Weekly Legal Updates (19 November to 25 November 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.

6 years+ kids rarely find adoptive parents, Supreme Court told

The Central Adoption Resource Authority (CARA) painted a gloomy picture for nearly 3.5 crore children awaiting adoption in various Child Care Institutions (CCIs) saying that the cumbersome procedures and resultant inordinate delay had led to a situation where many of the children available for adoption reach the age of 6 years when a majority of prospective adoptive parents ( PAPs) are no longer willing to embrace them.

Additional solicitor general Aishwarya Bhati, appearing for CARA with its director Jagannath Pati, informed a bench of CJI DY Chandrachud and Justices J B Pardiwala and Manoj Misra that
nearly 70% of PAPs prefer to adopt children aged below two years. Only 10.3% of PAPs adopt children aged 2-4 years and 14.8% prefer to adopt children aged 4-6 years.

Providing comprehensive statistics about adoptions, Bhati said though crores of children are lodged in CCIs, only 2,146 were ‘legally free’ to be adopted. As on October 28, there were as many as 30,669 PAPs registered with CARA. As per data placed before the SC, the annual number of adoptions has declined from 4,362 in 2014-15 to 3,158 in 2022-23.

(Courtesy:- The Times of India, 21 November 2023)

Supreme Court agrees to consider review petitions on same-sex marriage verdict

The Supreme Court on Thursday agreed to consider on November 28 a bundle of petition seeking a reconsideration of its October 17 judgment that had refused to grant legal recognition to same-sex couples and said only Parliament and state legislatures can validate their marital unions.

Senior counsel Mukul Rohatgi mentioned the matter before Chief Justice of India Dhananjaya Y Chandrachud, requesting the CJI to ensure that the review petition comes up for consideration before five judges on November 28 – the tentative date assigned by the court registry.

Several other lawyers, who had earlier appeared in the matter, were also in attendance when Rohatgi made the request.

“We have also sought an open court hearing. It is tentatively listed on November 28. Let it not be deleted. Apart from this, majority or minority, both views have held that there is a discrimination (against LGBTQ+ couples). If there is discrimination, there also has to be a remedy. This is why we have pressed for an open court hearing,” Rohatgi submitted.

Responding, the CJI said that he was still to go through the review petitions and that the lawyers’ plea for an open court hearing would be considered appropriately.

A review petition comes up before the same composition of judges through circulation in their chambers and is mostly decided without an open court hearing. However, if the judges find some merit in the review plea, they can allow an open court hearing and oral arguments.

Of the five judges on the same-sex marriage bench, justice S Ravindra Bhat retired on October 20, which means the CJI will have to add a new judge to the bench for considering the review petitions. It is for the CJI, as the master of the roster, to assign a date for considering the review plea inside judges’ chambers.

By a 3-2 majority, the October 17 judgment had refused to accord legal sanction to same-sex marriage, and also declined to grant constitutional protection to civil unions and adoption rights for queer couples, noting that mandating the State to grant recognition or legal status to some unions will violate the doctrine of separation of powers and could lead to unforeseeable consequences.

While CJI Chandrachud and justice Sanjay Kishan Kaul ruled in favour of recognition of civil unions — considered the world over as the first step towards granting full marriage equality — and adoption rights, justices Bhat, Hima Kohli and PS Narasimha held that right to a civil union cannot be assigned the status of a constitutionally protected right when the right to marry has not been given the same status.

Udit Sood, a US-based lawyer who was among the 52 petitioners seeking marriage equality in India, filed the first review petition in the matter on November 1, complaining that the majority judgment of the court was “manifestly unjust” and “self-contradictory” in not protecting the rights of the LGBTQIA+ community despite acknowledging its travails.

“The majority ruling is self-contradictory, facially erroneous and deeply unjust. The majority found that queer Indians endure severe discrimination at the hands of the State, declared that discrimination must be prohibited, and then did not take the logical next step of enjoining the discrimination,” Sood said in his petition filed through Karanjawala & Co.

