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Retrospective effect not applicable when a government resolution is passed after invalidation of constitutionality of the SEBC Act : Bombay HC on SEBC students applying in the category of EWS

TITLE : Akshay Ashok Chaudhari v Government of Maharashtra

CORAM : Hon’ble Justice Nitin Jamdar and Hon’ble Justice Manjusha Deshpande

DATE :  22nd  December, 2023

CITATION : WP NO 2722 of 2023

FACTS

The Maharashtra State Reservation For Socially And Educationally Backward Class Act, 2018 was challenged for its constitutionality in the hon’ble court and was later challenged in SC which held it unconstitutional. The Act conferred a right on the individuals from the Maratha community, SEBC category, to 13% of total admissions in educational institutions and 16% of total appointments in direct recruitment for public services and posts within the State. After the interim order passed by the SC, the government of Maharashtra issued government resolution for the candidate who applied under SEBC category for public examination and were told to appear in the category of EWS (economically weaker section). This was challenged by the EWS category candidates and the tribunal upheld the challenge and disqualified those who appeared under SEBC category. The same is challenged in this hon’ble court by the SEBC candidates.

LAWS INVOLVED

Article 16(6) of the Constitution of India states that :

Equality of opportunity in matters of public employment.-

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

[(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category

ISSUES

Whether the tribunal erred in holding the position that SEBC candidates cannot apply in the category of EWS as per the Government Resolution

JUDGEMENT

The contentions of the petitioners were that the tribunal erred in holding the position that the GR was applied retrospectively. The respondents claimed that In the Advertisements pertaining to the recruitment processes, the vacancies for SEBC and EWS were notified separately, and even the procedures prescribed for procuring the certificates under the said categories were different and distinct under the various GRs.

The court held that the advertisements mentioned the specified number of posts allotted as  per the reservation and any changes would be communicated. The Advertisements inherently acknowledged that the reserved posts were not fixed and that any alterations would be duly notified. Further it held that applying the principle of retrospectivity requires consideration of the fact that GRs were issued under the executive power of the State to address perceived injustices for a specific class. The retrospective effect reasoning given by the tribunal was set aside by the court.

Subsequently, the tribunal’s order was set aside and the petition was allowed.

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Written by- Sanjana Ravichandran

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Article 14 of the constitution cannot be enforced on the basis of negative equality : Bombay HC quashed writ challenging the constitutionality of provisions of Bombay Entertainment Duty Act, 1923.

TITLE : Drishti Adventures Sports Private Ltd and Ors V State of Maharashtra

CITATION : W.P No 2158 of 2005

CORAM : Hon’ble justice G.S Kularkani and Hon’ble Jitendra Jain

DATE:  4th December, 2023

INTRODUCTION :

A writ petition was filed under Article 226 to strike down Sectio 3(1) and Section 3(5A) of the Bombay Entertainment Duty Act,1923 as ultra vires of the constitution on the ground that activities about water based activities and amusement park activities are not distinguished and hence cannot be taxed.  

FACTS :

The respondent passed a resolution granting a lease of 500 sq. mts of land to Maharashtra Tourism and Development Corporation for the development of water sports activities. The lease was granted for a period of 10 years to develop manage and operate water sports activities on the basis of terms and conditions set.

On 14th March 2002, the petitioners addressed a letter to the MTDC requesting exemption from entertainment duty payment. On 26th March 2002, the petitioners addressed a letter to the respondents recording that the water sports activity does not fall under the Bombay Entertainment Duty Act, 1923. On 27th March 2002, respondent issued a demand notice asking the petitioners to pay the entertainment duty of Rs.8,53,943.

The contention raised by the petitioners is that the respondents have not recovered entertainment duty from the persons purportedly carrying on/engaged in similar activities in the State of Maharashtra and therefore, under Article 14 of the Constitution of India, the petitioners are discriminated and the petitioners too should not be made liable for payment of entertainment duty on its water sports activities.

COURT’S ANALYSIS

The court held that the petitioners contention is in the nature of negative equality, for the reason that the petitioner is questioning the action of the State Government in the levy of the entertainment duty only. The court held that it is unacceptable on the face of the record for the petitioner to claim that the money levied by paid on the way of protest. Additionally, it was held that such claim is not under the scope of Article 14 as the claim is negative equality whereas Article 14’s scope is purely upon positive equality.

