The Supreme Court in the case Lok Prahari through its General Secretary V N Shukla IAS (Retd) vs Union of India and others observed and has sought a status report from the Union Government regarding the appointment of ad-hoc judges in High Courts under Article 224A of the Constitution of India.
It was stated that Article 224A of the Constitution enables a Chief Justice of a High Court, with the previous consent of the President and to request a former High Court judge to “sit and act as a judge” to hear the cases of the High Court. In the judiciary history of India, the provision has been invoked very rarely.
It was observed that the Supreme Court in April 2021, after taking note of the increase in vacancies in High Courts, had stressed on the need to appoint ad-hoc judges and a set of guidelines had been issued regarding the same. The Court issued directions in a PIL filed by an organization named “Lok Prahari”.
The bench comprising of Justice Sanjay Kishan Kaul, Justice AS Oka and the Justice Vikram Nath on September 14, 2022 sought a status report from the Union regarding any recommendation being made for ad-hoc judges.
Further, the bench also pondered on whether to relax the condition that there should be more than 20% vacancies to trigger the proceess of appointment of ad-hoc judges, while considering the fact that some High Court have large number of vacancies and are also being troubled with arrears in some specific subjects. Thus, the Attorney General was requested to address this aspect as well.
The court posted the case to September 27.
The bench passed the order recorded as follows:
It was submitted by Learned Attorney General that he needs sometime to file status report as to whether any recommendation on ad-hoc judges have been made and the fate thereof.
The court while seeing another aspect, with experience, the court is of finding that is that though we have put a bar of not more than 20% vacancies for making recommendation for ad-hoc judges, the fact remains that some of the Courts where there are large number of vacancies and are also troubled with arrears, in some specific subjects.
The court request the learned Attorney General to give a thought to this process as to how this particular aspect can be addressed. The court stated to list on 27th September, 2022 on the top of the Board.
The Supreme Court had laid down 5 trigger points which can activate the process under Article 224A, in the judgement delivered in April 2021.
Further, the court observed that the Trigger Point cannot be singular and there can be more than one eventuality where the it arises –
a. If there are more than 20% of the vacancies of the sanctioned strength.
b. The cases are pending for over five years in a particular category.
c. More than 10% of the backlog are over five years old of pending cases.
d. The percentage of the rate of disposal is lower than that of the institution of the cases either in a particular subject matter or generally in the Court.
e. Even if there are not many old cases pending before the court, but depending on the jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a time period of a year or more.
Accordingly, the court emphasized that ad-hoc appointments cannot be a substitute for regular appointments. Further, it added the objective is not to appoint ad-hoc judges instead of judges to be appointed to the regular strength of the High Court.
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Supreme Court: All Women Are Entitled To Safe And Legal Abortion, Distinction Between Married And Unmarried Women Unconstitutional
On Thursday, the Supreme Court in the case X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi observed and has declared that unmarried women are also being entitled for seeking abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship.
It was ruled by the Court that exclusion of unmarried women who conceive out of live-in relationship from the Medical Termination of Pregnancy Rules is unconstitutional.
The court stated while noting that the 2021 amendment to the Medical Termination of Pregnancy Act does not make a distinction between married and unmarried women, all women are entitled to safe and legal abortion.
In the present case, the issue relates to whether the exclusion of unmarried woman, whose pregnancy arises out of consensual relationship, from Rule 3B of the Medical Termination of Pregnancy Rules is valid. It was mentioned in Rule 3B the categories of woman whose pregnancy in the duration of 20-24 weeks can be terminated.
However, the distinction between married and unmarried women is unsustainable.
The bench comprising of Justice Chandrachud read out the excerpts of the judgment that if Rule 3B(c) is understood as only for married women, it would perpetuate the stereotype that only married women indulge in sexual activities. Thus, this is not constitutionally sustainable. It cannot sustain the artificial distinction between married and unmarried women. However, the women must have autonomy to have free exercise of these rights.