In his petition, Sood picked out parts of the judgment authored by justice Bhat, complaining that though the judgment extensively wrote on “unjust discriminatory consequences” and violation of the fundamental rights of the LGBTQ+ community, it failed to take the logical next step of prohibiting the discrimination.

Terming the contradiction an error apparent on the face of the record, Sood said that it was nothing short of “abdication of the duty” by the Supreme Court to not correct a wrong after having acknowledged it.

“Our Constitution primarily tasks this Hon’ble court — not the respondents (Centre) — with upholding fundamental rights. To find that the petitioners are enduring discrimination, but then turn them away with best wishes for the future, conforms neither with this Hon’ble court’s constitutional obligation towards queer Indians nor with the separation of power contemplated in our Constitution ,” said his petition, disputing the majority view that the government should take appropriate steps to remove the stigma of discrimination and protect queer couples.

Almost a week later, Supriya Chakravarty and Abhay Dang also moved the top court seeking a review of the October 17 judgment. They argued that constitutional courts are empowered to review statutory law to ensure its conformity with constitutional values and that such courts do not need to wait for the legislature to enact or amend laws to recognise same-sex marriage.

“There is a right to a relationship, a right to union, and a right to civil union under the Constitution, yet the majority decision fails to secure any legal status for such rights..The bench unanimously finds that the exclusion of queer couples from the existing statutory regime is discriminatory, yet the majority decision grants no relief,” complained the petition.

The top court’s ruling on October 17 unanimously held that the right to marry was not a fundamental right, and that it was beyond the remit of courts to issue a positive direction to the legislature to characterise same-sex marriages and queer relationships through a new instrument of law.

The judgments — separately authored by the CJI, and justices Kaul, Bhat and Narasimha — also refused to annul or read down the provisions of the Special Marriage Act (SMA) to include non-heterosexual couples within its fold.

The judges, however, were divided in deciding how far a court can go despite acknowledging that queerness is not an “urban, elitist concept” and required the State to ascertain protection to such couples.

While the CJI and justice Kaul maintained that the right to enter into a union by queer couples is a constitutionally protected right and that the State has an obligation to recognise such civil unions and grant them benefit under law, including adoption rights, the other three judges overruled this view.

(Courtesy:- Hindustan Times, 23 November 2023)

India’s first woman Supreme Court judge, Justice Fathima Beevi, dies at 96

Justice M. Fathima Beevi, the first woman judge to be appointed to the Supreme Court of India, died on Thursday at the age of 96. She was also the first Muslim woman judge to be appointed to any higher judiciary.

Meanwhile, the Supreme Court, which came into being on January 26, 1950, also very few women judges since its inception, and in over 71 years, appointed only eight lady judges, starting from M Fathima Beevi in 1989.

M.Fathima Beevi was born on April 30, 1927 in Kerala and her father encouraged her to study law. In 1950, she topped the Bar Council exam, becoming the first woman to receive a Bar Council gold medal.

She started her career as an advocate in Kerala and worked her way up to become a district and sessions judge in 1974. In 1980, she joined the Income Tax Appellate Tribunal and was appointed as a High Court judge in 1983.

In 1989, she scripted history by becoming the first woman appointed to the Supreme Court, a position she held till her retirement on April 29, 1992. Upon her retirement, she first served as a member of the National Human Rights Commission, before being appointed as Governor of Tamil Nadu.

She resigned from the post of Governor of Tamil Nadu after rejecting the mercy petitions filed by four condemned prisoners in the Rajiv Gandhi assassination case.

(Courtesy:- India Today, 23 November 2023)

‘Centre suggests names, Delhi picks one’: Supreme Court on Delhi top official row

The Supreme Court on Friday asked the Delhi government and the Centre to sit together and discuss the shortlisting of candidates for the Chief Secretary of the national capital. The three-judge bench headed by Chief Justice of India DY Chandrachud asked both sides to share candidates’ names with each other before the central government provides the shortlisted ones on Tuesday.

