2023 ഏപ്രിൽ 24, തിങ്കളാഴ്ച
Pending Bills, the issue of gubernatorial inaction P.D.T. Achary
Governors should not sit over Bills: SC
2023 ഏപ്രിൽ 20, വ്യാഴാഴ്ച
Supreme Court Pending Payment Of MNRGA Workers Bank Accounts Linking With Adhaar Central Government Swaraj Abhiyan
The Supreme Court on Tuesday required the UOI to file its response on the 2021 plea contending that the pending wages of workers under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (MNREGA) are piling up along with negative balances in funds of most of the states
The Court required a copy of the application to be made available with the offices of ASG K. M. Nataraj, recording that he may seek instructions and file a response
The bench of Justices Ajay Rastogi and Ahsanuddin Amanullah was hearing an IA filed in the 2015 PIL by Swaraj Abhiyan for redressal of the situation of MGNREGA workers which was disposed off in May, 2018
Advocate Prashant Bhushan, for the applicants, told the bench, "More than several thousand crores, Rs.13,000 crores of payments are pending, payments have been due under MGNREGA to the workers, crores of workers"
Justice Rastogi: "What is your basis?"
Mr. Bhushan: "This is not disputed....The Act says that one person in every rural household has to be given hundred days of guaranteed employment. The Act further provides that the employment has to be provided within 15 days of making the demand, failing which they have to pay unemployment allowance. And if the payments are delayed beyond 15 days of their having worked, then compensation for delayed payment. Now what is happening is that, despite the various directions given by this court already in this matter that adequate budget has to be placed so that people are able to get employment under this Act, payment has to be made within time, that unemployment allowance has to be given etc, today the situation is that from their own website, it can be seen that more than 10,000 crores of payment is still pending. In West Bengal alone- I am just giving one example of one state- More than 2000 crores of wages are pending for the last 15,16 months. They are not being paid"
Justice Rastogi: "Has the state government made the demand?"
Mr. Bhushan: "State governments have made demand but the central committee is not releasing"
Justice Rastogi: "Are we supposed to regulate this interrelationship between the central government and state governments, why budget is not released, something released, partially released?"
Mr. Bhushan: "We have come on the behalf of workers who have already worked but have not been paid even for 15 months. Those who want to work are not being given work by the government saying that 'look, we have no funds so we can’t give you any work' even though the act entitles them to get minimum hundred days of work in a year. It is a demand-driven regime"
Justice Rastogi: "You can’t get wages of hundred days sitting at your home. It is unemployment"
Mr. Bhushan: "That is why the act says that if you demand work, at least one person in every rural family has to be given hundred days of work. But when I go and demand work, the government says 'there is no money in the scheme and that is why we can't give you work'. That is one of the prayers in this application also and that is on the basis of a detailed letter written by central government Secretary"
Bench to ASG: "Have you filed any response?"
ASG: "I have not filed any response. For all these issues, state governments have to come forward, not some NGOs filing application that you release the funds to the state government"
Justice Amanullah to ASG: "It is a very, very good scheme. But now you are giving rise to corruption for the reason that you release the funds after 15 months, 16 months so there are chances that there will be fudging. Because now, at one point of time, you are deciding about a year and a half. The more it is up-t-date, the lesser the chance of pilferage....Kindly assist us as to what is the scheme and how to make it more conducive and streamlined. We will give you time. Ultimately it is the common man Who is benefiting from it"
Justice Rastogi: "Your demand is also very plausible that everybody who has worked must get the money. But the question is for this court to....suppose you’re coming from West Bengal, there are other states also. The state where you come from, the High Court can take care of what is the budget required for the state of Jharkhand or Maharashtra or Rajasthan or something else and how’s the central government corresponding to them. But if we take this call here, God knows how many more workers, state, budget, no budget, sanctioned, not sanctioned"