The Court added that the rights of reproductive autonomy give an unmarried women similar rights as a married women and the object of section 3(2)(b) of the MTP Act is in allowing woman to undergo abortion after 20 to 24 weeks. Including only married and excluding unmarried woman will be violative of Article 14 of the Constitution of India.
The Reproductive right part of individual autonomy
However, the foetus relies on the woman’s body to sustain and the decision to terminate is firmly rooted in their right of bodily autonomy. It will amount to an affront to her dignity, if the State forces a woman to carry an unwanted pregnancy to the full term.
The bench comprising of Justice D.Y. Chandrachud, Justice A.S. Bopanna and Justice J.B. Pardiwala in the case on August 23 had reserved judgment.
It stated that the law must be interpreted keeping in mind changing social mores
It was largely concerning the married woman, when the MTP Act was enacted in 1971 but as societal norms and mores change the law must also adopt. While changing the social mores must be borne in mind while interpreting provisions. It is indicated in social realities that the need to recognise legally non-traditional family structures.
The Judgment delivered on International Safe Abortion day.
A lawyer informed the bench that today happens to be the international safe abortion day, after the judgement was pronounced.
It was remarked by Justice Chandrachud, “We had no idea that this would coincide with safe abortion day. Thank you for informing us”.
Which are the categories of women to be included in Rule 3B?
(a) the survivors of sexual assault or incest or rape;
(b) the minors;
(c) the change of marital status during the ongoing pregnancy (divorce and widowhood);
(d) The women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)];
(e) The mentally ill women including mental retardation;
(f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such mental or physical abnormalities to be seriously handicapped; and
(g) The women with pregnancy in humanitarian settings or emergency or disaster situations as may be declared by the Government.
Accordingly, these categories were added in the MTP Rules by the Central Government following the 2021 amendment to the MTP Act, which raised the ceiling limit for termination of pregnancy.
Bombay High Court: Limitation Period Starts After Affixing Signatures On GST Registration Cancellation Order
The Bombay High Court in the case Ramani Suchit Malushte Versus Union of India and Ors observed and has held that the limitation period would start only after the affixing of signatures on the GST registration order of cancellation.
The Division bench comprising of Justice K.R. Shriram and the Justice A.S. Doctor observed and has stated that only on the date on which the signature of Respondent issuing authority was put on the order dated November 14, 2019, for the purpose of attestation and would time to file an appeal commence.
It was observed by the court that unless a digital signature is put by the issuing authority, the order will have no effect in the eyes of the law.
In the present case the petitioner/assessee assailed an order passed on August 2, 2021, but issued on August 4, 2021, by which the petitioner’s appeal was dismissed on the ground that it was not filed within the period of three months as it is provided under Section 107(1) of the CGST Act.
It was contended by the petitioner that the order in the original dated 14.12.2019, which was in the appeal filed before the respondent, had not been digitally signed. However, the said order was not issued in accordance with Rule 26 of the CGST Rules. Thus, the time limit for filing the appeal would begin only upon digitally signed orders being made available.
Further, it was specifically stated in the affidavit in reply that the show cause notice was digitally signed by the issuing authority, but when it refers to the order in the original dated 14.12.2019, there was total silence about any digital signature being put in by the issuing authority.
It was contended by the department that the petitioner could not take the stand of not receiving the signed copy because the unsigned order was admittedly received by the petitioner electronically.
However, the Court observed that if the stand of the department has to be accepted, then the rules which prescribe specifically that a digital signature has to be put in place will be rendered redundant.
Accordingly, the court while overturning the order, returned the appeal to the respondent’s file and instructing him to consider the appeal on its merits and issue whatever order he deemed appropriate in accordance with the law.
Supreme Court: Speaker Can’t Deny Pension & Other Benefits To MLAs While Disqualifying Them Under 10th Schedule
The Supreme Court in the case Gyanendra Kumar Singh and Ors. Versus Bihar Legislative Assembly Patna and Ors observed and has held that under the Xth Schedule of the Constitution, the Speaker of a Legislative Assembly does not have power to deny pension and other benefits available to a former MLA while deciding a disqualification petition against him.
