Hot Off The PressNews

Supreme Court: The Court has sought Centre’s response on a PIL seeking direction from the Government to immediately restore high-speed internet  services and fixed landline phone services across all hospitals and medical establishments in Jammu and Kashmir. A bench headed by Chief Justice Ranjan Gogoi issued a notice to the Centre and tagged the matter along with other related pleas in connection with the Kashmir issue.

On September 11, an advocate named Satya Mitra had filed the plea on behalf of doctor Sameer Kaul and one Salim Jahangeer Kirmani. The petition also sought direction to the central government to desist and refrain in future from blocking or suspending internet and fixed landline phone services in hospitals and medical establishments, along with mobile phone services of doctors and other staff members working in hospitals and medical establishments in Jammu and Kashmir.

The court sent to constitution bench a plea filed by Kashmir Times Executive Editor Anuradha Bhasin seeking the removal of communication blockade in Jammu and Kashmir after the abrogation of provisions under Article 370 and free movement of journalists in the region.

On August 13, Bhasin had moved the plea, claiming Kashmir Times was not published owing to the curbs on communication services and movement. She had alleged that a bar was put on journalists’ rights provided under the different provisions of the Constitution.
The court also sent to constitution bench a PIL filed by child rights expert Enakshi Ganguly and Professor Shanta Sinha, alleging illegal detention of children in Jammu and Kashmir in the wake of abrogation of Article 370.

The court will commence hearing on the pleas relating to Article 370 from Tuesday.

On August 5, the Centre had abrogated Articles 370 and 35A of the Indian Constitution and the Parliament had passed the Jammu and Kashmir (Reorganisation) Act, 2019, bifurcating the former state into two Union Territories – Jammu and Kashmir and Kashmir) with legislature and Ladakh without one. Following this, a batch of petitions was filed in the top court challenging the
move.

(Source: ANI)


More from Supreme Court on Article 370

SC seeks report from J&K HC CJ on claims about people being unable to approach HC

SC asks Central govt to restore normalcy in Jammu & Kashmir

5-judge bench to begin hearing in plea challenging J&K Reorganisation Bill from tomorrow

Won’t rush into passing any direction on removal of restrictions on the media in J&K: SC

No urgent hearing on plea challenging J&K Reorganisation Bill

Also read

Parliament passes the J&K Reorganisation Bill, 2019!

The Jammu and Kashmir Reservation (Amendment) Bill, 2019– What it says?

Rajya Sabha approves the Jammu and Kashmir Reservation (Second Amendment) Bill, 2019!

Jammu and Kashmir Reorganisation (Amendment) Bill, 2019 — Passed by Rajya Sabha; Formation of J&K as a Union Territory!

Hot Off The PressNews

Supreme Court: Terming as “very very serious” the claim that people are finding it difficult to approach the Jammu and Kashmir High Court, the 3-judge bench of bench of Ranjan Gogoi, CJ and S A Bobde and S A Nazeer, JJ has decided to verify it by asking the Chief Justice there to “forthwith” submit a report in this regard.

“If you are saying so, we are bound to take serious note of it. Tell us why it is very difficult for people to approach the high court. Is anybody stopping the people from going to high court? Then it is a very very serious issue,”

The Court said that it will verify the claim after senior advocate Huzefa Ahmadi appearing for two child rights activists claimed that it is very difficult for the people in the state to access the high court there.

The CJI said he would himself visit Srinagar, if required, and he would also speak to the chief justice of high court about this.

“It is stated by Huzefa Ahmadi, senior counsel for the petitioners, that access to the high court of Jammu and Kashmir is seriously affected by the present situation in the state. We request the chief justice of the high court to submit a report on the above issue forthwith,”

Taking note of Ahmadi’s submissions, the CJI said, “You are saying that you cannot go to the high court. We have called for a report from Chief Justice of the high court. If required, I will myself go there.” He further said:

“We must know if there is denial of access to justice. I will personally talk to the chief justice of the high court after this matter is over because what you have said is very very serious thing.”

The bench warned however that if the allegations are found to be incorrect then the petitioners should be ready to face the consequences.

The Court was considering a public interest litigation (PIL) seeking the Supreme Court’s intervention on the issue of detention of children in Kashmir. During the hearing, the bench referred to the prayer made in the petition and said that petitioners have themselves said that children be produced before the juvenile justice committee of the high court. Ahmadi, however, said it is very difficult to approach the high court in the state.

Solicitor General Tushar Mehta, appearing for Jammu and Kashmir, told the bench that all the courts in the state are functioning and even the Lok Adalats have been conducted there. When Mehta said that he wanted to make statement in the court on the issue, the bench said,

“We do not want anybody to make any statement. We will look into it. If people are not able to approach the high court, then we will have to look into it.”

