Today’s Legal Updates

Monday, 2nd May 2022

Legal Awareness :- CONSTITUTION OF INDIA

Part – XIII TRADE, COMMERCE AND INTERCOURSE WITHIN THE TERRITORY OF INDIA

Article – 304   Restrictions on trade, commerce and intercourse among States

Notwithstanding anything in article 301 or article 303, the Legislature of a State may by law—
(a) impose on goods imported from other States [or the Union territories] any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced.
(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest:

Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President.

Today’s Legal Updates :-

  1. Today the Supreme Court ruled that while no individual can be forced to get vaccinated, the current vaccination policy followed by government as regards restrictions imposed on individuals, is not arbitrary.  (Dr Jacob Puliyel vs Union of India)
    • the Court ruled, This court is satisfied that current vaccine policy cannot be said to be manifestly arbitrary.
    • the bench said, Considering bodily autonomy, bodily integrity is protected under article 21. No one can be forced to get vaccinated. (But) government can regulate in areas of bodily autonomy.
    • the judgment stated, Till numbers are low, we suggest that relevant orders are followed and no restriction is imposed on individuals on access to public areas or recall the same if already not done.
    • the judgment said, Regarding segregation of vaccine trial data, subject to privacy of individuals, all trials conducted and to be subsequently conducted, all data must be made available to the public without further delay.
    •  the judgment, If there is a likelihood of such individuals spreading the infection to other people or contributing to mutation of the virus or burdening of the public health infrastructure, thereby affecting communitarian health at large, protection of which is undoubtedly a legitimate State aim of paramount significance in this collective battle against the pandemic, the Government can regulate such public health concerns by imposing certain limitations on individual rights that are reasonable and proportionate to the object sought to be fulfilled.
    • the petition, In India, the manner in which the vaccines have been licensed vitiates and even precludes the possibility that the vaccines can be evaluated objectively in the future.
    • If I am COVID recovered and vaccinated even then I will be at equal risk of transmitting it to others, if i am infected again. If vaccination is not helping in reducing the transmission, then it is my decision to get vaccinated or not. It is my decision and it is my life. Serological survey shows that more than 80 percent of Delhi’s population have had the infection. Mere assertion by the govt is not enough if I have produced evidence. Vaccine mimics a natural infection. There is no scientific journal in this world which disputes this proposition.
    • It is very clear from data that the people who have had infection is immune to reinfection. Vaccine is only mimicking a part of the virus and when you get the whole infection, you have the whole virus and thereby you develop all necessary anti bodies.
    • the Central government had said in its affidavit, At this juncture, the entire concentration of the Central Government and the State Governments should be and is on vaccination drive and encouraging people to get them vaccinated. It is, therefore, not desirable at this juncture to invest time finding out motives behind few elements attempting to act against the interest of nation at the cost of violating the right of crores of citizens to be protected from pandemic.
    • Below are the five takeaways from the judgment:–
      • No one can be forced to be vaccinated.
      • Central government directed to make public adverse effects of vaccination.
      • Current COVID vaccination policy is not unreasonable or arbitrary.
      • Vaccine trial data should be put in public domain.
      • Court cannot second guess scientific or expert opinion.
  2. On Friday the Supreme Court held that medical students who studied abroad cannot be granted provisional registration to practice in India without undergoing practical clinical training. (The National Medical Commision v. Pooja Thandu Naresh and ors)
    • the judgment, without practical training, there cannot be any Doctor who is expected to take care of the citizens of the country.
    • the judgment, Therefore, such national resource cannot be permitted to be wasted which will affect the life of young students, who had taken admission in the foreign Institutes as part of their career prospects. Therefore, the services of the students should be used to augment health infrastructure in the country.
    • the court observed, The Screening examination is based upon Optical Mark Reader (OMR) answers and has no correlation with any practical training. We do not find that in terms of the Screening Regulations, the students are entitled to the provisional registration.
    • the Bench held, No doubt, the pandemic has thrown new challenges to the entire world including the students but granting provisional registration to complete internship to a student who has not undergone clinical training would be compromising with the health of the citizens of any country and the health infrastructure at large.
    • the Bench passed the following directions to the NMC while disposing the appeal:-
