High Courts Weekly Round Up [Dec 14 – Dec 19]

1. Allahabad High Court Issues Notice To UP Govt On Pleas Challenging Love Jihad Ordinance; Posted For Hearing On Jan 7 (Ajit Singh Yadav v. State of UP & Ors.)

A bench of Chief Justice Govind Mathur and Justice Piyush Agarwal issued notices on a batch of PILs challenging the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020- promulgated by the UP Governor in November this year, to prohibit religious conversions in the name of 'love jihad'. The Court asked the UP Government to file a counter affidavit by January 4 and has fixed the case for hearing on January 7, 2020. Liberty is granted to the Petitioners to file rejoinder affidavit by January 6.

The main contention raised by the petitioner is that the ordinance is violative of Articles14 (Right to Equality), 15 (Prohibition of discrimination on grounds of religion, etc.), 21 (Right to life) and 25 (Freedom of conscience, etc.) of the Constitution. The petitioner also stated that there was no emergent ground to exercise the ordinance making power under Article 213 of the Constitution and that the State failed to show any unforeseen or urgent situation to justify the law.

Also Read: Allahabad High Court Stays Arrest Of Man Booked Under UP Ordinance Against Religious Conversion For Marriage

2. Covid-19: Allahabad High Court Expresses Concern Over Re-Opening Of Schools In UP; Inquires By What Date Vaccine Shall Be Available To Public (In-Re Inhuman Condition At Quarantine Centres And For Providing Better Treatment To Corona Positive v. State of U.P.)

A Division bench of Justice Ajit Kumar and Justice Siddhartha Varma took up the case suo moto where they addressed their concerns about re-opening of schools in the state. It expressed doubts as to whether teachers and students will follow proper COVID-19 guideline that have been laid out in the state. "There is always a possibility that young children might violate the guidelines," noted the Court.

The Court instructed all the District Administrations of all districts of Uttar Pradesh to carry out regular and proper inspections and to see that the schools are following all the COVID-19 safety protocols i.e., carrying out proper sanitization and wearing masks at all times.

3. Consent Of Wife, Estranged But Not Divorced, Necessary For Adoption Under Hindu Adoptions & Maintenance Act: Allahabad High Court (Bhanu Pratap Singh v. State of UP & Ors.)

A single Bench of Justice JJ Munir passed an order saying that a man, living separately from his wife without obtaining a divorce, needs the consent of such estranged wife to adopt a child under the Hindu Adoptions and Maintenance Act, 1956. "A wife living apart from the husband, utterly estranged, is still a wife, until the marital bond between the parties is severed by a decree of divorce or nullity of marriage," the Court held wrt the Hindu Marriage and Adoption Act.

This case was brought to light when a petition was filed by Bhanu Pratap Singh, seeking compassionate employment from the Forest Department, in place of his late uncle Rajendra Singh. The Court ruled his adoption to be null as he was adopted by his uncle, without the consent of his aunt. The Court emphasized that his uncle and aunt were still married but they had been living separately at the time.

4. Anticipatory Bail Can Be Granted Even After Chargesheet Has Been Filed: Allahabad High Court (Adil v. State of UP)

A single bench of Justice Siddharth recently held that anticipatory bail can be granted even after a chargesheet in the criminal case has been filed. The Court further stated that the anticipatory bail need not be in place for a limited duration of time. In many cases, it can even go on till the conclusion of the trial. The High Court's power to grant an applicant anticipatory bail doesn't conclude after the submission of the chargesheet.

This decision was given by the Court when it was presented with a pre-arrest bail plea filed by the petitioner, Adil. He had earlier been granted anticipatory bail till submission of the police report under Section 173(2) CrPC. He had put in the application, seeking a second anticipatory bail. The A.G.A, appearing on behalf of the state argued that that once anticipatory bail has been granted to the applicant and such bail has been availed, there is no circumstance where further anticipatory bail can be granted to him till the trial has been concluded. The Court dismissed the argument presented by the respondent and the petition was allowed.

5. Change Of Name Is A Part of Right To Expression Under Article 19 & Article 21 of Constitution of India: Allahabad High Court (Kabir Jaiswal v. Union of India and ors.)

A single bench of Justice Pankaj Bhatia observed that change of name is an expression guaranteed under Article 19 (1) (a) of the Constitution of India. This order was given in the light of a writ petition which was filed by Kabir Jaiswal, the petitioner, who had appeared for the class XI and XII CBSE exams as Rishu Jaiswal.

"The individual 'name' is a facet of right of expression, which is guaranteed under Article 19(1) (a) read with Article 21 of the Constitution of India. The freedom of expression as guaranteed under Article 19(1) (a) includes within its sweep all forms of expressions and name in the present world is clearly a strong expression," it stated.

