Today’s Legal Updates

Friday, 5th August 2022

Legal Awareness :- CONSTITUTION OF INDIA

Part – V THE UNION

CHAPTER- II  PARLIAMENT  (General)

Article – 82 Readjustment after each census. 

Upon the completion of each census, the allocation of seats in the House of the People to the States and the division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine:
Provided that such readjustment shall not affect representation in the House of the People until the dissolution of the then existing House:
Provided further that such readjustment shall take effect from such date as the President may, by order, specify and until such readjustment takes effect, any election to the House may be held on the basis of the territorial constituencies existing before such readjustment:
Provided also that until the relevant figures for the first census taken after the year 2026 have been published, it shall not be necessary to readjust—

(i) the allocation of seats in the House of the People to the States as readjusted on the basis of the 1971 census; and
(ii) the division of each State into territorial constituencies as may be readjusted on the basis of the 2001 census, under this article.

Today’s Legal Updates :-

  1. On Friday the Delhi High Court observed, Courts can become and act as the parent of a child to ensure that he/she is not deprived of the fundamental right to education. (Kamini Arya through Perokar v The State NCT of Delhi)
    • The Court thus directed the Delhi Police to facilitate the school admission of an eight-year-old child whose parents have been in judicial custody on allegations of murder.
    • Justice Sharma stated, A child must not suffer the consequences, on account of their parents having been in judicial custody for a crime which is yet to be adjudicated upon by the court. This court is duty bound to enforce fundamental rights of every citizen and in this case right to education of the child.
    • the judge ordered, The principal of the school will extend full cooperation for the admission of the child. A compliance report will be filed within 10 days.
    • The parents are in judicial custody and the prime concern of the parents is education of the child. It is not only in cases dealing with family disputes that the rights and welfare of the child should be considered but also in the cases as the present one, the courts can become and act as the parent of the child and ensure that the child is not deprived of its Fundamental Right to Education. Depriving any child of education due to family circumstances should not be allowed to every extent possible. An educated child educates the entire family and becomes an asset to the nation.
  2. On Friday the Delhi High Court observed that e-commerce platform Flipkart’s feature permitting third-party sellers to ‘latch on’ to a more popular brand’s name is nothing but ‘riding piggy back’ and constitutes passing off.  (Akash Aggarwal v. Flipkart)
    • the order said, This Court is satisfied that such a feature cannot be allowed to be used or offered, to the detriment of the owner of the brand or the person who has created the original product. Consent and authorisation of the brand owner and the listing owner would be required before such conduct by any seller is permitted.
    • the Court directed, The ‘latch on’ feature on Flipkart allows for latching onto various sellers. Such a feature cannot be used to the detriment of a brand. Flipkart has allowed third parties to latch onto these. Accordingly, Flipkart shall stand restrained from latching onto the plaintiff’s products, so as to enable third-party players from encashing upon their goodwill and reputation…The ‘Latching On’ feature must be disabled by Flipkart.
  3. On Wednesday the Kerala High Court observed that the conditions set by the Central Board of Film Certification (CBFC) for the theatrical release of a film, should also be complied with when it is streamed on Over-the-Top platforms (OTT Platform).  (Jose Kuruvinakkunnel @ Kuruvinakkunnel Kuruvachan v Union of India)
    • the Court said in its order, I find considerable force in the contention urged on behalf of the petitioner. The Board of Film Certification having considered all aspects and issued the directions at Ext.P8, the party respondents are bound to ensure compliance when their movie is released in theatres or through OTT mode. Therefore, even if OTT rights of the movie is sold, that can only be subject to the above condition.
    • the order, I am informed that the mechanism for regulating exhibition of movies through OTT platforms, is yet to be finalised. This is an aspect which requires serious deliberation and prompt action. The learned CGC shall cause a counter affidavit/statement to be filed by the first respondent, detailing the steps taken in this regard.
  4. On Friday the Delhi High Court ordered that confectionary brand Theo’s shall be geographically restricted to the Delhi-NCR region while its competing entity Theobroma shall be free to expand its outlets across the country.  (Theos Food Pvt Ltd & Ors v. Theobroma Foods Pvt Ltd)
