Today’s Legal Updates

Wednesday, 4th May 2022

Legal Awareness :- CONSTITUTION OF INDIA

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

Article – 305    Saving of existing laws and laws providing for State monopolies.

Nothing in articles 301 and 303 shall affect the provisions of any existing law except in so far as the President may by order otherwise direct; and nothing in article 301 shall affect the operation of any law made before the commencement of the Constitution (Fourth Amendment) Act, 1955, in so far as it relates to, or prevent Parliament or the Legislature of a State from making any law relating to, any such matter as is referred to in sub-clause (ii) of clause (6) of article 19.

Today’s Legal Updates :-

  1. On Wednesday a review petition has been filed before the Supreme Court against an 19th April 2021 judgment of the Supreme court by which it had commuted the death sentence of a man convicted for killing a 4-year-old girl after raping her.  (Mohd. Firoz v. State of Madhya Pradesh)
    • The review petition has been filed by the mother of the deceased girl challenging the reduction of sentence of convict Mohd. Firoz to life imprisonment from death.
    • The only difference between the saint and the sinner is that every saint has a past and every sinner has a future. One of the basic principles of restorative justice as developed by this Court over the years, also is to give an opportunity to the offender to repair the damage caused, and to become a socially useful individual, when he is released from the jail.
  2. On Wednesday A group of Congress affiliated lawyers heckled Senior Advocate and Congress leader P Chidambaram outside the Calcutta High Court after he appeared before the Court to oppose a public interest litigation petition filed by Congress West Bengal State President, Adhir Ranjan Chowdhury.
    • It is just because of leadership like you that this party is suffering in West Bengal. And you are here to save the TMC looters.They have looted public money and you are saving TMC….you have become a dalal of TMC..dalali ki bhi had hoti hai…you are a dalal of Mamata Banerjee.
  3. On Wednesday a plea has been filed before the Supreme Court against statements made by stand up comic Kunal Kamra that the apex court is a “Brahmin-Baniya’ affair.  (Shrirang Katneshwarkar v. Kunal Kamra)
  4. On Wednesday the Madras High Court held that juvenile offenders should not be dealt with in a purely punitive manner but rather, must be given individual reformative treatment as contemplated under the Juvenile Justice (Care and Protection of Children) Act.
    • the Court said, Juveniles involved in crimes are not criminals; in fact, they are victims of society in some cases. Juvenile delinquency can be stopped at an early stage, provided special care is taken both at home and in school. Parents and teachers play a major role in fostering the mind of a child. Instead of labeling them as criminals or delinquents, importance is to be given on understanding the needs of children and give them a scope for modification. The problem of child crime like many other social problems is linked up with the imperfections and maladjustment of our society.
    • the court observed, As meant by the proverb, “idle mind is the devil’s playground”, it is painful to note that during the pandemic frozen period, the children were left with the option of either “idiot box” or “smart phone” making them less proximate to their parents and care takers and thereby susceptible to infection of their minds with much more impact than the pandemic illness.
    • the Court said, It is really heartbreaking to see that the students go to the extent of severely misbehaving with teachers who are to be revered….Such events rings alarm that the State and the society should wake up to the situation. The State should involve the Education Department and the Social Welfare Department in an effective manner so that things do not go beyond our hands.
    • Therefore, punishing the minor boy who enters into a relationship with a minor girl who were in the grips of their hormones and biological changes which is otherwise normative development in the children, is against the principles of the best interest of the child.
    • In the case on hand, the irresponsible behaviour on the part of the petitioner/minor and the victim girl, who hail from the lower strata of the society, is nothing but, a mirror image of the lacuna of the society in taking sufficient care for others….in all justice has been denied to the petitioner/child in conflict in law.
    • Challenging the detention order at the High Court, the following arguments were made on behalf of the petitioner:
      • JJB Order is non-speaking, cryptic, in contravention to the procedure laid down by the Supreme Court and various High Courts.
      • The JJ Act is a gender neutral act but JJ Board did not assess the situation considering the fact that the girl is older than the petitioner.
      • There was a long delay between the occurrence of the alleged incident and lodging of the complaint which is unexplained by the prosecution.
      • Statement of the girl under Section 164 Code of Criminal Procedure prove that the relationship was consensual but the JJ Board took the peitioner’s statement about the incident as an admission of sexual assault.
