LEGAL BONAFIDE

Recent Landmark Judgement and Bills.

Public interest Foundation vs. UOI

25th September 2018, the Court delivered its judgement in the Electoral Disqualification case. The Court
had to decide if persons ought to be disqualified from membership in legislative bodies when criminal
charges are framed against them. Currently Section 8 of the Representation of Peoples Act only
disqualifies persons when they are convicted of criminal charges.

The Court issued the following directions:

1. Candidates must fill up forms containing all particulars
2. In said forms, criminal antecedents to be stated in bold
3 Candidates must inform the concerned political party of pending criminal cases against them 4.
Concerned political party to put up such criminal antecedents of candidates on party website.
5 . Wide publicity by both candidates and parties in press and media of the criminal antecedents.
Wide publication meaning at least thrice after filing of nominations

Rambabu Singh Thakur v. Sunil Arora

On 13 February 2020, a 2 judge Bench comprising Justice RF Nariman and SR Bhat delivered a
judgment in the contempt petition arising out of the Electoral Disqualification case (Public Interest
Foundation). Various litigants, including BJP spokesperson Ashwini Kumar Upadhyay, had filed
contempt petitions against the Election Commission of India for not monitoring whether political
parties were complying with the directions issued in the 2018 judgment in Public Interest Foundation.

The Bench re-iterated the Court's 2018 directions and directed the Election Commission to report to
the Supreme Court any non-compliance by political parties.

Criminalisation of Politics
On 25th September, the court in Public Interest Foundation case decided that it does
not have the authority to disqualify electoral candidates upon framing of criminal
charges. Presently, the electoral candidates are disqualified only upon conviction and
the court respected the separation of power by not adding more disqualification
.However, the court issued a slew of guidelines, including asking the Parliament to
enact a relevant law and asking Election Commission to give wide publicity to

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candidates' criminal antecedents in print and electronic media. The court has made
regular interventions in addressing the menace of criminalisation of politics. Here, we
map some of the previous Supreme Court interventions on the issue.

Articles 129 and 142 of the ConstitutionThe SC passed an order while exercising

powers under which deals with the contempt power of the Supreme Court and

enforcement of its decrees and orders..

Law Commission 244th report - Electoral Disqualification

The Law Commission in its 244th Report recorded that disqualification upon
conviction had proved ineffective in preventing the criminalization of politics.
Disqualification at the stage of framing of charges, accompanied by other legal
safeguards could be an effective means to curb such criminalization.

It also recommended that the punishment for filing of false affidavits be

enhanced to minimum 2 years imprisonment and such an offence must also be
made a ground for disqualification. Accordingly, in all such cases trails must be
conducted on a day-to-day basis so as to ensure the necessary conviction that
precedes disqualification.

National Legal Services Authority v. Union of India is a landmark decision by

the Supreme Court of India, which declared transgender people to be a 'third
gender', affirmed that the fundamental rights granted under the Constitution
of India will be equally applicable to transgender people, and gave them the
right to self-identification of their gender as male, female or third-gender.
This judgement is a major step towards gender equality in India.[1][2][3][4]
Moreover, the court also held that because transgender people were treated
as socially and economically backward classes, they will be granted
reservations in admissions to educational institutions and jobs.

Indian Young Lawyers’ Association v. State of Kerala

Sabarimala Temple is a temple of Shasta situated at Sabarimala in
Pathanamthitta District, Kerala, India.[1] In the past, women devotees of
menstruating age were not permitted to worship here, this ban being said to

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be out of respect to the celibate nature of the deity (underage teenage Male)
in this temple.
In this Case Supreme Court held that temple's practice of excluding women
is unconstitutional. It held that the practice violated the fundamental right to
freedom of religion - Article 25(1) - of female worshippers. It struck down
Rule 3(b) of the Kerala Hindu Places of Public Worship Act as
unconstitutional. Rule 3(b) allowed for Hindu denominations to exclude
women from public places of worship, if the exclusion was based on 'custom'.

The separate opinions: Chief Justice Misra, Justice Nariman, Justice

Chandrachud, Justice Malhotra. Justice Nariman & Justice Chandrachud
concurred with the opinion of Chief Justice Misra. The dissenting opinion in
the case was delivered by Justice Indu Malhotra.

