Weekend Legal Updates

Saturday & Sunday, 14th May & 15th May 2022

Legal Awareness :- CONSTITUTION OF INDIA

Part – XIV  SERVICES UNDER THE UNION AND THE STATES

CHAPTER ll – PUBLIC SERVICE COMMISSIONS

Article – 316  Appointment and term of office of members.

  1. The Chairman and other members of a Public Service Commission shall be appointed, in the case of the Union Commission or a Joint Commission, by the President, and in the case of a State Commission, by the Governor of the State
    • Provided that as nearly as may be one-half of the members of every Public Service Commission shall be persons who at the dates of their respective appointments have held office for at least ten years either under the Government of India or under the Government of a State, and in computing the said period of ten years any period before the commencement of this Constitution during which a person has held office under the Crown in India or under the Government of an Indian State shall be included.
    • [(1A) If the office of the Chairman of the Commission becomes vacant or if any such Chairman is by reason of absence or for any other reason unable to perform the duties of his office, those duties shall, until some person appointed under clause (1) to the vacant office has entered on the duties thereof or, as the case may be, until the Chairman has resumed his duties, be performed by such one of the other members of the Commission as the President, in the case of the Union Commission or a Joint Commission, and the Governor of the State in the case of a State Commission, may appoint for the purpose.]
  2. A member of a Public Service Commission shall hold office for a term of six years from the date on which he enters upon his office or until he attains, in the case of the Union Commission, the age of sixty-five years, and in the case of a State Commission or a Joint Commission, the age of [sixty-two years], whichever is earlier:
    • Provided that—
      • (a) a member of a Public Service Commission may, by writing under his hand addressed, in the case of the Union Commission or a Joint Commission, to the President, and in the case of a State Commission, to the Governor of the State, resign his office;
      • (b) a member of a Public Service Commission may be removed from his office in the manner provided in clause (1) or clause (3) of article 317.
  3. A person who holds office as a member of a Public Service Commission shall, on the expiration of his term of office, be ineligible for reappointment to that office.

