Today’s Legal Updates

Monday, 7th March 2022

Legal Awareness :- CONSTITUTION OF INDIA

PART III FUNDAMENTAL RIGHTS

Right to Constitutional Remedies

Article – 33 Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc

Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in
their application to,—
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or
(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c),
be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

Today’s Legal Updates :-

  1. Today the Bombay High Court set aside an order of the Mumbai City Civil Court which had temporarily restrained Future Enterprises from selling its stake in Future Generali to joint-venture Generali Group.
    • Future moved the High Court challenging the order on two grounds:-
      • there was no privity of contract between FEL and IDBI
      • the ex-parte order does not record reasons which are required to be given under Order 39 Rule 3 of Code of Civil Procedure.
  2. Today the Delhi government defended its order prohibiting discounts on liquor, stating before the Delhi High Court that the State cannot be a mute spectator to boot-legging, predatory pricing and efforts by some industry sharks to create a monopolistic market.  (Bhagwati Transformer Corp. and Ors v Government of NCT of Delhi)
    • Mehra contended, “Individuals are also now hoarding liquor and taking it outside Delhi. This cannot be done. Bootlegging at large scale is being done. There are shops whose turnover has increased from 20,000 bottles to over 1,20,000 bottles, a six-fold increase… Where is this consumption? Is this Delhi? This is going to Haryana, Uttar Pradesh, Punjab and Himachal. We have already caught one going to Gujarat,” 
    • Rohatgi argued, “They are saying it is being done in view of Covid. This is laughable. Today every institution is open. There is no question of aggravation of Covid and that is not his function. All these reasons are completely arbitrary and outside his jurisdiction. They militate against my right to discount. He is saying that this is promoting unhealthy market forces. How can that be? He says it is destroying the market? He is not SEBI. Who is he to decide this?!” 
    • “The order says the chances of boot-legging can’t be ruled out. The point is no one has has pointed it out that it is the clandestine sale without paying excise that constitutes bootlegging. How is someone giving discounts and customers buying from store promoting boot-legging,” 
  3. Today in the Bombay High Court the investigating agency has told that Cabinet Minister Nawab Malik has sought to combine multiple causes of action in his Habeas Corpus plea challenging his arrest, remand and custody by Enforcement Directorate (ED) in the money laundering case against him.
    • The other grounds mentioned in ED’s reply are as follows:-
      • Petition seeks to combine three distinct purported causes of action being Habeas Corpus, quashing and release/ bail, which assuming but not admitting, are exist is a clear mis-joinder of causes of action.
      • Since Habeas /corpus is not maintainable, Malik’s arrest is in accordance with PMLA and the subsequent remand of custody is valid.
      • Further since the jurisdiction of the Special PMLA Court is not under challenge, the competent court has exercised its judicial power of remand.
      • Investigation is the prerogative of the agency and it would be the sole domain of the agency as to how to conduct the investigation and who and when to arrest.
      • Attempt to seek release at this stage is nothing but an attempt to seek bail without having to satisfy the twin conditions prescribed under PMLA.
      • A full and fair investigation undertaken by the ED is in the interest of the society at large considering the offence of money laundering affects the society and the national economy.
      • Courts ought not scuttle the investigation at the initial stage where facts are still required to be unearthed.
  4. Today A Special Court under the Protection of Children from Sexual Offences Act (POCSO Act) in Araria, Bihar sentenced an accused person to death for sexual assaulting an 7-year-old child.  (State v. Md Major)
    • “The rape of 7 to 8 years child by a man who is aged about 48 years involves extreme brutality, which has always been regarded as an aggravated form of rape. The victim was subject to inhuman acts of torture and cruelty for the sole motive to commit rape with victim. The rape of the victim who was completely innocent without any provocation clearly falls with the category of rarest of rare cases,” 
    • “the courts are also required to have a change in their outlook, approach, appreciation and attitude, particularly in cases involving crimes against the child and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with cases of crime against a child… in such a case it is thus very difficult to have flawless evidence in a crime against child and forceful intercourse with the child where the accused leaves no evidence so he may escape from the clutches of the law.”
    • While sentencing the accused to death, the Court also directed that the child receive a compensation of ₹10 lakh under Section 357-A (Victim compensation scheme) of the Code of Criminal Procedure and the POCSO Rules, 2019.
  5. Today the Bombay High Court registrar informed the High Court 24 criminal cases pending against Members of Parliament (MPs) and Members of Legislative Assembly (MLAs) from Maharashtra have been stayed by the Bombay High Court and 2 cases have been stayed by Supreme Court as on date.