6. Disqualified Candidate's Plea: Allahabad High Court Issues Notice To 10 Newly Elected Rajya Sabha MPs (Prakash Bajaj v. Sri Arun Singh & Ors)

A bench of Justice Jaspreet Singh issued notice to the ten newly elected Rajya Sabha members, on the plea filed by Prakash Bajaj. Bajaj claimed that in the Rajya Sabha elections that were held on 2^nd November, his nomination paper was illegally rejected by the Returning Officer, claiming that there was a fault in the petitioner's affidavit. The plea claimed that similar errors were prevalent in the affidavits filed by the respondent Nos.1 to 10 which were ignored and thus, the Returning Officer had adopted a double yardstick.

Other Developments:

• Man Conceals Criminal History To 'Hoodwink Court For Ulterior Motives': Allahabad High Court Imposes 5 Lakh Cost
• Hathras Case: Allahabad High Court Proposes Viewing Of Audio-Visual Material By Parties On Jan 16
• Activist Faisal Khan, Arrested For Offering Namaz At Mathura Temple Granted Bail By Allahabad High Court

Andhra Pradesh High Court

1. Andhra Pradesh High Court Refuses To Recall Order To Examine 'Constitutional Breakdown' Of State Machinery; Govt To Move Supreme Court

Division bench led by Justice Rakesh Kumar rejected an application filed by the State Government seeking recall of an order that questioned whether there was a "Constitutional Breakdown of Machinery" in the State. "I'm not allowing anyone to challenge my order in front of me…one may go to Supreme Court," remarked the Court.

The Attorney General of Andhra Pradesh, Subrahmanyam Sriram, told the High Court of Andhra Pradesh that they will be appealing to the Supreme Court about an order that was released on October 1.

Bombay High Court

1. Plea Seeking Suspension Of Kangana Ranaut's Twitter Account: Bombay HC To Consider Whether To Take Up Petition As A PIL

A division bench of Justice SS Shinde and Justice MS Karnik adjourned the hearing in a plea filed by Advocate Ali Kaashif Khan Deshmukh earlier this month praying for getting Kangana's twitter account permanently suspended for allegedly spreading "continuous hatred, disharmony in the country and attempting to divide the country with her extremist/derogatory tweets and promoting crime in the country", till Monday, December 21.

While hearing the petition filed by Advocate Deshmukh, the Bombay High Court asked whether he was personally affected by the tweets posted by Kangana Ranaut. "We think you aren't affected personally, but you are only espousing the cause of the community," Justice Shinde said. He further added, "We will see if this a public interest litigation."

Other Developments:

• Custodial Death Of 16 Yr Old Boy: Bombay HC Grants Rs 5 Lakh Compensation To Victim's Father
• "Victim's Statement Inconsistent": Bombay High Court Acquits Man Convicted Under POCSO Act For Allegedly Raping A 7 Yr Old
• Tweets Against Thackerays: No Coercive Action Against Sunaina Holey Till January 12, State Tells Bombay High Court
• CAA-NRC- No Evidence That Vehicles Were Damaged: Bombay High Court Grants Pre-Arrest Bail To 7 Protesters

Calcutta High Court

1. Steer Clear Of Unfairness At The Behest Of Political Executive: Calcutta High Court Warns District Magistrate (Biswanath Chowdhury v. Chairman, National Council for Teachers Education & Ors.)

A division bench of Justice Sanib Banerjee and Justice Hiranmay Bhattacharyya ordered the District Magistrate of Cooch Behar, Pawan Kadyan, to act as an impartial authority and to steer away from any sort of arbitrariness that might stem from his own political motivations. The bench observed, "Since Mr. Kadyan has a long career, the court wishes him well but reminds him that his obligation every step of the way in his official capacity is to the citizen and to steer clear of the road of unfairness, unreasonableness and arbitrariness, particularly, at the behest of the political executive".

The District Magistrate was supposed to visit the premises of the Uttarayan Law School and investigate about how the law school had been working. It had been alleged that this law school had not been following the Bar Council guidelines. The Court had asked the District Magistrate to prepare a report after the investigation, which he failed to do. The Court then initiated suo moto contempt proceedings against him. The District Magistrate acknowledged his mistake and submitted a second report, which the Court accepted. Further, the contempt charges were dropped. "In the light of the subsequent report prepared by the District Magistrate and the repentance shown for the earlier mistake, the District Magistrate is discharged. The contempt proceedings are dropped," observed the Court.

Delhi High Court

1. Court Fees When Remains Unutilized Shall Be Refunded Without Insisting For Court Orders: Delhi High Court

A single bench of Justice Naveen Chawla held that the State is bound to refund the Court Fees when it remains un-utilized, without insisting for court orders. The Court stated that while making the payment of court fees, stamp is the accepted mode of payment and the process gets completed only when the document is filed. Mere purchase of payment does not mean conclusion of the payment process. It was also held that that the prerequisite condition of submitting the Court order for refund must be done away with and the refund must be initiated on the satisfaction of the fund being unutilized.

The Court relied on s.30 of the Court Fees Act, 1870 and stated, "A reading of the above provisions would clearly indicate that the stamp is the mode of payment of court fees at the time of filing of the document. The incident of payment of such fees is the filing of the document and not the purchase thereof" The Court directed the State to initiate the refund of court fees which remained unutilized in the event of non-filing of the suit.