      • Frame a scheme within two months for Indian medical students studying in foreign countries who are not able to complete their clinical training outside India due to inadvertent circumstances, so that the quality of medical education is not compromised. Training must be undergone in Indian medical colleges which must be identified by the NMC. The duration and the cost shall also be determined by the NMC which shall be borne by the students.
      • It shall be open to the appellant to test the candidates in the scheme so framed in the manner within next one month, which it considers appropriate as to satisfy that such students are sufficiently trained to be provisionally registered to complete internship for 12 months.
  3. On Monday Maneesha Kongovi has left Argus Partners to join IndusLaw as a Partner in the firm’s Dispute Resolution practice at Bangalore.
  4. On Monday the Gauhati High Court were stayed a Adverse remarks made by a District Judge against the Assam Police while granting bail to Congress leader Jignesh Mevani in an assault case. (State of Assam and Anr vs Jignesh Mevani and anr)
    • the High Court said, These observations were made without there being any materials on record, on which the learned Judge could have made such observations and consequently, this Court stays the above quoted observations until further orders.
  5. On Monday A Mumbai court directed the Enforcement Directorate (ED) to file a report from the medical officer of JJ Hospital on whether it has facilities for testing and treatment of Maharashtra Cabinet Minister Nawab Malik.
  6. On Monday A Muslim woman has approached the Delhi High Court opposing a petition seeking a declaration that the practice of Talaq-Ul-Sunnat is unconstitutional.
    • it said, o not be able to annul/terminate the contract at a valid instance would be grave injustice to either party and against the law of contract.
    • It is stated that there is equality between the sexes, and the manner in which the right to end the relationship operates works differently. Thus, the unqualified right of man in Islamic law is called Talaq Sunnat/Ahsan, and the unqualified right of the wife is called the right to seek “Khula”. The right of the wife to seek khula is unconditional and the husband cannot refuse to divorce if the wife asserts her right/khula. Thus, there is complete parity in the power to divorce and the difference lies only in the way of operation. Additionally, subject to contract, the husband can delegate the direct right to divorce which is recognized as talaq-e-tafweez or talaq by delegation.
  7. On Monday the Bombay High Court dismissed a public interest litigation (PIL) petition seeking a blanket restriction on the printing of photographs of Gods and Goddesses in newspapers.  (Advocate Firoz Babulal Sayyed vs. The Union of India & Anr.)
    • the bench remarked, It is within domain of legislature & even executive. What the petitioner intends to have is legislation through a judicial order.
    • the plea had said, Moreover the purpose for preferring this petition now is Pandemic of COVID-19 since last 1 ½ years i.e. showing photos of Idols(Gods) in newspapers will encourage public to celebrate festivals in crowds and invite COVID-19 excess cases.
  8. On Monday the Kerala High Court held that decriminalisation of the offence of attempt to commit suicide under Section 309 of the Indian Penal Code (IPC) is a more humane and effective way of dealing with the issue.  (Simi CN v. State of Kerala)
    • the Court observed in its judgment, From a societal perspective, decriminalization is a more sensitive and humane way of dealing with the problem compared to prosecution. Additionally, it will also help in improving the reporting and generation of better epidemiological data on suicidal behaviour. What is important is to give sociological and psychological support to the victim rather than trying to punish him.
    • the judgment stated, It is believed that a large section of the society considers that suicidal behaviour is typically a symptom of psychiatric illness or an act of psychological distress, suggesting that the person requires assistance in his personal and psychological life, not punishment with imprisonment or fine. Medical circles also believe that it is not an offence against the State, but, on the contrary, the State itself may be indirectly responsible for the plight of the victim who is left with no other alternative, except to end his life.
    • Section 115 of the Act saves the act of the petitioner from the penal provision. I am in respectful agreement with the observations made by the Orissa and Himachal Pradesh High Courts and therefore, the proceeding, if allowed to continue, is a clear abuse of the process of Court.
  9. On Monday the Bombay High Court affirmed the life sentence handed down by a sessions court to a 33-year-old man who killed his maternal aunt in 2010 by stabbing her 54 times.  (Saket Vikas Panase vs The State of Mahartashra)
    • Considering the overall facts and circumstances, the case of prosecution cannot be doubted just because no motive is attributed to the accused, or no investigation is carried out in relation to few articles which were found at the place to incident.
    • The High Court noted that-
      • The homicidal death of the deceased had not been disputed by the defence.
      • The evidence clearly showed that the accused was the only person present in the house with the deceased.
      • The accused’s call data record showed that he had made two more calls to his mother, though he claimed he fell unconscious after calling her the first time.
  10. On Monday the Supreme Court held that in the absence of any proof of dedication or user, a dilapidated wall or a platform cannot be conferred a status of a religious place for the purpose of offering prayers or Namaaz.  (Waqf Board Rajasthan vs Jindal Saw Limited)
