January 2024

Content
z Parliamentary Form of Government in India..........................................................................................1

z Cases and Commissions on Governor.....................................................................................................2

z Speaker under Constitution....................................................................................................................3

z Article 137 of the COI..............................................................................................................................4

z Idea of One Nation One Election............................................................................................................5

z Examining the Proposal for Simultaneous Elections in India..................................................................6

z Judicial Decisions on Religious Questions...............................................................................................7

z Judgment on Chief Secretary of NCT of Delhi.........................................................................................8

z Shahi Idgah Judgment.............................................................................................................................9

z Chandrababu Naidu’s Case.....................................................................................................................9

z Analysis of Bilkis Bano Judgement........................................................................................................11

z Remission in Bilkis Bano Judgment.......................................................................................................12

z Kerala Hand Chopping Case..................................................................................................................13

z Prohibition on Marriage within Sapinda Relationships.........................................................................14

z Adani-Hidenburg Case..........................................................................................................................16

z Judgement on South Africa’s Case Against Israel..................................................................................17

z India Maldives Bilateral Relations.........................................................................................................19

z Major Changes Under Bhartiya Nagarik Suraksha Sanhita, 2023..........................................................20

z Hit and Run Law....................................................................................................................................21

z Laws Relating to Organ Transplantation in India...................................................................................22

z Powers of Interception under Post Office Act, 2023.............................................................................23

z Goa Cess Act, 2000...............................................................................................................................24