Mr. Bhushan: "All that I am saying is that the government has their website, they have an electronic system by which the people who have worked under MGNREGA are registered. The payment has to be made directly into the bank accounts of these workers by the central government. Today, the situation is that for many states, the payments are due, for West Bengal I know that for more than 15 months. The record is there with the central government that these workers have worked and this is the payment which is due to them, the obligation of the central government under the Act is to make the payment, the payment is made directly into their bank account, bank accounts are registered under MGNREGA. Now the central government is saying that 'look, we have no funds'. They are telling some state governments, like they told West Bengal government that 'You will not release funds in your state because of some allegations of corruption in your state'. Now under the act, if there is any allegation of corruption, the central government has the power to investigate those. They should investigate those. How can they not pay the workers who already worked? Also they have brought that every worker's bank account should be linked to his Aadhaar and unless it is linked to his Aadhaar, we will not make the payment. This court in Puttaswamy has made it very clear that you cannot deny someone payment for work that he has done or his legal entitlement just because of Aadhaar"
Justice Rastogi: "We have only one caveat- The central government only wants that the money should go to the beneficiary. They want to cross check that it must go to the beneficiary itself and no intermediary. To cross check, they want that if the link is there, lesser the possibility of any siphoning. Ultimately, the fact is the beneficiary must get what is due to him"
Mr. Bhushan: "But they cannot. Today more than 50% of the MGNREGA registered workers do not have Aadhaar linked to their bank account and the process of linking Aadhaar to their bank account is such a four-step cumbersome process"
Justice Rastogi: "Today the banks are also giving intimation....?"
Mr. Bhushan then requested that the bench heard Activist Nikhil Dey who has been associated with this cause for a long time.
Mr Nikhil Dey: "What I want to actually state is that for over 10 years, soon after the act began, all the workers are paid in bank accounts. There is no question of it not going. All workers' payments go straight to the bank account. It does not go by cash, it does not go to any other place, it goes directly to the bank account of the workers. What is being forced here is Aadhaar-based payment system (ABPS). They want this particular system where the payment will still go to your bank account but it is based on an NPCI mapping system which is very cumbersome. The workers also have Aadhaar. And they themselves for the last four years have been trying to get it done and more than 50% workers could not get on that. So I have worked, I have a bank account, I am being paid over there and now this has been imposed on me? An order passed on 30th of January saying from first of February no payment shall be made unless you are on the mandatory Aadhaar-based payment system? So half the workers in the country, who are roughly 15 crore workers, Will not be paid for work they have already done? I have an Aadhaar card but there is a particular system that they want which is not mandated under Aadhaar law or any other law"
Mr. Nataraj: "This is not an issue that they are opening now. This is a disposed off matter. 2018, the matter has been disposed off. In disposed off matters, he is filing application after so many years. His entire argument starts with government has not done, government has not done"
Justice Amanullah: "That we reject outright. Absolutely nothing to go in that. Let us not lose focus of the main thing....Don’t bring personalities and governments in between"
Justice Rastogi: "If we continue entertaining IAs in a disposed off matter, then there is no conclusion....This court can’t sit over and monitor all that is going on. Your object is very good, we appreciate it. Suppose you find that in one state, say Jharkhand, there is some problem going on, people are not getting their wages. They must get it undoubtedly. After the judgment of this Court, you can go under 226, you can pinpoint the grievance of the people, let the government of India be called upon how to manage their affairs. Otherwise, it is all going on, We are calling upon the government of India for nothing"
Mr. Bhushan: "We have not come with regard to any particular state, We have come for general problems which are recurring. And not the general problems, very, very serious general problems"
Justice Amanullah: "There is also a technical glitch in the sense that it is already disposed off. But for the larger (unclear), we are going ahead, we called upon his good offices (ASG's)....let us find a way out. When directly you send money to the workers, it is high time that we do not (trailing off)....let us strive for them, let governments and politics be out of it, no personalisation"
The bench then passed the following Order: "....Let a copy (of the IA) be made available to offices of Mr. Nataraj who may take instructions and file response. List in July"
Justice Rastogi: "How it is manageable, we have to think. Regulating from this Court is very, very difficult"
Mr. Bhushan mentioned Article 32
Justice Rastogi: "We agree with you, we are not saying you don’t have remedy to come to this court. But we want the system to work"
Mr. Bhushan: "We have raised general issues of all-india importance"
ASG: "They want to expose something by saying in West Bengal, it has not happened!"
