Weekly Legal Updates (3 September to 9 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.

India Or Bharat? Supreme Court Had Said This In 2016

The citizens are free to call the country India or Bharat as per their wishes, the Supreme Court had said in 2016 while dismissing a PIL which sought a direction that India be called ‘Bharat’ for all purposes.

The top court’s summary dismissal of the PIL becomes relevant in view of a massive nation-wide debate which got triggered following the G20 dinner invitation from President Droupadi Murmu describing her position as ‘President of Bharat’.

“Bharat or India? You want to call it Bharat, go right ahead. Someone wants to call it India, let him call it India,” a bench of Chief Justice TS Thakur and Justice UU Lalit, both retired, had observed while trashing the PIL filed by Niranjan Bhatwal from Maharashtra.

The Centre, facing opposition criticism over the G20 invite, had told the top court in November 2015 that the country does not have to be called ‘Bharat’ instead of ‘India’.

It had said, “There is no change in circumstances to consider any change in Article 1 of the Constitution of India.” Article 1(1) of the Constitution says, “India, that is Bharat, shall be a Union of States.” Opposing the PIL, the Ministry of Home Affairs (MHA) had said issues regarding the country’s name were deliberated upon extensively by the Constituent Assembly during the drafting of the Constitution and clauses in Article 1 were adopted unanimously.

It had said there was no change in circumstances since the Constituent Assembly debated the issue to warrant a review.

The Supreme Court had also taken strong exception to the petitioner and asked him whether he thinks it has nothing else to do, and reminded him that public interest litigations are meant for poor.

“The PIL is for poor people. You think we have nothing else to do,” the bench had said on March 11, 2016.

The petition had also sought a direction to NGOs and corporates that they use the term Bharat for all official and unofficial purposes.

The PIL had said the prominent suggestions before the Constituent Assembly for naming the country were “Bharat, Hindustan, Hind and Bharatbhumi or Bharatvarsh and names of that kind”.

(Courtesy:- NDTV, 5 September 2023)

Supreme Court: India’s statute, not J&K’s, let Parliament make laws for J&K

A five-judge Supreme Court bench comprising Chief Justice D Y Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai and Surya Kant on Tuesday ordered the conclusion of arguments on scrapping Article 370 and bifurcating J&K into two UTs in 2019 after hearing rejoinders from petitioners’ counsel Kapil Sibal, Gopal Subramaniam, Rajeev Dhawan, Zaffar Mohd Shah and Dushyant Dave.

The Centre and supporters of the decision in many intervenors through attorney general R Venkataramani, solicitor general Tushar Mehta, senior advocates Harish Salve, Rakesh Dwivedi, V
Giri, Mahesh Jethmalani and Guru Krishna Kumar and others took just five and a half days to elaborate the validly exercised power to skeletonise Article 370 to make J&K’s integration with India complete and its bifurcation to preserve territorial integrity.

To a query from the bench, the Union government had informed the court that it was ready to conduct assembly elections for J&K UT and detailed the commencement of the process by first putting in place people’s representatives at the grassroots-level democratic institutions. “We are ready to hold elections to the J&K UT assembly at any time and that a call in that regard would have to be taken by the state and central Election Commissions,” the SG had informed the SC.

However, Mehta had said that though it is a solemn promise of the Union government to the Parliament to restore statehood to J&K UT, it would take some time till the goal of bringing normalcy to the decades-long terrorism affected erstwhile state is achieved. The government had also indicated that Ladakh would continue to remain a UT even after J&K gets back statehood .

On Tuesday, National Conference MP Mohammad Akbar Lone’s counsel Sibal cited certain letters exchanged between Sardar Vallavbhai Patel, Jawaharlal Nehru and N Gopalaswami Ayyangar to make a startling claim that Patel “was the architect of Article 370”. The CJI asked Sibal to read another letter where Patel appears to have expressed his serious reservations on giving special status to J&K under Article 370, a letter which was highlighted by Mehta, who did the bulk of arguments for the Union government.

The SC had, throughout the hearing, maintained that the Indian Constitution was supreme, J&K was an integral part of India, and that its Constitution was subordinate to that of India. On Tuesday it said, “The power to apply provisions of the Indian Constitution to J&K is found in the Constitution of India and not in the J&K Constitution. The domain of Parliament to make laws for J&K is found in the Indian Constitution and not in that of J&K.”

