Weekly Legal Updates (23 April to 29 April 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.

BCI opposes Supreme Court dealing with right to same sex marriage 

The Bar Council of India and state bar councils on Sunday opposed any decision by the Supreme Court on the right to marriage of same-sex couples and said given the country’s social, cultural and religious diversity, the issue must be left to Parliament. 

A joint meeting of the BCI and state bar councils presided over by chairperson Manan Kumar Mishra passed a resolution saying India being one of the most socio-religiously diverse countries, “any matter which is likely to tinker with the fundamental social structure, a matter which has far reaching impact on our socio-cultural and religious beliefs should necessarily come through legislative process only”. 

“Any decision by the apex court in such a sensitive matter may prove very harmful for the future generations of our country,” the resolution said, adding, “There is no gainsaying that the issue at hand is highly sensitive, commented upon and criticised by various sections of society… This, in addition to it, being socially and morally compunctive”. 

Requesting the SC to leave the issue for consideration by Parliament, the regulatory bodies said the highest court must defer to the people’s will reflected through Parliament. “More than 99.9% of people of the country are opposed to the idea of same-sex marriage in our country. 

The vast majority believes that any decision of the SC in the petitioners’ favour on this issue will be treated to be against the culture and socioreligious structure of our country,” the resolution said. 

The advocates’ regulatory bodies unanimously agreed that conferring the right to marriage on same-sex couples involved law making in a democratic set-up and said it was advisable that the legislature undertake an elaborate consultation process involving a spectrum of stakeholders to understand diverse views of different sections of society. (Courtesy:- The Times of India, 24 April 2023)

Government staffers not entitled to overtime work allowance: Supreme Court 

Observing that unlike contractual workers, government employees enjoy the benefit of automatic wage revision through periodic pay commission recommendations besides certain other privileges, the SC has said the latter can’t claim compensation for overtime work as such provisions are not part of the Rules which regulate their service. 

Adjudicating a dispute between the Security Printing & Minting Corporation of India and its employees on the issue of overtime allowance, a bench of Justices V Ramasubramanian and Pankaj Mithal said that unlike those employed in factories and industrial establishments, persons in public service who are holders of civil posts or in the civil services of the Union or the states are required to place themselves at the disposal of the government all the time as per the Rules and they cannot ask for overtime allowance. 

The bench set aside the orders passed by the Central Administrative Tribunal and the Bombay HC which had held that even those employees working with the Corporation were entitled for overtime allowance. 

Referring to the government Rule, the bench said, “…there was actually no scope for the respondents (employees) to seek payment of double overtime allowance. It is needless to say that no benefit can be claimed by anyone dehors the statutory Rules. Unfortunately, the Central Administrative Tribunal completely lost sight of those Rules, and the distinction between employment in a factory and employment in government service. (Courtesy:- The Times of India, 23 April 2023)

Supreme Court extends Lakhimpur Kheri violence accused Ashish Mishra’s bail till July 11

The Supreme Court extended the interim bail of Union Minister Ajay Mishra’s son Ashish Mishra till July 11. He is the prime accused in the killing of four farmers and a journalist in Lakhimpur Kheri in October 2021.

On January 25, the Court had granted Ashish interim bail for eight weeks and directed that he shall not stay in Uttar Pradesh or the National Capital Territory of Delhi during this period.

Hearing Ashish’s plea challenging the Allahabad High Court order denying him bail, the SC said, “We are conscious of the grave allegations against the petitioner, but we must also acknowledge that principles of procedural fairness require these allegations to be proven in trial proceedings.”

Four anti-farm laws protesters were killed when a convoy of vehicles, including one belonging to MoS Ajay Mishra, ran over them on October 3, 2021. Two BJP workers, the driver of one of the vehicles, and a journalist were also killed in the ensuing violence. Courtesy:- (The Indian Express, 24 April 2023)

Supreme Court lifts complete ban on development within ESZs

The Supreme Court (SC) lifted the complete ban on development within eco-sensitive zones (ESZs) of a minimum of one km around protected forests, national parks, and wildlife sanctuaries. The court had imposed absolute restrictions on development within eco-sensitive zones in June last year. However, that order has been modified now. Today’s verdict was passed on a PIL where the court environment bench had been monitoring forest clearances and protection of forest lands.

