Case BriefsSupreme Court

Supreme Court: The 2- Judge Bench comprising of A.K. Sikri and Ashok Bhushan, JJ., gave directions to be followed for burning of crackers while refusing the complete ban on the sale of firecrackers as it may lead to “extreme economic hardships” (observing without conclusively holding) and further stating that there have been lots of efforts for production of firecrackers which do not contain harmful chemicals and thereby not causing air pollution, which are even termed as Green Crackers’.

The present petition was filed by next friends of three infants concerning the health of the children as due to the alarming degradation of the air quality, leading to severe air pollution in the city of Delhi, the petitioners may encounter various health hazards. Children are much more vulnerable to air pollutants as exposure thereto may affect them in various ways. Further, they have submitted that air pollution hits its nadir during Diwali time because of indiscriminate use of firecrackers.

In light of the above submissions, the petitioners have prayed for directions to the official respondents to take possible measures for checking the pollution by sticking at the causes of the pollution.

The Supreme Court on duly considering the submissions of the parties and taking note of the reports based on earlier orders of the Supreme Court concerning the same issue, stated that bursting of firecrackers during Diwali is not the only reason for deterioration of air quality, the other reasons which contribute to the issue are unregulated construction activity and crop burning. Further, the Court stated that “our endeavor is to strive at balancing of two rights, namely, right of the petitioners under Article 21 and right of the manufacturers and traders under Article 19(1)(g) of the Constitution of India.

Respondent 1, on the direction of Apex Court’s earlier order, filed an affidavit in consultation with various ministries to deal with the problems and issues as stated above, which have been accepted by the Supreme Court and further direction has been given for the implementation of the same. The directions given by the Court have been stated below in a succinct manner:

  • Complete ban on manufacture and sale of all fireworks which are high emission. Therefore all existing fireworks like sparklers, flower pots, chakras, rockets and crackers stand banned.
  • Only “green” and low emission fireworks which will have to be made in future are permitted, once cleared by PESO.
  • Any of those fireworks which are green or low emission when invented will be permitted to be used only in community areas as demarcated and not in front of everybody’s houses.
  • Any violation of the sale of prohibited fireworks or their use or the bursting of permitted fireworks in non designated areas will be the responsibility of the respective SHO who can be hauled up for contempt of the Supreme Court.
  • No E-Commerce site can sell any of the traditional Fireworks and if they do so they will be guilty of contempt of Supreme Court as well.
  • It will be the responsibility of PESO to ensure that all existing fireworks are disposed of and not permitted to be sold.
  • On Diwali days or on any other festivals like Gurupurab, when fireworks generally take place, it would strictly be from 8:00 p.m. till 10:00 p.m. only. On Christmas and New Year eve, when such fireworks start around midnight, i.e. 12:00 a.m., it would be from 11:55 p.m. till 12:30 a.m. only.
  • Union of India, Government of NCT of Delhi and the State Governments of the NCR would permit community fire cracking only (for Diwali and other festivals etc.)

Therefore, the Court having regard to the overall circumstances, decided to have a balanced approach to tackle the stated issue which may take care of the concerns of both the parties and provide a reasonable and adequate solution. [Arjun Gopal v. Union of India,2018 SCC OnLine SC 2118, decided on 23-10-2018]

Case BriefsSupreme Court

In the theatre of life, it seems, man has put the autograph and there is no space for a woman even to put her signature. There is inequality on the path of approach to understand the divinity. The dualism that persists in religion by glorifying and venerating women as goddesses on one hand and by imposing rigorous sanctions on the other hand in matters of devotion has to be abandoned.

-CJI Dipak Misra and A.M. Khanwilkar, J.

Notions of “purity and pollution”, which stigmatize individuals, have no place in a constitutional order.

-Dr D.Y. Chandrachud, J.

Hindu deities have both physical/temporal and philosophical form. The same deity is capable of having different physical and spiritual forms or manifestations. Worship of each of these forms is unique, and not all forms are worshipped by all persons.

-Indu Malhotra, J.

Supreme Court: A 5-Judge Constitution Bench, by a majority of 4:1, held not allowing entry to women of the age group of 10 to 50 years in the Sabarimala Temple is unconstitutional. The judgment of the Court was delivered by CJ Dipak Misra for himself and A.M. Khanwilkar, J. While, R.F. Nariman and Dr D.Y. Chandrachud each gave separate concurring opinions. the only lady Judge on the Bench, Indu Malhotra, J. rendered a dissenting opinion.

