Legislation UpdatesStatutes/Bills/Ordinances

The Government of Telangana has issued draft Telangana Child Labour (Prohibition and Regulation) (Amendment) Rules, 2021 vide notification dated September 1, 2021. The Draft Rules further amend the Telangana Child Labour (Prohibition and Regulation) Rules, 1995 in the following manner:

  • Rule 2A has been inserted which deals with Awareness on prohibition of employment of child & adolescent in convention of Act and states the following:
    1. Public awareness campaigns should be arranged by State Government to make public aware about the provisions of the Act, hence discouraging employers or other persons from engaging children and adolescents in any occupation or process in contravention of the provisions of the Act;
    2. Aware the public about the provisions of the Ac by displaying to the possible extent the provisions of the Act, these Rules and any other information relating thereto in railway coaches, at railway stations, major bus stations, toll plazas, ports and port authorities, airports and other public places etc.
    3. State Government shall also promote inclusion of training and sensitisation material on the provisions of the Act and the responsibilities of various stakeholders thereto, in State Labour Service, police, judicial and civil service academies, teachers training and refresher courses and arrange sensitisation programmes for other relevant stakeholders including, panchayath members, doctors and concerned officials of the Government.
  • Rule 2B has been inserted which relates to child to help his family without affecting education shall be inserted which states that a child may work without affecting his school education subject to following conditions-
    1. Shall not work in hazardous occupation or process
    2. Shall not work at any stage of manufacturing, production, supply or retail chain that is remunerative to the child or his family.
    3. Shall not perform any task during school hours & between 7pm to 8am.
    4. Shall not be engaged in any task continuously without rest which may make him tired.
  • Rule 2C has been inserted which states that a child may be allowed to work as an artist subject to following conditions-
    1. No child shall be allowed to work more than 5 hours in a day & not more than 30 hours without rest.
    2. Any producer of any audio-visual media production involving child shall obtain prior permission from District magistrate where the activity is to be performed. The consent of parents & guardians shall also be obtained prior to the participation of child in an event.
    3. Appropriate facilities for education of the child shall be arranged so to ensure no discontinuity from his lessons in school.
    4. No child shall be allowed to work consecutively for more than 27 days.
    5. Atleast 1 responsible person to be appointed for a maximum of 5 children for the production or event to ensure the protection, care & best interest of the child.
    6. Atleast 20% of income earned by the child from production or event shall be directly deposited in fixed deposit in Nationalized Bank in the name of the child.
  • The medical authority while examining an adolescent for issuing the certificate of age shall take into account-
    1. The Aadhar card of the adolescent
    2. the date of birth certificate from school or the matriculation or equivalent certificate from the concerned examination Board of the adolescent, if available, and in the absence thereof;
    3. The birth certificate of the adolescent given by a corporation or a Local Authority.
  • Form E has been inserted, ‘Undertaking under Rule 2C (1)(b) of the Telangana Child and Adolescent Labour (Prohibition and Regulation) Rules, 1995’.

The Draft Rules are open for objections and suggestions, if any, should be addressed to the Special Chief Secretary to Government, Labour, Employment, Training and Factories Department, Telangana Secretariat, Hyderabad through the Commissioner of Labour, T.Anjaiah Bhavan, RTC ‘X’ Roads, Hyderabad, Telangana within 45 days from September 02, 2021.

 


*Tanvi Singh, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Considering the need for continuous monitoring of the implementation of the schemes in favour of the affected children, the bench of L. Nageswara Rao and Aniruddha Bose, JJ has issued a series of directions after it was submitted before it by amicus curiae Gaurav Agarwal that identification of children who have become orphans or have lost one of their parents during this pandemic does not brook any delay. Immediate relief should follow the identification of such children without any delay.

Data

The information provided by the State Governments/Union Territories on the ‘Bal Swaraj’ Portal upto 05.06.2021 shows that there are 30,071 children who have become orphans or have lost one parent or abandoned. There are 3,621 orphans, 26,176 children who have lost one parent and 274 children who have been abandoned.

Key suggestions

  • the DCPO should meet the child and the guardian immediately after receipt of information and ascertain the willingness of the guardian to take care of the child apart from making an assessment of the immediate needs of the child and the financial condition of the guardian.
  • DCPO should ensure that adequate provision is made for ration, food, medicines and clothing etc. for the child.
  • An amount of Rs.2,000/- per month should be released in favour of the child till CWC passes an order after due inquiry.
  • follow-up with the child at least once a month to ascertain his/her well being.
  • The financial benefit that was announced by Integrated Child Protection Scheme (ICPS) to the tune of Rs.2000/- per month per child has to be provided immediately by the DCPOs.
  • There should be continuous monitoring regarding the welfare of the child by the District Child Protection Units (DCPUs) even after the financial order is passed by the CWC. This should be done periodically every three to six months.
  • the affected children should not face a situation of discontinuance of their education. If the affected children are studying in Government schools they should be permitted to continue. In so far as the children who are studying in private schools, the State Governments/Union Territories should take steps and direct the continuance of the children in those schools at least for period of six months by which time some arrangement can be worked out.
  • the protection of property rights of the children, further education of the children including employment opportunities, special care to be taken in respect of the girl child ( to be taken up on the next date of hearing.)

