Legally Yours

19/08/2020

The Supreme Court today held that the Central Bureau of Investigation's (CBI) probe into the FIR lodged against actress Rhea Chakraborty in connection with the death of Sushant Singh Rajput is lawful.
The Court has further directed the Mumbai Police to hand over all the evidence in the case to the CBI.
The judgment was passed by a Single Judge Bench of Justice Hrishikesh Roy.
The Court also directed the CBI to look into any other cases registered in the future in relation to the death of Rajput. The Maharashtra government has been ordered to assist the CBI in the investigation.
Putting to bed the jurisdictional tussle between the Bihar Police and the Mumbai Police, the Court held that the FIR lodged by the former was lawful.
After the order was pronounced, the Maharashtra government sought to appeal against it. However, the Court declined to entertain the same.
Chakraborty had found herself in the middle of a controversy after an FIR was registered against her by the father of her deceased partner, Sushant Singh Rajput. This FIR was lodged in Patna at a time when the Mumbai Police was conducting a probe into Rajput's death.
On July 30, Chakraborty moved the Supreme Court seeking transfer of the case lodged against her.
The transfer petition states that the FIR in Patna alleging abetment to su***de charges against Chakraborty is nothing but an act of "connivance" between the State of Bihar and Rajput's father.
During the hearings before the Supreme Court, the Maharashtra and Bihar governments assailed each other's jurisdiction to investigate the matter, while both alleging that the issue was being politicised.
Meanwhile, the Bihar Police handed over the investigation in the matter to the Central Bureau of Investigation (CBI).
The Mumbai Police had informed the Supreme Court in its affidavit that the initial statements made by Sushant Singh Rajput's family in connection with his June 14 death do not indicate any suspicion on the cause of death, apart from su***de.
It had submitted its investigation status report in a sealed envelope, averring that pending the adjudication of the transfer plea, the CBI ought not have gone ahead and registered the FIR or constituted a committee for conducting the investigation.
On the other hand, Bihar Police has stated before the Supreme Court that Rhea Chakraborty's plea seeking transfer of the FIR from Patna to Mumbai is not maintainable.
In its affidavit filed in the Apex Court, the Bihar Police averred that Section 406 of the Code of Criminal Procedure cannot be invoked for transferring investigation from one state to another.
Now that the CBI has registered its FIR in the case after taking over the probe from the Bihar Police, the Centre also moved the Supreme Court to be made party to this litigation.
In her additional affidavit filed before the Court amid the tug of war of jurisdiction between the states, Chakraborty questioned the manner in which the CBI has now assumed jurisdiction over the case. She also registered objection to media reports "sensationalizing the case" in her additional affidavit.

