Read Order: M/S MADURA COATS PRIVATE LIMITED v. THE COMMISSIONER OF CENTRAL EXCISE AND ANR [DEL HC-CIVIL APPEAL NOs. 5347-5348 of 2024]
LE Correspondent
New Delhi, April 26, 2024: In a case alleging a fabric company's involvement in clearance of stock without payment of duty, the Supreme Court has confirmed the order of the Madras High Court remanding the matter back to the CESTAT. The Top Court agreed with the High Court's view that the letter, which was claimed by the appellant as not having been furnished, was only a ruse for not replying to the show cause notices.
In this case the appellant Company has been engaged in the manufacture of cotton yarn, polyester yarn and other materials. Based on an information received that it had indulged in clearance of certain goods manufactured by it without payment of duty resulted in the preventive unit of the respondent visiting the unit and conducting a stock challenge of the finished fabrics stocked in the bonded warehouse.
Based on a prima facie and reasonable belief that excess quantities of stock were stored for illicit removal, the department seized the excess stock under mahazar and it was provisionally released on execution of general bond. It also resulted in the issuance of two show cause notices (SCNs) which resulted in two orders being passed by the respondent. Being aggrieved by the same, appeals came to be filed before CESTAT whereunder the tribunal set aside the orders in original with a direction to the respondent to provide a copy of the letter referred to in the SCNs to the appellant and to decide the matter afresh.
In the teeth of direction issued by the tribunal, first respondent adjudicated the show cause notices afresh and by separate orders raised the demand for payment of duty which resulted in both the orders being challenged by filing two appeals before CESTAT. The Tribunal allowed the appeals and directed the respondent to pass fresh orders. The respondent filed an application under section 35C (2) of the Central Excise Act, 1944 for rectification of the order contending that the letter which was ordered to be furnished by the department was not available and sought permission to adjudicate the SCNs afresh. The said application came to be dismissed.
The respondent herein filed two miscellaneous petitions before CESTAT for modification of the earlier orders resulting in modification of the order dated 05.05.2009 whereby the respondent was directed to adjudicate the show cause notices without relying upon the letter. Being aggrieved by the same, the appellant filed two appeals before the Madras High Court whereby the matter was remanded back. Hence, appeals were filed before the Top Court.
It was the case of the appellant that the High Court erred in not appreciating the fact that in the absence of document containing detailed explanation the adjudicating authority cannot appreciate and adjudicate the SCNs and the order of remand to the tribunal was erroneous.
The respondent contended that the appellant had been successfully dodging the adjudication process on one pretext or the other and the so-called letter dated 20.01.2001 which had been directed by the CESTAT by Order dated 06.09.2006 to be furnished to the appellant was the letter of the appellant itself, which undisputedly was an explanation offered by the appellant with reference to alleged shortfall and excess storage of fabrics.
The Division Bench of Justice Pamidighantam Sri Narasimha and Justice Aravind Kumar was of the opinion that the High Court had rightly opined that the said letter which was claimed by the appellant as not having been furnished was only a ruse for not replying to the show cause notices and it would in no way prejudice the appellants claim, particularly in the background of reliance not having been placed by the respondent- authority for adjudicating the SCNs.
It was observed that in the absence of prejudice having been caused to the appellant no fault could be laid at the doors of the respondent.
The Bench further observed that the High Court had also rightly not remitted the matter to the adjudicating authority for considering the matter afresh.
Though the Court agreed with the contention that order of review or modification which came to be passed on 08.03.2010 was without sanctity of law deserved to be accepted, yet for the reason that matter had been remanded back to the tribunal for adjudicating the SCNs afresh, it dissuaded the Court from setting aside the impugned order.
The Top Court reserved the liberty to the appellant to urge all contentions before the tribunal including the one urged before this Court namely to demonstrate as to how prejudice had been caused to the appellant by non- furnishing of the said letter dated 20.01.2001 (with enclosures). The order of remand made to the tribunal by the High Court under the impugned order also stood affirmed.
Read Order: ASSOCIATION FOR DEMOCRATIC REFORMS v. ELECTION COMMISSION OF INDIA AND ANOTHER [SC- WRIT PETITION (CIVIL) NO. 434 OF 2023]
Tulip Kanth
New Delhi, April 26, 2024: The Supreme Court has rejected the pleas to revert to paper ballot voting system and initiate 100% verification of Voter Verifiable Paper Audit Trail (VVPAT) against the EVM outcomes. The Top Court has also directed that on completion of the symbol loading process in the VVPATs undertaken on or after May 1, 2024, the symbol loading units shall be sealed and secured in a container. The Top Court has also directed that the burnt memory/microcontroller be verified post the announcement of the results.
The Division Bench of Justice Dipankar Datta and Justice Sanjiv Khanna penned down separate but concurring judgments.
Due to the possibility of manipulating the EVMs, the petitioners approached the Top Court to instil confidence in the voters. It was urged on behalf of the petitioner – Association for
Democratic Reforms, that the Court should direct return to the paper ballot system or the printed slip from the Voter Verifiable Paper Audit Trail machine be given to the voter to verify, and put in the ballot box, for counting. It was also urged before the Court that direction be issued mandating that there should be 100% counting of the VVPAT slips in addition to electronic counting by the control unit.
Justice Khanna noted that time and again use of EVMs has been objected to and questioned, not by one but by all political parties and others. There have been several litigations in this Court and the High Courts, albeit the challenge to the use of EVMs has been rejected recording good grounds and reasons.
Penning down the many advantages of the EVM-VVPAT mechanism, he said, “Thus, it is clear that till the symbol loading into the VVPAT is done by using the symbol loading unit, the EVM is blank and has no data/particulars of political parties or candidates. One cannot ascertain and know which button/key in the ballot unit will be allocated to a particular candidate or a political party.”
The Bench did point out that in the 2019 Lok Sabha Elections, 20,687 VVPAT slips were physically counted, and except in one case, no discrepancy or mismatch was noticed. On verification, it was found that the discrepancy had arisen on account of failure of the presiding officer to delete the mock poll data. “While it is not possible to rule out human errors, paragraph 14.5 of Chapter 14 of the Manual on EVM and VVPATs deals with such situations and lays down the protocol which is to be followed”, it added.
It was also highlighted that the EVMs have been subjected to test by technical experts committee from time to time. These committees have approved and did not find any fault with the EVMs. The ‘M3’ EVMs currently in use are designed by engineers of BHEL and ECIL. These designs are vetted by the technical experts committee.
Further, acknowledging the right of voters to question the working of EVMs, which are but an electronic device that has a direct impact on election results, Justice Khanna stated that it is also necessary to exercise care and caution when aspersions are raised on the integrity of the electoral process.
“While we acknowledge the fundamental right of voters to ensure their vote is accurately recorded and counted, the same cannot be equated with the right to 100% counting of VVPAT slips, or a right to physical access to the VVPAT slips, which the voter should be permitted to put in the drop box”, he said.
As per the Top Court, giving physical access to VVPAT slips to voters is problematic and impractical. It will lead to misuse, malpractices and disputes. The Court was also not inclined to modify the directions to increase the number of VVPAT undergoing slip count as it would increase the time for counting and delay declaration of results. The manpower required would have to be doubled. The data and the results do not indicate
any need to increase the number of VVPAT units subjected to manual counting.
Furthermore, EVMs reduce paper usage and alleviate logistical challenges. They also provide administrative convenience by
expediting the counting process and minimizing errors.
In view of the fact that Rule 49MA of Conduct of Election Rules, 1961, permits the elector to raise a complaint if she/he is of the view that the VVPAT paper slip did not depict the correct candidate/political party she/he voted, the Court rejected the argument that any elector should be liberally permitted as a routine to ask for verification of vote.
Thus, to only further strengthen the integrity of the election process, the Bench issued the following directions:
- On completion of the symbol loading process in the VVPATs undertaken on or after 01.05.2024, the symbol loading units shall be sealed and secured in a container. The candidates or their representatives shall sign the seal. The sealed containers, containing the symbol loading units, shall be kept in the strong room along with the EVMs at least for a period of 45 days post the declaration of results. They shall be opened, examined and dealt with as in the case of EVMs.
- The burnt memory/microcontroller in 5% of the EVMs, that is, the control unit, ballot unit and the VVPAT, per assembly constituency/assembly segment of a parliamentary constituency shall be checked and verified by the team of engineers from the manufacturers of the EVMs, post the announcement of the results, for any tampering or modification, on a written request made by candidates who are at SI.No.2 or Sl.No.3, behind the highest polled candidate. Such candidates or their representatives shall identify the EVMs by the polling station or serial number. All the candidates and their representatives shall have an option to remain present at the time of verification. Such a request should be made within a period of 7 days from the date of declaration of the result. The District Election Officer, in consultation with the team of engineers, shall certify the authenticity/intactness of the burnt memory/ microcontroller after the verification process is conducted. The actual cost or expenses for the said verification will be notified by the ECI, and the candidate making the said request will pay for such expenses. The expenses will be refunded, in case the EVM is found to be tampered.
