Today’s Legal Updates

Friday, 3rd November 2023

Legal Awareness: – CONSTITUTION OF INDIA

Part – XV ELECTIONS

Article – 324 Superintendence, direction and control of elections to be vested in an Election Commission.

  1. The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
  2. The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time-to-time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
  3. When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.
  4. Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1).
  5. Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
    • Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment.
    • Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
  6. The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1).

Today’s Legal Updates: 

  1. On Friday Chief Justice of India (CJI) DY Chandrachud expressed concerns over the increasing number of adjournment requests made by lawyers in the Supreme Court and said that the top court cannot be reduced to a ‘tareekh pe tareekh’ court (a court of adjournments).
    • The CJI pointed out that from September to October, a total of 3,688 adjournments were sought by lawyers.
    • The CJI pointed “Matters are mentioned for being expedited but on the other hand adjournment is sought. This cannot become a tareek pe tareek court. This defeats the trust of the citizens and thus this is our moral responsibility. This does not show a good image of our court to the country”.
    • the CJI said, I have been seeing that period from filing to listing is reducing. We could not have achieved this without SCBA and SCAORA.
    • The CJI said, For November 3, we have 178 adjournment slips. For each miscellaneous days since October, 150 adjournment slips were there on each day and from September to October there was 3,688 adjournment slips were circulated. This defeats the very purpose of expediting the case.”
    • The CJI said, From September to November 1, fifty-eight matters are mentioned everyday. Matters are mentioned for being expedited but on the other hand adjournment is sought.
  2. On Friday the Delhi High Court observed that even though the Right to Information Act (RTI Act) stipulates a maximum penalty of ₹250 per day on the Public Information Officer (PIO) for refusing to receive an application or denying information with mala fide intent, it is not mandatory to impose the maximum penalty on the officer.  (Pooja V Shah v Bank of India)
    • the Court observed, What is mandatory is the imposition of penalty and not the quantum of penalty. The RTI Act only specifies the maximum limit of the penalty and not the minimum limit. It is nowhere mentioned that delay of each day will incur a penalty of ₹250/-. The Petitioner is trying to construe that it is mandatory on the part of the Public Information Officers to pay ₹250/- each day regardless of the degree of malice or inaction. Such an interpretation cannot be sustained.
    • The Court made the observations while dealing with a plea filed an RTI applicant Pooja V Shah challenging the orders passed by the Central Information Commission (CIC) imposing costs ranging from ₹5,000 to ₹20,000 on several PIOs of Bank of India.
    • The Court added that the issue has already been settled by the Division Bench of the Delhi High Court in Anand Bhushan v RA Haritash.
  3. On Friday the Kerala High Court directed the State authorities to conduct raids in all religious places and take into possession firecrackers illegally stored in such places.  (Binoj KB & Ors. v State of Kerala & Ors.)
    • Justice Amit Rawal also said no crackers shall be burst in religious places at odd times there is no commandment in any of the holy books to burst crackers to please God.
    • the Court said, I thus direct the Deputy Collector with the assistance of the Commissioner of Police, Cochin, and other districts, to conduct raids in all religious places and take into possession of the crackers illegally stored in all religious places and issue instructions that henceforth onwards no crackers shall be burst in religious places at odd time as prima facie there is no commandment in any of the holy books to burst crackers for pleasing the God.
    • The Court was considering a petition seeking intervention to prevent the bursting of the crackers in all the religious places situated in Kerala.
    • The plea added that even if the licenses are issued, they should not be issued for bursting as it causes noise and air pollution also.
    • the High Court directed the Deputy Collector with the aid of the Commissioner of Police to conduct raids in all religious places and take into possession crackers illegally stored in all religious places.
  4. On Friday the Supreme Court took exception to Indian Army’s defiance to the top court’s orders relating to entitlements of women officers towards promotions and empanelment to Colonel rank.
