The Supreme Court on Thursday allowed 10 days time to the Central government to file a counter-affidavit in a petition challenging the constitutional validity of conjugal rights.

A bench of Justices R.F. Nariman, K.M. Joseph and B.R. Gavai listed the matter for further hearing on July 22.

The petition has been filed by Ojaswa Pathak and Mayan Gupta, students of the Gujarat National Law University challenging the validity of the Section 9 (Restitution of conjugal rights) of the Hindu Marriage Act, Section 22 of the Special Marriage Act and related provisions of the Code of Civil Procedure. 

Senior Advocate Indira Jaising, appearing for the petitioners, submitted that the matter relates to the question of law over the validity of Section 9 of the Hindu Marriage Act, etc, and the same be adjourned to a shorter date.

The issue of whether the existing legal provisions – Section 9 and Section 13 of the Hindu Marriage Act, Section 22 of the Special Marriage Act and Order 21 Rule 33 of the Code of Civil Procedure – can be deemed as void and unconstitutional has come up before various courts, including the Supreme Court, ever since a nine-judge bench of the apex court passed its landmark Right to Privacy judgment on August 24, 2017.

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The plea stated, “Courts in India have understood ”Conjugal rights” to have two key ingredients: cohabitation and sexual intercourse. Under the legal scheme in India, a spouse is entitled to a decree directing his other spouse to cohabit and take part in sexual intercourse. He or she is also entitled to coercive measures in the form of attachment of property in case the spouses wilfully disobey the decree of restitution.”

“The provisions for restitution of conjugal rights are facially neutral in as much as they allow both the husband and the wife to move court. However, in effect, they are deeply discriminatory towards women. The direct and inevitable effect of the provision has to be seen in light of the deeply unequal familial power structures that prevail within Indian society,” the plea added.

The Supreme Court has granted a week’s time to the Centre to file a counter-affidavit on the request made by the Attorney General while hearing the petition filed by six Uttar Pradesh residents alleging the Uttar Pradesh Government discriminated against Hindus as welfare schemes worth of thousands of crores were initiated in favour of only some religious minorities.

The petition was listed before the bench headed by Justice R.F. Nariman. Advocate Vishnu Shankar, appearing on behalf of the petitioner, submitted before the Court that Union of India has to file a reply in compliance with the last order of the Court which they haven’t filed yet.

The counsel on behalf of the Union of India then prayed for a weeks’ time to file its reply and was granted the same by the Court. In its previous order Court issued notice to the Central Government, National Commission for Minorities and Central Waqf Council having an observation, “welfare schemes cannot be based on religion”.

The petitioners, Neeraj Shankar Saxena and five others, have submitted that the government cannot discriminate on the basis of minority among its citizens. Targeting specific minorities and alluring them by providing some beneficial program can be considered as the promotion of minorityism and this is ultra-vires the basic principles of the Constitution. The petitioners further emphasised on the threat of raising the thought of separatism that could lead the nation towards another division.

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The petitioners have also submitted that the Parliament cannot promote any religion or religious groups from taxpayers money. Though it has the power to make any law for the benefit of those communities who are found to be ‘socially and educationally backward’ under Article 15(4) of the Constitution of India but cannot make any law for the benefit of any religion maybe, for minority religious groups.

On the basis of above submissions, the petitioners challenged the validity of the establishment of the National Commission for Minorities (NCM).

The Supreme Court bench of Justices L. Nageswara Rao, S. Ravindra Bhat and Hemant Gupta on Monday said that the Central government should fill up vacancies in the National Company Law Tribunal and the National Company Law Appellate Tribunal in two months.

The court directed that the process of constituting a search-cum-selection committee had to be initiated at earliest. The Bench also passed directions not to issue any advertisement for participation of other eligible candidates’ appointment of members.

The apex court, while disposing of the case National Company Law Tribunal and Appellate Tribunal Bar Association v. Ministry of Corporate Affairs and Ors ( W.P. (C ) No. 510/2021) and Amrendra Kumar Singh v. Union of India (W.P. (C ) No. 558/2021) stated that  issue of reappointment of members can be considered separately without waiting for the process of fresh appointments to commence and to expedite the process of reappointment of Members of National Company Law Tribunal and National Company Law Appellate Tribunal within period of 2 months and not beyond than that. 

The bench said: “We trust and hope that the reappointment process would be completed expeditiously, since the government has already commenced with the process of reappointment by writing to the Chief Justice.”

