Weekly Legal Updates (10 September to 16 September 2023)

Weekly Legal Updates main objective is to update the legal knowledge of law students, lawyers, academicians and other professionals. If we do not update our legal knowledge regularly, our knowledge become redundant.

No immunity to corrupt public servants in pre-2014 cases: Supreme Court

The Supreme Court on Monday said that its 2014 ruling, removing the immunity to central government employees at the joint secretary level and above from probe in corruption cases, “will apply retrospectively” and that no such employee can demand a protection from coercive measures for the period between September 2003 – when the impugned law was framed, and May 2014 – when it was struck down.

A constitution bench, headed by justice Sanjay Kishan Kaul, declared that Section 6A of the Delhi Special Police Establishment (DSPE) Act “is held to be not in force from the date of its insertion – September 11, 2003”.

The bench, which also comprised justices Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari, further clarified that Section 6A was a procedural provision and that the 2014 decision on its validity had nothing to do with the applicability of Article 20(1), which lays down that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the alleged act.

The central question before the bench related to the applicability of Section 6A in DSPE Act, which required an investigating agency to go to the government to seek approval for the probe against public servants.

Section 6A of the DSPE Act mandated the government’s prior sanction to proceed in corruption cases against officers of the rank of joint secretary and above. However, an exception provided in Section 6A(2) states that no approval is necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept a bribe.

Section 6A of the DSPE Act was added in September 2003 through Section 26 of the Central Vigilance Commission Act (CVCA) when the NDA was in power. The then law minister, Arun Jaitley, had defended the provision in Parliament during a debate on the Central Vigilance Commission Bill. Jaitley said that those in decision-making positions, who must exercise discretion, and those who have to take vital decisions, needed to be protected against frivolous complaints.

In 2014, a five-judge constitution bench struck down Section 6A of the DSPE Act, ruling that “status or position” cannot shield an officer of the level of joint secretary and above from unconstrained probe by the CBI in cases of corruption. This bench termed Section 6A a “discriminatory” provision that “impedes tracking down the corrupt senior bureaucrats”. The court had at the time said that “the protection in Section 6A has propensity of shielding the corrupt”, adding the provision “suffers from the vice of classifying offenders differently for treatment thereunder for inquiry and investigation of offences, according to their status in life”.

The petitioner in the present case, Dr RR Kishore, was arrested by the CBI in 2004 for allegedly accepting a bribe. Kishore, at the time, was a chief district medical officer in Delhi and thus, holding the rank of a joint secretary-level officer. He had subsequently challenged the arrest in the Delhi high court, citing lack of sanction from the competent authority to arrest him. The high court, in 2006, held that the arrest was illegal since prior approval from the Union government was not obtained by CBI. At the same time, the high court allowed CBI to conduct a fresh investigation after seeking the government’s approval. In 2007, CBI challenged this order in an appeal.

While the matter remained pending in the top court, the 2014 ruling came that did away with the requirement of prior sanction for investigating charges against the central government employees at the joint secretary level or above.

When CBI’s appeal against Kishore came up before a two-judge bench in March 2016, it was noted that the 2014 judgment by the constitution bench did not mention if the ruling would apply retrospectively or prospectively. Therefore, the matter was again referred to a five-judge constitution bench to clarify whether the 2014 decision meant that officials with cases pending against them could be deprived of their immunity retrospectively.

Meanwhile, in 2018, the central government brought an amendment to the Prevention of Corruption Act, 1988, by adding Section 17A, extending the immunity from prosecution without prior sanction even to retired government officers.

Arguing in person before the constitution bench, Kishore contended that after Section 6A was struck down by the Supreme Court, the protection was reinstated by the legislature in 2018 and hence, the legal protection still continues.

CBI, on its part, opposed Kishore’s plea, arguing that Section 17A of the PC Act was not intended as a replica of Section 6A DSPE Act. Countering Kishore’s submission that the protection should be considered to be applicable in a way that it was never struck down in view of the 2018 amendment, the agency argued that such an interpretation could open floodgates of litigation.

The Constitution bench judgment on Monday means that there would be no protection to the public servants on the premise of a sanction under Section 6A in pre-2014 cases.

