Today’s Legal Updates

Tuesday, 5th April 2022

Legal Awareness :- CONSTITUTION OF INDIA

Part – XII FINANCE, PROPERTY, CONTRACTS AND SUITS

CHAPTER – I FINANCE

Miscellaneous Financial Provisions

Article – 282   Expenditure defrayable by the Union or a State out of its revenues

The Union or a State may make any grants for any public purpose, notwithstanding that the purpose is not one with respect to which Parliament or the Legislature of the State, as the case may be, may make
laws.

Today’s Legal Updates :-

  1. The Delhi High Court has directed Twitter, Instagram, Facebook and YouTube to take down nearly 30 profiles, channels or accounts which have been using the logos deceptively similar to that of Hindi news channel ‘Aaj Tak‘.  (Living Media India Limited and Anr v AabTak Channel.com (John Does) and Ors)
    • Justice Prathiba M Singh passed a John Doe order holding that there can be no doubt that the reputation and goodwill in the name ‘Aaj Tak’ is well established and the TV channel is one of the most popular news channels in the country whose mark deserves to be protected.
    • This Court is prima facie convinced that a case is made out for grant of an ad-interim injunction against some of the Defendants. Most of the offending names and logos used are infringing in nature. Thus, barring the name ‘Sach Tak’, all the remaining infringing profiles, accounts, videos, channels are liable to be taken down as they are either using identical or deceptively similar names including logos and writing styles which is a colourable imitation of the Plaintiffs’ Aaj Tak logo.
  2. Today Malayalam cine actor Dileep is an accused in the 2017 actress abduction and sexual assault case in Pulsar Suni, the prime accused has approached the Supreme Court seeking bail.   (Sunil NS v. State of Kerala)
  3. Today the Kerala High Court issued notice to former Bishop of the Jalandhar Diocese, Franco Mulakkal in the State government’s appeal against his acquittal in the nun rape case. (State of Kerala represented by Public Prosecutor v Bishop Franco Mulakkal)
    • The records would prima facie indicate that his (Mulakkal’s) supreme position had made the Sister to suffer the mental agony and trauma she had faced from the hands of the petitioner silently and when the trauma and harassment had become intolerable, she decided to lodge the complaint”
  4. Today the Supreme Court of India said that it will hear the case challenging the laws enabling the issuance of electoral bonds, which could impact elections and funding of political parties across the country.
    • The petition has assailed five major amendments which have been brought about through Finance Act, 2017 and Finance Act, 2016.
      • Section 31, the Reserve Bank of India Act, 1934 through Part III, Section 135 of the Finance Act, 2017.
      • Section 29C, the Representation of the People Act, 1951 through Part – IV, Section 137 of the Finance Act, 2017.
      • Section 13A, the Income Tax Act, 1961 through Chapter III, Section 11 of the Finance Act, 2017.
      • Section 182 of the Companies Act, 2013 through Part-XII, Section 154, the Finance Act, 2017.
      • Section 2 of the Foreign Contribution Regulation Act, 2010 (FCRA) through Finance Act, 2016.
  5. Today the Delhi High Court issued notice in a plea seeking a common banking code for foreign exchange transactions.
    • the plea filed by Bharatiya Janata Party (BJP) leader Ashwini Upadhyay sought a direction to ensure that Real Time Gross Settlement (RTGS), National Electronic Funds Transfer (NEFT), Instant Money Payment System (IMPS) and other similar modes of payment were not used for depositing foreign money in Indian banks.
    • Around 50K crore money is coming into the country to disturb our society. I don’t want to name what organisations are doing, but it is a very serious threat. Therefore I want a uniform banking code.
  6. Today the Supreme Court bemoaned the fact that every case before a lower court or tribunal was ending up before the top court.
    • Justice KM Joseph said, We do not want to use the word, but legislature has been dumb in this regard. We don’t want to use the word but that is the word. We do not know what happened to Roger Mathew…every case ultimately ends up in this Court.
    • Attorney General KK Venugopal submitted, After Roger Mathew judgment, a Tribunal Reforms Act was brought in and it was struck down. Now thereafter an ordinance was brought in and it is under challenge. Government is quite clear that so far as court is concerned, it is a policy issue we have maintained.
    • This does not have an explicit exclusion but has an implicit exclusion. This is by way of direct appeal in Supreme Court. A somewhat same scenario appeared in the National Tax Tribunal case, where it gave a direct appeal to the Supreme Court.
    • Justice KM Joseph remarked, Why cannot NGT have a bench in each State? It will be helpful and lighten the burden and address the concerns and more people will be encouraged to take up environmental issues. People will avail of it.
  7. Today the Madras High Court declared unconstitutional Section 32(2)(a) of the Prohibition of Benami Property Transactions Act, 1988, which made a member of the Indian Legal Service eligible for appointment as a judicial member in the appellate tribunal under the Act. (V Vasanthakumar v. Union of India)
