Thursday, June 11, 2020

AGR: "Don't misuse our October 2019 judgment", Supreme Court asks Centre to reconsider demanding dues from PSUs

The Supreme Court today directed the Centre through the Department of Telecommunications (DoT) to reconsider demanding Adjusted Gross Revenue (AGR) dues from Public Sector Undertakings (PSUs).

In the meantime, the telecom companies have been directed to file affidavits to show how they propose to complete the payment of their liabilities towards AGR dues.

Read Order

Thursday, May 21, 2020

No person, be a journalist or otherwise, can claim open access to the precinct of the Parliament: Delhi High Court

The Delhi High Court has stated that no person, be a journalist or otherwise, can claim an open access to the precinct of the Parliament. (Anil Chamadia vs Media Advisory Committee of the Rajya Sabha)


Friday, May 15, 2020

‘No loudspeakers for azaan, only human voice allowed’: UP top court orders


Full Order

The Allahabad High Court has held that azaan, or the Islamic call to ritual prayer, can be recited by a muezzin from minarets of the mosques by human voice only without using any amplifying device or loudspeakers. 

The court added that such recitation by human voice cannot be hindered under the pretext of violation of the guidelines issued by the state government to contain the spread of coronavirus.

It also said that one can’t use a loudspeaker for azaan without prior permission of district administration in accordance with the law. 

“We are of the opinion that azaan may be an essential and integral part of Islam but its recitation through loud­speakers or other sound amplifying devices cannot be said to be an integral part of the religion warranting protection of the fundamental right enshrined under Article 25, which is even otherwise subject to public order, morality or health and to other provisions in part III of the Constitution,” the bench ruled.

It cannot be said that a citizen should be coerced to hear anything which he does not like or which he does not require since it amounts to taking away the fundamental right of other persons,” the bench added. 

However, the court shot down the state government’s contention that its recitation by human voice was violative of any provision of law. 

“The government had not been able to explain as to how the recitation of azaan merely through human voice can be violative of any provision of law or any guidelines issued in view of Covid-19 pandemic,” it said.

The Bench, however, kept it open for petitioner to approach the district administration for permission to use loudspeaker for azaan. It added that one can’t use loudspeakers for azaan or for any other purpose without prior permission of district administration.

The bench of Justices Shashi Kant Gupta and Ajit Kumar thus disposed of a PIL filed by BSP MP from Ghazipur, Afzal Ansari, seeking lifting of ban on azaan from mosques in Ghazipur.


Friday, May 8, 2020

Vizag gas leak incident - Rs 50 Crores with the District Magistrate, Vizag.-NGT

The National Green Tribunal (NGT) has taken suo moto cognizance of the Vizag gas leak incident and has directed the company, LG polymers, to deposit an initial amount of Rs 50 Crores with the District Magistrate, Vizag.
The incident that took place on the intervening night of May 6 and 7 in Visakhapatnam had left as many as 11 dead in and over 100 people hospitalized. About a thousand others have reported sickness following the gas leak. The NGT also observed that the fatalities and the injuries are only likely to increase.
The NGT has issued notice to the Andhra Pradesh State Pollution Control Board, the District Magistrate of Visakhapatnam, the Central Pollution Control Board (CPCB), the Ministry of Environment, Forest & Climate Change, as well as to LG Polymers India Pvt., Limited, from whose plant, the leak occured.
LG polymers has also been directed by the Tribunal to deposit an initial amount of Rs 50 Crores with the District Magistrate of Visakhapatnam. The Tribunal said,
"Having regard to the prima facie material regarding the extent of damage to life, public health and environment, we direct LG Polymers India Pvt., Limited to forthwith deposit an initial amount of Rs. 50 Crore, with the District Magistrate, Vishakhapatnam, which will abide by further orders of this Tribunal. The amount is being fixed having regard to the financial worth of the company and the extent of the damage caused."
The NGT has also constituted a five-member committee to look into the matter and file a report before the Tribunal. The Committee will comprise of the following members:
  • Justice B. Seshasayana Reddy, Former Judge, A.P. High Court; - (Online till he is able to reach Vizag); 
  • Prof. Ch V Rama Chandra Murthy, Former Vice Chancellor, Andhra University, Vizag; 
  • Professor Pulipati King, Head of Chemical Engineering Department, Andhra University, Vizag; 
  • Member Secretary, CPCB (Online, if travel is restricted due to Covid-19);
  • Director, CSIR-Indian Institute of Chemical Technology (Online, if travel is restricted due to Covid-19); 
  • Head, NEERI, Vizag.

UK Court Rejects Fugitive Economic Offender Vijay Mallya's Appeal Against Extradition Order

UK Court Rejects Fugitive Economic Offender Vijay Mallya's Appeal Against Extradition Order

Wednesday, May 6, 2020

Liquor purchase allowed twice a week with a gap of 3 days, Bill should record Aadhaar: Madras HC guidelines for liquor sale amid COVID-19

Limits on alcohol purchase at a time

  • Adding to the prohibition on bulk sales, the Court has said that “not more than two bottles of 750 ml each (including wine, beer etc.) of any one type will be sold to one customer at a time."
  • Those paying through approved online modes may purchase two bottles a day as detailed above.
  • Those without mobile/smart phones or online payment apps can purchase only one bottle a day.
  • The customer cannot make purchase of liquor more than twice a week and with a minimum gap of three days.

