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41. Mohammad Salimullah v Union of India: ‘Right not to be deported’ is ancillary to a Fundamental Right available only to Indian Citizens

Hearing the plea to stop the deportation of Rohingya Muslims of Myanmar fleeing persecution in their homeland, the Supreme Court in its interim order rejected the petition to grant any relief.

The petition sought two orders; firstly, the release of detained refugees of the Rohingya community and other in form of a direction to the Union of India not to deport any Rohingya refugees that have been detained in various camps across the country. The petitioners argued that deportation by the government of India would violate the fundamental Right of Equality (Article 14) and Right to Life and Personal Liberty (Article 21) guaranteed by the Indian Constitution even to non-citizens.

The court however in its interim order observed that, "the right not to be deported, is ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e)", and that such a right is exclusive to citizens of India. The court stated that since India is not a signatory to the UN Convention on the Status of Refugees 1951 or its 1967 Protocol, the principle of Non-refoulement is optional.

42. Forum for People's Collective Efforts vs State of West Bengal: State can’t enact a law repugnant to parliamentary legislation on a similar subject matter

A Division Bench of the Supreme Court struck down West Bengal Housing Industry Regulation Act, 2017 (WB-HIRA) as unconstitutional.

West Bengal is the only state in India that has not yet implemented the Real Estate (Regulation and Development) Act, 2016 (RERA). In 2017 the state government introduced WB-HIRA to regulate the promoters and buyers in real-estate projects in the State. The act was then challenged through a petition filed in the Supreme Court under Article 32 of the constitution. The petition challenged the constitutional validity of the act by stating that a state legislature cannot enact parallel legislation to parliamentary legislation on the same subject matter. The petitioners contended that since WB-HIRA is a 'copy-paste replica' of the RERA-parliamentary legislation- barring a few cosmetic changes, it is repugnant and void under Article 254 of the Constitution which deals with Inconsistency between laws made by Parliament and laws made by the Legislatures of States.

The Court held that WB-HIRA is directly in conflict with a law enacted by Parliament as the provisions of WB-HIRA do not complement provisions of RERA, instead, WB-HIRA purports to occupy the same field as the Union legislation. Consequently, the Court struck down the state legislation.

43. Indian School, Jodhpur V. State of Rajasthan: Schools can’t profit from unutilized facilities

In the wake of the COVID-19 Pandemic, the Director, Secondary Education, Rajasthan, through multiple orders, directed all the private schools recognized by the Primary and Secondary Education Departments not to collect more than 70% of the tuition fees from the students.

The matter eventually landed in the Supreme Court of India. The Court noted that the Director, Secondary Education had no power to issue any direction in respect of fee structure under the Rajasthan Schools (Regulation of Fee) Act, 2016 or to reduce the same for the academic year 2020-21 in respect of private unaided schools. However, this doesn’t give the schools a license to be rigid and insensitive in the aftermath of the pandemic, held by the Court. The Court further noted that due to multiple lockdowns, the schools were not allowed to function offline for a long period during the academic year 2020-21 and due to this the school Management must have saved overheads and recurring costs on various items such as electricity, petrol/diesel, water charges, maintenance cost, stationery charges, etc. The Court held that schools can collect their annual fees under the 2016 act in six equal monthly instalments but with a 15% deduction for the underutilized facilities.

44. Madras Bar Association V. Union of India &Anr. : Supreme Court Strikes Down Provisions Fixing Term Of Members As 4 Years

On 4th April 2021, the President of India promulgated an ordinance titled “The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance”, on the recommendations of the Central Government, through its powers under Article 123 of the Constitution. The ordinance amended various statutes to replace the existing tribunals with High Courts to weed out inefficiency and corruption. The ordinance under section 12 and 13, limited the maximum age of appointment of a chairman or a member of any tribunal to 50 years, which means that no person over the age of 50 years is eligible for appointment to the tribunals for any position and it also fixed the members’ term at 4 years.

The petitioners challenged the fixation of the terms of the members of the tribunal to 4 years along with the maximum age limit of 50 years of it being violative of the previous judgments of the Supreme Court.

The Supreme Court in the judgment struck down certain provisions of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 as unconstitutional, which fixed the term of the members of the Tribunals to 4 years, by a 2:1 majority. The court accepted the arguments of the petitioner that the ordinance violates past judgments of this Court which fixed the terms of chairman and members as 5 years.

45. In Re: Alarming Newspaper Report Regarding KanwarYatra in the State Of U.P. : Religious Sentiments Subservient To Right To Health & Life.

Multiple petitions were filed in the Supreme Court of India against the commencement of KanwarYatra during the COVID-19 pandemic as the same would jeopardize the health of millions of people. The Supreme Court directed the U.P government to rethink its proposal to allow the Yatra in a ‘symbolic form’ only. The U.P government submitted that all the district KanwarSanghs had given their consent to not hold any Public Yatra in the year 2021, due to public health reasons. Similar submissions were also made during the last year. Hence, keeping the previous order in mind the Supreme Court dismissed the petition. The Court held that the health of the citizenry of India and their right to “life” are paramount. All other sentiments, albeit religious, are subservient to this most basic fundamental right under Article 21.

