Recent Judgements

• Army personnel: Even prior to initiation of proceedings under Armed Forces (Special Powers) Act, 1958, and definitely prior to filing of charge sheet (under criminal laws), it is imperative that sanction is obtained against the army personnel. Further held, such permission from the Central Government would be necessary even when the allegations pertain to fake encounters and cannot be brushed aside on the premise of 'not part of official duty'. General Officer Commanding, Rashtriya Rifles v. Central Bureau of Investigation, (Supreme Court).

• Cheque bouncing: When the cheque was returned as the cheque did not contain the signature of the accused, and was not drawn from his bank account, than no offence made out under Negotiable Instruments Act, 1881. Ashok Dubey v. Badri Prasad Sharma, (HC of MP).

• Fast Track Courts: Even though the policy decision of the Union of India to stop funding of the FTC across the country cannot be interfered with, however, directions issued for (a) creation of 10% additional posts in lower judiciary, (b) provision for absorption of persons working as judges in FTC in the Higher Judicial Services, (c) direction that the States would either continue FTC as permanent aspect or close them down, and not make ad-hoc arrangements, (d) No proposal of the Chief Justice + Chief Minister conference would be interfered at bureaucratic level and only Central/State cabinet could interfere. Brij Mohan Lal v. Union of India, (Supreme Court).

• Foreign Direct Investment: When tax is imposed upon international transactions under the General Anti-Avoidance Rules (GAAR), there is invocation of look-through and limitation of benefits principles. In this context held that: (a) Legitimate avoidance of tax liability is permissible, unless it is colourable device, dubious methods and the like, (b) It is task of revenue to determine whether a transaction is genuine or dubious, (c) In international transactions, this could be determined by ascertaining whether the investment is participative or pre-ordained tax evading transaction, (d) To arrive at the aforesaid conclusion factors such as timing & duration of investment, period of business in India, generation of revenues, exit from aforesaid business and continuity of such business after exit would be relevant, (e) Exit from business by itself would not be sufficient proof when the said exit is under the agreement, (f) To invoke Judicial Anti Avoidance Rules burden is on revenue to prove that it is a sham transaction, and (g) To lift the corporate veil of corporate restructuring, burden is on the revenue. Accordingly held that tax imposed on Hutchinson and Vodafone transaction is bad in law. Vodafone International Holdings BV v. Union of India, (Supreme Court) (3J).

• Haj pilgrimage: Even though haj subsidy is constitutional in nature, however, since it runs contrary to the basic tenets of Islam, directions issued for progressive reduction of haj subsidy in next ten years. Further held, provision made for Goodwill Haj Delegation is unconstitutional, and directed to be discontinued. Union of India v. Rafique Shaikh Bhikan, (Supreme Court).

• Mobile services: Considering the discrepancies in issuance of pre-paid Subscriber Identity Module (SIM) without proper verification of the subscribers as well as pre-activated cards, directions issued for constitution of joint committee of DoT and TRAI and modification of circular dated 14-03-2011 on the basis of such recommendations. Avishek Goenka v. Union of India, (Supreme Court)(3J).

• Possession: When a person was having only a gratuitous possession, he holds the property only on behalf of principal, for example, caretaker, watchman, servant, etc. Accordingly, such persons cannot institute suit for permanent injunction against the principal with respect to protection or recovery of possession. Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira, (2012) 5 SCC 370 (3J).

• Right of Children to Free and Compulsory Education Act, 2009: Even though the reservation for admission in class - I was premised on economic or financial basis, held, to be valid with respect to all government, aided (minority & non-minority) and un-aided non-minority schools as this ensures admission in neighbourhood schools. Accordingly, provision with respect to unaided minority schools being in violation of Article 30(1) held to be ultra-vires. Further held, this enactment is in furtherance of fundamental right of education as envisaged under Article 21-A of Constitution of India. Society for Unaided Private Schools v. Union of India, (2012) 6 SCC 01 (3J).

• Sleep: It is a biological necessity and its deprivation affects a person's health and mental condition. Interference with a person's sleep is therefore a form of third-degree method of torture, which is prohibited by Constitution. Accordingly held, that sleep is a human right, and right to sleep is a fundamental right. In re Ramlila Maidan incident, (Supreme Court).

• Ultra vires: When a particular scheme has been laid down in the judgement of Supreme Court, it cannot be over-ridden by resolution of any association. Further held, in case any person/association is aggrieved by the decision, it shall take recourse of law for review or enactment of statute itself by the Parliament or State legislature. Supreme Court Bar Association v. BD Kaushik, (Supreme Court).