(Courtesy:- The Times of India, 6 September 2023)

Supreme Court takes notice of Chhattisgarh teacher recruitment matter

The School Education Department of Chhattisgarh is currently embroiled in a legal controversy stemming from its teacher recruitment notification, issued on May 4, 2023. At the heart of the dispute is the omission of subject-wise graduation requirements for teaching positions, raising concerns that unqualified candidates could be assigned to teach subjects outside their expertise. The Supreme Court has issued notice to the state government, along with a stay application filed
alongside the petition. The state government has been directed to file its response to both the petition and the stay application within four weeks.

The notification and advertisement for teacher recruitment were initially challenged before the High Court of Chhattisgarh. The primary contention against the notification was the lack of specific subject-wise graduation requirements for teaching posts, allowing candidates with degrees in
unrelated fields to apply for positions where their qualifications might not be appropriate. For instance, a Sanskrit graduate could potentially teach mathematics, and vice versa.

Another ground for challenging the notification was the argument that only a legislative amendment could bring about the necessary changes to the 2019 Recruitment Rules. It was asserted that departmental notifications and Cabinet notes should not supersede legislative enactments.However, the High Court of Chhattisgarh dismissed the petition challenging the notification, citing it as a policy decision within the purview of the state government and therefore not subject to judicial interference.

In response, the petitioner, represented by counsels Kaustubh Shukla and Ajay Shrivastava, filed a special leave petition before the Supreme Court challenging the High Court’s decision. The petitioner contended that the Chhattisgarh government’s notification and advertisement for teacher recruitment were compromising the quality of education in the state, particularly during the crucial formative years of child development. They argued that allowing incompetent teachers to teach unrelated subjects, such as a Hindi or Sanskrit graduate teaching mathematics or science, would lower the overall quality of education.

Furthermore, it was asserted that the notification violated the Right to Education Act by diminishing the quality of education provided by the state government. The petitioner also argued that only the legislative assembly could amend the recruitment rules, and the amendment did not align with the educational goals of both state and central authorities. This, they contended, constituted a grave violation of children’s fundamental right to quality education.

The case was scheduled for hearing on September 4, 2023, before the Bench of Justice J K Maheshwari and Justice K V Vishwanathan. Following a thorough consideration of the arguments presented by counsel Shukla, the Supreme Court issued notices to the state government, along with a stay application filed alongside the petition. The state government has been directed to file its response to both the petition and the stay application within four weeks.

Notably, the recruitment of teachers in the Chhattisgarh Government’s Education Department, as outlined in the May 4, 2023, notification and advertisement, was highlighted as a flagship recruitment scheme during the Rajiv Yuva Mitan Sammelan on September 2, 2023. The case remains pending before the Supreme Court, with further proceedings set to take place after four weeks.

(Courtesy:- The Times of India, 7 September 2023)

Persons violating court orders deserve no mercy: Supreme Court

The apex court sounded this warning while deciding a case from the Gujarat high court which sentenced five persons under the Contempt of Courts Act, 1971 for breaching an oral undertaking given to the court in 2015. The HC order of July 13, 2022 sentenced three persons to undergo 2 months simple imprisonment and two others to pay ₹1 lakh in lieu of sentencing. A fine of ₹2,000 was uniformly imposed on all contemnors. Simultaneously, the HC cancelled all sale agreements made in violation of the 2015 undertaking.

Upholding the HC order, a bench of justices JB Pardiwala and Manoj Misra said, “The sanctity to judicial proceedings is paramount to a society governed by law. Otherwise, the very edifice of democracy breaks and anarchy reigns.”

The bench directed the contemnors to undergo the sentence as awarded by the HC and said, “The 1971 Act intends to secure confidence of the people in the administration of justice by disciplining those erring in disobeying the orders of the Court/undertaking given to court. The litigating public cannot be encouraged that such a situation can continue or the court will not rise to the occasion to book people violating its orders.”

Noting a disturbing trend of courts accepting apologies offered by persons found guilty under the Act, the bench said, “There ought not to be a tendency by courts to show compassion when disobedience of an undertaking or an order is with impunity and with total consciousness.”

The judges said that the litigants who proceeded for contempt of court realised that they have a very potent weapon in their hands in the form of apology. The Court took judicial notice of the fact that over a period of time, courts have shown “undue leniency and magnanimity” towards contemnors.

Justice Pardiwala, authoring the 83-page judgment, said, “This lenient attitude shown by the courts over a period of time has actually emboldened unscrupulous litigants to disobey or commit breach of the order passed by any court or any undertaking given to the court with impunity.”

In the present case, the four contemnors accepted that their action in selling off the property in breach of the undertaking to Court was a big mistake. “The law is very clear that the court should not get compassionate and dilute an indictment and not follow it with conviction. The fact that the appellants have committed contempt is not in doubt. The law enjoins that a punishment must follow.”

