Weekly Legal Updates ( 3 December to 9 December 2023)

Weekly Legal Updates main objective is to update the legal knowledge of law students, lawyers, academicians and other professionals. If we do not update our legal knowledge regularly, our knowledge become redundant.

Supreme Court relief for journalist over Manipur posts

The Supreme Court on Monday stayed criminal proceedings against Fulbright fellow and independent journalist Makepeace Sitlhou against whom FIR was lodged for her tweets pertaining to the ethnic violence in Manipur. Reading out the posts for which she was booked, Senior Advocate Kapil Sibal told a bench of Chief Justice DY Chandrachud and Justices J B Pardiwala and Manoj Misra that there was nothing objectionable and challenged the proceedings against the journalist.

Convinced by the journalist's plea, the bench granted her protection and stayed the proceedings.

"Pending further orders, there shall be a stay in proceedings concerning the FIR against her," the bench said in its brief order.

(Courtesy:- The Times of India, 5 December 2023)

Supreme Court allows online classes for displaced Manipur students

The Supreme Court Monday said that students, who had approached it saying they had moved to other places on account of the violence in Manipur, can pursue their studies online or approach the Assam University and North Eastern Hill University for admission.

“The Solicitor General along with the Advocate General of Manipur submits that on August 16, 2023, the Registrar of the Manipur university addressed a communication to the Deputy Commissioner…It said that any of the students who desired to take online classes would be at liberty to do so. Apart from the above arrangement, it has also been indicated in the submissions of the respondents further state that the students may opt for any of two universities which are central universities – Assam University, Silchar, and North Eastern Hill University, Shillong…Details of the nodal officer (whom the students can contact for admission) shall be placed on website of Manipur University. Any student who desires to take admission at any of these two central universities, would be at liberty to contact the nodal officer of Manipur University who shall take necessary steps to facilitate the process of admission and relocation”.

But the CJI voiced concern on the quality of online education.

(Courtesy:- The Indian Express, 5 December 2023)

Assam's problem real but just can't junk provision in Citizenship Act: Supreme Court

While agreeing with the contention that infiltration from Bangladesh had created problems for the original inhabitants of Assam, the Supreme Court on Tuesday said that the risk of them being outnumbered could not be the basis for declaring unconstitutional Section 6A of the Citizenship Act to grant citizenship to Bangladeshi migrants who arrived before 1971. Responding to a petition that cited various studies and government reports to say that influx from Bangladesh has had a

devastating impact on social, cultural and political rights of the original inhabitants of Assam, a five-judge Constitution bench of Chief Justice D Y Chandrachud and Justices Surya Kant, M M Sundresh, J B Pardiwala and Manoj Misra, which is examining validity of the Section 6A, agreed that the state is undoubtedly facing problem. However, it said that validity of the law cannot be decided on the ground of subsequent infiltration in the state after 1971, which successive governments failed to stop.

The SC sought data on the beneficiaries of section 6A of the Citizenship Act in Assam, saying there was no material before it which could indicate that the effect of granting Indian citizenship to Bangladeshi immigrants between 1966 and 1971 was so great that it impacted the demographic and cultural identity of the border state. Section 6A was inserted in the Citizenship Act as a special provision to deal with the citizenship of people covered under the Assam Accord. Under Section 6A, foreigners who had entered Assam before January 1, 1966, and been “ordinarily resident” in the state, would have all the rights and obligations of Indian citizens. However, those who had entered the state between January 1, 1966, and March 25, 1971, would have the same rights and obligations

except that they would not be able to vote for 10 years.

Initiating the arguments on behalf of the petitioners, senior advocate Shyam Divan and lawyer Udayaditya Banerjee said, “Assam Accord is discriminatory as it differentiates Assamese people from the people living in other states… An identically placed person who had entered any other state other than in Assam is liable to be detected and deported… It has adversely affected the political, social, cultural and economic life of the state.”

“The changing demography of the state due to the influx of foreigners and a rapid growth in the migrant population leading to gradual marginalisation of the Assamese people in their own homeland are sufficient reasons for the court to interfere to protect the Assamese people of their fundamental rights. The burden is on the State to show that the impugned provision has not caused any adverse consequences on rights of citizens already living in the state of Assam prior to the enactment of the impugned provision,” he said.

Interjecting Divan’s submission, the bench said that the validity of the law could not be decided on the ground of prevailing situation in the state and petitioners had to link it to what happened before 1971. The bench said that the decision was also taken on humanitarian grounds as India played an important role in the liberation of Bangladesh. “We are not looking at that today. We are looking at a period which is frozen in time. We cannot adjudicate validity of Section 6A on the basis of what happened after development. If there has been growth in infiltration thereafter then, can that be a ground to examine the validity,” the CJI observed.

(Courtesy:- The Times of India, 6 December 2023)

SC: Can’t blame doctors when parents are lax

The court refused to interfere with a clean chit given to a pediatrician in a two-decade old consumer case.

Doctors cannot be blamed when parents remain negligent about their children’s health conditions for an inordinate period, the Supreme Court observed on Tuesday, as it refused to interfere with a clean chit given to a pediatrician in a two-decade old consumer case.