Tripple Talaq
Shayra bano vs Union of India
A Constitution Bench has declared that the practice of instantaneous Triple Talaq
is unconstitutional.

Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, he

divorced her through instantaneous triple talaq (talaq -e biddat). She filed
a Writ Petition in the Supreme Court asking it to hold three practices –
talaq-e-biddat, polygamy, nikah-halala – unconstitutional as they violate
Articles 14, 15, 21, 25 of the Constitution.

Talaq-e- bidat is a practise which gives a man the right to divorce to his
wife by uttering ‘talaq’ three times in one sitting without his wife’s
consent. Nikah Halala is a practise where a divorced woman who wants to
remarry her husband would have to marry, and obtain divorce, from a
second husband before she can go back to her first husband. And
polygamy is a practice which allows Muslim men to have more than one
wife.

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 LAWS RELATED TO PROTECTION OF WOMEN MUSLIM WOMEN
(PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019
President gave assent to the Muslim Women (Protection of Rights on
Marriage) Act 2019. It will replace the Muslim Women (Protection of
Rights on Divorce) Act, 1986 enacted after the Shah Bano Case (1985).
Major Provisions of the 2019 Act:
• It invalidates the practice of instant triple talaq (talaq-e-
biddat) as void and illegal.
• It makes instant triple talaq a criminal offence with
imprisonment up to three years & fine.
• It provides to make the offence cognizable, if information
relating to the commission of an offence is given to the Police, by the
married Muslim woman upon whom talaq is pronounced or by any
person related to her by blood or marriage
o A cognizable offence is one for which a police officer may arrest an
accused person without warrant.
The Act also provides scope for reconciliation without undergoing the
process of Nikah Halala if the two sides agree to stop legal proceedings
and settle the dispute.
Allowance: A Muslim woman against whom talaq has been declared, is
entitled to seek subsistence allowance from her husband for herself and
for her dependent children. The amount of the allowance will be
determined by the Magistrate.
Custody: A Muslim woman against whom such talaq has been declared, is
entitled to seek custody of her minor children. The manner of custody will
be determined by the Magistrate.

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 The Supreme Court has upheld the constitutional validity of the
Karnataka Extension of Consequential Seniority to Government
Servants Promoted on the Basis ofReservation (to the Posts in the Civil
Services of the State) Act 2018.
Background of this Judgement
In Indra Sawhney vs Union of India, the Supreme Court had held tha
reservations under Article 16(4) could only be provided at the time of
entry into government service but not in matters of promotion.
In 1995, Parliament, acting in its constituent capacity, adopted the 77
amendment by which clause (4A) was inserted into Article 16 to
enable reservation to be made in promotion for SCs and STs.
The validity of the 77 and 85 amendments to the Constitution and of
the legislation enacted in pursuance of those amendments was challenged
before the Supreme Court in the Nagaraj case. The SC upheld the
constitutional validity of these amendments and ruled that:
If the state “wished to exercise their discretion and make provision (for
reservation in promotions for SCs/STs), the State has to collect
quantifiable data showing backwardness of the class and inadequacy of
representation and compliance to Article 335”.
It will have to see that its reservation provision does not breach the
ceiling-limit of 50%.
The Karnataka Determination of Seniority of the Government Servants
Promoted on the Basis of the Reservation Act 2002 was held to be
unconstitutional [in BK Pavitra CASE] on the ground that an exercise for
determining 'inadequacy of representation', 'backwardness' and the
impact on 'overall efficiency' had no preceded the enactment of the law.
This Supreme Court order is significant because it underlines “a
meritorious’ candidate is not merely one who is ‘talented ‘or
‘successful’ but also one whose appointment fulfils the constitutional goals
of uplifting members of the SCs and STs and ensuring a diverse and
representative administration”.

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Basis for the Judgement
The providing of reservation for SCs and STs is not at odds with the
principle of meritocracy. Merit must not be limited to narrow and
inflexible criteria such as one’s rank in a standardised exam, but
rather must flow from the actions a society seeks to
reward, including the promotion of equality in society and diversity in
public administration.
Article 335 recognises that special measures need to be adopted for
considering the claims of SCs and STs in order to bring them to a
levelplaying field.
Centuries of discrimination and prejudice suffered by the SCs and
STs in a feudal, caste-oriented societal structure poses real
barriers of access to opportunity.