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Parliamentary Form
of Government in India
Introduction
Recent disruptions in the Indian Parliament have
sparked a debate on whether the Parliamentary Form of
Government, adopted by the founding fathers of the
Indian Constitution, remains effective. The incidents
highlight concerns about the smooth functioning of the
Parliament and its ability to conduct legislative business
efficiently. Critics argue that the frequent disruptions
hinder the democratic process, questioning the appro-
priateness of the chosen governance model. This discourse
prompts a reevaluation of the parliamentary system’s
effectiveness in ensuring productive and orderly pro-
ceedings within the Indian political landscape.
What is the Historical Background of the
Parliamentary Form of Government in India?
z Adoption in Constitution:
Ø Parliamentary Form of government in India was
adopted from Britain.
Ø The choice of a parliamentary form of government
for India was a result of a thorough deliberation
process.
z Constitutional Assembly Debate (CAD):
Ø The Constituent Assembly witnessed debates on
various models, including the Presidential, Indian
orthodoxy, Swarajist, and Parliamentary systems.
Ø The parliamentary model won the argument by
emphasising the need for a decisive authority
representing the citizens and ensuring accountability
of the executive to the elected House.
z Opinions of Members of Constitutional Assembly
Debate (CAD):
Ø As mentioned in Volume VII of Constitutional
Assembly Debate’s (CAD) Official Report, Professor
K T Shah in the CAD which took place on 10th
December 1948 said that “The Parliamentary
government has a sort of link between the Execu-
tive, the Legislative and the Judiciary”.
Ø Shri K Hanumanthaiya in CAD said that “Parliamen-
tary system is suitable to this country and for very
good reasons that system seems to be better
adapted to conditions in India than Presidential
executive”.
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What is the Position of Parliamentary Form
of Government under Constitution of India?
z Parliamentary Form of Government:
Ø The Parliamentary form of government under the
Constitution of India, 1950 is an important aspect
of the country’s political structure, drawing ins-
piration from the British model while adapting to
the unique needs and diversity of the Indian popu-
lation.
z Article 74 and 75 of the Constitution:
Ø Enshrined in Part V of the Constitution, Articles 74
and 75 outline the provisions for the President, the
Council of Ministers, and the Parliament, collectively
shaping the parliamentary system in India.
Ø At the heart of the Indian Parliamentary System is
the President, who serves as the ceremonial head
of state.
Ø While the President has certain powers and duties
prescribed by the Constitution from Article 52 to
62 of the Constitution, real executive authority
rests with the Council of Ministers headed by the
Prime Minister.
z American Presidential System:
Ø Unlike the American presidential system, where
the head of state is also the head of government,
in the Indian parliamentary the head of state and
head of government are usually two separate
positions.
z Prime Minister:
Ø The Prime Minister is appointed by the President,
who, in practice, selects the leader of the majority
party in the Lok Sabha (the lower house of Parlia-
ment).
Ø This ensures that the executive reflects the will of
the people as expressed through their elected
representatives.
z Lok Sabha and Rajya Sabha:
Ø The real power lies in the Lok Sabha, where Mem-
bers of Parliament (MPs) are directly elected by
the people.
Ø The Lok Sabha, along with the Rajya Sabha (the
upper house), forms the Parliament of India.
Ø The Lok Sabha is the primary legislative body
responsible for the formation and sustenance of
the government.
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Ø The party or coalition with a majority in the Lok
Sabha is invited to form the government, and its
leader becomes the Prime Minister.
z Collective Responsibility:
Ø A distinctive feature of the Indian Parliamentary
System is the principle of collective responsibility.
Ø The Council of Ministers is collectively responsible
to the Lok Sabha, and it must enjoy the confidence
of the majority of its members.
Ø If the government loses a vote of confidence, it is
expected to resign, leading to the formation of a
new government or fresh elections.
What are the Challenges
Before Effective Opposition?
z The parliamentary system requires stable support for
its effectiveness but simultaneously demands constant
questioning and challenges to ensure fidelity to the
common good.
z The absence of an effective opposition was a concern
for the first Prime Minister of India Pt. Jawaharlal
Nehru, who acknowledged its importance even as he
grappled with its presence in the First Lok Sabha.
z Even though the Indian Constitution didn’t directly
talk about the competitive party system at first, it
turned out to be really important for having a balanced
mix of strong support and effective opposition in the
country.
Conclusion
The current state of the Indian Parliament reflects a
departure from the principles that shaped its foundation.
The decline in parliamentary norms, the reluctance to
address accountability, and the suspension of a large
number of Opposition members raise fundamental
questions about the commitment to democratic ideals
and the functioning of this essential institution in the
world’s most populous country.
Cases and Commissions on Governor
Introduction
The were several incidents where Governors of
opposition-ruled states were criticized. Recently, Kerala
Governor faced controversy when, during a visit to Calicut
University, he ordered the removal of posters critical of
him. Labelling Students’ Federation of India activists as
“criminals,” he accused the Chief Minister of backing them.
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Subsequently, he toured Kozhikode without prior notice,
raising concerns about Governors’ conduct in Opposition-
ruled States, prompting a need to assess the legal
implications of such actions.
Supreme Court on several occasions discussed the acts
by governors. Several Commission also commented on
the same.
What are the Major Cases
of Immoral Acts by Governors?
z Rameshwar Prasad v. Union of India (2006):
Ø SC held that in terms of Article 361 Governor enjoys
complete immunity.
Ø Governor is not answerable to any Court for
exercise and performance of powers and duties of
his office or for any act done or purporting to be
done by him in the exercise of those powers and
duties.
 However, such immunity does not take away
power of the Court to examine validity of the
action including on the ground of mala fides.
z NCT of Delhi v. Union of India (2018):
Ø A SC Constitution Bench underscored the impor-
tance of discerning the “moral principles of the
Constitution” through a concept of constitutional
culture.
Ø It highlighted that “constitutional morality imposes
obligations and responsibilities on individuals
holding constitutional positions and offices”.
z Kaushal Kishor v. State of Uttar Pradesh (2023):
Ø SC said that it is for the Parliament in its wisdom
to enact legislation or code to restrain, citizens in
general and public functionaries, in particular, from
making disparaging or vitriolic remarks against
fellow citizens, having regard to the strict para-
meters of Article 19(2) and bearing in mind the
freedom under Article 19(1) (a) of the Constitution
of India.
What are the Major
Commissions on Powers of the Governor?
z Sarkaria Commission (1988):
Ø Commission said that “some Governors have failed
to display the qualities of impartiality and sagacity
expected of them”.
Ø It further mentioned that “many Governors, look-
ing forward to further office under the Union or an
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active role in politics after their tenure came to
regard themselves as agents of the Union”.
z Puncchi Commission (2010):
Ø It reported that to be able to discharge the consti-
tutional obligations fairly and impartially, the
Governor should not be burdened with positions
and powers which are not envisaged by the Con-
stitution.
Conclusion
In light of these cases and commissions, it is evident
that the powers and conduct of Governors in opposition-
ruled states warrant continuous scrutiny. Striking the right
balance between constitutional immunity, moral princi-
ples, and impartiality is crucial to uphold the integrity of
the Governor’s office and maintain the trust of the public
in the democratic process.
Speaker under Constitution
Introduction
The Speaker of the Maharashtra Assembly had the
task of determining whether the faction led by Maharasthra
Chief Minister within the Shiv Sena, comprising Members
of the Legislative Assembly (MLA), had willingly
relinquished their party membership. The Speaker’s
decision hinged on whether the breakaway group, by
voting against the Shiv Sena’s whip, had incurred
disqualification under the Tenth Schedule of the
Constitution. The key factors included the subsequent
elevation of Eknath Shinde to Chief Minister, the majority
of Shiv Sena legislators aligning with the Shinde group,
and the original Shiv Sena becoming a minority in the
Assembly all deemed irrelevant to the disqualification
question under the Tenth Schedule.
What are the Articles Related to
Speaker in the Constitution of India?
z Article 178: The Speaker and Deputy Speaker of the
Legislative Assembly–
Ø Every Legislative Assembly of a State shall, as soon
as may be, choose two members of the Assembly
to be respectively Speaker and Deputy Speaker
thereof and, so often as the office of Speaker or
Deputy Speaker becomes vacant, the Assembly
shall choose another member to be Speaker or
Deputy Speaker, as the case may be.
z Article 179: Vacation and resignation of, and removal
from, the offices of Speaker and Deputy Speaker–
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Ø A member holding office as Speaker or Deputy
Speaker of an Assembly–
 shall vacate his office if he ceases to be a member
of the Assembly;
 may at any time by writing under his hand
addressed, if such member is the Speaker, to
the Deputy Speaker, and if such member is the
Deputy Speaker, to the Speaker, resign his office;
and
 may be removed from his office by a resolution
of the Assembly passed by a majority of all the
then members of the Assembly: Provided that
no resolution for the purpose of clause (c) shall
be moved unless at least fourteen days’ notice
has been given of the intention to move the
resolution: Provided further that, whenever the
Assembly is dissolved, the Speaker shall not
vacate his office until immediately before the
first meeting of the Assembly after the dis-
solution.
z Article 180: Power of the Deputy Speaker or other
person to perform the duties of the office of, or to
act as, Speaker–
Ø While the office of Speaker is vacant, the duties of
the office shall be performed by the Deputy
Speaker or, if the office of Deputy Speaker is also
vacant, by such member of the Assembly as the
Governor may appoint for the purpose.
Ø During the absence of the Speaker from any sitting
of the Assembly the Deputy Speaker or, if he is also
absent, such person as may be determined by the
rules of procedure of the Assembly, or, if no such
person is present, such other person as may be
determined by the Assembly, shall act as Speaker.
z Article 181: The Speaker or the Deputy Speaker not
to preside while a resolution for his removal from
office is under consideration–
Ø At any sitting of the Legislative Assembly, while
any resolution for the removal of the Speaker from
his office is under consideration, the Speaker, or
while any resolution for the removal of the Deputy
Speaker from his office is under consideration, the
Deputy Speaker, shall not, though he is present,
preside, and the provisions of clause (2) of article
180 shall apply in relation to every such sitting as
they apply in relation to a sitting from which the
Speaker or, as the case may be, the Deputy Spea-
ker, is absent.
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z Speaker of the House of People:
Ø Articles 93 to 97 cover provisions related to the
Speaker of the House of People.
What is the Tenth
Schedule in the Constitution?
The Tenth Schedule of the Constitution of India is
commonly known as the “Anti-Defection Law.” It was
added to the Constitution in 1985 through the 52nd
Amendment Act, also known as the Anti-Defection Law
Act. The main objective of the Tenth Schedule is to prevent
elected representatives from changing their party
allegiance after being elected to a legislative body.
Key provisions of the Tenth Schedule include:
z Definition of Defection:
Ø The Tenth Schedule defines defection as voluntarily
giving up the membership of a political party or
voting against the party’s official whip in the legis-
lature.
z Disqualification:
Ø Members of Parliament (MPs) or Members of
Legislative Assemblies (MLAs) can be disqualified
if they violate the anti-defection provisions.
z Decision by the Presiding Officer:
Ø The decision on disqualification is taken by the
Presiding Officer of the concerned legislative body
(Speaker in the case of Lok Sabha or State Legisla-
tive Assemblies, and Chairman in the case of Rajya
Sabha or State Legislative Councils).
z Exemption for Split:
Ø The law allows for a split in a political party under
certain conditions, and in such cases, the group
that does not defect will not face disqualification.
z Exceptions:
Ø The Tenth Schedule also provides certain excep-
tions, such as when a member votes or abstains
from voting according to the direction issued by
the party in a matter where the party has not issued
a whip.
Conclusion
The disqualification of members by the Speaker led to
debates regarding the Tenth Schedule and power of the
speaker under the Constitution.
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Article 137 of the COI
Introduction
On 24th January 2024, the Supreme Court will be
considering the curative petition filed by the Maharashtra
government, challenging the court’s decision to strike
down the Maratha quota.
What is the Background?
z On 5th May 2021, a five-judge Constitution Bench of
the Supreme Court had struck down the Maharashtra
State Reservation for Socially and Educationally
Backward Classes Act, 2018, which provided reser-
vation to the Maratha community for admission in
educational institutions and government jobs.
z A review petition filed by the state government was
also dismissed on 21St April 2023.
z Thereafter, the aforesaid curative petition has been
filed before the Supreme Court.
What is a Curative Petition?
z The concept of curative petition is contained in Article
137 of the Constitution of India, 1950 (COI). It deals
with the review of judgments or orders by the
Supreme Court. It states that–
Ø Subject to the provisions of any law made by
Parliament or any rules made under Article 145,
the Supreme Court shall have power to review any
judgment pronounced or order made by it.
z A curative petition is one which requests the apex
court to review its own decision after a review petition
has been dismissed.
Ø These petitions are heard by the top three judges
of the Supreme Court including the Chief Justice
of India and the judges who dismissed the review
petition.
z The Court considers such petitions only in rare
circumstances to prevent frivolous litigation.
z It is the last and final option available for redressal of
grievance is generally considered in-chamber unless
a prima facie case is made out for reconsideration of
the verdict.
z The concept of curative petition originated in the case
of Rupa Ashok Hurra v. Ashok Hurra and Anr. (2002).
Ø In this case, the question before the 5-Judge
Constitution Bench was whether an aggrieved
person is entitled to any relief against the final
judgment/order of the Supreme Court after the
dismissal of a review petition.