The bench comprising of Chief Justice of India UU Lalit, Justice Ravindra Bhat and Justice JB Pardiwala observed while considering a set of appeals by then four JD(U) MLAs – Neeraj Kumar Singh, Gyanendra Kumar Singh, Rabindra Raiand Rahul Kumar, who were not only disqualified but was also denied for pensionary benefits on November 11, 2014 by the 15th Bihar Legislative Assembly Speaker.
The bench observed that in our our considered view, the Speaker was not within his jurisdiction to issue such directions (other than the direction of disqualification). Therefore, the court set aside the directions issued by the Speaker in Paragraph 28 of the order. The court have not gone into the question of disqualification and all questions are left open.
It was observed that since the 15th Legislative Assembly is no longer functioning, and the 17th Legislative Assembly is currently going on, the Court observed that it need not go into the basic issue that whether the order of disqualification issued by the speaker of the Assembly was correct or not.
According to the bench, before the court, the only question was to consider the effect of the directions issued by the Speaker in his disqualification order (apart from the disqualification) i.e., denying pension and other benefits.
During the hearing, the counsel, Senior Advocate Devdutt Kamat appearing for the appellants submitted that the directions issued by the Speaker on November 1, 2014 went beyond the scope of his powers.
The Counsel, relied on the Supreme Court decision in the case Shrimanth Balasaheb Patil vs Hon’ble Speaker Karnataka Legislative Assembly, the operative part of which reads that in exercise of his powers under the X schedule, the Speaker does not have the power either to indicate the period for which the person would stand disqualified or to bar any person from contesting in election.
Adding to it, the court asked the opposing counsel that, where does the Speaker get the power that pension can be withheld?
It replied, “They have been disqualified and that the same consequences flow in”.
The Court orally observed that we need not go into the issue of disqualification on the ground that whatever is there, whatever happened in Rome, happened there and once you come out and it’s not there…It’s not a permanent disqualification or a debarment or something. All it has been said by him is that the pension need not be stopped.
The Counsel, Kamant added, “Pension and other emoluments”.
It was stated by the speaker that the above 4 Hon. Members will not get any facility and that is not sanctioned.
Chhattisgarh High Court Clarifies: Writ Petition Can Be Dismissed Even After Admission; Alternate Remedy
The Chhattisgarh High Court in the case Mangali Mahinag v Sushila Sahu observed and has made it clear that there is no such rule that a writ petition, once admitted and it cannot be dismissed on the ground of availability of an alternative remedy.
The bench comprising of Justice Arup Kumar Goswami and Justice Deepak Kumar Tiwari observed that as proposition of law it cannot be countenanced that once a writ petition is entertained and admitted and the same cannot be dismissed on the ground of availability of the alternative remedy at the time of hearing.
Against the order of a single judge, the instant writ appeal was preferred wherein dismissing the writ petition filed by the Appellant on ground that there was an alternative remedy available.
It was observed that both the Appellant and Respondent had applied for the post of ‘Angwanwadi Karyakarta’. However, the petitioner was declared successful in the selection process, the Collector had set aside his appointment on an appeal made by the Respondent. Aggrieved with the same, the Petitioner had approached the writ court.
After admitting the petition, the Writ court relegated the Petitioner to avail alternative remedy. Thus, this appeal.
The petitioner relied on the case Durga Enterprises (P) Ltd. & Anr v. Principal Secretary, Govt. of UP & Ors., wherein the Supreme Court had held that the High Court having entertained the writ petition, in which pleadings were also complete, ought to have decided the matter on the merits instead of relegating the parties to a civil suit.
