Legislation UpdatesNotifications

On September 15, 2021, the Central Government notified September 24, 2021 as the date on which the provisions of the  Medical Termination of Pregnancy (Amendment) Act, 2021(8 of 2021) will come into force.

Legislation UpdatesRules & Regulations

The Central Government, after consultation with the Governments of the State concerned,  notifies All India Services (Conduct) Amendment, Rules, 2021  to amend the All India Services (Conduct) Rules,1968, namely:-

Key Amendments:

  • In the All India Service (Conduct) Rules, 1968, in rule 11, after sub-rule (3), the following sub-rule shall be inserted, namely:-

“(4) Notwithstanding anything contained in sub-rules (1), (2) and (3), a member of the Service, being a member of the Indian delegation or otherwise, may receive and retain gifts from foreign dignitaries in accordance with the provisions of the Foreign Contribution (Acceptance or Retention of Gifts or Presentations) Rules, 2012, as amended from time to time”.

Legislation UpdatesRules & Regulations

The Central Government makes National Commission for Protection of Child Rights (Amendment) Rules, 2021 to amend the National Commission for Protection of Child Rights Rules, 2006. They shall come into force on the date of their publication in the Official Gazette.

The Amendment inserts a proviso in Rule 6(3) of National Commission for Protection of Child Rights Rules, 2006:

 

“Provided that a person who has held office for two terms as Member or two terms as Chairperson, shall not be eligible for re-nomination as a Member or Chairperson, as the case may be:

Provided further that a person who has held office-
(i) for two terms as Member; or
(ii) one term as a Member and one term as Chairperson, shall be eligible for one more term as Chairperson”

Case BriefsHigh Courts

Madras High Court: The Division Bench of N. Kirubakaran and M. Duraiswamy, JJ., while addressing the matter with the concern of printing images of Great leaders on currency notes, expressed that,

If every claim is started to be entertained, there will not be any end.

What is the use of printing images of Great Leaders, who fought for our Independence without following their principles, in currency notes?; merely because the portrait of Mahatma Gandhi is appearing in the currency, does it mean that the currency is used only for legal purposes. Whether the currency should have the portrait of a particular leader or otherwise is the policy of the Government.

 In the instant matter, petitioner appeared before the Court challenging the respondent’s order by which the petitioner’s claim for printing the image of Nethaji Subhash Chandra Bose in the currency notes was rejected.

Petitioner stated that if the image of Netaji Subash Chandra Bose will be printed in the currency note it will be a tribute paid to the great leader.

Analysis, Law and Decision

High Court stated that it was evident from the impugned order that, on the evidence of the Government of India, a Committee was constituted by the Reserve Bank of India in October, 2010 for designing the future currency notes and the Committee deliberated on the issue o changing the existing image of Mahatama Gandhi and inclusion of certain other personalities in the new design Bank notes. However, the Committee decided that no other personality could better represent the ethos of India than Mahatma Gandhi and therefore, no other personality image was decided to be included in the currency note.

The above decision of the Committee was accepted by the Ministry of Finance.

Bench added that it is not underestimating the fight and sacrifice made by Netaji Subash Chandra Bose and great leaders for freedom moment of this Country.

There are many known heroes and unsung heroes. If everybody starts making such a claim there will not be an end.

Court emphasized that, Central Government as well as Reserve Bank of India have already constituted a Committee and took a decision that it is only the father of the Nation Mahatma Gandhi could represent the ethos of India and therefore, it was decided to retain the Mahatma Gandhi’s image in the currency notes and no other personality image is decided to be included.

Hence, Bench lastly held that only the government can take a decision and this Court cannot substitute the views of the Committee report which had been accepted by the Government.

In view of the above, petition was dismissed. [K.K. Ramesh v. Union of India, 2021 SCC OnLine Mad 5022, decided on 10-08-2021]


Advocates before the Court:

For Petitioner: Mr K.K. Ramesh (Party-in-Person)

For Respondents: Mrs L. Victoriya Gowri, Assistant Solicitor General of India

Legislation UpdatesStatutes/Bills/Ordinances

Constitution (One Hundred and Fifth Amendment) Act, 2021 receives President’s assent on August 20, 2021. It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

Key Highlights:

  • Inserts a proviso in Article 338B of the Constitution:

“Provided that nothing in this clause shall apply for the purposes of clause (3) of article 342A.”.

  • In article 342A of the Constitution,—

(a) in clause (1), for the words “the socially and educationally backward classes which shall for the purposes of this Constitution”, the words “the socially and educationally backward classes in the Central List which shall for the purposes of the Central Government” shall be substituted;

  • Inserted the following Explanation and proviso in Article 342A

‘Explanation.— For the purposes of clauses (1) and (2), the expression “Central List” means the list of socially and educationally backward classes prepared and maintained by and for the Central Government.

(3) Notwithstanding anything contained in clauses (1) and (2), every State or Union territory may, by law, prepare and maintain, for its own purposes, a list of socially and educationally backward classes, entries in which may be different from the Central List.’.

Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of S. Manikumar, CJ., and Shaji P. Chaly, J., asked the Union government if petrol and diesel should fall under GST regime, the Bench granted six weeks time to the Centre to decide the same.

The petitioner-Kerala Pradesh Gandhi Darshanvedi had filed the instant PIL the following reliefs:

  1. To issue a writ of mandamus or any other writ or order directing the Centre and Ministry of Petroleum and Natural Gas to include petrol and diesel under the GST regime.
  2. To issue a writ of mandamus or any other writ or order directing the GST Council to recommend the inclusion of petrol and diesel under the GST regime so as to achieve a harmonized national market as contemplated under Article 279 A (6) of the Constitution of India.
  3. To declare that the non-inclusion of petrol and diesel under the GST regime was violative of Article 14 and 21 of the Constitution of India.

The petitioner had also submitted a representation to the Government of Kerala to request the GST Council to include the petrol and diesel in the GST regime and had also proposed that till a decision is taken by the GST Council, the Government of Kerala may refrain from levying the state tax on petrol and diesel.

However, the stand taken by the Centre government and the Ministry of Petroleum and Natural Gas was that inclusion or deletion of GST is a policy decision. Adopting the same line of argument, and placing reliance on the decision in Union of India v. Shiyaad, W.A.No.2061 of 2017, the GST Council submitted that a no mandamus can be issued to the GST Council to take any decision and that the Union government is the competent authority to take a decision on the above said issue.

In the light of the above, the Bench directed the GST Council to forward the representation made by the petitioner to the Centre government. Similarly, the Centre government was asked to take an appropriate decision within a period of six weeks.[Kerala Pradesh Gandhi Darshanvedhi v. Union of India, 2021 SCC OnLine Ker 2778, decided on 21-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Arun B. Varghese and Adv. Aiswarya V.S.