Weekend Legal Updates :-

  1. The Chhattisgarh High Court held that if a wife insists her husband to get separated from his parents and threatens to implicate him in a false dowry demand case, it would amount to mental cruelty.  (Shailendra Kumar Chandra vs Bharti Chandra)
    • A division bench of Justices Goutam Bhaduri and NK Chandravanshi was hearing a petition filed by a husband challenging the order passed by a Family Court in Korba, date February 21, 2017 by which his plea seeking divorce on the ground of cruelty was rejected.
    • the judges noted, It seems that the wife belongs to higher strata in their society in respect of financial status comparatively than the husband, hence, she wants to live with him but not along with her in-laws. And, therefore, she always creates mental pressure in this regard on him and has threatened also to fasten him in a dowry case.
    • the Court held, In such a lower middle class family, it is the responsibility of the eldest son (as the husband is, in the instant case) to take care of his elderly parents, as he has deposed also in his statement. In such a situation, if wife persistently creates constraints upon husband to get separated from his family and to live with her at her parental house and also threatened him that, otherwise she will implicate him in dowry case, it, itself amounts to mental cruelty on the husband.
    • the bench opined, We have no hesitation to hold that the Family Court was highly unjustified in making such observation. The Family Court has taken the role of a councilor rather than an adjudicator while doing so. It is after much efforts and counseling that a case comes up before the court for adjudication. Then the role of the court is to adjudicate the issue involved in the case based on the evidence after duly appreciating it. The Family Court is not supposed to advice the remedies to the parties or dispose of the case on the probabilities of leading happy marital life in future.
  2. A video of a woman lawyer being assaulted by a man in Karnataka’s Bagalkot has gone viral on social media.
    • the advocate, Sangeeta Shikkeri was attacked by her neighbour, one Mahantesh Cholachagudda over a property dispute.
    • Shikkeri alleged that the reason for the attack was a complaint filed by her against Bagalkot BJP General Secretary Raju Naikar for harassing her over a property dispute.
    • While Mahantesh said that his was assault was not due to provocation by someone, Naikar said that allegations against him are part of political conspiracy and that he had not instigated anyone to assault Shikkeri.
  3. On Friday the Supreme Court observed that the dying declaration of wife under Section 32(1) of the Indian Evidence Act can be used against husband to prove cruelty under Section 498A of the Indian Penal Code (IPC) even if he is acquitted of charges related to her death.  (Surendran v. State of Kerala)
    • A three-Judge Bench of Chief Justice of India NV Ramana, Justices AS Bopanna and Hima Kohli, however, noted that the same is subject to two pre-conditions:
      1. Wife’s cause of death must come into question in the matter.
      2. The prosecution will have to show that the evidence that is sought to be admitted with respect to Section 498A of the IPC must also relate to the circumstances of the transaction of the death.
    • The Supreme Court noted that under Section 32(1) of the Indian Evidence Act 1872, the phrase “cases in which the cause of that person’s death comes into question” is broader than merely referring only to cases where there is a charge of murder, suicide, or dowry death.
    • the Court observed, There have been instances where Courts have used Section 32(1) of the Evidence Act to admit statements in a case where the charge is of a different nature or even in a civil action. This is abundantly clear from the second part of Section 32(1) of the Evidence Act which specifies that such statements are relevant “whatever may be the nature of the proceeding in which the cause of his death comes into question.
    • The wordings of Section 32(1) of the Evidence Act, it appears that the test for admissibility under the said section is not that the evidence to be admitted should directly relate to a charge pertaining to the death of the individual, or that the charge relating to death could not be proved. Rather, the test appears to be that the cause of death must come into question in that case, regardless of the nature of the proceeding, and that the purpose for which such evidence is being sought to be admitted should be a part of the ‘circumstances of the transaction’ relating to the death.
    • the Court held that the judgments in Gananath Pattnaik, Inderpal, Bhairon Singh and Kantilal Martaji Pandor, to the extent it held that the evidence of the deceased cannot be admitted under Section 32(1) of the Evidence Act to prove the charge under Section 498A of the IPC, would stand overruled.
  4. On Sunday Supreme Court judge Justice S Ravindra Bhat said Many branches of law are deployed to harass people and this is a tendency which the society has to address.
    • he said, You are asking me to make a political comment and I’ll refrain from it. I will take a more neutral example- defamation. Do those cases really stick? There are many branches of the law which are deployed. That’s a tendency which we as a society have to address.
    • he added, Your freedoms don’t come free. You have to work for it.
    • Justice Bhat was responding to a question by satirist Akash Banerjee at launch of the book ‘How Gourango lost his O‘
    • Banerjee asked, In your personal opinion, do you think we’ve made a mockery of the sedition law by implementing it in the most ridiculous circumstances.
    • Justice Bhat made it clear, I would not like to make a comment because it is a matter seized of by court and it has political repercussions.
