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Hi Friends,

Thank you all for patronising and appreciating my blog. With your love and support, the Blog is shortly going to cross the 1,00,000 milestone !

As you are aware, I with assistance from my collegues was earlier running a Facebook page by the name 'Law Reservoir' where the posts about the latest / interesting judgements passed by the Supreme Court, High Courts and other Courts in India were being published. Now, the said FB page has been shifted to a more interactive and effective page 'LegalConsultIndia'. 

It is being run by LegalConsult, a legal startup and platform which provides legal consultation and advice to the masses at very affordable prices. I am glad to be associated as one of the mentor in the pool of legal experts at LegalConsult whose aim is to make legal advice easily accessible to every common man and to the remotest corner of the country at very affordable cost and from the convenience of their home or workplace or while commuting. One needs to simply book an online consultation by whatsapp at mobile no. 844 855 9696. More information can be had at LegalConsult .

 

If you like this initiative, you may Like, Subscribe, Recommend and Share the Facebook Page of LegalConsult to your friends and acquaintainces. In this way, you will be helping lots of needy people. 

Wishing you all a HAPPY NEW YEAR 2022.

Yours 

Sunil Goel

 

Government can not give away land at its sweet will in arbitrary manner, held Supreme Court

A bench of Supreme court of India comprising Justices M.Y.Eqbal and P.C.Ghosh in its judgment dated 26th September 2014 in the case of ‘CIDCO vs Platinum Entertainment’ Civil Appeal no. 9264/2014 upheld the CIDCO’s action  of cancelling the land allotted to the respondents allottees by undue favour at the instance of the Minister.

The court held “State and its agencies and instrumentalities cannot give  largesse  to any person at sweet will and whims of the political entities or officers  of the State.  However, decisions and action of the State must be founded on  a sound, transparent and well defined policy which shall be made known to  the public.  The disposal of Government land by adopting  a  discriminatory  and arbitrary method shall always be avoided and it should be  done  in  a  fair and equitable manner as the allotment on favoritism or  nepotism  influences the exercises of discretion.  Even assuming that if the Rule  or  Regulation prescribes the mode of allotment by entertaining individual  application  or by tenders or competitive bidding, the Rule of Law requires publicity to  be given before such allotment is made”.

The court further observed “we  observe,  that  notwithstanding Regulation 4, as contained in the Regulations, the appellant CIDCO may  take all endeavour to make allotments of plots by open tender or  competing  bids and shall not take any decision for allotment  of  Government  land  at  the instance of the Ministers and High Dignitaries for any purposes whatsoever”.

Click below for the Full Judgment.

Full Judgment

Supreme Court to reexamine JMM MPs bribery case judgment of 1998

A bench of Supreme Court of India comprising Justices T.S.Thakur, R.Banumathi in SLP (Crl) 2758/2014 titled as “Sita Soren vs Union of India through CBI” in its order on 23^rd September 2014 referred the issue of corruption by a MP/MLA to a larger bench. The court said “Since the issue arises for consideration is substantial and of general public importance, we refer these matters to a larger Bench of three Hon'ble Judges to be constituted by Hon'ble the Chief Justice of India”.

The case is that the Election Commission had in April 2012 countermanded the Rajya Sabha elections in Jharkhand and handed over probe to CBI following allegations of bribery. The CBI in its charge-sheet had accused Sita Soren of receiving Rs 1.5 lakh for proposing nomination and also casting vote in favour of Raj Kumar Agarwal, an independent candidate. She challenged her prosecution claiming immunity under Article 194(2) of the Constitution of India, which provided that no member of legislature of a state shall be liable to any proceedings in any court in respect of anything said or any vote given by him/her in the legislature or any committee thereof. She cited the 1998 judgment in JMM MPs bribery case ( in which the apex court granted immunity from prosecution to MPs who took bribe and voted to save the then Congress government of P V Narasimha Rao in Parliament). Jharkhand High Court rejected her plea by coming to a conclusion that since she had not voted for the candidate for whom the bribe was allegedly paid, she was not entitled to immunity from prosecution as in the JMM MPs case the Supreme Court had allowed Ajit Singh's prosecution for not voting even after allegedly taking bribe.

The Supreme Court was of the view that the 1998 judgment in JMM MPs bribery case need a fresh look and hence referred the matter to CJI for constitution of a 3-Judge bench to decide the issue. As per the procedure adopted by the apex court, a two-judge bench can refer a question of law to a three-judge bench, which alone can decide whether such a question merited consideration by a constitution bench. 

In JMM MPs bribery case, a Constitution bench by a 3-2 majority had held that those who took bribe but did not vote were liable to be prosecuted under Prevention of Corruption Act as they would not be entitled to immunity from prosecution granted to MPs under Article 105(2) of the Constitution. 

