Allahabad High Court

The Lucknow bench of Allahabad High Court on Thursday ordered CBI probe into the entire process of selection initiated for the recruitment of 68,500 assistant teachers in primary schools in Uttar Pradesh after the Yogi Adityanath government submitted that it was not ready to hand over the probe to the CBI despite its three-member inquiry committee coming under question for sitting over evidence of corruption.

Bombay High Court

The Bombay High Court on Monday yet again refused to defer framing of charges against Lt. Col. Prasad Purohit, one of the main accused in 2008 Malegaon bomb blast case that killed six and injured over a 100 people.

The High Court on Monday passed an 18-page judgment in a criminal public interest litigation filed by former journalist Ketan Tirodkar in 2017.

The High Court on Friday dismissed the PIL filed by Bombay Lawyer’s Association seeking a writ of mandamus to be issued directing the CBI to challenge BJP president Amit Shah’s discharge in the alleged fake encounter case of Sohrabuddin Shaikh.

Delhi High Court

The Delhi High Court on Monday, ordered the CBI to maintain status quo till November 1 on proceedings against its Special Director Rakesh Asthana, who was sent on leave by the government.

The High Court on Monday also issued contempt notice to the editor of a Chennai-based, Tamil news magazine for his tweets against Justice S Muralidhar. A bench of Justices Hima Kohli and Yogesh Khanna initiated contempt proceedings and sought response of Swaminathan Gurumurthy, the editor of the weekly ‘Thuglak’ magazine, and listed the matter for further hearing on December 11.

The High Court issued notice to the Centre, the Delhi government and the School Games Federation of India (SGFI) on a petition seeking inquiry into the death of Nitisha Negi, the teenage footballer from Delhi who drowned at Gelnelg beach in Adelaide, Australia, where she was on a tour as part of a 120-member Indian contingent participating in the Pacific School Games.

The High Court amended its Rules (Original Side) to bring in features such as ‘Hot-Tubbing’ and ‘Confidentiality Club’ besides various other amendments which will come into effect from November 1.

The High Court on Thursday stayed the notice of eviction issued to the Jawaharlal Nehru Memorial Fund (JNMF), a charitable trust chaired by Congress leader Sonia Gandhi by which it was asked to vacate its premises at Teen Murti Bhavan, once the residence of India’s first Prime Minister Jawaharlal Nehru.

The High Court has set aside the trial court judgement that had acquitted 16 Provincial Armed Constabulary (PAC) officials in the 1987 Hashimpura mass murder case. The Court convicted all the accused and sentenced them to life imprisonment.

The High Court stayed the recruitment of 2,000 nursing officers at various centres of All India Institute of Medical Sciences (AIIMS) on a petition moved by an acid attack victim alleging discrimination in the eligibility criterion for the recruitment process.

The High Court issued a series of directions to ensure that the provisions of Sections 107 and 151 of the Code of Criminal Procedure, 1973 are not abused or misused by the Special Executive Magistrates and Police.

The High Court dismissed a petition seeking an end to gender-discriminatory practices in all faiths and make acts of discrimination a penal offence. A bench of Chief Justice Rajendra Menon and VK Rao refused to entertain the plea saying it lacked “territorial jurisdiction”.

In an important judgment dealing with the violation of trade mark rights by e-commerce platforms and the extent of protection/exemption enjoyed them; the High Court held that when an e-commerce company claims exemption under Section 79 of the Information Technology Act, it ought to ensure that it does not have an active participation in the selling process.

Jammu & Kashmir High Court

The Jammu and Kashmir High Court recently pulled up a law publisher for incorporating misleading and incorrect provision regarding an amendment of Section 167 of Jammu and Kashmir Code of Criminal Procedure.

Karnataka High Court

The Karnataka High Court held that merely because a reassessment order is passed under the Value Added Tax law after coming into force of the GST regime, it would not make that reassessment order void in the eyes of law.

 Kerala High Court

While considering a petition seeking to restrict entry of non-Hindus in Sabarimala temple, the High Court of Kerala orally observed that Sabarimala belonged to all and not just Hindus. The petition filed by T G Mohandas, Convenor of BJP State Intellectual Cell, contended that non-Hindus and non-idol worshippers cannot be permitted entry on the basis of SC judgment in Indian Young Lawyers’ Association case.

On Thursday, the High Court admitted a petition challenging the participation of judicial officers of subordinate judiciary in direct recruitment for district judges

Waiving ‘cooling-off’ time for divorce for a Christian couple, the High Court of Kerala observed that divorce by mutual consent is a secular concept and there can be no discrimination on the ground of religion against persons who want divorce by mutual consent.

The Full Bench of the High Court of Kerala clarified that once the insurer shows that it has intimated the cancellation of insurance policy to the insured through post addressed to him, then the burden to show that the intimation was not received shifts to the insured. The Court was considering third party insurance policy under the Motor Vehicles Act.

The Kerala High Court called upon the State Police to bring out a good practice guide for digital evidence to tackle cybercrimes and also to impart training to police officers to tackle the criminal misuse of current and emerging technologies.

Madhya Pradesh High Court

The Madhya Pradesh High Court yet again commuted a death sentence awarded under newly-introduced Section 376AB IPC to a man accused of raping a three-year-old girl.

Madras High Court

The Madars High Court stayed the online sale of medicines by passing an interim order in a petition filed by Tamil Nadu Chemists and Drugs Association.

The High Court on Tuesday allowed compounding of offences against 21 students of Dr. Ambedkar Law College who were sentenced to three years imprisonment in connection with a clash in its campus in 2008.

Punjab & Haryana High Court

The Punjab and Haryana High Court upheld the conviction of former supervisor of Bal Niketan, Manish Arora, who had been accused of molesting inmates back in 2014. In doing so, Justice Anita Chaudhry ruled that the testimonies of two child witnesses in the case cannot be discarded just because other inmates did not come forward against the accused.

Telangana & Andhra Pradesh High Court

The Telangana and Andhra Pradesh High Court quashed disciplinary proceedings against a court-stenographer allegedly for her illicit sexual relationship with a judicial officer who was acquitted by the high court in a rape case filed by her. The bench comprising Justice V Ramasubramanian and Justice J Uma Devi criticized the observations against the ‘victim’ stenographer in the high court judgment acquitting the judicial officer, and also the initiation of disciplinary proceedings against her, and observed that the least that is expected from institutions is not to victimise the survivors, even if support services are not provided.

Uttarakhand High Court

While considering a plea of a murder convict who could not perform last rites and rituals of his father as he was denied parole, the Uttarakhand High Court observed that when a detainee seeks parole or custody parole to perform ‘last rituals’, it should not be denied.

The Bombay High Court has restrained the University of Mumbai from introducing 'Choice Based Credit System' in LL.B Course( both 3 year & 5 year course) in the academic year 2018-19. The University has been directed to conduct exam as per the existing system.

The Division Bench of Justices B R Gavai and M S Karnik expressed the view that the "shift in the midst of the academic year would cause serious prejudice to the interest of the students, who must have prepared themselves on the basis of the old system"

On August 24, 2018, the University of Mumbai issued a Circular stating that Credit Based Choice System(CBCS) will be introduced. Prior to this, the University was adopting 100 marks written paper system for evaluation of performance of the candidate. This circular was challenged by in a batch of petitions - a PIL filed by Dipak Kumar Chattopadhyay a practising lawyer & part time law lecturer and petitions filed by two students, Parthsarathi Saraf and Rohan Manohar.

The petitioners submitted that they were not opposed to CBCS in principle; but were aggrieved by the sudden introduction of the system in the middle of the course without adequate preparations.  Since the petitioners and most of the students have prepared themselves on the basis of the old system, the said sudden change would act to the detriment of the students at large, they contended.