A bench of justices BV Nagarathna and Ujjal Bhuyan noted that the parents had taken the two-year-old child to the pediatrician in Kanpur in January 2002 after the toddler had persistent fever for the previous 45 days. The child was finally diagnosed with meningitis that damaged his eyesight.

“You waited for 45 days to take such a small child to a doctor, and you claim the doctor was negligent? Why did you not take the child after a week or so? We are saying it that if anyone is negligent here, it is you – the parents,” the bench told advocate Namrata Chandorkar, who was appearing for the parents of the child, who is now 23-year-old.

The lawyer replied that the doctor was aware of the medical history of the patient, complaining that valuable time was lost by the doctor in treating the child with antibiotics and antimalarial drugs. Chandorkar added that the doctor failed to advise suitable pathological tests for diagnosing the serious disease, besides first treating the child for malaria.

But the bench retorted: “How can you solely blame the doctor after letting the child have fever for 45 days? The infection must have set in by the time you took him to the doctor. This is not a case where you can blame the doctor for being negligent.”

With the writing on the wall, the lawyer requested the bench to restore the 2013 order of the Kanpur district consumer forum that asked the doctor to pay ₹2 lakh as damages.

But the bench remained unconvinced. “Restoring the order of the consumer forum would mean restoring the charge of medical negligence against the doctor. No doctor wants such a stigma,” said the court, refusing to interfere with the decision of the national consumer commission in March.

The commission in its order held that medical negligence could not be attributed to the doctor since the prescriptions and other reports brought on record show that the patient was investigated, diagnosed properly and, at the appropriate time, referred to a specialist.

“To start with, for fever, the doctor usually initially prescribes antibiotics and antipyretics. No reasonable doctor will suspect it as meningitis directly unless the patient shows clinical signs of meningitis. Therefore, it does not constitute medical negligence,” the commission’s order in March stated.

(Courtesy:- Hindustan Times, 6 December 2023)

Supreme Court's 'don't preach' rap over Calcutta HC's 'sexual urge' advice to girls

The Supreme Court on Friday described Calcutta High Court's recent observations advising young girls to "control sexual urge", as "objectionable and unwarranted". Criticising the observations that were part of the high court's judgement in a sexual assault case, the apex court asked judges to refrain from expressing "personal views or preach".

A bench of Justices Abhay S Oka and Pankaj Mithal said the remarks violated the rights of adolescents under Article 21 of the Constitution.

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"Prima facie, we are of the view that the judges are not expected to express personal views or preach," the bench said, issuing a notice to the West Bengal government and other parties in the case.

The court has asked senior advocate Madhavi Divan to assist it in the case.

The Supreme Court had taken a suo moto cognizance of the Calcutta High Court's observations on October 18, 2023.

A division bench of the high court, while announcing an order in a POCSO Act case, had observed that it is normal for adolescents to seek the company of the opposite sex but it isn't "normal for them to engage in sex devoid of any commitment and dedication".

According to PTI, the bench had also said that "every female adolescent should control sexual urge as in the eyes of society she will be a loser when she gives in to enjoy sexual pleasure of hardly two minutes."

It also said the girls should protect their dignity and self-worth.

For male adolescents, it said, they should “respect the aforesaid duties of a young girl or woman and he should train his mind to respect a woman, her self-worth, her dignity and privacy, and right to autonomy of her body”.

The Calcutta High Court had made these observations while hearing a teenager's request against conviction in a rape case.

(Courtesy:- Hindustan Times, 8 December 2023)

Supreme Court notice to Lieutenant-Governor on plea for health scheme fund release

The Supreme Court on Friday issued notice to Delhi Lieutenant-Governor’s (L-G) Office and others on Delhi Government’s petition seeking release of funds for its ‘Farishtey Dilli Ke’ scheme aimed at providing free treatment to accident victims.

Besides the L-G office, a Bench led by Justice BR Gavai also asked the Delhi Government’s Directorate General of Health Services and others to respond to the petition.

“We don’t understand this… one wing of the government is fighting with another wing of the government,” the top court said after senior counsel Abhishek Singhvi submitted on behalf of the Delhi Government that 23,000 road accident victims had been given cashless treatment in private hospitals under the ‘Farishtey Dilli Ke’ scheme.

The ‘Farishtey Dilli Ke’ scheme encourages people to rescue road accident victims. Under the scheme, the government foots hospital bills of those who have met with accidents in the city.

The plea has sought immediate re-operationalisation of the scheme by clearing pending bills, releasing timely payments to private hospitals and initiating disciplinary action against officials responsible for deliberately orchestrating the “de-operationalisation” of the scheme.

The petition said deliberate sabotage of the ‘Farishtey Dilli Ke’ scheme has been caused by repeated inaction, mismanagement and lackadaisical attitude of such officials.

“Hospitals are now reluctant to accept accident victims and this scheme has practically become defunct for over a year since payments to the majority of the hospitals have not been made. This has had a catastrophic impact on the medical aid available to victims of road accidents, and lives are being lost on the streets for want of timely and effective treatment,” the government submitted.

(Courtesy:- The Tribune, 8 December 2023)