WRIT PETITION (CRIMINAL) NO. 115 OF 2009

FACTS

Aruna Ramachandra Shanbaug was working as a nurse in Mumbai in the King Edwards Memorial Hospital. On November 27, 1973, while she was changing her clothes in the hospital, she was assaulted by a sweeper named Sohanlal Bharatha Walmiki, who was also working in the same hospital. She was strangulated with a dog chain around her neck. This resulted in a cut off in the oxygen supply from her brain, which in turn led her to remain in a permanent vegetative state (PVS) for over 38 years (as of 2011). A journalist-activist Pinky Virani filed a writ petition under Article 32 before the Supreme Court of India. In the writ petition, she pleaded for the withdrawal of the medical support provided to Aruna to relieve her from the sufferings she was undergoing. 

QUESTIONS OF LAW

1. Is withholding or withdrawal of life-sustaining therapies to a person in a permanent vegetative state (PVS) permissible or ‘not unlawful’?
2. Whether a person in a PVS can be withdrawn when there is a probability of that person being in the state till his/her death and at whose instance can it be done?

HELD

• Withdrawal of life support by a doctor is considered as an omission, and it is not a favourable decision to end a life. It is also a criminal offence when it is implemented without the approval of law as it is a form of passive euthanasia.
• The doctors who took care of Aruna day and night for 38 years were considered as the “next friend” of Aruna, and the court declined to accept Virani as the “next friend”. Hence, her petition was dismissed.
• The decision of discontinuing the life support of a person in PVS or otherwise someone who is in a state of being incompetent to take a decision can be taken by parents, spouse or other close relatives or in their absence, a next friend. Even the doctors attending such a patient can take this decision. The decision taken must be bona fide in the best interest of the patient. 
• In order to put the decision of withdrawing the life-sustaining therapies into effect, the approval of the High Court is mandatory. The High Court can approve withholding the life support to an incompetent person under Article 226 of the Constitution.

Submitted By: Shunmalar M

FACTS

The Ministry of Defence in the year 2007 announced tenders for the purchase of 126 fighter aircraft following the established procedure by Defence Procurement Procedure (DPP). The Union said that 108 aircraft would be manufactured by Hindustan Aeronautics Ltd. (HAL) and the rest 18 would be purchased from abroad for which Union selected French company DASSAULT. When everything was almost finalised including the price negotiations the Ministry of Defence in the year 2015 announced that the tender for 126 aircraft had been withdrawn and a new deal was announced by the Prime Minister Narendra Modi and President of France for the purchase of 36 Rafale aircraft instead of 126 fighter aircraft. 

Dassault and the Reliance Group in the year 2016 set forth a joint venture named as Dassault Reliance Aerospace Ltd (DRAL) and all this led to the filing of Public Interest Litigation (hereinafter PIL) by Advocate ML Sharma and lawyer Vineet Dhanda as they claimed that the deal made was not according to the established procedure. 

QUESTION OF LAW

1. Why did the government change its process and suddenly signed an intergovernmental deal? 
2. What happened to the previous deal made with Hindustan Aeronautics Ltd.? 
3. Was the deal made without the approval of Cabinet Committee on Security?
4. ML Sharma claimed that the Rafale is an unexperienced jet and said that matter is not concerned with the price but the procedure. Does the deal suffer from procedural irregularities? 
5. The prices of the second deal are almost doubled off the first. Is there a case of pricing irregularity here? 

HELD

A PIL asking for the technical details of Rafale was also filed which was refused by the Supreme Court of India (hereinafter SC) but SC asked the government to submit the details of the process of Rafale deal. In 2018, the court after hearing both the sides said in its judgement that the deal had no procedural irregularities based on evidence procured and provided by the state in sealed covers. Thereby a review petition on February 2019 was filed challenging the previous judgement given by the court on the same by Yashwant Sinha, Arun Shourie and Prashant Bhushan. The court on 14th November dismissed the review petition and held that it had limited jurisdiction of defence contracts under Article 32 jurisdiction. 

Submitted By: Purvi Raheja

              

Case Name: Bikram Chatterji & Ors. Vs. Union of India & Ors.

Appeal No.: Writ Petition(s) (Civil) No(s).940/2017

Date of Judgment: 21-Aug-18

Court: Supreme Court of India

The case study is a landmark decision of the Hon’ble Supreme Court regarding the real estate industry in India and presumably the most anticipated in the light of the various challenges faced by home-buyers throughout India.