Cash payment prohibited unless customer does not have digital pay facilities

  • To avoid unnecessary malpractices of over charging through cash payments and to encourage digital payment, the payment for liquor purchase should be made through approved E-payment applications like RuPay, Bhim, Google Pay etc. which can be made available to all smart phone holders and easily assumed in shops.
  • The Court added “the payment through these banking channels will not only keep a track and check on the sale of liquor, but is also likely to prevent those who do not intend to pay through known and approved sources.”
  • To encourage digital payment and online booking, the Court has also directed that those who book liquor and make the online payment will be permitted to buy up to two bottles of one type of liquor a day.
  • Those who do not make online payments and who do not book orders online, as they may not have such mobile phone facilities, will be allowed to purchase only one bottle of 750ml in a day based on the tokens issued to them.
  • Cash payment is prohibited save for those who do not have mobile facilities to make online payment. This was in view of a submission that there were over 7,000 MRP violations booked by the State in the last ten months.
  • The Court also noted that cash payment would not be a justified course of action in COVID-19 times.
  • The State of Tamil Nadu and the TASMAC authorities have also been directed to consider online methods of liquor sale with online payment, by employing the issuance of online tokens coupled with time slots for purchase. This was suggested as a measure to avoid unnecessary crowding in TASMAC/liquor outlets.

Aadhaar, name, address of purchaser to be recorded in Bill

  • The Bill of sale should include the “name, address and Aadhaar number” of the customer.
  • The Court has added that “if any sale is found to be made in violation of this direction and such fact is brought to the notice of this court, that shop in question will be immediately closed and will not be allowed to be reopened, except by the specific orders of the Court.”
Other directions include the Court's reiteration that bars attached to retail vending shops will not be permitted to function. The entry point to such bars will be closed and sealed. Drinking liquor in public places is prohibited.

Saturday, May 2, 2020

‘Ramayan’ beats GoT to become world’s most viewed TV show

Aired again after over three decades on popular demand as most of the 1.3 billion population in India have been sitting at home since March 25 due to the national lockdown, Ramanand Sagar’s epic “Ramayan” of the late 1980s has set a world record by becoming the highest viewed entertainment program globally. “Rebroadcast of Ramayana on Doordarshan smashes viewership records worldwide, the show becomes most-watched entertainment show in the world with 7.7 crore viewers on 16th of April,” said a tweet of DD National.
With the record of 7.7 crore viewership in a day, Ramanand’s epic show has overtaken the popular “Game Of Thrones” in terms of viewership. The final episode of “Game of Thrones” single-night viewing recorded 1.93 crores tuning in to watch the finale.

105-year-old coop bank’s licence cancelled by RBI

Reserve Bank of India (RBI) has cancelled the licence of the 105-year-old CKP Co-operative Bank with effect from April 30 and has told registrar of cooperative societies to initiate winding up proceedings and appoint a liquidator for it.
The central bank order came after years of effort to get the bank back on rails through the recovery of bad loans. On liquidation, every depositor will be entitled to repayment of deposits up to Rs 5 lakh from Deposit Insurance and Credit Guarantee Corporation (DICGC). This is the first time RBI is triggering the higher deposit insurance limit, which came into effect after the Budget in February 2020.
The bank’s website said its deposits stood at Rs 485 crore as on November 2019, while loans outstanding were Rs 161 crore. It had a negative net worth of Rs 239 crore due to defaults. It had eight branches across Mumbai and Thane and was placed under RBI directions in 2012..
“The bank’s financial position is highly adverse and unsustainable. There is no concrete revival plan or proposal for a merger with another bank. Credible commitment towards revival from the management is not visible,” RBI said. “Hundreds of depositors and shareholders want the bank to be revived. I have been approached by many of them, and we want more time, as the bank can be revived. We plan to approach the authorities, including RBI,” said Vishwash Utagi who is coordinating efforts to rescue the bank.
“The bank cannot pay present and future depositors, thereby not complying with the law,” RBI said. RBI officials said the bank could not be allowed to restart as it did not have minimum required capital adequacy and reserves, and there was no earning potential.
An RBI spokesperson said the bank’s affairs were being conducted in a manner detrimental to public interest and interest of depositors, and the general character of bank management was prejudicial to the interest of depositors and public interest.

Friday, May 1, 2020

Tax Authorities Can't Give Their Own Interpretations To Legislative Provisions On Perception Of Trade Practices : SC

The Supreme Court has observed that tax Administration Authorities cannot give their own interpretation to legislative provisions on the basis of their own perception of trade practices.

Based on this, the court held as illegal the circulars issued by the Rajasthan Commercial Tax department, which stated that goods imported from other states will be regarded as 'constructively delivered' after a reasonable period of lying with the transporter in the imported state.

