Weekly Round-Up of Major Decisions of the Courts in India as also Legal Policy Developments

Notice issued on plea seeking establishment of Human Rights Courts in every district – The Supreme Court has issued notice on the petition seeking the establishment of Human Rights Courts in every district in accordance with the provisions of the Protection of Human Rights Act. The Act also requires appointment of Special Public Prosecutors. The petition, apart from this, asks for a cap of 3 months on hearing. Presently, each district court designates a particular Sessions Court as a designated court to listen to complaints under the Act rather than having a separate Court to deal with these cases, even though the Act was passed in 1993. The petition highlights the steep criticism India has received from the international community because of the deplorable condition of Human Rights enforcement. [Bhavika v Union of India, Writ Petition (Civil) No. 819 of 2019, date of order: 08.07.2019]

Maratha quota cannot be given retrospective application – The Supreme Court has held that the quota created by the Maharashtra SEBC Act, though passed in 2014, cannot be given retrospective effect from that year and struck down the recent government order. The order would have affected more than 70,000 vacancies since 2014. The Court had upheld the reservation of 16% seats for the Marathas in a recent order, even though the total reservation in the State now has exceeded more than 50%. Special Leave Petition have been filed against the previous order and the Court noted that the implementation of the Court’s earlier order was subject to the outcome of the SLPs.[Jhansirao Patil v Chief Minister, Special Leave to Appeal (Civil) No.15737 of 2019, date of order: 12.07.2019]

Right to education includes right to safe transport – In the light of recent news reports about sexual harassment of minor students, a petition has been filed in the Madras High Court seeking a writ of mandamus ordering installations of CCTV cameras and GPS systems in school buses, which can be monitored by parents through a website. In an interim order in the matter, the High Court has impleaded the Education Secretary of Tamil Nadu as a proper party in the case. While passing this order, the Court also elaborated on the meaning of right of education to include right to health & hygiene, drinking water, fire safety, building safety and transport precautions in the school, as well. [ Gopi Kishan v Director, Writ Petition No. 14287 of 2019, date of order: 11.07.2019]

CBI raids home and offices of Indira Jaising and Anand Grover – Senior advocates, Indira Jaising and Anand Grover’s home and offices were raided by the CBI in connection with the criminal case files against their NGO, Lawyers Collective for violation of the Foreign Contributions Registration Act. The allegations against the organisation include diversion of funds for purposes not mentioned in the objects of the association and/or for personal expenses. The NGO strongly defended its cause pointing out that its licence under the FCRA had been cancelled in 2016 itself on arbitrary grounds and the challenge against the same was pending in the Bombay High Court.

Mall owners prohibited from charging parking fee – The Gujarat High Court has ordered mall and multiplex owners to desist from charging parking fes from the patrons observing that the Gujarat Comprehensive General Development Regulations, 2017(GCDR) did not allow for the same. The judgment points out that though out the Regulations, the word ‘provide’ is used which in its natural sense would mean being provided for use and does not entail the charging of a fee for the use. The writ petition had been filed by mall owners against the order of the traffic police which had also declared that the GCDR did not allow for the charging of a fee. The single bench of the High Court had come to the conclusion that the Regulations did not prohibit the charging of fee but the fee charged should not be exorbitant and so the court passed an order directing the government to frame a policy regulating the charges. The division bench on the other hand noted that when malls are constructed, the parking space is not included in the cost for the land and the owners undertake to provide parking space to the visitors and hence they could not charge a fee. Maintenance charges for the space should be borne by the owner and the shop owners. [Ruchi Malls v State of Gujarat, Letters Patent Appeal No. 1412 of 2018, date of order: 10.07.2019]

Right to terminate pregnancy cannot be taken away – The Delhi High Court has held that the right to terminate pregnancy cannot be taken away simply because the gestation period has gone beyond 20 weeks. The Court undertook a harmonious reading of the entire Act. The Act allows for termination of pregnancy if the child would be born with serious abnormalities and would have a short span of life, but such an action is restricted to 20 weeks, but after 20 weeks, the Act permits adjournment, if it is necessary to save the life of the mother. Thus, on looking at the provisions together, it came to conclusion that the condition of the foetus is such that it is incapable of life, termination should be allowed. [Priyanka Shukla v Union of India, Writ Petition (Civil) No. 7080 of 2019, date of order: 10.07.2019]

If amount is written in different inks on a negotiable instrument, it is void – The Madras High Court has held that if the amount on a negotiable instrument is written in two different inks, then the instrument would become void. The instrument in question had 3 in one ink, while the following 5000 (making the amount ₹35000) had been written in a different ink. According to Section 85 of the Negotiable instruments Act, any material alteration of a negotiable instrument renders it void unless the alteration has been consented to. The fact that the 3 was in a different ink made the instrument suspicious. [ Mallika v Kasi Pillai, Second Appeal No. 740 of 2015, date of order: 21.06.2019]

Banks challenge the levy of service tax for provision of banking facilities – Thirteen banks (Punjab National Bank, State Bank of India, HDFC, HSBC, Kotak Mahindra Bank, ICICI, Deutsche Bank, Yes Bank, Citi Bank, Standard Chartered Bank, Axis Bank) have joined together to challenge the levy of service tax on provision of banking services in the Delhi High Court. The petition has come because of the introduction of Section 66E(e) into the Finance Act which allows taxing on ‘an obligation to do an act’, treating it as a service. The constitutionality is challenged on the basis that the section is overbroad. Further the service is provided free and according to the Central Board of Indirect Taxes, free services cannot be taxed. The underlying basis of the section seems to be the understanding that maintenance of minimum balance is to be treated as consideration. Meanwhile a demand of ₹38,000 crore has been raised from the banks as service tax. Notice has been issued in the matter and the parties will file responses to the show cause notices issued to them without prejudice to their rights. [Punjab National Bank v Union of India, Writ Petition (Civil) No. 7177 of 2019]

Kiran Bedi asked to appeal to division bench of the Madras High Court against single bench order – The Supreme Court has asked Puducherry LG Kiran Bedi and the Union of India to appeal to a division bench of the Madras High Court against the single judge order of 30 April holding that she could not interfere with day to day administration of the State. The Supreme Court earlier, when a similar situation arose in the Delhi government, had sided with the LG. The Madras High Court on the other hand had held that the LG is bound by the advice of the Council of Ministers and she could not interfere in day to day matters. [Union of India v K. Lakshminarayanan, Special Leave to Appeal (C) No(s).12072/2019, date of order: 12.07.2019]

(IPA Service)

Prepared by Amritananda Chakravorty (amritananda.c@gmail.com) and Mihir Samson (mihirsamson@gmail.com), Delhi based practicing Advocates.