Tag: #SupremeCourt

S.no	Contents
1.	Facts of the Case
2.	Issues of the case
3.	Rationale
4.	Judgment
5.	Generalis Specialibus Non-Derogant

Year

1958

Case No.

122 of 1958

Equivalent Citation

1959 AIR 396

Date of Judgment

12/12/1958

Court

The Supreme Court of India

Bench

Chief Justice Sudhi Ranjan Das, Justice Natwarlal H. Bhagwati, Justice Bhuvneshwar P. Sinha, Justice K. Subbarao, Justice K.N. Wanchoo.

Introduction

Certain privileges are being provided to the parliament collectively as well as individually so that they can effectively discharge their functions without any kind of hesitation. Article 105[1] deals with the power and privileges of the house of parliament whereas Article 194[2] deals with the power and privileges of the house of Legislators. The case of Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Others[3] not only deals with the conflict between the legislator and the court but also between the legislator and a citizen. In the Judgment part of this case, it was held by the court of law that the legislative assembly does have the power to regulate the publication of debate and other proceedings. However, this act might curtail an individual’s Fundamental Rights i.e. Right to Freedom of Speech[4], in this case, analysis, we will critically analyze why the court has given such implications and what is the validity of such implications.

Facts of the Case

In the case, the petitioner M.S.M. Sharma was a journalist at the “Searchlight” which was an English Newspaper operated in Patna, Bihar. On May 30, 1957, one of the members of the Bihar Legislative assembly whose name was, Maheshwar Prasad Narayan Sinha delivered a speech in Bihar Legislative Assembly in his speech he made some statements regarding Mahesh Prasad Singh that he was the one who guided the Chief Minister in the selection process of the other ministers and he also cited certain instances of favouritism. Further, it was alleged by Maheshwar Prasad Narayan Sinha in his speech that ministers were not given the proper ministries to which they were entitled and for which the conventional process should have been followed for the appointment. Many other instances regarding corruption were mentioned by him in the speech, he took the example of the District Judge who was only transferred from one place to another but was not discharged as per the advice of the Chief Justice of the High Court, Bihar. Further many other instances were discussed by him which were regarding the corruption and criticism of the prevailing government.

The Speaker of the assembly held that the part of the speech made by Maheshwar Prasad Narayan Sinha was objectional and directed it to be expunged. However, no specific directions were given to the Press, the speaker meant by saying this that the publication of the part of the speech which criticized the government must not be made.
On May 31, 1957, the part of the speech that was expunged by the speaker and was directed by him that publication of these parts must not be done, was published by the newspaper “Searchlight”. On 10th June 1957 Nawal Kishore Sinha, a member of the state legislative assembly questioned the same in the assembly. The matter was soon transferred to the Privilege Committee. After the evaluation of the entire facts for almost after more than a year on 18th August 1958 M.S.M. Sharma was summoned before the Privilege Committee and was asked to reply as to why an action against him must not be taken as he has done the breach of subsisting privileges. Further, the proceeding regarding the breach of privilege was initiated against the editor. M.S.M. Sharma moved to the court under Article 32 of the Indian Constitution for quashing the said proceeding and he raised the question was whether the said privilege under Article 194 was subject to the Fundamental Right under Article 19(1)(a)[5].

Issues of the case

1. Does the legislative assembly have a power under Article 194(3) of the Indian Constitution to prohibit the publication of the statement which is being done publicly in the house?
2. Do the legislative assembly privileges under Article 194 of the Indian Constitution prevail over the Fundamental Rights guaranteed by the Indian Constitution specifically Freedom of Speech and Expression?[6]

Rationale

Arguments from the Petitioner’s side:

• The notice issued by the committee and the proceeding initiated by them violates his fundamental right under Article 19(1)(a) of the Indian Constitution as well as it violates his personal life and liberty assured under Article 21 of the Indian Constitution.
• They further argued that as the petitioner of the newspaper petitioner is entitled to Freedom of the Press.
• The notice which was issued by the privilege committee was invalid as the Chief Minister of Bihar was the chairman of the Privilege Committee.

Arguments from the Respondent’s side:

• The respondent relied on the Article 194 of the Indian Constitution.
• They argued that the state legislative assembly can exercise similar powers, privileges, and immunities as the British House of Commons, where the proceedings of the assembly cannot be published.
• They further argued that the part of the speech which was directed to be expunged cannot be published by anyone under any circumstances as it was expressly prohibited.
• If a such publication is being made which was being prohibited then such publication is a breach of the privileges of the Assembly.

Judgment

The court of law held that in accordance with Article 194(3) of the Indian Constitution, the state legislative assembly of Bihar does have the same immunities, privileges and power as the British House of Commons. It was said that since Bihar legislative assembly did not have passed any law concerning the power, privileges, and immunities of the legislative assembly and hence legislative assembly of Bihar will enjoy similar power privileges, privileges, and immunities as that of the British House of Commons. In the British House of Commons, there is a framed order that no member shall give a copy or publish any kind of stuff that has happened during the preceding of the House i.e. no publication of the statement must be made that has taken place in the House. Therefore while dealing with the issue of publication regarding the proceeding of parliament or the legislative assembly the law and order of the British House of Commons should be taken into the consideration.

