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AUGUST CURRENT LEGAL KNOWLEDGE

International News
1. The Supreme Court of Pakistan has directed the Government and its agencies to desist from using words like
"disabled," "physically handicapped" and "mentally retarded" for persons with different abilities.

The judgment, rendered by a 3-Judge Bench of Pakistan's Top Court, makes a paradigm shift in the approach
adopted by the society towards specially-abled persons. It holds that usage of such words offends human
dignity of persons with different abilities, and the same must be stopped forthwith.

2. The Constitutional Court of South Africa recently reinterpreted the country's Citizenship Amendment Act of
2010, which had drastically changed the definition of 'citizenship by descent', by holding that persons born in
other countries, before or after the commencement of the Amendment Act, are entitled to South African
citizenship as long as one of their parents is South African.

The Gauteng Division of the High Court of South Africa had declared section 2(1)(a) and section 2(1)(b) of the
South African Citizenship Act of 1995, as amended by the South African Citizenship Amendment Act 17 of 2010.
Though it did not confirm the High Court declaration, it reinterpreted the Act and saved many persons from the
risk of arbitrary and overnight deprival of Citizenship.

Justice Khampepe authored the unanimous judgment for the nine judge Constitution bench.

The 2010 Amendment drastically changed the definition of Citizenship by Descent. The applicants, who
challenged these provisions are having one of their parents as a South African citizen at the time of their birth
(they were born before 2010 amendment came into force). They contended that by not including a provision
which retains the citizenship of those who acquired citizenship by descent in terms of 1995 Act, the section 2(1)
of the amended Citizenship Act has the effect of stripping those individuals of their South African citizenship.

Pre-Amendment Citizenship by Descent Law

Before its amendment in 2010, a person could acquire citizenship by descent in the following ways: First, if they
were a citizen by descent immediately prior to the commencement of the 1995 Citizenship Act, they would
remain so. Secondly, a person could acquire citizenship by descent if they were born outside of South Africa
and one of their parents was a South African citizen and their birth was registered. Thirdly, if a person was born
outside of South Africa and one of their parents had resumed South African citizenship and they had entered
South Africa to reside in the country permanently, that person would be a citizen by descent. Fourthly, a person
would acquire citizenship by descent if they were born outside of South Africa and they had subsequently been
adopted by a South African citizen in terms of the Child Care Act and their birth was registered.

Changes brought by 2010 Amendment

By the amendment Act of 2010, Section 3, which dealt with citizenship by descent was altered and the meaning
of "citizen by descent" was modified to apply to only those who have been adopted in terms of the Children's
Act by a South African citizen.

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 Section 2, which dealt with 'citizen by birth' was also amended to read (1) Any person— (a) who immediately
prior to the date of commencement of the South African Citizenship Amendment Act, 2010, was a South African
citizen by birth; or (b) who is born in or outside the Republic, one of his or her parents, at the time of his or her
birth, being a South African citizen, shall be a South African citizen by birth.

Interpretation of "Any Person Who Is Born"

The issue considered by the Court was whether the words "is born" can be interpreted to apply to those born
before the commencement of the 2010 Amendment?

The court observed that the other narrow, prospective-only interpretation strips citizenship rights from a great
number of people 'in the most unfair and unjustified manner'. "It is that interpretation which would render the
operation of the 2010 Amendment retrospective by wiping out citizenship that existed under the previous Acts
without replacing it with another form of citizenship, and by taking away citizenship rights without retaining those
previously-acquired rights.", it added.

Interpreting the Amendment Act thus, the Constitutional Court refused to confirm the High Court's order declaring
the provisions constitutionally invalid.

Courts in India
1. The Supreme Court refused to close the pending cases against two Italian Marines, without hearing the
families of the victims.

The Court asked the Centre to implead the victims in the case and said that they should be paid adequate
compensation. "We want you to pay not reasonable but "adequate" compensation. You will bring the cheque
here and submit it before this Court. Mr. Mehta, join the victims' families as parties here", CJI SA Bobde told
Solicitor General Tushar Mehta.

The Union of India had filed an Application, seeking the closure of all the pending cases against two Italian
Marines who had been accused of killing two fishermen from Kerala by mistaking their fishing boat for a pirate
boat and opening fire at it. The application was filed in the light of the award passed by the Permanent Court of
Arbitration last month in the dispute between India and Italy over the firing incident which took place near the
shores of Kerala in February 2012.