Supreme Court of India leave it to wisdom of PM and CM to appoint clean ministers with no criminal background

In response to a petition filed by one Manoj Narula (Writ Petition Civil No. 289/2005) seeking to stop MPs and MLAs chargesheeted but not yet convicted of crimes from being appointed ministers in Central and State governments respectively, the 5-Judge Batch of Supreme Court of India pronounced an important judgment on 27th August 2014. The Court said that framers of Constitution reposed faith and trust in the Prime Minister and Chief Minister and left it to their wisdom to appoint only those persons as ministers who have clean antecedents. The Court ruled that corruption is an enemy of the nation. As a trustee of the constitution, the PM is expected not to appoint unwarranted persons as ministers. The Court wished that politicians with a "criminal background" should not serve in government.

The court however said it could not disqualify the ministers, as the constitution allows prime minister to appoint his own cabinet, but said it hoped that the PM will honor the spirit of the constitution in appointing ministers. 

Earlier, vide judgment in case of Lily Thomas vs UOI on 10th July 2013, Supreme Court had struck down Section 8 (4) of the Representation of People Act 1951. As a result of said ruling, if a MP or MLA is "convicted" of an offence prescribed in Section 8(1) & (2), then he will immediately cease to be an MP or MLA and thus will thus lose his ministership if he is a minister. There was an outcry by the politicians. The then Government headed by Congress introduced a bill called Representation of People (Second amendment and Validation) Act 2013 to dilute the judgment to help the tainted politicians but before the bill could be passed, the parliament was adjourned. The Government that immediately brought an ordinance to undo the said judgment but after severe public criticism, the ordinance was dropped and not pursued.

In another judgment in case of Chief Election Commissioner vs Jan Chowkidar on 10th July 2013, Supreme Court had held that the persons who are either in prison serving a sentence after conviction or who are in lawful custody of police, are debarred from contesting elections of MP or MLA. The Government succeeded in undoing this judgment by getting the Representation of the People (Amendment and Validation) Bill, 2013 passed in Rajya Sabha on 27th August 2013. In Lok Sabha, it was passed on 6th September 2013 without any discussion. Thus, the bar on convicted politicians from contesting elections has been removed by the Government by said amendment.

Click here for Full Text of the Judgment.

http://judis.nic.in/supremecourt/imgs1.aspx?filename=41850

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Supreme Court rejects the various petitions challenging validity of National Judicial Appointment Commission Bill

The Supreme Court on 25th August 2014 rejected a bunch of PILs challenging the validity of Constitution (99th Amendment) Bill and the National Judicial Appointment Commission Bill 2014 on the ground that these are pre-mature as the bill is still in the process of becoming law and it has only been passed by the Rajya Sabha and Lok Sabha at the moment. Since it will amend Articles 124(2) and 217(1) of the Constitution of India, it needs to be ratified by the legislatures of at least half of the States of India (i.e. min. 15 States) before being sent to the President for approval. This law will replace the present collegium system for appointment of Supreme Court and High courts judges under which the collegium comprising three senior most judges of Supreme court including the CJI recommends the appointment of High Court and Supreme Court judges. 

Under the new system proposed to be introduced by this new law, the appointment will be made by a Commission which will be called National Judicial Appointment Commission which will comprise of 6 persons comprising the Chief Justice of India, two other seniormost judges of Supreme Court, Law Minister of India and two eminent personalities who would be chosen by a panel of Prime Minister, Chief Justice of India and leader of single largest party in Lok Sabha. 

The Attorney General argued that the Court can not restrain a government from enacting a law, it will lead to chaos, it will amount to interference of judiciary in legislative and executive domain.

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Complaint under Section 138 NI Act for cheque dishonor can be filed only at place where the account from which the cheque is issued and dishonored is located

In a landmark decision which is going to have very wide ramifications in the cheque dishonor cases throughout India, a 3-Judge Bench of the Hon'ble Supreme Court of India on 1st August 2014 in the case titled as 'Dashrath Rupsingh Rathod vs State of Maharashtra' held that a complaint case under Section 138 of Negotiable Instruments Act for dishonor of cheque can be filed only in the court at the place where the bank branch in which the accused has his account and from which account the cheque was issued and dishonored, is located. This is departure from the earlier judicial dispensation whereunder the complainant could file case at any of the several places like the place where the cheque was deposited by the complainant. The latest judgment on territorial jurisidiction of criminal court in a case under Section 138 has taken into account the harassment faced by the people who are impleaded as accused in complaint cases filed under Section 138 at places far away from the accused's place. The court also took note of the fact that Section 138 of the NI Act is being rampantly misused so far as territorial jurisdiction for trial of the complaint is concerned.

The Court further clarified that all pending complaint cases under Section 138 where the case is still at early stage and recording of evidence under Section 145(2) of the NI Act after appearance of accused has not yet started, will be returned by the concerned magistrate's courts for the complainant to file the same in proper court within 30 days from the date of return of complaint. 

This judgment is going to affect lakhs of cases and is likely to set a milestone in criminal jurisprudence as far as the law relating to cheque dishonor is concerned. 

Read the Full Judgment.