    • A bench of Chief Justice of India DY Chandrachud with Justices JB Pardiwala and Manoj Misra noted that women officers in the Army were being compelled to repeatedly approach Court in this regard despite earlier orders in their favour.
    • the bench noted, The attitude has been to defy the orders of this court and not mete out their just entitlement. Women officers have been compelled to move this court for realisation of their rights. The manner in which the women officers have been denied empanelment as colonel based on selection process is arbitrary.
  5. On Friday the Supreme Court allowed a father in a custody battle to meet his son at an ashram and a temple in Kerala.
    • A bench of Justices AS Bopanna and PS Narasimha had on October 3 allowed the father to meet his child at a mall, while modifying a family court directive that allowed him to meet his son at Court premises.
    • On October 31, the Court modified its October 3 order and allowed the man to take his son to the Amritapuri Ashram of Sri Mata Amritanandamayi Devi and the Padanayarkulangara Temple in Kerala’s Kollam.
    • the bench had observed, We find that the repeated visitation rights in the Court premises, would also not be in the interest of the child as the environment during which the visitation rights are exercised, would also matter.
    • The Court today eventually disposed of the appeal on October 31 after modifying its October 3 order.
  6. On Friday the Kerala High Court has clarified that family courts have the jurisdiction to hear original petitions seeking relief under the Protection of Women from Domestic Violence Act, 2005.
    • A division bench consisting of Justices Amit Rawal and CS Sudha held the same while dismissing a petition filed by a man (petitioner) who claimed that only judicial magistrates can hear original petitions under the Domestic Violence Act.
    • the Court held, Section 26 of the (Domestic Violence) Act do not denude family court to deal with a petition in a claim under Sections 18, 19, 20, 21 and 22 of the Act … The whole purpose of carving out the Family Court Act is to club various provisions by confining the jurisdiction of one court to prevent multifariousness. This is precisely what has been sought in this case.
    • the Court said, The order of the trial court rejecting the application based on the appreciation of the provision is perfectly legal and justified and does not suffer from any illegality or perversity warranting any interference of this Court.
    • the High Court added, Similarly, the argument that the relief under Sections 18, 19, 20, 21, and 22 (of the Domestic Violence Act) cannot be granted by the trial court (family court) is also untenable much less opaque, capricious, and hereby rejected.
  7. On Friday the Bombay High Court refused to provide information sought through an application under the Right to Information Act (RTI Act) regarding the structural audits conducted on the High Court building in Mumbai.
    • The Public Information Officer (PIO) of the High Court reasoned that the disclosure of this information was not in the larger public interest and could endanger the life or physical safety of judges and officials of the Court.
    • reply stated, The information sought is also exempted from disclosure as the disclosure of the same would endanger the life or physical safety of judges and officials of the High Court.
    • the PIO said, The information sought by you has no relationship with the larger public activity or interest. Also, the preservation of confidentiality of such sensitive information is necessary. There in view of the object of the RTI Act, the information sought cannot be provided to you.
    • In a reply dated November 1, 2023, the PIO of the High Court, PA Patki, refused to provide these details stating that the same was exempted from disclosure under Section 8(1)(a) of the RTI Act for security purposes.
  8. On Friday the Supreme Court asked the Gujarat Police not to take any coercive steps against two journalists of the Organised Crime and Corruption Reporting Project (OCCRP) who were summoned in connection with an article alleging stock manipulation by the Adani group.
    • A bench of Justices BR Gavai and Prashant Kumar Mishra also sought the response of the Gujarat government in the matter.
    • the Court was told, Nair and Anand (petitioners) then moved the Court challenging the summons. It was asserted that all due diligence was exercised before the article in question was published. Similar reports have also been published in international publications such as the Financial Times and the Guardian.
    • The petitioners also questioned the credibility of the investor who had complained about the article to the Gujarat police. It was noted that as per publicly available information, the said investor had earlier been barred from participating in the stock market by the Securities and Exchange Board of India (SEBI) in 2009 for three years.
