3 Dec 2016

Restriction on cash-withdrawal under demonitizaton policy not illegal : Delhi High Court

By an order passed yesterday in Ashok Sharma v. Union of India [Writ Petition (Civil) No. 11130/2016, order dated 02.12.2016] a Division Bench of the Delhi High Court has dismissed the writ petition challenging the monetary limit imposed by the Central Government on cash withdrawals.

The High Court bench, headed by the Chief Justice, noted the relevant notification and the contentions of the party to opine that the notification and the underlying action were within the policy domain of the executive and could not be re-appreciated by the judiciary.

The findings of the High Court are in the following terms;
"7. Apparently, the restriction imposed under Clause 2(vi) is only with regard to cash withdrawal from a bank account over the counter. There are no restrictions or limits for operating the bank account by non-cash method. This is clear from Clause (vii) which provides that there are no restrictions on the use of any non cash method of operating the account of a person including cheques, demand drafts, credit or debit cards, mobile wallets and electronic fund transfer mechanisms or the like. Therefore, the contention of the petitioner that Clause 2(vi) infringes the right of the account holder to withdraw from his account on demand is factually incorrect and misconceived. Be it noted that it is always open to the account holder to withdraw from his account on demand, but the restriction is only with regard to withdrawal in the form of cash. Even assuming that the restriction so imposed on cash withdrawal from a bank account has resulted in some inconvenience or prejudice to the petitioner, we are unable to hold that the same runs contrary to Section 5(b) of the Banking Regulation Act, 1949. 
8. We also found that the Petitioner’s contention that Clause 2(vi) of the Notification dated 08.11.2016 shall not be made applicable to the bank deposits of the period prior to 08.11.2016, is wholly misconceived. According to us, no such distinction can be drawn between the bank deposits of the period prior to 8.11.2016 and after 8.11.2016 since the whole purpose of the restrictions imposed on cash withdrawal for a specified period i.e., upto 30.12.2016 appears to be to meet the demand of liquid cash in circulation in the light of the ban imposed on the bank notes of the denominations of Rs.500 and Rs.1000 under the Notification dated 8.11.2016. 
9. It may be added that the manner in which the decision to withdraw the bank notes of specified amount w.e.f. 09.11.2016 is to be implemented is a policy decision which is beyond the scope of powers of judicial review. The law is well settled that the Court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded ipse dixit offending the basic requirement of Article 14 of the Constitution of India. It is also a settled principle of law that the Court cannot strike down a policy decision taken by the Government merely because it has been contended that another decision would have been fairer or more scientific or logical or wiser. The wisdom and advisability of the policies are ordinarily not amenable to judicial review unless the policies are contrary to statutory or constitutional provisions or arbitrary or irrational. {Vide: M.P. Oil Extraction v. State of M.P. (1997) 7 SCC 592; Ram Singh Vijay Pal Singh v. State of U.P. (2007) 6 SCC 44; Villianur Iyarkkai Padukappu Maiyam v. Union of India (2009) 7 SCC 561; State of Kerala v. Peoples Union for Civil Liberties (2009) 8 SCC 46 and M.P. v. Narmada Bachao Andolan (2011) 7 SCC 639
10. In this context we may also refer to Census Commr. v. R. Krishnamurthy (2015) 2 SCC 796 wherein it was held by the Supreme Court that the interference with the policy decision and issue of a direction to frame a policy in a particular manner are absolutely different and the courts are not to plunge into policy-making by adding something to the policy or by issuing directions describing the manner in which a statutory Notification could be implemented.
11. Having considered an identical issue arising out of the very same Notification dated 8.11.2016, a Division Bench of this Court to which one of us, (Chief Justice) was a member held in W.P.(C) No.11234/2016 titled as Birender Sangwan vs. Union of India and Ors. as under;
"The law is well settled that on matters affecting policy this Court will not interfere unless the policy is unconstitutional or contrary to statutory provisions or arbitrary or irrational or in abuse of power, since the policy decisions are taken based on expert knowledge and the Courts are normally not equipped to question the correctness of the same. The scope of judicial enquiry is therefore confined to the question whether the decision taken by the Government is against any statutory provision or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution of India. [Vide: Parisons Agrotech (P) Ltd. v. Union of India (2015) 9 SCC 657, Manohar Lal Sharma v. Union of India (2013) 6 SCC 616, Union of India v. Dinesh Engg. Corpn. (2001) 8 SCC 491
The power of judicial review cannot be extended to determine the correctness of such a policy decision or to find out whether there could be more appropriate or better alternatives. As held in BALCO Employees’ Union Vs. Union of India (2002) 2 SCC 333, it is not within the domain of the Courts to embark upon an enquiry as to whether a particular public policy is wise or whether a better public policy can be evolved."
12. For the aforesaid reasons the writ petition is devoid of merit and the same is accordingly dismissed."