For the Respondents: ASG P.Vijaykumar, Sr. Counsel P.R.Sreejith, SPL GP Gopikrishnan Nambiar

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench of Sunil B. Shukre & Avinash G. Gharote, JJ. addressed various Mucormycosis related issues prevalent in Maharashtra.  The Bench warned,

“This is a sort of war like situation for Maharashtra and in particular city of Nagpur, which calls for rapid response and mighty one. We hope that these entreaties would be positively answered by the Central Government and if not, further loss of lives of a few more patients, unfortunate as it may be, may be a fait accompli.”

The Indian Medical Association (IMA) had submitted a report before the Court pertaining to prevalence and spread of fungal infections. It not only highlighted types of fungal infections but also the causes, symptoms, precautions, which the Bench opined that if considered seriously and implemented by all the hospitals presently treating the Covid patients and also patients with fungal infections, there will be a considerable reduction in prevalence and spread of the fungal infections.

Shortage of Drugs

Noticing that raw materials used for manufacturing drugs to cure Mucormycosis which are Amphotericin B (Lipid Complex) and Amphotericin (Liposomal) are imported for their bigger part, the Bench stated that the State Government, as well as the Central Government, need to take the issue of shortage of drugs available for treating the fungal infections seriously. The Bench reminded the governments,

“After all, such invaders; fungii are the invaders; require speedy action and they do not wait for anybody to respond to them. It’s not the case that once they raid a house i.e. body of the patient, they would lie dormant and wait for the house owner to make his preparations and then have a word or duel of resistance with them. The response to be given in such situations is akin to a response given in a war like situation.”

Believing that unless quick action is taken, destruction is inevitable, the Bench directed the Central and the State Government to take immediate steps for increasing the production capacity of Indian manufacturers involved in producing these drugs and if needed, press the entire State machinery into service for increasing of the production capacity.

Reportedly, number of patients suffering from Mucormycosis in Nagpur alone was 1584 on 29-05-2021 and out of these patients 830 patients had been operated on.  The data further showed that out of 1584 patients, eye exenteration had taken place in 74 cases and so far 69 patients had succumbed to Mucormycosis. The Bench expressed alarm over the situation and remarked that in Nagpur city the situation is no longer a rare fungal infection, that it has already assumed a form of an epidemic. Therefore, the Bench reiterated that the Central Government and State Government, and additionally, Indian Society in general need start taking effective measures for restricting the spread of fungal infections. These measures would be of maintaining of individual cleanliness and hygiene through improvement of immunity levels by remaining on good diet and also keeping contributing ailments like Hyperglycemia, diabetes and the like under control to making available in sufficient quantities drugs required for treating these infections.

Deficit Allocation of Drugs to Maharashtra

Raising concerns on inefficient method of drug allocations, the Bench expressed concerns that the State of Maharashtra and in particular city of Nagpur having very high prevalence of Mucormycosis infection remain in crying state for Amphotericin B and the patients were not getting enough number of vials per day for the treatment because of deficit allocation and short supply to State of Maharashtra; due to which many patients had lost organs of their body while others had even lost their eyes and a sizable number of patients were dead. Hence, the Bench reiterated that the situation could be improved by sensible allocation of Amphotericin B to the State of Maharashtra.

“But, the steps that it (Central Government) had to take or it must take, considering the fundamental duty of the State and also the concept of welfare State in the Directive Principles of State Policy, its response appears to be not on the expected lines.”

Import of Raw Material

Some public spirited importers from Nagpur who had forward to extend their helping hands had highlighted their problem in importing of the raw-material required for manufacturing of the required drugs. Noticing that major hurdles that these interested importers were facing were in respect of the delay occurring at the level of Drugs Controller General of India (DCGI) in granting registration to the private players, the Bench directed the Central government to actively consider the suggestion of interested importers that procedure for obtaining registration of DCGI for making import of the drugs or raw material should be done away with atleast during the pandemic and the Authority to grant permission for import of the drugs and/or raw material for drugs be delegated to the Food and Drugs Administration of individual States.

In the backdrop of above, the Bench directed the Divisional Commissioner, Collector and Commission of Nagpur to extend all the help to make available the requisite man power and paraphernalia for increasing the check-ups and survey of all the hospitals in Nagpur city in order to find out any deficiency, lacunae, and other incidental factors which contribute to spread of fungal infections. The State government was also directed to invoke relevant provisions of Section 136, Companies Act, 2013 for dealing with erring companies which are unwilling, defaulting and non-responsive regarding their CSR and are reluctant to make contributions at this hour of need.[Court on its own motion v. Union of India, 2021 SCC OnLine Bom 790, order dated 02-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Amicus Curiae: S.P.Bhandarkar

For Union of India: ASGI U.M.Aurangabadkar with Adv.Santok Singh Sokhi and Adv. Deshmukh
For Respondents: GP. Ketki Joshi Addl. GP D.P. Thakare and AGP N.S. Rao

For Respondent 4 and 10: Adv. S.M.Puranik and Adv. B.G.Kulkarni, respectively

For MADC:  Adv. C.S.Samundra

Case BriefsSupreme Court

Supreme Court: Taking note of the depleting strength of the members of the NCLT and NCLAT, the 3-judge bench of L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ has issued certain directions and has asked the Government to complete the reappointment process “at the earliest and not later than two months”.

The direction came in the petition filed by the National Company Law Tribunal and Appellate Tribunal Bar Association seeking direction to the Central Government

  • to fill up the vacancies of Chairman, NCLAT and President of NCLT without any further delay.
  • to issue letters of appointment to the candidates pursuant to the Selection procedure initiated in 2019 and to fill up the remaining vacancies of Members of NCLT and NCLAT.
  • to extend the term of six Members of the NCLT and NCLAT for a further period of five years as they are completing the tenure by June, 2021.

The Additional Solicitor General Balbir Singh had told the Court that the process for appointment of candidates who have been selected pursuant to the procedure which was initiated in 2019 shall be expedited and orders of appointment shall be issued soon. In respect of the process to be initiated for filling up the existing vacancies, a search cum Selection Committee has to be constituted. The Court, hence, directed that the Selection Process shall be initiated at the earliest.

On the issue of extension of the term of the Members of the NCLT and NCLAT who are completing their tenure in June, 2021 is concerned, Attorney General KK Venugopal submitted that the government has initiated the process for reappointment by requesting the Chief Justice of India to constitute a committee for the purposes of the reappointment of members to the NCLT and NCLAT.

As per Section 413 of the Company’s Act 2013, the President or other members of the Tribunal shall hold office for a period of 5 years and shall be entitled for reappointment for another term of 5 years.

The petitioner, however, requested that the members who are completing their tenure should be permitted to continue till the process of reappointment is completed.

“… there are 39 members at present for a sanctioned strength of 63 and the depletion of the strength of the members will adversely affect the smooth functioning of the Tribunals.”

The Court, hence, directed the Government to complete the process within two months and said,

“As the Government has already initiated the process of reappointment by writing to the Hon’ble Chief Justice, we trust and hope that the reappointment process should be completed expeditiously, as there is no necessity of issuance of any advertisement for participation of other eligible candidates. Reappointment of members can be considered separately without waiting for the process of fresh appointments to commence.”

