Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts

Thursday, June 7, 2018

whether the NCLAT can dismiss a statutory appeal?

 On 18 May 2018, in M/s B Himmatlal Agrawal (Appellant) v Competition Commission of India (CCI) and Anr. [Civil Appeal No. 5029 of 2018], the Supreme Court of India (Supreme Court) distinguished the decision of the National Company Law Appellate Tribunal (NCLAT) while disposing of a statutory appeal under the Competition Act, 2002 (Competition Act).

The issue before the Supreme Court was whether the NCLAT can dismiss a statutory appeal for non-compliance of its interlocutory direction to deposit a portion of the penalty as a condition for grant of interim relief. In this instant case, the Supreme Court set aside part of the NCLAT's order and restored the appeal that had been dismissed by the NCLAT. 

Background

The CCI found the Appellant guilty of rigging the bids for tenders floated by Western Coalfields Limited and correspondingly imposed a penalty of INR 3,61,00,000, which was ordered to be deposited within 60 days (CCI Order). The Appellant filed an appeal before the NCLAT against the CCI Order, seeking inter alia a stay of the penalty deposit. In response, the NCLAT granted a stay against the CCI Order (NCLAT Stay Order), with a condition that the Appellant was to deposit a sum equal to 10% of the total penalty (Deposit). However, the Appellant was unable to execute the Deposit due to financial distress. Consequently, the NCLAT dismissed the appeal on the ground of non-compliance with the NCLAT Stay Order. Being aggrieved, the Appellant filed an appeal against the NCLAT's decision before the Supreme Court.

Decision of the Supreme Court

The Supreme Court recognised that the right to appeal is provided under Section 53B of the Competition Act and that the said provision does not require any pre-deposit of penalty for entertaining an appeal. The Supreme Court held that the right to appeal granted by a statute cannot be curtailed by imposing a condition of pre-deposit of penalty, which can result in the dismissal of the appeal, if such deposit is not satisfied.
The Supreme Court declared that non-compliance of the NCLAT Stay Order will not impact the substantive appeal. As the condition of deposit was attached to the NCLAT Stay Order, any non-compliance would result in the NCLAT Stay Order ceasing to operate, as the pre-condition is not fulfilled. However, the substantive appeal would have to be decided on merits after giving the involved parties an opportunity to be heard.
As a result, the Supreme Court set aside part of the NCLAT Stay Order and directed that the appeal be restored and decided on merits. The stay order remained vacated on ground of the non-compliance.

http://www.mondaq.com/india/x/707524/Antitrust+Competition/Supreme+Court+Clarifies+NCLATs+Powers+In+Appeal

Thursday, May 24, 2018

CLAT 2018- SC Suggests To Form Nodal Agency To Examine The Grievances Of Candidates, Asks NUALS To Reply

The Supreme Court today asked Common Law Admission Test (CLAT) 2018 convenor Nuals Kochi to appoint an expert committee at the earliest to individually look into at least 251 CLAT 2018 candidates’ grievances with the conduct of the entrance exam this year.

Justices AM Khanwilkar and Navin Sinha heard senior advocate Salman Khurshid for CLAT 2018 candidate Disha Panchal and five other petitioners who had challenged the exam and asked for a stay on the results and for a fresh exam, on the ground that they suffered from precious time lost in answering the paper due to technical glitches in the conduct of the exam.

Senior advocate V Giri appeared for Nuals today and placed on record the computer “log reports” of the petitioners claiming that each of the six petitioners was compensated with extra time for the exact time lost on account of technical glitches.

Nuals also submitted that out of over 59,300 candidates who appeared for the CLAT 2018 LLB and LLM entrance exams, it has received 251 representations so far from aggrieved candidates claiming that they had suffered on account of errors and glitches in the exam, the petitioners’ counsel Anand Shankar Jha told us.

This leaves out possibly up to 2,120 other potentially aggrieved candidates, according to a Google form that had been opened up to responses by a free CLAT tutorial service.

Jha said that the court was of the prima facie view that there were indeed many glitches in the conduct of the exam and that Nuals should appoint a mechanism or constitute a committee to look into each individual grievance.

The judges asked Nuals to propose before the court tomorrow as to how soon it can constitute such a committee and what procedure the committee would follow to address candidates’ grievances.

The court also ordered a stay on the writ proceedings on before five other benches of various high courts by several CLAT 2018 candidates, i.e. before Rajasthan - Jodhpur and Jaipur, Punjab & Haryana, Madhya Pradesh and Delhi, making their outcome subject to the decision of the Supreme Court.

Additional solicitor general appeared for the ministry of human resource development (MHRD), which was also made a respondent in the case.

Jha said that the hearings in the matter will now proceed on a day to day basis and the next hearing is tomorrow.



https://www.legallyindia.com/pre-law-student/clatinsc-nuals-to-propose-mechanism-to-look-into-251-candidates-complaints-as-2000-other-unrepresentated-sc-stays-clat-2018-proceedings-in-all-hcs-20180524-9366

Supreme Court: No relief to LLB Student Short Of Attendance Due To Pregnancy.


