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Legal Fortnight March 2021 Edition, Volume

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1 FOREWORD More has been said about the writing of lawyers and judges than of any other group, except, of course, poets and novelists. The difference is that while the latter has usually been admired for their writing, the public has almost always damned lawyers and judges for theirs. If this state of affairs has changed in recent times, it is only in that many lawyers and judges have now joined the rest of the world is complaining about the quality of legal prose. My best wishes to all these student contributors, for their future endeavors. My best wishes and assurance to the readers that this will add a lot to the knowledge after reading this perfect case compilation. It’s not just for the legal fraternity but for anyone who has an interest in the field of law. By Vrinda Khanna & Nandini Mangla 2 PREFACE All India Legal Forum is replenished with information to give students a ready reference to the various areas of legal issues and news. All India Legal Forum is a team of more than 400 law students across the country to tackle basic problems which a legal researcher faces in day to day life, putting forward the basic things needed for researching and drafting. The All India Legal forum strives at providing a valuable contribution to contemporary legal issues and development. The organization seeks to bring out a platform to provide resourceful insights on law-related topics for the ever-growing legal fraternity. All India Legal Forum doesn't just publish blogs but also guides the authors. Determination and dedication are considered as ultimate requisition to be a good researcher by the All India Legal Forum, it also thrives to instill the values. The reason behind the smoothed running of All India Legal Forum is the official structure of the organization in which different rules are allotted by considering the strengths of the students and giving them roles accordingly through various Boards and Committees incorporated in the Organisation. The Legal Fort Night subdues about the current legal issues and news happening around. It consists of the summaries of the Supreme Court and High Court Judgements of the 14 days. The Legal Fort Night Team keeps compiling the judgments of the Supreme Court and high court regularly. The Legal Fort Night not only compiles the judgments of the Supreme Court and High Court, but it also deals with the static law. We’re glad to be a part of the All India Forum. Here’s an introduction to my team: Patron- in-Chief: Aayush Akar Editor-in-Chief: Shubhank Suman Senior Manager: Vrinda Khanna, Nandini Mangla External manager - Deepti Internal Manager - Sakshi Researchers: • Hatia • Aini Borah 3 • Aditya srivastav • S. Sureka • Muskan Katyayan • ANMOL SONI • Rohan Zaveri • Mayank Kulshrestha • Pallavi Sarkar • Lubna Siddique • Nandita Singh Editors: • Somesh Saxena • Abhavya Rabra 4 INDEX SUPREME COURT JUDGEMENTS..............................................................6-48 HIGH COURT JUDGEMENTS...................................................................49-116 NEWS…………………………………………………………………...….117-124 ARTICLES...................................................................................................125-292 5 SUPREME COURT JUDGEMENTS SUPREME COURT SAYS EXPRESSING VIEWS DIFFERENT FROM GOVT OPINION CANNOT BE TERMED SEDITIOUS The Bench said that expressing views that are different from the Government's opinion will not be seditious. The Supreme Court on Wednesday dismissed a plea by imposing a cost of Rs 50,000 on a petitioner who had moved Court against former Jammu and Kashmir Chief Minister Farooq Abdullah for making a statement on the scrapping of Article 370 while stating that expression of views which are dissent and different from the opinion of the Government cannot be termed seditious. The Supreme Court imposed the fine after the petitioner failed to substantiate his allegations against the National Conference leader Farooq Abdullah that he sought the help of China and Pakistan against India on Article 370. The Apex Court said the expression of opinions that are different from the opinion of the Government cannot be called seditious. 6 A two-judge bench headed by Justice Sanjay Kishan Kaul and Justice Hemant Gupta was hearing the PIL filed by Rajat Sharma seeking directions to the Centre and Union Territory of Jammu and Kashmir to take action against Farooq Abdullah. SC RULING BACKS TAXPAYERS IN SOFTWARE ROYALTY CASE The judgement will impact hundreds of firms that import software for sale in India. The Supreme Court on Tuesday ruled that payments made by an Indian resident to a foreign company for import of computer software for sale in India will not be assessed as "royalty". An SC bench, headed by Justice Rohinton F. Nariman, held that such offshore payments for software "will not give rise to any income taxable in India" and, therefore, no liability would accrue for the resident firms to deduct TDS under Section 195 of the Income Tax Act. The Bench, which comprised Justices Hemant