[National Company Law Tribunal and Appellate Tribunal Bar Association v. Ministry of Corporate Affairs, 2021 SCC OnLine SC 406, order dated 31.05.2021]


For Petitioner(s) Mr. A.S. Chandhiok, Sr. Adv. Mr. Virender Ganda, Sr. Adv. Mr. Ajay Kumar Jain, Adv Mr. Rakesh Kumar, Adv Mr. Vipul Ganda, Adv Mr. Vishal Ganda, Adv Mr. Satyajit A. Desai, Adv. Mrs. Anagha S Desai, AOR Ms. Aastha Trivedi, Adv Ms. Guresha Bhamra, Adv Mr. Tejasvi Chaudhry, Adv Mr. Satya Kam Sharma, Adv.

For Respondent(s) Mr. KK Venugopal, Ld. AG Mr. Balbir Singh, Ld. ASG Mr. R. Balasubramanium, Sr. Adv. Mr. Zoheb Hossain, Adv Ms. Shradha Deshmukh, Adv. Ms. Chinmayee Chandra, Adv. Mr. Shyam Gopal, Adv. Mr. Ankur Talwar, Adv. Ms. Suhasini Sen, Adv. Mr. Gurmeet Singh Makker, AOR

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench comprising of Ravindra V. Ghughe and B. U. Debadwar, addressed the issue relating to supply of dysfunctional ventilators through PM Cares Fund. The Bench slammed the Center for contending that the ventilators were in working condition and the deficiencies were with the hospital staffs, the Bench remarked,

We would have appreciated had the affiant avoided entering into a blame game and instead shown sensitivity towards the patients, it being the paramount object of the welfare State to take care of the health of its citizens.

Whether the Ventilators Supplied through PM Cares Fund dysfunctional?

Regarding the use of the 113 ventilators supplied through PM Cares Fund a report was prepared by the Committee of eight doctors of the GMCH who deal with ICU and the utilization of ventilators. The said report indicated that the ventilators developed errors from day one. About 25 ventilators were installed in the Medicine Department and 25 ventilators were distributed to the District and private hospitals. All such 25 ventilators were returned by the ICU departments of the concerned hospitals, as they were not functioning properly and patients had started complaining about breathlessness and associated symptoms within hours of the ventilators having been switched on. The report suggested that Private hospitals also returned the ventilators stating that they were not working properly. Although, a Team of three technicians of the Manufacturer visited the GMCH, and a Company Service Engineer joined the Team and calibrated `in-put oxygen’ regulators of two ventilators, they worked well overnight and next day by afternoon patients complained about poor oxygen and showed signs of restlessness.

The Committee noted that even after major repairs, the results indicate the failure of the ventilators. In the final conclusion, the Committee opined that these machines are unsafe for patients use and it was decided not to test any of these machines on patients, henceforth.

Stand Taken by the Central Government  

The ASGI contended that the alleged 150 ventilators were never supplied through the P.M. Cares Funds thereby, completely denying that these ventilators were funded through the P.M. Cares Funds, as was earlier announced. However, to defend the same, ASGI submitted that the ventilators manufactured by M/s Jyoti CNC Automation Limited, were modern ventilators, which were highly complex and sophisticated medical equipments. Shifting the blame on the Hospitals the ASGI contended that Doctors and paramedics were not properly trained to operate such ventilators at Aurangabad. It was also submitted that after the Dean of the Government Medical College submitted a report, the MoHFW sought an explanation from the Manufacturer and as per the said explanation there was no material before the MoHFW to conclude that the ventilators were not working satisfactorily.

Explanation Given by the Manufacturer

On the other hand, the Manufacturer alleged that the Government Medical College, Aurangabad was non-cooperative right from the acceptance of the delivery and the local District Collector had to direct the GMCH for unloading and accepting the ventilators. It was submitted that there was nothing on record to demonstrate that the ventilators were malfunctioning. Applying the same scheme as that of Central government, the Manufacturers contended that the user manual and training videos were not followed by the operators and that the infrastructure available at the GMCH is inadequate hence, the ventilators were not being used properly. Lastly, it was argued that 300 ventilators were performing satisfactorily in other States of India and other regions of Maharashtra and Aurangabad, therefore, there was no fault on the part of the manufacturer and it could not be held responsible for inadequacies on the part of the GMCH.

Observations and Findings of the Court

The Amicus curiae highlighted before the Court that not a single hospital/institution which was delivered with such ventilators had submitted that even one ventilator was operating satisfactorily. Noticing that the subject “Public Health and Hospitals” is at entry-6 in the State list and the legislative powers as well as executive and administrative powers of the State Government pertaining to the said subject are covered by Article 162, the Bench opined that it is the State Government which would be answerable on this subject. Hence, before accepting or acquiring such medical equipments/instruments by any medical facility/hospital, the State Government should make it mandatory for the Manufacturer to undertake fullest cooperation and assistance in the event of the equipment becoming dysfunctional. The Bench slammed the Center Government stating that,

We are unable to appreciate the contention of the ASGI that the ventilators are in perfect operating conditions and it is the hospitals who do not have trained personnel to operate the said ventilators properly. We find that such statements demonstrate insensitivity on the part of Ministry of Health and Family Welfare (MoHFW).

The Bench opined that instead of expressing whole hearted support to ensure that such costly instruments are put to optimum utilization in the interest of the lives of the patients, the affiant found it advantageous to contend that there was no merit in the report of the Dean of the Government Medical College. Hence, the tenor of the Center government was that the ventilators were in working condition and the deficiencies were with the hospitals and the doctors/paramedics/technicians. On such submissions made by ASGI, the Bench expressed,

We find that he (ASGI) is questioning the report of the Dean, and does not even remotely refer to the six reasons as regards the malfunctioning of the ventilators cited by the GMCH. The ASGI has addressed us as if he is holding the brief for the Manufacturer.

In the backdrop of the above, the Bench directed the MoHFW to take all remedial steps and ensure that the ventilators would operate normally and all defects, if any, would be removed. The Bench warned the MoHFW to refrain from questioning the reports of the Medical Experts and respect the same in the larger interest of the society and concentrate on rectifying the ventilators.

Overcharging by Ambulance Operators

On the issue of ambulance operators openly demanding multi-fold times of the approved rates of Ambulances as disclosed by an sting operation carried out by a local reporter, the Bench held that since the District Collector of every district is the authority under the Disaster Management Act, all aggrieved patients/relatives of patients would be at liberty to complain to the District Collector, if they had suffered such overcharging of Ambulance fare and the District Collector would deal with such complaints in accordance with the procedure as is laid down.[Registrar (Judicial) v. Union of India, 2021 SCC OnLine Bom 761, Order dated 28-05-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Amicus Curiae: Satyajit S. Bora
For State of Maharashtra: Chief PP D. R. Kale
For Union of India: ASGI Ajay G. Talhar
For the respondent 8: Adv. S. G. Chapalgaonkar
For the respondent 22: Adv. K. N. Lokhande
For the respondent 25: Adv. R. K. Ingole

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal, Mumbai (SAT): The Coram of Justice Tarun Agarwala (Presiding Officer) and Justice M.T. Joshi (Judicial Member) held that Bench constituting the Presiding Officer and Judicial member can proceed to hear and decide the appeals, etc. which are filed before the SAT and non-availability of Technical member is not defective.