Senior Counsel, Amarjit Singh Chandhiok, for the petitioner, submitted that he has no objection to the process of re-appointment being initiated forthwith, although he urges that members who are completing tenure should be permitted to continue till process of reappointment is completed. He further apprised the court that at present there are 39 members out of sanctioned strength of 63, and less strength of members will affect in the smooth functioning of Tribunals.

Attorney General of India, KK Venugopal referred to section 413(1) of the Companies Act, 2013, stating that the right of reappointment of members of Tribunal is governed under the aforesaid section of Companies Act, 2013. It was also submitted by Venugopal that the government has initiated the process of recruitment by urging the Chief Justice of India to constitute a committee for purpose of reappointment of NCLT and NCLAT members.

“Section 413(1) of the Companies Act, 2013 also provides that “The President and every other Member of the Tribunal shall hold office as such for a term of five years from the date on which he enters upon his office, but shall be eligible for re-appointment for another term of five years.”

The Court directed to initiate process of appointment requesting the CJI to initiate with Setting up of Search-cum-Selection Committee.

Senior Advocate Pradeep Rai, who appeared on behalf of the Petitioner in the matter of Amrendra Kumar Singh v. Union of India (W.P. (C ) No. 558/2021) and Advocate Ajay Jain appeared in the matter of National Company Law Tribunal and Appellate Tribunal Bar Association v. Ministry of Corporate Affairs and Ors ( W.P. (C ) No. 510/2021) argued that members who are completing their tenure should be permitted to continue in interest of Justice and for smooth functioning of Tribunals.

On the previous date of hearing,  Balbir Singh, Additional Solicitor General, had submitted that the process for appointment of candidates who have been selected pursuant to the procedure which was initiated in 2019 shall be expedited and orders of appointment shall be issued soon.

The Bench of Justice L.Nageswara Rao, Justice S.Ravindra Bhat and Justice Hemant Gupta made categorical observation pertaining to the process of commencing filling the existing vacancies that “a search-cum-Selection Committee has to be constituted and we direct that the Selection Process shall be initiated at the earliest.”

The Court was hearing the petitions filed by the National Company Law Tribunal and Appellate Tribunal Bar Association, seeking direction to the Ministry of Corporate Affairs to fill up the vacancy of the Chairman of NCLAT and President of NCLT without any delay and to expedite the process of selection started in 2019. Also, the plea seeks directions to re-appoint the members of the tribunal whose 5-year tenure ending in May and June 2021.

One of the petitions is filed by Supreme Court by advocate Amrendra Kumar Singh, seeking directions to the Ministry of Corporate Affairs to extend the tenure of those members of NCLT whose term of 5 years is expiring in May and June 2021, but have not reached the age of 65 years or 67 years, as the case may be.

The petition was filed by Supreme Court advocate Amrendra Kumar Singh through Advocate-On-Record Anand Mishra and drawn by Mukul Kumar Shrawat. In the previous early hearings, the petitioner had submitted that as on April 2021, the existing strength of the NCLT consists of its Acting President and a total number of 38 members, out of which 17 are Judicial Members and 21 are technical members, which are much below than the sanctioned strength of 63 members. The petitioner mentioned that the Tribunals have been functioning without any regular President of NCLT, for more than a year. He submitted that the existing strength of one Acting President and 38 members of the NCLT will further get reduced to 32 members in May and June 2021, as 6 members shall be completing their 5-year tenures.

The petitioner further submitted that 6 members of NCLT shall be completing their tenure of 5 years in May and June 2021, but they shall have enough service period of service left for them to serve, till they attain their age of 65 years or 67 years, as the case may be, in terms of the Section 413(1) of the Companies Act, 2013.

The petitioner mentioned the on-going COVID-19 pandemic as a huge factor in causing delay in the entire selection process of the members for the Tribunal and stated that the process of recruitment of members which was initiated in year 2019 has been held up as no appointments of new members has been made till date. The plea said, several selected candidates for the post of members of the NCLT have not received their appointment letters by the Ministry of Corporate Affairs due to this delay, and there is a dire need to maintain the strength of members in the Tribunal.

Therefore, the petitioner has sought the directions to give extension to those members who have not reached to the age of 65 years but terms of 5-years expiring in May and June 2021 in view of the Section 413(1) of the Companies Act 2013. The plea also sought directions to extend the term of the Members of the National Company Law Tribunal who shall be completing their tenure by May and June 2021 for a period (5 years or any other period) or until they attain the age of 65 years, whichever is earlier.

