Weekly Legal Updates ( 31 December to 6 January 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.

Petition filed in Supreme Court against new criminal laws passed by Parliament

A petition challenging the enactment of three new sets of law that seek to overhaul India’s penal codes has been filed in the Supreme Court, claiming they suffered from many “defects and discrepancies”. The Lok Sabha had on December 21 passed three key legislations — the Bharatiya Nyaya (Second) Sanhita, Bharatiya Nagarik Suraksha (Second) Sanhita, and the Bharatiya Sakshya (Second) Bills. President Droupadi Murmu gave her assent to the bills on December 25.

These new laws-the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Act-will replace the Indian Penal Code, the Code of Criminal Procedure
and the Indian Evidence Act.

While seeking a stay on the operation of the three laws, the PIL filed by advocate Vishal Tiwari said they were enacted without any parliamentary debate as most of the opposition members were under suspension. The plea has sought directions from the court to immediately constitute an expert committee to assess the viability of the three new criminal laws.

“The new criminal laws are far more draconian and establish police state in reality and violate every provision of fundamental rights of the people of India. If the British laws were considered colonial and draconian, then the Indian laws stand now far more draconian as in British period you could keep a person in police custody for a maximum of 15 days. Extending 15 days to 90 days and more, is a shocking provision enabling police torture,” the plea said.

The Bharatiya Nyaya Sanhita encompasses offences such as acts of secession, armed rebellion, subversive activities, separatist activities or endangering the sovereignty or unity in a new avatar of the sedition law.

According to the new laws, anyone purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, or otherwise, excites or attempts to excite secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.

According to IPC Section 124A, which deals with sedition, anyone involved in the crime may be punished with life imprisonment or with a three-year jail term. Under the new laws, ‘Rajdroh’ has got a new term ‘Deshdroh’, while doing away with the reference to the British crown. Loosely explained, Rajdroh refers to rebellion or an act against the ruler, while Deshdroh represents such acts against the nation.

Also, for the first time, the word terrorism has been defined in the Bharatiya Nyaya Sanhita. It was absent in the IPC. Under the new laws, the magistrate’s power to impose fines has been increased as well as the scope of declaring a proclaimed offender.

(Courtesy:- The Times of India, 1 January 2024)

Bihar caste survey break-up be put in public domain, rules Supreme Court

The Supreme Court on Tuesday asked the Bihar government to put in the public domain the break-up of the caste survey data to enable those aggrieved to challenge the findings.

A bench of Justices Sanjiv Khanna and Dipankar Datta refused to grant any interim relief to the petitioners who have challenged the caste survey and the Patna High Court order upholding the Bihar government’s decision to conduct such an exercise.

“There is no question of interim relief as they (the government) have a high court order in their favour. Now that the data has been put in public domain, there are two-three aspects which remain. First is the legal issue–correctness of the high court judgement and legality of such an exercise,” the bench said.

Senior advocate Raju Ramachandaran, appearing for the petitioners, said since the survey data is out, the authorities have started implementing it in the interim and raised the reservation for SCs, STs, Other Backward Classes, Extremely Backward Classes, and Economically Weaker Sections (EWS) to a total of 75 per cent from the existing 50 per cent.

The bench said this issue needs to be heard at length.

“As far as increasing the reservation is concerned, you have to challenge it before the high court,” the bench told Ramachandaran, who said it has already been contested before the high court.

Ramachandaran said the issue is important, and since the state government is acting upon the data, the matter be listed next week so that the petitioners can argue for interim relief.

“What interim relief? They (the Bihar government) have a high court judgement in their favour,” the bench said.

Senior advocate Shyam Divan, appearing for the Bihar government, said the data, including the break-up, has been put in the public domain and anyone can see it on the designated website.

Justice Khanna said, “What I am more worried about is the availability of break-up of data. To what extent the government can withhold the data. You see, the entire break-up of data should be in the public domain so that anyone can challenge the inference drawn from it. Unless it is in the public domain, they can’t challenge it.”