In his concurring opinion, Justice Datta mentioned that the petitioners’ apprehensions were misplaced as reverting to the paper ballot system, rejecting the inevitable march of technological advancement, and burdening the ECI with the onerous task of 100% VVPAT slips tallying would be a folly when the challenges faced in conducting the elections are of such gargantuan scale.
He also emphasized on the fact that the mere suspicion that there may be a mismatch in votes cast through EVMs, thereby giving rise to a demand for a 100% VVPAT slips verification, is not a sufficient ground for the present set of writ petitions to be considered maintainable.
“I also wish to observe that while maintaining a balanced perspective is crucial in evaluating systems or institutions, blindly distrusting any aspect of the system can breed unwarranted scepticism and impede progress”, Justice Datta asserted while further adding,“ I conclude with the hope and trust that the system in vogue shall not fail the electorate and the mandate of the voting public shall be truly reflected in the votes cast and counted.”
Read Order: MOHD. AHSAN v. STATE OF HARYANA [SC- CRIMINAL APPEAL NO. 2265 OF 2024]
LE Correspondent
New Delhi, April 26, 2024: The Supreme Court has altered the conviction of the accused-Appellant under Section 302 of the IPC to one under Part I of Section 304 after noting that the incident leading to the death of a man occurred without premeditation, in a sudden fight, in the heat of passion and upon a sudden quarrel.
The facts of the case were that on August 18, 2005, the SHO of Jagadhri Police Station City, namely, Jai Singh (PW-13), received telephonic information about the death of one Vikrant @ Chintu (deceased) who had been admitted in Civil Hospital in an injured state. The medico-legal report of the deceased was obtained from the hospital and the statement of the de-facto complainant (PW-10) was recorded. FIR was registered under section 302 of the Indian Penal Code, 1860 against the present Appellant. Subsequently, the post mortem of the deceased was conducted wherein it was concluded that the cause of death was shock due to massive haemorrhage which was sufficient to cause death under normal circumstances.
The prosecution case was that on August 17, 2005 the de-facto complainant (PW-10) had been taking food at a Dhaba in the company of PW- 12 when another group of four men including PW11 and the deceased arrived at the same place. To attract the attention of the waiter, the deceased called the waiter by use of the word hello and this gesture irked another customer i.e. the present Appellant who was seated in a corner of the Dhaba, smoking a cigarette. The Appellant initially abused the deceased and a quarrel took place. The Appellant rushed to his car and pulled out a glass bottle which he broke on the bonnet of his car and thereafter proceeded to inflict five injuries on the body of the deceased, due to which the deceased fell to the ground bleeding, after which the Appellant fled from the scene.
Subsequently, PW-11 and the others rushed the deceased to the hospital where he eventually succumbed to his injuries. The appeal before the Top Court was filed by the appellant accused challenging the judgment of the Division Bench of the Punjab and Haryana High Court dismissing the Criminal Appeal preferred by the Appellant and upholding the order of conviction and sentence as recorded by the Sessions Judge.
It was the appellant's case that even if the prosecution case was taken at its face value, it would reveal that the incident occurred out of a sudden fight and thus, the conviction under Section 302 of the IPC would not be tenable and the offence would be required to be brought under Part I or Part II of Section 304 of the IPC.
After extensively going through the testimonies of the prosecution witnesses, the 3-Judge Bench of Justice B.R. Gavai, Justice Aravind Kumar & Justice Sandeep Mehta opined that there was no premeditation. The incident occurred since the appellant believed that the utterances by deceased Vikrant @ Chintu were aimed at him and, therefore, he retaliated by abusing the deceased. This was followed by a heated exchange between them. They grappled out of the building of the Dhaba. Though the witnesses were successful in separating them, the accused-Appellant rushed to his car, pulled out a bottle from the drivers seat side, broke it on the bumper of the car and attacked the deceased.
“It is thus clear that the incident occurred without premeditation, in a sudden fight, in the heat of passion and upon a sudden quarrel. The evidence would also not show that the accused-Appellant had either taken undue advantage or acted in a cruel or unusual manner. We therefore find that the present case would fall under Exception 4 to Section 300 of the IPC”, the Bench said.
Thus, partly allowing the appeal, the Bench altered the conviction of the accused-Appellant under Section 302 of the IPC to one under Part I of Section 304 of the IPC. The Top Court also sentenced him to rigorous imprisonment for a period 8 years and a fine of Rs 5,000.
Read Order: RAJAT KUMAR v. THE STATE (NCT OF DELHI) [DEL HC- CRL.M.C. 4608/2022]
LE Correspondent
New Delhi, April 26, 2024: The Delhi High Court has quashed an FIR registered against a police constable with the observation that dishonest intention or wilful conduct on part of the accused is a prerequisite to make out a charge of criminal breach of trust against a public servant under Section 409 read with Section 405 IPC.
The Single-Judge Bench of Justice Navin Chawla was considering a petition filed under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of FIR registered under Section 409 of the Indian Penal Code, 1860 and criminal proceedings emanating therefrom.
It was the case of the prosecution that on the night of 15.03.2014, a 9mm Pistol with 5 live cartridges, was issued to the petitioner, who is working as a constable with the Delhi Police. Later, he was contacted many times to deposit the weapon and ammunition in the Maalkhana but he failed to do so nor was he able to give a satisfactory reply in this regard. It was further stated that he tried to linger the matter by stating that he would be depositing the same after some time. Efforts for search of the weapon and cartridges were also made, however, it proved futile and no clue regarding the same came to light. As the petitioner failed to deposit the weapon and the cartridges, the present FIR was registered against him.
The petitioner, apart from being made an accused in the subject FIR and the consequent trial, also faced a Departmental Inquiry, which resulted in an order passed by the Disciplinary Authority. The Authority had ordered that two years approved service of the Constable be forfeited permanently entailing proportionate reduction in his pay with immediate effect. His suspension period from 21.03.2014 to 06.04.2015 was also decided as period not spent on duty for all intents and purposes.
Highlighting the interplay between the adjudication proceedings and criminal prosecution, the Bench referred to the judgements in Radheshyam Kejriwal v. State of West Bengal,[LQ/SC/2011/280] and Ashoo Surendranath Tewari v. The Deputy Superintendant of Police, EOW, CBI & Anr., [LQ/SC/2020/653].
“.... it is apparent that while there can be no dispute with the proposition that mere exoneration or finding to that effect of the Disciplinary Authority may not have a binding effect on the criminal prosecution, at the same time, in the peculiar facts of the present case, it is noticed that both the proceedings, that is, the criminal proceedings as also that of the Disciplinary Authority are premised on the loss of the weapon and the cartridges by the petitioner. The Disciplinary Authority, on appreciation of evidence, found that the same was accidental and there was no ill/mala fide intention on the part of the petitioner in the loss of the same”, the Bench said.
The High Court also clarified, “Dishonest intention or wilful conduct on part of the accused is, therefore, a prerequisite to make out a charge of criminal breach of trust against a public servant under Section 409 read with Section 405 IPC.”
Noting that the Disciplinary Authority had found that there was no dishonest intention on part of the petitioner and he was at best negligent or careless in the loss of the weapon and the cartridges, the Bench held, “In my view, therefore, continuation of the criminal proceedings against the petitioner would be against the interest of justice and should be liable to be quashed.”
Placing reliance upon State of Haryana & Ors. v. Bhajan Lal & Ors., the High Court exercised its inherent powers under Section 482 of the Cr.P.C. to quash the FIR and all the proceedings emanating therefrom.
Read Order: JAMSHEED ZAHOOR PAUL v. STATE OF NCT OF DELHI [DEL HC- CRL.A. 51/2024]
Tulip Kanth
New Delhi, April 26, 2024: While observing that the appellant was in touch with cadres of ISIS which was sufficient to give insight into his culpable mind, the Delhi High Court has dismissed an appeal filed by a man booked under provisions of the Unlawful Activities (Prevention) Act (UAPA) challenging the rejection of his bail plea.
The incident is of the year 2018 when the Special Cell (New Delhi Range) received information that two persons i.e. Parvaiz Rashid Lone and Jamsheed Zahoor Paul (appellant herein) were radicalized youths of Jammu & Kashmir, having allegiance to banned terrorist organization ISIS/SI/DAESH. As per intelligence inputs, they had procured arms and ammunition from UP for their cadres for executing some terrorist act in Jammu & Kashmir. The information that they would come to Netaji Subhash Park, near Lal Quila (Red Fort) on 07.09.2018 to proceed to Kashmir and if raided, they could be caught with illegal weapons, was found to be correct.
The raiding team found the aforesaid named suspects moving towards Lal Qila. They were immediately overpowered. Their names and addresses were ascertained and their search was conducted. Search of the appellant yielded recovery of one pistol, containing five live cartridges in its magazine. From the possession of Parvaiz Rashid Lone (A-1) also, one pistol was recovered. These were seized.
Both the accused disclosed that they had procured the recovered weapons, in lieu of money from four persons from UP. When the police tracked them down, they were found to be juveniles in conflict with law (JCL) and, therefore, a separate report was prepared against them, which was filed before the Juvenile Justice Board (JJB).During investigation, both the accused divulged that they were propagating the ideology of terrorist outfit ISIS in India and were in touch with another ISIS militant, namely, Abdullah Basith. Said militant had already been arrested by NIA. FIR had been registered for commission of offence under Section 25 of Arms Act as well as Sections 18 & 20 of Unlawful Activities (Prevention) Act (UAPA).