  8. Today the Supreme Court refused to entertain petitions seeking extension of deadline for completion of internship to be eligible to apply for the National Eligibility cum Entrance Test post graduate exam 2022 (NEET PG 2022). (Shikhar and Anr v. National Board of Examination and Ors.)
    • Whenever there is a cut-off certain students are likely to fall on either line of dividing line. Any extension of the cut off would result in the disruption of the education schedule as indicated by the Additional Solicitor General Aishwarya Bhati. The alternative prayer for including of COVID-19 duties in internship, as suggested by Senior Advocate Gopal Sankaranarayanan, will also involve the Court to micromanage the whole situation. Though there will undoubtedly be an element of hardship, it would not be possible for this stage to disrupt the education of a large body of students. Therefore, at this stage, we will not interfere with the curriculum.
    • “Any extension of the cut off further would result in disruption of education schedule. Hence, it would not be appropriate for the court to exercise any such directions. For those students whose internship commenced later, even in that case, it would not be possible to disrupt the education curriculum of a large number of students. Therefore, no interference from the court’s side. The matter is disposed of,” 
  9. Today the Bombay High Court stayed the order summoning Bollywood actor Salman Khan and his bodyguard Nawaz Shaikh in a complaint of criminal intimidation filed in 2019 by a journalist.
    • the Magistrate had noted, The investigating officer has quoted that offences under Section 504 (intentional insult with intent to provoke breach of peace), 506 (criminal intimidation) of the Indian Penal Code have been made out against the accused.
    • If any prosecution, the same be issued against my bodyguards. On the date of the incident the complainant sent a letter to the police station, there is no mention of Khan in that. Thereafter in June when it was filed again, then his name has reflected.
    • You are a journalist. If anybody would have committed any kind of assault against you, then you wouldn’t have kept quiet. It would have reflected in your complaint to the police.
  10. Today the Delhi High Court dismissed a public interest litigation (PIL) petition challenging the mandatory requirement of Aadhaar to avail foodgrains under the National Food Security Act (NFSA).  (Delhi Rozi-Roti Adhikar Abhiyan vs Union of India & Ors)
    • It is not Articles 14 or 19 that it cannot be repealed. The National Food Security Act is not a basic structure in that sense. It is right conferred by Parliament on certain section of people with a view to provide foods security. Now if they have tied it up with Aadhar to identify persons and ensure that there is no leakage then what remains.
    • Our understanding of the Supreme Court judgment in Puttaswamy and Aadhar act is that if you wish to avail any beneficial scheme that you could be required to have Aadhar cards … Parliament has enacted both the acts and they have said you will get the benefits in certain conditions.
  11. Today the Kerala High Court held that lack of consent in a rape case cannot be presumed merely because a man entered into marriage with another woman after engaging in a sexual act with the victim.  (Ramachandran @ Chandran v State of Kerala)
    • The Court stated that a combined reading of Section 90 of the IPC and Section 114-A of the Indian Evidence Act gives the following proposition of law in the context of sexual relationship on a promise to marry:-
      • Law presumes lack of consent when a woman states in evidence that she did not consent, if the prosecution is able to prove sexual intercourse by the accused.
      • This presumption is available in favour of the prosecution if the consent was obtained in any of the circumstances narrated under Section 90 of the IPC.
      • The woman must state in evidence the foundational facts constituting elements for false promise or non disclosure of materials facts.
    • the Court held, Merely for the reason that the accused contracted another marriage immediately after the sexual act with the victim cannot give rise to the presumption of lack of consent.
    • Non-disclosure of material facts by the accused affecting the consent would amount to violation of the sexual autonomy of the woman. Sexual autonomy consists of two requirements. First, the possession of relevant information and second the ability to act in accordance with the personal assessment of that information. The material facts known to the accused if not shared with the woman at the time of committing the sexual act, certainly would encroach upon her right to protect her decisional autonomy. Section 375 of IPC clearly envisages any violation of sexual decisional autonomy as an offence.
    • The offender may have the intention to marry; he may also know at the time of committing the sexual act that there are obstacles to the marriage. If he was not certain about the marriage, he is bound to disclose that fact to the woman. If such fact was not disclosed, consent may fall under the category of ‘misconception of fact’ and the consent would be vitiated under the category of misconception of fact as referred to in Section 90 of the IPC.