Observing that the department had no authority to prescribe such cut-off date for termination of inter-state transit, the SC held that there is no concept of 'constructive delivery' of goods under the Central Sales Tax Act, 1956, and that the inter-state movement of goods will terminate only when the actual physical delivery is taken.

The case (Commercial Tax Officer vs M/s Bombay Machinery Store) pertained to the interpretation of Section 6(2) of the Central Sales Tax Act.

READ FULL JUDGEMENT

Thursday, April 30, 2020

Twitter-SC refused to intervene

The Supreme Court refused to intervene in a plea seeking for directions to Twitter for removal of communal hashtags on the social media platform and directed the Petitioner to approach Telangana High Court instead. 





The petition, filed by Advocate Khaja Aijazuddin, avers that hashtags on Twitter, such as #IslamicCoronavirusJihad, #NizumuddinIdiots, #TablighiJamaatVirus and others, which are trending on the social media platform have the ability to insult the religion and may also disturb the communal harmony of the country. 


The Petitioner, being aggrieved by the nature of attaching the religion to the pandemic on Twitter, seeks for directions to put an end to the "illegal trending on the Social Network" and to restrain the sites from carrying messages which might hurt or insult the feelings of a particular community.


A Bench comprising of Chief Justice of India SA Bobde and Justice Aniruddha Bose heard the matter and directed the Petitioner to approach the Telangana High Court for proper adjudication of the issue involved. 


The Petitioner insisted that the Apex Court was equally empowered under the law to adjudicate the issue, however, the Bench did not agree with the submission. 

CJI Bobde remarked, 


"How can the Court stop this? You are saying that people are saying wrong things on Twitter. This is like saying that people are saying wrong things on phone. How can we direct MTNL?"


The Petitioner informed the Bench that he was merely seeking for directions to the platform to drop the hashtags which were inflammatory in nature. 
The Court refused to intervene in the matter and allowed the Petitioner to withdraw the plea with the liberty to approach the Telangana High Court.

Monday, April 27, 2020

SC Upholds The Constitutional Validity Of Rule Empowering RAW To Compulsorily Retire Officers


Read Full Judgment


Taking a strong exception to "improper handling" of the complaint of sexual harassment made by a former employee of the RAW, the Supreme Court on Friday directed the Union of India to pay "constitutional compensation" to the tune of Rs. 1,00,000/- for "impinging upon the Fundamental Rights of the Petitioner".

A bench of Justice AM Khanwilkar and Justice Dinesh Maheshwari noted that the Petitioner was subjected to "insensitive and undignified circumstances" by the organization which constituted an Internal Complaints Committee in accordance with the guidelines laid down in Vishaka and Others v. State of Rajasthan and Others, after a delay of three months.

While the Committee concluded that the allegations of sexual harassment could not be proved, the court observed,

"In the present case, the petitioner had faced exceedingly insensitive and undignified circumstances due to improper handling of her complaint of sexual harassment. Regardless of the outcome of the inquiry into the stated complaint, the fundamental rights of the petitioner had clearly impinged. Taking an overall view of the circumstances, we consider this to be a fit case to award compensation to the petitioner for the stated violation of her right to life and dignity, quantified at Rs.1,00,000/-."

The Petitioner had made complaints of sexual harassment against her seniors, Ashok Chaturvedi, the then Secretary in charge of the organisation and Sunil Uke, the then joint secretary.

She had alleged that the charged officers subjected her to harassment by asking her to join the sex racket running inside the Organisation for securing quicker promotions and upon refusal to oblige, she was subjected to persecution.

The court noted that the Organisation responded to the allegations of sexual harassment after a gap of almost three months by constituting a Complaints Committee which did not consist of a "third party as a representative of an NGO or other body who is familiar with the issue of sexual harassment", as predicted by the guidelines given in Vishaka (supra).

Subsequently, the Committee was re­constituted with the addition of Dr. Tara Kartha, Director, National Security Council Secretariat (NSCS), which ultimately submitted that the allegations of sexual harassment were not proven against Sunil Uke.

During this period, however, the court noted, there were glaring incidents of violation of the fundamental rights of the Petitioner, whose complaints of sexual harassment were met with "procedural ignorance" and "casual attitude" of her seniors in the department.

The bench observed that there were "unwarranted attacks" on the Petitioner's psychological status, clearly in violation of her right to life with dignity.

In these circumstances, the Court recalled,

"The approach of law as regards the cases of sexual harassment at workplace is not confined to cases of the actual commission of acts of harassment, but also covers situations wherein the woman employee is subjected to prejudice, hostility, discriminatory attitude and humiliation in day to day functioning at the workplace."

The bench observed that the scheme of the 2013 Act, Vishaka Guidelines, and Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) predicates that a "non-hostile" working environment is the basic limb of dignified employment.

The present case, the bench averred, is replete with a lack of sensitivity on the part of Secretary (R) qua the complaint of sexual harassment. "To wit, time is taken to process the stated complaint and improper constitution of the first Complaints Committee (intended or unintended) in violation of the Vishaka Guidelines, constitute an appalling conglomeration of undignified treatment and violation of the fundamental rights of the petitioner, more particularly Articles 14 and 21 of the Constitution," it held.

