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8 Mar

The offence of rape can be permitted to be compounded to promote of family life of complainant and accused: Andhra Pradesh High Court

The Andhra Pradesh High Court issued an order on 4^th January, 2023 in which it held that the offence under sec 376 of IPC can be compounded to promote the family life of complainant and accused. This was held in the case of Gokada Suresh v. State of Andhra Pradesh (CRIMINAL PETITION No.105 of 2023). This case was presided over by Honorable Mr. Justice R. RAGHUNANDAN RAO.

FACTS OF THE CASE

The petitioner was accused of offences under Sections 376, 417 of Indian Penal Code (IPC) and Sections 3(v), 3(1)(r) of SC & ST Prevention of Atrocities Act, 1989. The petitioner moved to this Court to quash the said complaint. During the pending of disposal of the petition, the complainant filed I.A.1 of 2023 to permit her to compromise the case with the accused/petitioner. The issue in this case whether the offence sec 376 of IPC can be compounded.

JUDGMENT

The Court observed the Supreme Court judgment in K Dhandapani Vs. State, in which the Court held that the offence under sec 376 can be compounded in special circumstances where such disposal promote the family life of the complainant and the accused. In the present case, the complainant in I.A.1 of 2023 states that she filed the complaint out of frustration as the accused sought out to marry another girl despite their relationship. They settled matters amicably and are ready to move in with their respective lives. Upon questioning before the Court, she stated that her basic grievance is resolved and want withdraw the complaint which she filed out of frustration and not out of real complaint. The criminal petition is allowed.

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JUDGMENT REVIEWED BY ATTILI LEELA NAGA JANAKI RAJITHA.

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7 Mar

Sajjan Singh vs State of Rajasthan is an important case regarding the basic structure of our Indian constitution. As they make up the majority of the Indian Constitution, there are several essential aspects of the Indian Constitution that cannot be altered. According to Judge Khanna, the fundamental rights that have been accorded to all nationals are the main benefits. Under Article 368 of the Indian Constitution, the Parliament has the authority to change any provision of the Constitution, including the Fundamental Rights.

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Facts of the Case: By putting certain actions approved by State Legislatures in the Ninth Schedule under Article 31B of the Seventeenth Amendment Act, which may be challenged under Articles 14, 19, and 31 of the Indian Constitution, these acts are protected from being challenged.

As the (Seventeenth Constitutional Amendment) Act of 1964 altered the powers that are outlined in Article 226 of the Indian Constitution and did not follow the specific procedure outlined in Article 368 of the Indian Constitution, it was challenged before the Supreme Court of India. Regarding whether or not the basic rights can be modified, the Sankari Prasad Case was once more brought up. The right to judicial review—one of the fundamental elements of the constitution—was removed as a result of the Ninth Schedule’s unique attribute of not being subject to judicial review. The Ninth Schedule contains many legislation dealing with property. The phrase “Pith and Substance” was used in this situation. Whether a major change to the Constitution would be regarded as an amendment or a complete rewrite, and if the latter, whether it would be covered by Article 368’s protections.

Judgment: The Indian Constitution’s Article 368 grants the Parliament the authority to alter any of the Constitution’s articles, according to the Supreme Court. It was asserted once more that the scope of Article 368 is restricted to constitutional law, whereas Article 13 only applies to regular legislation and not to constitutional amendments. According to the majority ruling, Parliament has the authority to change people’s basic rights.

7 Mar

In the Indian legal system, AK Gopalan v. State of Madras (1950) is a defining case. The case gave the Indian judiciary a chance to interpret the Fundamental Rights of the Constitution more broadly. Several clauses from the Indian Constitution’s Chapter on Fundamental Rights are being scrutinized for the first time in this case before the Supreme Court. The crucial points 19, 21, and 22 were addressed in this instance.

