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Lawteller — January 2018

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.........Welcome Sign for Good Governance
In the past year there have been many land mark judgments. The Supreme Court held merely
because wife is capable of earning it would not be sufficient reason to reduce maintenance granted
to her, Mandatory linkage of Income Tax Returns with Adhaar is Constitutionally valid, Right to
Privacy is protected as an intrinsic part of Right to Life and Personal Liberty U/A 21 of the
Constitution of India, Practice of Tripple Talaq violates Fundamental Rights of Muslim Woman
and is un-constitutional, cooling of six months period prescribed under Section 13B of Hindu
Marriage Act to dissolve marriage by consent is not mandatory, mere negligence on part of
Advocate does not amount to Professional Misconduct and that only minor spouse has right to
seek annulment of marriage.
The Supreme Court also issued directions to prevent misuse of Section 498-A Penal Code. Not
only this the Supreme Court also issued guidelines in matters relating to designation of senior
advocates.
During the year 2017, the Gujarat assembly result has held a mirror to both the BJP and the
Congress and magnified their weaknesses. Law Minister Ravi Shankar Prashad said over 1800
obsolete laws have been abolished since the Modi Government came to power. It is Welcome
Sign for Good Governance that the present Government is updating and trimming the statue book.
Recent acquittal of A Raja 'Kani Mozhi' and all the accused in 2G scam case is a big victory for
DMK. The Representation of the People (Amendment bill of 2017) introduced by the Government
during winter session of Parliament proposes to allow NRI's to emerge as a decisive force in the
Country's Electoral Politics. An Expert Committee of the Bar Council of India is also considering
a plea to ban law makers from doubling up as practising advocates, saying they are salaried public
servants and cannot ride two horses at the same time.
Two Trial Court Judges have been suspended by the Delhi High Court for allegedly for corruption.
Thus, the effort is continuing to remove corruption.
Lawteller enters into its 26th year of Publication with the aim of spreading dependable solutions.
We assure to make Lawteller more and more informative in coming years. Lawteller wishes all its
readers a Very Happy and Prosperous New Year 2018.
Editor-in-Chief
CIVIL LAWS
APPEAL UNDER WEALTH TAX ACT HAS TO BE
DECIDED LIKE SECOND APPEAL IN CPC
M
AHARAJA AMRINDER SINGH (THE
APPELLANT) IS THE WEALTH tax assessee
and is subject to payment of Wealth Tax under the Act.
The case pertains to the Assessment Years 1981-82,
1982-83 and 1983-84. The issue involved in these three
assessment years was decided by the Tribunal in
favour of the appellant (assessee) which gave rise to
filing of the appeals before the High Court by the
Revenue under Section 27-A of the Act questioning
therein the legality and correctness of the orders of
the Tribunal. As mentioned above, the High Court
allowed the appeals filed by the Revenue, which has
given rise to filing of these appeals by way of special
leave before the Supreme Court by the assessee.
National Tax Tribunal appeal before the High
Court.
The short question, which arises for consideration in
these appeals, is whether the High Court was justified
in allowing the appeals filed by the Revenue and
thereby was justified in setting aside the orders
passed by the Tribunal.
(3) In an appeal under this section, the
Memorandum of Appeal shall precisely state
the substantial question of law involved in the
appeal.
The Supreme Court set aside the orders passed by the
High Court. As a result the appeals succeed and were
allowed. Both the cases are remanded to the High
Court for deciding the appeals afresh in accordance
with the observations made in the judgement.
The operative part of the judgment reads as under:Section 27 - A of the Wealth Tax Act reads as under:
"27-A Appeal to High Court.(1) The assessee or the Chief Commissioner or
Commissioner may within one hundred twenty
days of the day upon which he is served with
notice of an order under section 24 or section
26 or clause (e) of sub-section (1) of section
35, file on or after the 1st day of October, 1998
but before the date of establishment of the
4
I January 2018
(1A) The High Court may admit an appeal after
the expiry of the period of one hundred and
twenty days referred to in sub-section (1), if it
is satisfied that there was sufficient cause for
not filing the same within that period.
(2) An appeal shall lie to the High Court before
the date of establishment the National Tax
Tribunal from every order passed in appeal by
the Appellate Tribunal, under sub-section (1)
of section 24 only if the High Court is satisfied
that the case involves a substantial question of
law.
(4) Where the High Court is satisfied that a
substantial question of law is involved in any
case, it shall formulate that question.
(5) The appeal shall be heard only on the
question so formulated and the respondent
shall, at the time of hearing of the appeal, be
allowed to argue that the case does not involve
such question: Provided that nothing in this
sub-section shall be deemed to take away or
abridge the power of the Court to hear, for
reasons to be recorded, the appeal on any other
substantial question of law not formulated by
it, if it is satisfied that the case involves such
question.
(6) The High Court shall decide the question
of law so formulated and deliver such judgment
thereon containing the grounds on which such
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CIVIL LAWS
decision is founded and may award such cost
as it deems fit.
(7) The Assessing Officer shall give effect to the
order of the High Court on the basis of a certified
copy of judgment delivered under sub-section
(6).
(8) The Provisions of the Code of Civil
Procedure, 1908 (5 of 1908) relating to
appeals to High Court shall, so far as may be,
apply in the case of appeals under this section."
TTTTTTT
Section 27-A of the Act, which provides a remedy of
appeal to the High Court against the order of the
Income Tax Appellate Tribunal, is modeled on existing
Section 100 of the Code of Civil Procedure, 1908
(hereinafter referred to as "the Code"). Indeed, as
would be clear, the language of Section 27-A of the Act
and Section 100 of the Code is identical. Both the
Sections are, therefore, in pari materia. It is a case
where Section 100 of the Code is bodily lifted from the
Code and incorporated in Section 27-A of the Act with
minor additions and alterations by following the
principle of "legislation by incorporation".
TTTTTTT
A three Judge Bench of this Court in Santosh Hazari
v. Purushottam Tiwari (Deceased) by L.Rs. [2001 (3)
SCC 179] had examined the scope of Section 100 of
the Code of the Civil procedure, 1908 (hereinafter
referred to as "the Code"). Justice R.C. Lahoti (as His
Lordship then was) speaking for the Bench laid down
the following proposition of law in Para 9:
"9. The High Court cannot proceed to hear a
second appeal without formulating the
substantial question of law involved in the
appeal and if it does so it acts illegally and in
abnegation or abdication of the duty case on
Court. The existence of substantial question of
law is the sine qua non for the exercise of the
jurisdiction under the amended Section 100 of
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the Code. (See Kshitish Chandra Purkait v.
Santosh Kumar Purkait [1997 (5) SCC 438],
Panchugopal Bar ua v. Umesh Chandra
Goswami [1997 (4) SCC 413] and Kondiba
Dagadu Kadam v. Savitribai Sopan Gujar
[1999 (3) SCC 722.]"
TTTTTTT
His Lordship then in Paras 10 to 14 succinctly
explained the meaning of the words "substantial
question of law" and "question of law" and held that
in order to admit the second appeal, what is required
to be made out by the appellant being sine qua non
for exercise of powers under Section 100 of the Code,
is existence of "substantial question of law" arising
in the case so as to empower the High Court to admit
the appeal for final hearing by formulating such
question. In the absence of any substantial question
of law arising in app appeal, the same merits dismissal
in limine on the ground that the appeal does not
involve any substantial question of law within the
meaning of Section 100 of the Code.
TTTTTTT
In our considered opinion, the interpretation made
by this Court of Section 100 in Santosh Hazari's Case
(supra), would equally apply to Section 27-A of the
Act because firstly, both Sections provide a remedy of
appeal to the High Court; Secondly, both Sections are
identically worded and in pari materia; Thir dly,
Section 27-A is enacted by following the principle of
"legislation by incorporation"; fourthly, Section 100
is bodily lifted from the Code and incorporated as
Section 27-A in the Act; and lastly, since both Sections
are akin to each other in all respects, the appeal filed
under Section 27-A of the Act has to be decided like
a second appeal under Section 100 of the Code.
TTTTTTT
Reference : Supreme Court. Maharaja Amrinder Singh
v. The Commissioner of Wealth Tax, civil appeal no.
1349 of 2007.
—————
January 2018
I5
CIVIL LAWS
ONLY REMEDY TO CHALLENGE AN AWARD OF
LOK ADALAT IS CIVIL SUIT
O
N 07.05.2007, T. JAGAT SINGH (RESPONDENT
NO. 5 herein) filed a civil suit being O.S. No. 481
of 2007 against respondent Nos. 1 to 34 herein
(defendant Nos. 1 to 33) in the Court of District Judge,
Ranga Reddy District Court.
The suit was for specific performance of agreement
of sale dated 28.12.1995 said to have been entered
into between the parties in respect of agricultural land
totally admeasuring AC. 51.29 guntas in (Sy.Nos.
262-274) situated at Pappalguda village of
Rajendranagar Mandal, Ranga Reddy District
(hereinafter referred to as the "suit land").
Originally, the plaintiff had filed suit only against
defendant Nos. 1 to 9 but later on defendant Nos. 10
to 33 made an application for being joined as
defendant Nos. 10 to 33 in the civil suit as according
to them, they had an interest in the subject matter of
the civil suit and also in its decision and, therefore,
they were necessary parties to the suit. Their prayer
was allowed. The defendants then contested the suit.
During the pendency of civil suit, on 22.08.2007, the
parties (plaintiff and defendants) settled the matter
in relation to the suit land and accordingly entered
into written compromise.
A joint compromise petition signed by all the parties
to the suit was accordingly filed before the Lok
Adalat, which held its Lok Adalat sitting in the Court
on 22.08.2007.
The members of the Lok Adalat before whom the suit
was posted for its disposal in terms of the compromise
petition filed by the parties perused the compromise
petition and accepted the compromise petition finding
it to be in order. An Award was accordingly passed
on 22.08.2007 under Section 21 of the Legal Services
6
I January 2018
Authorities Act, 1987 (hereinafter referred to as "the
Act") in terms of the compromise petition, which, in
turn, disposed of the suit as having been
compromised. (Annexure P-2).
On 14.11.2009, respondent Nos. 1 to 4 herein (who
were original defendant Nos. 22 to 25 in Suit No. 481
of 2007) filed Civil Suit No. 107 of 2010 against the
plaintiff and the remaining defendants of Civil Suit
No. 481 of 2007. This suit was filed in the Court of II
Additional District Judge, Ranga Reddy District at
L.B.Nagar.
This suit was for a declaration that the award dated
22.08.2007 passed by the Lok Adalat in Civil Suit No.
481 of 2007 was obtained by the defendants of this
suit by playing fraud/misrepresentation on the
plaintiffs and hence the Award dated 22.08.2007 be
declared illegal, null and void and not binding on the
plaintiffs.
According to the plaintiffs, though they were parties
to the award along with defendants in Civil Suit No.
481/2007 but since the award dated 22.08.2007 was
obtained by the parties by misrepresenting the facts
to the plaintiffs which was nothing short of fraud
played by the defendants on them to grab their more
land without their knowledge and taking advantage
of their illiteracy, the same is not a legal award and
hence not binding on the plaintiffs. On these
averments, the plaintiffs prayed that the award dated
22.08.2007 be declared illegal, void, in-operative and
not binding on the plaintiffs.
The defendants, on being served with the notice of
the suit, filed an application under Order 7 Rule 11 (d)
of the Code of Civil Procedure, 1908 (hereinafter
referred to as "the Code") and prayed for rejection of
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CIVIL LAWS
the plaint. According to the defendants, since the suit
seeks to challenge the Award of Lok Adalat, it is not
maintainable being barred by virtue of rigour
contained in Order 7 Rule 11(d) of Code. It was
contended that the remedy of the plaintiff was in filing
writ petition under Article 226 or/and 227 of the
Constitution of India to challenge the award dated
22.08.2007 as held by the Supreme Court in State of
Punjab & Anr. v. Jalour Singh & Ors. [2008 (2) SCC
660].
The Trial Court, by order dated 24.07.2013 allowed
the application filed by the defendants and rejected
the plaint by invoking powers under clause (d) of
Rule 11. It was held that the filing of the civil suit to
challenge the award of Lok Adalat is impliedly barred
and the remedy of the plaintiffs is to challenge the
award by filing writ petition under Article 226 or/and
227 of the Constitution in the High Court as held by
the Supreme Court in the case of State of Punjab
(supra).
The plaintiffs, felt aggrieved, filed an appeal before
the High Court. The High Court, by impugned order,
allowed the appeal, set aside the order of the Trial
Court and restored the suit on its file for its disposal
on merits in accordance with law. The High Court
held that since the suit is founded on the allegations
of misrepresentation and fraud, it is capable of being
tried on its merits by the Civil Court.
Against the judgement of the High Court special
leave petition was filed. The Supreme Court set aside
the order passed by the High Court and that of the
order passed by the Trial court was restored. As a
consequence, the application filed by the appellants
(defendants) under Order 7 Rule 11 (d) of the Code
was allowed resulting in rejection of the plaint.
The operative part of the judgment reads as under:The law laid down in State of Punjab v. Jalour Singh
by this Court is binding on all the Courts in the
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country by virtue of mandate of Article 141 of the
Constitution. This Court, in no uncertain terms, has
laid down that challenge to the award of Lok Adalat
can be done only by filing a writ petition under
Article 226 and/or Article 227 of the Constitution of
India in the High Court and that too on very limited
grounds.
TTTTTTT
The High Court was, therefore, not right in by passing
the law laid down by this Court on the ground that
the suit can be filed to challenge the award, if the
challenge is founded on the allegations of fraud. In
our opinion, it was not correct approach of the High
Court to deal with the issue in question to which we
do not concur.
TTTTTTT
In our view, the decision rendered in the case of State
of Punjab (supra) is by the larger Bench (Three
Judge) and is, therefore, binding on us. No efforts
were made and rightly to contend that the said
decision needs reconsideration on the issue in
question. That apart, when this Court has laid down
a particular remedy to follow for challenging the
award of Lok Adalat then in our view, the same is
required to be followed by the litigant in letter and
spirit as provided therein for adjudication of his
grievance in the first instance. The reason being that
it is a law of the land under Article 141 of the
Constitution of India (see - M. Nagaraj & Ors. v. U.O.I.
& Ors.[2006 (8) SCC 212].
TTTTTTT
Authorities relied upon : 2017 SCC On Line Bom
3440, Civil Application (OJ) No.144 of 2016, 2015 SCC
OnLine Jhar. 4377, 2014 (9) ADJ 1506.
Reference : Supreme Court. Bharvagi Constructions
& Anr . v. Kothakapu Muthyam Reddy & Ors., civil
appeal no. 11345 of 2017 [arising out of SLP (C) No.
23605 of 2015].
—————
January 2018
I7
CRIMINAL LAWS
UNCONTROVERTED ALLEGATIONS DO NOT
DISCLOSE COMMISSION OF OFFENCE,
PROCEEDINGS QUASHED
T
HE MARRIAGE BETWEEN VARALA
BHARATH KUMAR (THE FIRST appellant) and
the second respondent (complainant) was solemnized
at Hyderabad as per Hindu rites and rituals. They lived
together for about 20 days in matrimonial house.
Thereafter, the first appellant left India and went to
Australia, where he is working as an engineer. It is
alleged by the second respondent, that during her stay
at the matrimonial house for the period of aforementioned 20 days, the first appellant did not come
close to the complainant and he was not even willing
to talk freely with the complainant, despite her sincere
efforts to come close to her husband. It is also alleged,
that the first appellant never behaved as a dutiful
husband and used to evade the complainant whenever
she approached to him; he maintained the distance
even during nights; when asked, the first appellant
informed the complainant that he was suffering from
viral fever; the first appellant took treatment in the
hospital for two-three days, and even after discharge
from the hospital, he did not come closer to the
complainant; the first appellant postponed the nuptial
night ceremony and he was not interested in cohabitation. Even after the first appellant left for
Australia, the family members of the first appellant
including the second appellant were not talking to the
complainant. The complainant left for her parents'
house and started residing there. It is further alleged,
that the parents of the complainant had spent about
rupees fifteen lakhs for the marriage ceremony and
rupees twenty lakhs for the gold ornaments. On these,
among other grounds, complaint came to be lodged
by the second respondent.
The police after registering the crime for the of fences
punishable under Sections 498A and 406 of the Indian
8
I January 2018
Penal Code investigated and filed the charge sheet,
which culminated in CC No. 442 of 2015, pending on
the file of XIV Metropolitan Magistrate, Cyberabad,
L.B. Nagar.
The appellants herein approached the High Court of
Judicature at Hyderabad under Section 482 of the Code
of Criminal Procedure seeking to quash the
proceedings initiated against the appellants. The High
Court by the impugned order has rejected the prayer
of the appellants to quash the proceedings initiated
against them, and instead directed appellant no.1 to
file an application under Section 70(2) Cr.P.C. seeking
to recall NBW issued against him and directed
appellant no.2 to file an application under Section 205
Cr.P.C. seeking to dispense with his presence before
the trial Court.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal, quashed the proceedings initiated against both
the appellants pending on the file of Metropolitan
Magistrate for the offences punishable under Sections
498A and 406 of the Indian Penal Code.
The operative part of the judgment reads as under:The ingredients of criminal breach of trust are also
not forthcoming from the records as against the
appellants. The allegations contained in the
complaint and the charge sheet do not satisfy the
definition of criminal breach of trust, as contained in
Section 405 of the I.P.C. In view of the blur red
allegations, and as we find that the complainant is
only citing the incidents of unhappiness with her
husband, no useful purpose will be served in
continuing the prosecution against the appellants.