Supreme Court issues notice to Election Commission on a PIL seeking direction for display of photographs of contesting candidates on EVMs

The Supreme Court of India has entertained a PIL which has sought directions to the Election Commission of India to display photographs of candidates on the EVMs to curb the practice of dummy candidates with same or similar names. The PIL raised the issue that quite often dummy candidates with same / similar names are set up by vested interests to confuse the voters which many a times alter the election result. This menace can be curbed if the photographs of the contesting candidates are displayed on the Electronic Voting Machines (EVMs) so that voters can meaningfully and properly exercise their right to vote and to ensure that their vote has gone to the candidate of their choice.

The Supreme Court’s bench of Chief Justice R.M.Lodha, justice Kurian Joseph and Justice RF Nariman, on 25^th July 2014, issued notice to the Election Commission of India returnable in ten weeks. The case is “Akash Gahlot vs Election Commission of India” Writ Petition (Civil) No.541/2014.

Sunil Goel advocate B.Sc. L.Lb L.Lm

Supreme Court comes to the rescue of person against whom false case of cheque dishonor was filed

Ramdass vs  Krishnanand   Criminal Appeal No.1522/2014

Facts of the case are that the cheque of Rs.5 lakh issued by the appellant Ramdass in favour of respondent was dishonored as the appellant instructed the bank to stop the payment. The respondent filed criminal case under Section 138 of Negotiable Instruments Act against the appellant. The complainant/respondent set up the case that he had given hand loan of Rs.1.75 lakh to the appellant and that to discharge said liability, the appellant had issued the cheque of Rs.5 lakh.  The case of the appellant, on the other hand, was that he had entered into an agreement with the complainant to purchase 3 acres of land belonging to the complainant for a total consideration of Rs.10,00,000/- and for that purpose, an advance of Rs.30,000/- in cash was paid and the Cheque in question for Rs.5,00,000/- was handed over to the complainant in presence of B.S. Pai (DW 2) and that when the complainant failed to execute the sale agreement and not even willing to return the advance amount of Rs.30,000/- and the Cheque of Rs.5,00,000/-, he had to instruct the Bank to stop payment against the said Cheque.

The Magistrate Court took note of the financial condition of the complainant and found his version to be false on the evidence led before him and dismissed the complaint and acquitted the appellant of the offence.

The complainant filed appeal in the High Court. The High Court while allowing the appeal, set aside the judgment of the Trial Court and sentenced the appellant-accused to pay a fine of Rs.8,50,000/- within a period of eight weeks, failing which, to suffer simple imprisonment for a period of six months.

Aggrieved by the reversal of his acquittal, the appellant appealed to Supreme Court of India. The appellant deposited Rs.1,75,000/- in the trial court in accordance with the Supreme court’s order initially. However, vide final judgment dated 23^rd July 2014, the Supreme Court allowed the appeal and set aside the  judgment of High court and restored the judgment of trial court acquitting the appellant. The Court observed that it can not be believed that the complainant had raised loan of Rs.1,75,000/- only to give hand loan to his employer/appellant. The court observed that it is not trustworthy that complainant was in a position to extend hand loan of such a big amount to the appellant particularly when the complainant himself admitted that his net savings in a year came to Rs.10,000/- per year and he was working as lorry driver with appellant who used to deal in sale purchase of properties. The supreme court permitted appellant to withdraw Rs.1,75,000/- which were earlier deposited by the appellant in the trial court in pursuance to Supreme Court’s initial order.

Read the full Judgment.

Sunil Goel advocate B.Sc. L.Lb L.Lm

Supreme Court : Women increasingly using the anti-dowry law to harass the in-laws

The Supreme Court of India in an important judgment passed on 2nd July 2014, said that women are increasingly using the anti-dowry law to harass in-laws and restrained police from mechanically arresting the husband and his relatives on mere lodging of a complaint under Section 498A of the Indian Penal Code. The Supreme Court issued guidelines to be followed by the police in such matters. The Court further held that these guidelines have to be followed by the police and magistrates in all cases where offence is punishable upto 7 years. 

See complete Judgment

Cow Slaughter continues despite Constitution Bench judgment of Supreme Court of India

Dear Friends, The Hon’ble Supreme Court of India (Constitution Bench of 7 Judges) way back on 26^th October 2005 in a detailed judgment in the case of State of Gujarat vs Mirzapur Moti Kureshi Kassab Jamat and Ors. had banned the cow slaughter.

Are you aware that Articles 48 and 48-A of the Constitution of India lays down directive principles for the State to save the cows. These read as under :

"48. Organisation of agriculture and animal husbandry.--The State shall endeavor to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.

48-A. Protection and improvement of environment and safeguarding of forests and wild life.--The State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country.