    • The judgement rendered by the Court began with a summary of the questions:-
      • In what circumstances does sex on a promise to marry become rape?
      • Does the law postulate determination of the criminality of the sexual act in the context of ‘consent’ on the premise of inviolability of sexual autonomy?
      • Does law contemplate to categorise a sexual act based on consent only on the understanding of the woman?
    • It is to be remembered that the statutory provisions of the offence of rape as understood in the Indian Penal Code, is not gender neutral. A woman, on a false promise of marrying and having sexual relationship with a man, with the consent of the latter obtained on such false promise, cannot be punished for rape. However, a man on a false promise of marrying a woman and having sexual relationship with the woman would lead to the prosecution’s case of rape. The law, therefore, creates a fictitious assumption that the man is always in a position to dominate the will of the woman. The understanding of consent therefore, has to be related to the dominant and subordinate relationship in a sexual act.
    • Had the accused disclosed information about the chances of marriage, would she have consented? If there was no full disclosure of factors that could have a bearing on the consent of the woman, can we hold that such cases fall in the category of breach of promise?
    • Sexual autonomy of a woman to decide upon her body is a natural right and part of her liberty. The dominant nature of men to subordinate the decisional autonomy of women has been perceived by the legislature while making the penal provision as not gender neutral. The law presumes a man’s position to subordinate the decisional autonomy of a woman. The idea of the legislature is to protect the sexual autonomy of the woman.
    • We cannot ignore the social circumstances of the parties. The lack of consent has to be stated by the prosecutrix.
  12. Today the Bombay High Court agreed to hear a petition seeking a declaration that the collection of fines from citizens for not wearing masks by ‘clean-up marshals’ during COVID-19 lockdowns in Mumbai was illegal.
    • Why should they get back the money through a PIL? Why can’t they themselves come and challenge the action initiated against them? Not all of these citizens who are fined by the civic body are poor people. There might be even rich people among these. So can’t the rich come to court and seek the refund?
  13. Today A Delhi Court dismissed the bail plea of Rashtriya Janata Dal (RJD) youth wing leader and Jamia Millia Islamia student Meeran Haider in an Unlawful Activities (Prevention) Act (UAPA) case related to the Delhi Riots of 2020. (State v. Meeran Haider)
    • On the perusal of the charge­sheet and accompanying documents, for the limited purpose of the bail, I am of the opinion that allegations against the accused Meeran Haider are prima facie true.
    • Thus, the ground of trial taking a long time by itself is not a ground for bail. The court is guided by the provisions of Section 437 CrPC (Code of Criminal Procedure) and Section 43­D of the UAPA.
    • Section 437 of CrPC places an additional condition before releasing a person on bail if there are reasonable grounds for believing that accused has been guilty of offence punishable with death or imprisonment for life. Similarly, Section 43D of the UAPA stipulates that an accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds to believe that the accusation is prima facie true.
  14. Second year law student Surabhi Panchpal from Haryana was found hanging in her room in the girls’ hostel of National Law University, Odisha at around 8:00 pm on 4th April.
    • The students of NLUO are expressing their grief at this moment. We have suffered a lot thus far, and have many issues at hand. We beseech you to allow us to grieve and give us time to process such an untimely loss of a fellow student.
  15. Yesterday the Bombay High Court issued notice to the Central government and the Food Safety and Standard Authority of India (FSSAI) on a public interest litigation (PIL) seeking labelling of meat food products ‘humane’ or ‘non-humane’.
  16. Today Senior Advocate of Rajasthan High Court Sukhdev Vyas passed away.
  17. Today the Bombay High Court observed in a plea against transport aggregators, it is not within the scope of courts’ powers to dictate what features cab aggregators like Ola and Uber should include in their mobile applications. (Savina Crasto v. State of Maharashtra & Ors)
    • The legislature has powers to issue guidelines. How can the Courts do so? You want the app to have to certain features, but can we do it?… The State is there to frame guidelines.
    • We do not like to fall behind, we do not want Ola to have better business than Uber. That is not good for our business. There is a service available of the same nature. My friend says there is no provision for complaint. If the State says there is something that I must incorporate, then we will incorporate the same. Whatever is the grievance can be checked, and the same can be deposed in an affidavit. If required, we will deal with it or incorporate it.
