Weekend Legal Updates

Saturday & Sunday, 19th & 20th March 2022





Article – 267 Contingency Fund

(1) Parliament may by law establish a Contingency Fund in the nature of an imprest to be entitled “the Contingency Fund of India” into which shall be paid from time to time such sums as may be determined by such law, and the said Fund shall be placed at the disposal of the President to enable advances to be made by him out of such Fund for the purposes of meeting unforeseen expenditure pending authorisation of such expenditure by Parliament by law under article 115 or article 116.
(2) The Legislature of a State may by law establish a Contingency Fund in the nature of an imprest to be entitled “the Contingency Fund of the State” into which shall be paid from time to time such sums as may be determined by such law, and the said Fund shall be placed at the disposal of the Governor 1*** of the State to enable advances to be made by him out of such Fund for the purposes of meeting unforeseen expenditure pending authorisation of such expenditure by the Legislature of the State by law under article 205 or article 206.

Weekend Legal Updates:-

  1. The Allahabad High Court reiterated that there is no law that penalises the non-fulfilment of poll promises made by political parties in their election manifesto.  (Khurshidurehman S Rehman v. State Of U P And Another)
    • “It is, thus, clear that the election manifesto promulgated by any political party is a statement of their policy, view, promises and vow during the election, which is not the binding force and the same cannot be implemented through the courts of law. Even there is no penal provision under any statute to bring the political parties within the clutches of enforcement authorities, in case, they fail to fulfil their promises as made in the election manifesto.”
    • The High Court at the outset observed,
      • Invoking the power of Magistrate under Section 156 (3) in a casual manner, without producing sufficient details and material for commission of cognizable offence, is not justifiable in the eye of law.
      • Even in a provision as embodied under Section 123 of The Representation of Peoples Act, 1951 only a candidate or his/her agents has been brought under law for adopting a corrupt practices of election but the aforesaid provision is not made applicable on any political party as a whole,
    • Non-occurrence of any cognizable offence is also one of the paramount condition which averted the courts below from issuing a direction for investigation in exercise of powers under Sections 156 (3) CrPC…do not find any substance in the present writ petition.
  2. On Thursday the Bombay High Court clarified that its order containing guidelines to protect the identities of parties in proceedings under the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, (POSH Act) and Rules did not have larger applicability and was confined to that particular case only.
    • “The directions had to be confined to this particular case. They could not possibly have had any larger or wider applicability for the simple reason that any such Rules of general applicability would have to be approved by the Full Court,”
    • “A single judge hearing a particular matter within his rostered assignment has no authority or jurisdiction to issue any rules binding the entire Court,” 
    • In its September 2021, the Court had issued the following case-specific guidelines, among others:-
      • Titles are to be anonymised in all further affidavits or documents by the parties.
      • None other than Advocate-on-Record with a current vakalatnama would be permitted to inspect pleadings.
      • All hearings will only be in chambers or in-camera through physical hearing. No online or hybrid hearings will be allowed.
      • Order sheets not to have names of parties or witnesses, neither in titles nor in body of the order.
      • Orders/judgments on merits will not be uploaded.
      • Parties, advocates are “forbidden from disclosing the contents of any order, judgment or filing to the media or publishing any such material in any mode or fashion by any means, including social media, without specific leave of the court”.
      • Any breach of the guidelines by any person, including media, will be considered a contempt of court.
  3. Alleged drug supplier Abdul Kadar Shaikh has approached the Bombay High Court seeking regular bail in the cruise ship drug case in which Aryan Khan is the prime accused.
  4. On Saturday Chief Justice of India NV Ramana opined that arbitration was the best suited dispute resolution mechanism for the globalised world.
    1. He was speaking at the fourth edition of the International Conference on Arbitration in the Era of Globalization.
      • Countries across the world have moved from being protectionist states to open economies,
      • Harmonizing diverse interests while trying to achieve a common goal is a huge challenge,
      • India has entered into similar arrangements with United Kingdom, Singapore, Bangladesh, Malaysia, Trinidad & Tobago, New Zealand and Hong Kong, among others,
      • You can trust the Indian judiciary for its absolute independence and inherent constitutional strength to treat all parties equally.
      • A crucial component of attracting investors is to provide a stable and efficacious mechanism for redressal of disputes. The legislature, executive and judiciary in India, at all levels, are committed to improving the arbitration landscape.
    2. Finally, the judge took note of the fact that promoting a culture of arbitration was not a simple task, and that simply having pro-arbitration jurisprudence was not enough. 
      • Scope for judicial interference from pre-reference stage to challenging an award needs to be minimised.
      • Timelines for completion of arbitral processes should be strictly adhered to.
      • Execution of arbitral awards needs to be ensured.
      • Autonomy of the party should be respected.
      • Mechanism for regulating the arbitral fee has to be in place.
