Friday, January 31, 2020

Unequivocal statements made by counsel will be binding on their clients.

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Unequivocal statements made by counsel will be binding on their clients

The Supreme Court has observed that unequivocal statements made by counsel will be binding on their clients.
In this case, counsel for the landlord made a statement before the High Court that the tenant will be re-­inducted in equal area in the newly constructed building within one month. Before the Apex Court, the issue was whether the landlord is bound by this statement made by the Counsel.
The bench of Justices AM Khanwilkar, Hemant Gupta and Dinesh Maheshwari noted that an unequivocal statement was made by the counsel engaged by the landlord to espouse his cause before the High Court. It also noted that there is no case that he had expressly instructed his counsel not to make such a statement.It said:
The engagement was in respect of eviction proceedings and the statement was in relation to the commitment of the appellant qua the subject matter thereof and being an unequivocal statement, it will be binding on the appellant.
The Court noted that in Himalayan Coop. Group Housing Society vs. vs. Balwan Singh, it was observed that authority-­agency status affords the lawyers to act for the client on the subject matter of the retainer. It noted the following observations from the judgment:
Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions
A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed.
We may add that in some cases, lawyers can make decisions without consulting the client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights. 

Thursday, January 30, 2020

'Two Finger Test' Unconstitutional As Violative Of Woman's Right To Privacy & Dignity : Gujarat HC

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The Gujarat High Court has held that the "archaic and outdated" practice of two-finger test, conducted to determine the virginity/consent of a rape victim, is unconstitutional.
The court held that the two finger test is violative of the right of the victim to privacy, physical and mental integrity and dignity. 
The court said,
"Our endeavour is to remind the trial Courts as well as the medical fraternity that the "two-finger test" is unconstitutional, as it violates the right of the victim of sexual assault to privacy, physical and mental integrity and dignity. If the trial Court comes across any such medical certificate, wherein, there is a reference of such a test, then it should take cognizance of the same and do the needful in the matter."
As per the bench of Justices JB Pardiwala and Bhargav D. Karia, the two-finger test is in direct conflict with the proviso to Section 146 of the Indian Evidence Act, which stipulates that "in prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character."
"Despite the aforesaid proviso, the two-finger test leading to the formation of the medical opinion regarding consent allows the past sexual history of the victim to cause prejudice to her testimony.
…The test itself is one of the most unscientific methods of examination used in the context of sexual assault and has no forensic value. Whether a survivor is habituated to sexual intercourse prior to the assault has absolutely no bearing on whether she consented when the rape occurred. Section 155 of the Indian Evidence Act, does not allow a rape victim's credibility to be compromised on the ground that she is "of generally immoral character," the bench remarked.
The observations were made in a "unique acquittal appeal" where the trial Court realized its mistake in calculating the age of the victim at a very late stage. The court had recorded that the victim was above 16 years of age and hence, it went on to determine her consent by way of the two-finger test.
After pronouncing the judgment of acquittal and upon hearing the accused and the prosecution at the point of sentence however, the court realized that the victim was a minor. Therefore, the determination of the victim's consent was immaterial. In such circumstances, the trial Court found itself in a helpless situation as it could not have reviewed its order of erroneous acquittal or illegal acquittal so far as the offence of rape is concerned.
The High Court thus, in a state appeal, corrected the mistake committed by the Trial Court 25 years after the order of acquittal was passed and held the accused guilty of rape. The Court has asked him to personally remain present before it on January 31, when it is likely to sentence him.
Lastly reminding the State of its obligation in view of the International Covenant on Economic, Social, and Cultural Rights 1966 and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, apart from its statutory and constitutional obligation, the court said,

"the victim of sexual assault are entitled to legal recourse that does not traumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender based violence. The State is under an obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy."
In 2013, the Supreme Court had observed in the case Lilu @ Rajesh v State of Haryana and another that the 'two-finger test' will violate the woman's right to privacy and dignity.
In December 2019, the Supreme Court again disapproved the use of this test in sexual offence cases and called for a report from state governments on a query as to whether it has been done away with.

Tuesday, January 28, 2020

DRT has no power to condone the delay

The Supreme Court has held that the Debts Recovery Tribunal has no power to condone the delay in filing application for review under the Recovery of Debts and Bankruptcy Act 1993(RDB Act)
The Court held that the provisions of Limitation Act, including the provision to condone delay under Section 5 of it, apply only to original applications filed under Section 19 of the RDB Act and not to review applications.