2. Public Institutions Should Make Their Orders Available Online As Part Of Good Governance: Delhi High Court (M/S Civicon Engineering Contracting India Pvt. Ltd. v. Central Board Of Trustees & Ors)

A single bench of Justice Pratibha M. Singh observed that all institutions, especially those providing services to the public, should make it a point to make all their orders, notices and other documents available online. The Court also stated that public departments such as the EPFO should have their orders and notices readily available online. The Court further added that the non-availability of such orders, especially during a Pandemic where all offices are operating in a virtual mode, is unjustified.

It also noted that having such orders readily available online would not result in petitions such as the present one being filed in a court, where the only goal of the Petitioner is to obtain the copy of an order from the concerned authority. "The availability of orders online would obviate the need for litigants to file petitions such as the present one wherein the only prayer is for making orders available," said the Court. They added that such an integration of technology to provide better services constitute a part of the good governance of the institutions.

3. Sexual Harassment At Workplace - Impossible To Ignore How Easily 'Common Woman' Is Put Down By 'Common Man', Less Said Better About Third Gender: Delhi High Court (Ms. X v. Union Of India & Others)

A bench of Justice Rajiv Sahai Endlaw and Justice Asha Menon ruled that when a woman makes allegations of sexual harassment against her male colleague, her credibility is not diminished because of such pending disciplinary proceedings against her. The Court further noted that even if she has been subjected to penalties, so long as there is nothing to show that the officer who imposed the punishment has been targeted by her by filing a complaint of sexual harassment against him, such punishments or proceedings cannot have any bearing on the inquiry into a sexual harassment complaint.

The Court ruled that absence of eyewitnesses cannot diminish the credibility of the complainant and when talking about the standard of proof required by the Internal Complaints Committee, the Court remarked, "The high standard of proof required in criminal trials is not called for during an inquiry by the Internal Complaints Committee under the Act." The Act here refers to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Court further noted that a woman who is perturbed by an action of a male colleague, either through words, gestures or action "cannot be expected to have such clarity of thought, to know who all were present at the time of the incident, and who all may have witnessed the incident and remember their names and faces."

4. Rape-Marriage Promise Can't Be Called Inducement When Sexual Activity Continues Over Indefinite Period Of Time: Delhi High Court [X v. State (Govt. Of NCT Of Delhi)]

"A promise of marriage cannot be held out as an inducement for engaging in sex over a protracted and indefinite period of time", remarked single bench of Justice Vibhu Bhakru while dismissing the appeal filed by a woman against Trial Court's Judgment after an inordinate delay of six hundred and forty days.

In this case, an FIR was registered under Sections 417 and 376 of IPC against a man by the appellant (woman). After listening to the testimony of the complainant, the Trial Court concluded by saying that the physical relationship that had been established between the prosecutrix and the accused had been consensual in the first instance her consent for physical relations had not been obtained by the accused by making any promise of marriage to her. After appealing her case, the High Court noted, "Her allegation that her consent has been vitiated on account of having been obtained by misrepresentation, is clearly, unsustainable." Accordingly, the appeal was dismissed on the basis that it was unmerited as well as on grounds of delay.

5. Delhi High Court Seeks Police Stand On AAP MLAs Plea To Protest Outside Home Minister, LG's Residences

The Single Judge bench of Justice Navin Chawla issued notices to the Delhi government and the police, and sought their stand on the petitions presented by the two AAP leaders by January 14. These AAP leaders had approached the court and had asked for permission to stage a 4-person protest against the alleged misappropriation of funds of Rs. 2500 crores by the North Delhi Municipal Corporation.

The Delhi Police, represented by Additional Standing Counsel Gautam Narayan, told the court that permissions were denied to the two AAP MLAs on the basis of a DDMA order which prohibited large gatherings in the city due to the prevailing COVID-19 pandemic. The police also told the court that in accordance with a Supreme Court order, it has issued a standing order prohibiting protests and dharnas in residential areas in the national capital.

6. "ICC Can't Comment On Personal Conduct Of Parties": Delhi High Court Shuns Moral Policing By Internal Committee In Cases Of Sexual Harassment At Workplace

A Single Bench of Justice Pratibha Singh in a progressive judgment delivered on a writ petition by a female employee of Punjab National Bank has held that the jurisdiction of Internal Complaints Committee (ICC) established under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, is limited to allegations of sexual harassment and whether a complaint is made out or not, to that effect. The ICC "cannot make comments on the personal conduct of the parties", the court has held.

The Court remarked, "any consensual relationship among adults would not be the concern of the Management or of the ICC, so long as the said relationship does not affect the working and the discipline of the organisation and is not contrary to the Rules or code of conduct binding on the said employees," and said that "moral policing is not the job of the management or the ICC".