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Ø The Supreme Court recognized Curative Petition as
a final remedy to reconsider dismissed review
petitions and may reconsider its judgements in
exercise of its inherent powers.
What are Objectives of Curative Petition?
z The concept of curative petition was recognized to
rectify gross miscarriage of justice in the final judg-
ment of the Supreme Court which cannot be chal-
lenged again.
Ø In the case of Union of India v. Union Carbide
(2023), the Supreme Court narrowed the scope of
the curative jurisdiction and held that it can be
entertained when there is a gross miscarriage of
justice, fraud or suppression of material facts.
z It aims to minimize any abuse of the processes of law
and prevents misuse of justice.
What are the Conditions for Curative
Petition?
For the purpose of entertaining the curative petitions,
the Supreme Court has laid down the following specific
conditions:
z The petitioner must establish that the principles of
natural justice were violated, and he has been
adversely affected by the judgment.
z The petition shall state specifically that the grounds
mentioned had been taken in the review petition and
that it was dismissed by circulation.
z A curative petition must be first circulated to a bench
of the three senior-most judges of the Supreme Court
and the judges who had passed the concerned
judgment, if available.
z If the majority of the judges conclude that the matter
needs hearing, then it is listed before the same Bench.
z The Bench at any stage of the curative petition can
ask a senior counsel to assist it as amicus curiae (friend
of the court).
z A curative petition is usually decided by judges in the
chamber unless a specific request for an open-court
hearing is allowed.
z If the plea lacks merit, the court can impose exemplary
costs to the petitioner.
Conclusion
In the Indian legal system, a curative petition is a novel and Constitutional Implications?
idea and judicial innovation. It provides a way to be heard
and gives fair chances of representation in court. It pre-
Editorial Consolidation (January) 2024
vents any fallacy that would arise in the procedure
followed or pronouncing the verdict.
Idea of One Nation One Election
Introduction
In September 2023, the Union Government established
a ‘High Level Committee on One Nation, One Election’
led by former President Ramnath Kovind. The committee,
having convened thrice, is currently soliciting views from
political parties and the public. As this initiative holds the
potential to reshape the foundations of Indian democracy
and challenge its federal structure, it is crucial to scrutinise
the legal implications and concerns surrounding this
proposal.
What is the High-Level
Committee’s Potential Impact on Federalism?
z There are growing concerns that the committee may
recommend a common election schedule for the Lok
Sabha and State Legislative Assemblies, potentially
overlooking constitutional and legal issues.
z The timing of this initiative, coinciding with the lead-up
to the 2024 general elections, raises questions about
its objectives.
z Given the potential to reshape the democratic land-
scape, a swift examination of the legal issues is imper-
ative.
What is the Status of
Feasibility and Expenditure?
z Proponents argue that ‘One Nation, One Election’
would reduce the substantial costs associated with
separate elections for the Lok Sabha and State
Assemblies.
Ø However, opponents question the validity of this
reasoning, emphasizing that the cost of conducting
free and fair elections is a crucial investment in
democracy.
z Additionally, concerns about the Model Code of
Conduct causing ‘governance downtime’ are disputed,
with opponents asserting the necessity of maintaining
a level playing field during elections.
What are Legal Concerns
z The ruling in the S R Bommai v. Union of India (1994)
case underscored the autonomous constitutional
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status of states and their vital involvement in various
facets of public life.
z Introducing a common election process would neces-
sitate altering the constitutionally mandated tenure
of State Legislatures, potentially violating the princi-
ples laid out in the S R Bommai case.
z Any action altering the duration of a State Legislative
Assembly could be deemed anti-federal and uncon-
stitutional.
What are the Shortcomings
of the Committee Established?
z Examining the High-Level Committee’s consultation
process reveals a potential bias, as the information
platform is available only in English and Hindi,
neglecting the linguistic diversity of the country.
z This raises questions about inclusivity and equal
representation in the decision-making process,
emphasizing the need for a more inclusive approach
that accommodates all of India’s official languages.
How Independent is
the Election Commission?
z The independence of the Election Commission, a
constitutional body responsible for autonomous
decisions regarding elections, is a crucial aspect of a
functioning democracy.
z The Committee’s actions and the Election Commission’s
seemingly passive role in the process prompt concerns
about the integrity of the electoral system and the
need for an unbiased and transparent decision-making
process.
Conclusion
As the High-Level Committee on One Nation, One
Election continues its deliberations, it is imperative to
scrutinize the potential impact on India’s federalism. The
legal concerns, feasibility, and constitutional implications
demand careful consideration, with the Supreme Court
poised to play an important role in determining the fate
of this proposal and its implications for the country’s
democratic principles.
Examining the Proposal for
Simultaneous Elections in India
Introduction
In September 2023, a significant step was taken in Indian
politics with the constitution of a High-Level Committee
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Editorial Consolidation (January) 2024
(HLC) led by Ramnath Kovind, former President of India.
The HLC’s primary task was to explore the feasibility and
implications of holding simultaneous elections for the Lok
Sabha, State Legislative Assemblies, and local bodies across
all states. This move has sparked discussions and debates
across political spheres and civil society.
What is the Historical Context?
z The idea of simultaneous elections is not novel. During
the initial four general election cycles between 1952
and 1967, both Lok Sabha and State legislative
assembly elections were synchronized.
Ø However, due to subsequent premature dissolutions
and various state-specific circumstances, elections
have been held at different intervals.
z In 2019, only four states aligned their assembly elec-
tions with the Lok Sabha polls.
What is the Rationale in
Favour of Simultaneous Elections?
z Advocates of simultaneous elections cite multiple
benefits.
z Chief among these is cost reduction, improved gov-
ernance efficiency, administrative ease, and fostering
social cohesion.
Ø The financial burden of elections is substantial, not
only for the government but also for political
parties and candidates.
z By consolidating elections, significant savings could be
realized.
z Additionally, continuous election cycles often impede
policy formulation and implementation due to the
perpetual campaigning mode adopted by political
parties.
What are the Challenges and
Considerations of Simultaneous Elections?
z While the advantages of simultaneous elections are
evident, there are formidable challenges and consid-
erations to address.
z India’s federal structure emphasizes the diversity of
regional issues and the autonomy of state governments.
z Synchronizing elections might overshadow local con-
cerns with national agendas, potentially undermining
the essence of federalism.
z Furthermore, it necessitates constitutional amend-
ments to redefine the tenure of legislative bodies and
address issues of confidence and dissolution.
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What are Past
Recommendations and Past Efforts?
z Several reports, including those by the Law Commission
in 1999 and the Parliamentary Standing Committee
in 2015, have delved into the intricacies of simultaneous
elections.
z Recommendations have ranged from staggered cycles
for different tiers of elections to mechanisms for man-
aging no-confidence motions and premature dissolu-
tion scenarios.
z Drawing parallels with parliamentary democracies
like South Africa, Sweden, and Germany, where fixed
tenures are the norm, provides insightful perspec-
tives.
What are the Suggestions
to Reach a Middle Ground?
z In the midst of divergent opinions, finding a middle
ground becomes imperative.
z One proposal suggests conducting Lok Sabha elections
in one cycle and state assembly elections in another,
with intervals between the two.
z This compromise aims to realize the benefits of syn-
chronization while accommodating regional diversity
and democratic principles.
z Collaborative efforts among political parties are es-
sential for implementing such reforms gradually.
Conclusion
The discourse surrounding simultaneous elections in
India reflects the complexity of democratic governance in
a diverse nation. While the potential benefits are enticing,
navigating through constitutional, political, and logistical
challenges requires thoughtful deliberation and consensus-
building. As India charts its course forward, it must balance
the pursuit of efficiency with the preservation of
democratic ethos and federal values.
Judicial Decisions on Religious Questions
Introduction
Courts, being the temples of justice, have given several
decisions on the religious beliefs of the majority in
Parliament. All the decisions of the Court of Justice were
backed by law but still there is criticism of judiciary for
giving decisions homogenous to the religious belief of
Central Government.
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Editorial Consolidation (January) 2024
What are the Major Decisions of the
Supreme Court on Religion-Based Questions?
z Ahmedabad St. Xaviers College v. State of Gujarat,
(1974):
Ø The Supreme Court held that whole object of
conferring the right on the minorities under Article
30 (right of minorities to establish and administer
educational institutions) is to ensure that there will
be equality between the majority and the
minority.
 If the minorities do not have such special protec-
tion, they will be denied equality.
z Bijoe Emmanuel v. State of Kerala (1987):
Ø SC asserted that compelling every student to sing
the National Anthem, regardless of their beliefs,
constitutes a clear violation of Article 19(1)(a)
safeguarding the Right to Freedom of Speech and
Expression, as well as Article 25(1) granting the
Right to Free Conscience and the freedom to
profess, practice, and propagate their chosen
religion.
z Ismail Faruqui v. Union of India (1994):
Ø SC considered the contentions of essential religious
practices and held that namaz can be offered
anywhere.
Ø SC said that the Mosque is not an essential part of
the practice of the religion of Islam and namaz
(prayer) by Muslims can be offered anywhere, even
in open. Accordingly, its acquisition is not prohibited
by the provisions in the Constitution of India.
z Shafin Jahan v. Ashokan K.M. & Ors. (2018):
Ø This case is also known as Hadiya case where the
girl married with her partner without her parent’s
will. Both of them were from different religions.
Ø The SC court held that every person has right to
marry with partner of choice.
z Shayara Bano v. Union of India (2017):
Ø SC declared the practice of triple talaq unconsti-
tutional, discriminatory practice against women
and not an essential religious practice of religion.
z Md. Siddiqi Through LRs v. Mahant Suresh Das (2019):
Ø SC in this held in the favor of Hindu community in
the conflict related to Ram Janmabhoomi.
Ø The court said that Sunni Central Waqf Board could
not prove exclusive possession, while Hindus
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demonstrated possession in the outer courtyard
through uninterrupted worship.
z Committee of Management Anjuman Intezamia Ma-
sajid Varanasi vs. Smt. Rakhi Singh and others (2023):
Ø SC allowed the continuance of Archeological Survey
of Gyanvapi Mosque in Varanasi.
Way Forward
z Several cases involving religious questions are still
under consideration before the SC for example the
Hijab dispute of Kerala Students.
z Mathura Krishna Janmabhoomi Case which includes
religious dispute between Krishna Janmabhoomi and
Shahi Idgah is under view of a Mathura Court as well
as Allahabad High Court, which may be presented
before Supreme Court when matter will reach to a
conclusion.
Judgment on Chief
Secretary of NCT of Delhi
Introduction
The Supreme Court’s decision in November 2023 in the
case of Government of National Capital Territory of Delhi
v. Union of India (2023) to permit a six-month extension
to current Delhi’s Chief Secretary has raised concerns
about judicial self-abnegation. This case highlights a
departure from established precedents and previous
judicial wisdom. The decision in the case is getting consi-
dered as “writ in water”.
What is the Background
of Chief Secretary’s Extension?
z Allegations:
Ø The current Chief Secretary of NCT of Delhi is facing
serious allegations of corruption and favoritism,
prompting Delhi Chief Minister to seek his removal.
z Discussion of Governments:
Ø The Delhi Government had sought discussions with
the Centre on appointing a successor as the Chief
Secretary was due to retire on 30th November 2023.
z Petition Filed by Government of NCT of Delhi:
Ø The Government of NCT of Delhi filed the petition
before the SC on the ground of having reason to
believe that the Union of India will unilaterally
appoint or Union of India unilaterally extended
the tenure of Chief Secretary in the exercise of the
power under Sections 41 read with 45A(d) read
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Editorial Consolidation (January) 2024
with 45H(2) of the Government of NCT of Delhi Act,
1991 as amended by the Government of NCT of
Delhi (Amendment) Act, 2023.
z Prior Approval:
Ø The Government of NCT of Delhi contended third
proviso to Rule 16 clearly stipulates that an exten-
sion of service can be granted to a person holding
the post of Chief Secretary to a State Government
on the recommendations made by the concerned
State Government “with full justification and in
public interest” with the prior approval of the
Central Government.
Ø Hence, it was urged that the power of extension
can be exercised only on the recommendation of
the State Government which, in the present case,
must mean, the GNCTD.
z Union Government’s Request:
Ø The Solicitor General appraised the court that the
Union Government proposes to grant an extension
of six months to the incumbent Chief Secretary.
z Court’s Ruling:
Ø Three-judge bench of SC held that “Bearing in mind
the subsequent developments which have taken
place resulting in the enactment of the amendment
to the Government of NCT of Delhi Act, 1991, the
decision of the Union Government to extend the
services of the incumbent Chief Secretary for a
period of six months cannot be construed to be
violative of law.
How the Court Ignored the Precedent?
z Criticism:
Ø The Government of NCT of Delhi (Amendment) Act,
2023, challenged by the Delhi government, had not
been stayed by the courts, leading to a presumption
of constitutionality.
Ø The Act sought to negate portions of a previous
judgment of SC on same issue, asserting the elected
state government’s control over services in Delhi.
z Precedent:
Ø The Court ignored the precedent set in the E.P.
Royappa v. State of Tamil Nadu Bench (1974),
which emphasized the Chief Secretary’s role as a
position of great confidence.
Ø The Court fails to recognize that the 2023 amend-
ment did not override the application of the Royap-
pa case, exposing a flaw in its rationale.
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What is the
Government’s Point on Appointment?