On July 2, the Permanent Court of Arbitration rendered its judgement, unanimously holding that India is entitled
to claim compensation from Italy. It also held by a 3:2 majority that the Marines are entitled to immunity in relation
to the acts that they committed during the incident and that India is precluded from exercising its jurisdiction over
the Marines.

In light of the above, the Union of India filed the Application for the closure of the case. The CJI, however, put a
stop to the arguments and refused to proceed without the presence of the victims' families.

2. The Supreme Court has decided to refer to Constitution Bench the petitions challenging the validity of
Constitution 103rd Amendment which introduced provision for reservation to Economically Weaker Sections
(EWS).

Economic reservation in jobs and education was proposed to be provided by inserting clause(6) in Articles 15
and 16 of the Constitution through the amendment passed by the Parliament in January 2019. The newly
inserted Article 15(6) enables State to make special provisions for advancement of any economically weaker
section of citizens, including reservations in educational institutions. It states that such reservation can be made
in any educational institution, including private institutions, whether aided or unaided, except minority
educational institutions covered under Article 30(1). It further states that the upper limit of the reservation will be
ten percent, which will be in addition to the existing reservations.

After the amendment was notified by the President, a batch of petitions were filed in the SC challenging the
constitutional validity of economic reservation. "Can the reservation exceed 50 per cent? Can there be
reservation exclusively for the economically backward? These are points which raise substantial questions of
law," Justice Bobde had remarked while leading the bench.

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 One of the primary contentions of the petitioners is that the additional 10% EWS quota surpasses the court-
imposed upper-limit of 50% on reservations, 15%, 7.5% and 27% already standing allotted to the SC, ST and
the OBC respectively.

Submission from the Government - The Tamil Nadu Assembly had passed the Backward Classes, Scheduled
Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and Appointments or Posts in
the Services under the State) Act, 1993 maintaining its reservation at 69%. The statute was subsequently
added to the Ninth Schedule of the Constitution to exclude judicial review of it. "The concept of reservation
based on the economic status has already been approved by this court in Society of Unaided Private Schools
of Rajasthan v. UO", submitted the Attorney General. "These rulings have already determined the question of
Article 14. A larger bench is not required to be constituted for there is no other constitutional issue to
decide...Articles 15(4) and 16(4) are not getting affected. But this is a welfare State- Article 46 obligates the
State to provide for the poor", he advanced.

The AG buttressed this submission with the recent decision of the Bombay High Court upholding the quota to
the "socially and educationally backward" Maratha community, where the High Court observed that "in
exceptional circumstances, the 50 per cent limit can be exceeded if it is based on quantifiable data"

Senior Counsel Rajeev Dhawan, for petitioner and Congress leader Tehseen Poonawalla, countered that the
TN and Maharashtra cases involved amendments in the law which pertained to quota for the SC, ST and the
OBC, and did not create a new class. Further, he asked if the 103rd amendment seeks to accord a fresh
definition to "backward class", stating that the Parliament would not have the power to do so.

3. Disclosure Of COVID Patients' Identities Must Pass 'Triple Test' Of Privacy Judgment; Identity Of Deceased
COVID Warriors May Be Disclosed To Honor Them

The High Court of Orissa has disposed of a PIL filed by Advocate Ananga Kumar Otta against disclosure of
personal details/ identities of Covid patients.

The bench of Chief Justice Mohammad Rafiq and Justice S. Pujahari has held that the State has to uphold the
right to privacy of the patients by preserving their identities. However, it has also stressed that right to privacy,
like any other fundamental right, is not absolute and it may be diluted in exceptional circumstances.

On this note, the High Court has cautioned the authorities to ensure that in case they reveal the identity of a
Covid patient/ suspect, the same is done in accordance with the law, i.e., it satisfies the 'Triple test' as laid down
by the Supreme Court in the right to privacy judgment (KS Puttaswamy & Anr. v. Union of India & Ors.)

The High Court decided to close the PIL with "hope and trust" that the State will take all necessary steps to mask
the patients' identities.