Other Developments:

• Cow Video Row- Explain How 'Amul' Is Being Cruel To Cows: Delhi High Court Asks Uploader To Respond On Amul's Plea
• Delhi High Court Restrains AIIMS Nurses From Continuing Indefinite Strike
• Tablighi Jamaat- Possible That They Were Picked Up From Different Places & 'Maliciously Prosecuted': Delhi Court Acquits 36 Foreigners
• Fearing Harassment By Vigilante Groups & Authorities, Interfaith Couple From UP Moves Delhi High Court, Gets Protection

Gujarat High Court

1. Law Graduate's Application For Enrolment Pending With Bar Council Of Gujarat For Over A Year: High Court Issues Notice (Shivi Ravi Agrawal v. Bar Council Of India)

A single bench of Justice SH Vora issued a notice on a petition filed by a law graduate, whose application for enrolment with the Bar Council of Gujarat has been kept pending for over a year, thereby depriving her from the opportunity of appearing in the All India Bar Examination. The notice issued by the Court is returnable on 21^st December, 2020.

The petition was filed by Shivi Ravi Agrawal, stating that as per the Resolution passed by the Bar Council of India on 28.01.2017, the State Bar Council was required to enrol her provisionally, maximum within 20 days. Hence, the plea states that the action of the Bar Council of Gujarat in keeping her application pending for a year and a half is absolutely illegal, and arbitrary. The petitioner submitted that she was being deprived of taking the All India Bar Examination (AIBE).

Himachal Pradesh High Court

1. "The Attractive Brand Name Of Public Interest Litigation Can't Be Used For Suspicious Products Of Mischief": Himachal High Court [Sailesh Sharma v. State of HP & Ors.]

"Time has come to weed out the petitions, which though titled as public interest litigations are in essence something else," observed a Division Bench of Justice Tarlok Singh Chauhan and Justice Sandeep Sharma while expressing shock as to the number of frivolous petitions being filed before it under the garb of public interest.

The Court observed that a 'flooding' number of PILs are being filed, where even a minuscule percentage can legitimately be called public interest litigations. Thus, the Court observed that whenever a case is brought filed as a PIL, the case has to be closely examined to see whether it can actually be classified as a PIL.

Jammu & Kashmir High Court

1. Inadequate Menstrual Hygiene Facilities Impeding Right to Education: Jammu & Kashmir HC Seeks Center's Response (Court on its own motion v. Government of India & Ors.)

A bench of Chief Justice Gita Mittal and Justice Sindhu Sharma said that menstrual health should be read along with Right to Education, which has been enshrined under Article 21 A of the Indian Constitution. The Court focussed on how the female adolescents faced difficulties in exercising this right when they are deprived of basic menstrual hygiene products or knowledge about menstrual health. The Bench said that such illiteracy about such an important subject will lead to unhygienic practices that have serious health consequences, and increased obstinacy, which will lead to an eventual dropping out from schools.

The Court stated, "Inadequate Menstrual Hygiene Management (MHM) options would be a major barrier to education, even in Union Territories of Jammu & Kashmir and Ladakh, with many adolescent girls dropping out due to lack of access to sanitation facilities, menstrual products and the stigma associated with menstruation. The difficulties faced by these young girls are compounded by the fact that there are several educational facilities and institutions without basic toilet facilities. It cannot be denied that separate and basic toilets are essential for ensuring constitutional guarantees to these children." The Bench also said that it is the responsibility of the states to educate children about menstrual health and hygiene and to make sanitary products accessible to all adolescents, especially those who cannot afford them due to financial constraints.

Karnataka High Court

1. We'll Never Entertain A Petition Which Takes Us 100 Years Back': Karnataka High Court Dismisses Pleas To Stop Non-Hindus From Working In Offices Under HRICE Act

A division bench of Chief Justice Abhay Oka and Justice S Vishwajith Shetty dismissed writ petitions which sought for directions that non-Hindus should not be permitted to work in the office of Commissioners under Section 7 of the Karnataka Hindu Religious Institutions and Charitable Endowments Act (HRICE Act).

In this case the Petitioner had objected to appointment of one AB Ibrahim as a deputy commissioner with the Hindu Religious Institutions and Charitable Endowments Department, Mangaluru. While dismissing the plea, the Court observed took strong objection against the maintainability of the petitions as PIL. In this context, Chief Justice Oka said, "After the Constitution has come into force, we will never entertain such petitions in the court. There is something known as the Constitution, there is something known as Constitutional philosophy. We will not entertain a petition which will take us 100 years back."

2. Any Resolution Passed To Deny Legal Representation To Person Arrested Over 'Free Kashmir' Poster? Karnataka HC Asks Mysore Bar Association

A division bench of Chief Justice Abhay Oka and Justice S Vishwajith Shetty issued directions to the Mysore District Bar Association to produce the resolution, if any, passed by it along with its statement of objections precluding all its members from representing Nalini Balakumar, the student who was indicted on the charges of Sedition for holding a 'Free Kashmir' placard during the anti-CAA protests at the Mysore University campus on January 8.

