Weekend’s Legal Updates

Saturday & Sunday, 3rd & 4th June 2023



Article – 243O Bar to interference by courts in electoral matters.

Notwithstanding anything in this Constitution,—
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any court.
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.

Weekend’s Legal Updates: 

  1. On Saturday (a special sitting was held on Saturday noon) the Directorate of Enforcement (ED) informed the Delhi High Court that there was unauthorised removal of documents related to the excise policy scam from the office of Special Secretary (Vigilance).
    • The submission was made before Justice Dinesh Kumar Sharma during the hearing of the arguments in the interim bail plea filed by Aam Aadmi Party leader and former Delhi minister, Manish Sisodia.
    • Hossain said, Documents [related to Excise policy case] are still being tampered with. An FIR has been registered.
    • Senior Advocate Mohit Mathur appeared for Sisodia and objectedhe said Are they still investigating? I am behind bars. This is an argument of prejudice
    • Hossain argued, He has said that he was the sole caretaker [of his wife]. Please see, he held 18 portfolios. It included finance, education, labour, vigilance, PWD, health, power, home, irrigation and flood control. He could not have been the sole caretaker.
    • Mohit Mathur asked, What kind of jurisprudence are we heading towards?
    • Mathur added, Yes, he is the only caretaker. The only son is studying abroad. Would it make a person less of a caretaker if he is holding 18 portfolios? We are busy and dealing with multiple cases throughout the day. But don’t we go back home at the end of the day, and are we not the caretakers of the family?
  2. On Saturday a special sitting held the Supreme Court stayed an order of the Allahabad High Court that had directed the astrology department of Lucknow University to study a woman’s kundali (horoscope or birth chart) to find out whether she is a mangalik.
    • A Bench of Justices Sudhanshu Dhulia and Pankaj Mithal, therefore, stayed the order and directed the High Court to decide the bail plea of the accused on merits.
    • the top court ordered, This Court takes a Suo Motu cognizance of this case which has been placed before us. The order passed by the learned Single Judge of the Allahabad High Court(Lucknow Bench) on 23rd May, 2023 while considering a bail application is the subject matter of this case. At this stage, we say nothing on the merits of the case, except that in the interest of Justice, the operation and effect of this order so far as it gives directions to the Head of the Department (Astrology Department), Lucknow University must be stayed. We make it clear that the matter will be taken up on merits of the bail application by the High Court on 26th June, 2023 which is the date already fixed in the matter.
    • SG Mehta argued, Nobody is questioning whether it can be decided a manglik or not and astrology is a science. But here the question is can the court order get into this.
    • the bench remarked, We do not understand why is this astrology report called for. We stay the order and ask the High Court to decide bail plea on merits.
    • the order noted, We expect to have before us the contentions/objection of all the parties before the next date of hearing.
  3. Over five years after the historic press conference by four Supreme Court judges, two of the retired judges who were part of the same recounted the circumstances that led to it.
    • Justice Chelameswar said, There was need for some course correction and we thought people of this country should know and ultimately people should decide what to do. As a free citizen I am entitled to place views on record, everyone joined voluntarily. No one was brought forcefully though a picture was sought to be painted since it was my residence.
    • Justice Joseph said, There is something called master of roster and he (Chief Justice of India) decides which case goes before which bench. We both had been Chief Justices of High Courts. I believed the press conference will send a signal. In six years of Supreme Court there were three full courts held.. but in high courts such full courts are held once in six months. Otherwise there is arbitrariness. After the press conference, there were in house meetings of several incoming Chief Justices including the present Chief Justice DY Chandrachud so that such a situation can be avoided. We thought it (press conference) will help in streamlining the distribution of work. There have been judges who never headed a constitution bench and there were judges who headed such benches one after another. This was the triggering point for me for that press conference. There was no consultation at all. I did not see any signs of change thereafter. I hope and pray that the present CJI who had mooted some ideas will remember them and take the institution ahead in the interest of administration of justice.