The accused approached the Delhi High Court by filing an appeal under Section 21(4) of the National Investigation Agency Act, 2008 (NIA) praying therein that impugned order whereby his bail plea had been rejected, be set aside and consequently, he may be released on regular bail.
The Division Bench of Justice Suresh Kumar Kait and Justice Manoj Jain firstly explained that Section 18 & 20 UAPA fall under Chapter IV of UAPA which deals with punishment for terrorist activities. The Bench also said, “Though in adversarial system, there is presumption of innocence in favour of accused and, therefore, bail is generally a rule, UAPA contains modified application of certain provisions of Criminal Code of Procedure and thus commands that no person accused of an offence punishable under Chapter IV and/or Chapter VI shall, if in custody, be released on bail if there are reasonable grounds of believing that the accusation against such person is prima facie true.”
The High Court was of the view that once charges are framed, it can be easily assumed that there is a very strong suspicion against the accused. “Be that as it may, there can never be any restriction or embargo on moving application seeking bail. Such unfettered right remains available as long as the proceedings are alive”, it added.
Noting that the factual situation was not a case of chance recovery, the Bench opined that after the appellant was apprehended, a pistol of 7.65 caliber with five live cartridges loaded in its magazine was recovered from him. When his personal search was conducted, he was found in possession of two mobile phones.
As per respondent, appellant admitted that he was in contact with ISIS- JK Umar Iban Nazir (no more alive now) and Adil Thokar (absconding and untraceable) over Black Berry Messenger (BBM), a safe chat application and at their directions, he along with his co-accused had collected weapons from UP for their outfit. He also admitted that he had met Abdullah Basith (cadre of ISIS-JK) at Jama Masjid in Delhi in connection with supply of arms and ammunition for Tanjeem. He revealed that he was following cadres of ISIS (JK Module) through social media, BBM and Facebook and that his BBM account was with the name of PEHRAAN CHUN. Forensic analysis had also verified the same.
The involvement of co-accused was held to be much deeper as BBM Chat retrieved from his mobile contained discussion about Army movement in Kashmir. Both the accused had procured weapons from UP. They both had come to Delhi together and were planning to go to Kashmir together. “Therefore, at this initial juncture, it cannot be said that there was no agreement or tacit understanding or meeting of minds between them. They seemed to know each other very well and despite being fully conversant about their respective antecedents, they chose to stick together”, the Bench said.
The appellant was in touch with militants as well and he met one of them in Delhi. As per prosecution, weapons were being arranged for perpetuating terror and, therefore it was opined that there was material to show that there was a prima facie true case against the appellant.
The Bench asserted, “Thus, appellant, being supporter of ideology of ISIS, arranged illegal weapons and was involved in providing other logistic support to its cadres. It is also quite obvious that appellant had not only personally met Abdullah Basith but was communicating with Umar Iban Nazir and Adil Thokar. Merely because some of the incriminating BBM chats were found on the mobile of his co-accused would not mean that at this point of time, the said fact cannot be taken as a circumstance against the appellant…Moreover, Section 10 of Evidence Act cannot be kept aside which visualizes such type of situation and makes the actions and the statements of co-conspirator to be relevant as against the others. Such action or statement can even be used for proving the existence of conspiracy.”
Noticing that there were clear-cut allegations indicating that accusation against the appellant was prima facie true, the Bench said, “The appellant was in touch with cadres of ISIS which is sufficient to give insight of his culpable mind.” Reliance was also placed upon Arup Bhuyan v. State of Assam [LQ/SC/2023/329] wherein it has been observed that mere membership of banned organization is also sufficient to incriminate, without there being any overt act.
It was further stated by the Bench that in the case in hand, the maximum sentence provided under Section 18 & 20 UAPA is imprisonment for life and there was nothing which might indicate that prosecution was acting in a manner which was detrimental to his fundamental rights as provided under Part-III of the Constitution of India. Therefore, it was held at this juncture, merely because of the incarceration period of more than 5 years, the accused would not become entitled to bail.
Thus, noting that the High was taking up the matter diligently by giving shortest possible dates, the Bench dismissed the appeal.
Read Order: SOMRAJ @ DHAMI v. STATE OF NCT OF DELHI AND ANR [DEL HC- CRL.M.C. 2180/2022]
Tulip Kanth
New Delhi, April 26, 2024: In a recent development in the Kishangarh shooting case where there was a daylight attack on the petitioner Somaraj @ Dhami, who is accused of having killed AAP volunteer Late Ashok Mann, the Delhi High Court has cancelled the anticipatory bail granted to Mann’s wife.
The Single-Judge Bench of Justice Navin Chawla was considering a petition filed under Section 439(2) read with Section 482 of the Code of Criminal Procedure, 1973 praying for cancellation of the anticipatory bail granted to the respondent no.2.
It was the case of the Prosecution that on 18.10.2021, the petitioner was travelling in his Fortuner car, being driven by his driver while returning from the court to his house. At about 12.40 PM, when he reached near Kishangarh, 4-5 assailants fired on him. One of the shots struck his driver, who was then rushed to the Fortis Hospital. He raised a suspicion of the said attack on Sanjay Mehlawat and Harender Mann, as he suspected that they had attacked him to take revenge as he was accused of having killed Ashok Maan, uncle of Harender Maan, in February, 2020 and was facing trial for the same along with his brothers Davender @ Dev and Dharmbir @ Kalu.
It was the case of the prosecution that four of the accused were arrested in connection with the FIR registered under Sections 25/54/59 of the Arms Act, 1959, and two pistols and one Desi Katta along with 50 live cartridges were recovered from them. They disclosed their involvement in the present case. Further co-accused were also arrested in the said case.
The prosecution further alleged that the respondent no.2, wife of Late Ashok Maan, wanted to take revenge for the murder of her husband, and was involved in the conspiracy for the attack in question since the beginning. She had met the accused persons in her house and provided them rooms and shelter before the incident. The Status Report filed by the Station House Officer (SHO),complains that after being granted anticipatory bail, the respondent no.2 was not cooperating in the investigation.
The Bench noticed that there was a daylight attack on the Complainant/Petitioner by the assailants by firing gunshots in which one person was injured. The police/prosecution needed the licensed weapon to determine if it was used in the attack.
Respondent no.2 had not denied the fact that her husband did hold a licenced pistol. She alleged that she did not know the whereabouts of that licenced weapon and also admitted that no complaint of the weapon being missing had been lodged so far in spite of the police repeatedly seeking the recovery of the said weapon.
The Bench was of the view that the respondent no.2 was in clear breach of the condition that she would cooperate with the police officials.
The High Court asserted, “What the police needs from the respondent no.2 is not her confessional statement, but recovery of the weapon for which the respondent no.2’s husband was holding a licence. It cannot be said to be an attempt to obtain a confessional statement or self-incriminating statement. It is also settled law that custodial interrogation may sometimes prove more useful to unearth the entire gamut of conspiracy.”
Accordingly, the Bench cancelled the anticipatory bail granted to the respondent no.2. However, on the request of the respondent’s Counsel, the Bench ordered no coercive steps to be taken against respondent no.2 for a period of two weeks.
Read Order: FAZILA SAYYED v. UNION OF INDIA & ORS [DELHI HC- W.P.(CRL) 889/2023]
LE Correspondent
New Delhi, April 26, 2024: The Delhi High Court has dismissed a petition seeking quashing of a detention order passed under COFEPOSA Act filed by the deceased detenu's wife. The High Court observed that there was no material to portray that the time lapse, between the detention order and its execution, would lead to the inference that the live-link between the prejudicial activity of the detenu and the object of detention stood snapped.
The incident is of the year 2004 when the Directorate of Revenue Intelligence (DRI) had information that one sea-faring vessel would be entering into Indian customs waters carrying approximately 700 metric tonnes of smuggled diesel oil of foreign origin, which would be offloaded in several barges and then would be carried to the coast. Pursuant thereto, the DRI officials spotted a vessel by the name of M.T. AL SHAHABA which was found carrying High Speed Diesel (HSD)/Marine Gas Oil being brought from Muscat, Sultanate of Oman into Indian waters, illegally. Sayyed Hussain Madar @ Chand (Detenu) was also found present on said vessel. It was learnt that he was the one who had also arranged for the barges and tow boats for the purposes of smuggling of said oil. Thus, it came to fore that a huge quantity of the diesel oil was being smuggled with no import documents.
The quantity of diesel totalling 770.00 C.MTR weighing 635.556 metric tonnes, valued at more than Rs. 2.30 crores, was seized on 21.12.2004 under the provision of Customs Act 1962.
Statement of detenu was also recorded under Section 108. All the crew members of the barges and two tow boats and officers/crew members of said Vessel AI Shahaba, in their voluntary statements also confirmed the activity of unloading the diesel oil from the mother vessel AI Shahaba into the barges. In connection with the aforesaid seizure, residential premises of one Bobby Chully as well as of detenu were raided. On the basis of said seizure and the material collected during the investigation, it came to fore that the detenu was involved in activities which amounted to smuggling as defined under Section 2(39) of the Customs Act, 1962. Detenu was arrested under Section 104.A Detention order under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act 1974 (COFEPOSA) was passed against him. Detenu, unfortunately, expired on 16.09.2010 i.e. during the pendency of his writ petition.
