ISSUE–V (SEPTEMBER 28 – OCTOBER 4)

Updated: Oct 5, 2020


VOX IURA MAGAZINE- ISSUE 5
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1. RAPE - MISCONCEPTION OF FACT ABOUT PROMISE TO MARRY HAS TO BE IN PROXIMITY OF TIME TO THE OCCURRENCE: SC


Name of the Case: Maheshwar Tigga Vs. The State of Jharkhand, has acquitted a man accused of raping a woman on the pretext of marriage


Background: The Prosecutrix has filed a petition alleging that the accused has promised to marry her and, on that pretext, continued to establish physical relations with her as husband and wife. It was also alleged that she had also stayed at his house for fifteen days during which he established physical relations with her. The trial Court convicted him under Section 376, 323 and 341 of the Indian Penal Code. The Karnataka HC dismissed the Appeal.


Held: The Supreme Court in the appeal said that Sec. 375 would apply only if the accused intentionally made a fraudulent misrepresentation from the very inception and the prosecutrix gave her consent on a misconception of fact. It also observed that Under Sec.90 of IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. In this context, it held that the consent by the prosecutrix was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The SC acquitted the accused.


2. SC REFUSES TO ENTERTAIN PIL SEEKING SCRAPPING OF TRAI'S NEW DIRECTIVES ON COMMERCIAL SMSES & CALLS

The Supreme Court on 28.09.2020 refused to hear a PIL challenging Telecom Regulatory Authority's (TRAI) latest directive on commercial SMSe's. The SC declined to entertain the petition filed on behalf of Advocate Reepak Kansal, averring that the latest directive violated citizens' fundamental right to privacy by creating a mega database of user preferences and promulgates consent and content of SMS received on a mobile number by sharing the data across multiples business entities. Since the Delhi High Court was already dealing with this issue, the SC found it not fit to intervene in that.


3. NO INHERENT RIGHT TO COMPASSIONATE APPOINTMENT: SC


Name of the case: State of Madhya Pradesh & Ors v. Amit Shrivas the Supreme Court reemphasized that there is no inherent right to compassionate appointment.


Background: Late Shri Ranglal Shrivas worked from 6.6.1984 - 11.12.2009, for almost 23 years and was made permanent on 12.03.1987. On the demise of his father, the respondent filed an application seeking the benefit of a compassionate appointment. The plea was rejected based on the Policy in force for compassionate appointment issued by the General Administration Department Ministry, Madhya Pradesh Government dated 18.08.2008. This policy states that if a Government employee at the time of his demise earns his/her salary from the work-charge/contingency fund then a compassionate appointment will not be granted. Relying on Clause 12.1 of the policy, the nominated dependent of the employee’s family was given a compassionate grant of Rs. 1,00,000/-


Madhya Pradesh High Court: Aggrieved by the order the respondent filed a writ petition before the High Court of Madhya and relied upon Rule2(c) of the Madhya Pradesh Pension Rules, 1979 which stipulates that any contingency paid employee or work-charged employee can be regarded as a permanent employee if he/she has completed 15 years of service. Relying upon precedent, the learned judge of the High Court allowed the writ petition and the appellants (State of Madhya Pradesh) were directed to consider the case of the respondent for compassionate appointment in terms thereof.


Supreme Court: In the appeal filed by the State, the respondent submitted that his late father was a permanent employee on account of having worked for more than 15 years and the consequent regularisation of his service. However, the bench referred to Ram Naresh Rawat v. Ashwini Ray & Ors, which held that a ‘permanent’ classification does not amount to regularisation. Considering subsequent circulars and invoking powers under Article 142 of the Indian Constitution the bench increased the compassionate grant amount from Rs. 1,00,000/- to Rs. 2,00,000/- to the claimant. The Supreme Court reemphasized that there is no inherent right to compassionate appointment.


4. BASIS FOR REFUSING PREMATURE RELEASE


Name of the case: Satish @ Sabbe v. The State of Uttar Pradesh


Background: The judgement came in a plea made by two prisoners who have been incarcerated for a botched kidnapping for ransom case in Uttar Pradesh.

