Weekly Legal Updates ( 7 January to 13 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.

Pakistan Supreme Court upholds late military ruler Pervez Musharraf’s death sentence in treason case

Pakistan’s Supreme Court on Wednesday upheld late former military ruler General Pervez Musharraf’s death sentence handed out to him by a special court in 2019 in the high treason case.

Musharraf, the architect of the Kargil War in 1999 and Pakistan’s last military ruler died on February 5 in Dubai after a prolonged illness. The 79-year-old former president was undergoing treatment for amyloidosis in Dubai. He has been living in the UAE since 2016 in self-exile to avoid criminal charges back home.

A four-member bench headed by Chief Justice of Pakistan Qazi Faez Isa and comprising Justice Mansoor Ali Shah, Justice Aminuddin Khan and Justice Athar Minallah conducted the hearing.

On December 17, 2019, a special court handed out the death sentence to the former ruler after a case of high treason was filed against him during Pakistan Muslim League-Nawaz (PML-N) party’s tenure for his “unconstitutional” decision to impose an emergency in November 2007.

The apex court announced the reserved verdict on an appeal filed by the former ruler against the death sentence which was handed to him and declared ineffective for non-compliance.

(Courtesy:- Money Control, 10 January 2024)

Supreme Court refuses to stay new law on appointment of CEC, ECs

The Supreme Court on Friday refused to stay the operation of the new law providing for appointment of chief election commissioner (CEC) and election commissioners (ECs) by a panel that does not include the Chief Justice of India (CJI).

“We will not stay it… stay is not possible. It’s a statutory provision,” said a bench of justices Sanjiv Khanna and Dipankar Datta, even as it issued notice to the Union government and agreed to examine the matter.

Senior advocate Vikas Singh, appearing for Congress leader and petitioner Jaya Thakur, argued that the law is in the teeth of the separation of power and that it ought to be stayed before fresh appointments are made under the new law.

While the bench agreed to examine the issue, it remained emphatic that the operation of a law cannot be stayed at this stage. It fixed the next hearing of the matter in April.

Apart from Thakur, two other petitions by a group of lawyers have also challenged the validity of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 202, calling the law as being violative of the Constitution as it allegedly fails to preserve free and fair elections, which forms part of the basic structure of the Constitution.

President Droupadi Murmu had on December 28 given her assent to a bill that seeks to put in place a new mechanism for the appointment of CEC and ECs.

The new law has provisions to set up a search committee chaired by the Union law minister and two other persons not below the rank of secretary, to prepare a panel of five persons for consideration of the selection committee for appointment as CEC or ECs.

It provides for a selection committee, chaired by the Prime Minister, leader of Opposition and a union minister, to make recommendations to the President for appointment of CEC and other ECs.

The new law marked a major shift from a decision of a Constitution bench in March last year, which directed for inclusion of the CJI in the selection panel until Parliament came up with a new law.

The judgment in Anoop Baranwal Vs Union of India said that the selectin of CEC and ECS should be done by a panel headed by the Prime Minister and comprising two other members – leader of Opposition in Lok Sabha and the CJI to ensure transparency in the selection mechanism.

The apex court had then extensively referred to a similar mechanism for selection of the director of the Central Bureau of Investigation (CBI) and Lokpal while underlining the “devastating effect of continuing to leave appointments in the sole hands of the Executive”.

To be sure, the March 2, 2023 judgment by the Constitution bench was delivered in the absence of a law to regulate the appointment of the CEC and ECs, as mandated by the Constitution. Instead, the appointments were carried out through the 1991 Transaction of Business Act, which the court had noted, lacked objective standards regarding the selection and qualification of the CEC and ECs.

The petitions in the top court complained that by brushing aside the March 2023 judgment to include the CJI as a member of the high-powered selection committee and replacing him by a union minister to be nominated by the PM, the government has violated the principles of free and fair election.

