Legal Updates : 7th Oct 2022

Today Legal Updates

Friday, 7th October 2022

Legal Awareness :- CONSTITUTION OF INDIA

Part – Vl THE STATES

CHAPTER- II  THE EXECUTIVE

The Governor

Article – 153 Governors of States 

There shall be a Governor for each State: Provided that nothing in this article shall prevent the appointment of the same person as Governor for two or more States.

Article – 154 Executive power of State

1. The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
2. Nothing in this article shall—
   • (a) be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or
   • (b) prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.

Today’s Legal Updates :-

1. Gauri Rasgotra is leaving Cyril Amarchand Mangaldas Litigation Partner and Deputy Head of the Delhi office and the firm to set up a boutique law firm.
2. On Friday the Delhi High Court issued notice to National Investigation Agency (NIA) on a petition by a Popular Front of India (PFI) activist Mohammad Yusuf demanding a copy of the first information report (FIR) in the case in which he has been arrested.
   • The accused has been charged with criminal conspiracy, promoting enmity between groups and several provisions of the Unlawful Activities Prevention Act (UAPA).
   • The plea stated that though an application was filed before the Additional Sessions Judge (ASJ) when he was produced before him but the application was denied by the court on the grounds that the matter is of a sensitive nature and that providing a copy of the FIR would hamper the investigation.
3. On the Friday the Bombay High Court sought the response of the Central government on a plea challenging the constitutional validity of the Motor Vehicles (Amendment) Act, 2019 and the Rules made under the same.
   • the petition filed through advocate Yatin Malvankar stated, The bills limiting liability of insurance companies and imposing limitation in filing the claims by the accident victims, as the same was about to bring a draconian effect over the families of road accident victims.
   • the plea stated, Hence amended act is putting restriction on the right of the victim to get a fair and just compensation. It will be a violation of right to life of the victims of the accident.
4. On Friday the Karnataka High Court refused to quash a cheating case filed against a woman who took sums of money from a man she met on dating app Tinder while representing herself as a wellness therapist. (Sanjana Fernades @ Raveera v. State of Karnataka)
   • The chats would reveal that the petitioner had initially represented that she is a wellness therapist and her team would take care of the complainant. Therefore, without having any team or any qualification whatsoever, it was the web page prima facie created to lure the complainant and the like. It is therefore, the offence of cheating comes clearly made out against the petitioner.
   • t is in public domain that there are huge mushrooming of so called therapies and therapists on social media i.e., Instagram, twitter or Facebook as the case would be, wherein therapists pose themselves to be in the field of any therapy. It is also in public domain that they are all pseudo-therapists who are “Instagram influencers.
   • The present case concerns psychosomatic therapy or the wellness therapy. Therapists of the kind, are many in number on social media, in reality, they are not bound by any ethics or not regulated by any norms. Cases of this nature have begun to emerge in large proportions where people wanting to get some therapy fall prey to such pseudo-therapists. Therefore, it is time that the Government comes up with some regulatory measure to check the growth of such therapists.
   • the order, There is no document or rather is an admitted fact that the petitioner has no qualification to be in the field of any kind of wellness therapy as projected. It is her own generated web page, without any qualification. Therefore it is a case where the petitioner without any substance or qualification lured the customers into the web of wellness therapy through the web page.
5. On Friday the Bombay High Court held, A woman cannot be forced to give birth to a child since her right to reproductive choice is an inseparable part of her personal liberty under Article 21. (undlik Yevatkar vs Ujwala @ Shubhangi Yevatkar)
   • the Court stated, It is well settled that the right of a woman to have reproductive choice is an insegregable part of her personal liberty as envisaged under Article 21 of the Constitution of India. Admittedly, she cannot be forced to give birth to a child.
6. The 100th lawyers’ roundtable at the Oberoi Hotel, witnessed a conversation between former Chief Justice of India MN Venkatachaliah and Aditya Vikram Bhat, Senior Partner, AZB & Partners and Mysore Prasanna
7. On Friday the  Madras High Court directed the Tamil Nadu government to enquire into the affairs of a Madurai temple that has been closed for over a decade owing to a dispute between two private parties.  (K Seeni Thevar v. The Joint Commissioner and others)
   • the Court said in its order, n the light of the fact that the worshipping of a god is a right of every individual according to his personal faith, it would be appropriate to direct the first respondent (Department) herein to conduct an enquiry into the affairs of the temple under the provisions of the HR & CE Act [The Tamil Nadu Hindu Religious and Charitable Endowments Act], and decide the rights of the parties in accordance with law as expeditiously as possible.
8. On Friday the Kerala government told the Kerala High Court that pandals erected by protestors are obstructing the ingress and egress to the construction site of the Adani Group’s Vizhinjam International Transhipment Deepwater Multipurpose Seaport in Thiruvananthapuram.  (M/s Adani Vizhinjam Port Pvt. Ltd. & Ors. v Dr. VP Joy & Ors.)
   • The Court had made it clear that while the protest can continue peacefully and lawfully, it cannot extend to obstructing ingress and egress of the petitioners, its subcontractors, employees or officials to and from the project site, or obstruct the activities of the project without any authority of law.
