Wednesday, November 6, 2019

The kin of former Chief Minister Farooq Abdullah challenging their alleged house arrest by the State, dismissed - J & K high Court

The Jammu and Kashmir High Court on Tuesday declined to entertain the pleas filed by the kin of former Chief Minister Farooq Abdullah challenging their alleged house arrest by the State.
Justice Ali Mohammad Magrey dismissed the pleas filed by Muzafar Ahmad Shah, Begum Khalida Shah and Dr. Mustaffa Kamal in this regard, opining that their plea involved disputed questions of fact in which case the High Court is not the appropriate forum to approach by way of a writ petition. The order reads,
"... a Writ Court is neither to hold an enquiry into the allegations made in a petition, nor take oral evidence. In writ proceedings, a fact is to be supported and proved by authentic documentary evidence. 
Whereas the petitioners had alleged that they were being unlawfully detained in their houses since September 5, 2019, the State countered the submission on the strength of a communication by the Additional Deputy Commissioner. The said communication stated that neither have the petitioners being placed under house arrest, nor has their liberty been curbed.
In response, the petitioners' counsel had also submitted certain paper clippings to show that the petitioners were in fact under house arrest. However, the Court declined to place reliance on the same, remarking that,
"Press cuttings cannot be relied upon as authentic documentary evidence. Further, a Writ Court cannot hold enquiry into disputed facts."
The Court proceeded to observe that,
"Once facts are disputed, the writ petition is rendered not maintainable. In such circumstances, the only option available to a Writ Court is to dismiss the writ petition, leaving the party concerned free to take recourse to appropriate remedy."
It, therefore, dismissed the petition as not maintainable before the High Court and unnecessary. However, the judge clarified that the parties were free to pursue other appropriate legal remedies available to them.
"In light of the above, this petition is dismissed, as being not maintainable and unnecessary, leaving the petitioner free to take appropriate remedy available to him under law before an appropriate forum."
Farooq Abdullah himself was recently placed under house arrest invoking the Public Safety Act (PSA), following the abrogation of Article 370 of the Constitution.

Wednesday, October 9, 2019

Traffic rule violators can be prosecuted & punished independently under both MV Act and IPC: SC


Emphasising the need to strictly people for violating traffic rules and for causing accidents punish by their rash and negligent driving, the Supreme Court has held that offenders could be tried and punished separately under Motor Vehicles Act and also under stringent Indian Penal Code. 

Setting aside Gauhati high court verdict ruling that the provisions of IPC cannot be invoked against traffic rule violators and they could be punished under MV Act, a bench of Justices Indu Malhotra and Sanjiv Khanna said the ingredients of offences under the both statutes are different and an offender can be tried and punished independently under both statutes. 
It said the principle that MV Act being special law should prevail over the general law has no application in cases of prosecution of offenders in road accidents under the IPC and MV Act. Differentiating between the two laws, the bench said that MV Act is a beneficial legislation whose primary objective is to provide a statutory scheme for compensation of victims of motor vehicle accidents but the IPC, on the other hand, is a punitive and deterrent in nature whose object is to punish offenders for offences committed under the IPC.

The court said that keeping IPC out of traffic rule violation cases would lead to anomalous situation as the accused could be lets off with lightly as offences under MV Act are compoundable in nature and no proceedings would be initiated if the accused pleads guilty and deposits the fine imposed. It also pointed out that there is no provision under the MV Act which separately deals with offences causing death, or grievous hurt. 
“If the IPC gives way to the MV Act, and the provisions of CrPC succumb to the provisions of the MV Act as held by the High Court, then even cases of culpable homicide not amounting to murder, causing death, or grievous hurt, or simple hurt by rash and negligent driving, would become compoundable. Such an interpretation would have the consequence of letting an offender get away with a fine by pleading guilty, without having to face any prosecution for the offence committed,”the bench said. 

“This Court has time and again emphasised on the need to strictly punish offenders responsible for causing motor vehicle accidents. With rapidly increasing motorisation, India is facing an increasing burden of road traffic injuries and fatalities. The financial loss, emotional and social trauma caused to a family on losing a bread winner, or any other member of the family, or incapacitation of the victim cannot be quantified,”it said.