Background: The instant proceedings arose after a 3-Judge Bench in India Young Lawyers Assn. v. State of Kerala, (2017) 10 SCC 689, keeping in view the gravity of issues involved, referred the matter for consideration by a Constitution bench. The writ petition preferred under article 32 of the Constitution sought issuance of directions against the Government of Kerala and other respondents to ensure entry of female devotees between the age group of 10 to 50 years to the Lord Ayyappa Temple at Sabarimala (Kerala) which has been denied to them on the basis of certain custom and usage; to declare Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 as unconstitutional being violative of Articles 14, 15, 25 and 51 A(e) of the Constitution and further to pass directions for the safety of women pilgrims. On the other hand, according to the respondents, the said temple, though open to all members of the public regardless of caste, creed, or religion, is a denominational temple which claims the fundamental right to manage its own affairs in matters relating to religion.

Issue: Whether the complete exclusion of women between the ages 10 and 50 from entry, and consequently, of worship in the Sabarimala temple, based upon a biological factor which is exclusive to women only, and which is based upon custom allegedly constituting an essential part of religion, can be said to be violative of their rights under Article 25?

Discussion in relation to right under Article 25(1)

The right to practise religion under article 25(1), in its broad contour, encompasses a non-discriminatory right which is equally available to both men and women of all age groups professing the same religion. Article 25(1), by employing the expression “all persons”, demonstrates that the freedom of conscience and the right to freely profess, practise and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women. Women of any age group have as much a right as men to visit and enter a temple in order to freely practise Hindu religion and to exhibit her devotion towards Lord Ayyappa. The term “morality” occurring in Article 25(1) of the Constitution cannot be viewed with a narrow lens so as to confine the sphere of definition of morality to what an individual, a section or religious sect may perceive the term to mean. The notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practise religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala temple for the simple reason that public morality must yield to constitutional morality.

Followers of Lord Ayyappa do not constitute a religious denomination

though, the respondents urged that the pilgrims coming to visit the Sabarimala temple being devotees of Lord Ayyappa are addressed as Ayyappans and that they are a religious denomination, was unacceptable. There is no identified group called Ayyappans. Every Hindu devotee can go to the temple. There is no identified sect, Sabarimala temple is a public religious endowment and there are no exclusive identified followers of the cult. Devotees of Lord Ayyappa are just Hindus and do not constitute a separate religious denomination. For a religious denomination, there must be new methodology provided for a religion. Mere observance of certain practices, even though from a long time, does not make it a distinct religion on that account.

Exclusionary Practice- Whether essential practice as per Hindu religion?

What constitutes an essential part of a religion is ascertained with reference to the tenets and doctrines of that religion itself. It had to be determined whether the practice of exclusion of women of the age group of 10 to 50 years is equivalent to a doctrine of Hindu religion or a practice that could be regarded as an essential part of the Hindu religion and whether the nature of Hindu religion would be altered without the said exclusionary practice. the answer to these questions, was in the firm negative. On the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their prayers to the deity. In the absence of any scriptural or textual evidence, it cannot be accord to the exclusionary practice followed at the Sabarimala temple the status of an essential practice of Hindu religion. By allowing women to enter into the Sabarimala temple for offering prayers, it cannot be imagined that the nature of Hindu religion would be fundamentally altered or changed in any manner.

Conclusions of the matter by the majority is delineated hereinafter:

  1. Custom or usage of prohibiting women between the ages of 10 to 50 years from entering the Sabarimala temple is violative of Article 25(1) and violative of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 made under Article 25(2)(b) of the Constitution. Further, it is also declared that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 is unconstitutional being violative of Article 25(1) and Article 15(1) of the Constitution of India. (per R.F. Nariman, J.)
  2. Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act. The language of both the provisions, i.e., Section 3 and the proviso to Section 4(1) of the 1965 Act clearly indicate that custom and usage must take space to the rights of all sections and classes of Hindus to offer prayers at places of public worship, (per CJ Dipak Misra and A.M. Khanwilkar,J.)
  3. Devotees of Lord Ayyappa are exclusively Hindus and do not constitute a separate religious denomination. (per CJ Dipak Misra and A.M. Khanwilkar, J.)
  4. Freedom of conscience and the right to freely profess, practise and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women. (per CJ Dipak Misra and A.M. Khanwilkar, J.)
  5. The exclusionary practise being followed at the Sabarimala temple by virtue of Rule 3(b) of the 1965 Rules violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. (per CJ Dipak Misra and A.M. Khanwilkar, J.)
  6. The practice of exclusion of women of the age group of 10 to 50 years being followed at the Sabarimala temple cannot be regarded as an essential part as claimed by the respondent Board. (per CJ Dipak Misra and A.M. Khanwilkar, J.)
  7. Hindu women constitute a ‘section or class’ of Hindus under clauses (b) and (c) of Section 2 of the 1965 Act. Rule 3(b) of the 1965 Rules enforces a custom contrary to Section 3. This directly offends the right of temple entry established by Section 3. Rules 3(b) is ultra vires the 1965 Act. (per Dr D.Y. Chandrachud, J.)

