10-Year-Old Boy Asked to Take Off T-shirt With Image of Snake on it Before Boarding Plane

A 10-year old boy was asked to remove his T-shirt bearing the image of snake by security officials at an airport. The incident occurred at OR Tambo airport in Johannesburg, South Africa.

Stevie Lucas was wearing a T-shirt with the image of a green snake. He was told by airport security that the T-shirt might cause anxiety among passengers and he has to take it off before boarding the plane.

Lucas then turned the T-shirt inside out and wore it. He was travelling from Pretoria to George in South Africa. 

His parents Steve and Marga told Daily Mirror that the security officers told them that T-shirts bearing image of snake were not allowed on board.

Lucas had come to South Africa from New Zealand’s Wellington to meet his grandfather.

Later, airport officers justified the move and said the have every right to determine if an object is harmful to fellow passengers and crew members.

Personal queries directly linked to ‘establishing citizenship’, said SC in 2005

Questions about a person’s place and date of birth, his parents’ names and their place of birth are meant to ascertain citizenship, the Supreme Court has held.

The court, in a 2005 judgment on a writ petition filed by present Assam Chief Minister Sarbananda Sonowal, has clearly held that these personal questions are directly associated with “establishing citizenship”. 

“In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship,” the judgment, authored by Justice G.P. Mathur for a three-judge Bench of the court, on July 12, 2005 held. Moreover, the court explained that these facts figured specially in the context of establishing citizenship because they “would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State”. In case of doubts about a person’s citizenship, the burden of proving that these facts were true was on the person concerned.

The government has so far denied any link between the National Population Register (NPR), which is to establish usual residency, and the National Register of Citizens (NRC), meant to establish citizenship. In fact, the NPR takes into account foreign citizens too. However, if the NPR form of 2020 carries these personal questions highlighted in the judgment, apprehensions raised in the public mind that the NPR is a stepping stone for a nationwide NRC become justified.

The 2005 judgment came just over a year after the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules of 2003 was notified in December 2003. The Rules clearly linked the NPR and the NRC. Rule 4(3) of the Citizenship Rules states that personal details collected for the 'Population Register' would be used in the preparation of the National Register of Indian Citizens.

The Citizenship Rules define 'Population Register' as a “register containing details of persons usually residing in a village or rural area or town or ward or demarcated area [demarcated by the Registrar General of Citizen Registration] within a ward in a town or urban area”. Rule 4(3) mandates that for “preparation and inclusion in the Local Register of Indian Citizens, the particulars collected of every family and individual in the Population Register shall be verified and scrutinised by the Local Registrar, who may be assisted by one or more persons as specified by the Registrar General of Citizen Registration”.

In UK Homeowner who damaged 90-year-old tree fined £60k

A HOMEOWNER who damaged a 90-year-old tree so badly it had to be felled has been fined more than £60,000.

Stephen Lawrence had made two applications to his council to fell the mature protected cedar, but both were refused by the council.

Despite warnings, he stripped the bark off the lower trunk, according to the council, and holes were drilled into the wood.

Chelmsford city council said the damage was so extensive it had to be felled — and took him to court.

Lawrence pleaded guilty to wilful damage to a protected tree at Basildon magistrates' court on December 12.

The defendant was initially fined £90,000, but this was reduced to £60,000 plus costs of £1,004.82 and a victim surcharge of £32, based on his early guilty plea.

Councillor Mike Mackrory, cabinet member for sustainable communities, said: ‘This is a significant fine which reflects the age and the value of the tree: to people in the local neighbourhood who enjoyed seeing it every day, to the flora and fauna who lived in it, and to the wider environment as trees like this are hugely important in absorbing carbon.

‘The sad thing is that at the point when the damage was first discovered, although the damage was extensive, the tree could still have survived.

‘It was the further attacks on it, after Mr Lawrence had been ordered to cease damaging it in the spring, which completely finished it off and meant that there was now no chance that this beautiful old tree could live.’

Calcutta High Court asks West Bengal government to take down all anti-CAA advertisements

HIGHLIGHTS

• Calcutta HC has asked Bengal govt to take down anti-CAA advertisements
• Calcutta HC has directed for suspension of all such ads till the next plea is heard on January 9
• The direction came after six pleas were filed against the advertisements

In what seems to be a setback for the West Bengal government, the Calcutta High Court on Monday directed all state-sponsored advertisements against Citizenship Amendment Act (CAA) and National Register of Citizens (NRC) to be removed from public platforms.

The court, in an interim direction, asked the Bengal government to suspend all such advertisements till the next plea is heard on January 9.