Illegal adoption of affected children

The State Governments/Union Territories are directed to prevent any NGO from collecting funds in the names of the affected children by disclosing their identity and inviting interested persons to adopt them. No adoption of affected children should be permitted contrary to the provisions of the JJ Act, 2015. Invitation to persons for adoption of orphans is contrary to law as no adoption of a child can be permitted without the involvement of CARA.

“Stringent action shall be taken by the State Governments/Union Territories against agencies/individuals who are responsible for indulging in this illegal activity.”

Direction issued

(1) The State Governments/Union Territories are directed to continue identifying the children who have become orphans or lost a parent after March, 2020 either due to Covid-19 or otherwise and provide the data on the website of the NCPCR without any delay. The identification of the affected children can be done through Childline (1098), health officials, Panchayati Raj Institutions, police authorities, NGOs etc.

(2) The DCPU is directed to contact the affected child and his guardian immediately on receipt of information about the death of the parent/parents. Assessment shall be made about the suitability and willingness of the guardian to take care of the child. The DCPU should ensure that adequate provisions are made for ration, food, medicine, clothing etc. for the affected child. Financial assistance to which the disconsolate child is entitled to under the prevailing schemes by the Central Government and the State Governments/Union Territories should be provided without any delay.

(3) The DCPO should furnish his phone number and the name and phone number of the local official who can be contacted by the guardian and the child. There should be a regular follow up by the concerned authorities with the child at least once in a month.

(4) If the DCPO is of the prima facie opinion that the guardian is not suitable to take care of the child, he should produce the child before the CWC immediately.

(5) CWC should provide for the essential needs of the child during the pendency of the inquiry without fail. The inquiry should be completed expeditiously. CWC shall ensure that all financial benefits to which the child is entitled are provided without any delay.

(6) The State Governments/Union Territories are directed to make provisions for continuance of education of the children both in Government as well as in private schools.

(7) The State Governments/Union Territories are directed to take action against those NGOs/individuals who are indulging in illegal adoptions.

(8) Wide publicity should be given to the provisions of the JJ Act, 2015 and the prevailing schemes of the Union of India and the State Governments/Union Territories which would benefit the affected children.

(9) DPCO shall take the assistance of government servants at the Gram Panchayat level to monitor  the welfare of the disconsolate children who are devastated by the catastrophe of losing their parent/parents.

[IN RE CONTAGION OF COVID 19 VIRUS IN CHILDREN PROTECTION HOMES, 2021 SCC OnLine SC 422, order dated 07.06.2021]


FOR NCPCR Mr. K. M. Nataraj, Ld. ASG, Ms. Swarupama Chaturvedi, AOR, Ms. Indira Bhakar Adv., Ms. Neha Rai, Adv.

Union of India: Mr. Aishwarya Bhati, ASG Mr. Akshay Amritanshu, Adv Mr. B.V. Balram Das, AOR Mr. S.S. Rebello, Adv. Ms. Swati Ghildiyal, Adv. Mr. Prashant Singh B, Adv. Mr. G.S. Makker,Adv. Mr. Raj Bahadur, AOR Mr. Rana Mukherjee, Sr. Adv. Ms. Anitha Shenoy,Sr.Adv. Ms. Srishti Agnihotri, AOR Mr. Abhishek Jebaraj,Adv. Ms. Sanjana Grace Thomas,Adv. Ms. Anmol Gupta,Adv. Mr. Chandratanay Chaube, Adv.

Case BriefsForeign Courts

Supreme Court of Ireland: While deliberating on a somber appeal of “life or death”, filed by the parents of a boy (hereinafter referred to as ‘John’ in order to protect the child’s privacy) with permanent brain injuries, intended at ensuring that they, rather than his treating hospital, have control over his medical treatment, the bench of Mr Justice O’Donnell, Ms Justice Dunne, Ms Justice O’Malley, and Ms. Justice Baker, held that the hospital would not be acting unlawfully if the clinical director considered it to be in the best health and welfare interests of John, (and if it was considered appropriate to do so) to withhold life-prolonging treatments/ supports that are not considered to be in the best medical or welfare interests of John. However, in order to maintain the possibility and primacy of parental decision-making, in this case, the hospital must act thus only in the instance the prior consent of John’s parents had been sought and refused.

Background

John suffered catastrophic injuries towards the end of June, 2020, in an accident which led to his treatment in ‘the hospital’ since the date of his accident. As per the doctors, John was required to be on a ventilator until the end of July when he was successfully extubated following a previous unsuccessful attempt. As a result of his injuries, John is currently fed by a nasogastric tube, has a long-term catheter to facilitate the delivery of medications. He had a urinary catheter and is doubly incontinent. As per the diagnosis, it is highly unlikely that John will ever walk, talk, develops any meaningful awareness of his surroundings, be able to communicate or process information; nor will he ever be capable of performing any voluntary movements.

In addition to the unfortunate condition, John has developed a severe form of ‘dystonia’ which is a hyperkinetic movement disorder that can arise for a number of reasons, including an acquired injury to the brain, in particular. This causes abnormal electrical signals to be sent to the muscles. In turn, these signals trigger painful, prolonged, and involuntary contractions of muscles. This is where the heart of the dispute lies- differences between the family and the hospital vis-à-vis the approach towards the treatment of John’s dystonia.