The bench thus ordered the Union of India to compensate the Petitioner, for subjecting her to a hostile work environment, denying timely representation before a Complaints Committee, and violating her right to life with dignity.

"A priori, when inaction or procrastination (intentionally or otherwise) is meted out in response to the attempt of setting the legal machinery in motion, what is put to peril is not just the individual cries for the assistance of law but also the foundational tenets of a society governed by the rule of law, thereby threatening the larger public interests. The denial of timely inquiry and by a competent forum inevitably results in denial of justice and violation of fundamental right," the court held.

However, the Bench has upheld the RAW's order of compulsory retirement passed against the appellant/petitioner.

In this case, the bench was also confronted to decide the Constitutional validity of Rule 135 of the RAW (Recruitment, Cadre and Services) Rules, 1975, which gives power to the Central government to voluntary retire RAW Officers whose identity is exposed or compromised.

While upholding the same, the bench remarked, "Exposure of an intelligence officer could be hazardous not only for the Organisation but also for the officer concerned."

Saturday, April 25, 2020

Notice Sent Under Certificate Of Posting Is Sufficient Where Mode Of Giving Notice Is Not Mentioned : SC




The Supreme Court has reaffirmed that Notice sent under Certificate of Posting is sufficient, where the mode of service is not mentioned.
A bench comprising Justices R Banumathi and Vineet Saran was considering the issue whether a landlord had served proper notice to the tenant for the vacation of premises in accordance with Section 21(1)(a) of the U.P. Urban Building (Regulation of Letting, Rent, and Eviction) Act, 1972.

The Court noted that the section does not provide for a particular mode of service.
"From the perusal of the aforesaid Proviso to the said Section, it is clear that no particular mode of giving notice by the landlord to the tenant has been provided for, meaning thereby that the same could be given orally or in writing; and if in writing, it is not necessary that it should be sent only by registered post. What is required is that "the landlord has given a notice in that behalf to the tenant"

The HC had set aside the release application granted in favour of the landlord on the primary finding that there was no proof of service of notice to the tenant.
In this regard, the SC observed :
"It may be so that mere receipt of notice having been sent under certificate of posting, in itself, may not be sufficient proof of service, but if the same is coupled with other facts and circumstances which go to show that the party had notice, the same could be held to be sufficient service on the party".
This observation was first made by the top court in Sumitra Devi v. Sampuran Singh, (2011) 3 SCC 556. There the Supreme Court had held that notice sent under certificate of posting is sufficient service, and the same may be determined from a case to case basis.
The bench also referred to the decision in in the case of V.S. Krishnan vs. Westfort Hi­Tech Hospitals (2008) 3 SCC 363, which held that service of notice sent under certificate of posting would be sufficient where "there are materials to show that notices were sent, the burden is on the addressee to rebut the statutory presumption
The decision in Ranju vs. Rekha Ghosh (2007) 14 SCC 81 was also referred, which had held that that service of notice sent under certificate of posting was sufficient where the mode of service was not mentioned.
In the present case, the top court was again faced with the issue of proof of service of notice. A bench of Justice R. Banumathi and Justice Vineet Saran was hearing an appeal filed by a landlord, challenging the order of the Allahabad High Court whereby the release application filed by him had been rejected.
In the backdrop, the Appellant-landlord had bought a shop, already in occupation of the Respondent-tenant. Seeking vacation of the same, the Appellant had approached the Prescribed Authority, Lucknow which allowed the release application while observing that the Appellant had complied with Section 21(1)(a) of the Rent Control Act inasmuch as:
(i) release application was filed after the expiry of three years of Sale Deed obtained by the Appellant;
(ii) Appellant had given six months prior notice to the Respondent-tenant.
On the contrary, the High Court held that six months prior notice was not given to the Respondent-tenant, while hearing the appeal against the order of the Prescribed Authority.
Thus, the issue in dispute before the Supreme Court was proof of service of notice.
Findings
The Supreme Court firstly observed that Section 21 of the Rent Control Act does not prescribe any particular mode of giving notice to the tenant.
"From the perusal of the aforesaid Proviso to the said Section, it is clear that no particular mode of giving notice by the landlord to the tenant has been provided for, meaning thereby that the same could be given orally or in writing; and if in writing, it is not necessary that it should be sent only by registered post. What is required is that "the landlord has given a notice in that behalf to the tenant," it observed.
The bench then noted, in terms of the judgment in Sumitra Devi (supra) that Notice sent under Certificate of Posting is sufficient proof of service, and the same depends on the facts of each case.
On an assessment of the facts of the present case, the court noted that Appellant had filed the copy of receipt dated 25.07.2006 of having sent the notice under certificate of posting; whereas, in the year 2007, the Respondent-tenant admitted that the Appellant was his landlord and thereafter filed an application to deposit rent in Court in the year 2007.
On the basis of the chain of events as illustrated above, the court held that the Respondent-tenant "had notice" of the proceedings.
"It may be so that mere receipt of notice having been sent under certificate of posting, in itself, may not be sufficient proof of service, but if the same is coupled with other facts and circumstances which go to show that the party had notice, the same could be held to be sufficient service on the party. In the present case, the law permits the filing of a document (a receipt of under certificate of posting in this case) to be filed along with an affidavit, which has been done so in this case. Further, there was a clear admission of the respondent (tenant) that the appellant was his landlord (for which sale deed had been supplied to the tenant) and subsequent act of the respondent (tenant) depositing the rent under Section 30(1) of the Rent Control Act in the Court and other attending circumstances, as has been considered by the Prescribed Authority, would all clearly go to show that there was sufficient proof of service of notice, which finding of fact has been affirmed by the Appellate Authority, and we see no reason for the Writ Court to have unsettled such concurrent findings of fact," the bench thus held.
Lastly, the court noted that the Appellant faced "comparative hardship" and thus, he was entitled to get the premises vacated.

