Today’s Legal Updates

Wednesday, 2nd March 2022

Legal Awareness :- CONSTITUTION OF INDIA

PART III FUNDAMENTAL RIGHTS

Cultural and Educational Rights

Article – 31 Compulsory acquisition of property

Article – 31A Saving of laws providing for acquisition of estates, etc.

  1. Notwithstanding anything contained in article 13, no law providing for—
    • (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights,
    • (b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property,
    • (c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations
    • (d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders
      thereof.
    • (e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence,
      • shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by 1[article 14 or article 19]
      • Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:
      • Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.
  2. In this article,—
    • (a) the expression “estate” shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include –
      • (i) any jagir, inam or muafi or other similar grant and in the States of 4[Tamil Nadu] and Kerala, any janmam right;
      • (ii) any land held under ryotwari settlement;
      • (iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;
    • (b) the expression “rights”, in relation to an estate, shall include any rights vesting in a proprietor, subproprietor, under-proprietor, tenure-holder, 1[raiyat, under-raiyat] or other intermediary and any rights or privileges in respect of land revenue.

Today’s Legal Updates :-

  1. Today the Supreme Court prohibited mining activity in eco-sensitive zone in Odisha until State implements the Comprehensive Wildlife Management Plan suggested by the Standing Committee of National Board for Wildlife (NBWL).  (Binay Kumar Dalei vs State of Odisha)
    • State of Odisha is directed to implement the Comprehensive Wildlife Management Plan as suggested by the Standing Committee of NBWL before permitting any mining activity in the eco-sensitive zone. The State is also directed to complete the process of declaration of the traditional elephant corridor as conservation reserve as per Section 36A of the Act expeditiously,” 
  2. Today in Karkardooma Courts Delhi Umar Khalid counsel argued seeking bail in an Unlawful Activities (Prevention) Act case connected to the Delhi Riots, speaking up for a minority community when they are mistreated doesn’t make Umar Khalid communal. (Umar Khalid v. State)
  3. Today the Sony Music Entertainment India Pvt Ltd (Sony) has approached the Bombay High Court in a suit seeking permanent injunction against Ilaiyaraaja Music N Management Pvt Ltd (IMMPL) from infringing Sony’s copyright in sound recordings.
  4. Today the Dharwad Bench of the Karnataka High Court ruled a complaint regarding sex-selection of foetus under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act [PCPNDT Act/ Act] can be made only by the ‘appropriate authority’ under the Act. (Dhondiba Anna Jadhav and Anr vs State of Karnataka)
    • “Section 28 mandates that no Court shall take cognizance of an offence under the Act except on a complaint made by the Appropriate Authority concerned or any officer authorized in this behalf by the Central Government or the State Government as the case would be. Therefore, registration of a complaint is required to be done only from the hands of an appropriate authority. Thus, the complaint registered by the respondent Taluka Health Officer is without doubt without jurisdiction” 
  5. Today the Madras High Court strongly recommended the State government to provide a specific percentage of separate reservation for the Third Gender (TG) or transgender persons in matters of future public employments. (Saratha v The Member Secretary)
    • “The decision of Tamil Nadu Uniform Services Recruitment Board (TNUSRB) to combine the TGs, who had opted for female category, along with the vacancies reserved for Women deprives equality to them which is violative of Articles 14 and 16(1) of the Constitution of India,” 
  6. Today the Calcutta High Court reduced the prison sentence of a man accused of raping a 11-year-old girl, after noting that penetration was not established in the case.  (Dipak Singha v. State of West Bengal)
    • “It is settled law penetration even of the slightest degree is necessary to establish the offence of rape. An analysis of the evidence on record shows no case of penetration has been deposed either by the victim or other witnesses,” 
    • Although absence of injuries or non-rupture of hymen is not a sine qua non to prove the offence of rape, in the factual matrix of the case where the victim herself states that the appellant attempted to rape her absence of injuries in her private parts corroborate the conclusion that the case was one of attempt to commit rape.
    • Under such circumstances and in view of the alteration of his conviction as aforesaid, I modify the sentence imposed on him and direct the appellant be sentenced to suffer imprisonment for the period already undergone and to pay a fine of ₹10,000 in default, to suffer rigorous imprisonment for six month more.
  7. Today the Bombay High Court expressed its disappointment at the Maharashtra government refusing to relax restrictions on people who are not fully vaccinated against COVID-19, from travelling on local trains or using other public facilities. (Feroze Mithiborwala v. State of Maharashtra & Ors. and connected matters)
    • “Having regard to the gross violations due to the imposing of restrictions since August 2021, it would have been better for us to strike down the subsequent orders issued by the State taking suo motu cognisance. However, we had expressed hope and trust that the State would impose reasonable restrictions and not breach the citizens’ fundamental rights under Article 21. We were mistaken,” 