The petitioner said that Article 194(3) is curtailing his Fundamental Rights under Article 19(1) (a) the court has interpreted this question of has concluded that the legislative privilege under Article 194(3) does not abridge the Fundamental Rights guaranteed by the Indian Constitution under Article 19(1) (a) and explanation regarding the same was given. The court of law said that in (1) it is being mentioned that “subject to the provisions of the constitution” whereas in clauses (2) to (4) it has not been stated as subject to. Therefore it can be assumed that Constitutional makers did not intend that that clause should be subject to the provisions of the Indian constitution and hence Article 194(3) does not breach the Fundamental Rights which are guaranteed by the Indian Constitution. Further, the court of law stated that if any provision of the Indian Constitution takes away or abridges the Fundamental Right then in that case it is a violation of Article 13 and the provision that violates the Fundamental Right must be void. But, since Article 194(3) is perfectly valid it can be inferred that it does not violate Article 13 of the Indian Constitution.

However in this case the dissenting opinion was given by Justice Subbarao he quotes the case of Gunupati Keshavram Reddy v. Nafisul Hasan[7] and said that Article 194(3) is subjected to Part III i.e. Articles 12 to 35 which deals with Fundamental Rights.

Generalis Specialibus Non-Derogant

The meaning of above stated legal maxim is – where there is a special right, general rights will not be applicable. From the above discussion, we can infer that the Parliamentary Privileges or the State Legislative Privileges are special rights, and in case the Fundamental Rights are the General Rights. In the case of Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Others[8], this was one of the key areas where consideration could have been taken and to a certain extent, it was taken. Therefore, the general principles or general rules won’t be applicable in cases where there is a special right. The same was with the condition of Article 194(3) these are the special rights that are being given to the parliament for their effective and efficient working so that they can effectively discharge their functions. And the Fundamental Rights given under 19(1) (a) is the general right that is not applicable in the circumstances in which there is a special privileges/rights and the fines example of the situation is the case of Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Others[9].

In the case of Azad Transport Co. v. State of Bihar it was considered that the VAT is a special provision and rules in CrPC are considered to be general.

Conclusion

From the above discussion and the analysis of facts, issues, and the judgment of the case it can be said that the court in its majority decision tries to establish the harmonious construction between the prevailing Fundamental Rights and the privileges given to the parliament and the state legislature. The significance judgment of this case is of paramount importance as it serves as the judicial precedent after this particular case. After the decision was delivered by the court, the assembly was prorogued several times and the privilege committee was reconstructed which issued a fresh notice of petition in the court of law against M.S.M. Sharma. As a result, M.S.M. Sharma moved to the court seeking to reopen the same issue. The court held that the principle of res judicata is applicable in this particular case and held that the matter is already decided which is binding on the petitioner.

However, one question remained open in this case and that was whether Article 21 is being affected because of the privileges given to the parliament or state legislative. The question regarding the subjection of Article 19(1) (a) was solved by the court of law i.e. Article 19(1) (a) is not subject to the privileges. But the court of law failed in this case to answer the question relating to Article 21, whether it overrides the privileges or not.

---

Endnotes

1. INDIA CONST, art. 105
2. INDIA CONST, art. 194
3. Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Others, 1959 AIR 396
4. INDIA CONST, art. 19(1)(a)
5. Supra note iv
6. Ibid
7. Gunupati Keshavram Reddy v. Nafisul Hasan, AIR 1954 SC 636
8. Supra note iii
9. Ibid

This case analysis is authored by Prashant Prasad, a second-year law student from University Law College.

-Report by Sejal Jethva

The parties involved in this case are SUBHASH SOLANKI (Appellant) and DELHI URBAN SHELTER IMPROVEMENT BOARD & ORS. (Respondents). The appellant is allegedly occupying the store illegally and it is claimed that he continued to run his business out of the aforementioned shop after his father passed away and that no one else took over the operation.

FACTS:

The business in dispute was reportedly given to the appellant’s father in 1976 when he was just 14 years old. According to the claim, the appellant was not aware of the terms and circumstances of the allotment at the time of his father’s death in 2009, and as a result, he was unable to submit an application to change the name of the business in question as his father’s legitimate heir. According to the claim, the father of the appellant died away on July 1, 2010, and that day the Delhi Urban Shelter Improvement Board was established.

It is claimed that the appellant kept operating his company out of the aforementioned shop following the death of the father and that no one else took over the operation.

APPELLANTS CONTENTION:

The skilled attorney for the appellant claims that just a possession slip has been given to the appellant’s father in relation to the store in question, and no official allocation letter has been issued in his favour. It is argued that the appellant was unable to request a shop’s modification since he was not aware of the terms and circumstances of the allotment.