Similarly, Article 51A of the Constitution of India lays down fundamental duty for every citizen of India to have compassion for living creatures. This article reads as under:

51-A. Fundamental duties.--It shall be the duty of every citizen of India--

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;"

However, sadly, the slaughter of our mother cow is still rampant in India. Cow is worshiped by many in India and it hurt our sentiments when the cow is slaughtered. Those who want to eat non-veg food have alternatives. Secularism and respect for other religions does not mean that Hindu values can be ignored or suppressed. The biggest problem is that people do not understand the meaning of the term "SECULAR" country. Secular exactly means a country which allows all the religions to be flourished without hurting sentiments of each other.

Every single State in India should ban cow slaughter.  Some State Governments have made laws to prevent cow slaughter but these are not being implemented. The remedy is that Central Government should make a central law for preventing cow slaughter which would be applicable throughout India and then to strictly implement and enforce this law.

In these ensuing Lok Sabha elections, let us impress upon and persuade our candidates to take a vow for passing a central legislation on prevention of cow slaughter.

The Constitution Bench judgment of Supreme Court can be accessed at following link :

https://www.dropbox.com/s/qwbisfkwt7xuqq6/State%20of%20Gujarat%20vs%20Mirzapur%20Moti%20Kureshi%20Kassab%20Jamat-SC-7Judges-26.10.2005-qureshi%20judgment%20on%20cow%20slaughter%20overruled.doc

Kindly circulate this post far and wide. 

Let us save our mother cow.

Sunil Goel advocate B.Sc. L.Lb L.Lm

Validity of ‘Aadhar card’ scheme of UIDAI under scrutiny of Supreme Court of India

The constitutional validity of the nationwide aadhar card scheme being implemented by the Unique Identification Authority of India (UIDAI) at the instance of the Central Government headed by congress party is being scrutinised by the Supreme Court of India.

A PIL being WP (C) No.494/2012 titled as “Justice K.S.Puttaswamy (Retd) vs Union of India” was filed by retired Karnataka High Court Judge K.Puttaswamy in this regard. By way of an interim order passed on 23rd September 2013, the Supreme Court ruled that aadhar card can only be issued to those with proven Indian nationality and cannot be mandatory for accessing public services and subsidies. The Supreme Court held “In the meanwhile, no person should suffer for not getting the Adhaar card inspite of the fact that some authority had issued a circular making it mandatory and when any person applies to get the Adhaar Card voluntarily, it may be checked whether that person is entitled for it under the law and it should not be given to any illegal immigrant”.

On 26th November 2013, the Supreme Court sought responses of all states in two weeks on the constitutional validity of the aadhar card scheme being implemented by the UIDAI.  It is pertinent to note that UIDAI was not created by a statute but by a decision of an empowered group of ministers as part of the Planning Commission without any delegation of power to collect sensitive personal data in the shape of biometric details of citizens. The contention of PIL petitioner is that it is a serious legal and constitutional issue. The UIDAI does not have statutory existence. It enters into memorandum of understanding with the states, which do not have the sanctity of even a contract. The state in turn appoints registrars, who could either be a government official or a private person. The registrars engage private companies/organizations to collect sensitive biometric data without there being any statutory mechanism to protect this data from being commercially exploited by individuals. The Government says that the aadhar scheme is voluntary but the fact is that state governments make Aadhaar cards mandatory for registration of marriages, getting ration cards, registration of sale deeds, getting subsidized LPG cylinders, admission of students to schools and colleges, getting employees provident fund benefits and even grant of scholarships to students by the University Grants Commission. 

Sometime back, a Goa court directed UIDAI to give the CBI biometrics of all residents enrolled with Aadhaar in the state to help solve the gangrape of a seven-year-old girl. The court noted that the database, which includes recording of fingerprints, iris and facial images of applicants, was supposed to be devoid of duplication and tamper-proof. There were some chance fingerprints recovered from the scene of crime and the magistrate thought UIDAI could match these fingerprints with its database to help ascertain the identities of the assailants. Aggrieved by this order, the UIDAI moved Bombay High Court and argued that the validation of the magistrate’s order will open the floodgates of such directives by other courts as well other authorities. It added the UIDAI system was developed “for civilian use and for non-forensic purposes”. But the High Court recorded that the UIDAI had agreed to test the competence of its database in comparing the chance fingerprints found at the scene of crime with its biometric record and also asked the director general of the Central Forensic Science Laboratory to examine the technological capabilities of the UIDAI database. Terming the High court’s order as wrong and erroneous, the UIDAI, appealed to the Supreme Court by way of SLP (Crl) No(s).2524/2014.

The Supreme Court by way of its interim order passed on 24th March 2014 in the said appeal stayed Bombay High Court’s order. The Supreme Court also restrained UIDAI from transferring any biometric information of any person who  has  been allotted the Aadhaar number to any   other agency  without  his consent in writing. The Supreme Court further ruled that no person shall be deprived of any  service  for  want  of Aadhaar number in case he/she is otherwise eligible/entitled. The Supreme Court also directed all the authorities to modify their  forms/circulars/likes so as to not compulsorily require the Aadhaar number.