    • The petitioners also contended that the notices of summons amounted to conducting an illegal fishing and roving inquiry, in an attempt to harass the journalists and create a chilling effect on the freedom of speech.
  9. On Friday the Supreme Court sought the response of the Central Bureau of Investigation (CBI) and Andhra Pradesh Chief Minister (CM) YS Jagan Mohan Reddy in a plea seeking the transfer of the trial in the disproportionate assets case against him outside Hyderabad, preferably to Delhi. (Raghu Ramkrishna Raju vs Central Bureau of Investigation and ors)
    • A bench of Justices Sanjiv Khanna and SVN Bhatti also asked the CBI to explain why the trial was getting delayed.
    • The Court was dealing with a plea filed by YSR Congress Member of Parliament (MP) Raghu Ramkrishna Raju. Notably, the Andhra Pradesh Chief Minister is the president of the party.
    • Raju underscored that even the CBI has not challenged a High Court ruling that exempted Chief Minister Reddy from appearing personally before the court. The trial has been dragging along for over 10 years and even charges have not been framed, it was pointed out further.
  10. On Friday Aam Aadmi Party (AAP) MP Raghav Chadha told the Supreme Court that he would tender an unconditional apology to Rajya Sabha Chairperson Jagdeep Dhankhar for not taking the consent of five Rajya Sabha members before proposing their names for a Select Committee.  (Raghav Chadha v. Rajya Sabha Secretariat and Ors)
    • Chadha who was suspended from the house for the same, told the apex court that as the youngest member of the House he had no problem in tendering the apology.
    • A bench of Chief Justice of India (CJI) DY Chandrachud and Justices JB Pardiwala and Manoj Misra said in the order, It has been submitted that Raghav Chadha is the youngest member of the august house. Bearing in mind that he had no intention to attack the dignity of the house, it is assured that Raghav Chadha shall meet the chairperson and tender an unconditional apology which shall be considered sympathetically in the background of facts and circumstances of the house.
    • Chadha was suspended from the Upper House of Parliament on August 11 during the pendency of the Privileges Committee proceedings against him for allegedly not taking the consent of five Rajya Sabha members before proposing their names for a Select Committee.
    • the Court said, I had said last time that if Mr Chadha is willing to tender an apology, the chairman who is a distinguished senior can take a view as how long can we keep him in suspension. We are also aware of the dignity of the house and that along with being the Vice President he (Jagdeep Dhankhar) is the Chairperson of the House and if he (Chadha) apologises to him then the Chairman can take a view accordingly.
    • advocate Shadan Farasat said, He is the youngest member of the house and there is no problem in tendering the apology.
  11. On Friday the Madhya Pradesh High Court observed that it was common for youngsters to organize get-togethers and parties and that no restriction could be imposed on the same. (Rajinder Singh Rajput & Ors vs The State of MP and Anr)
    • the Court remarked, Nowadays it is very common that youngsters organize get together and parties in a place where they could assemble and no restriction can be imposed upon them. It is indisputable that the party was going on in a flat owned by one of the petitioners, and the mere consumption of liquor cannot be deemed to be an offence.
    • The Court concluded that there was no concrete material on record to indicate that the accused had committed any offence.
  12. On Friday a petition has been filed before the Kerala High Court seeking directions to the Central government to frame regulations for birthing centres that follow the midwifery model for births.
    • The plea was filed after a newborn child died 2 days after his birth at one such institution, Cochin Birthvillage. The parents alleged that it was the lack of facilities and doctors at the institution that led to the death of the child.
    • the Court recorded in its order, Prima facie the allegations of the petitioners are serious enough to merit immediate attention of competent authorities. Raghul Sudheesh, counsel for the petitioners, informed this court that the Cochin Birthvillage is still operating and that many mothers are still being lured into their net by fanciful public relations and misleading advertisements.
