Case BriefsForeign Courts

Supreme Court of Uganda: The Full Bench of Katureebe, CJ., Arach-Amoko, Mwangusya, Opio-Aweri, Tibatemwa-Ekirikubinza, and Mugamba, JJ SC; and Tumwesigye, AG JSC upheld a Constitutional Amendment which negated age bar for the President and Local Council V Chairpersons.

The Constitutional Court headed by Owiny-Dollo, DCJ. had declared that the Constitutional (Amendment) Act No. 1 of 2018 which removed the age limit for the President and Local Council V Chairperson as lawful. The Appellants,

The Court referred to various judgments passed by the Courts of different countries on the basic-structure doctrine and thereby, referred to the landmark judgment by the Supreme Court of India, Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. Quoting the judgment, the Court stated: “According to the doctrine, the amendment power of Parliament is not unlimited; it does not include the power to abrogate or change the identity of the constitution or its basic features.” The Court stated on the judge-made principle that a country’s Constitution has certain basic features that cannot be amended by its legislative body. The Court also stated that “while Parliament has wide powers to amend the Constitution, it did not have the power to destroy or emasculate the basic elements or fundamental features of the Constitution. The Supreme Court declared that the basic structure or features of the Constitution rest on the basic foundation of the Constitution. The basic foundation of the Constitution is the dignity and the freedom of its citizens which is of supreme importance and cannot be destroyed by any legislation made by the Parliament.”

The Court quoted Minerva Mills v. UOI, (1980) 3 SCC 625 as well, stating that Parliament has no power to repeal, abrogate or destroy basic or essential features of a constitution. It reinstated that the Supreme Court of India, in this case, had also stated that any particular feature of the Constitution being “basic” or not, shall be determined with the subject matter of each case.

Thereafter, the Court revisited the Preamble and various Articles of the Constitution of Uganda, 1995 to refer to the doctrine embedded in the Preamble and Articles itself. It stated that Article 1(2) envisages the core principle of governance that the people shall be governed through their “will and consent”. It emphasised that Article 1(3) puts forth the Constitution is the source of “all power and authority of the Government and its organs” and noted that the Constitution derives its powers from the people itself. The Court opined that this is one of the first pillars on the basic structure of the Constitution apart from the Preamble. The Chief Justice equated the doctrine as a “family house” whereby the basic structure doctrine should be the root or the strong foundation for the house, where the roof could constitute of any material or colour, and “if the wind blew away part or all of the roof, the basic structure should remain and the next day the family can put the roof. But if the weight-bearing pillars were undermined or removed, the whole structure would collapse.” It reinstated a position held in a previous judgment stating that, there are certain features, inherent to the Constitution and not stated explicitly but such features form an important part of the Constitution.

Upon deciding the issue of the Amendment, the Court used the abovementioned analogy and questioned: “whether the effect of the above said amendment was to the strong pillars, to the weight-bearing walls, or to the roof in as far as the 1995 Constitutional structure was concerned?“

 The Court upheld the Amendment and put forth in consonance to the analogy provided hereinabove that “the restriction on age may be a roof or shutter on a house; very important on the house but capable of being altered without changing the basic structure of the particular house\ It is not a foundation or a strong pillar on the house which, if changed, would lead to the collapse of the house.” It stated that this amendment merely increased the spectrum of the people’s choice and did not restrict it thus not violating the basic structure.

The Judgment also provided various examples of other countries whereby a Prime Minister or President was re-elected despite not confirming to the age stipulations provided. It was the people’s choice which preceded such stipulations. The Majority upheld the decision of the Constitutional Court and discarded any such contentions of the violation of the basic structure of the constitution. [Male H. Mabirizi K. Kiwanuka v. Attorney General, 2018 SCC OnLine UGSC 33, decided on 18-04-2019]

Legislation UpdatesStatutes/Bills/Ordinances

THE AADHAAR AND OTHER LAWS (AMENDMENT) ORDINANCE, 2019
No. 9 of 2019

Promulgated by the President in-the-Seventieth Year of the Republic of India.

An Ordinance to amend the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 and further to amend the Indian Telegraph Act, 1885 and the Prevention of Money-laundering Act, 2002.