The knowledgeable Attorney for the Appellant further asserts that there is no disputing the fact that the Appellant’s father owned the store in question, hence the DUSIB had no difficulty transferring ownership of the shop to the Appellant.

The learned attorney representing the appellant claims that the DUSIB’s policy should be to grant mutation in favour of the legal heirs if there is no dispute regarding who is the initial allottee’s legal heirs so that they can make a living from the store or property that had been allocated to the initial allottee.

RESPONDENTS CONTENTION:

In contrast, Mr. Parvinder Chauhan, knowledgeable Counsel representing the DUSIB, argued that not only had it been established that the original allottee had entered into an agreement to hire or transfer the appellant to the shop in question, but also that the shop had undergone significant unpermitted construction. The knowledgeable attorney for the DUSIB further notes that shop No. 38, which is currently occupied by the appellant, was also discovered to have been amalgamated with shop No. 37, which is obviously against the terms of allotment and the policy under which the shop was initially allotted to the allottee.

The knowledgeable Attorney for DUSIB also asserts that following the death of his father, the appellant never requested a formal allocation of the store in issue from the authorities.

The evidence on file demonstrates that the Appellant was the subject of proceedings under Sections 41/42 of the DUSIB Act, 2010 for eviction from the aforementioned store. Records show that the in-issue store was given on a licensee fee basis and that the sale or purchase of the shop was prohibited under the terms and circumstances.

JUDGEMENT:

1. The appellant in this case currently resides in Shop No.38 Block-4, Dakshinpuri Extn., New Delhi, and his wife Meena Solanki currently resides in Shop No.37 Block-4, Dakshinpuri Extn., New Delhi. According to documents, one Sh. Ram Lal S/o Sh. Giasi Ram was given this business on a licensee fee basis in 1976. The sale or purchase of the shop is prohibited under the terms and conditions. During a study by the DUSIB survey unit, it was discovered that the shop had been sold to the original allottee, that it had been combined with Shop No. 37, and that there had been extensive unlawful development up to five floors and encroachment on departmental land. The store is being illegally occupied by

2. The learned Single Judge declined to overturn the authorities’ contemporaneous conclusions. The following are the briefly listed requirements for allocation:

1. “a) The sole basis for the allocation was a license;
2. The allotment was made for commercial use and not for residential purposes;
3. the allottee(s) do not have any right to transfer, alienate, or in any other way dispose of the allotted shop(s) in favour of a third party;
4. the allottee(s) do not have any right to carry out structural additions or alterations in the premises without prior written permission from the DUSIB; and
5. as a matter of public policy

3. As a result, the appeal is rejected together with any outstanding applications, if any.

READ FULL JUDGEMENT: https://bit.ly/3ZWH881

-Report by Karan Gautum

Heard Ganesh Datt Mishra, learned counsel for the petitioner and Sri B.N. Pathak, learned standing counsel for the state-respondents.

FACTS

The petitioner is an educational institution run by a society registered under the Society Registration Act, 1860, and Ram Yagya Chaudhary executed a registered gift deed of his agricultural land in favour of the petitioner’s institution on 20.9.2016. However, the Assistant Inspector General (Registration) reported that the gift deed was undervalued and the valuation was not shown on the market value. The dispute was referred to the Collector and the petitioner filed an objection. Stamp Case No.27/281/D-2016171404706 (State vs. Ram Yagya Tara Devi Chaudhary Inter College) was registered under Section 47A of the Stamp Act. The petitioner challenged the order dated 29.5.2017 and filed a Writ Petition No.3447 of 2018, granting interim protection to the effect that further recovery in pursuance of the impugned order shall remain stayed and the revision shall be decided by respondent no.1 within a period of 6 months.

PETITIONER’S CONTENTION

This Court passed an interim order granting four weeks’ time to file the counter affidavit and two weeks to file the rejoinder affidavit. It also directed the petitioner to deposit 50% of the deficient stamp amount, which in the instant case is to the tune of Rs. 4,21,500/- and the sum of Rs. 1,00,000/- towards the amount fixed under the head of penalty, within one month from today. Any amount already deposited by the petitioner shall be adjusted towards the amount directed to be deposited. The petitioner submitted that the demand of deficient stamp duty by the respondent authorities is illegal, as according to the provisions of Section 47-A of the Indian Stamp Act, the value of the property as provided under Article 33 of Schedule I B of the Stamp Act will be applicable and the deficiency determined by the respondent nos. 1 & 2 based on market value is illegal. Counsel also submitted that the impugned orders be set aside and the writ petition be allowed.