Medical Concerns: Although the medical team had gained a certain degree of control over John’s dystonia, but in their estimation, the condition is merely hidden and not gone. The dispute also centers on the consequences in case John suffers a further dystonic episode or, his condition worsens so much that invasive ICU measures are necessary to save his life. It is their professional opinion that, ultimately, John will suffer a dystonic crisis incapable of successful intervention; this is because, over time, John’s cardiac respiratory reserves will decrease to the point of him being unable to withstand a dystonic crisis.  The doctors were of the opinion that John’s respiratory capacity is failing due to the administration of painkilling medication to ease the pain brought on by a dystonic episode; whereas the parents are of firm belief that John’s preference would be for his life to be continued for as long as possible by whatever means necessary.

Family’s Concerns: The concerns expressed by the family members were highlighted in the affidavit submitted by John’s guardian ad litem Mr McGrath, “Her (mother) view was that the clinicians were always negative in relation to the prospects for John. It is apparent that she found it frustrating and upsetting that so much of the discussions with the treating doctors concerned the possibility of his early death”. The families pointed out that John’s physical injuries have healed and he just needs time to recuperate further. Their view is that John should be given a chance of life. They also accepted that John would most likely require a lifetime of care but, according to McGrath, “She believed that he could come out of it as a new born baby to the point where he would relearn each step”. The Guardian also pointed out the opinions of John’s father, which were more or less similar to that of the mother, “He expressed the view that John did not seem to be in a lot of pain and he described the situation of John as being like he was in a very long sleep. He noted that his heart, lungs, and liver were fine. He did not need oxygen or life support. Like John’s mother, he emphasised a desire to give John a chance and to treat him in the context of further care needs. He did, however, accept that if that was not working, he would have to accept that situation”.

Relief sought: The hospital thus sought permission to administer such medication, sedation or anaesthesia as might be required to alleviate breakthrough or neurological symptoms, and the permission to withhold certain specified invasive treatments and therapies.

Meanwhile, the position of John’s parents was that they would not consent to a care plan that envisaged a scenario where medication might be administered to a level that caused a risk to John’s life.

Observations

At the heart of this case is the concern of the medical team not to prolong John’s pain and suffering, on the one hand, and the concern of his parents that he should be allowed the chance to recover to the fullest extent possible by whatever means are available, on the other hand. At the moment, these positions are in a precarious – if uneasy – balance. However, these positions may prove to be irreconcilable in the event that John suffers from any further serious dystonic episode. This is the dilemma at the heart of this very sad case”. Highlighting the quandary that came before the Court, the Bench at first addressed the decision rendered on the issue by the High Court. The High Court had concluded that the conduct of the parents in the particular circumstances amounted to a failure, therefore requiring the State, through the court, to supply the place of the parents. Keeping in mind the decision of the High Court, the Court delved into a detailed scrutiny of the constitutional aspects involved- 

Constitutional Aspects – Child’s interest, Parental Failure: The key provision of the Irish Constitution involved in the proceedings was Article 42A, which allowed the State to intervene in case the parents fail in their duty to the child to the extent that the welfare of the child was prejudicially affected; the best interest of the child being the paramount consideration. Article 42A recognises family as the natural, primary and fundamental unit group of society possessing inalienable and imprescriptible rights antecedent and superior to all positive law, and as such being the primary and natural educator of the child. “Some decisions made within the Family are decisions by parents in relation to their children, and where it is possible that the parental decision, or the absence of a parental decision can be said to be damaging to the interests of the child. Article 42A.1 is an emphatic statement of the rights of the child, and that there is, therefore, a corresponding duty on parents to uphold and vindicate those rights”.

The Court duly noted that the question of medical treatment is one such area which can pose a distinct problem because parental decisions in relation to medical treatment are not necessarily an example of collective family decision-making about life choices. In common law, any medical procedure requires the patient’s consent; since a child cannot lawfully provide such consent, a substitute consent is necessary. In such circumstances, the rights of the child come to the forefront. One of the objectives of Article 42A.1 is to ensure that such cases were not approached by reference to the objective of maintaining the authority of the family, but rather through the lens of the rights of the child.

Rejecting the argument put forth by the parents that, there must be parental failure to such an extent that the safety or welfare of the child is likely to be prejudicially affected and the case must be exceptional; the Bench observed that if there is parental failure to the extent required by the Constitution and the rights of children were prejudicially affected, then the State could not be barred from acting to protect the child because, ‘exceptionality’ is not a legal test capable of determining this or any other case. It is potentially dangerous that it “may lead to the wrongful downgrading of significant circumstances just because they happen not to be exceptional or to their wrongful upgrading just because they happen to be exceptional” –HH v. Deputy Prosecutor Italian Republic, Genoa, [2012] 3 WLR 90.

Any approach to the question of whether a particular parental decision should be supplanted by the State must give full value and effect to the genuine, heartfelt, and honest response of the family here, even if it runs counter to the entirety of the medical consensus”. The Court duly observed that John’s parents’ response, in this case, has been both exemplary and humbling. The parents, even though now separated, have been with John in the Hospital from the moment he was admitted and have remained involved and the father has made it clear that he sees his role as being as supportive as possible to John’s mother. However, the Court also noted that John’s family had to deal with the confusing medical procedures and specialisations which they had never encountered before and attempt to digest and comprehend sometimes complex medical terms and advice, especially now that the matter has developed legal technicalities.

Regarding Euthanasia: The Court also considered the question of whether the course of treatment proposed amounts to an impermissible acceleration of death and, therefore, euthanasia. The Court however stated that the course proposed by the Hospital, did not amount to euthanasia or the impermissible hastening of death by direct intentional measures. The Bench noted that, “It is perhaps understandable why, particularly in a crisis situation involving engagement with unfamiliar, and perhaps bewildering, medical and legal terminology and procedures, John’s mother might understand the application in this way if, indeed, she does so”.

