Tag: #SupremeCourt

Centre to Form Committee of Experts to Look into Pegasus Scandal

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The Central Government through the Union Ministry of Electronics and Information Technology filed an affidavit before the Supreme Court, which said that they were looking forward to forming a Committee of Experts, to solve the Pegasus spyware scandal.

Further, the affidavit goes on denying all the allegations that were previously made by the petitioners. It says that all the petitions filed were merely based on conjectures and surmises or on other unsubstantiated media reports or incomplete or uncorroborated material.

The Centre further stated that its role in the Pegasus scandal was already cleared in the Parliament’s Monsoon Session by Minister of Railways, Communications and Electronics & Information Technology of India, Ashwini Vaishnaw.

A lot of petitions have been filed in Supreme Counter, seeking an investigation into the controversy.

Although the Supreme Court has not given any solution to the matter, it has observed that if the reports are true then there is no doubt that the allegations are serious. “Truth has to come out, that’s a different story. We don’t know whose names are there”, CJI NV Ramana said.

The petitions are due for hearing before the Bench of Chief Justice of India NV Ramana and Justices Vineet Saran and Surya Kant.

-Report by Jayseeka Virdi

Supreme Court Issues Notice on the Issue whether Children from Second Marriages are Entitled to Inheritance

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The bench of Justices Sanjay Kishan Kaul and Hrikesh Roy issued a notice on whether the children from second marriage would have a share in ancestral property? The Special leave petition was filed against the observation of the High Court of Bombay, Nagpur Bench that the children should not inherit a share in the property of their grandmother, since they were born out of the second wife.

The Court while issuing the notice observed that a larger question relating to inheritance from second marriages is pending before the court in Ravanasiddapa & Anr vs. Mallikarajun & Ors (2011). The Court decided to hear the current petition after a judgment is delivered by a larger bench of this court.

Previous Interpretation by the Supreme Court In Bharatha Matha & Anr vs. R Vijaya Renganathan & others, it was held that children born out of void marriages were not entitled to claim the inheritance of the coparcenary property, but only a share in the self-acquired property of the father.

In Ravanasiddapa & Anr vs. Mallikarajun & ors (2011), the two-judge bench took a contrary view and it was held that the children born out of void marriages shall have an interest in coparcenary as well as the self-acquired property of the parents. Then the three-judge bench upheld the decision of the 2 judge bench regarding the share of children in their parent’s property but upheld the restriction imposed under section 16(3) of the Hindu Marriage Act, 1955. The question regarding restriction in 16(3) is pending before the Supreme Court.

-Report by GURPREET SINGH

Judicial Review

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Introduction

Judicial review is the power of the court to review or scrutinize the actions of the legislative and the executive and the judicial actions. Judiciary has the power to interpret any law and order made by the legislature and executive and if it is found unconstitutional, then the judiciary can declare any law and order void. The power of the judiciary is to review the constitutional validity of law and an order passed by a legislature and executive known as “judicial review”. High courts and the Supreme Court both have the power of judicial review. Judicial review is part of the basic structure of our constitution. Judicial review is viewed as the power of the court to set up checks and balances between the legislature and executive.

Under the Indian Constitution, parliament is not supreme. We are following the rule of law, which means the constitution is the supreme law. This power is given to the court to examine the actions of the legislature, executive, and administrative arms of government and to ensure the constitutional validity of the law.

Judicial review has two functions;

  • Legitimate government action.
  • The protection of the constitution against the intrusion of the government.

History of judicial review 

The concept of judicial review was first introduced in the United States Supreme Court. American Supreme Court has the power to review the law passed by Congress and executive orders.

In the case, Marbury v. MadisonPresident Adam belonged to the Federalist Party, which came to an end and President Jefferson came to power. On his last day, Adam appointed the judges of the Federalist Party. Jefferson was against this, so Madison, secretary of state, had not sent the appointment letter to judges. Marbury, one of the judges, filed the writ of mandamus in the Supreme Court. Court refused to entertain the plea and opposed the order of the legislature. Then the Congress and the US Supreme Court developed the concept of judicial review. 

In India, judicial review was discussed for the first time in Emperor v. BurahIn this case, the Calcutta high court, as well as the Privy Council, adopted the concept of judicial review in the Indian courts.

