Today’s Legal Updates

Wednesday, 31st May 2023

Legal Awareness: – CONSTITUTION OF INDIA

Part – IX THE PANCHAYATS

Article – 243L Application to Union territories.

The provisions of this Part shall apply to the Union territories and shall, in their application to a Union territory, have effect as if the references to the Governor of a State were references to the Administrator of the Union territory appointed under article 239 and references to the Legislature or the Legislative Assembly of a State were references, in relation to a Union territory having a Legislative Assembly, to that Legislative Assembly:
Provided that the President may, by public notification, direct that the provisions of this Part shall apply to any Union territory or part thereof subject to such exceptions and modifications as he may specify in the notification.

Today’s Legal Updates: 

  1. On Wednesday the Karnataka High Court ruled that rape on the dead body of woman (necrophilia) would not attract the offence of rape under Section 375 of the Indian Penal Code (IPC). (Rangaraju @ Vajapeyi v State of Karnataka)
    • A bench of Justices B Veerappa and Venkatesh Naik also said that it would not come within the scope of unnatural offences under Section 377 of IPC.
    • the Court said, A careful reading of Sections 375 and 377 of IPC makes it clear that a dead body cannot be called a human or person. Therefore, the provisions of Section 375 or 377 would not be attracted.
    • the Court ordered, The Central Government is hereby recommended to amend the provisions of the IPC as stated supra in order to protect the dignity of the body of the deceased in order to ensure to protect persons right of life includes right of his dead body as contemplated under Article 21 of the Constitution of India within a period of 6 (six) months from the date of receipt of certified copy of this order.
    • It cannot be termed as rape punishable under Section 376 of the Indian Penal Code. Utmost it can be considered as sadism, necrophilia and there is no offence made out to punish under Section 376 of the Indian Penal Code.
    • The said material aspect has not been considered by the learned Sessions Judge, thereby erroneously convicted the accused under the provisions of Section 376 of IPC in the absence of any provision attracting the offence under the provisions of Indian Penal Code.
    • the Court concluded,The material on record clearly establish that, based on aforesaid circumstances the prosecution has proved beyond reasonable doubt that accused is guilt of homicidal death of deceased and the evidence on record is consistent only with the hypothesis of the guilt of accused.
    • Right to dignity is also expanded to a dead person.”
  2. On Wednesday the Allahabad High Court held that individuals have the fundamental right to change their names as per their personal preference and this right comes within the scope of right to life under Article 21 of the Constitution.
    • In an order passed on May 25, single-judge Justice Ajay Bhanot observed that a name is of universal human value and a cherished right across jurisdictions. 
    • the Court said, The intimacy of human life and a person’s name is undeniable. The right to keep a name of choice or change the name according to personal preference comes within the mighty sweep of the right to life guaranteed under Article 21 of the Constitution of India. The importance of a name is an universal human value and a cherished right across jurisdictions. The fundamental right to keep or change a name is vested in every citizen by virtue of Article 19(1)(a) and Article 21 of the Constitution of India. But it is not an absolute right and is subject to various reasonable restrictions as may be prescribed by law.
    • the judge emphasiesd, This constitutes violation of right to equality under Article 14 of the Constitution of India. The restrictions contained in Regulation 40 () are disproportionate and fail the test of reasonable restrictions on fundamental rights under Articles 19(1)(a), 21 and 14 of the Constitution of India. They are arbitrary and infringe the fundamental right to choose and change own’s name vested by virtue of the Constitution of India.
  3. On Wednesday the Telangana High Court made it clear that media channels cannot make personal remarks against judges by using derogatory language as it affects the image of judicial institutions.
    • Justice M Laxman expressed his strong objection to some of the primetime debate programs telecast by Mahaa News and ABN News Telegu in connection with the Avinash Reddy bail case.
    • Before I delve into facts of present petition, I felt to place on record certain attempts by selective media to thwart and derail judicial process by making attempts to tarnish my image and attempts to intimidate and threaten to derail independent thought process in arriving just decision in this matter. The individuals of selective media facilitated and abetted by airing views of selective personnel of their choice with conscious knowledge of their antecedents to intimidate, to threaten and to damage my reputation by personal attack.
