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Resuming The Constitutional Dialogue

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‘Our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy. Sometimes it is argued, though, in a different context, that one can be a “rational anarchist”, but the said term has no term in the constitutional governance and the rule of law. Fulfilment of constitutional idealism ostracizing anything that is not permissible by the language of the provisions of the Constitution and showing to its spirit and silence with a sense of reawakening to the vision of the great living document is, in fact, constitutional renaissance”, observed Chief Justice Dipak Misra in his judgment in the famous Delhi Government case in 2018. Today, these words are very relevant for West Bengal, where the Governor and the Chief Minister are at odds on various issues, including their constitutional relationship and the exercise of powers. Their differences have in the public domain. Several constitutional pundits, political thinkers, and commentators rightly opine that the Governor and the Chief Minister should maintain cordial relations to perform their constitutional duties and advance the constitutional renaissance in the democratic order.

Last month, the Chief Minister of West Bengal Mamata Banerjee had blocked Governor Jagdeep Dhankar on Twitter. She was highly annoyed with Governor Dhankar, who has become a habitual critic of her government and does not hesitate to air his differences with the government in public and on social media platforms like Twitter. “Every morning and evening, the Governor is accusing and attacking us. As if he is the only supreme and we are bonded labourers. I cannot take it. I have blocked him today on Twitter”, Chief Minister Mamata Banerjee said in a press conference. She also accused the Governor of obstructing the functioning of her government. Chief Minister Banerjee also said, “We have been patiently suffering for the past year. The Governor has not cleared several files. He is keeping every file pending. How he can speak about policy decisions?”. Chief Minister Banerjee also said that she had written several letters to Prime Minister Narendra Modi and President Ram Nath Kovind to remove the Governor. Blocking the Governor on Twitter is not a solution to the problem. The Chief Minister must follow the constitutional means to express her objections against the gubernatorial excesses.

In a message sent to the Chief Minister Mamata Banerjee, Governor Jagdeep Dhankar responded to her critical remarks in these words: “Dialogue and harmony amongst constitutional functionaries is essence and spirit of democracy and mandate of the Constitution. This can blossom with mutual regard and respect. Therehas been all through personal regard for you from my side. I am sure this will receive your thoughtful consideration”. But the Chief Minister stood her ground and did not unblock the Governor on Twitter yet. She has also stopped meeting the Governor, why has created a crisis in the state. Unhappy with this attitude of Chief Minister Banerjee, Governor Dhankar wrote her a letter a few days ago and called her for interaction at the Raj Bhavan. “Dialogue, discussion, and deliberation, particularly amongst constitutional functionaries, like the Chief Minister and the Governor, are quintessential to democracy and inseparable part of constitutional governance. All my earnest efforts in this direction have unfortunately not fructified in view of the stance at your end. Such a scenario has the potential to lead to a constitutional stalemate which we both are ordained by our oath to avert. There has been no response, now for long, to issues legitimately flagged and in respect of which there is a constitutional duty at your end under Article 167 of the Constitution to impart information. There are other worrisome aspects also which call for urgent consultations”, said Governor Dhankar in his letter and urged Chief Minister Banerjee to resume the interaction and dialogue with him. Chief Minister Banerjee may also join the dialogue and present her views before the Governor privately.

Apart from these incidents, the Governor also returned Chief Minister Banerjee’s recommendation to summon the session of state legislative assembly on 7 March this year. The Governor took to Twitter and said he had returned the file for constitutional compliance. “Hon’ble CM Mamata Banerjee’s recommendation to summon assembly on March 7 had to be returned for constitutional compliance as Governor summons assembly on the recommendation made by the Cabinet after due compliance of Rules of Business under Article 166(3) of the Constitution”, Governor Dhankar said in a tweet.

Further, the Governor tweeted, “the file had endorsement only of Chief Minister. There was no Cabinet decision. In this situation, the only option I had was to send the file back to the government so that they send it back with constitutional compliances. As and when the government file will come, the matter will be considered in accordance with the Constitution”. It seems the Governor is too much Twitter-friendly and wants to put everything on social media platforms. These kinds of communications ought to be made in private, not on social media platforms. The Chief Minister is the head of the Cabinet who can easily take the post-facto approval of her decisions, and the Governor can communicate with the Chief Minister privately, not through Twitter.