RESPONDANT’S CONTENTION 

B.N. Pathak, learned standing counsel, submitted that the impugned order has been rightly passed and that the rate for the agricultural plot cannot be fixed for payment of stamp duty. He also cited Sections 27 & 47-A of the Indian Stamp Act to demonstrate that the power has been rightly exercised by the respondents against the petitioner. He submitted that no interference is required in the matter and the writ petition is liable to be dismissed. The Court has held that on the ground of the future potential of the property, the stamp duty cannot be imposed in respect of the property in dispute. The true test for determination by the Collector is the market value of the property on the date of the instrument, as every instrument is required to be stamped before or at the time of execution.

JUDGEMENT

The judgment of a learned Single Judge of this Court in Writ Petition (C) no. 66621 of 2010, Sumit Gupta vs State of U.P. and others, states that there is a difference in the language used in Article 33 of the Schedule I-B of the Act and Section 47-A of the Act when levying stamp duty on a gift-deed. The legislature has deliberately used the word “value of the property” in Article 33 while subjecting the gift to stamp duty and has refrained from using the term “market value”. This means that when the market value is not at all relevant, the provisions of the Act do not come into play which necessitates the determination of market value. This court has followed the earlier judgment of AWC 1087, Ram Khelawan alias Bachcha Vs State of U.P. and Shiva Dutt Mishra Vs. Commissioner Gorakhpur Division and 2 Others on the point of imposition of stamp duty on the gift deed in respect to the agricultural plot. Paragraphs 5,6 and 7 of these judgments.

READ FULL JUDGEMENT: https://bit.ly/3LpwS3J

CITATION: WRIT – C No. – 43196/2018

-Report by Anurag Sinha

As part of a petition contesting the blood donor standards, the Union Ministry of Health and Family Welfare has filed an affidavit challenging the guidelines’ outright restriction on transgender people, gay males, female sex workers, and others donating blood.

It has been reported that the National Blood Transfusion Council (NBTC, an organisation made up of medical and scientific professionals) is responsible for determining which groups of people are barred from being blood donors and that this conclusion is grounded in data from scientific studies.

The affidavit begins by arguing that the petition’s concerns are within the purview of the executive and must be evaluated from the perspective of public health rather than individual rights.

Facts:

The Public Interest Litigation by a member of the Transgender community. Thangjam Santa A lawsuit against Singh, represented by lawyer Anindita Pujari, was filed in federal court “Under the auspices of the Central Health Ministry, the National Blood Transfusion Council and the National Aids Control Organization released their 2017 Guidelines for Blood Donor Selection and Blood Donor Referral in October.

Guidelines clauses 12 and 51 exclude transgender people, gay males, and female sex workers from donating blood since they are a high-risk group for contracting HIV/AIDS. The Ministry now claims in its affidavit that there is sufficient information to show “HIV, Hepatitis B, and Hepatitis C diseases pose a threat for transgender people, men who have sex with males, and female sex workers. It claims that the petitioners haven’t contested the exclusion of people at risk for HIV, Hepatitis B, or Hepatitis C infections, but rather the inclusion of transgender people, gay males, and female sex workers in the ‘at risk’ category. The affidavit responded to the challenge by citing the following academic papers in an effort to back up its assertion that the named persons were, in fact, at risk.

Two gay men from Hyderabad have filed a new public interest litigation (PIL) with the Supreme Court of India, arguing for the legalisation of same-sex marriage in India under the Special Marriage Act of 1954.

Our Chief Justice DY. Chandrachud will preside over a Supreme Court bench today.

Supriyo Chakraborty and Abhay Dang, the petitioners, have been in a relationship for over a decade. Because of the epidemic, both couples and their families were reminded of life’s fragility. They were both infected with COVID during the second wave. As soon as they felt well, they made plans to celebrate their 9th anniversary with family and friends by having a wedding-cum-commitment ceremony. In December 2021, they conducted a commitment ceremony when their loved ones gave their approval to their partnership.

Plaintiff’s Contention:

Petitioners argued that the Special Marriage Act violates India’s constitution because it treats same-sex couples differently than those of the opposite sex by denying them the legal protections, social recognition, and legal standing that come with marriage. The petitioners state that the Indian Supreme Court has historically upheld the freedom to marry anyone regardless of caste or religion. The constitutional movement towards same-sex marriage is an extension of this trend. As the Supreme Court has already ruled in the Navtej Singh Johar and Puttaswamy cases that LGBTQ+ people have the same rights to equality, dignity, and privacy as any other citizen, the Petitioners contend that the right to marry the person of one’s choice should also apply to LGBTQ+ people.

Judgement:

The Special Marriage Act, Foreign Marriage Act, and Hindu Marriage Act have all been challenged in nine separate cases before the Delhi High Court and the Kerala High Court, all seeking to recognise same-sex marriage. The Ministry’s Deputy Solicitor General told the Kerala High Court earlier this month that preparations are being made to have all writ petitions transferred to the Supreme Court.

READ FULL JUDGEMENT: https://bit.ly/400UmAJ

Opportunity to work in the chambers of Dr. Sarbjit Sharma, Senior Government Counsel of the Supreme Court of India.

