Gurgaon Advocate's community

05/10/2018

Cannot Compel Pro-life pregnancy Centers to promote abortion: SCOTUS Stays California Law.

The Supreme Court of the United States of America (SCOTUS) on Tuesday ruled in favour of a preliminary injunction against a California law that required all pregnancy centers, including pro-life ones, to post referrals to state-funded abortion providers and birth control resources, forcing them to promote services that violate their beliefs.
The Court, with a 5-4 majority, ruled that the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) “targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech.” It then opined that the petitioners were likely to succeed on the merits of their claim that the Act violates the First Amendment, and remanded the case for further proceedings consistent with its opinion.
Justice Clarence Thomas delivered the opinion of the court, and was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito and Neil Gorsuch. Justice Kennedy filed a concurring opinion in which Justices Roberts, Alito and Gorsuch joined. Justice Stephen Breyer filed a dissenting opinion and was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
The law
The FACT Act was enacted to regulate crisis pregnancy centers—pro-life centers that offer pregnancy-related services. The FACT Act requires clinics that primarily serve pregnant women to provide certain notices. Licensed clinics are required to notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. Unlicensed clinics are supposed to notify women that California has not licensed the clinics to provide medical services.
The Court had now been approached by two crisis pregnancy centers, one licensed and one unlicensed, and an organisation of crisis pregnancy centers alleging that both the licensed and the unlicensed notices abridge the freedom of speech protected by the First Amendment. The District Court had denied their motion for a preliminary injunction, and the Ninth Circuit had affirmed.
Licensed notice likely violates First Amendment
The Court noted that while enforcing the prohibition against laws abridging free of speech under the First Amendment, the precedents distinguish between content-based and content-neutral regulations of speech. Content-based regulations, it said, “target speech based on its communicative content”. The Court then noted that the impugned licensed notice is a content-based regulation of speech, and went on to reject the lower level of scrutiny applied by the Ninth Circuit on the notice, which the Ninth Circuit ruled to be falling under the ambit of “professional speech”. SCOTUS in fact snubbed the Ninth Circuit for having treated “professional speech” as a unique category exempt from ordinary First Amendment principles.
It then opined that the licensed notice cannot even survive intermediate scrutiny, highlighting the fact that the FACT Act also excludes, without explanation, several clinics from these requirements. Such exemptions, it asserted, demonstrates “the disconnect between its stated purpose and its actual scope”.
It observed, “California asserts a single interest to justify the licensed notice: providing low-income women with information about state-sponsored services. Assuming that this is a substantial state interest, the licensed notice is not sufficiently drawn to achieve it. If California’s goal is to educate low-income women about the services it provides, then the licensed notice is “wildly under-inclusive”… California has identified no evidence that the exempted clinics are more likely to provide this information than the covered clinics.”
The Court further emphasised on the fact that California itself could have advertised the information, instead of placing the responsibility on such clinics, observing, “California could even post the information on public property near crisis pregnancy centers…California cannot co-opt the li- censed facilities to deliver its message for it.”
It then concluded that the petitioners are likely to succeed on the merits of their challenge to the licensed notice.
Unlicensed notice “unduly burdensome”
With regard to the unlicensed notice, the Court opined that California had not demonstrated any justification for the unlicensed notice that is more than “purely hypothetical.” It highlighted the fact that while the unlicensed notice applies to facilities that provide “pregnancy-related” services, it excludes facilities that advertise and provide nonprescription contraceptives, even though the latter is also likely to make women think that it is licensed.
It then ruled that the unlicensed notice is “unjustified and unduly burdensome”, observing, “The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California’s informational interest. It requires covered facilities to post California’s precise notice, no matter what the facilities say on site or in their advertisements. And it covers a curiously narrow subset of speakers…

05/10/2018

Senior Designation process in SC moves on snail pace

Chief Justice of India Ranjan Gogoi has impelled the expectations of Advocates on designation as Senior Advocate since he is expected to fast-track the process which has been suffering procrastination despite his popular directions on judicial side issued on 16 October 2017.

The Parliament, following the English practice of designation of Barristers as Queen’s Counsel, has vested in the Supreme Court and High Courts concurrent powers under Section 16(2) of the Advocates Act, 1961, to designate an Advocate as Senior Advocate if the Chief Justice and Judges constituting the Full Court are satisfied that the Advocate deserves the distinction having regard to his standing at the Bar and or domain expertise in particular area of law.

The designation of Advocates in the Supreme Court and High Courts invited widespread criticism for rigidity, selectivity and arbitrariness. The Advocates with domain expertise felt they were particularly discriminated for want of regular appearances in the court as general practitioners appear regularly. Noted lawyer Indira Jaising moved a Public Interest Litigation seeking formulation of objective criteria and involvement of the Bar in the transparent appraisal of the profiles of Advocates on their standing and expertise before designating them as Senior Advocates. A bench headed by then Justice Ranjan Gogoi on 16th October, 2017, directed the Supreme Court and High Courts on administrative side to constitute a Permanent Committee on Designation consisting of Chief Justice, two senior-most judges, Attorney General (Advocate-General) and eminent lawyer for recommending the names of Advocates to the Full Court after an overall assessment based on 100 points index [Indira Jaising vs. Supreme Court of India, 2017 (9) SCC 766]. The index prescribes marks on experience at the Bar, the pro bono work and more importantly the domain expertise supported by reported cases and publications.