It said that Sections 279, 304 Part II, 304A, 337 and 338 of IPC have been specifically framed to deal with offences like rash and negligent driving resulting in death, or hurt, or grievous hurt and an accused could be prosecuted under both the laws simultaneously. 
“The principle of proportionality between the crime and punishment has to be borne in mind. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. The maximum imprisonment for a first time offence under Chapter XIII of the MV Act, is up to only six months; whereas the maximum imprisonment for a first time offence under the IPC in relation to road traffic offences can go upto 10 years under Section 304 Part II of the IPC. The sentence imposed by the courts should be commensurate with the seriousness of the offence, and should have a deterring effect on wrong doers. The punishment of offenders of motor vehicle accidents under the IPC is stricter and proportionate to the offence committed, as compared with the MV Act,”the bench said. 
“We thus hold that a prosecution, if otherwise maintainable, would lie both under the IPC and the MV Act, since both the statutes operate with full vigour, in their own independent spheres. Even assuming that some of the provisions of the MV Act and IPC are overlapping, it cannot be said that the offences under both the statutes are incompatible,”the bench said.

Sunday, October 6, 2019

Supreme Court has directed the Bihar Police Subordinate Service Commission to conduct their physical tests

"The presence of lady members in the police force, considering the crime against women, is a prime need of the hour. Thus we feel that every endeavor should be made to ensure that there is higher representation of women in the police services," said the bench comprising Justices Sanjay Kishan Kaul and Krishna Murari.

Saturday, September 28, 2019

Maradu flats: Complete demolition in 138 days; pay Rs 25L compensation to owners, directs SC

The Supreme Court Friday directed demolition of flats built on the coastal zone of Kochi's Maradu within 138 days and asked the Kerala government to pay Rs 25 lakh interim compensation to each flat owner within four weeks.

The top court also ordered setting up of a one-member committee of retired high court judge to oversee the demolition and assess total compensation.

A bench comprising justices Arun Mishra and S Ravindra Bhat directed freezing of assets of builders and promoters who were involved in the construction of illegal buildings in the coastal zone areas of Kochi.

The bench further said the government may consider recovering the interim compensation amount from the builders and the promoters.

Kerala Chief Secretary Tom Jose was present at the hearing. The court said his presence would not be required during the next hearing on October 25.

Senior advocate Harish Salve, appearing for the Kerala government, informed the bench that power and water supply were disconnected to the four apartment complexes in Kochi on Thursday.

The apex court said there should be no reason for delay in demolition and gave the example of Kant enclave in Faridabad where illegal structures have been demolished, and modalities of recovering the money from those responsible for such construction has been worked out.

The bench clarified that the court's primary concern was that no construction should have been carried out at the eco-fragile coastal zone and the question was not regarding any individual.

While Salve was making submissions relating to the nitty gritty of demolition exercise that has to be carried out, the bench said, "If you cannot do it, we will think of involving some other outside agency."

Salve said the state government has submitted a plan under which in 138 days the structure would be demolished -- including 90 days for demolition and 38 days for removing of debris.

He said the buildings need to be brought down through implosion and expert agency will be appointed by October 11 to carry out the work.

The apex court on September 23 had said that illegal construction in coastal areas of Kerala is a "colossal loss" to the environment, and had expressed shock over spate of unauthorised structures coming up at Kochi's Maradu.

The top court had said that it appears that the authorities, rather than preventing the violations, were trying to mobilize the public opinion and time has come to hold them responsible for their active connivance in such activities of degrading the environment and violation of the coastal zone regulations.

The apex court had also sought a concrete plan from the Kerala government on the removal of illegal structures.

On May 8, the apex court had directed that these buildings be removed within a month as they were constructed in a notified CRZ, which was part of the tidally-influenced water body in Kerala.

The court had passed the order after taking note of a report of a three-member committee, which said when the buildings were built, the area was already notified as a CRZ and construction was prohibited.

Tuesday, September 24, 2019

Cricket star Warne gets driving ban

FORMER cricketer Shane Warne has been banned from driving for 12 months after racking up six speeding offences in three years.
The Australian spin bowler (pictured) admitted breaking a 40mph limit in a hired Jaguar car in Kensington when he had 15 penalty points on his licence, Wimbledon magistrates heard.
Warne, 50, who was not in court, was clocked at 47mph at 6.29am on a slip road on August 23 last year.