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The petitioner submitted in case the tenure of the Members of the Tribunal is not extended for another term, the entire purpose of ‘domain expertise’ shall be defeated, as highlighted by the Supreme Court in a catena of judgments.

“On account of delay in the selection procedure for the appointment or extension procedure of members of the Hon’ble Tribunal, adverse effect shall be caused to the Justice Delivery system,” he added.

Source ILNS

ILNS: The Uttarakhand High Court recently hit out at what it called a studied silence of the Centre on reasonable demands for oxygen by the state government within a Covid pandemic ravaged atmosphere. The court made it clear that it behoves a central government, within this quasi-federal structure, to do its constitutional duty and rush to the rescue of the state.

The comment came from the bench of Chief Justice Raghvendra Singh Chauhan and Justice Alok Verma. The bench said it was natural to expect a response from the Centre to repeated letters sent to it by the state government.

The glaring lacunae were pointed out to the court by Amit Negi, Secretary in the Medical Health and Family Welfare department of the state. He said it was becoming very difficult to procure oxygen tanks in the state. He said that a letter had been sent to the Secretary, Ministry of Health and Family Welfare, Government of India, in which it was suggested that Uttarakhand should be permitted to procure its quota of 183 MT from the local producers.

Negi pointed out that this was essential, because the state has been granted a meagre quota of 183 MT of oxygen by the Central government. Not only that, it has been said that out of this 183 MT, only 123 MT can be taken by the state from its local production units. It has also been said that the remaining 60 MT will have to be imported from Jamshedpur in Jharkhand and from Durgapur in West Bengal. It was natural for the state to want to take that amount from local producers, instead of waiting for the oxygen to arrive from faraway places.

The court was also informed that the state had requested that its quota be increased from 183 MT to 300 MT, but a letter to that effect from the Chief Secretary to the Cabinet Secretary, Government of India, was not even replied to. The Chief Secy of the state had also asked the Secretary of the department of Medical Health and Family Welfare, Government of India for 10,000 oxygen concentrators, 10,000 oxygen cylinders, 30 Pressure Swing Adsorption (PSA) oxygen plants, CPaP 200 Machines, 200 BiPaP Machines, and 1,00,000 Pulse Oximeters. That too has not happened.

Speaking for the Union government, its counsel in court, Assistant Solicitor General Rakesh Thapliyal, said it is difficult for the Union of India to concede to the request of the state government to permit it to take its quota of oxygen from its local production centres. According to him, the Central Government has to balance the interest of all the state governments.

That was when the court said: “It is rather surprising that despite the reasonable request made by the State Government to the Central Government, to permit it to lift its quota of oxygen from its own production centres within the State, in spite of the request of the State to increase its quota from 183 MT to 300 MT, and in spite of the request of the State to supply large number of oxygen concentrators, oxygen cylinders, PSA oxygen plants, the Central Government is maintaining a studied silence over all these issues.”

The court did not stop at that. It said: “In a quasi-federal country like ours, it is the constitutional duty of the Central Government to rush to the rescue of the State Government.”

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The court also took into consideration the Char Dham yatra situation and told the state government to take concrete steps to ensure that Char Dham does not become a new breeding ground for the spread of COVID-19. More strict vigilance and surveillance for Char Dham is immediately called for by the State.

ILNS: The Delhi High Court bench of Justices Vipin Sanghi and Rekha Palli, hearing a suo motu plea regarding the shortage of beds, drugs and oxygen supply etc amid the COVID-19 pandemic on Saturday hit out at the Central government and warned that it will hold the government in contempt if Delhi does not gets its allocated 490MT of oxygen by today itself.

The court directed the Central Govt to supply oxygen by whatever means. Justice Sanghi said: “Do you want us to let people die in Delhi? Do you want us to shut our eyes?”

The Court said it would haul the Central government for contempt after it was submitted that eight persons, including a doctor, had died in Batra Hospital due to lack of oxygen.

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The issue was of oxygen tankers meant for Delhi having been diverted to another state and held there. The company in question – Inox – had expressed its inability to get those tankers to Delhi so far. It was said that the tankers would be made available by today.