It was their further the contention that the changed system provides for internal assessment of 40% of marks whereas 60% of marks are to be allotted for the written examination and that too to be conducted by the Colleges. This would lead to arbitrary marking system by different examiners as per their own choice. It was submitted that there are no clearcut guidelines as to how evaluation of internal assessment of 40% marks is to be done.

The University justified its decision stating that CBCS was a universally recognized system. Continuous assessment of the students was the new norm, as opposed to one time assessment with a final written exam, submitted the University.

The Court lauded the intention of the University to bring in dynamic changes and acknowledged that in educational matters Universities have the final say. However, in the instant case, the Court noted that the system was sought to be abruptly introduced, without giving adequate opportunities to the students to adapt to it.

"The only question that we ask ourselves is as to whether the same should be permitted during the academic session, when half of the session is already over", the Court expressed.

The Court noted that the University had issued exam notification on September 7 on the basis of 100 marks written exam system even after the Circular. This gave an impression to the students that the existing system will be followed. "It appears that the Respondent – University itself was under confusion as to which system it has to follow", observed the Court.

It was noted that the University  admitted that this sudden change was done, since in the last year, on account of faulty on­line system, the results could not be declared in time.  However, the Court observed that the students cannot be penalised for the fault of university.

Therefore, the Court passed a stay order of the Circular and directed the University to conduct the examination as per the existing system.

Advocates Uday Warunjikar, Abhishek Bhat, Sachin Pawar, Vishal Kanade and Madhulikha Murthy appeared for the petitioners.

Read Order

‘By exercising the power under section 52A, unauthorised development which is contrary to the provisions of the Development Plans/Regional Plans under the MRTP Act and the Development Control Regulations framed under the MRTP Act shall not be declared as a compounded structure.’

The Bombay High Court has read down the provisions of section 52A of the Maharashtra Regional and Town Planning Act, 1966 and struck down Rules 4 (partly), 5 and 7 of the Compounded Structures Rules holding that they offend Articles 14 and 21 of the Constitution of India.

The bench comprising Justice AS Oka and Justice AK Menon read down Section 52-A of the MRTP Act to mean that non obstante clause in sub-section (1) of Section 52-A does not enable the planning authorities or the state government to compound unauthorized developments which are contrary to the provisions of the development plans/regional plans under the MRTP Act and the Development Control Regulations framed under the MRTP Act. It said that by exercising the power under section 52A, an unauthorised development which is contrary to the provisions of the Development Plans/Regional Plans under the MRTP Act and the Development Control Regulations framed under the MRTP Act shall not be declared as a compounded structure.

A number of PILs were filed challenging the validity of Section 52A of the Maharashtra Regional and Town Planning Act, 1966 which provides for en-bloc regularization of a very large number of illegal structures constructed in the state on or before 31st December. Their contention was that the said amendment, brought last year, destroys and defeats the very concept of town planning.

The bench observed thus in 138-page judgment: “If a provision or statute permits en-bloc regularization of illegal construction by completely overriding the provisions of the MRTP Act, DCR and draft or Development/Regional Plan it will surely constitute violation of Article 21 of the Constitution of India. But the law can be justified by the State by producing material which is not done by the State in this case. If a statute permits regularization of illegal development carried out before a cut off date, which is otherwise legal and it is illegal only on the ground that the same has been carried out without obtaining development permission, such a statute may not attract violation of Article 21. There is no violation of the town planning involved in such regularization. In the present case, if section 52A read is with the Compounded structure Rules, it permit regularization of illegal construction of multi storied buildings on public properties, on the lands reserved for public purposes, on the lands acquired for public purpose etc. We find for the reasons already set out that the provisions of section 52A and Rules 4, 5 and 7 Compounded structures Rules offend Articles 14 and 21 of the Constitution of India.”

The court also struck down Clauses (d) and (e) of Rule 4 (only to the extent to which the same permit compounding of structures contrary to provisions regarding zones) as well as Rules 5 and 7 of the Compounded Structure Rules.

The court further illustrated: “If construction of a building is carried out without obtaining development permission under the MRTP Act and the permissions required under the Municipal laws, it can be regularized if (i) all the required parameters such as size of the plinth, available FSI, necessary safeguards for fire fighting etc as provided in the DCR are taken care of and (ii)the structure can be made conforming to the provisions of DCR. By exercise of powers under sub-section (1) of section 52-A, such structure could be compounded if necessary, by imposing a condition to modify or alter the structure to bring it in conformity with the DCR. Obviously, if FSI is used which is more than what is permissible under the MRTP Act and the DCR framed thereunder, the structure to the extent to which additional F.S.I has been used cannot be regularized. If the DCR requires open spaces and set back to be provided in a particular manner, unless such provisions are complied with, the structure cannot be regularized. If DCR provides that only owner or lessee of property can apply for development permission, the structure can be regularized or compounded only if owner or lessee apply for regularization. Moreover, a structure made on a public property by encroaching upon it cannot be regularized.”

Referring to various apex court judgments, the bench said: “The Planning Authorities and the State will have to show zero tolerance to illegal constructions and it is the duty of the Planning Authority to take immediate steps for demolition of illegal developments. It is also their duty to ensure that such illegal developments are prevented and therefore, as far as PILs concerning Navi Mumbai are concerned, interim orders directing survey of illegal constructions, creation of Grievance Redress Mechanism etc. will have to be continued as final directions.”

“From the case diary it is clear that the act of the petitioners and other accused is clear vigilantism”

“This kind of hooliganism cannot be viewed lightly. If this type of vigilantism is permitted the rule of law will break down”, remarked Pathanamthitta District and Sessions Court while dismissing bail applications of 5 persons arrested by Kerala Police for their ‘protests’ in Sabarimala.

The offence alleged against Shylesh and four others were under Sections 143, 144, 145, 147, 148, 188, 332, 333, 353, 283, 427 r/w sec.149 of the Indian Penal Code and Sec.3(2)(e) of the Prevention of Damage to Public Property Act, 1984. Before the court, they contended that are totally innocent of the allegations levelled against them and that they were implicated in the crime due to political influence.

The public prosecutor opposed their bail plea contending that they were trying to take law into their own hands in order to defeat the Constitution Bench decision of the Apex Court and if such activities are allowed to continue it will create havoc in the society and the rule of law will fail.

The Court took note of the submission by the Prosecutor that KSRTC buses sustained damage to the tune of six lakhs rupees in addition to revenue loss. The court also observed that police officers who were in duty sustained hurt also at the hands of accused and others.

It was then the Sessions Judge John.K.Illikkadan observed: “This kind of hooliganism cannot be viewed lightly. From the case diary it is clear that the act of the petitioners and other accused is clear vigilantism. At the time of argument the learned counsel appearing for the petitioners submitted that the petitioners and other devotees of Lord Ayyappa had not done any illegal acts as alleged but the police officials themselves destroyed the vehicles and cooked up this false case against the petitioners and other innocent devotees. The said argument of the learned counsel appearing for the petitioners is not able to swallow as such because in order to substantiate that argument no materials is available on record. If this type of vigilantism is permitted the rule of law will break down.

Background

 On 28^th September, the Supreme Court permitted entry of women of all age groups to the Sabarimala temple, holding that ‘devotion cannot be subjected to gender discrimination’. Some Hindu groups have launched large scale protests against implementation of this judgment.

It is reported that the Police has so far arrested more than 3500 people in connection with the protests against ‘women’ entry in Sabarimala.

19 Review petitions have been filed against this judgment and the Supreme Court will consider these pleas after Diwali vacation. Meanwhile, three judge bench comprising of Chief Justice Ranjan Gogoi and Justices S. K. Kaul and K. M. Joseph will also consider three fresh petitions regarding the entry of menstruating women between the ages of 10 and 50 years to the Sabarimala, Temple on November 13.

“It is true that in the present case, there were aggravating circumstances, but the early age of the appellant is also required to be noticed.”

