Case BriefsForeign Courts

Supreme Court of Canada: While deciding the issues of constitutional validity of Genetic Non-Discrimination Act, S.C. 2017 criminalising compulsory genetic testing and non-voluntary use or disclosure of genetic test results in context of wide range of activities and Parliament’s jurisdiction over criminal law; a 9 Judge Bench of the Court with a ratio of 5:4 upheld the constitutionality of the 2017 Act, observing that Parliament has the power to criminalise actions such as forced genetic testing or disclosure of a person’s existing genetic test results as a condition of obtaining access to goods, services and contracts.

The Canadian Parliament enacted the Genetic Non-Discrimination Act, 2017 with the objective of establishing prohibitions relating to genetic tests. As per the legislation,  individuals and corporations cannot force people to take genetic tests or disclose genetic test results as a condition of obtaining access to goods, services and contracts; cannot refuse an individual access to goods, services and contracts because they have refused to take a genetic test or  disclose the results of a genetic test; and cannot use individuals’ genetic test results without their written consent in the areas of contracting and the provision of goods and services. The Legislation also amended the Canadian Human Rights Act to add genetic characteristics as a prohibited ground of discrimination. The Government of Quebec objected on the ground that Sections 1 to 7 of the 2017 Act exceeded Parliament’s authority over criminal law under Section 91(27) of the Constitution Act, 1867.

The majority comprising of Karakatsanis, Abella, Martin, Moldaver and Côté, JJ., looked into the pith and substance of the legislation in question. They observed that while determining whether a law falls within the authority of Parliament/ Provincial Legislature, a Court must first characterize the law and then, based on that characterization, classify the law by reference to the federal and provincial heads of power under the Constitution. The title of the Act and the text of the prohibitions provide strong evidence of objective of combatting genetic discrimination and the fear of genetic discrimination based on the results of genetic tests. The provisions of the Act do not target a particular activity or industry, but instead targets the conduct that enables genetic discrimination. It was further observed that Section 91(27) of the Constitution Act, 1867, gives Parliament the exclusive authority to make laws in relation to the criminal law. The majority noted that, “the essential character of the prohibitions in the 2017 Act represents the Parliament’s response to the risk of harm that the prohibited conduct i.e. genetic discrimination and the fear of genetic discrimination based on genetic test results pose to several public interests traditionally protected by the criminal law- autonomy, privacy, equality and public health”. Genetic discrimination threatens the fundamental social value of equality by stigmatizing and imposing adverse treatment on individuals because of their inherited, immutable genetic characteristics. Thus in pith and substance, the Legislation is a response to the risk of harm that the prohibited conduct and discrimination based on genetic test results, pose to autonomy, privacy and equality. The dissenting opinion was delivered by Wagner C.J. and Brown, Rowe and Kasirer JJ. [Canadian Coalition for Genetic Fairness v. Attorney General of Canada, 2020 SCC 17, decided on 10-07-2020]

Case BriefsForeign Courts

European Court of Human Rights (ECHR): A Three- Judge Bench of Krzysztof Wojtyczek (President) and Armen Harutyunyan, Pere Pastor Vilanova dismissed the application of the complainant calling it “manifestly ill-founded”.

The congregation of the ‘True Orthodox Christians’ appropriated a public green space belonging to the Greek national navy and transformed it into a place of worship in September 2016. However, the police evacuated the premises for the purposes of constructing the Athens Mosque in November 2016. In December 2016, Ms. Pantelidou and other adherents of the group brought an action for annulment for the construction of the mosque, but their case was dismissed by the Council of State. The church was finally demolished in August 2018.

Pantelidou lodged an application with the European Court of Human Rights on 04-07-2019 complaining infringement of her right as secured under Article 9 (right to freedom of thought, conscience and religion), considering that she had been prevented from acceding to her place of worship.

