What’s New in Law

  • Vinod Jain versus Santokba Durlabhji Memorial Hospital, it was held by the Supreme Court that wrong diagnose does not amount to medical negligence.
    • The State of Gujarat versus Anwar Osman Sumbhaniya, Supreme Court held that confession recorded under TADA (Terrorist and Disruptive Activities) Act, is not admissible in trial for offence under other enactments, especially when the designated court could not take cognizance of the offence under TADA for lack of valid sanction.
      • The State Bank of India versus Ravindra Nath, Supreme Court held that bank employees has no right to be associated with decision making process for fixation of salary. Thereby, striking on arrays of strikes by bank employees in connection to salaries increment. It is the employess who have willfully given their free consent and agreed on the salary offered to them by the bank.
        • Anjali Bharadwaj versus Union of India, held by Supreme Court that Central Information Commissioner should have status of Chief Election Commissioner. Thereby, only bureaucrats should not be selected for the said post.
          • Gagan Kumar versus State of Punjab, held by Supreme Court that it is mandatory legal requirement whether sentences awarded to an accused would run concurrently (all punishments run together) or consecutively (punishments run after the other).
            • Rameshwar Yadav versus State of Bihar, it was held by the Supreme Court that accused cannot be kept in custody for long duration by mere citing “possibility” of sentence of imprisonment.
              • Kross television India Pvt. Ltd. Versus Vikhyat Chithya Production, Supreme Court held that the courts have to change the mode of service of summons in tune with new age technological developments. This judgment can be interpreted in way to use whatsapp for service of summons. However, it can also be supported by Meena prints ltd. Versus Vahini enterprises, Bombay High Court held that, for effective application of Order V Rule 9 of Civil Procedure Code “defendants can be summoned through whatsapp”
                • Federation HAJ PTOS of India versus Union of India, Supreme Court held that it is not within the realm of the courts to go into the issue as to “whether there have been a better policy or not”. Previously also it has been reiterated in Bennett Coleman versus Union of India by Supreme Court that policy decisions are best left at state and courts cannot be propelled into the unchartered ocean of Government policy.
                  • State of M.P versus Kanha, held by Supreme Court that for conviction under section 307 of IPC (Attempt to murder) proof of life threatening hurt or grievous hurt is not an essential requirement.
                    • Britannia Industries Ltd. Versus Bombay Agricultural produce marketing committee, it was held by Supreme Court that “EDIBLE OIL”, “VANASPATI” AND “SUGAR” are within the meaning of “agricultural produce” under Marketing Act.
                      • Mohd. Salim versus Shamsuddin, the Supreme Court held that child born from marriage between muslim man and hindu woman, shall be entitled to claim from his/her father’s property. Such marriage shall be irregular marriage( fasid marriage as per muslim law) and neither void nor valid.
                      • Nawaz versus State, it was held by Supreme Court that it is sufficient to make it fall within the ambit of section 300 exception I of Indian Penal Code, 1860 which embodies the principle of grave and sudden provocation if husband (deceased) termed his wife & daughter as “prostitutes”. They were driven to grave and sudden provocation due to the term “prostitutes” and caused the death of the man.
                      • Navtej Singh Johar & Ors. versus Union of India through Secretary Ministry of Law and Justice is a landmark decision of the Supreme Court of India in 2018 that decriminalised all consensual sex among adults in private, including homosexual sex. The court was asked to determine the constitutionality of Section 377 of the Indian Penal Code, a colonial-era law which among others criminalised homosexual acts as an “unnatural offence”. On 6 September 2018, the court unanimously declared the law unconstitutional “in so far as it criminalises consensual sexual conduct between adults of the same sex”. Portions of Section 377 (Unnatural offences) Indian Penal Code relating to sex with minors, non-consensual sexual acts such as rape, and bestiality remain in force.
                      • Joseph Shine versus Union of India. Supreme Court Struck down section 497(Adultery) Indian Penal Code. A five-judge Constitution bench of the Supreme Court on 27 September 2018 unanimously ruled to scrap Section 497. While reading the judgment, Chief Justice Dipak Misra said, “it(adultery) cannot be a criminal offence,” however it can be a ground for civil issues like divorce.
                      • Indian Young Lawyers Association versus The State Of Kerala Supreme court of India on 28 September, 2018 allowed the entry of women of all ages in sabarimala temple. However, the lone female judge in constitution bench Justice Indu Malhotra dissented.
                      • Common Cause (A Regd. Society) versus union of India. Supreme Court of India held that Right to die with dignity is a fundamental right, also allowed passive euthanasia and living will, and issued guidelines regarding Living will.

                      • Justice K.S. Puttaswamy (retd.) versus Union of India. Supreme Court of India held that Aadhaar cannot be made mandatory for opening of a bank account, mobile connection, school admissions. However, Aadhaar card is mandatory for filing of income tax return.
                      • Shayara Bano versus union of India. Supreme Court of India declared triple talaq (talaq-e-biddat) as unconstitutional.