    • Justice Ramachandran remarked, I did not know that there was still a midwifery concept in Kerala. People are living by WhatsApp university. How tragic is this? Is this institution still running? I want to know. To deal with such matters in 2023 is baffling for me. People are going just anywhere but they won’t go to a regular hospital. There are tested methods for all this but people are opting for untested, ex-facie fraudulent practices. I am not talking about the petitioners or this particular case. I am talking about the attitude of the citizenry in general. All of us are responsible.
    • The petition was moved by a married couple after their newborn died two days after he was delivered at the Cochin Birthvillage which claims to follow the midwifery model and conduct “natural” and “holistic” child births and post-partum care.
    • Apart from seeking a proper post-mortem of their child and a proper investigation by the police, the petitioners pointed out that on the date their child was born, the Nursing Council Act, 1947 was in place and that the same was not comprehensive enough to regulate midwifery.
  13. On Friday the Delhi High Court pulled up Delhi’s forest department for passing “non-speaking” and “stereotypical” orders allowing felling of trees in the national capital.
    • Justice Jasmeet Singh orally remarked that it is the casual approach of the department and its officials that has led to toxic levels or air pollution in the city with the Air Quality Index (AQI) reaching alarming levels.
    • Justice Jasmeet Singh said, You want people to live in gas chambers? You are responsible for the mess that the citizens of Delhi are in today due to pollution. There are machines that record air quality, the maximum that the machines can record is 999. Today, we are touching that… It is the sensitivity [among officials] that is lacking.
    • the Bench remarked, This is blatant violation of our orders, this is dereliction of duty, you are trying shortcuts, cutting corners. This is total disregard of the court’s orders.
    • Development must co-exist with nature & heritage. We are not coming in the way of development, if there is a traffic jam, you will have to widen the roads. But, it can’t be that you will cut 50 trees around it. If there is no other way, then only you should go ahead no. Trees can’t be removed. You have to find a way. How can colonies be treeless?
  14. On Friday the Kerala High Court has ordered the State authorities to ensure that the maximum fine is imposed on those found installing unauthorised boards or such structures in public spaces and streets.  (St. Stephen’s Malankara Catholic Church Kattanam Village v State of Kerala)
    • Justice Devan Ramachandran added that even though violators do not deserve any leniency, seven days’ time may be granted so that such illegally installed boards may be removed to avoid a penalty of ₹5,000 (as prescribed under the Kerala Municipality Rules) per board.
    • the Court ordered, I am certain that the Committees now constituted by this Court must start imposing maximum penalty under the ‘Rules’ against every board …those who have created/erected it and every other individual involved, will have to be found out and identified, leading to FIRs being registered against them.
    • the Court said, Visual Pollution’ … is something to be taken grave note of by the civilized world. It is the right of a citizen to have pleasing environment and any action by perpetrators to defy this for selfish and vested reasons, certainly is an offence which must attract sufficient penalties.
    • the Court’s order said, When our State is going through stated financial constraints – which is evident from various other cases that come to the notice of this Court – one fails to understand how this source of revenue can be given up, particularly when thousands of boards have been removed on regular basis.
    • The High Court proceeded to underscore that it was time to impose the maximum penalties for such on anyone found to have erected or created illegal boards, including by registering a First Information Report (FIR) against them.
  15. On Friday the Delhi High Court asked the Archaeological Survey of India (ASI) to consider the representation submitted by an organization named Hindu Sena seeking directions to publish the “correct history” of the Taj Mahal.
    • A Bench of Chief Justice Satish Chandra Sharma and Justice Tushar Rao Gedela disposed of a Public Interest Litigation (PIL) which claimed that the Taj Mahal was not built by Mughal Emperor Shah Jahan, but by Raja Man Singh.
    • The petitioner claimed that he has conducted ‘deep study and research’ about the Taj Mahal and that it is important to rectify facts of history and impart correct information to the people about the Taj Mahal.