The Patna High Court on Friday commuted death penalty awarded to a man convicted for rape and murder of a seven-year-old girl in Bihar.

Hari Kishun Sada was convicted by the trial court for rape and murder of a seven-year-old girl. He was convicted under Sections 376, 302 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act.

The bench comprising Justice Rakesh Kumar and Justice Arvind Srivastava, though upheld conviction recorded by the trial court, observed: “Learned Trial Judge has come to the conclusion that it was a case for capital punishment, but fact remains that such sentence is to be imposed in rarest of the rare cases and in each case, its fact is essential ingredient for deciding such sentence. It is true that in the present case, there were aggravating circumstances, but the early age of the appellant is also required to be noticed. Besides his early age, it has also been noticed that the appellant was the first offender and nothing has been brought on record that appellant was accused in any case earlier.”

The bench then modified the sentence to life imprisonment in view of the early age of the accused and considering the fact that on record, there is nothing that he was having criminal antecedents.

Last month also, in another death reference case, the same bench had converted sentence of death penalty imposed on a man accused of rape and murder of a 3-year-old to life imprisonment on the very same grounds viz. ‘early’ age and lack of criminal antecedents.

But in April 2018, the same bench had upheld death sentence awarded by the trial court to a 50-year-old man accused of rape and murder of an 11-year-old girl.  The Supreme Court recently stayed the execution of death sentence.

‘The priorities of the public need are matters which lie completely in the domain of the state government.’

The Bombay High Court on Friday refused to stay the construction of the proposed Chhatrapati Shivaji Maharaj Memorial observing that the project is a policy decision taken by the state.

The bench of Chief Justice Naresh H Patil and Justice GS Kulkarni were considering three PILs seeking interference of the court against the construction of the proposed Chhatrapati Shivaji Maharaj Memorial in the Arabian Sea at Mumbai.

Prof. Mohan Prabhakar Bhide, a chartered accountant, and ICWA had approached the high court seeking to scrap this project. He contended that such a project, to be constructed from public funds, is a waste of taxpayers’ money. He also said the state is not paying attention to the existing old monuments like that at the birthplace of Chhatrapati Shivaji at Shivneri Fort.

Rejecting these contentions, the bench observed: “We may observe that the decision to have a project of this nature is a policy decision taken by the State. From the reply affidavit, it is clear that the proper financial provision has been made and normal expenditure which would be incurred by the State Government on other necessary requirements is not being affected. Also the learned Senior Counsel for the State has argued before us that the State contemplates a scheme which would be worked out inter alia to recoup the cost of the project which may include fees which would be charged from the visitors.”

Refusing interference, the bench said the priorities of the public need are matters which lie completely in the domain of the state government.

We are sure that the State Government has given its appropriate consideration on all the financial issues before taking a policy decision to undertake the project in question, the court added.

The bench passed a separate order refusing a stay of the project in the PIL filed by the Conservation Action Trust, which challenged the environmental and CRZ clearance to the project.

The petitioners had objected to the provisions of a notification which conferred the powers on the Central government to dispense with the requirement of public hearing for some matters, if it is satisfied that the project will not involve rehabilitation and resettlement of the public or the project site is located away from human habitation.

On this contention, the bench said: “Prima facie on a plain reading of clause(D), ipso facto, in our opinion, the incorporation of clause (D) does not appear to be invalid or illegal. “

The court further added: “In undertaking the present project the State Government has in terms stated that the project does not involve rehabilitation and resettlement of the public and the project site is located away from human habitation. If this be the position, prima facie, we do not find that there is anything arbitrary on the part of the Central Government in incorporating such provision. We thus find much substance in the contention as urged on behalf of the State. It also cannot be overlooked that the project is considered by the State Government to be of national importance.”

The court also rejected interim relief in another PIL filed by Shweta Wagh which had sought a direction to not restrict any fishing activities for designated fishing zones in the project.

Meaza Ashenafi, a prominent East African women’s rights activist, has been appointed as the President of Ethiopia’s Federal Supreme Court.

The move is being viewed as another step in the efforts by reformist Prime Minister Abiy Ahmed to achieve gender parity in the government. Ashnefi’s appointment in fact comes two weeks after Abiy named 10 female ministers to make Ethiopia the third country in Africa— after Rwanda and Seychelles— to have its cabinet split equally between men and women.

Ashenafi previously served as a high court judge in Ethiopia, and went on to found the Ethiopian Women Lawyers’ Association, a group focusing on issues of sexual and intimate partner violence. She was also an advisor on gender and women’s rights at the UN Economic Commission for Africa.

In her extensive career as a lawyer, judge, legal advocate and business leader, she has focused on women’s rights and economic empowerment. She founded Ethiopia’s first women’s bank, “Enat Bank,” or “Mother Bank” in Amharic. The bank specializes in loans to underserved communities, including women and young people.

In 2013, she was nominated for the Nobel Peace Prize. She has also been a subject of a 2014 documentary film called “Difret”. The movie was written and directed by Zeresenay Mehari and produced by Angelina Jolie.

Difret reportedly tells the true story of 14-year-old Aberash Bekele who, in 1996, was kidnapped by a man who intended to marry her. In an attempt to escape her captor, Aberash shot and killed him, leading her to be charged with murder. Ashenafi represented the girl in court pro bono and succeeded in getting the charges dropped.

In her latest role, she was working as Gender Advisor at United Nations Economic Commission for Africa. Her appointment was now approved unanimously by the members of Parliament.

In no mood to delay the proceedings in a PIL revolving around linking online identity of users with Aadhaar or other government-authorised ID proof and making social media companies duty-bound to assist probe agencies in criminal matters especially cyber crimes, the Madras High Court has directed Google LLC and YouTube to appear before it even as the notice issued to them was served on their subsidiary Google India.

Justice S Manikumar refused to grant the request of Google India that a fresh notice be issued to YouTube and its parent company Google LLC since the notice issued to them earlier was served on Google India at its head office in Hyderabad.

The court was of the view that issuing fresh notice would delay the disposal of the writ petition and that Google India, which is a subsidiary, can inform its parent company and sister concern about the orders passed by the court and ask them to enter appearance.

The bench of Justice Manikumar and Justice Subramonium Prasad was hearing a petition moved by Antony Clement Rubin seeking directions to the government to make linking of Aadhaar or any one of the government-authorized identity proof mandatory for authentication while creating e-mail and other social media accounts.

Rubin’s counsel SV Pravin Rathinam had argued that linking of government-issued ID proof to create accounts on Facebook, Instagram, YouTube and Twitter or utility accounts PayTM, Uber, Ola, Gmail, Yahoo! and Hotmail) would help in tackling rising incidents of cyber crime, cyber defamations and cyber stalking and to protect the innocent “victimized E-Citizens of India”.

The court had in September issued notices to Facebook, Twitter, YouTube, WhatsApp and Google after it came to know during the hearing of a petition that social media companies do not provide details to the probe agency in case of commission of any cyber crime.

On October 31, Google India informed the court that notice sent to YouTube has been served at Google India Head Office at Hyderabad and requested that fresh notice be issued to YouTube LLC and Google LLC.

To this, the court said, “…we are of the view that notice, if any, to be issued once again, would only delay the disposal of the writ petition. Endeavour of this Court is that how these service providers can help an investigation agency, in the matter of any crime which is reported and taken note of. Is there not a duty and responsibility of a service provider to furnish information to the investigating agency, promptly, and if so, to proceed further. Viewed from the perspective of privacy vis-a-vis crime, we are of the view that service provider has a duty and responsibility, to provide adequate information to the investigation agency.”

It then asked the counsel of Google India, a subsidiary of Google LLC, to send a copy of the affidavit and orders passed in this writ petition to YouTube and Google LLC, “and the service provider can enter appearance”.