All the petitions challenging validity of aadhar card are tagged and are listed in Supreme Court of India on 28th April 2014.

Sunil Goel advocate 

B.Sc. L.Lb L.Lm

Supreme Court of India directs Central Government to take concrete steps to bring Black Money stashed abroad

In a landmark judgment, the Hon'ble Supreme Court of India vide its judgment dated 4th July 2011 directed the Central Govt to take concrete steps for bringing Black money stashed abroad, to India. This order was passed on a PIL filed by noted lawyer Mr. Ram Jethmalani. 

However, instead of complying with the said judgment, the Central Government challenged the said judgment by filing a Review Petition before the Supreme Court. The Govt requested the court to do away with the two retired Supreme Court judges who had been appointed by the Supreme Court to head the Committee of Govt. officers to oversee and implement this task. This Review Petition of the Central Govt has been rejected by the Supreme Court by its Order dated 26th March 2013. 

Read this beautiful judgment in full. 

Sunil Goel advocate B.Sc. L.Lb L.Lm

Supreme Court of India awards highest compensation in medical negligence case

Dear Friends,

The Supreme Court of India has pronounced a landmark judgment on 24th October 2013 on the quantum of compensation to be awarded in cases of medical negligence. This case pertains to Dr.Kunal Saha, a doctor in US, whose wife died due to medical negligence due to medical negligence of the doctors and hospital at Kolkatta about 15 years back. The National Consumer Disputes Redressal Commission had awarded Rs.1.34 crore which has been enhanced by the Supreme Court to Rs.6.08 crore. 

The Supreme Court, in this 210 page judgment, referred to several earlier judgments of itself  as well as of foreign courts and beautifully discussed the law of compensation in detail. The Court also advised the medical practitioners to be vigilant in future and to continuously update themselves with latest developments in medical field so that such incidents do not recur.

This judgment, I feel, will go a long way, in furthering the right to good health of the masses and will check the tendency on part of some medical practitioners to take their patients and their work lightly. 

Read the full judgment.

Sunil Goel advocate B.Sc. L.Lb L.Lm

Five recent Judgments which will change the political scene and destiny of India

Five recent Judgments which will change the political scene and destiny of India

 1.   People’s Union for Civil Liberties vs Union of India

     Writ Petition (Civil) No.161/2004

     Judgment dated 27^th September 2013

     By Supreme Court of India

In this landmark judgment, the Supreme Court armed the voters with the right to cast a negative vote and reject all candidates at the time of voting in case the voter is not satisfied with any of the candidate. In this context, the Court directed the Election Commission of India to provide a ‘None of the Above’  (NOTA) button at the end of the panel on the Electronic Voting Machine (EVM) and in ballot papers. 

The court held that the election is a mechanism, which ultimately represents the  will  of  the  people.  The essence of the electoral system should be to ensure  freedom  of  voters  to exercise their free choice. Article 19 guarantees all individuals the  right to speak, criticize, and disagree on a particular issue. It  allows people  to  have  diverse  views,  ideas  and ideologies. Not allowing a person to cast vote negatively defeats  the  very freedom of expression and the right ensured in Article 21  i.e.,  the  right to liberty.  The  voters’  participation  in  the  election  is  indeed   the participation in the democracy itself. Non-participation causes  frustration and disinterest, which is not a healthy sign of  a  growing  democracy  like India.

For democracy to  survive,  it  is  essential that the best available men should be  chosen  as  people’s  representatives for proper governance of the country. This can be best achieved through  men of high moral and ethical values, who win the elections on a positive  vote. Thus in a vibrant democracy, the voter  must  be  given  an  opportunity  to choose none of the  above  (NOTA)  button,  which  will  indeed  compel  the political parties to nominate a sound  candidate. 

Democracy is all about choice. This choice can be better expressed  by giving the voters an opportunity to verbalize  themselves  unreservedly  and by imposing least restrictions on their ability to make such  a  choice.  By providing NOTA  button  in  the  EVMs,  it  will  accelerate  the  effective political participation in the present state of democratic  system  and  the voters in fact will be empowered. 

Giving  right  to  a  voter  not  to  vote  for  any  candidate  while protecting his right of secrecy  is  extremely  important  in  a  democracy. Such an option gives the voter the right to  express  his  disapproval  with the kind of candidates that are being  put  up  by  the  political  parties. When the political parties will realize that a large number  of  people  are expressing their disapproval with the  candidates  being  put  up  by  them, gradually there will be a systemic change and the political parties will  be forced to accept the will of the people and field candidates who  are  known for their integrity. 

In  the  existing system a dissatisfied voter ordinarily does not turn up for voting which  in turn  provides  a  chance  to  unscrupulous  elements  to  impersonate   the dissatisfied voter and cast a vote. A provision  of  negative  voting  would  be  in  the  interest  of  promoting democracy as it would send clear signals  to  political  parties  and  their candidates as to what the electorate think about them.

