The Legal Recap of 2017 is full of new ups and downs in relation to the legal updates from various corner of the nation, with the ups vividly and elaborately outnumbering the downs. The nation saw various reformist laws being passed by the legislature on the one hand and several reformist judgments, recognizing the rights of the citizens being delivered Hon’ble Supreme Court, on the other. Let us take a look at a few of these legal developments.
Regulations & Legislations (Month wise)
The Specified Bank Notes (Cessation of Liabilities) Act, 2017
This Act was enacted, repealing and replacing the ordinance in regard to the unprecedented and inordinate decision taken by the government in demonetization of the previously valid, Rs. 500 and Rs. 1000 currency notes.
This Act was enacted retrospectively with an intention of curbing the possibility of the rise of a parallel economy, which would deal with the earlier demonetized currency notes. The Act contains penal provisions which make way for fine to be imposed if a person knowingly or voluntarily, holds or transfers such notes. However, holding 10 or lesser number of such notes, irrespective of denominations, would not attract a penalty. Similarly, for study purposes, holding up to 25 notes are allowed.
The Maternity Benefit (Amendment) Act, 2017
The Maternity Benefit Act is one of the classical examples where the State acts to fulfill its role as a welfare state. The Act aims to protect the employment of women during the time of their maternity, to allow them maternity benefit – a fully paid absence from work, to take care of themselves and their children.
The changes brought in by the Act were revolutionary. The Act now applies to all the institutions which employ 10 or more people. It increases the period of maternity leave to 26 weeks from the earlier limit of 12 weeks; however, this is applicable to first 2 children and after that, the allowed leave is of 12 weeks. The Act provides that establishments with more than 50 employees should have a crèche facility, where the women should be allowed to make 4 visits and feed their children during working hours. The Act also provides that the employer may permit the woman to work from home if it is possible to do so.
The Finance Act, 2017
Finance Act brought in certain gigantic and unprecedented changes in the history of India. Some of the key highlights of the Act were:
- Insertion of Section 139AA in the Income Tax Act;
- Prohibition on cash payments beyond certain limits;
- Merger of certain quasi-judicial tribunals; and
- Amendment in rules of funding of the political parties.
The GST Acts
In order to bring uniform Goods and Services Tax, four laws were passed. These were The Central Goods and Services Tax Act, 2017, The Union Territory Goods and Services Tax Act, 2017, The Integrated Goods and Services Tax Act, 2017, and The Goods and Services Tax (Compensation to States) Act, 2017. These legislations deal with tax levy by Centre, inter-state supply, and union territories respectively. The last act provides the mechanism to compensate the States for their losses.
These Acts were enacted to take the country closer to indirect tax reforms and make the domain of indirect taxes less cumbersome and easy to follow and understand. The GST subsumed Central Excise, VAT, Service Tax etc. to create a uniform market.
The Mental Healthcare Act, 2017
The Mental Healthcare Act was one of the path-breaking legislative changes brought in the Indian scenario. The Act intended to change the way in which mental illness is looked upon. It extended the benefits of the Right to Life to mentally ill people and brought the law in line with the UN Convention on the Rights of Persons with Disabilities (UNCRPD).
The Act tries to prevent discrimination and harassment of the people falling into a specified category. It is broader in its scope and ambit than the earlier law, the Mental Healthcare Act, 1987, which only provided general protection against indignant and cruel treatment.
In one of the bolder steps, the Act decriminalizes the attempts to suicide and presumes persons making such attempts to be suffering from stress. Under the Act, the duty is cast on the government to provide care, treatments, and rehabilitation to such persons.
The HIV and AIDS (Prevention and Control) Act, 2017
Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome, or HIV AIDS, remains one of the most deadly and incurable diseases in human history. The person who is unfortunate enough to acquire this disease was further subjected to various forms of discrimination from various sectors of the society. This Act was passed in a bid to control the spread of HIV AIDS and also to protect human rights of people who end up affected by it.
The Act takes due consideration of the privacy of the HIV AIDS affected persons where it states that the disclosure of the fact that a person is affected by AIDS shall be done only either after his consent or after a Court Order. It also recognizes the right of the affected person to not be excluded from the shared household and provides that he would be able to use the said household in a non-discriminatory manner.
The Act also makes the publication, propagation, advocacy or communication of the feeling of hatred against any HIV AIDS affected person a punishable act, with punishment being imprisonment, which can extend from 3 months to 2 years or a fine which may extend to Rs. 1 Lakh.
The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017
The Act seeks to repeal antique laws like the Admiralty Court Act, 1861, the Colonial Courts of Admiralty Act, 1890, and to bring the law in line with the present day global context.
Due to the nature of the previously prevalent laws, the matters related to admiralty disputes could only be decided by the High Courts of Bombay, Calcutta, and Madras. This situation created a state of affairs where there was lack of proper governance. However, now the jurisdiction is extended to the High Courts of Karnataka, Gujarat, Kerala, Orissa, Hyderabad and other High Courts, as notified by the Central Government. This jurisdiction extends up to the territorial waters. Further, the Act is an attempt to consolidate the existing laws relating to Admiralty jurisdiction courts, proceedings on maritime claims, the arrest of the vehicle and related issues.
