Today’s Legal Updates

Monday, 6th March 2023

Legal Awareness: – CONSTITUTION OF INDIA

Part – Vl THE STATES

CHAPTER- IITHE STATE LEGISLATURE

Procedure in Financial Matters

Article – 203 Procedure in Legislature with respect to estimates.

  1. So much of the estimates as relates to expenditure charged upon the Consolidated Fund of a State shall not be submitted to the vote of the Legislative Assembly, but nothing in this clause shall be construed as preventing the discussion in the Legislature of any of those estimates.
  2. So much of the said estimates as relates to other expenditure shall be submitted in the form of demands for grants to the Legislative Assembly, and the Legislative Assembly shall have power to assent, or to refuse to assent, to any demand, or to assent to any demand subject to a reduction of the amount specified therein.
  3. No demand for a grant shall be made except on the recommendation of the Governor.

Today’s Legal Updates: 

  1. On Monday Journalist Swati Chaturvedi has approached the Delhi High Court challenging the summons issued by a magistrate in a defamation case filed by Bharatiya Janata Party (BJP) leader Tajinder Pal Singh Bagga.  (Swati Chaturvedi v State and Anr)
    • The case relates to a Tweet posted by Chaturvedi in March 2017 wherein she commented on the BJP’s move to appoint Bagga as its spokesperson.
    • The tweet read, “Now the man who beat up @pbhushan1 was arrested in a sexual harassment case speaks for @BJP4India. Good job.”
  2. On Monday the Kerala High Court has initiated a suo motu case regarding the toxic haze and smog in Kochi due to a fire at the Brahmapuram garbage dump and waste plant located on the eastern edge of the city.  (Suo Motu v State of Kerala)
    • The fire which began last week at the waste plant at Brahmapuram had led to a drastic dip in air quality in the coastal city which otherwise boasts of clean air.
    • A division bench of Justices K Vinod Chandran and C Jayachandran will hear the matter at 10 am tomorrow.
  3. On Friday the Delhi High Court temporarily restrained a real estate construction company, Vistara Buildtech, from using the ‘Vistara’ mark of Vistara Airlines.  (Tata SIA Airlines Ltd. vs Vistara Buildtech LLP)
    • the Court said, VISTARA is a coined word, which has no known meaning or etymological significance. The plaintiff has been using the mark VISTARA since at least 2015, and the plaint asserts that the defendants as a partnership firm came into existence in 2022 and are yet to commence building operations under the impugned marks.
  4. On Monday Uttar Pradesh BJP spokesperson, advocate Prashant Umrao has approached the Delhi High Court seeking transit anticipatory bail in the case registered against him by the Tamil Nadu police over a tweet he made regarding alleged attacks on migrant workers in the southern state.
    • Umrao has been booked under Sections 153 (provocation for rioting), 153A (Promoting enmity between different groups on ground of religion, race, place of birth, residence, language), 504 (intentional insult with intent to provoke breach of the peace) and 505 (statements conducing to public mischie) of the Indian Penal Code (IPC).
    • In his tweet, Umrao had shared a picture of Bihar Deputy Chief Minister (CM) Tejashwi Yadav with Tamil Nadu CM MK Stalin stating that “12 migrant workers from Bihar were hung to death in Tamil Nadu for speaking in Hindi”.
    • The petition will be heard by Justice Jasmeet Singh on Tuesday.
  5. On Monday the Calcutta High Court bemoaned the “abysmally low” patient – doctor ratio and the paucity of doctors in government hospitals. (State of West Bengal vs Madhab Sarkar)
    • A division bench of Justices Harish Tandon and Prasenjit Biswas said that the health sector plays a pivotal role in the development of the society.