    • he said, I don’t follow tweets. But the point is, you can pick up a fragment of a court conversation and tweet it. Living in an age of perceptions, this can magnify into whatever you want to say. And that would not be a complete picture (of the court proceedings).
    • Live streaming has its positives and it’s darker sides. Some courts have started (live streaming). During Covid, it was very open. If you ask me whether there will be live-streaming- we are looking into it,
    •  he said, There are certain things we have to live with because the remedy can be worse than the disease. PIL was meant to be a channel for those most oppressed. There have been attempts by certain supreme court judgments. But there has to be extreme caution in this. You can’t bind it down by rules, there can only be certain broad guidelines.
    • Are judges aware of public perception towards judiciary?
      • I don’t know if I can speak for the judiciary. We are part of a society and what each institution you get to see is part of a context. If you are saying that the judiciary is not aware of its image, I don’t think that’s correct. You can’t expect judges to clarify. Judges speak through their judgments. Ultimately, you’ve to see the work it does. That is the only thing that matters. Rest is all perception.
    • Judges don’t lead a cushy life
      • The perception is that a judge leads a cushy life. Ask yourself, if you were to argue a matter, for four days. Do you think a judge can decide in a jiffy? The real work begins in the evenings after a judge returns to her chambers.
    • So what made him say ‘yes’ when he was offered judgeship?
      • As a lawyer maybe you can make a difference in one or two cases but as a judge you’ll definitely make a difference in six or seven cases. A man/ woman who wins, wins it 100 percent. That’s what made me say yes.
  5. On Sunday Former Judge of the Orissa High Court, Justice Purna Chandra Mishra, has passed away aged 89.
  6. On Sunday A Thane Court remanded Marathi actor Ketaki Chitale to police custody till May 18, after she was booked by Thane Police for posting derogatory comments on her Facebook account allegedly aimed at Rajya Sabha member and Nationalist Congress Party (NCP) chief Sharad Pawar.
    • The 29-year-old actor had posted a Marathi poem on her Facebook profile attributed to another person, that mentions only surname (Pawar), age (80) and physical ailments which the NCP leader is also suffering from. Chitale had allegedly made disparaging remarks on Pawar’s illness, appearance, voice and also called him corrupt.
  7. The Supreme Court observed that an application of remission or premature release of a convict should be considered in accordance with the policy of the State where the crime is actually committed and not the State where the trial was transferred to and concluded.  (Radeshyam Bhagwandas Shah @ Lala Vakil v. State of Gujarat and Another)
    • the judgment said, Once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be considered including remission or pre­mature release, as the case may be, in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons.
  8. On Friday the Supreme Court held that National Consumer Disputes Redressal Commission (NCDRC) is a ‘tribunal ’ within the meaning of Articles 227 and 136 of the Constitution of India.  (Ibrat Faizan vs Omaxe Buildhome Private Limited)
    • the judgment, The National Commission can be said to be a ‘Tribunal’ which is vested by Statute the powers to determine conclusively the rights of two or more contending parties with regard to any matter in controversy between them. Therefore, as observed hereinabove in the aforesaid decision, it satisfies the test of an authority vested with the judicial powers of the State and therefore may be regarded as a ‘Tribunal’ within the meaning of Article 227 and/or 136 of the Constitution of India.
    • court observed, in a given case, this Court may not exercise its powers under Article 136 of the Constitution of India, in view of the remedy which may be available to the aggrieved party before the concerned High Court under Article 227 of the Constitution of India, as it is appropriate that aggrieved party approaches the concerned High Court by way of writ petition under Article 227 of the Constitution of India.
  9. On Sunday Senior Advocate and Former Advocate General of Kerala, CP Sudhakara Prasad, has passed away aged 81.
  10. Interpretation of tender conditions by authorities cannot be subject to judicial review, the Board of Trustees of the Jawaharlal Nehru Port Authority (JNPA) told the Bombay High Court while seeking dismissal of a petition filed by Adani Ports and Special Economic Zone Limited challenging disqualification of their bid in a tender.  (Adani Ports and Special Economic Zone Limited v. Board of Trustees of Jawaharlal Nehru Port Authority & Ors.)
    • the affidavit said, The writ court should refrain itself from imposing its decision over the decision of the authority as to whether or not to accept the bid of a tenderer.
    • Clarifying further why Adani Ports was disqualified, the JNPA gave the following reasons:
      • Vishakhapatnam Port Trust, being a public authority, had terminated an agreement executed with an associate company of Adani Group.
      • However, the company had false stated in the declaration form that they had never been terminated from any agreement before.
      • The declaration stipulated that any declaration was discovered to be false, then JNPA had the right to reject a bid at any stage.
  11. The Delhi Commission for Protection of Child Rights has moved the Supreme Court challenging the amendments to the Juvenile Justice (Care and Protection of Children) Act, 2015 by which some serious offences against children, which can carry imprisonment upto 7 years, have been made non-cognizable. (Delhi Commission for Protection of Child Rights vs Union of India)
