ISSUE–III(SEPTEMBER 14–SEPTEMBER 20)


VOX IURA MAGAZINE- ISSUE 3
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1. CENTRE OPPOSES TO RECOGNISE THE PLEA OF SAME SEX MARRIAGES

Background of the case:

The Petitioners were seeking a PIL for a declaration recognizing the right of same sex couples to get married under the Hindu Marriage Act, 1956 before the Delhi High Court. The Petition filed on behalf of activists and members of the LGBTQ community avers that the Hindu Marriage Act allows a marriage to take place between any two Hindus, without discriminating between homosexuals and heterosexuals.

Centre Opposes the Plea:

The Centre on 14.09.20 opposed the plea to recognise same sex marriages claiming that the concept of same-sex marriage is not recognised under India culture or under India law. The Solicitor General submitted that unless several statutory provisions are altered, which the court cannot do, the relief as prayed for cannot be granted.

The bench comprising Chief Justice DN Patel and Justice Prateek Jalan however expressed that such a petition must be viewed with open mind. Acknowledging that though the position of law might be different, the Bench stated that “changes are happening across the world”.

2. RIGHTS OF LGBTQ COMMUNITY:

Despite the Supreme Court reading down section 377 of the Indian Penal Code to decriminalise consensual homosexual acts in India two years ago, it is not possible for gay couples to get married. The Denial of the right to marry encroaches upon fundamental rights of LGBT people enshrined in the Constitution, asserts the Petition filed by Advocates Mukesh Sharma and Raghav Awasthi.


3. SC TO HEAR PLEA TO REVIVE DK BASU CASE FOR FRESH GUIDELINES TO CURB CUSTODIAL TORTURE

A plea has been filed before the Hon’ble SC praying for issuance and laying down guidelines to fill the gaping lacunae in the India Legal system, and for ensuring an effective and purposeful framework and its enforcement to fulfil the constitutional obligation of ensuring and securing the right to life and to live with human dignity and prevention of custodial torture/deaths/rapes, in exercise of the plenary and inherent power of the Supreme Court, under Art.142 of the Constitution of India. The plea had been filed in the wake of horrific incident of custodial deaths of the father-son duo of Jayaraj and Bennix in Tamil Nadu in June 2020.

Dr. Singhvi, who had acted as an Amicus Curiae in the 1996 case of DK Basu v. State of West Bengal, has filed an application seeking for the revival of the proceedings in the landmark case. It further states that there has been an “increasing trend of normalizing of custodial deaths” which necessitate the need for a “robust, uniform, effective and working investigation and mortaring apparatus.”

4. SC: MAJOR, UNMARRIED DAUGHTER NOT SUFFERING FROM ANY ABNORMALITY CANNOT CLAIM MAINTENANCE FROM FATHER U/S.125 CR.P.C:

The Apex Court, in the case of Abhilasha v. Prakash (Criminal Appeal No.615 of 2020), has held that a daughter who attained majority and is unmarried and not suffering from any physical or mental abnormality/injury, is not entitled to claim maintenance from her father in proceedings u/s.125 Cr.P.C.

Background:

The appellant, when she was a minor, had filed an application under Section 125 Cr.P.C. before the Judicial Magistrate First Class, Rewari. The Magistrate disposed the application limiting the claim of the appellant, to claim maintenance until she attains majority. Aggrieved by the aforesaid order, the appellant filed a criminal revision petition before the Court of Sessions Judge, which was dismissed and thereafter, appellant preferred an application under Sec.482 Cr.P.C., challenging the orders of Sessions Judge as well as the Judicial Magistrate. The High Court of Punjab & Haryana upheld the lower courts order and dismissed the application u/s.482 Cr.P.C. Finally, the appellant approached the Supreme Court by invoking the Special Leave Petition.

Issue For Consideration:

The issue considered by the Apex Court was:

Whether a Hindu unmarried daughter is entitled to claim maintenance from her father under Section 125 Cr.P.C. only until she attains majority or she can claim maintenance till she remains unmarried?

Holdings:

The appellant relying on the decision of Jagdish Jugtawat v. Manju Lata, (2002) 5 SCC 422, as well as Section 20 of the Hindu Adoptions and Maintenance Act, 1956 contended that she is entitled to claim maintenance till she is married. However, the Court observed that the decision in Jagdish Jugtawat cannot be read to laying down the ratio that in proceedings under Sec.125 Cr.P.C. filed by the daughter against her father, she is entitled to maintenance relying on the liability of the father to maintain her unmarried daughter as contained in Sec.20(3) of the Act, 1956.The Bench headed by Justice Ashok Bhushan held that unmarried Hindu daughter can claim maintenance from her father till she is married relying on Section 20(3) of the Hindu Adoptions and Maintenance Act provided she pleads and proves that she is unable to maintain herself. For the enforcement of the aforesaid right, her application/suit has to be under Section 20 of the Act, 1956 and not under S.125 Cr.P.C. The legislature never contemplated to burden the Magistrate while exercising jurisdiction under S.125 Cr.P.C. to determine the claims contemplated by Hindu Adoption & Maintenance Act, 1956, the Bench added. While dismissing the appeal, the Bench gave liberty to the appellant to take recourse to Section 20(3) of the Act, 1956 for claiming any maintenance against her father.