    • Justice Chelameswar said, I found it difficult to believe that elected government would have no say in appointment of judges in a democratic country. To tell them you will have no role in appointment, I could not agree. I believe the dissent was a correct legal principle.
    • See some recommendations are made, not acted upon and the collegium then withdraws it. What does this indicate it; something fundamentally wrong with the logic. If process is transparent then accountability will increase.
    • Justice Chelameswar said, In the last 75 years in the institution of Supreme Court, a great paradox has come into existence. The highest court of the country should sit as one body while laying down the law. But we have 16 to 17 division benches and then what happens is that there are conflicting views. Then reference to larger bench of 9 judges and some matters pending since 20 years for 9 judges hearing.
    • When all the turmoil was going on, there was complaints about one High Court judge and it appears the then Chief Justice of India [CJI] ordered an in-house inquiry against the particular judge. None of us were aware, and I was J1 senior most; and would you accept such a situation where the Chief Minister or Prime Minister takes a decision completely alone. Are we ready to live in a country like this?
    • This is the basis of paradox and what ought to be done by full court is done by one individual and one individual thing is done by full courts.
  4. The Delhi High Court asked the Patents Office to update the Manual of Patent Office Practice and Procedure so that the Examiners and Controllers can address the new and complex technologies developing in the fields of artificial intelligence (AI) and machine learning.  (AGFA NV & Anr v The Assistant Controller of Patents and Designs & Anr)
    • Justice Amit Bansal noted that the patent applications in these domains either have a large number of claims or involve a lot of features interlinked to each other.
    • the Court said, As the number of Patent filings in India are rapidly increasing and there is an imminent need to update the Manual of Patent Office Practice and Procedure so that Examiners and Controllers can get better guidance on dealing intricate matters like objections of lack of clarity and succinctness. This would be particularly useful when dealing with complex patents involving Artificial Intelligence systems, machine learning functions, agrochemicals, pharmaceuticals and manufacturing methods.
    • the Court added, This would ensure that Examiners and Controllers can be better equipped to ascertain aspects like clarity and succinctness of inventions. It may also be appropriate to consider giving adequate technical and patent analytics trainings to Examiners and Controllers.
    • the Court ordered, List before the Patent Office on 14th June, 2023 for completion of necessary formalities.
  5. On Saturday the Allahabad High Court ordered the astrology department of the Lucknow University to study a woman’s kundali (horoscope or birth chart) to ascertain whether she is a mangalik, in order to decide the bail plea of a person accused of raping a woman on pretext of marriage.  (Gobind Rai @ Monu v. State Of UP)
    • This was after the accused took the defence that the marriage could not be solemnised because the woman was a mangalik.
    • Mangali or mangalik is a person born under the influence of Mars as per Hindu astrology. Such persons are said to have mangala dosha which is construed to be unfavourable for marriage.
    • single-judge Justice Brij Raj Singh ordered the woman and the applicant to submit their kundalis to the Astrology department of the Lucknow University.
    • the order, t has been argued by learned counsel for the applicant that the prosecutrix is mangali, therefore, marriage could not be solemnized and the same has been refused. On the other hand, Sri Vivek Kumar Singh, learned counsel for the prosecutrix has submitted that the girl is not mangali. Let Head of Department (Astrology Department), Lucknow University may decide the matter whether the girl is mangali or not and the parties will produce the kundali before the Head of Department (Astrology Department), Lucknow University within ten days from today. The Head of Department (Astrology Department), Lucknow University is directed to submit report in a sealed cover within three weeks to this Court.
  6. On Friday the Chief Justice N Kotiswar Singh and Justice Puneet Gupta, judges of the High Court of Jammu & Kashmir and Ladakh, visited and inspected a gaushala in Jammu district’s Nagrota after a public interest litigation (PIL) was filed before the Court highlighting the pathetic condition of the gaushala.
