Fortnightly Newsletter- March 19, 2018

0
820

March 20, 2018

This fortnight was marked with significant developments and verdicts by the Supreme Court of India. The Apex Court’s decisions reigned from the hysterical issue of Aadhaar linkage with Bank A/c and entry of foreign law firms and lawyers into India to the inquisitive case of euthanasia. The Court’s verdict in allowing passive euthanasia has been a historical one and is drawing applauds from the society.

Advertisement

We here present for you a compendium of some remarkable judicial decisions this fortnight.

Supreme Court Decisions

SC says Demonstrations Creating Public Disturbance not Protected u/Article 19(1)(a)

Case name: Bimal Gurung v. Union of India

In this recent case, the Supreme Court has elucidated on the question as to what is the nature and extent of public demonstration that is protected by the Constitution and constitutes freedom of speech and expression under Article 19(1)(a) of the Constitution.

The word freedom of speech must be broadly construed to include right to circulate once view by word or mouth or through audio visual instrument. Right of public speech is one form of expression which is also a part of freedom of speech and expression. Demonstrations are also a mode of expression of the rights guaranteed under Article 19(1)(a).

However, the demonstrations whether political, religious or social or other demonstrations which create public disturbances or operate as nuisances, or create or manifestly threaten some tangible public or private mischief, are not covered by protection under Article 19(1).

Read more here.

SC: Damages become due on the Date of Breach of Contract

Case name: M/s Fortune Infrastructure v. Trevor D’Lima & Ors.

In the case, the Respondents were aggrieved that the appellants were not delivering the possession of flats and accordingly approached the NCDRC (National Consumer Dispute Redressal Commission) to hold that the appellants were guilty of deficiency in service and unfair trade practices as per the provisions of the Consumer Protection Act, 1986.

In context of facts of the case, the issue that arose was whether there is deficiency of service on the part of the appellant builder? If so, what is just and reasonable compensation?

The Court held that there was deficiency of service and on the point of reasonable compensation the Court opined that the contractual damages are usually awarded to compensate an injured party to a breach of contract for the loss of his bargain and the said principle was more applicable to the real estate sector.

For quantum of compensation on account of delay in delivery of flats, the Supreme Court made reference to the case of Ghaziabad Development Authority v. Balbir Singh, wherein the Court observed that there was no fixed formula for fixing damages.

That whenever the builder has refused to perform the contract without valid justification, the buyer is entitled for compensation as he has been deprived of price escalation of the flat. Every breach of contract gives rise to an action for damages. Such amount of damages must be proved with reasonable certainty.

Read more here.

SC Extends Deadline for Linking of Aadhaar Number

In a significant development, Five-Judge Constitution Bench of the Supreme Court has extended the requirement of mandatory linking of Aadhaar number with Bank Account and Mobile numbers till the final disposal of Aadhaar cases currently being heard by the Apex Court.

The Supreme Court vide its order dated 15.12.2017 had extended the date for mandatory linking of Aadhaar number till March 31, 2018, however in view of ongoing petition which challenges the validity of this requirement, the Bench has further extended the deadline.

Read more here.

MPs and MLAs Practicing Law in India: SC Issues Notice to BCI

In a subsequent development to a petition instituted with the Supreme Court seeking ban on legislators from practicing law in India, the Supreme Court has now issued notice to the Bar Council of India (BCI) in the case.

The Petitioner, namely Ashwini Kumar Upadhyay has filed petition with the Court, whereby he has prayed that the Legislators (MP’s and MLAs) shall be debarred from practicing law in India. The Petitioner in the case has also prayed that in the alternative, Rule 49 of the Bar Council of India Rules shall be declared ultra vires so as to permit Public Servants from practicing law.

Rule 49 of Bar Council of India Rules states that an advocate shall not be a full-time salaried employee of any person, government or firm so long as he continues to practice law.

Earlier in January this year, the BCI had issued notice to reportedly 500 legislators practicing law in India and sought their response on aforesaid prayer of the Petitioner.

The issue encapsulating the present case is indeed an intriguing and debatable one. If legislators are barred from practicing law then some top names like Kapil Sibal, Abhishek Manu Singhvi, P. Chidambram etc. would be debarred from practicing as Advocates.

SC: Foreign Law Firms cannot Set up Offices or Practice in India

In a major development, the speculations surrounding entry of foreign law firms and lawyers in India has been put to rest by Two-Judge Bench of the Supreme Court.

The Supreme Court made two categorical rulings in the case:

  • Foreign Law firms cannot set up Offices in India or practice in Indian Courts
  • Foreign lawyers can give advice to Indian clients in ‘fly in and fly out’ basis

Read more here.

SC Dismisses Plea for Two-Child Policy in India

The Supreme Court Bench comprising of Justice Kurian Joseph has dismissed plea urging for implementation of two-child policy in India. The Court while dismissing the Petition made a scathing attack on the parliament for non-implementation of the long impending two-child policy in India.

In the case, the Petitioner sought direction to the Government to formulate policies that would give incentives to couples following two-child policy in India. The Petition cited the increasing population of India a grave concern leading to problems like unemployment and poverty.

The Court while dismissing the plea strongly stated that go to Parliament, it is not for us to decide on two children or three children. This is a policy matter. Go to the elected representatives. We [Judges] are appointed, they are elected representatives.

Population explosion in India is a known factor and problems associated with the same are grave and numerable.