  6. Today the Delhi High Court has held that the chairperson of the Central Administrative Tribunal (CAT) can transfer a case from one bench to another without giving the parties a chance to file a formal written reply.  (Alapan Bandyopadhyay v Union of India and Ors)
    • “As rightly argued by Mr. (Tushar) Mehta, the power of a Chairman of the Tribunal under Section 25 of the 1985 Act is purely an administrative power to transfer cases from one Bench to another, which can be exercised on an application by any party or even on his own motion in a given case and where the facts and circumstances so warrant… Therefore, it may not be wrong to hold that the administrative powers are akin to the power of the Master of Roster, who alone has the prerogative to constitute the Benches and allocate cases,” 
    • “If this proposition is to be accepted, it would result in a situation where in no case, an O.A. filed by an applicant, who has ceased to be in service, invoking Rule 6(2) at a place of his choice, would be open to transfer to another Bench, by the Chairman. This would make Section 25 redundant and subservient to Rule 6(2), which could not have been the intent of the Legislature while enacting Section 25 of the 1985 Act,” 
    • “This Court finds no infirmity in the exercise of the administrative power, either on the procedural aspects or on the merits. Being purely an administrative power of the Chairman, it is not for this Court to substitute its decision or wisdom for that of the Chairman as no illegality, arbitrariness or infirmity has been found in the decision-making process.”
  7. Today the Ukraine government urged the International Court of Justice (ICJ) at The Hague, Netherlands to indicate provisional measures directing Russia to suspend its military actions in the region.
    • The ICJ was called upon to urgently indicate provisional measures in light of the situation in Ukraine and the irreparable harm that may be caused to the country and its citizens in the wake of Russian President Vladimir Putin’s invasion of his neighbouring country.
    • Professor of International Law at Yale Law University Harold Hongju Koh appealed to the Bench, “What is the point of the UN bodies if they do not act strongly and decisively against transparent aggression? If the Court does not act now, this will not be the last instance of aggression from Putin.”
    • “The ICJ has undeniable authority to act. We ask you to immediately pass the provisional measures order that Ukraine so desperately needs. The whole world is looking at you.”
    • A summary of the arguments made on behalf of the Ukrainian government follows:-
      • Russia would have the world believe that Ukraine launched a war against its own people in Donbass. These are false claims of genocide made by Russia.
      • Russia was desperate to manufacture a casus belli (cause for war). President Vladimir Putin recognised Donetsk People’s Republic and Luhansk People’s Republic, laid the groundwork for ongoing war.
      • Russia is invoking provisions of the Convention on the Prevention and Punishment of the Crime of Genocide as a legal shield to perpetuate atrocities in Ukraine.
      • Ukraine demands good faith implementation of the Genocide Convention. Russia has a duty not to act to prevent genocide, simply because no genocide exists.
      • Russian forces are targeting civilians in Ukraine; urgent situation requires the passing of provisional measures.
      • Mariupol continues to live without water, electricity and heating as the result of the constant shelling. Today it is Mariupol; tomorrow it could be Kharkiv or Kiev.
      • Russia’s actions also have an environmental impact of Ukraine and neighbouring countries. A full scale military operation implies irreversible environmental harm.
      • There is no doubt that unless this Court acts now, irreparable prejudice will be caused to the Ukrainian people until the Court gives it final decision.
      • Neighbouring countries may be destabilised as a result of the humanitarian crisis in Ukraine. The harms already suffered by the Ukrainian people will recur and intensify until Russia has reached its goal, whatever that may be.
      • All three prerequisites for the indication of provisional measures are fulfilled.
      • Whether or not Russia chooses to appear in these proceedings, it should be obligated to follow the measures indicated by the Court.
      • The tragedy being witnessed in the cities of Ukraine was precisely what our modern international legal system was designed to prevent.
  8. Today the Gujarat High Court is set to decide if compensation received towards death of kin in a terrorist attack can be termed as ‘income’ and subject to tax under Income Tax Act.
    • The issue came before the High Court after the Income Tax Department sought to tax the compensation received by a man for the death of his wife who was killed by terrorists in the infamous Pan Am flight hijack of 1986.
    • “Is the revenue department seriously contesting? Something that has been received as compensation, can it be taxed?”
    • The Court eventually framed the following questions of law:-
      • Whether this compensation can be termed as income for the purpose of Income Tax Act?
      • Whether notice issued for assessment under 141 is a nullity?
  9. Today the Bombay High Court directed Ola, Uber and other cab aggregators to apply for a license from the Maharashtra government under the Motor Vehicles (Amendment) Act (Act) and Motor Vehicle Aggregators Guidelines of 2020 (Guidelines) before March 16 this year.  (Savina Crasto v. State of Maharashtra & Ors.)