Justice Amanullah: "We on the bench assure you that we will not let it happen"
Justice Rastogi: "Ultimately, we are not concerned with any state"
Mr. Bhushan prayed if the matter could be listed once before the summer vacations
Justice Rastogi: "We tell you one thing. Even if we put before vacation, nothing is possible"
Justice Amanullah: "Let us be reasonable. It is a pan-india thing. If you want a meaningful response, we need to give time"
Mr. Nikhil Dey: "It is a very unwieldy scheme actually. Credit to the government of India over all these years. It is a very easily trackable scheme, you know exactly every one of the 15 crore people, you know how they’re working in real time on the website, everything can be seen and can be corrected if there is sufficient money to pay that compensation which is required as per the law. Now some system has been put into place which is causing immense pain to crores of workers"
Justice Rastogi: "The government of India, with its long experience, wants that the money should go to the beneficiary, but at the same time, it must go to a real man who claims to be the beneficiary, and to cross check that- we learn by experience- to cross check that, the government wants some kind of a stringent condition to be there so that the money should flow to the people....Mr. Dey, find out a way by which, whatever the government of India’s experience must be, pilferage to the extent possible can be minimised. It still can't be ruled out. But if minimised, we are succeeding with implementation"
Justice Amanullah: "You started with saying it is a good system, trackable. That is the most fallacious track, data is the easiest thing to manipulate. Mr. Nataraj is sensitised enough for today, let him get back to us. You also give suggestions, take a more practical view on the ground"
Mr. Bhushan: "As a result of this payment system, when workers go asking for work, they are told by the state governments to first go and register under this ABPS system. It is so complicated, they have to stand in queues"
Justice Rastogi: "That is part of the system"
Mr. Bhushan: "It can't be"
Justice Rastogi: "Money must go to the actual beneficiary. So some cross checks are there. Find out alternatives?"
Mr. Bhushan: "Cross-checks can't be such...."
Justice Amanullah: "Probably you are arguing against yourself- That they are supposed to stand in lines. Is it not the responsibility of the state government to ensure that it is done?"
Same Sex Marriage Supreme Court Partner Age 18 Or 21 Special Marriage Act
While hearing the batch of petitions seeking legal recognition for same sex marriages in India, the Supreme Court Constitution bench was today faced with a conundrum as to which partner would be aged 18 years and who would be 21 years old as per the provisions of the Special Marriage Act.
The discussion began when Senior Advocate Mukul Rohatgi was taking the bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha through the provisions of the Special Marriage Act, 1954 to demonstrate where gender neutral terms could be inserted in the Act.
Section 4 of the Special Marriage Act stipulates conditions relating to solemnization of marriages. Sub-section 3 states that the male ought to have completed the age of twenty-one years and the female the age of eighteen years.
Justice Hima Kohli enquired how Section 4 of the Act would be read if gender neutral terms are employed in it. Senior Advocate stated that while for other Sections gender neutral terms had to be employed, the same could not be done for Section 4.
He initially suggested that the provision can be left as it is. "If two men are getting married, it is 21. If two females are getting married it is 18. You don't need to change it."
However, Justice Kohli and Justice Bhat did not seem satisfied with the submission. "The whole idea is that you go beyond your...then why male and female? You're splitting in and out," the Judges said.
Rohatgi then responded–
"If you read it as a person (instead of man or woman), it will give a dual age. What will be 18, what will be 21?"
Justice Bhat interjected–
"So for the main part you want it to be gender neutral but for this part, you want to retain male and female?"
Replying in an affirmative, Rohatgi said–
"Yes, because there are different ages- 18 years and 21 years. There is a proposed bill to increase 18 years to 21 years. There is already a bill. The moment 18 becomes 21 for women, the problem will be solved."
"That is a slightly dangerous argument,"CJI Chandrachud orally remarked at this juncture, adding that a petition by Advocate Ashwini Upadhyay had come before a bench he shared with Justice Narasimha where the provision that women should be 18 years was challenged. He stated that they had dismissed the petition stating that if the court holds the provision unconstitutional, there would be no minimum age of marriage.