The top court made the statement while hearing a plea by the Aam Aadmi Party (AAP)-led Delhi government against the Centre for extending the tenure of the current Delhi Chief Secretary, Naresh Kumar – or appoint a new official.

During today’s hearing, the bench asked the central government to recommend a list of three names, and the Delhi government would choose an option from the list.

The three names will be shared after Solicitor General Tushar Mehta, appearing for the Centre, discusses those with the central government.

“Give us (a) workable solution. The government should work without the need to go to court. Give us a way out. One option could be to give us three names. Why don’t LG (VK Saxena) and CM (Delhi Chief Minister Arvind Kejriwal) meet and decide (the) Delhi Chief Secretary row?” the bench asked.

Senior Advocate Harish Salve, appearing for Saxena, agreed with the top court’s suggestion but requested that the candidates’ names should not be shared in the public domain.

Agreeing to Salve’s request, CJI Chandrachud said, “You cannot reveal the name as this causes serious harm to the reputation of the person who is not selected.”

The ruling AAP government has levelled several allegations against Delhi Chief Secretary Naresh Kumar, with the latest being a multi-crore ‘hospital scam’. Earlier the party alleged Kumar’s involvement in a Rs 850-crore land compensation scam linked to the Dwarka Expressway project.

Last week, AAP supremo and Delhi Chief Minister Arvind Kejriwal sent the Vigilance Department’s report against the Chief Secretary in connection with the ‘hospital scam’ to VK Saxena. Kejriwal has also demanded Kumar’s removal owing to allegations of his involvement in the scam.

(Courtesy:- India Today, 24 November 2023)

Supreme Court: Governors can’t sit on bills and veto legislative action

The Supreme Court has sought to clearly delineate the boundary of action by governors when a bill passed by a state assembly is sent for their assent by ruling that, being titular heads of states, they don’t have the power to veto legislative actions of elected governments or sit indefinitely on bills duly passed by the legislature.

The November 10 judgment, passed on a plea by the Mann government in Punjab against governor Banwarilal Purohit, was uploaded on Thursday on the SC website. The bench of CJI D Y Chandrachud and Justices J B Pardiwala and Manoj Misra said unbridled powers to “unelected head of state” to sit indefinitely over bills “virtually veto the functioning of the legislative domain by a duly elected legislature by simply declaring that assent is withheld without any further recourse”.

“Such a course of action would be contrary to fundamental principles of a constitutional democracy based on a parliamentary pattern of governance,” said Justice Chandrachud, who authored the judgment.

The bench also held that the speaker enjoys absolute power for adjourning and proroguing the House. “It is the right of each House of the legislature to be the sole judge of the lawfulness of its own proceedings so as to be immune from challenge before a court of law. During the tenure of the assembly, the House is governed by the decisions which are taken by the speaker in matters of adjournment and prorogation,” the order said.

The judgment is expected to have a chastening effect on all governors, be it in Kerala or Tamil Nadu, who have been accused by state governments of stalling bills passed by the legislature, although the apex court stopped short of setting a timeframe for Raj Bhavans to take an early decision — essentially on withholding assent and sending the legislation back to the assembly for reconsideration.

“The governor cannot be at liberty to keep the bill pending indefinitely without any action whatsoever. The governor, as an unelected head of the state, is entrusted with certain constitutional powers. However, this power cannot be used to thwart the normal course of lawmaking by the state legislatures,” the CJI wrote.

“Consequently, if the governor decides to withhold assent under the substantive part of Article 200, the logical course of action is to pursue the course indicated in the first proviso of remitting the bill to the state legislature for reconsideration,” the court said.

CJI Chandrachud termed democracy and federalism as “two prongs of a tuning fork” which work towards realisation of fundamental freedoms and aspirations of citizens and said, “Whenever one prong of the tuning fork is harmed, it damages the apparatus of constitutional governance.”