In its decision, the Council of State had pointed out that the “True Orthodox Christians” church was installed and operating in a publicly-owned area, in a building which had been erected by the Greek National Navy, and that those premises had been arbitrarily occupied by persons unknown between June and September 2016. Furthermore, some of the National Navy installations had already been expropriated by the State with a view to building the Athens Mosque, in accordance with the law. Work had already started on the Mosque when the building had been converted into a church by the congregation in question, in breach of the provisions governing the urban planning status of the neighbourhood. The Court ruled that the public interest of rational urban development could not be superseded by the liturgical needs of a religious community that had arbitrarily encroached on the public sphere in order to establish and operate a place of worship inconsistent with the urban development plan. Consequently, having regard to the margin of appreciation enjoyed by States in the area of urban planning and development, the Court held that the impugned measure had been justified in principle and been proportionate to the aim being pursued. [Pantelidou v. Greece, Application No. 36267 of 19, decided on 10-10-2019]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Arun Mishra, MR Shah and BR Gavai, JJ has held that by invoking the doctrine of promissory estoppel, the Union of India cannot be estopped from withdrawing the exemption from payment of Excise Duty in respect of certain products, which exemption is granted by an earlier notification; when the  Union of India finds that such a withdrawal is necessary in the public interest. The bench said that the larger public interest would outweigh an individual loss, if any.

In the present case the withdrawal of the exemption to the pan masala with tobacco and pan masala sans tobacco in the State of Assam was under challenge before the Court. The Court, however, said that it had no hesitation to hold that the withdrawal of the exemption to the pan masala with tobacco and pan masala sans tobacco is in the larger public interest. As such, the doctrine of promissory estoppel could not have been invoked in the present matter.

Noticing that by a scientific research conducted by Experts in the field, it has been found that the consumption of pan masala with tobacco as well as pan masala sans tobacco is hazardous to health and that the percentage of teenagers consuming the hazardous product was very high and as such exposing a large chunk of young population of this Country to the risk of oral cancer, the Court said,

“if the State has decided to withdraw the exemption granted for manufacture of such products, we fail to understand as to how it can be said to be not in the public interest.”

The Sikkim High Court had observed that the appellant herein has been unable to establish any overriding public interest, which would make the doctrine of promissory estoppel inapplicable. It has further observed that, the pan masala has not been declared as hazardous to health by any notification or order of the Government of India or the State Government. It found that, no material or scientific report had been placed on record to demonstrate that the pan masala is a health hazard. The Supreme Court, however, held that the reasoning arrived at by the Sikkim High Court was totally erroneous.

The Court said that the legislative policy as reflected in Section 154 of the Finance Act was to withdraw the exemption granted to the manufacturers of cigarettes as well as pan masala with tobacco and that too with retrospective effect. Apart from the fact that, it is a common knowledge that tobacco is highly hazardous, the legislative intent was also unambiguous. It, hence, said,

“In these circumstances, the finding of the High Court that the withdrawal of exemption for tobacco products was not in the public interest, to say the least is shocking.”

[Union of India v. Unicorn Industries, 2019 SCC OnLine SC 1231, decided on 19.09.2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J. quashed the proceedings under Kerala Police Act, 2011 against the petitioner by invoking the power under Section 482 of the Code of Criminal Procedure, 1973.

The facts of the case were that the Sub Inspector found petitioner making obscene gestures having sexual flavors, degrading the dignity of the women who were passing through the road. The Sub Inspector arrested the petitioner from the spot. The report was thus made after investigation, on which the petition was filed to quash the present application.

Sri. P. Rahul, learned counsel for the petitioner after completion of the investigation urged for the quashing of the proceedings on the ground that there was a lacuna in the investigation process and the police officer who detected the offence himself conducted the investigation thereby causing the prejudice to the petitioner. It was submitted that no woman was questioned by the police and civil police were cited as the witness to prove the incident. It was further submitted that the final report does not reveal the petitioner has committed any act punishable under Section 119(1)(a) of the Kerala Police Act, 2011.

Sheeba K.K., Public Prosecutor opposed the quashing of the petition on the ground that the offence alleged involves public interest and thus should not be quashed.

