ISSUE – 1 (AUGUST 31 – SEPTEMBER 6)

Updated: Sep 14, 2020


VOX IURA MAGAZINE- ISSUE 1
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1.SUPREME COURT IMPOSED A FINE OF ONE RUPEE ON PRASHANTH BHUSHAN IN THE CONTEMPT PROCEEDINGS RELATING TO HIS TWEETS

Supreme Court Bench headed by Justice Arun Mishra sentences Prashant Bhushan to a fine of Rupees 1 within September 15, and in case of failure to deposit, he will have to undergo sentence for 3 months and will be debarred from practise in SC for three years(in case of default).

During the hearing, Justice Arun Mishra expressed his disappointment at Bhushan issuing a supplementary statement to justify his tweets after asserting his disinclination to tender apology.

Justice Arun Misra further observed that the court cannot be guided by the trial by media and public opinion. He further observed that the Court cannot abdicate its duty and has to be uninfluenced by statements published in various articles published in media and opinions expressed therein and it has to decide the case uninfluenced by such opinions.


2.GOVERNMENT BANS PUBG, WECHAT WORK, 116 OTHER MOBILE APPS

Introduction

The Government on 02/09/2020, banned 118 applications, a majority being Chinese, including PUBG, Camcard, Wechat Work etc. stating that these were “prejudicial to sovereignty and integrity of India, Defence of India, security of State and Public Order”. The Ministry of Information Technology informed that it had received many complaints about the misuse of some mobile apps of stealing and surreptitiously transmitting user’s data in an unauthorized manner to servers that are located outside India. Thereby, ministry invoking its power under Section 69A of the Information Technology Act and Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009 issued an order banning 118 mobile Apps.

Power to block Public access to any information

Section 69A of the Information Technology Act empowers the Central Government or any officer specially authorised on this behalf to issue directions for blocking for public access of any information through any computer resource. Section 69A of the Act provides for the discretionary power as to blocking of information. However, it shall be subjected only to sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above. And also the provision insists that the power has to be exercised if it is necessary or expedient to do so. It also uses the word ‘in the interest of’, which indicates that there must be a direct or proximate nexus between the reason and the ground provided under Section 69A of the act. It also necessitates to state the reasons for the order and to follow the procedures as prescribed.

In Shreya Singhal v. Union of India(2013), the Supreme Court stated that section 69A is a narrowly drawn provision, which falls squarely within the categories of permitted reasonable restriction under Article 19(2) of the Constitution. The checks and balances are provided in the section and the fact that reasons for blocking to be recorded in writing makes the provision fair and free from arbitrariness and held that section 69A is Constitutionally valid.

Procedure to block Information

The procedure for blocking is provided under the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009. It however classifies the procedure into two cases namely normal and emergency cases. In case of normal procedure there shall be request made, which will submitted by the Nodal officer to the designated officer (Rule 6) and the Committee on the examination of the request (Rule 7). The designated officer will issue notice to the organization to appear and submit the clarification within 48 hours, later the approval is sought from the Secretary of Department of Information Technology. On Approval of the Secretary, the designated secretary shall direct the agency of the government or intermediary to block the offending information for public access (Rule 8). In case of Emergency, the designated officer if he thinks that it is necessary and expedient, then he will submit the request with the specification to the Secretary of Department of Information technology. The Secretary being satisfied that it is necessary and expedient shall pass an interim order for blocking the information. Later the designated officer within 48 Hours shall bring the request to the Committee for its recommendation. On receipt of the final order, the Secretary shall pass a final order for the blocking of information for public access (Rule 9). There is one another way in which the information shall be blocked by the order of the court (Rule 10).

3. SUB-CLASSIFICATION OF SC AND ST HAVE BEEN REFERRED TO LARGER BENCH

News

· The SC has referred this question to a larger bench of 7 Judges to reconsider the decision given in Chinnaiah case to protect the weakest among the weaker section of the society.

Issue

· A recent case has approached the Supreme Court of India, which was an appeal against the government to sub-classify SC/STs for grant of quotas.

· The High Court judgment had struck down a circular of the Punjab government, which provided that out of the seats reserved for SCs, 50 percent would be offered to Balmikis and Mazhabi Sikhs.