Given the incidents mentioned earlier, the confrontation between the Governor and the Chief Minister in West Bengal is escalating day by day, and the time has when both constitutional functionaries may consider making serious efforts to restore the dialogue and communication. This aggressive approach is not suitable for the health of parliamentary democracy in the State. It sends a wrong message to the people. The Governor is the constitutional head of the State. At the same time, the Chief Minister is the real head of the government whose voice prevails in parliamentary democracy, but the Governor is also not a rubber stamp. The Chief Minister must also listen to his views and remarks. The Constitution assigns certain functions and duties to the Governor to preserve, protect, and defend the Constitution and the Governor is the main link between the Centre and the State. He has a constitutional right to seek any information relating to the state’s affairs from the Chief Minister as per Article 167 of the Constitution. The latter is duty-bound to furnish him such information, which will be very helpful for the Governor to brief the President of India properly about the state of affairs prevalent in West Bengal. However, the Governor cannot assign himself the role of a master of the elected government. He has no justification for putting everything on social media platforms. This is not expected from a Governor at all. A communication gap between the Governor and the Chief Minister must be minimized at the earliest and the onus is on both constitutional functionaries to end this crisis.

Both the Governor and the Chief Minister need to discharge their powers and functions as per the letter and spirit of the Constitution to strengthen the constitutional democracy in the State.

In addition, both functionaries need to exercise some restraint while exercising their constitutional powers and functions.

How can a Governor be justified to criticize the policies and decisions of an elected government on social media platforms? If he finds something objectionable with the functioning, policies, and decisions of the elected government, he has a constitutional right and a duty to communicate his views to the Chief Minister through constitutional channels, and the latter is duty-bound to consider his views.

The Governor has no reason to use his Twitter handle as a megaphone for his dissatisfaction against the elected government. Sometimes there may be genuine differences between the constitutional functionaries on certain issues, but such differences should never be made public. All constitutional functionaries should maintain courtesy and dignity in their respective areas, given the fundamental objectives of constitutional morality. There should always be a constitutional trust between them and they must strengthen the constitutional values to serve the people who are sovereign in a democracy. This is how the constitutional authorities can advance the constitutional renaissance in a democratic society. The constitutional relationship among the high constitutional functionaries should be bound by constitutional propriety, courtesy, and decorum.

Therefore, Chief Minister Banerjee and Governor Dhankar may consider restoring constitutional dialogue, conversation, and interaction to strengthen democratic values. A mutual understanding and respect are a must to run the administration to serve the people of West Bengal. A chat over tea/coffee at Raj Bhavan might help. Let me conclude this discussion with these poetic lines of famous Urdu poet Nida Fazli: “Dushmani lakh sahi khatam na kije rista, dil mile ya na mile hath milate rahiye”.

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Legally Speaking

‘The crime committed has to be considered in the remission or premature policy of the state’

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission which is applicable in the State and the pre­mature release in terms of the policy

The Court noted while hearing the writ petition that in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release, as the case may be, in the instance case. under Section 432(7) CrPC, there cannot be a concurrent jurisdiction of two State Governments, can be either the Central or the State Government of the appropriate government.

in terms of Section 432(7) CrPC, the trial was to be concluded in the same State and ordinarily in the State of Gujrat the crime in the instant case was admittedly committed. by an order 06.08.2004., the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State i.e., the State of Maharashtra, observed by the bench of Apex Court.

As mentioned by the petitioner in the plea that by judgment impugned dated 17.07.2019., the application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat and His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. under Sections 433 and 433A of the Code of Criminal Procedure, 1973, the petition was filled by the petitioner for premature release further the petitioner stated that that he had undergone under the custody of more than 15 years 4 months.

Section 302, 376(2) (e) (g) and reading it with Section 149 IPC, Shah was found guilty for the offence, the offence committed by him in the State of Gujrat.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

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Seeking reduction of qualifying the percentile for admission in ayurveda course: A plea in Supreme Court

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The Supreme Court in the Case Amit Kumar v UOI & Or’s observed in Ayurveda course in view of large number of vacancies and for seeking reduction of qualifying percentile for admission, an ayurveda aspirant who appeared in NEET 2021 has approached the Court.

the court had observed that lowering the minimum marks and reducing the percentile for admission to first year BDS Course would not amount to lowing the standards of Education and further the Court directed to lower the percentile mark by 10 percentiles for admission in first year of BDS Course for academic year 2020-2021, with regards to substantive the contentions made by the petitioner by referring the judgement passed in the case in Harshit Agarwal & Or’s v Union of India.

the percentile may also be reduced for Ayurveda programme enabling the Petitioner to take admissions then If percentile is being reduced/considered for reduction for BDS course was further stated by the petitioner in the plea, while referring to an order dated 04.29.2022. Thereafter the top Court had asked Centre to consider lowering the percentile for BDS Courses.