The Division Bench of Justice Suresh Kumar Kait and Justice Manoj Jain was considering a writ petition filed by the detenue's widow praying that such detention order be quashed.
After going through the facts of the case, the Bench noted that despite repeated attempts made by the concerned agencies and despite publication, detenu did not come forward. The Central Government prepared a report under Section 7(1)(a) of COFEPOSA which was placed before the Court of Chief Metropolitan Magistrate, Mumbai with request that Court may initiate further proceedings against him under Section 82 to 85 Cr.P.C.
One more factor which persuaded the Bench to hold that the detenu was in the thick of the things was that the sponsoring authority and executing authority made constant efforts to serve and execute the detention order but detenu, very conveniently, avoided the same. “We rather feel that detenu has acted smart and is trying to reap fruits of his own wrongs. If delay is attributed on account of the conduct of the detenu, concerned authorities cannot be blamed at all”, it said.
Moreover, there was nothing on record which might have indicated that activity of the detenu did not fall under 3(1)(i) of COFEPOSA. As per the investigation conducted by DRI, detenu was found to be the person who was directly involved in the smuggling and for organizing the finances as well as logistic and, therefore, detention order passed under Section 3(1)(i) of COFEPOSA was fully justified.
“We may also reiterate that detenu, when he was alive, could have easily prayed this Court for disposal of his writ petition on merit but he himself submitted that it be dismissed as withdrawn with liberty to raise all the issues in case of initiation of any proceedings under SAFEMA. Petitioner is not justified in asserting that the earlier writ petition was withdrawn on 16.08.2007, with liberty as sought for, as it could not reach for final hearing”, the Bench added.
The orders available on website rather indicated that at one earlier point of time the final arguments were heard on merits and the matter was even reserved for judgment. There was also nothing on record to infer that the detenu had withdrawn the petition as it could not reach final hearing. On the contrary, he himself had sought withdrawal.
“Indubitably, no one can be permitted to take advantage of his own wrongful conduct”, the Bench said.
Furthermore, on account of issuance of notice dated 01.01.2009, detenu was compelled to file Criminal Writ Petition before the Bombay High Court which was disposed of as the counsel for respondents had submitted that petitioner had merely been called upon to furnish certain information and no proceedings had been initiated under Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976.
After the demise of detenu, fresh summons and Notice in connection with proceedings under SAFEMA had been issued to his legal heirs where detenu has been referred as affected person no. 1 (AP-1) and his wife as affected person no. 2 (AP-2) and according to such notice, there are two immovable properties in possession of AP-2. His wife has, merely, been called upon to indicate the source of income or the means through which said two properties had been acquired. “In case, affected person is in a position to satisfactorily explain about the manner in which the properties were acquired, naturally, there might not be any adverse action of any kind under SAFEMA. Thus, the petitioner can always respond to such notice appropriately”, it said.
There was there was no material which would portray that the time lapse, between detention order and its execution, was as such as would lead to the inference that the live-link between the prejudicial activity of the detenu and the object of detention, namely, to prevent him from indulging in such prejudicial activity, stood snapped.
“Before parting, we may sate that SAFEMA was enacted to provide for the forfeiture of illegally acquired properties of smugglers and foreign exchange manipulators and for matters connected therewith or incidental thereto…The petitioner herein is always at liberty to agitate all contentions in such proceedings under SAFEMA and she would also be at liberty to agitate about the delay in initiation of such proceedings. We, however, wish to clarify that it may not be understood as if we have expressed any opinion, either way, on said aspect”, the Bench held while dismissing the petition.
Read Order: KARIMAN v. STATE OF CHHATISGARH [SC- CRIMINAL APPEAL NO(S). 2193 OF 2024]
Tulip Kanth
New Delhi, April 25, 2024: While observing that the appellant accused of killing his second wife had no motive to hurt her, the Supreme Court has modified his conviction from section 302 IPC to that under Part II of Sec.304.
The Division Bench of Justice B.R. Gavai and Justice Sandeep Mehta also expressed appreciation for able assistance provided by Senior Advocate Vijay Hansaria, acting as a free legal aid counsel on behalf of the appellant.
The Top Court took note of the fact that the special leave petition filed on behalf of the accused petitioner was delayed by 2461 days.
It was brought to the Court’s attention that the accused petitioner was prevented from filing the special leave petition in time because he was not aware regarding the legal procedure/ While being incarcerated in jail, the petitioner came to know about legal aid being provided by the Supreme Court Legal Services Committee and accordingly, a request was made on behalf of the petitioner to the Committee. In view of such facts, the Top Court condoned the delay.
The facts of this case were that the deceased Dasmet Bai was living with the appellant as his second wife. It was alleged that on September 11, 1999, the appellant assaulted Dasmet Bai by fists and stones and thereby caused her death. Budhram(PW-2), the uncle of the deceased Dasmet Bai lodged a report of the incident at the Kusmi Police Station on the very same day on the basis of which an FIR came to be registered against the appellant for the offence punishable under Section 302 IPC. The usual process of investigation was started.
Charge sheet was filed against the appellant after conclusion of investigation and the case upon committal was sent to the Court of Third Additional Sessions Judge on transfer. The accused was charged for the offence punishable under Section 302 IPC to which he pleaded not guilty and claimed trial.
Before the Top Court, the accused appellant challenged the judgment of the Chhattisgarh High Court whereby the order convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code, 1860 and sentencing him to imprisonment for life, was affirmed.
It was the appellant’s case that the Medical Jurist did not state in his evidence that the injury caused to Dasmet Bai(deceased) was sufficient in the ordinary course of nature to cause death. It was further urged that it was a case of a single injury being inflicted by the accused to the deceased during the course of a sudden quarrel without acting in a cruel manner and thus the charge, if any, against the accused couldn’t travel beyond Section 304 Part II of IPC.
It was also submitted that the appellant had already remained in custody for a period of almost 17 years and hence, while toning down the offence, suitable reduction in the sentence might be directed.
On the contrary, the State Counsel submitted that both knowledge as well as intention to cause death of the victim could be attributed to the accused-appellant.
The Bench opined that Budhram(PW-2), uncle of the deceased, did not utter a single word in his evidence that his niece who was living with the appellant was ever treated with cruelty by the accused. It was admitted by the witness in cross examination that both the accused as well as Dasmet Bai(deceased) used to consume liquor. It was thus apparent that the appellant had no motive to hurt the deceased and some sudden quarrel had flared up between the accused and Dasmet Bai(deceased) which led to the incident.
It was stated in the evidence of the eyewitnesses(PW-4, PW-5 and PW-6) that when the accused was chasing Dasmet Bai(deceased), he was unarmed. It was only after Dasmet Bai(deceased) had fallen down, that the accused picked up a stone lying nearby and gave a blow thereof to the deceased. PW-6 also admitted in her cross examination that Dasmet Bai(deceased) fell on the road with boulders and sustained injuries due to the fall on the ground.
As per the Medical Jurist, the cause of death was opined as shock due to internal bleeding. The Jurist did not express the opinion that the single injury caused to the deceased was sufficient to cause death in the ordinary course of nature.“Thus, by no stretch of imagination, can be it accepted that the accused had the intention to cause injury/injuries to the victim with the intention or knowledge that the same would result into her death”, the Bench said while adding that the act of the accused was not covered by any of the four clauses contained in Section 300 IPC.
It was observed that the act of the accused was covered under Part II of Section 304 IPC as the accused could at best be attributed with the knowledge that the injury of the nature which he inflicted upon Dasmet Bai(deceased) was likely to cause death but without any intention to cause death or to cause such bodily injury as was likely to cause death.
Thus, altering the conviction of appellant for the offence punishable under Section 302 IPC to that under Part II of Section 304 IPC, the Bench ordered that the appellant would undergo rigorous imprisonment for a period of seven years for the offence punishable under Section 304, Part II of IPC. However, considering the fact that the appellant had already undergone sentence for about 17 years, the Bench ordered that the appellant, who was in custody, be released forthwith, if his detention was not required in any other case.
Read Order: MAYA GOPINATHAN v. ANOOP S.B. & ANR [SC- CIVIL APPEAL NO. 5296 OF 2024]
Tulip Kanth
New Delhi, April 25, 2024: In the absence of any binding precedent regarding the aspect that for claim of return of stridhan articles or money equivalent thereof to succeed, the wife has to prove the manner of such acquisition, the Supreme Court has awarded Rs 25 lakh as financial re-compensation to a 50-year-old woman in a case of matrimonial dispute which was initiated in the year 2009.
The factual background of this case was such that the marriage of the appellant and the first respondent was solemnized according to Hindu customs in the year 2003. For both of them, it was their second marriage. While the appellant was a widow, the first respondent was a divorcee. According to the appellant, 89 sovereigns of gold were gifted to her by her family at the time of marriage. Additionally, after the wedding, the appellant’s father (P.W.2) made to the first respondent a sum of Rs 2 lakh through a demand draft. According to the appellant, on the first night of marriage, the first respondent took custody of all her jewellery and entrusted the same to the second respondent under the garb of safekeeping. It was also the case of the appellant that all such jewellery stood misappropriated by the respondents to discharge their pre-existing financial liabilities.
