Top News Headlines 11th Mar 2022: 74th Constitutional Amendment Does Not Restrict State’s Power To Legislate In Matters Of Local Bodies

74th Constitutional Amendment Does Not Restrict State’s Power To Legislate In Matters Of Local Bodies: SC

• The Hon’ble SC has observed, in the case of State of Rajasthan vs. Ashok Khatoliya that the Constitution (Seventy-Fourth Amendment) Act, 1992 does not take away the State’s power to legislate in matters pertaining to local government.
• In the instant case, the Rajasthan HC set aside a notification issued by the State declaring Gram Panchayat Roopbhas, Bharatpur as a Municipal Board on the ground that no public notification has been produced specifying the Gram Panchayat Roopbhas as a transitional area, thereby violating the provisions of Article 243Q(2) of the Constitution and thus, the same cannot be declared as a Municipal Board.
• The Counsel for the State relied upon the likes of Tulsipur Sugar Co. Ltd vs The Notified Area Committee, Tulsipur (1980) SCC, and Sundarjas Kanyalal Bhatija and ors vs Collector, Thane, Maharashtra (1989)3 SCC to contend that the power to declare a Municipal Board or a Municipality is a legislative function and the notification issued by the Governor is actually a notification issued by the State Government. The Counsel also contended that the provisions of Section 5 of the Municipalities Act is not inconsistent with the provisions of Article 243Q of the Constitution. Thus, the HC has gravely erred in quashing the said notification.
• The Counsel for the respondents vehemently argued that they did not dispute that the notification issued under section 5 of the Municipalities Act is a State function but argued that at first there has to be a notice under Article 243Q of the Constitution and only then can the State Government issue the notification constituting a Municipal Board.
• The Hon’ble Apex Court observed that the scheme of the 74th Constitutional Amendment is not to take away the competence of the State legislature but is to ensure that the three tiers of the Government are strengthened as a part of the democratic set-up. The same is also evident in the statement of objects and reasons appended to the 74th Amendment.
• The Court relied upon the judgement of Parmar Samantsinh vs State of Gujarat (2021)SCC wherein it was held that the power of the State to legislate in its legislative competence cannot be curtailed in the absence of an express restriction placed upon that power by the constitution itself.
• The Court also observed that local Government falls under entry 5 of list II of the Seventh Schedule, thus the State government has the complete authority to legislate in that matter, with the only limitation that the provisions of the State Act cannot violate the provisions of Part IX B of the Constitution.
• The Apex Court also observed that the provisions of Section 5 of the Municipalities Act are in no way violative of Article 243Q of the Constitution and the State Government is competent to divide the municipalities according to their income and other factors like population.
• Thus, the appeal was allowed and the order of the HC was set aside .

10-Year-Old Rape Survivor Seeks Medical Abortion; Shameful And Unfortunate Act For The Society To Witness: Kerala HC

• In YYY v. Union of India (2022), Justice P.V. Kunhikrishnan of Kerala HC granted the victim's mother's request stating that it was a shame that the victim's father was the alleged perpetrator. She added that the accused shall not be allowed to get away from the clutches of the Indian legal system and shall be penalized in accordance with the law. The single-judge bench further noted that since the victim was just a child of ten years old, medical complexities could be a possibility concerning her health and that considering all the facts and circumstances of the case, the Court must exercise its jurisdiction keeping the Almighty in mind.
• In this case, a 10-year-old girl was allegedly sexually abused by her father which resulted in her conceiving a child. When the current application was moved, she was already 30 weeks pregnant. Previously, when the matter was taken up, the medical board formed to examine the minor girl concluded that she would require surgery to terminate the pregnancy and that there was an 80 percent chance the baby would still survive the procedure. The board also stated that the operation involved a risk of neonatal morbidity and medical complications to the minor's health.
• The important statues to this case are mentioned below:
• The Medical Termination of Pregnancy (MTP) Act, 2003, was established to improve implementation and increase access for women, particularly in the private health sector.
• Article 226 empowers the high courts to issue orders or writs to any person or authority, including habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any combination of these.
• The Juvenile Justice Act (JJA) of India addresses provisions for children who are in conflict with the law. It also includes provisions for children who require care and protection.
• In a similar case, XYZ v. Union of India and Others [MANU/MH/0565/2019], the Bombay HC issued specific directions regarding the newborn child's welfare if it survived. It was determined that the Court, while exercising its powers under Article 226, permits medical termination of the pregnancy and that if the child is born alive, the registered medical practitioner and the hospital concerned must assume full responsibility for ensuring that such child receives the best medical treatment available in the circumstances under statutory provisions in the Juvenile Justice Act.
• In the light of the aforementioned case and statutes, the Hon'ble Court ordered the State government and the hospital to ensure that the infant receives all necessary medical care if it was born alive. The Hon'ble Court issued the following directions concerning the same:
• The respondent hospital has one week to complete the necessary procedures under the Medical Termination of Pregnancy Act. If they require expert medical assistance from other specialists, they can request the Director of Health Services, who will act promptly.
• If the baby is born alive, the hospital will follow the law and assume full responsibility for ensuring that such a child receives the best medical treatment available in the circumstances so that it grows into a healthy child.
• It is also declared that if the child's parents are unwilling or unable to assume responsibility for the child, the State must take full responsibility for the child and provide such child with medical support and facilities as may be reasonably possible, always adhering to the principle of best interests of the child as well as the statutory provisions in the Juvenile Justice Act.
• Therefore, the Hon'ble HC granted the plea followed by the directions as mentioned earlier.

