ISSUE–IV (SEPTEMBER 21–SEPTEMBER 27)


VOX IURA MAGAZINE- ISSUE 4
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1. TIME OF PUBLICATION OF E-GAZETTE IS SIGNIFICANT FOR DETERMINING THE ENFORCEABILITY OF NOTIFICATIONS – SC After the Pulwama attack, the government of India in the exercise of its power to increase import duty under Section 8A (1) of the Customs Tariff Act, 1975 published a notification and subjected all goods, originating in or exported from the Islamic Republic of Pakistan, to an enhanced Custom duty of 200%. The time at which notification was uploaded or published in the e-gazette was 20:46:58 hours. In the case of Union of India vs M/S G.S. Chatha Rice Mills&Anr., the respondents’ imported goods from Pakistan had presented their bills of entry and the ‘self-assessment’ process before the notification was uploaded. The SC held that the accurate time when the e-gazette is published is significant for determining the enforceability of the notifications and further stated that such notification under Section 8A (1) of the said Act cannot apply retrospectively.

2. GOVERNMENT TABLES BILL TO AMEND FCRA The Foreign Contribution Regulation Act (FCRA), 2011 has been introduced in the Lok Sabha to make the provisions more rigorous. The government has said there is a need to streamline the provisions of the said Act by strengthening the compliance mechanism, enhancing transparency and accountability in the receipt and utilization of foreign contribution.

3. PLEA SEEKING EQUAL PROTECTION OF TRANSGENDER AGAINST SEXUAL CRIMES A plea has been preferred in the Supreme Court seeking equal protection of laws to the transgender community from sexual crimes in context of Indian Penal Code. The plea states that there is no provision or section in the IPC which may protect the third gender from sexual assault by males/females and from other transgender and anti-discrimination laws are to safeguard the transgender community. The Plea challenges Sec.354A clauses(i), (ii), and (iv) and sub-section (1) of IPC which exclude victims of sexual harassment who are transgender persons, as being ultra vires of Articles 14, 15 and 21 of our Constitution. The petitioner adds that statistics have documented that incidents of sexual violence against transgender indicate shockingly high levels of sexual abuse and assault where one in two transgender individuals are sexually abused or assaulted at some point in their live. The plea prays for directions to make gender-neutral sexual harassment mechanisms, pass an Anti-discrimination Bill that penalizes discrimination and harassment on the basis of gender, adopt and implement the UDHR as well as frame guidelines to protect the fundamental rights of third gender by giving them equal protection before law till such time as the legislature to safeguard by protecting third gender from sexual assault.

4. AMID FIERCE PROTESTS, RAJYA SABHA PASSES TWO FARM BILLS The Rajya Sabha, with an aim to bring about liberalization in the farm sector, has passed two bills in the agriculture-related legislation. These legislations were earlier passed in the Lok Sabha. The legislations are the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020, and the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Bill, 2020.The Essential Commodities (Amendment) Bill was passed earlier.

5. NO NEED FOR FRESH NATIONAL DIASTER RELIEF PLAN FOR COVID-19 HOLDS SC) On Supreme Court, a three-judge Bench led by Justice Ashok Bhushan held that there is no need for a fresh national disaster relief plan for COVID 19, and the Minimum standards of relief as issued under the Disaster Management Act Prior to COVID-19 were enough. It also clarified that the Centre will be free to transfer the funds to National Disaster Response Force (NDRF) as it deems appropriate and that individuals are at liberty to donate to NDRF.

6. SC QUASHES NLSIU’S LAW APTITUDE TEST Background: 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 law aspirants. The Petition urged the court to quash the holding of the NLAT. Decision: The Supreme Court quashed the admission of students under the National Law Aptitude Test (NLAT) 2020 conducted by NLSIU. Earlier, the Court had ordered to withhold the results of the NLAT. A 3-judge bench headed by Justice Ashok Bhushan quashed the notice and press release issued by the NLSIU. At this point, all the law aspirants will have to undertake the Common Law Aptitude Test (CLAT).

7. SC URGES GOVERNMENT TO SUPPORT SEX WORKERS The Supreme Court urged the Centre and State governments to make immediate provisions for monetary sustenance, supply of food and basic amenities to sex workers amid the pandemic without insisting on identity documents. An effort should be made to reach out to them during this crisis.

8. MADRAS HC ISSUES GUIDELINES FOR SETTLEMENT OF JUST ACCIDENT COMPENSATION UNDER MV ACT In the case of Manager, United India Insurance Limited vs. Shanmugam and Ors., C.M.A.No.2854 of 2016, the appellant i.e., the Manager of the United India Insurance Limited alleged that Mr. Shanmugam made a false and fraudulent accident claim to receive compensation from the Insurance Company. The learned Counsel for the appellant also stated that the very factum regarding the accident was not even established beyond any pale of doubt and thus the Compensation awarded by the Tribunal to the Respondent should be set aside. After referring various provisions of the Motor Vehicles Act,1988, and precedents, the High Court Bench comprising Justice SM Subramaniam set aside the compensation and issued guidelines to minimize false claims in the matter of settlement of accident claims.

