ISSUE – II (SEPTEMBER 7 – SEPTEMBER 13)


VOX IURA MAGAZINE- ISSUE 2
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1. Udumalpet Honour Killing Case

Background: Kausalya, a resident in Dindigul District belonging to Thevar Community married Shankar who belonged to the Schedule Caste community against the will of her parents. On 13th March 2016, a gang attacked the couple in Udumalpet Town Bus Stand where Kausalya survived with injuries whereas Shankar succumbed to injuries. On December 2017, the Principal District and Sessions Court, Tiruppur convicted 6 out of 11 accused including the father of the victim, B.Chinnasamy, for murder and sentenced him to death penalty and awarded life imprisonment for 25 years to other five accused. However, the court acquitted the victim’s mother and paternal uncle. The Madras High Court on June 22 acquitted the accused B. Chinnasamy and ordered him to be released forthwith.

SC agrees to hear appeal

Aggrieved by which, the State of Tamil Nadu preferred an appeal against the decision of the Madras High Court which acquitted the prime accused B. Chinnasamy. The Supreme Court on 7th September agreed to hear the appeal.


2. Karnataka High Court Extends Stay On Publication Of Final Notification On Draft Eia,2020

The Karnataka High Court on August 5th passed orders directing the Ministry of Environment to abstain from publishing the final draft notification of the Environment Impact Assessment 2020 until the 7th of September on the ground that the right of citizens to file the objection was taken away, as the draft EIA 2020 was published two days before the nationwide lockdown. The Karnataka High Court on Monday extended the stay imposed until further orders.


3. “Loss Of Consortium Can Be Awarded To Children And Parents Also In Motor Accident Claims” - Sc

In New India Assurance Company Ltd. v. Somwati, appeals were filed by three insurance companies regarding the payment of compensation under two categories i.e., “loss of consortium” and “loss of love and affection”. The issue was whether the consortium can be awarded to children and parents also. It was contended that that compensation under the category of loss of love and affection is wholly without jurisdiction. The Supreme Court upheld the decision of the three- judge bench in United India Insurance Company v. Satinder Kaur alias Satvinder Kaur and held that parental and filial consortium can be awarded and it further laid down that the loss of love and affection is covered under the loss of consortium, hence there is no justification to award it separately.


4. Petition In Sc Questioning Nlat

Introduction

National Law School of India University (NLSIU) decided to conduct National Law Admission Test 2020 (NLAT) instead of the Common Law Admission Test 2020(CLAT) for the law aspirants. The Petition urged the court to quash the holding of the NLAT.

What is CLAT?

CLAT is a centralized national level entrance test for admissions to 22 National Law Universities in India.

What is NLAT?

NLAT is a separate entrance examination for admission to five year B.A., LL.B (Hons.) course for the academic year 2020-2021, to be conducted by the NLSIU with the exclusion of all the other National Law Schools.

Why should it be quashed?

It is in violation of Fundamental Rights guaranteed under Article 14 and Article 21 of the Indian Constitution. It is also in contrary to the Memorandum of Understanding (MoU) entered with the Consortium of National Law Universities. Further, there is no sufficient time for the students to prepare for the examination at such a short notice.


5. Vedanta’s Vendetta

Background:

On the 23rd March of 2013, there was a large Sulphur dioxide (SO2) leak from Vedanta Ltd.’s Sterlite Copper plant affecting thousands of residents in Tuticorin. The Tamil Nadu Pollution Control Board (TNPCB) ordered to shut down the sterlite plant. But, Vedanta reopened it by obtaining a favorable order from the New Delhi bench of National Green Tribunal (NGT).The Supreme Court (SC) in 2019 dismissed the tribunal’s judgment citing lack of jurisdiction, and directed Vedanta to appeal before the Madras High Court. Meanwhile, TNPCB took notice of the company’s failure to comply with license conditions and refused to renew its license to operate on 09th April, 2018. On 28th May, 2018, the Tamil Nadu government issued a Government Order (G.O) to shut the plant permanently in the backdrop of public protest and police firing. Once again, Vedanta obtained a favorable order from the principal bench of the NGT in New Delhi. The history repeats itself, as the Supreme Court sets aside the order of the NGT for lack of jurisdiction and directed it to appeal to the Madras High Court.

High Court’s Order:

The Madras High Court has confirmed the orders of the TNPCB and that of the Tamil Nadu Government and consequently dismissed all appeals filed by Sterlite. The Madras High Court found several irregularities in Vedanta’s acts including improper location of the plant, violation of the master plan, unlawful expansion of the factory, land fraud, repeated non-compliance, inadequate greenbelts, slag dumps, high level of mercury emissions, affecting the health of surrounding people, water contamination and 2013 gas leak among various other misdeeds.