The Supreme Court on Wednesday refused to grant attendance relaxation to a second-year student of the LL.B course of Faculty of Law, University of Delhi (DU) who had missed college due to her pregnancy.

The Petitioner, Ms. Ankita Meena had sought a direction to DU to permit her to appear in the IV semester LL.B Examination. She could not meet the requisite 70% attendance criteria, having missed almost 2 months of the semester due to her pregnancy.

The Supreme Court vacation bench of Justices A. M. Khanwilkar and Navin Sinha declined interim relief of being permitted to sit for her fourth semester examination scheduled at 2 PM on Wednesday.
The bench was hearing the SLP preferred by Ms. Meena against the May 15 judgment of the Delhi High Court, wherein the Single Judge had placed reliance on University of Delhi v. Vandana Katari and Sukriti Upadhyay v. University of Delhi, besides Rule 12 of the BCI Rules of Legal Education, in refusing to grant her attendance relaxation.

Dismissing the SLP, the bench on Wednesday noted, “even maternity leave was not applied for… the objective of stipulating rules is to secure a sense of discipline…we cannot direct at 1 PM that a candidate may be allowed to take the examination at 2 PM...”

The bench, however, granted liberty to the petitioner to approach the Division Bench of the Delhi High Court. At an earlier stage, the bench had signified its consent to an arrangement that may be effected in this behalf with the acquiescence of the Respondent University.

In her petition, Ms. Meena had claimed a contravention of Rule 2(9)(d) of Ordinance VII of Chapter III of Delhi University Act of 1922, of her Fundamental Rights under Articles 19(1)(g), 14 and 21, her DPSP under Article 42 and the State’s Fundamental Duty under Article 51(c) [in the light of India being a signatory to the Convention on the Elimination of All Forms of Discrimination against Women], besides the provisions of the Maternity Benefit Act.

She also referred to the landmark judgment in Air India v. Nargesh Meerza. The relevant extract of the said Rule 2(9)(d) reads as follows:

“In the case of a married woman student who is granted maternity leave, in calculating the total number of lectures delivered in the College or in the University, as the case may be, for her course of study in each academic year, the number of lectures in each subject delivered during the period of her maternity leave shall not be taken into account:”

The High Court had, however, noted that the position had been settled by a decision by the Division Bench of the Court in the case of University of Delhi & Anr. v. Vandana Kandari & Anr., wherein the Court had held that maternity leave cannot be put in a different compartment for the purposes of relaxation of attendance. The Court had further highlighted the fact that LL.B. is a “a special professional course where no relaxation can be granted contrary to the Bar Council of India Rules, which specifically governs the field.” It had then dismissed the Petition, observing, “In my considered view, once Rule 12 of Rules of Legal Education of the Bar Council of India prescribes a mandatory attendance of 70% in each semester of LLB, no reliance can be placed on Rule 2 (9) (d) of Ordinance VII of Chapter III of Delhi University, which is a general provision that does not deal with a professional course like LLB.”

Sunday, May 13, 2018

Complaint Of Domestic Violence Can Be Filed Even After Divorce: Supreme Court

A woman can lodge a complaint under the domestic violence law against the excesses committed by her husband even after the dissolution of marriage, the Supreme Court has said.

The top court refused to interfere with the order of the Rajasthan High Court which held that the absence of subsisting domestic relationship in no manner prevents a court from granting relief to the aggrieved woman.

The high court had passed the order while adjudicating a matrimonial dispute.

A bench of justices Ranjan Gogoi, R Banumathi and Navin Sinha dismissed the appeal against the high court verdict, saying it was not inclined to interfere with the order in the facts of the case.

It was contented that husband-wife relationship often ends on an acrimonious note and if the provisions of the Act were allowed to be used retrospectively, then it would further increase the acrimony and rule out the possibility of any compromise.

He said that legislature's purposive interpretation has to be kept in mind while interpreting any provisions of the law.

The bench, however, refused to agree and declined to interfere with the high court order in the facts of the case.

The high court had held on October 30, 2013 that the subsistence of marriage or domestic relationship was not a condition precedent for an aggrieved person to invoke the protection orders and other reliefs under the provisions of the Act.

"If the aggrieved person had been in domestic relationship at any point of time even prior to coming into the force of the Act and was subjected to domestic violence, the person is entitled to invoke the remedial measures provided under the Act,

The high court had said cited an example saying that even after the dissolution of marriage between the parties, if an ex-husband attempts to commit an act of violence such as entering the place of employment of the divorced wife, trying to establish contact with her or causing violence to her dependents or other relatives, she is not precluded from seeking protection orders under the law.