Disclosure of identities in public interest - The Court was also informed that the State regulations confer
discretion on the authorities to disclose the identity of such persons in the interest of public health and safety,
with the approval of the State Government.

Unauthorized disclosures by Media - So far as the unauthorized disclosure of the identity of Covid-19 patients
in print and Electronic media is concerned, the Court highlighted that it was causing more harm to public health.
The Court added that the aforesaid cannot be a ground to gag the freedom of the Press. However, it expressed
hope that the Press shall behave in a "more responsible manner" with regard to disclosure of identity and it shall
not disclose the identity of such persons unauthorizedly.

Disclosure of identities of deceased Covid Warriors

Lastly, the Court addressed the issue of disclosure of identity of Covid Warriors, who succumb to the infection
on line of duty. The same is to be done with the prior consent of legal representatives of such deceased Covid
Warrior competent to consent, the Court observed. It asserted that such disclosure, in their honor, is a "message"
to the Covid Warriors that the State is alive to their sacrifice and it shall adequately take care of their dependants
in the event they lay their lives in service of the Nation.

4. Taking note of repeated petitions seeking directions for termination of pregnancy before it, the Punjab and
Haryana High Court has decided to examine the constitutional validity of the provision of Medical Termination
and Pregnancy Act, 1971 which prohibits the termination of pregnancy after a period of 20 weeks.
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5. The failure to lodge an FIR complaining of dowry and harassment before the death of the victim is
inconsequential, observed the Supreme Court while setting aside the Allahabad High Court order that granted
bail to a man who was convicted in a dowry death case.

Sandeep Singh Hora was convicted by the Trial Court for offences under Sections 304B, 498A and 406 of the
Indian Penal Code (IPC) and Sections 3 and 4 of the Dowry Prohibition Act, 1961. He was prosecuted under
these provisions as his wife died in circumstances which were not natural, within about 8½ months of their
marriage. In appeal before the High Court, he contended that the (i) No FIR in relation to demand for dowry or
harassment had been filed before the death of the victim; (ii) he had taken Rs. 2,50,000/- as loan from the
brother of the victim and not as dowry and (iii) that the deceased had committed suicide which was evident from
the post mortem report. Taking note of these submissions, the High Court passed a short, cryptic, non-speaking
order granting bail to him by staying execution of sentence.

While allowing the appeal filed by the father of the deceased, the bench comprising Justices Arun Mishra and
Indira Banerjee observed thus:

From the evidence of the Prosecution witnesses, it transpires that the Appellant had spent money beyond his
financial capacity, at the wedding of the victim and had even gifted an I-10 car. The hapless parents were hoping
against hope that there would be an amicable settlement. Even as late as on 17.6.2010 the brother of the victim
paid Rs.2,50,000/- to the Respondent No.2. The failure to lodge an FIR complaining of dowry and harassment
before the death of the victim, is in our considered view, inconsequential. The parents and other family members
of the victim obviously would not want to precipitate a complete breakdown of the marriage by lodging an FIR
against the Respondent No.2 and his parents, while the victim was alive.

Also Read - Chhattisgarh HC Stays Proceedings For Allotment Of Govt Land To Congress Party [Read Order]

The court also observed that, in considering an application for suspension of sentence, the Appellate Court is
only to examine if there is such patent infirmity in the order of conviction that renders the order of conviction
prima facie erroneous.

As the discretion under Section 389(1) is to be exercised judicially, the Appellate Court is obliged to consider
whether any cogent ground has been disclosed, giving rise to substantial doubts about the validity of the
conviction and whether there is likelihood of unreasonable delay in disposal of the appeal

While allowing the appeal the bench observed that the legislative intent of incorporating Section 304B was to
curb the menace of dowry death with a firm hand and therefore while dealing with these cases under Section
304B, this legislative intent has to be kept in mind.

6. The Ministry of Health and Family Welfare filed an affidavit in the Supreme Court stating that Quarantine Period
of doctors and health workers needs to be treated as "on duty" and not "on leave".

On July 31, the Centre had informed Supreme Court that Delhi, Punjab, Tripura, Karnataka & Maharashtra -
have not made timely payment of salaries to healthcare workers despite the Centre's Notification under National
Disaster Management Act which lays down strict penal action for non-payment.