9. UDAIPUR HOTEL CASE The Laxmi Villas Palace Hotel in Udaipur, which is worth Rs. 252 crores, was sold to Bharat Hotels Ltd, a private company for Rs. 7.52 crore which resulted in a loss of Rs. 244 Crore to the exchequer. The Special Court at Jodhpur asked the CBI to file cases against then Minister of disinvestment Arun Shourie and the then Disinvestment Secretary Pradip Baijal. Along with them, the court ordered to register cases against Ashish Guha (who was the financial advisor), valuer Kantilal Karamsey and Jyotsana Suri. They filed a petition before the High Court stating issuance of arrest warrants directly without even providing notice or issuance of summons by the special court would be bad in the eyes of law. Thus, on 23rd September 2020, the Rajasthan HC rapped the CBI court for issuing warrants against them, and on the same day the HC granted interim protection to the former Union Minister Arun Shourie to appear any time before 15/10/2020 considering his age and family circumstances.

10. (MOTOR ACCIDENT COMPENSATION) INSURER NOT LIABLE UNLESS VEHICLE OWNER PROVES THAT HE TOOK REASONABLE CARE TO SEE THAT HIS DRIVER RENEWED DRIVING LICENSE WITHIN TIME: SC (BELI RAM VS. RAJINDER KUMAR) When an employer employs a driver, he has to take reasonable care to see that his employee gets his license renewed within time. The bench comprising Justices Sanjay Kishan Kaul, Aniruddha bose and Krishna Murari observed that, when the driver did not renew his license, the insurance employee cannot be held liable unless the owner proved that he had either checked the driving license or had given instruction to his driver to get his driving license renewed on expiry thereof.

11. HC INITIATES CONTEMPT ACTION AGAINST SCHOOLS: Background: On July 17, Justice Venkatesh directed all schools and colleges in the state to collect only 40% of the fees in the first installment and another 25% immediately after the government permits the institutions to reopen. However, even the order was passed; there were complaints of some school demanding payment of 100% fees. The Madras High Court has initiated suo moto contempt of court proceedings against eight private schools across the state for having violated its July 17 order on collection of fees in installment due to the difficulties faced by the parents during COVID-19 pandemic.

12. HC BRINGS ABOUT SHIFT IN ACCIDENT COMPENSATION CLAIM PROCEDURES: The Madras High Court has directed all the tribunals to treat detailed accident reports uploaded by the police on the Criminal Tracking Network and Systems (CCTNS) portal as claim petitions without waiting for the victims to file such petitions. It pointed out that Section 166(4) of the Motor Vehicles Act of 1988 empowers the tribunals to treat accident reports as an application for compensation but hardly any tribunal invokes the provision.

13. LABOUR BILLS PASSED AMID BOYCOTT: Parliament passes three bills that complete the government’s codification of 29 labour laws into four codes, with the Rajya Sabha passing the Industrial Relations Code, 2020, the Occupational Safety, Health and Working Conditions Code, 2020 and the Social Security Code, 2020.The first of the four codes, the Code of Wages, was passed by parliament in 2019. The passage of Bills would balance the needs of workers, industries and other stakeholders argued the government.

14. VODAFONE WINS RS.20,000 CRORE RETROSPECTIVE TAX CASE AGAINST INDIAN GOVERNMENT IN INTERNATIONAL ARBITRATION: The Permanent Court of Arbitration at Hague ruled that the Indian Government’s tax demand on Vodafone is in breach of the investment treaty agreement between India and Netherlands. Issue: The issue relates to the tax demand of Rs 12,000 crore made by the Income Tax Department from the international telecom giant with respect to its acquisition of the Indian assets of Hutchison Whampoa in 2007. The department contended that though the agreement between Vodafone and Hutch was executed outside India, since it related to assets in India, Vodafone was liable to make tax deduction at source with respect to the consideration paid to Hutch. While the Bombay High Court upheld the tax demand, the Apex Court, in 2012, reversed the verdict and absolved the tax liability of Vodafone. To overcome the decision of the Supreme Court, the Central Government brought an amendment to the Income Tax Act later that year with retrospective effect. Following a fresh tax demand on the basis of the amended law, the Vodafone moved the arbitration tribunal in 2014, invoking the India-Netherlands bilateral investment treaty of 2013. The tribunal, in its ruling, said the government must cease seeking the dues from Vodafone and should also pay over Rs 40 crore to the company as partial compensation for its legal costs.