“We direct, YouTube LLC and Google Inc to enter appearance,” the bench ordered.

The matter is now listed for November 22.

Earlier, while issuing notice to the service providers, the bench had taken note of a counter-affidavit filed by Additional Commissioner of Police, Central Crime Branch, Greater Chennai, which said the Chennai City Cyber Crime Cell was facing difficulties in obtaining details from social media companies which were located outside the country and that these service providers were not providing details towards investigation, detection of crimes, reported to the Cyber Crime Cell.

“On the facts and circumstances of this case, and in exercise of powers under Article 226 of the Constitution of India, we are of the prima facie view that the Information Technology Act, 2000 Act and rules made thereunder, have to be implemented, in letter and spirit, and therefore, decide to enlarge the scope of the writ petition. Social media like Facebook, Twitter, YouTube, Whatsapp, Google from whom information is sought for investigation, Cyber Crime, Commissioner of Police, are required to be heard, as to why they should not be made as party respondents, to these writ petitions,” the bench had said while issuing notice to these service providers.

The Uttarakhand High Court has directed the Haridwar Municipal Corporation to provide 100 state-of-the-art changing rooms and construct 300 toilets at the Har Ki Paudi area and other major ghats of river Ganga.

A bench of Justice Rajiv Sharma and Justice Sharad Kumar Sharma said so in a string of directions passed by it in a PIL titled Narendra Vs State of Uttarakhand and others, stressing on absolute cleanliness at the ghats along river Ganga, which has been given the status of a living entity by the high court.

During the hearing, Lalit Narain Mishra, Commissioner, Municipal Corporation, Haridwar, informed the bench that 25 changing rooms have already been provided while 71 toilets are operational on all ghats but pointed out shortage of land for erecting more toilets.

He also apprised the court that 16 CCTV cameras are already installed while tenders have been called for installing 72 more CCTV cameras to ensure that the ghats are not littered and absolute cleanliness is maintained.

While appreciating the efforts of the civic agencies, the bench passed a string of directions as under:

A.There shall be a direction to respondent no.4 (municipal corporation) to complete the tender process within a period of 15 days and to install the remaining 72 C.C.T.V. Cameras at Ghats within a period of one month from today.

B. Respondent no.4 is directed to maintain the toilets at “Kusha Ghat” properly in future also.

C. Respondent no.4 is also directed to at least provide hundred State-of-the-art changing rooms, out of which 50 shall be set up at Har Ki Pedi and other connected Ghats, and remaining would be provided on major Ghats. These changing rooms shall be maintained properly and the highest woman Officer serving in the Municipal Corporation, Haridwar shall visit these changing rooms every day to ensure their cleanliness and maintenance. Respondent no.4 is also directed to construct at least 300 toilets by taking into consideration the rush on each Ghat. These toilets shall be constructed within a period of six months from today. It is also made clear that all the toilets shall be connected to the main sewerage line and no sewerage shall be permitted to be discharged directly into river Ganges.

D. We direct the Irrigation Department, Haridwar to provide sufficient land for construction of the toilets. The senior most Officer of the respondent no.4/Corporation shall hold meeting with the Superintending Engineers of Irrigation Department, U.P. and Irrigation Department, Uttarakhand within 48 hours from now. The land shall also be transferred within a further period of 15 days to the Municipal Corporation, Haridwar.

E.Respondent no.4 is further directed to maintain cleanliness, at Ghats by cleaning them every three hours round the Clock. The Commissioner, Municipal Corporation, Haridwar shall be personally liable to implement this order with the assistance of the Police.

F.Uttarakhand Jal Sansthan through its Executive Engineer (Sewerage Unit) is directed to render all assistance to respondent no.4 to ensure that sewerage pipes are not opened directly into river Ganges.

G. Respondent no. 4 and Executive Engineer (Sewerage Unit), Irrigation Department are directed to ensure that no garbage accumulates at “Rodibelwala” area.

H.The Superintending Engineer, who is present in person before this Court, fairly submits that the remaining 26 per cent work of installation of pumping station and treatment plant shall be completed by 31st December, 2018. It is made clear that thereafter not a drop of untreated water from “Kassaban” Naala shall be released directly into river Ganges. The pumping stations and treatment plants shall be made fully functional, as undertaken, on or before 31.12.2018. There shall be a direction to the Peyjal Nigam through Superintending Engineer, who is present in the Court to upgrade all the pumping stations working in the territorial jurisdiction of Municipal Corporation, Haridwar on or before 28.02.2019.

I.The Chief Secretary, State of Uttarakhand is directed to make available sufficient funds for executing the directions issued hereinabove to respondent no.4 as well as Peyjal Nigam on need based basis.

The bench made it clear that its directions should be implemented without getting affected by the model code of conduct with civic polls scheduled for November 19. Read Judgment:

Having repeatedly summoned doctors to decipher unreadable medico legal reports in many cases, the Lucknow Bench of the Allahabad High Court has directed submission of computerised reports along with original handwritten ones for facilitating the courts of law.

The Bench comprising Justice Ajai Lamba and Justice DK Singh asserted that medico legal reports would not serve their purpose if they are only readable by medical practitioners, observing, “The medico legal report, if given clearly, can either endorse the incident as given by the eye witnesses or can disprove the incident to a great extent. This is only possible if a detailed and clear medico legal report is furnished by the doctors, with complete responsibility. The medical reports, however, are written in such shabby handwriting that they are not readable and decipherable by advocates or Judges.”

It then ordered that while attending doctors can write the examination reports in hand, a computer printed version needs to be furnished so that it can be read and understood during the proceedings at various stages of a case. This report is required to be signed by the author of the report as true copy of the original, or by some other authorised signatory, after its comparison with the original.

The court further directed investigating officers, while filing chargesheets, to file copies of handwritten medico legal reports/injury reports and post mortem reports along with their verbatim typed or computer printed version, duly certified by the authors of those documents or the head of the concerned hospital.

“These computer printed versions of medico legal reports/injury reports and post mortem reports would neither be a substitute of the original one nor would be taken as a supplement, however, they would facilitate not only the courts but also the counsel for the prosecution and the defence to clearly understand their contents and accordingly assist the court,” it clarified.

While hearing a petition demanding quashing of an FIR against one Arjun Singh, the court was coaxed into summoning a doctor from Amethi Community Health Centre (CHC) for reading the injury report.

Before parting with the case, it lamented the fact that not much has changed despite repeated directions and imposition of costs on doctors recording medico legal/injury reports in illegible handwriting.

The court noted that it had faced similar issues in the year 2012 in Chhabiraj v. State of U.P. and others, when it was forced to summon Director General, Medical and Health, U.P. Lucknow.

The Director-General had then issued a circular on November 8, 2012 directing that medico-legal report shall be written in clear writing which is legible; simple words shall be used as far as possible; short/short form/abbreviation words shall not be used; and signatures, name and designation of the doctor who prepared the report shall clearly be mentioned.

The court, however, opined that there had not been any improvement in the last six years despite these directions, and that it has had to summon the doctor to the court in every other case to read out the reports for it.

Elaborating on the inconvenience caused by the current scenario, the court observed, “We hereby take judicial notice of the fact that a doctor in a government medical facility is required to examine a large number of patients in a day. If for every hearing in revisional jurisdiction, bail jurisdiction before the Court of Magistrate, Court of Sessions or the High Court or in appellate jurisdiction government medical practitioner is required to appear, the work of the doctor in the hospital shall suffer. A large number of patients would be deprived of the services of such medical specialist. In such circumstances, summoning a doctor simply for reading the report authored by him for bad handwriting does not make administrative sense.”