Conductor leaves bus for MA exam, loses job -GSRTC

A bus conductor, Nilesh Rabari, has lost his job for leaving the bus mid-trip to appear in MA exams hoping the degree would be his ticket for a better future.

Nilesh disembarked from the Gujarat State Road Transport Corporation (GSRTC) bus while on duty to take the exam. What's more, Nilesh used his cousin Umesh as his proxy to issue tickets to passengers. Both brothers were convicted for abetting and impersonating a government servant with a one-year jail term.

Last week, a city sessions case upheld the cousin brother's conviction but dropped their jail sentence.

The court acknowledged their good behaviour and observed the two had suffered a long trial at a very early age, which is punishment enough for them.

In this case, Nilesh, then 23-years-old was on duty on board the Halol-Ahmedabad GSRTC bus on April 28, 2012, night. When the bus reached Nadiad, Nilesh disembarked from the bus. As the bus carried on its trip, the driver noticed that somebody else was booking tickets for passengers instead of Nilesh. He immediately reported this to the control room and was asked to drive the bus directly to Ahmedabad depot.

Upon inquiry, Umesh revealed that Nilesh had got down midway to appear in MA exams in Anand and assigned his official work to him. The department lodged an FIR with Kagdapith police station against the duo. While Umesh was charged with impersonating a public servant under section 170 of IPC, Nilesh, the conductor, was accused of abetment under section 114 of IPC. The penal provision for this offence is up to seven-year jail term.

The cousins denied the charges and faced the trial, which lasted for five years. In April 2017, a metropolitan court found them guilty and punished them with a jail term of one year.

Supreme Court registers suo motu case to assess criminal justice system for sexual offences

The Supreme Court has registered a suo motu writ in a matter concerning the assessment of the criminal justice system in response to sexual offences (In re: Assessment of the criminal justice System in response to sexual offences).

Read Order

The Supreme Court Bench headed by Chief Justice of India SA Bobde, while registering the suo motu case, noted that after the Nirbhaya gang rape case of 2012, the conscience of the nation was shocked. However, despite the introduction of several amendments to the criminal justice system, the desired outcome of bringing down the instances of rape has not been achieved.

"As per the latest report of National Crime Records Bureau of Crime in India in the year 2017, total 32,559 cases of rape were registered in India. The delay in such matters has, in recent times, created agitation, anxiety and unrest in the minds of the people. The Nirbhaya case is not an isolated case where it has taken so long to reach finality In fact, it is said that it has been one of the cases where agencies have acted swiftly taking into account the public outrage."

The Court has felt the need to step in at this stage, to take stock of the situation on ground and of the implementation of these amendments of ground. In this regard, the Court said,

"It is necessary to call for information with regard to status of affairs at ground level from various dutyholders like investigation agencies, prosecution, medico-forensic agencies, rehabilitation, legal aid agencies and also Courts to get a holistic view to make criminal justice system responsive in the cases of this nature."

The Secretary General of the Supreme Court has also been directed by the Supreme Court to extend cooperation as regards calling for records from all the Chief Secretaries of all States, DG of Police of all States, and Registrar Generals of all High Courts.

The Court has called for records and status reports from all the States on various aspects of the criminal justice system in cases of sexual offences including the compliance of various guidelines issued on the same and amendments introduced, the manner in which cases of sexual offences are responded to and the procedure followed - at the investigative and trial stages. At the stage of trial, queries have also been posed regarding whether the courts have been ensuring the time-bound disposal of cases concerning sexual violence.

Importantly, Court has also asked whether the "Two-finger" test is still being put to use in cases of rape. As noted in the order passed by the Bench of CJI SA Bobde and Justices BR Gavai and Suryakant,

"Per-Vaginum examination commonly referred to as 'Two-finger test' has been held to be of no consequence and violative of the dignity of woman."

In this backdrop, States have been directed to respond "whether the medical experts have done away with the Per-Vaginum examination commonly referred to as 'Two-finger test' and whether any directions have been issued by the states in this regard?"

Other important queries on which status reports have been directed to be submitted include whether adequate protection is given to the survivors of sexual offences and other witnesses, regarding the obligations of of state legal services authorities in cases involving sexual offences, and concerning the obligation to provide legal aid,  medical/social counselling and rehabilitative services to the victims. In this regard, the Court has also asked if Nirbhaya Fund allocated by the Government is being used for the purposes envisioned.