"The judgment of the Writ Court is set aside and the release application of the appellant (landlord), which was allowed by the Prescribed Authority, and affirmed by the Appellate Authority, stands affirmed. The respondent (tenant) is directed to vacate the premises in question and hand over possession to the appellant (landlord) within six months from today," the Court directed.

Saturday, April 18, 2020

No Construction Allowed In Plots Left For Open Spaces/Gardens In Approved Layout Plans : SC

The Supreme Court has held that open spaces left for garden areas in approved building layout plans cannot be allowed for construction. A bench comprising Justices Mohan M Shantanagoudar and R Subhash Reddy held

Read Full Judgment

Tuesday, March 17, 2020

False Case

The High Court of Punjab and Haryana held that the police authorities are at liberty to proceed against the complainant for lodging a false case of molestation, in accordance with the law.

The single bench of Justice Hari Pal Verma said,
"This Court cannot ignore the fact that the number of times, such like false cases are registered. Had there been no fair investigation, the petitioner, Karan Chawla would have to face trial."

The petition was filed under Section 438 of the Code of Criminal Procedure, 1973 for grant of anticipatory bail to the petitioner in the FIR registered by the police under Sections 376, 354, 511 of IPC.

The FIR was registered on the statement of the prosecutrix with the allegation that she suffered an accident and was brought to the hospital. In the operation room, when the doctor went away after treating her, the prosecutrix alleged that the petitioner came inside the room and started molesting her.

Ruchika Sabharwal, AAG representing the State submitted that the above-said incident was looked into by the police and a Special Investigation Team constituted thereafter for recording the statements of the staff of the hospital.

The SIT had come to the conclusion that no such incident of alleged molestation by the petitioner had taken place and accordingly the police prepared the cancellation report.

The court while looking into the fact that SIT constituted said,
" In view of the fact that SIT constituted in the case has not found anything in the case and thereby, the cancellation report has also been prepared, the present petition is rendered infructuous."

Subsequently, the court dismissed the petition as infructuous and said that there has been no fair investigation and the court cannot ignore the fact the number of times such false cases are registered.

Accordingly, the court held,
"The police authorities are at liberty to proceed against the prosecutrix for lodging a false case of molestation"

Friday, March 13, 2020

Gujarat High Court on Friday registered a suo moto Public Interest Litigation titled "Precautionary Measures In The Wake Of The Pandemic of Corona Virus (COVID-19)

In the wake of COVID 19 pandemic, the Gujarat High Court on Friday registered a suo moto Public Interest Litigation titled "Precautionary Measures In The Wake Of The
Pandemic of Corona Virus (COVID-19)".
A bench comprising Chief Justice Vikram Nath and Justice Ashutosh Shastri said that the suo moto action was taken "to further strengthen the hands of the Government and also to keep a check and control of the said Virus being spread further in the judicial setup of the State".
The Court has issued the following directions :
"(1) The Advisory issued by the Ministry of Health & Family Welfare, Government of India and the Government of Gujarat on the above Pandemic be strictly adhered to and followed in letter and spirit.
(2) In addition to the above, we direct the Government of Gujarat:
(i) to provide temperature guns at the security check to check the temperature of entrants in the Court premises;
(ii) In case any person is found to be having temperature above normal, then, to take necessary steps for further investigation forthwith;
(iii) to take necessary steps for sanitizing the Court building and premises on daily basis by using appropriate formulations.
(3) Following directions are issued to the members of the Bar Association, members of the Registry, staff of the High Court and all other stakeholders to take following
precautions:
i. Public gatherings may be avoided unless unavoidable.
ii. Counsels may discourage litigants from attending Courts.
iii. Absence of parties appearing in person may not entail any adverse orders.
iv. All precautionary measures as advised by the Government may be taken.
v. Handshake greetings may be avoided and greetings may be with folded hands only.
(4) The above directions contained at Sr.No.(3) to be equally applied to all the subordinate courts in the State of Gujarat"

Prisoners have no right to vote, Delhi HC re-affirms constitutional validity of Section 62(5) RP Act