The BJP, the main opposition party in Bihar, has accused the Nitish Kumar government of irregularities in conducting the caste survey and called the data collected “fake”.

The bench then asked Divan to file a report on the caste survey and posted the matter for further hearing on February 5.

On October 6, 2023, the top court had questioned the Bihar government as to why it published its caste survey data. It had, however, refused to restrain the state government from making public further data, and said it may examine if the state has the power to conduct such an exercise.

It had issued a formal notice on a batch of pleas challenging the August 1, 2023 order of the Patna High Court that gave the go-ahead for the caste survey in Bihar.

It rejected the petitioners’ contention that the state government has already published some data preempting a stay. They had sought a complete stay on further publication of data.

On October 2, 2023, the Nitish Kumar government had released the findings of the caste survey, a move its detractors claimed was made keeping in mind the 2024 Parliamentary elections.

The data revealed that the OBCs and EBCs constituted a whopping 63 per cent of the state’s population.

According to the data released, the state’s total population stood at a little over 13.07 crore, out of which the Extremely Backward Classes (36 per cent) were the largest social segment followed by the Other Backward Classes at 27.13 per cent.

The survey also said the Yadavs, the OBC group to which Deputy Chief Minister Tejashwi Yadav belongs, were the largest caste in terms of population, accounting for 14.27 per cent of the total.

Dalits accounted for 19.65 per cent of the total population in the state, which is also home to nearly 22 lakh (1.68 per cent) people belonging to the Scheduled Tribes.

On August 7, 2023, the top court had refused to stay the high court’s order giving the go-ahead for the caste survey.

Besides a plea by NGO ‘Ek Soch Ek Paryas’, several other petitions have been filed, including one by Nalanda-resident Akhilesh Kumar, who has contended that the notification issued by the state government for the exercise is against the constitutional mandate.

Kumar’s petition says, according to the constitutional mandate, only the Union government is empowered to conduct a census.

The high court had said in its 101-page verdict, “We find the action of the state to be perfectly valid, initiated with due competence with the legitimate aim of providing development with justice.”

(Courtesy:- Hindustan Times, 2 January 2024)

SC issues guidelines for courts: Don’t humiliate govt officials or summon them as first resort

The Supreme Court Wednesday cautioned courts against “routinely” summoning or “humiliating” government officials, laying down an elaborate set of guidelines that underlined the need to cultivate an “environment of respect”.

The standard operating procedures (SOPs), drawn up by a three-judge bench presided by Chief Justice of India D Y Chandrachud, were necessitated by an April 2023 Allahabad High Court order under which senior Uttar Pradesh government officials were taken into custody and faced bailable warrants — all over the notification of rules on domestic helps for former high court judges.

The top court, while pulling up the Allahabad High Court over the issue, said in the guidelines that courts should refrain from passing remarks that can humiliate government officials or making comments on their clothes, appearance, education or social standing.

The bench, also comprising Justices J B Pardiwala and Manoj Misra, said the physical presence of officials may be required in proceedings involving evidence such as documents or oral statements. Except in these cases, “if the issues can be addressed through affidavits and other documents, physical presence may not be necessary and should not be directed as a routine measure,” said the SOP.It said that presence of a government official may be directed in cases where the court is satisfied that specific information is not being provided or if the correct position is being suppressed or misrepresented.

The SC said that “in exceptional cases wherein the in-person appearance of a government official is called for… the court should allow as a first option, the officer to appear before it through video conferencing” and that when personal presence is directed, reasons for the same should be recorded.

The official concerned should be given due notice so that he has sufficient time to prepare, the bench said adding courts should, to the extent possible, also designate a specific time slot for the appearance.

“Government officials participating in the proceedings need not stand throughout the hearing. Standing should be required only when the official is responding to or making statements in court”, said the SOP.

