GOVERNMENT CONTRACTS: Blacklisting
The decision of State or its instrumentalities not to deal with certain persons or class of persons on account of the undesirability of entering into contractual relationship with such persons is called blacklisting. State can decline to enter into a contractual relationship with a person or a class of persons for a legitimate purpose. The authority of State to blacklist a person is a necessary concomitant to the executive power of the State to carry on the trade or the business and making of contracts for any purpose, etc. There need not be any statutory grant of such power. The only legal limitation upon the exercise of such an authority is that State is to act fairly and rationally without in any way being arbitrary, thereby such a decision can be taken for some legitimate purpose. What is the legitimate purpose that is sought to be achieved by the State in a given case can vary depending upon various factors. The failure to mention in the bid documents that blacklisting would be one of the probable actions that could be taken against the delinquent bidder does not, by itself, disable the authorities from blacklisting a delinquent bidder, if it is otherwise justified. Such power is inherent in every person legally capable of entering into contracts.
M/s. Patel Engineering Limited v. Union of India, 2012 (5) SCALE 374; Decided on 11-5-2012 (SC)
MEDICAL ADMISSIONS: Favouritism and Arbitrariness
The admission to MBBS and BDS courses, whether at State level or All India level has ever been a matter of concern for the courts. The present case is one example of violation of procedure and admissions being arbitrary. As held, admissions based on favouritism necessarily breach the rule of merit on the one hand, while on the other, they create frustration in the minds of the students who have attained higher rank in the competitive entrance examinations, but have not been admitted.
The schedules prescribed have the force of law. It is difficult to comprehend that any authority can have the discretion to alter these schedules to suit a given situation, whether such authority is the Medical Council of India, the Government of India, State Government, University or the selection bodies constituted at the college level for allotment of seats by way of counselling. None of these authorities are vested with the power of relaxing, varying or disturbing the time schedule, or the procedures of admission. Every effort has to be made by all concerned to ensure that the admissions are given on merit and after due publicity and not in a manner which is ex-facie arbitrary and casts the shadow of favouritism.
Priya Gupta v. State of Chhattisgarh, C.A. No. 4318 of 2012; Decided on 8-5-2012 (SC) [A.K. Patnaik and Swatanter Kumar, JJ.]
DOWRY DEATH: Sentence of Life Imprisonment
When the offence of section 304B, Indian Penal Code, is proved, the manner in which the offence has been committed is found to be brutal, it had been committed for satisfaction of dowry demands, particularly, for material goods like television and cooler and furthermore the accused takes up a false defence before the court to claim that it was a case of an accidental death and not that of dowry death, then the court normally would not exercise its judicial discretion in favour of the accused by awarding lesser sentence than life imprisonment.
In the instant case, there was persistent demand of dowry by the accused persons (husband of deceased, his brother and his mother) and they had killed her by sprinkling kerosene on her and putting her on fire. Deceased died an unnatural death within seven years of her marriage. Merely because the letters of deceased on record did not specifically mention the dowry demands, it was held that it would not give any benefit of doubt to the accused. The letters clearly narrated the beatings given to the deceased, the cruelties inflicted on her and reference to the conduct of the family. Such letters could not be ignored.
Rajesh Bhatnagar v. State of Uttarakhand, Crl. A. No. 851 of 2010; Decided on 10-5-2012 (SC): 2012 (5) SCALE 311.
HUMAN RIGHTS COMMISSION: Removal of Chairperson
A perusal of section 5(2) of the Protection of Human Rights Act, reveals the procedure for removal of a Chairperson/Member of the Commission. It is apparent from the procedure contemplated under section 5(2) of the Act, that on being satisfied, the President of India shall require an enquiry to be conducted by the Supreme Court. The President of India while discharging her duties, is to be guided by the Council of Ministers. Accordingly in terms of the mandate of section 5(2) of the Act, if a decision is to be taken to hold an enquiry against an incumbent Chairperson/Member of the Commission, the President of India would require the advice of the Council of Ministers. It is only thereafter, if a prima facie case is found to be made out, that the President of India on being satisfied, may require the Supreme Court to initiate an enquiry into the allegations, under section 5(2) of the Act.
In the instant case, a prayer has been made for the issuance of a writ in the nature of Mandamus requiring the President of India to make a reference to the Supreme Court, for holding an enquiry against Mr. Justice K.G. Balakrishnan, the present Chairman of the Commission. Dismissing the writ petition, the Supreme Court held that the first step contemplated under section 5(2) of the Act is the satisfaction of the President of India. It is only upon the satisfaction of the President, that a reference can be made to the Supreme Court for holding an enquiry.
