ISSUE-XVI (DECEMBER 14-DECEMBER 20)


VOX IURA MAGAZINE ISSUE 16
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1. CANDIDATES BELONGING TO RESERVED CATEGORIES ELIGIBLE FOR GENERAL CATEGORY VACANCIES BASED ON MERIT: SUPREME COURT

Case Name: Saurav Yadav Vs. State Of Uttar Pradesh [M.A. No.2641 Of 2019 Of Slp (Civil)No. 23223 Of 2018 ]

The Supreme Court has observed that the candidates belonging to reserved category are eligible to fill general/open category vacancies also. The bench comprising Justices Uday Umesh Lalit, S. Ravindra Bhat and Hrishikesh Roy held that this principle should also be followed while filling vacancies in horizontal reservations in open category. The Court has disapproved the view taken by some High Courts that, at the stage of accommodating candidates for effecting horizontal reservation, the candidates from reserved categories can be adjusted only against their own categories under the concerned vertical reservation and not against the "Open or General Category.

2. LANDLORD – TENANT DISPUTES UNDER TRANSFER OF PROPERTY ACT ARBITRABLE EXCEPT WHEN COVERED BY RENT CONTROL LAWS:SC

Case name: Vidya Drolia and Ors v. Durga Trading Corporation

Overruling a full bench decision of the Delhi High Court, the Supreme Court has held that the disputes which are to be adjudicated by the Debt Recovery Tribunal (DRT) under the DRT Act are non-arbitrable. The SC bench comprising of Justices NV Ramana, Sanjiv Khanna and Krishna Murari observed this while overruling the Delhi HC judgment in HDFC Bank Ltd. V. Satpal Singh Bakshi.

In a landmark judgment, the Supreme Court overruled its 2017 judgment in Himangni Enterprises case to hold that landlord-tenant disputes are arbitrable except when they are covered by specific forum created by rent control laws.A three-judge Bench headed by Justice NV Ramana observed, "Landlord-tenant disputes are arbitrable as the Transfer of Property Act does not forbid or foreclose arbitration”.

The judgment laid down a Four-fold test to determine arbitrability:

1. When cause of action and subject matter of the dispute relates to actions in rem, that do not pertain to subordinate rights in personam that arise from rights in rem.

2. when cause of action and subject matter of the dispute affects third party rights; have ergaomnes effect; require centralized adjudication, and mutual adjudication would not be appropriate and enforceable;

3. when cause of action and subject matter of the dispute relates to inalienable sovereign and public interest functions of the State and hence mutual adjudication would be unenforceable; and

4. when the subject-matter of the dispute is expressly or by necessary implication non-arbitrable as permandatory statute(s).

The court also discussed issues relating to the stage when the question of arbitrability can be decided, the scope of examination under section 8 and 11. The court explained that at the stages of section 11 and 8 the courts should undertake a prima facie examination of the validity of arbitration agreement. It held that existence of an arbitration agreement presupposes a valid agreement which would be enforced by the court by relegating parties to arbitration. Since sections 8 and 11 are complementary provisions, the court said that it can read the mandate of valid arbitration agreement in section 8 into mandate section 11 that is existence of arbitration agreement.

3. COURT CANNOT ALTER PRESIDENTIAL ORDER ON SCHEDULED TRIBES: SC REVERSES BOMBAY HC JUDGMENT DECLARING 'GOWARI' AS ST

Case name: State of Maharashtra v. Keshao Vishwanath Sonone (Civil Appeal No. 4096 of 2020)

The Supreme Court has held that a High Court cannot look into the evidences to find out and decide that a particular tribe is part of Scheduled Tribe which is included in the Constitution (Scheduled Tribes) Order, 1950. The caste 'Gowari' and 'GondGowari' are two distinct and separate castes, the bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah observed while it set aside the Bombay High Court that had held that the Gowari community cannot be denied benefits of a Scheduled Tribe status.

4. DIRECTIONS ISSUED BY SC TO STATES/UTS FOR EDUCATION OF CHILDREN IN CHILD CARE INSTITUTIONS

The SC bench comprising Justices L Nageswara Rao, Hemant Gupta and Ajay Rastogi passed a slew of directions to States/ Union Territories to cater to the educational needs of children in Child Care Institutions (CCI) and children who have been restored to families from CCIs in the suo moto case “In Re Contagion of COVID 19 Virus in Children Protection Homes” after accepting the suggestions made by amicus curiae Advocate GauravAgarwal.