    • the bench observed in the order passed on 6th February, The instant case is not falling under the service in the Administrative Department of the government. The health sector being a most important sector in the administration of the system for not only rendition of the services to the society but to the humanity as well. The health of the citizenry plays a very pivotal role in the development of the society and the country. The people – doctor ratio in the country is abysmally low and there is a dearth and paucity of the Doctors at the government hospitals where the poorest of the poor got benefit of the treatment.
    • the bench held, The government may decline to grant voluntary retirement on public interest and once such decision is taken unless it appears that the provision is so stringent that it cannot be brindled by any incorporation, the fullest effect to such provision is required to be given.
  6. On Monday the Madras High Court said the High Court administration has no power to seek review of any orders passed on the judicial side. (The High Court of Judicature at Madras, rep. by its Registrar General v. Thirumalai)
    • The judgment sought to be reviewed was passed by Justice Asha herself on 5th May 2022. In that verdict, she had directed the Tamil Nadu (TN) government to effect necessary amendments to the TN Motor Vehicles Accident Claims Tribunals Rules with regard to payment of court fees.
    • The Court had also issued guidelines to regulate the exemption of court fees under the MV Act until the amendment was brought in by the State. These guidelines mandated, among other things, that claimants seeking such exemption must submit an affidavit saying they do not possess the wherewithal to pay the court fee despite having a salaried income. This affidavit must be sworn before the Notary, the High Court had held.
    • the order, I am faced with a rather strange conundrum of the High Court on its Administrative side seeking leave to review an order passed by it on its judicial side, particularly when the High Court is not even a party to the proceedings leave alone an aggrieved party. Is this Court therefore confronting a two faced JANUS?
    • Therefore, the guidelines passed by this Court asking a claimant to file an affidavit is only to state that despite he being an earning member he does not have the wherewithal to pay a court fee. This is in the interest of the claimant who will not be forced to prove his indigent circumstances. This by no stretch of imagination can be called prejudicial to the interest of the claimant. Further, the direction asking for the affidavit to be sworn before a notary public is only to ensure its authenticity. Therefore, the need to review these guidelines that too by the Court which is not the aggrieved party does not arise.
    • the Court said, Therefore, the present petition seeking leave to review which does not come within the parameters supra, cannot be entertained as it would amount to undermining the Judicial fibre whose touchstone is its fierce independence and to discharge its duty without any kind of fear or favour.
  7. Delhi International Arbitration Centre conducted the first edition of its flagship event – the Delhi Arbitration Weekend (DAW) 2023 from February 16 to February 19.
    • The inaugural session took place on February 16 and began with a special address by the Guest of Honour, Former Attorney General for England and Wales and for Northern Ireland Lord Peter Goldsmith, PC KC followed by a keynote address by Chief Justice of India (CJI) DY Chandrachud.
    • The opening session also saw addresses by Delhi High Court Chief Justice Satish Chandra Sharma and Justice Vibhu Bakhru.
    • The innaugural session also saw a performance by widely acclaimed Hindustani Classical Vocalist Kalapini Komkali with Tabla Accompanist Ramendra Singh Solanki, Harmonium Player Niranjan Lele, and Percussionist Anurodh Jain.
    • The weekend’s concluding session took place at noon on Sunday with a special address by Supreme Court Judge Justice Sanjay Kishan Kaul, an address by the Chief Guest Union Minister of Law & Justice Kiren Rijiju, and a vote of thanks by Delhi High Court Judge Justice Rekha Palli.
  8. On Monday the Delhi High Court ordered the Delhi government to carry out a special recruitment drive to fill up vacancies reserved for persons with disabilities (PwDs) in various government departments. 
    • A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad passed the order after noting that there are 1,351 vacancies available under the Direct Recruitment quota for PwD candidates, which includes 356 vacant posts for visually impaired people.
    • the order, The DSSSB/UPSC, as the case may, shall conduct written test/ interview/ process of selection within 30 days from the last date of receipt of applications by the DSSSB/ UPSC…The DSSSB/ UPSC, as the case may, shall declare the result and the process of appointment be concluded within a period of 30 days from the date of declaration of result/ interview.