A bench comprising Justices R F Nariman and V Ramasubramanian held so in the case Standard Chartered Bank vs MSTC Ltd.
The Court in this case noted that Section 24 of the RDB Act states that the provisions of Limitation Act apply to "an application made to a Tribunal".
Section 2(b) of the Act defines an "application" as an application made under Section 19 of the Act, which is an original application. The application for review is filed not under Section 19 but as per Section 22(2)(e) read with Rule 5A of the Debt Recovery Tribunal (Procedure) Rules, 1993.

Thursday, January 23, 2020

HC refuses to quash FIR against protesters

The Gujarat high court has refused to quash an FIR filed against some protesters of the Citizenship Amendment Act observing that the investigation into “the serious offence” is under way and at a very nascent stage.
The court held the accused have not been able to establish that the HC should use its special powers to quash the FIR in this case.
Four protesters including Amarnath Vasava were arrested in Chhapi town in Banaskantha district of north Gujarat, where the protesters had gathered in large numbers.
The authorities had withdrawn permission to hold the programme at the last moment and detained Vasava and three others from their hotel in the morning of December 19, 2019.
After the protests, police booked people including these four for rioting, unlawful assembly, creating rift between communities and criminal conspiracy.
The protesters approached the HC saying that they had been in police detention at the time the alleged trouble took place. Still they have been implicated in the case. Cops had taken them to the venue at the insistence of the mob.
The HC observed that their submission is attractive, but the cops had to take them to the venue due to demand of the mob, which had already started damaging property.
Two of the accused delivered speeches and shouted slogans, though there was no permission to hold the programme, the HC said.

Acceptance Of Corporate Insolvency Resolution Not A Ground To Quash Case Under Sec 138 NI Act: Madras HC

In a significant ruling, the Madras High Court has held that acceptance of the Corporate Insolvency Resolution Plan under Section 31 of the Insolvency and Bankruptcy Code, 2016 cannot be a ground for quashing the prosecution initiated under Section 138 of the Negotiable Instruments Act, 1881 against the corporate debtor and its socials. "No clause in the Corporate Insolvency Resolution Plan even if accepted by the adjudicating authority/appellate Tribunal can take away the power and jurisdiction of the criminal court to conduct and dispose of the proceedings before it in accordance with the provisions of the Code of Criminal Procedure," a single-Judge bench of Justice GR Swaminathan held.
The observations have been made in an application led under Section 482 of CrPC, seeking to quash Section 138 proceedings as non-est in the eyes of law and to direct the Complainant-Respondent to pursue their remedies under IBC. The Petitioner-company had undergone the Corporate Insolvency Resolution Process under Section 31 of the Code and moratorium in terms of Section 14 of the Code was declared, during the pendency of complaints about the dishonor of cheque.

Wednesday, January 22, 2020

Govt can’t invalidate PAN for lack of Aadhaar linkage: HC

The Gujarat high court said that a person’s Income Tax (I-T) permanent account number (PAN) does not become invalid for filing income tax returns and making transactions just because it is not linked to their Aadhaar card.
The HC said the government cannot make a PAN inoperative or hold the PAN holder to be a defaulter just because their PAN was not linked to their Aadhaar or their Aadhaar number was not quoted till the Supreme Court decides the validity of the Aadhaar Act, which is pending in the form of a reference before a larger bench.
The HC made it clear that until the apex court decides the issue of the Aadhaar Act’s validity as a money bill in Rojer Mathew v/s South Indian Bank Ltd, the government cannot take action against PAN holders for not linking them with their Aadhaar ID, under Section 139AA of the Income Tax Act.
The HC recently passed this order on a petition filed by advocate Bandish Soparkar in 2017, when the central government had issued the diktat mandating linking of PAN with Aadhaar. On March 31, 2019, the central government set a deadline of September 30 for this.

