the CourtroomHigh Court penalizes student forwrongly taking reservation benefitJane Maria TomyFactsIn this case, the court was posed with a question to strike down the reservation benefits offered to thepetitioner, an OBC student, from the non-creamy layer category. The student had managed to submit fakeNon-Creamy Layer Certificates to obtain the benefits of reservation. She is currently studying for MBBS inBJ Medical College, Pune. The father of the petitioner in fact runs a Hospital in Pune and the value of thebuilding is around one crore per se.Issues1. Whether it is the gross income or the taxable income that must be considered for reservation?2. Whether the petitioner shall be entitled to continue her education in MBBS which she had secured through the benefit of reservation?JudgmentIn the first issue, the court categorically stated that it is the gross income of the father/mother of a studentthat shall be considered for the reservation and the same shall not extend beyond 4.5 lakhs. Nevertheless,the father as mentioned in the facts, was a very well-placed surgeon who is running his own hospital inPune and his income was well beyond 4.5 lakhs. Therefore, the court upheld the cancellation of the Non-Creamy Layer Certificate by the Collector of Pune.With regarding to the second issue, the court referred to a lot of precedents and finally held that the peti-tioner shall be liable to continue the benefits of reservation which is already granted to her. But, the reser-vation benefits cannot be availed in the future alone. For reaching this conclusion, the court referred to thecases listed below -1. Dattu Namdeo Thakur v. State of Maharashtra - 2012 1 SCC 5492. Sandip Subhash Parate v. State of Maharashtra - 2006 6 Bom.C.R. 556 - The court highlighted the doctrine of proportionality followed in this case.3. State of Maharashtra v. Milind - (2001) 1 SCC 4 – This case was having similar facts. It was also regarding the cancellation of reservation of a doctor.Finally, the court summarized the ratio of all these decisions in the following words -“However, annulment of the admission of the present petitioner may not have any fruitful results. The ben-efit of that seat now cannot be offered to a genuine OBC candidate even if the admission of the petitioneris annulled. On the contrary, if the admission of the petitioner is annulled, it will lead to depriving theservices of a doctor to the society on whom public money had already been spent.”Thus, the petitioner was allowed to pursue her education and obtain the degree in MBBS. A retroactiveannulment of the reservation benefits was not favoured by the court. Instead, the court held that the peti-tioner, from now onwards, shall not be entitled to any benefits of the OBC Reservation.Learning OutcomeThis case was extremely significant as it highlighted the injustice caused to the backward communities perse when the students of the creamy layer was availing the reservation benefits. Page 51
Libertatem Magazine - Edition 29 Delhi High Court brings back the Moderation in CBSE Board Jane Maria Tomy Facts The CBSE Board through a board meeting conducted on 24th April, 2017 decided to scrap the policy of moderation adopted for the evaluation of answer scripts. The policy of moderation provides for elimi- nating the arbitrariness caused due to the examination of answer sheets by different examiners. It might happen that some examiners might be liberal and some may be stricter. Also, some optional subjects might be easier to score and some others would be difficult. To rule out such differences in the final marks, the policy of moderation stipulates that a sample marking scheme should be distributed among the examiners. In that, provision for grace marks may be awarded for difficult questions or questions with errors. Thereafter, even after they mark, the head examiners would scrutinize random papers checked by every examiner and would double-check to see whether the examin- ers had corrected the papers according to sample papers. The head examiners had the discretion to require the examiners to give extra grace marks if the answer scripts have been evaluated strictly. Essentially, mod- eration helps in the preventing the students in getting additional marks and prevents failing in the exams. But, this policy has been scraped out in a meeting and the students came to know about it only through the media. The CBSE Board did not even care to give an official pronouncement regarding this matter. Also, by the time the Board have taken this decision, the evaluation of the answer sheets had already started and the examiners were following this policy of moderation from 2016 to evaluate the scripts. Issues The issue that was raised before the Delhi High Court was whether the sudden change in the policy with- out any notice and with a retrospective action be allowed