Read Order: Sivamani and Anr V. State Represented by Inspector of Police, Vellore Taluk Police Station, Vellore District
Chahat Varma
New Delhi, November 29, 2023: The Supreme Court has reduced the conviction of two appellants in an attempt to murder case, finding that the evidence did not support a conviction under Section 307 of the Indian Penal Code (IPC).
The presented appeal challenged the final order and judgment, passed by the Madras High Court, wherein the High Court had confirmed the appellants' conviction under Section 307 of the IPC and the imposition of a fine of Rs.1000 each. However, it reduced the original sentence of 10 years rigorous imprisonment to 5 years.
In the said case, the prosecution's case involved an alleged dispute between the Complainant/PW1 and Accused No.1, which stemmed from a civil case concerning a lane between their houses. It was claimed that there was enmity between the parties due to this dispute. The prosecution detailed an incident where Accused No.1, instigated by the appellants and other accused, allegedly assaulted PW1 in his grocery shop. The appellants were subsequently caught by villagers and handed over to the police.
The defence argued that the convictions under Section 307 of the IPC were not justified as the injuries were found to be simple in nature and not on any vital part of the body. It was also contended that there was no intention to kill, no pre-planning, and the injuries sustained were not severe, suggesting that the appellants should have been tried under lesser charges such as Sections 323 and 324 of the IPC.
However, the State's counsel argued that the appellants, armed with knives, demonstrated a clear intention to kill, and it was only by providence that the lives of the victims were saved.
The division bench of Justice Vikram Nath and Justice Ahsanuddin Amanullah referred to the case of State of Madhya Pradesh v Saleem [LQ/SC/2005/681], wherein the court had held that to sustain a conviction under Section 307, IPC, it was not necessary that a bodily injury capable of resulting in death should have been inflicted. As such, non-conviction under Section 307, IPC on the premise only that simple injury was inflicted did not follow as a matter of course. In the same judgment, it was pointed out that "…The court had to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section."
The bench also noted that while grievous or life-threatening injury was not necessary to maintain a conviction under Section 307, IPC, the intention of the accused could be ascertained from the actual injury, if any, as well as from surrounding circumstances. Among other things, the nature of the weapon used and the severity of the blows inflicted could be considered to infer intent.
After careful consideration of the case's facts, circumstances, and the arguments presented by both parties, the bench was convinced that the impugned judgment of the High Court needed intervention. It was noted that there was no allegation of repeated or severe blows, and the injuries sustained by victims were simple in nature, favouring the appellants.
In conclusion, the impugned judgment was varied only to the extent that the conviction of the appellants stood modified to that under Sections 323 and 324 of the IPC, and the sentence imposed was reduced to the period already undergone. The fine imposed was maintained.
Accordingly, the present appeal was disposed of.
Read Order: Jaiveer Singh and Others V. The State of Uttarakhand and Others
Chahat Varma
New Delhi, November 29, 2023: In a significant decision, the Supreme Court has ruled that the 18-month Diploma in Elementary Education (D.El.Ed.) conducted through the Open and Distance Learning (ODL) mode by the National Institute of Open Schooling (NIOS) is not a valid qualification for applying against the regular posts of Assistant Teachers (Primary) in the State of Uttarakhand.
The judgment comes in response to a series of appeals challenging an order of the Uttarakhand High Court, which had ruled that the 18-month D.El.Ed. was equivalent to the 2-year regular D.El.Ed. and was therefore a valid qualification for the posts of Assistant Teachers (Primary).
The division bench of Justice B.R. Gavai and Justice Prashant Kumar Mishra however, disagreed with the High Court's ruling. The Court held that the 18-month D.El.Ed. was introduced as a one-time window for in-service teachers to acquire the minimum qualifications between the Right of Children to Free and Compulsory Education (Amendment) Act, 2017 and the outer limit of 1st April 2019.
The bench further remarked that the government cannot amend or override statutory rules through administrative instructions. However, if the rules are silent on a specific matter, the government has the authority to fill in the gaps and supplement the rules by issuing instructions, provided these instructions are not inconsistent with the existing rules
The bench held that even if the 18 months D.El.Ed. Diploma by NIOS through ODL mode was assumed to be equivalent to the 2 years Diploma in Elementary Education, the State cannot be prohibited from prescribing minimum qualifications that are higher than that. This was supported by the decision in the case of S. Satyapal Reddy and Others v. Govt. of A.P. and Others [LQ/SC/1994/506], where the court had emphasized the power of the Governor under proviso to Article 309 of the Constitution to make rules regulating recruitment, including the prescription of qualifications for appointment to an office or post under the State.
