Sarthak Solutions

23/06/2021

The Gujarat High Court is hearing a batch of PILs challenging prohibition on manufacture, sale and consumption of liquor in the state vide the Gujarat Prohibition Act, 1949, on grounds of 'manifest arbitrariness' and violation of 'right to privacy'.

Responding to the preliminary objections raised by State, Senior Advocate Mihir Thakore today argued that the challenge to the legislation before the Supreme Court was only to the limited extent of medicinal and toilet preparation.

"The proceedings were confined to prohibiting the use of medicinal and toilet preparation. The challenge was not absolute. Challenge to other parts of provision was kept aside," he submitted.

Advocate General Kamal Trivedi on Monday argued that the petition is not maintainable inasmuch as the issue called into question has already been settled by the Supreme Court in State of Bombay & Anr. v. FN Balsara where validity of the 1949 Act was upheld.

He argued that emergence of a new ground for challenge cannot be the basis for disputing te sanctity of the Supreme Court judgment.

Thakore has argued that the question of validity of prohibiting consumption of alcohol was not decided by the Supreme Court and it is in this context that the Gujarat High Court is competent to adjudicate.

"What is the basis of differentiating between various people? My challenge is on ground of privacy. If I want to consume liquor in the precincts of my home, that right you cannot control. If I misuse it, go out and misbehave, then certainly you can catch hold of me," he said.

Advocate Mihir Joshi linked the right to privacy with the citizens' right to eat and drink as per their choice and remarked, "What's to stop the State from coming into our homes and saying, no non-veg from tomorrow?" he asked.

Thakore stated that several provisions that the Petitioners have challenged were not called into question before the Supreme Court. Some provisions whose validity was decided by the Supreme Court in 1951 have been "materially amended" since and certain provisions have been added by way of subsequent amendments.

"Supreme Court considered Section 12 & 13 (prohibition on sale & manufacture of liquor) to the extent of medicinal and toilet preparation only. Section 24-1B (prohibition on entry in State in intoxicated condition) was not in existence then. Section 43 (regulation of use/ consumption of foreign liquor by permit holders) was not under challenge before Supreme Court," Thakore pointed out.

He added,

"Judgment of Supreme Court does not have the effect that petition is not maintainable. Independently your Lordships can decide upon these Sections. They have undergone material change."

He stated that the judgments cited by the AG pertain to cases where same Section was challenged again. "It has to be same Section being challenged on a different ground. Here, only a part of Section was challenged," he submitted.

Adding to this, Advocate Saurab Soparkar said, "Liquor consumption was not the controversy before Supreme Court. So obviously, what is not in dispute before it, cannot be expected to be adjudicated by it."

Advocate Devan Parikh submitted that there is a distinction between Principle of precedent and Principle of Res Judicata. He stated that the judgment of Supreme Court which decides on competence of legislature, is limited and it is still open to other parties to challenge it as violative of their fundamental rights.

"If the SC has taken a view that Legislature has power under a particular Entry for purpose of enacting a law then its ratio decindi is for purpose of Entry in question. The power to legislate is decided.

Tomorrow if in context of same legislation, I come and say that I am not arguing in context of legislative competence. I will argue on basis of Article 14. Principle of precedence doesn't say that you cannot adjudicate," Parikh said.

He added,

"In the context of Constitutionality, the principle of precedence does not have to be adhered to with that amount of strictness. If the Court at a point of time thinks that law has changed requiring a re-look, that may be done."

Advocate Mihir Joshi argued that their challenge is principally based on Right of privacy, which given voice by the Supreme Court in 2017 in Puttaswamy Judgment.

"This could not have fallen for consideration 60 years back. Argument of Mr. Trivedi that new grounds cannot be taken is "new grounds that were available" can't be taken. New grounds where new fundamental rights have received exposition by Supreme Court..." he said.

He added,

"A law once held valid can be held unconstitutional with passage of time. Constitution cannot be static otherwise it becomes dead letter."

Joshi further said that the objection raised by the State cannot even be called a preliminary objection and the same should be decided while hearing merits of the case.

However, the Bench said that it has heard the counsels at length and it will first decide whether preliminary objections are sustained or not, before proceeding any further.

22/06/2021

UGC Will Instruct Universities To Commence Addmission Process Only After Results Of CBSC,ICSE and State Boards : AG Tells Supreme Court.

The Supreme Court on Tuesday recorded Attorney General KK Venugopal's submission that the UGC will be issuing necessary instructions to ensure that admission process by Colleges and Institutions will commence only after declaration of results by CBSE, ICSE and all State Boards.
The Attorney General's assurance came in counter to Senior Counsel Vikas Singh's argument that the delay in announcing the results of the Class XII optional/improvement exam will affect the admission prospects of students.