If the divorced husband attempts to dispossess the woman from the shared household or property jointly owned, she can approach a court for appropriate relief.



https://www.ndtv.com/india-news/complaint-of-domestic-violence-cruelty-against-can-be-filed-even-after-divorce-says-supreme-court-1851293

Friday, May 11, 2018

SC stays verdict on pleas challenging validity of Aadhaar: Top 5 points

A five-judge constitution bench of the Supreme Court headed by Chief Justice of India (CJI) Dipak Misra on Thursday reserved its judgement on the Aadhaar matter. Several appeals were filed challenging the constitutional validity of Aadhaar. Supreme Court judge Justice D Y Chandrachud, while hearing the petitions challenging the Aadhaar scheme's constitutional validity, on Wednesday recalled a personal experience of how his mother, who was suffering from Alzheimer's disease, had faced difficulty in authentication to get her pension.
Justice Chandrachud is part of the five-judge Constitution Bench, headed by Chief Justice of India Dipak Misra, which is hearing a batch of petitions challenging the constitutional validity of the Aadhaar scheme and its enabling law of 2016.

A battery of lawyers including Attorney General K K Venugopal, who represented the Centre and senior advocates like Kapil Sibal, P Chidambaram, Rakesh Dwivedi, Shyam Divan, Arvind Datar, Rakesh Dwivedi had appeared for various parties.
The constitution bench also comprised Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan.
During the arguments spread over four months, the Centre had strongly defended its decision to seed Aadhaar numbers with mobile phones, telling the top court that it could have been hauled up for contempt if the verification of mobile users was not undertaken by it.
However, the court had said that the government had misinterpreted its order and used it as a "tool" to make Aadhaar mandatory for mobile users.
Former Karnataka High Court judge Justice K S Puttaswamy and other petitioners had challenged the constitutional validity of Aadhaar.
The court had also not agreed with the government's contention that the Aadhaar law was correctly termed as a Money Bill by the Lok Sabha Speaker as it dealt with "targeted delivery of subsidies" for which funds came from the Consolidated Fund of India.
On May 3, the Centre had strongly defended its decision to seed Aadhaar numbers with mobile phones, telling the top court that it could have been hauled up for contempt if the verification of mobile users was not undertaken by it. However, the court had said that the government had misinterpreted its order and used it as a "tool" to make Aadhaar mandatory for mobile users.
The petitioners had referred to the technical experts' views on the technical aspect of the Aadhaar architecture and said that real-time surveillance of citizens was possible.
Earlier, the court also did not agree with the government's contention that the was correctly termed as a Money Bill by the Lok Sabha Speaker as it dealt with "targeted delivery of subsidies" for which funds come from the Consolidated Fund of India.
1) SC reserves judgement on pleas challenging Aadhaar: The Supreme Court on Thursday reserved its verdict on a batch of petitions challenging the constitutional validity of Aadhaar and its enabling 2016 law.
A five-judge headed by Chief Justice directed all the parties concerned to file their written submissions to put forth their case.
The judgement was reserved after a marathon hearing which went on for 38 days spanning four months.
2) Justice Chandrachud's mother had to authenticate ID every month for her pension:failures could create problems for those in need and some solution had to be found to address the issue, said the Bench, also comprising Justices A K Sikri, A M Khanwilkar, and Ashok Bhushan. Recalling his experience, Justice Chandrachud said "my mother, who was suffering from Alzheimer's disease was entitled to family pension being the wife of a former Chief Justice of India (late Justice Y V Chandrachud)".
"She had to give a for authentication.

I recall, every month the bank manager or his representative would come home and affix her thumb print on certain documents and only then could she get the pension," Justice Chandrachud said. "So it (authentication) is a serious issue. It's not largesse. It is not charity... we have to find answers for these problems," he said, adding that there was a class of needy people who may not get the benefits due to authentication failures.
3) Senior advocate says 90-year-old woman who is unwell being threatened by bank over Aadhaar: The apex court judge was responding to the arguments of senior advocate Shyam Divan, appearing for former High Court judge Justice (Retd) K S Puttaswamy, who said a 90-year-old woman suffering from various ailments is being threatened that her bank account could be closed for non-authentication by Aadhaar.
Divan said that through that bank account, she was getting her pension and she uses that money for her treatment as she has no one else to look after her.
"There are numerous cases where the failures of the elderly, people suffering from any disease or physical disability, leads to to those otherwise entitled to it," Diwan said.
He said in many villages, young people have now migrated to cities or nearby towns and only the elderly residing there were dependent on their pension or other grants. But due to failure, they were not getting the benefits.

4) Senior advocate tries to poke holes in World Bank report praising Aadhaar: Divan sought to assail a World Bank report which had praised the Aadhaar project and which was relied upon by the government to bolster its case for the 12-digit unique identification number. He said the World Bank had partnered with a private entity for preparing the report titled 'Identification for Development'.
Divan claimed that the same private entity was also the company with which had partnered to facilitate Aadhaar.