In view of the fact that the circular has not been adhered to, the court directed Principal Secretary, Home, U.P., Lucknow; Principal Secretary, Medical and Health Services, U.P. Lucknow; and Director General, Medical and Health Services, U.P., Lucknow to ensure that every medical facility where medico legal examination/post-mortem examination is being conducted is provided with computers and printers. Formats of post-mortem examination reports and medico legal examination reports were directed to be made and loaded on these computer.

The court further directed that this report should contain simple words, as far as possible, and should avoid the use of abbreviations and short forms. Such reports, it said, would form part of the police report prepared under Section 173 Code of Criminal Procedure.

The Principal Secretary, UP State Medical and Health Services was directed to ensure that computer and printer with the format as stipulated by it be made available within three months.

Read Order:

The High Court of Kerala has got four new judges with Justices V G Arun, N.Nagaresh, T V Anilkumar and N Anilkumar swearing in today as Additional Judges.

It was on November 1 that the President notified the appointment of four judges, pursuant to the recommendation made by Supreme Court on October 11.

Justices V G Arun and N Nagaresh were practising lawyers at the High Court. V G Arun enrolled as an advocate in 1989, and joined the chambers of Senior Advocate T R Raman Pillai in 1991. His father T K G Nair was a well known writer and journalist who had served as Director of Kerala Press Academy. Known for his composed and sober way of conducting cases, he has dealt with numerous cases in civil, criminal and original sides of the High Court. He has a keen academic passion for law, which made him the Editor of Indian Law Reports Kerala Series in 2005, and he continued to be at the helm of ILR till his resignation following the judgeship.

Justice N Nagaresh enrolled as an advocate in 1989. He started practise at the High Court as a junior to Senior Advocate O V Radhakrishnan. He served as the Assistant Solicitor General of India from 2014 till November 1, 2018, handling cases for Union of India in the High Court.

Justice T V Anilkumar joined the judicial service in 1991. He got promoted as District Judge in 2005. His academic bend of mind made him the director of Kerala Judicial Academy in 2016.

Justice N Anilkumar joined the judicial service in 1991 and got promoted as District Judge in 2005. He was serving as the Registrar General of the High Court since January 2018.

In the Full Court reference held to mark the swearing in of four judges, Advocate General C P Sudhakara Prasad and KHCAA President V Ramkumar Nambiar spoke congratulating the new appointees and wishing them success.

With the appointment of four new judges, the working strength of High Court of Kerala has increased to 38, against a sanctioned strength of 47.

‘It would be only between the parties to a marriage to seek for such declaration for their benefit against the person who claims or contends not to be a party to the marriage.’

The Gauhati High Court has held that a third party questioning the marriage of any other party would not be entitled to maintain proceedings before the family court.

In this case, Ram (names changed) had approached the family court seeking a declaration that Nita is not the legally married wife of Laksh and, therefore, she is not entitled to make any claim as his legal heir in respect of the properties left by him. The family court had held that the relief sought would fall under Section 7(b) of the Family Court Act, 1984 and that the petition is maintainable.

Nita filed an appeal before the high court contending that the jurisdiction of the family court as provided under Section 7 of the Act is to be exercised only when such a dispute arises between the parties to the marriage. On the other hand, Ram placed reliance on a Supreme Court judgment and contended that the expression “parties to a marriage” is conspicuously absent in sub-Section (b) of Section 7 and a petition seeking a declaration relating to the validity of marriage, would be maintainable.

In Balram Yadav vs. Fulamaniya Yada, the Supreme Court had held that a suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the family court.

Distinguishing this judgment, the bench comprising Chief Justice AS Bopanna and Justice Arup Kumar Goswami observed that, in the said case, the party who instituted the suit was seeking a declaration to the effect that the respondent is not his legally married wife.

The bench observed: “The question that would arise is as to whether in such circumstance the case would fall under Section 7(b) of the Act. In that regard, though in Section 7(b) of the Act the expression “parties to a marriage” does not occur, keeping in view the nature of relief that is provided before the Family Court, it would be only between the parties to a marriage to seek for such declaration for their benefit against the person who claims or contends not to be a party to the marriage. If that aspect of the matter is kept in view, a third party questioning the marriage of any other party would not be entitled to maintain proceedings before the Family Court. In any event, if such a party has any grievance, the remedy is available before the ordinary civil court by filing a suit therein.”

Setting aside the order, the court directed the family court to return the plaint to the plaintiff enabling him to present the same before the appropriate civil court, having jurisdiction, within 30 (thirty) days from the date of return of the plaint.

Read Judgment and Order:

The Central Information Commission has pulled up RBI Governor Urjit Patel for non-disclosure of the names and details of action taken against willful defaulters of big bad loans worth hundreds of crores of rupees.

The Commission on Friday also directed the CPIOs of the RBI, the PMO and office of the Finance Minister to explain the action taken on the ‘alerting letter’ written by former Governor of RBI Raghuram Rajan on February 5, 2015, before November 16, 2018.

While considering an appeal filed by Sandeep Singh Jadoun who had sought details about willful defaulters, Central Information Commissioner Sridhar Acharyalu observed: “The Commission finds no merit in hiding the names of, details and action against willful defaulters of big bad loans worth hundreds of crores of rupees. The RBI shall disclose the bad debt details of defaulters worth more than 1000 crore at the beginning, of Rs 500 crore or less at later stage within five days and collect such information from the banks in due course to update their voluntary disclosures from time to time as a practice under Section 4(1)(b) of RTI Act.”

Considering the RBI Governor as ‘deemed PIO’ responsible for nondisclosure and defiance of SC orders and CIC orders, the Commissioner directed him to show cause why the maximum penalty should not be imposed on him for these reasons, before November 16, 2018. The CIC also asked the concerned administrative officers of the Central Information Commission to explore possibilities enforcing the orders of Information Commissioner Shailesh Gandhi which were upheld by the Supreme Court dismissing the RBI’s appeal.

The Commission said: “If the banking regulatory like RBI will not honour the Constitutional Institutions directions, what will be the effect of Constitution on securing Rule of Law? The Commission recommends the RBI governor to remember once, at least one of the 3 lakh farmer dying in the field as he failed to sustain his crop or to sell his produce for appropriate price and hence could not pay of the debt before defying the transparency law and directions and discontinue the non disclosure policy which will seriously harm of the economy of this nation, immediately.”

The appeal is now posted on November 16^th for compliance and penal proceedings.

In the backdrop of Sabarimala temple entry issue, a petition has been filed in the High Court of Kerala alleging that the Chief Minister and Dewaswom Minister of Government of Kerala were making excessive interference in the functioning of Travancore Dewaswom Board, especially with regard to practises and ceremonies in Sabarimala Temple.

The petition is filed by T.R Ramesh, who is stated to be an ardent Ayyappa devotee and also the President of Indic Collective Trust, a trust formed to preserve Indian traditions. The petitioner states that the decision announced by the Chief Minister of Kerala that Ayyappa devotees will be permitted only 24 hours stay at the shrine amounts to interference with the day to day functioning of the temple. It is further contended that the Chief Minister and Dewaswom Minsister were issuing directions and public statements formulating modalities for entry of pilgrims in the temple. The Government has no authority of law to regulate the entry of pilgrims in the temple.

Referring to Section 31 of the Travancore Cochin Hindu Religious Institutions  Act, the petitioner states that the Dewaswom Board has to administer a temple vested with it in accordance with its 'usages'. The 'thanthri' has the final say in the matter of rites and rituals of the temples. The petitioner further contended that the Government has not been given any power under the Act to issue any directions regarding the day to day functioning of the temple. However, the Devaswom Minister himself stayed in Sabarimala to issue directions to the Board as to how to conduct themselves in religious observances.

"As per the scheme of the Act, while the administrative control falls exclusively only in the Board, most of religious, rituals, ceremonies, performances, observances, practises etc. fall exclusively within the domain of the Thantri, who is the last word on the issue", the petition stated.