In light of this, the Ministry of Health & Family welfare also put on record an affidavit stating that after consulting
with the Department of Personnel & Training, it has decided that the quarantine period of doctors and healthcare
workers needs to be treated as on duty.

On June 17, Supreme Court had directed the Centre to pass appropriate directions under the Disaster
Management Act to the Chief Secretaries of all States/Union Territories to ensure that directions for payment of
salaries to doctors and health workers are complied with. It was listed today to take stock of progress made by
states in this regard.

7. The National Testing Agency has filed a counter affidavit before the Supreme Court, intimating that it is not
possible to have overseas examination centres for NEET 2020 because the examination is conducted in "paper
book format".

The submission has come in response to the plea filed by parents of students who are applicants for the NEET
UG 2020 entrance examination and reside in Doha, Qatar. They have challenged the Kerala High Court
judgment which dismissed their plea for assigning test centers for NEET in Gulf countries.

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8. The Supreme Court held Advocate Prashant Bhushan guilty of contempt of court in the suo moto contempt case
taken against him over two of his tweets about the Chief Justice of India and the Supreme Court. Justice B R
Gavai, reading out the judgment, observed that Bhushan committed "serious contempt of the Court".
9. Attorney General KK Venugopal informed the Supreme Court Bench hearing the contempt petition in the
restoration of 4G internet in Jammu and Kashmir matter that the Special Committee was of the considered view
that the situation in Jammu & Kashmir is still not conducive to restore internet Services of 4G in Jammu &
Kashmir. However, a phased restoration on a trial basis would take place 15th August onwards.

AG submitted that one district in Jammu and one in Kashmir could get 4G internet on trial basis after August 15.
Further, the Committee would overlook the restoration in certain areas over a period of 7 days, and there would
be review of the situation after two months.

In light of the above submission, the AG contended that the
averments of the Petitioners on the basis of the Anuradha Bhasin judgment was false as the reviews had been
conducted periodically in tune with the law and there was no question of contempt. 



10. Supreme Court has held that daughters have coparcenary rights even if their father was not alive when hindu
succession (amendment) act, 2005 came into force. In a significant judgment, the Supreme Court has held that,
a daughter will have a share after Hindu Succession (Amendment) Act, 2005, irrespective of whether her father
was alive or not at the time of the amendment.

Justice Arun Mishra today pronounced the judgment in a batch of appeals that raised an important legal issue
whether the Hindu Succession (Amendment) Act, 2005, which gave equal right to daughters in ancestral
property, has a retrospective effect?

a. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of
coparcener on the daughter born before or after amendment in the same manner as son with same rights
and liabilities.
b. The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in
Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place
before 20th day of December, 2004.
c. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on
9.9.2005.
d. The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as
originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only
for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of
Class I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the
substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been
passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings
for final decree or in an appeal.
e. In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition
cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly
registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in
exceptional cases where plea of oral partition is supported by public documents and partition is finally
evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of
partition based on oral evidence alone cannot be accepted and to be rejected outrightly.
11. The Supreme Court has dismissed a petition which sought transfer of the funds from PM CARES to National
Disaster Relief Fund. The Court also held that there was no need for a fresh national disaster relief plan for
COVID-19, and that the minimum standards of relief as issued under the Disaster Management Act prior to
COVID-19 were enough.

The bench also clarified that the Centre will be free to transfer the funds to NDRF as it deems appropriate and
that individuals are at liberty to donate to NDRF. A bench comprising Justices Ashok Bhushan, R Subhash
Reddy and M R Shah was disposing of a PIL filed by Centre for Public Interest Litigation which sought directions
for evolving a new national plan under Section 11 of the Disaster Management Act to deal with COVID-19, and
also the transfer of funds from PM CARES to NDRF.

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 The bench formulated the following questions:

1. Whether Union of India is obliged to make a National Plan to prepare for COVID 19?
2. Whether UOI is obliged to lay down a minimum standard of relief under National Disaster Management Act?
3. Whether there is any prohibition to make contributions to PM CARES?
4. Whether all contributions should be credited to NDRF
5. Whether all PM CARES Funds to be directed to NDRF.

