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12 Jan

UOI allowed to extend the tenure of CBI and ED directors : SC Upholds 10% reservation

Prime Legal

Uncategorized

Title: Dr. Jaya Thakur v UOI

Citation: WRIT PETITION (C) NO. 55 OF 2019

Dated on: 8.1.2024

Corum: Justice B.R. Gavai, Vikram Nath, Sanjay Karol

Facts of the case

The case of Dr. Jaya Thakur v. Union of India involves a challenge to the constitutional validity of the Central Vigilance Commission (Amendment) Act, 2021, the Delhi Special Police Establishment (Amendment) Act, 2021, and the Fundamental (Amendment) Rules, 2021. The Supreme Court of India upheld the validity of the Central Vigilance Commission (Amendment) Act, 2021, and the Delhi Special Police Establishment (Amendment) Act, 2021, which allow the Union to extend the tenure of CBI and ED Directors. The court also rejected the challenge to the validity of the amendment and warned the states and union territories which were defaulting in submitting their responses to the union government for the formulation of national policy on menstrual hygiene, that the court would be constrained to take recourse to the coercive arm of law. That present applicant is General Secretary of M.P.Mahila Congress. In the Madhya Pradesh OBC population is more than 50% but OBC reservation in M.P. State Service & Educational institution only 13%. This is an admitted position in the State of Madhya Pradesh that Schedule Caste community is 16% of the total population and they have got proportionate reservation of 16%, similarly Schedule Tribe are 20% of total population and they have got proportionate reservation of 20%. While OBC community are getting only 14% reservation despite their population are approx.50%. The forward caste population is only 6%. Post the impugned amendment 10% reservation for EWS will be provided to the poor of forward caste. The numbers clearly shows that this reservation of 10% is disproportionate and there is no grounds or justification whatsoever for arriving at this figure of 6%. The 10% reservation provided to the EWS of only forward caste. The petitioner argues that in the present amendment, OBC/SC/ST are not entitled to take the benefits of the Reservation. This is in violation of the Article 14 and 16 of the Constitution of India.

Legal Provision

The petitioners in this case fundamentally question the validity of amendment 103 of the Indian constitution which provides 10% of the reservation to the EWS of society for the admission to the central government run educational institutions except for the minority run education and for the employment in the central government jobs. The petitioner argues that this provision. The amendment does not make such reservations mandatory in State Government-run educational institutions or State Government jobs. The provision was added by amending article 15 and 16 of the Indian constitution. But the petitioner argues that the impugned amendments run contrary to the dictum in the majority judgment, in the case of “Indra Sawhney & Ors. V. Union of India & Ors.” The backward class cannot be determined only and exclusively with reference to economic criterion. The reservation of ten per cent of vacancies, in available vacancies/posts, in open competition on the basis of economic criterion will exclude all other classes of those above the demarcating line of such ten per cent seats. Reservation in unaided institutions violates the fundamental right under Article 19(1)(g) of the Constitution. State cannot insist on private educational institutions which receive no-aid from the State to implement the State policy on reservation for granting admission on lesser percentage of marks i.e. on any criterion except merit.

Court analysis and judgement

The court in this landmark judgement held that the challenge to Central Vigilance Commission (Amendment) Act, 2021 and the Delhi Special Police Establishment (Amendment) Act, 2021 as well as to the Fundamental (Amendment) Rules, 2021 is rejected and the writ petitions are dismissed to that extent and held that all other writs and Miscellaneous Application including all pending applications, if any, shall stand disposed of.

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Written by- Namitha Ramesh

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12 Jan

Traveling overseas No more a violation of tradition : Karnataka HC for the Udupi paryaya ritual

Prime Legal

Uncategorized

Title: SRI. Gururaj Jeevan Rao v State of Karnataka

Citation: WRIT PETITION NO. 634 OF 2024

Dated on: 11.7.2022

Corum: Justice THE HON’BLE MR PRASANNA B. VARALE, CHIEF JUSTICE AND THE HON’BLE MR JUSTICE KRISHNA S DIXIT

Facts of the case

The case is a writ petition filed under Articles 226 and 227 of the Constitution of India by Sri. Gururaj Jeevan Rao, a resident of Bangalore, against the State of Karnataka, Department of Revenue, and other respondents. The petitioner is requesting the first respondent to constitute a committee and frame byelaw/guidelines for conducting ‘paryaya’ in Ashta Mutt at Udupi, in the interest of justice and equity. The petitioner claims that the fourth respondent, His Holiness Sri Sugunendra Theertharu of Puthige Mutt, Udupi, is not entitled to touch the idol of Lord Krishna and disqualified from worshiping the deity because he travelled abroad.