It was further stated that the Government  has taken an "unusual and adamant stand" that the judgment of the Supreme Court will be implemented. The Government has no role in implementing the judgment. The petitioner has the fundamental right to undertake pilgrimage Sabarimala in accordance with its long standing rituals and practises. The petition stated that "it is possible that even a hardened man can be deviated into violating the Vritha by the presence of young women in large numbers" and voiced the apprehension that  "large influx of young women will hinder the form of worship followed for several years together and therefore some restraint on young women is needed".

It is also stated that the move to deploy about 5000 policemen in the Sabarimala area was intended to interfere with the right to worship of devotees.

"The presence of so many policemen is intended to scare away genuine Ayyappa bhakts. No restriction can be placed by the Minister on the time of stay of pilgrims as it is a matter of religion protected by the Constitution...In addition to that, the Government have no role at all to impose such restrictions on pilgrims as Government has no authority over the entry of pilgrims, form of worship etc. No direction can be issued to the Dewaswom as it is a statutory authority", the petition says.

The petition came up for admission today before a Division Bench of Justice P R Ramachandra Menon and Justice N Anilkumar. Senior Advocate K Ramkumar, appearing for the petitioner, submitted that the entire tract between Pampa and Sannidhanam is exclusively vested with the Devaswom and hence the Government had no power to deploy thousands of policemen there in the absence of any request for security cover originating from the Devaswom. He further submitted that large scale police deployment will convert Sabarimala into a battle ground where peaceful and solemn prayer will not be possible.  The Senior Counsel also submitted that the Government cannot impose any curfew in the Sannidhanam area.

Relying on the SC decision in Sri Adi Vishwesara of Kashi Temple Varanasi vs State of UP(1997) 4 SCC 606,  Ramkumar submitted that the Government cannot interfere in the religious observances of a temple. The Devaswom Board is a statutory body, having powers and functions conferred by the Act; therefore, the Government cannot direct the Board as to how it should exercise its statutory powers and functions, advanced the Senior Counsel.

The Division Bench orally observed that the Government has only got the power to maintain law and order and opined that interference with the day to day functioning of temple and Devaswom Board will be without the authority of law. The State Attorney maintained that the Government was only concerned with the law and order situation. The Court directed the Government and Devaswom to file affidavits explaining their responses to the petition. The matter was adjourned to November 12.

Read Petition

‘The aforesaid abbreviation 'VOD' is not in legal parlance but perhaps purports to mean "Vide Order Dated".’

The Punjab and Haryana High Court has directed the District Judge of Gurugram to advise all the judicial officers not to use abbreviations in official correspondence.

Justice Gurvinder Singh Gill noticed the use of abbreviation VOD in a report he received from the Judicial Magistrate while considering a criminal petition in a cheque bounce case.

It reads: “It is respectfully submitted that VOD 19.09.2018, in CRM-M-22396-2018 (O&M) titled as Dayanand Singhal Versus Sandeep Sharma, The Hon'ble Punjab and Haryana High Court has pleased to direct the trial Court to decide the application pending in the Court wherein applicant has sought to take cognizance regarding dishonour of cheque. “

The judge then observed in the order: “The aforesaid abbreviation 'VOD' is not in legal parlance but perhaps purports to mean "Vide Order Dated". The learned District & Sessions Judge, Gurugram is directed to advise all the Judicial Officers not to use such like abbreviations in official correspondence.”

Though not very common, it turns out that some other courts also use this abbreviation. Here are some examples:

• Delhi District Court: Defendant No.1 proceeded against ex-parte VOD 21.3.2016.
• Karnataka HC (in cause title): R-4 & R-5 SERVICE HELD SUFFICIENT VOD. 21.03.2012 (It seems to be very common usage in Karnataka HC judgments)
• Rajasthan HC: clarification issued by the State Government as aforesaid vod5.11
• Jharkhand HC: Expunged (V.O.D. 31.01.03)

Read the Order Here

The Bombay High Court recently revoked and recalled an ex-parte order of the high court granting probate to one Savita Patil, sister of Deepak Patil who passed away on May 26, 2011. According to Savita, she was the executor of the will wherein Pooja, the deceased’s daughter, was the sole heir.

Justice RD Dhanuka was hearing a miscellaneous petition filed by Pooja Patil seeking recall of the order granting probate to her aunt, Savita.

Case Background             

On January 25, 2012, Savita filed a Testamentary Petition praying for Letters of Administration with Will annexed dated August 8, 2009. In the said petition, Savita alleged that she was appointed as executrix according to the tenor of the alleged Will. It was alleged that the petitioner was the only heir and legal representative of the said deceased but she was mentally retarded and unfit to apply for Letters of Administration of the property of the deceased.

Savita managed to get probate on March 14, 2014 from the high court as her petition was uncontested. Thereafter, she constituted a trust on May 22, 2014 in respect of the properties and estate of the said deceased. Under the said trust deed, Savita had reserved with herself very wide and sweeping powers to deal with assets, movable and immovable properties of the deceased to the exclusion of the petitioner. Savita also sought to forward a cheque of a miniscule amount of Rs.20,000/month to the petitioner in purported compliance of her obligations under the said trust deed.

Pooja, who is currently working with Indira National School run by Shri Chanakya Education Society and is in full time employment of Rizvi College of Management at Bandra, admitted in her petition that in her growing years, she was affected by her parent’s divorce.

She stated that she got emotionally effected by her parent’s divorce and it took a toll on her studies. She was a slow learner and was advised to attend a special school. The petitioner was thus enrolled in a special school of slow learners. It is the case of the petitioner that after dissolution of the marriage of the said deceased and her mother, Jyoti relinquished all her rights in the estate of the deceased and did not make any claim and/or for alimony and/or maintenance.

Jyoti Patil, the mother of the petitioner thereafter filed a Mental Health Petition in the City Civil Court at Bombay seeking custody of the petitioner. During the proceedings before the City Civil Court, the petitioner expressed her desire to live with her mother in Pune. The petitioner thereafter shifted her residence to the house of her mother in Pune and continues to live there till today.

In the said proceedings filed by Jyoti, the City Civil Court directed that an IQ test be conducted on the petitioner by the JJ Hospital. A certificate was issued after conducting the test, it was stated that during the mental status examination, the petitioner was found to be conscious, cooperative, communicative, coherent, relevant, intelligence subnormal, judgment intact as well as insight present.

The said certificate did not mention or state that the petitioner was in any manner incapacitated to look after her personal affairs as well as that of the estate of the deceased father.

Judgment

Petitioner’s counsel Dr. Birendra Saraf submitted that Savita did not have the locus to file a testamentary petition, his client, the sole heir did. He also informed the court that even if Savita’s argument that Pooja was mentally retarded and not in a position to govern the affairs of her father’s state, she was mandatorily required to follow procedure under Order XXXII Rules 1 to 14 of the Code of Civil Procedure, 1908.

Saraf submitted that without following the said procedure Savita could not have proceeded with the testamentary petition and could not have obtained probate in the testamentary petition. Savita ought to have applied for the appointment of a guardian of the petitioner, he said. He submitted that the order of granting probate is thus void in view of non-compliance of the provisions of Order XXXII Rules 1 to 14 of the Code of Civil Procedure, 1908.

The court noted –

“In view of the petitioner being the only legal heir and representative of the deceased Mr.Deepak Vasantrao Patil was thus entitled to be served with citation of the application filed by the respondent no.1 for Letters of Administration or for probate under Rule 397 read with Rule 399 personally. Neither the petitioner had given any consent for waiver of such citation nor consent for grant of Letters of Administration or probate in favour of the respondent no.1. Since the respondent no.1 did not serve the citation upon the petitioner in the said testamentary petition in the mode and the manner prescribed under Rules 397 to 399 of the Bombay High Court (Original Side) Rules, 1980 or otherwise, the grant of probate issued in favour of the respondent no.1 deserves to be set aside on this ground alone.”