The Supreme Court while hearing a Special Leave Petition observed that the length of the sentence or the gravity of the offence cannot be the sole basis for refusing premature release. The three-judge bench of Justices N.V. Ramana, Surya Kant and Hrishikesh Roy said an assessment of the proclivity to commit a crime upon release “must be based on antecedents as well as the conduct of the prisoner while in jail, and not merely on his age or apprehensions of the victims and the witnesses”. The SC observed that the first-time offenders should especially be given a second chance at life.


5. HATHRAS GANG RAPE CASE.

A 19-year-old Dalit woman was abducted and gang raped by four upper caste men on September 14and she was brutally tortured by breaking her spine and cutting her tongue. She passed away on 29th September. She was cremated by the police officials in the middle of the night without the consent of her family. A plea has been filed before the Supreme Court for investigation into the rape and murder of the girl either by the Central Bureau of Investigation or a special investigation team.


6. NOT NECESSARY THAT ACCUSED MUST BE ACTIVELY INVOLVED IN PHYSICAL ACTIVITY OF ASSAULT TO CONVICT HIM ON THE GROUND OF COMMON INTENTION.

The Supreme Court was considering an appeal filed by three accused convicted in a murder case. One of the accused contended that he cannot be said to have shared any common intention with the other accused who are liable for their individual acts. The Court held that it is not necessary that accused must be actively involved in physical activity of assault to convict him on the ground of common intention. A common intention to bring about a particular result may also develop on the spot as between a number of persons deducible from the facts and circumstances of a particular case the Court observed.


7. SC QUASHES GUJARAT GOVERNMENT’S NOTIFICATION ON EXTENDING WORKING HOURS


Background: The notification was issued by the Gujarat Government on April 17 which exempted all factories from the applicability of Section 51, 54, 55 , 56 and 59 of the Factories Act that deals with fixing 48 hour weekly work hours, 9 hour daily work hours and overtime allowances.


What are the changes in the particular legislation?

· The notification increased the daily limit of working hours from 9 to 12 hours;

· weekly work hours from 48 to 72 hours which means 12 hours work on 6 days of the week;

· negated the spread over of the time at work including rest hours which is typically 10.5 hours;

· enable an interval of rest every 6 hours as opposed to 5 hours; and

· diluted the condition to pay overtime wages at double the rate of ordinary wages by stating that overtime wage need only be a proportionate rate to ordinary wages.


Contention of the State Government (Gujarat): They contended that the State Government is having power to issue this notification under Section 5 of the Factories Act on the ground of “Public Emergency”


Supreme Court’s Decision: The bench headed by Justice DY Chandrachud rejected the argument of the state and held that the “Public Emergency” under section 5 of the Factories Act means the situations affecting the security of the state due to external aggression or internal disturbance. The court further held that this economic slowdown due to COVID 19 pandemic does not qualify to be an internal disturbance.

The SC quashed the notification.


8. ADVOCATES WHO ACTS PROFESSTIONALLY AS PER CLIENT’S INSTRUCTION CANNOT BE MADE CRIMINALLY LIABLE FOR DEFAMATION; RULES THE MADRAS HC


Name of the case- M.L. Ganesh v. CA V. Venkata Siva Kumar


Background: A lawyer filed an application on behalf of the committee of Creditors to remove the complainant and seeking appointment of another resolution professional under section 27 of the IBC before the NCLT, Chennai. A criminal defamation suit was filed against the lawyer and the committee of creditors.


Decision: The Madras HC held that advocates who acts professionally as per client’s instruction cannot be made criminally liable for defamation.



9. CRIMINAL CASES CANNOT BE TRANSFERRED ON THE GROUND OF LACK OF TERRITORIAL JURISDICTION EVEN BEFORE EVIDENCE IS MARSHALLED: SC

The Supreme Court has observed that transfer of criminal cases cannot be ordered under Section 406 of the Code of Criminal Procedure on the ground of lack of territorial jurisdiction even before evidence is marshalled.

It observed

(i) that the issue of jurisdiction of a court to try an “Offence” or “offender” as well as the issue of territorial jurisdiction, depend upon facts established through evidence

(ii) that if the issue is one of the territorial jurisdiction, the same has to be decided with respect to the various rules enunciated in sections 177 to 184 of the code and

(iii) that these questions may have to be raised before the court trying the offence and such court is consider to bound the same.