5) Advocate Divan says Aadhaar authentication should not be made compulsory for certain schemes: Divan told the apex court that there were 144 notifications issued by various ministries and departments of the government which covered 252 schemes. The senior lawyer concluded his rejoinder arguments saying that essential government schemes that apply to children or relate to citizen's rehabilitation, food, health, and nutrition should be excluded from the requirement of Aadhaar authentication.

http://www.business-standard.com/article/current-affairs/aadhaar-case-sc-judge-recounts-ailing-mother-s-pension-hurdles-top-points-118051000187_1.html

Tuesday, June 20, 2017

SC stays NGT order on demolition of resorts in Kasauli


Supreme Court on Friday stayed the National Green Tribunal (NGT) order directing demolition of five resorts in Kasauli in Himachal Pradesh, which were either constructed or expanded without adequate approvals from authorities.



Although a bench of Justices R K Agrawal and Sanjay Kishan Kaul said the resort owners had to justify construction without approval from local authorities, but granted interim stay on the NGT order. 


The NGT had on May 30 directed Bird's View Resort, Chelsea Resorts, Hotel Pine View, Narayani Guest House and Nilgiri Hotel to demolish their "unauthorised structures". The tribunal had also directed the resorts to pay up for the environmental destruction caused by them. The Bird's View Hotel was directed to pay an environmental compensation of Rs 5 lakh while Chelsea Resorts, Hotel Pine View, Narayani Guest House were directed to pay Rs 7 lakh each. Nilgiri hotel was directed to pay Rs 10 lakh.



"We direct that the unauthorised and illegal construction raised in violation of the planning laws affecting environment, ecology and natural resources adversely, should be demolished in terms of the provisions of the NGT Act of 2010," the NGT had said.


The tribunal had passed the order on a plea filed by Society for Preservation of Kasauli and its Environs (SPOKE) alleging that Bird's View Hotel added a 3-storey structure adjoining the existing building without obtaining prior approval from Town & Country Planner (TCP) and Chelsea Resorts made four building blocks instead of two approved by the TCP.



It had alleged that Hotel Pine View constructed a 7-storey structure in two inter-connecting building blocks as against only three storey in one block that was approved. Narayani Guest House constructed a 6-storey building as against the approval of three storey, while Nilgiri Hotel constructed four extra storeys, it had contended before the tribunal.


Thursday, June 15, 2017

Supreme Court of India held that Only Wakf Tribunal Can Decide Whether A Property Is Wakf Or Not

When the main question involved in the suit is whether the suit land is a Wakf property or not, it can be decided only by the Wakf Tribunal, and not by the civil court, the Supreme Court has held in Rajasthan Wakf Board vs Devki Nandan Pathak.
A bench comprising Justice AM Sapre and Justice RK Agrawal also held that matters falling under Sections 51 and 52 of the Wakf Act are also required to be decided by the tribunal and not by the civil court. The court has now remanded the matter to the high court for deciding the revision afresh on merits.
In the instant case, the Wakf Tribunal, on a plea by Wakf Board, had granted permanent injunction in respect of the property in question and declared the sale deed executed in favour of the other party ‘null and void’. The high court set aside this order holding that the tribunal has no jurisdiction in the matter and on the ground that since no order was made by any authority under the said Act, the applicant before the Wakf Tribunal could not be said to be the person aggrieved also as contemplated in Section 83(2) of the said Act and hence the tribunal would have no jurisdiction to determine the issue involved in the suit.
Relying on an apex court judgment, the high court observed that in so far as the relief of cancellation of sale deed is concerned, it is to be tried by the civil court for the reason that it is not covered by Section 6 or 7 of the Wakf Act.

