This segment highlights the important issues of the Indian Legal System of the week objectively and with a magnified legal lens factually.
What made Headlines from the Supreme Court of India this week?
1. "Belong To Family Of Great Leaders Like Hamid Ansari, Former Vice President Of India": Gangster Mukhtar Ansari told the Supreme Court on in his affidavit. The Top Court was hearing the Uttar Pradesh Government's plea seeking transfer of Mukhtar, accused of allegedly shooting down a BJP MLA in 2005 from Rupnagar Jail, Punjab to Ghazipur Jail, Uttar Pradesh. The Punjab Government has defended retention of the accused. The Solicitor General submitted before top court that it was indeed surprising that the Punjab Government was supporting a terrorist and that identical contentions had been raised by the Government as well as the accused against U.P. Government's petition.
What To Expect in the Next Hearing? The case has been adjourned for hearing to February 24, 2021.
Bench: JJJ. Ashok Bhushan, BR Gavai, MR Shah
Case Title: State of Uttar Pradesh Vs. Jail Superintendent (Ropar) & Others.
2. Investigations will continue in FIRs filed against Rajdeep Sardesai (India Today), Mrinal Pande (Editorial Advisor, National Herald Group), Shashi Tharoor (Congress Leader), Zafar Agha (Editor In Chief, Quami Awaz), Paresh Nath, Anant Nath, Vinod K. Jose (of Caravan). The FIR's were filed against the accused, alleging that they had indulged in inciting people to violence with their misinformed reporting concerning the Tractor Rally violence in the capital. "There are legal precedents that which cover this issue, we are will issue notice," said Chief Justice of India SA Bobde when the case(s) were called on for hearing.
What to expect in the Next Hearing? Even though there is a stay on the arrest of the accused, the authorities are not barred from carrying out investigation. This means that when the case(s) are taken up after two weeks, the Court is expected to hear arguments on the quashing of the FIR's at length.
Bench: CJI SA Bobde, JJ. AS Bopanna & V. Ramasubramaniun
Case Title: Shashi Tharoor Vs UOI; Rajdeep Sardesai Vs State of UP; Anant Nath, Vinod Jose, Mrinal Pande, Zafar Agha, Paresh Nath Vs State of UP
3. The Supreme Court has recently issued notice in a petition by the Centre seeking transfer of transfer of cases pending across High Courts for regulation of Over The Top (OTT) platforms like Netflix, Prime Video, Disney Hotstar etc. It is pertinent to note that on February 9, the Court issued notice to the respondents on a plea seeking guidelines to regulate the hitherto unregulated, uncertified, pornographic, sexually explicit, vulgar, profane and legally restricted contents broadcasted on the online platforms including (but not limited to) Netflix, Amazon Prime etc., or in the alternative; seeking a writ/order/direction to the respondents to frame legal provisions/guidelines for the same, and; to remove such contents. The main contentions of the petitioner as raised in the petition revolves around setting up a regulating body, licensing, censorship and availability of pre-screening remedy. According to a new amendment in the Government of India (Allocation of Business) Rules, 1961 these OTT platforms along with content on current affairs and digital news will all be regulated by the Ministry of Information and Broadcasting.
Bench: JJ S Abdul Nazeer and Sanjiv Khanna
Case Title: UOI Vs. Sudhesh Kumar Singh & Anr.
4. The Supreme Court on issued notice in a petition by National Commission for Women as well as on an appeal by State of Maharashtra against the controversial "Skin-to-Skin" judgment by the Nagpur Bench of Bombay High Court on Section 7 POCSO Act. Earlier, the Top Court had stayed the application of the said judgment relying on the submission made by the learned AG calling it a ‘dangerous precedent’. Hearing Senior Counsel Ms. Geeta Luthra, Court prima facie stated that the NCW must approach the instant case as an intervener, however, on the submission made by the learned counsel on provisionary backing entitling NCW to be a party herein, Court agreed to issue notice. The Court however rejected petitions filed by Bharatiya Stree Sakthi and Youth Bar Association, stating that such NGOs had no locus standi in a criminal matter.
