What’s New in Law
- Poonam Bai V/S The State of Chhattisgarh held by Supreme Court on 01/05/2019 that, dying declaration is not invalid merely because it has not been certified by the doctor. Declarant’s medical certificate is only a rule of prudence in accepting dying declaration. Real test of Dying Declaration is: (a) Voluntarily (b) Truthful.
- Rashmi Chopra V/S The State of Uttar Pradesh it was held by Supreme Court on 30/04/2019 that, complaint under section 498A Indian Penal Code can also be filed by the father of the victim. Complaint shall not be deemed invalid merely because it was not filed by the victim of section 498A of IPC.
- Rajbir Surajbhan Singh V/S The Chairman Institute of Banking Personnel Selection (IBPS) it was held by Supreme Court on 30/04/2019 that, IBPS is not a “state” under article 12 of Constitution of India, thus not amenable to writ jurisdiction of High Court or Supreme Court. Conducting recruitment exam for appointment in bank is not public duty.
- Hindustan sanitary ware & industries ltd. V/S The State of Haryana, Hindustan sanitary ware &industries ltd. V/S The State of Haryana, it was held by Supreme Court on 01/05/2019 that, categorization of unskilled labour as semi skilled labour and semi skilled labour as skilled labour is out of the purview of Government’s jurisdiction.
- N. Ramamurthy V/S Sate by Central Bureau of Investigation (C.B.I) it was held by Supreme Court on 26/04/2019 that, legal principles governing suspension of conviction cannot be applied to suspend the sentence.
- Subramaniam K Ansari V/S CPIO Dy. Commissioner of Income Tax it was held by Central Information Commission on 18/04/2019 that, employee is entitled to know about financial status of its employer-company under RTI.
- Razaak K Haider V/s Central Public Information Officer, Election Commission of India, Held by Central Information Commission on 12/02/2019, that Electronic voting machine(EVM) is an “information” under section 2(f) of Right to Information Act, 2005. Thus, RTI for seeking EVM can be filed however, the software in EVM is a copyright and it cannot be given as part of information.
- Rasiklal S. Mardia V/s Amar Dye Chem & others, Held by National Company Appellate Law Tribunal (NCALT) on 16/04/2019 that, shareholders can file application to approve settlement with creditors even after appointment of official liquidator.
- Ramswaroop Soni V/s State of Madhya Pradesh, it was held by Supreme Court on 08/04/2019, that Magistrate on receipt of closure report cannot direct police official to file charge sheet. Any such direction will be wholly unsustainable. However, magistrate have following discretions on receipt of closure report:
- Accept closure report and close the proceeding.
- Not to accept closure report, rather take cognizance on such report.
- If not satisfied by investigation he may direct further investigation.
- Mohd. Arif @ Ashfaq V/s The Registrar Supreme Court of India, it was held by Supreme Court in 2014 that, review petitions in death sentence are to heard orally by 3 judges bench. Permission for reopening of review petitions was also given through this case.
- Accused ‘X’ V/s State of Maharashtra, it was held by Supreme Court on 12/04/2019 that, post conviction mental illness is a mitigating factor to commute death sentence.
- Yashwant Sinha V/s Central Bureau of investigation (April 2019) it was held by Supreme Court that, official secrets Act has no provision to:
- Prohibit publishing secret documents.
- Prohibit placing such documents before court of law.
- Chairman & MD Fertilizers and chemical Travancore Ltd. V/s General Secretary FACT employees association (April 2019) it was held by Supreme Court that, principle of Resjudicata is applicable to labour/industrial proceedings. (Resjudicata is embodied in section 11 of code of civil procedure, 1908 is based on principle that once a case has been heard and finally decided by court of competent jurisdiction, then it shall not be heard by court if it has same parties, cause of action and even if it has such matters which could have been raised in former but were not raised it would be deemed that they were heard and finally decided)
- Atma Ram V/s State of Rajasthan (April 2019) it was held by Supreme Court that, examination of witnesses in the absence of accused is a curable irregularity.
- Rupali Devi V/s. State of Uttar Pradesh (April 2019) it was held by Supreme Court that, case under section 498A (cruelty on woman) Indian Penal Code can be even filed at place where woman took shelter out of her matrimonial home.
- Sampat babso kale V/s. State of Maharashtra (April 2019) it was held by Supreme Court that, corroborative evidence is must to be required if while making Dying Declaration the deceased’s state of mind was doubtful.
- The State of MP v/s Bunty. On 14/03/2019 supreme court held that, it will not be a case of clear acquittal, if accused (employee/candidate) is acquitted on benefit of doubt. Thus held Bunt as unfit for selection as constable in MP police
- Kolkata west International city Pvt. Ltd. v/s Devasis Rudra. On 25/03/2019 Supreme Court held that buyer can be expected to wait for reasonable period for possession of property.But 7 years is beyond reasonable period.
- Goverdhan Das v/s Chaman Lal & ors. On 25/03/2019 Supreme Court held that benefit of probation of offenders act is not available to life imprisonment convicts. (Explanation: Probation is treatment device for convicts. It is non custodial alternative. The offender is released on probation for good conduct and despite of imprisonment in whole, he is released on bond/surety to serve the imprisonment whenever called upon to do so but not exceeding 3 years. Condition is superimposed to maintain peace and good behavior.)
- Satish Chandra Ratan Lal Shah v/s State of Gujarat. On 03/01/2019 it was held by Supreme Court that, mere inability to repay loan does not constitute cheating unless fraudulent/dishonest intention is shown right at the beginning of the transaction.
- Pattu Rajan v/s The State of Tamil Nadu. On 29/03/2019 it was held by Supreme Court that, second FIR is not barred merely because motive in both offences are same.
- Secretary General Supreme Court of India v/s. Subhash Chandra Agarwal it was held by Delhi HC on 12th Januray 2010 that Supreme Court and Chief Justice of India are within purview of Right to Information Act, 2005.
- Senior Suprintendent of Post offices v/s. Gurusewak, Supreme Court on 15th March 2019 held that Gramin dak sewak is not an employee under payment of gratuity Act. They are engaged as extra departmental agents.
- P. Bandhopadhya v/s Union of India, on 22nd March 2019, it was held by Supreme Court that principle of Resjudicata is applicable on writ petitions as well. Resjudicata in a broader way embodies the principle of “INTEREST REPUBLICAE UTSIT FINIS LITIUM”— It is in the interest of state litigation should come to an end.
- Murli S. Deora v/s Union of India, on 2nd November 2001, it was held by Supreme Court that smoking is prohibited at public places. Non smokers should not suffer due to smokers.
- 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.