Gupta and B.R. Gavai, clarified that the ruling will apply to all instances of software purchases directly by an Indian end-user from a foreign supplier or manufacturer, when the resident Indian companies act as distributors or resellers for other residents; or when a foreign distributor resells to Indian users and the software is installed on the device by a foreign supplier for Indian residents. The judgment, which involved approximately ₹500 crore in tax revenue, will impact companies like IBM India Ltd, Samsung Electronics Co. Ltd, Hewlett Packard India, Mphasis Ltd, Sonata Software Ltd and GE India. It will also be relevant for over 100 firms that import software for sale in India since the payments made by them will now constitute "business income" in the hands of the recipient and in the absence of a permanent establishment of such recipient in India, no tax is required to be withheld at source. The dispute began after the Karnataka high court in 2011 decided in favour of the tax department, holding that payments to non-resident firms for purchase of software should be treated as royalty, obligating the resident companies to deduct TDS at the time of credit of such sum or at the time of 7 payment, whichever is earlier. However, other high courts and the income tax tribunal took divergent views, calling upon the SC to examine the question of law and settle it. Before the top Court, the tax department had contended that the sale of copyrighted software should constitute as a grant of an interest in their copyright under the Copyright Act, necessitating the deduction of tax at source. The companies, on the other hand, emphasized that these transactions were in the nature of sale and no part of copyright was transacted since the non-resident continued to have proprietary rights in the software. Accepting the companies' submissions, the SC bench held that the amount paid by them to the foreign software suppliers did not amount to royalty, as a result of which, there was no liability to deduct TDS. It underlined that the sales did not attract the rigours of the Copyright Act because no right to reproduce was given to the resident firms and, hence, such payments could not come under the ambit of "royalty". End note https://www.barandbench.com/news/litigation/karnataka-high-court-asks-state-whether-insurance- scheme-for-advocates-can-be-introduced https://www.barandbench.com/news/litigation/sedition-disagree-govt-view-supreme-court-dismisses-pil- action-farooq-abdullah-views-article-370 https://www.indialegallive.com/top-news-of-the-day/news/delhi-court-raps-media-for-leaking-exact- chargesheet-contents-even-before-it-was-taken-cognizance-of/ www.indialegallive.com https://www.livelaw.in/ https://www.livemint.com/news/india/sc-ruling-backs-taxpayers-in-software-royalty-case- 11614706932939.html 8 APPOINT CBI DIRECTOR AS PER LAW: PIL FILED IN SUPREME COURT A PIL was filed against the appointment of an "interim/acting CBI Director" by orders of the Central Government. The Petitioner states that the appointment of a CBI director shall only be done as per the statutory law as it is necessary for upholding the rule of law and the rights of the citizens under Article 14 and 21 of the Constitution of India. The Petitioner further elaborated that the Government is bound to appoint the CBI Director according to Section 4A of the Delhi Special Police Establishment Act,1946. Section 4A provides that for appointment of the CBI Director, the central Government shall constitute a committee which would then provide recommendations on the basis of which the Government shall appoint the Director. The committee, to be constituted under this section, shall consist of the "Central Vigilance Commissioner Chairperson; Vigilance Commissioners members; Secretary to the Government of India in-charge of the Ministry of Home Affairs in the Central Government Member; the Secretary to the Government of India in-charge of the Ministry or Department of the Central Government having administrative control of the Delhi Special Police Establishment" as a Member. The sub-section 2 mandates the committee to take into consideration the 'view' of the outgoing Director. Sub-Section 3 elucidates on the essentials/preferable attributes in a person/officer which should be recommended; the Committee should recommend a panel of officers on the basis of "seniority, integrity and experience in the investigation of anti-corruption cases; and chosen from amongst officers belonging to the Indian Police Service constituted under the All-India Services Act, 1951 (61 of 1951), for being considered for appointment as the Director". 9 The Petitioner said that contrary to the above mentioned procedure, the Central Government has instead appointed an interim/acting Director vide order dated 3rd February, 2021. The petition states that as CBI is the "premier investigation agency of the country" and it investigates corruption related offences in connection with the Governments, such appointment could potentially have adverse impact on the integrity and functioning of the Agency.
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