However, Justice Bhat did not seem satisfied with the submission pertaining to retaining the words "male" and "female" for the purposes of Section 4. He said–
"There are so many spectrums. How do they get accommodated?"
Here, Senior Advocate KV Vishwanathan submitted–
"Section 4 guarantees them the option to choose the gender they manifest."
Justice Bhat orally remarked–
"So ultimately you're going back to the social stereotype you want to avoid...It syncs with what you want, it suits your purpose."
Once the exchange pertaining to Section 4 came to a rest, Rohatgi argued for gender neutral terms in other provisions in the Act. Referring to Section 2(b) of the Act, which defines “degrees of prohibited relationship”- as a man and any of the persons mentioned in Part I of the First Schedule of the Act and a woman and any of the persons mentioned in Part II of the said Schedule in a relationship, he said–
"So prohibition is that a man will not have a union with all persons named in Part I as similarly a woman will not have relationship with males mentioned in part II. Now technically, father is missing in Part I. So a man cannot have relationship with all those who are named in Part I who are women, but technically he can include a father. Smilarly woman cant have relationship with all males mentioned in Part II but technically it includes a mother. it's just a conundrum. But if you read it the way I'm saying (man and woman as person), so a person and any person mentioned in Part I and a person and any person mentioned in Part II. So both will apply now."
Seeking clarification on his submissions, CJI Chandrachud asked–
"According to you, if two men are getting married, it's not just Part I which will apply and if two women are getting married, it's not just Part II will apply...But this is also a tacit indication that the SMA did not contemplate people of same sex getting married."
To this, Rohatgi responded–
"To conform to the constitutional declaration, it has to be this. Otherwise this will become unconstitutional if the declaration is granted. We don't want it to be unconstitutional. We want to utilise it."
Rohatgi also urged the bench to not brush aside the issue merely on an argument that the society is not ready for same-sex marriages. He cited several examples where change in society was led by law.
"When the Hindu Code came, parliament wasn't ready. The Hindu Code wasn't just Hindu Marriage Act, it had adoption, succession - so many things. It wasn't accepted. Dr Ambedkar had to resign. Then it came in a truncated manner. First the Hindu Marriage Act, then succession act, then adoption, guardianship - all of them came after. So what was not accepted in 1950 was accepted in 1956, and then became the norm of the society."
He also referred to the introduction of Hindu Widows Right to Remarry Act which came in 1800s. "The society was not even ready till 1900s. There law acted with alacrity," he said.
Therefore, he urged the Supreme Court to push the society to acknowledge LBTQ community as equals in all respects.
"We rely on the prestige and the moral authority of the court apart from Article 141. When the highest court of the land says that you have a right to marry, that is what will drive the society to accept this group...Sometimes the law takes the lead, sometimes the society takes the lead. The power, jurisdiction, obligation, and responsibility of this court is only cast on this court. Even the HC doesn't have that power- as the final protector of Fundamental Rights," he said.
Rohatgi has concluded his arguments. The bench is now hearing Senior Advocate AM Singhvi for the petitioners. Read live updates here.
https://www.livelaw.in/top-stories/same-sex-marriage-supreme-court-partner-age-18-or-21-special-marriage-act-226712
Govt Servants Cant Claim Overtime Allowance Under Factories Act Supreme Court
In the marriage equality case before the Supreme Court, some petitioners have challenged the provisions of the Special Marriage Act 1954 which require parties intending marriage to give advance notice of 30 days, which will be published in the Registrar's office inviting public objections. Petitioners seeking recognition for same-sex marriage challenge these provisions as violative of fundamental rights to privacy and decisional autonomy and contend that the 'notice and objections' regime expose couples who enter into non-traditional marriages to threats and violence from families and vigilante groups.
The Constitution Bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha expressed agreement with the concerns raised by the petitioners.
Senior Advocate Dr Abhishek Manu Singhvi, appearing in the writ petition filed by Utkarsh Saxena and Ananya Kotia, pointed out that couples opting to get married under the Hindu Marriage Act or personal laws are not mandated to give advance notice to the public. However, the Special Marriage Act, which is a secular law, and which is intended to benefit inter-faith couples, has such provisions. "Which married couple in the heterosexual world has to announce first to the world that we intend to marry? Why should I? It's my personal decisional autonomy. It's the heart of my privacy to decide with whom I associate when, how, after how much time into matrimonial union- be it of the same sex or the opposite sex", he submitted.