This is a case where there is a total absence of
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CRIMINAL LAWS
allegations for the offences punishable under Section
498A and Section 406 of the I.P.C. In the matter on
hand, the allegations made in the First Information
Report as well as the material collected during the
investigation, even if they are taken at their face value
and accepted in their entirety, do not prima facie
constitute the offences punishable under Section 498A
and 406 of the IPC against the accused/appellants.
So also the uncontroverted allegations found against
the appellants do not disclose the commission of the
offence alleged and make out a case against the
accused. The proceedings initiated against the
appellants are liable to be quashed.
TTTTTTT
Reference : Supreme Court. Varala Bharath Kumar
and another v. State of Telangana and another. criminal
appeal no. 1565 of 2017 [arising out of SLP (Cr.) No.
5458/2016].
—————
GLOBAL GLIMPSE
MISSOURI JUDGE UPHOLDS $110 MILLION TALC VERDICT
A Missouri judge upheld the $110 million jury award in a lawsuit against Johnson & Johnson and talc supplier
Imerys Talc. The suit alleged that four decades of using Johnson & Johnson's talcum powder products resulted
in 62 year-old Lois Slemp's ovarian cancer diagnosis. In May, the St. Louis Circuit Court jury deliberated for 10
hours before reaching a verdict against Johnson & Johnson and ImerysTalc. This ruling was called into question
following the US Supreme Court's decision in the Bristol Myers Squibb case to implement more "stringent
jurisdictional standards for lawsuits filed by out-of-state plaintif fs". In spite of their client's Virginia residency,
Slemp's attorneys argued that the Missouri court was the appropriate avenue to try the two companies because
of their connection with Pharma Tech Industries, a Union, Missouri-based company that Johnson & Johnson
and Imerys Talc uses to label, package, and distribute their products. There are more than 3,000 lawsuits pending
against Johnson & Johnson. People around the country are accusing the health care company of not only
ignoring the scientific data linking its talcum powder based products to ovarian cancer but for failing to warn
their customers about the risk of continued use of talcum powder.
TRUMP SIGNS SWEEPING US TAX BILL INTO LAW
US President Donald Trump signed the Tax Cuts and Jobs Act into law, making sweeping changes to US tax
rates, exemptions and deductions. At the signing ceremony, Trump touted what he sees as the law's promise,
including providing incentives to business to invest in capital projects, increasing take-home pay for American
workers and protecting "the family farmers and small-business owners who lost their business because of the
estate tax". Regarding the provision reducing the individual mandate penalty of the Affordable Care Act (ACA)
from $695 to $0, Trump said that "Essentially, I think it ultimately leads to the end of Obamacare. Essentially,
I think Obamacare is over because of that, and we're going to come up with something that's really going to be
very good. But the individual mandate was very unfair because you're basically saying, pay for something in
order not to have to get healthcare. So you're paying - you're paying not to have to have healthcare. It was
very unfair. Many people thought it should have been overturned in the Supreme Court. It didn't quite make
it. Almost - but didn't quite make it. But now we're overturning the individual mandate, the most unpopular
thing in Obamacare. Very, very unfair". Trump's conclusion on the effect of the law is that it is "going to be a
tremendous thing for the American people. It's going to be fantastic for the economy".
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January 2018
I9
MUNICIPALITIES
ANNUAL VALUATION OF PROPERTY
H
ARBANSLAL MALHOTRA & SONS PVT. LTD.
(THE APPELLANT) is the owner of the premises
bearing No. 226/2 situated at A.J.C. Bose Road,
Kolkata- 700020. It consists of two-storey building and
some land appurtenant thereto (hereinafter referred to
as "the premises"). This premises is assessed to
payment of tax under the provisions of the Calcutta
Municipal Corporation Act, 1980 (hereinafter referred
to as "the Act").
The question arose while making assessment of the
premises for the Assessment Years 1988-89 (3rd
quarter) and 1994-95 (3rd quarter) before the
Assessing Authority (Hearing Officer), as to what is
the proper annual value of the premises and secondly,
how it should be determined under Section 174 of the
Act for payment of tax on the premises.
By two orders dated 22.06.1996, the Assessing Officer
(Hearing Officer) determined the valuation of the
premises. So far as annual valuation for the
Assessment Year (1988-89) (3rd quarter) is concerned,
it was done at Rs.59,400/-, whereas so far as it was
for the Assessment Year (1994-95) (3rd quarter) is
concerned, the same was done at Rs.4,25,600/-.
The appellants (assessee), felt aggrieved of the orders
of Assessing Officer, filed two appeals before the
Tribunal. So far as the order pertaining to the period
(1988-89), valuing the premises at Rs.59,400/- was
concerned, the appellant filed appeal being M.A.A. No.
1702 of 1996 whereas so far as the order relating to
period (1994-95), valuing the premises at Rs.4,25,600/
- was concerned, the appellant filed appeal being
M.A.A. 1701 of 1996.
Both the appeals were heard analogously by the
Tribunal and were disposed of by common order dated
18.11.2002. So far as M.A.A. No. 1702/96 is concerned,
it was dismissed by upholding the valuation whereas
10
I January 2018
M.A.A. No. 1701/96, was allowed in part wherein the
Tribunal reduced the annual valuation made by the
Assessing Officer, from Rs.4,25,000/- to Rs.75,400/-.
The Tribunal held that the annual valuation of the
premises which was made at Rs.4,25,000/- by the
Assessing Authority was wrong and should have
been done at Rs.75,400/- in accordance with the
procedure prescribed in Section 174 (1).
The Municipal Corporation, felt aggrieved of the order
of the Tribunal, filed revision petition before the High
Court. By impugned order, the High Court allowed the
revision and remanded the case to the Tribunal to redetermine the annual value of the premises. The High
Court held that the Tribunal was not right in making
an assessment of the premises by clubbing land and
building. According to the High Court, it should have
been done separately, i.e., building and land should
have been assessed separately for determining their
respective annual value under Section 174(1) and (2)
of the Act.
The owner (assessee), felt aggrieved by the order of
the High Court, thus filed special leave petition. The
Supreme Court accepted the appeal. The impugned
orders dated 28.06.2004 in C.O. No.368 of 2004 and
dated 17.08.2005 in Review Application No. 2963 of
2004 in C.O. No.368 of 2004 were set aside and the
order of the Tribunal dated 18.11.2002 was restored.
The operative part of the judgment reads as under:Reading of Section 174 shows that it deals with two
types of assessment for determining the annual value
of land or building. One is in relation to the "land
on which the building is built" and the other is in
relation to the "open land", i.e., the "land on which
no building is built". So far as former is concerned,
i.e., land on which building is built, it is governed by
sub-section (1) of Section 174 whereas so far as the
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MUNICIPALITIES
later is concerned, i.e., open land on which no
building is built, it is governed by sub-section (2) of
Section 174.
TTTTTTT
In the case of former, the assessing authority is
required to take land and building as "single unit"
for determination of its gross annual rent which is
reasonably expected to fetch at the time of assessment
from year to year. To illustrate, if the building has
some appurtenant land which is exclusively used by
the owner for garden or/and parking the vehicles,
such building or/and land may fetch more rentals as
compared to a building, which does not have these
facilities or has very small land appurtenant to the
building. In any case, such building and the land
cannot be separated for determining their gross
annual rent. Such case, therefore, would fall in subsection (1) of Section 174. The annual value and gross
annual rent of such premises have to be, therefore,
determined as per the procedure prescribed in sub-
section (1) of Section 174 of the Act.
TTTTTTT
It is also clear from Section 178(2)(i) and (ii), which
provides that every building together with the site and
the land appurtenant thereto shall be assessed as a
"single unit".
TTTTTTT
Section 174(1) and (2) operate in separate field. Both
cannot be clubbed for determination of the gross
annual rental value of land or building. In other
words, both the Sections have to be applied
independently depending upon the fact as to whether
the premises is "building with land" or it is an "open
land" and accordingly their gross annual rental
value would be determined.
TTTTTTT
Reference : Supreme Court. Harbanslal Malhotra &
Sons Pvt. Ltd. v. Kolkata Municipal Corpn. & Anr., civil
appeal no. 3337 of 2007.
—————
GLOBAL GLIMPSE
ECJ RULES UBER MUST COMPLY WITH TAXI REGULATIONS
The European Court of Justice (ECJ) ruled that Uber must comply with existing transportation regulations. In
doing so, the ECJ found that Uber operates more like a transportation company than an online platform that
merely connects riders with drivers. This ruling will require Uber operating in an EU country to abide by the
transportation regulations of an individual member state as opposed to the less restrictive e-commerce rules of
the EU. In a press release accompanying the decision, the court stated that "the service provided by Uber is
more than an intermediation service consisting of connecting, by means of a smartphone application, a nonprofessional driver using his or her own vehicle with a person who wishes to make an urban journey... that
intermediation service must be regarded as forming an integral part of an overall service whose main component
is a transport service and, accordingly, must be classified not as "an information society service" but as "a
service in the field of transport"... [C]onsequently, the directive on electronic commerce does not apply to that
service, which is also excluded from the scope of the directive on services in the internal market. For the same
reason, the service in question is covered not by the freedom to provide services in general but by the common
transport policy. However, non-public urban transport services and services that are inherently linked to those
services, such as the intermediation service provided by Uber, has not given rise to the adoption of measures
based on that policy". While this has broad implications for Uber and other ride-hailing apps wishing to expand
their influence in the EU, this ruling only pertains to Uber's peer-to-peer ride-hailing service, which has already
faced a ban in numerous EU countries such as France, Spain and Belgium.
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January 2018
I 11
EDUCATION
RIGHT OF EDUCATION UPTO AGE OF 14 YEARS IS
FUNDAMENTAL RIGHT
T
HE UNDISPUTED F ACTS ARE THAT
PALATHINGAL M.L.P . School, Parappanangadi
(the appellant school) was a junior primary school
up to the level of Class IV. Vide order dated 16th
June, 2015 the appellant school was upgraded to the
level of upper primary school i.e. it was permitted
to run from Class V to Class VIII also. The order of
the government dated 16th June, 2015 permitting the
school to be upgraded was challenged by
respondent No.1, who is the Manager of a school
being run in the vicinity . The main ground of
challenge was that the procedure prescribed under
the Kerala Education Rules, 1959 (for short 'KER'),
had not been followed and no notice was given to
the schools in the vicinity to raise any objection
with regard to the upgradation. The learned Single
Judge allowed the writ petition mainly on the ground
that the procedure prescribed in Rule 2 of Chapter
V of KER was not followed. The order of the State
Government was set aside but permission was given
to the appellant school to permit the students
already admitted, to continue their education in the
school till the next academic year . The learned
Single Judge also directed that it would be open to
the Government to take a fresh decision in the matter
after following the procedure prescribed under Rule
2 of Chapter V of KER. The appellant filed Writ
Appeal No.669 of 2016 which was dismissed.
of any rule under these Rules causes undue hardship
in any particular case, the Government may dispense
with or relax the requirements of that rule to such
extent and subject to such conditions as they may
consider necessary for dealing with the case in a just
and equitable manner.
TTTTTTT
We may also mention that we have gone thr ough
the file of the case especially the map (Annexure
P-13), showing the distance of the various schools
and we find that no other school is at a distance
of less than 3 kilometres from the appellant school.
Even the school of respondent No. 1, as per the
averments made in the map, is at a distance of 3
kilometres if one crosses a level crossing and is
at a distance of 4.5 kilometres if this journey is
undertaken by a bus. We cannot expect childr en
in the age group of 10 to 14 years to walk 3
kilometres or more to attend school. The right of
education up to the age of 14 years is now a
fundamental right under article 21A of the
Constitution of India and if this right is to be
meaningful then efforts must be made to open
upper primary schools in such a manner that no
child has to walk 3 kilometres or more only to
attend school.
TTTTTTT
Against the judgement of the High Court special
leave petition was filed. The Supreme Court
accepted the appeal, set aside the judgement of the
Division Bench as well as of the Single Bench.
The operative part of the judgment reads as under:-
Reference : Supreme Court. The Manager Palathingal
M.l.P . School, Parappanangadi v. Sethumadhavan P.K.
And Ors., civil appeal no. 11359 of 2017 [arising out
of SLP (C) No. 11894 of 2016].
—————
Where the Government are satisfied that the operation
12
I January 2018
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POLLUTION
RIGHT TO BREATHE CLEAN AIR IS A RECOGNISED
RIGHT
I
N THIS THE PUBLIC INTEREST RELIEF SOUGHT WAS FIRSTLY FROM PREVENTING AIR POLLUTION
THROUGH THE BURSTING OF fireworks and secondly, by invoking the provisions of the Explosives Act,
1884 and the Explosives Rules, 2008 framed thereunder for preventing air pollution by restricting the possession
and sale of fireworks in the National Capital Region.
The prayer for a complete prohibition on the sale of fireworks due to pollution in the air caused by the bursting
of fireworks was considered at an interim stage by Supreme Court and a detailed order was passed on 11th
November, 2016 [Arjun Gopal v. Union of India [2017 (1) SCC 412].The manufacturers and suppliers of fireworks
primarily based in Sivakasi moved an application on or about 5th July, 2017 for modification of that interim
order. The court through present order decided that application.
The background for the interim order passed on 11th November, 2016 is that Diwali was celebrated in 2016 on
30th October. On the next day, it was discovered that PM2.5 levels in the air had crossed 700 µg/m3 being
among the highest levels recorded in the world and about 29 times above the standards laid down by the
World Health Organization (WHO). We need not delve into the details given in the order since there is no
dispute that the air in Delhi and in most parts of the National Capital Region (NCR) was stiflingly polluted.
This resulted in many falling sick and others having to purchase face masks for personal use and install air
purifiers in buildings.
5. The conclusion that the air in the NCR and particularly in Delhi was polluted is not only based on the above
information but is also based on the statutory standards or the National Ambient Air Quality Standards laid
down in India. The standards are in Schedule VII of the Environment (Protection) Rules, 1986. Broadly stated
the presence of PM2.5 should range between 40 and 60 µg/m3 and the presence of PM10 should range between
60 and 100 µg/m3. For the purposes of a lay person understanding this, it would be enough to say that air
quality index or AQI is dependent on eight pollutants and the categorization based on the presence of these
pollutants is as follows:
AQI Range
Category
0-50
Good
51-100
Satisfactory
101-200
Moderately polluted
201-300
Poor
301-400
Very poor
401-500
Severe
In Delhi, during November 2016 the AQI was way above 500 on several days and had even crossed 700 the
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January 2018
I 13
POLLUTION
day after Diwali. The standards laid down in Schedule VII of the Environment (Protection) Rules, 1986 are as
follows:
SCHEDULE VII
National Ambient Air Quality Standards
S.
Pollutant
No.
Time
weighted
Average
Concentration
in Ambient Air
Industrial,
Residential,
Rural and
Other Area
Ecologically
Sensitive
Area
(notified by
Central
Government)
Methods of measurement
(1)
(2)
(3)
(4)
(5)
(6)
1.
Sulphur
Dioxide (SO2),
µg/m3
Annual*
50
20
24 hours**
80
80
- Improved West and
Gaeke
- Ultraviolet
fluorescence
Nitrogen
Dioxide (NO2),
µg/m3
Annual*
40
30
24 hours**
80
80
Annual*
Particulate
Matter (size less
24 hours**
than 10µm) or
PM10 µg/m3
60
60
100
100
Particulate
Annual*
Matter (size less
than 2.5µm) or 24 hours**
PM2.5 µg/m3
40
40
60
60
5.
Ozone (O3)
µg/m3
8 hours* *
1 hour**
100
180
100
180
- UV photometric
- Chemiluminescence
- Chemical Method
6.
Lead (Pb)
µg/m3
Annual*
24 hours**
0.50
1.0
0.50
1.0
- AAS/ICP method after
sampling on EPM
2000 or equivalent
filter paper
2.
3.
4.
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I January 2018
- Modified Jacob &
Hochheiser (NaArsenite)
- Chemiluminescence
- Gravimetric
- TOEM
- Beta attenuation
- Gravimetric
- TOEM
- Beta attenuation
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POLLUTION
- ED-XRF using Teflon
filter
7.
Carbon
Monoxide (CO)
mg/m3
8 hours* *
02
02
- Non Dispersive, Infra
Red (NDIR)
spectroscopy
1 hour**
04
04
8.
Ammonia
(NH3) µg/m3
Annual*
24 hours**
100
400
100
400
- Chemiluminescence
- Indophenol blue
method
9.
Benzene (C6H6) Annual*
µg/m3
05
05
- Gas chromatography
based continuous
analyzer
- Adsorption and
Desorption followed
by GC analysis
10.
Benzo(±)
Pyrene (BaP) particulate
phase only,
ng/m3
Annual*
01
01
- Solvent extraction
followed by HPLC
/GC analysis
11.
Arsenic (As),
µg/m3
Annual*
06
06
- AAS/ICP method after
sampling on EPM
2000 or equivalent
filter paper
12.
Nickel (Ni),
µg/m3
Annual*
20
20
- AAS/ICP method after
sampling on EPM
2000 or equivalent
filter paper
* Annual arithmetic mean of minimum 104 measurements in a year at a particular site taken twice a week 24
hourly at uniform intervals.
** 24 hourly or 08 hourly or 1 hourly monitored values , as applicable, shall be complied with 98% of the time
in a year, 2% of the time, they may exceed the limits but not on two consecutive days of monitoring.
Notes. - Whenever and wherever monitoring results on two consecutive days of monitoring exceed the limits
specified above for the respective category, it shall be considered adequate reason to institute regular or
continuous monitoring and further investigations.