  8. Today Malayalam news channel, MediaOne has moved the Supreme Court challenging a Kerala High Court judgment which had upheld the Central government’s decision to revoke the broadcasting license of the channel.
  9. Today Advocate Prashant Bhushan told the Supreme Court that it was unethical and irresponsible to use untested COVID-19 vaccines on children. (Jacob Puliyel v Union of India)
    • Chance of dying due to vaccine itself is more for a child than chances of dying due to Covid. Now it is being mandated,”
    • I have decided that I will not take this vaccine and it will cause me more harm than good. What I have studied in 2 years is that if you are healthy, the chance you get Covid is virtually nil. The long term effects of vaccines is not there.”
    • Such mandate cannot put a fetter upon the right to access essential goods and services…Welfare policy of vaccination cannot affect right to life and livelihood, and there is no reasonable nexus too.”
    • Can we go into this area which is an area of expertise? You have expertise Mr. Bhushan, with your two years of research. But we don’t have it,” 
    • If you take us deep into this area, we don’t understand this area. Science is a space of opinion, your opinion may be different than the other.”
    • Among all the judges, almost all were vaccinated, but even then they got infected with Omicron, and the same is with people I know,” 
    • The Brazil regulator had refused approval for Covaxin of Bharat Biotech. Similarly, various countries have been actively monitoring adverse events following immunisation. UK has recorded 1 among 106 as adverse effect recipients of AstraZeneca vaccine,” 
    • We are being mandated to take vaccines of those whose Phase 3 data is not available; the material presented to the drug control authority is not presented to the public. Where is the question of informed consent?
  10. A public interest litigation (PIL) petition has been filed before the Bombay High Court seeking directions to all airlines, railways, shops and restaurants to compulsorily provide conspicuous labelling on all meat products, as “Humane” and “Non Humane”.
  11. Today the Dharwad Bench of the Karnataka High Court held that maintenance awarded under the Protection of Women from Domestic Violence Act cannot be enhanced under the provisions of the Code of Criminal Procedure (CrPC).  (Shivanand v. Basavva)
    • The respondent-wife had filed a petition for maintenance from the petitioner-husband under Section 12 (application to Magistrate) of the Domestic Violence Act, upon which she was granted maintenance of ₹1,000.
    • Subsequently, she filed a petition under Section 127 (alteration in allowance) of the CrPC for enhancement of the maintenance amount. The petition was allowed by the Magistrate and the maintenance was increased to ₹5,000.
    • “A maintenance that is awarded under Section 125 of the Cr.P.C. can be varied in an application filed under Section 127 of the Cr.P.C. What is sine qua non is that an order of maintenance should precede a petition under Section 127 of the Cr.P.C., failing which, a petition under Section 127 of the Cr.P.C. seeking enhancement of maintenance is not available.”
    • “It is also an admitted fact that there is no proceeding initiated by the respondent-wife invoking Section 125 of the Cr.P.C. Therefore, without there being any determination of maintenance under Section 125 of the Cr.P.C., petition under Section 127 of the Cr.P.C. is not maintainable.”
  12. Today the Gujarat High Court stressed on the importance of courts providing grounds and reasons for an order, while stating that proper reasoning is the heartbeat of court orders. (Ayeshaben v Huriben Ismail Ali)
  13. Today the Bombay High Court sought the response of the Enforcement Directorate (ED) in the Habeas Corpus petition filed by Maharashtra Cabinet Minister Nawab Malik challenging the case of money laundering registered against him by the ED and seeking his immediate release from custody.
    • the Court directed, “We are adjourning petition by granting time till March 7, 2022 to ED to file reply. Any subsequent remand if granted, the same shall be without prejudice to rights and contentions of both parties,” 
  14. The Delhi Police has filed a supplementary chargesheet in cases against several persons under the Unlawful Activities (Prevention) Act (UAPA) emanating from the Delhi Riots of 2020.
  15. Today the Bombay High Court permitted Anand Teltumbde, one of the accused in the Bhima Koregaon violence case, to visit his mother in Chandrapur, Maharashtra from March 8 to 10 after his brother and wanted accused, Milind Teltumbde’s death.
    • the Court said, “Death is a death. He may be an accused, he may have been involved in (illegal) activities.. but then ultimately he was present applicant’s brother. There has been a loss of human life,” 
      • That chargesheet runs into thousands of pages and NIA admittedly intends to examine more than 200 witnesses; due to this it would take years to complete the trial and that would mean continued incarceration for years;
      • That object of bail is to secure attendance of accused at the trial, bail should not be withheld as a punishment.
  16. Today the Kerala High Court stated that while the material handed over to it in a sealed cover by the Union Ministry of Home Affairs did not indicate the depth of the issue surrounding the MediaOne ban, there were still indications that national security and public order may be impacted.  (Madhyamam Broadcasting Limited v. Union of India & Ors)