Indu Malhotra, J., at as many as 10 places in her dissenting opinion, referred to the deity in Sabarimala temple as Naishtik Brahmachari. She expressly mentioned that “Sabarimala temple where Lord Ayyappa is believed to have manifested himself as a Naishtik Brahmachari“. She held that ‘In the case of the Sabarimala Temple, the manifestation is in the form of a ‘Naishtik Brahmachari’. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution.

Justice Malhotra was of the view that the right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the petitioner’s personal rights to worship in the Temple have been violated. the petitioners herein did not claim to be devotees of the Sabarimala temple. The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination. In the present case, the worshippers of this Temple believe in the manifestation of the deity as a ‘Naishtik Brahmachari’. The devotees of this Temple have not challenged the practises followed by this temple, based on the essential characteristics of the deity.

Therefore, the Writ Petition does not deserve to be entertained for want of standing. The grievances raised are non-justiciable at the behest of the Petitioners and Intervenors involved herein.

The equality doctrine enshrined under article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion. The prayers of the Petitioners if acceded to, in its true effect, amounts to exercising powers of judicial review in determining the validity of religious beliefs and practises, which would be outside the ken of the courts. the issue of what constitutes an essential religious practise is for the religious community to decide.

The contention of the learned Amicus Curiae that the Sabarimala Temple would be included within the ambit of ‘places of public resort’ under Article 15(2) cannot be accepted.

The proviso to Section 3 of the 1965 Act carves out an exception to the applicability of the general rule contained in Section 3, with respect to religious denominations, or sect(s) thereof, so as to protect their right to manage their religious affairs without outside interference. Rule 3(b) gives effect to the proviso of Section 3 insofar as it makes a provision for restricting the entry of women at such times when they are not by custom or usage allowed to enter of the place of public worship. The Respondents claim the right to worship in the Sabarimala Temple under Article 25(1) in accordance with their beliefs and practises as per the tenets of their religion. These practises are considered to be essential or integral to that temple. Any interference with the same would conflict with their right guaranteed by Article 25(1) to worship Lord Ayyappa in the form of a ‘Naishtik Brahmachari’.

The worshippers of Lord Ayyappa at Sabarimala Temple constitute a religious denomination, or sect thereof, as the case may be, following the ‘Ayyappa Dharma’. The devotees follow an identifiable set of beliefs, customs and usages, and code of conduct which are being practised since time immemorial, and are founded in a common faith, in any event, Article 290 A does not in any manner take away the denominational character of the Sabarimala Temple, or the Fundamental Rights under Article 26.

The religious practise of restricting the entry of women between the ages of 10 to 50 years, is in pursuance of an ‘essential religious practise’ followed by the respondents. The said restriction has been consistently followed at the Sabarimala Temple, as is borne out from the Memoir of the Survey of the Travancore and Cochin States published in two parts in 1893 and 1901. Any interference with the mode and manner of worship of in present case would impact the character of the Temple. The limited restriction on the entry of women during the notified age group does not fall within the purview of Article 17 of the Constitution.

In the light of all that has been discussed as mentioned hereinabove, as per the majority judgment, the practise of not allowing the entry of women of the age group of 10 to 50 years was held to be unconstitutional being violative of fundamental rights. [Indian Young Lawyers Assn. v. State of Kerala,2018 SCC OnLine SC 1690, decided on 28-09-2018]

Hot Off The PressNews

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M. Khanwilkar, Dr D.Y Chandrachud and Indu Malhotra JJ., by a 4:1 majority, allowed the entry of women in Sabarimala Temple, Kerala.

CJ Dipak Misra: Women no way inferior to men. On one hand, women are worshipped as Goddesses, but there are restrictions on the other hand. Relationship with God can’t be defined by biological or physiological factors.

CJ and Khanwilkar, J: Rule 3(b) of Kerala Temple Entry Act which excludes women aged between 10 and 50 violates freedom of a Hindu religion to worship. Right to worship is equally available to men and women. There can be no discrimination on the basis of gender.