FACTS:

In 2011, Projects of Amrapali group launched the construction of 42000 flats in Noida and Greater Noida and promised that delivery of possession will be made after 36 months. Buyers in 2010 – 2014 signed the buyer’s agreement. Even after payment of 40% consideration, they faced the threat of forfeiture. The agreement contained some terms as to the interest of owners, Clause 14 authorized himself to finance himself from any loans by way of mortgage/charge/security and allottees cannot raise an objection. Clause 15 authorized the builder to keep full authority over flat depriving allottees any lien or interest despite full payment. Clause 19(a) the builder was obliged to complete flats of Centurion Park within 30 months from date of commencement of signing an agreement which may vary more or less than 6 months. Clause 19(c) builder fixed sum of Rs. 5 per square feet per month for a period of delay. Breach of obligation by respondents to deliver flats even within 36 months. They did not pay the amount to the allottees and also the bank. And buyers had to pay the EMI’s to bank thereby causing double loss. 

Some consumers approached NCDRC by filing a consumer complaint. Bank of Baroda filed a company petition in 2017 before the NCLT under Section 7 of Insolvency and Bankruptcy Code, 2016. The NCLT appointed Interim Resolution Professional. The moratorium was also declared thereby under the SARFAESI Act, 2002. The order adversely affected the interest of thousands of homebuyers of various projects being developed by Amrapali.

Meanwhile, a writ petition was also filed in Supreme Court. The apex court after hearing the complaints and in light of the accusations of draining off of funds being made against the Amrapali Group decided to take cognizance of the petition and ordered to conduct a forensic audit over all the agencies of Amrapali Group.

ISSUES:

• The charges levied by officials, banks, home purchasers and development agencies shall be valid.
• The Amrapali Group’s RERA registration may be cancelled.
• Form of relief accessible to homebuyers.

HELD:

Supreme Court held that:

RERA Amrapali Group registration under RERA Act shall be revoked and NBCC (India) Ltd is finalizing various projects.

The separate lease agreements issued for projects under consideration in favour of Amrapali Group Authorities are revoked and all the rights will now be vested in the Court Receiver who has authority to alienate, lease out or take any decision to raise funds. The Court Receiver will pay money raised to NBCC will complete the project with 8% profit margin (senior Adv., Shri R. Venkataramani).

The Authorities and Banks do not have the right to sell the property of the property buyers or the land leased for payment of their dues. They have to receive all their charges from the selling of other assets attached to the Amrapali Group.

The right of the lessee shall be enshrined in the Court Receiver (formerly with the Amrapali Group) and shall, by means of an authorized person on his behalf, conclude a tripartite agreement and perform all other acts as may be necessary and shall also make sure that the title is handed over to the home-buyers and that the possession is handed over to them.

Submitted By: Harshita Gupta

FACTS:

1. The petitioners were the elected members of the 15^th Legislative assembly of Karnataka.
2. Disqualification petition was charged against 4 elected members as they neither took part in a meeting conducted by the party nor participated in the proceedings of the assembly session.
3. All the petitioners submitted their resignation, which the speaker denied to accept.
4. 15 out of 17 petitioners had offered their resignation from the house before the Disqualification petition was made.
5. A member of the parliament has the right to resign, no rule of law prevents him/her from doing so.
6. The members have challenged their dismissal by the speaker but later, after a thorough analysis, it was held that they submitted their resignation voluntarily.
7. Kihoto Hollohan case was a major precedent which was in hand and had more relevance to the current case.
8. The Petitioners stated that the order of the speaker was unacceptable.
9. Disqualification of the petitioners made them not to contest in elections of the remaining duration of 15^th Legislative Assembly of Karnataka.

QUESTION OF LAW:

1. Whether the resignation submitted by the members of the legislative assembly at a time earlier than petitions for their disqualification under 10^th schedule of our Constitution.
2. Article 164, 190, 191,212,361B and 10^th schedule of our Constitution was challenged under this Petition.
3. Disqualification may only one be challenged under Article 226, as this matter involves only statutory rights and whether this Writ Petition challenging the speaker is maintainable under Article 32 of Indian Constitution?
4. Can a speaker reject the resignation made by the members of parliament and is that valid under the directions of our Constitution?
5. If a Speaker has the power to disqualify, for what tenure he can do so or does he have the power to disqualify for the whole-term?
6. Can the members invoke Article 19(1)(g) of the Constitution which states “Right to freedom of Trade & Profession”?
7. Whether to consider the terms “voluntary” & “genuine” under Article 190(3)(b) under Constitution, as it concerns the current matter.
8. Is the current case in hand is similar to the case of Kihoto Hollohan and same judgement has to be given?