12/08/2020

The Delhi University has filed a letters patent appeal before the Delhi High Court against the order passed by a Single Judge Bench allowing online open book examination for final year students of Delhi University.
Online open book examination for final year students of Delhi University began yesterday, August 10.
The appeal, which will be listed before a Division Bench of the High Court, is directed against certain directions given by the Single Judge with respect to the constitution of a Committee under the aegis of a retired High Court judge, continued monitoring of OBE etc.
The order was passed by a Single Judge Bench of Justice Prathiba M Singh in a petition preferred by students against online OBE.
Late evening, counsel for the students, Advocate Akash Sinha took to Twitter to apprise the students of the development.
While steering away from challenging the UGC guidelines which made it compulsory for educational institutions to conduct a "time-bound" examination for final year students, counsel for the students had vehemently argued that OBE was in violation of their rights guaranteed under Articles 14, 16 and 21 of the Constitution of India.
However, keeping in mind the enormous preparations that had undertaken by students for giving the online OBE, the Court deemed it appropriate to only concern itself with the manner in which online OBE could be streamlined.
It thus issued a slew of direction in the order and directed Delhi University to comply with them.
These directions included the constitution of a grievance committee under the aegis of Justice (retd) Pratibha Rani, simultaneous evaluation of answer sheets, increasing the time limit to write the examination for regular and PWD students, etc.
The appeal is likely to be listed before a Division Bench of Delhi High Court this week
The Delhi University has filed a letters patent appeal before the Delhi High Court against the order passed by a Single Judge Bench allowing online open book examination for final year students of Delhi University.
Online open book examination for final year students of Delhi University began yesterday, August 10.
The appeal, which will be listed before a Division Bench of the High Court, is directed against certain directions given by the Single Judge with respect to the constitution of a Committee under the aegis of a retired High Court judge, continued monitoring of OBE etc.
The order was passed by a Single Judge Bench of Justice Prathiba M Singh in a petition preferred by students against online OBE.
Late evening, counsel for the students, Advocate Akash Sinha took to Twitter to apprise the students of the development.
While steering away from challenging the UGC guidelines which made it compulsory for educational institutions to conduct a "time-bound" examination for final year students, counsel for the students had vehemently argued that OBE was in violation of their rights guaranteed under Articles 14, 16 and 21 of the Constitution of India.
However, keeping in mind the enormous preparations that had undertaken by students for giving the online OBE, the Court deemed it appropriate to only concern itself with the manner in which online OBE could be streamlined.
It thus issued a slew of direction in the order and directed Delhi University to comply with them.
These directions included the constitution of a grievance committee under the aegis of Justice (Retd.) Pratibha Rani, simultaneous evaluation of answer sheets, increasing the time limit to write the examination for regular and PWD students, etc.
The appeal is likely to be listed before a Division Bench of Delhi High Court this week

05/08/2020

The Madhya Pradesh High Court recently directed a man accused of having outraged the modesty of a woman to present himself before the complainant so that she may tie a "rakhi" on his wrist as a condition for his release on bail (Vikram v. State of Madhya Pradesh).
As per the order passed by Justice Rohit Arya, the bail applicant and his wife are to visit the complainant's house on Monday morning (i.e. on Raksha Bandhan) with a Rakhi thread and a box of sweets.
Apart from requesting the complainant to tie the Rakhi, which customarily denotes a brother-sister relationship, the applicant is to make a promise that he would protect the complainant to the best of his ability for all times to come.
Added to this, the bail applicant is to give Rs 11,000 to the complainant, as "usually offered by brothers to sisters" during Raksha Bandhan and to seek her blessings. Moreover, he is to give an additional Rs 5,000 to the complainant's son for the "purchase of clothes and sweets."
The Court added that the applicant should obtain photographs and receipts of the payment made to the complainant and her son, and that the same should be filed in Court.
The applicant stands accused of having entered the complainant's house and outraged her modesty.
However, these allegations have been denied by the applicant, who said that the false complaint had been lodged after he demanded the repayment of a loan from the complainant's husband.
The Court declined to comment on the merits of the case, instead focusing on the fact that the bail applicant had been in jail for over two months and that he was no longer required for custodial interrogation.
Therefore, the Court allowed his release on bail on the furnishing of a Rs 50,000 bond and a surety of like amount.

04/08/2020

29/07/2020

The Delhi High Court today issued notice in a petition challenging the suspension of Section 10 of Insolvency and Bankruptcy Code 2016. (Rajiv Suri vs UOI)

On June 5, Insolvency and Bankruptcy Code (Amendment) Ordinance, 2020 had suspended Section 10 IBC on account of COVID-19 for a period of six months starting March 25, 2020.