(Courtesy:- Hindustan Times, 11 September 2023)

Stray dog menace: Solicitor General seeks urgent intervention of Supreme Court

On noticing the lawyer wearing a bandage during a hearing, Chief Justice DY Chandrachud asked the reason.

The problem of dog bites, highlighted once again by the recent death of a teen in Uttar Pradesh, came up in the Supreme Court today in an unexpected way as a lawyer walked in bandaged after a dog attack.

On noticing the lawyer wearing a bandage during a hearing, Chief Justice DY Chandrachud asked the reason.

“I was surrounded and bitten by five dogs,” the lawyer replied.

“Where, near your house?” the Chief Justice asked. The lawyer replied in the affirmative. Justice Chandrachud immediately offered assistance and asked if the lawyer needed medical help. “We can arrange to take you to the hospital right away,” he said.

The government lawyer, Solicitor General Tushar Mehta, also stepped into the conversation, saying, “This is a serious threat. Recently, a video emerged of a child being attacked by dogs in Uttar Pradesh. We usually don’t pay much attention to these. The child was taken to the hospital after he caught a rabies infection. The doctor said nothing could be done and the child died in his father’s arms.”

The Chief Justice also shared another incident. “Two years ago, my law clerks were parking their car and street dogs attacked them,” said the top judge.

Senior lawyer Vijay Hansaria urged Justice Chandrachud to take action on the menace of street dog attacks. “We will look into it,” the Chief Justice responded.

Last week, a 14-year-old died of rabies a month after being bitten by a dog in Ghaziabad in Uttar Pradesh. The police filed cases against neighbours accused of feeding stray dogs, including one carrying rabies.

The Supreme court in June issued notice on a request to euthanise extremely dangerous stray dogs after a nine-year-old girl was attacked by a pack of strays in her neighbourhood in Kerala.

(Courtesy:- NDTV, 11 September 2023)

Supreme Court warns SpiceJet of ‘drastic action’ if Credit Suisse dues unpaid

The Supreme Court on Monday directed SpiceJet to pay $1.5 million in a case related to unpaid dues to Credit Suisse by September 15 and warned the budget airline of unspecified “drastic action” at the next hearing if it failed to do so.

A third of the amount is part of a monthly settlement plan SpiceJet had previously agreed with Credit Suisse, and the rest are unpaid dues to the bank which it has failed to pay as per a schedule agreed upon last year.

If SpiceJet fails to pay, the Supreme Court will take “drastic action” when the case will next be heard on September 22, the judge said, without giving details. The hearing was attended by SpiceJet chief and co-founder Ajay Singh.

The court order is the latest setback for cash-strapped SpiceJet which told a court last month it was “struggling to stay afloat” after it was ordered to make a payment in a separate case against the airline’s former owner.

SpiceJet did not immediately respond to a request for comment, but the Supreme Court judge said the airline had asked for more time to file its response to the case.

The airline had previously said the Credit Suisse debt was an old one which predated the tenure of its current management.

Credit Suisse and SpiceJet have been engaged in a legal dispute since 2015 over Credit Suisse’s claim of unpaid dues of around $24 million, which led to the Madras High Court’s order that the airline be wound up in 2021.

In an appeal against the high court order, the top court suspended the winding-up proceedings, allowing both parties to discuss a settlement. In August 2022, both sides informed the top court that they had agreed to settle the dispute.

But subsequently, Credit Suisse in March approached the Supreme Court seeking to initiate contempt proceedings against SpiceJet and Singh over “a wilful and intentional disobedience” of court orders and failure to pay dues of $3.9 million as per a settlement between the two sides.

The court has directed Singh to respond to the contempt case within four weeks and be present at hearings.

(Courtesy:- India Today, 11 September 2023)

Supreme Court Imposes Rs 2,000 Fine On Advocate For Sending ‘Unprepared’ Junior To Court

The Supreme Court on Thursday slapped ₹ 2,000 as costs on an advocate on record for sending an “unprepared” junior to court in his place to seek an adjournment. The advocate on record is a lawyer authorised to represent clients and file cases in the Supreme Court.