The Court held that the grounds alleged by the petitioner for quashing the present petition were not fatal to the prosecution case against the petitioner as there was no mandate that the act was to be done against the particular woman. Although on the ground that in the statement made in FIR and final report there was no disclosure by the two civil police officer of what was the obscene or sexual gesture or act performed by the petitioner which was necessary as the petitioner cannot be made guessing what is the specific allegation against him, the court decided to quash the proceedings. The court further directed  that complaint or the first information report, as the case may be, shall contain recital as to the specific gesture or act performed by the accused, which according to the prosecution, was degrading to the dignity of women and which would attract the offence under Section 119(1)(a) of the Act.[Arun v. State of Kerala, 2019 SCC OnLine Ker 1623, decided on 22-05-2019]

Case BriefsHigh Courts

Allahabad High Court: This Public Interest Litigation was filed before Division Bench of Govind Mathur and Yogendra Kumar Srivastava, JJ., challenging the Notification issued by the State Government under Section 6 (2) of the U.P. Revenue Code, 2006 whereby name of the existing district of “Allahabad” was changed to “Prayagraj” and the resolution passed by Municipal Corporation where it was resolved to forward a proposal to the State Government for alteration of name.

Petitioner contended that the alteration of the name of the district was not in accordance with the scheme as provided under the Code and no reason with respect to administrative efficiency or in public interest can be seen thereby it violates Code, 2006 and Rules thereunder.

High Court viewed alteration of name was clearly a policy decision of the State Government as there are references of the site by the name of ‘Prayag’ at the confluence of rivers Ganga and Yamuna, as a major centre of culture and pilgrimage from the ancient times. The reference of this name can also be seen in the travel accounts of various foreign travelers. Court observed that petitioner had failed to bring any material to show that State Government’s decision was unreasonable, arbitrary or based on irrelevant considered as no constitutional and statutory provision were violated which could be brought within the scope of judicial review. Further, nothing was shown to see that public interest was affected by a mere change of name. Therefore, this writ petition filed as PIL was dismissed. [Allahabad Heritage Society v. State of U.P., PIL No. 4717 of 2018, decided on 26-02-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Sindhu Sharma, J., dismissed the petition seeking relief against the order of a premature transfer.

The facts of the case are that the petitioner filed this petition against his transfer from the post of Assistant Accounts Officer, PHE Procurement Division, Jammu to the post of Assistant Accounts Officer, State Information Commission against available vacancy.

The contention of the petitioner was that he was holding the present position from 07-10-2016 and was prematurely transferred which was contrary to the Transfer Policy issued vide a Government Order and as such said transfer was liable to be quashed on the ground that every transfer is required to be processed in accordance with the provisions of the Jammu and Kashmir Government Business Rules and the Transfer Policy.

Placing reliance on the case of Syed Hilal Ahmed v. State of J&K, 2015 (3) JKJ 398 (HC), it was held that transfer is an incidence of service. The Government Order was mere guidelines and had no statutory force. Moreover, the above-said order clearly permitted transfer in public interest or in the interest of administration.

The petition was thus dismissed. [Nasib Singh v. State, 2018 SCC OnLine J&K 1038, Decided on 31-12-2018]

Case BriefsForeign Courts

United Kingdom Supreme Court: A Five Judge Bench comprising of Lord Wilson, Lord Carnwath, Lord Hughes, Lady Black and Lord Lloyd-Jones, JJ. inferred the meaning of financially independent which means “not financially dependent upon the state”.

The appellant was residing in United Kingdom with her friend who she took care of due to medical conditions in lieu of which the appellant was provided free boarding and lodging. She resided there with leave as a student for three months and was granted further leave on 12 occasions some of which were made after the previous leave expired. After her final grant failed, the appellant applied twice but failed.

She pleaded on the context of Article 8 of the European Convention on Human Rights requesting the court to respect her private life that she has now established in the UK. Her plea was rejected due to the fact that her life was established in the UK even when she knew that her continued stay would be dependent upon a further grant of leave also it was against the public interest that she was financially dependent upon her friend and father. Hence, she preferred the appeal.

The Supreme Court questioned the fact as to why would the financial dependence of the appellant be against the interests of the economic well-being of the United Kingdom and that in case of a cessation of a person’s employment the consequences would be more or less the same. Plus if consequently under Article 8 the claimant loses the financial independence then public interest may help to justify the interference with their right to respect for their private or family life in the UK. Accordingly, the appeal was allowed.[Rhuppiah v. Secretary of State for the Home Department, [2018] 1 WLR 5536, decided on 14-11-2018]

Hot Off The PressNews

Supreme Court: The Bench comprising of Arun Mishra and S Abdul Nazeer, JJ., while addressing a matter, stated that “voluntary retirement” cannot be sought as a right and the government can frame rules to deny pleas for quitting on a premature basis in public interest.

