SCC Online Weekly Rewind Vol. 1 Episode 18

18th episode of SCC Online Weekly Rewind featuring Nilufer Bhateja, Associate Editor bringing you the most important and interesting stories from the field of law is out now! Check out the link below.

Supreme Court

1. Does merely residing in the same house make in-laws accomplice in a dowry death case? The Supreme Court answered this question and opined that the Courts below had failed to consider the evidences available on the standard of “beyond reasonable doubt” The Bench stated, “Conviction of the appellants was not maintainable on a probability,in absence of direct evidence. The benefit of doubt, ought to have been given, to the appellants.” https://www.scconline.com/blog/post/2021/07/08/explained-does-merely-residing-in-the-same-house-makes-in-laws-accomplice-in-a-dowry-death-case/  
2. Does Limitation Act, 1963 apply to arbitration proceedings under Section 18(3) of Micro, Small and Medium Enterprises Development Act, 2006? The Supreme Court while dealing with a question, relating to the maintability of counter claims in abritration proceedings, held that the Micro, Small and Medium Enterprises Development Act, 2006, being a special Statute, will have an overriding effect in relation to Arbitration and Conciliation Act, 1996, which is a general Act. Hence, even if there is an agreement between the parties for resolution of disputes by arbitration, if a seller is covered by Micro, Small and Medium Enterprises Development Act, 2006, the seller can certainly approach the competent authority to make its claim. Further, if the counter-claim made by the buyer in the proceedings arising out of claims made by the seller is not allowed, it may lead to parallel proceedings before the various fora. The Court, held, “When there is a provision for filing counter-claim and set-off which is expressly inserted in Section 23 of the 1996 Act, there is no reason for curtailing the right of the respondent for making counter-claim or set-off in proceedings before the Facilitation Council.” https://www.scconline.com/blog/post/2021/07/08/explained-does-limitation-act-1963-apply-to-arbitration-proceedings-under-section-183-of-micro-small-and-medium-enterprises-development-act-2006/   
3. Govt must reserve posts for promotions for persons with disabilities even under 1995 PwD Act; explore other methods to avoid stagnation: Supreme Court–  Dealing with the issue relating to the right of promotion under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the bench of Sanjay Kishan Kaul and R. Subhash Reddy, JJ has held that a person with disability should be considered for promotion along with other persons working in the feeder cadre. The Court explained that the mandate of Section 32 of the 1995 Act enjoins the government to identify posts that can be filled up with persons with disability. Thus, even posts in promotional cadre have to be identified for Persons with disability  and such posts have to be reserved for PwD. The identification of such posts is no doubt a prerequisite for reservation in promotion for PwD. “There cannot be methodology used to defeat the reservation in promotion. Once that post is identified, the logical conclusion would be that it would be reserved for PwD who have been promoted. The absence of rules to provide for reservation in promotion would not defeat the rights of PwD to a reservation in promotion as it flows from the legislation.” https://www.scconline.com/blog/post/2021/07/03/govt-must-reserve-posts-for-promotions-for-persons-with-disabilities-even-under-1995-pwd-act-explore-other-methods-to-avoid-stagnation-supreme-court/  

High Courts

1. Madras High Court: Police protection for a member of LGBTQIA+ Community on having apprehensions of honour killing on receiving threats from family: A member of LGBTQIA+ community approached the Madras HC seeking police protection as she had apprehension of being subjected to honour killing. The Court allowed her prayer in light of guidelines issued in S. Sushma v. Commr. of Police. https://www.scconline.com/blog/post/2021/07/08/lgbtqia-community/ 
2. Gauhati High Court: Is using of National Flag as a table cloth Sedition? HC grants bail to the woman accused of willfully dishonouring the National Flag : Gauhati High Court addressed a case wherein a woman was booked under Sections 120B/124A IPC and Section 2 of the Prevention of Insult to National Honour Act, 1971 and had been in custody as she had used the Indian National Flag as a table cloth on the occasion of the Eid festival when a picture of hers having lunch on that dining table with some guests went viral on social media. Court accepting the defence that the said incident was an unintentional mistake, asked the petitioner to exercise more care and caution in future and directed for her release. https://www.scconline.com/blog/post/2021/07/05/national-flag/ 
3. Kerala High Court:  HC steps forward as the flag bearer of Animal rights.:  While giving tribute to the hapless dog that succumbed to acts of human cruelty, Kerala HC directed the registry to rename the petition as In Re: Bruno (Suo Moto Public Interest Litigation Proceedings initiated by the High Court in the matter of executive and legislative inaction of the State Government in the matter of Protection of Animal Rights). The High COurt took suo motu cognizance on noting the instances of animal cruelty being reported.  Court remarked that,“Frighteningly, frequent have been the instances of cruelty to animals reported in the media in the last couple of years that we believe that the State must now resort to affirmative action to alleviate their misery. https://www.scconline.com/blog/post/2021/07/03/ker-hc-in-re-bruno-hc-steps-forward-as-the-flag-bearer-of-animal-rights-directions-issued-to-state-to-adopt-proactive-approach-towards-animal-welfare/ 