Supreme Court Limits CCI’s Penalty Powers: “Relevant Turnover” Upheld

upheld the principle of “relevant turnover” for determination of penalties in competition law contraventions; and settled a critical issue in India’s antitrust jurisprudence, which was heavily debated amongst all stakeholders for over five years.
Background
The above ruling arises out of a proceeding involving an alleged contravention of Section 3(3) of the Competition Act, 2002 (Competition Act) in the public procurement of Aluminium Phosphide (ALP) Tablets by the Food Corporation of India (FCI). The Competition Commission of India (CCI) found a violation of Section 3(3) of the Competition Act and imposed a penalty at the rate of 9% of the total turnover of the concerned ALP manufacturers – namely, Excel Corp Care Limited (Excel), United Phosphorus Limited (UPL) and Sandhya Organic Chemicals Private Limited (Sandhya).
The Competition Appellate Tribunal (COMPAT) in its final order upheld the CCI’s order as to the existence of the contravention under the Competition Act. However, it significantly reduced the penalties imposed by the CCI. COMPAT’s modification of penalties was based on the principle that the reference to the term “turnover” in Section 27(b)[1] of the Competition Act would, in the facts and circumstances of the case, mean “relevant turnover”, i.e. turnover derived from the sales of goods or services, which are found to be the subject of contravention.
COMPAT’s order was challenged by the CCI before the Supreme Court. CCI contended that the term “turnover” as used in the Competition Act must always be interpreted as “total turnover” of the enterprise in contravention. The CCI contended that the COMPAT had added words to the Competition Act by inserting the word “relevant” before the term “turnover”. ALP tablets manufacturers, led by Excel, on the other hand, opposed the same by contending that it was the interpretation extended by the CCI, which led to adding the word “total” or “entire” before the term “turnover”.
Key Findings
Ultimately, the Supreme Court held that the imposition of penalty adopting the criteria of “relevant turnover” will be “more in tune with ethos of the Act and the legal principles which surround matters pertaining to imposition of penalties.”
Role of Equity in Penalty Imposition
The Supreme Court held that accepting the CCI’s interpretation of the term “turnover” as “total turnover” in all situations would “bring about very inequitable results”. Relying on various judgments stating that interpretation that brings out inequitable or absurd results has to be eschewed, the Supreme Court held that the interpretation extended by CCI does not commend acceptance.
In this regard, the Supreme Court took note of illustrations demonstrating that imposition of penalty on the basis of “total turnover” in all cases would inequitably discriminate against enterprises committing the same contravention depending on the manner in which their product/business lines are structured.
Strict Interpretation  
The Supreme Court also justified its conclusion and found that the principle postulating strict interpretation of “penal” statutes would also support and supplement the consideration of “relevant turnover” rather than “total turnover”.
In light of the principle of strict interpretation (relying on a recent Constitution Bench decision in Abhiram Singh and Ors v C.D. Commachen (Dead) by L.Rs and Ors[2] ) the Supreme Court held that, “even if two interpretations are possible, the one that leans in favour of infringer has to be adopted” and that there was “no justification for including other products of an enterprise for the purpose of imposing penalty” when the agreement leading to contravention involves one product.
Proportionality and Purposive Interpretation
As regards the arguments of the CCI on the objective to discourage and stop anti-competitive practices, the Supreme Court held, “the penalty cannot be disproportionate and it should not lead to shocking results”. It was held that the aim of deterrence cannot be justified to give an interpretation that may lead to “the death of the entity” itself. The Supreme Court emphasised that the doctrine of proportionality, which is based on equality and rationality, is a “constitutionally protected right which can be traced to Article 14 as well as Article 21 of the Constitution”.
The Supreme Court noticed that the doctrine of purposive interpretation and doctrine of proportionality have certain overlaps. It held that the purpose of the Competition Act cannot be to “finish” certain enterprises. Relying on the South African judgment in Southern Pipelines, the Supreme Court repeated that “there is a legislative link between the damage caused and the profits which accrue from the cartel activity”. Accordingly, the purposive interpretation of the term “turnover”, the Supreme Court found, also favours consideration of “relevant turnover”.
The concurring judgment by Hon’ble Mr. Justice N.V. Ramana held that “proportionality needs to be imbibed into any penalty imposed under Section 27” of the Competition Act. Accordingly, it laid down step-wise methodology to be followed by the CCI in imposing penalties.
Step-wise Methodology for Penalty Imposition
Step 1: Determination of Relevant Turnover
“Relevant turnover” refers to the “entity’s turnover pertaining to products and services that have been affected by such contravention”. The Supreme Court has clarified that the above definition is not exhaustive.
Step 2: Determination of Appropriate Percentage of Penalty Based on Aggravating and Mitigating Circumstances  
The Supreme Court provided an illustrative list of factors to be considered when determining such percentage.
Final Step: The penalty imposed “should not be more than overall cap of 10% of the entity’s relevant turnover”.
Key Takeaways
The Supreme Court’s approach in this judgment indicates a healthy respect for foreign jurisprudence, which is tempered by the motivation to evolve indigenous jurisprudence based on, and appropriate to, the Indian constitutional and legal framework.
  • The judgment lays the foundation for penalty imposition under the competition law regime in India, leading to greater certainty and transparency in penalty imposition. The same will benefit all stakeholders functioning within the framework of the Competition Act.
  • This judgment, from the highest court of the land, is likely to be followed in all cases where the issue of “relevant turnover” is pending or raised either before the DG/CCI or at the Appellate Stage or even before the Supreme Court itself. 

persistent effort of the wife to constrain her husband to be separated from the family constitutes an act of ‘cruelty’ to grant divorce.


The Supreme Court of India in Narendra vs. K.Meena has held that persistent effort of the wife to constrain her husband to be separated from the family constitutes an act of ‘cruelty’ to grant divorce.
The Bench comprising Justice Anil R. Dave and Justice L. Nageswara Rao also held that leveling of absolutely false allegations with regard to extra-marital life and repeated threats to commit suicide would also amount to ‘mental cruelty’. The Supreme Court set aside a High Court judgment which had reversed the Trial court order granting divorce to the husband on ground of cruelty.
Repeated threats to commit suicide
Observing that repeated threats to commit suicide amounts to cruelty, the Court observed: “No husband would ever be comfortable with or tolerate such an act by his wife and if the wife succeeds in committing suicide, then one can imagine how a poor husband would get entangled into the clutches of law, which would virtually ruin his sanity, peace of mind, career and probably his entire life. The mere idea with regard to facing legal consequences would put a husband under tremendous stress. The thought itself is distressing.”
Forcing separation from parents
With regard to allegations of cruelty in wife forcing husband to get separated from his parents, the Bench observed: “In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason; she would never insist that her husband should get separated from the family and live only with her…. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the Respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income.”
Wild allegation of extra marital affairs
The Court also observed that to suffer an allegation pertaining to one’s character of having an extra-marital affair is quite torturous for any person – be it a husband or a wife.
Restoring the judgment of Trial court and setting aside the High Court judgment, the Bench said: “The behaviour of the wife appears to be terrifying and horrible. One would find it difficult to live with such a person with tranquility and peace of mind. Such torture would adversely affect the life of the husband.”