In course of time, owing to inter-se disputes and differences, the spouses drifted apart. In 2009, the appellant filed an original petition before the Family Court for the recovery of the value of jewellery, and the amount of Rs 2 lakh which was paid by P.W.2 to the first respondent. The appellant also filed a petition for dissolution of marriage. The respondents filed a counterclaim for Rs. 70,000 as the value of a gold ring and gold chain which the first respondent customarily gifted to the appellant during the wedding ceremony.
The Family Court while allowing the appellant to recover Rs 8,90,000 as the value of 89 sovereigns of gold from the respondents, also directed the first respondent to recompense to the appellant Rs 2 lakh with 6% interest per annum from the date of institution of the proceedings till realization within 3 months. The marriage between the parties was also dissolved and the counterclaim of the respondents as well.
When the matter reached the High court, while partly setting aside the relief granted by the Family Court, the High Court held that the appellant had not been able to establish misappropriation of gold jewellery by the respondents. However, the direction whereby the first respondent was asked to return Rs 2 lakh to the Appellant was upheld. The appellant had taken exception to this judgment in the present appeal before the Top Court.
At the outset, the Division Bench of Justice Sanjiv Khanna & Justice Dipankar Datta opined, “Having taken a close look at the materials on record and the conclusions drawn by the High Court on the basis thereof, we have little doubt in our mind that the impugned judgment is legally unsustainable.”
It was further explained by the Bench that in civil cases including matrimonial disputes of a civil nature, the standard of proof is not proof beyond reasonable doubt ‘but’ the preponderance of probabilities tending to draw an inference that the fact must be more probable. It was noticed that the appellant did not lodge any complaint of criminal breach of trust but by initiating civil proceedings, sought return of money equivalent to her stridhan property which stood lost forever.
As per the Bench, the High Court had attributed lack of bona fide on the part of the appellant solely on account of the petition being filed in 2009 although cohabitation of the spouses had ended in 2006 itself. In concluding so, the High Court erred to take into consideration the explanation proffered by the appellant and P.W.2 that substantial amount of time after separation was spent to attempt reconciliation and it was with the fervent hopes of such attempts at reconciliation succeeding that legal proceedings were not initiated.
“Matters of matrimony can rarely be said to be simple or straightforward; hence, human reaction as per a mechanical timeline before the sacred bond of marriage is severed is not what one would expect. Divorce, majorly, in Indian society is still considered a stigma, and any delay in commencement of legal proceedings is quite understandable because of the attempts made to have the disputes and differences resolved; more so, in a case of the present nature, when the appellant was faced with the imminent prospect of termination of her second marriage”, it added.
The Top Court stated, “…we have neither been shown nor do we know of any binding precedent that for a claim of return of stridhan articles or money equivalent thereof to succeed, the wife has to prove the mode and manner of such acquisition.”
Undisputedly, the appellant had brought to the matrimonial home sufficient quantum of jewellery, which she wore during the marriage and as the same was evidenced from photographs. Therefore, the High Court committed serious error in first doubting and then disbelieving the appellant’s version on the specious ground that documents proving acquisition thereof by P.W.2 had not been produced.
It was also observed that the avarice of the first respondent was evidenced by the acceptance of Rs 2 lakh, which would not have occasioned unless a demand were made to the appellant’s family. Acceptance of the said amount more than a year after the marriage, which was admitted by the first respondent, spoke volumes about his conduct.
On the issue of demand of the return of the ring and the gold chain, the Bench observed that it was rightly held by the Family Court that the first respondent could lay no claim over the same, since there was nothing to suggest that the jewellery was a gift merely temporary in nature, with its return being expected in future. The first respondent’s rapacious conduct, as glaringly evidenced in the counterclaim filed by him, afforded sufficient ground for the Family Court to draw adverse inference against him and the High Court patently fell in error in interfering with a well-written reasoned decision of the Family Court.
Considering that the appellants had established a stronger and more acceptable case, the Bench allowed the appeal. In view of the passage of time, the escalation in cost of living, and in the interest of equity and justice, the Top Court exercised its power conferred by Article 142 of the Constitution and asked the first respondent to pay Rs 25 lakh to the appellant within six months.
The Bench concluded the matter by saying, “We hope and trust that such financial recompense would provide to the appellant (presently aged 50 years), comfort and security for her future life.”
Read Order: RIGHT CHOICE MARKETING SOLUTIONS JLT & ORS v. STATE NCT OF DELHI & ANR [DEL HC- CRL.M.C. 6853/2022]
Tulip Kanth
New Delhi, April 24, 2024: The Delhi High Court has ruled that merely because the payee or holder in due course of a foreign cheque chooses to present the cheque in India out of malafide, the application of the provision of Section 138 of the Negotiable Instruments Act,1881 and the jurisdiction of the court where such cheque is deposited for payment, cannot be ousted.
The Single-Judge Bench of Justice Navin Chawla was considering a petition filed under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of the proceedings in the complaint under Section 138 of the Negotiable Instruments Act, 1881 filed by respondent no.2 herein.
The facts of the case were such that the petitioner no.1, an entity with its office in the United Arab Emirates (UAE) and the sales and marketing wing of Right Choice Builders Private Limited, was arrayed as accused no.6 in the complaint. It was stated that the accused no. 6 had established various branches and petitioner nos.2 and 3, along with others, who have been arrayed as accused nos. 4 and 5 in the complaint, are the common Directors of the Group.
It was alleged that in 2014, petitioner no.2 representing himself to be the Director of Right Choice Group of Companies, personally approached respondent no.2 for investment in the aforesaid entities, assuring him of high rates of return on investments. It was stated that respondent no.2 succumbed to the repeated follow-ups of the accused, and believing their representation of assured quarterly returns, invested an amount of Emirati Dirham (AED) 600,000 in favour of accused no.6 at its branch office in Dubai, by issuing multiple cheques. The said amount was invested on the assurance of return at the rate of 26.5% per annum.
It was asserted that in January 2016, when respondent no.2 called upon the accused at the head office at Pune, the petitioner nos.1 and 3, on express instructions from petitioner no.2, and accused nos.4 and 5, issued ten fresh post-dated cheques towards the repayment of interest to respondent no.2. However, when respondent no.2 presented the said cheques before the bankers, that is, National Bank of Abu Dhabi, and HSBC Bank, Middle East, those were returned dishonoured with the remarks "insufficient funds".
Respondent no.2 initiated criminal complaints against the accused with the Abu Dhabi Police for the dishonour of the ten cheques. The Abu Dhabi Courts of First Instance convicted petitioner no.3 and sentenced him with imprisonment. It was stated that the accused were not traveling to Dubai out of fear of being arrested.
Thereafter, respondent no.2 issued a legal notice through his counsel in Abu Dhabi. The said notice was addressed to the accused at its Dubai office as also the India office and was duly served on the India office. Terms of settlement were shared by the counsel for respondent no.2 however, the accused never responded to the same.
When respondent no.2 proceeded to present the cheque of the principal amount of AED 600,000 drawn on the bank, namely, Emirates NBD Bank Gold Branch, it was again dishonoured. Respondent no.2 thereafter issued Legal Demand Notice under Section 138 of the NI Act.
The Bench made it clear that the offence under Section 138 of the NI Act is deemed to have been committed at a place where a cheque is delivered for collection at the branch of the bank of the payee or holder in due course, and the offence shall be inquired into and tried only by a court within whose local jurisdiction, if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated.
In the present matter, the cheque was presented for payment by the respondent at Delhi. There was no prohibition of the cheque being deposited by the respondent no.2 for collection in Delhi. “Therefore, in terms of Section 142(2) of the NI Act, the Court at Delhi shall have jurisdiction to inquire into and try the offence under Section 138 of the NI Act”, the Bench said.
Moreover, due to the amendment in Section 142 of the NI Act, now the dishonour of the cheque, due to its presentation for payment at the bank of the respondent no.2 at Delhi, would be deemed to have taken place at Delhi. Though, Section 134 of the NI Act states that in absence of a contract to the contrary, the liability of the drawer of a foreign cheque is regulated in all essential matters by the law of the place where he made the cheque, the Bench opined that there is nothing in the said provision which would exclude the application of Section 138 of the NI Act read with Section 142 of the NI Act.
“Merely because the payee or holder in due course of a foreign cheque chooses to present the cheque in India out of malafide, the application of the provision of Section 138 of the NI Act and the jurisdiction of the court where such cheque is deposited for payment, cannot be ousted”, the Bench held.
It was the case of the Complainant/respondent no. 2 that the petitioner nos. 2 and 3 escaped from the jurisdiction of the Courts at Dubai and had come to India. It did not therefore, lie in the mouth of the petitioner nos. 2 and 3 to contend that the presentation of the cheque in India by the respondent no. 2 for encashment, was malafide. The petitioner nos.2 and 3 are also citizens of India, presently residing in India.