The Delhi High Court on Thursday heard Solicitor General Tushar Mehta appearing for the Central Government in the plea filed against Vedanta seeking clearance of dues of Rs 3,686 crore amid renewal of a contract for Rajasthan oil block.

A divisional bench of Chief Justice D.N. Patel and Justice Jyoti Singh heard the arguments on behalf of the Central Government at length and has listed the matter tomorrow for the arguments of Vedanta.

The petition has been filed by Central Government for recovering and securing dues from Vedanta arisen due to the Production Sharing Contract (PSC) between the Centre and the company in connection to the oil block in Barmer, Rajasthan, the 25 years of PSC has expired and the company is seeking an extension of contract for 10 years.

Mehta submitted,

“Government comes into several contracts and the contracts are private contracts in nature, there are few contracts entered into by UOI as a sovereign for the constitutional executive functions. The present contract is a Production Sharing Contract for petroleum and gases.”

The government holds interest for and on behalf of people of India and the government expects to grab maximum interest as per law. For the initial 25 years, there was no dispute. The petitioner sought extension for the same. The present petition in which the impugned Order is passed sought directions to extend the term of PSC on the same terms, Mehta added.

Mehta informed the bench,

“Government was already contemplating an pan India policy over the same issue, for the entire contracts in the country, for which, after consultation with all the stakeholders the government came up with it dealing with all the contracts existing in 2017 and was a retroactive policy.”

Mehta argued that the policy says there will be an increase in government share in case of an extension, however, you have a choice to agree to it and if the petitioner have any problem the same can be canvassed in accordance with law, and cannot be canvassed in a writ petition.

“Petroleum and its exploitation is the government’s obligation, it is not a subject of my power it is subject of my constitutional obligation,”

Mehta contended.

Concluding the arguments, Mehta submitted, “We have a policy, and it is an interim order, the final order cannot be processed over an interim order. This deserves to be set aside.”

The counsel appearing for the respondent submitted that Senior Advocate Harish Salve is appearing in another matter and sought a short accommodation.

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However, the Chief Justice kept the matter for hearing respondents tomorrow stating,

“We are also having virtual and physical mixture also, let us put for tomorrow, let us use those cameras and screens on you.”

The bench has listed the matter for further hearing on January 29.

Delhi Congress Vice President Abhishek Dutt on Friday said he has filed a PIL in the Delhi High Court on the economic condition of municipal corporations and the non-payment of salaries to employees. In this petition, it has been requested to provide detailed information about the amount allocated to the three municipal corporations by the Delhi government and the expenditure incurred by the bodies.

Dutt told a press conference the BJP has been in control of the municipal corporations for 13 years. The BJP had said in the 2017 manifesto that if the Delhi government does not provide funds, it will take money from the Centre.

Dutt claimed, “At present, the condition of the municipal corporations is that they are not receiving any money either from the Centre nor from the Arvind Kejriwal government.”

The Congress leader said that there was a hurdle in paying salaries to those coronavirus warriors, who worked for more than the prescribed period of time, during and after the Covid-19 lockdown.

Dutt himself is a councillor and a Congress leader in the South Delhi Municipal Corporation. Significantly, the municipal corporation employees have announced that they will not take the corona vaccine due to non-payment of salary. Employees are continuously protesting on the issue.

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A plea has been filed before the Supreme Court seeking directions to the Centre and States to take appropriate steps to double the number of judges in the High Courts and subordinate courts and implement a judicial charter to decide the cases.

The PIL filed by Advocate Ashwini Kumar Upadhyay has sought directions to the Centre and states to implement the recommendations of Law Commission Report No-245 and take other steps in order to break even and dispose of the backlog in a three-year time frame.

According to the plea, the Apex Court being the custodian of the  Constitution and should issue proper directions for implementation of the judicial charter in all the courts to decide the cases within 3 years and to break even and dispose of the backlog by 2023.

The plea has stated that the right to fair trial and speedy justice is a fundamental right under Article 21, therefore no procedure can be fair unless it ensures fair and speedy determination of guilt of the accused. Fair trial and speedy justice have been recognized as an inherent and implicit aspect in the spectrum of Article 21. In order to provide speedy justice to ordinary citizens, there is urgent need to reform the judicial system. An effective justice delivery system requires that justice should not only be delivered on time, but also be easily accessible to people, particularly people from vulnerable sections of society. A thorough understanding of current shortcomings and future needs of the system must guide the approach to reform.