The bench answered the questions as follows:

a. The National Disaster Plan is sufficient for COVID 19 - there is no statutory prohibition for the Union of India
utilizing the NDRF for providing assistance in the fight of COVID-19 in accordance with the guidelines issued
for administration of NDRF; The minimum standards of relief as laid down prior to COVID 19 is enough to
deal with COVID-19
b. The Centre can utilise NDRF for providing assistance in the fight of COVID-19 pandemic by way of releasing
fund on the request of the States as per new guidelines.
c. Any contribution, grant of any individual or institution is not prohibited to be credited into the NDRF and it is
still open for any person or institution to make contribution to the NDRF in terms of Section 46(1)(b) of the
Act, 2005. The contribution by any person or by any institution in PM CARES Fund is voluntary and it is
open for any person or institution to make contribution to the PM CARES Fund.
d. The funds collected in the PM CARES Fund are entirely different funds which are funds of a public charitable
trust and there is no occasion for issuing any direction to transfer the said funds to the NDRF.
e. Not for the Court to sit in judgment over the financial decisions of the government
The plea further contends that the NDRF is not being utilized by the authorities, despite the looming health crisis,
and that the setting up of the PM CARES Fund is outside the scope of the DM Act. It further raises the issue of
lack of transparency with regard to the PM Cares Fund, stating that it is not subject to CAG Audits and has also
been proclaimed to be outside the purview of the RTI Act by not being under the definition of "public authority".

12. The Madras High Court has permitted individuals alone to observe Vinayaka Chathurthi by placing Vinayagar
idols before the house and temples and by finally immersing them in the water bodies. However, the court said
that there is a total bar to undertake the same activities by organisations.

13. Delhi High Court has allowed People for the Ethical Treatment of Animals (PETA) and Federation of Indian
Animal Protection Organisations (FIAPO) to participate in the survey conducted by the Animal Welfare Board of
India (AWBI) to identify the condition of animals who are kept in circuses.

The order has come in writ petitions moved by PETA India and FIAPO seeking a direction to be issued to the
Union of India, AWBI, Central Zoo Authority and registered circuses to ensure immediate prohibition on training
and exhibition of performing animals in circuses and mobile entertainment facilities.

In addition to this, the petition filed by FIAPO has also separately challenged the validity of Section 21-27 of the
Prevention of Cruelty to Animals Act to the extent that they permit exhibition and training of animals for circuses.

PETA argued that it should be allowed to enter circuses and provide food and medicines to animals in distress.
Registered circuses such as Great Bombay Circus and Jumbo Circus resisted the demand put forward by the
Petitioners by submitting that these organisations undermine the symbiotic relationship between the animal and
the caretaker, they enter premises with preconceived agenda and take away the animals. Animal Welfare Board,
on the other hand, submitted that it is the statutory duty of the Board to provide assistance to animals and the
Petitioners, which are private bodies, should not be asked to interfere with the same.

'We're not interested in this rat race as to who should help the animals', court responded. Therefore, the
Petitioners are allowed to participate in the survey and assist the animals in distress. The Respondent Circuses
have been asked to not to disrupt the assistance work carried out by the Petitioners.

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 In addition to this, notices have also been issued to the various Ministries of the Central Government as well as
to the AWBI to file counter affidavits on the issue of validity of Sections 21-27 of the Prevention of Cruelty to
Animals Act.

14. The Supreme Court has allowed the Shri Parshwatilak Shwetambar Murtipujak Jain Trust to keep Jain Temples
open during the Paryushan festival to perform prayers at temples of Dadar, Bycullar & Chembur, by following
the Standard Operating Procedure formulated by the authorities with respect to COVID19.

15. The Orissa High Court has allowed the petition of a 24-year-old woman to get back her same-sex partner who
was forcibly separated from her by the partner's (Rashmi) Mother and Uncle. The Bench of Justices S. K. Mishra
& Savitri Ratho was hearing the matter; however, the Justices went out to write separate but concurrent orders
allowing the woman to stay with her same-sex partner (Rashmi).

Background of the case - The petitioner in the present matter originally belonging to female gender had exercised
his rights of self-gender determination and preferred to be addressed as 'he/his'. Therefore, the court recognized
the petitioner's right to be treated like a male and referred him as he/him/his throughout the proceedings of the
case.