Earlier this month, during the hearing of the case, the apex court had observed that there cannot be a complete ban on development within the eco-sensitive zones around wildlife sanctuaries and national parks.

The court said it was inclined to modify the order. “If this judgment is to be implemented, the principal chief conservator of forests (PCCF) in every state will be left with no other work but to entertain requests from individual villagers for the erection of permanent structures. They clearly do not have this wherewithal,” the court had said.

Modifying its June 2022 order, the top court said the activities within ESZs shall be guided by the 2011 guidelines by the Ministry of Environment, Forest and Climate Change of India, and the 2022 office memorandum of an expert committee on ESZ. It said the 2022 ban will not be applicable to instances where appropriate notifications have been issued by the MoEFCC. The SC, however, said that mining within national parks and one km from boundaries will not be permissible.  (Courtesy:- Business Today, 26 April 2023)

Karnataka govt decision scrapping 4 per cent quota to Muslims will not be implemented till May 9: SC

The Supreme Court directed that the Karnataka government’s decision to scrap four percent quota for Muslims will not be implemented till May 9 after the state sought time to file its reply.

A bench of Justices KM Joseph and BV Nagarathna said the earlier regime of four percent quota to Muslims will continue to hold field till May 9, when the matter will be heard next, without any prejudice to the contentions to be raised by the state government.

At the outset, Solicitor General Tushar Mehta, appearing for the state government, said he will be filing the reply during the day.

“I will be filing it today but the problem is I (solicitor general) am in personal difficulty as I am arguing before the constitution bench which is hearing pleas related to same-sex marriage. Kindly put the matter for some other day”, he told the bench. Senior advocate Dushyant Dave, appearing for the petitioners, opposed the request for adjournment by Mehta, and said the hearing has already been deferred four times.

The bench agreed with Dave and recorded the submission, while posting the matter for further hearing on May 9.

On April 18, the top court had deferred till April 25 hearing on a batch of pleas challenging scrapping of the four per cent Muslim quota. (Courtesy:- Telegraph, 25 April 2023)

Ayurvedic, allopathic doctors not entitled to equal pay: Supreme Court

The Supreme Court on Wednesday held that practitioners of alternative systems of medicine such as ayurveda are not entitled to equal pay with allopathic doctors as they are not involved in performing emergency duties and complicated surgeries.

Setting aside a Gujarat High Court order, the top court said the emergency duty that allopathic doctors were capable of performing and the trauma care that they were able to provide could not be performed by ayurvedic practitioners.

It noted that even post-mortem or autopsy was not carried out by ayurvedic practitioners. The apex court was hearing appeals challenging a 2012 Gujarat HC order which held that ayurvedic practitioners were entitled to be treated on a par with doctors with MBBS degrees.

While recognising the importance of ayurvedic practitioners and the need to promote alternative or indigenous systems of medicine, a Bench of Justice V Ramasubramanian and Justice Pankaj Mithal said it could not be oblivious to the fact that both categories of doctors were not performing equal work to be entitled to equal pay. (Coutesy:- The Tribune 26 April 2023)

Supreme Court eases no-construction rule near national parks

The Supreme Court on permitted forest dwellers to legitimately continue with their traditional activities, farming, construction of houses and schools within the ecosensitive zones (ESZs) of national parks and wildlife sanctuaries. 

Modifying its year-old order banning all activities within a 1-km periphery of national parks and sanctuaries on an application from the Union government, a bench of Justices B R Gavai, Vikram Nath and Sanjay Karol said, “Hundreds of villages are situated within the ESZs in the country. If no permanent construction is to be permitted for any purpose, a villager who is desirous to reconstruct his house would not be permitted.” 

“If the government decides to construct schools, dispensaries, anganwadis, village stores, water tanks and other basic structures for improvement of the life of the villagers, the same would also not be permitted. The effect of the order will be to prevent the state or the central government from constructing roads and provide other facilities to villagers,” the bench said.

Justice Gavai said, “Even a farmer desirous to continue farming activities would be required to seek such permission. We find that such a direction is impossible to be implemented.” However, the bench refused to relax its consistent directions banning mining within ESZs. “Mining within the national park and wildlife sanctuary and within an area of 1 km from the boundary shall not be permissible,” it said. 

