Weekend Legal Updates

Saturday & Sunday, 21st & 22nd May 2022

Legal Awareness :- CONSTITUTION OF INDIA

Part – XIV  SERVICES UNDER THE UNION AND THE STATES

CHAPTER ll – PUBLIC SERVICE COMMISSIONS

Article – 322 Expenses of Public Service Commissions

The expenses of the Union or a State Public Service Commission, including any salaries, allowances and pensions payable to or in respect of the members or staff of the Commission, shall be charged on the Consolidated Fund of India or, as the case may be, the Consolidated Fund of the State.

Weekend Legal Updates :-

  1. The Meghalaya High Court has asked the State of Meghalaya to put in place proper mechanism and regime to ensure better treatment of animals, particularly those transported or brought to market places and the manner in which they are culled to ensure humane and hygienic conditions are maintained.  (Gau Gyan Foundation v. Union of India & Ors.)
    • A Bench of Chief Justice Sanjib Banerjee and Justice W Diengdoh observed that the State had not set up any mechanism in place as stipulated under the Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules of 2017.
    • the Bench said, It is imperative that a regime be set up in the State to ensure better treatment of animals, particularly those that are transported, those that are brought to any market-place, the manner in which the animals are culled and to ensure humane and hygienic conditions at all stages and places.
    • The Court also asked the State to ensure the following aspects get administrative attention:-
      • more hygienic conditions are followed by meat-sellers (whatever kind of meat they may be selling)
      • meat shops openly displaying torn parts of animals (which is often hideous to look at)
      • roadside selling of meat products without the meat kept in any enclosure despite cooler temperature in most parts of State, the same may not be ideal or advisable.
  2. On Friday the Delhi High Court refused to entertain a public interest litigation (PIL) petition seeking disciplinary action against doctors who go on strike.
    • the Court said in its order, In our view before any action can be taken, it would be necessary for the complainant to first approach the state medical council to make out the specific grievance based on actual errors since it would be for the council to take action against identified doctors who may have gone on strike.
    • The judges added, Reliance placed on mere press reports is not sufficient to take judicial action since the body against whom the action is called for is not defined and identified.
  3. The Supreme Court rejected an appeal filed by the New Okhla Industrial Development Authority (NOIDA) pleading to be declared as a financial creditor in the insolvency of group housing projects. (NOIDA v. Anand Sonbhadra)
    • Therefore, we would find on the whole that the appellant is not the financial lessor under section 5(8)(d) of the IBC. No doubt we would observe that we have arrived at the findings based on the prevailing statutory regime. Needless to say there is always power to amend the provisions which essentially consist of the Indian Accounting Standards in the absence of any rules prescribed under Section 5(8)(d) of the IBC by the Central Government.
    • the Supreme Court primarily dealt with the following provisions of the IBC which were at the centre of the controversy:-
      • Section 5(8) defines ‘financial debt’ as meaning ‘a debt along with interest, if any, which is disbursed against the consideration of time value of money which may include.
      • Section 5 (8) (d) : “the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed.
      • Section 5(8)(f) : “any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing.
    • Regarding Sections 5(8)(d) and 5(8)(f), the Court observed as follows:-
      • Section 5(8)(d) includes only a finance or a capital lease, which is deemed, as such, under the Indian Accounting Standards (IAS). Section 5(8)(f) is a residuary and catch all provision. A lease, which is not a finance or a capital lease under Section 5(8)(d), may create a financial debt within the meaning of Section 5(8)(f), 182 if, on its terms, the Court concludes that it is a transaction, under which, any amount is raised, having the commercial effect of the borrowing.
    • the Court held while dismissing the appeals, All that we are finding, in the facts of this case, is that the lease in question does not fall within the ambit of Section 5(8)(f). This is for the reason that the lessee has not raised any amount from the appellant under the lease, which is a transaction. The raising of the amount, which, according to the appellant, constitutes the financial debt, has not taken place in the form of any flow of funds from the appellant/lessor, in any manner, to the lessee. The mere permission or facility of moratorium, followed by staggered payment in easy installments, cannot lead us to the conclusion that any amount has been raised, under the lease, from the appellant, which is the most important consideration.
  4. The Supreme Court reiterated that the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shifts to the accused.  (Nanjundappa and Another v. State of Karnataka)
    • The Court was hearing an appeal challenging a decision of the Karnataka High Court which had upheld the conviction of the appellants under Section 304-A (causing death by negligence) read with Section 34 (common intention) of the Indian Penal Code (IPC).
    • the Bench observed, We also find difficult to see reason in the submission that telephone wires were able to carry current from an 11 KV high tension line and did not immediately melt. It is even more difficult to assimilate that such current when passed through the television, did not blast the television set and set the entire wiring of the house on fire.