Conclusion

Upon detailed perusal and appreciation of John’s family’s concerns and their position on the matter, the Court however reluctantly but clearly concluded that, John’s parents’ decision to refuse their consent to any care plan that contemplates, in the event of a dystonic or other medical crisis, the administration of whatever level of medication is required to alleviate suffering, unless invasive therapies and treatments are also made available for the purpose of resuscitation, was a decision which could not be said to be in John’s best interests. The Court further concluded that the Parents’ decision to not give the said assent is prejudicial to his welfare since it was a decision which, if implemented, would be likely on the evidence to cause him extreme and avoidable pain and suffering. It is also clear, on the evidence that any intervention in John’s case will (even if successful in the short term) return him to a weakened state of health, with depleted cardio-respiratory reserves. Thus, albeit the commendable care, love and determination shown by John’s parents, their decision in this single regard can properly be described as constituting a failure of duty.

Other Significant Conclusions: Stating that cases involving the withholding of medical treatment contrary to the wishes of a family of a child involve decisions of enormous importance for everyone involved, the Court also made the following conclusions-

  • A child has rights under the Constitution both individually as a person, and collectively as a member of a family. The Constitution recognises the benefits to a child of being a member of a family. The dynamics of relationships are sensitive and important and should be upheld where possible.
  • In cases of disagreements between doctors and parents as to medical treatment, it may be necessary to distinguish between consent to treatment and the withholding of treatment.
  • In the absence of a specific statutory procedure to resolve disputes as to the future treatment of a child, wardship jurisdiction may be used to determine if the court, in performance of the State’s duty under Article 42A, should supply the place of the parents and provide, in the particular circumstances, consent to treatment. Accordingly, wardship orders should be limited to the relevant decision as to those aspects of medical treatment where there is reason to believe that parental approval will not be provided.

[J.J., In Re., S:AP: IE:2020:000131, decided on 22-01-2021]


Sucheta Sarkar, Editorial Assistant has put this story together.

Case BriefsSupreme Court Roundups

2020 has been a year of COVID-19, challenges, and changes. Of many things that this year has taught us, one of the biggest lessons has been our ability to work from home alone – but together! Like most of us, the Courts too took the cue and started functioning via video conferencing when the pandemic hit the World. At first, the Supreme Court restricted it’s functioning to avoid mass gatherings in Courts and directed that only urgent matters will be heard, however, soon all the in-person hearings were completely banned and the Court directed that it would hear “extremely urgent” matters via video conferencing.

Ultimately, faced with the unprecedented and extraordinary outbreak of a pandemic, Supreme Court issued guidelines on functioning of courts through video conferencing. It said that it was necessary that Courts at all levels respond to the call of social distancing and ensure that court premises do not contribute to the spread of virus.

Also read:

When the video conference hearings first began, the Courts and the public at large were skeptical about it’s success, however, the Supreme Court, in October, said that the “the system of Video Conferencing has been extremely successful in providing access to justice.” 

Read: SC says “system of Video Conferencing has been extremely successful”; alters only one guideline from April 6 order

Here are a few unmissable facts and stories from the highest Court of the country:

  • Even though most of the Court functioning took place online and through video conferencing, 696 judgments were delivered in the year 2020 .
  • All the Constitution bench verdicts were unanimous with no dissenting opinion. [Read more]
  • In a first, Single-Judge bench started hearing cases. [Read more]
  • A new dress code was notified for advocates in light of the COVID-19 pandemic. [Read more]
  • 228 advocates registered as Advocates-on-Record of the Supreme Court. [Read more]
  • 2 judges, Justice R. Banumathi and Justice Arun Mishra retired

Read:

Read: “Justice Ramana’s proximity with Mr. Chandrababu Naidu is too well-known”; Read what Andhra Pradesh CM Jagan Mohan Reddy wrote in his letter to CJI

Here’s a quick roundup of all the important Supreme Court judgments:

11 Constitution bench judgments 

  • All the Constitution bench verdicts were unanimous with no dissenting opinion.
  • 9 out of 11 Constitution bench judgments were delivered by benches consisting of Justices Arun Mishra, Indira Banerjee, Vineet Saran and M.R. Shah, followed by Justices Aniruddha Bose and S. Ravindra Bhat who were part of Constitution benches in 5 and 4 cases, respectively.

Read more…


Maintenance in matrimonial disputes| Extensive guidelines framed; Issue of overlapping jurisdiction under different Laws resolved

The bench ofIndu Malhotra and R. Subhash Reddy, JJ framed guidelines on overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

Read more…

Also read: Guidelines

[ Rajnesh v. Neha,  2020 SCC OnLine SC 903 ]


Appointments and functioning of Tribunals

A 3-judge bench issued extensive directions in relating to selection, appointment, tenure, conditions of service, etc. relating to various tribunals, 19 in number, thereby calling for certain modifications to the Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020.

“Dispensation of justice by the Tribunals can be effective only when they function independent of any executive control: this renders them credible and generates public confidence.”