Tuesday, February 21, 2017

Constitution bench to decide petitions on triple talaq: Supreme Court

A five-judge constitution bench would be set up by the Supreme Court to hear and decide on a batch of petitions relating to the practice of triple talaq, 'nikah halala' and polygamy among Muslims.

A bench headed by Chief Justice J S Khehar took on record three sets of issues framed by parties with regard to the cases and said the questions for consideration of the constitution bench would be decided on March 30.

The bench, also comprising Justices N V Ramana and D V Chandrachud, said "the issues are very important. These issues cannot be scuttled".

Referring to the legal issues framed by the Centre, it said all of them relate to the constitutional issues and needed to be dealt by a larger bench.

The bench asked the parties concerned to file their respective written submissions, running not beyond 15 pages, by the next date of hearing, besides the common paper book of case laws to be relied upon by them during the hearing to avoid duplicity.

When a woman lawyer referred to the fate of the apex court judgement in the famous Shah Bano case, the bench said "there are always two sides in a case. We have been deciding cases for last 40 years. We have to go by the law and we would not go beyond the law."

The bench also made it clear that it is willing to sit on Saturdays and Sundays to decide on the issue as it was very important.

During the last hearing, the apex court had said it would decide the issues pertaining to 'legal' aspects of the practices of triple talaq, 'nikah halala' and polygamy among Muslims but not deal with the question whether divorce under Muslim law needs to be supervised by courts as it fell under the legislative domain.

'Nikah halala' means a man cannot remarry a woman after triple talaq unless she has already consummated her marriage with another man and then her new husband dies or divorces her.

The bench headed by the CJI had said "You (lawyers for parties) sit together and finalise the issues to be deliberated upon by us."

The bench had made it clear to the parties concerned that it would not deal with the factual aspects of the particular case and would rather decide the legal issue.

The apex court had said that the question whether divorce under Muslim Personal Law needed to be supervised by either courts or by a court-supervised institutional arbitration fell under the legislative domain.

It, however, allowed lawyers to file small synopsis of cases pertaining to alleged victims of triple talaq.

The Centre had earlier opposed the practice of triple talaq, 'nikah halala' and polygamy among Muslims and favoured a relook on grounds like gender equality and secularism.

Ministry of Law and Justice had referred to constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries.


Responding to a batch of petitions including the one filed by Shayaro Bano challenging the validity of such practices among Muslims, the Centre had first dealt with the right of gender equality under the Constitution.

All India Muslim Personal Law Board, however, had rubbished the stand taken by the Narendra Modi government that the apex court should re-look these practices as they are violative of fundamental rights like gender equality and the ethos of secularism, a key part of the basic structure of the Constitution.


Another prominent Islamic organisation Jamiat Ulema-i- Hind had told the court there is no scope for interference with the Muslim Personal Law in which triple talaq, 'nikah halala' and polygamy are well rooted and stand on much higher pedestal as compared to other customs.


http://timesofindia.indiatimes.com/india/constitution-bench-to-decide-petitions-on-triple-talaq-supreme-court/articleshow/57185261.cms

Monday, January 9, 2017

Speedy disposal of Intellectual property rights cases




 Dispute over Patent for the Use of Twin-Spark Plug Engine Technology – Speedy disposal of Intellectual property rights cases- The Supreme Court of India by this landmark judgment has directed all the courts in India for speedy trial and disposal of intellectual property related cases in the courts in India. In two-year-old dispute involving two companies, which have been locked in a patent dispute over the use of a twin-spark plug engine technology, the Supreme Court observed that suits relating to the matters of patents, trademarks and copyrights are pending for years and years and litigation is mainly fought between the parties about the temporary injunction. The Supreme Court directed that hearing in the intellectual property matters should proceed on day to day basis and the final judgment should be given normally within four months from the date of the filing of the suit. The Supreme Court further directed to all the courts and tribunals in the country to punctually and faithfully carry out the aforesaid orders.