Legal Provision

The Hon’ble court makes it clear that Article 19 of the Indian Constitution provides for the right to travel abroad which is a fundamental right guaranteed in the article 19 and 20 of the Indian constitution which is also guaranteed and can be availed by the to the plaintiff as well. Hence the court held that state cannot be asked to frame guidelines for regulating the Parayaya.

Court Analysis and Judgement

The High Court dismissed the petition, holding that the petitioner failed to substantiate his claim that there was a long-standing tradition in the Mutt that any pontiff (Seer) who travels overseas is disqualified from touching the idol of Lord Krishna and becoming ‘Pariyaya Swami’. The Court also held that the right to travel abroad is a fundamental right guaranteed under Articles 19 and 21 of the Constitution, and that the State cannot be asked to frame guidelines to regulate ‘paryaya’ in such a way as to disentitle a pontiff from becoming ‘Pariyaya Swami’ on the sole ground that he had traveled overseas. The Court further held that ‘paryaya’ system has religious elements that enjoy constitutional protection under Articles 25 and 26, and that the courts cannot readily interfere in such matters and dismissed the petition.

Written by- Namitha Ramesh

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12 Jan

Eknath Shinde Faction is the original Shiv Sena : Maharashtra Speaker in the crisis of split of shiv sena party

Prime Legal

Uncategorized # Supreme Court, #Constitution, #Eknath Shinde, #Law report, #Political Crisis, #Shiv Sena

Background:

The Maharashtra political crisis revolves around the disqualification of Eknath Shinde Faction of the Shiv Sena party after the Maharashtra election in 2022. The same was challenged by Shinde in the SC. Thackeray contended to the SC that the MLA’s of the Shinde-led Shiv Sena party can only save themselves through merger to another party. The dispute arises on which association is the real or original “shiv sena”. Subsequently, the Thackeray Faction plea was rejected by the SC and the same was transferred to a 7-bench court. Thackeray faction pleaded that the election commission should be challenged on recognizing Eknath Shinde led shiv sena to be original shiv Sena. On May 2023, the SC held the verdict that Eknath Shinde will continue as the CM of Maharashtra. The election commission gave the Shinde led party the original shiv sena sign of bow and arrow and the official name of shiv sena.

Current Scenario:

The SC gave appropriate notice to the Speaker, Rahul Narwekar to adjudicate on the matter relating to disqualification by January 10^th 2024 and criticized the delay in adjudication process.

The Maharashtra Legislative assembly speaker, Rahul Narwekar gave a final verdict that the Eknath-Shinde led party as the original Shiv Sena party. He also rejected the disqualification notice produced by Thackeray to disqualify 16 MLA’s of the ruling party, including the chief minister, Eknath Shinde.

The challenge of Eknath Shinde against Thackeray is that he is the paksh pramukh which means he is the party head of the shiv sena party on the basis of legislative majority and Thackeray did not have the power to remove him. However, as per the 1999 party’s constitution amendment, the national executive as the highest party body.

References were taken to the 10^th Schedule of the Constitution which mentions about Anti-defection laws. It states that a member shall be disqualified if he joins another political party after election takes place. It also mentions that a disqualification on the name of defection cannot be applied in the cases of merger. Under the 10^th Schedule, the speaker acts in the power of a judge and decides whether the grounds of disqualification justified.

The speaker also stated that in the name of 10^th Schedule, a dissent or disqualification cannot be enforced within a party over disciplinary issues. The main reason for upholding Shinde faction to be the original shiv sena was because Thackeray faction failed the test of legislative majority. The Shinde faction had the majority of the MLA’s present in the shiv sena members with 37MLA as opposed to 18MLAs in the Thackeray faction.

Interpretation of Schedule 10 of the Constitution:

The genesis of Schedule 10 of the constitution states that a defense for anti-defection is based on the merger of parties and not the split of parties. In the current matter, the factual basis of Shinde let party is that it did not merge to another party but rather split from shiv sena. This is not permitted under the Schedule 10 of the constitution.

The speaker contended that whoever the majority MLA lies with is the original party. It is argued that the test of “legislative majority” is not recognized under the 10^th Schedule as the only recourse available for anti defection is merger. It should be noted that from the 2019 elections, the Shiv Sena party was fundamentally led by the Thackeray faction and not by the Shinde faction. The supreme court on its verdict regarding the matter held that a legislative party should be distinguished from a political party. It also held that the power to appoint a government whip lies within the political party which was Thackeray led government at that time.

The Thackeray led faction has planned to challenge the verdict in the SC on the principal contention of challenging the rule of ‘majority legislators’ not being the core principle of Schedule 10.

Conclusion :

The political dynamic of Maharashtra’s shiv sena party is that of game of cat and mouse. Despite the CM being won on majority supporting him, the challenge to the verdict shows a long lasting battle between Shinde and Thackeray in the upcoming years.