    • Even assuming that the deceased and the Prosecution witnesses who received the shock were wearing slippers at the time of contact causing resistance in the current, 11KV is still too strong and any contact with such a high voltage current in all probability should have left any person who came in contact dead and his/her body charred. For reference standard domestic voltage in India is only around 220V.
    • In case of circumstantial evidence, there is a risk of jumping to conclusions in haste. While evaluating such evidence the jury should bear in mind that inference of guilt should be the only reasonable inference from the facts. In the present case however, the conviction of the accused persons seems wholly unjustified against the weight of the evidence adduced.
    • the conviction of the appellants by the trial court based majorly on the following circumstantial evidence:-
      •  Doctor’s report suggesting that death was due to instantaneous cardiac arrest.
      •  Witnesses stating that they also touched the telephones in their respective houses and felt the presence of electricity and immediately threw away the telephone instruments.
      • Telephone department stating that appellants were on duty and working on that day.
    • For bringing home the guilt of the accused, prosecution has to firstly prove negligence and then establish direct nexus between negligence of the accused and the death of the victim. Perusal of the record reveals that out of various witnesses arrayed by the prosecution, there are no eye witnesses. Any evidence brought on record is merely circumstantial in nature.
  5. The Delhi High Court has granted a permanent injunction in favour of American broadcaster Cable News Network (CNN) restraining two people from using the trademark CNN for their news service on social media platforms.
    • the Court noted, The use of the mark ‘CNN’ is clearly with knowledge of the Plaintiff’s goodwill and reputation, as also, considering that the Defendants, being journalists/persons in the media business, are deemed to be well aware of the reputation of the Plaintiff’s mark and the rights of the Plaintiff in the said mark.
    • The Defendants shall also refrain from posting any tweets or uploading any videos or putting up any content on the internet using the mark/name ‘CNN’.
  6. The Confederation of Alumni for National Law Universities (CAN) Foundation is inviting applications for the third edition of one of its flagship projects, Project Dhananjay.
    • Eligible Candidates:The Applicant must have graduated with a B.A. LL.B. degree (or any other similar 5-year integrated law undergraduate program) from any National Law University in the academic year 2020-21 or any year thereafter.
      • Candidates graduating in June 2022 or thereafter in the year 2022, are also eligible to apply under this Project.
    • The last date for sending the duly filled applications is May 31, 2022 at 5 pm IST.
    • Mode of Application: The application form is to be sent with all the annexures in a scanned PDF format to the official email account of the CAN Foundation in the manner as mentioned on its official website.
  7. The Special Court under the Prevention of Money Laundering Act (PMLA) in Mumbai took cognizance of the chargesheet filed by the Enforcement Directorate (ED) against the Maharashtra Cabinet Minister Nawab Malik in a money laundering case involving underworld don Dawood Ibrahim.
    • Malik in connivance with D­-company members, hatched a criminal conspiracy for usurping the prime property belonging to Mrs. Munira Plumber (complainant). Therefore, the above property usurped by accused (Malik) in connivance with Hasina Parkar and others (D-company), is proceeds of crime under PMLA. The said acquisition of the proceeds of crime is generated from the illegal activities. There is prima facie evidence to indicate that the accused is directly and knowingly involved in money laundering offence, therefore, he is responsible for committing the offence of money laundering and is liable for punishment.
  8. The Allahabad High Court has dismissed three Additional District Judges from service on charges of corruption.
  9. The Supreme Court of India has conferred senior designation on retired High Court judges including Justices Govind Mathur, Ravi K Deshpande, Dama Seshadri Naidu, Vineet Kothari and ZA Haq among others.
  10. On Saturday A Delhi Court granted bail to Delhi University Professor Ratan Lal, who was arrested for his controversial “Shivling” Facebook post related to the ongoing court case on the Gyanvapi Mosque. (State v. Ratan Lal)
  11. On Wednesday the Madras High Court refused to grant bail to a judicial officer’s office assistant who attempted to stab him on being unhappy with a transfer order. (Prakash A v the State)
  12. On Friday the Supreme Court commuted the death sentences of three murder convicts to life imprisonment for a minimum of 25 years after noting that courts must show restraint in balancing public opinion with facts of the case.  (Manoj and ors v. State of Madhya Pradesh)
    • There is urgent need to ensure that mitigating circumstances are considered at the trial stage, to avoid slipping into a retributive response to the brutality of the crime, as is noticeably the situation in a majority of cases reaching the appellate stage.
    • While there is no doubt that this case captured the attention and indignation of the society in Indore, and perhaps the state of Madhya Pradesh, as a cruel crime that raised alarm regarding safety within the community – it must be remembered that public opinion has categorically been held to be neither an objective circumstance relating to crime, nor the criminal, and the courts must exercise judicial restraint and play a balancing role.