Saturday, September 21, 2019

Man’s death in MRI room: Bombay high court grants interim compensation of Rs 10 lakh to kin

The 
Bombay high court
 on Tuesday granted interim compensation of Rs 10 lakh to the family of a 32-year-old salesman in Mumbai who died last January after being 
sucked into an MRI machine 
at a civic hospital, observing that the “unfortunate incident’’ was prima facie a case of negligence. 

The HC directed the civic body and 
BYL Nair hospital 
, where the death occurred, to pay the amount within six weeks offering some reprieve to the victim's family.


“But for the 
on part of hospital authorities the incident wouldn’t have taken place,’’ said the HC bench of Justices Akil Kureshi and SJ Kathawalla on Tuesday. “Hospitals should take all necessary precautions based on such case. Municipal hospitals are visited by a large number of people, relatives, many from rural areas lacking in awareness. It would be unreasonable to think that they are aware about entering 
 room without metal objects," said Justice Kureshi dictating the order in open court.

The court also directed the family to put the amount in a fixed deposit. The state chief minister's relief fund had released Rs 5 lakh to the family last year, said the Brihanmumbai Municipal Corporation (BMC) counsel Joquim Reis. The FD, the court suggested, is to ensure that the money is secure and grows, after observing that the man, a salesman with a ‘multi brand outlet’ earning Rs 36,000 monthly was the “virtually sole earning member’’ who lived with his aged parents and unmarried sister. “The proof of income is not conclusive,’’ observed the HC, adding that the final compensation amount would be computed after a detailed hearing where his age, income, dependents and future earning capacity would be factored in.
 resident, Rajesh Maru, died after getting pulled into the MRI machine along with an oxygen cylinder he allegedly carried into the room for his ailing relative.

The HC noted the contents of an FIR filed and statements recorded in the case too.

BMC special counsel Joaquim Reis had argued that it was the first incident of its kind and a departmental inquiry was being conducted and the role of four others being probed. He had submitted that a preliminary inquiry, subject to final inquiry, had pointed towards two staff, a ward boy and another, for prima facie negligence.

“As per the employer, its staff was negligent in discharge of duties.The BMC thus cannot avoid its liabilities to pay compensation,’’ said the HC in the interim order.

Saturday, September 14, 2019

Don’t indiscriminately attach bank accounts: Gujarat HC

The Gujarat high court on Friday directed GST officials not to use their powers to attachproperties during tax evasion probes to “harass” businessmen.
The high court observed that attachment of properties, especially bank accountsof businessmen, may damage their business. Hence the power should be used sparingly.

The high court was dealing with cases filed by one Pranit Desai and his six companies after GST officials attached various bank accounts during their investigation into input tax credit fraud to the tune of Rs 43 crore. Desai complained that the attachment was affecting his business badly because he was unable to make transactions since March. He is into manufacturing of refractive lining material.

The issue before the high court was the powers conferred on GST officials under Section 83 of the GST Act. The bench of Justice J B Pardiwala and Justice A C Rao observed that provisional attachment under Section 83 should be made after the assessing officer feels that it is absolutely necessary in the interest of revenue.

The court said, “The power conferred upon the Assessing Authority under Section 83 is very drastic, far-reaching power and that power has to be used sparingly and only on substantive weighty grounds and for valid reasons. To ensure that this power is not misused, no safeguards have been provided in the Section 83…It should not be exercised unless there is sufficient material on record to justify the satisfaction that the assessee is about to dispose of the whole or any part of his property with a view to thwarting the ultimate collection of the demand.”

The court made it clear, “It (attachment) should neither be used as a tool to harass the assessee nor should it be used in a manner which may have an irreversible detrimental effect on the business of the assessee.”

The high court ordered the government to release all bank accounts belonging to Desai and his six companies with the observation, “The attachment of bank accounts and trading assets should be resorted to only as a last resort because, the attachment of the bank accounts of the assessee would paralyse the functions and business of the assessee.”

