Weekly Legal Updates ( 24 December to 30 December 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.

Armed Forces Tribunal can’t direct govt to formulate promotion policy in particular manner: SC

The Supreme Court has said the Armed Forces Tribunal being a quasi-judicial body is not
empowered to direct the government to formulate a policy for promotion in a particular manner affecting the services of the personnel.

Acting on an appeal by the Union government, the court, in its December 14 judgment, quashed and set aside an order by the Armed Forces Tribunal, Principal Bench, Delhi directing the Centre to permit Air Commodore N K Sharma to function as JAG (Judge Advocate General) (Air) till such time that the formulation of a policy for filling up the possession of AVM (Air Vice Marshal) takes place, and giving him an opportunity to be considered under such a policy.

The court said that the respondent’s challenge was barred at first instance, since he participated in the promotion board of 2015 and only challenged the non-formation of a policy for filling up the vacancy of AVM JAG (Air), finding himself to be unsuccessful in securing a promotion.

The Union government said the direction was against public policy as it would allow the officer to continue in service beyond the age of superannuation, i.e., 57 years. It also said the tribunal could not direct that a person should be considered for promotion in particular manner or in terms of a new policy, framed upon such direction.

The officer, for his part, said the direction is not against the proposition of law that a person does not have the right to be promoted but has the right to be considered for promotion. In view of the Armed Forces Tribunal Act, 2007, the bench said legislature has laid out in considerable detail,
its functioning and for the purposes of adjudication of dispute before it. The bench also said it has been observed time and again that a court cannot direct for a legislation or a policy to be made.

(Courtesy:- Deccan Herald, 27 December 2023)

Review plea in top court seeks ban on screening children for nursery admission

An NGO, Social Jurist, has filed a review petition in the Supreme Court seeking review of its earlier order refusing to direct the Delhi Lieutenant-Governor to either give assent to or return a 2015 bill proposing a ban on screening children for nursery admission.

The apex court had in its earlier order on October 13 dismissed the NGO’s plea, after noting that it cannot pass a direction to the L-G to enact a law. Challenging the order, the NGO again moved to the apex court and filed a review petition urging it to pass appropriate directions in the matter.

“The SC has erred in passing the October 13 order. It has errors in it,” said the NGO in its review petition. A review petition is filed by a losing party seeking the court to review its earlier order and or direction and judgment, citing that there is an apparent error while the court passed its previous order.

The Petitioner NGO has said that the child-friendly bill banning the screening procedure in nursery admission has been stuck between the Central and Delhi governments for many years. It also alleged that the bill was pending without any justification and against public interest.

The petitioner in its review plea claimed that the Delhi School Education (Amendment) Bill, 2015, prescribes for prohibition of screening procedures for admission of children at a pre-primary level in schools in the national Capital. According to a senior Registry official of the Supreme Court, the plea would be taken up for hearing after January first week of the next year after the winter vacation.

(Courtesy:- The Indian Express, 27 December 2023)

Bail not jail: When Supreme Court stood for liberty while hearing cases in 2023

Personal liberty forms an important aspect of our constitutional mandate, and the Supreme Court, through its many judgments, has been abiding by the principle – ‘bail is the rule and jail is the exception’. Time and again, the court and its judges have made important observations, suggestions, and remarks and have issued directions in connection with arrests and the grant of bail.

When Dhananjaya Y Chandrachud, took over as the Chief Justice of India last year, he said that the new regime would prioritise matters of personal liberty. He also explained how all benches will hear 10 bail matters every day.

In 2023, there were several cases, where the top court emerged as the court of call for the grant of bail and took a step ahead in favour of the right to personal liberty.

Here are some of those cases.

When Supreme Court said it ‘can’t keep people behind bars for so long’

This year, the Supreme Court granted bail to Benoy Babu, an official of liquor giant Pernod Ricard, an accused in the Delhi Excise Policy case. While allowing relief to the excise policy case accused, the top court made certain significant observations. The court underlined, “You can’t keep people behind bars before trial for so long.”

Benoy Babu was arrested by the Enforcement Directorate on November 10, 2022, and was in judicial custody. The top court also noted discrepancies in submissions by probe agencies Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED).

“This is not proper. We don’t know how this case will go (ahead),” the Supreme Court said during the hearing.