to take place? Would it result in an irreparable injury to the students and should an interim relief be ordered to curb this decision? Judgment The court, firstly, condemned the CBSE Board for implementing the change without any proper notice. In the words of the Honourable Court, itself :- “We are deeply concerned with the manner in which the change of policy has been effected without notice to students, Universities etc., which may completely change the course of academic future of the students, especially in Delhi where there is no State Board” The result of this change was that the students of the State Boards would have an upper hand as the policy of moderation is followed there. Thereafter, it also took into notice as to how it would diminish the chanc- es of students from getting admissions into the Universities including the foreign universities. The court observed that :- “It cannot be denied that the change in the evaluation policy, that is, denial of moderation may have drastic conse- quences for the admission offers, which large number of Class XII students who have taken the CBSE courses and examination would suffer. Neither the said foreign universities nor the students were aware that there would be a change in the policy of the CBSE. We are also informed that many students may have also made arrangement of stu- dent loans and may have effected payments of large sums to these foreign universities. Grave and irreparable financial loss would also ensure to these students and their families. If the students are unable to fulfill the conditions imposed by foreign universities owing to the changes in the moderation policy, then it would have a devastating impact on their educational prospects” Thus, the court provided interim relief against the Board’s move to scrap the moderation policy as it was found to be unfair and irresponsible. Learning Outcome The board exams would be evaluated on the basis of the moderation policy for the year 2017.Page 52
the CourtroomICJ on the Kulbhushan Jadhav’s CaseJane Maria TomyFactsMr. Kulbhushan Sudhir Jadhav was arrested by Pakistan and been in Pakistan’s custody since 3rd March,2016. India had requested consular access many a times to Pakistan. But, without granting any access, Pa-kistan’s Court Martial sentenced Jadhav to death on 10th April, 2017 for espionage, sabotage and terrorism.Against this injustice, India alleged violation of the Vienna Convention on Consular Access of 24 April,1963 in the International Court of Justice.Issues1. Whether the International Court of Justice has prima facie jurisdiction under Article I of the Optional Protocol?2. Whether the sentence of the Court Martial of the Pakistan is in defiance of the Article 36 of the Vienna Convention on Consular Access?3. Can the court order for provisional measures for preventing the execution of Mr. Jadhav?JudgmentWith regarding to the issue of maintainability, the court held that it was sufficient if the case can primafacie fall within the scope of Article 36 of the Vienna Convention. The Article 36 deals with the rights ofthe countries to get consular access. Under the Article I of the Optional Protocol, the International Courtof Justice have jurisdiction when a case concerning the interpretation and the applicability of the ViennaConvention is brought up. Therefore, the court denied Pakistan’s objections towards the maintainabilityand upheld its jurisdiction.Thereafter, Pakistan argued that Article 36 of the Vienna Convention does not apply to cases of espionage,sabotage and terrorism. The court rejected this argument by stating that no legal analysis has been givenregarding that by either parties. The court found that the rights invoked by India are plausible.The court, then, turned towards the possibility for ordering provisional measures. There requires an irrepa-rable prejudice and urgency for ordering provisional measures into a given case. Pakistan argued that therewas no urgency. Jadhav had the legal option to apply for the clemency within 150 days. Therefore, thenormal legal procedures of the Pakistan’s system itself can be sought to delay and re-examine the trial. But,the court rejected this argument too.The court held that there is a risk of irreparable prejudice to India by the mere fact that as long as Mr.Jadhav is under the death sentence, he can be executed by Pakistan at any moment. Therefore, the court or-dered Pakistan to take all such measures to prevent the execution of Mr. Jadhav till the present proceedingsended and also, inform the court about the measures taken.Learning OutcomeIndia was able to successfully stall the execution of Mr. Kulbhushan Sudhir Jadhav. Page 53
