Weekly Legal Updates ( 18 February to 24 February 2024)

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.

Chandigarh mayoral polls officer ‘has to be prosecuted’: Supreme Court’s rebuke

The Supreme Court has ordered the production of the ballot papers and video of the counting of votes in Chandigarh mayoral polls by 2 pm on Tuesday. The court also rapped the Returning Officer who presided over the polls, saying that he must be prosecuted for “defacing ballot papers”.

Hearing a petition alleging foul play in the mayoral election, a bench headed by Chief Justice of India DY Chandrachud also asked the deputy commissioner to appoint a new returning officer who was not associated with any political party.

“We are pained by the horse-trading which has happened in Chandigarh assembly,” the bench said.

“This business of horse-trading should be stopped and that is why we want to see the ballot papers tomorrow itself,” it added.

The BJP swept the January 30 Chandigarh mayoral polls, retaining all three posts, and defeating the Congress-AAP alliance. The AAP then moved the Supreme Court demanding fresh polls, accusing Returning Officer Anil Masih of “fraud and forgery” in the election process.

A video also went viral showing Anil Masih ticking the ballot papers while glancing at the CCTV, raising concerns about the fairness of the elections.

The Supreme Court had summoned Anil Masih to physically appear before the bench during the hearing. On Monday, the bench asked him about the video and why he was looking into the CCTV.

To this, the Masih replied that all the ballot papers were defaced and he was just marking them. “There were so many cameras that I was just looking at them,” he said.

The bench then asked him why he marked the ballot papers, Anil Masih said he did it so that ballot papers did not get mixed.

“That means you marked it. He has to be prosecuted. In an electoral democracy, this cannot be allowed,” the bench remarked.

(Courtesy:- India Today, 19 February 2024)

‘You speak of Nari Shakti…’: Supreme Court raps Centre over woman officer’s plea

The Supreme Court on Monday pulled up the central government over denying consideration of a Permanent Commission (PC) to a woman officer serving in the Indian Coast Guard. The top court criticised the government’s “patriarchal attitude” and questioned its vision and advocacy of ‘Nari Shakti’.

A division bench led by Chief Justice of India DY Chandrachud and comprising Justices JB Pardiwala and Manoj Misra stressed that the Coast Guard could not be ruled out on the criterion when the Navy and Army have fallen in line with granting Permanent Commissions to women officers.

“You speak of ‘Nari Shakti Nari Shakti,’ now show it here. You are at the deep end of the sea here. I don’t think the Coast Guard can say they can fall out of line when the Army and Navy have done it all. You all have not read the Babita Punia judgment so far,” the bench remarked.

In the Babita Punia judgement, the top court had held that women Short Service Commission officers are entitled to a Permanent Commission on par with their male counterparts.

During a brief hearing on Monday, the three-judge bench headed by the CJI also said, “What is this patriarchal attitude of the Coast Guard here? Why do you not want women in the Coast Guard? Women can guard the borders; they can guard the coast too.”

The bench’s observations were made after Additional Solicitor General (ASG) Vikramjit Banerjee, who was appearing for the Centre, told the bench that the Coast Guard have a different stream of operations compared to other defence forces.

The bench mentioned the presence of a Permanent Commission of women in the Navy and questioned why the Coast Guard should be made an exception.

“Why be so patriarchal that you do not want to see women in the Coast Guard segment? You have women in the navy; what is so special about the Coast Guard?” questioned the CJI, adding, “We will open up the whole canvas; times are gone when we say women cannot be in the Coast Guard; women can guard the borders; women can guard the coasts as well,” the bench further said.

The court’s observation came while hearing a plea filed by Priyanka Tyagi, a short service appointment officer, who had been denied the opportunity to be considered for the Permanent Commission even after serving 14 years with an impeccable record.

In her plea, the woman officer said, “As of the present date, the Petitioner has the highest flying hours as per her seniority in all the forces, including male and female, i.e., 4500 hours on the Dornier Aircraft and has heroically saved more than 300 lives at sea.”