z The Delhi government’s request for a collaborative
appointment process is misconstrued by the Court,
which erroneously grants the Lieutenant Governor
sole discretion.
z The Court is said to have failed to acknowledge the
Chief Secretary’s involvement in more than 100 sub-
jects within the competence of the Delhi government.
Conclusion
The SC’s decision to allow the unilateral extension of
Delhi’s Chief Secretary’s tenure not only deviates from
constitutional logic but also disregards its own precedent,
setting a concerning precedent for future cases related to
the delicate balance of power between the elected
government and bureaucracy.
Shahi Idgah Judgment
Introduction
The Supreme Court has recently stayed the order given
by the Allahabad High Court in the case of Committee of
Management Trust Shahi Masjid Idgah v. Bhagwan Shri-
kirshna Virajman & Ors. (2022). The Allahabad HC gave
directive in positive on application that sought the
appointment of a commissioner to inspect the Shahi Idgah
Mosque in Mathura. This decision of SC temporarily halts
a potential legal avenue aimed at altering the status of
the religious site.
What is the Current
Position of Shahi Idgah Matter?
z Filing of Petition:
Ø Two religions are claiming their religious interest
in the dispute land in Mathura, Uttar Pradesh into
which a mos.
Ø Several petitions were pending before Mathura
Court regarding this.
z Transfer of Cases:
Ø Those legal cases concerning the Mathura Mosque
were consolidated by the Allahabad HC, which
transferred them for unified resolution in the case
of Bhagwan Shrikrishna Virajman And 7 Others v.
U.P. Sunni Central Waqf Board And 3 Others
(2022).
Ø The bench of Justice Arvind Kumar Mishra-I held
that “Looking to the fact that as many as 10 suits
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Editorial Consolidation (January) 2024
are stated to be pending before the civil court and
also there 25 should be more suits that can be said
that can be said to be pending and issue can be
said to be seminal public importance affected the
masses beyond tribe and beyond communities
having not proceeded an inch further since their
institution on merits for past two to three years,
provides full justification for withdrawal of all the
suits touching upon the issue involved in the suit
from the civil court concerned to this Court under
Section 24(1)(b) of Code of Civil Procedure, 1908
(CPC)”.
z Appointment of a Commission:
Ø The appointment of a commission to inspect the
premises seems to be a strategic move aimed at
finding architectural features and artifacts with
Hindu origins, resembling a tactic used in the
Gyanvapi Mosque case in Varanasi.
z Previous Settlement:
Ø The Mathura dispute, previously settled through a
compromise in 1968 between the Sri Krishna
Janmasthan Seva Sansthan and the Shahi Idgah
Trust, is now under legal scrutiny.
Ø The compromise, implemented through a decree
in 1973, involved the Sansthan relinquishing a
portion of the land to the Idgah.
Ø Current legal challenges label this settlement as
‘fraudulent’ and seek the transfer of the entire land
to the deity.
What was the Contention of
Supreme Court on Shahi Idgah Mosque?
z The SC cited the lack of specific grounds for the ap-
pointment and referred to a recent precedent empha-
sizing that interim relief should not be granted if there
are doubts about the maintainability of the suit or if
legal barriers exist.
z Hence, the SC stayed the order of Allahabad HC.
z The SC said that the proceedings before the Allahabad
HC will continue. However, the commission will not
be executed till the next date of hearing.
Chandrababu Naidu’s Case
Introduction
Recently, the Supreme Court in the matter of Nara
Chandrababu Naidu v. State of Andhra Pradesh & Anr.
(2023), heard appellant Chandrababu Naidu, aggrieved
 www.drishtijudiciary.com
by the initiation of a criminal proceeding against him and
his detention in connection with the same by the respon-
dent State through its CID.
What was the Case on the Appellant?
z Misappropriation of Public Funds:
Ø The appellant is accused primarily of facilitating
the misappropriation of approximately Rs. 370
crores in public funds intended for the establishment
of six skill development clusters in Andhra Pradesh.
z Andhra Pradesh State Skill Development Corporation:
Ø The Andhra Pradesh State Skill Development
Corporation (APSSDC) was created through a
memorandum issued by the Higher Education
Department.
Ø APSSDC entered into an agreement with two
corporate entities, Siemens Industry Software India
Pvt. Ltd. (SIEMENS) and Design Tech India Pvt. Ltd.
(Design Tech).
z Project:
Ø Originally, the objective was to set up six clusters,
each comprising a Centre of Excellence and five
Technical Skill Development Institutions and Skill
Development Centres in Andhra Pradesh, with a
total project cost of Rs. 3281.05 crores.
Ø The government’s contribution was limited to 10%
of the cost (Rs. 55 crores), with SIEMENS and Design
Tech providing 90% grant-in-aid (Rs. 491.84 crores).
z State’s Allegation:
Ø The state alleged that the corporate entities’
required contribution, which was overlooked,
resulted in an outflow of Rs. 330 crores from the
state to Design Tech in the final agreement, as
indicated in the state’s counter-affidavit.
Ø The APSSDC had conducted a forensic audit in the
year 2020 and the audit found flaws and irregularities
in the systems and in utilisation of funds between
the financial years 2014-­2015 and 2018­-2019.
Ø As per the investigating authorities a sum of
Rs.370/­crores from the government funds of the
APSSDC has been siphoned off.
What was the Main
Argument of the Appellant?
z Non-compliance:
Ø The Appellant argued against non-compliance of
Section 17A of the Prevention of Corruption Act,
1988 (PC Act).
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Editorial Consolidation (January) 2024
Ø The Appellant was heard by a Special judge under
PC Act who remanded him into judicial custody.
Ø The accused said that Section 17A was introduced
to the 1988 Act with effect from 26th July 2018.
z Illegal Proceeding Before Special Judge:
Ø The appellant said that if a flaw is detected in im-
plicating the appellant under the 1988 Act, the
entire proceedings before the Special Judge would
collapse.
Ø This is because, in such a scenario, the Special
Judge would have exceeded jurisdiction under the
PC Act, rendering the remand order null and void.
z No Retrospective Application:
Ø The High Court ruled, among other things, that the
provisions in question cannot be applied to offen-
ces committed before 26th July 2018.
Ø It emphasized that Section 13 (1) (c) & (d) offences
were removed by the PC (Amendment) Act, 2018,
and Section 17A was introduced.
Ø The argument was made that protective measures
in the Amendment Act do not apply to offences
committed before the inclusion of such safeguards
in the statutory scheme, as per the state’s rep-
resentation.
Ø The High Court’s primary decision rested on the
non-retrospective application of Section 17A.
What is the Conclusion
Drawn by the Supreme Court?
z No Application on Prior Offences:
Ø The court said that Section 17A would be applicable
to the offences under the PC Act as amended by
the Amendment Act, 2018, and not to the offences
existing prior to the said amendment.
z Denial to Quash First Information Report (FIR) Against
Appellant:
Ø The court said that even otherwise, absence of an
approval as contemplated in Section 17A for con-
ducting enquiry, inquiry or investigation of the of-
fences alleged to have been committed by a public
servant in purported exercise of his official functions
or duties, would neither vitiate the proceedings
nor would be a ground to quash the proceedings
or the FIR registered against such public servant.
z Valid Remand by Special Judge:
Ø The court said that the Appellant having been
implicated for the other offences under Indian Penal
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Code, 1860 (IPC) also, the Special Court was
completely within its jurisdiction to pass the
remand order in view of the powers conferred upon
it under Section 4 and 5 of the PC Act.
Ø There was no jurisdictional error committed by the
Special Court in passing the impugned order of
remand.
Ø The impugned judgment and order passed by the
High Court also does not suffer from any illegality
or infirmity which would warrant interference of
this Court.
z Referred to Supreme Court:
Ø The court expressed opinions taking different views
on the interpretation of Section 17A of the PC Act,
1988 and also examined its applicability to the
appellant in the subject case.
Ø The court referred the matter to the Hon’ble the
Chief Justice of India.
Analysis of Bilkis Bano Judgement
Introduction
Supreme Court has recently given judgment in Bilkis
Yakub Rasool v. Union of India & Ors. (2022). The SC set
aside its judgment given on 13th May 2022 which gave the
power to the state government of Gujarat to decide the
premature release of the 11 life convicts convicted for the
Bilkis Bano rape case. The SC declared its own judgment
a nullity and termed it bad in law.
What are the Facts of Bilkis Bano Case?
z Filing of Petitions:
Ø Writ petitions were filed in SC assailing the Orders
of State of Gujarat dated 10th August 2022, granting
remission and early release of 11 convicts who
were all convicted, having been found guilty of
committing heinous crimes during the large-scale
riots in Gujarat on 28th February 2002 and a few
days thereafter which occurred in the aftermath of
the burning of the train incident in Godhra in the
State of Gujarat on 27th February 2002.
z Facts Mentioned in the Bilkis Bano’s Petition:
Ø The petition was related to brutally gang raping
the petitioner Bilkis Yakub Rasool, who was
pregnant at that time.
Ø Further, the petitioner’s mother was gang raped
and murdered, and her cousin who had just deliv-
ered a baby was also gang raped and murdered.
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Editorial Consolidation (January) 2024
Ø Eight minors including the petitioner’s cousin’s
two-day-old infant were also murdered.
Ø The petitioner’s three-year-old daughter was
murdered by smashing her head on a rock, her two
minor brothers, two minor sisters, her phupha
(paternal uncle), phupi (aunt), mama (maternal
uncle) and three cousins were all murdered.
Ø The Special Central Bureau of Investigation (CBI)
court sentenced 11 accused to life imprisonment
on the grounds of conspiring rape of a pregnant
woman, murders, and unlawful assembly under
the Indian Penal Code, 1860 (IPC) on 21st January
2008.
z Other Petitions Filed Before Court:
Ø Several Petitions were filed in the name of Dr
Meeran Chadha Borwankar v. State of Gujarat
(2002), Subhashini Ali v. State of Gujarat (2022),
Mahua Moitra v. State of Gujarat (2022), National
Federation of Indian Women (NFIW) v. State of
Gujarat (2022), Asma Shafique Shaikh v. State of
Gujarat (2022) and by the victim herself against the
order of Gujarat Government on 10th August 2022.
What were the Issues
Involved in the Bilkis Bano Case?
z Whether the Government of the State of Gujarat was
competent to pass the impugned orders of remission?
z Whether the orders of remission were in accordance
with law?
What were the Contentions of Petitioners?
z Conviction was Done by Maharashtra Court:
Ø Petitioners said that once a competent Court in the
State of Maharashtra had tried and convicted the
accused then that State is the ‘appropriate Gov-
ernment’.
Ø Therefore, the Orders of remission passed by the
State of Gujarat in respect of 11 convicts are
without jurisdiction and nullity and thus, are liable
to be quashed.
z Remission Policy of 1992:
Ø The petitioner submitted that since the ‘appropriate
government’ in the instant case is the State of
Maharashtra, the remission policy of the State of
Maharashtra would be applicable.
Ø Thus, the remission policy of the State of Gujarat
dated 09th July 1992 would be wholly inapplicable.
 www.drishtijudiciary.com
Ø The Remission Policy of 1992 of State of Gujarat
was applied for these remissions as then the
remission policy of 2014 did not came into force.
Ø The Remission Policy of 1992 did not exempt rape
convicts from getting the benefit of remission.
What was the Major
Defence of the State of Gujarat?
The State of Gujarat in its affidavit said that if a policy
which is beneficial to the convict exists at the time of
consideration of the application of premature release,
then the convict cannot be deprived of such beneficial
policy and that judicial review of the order of remission
is not permissible in law.
What is the Conclusion of Supreme
Court on the Bilkis Bano Judgment?
z Appropriate Government:
Ø If the State of Gujarat had filed an application
seeking review of the said order stating that it was
not the “appropriate Government” but the State
of Maharashtra was the “appropriate Government”,
ensuing litigation would not have arisen at all.
Ø On the other hand, in the absence of filing any
review petition seeking a correction of the order
passed by SC on 13th May 2022, the State of Gujarat
herein has usurped the power of the State of
Maharashtra and has passed the impugned orders
of remission is in court’s view a nullity in law.
z Nullified the Order of 13th May 2022:
Ø The judgment dated 13th May 2022 passed by SC
is a nullity and is non est in law since the said order
was sought by suppression of material facts as well
as by misrepresentation of facts and therefore,
fraudulently obtained at the hands of SC.
z Surrender in Jail:
Ø SC directed the beneficiaries of remission to report
to the concerned jail authorities within two weeks.
Remission in Bilkis Bano Judgment
Introduction
Recently the Supreme Court set aside the remission
granted to the 11 life convicts of the Bilkis Bano rape case
also known as Bilkis Yakub Rasool v. Union of India & Ors.
(2022). The remission was granted by the State of Gujarat
under its remission policy of 1992 on 10th August 2023.
Before the order of remission, a division bench of SC held
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Editorial Consolidation (January) 2024
that the State of Gujarat was the appropriate government
under the Code of Criminal Procedure, 1973 (CrPC) to
grant the remission.
What is Remission under the Code
of Criminal Procedure, 1973 (CrPC)?
z About:
Ø Remission is a legal concept that involves the
reduction or mitigation of a punishment imposed
by the court.
z Section 432 CrPC - Power to Suspend or Remit
sentences:
Ø Section 432 of the CrPC grants the state government
or the central government, depending on the
nature of the offense, the power to suspend or
remit the sentence of a convicted person.
Ø The exercise of this power is contingent upon
certain factors, such as the nature of the offense,
the character of the offender, and the circumstances
of the case.
Ø The discretion conferred under Section 432 is not
unbridled.
z Section 433 CrPC - Power to commute sentences
Ø Section 433 allows the appropriate government to
substitute a less severe punishment for the one
originally imposed.
Ø Court can commute sentence of death, imprison-
ment for life, rigorous imprisonment, and fine.
What were the Views of Supreme
Court on Remission in Bilkis Bano Case?
z Petitioner’s Ground:
Ø The petitioner raised the issue that the power to
grant remission was exercised without application
of mind, and that the said power was exercised by
the Governor having regard to extraneous consi-
derations and even without the aid and advice of
the Government, namely, the concerned Minister.
z Liberty and Rehabilitation:
Ø Liberty is one of the most precious and cherished
possessions of a human being and he would resist
forcefully any attempt to diminish it.
Ø Similarly, rehabilitation and social reconstruction of
a life convict, as an objective of punishment become
a paramount importance in a welfare State.
Ø The State has to achieve the goal of protecting
society from the convict and also rehabilitate the
offender.