As regards to the mental capacity of the petitioner, Pooja Patil, the court had interviewed her and found her to be of sound mind. The court said-

“In my view, there is thus no necessity to refer the case of the petitioner again to any medical authority and to submit any report regarding her present status of her state of mind or to verify whether the petitioner is suffering from any mental retardation today. Various authorities including the Civil Court has already rendered several findings in favour of the petitioner certifying that the petitioner being a normal person and is capable of handling her affairs and can control and manage the properties. It is not in dispute that the petitioner has been operating her bank account.”

Noting that Savita Patil had acted fraudulently, the court allowed the petition seeking recall of order granting probate and imposed a cost of Rs.1 lakh on Savita payable to the petitioner.

“In this case, in my view, the respondent no.1 had acted fraudulently by making a false suggestion that the petitioner was mentally retarded and was not in a position to give her consent. The respondent no.1 also suppressed various true and correct facts even at the stage of obtaining such grant of probate ex parte.”

The Chief Justice of India Ranjan Gogoi has taken up the issue of Centre splitting up Collegium recommendations by withholding assent to certain names selectively, reports the Economic Times. As per the ET Report, the CJI has raised the issue with the Prime Minister.

“The splitting up of recommendations is a matter of serious concern, and the CJI has taken it up with the PM,” an unnamed source revealed to the Economic Times. The SC Collegium under CJI Gogoi has reportedly decided to review all cases where the names cleared by it were held back by the ministry, and also those proposals which were reiterated but are still pending with the government for issuance of warrant of appointment

The latest instance of Centre's segregation of Collegium proposal is Advocate P V Kunhikrishnan, who was recommended by the SC Collegium for appointment as judge of High Court of Kerala. On October 9, the Collegium had forwarded five names for appointment as judges in the High Court of Kerala. The notification issued by the Centre on November 1 however dealt with appointment of only four judges, conspicuously omitting the name of P V Kunhikrishnan.

This happened with proposals for Delhi High Court as well, when the Centre withheld clearance of Senior Advocate Manoj Ohri’s name while accepting four other names who were jointly recommended along with Ohri by the Collegium.

The most glaring instance of segregation was that of Justice K M Joseph.  His name was recommended for elevation by the SC Collegium in January 2018 along with Justice Indu Malhotra. Three months later, the Centre accepted the name of only Justice Indu Malhotra. Justice Joseph's appointment was notified on August 3, after the SC Collegium reiterated his name.

In 2014, the Government had split up Collegium recommendations by withholding assent to proposal of Senior Advocate Gopal Subramanium. The then CJI R.M Lodha had criticised the Government for dropping the name of  Gopal Subramanium from the list of Collegium recommended judges. Justice Lodha felt that the Government dropped Gopal Subramanium’s name without consulting the Collegium.  But before the Collegium could reiterate his name, Gopal Subramanium withdrew his consent.

CJI Gogoi has also taken up the issue of Centre sitting over Collegium recommendations for months, and in some cases years. Last Friday, the CJI said in open Court that about 39 names were awaiting clearance from Centre. The CJI also added that he will address this issue on the administrative side. The remarks of the CJI came while hearing a PIL filed by NGO Common Cause seeking to direct the Centre to clear the pending recommendations.

An example of Centre's delay is the case of Justice Surya Kant Shukla, who was recommended for appointment as CJ of Himachal Pradesh HC in January 2018. The Centre notified the appointment only after nine months.

At the same time, the Centre acted with promptness in case of recommendations of four CJs- Justices Hemant Gupta, Subhash Reddy, M R Shah and Ajay Rastogi- for elevation to SC last week. Within 48 hours of SC collegium recommendations, the Centre notified their appointments. The CJI commented later that he was surprised by the speed with which Government acted.

There are also several instances where the Centre has acted against the rule that a name re-recommended by the Collegium should be compulsorily cleared by the Centre.

The names of Bashrat Ali Khan and Mohammed Mansoor were recommended by SC Collegium for elevation as judges of Allahabad High Court in 2016. Centre pointed out certain allegations against them. However, they were found to be frivolous by the Collegium, and their names were reiterated within few days. After sitting over the files for nearly two years, in June 2018, the Centre rejected the reiteration of Bashrat Ali Khan and Mohammed Mansoor, in clear violation of law laid down in Second Judges Case.

On April 19, the Centre made outright rejection of the Collegium's reiteration of the proposal to make Justice Ramendra Jain a permanent judge of Punjab & Haryana High Court. Instead, it merely extended the term of Justice Ramendra Jain, in blatant disregard of the law laid down in Second Judges Case that Collegium's reiteration of proposal is absolutely binding on the Centre.  Justice Jain was finally made permanent by the Centre on October 8.

Also, the names of Mohammed Nizamuddin and Harnaresh Singh Gill were recommended  by Collegium for appointment as judges of Calcutta High Court and Punjab & Haryana High Court, respectively. Ignoring Collegium's proposals, the Centre rejected them, without assigning any reasons.  Harnaresh Gill's name was re-recommended by the Collegium on August 1, stating that the centre returned his name without stating any reasons. But the centre is yet to act on the re-recommendation.

CJI Ranjan Gogoi looks determined to address these issues.

Former chief of the Censor Board of Film Certification Pahlaj Nihalani has filed a petition before the Bombay High Court seeking quashing of cuts ordered by CBFC in his film Rangeela Raja starring Govinda.

Petitioner, who has produced the Govinda starrer, has stated that he plans releasing the film on November 16 and due to last-minute cuts ordered by CBFC, he will lose a lot of money. He has alleged that said cuts were mala fide in nature and that none of the scenes that have been ordered to be deleted were vulgar in nature.

Nihalani alleged that a dialogue regarding Shri Ram has been removed in the said cuts and the same has been done because of the upcoming general elections in 2019 as building the Ram Temple in Ayodhya is an election agenda. He alleged that the cuts were ordered at the behest of current chief Prasoon Joshi who is a political appointee of the BJP government. He stated:

“The name of God Shree Ram have been used by the Petitioner, the same has been used in a very corrective manner however, only because the elections are coming forward, the Respondent No.2 whose Chairman has been appointed politically, have raised the issues in respect thereof.  The Petitioner states that in short, the entire machinery of the Respondent No.2 is acting with malafide intentions.”

Thus, the petitioner has sought the letter dated November 2, 2018, ordering cuts to be quashed and prayed for a U or U/A certificate to be granted to the film. Nihalani has also sought the appointment of a committee to see the film and forward their suggestions to the court.

Advocate Ashok Saraogi is appearing on behalf of Nihalani.

Read the Petition Here

The Historical context of RBI reveals that its autonomy is not a myth. The central bank under the RBI Act, 1934 may not be as autonomous as US Federal Reserve System, yet it is far from being a mere governmental stooge.

The ongoing tussle between the Central Government & the Reserve Bank of India indicates the tumultuous times that we live in as also the institutional skepticism we are heading towards.

Ever since the news of government invoking (or initiating the process) Section-7 Reserve Bank of India Act, 1934 broke, debates have started on whether the government is trying to sabotage the institutional independence of the RBI, or whether the interference under Section-7 is actually subterfuge to protect those closely linked with the party in power. Alternatively, others argue that the Reserve Bank of India, unlike its US counterpart, does not enjoy the absolute autonomy.

The basis for the allegation against the Central Government is not completely unfounded. A study conducted by Prof. Kunal Sen in 1996 found “a distinct increase in both the budget deficit and in its monetisation in the years leading to an election” while another found "a pattern of policy manipulation that points to election-year targeting of special interest groups possibly in return for campaign support, as opposed to populist spending sprees to sway the mass of voters.”

Easily blurred between these sharply divided positions is the vexed issue of law i.e. RBI autonomy and the extent to which the government interference is legally permissible.