The court noted that even the voting machines in the Parliament  have  three Buttons and an option is given  to  the MPs  to  press  the  ABSTAIN  button. The court also noted that 13 countries have provided for negative voting in their electoral systems. By pressing the NOTA  button  the  voter is in effect saying that he is abstaining from  voting  since  he  does  not find any of the candidates to be worthy of his vote.

This judgment will go a long way in cleansing the Indian politics from the evil of criminals and bad legislators. 

Read the full Judgment.

            2. Resurgence India vs Election Commission of India

    Writ Petition (Civil) No. 121/2008

    Judgment dated 13^th September 2013

    By Supreme Court of India

In this landmark verdict, the Supreme Court endorsed “right to know’ of the citizens and held that the voter has the elementary right to know the full particulars of a candidate who is to represent him in the parliament or the State Assemblies. The filing of affidavit by a candidate (disclosing personal details of the candidate including his assets and civil / criminal cases, if any, pending against him) at the time of filing his nomination papers is a very important stage. Earlier, many candidates used to leave certain columns in the affidavit as blank to conceal their assets or pendency of exact cases against them. The Court held that if particulars are left blank in the affidavit, it will render the affidavit nugatory and the candidate’s nomination paper would be rejected. The court held that if the candidate fails to fill the blank particulars even after reminder by the Returning Officer, the nomination paper is fit to be rejected.

Read the full Judgment.

     3. Lily Thomas vs Union of India

Writ Petition (Civil) No.490/2005

Judgment dated 10^th July 2013

By Supreme Court of India

Section 8(1) & (2) of the Representation of People Act 1951 prescribes that a person shall be disqualified for being chosen or for being a member of either House of Parliament or of legislative assembly or legislative council of a State if he is convicted of an offence punishable under specific laws specified therein. The disqualification is for a period of 6 years from the date of conviction if he is sentenced to only the fine. The disqualification is for a further period of 6 years from the date of his release if he is sentenced to imprisonment. Section 8(3) prescribes that if a person is convicted of an offence not covered under Section 8(1) or 8)2) and is sentenced to imprisonment for two years or above, then he is disqualified from the date of conviction and shall continue to be disqualified for a further period of 6 years from the date of his release. However, Section 8(4) provided a protection to such persons. The protection was that if a person is member of Parliament (MP) or member of a legislature of a State (MLA) on the date of his conviction, then the disqualification incurred in Section 8(1), (2) or (3) shall not take effect unless three months have elapsed from the date of conviction or until the appeal or revision filed by him in respect of conviction or sentence is disposed off by the Court if such appeal/revision is filed within said period of three months.

It is a known fact that such politicians who were convicted by a court still managed to wriggle out of the rigours of law by filing an appeal / revision and then ensuring that it is not decided for years.

The Supreme court in this judgment has put an end to this practice and quashed Section 8(4) altogether.

The Supreme Court observed that the  affirmative  words used in Articles 102(1)(e) and 191(1)(e) of the Constitution of India confer power on Parliament to  make one law laying down the same disqualifications for a person  who  is  to  be chosen as member of either House  of  Parliament  or  as  a  member  of  the Legislative Assembly or Legislative Council of a State and for a person  who is a sitting member of  Parliament  or  a  House  of  the  State Legislature. The  words  in  Articles  101(3)(a)  and  190(3)(a)  of  the Constitution put express limitations on such powers  of  the  Parliament  to defer  the  date  on  which  the  disqualifications   would have effect. In view thereof, the Supreme Court held that  Section 8 (4) of the Representation of People Act 1951  which  carves  out  a saving in the case of sitting members of  Parliament  or  State  Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section  8 of the Act or which defers the date on which the disqualification will  take effect in the case of a sitting member of Parliament or a State  Legislature is beyond the powers conferred on Parliament by the Constitution. The Court thus held that Parliament has  exceeded  its  powers  by enacting Section 8 (4) of the Representation of People Act 1951 and accordingly Section 8 (4) of the Act was held to be ultra vires the Constitution.

Read the full Judgment.

    4.  Chief Election Commissioner vs Jan Chowkidar (People’s Watch)

Civil Appeal No. 3040-3041/2004

Judgment dated 10^th July 2013

By Supreme Court of India

In this judgment, the Supreme Court noted that as per Section 62(5) of the Representation of People Act 1951, a person who is confined in prison under a sentence of imprisonment (i.e. who has been convicted by a court after trial) or who is in lawful custody of police, can not vote at any election and is thus not an “elector” defined in Section 2(e). As per Section 2(e), an “elector” is a person whose name is entered in electoral rolls of a constituency and who is not disqualified from voting. On the same analogy, the Supreme Court upheld the order of Madras High Court that if a person can not vote and is not an elector, then such a person can not also contest elections for parliament or state legislative assemblies as Section 4(d) and Section 5(c) says that if a person is not an ‘elector’, he is not qualified to be chosen to fill a seat in the House of the People (Lok Sabha) and Legislative assembly of a State respectively.  