About Dr. Sarbjit Sharma

Dr. Sarbjit is a Lawyer, an academician, doctor of philosophy in international relations. Over the past 33 years Dr. Sharma is known for his knowledge and experience and has led complex situations of law to success stories for various matters working with domestic and international clients. Dr Sharma is representing the Union Government before various Courts as a Senior Counsel for the past several years. He specializes in matters relating to intellectual property rights, business disputes, arbitrations, settlements by conciliations. To his credit, are various books and works which he has authored and have been acclaimed by the Hon’ble President of India.

Eligibility

Freshers maybe with no experience to work with me in various Courts of Delhi. The candidate should know the basics and should be able to attend court appearances.

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Flexible

Application Process

Interested Canditates may mail their resume along with a cover letter at drsarbjitsharma@gmail.com

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–Report by Shweta Sabuji

The State of Haryana has filed the current appeals because it feels wronged and unsatisfied by the impugned common judgment and order dated 18.10.2019 issued by the High Court of Punjab and Haryana in Chandigarh, which increased the amount of compensation for the lands acquired at Rs. 2,98,54,720/- per acre with all other statutory benefits and allowed the said first appeals in part preferred by the original land owners. 

FACTS:

Under the terms of the Property Acquisition Act of 1894, a substantial portion of land in the village of Kherki, Majra, measuring roughly 58 acres, was purchased for public use. The awards were made public by the land acquisition officer. The original landowners requested that references be made under Section 18 of the Act of 1894. The reference court increased the compensation for the notification dated 13.01.2010 from Rs. 60 lakhs per acre as awarded by the land acquisition officer to Rs. 1,56,24,000/per acre. The State’s appeals against the decision and award rendered by the reference court, which set the compensation at Rs. 1,56,24,000, were ultimately dismissed.

But by the impugned judgment and order, which considered the compensation amount increased by the High Court and modified by this Court to Rs. 2,38,00,000/per acre concerning the lands acquired in January 2008 and granted a 12% cumulative increase, the High Court has partially allowed the appeals raised by the landowners and determined and awarded the compensation at Rs. 2,98,54,720. The State of Haryana has filed the current appeals because it is unhappy with the impugned decision and order made by the High Court that determined and awarded compensation for the lands acquired via a notification dated 13.01.2010 at Rs. 2,98,54,720 per acre.

PLAINTIFF CONTENTION:

While calculating the compensation at Rs. 2,98,54,720/- per acre for the lands acquired via a notification dated 13.01.2010, Shri Nikhil Goel, learned AAG, appearing on behalf of the State, has vehemently argued that the High Court materially erred by considering and/or relying upon the judgment of this Court [State of Haryana vs. Ram Chander (2017 SCC Online SC 1869)]concerning the lands acquired.

It is argued that this Court clearly said in the decision and order it issued that the compensation figure of Rs. 2,38,00,000 per acre established by the judgment shall not be regarded as precedent in any other case. Considering this, it is argued that the High Court committed a grave error by considering the sum awarded by this Court in the decision and order given at a value of Rs. 2,38,00,000.

Furthermore, it is argued that prices for the lands were artificially raised because, concerning the community specifically, lands started to be acquired starting in 2008. Therefore, it is claimed, the High Court erred significantly by increasing the award price of Rs. 2,38,00,000 per acre by 12% for the notification of 25.01.2008.

DEFENDANT’S CONTENTION:

The learned attorney representing the landowners has argued that after the State’s appeals were rejected and the impugned common judgment and order were issued in the landowners’ appeals, the State is no longer permitted to contest the impugned common judgment and order issued by the High Court.

Further, it is argued that there was a price increase even after considering the sale instances that were provided on record from 09.03.2007 to 31.03.2008; as a result, the High Court did not mistake in approving the 12% increase on Rs. 2,38,00/- per acre. It is argued that, as of this point, no conclusive evidence nor a sale instance to the opposite has been recorded by the acquiring authority, demonstrating a decline in market value between 2008 and 2010.

JUDGMENT:

This Court made it clear in the judgment and order that it should not be regarded as a precedent. It must be observed, however, that even on the merits, this Court considered and approved the sale cases presented on behalf of the landowners between 2007 and 2008. Because the compensation amount of Rs. 2,38,00,000/- per acre for the land acquired through a notification issued on January 25, 2008,can be considered the base and the time interval between the 2008 notification and the 2010 notification, a suitable enhancement of 8% to 15% is given, which is held in the case of [Pehlad Ram Vs. HUDA; (2014) 14 SCC 778]

It will not be safe or wise to grant the cumulative increase of 12% nonetheless, especially because the purchase processes in the current case were just started in January 2008 concerning the exact hamlet. Considering the facts and circumstances of the case, as well as the sale cases that have been presented on the record, we believe that accepting a 10% increase above the original amount of Rs. 2,38,00,000 can be considered just compensation and may further the interests of justice. The market value of the land in question for the lands acquired via a notification dated 13.01.2010 will be Rs. 2,87,98,000/- per acre considering this situation. The current appeals are partially granted to the degree, and it is decided that the original landowners are entitled to compensation at a rate of Rs. 2,87,98,000 per acre together with any additional legal advantages that may be provided by the Land Acquisition Act, of 1894.