In the backdrop of these staggeringly high PM2.5 levels and other information provided by learned counsel
appearing for the parties, including damage to health by breathing in such highly polluted air, the Supreme
Court directed the Union of India on 11th November, 2016 to:
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January 2018
I 15
POLLUTION
(i) Suspend all such licences as permit sale
of fireworks, wholesale and retail within the
territory of the National Capital Region
(NCR).
(ii) The suspension shall remain in force till
further orders of the Supreme Court.
NCR and these are:
1. Construction activity and carriage of
construction material.
2. Burning of Municipal Solid Waste and
other waste.
3. Burning of agriculture residue.
(iii) No such licences shall be granted or
renewed till further orders.
The directions given by Supreme Court have been
implemented and are presently in operation. It was
further directed that the Central Pollution Control
Board (CPCB) will study and prepare a report on the
harmful effects of the materials currently used in the
manufacture of fireworks. The report was to be
submitted to the Supreme Court within a period of
three months. Notwithstanding the aforesaid order the
CPCB has not furnished the report.
Feeling aggrieved by the continuance of the interim
order passed on 11th November, 2016 the concerned
manufacturer and supplier of fireworks moved I.A.
No.52448 of 2017 for modification/vacation of the said
order. The applicant was supported by other
manufacturers and suppliers.
4. Vehicular Pollution.
5. Dust on the roads.
6. Industrial and power house emission
including fly-ash.
7. Emissions from Hot-Mix Plants and Stone
Crushers.
In other words, the submission of the applicant was
that fireworks are not a major contributor of air
pollution. We may, however, add that during the
course of submissions, it was accepted by learned
counsel for all the parties that whether or not the
bursting of fireworks is a major cause of air pollution
in the NCR, it is certainly one of the causes of air
pollution, particularly in Delhi.
It is stated in the application for modification or
vacation of the interim order that there are 821
fireworks industries situated in and around Sivakasi
and they produce and supply fireworks and sparklers
all over the country for festivals such as Diwali,
Dussehra, Christmas, Ramzan and other important
ceremonies. It is further stated that these industries
directly employ about 2 lakh people and in addition,
about 3 lakhs are employed in ancillary and subsidiary
industries connected with the production and supply
of fireworks.
The applicant also referred to and relied upon a study
conducted by the Indian Institute of Technology,
Kanpur (IIT-K) in January 2016. The study is titled
"Comprehensive Study on Air Pollution and Green
House Gases in Delhi". The study was submitted in
the form of a report to the Department of Environment
of the Government of NCT of Delhi and the Delhi
Pollution Control Committee. The study conducted by
IIT-K suggests that the sources of PM2.5 are several
but the bursting of fireworks is not one of them. We
have not been informed whether any use has been
made (if at all) of the study.
According to the applicant the National Green
Tribunal (NGT) rendered a decision on 10th November,
2016 in Original Application No.21 of 2014 and other
connected matters in which it is recorded that there
are seven major contributors of air pollution in the
In addition to the aforesaid, the applicant also relied
upon a view expressed by the CPCB before the
Supreme Court to the effect that poor wind speed was
one of the causes of smog over Delhi particularly in
the winter months. It was also submitted that there are
16
I January 2018
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POLLUTION
certain other geographical and meteorological
conditions such as temperature, wind direction and
boundary layer that contribute to the presence of smog
in Delhi.
It was also submitted that the burning of crops or
stubbles in Punjab and Pakistan also caused air
pollution in Delhi and indeed this was the case in
October-November 2016. A reference was made to a
brief write up along with an image, released by the
Earth Observatory of the National Aeronautics and
Space Agency (NASA) and dated 2nd November,
2016, stating that, "Punjab ranks among the nation's
top wheat and rice producers. For a few weeks in
October and November, Punjab also becomes a major
producer of air pollution." A reference was also made
to a report in the New York Times by Geeta Anand on
2nd November, 2016 that an estimated 32 million tons
of leftover straw from rice harvests were burnt in
Punjab and Haryana, in spite of an NGT direction
against this, and this led to plumes of smoke
blackening the skies in the capital.
The applicant drew attention of court to the poor air
quality in Delhi on the days prior to Diwali 2016 and
for more than a month thereafter. A comparison was
drawn with the air quality recorded by the CPCB in
Andhra Pradesh, Telangana, Karnataka and West
Bengal to suggest that on some days prior to Diwali,
the air quality was not particularly healthy in select
cities in these States thereby suggesting that the air
is generally polluted in different parts of the country
and the bursting of fireworks may marginally add (if
at all) to air pollution. In this context it was submitted
that the bursting of fireworks takes place only for a
couple of days around Diwali and other festive
occasions and that cannot by itself result in a
substantial deterioration in air quality all over the
country including Delhi. The bursting of fireworks
around Diwali would have only a temporary and
transitory impact and not any long lasting effect.
Therefore, the bursting of fireworks around Diwali
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does not explain high PM2.5 levels in Delhi more than
even a month after Diwali.
During the course of submissions it was pointed out
that the Delhi Pollution Control Committee had issued
a direction on 8th November , 2016 under the
provisions of the Air (Prevention and Control of
Pollution) Act, 1981 banning the bursting of fireworks
at all times except on religious occasions. It was
submitted that this ban is still in force and therefore
it cannot be said that the terrible quality of air in Delhi
in November 2016 and thereafter is attributable only
to bursting of fireworks - there are several other
factors. It was submitted that on an overall
consideration of the issues, the ban and sale of
fireworks in Delhi and in the NCR should be modified
if not lifted.
Learned counsel for the petitioners gave us a Note
on the harmful and deleterious effects of some of the
chemicals used in fireworks. We have no doubt and
indeed no learned counsel had any doubt that the
excessive use of chemicals in fireworks could have
serious and deleterious health effects, particularly
among children. We are, therefore, proceeding on this
basis without reference to the Note since there is no
dispute on this aspect. With this agreement in mind
(which has always been there), we had passed an order
on 31st July, 2017 after hearing learned counsel as well
as Dr. A.B. Akolkar, Member Secretary of the CPCB
and Mr. K. Sundershan, Deputy Chief Controller of
Explosives, Sivakasi to the effect that fireworks
manufactured by the respondents shall not contain
antimony, lithium, mercury, arsenic and lead in any
form whatsoever. We had also directed that it would
be the responsibility of PESO to ensure compliance
particularly in Sivakasi. We had noted that there was
some doubt about the health hazards that could be
caused by the use of strontium in fireworks and
adjourned the matter to hear submissions in that
regard.
The Supreme Court found that the health of the
January 2018
I 17
POLLUTION
people in Delhi and in the NCR must take precedence
over any commercial or other interest of the applicant
or any of the permanent licensees and, therefore, a
graded regulation was necessary which would
eventually in a prohibition. Taking all factors into
consideration the Supreme Court issued following
directions:
(1) The directions issued by this Court in
Sadar Bazar Fire Works (Pucca Shop)
Association [SLP (C) No. 17327-28/1993
decided on 1st November, 1993] shall stand
partially modified to the extent that they are
not in conformity with the Explosives Rules
which shall be implemented in full by the
concerned authorities. Safety from fire
hazards is one of our concerns in this regard.
(2) Specifically, Rule 15 relating to marking on
explosives and packages and Rule 84 relating
to temporary shops for possession and sale
of fireworks during festivals of the
Explosives Rules shall be strictly enforced.
This should not be construed to mean that
the other Rules need not be enforced - all
Rules should be enforced. But if the
fireworks do not conform to the requirements
of Rules 15 and 84, they cannot be sold in
the NCR, including Delhi and this prohibition
is absolute.
(3) The directions issued and restrictions
imposed in the order passed by this Court on
18th July, 2005 in Noise Pollution (V) shall
continue to be in force.
(4) The concerned police authorities and the
District Magistrates will ensure that fireworks
are not burst in silence zones that is, an area
at least 100 meters away from hospitals,
nursing homes, primary and district healthcare centres, educational institutions, courts,
religious places or any other area that may
be declared as a silence zone by the
18
I January 2018
concerned authorities.
(5) The Delhi Police is directed to reduce the
grant of temporary licences by about 50% of
the number of licences granted in 2016. The
number of temporary licences should be
capped at 500. Similarly, the States in the
NCR are restrained from granting more than
50% of the number of temporary licences
granted in 2016. The area of distribution of
the temporary licences is entirely for the
authorities to decide.
(6) The Union of India will ensure strict
compliance with the Notification GSR No.
64(E) dated 27th January, 1992 regarding the
ban on import of fireworks. The Union of
India is at liberty to update and revise this
notification in view of the passage of time
and further knowledge gained over the last
25 years and issue a fresh notification, if
necessary.
(7) The Department of Education of the
Government of NCT of Delhi and the
corresponding Department in other States in
the NCR shall immediately formulate a plan
of action, in not more than 15 days, to reach
out to children in all the schools through the
school staff, volunteers and NGOs to
sensitize and educate school children on the
health hazards and ill-effects of breathing
polluted air, including air that is polluted due
to fireworks. School children should be
encouraged to reduce, if not eliminate, the
bursting of fireworks as a part of any
festivities.
(8) The Government of NCT of Delhi and
other States in the NCR may consider
interacting with established medical
institutions for issuing advisories cautioning
people about the health hazards of bursting
fireworks.
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POLLUTION
(9) The interim direction issued by this Court
on 31st July, 2017 prohibiting the use of
compounds of antimony, lithium, mercury,
arsenic and lead in the manufacture of
fireworks is made absolute. In addition, the
use of strontium chromate in the manufacture
of fireworks is prohibited.
(10) Fireworks containing aluminium, sulphur,
potassium and barium may be sold in Delhi
and in the NCR, provided the composition
already approved by PESO is maintained. It
is the responsibility of PESO to ensure
compliance of the standards it has formulated.
(11) Since there are enough fireworks
available for sale in Delhi and the NCR, the
transport of fireworks into Delhi and the NCR
from outside the region is prohibited and the
concerned law enforcement authorities will
ensure that there is no further entry of
fireworks into Delhi and the NCR till further
orders. In our opinion, even 50,00,000 kg of
fireworks is far more than enough for
Dussehra and Diwali in 2017. The permanent
licensees are at liberty to exhaust their
existing stock of fireworks in Delhi and the
NCR and, if that is not possible, take
measures to transport the stocks outside
Delhi and the NCR.
(12) The suspension of permanent licences
as directed by the order dated 11th November,
2016 is lifted for the time being. This might
require a review after Diwali depending on
the ambient air quality post Diwali. However,
it is made explicit that the sale of fireworks
by the permanent licensees must conform to
the directions given above and must be fully
in compliance with the Explosives Rules. We
were informed that the permanent licences
were issued by PESO and therefore the
responsibility is on PESO to ensure
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compliance.
(13) While lifting the suspension on the
permanent licences already granted, we put
these licensees on notice for Dussehra and
Diwali in 2018 that they will be permitted to
possess and sell only 50% of the quantity
permitted in 2017 and that this will
substantially reduce over the next couple of
years. The permanent licensees are at liberty
to file objections to this proposed direction
within 30 days from today and thereafter the
objections if any will be heard and decided.
If no objections are filed, this direction will
become absolute without any further
reference to any licensee.
(14) Since there is a lack of clarity on the
safety limits of various metals and
constituents used in fireworks, a research
study must be jointly carried out by the
CPCB and the FDRC laying down appropriate
standards for ambient air quality in relation
to the bursting of fireworks and the release
of their constituents in the air . While
Schedule VII of the Environment (Protection)
Rules, 1986 does deal with several metals, but
as we have seen there are several other metals
or constituents of fireworks that have not
been studied by the CPCB and no standards
have been laid down with regard to the
concentration of these metals or constituents
in the ambient air. The CPCB has assured us
that it will complete the exercise by 15th
September, 2017 but keeping in mind its track
record subsequent to the order dated 11th
November, 2016 this does not seem possible.
Therefore, we grant time to the CPCB to come
out with definite standards on or before 30th
September, 2017.
(15) In any event, a research study also needs
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POLLUTION
to be conducted on the impact of bursting
fireworks during Dussehra and Diwali on the
health of the people. We, therefore, appoint
a Committee to be chaired by the Chairperson
of the CPCB and consisting of officers at the
appropriate level from the National Physical
Laboratory, Delhi, the Defence Institute of
Physiology and Allied Sciences, Timarpur,
Delhi, the Indian Institute of TechnologyKanpur, scientists from the State Pollution
Control Boards, the Fire Development and
Research Centre, Sivakasi and Nagpur and
the National Environment Engineering
Research Institute (NEERI) nominated by the
Chairperson of the CPCB to submit a report
in this regard preferably on or before 31st
December, 2017.
(16) Keeping in mind the adverse effects of
air pollution, the human right to breathe clean
air and the human right to health, the Central
Government and other authorities should
consider encouraging display fireworks
through community participation rather than
individual bursting of fireworks.
The operative part of the judgment reads as under:Continuing the suspension of licences might be too
radical a step to take for the present - a graded and
balanced approach is necessary that will reduce and
gradually eliminate air pollution in Delhi and in the
NCR caused by the bursting of fireworks. At the same
time it is necessary to ensure that injustice is not caused
to those who have already been granted a valid
permanent licence to possess and sell fireworks in Delhi
and the NCR. The graded and balanced approach is not
intended to dilute our primary concern which is and
remains the health of everybody and the human right to
breathe good quality air or at least not be compelled to
breathe poor quality air. Generally speaking, this must
take precedence over the commercial or other interest
20
I January 2018
of the applicant and those granted a permanent licence
to possess and sell fireworks.
TTTTTTT
But, from the material before us, it cannot be said
with any great degree of certainty that the extremely
poor quality of air in Delhi in November and
December 2016 was the result only of bursting
fireworks around Diwali. Certainly, there were other
causes as well, but even so the contribution of the
bursting of fir eworks cannot be glossed over .
Unfortunately, neither is it possible to give an
accurate or relative assessment of the contribution of
the other identified factors nor the contribution of
bursting fireworks to the poor air quality in Delhi and
in the NCR. Consequently, a complete ban on the sale
of fireworks would be an extreme step that might not
be fully warranted by the facts available to us. There
is, therefore, some justification for modifying the
interim order passed on 11th November, 2016 and
lifting the suspension of the permanent licences.
TTTTTTT
Admittedly there is a huge quantity of fireworks in
Delhi and in the NCR and the figure has been
provided to us by the applicant. Similarly, there can
be no doubt that the Delhi Police had issued a large
number of temporary licences in 2016 and it would
not be unreasonable to assume that around and
during Diwali, there would have been some illegal
temporary shops set up, whether known or not known
to the police. We do not have the figures with regard
to the NCR, but we assume that like in Delhi, a large
number of temporary licences have been issued for the
possession and sale of fireworks. Therefore, there is a
need to regulate the availability and sale of fireworks
in Delhi and the NCR.
TTTTTTT
Authorities relied upon : SLP (C) Nos. 17327-28/1993.
Reference : Supreme Court. Arjun Gopal and Ors. v.
Union of India and Ors., I.A. No. 52448 of 2017.
—————
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FLASH POINTS
SC WANTS NORMS, FOR DISTANCE
EDUCATION COURSES
Questioning the role of the University Grants
Commission (UGC) in checking the commercialisation
of education, the Supreme Court restrained deemedto-be universities from conducting distance education
in any course unless all the courses were approved
by the statutory authorities. "We restrain all deemedto-be universities to carry on any courses in distance
education mode from the academic session 2018-2019
unless it is permissible to conduct such courses in
distance education mode and specific permissions are
granted by statutory/regulatory authorities in respect
of each of those courses and unless the off-campus
centres/study centres are individually inspected and
found adequate by the statutory authorities," the
Supreme Court ordered in a judgment. The Bench
found that these institutions conducted distance
education, including in technical disciplines, without
proper inspection or checks. The court directed that
permission for distance education courses should be
given only after off-campus centres or study centres
of the institutions were individually inspected and
found adequate by the statutory authorities. The
approvals have to be course specific, the court
directed. The court further directed the UGC to take
appropriate steps to restrain the deemed-to-be
universities from using the word 'university' within one
month. The present case dealt with certain deemedto-be universities whose technical education courses
conducted through the distance education mode were
found to be in "flagrant violation of norms and policies
laid down by the authorities for the deemed-to be
universities. In fact, the court found that the All India
Council for Technical Education (AICTE) had been
"illegally kept out" and their study centres had never
been inspected. The Supreme Court ordered the direct
suspension of degrees for students enrolled during
academic sessions 2001-2005 in these institutions. It
ordered the annulment of degrees of students admitted
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in these universities after academic sessions of 20012005. The apex court has also ordered a CBI probe.
The court ordered the Centre to constitute a threemember panel in a month to examine and suggest a
roadmap for setting up a regulatory mechanism in the
relevant field of higher education and allied issues
within six months. The Centre would place the report
of the committee before the Supreme Court, which will
consider it on September 11, 2018.
SC BACKS TRANSGENDER AFTER
AIR INDIA GROUNDS HER DREAM
Shanavi Ponnusamy from Thoothukuddi in Tamil Nadu
dreamed of flying high above the discrimination she
suffered all her life for being a transgender. But public
carrier Air India decided to ground her aspirations by
rejecting her application to serve as flight cabin crew .
The Bench decided to take up Ms. Ponnusamy's fight.
The court gave the Ministry of Civil Aviation and Air
India Ltd. four weeks to respond to Ms. Ponnusamy's
question on how they could discriminate and deny her
a job solely for the reason that she is a transgender.