    • Justice Prathiba M Singh ordered, Theobroma is free to expand its outlets under the mark/name ‘THEOBROMA’ across the country. However, Theos shall be restrained to the Delhi-NCR region, insofar as its goods and services provided under the mark/name ‘THEOS’/‘THEO’S’ is concerned.
    • If it (Theo’s) intends to extend its commercial activities outside the Delhi-NCR region, either in physical or in online mode, the same shall be done under a mark/name which is neither identical nor deceptively similar to ‘THEOBROMA’.
    • Neither party shall oppose each other’s marks or object to the same, in any manner, so long as the same are in compliance with the terms of this settlement.
  5. After the creation & establishment of the National Law School of India University, Bengaluru in 1986 another giant leap was taken by the Bar Council of India Trust to serve the cause of legal education, and research with integration of practical aspects of Indian and foreign legal education.
    • The India International University of Legal Education and Research (IIULER), Goa is an initiative of Bar Council of India Trust.
    • or Registration and more information visit the website.
    • Registration for the five year LL.B. & LL.M. Courses for the session 2022-2023 begins on July 18, 2022
    • Classes begin from the third week of September, 2022
  6. The Gujarat High Court has reiterated that a civil court lacks jurisdiction to entertain and decide questions about the citizenship of a person, and only the Central government is empowered to determine the same. (Akil Valibhai Piplodwala v Central Government)
    • the order read, There is no iota of doubt that as per Sub-section (2) of Section 9 of the Citizenship Act, 1955, read with section 40 along with schedule III of the Citizenship Rules, 2009, the said question can exclusively be tried by the Central Government.
    • the High Court said, The Court finds that any order rendering with issue falling under the domain of the Citizenship Act shall in no uncertain terms can be said to be usurpation of jurisdiction of authority under the Citizenship Act.
  7. On Friday Justice Sophy Thomas of the Kerala High Court recused herself from hearing a petition moved by CPI(M) leader M Swaraj challenging the election of Congress leader K Babu from Thrippunithura constituency in the 2021 assembly elections.  (Adv. M Swaraj v. K Babu)
    • Justice Thomas said, In this case, I want to recuse myself since I was also a voter in this election from Thrippunithura constituency. So I am addressing the Chief Justice and placing the file before him.
    • Swaraj in his plea has contended that Babu’s election should be declared null and void on the ground that Babu had canvassed votes taking advantage of the Sabarimala controversy.
  8. On Thursday the Kerala High Court observed that with proper resolve and regular upkeep of public roads, drains and canals, the effect of relentless rains that hit the State during the monsoon season can be better managed.  (Treasa KJ v State of Kerala)
    •  the Court observed in its order, Though it is too early to call victory, the change that the city has seen today certainly demonstrates that, with proper resolve, citizens can be spared of inundation every year. We cannot take the nature for granted any further and we must expect that such events will happen, for which everyone has to be ready, not at the time of monsoons alone, but even much earlier.
    • the Court said, Though the canals were kept ready this year, the drainage system appears to have been clogged and its opening up in the last two days have worked miracles. Irrefragably, therefore, the Corporation is now enjoined to keep the drainage system clean on a periodical basis, and not through an annual exercise alone.
    • the order stated, In future the collection of waste from various parts of the city will have to be ramped by the Corporation and any person found dumping it illegally or carelessly, taken to task. This Court is aware that citizens sometimes do this under the impression that they will not be apprehended, but they have to be aware that their one action puts the entire citizenry to peril, should diseases and epidemics arise out of it, which is not merely a probability but a certain possibility, if things proceed the way it is presently going.
  9. On Thursday the Calcutta High Court passed an interim order directing the Central government to refrain from deporting four Rohingya refugee women to Myanmar until 10th August 2022.  (Fatema Begum & Ors. vs. UOI)
    • a plea by the four women, who continued to remain detained in Dumdum correctional home even after they had served their period of detention on July 20, 2019.
    • the Court said, Since the writ petition contains a prayer for restraint on the respondent authorities not to deport the petitioner to Myanmar, this Court is of the view that until the matter is taken up for hearing by this Court, the respondents shall not give any effect to any order of deportation of the four petitioners, if any such order has been made after filing of the writ petition, till further orders are passed in the matter.
  10. On Friday the Karnataka High Court judge, Justice P Krishna Bhat batted for protecting the credibility of judicial officers and suggested setting up stringent and perhaps, novel measures including narcoanalysis of judges and complainants, to safeguard the integrity of judiciary and to also protect judges from malafide and false allegations.
