Daily Legal Updates for Law Exams: 22nd January 2022

1. Attorney General Grants Consent To Initiate Contempt Proceedings Against Yati Narsinghanand For Remarks Against Supreme Court

• The Attorney General for India KK Venugopal has granted consent to initiate contempt proceedings against the 'Dharam Sansad' leader Yati Narsinghanand over his recent 'derogatory remarks' against the Constitution and the Supreme Court of India.

• The consent has been granted in response to a letter by an activist Shachi Nelli seeking to initiate contempt against Yati Narsinghanand for his statements in an interview that went viral on the social media platform Twitter on the 14th of January.

• According to AG, the statements made by Yati Narsinganand would certainly amount to contempt of the Supreme Court of India.

• The Attorney General while giving his consent has stated that the statement made by Yati Narsinganand, that "Those who believe in this system, in these politicians, in the Supreme Court, and in the Army will all die the death of a dog" is a direct attempt to lower the authority of the Supreme Court in the minds of the general public.

• The AG has therefore granted consent to initiate proceedings for criminal contempt of the Supreme Court of India in terms of Section 15 of the Contempt of Courts Act, 1971 read with Rule 3(a) of the Rules to Regulate Proceedings for Contempt of the Supreme Court of India, 1975.

• Narsinghanad is at present under custody after his arrest by the Uttarakhand police over his anti-Muslim hate speeches at the Haridwar Dharam Sansad.

• According to the letter, the comments made by Yati Narsinghanand are trying to undermine the majesty of the institution and the authority vested in the Supreme Court of India, and is a vile and clear attempt at interfering in the course of justice by means of abusive rhetoric and baseless attacks on the integrity of the Constitution and the Courts.

• "Any such attempt to harm the majesty of the institution and diminish the faith that citizens of India have in the Court can result in complete chaos and anarchy. This is perhaps the most vicious attack on the Supreme Court in its history", the letter states

• It has been further stated that to permit these remarks to pass unaddressed will be to allow this attempt of lowering the authority of the apex court to succeed, if not wholly then in considerable measure.

• "The Supreme Court of India is the first interpreter and the guardian of the Constitution of India. It is appalling to see the lack of faith and sheer contempt being expressed towards the fundamental frameworks of this country. The intent to undermine the Court and its capacity to dispense justice is evident", the letter states.

Source: Bar & Bench

2. Marital Rape - Expectation Of Sexual Relations Cannot Lead To Husband Having Forcible Sex With Wife: Rebecca John To Delhi High Court

• The Delhi High Court continued hearing a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape.

• Senior Advocate Rebecca John appearing as amicus curiae in the matter told a bench of Justice Rajiv Shakdher and Justice C Hari Shankar that expectation of sexual relations in a marriage cannot lead to a husband having forcible sex with his wife.

• Adding that both the parties in a marriage may have expectations of conjugal relations, however, John argued that such expectation cannot result in the husband having forcible sex with wife.

• "This is not about expectation. This is about the man exercising his dominant right over his wife despite the wife saying I cannot and will not do it with you," John argued.

• This came after Justice C Hari Shankar said that there is a qualitative difference between sexual equation which exists between parties who are married and the ones which are not married.

• He said that while the parties who are married may have a right to expect sexual relations, there is no such right with the parties who are not married.

• In this context, Justice Shankar added that given such a right, if the legislature decided not to equate the two situations owing to the difference within which parties were placed, can the Court examining the constitutionality of exception 2 say that there is no such difference in the situations.

• Let us not call it a right. Let's call it an expectation," Justice Shankar said at the outset.

• To this, John responded "Expectation is not wrong. Both sides can have expectation. However, the expectation cannot result in the husband having forcible sex with wife."

• John also answered the questions put forth by the Bench during the previous course of hearings. Answering one such question as to what would be the state of the impugned exception if Section 375 of the Code was a gender neutral provision, John submitted thus:

• I would like to suggest that gender-neutral exception would create a false equivalence to suggest that in reality husbands and wives are equal, disregarding the lived experiences of women as wives."

• John further gave example of various provisions in different statutes which specifically focused on the victim being a female including the Domestic Violence Act, sec. 498 A and 302B of Indian Penal Code, Sec. 113B of Indian Evidence Act and Sexual Harassment of Women at Workplace Act.

• She submitted that the scheme of IPC, CrPC and Indian Evidence Act has been amended by the legislature putting the woman in the centre of the provision, keeping in mind the procedural and evidentiary safeguards that must be given when a complaint is filed by her.

Source: Bar & Bench

3. Statement In Advertisement Contrary To Service Regulations Won't Create Right In Favour Of Applicants: Supreme Court

• The Supreme Court has held that in the event of a conflict between a statement in an advertisement and service regulations, the latter shall prevail. The Court added that an erroneous advertisement would not create a right in favour of applicants who act on such representation.

• The Court further held that "regulations framed by statutory authorities have the force of enacted law and in the event of a conflict between an executive instruction, an office of memorandum in this case and statutory regulations, the latter prevails."

• A two-judge bench comprising Justice DY Chandrachud and Justice AS Bopanna, while dealing with a case pertaining to a DACP (Dynamic Assured Career Progression) scheme contravening with the provisions of ESIC Recruitment Regulations, has held that ESIC Recruitment Regulations 2008 and 2015 have statutory effect as per S.97(3) of the ESI Act and thus, as per settled law, the regulations which have been framed by statutory authorities shall override the scheme since there can be no estoppel against regulations that have statutory backing.

• After analysing the rival submissions made, the Court first looked at S. 17(2)(a) of the ESIC Act, 1948 (which speaks of method of recruitment, salary and allowances) and S.97 of the ESI Act (which talks about power of corporation to make regulations) and after referring to its judgments in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, Pepsu Road Transport Corporation, Patiala v. Mangal Singh & Ors., and Sant Ram Sharma v. State of Rajasthan, among others, concluded that both the ESIC Regulations 2008 and 2015 have statutory effect as per S.97(3) of the ESI Act considering the preamble to ESIC Recruitment Regulations, 2015 clearly stipulated that the prior approval of Central Government, as mandated by S. 17(2) of the ESI Act was duly sought.

• The Court further held that "regulations framed by statutory authorities have the force of enacted law and in the event of a conflict between an executive instruction, an office of memorandum in this case and statutory regulations, the latter prevail."

• The Court also clarified that the DACP scheme which had seemingly facilitated promotion from Assistant Professor to Associate Professor on completion of two years of service as an Assistant professor shall not be applicable to the contesting respondents because of pre- existence of ESIC Regulations having statutory backing which shall override the DACP Scheme.

• The apex court further averred, after referring to judgments in Malik Mazhar Sultan v. UP Public Service Commission, that "an erroneous advertisement would not create a right in favour of applicants who act on such representation." Regarding the respondents' contention that the advertisements had implied applicability of DACP Scheme even before the 2015 regulations came into effect, the Court held that "a subsequent amendment to recruitment regulations would override the conditions prescribed in the advertisement."

• The advertisements issued by the appellant mentioned that the DACP Scheme would be applicable for its recruits. However, it is a settled principle of service jurisprudence that in the event of a conflict between a statement in an advertisement and service regulations, the latter shall prevail.

Source: Bar & Bench