In the present matter, a piquant situation arose due to the vacancy of a Technical member in the Securities Appellate Tribunal.

SEBI’s Position

SEBI raised the question of the composition of the Bench of Tribunal hearing the appeals, etc. filed before the tribunal.

SEBI stated that in terms of Section 15L(2)(b) of the Securities and Exchange Board of India Act, 1992, the Bench constituted should include at least one Technical Member and without the said member the appeal should not be heard.

Controversy

SAT was functioning with a Presiding Officer, a Judicial Member and Technical Member. But since 31st March, 2021, the tribunal was working with Presiding Member and Judicial Member as the Technical Member had demitted the office.

Originally the Tribunal was a one Member Bench as per Section 15L of the SEBI Act, but the same was amended in the year 2002 to form a 3-Member Bench.

“15L. Composition of Securities Appellate Tribunal.

A Securities Appellate Tribunal shall consist of a Presiding Officer and two other members, to be appointed, by notification, by the Central Government: 

Provided that the Securities Appellate Tribunal, consisting of one person only, established before the commencement of the Securities and Exchange Board of India (Amendment) Act, 2002, shall continue to exercise the jurisdiction, powers and authority conferred on it by or under this Act or any other law for the time being in force till two other Members are appointed under this section.”

 Question to be answered

Whether the vacancy in the office of the Technical Members is fatal to the constitution of the Tribunal?

In Tribunal’s opinion, legislature’s intention has never been to stall or render the Tribunal non-functional in the absence of a Technical Member and therefore, a harmonious construction had to be given.

Tribunal—Headless?

Coram opined that Tribunal would continue to function even if there was a vacancy in the office of the Presiding Officer. Tribunal will not become non-functional or headless. Hence, if a vacancy of a member occurs whether it is Judicial Member or Technical member and if there is a coram inspite of a vacancy, the Tribunal can proceed and hear the matters.

Rule 5 also provides that in the absence of a Presiding Officer the Government can appoint one of the members to preside over the sitting of the Tribunal, meaning thereby, that even in the event of a vacancy the Tribunal will not become non functional and will continue to discharge its functions from the remaining members.

Can Tribunal’s proceedings be questioned on the basis of any defect in SAT’s constitution?

Section 15R provides that any proceedings taken before the Tribunal cannot be questioned in any manner on the ground of any defect in the constitution of SAT. This provision protects the legality and validity of the orders passed by the Tribunal even if it is found that there was a defect in the constitution of the Tribunal. This provision clearly indicates that Section 15L(2)(b) and its proviso are the only directory in nature and cannot be mandatory.

Harmonius Construction

Upon a harmonious construction of the provisions of Section 15L read with Section 15P, Section 15-PA and Section 15R it would be clear that the Tribunal does not come to a grinding halt whenever there is an absence or vacancy of a Member. When there is no Technical Member, a Bench would have to be constituted by the Presiding Officer from amongst the Members who have been appointed.

Coram expressed that where the Presiding Officer is functional he alongwith the other Member/Members shall conduct the proceedings and where a vacancy occurs in the office of the Presiding Officer, then the senior most Judicial Member shall act as a Presiding Officer till the date on which a new Presiding Officer is appointed.

Recently, in the International Association for Protection of Intellectual Property (India Group) v. Union of India, 2021 SCC OnLine SC 89, decided on 12th February, 2021 Supreme Court held that in the absence of Technical Member the Chairperson can discharge the functions of a Judicial Member or Technical Member of the Bench to which he is appointed and can discharge the functions of a Judicial Member, or as the case may be, of a Technical Member, of any other Bench. The Supreme Court held that in the absence of a Member, the Chairperson may, if the occasion so arises, act as a Technical Member or a Judicial Member.

Tribunal performs judicial functions.

 It was elaborated that it is an essential requirement under the SEBI Act that the Presiding Officer is a Judicial Member. A Presiding Officer can never be appointed from a Technical Member. The Technical Member cannot replace a Judicial Member. 

Further, the Coram in view of the question of the presence of a technical member stated that a Technical member is an aid to assist the Bench requiring technical expertise on an issue and, thus, it cannot be said that if a Technical Member is not available the Bench comprising of two Judicial Members cannot function.

In view of the Supreme Court decision in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 and upon harmonious construction of the SEBI Act, Tribunal opined that the functioning of the Tribunal presently comprising of a Presiding Officer and a Judicial Member is not defective on account of non-availability of Technical member.

Hence SEBI’s objection in view of the above was rejected.

Tribunal’s Parting words

Can this Tribunal face such crisis of non-functioning due to non-filling up of the vacancies by the Central Government?

Tribunal stated that Central Government should expedite and fill up the vacancy.

A fourth post of Technical Member was created vide notification dated 16th May 2019. No steps have been taken by the Central Government to fill up this vacancy, even though two years have elapsed. Further, the government knew that the only Technical Member was going to retire on 31st March, 2021. Till date, no steps have been taken to fill up the post whereas such steps should have been taken at least a couple of months before the retirement of the Technical Member.

Coram requests the Central Government to fill the vacancies at the earliest along with necessary amendment to solve the discrepancy in the charging section to the proviso under Section 15L(2)(b).

Direction

Registrar of this Tribunal is directed to send a certified copy of this order to the Secretary, Ministry of Finance, Department of Economic Affairs, with a request to fill up the vacancies at the earliest and consider making appropriate amendments.

Registrar is also directed to send a certified copy of this order to the Secretary General of the Supreme Court of India with a request to place our order before the Chief Justice of India and, if desired, to treat this order as a PIL and resolve the issue on the judicial side so that the matter is resolved once and for all from the highest Court in India. [Axis Bank Ltd. v. NSE, 2021 SCC OnLine SAT 135, decided on 17-05-2021]


Advocates before the Tribunal:

Mr. Gaurav Joshi, Senior Advocate with Mr. Neville Lashkari, Mr. Chaitanya D. Mehta, Ms. Sonali Aggarwal and Ms. Drishti Gudhaka, Advocates i/b. M/s. Dhruve Liladhar & Co.

Mr. Rafique Dada, Senior Advocate with Mr. Anubhav Ghosh and Mr. Ravishekhar Pandey, Advocates i/b. The Law Point and Mr. Fredun De Vitre, Senior Advocate with Mr. P.N. Modi, Senior Advocate, Mr. Somasekhar Sundaresan and Mr. Suraj Chaudhary, Advocates.