Foundational Intent in RBI’s Conception;

The argument that the RBI does not inhere autonomy and has it only within the “framework of the Act” is an assertion that lacks perspective, both historically and factually.

In 1926, the Hilton &Young Commission recommended the setting up of an institution- the Reserve Bank of India - to be entrusted with pure central banking functions; essentially taking over the role of Central Bank which hitherto the Imperial Bank had been performing. The Imperial Bank was to be left free to do only commercial banking business. This transition was to take place as per the recommendations of the Hilton Young Commission in 1926.

The renowned economist John Maynard Keynes deposed before the Commission as following:

 “I conceive a central bank as independent of the government in the sense...that it is an organ of the government on a level of authority with the Treasury.”

“The Bank, though ultimately dependent on the State, would lie altogether outside the ordinary Government machine; and its executive officers would be free, on the one hand, from the administrative interference of Government and free also, on the other hand, from too much pressure….where this might run counter to the general interest.”[1]

The Hilton Young Commission after analyzing submissions made by stakeholders observed :

“To eliminate the danger of political pressure being exercised upon the Boards of the Reserve Bank, it is desirable to introduce a provision in its charter directing that no person shall be appointed President….. if he is a member of the Governor-General’s Council, Legislative Assembly, or of any Provincial Governments or Legislative Councils.. “

 “ Banks, and. especially Banks of Issue, should be free from political pressure, and should be conducted solely on lines of prudent finance.” –“In the spirit of these resolutions, care should be taken to assure….only a small minority of the Board shoxild be nominated by Government”.[2]

 The Commission thus clearly observed a possible conflict of interest and envisaged a co-ordination based approach between the Reserve Bank and the Government on most functions and still grounded autonomy for the RBI for certain key roles. What then is the sphere of autonomy of the RBI, that government should not breach, at least in principle if not in law?

 “Such a constitution will leave- the Reserve Bank free from interference from the Executive in the day to day conduct of itsbusiness and in banking policy, a condition which we consider of paramount importance.

 “The Reserve Bank’ s principal function being to rediscount bankable bills held by the commercial banks, it is desirable that the Boards of the Reserve Bank should exercise their unfettered 'discretion in accepting1 or rejecting- such paper..”

The Commission clearly envisaged a structure in which certain crucial were to be beyond the pale of the executive government. Seen in this light, it becomes clear that even if the scheme of the RBI Act, 1934 is not based on absolute autonomy to the central bank, it nevertheless bases the foundation of the Reserve Bank on planks of specialization-based autonomy.

Power under Section-7 of the RBI, Act, 1934; Structured or Unfettered?

The draft Section-7 laid down by RBI before the central government was drafted after combining the provisions of Section 4(1) of the Bank of England Act, 1946, and Section-9 of the Commonwealth Bank of Australia Act, 1945.

Section-4 (1) of the Bank of England Act,1946 reads as follows:

“The Treasury may from time to time give such directions to the Bank as, after consultation with the Governor of the Bank, they think necessary in the public interest.”[3]

Section-9 (2) of the Commonwealth Bank of Australia Act, 1945

The document (History of RBI) notes that the Governor considered it desirable to make it clear in the Act itself that when the Government decided to act against the advice of the Governor, they took the responsibility for the action they wished to force on the Bank, like in the Australian model.

However, the government did not accede to this suggestion and removed the ‘responsibility’ clause from the Australian Act retaining, only the direction clause from the English Act.

Section-7 of the Reserve Bank of India Act, 1934 thus reads as follows:

2) “Subject to any such directions, the general superintendence and direction of the affairs and business of the Bank shall be entrusted to a Central Board of Directors which may exercise all powers and do all acts and things which may be exercised or done by the Bank.”

The two crucial phrase governing the dynamic between the Central Government and Reserve Bank under section-7(1) are; i) consultation with the Governer & ii) “necessary in public interest.”

The prior consultation with the Governor was to ensure that Government got the benefit of the Governor’s views on matters of importance to the country.

The burning issue that remains to be settled is as to what does the phrase “necessary in public interest”. In other words, can the government under fig leaf of ‘public interest’ thwart the foundational autonomy of RBI?

 The issue of Section-7 first came up during an Allahabad High Court hearing on a case filed by Independent Power Producers challenging an RBI circular issued on 12 February.

The petitioners (Power-generation corporates) alleged that the circular violated fundamental rights completely ignoring the sectoral concerns of the power industry. The petitioners termed the RBI circular as ‘sector-agnostic’ as it did not contemplate the ground realities of different sectors and treated them alike. Standing Committee reports were cited to prove the problems of the power sector which required and individualistic approach.

On one hand the court had the RBI circular which laid down the policy clearly, while on another it had the public interest that would suffer if the power-corporations were to be held accountable. The court recognized the conflict and ordered the government to start consultative process under section-7, RBI Act,1934.

To the naked eye, it may appear to be an instance of court recognizing Centre’s power to fetter RBI’s autonomy & discretion. However, in reality the court has actually, and perhaps for the first time, recognized the limitations on center’s power to fetter RBI’s autonomy. The Chief Justice Dilip B. Bhosale observed:

“It is true that sub-section (1) of Section 7 of the RBI Act empowers the Central Government to issue directions from time to time to the RBI as it may, after consultation with the Governor, consider necessary in the public interest.

 “The Central Government, however, is not expected to issue any directions, as contemplated under Section 7(1), indiscriminately or randomly. Such directions are possible when there exists sufficient material in support. I prima facie find that there exists material which deserves to be taken into consideration. The question, whether a breathing time deserves to be granted in the larger public interest and to achieve vision of power to all, needs to be answered by the Central Government.”[1]

This has two implications. Firstly, the consultative process cannot be ‘indiscriminative’ or ‘random’ as the court observes. Secondly, even after initiating the consultative process, the direction of the government must be based on some quantifiable data indicative of presence of public interest.

The court has therefore, while recognizing the Center’s power to use Section-7 has also in the same breath, remarkably so, grounded inherent limitations on the said power.

This theory is also in synch with the historical foundation of the RBI.

 Reserve Bank of India; Autonomous Institution or Governmental Stooge?

The frosty relation between the central bank and the government has led many to reflect on the functional autonomy of RBI. So far there have been three instances where the government has hinted towards initiating section-7 consultations.

The first instance was when it did so in compliance of the Allahabad High Court judgment. The second was when the government on 10 October sought the governor’s views on using RBI’s capital reserves for providing liquidity.The third instance pertained to regulatory issues, including withdrawal of Prompt Corrective Action for public sector banks, easing constraints on banks for loans to small and medium enterprises (SMEs).

The Reserve Bank of India is invested with whole range of functions. Far from the assertion that it can be divested of its autonomy is the reality that there exists a sphere of functions that the government must not encroach upon,  not without demonstrative evidence for sure.

The extent of Central Government’s power under Section-7 and other provisions of the RBI Act, 1934 is currently before a Constitution bench of the Supreme Court. The court will likely address these issues in greater detail. However, till such time as that happens, one may live with reasonable satisfaction that the apex bank of the country is not a governmental stooge, not in principle at least.

 (The author is a final year law student at Dr. Ram Manohar Lohiya National Law University)

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

[1] Independent Power Producers Association of India Vs. Union of India & 5 Ors.

[1] John Maynard Keynes, Deposition before Hilton Young Commission.

[2] Report of the Royal Commission on Indian Currency and Finance, I 926 (known as Hilton Young Commission) available at http://14.139.60.114:8080/jspui/bitstream/123456789/971/16/Royal%20Commission%20on%20Indian%20Finance%20and%20Currency%2C%201926%20%28325-457%29.pdf

[3] Section-4 (1), the Bank of England Act,1946 available at https://www.legislation.gov.uk/ukpga/Geo6/9-10/27/section/4