SCC Issue dated January 7, 2021 (Vol. 1 Part 1)
Read the Hate Speech Judgment expertly analysed by our Editors in over 27 short notes. Whether the speech is merely a controversial one or is hate speech. In what circumstances can State action restrict it. (Amish Devgan v. Union of India, (2021) 1 SCC 1)
Number of Short Notes: 29
Counsels who appeared in the matter:
Petitioner’s Advocate: Vivek Jain
Respondent’s Advocate: Jaikriti S. Jadeja
Read the following analytical articles:
- Applicability of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985:(2021) 1 SCC J-1
- Truth Behind Truth Machines: A Psycho-Legal Enigma:(2021) 1 SCC J-14
- Rationalising “Complete Justice” Under Article 142:(2021) 1 SCC J-30
- Seat in Indian Arbitration Law – Conundrum, Concomitants and Significance:(2021) 1 SCC J-51
Applicability of S. 50 of NDPS Act: One of the most important provisions under the NDPS Act is the statutory right granted to a person suspected of possessing any narcotic drug or psychotropic substance to be searched before a Gazetted Officer or Magistrate under S. 50 of the Act. In a stringent statute, it is a vital protection to an accused. Despite a plethora of judgments, there is still lack of clarity on the scope and applicability of this section in cases of “composite search”, i.e. when along with the bag/vehicle/receptacle of the accused, his body is also searched. While some judgments hold that S. 50 would apply only to searches where recovery is made from the body of the accused (and not when recovery is made from the bag/vehicle/receptacle belonging to the accused), others1 have held that even if the recovery is made from the bag/vehicle/receptacle of the accused, if his body is searched, S. 50 will apply. This article examines and analyses this conflict of views. Applicability of Section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 by Sidharth Luthra and Kunal Mimani, (2021) 1 SCC (J-1)]
Constitution of India — Preamble: Hate speech or controversial speech: Fraternity, diversity and pluralism assuring dignity of the individual have fundamental relationship with unity and integrity of the Nation. Speech or expression causing or likely to cause disturbance of or threats to public order, or, divisiveness and alienation amongst different groups of people, or, demeaning dignity of targeted groups, held, is against Preambular precepts, and violates dignity, liberty and freedom of others, particularly of the targeted groups, and poses threat to fraternity, and unity and integrity of the Nation, and must be dealt with as per law. [Amish Devgan v. Union of India, (2021) 1 SCC 1]
Disaster Management Act, 2005 — Ss. 10(2) and 36: In this case, there was spraying of all kinds of disinfectants on human beings, without approval of relevant Ministry, being done supposedly for protecting human beings from COVID-19, not recommended by respondent State. However, no step was taken by respondent State either to prevent or regulate spraying of disinfectant on human body. Obligations of State to ensure preservation of right to life and health in wake of COVID-19 Pandemic in view of the 2005 Act, explained and necessary directions issued. [Gurusimran Singh Narula v. Union of India, (2021) 1 SCC 152]
Legality and reliability of deception detection techniques (DDTs): Revealing the truth behind commission of a crime is an onerous task during investigation proceedings. In various incidents of crime especially in old cases, identifying a criminal and proving guilt beyond reasonable doubt is the greatest challenge. During twentieth century, Polygraph, Narco-analysis and other technologies have emerged as the “Truth machines” to help an investigator to “extract” reality from the subject, especially when conventional methods of investigation and other forensic inputs are rendered ineffective. Deception detectors squarely entail surveillance of psycho-physiological response of the brain while retorting to a query or in a simulated situation. However, these deception detection techniques (DDTs) have globally faced substantial criticism during legal scrutiny across jurisdictions. The Narco-test, being bodily intrusive in nature, has been abandoned in advanced countries. This article delves upon various critical aspects concerning legality and reliability of DDTs in global legal landscape. Truth Behind Truth Machines: A Psycho-Legal Enigma by Dr G.K. Goswami and Siddhartha Goswami, (2021) 1 SCC (J-14)]
Mines and Minerals (Development and Regulation) Act, 1957 — Ss. 4 to 8-A and S. 15 — Fresh grant or extension of mining lease — Manner in which permissible: Statutory provision of R. 68 of the U.P. Minor Minerals (Concession) Rules, 1963 is in the nature of a relaxation rule in special cases and has to be read with the Rules which provide the manner in which the exploitation of minerals should take place. Thus, if a fresh grant or extension of a mining lease has to be made under the Mining Rules, it must be in accordance with Ch. II, and the provision for auction of leases in Ch. IV of the 1963 Mining Rules is in furtherance of a transparent procedure. Extension of mining lease cannot be granted by exercise of power under R. 68 of the 1963 Mining Rules. [Dharmendra Kumar Singh v. State of U.P., (2021) 1 SCC 93]
Origin, nature and scope of Article 142 of the Constitution: This article traces the origins of Article 142 of the Constitution of India, the etymology of the phrase “complete justice” and the underlying inspiration it draws from a concept of British Indian vintage-justice, equity and good conscience. Article 142 has been employed by the Supreme Court in myriad situations. The Court has deliberately left its contours undefined, so as to allow for flexibility to deal with future exigencies. This article argues that though the power should indeed remain undefined, when invoked in derogation of statutory provisions or dehors the statutory regime governing a situation, it must necessarily be accompanied by the formulation of a principle or spelling out of a rational justification, which will operate as a precedent. This alone will lead to rationalising its use and negate the uncertainty associated with its exercise in this manner. Rationalising “Complete Justice” Under Article 142 by Ninad Laud,(2021) 1 SCC (J-30)]
Penal Code, 1860 — Ss. 302 and 34 — Related eyewitnesses — Presence on the spot: Same, held, not believable, when the claim of the witnesses regarding taking the deceased to the hospital from the spot, not supported by the FIR, which was lodged by one of the said witnesses and indicated removal of deceased to the hospital by two other persons. [Rajesh v. State of Haryana, (2021) 1 SCC 118]
Seat of arbitration in Indian Arbitration Law: For India, adoption of “seat” theory has to be read in the light of the Indian Arbitration Act, 1996 which under its Part I subsumes both law governing the arbitration agreement and law governing the arbitration proceedings and also stipulates that Part I shall apply if the “place” of arbitration is in India. Issues have also arisen from the obiter dicta in BALCO v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552. The judicial issues now stem from those observations and the application of “seat” to foreign and domestic seated arbitrations. In this Article, the author has discussed the relevance of “seat” and the factors that help in the determination of a “seat”. While doing so, this article has also also discussed the determining position of law on this issue covered by the Supreme Court decisions. Seat in Indian Arbitration Law – Conundrum, Concomitants and Significance by Akaant Kumar Mittal, (2021) 1 SCC (J-51)]
U.P. Minor Minerals (Concession) Rules, 1963 — R. 68 — Relaxation of Rules in extension of period of mining lease by exercise of power under R. 68 — Permissibility: In this case, State Government extended time for utilising idle period in respect of other plot where lessee was mining. High Court set aside order extending time for mining passed in favour of appellant relying on Cl. 11 of agreement according to which no extension could be granted if during period of lease mining work had been suspended due to rains, flood or any other reason. However, there was no reference to R. 68 in order passed by High Court. Order of High Court was set aside. State Government directed to give effect to its order granting extension of period of lease. [J.P. Yadav v. Kanhaiya Singh, (2021) 1 SCC 116]