Secondly, on the issue of Constitutionality of the said provisions the court held that there is a clear distinction between water based activities and amusement park activities. The legislative on that matter is clear. The petition was dismissed.

 

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Written by- Sanjana Ravichandran

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Validity of the use of loudspeakers by religious establishments in the lens of the judiciary

Introduction :

The Gujarat HC[1] in its recent plea held that a 10-minute use of loudspeakers during Azan (religious Muslim prayer) to not be causing noise pollution. This has stirred a question of whether the use of loudspeakers for religious purposes is valid as per the law or not. Secondly, does the use of loudspeakers cause noise pollution and banning them is violative of the provisions of the Constitution.

Legislative View :

The term noise is derived from the term nausea in Latin and has been defined as an unwanted sound with a potential health hazard to health and communication. It is also to cause irreversible damage to the environment.

Section 2(a) of the Air (Prevention and Control of Pollution) Act, 1981 includes noise in the definition of “air pollutant”. Noise Pollution is considered to be a public nuisance and is Punishable under Section 268, 290 and 291 of the Indian Penal Code. Section 268 states that,

“268. A person is guilty of a public nuisance who does any act or is guilty of an illegal omission, which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right[2]

The government of India drafted the regulations for controlling noise pollution in the Noise Pollution (Control and Regulation) Rules, 1999 which was enforced in the year 2000.

The rules laid down that the control of noise pollution is in the control of state governments and ensure that the noise level is as permitted. It also stipulated that loudspeakers and public address systems should not be used unless there is a prior authorization of use. Furthermore, it provided that a loudspeaker or public address system shall not be strictly used at night (10 PM- 6.00 AM) unless there is permission from the State Government.

Judicial Pronouncements :

The question that often arises is whether the ban of loudspeakers in religious institutions is whether it is against Article 25 and 19(1)(a) of the Constitution of India. Article 25 gives the right to religion and Article 19(1)(a) guarantees freedom of speech and expression to the citizens.

The Kerala High Court in the case of P.A Jacob  v Superintendent of Police Kottayam[3] deduced that the use of loudspeakers in a Christianity denomination would disrupt the law and order by causing inconvenience to the other group of citizens. It held that an high volume noise would be against the principle of right to life and personal liberty guaranteed under Article 21 of the Constitution Of India.

Additionally, the Supreme Court in the case of Noise Pollution (V) Re[4], the hon’ble court held that freedom from noise pollution is a part of the right to life under Article 21 of the constitution. It also relied on the Noise pollution rules to point that it is the State’s duty to ensure the noise level of a particular jurisdiction.

The Court further held that people cannot shelter under Article 19(1)(a) and justify noise pollution. It reasoned that although right to freedom of speech and expression are of fundamental in nature, it is not absolute and secondly, Article 21 supersedes Article 19 of the Constitution.

In another case of the Supreme Court, Church of God in India v. K.K.R majestic Colony Welfare Assn[5], it was held that no religion preaches to use voice amplifiers or loudspeakers to promote and propagate the religion. It laid down that religious establishments should keep in mind the society and the harm that may be caused because of the noise.

The Bombay High Court[6] in August 2016 held that the use of loudspeakers is not a fundamental right conferred under Article 25 of the Constitution of India. Further, it was held that all religious places are bound by the noise pollution rules and must have permission from the appropriate authorities working for the state. The same was reiterated by the Punjab High Court[7] and ordered that,

“The States of Punjab, Haryana and Union Territory, Chandigarh are directed to ensure that no loudspeaker or public address system shall be used by any person including religious bodies in temples, mosques and gurdwaras without written permission of the authority even during day time, that too, by getting an undertaking that the noise level shall not exceed more than 10dB(A) peripheral noise level”

In recent times, the Madras High Court in the case of K.Bose V The district Collector[8] held that the state and its machinery should ensure that no individual or institution, whatsoever may be cause any noise pollution affection the rights of the residents living in that area.

A Public Interest Litigation was filed to prohibit the use of loudspeakers during Azan in the high court of Karnataka[9]. The question that raised was whether the use of loudspeakers during Azan violate the right to religion of people of other faiths. The court held in the negative and refused to order mosques to stop playing azan on loudspeakers.

However, the court directed the authorities to implement the Noise Pollution rules and the state government to take action regarding the same.

In the case of K.Ramesh V The State of Tamilnadu[10], the court stated that fundamental rights and fundamental duties go hand in hand. Any religious institution exercising their right to practice must be reminded off their duties towards other citizens, upon whose rights are also to be protected.