Read more…

Also read: ‘It’s high time we put an end to the disturbing trend of Govt ignoring our directions.’ Read why Supreme Court directed constitution of National Tribunals Commission

[Madras Bar Association v. Union of India2020 SCC OnLine SC 962 ]


Constitutionality of imposition of GST on lotteries, betting and gambling

Lottery, betting and gambling are well known concepts and have been in practice in this country since before independence and were regulated and taxed by different legislations. When Act, 2017 defined the goods to include actionable claims and included only three categories of actionable claims, i.e., lottery, betting and gambling for purposes of levy of GST, it cannot be said that there was no rationale for including these three actionable claims for tax purposes.

Read more…

[Skill Lotto Solutions v. Union of India, 2020 SCC OnLine SC 990 ]


Homebuyer can choose between seeking remedy under the RERA Act or the Consumer Protection Act

The bench of UU Lalit and Vineet Saran, JJ held that the Real Estate (Regulation and Development) Act, 2016 (RERA Act) does not bar the initiation of proceedings by allottees against the builders under the Consumer Protection Act, 1986.

Read more… 

[Imperia Structures v. Anil Patni,  2020 SCC OnLine SC 894 ]


Domestic Violence| Wife’s right to residence in shared household belonging to not just husband but also to his relatives

“The domestic violence in this country is rampant and several women encounter violence in some form or the other or almost every day, however, it is the least reported form of cruel behavior. A woman resigns her fate to the never-ending cycle of enduring violence and discrimination as a daughter, a sister, a wife, a mother, a partner or a single woman in her lifetime.” 

Read more…

[Satish Chander Ahuja v. Sneha Ahuja, 2020 SCC OnLine SC 841 ]


Daughters’ coparcenary rights

The 3-judge bench of Arun Mishra, SA Nazeer and MR Shah, JJheld that daughters have right in coparcenary by birth and that it is not necessary that the father coparcener should be living when the Hindu Succession (Amendment) Act, 2005 came into force.

“The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth.”

Read more…

[ Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 ]


Permanent commission to all women Army officers

The bench of Dr. DY Chandrachud and Ajay Rastogi, JJ has ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service.

“Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women.”

Read more… 

[Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469]


RBI’s ban on Cryptocurrency trading quashed

The 3-judge bench of Rohinton Fali Nariman, S Ravindra Bhat and V Ramasubramania, JJ has struck down the curb on trading in virtual currency, cryptocurrency and bitcoins in India.

In the 180 pages long verdict penned by Justice Ramasubramania, it was held,

“When the consistent stand of RBI is that they have not banned Virtual currencies (VCs) and when the Government of India is unable to take a call despite several committees coming up with several proposals including two draft bills, both of which advocated exactly opposite positions, it is not possible for us to hold that the impugned measure is proportionate.”

Read more…

[Internet & Mobile Assn. of India v. Reserve Bank of India, (2020) 10 SCC 274 ]


Installation of CCTV Cameras in all Police Station

The 3-judge bench of RF Nariman*, KM Joseph and Anirudhha Bose, JJ directed all the States and UTs to install CCTV cameras in all Police Stations and file compliance affidavits within 6 weeks. The Court said that the directions are in furtherance of the fundamental rights of each citizen of India guaranteed under Article 21 of the Constitution of India, and hence, the Executive/Administrative/police authorities are to implement this Order both in letter and in spirit as soon as possible.

Read more… 

[Paramvir Singh Saini v. Baljit Singh, 2020 SCC OnLine SC 983 ]


Automatic expiration of stay 

“Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless extension is granted for good reason, within the next six months, the trial Court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same.” 

Read more…

[Also read detailed report on the 2018 verdict in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, 2018 SCC OnLine SC 310,  here.]


Political parties to publish criminal antecedents of candidates & give reasons for their selection

A bench of RF Nariman and S. Ravindra Bhat, JJ directed all political parties to upload on their website details of pending criminal cases against candidates contesting polls, noting that there has been an alarming increase in criminalisation of politics. The Court said political parties will also have to upload reasons for selecting candidates with pending criminal cases on their website.

Read more… 

[Rambabu Singh Thakur v. Sunil Arora, (2020) 3 SCC 733 ]


SC/ST (Prevention of Atrocities) Amendment Act, 2018 constitutionally valid

 A 3-judge bench of Arun Mishra, Vineet Saran and S. Ravindra Bhat, JJ has upheld the constitutional validity of the SC/ST (Prevention of Atrocities) Amendment Act, 2018, and said that a court can grant anticipatory bail only in cases where a prima facie case is not made out. In the unanimous verdict, Justice Mishra penned the opinion for himself and Justice Saran whereas Justice Bhat wrote a separate but concurring opinion.

Read more… 

[Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 ]


Test for determining non-arbitrability of disputes

The 3-judge bench of NV Ramana*Sanjiv Khanna** and Krishna Murari, JJ overruled the ratio in Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706 wherein it was held that landlord-tenant disputes governed by the provisions of the Transfer of Property Act, 1882, are not arbitrable as this would be contrary to public policy.

Read more…

[Vidya Drolia v. Durga Trading Corporation, 2020 SCC OnLine SC 1018 ]


Admissibility of electronic evidence without certificate under Section 65B of Evidence Act, 1872

In a reference dealing with the interpretation of Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the 3-judge bench of RF Nariman, S. Ravindra Bhat and V. Ramasubramanian, JJ held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in by the 3-judge bench in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, and incorrectly “clarified” by a division bench in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801. The Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced.