46. Lt. Col. Nitisha&Ors. V. Union of India and Ors. : Court strikes Down Army’s Gender Discriminatory Promotion Practices.

In the case of the Secretary, Ministry of Defence v. BabitaPuniya the Supreme Court held that women cannot be categorically denied Permanent Commission positions and the Armed Forces should not follow gender-discriminatory hiring/recruitment practices. Before the judgment, only Short Service Commissions positions could be taken up for 10 or 14 years by women officers, as opposed to Permanent Commissions (PC) that allow officers to work until the age of retirement. When the Army Constituted a ‘selection board’ for the implementation of the decision, it devised a criterion almost similar to the one applied to male SSC officers to female officers for granting PC along with discrepancies in fitness tests as well.

A two-judge bench headed by Justice Chandrachud held that recruitment criteria instituted by the Army for Permanent Commission constitute systematic discrimination against women officers. Substantive equality must be understood in the context of discrimination that occurs in a system that has an entrenched power hierarchy, held by the Court.

47. PLR Projects Ltd. v Mahanadi Coalfields Pvt. Ltd.: Under recruitment crises in High Courts

A three-judge bench headed by Justice SA Bobde took note of the existing 220 vacancies in the High Courts. Larger High Courts are working at 50% of the sanctioned strength and total vacancies among the High Courts across the country almost amount to 40%. As per the existing constitutional procedure, the Supreme Court collegium headed by the Chief Justice of India and consisting of his two senior-most colleagues has the conclusive power to recommend the appointments of the judges of the high court. The Court held that in the present there is no need to devise a new recruitment system as all the Chief Justices must timely make recommendations to fill up the vacant positions. The Supreme Court held that as per the norms the recommendations need to be made 6 months in advance so the Chief Justices must ensure that the recommendations should be made as soon as possible even when they are not made at one go. The Supreme Court also recommended additional timelines for the central government to approve the appointments. These timelines will work in conjunction with the Memorandum of Procedure finalized by the Supreme Court Collegium on 10th of March 2017, stated the Court.

48. Rajeev Suri V. DDA &Ors.: Clean Chit to Centre for Central Vista Project.

The petitioners in the present case alleged that the Centre violated Article 21 of the Constitution and the Doctrine of Public Trust by denying basic access to public/recreational spaces which are essential to life and liberty. However, the Court held that the public trust doctrine does not prohibit the government from utilizing the resource for the advancement of public interest itself, suggesting that the Central Vista Project is in the public interest. The Court further noted that the lack of information on the project is no ground to put a stoppage to the entire project. The Court also declined to interfere in the grant of environmental clearances.

Dissenting Justice Sanjeev Khanna noted that the project envisages extensive change to the landscape and complete redevelopment of the Central Vista. He found that the reading of the minutes of the CVC meeting on March 9, 2020, did not show a fair and independent application of mind.

On the issue of the judicial review, the court held that it won’t be justified on the part of the Court to exercise its power of judicial review on an issue where a decision has been already taken by the executive.

49. Engineering Analysis Centre of Excellence Private Limited v. The Commissioner of Income Tax: Payments made by India Companies to avail foreign software doesn’t amount to royalty and the same is taxable.

Settling an important case in the income tax, a three-judge bench headed by Justice R.F. Nariman held that the amount paid by Indian companies to avail foreign software doesn’t amount to royalty and the same is not taxable in India. The appellant in the case was an Indian Resident who imported software from Singapore and the appellant never deducted any tax on the payments made to the non-resident entity. However, the Department of Revenue under the Ministry of Finance (Revenue) stated that any such transaction between parties involves copyright for the right to use the software, which would result in payment of royalty, hence, tax shall be deductible at source under Section 195 of the Act.

The Court held that software companies are no longer required to pay any TDS (Tax Deducted at Source) when purchasing software from any international providers. The verdict would immensely help Indian software purchasers since foreign sellers may choose to drop prices to take advantage of the tax relief.

50. Satbir Singh V. State of Haryana: Section 304-B, IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand. The Supreme Court issued guidelines for trial in dowry death cases.

A woman set herself ablaze exactly one year after the marriage due to dowry pressure. The appellants were convicted for dowry death and the High Court of Punjab and Haryana also gave concurrence to the judgment. Interpreting the phrase ‘soon before her death she was subjected to cruelty under section 304-B of IPC, the Supreme Court held that ‘soon before’ can’t be construed to mean ‘immediately before’. The Court held that criminal statutes must be read strictly in most cases but in the circumstances where a rigid interpretation leads to absurdity, courts may, in suitable instances, rely on the real import of the words, taken in their ordinary context, to resolve difficulties as the factum of cruelty or harassment differs from case to case and no straitjacket formula can be devised to determine exactly when the victim was subjected to cruelty.


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