10. INTENTION TO ABET SUICIDE CANNOT BE ASSUMED:SC


Background: An appeal was filed by Gurchran Singh, who was convicted of abetting the suicide of his wife 22 years ago in Punjab. The trial court found him guilty saying that the woman was pushed into taking her own life when her hopes for a happy relationship were dashed by his wilful neglect. However, there was no direct evidence of any cruelty on his part towards her. The High Court agreed with the trial court, saying that the death was a cause of the “circumstances and atmosphere” at home. In Supreme Court Singh argued about the complete lack of evidence to show that he had instigated or intentionally aided his wife to take her own life. The court set aside his conviction.


Held: The court held that the intention to abet suicide cannot be assumed and it needs to be backed by solid, visible proof. The three-judge bench of Justices N.V. Ramana, Surya Kant and Hrishikesh Roy said every crime should be backed by a state of mind or mens rea. The police have to establish that an accused wanted to abet the suicide and it cannot assume the intention of the abettor of a suicide. It has to be evident, it held.


11. KARNATAKA HC STRIKES DOWN 25% DOMICILE RESERVATION IN NLSIU, BANGALORE:

In March, the Karnataka cabinet approved an amendment in the National Law School of India Act, 1986 and gave 25% domicile reservation in NLSIU for students of Karnataka. Three writ petitions were connected together since these writ petitions raised the same contention i.e., to declare that the National Law School of India (Amendment) Act, 2020 as illegal, unconstitutional and ultra vires. The State government submitted that the object of the reservation was to retain talent in Karnataka. Rejecting the same, the bench held the amendment as ultra vires to the parent act and further stated that there is no reservation quota in NLSIU since it is on par with AIIMS, IIT and IIM.


12. MOST SIGNIFICANT CONSIDERATION IN CHILD CUSTODY IS THE WELFARE OF THE CHILD: REITERATES SC

The most significant consideration while issuing a writ of habeas corpus in relation to minor child custody matter is the welfare of the child, the Supreme Court reiterates in the case of Nilanjan Bhattacharya v. State of Karnataka (Civil Appeal No.3284 of 2020).


Background & Holdings: The Apex Court was considering an appeal filed by a father against the conditions which were imposed by the High Court while allowing him to take the child back to U.S.A. While considering the appeal, the bench comprising of Justices DY Chandrachud, Indu Malhotra, and KM Joseph observed that in a catena of recent decisions passed by the Apex Court, it has been held that when confronted with a habeas corpus petition, the existence of an order of the foreign court is one circumstance which is borne in mind by the Court. The Court will have regard to whether the lawful custody of one of the spouses has been disturbed by the other. The most significant consideration is the welfare of the child. Taking note of the facts of the case, the bench concluded that the welfare of the child would be best served if the child is accompanying his father to the United States as the child was born in US and is a citizen of US by birth. The bench while setting aside the conditions imposed by the High Court, issued certain directions and also recorded the undertaking by the father that he shall comply with the regulations for facilitating travel between India and US on the date of travel.


13. CLAT 2020 IS ERRONEOUS, FAULTY, DEFECTIVE AND DISCRIMINATORY: PLEA IN SC SEEKS CLAT RETEST

A writ petition has been filed in Supreme Court seeking a direction to National Law School Consortium to re-conduct the Common Law Admission Test 2020 (Lavanya Bhatt v. Consortium of National Law Universities & Others).


Submissions: The petition filed by five CLAT 2020 aspirants submitted that “CLAT 2020” is erroneous, faulty, defective, discriminatory and violative of Article 14 & 15 of the Constitution. The petitioners submitted that some students belong to non-English background, therefore, such a debauched focus on English reading and comprehensive skill have a disproportionate impact on these students which clearly renders CLAT 2020 discriminatory; and on this ground alone, the exam ought to be quashed as arbitrary and violative of Article 14. It was also contended that many questions in CLAT 2020 were formed in such a way that all four options were not the actual answers according to the questions, further, wrong answers were provided in the answer key for several questions. Apart from that, many questions had more than one right answer so instead of choosing correct answers the candidates were trying to guess “most appropriate” option. Several other questions were of such a standard that even seasoned practicing lawyers would need to do extensive legal research before attempting to answer them, and even after such research no objective answer could be given to these questions. These questions were based on opinion rather than based upon study and knowledge hence should not have been included in such “objective” type examination. For the above-said grounds, the plea seeks to declare CLAT 2020 erroneous and discriminatory.



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