The Footwear Design and Development Institute Act, 2017
The Act provided the Footwear Design and Development Institute (FDDI) the status of the ‘Institution of National Importance’. FDDI was granted this status under the Ministry of Commerce & Industry.
The main functions of the FDDI would now be related to design and development of footwear and leather products, preparation of curriculum in that regard and development of an international center in the leather sector. The FDDI would now be able to grant degrees, diplomas, and certificates in various programmes.
The Indian Institutes of Information Technology (Public-Private Partnership) Act, 2017
The Act declares the pre-existing 15 Indian Institutes of Information Technology (IIITs) established through public-private partnership as ‘Institutions of National Importance’. This would allow the IIITs to use the nomenclature of Bachelor of Technology (B.Tech), Master of Technology (M. Tech) or Ph.D. degrees as issued by other Institutions of national Importance or Universities.
The Banking Regulation (Amendment) Act, 2017
The Act inserts certain provisions to empower the Reserve Bank of India to give directions to banks to act against loan defaulters. The Act seeks to resolve the issue of stressed assets and for this purpose, allows RBI to issue directions to banks for resolution of stressed assets.
The Act also provides that if the proceedings are to be started, they would be initiated under the Insolvency and Bankruptcy Code, 2016. The Insolvency and Bankruptcy Code, 2016 is known for bringing in stricter timelines for resolution of insolvency processes. Hence, it can be seen that the major emphasis is also on a time-bound resolution of stressed assets.
The Indian Institutes of Management Act, 2017
This Act declareS the 20 existing Indian Institutes of Management (IIMs) as ‘Institutions of National Importance’. This confers the power of granting degrees to the IIMs, which earlier were only entitled to grant postgraduate diplomas.
Judgments (Month wise)
Abhiram Singh v. C.D. Commachen & Ors.
A 7-Judge Constitution Bench of the Supreme Court, while interpreting section 123(3) of the Representation of Peoples Act, by a majority of 4:3 held that the practice of seeking votes in the name of religion is a corrupt practice. The case was filed after BJP leader Abhiram Singh’s election in 1990 Maharashtra Assembly was set aside on the ground that he appealed to the voters on the basis of Hindu Religion.
The minority opinion, however, was that such an interference by the Court would amount to ‘redrafting’ of law by the judiciary and therefore, such issues should be left for the legislature to decide.
Krishna Kumar Singh v. the State of Bihar
A 7-Judge Constitution Bench held that re-promulgation of an ordinance by the legislature is against the Constitution and the democratic process. The court deemed it akin to fraud upon the Constitution and subversion of democratic process.
The Court further laid down that the satisfaction of President (u/r Art. 123) and Governor (u/r Art 213) while issuing Ordinance is not immune from judicial review.
Vitusah Oberoi v. Court of Its Own Motion
A Bench headed by the then Chief Justice of India, J. T.S. Thakur held that a High Court cannot initiate contempt proceedings or punish for the contempt of the Supreme Court. The SC held that the High Court’s power under Article 125 of the Constitution does not extend to punishing for the contempt of a superior court. The bench further held that if, despite having powers, the Supreme Court does not invoke contempt proceedings, no other court can do so.
The SC quashed the order of the Delhi High Court which found the Editor, Publisher, and Cartoonist of the ‘Mid-Day’ guilty of contempt over publishing a cartoon related to a former CJI.
State of Karnataka v. Selvi J. Jayalalitha
The Division Bench of J. PC Ghose and Amitava Roy, Supreme Court, restored the conviction and sentence imposed by the trial court in the disproportionate assets case. By the judgment, the court affirmed the conviction of V.K. Sasikal, Ilavarasi & Sudhakaran. The proceedings against Jayalalitha were abated due to her death.
Thus, as per the existing laws, V.K. Sasikala had to serve 3 years and 6 months in jail, as she had already served around 6 months in jail. She would further be disqualified from contesting elections for the next 6 years.
T.A. Kathiru Kunju v. Jacob Mathai & Anr.
The Supreme Court held that mere negligence or error in judgment on the part of an advocate would not amount to professional misconduct. The view taken by the Disciplinary Committee that the appellant was an advocate, he should have been more careful and therefore was guilty of gross negligence, was rejected by the court.
Hussain v. The Union of India
While continuing with a strict view on strikes by lawyers and suspension of the Court work on different pretexts, the Division Bench of J. AK Goel and J. UU Lalit held that such strikes and suspensions of work are illegal in nature.
Union of India v. Besco Ltd.
A Division Bench of the Supreme Court, upholding the judgment of the High Court which nominated an independent arbitrator, held that, even if the agreement between the parties specified an arbitrator, the Chief Justice or the designated judge is free to appoint an independent arbitrator, after due regard to the qualifications has been paid, and if the circumstances require the same.