“Institutions supporting constitutional democracy must have an independent mechanism for appointments of its heads and members… They are compromising free and fair elections with the exclusion of the Chief Justice of India from the committee… Justice should not only be done but seen to be done,” Thakur’s petition stated.

The plea added that it is inherent in a democratic set-up that the agency which is entrusted the task of holding elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day.

Another petitioner Gopal Singh has urged the court to implement an “independent and transparent system of selection” by constituting a neutral and independent selection committee for appointment of the CEC and ECs. The plea sought the court to injunct the implementation of the gazette notification of December 28, rolling out the new law.

(Courtesy:- Hindustan Times, 12 January 2024)

Supreme Court clears Shimla development plan

The Supreme Court on Thursday approved the Shimla development plan 2041 that is aimed at regulating construction activities in Himachal Pradesh’s capital city.

A bench headed by justice Bhushan R Gavi set aside the previous orders of the National Green Tribunal (NGT), holding that the entire developmental activities cannot be brought to a standstill by staying the development plan, which has been finalised after taking recourse to the statutory provisions and undergoing the procedural rigours.

“It can be seen that while preparing the development plan, due care has been taken to ensure that environmental aspects are taken care of. Upon its prima facie consideration, we have come to a view that there are sufficient safeguards to balance the need for development while taking care of and addressing environmental and ecological concerns,” said the bench, also comprising justice Aravind Kumar.

Permitting the Himachal Pradesh government to proceed with the implementation of the development plan, the top court underlined that the development plan was finalised after undergoing the rigorous processes, including that of inviting objections and suggestions at two stages and granting hearing to such representations.

To be sure, the bench clarified that its prima facie view on the validity of the plan may not be construed as giving imprimatur to all its provisions, adding it is always open for the litigants to raise a specific challenge to any independent provision before the appropriate forum if the impugned provision is claimed to be detrimental to the environment or ecology.

The judgment further highlighted the need for sustainable development by balancing between environmental protection and developmental activities. “While ensuring the developmental activities so as to meet the demands of growing population, it is also necessary that the issues with regard to environmental and ecological protection are addressed,” held the court. It stressed that both the right to clean environment and the right to development were components of Article 21 (right to live with dignity) and therefore, it was pivotal to strike a balance between the two.

The judgment comes as a shot in the arm for the Sukhvinder Singh Sukhu-led Congress government, which had finalised the new plan in June 2023 and strongly defended it in the top court. Though the court in May last year allowed the government to publish the development plan, it stopped fresh construction based on the draft plan until its final word in the matter.

The bench quashed a series of NGT orders since 2017 that restrained the state government from going ahead with its development plan and issued a slew of directions while noting that unplanned and indiscriminate development in the core, non-core, green and rural areas within the Shimla planning area had given rise to serious environmental and ecological concerns.

The Shimla development plan was approved in February 2022 by the then BJP-led state government, but it did not materialise owing to the NGT’s stay orders in May that year. The tribunal termed it illegal and in conflict with earlier orders passed in 2017 to regulate haphazard constructions in Shimla.

On Thursday, the bench noted that NGT had in effect directed the state government and its authorities to frame a development plan in a particular manner, but it was clearly an attempt to encroach upon the field reserved for the competent authorities to enact a piece of delegated legislation.

“It is a different matter for judiciary to examine as to whether a particular piece of legislation stands the scrutiny of law within the limited grounds of judicial review available. However, giving a direction or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive or the legislature would neither be legal nor proper,” the bench held, pointing out that the Himachal Pradesh Town & Country Planning Act authorises the state government and its authorities to frame a development plan.

The NGT could not have imposed fetters on such powers and directed it to exercise its powers in a particular manner, said the court, adding the tribunal acted without jurisdiction when it issued the directions regarding the proposed plan.

The plan, named Vision 2041, included construction provisions in 17 green belts with certain restrictions and in the core area where construction was earlier banned by the NGT. Detailed guidelines regarding the number of storeys, parking, attic and height of the structures were also mentioned, adding that felling trees would not be permitted in green areas.