The High Court had held as under :

“A right to vote is a statutory right, the Law gives it, the Law takes it away.  Persons convicted of crime are kept away from elections to the Legislature, whether to State Legislature or Parliament, and all other public elections. The Court has no hesitation in interpreting the Constitution and the Laws  framed under it, read together, that persons in the lawful  custody  of the Police also will not be voters, in  which  case,  they  will neither be electors.  The Law temporarily takes away the power of such persons to go anywhere near the election scene.  To vote is a statutory right. It is privilege to vote, which privilege may be taken away.  In that case, the elector would not be qualified, even if his name is on the electoral rolls. The name is not struck off, but the qualification to be an  elector  and the privilege to vote when in the lawful custody of  the  police, is taken away.”

The Supreme Court upheld the High Court’s judgment. This judgment debars the persons who are either in prison serving a sentence after conviction or who are in lawful custody of police, from contesting elections of MP or MLA.  

Read the full Judgment.

  

5.   Subhash Chandra Aggarwal vs Indian National Congress & others

Judgment dated 3^rd June 2013

By Central Information Commission (Full Bench)

The Full Bench of the Central Information Commission headed by Mr. Satyendra Mishra, the Chief Information Commissioner, in this landmark ruling, held that the political parties which were subject matter of said appeal, viz. Inbdian National Congress (INC), Bhartiya Janta Party (BJP),  

CPI(M), CPI, NCP and Bahujan Samaj Party (BSP) are public authorities under Section 2(h) of the Right to Information (RTI) Act. Now people can file RTI applications with these parties and obtain any information pertaining to their working, like the source of their finances and the information related to their income and expenses. This will usher in a new era of transparency. This may put a stop to the rampant practice of show off and spending thousands of crores in the elections as the parties and candidates would be under public scrutiny through RTI.

Read the full Judgment.

Sunil Goel advocate B.Sc. L.Lb L.Lm

Supreme Court of India permits Mumbai Dance bars to reopen

Supreme Court of India permits Mumbai Dance bars to reopen

On 17th July 2013, a Bench of the Supreme Court of India headed by CJI Altamas Kabir passed yet another important judgment in the case of “State of Maharashtra & others vs Indian Hotel & Restaurants Association & others”. The Supreme Court quashed the ban imposed about 7 years ago by Maharashtra govt. on the functioning of Dance bars in Mumbai. The Govt of Maharashtra had in 2005 brought in an amendment in the Bombay Police Act which was then challenged in the High court by an association representing restaurants and bars. The High Court gave relief to the dance bar owners but the Govt had challenged High Court’s verdict in the Supreme Court.

The dance bar owners will now have to apply for a license to the government before reopening.

Read the full Judgment.

Sunil Goel 

advocate 

B.Sc. L.Lb L.Lm

SUPREME COURT OF INDIA BY 2:1 MAJORITY QUASHES NATIONAL ELIGIBILITY CUM ENTRANCE TEST (NEET) for admission TO MEDICAL COLLEGES

Dear Friends,

A three-judge bench of  Supreme Court of India headed by CJI Justice Altamas Kabir (who retires on 19^th July 2013) has pronounced an important judgment on 18^th July 2013.  The Medical council of India had prescribed National Eligibility cum Entrance Test (NEET) for admission in MBBS, BDS and post-graduate medical courses for improvement in standards of medical education and medical students. The NEET is a single entrance-cum-eligibility-test for admission in all medical colleges in India. The three-judge bench by a 2:1 majority (CJI Altamas Kabir and Justice Vikramajit Sen) quashed the NEET and held that the Medical Council of India had no powers to conduct single entrance examination.

However, the 3^rd judge Justice A.R.Dave gave separate dissenting judgment and held that the notification prescribing NEET for admission to medical colleges is not only legal but is a boon for students aspiring to join medical profession. He inter-alia observed : “In my  opinion,  introduction  of  the NEET would ensure more transparency and less hardship to the  student  eager to join the medical profession.  Let us see the consequence,  if the apex bodies of medical profession are not permitted to conduct the  NEET.  A student, who is good at studies  and  is  keen  to  join  the  medical profession, will have to visit  several  different  States  to appear at different examinations held by different medical colleges or institutes so as to ensure that he gets admission  somewhere.   If  he appears only in one examination conducted by a  particular  University  in a particular State and if he fails there,  he  would  not  stand  a chance to get medical education at any other  place.   The  NEET  will facilitate all students desirous of  joining  the  medical  profession because the students will have to appear only at one  examination  and on the basis of the result of the NEET, if he is  found  suitable,  he would be in a position to get admission somewhere in the  country  and  he can have the medical education  if  he  is  inclined  to  go  to  a  different place.  Incidentally, I may state here that  learned  senior counsel Mr. Gupta had informed the Court that some  medical  colleges  who are more in a profiteering business rather than in the noble  work  of imparting medical education, take huge amount by way of donation or capitation fees and give admission to  undeserving  or  weak  students under one pretext or the other.   He had also  given  an  instance  to support the serious allegation made by him on the  subject.   If  only  one examination in the country is conducted and admissions  are  given on the basis of the result of the said  examination,  in  my  opinion, unscrupulous and money minded businessmen operating in  the  field  of  education would be constrained to stop their corrupt practices and  it would help a lot, not only to the deserving students but also  to  the nation in bringing down the level of corruption”.