   • Adani Ports and Howe Engineering were represented by Senior Advocates S Sreekumar and G Sreekumar respectively along with advocates Roshen D Alexander, Tina Alex Thomas and Harimohan.
9. On Friday the Gujarat High Court took note of the unhygienic conditions prevailing in almost all the crematoriums and burial grounds across the State and ordered the State government and the Ahmedabad Municipal Corporation (AMC) to come up with a scheme to maintain proper hygiene.
   • Chief Justice Kumar said, Have you seen the unhygienic conditions in the crematoriums? Almost every crematorium is unhygienic. This isn’t the situation only in this State but in fact in entire country. We think the State government and also the municipal corporation must do something about it. Come up with some policy on this.
   • the bench said, In some countries, you would think you have entered some beautiful botanical garden. It should be something of this sort. Just think of the fact that these (crematoriums) are places where one sees off the departed soul for last time yet there is no hygiene. Please do something.
   • the bench underscored, You (authorities) will have to ensure that you come up with something unique. Every other state must follow your policy on this. Everyone should say that we should follow the Gujarat Model.
   •  the Chief Justice remarked, We believe the NGOs will do a better job.
10. On Friday Bombay High Court asked the National Company Law Tribunal, Mumbai (NCLT) to hear the applications filed by Yes Bank seeking directions to DishTV to convene an extra-ordinary general meeting (EGM) on 3rd November.
    • Yes Bank, the largest shareholder of DishTV, had approached the NCLT under Section 98 of the Companies Act to convene an EGM. This application had been pending for over a year.
    • It was Yes Bank’s case that DishTV’s Board had been acting in a manner prejudicial to the interests of its significant shareholders. Thus, Yes Bank requisitioned an EGM in September 2021 for reconstitution of the Board.
    • The meetings also indicated that a majority of the members have lost all confidence and trust in the present Board, Yes Bank stated.
11. On Friday A Varanasi court deferred its order in the plea by Hindu parties seeking directions to the Archaeological Survey of India (ASI) to conduct a scientific investigation to ascertain whether the object found during the survey of the Gyanvapi Mosque premises is a Shivalinga or a fountain. (Smt. Rakhi Singh v State of UP)
    • District Judge Dr. AK Vishvesha posted the matter for October 11, 2022 when he is likely to pronounce order after hearing the Mosque Committee, which had sought time to respond to the following two clarifications raised by the Court:
      • Whether the Shiva Linga (reported to be found) inside the Gyanvapi Mosque premises is a part of suit property or not?
      • Does the court have power to direct ‘scientific investigation’ of the alleged structure?
    • the application said, That for proper adjudication of the case it is necessary that a scientific investigation be made regarding the length, width, height, age, make up and constituents of the Shivalingam.
    • The Gyanvapi dispute started when Hindu devotees approached a civil court claiming the right to worship inside the premises of the Gyanvapi Mosque, on the ground that it was a Hindu temple and still houses Hindu deities.
12. The Central government has constituted a three-member commission headed by former Chief Justice of India (CJI) KG Balakrishnan to examine whether Scheduled Caste (SC) status can be accorded to new persons who claim to have historically belonged to SC community but have converted to other religions.
    • Besides Justice Balakrishnan, who will be the chairperson, the commission will include the following members:
      • Dr. Ravinder Kumar Jain, IAS (Retd) as Member
      • Prof. (Dr.) Sushma Yadav, UCG as Member
    • The terms of reference of the Commission are as follows:
      • (i) to examine the matter of according Scheduled Caste status to new persons, who claim to historically have belonged to the Scheduled Castes, but have converted to religion other than those mentioned in the Presidential Orders issued from time to time under article 341 of the Constitution;
      • (ii) to examine the implications on the existing Scheduled Castes, of adding such new persons as part of the existing list of Scheduled Castes;
      • (iii) to examine the changes Scheduled Caste persons go through on converting to other religions in terms of their customs, traditions, social and other status discrimination and deprivation, and the implication of the same on the question of giving them Scheduled Caste status;
      • (iv) to examine any other related questions that the Commission deems appropriate, in consultation with and with the consent of the Central Government.
13. On Friday the Supreme Court acquitted a man who was sentenced to death by Sessions Court and Allahabad High Court for rape and murder of a six-year-old girl. (Chotkau v State of UP)
    • the top court held, By fixing culpability upon the appellant without any shred of evidence which will stand the scrutiny, the prosecution has done injustice to the appellant. Court cannot make someone, a victim of injustice, to compensate for the injustice to the victim of a crime.
    • the judgment said, Court cannot make someone, a victim of injustice to compensate for the injustice to the victim of a crime.
    • the Court added, While every delay in forwarding the FIR may not necessarily be fatal to the case of the prosecution, Courts may be duty bound to see the effect of such delay on the investigation and even the creditworthiness of the investigation.
    • the bench said, The failure of the prosecution to produce such evidence, despite there being no obstacle from the accused or anyone, will certainly create a gaping hole in the case of the prosecution and give rise to a serious doubt on the case of the prosecution.