Read more…

[Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 ]


Advance tax ruling system

The bench of SK Kaul and Indu Malhotra, JJ has recommended the Central Government to consider the efficacy of the advance tax ruling system and make it more comprehensive as a tool for settlement of disputes rather than battling it through different tiers, whether private or public sectors are involved. It suggested that a council for Advance Tax Ruling based on the Swedish model and the New Zealand system may be a possible way forward.

Writing two postscripts, the Court said that it was forced to do so on account of the backbreaking dockets which are ever increasing and as a move towards a trust between the Tax Department and the assessee.

Read more… 

[National Co-operative Development Corporation v. Commissioner of Income Tax, 2020 SCC OnLine SC 733 ]


Telecos get 10 years to pay AGR dues

Asking Telecom Operators to make the payment of 10% of the total AGR dues as by 31.3.2021, the 3-judge bench of Arun Mishra, SA Nazeer and MR Shah, JJ gave 10 years to the Telecom Service Providers (TSPs) to complete the payment of their AGR dues.

Read more…

[Union of India v. Assn. of Unified Telecom Service Providers of India, (2020) 9 SCC 748 ]


All petitions challenging the IBC provisions relating to personal guarantors transferred to Supreme Court

The Insolvency and Bankruptcy Code is at a nascent stage and it is better that the interpretation of the provisions of the Code is taken up by the Supreme Court to avoid any confusion.

Read more…

[Insolvency and Bankruptcy Board of India v. Lalit Kumar Jain,  2020 SCC OnLine SC 884 ]


The final order that sealed the fate for the Nirbhaya convicts

Putting the last nail in the coffin for the Nirbhaya death row convicts, the 3-judge bench of R. Banumathi, Ashok Bhushan and AS Bopanna, JJ dismissed the plea file by Pawan Kumar Gupta challenging the rejection of his mercy petition by the President on the ground that his plea of juvenility had not been finally determined and this aspect was not kept in view by the President of India while rejecting his mercy plea.

The hearing took place late at night at 2:30 AM.

Read more…

Also read:

[Pawan Kumar Gupta v. State of NCT of Delhi, 2020 SCC OnLine SC 340 ]


Shaheen Bagh Protests

“Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.” 

The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has, in the Shaheen Bagh protests matter, held that while there exists the right to peaceful protest against a legislation, public ways and public spaces cannot be occupied in such a manner and that too indefinitely.

Read more…

[Amit Sahni v. Commissioner of Police, 2020 SCC OnLine SC 808 ]


Farmers’ protest

“Indeed the right to protest is part of a fundamental right and can as a matter of fact, be exercised subject to public order.”

Refusing to interfere with the ongoing Farmers’ protest, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ said that the farmers’ protest should be allowed to continue without impediment and without any breach of peace either by the protesters or the police.

Read more…

[Rakesh Vaishnav v. Union of India, 2020 SCC OnLine SC 1032 ]


Sushant Singh Rajput Death Case

When truth meets sunshine, justice will not prevail on the living alone but after Life’s fitful fever, now the departed will also sleep well. Satyameva Jayate.”

A single judge bench of Hrishikesh Roy, J has held the ongoing investigation by the CBI to be lawful and further directed that if any other case is registered on the death of the actor Sushant Singh Rajput and the surrounding circumstances of his unnatural death, the CBI is directed to investigate the new case as well.

Read more… 

[Rhea Chakraborty v. State of Bihar, 2020 SCC OnLine SC 654 ]


Scandalous allegations against Supreme Court judges

After finding advocates Vijay Kurle, Nilesh Ojha and Rashid Khan Pathan guilty of levelling scandalous allegations against Justice RF Nariman and Justice Vineet Saran, the bench of Deepak Gupta and Aniruddha Bose, JJ has sentenced all 3 to undergo simple imprisonment for a period of 3 months each with a fine of Rs. 2000/-. It further said that in default of payment of fine, each of the defaulting contemnors shall undergo further simple imprisonment for a period of 15 days.

Read: 

[Vijay Kurle, In re, 2020 SCC OnLine SC 407  and Rashid Khan Pathan v. Vijay Kurle, 2020 SCC OnLine SC 711]


Vikas Dubey Encounter

After Vikas Dubey, a history-sheeter and gangster-turned-politician, was killed in a police encounter on July 10, 2020, the Supreme Court gave a go ahead to Inquiry Committee headed by Former SC judge Justice B S Chauhan.

Later,  a 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ refused to scrap the Judicial Committee constituted to look into the killing of Vikas Dubey and said that the allegations of bias made against the members of the Commission merely on the basis of newspaper reports and nothing more, are liable to be rejected outright.

“ … the Chairman and a Member of the Commission had held high Constitutional positions and while making allegations the petitioner has based his claim only on the newspaper report and the manner in which the averments are made in the application is unacceptable.”

Read: 

[Ghanshyam Upadhyay v. State of Uttar Pradesh2020 SCC OnLine SC 587 and 2020 SCC OnLine SC 658 ]


Prashant Bhushan Contempt proceedings

Twitter row

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ has, in a 108-pages long verdict, held advocate Prashant Bhushan guilty of criminal contempt in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets. It held,

The tweets which are based on the distorted facts, in our considered view, amount to committing of ‘criminal contempt’. 

The Court, however, sentenced Bhushan with a fine of Rupee 1 for his contemptuous tweets and said

“If we do not take cognizance of such conduct it will give a wrong message to the lawyers and litigants throughout the country. However, by showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of  Re.1/­ (Rupee one).”