In light of this, the bench found that the High Court had erred in directing the State Government to consider the candidates who did not qualify as per the Uttarakhand Government Elementary Education (Teacher) Service Rules 2012 and as per the advertisement based on the Service Rules, especially when the 2012 Service Rules and the advertisements were not under challenge. It was held that the High Court could not have issued such a mandamus contrary to such Service Rules.
The bench also referred to the case of Devender Bhaskar and Others v. State of Haryana and observed that prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It emphasized that it is not for courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the authority.
The Court found that the High Court erred in holding that the 18-month Diploma conducted by NIOS through the ODL mode was equivalent to the 2 years regular Diploma. It was emphasized that there was no material placed on record to support such a conclusion, particularly in regard to the recommendation of such a qualification by the Expert Body NCTE. Additionally, the communication dated 6th September 2019 of NCTE, the directives of MHRD, and the recognition order dated 22nd September 2017 all indicated that the 18-month Diploma was provided as a one-time window for in-service teachers to acquire the minimum qualifications between the 2017 Amendment Act and the outer limit of 1st April 2019.
Consequently, the Court allowed the appeals, the impugned judgment and order dated 14th September 2022 passed by the Uttarakhand High Court were quashed and set aside, and the writ petitions filed by the original writ petitioners were dismissed.
Read Order: Pavnesh Kumar V. Union of India & Ors
Chahat Varma
New Delhi, November 29, 2023: The Supreme Court has upheld the Border Security Force's (BSF) decision to declare a constable medically unfit for promotion to the post of Sub-Inspector (GD) through Limited Departmental Competitive Examination (LDCE) 2018-19.
Briefly stated, the appellant, who was working as a constable with the BSF, had applied for the post of Sub-Inspector General Duty (GD) through LDCE. However, he was declared medically unfit for the position, and even a review medical examination by a Board of three doctors upheld this decision. The appellant, dissatisfied with being declared medically unfit for the position, filed a writ petition before the Delhi High Court seeking the quashing of the medical result of the review examination and a direction to the respondent BSF to treat him as medically fit. Unfortunately for the appellant, the High Court dismissed the said writ petition.
The counsel for the appellant argued that despite initially being found medically fit on 16.12.2019 after a small surgery, the appellant was subsequently declared medically unfit on 23.12.2019. This decision was upheld in a review medical examination on 27.02.2020. It was contended that the BSF lacked the authority to reconsider his fitness status after initially finding him fit.
The division bench, comprising of Justice Abhay S. Oka and Justice Pankaj Mithal, held that the appellant's argument, asserting that he was declared medically fit on 16.12.2019 and, therefore, the subsequent declaration of unfitness was not justified, lacked merit. The bench clarified that the appellant was never declared medically fit for the post of Sub-Inspector (GD) through LDCE. While the appellant underwent routine annual medical check-ups as a constable and was declared in medical category SHAPE-I, this was merely an eligibility condition for applying to the Sub-Inspector (GD) post through LDCE.
The bench opined that the appellant did not qualify in the detailed medical examination (stage-V) for the Sub-Inspector (GD) post, which took place on 23.12.2019. Despite the appellant undergoing a minor surgery for the reported medical deficiencies, the subsequent review medical examination by a board of three members upheld the decision of unfitness. The bench emphasized that the appellant's medical examination on 16.12.2019 was part of routine annual check-ups and not a component of the LDCE selection process for the Sub-Inspector (GD) post. Therefore, the appellant did not successfully qualify all five stages of the examination as advertised for the Sub-Inspector (GD) post through LDCE.
Further, the appellant raised the argument, that the appointment through LDCE was akin to a fast-track promotion and not a fresh appointment. Hence, the contention was that the recruitment rules and guidelines applicable to the normal mode of promotion should have been applied, and there should not be different medical standards.
However, the bench observed that the appointment through LDCE was considered an accelerated promotion but concluded that it cannot be equated with the normal mode of promotion. The bench pointed out that the advertisement itself unequivocally stated that applications were invited for selection to the post of Sub-Inspector (GD) in BSF through LDCE, which implied that it was not a normal promotion but rather a selection to the higher post from among the eligible candidates working on the lower post. Consequently, the bench rejected the submission that the normal rules of promotion or medical examination should have been applied in this case.
Furthermore, the bench observed that the selection process was to be conducted in accordance with the terms specified in the advertisement. The selection scheme outlined in the advertisement explicitly mandated clearing the examination in all five stages, including the detailed medical examination.