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Facts: According to the 1950 Preventive Detention Act, A.K. Gopalan was detained. He claims that he has been detained since 1947 without being put on trial. The criminal provisions that had been repealed applied to him, and he was held responsible. While he was still detained, the Madras government issued an order on March 1st, 1950. He argued that he wasn’t given a fair hearing and that natural justice principles weren’t applied in his case. The order issued under Section 3(1) of the Prevention of Detention Act, 1950, was then challenged by Mr. Gopalan in a case brought under Article 32(1) of the Indian Constitution. He further claimed that the injunction that was made against him was done so maliciously. He further argued that Article 21’s reference to “procedure established by law” means following the rules of the law. In his situation, the law was not implemented, which violated Article 21 of the Indian Constitution. It was raised in this case that the Prevention and Detention Act of 1950 might have breached Articles 14, 19, and 21 of the Indian Constitution, among other things. The second question is whether Articles 19 and 21 of the constitution are related, and the third is whether or not natural justice has been violated.

Judgment: After considering the reasons put out by the parties, the Supreme Court came to the conclusion that there is no connection between Articles 21 and 19 of the Constitution. The court also found that in this instance, natural justice standards were not violated. The court also determined that it is not possible to claim that a state’s detention of a person in line with the law violates Articles 14, 19, or 21 of the Indian Constitution if it was done legitimately. The court ultimately dismissed Mr. Gopalan’s writ petition. In Indian legal history, the A K Gopalan v. The State of Madras case represents a turning point. The Supreme Court determined that Section 14 is unconstitutional and violates fundamental rights by applying the severability concept. The due process clause and international human rights treaties are applicable in Indian courts, according to the court, which endorsed the idea of legal procedure.

6 Mar

Non-occupancy Charges, Transfer Charges Common Amenity Fund Charges and Other Charges, Are Exempt From Income Tax Act Based on the Principle of Mutuality: The Supreme Court

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The Supreme Court in the case of ITO v. Venkatesh Premises Co-operative Society Ltd. (2018) 402 ITR 670/163 DTR 465/301 CTR 514/254 Taxman 313 (SC) held that as per S.4 of Income Tax Act: Charge of income-tax – Mutuality – Receipts by Co-operative society form its members i.e. Non-occupancy charges, transfer charges common amenity fund charges and other charges, are exempt from income-tax Act based on the principle of mutuality

Facts

According to the assessing officer, non-occupancy fees collected by the society from its members that exceeded 10% of the service fees or maintenance fees allowed by the notice of 09.08.2001 are not subject to the principle of mutuality and are, as a result, taxable. This is because the 10% threshold was exceeded by the number of service fees or maintenance fees allowed by the notice. The Commissioner of Income Tax gave his approval of the decision (Appeals). The statement that was made on September 8th, 2001 only pertained to cooperative housing societies, hence the Income Tax Appellate Tribunal found that the 09.08.2001 announcement did not apply to premises societies. It was also found that the transferee member’s payment of the transfer fee was subject to taxation. This was because the transferee did not have the status of a member at the time that the payment was made, which rendered the mutuality principles inapplicable. The finding that the transferee member’s contribution was taxable was overturned by the High Court, but the taxability of the receipt was maintained even though it exceeded what was permitted by the government notice.

Issue

Whether or whether the concept of mutuality may be used to justify excluding from income tax certain collections made by co-operative societies from the members of such societies, such as non-occupancy expenses, transfer charges, common amenity fund charges, and some other charges.

View

The Court did not find any reason to take a view that was different from that taken by the High Court, which was that the notification dated 09.08.2001 is only applicable to cooperative housing societies and has no application to a premises society that consists of non-residential premises. The High Court’s view was that the notification was only applicable to cooperative housing societies. The Court did not find any reason to take a view that was different from that taken by the High Court. This is because the Court did not see any grounds for adopting a viewpoint that was distinct from the one held by the High Court.

Held

Receiving by a Co-operative society from its members, such as non-occupancy expenses, transfer charges, common amenity fund charges, and other charges are exempt from the income-tax Act based on the principle of mutuality, the Court said, rejecting the appeal of the revenue agency. The notification that was issued on September 9, 2001, under Section 79A of the Maharashtra Co-operative Societies Act, 1960 only applies to co-operative housing societies; it does not apply to premises societies that are comprised of non-residential premises. The notification was issued under the authority of the Maharashtra Co-operative Societies Act, 1960. On September 9, 2001, this notice was sent to those affected.