Bench: CJI SA Bobde, JJ. AS Bopanna & V. Ramasubramaniun
Case Title: State of Maharashtra Vs. Satish; NCW Vs. State of Maharashtra; Attorney General Vs. Satish
5. Argument's are underway in Facebook's MD, Ajit Mohan's Challenge To Issuance Of Delhi Assembly Summons In Supreme Court.
Bench: JJJ. Sanjay Kishan Kaul, Dinesh Maheshwari & Hrishikesh Roy
Case Title: Ajit Mohan Vs. Legislative Assembly, NCT Delhi
[Read Argument Analysis for February 10. Read Argument Analysis for February 4th Read Argument Analysis for February 3rd, Read Argument Analysis for February 2nd]
Important Apex Court Judgments of the Week commencing February 7, 2021
1. A Division Bench of the Supreme Court dismissed all objections to the winding up of six mutual fund schemes floated by Franklin Templeton and upheld the results of e-voting. The bench, precisely said, “We hold that for the purpose of clause (c) to Regulation 18(15), consent of the unitholders would mean consent by majority of the unitholders who have participated in the poll, and not consent of majority of all the unitholders of the scheme… we reject the objections to poll results and hold that the unitholders of the six schemes have given their consent by majority to windup the six schemes”.
Case Title: Franklin Templeton Trustee Services Private Limited And Another Vs. Amruta Garg And Others Etc.
Bench: JJ. S. Abdul Nazeer and Sanjiv Khanna
2. The Supreme Court has held that once the signature of an accused is established on a cheque, the onus to prove otherwise vests with the accused. A full judge bench said, “Considering the fact that there has been an admitted business relationship between the parties, we are of the opinion that the defence raised by the appellants does not inspire confidence or meet the standard of preponderance of probability.” Court further placed reliance on Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197, wherein the Supreme Court said, “Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.”
Case Title: M/s Kalamani Tex v. P.Balasubramanian
Bench: JJJ. N.V. Ramana, Surya Kant, Aniruddha Bose
Provisions/Statute involved: Section 118, Section 138, Section 139, Negotiable and Instrument Act, 1881.
3. The Supreme Court has held that Cardiomyopathy (a heart ailment) will not fall under definition of "Disability" in terms of the Rights of Persons with Disabilities Act. While dismissing the petition seeking disability compensation against a heart ailment sought by a Seaman. A three judge bench held, “Merely because of the beneficial objective, the clear expression in the agreement must not be ignored to give another meaning which could not have been the intention or the understanding, of the contracting parties.”
Case Title: Nawal Kishore v. Union of India
Bench: JJJ. Sanjay Kishan Kaul, Dinesh Maheshwari, Hrishikesh Roy
Provisions/ Statute Involved: Persons With Disabilities Act, 2005
4. The Supreme Court has observed that the embargo stipulated in terms of Section 10A of the Insolvency and Bankruptcy Code must be given a purposive interpretation. The top court, while dismissing the present petition and acknowledging the legislative intent behind Section 10A IBC, said, “Acceptance of the submission of the appellant would defeat the very purpose and object underlying the insertion of Section 10A. For, it would leave a whole class of corporate debtors where the default has occurred on or after 25 March 2020 outside the pale of protection because the application was filed before 5 June 2020.”
Case Title: Ramesh Kymal v. M/s Siemens Gamesa Renewable Power Pvt. Ltd.
Bench: JJ. D.Y. Chandrachud, M.R. Shah
Statute/Point of Law involved: Insolvency & Bankruptcy Code, 2016
5. The Supreme Court has held that the NEET cut-off percentile for admissions to BDS (dental) seats be reduced and admissions will be made till 18th February 2021 to fill the seats lying vacant. Setting aside the impugned order of Telangana High Court, the court said, “An administrative decision is flawed if it is illegal. There is no unfettered discretion in public law. Discretion conferred on an authority has to be necessarily exercised only for the purpose provided in a Statute.”
Case Title: Harshit Agarwal v. Union of India
Bench: JJ. L. Nageswara Rao, Krishna Murari
1. The Delhi High Court refused to quash the FIR filed by the complainant, a Hindu girl. The accused had falsely represented himself to have the name "Shiva" instead of "Akhtar", developed a physical relationship with her and married her.
2. The Delhi High Court has recently directed the GST Council to take up the aspect of exclusion of small scale manufacturers of ice cream from the benefit of section 10(1) of the Central Goods & Services Tax Act, 2017 in its next meeting within three months of pronouncement of this judgment.