The following are some of the important directions:-

1. To provide necessary infrastructure, books, stationary, printers for online classes on the basis of recommendations made by the District Child Care Protection Units (DCPU).

2. State Governments shall ensure that required number of teachers are also made available for teaching the children in various CCIs.

3. Extra classes, if necessary, should also be taken for the children to help them for exam preparations.

4. The District Legal Services Authorities shall be informed by the DCPUs about the progress made in the infrastructure and the functioning of online classes.

5. Assessment of children who have been restored should also be done by the DCPUs.


5. FARMERS HAVE CONSTITUTIONAL RIGHT TO CONTINUE WITH PROTEST: SC

The Supreme Court on Thursday said farmers have a constitutional right to continue with their “absolutely perfect” protest as long as their dissent against the three controversial agricultural laws did not slip into violence.

We clarify that this court will not interfere with the protest in question. Indeed the right to protest is part of a fundamental right and can as a matter of fact, be exercised subject to public order. There can certainly be no impediment in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens... We are of the view at this stage that the farmers’ protest should be allowed to continue without impediment and without any breach of peace either by the protesters or the police”, a Bench led by Chief Justice of India Sharad A. Bobde observed in its order.

The court, however, said the purpose of the protesting farmers would not be served if they continued to sit without engaging in talks.

“Yes, there is a protest that is going on... Yes, the protest is constitutional as long as it does not damage property and lives. It is an absolutely perfect protest. But their [farmers’ purpose cannot be realised if they continue to sit without talking”, the CJI observed.

Panel Formation

The court reiterated its suggestion of forming an “impartial and independent committee” of experts in agriculture to hear both farmers and the Union government on the laws.

“If their [farmers] protest has a purpose other than just to sit in protest, we are thinking of an independent committee before whom both sides can state their case while the protest goes on... The committee can give its opinion after hearing them. We expect parties [farmers and government] to follow the committee's opinion. Meanwhile, the protest will continue without causing violence or damage on both sides”, Chief Justice Bobde suggested

6. SC ISSUES NOTICE “WITH CAUTION” ON PILs FOR UNIFORM LAW FOR DIVORCE MAINTENANCE AND ALIMONY

Senor Advocate Ms. Anand representing petitioner Aswini Kumar Upadhyay that the personal laws and religious practices are discriminatory under Article 14, 15 and 44 of the Constitution as well as other rights conferred under International Instruments. The plea seeks directions on Ministry of Home Affairs, Ministry of Law and Justice and Ministry of Women and Child Development. A three judge Bench of the Supreme Court issued notice on two Public Interest Litigations in this regard.

7. SC FINDS HC ORDER ON A.P. GOVT. ‘DISTURBING’

Context: The Supreme Court termed interim order passed by the Andhra Pradesh High Court as disturbing and stayed the order.

Details: The unprecedented order of the High Court came while deciding habeas corpus petitions filed by relatives of persons remanded in judicial custody or out on bail.The Andhra Pradesh High Court order intended to embark on a judicial inquiry.The High Court had suo moto summoned the State counsel to assist it in deciding whether, in circumstances prevailing in the State of Andhra Pradesh, the court can record a finding that there is a constitutional breakdown in the State or not. The interim order had sought the assistance of the state government asking whether it can record a finding that constitutional machinery has broken down there, requiring a declaration of President’s rule.

Petition against the order: The petition by the AP government contended that the constitutional courts do not have any judicially discoverable and manageable standards to determine if there has been a constitutional breakdown. The government said the High Court’s observation violated the Basic Structure doctrine of the Constitution. It said that the HC order is a serious encroachment on the powers of the executive as enumerated in the Constitution and thus violative of the doctrine of separation of powers. It argued that it is Article 356 that deals with the failure of constitutional machinery in a State and the power [to impose President’s rule] exclusively vests in the Executive. The power in this regard, like sending a report either to the Hon’ble President or to the Hon’ble Governor or to record a finding in that regard, cannot be exercised by the judiciary.