    • the Court added, When the offence is heinous, the Court is required to put the material evidence under a higher scrutiny.
    • After his repeated requests to the Court of District and Sessions Judge, the service of an advocate was provided as amicus. In cases of such nature, the responsibility of the Court becomes more onerous.
    • the bench ordered, The appellant shall be released forthwith if not wanted in connection with any other case.
14. On Friday the Kerala High Court observed that a strict view must be taken of defection of elected representatives from political parties in order to sustain the faith of the citizens in the democratic setup of conducting elections, and their confidence in the candidates elected by the electorate.  (Sheeba George v The State Election Commission of Kerala & Ors.)
    • the Court said in its order, In our considered opinion, insofar as the law relating to defection in regard to the elected members of the local body is concerned, it is made with the intention of upholding the constitutional principles, the democratic setup, and the rule of law prevailing in the country. This we say because, in order to sustain the faith of the citizens in the democratic setup of conducting elections, and for retaining and sustaining the confidence of the citizens in the candidates elected by the electorate, a strict view is to be adopted in the matter of defection.
    • the order, the Tenth Schedule was brought in to cure the evil of defection recognizing the significant impact it has on the health of our democracy, and that the 91st Constitutional Amendment also strengthens the aforesaid view that the law needed further strengthening in order to curb the evil of defection. In our view, the said proposition would equally, or with more force apply to the laws relating to the defection in the local bodies.
    • the order, In that view of the matter, when a declaration was made by the appellant, an independent candidate who won the election without support of a coalition or of a political party, as if to appear that she has contested as an independent member with the support of a political party/coalition, and the Secretary of the Grama Panchayat registered so in the statutory register; it is clear that the petitioner has violated the requirements of law; which is a clear proof to show that the appellant has joined the CPI(M)/LDF coalition in terms of the provisions of the Act and the Rules, and contested and won the election to the post of Vice President as a candidate fielded by the said political party/ coalition.
15. On Friday the Supreme Court held that if a person enters into a transaction which is surely likely to result in loss, he cannot be accused of insider trading.  (SEBI v. Abhijit Rajan)
    • It so happened in this case that according to SEBI the closing price of the stock on 03.09.2013 showed favourable position for the respondent and SEBI was able to calculate as though the respondent made a profit. But if a company is likely to gain strength by making a significant change in its policy, the price of its securities is likely to shoot up. Despite such a natural phenomena, if a person sells his stocks without waiting for the market trend to show up, it can only be taken as a sale, devoid of any desire to make unlawful gains, even if it cannot be termed as a distress sale.
    • If a person enters into a transaction which is surely likely to result in loss, he cannot be accused of insider trading. In other words, the actual gain or loss is immaterial, but the motive for making a gain is essential.
    • As a matter of fact, the Tribunal found that the closing price of shares rose, after the disclosure of the information. This shows that the unpublished price sensitive information was such that it was likely to be more beneficial to the shareholders, after the disclosure was made. Any person desirous of indulging in insider trading, would have waited till the information went public, to sell his holdings.
16. The Union Law Minister Kiren Rijiju has written to the incumbent Chief Justice of India (CJI) UU Lalit requesting him to recommend his successor to the top post of the Supreme Court.
    • Article 124(2) of the Constitution outlines the process for appointment of CJI.
    • As per the same, the Union Law Minister has to write to the incumbent Chief Justice of India regarding the same at an appropriate time, which in practice is usually around a month before they demit office.
17. On Friday the Delhi High Court dismissed the plea filed by former Mumbai cop Sachin Waze challenging the sanction given for his prosecution under the Unlawful Activities Prevention Act (UAPA) in relation to the Antilia bomb scare case.
    • the Court ruled, For the aforesaid reasons, this Court is of the considered view that the order passed by Respondent no. 1 granting sanction for prosecution under Section 45 (1) of the Unlawful Activities (Prevention) Act, 1967 would have to be considered along with and in conjunction with investigations and proceedings which it relates to and therefore the courts at Mumbai would have the natural and logical jurisdiction to decide issues challenged in this writ petition.
18. On Friday the Kerala High Court held that objections concerning territorial jurisdiction of trial court should be raised at the earliest, before adducing evidence or examination of witnesses.  (Nishad Mathew v State of Kerala & Ors.)
    • the Court said, It is crystal clear that, when there is no inherent lack of jurisdiction, lack of territorial jurisdiction or ground of irregularity of procedure, an order or a sentence awarded by a competent court could not be set aside unless prejudice is pleaded and proved, which would mean failure of justice. It is also the settled position that the objection regarding the question of territorial jurisdiction must be raised, at the earliest at any rate, before adducing evidence/examination of witnesses in the Court.

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