5. TRIBUNAL RULES, 2020 IS MANIFESTLY ARBITRARY: ARVIND DATAR IN SC

The Supreme Court Bench of Justices L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat on 15/09/2020 heard arguments in a batch of pleas concerning the validity of the Tribunal Rules, 2020 and the appointment to the Tribunals.

Background:

The Madras Bar Association has filed a writ petition in the Apex Court challenging the constitutionality of the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020. It has been contented that the Rules are in “contravention of the principles of separation of powers, independence of the judiciary (both being part of the basic structure of the Constitution), and are against efficient and effective administration of justice”

The 2020 Rules had been notified by the Central Government on February 2020, by exercising the powers under Section 184 of the Finance Act, 2017, after the Supreme Court set aside similar Rules made in 2017 in the case of Rojer Mathew v. South Indian Bank Ltd.

Arguments Before The Bench:

Senior Advocate Arvind Datar, representing the Madras Bar Association, argued before the Court that all the defects which had been held unconstitutional in the 2017 Rules have been reiterated in the 2020 Rules and therefore, is liable to be struck down. Datar also submitted that “If some Tribunals do not allow a lawyer of long standing to be appointed as judicial officers and others do, then it should be struck down as manifestly arbitrary and this is a dangerous trend”. The matter will be again taken up by the Court on September 16, 2020.

6. SC SEEKS RESPONSE TO PLEA TO BAN ART IN LIVESTOCK

A petition was filed by a Madurai resident to ban Artificial Reproduction Techniques including Artificial Insemination. It said art performed on livestock and animals without any proven biomedical need was cruel, illegal and mala fide and is violative of the Prevention of Cruelty to Animals Act, the Biological Diversity Act and the Environment (Protection) Act. The SC issued notice to the Government, The Animal Husbandry Board of India and the National Biodiversity Authority.

7. SC STAYS BROADCAST OF TV PROGRAMME:

A show titled 'Bindas Bol' telecasted on Sudarshan TV was claimed to contain hate speech and defamation against Jamia Milia Islamia and Muslim Community. Suresh Chavhanke, the anchor of the show was alleged to expose the "UPSC Jihad" conspiracy i.e to expose the infiltration of the Muslim community in Civil services exams.

Delhi High Court: On a petition filed by the students of Jamia Milia Islamia, a single judge of the Delhi High Court on 28 August 2020 stayed the broadcast of the programme.

On 9 September 2020, the Union government permitted the broadcast of the show on ensuring that the program was consistent with the Cable Television Networks (Regulation) Act, 1995.

Supreme Court: Writ petition under Article 32 of the Indian Constitution.

After the Broadcast of episodes from September 11 - 14, the Supreme Court prima facie observed that the object of the programme was to vilify the Muslim community and restrained the broadcast of the remaining episodes of 'Bindas Bol' programme.

8. PARLIAMENT PASSES AIRCRAFT (AMENDMENT) BILL, 2020:

The Minister of Civil Aviation, Mr. Hardeep Singh introduced the Aircraft (Amendment) Bill, 2020 in Lok Sabha on February 4, 2020, and was passed by Lok Sabha on March 17, 2020. This bill seeks to amend the Aircraft act, 1934, to bring in par with international standards, procedures, and practices as laid down by International Civil Aviation Organization (ICAO).

September 15, 2020 – The Bill was passed by Rajya Sabha and is now presented before the President for his assent.

Key Provisions of the Bill:

The Bill gives statutory status to (i) the Director General of Civil Aviation (DGCA), (ii) the Bureau of Civil Aviation Security (BCAS), and (iii) the Aircraft Accidents Investigation Bureau (AAIB). The Centre will appoint a Director general to head each of these bodies.

The Central Government is given the power to make rules on (i) registration of aircraft, (ii) regulating air transport services, and (iii) prohibition of flight over any specified area.

· The Director General of BCAS or any authorized officer is also empowered to issue directions and make rules on certain matters.

· Designated officers not below the rank of Deputy Secretary are appointed to adjudicate penalties under the bill. Aggrieved persons not satisfied with the order of a designated officer can make an appeal to an appellate officer within 30 days from the day of the order received.