    • However, despite over four decades since Bachan Singh there has been little to no policy-driven change, towards formulating a scheme or system that elaborates how mitigating circumstances are to be collected, for the court’s consideration. Scarce information about the accused at the time of sentencing, severely disadvantages the process of considering mitigating circumstances. It is clarified that mere mention of these circumstances by counsel, serve no purpose – rather, they must be connected to the possibility of reformation and assist principled judicial reasoning (as required under S. 235(2) CrPC).
    • The lack of forthcoming information has led to attempts by the courts, to look backwards – sometimes many years after the crime has been committed – to evaluate on the one hand, circumstances that could not have been paused in time, and on the other those which can be captured, but for which there exists no frame of reference from the past, for comparison. This inconsistency in some courts calling for reports, while others fail to – further contributes to our patchwork jurisprudence on capital sentencing, and in turn undermines the equality principle and due process protection in favour of death row convicts.
    • Unfortunately, this is mirrored by the failure to implement prison reforms of a meaningful kind, which has left the process of incarceration and prisons in general, to be a space of limited potential for systemic reformation. The goal of reformative punishment requires systems that actively enable reformation and rehabilitation, as a result of nuanced policy making.
    • The judgment accordingly outlined the following guidelines to be implemented uniformly in matters of conviction of offences that can invite a death sentence:-
      • There is an urgent need to ensure that mitigating circumstances are considered at the trial stage. The trial court must elicit information from the accused and the State, both. The State must – for an offence carrying capital punishment – at the appropriate stage, produce material which is preferably collected beforehand, before the Sessions Court disclosing psychiatric and psychological evaluation of the accused. This would help establish proximity (in terms of timeline), to the accused person’s frame of mind (or mental illness, if any) at the time of committing the crime and the evaluation would provide a baseline for the appellate courts to use for comparison, i.e., to evaluate the progress of the accused towards reformation, achieved during the incarceration period.
      • The State, must in a time-bound manner, collect additional information pertaining to the accused on the following: a) Age b) Early family background (siblings, protection of parents, any history of violence or neglect) c) Present family background (surviving family members, whether married, has children, etc.) d) Type and level of education e) Socio-economic background (including conditions of poverty or deprivation, if any) f) Criminal antecedents (details of offence and whether convicted, sentence served, if any) g) Income and the kind of employment (whether none, or temporary or permanent etc); h) Other factors such as history of unstable social behaviour, or mental or psychological ailment(s), alienation of the individual (with reasons, if any) etc. This information should mandatorily be available to the trial court, at the sentencing stage. The accused too, should be given the same opportunity to produce evidence in rebuttal, towards establishing all mitigating circumstances.
      • Information regarding the accused’s jail conduct and behaviour, work done (if any), activities the accused has involved themselves in, and other related details should be called for in the form of a report from the relevant jail authorities (i.e., probation and welfare officer, superintendent of jail, etc.). If the appeal is heard after a long hiatus from the trial court’s conviction, or High Court’s confirmation, as the case may be – a fresh report (rather than the one used by the previous court) from the jail authorities is recommended, for an more exact and complete understanding of the contemporaneous progress made by the accused, in the time elapsed. The jail authorities must also include a fresh psychiatric and psychological report which will further evidence the reformative progress, and reveal post-conviction mental illness, if any.
    • Swayed by the brutality of the crime and “shock of the collective and judicial conscience”, the High Court affirmed imposition of the death penalty solely on the basis of the aggravating circumstances of the crime, with negligible consideration of mitigating circumstances of the criminal. This is in direct contravention of Bachan Singh.
    • The reports received from the Superintendent of Jail reflect that each of the three accused, have a record of overall good conduct in prison and display inclination to reform. It is evident that they have already, while in prison, taken steps towards bettering their lives and of those around them, which coupled with their young age unequivocally demonstrates that there is in fact, a probability of reform.
  13. On Wednesday the Supreme Court held that in lieu of a Hindu widow’s right to maintenance and by virtue of Section 14(1) of the Hindu Succession Act, 1956, she is entitled to absolute ownership of the property she is being maintained out of. (Munni Devi Alias Nathi Devi v. Rajendra Alias Lallu Lal)
    • the bench held, It is by virtue of Section 14(1) of the Act of 1956, that the Hindu widow’s limited interest gets automatically enlarged into an absolute right, when such property is possessed by her whether acquired before or after the commencement of 1956 Act in lieu of her right to maintenance.