    • Convening of Departmental Promotion Committee (DPC)/ Interview by the concerned authority be concluded within 45 days from the date of finalization of the list of eligible candidates… The order of appointment be issued within 30 days from the date of convening of DPC/ Interview, as the case may be.
    • The SCPD after examination of the said record will again workout backlog of vacancies, if any, and shall be free to direct the concerned departments/ establishments to fill up the backlog of vacancies so worked out by him in the manner and method as directed by him by adhering to the time schedule as framed by this Court.
  9. On Monday advocate Yeshwanth Shenoy has moved the Kerala High Court challenging a show cause notice issued to him by the Bar Council of Kerala (BCK) and has alleged that documents are being leaked from the High Court Registry to news agencies.
    • The following is the sequence of events that led to the present plea:
      • February 9 – Shenoy appears before Justice Mary Joseph for a matter. Justice Joseph writes to BCK making allegations of misbehaviour against Shenoy;
      • February 14 – BCK issues show cause notice to Shenoy;
      • February 27 – Shenoy files and registers a plea alleging that only a very limited number of cases are listed each day before Justice Mary Joseph when other judges have to deal with hundreds of cases daily. A suo motu criminal contempt of court case against Shenoy is filed and registered;
      • February 28 – A division bench issues notice to Shenoy on the contempt case;
      • March 1 – A media organisation publishes an article allegedly containing excerpts from the contempt petition that was registered on the basis of a complaint letter sent by Justice Joseph to the Chief Justice. Shenoy’s plea comes up before Justice Shaji P Chaly who directs the High Court Registrar General, who is arrayed as a respondent, to engage a counsel;
      • March 3 – Shenoy’s plea is taken up again but Justice Chaly decides to hear the matter first on maintainability and posts it for hearing on March 17. Senior Advocate NN Sugunapalan is engaged by the Registrar;
      • March 3 – Shenoy files the present plea.
    • the plea said, When the Petitioner himself was not been given the notice in accordance with the order of this Hon’ble Court, it is clear that news agencies get documents from the registry even before the parties to the proceedings obtain the same. This aspect needs to be seriously investigated and responsibility fixed.
  10. The Allahabad High Court directed the Principal Secretary of Uttar Pradesh (UP) to conduct inquiry against officials of the National Highways Authority of India (NHAI) for delaying, for years, the award of compensation in respect of land acquired from nine villages for a highway project. (Rajesh Chandra v State & Ors)
    • A bench of Justices Sunita Agarwal and Justice Manjive Shukla passed the order on a plea by the land holders of one such village, who were dispossessed of their landed property for the highway project.
    • the Court said, The fact remains that the land holders of village Bheekampur, the land subject matter of dispute, herein, along with 8 other villages, had been dispossessed/ deprived of their landed property and the construction of National Highway-II between the aforesaid section of the road has been completed without payment of compensation to them, which is nothing but a clear violation to the constitutional mandate under Article 300-A of the Constitution of India.
    • the Court ordered, The inquiry report shall be shared with the concerned Minister of the Ministry of Road Transport & Highways, Government of India, New Delhi and action against the guilty officials accordingly, shall be initiated both on the civil and criminal side.
    • the Court said, We may note at this juncture that the authorities have slept over the matter for a period of more than 3 years since after the notices were issued in the year 2018 and they were reactivated only when the present writ petition has been filed.
    • the Court said, It goes without saying that the financial loss caused to the State and the Central Government, if any, in the matter, on account of the delay in determination of compensation for the land holders due to levy of of interest on the amount determined under the award, shall be recoverable from the personal pockets of the guilty officials.
  11. On Monday Kerala High Court judge Justice Bechu Kurian Thomas stressed on the need to instill confidence in a child-survivor under the Protection Of Children from Sexual Offences Act (POCSO Act) case so that the child can speak the truth, thereby ensuring that only the guilty will get punished.
