List of Current Affairs

Source: Supreme Court

Why in News?

A bench of Chief Justice of India DY Chandrachud, Justice PS Narsimha and Justice JB Pardiwala held that the Lieutenant Governor (LG) shall not be guided by the aid and advice of the Council of Ministers while nominating the members under Section 3(3)(b)(i) of Delhi Municipal Corporation Act, 1957 (DMC).

• The Supreme Court held this in the case of Government of NCT of Delhi v. Office of Lieutenant Governor of Delhi.

What is the Background of Government of NCT of Delhi v. Office of Lieutenant Governor of Delhi Case?

• In the recent election to DMC Aam Aadmi Party (AAP) won majority and Bharatiya Janata Party (BJP) came second.
• The Municipal Secretary of DMC sent a note countersigned by the Commissioner that LG will nominate ten persons to the Corporation as provided under Section 3(3)(b)(i) of the DMC Act.
• The very next day LG nominated ten members, and it was notified in the Delhi Gazette.
• The instant writ petition was filed challenging the legality and propriety of the nominations by LG.
• The petitioners have requested to quash the notifications by writ of certiorari and direct the LG to nominate the persons in accordance with the Council of Ministers' aid and advice.

What were the Court’s Observations?

• The Court first of all discussed in detail the duties conferred on the LG and the powers and duties entrusted to the Government of National Capital Territory of Delhi (NCTD) by the DMC Act.
• The Court laid down the following two points of law:
  • The statutory power to nominate under Section 3(3)(b)(i) was introduced for the first time by the 1993 Amendment Act. The power to nominate is therefore not a vestige of the past or a power of the Administrator that is continued by default.
  • The ‘text’ of Section 3(3)(b)(i) of DMC Act, 1957 expressly enables the LG to nominate persons having special knowledge. The power seen in the ‘context’ in which it is located confirms that the LG is intended to act as per the mandate and not guided by the aid and advice of the Council of Ministers.
• Thus, the Court held that the notifications issued by the LG under Section 3(3)(b)(i) are not in violation of Article 239AA read with Section 41 of Government of NCT of Delhi.

What is the Legislative History of Delhi Municipal Corporation Act (DMC)?

• It is to be noted that presently the Delhi Municipal Corporation is composed of :

(i) councillors chosen by direct elections from the ward;

(ii) person nominated through nominations (earlier the Act used the expression ‘aldermen’ for them but it was deleted after 1993 amendment).

• The Municipal Administration in Delhi is governed by the DMC Act enacted by the Parliament in 1957.
• Interestingly, there was no provision with respect to aldermen when the bill was introduced but when it was notified Section 13 provided for nomination of aldermen by the councillors.
• Constitution (Sixty Ninth) Amendment Act
  • In 1991 Constitution (Sixty Ninth) Amendment Act came into force which introduced Article 239 AA and Article 239AB in Part VII of the Constitution which led to the constitution of Special assembly for NCT of Delhi with certain special features including redesignation of Administrator as LG.
  • Following this, the Parliament enacted the Government of NCT of Delhi Act, 1991 to give full effect to the constitutional amendment.
• Constitution (Seventy fourth) Amendment Act
  • Part IXA relating to Municipalities came into effect from 1st June 1993.
  • Thus, this amendment granted autonomy to municipal administration, it’s elections, composition etc.
• In order to incorporate the above two amendments, the DMC Act was amended in 1993.
• The 1993 Amendment to DMC Act
  • It recognized five authorities exercising distinct powers and duties:
    • Central Government
    • Government of NCT of Delhi
    • Administrator
    • Corporation
    • The Commissioner
  • This is the amendment that introduced the provision that gives power to the Governor to nominate the Aldermen.

What is the Composition of Corporation under the DMC Act?

• Section 3(3) (b) of DMC Act provides that the Corporation shall be composed of:
  • ten persons, who are not less than 25 years of age and who have special knowledge or experience in municipal administration, to be nominated by the Administrator:

Provided that the persons nominated under this sub-clause shall not have the right to vote in the meetings of the Corporation;

• • members of the House of the People representing constituencies which comprise wholly or partly the area of the Corporation and the members of the Council of States registered as electors within the area of the Corporation.
  • as nearly as possible one-fifth of the members of the Legislative Assembly of the NCT of Delhi representing constituencies which comprise wholly or partly the area of the Corporation to be nominated by the Speaker of that Legislative Assembly, by rotation, every year:

Provided that while nominating such members, by rotation, the Speaker shall ensure that as far as possible all the members are given an opportunity of being represented in the Corporation at least once during the duration of the Corporation;

• • The Chairpersons of the Committees, if any, constituted under sections 39, 40 and 45, if they are not councillors.