WHEREAS the Aadhaar and Other Laws (Amendment) Bill, 2019 was passed by the House of the People on the 4th day of January, 2019 and is pending in the Council of States;

AND WHEREAS Parliament is not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action;

Now, THEREFORE, in exercise of the powers conferred by clause (1) of Article 123 of the Constitution, the President is pleased to promulgate the following Ordinance:-

PART I

PRELIMINARY

  1. (1) This Ordinance may be called the Aadhaar and Other Laws (Amendment) Ordinance, 2019.
    (2) It shall come into force at once.


Please follow the link for detailed notification: NOTIFICATION

Ministry of Law and Justice

Legislation UpdatesStatutes/Bills/Ordinances

The President of India on the 21-02-2019 has promulgated the following four Ordinances, namely:––

1. The Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019 (Ord. 4 of 2019).

2. The Indian Medical Council (Amendment) Second Ordinance, 2019 (Ord. 5 of 2019).

3. The Companies (Amendment) Second Ordinance, 2019 (Ord. 6 of 2019).

4. The Banning of Unregulated Deposit Schemes Ordinance, 2019 (Ord. 7 of 2019).

The Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019 has been promulgated to give continued effect to the provisions brought in by the Muslim Women (Protection of Rights on Marriage) Ordinance, 2019. This Ordinance, inter alia, declares the practice of triple talaq to be void and illegal and also to make it an offence punishable with imprisonment up to three years and fine.

The Ordinance will protect the rights of married Muslim women and deter the practice of divorce by triple talaq (i.e., talaq –e –biddat). It also provide for payment of subsistence allowance and custody of minor children.

The Indian Medical Council (Amendment) Second Ordinance, 2019 has been promulgated to give continued effect to the work already done by the Board of Governors (BOG) as per the provisions of earlier Ordinance. This Ordinance, inter alia, enables the Board of Governors appointed in supersession of the Medical Council of India (MCI) to continue to exercise the powers of MCI for a period of two years or till the Council is reconstituted, whichever is earlier so as to ensure transparency, accountability and quality in the governance of medical education in the country.

In pursuance of the Government’s objective of providing Ease of Doing Business to Law abiding corporate while simultaneously strengthening the corporate governance and compliance framework enshrined in the Companies Act, 2013, the Companies (Amendment) Second Ordinance, 2019 has been promulgated with a view, to empower the Central Government to allow certain companies to have a different financial year instead of as determined by the Tribunal. This Ordinance, inter alia, addresses the need to impose civil liability for technical and procedural defaults of a minor nature and to plug the corporate governance and enforcement framework, through the following: (i) re-categorisation of 16 minor offences as civil defaults which will de-clog special courts; (ii) transfer of certain routine functions such as permitting conversion of a public company into a private company from NCLT to the Central Government; (iii) making non-maintenance of registered office and non-reporting of commencement of business as grounds for striking of from register of companies; and (iv) breach of ceiling on Directorships being made a ground for disqualification; (vi) Enhancing the pecuniary jurisdiction of Regional Director’s for compounding offences under the Companies Act with a view to unburdening the NCLT of routine functions etc.

The Banning of Unregulated Deposit Schemes Ordinance, 2019 has been promulgated to have a central legislation to tackle the menace of illicit deposits taking activities in the country. Presently, non-banking entities are allowed to raise deposits from the public under the provisions of various statutes enacted by the Central Government and State Governments. However, the regulatory framework for deposit-taking activity in the country is not seamless. Despite such diverse regulatory framework, schemes and arrangements leading to unauthorised collection of money and deposits fraudulently by inducing the public to invest in uncertain schemes promising high returns or other benefits are still operating in the society.

This Ordinance, therefore, ensures a comprehensive ban on unregulated deposit-taking activity and for its effective enforcement. It aims to prevent such unregulated deposit schemes or arrangements at their inception and at the same time makes soliciting, inviting or accepting deposits pursuant to an unregulated deposited scheme as a punishable offence. The said Ordinance also seeks to put in place a mechanism by which the depositors can be repaid without delay by attaching the assets of the defaulting establishments.

[Source: PIB]

Ministry Of Law & Justice

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of V. Chitambaresh and R. Narayana Pisharadi, JJ. allowed a writ appeal challenging imposition of exemplary costs for the sole reason that the bank was not represented by its Secretary.