The constitutional validity of Section 62(5) of the Representation of the People Act, 1951, the Delhi High Court has re-affirmed that prisoners have no right to vote. (Praveen Kumar Chaudhary vs Election Commission & Ors)
The judgment was passed by a Division Bench of Chief Justice DN Patel and Justice C Hari Shankar in public interest litigation preferred by one Praveen Kumar Chaudhary.
It was the Petitioner’s contention that Section 62(5) was violative of the basic structure of the Constitution.
The Petitioner argued that under the provision, there was no valid classification between the persons who are in jail and the persons who are on bail or out of jail.
The Petitioner further pointed out that as per the second proviso to Section 62(5), while a person whose name has not been entered in the electoral roll does not cease to be an elector and can also contest the election, he/she cannot cast his/her vote if he/she is in jail.
This type of classification, the Petitioner submitted, was not valid in the eyes of law and was violative of Article 14 of the Constitution of India.
The Election Commission, on the other hand, argued that this issue had already been decided by the Supreme Court in Anukul Chandra Pradhan, Advocate Supreme Court vs. Union of India & Ors (1997).
The Election Commission pointed out that the Supreme Court had noted that Article 14 permitted reasonable classification which had a rational nexus with the object of classification.
Stating that criminalisation of politics was the bane of society and negation of democracy, the Supreme Court had opined the object of free and fair elections and maintenance of law and order were the essence of democracy and upheld the validity of Section 62(5) for making a reasonable classification, the Election Commission further pointed out.
In view of the submissions and the Supreme Court’s decision, the Court reiterated that the right to vote was neither a fundamental right nor a constitutional right.
It said,
“Right to vote is not one of the common law rights but it is a right conferred by a statute. The right to vote is subject to limitation imposed by the statute. The right to vote is the statutory right, the law gives it and the law can take it away.”
Delhi High court
Referring to the classification as a valid classification, the Court added that persons who are out of jail and persons who are in jail are class by themselves.
After perusing a series of other case laws on the issue, the Court opined that Section 62(5) was constitutionally valid.
It said,
“The classification of the persons who are in jail and who are out of jail is a valid classification and it has a reasonable nexus with the objects sought to be achieved ..”
Delhi High court

Tuesday, March 10, 2020

Police officer cannot seize driving licence unless in uniform: Calcutta High Court

"... the duty to produce a licence and certificate of registration only arises under Section 130 of the 1988 Act, Sub-section (1) of which provides that the driver of a motor vehicle in any public place shall on demand by any police officer in uniform produce his licence for examination."
Calcutta High Court

The Court was dealing with a writ petition filed by Suryaneel Das (petitioner) alleging that he was intimidated and threatened by two men dressed in civilian clothes, who seized his driving licence, without the issuance of any temporary authorisation slip.

The petitioner told that Court that while he was talking on the phone, two men came up to him, asked him to disconnect the phone and step out of the car in order to answer some queries.

The men seized his driver's licence, all the while refusing to show any valid ID proofs. On the petitioner's insistence, they gave him a compound slip after the licence was seized. However, this slip did not disclose the identity of the impounding officers either.

In reprimanding the police authorities for their conduct, Justice Sabyasachi Bhattacharyya remarked that,

“....the mala fides of the Sub-Inspector of Police, namely, Biswajit Das, is patent from his action in seizing the driving licence of the petitioner without issuing any acknowledgement which would act as a temporary licence for the petitioner in the first place.”

Calcutta High Court

The Court proceeded to rule in the petitioner's favour, inter alia, given that the police officers had violated the Motor Vehicles Act in seizing the driver's licence while not in uniform. The Court observed,

"... nothing has been disclosed as to the police being in uniform when they seized the driving licence and, as such, there was no duty cast upon the petitioner, who was the driver of the vehicle-in-question, to hand over his licence at all and the seizure of the licence was palpably under coercion on the part of the police officer involved, who was not even in uniform."

The Court also rejection submissions made by the police relying on Section 206 of the Motor Vehicles Act to justify its conduct. This provision allows the seizure of driving licence where it is suspected that the driver may abscond or avoid legal summons, where such person is charged with an offence.

The Court pointed out that even in such a scenario, the police "could at best take resort to Section 177 of the 1988 Act and impose a fine of Rs.100/- as stipulated for a first offence."

The Court further took critical note of a submission that the police in the area had no facility to accept cash or payment by card for any Motor Vehicle Act violation. Observing that the same was inexcusable, the Bench also pointed out that the alternative of seizing driver's licences for violations were disproportionate.

In this case, the High Court also held that there was no prima facie evidence to prove that the police gave an opportunity to the petitioner to pay any fine on the spot.

In view of these observations, the Court held that the seizure and the proceedings against the petitioner were liable to be quashed.

The High Court also cautioned the errant police officer to follow the due process of law in the future.

“Since a police officer is supposed to be a protector of justice, a much higher obligation is expected from the officers of the police than a common citizen with regard to protecting the law by following due process of law.”
Calcutta High Court
The writ petition was disposed of with directions that the police authorities immediately return the driving licence to the petitioner.

The respondent-authorities were represented by Advocates Amal Kumar Sen and Ashima Das. The petitioner appeared party-in-person.