Justice Ravindra Bhat at this point said that these provisions are "based on patriarchy". "It was created at a time when women didn't have agency", Justice Bhat added.
"This is an invitation to disaster and violence", Singhvi asserted.
"And the object was to protect! You're virtually laying them open to invasion by society..by Collectors, District Magistrates,Superintendent of Police", CJI DY Chandrachud stated.
Senior Advocate Raju Ramachandran, appearing for lesbian couple Kajal and Bhawna, also questioned the rationale behind these provisions of the Special Marriage Act. He pointed out that these provisions are indeed a relic of the British legislations intended to prevent "clandestine marriages" and wondered how can they be placed in a protective legislation.
"If the effect of these provisions is to deter your right to get married at a time when you desire to, it can't be regarded as procedural because the impact is on your substantive right to get married at the time you choose", CJI Chandrachud orally remarked. CJI also observed that the provisions may not meet the test of proportionality, even if they are regarded as a measure to check if the couples are meeting the conditions of marriage, as there are other less restrictive means.
"This notice requirement amounts to requirement of giving a notice to exercise my fundamental rights. This 30 day notice is designed for parental bodies and other busy bodies to create roadblocks", Ramachandran argued.
"There is a very real likelihood that this will disproportionately affect situations in which one of the spouses either belongs to a marginalized community. This has a disproportionate impact on most vulnerable of society", CJI opined.
"This would be equally true for heterosexual couples too", Justice Hima Kohli weighed in.
"Yes, it should be struck down for all. It's a retrograde provision. And it's obnoxious", Ramachandran asserted.
In 2021, the Allahabad High Court had declared that these provisions of the Special Marriage Act are not mandatory as the mandate for advance notice violate right to privacy.
https://www.livelaw.in/top-stories/govt-servants-cant-claim-overtime-allowance-under-factories-act-supreme-court-226755
Employees Of A State Board Cant Be Treated As State Govt Employees Supreme Court
The Supreme Court has held that the employees of a body corporate established by a State Government cannot be treated at par with the employees of the State Government.
A bench comprising Justices Dinesh Maheshwari and PV Sanjay Kumar made this observation while holding that the employees of Orissa Khadi and Village Industries Board are not entitled to pension on a par with Government employees. The bench observed that even if the State had established the Board to discharge its obligations under Article 43 of the Constitution of India to promote cottage industries, its employees cannot be treated at par with the State Government employees.
"Even when the State has established the Board to carry out its obligations in terms of Article 43 of the Constitution of India, it cannot follow as a corollary that the employees of this body corporate have to be treated as State Government employees in all respects. Such a corollary proposition would practically amount to merging of the Board with the State Government; rather making it as one of the Departments of the Government", the Court observed while allowing the State's appeal against the High Court's judgment which held that the Board's employees are entitled to pension at par with the Government employees.
The Supreme Court noted that the service conditions of the Board's employees are specifically governed by the regulations made in this regard- Orissa Khadi and Village Industries Board Regulations, 1960 (‘Regulations, 1960’). The Regulations specifically contain the stipulation in Regulation 52 that they shall not be entitled to pension. Hence, the employees cannot claim a right overriding this regulation.
Before the Supreme Court, the respondents cited several judgments which held that pension is neither a charity nor a bounty nor a gratuitous payment but, is earned for past services rendered; and that non-availability of financial resources cannot be a defence by the Government or any of its agencies or instrumentalities in taking away vested right accrued to the employees. While holding that these principles are beyon any doubt nor of any dispute, the Court held that they are not applicable in the instant case in view of the specific condition in the Regulation.
Concerning the plea of the respondents that this Court may exercise the powers under Article 142 of the Constitution of India to fill the gaps and to provide for pensionary benefits to the employees of the Board to do complete justice, the Court observed that under Article 142, it cannot issue directions in violation of the statutory provisions; and sympathy or sentiment, by itself, cannot be a ground for passing an order beyond and contrary to the legal rights.