The SOP stated: “Courts must cultivate an environment of respect and professionalism. Comments on the dress of the official appearing before the court should be avoided unless there is a violation of the specified dress code applicable to their office”.

Among others, the SOP also calls upon courts to exercise caution and restraint when initiating contempt proceedings against government officials.

In the Uttar Pradesh matter last year, the Finance Secretary and Finance Special Secretary were taken into custody and bailable warrants were issued against the Chief Secretary and the Additional Chief Secretary (Finance). This was over non-compliance with the Allahabad High Court’s April 4 direction to the state government to notify rules proposed by the Chief Justice on ‘Domestic Help to Former Chief Justices and Former Judges of the Allahabad High Court’.

The state government moved an application before the court seeking the rollback of the April 4 order. It highlighted legal obstacles in complying with the directions, but the HC went ahead with the action against the officials.

Deciding on the state’s plea against this, the top court made it clear that the high court did not have the power to direct the state government to notify the rules.

“The Chief Justice did not have the competence to frame the rules under Article 229 of the Constitution. Further, the High Court, acting on the judicial side, does not have the power to direct the Government to frame rules proposed by it on the administrative side”

Disapproving of the “conduct” of the High Court in “frequently summoning” officials of the Uttar Pradesh government, the SC said: “Appearance of government officials before courts must not be reduced to a routine measure in cases where the government is a party and can only be resorted to in limited circumstances. The use of the power to summon the presence of government officials must not be used as a tool to pressurize the government, particularly, under the threat of contempt”.

It said: “The issuance of bailable warrants by the High Court against officials, including the Chief Secretary, who was not even summoned in the first place, further indicates the attempt by the High Court to unduly pressurize the government” and “runs contrary to the scheme envisaged by the Constitution”.

Sounding a note of caution, the SC said: “Courts must refrain from summoning officials as the first resort. While the actions and decisions of public officials are subject to judicial review, summoning officials frequently without just cause is not permissible… Courts across the country must foster an environment of respect and professionalism…”.

(Courtesy:- The Indian Express, 3 January 2024)

Prior and post facto environment clearance for projects cannot co-exist: Supreme Court

Prior and post facto environment clearance for projects cannot co-exist as they are “mutually destructive and an oxymoron”, petitioners told the SC on Tuesday, challenging the validity of an office memorandum of the ministry of environment, forest and climate change allowing post facto clearances.

Environment impact assessement for a project “can only take place before commencement of activity and not after, and that the EC is an approval which is taken prior to commencement of activity and emanates from precautionary principle which is one of the cornerstones of environmental jurisprudence”, senior advocate Gopal Shankaranarayanan told the bench. In 2017, the government provided a six-month window for alleged violators to apply for post facto clearances.

This was stayed by the Madras HC. On July 7, 2021, the ministry issued standard operating procedures for processing EIA applications allowing ex post facto environment clearance through the back door, leading to the HC staying its operation. “When an independent question of one Bokaro project came up in the SC in December 2021, the SC said although the Madras HC stay was not challenged, it anyway applied only to Tamil Nadu,” Shankaranarayanan said.

“Using this observation, the ministry issued an OM on January 28, 2022, saying SC had restricted the HC’s interim order only to Tamil Nadu and started clearing a whole bunch of mining projects with ex-post facto clearance,” he claimed.

The NGO, while challenging the validity of the office memorandum, had sought a direction to the ministry and state environment impact assessment authorities “not to process and entertain any application for grant of ex post facto environment clearance on applications filed after April 13, 2018 (the window permitted under the March 14, 2017 notification as extended by the Madras HC).

(Courtesy:- The Times of India, 3 January 2024)

Governor has to act on recommendation of council of ministers: SC on plea to remove Senthil Balaji

The governor of a state has to act on the recommendation of the council of ministers, the Supreme Court said on Friday while dismissing an appeal challenging the decision of the Madras High Court refusing to consider a petition against the continuance of V Senthil Balaji as a minister in the Tamil Nadu government despite his arrest.