Tuesday, January 21, 2020

Udate on CAA in SC

The Supreme Court on Wednesday granted four-week time to the Centre to reply to the 144-odd petitions challenging the contentious Citizenship (Amendment) Act or CAA. While most of the petitions challenge the constitutional validity of CAA, some of them seek a declaration that the act is constitutional.
The apex court also ordered that high courts should not take up cases on CAA.
As the hearing began, Attorney General KK Venugopal, appearing for the Centre, told the bench led by Chief Justice of India (CJI) Sharad Arvind Bobde that there are 140-odd petitions but only 60 petitions have been served on Union. He sought time to reply to the rest of them.
Lawyer Kapil Sibal, representing a group of petitioners, said that matter should be heard by a Constitution bench. He also urged the court to direct Centre to put the process of granting citizenship on hold for two-three months till the apex court hears the matter. The Supreme Court is likely to send the matter to a constitution bench.
Sibal further said that the National Population (NPR) exercise is scheduled for April and should be postponed through an interim order of the court. Fellow lawyer and Congress leader Abhishek Manu Singhvi, who is also representing the petitioners, also demanded a stay saying, “If the process could wait for 70 years, can it not wait for two more months?”
But Venugopal opposed it saying there should be no interim order without hearing the Centre. The Centre’s top law officer said that seeking the postponement of implementation of the act is the same as seeking a stay of the same. CJI Bobde agreed and said it won’t grant any stay without hearing Centre.
The petitions first came up for a hearing before the top court on December 18, 2019 when the court issued notice to the central government and Venugopal. Only 60-odd petitions had been filed by then.
The Centre had subsequently filed a transfer petition seeking transfer of CAA-related cases from high courts to the Supreme Court.
The change in the citizenship law, which was passed by Parliament on December 12, 2019, amends Section 2 of the Citizenship Act, which defines “illegal migrants”. In this definition, Parliament added a provision that excluded people belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan, Bangladesh or Pakistan, from being counted as undocumented migrants. The only condition was that such people should have entered the country before 31 December 2014.
The exclusion of Muslim community from this special dispensation has led to widespread protests across the country. Critics say this is the first time that a law has linked Indian citizenship to the applicant’s religion. There have also been protests against a proposed all-India National Register of Citizens (NRC) and the potential problems in the two working in combination.
The petitioners challenging the law have submitted that the CAA discriminates on the basis of religion by segregating persons and granting them the benefit of naturalisation, if they belong to a certain religion from three neighbouring countries.
This religious segregation, the petitioners submitted, is without any reasonable differentiation and it is not only violates Article 14, but is also blatantly opposed to the Basic Structure of the Constitution.
Supporters of CAA have argued that the exclusion of Muslims from the three countries is reasonable since Muslims are in a majority in the three countries and are hence not in danger of being persecuted for their faith.

Wednesday, January 15, 2020

Have Aadhaar, passport? You’ll have to share details for NPR Voter ID, DL Info Also Mandatory

Sharing details of Aadhaar, passport number, voter ID and driving licence during the planned National Population Register (NPR) exercise will be mandatory if you possess these documents, home ministry sources clarified on Wednesday.
A senior official explained “voluntary” or “optional” sharing of identification documents only meant respondents would not be required to provide details of Aadhaar, driving licence, voter ID or passport number if these have not been issued to them in the first place. But if one has the documents, the information is to be provided even though no document needs to be shown as proof.
While announcing the Cabinet’s approval of funding for Census 2021 and NPR 2020 on December 24 last year, commerce minister Piyush Goyal had said sharing Aadhaar number during NPR would be “optional”. However, information & broadcasting minister Prakash Javadekar said NPR will involve self-certification or self-declaration while home minister Amit Shah said “voluntary” would mean it is okay if some information is not there.
The official explanation on Wednesday cleared a prevailing impression that a respondent can choose not to provide information relating to the documents. While the effort will be to persuade respondents to provide information, explaining its utility, a rarely invoked provision entails a fine of up to Rs 1,000 on the head of the family for not sharing correct particulars of household members.
An official explained the legal implications of “optional” and “compulsory”, saying, “It is indeed optional as the fields can be left blank if you don’t possess Aadhaar number, passport, driving licence or voter ID. ‘Compulsory’ would mean that you would be required to procure these documents to enter the said details in the NPR form.”
According to sources, during the Census pre-test conducted last year, more than 80% respondents had willingly shared Aadhaar details. “The only field that got an adverse response was PAN, which has been dropped.

Friday, January 10, 2020

The Citizenship Amendment Act, 2019 has come into force.

In the notification published in the Official Gazette today, the Central Government 'appoints'  the 10th day of January, 2020, as the date on which the provisions of the Citizenship Amendment Act, 2019, shall come into force. 
The Citizenship Amendment Bill was passed by Lok Sabha on 10 December 2019. A day before, it was introduced in Lok Sabha, and a day later it was passed in Rajya Sabha. The President gave his assent on 12th December 2019 and it was notified on the Gazette the same day.  
This amendment to Citizenship Act, 1955, liberalizes the grant of citizenship for non-Muslim migrants from Pakistan, Bangladesh and Afghanistan who had entered India before December 31, 2014. As per proviso introduced in Section 2(1)(b), they will not be regarded as 'illegal migrants'. It also makes migrants belonging to Hindu, Sikh, Buddhist, Parsi, Jain and Christian religions from Pakistan, Bangladesh and Afghanistan eligible for citizenship by naturalization if they can establish their residency in India for five years instead of existing eleven years.
The Government is yet to frame Rules in this regard, detailing the procedure to be adopted by authorities, by amending Citizenship Rules, 2009. There were reports that a decision in this regard will be taken after seeking experts' advice. 
Many individuals and political organisations have challenged the Constitutional Validity of the Act before the Supreme Court.