Centre notifies Ordinance to suspend initiation of corporate insolvency resolution process on account of COVID-19. Notice to the Central Government and Insolvency & Bankruptcy Board of India was issued by a Division Bench of Chief Justice DN Patel and Justice Prateek Jalan.
The petition, which is the nature of a public interest litigation, has been filed by one Rajiv Suri who was represented by Advocates Shiv Kumar Suri, Shikhil Suri, Shilpa Saini, Vinishma Kaul, Nikita Thapar.
Under Section 10 IBC, a corporate applicant could initiate corporate insolvency resolution process in respect of a default committed by itself.
It is the Petitioner's case that suspending the initiation of corporate insolvency resolution process under Section 10 by a corporate applicant is arbitrary, unjust, and malafide.
In these extraordinarily difficult times for businesses, suspension of Section 10 is irrational, displays haste, is illogical, and unjustified.
The Petitioner states that the suspension of Section 10 IBC would deprive a corporate applicant of an opportunity to revive, reorganize, and resolve itself and its debts in a time-bound manner.
Consequently, companies would be pushed into liquidation and cilvil litigation, defeating the objectives of IBC, it is apprehended.
That suspension of this Section for a period of 6 months and up to 1 year would result in further deterioration of the affairs of the corporate debtor and result in making the restructuring/revival of the corporate debtor unviable. This one side sits all approach is contrary to the main objectives of the Code and instead of promoting the objective of maximization of value, will result in defeating the objectives of the code as no restructuring/ revival/ resolution will be now possible.
the Petition argues.
It is thus contended that the suspension of Section 10 IBC violates the rights of a corporate debtor under Articles 14 and 19(1) (g) of the Constitution.

The Petitioner has also highlighted that the Ordinance takes away the vested right of the corporate applicant with a retrospective effect which is invalid and is liable to be quashed.
ASG Chetan Sharma and Standing Counsel Amit Mahajan raised issues of maintainability of the petition. The Court, however, directed them to submit the same by way of the Centre's response to the petition.

The matter would be heard next on August 31.

28/07/2020

Supreme Court makes it mandatory for AORs and parties-in-person to file soft copies of pleas with Supreme Court Registry
This development comes with the judges' increased usage of computers and tablets for accessing case files and petitions during hearings.
Chief Justice of India SA Bobde has directed Advocates-on-Record and parties-in-person to file soft copies of petitions and accompanying documents with the Supreme Court Registry, in addition to the hard copies required to be filed till now.
The circular released today states that at the time of re-filing after curing all defects, AoRs and parties-in-person, "in addition to the Hard Copy to be filed at the filing counter, will be required to file soft copy of the petition and the accompanying documents."
This development comes with the judges' increased usage of computers and tablets for accessing case files and petitions during hearings. The judges have been conducting virtual hearings since March 23.
Another circular from the Supreme Court dated July 27 stated that the printing charges was reduced from Rs.1.50 per page (Rs.6 for four copies) to 0.75 paise per page (Rs.3 for four copies) in cases filed through e-filing mode.
Supreme Court makes it mandatory for AORs and parties-in-person to file soft copies of pleas
Supreme Court Registry agrees to reduce printing charges in e-filing
The circular states that the soft copy is required to be uploaded by AoRs and parties-in-person on the email id specifically created for the purpose - [email protected]. The release further reads,
"An undertaking of compliance of this requirement be enclosed with refiled hard copy."
Emails sent by AoRs and parties-in-person shall carry the subject “Soft copy of petition and the accompanying documents in Diary No.....”, and the text of email shall contain verification in specific terms as under:-
“The soft copy of petition- and the accompanying documents in ……….pages are true and complete copy of the petition and the document filed in physical form.”