SC: Referring Parties to Arbitration has Serious Civil Consequences

Case name: Kerala State Electricity Board and Anr. v. Kurien E. Kathilal

In the instant case, the Supreme Court has held that if no arbitration agreement exists between the parties then without a joint memo or a joint application of the parties, the parties cannot be referred to arbitration. Under Such circumstances, the procedural mechanism as enumerated under Section 89 Code of Civil Procedure is to be duly adhered to.

Read more here.

SC: Arbitration Clause Does not Bar Filing of Complaint with Consumer Forum

In a recent case M/S Emaar MGF Land Limited & Anr. v. Aftab Singh, the Two-Judge Bench of the Supreme Court agreed with NCDRC’s holding in July 2017 whereby, the National Commission ruled that an Arbitration Clause in Buyer’s Agreement cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.

Read more here.

Landmark Judgement-SC Allows Passive Euthanasia and Living Will, Issues Guidelines

Case name: Common Cause v. Union of India

In a landmark judgement passed by five-Judge Constitution Bench of the Supreme Court, the Court has recognized right to die with dignity as a fundamental right. The Bench has hence recognized passive euthanasia and living will in India.

The Supreme Court’s verdict came in a case instituted by NGO Common Cause wherein the Petitioner sought a robust system of certification for passive euthanasia and recognition for “living will” in India. The Constitution Bench of the Supreme Court in the case has also issued guidelines for enforcement of living wills and the procedure to be followed for euthanasia.

Read more here.

BREAKING: SC Overrules Kerala High Court’s Order Annulling Hadiya’s Marriage

In a major development to the ongoing Love-Jihad case, the Supreme Court has now overruled Kerala High Court’s Judgement in Hadiya case. In May last year the High Court of Kerala on plea instituted by Hadiya’s father Ashokan had annulled Hadiya’s marriage to Shafin Jahan and also directed that Hadiya should not interact with outsiders as she was a weak girl vulnerable to exploitation.

Reportedly, the Supreme Court while pronouncing its verdict in the case today also stated that it had arrived at the decision after speaking to Hadiya and that the investigation by NIA (National Investigation Agency) in the case would continue.

Read more here.

Decisions by the High Courts

Delhi HC on TM Renewal, says Registrar’s Duty to Inform about Approaching Renewal

Case name: M/s Epsilon Publishing House Pvt. Ltd. v. Union of India and Ors.

In the case, the Appellant who was aggrieved by Delhi High Court’s judgment approached the Division Bench of the Delhi High Court. In the case, the Single Judge of the Court had dismissed its writ petition by which the renewal of trademark “LOKPRIYA EASY NOTES” was challenged.

The Division Bench of the Delhi High Court while agreeing with the Single Judge opined that it was Registrar’s duty to inform registered proprietor of the mark about approaching expiration of the mark.

Read more here.

State Govt. Jobs on Different Age Criteria for Domicile Candidates is Unconstitutional

Case name: Mukesh Kumar Umar v. State of Madhya Pradesh

In the case, the issue that arose before the Division Bench of Madhya Pradesh High Court was whether a different age criteria for the candidates from outside the State and the candidates who are domicile of State of Madhya Pradesh in relation to employment under the State is discriminatory and in violation of Articles 16(1), 16(2)  and Article 15 of the Constitution of India?

The High Court in the case held that the concept of different age criteria for the candidates to be discriminatory in nature and both, under Articles 15 and 16 of the Constitution of the action of the State in granting relaxation in age only to the candidates who are domicile of the State of Madhya Pradesh was contrary to the Constitutional mandate.

Gujarat HC: Use of Technology for Speedy Disposal of Dishonor of Cheque Cases

Case name: Sachin Singh Rakesh Singh Chauhan v. Tribhuvanbhai Bhailal Vasava & Anr.

In this present case, the Gujarat High Court took strong note of opponent-accused causing delay of proceedings under Section 138 of NI Act by adopting tactics for delaying service of notice.

Also read Notice of Dishonor of Cheque: Law and Important Judgments

In view such delay tactics adopted by accused, the High Court recommended that technological modes like e-mail and text messages to official mobile number shall be resorted to for service of notice. The High Court placed reliance on Supreme Court’s recent judgment in the case of Meters and Instruments Private Limited and Another vs. Kanchan Mehta Another[1]wherein the Apex Court directed all the Courts concerned to issue the summons by detailing the process for issuance of the summons online where the accused can pay the specified amount online and his personal presence can be dispensed with.

Read more here.

Delhi HC: Leveling False Allegations of Illicit Relationship is Cruelty

In a recent case taken up by the Delhi High Court, the Court delved into the issue whether leveling of false allegations against spouse amounts to cruelty and is a ground for divorce.

In the case, the Delhi High Court on basis of facts and circumstances of the case concluded that the wife’s allegations about having illicit relations with Bhabhi certainly fell within the category of grave and weighty cruelty. These unsubstantiated allegations were of the nature to cause mental suffering to a person against whom such allegations are levelled. The appellant has not only levelled such bald allegations against her husband, but also against her sister-in-law (wife of elder brother of the respondent) and thereby maligning her reputation as well.

That leveling of false allegations of illicit relations of such nature and magnitude causes mental pain, agony and suffering to the husband. Such allegations causes profound and lasting disruptions in the relationships and also causes deep hurt and reasonable apprehension that it would be dangerous to live with a wife, especially when she is also threatening to commit suicide.

Read more here.