Fortnightly Newsletter- Jan 14, 2018

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January 14, 2018

As we reach half way of January, we have witnessed some substantial developments this month with the Supreme Court and High Courts resuming after winter vacation. Some judicial pronouncements have rather been noteworthy with significant cases like Aadhaar case, Section 377 of IPC  case being lined up for decision by the Constitution Bench of the Supreme Court from January 17 onwards.

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However, the legal news which has created a ruckus and turmoil in the Judiciary regime are shocking revelations by four senior-most Judges of the Supreme Court which has opened the Pandora’s Box and posed some serious questions against the functioning of the Apex Court in India. The much touted media conference by the Judges has drawn criticisms and cacophonous debates in the legal fraternity and also rendered vulnerable the judiciary’s code of conduct. These developments have rather been sad as they raise crucial questions against the Judicial mechanism in India, however the most intriguing concern is …Was this the only way the alleged rift between the four Judges and Chief Justice Dipak Misra could be resolved?

Amidst all these activities, we present for you Vakilno1’s Fortnightly Newsletter giving a brief insight of important judicial decisions and essential changes incorporated in Law in the past two weeks.

Important Decisions by the Supreme Court and High Courts

SC: Candidates with Criminal Antecedents not Fit for Police Force

In this recent case taken up by the Supreme Court a batch of petitions were taken together to decide the common issue:

Whether the candidature of the respondents who had disclosed their involvement in the criminal cases and also their acquittal could be cancelled by the Screening Committee on the ground that they are not suitable for the post of constable in Chandigarh Police?

Whether the court can substitute its views for the decision taken by the Screening Committee?

The Court in the case observed that candidates with criminal antecedents even after acquittal are not fit to join the Police Force.

Other key takeaways from the case:

Police Aspirants to be of Good Character and Clean Antecedents- the Supreme Court opined that entering into the police service required a candidate to be of good character, integrity and clean antecedents. Reference was also made to the case of Commissioner of Police, New Delhi and Another v. Mehar Singh[2], wherein the acquittal was based on compromise and the Court opined that even though acquittal was based on compromise, it is still open to the Screening Committee to examine the suitability of the candidate and take a decision.

Authority of Screening Committee in deciding Candidature- It was further reinstated that the Screening Committee would be entitled to keep persons involved in grave cases of moral turpitude out of the police force even if they are acquitted or discharged if it feels that the acquittal or discharge is on technical grounds or not honourable.

Read more here.

SC to Reconsider Law Criminalizing Homosexuality in India

The Supreme Court has now agreed to reconsider its judgment passed in 2013 in the case of Suresh Kumar Kaushal v. Naz Foundation, wherein the Apex Court had upheld the constitutional validity of Section 377 of Indian Penal Code.  Section 377 of IPC criminalizes homosexuality in India.

Here it would be relevant to mention that a Curative petition challenging the Supreme Court’s judgment in Naz Foundation case is pending before the Supreme Court. However, the Petitioners in the case have submitted that the issues for challenge to Section 377 of IPC raised by the Petitioners in the present petition are varied and diverse from issues raised in the Curative Petition.

In the case, the Petitioners who are LGBT persons have alleged that their rights to sexuality, sexual anatomy, choice of sexual partner, life, privacy, dignity and equality alongwith other Fundamental rights guaranteed under Part III of the Constitution of India have been infringed by virtue of Section 377 of IPC.

The Supreme Court Bench in the case has referred the matter for consideration by a larger Bench of the Court.

Read more here.

SC Says on Attaining Majority Individual is Entitled to Freedom of Choice

In this recent case, the Supreme Court has made a remarkable observation by holding that an individual who has attained majority is entitled to freedom to make his/her choice.

Other key takeaways from the case:

  • That as a major, the Petitioner’s daughter she is entitled to exercise her choice and freedom and the Court cannot get into the aspect whether she has been forced by the father or not.
  • That on attaining the age of majority in an individual’s life has its own significance. She/he is entitled to make her/his choice.
  • The Courts cannot, as long as the choice remains, assume the role of parens patriae[1]. The daughter is entitled to enjoy her freedom as the law permits and the Court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father.

Read more here.

SC- Not Mandatory to Play National Anthem in Cinema Halls

In a major development, the Supreme Court held last week that it is not mandatory to play national anthem in cinema halls, thereby putting to rest the said contentious issue. The Supreme Court Bench headed by the Chief Justice Dipak Misra  ruled that from now onwards it will not be mandatory for cinema halls to play the National Anthem.

In November, 2016 Supreme Court comprising of Chief Justice Dipak Misra and Justice Amitava Roy had passed an interim order directing that all the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem. 

Later in October, 2017, in the case of Shyam Narayan Chouksey v. Union of India, three-Judge Bench of the Supreme Court decided to reconsider the interim order passed in November, 2016 and stated that it would be appropriate for the Central Government to take a call in this regard and stated that the Government’s decision shall not be influenced by Supreme Court’s interim order of November, 2016.