As per the plea, the Executive Committee of the Mysore District Bar Association on January 16, passed a resolution to not to file vakalath and appear on behalf Nalini, stating that she is accused as 'Anti-National'. The petitioner argued that the Right to Practice is a Fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. Hence, the decision of the Mysore District Bar Association or anyone for that matter, to restrict any of its Advocate members not to file vakalath on behalf of any accused person without sufficient cause, offends Article 19(1)(g) of the Constitution of India.

3. Excluding Married Daughter From Seeking Benefit Of Compassionate Appointment Is Unconstitutional: Karnataka High Court (Bhuvaneshwari V. Puranik v. State Of Karnataka)

A single bench of Justice M. Nagaprasanna held that excluding a married daughter from consideration for appointment on compassionate ground is unconstitutional. While granting relief to the petitioner who had approached the Court against denial of consideration for appointment on compassionate ground on the death of her father on the score that she is "a married daughter", the Court held that exclusion of married daughters from the ambit of expression 'family' is illegal and unconstitutional being violative of Articles 14 and 15 of the Constitution and therefore struck down the word "unmarried".

"Marriage does not determine the continuance of the relationship of a child with the parent, whether son or a daughter. Son continues to be a son both before and after marriage and a daughter also should continue to be a daughter both before and after marriage. This relationship does not get effaced by the fact of marriage, as marriage does not severe the relationship of the daughter with the parent. These relationships are neither governed nor defined by marital status. This notion on which the Rule is framed cannot answer the tests of Articles 14 and 15 of the Constitution of India."

4. Karnataka High Court Allows Amnesty International To Withdraw Rs 60 Lakhs From Bank Accounts Rejecting ED's Objection

A bench of Justice P S Dinesh Kumar partly allowed the petition filed by Amnesty International's India Office, which challenged the communication issued by the Enforcement Directorate (ED) to banks directing them to freeze the accounts held by trust. The Court allowed the petitioner to withdraw an amount of Rs. 60 Lakhs from the bank accounts.

Prior to this, the Court had made multiple suggestions to the ED about whether it is willing to allow the petitioner to make statutory dues like salaries, tax payments, etc to the tune of Rs 40 lakh per month, from the five bank accounts which were mentioned in ED's communication to banks. But, the ED had rejected these suggestions. Following the seizure of its banks, the Amnesty International had announced in September that it would be stopping its India operations.

5. Aarogya Setu : Karnataka High Court Reserves Order On Plea To Restrain Authorities From Denying Services For Not Installing App

A division bench of Chief Justice Abhay Oka and Justice S Vishwajith Shetty reserved its order in the petition filed by Anivar Aravind who has sought directions to the authorities not to deny any service to citizens for not installing the 'Aarogya Setu' application.

The petitioner has argued that the application is not backed by law. He argued that as per judgment in the case of KS Puttaswamy v. Union of India, any privacy infringement (Aarogya Setu App) requires a legislation and mere executive orders (such as those issued for the App under Disaster Management Act) are not sufficient. Advocate Gonsalves, who appeared for the petitioner, further added, "This is a surveillance app and the state is operating as super policemen. This is an app for repression of the public. Without a law this cannot be done. Their justification is superficial and no study is carried out." On the other hand, Additional Solicitor General appearing for the Central government said the implementation of Aarogya Setu application is supported by law and it is one of the measures adopted for containing Covid-19 in the country, which does not violate the privacy of any individuals.

6. Karnataka High Court Issues Notice On PIL Challenging Amendment To BDA Act To Regularize Illegal Constructions

A division bench of Chief Justice Abhay Oka and Justice S. Vishwajith Shetty issued notice to the State Government in a petition challenging the amendment to the Bangalore Development Authority (Amendment) Act and Karnataka Town and Country Planning (Fourth Amendment) Act (KTCP Amendment Act). The BDA Amendment Act seeks to legalize the illegal occupation and construction on lands owned by the Bengaluru Development Authority.

The petitioner, Vijay Menon contended that both the amendments are violative of Articles 14, 21 and 243-ZE of the Constitution of India and is also contrary to the existing provisions of the Bengaluru Development Authority Act, 1976. The plea states, "The BDA Amendment Act detrimentally affects the residents of Bengaluru as the said Amendment Act incentivises land grabbers to illegally occupy government lands as the said illegal occupation would later on be legalized and regularized as a result of the said Amendment Act. The KTCP Amendment Act seeks to allow an increase in the floor area ratio for buildings by mere payment of premium charges to the Government." The petitioner has asked the Court to issue directions which would prohibit the Respondents and their officials from entertaining any applications for allotment under the BDA Amendment Act or from entertaining any applications for the grant of permission for utilization of premium floor area ratio during the pendency of this writ petition.