15. SC DISMISSES THE PLEA TO STOP DISSEMINATION OF INFORMATION OF COVID-19 ON THE BASIS OF RELIGION, CASTE, AND COMMUNITY: The Supreme Court on 25th September, 2020 refused to entertain a plea for issuance of direction to prohibit and stop dissemination of information or date of Corona virus disease or any epidemic on the basis of religious identity, caste and community. The plea states that the medical and public health emergency during the outbreak of a pandemic may cause distress, anxiety and social stigma and therefore escalate prejudices against a particular community which amounts to them being targeted for spreading the novel Corona virus. The petitioner, Advocate Md. Irshad Hanif, stated that disease does not have a religion. There cannot be a Muslim Tuberculosis or Christian Cancer, she added. The petitioner drew reference to the Tablighi Jamaat incident and pointed out that the media, instead of exercising restraint, reported the entire incident with a communal colour with phrases such as Corona Jihad, Corona Terrorism, Islamic Insurrection etc. Further, the plea stated that a number of fake news and videos circulated on different social media platforms, showed Muslims in a bad light. Such reporting has triggered communal antagonism and has perpetrated hate and affected communal harmony. However, the bench of Justices Ashok Bhushan, R Subhash Reddy & MR Shah dismissed the plea.

16. ‘WOMEN HAVE FUNDAMENTAL RIGHT TO CHOOSE THEIR VOCATION’: BOMBAY HIGH COURT RULES THAT PROSTITUTION IS NOT A CRIMINAL OFFENCE UNDER THE LAW The plea before the High Court had challenged an order passed by the Metropolitan Magistrate, Mazgaon under section 17(2) of the Immoral Traffic (Prevention) Act, 1956 which was also upheld by the Additional Sessions Judge, Dindoshi. While observing that prostitution has not been made an offence under Immoral Traffic (Prevention) Act, 1956 and that an adult woman has the right to choose her vocation and cannot be detained without her consent, the Bombay High Court set free 3 sex workers from the Corrective Institution. Background: A trap was laid to catch women traffickers by complainant-Rupesh Ramchandra, Police Constable on the secret information received that a person by name Mr. Nijamuddin Khan, a pimp provides women for prostitution at a guest house in Malad. The accused along with the victims were arrested and taken into custody. The victim (A), (B) and (C) were produced before the Magistrate and the learned Magistrate called for a report from the Probation Officer in respect of antecedents, character and suitability of relatives of the victims for taking their charge and intermediate custody of victims had been given to Navjeevan Mahila Vasti Griha. The Magistrate also directed an NGO called Justice and Care to provide primary education to the victims during their stay in Navjeevan Mahila Vasti Grih. The women reportedly belonged to the Bediya community wherein there was a custom of sending girls for prostitution after they attain puberty. Considering this custom, the women were not handed over to their family because of the apprehension that their families might again send them for prostitution. The Magistrate further directed the women to be sent to Nari Niketan Prayag Vastigruh, Fultabad, Allahabad or to any other state-run institution of Uttar Pradesh for one year for their care and protection and they could also undergo vocational training in the subject of their choice. Holdings of the Court: Considering the relevant provisions of the Immoral Traffic (Prevention) Act, 1956, the Court observed that the victims were not being prosecuted in the case and therefore there was no question of detaining them in custody in Navjeevan Mahila Vastigruha or in any other institution. The court noted that the provisions of the Act, under section 17, empowered the Magistrate to detain the victims for a period of one to three years in a protective home, after passing an order in writing, but it was subjected to pre-requisites. The pre-requisites are that such an order can be passed only after completion of an inquiry conducted by a panel of five members summoned by the Magistrate. Three members of this panel should be women wherever practicable. In this case, no such panel, as required by the law, was conducted. The High Court observed that no provision under the law makes prostitution per se a criminal offence or penalizes a person indulging in it. It further clarified that the law punishes sexual exploitation or abuse of a person for commercial purpose. However, carrying on prostitution in a public place or soliciting or seducing another person is a punishable offence. The court said there was nothing on record to show that the women were seducing for prostitution. The court further observed that Magistrate might have been swayed away because the victims belonged to a particular caste but the victims were major and they had a right to reside at the place of their choice, to move freely throughout the territory of India and to choose their own vocation under the Part III of the Constitution. The court said that the Magistrate should have considered the consent of the victims before ordering their detention in the protective home. The law as clarified the Bombay High Court does not criminalize sex workers and instead, it seeks to protect them. What is prohibited under the law is sexual exploitation for commercial purposes like pimping and also soliciting or seducing in public places. Running brothels or allowing one’s place to run prostitution is also illegal. The law assumes that the persons offering their bodies in exchange for money are victims and not perpetrators. The Immoral Traffic (Prevention) Act, 1956 does not criminalize the act of prostitution itself, but criminalizes the support system that enables and promotes it.


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