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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
LATEST SUPREME COURT JUDGEMENTS
 

FEMALE FOETICIDE

As observed civilization of a country is known by how it respects its women. It is the requisite of the present day that people are made aware that it is obligatory to treat the women with respect and dignity so that humanism in its conceptual essentiality remains alive.

Indian society's discrimination towards female child still exists due to various reasons which has its roots in the social behaviour and prejudices against the female child and, due to the evils of the dowry system, still prevailing in the society. The decline in the female child ratio all over the country leads to an irresistible conclusion that the practice of eliminating female foetus by the use of pre-natal diagnostic techniques is widely prevalent in the country. The provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition on Sex Selection) Act, 1994, a welfare legislation, are not properly and effectively being implemented. Mushrooming of various Sonography Centres, Genetic Clinics, Genetic Counselling Centres, Genetic Laboratories, Ultrasonic Clinics, Imaging Centres in almost all parts of the country calls for more vigil and attention by the authorities under the Act. But, unfortunately, their functioning is not being properly monitored or supervised by the authorities under the Act to find out whether they are misusing the pre-natal diagnostic techniques for determination of sex of foetus leading to foeticide. The Supreme Court has issued directions for proper implementation of the Act, regard being had to the signification of the issue, the magnitude of the problem in praesenti and the colossal cataclysm that can visit this country in future.

Voluntary Health Association of Punjab v. Union of India , 2013 (3) SCALE 195; Decided on 4-3-2013 (SC) [K.S. Radhakrishnan and Dipak Misra, JJ.]

DRUGS AND COSMETICS: Ingredients of Non-Vegetarian or Vegetarian Origin

The Drugs and Cosmetics Act, 1940 or the rules framed thereunder do not mandate mentioning or displaying symbol of ingredients of non-vegetarian or vegetarian origin. The manufacturer or others are not required to mention 'vegetarian' or 'non-vegetarian' on the label of drugs or cosmetics. A citizen has the right to expression and receive information but such right can be limited by reasonable restriction under the law. It is imperative for the State to ensure the availability of the right to the citizens to receive information but such information can be given to the extent it is available and possible.

In the present case the Union of India had taken a plea that information relating to the ingredients of drug particularly those ingredients of non-vegetarian origin should not be given 'in the interest of general public'. A specific plea has been taken that it is not possible to distinguish the drugs whether these are life saving or otherwise. In the given circumstances the condition of a patient may be such that a drug which is ordinarily not treated as a life saving drug may be essential to save the life. In such a case when drug becomes a life saving drug, it may not be desirable for the patient or his attendant to know the origin of the ingredients of the drug i.e. whether 'vegetarian' or 'non-vegetarian'. Such option cannot be left on the patient or his attendant if required to save the life or eradicate a disease.

Indian Soaps and Toiletries Makers Association v. Ozair Husain , 2013 (3) SCALE 251; Decided on 7-3-2013 (SC)

ITALIAN MARINES: Shooting of Indian Fishermen

An Italian vessel, with the Military Protection Detachment on Board, was heading for Djibouti on 15 th February, 2012 when it came across an Indian fishing vessel, St. Antony, which it allegedly mistook to be a pirate vessel, at a distance of about 20.5 nautical miles from the Indian sea coast off the State of Kerala, and on account of firing from the Italian vessel two persons in the Indian fishing vessel were killed. After the said incident, the Italian vessel continued on its scheduled course to Djibouti but it was made to return to Cochin Port. Upon docking in Cochin, the Master of the vessel was informed that First Information Report had been lodged under section 302 read with section 34 of the Indian Penal Code in respect of the firing incident leading to the death of the two fishermen. The two petitioners deployed as Italian Military Navy Contingent on Italian vessel were arrested by the Kerala Police and have been in judicial custody ever since.

The petitioners filed writ petition praying for a declaration that their arrest and detention and all proceedings taken against them were without jurisdiction. By an order dated 18 th January, 2013, this court permitted the two petitioners to travel to Italy for a period of four weeks under the supervision, custody and control of the Ambassador of Italy to India, and thereafter to return to India within the said period. Another application has now been made for further permission to petitioners to travel to Italy for the purpose of casting their votes in the election scheduled on 24 th and 25 th February, 2013. An additional affidavit had been filed by the Ambassador of Italy in India, indicating that under the Italian law, the petitioners are not entitled to cast the votes in their present circumstance, and that they have to travel to Italy for the said purpose. The Supreme Court has permitted the two petitioners to leave India and to remain in the Republic of Italy for a period of four weeks from the date of departure from India. While holding that the State of Kerala has no jurisdiction to investigate into the incident, the Supreme Court has stated that till such time as it is proved that the provisions of Article 100 of the UNCLOS 1982 apply to the facts of this case, it is the Union of India which has jurisdiction to proceed with the investigation and trial of the petitioners. The Union of India is, therefore, directed, in consultation with the Chief Justice of India, to set up a Special Court to try this case.

Republic of Italy v. Union of India , 2013 (1) SCALE 462 (SC) : WP (C) No. 135 of 2012; Decided on 18-1-2013 (SC) [Altamas Kabir, CJI and J. Chelameswar, JJ.]; Massimilano Latorre v. Union of India , 2013 (3) SCALE 13: IA4 of 2013 in SLP (C) No. 20370 of 2012 (SC) [Altamas Kabir, CJI, Anil R. Dave and Vikramajit Sen, JJ.]; Decided on 22-2-2013.

LAND ACQUISITION: Urgency Provisions

Eminent domain is the right or power of a sovereign State to appropriate the private property within the territorial sovereignty to public uses or purposes. It is an attribute of sovereignty and essential to the sovereign government. The sovereign is entitled to re-assert its dominion over any portion of the soil of the State, including private property without its owner's consent provided that such assertion is on account of public exigency and for public good. The strong arm of the government is not meant to be used nor it should be used against a citizen in appropriating the property against his consent without giving him right to file objections as incorporated under section 5A of the Land Acquisition Act on any ostensible ground.

In the instant case, the preliminary notification under section 4 was issued on 1-5-1980. After lapse of about 7 years on 19-3-1987, the State Government issued declaration under section 6 without complying with the mandate of section 5-A as it had invoked its powers conferred under section 17(1) read with section 17(4) of the Act. The Supreme Court has held that the exercise of power by the State Government could not be legally sustained.

Laxman Lal (Dead) Through LRs v. State of Rajasthan , C.A. No. 6392 of 2003; Decided on 1-3-2013 (SC) [R.M. Lodha and J. Chelameswar, JJ.]

CRIMINAL TRIAL: Absence of Counsel

It has not been laid down as a ratio that in each circumstance, the High Court should appoint a counsel failing which the judgment rendered by it would be liable to be set aside. The principles that can be culled out are (i) that the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; (ii) that the court is not bound to adjourn the matter if both the appellant or his counsel/ lawyer are absent; (iii) that the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so; (iv) that it can dispose of the appeal after persuing the record and judgment of the trial court; (v) that if the accused is in jail and cannot, on its own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused appellant if his lawyer is present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and (vi) that if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation.

K.S. Panduranga v. State of Karnataka , Crl. No. 373 of 2013; Decided on 1-3-2013 (SC) [K.S. Radhakrishnan and Dipak Misra, JJ.]

RITA ARYAN
LL.M. (Medalist)

 
 
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