Background

A five-judge Constitution Bench of the Supreme Court has recently ruled that states can sub-classify the list of Scheduled Castes (SCs), Scheduled Tribes (STs), and Socially and Educationally Backward Classes (SEBCs), to provide preferential treatment to the especially deprived among them “to achieve the real purpose of reservation”.

The Supreme Court of India has thus reopened the legal debate on sub-categorisation of Scheduled Castes and Scheduled Tribes for reservations, or what is commonly referred to as “quota within quota” for SCs and STs. However, the court has referred the issue to a larger Bench to decide.

What is SC & ST

· According to Articles 341 and 342 of the Constitution of India, President will notify the Scheduled Caste and Scheduled Tribes in respect of particular state. And further the Parliament is empowered to make inclusions and exclusions.

· This power is left to the central executive, The President, under Article 341.

· As per Article 341, those castes notified by the President are called SCs and STs.

Issues on Sub-Categorisation

· It is contended that some of the castes among the category remain grossly under-represented despite reservation in comparison to other Scheduled Castes.

· Inequality within the Scheduled Castes was not addressed properly.

· The “creamy layer” concept puts an income ceiling on those eligible for reservation.

E.V.Chinnaiah v. State of Andhra Pradesh (2004)

· Five-judge Constitution Bench of the Supreme Court of India had ruled that state governments had no power to create sub-categories of SCs for the purpose of reservation. Therefore, the case is transferred to a larger bench of 7 Judges.


4.STATES REJECT THE OPTIONS GIVEN BY THE CENTRAL GOVERNMENT REGARDING GST COMPENSATION

Background

Goods and Service Tax was introduced in India by the 101st Constitutional Amendment Act. GST is basically a destination based taxation system in which the state in which the goods are sold shall impose the tax and not the manufacturing state. However the earlier taxation systems were basically origin based taxing system, in which the manufacturing state will impose the tax. So during the introduction of GST, many manufacturing states raised concerns about loss of revenue. So the centre promised for the GST compensation to be paid for five years from the date of passing of the GST.

The GST (Compensation to States) Act, 2017

The Act imposed a Compensation cess on certain items fixed by the GST Council, which shall later be compensated to the states as a Compensation fund.

Options from Centre to the States

After the end of the 41st GST Council Meeting the Finance Minister made an announcement that, the Compensation which is to be paid to the states is around 3 Lakh Crores however the Cess collection is around 64,000 Crores. The Finance minister described that COVID 19 is an Act of God, so the Centre cannot pay the Loss of the revenue. And the Finance minister gave two options to the States either to borrow from the Compensation cess or asked the states to directly borrow from RBI.

Stance of the State Governments

The State Governments are rejecting both the options stating the centre is obliged to pay the GST Compensation as envisaged under Section 18 of the 101st Constitutional Amendment Act. They also states that the centre cannot escape from this duty stating COVID 19 as an “Act of God”, as Force Majure is not an exception provided under the Act.


5. TELECOS GET 10 YEARS TO PAY AGR DUES TO GOVERNMENT

What is AGR (Adjusted Gross Revenue)

Telecom companies were issued license at a fixed license fee under National Telecom Policy, 1994. In 1999 government gave an option to the companies to transfer to a revenue sharing fee model to escape the steep fixed license fee. They were required to pay a percentage of their adjusted gross revenue to the Government as annual license fee.

Background

The definition of AGR was the issue between the DoT and the Telecom companies. The DoT is of the opinion that these revenues should include non- telecom related resources such as deposits interest and assets sales whereas the telecom industries claimed that AGR should include revenue only from core services. The Supreme Court upheld the definition of AGR proposed by the DoT on October 2019 in the case Union of India vs Association of Unified Telecom Service Providers of India.

Term for repayment of dues extended

A 20 year formula for payment of the dues was proposed by the government before the three judge bench. The Supreme Court rejected it saying that a period of 20 years was excessive and it granted a period of ten years to pay the AGR dues. According to the October 2019 judgment only three month time was granted to pay the due amount on 2 of September the Supreme Court extended the time to repay AGR dues. This time concession was granted only on the condition that the due amount is paid punctually at the end of every financial year. Ten percent of the total dues are claimed by the DoT are to be paid within 31 march 2021. The yearly installments are to begin form Aril 1, 2021 till March 31,2031. Penalty and interest on penalty will be levied for and default based on the agreement.