    • the petition further stated, The different classification of offences under the Juvenile Justice Act, 2015 and the CrPC does not satisfy the requirements of equality before law and equal protection of laws under Articles 14 and 21 of the Constitution of India and hurts the cause of children. Further, the Section is arbitrary both substantively and procedurally as it violates Articles 14 and 21 of the Constitution of India.
    • There is no reasonable justification or rational nexus sought to be achieved by reclassifying the cognizable offences as non-cognizable offences.
    • The amendment has the effect of treating offences committed against children as being less serious that similar offences when they are committed against major and proceed in accordance with the classification of offences under the Code of Criminal Procedure. This is clearly contrary to logic and there can not possibly be any rational explanation for the same. Its consequence is that the police can neither register the FIR nor can investigate or effect the arrest without the order of a judicial magistrate, thereby violating the fundamental right to life and liberty of the children being victim at the hands of the offender.
    • Given the very nature of offences against children and the fact that statistically most offences against children are committed by family members, caregivers, known persons, the fact is that imposing such a requirement will just lead to a situation where the prosecution of such offences is drastically reduced and the provisions of the Act are not as effective as the were prior to the amendment.
  12. The Supreme Court took exception to the a trial court judge in Andhra Pradesh misinterpreting the top court’s order, resulting in an accused remaining in jail despite the apex court granting him interim bail.  (Gopisetty Harikrishna vs State of Andhra Pradesh)
    • court said, This case portrays very sorry state of affairs. We are surprised that a judicial officer had read the order passed by this Court, in the manner as it gets disclosed from his order.
    • the Supreme Court said, The reason was not to put any limitation of a specified period within which time alone the bail could be availed and not thereafter.
    • the order said, We would normally have considered it as defiance of the order passed by this Court but at this stage we rest content by observing that the High Court shall take up the matter on its administrative side; call for an explanation from the concerned presiding officer of the trial court and deal with the matter on the administrative side.
    • the Court clarified, This is not to say that whatever we have observed shall be taken as final determination. The matter shall be dealt with purely on its merits on the administrative side.
    • the order said, Every High Court shall give us details of all such orders which remain to be complied with and about the persons concerned who are still languishing in jail. One of the ways to address the problem would be to have a register and maintain the figures as to in how many matters orders directing release of the persons on bail were issued and if out of such total number of matters, any person stood deprived of the opportunity of being released on bail for some reason or the other. The Register must indicate the reason including whether proper security etc. could be arranged by the concerned person or not. Such matters should then be listed before the concerned court in the succeeding month and the fact that the person has not yet been released on bail, be brought to the notice of the concerned Court under whose orders the relief of bail was afforded to the person(s).
  13. The Bombay High Court at Aurangabad pulled up authorities in the Maharashtra government’s Education Department for its “iniquitous” approach towards students from the tribal communities and for withholding salary of an English teacher.  (Babu Amrutrao Shinde vs State of Maharashtra)
    • A division bench of Justices Ravindra Ghuge and SG Dige was disturbed by the fact that an English subject teacher was compelled to teach mathematics in a Zilla Parishad school and was not paid his salary when he refused to take Math classes.
    • the bench said, We are disturbed by the attitude of the Zilla Parishad. Only because there are vacancies in the schools in tribal areas, that non-subject experts, having no knowledge of particular subjects, cannot be compelled to teach an unknown subject.
    • the order said, The students in the tribal areas are not to be neglected and are to be imparted with good education. We cannot tolerate an iniquitous approach, as if the students in the tribal areas are lesser human beings.
    • the bench held, We are not only astonished by such submissions, but shocked by the wisdom of the Education Officer. We cannot countenance such stand, by which a person teaching English, is directed to teach mathematics, though his transfer order clearly indicates that he has been transferred on a vacant post of an English teacher at the Zilla Parishad High School. This, therefore, indicates a fraud played on the petitioner by the Education Department, Zilla Parishad, Nanded.
    • the order said, Since we are specifically informed that the conduct of the Zilla Parishad is under the advise of the Chief Executive Office, Zilla Parishad, Nanded, we record our utmost displeasure and we direct the Divisional Commissioner, to issue an appropriate ‘strict warning’ memo to the said Chief Executive Officer and to enter the said warning in her service record.
  14. The Delhi High Court expressed concerns over untrained hands and technicians conducting hair transplant and aesthetic surgeries in hair salons in the national capital.  (Azhar Rasheed v State of NCT of Delhi and Ors)