Dealing with the issue central to the debate — the Constitution’s silence over the period within which a governor is to take a decision on whether to give assent, the mandatory pre-requisite for enactment of a bill — the bench suggested that it could not be interminably long.

“The substantive part of Article 200 empowers the governor to withhold assent to a bill. In such an event, the governor must mandatorily follow the course of action which is indicated in the first proviso of communicating to the state legislature ‘as soon as possible’ a message warranting reconsideration of the bill,” the bench said.

“The expression ‘as soon as possible’ is significant. It conveys a constitutional imperative of expedition. Failure to take a call and keeping a bill duly passed for indeterminate periods is a course of action inconsistent with that expression. Constitutional language is not surplusage,” the bench added.

(Courtesy:- The Times of India, 24 November 2023)

In no other state, police officers involved in NDPS cases: SC tells Punjab govt

The Supreme Court on Friday observed that Punjab is the only state where it has come across the involvement of police officers in drug-related offences while considering a petition filed by a sacked senior police officer seeking anticipatory bail in a case under the Narcotics Drugs and Psychotropic Substances (NDPS) Act.

“There is no other state where police officers are involved in NDPS cases. In no other state do we find this,” said a bench of justices BR Gavai and PK Mishra as the bench posted the matter for November 28 to enable the officer– dismissed additional inspector general (AIG) Raj Jit Singh Hundal – to file a response to the Punjab government’s allegation that he was not cooperating with the probe.

While the Court had on October 6 granted anticipatory bail to Hundal in one of the three cases registered against him, the Punjab government filed an affidavit claiming that two other cases, one under the NDPS and another for disproportionate assets under the Prevention of Corruption Act, are also pending against the dismissed officer.

Hundal’s alleged involvement came under scanner while the Court was probing the role of former Inspector Inderjit Singh, who was accused of extending undue benefits to the accused in three NDPS cases by faulty investigation that helped them get acquitted.

The state police, while probing the case, found that Singh enjoyed the protection of the petitioner, who was posted as Tarn Taran’s senior superintendent of police at the relevant time. He was accused of failing to take action despite being informed about his subordinate’s alleged links with drug suppliers.

Senior advocate Kapil Sibal, who appeared for Hundal, argued that the cases against his client are fabricated as he is sought to be made a “scapegoat” in the tug of war-between two factions of the Punjab Police at the highest level.

“In no other state will you find that cases are fabricated in this fashion. I am not involved in these cases. Allow me to file a response to the state’s affidavit,” said Sibal. The Supreme Court then allowed the petitioner to file a response and posted the case for hearing on Tuesday.

The state, represented by senior advocate Abhishek Manu Singhvi, along with additional advocate general Shadan Farasat, told the Court that the petitioner had breached the conditions imposed by the Supreme Court in its October 6 order and that his bail is not to be extended.

The Court order required the petitioner to report daily to the investigating officer between 10am to 1pm and cooperate with the investigation. Singhvi said that since the date of the order, multiple notices were sent to Hundal to join the probe, but he turned up only on October 20.

Sibal replied, “I was told to cooperate with the investigation in one FIR (first information report), but I was not told that on April 20, 2023, they filed another FIR under the Prevention of Corruption Act and a third one under NDPS and other provisions of the Indian Penal Code (IPC) on May 16.”

Hundal had filed a fresh petition through advocate Shradha Deshmukh in the Supreme Court seeking anticipatory bail in the disproportionate assets case. This matter is yet to be taken up. In that petition, Hundal challenged an order passed by the Punjab & Haryana high court on October 20 refusing him anticipatory bail.

The high court had concluded, “As per the bank details from 2016 till 2022, the amount received in the petitioner’s bank account was Rs.13.82 crore found to be in addition to his salary of around ₹74,21,584. As a public servant, the petitioner was obliged to explain the transactions, whereby he amassed such a massive amount of around Rs.13,82,48,593.”