 Dr D.Y. Chandrachud J.: To treat women as the children of a lesser God is to blink at the Constitution.

“The ban says presence of women deviates from celibacy. This is placing the burden of a men’s celibacy on women. Stigmatises them, stereotypes them.”

R.F. Nariman J.: Rule 3(b) is unconstitutional for being violative of Articles 25(1) & 15(1) of the Constitution. Excluding women renders their right to practice faith.

 Indu Malhotra J. (dissents): What is essential practice in a religion is for the religion to decide, it is a matter of personal faith. India is a land of diverse faiths. Constitutional morality in a pluralistic society gives freedom to practice even irrational customs. Religious practices cannot be solely tested on the bedrock of equality.

“Religious practices can’t solely be tested on the basis of the right to equality. It’s up to the worshippers, not the Court to decide what’s religion’s essential practice.”

Indu Malhotra J. Judges cannot intervene and decide on whether a practice is violative of fundamental rights or not. Personal views of judges do not matter. A religious denomination has freedom to believe and practice even if their beliefs are illogical or irrational.

Hence, the Constitution Bench with 4:1 majority removed the ban on entry of women in the Sabarimala Temple stating “Women can’t be treated as lesser or weaker.”

Judgment awaited.

Hot Off The PressNews

Supreme Court: The 3-judge Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ., dismissed the petition filed by Ashwini Kumar Upadhyay seeking ban on legislators practising as advocates.

The petitioner, in his plea, claimed that the parliamentarians and legislators, practising as lawyers, posed a conflict of interest and violated the provisions of the Advocates Act and the Bar Council of India Rules. Furthermore, such legislators take a fee from litigants and salary from the public exchequer, which is professional misconduct.

However, the Supreme Court stated that there is no rule that debars lawmakers from practising in the Courts. Court takes note of stand of Bar Council of India (BCI). Therefore, the Court held that Rule 49 is not applicable to law makers who are not full-time salaried employees.

[Source: https://twitter.com/TheLeaflet_in]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench comprising of Manoj Kumar Tiwari, J. and Rajiv Sharma, ACJ., gave directions as to the use and sale of plastic in the State.

The Court took judicial notice of the news item published in daily edition of ‘Hindustan’ newspaper wherein it was stated as to how polythene was damaging the ecology of the environment and consequently it expressed its concern over the havoc created by plastic and demanded the authorities to contribute towards sweeping away the damages caused by the plastic from the State. It was observed that “Polythene is polluting the fragile environment and ecology of the State of Uttarakhand. It has also now entered into the river system and drainage system. It has reduced the fertility of the land. The stray cattle are also consuming polythene, causing grave harm to their health.”

Accordingly, the respondent was directed to apprise the Court about the implementation of the directions issued by it along with the initiative undertaken by the Chief Minister of Uttarakhand to eradicate the polythene menace. Also, the District Magistrates throughout the State were directed to launch special initiative to check the sale and use of polythene. [Ban on the use of polythene in Uttarakhand, In re, WP(PIL) No. 132 of 2018, order dated 07-09-2018]

Hot Off The PressNews

Supreme Court: The Bench comprising of CJ Dipak Misra, AM Khanwilkar and Dr DY Chandrachud, JJ., refused the withdrawal of a PIL that sought deletion of portions of  Malayalam novel “Meesha”.

The petitioner stated that the excerpts of the novel consisted of cast aspersions on the character of priests and girls which dressed up to visit the temples by terming the activity as exhibition of readiness to have sex.

Therefore, in regard to the matter, CJ Dipak Misra stated that “There should be some literary freedom.”  The bench further added that “Let us not make a virtue of banning of books in the past to extend it to the present day.”

Hence, the bench while stating that the tendency of taking out a passage from a book and seeking its ban must stop asked the Kerala government and daily to file responses along with the English translations of the portions that are offending in their opinion in the novel ‘Meesha’.

[Source: The Times of India]

Hot Off The PressNews

Supreme Court:  The 3-Judge Bench of Dr AK Sikri, Abhay Manohar Sapre and Ashok Bhushan, JJ., in an earlier judgment of Arjun Gopal v. Union of India, (2017) 16 SCC 267 had refused to put a blanket ban on the sale of crackers.

A Division bench comprising of AK Sikri and Ashok Bhushan, JJ in an order dated 01-08-2018 stated that it would examine whether there should be a blanket ban on the use of firecrackers due to the air pollution in Delhi being touched to danger mark during Diwali.