The Apex Court has requested Senior Counsel Siddharth Luthra to assist the Court in the matter as Amicus Curiae. It has further requested Solicitor General Tushar Mehta to extend all assistance to the Amicus.

Sourav’s daughter puts out anti-CAA post, takes it down

BCCI president and former India cricket captain Sourav Ganguly's daughter Sana posted an Instagram story from her verified handle on Wednesday, which strongly opposed the Citizenship Amendment Act (CAA). The 18-year-old quoted the words of writer-historian Khushwant Singh’s work of non-fiction, The End of India (2003), to underline her dissent. The post was later taken down.

"Every fascist regime needs communities and groups it can demonize in order to thrive. It starts with one group or two. But it never ends there. A movement built on hate can only sustain itself by continually creating fear and strife," posted Sana, a trained Odissi dancer like her mother Dona. She has over 68,000 followers on Instagram.

“Those of us today who feel secure because we are not Muslims or Christians are living in a fool’s paradise. The Sangh is already targeting the Leftist historians and “Westernized” youth. Tomorrow it will turn its hate on women who wear skirts, people who eat meat, drink liquor, watch foreign films, don’t go on annual pilgrimages to temples, use toothpaste instead of danth manjan, prefer allopathic doctors to vaids, kiss or shake hands in greeting instead of shouting ‘Jai Shri Ram’. No one is safe. We must realize this if we hope to keep India alive,” Sana's Instagram story read.

SC Refuses To Stay Citizenship (Amendment) Act 2019, Issues Notice On All Petitions

Supreme Court on Wednesday issued notice to all petitions challenging the Constitutional Validity of Citizenship (Amendment) Act 2019.

the Bench has refused to stay the operation of the Act till the disposal of the matters. The Bench comprising CJI Bobde and Justices BR Gavai and Surrya Kant asked the Centre to file the response by the second week of January. The Petitions contended that the Act, which liberalizes and fast-tracks grant of citizenship to non-Muslim migrants from Pakistan, Bangladesh and Afghanistan, promotes religion-based discrimination.

Read CAB amendments

Religion must be construed as pan India, not on political boundaries of States.-SC

The Supreme Court today dismissed the petition filed by Advocate Ashwini Kumar Upadhyay seeking declaration of Hindus as minorities in eight states of India.

Upadhyay's petition has also sought for extension of benefits given to minority communities to the Hindus in these eight states where other communities are in majority.

The Supreme Court Bench of CJI SA Bobde with Justices BR Gavai and Surya Kant, while refusing to entertain this petition, said that the Court has never held that religious minority status must be decided in accordance with state boundaries. CJI Bobde said,

"Religion must be construed as pan India, not on political boundaries of States."

The petitioner's request for guidelines for identification of minorities in States as units was turned down by the Supreme Court. The Court said,

"Who doesn't know who is Hindu, who is Muslim... You need guidelines to tell you who is Hindu, who is Muslim etc.?"

The PIL filed by Ashwini Kumar Upadhyay had prayed that minorities be identified based on their status in a State.

It sought a direction to be issued to the Central government to define the term "Minority” and lay down guidelines for identification, to ensure that only those religious and linguistic groups that are socially economically and politically non-dominant and numerically inferior may enjoy rights and protections guaranteed under Articles 29-30.

To this end, the petitioner has prayed for the striking down of Section 2(c) of the National Commission for Minorities Act, 1992.

He has also prayed for the quashing of a notification issued by the Central government in 1993 by which Muslims, Christians, Sikhs, Buddhists and Zorastrians were notified as minorities.

The Supreme Court had earlier granted liberty to Upadhyay to make a representation before the National Commission for Minorities.

Accordingly, Upadhyay had presented four prayers before the Commission included defining of minorities in accordance with the United Nations General Assembly resolution of 1992, formulation of guidelines for identifying minority communities at the state level, and declaration of Hindus as minorities in states where they are not in majority.

In July, this year, the Commission informed the SupremeCourt that it does not have the jurisdiction to declare Hindus as minorities in states where they are not in the majority. The Commission's response further elaborated that the repository to declare a community as a minority lies with the Centre and this power cannot be usurped by the Commission.

The body also added that in a 1999 judgment in the case Bal Patil vs Union of India, the Supreme Court had directed the Commission to desist from entertaining such claims from different communities and to instead work towards proposing ways to create such social conditions that would lead to doing away with the majority-minority divide.

Expelled MLA Kuldeep Singh convicted in Rape charges

A Delhi Court today convicted expelled BJP MLA Kuldeep Singh Sengar in the 2017 Unnao rape case.The Court has convicted Sengar for commission of offences under Section 376 of the Indian Penal Code and Sections 5(c) and 6 of the Protection of Children from Sexual Offences (POCSO) Act.