READ FULL JUDGEMENT: https://bit.ly/3RXb5S4

This article is about the evolution of women’s rights before and after the Hindu Succession Act and how it has impacted gender equality.

INTRODUCTION

Gender inequality is one of the main aspects under the law which requires a major focus. There are still a variety of issues pertaining to gender inequality yet to be addressed. One of the major areas where it is still prevalent is property rights. It is true about the very fact that many legislations have been passed with an aim to improve the status of women in society by ensuring economic accessibility as well as their rights on property. Mere passing of the legislation is not enough, the focus on implementation matters and this is one of the major reasons why inequality still exists.

The blame shall not fall on the legislative or judiciary alone. Everyone involved in ensuring equality is collectively responsible in some way or another. Even women themselves are less motivated to uphold their rights because of familial expectations, public stigma, and associated demands. Ancient laws in the country including Hindu law were too harsh on women denying them basic economic rights. A woman was always considered as someone who is always dependent either on their father or their husband. women’s claim to property was reduced by the patriarchal structure laid down by the commentaries and smritis. Male members were given the right of inheritance of the property under the mitakshara school of law. Since divorce was uncommon, women could not easily be denied their right to a place to live and support themselves after marriage. The Hindu Woman’s Separate Residence and Maintenance Act, of 1946 also formalized a woman’s right to demand separate housing and maintenance in specific situations, such as abuse or adultery.

ANALYSIS

The Hindu women’s right to property bill was introduced in the year 1937. The primary aim of this bill was to achieve equality in the matter of property by evicting all sorts of discrimination between men and women. But due to heavy opposition from the public, the bill had to be modified. The English notion known as a widow’s estate was adopted where women were given only rights along with restrictions the concept of providing women absolute rights on the property was discarded. The bill focused on giving women the right the separate property after marriage. The concept of inheriting the family’s property was removed. This act gave more clarity to attaining property from the eyes of a widow and not a woman. Thus, more problems were created in place of solving equality. This gave rise to the setting up of a Hindu law committee in the year 1941 which proposed to give more clarity on this act. Later in 1944, a second Hindu law committee was formed which adopted both property rights in marriage as well as succession.

The Hindu Succession Act of 1956 revolutionized the whole matter of inequality in property rights by demolishing the patriarchal structure of men enjoying all the rights with women having little room to claim rights. Earlier only stridhana was awarded to women before marriage in place of property. But even it did not ensure financial independence as it was limited. But the Hindu succession act ensured economic viability as well as social independence. The act removed the restriction on absolute ownership and ensured.

As the years passed, many needs emerged which were not as such addressed by the succession act of 1956. Many areas of property law have still discrimination. Therefore, the government decided to amend the act of 1956 in the year 2005 with the aim to provide more economic stability to women of the society. The Hindu Succession Act of 2005 gave women the recognition of coparcener and gave them the power to inherit property like that of a son and now there is no difference in the rights of a son and daughter. Now women even have the power to become the karta of the family which earlier only male members could hold the status. The 2005 Act addresses unfairness in inherited property, residential properties, and widows’ rights. It also safeguards the interests of some new heirs by adding them to the Class I heirs list. In fact, it ensures social justice and equality for women in a more profound way. It basically repeals the antiquated Hindu legislation that denied women the ability to own property. The community of Hindu women supports this legislation. Now even a woman member of mitakshara will be born with a silver spoon. All of her rights will be equal to those of her male equivalent. She is nevertheless subject to the same legal obligations for coparcenary property as a male. The Amendment Act of 2005 permits her to request a division of the dwelling. A widow no longer faces the restriction that barred her from inheriting her late husband’s assets if she marries again.

Landmark judgments and judicial interpretations

One of the major landmark judgments regarding the succession act was the Prakash v. Phlulvati[1] case, In fact, it ensures social justice and equality for women in a more profound way. It basically repeals the antiquated Hindu legislation that denied women the ability to own property. The community of Hindu women supports this legislation. Now even a woman member of mitakshara will be born with a silver spoon. All of her rights will be equal to those of her male equivalent. She is nevertheless subject to the same legal obligations for coparcenary property as a male. The Amendment Act of 2005 permits her to request a division of the dwelling. A widow no longer faces the restriction that barred her from inheriting her late husband’s assets if she marries again. She will be eligible for her father’s tribe and self-involved property since birth because the amendment’s main purpose was to abolish the current discrepancies between sons and daughters about their coparcenary liberties. The High Court decided that the revised clauses should be applied. In spite of this, the Supreme Court rejected the High Court’s request, stating that the Act shall apply in the future and until it is expressly stated in the statute.