    • Justice Singh asked the officials present, We have the concept of open jail in the country where people can walk freely. Why can’t we have the same system for animals in Gaushalas? Neither such animals are criminals nor they have ability to commit any crime. So, why not the same concept for such voiceless animals?
  7. On Sunday a public interest litigation (PIL) petition has been filed before the Supreme Court seeking the formation of a probe panel headed by a retired apex court judge to probe the recent train accident in Odisha’s Balasore.
    • The accident that occurred on 2nd June had resulted in 288 deaths and injured over 1,000 people. It involved the Shalimar-Chennai Central Coromandel Express and the Bengaluru-Howrah Superfast Express trains.
    • PIL filed by advocate Vishal Tiwari has sought the following directions to be issued to the Central government and Indian Railways –
      • Set up an expert commission headed by a retired Supreme Court judge and consisting technical members to analyse and review the current risk and safety parameters in the railways, find the root cause of the incident, and suggest ‘systematic safety modifications’, within two months.
      • Ensure implementation of Automatic Train Protection (ATP) system known as KAVACH with immediate effect to ensure public safety.
    • Such accidents amount to the violation of life and liberty guaranteed by Article 21.
    • the plea, With unregulated and negligent actions, the Respondent Authorities have time by time shown the country that there needs to be a strict judicial intervention on this matter as this matters the concern of public safety and life which stands at the highest pedestal on the functioning of any state machinery … This type of incidents holds multirole consequences in the form of other train cancellations and diversions of trains bringing in severe inconveniences. The damage of public properties are widespread which are ultimately the loss of taxpayer’s money of this country.
  8. The Rajasthan High Court said State cannot discriminate against men while quashing an October 1996 order of the Rajasthan State Electricity Board(RSEB) appointing only women as lower division clerk (LDC) under a compassionate scheme.  (Ashish Arora vs Rajasthan State Electricity Board)
    • Referring to provisions of Articles 14 and 16, the Court held that the same indicate that in matters of recruitment to employment, the State will not discriminate between men and women and that a citizen will not be ineligible for employment or office under the State on the ground of sex only.
    • the Court held, The exclusion of male candidates for getting compassionate appointment on the post of LDC is based solely on gender discrimination and the same is also in violation of Rajasthan State Electricity Board Ministerial Staff Regulations, 1962.
    • Single-judge Justice Anoop Kumar Dhand noted that Article 14 of the Constitution of India prohibits the State from denying any person equality before the law or equal protection of the laws and Article 15(1) prohibits discrimination on the ground of religion, race, caste, sex or place of birth.
    • the judge observed in his April 26 order, Therefore, no citizen shall be discriminated on the grounds of religion, race, caste, sex or place of birth. Article 16 takes its root from Article 14 and ensures equality of opportunity in the matters of employment under the State. Therefore, the fundamental right to equality means that persons in like situations, under like circumstances, should be treated alike.
    • the Court said, The equality before law guaranteed under Articles 14, 15 and 16 of the Constitution of India is a constitutional admonition against both the legislative and executive organs of the State. Therefore, neither the legislature nor the Rule making Authority can make a law or a Rule, issue any guidelines or circulars or even administrative instructions, which would be in violation of Articles 14 and 15.
    • the bench ruled, The respondents cannot discriminate against the petitioners to get appointment on the post of LDC merely because similar female candidates were less in number in comparison to male candidates. Thus, the order of the RSEB is held to be violative of Articles 14 and 16 and accordingly the same is hereby quashed.
    • the bench observed, the issue in hand does not concern a statute, but a guideline in the form of a policy; a policy in the form of a guideline, it is therefore, on a lower pedestal than that of a statute. If statutes are held to be violative of the tenets of Article 14 by the Constitutional Courts for the reason that it depicts discrimination resulting in gender bias, a guideline in the form of policy would pale into insignificance, if it portrays such discrimination, even to its remotest sense.

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