  10. Today Former National Stock Exchange (NSE) head Chitra Ramkrishna, arrested by the Central Bureau of Investigation (CBI), for allegedly sharing confidential information relating to the NSE, has been remanded to seven-day CBI custody by a Delhi court.  (CBI v. Sanjay Gupta & Ors)
  11. Today the Gujarat High Court ordered that no coercive action should be taken against lawyers in relation to notices issued to them by the Central Goods and Service Tax Department (CGST Department) demanding payment of service tax/ GST.
    • “We take note of order passed by Orissa High Court on March 31, 2021. The matter requires consideration. By way of an ad-interim order, we direct that no coercive action shall be taken against advocates, law firm of advocates including LLPs providing legal service, for non-compliance with any legal requirements under CGST, DGST or IGST,” 
    • “Income Tax Department sends data (to CGST). The Department is not aware whether an individual is a lawyer or not. Large number of lawyers have received such notices,”
  12. Today the National Green Tribunal (NGT) ordered two bottling businesses in Uttar Pradesh responsible for the products of Coca Cola and PepsiCo, to pay a total of about ₹25 crores as environmental compensation for illegal extraction of groundwater.  (Sushil Bhatt vs Moon Beverages Ltd. & Ors.)
    • “We are of the view that PPs (Project Proponents) are responsible for illegal extraction of ground water at least after expiry of NOCs, issued to them by CGWA. They continued to extract ground water without any authority. Further, they are also liable to pay environmental compensation for causing loss to environment by failing to comply the most crucial condition of NOCs, i.e., recharge of water,” 
    • “Time and again, acting in a most callous and defiant mode, CGWA has proceeded in its own way, going to the extent of permitting wholly illegally massive exploitation of ground water, that too, in extremely stressed areas, wholly unconcerned with the consequences,” 
    • “They have also contributed and are responsible for causing damage to environment in causing illegal abstraction of ground water for which it may be held accountable,” 
  13. Today A Mumbai court remanded Maharashtra cabinet minister and Nationalist Congress Party (NCP) leader Nawab Malik to judicial custody till March 21 in the money laundering case registered against him by the Enforcement Directorate (ED).
  14. Today the Supreme Court sought the response of the State of Bihar on a plea challenging the appointment of SK Singhal as Director General of Police (DGP) of the State.  (Narendra Kumar Dhiraj v. State of Bihar)
    • “The respondent no. 1 (State of Bihar) appointed the respondent no. 3 (Singhal) as Director General of Police in complete violation of the Judgment of Prakash Singh Versus Union of India and Ors….The tenure of Director General of Police i.e. respondent no. 3 was fixed for two year ending in the month of December 2022,” 
  15. Today the Delhi High Court dismissed a public interest litigation (PIL) seeking the adoption of virtual hearings as a norm in courts across the capital. (Mujeeb Ur Rehman v. Registrar General, High Court of Delhi)
    • “… we see no reason to entertain the petition mainly for the reason because the High Court is already working on the issue, and the decision is taken by the High Court on administrative side after deliberations with the committees whose members include sitting judges of the Court. The issue involved is being looked into. Also, looking at the prevailing condition of the pandemic, the orders are being modified on the administrative side. Hence we see no reason to entertain the petition at this stage,“
  16. The Bombay High Court will hear on Tuesday at 4 pm a public interest litigation petition seeking stay on the release of the film Kashmir Files.
  17. The Supreme Court will hear on Thursday March 10, the appeal filed by Malayalam news channel Media One challenging the Central government’s decision to revoke the broadcasting license of the channel.
  18. Today the Delhi High Court dismissed the petition filed by former West Bengal Chief Secretary Alapan Bandyopadhyay challenging the order passed by the Principal Bench of the Central Administrative Tribunal (CAT) which transferred a case filed by him from Kolkata to Delhi.  (Alapan Bandyopadhyay v Union of India and Anr)
    • “For the aforesaid reasons, this Court finds no reason to interfere with the aforesaid order. The petition is dismissed. It is made clear that the Court has made no comments on the disciplinary proceedings, including the competence of the Central government to initiate such proceedings,” 
    • “The petitioner is the former Chief Secretary to the Government of West Bengal and retired on 31st May, 2021. The petitioner ordinarily and permanently resides in Kolkata. Therefore, the petitioner had an unqualified right under Rule 6(2) of the Central Administrative Tribunal (Procedure) Rules, 1987 to file the Original Application before the Kolkata Bench. Further, the entire cause of action in respect of the Original Application as well as the underlying disciplinary proceedings against the Petitioner occurred within the jurisdiction of the Kolkata Bench,”
    • “Section 25 refers to the power of the Chairman to transfer cases from one bench to another. The powers are very wide. The Chairman has the power to transfer cases from one bench to any other bench. This is a master of roster power and held to be administrative by the Supreme Court,” 
  19. Today the Supreme Court held that the physical nature of the material is not relevant to determine whether the contents of the sample analysed were actually opium or not. (Sukhdev Singh v. State of Punjab)

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