                      Aadhaar (Amendment) Ordinance, 2019

                      When the Parliament is not in session and it is expedient to formulate the law, then President of India under its legislative power promulgates an ordinance. Promulgation of Aadhaar Amendment ordinance was approved by union cabinet on 28th February 2019, which is in line with bill passed by Lok sabha on 4th January 2019. The amendment will amend following acts:

                      • Aadhar Act, 2016
                      • Prevention of Money Laundering Act, 2005
                      • Indian Telegraph Act, 1885

                      The Supreme Court in case of Justice K.S. Puttaswamy (Retd.) V/S Union of India, held that Right to privacy is fundamental right, thus Aadhaar Act need to be amended to bring it in line with right to privacy. The objective of such ordinance is to make Aadhaar data secure, no denial of benefits of social service schemes due to non availability of Aadhar, where Aadhaar is mandatory.

                      Features of the amendment are as follows:

                      • Use of Aadhaar number with consent of Aadhaar holder, whether physically or electronically.
                      • Use of 12 digit Aadhaar number and its virtual identity to conceal actual Aadhaar number, for data protection.
                      • Option will be available to children to cancel their Aadhaar on attaining majority.
                      • Authentication of Aadhaar data only when such authentication is permitted by state or central government. Such authentication must be in compliance with standards of privacy and security.
                      • Use of Aadhaar for KYC under Indian Telegraph Act, PMLA (Prevention of Money Laundering Act.)
                      • No use of Aadhaar by private entities.
                      • No denial of services due to non availability of Aadhaar or failure of authentication of Aadhaar.
                      • Provides for establishment of UIDAI fund.
                      • Civil penalties, adjudication and provision of appeals for violating provisions of Aadhaar.

                      The Constitution 103rd Amendment Act, 2019

                      • Known as Economic Quota Act.
                      • President of India gave his Assent on 12/01/2019.
                      • Tends to provide reservation of 10% of total seats or vacancies in addition to existing reservation in education and public employment for economically weaker sections.
                      • Following articles has been added after the aforesaid amendment:
                        i. Article 15(6): The state shall make special provision for advancement of economically weaker sections of citizens by providing 10% reservation in addition to existing reservations for admission in educational institutions.
                        ii. Article 16(6): The state shall make provision for reservation of economically weaker sections of citizens in public appointments by providing 10% reservation in addition to existing reservations.
                      • However, “economically weaker sections” meaning is left at the prerogative of the state, which shall be notified by the state from time to time on the basis of family income and other indicators of economic disadvantage.
                      • Since, it is an amendment of the Constitution, it requires ratification by not less than one half of the states. Uttar Pradesh became the third state after Gujarat and Jharkhand to ratify the amendment.
                      • The eligibility criteria to avail such reservation:
                        i. Family income should be less than Rs. 8 lakhs per annum.
                        ii. Farm land should be less than 5 acres.
                        iii. Residential house should be less than 1000sqft.
                        iv. Residential plot should be less than 100 yards in notified municipality.
                        v. In non notified municipality area residential plot should be below 200 yards.

                      The Criminal Law (Amendment) Act, 2018(22 of 2018)

                      • Amends IPC, CRPC, POCSO, IEA
                      • Investigation must be completed within 2 months.
                      • Trial must be completed within 2 months.
                      • Appeal must be disposed off within 6 months.
                      • No provision of anticipatory bail.
                      • Punishment for rape 10 years rigorous imprisonment to life imprisonment.
                      • Punishment for rape less than 12 years: 20 years rigorous imprisonment to life imprisonment plus fine or with death.

                      Muslim Women (Protection of Rights on Marriage) Bill 2018.

                      Commonly known as triple talaq bill passed by Lok Sabha. Bill punishes pronouncement of triple talaq (talaq-e-biddat) imprisonment for 3 years and fine. Cognizance of the offence can be taken only on complaint is lodged by the victim wife or her close blood relatives. Also, the offence will be compoundable at the instance of the wife on such terms and conditions as deemed fit by the Magistrate. The offence is also bailable, and Magistrate can grant bail, but only after hearing the wife. The Bill provides for grant of custody of the minor child to the wife, and also maintenance suitably determined by the Magistrate

                      Fugitive Economics Offenders Bill, 2018.

                      • Was passed by Lok Sabha and Rajya Sabha. The Bill allows for a person to be declared as a fugitive economic offender (FEO) if: (i) an arrest warrant has been issued against him for any specified offences where the value involved is over Rs 100 crore, and (ii) he has left the country and refuses to return to face prosecution.

                      • To declare a person an FEO, an application will be filed in a Special Court (designated under the Prevention of Money-Laundering Act, 2002) containing details of the properties to be confiscated, and any information about the person’s whereabouts. The Special Court will require the person to appear at a specified place at least six weeks from issue of notice. Proceedings will be terminated if the person appears.
                      • The Bill allows authorities to provisionally attach properties of an accused, while the application is pending before the Special Court.

                      • Upon declaration as an FEO, properties of a person may be confiscated and vested in the central government, free of encumbrances (rights and claims in the property). Further, the FEO or any company associated with him may be barred from filing or defending civil claims.