Monday, March 9, 2020

Coronavirus: What you need to know


How do you catch it?
From a sufferer who coughs or sneezes near you. Close contact with a sick person.
Not washing your hands regularly and touching your face after contact with unclean surfaces also raises the risk.
What is ‘close contact’?
The NHS defines it as living in the same house, being in contact with another person’s bodily fluids, talking together for longer than a few minutes or being within 6ft of a person for more than 15 minutes.
How do I know if I have it?
The only sure way is a Medical  test. If you think you need one, call 108.
You can have it without feeling ill. Main symptoms are similar to flu – a cough, high temperature and shortness of breath. Those with flu-like symptoms are not likely to have it if they have not been to a high-risk area or have not had close contact with a confirmed patient.
How to reduce my risks?
Don’t travel to hotspots, such as northern Italy. Avoid contact with sick people.
Good personal hygiene. Wash your hands regularly with soap for at least 20 seconds. Use hand sanitiser as an alternative.
Cover your mouth with a tissue or sleeve when coughing or sneezing. Bin used tissues straight away and wash your hands.
Don’t touch your eyes, nose or mouth.
Do face masks help?
Not really. Experts say masks are better used by infected people to stop them spreading it. Masks can raise the risk if people touch their faces more to adjust them.
How worried should I be?
About 80 per cent of patients experience only mild illness, says the World Health Organization.

Monday, March 2, 2020

Members barred from joining the month-old body under 'One Bar, One Vote' norm of GHCAA

The Gujarat High Court Advocates' Association (GHCAA) has passed a resolution to remove membership of the lawyers who join the newly-formed Ahmedabad NCLT Practitioners Association (ANCLTPA) formed by the other faction. 

ANCLTPA was formed about a month ago. The GHCAA has been objecting the new association which comprises mostly lawyers practicing in the high court and few Chartered Accountants and Company Secretaries. Earlier on February 10, the GHCAA had passed a resolution paving way to open its branch at the NCLT which it sent to the Principal Bench of NCLT at New Delhi and Bar Council of Gujarat (BCG) to get recognition. At the same time, the ANCLTPA has also sent communication to get recognition.

GHCAA will write a letter to the BCG to not give recognition to newly-formed association. "We passed the resolution on February 25 looking at the existing norm of 'One Bar One Vote' under which members of other bars cannot be members of our association," said Yatin Oza, GHCAA president. Oza said, "As part of the resolution passed, we will remove the member and take away member's chamber for joining another association."
Under One Bar One Vote norm, a lawyer can only vote in the bar where he or she is an ordinary member. "As per this norm, one lawyer cannot become member of two associations. Most of the high court lawyers who are also our members are practicing at the NCLT," said Hardik Brahmbhatt, Secretary of the GHCAA.

The resolution passed by the GHCAA reads, "Some advocates who have chosen to become not only electorate but also chosen to become office-bearers of another association stand to lose their membership of GHCAA. Hence it is resolved to request the Chief Justice of High Court of Gujarat to cancel allotment of chambers in their favour."

Saturday, February 29, 2020

Protests can’t infringe rights of others: SC

 The Supreme Court on Friday ruled that one’s right to protest could not infringe upon the rights of others as it upheld the Uttarakhand high court verdict initiating stringent action against lawyers boycotting district court work for years.
Uttarakhand lawyers had moved the SC claiming that the HC verdict violated their fundamental right to free speech to go on strike court work to protest against issues concerning them. They said it was a mode of peaceful representation to express grievances of the lawyer community.

Rejecting the arguments, a bench of Justices Arun Mishra and M R Shah said, “Such a right to freedom of speech cannot be exercised at the cost of litigants and/or at the cost of the justice delivery system as a whole.”

“To go on strike or boycott courts cannot be justified under the guise of right to freedom of speech and expression under Article 19(1)(a) of the Constitution,” the SC bench said.

Advocates in the districts of Dehradun, Haridwar and Udham Singh Nagar have been boycotting court work on Saturdays for the past more than 35 years. The Law Commission had found that between 2012 and 2016, advocates were on strike for 455 days (average 91 days per year) in Dehradun district and 515 days (average 103 days per year) in Haridwar district.

A PIL against the strikes was entertained by the HC, which passed a series of directions on the line of law settled by the apex court banning strikes by lawyers. It also warned of contempt of court proceedings against errant advocates.

The bench also took suo motu cognisance of lawyers resorting to strikes in several parts of the country despite a series of judgments by the SC banning strikes by advocates. “We take suo moto cognisance and issue notices to Bar Council of India and all state bar councils to suggest further course of action and to give concrete suggestions to deal with the problem of strikes/abstaining from work by lawyers,” the bench said and sought responses from BCI and state councils within six weeks.

The court criticised the inaction of BCI and state councils against lawyers indulging in strikes. “The day has now come for the Bar Council of India and bar councils of states to step in and take concrete steps. It is the duty of bar councils to ensure that there is no unprofessional and unbecoming conduct by any lawyer,” it said.