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rekha Palli, JJ., slammed center government for its reckless attitude towards upsurging issue of non-availability of medical oxygen. The Bench came down heavily on center government and warned,

“The allocation to Delhi, which was earlier of 480 MT (since 20-04-2021), and now is of 490 MT has not been fulfilled even for a single day. In case, this order is not implemented…we make it clear that we may even consider initiating Contempt Proceedings in case of non-compliance.”

During the hearing, Dr. S. Bankata, Executive Director from Batra Hospital informed the Court that there was a delay in supply of Oxygen due to which Oxygen supply was interrupted for about an hour and a half, which had led to loss of 8 lives, including a doctor of the said hospital.

Similarly, counsel for NCT Delhi, Sr. Adv. Rahul Mehra had informed the Court that on the day of hearing itself, at 03:05 P.M. he had received an SOS message from Mr. Bidhuri, who is the officer tasked with the job of ensuring supply to hospitals in Delhi, that the reserves of the GNCTD were exhausted, and there was no supply/ minimal supply from the plants of Linde and Air Liquide. The senior counsel had expressed serious concerns over how the Capital would tide over the shortage for the day as a lot of hospitals and nursing homes had either run out of medical Oxygen, or would do so in the coming few hours.

Assessing the gravity of the matter, the Bench directed Central Government to ensure that NCT of Delhi receives its allocated supply of 490 MT positively today, by whatever means. The Bench added, considering the fact that Delhi is not an industrial State, and does not have availability of cryogenic tankers of its own which could be requisitioned under the Disaster Management Act, it falls upon the Central Government to arrange the tankers as well, so that the allocation made to Delhi could be fulfilled. The Bench ordered,

“The Central Government shall ensure availability of cryogenic tankers as well for the said supply.”

The Bench further observed that the allocation to Delhi, which was earlier of 480 MT (since 20-04-2021), and now is of 490 MT has not been fulfilled even for a single day. Hence, it warned the center government to face legal actions if the order is not implemented. Considering the harum-carum attitude of center towards Covid crises in the country the Bench made it mandatory for the concerned officers of the Central Government viz. Mr. Piyush Goyal and Ms. Sunita Dawra during the hearing on 03-05-2021. The Bench further made it clear that if the government does not wake up and comply with the directions of the Court it may even consider initiating Contempt Proceedings against it. Lastly, CGSC Mr. Amit Mahajan was directed to  ensure communication of the Order to the concerned officers.

[Rakesh Malhotra v. NCT of Delhi, 2021 SCC OnLine Del 1867, order dated 01-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioners: Sr. Adv. Sacchin Puri, with Adv. Praveen K. Sharma and
Adv. Dhananjay Grover

For the Union of India: SGI Tushar Mehta, ASG Chetan Sharma, CGSC Monika Arora, CGSC  Amit Mahajan, CGSC Anil Soni, CGSC Anurag
Ahluwalia, Adv. Shriram Tiwary, Adv. Amit Gupta, Adv. Akshay
Gadeock, Adv. Sahaj Garg and Adv. Vinay Yadav

For NCT of Delhi: Sr. Adv. Rahul Mehra, ASC Satyakam, Sr. Adv. Santosh
Tripathi, ASC Gautam Narayan, ASC Anuj Aggarwal, ASC Anupam Srivastava, Adv. Aditya P. Khanna, Adv. Dacchita Sahni, Adv. Ritika Vohra and Adv. Chaitanya Gosain

Case BriefsCOVID 19High Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rekha Palli, JJ., expressed that

It serves no purpose for anyone to cause any obstruction in the smooth flow of much needed Medical Oxygen. Stoppage of tankers by one State would have snow balling effect, and would eventually adversely impact the concerned State as well.

RTPCR Testing

Bench stated that with respect to the stated head, Court had already directed the Centre to take steps in order to prioritize the clearance of imported equipment and all that was required to be able to set up and operate the RT-PCR testing centres.

Chetan Sharma, ASG brought to Court’s notice the directions issued by Centre to all customs offices with regard to the above stated and Solicitor General stated that Centre would call for a report.

To the above, Bench stated that the report be called for as to how many such imports were pending and how many have been cleared along with this, the duration for which the imports are held up at the ports along with the reasoning.

Court called for the above report within 3 days and in a sealed cover.

Medical Oxygen

Solicitor General read out certain orders and communications that had been issued from time to time so as to augment the production, distribution and supply of medical oxygen throughout the country, as also in respect of NCT of Delhi. Mr Tusha Mehta, SGI submitted that GNCTD has called for supply of Oxygen from the JSW Group. With regard to the distribution of medical oxygen, the same was being undertaken by the Central Government and the States/Union Territories should not be asking for the same directly from any producer.

JSW Group’s production and distribution of oxygen is also being monitored by the Centre.

Bench permitted the GNCTD to procure the cryogenic tankers from JSW Steel and Centre shall intervene in case of any obstruction from any quarter in the procurement of the cryogenic tankers by the GNCTD. Adding to this Court stated that However, so far as the allocation of oxygen produced by the JSW Steel Plants is concerned, the same shall be undertaken on the instructions of the Central Government.

Alok Aggrawal, Maharaja Agrasen Hospital had made efforts to contact officers of the GNCTD to offer one cryogenic tanker but n response came in, for such offers, Court directed Mr Aggrawal or his client to interact with Chief Secretary, Delhi, Mr Vijay Kumar Dev who offered to look into any such offer that may be made, so that tankers may be procured for the purpose of securing supplies of Medical Oxygen to Delhi.

INOX has been supplying medical oxygen produced by itself as per the allocation made by the Central Government as well as it is lifting the allocation made to another producer from its production plants.

INOX started moving their four cryogenic tankers from Rajasthan to service the transportation arrangement from the plants of Air Liquide. However, their said tankers have been detained by the State of Rajasthan. Mr Mehta submitted that strict action will be taken and it shall be ensured that tankers are freed so that they can proceed to their destination for the purpose of filling and supplying liquid medical oxygen.

Bench remarked that it expects and hope that the State of Rajasthan shall honor the orders passed by the Central Government as well as the Orders of this Court.

Any intervention by anyone in the plan put in place by the Central Government for the supply of medical oxygen in the country, at this stage, would tantamount to endangering hundreds of human life, if not more.

Medical Oxygen | Set Mechanism

High Court elaborating more on the aspect of obstruction of medical oxygen stated that,

since the Central Government is mindful of the needs of all the States and Union Territories, and the distribution plan has been worked out by taking into account the needs of all the States and Union Territories, if any concerns arise before any State, they should be addressed to the Central Government, for which the Central Government has already created a Virtual Central Control Room – on which the Nodal Officers of all the States are represented.

Mr Siddharth Jain, Director, M/S INOX placed the difficulty that the oxygen suppliers have been facing which is in respect to a lot of paperwork to be done on their part as required by the GNCTD. He further added that employees serving in the oxygen production and supply industry have been affected with COVID and an increase in paperwork would impede the efficiency of the suppliers. His suggestion was that a meeting be held between all the suppliers, GNCTD Officers, hospital representatives, nursing homes in Delhi and the refilling units so that modalities could be worked out for a smooth supply of oxygen.