    • Justice Thomas said, The intention of creating a victim-centric approach is not to convict the accused in all cases, but only to ensure that she has the confidence to speak the reality, truth, so that only the guilty get punished.
    • he said, These predators, the manner and mode in which they commit this act (sexual abuse) is unimaginable. Those who have undergone this sexual abuse will only realize.
    • Justice Thomas suggested, Every media public/private has to get a license. Why not incorporate a condition that every day it denotes 1 minute for a sexual awareness campaign? This can have a far-reaching effect as it goes deep down in the villages. The illiterate… all watch Television, even though they cannot read and write. If a particular time is denoted for this in print, social media, TV, radio… The government has not given any concern for this.
    • he said, The provisions of the act have actually not infiltrated into those who are the real victims, the children. They are the ones to be aware. Boy or Girl regardless. Awareness is very important and it has to start from school.
  12. On Monday the Maharashtra government informed the Bombay High Court that it will issue a government resolution within a week providing a third window to transgender persons to apply to employment and education forums.  (State of Maharashtra v. Arya Pujari & Ors)
    • Advocate General Dr Birendra Saraf also informed the Court that a committee will by constituted by the State within a week, in line with the Transgender Persons (Protection of Rights) Rules of 2020.
    • the Police Recruitment Rules would be amended to include physical standards for transgender persons for the posts of constables and drivers. 
    • He added that general directions in that regard will be issued by the social justice department of Maharashtra within 2 days.
    • The Central Rules of 2020 were issued in order to implement the Transgender Persons (Protection of Rights) Act of 2019. The Rules provide for a procedure that could be followed for a transgender person to be identified for purposes of employment.
    • The advertisement issued by the MahaTransco was to recruit Assistant Engineers (Transmission) for 170 vacant posts.
  13. On Monday the Rajasthan High Court sought replies from the Union government, the State government, and the Bar Council of India (BCI) before it takes a call on guidelines that it may issue for the protection of advocates from violence, harassment, and threats. (Prahlad Sharma v UOI & Ors)
    • Acting Chief Justice Manindra Mohan Shrivastava and Justice Anil Kumar Upman was dealing with a petition for the framing of an appropriate legislation for the protection of advocates, which has been pending since 2020.
    • the Court observed, We, thus, find that though the grievance of the Members of the Bar has been taken up for consideration at different level, but till date no legislation has come.
    • the Court added, The Bar Council of India may also come out with appropriate suggestions in the matter towards framing of guidelines.
    • the Court observed, The steps contemplated in future on the part of the respondents would be clear only from their reply.
  14. On Monday the Rouse Avenue Court, Delhi remanded Aam Aadmi Party (AAP) leader and former Delhi Deputy Chief Minister Manish Sisodia to judicial custody till March 20 in connection with the Delhi excise policy case.
    • the Court ordered, An application to send the accused to judicial custody has been filed. It is submitted that the police custody is no longer required and the same may be sought later, if required. In view of submission made, the accused is sent to judicial custody till March 20.
    • the CBI counsel said, We are not seeking custody right now. But we may do in future. Their supporter and media is politicising the matter.
    • the CBI said, Witnesses are terrified. Media is giving political colour.
    • Senior Advocate Mohit Mathur, I am appalled by submission like this. Are they scared of media?
    • the Court said, If media is reporting, they are reporting. As long as protests are peaceful, it is fine.
  15. The High Court of Jammu & Kashmir and Ladakh held that Peoples Democratic Party (PDP) youth leader, Waheed Ur Rehman Para, can be sworn in as a member of the District Development Council (DCC), Pulwama, if there are no legal restrictions on administering the oath of office to the UAPA accused under the Panchayati Raj Act and Rules. (Waheed Ur Rehman Parra V/s UT of JK and Ors.)