The court is also to fact the question whether the parliament or the speaker should have the power of adjudication without having bias over the parties involved.

11 Jan

Bombay HC calls demolition notice against the legal system, sets aside notice against shiv Sena member

Prime Legal

Uncategorized #bombayhc, #law, #legalnews, #partnership, #propertylaw

TITLE : Sadanand Gangaram Kadam V Additional Commissioner, Konkan Bhavan and Ors

CORAM : Hon’ble Justice Milind N. Jadhav

DATE : 6^th January 2024

CITATION : WP No. 203 Of 2024

FACTS

The present Writ Petition was against Demolition Notice against the petitioner. The petitioner purchased a property of a firm called M/s. Sai Star Distributors. One of the 5 partners were the respondent and the petitioner. The respondent retired from the firm and the share of his property was shifted to the petitioner. The petitioner then constructed a resort after obtaining permission from the appropriate authorities. It was submitted that NA permission was received and in the miscellaneous conditions, any dispute with respect to ownership of the said land would be on the Petitioner in the event of any dispute. The respondent filed a private complaint alleging a breach of the NA permission granted. Petitioner filed statutory Appeal under Section 247 of the Maharashtra Land Revenue Code, 1966 before the Additional Collector along with the stay Application. Subsequently a demolition notice was issued.

LAWS INVOLVED

Section 247 of the Act :

(1) In the absence of any express provisions of this Code, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue or survey officer specified in column I of the Schedule E under this Code or any other law for the time being in force to the officer specified in column 2 of that Schedule whether or not ,such decision or order may itself have been passed on appeal from the decision of order of the officer specified in column I of the said Schedule :

Provided that, in no case the number of appeals shall exceed two.

(2) When on account of promotion or change of designation, an appeal against any decision or order lies under this section to the same officer who has passed the decision or order appealed against, the appeal should lie to such other officer competent to decide the appeal to whom it may be transferred under the provisions of this Code.

ISSUES

Whether the complaint against the petitioner valid along with the demolition notice issued?

JUDGEMENT

The court held that though there is a statutory appeal pending, the facts are extremely strong and requires intervention of this court so no party can take advantage of the legal system and take is for granted.

The demolition notice was set aside and an ad-interim relief was given to the petitioners.

Written by- Sanjana Ravichandran

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11 Jan

Judicial intervention by Delhi HC required for the admission of EWS child in Delhi school

Prime Legal

Uncategorized

Title: OJAS SATYAWALI THROUGH HIS MOTHER BHAWNA PATHAK v DIRECTORATE OF EDUCATION & A

Citation: W.P.(C) 12124/2023

Dated on: 9.1.2024

Corum: HON’BLE MR. JUSTICE C. HARI SHANKAR

Facts of the case

The petitioner is a 7-year-old boy belonging to the Economically Weaker Sections (EWS) stratum of society. His parents applied for admission of the Petitioner under the EWS category in the Class I for the 2023-2024 Academic Session. Dwarka International School (the Respondent School) – herein was selected as the most preferred school of choice in the application. Computerized draw of lots was conducted on 14 March 2023. As per the results which were released online, the petitioner succeeded in securing admission to the respondent- School. The Directorate of Education (DoE), by circular dated 14 March 2023 required the successful applicants to approach the school allotted to them. The writ petition avers that the petitioner made continuous efforts to get himself admitted in the respondent-School but that the respondent-School was unwilling to admit the petitioner. In these circumstances, the petitioner approached this Court by means of the present writ petition, praying for issuance of a writ of mandamus, commanding the respondent-School to admit the petitioner in Class 1. When this writ petition had come up for hearing before this Court on 15 September 2023, the contention of Mr. Gautam who appeared on behalf of the respondent-School was that there was a discrepancy in the address furnished in the application made by the petitioner to the DoE, and the actual residential address of the Petitioner. Incidentally, the difference is only that in the registration form, the residential address of the petitioner was different from that of it in Aadhar Card. even a spot verification had been conducted and it was found that when they spoke to the petitioners mother it was found that she was rescinding elsewhere.

Legal provision

A writ of mandamus was filed for the current case. A writ of mandamus is a legal order issued by a court to compel a public authority or official to perform a duty that they are legally obligated to do. It is an extraordinary remedy that is used to enforce the performance of public duties that have been refused or neglected.

Court analysis and judgement

The High Court of New Delhi allowed the writ petition filed by the writ petitioner and ordered the respondent party (School) to regularize the admission of the petitioner and The petitioner shall continue to receive education in the respondent-School in the EWS/DG/CWSN category in accordance with law.

Written by – Namitha Ramesh

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