HELD:

1. No fundamental Right is violated, therefore the matter won’t fall under the ambit of Article 19(1)(g).
2. 10^th Schedule was brought in to cure the evil of defection recognising the impact on our Democracy.
3. The bench discussed the importance of party politics in a democracy and said that it is to be accepted if members resign for the stability of their opposition as good governance is not possible is the government is unstable.
4. The Supreme Court approved the disqualification petition and also stated that their disqualification for the rest of the tenure is Unconstitutional.
5. It was mentioned that “ Principle of Natural Justice is not a straitjacket formula” while the dismissal of the speaker’s decision to grant 3 days to Members to respond.
6. It was held that both Article 164(1B) and 361B does not deny a person from contesting in the elections.
7. It was explicitly stated that the speaker does not have any power to neither specify the period of disqualification nor deny a person from contesting in elections.
8. The bench also stressed in reconsidering the strengthening aspects of 10^th schedule, which can reduce practices which have taken place in this case and mentioned that speakers act against the constitutional duty of acting neutrally.

Submitted By: Karthi V S

 

FACTS

After conducting a Research study passed by the National Commission of Women on Honor Killings in Haryana, Punjab and Western Uttar Pradesh and reporting that a spate of honour killing has been continuing in the above- mentioned states, the petitioner, an NGO named Shakti Vahini, has filed a Writ Petition under Article 32 of the Constitution seeking directions to the State and Central government to take preventive measures to combat honour crimes, to submit a plan of Action by both, the State and Centre and direct the State Government to set up refuges or cells that can be approachable for the targeted couples. Prayers to issue writ of mandamus to the State Governments have also been made to begin prosecutions for each case of honour killing and take appropriate preventive measures. 

QUESTIONS OF LAW

1. Whether an individual has the right to choose their life partner regardless of any societal pressure? 

2. Whether the activities done by the Panchayat/Khap Panchayats are legal? 

HELD

1. Considering the judgement of the case – Lata Singh vs. State of UP and another, the Supreme Court decided that when two individuals agree to enter into wedlock, the consent of the family or community or clan is not necessary as such consent is a manifestation of their choice which is recognized under Article 19 and 21 of the Indian Constitution. 

2. Informal institutions like Khap Panchayats cannot substitute the regular law courts as no power has been conferred upon them to adjudicate any such matter and if they continue to function they can be held liable under the Indian Penal Code. 

3. The Supreme Court has also given several Preventive Steps, Remedial Measures and Punitive Measures following the judgements in the cases of Lakshmi Kant Pandey vs Union of India, Vishaka and others v State of Rajasthan and 16 others and Prakash Singh and other vs Union of India and 17 others. 

Submitted By: Sneha Asthana

FACTS:

In this case, the petitioner was on trial for adultery under section 497 of the Indian Penal Code, 1860.

The cognizance of this offense was limited, i.e., adultery committed with a married woman, and the male offender alone had been made liable to the punishment. Women were treated as the property of men, and the same can be concluded from the case mentioned above.

The petitioner applied under Article 228 of the Indian constitution, arguing that this section was in contradiction with Article 14 (Right to Equality) and Article 15 of the constitution and was, therefore, ultra vires.

QUESTION OF LAW:

Whether section 497 of the Indian Penal Code violates the fundamental rights guaranteed under the articles:

14 Right to Equality in general

15 Protection against discrimination on the grounds of caste, religion, sex, race, and place of birth by any citizen

HELD:

The court observed that section 497 is not ultra vires under Article 14, 15, and 21 of the constitution on the account that only the man, is held liable for adultery and the wife with whom the adultery is committed. 

The Court in response said that a provision that prohibits punishment is not equivalent to a license to commit that offense of whose punishment has been prohibited.

It further said that sex is a reasonable and sound classification acknowledged by the Constitution, which provides that the state can make special provisions for women and children under Article 15(3) of the Constitution.

The two articles read together validate the questioned clause in section 497of the IPC.

Submitted By: Divya Singh Yadav