Section 12 of the 1971 Act provides for punishment for committing contempt of Court. Once convinced that the order or undertaking given to Court is breached, a simple imprisonment for a term extending up to 6 months may be awarded or fine extending up to ₹2,000 or both. This provision allows Court to let go a contemnor on an apology being made which is bona fide (in good faith).

The top court said, “Apology is not just a word. The court should not accept the apology when it appears that saying sorry is nothing but a legal trick to wriggle out of responsibility. In the absence of a deep ethical act of introspection, self-introspection, atonement and self-reform. any apology will be farce, the Court held.

Referring to past decisions, the ruling reiterated that no court is bound to accept as a matter of course. “Although, the apology may be unconditional, unqualified and bona fide, yet, if the conduct is serious which has caused damage to the dignity of the institution the same need not to be accepted,” the Court held.

In the present case, the Supreme Court ourt was convinced that the apology offered by the contemnors was a “gamble” and a “calculated risk” to escape legal consequences for their alleged act of contempt after pocketing a sizeable amount towards the sale consideration obtained from the purchasers.

(Courtesy:- Hindustan Times, 7 September 2023)

Supreme Court Releases Man Jailed For 12 Years After Finding He Was Juvenile At Time Of Offence

The Supreme Court has ordered the release of a man who has already served over 12 years in jail after being awarded a life sentence in a murder case, holding that he was a juvenile when the offence was committed in 2005.

A bench headed by Justice B R Gavai referred to a May 2023 report of an additional sessions judge, who was asked to conduct an inquiry with regard to the plea of juvenility raised by the man, which said his date of birth was May 2, 1989.

“If the date of birth of the petitioner is May 2, 1989, he was 16 years and seven months old as of the date of the crime, i.e., December 21, 2005. Accordingly, the petitioner was a juvenile in conflict with the law on the date of commission of the offence,” the bench, also comprising Justices P S Narasimha and Sanjay Kumar, said in an order passed on September 5.

The Supreme Court delivered its order on a plea filed by the petitioner seeking verification of his claim of juvenility and consequential orders as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.

According to the provisions of the 2000 Act, the maximum period for which the petitioner could have been in custody is three years.

“However, as the plea of juvenility was raised for the first time in the present writ petition (filed in 2022) before us, the process of criminal law, which commenced in 2005, led to the petitioner being convicted and sentenced for life imprisonment concurrently by the trial court, the high court, as well as the Supreme Court,” the bench said.

It said the petitioner has spent over 12 years in jail.

“Having accepted the report of the II Additional Sessions Judge, Khammam, the petitioner can no longer be incarcerated. In view of the above, we allow the writ petition and direct that the petitioner be released forthwith if he is not required to be detained in any other case,” the bench said.

The Supreme Court noted that it is well settled that the question of juvenility can be raised before any court and at any stage, as prescribed under Section 7A(1) of the Juvenile Justice Act, 2000, and confirmed by judicial precedents.

It said the petitioner was arrayed as an accused along with others in the case, and a trial court had in December 2009 convicted him and others and sentenced them to life imprisonment.

The Supreme Court noted the high court, and later the top court affirmed his conviction and sentence.

It was also noted that two months after the Supreme Court passed the order in July 2022, the petitioner filed a petition seeking a direction to the state to verify his claim of juvenility.

The bench said the state had filed an affidavit stating that the petitioner had studied at a school in Andhra Pradesh from 1st to 3rd standard and that his date of birth was May 2, 1989.

Post a comment”Since the juvenility was based on the petitioner’s school documents, this court considered it appropriate to direct the Additional Sessions Judge (Fast Track Court), Khammam, Andhra Pradesh, to conduct an inquiry with regard to the plea of juvenility raised by the petitioner,” it said.

(Courtesy:- NDTV, 8 September 2023)

‘Can turn the clock back’: Supreme Court on Ladakh-National Conference symbol row

The Supreme Court asserted its power to “turn the clocks back and restore the status quo ante” in the Ladakh Union territory after the administration on Wednesday refused the National Conference its ‘plough’ symbol for the upcoming local elections.

“This court can.. turn the clock back… even restore status quo ante… if the situation warrants such dire measures,” the Supreme Court bench of Justices Ahsanuddin Amanullah and Vikram Nath noted in a 51-page judgement passed on Wednesday.

On Wednesday, a bench comprising Justices Vikram Nath and Ahsanuddin Amanullah dismissed the plea by the Ladakh administration opposing the allotment of the ‘plough’ symbol to the National Conference and imposed a cost of Rs 1 lakh on it.