6. NRC WORKS HIT BY COVID 19

News

· According to centre’s Standard Operating Procedure, a rejected person would have 120 days from the date of receiving the rejection slip to approach the Foreigners’ Tribunal for judging their citizenship status.

· The delay is caused because all the NRC officers are busy in COVID 19 duty. It was told that the work will resume by September 1.

What is NRC?

· The NRC is the list of Indian citizens and was prepared in 1951, following the census of 1951.

· The process of NRC update was taken up in Assam as per a Supreme Court order in 2013.

· In order to wean out cases of illegal migration from Bangladesh and other adjoining areas, NRC updation was carried out under The Citizenship Act, 1955, and according to rules framed in the Assam Accord.

The Assam Accord:

· Popular movements between 1979 and 1985 against undocumented immigrants in Assam led to the Assam Accord. It was a Memorandum of Settlement (MoS) signed between representatives of the Government of India and the leaders of the Assam Movement in New Delhi on 15 August 1985.

· The Accord agreed that all those foreigners who had entered Assam between 1951 and 1961 were to be given full citizenship, including the right to vote.

· The Supreme Court, which is supervising the entire process, set a hard deadline of July 31, 2019 for the final NRC. Deadline was extended to August 31st 2019 later.

Foreigners Tribunal:

· The foreigners tribunals are quasi-judicial bodies, unique to Assam, to determine if a person staying illegally is a “foreigner” or not.

· The Ministry of Home Affairs (MHA) has amended the Foreigners (Tribunals) Order, 1964, and has empowered district magistrates in all States and Union Territories to set up tribunals to decide whether a person staying illegally in India is a foreigner or not.

· Earlier, the powers to constitute tribunals were vested only with the Centre.

SarbanandaSonowal v. Union of India:

· The Hon'ble Supreme Court struck down the polemical Illegal Migrants (Determination by Tribunals) Act, 1983, ("I.M.D.T. Act") on grounds of violation of Articles 14 and 355 of the Constitution.

· The court also observed "(the conviction rate under the IMDT act) comes to less than half per cent of the cases initiated...(the IMDT Act) is coming to the advantage of such illegal migrants as any proceedings initiated against them almost entirely ends in their favour, enables them to have a document having official sanctity to the effect that they are not illegal migrants."

· The legal dimensions of the case and critique the rationale offered by the Supreme Court in striking down the Act. The Government of India, as a matter of policy, "does not support any kind of illegal migration either into its territory or illegal immigration of its citizens.

· It was also stated that the Government is committed to deporting illegal Bangladeshi migrants, but only lawfully. It asserted that the demand for deleting the names of alleged 41 lakh doubtful voters from the list of 2006 on the basis of religious and linguistic profiling would prima facie be illegal, arbitrary and violative of the secular and democratic credentials of India.


7. CLAUSE IN SPECIAL MARRIAGE ACT VIOLATES RIGHT TO PRIVACY SAYS PLEA

Section 6 of the Special Marriage Act

This Section directs the Marriage officer to maintain a Marriage Notice Book which comprises of the true notice given for marriages under Section 5 of the Act and it is to be kept open for inspection to any person at all reasonable times without any fee requirement. And a copy of such notice is to be published in a conspicuous place in his office. If either of the party does not reside in the locality of the marriage office where such notice has been given then that marriage officer shall transmit a copy of the notice to the marriage officer in whose locality such party permanently resides and such marriage officer shall publish the notice in his office in a conspicuous place.

What was the plea about

The Special Marriage Act intends to help Consulting adults who belong to different religion or caste to marry but under section 6 they are required to provide all their personal details. These details will be published for a period of 30 days at register office and any one can object. Publication of personal details is violation of privacy of couples and infringes upon the right of autonomy, dignity and the right to marry, of various couples as envisaged in K.S. Puttaswamy vs Union of India.


8. SC ISSUES NOTICE TO TN GOVERNMENT ON VEDANTA PLEA’S TO REOPEN STERLITE PLANT

The Supreme Court issued notice to the Tamil Nadu Government in a plea filed by the Vedanta Sterlite Copper Limited. The appeal was filed against the Madras High Court’s order of refusing to allow the reopening of the plant in Thoothukudi. The Court refused to grant interim relief in the form of immediate stay of the High Court’s decision. Posting the matter for hearing after four weeks, the Bench asked Vedanta to argue its case for interim relief on that date.