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z Purpose of Remission Policy:
Ø The remission policy manifests a process of reha-
bilitating a person who, under certain circumstanc-
es, has indulged in criminal activities and is required
to be rehabilitated.
Ø Thus, punishment should not be regarded as the
end but only a means to an end.
Ø Relevancy of circumstances to an offence such as
the state of mind of the convict when the offence
was committed, are factors to be taken note of.
z Remission by Gujarat Government Invalid:
Ø In view of Section 432 (7) read with Section 432 (1)
and (2) of the CrPC, court held that the Government
of the State of Gujarat had no jurisdiction to
entertain the prayers seeking remission of 11
convicts as it was not the appropriate Government
within the meaning of the aforesaid provisions.
Ø Hence, the orders of remission dated 10th August
2022 made in favour of 11 convicts were declared
illegal, vitiated and therefore, quashed.
What were the Landmark Cases
of Remission Cited in Bilkis Bano Case?
z Gopal Vinayak Godse v. State of Maharashtra (1961):
Ø It was observed by SC that “Remission limited a
time, helps computation but does not ipso jure
operate as release of the prisoner”.
 But, when the sentence awarded by the Judge
is for a fixed term, the effect of remissions may
be to scale down the term to be endured and
reduce it to nil, while leaving the factum and
quantum of sentence intact.
Ø However, when the sentence is a life sentence,
remissions, quantified in time, cannot reach a point
of zero. Since Section 433-A of CrPC deals only with
life sentences, remissions cannot entitle a prisoner
to release.
z Maru Ram v. Union of India (1980):
Ø In this case, SC said that it is true that there appears
to be a modern trend of giving punishment a color
of reformation so that stress may be laid on the
reformation of the criminal rather than his confine-
ment in jail which is an ideal objective.
Ø At the same time, it cannot be gainsaid that such
an objective cannot be achieved without mustering
the necessary facilities, the requisite education and
the appropriate climate which must be created to
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Editorial Consolidation (January) 2024
foster a sense of repentance and penitence in a
criminal so that he may undergo such a mental or
psychological revolution that he realises the con-
sequences of playing with human lives.
z Laxman Naskar v. State of West Bengal (2000):
Ø In this case, SC stipulated the factors that govern
the grant of remission namely:
 Whether the offence is an individual act of crime
without affecting the society at large?
 Whether there is any chance of future recurrence
of committing crime?
 Whether the convict has lost his potentiality in
committing crime?
 Whether there is any fruitful purpose of confin-
ing this convict any more?
 Socio-economic condition of the convict’s
family.
z Epuru Sudhakar v. State of AP (2006):
Ø SC held that judicial review of the order of
remission is available on the following grounds:
 non-application of mind;
 order is mala fide;
 order has been passed on extraneous or wholly
irrelevant considerations;
 relevant materials kept out of consideration;
 order suffers from arbitrariness.
Kerala Hand Chopping Case
Introduction
The prime accused in the brutal assault on Professor
T.J. Joseph in Thodupuzha, Kerala, was apprehended by
the National Investigation Agency (NIA) after 13 years of
evading the law. The arrest recently took place in a village
in northern Kerala’s Kannur, where the accused had been
living under a false identity. The assault on Professor T.J.
Joseph occurred in July 2010 when religious extremists
targeted him for allegedly drafting a question paper with
a ‘blasphemous’ reference.
What is the Root Cause and
Current Development in the Case?
z NIA’s Involvement:
Ø The NIA took over the investigation in 2011 and
secured the conviction of 19 individuals under
various offenses, including the Unlawful Activities
(Prevention) Act, in a two-phase trial.
 www.drishtijudiciary.com
Ø However, the key accused, including the accused
who has been recently arrested, hindered the
closure of the case.
Ø The NIA had earlier announced a ₹10 lakh bounty
for information leading to the arrest of the recently
captured accused.
z Network of Conspirators:
Ø The current arrest has shifted the focus to unravelling
the network of conspirators who orchestrated the
assault and those who harbored him during his
fugitive years.
z Addressing the Root Cause:
Ø The outlawed Students Islamic Movement of India,
transforming into the National Development Front
and later into the Popular Front of India (PFI),
underscores the need to dismantle the entire net-
work of its underground supporters.
Ø Professor Joseph, while overcoming personal griev-
ances, emphasizes that taking action against the
foot soldiers of religious terror is insufficient for
societal peace. The handlers must also be held
accountable.
What are Provisions Related to
Prohibition on Marriage
Blasphemy under Indian Criminal Law?
z Section 295A of Indian Penal Code, 1860 (IPC)-
within Sapinda Relationships
Deliberate and malicious acts intended to outrage Introduction
religious feelings:
Ø This section of IPC makes it an offence to deliberately
and maliciously insult the religious beliefs of any
class of citizens, with the intention of outraging
their religious feelings.
Ø The punishment for an offence under this section
can extend to three years of imprisonment, or a
fine, or both.
z Section 153A of IPC - Promoting enmity between
different groups on grounds of religion, race, place
of birth, residence, language, etc., and doing acts
prejudicial to maintenance of harmony:
Ø This section deals with promoting enmity between
different groups on the basis of religion, among
other factors. Any person who, by words, either
spoken or written, or by signs, or by visible rep-
resentations or otherwise, promotes or attempts
to promote feelings of enmity, hatred, or ill-will
between different religious, racial, language, or
regional groups or castes, is punishable under this
section.
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Editorial Consolidation (January) 2024
z Current Scenario:
Ø Section 196 of Bharatiya Nyaya Sanhita, 2023
(BNS) punishes promoting enmity between differ-
ent groups on grounds of religion, race, place of
birth, residence, language, etc., and doing acts
prejudicial to maintenance of harmony.
Ø Section 199 of BNS states that Whoever, with
deliberate and malicious intention of outraging the
religious feelings of any class of citizens of India,
by words, either spoken or written, or by signs or
by visible representations or through electronic
means or otherwise, insults or attempts to insult
the religion or the religious beliefs of that class,
shall be punished with imprisonment of either
description for a term which may extend to three
years, or with fine, or with both.
Conclusion
The arrest of accused represents a significant step
towards closure in the long-pending case of Professor T.J.
Joseph, highlighting the importance of dismantling terror
networks from top to bottom for lasting peace and
harmony in society.
The recent ruling by a division bench of Acting Chief
Justice Manmohan and Justice Manmeet Pritam Singh
Arora of Delhi High Court dismissing a challenge to the
constitutionality of Section 5(v) of the Hindu Marriage
Act, 1955 (HMA), sheds light on the intricacies of sapinda
marriages and their legal implications.
The court’s decision, passed in the case of Neetu
Grover v. Union of India & Ors. (2024), underscores the
necessity of regulating marital unions to prevent the
legitimization of incestuous relationships.
What are Sapinda Marriages?
z Section 3 of the HMA:
Ø Sapinda marriages, as defined under Section 3 of
the HMA, pertain to unions between individuals
who share a close familial lineage.
z Lineal Ascendant:
Ø Section 3(f)(ii) outlines that with reference to any
person extends as far as the third generation
(inclusive) in the line of ascent through the mother,
and the fifth (inclusive) in the line of ascent
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through the father, the line being traced upwards
in each case from the person concerned, who is to
be counted as the first generation;
Ø Section 3(f)(ii) outlines the criteria, stating that
individuals are considered sapindas if they share a
lineal ascendant within the prescribed limits of
sapinda relationships.
z Purpose:
Ø Under the HMA provisions, individuals are prohibi-
ted from marrying certain relatives within specified
generational bounds on both the maternal and
paternal sides. This prohibition aims to prevent
unions that could potentially lead to incestuous
relationships.
What is the Legal
Framework and Prohibition?
z Section 5(v) of the HMA:
Ø It explicitly prohibits sapinda marriages unless local
customs or practices permit otherwise.
Ø The law mandates that marriages found in violation
of this provision, without established customs
validating such unions, are deemed void ab initio,
nullifying the marriage as if it never occurred.
z Custom as Exception:
Ø The exception to this prohibition lies in the recogni-
tion of customs, as delineated in Section 3(a) of
the HMA.
Ø For a custom to be upheld, it must demonstrate
continuity, uniformity, and acceptance within
Hindu communities, without being unreasonable
or contrary to public policy.
What are Legal Challenge
and Judicial Response?
z Case of Petitioner:
Ø The petitioner, despite the mutual consent of fam-
ilies and the solemnization of marriage with her
husband, faced a declaration of nullity under Sec-
tion 5(v) of the HMA Act.
Ø She asserts that her husband and his family perpe-
trated fraud by inducing her into believing in the
validity of their marriage, only to release them-
selves from legal obligations through the impugned
section of the Act.
Ø The petitioner highlighted the prevalence of mar-
riages among blood relatives in southern states like
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Editorial Consolidation (January) 2024
Tamil Nadu and Karnataka, where such unions are
protected by custom.
 However, her inability to prove this custom has
led to the nullification of her marriage.
Ø She argued that Section 5(v) violates Article 14 of
the Constitution by treating her differently.
Ø Moreover, she contended that despite the exist-
ence of the provision, marriages between sapindas
occur commonly, demanding the section’s repeal
to safeguard the interests of affected women and
promote societal liberalization.
z Dismissal:
Ø However, the High Court, composed of Acting Chief
Justice Manmohan and Justice Manmeet Pritam
Singh Arora, dismissed the petitioner’s arguments.
Ø The court emphasized the requirement for strin-
gent proof of established customs to justify sapin-
da marriages, a burden the petitioner failed to
meet.
Ø Consequently, the court found no substantive legal
basis to deem the prohibition unconstitutional.
What are International Perspectives on
Marriage within Sapinda Relationship?
z European Perspective:
Ø In Europe, laws concerning incestuous relationships
are comparatively lenient compared to those in
India.
z France and Belgium:
Ø In France, the Penal Code of 1810, enacted during
Napoleon Bonaparte’s rule, abolished the crime of
incest as long as it involved consenting adult
marriages.
Ø Belgium initially adopted the French Penal Code of
1810 and later introduced its own Penal Code in
1867, yet incest remains legal in both jurisdictions.
z Portugal:
Ø Portuguese law also does not criminalize incestuous
relationships.
z Republic of Ireland:
Ø Despite legalizing same-sex marriages in 2015, the
law on incest in the Republic of Ireland does not
extend to individuals in same-sex relationships.
z Italy:
Ø In Italy, incest is only considered a crime if it results
in a “public scandal.”
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z United States:
Ø In the United States, all 50 states prohibit incestuous
marriages. However, consenting adult incestuous
relationships are permitted in New Jersey and
Rhode Island.
Conclusion
The Delhi High Court’s affirmation of Section 5(v) of
the HMA underscores the state’s interest in regulating
matrimonial alliances to prevent the normalization of
incestuous relationships. By upholding the requirement
for established customs, the court ensures that marital
unions adhere to societal norms and legal standards. While
debates surrounding personal freedoms and cultural
practices persist, the judiciary’s commitment to upholding
constitutional principles remains unwavering.
Adani-Hidenburg Case
Introduction
Recently a three-judge bench of the Supreme Court
consisting of Chief Justice of India (CJI) D Y Chandrachud,
Justices J B Pardiwala and Manoj Misra refused to order
any inquiry by the Special Investigation Team (SIT) or the
Central Bureau of Investigation (CBI) in Hindenburg report
of Securities and Exchange Board of India (SEBI).
The court gave this judgment in the case of Vishal
Tiwari v. Union of India (2023) also known as Adani-
Hindenburg Case.
What is the Securities
and Exchange Board of India?
z SEBI was primarily formulated as a non-statutory body
on 12th April 1988, via a resolution of the Government
of India.
z It became statutory body in the year 1992 and the
provisions of the Securities and Exchange Board of
India Act, 1992 (15 of 1992) came into force on 30th
January 1992.
z It is a market regulator; regulates the securities market.
z It turned into a statutory body from regulatory body
after Harshad Mehta Securities Scam of 1992.
What are the Facts of
the Adani-Hindenburg Case?
z Hindenburg Research Report:
Ø On 24th January 2023, Hindenburg Research, a
short-selling firm of the US, released a damning
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report accusing the Adani Group of manipulating
stock prices.
z Denial of Adani Group:
Ø The Adani Group vigorously denied the claims with
a detailed 413-page response.
z Step Taken by Supreme Court:
Ø On 2nd March 2023, the SC established a committee,
including figures like Mr. OP Bhat and Justice AM
Sapre, to examine potential regulatory failures.
Ø Initially given two months, SEBI sought a six-month
extension in May, citing the complexity of transac-
tions.
Ø The SC granted an extension until 14th August 2023,
and later allowed an additional 15 days upon SEBI’s
request.
z Defence by SEBI:
Ø SEBI said that it has conducted a significant part
of the investigation, but the investigation is not
over yet.
z Issue Raised by Petitioner:
Ø The petitioner raised the issue related to the delay
in reaching a conclusion by SEBI.
Ø The petitioner raised concerns about the drastic
fall in the securities market, the impact on inves-
tors, the purported lack of redressal available and
the disbursement of loans to the Adani group
allegedly without due procedure.
z Request of Petitioner:
Ø The petitioners sought the transfer of the investi-
gation from SEBI to the CBI or a SIT.
What were Major
Contentions Provided by Petitioner?
z Hindenburg Report:
Ø The Hindenburg Report and certain newspaper
reports allege that some Foreign Portfolio Invest-
ments (FPI) in Adani group stocks in the Indian stock
market are owned by shell companies based out-
side India, which have close connections with the
Adani group.
Ø Such investments in Adani stocks allow the Adani
group to maintain financial health and artificially
boost the value of stocks in the market, in violation
of Indian law.
z Organized Crime and Corruption Reporting Project:
Ø The investigative findings of the Organized Crime
and Corruption Reporting Project, published by two
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newspapers, indicate price manipulation by the
Adani group through two Mauritius-based funds.
 However, SEBI did not act on such reports.
z Directorate of Revenue Intelligence Report:
Ø The Directorate of Revenue Intelligence had ad-
dressed a letter dated 31st January 2014 to the then
SEBI Chairperson alerting them about possible