Other Developments:

• Karnataka High Court Initiates Suo-motu Petition To Ensure Elections Are Held To Municipal Bodies
• OCI Cardholders To Be Treated As Indian Citizens For Admission To Professional Courses: Karnataka High Court
• Karnataka High Court Asks BBMP and BDA To List Steps Which Will Be Taken For Proper Maintenance Of Parks/Gardens In Bengaluru
• Karnataka High Court Directs Paralegal Volunteers To Verify Condition Of Bengaluru Roads
• Insult To 'Hindutva' Not Religious Insult To Attract Section 295A IPC : Abhinav Chandrachud Argues In Karnataka HC Seeking Quashing Of FIR

Kerala High Court

1. Withholding Of Title Deeds Towards Security By PSU Bank Doesn't Involve Any Element Of Public Duty: Kerala High Court (Unimoni Financial Services Ltd v. IDBI Bank Limited & Another)

A bench of Justice P V Asha held, "Providing of credit facility or providing of loan on the strength of title deeds given in security cannot be said to be done in discharge of any public function, even in a case where it is made by a Public Sector undertaking/Bank." The Court further observed that demand for processing fee or withholding of title deeds towards security cannot be said to be one involving any element of public duty.

In this case, the petitioner had challenged a demand made by IDBI bank towards processing fee of an alleged credit facility and also relating to withholding of the title deeds of the properties which were mortgaged/given in security. This demand asked the petitioner for payment of an amount of Rs.11,00,000/- towards the alleged processing fee for the return of original property documents that belonged to the petitioner. The petitioner then, filed a writ petition in the High Court seeking a declaration to rule IDBI Bank's demand as arbitrary and illegal. It was prayed that IDBI Bank be directed to return the Petitioner, the original documents in respect of the petitioner's land without insisting on the payment of Rs.11, 00,000. Here, the Court dismissed the Writ petition.

2. Gold Smuggling Case-Kerala High Court Dismisses CM Raveendran's Plea Challenging Summons By Enforcement Directorate (CM Raveendran v. Union of India)

A single bench of Justice VG Arun dismissed the writ petition filed by CM Raveendran, Additional Private Secretary to the Chief Minister of Kerala, challenging the summons issued by the Enforcement Directorate. "Having commenced an investigation or proceeding, ED cannot be expected to wait indefinitely to suit the petitioner's convenience. It is not for this Court to monitor the investigation and to decide the venue, the timings, the questions and the manner of questioning", the Court observed.

The petitioner had approached the Court and had challenged the summons issued by the ED. He stated that on his appearance in response to the summons, he will be restrained for long hours and coerced into giving statements against his will. He also sought a direction to ED to refrain from detaining the petitioner beyond reasonable time and to permit the presence of a legal practitioner during questioning. Additional Solicitor General SV Raju submitted that the writ petition had been filed prematurely and is liable to be dismissed since, mere issuance of summons under Section 50 of the Act does not give rise to any cause of action. The Court agreed with the respondent and noted that no cause of action arises merely for reason of a person being called upon to state the truth or to make statements and produce documents.

3. Donation From Guruvayoor Devaswom Funds To Chief Minister's Distress Relief Fund Illegal, Holds Kerala High Court (Bijesh Kumar M. v. State of Kerala & Ors.)

A division bench of Justice Shaji P. Chaly and Justice MR Anitha had referred PILs filed by Hindu devotees against the donation of an amount of Rs. 5 crores made by the Committee of the Guruvayoor Devaswom to the Chief Minister's Distress Relief Fund, on May 5, 2020, in view of the COVID-19 situation. The Bench held that the Committee does not have the authorization to make such payments.

The Court further stated that all the properties, including movable and immovable properties and money, dedicated to or endowed in the name of Lord Guruvayurappan or any property acquired in any manner by Guruvayur Devaswom shall vest in the idol of Lord Guruvayurappan, consecrated in Sree Krishna Temple, Guruvayur.

Other Developments:

• Money Trail In Gold Smuggling Case: Kerala HC Reserves Order On Maintainability Of Plea Filed By CM's PS CM Raveendran Against ED Summons
• Kerala High Court Denies Bail To Former PWD Minister VK Ebrahim Kunju In Palarivattom Flyover Scam
• Kerala High Court Raises Permissible Number Of Daily Pilgrims At Sabarimala Temple As 5000
• Kerala High Court Dismisses Couple's Plea To Abort 35 Weeks Pregnancy Due To Serious Abnormalities In Foetus

Madras High Court

1. Delay In Constituting NCLAT Chennai May Amount To Contempt Of Supreme Court's Direction: Madras High Court

A Division bench comprising of Justice M. Sathyanarayanan and Justice P. Rajamanickam observed that a delay in establishing a Bench of NCLAT in Chennai may amount to contempt of the Supreme Court's direction. This direction had been given in the Swiss Ribbons Pvt. Ltd & Anr. v. Union of India & Ors., where the Attorney General had assured the Supreme Court that Circuit Benches of NCLAT will be established. The Supreme Court had recorded this submission with a direction to comply within six months. The Court directed the Additional Solicitor General of India to seek instructions in the matter and file a counter affidavit.