Judgement Reviewed by Jay Kumar Gupta

3 Mar

The question of whether the enshrined rights in the constitution i.e the fundamental rights can be amenable in nature by the Parliament was raised in the landmark Golaknath case. This case is a landmark case in the history of the Judiciary of India. Golaknath vs State of Punjab, 1967, Supreme Court of India, AIR 1967 SCR (2) 762. The court also looked up on a major issue of whether the amendment of 1951 which was the First amendment act 1951 is ultra vires or not?

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Important Aspects to Consider: The Indian National Congress and the Indian Nationalist Movement were founded on the demand for fundamental rights, which are the fundamental rights. These are the fundamental freedoms that mold people’s personalities and protect minorities, economically disadvantaged groups, and other vulnerable groups. With the protection of all of his essential rights, a person is free to design his own life. “The protection of fundamental Rights is vital so that we may not walk in fear of democracy itself,” Judge Hidayatullah eloquently stated. It is essential to uphold democratic ideals. These Basic Rights have been kept as far away from Parliament as possible by our Constitution. The court will declare unenforceable any legislation passed by Parliament that appears to violate the fundamental rights of the populace. As a result of the Constitution’s declaration that they are “justiciable,” anyone whose fundamental rights have been violated by the government may file a lawsuit. Additionally, they are given precedence over the non-justiciable Directive Principles of State Policy, and it is stipulated that the fundamental rights cannot be restricted in order to enforce the Directive Principles of State Policy. Via a number of precedents, the Court in this case has underlined the significance of basic rights: They were referred to as “paramount” in A.K. Gopalan v. State of Madras (1950) and “sacrosanct” in Champakam Dorairajan v. State of Madras (1950). They were defined as “rights reserved by the people” in Pt. M.S.M. Sharma v. Shri Sri Krishna Sinha (1958), “inviolable and inalienable” in Smt. Ujjam Bai v. State of U.P. (1961), and “transcendental” in other cases, which means that even a unanimous bill cannot be passed if it renounces fundamental freedoms.

Facts of the Case: At Jalandhar, Punjab, Henry and William Golaknath’s family owned more than 500 acres of farmland. The government determined that the brothers could only keep thirty acres each, that a few acres would go to renters, and that the remaining acres were surplus under the Punjab Security and Land Tenures Act. The Golaknath family argued against this in court. In 1965, the Supreme Court was also asked to hear this case. The family filed a challenge under Article 32 contesting the 1953 Punjab Act on the grounds that it violated their constitutional rights to own property, engage in any occupation, and be treated equally before the law (Article 19(f) and (g)) (Article 14).

Judgment of the Case: In this particular case, the supreme court had the biggest bench ever at the moment. The petitioners were favoured by the majority (6:5) in the verdict. The majority judgement was written at the time by the CJI in collaboration with other judges (J.C. Shah, S.M. Sikri, J.M. Shelat, and C.A. Vaidiyalingam). Judge Hidayatullah issued a separate opinion because he concurred with Chief Justice Subba Rao. While Justices R.S. Bachawat and V. Ramaswami each filed a distinct minority opinion, Justices K.N. Wanchoo, Vishistha Bhargava, and G.K. Mitter all wrote a single minority opinion. Golakh Nath’s majority opinion reveals scepticism in their hearts over the direction the parliament was taking at the time. The majority questioned if Sajjan Singh’s continued rule would lead to a period when all fundamental rights enacted by our constituent assembly would be modified. Considering the issue of fundamental rights and worrying that democratic India could transition into a dictatorial India. Thus, Sajjan Singh and Shankari Prasad were overridden by the majority. The overwhelming majority claimed that the parliament lacked the authority to alter fundamental rights. Certain rights are protected by fundamental protections that are exempt from parliamentary action. Thus, the majority decided that parliament cannot modify the fundamental rights entrenched in Part III of the Indian Constitution in order to protect democracy from the dictatorial actions of the legislature. The majority of respondents claimed that natural and fundamental rights are equivalent. These rights are crucial for a person’s growth and development.

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Judgment Reviewed by Kushala Simha

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