stock market manipulation being committed by
the Adani group by overvaluation of the import of
power equipment.
 However, SEBI did not take adequate action
based on this letter.
What were Major
Contentions Presented by SEBI?
z Involvement of Agencies If Required:
Ø Twenty-two out of twenty-four investigations being
conducted by SEBI are complete.
Ø In these investigations, enforcement actions/ quasi-
judicial proceedings would be initiated, wherever
applicable.
z Directorate of Revenue Intelligence Report:
Ø The petitioner’s reliance on the letter by the DRI is
misconceived.
Ø After having received DRI’s letter, SEBI sought
information from DRI on the subject and received
a response.
z Organized Crime and Corruption Reporting Project:
Ø The OCCRP report relied on by the petitioner lacks
documentary support and certain important facts
with regard to the source of the report have been
concealed.
What are the Conclusions
Made by the Supreme Court?
z Competition of Twenty-Two Investigations:
Ø SEBI has completed twenty-two out of the twenty-
four investigations into the allegations levelled
against the Adani group.
Ø Noting the assurance given by the Solicitor General
on behalf of SEBI, the court directed SEBI to comp-
lete the two pending investigations expeditiously,
preferably within three months.
z Transfer of Investigation Denied:
Ø The SC said that the facts of this case do not war-
rant a transfer of investigation from SEBI.
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Editorial Consolidation (January) 2024
Ø In an appropriate case, SC does have the power to
transfer an investigation being carried out by the
authorized agency to an SIT or CBI.
Ø Such a power is exercised in extraordinary circums-
tances when the competent authority portrays a
glaring, willful and deliberate inaction in carrying
out the investigation.
z DRI’s Report:
Ø SC said that the report by a third-party organization
without any attempt to verify the authenticity of
its allegations cannot be regarded as conclusive
proof.
z Word of Caution:
Ø Court while concluding emphasized that public
interest jurisprudence under Article 32 of the
Constitution was expanded by this Court to secure
access to justice and provide ordinary citizens with
the opportunity to highlight legitimate causes be-
fore this Court.
Ø It has served as a tool to secure justice and ensure
accountability on many occasions, where ordinary
citizens have approached the Court with well-
researched petitions that highlight a clear cause
of action.
Ø However, petitions that lack adequate research
and rely on unverified and unrelated material tend
to, in fact, be counterproductive.
Judgement on South
Africa’s Case Against Israel
Introduction
The recent verdict by the International Court of Justice
(ICJ) regarding South Africa’s case against Israel has
sparked varied reactions globally. The dissenting opinions,
particularly that of Judge Barak and Judge Julia Sebutinde,
have intensified the discourse surrounding the ICJ’s role
in addressing complex international conflicts. The procee-
dings instituted by South Africa against Israel concerning
alleged violations in the Gaza Strip under the Convention
on the Prevention and Punishment of the Crime of
Genocide, 1948 (Genocide Convention) mark a significant
legal confrontation.
What is the Background of the Case?
z Lodging of Application:
Ø On 29th December 2023, South Africa lodged an
Application with the Court, alleging Israel’s viola-
tions of the Genocide Convention in Gaza.
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Ø The Application was accompanied by a Request for
provisional measures urgently seeking Israel’s sus-
pension of military operations and adherence to
the Convention’s obligations.
z Context Behind Proceedings:
Ø The context leading to the proceedings was the 7th
October 2023 attack by Hamas and other armed
groups in Israel, resulting in significant casualties
and subsequent Israeli military operations in Gaza.
z Acknowledgment by Court:
Ø The Court acknowledged the human tragedy
unfolding in the region and the international com-
munity’s concern, as evidenced by resolutions
passed by various UN organs.
z Request for Provisional Measures:
Ø South Africa’s request for provisional measures
encompassed nine points, aiming primarily at
halting military operations, ensuring protection for
Palestinians, and preventing genocide-related acts.
Ø These measures underscored the urgency and
gravity of the situation in Gaza, as perceived by
South Africa.
What was the Judgment on
South Africa’s Case Against Israel?
The Court, in its judgment, undertook a thorough
examination of prima facie jurisdiction, the standing of
South Africa, and the necessity for provisional measures.
z Prima Facie Jurisdiction:
Ø The Court reiterated its precedent that provisional
measures can only be indicated if the applicant’s
provisions offer a basis for jurisdiction, without
definitive assessment of the merits.
Ø South Africa invoked Article 36(1) of the Statute
of the Court and Article IX of the Genocide Con-
vention to establish jurisdiction.
Ø Notably, both South Africa and Israel being parties
to the Convention without reservations to Article
IX, prima facie jurisdiction was recognized.
z Existence of a Dispute:
Ø Article IX of the Genocide Convention mandates
the Court’s jurisdiction upon the existence of a
dispute regarding interpretation, application, or
fulfillment of the Convention.
Ø The Court examined statements from both parties,
noting South Africa’s allegations of genocide and
Israel’s rebuttals.
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Editorial Consolidation (January) 2024
Ø The Court found prima facie evidence of a dispute,
with acts alleged by South Africa possibly falling
under the Convention’s provisions.
z South Africa’s Stand:
Ø Israel did not contest South Africa’s standing,
recognizing all Genocide Convention parties’ com-
mon interest in preventing genocide.
Ø o Hence, South Africa’s standing to bring forth the
dispute was confirmed by the Court.
What were the Different Opinions of Judges?
z Opinion of Judge Xue:
Ø In her concurrence, Judge Xue underscores the
longstanding presence of the Palestinian issue on
the UN agenda, emphasizing the unfulfilled right
to self-determination for Palestinians, particularly
those in Gaza.
Ø She highlighted the UN’s perpetual responsibility
towards Palestine until resolution according to
international legitimacy.
Ø Judge Xue argued for robust protection of Pales-
tinians from genocide, stressing the international
community’s obligation, including the court, to
ensure such safeguards.
Ø Expressing deep concern over the dire humanitarian
situation in Gaza, exacerbated by Israeli military
actions, she recalled historical precedents where
legal proceedings failed to address breaches,
tarnishing the court’s reputation.
Ø Judge Xue advocated for recognizing the legal
standing of states under erga omnes partes,
especially for protected groups like Palestinians,
citing the Genocide Convention.
Ø She supported the court’s provisional measures as
warranted in addressing the crisis.
z Dissenting Opinion of Judge Sebutinde:
Ø Judge Sebutinde dissented characterizing the
Israel-Palestine conflict as primarily political, advo-
cating for diplomatic resolution guided by relevant
Security Council resolutions.
Ø She questioned South Africa’s claims, arguing they
lack prima facie evidence of genocidal intent under
the Genocide Convention.
Ø Judge Sebutinde deemed the rights asserted by
South Africa implausible and contends that the
court’s indicated provisional measures are unwar-
ranted.
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z Declaration of Judge Bhandari:
Ø Judge Bhandari condemned attacks on civilians
while cautioning that the court lacks a complete
factual record.
Ø He argued for considering the plausibility of South
Africa’s claims based on available evidence, em-
phasizing the humanitarian catastrophe in Gaza.
Ø Judge Bhandari supported the court’s provisional
measures as justified under the circumstances.
z Declaration of Judge Nolte:
Ø Judge Nolte agreed with the court’s decision on
provisional measures, emphasizing the plausible
risk to Palestinian rights under the Genocide Con-
vention due to statements by Israeli officials.
Ø He supported South Africa’s claims and the neces-
sity of the indicated provisional measures.
z Separate Opinion of Judge ad hoc Barak:
Ø Judge ad hoc Barak emphasized Israel’s existing
obligations under international law and questions
South Africa’s good faith in initiating proceedings.
Ø He challenged the plausibility of South Africa’s
claims regarding genocidal intent and criticizes the
court’s assessment of provisional measures.
Ø Judge ad hoc Barak underscored the importance
of international humanitarian law in addressing
the Gaza conflict and expresses regret over the
court’s handling of the situation regarding hostages
and evidence.
Conclusion
The Court concluded that the conditions for indicating
provisional measures were met. It directed Israel to take
immediate steps to prevent genocide-related acts, ensure
humanitarian assistance, preserve evidence, and submit
reports on measures taken. In its judgment, the Court
emphasized adherence to international humanitarian law
by all parties involved and urged the immediate release
of hostages held by armed groups.
India Maldives Bilateral Relations
Introduction
Recently, the Prime Minister of India visited Lakshad-
weep Island and hankered Indian tourists to visit the
beaches in Lakshadweep. This led to a controversial reply
of a Maldivian minister making fun of the Prime Minister
of India terming him as a puppet of Israel. The issue was
later stretched by the involvement of several other min-
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Editorial Consolidation (January) 2024
isters of Maldives. However, Indian celebrities joined the
promenade and urged tourists to visit Lakshadweep Island.
What is the Background
of India-Maldives Relations?
z India and the Maldives share historical ties that span
centuries.
z The cultural affinities and historical connections have
laid the foundation for a strong diplomatic relationship.
z The Maldives, an archipelago strategically located in
the Indian Ocean, has been an important partner for
India, and historical trade routes have facilitated
interaction between the two nations for centuries.
How are Trade Relations
Between India and Maldives?
z India and Maldives signed a trade agreement in 1981,
which provides for the export of essential commodities.
z India emerged as Maldives’ 3rd largest trade partner
in 2021.
z Indian imports from the Maldives primarily comprise
scrap metals while Indian exports to the Maldives
include a variety of engineering and industrial products
like drugs and pharmaceuticals, radar apparatus,
rock boulders, aggregates, cement and agriculture
produce like rice, spices, fruits, vegetables and poultry
produce etc.
z During 1st to 4th August 2022, the official visit of
President Solih to India, facilitation of duty-free tuna
exports to India from Maldives was announced as well
as an MoU on Collaboration in potential fishing zone
forecast capacity building and data sharing and marine
scientific research between Indian National Center for
Ocean Information Services (INCOIS), India and
Ministry of Fisheries, Maldives has been signed.
What is the Trade Agreement of 1981?
z Agreement named as Trade Agreement Between the
Government of The Republic of India and the Govern-
ment of The Republic of Maldives was signed by India
and Maldives on 1st March 1981.
z It was made in effect for 1 year until any of the signing
countries modified it.
Conclusion
The said controversy will have impact upon inter-
national relations as well as trade relations of India and
Maldives.
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Major Changes Under Bhartiya
Nagarik Suraksha Sanhita, 2023
Introduction
Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) is one
of the three criminal law bills introduced by the Union
Government to replace the Criminal Procedure Code,
1973 (CrPC). BNSS was passed in Lok Sabha on 20th
December 2023 and in Rajya Sabha on 21st December
2023. On 25th December 2023, the President gave her
assent to the three new criminal code bills.
What are the Major Changes Introduced in
the Bhartiya Nagarik Suraksha Sanhita, 2023?
The BNSS retains most of the provisions of the CrPC.
Some of the major changes include:
z Detention of Undertrials:
Ø As per the provisions of CrPC, if an accused has
spent half of the maximum period of imprisonment
in detention, he must be released on personal bond.
This does not apply to offences punishable by death.
Ø The BNSS further adds that this provision will also
not apply to offences punishable by life imprison-
ment, and persons against whom proceedings are
pending in more than one offence.
z Medical Examination:
Ø The BNSS provides that any police officer can
request for the medical examination of the accused
in certain cases, including rape cases.
Ø Whereas CrPC allowed such examination by a
registered medical practitioner on the request of
at least a sub-inspector level police officer.
z Forensic Investigation:
Ø The BNSS mandates forensic investigation for
offences punishable with at least seven years of
imprisonment. In such cases, forensic experts will
visit crime scenes to collect forensic evidence and
record the process on mobile phone or any other
electronic device. If a state does not have a foren-
sics facility, it shall utilize such facility in another
state.
z Signatures and Finger Impressions:
Ø The CrPC empowers a Magistrate to order any person
to provide specimen signatures or hand-writing.
Ø The BNSS expands this to include finger impressions
and voice samples. It allows these samples to be
collected from a person who has not been arrested.
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Editorial Consolidation (January) 2024
z Timelines for Procedures:
Ø The BNSS prescribes timelines for various procedu-
res. For instance, it requires medical practitioners
who examine rape victims to submit their reports
to the investigating officer within seven days.
Ø Other specified timelines include giving judgement
within 30 days of completion of arguments
(extendable up to 45 days), informing the victim
of progress of investigation within 90 days, and
framing of charges by a sessions court within 60
days from the first hearing on such charges.
z Hierarchy of Courts:
Ø The CrPC empowers the state governments to
notify any city or town with a population of more
than one million as a metropolitan area. Such areas
have Metropolitan Magistrates.
Ø The BNSS removes the classification of metropo-
litan areas and Metropolitan Magistrates.
z Use of Handcuffs:
Ø The BNSS permits the use of handcuffs in various
cases, including organized crime, which contradicts
directives laid down by the Supreme Court.
z Police Custody:
Ø The BNSS allows up to 15 days of police custody,
which can be authorized in parts during the initial
40 or 60 days of the 60 or 90 days period of judicial
custody. This may lead to denial of bail for the
entire period if the police has not exhausted the
15 days custody.
z Bail:
Ø The CrPC provides for bail for an accused who has
been detained for half the maximum imprisonment
for the offence.
Ø The BNSS denies this facility for anyone facing
multiple charges. As many cases involve charges
under multiple sections, this may limit such bail.
z Terminology:
Ø It replaces outdated terminology with more people
friendly language, reflecting a humane approach.
Way Forward
This legislative stride positions India towards a more
equitable, accessible and efficient legal framework. The
journey of legal reforms has begun, and these pioneering
laws promise a future where justice is not only served but
is genuinely inclusive and reflective of the dynamic fabric
of our nation.
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Hit and Run Law z Section 106 (1):