    • the order, This Court deems it appropriate to observe that in case if there is no legal restriction/prohibition envisaged under the Panchayati Raj Act, 1989 read with Panchayati Raj Rules 1996 in administering the oath of office to the petitioner by the Deputy Commissioner, Pulwama, then the Deputy Commissioner, Pulwama shall not default in carrying out the statutory duty of administering oath of office to the petitioner.
  16. On Friday the Delhi High Court set aside a sessions court order directing that a First Information Report (FIR) be registered against Bharatiya Janata Party (BJP) leader Shahnawaz Hussain and his brother in a rape case. ‘
    (Syed Shahbaz Hussain v Govt. of NCT of Delhi)
    • Justice Amit Mahajan reversed the order which held that police authorities are not required to conduct preliminary inquiry if the complaint discloses the commission of a cognisable offence.
    • the single-judge reasoned, It is clear that while exercising powers of a revisional court, no order to the prejudice of an accused or any other person can be made by a court unless the said accused or the said person has been given an opportunity of being heard.
    • In view of the law as discussed above, the impugned judgment dated 31.05.2022 is set aside. The Criminal Revision No. 254/2018 is restored and is remanded back to the concerned Court for a decision afresh after giving an opportunity of hearing to the petitioners.
  17. On Monday the High Court of Jammu and Kashmir and Ladakh directed the government of Jammu and Kashmir to file a status report on the steps taken to implement the Right to Free and Compulsory Education Act, 2009 (RTE Act) in the Union Territory.  (Young Lawyers Forum V/s UT of J&K & Ors.)
    • the order passed on 1st March, Respondents shall file status report with regard to the steps undertaken by the respondents for implementation of the Right of Children to Free and Compulsory Education Act, 2009 positively by next date of hearing with particular reference to the schools as defined under Section 2(n)(ii) and 2(n)(iv) of the said Act of 2009.
    • The order was passed on a public interest litigation (PIL) petition moved by an NGO, ‘Young Lawyers Forum’, through its counsel advocate Huzaif Ashraf Khanpori, seeking the implementation of RTE Act in Jammu and Kashmir.
    • The lawyer further pointed out that the non-implementation of the mandatory reservation provided under Sections 12(1)(b) and 12(1)(c) of the RTE Act is a violation of the statutory mandate under the RTE Act.
    • Moreover, such non-implementation is also a continuing violation of the fundamental right to free and compulsory education under Article 21A of the Constitution, available to children belonging to weaker and disadvantaged sections.
  18. On Monday the Kerala High Court dismissed the bail plea moved by Pulsar Suni, the prime accused in the 2017 actress assault case, in which Malayalam cine actor Dileep is also an accused. (Sunil NS v State of Kerala)
    • Justice PV Kunjikrishnan passed the order on the bail plea filed by Suni who has been in judicial custody for almost six years in connection with the infamous case when a prominent female actor was abducted, driven around in a car, photographed and sexually assaulted, allegedly at actor Dileep’s behest.
    • The offences charged against the accused persons are under sections 120(b), 109, 342, 366, 354, 354(b), 357, 376(d), 201, 212 with 34 of the Indian Penal Code (IPC) and 66E and 66A of the Information Technology Act (IT Act).
    • the single judge remarked before reserving his verdict on the matter, There are some decisions that say that the gravity of the offences have to be considered as well…. prima facie the evidence of the victim…how brutal it .
  19. On Monday the Punjab and Haryana High Court observed that the right to protest does not give protestors the license to cause difficulty to the public at large.  (Neetu Bajaj vs State of Haryana)
    • A division bench of Justices Augustine George Masih and Vikram Aggarwal ordered the Haryana Police to clear the road connecting Panchkula and Chandigarh, where the Sarpanches had been staging a protest by blocking the entire road since March 2, resulting in inconvenience to citizens, especially those commuting between the two cities for work purposes.
    • the Court observed, Protest by the unions or associations or people is permitted but at the places which have been earmarked for the same. This does not give them a licence to put the general public to inconvenience and cause not only difficulty for the people at large but virtually harassing them in a way leading to putting pressure and forcing the Government to accept their demands.