The court held that all religious institutions must adhere to the rules of the law for the purpose of conducting their respective religious activities.

“Any such religious activities affecting the rights of the other citizen and any infringement of rights under the Constitution of India must be viewed seriously and all appropriate actions are to be initiated in the event of any complaint or otherwise”

The same ratio was held by the Allahabad High Court in the case of Afzal Ansari V  State of UP[11]. The court added Azan may be an essential and integral part of Islam but recitation of Azan through loudspeakers cannot be said to be an integral part of the religion to guarantee protection under Article 25.

The decision of Gujarat Hight Court[12] on rejecting the plea to ban Loudspeakers during Azan is based on the mere knowledge that the voice used during Azan is relatively slow and 10 minutes of the same wont cause harm and compared the same to the use of arati and drums in hindu temples. Therefore, the test to whether a noise constitute to pollution is dependent upon the decibel of the sound and not the usage per se. 

Conclusion

It can thereby be said that the controlling of noise pollution purely lies in the hand of the state. There is no exemption or gateway to escape the noise pollution rules. It is mandatory to seek permission before using loudspeakers from the state authority.

It is also to be noted that, Article 21 prevails as in a greater ambit, Right to life and personal liberty includes the right to live In a pollution free environment which also includes noise pollution. Although Article 25 and 19 are fundamentally important, the rights are not absolute and they pertain of certain rules and conditions.

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Written by- Sanjana Ravichandran

[1] Narsi Benwal, If 10 mins of Azaan causes noise pollution, what about loud music, bhajan in temples? Gujarat High Court rejects PIL against Azaan, BAR AND BENCH (Nov 29, 2023) https://www.barandbench.com/news/if-10-mins-azaan-causes-noise-pollution-what-loud-music-bhajan-temples-gujarat-high-court-rejects-pil-azaan.

[2] The Indian Penal Code, 1860

[3] AIR 1993 Ker 1

[4] (2005) 5 SCC 733

[5] (2007) 7 SCC 282

[6] Dr. Mahesh Vijay Bedekar v The State of Maharashtra (2016) SCCOnline Bom 332

[7] Reet Mohinder Singh Virk v State of Punjab & Ors (2023) PHHC 107430

[8] K.Bose V The district Collector , W.P (MD) No. 9099 of 2004

[9] Chandrashekhar R v State of Karnataka WP 10473/2022

[10] K.Ramesh V The State of Tamilnadu W.P No 21143 of 2014

[11] 2020 SCCOnline All 592

[12] Id,1

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The Allahabad High Court held that section 17 UP-Lokayukta And Uttar Pradesh Lokayukta Act Does Not Preclude High Court’s Authority Under Article 226

Title: Masood Ahmad Khan v. State of UP and Ors.

Decided on: 06 November, 2023

+ Writ- A No. 10788 of 2023

CORAM: Hon’ble Justice Munir J

Introduction

Based on a review of its ruling by any court, the Allahabad High Court ruled that the bar established in Section 17 of the Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975 does not apply to the High Court’s jurisdiction under Article 226 of the Indian Constitution.

Facts of the Case

Due to accusations that the petitioner had falsified his birthdate in the service record, his services were terminated. The writ court overturned the termination judgment on the grounds that he had already reached superannuation age. This was predicated on allegations that he had falsified his birthdate in the service record. Nevertheless, the petitioner was suspended pending further investigation. The petitioner’s attorney argued that the High Court had already overturned the petitioner’s termination without allowing the Nagar Palika Parishad to take up the case again. Because of this, the respondents lacked the authority to suspend the petitioner and bring legal action against him for allegedly falsifying his birthdate in the service book.

Courts analysis and decision

The Court decided that manipulation is not just “overwriting” or “cutting,” but that it can also be accomplished in other ways. Therefore, the absence of “overwriting” or “cutting” does not prove that the records were not altered. The Court decided that Nagar Palika Parishad is still free to carry out additional investigation despite this fact being noted in the decision. The Court noted that Section 17(2) solely restricts the regular jurisdiction of the Courts and cannot be interpreted as limiting the High Court’s authority under Article 226 of the Indian Constitution. As a result, the Court denied the petition and instructed the inquiry officer to wrap up the investigation in three months.