      • Age of the girl and paternity of the child was not proved conclusively.
      • Witnesses were not examined to prove the prosecution case.
  5. On Wednesday the Supreme Court held that notices issued to assessees under Section 148 of the Income Tax Act of 1961 shall be deemed to be issued under Section 148A of the newly-amended Act as was substituted by the 2021 Finance Act. (Union of India v. Ashish Agarwal and ors)
    • the Bench held, There appears to be genuine non-application of the amendments as the officers of the Revenue may have been under a bonafide belief that the amendments may not yet have been enforced … [Present interpretation] will strike a balance between the rights of the Revenue as well as the respective assesses as because of a bonafide belief of the officers of the Revenue in issuing approximately 90,000 such notices, the Revenue may not suffer as ultimately it is the public exchequer which would suffer.
    • The same ought not to have been issued under the unamended Act and ought to have been issued under the substituted provisions of Sections 147 to 151 of the IT Act as per the Finance Act, 2021.
    • The Supreme court held that Section 148A of the Act is a new provision and “a game changer with an aim to achieve the ultimate object of simplifying the tax administration, ease compliance and reduce litigation“.
    • The new provisions substituted by the Finance Act, 2021 being remedial and benevolent in nature and substituted with a specific aim and object to protect the rights and interest of the assessee as well as and the same being in public interest.
    • The High Courts ought to have passed an order construing the notices issued under unamended Act/unamended provision of the IT Act as those deemed to have been issued under Section 148A of the IT Act as per the new provision Section 148A and the Revenue ought to have been permitted to proceed further with the reassessment proceedings as per the substituted provisions of Sections 147 to 151 of the IT Act as per the Finance Act, 2021, subject to compliance of all the procedural requirements and the defences, which may be available to the assessee under the substituted provisions of Sections 147 to 151 of the IT Act and which may be available under the Finance Act, 2021 and in law.
    • The Supreme Court, therefore, partly allowed the appeals and modified the order of the Allahabad High Court in the following terms which would be applicable pan-India to all the pending and disposed of proceedings before High Courts:
      • The Section 148 notices issued to the respective assessees shall be deemed to have been issued under Section 148A of the IT Act as substituted by the Finance Act, 2021 and treated to be show cause notices in terms of Section 148A(b). Further, the assessing officers are given 30 days to provide the assessees with all the information and material relied in order to enable the assessees to reply to the notice within two weeks.
      • The requirement of conducting an enquiry with the prior approval of the authority under Section 148A of the Act is dispensed with as a one time measure vis-a-vis those notices issued under Section 148 of the unamended act, including those notices which were quashed by the High Courts.
      • The defences available to the assessees under Section 149 and rights of the officers/assessees under the Finance Act, 2021 shall be kept open and remain available.
      • The order shall substitute/modify respective judgments and orders of the High Courts which quashed the notices issued by the revenue under Section 148 irrespective of the fact whether the same was challenged before the Supreme Court or not.
  6. On Wednesday the Supreme Court orally observed that nobody was above the law and that a Governor of a state cannot stall the working of the Constitution. (AG Perarivalan v. State of Tamil Nadu)
    • the Court observed, We cannot shut our eyes when there is a violation of the Constitution. It is our Bible. There is nobody above law. There are certain powers conferred to dignitaries, but the working of the Constitution cannot come to a stall.
    • the Court demanded, The Governor acts on the behalf of the State. Why is the Union defending the Governor’s action here in court? How is it fine? Obviously, Governor can take a decision contrary to the Cabinet and send the matter to the State. It is for the State to defend the Governor, not Union.
    • Justice Rao said, It is a matter to be decided by this Court. The decision of the Governor was not even needed. Mr. (Additional Solicitor General) Nataraj, he is bound by the decision of the Council of Ministers. We will have to look into this.
    • ASG KM Nataraj replied, Whether the reference to the President is right or not, that call must be taken by the President first, milords.
    • Justice Gavai said, The Constitution has to be interpreted by this Court or by the Hon’ble President, Mr Nataraj?
    • Justice Rao said, The question here is this: whether the Governor can take a decision like this and refer the matter to the President and do something like this? This is constitutional law. The person’s conduct is good in jail, this concerns Article 14 as you are discriminating him against others…We will pass the order to release him from jail as you are not ready to argue the case on merits. The question is about the power of the Governor and not about the President’s decision on it.