Doesn't a person have the right to gender identity, she
asked. In her petition, the 26-year-old engineering
graduate said that in 2014 she underwent gender
surgery and thereafter trained to "fulfil her dream of
working as a cabin crew of some airlines in India". She
also successfully completed a stint with the Air India's
customer support section in Chennai. In July 2017, she
responded to an advertisement published by Air India
for women cabin crew to work in its northern region.
Ms. Ponnusamy received a call letter the next month
and attended the tests. She was, however , not
selected, though she believed she had done well in
the tests. "The petitioner learnt reliably that she has
not been able to make the cut on account of the fact
that she is a transgender and the vacancies in the
cabin crew were earmarked only for women. The
petitioner has been rejected even though she has the
required qualification and experience," the petition,
January 2018
I 21
FLASH POINTS
filed through advocate Praveen Swarup and Suvesh
Kumar, submitted. Ms. Ponnusamy said she had no
choice but to apply as a woman because the
application form did not have a separate column for
transgenders. This was despite a 2014 judgment of the
Supreme Court which declared transgenders as the
'third community'. The apex court had ordered job
applications to have a separate column for the third
gender. Besides, Ms. Ponnusamy contended she had
already done her sex reassignment sur gery. The
petition said that though the Constitution provided for
the fundamental right to equality , it was hardly
implemented on the ground. "It is hard to find people
who employ transgenders. Some members of society
ridicule gender-variant people for being 'different' and
they may even be hostile," she submitted. Ms.
Ponnusamy contended that the right to one's gender
identity was a human right. "Human rights are basic
rights and freedoms which are guaranteed to a human
by virtue of him being a human which can neither be
created nor can be abrogated by any government," she
argued.
BEST:
CONSTITUTION BENCH TO EXAMINE
PLEA AGAINST MINISTER
Let judiciary, and not the Intelligence Bureau (IB), be
the best judge of professional competence of
candidates considered for judicial appointments, the
Supreme Court Collegium said. The Collegium of Chief
Justice of India Dipak Misra, Justices J. Chelameswar
and Ranjan Gogoi made it clear that the IB should not
delve into the professional competence of persons
shortlisted for the judiciary. The IB does a background
check on the candidates once their names are
considered for elevation by the High Court Collegium
concerned. "We are of the view that professional
competence can best be determined by the members
of the higher judiciary who have the opportunity to
observe his (candidate's) performance on a daily
basis," the Collegium noted. The Chief Justice and his
A Constitution Bench of the Supreme Court will
examine whether Kerala Electricity Minister M.M.
Mani has an unlimited freedom of speech to make
"abusive" remarks against women, government
officials and others. A three-judge Bench has tagged
a petition by Joseph Shine, alleging that Mr. Mani's
"objectionable and abusive language" offends his
constitutional duties as a Minister, besides violating
all principles of morality and decency , with an earlier
plea filed against former Uttar Pradesh Minister Azam
Khan. Mr. Khan had termed the gruesome
Bulandshahr gangrape as a "political conspiracy"
against the then Samajwadi Party which was in power
in Uttar Pradesh. One of the questions placed before
the Constitution Bench is whether "the State, the
JUDICIARY
COLLEGIUM
22
I January 2018
KNOWS
two senior-most colleagues met on November 1 to
decide on the recommendations for appointments to
Tripura and Jharkhand High Courts and also to
consider the case of three Additional Judges in the
Gauhati High Court who were to be made permanent
judges. The Supreme Court Collegium further laid
down that only factually proven information supplied
by the IB on candidates should be taken cognisance
of by the Collegium. "In our view, it would not be
appropriate to take cognisance of any unsubstantiated
information based on the discreet inquiries made by
the Intelligence Bureau," the Collegium noted. In the
cases of the three candidates - advocates Rajesh
Kumar, Anubha Rawat Choudhary and Kailash Prasad
Deo - for the Jharkhand HC, the Supreme Court
Collegium found that the IB had come up with nothing
on record against their integrity. All three have been
recommended for elevation as judges. In all the cases,
the Collegium's conclusions show that it has
microscopically gone through the IB reports
concerning the integrity of the candidates
recommended by the HC Collegiums.
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FLASH POINTS
protector of citizens and responsible for the law and
order situation, should allow these comments as they
have the potentiality to create a distrust in the mind
of the victim as regards the fair investigation and, in
a way, the entire system?" Another point the
Constitution Bench would cover is whether such
derogatory comments by persons in power "defeat the
concept of constitutional compassion and also
conception of constitutional sensitivity."
RELIEF FOR SELF-EMPLOYED,
SALARIED ROAD ACCIDENT VICTIMS
A five-judge Constitution Bench spelt relief to families
who were given a raw deal by insurance companies
just because their loved one was either self-employed
or salaried at the time of death in a road accident. So
far, the pre-liberalisation Motor Vehicles Act of 1988
had computed motor accident claims on the basis that
self-employed persons and the salaried have no
"future prospects", and if alive, their income over the
years would hardly have seen any drastic
improvements. The courts would only take the actual
income drawn by the victim at the time of death. A
departure could be made only in "rare and exceptional
cases involving special circumstances." Changing the
over two-decade long perception, the Constitution
Bench took into consideration the changed life
circumstances of a globalised world of private
entrepreneurs, high salaries in the private sector, rise
in cost of living and even inflation. The Bench, in an
authoritative and unanimous judgment, held that law
should recognise and give credit to the competitive
attitude of the modern Indian, his ability to garner his
resources, live with dynamism and enterprise, move
and change with time. "The purchasing capacity of a
salaried person on permanent job increases because
of grant of increments and pay revision or for some
other change in service conditions, there is always a
competing attitude in the private sector to enhance
the salary to get better efficiency from the employees,"
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Chief Justice Misra, who wrote the judgment for the
Bench, observed. "Similarly, a person who is selfemployed is bound to garner his resources and raise
his charges/fees so that he can live with the same
facilities. To have the perception that he is likely to
remain static and his income also will be stagnant is
contrary to the fundamental concept of human
attitude," the verdict observed. The Constitution
Bench fixed guidelines for computing motor accident
claims for self-employed and salaried persons. If the
road accident victim had a permanent job at the time
of his or her death in a road accident, 50% of his actual
salary will be added towards future prospects if his
age is below 40 years, 30% if the age of the victim is
between 40 to 50 years and 15% if the age is in the
50-60 bracket. Actual salary should be read as actual
salary less tax. Similarly if thevictim was self-employed
or on a fixed salary , 40% will be added to his
established income if his or her age was below 40
years at the time of death; an addition of 25% if the
victim was in the 40-50 age bracket and 10% if he or
she was between 50 to 60 years. The established
income means the income minus the tax component.
SC COMES T O THE AID OF
CONSTRUCTION WORKERS
With over Rs. 37,000 crore collected as cess to be used
for the welfare of 2.8 crore registered construction
workers across the country, the Supreme Court has a
new worry - whether the huge sum of money will really
be used for the benefit of labourers in the high-risk
and hazardous construction industry mostly
controlled by private companies. The Social Justice
Bench of the Supreme Court has been closely
monitoring the government over the past two years
on the issue. It had once, in a hearing in 2015, vented
about how "ridiculous" it was that thousands of
crores collected as construction cess for the benefit
of building workers ends up at mercy of "some babus".
The Union Ministry of Labour and Employment
January 2018
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informed the Bench that the number of workers
registered under the Building and Other Construction
Workers (Regulation of Employment and Conditions
of Service) Act of 1996 has increased from 2.15 crore
to 2.8 crore. The cess collected, which includes the
hard-earned savings of residential flat buyers, has also
seen a marked hike from Rs. 25,477 crore to Rs. 37,482
crore. The Ministry reported to the Court that the
utilisation of the cess amount for the welfare of
workers has also increased from Rs. 5,371 crore to Rs.
9,491 crore. All the figures were as of June 30, 2017.
The Ministry said that a national portal to create
awareness on schemes for workers is under
construction. NGOs would be able to access the portal
to help workers. "We are concerned with a huge
number of construction workers and we are also
concerned with the very huge amounts that have been
collected. We are of the view that the entire matter
should be looked at in a positive and constructive
manner by the Government so that the benefits can
be passed on to the construction workers, who are the
real beneficiaries," the SC expressed its apprehension.
Directing the Union to carve out a plan in consultation
with the States within a month, the apex court urged
the government to involve NGOs actively, that is, even
before the national portal is set up. The lack of
implementation of the law was brought to fore in a PIL
filed by the NGO National Campaign Committee for
Central Legislation on Construction Labour.
CREAMY LAYER CASE REFERRED TO
CONSTITUTION BENCH
Reopening the debate on the application of "creamy
layer" for reservations for the Scheduled Castes and
the Scheduled Tribes in government jobs, the Supreme
Court referred the question to a Constitution Bench.
The Bench said clarity is required on the "application
of creamy layer in situations of completing claims
within the same races, communities, groups or parts
thereof of SC/ST communities notified by the President
24
I January 2018
under Articles 341 and 342". This question on the
application of creamy layer principle in SC/ST quotas
comes 11 years after a five-judge Constitution Bench
in the M. Nagaraj judgment of 2006 had decided that
creamy layer should be excluded from the reservations
for the Scheduled Castes and Scheduled Tribes in
government jobs. Legal experts note that the Mandal
Commission and E.V. Chinnaiah cases had confined the
creamy layer concept to the Other Backward Classes
section. The two-judge Bench's order is based on a
batch of petitions for clarity on Article 16 (4), which
deals with the State's powers for providing for
appointments or posts for "any backward class of
citizens"; on Article 16 (4A), which arms the State with
power to make provisions for quota in promotion with
consequential seniority to SC/ST communities; and
finally Article 16 (4B) on unfilled reservation
vacancies.
SC FOR NA TIONWIDE BAN ON
FURNACE OIL, PET COKE
The Supreme Court requested all States and Union
Territories to move forward towards a nationwide ban
on the use of pet coke and furnace oil to power up
industries, in a bid to fight pollution. The Environment
Bench of the Supreme Court had already ordered a ban
on the industrial use of pet coke and furnace oil in
the States of Uttar Pradesh, Haryana and Rajasthan.
This ban specifically came after an Environment
Pollution Control Authority Report recommended the
ban on sale, distribution and use of furnace oil and
pet coke in the National Capital Region (NCR). Their
use is already prohibited in Delhi. "We may note that
the pollution caused by pet coke and furnace oil is
not a problem confined only to NCR but appears to
be a problem faced by almost all the States and Union
Territories in the country," the Bench observed in their
written order. Pursuant to the Supreme Court ban, both
the Environment Ministry and the Central Pollution
Control Board, brought into "immediate effect a
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prohibition on the use of pet coke and furnace oil by
any industry, operation or processes within the States
of U.P., Haryana and Rajasthan until further orders".
However, senior advocate and amicus curiae Harish
Salve submitted that such a prohibition would only
partly solve the pollution problem in these States. He
said the actual source of these pollutants should be
stopped. For this, the very sale of pet coke and furnace
oil for use as fuel should come to an end in U.P.,
Haryana and Rajasthan. Additional Solicitor General
A.N.S. Nadkarni, for the Centre, was asked by the
court to get instructions from the Centre and respond
within a week on the suggestions by Mr. Salve. The
apex court also imposed a fine of Rs. 2 lakh on the
Ministry of Environment for not fixing any emission
standards for industries using pet coke and furnace
oil in the NCR.
MAKING CASTE SLUR ON SC/STs
OVER PHONE AN OFFENCE
The Supreme Court has ruled that using casteist
remarks over phone in a public place against the
Scheduled Caste and Scheduled Tribe category
amounts to criminal offence, warranting a jail of a
maximum five years. The apex court refused to stay
criminal proceedings and quash an FIR against a
person, who allegedly used derogatory casteist
remarks over phone to a woman from the SC/ST
category. The bench of Justices declined to interfere
with the August 17 order of the Allahabad High Court,
which rejected the plea of a Uttar Pradesh resident,
seeking quashing of the FIR against him by the
woman. It dismissed his plea saying he has to prove
during the trial that he had not talked to the woman
over phone in a public place. Advocate Vivek Vishnoi,
appearing for the accused, said that at the time of the
said conversation, both the woman and his client were
in different cities and it could not be stated that it was
in public view. He said that section 3(1)(s) of SC/ST
Act relates to a person, who abuses any member of a
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SC or ST by caste name in any place "within public
view". "In this case, both persons were in different
cities and the conversation took place over the phone,
which can't be said to be in a public view. This was a
private conversation. The apex court had already
settled what 'public view' means in its earlier verdict
of 2008," he said. Vishnoi said the issue involved in
the petition was that whether a private conversation
on mobile phone between two individuals can come
within the ambit of expression "within public view".
He said that by no stretch of imagination, a private
conversation between two indviduals on mobile phone
can come within the ambit of expression "within public
view" and that the charges framed against the
petitioner need to be quashed. The lawyer further said
that the complainant has made some vague allegations
regarding land sale transactions but no specific
averments were made which may prima facie show that
offence of cheating and intimidation were made out.
The bench, however , refused to agree with the
contention and said it was only in the trial that the
accused could prove if he was talking on phone in
public view or not.
NO FRESH POLLS IF NOTA EXCEEDS
CANDIDATES' VOTES
"Holding elections in our country costs money," Chief
Justice of India Dipak Misra said, while rejecting a
public interest litigation petition suggesting fresh
elections whenever the public chose overwhelmingly
the "None of the Above" (NOTA) option. Supreme
Court advocate Ashiwni Upadhyay said that if NOTA
got the highest number of votes, it would amount to
an expression of public dissatisfaction with the
candidates in the fray. If this happened, the result
should have to be nullified by the Election
Commission. In response, a three-judge Bench, led
by the Chief Justice, gave Mr . Upadhyay an
illustration. "Let us say the highest percentage of
votes polled by a candidate is 40 and the rest goes to
January 2018
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FLASH POINTS
NOTA. Does this mean we subject this candidate to
another election," Chief Justice Misra asked. "So, this
means there should be an election each time a
candidate gets less than 51% of the votes polled ...
We cannot say such things. We will not be doing our
duty and will be crossing a constitutional barricade,"
the Chief Justice said. The court said a voter had the
right to express his dissent by staying at home. Mr.
Upadhyay has decided to withdraw his petition from
the court. He may now approach the Election
Commission. His petition had even sought a ban on
the parties and their candidates who failed to NOTA
in the first election from contesting the fresh polls.
PANCHAYAT CERTIFICATE NO
PROOF OF CITIZENSHIP
A certificate of residency issued by a gram
panchayat is not a document of citizenship and is
"meaningless" unless supported by some other valid
record to make a claim for inclusion in the National
Register of Citizenship (NRC), the Supreme Court
said. The Bench said no verification is made before
such certificates are issued. The apex court said it
will pass orders on whether the Gauhati High Court
was right in invalidating the document for making a
claim in the NRC or whether further opportunity
needs to be given to the people to establish their
claims of citizenship. "A certificate issued by gram
panchayat secretary is not a document for
citizenship, rather it is meaningless unless it is
supported by some other valid document for claim
to NRC. This is only a supporting document and, for
it to be valid, there needs to be proper verification,"
the Bench said. The apex court was hearing a batch
of pleas challenging the Gauhati High Court order
holding that a certificate of residency issued by a
gram panchayat (village council) secretary was not
a legal and valid document for claim to citizenship.
About 48 lakh claims have been made using
certificates issued by gram panchayat secretaries, out
26
I January 2018
of a total of 3.29 crore claims made so far for inclusion
in the NRC which is being prepared in Assam to
identify illegal migrants. The draft NRC is required
to be published on or before December 31. NRC
coordinator Prateek Hajela had earlier informed the
court that out of the 48 lakh claims made for the NRC,
20 lakh were the indigenous people and if the fact of
being original inhabitants of the State is established,
then no further verification is required. Senior
advocate B.H. Marlapalle, appearing for petitioner
Rupajan Begum who has challenged the High Court
verdict, said it needs to be considered that many
people are illiterates and Muslim marriages were not
registered till it was made mandatory and births or
deaths are not registered. "This document is just a
supporting document for inclusion in the NRC and
the authenticity of the document has to be
scrutinised even if the High Court order is set aside.
People who have made claim on the basis of this
document need to be given further opportunity to
adduce evidence in support of their claim to the
NRC," the Bench said. Attorney-General K.K.
Venugopal, appearing for the Centre, said without
verification, this document cannot be accepted as it
only specifies the name of the father , place of
residence and nothing else. The Assam government
said the High Court was justified in invalidating the
document as it cannot be claim to citizenship.
UNCLES HELD GUILTY IN RAPE CASE
A local fast-track court in Chandigarh held both
maternal uncles guilty of raping their 10-year-old niece
in the case that had hit the headlines when the
Supreme Court on July 28 turned down the abortion
plea of the rape survivor at 32 weeks. She
subsequently delivered a baby girl in August. Both
accused have been found to be guilty of rape under
Section 376 (2) (f) (i) (n) (raping a minor) of the Indian
Penal Code and Section 5 (L) and 6 of the Protection
of Children from Sexual Offences Act," said advocate
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Manjit Singh, representing one of the accused. The
niece's pregnancy was discovered in July when she
complained of stomach ache and was taken to hospital;
tests revealed that she was already around 30 weeks
pregnant by then. The 10-year-old, according to the
complaint lodged with the police, was raped by her
elder and younger uncles - both hailing from Nepal repeatedly since last year. The elder uncle was arrested
on July 14 after an FIR was registered against him on
the complaint of the girl's mother. Chandigarh police
reinvestigated the matter after DNA tests of the
newborn girl didn't match with the elder uncle. The
police then arrested the younger uncle after his niece
named him as well during counselling. His DNA tests
matched with the newborn girl, following which he was
named as the main accused by the police in the rape
case.