Hindustan Construction Company Limited And Anr. v.

Union Of India And Ors.
The constitutional validity of Section 87 of the Arbitration and
Conciliation Act, 1996 (Act) was challenged and supreme court
struck down this act.

Shrimanth Balasaheb Patil vs Honble Speaker Karnataka

The 3-judge bench of NV Ramana, Sanjiv Khanna, and Krishna
Murari, JJ has upheld the speaker’s orders dated 25.07.2019 and
28.07.2019 to the extent of the disqualification of the Petitioners but
has set aside the part of order that said that disqualified members can’t
contest elections till the end of the current Assembly term.

i.e. the 15th Legislative Assembly of Karnataka. It, hence, directed that
17 Karnataka MLAs can contest the by-elections in the state.

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 RESERVATION IN PROMOTIONS FOR SC/ST.
• The Central Government has demanded for a review of 2018 Supreme Court Verdict in
Jarnail Singh vs Lachhmi Gupta Case, related to reservations in promotions for SC/ST.
• Recently, the Supreme Court upheld ‘The Karnataka Extension of Consequential
Seniority to Government Servants Promoted on the Basis of Reservation (To the Post
inthe Civil Services of the State) Act, 2018’, granting a quota in promotions for state
government employees from the Scheduled Caste and Scheduled Tribe communities..
Legality of SC/ST Act Amendment

Prathvi Raj Chauhan v. UOI

The Supreme Court upheld the constitutional validity of Parliament’s
2018 Amendment to the Prevention of Atrocities Act.
Further
The safeguards from the Kashinath Mahajan judgment were intended to
prevent people from abusing the SC/ST (Prevention of Atrocities) Act,
1989. They were a response to the allegedly rising number of false charges
being filed using the Act. The safeguards aimed to ensure that people
accused under the Prevention of Atrocities Act are not presumed guilty
and denied due process.

.. RESERVATION FOR EWS

The central government recently told the Supreme Court that state
governments were free to decide whether to implement the 10%
reservation for the economically backward in jobs and admissions.

About reservation for economically weaker sections (EWS).

• The 103rd Constitution Amendment Act 2019 inserted Article 15 (6)
and Article 16 (6) in the Constitution to allow reservation for the EWS
among the general category.

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• Article 15 has been amended to enable the government to take special
measures for the advancement of “economically weaker sections” (EWS).
• Up to 10% of seats may be reserved for such sections for admission
in educational institutions. Such reservation will not apply to minority
educational institutions.
• The newly added Article 16(6) permits the government to reserve up
to 10% of all government posts for the “economically weaker sections” of
citizens.
• This reservation of up to 10% for the EWS will be in addition to the
existing reservation cap of 50% reservation for SC, ST and OBCs.
• Centre has no role in deciding the reservation policy of a state
government.
• State governments are free to decide whether to implement the 10%
quota for EWS in state government jobs and admissions to state
government educational institutions.

JOB RESERVATION
The Supreme Court sought the Centre’s response to a plea alleging that
despite the striking down of draconian Section 66A of the IT Act in 2015
by the apex court,
police in various states were still invoking it in FIRs to clamp down on free
speech on social mediabplatforms.
The petition said a recent working paper by the Internet Freedom
Foundation
demonstrated that pending prosecutions under Section 66A had not been
terminated,and further it continued to be invoked by police across India
in FIRs registered afterthe 2015 judgment.

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The petition said there had been a huge communication gap at the
ground level and many officials may not even know about the Supreme
Court verdict.
It said trial courts and prosecutors were not actively implementing
the verdict and the burden of terminating illegal prosecutions based
on Section 66A fell on the accused persons.
Background
Section 66A dealt with information related crimes in which sending
information, by
means of a computer resource or a communication device, which is
inter alia offensive, derogatory and menacing is made a punishable
offence.
In Shreya Singhal v. Union of India judgement, Justices Rohinton
F. Nariman and J.Chelameswar had observed that the weakness of
Section 66A lay in the fact that I had created an offence on the basis
of undefined actions: such as causing “inconvenience, danger,
obstruction and insult”, which do not fall among the
exceptions granted under Article 19 of the Constitution, which
guarantees the freedom of speech.
The court also observed that the challenge was to identify where to
draw the line.
Traditionally, it has been drawn at incitement while terms like
obstruction and insult remain subjective.
In addition, the court had noted that Section 66A did not have
procedural safeguards like other sections of the law with similar aims,
such as :
The need to obtain the concurrence of the Centre before action can be
taken.Local authorities could proceed autonomously, literally on the
whim of their political masters.