The Supreme Court bench had in regard to the blanket ban stated that “Are we supposed to take a holistic approach and ban everything that contributes to pollution or take an ad-hoc approach and simply ban firecrackers?”

The matter was further listed for 08-08-2018.

[Source: PTI]

 

Hot Off The PressNews

Supreme Court: The Bench comprising of CJ Dipak Misra and AM Khanwilkar and Dr DY Chandrachud JJ., refused to stay the Delhi High Court’s order restoring the ban on publication and sale of a book based on Baba Ramdev’s life i.e. “Godman to Tycoon”.

Ramdev in his suit had alleged that the information in the book was false, tended to injure his reputation. He further stated that the book contained defamatory and false information.

Juggernaut is the publisher of the mentioned book and it reached the Supreme Court in order to lift the ban on sale and publication of the book imposed.

Therefore, the Supreme Court in its order refused to lift the ban and asked the Delhi High Court to decide the petition by the end of September. The Court concluded by stating that keeping in view the contentions advanced with regard to the freedom of speech and expression and the rights of an author in writing a book, we only intend to clarify that the said observations should not influence the adjudicatory process while dealing with the matter finally.[Juggernaut Books Pvt. Ltd. v. Swami Ramdev, Special Leave to Appeal (C) No. 19050-19053 of 2018, order dated 23-07-2018]

Hot Off The PressNews

Supreme Court: The Division Bench comprising of AK Sikri and Ashok Bhushan JJ., in an order stated that ‘there cannot be any “blanket ban” on holding protests at Jantar Mantar and Boat Club in Delhi along with other parts of Central Delhi.

In an order by NGT in Varun Seth v. Police Commissioner, Delhi Police; 2017 SCC OnLine NGT 65, as reported, all the protests around Jantar Mantar area were banned due to rise in violation of the environmental laws, reason being the dharnas and protests taking place on the Jantar Mantar road.

The Supreme Court addressed the plea filed by an NGO seeking direction for the removal of ban for the said order by NGT. Therefore, Supreme Court by removing the ban directed the Delhi police to frame guidelines in this regard within a period of 2 weeks.

[Source: ANI]

Case BriefsHigh Courts

Delhi High Court: The Single Judge Bench comprising of Rajiv Shakdher J., decided on a petition seeking the removal of the ban on entry of the petitioner an Indian origin Canadian citizen in India due to being put on a ‘Blacklist’ along with violating the principles of natural justice.

The matter majorly dealt with the ban of the petitioner on entering in India who is of Indian origin migrated to Canada and consisted of an Overseas Citizen of India (OCI) card which permits the free travel to and from India qua persons who are foreign citizens of Indian origin. The petitioner was asked to return to Canada when he reached Hyderabad airport to see his differently able child who had fallen seriously ill.

The petitioner in seeking legal recourses and on being dissatisfied with responses moved to the High Court, where a counter affidavit was filed by the respondents saying the High Court had no jurisdiction to entertain the said petition. Though, the High Court dealt with the issue of jurisdiction and stated that the submission can’t be sustained.

While considering the facts and circumstances of the case, the High Court came to the conclusion with following reasoning that, as averred by the petitioner that he attended ‘Tabligh’ work, it is not a banned activity in accordance to the visa manual. Prima facie, the activity undertaken did not violate any provisions of the Indian law. Therefore, no opportunity being provided to the petitioner by the Respondents is totally unjustified hence, the Court required the respondents to reconsider the petitioner’s case along with bearing in mind the concept of ‘doctrine of proportionality’.[Mohammad Abdul Moyeed v. Union of India, 2018 SCC OnLine Del 9959, dated 20-07-2018]

Case BriefsForeign Courts

 Supreme Court of United Kingdom: Lord Kerr, J. delivered the judgment for the Court including himself and Lady Hale, Lord Wilson, Lord Reed and Lady Black, JJ. wherein the Hon’ble Court struck down Sections 1 and 3 of Civil Partnership Act 2004, in as much as they precluded different-sex couples from entering into a civil partnership.

Appellants were a different-sex couple who wished to formalise their relationship; they had ideological objections to the concept of marriage which they believed to be patriarchal in nature; and as such, they wished to enter into a civil partnership instead. It is noteworthy that under Civil Partnership Act 2004, only same-sex couple could enter into a civil partnership. Also, the enforcement of Marriage (Same Sex Couples) Act 2013, made marriage of same-sex couples lawful. Consequently, same-sex couples have a choice to either enter into a civil partnership or solemnize a marriage. This choice was not available to different-sex couples. The appellant sought judicial review of respondent’s continuing decision not to make changes in CPA to allow different-sex couples to enter into civil partnerships. The issue before the Court was whether the ban as mentioned above-breached appellant’s right under Article 14 (prohibition on discrimination) together with Article 8 (right to respect for private life) of European Convention on Human Rights.

