ISSUE XII (NOVEMBER 16-NOVEMBER 22)



ISSUE 12 VOX IURA MAGAZINE
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1. Scope Of Art.15(3) Much Wider Than Art.16(4): Cat Upholds 80% Reservation For Women Nurses In Aiims

Name of the case: Ranveer Singh &Anr. v. Union of India &Ors.

The Principal Bench of the Central Administrative Tribunal at Delhi, while dismissing two pleas against ‘gender-based reservation’, has upheld 80% reservation for women in nursing officer posts. The primary contention of the applicants, aspirants for the post of nursing officer, was that the provision granting 80% reservation to females was against the mandate of Indra Sawhney v. Union of India (1992 Supp. 3 SCC 217), whereby 50% upper limit was set on reservations. The plea further added that the Central Institute Body (CIB) which had prescribed such reservation is not a competent body.

Addressing the first issue raised by the applicants, the tribunal said:

“The reservation of 80% posts of nursing officer for female, as notified, is considered to be a special provision for women candidate under Article 15(3) of the Constitution as a separate classification”. The Bench relying on the precedents including PB Vijay Kumar decision, observed that the scope of Art. 15(3) is much wider, as compared to that of Article 16(4), which is limited to only community-based reservation in public employment for candidates belonging to SC/ST/OBC, therefore, such a reservation is held to be valid. While ruling so, the Tribunal was also in agreement with the decisions rendered by CAT, Patna and the Patna High Court whereby gender-based reservation in recruitment of Nursing Officers for AIIMS Patna was upheld.

So far as the competency of the CIB to prescribe reservations to the posts in AIIMS is concerned, the Tribunal said,

“The CIB is functioning under the Chairmanship of Hon’ble Minister of Health and Family Welfare and is represented by other experts from diverse walks of life out of whom majority are from the medical field. The statutory powers are drawn from the relevant Act (AIIMS Act, 1956) read with subsequent amendments and the OMs issued on 12.1.2018 and 28.06.2018. Paras-3 and 9 specify that Empowered Committee which was re-designated as CIB, can take a policy decision in respect of the issues pertaining to Human Resources (HR), establishment and personal matters, namely, recruitment issue etc.” Therefore, the contention of the applicants that CIB is incompetent was not accepted by the Bench.

2. Default Bail If Probe Not Over In Time: Sc

Name of the case: M. Ravindran v. The Intelligence Officer, Criminal Appeal No. 699 of 2020

The Supreme Court bench led by Justice U.U. Lalit held that an accused should be granted ‘default’ or ‘compulsive’ bail, irrespective of the merits of the case against him, if the investigating agency could not be able to complete the probe within a prescribed time limit. The accused has this indefeasible right to default bail under section 167 (2) of the CrPC. Under this section, an accused can be detained for a maximum of 90 days for a crime punishable with death, life imprisonment or a sentence of over 10 years, and it is 60 days of detention for any other offence. This time limit prohibits investigating agencies from keeping people behind bars indefinitely. The Apex Court also held that it is the duty of the Magistrates to mandatorily inform the accused of their statutory right to apply for default bail.

3. Anticipatory Bail Application Not Maintainable By A Person Who Apprehends Arrest After Cancellation Of Regular Bail: Sc

Name of the case: Manish Jain v. Haryana Pollution Control Board

Held: A bench comprising of Justices Navin Sinha and K M Joseph held that a person released on bail remains in the constructive custody of law and a person in custody cannot seek anticipatory bail.

4. To Invoke Section 17 Limitation Act, Existence And Discovery Of Fraud Has To Be Proved: Sc

Name of the case: Rattan Singh v. Nirmal Gill

Section 17 Of Limitation Act 1963: it deals with the effect of fraud on limitation period for instituting a suit. When the suit is based on the fraud of the defendant, the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud.

Held: A bench comprising of justices A M Khanwilkar and Dinesh Maheshwari observed that for invoking section 17 of Limitation Act the two ingredients namely existence of fraud and discovery of such fraud has to be pleaded and proved.