Ø It states that whoever causes death of any person
Introduction
by doing any rash or negligent act not amounting
There was a major protest of truck drivers in resis- to culpable homicide, shall be punished.
tance to the new Hit and Run provision under Bhartiya Ø The punishment shall be imprisonment of either
Nyaya Sanhita, 2023. It is termed as black law by the description for a term which may extend to five
truckers. All India Motor Transport Congress’s (AIMTC) years and shall also be liable to fine.
Chairman said that they will not let the law come into
force. What are the Differences
The protest was called off after a meeting with Union Between Sub-sections of Section
Home Secretary after a condition that the law will come 106 of Bhartiya Nyaya Sanhita, 2023?
into force after consultation with AIMTC. Grounds Section 106 (1) Section 106 (2)
How was the Protest of BNS of BNS
Against Hit and Run Law Called off? General and It is a General It is a Specific
Specific Provision, which Provision, which
z The Government of India through a Press release covers any rash or covers rash and
Provision
issued on 2nd January 2024 specified that it has taken negligent act. negligent driving
cognizance of the concerns of truckers regarding the of vehicles.
provision of 10 years imprisonment and fine, under
Escape Any additional Commission of
Section 106 (2) of BNS and held a detailed discussion detail related to Murder along with
with the representatives of AIMTC. the escape of the escape without
z The government pointed out that these new laws and offender is not reporting it to
provisions have not yet come into force and the mentioned. a police officer
decision to invoke Section 106 (2) of BNS will be taken or a Magistrate
only after consultation with AIMTC. constitutes the
z The government appealed to AIMTC and all the drivers entire offence.
to return to their respective jobs. Form of General Aggravated form of
Punishment Punishment which Punishment which
What is the Hit and Run Law? may extend to five may extend to ten
z Offence under Section 106 (2): years and fine. years and fine.
Whoever causes death of any person by rash and
Ø
What is the Data Related to Road Accidents?
negligent driving of vehicle not amounting to
z Data on Accident:
culpable homicide and escapes without reporting
Ø A report from the Ministry of Road Transport and
it to a police officer or a Magistrate soon after the
Highways revealed that over 4.6 lakh accidents
incident, commits an offence under Section 106 (2)
occurred, leading to the unfortunate death of 19
of the BNS.
people every hour.
z Punishment under Section 106 (1):
Ø The data also indicated that 53 accidents happened
Ø The offender shall be punished with imprisonment every hour in the country.
of either description of a term which may extend z Road Accidents in India Report-2022:
to ten years and shall also be liable to fine. Ø As per the data of Road Accidents in India
z Ground for Remedy: Report-2022 ‘Hit from Back’ accounted for the
Ø As mentioned in the Section, if the person informs largest share in total accidents death (19.5%),
the police or a Magistrate, the court will get a followed by ‘Hit and Run’ and ‘Head on Collision’
ground to presume that the act was unintentional which account for 18.1% and 15.7% respectively.
under Section 106 (1) as intention works as signi- Ø The report also mentioned the position of Hit and
ficant tool for presumption. Run under Motor Vehicle Amendment Act, 2019.