Constitutional provisions for judicial review 

The power of judicial review is given in the Constitution. The Constitutional provisions guarantee a judicial review. The Articles are:

  • Article 13(1) – All laws are in force before the commencement of the constitution is void if they abridge the fundamental rights.
  • Article 13(2) – The state shall not make laws which abridge the rights conferred by this part, and if any law made which contravenes this clause shall be void.
  • Article 13(3) –The law includes any ordinance, order, bye-law, regulation, and custom in India; force of law and the law in force includes laws passed by the legislature or competent authority in India which is pre-constitution and not repealed, any such law or any party shall not be operated.
  • Article 13(4)–This article shall not apply to any amendment of the Constitution made under Article 368.
  • Article 32 and 226 –A person can approach the High Court and Supreme Court to violate fundamental rights.
  • Article 251 and 254 –Conflict between the union and state laws, the state law shall be void.
  • Article 245–The legitimacy of legislation can be challenged in the court if the provision of law infringes fundamental rights.
  • Article 131-136–Court has the power to adjudicate disputes between individuals, individuals and state, state and state, state and union; the court is required to interpret provisions of the Constitution and interpretation given by the Supreme Court becomes the law of the land.
  • Article 372 (1) –Judicial review of the pre-constitutional legislation.

Grounds for judicial review 

Constitutional Amendment 

Review of the constitutional amendment done by the authority. All those amendments which are violating fundamental rights are declared void by the Supreme Court.

Administrative Actions 

  • Illegality – The decision-makers have made decisions beyond their power or their acts and decisions are illegal. Their acts and decisions can be illegal if they fail to follow the law.
  • Irrationality –The authority should act properly. It should not be irrational and unreasonable. The court can raise the question if the decision that has been taken by an authority is unreasonable. 
  • Procedural impropriety – This principle is a matter of procedure decision taken by decision-makers. This case should be decided and heard by people to whom it is delegated and not the other persons. The rules are:
  1. Audi alteram partem.
  2. Nemo judex in causa sua.

              Public authorities should act fairly before decision-making. If they act unfairly, it would be an abuse of power.

Judicial pronouncement

Shankar Prasad v. Union of Indian in this case, the zamindars challenged the constitutional validity of the first amendment which is related to land reforms. The ground was a violation of fundamental rights under Article 13(2) of the Constitution. The court held that the amendment made under Article 368 is not a law under Article 13.

Golakh Nath & Ors v. the State of Punjab In this case, the constitutional validity of the 17th amendment was challenged and it was heard by a special bench of 11 judges. The court held that Parliament under Article 368 has no power to abridge the Fundamental Rights. The court observed that Article 368 states the only procedure to be followed making amendments to the Constitution.

After this case, in article 13 clause 4 was included by the 24th amendment of 1971 which States that any amendment made under Article 368 is not a law under Article 13. Marginal note 368 has changed which state “power of Parliament and the procedure to amend the constitution”.

Kesavananda Bharati v. the State of Kerala, in this case, the 24th and 25th amendments were challenged. The court held that the legislature can amend the Constitution but cannot amend the basic structure of the constitution.  The basic structure of the constitution is the supremacy of law, council, and democratic form of government, secularism, separation of power, and federalism.  

Minerva Mills v. Union of India In this case, the court struck down clauses 4 and 5 of article 368 which were inserted by the 42nd amendment. The court held that these clauses destroyed the basic structure of the Constitution. Judicial review has inserted the basic structure of the Constitution.

Conclusion

Judicial review has covered legislature action, executive action, and judicial decision. India has adopted judicial review from American Constitution. The Supreme Court can not apply for judicial review. It can be used when the question of rule of law is challenged in the High Court or either Supreme Court. The concept of judicial review is the basic structure of the Constitution and it has become part of the basic structure in the case of Minerva Mills v. Union of India.  It is used as a check and balance to check the other two organs of government. Judicial review is not an extended power of the judiciary. Excess use of judicial power without checking validity may violate the separation of power.

The article has been written by Prachi Yadav, a 2nd  Year student from Mody  University of Science and Technology, Laxmangarh, Rajasthan.

The article has been edited by Shubham Yadav, a 4th-year law student at Banasthali Vidyapith, Jaipur.

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Denying Opportunity to Eligible Female Candidates to Join NDA is Violation of Fundamental Rights: Plea Filed in Supreme Court

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A bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy of the Hon’ble Supreme Court granted the Centre a final opportunity to file its response on a plea seeking directions to allow eligible and willing female candidates to join National Defence Academy(NDA), appear for the Naval Academy Examination and train at the National Defence Academy.