The Centre through additional solicitor general Aishwarya Bhati informed the court that final notifications on ESZs for 474 protected areas had been issued and draft notifications for 102 while proposals are pending for 73 more protected areas. The bench ordered the ministry of environment, forest and climate change and all states and UTs to strictly follow the provisions in the Union government’s 2011 guidelines and an office memorandum issued on May 17 last year by the ministry while issuing notifications demarcating ESZs for protected areas, which should also include list of prohibited, regulated and permissible activities. 

The Centre informed the court that number of villages in the ESZ around Nagarjunasagar Srisailam Tiger Reserve in Andhra Pradesh are 100; 323 in Valmiki Wildlife Sanctuary, Valmiki National Park and Valmiki Tiger Reserve in Bihar; 382 in Betla National Park, Palamau Wildlife Sanctuary and Mahuadanr Wolf Sanctuary in Jharkhand; 107 in Cauvery Wildlife Sanctuary in Karnataka; 168 in Kanha National Park and Phen Wildlife Sanctuary in Madhya Pradesh; 150 in Tadoba-Andhari Tiger Reserve in Maharashtra; 83 Jaisamand Wildlife Sanctuary in Rajasthan; and 22 in a small ESZ around Keoladeo National Park in Rajasthan. “If the direction issued in its June 3, 2022 order is continued, no permanent structure would be permitted to come up for whatsoever purpose in the ESZs,” the bench said. (Courtesy:- The Times of India, 27 April 2023)

Ansals’ Allowed To Go To Trial Court To De-Seal Delhi’s Uphaar Cinema Hall

A bench of Justices KM Joseph, BV Nagarathna, and Ahsanuddin Amanullah directed said the trial court may decide the plea, if moved by the firm within 10 weeks.

The Supreme Court on Thursday allowed Ansal Theaters and Clubotels Private Ltd, whose former directors were real estate barons Sushil Ansal and Gopal Ansal, to move the trial court for de-sealing of Uphaar cinema hall where 59 cinema-goers had lost their lives in a blaze in 1997.

A bench of Justices KM Joseph, BV Nagarathna, and Ahsanuddin Amanullah directed said the trial court may decide the plea, if moved by the firm within 10 weeks, in accordance with the law.

The top court recorded the submissions of Delhi Police and the Central Bureau of Investigation (CBI), represented by Additional Solicitor General KM Nataraj, that they do not have any claim over the property.

Mr Nataraj said the due process under the law needs to be followed, for which the appropriate forum is the trial court, from where the property which was under investigation can be sought to be de-sealed.

Association of the Victims of Uphaar Tragedy (AVUT) president Neelam Krishnamoorthy, who appeared in person, submitted to the top court had asked the Ansal brothers to deposit ₹ 60 crore for construction of a trauma centre in Delhi.

She said only the Delhi government can tell whether ₹ 60 crore was deposited or not, and suggested that its counsel should seek instructions.

The counsel for the Ansal brothers said they have already deposited ₹ 60 crore towards the construction of the trauma centre which is to come up at Dwarka.

The counsel said now that the trial in the main case is over, the cinema hall, which was sealed nearly 17 years ago, should be de-sealed The CBI, which has probed and prosecuted the two owners in the case, had earlier opposed the de-sealing and release of the cinema hall till the completion of the entire trial.

The probe agency and AVUT had contended that the plea seeking trial of IPS officer Amod Kanth, who as the DCP (Licensing) had allegedly allowed retention of 37 extra seats in the theatre in 1979 in violation of the Cinematograph Act, was still pending. Kanth has since retired.

The release of the cinema hall might lead to loss of crucial evidence that extra seats had resulted in closure of the gangway leading to the death of cinema-goers, the AVUT had said.

On April 20, the top court had quashed the trial court proceedings against Kanth over lack of sanction for his prosecution.

The top court had held that the magistrate had erred in issuing summons against Kanth. Fifty-nine people had died when a fire broke out during the screening of Bollywood movie ‘Border’ in Uphaar theatre in Green Park area of South Delhi on June 13, 1997. Over 100 were injured in the subsequent stampede.