The Court was hearing a writ petition filed by Advocate GV Mohan Kumar which stated that a delay in establishing the Bench was creating serious difficulties in access to justice for the Litigants and Lawyers. The petitioner further stated that the NCLAT branch only exists in New Delhi. So, litigants and lawyers from many different parts of the country, especially the South, have to travel back and forth for each hearing. This becomes incredibly time and money consuming. So, it was a necessity to have a regional branch of NCLAT in the South.

2. Why Not Invoke Goonda Act Against Food Adulterers?: Madras High Court Orders Interim Ban On Sale Of Edible Oil As Loose Oil [S. Arunnithy v. The CEO, FSSAI & Ors.]

While observing that the edible oils (sold in loose packets) are mostly adulterated and that it would have "serious consequences on the health of the consumers", a Bench of Justice N. Kirubakaran and Justice B. Pugalendhi passed an interim order banning the sale of edible oil as loose oil. The Court observed,

"It is the duty of the Government to ensure that the people are getting healthy food without any adulteration. The very object behind the enactment of Prevention of Food Adulteration Act, 1954, now amended as Food Safety and Standards Act, 2006, is to enhance the quality standard and to ensure the availability of quality food for all citizens." It added, "This Court is of the opinion that those who are involved in adulteration, ie., the adulterators, be it the Manufactures / Distributors / Sellers, should be termed as 'Goonda' as per the definition in Section 2 of the Tamil Nadu Act 14 of 1982, by amending the provisions to include them and should be detained under the Act 14 of 1982."

Other Developments:

• Shares Transferred By Redington India To Its Step Down Subsidiary Not Eligible For Tax Exemption: Madras High Court
• "How Many Times Indian Rupee Was Devalued Since 1947?": Madras High Court Asks Central Govt.

Orissa High Court

1. 'Administrative Side Taking Necessary Steps': Orissa High Court Disposes Of PIL For Use Of A4 Sheets In Courts

A bench of Chief Justice Mohammad Rafiq and Justice Dr. BR Sarangi, while hearing a PIL seeking permission for use of A4 sheets in the High Court and all other judicial forums in Orissa, observed that the administrative side of the Court is "taking necessary steps" on the issue pertaining use of A4 sheets for filings before judicial forums in the state. The Court disposed of the PIL by using this observation as grounds.

The Petitioner had sought necessary amendments to Rule 4(i) under Chapter-VI of Part-II of the Rules of the High Court of Orissa, 1948 so as to give effect to directions for the use of A4 size paper in the Orissa High Court; and also in all other courts, tribunals and other judicial and quasi-judicial forums, sub-ordinate to it in the State of Odisha. The Petitioner asserted that the move will not only protect the environment by minimizing the wastage of papers but will also bring uniformity in all Courts.

2. Right To Progeny And Termination Thereof Is A Fundamental Right Under Article 21: Orissa High Court

While permitting a rape victim to terminate her pregnancy after 20 weeks of gestation, a Division Bench of Justices SK Mishra and Savitri Ratho held that right to progeny and termination thereof is a fundamental right enshrined under Article 21 of the Constitution of India. Reliance was placed on Meera Santosh Pal v. Union of India, (2017) 3 SCC 462, where the Supreme Court held that women's right to make reproductive choice is also a dimension of personal liberty as understood under Article-21 of the Constitution.

The victim in this case was 21 weeks pregnant and as per the existing Medical Termination of Pregnancy Act (MTP Act), medical termination of pregnancy more than 20 weeks old is not permitted. The Court however referred to the Medical Termination of Pregnancy (Amendment) Bill, 2020, pending consideration before the Rajya Sabha, which allows for termination of pregnancies up to 24 weeks.

Patna High Court

1. Enable Transgender Community To Apply For The Post Of Constable: Patna High Court Asks State To Adopt A Sensitive Approach (Veera Yadav v. Government of Bihar & Ors)

A bench of Chief Justice Sanjay Karol and Justice S. Kumar have the state of Bihar to adopt a sensitive approach and asked the state to enable the transgender community to apply for the post of Constable. The Court directed the State to take remedial measures and the last date to invite applications, for the members of the Transgender Community, was directed to be extended for such time and period, as the State determines it to be feasible and appropriate.

The order was passed by the Bench when it was brought to their notice that the advertisement issued by the Central Selection Board of Constable in Bihar only allowed applications from the male and female genders. Importantly, the Court remarked, "Prima facie what we find is that the persons belonging to the Transgender Community are totally precluded from the process of applying for a post of a constable, much less, agitate their right of reservation."

2. Alleged Assault On Judicial Officer: Patna High Court Take Suo Moto Cogniznace, Directs DGP To Submit Action Taken Report [Suo Motu on the basis of news Published in the news paper report dated 18.12.2020 v. State of Bihar & Ors.]

A Division Bench of Chief Justice Sanjay Karol and Justice S. Kumar took suo moto cognizance on the basis of news published in the newspaper report related to the alleged assault on a Judicial Officer—ADJ, Hilsa (Nalanda) Jay Kishor Dubey who was travelling in his official car at Hilsa, District-Nalanda (Bihar).