Petitioner Kush Kalra represented by Senior advocate Chinmoy Pradip Sharma said that the UPSC had issued a notice on June 9 declaring the date of exams for admission to the military force wings of the NDA. One of the eligibility criteria of a candidate applying for the examination is that the person shall be an unmarried male. This condition excludes female candidates willing to join the academy. While male candidates with a 10+2 level of education are considered eligible to sit for the examinations, female candidates with the same level of education are considered ineligible for the same.

The plea stated that the notice is a violation of Articles 14, 15, 16, and 19 of the Constitution. It also said that the NDA denies admission solely based on gender without a justifiable explanation which is a violation of the fundamental rights of equality before the law and equal protection of the law.

It was in the case of Secretary( Ministry of Defence) v. Babita Puniya that the Supreme Court had unequivocally stated that a woman’s gender roles or her physiological characteristics have no bearing on her equal rights guaranteed under the Indian Constitution.

Previously, A Public Interest Litigation was filed by advocate Kush Kalra on 10th March this year challenging the exclusion of women candidates from applying or entering the National Defence Academy and Naval Academy. A three-judge bench headed by the erstwhile Chief Justice of India S.A. Bobde had issued a notice to the Ministry of Defence, Department of Defence, and the NDA.

The bench has listed the matter to August 18 to consider it for interim relief and has asked the Centre to file its response within two weeks.

-Report by VANESSA RODRIGUES

Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd., AIR 1964 SC 1882

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Equivalent Citation

1964 AIR 1882, 1964 SCR (8) 50

Bench

HIDAYATULLAH, M.

WANCHOO, K.N.

GUPTA, K.C. DAS

AYYANGNAR, N. RAJAGOPALA

Decided on

29 APRIL, 1964

Relevant Act/ Section

S. 69 OF INDIAN PARTNERSHIP ACT, 1932 (9 OF 1932)

S. 8(2) OF ARBITRATION ACT, 1940 (ACT 10 OF 1940) 

Petitioner 

JAGDISH CHANDRA GUPTA

Respondent 

KAJARIA TRADERS (INDIA) LTD.

Facts 

On  30 July 1955, the respondent Messrs. Kajaria Traders (India) Ltd. and Messrs. Foreign Import and Export Association (exclusively owned by the appellant Jagdish C. Gupta) entered into a partnership to export between January and June 1956, 10,000 plenty of manganese ore to Phillips Brothers (India) Ltd., New York. Each partner was to provide a particular quantity of manganese ore. The agreement has arbitration clauses. The corporation claimed that Jagdish Chander Gupta did not carry out his part of the partnership agreement. The corporation wrote to Jagdish Chander Gupta on February 28, 1959, that they had appointed an arbitrator and asked Jagdish Chander Gupta either to confirm Mr. Kolah’s appointment as the only arbitrator or to appoint his arbitrator. Jagdish Chander Gupta postpones consideration and on St Patrick’s Day, 1959, the corporate informed Jagdish Chander Gupta that as he had not assigned an arbitrator within 15 days, they were appointing Mr. Kolah as the only arbitrator. Jagdish Chander Gupta discovered this. And on March 28, 1959, the company filed a plea under s. 8 (2) of the Indian Arbitration Act, 1940 for the nomination of Mr. Kolah or any other person as arbitrator. Jagdish Chander Gupta appeared and demurred the petition.

Issues before High Court

  1. Whether S. 8(2) of the Indian Arbitration Act was applicable in this agreement because it was not expressly provided in the Letter of Intent that the arbitrators were to be appointed by consent of the parties?
  2. Whether S. 69(3) of the Indian Partnership Act, 1932 petition can be filed because the partnership was not registered?

Judgment by High Court 

 Mr. Jagdish Gupta firstly argued that if the appointment is not made within 15 days of notice, on the application of the party who has given the notice, and following the principle of Audi Alteram Partem, the court may appoint an arbitrator. The Bombay High Court bench consists of Justice Mudholkar and Justice Naik, who agreed on the first contention constructed by Mr. Jagdish.

But the division bench contradicts the 2nd point. Justice Mudholkar believed that the application cannot be filed under s. 69(3) of the Indian Partnership Act, 1932, while Justice Naik has a different opinion. Then the case went to Justice KT Desai who agreed with Justice Naik’s view. And the court held that the application was held to be competent.