    • Section 14 of the Act states:-
      • 14. Property of a female Hindu to be her absolute property.
      • (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
      • Clause (2) makes it clear that such property would include property acquired by a Hindi woman in lieu of maintenance or arrears of maintenance.
    • The claim of a Hindu widow to be maintained is not an empty formality which is to be exercised as a matter of concession or indulgence, grace or gratis or generosity but is a valuable spiritual and moral right which flows from the spiritual and temporal relationship of the husband an wife.
    • Her pre-existing right to maintenance, coupled with her settled legal possession of the property, would be sufficient to create a presumption that she had a vestige of right or claim in the property, though no document was executed or specific charge was created in her favour recognizing her right to maintenance in the property.
  14. On Wednesday A Kerala court denied anticipatory bail to former Member of Legislative Assembly (MLA) PC George in a case registered against him for making communal remarks.
    • The comments made by the petitioner in the above regard prima facie appear to be of such a nature as to promote disharmony, hatred and ill will between the persons belonging to Muslim community and the followers of two other predominant religions of our State. Needless to say that the contention of the petitioner that offence u/s 153A and 295A are not made out even if the entire allegations levelled against him are admitted, is totally baseless and unacceptable.
  15. On Friday the Supreme Court criticised the Madras High Court for the manner in which dealt with a corruption case lodged against a former State Minister. (SP Velumani v. Arappor Iyakkam and Ors)
    • When the State has not pleaded any specific privilege which bars disclosure of material utilized in the earlier preliminary investigation, there is no good reason for the High Court to have permitted the report to have remained shrouded in a sealed cover.
    • Once the enquiry was completed, the High Court failed to even peruse the said report. Rather, the High Court left the decision completely in the hands of the State Government. Such an approach, as adopted by the High Court in the present matter, cannot be countenanced in law.
    • It is a settled principle that the State cannot blow hot and cold at the same time. When the State Government changed its stand, the High Court neither provided the appellant an opportunity to defend himself, nor sought a reasoned justification from the State for having turned turtle.
    • The Bench thus issued the following directions while disposing the appeal:-
      1. High Court to supply the copy of the preliminary report to the appellant along with other documents.
      2. Writ petitions are restored before the High Court which must be disposed of on their own merit.
      3. Appellant is at liberty to seek appropriate remedy for quashing of FIR before the High Court.
  16. The Supreme Court overruled its 1983 judgment in YV Rangaiah v J Sreenivasa Rao which had held that public posts which fell vacant prior to the amendment of Rules would be governed by old Rules and not by the new Rules.  (State of Himachal Pradesh vs Raj Kumar)
    • the Court said in its judgment, After examining the principle in the context of the constitutional position of services under the State, and having reviewed the decisions that have followed or distinguished Rangaiah in that perspective, we have formulated the legal principles that should govern services under the State. Applying the said principles, we have held that the broad proposition formulated in Rangaiah does not reflect the correct constitutional position.
    • The findings in these judgments, that have a direct bearing on the proposition formulated by Rangaiah are as under:-
      1. There is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose, Rangaiah’s case must be understood in the context of the rules involved therein.
      2. It is now a settled proposition of law that a candidate has a right to be considered in the light of the existed rules, which implies the “rule in force” as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates.
      3. The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior to the amendment of the rules. The employee does not acquire any vested right to being considered for promotion in accordance with the repealed rules in view of the policy decision taken by the Government.
      4. There is no obligation for the Government to make appointments as per the old rules in the event of restructuring of the cadre is intended for efficient working of the unit. The only requirement is that the policy decisions of the Government must be fair and reasonable and must be justified on the touchstone of Article 14.
      5. The principle in Rangaiah need not be applied merely because posts were created, as it is not obligatory for the appointing authority to fill up the posts immediately.
      6. When there is no statutory duty cast upon the State to consider appointments to vacancies that existed prior to the amendment, the State cannot be directed to consider the cases.
    • The Supreme Court said while allowing the appeal, There is no provision in the said rules to enable the Respondents to be considered as per the 1966 Rules. The matter must end here. There is no other right that the three inspectors can claim for such consideration.
  17. District and Sessions judge, Varanasi, Dr Ajaya Krishna Vishvesha will commence hearing in the Gyanvapi case from Monday. (Rakhi Singh vs State of UP)

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