A division Bench of Justice AM Khanwilkar and Justice Dinesh Maheshwari was hearing the pleas filed seeking cancellation of the Class XII CBSE and ICSE, State Board and CBSE Class XII Compartment/Private/Repeaters examination, written exams.

During the course of the hearing, the Bench in consideration of Singh's submission, also considered the idea of directing all the Boards to declare results together so that the issue of students losing opportunity due to delay in declaration of results doesn't arise.

At this juncture, the AG responded saying that " The Controller of Exams is here. What he is saying is, after July 31st, the UGC will wait for results from State Boards as well as ICSE and then direct the admissions for professional colleges and give them the signal. The apprehension is not justified as UGC will wait for all Boards"

"Including the written exams." Singh said.

"That will depend on Covid" AG said.

Later during the hearing, a similar grievance was shared by Advocate Abhishek Choudhury, who was appearing for the intervenors(private and second compartment students of CBSE). He stated that there is uncertainty on the conduct of compartment exams and there is likelihood of college seats getting occupied by regular students from CBSE, ICSE and State Boards.

After the Bench in pursuance of AG's submissions observed that the improvement exams would be conducted between 15th August to 15th September, Choudhary further stated that, in that case, the right of these students to seek admission in higher education should also be reserved.

"The Admission will be on merits, if your result is declared you can seek admission based on that results." the Bench said.

Mr Choudhary responded saying that the seats will be filled by the regular students.

"Did you hear Mr Attorney? He has said that UGC is going to instruct all Colleges not to begin the process unless the results are declared." Justice Khanwilkar remarked.

After the order was dictated, Senior Adv Vikas Singh asked the Court to record that as stated by Attorney General, the UGC will take into account the second results also without finalising the admission.

"I've already said that UGC will notify when admission process will be commenced." Justice Khanwilar said.

The Court dismissed the petitions challenging the decision of CBSE and ICSE to cancel the Class XII exams and approved the schemes formulated by the boards for internal assessment.

31/12/2017

Divorce vs Judicial Separation

A Decree Absolute of Divorce brings a marriage to an end and Judicial Separation does not. However, it is more than a husband and wife living apart. A Decree of Judicial Separation can be sought on one of the five facts that are available for divorce but it is not necessary to prove that the marriage has irretrievably broken down.

In Divorce there are two Decrees: Decree Nisi andDecree Absolute. In Judicial Separation there is one Decree pronouncing Judicial Separation. The parties remain married and are therefore not able to remarry. The Court is able to make the range of financial orders that are available on Divorce, save for Pension Sharing or Pension Attachment Orders.

The Decree of Judicial Separation has the same effect as a Decree Absolute of Divorce upon a Will. The spouse can no longer take any benefit under the Will unless there is a new Will specifically stating they are to do so.

Petitions for Judicial Separation are very rare but there may be reasons for a party seeking this rather than a Divorce, such as one or both of them having religious beliefs or the parties not having been married for the requisite one year required for a Divorce.

27/10/2017

रेप, गैंगरेप और चाइल्ड पोर्नोग्राफी के वीडियो इंटरनेट पर ना रहें, इसके लिए सुप्रीम कोर्ट ने केंद्र सरकार को इंटरनेट सर्च इंजनों से मिलकर उन कीवर्डस की लिस्ट बनाने को कहा है जिनसे ऐसे वीडियो की पहचान और उन्हें ब्लॉक किया जा सके। इस सुनवाई के दौरान को...

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रेप, गैंगरेप और चाइल्ड पोर्नोग्राफी के वीडियो इंटरनेट पर ना रहें, इसके लिए सुप्रीम कोर्ट ने केंद्र सरकार को इंटरनेट सर्च इंजनों से मिलकर उन कीवर्डस की लिस्ट बनाने को कहा है जिनसे ऐसे वीडियो की पहचान और उन्हें ब्लॉक किया जा सके। इस सुनवाई के दौरान कोर्ट 11 प्रस्तावों व सिफारिशों को मंजूर कर …

14/10/2017

11/10/2017

A two Judge Bench of Supreme Court held that sexual in*******se with minor (below 18 years) wife is r**e.

"we are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: “Sexual in*******se or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not r**e.” It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution can be preserved and protected and perhaps given impetus". Justice Lokur said in his Judgment.

Justice Deepak Gupta in his Judgment Clarified that Section 198(6) of the CrPC will apply to cases of r**e of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code.