Contentions before Supreme Court

After the Bombay High Court Judgement, the appeal was filed in which it was contended that the High Court wrongly interpreted the grounds under S. 69(3) of the Indian Partnership Act, 1932.

Judgment by Supreme Court

The Supreme Court held that the words ‘other proceeding’ in S. 69(3) of the partnership act must receive their meaning and must be unaffected by words’ claim of set-off. Therefore, the appeal is allowed to rescind the decision of the Bombay High Court.

Conclusion 

The judgment answers the question of whether an unregistered firm can initiate arbitration proceedings negatively. Despite the arbitration clause, the arbitration proceedings were barred in this case. Hence, to function like a well-oiled machine, the firm must get registered.

The case analysis has been done by Megha Patel, a 2nd year Law Student at the Mody University of Science and Technology, Laxmangarh, Rajasthan.

The case analysis has been edited by Shubham Yadav, a 4th-year student at Banasthali Vidpyapith, Jaipur.

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Supreme Court Directs the Government to Rehabilitate and Vaccinate Beggars

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The PIL regarding the restrain and rehabilitation of the beggars in the wake of this pandemic situation was brought before the court by the petitioner Kush Karla on 27.07.2021, before the bench of Justices DY Chandrachud and MR Shah.

“We can’t restrain beggars. Nobody wants to beg it’s all the situation leading the human to do so. And this restraining them cannot miss out of our eyes but it is an economic crisis of the society that brought them to this situation even it’s their own will to do so”, said the bench.

Senior advocate Chinmoy Sharma, who appeared as the petitioner’s counsel, responded to the bench that our plea is not regarding the restrain of beggars but to provide rehabilitation for them after being vaccinated, And all the people in this country mandatory to be vaccinated but why not the beggars. In light of this, the court sent notice to the national capital territory of Delhi also to the union of India on the prayer regarding the vaccination and rehabilitation of the beggars.

The court ordered that in regards to the plea every citizen in the country means to be safe and secured, irrespective of the rich nor poor. Also, the court highlighted that it is the socio-economic crisis that leads people in the streets to beg, it is not anyone’s choice to opt for such a decision. Restraining them is not a way to decrease this socio-economic crisis, People do beg due to poverty and unemployment. Also, the mentioned that there are many societies to help and protect the homeless people, though the court issued an order to protect them from the spreading of COVID 19 in the traffics and streets due to the act of begging, And directed the union and Delhi to give response for such human situations, and the court asked the Solicitor General to assist the court.

The hearing would be continued two weeks later.

-Report by AJISHA

Rule of Law need to be Preserved so India Cannot have 2 Separate Legal Systems

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Supreme Court on Friday Stated that India cannot have two parallel legal systems out of which one for the influential and rich people and another one for the poor.

This was stated by Supreme Court in a Murder case of Congress leader Devendra Chaurasia of Madhya Pradesh where the High Court has granted bail to the accused who is the husband of a Madhya Pradesh BSP legislator. The accused Mr. Govind Singh was arrested in the accusation Congress leader in March, there are also another 28 Criminal cases registered against him and Singh was granted bail by the High court.

When the apex court came to know about it took up the matter and the bench comprising of justices D Y Chandrachud and Hrishikesh Roy had observed the case. It has been noted that the accused has been protected by the police because of its power and influence and so put aside an order of the Madhya Pradesh High Court which has granted bail to Mr. Singh. Along with bench also said that existing of two different legal systems will decline the legality and validity of the law.

The apex court also jogs the court memory of the state that is not their duty to protect the politicians or come under their pressure just because they are influential.

-Report by RIDDHI DUBEY

453 Judges Post Vacant in 22 High Courts in India

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Recently, the Union Ministry of Law and Justice had notified parliament that there are in total 453 vacant seats of Judges in different High Courts across the Country.

The list of vacant seats of Judges goes like this Allahabad High Court has 66 vacancies, Bombay High court has 31, Calcutta High Court has 41, Delhi High Court 30, Madhya Pradesh has 24, and Gujarat High Court 24, Punjab & Haryana 39, and Rajasthan High court has 27 vacancies. The Himachal High Court has had no Justices since 1st July and whereas Sikkim, Manipur, and Meghalaya have no vacancy.