The order was passed this afternoon by District and Sessions Judge Dharmesh Sharma.

However, the Court acquitted co-accused, Shashi Singh, after extending her the benefit of doubt.

The Court stated that the prosecution has successfully proved that the rape survivor was minor and that she was sexually assaulted by Sengar.

While convicting Sengar, the Court rejected Sengar's alibi that he was not present at the place of the crime. The Court observed that as per Sengar's mobile record, he was at such a distance from crime scene which was "easily coverable". The Court also rejected the defence objections that the crime was reported much later and that it was orchestrated by the survivor's uncle. The Court observed that the survivor did not "utter any word" in view of the threat to her life and her family.

The trial in the case was held in-camera. The matter would be taken up next on December 17 on the point of sentencing.

The Unnao rape survivor, a minor, was allegedly kidnapped and raped by Sengar between June 11-20, 2017. She was then sold for Rs. 60,000, after which she was recovered at the Maakhi police station.

The survivor was thereafter continuously threatened and warned by the police officials against speaking, as instructed by Sengar.

After running from pillar to post, an FIR finally came to be recorded against Sengar under Sections 363, 366, 376, 506 IPC and 3/4 of the POCSO Act in April 2018. The Allahabad High Court even ordered the arrest of Sengar for the alleged rape of the 15-year-old survivor in 2017.

Madras HC Madurai bench on anticipatory bail on SC/ST Act

The Madras High Court recently clarified that High Courts still retain the authority to grant anticipatory bail when it comes to cases under the Scheduled Castes and the Schedules Tribes (Prevention of Atrocities Act), 1989 (SC/ST Act). The clarification was prompted in view of Sections 18 and 18A of the SC/ST Act, which bars the application of Section 438 of the Code of Criminal Procedure (CrPC) when it comes to offences under the Act. Section 438, CrPC deals with the grant of anticipatory bail.

Full judgment 

https://drive.google.com/file/d/18sjJF22a44AkmiVOhzP4sPEYTpt9YZlG/view?usp=drivesdk

Passport, voter card prove citizenship :Court

Holding that passports and voter identity cards are sufficient proof of citizenship, a magistrate court has acquitted a father and son accused of illegally entering the country from Bangladesh.

Mohamed Mulla (57) and Saiful (23) were arrested in 2017 after police received a tip-off about “Bangladeshi infiltrators” living at Shivaji Nagar in Mumbai. The cops claimed they spoke in a language native to Bangladesh and could not produce sufficient documents to prove that they were Indian citizens.

But the duo presented Indian passports and voter ID cards in court. “To my mind, the passport is a document sufficient to prove the nationality of accused No. 2 (Saiful). Similarly, the voter card or the election card used to be issued in favour of the voter on the declaration that he is citizen of India. The document is sufficient to prove the nationality of accused Mohamed,” said the court.

Ration card, Aadhaar not enough to prove nationality

It clarified that other documents such as ration card, Aadhaar card and other identity cards are not enough to prove nationality. While Aadhaar card does not confer any right or proof of citizenship, the ration card is issued only on “humanitarian grounds” for protecting the persons from starvation and cannot be termed as proof of citizenship. “However, at the time of issuance of passport, the authorities verify the nationality and other relevant factors of the applicant,” said the court.

Ruling in favour of the Mullas, the court held that police had not produced any evidence to show that the documents were fabricated or forged. “I have arrived at the conclusion that the prosecution miserably failed to prove that the accused persons are foreigners and that they had entered India through unauthorised routes without holding valid documents.”

J & K high court issue contempt notice over lawyer’s strike

The Jammu and Kashmir High Court recently castigated lawyers reported to have actively obstructed litigants and other lawyers from accessing District courts and the High Court by blocking gates, pursuant to an indefinite strike. Taking critical note of the same, the Court observed,

"Despite the mandate of the law laid down by the Supreme Court, open threats are yielded by unruly elements in the Bar that the Bar Association is a strong one and lawyers would be removed from its  membership if they chose to oppose the strike call or appear in courts. The entire justice dispensation system in Jammu has been held to ransom ....