      • Grounds for challenge to the arbitral award should be limited to the bare minimum.
      • Granting of stay on arbitral awards should not become the norm.
      • Emergency awards should be accorded recognition.
      • Focus has to shift to institutional arbitration.
      • To meet the ever increasing demands, more and more arbitration centres should be promoted.
      • Institutional mechanisms need to be promoted to attract the services of eminent panelists and professional arbitrators. It adds to the credibility of the process.
      • New technologies should be put to use while promoting online interface and proceedings.
      • The practical knowledge of the arbitrator will be a key factor and accordingly needs to be given due importance.
      • Robust training programmes need to be created for training young professionals.
  5. On Thursday the Bombay High Court held that a son cannot have a right, title or interest in the flats owned by his parents as long as they are live. (Sonia Fazal Khan & Ors v. Union of India & Ors)
    • n any conceptualization of succession law for any community or faith, Asif (son) can have no right, title or interest whatsoever in either of these flats — one in his father’s name and other in his mother’s name — so long as his parents are alive,
    • The suggestion that Asif has a settled and enforceable share in either of the flats in the lifetimes of the real owners, his parents, is laughable. The fact that he is their son does not make either of their flats ‘a shared household,
    • Asif has no rights in his father’s flats. He has nothing to show that he has ever cared for his father. We reject his contention that his mother has an ‘alternate remedy’. That submission alone shows us Asif’s true nature, his utterly heartless and avaricious approach. His Interim Application is dismissed,
    • any disposal of his share in any immovable property must be for stated and bona fide purposes that are demonstrably in his interest. It is for this reason that we find ourselves unable to grant an open-ended permission in cases like this,
  6. Advocates Harpal Singh Cheema and Harjot Singh Bains have joined Chief Minister Bhagwant Mann’s cabinet in Punjab. Harjot Singh bains is the youngest Ministers in the Mann Cabinet and one of the youngest Cabinet ministers across country.
  7. In this week the Bombay High Court refused to restrain Star India (owner of OTT platform Hotstar) and Netflix from streaming the Bollywood film ’83’ on their respective broadcasting portals, while upholding the exploitation rights of Reliance Entertainment Studios.  (Mad Man Film Ventures Pvt Ltd v. Reliance Entertainment Studios Pvt Ltd & Ors)
  8. On Saturday the Supreme Court’s Justice L Nageswara Rao stressed on the need to establish dedicated courts to expeditiously deal with arbitration disputes, while speaking at the inaugural event of the fourth edition of the international conference on Arbitration in the Era of Globalisation.
    • I am of the personal opinion, even at the domestic arbitration level, there should be dedicated courts at the lower rung as well as High Courts for commercial matters to ensure speedy resolution at the supervisory stage. You also need trained judges. You would see that judges handling various subjects would find it a little difficult to understand a dispute arising out of arbitration. They would treat it as another matter coming from litigation,
    • Dispute resolution will also follow suit. Which is the best way of resolving cross-border disputes. At the study conducted in 2021, more than 90 per cent respondents have preferred international commercial arbitration,
    • A long time back, I attended an arbitration conference in Sydney. During the course of discussions, what not to do in arbitration was with reference to India. But times have changed. Even the dispensation at the executive and parliamentary regime has taken note of the fact that arbitration has to be strengthened for various reasons.
    • Even before the Arbitration and Conciliation Act,1996, by a judgment of the Supreme Court, it was said that so far as enforcement of foreign awards are concerned, courts would interfere only on extraordinary grounds. It was said that you need something more than a violation of law to oppose enforcement of a foreign award…it has been made very clear that enforcement of awards, as when sought for, should not interfere with matters on merits,
    • The recent trend, you would see that the Court has been very supportive of arbitration being a very effective method of ADR. Which not only takes the burden of courts which can spend their valuable time deciding other matters, but also provides an incentive to investors coming to the country and to help businessmen find a faster way.
  9. The Meghalaya High Court has kept State authorities on their toes with several verdicts and remarks coming from the Bench of Chief Justice Sanjib Banerjee. Known for being an outspoken judge, Chief Justice Banerjee has often called out the ineptness of authorities in matters involving larger public interest.
  10. On Sunday a complaint has been registered at Bengaluru’s Vidhana Soudha Police Station in connection with an alleged death threat to the Karnataka High Court’s Chief Justice, judge Ritu Raj Awasthi.
    • the Karnataka government has decided to provide Y-category security to the 3 judges of the Full Bench that delivered the Hijab verdict.
    • The advocates stated that the same targets the legal community and is a open threat to its independence, and therefore action is needed against the culprits to preserve the dignity and majesty of justice administration in Karnataka.
    • Two advocates, Umapathi S and Sudha Katwa, had also written to the Registrar-General in the matter, after the former received a video on WhatsApp purportedly using vulgar language and threatening murder of the Chief Justice in wake of the Hijab verdict.

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