The Supreme Court, after due consideration of the facts and law, held that the said ban was violating the rights of different-sex couples under Article 14 read with Articles 8 of ECHR. In fact, the respondents admitted that the said position created inequality in treatment between same-sex and different-sex couples. The Court observed that enforcement of MSSCA without abolishing or making changes in the CPA, created inequality on the basis of sexual orientation of the two groups. The Government had decided not to take a final decision on future of civil partnerships, as it was proportionate to collect more data before any such decision could be made. While discussing the basis of interference with a qualified ECHR right, the Court held that for any such interference to be legitimate, the aim must be intrinsically linked to the discriminatory treatment. The Court was of the view that the Government had to eliminate the inequality of treatment immediately when the MSSCA was enforced. Even if interference with appellant’s rights, in this case, could be regarded as a legitimate aim, a fair balance between their rights and interests of the community had not been struck. Holding thus, the Supreme Court struck down Sections 1 and 3 CPA as mentioned hereinabove. [R. v. Secretary of State for International Development, [2018] UKSC 32, decided on 27-06-2018]

Hot Off The PressNews

The Ministry of Health and Family Welfare has restricted the manufacture of Oxytocin formulations for domestic use to public sector only from 1-6-2018. It has also banned the import of Oxytocin and its formulations.

From 1-6-2018, no private manufacturer will be allowed to manufacture the drug for domestic use. Only Karnataka Antibiotics & Pharmaceuticals Ltd (KAPL), a public sector company, would be manufacturing this drug for domestic use from that date. The Oxytocin formulations meant for domestic consumption will be supplied by the manufacturer, i.e. KAPL, to the registered hospitals and clinics in public and private sector directly. Oxytocin in any form or name will not be allowed to be sold through retail chemist.

Ministry of Health and Family Welfare

Case BriefsHigh Courts

Kerala High Court:The culprit is finning, and the result is the species thinning, to the extent of disappearing – almost”, said Dama Seshadri Naidu, J., speaking for himself and Antony Dominic, CJ. while dismissing an appeal filed challenging the notification passed by the Central Government vide which the Government imposed ban on export of shark fins. It is noteworthy that internationally too, ‘shark finning’ is a detestable fishing activity, leading to environmental and ecological calamities.

The appellant was a marine produce exporter, dealing exclusively in shark fins. He assailed the notification banning the export of sharks as ultra vires the Government power under relevant statutes. Earlier, too, in 2001, the Union of India banned catching all species of shark in India, treating them as endangered animal under the Wildlife (Protection) Act, 1972. However, due to widespread protest, the ban was constricted to only 9 out of 99 shark and ray species. Subsequently, in 2015, the Government exercised its powers under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, and ordered the impugned notification, wherein export of all shark fins, of whatever species, was banned. The appellant sought striking down of the notification as void. The notification was also challenged for violating Article 14 of the Constitution.

After a lengthy discussion on law relating to the subject, the High Court inter alia observed that the said notification was piece of subordinate legislation. Placing reliance on the decision of Supreme Court in Indian Express Newspaper (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641, the High Court observed that a piece of subordinate legislation does not carry the same immunity as enjoyed by a statute passed by competent legislature. Subordinate legislation may be questioned on all grounds as are available against the plenary legislation including ignorance of the parent statute; contravention of some other statute; and unreasonableness in the sense of being manifestly arbitrary. On perusal of the notification and the policy behind it, the Court held that, the ban was introduced to protect the wildlife in general and sharks in particular, which are regarded by the Government as an endangered animal. The re-introduction of the ban after a gap of over 13 years was also plausible as on the high seas it was impossible for the fishermen to identify and differentiate one species of shark from the other. Further, challenge to the notification on ground of violating Article 14 was also dismissed by the Court. True that the notification did not prohibit hunting of shark for domestic consumption, though it bans export of shark fins. However, such distinction seems to be based on an intelligible differentia as shark meat is not a staple food for Indians. To cater the needs of miniscule number of consumers, no danger of wholesale killing of sharks arise. Thus, the Court did not find any infirmity in the impugned notification; the writ appeal was dismissed. [Marine Fins v. Union of India,  2018 SCC OnLine Ker 1950, order dated 29-5-2018]

Cabinet DecisionsLegislation Updates

In the Budget 2018, Finance Minister had said reiterating his stand and extending the warning one more time, that dealing with cryptocurrencies was not legal in India. The Cabinet on 20-03-2018, approved to introduce Banning of Unregulated Deposit Schemes Bill, 2018, which includes Ponzi schemes and the usage of cryptocurrencies. With the passage of this bill, it is likely that Ponzi schemes and dealing in cryptocurrencies will become illegal.