Justifying this situation Law Minister Kiren Rijiju stated in his reply to Rajya Sabha that filling up such vacancies is a continuous, integrated, and collaborative process and as it is a long process so it takes time. Efforts are been made to fill up these vacancies and always new vacancies are coming up and it’s also the reason for vacancies not been filled. It was also stated that various recommendation was made by Supreme court Collegium which was around 80 names out of which 45 have been appointed and rest are still pending in the process.

Supreme Court stated that various orders have been passed by a different bench to fill up this High Court never-ending vacancies still are pending and it is ordered to fill it up in reasonable time.

-Report by RIDDHI DUBEY

Plea in Supreme Court for the Formation of GST Appellate Tribunal

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A petition to the Supreme Court has been filed to establish the Goods and Services Tax (GST) Appellate Tribunal. The case, which is expected to be heard soon, claims that the tribunal has not been established even though the Central Goods and Services Act has been in effect for four years.

It was stated that in the absence of a Tribunal, citizens who have been wronged are forced to contact their respective high courts, which is overburdening the work of the high courts. “In the absence of an Appellate Tribunal, litigants are unable to obtain justice within a reasonable timeframe, creating significant hardship to litigants across the country,” according to the PIL filed by advocate Amit Sahni.

It stated that the creation of national and other Appellate Tribunal benches has become an imperative necessity of the hour and that the respondents cannot delay its establishment indefinitely. It further stated that the period of limitation to file an appeal before the tribunal, which is 90 days, cannot be extended by the Centre by administrative order in violation of statutory rules, and that such an extension cannot be granted indefinitely.

In the plea, the following assertions are made:

  • The petitioner pointed out that under the CGST Act, anyone who is dissatisfied by an order issued by the Appellate Authority under Section 107 or the Revisional Authority under Section 108 has three months to appeal to the Appellate Tribunal under Section 112. Despite the presence of such a clear legal mandate, the Centre has taken no action to establish a National Bench or other Appellate Tribunal Benches.
  • The petitioner also claimed that the Department of Revenue had stated in response to a catena of representations filed by aggrieved litigants that the reason for the delay in forming the Appellate Tribunal was because the Madras High Court had ordered the Central government to amend the CGST Act in the case of Revenue Bar Association v. Union Of India and Consider appointing lawyers with more than 10 years of experience as Judicial Members of the Tribunal’s National and Other Benches.

-Report by YASHVARDHAN SHARMA

Justice DY Chandrachud: Live Streaming is a Necessity Creates Transparency and Clarifies Misconceptions About Judges’ Functioning

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Dr. Justice D. Y. Chandrachud, Judge and Chairman, e-committee of the Supreme Court of India, addressed some crucial statements at the live streaming of Gujarat High Court proceedings event, underlining the importance of the Live Streaming Court’s activities.

He emphasized that live streaming has become essential and that it increases clarity. “Even when the pandemic is over, live streaming will help to exemplify court proceedings and spread the message that courts are for the people. “Learners recognize that judges are doing their jobs properly.” He added. He also addressed the widespread misunderstandings about how judges work. “We are targeted for the vacations we take,” he added,” Judges, on the other hand, work 24 hours a day; but people don’t comprehend the magnitude of the job that judges perform even while they are on vacation.”

N.V. Ramana, India’s Chief Justice, has stated that live-streaming of Supreme Court hearings may begin shortly, and that practicalities are being worked out to make this possible.

According to India’s Chief Justice, people currently acquire information about court proceedings through the media, “In effect, information from the courts is filtered by agents. Due to the lack of context, there is occasionally a communication loss during the proceeding, resulting in misinterpretation of questions asked and observations made by the bench. “Vested interests can exaggerate these misunderstandings to mock or defame the institution,” he said. It is this lack of direct access that allows for misconceptions to grow. The best treatment for the aforementioned issue is the formalization of live streaming of court sessions. Live-streaming of proceedings is crucial for information dissemination, which is a core component of Article 19.” People can acquire first-hand information about the entire proceedings and the judges’ judgments with such direct access, he said, “leaving little opportunity for any wrongdoing.”

The Supreme Court had previously stated that the court’s proceedings should be live-streamed in cases of constitutional significance. Gujarat High Court Chief Justice Vikram Nath remarked during the virtual inauguration, “Going live requires bravery, confidence, and, most importantly, conviction. The live-streaming guidelines are unanimously approved by all of my brother and sister judges.”

-Report by YASHVARDHAN SHARMA