Plea before the Supreme Court:

The Supreme Court issued notice to the Tamil Nadu Government in a plea filed by the Vedanta Sterlite Copper Limited on 1st September, 2020.The appeal was filed against the Madras High Court’s order which refused to permit the reopening of the plant in Tuticorin. 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.

6. Sc To Centre: Adhere To Ministry Circular On Roads In Char Dham.

Context:

The Supreme Court ordered the center to adhere to the Union Road Ministry Circular of 2018, which advised against building full-fledged roads cutting across the fragile Himalayan slopes, while implementing the Char Dham project.

Char Dham Project:

It is a program undertaken by the Ministry of Road Transport and Highways for connectivity improvement for Char Dham (Kedarnath, Badrinath, Yamunotri and Gangotri) in Uttarkhand. The cost of the project is around Rs.12,000 crores. It envisages improvement as well as development of 889 km long national highways.

Implementing Agencies: Uttarakhand State Public Works Department (PWD), BRO and the National Highway & Infrastructure Development Corporation Limited (NHIDCL).

National Green Tribunal: The NGT had ordered the Char Dham road widening project to proceed, while constituting an expert committee that will oversee the environmental concerns relating to the project. The issue for consideration was violation or damage by the project and the required safeguards. The bench stated that, “Protection of environment is the primary concern, no project shall be carried out if it endangers human health or public safety, at the same time cannot stop what is in large public interest and that also cannot be held per se illegal if appropriate safeguards are in place”

Supreme Court: The Supreme Court had cleared the decks for Char Dham project on 16.08.2019. It modified an earlier order of National Green Tribunal by constituting a fresh high powered committee to look into the environmental concern.

High Powered Committee:

The Committee consists of representatives from Wildlife Institute of India(WII), Physical Research Laboratory under government’s space department and Ministry of Defense.SC asked the committee to submit its recommendation within 4 months. The committee shall hold quarterly meetings to ensure compliance and may suggest any further measures after each review meeting. It shall consider cumulative and independent impact of the project on the entire Himalayan valleys. It will also suggest areas in which afforestation should take place and the kind of saplings to be planted.

The Border Organisation (BRO) has completed construction of a 440m long tunnel below the Chamba town on the Rishikesh-Dharasu road highway(National Highway- 94).


7. Sc Grants Interim Bail To 22 Anti Caa Protesters After It Kept Karnataka Hc Bail Order Stayed For Six Months

Background:

The Supreme Court on 6th March 2020 had stayed the Karnataka HC’s order, in the case of State of Karnataka v. Ashik @ Mohammedasik & Ors., of granting bail to those persons booked on allegations of violence and attack on police in the anti CAA protest held on December 19, 2019 in Mangalore. The Karnataka HC while granting bail directed the registration of FIRs against Police Officials on the prima facie finding that they had resorted to violence.

The Supreme Court has granted bail to those 22 Anti CAA protestors with the condition that they shall report to the nearest Police Station on every alternative Monday and they shall ensure that they do not engage in any violent activities or meetings. It also stated that the observations of the Karnataka HC on question of fact and law are obviously prima facie and does not affect the trial.


8. Death Occurring Due To Single Stab Injury Can Attract Section 302 Of Ipc (Stalin Vs. State):

The Supreme Court in Stalin vs. State has observed that even in cases where death occurs due to single stab injury, section 302 of the IPC can be attracted. It stated that there is no hard and fast rule that in a single injury S.302 of IPC would not be attracted. It depends upon the facts and circumstances of each case. The nature of injury, the part of the body where it is caused, the weapon used in causing such injury are the indicators of the fact of whether the accused has caused the death of the deceased with an intention of causing death. It cannot be laid down as a rule of universal application that whenever death occurs on account of a single blow, section 302 IPC is ruled out.

9. Writ Petition Not Maintainable Against Judicial Order Passed By High Court: Sc

In the case of Neelam Manmohan Attavar vs. Manmohan Attavar (D) Thr LRs, a Petition regarding domestic violence was filed before the Metropolitan magistrate and it was dismissed. Subsequently, an appeal was filed before the Additional Sessions Judge, Bengaluru which was also dismissed and a revision petition before the High court of Karnataka was also dismissed. Thus, a writ petition under Article 226 of The Indian constitution was instituted by the petitioner seeking to challenge the judgment delivered by a single judge of the High court of Karnataka which was later transferred to the Apex Court. The Supreme Court held that a writ petition under Article 226 of the constitution would not be maintainable to challenge an order passed by the High Court in the exercise of its revisional jurisdiction and further stated that bashing an order on the ground that it is void will not enable a litigant to avoid consequences which emanate from order. The SC however left open the rights and remedies available to the petitioner by the way of Special Leave Petition under Article 136 of the Constitution.