A bench of Justices Abhay S Oka and Ujjal Bhuyan said no interference was called for by the apex court, which concurs with the view taken by the high court.

“Prima facie, the high court is right that the Governor could not have dismissed the minister. The Governor has to act on the recommendation of the council of ministers. After having heard the petitioner in person and perusing the impugned judgement of the high court, we concur with the view taken by the high court. Therefore no interference is called for under Article 136 of the Constitution,” the bench said.

Article 136 refers to the discretionary powers of the Supreme Court to allow special leave petitions.

The top court was hearing an appeal filed by advocate M L Ravi against an order of the Madras High Court refusing to issue a direction on his petition for quashing Tamil Nadu Governor R N Ravi’s order keeping in abeyance his earlier order sacking Balaji from the ministry.

Ravi, who has been locked in an intermittent tussle with the state’s DMK government on several issues, had in June 2023 “dismissed” Balaji from the council of ministers “with immediate effect”, but as criticism mounted over his action, he informed Chief Minister M K Stalin that he wanted to keep his decision in abeyance.

While referring to the governor’s discretionary powers in such matters, the high court had said, “If the Governor chooses to ‘withdraw his pleasure’ in respect of a Minister, he must exercise his discretion with the knowledge of the Chief Minister and not unilaterally. In the present case, the Chief Minister had never consented for the exercise of discretion by the Governor.”

On the petitioner’s submissions about Balaji’s disqualification, the high court had said in the absence of any statutory disqualification incurred by him, it would not be permissible for the court to issue directions to the governor to decide in a particular manner.

“Moreover, it would also be a matter of debate as to whether the Governor can unilaterally disqualify a person officiating as a Minister, though he has not incurred any disqualification under the Constitution of India or under any statute,” the high court had said.

Balaji was arrested on June 14 last year by the Enforcement Directorate in a money laundering case linked to a cash-for-jobs scam when he was the transport minister under an earlier AIADMK government.

Balaji was divested of his portfolios after his arrest but continues to be a minister.

(Courtesy:- India Today, 5 January 2024)

2 whiskey bottles displayed before Chief Justice in Supreme Court in a Trade Mark Case

CJI Chandrachud was hearing an appeal in a trademark violation case, involving two liquor manufacturers, when Senior Advocate Mukul Rohatgi displayed two whiskey bottles to prove the infringements.

Chief Justice of India DY Chandrachud was foxed when two whiskey bottles were produced before him during the hearing of a trademark violation row between two liquor companies on Friday.

A three-judge bench headed by the CJI was hearing an appeal against the Madhya Pradesh High Court order that rejected liquor company Pernod Ricard’s appeal to prevent an Indore-based company, JK Enterprises, from manufacturing beverages under the ‘London Pride’ name.

As soon as the hearing began, Senior Advocate Mukul Rohatgi requested the bench to allow him to bring the products inside the court.

The Senior Advocate then proceeded to place the two liquor bottles on his table, where he was arguing.

Seeing this unusual spectacle, the CJI, who was sharing the bench with Justices JB Pardiwala and Manoj Mishra, laughed out loud, and said, “You brought bottles with you?”

Responding in the affirmative, Rohatgi said he had to show the similarity between the two products. He then explained how there was a trademark violation in this case.

The CJI then remarked, “The issue is about the trade dress here. One of my judgments in Bombay has this aspect covered wherein the shape of the bottle was involved.”

The bench then issued a notice and stayed the order of the Madhya Pradesh High Court and slated the hearing after two weeks.
After the notice was issued, Rohtagi asked the CJI if he could take the bottles with him. The CJI smiled and said, “Yes, please.”

In November last year, the Madhya Pradesh High Court had rejected liquor company Pernod Ricard’s appeal to prevent an Indore-based JK Enterprises from manufacturing alcoholic beverages under the ‘London Pride’ trademark.