    • the Supreme Court said, There is no evidence at any given point of time that the structure was being used as a mosque. There is no allegation or proof of either of dedication or user or grant which can be termed as a waqf within the meaning of the Waqf Act of 1995…. In the absence of any proof of dedication or user, a dilapidated wall or a platform cannot be conferred a status of a religious place for the purpose of offering prayers/Namaaz.
  11. On Monday the Delhi High Court sought the response of the Central government on a petition seeking a declaration that a Muslim man has to obtain written permission from his wife/wives before contracting another marriage.  (Reshma v Union of India and Ors)
    • In these cases, with the first wife’s consent, a man may marry again and this is referred to as Polygamy, a subset of polygamous marriages.
    • the petition stated, Polygamy is only permitted in certain circumstances, such as when the death of another man has left his wife with no other means of support. All wives are entitled to separate living quarters… It is submitted that Jurists are unanimous in their view that in Islamic societies. Polygamous marriage are permitted, but only in certain circumstances that is primarily in situations where a man’s death has left his widows with no means or support.
  12. On Monday the Supreme Court sought the response of the Central government on a plea challenging the decision of the Lakshadweep administration to close dairy farms and omit meat from the menu of mid day meal in schools on the Lakshadweep islands.  (Ajmal Ahmed R v. Union of India)
    • food, including meat, chicken, fish and egg, and other items, prepared and served to the school going children of Lakshadweep, as done in the past, should be continued until further orders. To make it clear, the earlier system should continue.
  13. On Monday the Bombay High Court called for response from the Home department of Maharashtra government in a public interest litigation petition seeking immediate steps to ensure that telephonic or electronic modes of communication is implemented in all prisons in the State.  (Peoples Union for Civil Liberties & Anr. v. State of Maharashtra)
    • CJ Datta remarked, Service has been effected in March, we are now in May. Today is first day, does not mean you take time. This is an important issue.
    • PUCL stated, When technology exists to bridge the geographic divide, not to use the same, especially in the light of fact that the technology was used and implemented successfully during pandemic would be extremely arbitrary and would amount to violation of the inmates’ constitutional rights.
    • The PIL, therefore, sought the following reliefs:-
      • To implement provisions of telephones or electronic modes of communication in terms of the Model Prison Manual in all prisons across Maharashtra.
      • Set aside any decision of the government to discontinue telephones or electronic modes of communication as the same is in violation of Articles 14, 19 and 21 of the Constitution of India.
      • To declare that the provisions of telephones or electronic modes of communication is covered under the scope of interviews as defined under Facilities to Prisoners of 1962.
  14. Last Week the Patna High Court granted bail to five students accused of armed rioting, unlawful assembly and wrongful restraint during the recent protests regarding Railways recruitment in Bihar.  (Akhilesh Pandey@Akhilesh Pandit & Ors vs State of Bihar)
    • Considering the facts and circumstances of the case, the court decided to grant the petitioners bail, subject to the following conditions:
      • Petitioners shall co-operate in the trial and shall be properly represented on each and every date fixed by the Court and shall remain physically present as directed by the Court and on their absence on two consecutive dates without sufficient reason, their bail bonds shall be cancelled by the Court below.
      • If the petitioners tamper with the evidence or the witness, in that case, the prosecution will be at liberty to move for cancellation of bail.
      • The court below shall verify the criminal antecedent of the petitioners and in case at any stage, it is found that the petitioners have concealed their criminal antecedents, the court below shall take step for cancellation of bail bond of the petitioners.
  15. On Monday the Allahabad High Court issued a non-bailable warrant to Mathura District Magistrate (DM) Navneet Chahal for contempt of court, stating that its order had been “violated with impunity”. (Braj Mohan Sharma v. Navneet Chahal DM Mathura)
    • It is very surprising that despite a clear mandate issued by this Court, the District Magistrate, Mathura sat over in appeal of the order passed by this Court.
    • It is pertinent to note that it is settled in law that if the order of this Court is not stayed or set aside, the order shall remain in force in letter and spirit and nobody can be allowed to violate the order or act in the teeth of order of this Court.
  16.  Former National Stock Exchange (NSE) head Chitra Ramkrishna, accused of frequently revising the designation and compensation of another former NSE employee Anand Subramanian, told a Special CBI Court that the decision was a collective one of NSE board which included former Supreme Court judge Justice B N Srikrishna, and not her individual decision.  (CBI v. Sanjay Gupta and Ors)