The government has already decided to declare the attic as a habitable area and increase its height to 3.5 metres. Construction of one storey with a habitable attic would be permissible in 17 green belts, two storeys with a habitable attic and parking in core areas and three storeys with parking and a habitable attic in non-core areas would be permissible.

A total of 22,450 hectares were taken into account for revision and formulation of the development plan, which included the Municipal Corporation of Shimla, special area development authorities of Kufri, Shoghi and Ghanahatti and additional Shimla planning area besides villages.

(Courtesy:- Hindustan Times, 12 January 2024)

How GM mustard was developed, why the question of its approval has now reached Supreme Court

The Supreme Court on Thursday (January 11) questioned the Centre on why reports of the court-appointed Technical Experts Committee (TEC) on the biosafety of genetically modified (GM) crops were not looked into by the Genetic Engineering Appraisal Committee (GEAC).

The GEAC functions under the Ministry of Environment, Forest and Climate Change (MoEF&CC) and has been tasked with the appraisal of proposals relating to the “release” of GM organisms and products (ordinarily considered hazardous) into the environment.

A bench of Justices BV Nagarathna and Sanjay Karol asked Attorney General R Venkataramani whether the GEAC considered the TEC reports before the October 25, 2022 decision to approve the environmental release of transgenic mustard hybrid DMH-11.

The top court is hearing separate pleas by an activist and an NGO for a moratorium on the release of any genetically modified organisms (GMOs) into the environment.

According to PTI, the petitions contend that the release must happen only after a comprehensive, transparent and rigorous biosafety protocol is in the public domain, conducted by agencies of independent expert bodies, with its results being made public.

The Centre is also seeking withdrawal of an oral undertaking given in November 2022 by its law officer about not pressing ahead with commercial cultivation of GM mustard.

On November 3, 2022, the top court ordered for status quo on the GEAC’s previous decision to approve GM mustard for commercial cultivation, raising concerns about the risk factors.

At a meeting on October 18, 2022, the GEAC had recommended the “environmental release” of the transgenic hybrid mustard DMH-11 for seed production and conducting field demonstration studies on its effects, if any, on honey bees and other pollinating insects.

The transgenic mustard hybrid DMH-11 has been developed by the Centre for Genetic Manipulation of Crop Plants (CGMCP) at Delhi University.

Hybridisation involves crossing two genetically dissimilar plant varieties that can even be from the same species. The first-generation (F1) offspring from such crosses tend to have higher yields than what either parent can individually give.

Such hybridisation isn’t easy in mustard, as its flowers have both female (pistil) and male (stamen) reproductive organs, making the plants largely self-pollinating. Since the eggs of one plant cannot be fertilised by the pollen grains from another, it limits the scope for developing hybrids — unlike in cotton, maize or tomato, where this can be done through simple emasculation or physical removal of anthers.

By genetic modification (GM). Scientists at Delhi University’s Centre for Genetic Manipulation of Crop Plants (CGMCP) have developed the hybrid mustard DMH-11 containing two alien genes isolated from a soil bacterium called Bacillus amyloliquefaciens.

The first gene (‘barnase’) codes for a protein that impairs pollen production and renders the plant into which it is incorporated male-sterile. This plant is then crossed with a fertile parental line containing, in turn, the second ‘barstar’ gene that blocks the action of the barnase gene. The resultant F1 progeny is both high-yielding and also capable of producing seed/ grain, thanks to the barstar gene in the second fertile line.

The CGMCP scientists have deployed the barnase-barstar GM technology to create what they say is a robust and viable hybridisation system in mustard. This system was used to develop DMH-11 by crossing a popular Indian mustard variety ‘Varuna’ (the barnase line) with an East European ‘Early Heera-2’ mutant (barstar). DMH-11 is claimed to have shown an average 28% yield increase over Varuna in contained field trials carried out by the Indian Council of Agricultural Research (ICAR).

(Courtesy:- The Indian Express, 13 January 2024)

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