Referring to Section 4 of the CrPC, the Bench observed that offence under Section 138 of the NI Act is to be tried in accordance with the provisions of the Cr.P.C., subject to the provisions of the NI Act itself, including Section 142 of the NI Act.
“Therefore, reading Section 4 of the Cr.P.C. with Section 142 (2) of the NI Act, it must be held that the Courts in India (Delhi) where the cheque has been deposited for encashment, shall have the jurisdiction to adjudicate on the complaint for an offence under Section 138 of the NI Act, even though it is a foreign cheque”, the Bench Said.
Asserting that there was absolutely no reason supplied by the petitioners in the petition for the delay in approaching this Court, the Bench held that the unexplained delay itself is sufficient ground for this Court to refuse to exercise its inherent jurisdiction under Section 482 of the Cr.P.C. to quash the complaint at this belated stage.
Thus, finding no merit in the petition, the Bench dismissed the same.
Read Order: JYOTI DEVI v. SUKET HOSPITAL & ORS [SC- CIVIL APPEAL NO. 5256 OF 2024]
Tulip Kanth
New Delhi, April 24, 2024: Observing that the record ought to have been speaking of a pre-existing medical condition because of which the victim may have suffered ‘unusual damage’ in order to establish the applicability of Eggshell Skull Rule, the Supreme Court has upheld the order of the District Forum granting compensation of Rs 5 lakh to the claimant in a medical negligence case.
The claimant-appellant,Jyoti Devi, was admitted to Suket Hospital located in Himachal Pradesh on June 28, 2005 and had her appendicitis removed by a Senior Surgeon. Post surgery, she was discharged. However,she suffered continuous pains near the surgical site, as such she was admitted again but was discharged the next day with the assurance that no further pain would be suffered by her. She was further treated by another doctor on the reference of respondent no.2 herein. Yet again, there was no end to her suffering. This process continued for a period of four years.
The claimant - appellant eventually landed up for treatment at the Post Graduate Institute of Medical Science, Chandigarh. Upon investigation, it was found that a 2.5 cm foreign body (needle) “is present below the anterior abdominal wall in the region just medial to previous abdominal scar (Appendectomy)” for which a further surgery had to be performed for its removal.
Alleging negligence on the part of the respondent - Suket Hospital, a claim was brought for the “huge pain and spent money on treatment” totalling to Rs 19,80,000. The District Consumer Disputes Redressal Forum awarded a compensation for Rs.5,00,000. The respondents approached the H.P. State Consumer Disputes Redressal Commission where they were asked to pay Rs 1 lakh to the complainant. The National Consumer Disputes Redressal Commission, in revision, applied the egg-skull rule to hold an individual liable for all consequences of their act. The compensation awarded by the State Commission was enhanced to Rs 2 lakh.
Hence, the claimant-appellant preferred an appeal before the Top Court seeking enhancement of compensation. The present dispute arose within the contours of the Consumer Protection Act, 1986, the predecessor legislation to the current Consumer Protection Act, 2019.
“The factum of negligence on the part of the respondent Hospital as well as respondent No.2 has not been doubted, across fora”, the Division Bench of Justice Sanjay Karol and Justice Aravind Kumar asserted.
Referring to J.J. Merchant (Dr) v. Shrinath Chaturvedi [LQ/SC/2002/799] and Common Cause v. Union of India [LQ/SC/1993/15], the Bench opined that the Consumer Protection Act is a benevolent, socially orientated legislation, the declared aim of which is aimed at protecting the interests of consumers. Various fora have been formed to save the aggrieved consumer from the hassle of filing a civil suit, i.e., provide for a prompt remedy in the nature of award or where appropriate, compensation, after having duly complied with the principles of natural justice.
It was further observed that in determining compensation in cases of medical negligence, a balance has to be struck between the demands of the person claiming compensation, as also the interests of those being made liable to pay
The Bench also explained the Eggshell Skull Rule which holds the injurer liable for damages that exceed the amount that would normally be expected to occur. It is a common law doctrine that makes a defendant liable for the plaintiff's unforeseeable and uncommon reactions to the defendant's negligent or intentional tort.
“In simple terms, a person who has an eggshell skull is one who would be more severely impacted by an act, which an otherwise “normal person” would be able to withstand. Hence the term eggshell to denote this as an eggshell is by its very nature, brittle. It is otherwise termed as “taking the victim as one finds them” and, therefore, a doer of an act would be liable for the otherwise more severe impact that such an act may have on the victim”, it said.
On the facts of the case, the Bench found that the manner in which compensation stood reduced by the State Commission as also the NCDRC, vis-à-vis the District Forum to be based on questionable reasoning. “How could such compensation be justified, after observations having been made regarding the service rendered by the Hospital, being deficient, and the continuous pain and suffering on the part of the claimant-appellant, is something we fail to comprehend. Compensation by its very nature, has to be just. For suffering, no part of which was the claimant-appellant’s own fault, she has been awarded a sum which can, at best, be described as ‘paltry’”, it said.
The impugned judgment was also silent as to how the Eggshell-Skull Rule applied to the present case.The record ought to have been speaking of a pre-existing vulnerability or medical condition, because of which the victim may have suffered ‘unusual damage’. However, none of the orders - be it District, State Commission or the NCDRC referred to any such condition.
Thus, setting aside the Awards of the NCDRC as also the State Commission and restoring the Award as passed by the District Forum, the Bench ordered that a sum of Rs 5 lakh ought to be paid expeditiously by the respondents to the appellant for being medically negligent and providing services deficient in nature. The sum of Rs 5 lakh is also accompanied by interest simple in nature @ 9% from the date of the award passed by the District Forum. Additionally, the Bench also imposed a cost of Rs.50,000 to be paid in terms of the cost of litigation.
Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
Validity & Existence of an Arbitration Clause in an Unstamped Agreement
By Kunal Kumar
January 8, 2024
In a recent ruling, a seven-judge bench of the Supreme Court of India in its judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, overruled the constitutional bench decision of the Supreme Court of India in N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. and has settled the issue concerning the validity and existence of an arbitration clause in an unstamped agreement. (‘N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III’)
Background to N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
One of the first instances concerning the issue of the validity of an unstamped agreement arose in the case of SMS Tea Estate Pvt. Ltd. v. Chandmari Tea Company Pvt. Ltd. In this case, the Hon’ble Apex Court held that if an instrument/document lacks proper stamping, the exercising Court must preclude itself from acting upon it, including the arbitration clause. It further emphasized that it is imperative for the Court to impound such documents/instruments and must accordingly adhere to the prescribed procedure outlined in the Indian Stamp Act 1899.
With the introduction of the 2015 Amendment, Section 11(6A) was inserted in the Arbitration & Conciliation Act 1996 (A&C Act) which stated whilst appointing an arbitrator under the A&C Act, the Court must confine itself to the examination of the existence of an arbitration agreement.
In the case of M/s Duro Felguera S.A. v. M/s Gangavaram Port Limited, the Supreme Court of India made a noteworthy observation, affirming that the legislative intent behind the 2015 Amendment to the A&C Act was necessitated to minimise the Court's involvement during the stage of appointing an arbitrator and that the purpose embodied in Section 11(6A) of A&C Act, deserves due acknowledgement & respect.
In the case of Garware Wall Ropes Ltd. v. Cosatal Marine Constructions & Engineering Ltd., a divisional bench of the Apex Court reaffirmed its previous decision held in SMS Tea Estates (supra) and concluded that the inclusion of an arbitration clause in a contract assumes significance, emphasizing that the agreement transforms into a contract only when it holds legal enforceability. The Apex Court observed that an agreement fails to attain the status of a contract and would not be legally enforceable unless it bears the requisite stamp as mandated under the Indian Stamp Act 1899. Accordingly, the Court concluded that Section 11(6A) read in conjunction with Section 7(2) of the A&C Act and Section 2(h) of the Indian Contract Act 1872, clarified that the existence of an arbitration clause within an agreement is contingent on its legal enforceability and that the 2015 Amendment of the A&C Act to Section 11(6A) had not altered the principles laid out in SMS Tea Estates (supra).
Brief Factual Matrix – N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
Indo Unique Flame Ltd. (‘Indo Unique’) was awarded a contract for a coal beneficiation/washing project with Karnataka Power Corporation Ltd. (‘KPCL’). In the course of the project, Indo Unique entered into a subcontract in the form of a Work Order with N.N. Global Mercantile Pvt. Ltd. (‘N.N. Global’) for coal transportation, coal handling and loading. Subsequently, certain disputes arose with KPCL, leading to KPCL invoking Bank Guarantees of Indo Unique under the main contract, after which Indo Unique invoked the Bank Guarantee of N. N. Global as supplied under the Work Order.
Top of FormS
Subsequently, N.N. Global initiated legal proceedings against the cashing of the Bank Guarantee in a Commercial Court. In response thereto, Indo Unique moved an application under Section 8 of the A&C Act, requesting that the Parties to the dispute be referred for arbitration. The Commercial Court dismissed the Section 8 application, citing the unstamped status of the Work Order as one of the grounds. Dissatisfied with the Commercial Court's decision on 18 January 2018, Indo Unique filed a Writ Petition before the High Court of Bombay seeking that the Order passed by the Commercial Court be quashed or set aside. The Hon’ble Bombay High Court on 30 September 2020 allowed the Writ Petition filed by Indo Unique, aggrieved by which, N.N. Global filed a Special Leave Petition before the Supreme Court of India.