Since the amendment’s primary goal was to eliminate the current disparities between daughters and sons regarding their coparcenary rights, she will be entitled to her father’s tribe and self-involved property from birth. The altered sections should be used, the High Court said. However, the Supreme Court denied the High Court’s motion, holding that the Act will continue to be in effect up until and unless otherwise specified in the act.

In a recent decision known as Vineeta Sharma vs. Rakesh Sharma[2] stated on the eleventh of August 2020, the status of women’s coparcenary rights has been switched. In this case, it was decided that regardless of when they were born—before or after the amendment—the ladies would be eligible for coparcenary status and the same liberties as sons.

The requirement that dads should be alive on the day the law was passed (09.09.2015) is not necessary. The court gave the act a “retroactive” application. The court’s decision in the Prakash v. Phulvati[1] case was overturned, granting equality to women. The court offered an option between the two viewpoints, first providing women equal coparcenary freedoms since birth and disregarding the fact that the father was still living at the time the amendment was made. Clarification was provided for all the ambiguity and confusion surrounding women’s succession rights.

Conclusion

Over time, things have changed gradually. Women in the modern day now have the same inheritance rights as sons after a gradual process. The rules that prohibited gender inequality are no longer in effect. beginning with the Mitakshara rule, which prohibited women from co-owning property and so discriminated against them. The 1956 Hindu Succession Act also fell short of social law’s standards and wasn’t gender-neutral.

With the Hindu Succession Amendment Act of 2005, which gave women coparcener status, significant changes were brought about. Even though there were conflicting legal options and a chaotic demeanour, the “Vineeta Sharma Case” provided a definitive statement on the subject at hand. The Supreme Court made its final ruling, stating that it is the responsibility of the courts and other bodies to uphold the established principles.

Citations

1. Prakash v Phlulvati, A.I.R. 2011 Kar. 78.
2. Vineeta Sharma v Rakesh Sharma, (2020) AIR 3717 (SC).

This article is written by Vishal Menon, from Symbiosis Law School, Hyderabad.

–Report by Umang Kanwat

In the present case of Vibhuti Shankar Pandey v The State Of Madhya Pradesh & Ors., the Supreme Court discusses the degree to which the Division Bench of the Madhya Pradesh High Court’s prior order can be interfered with.

FACTS:

The appellant, who felt wronged by an order the Madhya Pradesh High Court’s Division Bench had overturned, led this appeal. The order from the learned Single Judge dated which had awarded the present appellant the advantage of regularisation.

The appellant claims that he was hired in 1980 as a Supervisor under a project of the State Water Resources Department of Madhya Pradesh, on a daily rate basis. The appellant asked for the position of supervisor/timekeeper to be regularized. The applicant lacked the matriculation with mathematics requirement that was the minimal requirement for the position in question. The government eased these requirements via a circular, and the appellant requested his regularisation in the position of Supervisor/Time Keeper because he was competent for the position and had previously worked for a daily rate.

According to an order from the Chief Engineer for the Rani Avanti Bai Lodhi Sagar Project, the claim of the appellant for regularisation was denied for the following reasons: even though the appellant does not lack the necessary matriculation with mathematics credentials to be regularised, the appellant has never been appointed to a position. Furthermore, the appropriate authority never appointed him because there were no open positions at the time for regularisation.

APPELLANT’S CONTENTIONS:

The appellant based his claim for regularisation on the fact that individuals who were daily wagers but less senior to him were regularised in 1990 or earlier. While granting the writ petition, the learned Single Judge provided instructions for regularising the appellant as of the date his juniors were regularized.

RESPONDENT’S CONTENTIONS:

The State Government appealed against the petitioner’s order in the current case to a Division Bench, which upheld the State Government’s appeal. The Division Bench correctly concluded that the learned Single Judge had not adhered to the legal standard established by this Court in Secretary, State of Karnataka and Ors. v. Umadevi and Ors., as the initial appointment had to be made by the appropriate party, and the daily rated employee had to be employed in a sanctioned position. These two requirements were categorically absent in the case of the current petitioner. So, in the respondent’s opinion, the Division Bench of the High Court was correct to allow the appeal.

Secretary, State of Karnataka and Ors. v. Umadevi and Ors
The court held that precise position in this case, the issue of regularising the services of such employees may need to be evaluated on an individual basis in this particular situation. When temporary workers or daily wage earners ll vacant sanctioned positions that need to be filled, the Union of India, the State Governments, and their instrumentalities should take steps to regularise their services as a one-time measure. These individuals were irregularly appointed and have worked for at least ten years in those positions without the benet of court or tribunal orders.

JUDGEMENT:

According to the law established by the Constitution Bench of this Court in Uma Devi, the court in the current instance determined that the appellant had no grounds for regularisation. Therefore, there is no justification for the court to intervene with the Madhya Pradesh High Court Division Bench’s decision. As a result, the appeal was ultimately denied.