ASTHANA'S APPOINTMENT AS CBI
SPECIAL DIRECTOR LEGAL
The Supreme Court rejected a plea challenging the
appointment of senior Gujarat cadre IPS officer Rakesh
Asthana to the post of CBI special director, saying it
could not question a "unanimous" decision taken by
the selection committee and the decision was not
illegal. Once there was consultation, the content of the
consultation was beyond the scope of judicial review ,
though the lack of effective consultation could fall
within the scope of judicial review, it said. The bench
said the selection committee, which consisted of high
officials, had discussions with the CBI Director and
considered relevant materials before taking the
decision. "In view of the foregoing discussion, we are
of the considered opinion that the appointment of
Rakesh Asthana - Respondent No. 2 herein, to the post
of Special Director, CBI does not suffer from any
illegality. The writ petition fails and is dismissed," the
Bench said. It said "We cannot question the decision
taken by the selection committee which is unanimous
and before taking the decision, the Director , CBI, had
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participated in the discussions and it is based on
relevant materials and considerations."
CAN'T FORCE GOVT. TO FRAME A
LAW: SC
The Supreme Court said it respected the government's
"political compulsions" and would not compel it to
ratify the UN Convention against Torture, or command
it to frame a standalone anti-torture legislation. The
Bench refrained from passing any positive order on a
public interest litigation petition filed by the former
Union Law Minister Ashwini Kumar for a standalone
anti-torture law. The court disposed of the petition
almost a year after entertaining it. At the weekend, the
judiciary faced a barrage of criticism for its "judicial
activism." At the Law Day and Constitution Day
functions, Ministers said public interest litigation
petitions could not replace governance and policy
decisions of the executive. "How can we compel the
government to make a law? Can we ask the
government to ratify a treaty by way of a mandamus,"
Chief Justice Misra asked Mr. Kumar. Justice D.Y.
Chandrachud, on the Bench, said the government "has
to take a political decision on whether or not it should
ratify the treaty". Mr. Kumar said the government had
given a commitment to the international community to
address torture, especially custodial torture. "W e
would be crossing judicial limits if we issue a
mandamus to the government. We have to respect the
political compulsions of the government," Justice
Chandrachud said. Mr. Kumar argued it was the duty
of the court to fill the gaps in the written laws. "But it
is a policy matter," Justice A.M. Khanwilkar observed.
Attorney-General K.K. Venugopal intervened to
submit that the government was considering an antitorture law. The Law Commission has recommended
that the Centre ratify the United Nations Convention
against Torture and frame a standalone anti-torture
law, making the state responsible for any injury
inflicted by its agents on citizens. The commission
January 2018
I 27
FLASH POINTS
has said the state should not claim immunity for the
actions of its officers or agents. "The State should
own the responsibility for injuries caused by its
agents on citizens ... while dealing with the plea of
sovereign immunity, the courts will bear in mind that
it is the citizens who are entitled to fundamental rights,
and not the agents of the State," the commission has
said. Though India signed the convention in 1997, it
is yet to ratify it. Efforts to bring in a standalone law
have failed. The National Human Rights Commission
has been urging the government to recognise torture
as a separate crime and codify the punishment in a
separate penal law. The Supreme Court, while hearing
Mr. Kumar's petition, termed torture an instrument of
"human degradation" used by the state. It was after
the court's scathing remarks that the government
referred the question of a law on torture to the Law
Commission. In its 273rd report handed over to the Law
Ministry, the commission has proposed the Prevention
of Torture Bill, 2017, which gives a wide definition to
torture, not limited to physical pain but also including
"inflicting injury, either intentionally or involuntarily,
or even an attempt to cause such an injury, which will
include physical, mental or psychological in nature".
SUPREME COURT REFUSES TO
STAY RELEASE OF PADMAVATI
The Supreme Court refused to entertain a plea for a
stay on the release of Padmavati , starring Deepika
Padukone in the lead role, saying the Central Board
of Film Certification (CBFC) was yet to certify it. The
Bench at the outset enquired whether or not the CBFC
had issued the certification. "Has the film been placed
before it? Has it certified the film," it asked counsel
for the petitioners. On being intimated that the CBFC
was yet to certify the movie, the Bench said, "this
court should not exercise its writ jurisdiction in such
a situation." The top court said there were several
guidelines for the CBFC to grant certification to a
movie and, in addition, there was the Film Certification
28
I January 2018
Appellate Tribunal (FCAT) to look into the grievances
over a film. The Bench was hearing a plea filed by
Siddharajsinh Mahavirsinh Chudasama and 11 others
against the Sanjay Leela Bhansali-directed Padmavati
which also stars Ranveer Singh and Shahid Kapoor
in the lead roles. The film is likely to hit theatres.
Besides seeking a stay on the release of the movie,
the plea has sought the setting up of a committee of
eminent historians to prevent any inaccuracy in the
portrayal of Rani Padmavati.
SC TERMS DELHI SMOG LIFETHREATENING
The Supreme Court sought the response of the Centre
and the governments of Punjab, Delhi and Haryana
on measures taken to counter the smog and pollution
choking the national capital and surrounding areas.
Acknowledging the dire consequences that continued
exposure to peaking levels of air pollution would visit
on the public, including schoolchildren, the Bench said
long-term preventive measures should be taken to end
this life-threatening situation caused by stubble
burning and dust from construction activities. Noting
that the petition filed by advocate R.K. Kapoor ,
highlighting the need for action, should be restored
to an appropriate Bench, the Supreme Court said it
would focus on chalking out a long-term solution to
the problem. Other forums like the National Green
Tribunal (NGT) should go ahead with hearing the
pollution cases, it said. The apex court's green signal
to the NGT came on a day the tribunal pulled up the
Uttar Pradesh government for not complying with its
order to ban construction in the National Capital
Region despite PM10 level being over 900. The
tribunal described the State's attitude as making a
"mockery of the system." Mr. Kapoor suggested in his
petition that incentives for farmers and alternative
methods such as sprinkling water on trees and the
streets would reduce the pollution.
ooooooo
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SERVICE
NO ESTOPPEL AGAINST STATUTE
M
ANAGEMENT OF CHURCH OF SOUTH
INDIA-RESPONDENT No.6, is running a
number of schools in the S tate of Kerala. We are
concerned with two schools, i.e., Samuel LMS High
School, Parassala and the Light to the Blind School,
Varkala. Respondent No.1 was working as part-time
Music Teacher in the Light to the Blind School,
Varkala.
The Management of the Samuel LMS High School,
Parassala, invited applications for filling up the post
of Music Teacher on direct recruitment basis. D.
Sarojakumari-the Appellant and Respondent No.1
both applied for the said post. The appellant was
appointed as Music Teacher on 12.07.1999 in Samuel
LMS High School, Parassala. Though Respondent
No.1 had applied for being considered for
appointment as Music Teacher in the Samuel LMS
High School, but after she was not selected in the
process of direct recruitment, she raised a plea that
since the Management of both the schools are same,
she was entitled to be promoted as Music Teacher
on the basis of her seniority in the Light to the Blind
School, Varkala. In this regard, she first filed a petition
before the District Educational Officer who accepted
her petition and held that the case of Respondent
No.1 was covered under Rule 43 of Kerala Education
Rules (for short KER). The appellant filed an appeal
which was rejected by the Deputy Director ,
Education. Thereafter, a revision petition was filed
and the main ground raised by Respondent No.6
herein was that the two Schools were separate units.
It was contended that the Samuel LMS High School
was run for all children, whereas the Light to the
Blind School, Varkala, was meant only for differently
abled children. It was pointed out that Respondent
No.6 had never maintained a common seniority list
for these two schools and this was never challenged
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by Respondent No.1 or any other member of the staff.
The Director, Public Instruction held that both
schools had different identities and Rule 43 was not
applicable. Respondent No.1, thereafter , filed a
representation which was rejected by the State
Government in which it was held that these two
schools were separate units and Respondent No.6
had been treating the schools run by them for
specially challenged children as separate entities.
Respondent No.1, thereafter, filed a writ a petition in
the High Court of Kerala. An objection was raised that
since Respondent No.1 herein had taken part in the
selection process, she could not, after being not
selected, be permitted to turn around and claim that
the process of direct recruitment could not have been
resorted to by the Management of Samuel LMS High
School. This objection was overruled by the High
Court only on the ground that there can be no estoppel
against a statute and the appellant could not be
debarred from filing a writ petition. On merits it was
held that both the schools formed one unit and,
therefore, Respondent No.1 was entitled for promotion
in the Samuel LMS High School. The two writ appeals
filed by the present appellant were dismissed.
Against the judgement of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal and set aside order dated 25.07.2003 of the
learned Single Judge and dismiss the writ petition
O.P.No. 36563 of 2002 as being not maintainable.
The operative part of the judgment reads as under:Same view has been taken in Madras Institute of
Development Studies and Another v. Dr. K.
Sivasubramaniyan and others [2016 (1) SCC 454].
TTTTTTT
The Kerala High Court did not note the above
mentioned judgments and ignored the well settled
January 2018
I 29
SERVICE
position of law in rejecting the specific plea raised
by the appellant herein that the appellant could not
raise the issue that no direct recruitment should have
been conducted once she had applied for and taken
part in the selection process by direct recruitment.
TTTTTTT
As far as the present case is concerned an
advertisement was issued by Respondent No.6 inviting
applications for the post of Music Teacher in Samuel
LMS High School. Respondent No.1 did not raise any
objection at that stage that the post could not be filled
in by direct recruitment and she should be considered
for promotion. Not only that, she in fact, applied for
the post and took part in the selection process. After
having taken part in the selection process and being
found lower in merit to the appellant, she cannot at
this stage be permitted to turn around and claim that
the post could not be filled in by direct recruitment.
The reasoning of the learned Single Judge in rejecting
the objection is not in consonance with the law laid
down by this Court. In view of this we need not go
into the other issues raised.
TTTTTTT
Authorities relied upon : 2010 (12) SCC 576, 1976 (3)
SCC 585.
Reference : Supreme Court. D. Sarojakumari v. R.
Helen Thilakom & Ors., Civil Appeal Nos. 8345-8346
of 2009.
—————
GLOBAL GLIMPSE
AUSTRALIA LEGALIZES SAME-SEX MARRIAGE WITH HOUSE OF
REPRESENTATIVES VOTE
Australia's House of Representatives overwhelmingly approved a bill legalizing same-sex marriage, with just
four votes in opposition. The new law changes the definition of marriage from "the union of a man and a
woman" to "the union of 2 people". This comes after years of resistance from conservatives. There had
previously been 22 unsuccessful attempts to make this change since 2004. This particular vote was preceded
by a national postal survey in which 61% of over 12 million respondents were shown to be in favor of marriage
equality. The response prompted the government to allow a free vote in Parliament. The vote caused immediate
celebrations, including cheers and even a song, with supporters singing "I am, you are, we are Australian".
SAN FRANCISCO JUDGE DISMISSES EQUAL PAY CLASS ACTION AGAINST
GOOGLE
A state judge in California has dismissed a case against Google alleging gender discrimination in pay and
hiring practices. The suit was brought by three female employees on behalf of all women employed by Google.
It claims that the tech giant pays women and minorities less for similar work and puts them in positions less
likely to lead to promotion than their white male counterparts. The claim was dismissed on the grounds that
the class was too vague and could not include all female employees. The judge gave the parties 30 days to file
a new complaint restricted to employees who experienced the alleged discrimination. Counsel for the women
involved planned to refile according the judge's request. This case is part of a series of lawsuits and allegations
concerning diversity and discrimination shaking up the tech industry. Microsoft, Twitter, and Oracle all currently
face similar suits while Google is also the subject of a federal investigation on the matter. Google maintains that
it has procedures in place to prevent discrimination.
30
I January 2018
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LAND ACQUISITION
FAIR COMPENSATION DETERMINED BY COURT
SHOULD BE GIVEN TO ALL LAND OWNERS
T
HE AWARD DATED 18TH JANUARY, 1990
WAS PASSED BY the Special Land Acquisition
Officer determining the market value of the acquired
land at the rate of Rs. 50 per square yard. Narendra &
Ors. (the appellants) as well as other villagers were not
satisfied with the rates so fixed and, therefore, sought
the reference under Section 18 of the Act. Matter was
referred to the Additional District Judge, Ghaziabad for
determination of market value of the acquired land.
Reference court, vide its judgment and order dated
19th April, 1999, increased the rate of compensation
from Rs.50/- per sq. yards to Rs.90/- per square yards.
Even this increase in the compensation was not to the
satisfaction of the land owners. Various appeals came
to be filed. Appeals were also filed by these appellants
claiming that the compensation be enhanced to Rs.
115/- per square yards. Some of the other land owners
whose lands were acquired, however, had claimed
higher compensation. The first batch of appeals filed
by others was decided by the High Court by judgment
dated 13th November, 2014. The High Court found
merit in those appeals and fixed the compensation at
the rate of Rs.297/- per square yards. When the
appeals of the appellants herein came up for hearing
before the High Court, the High Court took note of its
earlier judgment and accepted the fact that the land
of the appellants was acquired by the same Notification
vide which land of others was acquired wherein the
High Court had awarded the compensation at the rate
of Rs.297/- per square yards. Notwithstanding the
same, insofar as the appellants are concerned, the
High Court has limited the compensation to Rs.115/per square yards because of the reasoning that the
appellant had demanded compensation at that rate
only and had paid the court fees also accordingly.
Therefore, opined the High Court, it was difficult to
allow compensation at a rate higher than the rate
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claimed by the appellants.
In this backdrop, the question that falls for
consideration is as to whether the High Court was
precluded from granting compensation at the rate of
Rs.297/- per square yards which was the rate of
compensation awarded to other farmers of the said
village whose lands were acquired under the same
Notification and were similarly situated.
Against the judgemet of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal, set aside the judgement of the High Court.
The operative part of the judgment reads as under:The purpose and objective behind Section 28A is
salutary in nature. It is kept in mind that those land
owners who are agriculturist in most of the cases, and
whose land is acquired for public purpose should get
fair compensation. Once a particular rate of
compensation is judicially determined, which becomes
a fair compensation, benefit thereof is to be given even
to those who could not approach the court. It is with
this aim the aforesaid provision is incorporated by
the Legislature. Once we keep the aforesaid purpose
in mind, the mere fact that the compensation which
was claimed by some of the villagers was at lesser rate
than the compensation which is ultimately determined
to be fair compensation, should not be a ground to
deny such persons appropriate and fair compensation
on the ground that they claimed compensation at a
lesser rate. In such cases, strict rule of pleadings are
not be made applicable and rendering substantial
justice to the parties has to be the paramount
consideration. It is to be kept in mind that in the
matter of compulsory acquisition of lands by the
Government, the villagers whose land gets acquired
are not willing parties. It was not their voluntary act
January 2018
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LAND ACQUISITION
to sell of their land. They were compelled to give the
land to the State for public purpose. For this purpose,
the consideration which is to be paid to them is also
not of their choice. On the contrary, as per the scheme
of the Act, the rate at which compensation should be
paid to the persons divested of their land is determined
by the Land Acquisition Collector. Scheme further
provides that his determination is subject to judicial
scrutiny in the form of reference to the District Judge
and appeal to the High Court etc. In order to ensure
that the land owners are given proper compensation,
the Act provides for 'fair compensation'. Once such a
fair compensation is determined judicially, all land
owners whose land was taken away by the same
Notification should become the beneficiary thereof.
Not only it is an aspect of good governance, failing
to do so would also amount to discrimination by
giving different treatment to the persons though
identically situated. On technical grounds, like the
one adopted by the High Court in the impugned
judgment, this fair treatment cannot be denied to
them.
TTTTTTT
Simply because the appellants had paid court fee on
the claim at the rate of Rs.115/- square yards could
not be the reason to deny the compensation at a
higher rate. This could be taken care of by directing
the appellants to pay the difference in court fee after
calculating the same at the rate of Rs.297/- per square
yards.
TTTTTTT
Authorities relied upon : Civil Appeal No. 1506-1517
of 2016, First Appeal No. 522 of 2009.
Reference : Supreme Court. Narendra & Ors. v. State
of Uttar Pradesh & Ors., CivilAppeal Nos. 10429-10430
of 2017 [arising out of SLP (C) Nos. 2354-2355 of
2017].
—————
GLOBAL GLIMPSE
VOLKSWAGEN SENIOR MANAGER SENTENCED AFTER GUILTY PLEA TO
CONSPIRACY AND FRAUD
Oliver Schmidt, a former senior manager atVolkswagen AG was sentenced to 84 months in prison and a $400,000 fine
after pleading guilty to one count of conspiracy to defraud the United States and to one count of violating the Clean
Air Act. Issues arose in 2015 when Volkswagen released diesel operated vehicles that did not comply with EPA
standards. Schmidt knew of these issues and worked with other employees to not only allow for the violations to
continue, but also worked to conceal these issues from the public and the government.Acting U.S. Attorney for the
Eastern District of Michigan Daniel Lemisch stressed the seriousness of the charges, saying "This sentence reflects
how seriously we take environmental crime... Protecting natural resources is a priority of this office. Corporations,
and individuals acting on behalf of corporations, will be brought to justice for harming our environment". Court
documents indicate that Volkswagen applied for EPA certification of its 2.0 liter diesel engine in 2014, claiming that
their designs met U.S. emission standards. After release of these diesel vehicles, studies indicated that there were
discrepancies in the amount of nitrogen oxide actually released and the amount recorded during testing. Ultimately,
it was determined that Volkswagen had special devices on their diesel vehicles that could detect when they were
being tested versus when they were being driven. During testing periods, the vehicles emissions met the standards
of the government due to the special devices installed, but would skyrocket during driving periods, almost 30 times
higher than the limitations. Schmidt knew of these devices and then worked with other Volkswagen employees to
conceal them from the EPA, the Volkswagen AG pleaded guilty to three criminal charges, agreed to pay $2.8 billion
in criminal penalties, and then settled in civil court, agreeing to pay $1.5 billion in penalties.