    • He referred to a book called ‘Taj Museum,’ authored by ZA Desai, as per which a “lofty and a beautiful” site was selected for the burial of Mumtaz Mahal. This, he claims, was a mansion (manzil) of Raja Man Singh which was in the possession of the latter’s grandson Raja Jai Singh at the time of burial.
    • the plea argued, Further, the book titled Taj Museum mentions that the dead body of Mumtaz Mahal was interred under a temporary domed structure within the land premises of Raja Jai Singh. It is pertinent to mention that there is no account which states that the mansion of Raja Man Singh demolished to construct Taj Mahal.
  16. On Friday the Allahabad High Court observed that while lawyers are free to choose their clients, their initial years of practice would usually teach them that they should not ideally appear for blood relatives. (In Re Subhash Kumar Advocate)
    • Justices Saumitra Dayal Singh and Rajendra Kumar-IV were dealing with a matter wherein a lawyer had appeared for his father in a matrimonial dispute against his mother. Surprised by this aspect of the matter.
    • the Court observed, It cannot be for Courts to advise lawyers to choose their clients. It has always been left to the wisdom of the learned members of the bar. The basic learning that any member of the bar imbibes at the initial years of practice tell him to not appear for his blood relatives. However this wisdom and nuance has not touched Subham Kumar (the lawyer) by a mile.
    • the Court said, It indeed would be sad if statutory law were to provide for restrains on whose brief to take and whose not. Yet, the father – son duo before us would appear to take no less. That’s the tragic part of this case.
    • the Court was dealing with a contempt case concerning the lawyer and his father (his client). The lawyer and his father were alleged to have disrupted proceedings before a family court. After the family court judge sent a written complaint over the incident to the High Court, contempt proceedings were initiated against the lawyer and his father.
    • The High Court observed that court proceedings are formal proceedings which must be conducted in a dignified manner and without disruptions. Any grievance has to be addressed only by filing an appropriate application, appeal or a mention.
    • the Court observed, What more catastrophic or precipitative ingredient could have existed than a son (lawyer) appearing for his father (litigant) that too in a matrimonial case with his (lawyer’s) mother!
    • the Court observed, On a query made, if the contemnors were seeking forgiveness. Both, first stated ‘Yes’. However, when questioned for what, the answer was ridiculous to say the least as they both stated ‘जो हमने करा नहीं (for what we did not do).
    • the Court said, We do not have time to take our gaze away from the cause of justice and to devote the same to punish the contemnors as per the rules of law. Our time would be better utilized and is needed to address the cry for justice by genuine litigants. It does not merit to be wasted on the jesters and/or deviant lawyer and litigant that these contemnors are. They are far too less deserving of that.
  17. On Friday the District Consumer Disputes Redressal Commission-I in Chandigarh ordered MakeMyTrip, OYO Rooms and a hotel in Goa to pay a sum of ₹42,000 to a Chandigarh resident whose hotel booking was canceled despite advance payment.
    • The bench headed by the Commission’s President Pawanjit Singh and comprising Members Surjeet Kaur and Suresh Kumar Sardana ordered the errant parties to pay the complainant ₹35,000 as compensation, apart from ₹7,000 as litigation costs.
    • The complainant, Vineet Marwaha had booked The Essence Retreat in October 2021 through GoIbibo, which is a subsidiary of MakeMyTrip. The hotel booking was for five dates in December 2021 for a vacation with his wife and daughter.
    • MakeMyTrip in its response to the Commission said that it was merely an intermediary and a facilitator between the complainant, the hotel and the hospitality service provider Oyo.
    • Court added, But in our opinion the complainant hired the services of OPs in advance just with this reason only that at the peak season it will be impossible for him to meet the budget.
    • Finding that MakeMyTrip and other opposite parties failed to justify the cancellation of the complainant’s booking and the subsequent availability of the same room at exorbitant rates, the Commission allowed the complaint with directions for compensation.