The court condemned the administration’s non-compliance with a Jammu and Kashmir and Ladakh (J&K) high court order as “unprecedented”. “No litigant should have even an iota of doubt…. that just because of systemic delay… and passage of time, (the) cause would be defeated and the court would be rendered helpless to ensure justice,” the court said in its statement.

The Supreme Court was hearing a Special Leave Petition from the Ladakh administration against a Single bench of J&K High Court order, that permitted the National Conference to use its ‘Plough’ symbol in the upcoming Ladakh Autonomous Hill Development Council-Kargil (LAHDC-K) elections. The high court order was upheld by its division bench.

The Ladakh administration, led by Lieutenant Governor BD Mishra, however, declined to grant the ‘plough’ symbol to the party. The Supreme Court ruled that the National Conference has a right to the ‘Plough’ symbol and held the administration ‘solely responsible’ for the legal imbroglio.

Despite the Election Commission of India (ECI) not officially designating the National Conference as a state party for Ladakh, the Supreme Court affirmed the party’s entitlement to use the ‘Plough’ symbol.

The Supreme Court took up the petitions for hearing this case after a nearly four-year delay, and reserved its judgment on the matter.

The Ladakh administration’s refusal to grant the ‘plough’ symbol to the National Conference is being seen as a deliberate strategy to sideline Kashmir-based mainstream political parties from participating in any electoral processes in Ladakh.

This issue has gained significance, particularly in the context of Ladakh’s status change in 2019, when it was transformed into a Union territory without a legislative assembly.

(Courtesy:- India Today, 8 September 2023)

Courts must be on guard, test evidence meticulously when FIR is delayed: Supreme Court

The Supreme Court acquitted two people whose conviction and life sentence for the offence of murder in a case lodged in 1989 was affirmed by the Chhattisgarh High Court.

Courts must be on guard and test evidence meticulously to rule out possibility of embellishments in the prosecution’s story when an FIR is delayed and there is absence of proper explanation, the Supreme Court has said.

The apex court acquitted two people whose conviction and life sentence for the offence of murder in a case lodged in 1989 was affirmed by the Chhattisgarh High Court.

A bench of justices J B Pardiwala and Manoj Misra noted that the accused were tried for allegedly murdering a man on August 25, 1989, while the FIR in the case was lodged the next day in Bilaspur district.

“When an FIR is delayed, in absence of proper explanation, the courts must be on guard and test the evidence meticulously to rule out possibility of embellishments in the prosecution story, inasmuch as delay gives opportunity for deliberation and guess work,” the bench said in its verdict delivered on September 5.

“More so, in a case where probability of no one witnessing the incident is high, such as in a case of night occurrence in an open place or a public street,” it said.

The bench delivered its verdict on the appeals filed by appellants — Harilal and Parasram — challenging the February 2010 judgment of the high court which had affirmed the July 1991 order of a trial court convicting and sentencing them to life imprisonment for murder.

It noted that three people were tried for allegedly committing the murder and the trial court had convicted all of them.

They had filed separate appeals before the high court challenging their conviction, the bench noted, adding that proceedings against one of them stood abated consequent to his death during pendency of the appeal.

“In this case, we notice from the record that the trial court as well as the high court while appreciating the evidence have not properly addressed various aspects, namely, (a) there is no clear cut motive proved against the accused except that there was some incident concerning a lady of the village…,” the bench observed.

It said although there might not have been a specific question put to the informant, who was a prosecution witness in the case, as regards the delay in lodging of the FIR, but the fact that “it was a delayed FIR cannot be ignored”.

The bench observed that the statement of one of the eyewitnesses of the incident was inconsistent with his previous statement. It would be unsafe to rely on his testimony to convict the accused for the offence of murder, it noted.

“No doubt, different people react differently to a given situation. But if it had truly been an issue between few individuals fighting on the street, natural course of human conduct would be to collect people to solve out issues,” the bench said.

“However, where villagers in general, and none in specific, assault a person accused of his involvement with a lady, it is quite natural for bystanders not to intervene,” it said.

The bench said the prosecution has not been able to convincingly prove the genesis of the crime and the manner in which the murder took place and by whom.

The bench observed that evidence led by the prosecution gives rise to a strong probability of the killing being a consequence of mob action on the deceased for his alleged involvement with the woman.

“The judgment and order of the high court as well as of the trial court are set-aside. The appellants are acquitted of the charge for which they have been tried,” it said, while allowing the appeals.

The apex court noted the appellants are reported to have been released on bail during the pendency of appeal and they need not surrender.

“In case they are not on bail, they shall be released forthwith unless wanted in any other case,” it said.

(Courtesy:- The Telegraph Online, 9 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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