Friday, September 13, 2019

'Sorry, have lost faith in you': Madras High Court slams Tamil Nadu govt after AIADMK's illegal hoarding kills 23-year-old techie

  • Madras High Court came down heavily on the Tamil Nadu government on Friday after a 23-year-old Chennai woman was killed in an accident after a large flex board fell on her. 
  • The court, which has on previous occasions outlawed the use of large political hoardings along streets, expressed its displeasure on the non-compliance of its order by the ruling party.
  • A hoarding about AIADMK party had come off lose and fallen on Subashree, a software engineer, after which she fell off her two-wheeler and came under a water tanker on Thursday.
A hoarding about AIADMK party had come off lose and fallen on Subashree, a software engineer, after which she fell off her two-wheeler and came under a water tanker on Thursday. The accident took place on the Pallavaram-Thoraipakkam road when the woman, a resident of Chromepet in Chennai, was on her way back home. The victim received serious head injury and was rushed to Kamakshi Hospital where she later passed away.

Sunday, September 1, 2019

Indian-Pakistani lesbian couple get married – with one bride wearing a sari and the other a sherwani

Bianca Maieli and her new wife Saima Ahmad just got married in a wedding that showed ‘love has no boundaries’.
The lesbian couple, respectively from India and Pakistan looked regal on their big day with one wearing a sari and the other a sherwani (groom’s outfit).
Bianca, a Colombian-Indian Christian woman met Saima, a Muslim woman from Pakistan at an event where they live in the U.S.
Some time later, the couple decided to tie the knot in California, wearing two traditional outfits.
South Asian fashion designer Bilal Hussain Kazimov dressed Bianca in a stunning ivory sari, complete with a maang tikka (head jewellery), gold bangles and pearl kadas (bangles).
Saima, on the other hand, opted for a sherwani, traditionally worn by male grooms from South Asia.
They went for similar vibes during their Mehendi too (pre-wedding ceremony).
Saima was also dressed by Bilal and went for a black sherwani with embroidered detail in gold hues and other colours.
She completed the look with a dupatta (scarf) on her side and a moti (read pearl) mala
On their wedding day, there were baraat processions – whereby both sides of the family meet, singing and dancing – and the brides also joined in.
They then exchanged rings and officially got married.
At their Mehendi, they were equally gorgeous, with Bianca wearing a pink lehenga (skirt-top combo) while Saima sported a kurta pyjama (a lighter version of sherwani) which she teamed up with a pink brocade jacket.
News of the couple’s sweet union has been met with wide praise online, with many commending the couple for bringing together two divided nations.
One person wrote: ‘Despite tensions over Kashmir, this marriage is a positive step in strengthening Indo-Pak relationship. Good luck to the couple. Congratulations’. 
While another wrote: ‘How beautiful is love. Indeed there are no boundaries in love.’

Bianca and Saima aren’t the only couple to unite two opposing nations.


Thursday, August 15, 2019

Protests against order for demolition of Guru Ravidas Temple: SC warns of contempt

A three-judge Bench headed by Justice Arun Mishra says SC verdicts can’t be politicised

As many parts of Punjab witnessed protests and bandh organised by Dalit groups against the Supreme Court’s recent order to demolish Guru Ravidas Temple in Delhi, the court on Tuesday warned that it would initiate contempt proceedings against those involved.
“What do you think?...This is a Supreme Court order…You can’t organise protests like this…You can’t politicise our orders,” a three-judge Bench headed by Justice Arun Mishra said after being told that some people were organising protests against the demolition order.

The top court had on April 2 ordered that the premises built on forest land had to be vacated and peaceful possession handed over to the DDA.
However, it was not done and on August 2, a false statement was allegedly made on behalf of office bearers of Guru Ravidas Jayanti Samaroh Samiti that the premises had been vacated.
After being told about it, the top court on August 9 directed the DDA to remove the structure by August 10 and asked the Commissioner of Delhi Police to provide protection for the purpose. 
The Chief Secretary of Delhi was also directed to ensure compliance of its order. 
It had also sought personal presence of office bearers of the Samiti and contempt notices be issued to them, if the order was not complied with.
On Tuesday, the court was told that the structure had been removed but some people were agitating against it in Punjab.
This angered the Bench, which said it would not tolerate such behaviour. 
“Once the Supreme Court has passed the order, you can’t indulge in politics over it…You can’t politicise an order of the Supreme Court,” said Justice Mishra. 
The Bench requested Attorney General KK Venugopal to assist the court on this issue so as to settle the legal issue once for all.
The counsel for the Samiti tried to tell the Bench that the protests had been organised in Punjab and not in Delhi but the Bench wasn’t impressed.
Three days after a Guru Ravidas Temple in Delhi was demolished, Dalit groups in Punjab organised protests against the Supreme Court’s order resulting into the demolition.
There were reports from Jalandhar, Hoshiarpur, Kapurthala and Phagwara that bandh call evoked a good response with shops and commercial establishments remaining closed. 