The majority judgment will help Private Colleges who sell MBBS seats on caption. It is understood that Govt. is planning to refer this judgment to a Constitution Bench.

Read the full Judgment.

Sunil Goel advocate B.Sc. L.Lb L.Lm

Supreme Court of India answers presidential reference on 2G and disposal of natural resources by auction

Hi friends.

Those of you who are keenly following 2G spectrum scam must be aware that the President of India had recently sent a Reference under Article 143 of Constitution of India to the Hon'ble Supreme Court of India for giving opinion on various queries. The main question involved was whether the auction is the only option available to the Govt for disposing natural resources as was seemingly held by 2 Judge bench of Supreme court in its earlier judgment dated 2.2.2012.

The 5 Judge Bench has answered the Reference vide Judgement dated 27th September 2012. The text of this latest judgment is given hereunder for benefit of all my readers. Read the full judgment. 

Sunil Goel advocate 

B.Sc. L.Lb L.Lm

Supreme Court : Police bound to register the Complaint else face action

The Supreme Court of India recently passed an order thereby alleviating the often made grievance of the public that their compaint is not registered in the form of FIR by the police officers and they have to run from pillar to post for getting the FIR registered.

The relevant part of the said Order reads as under :
“The grievance in the present writ petition is that the occurrence had taken place in the month of May and, in that very month, on 11th May, 2008, the written report was submitted by the petitioner before the officer In-charge of the concerned Police Station, who sat tight over the matter. Thereafter, when the Superintendent of Police was moved, a First Information Report (for short "F.I.R.") was registered.Even thereafter, steps were not taken either for apprehending the accused or recovery of the minor girl child. It is a matter of experience of one of us (B.N. Agrawal, J.) while acting as Judge of Patna High Court, Chief Justice of Orissa High Court and Judge of this Court that in spite of law laid down by this Court, the concerned police authorities do not register F.I.Rs unless some direction is given by the Chief Judicial Magistrate or the High Court or this Court. Further experience shows that even after orders are passed by the concerned courts for registration of the case, the police does not take the necessary steps and when matters are brought to the notice of the Inspecting Judges of the High Court during the course of inspection of Courts and Superintendents of Police are taken to task, then only F.I.Rs are registered. In large number of cases investigations do not commence even after registration of F.I.Rs and in case like the present one, steps are not taken for recovery of the kidnapped person or apprehending the accused person with reasonable despatch. At times it has been found that when harsh orders are passed by the Members of the Judiciary in a State, the police becomes hostile to them for instance in Bihar when a bail petition filed by a police personnel, who was accused was rejected by a member of Bihar Superior Judicial Service, he was assaulted in the Court room for which contempt proceeding was initiated by Patna High Court and the erring police officials were convicted and sentenced to suffer imprisonment. On the other hand, there are innumerable cases that where the complainant is a practical person, F.I.Rs are registered immediately, copies thereof are made over to the complainant on the same day, investigation proceeds with supersonic jet speed, immediate steps are taken for apprehending the accused and recovery of the kidnapped persons and the properties which were subject matter of theft or dacoity. In the case before us allegations have been made that theStation House Officer of the concerned Police Station is pressurising the complainant to withdraw the complaint, which, if true, is a very disturbing state of affairs. We do not know there may be innumerable such instances. In view of the above, we feel that it is high time to give directions to Governments of all the States and Union Territories besides their Director Generals of Police/Commissioners of Police as the case may be to the effect that if steps are not taken for registration of F.I.Rs immediately and copies thereof are not made over to the complainants,they may move the concerned Magistrates by filing complaint petitions to give direction to the police to register case immediately upon receipt/production of copy of the orders and make over copy of the F.I.Rs to the complainants, within twenty four hours of receipt/production of copy of such orders. It may further give direction to take immediate steps for apprehending the accused persons and recovery of kidnapped/abducted persons and properties which were subject matter of theft or dacoity. In case F.I.Rs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the concerned Magistrate would be justified in initiating contempt proceeding against such delinquent officers and punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them inasmuch as the Disciplinary Authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same. Keeping in mind these facts, we are of the view that notices should be issued to Government of all the States and Union Territories besides Director Generals of Police/Commissioners of Police as the case may be. Issue notice to the Chief Secretaries of all the States and Union Territories and the Director Generals of Police/Commissioners of Police,as the case may be, to show cause as to why aforesaid directions be not given by this Court. Notices may be sent to the parties by Fax and it should be mentioned therein that the order has been put on the Website of the Supreme Court of India so that they may file response without loss of time.”