    • Sankarnarayanan submitted, Yes exactly, that’s why we never call the Governor to courts because the State government’s word is final for the Governor and that is why they [State governments] are called here to courts. The Governor can’t seek such advice from people because the decision of the State government binds him. Here, first the Governor was waiting for the victim’s petition, and the same was dismissed by the Court. Then they say CBI, but the CBI denies any representation by the Governor. This is not how things are to be done.
    • Justice Nageswara Rao said, We will place the matter for hearing. The decision of the President will not have any bearing on us for sure…No one is above the law.
  7. On Wednesday the Madurai Bench of the Madras High Court declared “Mother Nature” as a “living being” with the status of a legal person, with all corresponding rights, duties and liabilities of a living person and urged to preserve and conserve them. (A Periyakaruppan v The Principal Secretary)
    • the single-judge stated, They are also accorded the rights akin to fundamental rights / legal rights / constitutional rights for their survival, safety, sustenance and resurgence in order to maintain its status and also to promote their health and well-being.
    • On hearing the rival contentions this Court is of the considered opinion since the co-delinquent’s disciplinary proceedings were quashed, the petitioner is entitled to the same benefit as held in various cases.
    • the Court said, Indiscriminate destruction or change is leading to several complications in ecosystem, ultimately is endangering the very existence of the animals, flora and fauna, forests, rivers, lakes, water bodies, mountains, glaciers, air and of course human. Strangely the destruction is carried on by few humans. Any such act ought to be checked at all levels.
    • it was observed, The phrases like ‘sustainable development’, ‘the polluter pays’, ‘the precautionary principle’ shall not be allowed anymore.
    • the judgment made it clear, This punishment is imposed for the act done against mother nature.
  8. On Wednesday the Bombay High Court asked the Maharashtra government to explain why voice and video-call facilities had been withdrawn from prisons across the State.  (Peoples Union for Civil Liberties & Anr v. State of Maharashtra)
    • The plea filed by NGO Peoples Union for Civil Liberties (PUCL) stated that when prison mulaqats had been stopped in 2020 due to the onset of the COVID-19 pandemic, prison authorities provided telephone and video-conference facilities to prisoners to speak with their respective lawyers and relatives. However, this facility was abruptly stopped in 2021, Advocate Rebecca Gonsalves, appearing for PUCL, claimed.
  9. On Wednesday in a major reshuffle of top bureaucrats, SKG Rahate has been appointed as Secretary of the Department of Justice, Ministry of Law & Justice.
  10. On Wednesday the Madras High Court granted bail to a suspected subscriber of Communist Party of India (Maoist) philosophy on the condition that he files a sworn affidavit stating that he owed allegiance to the Constitution of India and did not believe in Maoist ideology. (Suresh Rajan v The State)
    • The Bench thus agreed to grant bail on the filing of an affidavit stating the following:
      •  he owes faith and allegiance to the Constitution of India and that he does not believe in the Maoist ideology or the ideology of CPI (M).
      • he does not believe in violence as an ideology.
      • he would do nothing to subvert the Constitution of India.
    • The change of regime that happened in 1947 is a sham because it has not got rid of feudalism, imperialism and exploitation of the poor and therefore, August 15th is a farce independence. In order to gain real independence, let us mobilise in the path of war shown by Naxalbari.
    •  the Court recorded, it exhorts its members to take to violence for achieving its political agenda. In other words, they believe in the bullet and not in the ballot.
  11. Justice AM Khanwilkar of the Supreme Court stated on Monday that being a rationalist was a part of being a Hindu.
  12. On Wednesday the Delhi High Court issued fresh notices to filmmaker Vivek Agnihotri, scientist Anand Ranganathan, and news outlet Swarajya in a suo motu criminal contempt petition initiated over their comments alleging bias on the part of its former judge, Justice S Muralidhar.
  13. On Wednesday At least 60 students of the Rajiv Gandhi National University of Law (RGNUL) Patiala have tested positive for COVID-19 on campus in the last two days.
    • a representation made by students of the University highlighting concerns regarding the outbreak, the RGNUL COVID Committee held a meeting where the following decisions, among others, were made as per the advisory issued by medical experts:
      • The end-term exams to be postponed – revised schedule will be rolled out in due course.