8. SUPREME COURT ISSUES NOTICE TO CENTRE, STATES ON PLEA AGAINST MINING IN DENSELY-FORESTED, ECO-SENSITIVE AREAS

The Supreme Court on 14.12.20 issued notice to various States and the Union on a PIL against mining in densely- forested and eco-sensitive areas of the Country.

The plea challenges the Union of India's decision to allot different coal blocks by way of auction and allotment, situated in densely forested areas of the different states whereas less forested coal blocks are available in abundance. It is alleged that the said act is being done in contravention of the principles of the sustainable development and the precautionary principle since only 15% of the Indian coal deposit lies beneath the densely forested areas and the remaining 85% can fulfill even the enhanced demand of the coal for the coming 50 to 70 years. The petitioner has approached the Supreme Court seeking inter alia deallocation of all coal block situated in the densely forested areas which were categorised as 'NO-GO' in 2010. Besides, he seeks a direction to the Union of India for proper inventory of coal and all other major mineral deposits on the basis of their environmental value and for the same, the exercise of the Violate and Inviolate Area identification and subsequent notification of the same as ESA zone be completed in a time bound manner. The petition also seeks a direction by which no mineral blocks should be allotted or auctioned without prior forest and environmental clearance. "A guideline is required to be framed for consideration of the forest and environment in these cases like any other development projects where alternatives were required to be studied in terms of rule 7(2)(c) of the Forest Conservation Rules and EIA notification 2006", it is sought.

9. "ICC CAN'T COMMENT ON PERSONAL CONDUCT OF PARTIES": DELHI HIGH COURT SHUNS MORAL POLICING BY INTERNAL COMMITTEE IN CASES OF SEXUAL HARASSMENT AT WORKPLACE

Case Name: Bibha Pandey v. Punjab National Bank &ors.,

In Bibha Pandey v. Punjab National Bank &Ors., The Delhi High Court in a progressive judgment delivered on a writ petition filed by a female employee of Punjab National Bank has held that the jurisdiction of Internal Complaints Committee (ICC) established under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, is limited to allegations of sexual harassment and whether a complaint is made out or not, to that effect. The ICC "cannot make comments on the personal conduct of the parties”. Background of the Case

The Court was hearing a writ petition preferred by a female employee of Punjab National Bank against the General Manager of the bank in Mumbai. Upon her complaint, the ICC was constituted by the Bank, consisting of 4 members, which concluded that the relationship between the parties was based on mutual consent, and that the allegations of sexual, emotional and mental harassment had not been substantiated by the employee. Thus, while the complaint against the Manager was rejected, the ICC did not stop there but went on to make observations that the "behavior of the parties had been inappropriate and unbecoming of Officers/Employees" and therefore, it "recommended the Competent Authority to take suitable action" against both the employee and the General Manager.

10. RIGHT TO PROGENY AND TERMINATION THEREOF IS A FUNDAMENTAL RIGHT UNDER ARTICLE 21: ORISSA HIGH COURT

While permitting a rape victim to terminate her pregnancy after 20 weeks of gestation, the Orissa High Court held that right to progeny and termination thereof is a fundamental right enshrined under Article 21 of the Constitution of India. Reliance was placed on MeeraSantosh Pal v. Union of India, (2017) 3 SCC 462, where the Supreme Court held that women's right to make reproductive choice is also a dimension of personal liberty as understood under Article-21 of the Constitution.

11. HIGH COURT NOTICE TO UTTAR PRADESH ON CONVERSION LAW

Context: The Allahabad High Court has issued a notice to the U.P. government on a PIL petition challenging the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020.

Background: Recently, the Uttar Pradesh government promulgated an ordinance seeking the prohibition of unlawful religious conversions.

Details: The petitioner, of Prayagraj, prayed for declaring the ordinance ultra vires, saying it was “both morally and constitutionally repugnant”. The PIL plea also prayed for an interim direction to the government not to take any coercive action in cases of conversion by marriage or for the purpose thereof. The provisions that gave the state policing powers over a citizen’s choice of life partner or religion militate against the fundamental rights to individual autonomy, privacy, human dignity and personal liberty guaranteed under Article 21 of the Constitution, the petitioner submitted.


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