For the above issue, Chief Secretary, GNCTD agreed to the meeting.

Non-Availability and Consequent Black Marketing of Oxygen Cylinders

 The stated issue has been taking place rampantly in the NCT of Delhi. Bench directed the refillers to be present before the Court and provide requisite information to the GNCTD, further the Bench directed the refillers to ensure that the refilled cylinders are supplied in terms of the directions of the GNCTD and all such supplies are accounted for, failing which, Court shall be compelled to take strict action against them.

Lastly, the Court concluded the order saying that,

We are hopeful that with the infrastructure for transportation of liquid Oxygen been augmented, the supplies to Delhi would considerably improve in the coming days.[Rakesh Malhotra v. GNCTD,  2021 SCC OnLine Del 1828, decided on 26-04-2021]

Case BriefsCOVID 19High Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rekha Palli, JJ.,  asked Central Government to ensure supplies from all oxygen-producing plants to Delhi as per the allocation order.

When the matter was taken up on 21-04-2020, Court noted that about 200-250 MT of Medical Oxygen had been received during the day and till the time the order was passed.

It appeared that 140 MT of Medical Oxygen had been allocated to be supplied from the plant Air Liquide, Panipat was being obstructed by the local authorities.

NCT of Delhi’s position has turned precarious with several hospitals reporting either complete exhaustion of Oxygen, or depletion to the level that it may not last even for the next few hours.

Senior Advocate, Tushar Rao pointed out that Mrs Poonam Kalra who was in a serious condition had been asked by the U.K. Nursing Home to go to some other hospital, since the hospital was running out of oxygen. Similar position was noted in Aakash Hospital, Dwarka.

Court was informed that Panipat authorities were obstructing the lifting and transportation of oxygen from Air Liquide, Panipat.

Additional Secretary, Ministry of Home Affairs, Piyush Goel stated that the officials in the State of Haryana were persuaded to abide by the Allocation Order and the Order passed by Disaster Management Act on 22-04-2021. Yet, the position is unsatisfactory and obstructions appear to continue.

In view of the above, High Court directed the Central Government to peremptorily ensure strict compliance of the Allocation Order dated 21-04-2021, its own order passed on 22-04-2021 under the Disaster Management Act and Court’s order dated 21-04-2021.

Authorities concerned have also been directed to ensure strict compliance with the above-stated Orders. And in case the Orders will not be complied strictly, the same would be taken very seriously since the result of non-compliance would be grave loss of life.

Non-Compliance will also invite action for contempt of Court and criminal and penal action under the Disaster Management Act and under the Penal Code, 1860.

Centre shall also ensure the supplies from all the oxygen-producing plants, as per the allocation order, is made and transportation takes place without any hindrance.

Adequate security to be provided to the lorries transporting oxygen by the Central Government and for the said purpose a special corridor to be created for the immediate transportation of the oxygen. [Rakesh Malhotra v. GNCTD, 2021 SCC OnLine Del 1822, decided on 22-04-2021]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rekha Palli, JJ., directed the Delhi Govt. to work out the logistics of procuring the remaining quantity of oxygen which was claimed not to have been supplied out of the allocated 480 MT.

Additional Secretary, DPIIT, Ministry of Commerce and Industry, Sumita Dawra is the in-charge of allocation of medical oxygen to various States in the country in wake of ranging Pandemic.

She gave Bench the history of how industrial Oxygen got diverted from medical use since April, 2020. She also informed the Court about the decision taken on 20-04-2021to increase in allocation for use of medical Oxygen in the NCT of Delhi from 378 MT to 480 MT.

Senior Advocate for GNCTD, Mr Rahul Mehra stated that the NCT of Delhi received somewhere between 200-250 MT of Oxygen today, adding to this he submitted that there were obstructions in the receipt of said Oxygen and the same was delayed for that reason.

Mr Tushar Mehta, Solicitor General requested that the matter be adjourned and at the same time he assured the Court that Centre shall facilitate the supply of 480 MT of Medical Oxygen to Delhi and further assured that Central Government shall also ensure unobstructed and safe passage of the Medical Oxygen tankers to Delhi of the allocated Oxygen.

Bench taking the above statement of Mr Tushar Mehta on record hoped that emergent needs of various hospitals in Delhi including those run by petitioner would be met and no casualties are suffered on account of the discontinuing supply of Oxygen to seriously ill COVID patients, and other serious patients who require Oxygen for support till the matter is take up again.

Hence, Court directed GNCTD to immediately work out the logistics of procuring the remaining quantity which was claimed not to have been supplied out of the allocated 480 MT and the suppliers are directed to comply with allocation order issued by Centre and make supplies on an emergent basis.

During this late-night hearing of the Court, it was informed to the Bench that Oxygen supplies were received by Max Hospital, Patparganj, and Max Hospital, Shalimar Bagh.

Matter to be listed today. [Balaji Medical Research Centre v. Union of India, 2021 SCC OnLine Del 1827, decided on 21-04-2021]


Advocates before the Court:

For the Petitioner: Mr Sandeep Sethi Sr, Adv, Mr Mahesh Agarwal, Adv, Mr Rishi Agrawala, Adv, Mr Karan Luthra, Adv, Mr Ankit Banati, Advs

For the Respondents: Mr. Tushar Mehta, SGI, Mr. Chetan Sharma, ASG, Ms. Monika Arora, CGSC, Mr Anil Soni, CGSC

Mr Rahul Mehra, Sr. Advocate with Mr Satyakam, ASC, GNCTD

Mr Rajiv Nayar, Sr. Advocate with Mr Ajay Bhargav, Mr Aseem Chaturvedi, Mr Saurab Seth Advocates with Mr Siddharth Jain, Whole Time Director for M/s. INOX

Case BriefsCOVID 19High Courts

9-key points from the observations by Delhi High Court decision on essential drugs, dearth of oxygen and vaccine:

  • Centre to review the allocation of oxygen on a dynamic basis.
  • Hospital that are running out of their supplies of oxygen, Centre to make the availability.
  • Notice of contempt to M/s INOX for non-compliance with this Court’s Order.
  • Medical Machines/Equipment’s, medicines, etc. that are imported should be handled and cleared at top priority.
  • Centre and the ICMR, to review the form in which the information is required to be uploaded by the testing agencies, to reduce their burden and wastage of time, as this appears to be acting as a bottleneck in the matter of preparation of reports.
  • Central Government & its agencies to issue necessary directions to all the licensee and Government should undertake to check on a regular basis to unearth all such cases of hoarding which are leading to scarcity of drugs for needy patients | Strict Penal Action.
  • Centre to review the distribution of Remedesivir Drug daily.
  • Manufacturers to be encouraged so as to ramp up their production on a war footing of all essential medications for COVID treatment.
  • Criminal Waste: If even a single dose of vaccine is wasted, it would amount to criminal waste. | Government to devise ways for registering volunteers below the age of 45 and above the age of 18 to take residual doses of vaccine.