The appellant herein had filed a writ petition under Kerala Co-operative Societies Act, 1969 challenging the Electoral Officer’s refusal to accept list of members eligible to vote. Since the bank’s Secretary had some physical disability, the President of appellant bank was authorised to file the petition. When it was pointed out that there was no written resolution of the Managing Committee in this regard, the President sought permission to withdraw the petition to enable a properly framed writ petition to be filed by the Secretary representing the bank. However, the learned Single Judge declined the same and dismissed the petition imposing cost of Rs 25,000. Aggrieved thereby, the present writ appeal was filed.

The Court opined that while a co-operative bank or a society must normally be represented by its Secretary as stated in its bye-laws, the President who is duly elected by the members of the Managing Committee of bank stands on a better pedestal than any other member even without a resolution. He can maintain a writ petition in his personal capacity as he is the head of ‘committee’ under Section 2(e) of the Act. Further, absence of resolution empowering the President is a curable defect.

Reliance was also placed on the judgment in Ashok Kumar Mittal v. Ram Kumar Gupta, (2009) 2 SCC 656 where it was held that costs should not be imposed to create a corpus for the State Legal Services Authority. 

In view of the above, the impugned order was set aside.[Thelliyoor Service Co-Operative Bank Ltd. v. State Co-Operative Election Commission, 2018 SCC OnLine Ker 7418, decided on 20-12-2018]

Case BriefsForeign Courts

“Rule of Law dictates that every act that is not sanctioned by the law and every act that violates the law be struck down as illegal.”

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Seven-Judge Bench comprising of H.N.J. Perera, CJ and Buwaneka Aluwihare, Sisira J. De Abrew, Priyantha Jayawardena, Prasanna Jayawardena, Vijith K. Malalgoda and Murdu N. B. Fernando, JJ. hearing a batch of fundamental right applications, unanimously held President Maithripala Sirisena’s November 2018 decision to the Parliament and hold snap elections as unconstitutional, thus ending a seven-week long constitutional crisis.

The island nation had been reeling under political crisis which began on October 26, 2018, when President Sirisena fired Prime Minister Ranil Wickremesinghe and replaced him with Mahinda Rajapaksa, a controversial former President accused of committing serious war crimes. However, when Rajapaksa could not muster a majority in Parliament, Sirisena sacked the legislature two years ahead of schedule.

In the instant petition, Petitioner, a member of the Parliament, prayed for a declaration that President Sirisena’s proclamation dated 09-11-2018 suspending the Parliament infringed his fundamental rights under Article 12(1) of the Constitution of Sri Lanka. It was contended that the said action was ex facie unlawful and in violation of Article 70 (1) of the Constitution as per which the President expressly prohibited from dissolving Parliament until the expiration of a period not less than four years and six months from the date appointed for its first meeting.

The respondent raised an objection as to the jurisdiction of Court to hear the petitions on the ground that the petitioners had not followed the specific procedure to challenge the abuse of powers by the President, viz., impeachment. The said objection was dismissed for being logically flawed as in view of dissolution, no Parliament existed in which a motion for impeachment could have been brought.

The argument regarding immunity to President’s action was dismissed stating that “the submission that…..President, in his capacity as the Head of State, has a species of inherent unrestricted omnipotent power which is akin to royal prerogative power held by a monarch, has to be emphatically rejected.”

The Court held that President’s power of summoning, proroguing and dissolving Parliament referred to in Article 33(2)(c) of the Constitution could be exercised only in conformity with Article 70 of the Constitution. Article 70 clearly stipulated that the President shall not dissolve Parliament during the first four and a half years from the date of its first meeting unless he is requested to do so by a resolution passed by not less than two-thirds of the members of Parliament.

In view of the above, it was held that the impugned proclamation had been issued outside legal limits and violated petitioner’s rights, both in his capacity as a parliamentarian and in the capacity of a citizen. As such, the proclamation was quashed and declared void ab initio.[Rajavarothiam Sampanthan v. Attorney General, 2018 SCC OnLine SL SC 74, decided on 13-12-2018]

Appointments & TransfersNews

European Patent Office: António Campinos was appointed as the president of European Patent Office (EPO) on 02-07-2018 succeeding Benoît Battistelli, for a term of five years.