M.C. Mehta v. The Union of India
The Supreme Court by this landmark judgment took another step forward in regard to environmental protection and enforcement of emission standards. Taking into consideration the rising levels of pollution in the country and how it has become a problem in certain areas of the nation, the court held that from April 1, 2017, only vehicles compliant with BS-IV standards shall be manufactured, sold and registered across the nation, thus putting a complete stop on any transaction in vehicles of the old BS-III standard.
The court herein also rejected the contention of the automobile manufacturers that they should be allowed to sell the BS-III vehicles till the accumulated stock lasts. This leads to massive clearance in a stockpile of automobiles towards the end of March and starting in April 2017.
Bhagwati @ Reena v. Anil Choubey
The Supreme Court held that at the time of marriage if the husband was a major and the wife was a minor, then the husband cannot seek annulment of marriage with this wife on the ground that she was minor at the time of marriage. It is only the minor spouse who has the right to seek annulment of marriage.
Mukesh & Anr. v. State for NCT of Delhi & Ors.
The Supreme Court upheld the death penalty awarded to the accused of the Nirbhaya Rape and Death case. The judges, J. Dipak Mishra, J. R. Banumathi, and J. Ashok Bhushan, all gave a unanimous verdict and J. R. Banumati wrote the concurring judgment.
The accused pointed out various mitigating circumstance, like his young age, family conditions, and ill-health of parents etc. However, the court after considering both aggravating and mitigating circumstances came to the conclusion that the aggravating circumstances outweighed the mitigating circumstances. Resultantly, the Court confirmed the death penalty.
In Re: Shri Justice C.S. Karnan
In an almost unprecedented event, a 7-Judge Bench of the Supreme Court held a sitting judge of the Calcutta High Court, J. C.S. Karnan, guilty of contempt of the Court and sentenced him to 6 months of imprisonment.
Binoy Viswam v. Union of India & Ors.
The Supreme Court, while looking into the validity of the Section 139AA, which was inserted by the Finance Act, 2017 and mandated the linkage of Aadhaar with Income Tax returns held that the provision is valid in nature and passes the test of constitutionality. However, at the same time, it was also said by the Court that this provision would not have a retrospective effect.
The Court also pointed out that though the provision in itself is constitutional, it hinges upon the constitutionality of the Aadhaar, which itself is challenged. Hence, there shall be partial stay enforcement of this provision till the outcome of the judgment on the validity of Aadhaar.
Rajesh Sharma v. State of U.P. & Anr.
The Supreme Court, taking into consideration the rampant misuse of Section 498A of the Indian Penal Code, issued new guidelines regarding the registration of FIR as well as an arrest in cases falling under this section.
The court, taking into consideration that the Section has been widely used to harass families, passed guidelines about the establishment of Family Welfare Committees in each district by DLSA, which would primarily look into complaints and prepare reports on factual aspects. The Committees would also give their opinions and it is only then that the matter would kick into motion. Till the report of the Committees is received, no arrest should normally be made.
Shayara Bano v. Union of India & Ors.
The Supreme Court in a landmark judgment declared that the practice of instant Triple Talaq is unconstitutional. The Judgment was passed with 3:2 majority.
The majority, while deciding the validity of Triple Talaq, gave different reasons. J. Nariman and J. Lalit held that the practice is unconstitutional as it violates Article 14 of the Indian Constitution which provides Right to Equality to each and every citizen of the nation. Whereas J. Joseph struck the practice down as, in his opinion, it went against Shariat and Quran.
Justice K.S. Puttaswamy v. Union of India & Ors.
In a unanimous judgment delivered by 9:0 majority, the Supreme Court declared that the Right to Privacy is a Fundamental Right under the Article 21 of the Indian Constitution, thus making privacy an intrinsic part of the life and liberty of a person.
In doing so, the 9-Judge Bench overruled the earlier judgments in MP Sharma and Kharak Singh cases.
Rakesh Kumar Paul v. the State of Assam
The Supreme Court held that, an accused is entitled to statutory bail/default bail under Section 167(2)(a)(2) of the Cr.P.C. if the police fails to file a charge sheet within the time period of 60 days of the arrest of the accused provided the offence for which the accused is guilty is punishable with imprisonment up to 10 years.
Indira Jaising v. Supreme Court of India
In what can be considered one of the most important judgments from the perspective of the Bar, the Supreme Court brought in a new mechanism for designating the advocates as seniors. This was done in a bid to bring in transparency into the process. It was ruled by the SC that all the matters related to the said designation would be dealt with by a committee headed by the Chief Justice. Two senior-most judges, along with the Attorney General and a member of the Bar would form the five-member committee, which would deliberate on the matters of designation.
It was further provided that the same process was to be followed in all the High Courts as well.
Toyota Jidosha Kabushiki Kaisha v. M/S Prius Auto Industries Limited
The Supreme Court in yet another path-breaking judgment held that a mark maybe well-known abroad, but that fact does not mean that the same was known in India. The person who is claiming infringement must provide that he had acquired goodwill and reputation in India. It was reiterated that IP rights are territorial and not global in nature, and in order to prove that the infringement was existing at a place, it must be proved that at the time when the alleged infringement started, there was goodwill which existed.