32
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DIVORCE
OBJECT OF STATUTORY PERIOD OF SIX MONTHS
IS TO AVOID A HURRIED DECISION
T
HE QUESTION WHICH ARISES FOR
CONSIDERATION IN THIS appeal is whether the
minimum period of six months stipulated under Section
13B(2) of the Hindu Marriage Act, 1955 (the Act) for a
motion for passing decree of divorce on the basis of
mutual consent is mandatory or can be relaxed in any
exceptional situations.
Factual matrix giving rise to this appeal is that marriage
between the parties took place on 16th January, 1994 at
Delhi. Two children were born in 1995 and 2003
respectively. Since 2008 the parties are living separately.
Disputes between the parties gave rise to civil and
criminal proceedings. Finally, on 28th April, 2017 a
settlement was arrived at to resolve all the disputes and
seeks divorce by mutual consent. Harveen Kaur-the
respondent wife is to be given permanent alimony of
Rs.2.75 crores. Accordingly, HMA No. 1059 of 2017 was
filed before the Family Court (West), Tis Hazari Court,
New Delhi and on 8th May, 2017 statements of the
parties were recorded. Amardeep Singh-the appellant
husband has also handed over two cheques of
Rs.50,00,000/-, which have been duly honoured,
towards part payment of permanent alimony. Custody
of the children is to be with the appellant. They have
sought waiver of the period of six months for the
second motion on the ground that they have been
living separately for the last more than eight years and
there is no possibility of their re union. Any delay will
affect the chances of their resettlement. The parties have
moved the Supreme Court on the ground that only
Supreme Court can relax the six months period as per
decisions of Supreme Court.
Reliance has been placed inter alia on decision of
Supreme Court in Nikhil Kumar v. Rupali Kumar [2016
(13) SC 383] wherein the statutory period of six months
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was waived by Supreme Court under Article 142 of the
Constitution and the marriage was dissolved.
The text of Section 13B is as follows:
"13-B. Divorce by mutual consent.- (1) Subject
to the provisions of this Act a petition for
dissolution of marriage by a decree of divorce
may be presented to the district court by both
the parties to a marriage together, whether
such marriage was solemnized before or after
the commencement of the Marriage Laws
(Amendment) Act, 1976, on the ground that
they have been living separately for a period
of one year or more, that they have not been
able to live together and that they have
mutually agreed that the marriage should be
dissolved.
(2) On the motion of both the parties made not
earlier than six months after the date of the
presentation of the petition referred to in subsection (1) and not later than eighteen months
after the said date, if the petition is not
withdrawn in the meantime, the court shall, on
being satisfied, after hearing the parties and
after making such inquiry as it thinks fit, that
a marriage has been solemnized and that the
averments in the petition are true, pass a
decree of divorce declaring the marriage to be
dissolved with effect from the date of the
decree."
There is conflict of decisions of Supreme Court on the
question whether exercise of power under Article 142
to waive the statutory period under Section 13B of the
Act was appropriate. In Manish Goel v. Rohini Goel
[2010 (4) SCC 393], a Bench of two-Judges of Supreme
Court held that jurisdiction of Supreme Court under
January 2018
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DIVORCE
Article 142 could not be used to waive the statutory
period of six months for filing the second motion under
Section 13B, as doing so will be passing an order in
contravention of a statutory provision. It was observed:
"14. Generally, no court has competence to
issue a direction contrary to law nor can the
court direct an authority to act in
contravention of the statutory provisions. The
courts are meant to enforce the rule of law and
not to pass the orders or directions which are
contrary to what has been injected by law.
(Vide State of Punjab v. Renuka Singla [1994
(1) SCC 175], State of U.P. v. Harish Chandra
[1996 (9) SCC 309], Union of India v. Kirloskar
Pneumatic Co. Ltd. [1996 ( 4) SCC 453],
University of Allahabad v. Dr. Anand Prakash
Mishra [1997 (10) SCC 264] and Karnataka
SRTC v. Ashrafulla Khan [2002 (2) SC 560].
15. A Constitution Bench of this Court in Prem
Chand Garg v. Excise Commr. [AIR 1963 SCC
996] held as under: (AIR p. 1002, para 12)
"12. … An order which this Court can make in
order to do complete justice between the
parties, must not only be consistent with the
fundamental rights guaranteed by the
Constitution, but it cannot even be
inconsistent with the substantive provisions
of the relevant statutory laws." (emphasis
supplied)
The Constitution Benches of this Court in
Supreme Court Bar Assn. v. Union of India
[1998 (4) SCC 409] and E.S.P. Rajaram v. Union
of India [2001 (2) SCC 186] held that under
Article 142 of the Constitution, this Court
cannot altogether ignore the substantive
provisions of a statute and pass orders
concerning an issue which can be settled only
through a mechanism prescribed in another
statute. It is not to be exercised in a case where
34
I January 2018
there is no basis in law which can form an
edifice for building up a superstructure."
Supreme Court noted that power under Article 142 had
been exercised in cases where the Court found the
marriage to be totally unworkable, emotionally dead,
beyond salvage and broken down irretrievably. This
power was also exercised to put quietus to all litigations
and to save the parties from further agony. This view
was reiterated in Poonam v. Sumit Tanwar [AIR 2010
SC 1384].
In Neeti Malviya v. Rakesh Malviya [2010 (6) SCC 413],
Supreme Court observed that there was conflict of
decisions in Manish Goel (supra) and Anjana Kishore
v. Puneet Kishore [2002 (10) SCC 194]. The matter was
referred to bench of three-Judges. However, since the
matter became infructuous on account of grant of
divorce in the meanwhile.
Without any reference to the judgment in Manish Goel
(supra), power under Article 142 of the Constitution has
been exercised by Supreme Court in number of cases
even after the said judgment.
Supreme Court found that in Anjana Kishore (supra),
Supreme Court was dealing with a transfer petition and
the parties reached a settlement. Supreme Court waived
the six months period under Article 142 in the facts and
circumstances of the case. In Anil Kumar Jain v. Maya
Jain [2009 (10) SCC 415], one of the parties withdrew
the consent. Supreme Court held that marriage had
irretrievably broken down and though the civil courts
and the High Court could not exercise power contrary
to the statutory provisions, Supreme Court under
Article 142 could exercise such power in the interests
of justice. Accordingly the decree for divorce was
granted.
After considering the above decisions, the court is of
the view that since Manish Goel (supra) holds the field,
in absence of contrary decisions by a larger Bench,
power under Article 142 of the Constitution cannot be
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DIVORCE
exercised contrary to the statutory provisions,
especially when no proceedings are pending before the
Supreme Court and Supreme Court is approached only
for the purpose of waiver of the statute.
However, Supreme Court find that the question whether
Section 13B(2) is to be read as mandatory or
discretionary needs to be gone into. In Manish Goel
(supra), this question was not gone into as it was not
raised. Supreme Court observed:
"23. The learned counsel for the petitioner is
not able to advance arguments on the issue
as to whether, statutory period prescribed
under Section 13-B(1) of the Act is mandatory
or directory and if directory, whether could be
dispensed with even by the High Court in
exercise of its writ/appellate jurisdiction."
Accordingly, vide order dated 18th August, 2017, we
passed the following order:
"List the matter on 23rd August, 2017 to
consider the question whether provision of
Section 13B of the Hindu Marriage, Act, 1955
laying down cooling off period of six months
is a mandatory requirement or it is open to the
Family Court to waive the same having regard
to the interest of justice in an individual case.
Mr. K.V. Vishwanathan, senior counsel is
appointed as Amicus to assist the Court.
Registry to furnish copy of necessary papers
to learned Amicus".
Accordingly, learned amicus curiae has assisted the
Court. We record our gratitude for the valuable
assistance rendered by learned amicus who has been
ably assisted by S/Shri Abhishek Kaushik, Vrinda
Bhandari and Mukunda Rao Angara, Advocates.
Learned amicus submitted that waiting period enshrined
under Section 13(B)2 of the Act is directory and can be
waived by the court where proceedings are pending,
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in exceptional situations. This view is supported by
judgments of the Andhra Pradesh High Court in K.
Omprakash v. K. Nalini [AIR 1986 AP 167 (DB)],
Karnataka High Court in Roopa Reddy v. Prabhakar
Reddy [AIR 1994 Kar 12 (DB)], Delhi High Court in
Dhanjit Vadra v. Smt. Beena Vadra [AIR 1990 Del 146]
and Madhya Pradesh High Court in Dinesh Kumar
Shukla v. Smt. Neeta [AIR 2005 MP106 (DB)]. Contrary
view has been taken by Kerala High Court in M.
Krishna Preetha v. Dr. Jayan Moorkkanatt [AIR 2010 Ker
157]. It was submitted that Section 13B(1) relates to
jurisdiction of the Court and the petition is maintainable
only if the parties are living separately for a period of
one year or more and if they have not been able to live
together and have agreed that the marriage be
dissolved. Section 13B(2) is procedural. He submitted
that the discretion to waive the period is a guided
discretion by consideration of interest of justice where
there is no chance of reconciliation and parties were
already separated for a longer period or contesting
proceedings for a period longer than the period
mentioned in Section 13B(2). Thus, the Court should
consider the questions:
i) How long parties have been married?
ii) How long litigation is pending?
iii) How long they have been staying apart?
iv) Are there any other proceedings between
the parties?
v) Have the parties attended mediation/
conciliation?
vi) Have the parties arrived at genuine
settlement which takes care of alimony ,
custody of child or any other pending issues
between the parties?
The Supreme Court held that the period in Section
13B(2) is not mandatory but directory, it will be open to
the Court to exercise its discretion in the facts and
circumstances of each case where there is no possibility
January 2018
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DIVORCE
of parties resuming cohabitation and there are chances
of alternative rehabilitation.
The operative part of the judgment reads as under:We are of the view that since Manish Goel (supra) holds
the field, in absence of contrary decisions by a larger
Bench, power under Article 142 of the Constitution
cannot be exercised contrary to the statutory provisions,
especially when no proceedings are pending before this
Court and this Court is approached only for the purpose
of waiver of the statute.
TTTTTTT
However, we find that the question whether Section
13B(2) is to be read as mandatory or discretionary
needs to be gone into. In Manish Goel (supra), this
question was not gone into as it was not raised.
TTTTTTT
The object of the provision is to enable the parties to
dissolve a marriage by consent if the marriage has
irretrievably broken down and to enable them to
rehabilitate them as per available options. The
amendment was inspired by the thought that forcible
perpetuation of status of matrimony between
unwilling partners did not serve any purpose. The
object of the cooling off the period was to safeguard
against a hurried decision if there was otherwise
possibility of differences being reconciled. The object
was not to perpetuate a purposeless marriage or to
prolong the agony of the parties when there was no
chance of reconciliation. Though every effort has to
be made to save a marriage, if there are no chances
of reunion and there are chances of fresh
rehabilitation, the Court should not be powerless in
enabling the parties to have a better option.
TTTTTTT
Since we are of the view that the period mentioned in
Section 13B(2) is not mandatory but directory, it will
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I January 2018
be open to the Court to exercise its discretion in the
facts and circumstances of each case where there is
no possibility of parties resuming cohabitation and
there are chances of alternative rehabilitation.
TTTTTTT
Where the Court dealing with a matter is satisfied that
a case is made out to waive the statutory period under
Section 13B(2), it can do so after considering the
following:
i) the statutory period of six months specified
in Section 13B(2), in addition to the statutory
period of one year under Section 13B(1) of
separation of parties is already over before the
first motion itself;
ii) all efforts for mediation/conciliation
including efforts in terms of Order XXXIIA Rule
3 CPC/Section 23(2) of the Act/Section 9 of
the Family Courts Act to reunite the parties
have failed and there is no likelihood of success
in that direction by any further efforts;
iii) the parties have genuinely settled their
differences including alimony, custody of child
or any other pending issues between the
parties;
iv) the waiting period will only prolong their
agony.
TTTTTTT
Authorities relied upon : 2013 (15) SCC 547, 2011 (15)
SCC 612, 2011 (14) SCC 614, 2010 (15) SCC 390, 2010
(15) SCC 316,AIR 2010 Ker 157, 2008 (7) SCC 734, 2007
(2) SCC 263, 2005 (13) SCC 410,AIR 2005 MP106 (DB),
2004 (1) SCC 123, 1997 (11) SCC 490,AIR 1994 Kar 12
(DB), AIR 1990 Del 146, AIR 1986 AP 167 (DB).
Reference : Supreme Court. Amardeep Singh v.
Harveen Kaur, Civil Appeal No. 11158 of 2017 [Arising
out of Special Leave Petition (Civil) No. 20184 of 2017].
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LAW FOR YOU
WHEN PROCEEDINGS AGAINST
DIRECTOR
OF
COMP ANY
UNSUSTAINABLE?
Unless complaint contains all necessary factual
allegations constituting each of ingredients of offence
under S. 138 of Negotiable Instruments Act (26 of
1881) Court cannot take cognizance of offence.
Disclosure of name of person drawing cheque is one
of factual allegations which complaint is required to
contain. Otherwise in absence of any authority of law
to investigate offence under S. 138, there would be no
person against whom Court can proceed. There cannot
be prosecution without an accused. Offence under S.
138 is person specific. Therefore, Parliament declared
under S. 142 that provisions dealing with taking
cognizance contained in Criminal Procedure Code
should give way to procedure prescribed under S. 142.
It must also be remembered that S. 142 does not either
contemplate report to police or authorise Court taking
cognizance to direct police to investigate into
complaint.
Reference: SC. N. Harihara Krishnan v. J.
Thomas, criminal appeal no. 1534 of 2017
[arising out of SLP (Crl.) No. 1439 of 2017].
GRANT OR REFUSAL TO GRANT
BAIL, LIES WITHIN DISCRETION OF
COURT
Court granting bail should exercise its discretion in a
judicious manner and not as a matter of course.
Though at stage of granting bail a detailed
examination of evidence and elaborate documentation
of merit of case need not be undertaken, there is need
to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly
where accused is charged of having committed a
serious offence. Any order devoid of such reasons
would suffer from non-application of mind. It is also
necessary for court granting bail to consider, among
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other circumstances, following factors also before
granting bail; they are:
(a) nature of accusation and severity of
punishment in case of conviction and nature
of supporting evidence.
(b) Reasonable apprehension of tempering
with witness or apprehension of threat to
complainant.
(c) Prima facie satisfaction of court in support
of charge.
Though an accused has a right to make successive
applications for grant of bail, court entertaining such
subsequent bail applications has a duty to consider
reasons and grounds on which earlier bail applications
were rejected. In such cases, court also has a duty to
record fresh grounds which persuade it to take a view
different from one taken in earlier applications. At
stage of granting bail, a detailed examination of
evidence and elaborate documentation of merits of
case has not to be undertaken. Grant or refusal to grant
bail lies within discretion of court. Grant or denial is
regulated, to a large extent, by facts and circumstances
of each particular case. But at same time, right to bail
is not to be denied merely because of sentiments of
community against accused.
Reference: SC. Lt. Col. Prasad Shrikant
Purohit v. State of Maharashtra, criminal
appeal no. 1448 of 2017 [arising out of Special
Leave Petition (Cri.) No. 3716 of 2017].
SUB-LETTING DONE BEHIND BACK
OF LANDLORD, COURT CAN DRAW
INFERENCE UPON FACTS OF CASE
Sub-tenancy or sub-letting comes into existence when
tenant gives up possession of tenanted
accommodation, wholly or in part, and puts another
person in exclusive possession thereof. This
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LAW FOR YOU
agreement comes about obviously under a mutual
agreement or understanding between tenant and
person to whom possession is so delivered. Landlord
is kept out of scene. Rather, scene is entered behind
back of landlord, concealing overt acts and
transferring possession clandestinely to a person who
is an utter stranger to landlord, in sense that landlord
had not let out premises to that person nor had he
allowed or consented to his entering into possession
of that person, instead of tenant, which ultimately
reveals to landlord that tenant to whom property was
let out has put some other person in possession of
that property. In such situation, it would be difficult
for landlord to prove, by direct evidence, contract or
agreement or understanding between tenant and subtenant. It would also be difficult for landlord to prove,
by direct evidence, that person to whom property had
been sub-let had paid monetary consideration to
tenant. Payment of rent, undoubtedly, is an essential
element of lease or sub-lease. It may be paid in cash
or in kind or may have been paid or promised to be
paid. It may have been paid or promised to be paid
periodically. Since payment of rent or monetary
consideration may have been made secretly, law does
not require such payment to be proved by affirmative
evidence and court is permitted to draw its own
inference upon facts of case.
Reference: SC. Prem Prakash v. Santosh Kumar
Jain and Sons (HUF) and another, civil appeal
no. 11106 of 2017 [arising out of Special Leave
Petition (C) No. 7149 of 2015].