About EPO:

European Patent office is one of the largest public service institutions in Europe. It has been headquartered in Munich. The aim of EPO is strengthening co-operation on patents in Europe. Through the EPO’s centralised patent granting procedure, inventors are able to obtain high-quality patent protection in up to 44 countries, covering a market of some 700 million people. The EPO is also the world’s leading authority in patent information and patent searching.

[Press Release]

European Patent Office

Hot Off The PressNews

Delhi High Court: The Division Bench comprising of ACJ Gita Mittal and C Hari Shankar J., decided in a petition filed by an activist group ‘Nyayabhoomi’ that every vehicle in Delhi has to comply with the Motor Vehicles Act, 1988.

In a move to eradicate the VVIP culture, the Delhi High Court issued that all the VVIP ’s including the President, Vice-President, Governor’s and Lt. Governor should get number plates on their cars. No exception has been laid own for the same, as till now the cars of President, Vice-President, and other Constitutional authorities had only the state emblem of India in place of the number plates.

The High Court has directed the Centre and the Delhi Government to ensure that all official cars used by them should get registered at the earliest.

[Source: Financial Express]

Appointments & TransfersNews

The Central Government appointed Justice R.K. Agrawal (retired Judge of Supreme Court) as President of National Consumer Disputes Redressal Commission (NCDRC) w.e.f. date of joining the post, till attaining 70 years of age, i.e., on 04.05.2023. The appointment was in exercise of powers conferred by Section 22 E of Consumer Protection Act, 1986 read with Rule 4 and item No. (A) of column (4) of Sl. No. 16 of the Schedule of the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members), Rules, 2017 along with approval of the Appointments Committee of the Cabinet, conveyed by Department of Personnel and Training.

[F. No. J-1/4/2017-CPU – S.O. 2942(E)]

Ministry of Consumer Affairs, Food & Public Distribution

Hot Off The PressNews

On 24.07.2017, it was notified that the Constitution Bench will not be sitting on 25.07.2017 in the light of the swearing in ceremony of the newly elected President. President-elect Ram Nath Kovind will be sworn in as the 14th President of India by the Chief Justice of India, Justice Jagdish singh Khehar and all the Courts will sit after the conclusion of the ceremony i.e. post-lunch.

The 9-judge constitution bench that is scheduled to hear the submissions of the Union of India will resume sitting on 26.07.2017.  Petitioners have already concluded there arguments.

Click here to read the 12 point cheat sheet to all that has happened in the case till date.

Hot Off The PressNews

Supreme Court Registrar refused to list Justice C.S. Karnan’s plea for recall of the order awarding him 6 months imprisonment for contempt of court. The Registrar noticed that the proceedings before the 7-judge bench were decided on merits and after due consideration, it was held that Justice C S Karnan had committed contempt of the gravest nature resulting in finding of guilt and was sentenced to an imprisonment of six months. The said findings have since attained finality, hence, the present writ petition is not maintainable. The relief if any lies some where else.

In plea filed by his lawyer Mathews J Nedumpara, Justice Karnan said that under the constitutional scheme, High Courts are not subordinate to the Supreme Court; High Courts are as much independent as the Supreme Court is, though their orders could be judicially challenged in the Supreme Court, the latter being a Court of Appeal and hence, he could not be held guilty of contempt of court. He said that the Contempt of Courts Act was a cathartic jurisprudence which belonged to the Dark Ages, the era of inquisition and torture, distinct from the classical Roman Law which constitutes the foundation of the modern jurisprudence.

After Supreme Court’s refusal to hear the plea, his lawyers had claimed that a representation has been made to the President seeking suspension of the Supreme Court order sentencing him to six months imprisonment for contempt of court under Article 72 of the Constitution. However, the President’s office said that it was not aware of any such representation.

Source: PTI

New releasesNews

On 22.02.2017, Prime Minister Narendra Modi released the book “Judicial Reforms: Recent Global Trends” published by EBC in association with IIFL and presented the first copy to President Pranab Mukherjee at the Rashtrapati Bhawan.

In his address, the Prime Minister said that efficient Governance can lessen the burden of the judiciary. The President Shri Pranab Mukherjee said that adequate court rooms, infrastructure, to utilise modern facility and adequate number of judges are important for judicial reform. He also added our judicial system established decades ago require major changes. Reform is a continuous process. It cannot be stop and go. Every system develops clogs. There is need for constant change. Justice Dalveer Bhandari has done useful work to ignite the thinking process of the nation on the subject of judicial reforms. It is high time for everyone to not just think but also act on judicial reforms.