The Supreme Court on its administrative side, unfortunately, has not implemented its own judgment passed on the judicial side for last one year, pouring cold water on the expectations of the Bar. Even the High Courts have not implemented the directions. On 6 August 2018, the Supreme Court belatedly issued a notice, calling for applications from the intending Advocates. The transparent guidelines invited an unprecedented response from the Bar as about 120 Advocates, many of them who were sidelined for no rhyme or reasons, have responded to the application. Some of the applicant advocates are well known names for their standing and domain expertise in niche areas. They were neglected in the previous non-transparent system of designation.

However, even after six weeks of the submission of applications pursuant to the notice of 6 August 2018, the basic scrutiny has not been completed by the Secretariat of the Permanent Committee. Under the Rules, the names of applicant Advocates have to be put on the Supreme Court website for 15 days inviting views of the stakeholders. Thereafter, the Permanent Committee would hold an interview or interaction with the applicant Advocates to finalise the recommendations to Full Court for its final decision.

For many lawyers, becoming designated senior advocates is a shortcut to make pronominal money. In the present system, the contribution of many senior lawyers to the society, despite the huge income they earn, is abysmal.

There is a hope that more number of capable seniors may reduce the litigation cost substantially.

It is also a fact that many competent lawyers have not applied for senior designation as they feel that it is for the court to recognise them and confer designation. Generally, Bar has welcomed the new rules of designation as they feel that the new system is far better than the slow and opaque designation process that existed earlier. The delay in designation has led to discontent among many applicants and they earnestly hope that the new CJI would give due attention to the selection process.

13/05/2017

QUASHING OF FIR FRESH GUIDELINES

16/04/2017

Supreme Court : Husband’s Extra Marital Affair Is Not Cruel

14/04/2017

10 Top Judgments and Legal Principles of Section 138 N.I. A

04/04/2017

No property sale on power of attorney: Supreme Court

27/12/2016

14/10/2016

नई दिल्ली: जम्मू कश्मीर में फिर आतंकी हमला हुआ है. इस बार SSB के जवानों को निशान

29/09/2016

Indian army conducted surgical strikes on terror launch pads last night across the Line of Control (LoC) and inflicted significant casualties and heavy damages. 30-35 Terrorist were killed in this operation.
Congrats Indian Army. Jai Hind.

20/09/2016

The Supreme Court on Monday termed a High Court order which convicted a person for civil contempt, as “deplorable”. A three-judge Bench comprising Justice Anil R. Dave, Justice Uday Umesh Lalit and Justice L. Nageswara Rao also observed that it would not be fair on the part of a court to give a direction to do something which is impossible and if a person has been asked to do something which is impossible and if he fails to do so, he cannot be held guilty of contempt.

In 1985, Gyani Chand, on behalf of his mother had applied for return of some documents which were submitted before the court. Those documents were returned to him on an undertaking to the court that the said documents would be produced by him as and when the same would be required by the court. He transferred these documents to his mother.

In 2001, these documents were required in connection with an interim application. Gyani Chand submitted before the court that he had already handed over the said documents to his mother who had expired. He also told the court that his house was badly hit by the cyclone in 1999, as a result of which his house was submerged into the flood water consequent to that it was collapsed as his house was built up of mud and covered with asbestos sheets resulting which most of their belongings were swept away.

Upon reference to the high court, it initiated contempt proceedings which culminated in conviction and sentence of one week simple imprisonment and Rs 2,000 as fine. Gyani Chand underwent the sentence. Immediately after his conviction by the high court in 2005, Gyani preferred civil appeal before the apex court and the judgment was delivered on Monday.

The Bench observed that he had no intention of committing breach of the undertaking given to the court and it was physically impossible for him to produce the documents as the documents had already been given by him to his mother, on whose behalf he had collected the same from the court and the said documents had been subsequently destroyed because of a natural calamity.

Referring to Section 2(b) of the Contempt of Courts Act, 1971, and opining that there has been no ‘wilful’ breach, the court said: “It is deplorable that the appellant has been held guilty and has also undergone the sentence imposed by the high court. In our opinion, after knowing the above stated facts, the court should not have directed the appellant to produce the documents because it was impossible for the appellant to produce the documents.”

27/08/2016

6 months waiting period in mutual divorce waived off: SC
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In order to give the complete justice the Supreme Court today in exercise of its powers under Article 142 of the Constitution of India has waived off the statuary period of 6 months by granting the decree of divorce by mutual consent to a couple.

The wife Aditi Wadera and husband Vivek Kumar Varinder Wadera were present in court and stated that several criminal cases are pending against each other and now the parties have entered into the compromise through mediation. The Supreme Court disposed off all the criminal as well as civil cases pending against each other in various courts.

Both the husband and wife stated before the Supreme Court that both as lived together for only few days in the year 2010. Now both have parties have taken the conscious decision without any sort of pressure to put an end to all the pending. They have also filed joint petition for mutual divorce under Section 13-B of Hindu Marriage Act before the District Court.

The Hon’ble Supreme Court speaking through Justices Kurian Joseph and RF Nariman considered the kind of several litigation’s pending between the parties over a period of five years at various levels, the both husband and wife living separately for more than five years etc. The husband submitted that he has to go back to USA to do his work and the wife also submitted that she has to take care of her future.

The Supreme Court held that it’s a vigorous case where the statutory period of 6 months waiting can be waived off to grant the decree of divorce by mutual consent by invoking powers under Article 142 of the Constitution of India.

Saurav Goyal, divorce lawyer in Chandigarh welcomed the judgment of the Supreme Court and said that three months ago also, in some other case the same bench has also waived off the statutory waiting period of 6 months and has granted the decree of divorce.

Yogesh Goel the top family and matrimonial lawyer in Punjab & Haryana High Court said that though there is the mandatory 6 months waiting period required under Hindu Marriage Act and no Court can grant the mutual divorce before 6 months but this judgment will certainly evolve the law on this subject in the future.