Writing the judgment endorsing the steps taken by the HC against lawyers of three districts of Uttarakhand, Justice Shah said, “We direct all concerned and district bar associations to comply with the directions issued by the high court in its true spirit. It is directed that if it is found that there is any breach of any of the directions issued by the high court in the impugned judgment and order, a serious view shall be taken and the consequences shall follow, including punishment under the Contempt of Courts Act.”

Thursday, February 27, 2020

Saudi bars entry of foreign pilgrims over corona virus

Saudi Arabia on 27/02/2020 banned foreign pilgrims from entering the kingdom to visit Islam’s holiest sites over the new coronavirus, potentially disrupting the plans of millions of faithful ahead of the Muslim fasting month of Ramadan and as the annual hajj pilgrimage looms.
The decision showed the growing worry across the Mideast about the virus as Iran confirmed that infected cases in the country spiked by over 100, to 254 now. A total of 26 people have died so far, it said. That pushes the region’s overall cases to above 350. Iran’s death toll is highest outside of China, where the outbreak began.
Saudi Arabia’s barring of pilgrims from Mecca, home to the cube-shaped Kaaba that the world’s 1.8 billion Muslims pray toward five times a day, and also the holy city of Medina, appeared unprecedented in modern history. The kingdom's Al Saud ruling family stakes its legitimacy in overseeing and protecting the sites. Authorities also suspended entry to travelers from nations affected by the new virus who hold tourist visas for the kingdom.
It appeared Saudi officials worried about the risk of pilgrims spreading the virus as they had in Iran. The virus’s epicenter in the Islamic Republic is the holy Shia city of Qom, where the faithful in reverence reach out to kiss and touch a famous shrine. That shrine and others have remained open, despite Iran’s civilian government calling for them to be closed. There have been no confirmed cases of the new coronavirus in Saudi Arabia amid the outbreak

HC: Ensure lawyers for sedition-accused

To uphold the best legal traditions, a member of the Hubballi Bar Association should appear on behalf of the three Kashmiri students charged with sedition for allegedly raising pro-Pakistan slogans in their engineering college hostel in Hubballi on February 14, the Karnataka high court observed on Thursday.
The observation came a day after the court slammed the local bar for allegedly heckling a group of Bengaluru lawyers who had appeared on behalf of the students, calling it “sheer militancy”. On Thursday, HBA officer-bearers appeared before the court with a fresh resolution, modifying the one passed on February 15 that had barred its members from appearing for the accused. However, the court was still unhappy with the modified resolution, which left the matter to individual members.
A division bench headed by Chief Justice Abhay Shreeniwas Oka noted that instead of modifying it, the association should have simply recalled the contentious resolution. The association agreed to take back the resolution.
Meanwhile, despite assurances from HBA office-bearers to ensure that proceedings are conducted in a peaceful manner, the bench said it's February 20 order directing the local police to provide security to advocates appearing for the three students will continue. “We would have transferred the case here. That was a simple task. However, as far as possible, it should be heard there. That will send the right signal. It is not good that lawyers have to seek police protection for appearing in a court,” the chief justice observed.

Don’t insist on domicile certificate, ONGC -Gujarat High Court

The Gujarat high court on 27/02/2020  Certificate of candidates for recruitment for the posts of technicians.
Various candidates residing outside Gujarat had approached the high court after they were disqualified on the ground that they had not supplied certificates showing that they were domiciled in Gujarat.
The petitioners came to know about this after they cleared the computer-based test and made it to the final merit list.
The candidates opposed ONGC’s decision to disqualify them saying that domicile certificate was not asked for in the advertisement issued in January 2019, and therefore ONGC cannot insist on this eligibility criterion.
After hearing the case, the high court allowed petitions filed by the candidates seeking directions to ONGC that it cannot insist on a domicile certificate at the belated stage of recruitment. The HC also directed the ONGC to add the names of these candidates in the final merit list.

Friday, February 14, 2020

Supreme Court issues guidelines on listing of Criminal Appeals against orders involving death penalty


The Supreme Court has issued guidelines regarding the listing of Criminal Appeals against High Court orders involving the death penalty.
As per the Office Order dated February 12, these guidelines shall be followed scrupulously by all.
The guidelines are as follows:
(A) In matters where the appeal is against a High Court order upholding the death penalty and leave is granted by Supreme Court, the Criminal Appeal will be listed for hearing before a Three Judges Bench within not later than six months from the date of grant of leave, irrespective of whether an appeal is ready or not.
(B) (i) As soon as an SLP involving death penalty is filed, a communication from the Registry may be sent to the court appealed from, seeking a certificate of service as well as an original record within a period of thirty days from the receipt of such intimation or further within such period as may be directed by the Court. The record will be sent along with the translated copy of the documents which may be in vernacular language.
(ii) On grant of leave by the Supreme Court, the Registry may insist on the filing of additional documents by the parties within a period of thirty days after the receipt of intimation in this regard.
(iii) In the event records or additional documents have not been received/filed, the matter may be listed before Judges concerned in Chambers with appropriate office report for directions, instead of listing the matter before the Registrar Court as per the existing practice.