27/07/2020

A Full Bench of the Uttarakhand High Court has re-affirmed that government employees appointed on contract cannot be denied maternity or child care leave (CCL) only on account of their being contractual workers, as opposed to regular employees (Smt. Tanuja Tolia v. State of Uttarakhand and ors).
However, since the State-specified period of 730 days child care leave may exceed the term of the worker's contract, the Court added that contractual workers employed for a shorter term of 1 year can only avail 31 days child care leave. This is on par with the number of "earned" or "paid" leaves available to government employees as per the directives issued by the Uttarakhand Government.
"... even a person employed on contractual basis is entitled for child care leave, but this is with a rider. A contractual employee whose employment is only for one year, cannot be granted child care leave for 730 days. Such an employee can be granted paid child care leave for 31 days, on the same terms and principles as “earned leave”, as is given to other employees in G.O. dated 30.05.2011."
The Bench of Chief Justice Ramesh Ranganathan and Justices Sudhanshu Dhulia and Alok Kumar Verma on Friday held as follows:
Child care leave should be for the same number of days as an earned leave which a regular employee gets in a year.
This was in view of the Government Order issued by the State Government in May 2011 where it was mentioned that the CCL shall be treated on the same footing as earned leave, and will be sanctioned in the same manner.
As per this GO, State Government employees are entitled for 31 days of earned leave in a year.
Applying the same principle, the Court held that an employee whose entire employment is for one year, if he/she fulfils the other parameters given in the May 2011 GO (i.e. she has two children, who are less than 18 years of age) will also be entitled for the child care leave for 31 days.
The May 2011 GO stipulates that CCL shall not be given as a matter of right, and no one will go on CCL without its proper sanction. The same principle shall be applicable for a contractual employee as well.
Normally child care leave should not be denied. It could only be denied by the employer on very pressing valid and plausible reasons, which must be specifically stated, when such a request for child care leave is being denied.
In passing the ruling, the Bench also emphasised that the underlying rights being protected in the grant of such leave is not that of the parents' but that of the child.
"CCL is primarily for the benefit of a child. A child whose mother happens to be employed on a contractual basis with the Government, has the same needs as any other child. A denial of CCL to a government contractual employee would in effect mean a denial of the rights of a child. Rights which a child would have under Articles 14 and 21 of the Constitution of India", reads the judgment.
The Court also added that, ideally, child care leave should be available to both parents of the child.
"Ideally speaking a child care leave can be given to both the parents, father as well as mother, as the actual 'beneficiary' here is neither the father or the mother but the child."
On a related note, the Court was infromed that as far as Central Government employees are concerned, CCL may now also be available to single fathers as well.
The case before the Court concerned a plea by an Ayurvedic doctor engaged by the State Medical and Health Services on a contract basis. After having availed the six-month maternity leave sanctioned to her, the woman employee did not join back to service but instead applied for child care leave.
However, her request was denied. The Government's order of May 2011 stated that child care leave could only be given to a "regular Government employee" and not contractual employees.
This prompted the woman to move the High Court, while also relying on the Court's 2015 Division Bench judgment in Dr. Shanti Mehra Vs. State of Uttarakhand, wherein it was held that even contractual employees are entitled to the child care leave of 730 days specified in the 2011 GO.
When this plea came up before a Division Bench of the High Court, it was pointed out that the statutory period of CCL (730 days) would exceed the term of the woman's work contract itself i.e. 1 year/ 365 days. Therefore, the Bench doubted the correctness of the 2015 Shanti Mehra verdict and made a reference to a larger Bench.
To resolve the reference, the Full Bench took note that Courts, through various judgments, have already ruled against making distinctions between contractual workers and regular workers when it comes to the grant of maternity leave. As such, the Court opined that, "the same principle ought to be adopted while considering child care leave as well."
Therefore, the Full Bench ruled in favour of the woman employee and directed that the matter be placed before the Division Bench for further appropriate orders.
"We have absolutely no doubt in our mind that even a contractual employee engaged for a period of 12 months is entitled for a child care leave and this entitlement has to be read in the Government order dated 30.05.2011 itself."
Advocates BD Pandey with Advocates Harsh*t Sanwal and Raksh*t Joshi appeared for the petitioner. Chief Standing Counsel Paresh Tripathi appeared with Advocate Suyash Pant for the State.