10. MARATHA QUOTA CASE TO BE REFERRED TO LARGER BENCH AS IT INVOLVES INTERPRETATION OF CONSTITUTION (102nd AMENDMENT) ACT, 2018:

Background: Section 4 of the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018 declared Marathas to be a “socially and educationally Backward class” and reserved seats up to 16 % in educational institutions and 16% in direct recruitment for public services.

Public interest litigation was filed before the High Court of Bombay challenging the constitutional validity of the said act. The Bombay High Court upheld the constitutionality of the act but reduced the quantum of the reservation to 12% in educational institutions and 13% in respect of public employment. Unsatisfied with the judgment, the appellants filed an appeal before the Supreme Court.


Special leave petition before the Supreme Court.

Challenges before the Supreme Court:

1. Breach of ceiling limit - Validity of providing reservation beyond the ceiling limit of 50% set out by the Supreme Court in the Indra Sawney case. Because once the Maratha quota is implemented reservation in the state of Maharashtra reaches up to 64 – 65 %.In the case of Indra Sawney and other relevant judgments, it was set out that only in certain extraordinary circumstances the Court is permitted to go beyond 50 %.

2. Competence of State Legislature - Validity of determining Marathas as “Socially and Educationally Backward class” by the Maharashtra State Backward Class Commission (MSBCC).The constitution (102nd Amendment) Act, 2018 provides constitutional status to the National Commission for Backward Classes and authorizes to inspect complaints and protection of Socially and Economically Backward Classes.

Current situation: Since, the issue involves the interpretation of the Constitution (102nd Amendment) Act, 2018 the Three-Judge bench oh the Supreme Court has stayed the operation of the law and has referred the issue to a constitution bench comprising of 5 judges.

11. HC Dismisses Plea To Declare Hindu Religious & Religious Endowments Act Unconstitutional

The Madras HC on 10/09/2020 dismissed as withdrawn a writ petition which was filed to declare the Tamil Nadu Hindu Religious and Charitable Endowments (HR& CE) Act of 1959 as unconstitutional.

Claims of Petitioner

The Litigant claimed that the State Government had put fetter on practice of Hindu religion by enacting the 1959 law. A secular state could not be allowed to control Hindu Temples alone. “The enactment of a law for Hindus alone is wounding and hence this writ petition” read his affidavit. He also contended that the Act violates Art.14 and 15 of the Constitution besides being opposed to Articles 25 and Art.26 (freedom to manage religious affairs).

Holdings of the Court

The Chief Justice pointed out that there was also Wakf Act of 1995 and many mosques were covered under the wakfs. He said that there was also the Sikh Gurudwaras Act of 1925. Unimpressed with the submissions, the Chief Justice said the argument might carry weight in the United Sates whose Constitution itself prohibits the state from enacting laws aimed at administering religious institutions. But, Indian Constitution does not impose such prohibition. Hence in order to avoid the writ petition getting dismissed on merits, in which case for the same relief could not be filed in the future, the petitioner’s counsel chose to withdraw.

12. Removal Of Slum Dwellings Around Delhi Railway Tracks: Slum Dwellers Move To Supreme Court

Background of the case

The Supreme Court of India on August 31st, 2020 ordered the removal of about 48,000 slum dwellings situated along the railway tracks in Delhi. A three-judge bench headed by Justice Arun Mishra, in one of his last orders before his retirement, directed State authorities to remove the jhuggi jhopri clusters in the railway safety zone within a period of three months. The order was passed in the long-running case of M.C. Mehta vs. Union of India &Ors., which was in response to a report by Environment Pollution (Prevention & Control) Authority for the National Capital Region on the piling up of garbage along railway tracks. Shockingly, the order stated that “no court shall grant any stay with respect to removal of the encroachments” and in case any such interim order is granted “that shall not be effective”.

Application against the order

Aggrieved by the order, 16 slum dwellers have approached the Supreme Court seeking impleadment in the MC Mehta case. Threatened by eviction from their homes, that too amid a global pandemic, the applicants have prayed that the Delhi Urban Shelter Improvement Trust(DUSIB) be directed to conduct a demand survey of the JJ clusters, undertaking in-situ redevelopment and rehabilitation. It is submitted that out of the total 196 JJ clusters on the land of DUSIB, MCD, and Govt. of NCT and its agencies, demand surveys of total 158 JJ clusters have been completed leaving 38 JJ clusters. However, if the same is not completed, affected parties cannot be rehabilitated. The applicants further pointed out that they work in the markets and industrial areas near their residence and their eviction thereof will make it very difficult to earn their livelihood. The applicants are also aggrieved for not having received an opportunity of being heard before the Court.