While referring to the judgment of the Supreme Court in the case of National Legal Services Authority vs. Union
of India and others, (2014) 5 SCC 438 and Anuj Garg vs. Hotel Association of India, (2008) 3 SCC 1 , Justice
Mishra concluded that it is evident that all humans have the universal right of enjoyment of human rights, the
right to equality and non-discrimination, the right to recognition before the law, right to life, the right to privacy
and right to treatment with humanity while in detention etc.

16. The Supreme Court has refused to grant permission to hold Muharram Procession amid the covid19 pandemic.

A bench of CJI SA Bobde, Justices AS Bopanna & V. Ramasubramaniun observed that granting general
directions to take out the procession across the country shall lead to chaos & a particular community may then
be targeted for spreading the virus.

The Petitioner had cited the examples of the top court allowing the Puri's Rath Yatra procession to be held under
stipulated standard operating procedures but CJI Bobde remarked that these are dissimilar cases as in the Puri
chariot procession there were identified points for access. Petitioner also went on to cite the recent indulgence
of the Supreme Court wherein it had allowed the permission to offer prayers in select Jain Temples for the Jain
Paryushan Temple in Dadar & Bycullar.

CJI clarified that they were all limited prayers, cannot pass general directions. Ganesh festival was not permitted
in Tamil Nadu. The Court further stated disallowed the request of the petitioner for holding procession in
Lucknow, stating that a large percentage of the Shia community resided there and orders may be passed in that
regard.

CJI also added that just recently, they had allowed people to offer prayers at the Prayushan Festival in a limited
capacity at temples of Dadar, Bycullar & Chembur but that was also because State of Maharashtra & the union
were before the bench as well.

17. The Supreme Court has rebuked the Central Government for not clarifying its stand on the issue of interests
payable on EMI loans during the covid19 induced moratorium period, set to expire on August 31. A bench of
Justices Ashok Bhushan, R. Subhash Reddy & MR Shah directed the Centre to file an affidavit, clearly stipulating
its take on the issue of interest payments within a week and listed the case for further consideration on
September 1. Senior Advocate Rajiv Dutta apprised the bench of the fact that the Union had still not filed its
affidavit and has been seeking adjournments after adjournments, even though it has been telling the Court that
it shall seek instructions from the Finance Ministry.

However, the bench did not pass such orders listed the matter on September 1. Earlier, the Supreme Court had
said there was "no merit in charging interest on interest" for deferred loan payment instalments during the
moratorium period announced in wake of the COVID-19 pandemic & that once moratorium is fixed, it should
serve the desired purposes and the government should consider interfering in the matter as it could not leave
everything to banks. The RBI had said that in order to ameliorate difficulties faced by borrowers in repaying
accumulated interest for the moratorium period, on May 23 it had announced that in respect of working capital
facilities, lending institutions may, at their discretion, convert the accumulated interest for the deferment period
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 up to August 31, 2020, into a funded interest term loan (FITL) which shall be repayable not later than March 31,
2021.

18. The Supreme Court has dismissed two pleas seeking for a direction to the Chief Election Commissioner for the
postponement of the impending Bihar Assembly Elections on account of the COVID-19 pandemic and the State
being ravaged due to floods. It observed that the plea was premature as the Election Commission of India had
yet to issue a notification announcing the declaration of the elections in the State.

The Petitioner argued before the Court that the Representation of People Act, 1951 allowed for elections to be
deferred due to extraordinary situations. He further submitted, "Election was not paramount; human life is
paramount. Even MLAs are dying and people are suffering." However, the Bench was not inclined to allow the
plea and informed the Counsel that such orders could not be passed, and that it was for the ECI to decide.

Justice Bhushan stated that the plea was "misconceived" and could not be allowed under Article 32 of the
Constitution as the election was yet to be declared, and therefore, the Petitioners could not cite the pandemic
as the reason to seek for the postponement of the elections.

19. A five-judge bench of the Supreme Court has held that the decision of a coordinate bench in E V Chinnaiah vs
State of Andhra Pradesh requires to be revisited and referred the matter to the Chief Justice for placing it before
an appropriate larger bench.

The bench expressed the view that once a State Government has the power to make reservation, it also has
the power to make sub-classifications and that such sub-classification will not amount to tinkering with the
reservation list.

