Legal Updates – February 2021

1. Violation Of Fundamental Right To Speedy Trial Is A Ground For Constitutional

Court To Grant Bail In UAPA Cases: Supreme Court

A bench comprising Justices NV Ramana, Surya Kant and Aniruddha Bose held that Section
43D (5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on
ground of violation of Fundamental Right to Speedy Trial. It held, "Whereas at commencement
of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but
the rigours of such provisions will melt down where there is no likelihood of trial being
completed within a reasonable time and the period of incarceration already undergone has
exceeded a substantial part of the prescribed sentence."

The court observed thus while dismissing the appeal filed by NIA against an order of the Kerala
High Court granting bail to the accused in palm chopping of Thodupuzha Newman College
professor TJ Joseph in 2011.

2. Corruption Is An Offence Against Society: Supreme Court Sets Aside Gujarat HC

Judgment Acquitting An Accused

A bench comprising of Justices Ashok Bhushan, R. Subhash Reddy and MR Shah observed
that Offences under the Prevention of Corruption Act are offences are against the society. The
bench made the observation while setting aside a Gujarat High Court judgment acquitting an
accused in a corruption case.

"An Appellate Court while dealing with an appeal against acquittal passed by the Learned trial
Court, is required to bear in mind that in case of acquittal there is double presumption in favour
of the accused. Firstly, the presumption of innocence is available to him under the fundamental
principle of criminal jurisprudence that every person shall be presumed to be innocent unless
he is proved guilty by a competent court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened
by the trial Court. Therefore, while dealing with the cases of acquittal by the trial Court, the
Appellate Court would have certain limitations," the bench said.

3. 'Approach Of Union Of India Exasperates Us' : Supreme Court Imposes Rs. 1

Lakh Costs On Centre For Filing SLP With Delay Of 6616 Days
The approach of the Union of India in the manner it has filed the present special leave petition
exasperates us, the Supreme Court remarked while dismissing Special Leave Petitions filed by
the Central Government with a delay of 6616 days. All earlier counsel appears to have been
thrown in the dustbin, said the bench comprising Justices Sanjay Kishan Kaul, Dinesh
Maheshwari and Hrishikesh Roy said.

In this case, the Centre had filed an appeal before the Division Bench of the Delhi High Court
against a single bench judgment delivered on 07.05.2002. This appeal was dismissed for non-
prosecution on 15.12.2008. In the year 2016, the Centre filed an application seeking restoration
of the LPA seeking condonation of delay of 2590 days. This application was dismissed by the
Division Bench observing that Central Government cannot be compared to an illiterate litigant.

4. Supreme Court Lowers NEET 2020 Qualifying Cut Off By 10 Percentile For
Admission To First Year BDS Course For Year 2020-2021

A bench comprising Justices L. Nageswara Rao and Krishna Murari directed that the vacant
seats in first year BDS course for the year 2020-2021 shall be filled up from the candidates
who have participated in the NEET (UG) courses for the year 2020-2021 after lowering the
percentile mark by 10 percentile. It observed that lowering the minimum marks and reducing
percentile for admission to the first-year BDS course would not amount to lowering the
standards of education.

NEET 2020 for admission to the first year of Bachelor of Dental Surgery (BDS) was conducted
on 13-09-2020. Dental Council of India, recommended the lowering of qualifying cut off
percentile for admission to BDS course for the academic year 2020-2021. The candidates who
did not obtain the minimum marks prescribed by Sub-Regulation (ii) of Regulation II of the
Dental Council of India, Revised BDS Course Regulations, 2007 approached the Apex Court
aggrieved by non-acceptance of their representation seeking a lower cut-off.

5. 'Sudden Provocation Without Premeditation': Supreme Court Orders Release Of

Murder Accused Farmer Who Spent 18 Years In Jail

A bench comprising of Justices Hemant Gupta and S. Ravindra Bhat while ordering for release
of a murder accused farmer who spent 18 years in jail, held that he is liable to be convicted for
the offence under Section 304 Part I of IPC and not under Section 302. The Supreme Court
sentenced him to the sentence already undergone taking note of the period of custody
undergone (eighteen years); the relationship between the accused and the deceased and the
background in which the injuries were caused.

In this case, Pardeshiram was accused of murdering one Kartik Ram in an incident which
occurred on 30.5.2002. Pursuant to a dispute between them over construction of a wall,
Pardeshiram had allegedly assaulted the deceased with a spade and hit him with a stone on his
head and as a result, the deceased died. The Trial Court convicted him under Section 302 of
the Indian Penal Code and sentenced him to life imprisonment. The High Court dismissed his
appeal.

6. Heart Ailment Not A 'Disability' Covered Under Rights of Persons with

Disabilities Act: Supreme Court

A bench comprising of Justices Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy
held that a heart ailment (Dilated Cardiomyopathy condition) is not covered within the
definition of disability in the Rights of Persons with Disabilities Act.

The observation was made while dismissing an appeal against Patna High Court judgment
which upheld the order of a Shipping Corporation of India that rejected a seaman's Claim for
disability compensation. In his appeal challenging this judgment, one of the contentions raised
before the Apex Court was that his heart ailment should be understood as a disability under the
Disability Act and consequential benefits be accorded to him.