5. Bihar Elections: Plea In Sc Seeks Contempt Against Cec, Political Parties For Alleged Failure To Publish Criminal Antecedents Of Candidates

A contempt petition has been filed in the Supreme Court seeking contempt action against the Chief Election Commissioner Sunil Arora and Bihar’s Election Commission Officer for failing to comply with the Top Court’s Order February 12, 2020 which had directed all Political parties to publish details of criminal antecedents of their candidates in LokSabha& Assembly polls within 48 hours of selection of the candidate or within two weeks of nomination, whichever is earlier.

6. Supreme Court Refuses To Lift Stay On Release Of Amitabh Bachchan Starrer “ Jhund”

The Supreme Court on 18/11/2020 refused to lift the stay imposed by the Civil Court as well as the Telangana High Court on the release of the movie “JHUND” which stars Bollywood actor Amitabh Bachchan. It was contended in the appeal that the movie was inspired by the real story of the football coach, Vijay Barse, “who spotted a group of slum children playing football. It is stated that, under the coaching of Barse, the children “melded into a great football team that went to represent India at the ‘homeless World Cup’ held in Rio de Janerio, Brazil. The injunction has been granted on the release of the film by the trial court that it infringes the copyright in the life story of Mr. Paul (the team captain).

7. Delhi High Court Issues Notice To Centre On Plea To Recognise Same-Sex Marriages Under Law

The Delhi High Court on Thursday issued notice to the Centre on a petition seeking a direction to the government to recognise same-sex marriages under the Hindu Marriage Act (HMA) and the Special Marriage Act (SMA).A Bench comprising of Justices Rajiv SahaiEndlaw and AshaMenon asked the Centre to submit its response within four weeks and listed the case for hearing along with other two petitions seeking similar relief.

The petition was filed by members of the lesbian, gay, bisexual and transgender (LGBT) community and activists AbhijitIyerMitra, Gopi Shankar M., GitiThadani and G. Oorvasi.

The plea argued that the Supreme Court had in 2018 decriminalised consensual homosexual sex in India. It added that there was nothing in the HMA that mandated that marriage should take place only between a Hindu man and a Hindu woman.

Section 5 of the HMA clearly lays down that marriage can be performed between ‘any two Hindus’ under the Act,” the plea said.

While there is no statutory bar under the HMA and the SMA against gay marriages, they were not being registered throughout the country. “As a result of the same, there are many benefits that would otherwise be available to heterosexual married couples that are not available to them,” the plea said.

The plea argued that the prohibition of marriage of LGBT people on the basis of sexual orientation and gender identity was an absolute discrimination towards them and also violative of the right to equality as granted by the Constitution.

Naming various countries such as the U.S., Australia, Germany, Canada, Spain, South Africa, Brazil, and England, where same-sex marriages are legal, the plea said, “right to marry is a part of ‘right to life’ under Article 21 of the Constitution”.

Apart from this petition, the High Court is also seized of two more petitions on a similar issue. One of two petitions is filed by two women living as a couple for eight years. As they lived together and shared the highs, lows and joys and sorrows of life, the couple sought a direction to the Sub-Divisional Magistrate Kalkaji here to register their marriage under the SMA.

The other plea has been moved by two men, who got married in the U.S., but their marriage registration was denied under the Foreign Marriage Act (FMA) as it excluded same-sex marriages.

8. Seriousness Of Crime Not A Ground To Deny Premature Release To Life Convict: Bombay High Court

Name of the case: Mr.Dilip S. Shetye v. State Sentence Review Board &Ors

The Petitioner is a convicted prisoner for an offence under section 302 of IPC. He was sentenced to life imprisonment and payment of a fine of Rs.5000/- and in default to suffer rigorous imprisonment for 6 months. As on 31.07.2020, the petitioner has completed almost 25 years of imprisonment including 19 years 7 months and 22 days of actual imprisonment and remission of 5 years 4 months and 5 days. On not less than 7 occasions, the State Sentence Review Board rejected the petitioner’s case for premature release, on the grounds that

i. the petitioner committed a serious offence,

ii. The Superintendent of Police (North Goa) has not recommended the case for premature release as it would cause damages to the life and property of witnesses or family members of the victim.