Wednesday, August 7, 2019

No slaughter of goats and sheep inside flats, houses on Bakrid: Bombay HC

The Bombay high court on Tuesday banned the slaughter of sheep and goats in flats and homes during the forthcoming Eid festivities. 

A division bench of Justice Satyaranjan Dharmadhikari and Justice Gautam Patel restrained the Brihanmumbai Municipal Corporation (BMC) from giving such permissions for slaughter inside flats and houses.


The bench further allowed the corporation to give permission for slaughtering animals in housing societies, but has introduced a rider that approval should not be granted if the society is located within one kilometre walking distance from a community space for slaughtering, including a religious slaughtering space.

"In our view, the requirements of public safety, hygiene and sanitation makes it impossible to accept any policy that permits slaughtering inside individual flats. In a city that is as densely crowded and congested as Mumbai and where typical residential apartments are small, we do not believe it is possible to make effective arrangements for human, hygienic and safe methods of sacrificial slaughter within a residential flat. Many of these flats are homes for the very old or the very young (or both). We believe these concerns override all others," said the judges. "We restrain all slaughtering within residential flats or accommodations," added the judges.

The court has asked BMC to "strictly and stringently maintain all applicable safety, hygienic and public safety norms and requirements and to move expeditiously against all violations."


Saudi Arabia sacks doctors with Pakistani MS/MD degrees, other Arab countries follow suit

Saudi Arabia and a few other Arab countries have rejected Pakistan's MS/MD postgraduate programme, making Pakistani doctors no longer eligible to work in the country, a Dawn report said on Wednesday.
According to the report, the move has left hundreds of highly qualified Pakistani doctors jobless. A lot of them, who are in Saudi Arabia, have been sacked or told to be ready for deportation.
After Saudi Arabia's decision, Qatar, the United Arab Emirates (UAE) and Bahrain followed suit.
The Saudi health ministry reportedly claimed Pakistan's MS (Master of Surgery) and MD (Doctor of Medicine) programmes lacked structured training programme which is a mandatory requirement to hire medics for higher positions.
Termination letters were issued to several doctors by the Saudi Commission for Health Specialties (SCFHS) saying their applications for professional qualification have been rejected as the Pakistani degree is not acceptable according to its regulations, the report said.
The development has worried many senior doctors in Pakistan, one of whom told Dawn that local health authorities will take up the matter with Arab countries.

Monday, July 29, 2019

Fears over Muslim parents withdrawing children from 'non-halal' flu vaccine

Muslim parents are refusing to allow their children to take part in a nationwide flu vaccine drive after the Muslim Council of Britain ruled the treatment was forbidden by Islam.
Public health officials have raised concern over the number of Muslim children expected to be withdrawn from a major programme beginning in schools next month.
For the first time, every healthy child of primary school age in England will be offered a nasal spray vaccine to protect people of all ages from the virus.
But Muslim parents across the country have been told that the Fluenz spray is not permitted because it contains gelatine derived from pigs, which are considered unclean.
In some areas the “vast majority” of Muslim parents have vowed to withdraw their children from the programme, community leaders revealed.
Tonight the Royal Society for Public Health said the situation “added to the risk of major flu outbreaks” and urged the government to offer a halal alternative vaccine acceptable to Muslims.
Since 2013 the nasal spray vaccine has been gradually introduced to healthy children, beginning with youngsters in nursery school. An injectable alternative without gelatine does exist, but is only offered to children at higher risk.
The programme has resulted in a significant reduction in flu cases, and from August the Fluenz spray will be offered to every child between the ages of two and ten.
However Public Health England documents seen by the Telegraph reveal concern that uptake in Muslim areas has already been “significantly lower” than the average.
“Vaccine uptake is significantly and independently associated with increasing deprivation, ethnicity and areas with the largest Muslim populations,” the document says.
Across England, the document adds, the most common reason for refusal given by parents was “vaccine contains porcine gelatine”.
"Religious faith is an important area for public health efforts so that the gap between these populations and baseline groups is minimised further," it says.