9. SC REJECTS WOMEN ARMY OFFICER’S PLEA:

The Supreme Court declined to hear a plea by a batch of Short Service Commission women officers seeking benefits of permanent commission in the Army. The court had held that only women officers who had completed 14 years of service before or by February 17 would be considered for permanent commission. Court stated that “if it relaxed that date of cutoff, then there will be no stop”. The court said any relief granted to this batch would open floodgates foe more such petitions.


10. SC ISSUES DIRECTIONS FOR PROTECTION OF SHIVLINGA AT UJJAIN'S MAHAKALESHWAR TEMPLE

The SC has been dealing with the issue of protecting the ‘Jyotirlingam’, a devotional representation of Lord Shiva at the ancient Mahakaleshwar Jyorirlinga Temple at Ujjain in Madhya Pradesh. It passed an order on 01/09/2020 giving directions to the Temple management Committee on how to preserve the Shivling in the Mahkaleshwar Temple as there is erosion of Shivlinga taking place.


11. PIL SEEKS USE OF DIGITAL SIGNATURES FOR AUTHENTICATING GOVERNMENT AND COURT ORDERS

A PIL has been filed before the Madras HC seeking that Digital Signatures should be attached along with Government Orders. In recent times, it has become a norm to circulate Government Orders and Court verdicts through electronic means even for official purposes, but none of these documents contain digital signatures to prove their authenticity. The Madras HC has sought response from both Centre and State Government on this matter.


12. “NON-IMPLEMENTATION OF SEC.357-A CRPC BY CRIMINAL COURTS IS DISTURBING”- CHHATTISGARH HC

The Chhattisgarh HC in XYZ v. Chhattisgarh and another, observed that “despite clear mandate contained in Section 357-A of the code and mandate of their Lordships of the SC in this regard in the Judgements cited, the criminal Courts are not even considering the question of compensation to the victims, particularly the rape victims which is not only disturbing but warranting remedial steps to be taken forthwith”. In this case, the HC ordered Rupees 7 Lakh with interest as compensation under Sec.357-A Crpc to the Rape victim.


13. BOMBAY HC DIRECTS NTA TO CONSIDER THE PLEA OF STUDENTS WHO ARE UNABLE TO ATTEND JEE DUE TO FLOOD OR TRANSPORTATION ISSUES

The Nagpur bench took suo moto cognizance of a letter written by Nitesh Bawankar, a resident of Bhandara, in which he highlighted the problems being faced by students residing in the flood hit areas. But, the Bombay High Court refused to grant stay on JEE Exam for students living in flood affected areas of Vidarbha region. However, the court noted that if any student from the flood affected areas is unable to attend the exam, he/she may forward a representation to the Apex body of JEE Main Examination which the court said must be decided within 15 days.


14. PROPOSAL TO DECRIMINALIZE BEGGING IN RAILWAYS

The Railway Board has called for suggestions on the proposed amendments to Section 144(2) of the Railway Act, 1989, which removes penalties for begging in trains or in railway stations. It also plans to amend Section 167 which deals with the offence of smoking and instead introduces spot fine for smoking and discharges the offender from further proceedings.


15. HOMEMAKERS ON A HIGHER PEDESTAL THAN EARNING MEMBERS, SAYS HC:

The Madras High Court held that in motor vehicle accident cases, while awarding the compensation for injured housewives, the family status, income of their husbands and other mitigating factors should be taken into consideration. It said that when a home maker dies or becomes disabled, the impact it creates on the family would be much greater than the death of an earning member as the love and affection showered by her could not be expected from domestic help. Therefore, they stand on a higher pedestal than that of the earning member in a family.


16. PETITION THAT SOUGHT LOCKDOWN RELIEF CLOSED

The Madras High Court on 02/09/2020 closed a suo moto petition that it had taken during the nationwide lockdown that was imposed during March to grant extraordinary relief such as extending the validity of bail and parole orders passed by Criminal courts across the state. The Court closed the Writ Petition after observing that the lockdown norms had been relaxed to a great extent, and there is no need for giving such omnibus protection to litigants.



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