    • If such an allegation is established or such a perception prevails, judge is not independent and credibility is permanently dented. What then is the remedy? 
    • Judges, Judicial Officers and such other high functionaries like Lokayukta/Upa Lokayukta, etc. should offer themselves for narco-analysis test with the simultaneous liability for similar test on persons named by the functionary concerned, if the functionary feels the complaint is false and motivated.
    • To my mind, threat to ‘Independence of Judiciary’ is a myth. Independence of judiciary is realised by an individual Judge remaining independent. How is that attained? It is only by the judge internalising certain values and virtues. It is the Judge who is a ‘recluse’ (in the felicitous words of Sri ES Venkataramaiah, former Chief Justice of India) makes for independent judiciary. A judge acting judiciously has so many protections under law.
    • uch situations have caused incalculable damage to credibility of the functionary in particular and institution at large. It goes without saying that a debate is required and safeguards should be crafted for preventing abuse of the process in this regard.
    • If the progeny of the judges of the most superior Court in the country call on the judicial officers at their residence with eager litigants in tow with an attempt to pass slips and thereafter, drop the name of their forbear with hints of protection, then there is a serious problem to the independence of the judiciary.
    • Such vanities are destructive of judicial independence. Such Judges render themselves unfit to hold any public positions.
    • advised judicial officers, You will be independent so long as you avoid doing excesses in the name of protocol. You will be independent if you undertake administration including recruitment processes in a fearless and independent manner regardless of possible ‘phone calls’ and ‘slips passed’ and inevitable possible reprisals.
    • the judge said, I entered the judiciary nearly a quarter of a century ago. Now the time has come for me to go; to hang up my judicial gown; I do so with plenty of satisfaction; satisfaction is because I have led my judicial life on my own terms – distractions of petitions and delicious name calling and misbranding notwithstanding.
  11. On Friday A public interest litigation (PIL) petition has been moved before the Kerala High Court seeking a report from the Ernakulam District Collector, Renu Raj, regarding the delay in announcing the decision to shut educational institutions on 4th August, when the district was under a heavy rainfall alert.  (MR Dhanil v The District Collector & Ors.)
    • the petition said, Most of the schools at Ernakulam district start functioning before 8 AM. The children need to start much earlier from home to school. Due to the delay in taking the above decision from the part of the respondents, the parent and children were in trouble. Most of the children were already in school, some of them were on streets, some of them were on buses, etc. The parents could not connect to the children as the phones are banned in the school.
    • The petition stated that on August 4, at around 8:45 am, the District Collector announced a holiday for schools including professional colleges through a post on the official Facebook page of the Ernakulam Collector.
    • Thereafter, it was clarified on the same page that the schools that had started functioning by then need not be closed and the students who had already reached schools, need not be sent back.
  12. On Friday the Supreme Court granted a Zee News Editor Rajnish Ahuja protection from arrest in connection with the first information reports (FIRs) registered against him for broadcasting a false news report claiming that Congress leader Rahul Gandhi condoned the recent killing of a man in Udaipur.
    • There shall be no coercive action against the editor with respect to the FIRs registered or the future ones. Issue notice to State of Rajasthan, State of Chhattisgarh and Union of India.
    • Appearing for the Editor, Senior Advocate Siddharth Dave told the Court that FIRs were registered against his client in Raipur in Chattisgarh and Sikar in Rajasthan.
    • The channel had broadcast a news show alleging that Rahul Gandhi had said that the murder of tailor Kanhaiya Lal Teji in Udaipur should be forgiven. Gandhi was, in fact, referring to those who had vandalised his office in Wayanad, Kerala, and not to the Udaipur killers.
  13. On Friday the Delhi High Court directed YouTuber Gaurav Taneja (Flying Beast) to remove his tweets in which he had named, tagged or hash-tagged Mint journalist Shephali Bhatt in relation to a favourable order secured by him against Bhatt last week
    • Awasthi said, All the legal websites are tweeting it. I can see two of the journalists logged into proceedings as well. If all the legal websites are reporting and their comments are open then why only me… This is a violation of my freedom of speech. Let me allow to post without naming and tagging her. If I am not allowed then there should be a similar order against legal websites also.