As a three-judge bench headed by Chief Justice DY Chandrachud took up the matter listed for hearing, a junior lawyer appeared and requested the matter be deferred as the main advocate was not available.

“You can’t take us for granted like this. There are infrastructural costs involved in the functioning of the court. Start arguing,” the bench, also comprising Justices PS Narasimha and Justice Manoj Misra, said.

The junior lawyer told the bench he was unaware of the case and had no instructions to argue the matter.

Taking exception, the bench said, “We are under instructions to hear the case from the Constitution. Please call the advocate on record. Ask him to appear before us.” Later, the advocate on record appeared through video conferencing and apologised to the court.

The bench asked him why he sent a junior to the court without any paper and knowledge of the case.

The bench then recorded in its order, “A junior was sent unprepared without any papers. When we declined to grant an adjournment, the advocate on record appeared. Matters cannot be conducted in this manner. This is doing a disservice to both the court and to the junior who is made to appear without any paper.

“The advocate on record shall deposit costs of ₹ 2,000 to the Supreme Court Bar Association and produce receipt of the same.”

(Courtesy:- NDTV, 14 September 2023)

There is right to midday meal, not the menu: Supreme Court

In its order, the bench recorded that there is no legal breach in the policy decision of the UT administration to exclude meat products from the midday meal.

There is a right of a midday meal to children in schools run by government and local bodies but there is no right to the menu, the Supreme Court held on Thursday, as it dismissed an appeal against the Lakshadweep administration’s 2021 decision to drop meat from the midday meal.

According to a bench of justices Aniruddha Bose and Bela M Trivedi, what would be served in midday meal is the policy decision of a government, which cannot be regulated by a court of law because such matters “would not come within the scope of judicial review”.

“Where is the vested legal right of having only this (meat) food? We are a court of law, not doing value judgments of the government’s decision. You have to appreciate the limits of our role. The Union territory is not asking you to change your food habits. They are changing what they serve you in schools in midday meals. Under the Food Security Act, there may be a vested right for midday meals, but not the menu,” observed the bench.

It is not within a court’s domain to decide as to what would be the choice of food for children of a particular region nor did it have expertise to find out whether the other food being served in place of meat is being liked or not.

In its order, the bench recorded that no legal breach has been pointed out in the policy decision of the UT administration to exclude meat products from the midday meal in its schools. “It is not the court’s domain as to what food should be eaten by children of a particular region. There is no scope of interference by courts of law on that count, which would have to accept administrative decisions in that regard unless some outstanding arbitrariness is pointed out,” stated the order.

The court further took note of a submission made by additional solicitor general KM Nataraj that the administration has retained non-vegetarian items like egg and fish, which the law officer said, is available in abundance in the said islands.

“We do not find any error in the judgment of the Kerala high court in dismissing the public interest litigation. So far as the midday meal is concerned, the administration has retained non-vegetarian items like egg and fish…What is being questioned in this appeal is primarily a policy decision of the administration and no breach of any legal provision has been pointed out. It is not within the court’s domain to decide as to what would be the choice of food for children of a particular region. There is no scope of guesswork by the law courts on that count,” the order added.

The Kerala high court had in September 2021 dismissed the PIL which challenged the decision to drop meat from school meals as well as the decision to close down dairy farms in the UT.

Advocate Ajmal Ahmed, a resident of Kavaratti, challenged this judgment before the top court, contending that UT administration’s move infringed upon the ethnic culture, heritage, food habits, and the rights of the residents under Articles 19 and 300A of the Constitution. He also said that dairy farms being run by the animal husbandry department were being closed to attack the food habits of the islanders being followed from time immemorial.

The UT administration, however, cited the geographical conditions of the islands and non-availability of green fodder as reasons for shutting the dairy farms, adding it cannot be forced to continue carrying out such activities. The administration added that there was no prohibition against private persons from running dairy farms on the island.

The National Food Security Act, 2013, guarantees a midday meal to children aged 6 to 14 years in government-aided schools and those run by local bodies.

(Courtesy:- Hindustan Times, 15 September 2023)

*Disclaimer: – Always check with the original copy of judgment from the Court website.

Legal News in this Weekly Legal Update are compiled by Team www.deepakmiglani.com

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