The petitioner claimed this finding to be false as the high court relied on an “investigation report” submitted by the state without sharing it with Hundal’s lawyers.

The state pointed out that the three FIRs against Hundal were filed based on three special investigation team (SIT) reports filed before the high court. The high court was considering a batch of petitions seeking to probe the role of police officers in compromising the probe into NDPS cases.

On September 15 this year, the high court permitted the state to proceed on the basis of the SIT reports recommending that the involvement of public servants, including police officers, with drug peddlers needs to be independently investigated.

The affidavit by the Punjab government filed through advocate Nupur Kumar said, “It is only after the independent SIT found extensive materials against the appellant, and suggested that an investigation be formally initiated…the present petitioner was arrayed as a co-accused in the FIR dated April 19.”

He was added as an accused after the state home department granted sanction to the Director General of Police on April 17.

Sibal had relied on this letter to claim that the state government was interfering with the probe. On the previous date of hearing, Sibal further claimed, “The order of April 17 whereby the Special Secretary Home directed the DGP Punjab to nominate the petitioner as an accused in a six-year-old FIR, is wholly untenable in law and tantamount to dictating the course of investigations.”

(Courtesy:- Hindustan Times, 24 November 2023)

Decide on setting up panel for delimitation urgently: Supreme Court

The Supreme Court on Thursday directed the Union government to decide “with reasonable dispatch” setting up a Delimitation Commission to examine the need to increase seats reserved for Scheduled Castes and Scheduled Tribes in Lok Sabha and state assemblies in view of the addition of scores of communities to the list of SCs and STs after 2001 when the last delimitation exercise was carried out.

“The above circumstance makes it abundantly necessary for the Union government to take recourses under the Delimitation Act, 2002, for the purpose of ensuring that provisions of Articles 330 and 332 are duly implemented. The central government shall take a decision with reasonable dispatch,” the bench said. When additional solicitor general K M Natraj informed the court that nearly 51 communities were added after 2001 to the list of STs till the last census took place in 2011, the bench said many communities have also been added to the SC list during the same period.

“Absent the exercise of delimitation under Delimitation Act, 2002, communities who have since been added to the SC and ST list could not be in a position to obtain the benefit in terms of political representation which is contemplated under Articles 330 and 332 (proportional representation in Lok Sabha and assemblies respectively),” it said, referring to the constitutional obligation to ensure adequate representation for SCs and STs in legislatures.

“This is a matter which must engage the serious attention of the Union government. The manner in which this exercise should be completed would be determined within the purview of the Delimitation Act, 2002, but would require legislative amendments, particularly having regard to the first and second schedule of Representation of the People Act,” it said.

The CJI-led bench, however, clarified, “This judgment shall not be construed as interfering with the election schedule which the EC would decide in respect of conducting elections to Parliament or assemblies. The need to hold elections on time is an overarching constitutional mandate and would, therefnullnullore, not be affected by the direction to the Union government.”

What started as an examination of proportionate representation to Limboo and Tamang tribes after their inclusion in the ST list in Sikkim, which already has 38% reservation of seats for STs in the 32-member assembly, changed course over the hearing to lead to an examination of the need to reserve more seats in view of their increased numbers. It led to a three-day-long dictation of judgment in open court by CJI D Y Chandrachud. The bench of CJI Chandrachud and Justices J B Pardiwala and Manoj Misra dropped the earlier resolve to give Limboos and Tamangs proportionate representation in Sikkim assembly given the state’s historical background and assimilation in the Indian Union, after a forceful intervention by senior advocate Rakesh Dwivedi who explained relevant constitutional provisions to urge the bench to hold its hand.

But the bench ended up by asking the Union government to set up a Delimitation Commission under the Delimitation Act, 2002, to examine proportionate representation to SCs and STs in terms of reserving seats for them in state assemblies because of addition of new communities to the lists.

(Courtesy:- The Times of India, 24 November 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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