    • the judge said, Day by day, reputation of such important institution is eroding but for some individuals. One of the participant, who is suspended and detained judge made direct attack by saying “money bags went to Judge”. Other participant who seems to be holding respectable office used derogatory language (“Cheyyendra”) and gestures which are aimed to tarnish my comprehension and competency abilities by his mis-interpretation and misunderstanding of deliberations of Court proceedings.
    • All that concerned me is inroads of such actions to damage institutional image. It is high time to protect image by concerted efforts. I am greatly hurt not by individual comment but facilitation and abetment done by selective media.
    • Justice Laxman in his order said, At one stage, I thought of recusal, but for direction of the Apex Court and remindful of oath of office particularly “discharge of duties without fear”, I changed my mind.
  4. On Wednesday the Kerala High Court held that Debt Recovery Tribunals (DRT) should apply their mind with reference to the contentions taken before it while granting even interim orders on applications moved under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act).  (Jimmy Thomas v Indian Bank)
    • Justice Gopinath P noted that the judgment of the Supreme Court in Mardia Chemicals Ltd. v. Union of India makes is amply clear that DRTs must be cognizant of the fact that the powers conferred under the SARFAESI Act are drastic, which can have disastrous consequences for the borrower.
    • the Court, This finding of the Supreme Court, in my view, emphasises the fact that in the initial stage of proceedings under the SARFAESI Act, there is absolutely no adjudication. This view of the Supreme Court also makes it clear that when an application is brought before the Tribunal, under Section 17 of the Act, the Tribunal must be alive of the fact that the Bank/Financial Institution has initiated the proceedings without any adjudication and that the powers conferred under the Act are drastic and can have disastrous consequences for the borrower. This is all the more reason for the Tribunal to apply its mind with reference to the contentions taken before it (even at the interim stage) before deciding to grant or reject a prayer for interim relief.
    • the Court said in judgment, While it may not be necessary to the Tribunal to write a detailed order touching upon merits of each and every contention taken before the Tribunal as well as the response by the banks/financial institutions to such contentions, the order of the Tribunal must, on a reading, indicate that it was alive to the contentions raised in the Securitization Application.
    • the order, The orders issued by the Tribunal must therefore demonstrate reasonableness of its decision by demonstrating therein its experience and expertise as held in Prodair Air Products. Further a judicial order sans reason does not pass the test of fairness and reasonableness.
    • the Court observed, To say the least, the orders are clearly of the ‘cut, copy, paste’ category and does not reflect any application of mind by the Tribunal ..All the impugned orders record that the Tribunal is not entering into the merits of the matter at all. This is clearly a failure on the part of the Tribunal to exercise a jurisdiction vested in it.
    • the Court said, This is not palatable to our judicial ethos.
  5. On This Week the Karnataka High Court upheld the constitutional validity of Section 37A of the Foreign Exchange Management Act (FEMA). (Xiaomi Technology India Pvt Ltd v. Union of India)
    • Justice M Nagaprasanna held that a non-citizen can challenge certain laws of the nation on the ground that it is violative of Article 14 of the Constitution.
    • the order stated, What would unmistakably emerge is that Articles 14 and 21 of the Constitution of India, the nation’s Grundnorm would be available to every person and they are not restricted to the citizens of the country only.
    • What would unmistakably emerge is that Section 37A of the Act does not suffer from any manifest arbitrariness for this Court to strike it down on any of the grounds urged by the petitioner.
    • Therefore the first issue that has arisen for consideration qua maintainability is answered in favour of the petitioner holding the petition to be maintainable qua the challenge.
    • It is not, a rung or two rungs, of safeguards and checks, but it is at every rung. The seizure order under sub-section (1) to become final has to pass muster through several ladders of administrative, quasi judicial and judicial review.
    • There are several procedures after such seizure. Therefore, the submission that it is manifestly arbitrary is to be noted only to be rejected, as the very submission is fundamentally flawed.