SC/ST Welfare Department And Not Appointing Authority Can De-reserve SC/ST Quota Seats : SC

• In Mandeep Kumar And Ors. v. UT Chandigarh And Ors., 2022, Justices Indira Banerjee and JK Maheshwari refused to meddle with the ruling of the Punjab and Haryana HC regarding the interchangeability/de-reservation.
• In this instance, after some applicants threatened to commit suicide in protest, a PIL was filed against the Punjab Government for its failure to fill Education Trained Teacher positions. The Hon'ble HC issued an order to fill the 4500 and 2005 vacancies, notified via an advertisement, on a temporary basis. Even though the government filled ETT positions based on merit and reservation, 595 posts in the SC/ST category remained unfilled due to a lack of qualified applicants in that category. The applicants (Appellant) who were placed on the merit list for the job of ETT in the Backward Classes category requested the Court to direct interchangeability of the vacant posts to be filled by the applicants of Backward Classes. The applicants made submissions to the appropriate authorities based on the policy letter issued by the State granting interchangeability. However, the government allegedly re-advertised the vacant positions without considering the submissions.
• The State, when questioned, clarified that the representations were rejected again, and it was decided to re-advertise the SC/ST category positions. The Court approved it after considering the Additional Advocate General's assertion that actions are being made to investigate the matter of de-reservation. As a result, the HC dismissed the appellants' petition. The appellant used Section 7(2) of the Punjab Scheduled Castes and Backward Classes Act to prove their case, while the respondent applied Section 7 of the Act to counter the appellant.
• The important statues to this case are mentioned below:

1. Section 7 of the Punjab Scheduled Castes and Backward Classes (Reservation in Service) Act, 2006, states that no appointing authority shall de-reserve any reserved post in any organization to be filled by direct recruitment or promotion. If a qualified or suitable Scheduled Castes or Backward Classes applicant, as the case may be, is not available to fill the post, the vacancy must remain unfilled.
2. Section 7(2) of the Punjab Scheduled Castes and Backward Classes (Reservation in Service) Act, 2006, states that the appointing authority cannot participate in the de-reservation of reserved vacancies, but the same can only be done by the Department of Welfare of Scheduled Castes and Backward Classes.

• The Hon'ble Court observed that the appointing authority cannot de-reserve a reserved position to be filled by direct recruitment or promotion based on Section 7(2) of the 2006 Act. However, if openings remain unfilled owing to a lack of qualified candidates, the Department of Welfare of Scheduled Castes and Backward Classes can request that the vacancies be de-reserved. If it is in the public interest, the Department can make such a de-reservation after recording reasons.
• The Hon'ble SC further contended that the form of the protest that compelled the High Court to intervene was regrettable and inappropriate. The Court also noted that issuing an interchangeability directive after six years of notifying the selection list to fill vacant SC/ST category jobs would be unreasonable.
• Therefore, the appeal was dismissed.