In view of the afore noted pronouncements of the Supreme Court reported in (2003) 2 SCC 45 titled Ex. Capt. Harish Uppal vs. Union of India &Anr;(2017) 5 SCC 702 Hussain &Anr. vs. Union of India, & Ors. and 2018 SCC Online 304, Krishnakant Tamrakar vs. State of M.P, the mere call for meeting, or the very decision to proceed on strike; remaining absent from court and boycott of judicial proceedings; locking the courts, preventing entry to those wanting to enter are completely illegal rendering all persons responsible for the same for appropriate action as mandated by the Supreme Court of India. "

On Wednesday, the Bench of Chief Justice Gita Mittal and Justice Rajesh Bindal also asked four advocates, S Baldev Singh, Nitin Bakshi, Azhar Usman Khan and Mahinder Singh Palli to explain why they should not be held liable for criminal contempt, after being informed that they were spearheading the protestors and enforcing the closure of gates to courts. The order passed notes that,

"Their arrogance is to the extent that they actually put a lock on the main gate and removed its key which was kept in their custody ... [the] Conduct of these advocates of locking the District courts and preventing the litigants in civil cases, under trials and lawyers from accessing the courts is a very serious matter and cannot be ignored...

... This conduct tantamounts to criminal contempt of court in terms of the law laid down by the Supreme Court of India."

The Bench was acting on various reports received from the Court Registry and the District and Sessions Judge, Jammu.

Following a indefinite strike called by the Jammu and Kashmir High Court Bar Association, it was informed that the main entrance gate of the  District Courts building complex in Jammu was blocked on November 4. Similar obstruction was posed in the following days as well, despite personal intervention by the  Principal District Judge.

On November 6, the striking lawyers had also started physically checking identity cards of those who wanted to enter into the Court building, it was informed.  Similar difficulties continued in the following dates. The High Court was unequivocal in castigating the conduct of the lawyers during the strike, remarking that,

"As a result of the locking of the main gate from 4th November, 2019, these striking lawyers have actually pushed back the criminal justice system in the District Courts, Jammu irretrievably. They have also caused multiplication of the work of the Court, court officials and the police authorities who shall have to use valuable resources and time in attempting to serve those accused persons whose cases were listed on the days the main door of the court was locked and their entry prevented ... cases which are time bound are also being adjourned."

The Court also took note that the striking lawyers attempted to carry out similar obstruction in the High Court as well,

"... an effort to similarly obstruct lawyers and litigants even in the High Court was unsuccessfully attempted by shifting sofas, which are court property, from their assigned places, to be used as barricades at access points within the court. We are informed that these sofas could not be used to completely prevent litigants. However, active measures were attempted to completely obstruct willing lawyers from appearing in the Court." 

The High Court proceeded to detail how such behaviour is contrary to the law laid down by the Supreme Court, starting with the ruling in Ex. Capt. Harish Uppal vs. Union of India & Anr, wherein int was declared that it is only “in the rarest of rare cases”, “where the dignity, integrity and independence of the Bar and/or the Bench are at stake that courts may ignore a strike. In that case, the Supreme Court had held that even when a strike is called for, it cannot exceed one day and further, that it cannot be forced on other lawyers and litigants. In this backdrop, the Court highlighted,

:... a lawyer obstructing or preventing another lawyer from appearing in the court commits a criminal offence. His act tantamounts to interference with the administration of justice and by his obstruction he has also committed contempt of court. Such lawyer has rendered himself liable to be proceeded against for both."

The Bench also took note that such strikes are being carried out in violation of Rule 4 of the  Jammu and Kashmir Advocates (Regulation of Practice in the High Court and Subordinate Courts) Rules, 2003.

"Unfortunately, these rules have remained in the rule book without being worked or applied in the event of contraventions. The result is the terrible situation that we are faced with today," the order states. 

Notably, the Court also intimated that action would be taken against Senior Advocates found to who have encouraged strike calls, including withdrawal of Senior designation. The Bench observed,

"Senior advocates are expected to lead the younger members of the Bar by example, so far as following law is concerned. Therefore, use of social media to incite young advocates and members of the Bar into abstaining from work; boycotting court(s); leading sloganeering within the premises of the Court; locking courts etc. by any senior counsel would not be acceptable conduct from persons who have been honored by the High Court in awarding them the special status of senior advocates."

Interestingly, the Bench also observed that frequent condolence references were also adding to prolonging court proceedings. In this regard, the order states,

"The practice in this court of holding repeated condonence references would therefore be contrary to the mandate of the directions of the Supreme Court of India.  We find that full court references are held in this court irrespective of whether the lawyer who has demised ever practised in the High Court or did not have an active practice in this court. Our oral missives on this count have evoked no response."

The Court concluding on a hopeful note that  good sense and conscience of the members of the Bar would prevail and they would conduct themselves in accordance with law ensuring  the rights of the public guaranteed under the Constitution.