The Bill seeks to ban unregulated deposit schemes with a view to curb defrauding of gullible investors through chit funds. The bill is aimed at tackling the menace of illicit deposit-taking activities in the country as in the recent past there have been rising instances of people in various parts of the country being defrauded by such schemes. Companies and institutions running such schemes exploit the existing regulatory gaps and lack of strict administrative measures to dupe the poor and gullible people of their hard-earned savings. The worst victims are the poor and the financially illiterate, and the operations of such schemes are often spread over many States.

To curb black money and corruption, Government cleared the Bill, by making even the act of running such Ponzi schemes an offence. According to the new law, real estate developers that offer schemes with fixed returns till possession will come under “unregulated deposits”. Similarly, some jewellers, offer schemes in which the consumers pay 11 instalments while the company pay the 12th one. Other schemes have offers where consumers pay instalments for at least 10 months and get up to 50 % discounts in monthly contribution. All these schemes will be illegal under the new law. There have been several instances in the past where government try to curb these schemes but could not succeed. A new comprehensive law would completely prohibit unregulated deposit-taking and provide for deterrent punishment for promoting or operating such schemes, besides introducing other changes.

Cabinet

Case BriefsForeign Courts

Federal Administrative Court of Germany: Germany’s highest administrative court in Leipzig ruled in favour of upholding bans that were introduced by lower courts in the cities of Stuttgart and Düsseldorf, two of the most polluted German cities, after appeals were lodged by the states of Baden-Württemberg and North Rhine-Westphalia. Millions of heavily polluting vehicles could eventually disappear from roads across Germany after this landmark ruling. The ruling clearly states that cities have the right to ban diesel motors in an effort to improve deadly air quality levels. This, significant ruling could cause traffic chaos and dramatically hit the value of diesel vehicles.

The case was originally brought by the environmental groups Deutsche Umwelthilfe (German environmental aid or DUH) and ClientEarth, which now paves the way for cities across Germany to follow suit. The Court said it would be up to “the city” and municipal authorities to apply the bans, but advised them to “exercise proportionality” in enforcing them, and to impose them gradually, granting exemptions for certain vehicles [such as ambulances, rubbish collection lorries and police cars]. The historic decision is an incredible result for people’s health, and could have an impact in foreign courts. This long waited ruling gives legal clarity, that diesel restrictions are legally permissible and will necessarily trigger a domino effect across the country.

The Court also placed reliance on the experts, who estimated that excessive amounts of nitrogen oxides or NOx in the air kill between 6,000 and 13,000 people in Germany every year, causing a range of health conditions, from strokes to asthma. Eager to reassure anxious car owners, the government insisted nothing would change immediately and stressed that bans were not inevitable. The Court has not issued any driving bans but created clarity about the law. Precisely how many vehicles might be potentially affected by the ban remains unclear until further details. Of the 15 million diesel cars registered in Germany, around 6 million are of a “Euro 6” emissions standard that would probably escape a ban. Industry representatives have expressed their concern that they in particular might be disadvantaged in carrying out their daily business, and have called for special exemptions to avoid potentially devastating effects on the economy.

[Source: The Guardian]

Photo Courtesy: Simon, A PHOTO TOUR OF PRETTY LEIPZIG, https://wild-about-travel.com/photo-tour-pretty-leipzig/

Case BriefsHigh Courts

Bombay High Court: The ban on media reporting of the trial of the Sohrabuddin Sheikh fake encounter case ordered by the special CBI Court was cancelled by the Bench of Justice Revati Mohite-Dere. “Justice must not only be done but must be seen to be done, which is the purpose of an open court,” the Court said, adding, “People are entitled to know whether the justice delivery system is adequate.”
Journalists from leading newspapers, online media outlets and television channels in Mumbai had gone to the High Court against the ban on any reporting on the case. They said it is the fundamental right of journalists to report and the basic right of every citizen to be informed. The Court noted that the special CBI court had overreached its powers with the ban order issued in November observing “Mere apprehension of sensationalism by the accused is not sufficient ground for such gag orders”. [Sunil Baghel v. State of Maharashtra, Crl. Pet. No. 5434 of 2017, order dated 24.1.2018]