Read:

[Prashant Bhushan, In re, 2020 SCC OnLine SC 646 and  2020 SCC OnLine SC 698 ]

Tehelka contempt

In another contempt proceeding against Bhushan, after refusing to accept the explanation of advocate Prashant Bhushan in the 2009 contempt petition against Advocate Prashant Bhushan and former Tehelka Tarun Tejpal, the 3-judge bench of Arun Mishra, BR Gavai and MR Shah, JJ framed larger questions in the matter that will have far-reaching ramifications.

Read more… 

[Amicus Curiae v. Prashant Bhushan, 2020 SCC OnLine SC 651 ]


Kunal Kamra and Rachita Taneja contempt cases 

The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ issued notice to cartoonist Rachita Taneja and comedian Kunal Kamra in two separate cases relating contemptuous social media posts.

Read more…

[Shrirang Katneshwarkar v. Kunal Kamra2020 SCC OnLine SC 1041 and Aditya Kashyap v. Rachita Taneja, 2020 SCC OnLine SC 1042 ]


Here’s the list of some of the important COVID-19 Orders/Direction issued by the Supreme Court:

“Even if one survives from COVID-19, many times financially and economically he is finished.”

“To a worker who has faced the brunt of the pandemic and is currently laboring in a workplace without the luxury of physical distancing, economic dignity based on the rights available under the statute is the least that this Court can ensure them.” 


Also read:

2020 Roundup: 11 Constitution bench judgments, 17 judges, Zero dissent

 

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ has issued directions to ensure education of children in Child Care Institutions which has suffered due to the COVID-19 pandemic.

Amicus Curiae Gaurav Agrawal suggested the Court that infrastructure available in the Child Care Institutions for providing education to children needs to be assessed. On the basis of the assessment of the infrastructure, Child Welfare Committees and the Juvenile Justice Boards through the District Child Protection Units shall inform the State Governments about the deficiencies in the infrastructure, stationary/books etc. It is necessary to ensure that extra classes should be held for children residing in Child Care institutions to make them holistically prepared to take the examinations in March-April, 2021.

Amicus Curiae also highlighted that State of Telangana is providing extra classes for children in Child Care Institutions. The other states should also follow the lead of the State of Telangana and ensure that such extra classes be provided for students/ the children restored to the families due to coronavirus pandemic.

“2,27,518 children were in the Child Care Institutions before the pandemic and 1,48,788 children have been restored to their families/guardians and other foster care homes, as a result of the pandemic. Educational needs of those children who have been handed over to their parents or guardians should be assessed. They might not have attended schools due to various reasons including the financial distress of the parents.”

Further, State of Tripura is following a practice of providing financial aid of Rs.2160 per month to the parents or guardians of the children who have been restored from the Child Care Institutions.

Taking note of the aforementioned submissions of the amicus curiae, the Court issued the following directions

  1. State governments to provide the necessary infrastructure, stationary, books, printers along with the other equipment that is necessary for children to quantitatively attend online classes on the basis of the recommendation made by the District Child Protection Units, within 30 days from the date of the order.
  2. State Government shall also ensure that the required number of tutors are made available for teaching the children in various Child Care Institutions. Extra classes, if necessary, should also be taken for the children to help them in preparing for the final examinations to be held next year.
  3. District Child Protection Units shall inform the District Legal Service Authorities about the progress made in the infrastructure being provided to the Child Care Institutions and the functioning of online classes periodically i.e. once in a month.
  4. District Child Protection Units to make an assessment of the children who are restored to their families or guardians or foster homes during the lockdown by taking the assistance of other statutory bodies like the Child Welfare Committees and Juvenile Justice Boards.
  5. District Child Protection Units to enquire about the financial position of the parents or guardians of the children. If it is found that the children are not being sent to school in view of the financial disability of their parents or guardians, the District Child Protection Units are directed to recommend to State governments to grant financial aid to the parents or guardians concerned. On such recommendation being made by the District Child Protection Units, the concerned authorities of the State governments are directed to release an amount of Rs.2000/- per month for each child, to the parents or guardians of the children in distress, which shall be used for the purpose of the education of the children.
  6. District Care Protection Units to ascertain the number of children who are restored to their families due to lockdown in a particular geographical locality and organize a guide or a teacher for each group of 25 children.

The Court will now hear the matter in February, 2021.

[IN RE: CONTAGION OF COVID 19 VIRUS IN CHILDREN PROTECTION HOMES, 2020 SCC OnLine SC 1026, order dated 15.12.2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of NV Ramana, SK Kaul and BR Gavai, JJ has asked the Central Government to extend the order passed in In Re Contagion of COVID-19 Virus in Children Protection Homes, to Nari Niketans also, if feasable.

The Court had, on 03.04.2020, the bench of L. Nageswara Rao and Deepak Gupta, JJ issued extensive directions to various authorities after taking sup motu cognizance of the issue involving protection of children who fall within the ambit of Juvenile Justice (Care and Protection of Children) Act, 2015 from the spread of Coronavirus that is sweeping the world.

[Rishad Murtaza v. Union of India,  2020 SCC OnLine SC 377, order dated 21.04.2020]

Case BriefsSupreme Court

Supreme Court: Showing dismay over the “tardy implementation” of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Juvenile Justice (Care and Protection of Children) Act, 2015 (the JJ Act), the Bench of Madan B. Lokur and Deepak Gupta, JJ urged the Chief Justice of each High Court to seriously consider establishing child friendly courts and vulnerable witness courts in each district and said:

“We need to have some compassion towards them – even juveniles in conflict with law, since they are entitled to the presumption of innocence – and establishing child friendly courts and vulnerable witness courts is perhaps one manner in which the justice delivery system can respond to ease their pain and suffering.”