Ricard had requested the court for a temporary injunction against JK Enterprises, claiming they have violated the ‘Blenders Pride’ trademark and the appearance of the ‘Imperial Blue’ bottle.

Ricard had accused JK Enterprises of using the ‘London Pride’ mark to deceive its customers.

The High Court had then said the products of the two brands involve premium or ultra-premium whiskies whose consumers are an educated and discerning type.

“It can be safely presumed with a sufficient deal of certainty that the consumers of such products would be mostly literate and have reasonable intelligence to distinguish between the bottles of Blenders Pride/Imperial Blue and those of London Pride,” the bench observed in its order.

(Courtesy:- India Today, 5 January 2024)

Calcutta HC advice to girls to check sexual urges wrong: Supreme Court

Supreme Court Thursday said some observations made by Calcutta HC, including that “adolescent girls must control their sexual urges instead of giving in to two minutes of pleasure”, were wrong and problematic.

As the West Bengal government said it had filed an appeal against the controversial judgment, a bench of Justices Abhay S Oka and Ujjal Bhuyan said it would club its suo motu proceedings
with the state’s appeal and decide the issue. It said the HC had wrongly invoked Section 482 of Criminal Procedure Code and adjourned the hearing.

“The order sends absolutely wrong signals. What kind of principles are the judges applying under Section 482?” the bench asked. Section 482 talks about the inherent powers of HCs to “make such orders as may be necessary to prevent abuse of the process of any court or to secure the ends of justice”.

The SC had taken suo motu cognisance of the order and had said on December 8 that judges were supposed to decide a case on the basis of law and facts, and should not resort to preaching in judicial proceedings. It had also questioned the validity of the HC order acquitting the accused who was booked under the IPC and Pocso Act.

“In an appeal against conviction, the HC was called upon to decide only the merits of the appeal and nothing else. Prima facie, we are of the view that in such a case, the judges are not expected to either express their personal views or preach. After having carefully perused the judgment, we find that many parts thereof, including para 30.3, are highly objectionable and completely unwarranted. The said observations are completely in violation of rights of adolescents under Article 21 of the Constitution,” the bench said.

(Courtesy:- The Times of India, 5 January 2024)

‘Can’t take terror issues lightly’: Default bail in UAPA case irks Supreme Court

Frowning upon Delhi high court’s order granting default bail to an accused facing charges under the Unlawful Activities (Prevention) Act who was allegedly planning to cross the border to Pakistan for weapons training, the Supreme Court quashed the verdict and said such matters should not be taken lightly by courts as they involved terrorist activities.

A bench of Justices Vikram Nath and Rajesh Bindal said that the HC wrongly relied upon the apex court’s 1994 verdict in a TADA case and ignored its 2019 verdict in a UAPA case in which it held that extension for investigation could be granted up to a maximum period of 180 days in UAPA cases.

The accused has been charged under various provisions of Indian Penal Code, UAPA and Arms Act. He was granted default bail by the HC on grounds of delay in completing the probe.

“One more aspect to be considered is the nature of offence which involved terrorist activities having not only pan-India impact but also impact on other enemy states. The matter should not have been taken so lightly,” the bench said and directed that the accused be taken into custody forthwith.

“Provisions of Section 43D(2)(b) were considered by this court in the case of state of Maharashtra vs Surendra Pundlik Gadling and others. In the said case, the FSL report was awaited and it also required detention of the accused wherein financial details of the respondent were still being ascertained in view of the huge conspiracy spreading over a number of cities were being investigated. The high court failed to take into consideration the above judgment of 2019 relating to UAPA. It had relied upon a judgment of 1994 relating to provisions of TADA,” the bench said.