The applicants submitted before the Court of law that in 2016, the Director of the Railway Board had promised that no demolition would be carried out by them without joint notice by the representatives of DUSIB and Railways and without Rehabilitation plan for eligible JJ dwellers. However, the eviction order of the Top Court deprives them of such benefits. Moreover, the applicants submitted the United Nations Human Rights Special Procedure COVID-19 Guidance Note which categorically mentioned that the States must "Declare an end to all evictions of anyone, anywhere for any reason until the end of the pandemic and for a reasonable period of time”.


13. Prashant Bhushan Contempt Case

SC Seeks Attorney General’s Aid in Bhushan Case

The Supreme Court on 10/09/2020 reached out to Attorney-General K.K. Venugopal to act as amicus curiae and assist it with legal questions raised in contempt case against civil rights lawyer Prashant Bhushan for his remarks on judicial corruption in Tehelka magazine in 2009.

Background of the case

The apex court had in November 2009 issued contempt notices to Bhushan and Tejpal for allegedly casting aspersions on some sitting and former top judges in an interview to news magazine “Tehelka”. Tejpal was the editor of the magazine. The SC on 25th August 2020 decided to refer the matter to another bench to deal with certain larger questions related to freedom of speech and leveling of corruption charges against the Judiciary.

Questions before the Court

The case has brought to focus pertinent questions of law, including whether a person who expresses a bona fide opinion about judicial corruption is obliged to prove it or “whether it is enough to show that he bona fide held that opinion”. The case also involves the issues whether the suo motu powers of the Supreme Court to initiate contempt under Art.129 to curtail free speech and expression is restrained by the Contempt of Courts Act, 1971. One of the questions also deals with the violation of due process as suo motu contempt proceedings in the Supreme Court has no provision to appeal.


14. Prashant Bhushan Moves SC Seeking ‘Right To Intra – Court Appeal’ Against The ‘Original Contempt Court Orders’

Advocate Prashant Bhushan has approached the Apex Court seeking a declaration that a person convicted in an original criminal contempt case has a “right to an intra-court appeal” to be heard by a larger and different bench. In the plea, he vehemently contended that the right to appeal is a fundamental right guaranteed under both the Indian Constitution and under International law. Therefore, permission to challenge the contempt order would act as a vital safeguard against ‘wrongful conviction’ and would truly enable the provision of truth as a defence. Mr. Bhushan further added that considering the fact that there is inherent unavoidable conflict of interest involved, and the fact that liberty of the alleged contemnor is at stake, “it is of utmost importance that certain basic safeguards are designed which would reduce (though not obviate) chances of arbitrary, vengeful and high handed decisions.”

Inherent bias is one of the crucial grounds, on the basis of which the petitioner sought the aforesaid declaration. According to Bhushan, contempt proceedings are one in which the injured party (Supreme Court) acts as the prosecutor, the witness and the judge, thereby raising fear of inherent bias. As a judge, the power of the Supreme Court to convict and sentence the accused is unlimited and arbitrary. Nemo potestesse simul actor et judex i.e. No one can be at once a suitor and a judge. Hence, there arises a need for an intra-court appeal.

Wherefore, Mr. Bhushan has sought an appropriate direction declaring that review petitions filed against orders of conviction by Supreme Court in original criminal contempt cases would be heard in open court by a different bench.


15. Neet Aspirants Shall Be Permitted To Undergo The Examination In Urdu Medium: Authority Guarantees The Bombay High Court

In the case of Ms.Muskan&Anr v. Union of India &Ors., W.P. No. 8065/2020, a Writ Petition was filed before the Nagpur Bench of the Bombay High Court wherein NEET-UG aspirants had pleaded before the Court that they should be allowed to take the said examination in Urdu medium. The Division Bench of Justices R.K. Deshpande and Pushpa V. Gandiwala heard the aforesaid matter on the 7th of September, 2020, and directed issuance of notice to the respondents. On 10th September, Advocate PruthvirajChavhan, the counsel appearing on behalf of the Respondent-3 made a statement before the Court that the question of allowing the petitioners to undergo NEET 2020 (UG Examination) in Urdu medium and providing them question papers accordingly is under due consideration and appropriate decision shall be taken at the earliest. Subsequently, on the 11th of September, the counsel appearing for respondent-3 submitted that the decision has been made by the appropriate authorities, and thereby, the petitioners shall be permitted to take their NEET examination in Urdu medium and question papers shall also be provided in the Urdu language. It is to be noted that NEET UG examination-2020 is to be held on 13.09.2020. After hearing the submissions, the Bench dismissed the petition as infructuous since the grievance of the petitioners does not anymore survive.

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