Common Cause v. Union of India, W.P. (C) No. 35 of 2012; Decided on 10-5-2012 (SC) [B.S. Chauhan and Jagdish Singh Khehar, JJ.]
CRIMINAL LAW: Conduct of Witnesses
When an eye witness behaves in a manner that perhaps would be unusual, it is not for the prosecution or the Court to go into the question as to why he reacted in such a manner. As observed by the Apex Court, there is no fixed pattern of reaction of an eye witness to a crime. When faced with what is termed as “an unusual reaction” of an eyewitness, the Court must only examine whether the prosecution story is in anyway affected by such reaction. If the answer is in the negative, then such reaction is irrelevant.
Kathi Bharat Vajsur v. State of Gujarat, Crl. A. No. 1042 of 2002; Decided on 8-5-2012 (SC) [H.L. Dattu and Anil R. Dave, JJ.]
CHILD CUSTODY: Two Sons
The husband and wife have been living separately since 10-4-2007, and have been involved in various litigation since then. From the wedlock, two sons were born, who are approximately 15 and 9 years old. The appellant father, who is an IAS officer, stationed at Jammu had sought custody of the children. By an order of the High Court, appellant father was allowed custody of the elder son while the mother was permitted to have custody of the younger son. There was also an admission by the mother that she would not be able to adequately handle the educational needs of the elder son. The High Court also recorded a finding to the effect that both the children appeared to be very happy in the company of each other as there was a strong bonding between them.
Upon speaking to the children personally, the Supreme Court also found that they were indeed very much attached to each other. Looking to the overall peculiar circumstances of the case, the Apex Court has held that both the children should be with the father. The appellant father who is a member of Indian Administrative Service is a well groomed person, and with the help of his father, who was also a Professor, will be able to take very good care of the children.
Shaleen Kabra v. Shiwani Kabra, C. A. No. 4308 of 2012; Decided on 8-5-2012 (SC) [D.K. Jain and Anil R. Dave, JJ.]
NOIDA: Nursing Homes in Residential Areas
By judgment and order dated 5-12-2011, the Supreme Court issued directions that banking or nursing homes or any other commercial activity is not permitted in sector 19 or any other residential sector. By an order dated 23-1-2012, further directions were issued permitting the doctors to use 25 per cent of the permissible FAR of any floor in their premises in the residential sector only for running personal clinic in its restricted sense.
Some applications have been filed by the doctors, who were running nursing homes in the residential areas with a prayer that they should be provided alternate land/ premises by NOIDA, as it has been done in the case of banks. The NOIDA has given precedence under their previous schemes for allotment, to such applicants who are running homes of more than 10 beds and less than 30 beds. They shall be given land/premises at reasonable rates as may be determined by the competent authority in NOIDA. However, individual doctors would not be entitled to any benefit under the Scheme that the NOIDA will declare under this order. It has been directed that no doctor would be permitted to run a polyclinic or a nursing home in the garb of a clinic.
Chairman & Chief Ex. Officer, NOIDA v. Mange Ram Sharma, 2012 (5) SCALE 180; Decided on 4-5-2012 (SC).
AARUSHI MURDER CASE: Review Petition
A double murder was committed on the night intervening 15-/16-5-2008. On having found the body of the deceased girl in her bedroom, her father got a first information report registered and the State handed over the investigation to the Central Bureau of Investigation. The informant, father of deceased girl was arrested on 23-5-2008 and he was eventually released on bail on 11-7-2008. Having investigated into the matter for a considerable length of time, the CBI submitted a closure report on 29-12-2010 indicating the absence of sufficient evidence to prove the alleged offences against the accused, father of deceased girl, beyond reasonable doubt. In response to the notice issued by the Special Judicial Magistrate the informant, father of deceased girl submitted a detailed protest petition wherein he objected to the closure report which was rejected by the Magistrate. Instead, having taken cognizance, the Magistrate summoned father and mother of deceased girl for committing the murder of their daughter and domestic help, as also, for tampering with the evidence. Criminal appeal filed against the order was dismissed by the Supreme Court on 6-1-2012. This review petition has been filed by mother of deceased girl. Dismissing the petition, the Supreme Court has held that the very filing of the instant Review Petition, was wholly uncalled for. The Apex Court seriously cautioned the petitioner while observing that frivolous litigation takes up a large chunk of precious court time.
Nupur Talwar v. Central Bureau of Investigation, Review Petition (Crl.) No. 85 of 2012; Decided on 7-6-2012 (SC) [A.K. Patnaik and Jagdish Singh Khehar, JJ.]