25/07/2020

Supreme Court explains when cases can be transferred from High Courts to itself under Article 139A
In a judgment passed today, the Supreme Court explained when it can transfer a case can from the High Courts to itself under Article 139A of the Constitution of India.
The Single Judge Bench of Justice Aniruddha Bose, while deciding a transfer petition, explained the position in law on this aspect.
The case pertained to a writ petition pending before the Punjab & Haryana High Court touching upon the issue of 10 per cent vertical reservation for Economically Weaker Sections (EWS) in the arena of public employment.
The petitioner in the case had sought for this plea to be transferred from the High Court to the Supreme Court on the ground that similar petitions addressing near identical issues are pending before the Apex Court for adjudication.
The transfer plea was opposed by the State of Haryana, which contended that pending pleas on similar issues do not warrant transfer of the matter to the Supreme Court.
The Court ultimately ruled in favour of transferring the case to itself, stating that the conditions stipulated in Article 139A for the transfer of cases from the High Court to the Supreme Court stand fulfilled,
It was noted that such transfer is permissible if:
• The question of law pending before the Supreme Court is already substantially similar to the question of law raised in the matter pending before the High Court; AND
• The Court is satisfied that the question of law pending before itself is one of substantial importance to the general public.
In its judgment, the Court added,
"Such satisfaction can be on this Court’s own motion, on an application made by the Attorney General or on the basis of an application made by a party to any such case."
Supreme Court
The question of EWS reservation is similar to the issue involved in the pending matter of Ms. Dulari Mahesh Basagre and Anr, it was pointed out in the judgment. Given that the question is of importance to the general public, the Court ruled in favour of transferring the case to itself.
"Article 139A vests this Court with jurisdiction to direct transfer or withdrawal of a case pending in a High Court to this Court on two grounds, to which I have referred earlier. On satisfaction of these conditions, this Court can make direction in exercise of its discretion for withdrawing the case for disposal of the same by itself. The manner in which such discretion would be exercised would vary from case to case."
The case thus stands transferred to the Supreme Court.
The Economic Reservation Bill was passed by both Houses of Parliament in January this year. Three days after it was approved by Parliament, the President accorded his assent for the legislation. However, even as Presidential assent was pending, the NGO Youth for Equality moved the Supreme Court challenging the legislation.

24/07/2020

[Breaking] Special committee decides against restoring 4G Internet in J&K, next review after two months: MHA tells SC
The MHA's affidavit was filed in response to the contempt plea by the Foundation for Media Professionals (FMP) over the non-constitution of a Special Committee to review the ban on 4G speed internet in Jammu and Kashmir.
In response to a contempt petition for not constituting a special committee as directed by a Supreme Court to review internet restrictions imposed in Jammu and Kashmir, the Ministry of Home Affairs (MHA) has informed the top Court that the committee has decided against the restoration of 4G connectivity in the valley for the present.
After the meeting on June 10, the special committee decided that "based on consideration and wide-ranging assessment of the prevalent situation in this sensitive region ... no further relaxation on internet services including 4G services could be carried out at the present."
The committee will meet again after two months to review the situation, it is further informed.
The four-page affidavit filed on July 21 states that the special committee was constituted by the Supreme Court itself on May 11, 2020, when the Justice NV Ramana led bench had ordered that a special committee headed by Home Secretary, Government of India would be formed to review the internet restrictions in the valley.
"Contentions regarding alleged failure to constitute a special committee through a notification or order by the Government of India is totally misconieved and misconstrued. The special committee stood constituted by the May 11 order of the Supreme Court and no further notification or order from the government was needed."
The MHA's affidavit was filed in response to the contempt petition by the Foundation for Media Professionals (FMP) over the non-constitution of a special committee to review the ban on 4G speed internet in Jammu and Kashmir.
On July 16, the Justice Ramana led bench had sought the response of the Centre on the contempt plea even as Attorney General KK Venugopal insisted that there was no contempt.