    • The State is expected to consider the experiences and the nature of complaints that are lodged with the aggregators with the apps formulated by the aggregators for the purpose of finding deficiency if at all in the system. The deficiencies will be addressed in a time bound manner. The State is at liberty to give suggestions to implement guidelines.
  18. Today the Delhi High Court issued notice to the Table Tennis Federation Of India (TTFI) on a plea seeking appointment of an independent auditor to examine its financial records and accounts. (Manika Batra v TTFI)
    • All the matters relating to this Agreement need a very urgent scrutiny under the orders of this court if the sport of table tennis is to achieve the glorious heights which it can attain, given the contributions and efforts of individual players who are devoting private and personal resources in developing their sport, so much so that more than fifteen Indian players are ranked at less than hundred in the international rankings.
  19. Today the Karnataka High Court directed the Bruhat Bengaluru Mahanagara Palike (BBMP) and the company entrusted with work of filling up potholes in Bengaluru roads to conduct a joint survey and come up with an action plan for repairing the roads.  (Vijayan Menon v. Secretary and Anr)
  20. Yesterday the Union Ministry of Information and Broadcasting Ministry blocked 22 YouTube news channels, 4 social media accounts and a website using its powers under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules).
  21. Today the Karnataka High Court held that only an Indian citizen can maintain proceedings under the Maintenance and Welfare of Parents and Senior Citizens Act of 2007.  (Dephny Gladys Lobo and Anr v. Asst. Commissioner and President and Anr)
    • It is therefore evident that she is not an an Indian citizen as the Constitution of India does not provide for dual citizenship. Sub section (h) of section 2 of the (The Maintenance and Welfare of Parents and Senior Citizens Act, 2007) Act defines “Senior Citizen.
  22. Today the Supreme Court granted the Central government four weeks to file its counter affidavit in a plea challenging the validity of Section 15 of the Hindu Succession Act, 1956. (Kamal Anant Khopkar Versus Union of India & Anr.)
    • Section 15 of the Hindu Succession Act gives priority to the heirs of the husband over the parents of the deceased if a Hindu woman dies without making a will.
    • Section 15(2) provides source of acquisition of property as a basis to devolution of a property of a woman dies intestate-issueless; whereas for man under Sections 8 or 10 no source based devolution of a property is provided when he dies intestate. Further the property of a woman goes back to a source from whom she inherited the property such as father, husband and father-in-law. However again it discriminates against mother, as, even if woman inherits from her mother, her father‘s heirs succeed the property.
    • Succession laws for Hindu women are governed by the Hindu Succession Act, 1956. Section 14 of the Act clarifies Hindu woman is absolute owner of her property and Sections 15 and 16 give the rules of inheritance and the order of succession.
    • Social status based on patriarchal values or social status based on male compassion are completely inconsistent with Articles 14 and 15 of the Constitution.
  23. Today the Bombay High Court reserved its verdict in the plea filed by Bhima Koregaon accused Gautam Navlakha praying that he be transferred from Taloja prison and placed under house arrest instead.  (Gautam Navlakha v. National Investigation Agency & Anr.)
    • Advocate Yug Mohit Chaudhry for Navlakha made the following submissions:-
      • Navlakha had been under house arrest for 35 days before being protected from arrest by the Supreme Court thereafter for over 1 year and 7 months without any prejudice having been caused to the investigation agencies.
      • There are no allegations against Navlakha of perpetrating a violent act or being involved in any violent act.
      • Multiple chargesheets have been filed, evidence has been seized and hence, there is no question of him tampering with evidence.
      • Keeping a 70-year-old in prison with the kind of facilities available will not benefit him during the trial.
      • Navlakha has no criminal antecedents at all.
      • If the Court finds it necessary, it could direct Navlakha to partly bear expenses of being detained at home.
    • Additional Solicitor General Anil Singh appearing for NIA, opposed the petition on the following grounds:-
      • Navlakha ought to have approached the Special NIA Court with an application for house arrest before coming to High Court.
      • Grounds raised in the plea are general and does not justify the prayer for house arrest.
      • Order to keep him under house arrest will pose practical difficulties.
      • The regular bail application filed by Navlakha is pending before the Special NIA Court, so the submissions like offences charged and delay in trial can be made before the Special Court as well.
      • His medical bail application was rejected earlier without assigning proper reasons which was not challenged.
      • His default bail application was also rejected, and the present application was indirectly seeking bail under the garb of house arrest.