“The process of reform must begin with an assessment of the country’s needs that the legal profession seeks to fulfill, namely the requirements across various levels of judiciary, gaps in criminal justice system, specific areas within the law which will require an increased number of practitioners in the near future. As part of judicial reforms, the lawyer community, which has often been ignored, should also be considered. Legal education and continuing professional development must create a socially sensitive lawyer of conscience, for whom justice delayed is not an opportunity but a blemish on one’s professional persona and a failure of the system of which one is an integral part,”

-the plea read.

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A similar plea was filed by Upadhyay in 2016 seeking Court’s direction to the Centre to double the number of judges in the country, which was disposed of by the Apex Court with liberty to the petitioner to approach the Court again.

The Delhi High Court has issued notice in response to a petition filed by the Central government seeking the quashing of the order passed by the Central Information Commission alleging that it has misinterpreted the provisions of the Right to Information Act, 2005.

Hearing the petition through video conferencing, a single-judge bench of Justice Navin Chawla noted, “There shall be a stay on the operation of the order till the next date of hearing.”

The petition filed by the Centre has alleged that CIC was not empowered to pass such directions and the same was without it’s jurisdiction. The CIC had directed the Ministry of Statistics and Programme Implementation, Member of Parliament Local Area Development Scheme (MPLADS) Division to make necessary changes to publish MP-wide, Constituency Wise and work-wise details with names of beneficiaries and reason for delay, if any, after duly procuring from the sources holding such information including the concerned district administration to ensure its voluntary disclosure under Section 4 of the RTI Act.

The petitioner contended that the CIC also directed it to collect information from concerned district authorities and furnish the information sought as far as their MP is concerned within one month, and publish it in their official website also. 

The plea has alleged that the directions given to petitioner are beyond the scope and the purview of the Right to Information Act, 2005 and is ultra-vires the powers vested with the Central Information Commission under the Right to Information Act, 2005.

The petition further averred that the issue as to whether political parties are under the ambit of Right to Information Act 2005, is pending adjudication/consideration before the Supreme Court. It said the parliamentary parties do not fall within the ambit of the Right to Information Act. 

The two petitions filed by the Central Government was against the two orders which were passed by the CIC. The first order which was passed by the CIC was in an appeal of RTI filed by Ram Gopal Dixit.

The filed RTI had sought information related to work initiated, pending and completed by Rajesh Kumar Diwakar, MP, Hathras Constituency, Annual Report, the agencies involved in the construction/ initiation/ completion of various projects of Public Welfare in Hathras Constituency, funds spent on such work etc. in  Hathras Constituency, Uttar Pradesh.

The second matter was filed against the CIC order on an appeal of RTI filed by Vishnu Dev Bhandari seeking information with reference to a letter of Ministry of Statistics and Programme Implementation as which report has been sent to the Ministry in response to your above-noted letters. Provide a certified copy of the report, which order was passed by the Ministry on the report on the report sent by District Planning Officer, Madhubani. Provide a certified copy of the order and if the report has not been received, then what action has been taken again for compliance of the above-noted orders of the Ministry? Provide a certified copy of the action taken. 

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The Delhi High Court has listed the matter for further hearing on April 22, 2021.

Supreme Court today declines to hear a plea seeking directions to Government to relax or reduce charges of non-COVID-19 related treatment to safeguard ‘right to life’ of every citizen, during the period of lockdown imposed to contain Novel Coronavirus outbreak.

A three Judges bench headed by the Justice N. V. Ramana dismissed the PIL filed by Kolkata based advocate Sourjya Das seeking directions to Centre, all State Government and Union Territories to take immediate steps to reduce Non-COVID related healthcare treatment services at all public hospitals. 

PIL contended numerous members of the public, including self-employed, businessmen and professionals, have suffered loss of livelihood and income due to the lockdown.  

“The restrictions imposed on public life by following the COVID-19 outbreak has hampered public life in such a way that the public do not know when things will get back to normal or when offices, shops and usual means of income would resume, thus financially empowering members of the public on a daily basis,” his plea said.

The petitioner sought a direction to grant ad-interim stay in all pending medical bills pending payment by any patient at any public or private hospital or nursing home, at present, till action is taken by the Respondents in compliance with the Orders passed by Apex Court. 

Supreme Court observed it is for the Government to decide on this. “Courts don’t have any fund…Don’t create Publicity Interest Litigation,” Said Court.

–India Legal Bureau