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 The judgment had found that Section 66A was contrary to both
Articles 19 (free speech) and 21 (right to life) of the Constitution. The
entire provision was struck down by the court.
After that government had appointed an expert committee (T.K.
Viswanathan committee) which proposed a legislation to meet
the challenge of hate speech online.
Judgements on Internet as right
• In Faheema Shirin v. State of Kerala, the KeralaHigh Court
declared the right to Internet access as a fundamental right,
forming part of right to privacy under Article 21 of the
Constitution of India.

RIGHT TO PROPERTY
Supreme Court was hearing a plea where land of the appellant was taken
over by Himachal Pradesh government in 1967.
What Supreme Court said?
• To forcibly dispossess a person of his private property, without
following due process of law, would be violative of a human right. Article
300A, which provides for Right to Property, required the state to follow
due procedure and authority of law to deprive a person of his or her
private property. It ceased to be a fundamental right with the 44th
Constitution Amendment Act in 1978.
• The State cannot be permitted to perfect its title over the land by
invoking the doctrine of adverse possession to grab property of its own
citizens.
Under "doctrine of adverse possession", a person who is not the original
owner becomes the owner because of the fact
that he has been in possession of the property for a minimum of 12-years,
within which the real owner did not seek legal recourse against him.

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 The Supreme Court in a recent judgement has held that the Prohibition of
Child Marriage
Act, 2006 does not intend to punish a male aged between 18 and 21 years
for marrying a“female adult”.
The case concerned a boy who married a 21-year-old woman when he was
17 years old.
Key Points
The Court interpreted Section 9 of the Act and ruled that neither does the
provision punish a child for marrying a woman nor a woman for marrying
a male child.
The provision does not punish even a female adult for marrying a male
child because in Indian society, decisions regarding marriage are usually
taken by the family members of the bride and groom, and women
generally have little say in the matter.
The sole objective of the provision is to punish a man for marrying a minor
girl.
It also said that the 2006 Act also gives an option for prospective grooms
who are between 18 and 21 years old to opt out of marriages.
The Prohibition of Child Marriage Act, 2006
The law seeks to prevent child marriages by making certain actions
punishable and appointing certain authorities responsible for the
prevention and prohibition of child marriages.

Definitions under the Act

“Child” means a person who, if a male, has not completed twenty-one years
of age, and if a female, has not completed eighteen years of age.
“Child marriage” means a marriage to which either of the contracting
parties is a child.
“Minor” means a person who has not attained his majority under the
provisions of the Majority Act, 1875. As per the Majority Act, 1875, every

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person domiciled in India attain the age of majority on his completing the
age of eighteen years.
Child marriage is an offence punishable with rigorous imprisonment,
which may
extend to 2 years, or with fine up to Rs.1 Lakh, or both. The offences under
the Act are cognisable and non-bailable.
Persons who can be punished under the Law include Whoever performs,
conducts or directs or abets any child marriage.
A male adult above 18 years marrying a child (Section 9).
Any person having charge of the child, including – parent or guardian, any
member of an organisation or association, promoting, permitting,
participating in a child marriage.
The Supreme Court on 17th January 2019 fixed a February- end deadline
for the search committee on Lokpal to recommend a panel of names for
appointment of the country's first anti-graft ombudsman. The Lokpal and
Lokayukta Act came into effect in 2013, but India still doesn’t have any
Lokpal at Centre and Lokayukta in states as well.
India scored 40 out of 100 in Global Corruption Perception Index
2017. An institution like Lokpal can be tried to solve the problem of
Corruption. Also, The Lokpal and Lokayukta Act can be changed with the
time i.e. as per different situations.