      • Lectures for the remaining syllabi will be conduced online.
      • Students who haven’t been tested positive to vacate the hostel and RGNUL Campus as per the advisory issued by local administration before May 10.
    • The only step that was taken by the administration is that they arranged for RT-PCR tests for students on campus on 3rd and 4th of May. Until Monday, students were going out to private labs to get tested. However, the tests being conducted by the University-arranged medium is only for mouth swabs and not nasal swabs, which is against the MCI guidelines.
    • the student said, The infrastructure is inadequate on campus as students tested positive are made to isolate themselves in the same hostel rooms, which has just enough space for 2 beds and a washroom.
    • The University is obligated to declare the total count of COVID positive patients including those who have been tested positive from government-accredited private labs. Additionally, the particulars of COVID-19 positive patients, such as their names and isolation rooms, should be declared to enable contact tracing and isolation protocols as mandated by government guidelines. Therefore, we humbly request the University Administration to disclose accurate COVID-19 numbers.
    • In a residential campus like ours, the implication of COVID outbreak is far more overreaching, and the University officials must recognize the same. We share common spaces such as washrooms, mess, recreational areas and the like. In this regard, the lackadaisical attitude of the University officials, cleaning staff and mess workers exposes the inhabitants of the university to a greater risk of contracting COVID-19.
  14. The Central government has sought another week’s time to file a reply to the petitions challenging the constitutional validity of Section 124A IPC, which deals with Sedition.  (SG Vombatkere v. Union of India and ors)
  15. On Wednesday the Kerala High Court initiated a suo motu Public Interest Litigation (PIL) on the issue of food safety after reports surfaced about the death of a 16 year-old girl and the hospitalisation of at least 57 others, possibly due to consumption of shawarma from a particular eatery in Kasargod district.
  16. On Wednesday the Delhi High Court opined that unwarranted and needless hypersensitivity is not expected of judicial officers, who are otherwise expected at all times to maintain composure and poise. (Suchit Gupta v. Gaurav Saini & Anr)
  17. Last Week the Delhi High Court directed historian Audrey Truschke to delete five more tweets that had allegedly defamatory content against historian Vikram Sampath.  (Dr Vikram Sampath v Audrey Truschke and Ors)
  18. On Wednesday the Bombay High Court quashed a First Information Reports (FIR) registered against Indiabulls Housing Finance Limited (IHFL) based on a complaint of a shareholder who alleged that the company was siphoning off funds.  (Indiabulls Housing Finance Ltd & Ors v. The State of Maharashtra)
  19. On Wednesday the Bombay High Court granted anticipatory bail to Bharatiya Janata Party (BJP) Member of Legislative Assembly (MLA) Ganesh Naik in a case where a woman accused him of rape and criminal intimidation.  (Ganesh Naik v. State of Maharashtra & Anr)
  20. On Wednesday the Supreme Court modified the marking process for selection and designation of Senior Advocates by the higher judiciary.
  21. On Monday the Punjab & Haryana High Court stayed the arrest of Kumar Vishwas in relation to the allegations of separatism he made against Delhi Chief Minister Arvind Kejriwal. (Kumar Vishwas v. State of Punjab)
  22. On Wednesday the High Court of Jammu & Kashmir and Ladakh observed while granting bail to juveniles in conflict with the law for their alleged involvement in a murder case, that judges should not proclaim they are playing the role of law-makers merely for the exhibition of judicial valour.  (Zubair Ahmad Teli & Anr. v Union Territory of J&K & Anr.)
  23. On Wednesday the Delhi High Court held while dissolving a marriage, that a husband and wife are two pillars of the family and neither can be expected to run a household single-handedly.  (Sunil Sharma v. Preeti Sharma)
    • the Bench observed, Husband and wife are two pillars of the family. Together they can deal with any situation, balancing the family in all circumstances. If one pillar gets weak or breaks, the whole house crashes down. The pillars can withstand all the abuses together, the moment one pillar gets weak or deteriorates, it becomes difficult to hold the house together. When one pillar gives up, and puts all the burden on the other pillar, then it cannot be expected that one pillar will single handedly hold the house together.