N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. – I
The issue in the matter of M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unqiue Flame Ltd. & Ors. came up before a three-bench of the Supreme Court of India i.e. in a situation when an underlying contract is not stamped or is insufficiently stamped, as required under the Indian Stamp Act 1899, would that also render the arbitration clause as non-existent and/or unenforceable (‘N.N. Global Mercantile Pvt. Ltd. v. Indo Flame Ltd. – I’).
The Hon’ble Supreme Court of India whilst emphasizing the 'Doctrine of Separability' of an arbitration agreement held that the non-payment of stamp duty on the commercial contract would not invalidate, vitiate, or render the arbitration clause as unenforceable, because the arbitration agreement is considered an independent contract from the main contract, and the existence and/or validity of an arbitration clause is not conditional on the stamping of a contract. The Hon’ble Supreme Court further held that deficiency in stamp duty of a contract is a curable defect and that the deficiency in stamp duty on the work order, would not affect the validity and/or enforceability of the arbitration clause, thus applying the Doctrine of Separability. The arbitration agreement remains valid and enforceable even if the main contract, within which it is embedded, is not admissible in evidence owing to lack of stamping.
The Hon’ble Apex Court, however, considered it appropriate to refer the issue i.e. whether unstamped instrument/document, would also render an arbitration clause as non-existent, unenforceable, to a constitutional bench of five-bench of the Supreme Court.
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II
On 25 April 2023, a five-judge bench of the Hon’ble Supreme Court of India in the matter of N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. held that (1) An unstamped instrument containing an arbitration agreement cannot be said to be a contract which is enforceable in law within the meaning of Section 2(h) of the Indian Contract Act 1872 and would be void under Section 2(g) of the Indian Contract Act 1872, (2) an unstamped instrument which is not a contract nor enforceable cannot be acted upon unless it is duly stamped, and would not otherwise exist in the eyes of the law, (3) the certified copy of the arbitration agreement produced before a Court, must clearly indicate the stamp duty paid on the instrument, (4) the Court exercising its power in appointing an arbitration under Section 11 of the A&C Act, is required to act in terms of Section 33 and Section 35 of the Indian Stamp Act 1899 (N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II).
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
A seven-judge bench of the Supreme Court of India on 13 December 2023 in its recent judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, (1) Agreements lacking proper stamping or inadequately stamped are deemed inadmissible as evidence under Section 35 of the Stamp Act. However, such agreements are not automatically rendered void or unenforceable ab initio; (2) non-stamping or insufficient stamping of a contract is a curable defect, (2) the issue of stamping is not subject to determination under Sections 8 or 11 of the A&C Act by a Court. The concerned Court is only required to assess the prima facie existence of the arbitration agreement, separate from concerns related to stamping, and (3) any objections pertaining to the stamping of the agreement would fall within the jurisdiction of the arbitral tribunal. Accordingly, the decision in N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II and SMS Tea (supra) was overruled, by the seven-judge bench of the Supreme Court of India.
Kunal is a qualified lawyer with more than nine years of experience and has completed his LL.M. in Dispute Resolution (specialisation in International Commercial Arbitration) from Straus Institute for Dispute Resolution, Pepperdine University, California.
Kunal currently has his own independent practice and specializes in commercial/construction arbitration as well as civil litigation. He has handled several matters relating to Civil Law and arbitrations (both domestic and international) and has appeared before the Supreme Court of India, High Court of Delhi, District Courts of Delhi and various other tribunals.
No Safe Harbour For Google On Trademark Infringement
By Mayank Grover & Pratibha Vyas
October 9, 2023
Innovation, patience, dedication and uniqueness culminate in establishing a distinct identity. A trademark aids in identifying the source and quality, shaping perceptions about the identity's essence. When values accompany a product or service's trademark, safeguarding against misuse and infringement becomes crucial. A recent pronouncement of a Division Bench of the Delhi High Court dated August 10, 2023 in Google LLC v. DRS Logistics (P) Ltd. & Ors. and Google India Private Limited v. DRS Logistics (P) Ltd. & Ors. directed that Google’s use of trademarks as keywords for its Google Ads Programme does amount to ‘use’ in advertising under the Trademarks Act and the benefit of safe harbour would not be available to Google if such keywords infringe on the concerned trademark.
Factual Background
Google LLC manages and operates the Google Search Engine and Ads Programme, while, Google India Private Limited is a subsidiary of Google that has been appointed as a non-exclusive reseller of the Ads Programme in India. The Respondents, DRS Logistics and Agarwal Packers and Movers Pvt. Ltd. are leading packaging, moving and logistics service providers in India.
On 22.12.2011, DRS filed a suit against Google and Just Dial Ltd. under provisions of the Trademarks Act, 1999 (‘TM Act’) inter alia seeking a permanent injunction against Google from permitting third parties from infringing, passing off etc. the relevant trademarks of DRS. The core of the dispute revolved around Google’s Ads Programme. DRS claimed that its trade name 'AGARWAL PACKERS AND MOVERS' is widely recognized and a 'well-known' trademark. Use of DRS’s trademark as a keyword diverts internet traffic from its website to that of its competitors and they were entitled to seek restraint against Google for permitting third parties who are not authorized to use the said trademark. DRS further argued that Google benefits from these trademark infringements. This practice involved charging a higher amount for displaying these ads, constituting an infringement of their trademarks. Whereas, Google contended that the use of the keyword in the Ads Programme does not amount to ‘use’ under the TM Act notwithstanding that the keyword is/or similar to a trademark. Thus, the use of a term as a keyword cannot be construed as an infringement of a trademark under the TM Act, and being an intermediary, it claimed a safe harbour under Section 79 of the Information Technology Act, 2000. (‘IT Act’).
In essence, the dispute between the parties was rooted in DRS’s grievance concerning the Ads Programme. The Learned Single Judge vide judgment dated 30.10.2021interpreted relevant provisions of the TM Act and drew on multiple legal precedents to arrive at the decision that DRS can seek protection of its trademarks which were registered under Section 28 of the TM Act and issued directions to investigate complaints alleging the use of trademark and/or to ascertain whether a sponsored result has an effect of infringing a trademark or passing off.
Being aggrieved, Google LLC and Google Pvt. Ltd. filed appeals before the Division Bench. Google LLC argued that the Single Judge’s findings were erroneous and the directions issued were liable to be set aside. Google India claimed that it doesn’t control and operate the Search Engine and the Ads Programme making it unable to comply with the directions passed in the impugned judgment.
Analysis & Decision of Court
The Division Bench found Single Judge’s rationale for assessing trademark infringement through keywords and meta-tags valid. Meta-tags are a list of words/code in a website, not readily visible to the naked eye. It serves as a tool for indexing the website by a search engine. If a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves similar purpose. The Division Bench was unable to accept that using a trademark as a keyword, even if not visible, would not be considered trademark use under the TM Act.
Google placed heavy reliance on the decisions rendered by Courts across jurisdictions of United Kingdom, United States of America, European Union, Australia, New Zealand, Russia, South Africa, Canada, Spain, Italy, Japan and China; in the cases of Google France SARL and Google Inc. v. Louis Vitton SA & Ors.[1], Interflora Inc. v. Marks & Spencer Plc.[2], and L’Oreal SA v. eBay International AG[3] in support of the contention that the use of trade marks is by the advertiser and not by Google. However, the Division Bench rejected Google’s passive role; highlighting its active involvement in recommending and promoting trademark keywords for higher clicks in its Ads Programme. Division Bench referred to a few judicial decisions rendered in the United States of America that captured the essence of the controversy for perspective, concluding that Google actively promotes and encourages trademarks associated with major goods and services, rather than having a passive role.
It was held that the contention that the use of trademarks as keywords, per se constitutes an infringement of the trademark is unmerited; the assumption that an internet user is merely searching the address of the proprietor of the trademark when he feeds in a search query that may contain a trademark, is erroneous.
The Doctrine of 'Initial Interest Confusion' addresses trademark infringement based on pre-purchase confusion. The doctrine is applied when meta-tags, keywords, or domain names cause initial confusion similar to a registered trademark. If users are misled to access unrelated websites, trademark use in internet advertising may be actionable and reliance was placed on US precedents. Referring to Section 29 of the TM Act, it was directed that Section 29 does not specify the duration for which the confusion lasts but, even if the confusion is for a short duration and an internet user is able to recover from the same, the trade mark would be infringed and would offend Section 29(2) of the TM Act.
It was held that the Ads Programme is a platform for displaying advertisements. Google, being an architect and operator of its own programme makes it an active participant in the use of trademarks and determining the advertisements displayed on search pages. Their use of proprietary software makes them utilize trademarks and control the distribution of information related to potentially infringing links, ultimately leading to revenue maximization. Hence, a substantial link exists between Google LLC and Google India, rendering it impossible for Google India to deny its role in operating the Ads Programme. It was further held that Google sells trademarks as keywords to advertisers and encourages users to use trademarks as keywords for ads. It is contradictory for Google to encourage trademark use while claiming data belongs to third parties for exemption. After 2004, Google changed policies to boost revenue and subsequently, introduced a tool that searches effective terms, including trademarks. Google's active involvement in its advertising business and online nature does not necessarily qualify it for benefits under Section 79 of the IT Act. The Division Bench agreed with the view of the Single Judge that Google would not be eligible for protection of safe harbour under Section 79(1) of the IT Act, if its alleged activities infringe trademarks.