7. Consent Of Family, Community Or Clan Not Necessary Once Two Adult

Individuals Agree To Enter Into Wedlock: Supreme Court

A bench comprising Justices Sanjay Kishan Kaul and Hrishikesh Roy observed that consent of
the family or the community or the clan is not necessary once two adult individuals agree to
enter into a wedlock.

In this case, a father of a girl lodged 'missing persons complaint' after she eloped and married
a person, without informing him. Even after knowing about their whereabouts and the factum
of marriage, the Investigating officer insisted that the girl should appear at the police station to
record a statement so that the case can be closed. "The investigating officer must be sent for
counseling as to how to manage such cases," the bench said that while criticizing the conduct
of the IO in adopting these tactics.
 8. "Right To Protest Cannot Be Any Time And Everywhere": Supreme Court
Dismisses Review Petition Against 'Shaheen Bagh' Judgment

A three judge bench consisting of Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna
Murari dismissed the review petition filed against the Shaheen Bagh Judgment in which it is
held that the demonstrations expressing dissent have to be in designated places alone.
Dismissing the review petition, the bench held that the right to protest cannot be anytime and
everywhere.

"We have considered the earlier judicial pronouncements and recorded our opinion that the
Constitutional scheme comes with a right to protest and express dissent but with an obligation
to have certain duties. The right to protest cannot be anytime and everywhere. There may be
some spontaneous protests but in case of prolonged dissent or protest, there cannot be continued
occupation of public place affecting rights of others," the Court said.

9. Prior Knowledge Of Senior Secondary Level Biology Or Biological Science Is

Essential For Admission To MBBS Course: Supreme Court

A bench comprising Justice L. Nageswara Rao and S. Ravindra Bhat observed that prior
knowledge - both theoretical and practical, of senior secondary level in biology or biological
sciences is an essential qualification to get admission to MBBS Course.

The Court also observed that equivalence in qualification is not merely at the level of a 10+2
requirement, but MCI regulation requires equivalence in 'standard and scope' in an examination
where the candidate is tested in Physics, Chemistry and Biology including practical testing in
these subjects, along with English.

10. Consent Decree Would Not Serve As An Estoppel Where The Compromise Was
Vitiated By Fraud, Misrepresentation, Or Mistake: Supreme Court

A bench comprising Justices Mohan M. Shantanagoudar and Vineet Saran observed that a
consent decree would not serve as an estoppel, where the compromise was vitiated by fraud,
misrepresentation, or mistake.

It was also observed that consent decrees are intended to create estoppels by judgment against
the parties, thereby putting an end to further litigation between the parties and therefore it it
would be slow to unilaterally interfere in, modify, substitute or modulate the terms of a consent
decree, unless it is done with the revised consent of all the parties thereto.
 11. Supreme Court Closes Suo Moto Case Taken To Probe "Larger Conspiracy"
Behind Sexual Harassment Allegations Against Ex-CJI Gogoi

A bench comprising of Justices Sanjay Kishan Kaul, AS Bopanna and V. Ramasubramanian

closed the suo moto proceedings which were instituted to examine if there was a "larger
conspiracy" behind the allegations of sexual harassment against the then Chief Justice of India
Ranjan Gogoi.

The bench observed that enquiry panel headed by former SC judge Justice AK Patnaik has
submitted a report opining that a conspiracy behind the sexual harassment allegations cannot
be "ruled out". The report also surmised that certain tough stances taken by ex-CJI Gogoi
during his tenure could have triggered the allegations. The report also referred to an Intelligence
Bureau input that several persons were unhappy with Justice Gogoi for driving the Assam-
NRC process.

12. Selections To Public Employment Should Be On The Basis Of Merit: Supreme

Court

A bench comprising Justices L. Nageswara Rao and Indira Banerjee observed that the
selections to public employment should be on the basis of merit. "Appointment of persons with
lesser merit ignoring those who have secured more marks would be in violation of the Articles
14 and 16 of the Constitution of India," the Court observed while agreeing with the High Court.

In this case, the appointees to the posts of Police Sub-Inspectors, Attendants (Sergeant) and
Company Commanders by the Home Department of the Government of Jharkhand were
terminated on the ground that the select list was prepared wrongly by ignoring merit of
candidates and by giving undue importance to the preferences given by them. Allowing the
writ petition filed by these appointees who were terminated, the Jharkhand High Court
observed that they cannot be held responsible for the irregularities committed by the authorities
in the matter of their selection and there is no allegation of fraud or misrepresentation on their
part. The High Court dismissed these applications.

13. Wife Levelling Allegations Affecting Career & Reputation Of Husband Amounts
To Mental Cruelty Against Him For Seeking Divorce: Supreme Court

A bench comprising Justices Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy
observed that wife levelling allegations which affects career and reputation of husband is
mental cruelty against him for the purpose of seeking divorce. "The degree of tolerance will
vary from one couple to another and the Court will have to bear in mind the background, the
level of education and also the status of the parties, in order to determine whether the cruelty
alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party,"
the bench observed.

In this case, the husband, an army officer, in his divorce petition, alleged that he was subjected
to numerous malicious complaints by the wife which have affected his career and loss of
reputation, resulting in mental cruelty. The Family Court granted him divorce, but the High
Court reversed it. In appeal before the Apex Court, the husband submitted that the wife filed a
series of complaints against him before the superior officers in the Army upto the level of the
Chief of Army Staff and to other authorities and these complaints have irreparably damaged
his reputation and mental peace.