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--------------- Print Magazine --------------
  May 2016
  April 2016

NATIONAL FLAG: Violation of Norms

The National Flag is both a benediction and a beckoning. Thus, in case a person shows any kind of disrespect to the National Flag or does not observe the terms contained in the Code, legal action may be taken against him under the relevant statutory provisions.

A writ petition has been filed making grievance that Yog Guru Baba Ramdev, Shri Anna Hazare, Mrs. Kiran Bedi and others, have on several occasions insulted the National Flag and violated the norms of waving of National Flag, as provided in the Flag Code 2002. The petitioner has sought relief that a sum of ` 10,00,00,000 (Rupees Ten Crore) be recovered from Baba Ramdev for misusing National Flag for gaining undue mileage benefiting his commercial ends (yoga business) as well as the political gain drive during agitations and that Shri Anna Hazare and others be directed to pay a sum of rupees Ten Crores to the Prime Minister's Relief Fund for using/misusing National Flag for gaining the political mileage during agitations, and further to issue direction to the Central Government to revise the Flag Code of India, 2002.

The Flag Code is divided into three parts. Part II provides for the mode and manner of hoisting/displaying/use of National Flag by Members of Public, Private Organisations, Educational Institutions etc . The Supreme Court held that there was no restriction on the display of National Flag by members of general public, private organizations and educational institutions etc . except to the extent provided in the Emblems and Names (Prevention of Improper Use) Act, 1950 and Prevention of Insults to National Honour Act. It has been held that Flag Code is not the law within the meaning of Article 13(3)(a) of the Constitution of India. However, right to fly National Flag is a fundamental right. Further the Flag Code provides guidelines to be observed for preservation of dignity and respect to the National Flag.

The Supreme Court has dismissed the writ petition holding that such a factual controversy cannot be examined in a petition under Article 32 of the Constitution of India.

V.K. Naswa v. Home Secretary, Union of India , Writ Petition (C) No. 533 of 2011; Decided on 9-1-2012 (SC) [Dr. B.S. Chauhan and Swatanter Kumar, JJ.]


On cancellation of the 'Caste Certificates' issued to the petitioners on the basis of the report of the Caste Scrutiny Committee, the Supreme Court has directed that whatever advantage the three petitioners may have derived on the basis of their 'Caste Certificates', shall not be disturbed and the cancellation of their respective 'Caste Certificates' will not deprive them of the benefits which they have already enjoyed. However, as directed, the petitioners will not be entitled to take any further advantage of reservation in future, either for studies or for employment.

In the instant case, the 'Caste Certificates' granted to the petitioners on 7 th June, 2001, by the competent authorities were invalidated by the Caste Scrutiny Committee by its orders dated 4 th September, 2009 and 24 th September, 2009. On challenge, the Supreme Court held 'even if we were to accept the findings of the Caste Scrutiny Committee, we cannot ignore the various circumstances that have intervened between the issuance of the 'Caste Certificates' and the cancellation thereof.' In fact, reference was made to the Caste Scrutiny Committee in 2009, i.e. nine years after the certificates had been issued, and there was no proper explanation for such delay. The petitioners had been allowed by the respondents to continue in service. The other two petitioners have continued their studies after having obtained certain benefits from their 'caste certificates'.

Dattu v. State of Maharashtra , SLP (C) No. 3314 of 2010; Decided on 7-12-2011 (SC) [Altamas Kabir, Surinder Singh Nijjar and J. Chelameswar, JJ.]

CRIMINAL LAW: Handcuffing an Accused

The Supreme Court has awarded compensation while holding that there was no warrant for putting the appellant under handcuffs and that his handcuffing was without justification and it had not only adversely affected his dignity as a human being but had also led to unfortunate and tragic consequence.

The appellant was engaged in running a coaching centre where students were given tuition to prepare them for entrance tests for different professional courses. On June 8, 1992, it was reported to the Collector that the appellant had asked some of the students to pay him ` 50,000 for giving them the question papers for the pre-medical test in three subjects. A trap was set up and a raid was conducted at the house of the appellant. The appellant was arrested and he was brought to the police station in handcuffs and his photographs in handcuffs appeared in the local newspapers. On seeing his photograph in handcuffs his elder sister, who loved him like a son, was so shocked that she expired on June 17, 1992. While facing the trial, the appellant filed a complaint alleging that the Collector and other Government functionaries, named as accused in the complaint had committed offences punishable under sections 395, 468 and 469 read with section 34, Indian Penal Code. The Magistrate dismissed appellant's complaint for want of sanction.