The bench opined that 'EV Chinniah' did not correctly apply the decision of 'Indira Sawhney' and did not take
into account the amendment to Article 342A of the Constitution.

Background -The batch of appeals arise from a Punjab and Haryana High Court judgment which struck down
Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006
provides that fifty per cent of the vacancies of the quota reserved for Scheduled Castes in direct recruitment,
shall be offered to Balmikis and Mazhbi Sikhs, if available, as a first preference from amongst the Scheduled
Castes. While holding this provision as unconstitutional, the Punjab and Haryana High Court relied
on E.V.Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394, wherein it was held that all the castes in the
Presidential Order under Article 341(1) of the Constitution formed one class of homogeneous group and the
same could not be further sub divided. It was further held therein that any such legislation with reference to Entry
41 of List II or Entry 25 of List III of the Seventh Schedule to the Constitution would be violative of Article 14 of
the Constitution.

A three judge bench of the Supreme Court, taking note of the submission of the E.V. Chinnaiah is not in accord
with the 9-Judge Bench judgment in Indra Sawhney Vs. Union of India had referred the matter to the Constitution
Bench.

Earlier this year, the Constitution bench had heard the parties on the following issues:

1. Whether the provisions contained under Section 4(5) of The Punjab Scheduled Castes and Backward
Classes (Reservation in Services) Act, 2006 are constitutionally valid?
2. Whether the State had the legislative competence to enact the provisions contained under Section 4(5) of
the Act?
3. Whether the decision in E.V. Chinnaiah Vs. State of A. P. & Ors. reported in (2005) 1 SCC 394 is required
to be revisited?
One of the questions considered by the bench, also comprising Justices Indira Banerjee, MR Shah, Vineet Saran
and Aniruddha Bose, was whether sub-classification made or preferential treatment within the class of
Scheduled Castes, Scheduled Tribes and socially and educationally backward classes can be said to be an
exercise of inclusion or exclusion particularly when the other castes in the list of Scheduled Caste persons are
not deprived of the benefit of reservation in totality? The bench noted that, in Indra Sawhney, it was held that it
is permissible to make sub classification within socially and educationally backward classes. That discussion
would be applicable for Scheduled Castes and Scheduled Tribes as they admittedly fall under Article 16, it
added.

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 The court observed that sub-classification was made under Section 4(5) of the Punjab Act to ensure that the
benefit of the reservation percolate down to the deprived section and do not remain on paper and to provide
benefit to all and give them equal treatment. It is for the State Government to judge the equitable manner in
which reservation has to be distributed.

The sub-classification is to achieve the very purpose, as envisaged in the original classification itself and based
thereupon evolved the very concept of reservation.
The State Government is conferred with the power to provide reservation and to distribute it equitably. The State
Government is the best judge as to the disparities in different areas. In our opinion, it is for the State Government
to judge the equitable manner in which reservation has to be distributed. It can work out its methodology and
give the preferential treatment to a particular class more backward out of Scheduled Castes without depriving
others of benefit.

20. The Supreme Court on Friday disposed of the petitions challenging the guidelines issued by the University
Grants Commission (UGC) for conducting final semester exams by September 30 with following orders:

a) The bench has refused the prayer to quash the UGC guidelines to hold the exams.
b) The directions of State Disaster Management Authority for canceling exams in that particular State will
prevail over the UGC directions.
c) However, the direction of the State Disaster Management Authority to pass the students on the basis of
previous performance is beyond the scope of the Disaster Management Act.
d) States/UTs cannot promote final year students without examination as ordered by UGC. States/Union
Territories given liberty to approach the UGC to seek postponement of the exams in the light of COVID19
pandemic situation.

Disaster Management Act vs UGC Act- This was in the context of the State of Maharashtra acting on the decision
of the State Disaster Management Authority to direct the cancellation of final term exams. Hence, an issue arose
in the case as to whose directions will prevail - whether that of the SDMA or the UGC. The UGC maintained that
in matters related to higher education, it remains the final word and the SDMA cannot interfere in that domain.
On the other hand, the State of Maharashtra submitted that in the backdrop of COVID-19 pandemic, which has
been notified as a 'disaster' within the meaning of the DMA, the State Disaster Management Authority posseses
vast powers to take appropriate decisions to deal with the situation to protect the lives of people.