On February 9, 2018, the top court had asked Gopal Ansal to serve a one-year jail term in the fire tragedy case, while his elder brother Sushil Ansal’s imprisonment was set off against the term he had already served in jail.

A two-judge bench of the top court had on March 5, 2014, held Sushil and Gopal Ansal guilty, but differed on the quantum of sentence to be awarded to them after which the matter was heard by a three-judge bench.

The Delhi High Court had on December 19, 2008 awarded one-year jail term to both Sushil and Gopal Ansal in the case while reducing the two-year sentence imposed on them by the trial court. (Courtesy:- NDTV, 27 April 2023)

Irretrievably broken down marriage can be dissolved on ground of cruelty: Supreme Court

As irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act and law has not been amended to incorporate the provision despite the apex court’s suggestions and recommendations of the Law Commission, the Supreme Court has said that such marriages inflict cruelty on both husband and wife and can be dissolved under the ground of cruelty if parties are not agreeable to divorce. 

Abench of Justices Sudhanshu Dhulia and J B Pardiwala said continuation of such broken relationship causes cruelty on both sides and the court can grant divorce on the ground of cruelty under Section 13 (1) (ia) of the Act. 

The court granted divorce to a couple who has been living separately for the last 25 years. It allowed the plea of the husband against whom his wife, who was opposing divorce, filed numerous complaints.

 The husband was arrested, but finally acquitted. “When we take into consideration the facts as they exist today, we are convinced that continuation of this marriage would mean continuation of cruelty, which each now inflicts on the other. Irretrievable breakdown of a marriage may not be a ground for dissolution of marriage, under the Hindu Marriage Act, but cruelty is. 

A marriage can be dissolved by a decree of divorce on the ground when the other party has, after the solemnisation of the marriage, treated the petitioner with cruelty,” the bench said.

“In our considered opinion, a marital relationship which has only become more bitter and acrimonious over the years, does nothing but inflicts cruelty on both the sides. To keep the façade of this broken marriage alive would be doing injustice to both the parties. 

A marriage which has broken down irretrievably, in our opinion, spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is therefore a ground for dissolution of marriage under Section 13 (1) (ia) of the Act,” it said. Law Commission in 71st report said that “irretrievable breakdown of marriage” should be incorporated as another ground for granting divorce and the same was reiterated by the Commission in its 217th report.

The apex court also made a “strong recommendation” to the Centre to consider adding irretrievable breakdown of a marriage as a ground for divorce under the Hindu Marriage Act. But the Centre preferred not to act and the apex court had to invoke its special power granted under Article 142 of the Constitution to dissolve such marriages when parties did not agree for divorce by consent. “We have a married couple before us who has barely stayed together as a couple for four years and who has now been living separately for the last 25 years. 

There is no child out of the wedlock. The matrimonial bond is completely broken and is beyond repair. We have no doubt that this relationship must end as its continuation is causing cruelty on both sides,” the bench said. (Courtesy:- The Times of India, 28 April 2023)

Adani-Hindenburg case: SEBI moves Supreme Court seeking six-months to file report, calls it ‘complex matter’

The Securities and Exchange Board of India (SEBI) April 29 2023 filed an application before the Supreme Court, seeking six-month extension to complete its probe into the Hindenburg allegations of “stock manipulation” by the Adani Group. SEBI in its application has stated that “it would take further time to arrive at verified findings and conclude the investigation.”

The Hindenburg Research has made a litany of allegations, including fraudulent transactions and share-price manipulation, against the business conglomerate. However, the Adani group has dismissed the charges as lies, saying it complies with all laws and disclosure requirements.

“Applicant/SEBI most respectfully submits that keeping in view the forgoing circumstances, it would take further time to arrive at verified findings and conclude the investigation… for ascertaining possible violations related to mis-representation of financials, circumvention of regulations and/or fraudulent nature of transactions in respect of 12 suspicious transactions… given the complexity of the matter, SEBI in the normal course would take at least 15 months for completion of the investigation of these transactions, but is making all reasonable endeavours to conclude the same within six months,” SEBI, in an application moved in the apex court, said.

SEBI further submitted that in order to conduct a proper investigation and arrive at verified findings, it would be just, expedient and in the interest of justice that the apex court extends time to conclude the investigations by at least six months.