Her plea further detailed how the board, which was to decide on granting a Permanent Commission to the SSA women officers in the Indian Coast Guard, was cancelled. 

(Courtesy:-India Today, 19 February 2024)

No permission for zoo, safari in forests without Court nod: Supreme Court

The Supreme Court examining the validity of amendments to the Forest (Conservation) Act on Monday held that its prior permission will be necessary for setting up any zoo or safari in a forest, and directed all states and union territories to submit information about the total forest land, as determined under a 1996 top court decision to the Centre, latest by March 31 this year.

A bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud passed the interim order while adjourning the petitions challenging the validity of the 2023 amendments to July. The order became necessary as the petitioners before the Court expressed apprehensions that the amendments, if allowed to operate, will result in de-classification of over 1.97 lakh square kilometres of forest, protected under the definition of “forest” by a top court order of December 12, 1996 in the landmark TN Godavarman case.

“We issue an interim order to the effect that any proposal for setting up a zoo or safari referred to in the Wild Life (Protection) Act, 1972, owned by government or any authority in forest area other than protected areas, shall not be finally approved save and except the final approval of this Court,” held the bench, also comprising justices JB Pardiwala and Manoj Misra.

The bench further directed the Centre to issue a circular to all states and union territories directing them to comply with the 1996 ruling and require them to submit reports on identified forest land as per the Godavarman ruling within two weeks. The states and UTs were directed to do the needful before March 31. Once the reports are received, the Centre was further directed to digitise the records and publish it on the website of the ministry of environment, forests, climate change (MoEFCC) not later than April 15.

Under the amended Forest Conservation Act, the Court exempted zoo and safari from the long list of non-forestry activities, paving the way for such activities to be organised inside forests. Already, a proposal for setting up tiger safari at Jim Corbet tiger reserve in Uttarakhand has been reserved for judgment by the top court. Another proposal is in the pipeline to have an animal safari at Haryana’s Aravalli forest range against which an application has been moved in the top court.

The Court said, “Where any proposal (for zoo or safari) is sought to be implemented, the Union government or the competent authority shall move this Court.”

The order was passed in a batch of petitions filed by a group of retired Indian Forest Service officials and former bureaucrats and NGO Vanashakti, which objected to these amendments allowing wholesale abuse of forest land.

The petitioners led by senior advocate Prashanto Chandra Sen and advocate Prashant Bhushan argued that the amendment constricted the definition of forests from what was laid down in the 1996 Godavarman ruling.

They referred to the India State of Forests Report of the Forest Survey of India (FSI) and said that out of the total of 7.13 lakh sq km of forests in the country, an area of 1.97,159 sq km having tree cover (not forming part of declared forests in government records) would stand excluded from the recorded forest areas (RFA) as the amendment recognised only declared forest land while excluding the Godavarman interpretation of treating forests as per its dictionary meaning and all lands treated as forests under any law or government records.

Sen argued that when the amendments were discussed by the joint committee of Parliament, this apprehension was raised on whether the amendments would fall foul of the Court’s decision. He pointed out that the Centre made a solemn assurance to the Committee that the amendments are in compliance with Court’s directions. “The proof of the pudding is in the eating. As per the 1996 decision, all states and UTs were directed to constitute an expert committee to identify forests based on the Court’s ruling. We have applied under Right to Infromation Act to get access to these reports and we have not been supplied with any,” Sen submitted.

Additional solicitor general (ASG) Aishwarya Bhati appearing for Centre informed the Court that some states have given their state expert committee (SEC) reports as directed by the Court. “The Centre will require hand-holding from the Court to get this information from states as ultimately the Centre wants to digitise this information,” Bhati added.

The Court said, “The report of SEC is crucial for maintenance of contemporaneous record of forest land. The Union of India through MoEFCC, within a period of two weeks shall require all states and UTs to provide comprehensive record of all lands identified as forests, in pursuance of directions given in TN Godavarman ruling.” It further held, “These records shall be maintained by MoEFCC and duly digitised and made available in electronic format and be made available on its website not later than April 15, 2024.”