Friday, January 6, 2017

Aircel-Maxis deal: Supreme Court orders 4 accused to appear before Special Court

The Supreme Court on Friday said that the four accused in the Aircel-Maxis case would have to appear before the Special Court and the scheduled the hearing on February 3, 2017.The SC said Aircel spectrum was to be seized & transferred within 2 weeks if the controller & owners did not appear in court in connection with the case. Earlier yesterday, the Chennai High Court had dismissed a bunch of petitions challenging the summons by the Enforcement Directorate citing that the Aircel-Maxis deal was being heard by the Supreme Court. One of these petitions had been filed by former Union Minister P Chidambaram. Karti Chidambaram and Advantage Strategic Consultants Private Limited’s directors were among the other known petitioners, who had challenged the ED summoning. Karti, in his petition, had contended that the summons was a malice in law and added that the summons was campaign was to aim to bear ill reputation of his father, P Chidambaram. Justice B Rajendran had concurred with the Centre’s counsel and said that the matters related to the case were being monitored by the Apex Court.

Earlier in September, senior advocate Harish Salve had appeared for the accused and said that the Aircel-Maxis case was in no way related to the 2G spectrum scam. He had argued that the Chennai-based Telecom promoter C Sivasankaran had been unduly pressured by the then Telecom Minister Dayanidhi to sell the stake in Aircel to Ananda Krishnan owned Maxis in 2006 but it had nothing to do with the 2G scam.


The trial court, however, had said that the Aircel-Maxis deal fell “fairly and squarely falls within the description of 2G scam”. The CBI had earlier alleged that Dayanidhi had “pressured” and “forced” Sivasankaran to sell his stakes in Aircel and two subsidiary firms to Malaysian firm Maxis Group in 2006. The Malaysian firm had favoured by Dayanidhi and granted a licence within six months after the takeover of Aircel in December 2006, it had said. Ex-Telecom Secretary J S Sarma was also named in the CBI’s charge sheet. His name was put in a column of the accused against whom trial cannot proceed.


Friday, December 23, 2016

Seniority is not the ideal norm to determine the appointment of the chief justice of India..

The Department of Justice in the Ministry of Law and Justice issued a terse notification on December 19 saying that by exercising the powers conferred by clause (2) of Article 124 of the constitution of India, the president had appointed Justice Jagdish Singh Khehar, a Supreme Court judge, as the 44th Chief Justice of India (CJI), with effect from January 4, 2017.

The notification, albeit routine, issued ahead of the swearing-in of the new CJI is significant because of what it fails to reveal. Strange as it may seem, clause (2) of Article 124 of the constitution does not confer any such power on the president to appoint the CJI.

The relevant part of clause (2) of Article 124 reads:

“Every judge of the Supreme Court shall be appointed by the president by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the high courts in the states as the president may deem necessary for the purpose and shall hold office until he attains the age of 65 years. Provided that in the case of appointment of a judge other than the chief justice, the Chief Justice of India shall always be consulted.”

No doubt, a CJI is also a judge of the Supreme Court and, therefore, it may be suggested that the power to appoint a CJI can be inferred from this provision. Justice Khehar, however, has already been appointed as a Supreme Court judge once and continues to be one till date.

Therefore, without a clarificatory notification, the use of this provision would mean the appointment of the same person twice.

The absurdity of the literal reading of this provision apart, the lack of clarity in clause (2) of Article 124 with regards to the appointment of the CJI might suggest that the framers of the constitution perhaps envisaged the appointment of a person to the post other than the judge of the Supreme Court. Or at the very least, the framers did not envisage the consultation of the president with the judges of the Supreme Court – or the CJI – with regard to the appointment of the incumbent CJI’s successor.

The supersession issue

By appointing Justice Khehar – the senior-most judge in the Supreme Court after outgoing CJI Justice T.S. Thakur – as the next CJI, the president has put to rest the speculations that have been doing the rounds for weeks.

The news must come as a relief to those who could not rule out supersession in the judiciary by the present government, as well as to those who believed that the present government would hesitate to take an unwise step like the supersession of the CJI, ignoring the convention of elevating the senior-most judge in the Supreme Court as the CJI.

The senior most puisne of the Supreme Court has always been appointed as the CJI except on two occasions.

The convention was breached when Justice A.N. Ray was appointed as the CJI on April 25, 1973, by superseding three senior-most judges. The supersession was made on the day following the Supreme Court’s judgment in the Kesavananda Bharati case.

The second supersession took place during the Emergency when Justice M.H. Beg was appointed as the CJI on January 29, 1977, by superseding Justice H.R. Khanna.

During the hearing of the National Judicial Appointments Commission (NJAC) case last year, the government counsel defending the NJAC assured the Supreme Court’s constitution bench that these two instances of breaching the convention should be considered as aberrations.

The bench also took note of the fact that the first prime minister, Jawaharlal Nehru wanted to supersede Justice Patanjali Sastri, who was the senior-most judge of the Supreme Court, when the first CJI, Harilal Kania, died in office on November 6, 1951.

The bench was told – on the basis of reliable records – that all the six judges of the Supreme Court threatened to resign if Sastri was superseded. Sastri only had a few months left until his retirement and the government acceded to the so-called non-existent convention at the time.