When Supreme Court changed the order of interim bail to a regular case

While dealing with a case where the accused was facing charges under the NDPS Act, the Supreme Court in November modified the Odisha High Court order which released the accused on interim bail for 45 days. The court directed the accused to be enlarged on bail until the case’s final disposal.

A bench of Justices Abhay S Oka and Pankaj Mithal said that when a court concludes that the accused is entitled to be enlarged on bail pending trial, granting bail only for a limited duration is illegal. Such orders violate the right to liberty under Article 21 of the Constitution of India, the bench said.

Bail to Teesta Setalvad

This year, the Supreme Court granted regular bail to activist Teesta Setalvad, in connection with her alleged role in fabricating evidence in the 2002 Gujarat riots case. A three-judge bench of Justices BR Gavai, AS Bopanna and Dipankar Datta noted that Teesta Setalvad’s custodial interrogation was not necessary. Further, the court cancelled the Gujarat High Court order that had denied bail to her.

Setalvad was taken into custody on June 25, 2022, in a case registered by the Ahmedabad crime branch police for allegedly fabricating evidence to frame innocent people in the post-Godhra riots cases.

When Supreme Court granted bail to M3M directors

In October 2023, the Supreme Court granted bail to Basant Bansal and Pankaj Bansal, directors of the Gurugram-based realty group M3M, in a money-laundering case. The court said that the Enforcement Directorate’s actions in curbing money laundering should be fair, stringent, and non-vindictive.

A bench of Justices AS Bopanna and Sanjay Kumar observed that this reflected poorly on the Enforcement Directorate’s style of functioning. The bench said that probe agency ED is the premier investigating agency probing money-laundering cases and their every action is expected to be transparent and fair.

When Supreme Court granted bail to Bengal school recruitment scam accused

The Supreme Court granted bail to Prasanna Roy, arrested by the CBI in the Bengal school recruitment scam. Roy was accused of being a middleman between job aspirants and the prime accused, Partha Chatterjee.

The court noted that there was little chance of commencement of trial in the near future. A Bench of Justices CT Ravikumar and Sanjay Kumar noted that Roy had already undergone imprisonment of more than one year and the court was yet to take cognizance of the chargesheet.

When Supreme Court granted bail to former cop in the Antilia bomb scare case

In August 2023, the Supreme Court granted bail to former Mumbai Police officer, Pradeep Sharma, in connection with the Antilia bomb scare case.

A bench led by Justice AS Bopanna granted bail to Sharma, who was arrested earlier in the Antilia bomb scare case and the murder of a businessman, Mansukh Hiran. On June 5, the Supreme Court granted three weeks’ interim bail to Sharma, as his wife was scheduled to undergo a surgery.

When Supreme Court granted bail to accused in Shiv Sena leader’s murder case

In August, the Supreme Court granted bail to one Suraj Vijay Agarwal, accused in the murder of a Shiv Sena leader Rahul Shetty, in 2020. A bench led by Justice BR Gavai allowed the bail plea to Agarwal, who had been in custody since 2020. The court granted him bail observing that the other accused in the case had also been granted bail.

When Supreme Court granted bail to Elgar Parishad case accused

In July, the Supreme Court granted bail to Vernon Gonsalves and Arun Ferreira, the two accused in the Elgar Parishad conspiracy case, who had been behind bars since August 2018, for alleged offenses under the Unlawful Activities (Prevention) Act, 1967.

A bench of Justices Aniruddha Bose and Sudhanshu Dhulia observed that while charges against the two were serious, this alone could not be a reason for denying bail, especially since the trial in the case had yet not begun.

The court concluded that the materials could not justify the continued detention of the appellants pending the outcome of the case.

When Supreme Court sent sessions judge to training for non-compliance with bail judgment

This year, the top court directed the Allahabad High Court to send a sessions court judge to a judicial academy for the upgradation of his skills. The court passed the direction while monitoring the compliance of its earlier judgment, when it issued directions regarding the arrest and grant of bail.

During the hearings, the court observed that even after months, the district judiciary has not complied with its directions.

When Supreme Court granted bail in skill development case

In November 2023, the Supreme Court granted bail to GVS Bhaskar Prasad, the former chief executive officer (CEO) at Siemens. The court granted him bail because all the accused in the case had already got bail and were cooperating with the investigating agencies. 

(Courtesy:- India Today, 31 December 2023)

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