The HC relying upon the precedent Sangeet and Another v. State of Haryana and also provisions of section 432(2) of Cr.P.C called for a report from the Sessions Judge. The Sessions Judge in his report submitted that 19 years of imprisonment is sufficient and taking into consideration the reformative element of sentencing, the petitioner's case can be considered for premature release. Upon the recommendation made by the Session Judge, the HC set aside the orders refusing to release the petitioner and directed the petitioner to be prematurely released subjecting to certain restrictions.

9. Providing Information Regarding Ongoing Investigation To Its Informer Is Inappropriate, Injurious: Delhi High Court

Name of the case: Principal Director, Income Tax (Investigation-2) v. Rajiv Yaduvanshi & Ors.

Background: A tax evasion petition was filed by Rajiv Yadhuvanshi before the investigation unit of the Income Tax Department against Vandhana Sodhi and Sandeep Sumbly. Upon receiving the above-mentioned petition, the same was marked to the Deputy Director of Income Tax, Investigation Unit 8(4) on 27.07.2020. Thereafter, the Department commenced the proceedings.

On 23.09.2020, Rajiv Yadhuvanshi filed an “Application for calling Status Report” before the Ld. Additional Chief Metropolitan Magistrate (ACMM). Since the previous PDIT was transferred, the new incumbent PDIT instructed the applicant that he did not receive official order from any court thus the present application is not maintainable. After perusing the contentions of the parties an order was passed by the Ld. ACMM on 28.10.2020 giving an opportunity to complainant department/ concerned PDIT to file a status report in compliance with previous orders passed by this court. The learned Counsel on behalf of Rajiv Yadhuvanshi accepted the notice and filed an application before the court to know the status of the investigation and submitted that the petitioner department has the duty to comply with the directions passes by ACMM. But the counsel appearing on behalf of the petitioner submitted that the order passed by the Ld. ACMM was passed without any jurisdiction as no provision of the Cr.P.C gives such power to the learned ACMM.

Held: The Delhi High Court opined that the application filed by Rajiv before the Ld. ACMM was without the provisions of either Cr.P.C or Income Tax Act and so the orders passed in such versions by the learned judge are also illegal, perverse and without jurisdiction. Furthermore, relying upon the precedent S.K. Agarwalla v. Directorate General of Central Excise Intelligence (2008) the HC held that providing information regarding an ongoing investigation to its informer is not only inappropriate but also injurious to the ongoing investigation.

10. Hc Slams Govt. For Not Setting Up Planning Committees:

The Madras High Court criticised the State Government for going on a "spree" declaring almost all district headquarters as municipal corporations but failing to fulfill the constitutional as well as statutory obligation of constituting Metropolitan Planning Committees (MPCs) essential for a planned development. The Court expressed displeasure over the speed with which the government was declaring every other district headquarters as Municipal Corporation without creating the requisite infrastructure. Article 243ZE requiring constitution of committees for metropolitan planning was inserted through the 74th amendment in 1992.

11. Delhi Hc Restrains A Bakery From Using The Mark ‘Facebake’ In A Trademark Suit Filed By Facebook:

Name of the case: Facebook, Inc v. Mr.Noufel Malol

In this case, the defendant was engaged in a business of selling confectioneries such as cakes, biscuits, cookies and articles such as watches under the mark “FACEBAKE” and to promote his business he was also operating a website www.facebake.in. Mr. Pravin Anand appearing on behalf of the plaintiff contended that the use of the mark “FACEBAKE” has degraded the plaintiff’s trademark “FACEBOOK” and also caused confusion in the minds of the public at large. The Delhi High Court opined that if interim relief is not granted, the plaintiff’s legal rights and business interests will be impacted and therefore restrained the defendant, his agents and employees from using the mark “FACEBAKE” or any other mark which is similar to the plaintiff’s trademark.

















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