The Court said that such child friendly courts and vulnerable witness courts can also be used for trials in which adult women are victims of sexual offences since they too are often traumatized by the not so friendly setting and environment in our courts.

The bench also gave a number of directions in order to invigorate the juvenile justice system in the country. Some of the important directions are as follows:

  • All positions in the National Commission for Protection of Child Rights (NCPCR) and the State Commissions for the Protection of Child Rights (SCPCRs) should be filled up well in time and adequate staff is provided to these statutory bodies so that they can function effectively and meaningfully for the benefit of the children.
  • The State level Child Protection Societies and the District level Child Protection Units should take the assistance of NGOs and civil society to ensure that the JJ Act serves its purpose.
  • All positions in Juvenile Justice Boards (JJBs) and Child Welfare Committees (CWCs) should be filled up expeditiously. The JJBs and CWCs must have sittings on a regular basis so that a minimal number of inquiries are pending at any given point of time.
  • The NCPCR and the SCPCRs must carry out time bound studies and especially a study for estimating the number of Probation Officers required for the effective implementation of the JJ Act. Based on this study, the State Government must appoint the necessary number of Probation Officers.
  • The Ministry of Women and Child Development (MWCD) should have a database of missing children, trafficked children and for follow up of adoption cases etc.
  • Meaningful Special Juvenile Police Units and appoint Child Welfare Police Officers in terms of the JJ Act must be set up at the earliest as Police has an important role as the first responder on issues pertaining to offences allegedly committed by children as well as offences committed against children.
  • The National Police Academy and State Police Academies must consider including child rights as a part of their curriculum on a regular basis and not as an isolated or sporadic event.
  • All the Child Care Institutes must be registered. State Governments and Union Territories would be should appoint eminent persons from civil society as Visitors to monitor and supervise the Child Care Institutions in all the districts.
  • The JJ Fund is a bit of an embarrassment with an absence of an effective response from the State Governments and the Union Territories. Financial Resources should be made available for the welfare of the children.
  • All authorities such as JJBs and CWCs, Probation Officers, members of the Child Protection Societies and District Child Protection Units, Special Juvenile Police Units, Child Welfare Police Officers and managerial staff of Child Care Institutions must be sensitized and given adequate training relating to their position.
  • The Chief Justice of every High Court is requested to register proceedings on its own motion for the effective implementation of the JJ Act so that road-blocks if any, encountered by statutory authorities and the Juvenile Justice Committee of the High Court are meaningfully addressed after hearing the concerned governmental authorities.

The Bench said the policy and decision makers should understand that they are not doing any favour to the children of our country by caring for them – it is their constitutional obligation and the social justice laws enacted by Parliament need to be effectively and meaningfully enforced. [Sampurna Behura v. Union of India, 2018 SCC OnLine SC 106, decided on 09.02.2018]

Case BriefsSupreme Court

Supreme Court: Taking note of the rise in the crimes against children, the bench of Madan B. Lokur and Deepak Gupta, JJ said that the definition of the expression “child in need of care and protection” under Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2000  should not be interpreted as an exhaustive definition. The provisions of the Protection of Children from Sexual Offences Act, 2012 do not provide any definition of a child in need of care and protection. But no one can deny that a child victim of sexual abuse or sexual assault or sexual harassment is a child in need of care and protection. Similarly in a given case, a child accused of an offence and brought before the Juvenile Justice Board or any other authority might also be a child in need of care and protection.  The Court said that it would be unfortunate if certain categories of children are left out of the definition, even though they need as much care and protection as categories of children specifically enlisted in the definition.

The bench also gave elaborate directions in order to ensure the welfare of the children in need of care and protection, some of the important directions are as follows:

  • The Union Government and the governments of the States and Union Territories must ensure that the process of registration of all child care institutions is completed positively by 31.12.2017 with the entire data being confirmed and validated. Inspection Committees should also be set up on or before 31.07.2017 to conduct regular inspections of child care institutions and to prepare reports of such inspections.
  • The governments of the States and Union Territories should draw up plans for full and proper utilization of grants (along with expenditure statements) given by the Union Government under the Integrated Child Protection Scheme.
  • The schemes of the Government of India including skill development, vocational training etc must be taken advantage of for the rehabilitation and social re-integration of children in need of care and protection.
  • Individual child care plans are extremely important and all governments of the States and Union Territories must ensure that there is a child care plan in place for every child in each child care institution on or before 31.12.2017.
  • State and Union Territory Government must establish State Commission for Protection of Child Rights on or before 31.12.2017. The SCPCRs so constituted must publish an Annual Report so that everyone is aware of their activities and can contribute individually or collectively for the benefit of children in need of care and protection.
  • The process of conducting a social audit must be taken up in right earnestness by the National Commission for the Protection of Child Rights as well as by each State Commission for the Protection of Child Rights to bring transparency and accountability in the management.

Stating that every child in need of care and protection must not be placed in a child care institutions, the Court said that alternatives such as adoption and foster care need to be seriously considered by the concerned authorities. The Court said that a status report of the compliance of the aforementioned directions be submitted before the Court on or before 15.01.2018. [Re: Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India, 2017 SCC OnLine SC 534, decided on 05.05.2017]