The event was presided over by the Chief Justice of India, Justice Jagdish Singh Khehar, the Finance Minister, Shri Arun Jaitley, Law and Justice Minister, Shri Ravi Shankar Prasad,  along with others dignitaries, .

The book is compilation of essays written by eminent persons on Judicial Reforms. These were delivered at a conference on Judicial Reforms, which was inaugurated by the President of India. They have been compiled and edited under the stewardship of Justice Dalveer Bhandari, Judge of the International Court of Justice and the President of the Indian International Law Foundation (IIFL).

Topics discussed include The Evolution of our Profession Globally, Access to Justice: Preventing Court Delays, Judicial Education, Achieving Accountability in Judicial Appointments Through Creation of a National Judicial Commission: A Democratic Aspiration, Can Judicial Reforms be a Panacea, Engagement of Domestic Courts in International Law, The Changing Hong Kong Legal Scene, Trends in Civil Justice Reform: A Canadian Perspective and Judicial Reforms and Society.

The book contains thought provoking insights by:

  • Dr. Justice Dalveer Bhandari, Judge, International Court of Justice
  • Justice P. Sathasivam, Judge, Supreme Court of India
  • Justice S. Ravindra Bhat, Judge, Delhi High Court
  • Mr T.R. Andhyarujina, Senior Advocate, Supreme Court of India
  • Mr Geraint Hughes, Partner, Clifford Chance, Singapore
  • Mr Arvind P. Datar, Senior Advocate
  • Dr. Arun Mohan, Senior Advocate
  • Prof. (Dr.) C. Raj Kumar, Vice Chancellor, O.P Jindal Global University
  • Justice A.P. Shah, Former Chief Justice, Delhi High Court
  • Prof. Ranbir Singh, Vice Chancellor, National Law University, Delhi
  • Mr Sanjay Singh, Secretary, Minister of External Affairs, Government of India
  • Mr Arun Nigam, Managing Partner, Arun Nigam & Partners, Sidley Austin, Hong Kong
  • Prof. Poonam Puri, Associate Dean, Osgoode Hall Law School, York University
  • Mr C.S. Lodha, Advocate
  • Mr Bishwajit Bhattacharyya, Senior Advocate, Supreme Court of India
  • Mr Raju Ramachandran, Senior Advocate, Supreme Court of India

Justice S.A. Bobde, Judge, Supreme Court of India, Justice Vikramjit Sen, former Judge, Supreme Court of India and Mr Fali Nariman, Senior Advocate are the Vice-Presidents of IIFL.

 

The book can be purchased from here.

The full video of the event at Rashtrapati Bhavan can be viewed here:

Case BriefsSupreme Court

Supreme Court: In the writ petition relating to appointment of constitutional authorities where the President of India was made the first respondent, the Court said that despite the decision of the constitutional bench in Rameshwar Prasad v. Union of India, (2006) 2 SCC 1 where it was clearly held that the President of India cannot be arrayed as a party to the litigation, the petitioners being emboldened by some kind of imaginative faculty have described the President as a Respondent.

The petitioners had sought issue of a quo warranto declaring that one of the respondents is not eligible to hold the constitutional post or alternatively issue a writ of mandamus not to continue on the post in question, the Court said that the writ petition preferred under Article 32 of the Constitution is absolutely the product of disgruntled minds obsessed with their own litigation. Their individual grievances do not confer any right on them to file a writ petition of the present nature. It is an assault on the Constitution, more so, when the high constitutional authorities are involved. No litigant can be permitted to browbeat or malign the system. This is essential for maintaining the integrity of the institution and the public confidence in the delivery of justice. It is sheer malice. The question of issuance of any kind of writ does not arise.

The bench of Dipak Misra and R. Banumathi, JJ further directed that in future the petitioners shall be debarred from filing any kind of public interest litigation in any constitutional court and none of their petition under Article 226 or Article 32 of the Constitution shall be entertained unless they are personally grieved. [Anindita v. Pranab Kumar Mukherjee, 2017 SCC OnLine SC 71, decided on 30.01.2017]