23/07/2020

Animals have the fundamental right to live with dignity: Delhi HC issues notice in plea to prohibit animal exhibition, training in circus
The Court also directed the Animal Welfare Board to carry out a nationwide survey and submit a report on the condition of circuses amid the COVID-19 lockdown.
The Delhi High Court on Tuesday issued notice in a petition seeking a direction to prohibit the exhibition or training of animals in circuses (Federation of Indian Animal Rights Protection Organizations vs Ministry of Fisheries, Animal Husbandry and Dairying & Ors).
Notice to the Central Government and Animal Welfare Board of India was issued by a Division Bench of Justices Vipin Sanghi and Rajnish Bhatnagar in the petition by the Federation of Indian Animal Rights Protection Organizations (Petitioner).
Pursuant to a plea to save animals from suffering during the pandemic, the Court also directed the Animal Welfare Board to carry out a nationwide survey and file a report ascertaining the condition of circuses amid the COVID-19 lockdown.
The Petitioner is a collective of over 100 organizations that work towards the protection of animal rights.
The Petitioner seeks a direction to declare Sections 21 to 27 of the Prevention of Cruelty to Animals Act, 1960, to the extent that they permit the exhibition or training of animals in circuses, ultra vires Sections 3 and 11 (1) of the Act and Articles 21, 48A and 51A(g) of the Constitution of India.
Challenge is also made against the Performing Animal Rules,1973 and Performing Animals (Registration) Rules, 2001, to the extent that they allow the registration of animals as "performing animals" in relation to a circus.
The Petitioner has asserted that circuses “train” animals to act contrary to their natural instincts by beating them with sticks, whipping, poking through sharp metal rods, starving etc.
Although performance by monkeys, bears, tigers, panthers, lions etc. is banned, several animals such as hippos, horses, camels, dogs etc. are still subjected to such mental and physical cruelty, it is stated.
The Petitioner has contended that animals have the fundamental right to live with dignity and be treated with compassion. It is asserted that barring their performance in circuses would not fall foul of the circus owners' right under Article 19(1) (g) of the Constitution.
The Court’s attention is also brought to a "draft rule" introduced by the Central Government in 2018 to prohibit the exhibition of any animals in circuses etc. However, no further development has taken place on this front till now, it is added.
The Petitioner has thus sought the Court's intervention to put an end to the practice of animal exhibition in circuses and has prayed for the formulation of appropriate schemes for their rehabilitation. The matter would be heard next on August 14.
Senior Advocate Dayan Krishnan appeared for the Petitioner. The petition has been filed through Advocates Ambuj Agarwal and Ashmita Singh.

21/07/2020

First virtual Lok Adalat conducted in Karnataka by High Court Legal Services Committee disposes of 31 cases

The High Court Legal Services Committee, Bengaluru this week conducted the first virtual Lok Adalat through video conferencing amid the ongoing COVID-19 pandemic.
The Lok Adalat Bench comprised the Karnataka High Court's Justice Alok Aradhe, who is also Chairman of the High Court Legal Services Committee, and Vijay Kumar Patil, Conciliator.
The Bench was able to settle 31 cases pertaining to two insurance companies. It awarded compensation of Rs 62,95,000 to the victims of motor vehicle accidents.
The press release issued further states that the first virtual Lok Adalat in Karnataka was conducted with the able support and guidance of Chief Justice Abhay Shreeniwas Oka and Justice Aravind Kumar.
On a concluding note, the release also urges advocates and the litigant public to make use of the virtual Lok Adalat facility and strive to settle large number of cases during the COVID-19 pandemic period.
Last week, in an effort to dispose of pending cases by following precautionary measures amid the ongoing COVID-19 pandemic, an e-Lok Adalat was organized in Chhattisgarh where hearings were conducted via video conferencing.

17/07/2020

Provisions under Consumer Protection Act, 2019 to come into force on July 20, 2020: Centre notifies
The Central Government has notified that certain provisions under the Consumer Protection Act, 2019 shall come into force on July 20, 2020.
Consumer Protection Act 2019- Sections to come into force from July 20, 2020
These provisions pertain to Consumer Protection Councils, Consumer Disputes Redressal Forum, Mediation, and Product Liability, punishment for manufacturing, selling, distributing etc spurious good or products which contain adulterant.
Certain miscellaneous provisions with respect to the powers of the Central and State Government to make rules and regulations have also been enforced.