· The Bill has raised the maximum fine limit for all the offences from Rs. 10 lakhs to 1 crore rupees and the penalty for various offences is imprisonment for up to 2 years or a fine up to Rs. 10 lakhs, or both.

· The Offences under the Act may be tried by courts equivalent or superior to Metropolitan Magistrate or a Magistrate of the first class.

· The Aircraft belonging to the Naval, Military, or Air forces of the Union are exempted from the provisions of the Act.

9. ENFORCEMENT OF FOREIGN AWARDS AND ITS LIMITATION PERIOD

The Supreme Court bench comprising of Justices S. Abdul Nazeer, Indu Malhotra and Aniruddha Bose held that the period of limitation for filing a petition for enforcement of a foreign award under Sections 47 and 49 of the Arbitration and Conciliation Act, would be administered by Article 137 of the Limitation Act, 1963 and not by Article 136 of the same Act.

The bench observed that Article 136 of the above said Act will not be applicable as it is confined only to the decrees of a civil court in India, and since the application for execution of a foreign decree is not covered under any of the Articles of the Limitation Act, it would thus be covered by Article 137.

Article 137 of the Limitation Act, 1963:

Article 137 is applied for any other application for which no period of limitation is provided elsewhere in this Division (3rd Division of the Schedule). The period of limitation is up to 3 years from when the right to apply accrues.

Decision of the Court:

The Court upheld a foreign arbitration award in favour of Vedanta and Videocon for the development of Ravva Oil and gas fields off the coast of Andhra Pradesh.

10. SC ORDER EXTENDING LIMITATION PERIOD DOES NOT ENLARGE THE PERIOD UP TO WHICH DELAY CAN BE CONDONED IN EXERCISE OF STATUTORY DISCRETION (SAFUGA AHMED V. UPPER ASSAM PLYWOOD PRODUCTS PVT. LTD.):

Context: Clarifying its 23rd March order, the SC observed that the said order extended only the “period of limitation” and not the period upto which delay can be condoned in exercise of discretion conferred by the statute.

23rd March 2020 order of SC: To ensure that lawyers to do not have to come physically to file proceedings, it is hearby ordered that a period of limitation in all such proceedings, irrespective of limitation prescribed under the general law or special laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this court in present proceedings”.

Referring to Section 10 of the General Clauses Act, 1897 and the provisions of the Limitation Act, the bench said that the expression “prescribed period” appearing in Section 4 cannot be construed to mean anything other than the period of limitation.

1. Relief of Specific Performance of contract is of longer discretionary after 2018 amendment :(B.Santhoshamma v. D. Sarala)

The bench comprising Justices Uday Umesh Lalit and Indira banerjee observed that relief of specific performance of a contract is no longer discretionary, after the 2018 amendment in an appeal arising out of a specific performance suit.

Though the case involved interpretation of Specific Relief Act prior to 2018 amendment, the bench observed that, as per section 10, The specific performance of a contract shall be enforced by the court subject to the provisions contained in Section 11(2), Section 14 and Section 16. The bench noted that Section 12 of the Specific Relief Act carves out exceptions, where the court might direct specific performance of a contract in part.

2. Special benches to hear cases against legislators:

Context: The SC has asked the Chief Justices of HCs to head special benches and immediately hear long pending criminal cases against sitting and forming legislators.

Background: Over 4400 criminal trials have been held up, some for decades, because the powerful MPs and MLAs had approached the High Courts and got an interim stay. There are over 2500 criminal cases against sitting legislators alone.

In an order published against criminalization of politics, the bench requested the Chief Justices to take up these cases which have been in the backburner indefinitely just because the courts had granted an interim stay.


11. THREE BILLS IN LOK SABHA TO BRING IN CHANGES IN LABOUR SECTOR

Labour Minister Santosh Kumar Gangwar introduced the Bills, including the Occupational Safety, Health and Working Conditions Code, 2020, the Industrial Relations Code, 2020, and the Code on Social Security, 2020.

On 19th September 2020 - The government introduced three Bills in the Lok Sabha to amalgamate laws on social security, occupational safety and health and industrial relations.


12. MSMES NOT TO BE HIT BY NEW IBC BILL: MINISTER

The Insolvency and Bankruptcy Code (Second Amendment) Bill (IBC), 2020 was passed in Rajya Sabha. This Bill replaces the Ordinance passed in June 2020.

The amendment ensure that fresh insolvency proceedings will not be initiated for at least six months starting March 25 amid the COVID-19 pandemic. The provisions of the IBC will be confined to only those default payments that may arise due to the COVID-19 period, and will not affect the applications filed before March 24, 2020, when the lockdown was imposed.

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