3. The Delhi High Court has observed the Central Government should consider relevant factors while declining its consent for premature release of a convict. Justice Vibhu Bakhru emphasized that "Although the powers conferred under Sections 432 and 433 of the Cr.PC are discretionary, it is well settled that wherever discretion is conferred, the authority on which it is conferred must exercise it if the purposes for which such power is granted, are met. A statutory power is also coupled with a duty to exercise the same for the purpose for which it is conferred".
4. The Delhi High Court recently dismissed the petition to allow the petitioner to engage a Legal Practitioner in the enquiry proceedings initiated against her. "Regarding the documents relied upon against the charged employee, she only has to explain the factual position, and thus the Lawyer would not be in a position to assist the employee in this regard", Single Bench comprising Justice V. Kameswar Rao noted.
5. The Delhi High Court has recently observed that information under Right to Information Act, 2005 can only be denied if it is established that disclosure would impede the process of investigation. The Single Bench comprising of Justice Jayant Nath has observed that to deny information under Section 8(1)(h) of the Right To Information Act,2005; it must be established that the information sought is one which would impede the process of investigation or apprehension or prosecution of the offenders.
6. The Madras High Court has observed that the power to issue a writ of mandamus to interfere at a pre detention stage must be exercised only in exceptional cases. "Article 226 of the Constitution empowers the High Court to exercise its Writ Jurisdiction even at a pre-detention stage where this Court finds that there is a threat of a potential violation of the fundamental right under Article 21 of the Constitution. This Court in order to satisfy itself that there is a potential threat of violation of Article 21 of the Constitution, must have some materials before it. In other words, it cannot be based on mere apprehensions and this Court can only act on some overt acts", Single Bench of Justice N. Anand Venkatesh noted.
7. The Madras High court has observed that just because a man and woman were found locked inside the house, there cannot be a presumption of illicit sexual relationship. "Assuming that petitioner had allowed the co-employee to be a woman-folk at his residing place, it cannot be automatically presumed that such entertainment of an opposite-sex co-employee is only for immoral or illicit activities. Unless they have strong and concrete evidence to suggest that the illicit or immoral activities had taken place, merely based on presumption or surmise, one cannot conclude that, since they were under one roof for some time, it is only for illegal activities. This kind of presumption alone in the society cannot be a basis for concluding as arrived at by the Disciplinary Authority, that too for inflicting the punishment against the employee, working under him", Single Bench of Hon'ble Justice R Suresh Kumar observed.
8. The Madras High Court has observed that painting a criminal color under Prevention of Child from Sexual Offences Act, 2012 in a case where an accused and victim child has been in a romantic relationship results in the arrested accused's youthful life grinding halt.
9. The Kerala High Court has held that the Right To Hold property in terms of Article 300-A of the Constitution is not an absolute right, with the State being competent to take away the said right with the authority of law.
10. The Telangana High Court has observed that promotion cannot be granted to an employee in case of pending criminal proceedings.
11. The Karnataka High Court has recently laid down guidelines that are required to be implemented by states vis-a-vis noise pollution. A Division Bench comprising Chief Justice Abhay Shreeniwas Oka and Justice Sachin Shankar Magadum was hearing a petition filed by Advocate Jagadeesha B N, wherein the petitioner had prayed that the guidelines with respect to noise pollution be implemented by the State.
12. Observing that the Muslim community has no practice of mentioning their caste, the Bombay High Court recently granted relief to a 42-year-old woman, and declared her as belonging to the Momin caste under the Other Backward Classes (OBC) category.
13. In a complete about turn, actress Kangana Ranaut told the Bombay High Court that she would be approaching the BMC to regularise the illegal construction in her Khar-based residence. The HC has allowed her to withdraw her plea before it and approach the civic body. Notably, Kangana had claimed there are no illegalities in her flat but on Thursday she told the bench of Justice Prithviraj Chavan that she would rather file an application before the BMC and seek regularisation of the same.
15. The Bombay High Court observed that passing of POCSO Act has been significant and progressive step in securing children’s rights but at the same time the consensual sex between minors has been a grey area under the law as minor's consent is not valid in the eyes of law.
- Sanya Talwar is the Editor of Lawbeat