The petitioners in the NJAC case, who doubted the government’s bonafides, pointed to the amendment of the constitution inserting the new Article 124(C), which said that the parliament may – by law – regulate the procedure for the appointment of CJI and other judges of the Supreme Court, and the chief justices and other judges of high courts.

The petitioners were aghast that the new provision equated the appointment of the CJI with that of the other judges of the apex court and chief justices and other judges of high courts without taking note of the convention of seniority guiding the appointment of the CJI, which was cast in stone all these years.

The petitioners were also concerned about the vagueness of the term ‘fitness’, used in Section 5 of the NJAC Act, while referring to the fitness of the senior-most judge of the Supreme Court, to be determined by parliament, for the purpose of his elevation as the CJI.

While Attorney General Mukul Rohatgi clarified to the bench that fitness meant physical and mental fitness alone, doubts remained whether the parliament could define “fitness” in a manner subserving the interests of the executive.

The petitioners’ concerns prevailed over the bench, which struck down both the NJAC Act and the Constitution 99th Amendment Act 2014, on grounds that if the parliament has the authority to regulate the procedure for the appointment of judges – including the CJI – by framing laws, it would mean legislative control, which would breach the “independence of the judiciary.”

The convention of appointing the senior-most judge of the Supreme Court as the CJI, following the retirement of the outgoing CJI, was given the stamp of approval in the Second Judges Case in 1993.

In that case, a nine-judge bench had held that “there is no reason to depart from the existing convention and, therefore, any further norm for the working of Article 124(2) in the appointment of Chief Justice of India is unnecessary.”

The appointment of the CJI, by its very nature, was considered distinct from the appointment of other judges of the apex court and the high courts.

The convention has its own justification – there is no provision for consultation in the constitution between the CJI and the president for the appointment of the CJI, unlike in the case of the appointment of other judges and it is for that reason that a healthy convention has developed of appointing the senior-most judge of the court as the CJI.

This convention, the Supreme Court was told in the Second Judges Case, is in keeping with the concept of independence of the judiciary as it excludes the possibility of executive interference in the matter. The Supreme Court’s nine-judge bench accepted this contention and ruled accordingly. No wonder then that in the NJAC case, another five-judge bench of the Supreme Court found this convention inviolable.

Seniority convention has no roots

Abhinav Chandrachud, a scholar and lawyer, however, found little evidence for this convention prior to the establishment of the Supreme Court, specifically in the high courts of Bombay, Calcutta, Madras, Allahabad, Patna, or in the Federal Court of India (FCI).

According to him, the seniority norm for the appointment of the chief justices of these high courts and in the FCI did not prevail. He observed that when viewed as a whole, the seniority convention in the high courts of India was an exception rather than a rule.
He adds that in the1950s, the appointment of the CJIs on the norms of seniority was an aberration, today, however, it is perhaps indispensable in order to safeguard the independence of the judiciary.
Chandrachud cites a few instances of non-judges becoming chief justices in high courts – Basil Scott was an advocate general and he directly became the chief justice of the Bombay high court, while P.V. Rajamannar was made the chief justice of the Madras high court by superseding four judges. William Patrick Spens was appointed as a chief justice of the federal court – a post vacated by his predecessor, Maurice Gwyer – even though he was not a federal court or a high court judge.

India’s first attorney general, M.C. Setalvad, was asked by the then home minister, K.N. Katju, whether he was interested in taking Kania’s place as the CJI – referring to a custom prevalent in England where the attorney general replaces the lord chief justice. Setalvad reminded the home minister that he had already surpassed the retirement age. Setalvad apparently suggested to the home minister that M.C. Chagla, the then chief justice of the Bombay high court, be considered for the post.

There is evidence suggesting that the framers of the Indian constitution contemplated someone other than the Supreme Court judge to become the CJI in order to ensure that the incumbent has a longer term in office than what most CJIs – elevated on the basis of seniority – can hope to have.

It is too late in the day to speculate what could have been the consequence had the six judges of the Supreme Court not threatened to quit in the face of Nehru’s threat to supersede Sastri in 1951. Since then, seniority as the only norm for the appointment of the CJI has become synonymous with the independence of the judiciary.

The rapid succession of the CJIs and the experience of outgoing CJI Thakur – who had just about a year in office as the chief justice before his retirement and was therefore at the receiving end of the government’s indifference to the collegium’s recommendations for filling vacancies of judges in high courts – should tell us that in the absence of fixed minimum tenures, no chief justice can hope to reform the judiciary and thereby ensure its independence from the executive on aspects other than the appointment of the CJIs.

The next CJI, Khehar, who assumes office on January 4, 2017, will retire on August 27, 2017, with a summer vacation lasting for one and a half months.

Seniority is not the ideal norm to determine the appointment of the CJI, but there appears to be no alternative at present with the government’s lack of respect for institutions hitting an all-time low.


https://thewire.in/88687/seniority-norm-cji-appointment-thakur-khehar/