 

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): Circuit Bench of NGT at Kochi has directed that no diesel vehicle aged more than 10 years shall be allowed to ply in major cities of Kerala like Thiruvananthapuram, Kollam, Kochi, Thrissur, Kozhikode and Kannur. In addition, the tribunal also temporarily banned registration of new diesel vehicles over 2,000CC and only vehicles for public transport and those to be used by local authorities have been exempted in the order. NGT issued the said interim order while hearing a petition filed by Lawyers’ Environmental Awareness Forum. “We direct that all the diesel vehicles whether light or heavy which are more than 10 years shall not be permitted to ply on the roads in the major cities like Thiruvananthapuram, Kollam, Kochi, Thrissur, Kozhikode and Kannur,” NGT noted. The Tribunal further added that upon expiry of 30 days from May 23, 2016, i.e. the date of issuance of the said interim order, if any vehicle is found to be violating this direction, it shall pay Rs. 5000 as environmental compensation and this will be collected by traffic police or pollution control board. “The State Pollution Control Board shall maintain a separate account in this behalf. The Fund so collected shall be spent only for betterment of environment in these cities (where the ban would be in force),” the Tribunal directed. In its order, NGT also referred to orders passed by its larger bench in Vardhman Kaushik v. Union of India, 2014 SCC OnLine NGT 2365, by which all vehicles aged over 15 years were banned from the roads in Delhi. While concluding the order, NGT directed the State of Kerala to inform the availability of CNG gas for running of vehicles in the entire State. [Lawyers’ Environmental Awareness Forum v. State of Kerala, 2016 SCC OnLine NGT 163, dated: May 23, 2016]

Case BriefsHigh Courts

Delhi High Court: A public interest litigation has been filed by a poor tea vendor praying for a ban on “celebratory firing”  which resulted in the  death of his 17 year old daughter, who happened to be watching a marriage procession from the balcony of his house. In view of the increase in the numbers of such deaths caused by unrestrained and indiscriminate celebratory firing in the air in public gatherings, marriage parties, religious places and other functions, the PIL was filed as a public cause.

The petitioner contended that this practice amounted to causing terror in general public and was in violation of the fundamental right guaranteed under Article 21 of the Constitution, which included the right to live with dignity. Dignity wold be compromised if one is not allowed to live a terror-free life.

The petitioner contended that “Some baraatis, as a show-off and to unnecessarily demonstrate their jubilation, take pride in firing in air from their licensed firearms which they feel as their prized possession. Little do they realise that such firing is neither desirable nor legal and can also kill someone.”

Setting out several suggestions in the PIL, the petitioner prayed for a direction to the Delhi Police Commissioner to ensure that no incident of celebratory firing should go unattended and unpunished. Indulging in such firing was also suggested to be made an offence, with punishment as jail term and the convict be made to pay adequate compensation to the victim or his kin. He also prayed that the Union of India be directed to frame stringent policy/rules/guidelines to curb the obnoxious practice of celebratory firing and also to devolve a robust mechanism to ensure that the firearm licences are not misused and in the event of such misuse, the licence of such persons should be cancelled. The Court has issued notice. [Shyam Sunder Kausal v. Union of India, Writ Petition (Crl. ) No. 4057 of 2016]

Case BriefsHigh Courts

Delhi High Court: While dismissing a petition filed in public interest seeking a direction to the respondent to prohibit cow slaughtering and make arrangements to maximise environmental and economic benefits from the cow to mankind, a bench of G Rohini CJ and R.S. Endlaw J. stated that the issue of ban on slaughter of cows is beyond the domain of judicial decision making and is a policy matter in which the courts under the doctrine of separation of powers are not entitled to transgress.

The Court referred Mohd. Hanif Quareshi v. State of Bihar AIR 1958 SC 731, Manubhai Nandlal Amorsey v. Popatlal Manilal Joshi (1969) 1 SCC 372 and State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat (2005) 8 SCC 534 and stated that the Legislature whenever had deemed necessary has framed appropriate laws in this regard and challenge thereto has also been considered by the Court.

The Court relied on Bal Ram Bali v. Union of India, (2007) 6 SCC 805 where it was held that the Court cannot issue any direction for ban on slaughter of cows as it is a matter of policy on which decision has to be taken by the government, and a complete ban can only be imposed by enactment of an appropriate legislation by the legislature in this regard. Accordingly, the Court dismissed the petition. [Sadh Foundation v. Union of India, 2015 SCC Online Del 14138, decided on 17-12-2015].