However, in view of the unpardonable and contumacious conduct of the striking advocates in obstructed court access, the High Court has asked the four named advocates to respond in two weeks why action should not be taken against them for criminal contempt. Further, it has also been queried why they should not be proceeded against under the Jammu and Kashmir Advocates (Regulation of Practice in the High Court and Subordinate Courts) Rules, 2003 and provisions of the Indian Penal Code.

Further, the Court has also directed the production of up-to-date reports regarding the obstructions to court access, as well as CCTV footage and photographs on the same.

The Registrar of IT has been directed to collect postings on social media inciting violence/abstention from work by advocates. A report on the same is to be place before the Court.  Additionally, the Registrar General has been directed to circulate all judgments referred to in the High Court order on the mandate against court strikes to  all Bar Associations Jammu and Kashmir and Ladakh, and to all Principal District & Sessions Judges for compliance.

Citizenship Amendment Bill 2019

The contentious Citizenship Amendment Bill 2019 has now become an Act with the Centre notifying it in the official gazette late night on Thursday, following the assent granted to it by  President Ram Nath Kovind.

The bill was cleared by the Rajya Sabha with 120 supporting votes and 105 opposing votes on Wednesday. The Lok Sabha had passed it on Monday with 311 'ayes' and 80 'noes'.

The controversial law liberalizes the grant of citizenship for non-Muslim migrants from Pakistan, Bangladesh and Afghanistan who had entered India before December 31, 2014. As per proviso introduced in Section 2(1)(b), they will not be regarded as 'illegal migrants'.

North eastern states of Assam, Tripura and Meghalaya are witnessing violent protests against the Act . Curfew is in force in many regions.  Internet shutdown has been imposed. Rail and air connectivity to these regions have also been snapped.

This Act makes migrants belonging to Hindu, Sikh, Buddhist, Parsi, Jain and Christian religions from Pakistan, Bangladesh and Afghanistan eligible for citizenship by naturalization if they can establish their residency in India for five years instead of existing eleven years.

This is proposed citing the reason that religious minorities in these countries have been fleeing to India due to fear of persecution.

Regions of north east which come under Schedule 6 of the Constitution are exempted from the application of the Act. Also, the areas covered by 'Inner Line Permit' under the Bengal Eastern Frontier Regulation 1773 are also excluded from the Act.

This exclusion is given apparently in view of the protests from North-Eastern states against the previous Citizenship Amendment Bill, which was cleared by the 16th Lok Sabha in January 2019. That bill had triggered violent protests in North-Eastern states on the ground that it will legitimize the stay of several illegal migrants, disturbing the local demographics. 

However, major portions of Assam and Tripura come under the present Act.

Hindustan Antibiotics Limited and Insolvency Procedures

The Bombay High Court will decide if National Company Law Tribunal (NCLT) can initiate insolvency proceedings against Government Company under the Insolvency and Bankruptcy Code, 2016 (IBC).

In doing so, the High Court recently stayed proceedings against Hindustan Antibiotics Limited, a public sector Pharmaceutical Company before NCLT Mumbai Bench.

A Division Bench of Justice SC Dharmadhikari and R I Chagla was hearing an interim application by the company seeking a stay on insolvency proceedings initiated by employees under section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC).

The applicant Company also sought from Court to restrain respondent employees from taking further steps for recovering their alleged dues until the final disposal of the writ plea, which was filed by Hindustan Antibiotics in May this year. Moreover, in its application, Hindustan Antibiotics has claimed that Sections 3(8), 3(23), 7, 8, 9 and 238 of IBC are unfair, illegal, drastic, unreasonable and arbitrary and are in direct conflict with statutory provisions of Companies Act, 2013.

The counsel for the Hindustan Antibiotics submitted that it is an entity under the direct control of the Central Government for administration, policy-making and all aspects dealing with the management and day to day affairs.

Furthermore, the petitioner company had submitted before the NCLT that there are intricate, legal and constitutional issues involved and substantive plea challenging provisions of IBC, particularly, its applicability to Government Company or public sector entity is pending before the High Court.

In this regard, it was argued that the composition and constitution of the company being peculiar, IBC ought not to be applied to the Hindustan Antibiotics.

The Court noted, after perusing contentions, that the NCLT Bench comprising the Member (Judicial) and Member (Technical) were divided in their opinion since they could not agree on applicability of the Code. Thereafter, President of NCLT, Delhi nominated a third member (Judicial) of the Mumbai Bench to take up the matter.