National anthem mandatory in all movies, symbol of the Constitutional Patriotism and inherent national quality: Supreme Court

In an order issued recently carrying significant directions to the Central and State Governments, the Supreme Court in Shyam Narayan Chouksey v. Union of India [W.P. (C) No. 855/2016 order dated 30.11.2016] has considered in detail the importance of ‘National Anthem’, its constitutional position and the corresponding obligations of the citizens.

The following directions have been issued by the Supreme Court today and have to be “given effect to within a period of 10 days;”

"(a) There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit.
(b) There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show. It is because when the National Anthem is sung or played it is imperative on the part of every one present to show due respect and honour. To think of a dramatized exhibition of the National Anthem is absolutely inconceivable.
(c) National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which may be disgraceful to its status and tantamount to disrespect. It is because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots in National identity, National integrity and Constitutional Patriotism.
(d) All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.
(e) Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened.
(f) When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.
(g) The abridge version of the National Anthem made by any one for whatever reason shall not be played or displayed."
Some of the other critical observations of the Supreme Court in the context of National Anthem are as under;

“The directions are issued, for love and respect for the motherland is reflected when one shows respect to the National Anthem as well as to the National Flag. That apart, it would instill the feeling within one, a sense committed patriotism and nationalism.”

“… it is the sacred obligation of every citizen to abide by the ideals engrafted in the Constitution. And one such ideal is to show respect for the National Anthem and the National Flag.”

“… a time has come, the citizens of the country must realize that they live in a nation and are duty bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. The idea is constitutionally impermissible.”

As of now this is an interim order and therefore will have limited application till the time issue is finally decided by the Supreme Court. Nonetheless an important development in the space of 'Fundamental Duties' in the constitutional space.

14 Nov 2016

Act against Female Foeticide, etc. - Supreme Court issues directions

Noting the importance of related issues i.e. "increase of female foeticide, resultant imbalance of sex ratio and the indifference in the implementation of the stringent law" [Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994], in its recent decision [Voluntary Health Association of Punjab v. Union of India - Writ Petition (Civil) No. 349/2016 - decision dated 08.11.2016] the Supreme Court has passed a number of directions to the various Government agencies to work towards the cause.

The Supreme Court was categorical to opine "that a female child is entitled to enjoy equal right that a male child is allowed to have" and the "constitutional identity of a female child cannot be mortgaged to any kind of social or other concept that has developed or is thought of". Therefore, "when a female foetus is destroyed through artificial means which is legally impermissible, the dignity of life of a woman to be born is extinguished"; it "corrodes the human values" and therefore "let it be stated with certitude and without allowing any room for any kind of equivocation or ambiguity, the perception of any individual or group or organization or system treating a woman with inequity, indignity, inequality or any kind of discrimination is constitutionally impermissible." Unequivocally expressing its view-point, the Supreme Court further expressed the following;
"34. ... The historical perception has to be given a prompt burial. Female foeticide is conceived by the society that definitely includes the parents because of unethical perception of life and nonchalant attitude towards law. The society that treats man and woman with equal dignity shows the reflections of a progressive and civilized society. To think that a woman should think what a man or a society wants her to think is tantamounts to slaughtering her choice, and definitely a humiliating act. When freedom of free choice is allowed within constitutional and statutory parameters, others cannot determine the norms as that would amount to acting in derogation of law. Decrease in the sex ratio is a sign of colossal calamity and it cannot be allowed to happen. Concrete steps have to be taken to increase the same so that invited social disasters do not befall on the society. The present generation is expected to be responsible to the posterity and not to take such steps to sterilize the birth rate in violation of law. The societal perception has to be metamorphosed having respect to legal postulates."
In this background, the Supreme Court issued a number of directions in the following terms;
32. Having stated about the scheme of the Act and the purpose of the various provisions and also the Rules framed under the Act, the dropping of sex ratio still remains a social affliction and a disease.
33. Keeping in view the deliberations made from time to time and regard being had to the purpose of the Act and the far reaching impact of the problem, we think it appropriate to issue the following directions in addition to the directions issued in the earlier order:-
(a) All the States and the Union Territories in India shall maintain a centralized database of civil registration records from all registration units so that information can be made available from the website regarding the number of boys and girls being born.
(b) The information that shall be displayed on the website shall contain the birth information for each District, Municipality, Corporation or Gram Panchayat so that a visual comparison of boys and girls born can be immediately seen.
(c) The statutory authorities if not constituted as envisaged under the Act shall be constituted forthwith and the competent authorities shall take steps for the reconstitution of the statutory bodies so that they can become immediately functional after expiry of the term. That apart, they shall meet regularly so that the provisions of the Act can be implemented in reality and the effectiveness of the legislation is felt and realized in the society.
(d) The provisions contained in Sections 22 and 23 shall be strictly adhered to. Section 23(2) shall be duly complied with and it shall be reported by the authorities so that the State Medical Council takes necessary action after the intimation is given under the said provision. The Appropriate Authorities who have been appointed under Sections 17(1) and 17(2) shall be imparted periodical training to carry out the functions as required under various provisions of the Act.
(e) If there has been violation of any of the provisions of the Act or the Rules, proper action has to be taken by the authorities under the Act so that the legally inapposite acts are immediately curbed.
(f) The Courts which deal with the complaints under the Act shall be fast tracked and the concerned High Courts shall issue appropriate directions in that regard.
(g) The judicial officers who are to deal with these cases under the Act shall be periodically imparted training in the Judicial Academies or Training Institutes, as the case may be, so that they can be sensitive and develop the requisite sensitivity as projected in the objects and reasons of the Act and its various provisions and in view of the need of the society.
(h) The Director of Prosecution or, if the said post is not there, the Legal Remembrancer or the Law Secretary shall take stock of things with regard to the lodging of prosecution so that the purpose of the Act is subserved.
(i) The Courts that deal with the complaints under the Act shall deal with the matters in promptitude and submit the quarterly report to the High Courts through the concerned Sessions and District Judge.
(j) The learned Chief Justices of each of the High Courts in the country are requested to constitute a Committee of three Judges that can periodically oversee the progress of the cases.
(k) The awareness campaigns with regard to the provisions of the Act as well as the social awareness shall be undertaken as per the direction No 9.8 in the order dated March 4, 2013 passed in Voluntary Health Association of Punjab (supra).
(l) The State Legal Services Authorities of the States shall give emphasis on this campaign during the spread of legal aid and involve the para-legal volunteers.
(m) The Union of India and the States shall see to it that appropriate directions are issued to the authorities of All India Radio and Doordarshan functioning in various States to give wide publicity pertaining to the saving of the girl child and the grave dangers the society shall face because of female foeticide.
(n) All the appropriate authorities including the States and districts notified under the Act shall submit quarterly progress report to the Government of India through the State Government and maintain Form H for keeping the information of all registrations readily available as per sub- rule 6 of Rule 18A of the Rules.
(o) The States and Union Territories shall implement the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014 forthwith considering that the training provided therein is imperative for realising the objects and purpose of this Act.
(p) As the Union of India and some States framed incentive schemes for the girl child, the States that have not framed such schemes, may introduce such schemes."