(Courtesy:- India Today, 5 January 2024)

Supreme Court dismisses plea seeking to declare Netaji as ‘son of the nation’

Leaders like Netaji Subhas Chandra Bose are “immortal” and do not need bestowing of a recognition through a judicial diktat, the Supreme Court said on Friday, refusing to entertain a public interest litigation (PIL) that sought a directive to declare Bose a “son of the nation” and an apology from the Congress for allegedly belittling his role in India’s freedom struggle and not revealing the truth about his disappearance or death.

According to the top court, judicial orders for a declaration to acknowledge Bose’s role in the country’s freedom struggle would be improper, for it may not be compatible with the stature of a leader like him to need a word of recognition from a court of law.

“Who does not know a leader like Netaji? Everyone in the country knows him and his contribution. You don’t need a declaration from the court of his greatness. Leaders like him are immortal,” said a bench of justices Surya Kant and KV Viswanathan.

The court was hearing a PIL by Cuttack-based Pinak Pani Mohanty, who sought a declaration from the court that independence from British rule was attained by Bose-led Indian National Army (Azad Hind Fauz). Mohanty’s petition questioned the Congress’s role in recognising Bose’s contribution, adding the political party chose to keep the files on Bose’s disappearance/death under wraps.

The PIL demanded that the Union government should declare Bose’s birthday on January 23 as a “national day” and the leader as a “son of the nation”.

The bench, during the hearing, told Mohanty that iconic freedom fighters like Bose did not have to wait for an order of a court to the authorities for a commendation of their role. “Leaders like him are in fact beyond the grant of recognition by any court. They are great people and not just us, the entire county owes to leaders like him,” said justice Kant, speaking in Hindi.

While Mohanty said that the court should issue notice to the government to grant recognition due to Bose, the bench responded that the declarations that the petitioner wanted were in the realm of policy decisions. “Besides, even the family may not take it as a matter of pride that a court had to intervene,” it added.

The bench also referred to the Supreme Court’s order in 1997 when a controversy over awarding Bharat Ratna “posthumously” to Bose had reached the top court. The petitioner in the case, Bijan Ghosh, had taken strong exception to the use of the word “posthumously” in the 1992 press communique intending to confer the highest civilian award on Bose, arguing the Government of India was yet to officially accept the alleged report of Bose’s death in an air-crash in Taiwan in August 1945. At the time, the family members of Bose had also conveyed to the government their unhappiness at the announcement and expressed their unwillingness to accept such an award.

In its judgment in 1997, the court took on record the Centre’s statement that in deference to the sentiments expressed by the public and by the members of the family of Bose, the government did not proceed further to confer the award and wrapped up the petition. The court had further refused to go into the issue as to whether there was enough material to conclude that Bose died either in the 1945 air-crash or at any time thereafter.

Citing the 1997 judgment, the bench on Friday told Mohanty that he ought not to raise the issues surrounding the disappearance or death of Bose. “All this has already been dealt with by this court in 1997. You should have read that judgment before raising such issues here. If you want the government to do something, approach suitable authorities,” the court told Mohanty.

It allowed Mohanty to withdraw his PIL with a liberty to avail of appropriate remedies, including the recourse of moving a representation to the authorities.

The circumstances of Bose’s death are still the subject of many theories and suppositions despite the passage of time. While two commissions of inquiry had concluded that Netaji had died in a plane crash in Taipei on August 18, 1945, a third probe panel, headed by Justice MK Mukherjee, had contested it and suggested in its 2006 report that Bose was alive after that.

In 2015, the government announced that it would declassify the files relating to Bose, following which several files were made public by the Prime Minister’s Office (PMO) and the ministries of home affairs and external affairs. These files were later put on digital display at the National Archives of India (NAI) in the national capital.

Subsequently, the Union government approached all foreign governments to declassify their files on Bose. Union minister Kiren Rijiju informed Parliament in April 2016 that, in response, Austria, Germany, Russia, the UK and the US had said that all their files on Netaji had been put in the public domain. Japan, however, said that though they had five secret files, only two could be declassified for now as per their internal review mechanism.

(Courtesy:- Hindustan Times, 6 January 2024)

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