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Written by- Hargunn Kaur Makhija

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India that is Bharat: A legal perspective (NCERT Panel is set to use Bharat instead of India in textbooks)

NCERT to change India Into Bharat in textbooks:

The recommendation of a high-level committee appointed by the National Council of Educational Research and Training (NCERT) to update the social sciences curriculum for schools is to replace the word “India” in school textbooks with the word “Bharat,” which has infuriated opposition politicians. The NCERT stated that it was “too premature” to comment on the matter, emphasizing that the panel’s recommendations had not yet been accepted.

four months ago, the idea was submitted to the NCERT, which approved the suggestion to substitute “Bharat” for “India.” Referencing the Hindu Vishnu Purana, he argued that the term “Bharat” was a more fitting moniker for the nation.

Prof. Shinde stated, “Everyone on the panel has decided to replace India with Bharat.” Additionally, the committee suggested that all Indian dynasties be included equally in textbooks rather than just one or two. We have also suggested that the syllabus be updated to reflect the ongoing national discoveries. Prof. Shinde said, “These discoveries can be historical or archaeological, among other things.

The history of the name India:

The name India originated from a geographical aspect, the name India originates from the river Sindhu. Originally the word India did not exist the Aryans in 600 BCE to 300 BCE used to call the Indus River Sindhu River (Sindhu being a Sanskrit word). Then a Greek explorer named Scylax of Caryanda explored the river Indus and it gave birth to the word Indos. And with the passage of time, Indos became India. This name was also used for the civilization which was across the Sindhu/Indus River and the civilization we are talking about is the Harrapan Civilisation. Which was also called the Indus Valley Civilisation.

Origin of the word Bharat:

When we talk about the name Bharat it is not a geographical or a foreign term given to us, but quite the opposite to that it has been a part of our culture and history for a very long time. The first time ever that the term Bharat was used in the oldest Vedic Sanskrit text the Rigveda and it was written by Ved Veyas. The term Bharat is used as a reference to Bharata who was the king of the Bharata clan. King Bharata won the battle between 10 kings after which for the first time our country was united.

Another significant indication of Bharat being attached to our culture and history is the holy book “Mahabharat”, the book also talks about the Bharata clan and the battle of Mahabharat that took place in the northern part of our country. Apart from these references in the books, around 2100 years ago in Odisha in the Hathigumpha Caves, the word Bharatvarsh was carved. The term Bharatvarsh was used for the gigantic region of our country and not the whole country.

In the Vishnu Purana, there is a geographical description of Bharat. It says, “Uttaram yat samudrasya, Himadreschaiva dakshinam, varsham tad Bharatam nama Bharati yatra santatih”. It means that Bharatam, or Bharat is the country that lies to the north of the ocean and to the south of the snowy mountains.[1]

Constitutional say on the term Bharat:

The adaption of the term Bharat for our country is not something new and alien introduced by the government, rather it also has been a part of our constitution Article 1 states:

“India, that is Bharat, shall be a Union of States.
The States and the territories thereof shall be as specified in the First Schedule
⁠The territory of India shall comprise —
(a) the territories of the States;
(b) the Union territories specified[2]

So the government’s initiative to use the term Bharat instead of India is not unconstitutional or illegal. Apart from just being lawful the term Bharat connects us to the roots of our country and directs us in the direction of understanding the origin and history of our country. The same history has been manipulated and erased in the Mughal and the Colonial period.

Rashtrapati Bhawan extended invites for a G-20 luncheon on September 9 on behalf of the “President of Bharat,” which gave rise to the India-Bharat dispute last month. The usage of the word Bharat in English has been condemned by opposition political parties since it has been a long-standing desire of the RSS.

The administration of Prime Minister Narendra Modi has often said that they lean towards using the term “Bharat.” In 2022, PM Modi made a number of promises to the people during his Independence Day address, one of which was to eradicate all signs of slavery. The adoption of Bharat as the new name might be seen as a symbolic move in the direction of valuing the cultural character of our country.

Conclusion:

Adopting the name Bharat instead of India for our country is a well-thought-out step taken in the positive direction, this will help the minds of the nation move past the colonial norms and practices. For the new generation, this step is crucial as it will connect them with our original roots and will help in making them keen on our rich culture and history.

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Written by: Sushant Kumar Sharma

 

[1] Srishti Singh Sisodia, Explained | Origin of the name ‘Bharat’ – India’s past, present and future, WION (Sep 6,2023,4:30PM), https://www.wionews.com/india-news/explained-origin-of-bharat-indias-past-present-and-future-632906

[2] INDIA CONST. art. 1, cl. 1.

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