"In the face of existing Regulation 52, we find it difficult to accede to the prayer made by the learned counsel for the respondents. In this regard, we could only reiterate that nothing contained in this judgment shall otherwise be of any impediment, if the State Government would be willing to carry out any amendment to the Regulations of 1960.
Case Title : State of Orissa v Orissa Khadi and Village Industries Board Karmachari Sangh.
Citation : 2023 LiveLaw (SC) 214
Click here to read the judgment
Pension - Supreme Court holds that the employees of Orissa Khadi and Village Industries Board are not entitled to pension on a par with Government employees-employees of a body corporate created by the State cannot be treated as State Government employees in all respects. Such a corollary proposition would practically amount to merging of the Board with the State Government- Entitlement of pension will be as per the Regulations of the Board - Para 16.1
Constitution of India 1950- Article 142- under Article 142 of the Constitution of India, this Court cannot issue directions in violation of the statutory provisions; and sympathy or sentiment, by itself, cannot be a ground for passing an order beyond and contrary to the legal rights - Para 23
https://www.livelaw.in/top-stories/employees-of-a-state-board-cant-be-treated-as-state-govt-employees-supreme-court-224360
Same Sex Marriage Case Supreme Court Questions Special Marriage Act Provisions On Notice Inviting Objections
In the marriage equality case before the Supreme Court, some petitioners have challenged the provisions of the Special Marriage Act 1954 which require parties intending marriage to give advance notice of 30 days, which will be published in the Registrar's office inviting public objections. Petitioners seeking recognition for same-sex marriage challenge these provisions as violative of fundamental rights to privacy and decisional autonomy and contend that the 'notice and objections' regime expose couples who enter into non-traditional marriages to threats and violence from families and vigilante groups.
The Constitution Bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha expressed agreement with the concerns raised by the petitioners.
Senior Advocate Dr Abhishek Manu Singhvi, appearing in the writ petition filed by Utkarsh Saxena and Ananya Kotia, pointed out that couples opting to get married under the Hindu Marriage Act or personal laws are not mandated to give advance notice to the public. However, the Special Marriage Act, which is a secular law, and which is intended to benefit inter-faith couples, has such provisions. "Which married couple in the heterosexual world has to announce first to the world that we intend to marry? Why should I? It's my personal decisional autonomy. It's the heart of my privacy to decide with whom I associate when, how, after how much time into matrimonial union- be it of the same sex or the opposite sex", he submitted.
Justice Ravindra Bhat at this point said that these provisions are "based on patriarchy". "It was created at a time when women didn't have agency", Justice Bhat added.
"This is an invitation to disaster and violence", Singhvi asserted.
"And the object was to protect! You're virtually laying them open to invasion by society..by Collectors, District Magistrates,Superintendent of Police", CJI DY Chandrachud stated.
Senior Advocate Raju Ramachandran, appearing for lesbian couple Kajal and Bhawna, also questioned the rationale behind these provisions of the Special Marriage Act. He pointed out that these provisions are indeed a relic of the British legislations intended to prevent "clandestine marriages" and wondered how can they be placed in a protective legislation.
"If the effect of these provisions is to deter your right to get married at a time when you desire to, it can't be regarded as procedural because the impact is on your substantive right to get married at the time you choose", CJI Chandrachud orally remarked. CJI also observed that the provisions may not meet the test of proportionality, even if they are regarded as a measure to check if the couples are meeting the conditions of marriage, as there are other less restrictive means.
"This notice requirement amounts to requirement of giving a notice to exercise my fundamental rights. This 30 day notice is designed for parental bodies and other busy bodies to create roadblocks", Ramachandran argued.
"There is a very real likelihood that this will disproportionately affect situations in which one of the spouses either belongs to a marginalized community. This has a disproportionate impact on most vulnerable of society", CJI opined.
"This would be equally true for heterosexual couples too", Justice Hima Kohli weighed in.
"Yes, it should be struck down for all. It's a retrograde provision. And it's obnoxious", Ramachandran asserted.
In 2021, the Allahabad High Court had declared that these provisions of the Special Marriage Act are not mandatory as the mandate for advance notice violate right to privacy.