Important Legal News: May 2019

Association for Democratic Reforms v. Union of India.

• In petitions, challenging the Scheme, filed by the NGOs Common Cause and Association for Democratic Reforms(ADR) and CPI (M), the SC declined to stay the controversial Electoral Bonds Scheme observing that the question could not be determined on the basis of a short hearing.
• But the bench headed by the then Chief Justice Ranjan Gogoi directed all parties to furnish by May 30 information as to the donations received by way of Electoral Bonds (including the identity of the donors, amounts received, details of payments, bank accounts etc) to the Election Commission in sealed covers. 

Satish Chandra Verma v. Union of India.

• The SC held the right to travel abrod as an important basic human right as it nourishes independent and self-determining creative character of the individual, not only by extending his freedoms of action, but also by extending the scope of his experience. 

Important Legal News: April 2019.

• Unregulated Deposit Schemes Ordinance 2019.

• Objective: To ban Unregulated Deposit Schemes and to protect the interest of the depositors.
• It aims to prevent such unregulated deposit schemes (not registered with any government regulators like RBI or SEBI) or arrangements at their inception.
• It also makes soliciting, inviting or accepting deposits pursuant to an unregulated deposited scheme as a punishable offence.

• Wildlife First & Ors. Vs. Ministry of Environment & Forests & Ors. 


• SC ordered eviction of nearly one million persons from forest lands across states, who failed to establish their claims as forest-dwellers under the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act 2006(Forests Rights Act).

International Financial Services Centres Authority Bill, 2019.

• Objective: to set up a unified authority to regulate all financial services in IFSCs in the country.
• An IFSC caters to customers outside the jurisdiction of the domestic economy. Such centres deal with flows of finance, financial products and services across borders. 
• The authority will exercise powers and perform functions of RBI, SEBI, IRDAI And PFRDA.

Govt of NCT of Delhi v. Union of India.

• The SC held following: 
1. Control of services: bench differed. Hence decided to refer it to a larger bench.
2. Power of Anti-Corruption Bureau (ACB): ACB is under exclusive authority of LG & Delhi government has no power in this regard.
3. Appointment of Special Public Prosecutor: LG is bound by aid and advise of Council of Ministers.

COVID-19: Technology at Service of Justice System

Case Name: IN RE: GUIDELINES FOR COURT FUNCTIONING THROUGH VIDEO. CONFERENCING DURING COVID-19 PANDEMIC.

Even as the world is going through turbulent situation, the institution of justice delivery system can never afforded to be brought to a halt. It has been rightly remarked by Martin Luther King Jr., 

"Injustice anywhere is a threat to justice everywhere".

Hence, the current situation calls for a robust justice delivery system across the world. In this regard, the Supreme Court of India has left no stone unturned to ensure speedy justice delivery to every segment of the society.

Guidelines:

Given that social distancing is the need of the hour to prevent communication of COVID-19, the apex court exercised its power under Article 142 (inherent powers) to balance the public health and justice delivery.

It issued a slew of guidelines to streamline functioning of courts via video conferencing during national lockdown.

These guidelines are:

1. The measures that have been and that shall be taken by this Court and by the High Courts, to reduce the need for the physical presence of all stakeholders within court premises and to secure the functioning of courts in consonance with social distancing guidelines and best public health practices shall be deemed to be lawful.
2. The Supreme Court of India and High Courts have been authorized to adopt measures required to ensure the robust functioning of the judicial system through the use of video conferencing technologies;
3. In light of the peculiarities of the judicial system in every state, every High Court is authorised to determine the modalities which are suitable to the temporary transition to the use of video conferencing technologies;
4. The concerned courts shall maintain a helpline to ensure that any complaint in regard to the quality or audibility of feed shall be communicated during the proceeding or immediately after its conclusion. No grievance can be raised afterwards. 
5. The District Courts in each State shall adopt the mode of Video Conferencing prescribed by the concerned High Court.
6. The Court shall duly notify and make available the facilities for video conferencing for such litigants who do not have the means or access to video conferencing facilities. 
7. Until appropriate rules are framed by the High Courts, video conferencing shall be mainly employed for hearing arguments whether at the trial stage or at the appellate stage. 
• But evidence shall not be recorded without the mutual consent of both the parties by video conferencing. 
• If it is necessary to record evidence in a Court room the presiding officer shall ensure that appropriate distance is maintained between any two individuals in the Court.

Important Cases 2019: CPIO v. Subhash Chandra Aggrawal.

Issues:

• Whether the Supreme Court and the CJI are two separate public authorities.

• Held: Supreme Court of India is public authority under Section 2(h) of the RTI Act and the office of CJI and other judges are part and parcel of the SC.
• The Chief Justice and the Supreme Court are not two distinct and separate ‘public authorities’. Hence office of CJI is also a public authority.