    • the Court said, The public at large needs to be made aware that such hair transplantation procedures/aesthetic surgeries can be fatal at the hands of unqualified professionals, which require strict medical supervision. In case any such medical protocols have not been established for guidance of medical practitioners, the same need to be framed at national level, in view of upcoming aesthetic surgeries and hair transplantation procedures.
    • the Court stated, It appears that in the present case, neither there was informed consent of the deceased, nor the risk involved in the hair transplantation was disclosed to the deceased, which resulted in acute complications finally resulting in the death of the deceased. The case also highlights the issues of medical negligence as well as medical malpractice which continues for want of any check of such Salons by the competent authorities.
  15. On Saturday the Central government notified the appointment of advocate Sachin Singh Rajput as additional judge of Chhattisgarh High Court for a period of two years.
  16. On Saturday the Central government notified the appointment of advocate Shoba Annamma Eapen as additional judge of Kerala High Court for a period of two years.
  17. On Saturday the Central government notified the appointment of three judicial officers as additional judges of the Calcutta High Court for a period of two years.
    1. Ananya Bandyopadhyay
    2. Rai Chattopadhyay
    3. Subhendu Samanta
  18. On Saturday Chief Justice of India (CJI) NV Ramana said quoting poet Raja Basu, Jammu and Kashmir is the confluence of Hinduism, Buddhism and Islam; its plurality should be sustained.
    • the CJI said, As poet Raja Basu, an admirer of Kashmir observed, Jammu and Kashmir is the confluence of three great religions – Hinduism, Buddhism and Islam. It is this confluence which is at the heart of our plurality which needs to be sustained and cherished.
    • he said, I would especially urge the District Judiciary to always keep this in mind. You are at the grassroot level, and are the first contact for the justice seeker with the judicial system. You have a direct link with the people. You must persuade parties to choose ADR mechanisms whenever possible. This will not only help the parties, but also will help in reduction of pendency.
    • Peace shall only prevail, when people’s dignity and rights are recognised and protected.
    • the condition of judicial infrastructure across the country is far from satisfactory. Courts are operating from rented accommodations and under deplorable conditions.
    • I hope that the New Court premises, spread around 1.7 lakh square meters, with an estimated cost of Rs. 310 crores having all modern facilities and amenities, becomes the new norm for construction of future court buildings. I am happy to note that the culture and architecture of this land find reflection in the proposed project.
    • We are in the 21st century’s evolving India. Common people are more aware of their rights here and that’s why the executive and judiciary need to be on the same page.
  19. Last Week the Andhra Pradesh High Court asked the State government to consider exempting temples with an annual income less than ₹5 lakh from making mandatory contributions to the State’s Endowment Department. (Allaparthi Venkata Chalapathi Rao v State of Andhra Pradesh)
  20. The Delhi High Court issued summons to former Union Minister and serving Member of Parliament Maneka Gandhi in a defamation suit by the Indian Veterinary Association claiming that she abused and threatened doctors.
  21. The Aurangabad Bench of the Bombay High Court directed Bajaj Allianz General Insurance Company Limited to compensate over 3.5 lakh farmers from Osmanabad district of Maharashtra after soyabean crop loss due to heavy rainfall in the Kharif season of 2020.  (Prashant Lomate & Anr v. Union of India & Ors and connected pleas)
    • the judgment said, If the said amount is not paid by the insurance company within a period of six (06) weeks from today, the State Government is directed to pay such claim for compensation for post harvest loss caused to the Soyabean crop in Kharip season 2020 to remaining 3,57,287 agriculturists of Osmanabad district within a period of six (06) weeks thereafter.
    • the order stated, The insurance company has acted illegally and arbitrarily. It has already paid large number of similarly situated agriculturists without those agriculturists availing any alternate remedy pursuant to the directions issued by the State Government or otherwise. The alternate remedy in this situation would not be an efficacious alternate remedy.
  22. On Friday the Supreme Court stayed a Patna High Court order that had directed Patna Police to produce Sahara group chairperson Subrata Roy before the court.  (Subrata Roy Sahara vs Pramod Saini anr ors)
    • the Supreme Court order said, We are informed that pursuant to the impugned order, the High Court has issued further orders today, i.e. 13.05.2022, which has the effect of directing the concerned authority in Patna (police) to produce the petitioner before the Court. In terms of this order, we stay the operation of the direction given by the High Court qua the petitioner till the next date of hearing.
    • the order said, It is urged that the private complaint filed by one Naresh Kumar Das, being Complaint Case No.1761/2016, is against accused persons named therein. The petitioner has not been named as an accused. Further, the impugned order has been passed against the petitioner on an application for anticipatory bail filed by Pramod Kumar Saini, who has been named as accused no.4 Issue notice, returnable on 19.05.2022. Dasti, in addition, is permitted. Stay of operation of the impugned judgment and order qua the petitioner herein.

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