The Center has now requested the Supreme Court to modify its November, 2016 judgement making it mandatory for cinema halls to play National Anthem till the Inter-Ministerial Committee constituted by the Central Government comes up with its recommendations in the matter.

In view of the aforesaid, the Supreme Court has held that it is not mandatory for cinema halls to play National Anthem and the interim order of 30.11.2016 stands modified.

Read more here.

Kerala HC: Under Hindu Law Father Liable to Pay Marriage Expenses of Daughter

In this case the issue that arose before the Court was whether a father is legally liable to meet the marriage expenses of his daughter’s wedding? The Kerala High Court in the case has decided in the affirmative to hold that in the case of an unmarried daughter, ‘maintenance’ includes the reasonable expenses of and incident to her marriage.

Other key observations by the Court were:

  • That it was immaterial whether there was any valid marriage between the respondent and the mother of the petitioner. As per Sections 20(1) and 20(2) of the Act, the father has obligation to maintain his daughter, whether legitimate or illegitimate.
  • That Section 20(1) of the Actenjoins upon a Hindu to maintain his or her legitimate or illegitimate children. Section 20(3) of the Act narrows down the legal obligation to maintain an unmarried daughter in so far as she is unable to maintain herself from her own earnings or property.
  • That right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Act[1]. As per Section 3(b) (ii) of the Act, in the case of an unmarried daughter, ‘maintenance’ includes the reasonable expenses of and incident to her marriage.
  • That there is a duty cast on the father to maintain the minor daughter till her marriage and to meet her marriage expenses

Read more here.

Delhi HC: Only Hosting Web Page on Facebook Will not Confer Jurisdiction on Court

The present judgment pronounced by the Court in the case is an essential one in view of rapid technological advancement and substantial presence of products and services on social media including Facebook and Twitter. It determines the issue in trademark passing off and infringement cases whether a universal website which can be viewed all over the world confers jurisdiction on the State where it is viewed.

  • The Delhi High Court in the case has made some noteworthy observations in view of contemporary issues emerging in view of technological advancement and advancement of social media. The Court also made reference to the effects doctrine to hold that merely hosting a web page on Facebook would not be sufficient to confer jurisdiction on a Court where the defendant does not carry on business.
  • With reference to the Effects Doctrine, the Court opined that For the “effects” test to apply, the plaintiff must necessarily plead and show prima facie that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the plaintiff within the forum state by the Defendant resulted in an injury or harm to the plaintiff within the forum state.

Read more here.

Amendments in Law/ Recent Notifications

Increase in Salary of Judges: Bill Passed by Lok Sabha

The High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill, 2017 was passed by the Lok Sabha on Thursday. The Bill which amends the High Court Judges (Salaries and Conditions of Service) Act, 1954 and Supreme Court Judges (Salaries and Conditions of Service) Act, 1958 was introduced on December 11, 2017 by Minister of Law and Justice Shri Ravi Shankar Prasad. The salaries, allowances and pensions of the Judges of the Supreme Court and High Court were last revised w.e.f.1st January, 2006, as per the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act, 2009.

Read more here.

Center Notifies the Companies (Amendment) Act, 2017

The Ministry of Law and Justice notified the Companies (Amendment) Act, 2017 on January 3, 2018. The provisions of the Act will come into force on the date notified by the Central Government.

Some provisions in the Amendment Act have important bearing on the working of the Insolvency and Bankruptcy Code, 2016 (I&B Code).

Read more here.

Consumer Protection Bill, 2018 Introduced in the Lok Sabha

The much awaited and touted Consumer Protection Bill, 2018 was introduced in the Lok Sabha by Shri Ram Vilas Paswan, Minister of Consumer Affairs, Food and Public Distribution on January 05, 2018. The entire text of the Bill can be accessed here.

Also read Cabinet Approves New Consumer Protection Bill

The Bill primarily seeks to provide for protection of the interests of consumers and for the said purpose, to establish authorities for timely and effective administration and settlement of consumers’ disputes and for connected matters.

Some of the key features of the Bill inter alia include establishment of Central Consumer Protection Authority, online filing of consumer complaints, measures to prevent unfair trade practices in E-commerce transactions.

Read more here.

Negotiable Instrument (Amendment) Bill, 2017 Introduced in the Lok Sabha

The Bill to amend the Negotiable Instrument Act, 1881 namely the Negotiable Instrument (Amendment) Bill, 2017 was introduced in the Lok Sabha on January 02, 2018.

Key highlights of the Negotiable Instruments (Amendment) Act, 2017 are:

  1. Provision for interim compensation- The amendment introduces Section 143A which provides for power to order interim compensation. It states that the Court trying an offence under Section 138 (dishonor of cheque on account of insufficient funds) may order the drawer of the cheque to pay interim compensation to the complainant. However, the amount of interim compensation shall not exceed twenty per cent of the amount of the cheque.
  2. Power of Appellate Court to order Payment of Pending Appeal against Conviction- The Bill seeks to insert Section 148 in the Negotiable Instruments Act which provides that in an appeal by the drawer against conviction under Section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of 20% of the fine awarded by the trial Court.

Read more here.