The appellant's claim for compensation for illegal handcuffing was allowed. The compensation of ` 70,000 as awarded by the High Court has been enhanced to ` 2,00,000.

Hardeep Singh v. State of MP , Crl. A. No. 2250 of 2011; Decided on 5-12-2011 (SC) [Aftab Alam and Ranjana Prakash Desai, JJ.]

MOTOR VEHICLES: Registration Plates

Despite the orders of the Supreme Court dated 30 th August, 2011 and 13 th October, 2011, the majority of the States have not fully implemented the scheme regulating issuance and fixation of High Security Registration Plates (HSRP). From the affidavits filed on behalf of the respective States, it is clear that they have not been vigilant enough to take appropriate steps for initiation and completion of the HSRP scheme and, in any case, not with required expeditiousness. Some of the States have not even been courteous enough to file affidavits of compliance. The Supreme Court has observed that in the interest of justice and to ensure proper implementation of the judgments and directions of the Supreme Court, as contained in its various orders, in regard to manufacturing and affixation of the HSRP, it has been directed that it will be in the fitness of things and even the judicial proprietary would demand that no High Court should pass any interim orders cancelling or staying the tender process in relation to implementation of the scheme.

Maninderjit Singh Bitta v. Union of India , W.P. (C) No. 510 of 2005; Decided on 8-12-2011 (SC): 2011 (13) SCALE 359 [S.H. Kapadia, CJI, A.K. Patnaik and Swatanter Kumar, JJ.]

NOIDA: Misuse of Residential Premises

It is not merely at the discretion of the Development Authority concerned to designate user of a site and then alter the same without following due process of law. The Development Authority is to act in adherence to the provisions of the law regulating such user or construction. The Development Authority, therefore, cannot transgress its powers as stipulated in law and act in a discriminatory manner. Permitting mixed user, where the Master Plan does not so provide, would be glaring example of arbitrariness into the action of the authorities. Establishment of banks and nursing homes in the residential sectors meant for residential use alone is held as an unequivocal violation of the statutory provisions in the Master Plan. No power is vested in New Okhla Industrial Development Authority to permit such user and ignore the misuse for such a long period.

The Supreme Court has directed that the 21 banks and nursing homes, which are operating in any residential sector, shall close their activity forthwith and the Development Authority shall consider the request for allotment of alternative spaces to the banks.

R.K. Mittal v. State of U.P. , C.A. No. 6962 of 2005 etc.; Decided on 5-12-2011 (SC) [Swatanter Kumar and Ranjana Prakash Desai, JJ.]

EDUCATION: Unrecognised Institutions

Mushroom growth of ill-equipped, under staffed and un-recognised educational institutions had been noticed by the Supreme Court in State of Maharashtra v. Vikas Sahebrao , (1992) 4 SCC 435. The Court has observed that the field of education has become a fertile, perennial and profitable business with the least capital outlay in some States and that societies and individuals are establishing such institutions without complying with the statutory requirements. As held, despite repeated pronouncements of the Supreme Court over the past two decades deprecating the setting up of such institutions, the mushrooming of the colleges continues all over the country at times in complicity with the statutory authorities, who fail to check this process by effectively enforcing the provisions of the National Council for Teachers Education Act, 1993 and the Regulations framed thereunder.

In the instant case, the institution established by the appellant has been inspected more than once and several deficiencies that seriously affect its capacity to impart quality education and training to future teachers have been specifically pointed out. The institution was lacking in essential infrastructural facilities which clearly justified withdrawal of the recognition earlier granted to it.

Shri Morvi Sarvajanik Kelavni Mandal Sanchalit MSKM B.Ed. College v. National Council for Teachers' Education , C.A. No. 11215 of 2011; Decided on 16-12-2011 (SC) [Dr. B.S. Chauhan and T.S. Thakur, JJ.]

LL.M. (Medalist)

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