[Rakesh Malhotra v. GNCTD, 2021 SCC OnLine Del 1811, decided on 20-04-2021]


Delhi HC on status of availability of COVID Beds, supply of ventilators, need of medical oxygen and essential medications || “Wastage of a single dose of vaccine is a criminal waste”

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman, BR Gavai* and Hrishikesh Roy, JJ has held that any creditor including the Central Government, State Government or any local authority is bound by the Resolution Plan once it is approved by an adjudicating authority under sub­-section (1) of Section 31 of the Insolvency and Bankruptcy Code, 2016.

Resolution Plan – When becomes binding?

After taking note of Section 31 of IBC, the Court observed that once the resolution plan is approved by the Adjudicating Authority, after it is satisfied, that the resolution plan as approved by CoC meets the requirements as referred to in sub-section (2) of Section 30, it shall be binding on the Corporate Debtor and its employees, members, creditors, guarantors and other stakeholders.

“Such a provision is necessitated since one of the dominant purposes of the I&B Code is, revival of the Corporate Debtor and to make it a running concern.”

The Court explained one of the principal objects of IBC is, providing for revival of the Corporate Debtor and to make it a going concern. Here’s the scheme of the Code:

  • Upon admission of petition under Section 7, there are various important duties and functions entrusted to RP and CoC. RP is required to issue a publication inviting claims from all the stakeholders. He is required to collate the said information and submit necessary details in the information memorandum.
  • The resolution applicants submit their plans on the basis of the details provided in the information memorandum.
  • The resolution plans undergo deep scrutiny by RP as well as CoC. In the negotiations that may be held between CoC and the resolution applicant, various modifications may be made so as to ensure, that while paying part of the dues of financial creditors as well as operational creditors and other stakeholders, the Corporate Debtor is revived and is made an on-going concern.
  • After CoC approves the plan, the Adjudicating Authority is required to arrive at a subjective satisfaction, that the plan conforms to the requirements as are provided in sub-section (2) of Section 30 of the IBC. Only thereafter, the Adjudicating Authority can grant its approval to the plan.
  • It is at this stage, that the plan becomes binding on Corporate Debtor, its employees, members, creditors, guarantors and other stakeholders involved in the resolution Plan.

“The legislative intent behind this is, to freeze all the claims so that the resolution applicant starts on a clean slate and is not flung with any surprise claims. If that is permitted, the very calculations on the basis of which the resolution applicant submits its plans, would go haywire and the plan would be unworkable.”

2019 Amendment – Nature and effect of  

After the 2019 amendment, any debt in respect of the payment of dues arising under any law for the time being in force including the ones owed to the Central Government, any State Government or any local authority, which does not form a part of the approved resolution plan, shall stand extinguished.

The mischief, which was noticed prior to amendment of Section 31 of IBC was, that though the legislative intent was to extinguish all such debts owed to the Central Government, any State Government or any local authority, including the tax authorities once an approval was granted to the resolution plan by NCLT; on account of there being some ambiguity the State/Central Government authorities continued with the proceedings in respect of the debts owed to them.

In order to remedy the said mischief, the legislature thought it appropriate to clarify the position, that once such a resolution plan was approved by the Adjudicating Authority, all such claims/dues owed to the State/Central Government or any local authority including tax authorities, which were not part of the resolution plan shall stand extinguished.

Further, the word “other stakeholders” would squarely cover the Central Government, any State Government or any local authorities. The legislature, noticing that on account of obvious omission, certain tax authorities were not abiding by the mandate of IBC and continuing with the proceedings, has brought out the 2019 amendment so as to cure the said mischief.

Therefore, the 2019 amendment is declaratory and clarificatory in nature and   therefore retrospective in operation.

“Creditor” and “Other Stakeholders” – If includes Central Government, State Governments or local authorities

“Creditor” – If covers Government

“Creditor” has been defined to mean ‘any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree-holder’.

“Operational creditor” has been defined to mean a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred.

“Operational debt” has been defined to mean a claim in respect of the provision of goods or   services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority

Harmonious construction of subsection (10) of Section 3 of the IBC read with subsections (20) and (21) of Section 5 thereof would reveal, that even a claim in respect of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority would come within the ambit of ‘operational debt’.

The Central Government, any State Government or any local authority to whom an operational debt is owed would come within the ambit of ‘operational creditor’ as defined under sub¬section (20) of Section 5 of the IBC.  Consequently, a person to whom a debt is owed would be covered by the definition of ‘creditor’ as defined under sub-section (10) of Section 3 of the IBC.

“As such, even without the 2019 amendment, the Central Government, any State Government or any local authority to whom a debt is owed, including the statutory dues, would be covered by the term ‘creditor’ and in any case, by the term ‘other stakeholders’ as provided in subsection (1) of Section 31 of the IBC.”

Key findings

(i) Once a resolution plan is duly approved by the Adjudicating Authority under subsection (1) of   Section 31 of Insolvency and Bankruptcy Code, 2016, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders.

Further, on the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan;

(ii) 2019 amendment to Section 31 of the IBC is clarificatory and declaratory in nature and therefore will be effective from the date on which IBC has come into effect;

(iii) Consequently all the dues including the statutory dues owed to the Central Government, any State Government or any local authority, if not part of the resolution plan, shall stand extinguished and no proceedings in respect of such dues for the period prior to the date on which the Adjudicating Authority grants its approval under Section 31 could be continued.

[Ghanshyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Limited, 2021 SCC OnLine SC 313, decided on 13.04.2021]


*Judgment by Justice BR Gavai

Know Thy Judge| Justice B.R. Gavai

For Appellants: Senior Advocates Dr. A.M. Singhvi, Neeraj Kishan Kaul

For respondents: Senior Advocate Gurukrishna Kumar, Advocate Prashant Bhushan

For State Authorities: Advocate V. Shekhar

 

 

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has directed that Rohingyas in Jammu, on whose behalf the present application is filed, shall not be deported unless the procedure prescribed for such deportation is followed.

The issue at hand

On 8.08.2017, the Ministry of Home Affairs, Government of India issued a letter to the Chief Secretaries of all the State Governments/UT Administrations, advising them to sensitize all the law enforcement and intelligence agencies for taking prompt steps and initiating deportation processes.

Petitioners are Rohingya Refugees who had fled Mayanmar in December 2011 when ethnic violence broke out. While their main writ petition seeks direction to the Central Government to provide basic human amenities to the members of the Rohingya Community, who have taken refuge in India in various refugee camps in New Delhi, Haryana, Allahabad, Jammu and various other places, they had sought interim relief of

(i) the release of the detained Rohingya refugees; and

(ii) a direction to the Union of India not to deport the Rohingya refugees who have been detained in the sub¬jail in Jammu.

As per newspaper reports appearing in the first/second week of March, 2 2021, about 150-170 Rohingya refugees detained in a subjail in Jammu face deportation back to Myanmar. Various reports showed that there are more than about 6500 Rohingyas in Jammu and that they have been illegally detained and jailed in a sub¬jail now converted into a holding centre.