In this backdrop, the company had filed a writ plea before the High Court and argued that NCLT proceedings are without jurisdiction from inception and in light of the constitutional challenge, the NCLT could not have taken cognizance of the plea by employees.

Senior Counsel Debabrata Ray Choudhari for Hindustan Antibiotics contended that the third member of NCLT is likely to retire by end of this month (December 2019).

“If in his haste, he passes an order, the entire petition before this Court could be rendered infructuous,” argued Choudhuri.

On the other hand, the respondent employees argued that the company has committed a default in making payments along with interest. In this regard, it was submitted that they are admitted dues and the sum has not been paid by the Government Company.

After perusing submissions and material on record, the Court refused to express an opinion on the maintainability of the proceedings before the NCLT.

Moreover, the Division Bench noted that it cannot prevent the Government Company from proceeding with the writ plea irrespective of orders passed by the NCLT. It held that the Tribunal should not precipitate the matter and noted,

“That the NCLT exercises the jurisdiction conferred on it by the IBC is undisputed. That such an issue with regard to the constitutional validity of the provisions of the IBC, therefore, cannot be decided by the National Company Law Tribunal which is but a creature of the IBC.” 

Justice Dharmadhikari further noted that prima facie the issue is not concluded by the judgement in a case decided by the Supreme Court in Hindustan Construction Company Ltd. vs. Union of India relied on by the respondent employee.

The Court went on to note that it needs to probe a little deeper with respect to the said judgement to decide whether it clinches the issue against the petitioner Hindustan Antibiotics.

As a result, the Court held,

“For all these reasons, we do not think that the NCLT would be well advised in proceeding with the matter. We think that the petitioner has made out a strong prima facie case for grant of interim relief and balance of convenience is also in its favour. It will suffer grave loss, irreparable harm and injury in the event the proceedings are concluded.”

Ultimately, the Division Bench proceeded to pass an interim order and ruled that there will be a stay on the proceedings in the plea filed by the employees before the NCLT Mumbai Bench until further orders.

The Court also issued a notice to the Attorney General for India to argue on the constitutional validity of the provisions of IBC challenged by the employees. The Additional Solicitor General Anil Singh is likely to argue during the next hearing on January 22, 2020.

Woman’s rights in live-in relationship

The relationship is not bound by legality of marriage, but the woman and her kids can claim their rights under the law.

In a marriage that goes sour and ends in a split, it’s often the woman who gets the short end of the stick. Typically ill-informed about her rights, she cedes them to the partner and invites financial insecurity for herself and her children. It’s easy to assume then that her situation would be worse in a live-in relationship. However, over the years, Indian courts have stood up for the rights, financial and otherwise, of a woman who is in a live-in relationship.

Woman’s rights in a marriage: There are six basic rights that a married woman can lay claim to for her financial, physical and emotional security. These include the right to maintenance for herself and her children, to the matrimonial home, to streedhan, to living with dignity and respect, to a committed relationship and parental property. The right to maintenance is covered under Section 125 of the Criminal Procedure Code. After divorce, maintenance is covered by the Hindu Marriage Act, 1955 (2) and the Hindu Adoption and Maintenance Act, 1956. The Protection of Women from Domestic Violence Act, 2005, covers all forms of physical, mental, emotional and economic abuse and neglect.

Maintenance rights in a live-in relationship: 

After the recommendations of the Malimath Committee in 2003, Section 125 was incorporated in the Criminal Procedure Code to alter the meaning of ‘wife’ and expand it to include women who were in a live-in relationship. This ensured that her financial needs were taken care of by the partner if she was unable to maintain herself or if the relationship became estranged. Similarly, protection against all forms of abuse is covered under the Domestic Violence Act, 2005, as it is for married women.

Right to property: 

The woman’s right to parental property is covered by the Hindu Succession Act, 1956, after it was amended in 2005. This gives her the same rights as a son to ancestral and self-acquired property, irrespective of her marital status. So, whether she is married, unmarried or in a live-in relationship, the right to ancestral property will accrue to her by birth, while the self-acquired property will be distributed as per the will.

Children’s inheritance rights: 

In 2014, the Supreme Court said that if a man and woman lived like husband and wife for a long period and had children, they would be considered legitimate. While personal laws don’t offer maintenance to kids born in live-in relationships, they are given protection under Section 125 of the Criminal Procedure Code. As for property rights, Section 16 of the Hindu Marriage Act provides legitimacy to children born out of marriage. This means that these kids are legal heirs to both ancestral and self-acquired properties.