The petition has been filed by child rights activists Enakshi Ganguly and Professor Shanta Sinha against the alleged illegal detention of children in Jammu and Kashmir in the wake of revocation of Article 370 and bifurcation of state. The plea has contended that all persons below the age of 18 years who have been detained be identified through an age census. Seeking directions that illegally detained children be produced before the Juvenile Justice Committee of the high court, the plea has also sought compensation from them.

Last month, Parliament had passed the Jammu and Kashmir (Reorganization) Act, 2019, bifurcating the state into two Union Territories — Jammu and Kashmir with legislature and Ladakh without it. Following this, a batch of petitions were filed in the top court challenging it.

(Source: PTI)


Also read:

Parliament passes the J&K Reorganisation Bill, 2019!

The Jammu and Kashmir Reservation (Amendment) Bill, 2019– What it says?

Rajya Sabha approves the Jammu and Kashmir Reservation (Second Amendment) Bill, 2019!

Jammu and Kashmir Reorganisation (Amendment) Bill, 2019 — Passed by Rajya Sabha; Formation of J&K as a Union Territory!

Case BriefsHigh Courts

Orissa High Court: A Single Judge Bench of Dr A.K. Rath, J., allowed the petition which challenged the order of the trial court whereunder the application of the plaintiffs filed under Order 1 Rule 10 CPC to implead the wife of Defendant 1 was rejected.

The facts of the case were that the plaintiffs-petitioners had instituted the suit for permanent injunction and recovery of possession impleading the wife of the defendant as Defendant 2.

The contention of Mr A.P. Bose, Advocate for the petitioners, was that a part of the suit land had been alienated to the wife of the defendant. The said fact came to the knowledge of the plaintiffs after the written statement was filed. The hearing of the suit had not begun. The intervenor was a necessary party to the suit.

The counsel for defendants Mr S. Udgata, submitted that the written statement was filed in the year 2011. But then, the petition for impleadment was filed after a gap of five years. The intervenor was neither necessary nor proper party to the suit.

The Court relied on the case of Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886, wherein the Apex Court had held that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject matter of the litigation whether it raises questions relating to movable or immovable property. The suit scheduled land had been alienated to the wife of the defendant. In view of the same, the intervenor was a necessary party to the suit thus the petition was allowed. [Ramesh Chandra Sahoo v. Ranjit Kumar Singh, 2018 SCC OnLine Ori 436, decided on 19-12-2018]

Case BriefsForeign Courts

Constitutional Court of South Africa: A Single Judge Bench comprising of Mogoeng, CJ. Dlodlo, Goliath, Petse, AJ, Froneman, Jafta, Khampepe, Madlanga, and Theron, JJ., unanimously granted the applicants rescission in terms of the Uniform Rules of Court and granted leave to intervene to applicants in the trial.

This application was filed for leave to appeal against an order of Supreme Court Appeal where a refusal of rescission and dismissal of an application for leave to intervene by the High Court of South Africa was upheld. The issue before the Court was whether rescission and leave to intervene should have been granted.

Facts of the case are that a group of individuals acquired a company to use the same as a vehicle for commercial opportunities for the benefit of black people. Applicants were shareholders of this company. The company was converted into a public company in order to open up the shareholding to more than 50 persons. It was renamed NC Housing Services and Development Co. Ltd. Due to failure to file annual company returns ROC removed the name of the company from companies register. Later company wanted to sell its major asset for which they applied for re-registration and were subsequently re-registered. A dispute arose between the applicants and the second and third respondents, regarding the proportion of shares owned by the various shareholders.

The respondent filed an application in High Court against the company where the matter was referred to Trial. High Court held that the shareholders could not have been a party in trial as they could not have personally fought the case as they were representative directors. Supreme Court of Appeal held that although the applicants had been participating in the proceedings both as directors and as shareholders, the resolution passed by them barred them from participating in the litigation due to their failure to have set aside the above resolution.

Therefore, this Constitutional Court held that when an individual shareholder is presented as “shareholder” in court proceedings, he becomes party in the litigation in his personal capacity. Orders of the Supreme Court of Appeal and High Court of South Africa were set aside. Court granted rescission in terms of the Uniform Rules of Court and leave to appeal to intervene in the trial. [Morudi v. NC Housing Services and Development Co. Ltd. , (2018) ZACC 32, dated 25-09-2018]

Case BriefsSupreme Court

Supreme Court: Abhay Manohar Sapre, J. speaking for himself and his brother Judge Uday U. Lalit, gave judgment in a civil appeal arising out of matrimonial dispute whereby the appellant challenged the decree of divorce passed by family court and affirmed by High Court of Jharkhand.