Libertatem Magazine - Edition 29 SC finds Justice Karnan guilty of Contempt Jane Maria Tomy Has the Supreme Court got so worked over a judge? Well, that’s happening for the first time in India. The judge of Calcutta High Court, Justice CS Karnan was issued a contempt order by the seven judge bench of the Supreme Court. The facts leading to this order is as follows. Justice CS Karnan was appointed as the additional judge in Madras High Court in 2009. Everything started from 2011. In 2011, Karnan called a press conference for accusing a fellow judge of the High court of caste discrimination. He stated that the judge deliberately touched him with his foot and discriminated him so. The next even happened in 2015. He interrupted the argument which was going on in a courtroom in the Madras High Court on judicial appointments. He demanded the court to hear him. Again, in April 2015, he began a suo motu contempt proceedings against the CJ of the Madras High Court, Sanjay Kishan Kaul. The reason that he stated was that the CJ was purposefully harassing and discriminating him as a lower caste and that is why, he has been giving him “insignificant and dummy” portfolios. The Supreme Court inter- fered into the matter and stayed these proceeding. In February 2016, Karnan accused the CJ of Madras High Court of corruption but there was no evidence to back these allegations. Hence, the apex court transferred him to Calcutta High Court but Justice Karnan issued a stay order on the transfer order of the apex court itself. Thereafter, when the two-judge bench tried to lift the stay order, he asked the Chennai police to book a case against them under SC/ST Atrocities Act. The apex court, finally, threatened to issue contempt notice against him. Immediately, he withdrew his statements and justified it by saying that his mental balance was severely affected by the events. Recently, he sent a list of judges’ name, retired and sitting judges, to the Prime Minister stating that he wanted an interrogation of them on grounds of corruption. Further, he sparked off a debate with a fellow judge in the Calcutta High Court in an open court over the granting of bail to the accused in Kolkata Fly- over case. All these led to a seven-judge bench of the apex court to issue a contempt proceedings against Justice CS Karnan. It is interesting to note that even after holding him guilty, Justice CS Karnan is trying to evade the law by not surrendering to the police.Page 54
the CourtroomThe Case of Stolen Audio Tapes andan Arnab GoswamiJane Maria TomyFactsTimes Now have filed a complaint against the Arnab Goswami for misusing the intellectual property ofTies Now. Arnab Goswami’s Republic TV had broadcasted a super-exclusive program on Sunanda Push-kar’s murder case. The Times Now, who was his previous employer, alleged that Arnab Goswami hadprocured and used the audio tapes of Sunanda Pushkar’s murder case and Lalu Prasad controversy whichwas with the Times Now and had played it in his Republic TV’s debate show.In the audio tapes, a conversation between the ex-journalist of Times Now, Prem Sridevi and SunandaPushkar and her domestic aid Narayan was recorded. It was the argument of Times Now that these audiotapes were accessed by Arnab Goswami during his employment with Times Now. The BCCI also said thatthe tapes were recorded before the resignation of Arnab Goswami from the Times Now Group. The peti-tioners also made an allegation that Goswami was purposefully withholding the broadcasting of the tapewhile in employment with the Times Now so that he can now earn more fame and kickstart his career withRepublic TV.IssuesThe suit was filed on criminal grounds alleging breach of employment contract and misusing of intellectualproperty rights of Times Now.JudgmentThe court observed that the Times Now group had failed to give substantial evidence that they had ownedthe intellectual property rights on the audio tape. But, the question that was of most importance waswhether Arnab Goswami had indulged in the infringement of the intellectual property rights of the TimesNow Group.The court in its order stated:“It is well settled law that an employee has to maintain confidentiality and utmost fidelity towards hisemployer. Accordingly, the defendants can be restrained from breaching the contract — reproducing or mis-using the confidential information of the plaintiff and using or telecasting the same as that would amountto infringement of the plaintiff ’s rights.”The case, having been filed in Delhi High Court, the court have issued an order to the defendants – ArnabGoswami and others – to submit written statements and to appear for the hearing. The Republic TV hasbeen alleged to have broadcasted stolen audio tapes from Times Now Group.Learning OutcomeThus, it is important to note that the employees shall not vitiate their employment contract by taking outthe information and sources from their previous employer maintained during their employment with him. Page 55
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