The impending deportation was challenged on the grounds

(i) that the principle of non-refoulement is part of the right guaranteed under Article 21 of the Constitution;

(ii) that the rights guaranteed under Articles 14 and 21 are available even to non-citizens; and

(iii) that though India is not a signatory to the United Nations Convention on the Status of Refugees 1951, it is a party to the Universal Declaration of Human Rights 1948, International Covenant on Civil and Political Rights, 1966 and the Convention on the Rights of the Child 1992 and that therefore non-refoulement is a binding obligation.

(iv) that India is a signatory to the Protection of All Persons against Enforced Disappearances, Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment.

The Union of India, however, refuted the claims and contentions on the following grounds:

(i) that a similar application challenging the deportation of Rohingyas from the State of Assam was dismissed by this Court on 4.10.2018;

(ii) that persons for whose protection against deportation, the present application has been filed, are foreigners within the meaning of Section 2(a) of the Foreigners Act, 1946;

(iii) that India is not a signatory either to the United Nations Convention on the Status of Refugees 1951 or to the Protocol of the year 1967;

(iv) that the principle of non¬ refoulement is applicable only to “contracting States”;

(v) that since India has open/porous land borders with many countries, there is a continuous threat of influx of illegal immigrants;

(vi) that such influx has posed serious national security ramifications;

(vii)  that there is organized and well¬orchestrated influx of illegal   immigrants   through   various   agents   and   touts   for   monetary considerations;

(viii)  that Section 3 of the Foreigners Act empowers the Central Government to issue orders for prohibiting, regulating or restricting the entries of foreigners into India or their departure therefrom;

(ix)  that though the rights guaranteed under Articles 14 and 21 may be available to 4 non-citizens, the fundamental right to reside and settle in this country guaranteed under Article 19(1)(e) is available only to the citizens;

(x) that the right of the Government to expel a foreigner is unlimited and absolute; and

(xi)  that intelligence agencies have raised serious concerns about the threat to the internal security of the country.

Analysis by the Court

“It is also true that the rights guaranteed under Articles 14 and 21 are available to all persons who may or may not be citizens. But the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).”

While India is not a signatory to the Refugee Convention and hence, serious objections are raised, whether Article 51(c) of the Constitution can be pressed into service, unless India is a party to or ratified a convention, there is, however, no doubt that the National Courts can draw inspiration from International Conventions/Treaties, so long as they are not in conflict with the municipal law.

The Court took note of the serious allegations made by the Union of India relating to (i) the threat to internal security of the country; and (ii) the agents and touts providing a safe passage into India for illegal immigrants, due to the porous nature of the landed borders. It also considered the fact that an application filed for similar relief, in respect of those detained in Assam has already been dismissed by the Court. Therefore, the interim relief prayed for was refused.

The Court, however, made clear that the Rohingyas in Jammu, on whose behalf the present application is filed, shall not be deported unless the procedure prescribed for such deportation is   followed.

[Mohammad Salimullah v. Union of India, 2021 SCC OnLine SC 296, order dated, 08.04.2021]


Appearances before the Court by:

For Petitioners: Senior Advocate Colin Gonsalves and Advocate Prashant Bhushan

For Union of India: Solicitor General Tushar Mehta

For Jammu and Kashmir: Senior Advocate Harish Salve

For Intervenors: Senior Advocates Vikas Singh and Mahesh Jethmalani

Hot Off The PressNews

Bureau of Police Research and Development (BPR&D) conducted a study in 2004 into the factors causing stress in forces and suggest remedial measures.

The Indian Institute of Management (IIM), Ahmedabad did a similar study in 2012 for Border Security Force (BSF) and Central Reserve Police Force (CRPF).

BPR&D has also undertaken a research study on “Comparative Analysis of Attrition and Suicide Cases in CAPFs and Corrective Measures” through the Indian Institute of Public Administration (IIPA) in September, 2020.

Since ‘Police’ is a State subject as per the Seventh Schedule to the Constitution of India, the personnel matters of State police are handled by State Governments themselves. State Governments are expected to take appropriate steps for welfare of State Police personnel.

Some of the measures taken to check such incidents and to improve working conditions of CAPFs/ARs personnel are given below:-

  1. Transparent policies pertaining to transfer and leave of CAPFs and AR personnel. The hospitalization period due to injuries while on duty is treated as on duty. Choice posting is considered to the extent possible after the personnel served in hard area.
  2. Regular interaction of officers with troops to find out and redress their grievances.
  3. Ensuring adequate rest and relief by regulating the duty hours.
  4. Improving living conditions for troops, providing adequate recreational/entertainment, sports, communication facilities etc. Crèche facility is also provided at various establishments (where feasible) to facilitate the female employees.
  5. Facility of retention of government accommodation at the place of last posting(for keeping the family) while posted in North-Eastern (NE) States, Jammu & Kashmir(J&K) and Left-Wing Extremism (LWE) affected areas (except State Capitals)
  6. Providing better medical facilities, organizing talks with specialists to address their personal and psychological concerns and organizing Meditation & Yoga routinely for better stress management.
  7. Adequately compensating the troops deployed in difficult areas.
  8. Other welfare measures like facility of Central Police Canteen (CPC), scholarship for wards etc.
  9. Air travel to a non-entitled class of personnel in J&K. Also Air courier service has been provided to CAPF personnel deployed in NE States, J&K as a welfare measure.
  10. Designating retired CAPF personnel as ex-CAPF personnel for better identity and community recognition.
  11. Promotions are released regularly to eligible personnel as and when the vacancies arise. Financial benefits under Modified Assured Career Progression (MACP) are given in case promotion does not take place for want of vacancies on completion of 10, 20 & 30 years of service.

Regarding State police forces, the Central Government has been persuading the States for implementation of various policy reforms, including those relating to appropriate pay, working hours and promotional prospects of Constables, provision of housing and manpower & basic facilities in police stations.

Under the scheme of Assistance to States for Modernisation of Police, implementation of police reforms is also being incentivized,  which inter alia include police reforms like “Outsourcing of peripheral and non-policing activities”, “computerization of police stations” and “Replacement of orderly system by system”  to reduce the burden on State police personnel.


Ministry of Home Affairs

[Press Release dt. 10-02-2021]

[Source: PIB]

Appointments & TransfersNews

Central Government revises the tenure of Justice (Retd.)Bansi Lal Bhat and Justice (Retd.) A.I.S. Cheema as Judicial Member, National Company Law Appellate Tribunal (NCLAT) for a period till their attaining the age of 67 years, or until further orders, whichever is earlier.

NOTIFICATION


Ministry of Corporate Affairs

[05-01-2021]

Legislation UpdatesNotifications

Central Government hereby declares that whole of the State of Nagaland to be ‘disturbed area’ for a period of six months with effect from 30-12-2020 for the purpose of Armed Forces (Special Powers) Act, 1958.

Read the notification, here: NOTIFICATION.


Ministry of Home Affairs

[Notification dt. 30-12-2020]