Central Adoption Resource Authority (CARA)

India reported 246 cases of disruption and 10 cases of dissolution in

adoption over the period of the last five years.

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 Adoption procedure in India
• Adoption is the permanent legal transfer of all parental rights from one
person or couple to another person or couple.
Adoptive parents have the same rights and responsibilities as biological
parents, and adopted children have all of the emotional, social, legal and
kinship benefits of biological children.
• Adoption Regulations, 2017 notified by Ministry of Women and
Child Development, under Juvenile Justice (Care and Protection
of Children) Act, 2015 and subsequent Juvenile Justice (Care and
Protection of Children) Model Rules, 2016, govern the adoption
procedure in India.
• These provisions are in line with the Hague Convention on Intercountry
Adoption, 1993 which was ratified by Government of India in 2003.

MAINTENANCE AND WELFARE OF PARENTS AND SENIOR

CITIZENS (AMENDMENT) BILL, 2019

Recently, the bill was introduced in Lok Sabha which seeks to amend the
Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
Maintenance and Welfare of Parents and Senior Citizens Act, 2007
• Children includes son, daughter, grandson and grand-daughter.
The bill expands the definition of children to include step-children, adoptive
children, children-in-laws, and the legal guardian of minor children.
• Parents: means father or mother whether biological, adoptive or step
father or step mother.
o Bill include parent-in-laws, and grandparents

LEGAL BONAFIDE
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NATIONAL MEDICAL COMMISSION ACT 2019

Recently, President gave assent to National Medical Commission (NMC)

Act 2019.
Background
• Prof. Ranjit Roy Chaudhury committee (2015) recommended
structurally reconfiguring the (Medical Council of India) MCI’s functions
and suggested the formation of a National Medical Commission.
• Various other committees such as Lodha Panel(2016) and Arvind
Panagariya have also previously suggested scrapping of the MCI.
• Government earlier superseded the MCI through the Indian Medical
Council (Amendment) Ordinance, 2018. The powers of the MCI were
also switched from the elective council body to the board of governors.
• Recently, the government also passed the Indian Medical Council
(Amendment) Bill of 2019 to further continue the interim provisions
of the ordinance.
• The National Medical Commission (NMC) Act, 2019 seeks to replace the
MCI with a National Medical Commission and overhaul the medical
education system..
About NMC Act
• The Act seeks to proposes to repeal the Indian Medical Council Act,
1956 and replace the Medical Council of India(MCI)
• It provides for a medical education system which
ensures:
I)Availability of adequate and high-quality medical professionals
ii)Adoption of the latest medical research by medical professionals
iii)Periodic assessment of medical institutions.

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 HUMAN DEVELOPMENT REPORT 2019

The 2019 Human Development Report “Beyondincome, beyond

averages, beyond today: Inequalities in human development in the
21st century”, was recently released.
About the Human Development Report
• The Human Development Report was released for the first time in the
year 1990, by the United Nations Development Programme (UNDP).
• The Human Development Report Office releases five composite
indices each year:
Human Development Index (HDI), the Inequality-Adjusted Human
Development Index (IHDI), the Gender Development Index(GDI), the
Gender Inequality Index (GII), and the Multidimensional Poverty Index
(MPI).
• Human Development Index (HDI) is released as part of first Human
Development Report. This measures achievement in the basic dimensions
of human development across countries. The HDI ranks countries on the
basis of three parameters: o Life expectancy o Education o Per capita
income
Findings with respect to India
• India ranks 129 (score 0.647) out of 189 countries on the 2019
Human Development Index (HDI). This is an improvement from 130 th
(score o.643) position in 2018.
In India, between 1990 and 2018, life expectancy at birth increased by
11.6 years, mean years of schooling increased by 3.5 years and expected
years of schooling increased by 4.7 years. Per capita incomes rose by
over 250 per cent.

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• India is only marginally better than the South Asian average on the
gender development index (0.829 versus 0.828), and ranks at a low 122
of 162 countries on the 2018 gender inequality index.

LEGAL BONAFIDE

“Law for the People,By the People,To the People in Good faith”

SAURABH KR.SINGH

https://legal-bonafide.ueniweb.com

aaasksingh@gmail.com

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