The apex court, in an order passed on March 2, had set a deadline to submit a status report on May 2, while asking SEBI to expeditiously conclude the investigation and file a status report. (Courtesy:- India Tv, 29 April 2023)

Decade-old forgery case against Badals quashed by Supreme Court 

Over a decade after proceedings were initiated in a lower court on a complaint of forgery and cheating for submitting different constitutions of Shiromani Akali Dal before the EC and the Gurdwara Election Commission (GEC), the Supreme Court on Friday quashed the case against Parkash Singh Badal, who died three days ago, and his son Sukhbir Singh Badal. 

The Badals had approached the apex court after the summoning order passed by the trial court was upheld by Punjab and Haryana HC. It was alleged that the party constitution submitted to GEC in conformity with the Sikh Gurdwaras Act was contrary to the one submitted to EC. 

It claimed the constitution submitted to the GEC showed SAD was engaged in religious activities while the undertaking to the EC said it would bear allegiance to the principles of secularism. It said SAD had no right to function as a political party as its office-bearers were non-secular. 

A bench of Justices MR Shah and CT Ravikumar said no case of forgery was made out in the case. “In the present case, no false document has been produced. What was produced was the memorandum and no other documents were produced. Even according to original complainant, the memorandum and the claim made at the time of registration of the party that it has adopted a memorandum accepting secularism, the same was contrary to the constitution of party produced before GEC. Making a false claim and creating and producing false document both are different and distinct,” it said. (Courtesy:- The Times of India,  29 April 2023)

Bengal teacher jobs case | Case taken away from him, Calcutta HC judge: ‘Supreme Court jug jug jiyo’

Hours after the Supreme Court asked the Acting Chief Justice of the High Court to reassign the West Bengal teacher recruitment case pending before him to another judge and then stayed his order seeking a report from the Supreme Court Secretary General, Justice Abhijit Gangopadhyay of the Calcutta High Court said Friday he believes that “gradually all recruitment related cases will be taken away from me” and then added “Supreme Court jug jug jiyo”.

Soon after a bench headed by Chief Justice of India D Y Chandrachud ordered that the matter be reassigned, Justice Gangopadhya, at the centre of a row over a media interview in which he had made remarks against TMC leader Abhishek Banerjee, directed the Supreme Court’s Secretary General to place before him by midnight the report submitted in court and the official translation of his interview.

This unusual direction led to a late evening sitting of the  Supreme Court  and it stayed Justice Gangopadhyay’s order seeking the report from the Secretary General.

The bench of Justices A S Bopanna and Hima Kohli said the “order ought not to have been passed in a judicial proceeding, more so keeping in view the judicial discipline expected to be maintained”.

It directed “the Secretary General of this Court to communicate a copy of this order to the Registrar General of High Court of Calcutta forthwith, who shall in turn place the same before the learned Single Judge”.

Earlier in the day, the bench of CJI Chandrachud and Justice P S Narasimha asked the High Court Acting Chief Justice to reassign the case pending before Justice Gangopadhyay in which the HC had ordered a probe against Abhishek Banerjee in connection with the teacher recruitment case.

Hearing a plea by Banerjee, who said that the judge had made certain remarks against him in an interview to ABP Ananda, the Supreme Court had on April 24 sought a report on it from the Registrar General of the Calcutta High Court.

The bench perused the report Friday and directed that the case be reassigned to another judge.

“We have considered the note prepared by Justice Abhijit Gangopadhyay… and have also perused the transcript of the interview. The transcript has been authenticated on April 26, 2023, by the interpreting officer… Having considered the transcript, we direct that the Hon’ble Acting Chief Justice of the HC of Calcutta shall reassign the pending proceedings in the case to some other judge of the Calcutta HC,” the bench said.

It said “the judge to whom the proceedings are reassigned… would be at liberty to take up all applications which may be moved in that regard”.

On September 20 last year, five months after he had ordered a CBI probe into the teacher recruitment case, Justice Gangopadhyay had told ABP Ananda that Abhishek Banerjee should be jailed for three months over his remarks that a section of the judiciary was hand-in-glove with the BJP. (Courtesy:- The Indian Express, 29 April 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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