    •  the judge said, They are not parties here and I cannot pass a gag order against the media… Tell me how will you ensure there is no abusive post? Will you take responsibility if there is any abusive post? You take a guarantee that there will be no abusive post and I will not pass any order against you.
  14. On Friday the Supreme Court asked the Central government to file a fresh reply to the plea by a group of academicians and researchers seeking guidelines to govern investigating agencies in the country with respect to seizure, examination and preservation of personal digital and electronic devices and their contents.
    • the Court directed, We are not satisfied with the counter-affidavit and we seek a new and proper reply with references to international practices as well. List on September 26.
    • the Court said, But these have personal contents and we have to protect this. People live on this.
    • the bench remarked, The counter affidavit is not complete. Saying not maintainable etc is not enough. Please look into it yourself Additional Solicitor General. I don’t think an officer of this level can look into it.
    • the petition stated, The academic community does and stores its research and writing in the electronic or digital medium, and the threat of damage, distortion, loss or premature exposure of academic or literary work in the event of seizure of electronic devices is considerable.
    •  the petition said, A hard drive is a source of so much information which can be interpreted and misinterpreted, and the copy of what is seized must remain with an accused in a form that cannot be overwritten or changed so that he can offer his own interpretation of what is present, including involuntary downloads, access, and any interpolation can be detected.
  15. On Friday the Supreme Court allowed a plea by Reliance Industries Limited (RIL) seeking access to certain documents that were relied upon by the Securities and Exchange Board of India (SEBI) in a probe by the market regulator into a share acquisition matter. (RIL vs SEBI)
    • the Court held, Being a quasi-judicial body, the constitutional mandate of SEBI is to act fairly, in accordance with the rules prescribed by law. The role of a Regulator is to deal with complaints and parties in a fair manner, and not to circumvent the rule of law for getting successful convictions. There is a substantive duty on the Regulators to show fairness, in the form of public cooperation and deference.
    • the judgment said, There is a dispute about the fact that certain excerpts of the opinion of Justice (Retd.) B. N. Srikrishna, were disclosed to the appellant herein. It is the allegation of the appellant that while the parts which were disclosed, vaguely point to the culpability of the appellant, SEBI is refusing to divulge the information which exonerate it. Such cherry picking by SEBI only derogates the commitment to a fair trial.
    • Supreme Court stated, Opaqueness only propagates prejudice and partiality. Opaqueness is antithetical to transparency. It is of utmost importance that in a country grounded in the Rule of Law, institutions ought to adopt procedures that further the democratic principles of transparency and accountability. Principles of fairness and transparency of adjudicatory proceedings are the cornerstone of the principles of open justice,” the top court .
  16. On Friday the Madras High Court held that compassionate appointment scheme is violative of Articles 14 (right to equality) and 16 (equal opportunity in public service) of the Constitution of India and should be implemented only in deserving cases and strictly as per the terms and conditions.  (D Lokeshwari vs State of Tamil Nadu)
    • the Court said, Compassionate appointment is a concession and cannot be claimed as a matter of right. This scheme being a concession, is to be implemented scrupulously in accordance with the terms and conditions stipulated. This scheme being violative of Articles 14 and 16 of the Constitution of India, is to be restricted, so as to ensure that the appointments are made on compassionate ground only for deserving cases.
    • the judge opined, Thus, the lapse of time is also a ground to draw a factual inference that the penurious circumstances aroused on account of the sudden death became vanished. Thus, the scheme of compassionate appointment cannot be extended beyond the reasonable period, more so, after a lapse of several years.
    • Even if any one of the legal heirs are employed in government service or in private service and an earning member, then the family of the deceased employee is not eligible for the compassionate appointment.
  17. On Thursday the Supreme Court held that under Section 143A of the Negotiable Instruments Act (NI Act), an accused who fails to deposit interim compensation cannot be denied the right to cross-examine the witnesses examined on behalf of the complainant.  (Noor Mohammed v. Khurram Pasha)
    • the Court observed, Any such order foreclosing the right would not be within the powers conferred upon the court and would, as a matter of fact, go well beyond the permissible exercise of power.

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