Conclusion
This is a seminal decision governing (and rather, restricting) the operations of intermediaries and redefining the jurisprudence of safe harbour under the IT Act. The decision is well-reasoned and establishes a significant precedent for safeguarding trademarks by uniquely holding Google accountable under its Ads Programme. The same will prevent usage of tradenames as a third-party trademark in keyword search or metatags by advertisers on Google’s search engine. While keywords and meta-tags have different levels of visibility, their purpose is similar i.e. advertising and attracting internet traffic. The use of trademarks as meta-tags by a person who is neither a proprietor of the trademark nor permitted to use the same leads to confusion amongst public at large due to the automated processes of search engines and consequently, constitutes trademark infringement.
About the Authors: Mayank Grover is a Partner and Pratibha Vyas is an Associate at Seraphic Advisors, Advocates & Solicitors
[1] C-236/08 to C-238/08 (2010) [2011] All ER (EC) 41
[2] [2014] EWCA Civ 1403
[3] 2C- 324/09 (2010)
Environment and Sustainable Development – A Balanced Approach - Nayan Chand Bihani
The debate between protection of the environment and sustainable development is an age old one and is growing in proportion with every passing day all over the world, in general and specifically with respect to developing countries like India, in particular.
The Stockholm Declaration on the Human Enviornment,1972 categorically stated that man is both the creator and the moulder of his environment, which gives him physical sustenance and affords him the opportunity of intellectual, moral, social and spiritual growth. In the long run and tortuous evolution of the human race on this planet a stage has been reached when through the rapid acceleration of science and technology man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspect of man’s environment, the natural and the man-made, are essential to his wellbeing and to the enjoyment of basic human rights-even the right to life itself. It also states that the protection and improvement of the human environment is a major issue which affects the wellbeing of peoples and economic development throughout the world, it is the urgent desire of the people of the whole world and the duty of all the Governments. The Declaration, in Principle 2, states that the natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural eco-systems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. It further, in Principle 8, states that economic and social development is essential for ensuing a favourable living and working environment for man and for creating conditions on earth that are necessary for the improvement of the quality of life.
A milestone in this field is the Rio Declaration on Environment and Development, 1992. It, interalia, states that human beings are at the centre of concern for sustainable development and that they are entitled to a healthy and productive life in harmony with nature. It also states that the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. It states that in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it and that to achieve sustainable development and a higher quality of life for their people, States should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies. It contemplates that the States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply. The Declaration states that in order to protect the environment, the precautionary approach shall be widely applied by the states according to their capabilities and that environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.
Initially, the trend was to use ‘Polluter Pays’ principle and punish the offending unit. Subsequently, vide judicial decisions, the principle of sustainable development was widely applied so as to balance the two principles.
The Polluter Pays principle talks about the liability of the polluter. With the increase in the industrial development what subsequently also increased is the waste emitted out of these industries and as a result of these wastes not only were the immediate surroundings adversely affected but also the environment at large. There is no specific definition of the Polluter Pays principle, rather it is a practice emphasising on the fact that one who pollutes the environment should be held accountable and responsible for the same with consequential steps to be taken. The principle not just focuses on punishing the polluter but its main criterion is to ensure that the polluted environment returns back to its original state. The reason behind it is to promote ‘Sustainable Development’. Thus it can be summed up that Polluter Pays principle is an essential element of sustainable development. Therefore, whosoever causes pollution to the environment will have to bear the cost of its management. The principle imposes a duty on every person to protect the natural environment from pollution or else he will be responsible for the cost of the damage caused to the environment. The main reason behind imposing a cost is two folds. Firstly, to refrain any person from polluting the environment and secondly, if in the case there is pollution then it is the polluter’s duty to undo the damage. Hence, both of the above ensures that there should be sustainable development. It is pertinent to mention that the Polluter Pays principle is not a new concept. It was first referred to in 1972 in a Council Recommendation on Guiding Principles Concerning the International Economic Aspects of Environmental Policies of the Organisation for Economic Co-operation and Development. The same is also enshrined in Principle 16 of the Rio Declaration, which states that ‘the polluter, in principle, bear the cost of pollution.’ The need of the hour is a demonstrable willingness to adhere to the essence of the principle in order to ensure that there is development, but not at the cost of causing environmental degradation.
The Hon’ble Supreme Court of India in the case of Indian Council for Enviro-legal Action vs Union of India reported in LQ/SC/1996/358, interalia, putthe absolute liability upon the polluter for the harm caused to the environment.
The Hon’ble Supreme Court of India in the case of Vellore Citizens Welfare Forum vs Union of India, reported in LQ/SC/1996/1368, interalia, accepted the Polluter Pays Principle as a part of the Article 21 of the Constitution of India and also emphasised Article 48A and Article 51A(g) of the Constitution of India.
The Hon’ble Supreme Court of India in the case of Amarnath Shrine reported in LQ/SC/2012/1121, has categorically stated the right to live with dignity, safety and in a clean environment.Article 21 of the Constitution of India, guaranteeing the right to life is ever widening and needs to maintain proper balance between socio-economic security and protection of the environment.
The Hon’ble Apex Court in the case of Bombay Dyeing and Manufacturing Co Ltd- vs – Bombay Environmental Action Group reported in LQ/SC/2006/206, interalia, states that the consideration of economic aspects by Courts cannot be one and it depends on the factors of each case. However, strict views ought to be taken in cases of town planning and user of urban land so as to balance the conflicting demands of economic development and a decent urban environment. Ecology is important but other factors are no less important and public interest will be a relevant factor.
The Hon’ble Supreme Court in the case of Dahanu Taluka Environment Protection Group –vs- Bombay Suburban Electricity Supply Company Ltd reported in LQ/SC/1991/157, has held that it is primary for the Government to consider importance of public projects for the betterment of the conditions of living of people on one hand and necessity for preservation of social and ecological balance, avoidance of deforestation and maintenance of purity of atmosphere and water from pollution and the role of the Courts is restricted to examine the whether the Government has taken into account all the relevant aspects and has not ignored any material condition.
The Hon’ble Supreme Court of India in the case of Narmada BachaoAndolan vs Union of India reported in LQ/SC/2000/1509, interalia, reiterated the Polluter Pay Principle.
A milestone case is that of M C Mehta vs Union of India reported in LQ/SC/2004/397, wherein the Hon’ble Supreme Court explained the Precautionary principle and the principle of Sustainable Development. It was, interalia, stated that the development needs have to be met but a balance has to be struck between such needs and the environment. The Hon’ble Supreme Court also reiterated similar views in a series of cases, some of which are stated hereinbelow;
LQ/SC/2007/1421
- M C Mehta vs Union of IndiaLQ/SC/2009/1231
- Tirpur Dyeing Factory Owners Association vs Noyyal River Ayacutdars Protection Association &Ors.LQ/SC/2009/1891
An interesting question came up before the Hon’ble Supreme Court with regard to the setting up of nuclear power plants with regard to the possibility of considerable economic development weighed against risk of feared radiological hazard. The Hon’ble Apex Court in the case of G.Sundarrajan –vs- Union of India reported in LQ/SC/2013/536, interalia, held that the Courts will be justified to look into the aspect as to the opinions of experts and the adequacy of safety measures and will be justified to look into the safety standards being followed by the Nuclear Power Plant.
The Hon’ble Supreme Court, in the case of Lal Bahadur vs State of UP reported in LQ/SC/2017/1384, interalia, emphasised the importance of striking a balance between the two principles.
An important development is the advent of the National Green Tribunal which has the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and relates to the Acts specified in Schedule I, namely the Water (Prevention and Control of Pollution) Act, 1974, the Water(Prevention and Control of Pollution) Cess Act, 1977, the Forest Conservation Act, 1980, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public Liability Insurance Act, 1991 and the Biological Diversity Act, 2002. The National Green Tribunal, since its inception, has been looking into the aspects of environmental pollution and the mitigation thereof.
It can thus be said that both the environment and development are essential in the modern world for the betterment and living standards of the people. However, rampant and unplanned development at the cost of the environment is not to be entertained and the Courts will keep a close watch into the aspect of sustainable development, interalia, based on the criteria and guidelines, as specified.
Nayan Chand Bihani is a practising advocate at Calcutta High Court. Mr. Bihani pursued his LL.B from the Calcutta University College of Law, Hazra Campus and was enrolled as an Advocate in December,1998. Mr. Bihani deals mainly with Writ petitions, specially in Environmental laws, Election laws, Educational laws, Municipal laws, Service laws and Public Interest Litigations. He also represents several authorities like the West Bengal State Election Commission, the West Bengal Pollution Control Board, the State of West Bengal, several Educational Institutions and Universities and several Municipalities and Municipal Corporations and the Odisha Pollution Control Board. He can be contacted at nayanbihani@gmail.com.
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