What is the Executive and Legislative Relationship Between the Government of NCT of Delhi and the Union Government?

• Legislative Relationship:
  • The Legislative Assembly of NCT of Delhi has power to make laws with respect to “any of the matters” enumerated in State list or Concurrent List (Except Entries 1, 2 and 18 of State list).
  • Notwithstanding the above, Parliament shall have power to make laws (legislative power) for NCT of Delhi with respect to ‘any matter’ in the three lists. This is where the departure from the legislative powers of Parliament with respect to States can be seen.
    • The Parliament has the power to make laws even with respect to matters enumerated in List II for NCT of Delhi.
  • Law made by the Parliament shall prevail over the law made by the Legislature of NCT of Delhi irrespective of which law came earlier. The only exception is when the law made by the Legislative Assembly of NCT of Delhi receives Presidential assent.
  • Once, the Parliament exercises the power to make laws with respect to any matter in List II and List III, the Legislative Assembly of NCT of Delhi is denuded of it is legislative competence to make laws with respect to that subject.
• Executive Relationship
  • The executive power of Government of NCT of Delhi extends to all matters enumerated in List II and List III (Except entries1,2, and 18).
  • Union of India shall have exclusive executive power with respect to matters in Entries 1, 2 and 18 of the State List, which are specifically excluded from the legislative power of NCT of Delhi.
  • The executive power of the Government of NCT of Delhi shall be exercised through the LG who shall act on the aid and advice of Council of Ministers.
    • There is a difference between governor of State under Article 163 of the Constitution of India, 1950 (COI) and the LG.
    • The Governor of the State under Article 163 acts on the aid and advice of Council of Ministers on all matters except when he is by or under the Constitution required to exercise his functions in his discretion.
    • The LG, under Article 239AA (4) is to exercise discretion, ‘in so far as he is, by or under any law, required to act in his discretion’.
      • ‘law’ could be Parliamentary law or law of Legislative Assembly of NCT of Delhi.
  • Once the Parliament makes law on a subject matter over which NCT of Delhi also has legislative power and consequently executive power the powers, duties and obligations of the authorities will be governed by the mandate of the Law made.
    • Therefore, here the statutory provision alone will determine if LG acts on its own accord or on the aid and advice of the Council of Ministers.

How Powers are Distributed Between Union Government and Government of NCT of Delhi?

Source: Madhya Pradesh High Court

Why in News?

Recently, the Madhya Pradesh High Court in the matter of Ajeet Patel and Others v. The State of Madhya Pradesh and Others has held that the accused cannot be granted with the right of Pre audience to determine the process or the authority of his investigation.

What was the Background of the Ajeet Patel and Others v. The State of Madhya Pradesh and Others Case?

• In this case the petitioner filed a writ petition under Article 226 of the Constitution of India (COI).
• The petitioner demanded the issuance of any suitable writ by which the police authorities (Respondents) can be directed to conduct a fair investigation against the petitioners, as per the statutory provisions of law in the interest of justice.

What were the Court’s Observations?

• The Madhya Pradesh High Court by referring the case of Romila Thapar v. Union of India (2018) held that:
  • The accused does not have the right to decide which authority should investigate him as the credibility of the investigation is of great importance and it cannot be compromised by allowing the accused to decide.
  • The present petition holds no room for consideration.
  • Such demand has no legal backing and if permitted would be prejudicial to the process of investigation.
• The Madhya Pradesh High Court therefore dismissed the petition for directing investigation.

What is Pre- Audience?

About:

• The right of pre-audience is given under Section 23 of the Advocates Act, 1961.
• It means the right of being heard before others.
• This right is generally vested with the Advocated enrolled with the Bar Council of India and State Bar Councils.
• There is an order of priority given under Section 23 of the Advocates Act, 1961 itself as:
  • Attorney General: He/she has pre-audience over all other advocates.
  • Solicitor General of India
  • Additional Solicitor General of India
  • Second Additional Solicitor General of India
  • Advocate General of any State
  • Senior Advocates
  • Other Advocates
• The right of pre-audience can also be adjudged as a moral right, which can be related to the years old Indian practice of respecting elders, which is now incorporated into legal practice through the right of pre-audience.

Landmark Judgements:

• Prabal Dogra v. Superintendent of Police, Gwalior and State of Madhya Pradesh (2017): The Court held that accused has no say in the matter of investigation.
• Romila Thapar v. Union of India (2018): The Supreme Court in this case held that the accused has no right to direct the investigation by the authority and the appointment of the investigating authority.