The Supreme Court Bench while upholding the Uttar Pradesh government’s decision of rejecting the request for voluntary retirement of some senior doctors stated that due to the shortage in the number of specialised doctors in government hospitals and looking at the public interest the decision of the State on the stated grounds is justified.

Further, the Supreme Court Bench while concluding its decision stated that the concept of public interest can also be invoked by the government when voluntary retirement sought by an employee would be against public interest. Poorest of the poor obtain treatment at government hospitals. They cannot be put at peril. The bench had come to the above conclusion, when the doctors had claimed the right to retire under Part III of the Constitution, for which the Court stated that such right cannot be supreme than Right to Life.

[Source: The Times of India]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): CIC has observed that leave records of other employees cannot be declared unless the applicant shows the involvement of a larger public interest. In this case, the appellant filed RTI application seeking leave records of a certain duration of all the executives working under Director (HR) and Director (CM).

The Commission observed that such information cannot be provided to the third party in terms of Supreme Court’s judgments in Canara Bank Rep. by its Deputy Gen. Manager v. C.S. Shyam, (2018) 11 SCC 426, Girish Ramchandra Deshpande v. Central Information Commissioner, (2013) 1 SCC 212 and R.K. Jain v. Union of India, (2013) 14 SCC 794. The Apex Court had held in these cases that information relating to the personal details of individual employee such as the date of his/her joining, designation, details of promotion earned, date of his/her joining to the Branch where he/she is posted, the authorities who issued the transfer orders, etc. cannot be provided in view of exception laid down under Section 8(j) of the RTI Act unless the applicant discloses any larger public interest involved in seeking such information of the individual employee.

The Commission applied the same test in this appeal and concluded that no intervention was required by it as the appellant failed to show the involvement of larger public interest in seeking leave records of other employees. [Love Gogia v. Central Public Information Officer, BSNL, Appeal No. CIC/BSNLD/A/2018/613653, order dated 26-06-2018]

Case BriefsHigh Courts

Allahabad High Court: In a recent judgment passed by the Division Bench comprising of Dr. Devendra Kumar Arora and Rajnish Kumar JJ., in regard of the orders given by the State Government with respect to applications of voluntary retirement were disposed of.

The aggrieved petitioners were members of the Provincial Medical Services (PMS), and had applied for voluntary retirement, but their petitions were rejected on the basis of scarcity of doctors in the State. As per the criteria enumerated under Fundamental Rules 56(c) of the Financial Handbook, voluntary retirement can be stopped only if the  individual concerned is at a premature age, or is subject to some disciplinary proceeding. In the accumulated writ petitions of this case, all the conditions were fulfilled, and all the four petitioners were rejected on the grounds of poor medical conditions in the State.

Reliance was placed on the landmark judgments in Dinesh Chandra Sangma v. State of Assam, (1977) 4 SCC 441, Union of India v. Sayed Muzaffer Mir, 1995 Supp (1) SCC 76 : AIR 1995 SC 176 and Dr Anil Dewan v. State of Punjab, CWP No.9455 of 2008, which unanimously concluded that the State could not interpret the rule on its own convenience and that voluntary retirement was a right which could not be infringed. Hence, the previous order was quashed and retirement was granted to the petitioners. [Dr. Achal Singh v. State of U.P., Service Bench No. 14939 of 2017, decided on 29-11-2017)

Case BriefsSupreme Court

Supreme Court: Refusing to interfere with the principle of capping adopted in the Notice Inviting Application-2015 (NIA) for allocation of spectrums in various areas, the Court said that the condition to put a cap and make a classification not allowing certain entities to bid is not an arbitrary one as it is based on the acceptable rationale of serving the cause of public interest. It was further said that in the matters relating to complex auction procedure having enormous financial ramification, interference by the Courts based upon any perception which is thought to be wise or assumed to be fair can lead to a situation which is not warrantable and may have unforeseen adverse impact.