      • Jails have over 1000 people who are above 70 and if the present plea is allowed, others will also approach courts seeking house arrest because of ailments, and it will be difficult to implement those orders.
      • There are practical difficulties in implementing the order, as the house logistics will have to be worked out, and also the aspect that the person accompanying him may be active on social media.
  24. Today A Delhi Court has denied bail to eight men arrested in connection with a recent case of vandalism outside the official residence of Delhi Chief Minister Arvind Kejriwal. (State v. Chander Kant Bhardwaj & Ors)
    • There is no doubt that right to assemble and protest by political party is a fundamental right. But having noted so it can also be noted that such right is subject to certain restrictions and not an uncontrolled one. In the present case, it is not a simple case that they protested and ended their protest then and there. But as per the investigation carried and reply filed by the Police, despite telling protesters and their leaders, including the present applicants, they can protest at a particular place, they did not comply with the same.
    • Further, it may be noted that such protesters/applicants had no regard even to the directions issued by the High Court which were communicated to them, as per the reply of Delhi Police, that no protest is allowed at CM house, as they still continued with their protest.
    • Therefore, when an individual behaves in a disharmonious manner ushering in disorderly thing which the society disapproves, the legal consequences are bound to follow.
  25. Today the Kerala High Court ordered the State government to pay ₹2.5 lakh each as compensation to two men who were jailed for over 50 days each on false charges under the Abkari Act.  (Anilkumar AB v State of Kerala & Ors.)
    • t is a settled position that, when the infringement of the fundamental right is established, the Constitutional Court should not stop by giving a mere declaration; it must proceed further and provide compensatory relief, not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done due to breach of public duty by the State for not protecting the fundamental right to the life of the citizen.
    • Now, if an Abkari officer is having enmity with a person, he can easily implicate that person as an accused if there is a bottle and small quantity of illicit liquor. These two cases are the classic examples in which two innocent citizens were implicated falsely in an Abkari case.
    • In such situation, in my opinion, a detailed study or enquiry is necessary by a competent person appointed by the State about the manner in which arrest, seizure, investigation, etc in abkari cases have been made at least for the last 5 years and whether there is any further change in the mode of investigation is necessary.
    • The tax paying citizens should not be burdened with this liability. Therefore, the State should pay the amount and should take appropriate steps to recover the same from the parties who are responsible for the registration of the cases against the petitioners and who are responsible for the illegal confinement of the petitioners by infringing the personal liberty of the petitioners.
    • A man in jail alone will know the trauma faced by him. Even if the jail is constructed with beautiful walls and contain a good atmosphere, it is not a consideration at all for fixing compensation, because jail is always jail.
  26. Today the Bombay High Court in a order said that offences under the Maharashtra Control of Organised Crime Act (MCOCA) are different from the regular crimes and any person helping an organised group either before or after an offence is committed would be considered as having been a member of the crime syndicate.  (Rajendra Patole vs State of Maharashtra)
    • Organized crime is different from regular crime. If for gaining pecuniary benefits, economic/other advantage unlawful activity is continued it is an organized crime. It must be undertaken on behalf of the organized crime syndicate, whose members are involved in criminal activity, which has become their source of livelihood.
    • There may be new accused or combination of old and new participants. What is important is all these offences are connected through the web of organized crime syndicate.
    • Present Petitioner assisted the arrested accused in committing the offence. Helping them to run, to take shelter attracts invocation of Indian Penal Code (IPC). In that manner, the Petitioner has become member of that crime syndicate.
    • It is not always necessary that every accused must be present on the spot. There are various circumstances in the chain of circumstances. In that chain, it may happen that set of accused persons may be present at the spot, some of the accused have played a role prior to commission of offence and some of them have participated post commission of offence.
  27. Today Indian Medical Association has moved the Supreme Court seeking guidelines to ensure safety of doctors across the country from arbitrarily and illegally being booked by police for serious criminal charges on complaints of medical negligence.
    • Qualified doctors are being victimizes by the illegal and arbitrary treatment from the State police under the presumption of medical negligence.

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