On the other side, it was argued by the State that there is no proposition in law that once a writ petition is admitted, the petitioner cannot be asked to avail alternative remedy. Further, it was submitted by the respondent that the facts and circumstances of each individual case will determine whether the Court would decide the writ petition or the petitioner would be asked to avail alternative remedy.
It was concurred by the High Court with the State’s submissions. The Court observed that the findings in Durga Enterprises (supra) were based on the fact that the writ petition was pending for a long period of 13 years.
Similarly, the court observed in the case State of UP v. UP Rajya Khanij Vikas Nigam Sangharsh Samiti that the issuance of rule nisi or passing of interim orders is a relevant consideration for not relegating the petitioner for availing an alternative remedy if it appears to the High Court that the matter could be decided by a writ Court.
In both the case, it was observed by the High Court that the Supreme Court did not lay down as a proposition that invariably whenever a writ petition is admitted, the matter has to be heard on merit and the writ Court cannot exercise discretion to relegate the petitioner to avail an alternative remedy.
Accordingly, the Court dismissed the writ appeal.
SC to begin hearing 300 oldest cases from Oct
In an effort to resolve pendency of cases in the Supreme Court, Chief Justice of India Uday Umesh Lalit issued orders on Wednesday asking that 300 of the oldest cases from October be listed for hearing.
The oldest such pending case dates back to 1979, and over 20 cases are from the period of 1990 to 2000.
The notification released by the Registry of the Supreme Court on Wednesday said, “Take notice that 300 oldest after notice matters of which list is appended below are likely to be listed before the courts on non miscellaneous days beginning Tuesday, October 11, 2022.”
The cases that will be listed also include a PIL that was filed in 1985 by lawyer and environmental activist MC Mehta and kept languishing in the Supreme Court’s records for almost 37 years. Most of the cases have either lost their significance as a result of the passage of time or because the immediate issue they attempted to address in their petitions was resolved long ago. However, these petitions persisted in the SC docket, increasing the Supreme Court’s statistics on cases still pending.
As of September 1, the Supreme Court has 70,310 cases outstanding, according to information posted on the court’s website.
The Chief Justice of India’s most recent ruling is a continuation of his efforts to clear out old cases and Constitution bench cases from the court system. Every Tuesday, Wednesday, and Thursday since becoming CJI on August 27, Justice Lalit has scheduled normal issues, which are older cases that have been lingering for more than ten years, in the morning session while the second half of the day is reserved for hearing of new matters.
To handle the majority of the 493 Constitution Bench cases (including connected cases) in the top court, CJI Lalit also formed five separate Constitution Benches, each with five judges. Of these, 343 are five-judge bench matters, 15 are seven-judge bench matters, and 135 are nine-judge bench matters.
RBI Directed Mahindra & Mahindra Financial Services To Cease Recovery Through Outsourcing Arrangements
The Reserve Bank of India (RBI) issued a press release on 22.09.2022., wherein directing Mahindra & Mahindra Financial Services Ltd. (MMFSL), Mumbai, to immediately cease carrying out any recovery or repossession activity through outsourcing arrangements, till further orders of the court. Therefore, the MMFSL may continue to carry out recovery or repossession activities, through its own employees. Further, it was stated that the action was based on certain material supervisory concerns observed in MMFSL, with regard to the management of its outsourcing activities.
Background of the Case
Mahindra & Mahindra Financial Services Ltd. (MMFSL) is a part of Mahindra & Mahindra group of companies and is at present led by Mr. Anand Mahindra. Thus, MMFSL is a Non-Banking Financial Company (NBFC), which provides Vehicle and Asset Finance to rural Indians and finances the purchase of new and pre-owned tractors, construction equipment, commercial vehicles and two wheelers.
Recently, it is surfaced in the news that a pregnant woman had died after she was allegedly mowed down under the wheels of a tractor by a recovery agent of MMFSL in Hazaribagh, Jharkhand. However, a loan has been taken by the deceased woman’s father from MMFSL and the outsourced recovery agents were attempting to recover the same while the incident had taken place.
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