SECTION 307 IPC PROVIDES THREE
PUNISHMENTS FOR THREE
CLASSES OF CASES
Penal Code (45 of 1860), Ss. 307 provides three
punishments for three classes of nature of cases. One
class of cases, which falls in first part of Section,
prescribed a term "which may extend to ten years and
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I January 2018
fine", second class of cases, which falls in second part
of Section, prescribes either "imprisonment for life" or
"such punishment, which is prescribed in first part"
and third class of cases is when any person offending
under S. 307 IPC is under sentence of imprisonment
for life, causes hurt, be punished with "death". While
sentencing accused, Court is required to take into
account several factors arising in case, such as nature
of offence committed, manner in which it was
committed, its gravity, motive behind commission of
offence, nature of injuries sustained by victim, whether
injuries sustained were simple or grievous in nature,
weapons used for commission of offence and any
other extenuating circumstances if any. Once these
factors are considered while imposing sentence, there
remains little scope to interfere in quantum of
punishment.
Reference: SC. Ahsan v. State of U.P., criminal
appeal no. 1525 of 2017 [arising out of S.L.P.
(Cri.) No. 5004 of 2015].
EQUAL PAY FOR EQUAL WORK
It is cardinal principle of law that Govt. has to abide
by rule of law and uphold values and principles of
Constitution. Respondents herein alleged that creating
an artificial distinction between persons in same cadre
would amount to violation of Art. 14 i.e., equality
before law and hence, such an act cannot be
sustained. Doctrine of equality is dynamic and
evolving concept having many dimensions. Arts. 14,
18 of Constitution, besides assuring equality before
law and equal protection of laws, also disallow
discrimination which lacks object of achieving
equality, in matters of employment. It is well-settled
that though Article 14 forbids class legislation but it
does not forbid reasonable classification. When any
rule of statutory provision providing classification is
assailed on ground that it is contrary to Article 14, its
validity can be sustained if it satisfies two tests,
namely, that classification was to be based on an
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intelligible differentia which distinguishes persons or
things grouped together from others left out of group,
and differentia in question must have reasonable nexus
to object sought to be achieved by rule or statutory
provision in question. In other words, there must be
some rational nexus between basis of classification
and object intended to be achieved by Statute or Rule.
Principle of equality is also fundamental in formulation
of any policy by State and glimpse of same can be
found in Arts. 38, 39, 39-A, 43 and 46 embodied in Part
IV of Constitution. These Articles of Constitution
mandate that State is under constitutional obligation
to assure social order providing justice-social,
economic and political, by inter alia, minimizing
monetary inequalities, and by securing right to
adequate means of livelihood and by providing for
adequate wages so as to ensure, an appropriate
standard of life, and by promoting economic interests
of weaker sections. Meaning thereby, if State is giving
some economic benefits to one class while denying
same to other then onus of justifying same lies on
State specially in circumstances when both classes or
group of persons were treated as same in past by
State.
Reference: SC. State of Punjab and Ors. v. Senior
Vocational Staff Masters Association and Ors.,
civil appeal no. 632 of 2008.
ACCIDENT ARISING OUT OF AND IN
COURSE OF EMPLOYMENT
Words 'arising out of' and 'in the course of
employment' are in fact two different phrases and have
been understood as such. If accident had occurred on
account of a risk which is an incident of employment,
claim shall succeed unless, of course, workman had
exposed himself to an added peril by his own
imprudent act. Phrase 'in the course of employment'
suggests that injury must be caused during currency
of employment, whereas expression 'out of
employment' conveys idea that there must be a casual
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connection between employment and injury caused to
workman as a result of accident.
Reference: SC. Daya Kishan Joshi and Anr. v.
Dynemech Systems Pvt. Ltd., civil appeal no.
10265 of 2017 [arising out of SLP (C) No.
30379 of 2014].
RIGHT TO PRIVACY
Privacy is concomitant of right of individual to exercise
control over his or her personality. It finds an origin
in notion that there are certain rights which are natural
to or inherent in human being. Natural rights are
inalienable because they are inseparable from human
personality. Human element in life is impossible to
conceive without existence of natural rights and
integrally founded on sanctity of life. Dignity is
associated with liberty and freedom. No civilized State
can contemplate an encroachment upon life and
personal liberty without authority of law. Neither life
nor liberty is bounties conferred by State nor does
Constitution create these rights. Right to life has
existed even before advent of Constitution. In
recognizing right, Constitution does not become sole
repository of right. It would be preposterous to
suggest that democratic Constitution without Bill of
Rights would leave individuals governed by State
without either existence of right to live or means of
enforcement of right. Right to life being inalienable to
each individual, it existed prior to Constitution and
continued in force under Art. 372 of Constitution.
Concept of privacy in other jurisdictions based on
comparative law perspective - Each country is
governed by its own constitutional and legal structure.
Constitutional structures have an abiding connection
with history, culture, political doctrine and values
which society considers as its founding principles.
Foreign judements must hence be read with
circumspection ensuring that text is not read isolated
from its context. Countries which have been dealt with
are: (i) United Kingdom; (ii) United States; (iii) South
January 2018
I 39
LAW FOR YOU
Africa; and (iv) Canada. Development of jurisprudence
on right to privacy in United States of America shows
that even though there is no explicit mention of word
'privacy' in Constitution, courts of country have not
only recognized right to privacy under various
Amendments of Constitution but also progressively
extended ambit of protection under right to privacy.
In its early years, focus was on property and
protection of physical spaces that would be
considered private such as an individual's home. This
'trespass doctrine' became irrelevant when it was held
that what is protected under right to privacy is
"people, not places". 'Reasonable expectation of
privacy' test has been relied on subsequently by
various other jurisdictions while developing right to
privacy. Having located right to privacy in 'person',
American jurisprudence on right to privacy has
developed to shield various private aspects of
person's life from interference by State - such as
conscience, education, personal information,
communications and conversations, individual beliefs,
thoughts and emotions, political and other social
groups. In South Africa, interim as well as Final
Constitution of South Africa contains explicit
provisions guaranteeing right to privacy. Judges of
South African Supreme Court have given an expansive
meaning to right, making significant inter-linkages
between equality, privacy and dignity. In doing so, it
has been acknowledged that right to privacy does not
exist in vacuum, its contravention having significant
bearing on other citizen rights as well. Such an
interpretation may prove to have catalytic effect on
country transitioning from an apartheid State to
democratic nation. Canadian Supreme Court has used
provisions of Canadian Charter of Rights and Freedoms
of 1982 to expand scope of right to privacy , used
traditionally to protect individuals from an invasion of
their property rights, to an individual's "reasonable
expectation of privacy". Right to privacy has been held
to be more than just physical right as it includes
privacy in information about one's identity. Privacy has
40
I January 2018
been held to be an intrinsic element of right to life and
personal liberty under Art. 21 and as constitutional
value which is embodied in fundamental freedoms
embedded in Part III of Constitution. Like right to life
and liberty, privacy is not absolute. Limitations which
operate on right to life and personal liberty would
operate on right to life and personal liberty would
operate on right to privacy . Any curtailment or
deprivation of that right would have to take place
under regime of law. Procedure established by law
must be fair, just and reasonable. Law which provides
for curtailment of right must also be subject to
constitutional safeguards. Judgement in AIR 1954 SC
300 holds essentially that right to privacy cannot be
read into provisions of Art. 20(3). Judgement does not
specifically adjudicate on whether right to privacy
would arise from any of other provisions of rights
guaranteed by Part III including Arts. 21, 19.
Observation that privacy is not right guaranteed by
Indian Constitution is not reflective of correct position
and is over-ruled to extent to which it indicates to
contrary. Decision in AIR 1963 SC 1295 to extent that
it holds right to privacy is not protected by
Constitution stands over-ruled. Therefore, in view of
all reasons, Supreme Court held that 1.Life and personal liberty are inablienable
rights. These are rights which are inseparable
from dignified human existence. Dignity of
individual, equality between human beings
and quest for liberty are foundational pillars
of Indian Constitution;
2.Life and personal liberty are not creations
of Constitution. These rights are recognized
by Constitution as inhering in each individual
as an intrinsic and inseparable part of human
element which dwells within;
3.Privacy is constitutionally protected right
which emerges primarily from guarantee of
life and personal liberty in Art. 21 of
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Constitution. Elements of privacy also arise
in varying contexts from other facets of
freedom and dignity recognized and
guaranteed by fundamental rights contained
in Part III;
4.Judicial recognition of existence of
constitutional right of privacy is not an
exercise in nature of amending Constitution
nor is Court embarking on constitutional
function of that nature which is entrusted to
Parliament;
5.Privacy is constitutional core of human
dignity. Privacy has both normative and
descriptive function. At normative level
privacy sub-serve those eternal values upon
which guarantees of life, liberty and freedom
are founded. At descriptive level, privacy
postulates fundle of entitlements and interests
which lie at foundation of ordered liberty;
6.Privacy includes at its core pres ervation of
personal intimacies, sanctity of family life,
marriage, procreation, home and sexual
orientation. Privacy also connotes right to be
left alone. Privacy safeguards individual
autonomy and recognizes ability of individual
to control vital aspects of his or her life.
Personal choices governing way of life are
intrinsic to privacy . Privacy protects
heterogeneity and recognizes plurality and
diversity of our culture. While legitimate
expectation of privacy may vary from intimate
zone to private zone and from private to
public arenas, it is important to underscore
that privacy is not lost or surrendered merely
because individual is in public place. Privacy
attaches to person since it is an essential
facet of dignity of human being;
7.Supreme Court has not embarked upon an
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exhaustive enumeration or catalogue of
entitlements or interests comprised in right to
privacy. Constitution must evolve with felt
necessities of time to meet challenges thrown
up in democratic order governed by rule of
law. Meaning of Constitution cannot be
frozen on perspectives present when it was
adopted. Technological change has given
rise to concerns which were not present
seven decades ago and rapid growth of
technology may render obsolescent many
notions of present. Hence interpretation of
Constitution must be resilient and flexible to
allow future generations to adapt its content
bearing in mind its basic or essential features;
8.Like other rights which form part of
fundamental freedoms protected by Part III,
including right to life and personal liberty
under art. 21, privacy is not an absolute right.
Law which encroaches upon privacy will
have to withstand touchstone of permissible
restrictions on fundamental rights. In context
of Art. 21 an envasion of privacy must be
justified on basis of law which stipulates
procedure which is fair, just and reasonable.
Law must also be valid with reference to
encroachment on life and personal liberty
under Art. 21. An invasion of life or personal
liberty must meet three-fold requirement of (i)
legality, which postulates existence of law; (ii)
need, defined in terms of legitimate state aim;
and (iii) proportionality which ensures
rational nexus between objects and means
adopted to achieve them; and
9.Privacy has both positive and negative
content. Negative content restrains State from
committing an intrusion upon life and
personal liberty of citizen. Its positive
content imposes an obligation on State to
January 2018
I 41
LAW FOR YOU
take all necessary measures to protect privacy
of individual.
10. Informational privacy is facet of right to
privacy. Dangers to privacy in an age of
information can originate not only from state
but from non-State actors as well.
Reference: SC. Justice K.S. Puttaswamy (Retd.)
and Anr. v. Union of India and Ors., Writ Petition
(Civil) Nos. 494 of 2012, 833, 829, 932 of 2013,
37, 220 of 2015, 797 of 2016, 342 and 372 of
2017.
PROCEEDING
U/S
7A OF
EMPLOYEES' PROVIDENT FUNDS
AND MISCELLANEOUS PROVISIONS
ACT WILL PARTAKES CHARACTER
OF COURT
S. 2(i) of Criminal P.C. defines judicial proceeding to
include any proceedings in course of which evidence
is or may be legally taken on oath. This power is
indisputably statutorily vested in authority holding
proceedings u/s. 7-A of Employees' Provident Funds
and Miscellaneous Provisions Act (19 of 1952).
Legislature, in its wisdom, considering seriousness of
adjudicatory process under said provision, vested it
with nature of judicial proceeding within meaning of
Ss. 193 and 228 IPC. If proceeding u/s. 7-A is deemed
to be judicial proceeding by fiction, it must be carried
to its logical conclusion. Therefore, such judicial
proceeding can well be equated for that purpose with
Court u/s. 195(1)(b)(i). Proceedings u/S. 7-A will partake
character of court.
Reference: SC. Amit Vashistha v. Suresh and
another, criminal appeal no. 245 of 2010.
ESSENTIAL INGREDIENTS OF
CRIMINAL CONSPIRACY
are: (i) and agreement between two or more persons;
(ii) agreement must relate to doing or causing to be
done either (a) an illegal act; or (b) an act which is
not illegal in itself but is done by illegal means. It is
therefore plain that meeting of minds of two or more
persons for doing or causing to be done an illegal act
or an act by illegal means is sine qua non of criminal
conspiracy. It is extremely difficult to adduce direct
evidence to prove conspiracy. Existence of conspiracy
and its objective can be inferred from surrounding
circumstances and conduct of accused. In some cases,
indulgence in illegal act or legal act by illegal means
may be inferred from knowledge itself.
Reference: SC. Rajiv Kumar v. State of U.P. and
another, criminal appeal no. 251 with 252 of
2017.
INHERENT JURISDICTION HAS TO BE
EXERCISED
BY
INVOKING
DOCTRINE OF "EX DEBITO
JUSTITIAE"
Extraordinary power under Art. 226 or inherent power
under S. 482 of Code can be exercised by High Court,
either to prevent abuse of process of court or
otherwise to secure ends of justice. Where
allegations made in First information Report/
complaint or outcome of investigation as found in
charge sheet, even if they are taken at their face value
and accepted in their entirety do not prima facie
constitute any offence or make out case against
accused; where allegations do not disclose
ingredients of offence alleged; where controverted
allegations made in FIR or complaint and material
collected in support of same do not disclose
commission of offence alleged and make out case
against accused; where criminal proceedings is
maliciously instituted with an ulterior motive for
wreaking vengeance on accused and with a view to
spite him due to private and personal grudge, power
Essential ingredients of offence of criminal conspiracy
42
I January 2018
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under Art. 226 of Constitution of India or S. 482 of
Code may be exercised. Court does not function as
Court of appeal or revision while exercising power
under S. 482 or Art. 226. Inherent jurisdiction under
S. 482 of Code though wide has to be exercised
sparingly, carefully or with caution and only when
such exercise is justified by tests specifically laid
down under S. 482 itself. It is to be exercised ex debito
justitiae to do real and substantial justice, for
administration of which alone courts exist. Court
must be careful and see that its decision in exercise
of its powers is based on sound principles. Inherent
powers should not be exercised to stifle legitimate
prosecution.
Reference: SC. Varala Bharath Kumar and
another v. State of Telangana and another,
criminal appeal no. 1565 of 2017 [arising from
SLP (Crl.) No. 5458 of 2016].
PRINCIPLES FOR APPOINTMENT OF
ARBITRATOR
Fact that named arbitrator is employee of one of the
parties is ipso facto not a ground to raise presumption
of bias or partiality or lack of independence on his part.
There can however be justifiable apprehension about
independence or impartiality of employee arbitrator, if
such person was controlling or dealing authority in
regard to subject contract or if he is direct subordinate
to officer whose decision is subject-matter of dispute.
Unless cause of action for invoking jurisdiction under
Clauses (a), (b) or (c) of S. 11(6) of 1996 Act arises,
there is no question of Chief Justice or his designate
exercising power u/S. 11(6). Chief Justice or his
designate while exercising power u/s. 11(6) shall
endeavour to give effect to appointment procedure
prescribed in arbitration clause. While exercising such
power u/s. 11 (6), if circumstances exist, giving rise to
justifiable doubts as to independence and impartiality
of person nominated, or if other circumstances warrant
appointment of independent arbitrator by ignoring
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procedure prescribed, Chief Justice or his designate
may, for reasons to be recorded ignore designated
arbitrator and appoint someone else.
Reference: SC. Aravali Power Company Pvt.
Ltd. v. M/s. Era Infra Engineering Ltd., civil
appeal nos. 12627-12628 with 12629-12630
of 2017 [arising out of Special Leave Petition
(Civil) Nos. 25206-25207 of 2016 and 503504 of 2017].
SARFAESI ACT APPLIES TO ALL
CLAIMS ALIVE AT TIME WHEN IT
COMES INTO ENFORCEMENT
Scheme of Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest
Act (54 of 2002) [SARFAESI Act], is really to provide
procedural remedy against security interest already
created. Therefore, existing borrower, who had been
granted financial assistance was covered u/S. 2(f) of
the said Act as 'borrower'. Not only this expression,
definition clauses dealing with 'debt securities',
'financial assistance', 'financial assets', etc., clearly
convey legislative intent that SARFAESI Act applies
to all existing agreements irrespective of fact whether
lender was notified 'financial institution' on date of
execution of agreement with borrower or not. Scheme
of SARFAESI Act sets out expeditious, procedural
methodology, enabling bank to take possession of
property for non-payment of dues, without
intervention of court. Mere fact that more expeditious
remedy is provided under SARFAESI Act does not
mean that it is substantive in character or has created
altogether new right.
Reference: SC. M.D. Frozen Foods Exports Pvt.
Ltd. and others v. Hero Fincrop Ltd., civil
appeal no. 15147 of 2017 [arising out of SLP
(C) No. 19559 of 2017].
ooooooo
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CUSTODIAL DEATH
PRISONER'S BODY MUST BE TREATED WITH
RESPECT AND DIGNITY
C
USTODIAL VIOLENCE HAS ALWAYS BEEN A MATTER OF GREAT CONCERN FOR ALL CIVILIZED
SOCIETIES. CUSTODIAL VIOLENCE could take the form of third degree methods to extract information
- the method used need not result in any physical violence but could be in the form of psychological violence.