• Meaning of term Public Interest.

• Held: Disclosure of information is determined by weighing the public interest in accepting exemptions  under Section 8(1)(j) in a particular case to deny information against the public interest in disclosure in such case.
• Possible harm or injury to third party must also be factored in when determining disclosure of confidential information relating to third parties under section 11.

• Whether asset declaration by Supreme Court Judges are “information”under the Act.

• Held: Information pertaining to declaration of assets by judges given to the CJI are information under section 2(f) of the Act.

Does the CJI hold such information in a “fiduciary” capacity?

• Held: The Chief Justice of India merely holds the information in accordance with the official functions and not in any fiduciary capacity.
• Hence its disclosure will not result in breach of fiduciary duty under section 8(1)(e).
• Such disclosure would not, in any way, impinge upon the personal information and right to privacy of the judges.

Issue of Judicial Independence.

• Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence. 
• Judicial independence does not mean the insulation of judges from the rule of law.
• Where judicial independence focuses on freedom, judicial accountability is concerned with the manner in which that freedom is exercised by the judges.



Right to information can never be allowed to be used as a tool of surveillance to scuttle effective functioning of judiciary. 
Read the Full Judgment

Important Cases 2019: B K Pavitra v. Union of India-II.

B K Pavitra v. Union of India-II. On the provision of Article 16(4-A) as the impugned legislation of Karnataka government provided for consequential seniority for SC/STs after promotion.

• Act was held to be in conformity with the judgments of M. Nagraj and Jarnail Singh v. Lakshmi Narain Gupta.
• On question of administrative efficiency as mentioned under Article 335 of the Constitution, following views were held by Chandrachud J. that:
• No inference can be drawn that reservation in favour of SC/STs has negatively impacted efficiency.
• Meritorious candidate is not one who is merely talented but one whose appointment fulfills constitutional goal of uplifting SCs and STs.
•  Administrative efficiency in the affairs of the Union and state must be defined in inclusive sense, where diverse segments of society find representation in public administration.

Censorship Issue: S. Rangarajan Etc vs P. Jagjivan Ram, 1989 SCR (2) 204, 1989 SCC (2) 574

If we talk about censorship in Indian cinema's context, the first and most recent name appears, Bhansali-directed Padmavat, which was the focus of conflict in 2017 and at the outset of 2018. But very few of us are aware of another movie that drew the ire of politics in 1989. 

Ore Oru Gramathile, a Tamil movie, produced by Mr. S. Rangarajan, criticized the caste-based reservation policy in Tamil Nadu’s educational institutions. The producer had to fight against members of the Dr. Ambedkar People’s Movement and the Republican Party of India for securing release of the movie. The Tamil Nadu government seemed helpless and stopped the film’s release, on the apprehension of a “very serious” law and order problems across the state. 

Judgment of the Court.

The matter reached the court and the impasse was removed the apex court in the landmark judgment of S. Rangarajan Etc vs P. Jagjivan Ram, 1989 SCR (2) 204, 1989 SCC (2) 574, wherein the court held that inability of the state  to handle the hostile audience problem was not a sound defence and it is its obligatory duty on the state to prevent it and protect the freedom of expression.

Can failed affair lead to rape charges: SC

Looking into the trail of cases, wherein the women have used rape as "a weapon for vengeance and vendetta" to harass and even force a man to marry, the Supreme Court has asked a question raising a doubt on a failed consensual relationship between adults lead to filing of rape charges against the man.

Last year, the Delhi HC noticed the issue and said rape cases were being used as "a weapon for vengeance and vendetta" to harass and even force a man to marry.

The case before the apex court concerned a failed relationship between a top IDFC banker and a former cabin crew member with an international airline. The man said the highly educated and net savvy woman knew all along that he was married with two children and it was impossible to hide his marital status. He said he could not have induced sexual relationship on the promise of marriage.

The woman in her complaint accused him of sexually abusing her on the promise of marriage and threatening to circulate an indecent video of her prepared by him.

A vacation bench of Justice Vikramjit Sen and Justice SK Singh asked: "Why did you take the indecent photograph? You say it was a selfie. Is it possible to take selfie of a whole body?

Senior advocate Sidharth Luthra, appearing for the accused, said: "People get carried away in such relationships. They had a peculiar relationship. The bench asked, "Peculiar? It can be called a cupid relationship not a stupid relationship."

When Luthra said that "breach of promise to marry" was not an ingredient for rape charges, the bench asked: "Where is it held (by a court) that if you had a relationship for two years (with a woman), it becomes rape when it failed?"

