Month: November 2020

Uttar Pradesh promulgates anti-conversion (love-jihad) law.

A marriage in Uttar Pradesh will be declared “null and void” if the conversion of a woman is solely for that purpose. Those wishing to change their religion after marriage have to apply to the district magistrate at least 60 days prior to conversion. The Priest/Moulana performing the conversion without this notice shall also be liable to imprisonment.

U.P. Unlawful Religious Conversion Prohibition Ordinance:

Thus the Uttar Pradesh became the first state to bring an anti-love jihad law after Governor Anandiben Patel promulgated the UP Prohibition of Unlawful Conversion of Religion Ordinance 2020. The law prohibits forcible or “dishonest” religious conversions and is applicable from today (28th November 2020) in Uttar Pradesh to check ‘love jihad‘.

For conversions of minors and women of SC/ST community, there will be a jail term of three to 10 years with a Rs 25,000 penalty. In case of mass conversion, offenders can be penalised with a jail term of 3-10 years and a fine of at least Rs 50,000.

Read full Ordinance here:

Click to access anti-love-jihad-law.pdf

Fixation of seniority in a newly created cadre

Interpretation of Rule 27 of the Rajasthan Commercial Taxes Subordinate Services (General Branch) Rules, 1975:

Delay in appointment made through multiple advertisement:

“Seniority in respect of persons appointed on the posts included in the cadre of service shall be as per the provisions of these rules and shall be fixed from the date of their appointment. Those appointed on ad hoc or urgent temporary basis, they shall not be considered after their regular selection.

Provided

(1)That the seniority inter-se of the persons appointed to the Service before the commencement of the rules, and/or in process of integration of the Services of the pre-reorganisation of States of Rajasthan or the Services of the new State of Rajasthan established by the State Re-organisation Act, 1956, shall be determined, modified or altered by the Appointing Authority on an ad hoc basis;

(2)That the persons selected and appointed as a result of a selection, which is not subject to review and revision, shall rank senior to the persons who are selected and appointed as a result of subsequent selection. Seniority inter se of persons selected on the basis of seniority-cum-merit and on the basis of merit in the same selection shall be the same as in the next below grade;”

Keeping in mind that the advertisements (for filling the entire cadre, in both the quotas or streams of recruitment) were issued one after the other, and more importantly, that this was the first selection and recruitment to a newly created cadre,the delay which occurred on account of administrative exigencies (and also the completion of procedure, such as verification of antecedents) the seniority of the promotees given on the basis of their dates of appointment, is justified by Rule 27 in this case.

Read Full Judgment here:

Click to access 30109_2018_33_1502_24819_Judgement_26-Nov-2020.pdf

Bail not the Jail is the principle in Criminal Law of India

Final judgment in Arnab Goswami case:

The High Court was of the view that the prayers for interim relief proceeded on the premise that the appellant had been illegally detained and since he was in judicial custody, it would not entertain the request for bail or for stay of the investigation in the exercise of its extra-ordinary jurisdiction. The High Court held that since the appellant was in judicial custody, it was open to him to avail of the remedy of bail under Section 439 of the CrPC. The High Court declined prima facie to consider the submission of the appellant that the allegations in the FIR, read as they stand,do not disclose the commission of an offence under Section 306 of the IPC. That is how the case has come to Supreme Court.

Human Liberty

Human liberty is a precious constitutional value,which is undoubtedly subject to regulation by validly enacted legislation.As such, the citizen is subject to the edicts of criminal law and procedure.Section 482 recognizes the inherent power of the High Court to make such orders as are necessary to give effect to the provisions of the CrPC ―or prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Respondents are right in submitting that the procedural hierarchy of courts in matters concerning the grant of bail needs to be respected. However, there was a failure of the High Court to discharge its adjudicatory function at two levels –first in declining to evaluate prima facie at the interim stage in a petition for quashing the FIR as to whether an arguable case has been made out, and secondly, in declining interim bail, as a consequence of its failure to render a prima facie opinion on the first. The High Court did have the power to protect the citizen by an interim order in a petition invoking Article226. Where the High Court has failed to do so, this Court would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met. The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions

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Duty of Public Authority to act fairly.

Duty of Public Authority under article 14 f Constitution:

It is clear from the Board‟s conduct that it never responded to the letters written by Asiatic Steel; at least, no reply has been placed on record. Even Asiatic Steel‟s request for permission to carry-out the necessary clearance work at the cost of the board, was not responded to-either positively or negatively. Further, whenever any bidder approached the court complaining that the plot allotted was unusable, the Board decided, mostly contemporaneously, to refund the amount, even with interest. In the case of Asiatic Steel, however, when the demand was made for refund on 19.05.1998, the Board did not act,forcing the company to approach the court, firstly through a civil suit which was later withdrawn, and then in a writ petition.