    • The husband had put the entire burden on the wife to manage the house, her job, and to look after the children. He did not take any responsibility and, on the other hand, continuously abused her and insulted her family members. He even disrespected her father, and doubted her character. He demanded money to give divorce to her and failed to discharge his duties as a husband – and especially as a father. Even after directions of this Court and the Family Court, he falsified about his earnings and failed to pay the maintenance for his daughters. Prima facie, the allegation of domestic violence had been proved by the wife.
  24. On Tuesday A Mumbai Sessions Court allowed the bail application filed by Member of Parliament Navneet Rana, and her husband and Member of Legislative Assembly Ravi Rana who are in judicial custody in a sedition case registered against them in relation to the Hanuman Chalisa row.
  25. On Wednesday the Bombay High Court rejected the plea filed by three accused Varavara Rao, Arun Ferreira and Vernon Gonsalves in the Bhima Koregaon case seeking review of the High Court’s December 2021 judgment refusing them default bail.  (P Varavara Rao & Ors. v. State of Maharashtra & Anr.)
  26. Last Week the Supreme Court refused to grant bail to a Gujarat-based man booked under Unlawful Activities (Prevention) Act (UAPA) and Narcotic Drugs and Psychotropic Substances Act (NDPS Act) after he allegedly attempted to smuggle narcotic substances from Pakistan.  (Ramjhan Palani vs National Investigation Agency)
    • The petitioner would be entitled to justify his presence in the fishing boat, at the scene of crime which is sought to be described as a sheer coincidence during the trial. The explanation offered by the petitioner of having responded to the call ‘Mohammed-Mohammed-Ramzan-Ramzan’, would also be available to him at that stage. But at the threshold, this appears to be a case where he has been fishing in troubled waters and as per the NIA, has got caught in his own net.
    • The petitioner has been chargesheeted for a serious offence where the minimum punishment prescribed is of ten years. We are, therefore, not inclined to exercise our discretion in favour of the petitioner by interfering with the impugned order, at present.
  27. On Wednesday Bank of India has approached the National Company Law Tribunal (NCLT) Mumbai against Kishore Biyani promoted Future Retail Limited for initiation of Corporate Insolvency Resolution Process (CIRP).
  28. The Supreme Court held that even if a person has been sentenced to life imprisonment for the rest of his natural life without the right to seek remission, the right to seek furlough based on good conduct will not be foreclosed. (Atbir v State of NCT of Delhi)
  29. On Monday the Supreme Court observed that recovery of excess payments made to the employee on account of wrong interpretation of service rules is wholly unjustified.  (Thomas Daniel v. State of Kerala and Others)
  30. On Monday the Bombay High Court directed the Maharashtra government to expeditiously decide a plea by a minor girl seeking approval to transplant part of her liver to her father who is in critical condition.  (Riya Sagar Biyani v. State of Maharashtra & Anr.)
  31. Former Goa Chief Minister Pratapsingh Rane has stated in his affidavit filed before the Bombay High Court that his meeting with Bharatiya Janata Party (BJP) leader of opposition in Maharashtra Devendra Fadnavis was the latter’s courtesy call.  (Aires Rodrigues v. The State of Goa & Ors)
  32. On Friday the Allahabad High Court directed the Senior Superintendent of Police (SSP) at Varanasi to inquire into the alleged assault by police personnel inflicted on a woman who married against her family’s wishes. (Kavita Gupta v. State of Uttar Pradesh)
  33. The Allahabad High Court dismissed a plea filed by the husband and family members of a woman who had died by suicide shortly after lodging a complaint claiming cruelty on their part. (Sushil Kumar v. State of UP)
  34. A woman journalist has moved the Supreme Court with a plea challenging the practice of Talaq-e-Hasan, by which a Muslim man can divorce his wife by saying the word “talaq” once a month, for three months. (Benazeer Heena v. Union of India & Ors)
  35. Last Week the Bombay High Court at Aurangabad imposed costs of ₹1 lakh on a petitioner seeking to stop the May 1 political rally of Maharashtra Navnirman Sena (MNS) Chief Raj Thackeray.  (Jaikishan Kamble v. State of Maharashtra)
  36. The Aurangabad Bench of the Bombay High Court issued directions to the State government to implement its policy decision to withdraw pending criminal cases against farmers and social activists filed in the course of their agitations.  (Ajit Kale v. State of Maharashtra & Anr)

Legal Prudent Fraternity