As per S.198(6) Of CRPC,

"No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual inter-course by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence"

It is also clarified that nothing said in this judgment shall be taken to be an observation one way or the other with regard to the issue of “marital r**e”

In a landmark ruling, the Supreme Court today read down exception 2 to Section 375 (which defines r**e) of the IPC (as amended by the Criminal Law (Amendment) Act, 2013) which allowed such a sexual act. The age of consent has been made 18 from 15 in these cases.

The verdict is set to have a huge impact on petition seeking criminalization of marital r**e which is pending in the Delhi High Court.

After Justice Madan B Lokur read out the operative portion. Justice Deepak Gupta had a separate concurring judgment with deferent reasoning and observations.

Justice Lokur observed that the "issue before us is of paramount importance" and spoke about the ill-effects of child marriage.

He also held that the exception in the r**e rules led to trafficking.

"However we refrain from commenting on adult marital r**e as the issue is not before us", he said. Justice Gupta ruled that the exception was violative of Article 14, 15 and 21 and the inconsistency with POCSO had to be removed.

A bench of Justices Madan B Lokur and Deepak Gupta was delivering verdict in a PIL filed by NGO Independent Thought. Its lawyer Gaurav Agrawal has challenged the validity of Exception 2 to Section 375 (which defines r**e) of the IPC (as amended by the Criminal Law (Amendment) Act, 2013), as violative of Articles 14, 15 and 21 of the Constitution as it permits intrusive sexual in*******se with a girl child aged between 15 to 18 years only on the ground that she has been married. The PIL argued that such a clause will only promote child marriage.

PETITIONER’S STAND

The PIL pointed out the rule's anomaly with Protection of Children from Sexual Offences Act, 2012 (POCSO) under which sexual in*******se with a girl child under the age of 18 years - with or without her consent - would constitute r**e.

http://www.livelaw.in/challenge-child-marriage-exception-r**e-sc-petitioner-ngo-relies-recent-triple-talaq-judgment/
Exception 2 mentions that sexual in*******se or sexual acts by a man with his own wife,( the wife not being under 15 years of age), is not r**e.

The petitioner argues that this makes it conducive for child marriages and allows husbands of illegal child marriages to force themselves on their wives, if they belong to the age group of 15 to 18 years. Section 375 defines r**e as sexual in*******se or any of the specified sexual acts with or without the consent between a man and a girl under 18 years of age.

http://www.livelaw.in/marriage-minor-need-not-mean-sex-supreme-court/
The Government’s justification that the exception to r**e has been provided to protect the institution of marriage, creates an arbitrary classification of girls between the ages of 15 and 18, and has no rational nexus with the object, he had suggested.

GOVERNMENT’S STAND

Senior counsel for the Central Government, Rana Mukherjee defended the retention of Exception 2 to Section 375 Indian Penal Code on the ground that Parliament was conscious of its social obligation.

http://www.livelaw.in/centre-criminalising-child-marriages-voidable/
Mukherjee referred to both the Protection of Children From Sexual Offences Act, 2012, (POCSO) and the Protection of Women from Domestic Violence Act, 2005, and said married women of 15-18 age group, if aggrieved with their marriage, could seek protection under both these Acts, as they do not have similar exception like the Indian Penal Code.

Mukherjee referred to the definition of “sexual abuse” under the Protection of Women From Domestic Violence Act and claimed it would take care of petitioners’ concerns.

The term “sexual abuse” is defined under the Act as including any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman

The counsel for the NGO, Independent Thought, Gaurav Agrawal, today began his submissions before the Supreme Court’s bench of Justices Madan B.Lokur and Deepak Gupta, justifying its public interest litigation challenging Exception 2 to Section 375 of the Indian Penal Code. Exception 2 mentions that…

11/10/2017

The purpose of custodial interrogation is not just for the purpose of confession, the bench observed.

The Supreme Court, in Santosh vs The State Of Maharashtra, has made an observation that merely because the accused did not confess, it cannot be said that he was not cooperating with the investigation.

The allegation against the accused was that he received misappropriated foodgrain meant for public distribution. The sessions court rejected his anticipatory bail application and later the high court also refused the same.

The bench comprising Justice Kurian Joseph and Justice R Banumathi observed that the investigating officer was of the opinion that the accused was not cooperating because he kept reiterating that he had not purchased the foodgrain. “The purpose of custodial interrogation is not just for the purpose of confession. The right against self-incrimination is provided for in Article 20(3) of the Constitution,” the bench observed referring to Selvi vs State of Karnataka.