Under the Van (Sanrakshan Evam Samvardhan) Adhiniyam 2023 which provides for an explanation on what forests are to be included as per government record, ASG said that states and UTs are required to prepare consolidated record of such lands, including forest like areas as identified by the expert committees, unclassed forest lands or community forest lands on which the Adhiniyam will be applicable.

The Court’s order said, “We clarify pending the completion of exercise by states and UTs under the Adhiniyam Rule 16, the principles which are elucidated by this Court in TN Godavarman case must continue to be observed….The MoEFCC shall, in pursuance of this interim order, issue a circular to all states and UTs to act strictly in accordance with the directions given by this Court.”

Last month, the MoEFCC had filed a detailed response defending the amendments The Godavarman decision held that ‘forest land’ as defined in Section 2 of the Forest Conservation Act, 1980 would include not only forests as understood in the dictionary sense but any area recorded as forest in the Government records.

The affidavit said, “All forests, including unclassed forests, recorded in record of government, forest department, local bodies, or authorities will also attract provisions of the Act…It is emphasised that the provisions of the Amended Act, in no way, will dilute the directions contained in the order of December 12, 1996 passed by Supreme Court. On the contrary, it will consolidate and codify the law relating to forests in the country.”

The petitions also questioned the inclusion of zoos and safaris under non-forestry activities and other exemptions such as setting up of security infrastructure and projects of strategic importance near border areas from forest land.

On the above issues, the Centre’s affidavit said, “Such zoos and safaris are generally created in the proximity of habitation to ensure minimum disturbance to the pristine forest ecosystem. Such activities will not only sensitise and generate awareness about the importance of protection and conservation of forest land and wildlife, but will also add to the livelihood sources of local community, thereby providing them opportunities to connect with mainstream of development.”

The Centre defended exemptions under the Act for setting up security infrastructure by pointing out that security-related infrastructure, linear strategic projects along border and left-wing extremist districts are not “blanket exemptions” and will include specific projects of strategic importance or national security as “identified by Central government”.

The first petition challenging the amended Act filed by a group of 13 retired bureaucrats was entertained by the Court in October last year. They argued that permitting commercial activity in forests with the creation of permanent structures, access roads, power transmission lines and other supporting infrastructure for zoos and safaris will “sound the death knell of forests in India.” The petition further said, “Each diversion of land, without any cumulative ceiling being prescribed across the country, will pockmark our forests with cancerously growing deforested islands and fragment them, causing enormous ecological loss.”

The Forest Act amendments received Presidential assent on August 4 last year.

(Courtesy:- Hindustan Times, 19 February 2024)

Supreme Court orders govt to pay Rs 60 lakh to military officer sacked after marriage

In a significant ruling, the Supreme Court has directed the Centre to pay Rs 60 lakh to Lt. Selina John, a former permanent commissioned officer from the Military Nursing Service (MNS), who was relieved of her duties in 1988 due to her marriage. The court emphasized that any law or regulation that considers marriage and domestic responsibilities as grounds for termination is unconstitutional, a TOI report stated.

The apex court’s decision came during the hearing of an appeal filed by the Centre challenging an order from the Armed Forces Tribunal, which had called for Lt. Selina John’s reinstatement.
The bench comprising Justices Sanjiv Khanna and Dipankar Datta concluded the 26-year legal battle of Lt. Selina John by directing the Centre to pay her Rs 60 lakh as a full and final settlement. Her dismissal from service in 1988 was based on Army Instruction No. 61 of 1977, which was later withdrawn in 1995.

Rejecting the patriarchal notion behind such rules, the court stated, “Acceptance of such a patriarchal rule undermines human dignity and right to non-discrimination.”

Furthermore, the court highlighted the discriminatory nature of rules that consider marital status as a disqualifying factor for women employees. It reiterated that laws based on gender bias are constitutionally impermissible.