    • It is in great detail. It runs into more than 250 pages. It is not the number of pages that matters, but the content in those pages which clearly indicate application of mind.
  6. On Wednesday the Delhi High Court held that an investigating agency cannot file a police report/chargesheet without completion of its investigation only to defeat an accused’s right to statutory bail under Section 167 of the Code of Criminal Procedure (CrPC).  (Central Bureau of Investigation v Kapil Wadhawan & Anr)
    • Justice Dinesh Kumar Sharma said that to fulfil the provisions of Section 167, chargesheet must be filed upon completion of investigation.
    • the order, It has repeatedly been held that merely because cognizance has been taken, the right to statutory bail cannot be extended or defeated. The basic parameter is that the charge sheet has been filed after the completion of the investigation or not. We have not to go by the label of the charge sheet but to examine whether actually investigation has been completed or not. If the investigation is not completed then merely because the report has been filed, the right of statutory bail cannot be defeated. Certainly it depends upon the facts of each case and no fixed formula can be laid down in this regard.
    • The purpose is that if an offence has been committed it must reach to its logical end. The detention during investigation or trial cannot be turned into a punitive detention. It is also a settled proposition that further investigation can be conducted only after the investigation is complete.
    • Merely, filing of the chargesheet, whether incomplete or piecemeal cannot defeat the basic purpose of Section 167 (2) Cr. P.C. The Court at this stage, also cannot be expected to minutely appreciate the evidence, so as to ascertain whether the same is “sufficient evidence or not.
    • I consider that the order passed by the learned Sessions Judge is based on good reasoning and logic. There is no illegality or perversity in the order of the learned Sessions Judge. I do not find any force in the arguments of learned SPP that once the charge sheet had been filed qua the respondents, the right of the statutory bail could not have been granted to them.
  7. On Wednesday the Delhi High Court dismissed a public interest litigation (PIL) petition challenging the appointment of Professor Yogesh Singh as Vice-Chancellors (VC) of the University of Delhi (DU).
    • A Division Bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad rejected the plea noting that it was filed based on news reports.
    • the Court remarked while dismissed the plea with costs, Newspaper reports are not Bhagwad Gita.
    • the CJ Satish Chandra Sharma remarked, We will not permit you to withdraw it [the petition] when the President of India is involved… The kind of reckless allegation you have made in your petition… Based on newspaper clippings you have filed a PIL so you have to face the consequences.
    • the Court ordered, Dismissed with costs.
  8. On Wednesday the Calcutta High Court reaffirmed its order granting bail to an accused after the Supreme Court had set aside the same, observing that human liberty is most valuable to every civilized human being.  (Prabha Surana v. State)
    • A Bench of Justices IP Mukerji and Biswaroop Chowdhury held, When it is said that the gravity of offence would be a factor in determining whether bail is to be granted, it does not mean that the court has to adjudicate on the elements of the crime or the charges to find out its nature, extent and depth. On the basis of the charges framed, the court is only required to ascertain the nature of the crime.
    • the Court observed, By 2020 the petitioner would have destroyed whatever evidence it wanted to destroy to absolve her of the crime. If she did not, in my opinion, there is little chance of its destruction now.
    • the Court held, She has surrendered her passport with the investigating agency. Furthermore, there is little scope of recovery of more evidence to convict the accused…Just a mere submission that more investigation is required, is not enough unless some proof is laid before the court that there are some materials on which further charges can be framed and that the accused is in a position to tamper with that evidence or otherwise interfere with the trial.
  9. On Wednesday the Allahabad High Court confirmed a Varanasi court order that had deemed maintainable a suit filed by Hindu parties seeking rights of worship inside the Gyanvapi Mosque. (Committee of Management of Anjuman Intezamia Masjid Varanasi v. Smt Rakhi Singh)
    • The case arose after Hindu devotees approached the civil court claiming the right to worship inside the premises of the Gyanvapi Mosque, on the ground that it was a Hindu temple and still houses Hindu deities.