It was quite appreciable on the side of the Supreme Court, which has looked into the rising misuse of the rape as a weapon for girls to get the relationship converted into marriage. It can be noticed that though the women protection laws have the noble ideas of their protection, they are being misused as a weapon to get their means served. This hampers the basic goal served by these laws and by the law-makers.

Justice R. M. Lodha: the 41st CJI of India.

Justice Rajendra Mal Lodha was on Sunday sworn in as the 41st Chief Justice of India. He was administered the oath of office by President Pranab Mukharjee at the Rashtrapati Bhavan.

At 64, Justice Lodha is the senior-most judge of the Supreme Court after Justice Sathasivam. He will have a brief tenure of five months as the Chief Justice as he is scheduled to retire on September 27.

Appointment of Judges.

In the high courts, the process is initiated by the respective chief justices. In the Supreme Court, the Chief Justice of India (CJI) takes the initiative. The final decision is taken by five Supreme Court judges, including the CJI.

Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.

Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.
How and when did the other system evolve? The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”. The S P Gupta case (December 30, 1981) is called the “First Judges Case”. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years.
How did the judiciary come to get primacy? On October 6, 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India case — the “Second Judges Case”. This was what ushered in the collegium system. The majority verdict written by Justice J S Verma said “justiciability” and “primacy” required that the CJI be given the “primal” role in such appointments. It overturned the S P Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.”
How final was this? Justice Verma’s majority judgment saw dissent within the bench itself on the individual role of the CJI. In a total of five judgments delivered in the Second Judges case, Justice Verma spoke for only himself and four other judges. Justice Pandian and Justice Kuldip Singh went on to write individual judgments supporting the majority view. But Justice Ahmadi had dissented and Justice Punchhi took the view that the CJI need not restrict himself to just two judges (as mentioned in the ruling) and can consult any number of judges if he wants to, or none at all.For the next five years, there was confusion on the roles of the CJI and the two judges in judicial appointments and transfers. In many cases, CJIs took unilateral decisions without consulting two colleagues. Besides, the President became only an approver.
What was done to deal with the confusion? In 1998, President K R Narayanan issued a presidential reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The question was if the term “consultation” requires consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. In reply, the Supreme Court laid down nine guidelines for the functioning of the coram for appointments/transfers; this came to be the present form of the collegiums.Besides, a judgment dated October 28, 1998, written by Justice S P Bharucha at the head of the nine-judge bench, used the opportunity to strongly reinforce the concept of “primacy” of the highest judiciary over the executive. This was the “Third Judges Case”.
What are the arguments against the collegium system? Experts point to systemic errors such as:* The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees;* A closed-door affair without a formal and transparent system;* The limitation of the collegium’s field of choice to the senior-most judges from the High Court for appointments to the Supreme Court, overlooking several talented junior judges and advocates.
What moves were taken to correct these? The Law Commission in its 214th Report on ‘Proposal for Reconsideration of Judges cases I, II and III’ recommended two solutions:* To seek a reconsideration of the three judgments before the Supreme Court.* A law to restore the primacy of the Chief Justice of India and the power of the executive to make appointments.
What is the suggested alternative to the collegium? A National Judicial Commission remains a proposal. The Constitution (98th Amendment) Bill was introduced in the Lok Sabha by the NDA government in 2003. It provided for the constitution of an NJC to be chaired by the CJI and with two of the senior-most judges of the Supreme Court as its members. The Union Law Minister would be a member along with an eminent citizen to be nominated by the President in consultation with the Prime Minister. The Commission would decide the appointment and transfer of judges and probe cases of misconduct by judges, including those from the highest judiciary.

Contesting election from two places might become no more a cakewalk

The Supreme Court has sought the response of the Centre and the Election Commission to a public interest writ petition, seeking to quash provisions of the Representation of the People Act which permit a candidate to contest elections from two constituencies.

A Bench headed by Chief Justice P. Sathasivam issued the notice on the petition filed by the Voters Party, a registered party, challenging the constitutional validity of Section 33 of the RP Act, which allows candidates to contest two seats, and Section 70, which permits a candidate to give up one if he wins both seats.

The petitioner wanted the court to direct the Centre to repeal the provisions that allow a person to file nomination papers from two constituencies, and in case he manages to win from both, “he/she is bound by the existing law to vacate one of the seats, thereby forcing an unwarranted by-election and its related expenses.”

The petitioner said it acts against the fundamental principles of representative democracy, besides distorting the faith of the people who have elected him. In such a situation, the elected candidate should bear the cost of the entire by-election in the vacated constituency.

“The provision of law is very often misused by the contestants as a security/insurance at the cost of the general public/taxpayer, which is forced to bear the burden of a candidate,” it said.