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–Report by Sanya Luthra

The case of Mushtaque Ahmad vs Municipal Cooperation of Delhi and Anr declares that, the weekly Bazaars can be set up and no one can claim to close them or alter them as they are set up for a particular purpose and they are following the guidelines while running and it is not the responsibility of the courts to decide where the bazaars should be set up.

FACTS OF THE CASE

It was filed as a PIL by the respondent to shift the weekly bazaar of the Shastri Park to somewhere else, it was said by the petitioner that due to this weekly bazaar, he was unable to meet his friend as he was unable to pass through that lane because of the congestion which the weekly bazaar caused and therefore he filed a writ petition as PIL and asked the supreme court to regulate weekly bazaars.

PETITIONER’S CONTENTIONS

The petitioner submits that the weekly bazaars are very disturbing as they lead to crowdy streets and any emergency vehicles, for example, the ambulance, and fire brigade cannot enter the streets due to these weekly bazaars.

DEFENDANT’S CONTENTIONS

According to the defendant, weekly bazaars are run in accordance with rules and regulations framed by the MCD and also run according to the standard operating manner which has been framed by MCD, also it was put forward by the defendant that weekly bazaars are set up for the people who couldn’t afford the things in the normal bazaar and many people come from far off places for these bazaars and if these would be closed, the ultimate purpose would be defeated, therefore the bazaars shouldn’t be closed.

JUDGMENT

It was held by the apex court that the weekly bazaars are the livelihood of many people and also migrant and poor people come from far-off places to buy goods at a reasonable price also the bazaars are operating with the standard operation process framed by the MCD and at the same time are also not violating any rules and regulations, also it is said that courts have no responsibility to monitor weekly bazaars and to see that where they should be conducted, therefore it is the responsibility of the MCD and the apex court has no say in that.

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–Report by Tannu Dahiya

Hon’ble Supreme while hearing the appeal on 8th February 2023 in the case of NATIONAL INSURANCE COMPANY LTD. Versus THE CHIEF ELECTORAL OFFICER & ORS., set aside the decision of Patna High Court made in 2017 and directed that the terms of the insurance policy should be strictly interpreted. 

Facts:

An MOU i.e memorandum of understanding was signed between the insurance company (Appellant) and Chief Electoral Officer, Bihar, Patna, on 9th Feb 2000, to cover the insurance of persons working for the Bihar Legislative Assembly Elections in the year 2000. 

Now clause 3 of the MoU mentioned that the insurance will be for the death caused by accident in extra violence and any other means. 

Now the duration of the scheme was extended from 24.05.2000 to 23.06.2000 seeing the period of the by-polls. 

The husband of respondent no.2, who was a constable died while performing his duty in Bihar Legislative Assembly. It happened during the extended time of the scheme. 

After a long time, the wife of the constable (respondent no. 2) claimed compensation in 2008.

The Assistant election officer of that time wrote to the secretary of Lokayukta, Patna, that it was not election duty but heat stroke which was the reason behind the death of the constable thus, no such compensation can be made. 

The wife filed a writ in High Court for quashing the above-said statement. The learned single judge first asked the insurance company to pay the claim but then relied on the judgement made in Lilawanti Devi v. The State of Bihar & Ors 1, which opined that the duration to make a claim has expired and it was chief electoral office liability to make the compensation. 

The chief electoral officer filed an appeal stating that it was the insurance company which should pay the compensation. The insurance company was then asked to take the liability. 

Plaintiff’s contentions

The appellant contended before the court that the chief electoral officer had already paid the claim to respondent 2 and just wanted to fasten the liability on the company. The learned counsel claimed that the death of the deceased was due to heat stroke which is beyond the scope of the MoU. The appellant insurance company was not made aware of the time issue. And was notified only after eleven years. 

Defendant’s contentions:

It was found that the chief electoral officer had already paid the claim to the wife. Also, it was clarified that the death was due to heat stroke which was beyond the scope of the MoU. The delay in raising the claim was not driven by the chief electoral officer. Its role was only till recommended, which it did. It was pleaded that the insurance company was under an obligation to honour the promise. 

Judgement :

The SC raised two aspects which need to be answered

• The result of a delay in claiming the amount
• Whether all the insurance policies covered the scenario of the death of the constable. 

To answer the first, respondent no. 2 never claimed the chief electoral officer to get compensation till 2008. Thus the claim was beyond the period. 

To answer the second, it said that the conduct of respondent no 1 would not allow them to fasten the liability on the appellant. 

The Supreme Court in its verdict said that the chief electoral officer ‘has been playing ducks and drakes’. 

The Supreme Court thus dismissed the judgement of Patna High Court calling it unsustainable. The insurance company was not liable. Also, the chief electoral officer would not recover any amount paid to the deceased wife. 

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Civil appeal no. 4769 of 2022