Seeking the Centre’s response in a plea by filing a counter affidavit, noted by the Top Court specifying the above-mentioned information:

after deducting the admission granted for MBBS Courses (BDS Courses), the total number of Candidates.

in All India Quota and State Quota, the totals number of vacant seats.

in government colleges on one hand & private/deemed colleges on the other hand, the number of seats which are remaining.

the petition was filed through AOR Neeraj Shekhar and for the petitioner Advocate Shivam Singh appeared.

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Bank case rejected by Supreme Court against farmer

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The Supreme Court in the case Bank of Maharashtra & Or’s v Mohanlal Patidar observed an order given by the High Courts of directing the bank the OTS proposal given by a farmer who had availed a loan from the bank, the court further pulled up the Bank of Maharashtra for challenging the order.

The Bank shall complete remaining formalities and provide all consequential benefits flowing therefrom to the petitioners, the court further stated that it is needless to emphasize The OTS proposal given by the petitioners in both the cases shall be accepted by the Bank and ‘sanction letters’ be issued forthwith, the court allowed the petitioner plea.

The petitioner not only promptly challenged the said order, it is noteworthy that petitioner never acceded to the unilateral decision dated 25th August 2021 and even otherwise the letter dated 25th August 2021 is held to be illegal by us, clause-7 of policy cannot take away the fruits of OTS benefits, within two months from the date of issuance of order dated 22th September 2021, the petitioner filled the instant petition and further the court directed we are unable to give stamp of approval to the impugned orders and action of the Bank, observed by the bench comprising of Justice Sujoy Paul and the justice Dwarka Dhish Bansal while setting aside the impugned orders of the bank.

In an order dated 03.09.2021 it was stated and it showed that the petitioner was required to pay minimum 10% of the OTS amount within stipulated time and that he had deposited Rs.35,00,000/- out of Rs.36,50,000/- within the stipulated time, it was argued before the court by the counsel.

As full and final settlement of the dues, he will be required to deposit Rs.50.50 lakhs as he was informed by the Asset Recovery Branch of the Bank.

Whole law comes into place when a matter of farmers come as the down payment were also accepted and it was further stated by the bench in an oral remark You don’t file cases against the ones who loot 1000s of crores.

The respondent had obtained a loan and intended to pay it in terms of a One Time Settlement which was quantified as Rs 3650000/-. in furtherance thereof the respondent had deposited Rs 35,00,000 with the bank, in the above-mentioned matter.

The bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme, contended by the counsel further the counsel stated that the bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme.

The bench comprising of Justice DY Chandrachud and the justice Surya Kant observed and remarked while dismissing the plea assailing Madhya Pradesh High Court’s order dated 02.21.2022 Such a litigation in Supreme Court will spoil the families of farmers financially, Go after bigger fish.

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In Company Law the duomatic principle is applicable even in Indian context: Supreme Court

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The Supreme Court in the case Mahima Datla vs Renuka Datla observed and stated that it will be applicable even in the Indian context, if the same is consented by all members ‘strict adherence to a statutory requirement may be dispensed with if it is demonstrated in the Duomatic Principle.

It was therefore held that G.V. Rao never seized to be a Director of the Company in view of the acquiescence by Dr. Datla and he had withdrawn his resignation prior to its acceptance, the resignation dated 6th April 2013 was clearly not accepted by Mr. G.V. Rao, as it is clearly being showed by her conduct and there is overwhelming evidence to show that Dr. Datla had accepted Mr. G.V. Rao back into the Board, in this case the court noted.

anything the members of a company can do by formal resolution in a general meeting, they can also do informally, if all of them assent to it, as stated briefly in the Duomatic Principle as derived from the decision In Re: Duomatic Ltd further the court noted the case of Salmon v. Salmon Co. Ltd, as it was held in that case if a company is bound in a matter intra vires by the unanimous agreement of its members. As In Re the court noted that the Duomatic Principle as derived from the decision.

Mr. G.V. Rao continued to carry on as the Director in view of the acquiescence by Dr. Renuka Datla? And weather can the Duomatic Principle can be invoked to state that the issue of resignation of the Director had lapsed, as one of the issues being raise in the appeal filled before the Apex Court.