The petitioners had argued that the NIA had stipulated capping and simultaneously allowed certain categories to bid for a lesser quantum to which the respondents had responded that the reason behind the same was that a minimum spectrum is determined to enhance the efficiency and capability of the service providers so that the arrangement can be beneficial to the consumers and they can avail requisite benefit and have better service. The licensees who do not have the specific quantum can bid for the balance so that the efficiency of service is enhanced. Accepting the reasoning of the respondents, the Court said that if a minimum is provided for a particular area or zone having regard to the necessity and the interest of the consumers, it subserves the larger public interest. The said stipulation might have affected the individual interest of certain categories of licensees or aspirants but that cannot weigh over the public interest.

Regarding the contention that some bidders have not been allowed to participate in respect of certain areas, the bench of Dipak Misra and P.C.Pant, JJ said that it has been done to curtail the monopoly and to encourage a broad based competition and further to allow certain entities who do not have the adequate spectrum so that there is augmentation of revenue as well as enhancement of efficiency in providing the service. It is a policy decision which subserves the consumers’ interest and it is extremely difficult to say that the decision to conduct the auction in such a manner can be considered to be mala fide or based on extraneous considerations. [Reliance Telecom Ltd. v. Union of India, 2017 SCC OnLine SC 36, decided on 12.01.2017]

Case BriefsSupreme Court

Supreme Court: Dismissing the petition filed by former Supreme Court judge Markandey Katju against the resolutions passed by Rajya Sabha and Lok Sabha condemning the statements made by him in Facebook posts where he termed Mahatma Gandhi a British Agent and Netaji Subhash Chandra Bose an agent of Japanese fascism, the Court said that for the free functioning of Houses of Parliament or Legislatures of State, the representatives of people must be free to discuss and debate any issues or questions concerning general public interest. It is entirely left to the discretion of the Presiding Officer to permit discussion so long as it is within the confines of Rules of Procedure.

The Court explained that as far as debates or discussion in the Houses of Parliament are concerned, the only substantive restriction found in the Constitution is in Article 121 of the Constitution which specifically mandates that no discussion shall take place in Parliament in respect of the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. Barring such provision under Article 121, the Constitution has placed no restriction on what can be debated or discussed in Parliament. It is completely left to the wisdom or discretion of the individual Houses and the presiding authorities in terms of the Rules of Procedure of each House.

The 3-judge bench of T.S. Thakur, CJ and R. Banumathi and U.U. Lalit, JJ noticed that both the resolutions made reference to the offices held by the petitioner as a Judge of this Court and Chairman of the Press Council and show that both Houses were conscious of the fact that the remarks about Mahatma Gandhi and Netaji Subhash Chandra Bose were made not by an ordinary person but by one who had occupied high public office. Hence, if both Houses thought it fit to pass resolutions in the form of a declaration, it was certainly within their competence to do so as the nature of remarks regarding Mahatma Gandhi and Netaji Subhash Chandra Bose pertain to general public interest. It was further noticed that the resolutions had no civil consequences in so far as the conduct and character of the petitioner is concerned. [Justice (Retd.) Markandey Katju v. The Lok Sabha, 2016 SCC OnLine SC 1484, decided on 15.12.2016]


Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): While reiterating that third party’s personal information held by the bank in fiduciary capacity involving commercial confidence is exempt from disclosure under Section 8(1)(d), (e) and (j) of the RTI Act, CIC disposed of an appeal seeking information from the State Bank of India (Mumbai) regarding the basis of giving huge loans to Gautam Adani Group along with the evidence that the loan was connected to the coal mines of Australia.

It was alleged by the appellant that the Group has taken loans worth about Rs. 77,000 crores from various banks and the Group’s financial position was not sound, therefore, he wanted the information. Earlier, appellant approached CPIO and the first appellate authority (FAA) of the Bank but was informed that the information being sought was commercial information and held by them in trust for the third party, therefore, it could not be provided. The contention of the appellant that larger public interest was involved in the matter as it was his duty to enquire into the documents submitted by the Group, was rejected by the Commission on the ground that appellant had not even mentioned any larger public interest in the matter let alone substantiate in his RTI application. “The Commission finds that the appellant had sought third party’s personal information held by the bank in fiduciary capacity involving commercial confidence. The Commission, therefore, holds that the information sought is exempt under Section 8(1)(d), (e) and (j) of the RTI Act,” noted the Commission while disposing of the appeal. [Ramesh Ranchordas Joshi v. State Bank of India, 2016 SCC OnLine CIC 15858, decided on October 4, 2016]