Lower Courts

1. Court of the Principal Sessions Judge, Kulgam: Anti Vaxxers need to be treated strenuously with an iron hand; Such haters do not deserve concession of anticipatory bail, their free movement and free speech is a threat to society at large: In light of allegations of instigating and provoking local inhabitants against the Revenue Team for COVID-19 Vaccination Drive and further diverting the general public from vaccination to other unnecessary issues an FIR was filed against the accused under Sections 188, 269, 353 IPC.  District Court while observing that,  It is very unfortunate that while on one hand, the govt. is making painstaking efforts to ensure the safety of the people against the deadly virus by vaccination drives, the rumour mongers like the petitioner are acting as stumbling block in this lofty endeavor of the government.”  The Court Denied anticipatory bail to the accused for obstructing the vaccination drive and spreading rumours against the vaccination. https://www.scconline.com/blog/post/2021/07/06/anticipatory-bail-4/ 

Tribunal 

1. CESTAT: “Convenience fee” charged by PVR for online booking of movie tickets under OIDAR category under S. 65(105) (zh) of Finance Act taxable or not? Tribunal explains In a very interesting decision –  CESTAT addressed the issue of taxability of “convenience fee” charged by PVR Limited on its customers for online booking of movie tickets under the category of “online information and database access retrieval system” defined under section 65 (75) of the Finance Act and taxable under section 65 (105)(zh) of the Finance Act. Tribunal referred to the Terms & Conditions for purchase of a movie ticket and held that when a user accesses and uses the website he agrees to be bound by the terms and conditions.  Further, Commission observed that conjoint reading of the clauses of the Terms & Conditions of the contract would indicate that the purpose for charging convenience fee is to receive a consideration for offering a facility of online booking https://www.scconline.com/blog/post/2021/07/09/convenience-fee/ 

International Court

1. European Court of Human Rights : Victims of human trafficking working as gardeners in cannabis factory. Can they be prosecuted for such a criminal offence? ECHR’s momentous ruling – In a momentous ruling, ECHR has held that victims of human trafficking cannot be punished wherein they were being prosecuted for criminal offences connected to their work in the cannabis factories as gardeners. The Court remarked that it is well established that trafficking in human beings falls within the scope of article 4 of the Convention, which prohibits slavery, servitude and forced or compulsory labour. Further laid down the positive obligations that Article 4 imposes. Concluding its decision ECHR held that State failed in its duty under Article 4 of the Convention to take operational measures to protect the victims of trafficking. https://www.scconline.com/blog/post/2021/07/09/victims-of-human-trafficking/ 

Legislation

1. New rules regarding procedure for making regulations under the International Financial Services Centres Authority, introduced: New Rules have been introduced, by the International Financial Services Centres Authority, for making regulations under the International Financial Services Authority.  However, these regulations shall not be applicable to regulations made by the Authority in respect of organisational matters. https://www.scconline.com/blog/post/2021/07/08/new-rules-regarding-procedure-for-making-regulations-under-the-international-financial-services-centres-authority-introduced/ 
2. New Rule for computation of short -term capital gains and written down value, introduced  The Central Board of Direct Taxes has introduced a new rule, for computation of short-term capital gains, and written down value, under section 50 of Income Tax Act, where depreciation on goodwill has been obtained.  https://www.scconline.com/blog/post/2021/07/08/income-tax-amendment-19th-amendment-rules-2021/  
3. CBIC waives off the amount of penalty payable by any registered person under Section 125 of CGST Act, 2017: The Central Board of Indirect Taxes and Customs has waived off  the penalty payable by any registered person under Section 125 of Central Goods and Service Tax Act, 2017 for the non-compliance of  previous Notification between the period of December 1, 2020 to September 30, 2021. https://www.scconline.com/blog/post/2021/07/03/govt-must-reserve-posts-for-promotions-for-persons-with-disabilities-even-under-1995-pwd-act-explore-other-methods-to-avoid-stagnation-supreme-court/  
4. Retail and Wholesale trades included under MSME: The Minister of MSME and Road Transport and Highways has announced revised guidelines for MSMEs. The guidelines have included Retail and Wholesale trades as MSMEs and aims to benefit 2.5 Crore Retail and Wholesale Traders. Under the revised guidelines, the retail and wholesale trade will also get benefit of priority sector lending under RBI guidelineshttps://www.scconline.com/blog/post/2021/07/03/govt-must-reserve-posts-for-promotions-for-persons-with-disabilities-even-under-1995-pwd-act-explore-other-methods-to-avoid-stagnation-supreme-court/