The High Court of Judicature at Hyderabad for the State of Telangana and Andhra Pradesh allowed the Company appeal filed by Dr. Datla and the court further issued the various directions as this petition was dismiised by the Board as only to ensure Dr. Datla doesn’t have sufficient shareholding to maintain a petition under Sections 397 and 398 of the Companies Act, 1950, as it was being approached by Dr. Datla to the Company Law Board complaining that the holding of board meetings was illegal as an attempt was made to increase the number of members in the Company.

there is no protest by Dr. Renuka Datla regarding attendance of Mr. G.V. Rao. Dr. Renuka Datla also participated in the Board Meetings dated 22nd August 2013 and 25th September 2013, without any protest for continuation of Mr. G.V. Rao as its Director as in the resolution passed. The latter which was placed in the meeting of the Board on 9th April 2013, seeking withdrawal of his resignation as on 6th April 2013, G.V Rao submitted his resignation letter and further which it was later withdrawn by G.V Rao on 9th April 2013. As on 20th March 2013 the late Dr. Vijay Kumar Datla as the directors of the Company were Biological E. Ltd are Dr. Renuka Datla and one G.V Rao.

The bench comprising of Justice Vineet Saran and the justice JK Maheshwari clarified that the said principle is only applicable in those cases wherein bona fide transactions are involved and that ‘Fraud’ is a clear exception.

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SUPREME COURT ASKS WEST BENGAL GOVERNMENT TO LOOK INTO REPORT OF OLDER WOMEN PUSHED INTO PROSTITUTION AFTER COVID IN SOUTH 24 PARGANAS

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The Supreme Court in the case Budhadev Karmaskar v. State of West Bengal and Or’s observed that women of older age groups are being forced into prostitution after the onset of the COVID-19 pandemic and further the court ordered the State of West Bengal to look into the issue that in South 24 Parganas District of West Bengal.

The traffickers who were finding it difficult to get hold of young women due to the lockdown had shifted focus and by taking advantage of their acute poverty which was being worsened by the pandemic engaged older women from West Bengal’s costa regions in prostitution. An article was referred by the Amicus, The Article covered the plight of the women in the Sunderban Delta region of West Bengal and stated and noted that the pandemic coupled with climate change is now pushing older women and even the grandmothers into the trade, the Article was published on the website of The Print.

The pandemic that has stretched on for more than two years, it was said by the activists working in the area and this made them vulnerable to traffickers who found it difficult to procure young women and minor girls and shifted focus to middle aged women from West Bengal’s coastal regions due to their abject poverty.

No precautionary measure are taken by the State Government though the State Government is aware it further request the State Government to look upon the issue as due to the pandemic In South 24 Parganas (West Bengal), aged women are being used for this purpose for their poverty.

The Bench asked the Counsel representing the State of West Bengal to look into this issue and respond when the matter is put up for hearing on 05.17.2022., At the request of the Amicus the bench directed.

The Bench Comprising of Justice L. Nageswara Rao and the justice B.R. Gavai observed that the older women in South 24 Parganas District of West Bengal, from poor families, especially after the onset of the pandemic, are being pushed into prostitution and the Amicus further alleged though the State Government aware of the same but the State Government have not taken any precautionary measures. The Bench noted while hearing a plea seeking various benefits for sex workers across the country, Amicus Curaie, Mr. Piyush K. Roy apprised it that, as per news reports.

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Supreme Court sets aside POCSO conviction; TN custom is of marriage of girl with maternal uncle

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The Supreme Court in the case K Dhandapani vs State observed while hearing a plea that after noticing that he had married the prosecutrix and had two children, a man accused in a POCSO case, the court set aside the conviction.

The Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix. Thereafter the Court said that it has been informed of the custom in Tamil Nādu of the marriage of a girl with the maternal uncle. if the accused-appellant does not take proper care of the prosecutrix, she or the State on behalf of the prosecutrix can move for modification of this Order, further being clarified by the Court. The bench is of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court, while considering the facts and circumstances of the Case.

The Court observed, while allowing the appeal that the marriage between the accused and the prosecutrix is not legal and it was submitted by the state in an appeal that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and the second child was born when she was 17 years.

the prosecutrix stated that she has two children and they are being taken care of by the appellant and she is leading a happy married life, the statement given by her was being noticed by the Court. the allegations submitted by the

the appellant against him was that he had physical relations with the prosecutrix on the promise of marrying her and that he married the prosecutrix and they have two children, submitted before the Apex Court.

Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012 and reading with the Sections 5(j)(ii) read with Section 6, 5(I) read with Section 6 and 5(n). the maternal uncle of the prosecutrix who is the accused in the said case was being convicted under the said sections and was sentenced to undergo rigorous imprisonment for a period of 10 years by the Madras High Court.

The Bench comprising of Justice L Nageswara Rao and the justice B R Gavai observed while rejecting the objection raised by the State which contended that the marriage might be only for the purpose of escaping punishment that the court have been informed about the custom in Tamil Nādu of the marriage of a girl with the maternal uncle and on the ground of reality and to disturb the happy family life of the appellant and the prosecutrix, The Court cannot shut its eyes.

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