Man secures job using fake degree, bank files complaint

A nationalised bank through its HR manager on Saturday filed a complaint with Madhavpura police alleging that a 29-year-old man from Motera has obtained a job of junior associate in the bank after submitting a forged degree from a university in Rajasthan.

In the FIR filed with Madhavpura police, Himanshu Mehta, 57, the HR manager with regional business office (RB) of SBI in Shahibaugh, states that the accused Uday Arora, 29, a resident of Mahengibanagar in Motera, worked in the bank for around 10 months by getting the job of junior associate, a clerical job, on forged degree.

The FIR states that Arora had applied for the job in the physically handicapped person’s category and passed written the test and interview. He was selected for the job on November 3, 2018 and was sent for required training at Gandhinagar for a month.

On December 3, 2018, he was given a posting at the Cantonment branch in the Shahibaugh area. As the manager of the Cantonment branch started the verification procedure of Arora’s document, he wrote a letter to the Rajasthan university. The officials from Rajasthan university wrote back to the branch manager in August 2019 stating that the degree seemed to be fake.

After this, the bank took up the issue with is senior officials and the Sabarmati branch manager was sent to the university in Rajasthan where the registrar of the university told him in person that the BA degree was forged, states the FIR.

The bank officials also instructed Arora to prove that the degree was genuine but he could not prove it. Later, the bank officials filed a complaint with the city police. Madhavpura police have registered a complaint of forgery and for producing forged documents as genuine and began an investigation.

Hyderabad Encounter: National Human Rights Commission (NHRC) has decided to take suo motu cognisance of the Encounter

National Human Rights Commission (NHRC) has decided to take suo motu cognisance of the Encounter

In light of media reports that the four people accused of the rape and murder of the veterinarian doctor in Hyderabad have been killed in a police encounter, the National Human Rights Commission (NHRC) has decided to take suo motu cognisance of the same. It was informed through a statement issued on their website that NHRC has taken note of the facts that have emerged and passed orders for a spot inquiry by its investigation team.

The statement highlights the facts that have come out through media reports and expressed its concern that the matter required to be probed very carefully.

"(The accused) have died in an encounter with the police at 3:00 AM this morning. As per reports, all four accused, were taken to the scene of the crime around 60 Km from Hyderabad for a re-construction as part of the investigation. Reportedly, as per police version, one of them signaled to the others, possibly to escape and they tried to snatch weapons from the police personnel when the police fired on them and they died allegedly in cross firing."

NHRC has asked the Director General of the Investigation Division of the Commission to send a team, headed by an SSP to leave for the spot immediately, find facts and submit its report at the earliest. It was further informed that NHRC has sought detailed reports from "all state governments, police heads as well as from the Union Ministry of Women & Child Development" after having "taken cognisance of the increasing cases of rapes and sexual assault on women across the country".

NHRC also noted that though the accused had been arrested during investigation, a court of law had not passed a judgment yet. If they were to be found guilty, they would have been punished in accordance with the law, "pursuant to the directions of the competent court."

Expressing that the "death of four persons in alleged encounter with the police personnel when they were in their custody" was a matter of great concern, the Commission also noted that the manner in which the encounter took place indicates that the police officials were not alert and unprepared for any untoward activity by the accused.

Alluding to the public outrage regarding the increasing crimes against women, the commission acknowledged the atmosphere of fear and anger, but cautioned that "loss of human lives even of a person arrested by the police under law, in such circumstances, would definitely give a wrong message to the society."

Referring to the Constitution of India, the commission invoked the right to life and equality, and urged law enforcement agencies to keep the human rights angle in mind while dealing with persons in their custody.

"The Commission has already expressed its view that there is lack of "Standard Operating Procedure" to immediately respond to the panic situations by the police authorities. The Commission has been insisting upon all law enforcing agencies to keep human rights angle in their view while dealing with the persons arrested by them or being kept in their custody. The right to life and equality before law are the basic human rights recognized and granted by the Constitution of India."

Wearing helmet is now optional in Gujarat cities

However, helmet is mandatory when travelling in highways or village roads. 

After slashing fines for traffic violations, the Gujarat government has now decided to make wearing helmets optional in urban areas of the State.

To be specific, helmets will be optional in municipal corporations and within municipality limits as per the decision taken by the State government. 

“We received many complaints regarding mandatory helmets within the city areas. So we decided to make it option only within the city areas,” Transport Minister R.C. Faldu said after the cabinet meeting.

He added that one needs to wear helmet when you head outside the city limits while driving on national or state highways, or even village roads.