State Autonomy - Another crucial issue in the case was whether State Governments possess autonomy in the
matter. The Governments of the National Capital Territoriy of Delhi, West Bengal, Odisha, Maharashtra etc,
have issued directions to cancel final term exams. Therefore, the question was whether UGC can override the
State Governments in that regard. It was argued by the State Governments that the UGC has only the power to
lay down standards or education and cannot issue peremptory directions to universities. It was further argued
that the UGC can only lay down guidelines, that too after consluting the Universities as per Section 12 of the
UGC Act. The States contended that the UGC took the decision without consulting them and without taking
account of the local situations.

Other News
1. Ten arbitration and mediation centers from Asia Pacific countries came together to launch a one of its kind Asia
Pacific Centre for Arbitration & Mediation (APCAM) today. The e-inauguration was held at 4 PM on Thursday,
August 6 with various legal luminaries gracing the occasion. Justice Rohinton F. Nariman inaugurated the
launch. He began by welcoming dignitaries from Malaysia, Thailand, Nepal, Indonesia, Australia, Honk Kong,
New Guinea & Taiwan to the "historic occasion"
2. In order to ensure ease of doing business in India and to foster an investor friendly climate in the country, the
Legal Metrology Division of the Department of Consumer Affairs has invited comments on the proposal to
decriminalize certain provisions of the Legal Metrology Act, 2009. The Central Government proposes to
decriminalize 'minor offences' under the Act and to substitute criminal liability with stiff compoundable monetary
penalties of a civil nature that can act as "adequate deterrent" without compromising public interest.
3. Justice Anand Pathak of the Gwalior Bench of the Madhya Pradesh High Court has set a new trend of directing
the Bail applicants to install Water Harvesting System or Water Recharge System in his/her lodge/house in
which he/she is residing. In as many as 32 bail orders passed between July 9 and August 6, the single–Judge
directed the accused persons to "install Water Harvesting System or Water Recharge System in his/her
lodge/house in which he/she is residing, within one/two/three month from the date of the order, if he/she has not
installed the system already." Additionally, in some of these bail orders, a direction to plant saplings along with
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 tree guard also finds a place. It may be noted that as reported by us earlier, the Madhya Pradesh High Court
has been directing the accused persons to plant saplings along with tree guard, as one of the conditions for bail.
Other interesting Bail Conditions
 Stop Using Social Media
 Register as COVID Warrior
 Render Voluntary Service
 Installation Of 'Non-Chinese' LED TV At A Local District Hospital
 Donate Sanitizer and Masks
 Render Physical And Financial Assistance As 'Shiksha Swayamsewak'
4. The Calcutta High Court has ruled that while civil courts in India do have the power to grant anti-arbitration
injunctions against a foreign-seated arbitration, however, this power is to be used sparingly and with abundant
caution.
5. The Madhya Pradesh State Legal Services Authority has successfully imparted 40 Hrs online Mediation
Training to Advocates based in outlying stations where single judge is posted.
In the training programme held from July 27, 2020 till August 7, 2020, twenty-four Advocates were trained on
topics like psychology of conflict, negotiation, bargaining, overcoming impasse and drafting of agreements.
6. A plea has been moved in the Supreme Court seeking issuance of directions to the Government to take action
against Foreigners illegally residing in India in violation of the foreigners Act, 1946 & against those residing in
India in violation of the cut of date of March 1, 1947 & 19 July 1948. Stating that due to the non-implementation
of Clause 154A of the Citizenship Act of 1955 by Government, the nation is facing "huge obstacles", the plea
contends that as millions of people live in the country illegally, it endangers the unity & sovereignty of the nation.
Calling the act of immigrants from Pakistan & Bangladesh entering Indian territory, a "mischievous" act carried
out with the intention of changing the demography of India, the petitioners contend that that immigrants are in a
position to influence the results of elections in a large number of constituencies, specifically in the North-east.
This, the petitioners claim is not a problem restricted to Assam & West Bengal only but the whole of India.
Additionally, the petitioners seek directions to the GOI by Top Court in exercise of the powers under Article 142
of the Constitution to lay out guidelines for "determining citizenship of a person before registering him as a voter
in the electoral roll for the election of House of the People and Legislative Assemblies of the States".

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