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What was the Position of Hit and
Run Law before Bhartiya Nyaya Sanhita?
z Section 161 of the MV Amendment Act, 2019:
Ø Section 161 of the MV Amendment Act, 2019
provides enhanced rates of Rs. 2,00,000 on the
death of a victim in Hit and Run as against Rs
25,000 as was earlier provided as compensation.
Ø MV Amendment Act, 2019 provided fine in respect
of grievous hurt to any person resulting from a hit
and run motor accident, a fixed sum of fifty
thousand rupees or such higher amount as may be
prescribed by the Central Government.
z Section 304A of Indian Penal Code, 1860 (IPC):
Ø This section provides that whoever causes the
death of any person by doing any rash or negligent
act not amounting to culpable homicide, shall be
punished with imprisonment of either description
for a term which may extend to two years, or with
fine, or with both.
Ø Prior to BNS, the aforementioned provision was
applied by courts in the case of Hit and Run.
Way Forward
z It is imperative to facilitate open dialogue between
the government and AIMTC to address the apprehen-
sions of truckers regarding the Hit and Run provision.
z A collaborative approach in shaping road safety
legislation is crucial, considering the rise in road
accidents, as highlighted by the Ministry of Road
Transport and Highways’ 2022 report.
z Additionally, exploring amendments or alternatives to
the punitive measures under Section 106 of BNS could
strike a balance between public safety and the
concerns of transport stakeholders.
z Continuous engagement, transparency, and a data-
driven approach should guide future decisions to
ensure road safety without disproportionately affect-
ing any sector.
Laws Relating to Organ
Transplantation in India
Introduction
Recently, the Delhi High Court has prescribed an ideal
timeline of 6 to 8 weeks to complete the process of
transplanting organs from living donors.
The Court directed the government to ensure that the
timelines under the Transplantation of Human Organs
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Editorial Consolidation (January) 2024
and Tissues Act, 1994 and Rules 2014 are prescribed for
all steps in the process of considering organ donation
applications.
What was the Case Before Delhi High Court?
z In the case of Amar Singh Bhatia & Anr. v. Sir Ganga
Ram Hospital & Ors., a petition was filed by a retired
Indian Air Force officer who was diagnosed with kidney
failure in 2017.
z By the year 2019, two hospitals had advised him to
get a rental transplant.
z In June 2019 the petitioner attempted to obtain
approval for transplantation which was, however,
refused at the Army Hospital in New Delhi. The
required transplant was denied due to the non-
availability of a near relative donor.
z In the year 2020, the petitioner approached the High
Court seeking the transplant.
z In February 2021, the High Court directed the autho-
rization Committee to decide the petitioner ’s
application within 2 weeks.
z In October 2021, the petitioner passed away.
What were the Court’s Observations?
z Justice Pratibha M Singh observed that everything
from conducting interviews to processing forms and
decision-making is to be done within fixed timelines
and not in an expanded manner.
z The Court further held that the entire process from
submission to decision ought not to ideally exceed 6
to 8 weeks.
What are the Laws Relating
to Organ Transplantation in India?
z The primary legislation related to organ donation and
transplantation in India is the Transplantation of
Human Organs and Tissues Act, which was passed in
1994.
z According to the Preamble, the objectives of this Act
are as follows:
Ø To provide a legal framework for the procedures
involved in the removal, storage, and transplantation
of human organs and tissues, ensuring that these
activities are conducted for therapeutic purposes.
Ø A crucial aspect is to prevent commercial dealings
in human organs and tissues. It aims to curb any
form of illegal trade or exploitation related to organ
and tissue transplantation.
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Ø It ensures that the process of organ and tissue
transplantation is carried out in an ethical and
legally compliant manner, safeguarding the rights
and welfare of both donors and recipients.
Ø It emphasizes that the removal and transplantation
of organs and tissues should be strictly for thera-
peutic purposes, aligning with medical and ethical
standards.
z The key provisions of this Act include the following
aspects:
Ø This Act defines critical terms such as donor,
recipient, hospital, and brain death.
Ø It outlines its applicability, covering aspects of
organ and tissue transplantation, including con-
ditions under which organs can be removed from
living or deceased individuals.
Ø Specific provisions, such as Sections 3-9 of the Act,
provide for the removal of organs or tissues from
both living and deceased donors. This includes
scenarios where the donor is brain dead, a minor,
or an unclaimed body in a hospital. Consent pro-
cedures are detailed, emphasizing the need for
voluntary and informed consent.
Ø Sections 10-12 mandate that hospitals performing
organ or tissue removal, storage, or transplantation
must be registered. It specifies conditions for
registration, including necessary infrastructure, facili-
ties, and qualified personnel.
Ø Under Sections 13-13D of this Act, an Appropriate
Authority has been established for each State or
Union Territory. The said Authority is responsible
for granting registrations to hospitals, enforcing the
Act’s provisions, and conducting inspections.
Ø Section 13A of this Act provides for the estab-
lishment of Advisory Committees to assist the
Appropriate Authority. These committees, compri-
sing medical and legal experts, advise on technical,
ethical, and legal issues related to transplantation.
Ø One of the crucial aspects of the Act is its strict
prohibition of commercial dealings in human
organs as provided in Sections 19 and 19A.
Ø It criminalizes the buying and selling of human
organs, including advertising for organ sales. Viola-
tions are punishable by imprisonment and fines.
Ø Section 24 of this Act empowers the Central
Government to make rules for the implementation
23
Editorial Consolidation (January) 2024
of its provisions. As empowered by this provision,
the Central Government has framed the 2014
Rules.
Powers of Interception
under Post Office Act, 2023
Introduction
On 24 th December 2023, the President of India
approved the Post Office Bill, 2023, signaling a noteworthy
departure from the colonial-era Indian Post Office Act,
1898. Although the approval was expected, there are now
concerns about the extensive interception powers gran-
ted to post office authorities without sufficient procedural
safeguards.
During parliamentary debates, the Opposition expressed
worries about the Post Office Act, 2023 citing apprehensions
about the uncontrolled interception authority bestowed
upon post office authorities. The lack of precise definitions,
particularly concerning ‘emergency’ situations, along with
the absence of procedural safeguards, raises fears of
potential misuse of this authority.
What is Interception under Central Acts?
z Telecommunications Bill, 2023:
Ø On the same day, the Telecommunications Bill,
2023 also received presidential assent, replacing
the Indian Telegraph Act, 1885, and the Indian
Wireless Telegraphy Act, 1933.
Ø A comparative analysis reveals similarities with the
Telecommunication Act’s provision on interception,
akin to the Telegraph Act, 1885.
Ø The new Telecommunications Act introduces
Section 20(2), pertaining to the interception of
messages.
Ø This provision shares similarities with Section 5(2)
of the Telegraph Act, 1885, with notable modifi-
cations.
Ø The Act empowers the central government to
prescribe rules for preventing improper interception
or disclosure of messages, incorporating elements
from Section 7(2)(b) of Telegraph Act, 1885.
z Information Technology (IT) Act, 2000:
Ø The IT Act, 2000, provides a broader scope for
interception without the requirement of a ‘public
emergency’.
Ø Yet, concerns persist as rules for procedural safe-
guards were only notified in October 2009, empha-
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sizing the need for a balance between security
measures and privacy protection.
Ø Section 69(1) of the IT Act, 2000, extends the
authority for interception of information through
any computer source.
What is the Historical Context?
z The Supreme Court’s intervention in the People’s
Union for Civil Liberties (PUCL) v. Union of India
(1996) case led to the establishment of procedural
safeguards for telephonic interceptions under the
Telegraph Act, 1885.
z However, the absence of rules prompted the court to
set guidelines, later replaced by Telegraph Rule 419A
in 2007.
z Similar safeguards were extended to the IT Act
in 2009.
What are Privacy
Concerns and Legal Precedents?
z The nature of items transported by the post office,
including confidential letters and postcards, raises
concerns about the right to privacy.
z Legal precedents, such as the District Registrar and
Collector, Hyderabad v. Cana Bank (2005), emphasized
the retention of privacy even when personal items are
entrusted to third parties.
z The Bombay High Court’s directive in Communist
Party of India (Marxist), Maharashtra Unit v. Com-
missioner of Police, Greater Bombay (1995), further
highlighted the implicit need for recording reasons as
a safeguard against arbitrary exercise of interception
powers.
z In the landmark case of Justice K S Puttaswamy
(Retd.) & Anr. v. Union of India & Ors. (2017), the
right to communication was affirmed as part of the
right to privacy, reinforcing the need for stringent
safeguards.
What are the Safeguards?
z The newly enacted Post Office Act removes significant
conditions, such as the occurrence of ‘public emer-
gency’ and ‘in the interest of public safety,’ without
providing procedural safeguards.
z To allay fears of potential misuse, the central govern-
ment must introduce safeguards aligning with cons-
titutional principles and international conventions on
privacy rights.
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Editorial Consolidation (January) 2024
What are the Consequences
of Unauthorized Interception?
z While legal provisions exist for punishing unauthorized
interception, there is a lack of accountability for
authorities exceeding or misusing their powers.
z The absence of repercussions for willful misuse poses
challenges, especially considering the destruction of
interception records over time.
z Holding competent authorities accountable is crucial
to prevent the violation of privacy rights without
recourse to constitutional courts.
Conclusion
In the era of digital communication, the enactment of
the Post Office Act, 2023, brings attention to the delicate
balance between security measures and individual privacy
rights. To ensure responsible use of interception powers,
procedural safeguards and accountability mechanisms
must be incorporated. The central government’s commit-
ment to addressing these concerns will determine the
effectiveness of the new legislation and safeguard citizens’
right to privacy in the evolving landscape of communication.
Goa Cess Act, 2000
Introduction
Recently, the Bombay High Court has upheld the
constitutional validity of Goa Rural Improvement and
Welfare Cess Act, 2000 (Goa Cess Act), dismissing the
petitions filed by several mining and coal transport
companies.
The High Court further appreciated the State Govern-
ment for enacting legislation to address environmental
damage arising from transportation of harmful materials.
What is the Goa Cess Act?
z This Act was enacted in 2000 but it came into effect
from 2006 to augment revenue for improvement of
infrastructure and health and to promote welfare of
the people of the people residing in rural areas, being
affected by the use of plastics, dumping of garbage
and spillage of materials.
z The Act imposes cess on carriers transporting sche-
duled materials including coal, coke, sand, debris,
garbage, packaged water, mineral ore etc. in Goa.
What are the Characteristics of Goa Cess Act?
z This Act is enacted to generate additional revenue for
the improvement of infrastructure and health, aiming
 www.drishtijudiciary.com
to promote the welfare of people in rural areas affect-
ed by materials such as plastics, garbage dumping, and
spillage.
z This Act is related to entries 6 and 66 of the State List,
covering public health and sanitation, and providing
a pecuniary charge to meet public needs.
z It does not impose any tax discriminating between the
goods imported and goods manufactured in Goa. It
also does not impose any restriction on the freedom
of trade, commerce or intercourse within Goa.
z Section 4 of this Act provides that “Cess” is for benefit
of people affected by dumping of garbage, spillage
and plastic in process of transportation by any carrier
including railway.
z It confers powers on the executive to fix rates in the
Schedule.
z In this Act, different rates have been prescribed with
respect to carrier, transportation of ore from outside
the State which is based on reasonable classification.
What is a Cess?
z Different from the usual taxes and duties like excise
and personal income tax, a Cess is imposed as an
additional tax besides the existing tax (tax on tax) with
a purpose of raising funds for a specific task.
z The Union government is empowered to raise revenue
through a gamut of levies, including taxes (both direct
and indirect), surcharges, fees and cess.
z A cess, generally paid by the everyday public, is added
to their basic tax liability paid as part of total tax paid.
z Article 270 of the Constitution of India, 1950 (COI)
allows cess to be excluded from the purview of the
divisible pool of taxes that the Union government must
share with the States.
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Editorial Consolidation (January) 2024
What are the Various Types
of Cess Levied by the Government?
z The government levies different types of cess on
services it provides to the public. Some of them are
as follows:
Ø Education Cess:
 It is collected by the government to provide
mandatory free primary education to all citizens.
Ø Health Cess:
 Proposed in 2018 by former finance minister
Arun Jaitley to meet the health requirements of
below-poverty-line families.
Ø Road Cess or Fuel Cess:
 For maintenance of roads and infrastructure.
Ø Clean Energy Cess:
 Introduced in 2010, it is a carbon tax on the
production and import of coal, lignite and peat,
operating on the polluter pays principle.
Ø Krishi Kalyan Cess:
 It was introduced in 2016 to provide additional
support to farmers for agricultural activities.
Ø Swachh Bharat Cess:
 Introduced in 2014 with the objective of deliv-
ering a clean India, it is levied at 0.5 per cent on
all taxable services to fund Swachh Bharat initi-
atives.
Conclusion
This Act precisely deals with the societal needs of
having an effective infrastructure, which would not only
be in the interest of the commercial activities but also in
regard to the health and welfare of the people of Goa
residing in rural areas. ooo