Lt. Selina John’s journey in the MNS began in 1982 when she was selected according to the service’s rules. She was commissioned as a Lieutenant in 1985 and served at the Military Hospital in Secunderabad until her release in 1988 following her marriage to an Army officer.

Upon her termination, Lt. Selina John pursued legal recourse, starting with a petition in the Allahabad High Court, which directed her to approach the Armed Forces Tribunal. In 2016, the AFT, Lucknow, ruled in her favor, ordering the Centre to reinstate her. However, the government appealed to the Supreme Court, leading to the recent judgment.

(Courtesy:- The Economic Times, 21 February 2024)

Your lost iPhone is your responsibility, not Apple’s, rules Supreme Court

The Supreme Court of India has ruled that Apple India is not obligated to track stolen iPhones using their unique identity numbers. According to a report by Live Law, this decision overturns an earlier directive by the Odisha State Consumer Commission, which had placed this responsibility on Apple.
As per the report, a consumer in Odisha had purchased an iPhone with theft insurance and reported it stolen to both the police and Apple India. The consumer expected Apple to take action and track the device but Apple wasn’t obligated to do that. The consumer filed a complaint, leading to a District Consumer Forum ruling in their favour. However, the District Consumer Forum’s decision was appealed by Apple.
In its ruling, the Consumer Forum said that, as the manufacturer, Apple was obligated to use the phone’s unique identifier to track its location. However, Apple argued against being forced to act as a law enforcement agency and appealed to the Supreme Court.

The Supreme Court, acknowledging Apple’s compensation to the consumer, ultimately sided with the company. The court stated that requiring them to track stolen phones was an “unwarranted observation” and not a part of their responsibility. The apex court ordered the removal of the contentious paragraph from the State Commission’s order, clarifying the limits of corporations’ obligations in such situations.

(Courtesy:- The Times of India, 22 February 2024)

States must work with ED in its probe: SC to Tamil Nadu

Supreme Court on Friday said state govt officials should cooperate with Enforcement Directorate in its probe in money laundering cases and questioned the Madras high court order staying ED’s summonses to five district collectors of Tamil Nadu in illegal sand mining cases.The observation could have implications for cases being probed by the agency in opposition-governed states.

At the outset of hearing, a bench of Justices Bela M Trivedi and Pankaj Mithal said, “How can the state file this writ petition? Under which law… You satisfy us on how the state is interested and how it can file this writ petition against Enforcement Directorate. How is the state aggrieved?” ED filed a petition against TN in SC, the other side pointed out.

Tamil Nadu government was bound to protect its officials from “illegal“ Enforcement Directorate (ED) probe, the state told Supreme Court on Friday as the court said the state must cooperate with the agency in its probe into money laundering.

ED summoned Vellore, Tiruchirappalli, Karur, Thanjavur and Ariyalur district collectors on Nov 17, but Tamil Nadu govt, along with the aggrieved bureaucrats, filed writ petitions in Madras high court (HC) alleging violation of their fundamental rights by ED. HC had stayed the summonses.
ED moved SC against the HC order that held that the agency was venturing “into a fishing expedition to find out whether information and evidence collected from the district administration can be processed further from other sources to find out commission of scheduled offence” so that it may then identify the proceeds of crime that will help them proceed under PMLA. Senior advocates Mukul Rohatgi and Amit Anand Tiwari, appearing for the state and the officers, said while petitions filed by the officers were maintainable as they were the aggrieved party, the state was also bound to protect its officials from “illegal” probe.

The SC bench was about to stay the HC order, but it deferred the hearing for Feb 26 after Rohatgi pleaded for time to clear the preliminary objection raised by the bench by placing before it details of writ petitions filed by ED against the state. He also said there was no predicate offence in the case for ED to start probe and HC was right in staying the summonses.

Additional solicitor general S V Raju, appearing for ED, told SC that the district collectors were not among the accused in the case and were summoned only as witnesses.

(Courtesy:- The Times of India, 24 February 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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