Entry Tax Law - Nine-judge Supreme Court judgment pronounced

Declaring the legal position which overrules the position prevailing for various decades now, last week a nine-judge bench of the Supreme Court has pronounced its decision on various aspect of Entry Tax laws. This decision in Jindal Stainless Ltd. v. State of Haryana [Civil Appeal No. 3453/2002 - decision dated 11.11.2016] has a significant bearing on various constitutional aspects; (a) federal nature of the Constitution; (b) freedom of inter-state trade and commerce under Part - XIII of the Constitution; (c) autonomy and sovereignty of States in designing local economy and imposing taxes; (d) principles of constitutional interpretation; etc.

The lead decision has been written by Chief Justice of India, Justice T.S. Thakur (for himself, Justice A.K. Sikri and Justice A.M. Khanwilkar. This decision has been agreed by Justice S.A. Bobde, Justice Shiv Kirti Singh, Justice N.V. Ramana, and Justice R. Bhanumati, who have also written seperate concurring opinions. Justice D.Y. Chandrachud and Justice Ashok Bhushan have written seperate dissenting opinions. Thus out of nine judges there are seven opinions. In all a lengthy decision (exceeding 900 pages) but a good backgrounder for those interested in constitutional law.

Saumya Murder case decision - Review and Contempt by Former Supreme Court Judge

Last week the Supreme Court faced an unprecedented situation - issuance of a 'Contempt of Court' notice to a former Judge of the Supreme Court. This situation arose on account of a decision of the Supreme Court in Govindaswamy v. State of Kerala. Holding a view that this decision was incorrect, a former judge of the Supreme Court Justice M. Katju expressed his views on his blog on a social media website. 

Considering that the views of a former Supreme Court Judge were penitent ground for review, the judges who delivered the judgment of the Court in Govindaswamy v. State of Kerala undertook suo-motu review proceedings. More so, possibly to hear first-hand from him, the Supreme Court judges issued a notice to Justice Katju to personally appear in the Supreme Court and justify his stand. This itself was unprecedented as in the history of the Supreme Court of India a former Supreme Court judge has never been called in the Court. 

Last week Justice Katju appeared in the Court to explain his stand. The Supreme Court also heard other parties on the review petition and by a detailed order dated 11.11.2016 dismissed the review petition in [SUO MOTU REVIEW PETITION (CRL) NO.1/2016]. However the Supreme Court did not stop here. Being of the opinion that the views expressed by Justice Katju "seem to be an attack on the Judges and not on the judgment", the Supreme Court vide a separate order dated 11.11.2016 has issued notice for contempt of Court to Justice Katju in SUO MOTU CONTEMPT PETITION (CRIMINAL) NO. 4 & 5 OF 2016.  

As stated above, this is unprecedented. In the history of the Supreme Court of India there is no parallel to a former Supreme Court judge having been issued notice to defend against contempt of court. 

We bring this update to you.