Silence of public authority:

In the opinion of this court, the Board‟s complete silence in responding to Asiatic Steel’s demand for refund, coupled with the absence of any material placed on record by it suggesting that the complaints had no substance leaves it vulnerable to the charge of complete arbitrariness. The Board‟s conductor indifference in regard to the refund sought (in respect of which there was no meaningful argument on its part before the High Court) can be only on the premise that it wished the parties to approach the court, till a decision could be taken to refund the amounts received by it.

In this court‟s considered view, the Board’s action is entirely unacceptable. As a public body charged to uphold the rule of law, its conduct had to be fair and not arbitrary. If it had any meaningful justification for withholding the amount received from Asiatic Steel, such justification has not been highlighted ever. On the other hand, its conduct reveals that it wished that the parties should approach the court, before it took a decision. This behavior of deliberate inaction to force a citizen or a commercial concern to approach the court, rather than take a decision, justified on the anvil of reason (in the present case, a decision to refund) means that the Board acted in a discriminatory manner.

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Criticizing Government is illegal in State of Kerala

Free Speech???

Kerala Government has issued an ordinance amending the Police Act whereby any act of threatening, abusing, humiliating or defaming any person is made punishable. However there is no specific definition of these words chosen from moral vocabulary. Therefore the concerned police officer will be free to define these words and make arrests as per his or her whim and fancy.

Full Text of Ordinance

ORDINANCE No. 79 OF 2020

THE KERALA POLICE (AMENDMENT) ORDINANCE, 2020

Promulgated by the Governor of Kerala in the Seventy-first Year of the Republic of India.

AN
ORDINANCE
further to amend the Kerala Police Act. 2011.

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Transfer of windiing up proceedings from High Court to NCLT

Locus Standi of Creditor:

If any creditor is aggrieved by any decision of the official liquidator, he is entitled under the 1956 Act to challenge the same before the Company Court. Once he does that, he becomes a party to the proceeding, even by the plain language of the section. Instead of asking a party to adopt such a circuitous route and then take recourse to the 5th proviso to section 434(1)(c), it would be better to recognise the right of such a party to seek transfer directly.

Object of Insolvency Act:

The object of IBC will be stultified if parallel proceedings are allowed to go on in different fora. If the Allahabad High Court is allowed to proceed with the winding up and NCLT is allowed to proceed with an enquiry into the application under Section 7 IBC, the entire object of IBC will be thrown to the winds.

Proceedings transferred:

Therefore, we are of the considered view that the petitioner ­herein will come within the definition of the expression “party” appearing in the 5th proviso to Clause (c) of Sub­section (1) of Section 434 of the Companies Act, 2013 and that the petitioner is entitled to seek a transfer of the pending winding up proceedings against the first respondent, to the NCLT. It is important to note that the restriction under Rules 5 and 6 of the Companies (Transfer of Pending Proceedings) Rules, 2016 relating to the stage at which a transfer could be ordered, has no application to the case of a transfer covered by the 5th proviso to clause (c) of sub­section (1) of Section 434. Therefore, the impugned order of the High court rejecting the petition for transfer on the basis of Rule 26 of the Companies (Court) Rules, 1959 is flawed.

[Source: KALEDONIA JUTE AND FIBRES PVT. LTD. v. AXIS NIRMAN AND INDUSTRIES LTD. decided by SC on 9th November 2020]

Challenge to Order Framing of Charge in Writ Jurisdiction

Whether an order on charge would be an interlocutory order for the purposes of Section 19(3)(c) PCA:

If contrary to the above law, at the stage of charge, the High Court adopts the approach of weighing probabilities and re-appreciate the material, it may be certainly a time consuming exercise. The legislative policy of expeditious final disposal of the trial is thus, hampered. Thus, even while reiterating the view that there is no bar to jurisdiction of the High Court to consider a challenge against an order of framing charge in exceptional situation for correcting a patent error of lack of jurisdiction, exercise of such jurisdiction has to be limited to rarest of rare cases.

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Abusing a person belonging to Scheduled Caste: Culpability

Offence under SC/ST Act:

Offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r)of the Act is not made out.

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Supreme Court grants bail to Arnab Goswami

The Supreme Court has passed following orders on 11 November 2020:

We are of the considered view that the High Court was in error in rejecting the applications for the grant of interim bail. We accordingly order and direct that Arnab Manoranjan Goswami, Feroz Mohammad Shaikh and Neetish Sarda shall be released on interim bail, subject to each of them executing a personal bond in the amount of Rs 50,000 to be executed before the Jail Superintendent.

(Emphasis Supplied)

The Supreme Court has kept the SLP(Crl) No. 005598 – 005598/2020 (Crl.A. No. 000742 – 000742/2020) pending for final orders on a later date.

Read the full order here:
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