The Court directed that complete action taken report on the affidavit of the Director General of Police, Government of Bihar, Patna be filed before the next date, i.e. 23rd December, 2020.

Punjab and Haryana High Court

1. Book Investigating Officers Who Fail To Secure CCTV Footage In Criminal Cases: Punjab and Haryana High Court Directs Haryana DGP (Rahul v. State of Haryana)

A single bench of Justice Arun Kumar Tyagi directed the DGP of the state of Haryana to ensure that in every case where any CCTV footage is claimed to be available, copies of the same are obtained from the source along with requisite certificate under Section 65B of the Indian Evidence Act, 1872. The DGP was asked to issue appropriate instructions to Commissioners and Superintendents of Police in order to exercise effective supervision over the officials posted in their respective districts.

This direction was issued when a bail applicant, Rahul, had been accused of stabbing a man with a sharp knife and causing grievous injury. The Court in this case observed that the Investigating Officer failed to obtain the copy of the CCTV footage and present it before the Court with a requisite certificate, under Section 65B of the Evidence Act, 1872. Even though departmental action has been taken against the Investigating Officer, the Court said that taking of departmental action in one or more of such cases does not remedy the damage caused to the cause of justice and that steps are required to be taken to ensure that such lapses do not occur again.

Also Read: First Wife Not Consenting To Husband's Second Marriage Not A Relevant Factor In Protection Plea Of Muslim Couple: P&H High Court

Rajasthan High Court

1. School Fees During COVID: CBSE & State Board Schools Entitled To Collect 70 & 60 Pct Tuition Fee Respectively: Rajasthan High Court (Sunil Samdaria v. State of Rajasthan & Ors.)

A Bench of Chief Justice Indrajit Mahanty and Justice Satish Kumar Sharma ordered the schools to take their fees as per the recommendations of the Government made on October 28, 2020. The Rajasthan govt. had, by the order of 9^th April, 2020, deferred the collection of school fees by private schools for three months. Subsequently, via the order of 7^th July 2020, the above deferment of collection of fees was extended till the opening of the schools with the stipulation that the name of any student shall not be struck off for non-payment of school fees.

The order of 7^th July stated that 70% of the school fees had to be paid to the school in three instalments. If there are cases of non-payment of the said fees, the students won't be expelled from school, but they may not be permitted to sit in the online classes. Many petitions were filed against this order and the Court said that the schools must comply with the directions issued in the order released on October 28, 2020.

2. Prisoners Forced To Do Jobs Like Cleaning Toilets Etc. Based On Caste: Rajasthan High Court Calls For Overhauling Of Prison Manual (Manoj Yadav v. State)

A bench of Justice Devendra Kachhawaha and Justice Sandeep Mehta directed the State government of Rajasthan to ensure that the prisoners are not discriminated against and forced to do menial jobs such as cleaning toilets, etc. on the basis of their caste. The Court further directed that no under trial prisoner is coerced to perform such tasks in the prison.

The Court further stated, "Considering the progressive democratic set up of our country and in order to ensure maintenance of proper hygiene in the prisons, it would be expedient in the interest of justice that the State Government considers installation of mechanized/automated cleaning facilities in all the prisons in the State of Rajasthan."

Telangana High Court

1. "State Seeking Aadhaar Details 'A Clever Ploy'": Telangana High Court Orders Deletion Of Aadhaar, Caste Details Clause From Properties Registration (Saaketh Kasibhatla, v. State of Telangana)

A division bench of Chief Justice Raghavendra Singh Chauhan and Justice B. Vijaysen Reddy rebuked the Telangana State Government for violating its undertaking that submitted in the Court which stated that it wouldn't insist on Aadhaar and Caste Declaration for non-agricultural property registration process. The Telangana High Court on Wednesday (16^th December) directed the state government to delete Aadhaar, caste and other relevant references from its software that is meant for the registration of properties.

The Court stated, "The State is seeking information through a clever subterfuge in the garb of slot booking, and in the garb of applying for PTIN. Such a clever ploy is clearly in violation of the undertaking given by the State before this Court."

Uttarakhand High Court

1. "Harmful To Environment": Uttarakhand High Court Urges Lawyers To Avoid Enclosing Documents Otherwise Available Electronically

"The practice of enclosing the copies of Act, Rules, notifications, Government Gazettes and Judgments with the petitions, which are otherwise available electronically, are prevailing in the Court which not only imposes financial burden upon the litigants but also causes great loss to environment," observed a Single Bench of Justice Lok Pal Singh while noting that the counsel for the petitioner in this case had unnecessarily enclosed the xerox copies of the judgments with the petition.

While deprecating such a practice, the Judge clarified that according to Sections 37 and 38 of the Indian Evidence Act, 1872, these Acts, Regulations, notifications, Government Gazettes and Judgements are admissible as evidence even if their photocopies are not submitted to the Court.