The appellant-wife was married to the respondent-husband, and they had a daughter born out of the wedlock who was of marriageable age. The parties married in 1997, but their relations were not cordial from soon after the marriage. This led to the filing of a divorce petition by the husband against the wife on grounds of cruelty and desertion. The Family Judge dissolved the marriage and the decree was confirmed by the High Court.  Aggrieved thus, present appeal was filed by the wife.

The Supreme Court heard the parties and perused the record. It was noted that the parties were living separately for more than a decade. All attempts to conciliation through mediation had failed. There was absolutely no chance of them living together to continue their marital life.  While referring to Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558 and Sanghamitra Ghosh v. Kajal Kumar Ghosh, (2007) 2 SCC 220, the Court held that in order to ensure that parties may live peacefully in future and their daughter would be settled properly, a quietus must be given to all litigation between the parties. Consistent with the broad consensus arrived at between the parties, the Court directed the husband to pay Rs 10 lakhs towards permanent alimony and maintenance to the appellant and the daughter. [Manju Kumari Singh v. Avinash Kumar Singh,2018 SCC OnLine SC 739, dated 25-07-2018]

Case BriefsForeign Courts

Supreme Court of Canada: While considering the issue regarding the powers of investigation of the syndic that whether the assistant syndic of the Chambre de l’assurance de dommages (the syndic) was empowered to demand from the Insurer the production of documents subject to litigation privilege, for inspection, the Bench of McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ., held that Section 337 of the Act Respecting the Distribution of Financial Products and Services is a general production provision that does not specifically indicate that the production must include records for which privilege is claimed, thereby not abrogating litigation privilege attached to a document. It was further observed that, “Although litigation privilege is distinguishable from solicitor-client privilege, it is nevertheless a class privilege and gives rise to a presumption of inadmissibility for a class of communications, namely those whose dominant purpose is preparation for litigation. Thus, any document that meets the conditions for the application of litigation privilege will be protected by immunity from disclosure unless the case is one to which one of the exceptions to that privilege applies.”

In the instant case, the appellant, an assistant syndic of the Chambre de l’assurance de dommages asked the respondent to send her a complete copy of its claim file with respect to one of its insured. The syndic based this request on Section 337 of the Act Respecting the Distribution of Financial Products and Services (ADFPS). However the insurer expressed its inability to present certain documents, citing that they were either covered by solicitor- client privilege or by litigation- privilege. The appellant contended that the aforesaid provision is sufficient to lift the privilege, because it created an obligation to produce ‘any document’.

Perusing a plethora of case laws on the development of law of litigation privilege in Canada, the Court referred to its previous decision in Blank v. Canada (Minister of Justice), 2006 SCC OnLine Can SC 39 : 2006 SCC 39, to highlight the present position vis-à-vis litigation privilege, which states that solicitor-client privilege and litigation privilege are distinct. However that Court observed that, “litigation privilege is subject to clearly defined exceptions, not to a case-by-case balancing test. In the context of privileges, the exercise of balancing competing interests is associated with case-by-case privileges, not class privileges. The exceptions that apply to solicitor-client privilege are all applicable to litigation privilege. These include the exceptions relating to public safety, to the innocence of the accused and to criminal communications.” It was further stated that litigation privilege can be asserted against third parties, including third party investigators who have a duty of confidentiality, therefore the insurer can very well assert the litigation privilege against the syndic, which cannot be lifted by Section 337 of ADFPS. [Lizotte v. Aviva Insurance Company of Canada, 2016 SCC OnLine Can SC 35 : [2016] SCC 52, decided on 25.11.2016]

Case BriefsSupreme Court

Supreme Court: Stating that the virus of seeking adjournments needs to be controlled in order to avoid the abuse of the process of law, the bench of Dipak Misra and R. F. Nariman, JJ said that such act causes colossal insult to justice and to the concept of speedy disposal of civil litigation.

In a suit relating to recovery of possession, the examination- in-chief continued for long and the matter was adjourned seven times. The defendant sought adjournment after adjournment for cross-examination on some pretext or the other as if it was his right to seek adjournment on any ground whatsoever and on any circumstance. The Court said that a counsel appearing for a litigant has to have institutional responsibility and the professional ethics decries such practice. It was further reiterated that it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. That apart, the Courts should also constantly endeavour to follow such a time schedule so that the purpose of amendments brought in the Code of Civil Procedure are not defeated.

Quoting the saying of Gita “Awake! Arise! Oh Partha” for guidance of trial courts, the Court said that in the cases where the Judges are little proactive and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation and it is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further. The Court, hence, directed the defendant to deposit Rs, 50, 000 to the State Legal Service Authority, Karnataka within 8 weeks of this order and it was further made clear that if the amount is not deposited, the right of defence to examine its witnesses shall stand foreclosed. [Gayathri v. M. Girish, 2016 SCC OnLine SC 744, decided on 27.07.2016]