    • It can be seen that the Apex Court, while emphasizing the relevance and importance of the freedom of Press, makes it abundantly clear that the restrictions contained under Articles 19(3) and (4) of Constitution of India dealing with public order include the security of the State,
    • “…even though too many details are not available in the files produced before us, we are of the view that there are certain aspects affecting the public order or the security of the State on the basis of the report of the Intelligence Bureau and other Investigating agencies.”
    • The security of the State and the public order are very vital for the fair and smooth functioning of the nation and therefore, significance and importance shall be provided to the interests of the citizens of this country, rather than other aspects“,
  17. A petition has been filed before the Delhi High Court challenging the Delhi government’s decision prohibiting any discount, rebate or concessions by retailers on sale of liquor.  (Bhagwati Transformer Corp. and Ors v Government of NCT of Delhi)
    • “Discounts were permitted and the licensees were indeed giving and adopting discounts. This was based on such arrangements as licensees could enter into with L 1 licensees, and this was free market and fair competition principles in operation,” 
    • “…the rules of the game cannot be changed after the game has begun. Power to amend the tender does not exist after the bids are finalized and licenses issued. Clause 15 .2 of the tender would have to be construed as limited to the time until the last date of bids, and not thereafter, else any other interpretation would render the same unconstitutional,” 
    • “It is the survival of the fittest. It is not explained or specified in the order, except using umbrella terms, how healthy competition, market forces and consumer choices are being affected by the discounting,” 
  18. A special court in Mumbai refused to grant bail to Abdul Kadar Shaikh, an alleged drug supplier arrested in the cruise ship drug case in which Aryan Khan, son of Bollywood actor Shahrukh Khan, is the prime accused.
    • “As discussed above, commercial quantity of 54.3 gms. of MD and 2.5 gms. Ecstasy has been recovered from the applicant/accused. Considering the evidence on record it cannot be said that there are reasonable grounds for believing that applicant/accused no.9 is not guilty of such offence and he is not likely to commit such offence while on bail”,
  19. Today the Delhi High Court denied bail to Avantha Group promoter Gautam Thapar, who was arrested in connection with the Yes Bank loan fraud case.  (Gautam Thapar v. Directorate of Enforcement)
  20. Today the Supreme Court reiterated that government authority is not bound to accept the highest bid in an auction and the acceptance of highest bid is always subject to conditions of holding public auction. (State of Punjab and ors v. Mehar Din)
    • This Court has examined right of the highest bidder at public auctions in umpteen number of cases and it was repeatedly pointed out that the State or authority which can be held to be State within the meaning of Article 12 of the Constitution, is not bound to accept the highest tender of bid. The acceptance of the highest bid or highest bidder is always subject to conditions of holding public auction and the right of the highest bidder is always provisional to be examined in the context in different conditions in which the auction has been held,” 
    • ” … the High Court was not supposed to interfere in the opinion of the executive who were dealing on the subject, unless the decision is totally arbitrary or unreasonable, and it was not open for the High Court to sit like a Court of Appeal over the decision of the competent authority and particularly in the matters where the authority competent of floating the tender is the best judge of its requirements, therefore, the interference otherwise has to be very minimal.
  21. Today the Allahabad High Court refused to quash criminal proceedings registered against an administrator of a WhatsApp group on which an image depicting Prime Minister Narendra Modi with the face of a pig was allegedly shared. (Mohd Imran Malik v. State of Uttar Pradesh)
    • “From the perusal of the record it appears that the applicant was a ‘group admin’ and he is also a co-extensive member of the group. In view of the above, I do not find any cogent reason to interfere. The application under Section 482 Cr.P.C. is dismissed, accordingly.”
  22. Today the Supreme Court held that while deciding whether or not an accused has committed an offence, it is necessary for the Magistrate to consider the chargesheet submitted under Section 173(2) of Code of Criminal Procedure (CrPC) as well as the supplementary chargesheet which is submitted after further investigation in terms of Section 173(8) of CrPC.  (Luckose Zachariah VS Joseph Joseph)
    • the Court said, “Both the reports have to be read conjointly by analyzing the cumulative effect of the reports and the documents annexed thereto, if any, while determining whether there existed grounds to presume that the appellants have committed the offence,” 
    • “The Magistrate not having done so, it was necessary to restore the proceedings back to the Magistrate so that both the reports could be read conjointly by analyzing the cumulative effect of the reports and the documents annexed thereto, if any, while determining whether there existed grounds to presume that the appellants have committed the offence,” 
  23. Today the Kerala High Court upheld the Central government’s decision to revoke the broadcasting license of Malayalam news channel MediaOne.  (Madhyamam Broadcasting Limited v Union of India & Ors)
  24. Today Sourasubha Ghosh has joined IndusLaw as a Partner in the firm’s Dispute Resolution practice at Mumbai.

Legal Prudent Fraternity