11/10/2017

A group of fire cracker traders today knocked the doors of the Supreme Court seeking modification of the October 9 order as per which sale of crackers were banned in Delhi/NCR till November 1.

Making an urgent mentioning before a bench of justices Ranjan Gogoi, A M Sapre and Navin Sihna, they said that a huge amount of money has been invested by them after their licences were revived and the recent order of the apex court would cause huge loss to them.

They told the court that their licences were revived after the apex court lifted the ban as per an order on September 12 and thereafter they procured firecrackers for sale during Diwali.

Two of the judges Justice A K Sikri and Ashok Bhushan who passed the cracker ban order are sitting in the Constitution Bench at present hearing euthanasia case. But Justice Sapre who heard the mentioning was part of cracker ban order bench.

The bench assured the counsel for the traders that it “would consult the judge concerned, who had passed the order, for placing their interim application for urgent hearing”.

Allowing the plea filed by three kids aged between two and four years, the Supreme Court, taking into consideration the “adverse effects” of burning crackers “witnessed year after year” had last Monday banned its sale forthwith.

The court was delivering verdict in the petition filed by Arjun Gopal, Aarav Bhandari and Zoya Rao Bhasin seeking restoration of the ban ordered on November 11 last year.

Their plea explained how children were the worst affected by pollution saying “their lungs are not fully developed, making their systems more vulnerable and prone to lung disease, asthma, coughing, bronchitis, and re****ed development of the nervous system and cognitive impairment”.

The court, on petition by cracker manufacturers and license holders had lifted it on September 12 this year holding that the pollution control authorities had not given any "empirical data" to prove crackers was sole reason for extremely poor quality of air in Delhi-NCR post – Diwali.

The court found merit in the argument of Gopal Shankaranarayanan, the lawyer for the kids and father of Arjun Gopal that “ban imposed after last year’s Diwali has been lifted by SC precisely before this year’s Diwali season rendering it entirely without effect as it sustained for the 10 month period when large scale bursting of fireworks does not take place”

Making order lifting the ban effective only from November 1, the court said “We are of the view that the order suspending the licences should be given one chance to test itself in order to find out as to whether there would be positive effect of this suspension, particularly during Diwali period”, said the bench.

The court recounted that Delhi/ NCR witnessed a huge rise in air pollution during and after Diwali last year when poisonous smog enveloped the entire region for three days when pollutants in air where 30 times the permissible standards. “It leads to closing the schools and the authorities are compelled to take various measures on emergent basis, when faced with “health emergency” situation

11/10/2017

The Supreme Court Constitution bench, on Wednesday, concluded its hearing on the Living Will and Euthanasia, by taking note of the submissions by the counsel, that medical science is a growing discipline, and therefore, the possibility of revival of a person, who is considered terminally ill, cannot be ruled out.

The Chief Justice of India, Dipak Misra, who headed the bench, made frequent interventions during the hearing, by making it clear that right to live does not include the right to die, and that it should be ensured that the dying process should be dignified.

Justice D.Y.Chandrachud observed that while Passive Euthanasia presumes the right to die, the problem is that it also postulates the right to live. For instance, he said, one can say, “I have lived my life. I don’t want outside intervention to prolong my life”. Right to die is not presumed here, he suggested.

The Additional Solicitor General, P.V.Narasimha submitted that right to die is influenced by the vagaries of science. He opposed the concept of Living Will and the Medical Power of Attorney in case of terminally ill patients. His view is that consent expressed in the Living Wills could not be considered as informed, because the persons who opt for it may not be aware of future medical developments, which could contribute to treatment of medical conditions, considered as terminal today. He also cautioned that there could be complications if the persons making Living Wills today, want to withdraw their consent to right to die later.

Earlier, senior advocates, Arvind Datar and Sanjay Hegde sought recognition of Living Will as part of the Right to Life.

The bench reserved its judgment in the afternoon, after hearing counsel for interveners and impleaders in the case.

Prashant Bhushan, is the amicus curiae in the case. Delhi Medical Council, Society For the Right to Die with Dignity, Maharashtra, Dr.Surendra Dhelia of Adult Education Institute, Maharashtra, and Indian Society of Critical Care Medicine, Maharashtra are the interveners.

The judgment of the five-Judge bench is expected to clarify a number of issues concerning Living Will and Euthanasia, and help the Government to introduce a legislation in Parliament legalizing Passive Euthanasia with sufficient safeguards against its misuse.

02/10/2017

आज रोहटा रोड पर गड्ढे भरने का कार्य सुरु हो चूका है प्रहार टीम दुष्यन्त रोहटा जी का हार्दिक धन्यवाद करती है