Saturday, July 20, 2019

How smugglers sneaked in gold worth Rs 1,300 crore

The Air Intelligence Unit (AIU) of the Customs nabbed an airline employee who attempted to smuggle 24.5 kg of 24-carat pure gold worth Rs 8.2 crore through the Sardar Vallabhbhai Patel International Airport.

The Customs Department this week busted what is estimated to be the biggest single gold smuggling racket in Gujarat. About 4,000 kg of gold worth Rs 1,300 crore is reckoned to have been smuggled through Ahmedabad airport in the past six years. 

Customs officials say this is only the tip of the iceberg and further probe may lead to the rise in the gold booty. The rampant smuggling of gold came to light after Jignesh Savaliya, an airline employee at Sardar Vallabhbhai Patel International Airport (SVPIA) was arrested along with Lokesh, a carrier, a month and a half ago. Savaliya was nabbed by the Air Intelligence Unit (AIU) of the Customs while attempting to smuggle 24.5 kg of 24-carat pure gold worth Rs 8.2 crore through the airport. Lokesh, who flew in on a Fly Dubai flight from the UAE on June 4, had handed over the 22 bars of gold weighing 1kg each and 25 biscuits of 100 grams each to Savaliya. 

Their questioning led to the unfolding of the biggest gold smuggling racket in the state. Customs officials have found Savaliya to be the most important link in the chain. His unrestricted access to the different areas at the airport allowed him to carry out the operation under the very nose of multiple security agencies, including the Customs, CISF, AIU, Bureau of Civil Aviation Security who guard the entry points. Sources said that Savaliya had access in cargo as well as passenger areas – that is not even provided to Customs officials. How they operated Once a message was received that a carrier was on board a particular flight, Savaliya would go on standby on the passenger side of the international terminal, sources said. Once the carrier got out of the aircraft, the exchange would take place immediately and the gold would change hands on the aerobridge itself. Once the exchange was completed, the carrier, acting like any other international passenger, would declare nothing at the Customs desk and exit the airport. 

Meanwhile, Savaliya would exit the aerobridge from its external staircase and go through the cargo bay doors, where he also had access. Investigators are trying to figure out how this happened. Savaliya would evade Customs and would easily pass on the illicit gold to Vijay Raval, who waited outside the airport and transport it to Rutugna Trivedi, the mastermind. Trivedi would then sell it to jewellers in the local Indian market, thus legitimising the booty. Who is involved in the racket Special Public Prosecutor Sudhir K Gupta said, “Six of the 10 accused who were arrested by the Customs have been sent to judicial custody. Financiers Jitendra Rokad and Mehul Bhimani, transporter Vijesh aka Vijay Raval, carriers Divya Bhundiya and Lokesh and airline staffer Jignesh Savaliya were sent to judicial custody on July 16 for 14 days.” 

However, mastermind Rutugna Trivedi, his wife Hina who sent the gold from Dubai, accountant Nita Parmar and carrier Bhargav Tanti are absconding. 

More names are likely to crop as probe proceeds, said officials. With teams sent out to look out for the accused, Customs is working with national agencies to use diplomatic channels in an attempt to get Hina Trivedi deported from the United Arab Emirates. 

 While names of only three carriers have been revealed, there are more than seven in all who ferried the 4,000 kg of gold to India from 2013 to 2019, sources said. Divya Bhundia is accused of having ferried 1,285 kg of gold worth Rs 420 crore in 73 trips from Dubai, Customs officials are still trying to figure out how much gold each of the other six carriers ferried from the UAE. Intelligence failure.
Along with investigation into this smuggling case, two more parallel investigations are underway whose outcomes will establish how the smuggling operation continued for six years. A senior IRS official said, “It is highly unusual for an airline employee, a ground staff member, to be given access to passenger areas as well as cargo areas. The two should not be mixed and still, this was not the case here, which is why they could evade Customs.” On the other hand, an internal evaluation of security lapses and intelligence failures is underway across different forces to find out how no intelligence about this racket went undetected for six years. A senior official said, “We are trying to learn from this failure and assess why no intelligence was developed earlier in this matter.” 

Wednesday, July 17, 2019

SC Order In Karnataka MLAs Case

In the name of maintaining 'constitutional balance', the Court passed an order nullifying the effect of Clause 2(b) of Schedule 10 of the Constitution.