    • The Muslim parties had then filed an application under Order VII Rule 11 of the CPC challenging the maintainability of the suit on ground that the Places of Worship Act of 1991, which was introduced at the height of the Ram Janmabhoomi movement, seeks to protect the status of all religious structures as it stood on August 15, 1947.
  10. On Wednesday the Kerala High Court said that mobile phones have become a part and parcel of human life and there is lack of evidence to support claims of harmful effects of radiation from mobile towers.
    • Single-judge Justice PV Kunhikrishnan made the observations when an advocate sought urgent hearing of a case against the erection of a new mobile tower.
    • the judge asked, Counsel, don’t you have a mobile? Didn’t the petitioner use a mobile phone to call you and inform you of this tower? Who can live without a mobile these days?
    • the judge queried, This is covered by so many judgments. What will happen if there is a mobile tower? Radiation? Where is the evidence?
    • the Court said, Nothing will happen. We will hear it tomorrow only.
  11. On Wednesday the Telangana High Court granted anticipatory bail to Kadapa Member of Parliament (MP) YS Avinash Reddy (petitioner) in connection with the YS Vivekananda Reddy murder case.
    • Single-judge Justice M Laxman said that there is no direct evidence is available against the petitioner to prove his participation in larger conspiracy and the entire case rests upon hearsay evidence.
    • the Court said in order, The gravity of accusation is not yet clearly brought on record by the CBI so far. The entire case rests upon hear-say evidence and assumptive evidence. No direct evidence is available against the petitioner to prove his participation in larger conspiracy. They tried to rely upon the improved case of the witnesses and the approver.
  12. On Wednesday the Kerala High Court dismissed a public interest litigation (PIL) petition seeking relocation of rogue elephant Arikomban back to Kerala.  (Sabu M Jacob v Union of India)
    • The pachyderm has been foraging into the Chinnakanal area in Kerala’s Idukki district causing damage to the property in the human settlement areas. On 29th April Arikkomban was translocated to Periyar Tiger Reserve after a radio collar was fixed on him.
    • the bench asked orally, If the Tamil Nadu government has graciously taken it, why interfere with it? You don’t say in the plea, why it has to be brought in Kerala?
    • the Bench said, What really is the intent of this litigation, I doubt it. They are facing more fear, our fear is lessened.
    • the bench queried, What is your expertise to get into this? What is the expertise of the court to deal with the situation in Tamil Nadu? What do you think the Madras High Court is not capable of doing so? If you have any problem you or any other, you may approach the Madras High Court. We have doubts about the bona fides of your prayer. As in the person who made the prayers. Are you saying the injuries on the trunk, were caused by the acts of the Tamil Nadu Government and people?
  13. On Wednesday the Delhi High Court restrained more than 100 rogue websites from streaming or hosting the upcoming animated film Spider-Man: Across The SpiderVerse and its prequel Spider-Man: Into The Spider-Verse.
    • Justice C Hari Shankar directed the internet service providers (ISPs) to block access to these websites while also ordering the government authorities to issue a notification in this regard.
    • the Court ordered, Defendants 1 to 101 (rogue websites), as well as all others acting on their behalf, are restrained from posting, streaming, reproducing, distributing or making available to the public, on their websites, or through the internet, in any manner whatsoever, any cinematograph work/content/program in which the plaintiff has copyright, including the films “Spider-Man: Across The SpiderVerse” and “Spider-Man: Into The Spider-Verse.
  14. On Tuesday the Karnataka High Court dismissed a Public Interest Litigation (PIL) challenging a 2008 Presidential Order converting the High Court’s circuit benches at Dharwad and Kalaburagi into permanent benches. (NP Amrutesh v. Union of India)
    • A Division Bench of Justices B Veerappa and KS Hemalekha rejected the plea filed by advocate NP Amrutesh, stating that there was absolutely no public interest made out.
    • the order stated, In fact, it is against the public interest and against the people starving for justice, ignoring the dictums of this Court and the Hon’ble Supreme Court.
    • A court complex is not just a building. It is the building of justice which breathes and infuses life into the exalted and sublime ideals of justice. The widening gap between the ideal and the real and between the vision and the pragmatic realisation of justice has to be bridged by proper access to justice for all.