    • the Court underscored, Permitting law to be taken in hand by a few people is not acceptable.
    • the Court opined, Leniency and refrain to the extent which does not put the general public to peril and inconvenience is understandable. But when associations and organizations and even people at large get together to block any public road, Administration should take immediate steps to not let such a thing to happen which in our considered view, the authorities, in the present case, have failed to take note of leading to the situation which we are faced with.
    • the bench added, Further, it cannot be assumed as to what would be the outcome of the meeting between the protesters and the Chief Minister. If the undertaking as has been given by the Haryana Sarpanches Association is accepted, that would virtually be giving free hand to them to continue blocking one side of the road which cannot be permitted.
  20. On Monday the Kerala High Court refused to interfere with the trial court’s decision to frame charges against Jollyamma Joseph, also known as Jolly, who is the prime accused in the Koodathayi cyanide murders.  (Jollyamma Joseph @ Jolly v State of Kerala & Anr.)
    • Justice Bechu Kurian Thomas dismissed the plea filed by Jolly challenging the order of the trial court that dismissed her plea to adjourn framing of charges against her.
    • The Koodathayi cyanide murders refer to the mysterious deaths of 6 persons in Kerala’s Koodathayi. All the victims were close relatives of Jolly.
    • Jolly was charged with offences punishable under Sections 110 (abetment if person abetted does act with different intention from that of abettor), 120(B) (criminal conspiracy), 465 (forgery), 467 (Forgery of valuable security, will, etc.), 468 (Forgery for cheating purpose), 471(Using as genuine a fraud document), 475 (Counterfeiting device or mark used for authenticating documents), 302 (murder), 201(Causing disappearance of evidence) with 34 of the Indian Penal Code (IPC) and provisions of the Poison Act, 1919.
    • Before the trial court, Jolly submitted two pleas.
      • First, she moved to get herself discharged from the case. The trial court dismissed the plea and Jolly then moved the High Court with a revision petition challenging the same.
      • During the pendency of the said petition before the High Court, Jolly moved the trial court again with a petition under section 309 of the Code of Criminal Procedure (CrPC) in order to adjourn the framing of the charge till the disposal of the criminal revision petition.
  21. On Monday Justice Amit Sharma of the Delhi High Court took oath as permanent judge.
  22. On Monday the Delhi High Court referred to arbitration a dispute involving Essel Corporate, Zee Enterprises, Siti Networks and Aditya Birla Finance in relation to the dispute regarding Siti’s failure to repay the term loan of ₹150 crores extended by Aditya Birla Finance.
    • Former Supreme Court judge, Justice L Nageswara Rao was appointed the sole arbitrator in the case.
    • the Court ordered, This Court appoints Justice L Nageswara Rao, a former judge of Supreme Court of India, as the sole Arbitrator, who shall adjudicate the disputes between the parties, through claims and counter claims, if any. He shall give his disclosure under Section 12 of the [Arbitration and Conciliation] Act of 1996. The learned arbitrator can fix the fee to conduct arbitration proceedings in consultation with the counsel for the parties.
    • the Court said, The contents of letters being that the respondent Nos.2 (Zee) and 3 (Essel) assures and confirms to respondent No.1 (Siti) that they shall ensure respondent No.1 repays the facility on the relevant due dates, are the statements made in the midst of a commercial transaction; which are also promissory in character and thus enforceable. So, in that sense there was an intention to create a legal relation by the parties as the conduct of the parties is always a guide to the construction of a contract as held by the Supreme Court in the case of The Godhra Electricity Co. Ltd. v. The State of Gujarat & Ors.
    • Till such time the applications are decided by the learned Arbitrator, the orders passed by this Court in this petition from time to time, as noted above, shall continue. It is made clear, the amount deposited by the respondent No.1 in this Court shall continue to be deposited, till the decision of the learned Arbitrator.

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