The Supreme Court walked a tight rope to maintain 'constitutional balance' in the Karnataka MLAs' case.
The rebel MLAs wanted their resignations to be accepted fast by the Speaker and pleaded that they should not be forced to attend the House.
The Speaker said that MLAs have already incurred disqualification under Tenth Schedule of the Constitution and urged that the Court cannot direct the Speaker to take decisions within a time frame.
The MLAs raised the concern that decision on resignation is being delayed so as to force them to support the incumbent government in the trust vote, lest they will face disqualification for violating the party whip.
The matter witnessed a marathon hearing, with arguments based on Articles 190, 212 and Tenth Schedule of the Constitution.
On Wednesday(July 17), the bench of CJI Ranjan Gogoi, Justices Deepak Gupta and Aniruddha Bose   Passed an interim   Order giving Speaker as much time as he required to decide on resignations, and permitting the MLAs to stay out of the House proceedings, if they choose to do so, until further orders.
"We also make it clear that until further orders, the 15 members of Assembly ought not to be compelled to participate in the proceedings of the ongoing session of the House and an option should be given to them that they can take part in the said proceedings or to opt to remain out of the same", ordered the Court.
This was passed after the Court observed that "The imperative necessity, at this stage, is to maintain the constitutional balance and the conflicting and competing rights that have been canvassed before us".
The seemingly innocuous portion of the order which says that the MLAs cannot be compelled to attend the house proceedings has potential for a lot of repercussions, especially in view of the trust vote of the Congress-JD(S) government scheduled to take place tomorrow.
It is relevant to note that the Court was conscious of the trust vote tomorrow, as this fact is specifically recorded in the order.

"Such an interim exercise has been prudent in view of certain time frame exercises(s) that is in the offing in the Karnataka Legislative Assembly, particularly, the non-trust motion against the present Government, which we are told is due for being taken up on 18th July, 2019", the bench observed in this regard.
The liberty given by the apex court to dissident legislators will in effect enable them to defy any party whip issued to them to attend the trust vote tomorrow, and thereby to ward off any consequences of disqualification.
As per Clause 2(b) of Schedule 10 of the Constitution, abstaining from voting in House contrary to any direction issued by the political party to which the legislator belongs to will cause disqualification on the ground of defection.
Schedule X of Constitution

2. Disqualification on ground of defection.—(1) Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House—
(a) if he has voluntarily given up his membership of such political party; or
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention
The Supreme Court's order has empowered the legislators to act against Clause 2(b) of Schedule 10. In other words, the order has extinguished the impact of Clause 2(b) of Schedule 10 of the Constitution in this case, depriving the political parties of the power to issue party whips to their members to attend the trust vote session.
Acceptance of resignation a matter of Speaker's discretion.
If one examines the constitutional scheme, it becomes clear that acceptance of resignation by the Speaker is not a matter of right of a legislator. It is the Speaker's discretion.
This is clear from proviso to Article 190(3(b) of the Constitution, which says that the Speaker shall not accept the resignation if he is satisfied that it was not voluntary or genuine.
Article 190(3)
(3) If a member of a House of the Legislature of a State
(a) becomes subject to any of the disqualifications mentioned in clause ( 1 ) or clause ( 2 ) of Article 191; or
(b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be, his seat shall thereupon becomes vacant:

Provided that in the case of any resignation referred to in sub clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation
The Speaker had argued before the Court that the enquiry into resignation is inextricably linked with disqualification proceedings under Schedule 10. The inter-connection between these two proceedings is an issue which the Court said it will consider in detail later.
Anyhow, from the plain text of Constitution, two things follow :
  • Resignation is not a matter of right of an MLA.
  • A political party has power to direct its member to be present in voting in house, and non-compliance of such a direction will lead to the member's disqualification on ground of defection.
That being so, how can a person, who continues to be an MLA with the resignation having not been accepted by the Speaker, claim a right to abstain from House proceedings, particularly in view of Schedule 10?
In the process of maintaining 'constitutional balance', the Court passed an order nullifying the effect of Clause 2(b) of Schedule 10 of the Constitution, enabling the rebel MLAs to escape the consequences of defying party whips.
According to me, the order goes against the spirit of anti-defection laws.