    • the establishment of permanent benches of the High Court at Dharwad and Kalaburagi ensures speedy and qualitative justice to the needy citizens of North Karnataka to their door steps.
    • One cannot assume or impute to a high constitutional authority, like the Chief Justice of India, such procedural or substantive error. If Parliament has reposed faith in the Chief Justice of India as the paterfamilias of the judicial hierarchy in this Country, it is not open for anyone to contend that the Chief Justice of India might have given his concurrence without application of mind.
  15. On Wednesday the Gauhati High Court asked Assam education department officials to ensure implementation of the Right to Education (RTE) Act and disregard lame excuses given by private schools in Guwahati for not implementing the Act.  (We for Guwahati Foundation and ors v. State of Assam and ors)
    • A Bench of Chief Justice (CJ) Sandeep Mehta and Justice Arun Dev Choudhury was responding to submissions made by counsel for the education department, who highlighted the reasons cited by private schools for delay in admitting students under Act.
    • CJ Mehta told the department, These are lame excuses … do not [just] follow directions blindly, apply your mind.
    • the CJ said, Articles purchased from the school is never voluntary. Virtually every school squeezes parents to do that. Do not even think of (relying on that).
    • the CJ remarked, Why are you required to make such statements? Why do you need to retort outside the court?
  16. On Tuesday the Kerala High Court observed that banks should not deny education loans to students merely because their CIBIL score (credit score computed by Credit Information Bureau (India) Limited) is low.  (Noel Paul Fredy v State Bank of India)
    • Justice PV Kunhikrishnan observed that students are the nation builders of tomorrow and, therefore, a humanitarian approach is necessary when banks consider education loan applications.
    • the Court said, While considering Education Loan application, a humanitarian approach is necessary from the Banks. Students are the nation builders of tomorrow. They have to lead this country in future. Simply because, there is low CIBIL score to a student, who is an applicant for Education loan, I am of the considered opinion that, Education loan application ought not have been rejected by Bank.
    • the Court said in its interim order, Here is a case, where the petitioner obtained a job offer too. Banks may be hyper technical, but a court of law can not ignore the ground realities. Therefore, I am of the considered opinion that the respondents shall disburse the loan to the College of the petitioner forthwith. Therefore, there will be a direction to the respondents to sanction and disburse the education loan of ₹4,07,200 to the College of the petitioner forthwith.
  17. On Wednesday the Calcutta High Court quashed a defamation complaint lodged against BJP leader Suvendu Adhikari on the ground that it was not filed before an appropriate court.  (Suvendu Adhikari vs State of West Bengal)
    • Single-judge Justice Bibek Chaudhari said that the complaint is triable before a special Magistrate or a special court designated to hear cases against Members of Parliament (MP) and Members of Legislative Assembly (MLA).
    • the bench said, Without going into the merit of the case this Court fails to understand as to how the Chief Judge took cognizance of the offence. This criminal case shall have to be instituted and tried before the competent Court of the Magistrate.
    • the bench held, This case is exclusively triable by the special Magistrate or the Special Judge for trial of cases relating to MPs and MLAs in the State. Therefore, the initial cognizance and the order of issuance of process is bad and I do not require even the assistance of the Public Prosecutor to quash the proceedings of Complaint.
    • the judge made it clear, The complainant is at liberty to take back the written complaint and file the same in the appropriate Court.
  18. On Monday the Karnataka High Court reprimanded the State government for its failure to adequately provide drinking water and washroom facilities for girls in government schools across the State.
    • While hearing a public interest litigation (PIL) petition, a division bench of Chief Justice PB Varale and Justice MGS Kamal chastised the government, calling this a sorry state of affairs.
    • the Court asked, What are these school inspectors.. are they supposed to submit their periodical reports? Have you verified that such reports were submitted? Even if they have, what is the use? What is the superior officer doing.
    • the Court demanded, Are the inspectors only sitting in their office? Should they not periodically visit school and the superior office should issue directions.

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