    • the Court said, Arguments heard at length on the bail application under Section 439 CrPC moved on behalf of accused Chitra Ramkrishna and concluded. Further arguments also heard at length on the second bail application under Section 437/439 CrPC moved on behalf of applicant/accused Anand Subramanian and concluded. Put up for orders on both the above bail application(s) on May 9, 2022.
  17. On Monday  Prof Anand Pawar has appointed as the new Registrar of the Rajiv Gandhi National University of Law (RGNUL), Patiala.
  18. On Saturday Chief Justice of India (CJI) NV Ramana endorsed concerns raised by Attorney General (AG) KK Venugopal regarding pending cases and vacancies in the district judiciary, and assured that the same would be addressed.
  19. On Monday the Delhi High Court issued notice to the Central government on a public interest litigation (PIL) petition filed by BJP leader and lawyer Ashwini Upadhyay seeking a direction to implement common syllabus in mother tongue for Central Board of Secondary Education (CBSE), Council For The Indian School Certificate Examinations (CISCE) well as all the other education boards.  (Ashwini Upadhyay v Union of India and Ors)
    • the petition, Education Mafias are very powerful and have a very strong syndicate. They influence rules, regulations, policies & examinations. The questions asked in the competitive exams are not taught in government schools. So, parents are in double jeopardy. First, they ·have to pay massive fees to private school and then pay unbearable heavy fees to coaching centers too.
    • The bitter truth is that school mafias don’t want One Nation-One Education Board, coaching mafias don’t want One Nation-One Syllabus and Book Mafias don’t want NCERT books in all schools. That is why uniform education system up to 12th standard has not been implemented yet.
    • Moreover, it doesn’t provide equal opportunity to all students as the syllabus-curriculum of CBSE, ICSE & State Board is totally different. Although harmonious-purposive construction of Articles 14, 15, 16, 21, 21A with Articles 38, 39, 46 confirms that education is the most important fundamental right & State cannot discriminate on the grounds of region, religion, race, caste, class or culture. Petitioner submits that ‘Right to Education’ implies ‘Right to Equal Education’ and it is the most important fundamental right as other rights are meaningless without implementing it effectively.
  20. On Monday Sonam Mathur has rejoined Talwar Thakore & Associates (TTA) after close to two years of working as an independent lawyer and as Counsel at Trilegal.
  21. On Monday the Central government has filed an application before the Supreme Court seeking extension of time to files its response to the plea challenging Section 124A of the Indian Penal Code (IPC) which criminalises sedition.
    • CJI Ramana had said, Dispute is it is a colonial law and was used by British and suppress freedoms and used against Mahatma Gandhi Bal Gangadhar Tilak. Is this law still needed after 75 years of independence? Our concern is misuse of the law and no accountability of the executive.
    • The tendency of the British to ensure complete allegiance and compliance of the Indian citizens not only in action but also in thought, is blatantly evident from the evolution of the law on sedition. It is relevant to note, however, that the Indian courts have largely crusaded against regarding every unpleasant word as ‘actionable’, championing the cause of the media.
  22. On Monday the Bombay High Court refused to grant anticipatory bail to a man employed with the Police Department, who has been booked for raping a woman under the pretext of false promise of marriage.  (Rupesh Koli vs State of Maharashtra)
    • the judges observed, It appears that the physical relations between Appellant (Koli) and the informant were going on for a long time but they were based on the promise of marriage given by the appellant to her. Subsequently, he did not take steps to marry her. His subsequent conduct shows that he never intended to marry her right from the inception.
    • the judges said dismissing the appeal, in the background of the averments made in the affidavit filed on behalf of the informant, possibility of pressurising her to settle the matter, cannot be ruled out. Hence no case is made out.
  23. On Monday the Supreme Court clarified that separate stamp duty need not be paid towards a power of attorney document signed along with an assignment deed executed under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act, 2002.  (Asset Reconstruction Co (India) Ltd vs Chief Controlling Revenue Authority)
    • the top court said, The High Court overlooked the fact that there was no independent instrument of PoA and that in any case, the power of sale of a secured asset flowed out of the provisions of the Securitisation Act, 2002 and not out of an independent instrument of PoA. Section 2(zd) of the Securitisation Act, 2002 defines a ‘secured creditor’ to mean and include an Asset Reconstruction Company. The appellant has acquired the financial assets of OBC in terms of Section 5(1)(b) of the Securitisation Act, 2002. Therefore, under sub­section (2) of Section 5 of the Securitisation Act, 2002, the appellant shall be deemed to be the lender and all the rights of the Bank vested in them.
    • n all taxing Statutes, there are taxing provisions and machinery provisions. Once a single instrument has been charged under a correct charging provision of the Statute, namely Article 20(a), the Revenue cannot split the instrument into two, because of the reduction in the stamp duty facilitated by a notification of the Government issued under Section 9(a).

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