  18. On Friday Chief Justice of India (CJI) DY Chandrachud expressed concerns over the increasing number of adjournment requests made by lawyers in the Supreme Court and said that the top court cannot be reduced to a ‘tareekh pe tareekh’ court (a court of adjournments).
    • The CJI pointed out that from September to October, a total of 3,688 adjournments were sought by lawyers and this, he said, defeats the very purpose of expediting cases.
    • Matters are mentioned for being expedited but on the other hand adjournment is sought. This cannot become a tareek pe tareek court. This defeats the trust of the citizens and thus this is our moral responsibility. This does not show a good image of our court to the country.
    • the CJI said, I have been seeing that period from filing to listing is reducing. We could not have achieved this without SCBA and SCAORA.
    • he said, For November 3, we have 178 adjournment slips. For each miscellaneous days since October, 150 adjournment slips were there on each day and from September to October there was 3,688 adjournment slips were circulated. This defeats the very purpose of expediting the case.
    •  he said, From September to November 1, fifty-eight matters are mentioned everyday. Matters are mentioned for being expedited but on the other hand adjournment is sought.
  19. On Wednesday A review petition was filed before the Supreme Court challenging the correctness of the apex court’s verdict that refused to recognize the right of same-sex couples to enter into marriages or have civil unions.
    • A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan KaulS Ravindra BhatHima Kohli and PS Narasimha had on October 17 ruled against recognising same-sex marriages.
    • The Court had also held that the law does not recognize the rights of same-sex couples to adopt children. The majority opinion was delivered by Justices Bhat, Kohli, and Narasimha, with Justice Narasimha delivering a separate concurring opinion. CJI Chandrachud and Justice Kaul had delivered separate dissenting judgments.
    • the plea said, The majority judgment effectively compels young queer Indians to remain in the closet and lead dishonest lives if they wish the joys of a real family.
    • Court declined to interpret Special Marriage Act (SMA) in a manner consistent with fundamental rights
      • The Court declined to interpret the Special Marriage Act (SMA) in a manner consistent with fundamental rights. The petitioner has argued that CJI DY Chandrachud, in his dissenting opinion, rightly observed that the majority judgment contradicted itself when it held that the SMA was not discriminatory and then found that the State indirectly discriminated against the queer community.
    • Court failed to recognise the right to a civil union for same-sex couples as an option instead of allowing them to marry
      • The plea argues that these directions only give effect to fundamental rights and points out that while the majority opinion recognized that queer persons have a right to a relationship under Article 21, it prescribed no obligation on the State to recognize such relationships and the rights that would flow from them.
    • Court acknowledged discrimination faced by the queer community but failed to remedy it
      • Despite that, the Court abdicated its Constitutional duty to pass appropriate directions to remedy the discrimination, leaving such remedy to the legislature and the government, effectively denying relief to the petitioners due to the marginalized nature of their community and the stigma they endure.
      • To leave such remedy to the legislature and the government, is to effectively deny any relief to the petitioners, given the marginalised nature of their community and the stigmas from which they suffer.
    • Court erred in declaring there is no fundamental right to marry
      • The petition emphasizes that marriage is, at its core, an enforceable social contract, available to anyone capable of consenting.
        • Marriage, at its core, is an enforceable social contract. The right is available to anyone capable of consenting. Adults of any faith or no faith-may engage in it. No one group of people may define for another what “marriage” means. No contract, nor forceful State action like imprisonment, may curtail an adult’s fundamental right to marry.
    • Court failed to grant adoption rights to non-heterosexual couples
      • The majority opinion refused to declare regulation 5(3) of Central Adoption Resource Authority (CARA) Regulations as void.
      • The regulation states that a couple cannot adopt a child unless they have been in a stable marital relationship for two years except in cases of relative or step-parent adoption.

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