Source: Supreme Court

Why in News?

Justices Dipankar Datta and Prashant Kumar Mishra have issued a new practice direction regarding Special Leave Petitions (SLPs), effective from 20^th August 2024. This direction requires that any SLP seeking exemption from filing a certified copy of an impugned order must include a receipt from the High Court confirming the request for the certified copy, state that the application for the copy is still valid and provide an undertaking to submit the certified copy promptly. This aims to streamline the process and ensure timely submission of necessary documents.

• The Supreme Court held this in the case of Harsh Bhuwalka & Ors v. Sanjay Kumar Bajoria.

What was the Background of Harsh Bhuwalka & Ors v. Sanjay Kumar Bajoria Case?

• The case involves a Supreme Court order issued on 5^th August 2024 regarding the filing of SLPs.
• The order arose from a case where petitioners made a false statement to the Supreme Court about applying for a certified copy of an impugned High Court order.
• The petitioners claimed that they had applied for the certified copy but had not received it from the High Court.
• The petitioners had never applied for the certified copy before filing their SLP.
• The petitioners only applied for the certified copy after filing the SLP and after the Supreme Court requested proof of their application.
• This case highlighted a broader issue of litigants frequently filing SLPs without proper certified copies of impugned judgments/orders.
• Many litigants were submitting applications for exemption from filing certified copies, often with false or misleading statements.
• The Supreme Court noted that its lenient approach to such exemptions had led to a belief among litigants that they could make false statements without consequences.
• This situation prompted the Supreme Court to issue new practice directions regarding the filing of SLPs and applications for exemption from submitting certified copies.

What were the Court’s Observations?

• The Court observed with dismay that the provisions of the Supreme Court Rules, 2013, requiring Special Leave Petitions to be accompanied by certified copies of impugned judgments and orders, were being observed more in breach than in compliance.
• The Court noted that its hitherto lenient approach towards applications for exemption from filing certified copies had engendered a sense among litigants that they could make false statements with impunity, necessitating the inculcation of greater discipline in the filing process.
• The circumstances prompted the Supreme Court to issue new practice directions governing the filing of SLPs and applications for exemption from submitting certified copies, with a view to ensuring substantial compliance with the extant rules.
• The Court expressed concern that litigants, perceiving the Court's leniency, often failed to apply for and obtain certified copies, instead annexing downloaded copies of impugned judgments and orders to their Special Leave Petitions.
• The Court remarked that the prevalent practice of accepting exemption applications without proper verification had led to a situation where litigants were rarely required to furnish undertakings for subsequent filing of certified copies upon receipt from the High Court.
• The Court concluded that the persistence of such a situation was untenable, and that substantial compliance with the rules was imperative so long as they remained in force.
• The Court observed that despite existing rules requiring certified copies with SLPs, these rules were often not followed or enforced.

What is a Special Leave Petition?

About:

• A Special Leave Petition is a discretionary appeal mechanism to the Supreme Court of India.
• It is provided for under Article 136 of the Constitution of India, 1950 (COI).
• SLPs can be filed against any judgment, decree, or order of any court or tribunal in India, except those relating to Armed Forces.
• It allows the Supreme Court to hear appeals against decisions where no direct right of appeal exists.
• The power to grant special leave is entirely at the discretion of the Supreme Court.
• SLPs can be filed in both civil and criminal matters.
• They are typically filed when there's a substantial question of law or a perceived miscarriage of justice.
• The Supreme Court can refuse to grant leave without providing reasons.
• If leave is granted, the petition is converted into an appeal.
• SLPs serve as a final recourse for seeking justice after exhausting other legal remedies.
• In the case of any SLP, the Supreme Court has first to decide in its discretion whether it should grant or deny the requested Special Leave.
• The Supreme Court had also argued that the remedy under Article 136 (Special Leave Petition) is a constitutional right. Thus, the bar can be overcome through the possible routes under Articles 32, 131, and 136 of the Constitution.
  • Article 32 provides for constitutional remedies to get the rights protected through writs namely Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo warranto.
  • Article 131 (Original jurisdiction of the Supreme Court) is about Centre-State or inter-State disputes in general.