Custodial violence could also include a violation of bodily integrity through sexual violence - it could be to
satisfy the lust of a person in authority or for some other reason. The 'Mathura Rape Case' is one such incident
that most are familiar with. Custodial violence could, sometimes, lead to the death of its victim who is in a
terribly disadvantaged and vulnerable condition. All " these forms of custodial violence make it abhorrent and
invite disparagement from all sections of civilized society.
Ex-Chief Justice R. C. Lahoti highlighted one aspect of custodial deaths, namely, unnatural deaths in prisons.
This was through a letter addressed to Supreme Court which has been treated as a public interest litigation.
In the judgment and order of 5th February, 2016 [Re- Inhuman Conditions in 1382 Prisons [2016AIR (SC) 993]
the Court had drawn attention to four issues regarding prisons raised in the letter addressed by former Chief
Justice Lahoti. The four issues are: (i) Overcrowding in prisons; (ii) Unnatural death of prisoners; (iii) Gross
inadequacy of staff, and (iv) Available staff being untrained or inadequately trained
In the order of 5th February, 2016 the Supreme Court had dealt with the issue of overcrowding in prisons and
had issued certain directions. In the present decision, the Court consider unnatural deaths in prisons. On this
issue of unnatural deaths in prisons, the only reliable information available is from the National Crime Records
Bureau or the NCRB. The website of the NCRB [ncrb.gov.in] indicates that deaths in judicial custody, both
natural and unnatural, are as under:
Year
Natural deaths
Unnatural deaths
2012
1345
126
2013
1482
115
2014
1507
195
2015
1469
115
The distinction made by the NCRB between natural and unnatural deaths is unclear . For example, if a prisoner
dies due to a lack of proper medical attention or timely medical attention, would that be classified as a natural
death or an unnatural death? This needs to be explained as submitted by the learned Amicus.
Be that as it may, the break-up of unnatural deaths given by the NCRB on its website is as under:
44
Year
Suicide
Murder
by
inmates
Death
due to
firing
Assault by
outside
elements
Negligence
by jail
staff
Others
2012
87
4
10
4
0
22
2013
70
8
1
12
0
23
2014
94
12
2
4
1
82
2015
77
11
0
7
0
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I January 2018
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CUSTODIAL DEATH
Again, there is a lack of clarity in the classification of
unnatural deaths in the category of 'others'. What
does this category encompass? The Court hss not
been provided any information in this regard by the
Union of India and it was submitted by the learned
Amicus, that the NCRB should be directed to explain
the difference not only between a natural death and
an unnatural death but also to clarify the subcategorization of 'others' unnatural deaths.
On the issue of defining natural and unnatural deaths,
the learned Amicus drew Court's attention to the
Guidelines on Investigating Deaths in Custody issued
by the International Committee of the Red Cross
(ICRC). According to the ICRC, 'death' is the
irreversible cessation of all vital functions, including
brain activity. Death is 'natural' when it is caused solely
by disease and/or the aging process. It is 'unnatural'
when its causes are external, such as intentional injury
(homicide, suicide), negligence or unintentional injury
(death by accident). The Court has perused the
guidelines provided by the ICRC and was of the view
that these guidelines deserve consideration and
circulation by the Central Government and all the State
Governments.
It was pointed out by the learned Amicus that a
disproportionately large number of unnatural deaths
were attributable to suicides. In this regard, it was
brought to the notice of the Court by the learned
Amicus that in relation to suicides in prisons, the
National Human Rights Commission or the NHRC has
published a monograph sometime in December 2014
entitled "Suicide in Prison - prevention strategy and
implication from human rights and legal points of
view". This monograph records that during the period
2007-2011, deaths in prisons on account of suicide
formed 71% of the total number of unnatural deaths.
It was also pointed out that the average suicide rate
among the general public for this period is 11 (per
100,000) whereas the average suicide rate in prison is
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16.9 (per 100,000). In other words, the average suicide
rate in prisons is over 50% more than in normal
conditions. The monograph refers to certain
communications issued by the NHRC from time to time
on the aspect of custodial deaths.
The study conducted by the NHRC as reflected in the
monograph suggests that there are two primary
causes for all jail suicides - the first is the environment
in the jail, which is apparently 'conducive' to suicidal
behaviour, and the second is the crisis situation faced
by an inmate.
Detailing the characteristics of a prison environment
that make suicides in prisons more likely, the NHRC
monograph mentions the following:
1. Authoritarian environment.
2. No apparent control over the future.
3. Isolation from family , friends and
community.
4. The shame of incarceration.
5. Dehumanizing aspects of incarceration.
6. Fears.
7. Staff insensitivity to the arrest and
incarceration phenomenon
8. Hostility and bullying by other inmates.
9. Lack of adequate medical and
psychological counseling and treatment
facility
10. Delay in deciding the parole.
Similarly, the characteristics of a crisis situation are
mentioned and they are as follows:
1. Recent excessive drinking and/or use of
drugs.
2. Recent loss of stabilizing resources.
3. Severe guilt or shame over the offence.
January 2018
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CUSTODIAL DEATH
4. Same-sex rape.
5. Current mental illness.
6. Poor health or terminal illness.
7. Approaching an emotional breaking point.
It is clear from the above that the role of the NHRC is
extremely important whenever there is an unnatural
death in a prison. Although the NHRC has issued
detailed instructions from time to time, it does appear
however that these instructions are not being taken
seriously but are being followed more in the breach.
The learned Amicus submitted that the General
Assembly of the United Nations adopted the Standard
Minimum Rules for the Treatment of Prisoners (the
Nelson Mandela Rules) adopted on 17th December,
2015. These Rules provide useful internationally
accepted guidelines for implementation by prison
administrations across the country. He drew the
Court's particular attention to Rules 58 to 63 which deal
with prisoner contact with the outside world. It was
submitted that merely because a person is in prison,
it does not mean that he or she should be cut off from
the outside world. In fact, the prisoner should be
allowed to communicate with his family and friends at
regular intervals and should also be permitted to
communicate and consult with a legal adviser of his
or her choice. This by itself could have a soothing
effect on the prisoner. He submitted that prisoners
should be informed of important items of news through
newspapers, periodicals or special institutional
publications so that contact with the outside world is
maintained. This, according to the learned Amicus,
would substantially reduce the feeling of isolation that
a prisoner has and would have an impact on his or
her mental stability thereby reducing the possibility
of any harmful activity by the prisoner.
The Court was of the view that on the facts and in
the circumstances before Court, the suggestions put
46
I January 2018
forward by the learned Amicus and the learned counsel
appearing for the National Forum deserve acceptance
and, therefore, the Court issued the following
directions:
1. The Secretary General of this Court will
transmit a copy of this decision to the
Registrar General of every High Court within
one week with a request to the Registrar
General to place it before the Chief Justice of
the High Court. We request the Chief Justice
of the High Court to register a suo motu
public interest petition with a view to
identifying the next of kin of the prisoners
who have admittedly died an unnatural death
as revealed by the NCRB during the period
between 2012 and 2015 and even thereafter,
and award suitable compensation, unless
adequate compensation has already been
awarded.
2. The Union of India through the Ministry
of Home Affairs will ensure circulation within
one month and in any event by 31st October,
2017 of (i) the Model Prison Manual, (ii) the
monograph prepared by the NHRC entitled
"Suicide in Prison - prevention strategy and
implication from human rights and legal
points of view", (iii) the communications sent
by the NHRC referred to above, (iv) the
compendium of advisories issued by the
Ministry of Home Affairs to the S tate
Governments, (v) the Nelson Mandela Rules
and (vi) the Guidelines on Investigating
Deaths in Custody issued by the
International Committee of the Red Cross to
the Director General or Inspector General of
Police (as the case may be) in charge of
prisons in every State and Union Territory.
All efforts should be made, as suggested by
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CUSTODIAL DEATH
the NHRC and others, to reduce and possibly
eliminate unnatural deaths in prisons and to
document each and every death in prisons both natural and unnatural.
3. The Union of India through the Ministry
of Home Affairs will direct the NCRB to
explain and clarify the distinction between
unnatural and natural deaths in prisons as
indicated on the website of the NCRB and in
its Annual Reports and also explain the subcategorization 'others' within the category of
unnatural deaths. The NCRB should also be
required to sub-categorize natural deaths.
The sub-categorization and clarification
should be complied with by 31st October,
2017.
4. The State Governments should, in
conjunction with the State Legal Services
Authority (SLSA), the National and State
Police Academy and the Bureau of Police
Research and Development conduct training
and sensitization programmes for senior
police officials of all prisons on their
functions, duties and responsibilities as also
the rights and duties of prisoners. A copy of
this order be sent by the Registry of this
Court to the Member-Secretary of each SLSA
to follow-up and ensure compliance.
5. The necessity of having counselors and
support persons in prisons cannot be overemphasized. Their services can be utilized to
counsel and advice prisoners who might be
facing some crisis situation or might have
some violent or suicidal tendencies. The State
Governments are directed to appoint
counselors and support persons for
counseling prisoners, particularly first-time
offenders. In this regard, the services of
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recognized NGOs can be taken and
encouraged.
6. While visits to prison by the family of a
prisoner should be encouraged, it would be
worthwhile to consider extending the time or
frequency of meetings and also explore the
possibility of using phones and video
conferencing for communications not only
between a prisoner and family members of
that prisoner, but also between a prisoner and
the lawyer, whether appointed through the
State Legal Services Authority or otherwise.
7. The State Legal Services Authorities
(SLSAs) should urgently conduct a study on
the lines conducted by the Bihar State Legal
Services Authority in Bihar and the
Commonwealth Human Rights Initiative in
Rajasthan in respect of the overall conditions
in prisons in the State and the facilities
available. The study should also include a
performance audit of the prisons, as has been
done by the CAG. The SLSAs should also
assess the effect and impact of various
schemes framed by NALSA relating to
prisoners. We request the Chief Justice of
every High Court, in the capacity of Patronin-Chief of the State Legal Services Authority,
to take up this initiative and, if necessary, set
up a Committee headed preferably by the
Executive Chairperson of the State Legal
Services Authority to implement the
directions given above.
8. Providing medical assistance and facilities
to inmates in prisons needs no reaffirmation.
The right to health is undoubtedly a human
right and all State Governments should
concentrate on making this a reality for all,
including prisoners. The experiences in
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CUSTODIAL DEATH
Karnataka, West Bengal and Delhi to the
effect that medical facilities in prisons do not
meet minimum standards of care is an
indication that the human right to health is
not given adequate importance in prisons
and that may also be one of the causes of
unnatural deaths in prisons. The State
Governments are directed to study the
availability of medical assistance to prisoners
and take remedial steps wherever necessary.
9. The constitution of a Board of Visitors
which includes non-official visitors is of
considerable importance so that eminent
members of society can participate in
initiating reforms in prisons and in the
rehabilitation of prisoners. Merely changing
the nomenclature of prisons to 'Correction
Homes' will not resolve the problem. Some
proactive steps are required to be taken by
eminent members of society who should be
included in the Board of Visitors. The State
Governments are directed to constitute an
appropriate Board of Visitors in terms of
Chapter XXIX of the Model Prison Manual
indicating their duties and responsibilities.
This exercise should be completed by 30th
November, 2017.
10. The suggestion given by the learned
Amicus of encouraging the establishment of
'open jails' or 'open prisons' is certainly worth
considering. It was brought to our notice that
the experiment in Shimla (Himachal Pradesh)
and the semiopen prison in Delhi are
extremely successful and need to be carefully
studied. Perhaps there might be equally
successful experiments carried out in other
States as well and, if so, they require to be
documented, studied and emulated.
48
I January 2018
11. The Ministry of Women & Child
Development of the Government of India
which is concerned with the implementation
of Juvenile Justice (Care and Protection of
Children) Act, 2015 is directed to discuss with
the concerned officers of the State
Governments and formulate procedures for
tabulating the number of children (if any) who
suffer an unnatural death in child care
institutions where they are kept in custody
either because they are in conflict with law
or because they need care and protection.
Necessary steps should be taken in this
regard by 31st December, 2017.
The operative part of the judgment reads as under:Adverting to the Nelson Mandela Rules, the learned
Attorney General also expressed the view that State
Governments have several development priorities and
while they will certainly look after the interests of
prisoners, there are other issues that might require
greater attention and greater financial commitment.
While this may be so, we are clearly of the view that
Article 21 of the Constitution cannot be put on the
back burner and as mentioned in the Mandela Rules
even prisoners are entitled to live a life of dignity.
Therefore, no State Government can shirk its duties
and responsibilities for providing better facilities to
prisoners. If a State Government is unable to do so, it
should be far more circumspect in arresting and
detaining persons, particularly under-trial prisoners
who constitute the vast majority of those in judicial
custody. The State Governments and the prosecution
do not have to oppose every bail application nor do
they have to ask for the remand of every suspect
pending investigation. If the fundamental right to life
and liberty postulated by Article 21 of the
Constitution is to be given its true meaning, the
Central Government and the State Governments must
accept reality and not proceed on the basis that
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CUSTODIAL DEATH
prisoners can be treated as chattel.
TTTTTTT
The learned Attorney General adverted primarily to
the Model Prison Manual 2016 issued by the
Government of India through the Ministry of Home
Affairs.
is a positive impact on the ground. After all, even if it
is assumed that the Central Government has certain
constitutional limitations with regard to prison
management, surely, it cannot be said that the Central
Government need not share its expertise or give any
guidance to the State Governments.
TTTTTTT
TTTTTTT
It is not at all clear whether this information is
effectively passed on to the prisoners. Our attention
was also drawn to a handbook for prisoners
captioned "Prisoners Rights and Obligations"
prepared by the Bureau of Police Research and
Development. While we have no comment to make on
the contents of the handbook, it is again not clear
whether it is made available to all the prisoners and
even if it is made available, whether it is in a local
language that the prisoner understands or whether
the contents of the handbook are explained to the
prisoner in the event the prisoner is found to be
illiterate. In the absence of a prisoner having any
knowledge about his or her rights, a grievance
redressal mechanism is quite meaningless.
There is no documentation on the number of
unnatural deaths (if any) of children in child care
institutions and this should now be on the agenda of
the Central Government and the State Governments
(particularly the Department concerned with the
welfare of children) with far greater concern than has
been shown so far. The unnatural death of any child
in need of care and protection or in conflict with law
and in a child care institution needs attention since
it is these voiceless children who need to be heard. It
is time that unnatural deaths of children in child care
institutions are seriously looked into by all concerned
if we are to provide the children of our country with
a better future.
TTTTTTT
The Ministry of Women & Child Development of the
Government of India which is concerned with the
implementation of Juvenile Justice (Care and
Protection of Children) Act, 2015 is directed to
discuss with the concerned officers of the State
Governments and formulate procedures for tabulating
the number of children (if any) who suffer an
unnatural death in child care institutions where they
are kept in custody either because they are in conflict
with law or because they need care and protection.
Necessary steps should be taken in this regard by 31st
December, 2017.
The learned Attorney General then placed before us
a Compendium of Advisories on Prison Administration
2016 issued by the Government of India.
TTTTTTT
All that we can say in this regard is that while the
Central Government may have noble intentions and
is perhaps taking steps to improve prison
administration and to bring about reforms in prisons,
the fact remains that conditions in prisons leave a
lot to be desired and there are quite a few unnatural
deaths in prisons. Suggestions and recommendations
made by the Central Government do look good on
paper but they do not seem to have any remedial
effect. Perhaps it is time that the Ministry of Home
Affairs takes a more proactive interest in prisons and
prison reforms by having sensitization programmes
for those at the helm of affairs in prisons so that there
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TTTTTTT
TTTTTTT
Authorities relied upon : 1995 (3) SCC 600, 1984 (3)
SCC 82, 1983 (4) SCC 141.
Reference : Supreme Court. Re- Inhuman Conditions
In 1382 Prisons .
—————
January 2018
I 49
LIGHTER SIDE OF LA
W
LAW
After his Divorce a husband came out of the court
jumping, dancing, singing
His friend asked him why he was so happy.
He replied “Court has said to pay my wife half of
my salary.”
Friend asked “ So why are you happy?”
He said “From now on I can have half of my
salary.”
An important and very well publicized murder trial
was soon to begin. In preparation for the trial, the
tiresome jury selection process took place, each
side hotly contesting and dismissing potential
jurors.
One prospective juror, Dan, was called for his
question session.
He was asked, "Property holder?"
Dan replied, "Yes, I am, Your Honor."
Then he was asked, "Married or single?"
DID YOU KNOW?
n South
Dakota, U.S.
Movies that show police officers being
struck, beaten, or treated in an offensive
manner are forbidden.
n South
Carolina, U.S.
Fortune tellers are required to obtain a
special permit from the state.
n Rhode
Island
Island,, U.S.
Any marriage where either of the parties is
an idiot or lunatic is null and void.
n Pennsylvania,
U.S.
Any motorist driving along a country road
at night must stop every mile and send up
a rocket signal, wait 10 minutes for the
road to be cleared of livestock, and
continue.
Disclaimer - Lawteller Team is not responsible for the
actuality of the above information as available in the public
domain.
Dan responded, "Married for twenty years, Your
Honor."
Then the judge asked, "Formed or expressed an
opinion?"
Dan stated with certainty, "Not in twenty years,
Your Honor."
The drunken defendant appears yet again before
the tired judge, who says, "Y ou have been
constantly appearing before me for the past
twenty years."
Replied the drunk: "Can I help it if you can't get
promoted?"
50
I January 2018
"Let me remind you that in our legal system,
we are nice until proven naughty."
Courtesy - www.pinterest.com
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