Origin of SLP:

• The phrase "special leave to appeal" in Article 136(1) of the Indian Constitution originates from the Government of India Act, 1935.
• The 1935 Act used the term "special leave" in five instances, primarily in Sections 110, 205, 206, and 208.
• Section 110(b)(iii) prohibited legislative bodies from making laws that infringed on His Majesty's prerogative to grant special leave to appeal, except where expressly provided.
• Section 205(2) allowed parties to appeal to the Federal Court on grounds of wrongly decided substantial questions of law, without needing special leave from His Majesty-in-Council.
• The same section prohibited direct appeals to His Majesty-in-Council (Judicial Committee of the Privy Council), with or without special leave.
• Section 206(1)(b) empowered the Federal Legislature to allow appeals to the Federal Court in certain civil cases, subject to the Federal Court granting special leave.
• Section 206(2) allowed for the abolition of direct appeals to His Majesty-in-Council if provisions under 206(1) were enacted.
• Section 208 dealt with appeals to His Majesty-in-Council, allowing appeals without leave in certain original jurisdiction cases, and with leave of the Federal Court or His Majesty-in-Council in other cases.
• The leave granted by the Judicial Committee of the Privy Council was called "special leave".
• This historical context from the 1935 Act formed the basis for the concept of special leave in the Indian Constitution.

Filing of an SLP:

• Special Leave Petitions (SLPs) may be filed under Article 136 of the Indian Constitution against any judgment, decree, or order issued by a High Court or tribunal within Indian territory.

Time Period:

• SLPs can be filed within 90 days from the date of a High Court judgment, or within 60 days against a High Court order refusing to grant a certificate of fitness for appeal to the Supreme Court.

Who can make SLP?

• Any aggrieved party may file an SLP against a judgment or order refusing to grant a certificate for appeal to the Supreme Court.
• SLPs can be filed for any civil, criminal, or other matter where a significant legal issue exists or a serious injustice has occurred.
• The petitioner must provide a concise summary of the case facts, issues, and timeline, along with legal arguments challenging the verdict.
• Upon filing, the petitioner will have an opportunity to present their case before the Supreme Court.
• Based on the merits, the Court may issue notice to the opposing party, who must submit a counter-affidavit.
• The Supreme Court will then decide whether to grant leave or not.
• If leave is granted, the case is converted into a civil appeal and will be heard again before the Supreme Court.
• The SLP mechanism provides a special permit for aggrieved parties to appeal against any court or tribunal order within Indian territory to the Supreme Court.

Grounds of SLP:

• Grounds for Filing: While there are no specific grounds mentioned in the Constitution, generally SLPs are filed on grounds such as:
  • Substantial question of law
  • Gross miscarriage of justice
  • Violation of principles of natural justice
  • Violation of fundamental rights

Procedure of SLP:

• A Special Leave Petition (SLP) must contain all relevant facts upon which the Supreme Court is to base its decision, pertaining to the grounds for filing the SLP.
• The petition must be duly signed by an Advocate-on-Record, as per the Supreme Court Rules.
• The petitioner must include a statement within the SLP affirming that no other petition regarding the same matter has been filed in any High Court.
• Upon filing of the petition, the Supreme Court shall grant a hearing to the aggrieved party.
• Based on the merits of the case, the Court may, at its discretion, allow the opposite party to present their case through a counter affidavit.
• After the hearing, the Court shall determine if the case warrants further consideration.
• If the Court deems the case fit for further hearing, it shall grant leave to appeal.
• In the event the Court finds insufficient grounds for further consideration, it shall reject the appeal.
• The decision to grant or reject the SLP rests solely on the discretion of the Supreme Court, based on the facts presented and arguments made during the initial hearing.
• The procedure for SLP filing and consideration is designed to allow the Supreme Court to exercise its extraordinary jurisdiction under Article 136 of the Constitution judiciously.

Legal Provision:

• Article 136 of the COI deals with special leave to appeal by the Supreme Court.
• It states that
  • (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
  • (2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

Case Laws

• In Laxmi & Co. v. Anand R. Deshpande (1972), the Supreme Court held that when hearing appeals under Article 136 of the Constitution, the Court may consider subsequent developments to expedite proceedings, protect the rights of parties, and advance the interests of justice.
• The Kerala State v. Kunhayammed (2000), ruling established that the Court's discretion to grant Special Leave Petitions (SLPs) does not invoke its appellate jurisdiction if the Court declines to grant leave based on its findings.
• Pritam Singh v. The State (1950) established that the Supreme Court should not interfere with High Court decisions except in exceptional circumstances. Upon admission of an appeal, the appellant may challenge any erroneous legal determinations by the High Court. The Court should apply uniform criteria when granting special leave to appeal.
• N. Suriyakala v. A. Mohandoss & Ors. (2007) affirmed that Article 136 of the Constitution does not establish an ordinary court of appeal. It confers broad discretionary powers on the Supreme Court to intervene for meeting the ends of justice, rather than conferring a right of appeal on litigating parties.