In light of the presented facts and circumstances, the Court found no merit in the appeal. The appellant's medical condition had not undergone any review, and the declaration of him being ‘medically unfit’ was not in contradiction to any previous assessments because he had never been declared medically fit during the examination process for the selection to the position of Sub-Inspector (GD) through LDCE.
Thus, the judgment and order of the High Court, which dismissed the writ petition and upheld the decision of the Medical Board declaring the appellant as medically unfit, were considered free from any legal or factual errors.
Read Order: Ashutosh Bansal V. Union of India & Ors
Chahat Varma
New Delhi, November 29, 2023: In a positive development for animal welfare, the Supreme Court has acknowledged the efforts taken by various states to prevent and control the spread of Lumpy Skin Disease (LSD) among cattle.
The Court's decision came in response to a petition filed by a social activist seeking a writ of mandamus directing the Government of India to take more comprehensive measures to protect cows and cattle from LSD. The petitioner had also requested the Court to mandate the formulation of policies addressing the spread of LSD and promoting sustainable programs for indigenous cows.
On 31.10.2022, a notice was issued to the Government of India with the specific purpose of ascertaining whether the Union of India had developed a National Health Plan to prevent and address the epidemic of Lumpy Skin Disease Virus (LSDV) among cows and other cattle.
In their counter-affidavits, both the Union of India and the Animal Welfare Board of India asserted that the matter in question fell under the jurisdiction of the states. They further mentioned that they have issued guidelines and policy circulars from time to time, whereunder around 8.16 crore cattle have since been vaccinated.
Additionally, the states of Rajasthan, Maharashtra, Madhya Pradesh, Gujarat, Haryana, Punjab, and the Government of NCT of Delhi submitted their respective counter-affidavits, detailing the measures they have taken to prevent the spread of the LSDV among cows. They also outlined the allocation of funds for cattle vaccination.
Following a comprehensive review of the submissions, the division bench, comprising of Justice Surya Kant and Justice Dipankar Datta, expressed satisfaction with the measures taken by the states. They noted that all states had taken measures, such as, timely treatment of infected cows, preventing the spread of LSDV, vaccination of cows and other animals, disinfection of urinal areas, minimal transportation of animals with health checkups, establishment of test laboratories, and the constitution of Animal Welfare Boards/Committees to implement guidelines and policy circulars.
In light of these developments, the bench decided to close the proceedings, while also offering the petitioner the liberty to approach the Central or State Governments in the future for any related concerns.
The Court further granted the petitioner the liberty to submit a comprehensive representation to the Union of India, focusing on policies for sustainable programs for indigenous cows, utilization of cow urine and dung, and proper implementation and coordination of Pashu Aadhar numerical database.
With the above observations, the present writ petitions were disposed of.
Read Order: Aditya Kumar V. The State of Bihar & Anr
Chahat Varma
New Delhi, November 29, 2023: The Supreme Court has denied anticipatory bail to an IPS officer accused of impersonating the then Chief Justice of the Patna High Court to influence judicial decisions.
In the present case, the Special Leave Petition was filed against the Impugned Judgment dated 21.03.2023, passed by the Patna High Court. The High Court had declined pre-arrest bail to the petitioner, Aditya Kumar, accused of offenses under Sections 353, 387, 419, 420, 467, 468, and 120B of the Indian Penal Code, 1860, and Sections 66C and 66D of the Information Technology Act, 2000.
The allegations revolved around the petitioner, conspiring with others to gain undue benefits, such as favourable postings or dropping of disciplinary proceedings. The case centred on the creation of a WhatsApp account using SIM cards obtained by the co-accused, featuring a picture of the then Chief Justice (now a sitting Judge of the Supreme Court). The petitioner was accused of making calls and messages through this WhatsApp account to the then Director General of Police, Bihar, seeking favourable decisions.
The counsel for the petitioner asserted that since being granted interim protection by the Court on 12.05.2023, the petitioner cooperated with the investigating agency as required. He highlighted that, based on local newspaper reports in Bihar, a Charge Sheet was likely to be submitted, indicating the completion of the investigation. The petitioner argued that surrender or custody would serve no purpose at that stage. The petitioner contended that the allegations in the FIR were based on statements by co-accused, lacking direct evidence against him. It was emphasized that the FIR sections, at most, justified charges under the I.T. Act, and the IPC sections did not apply to him. The petitioner questioned the absence of the DGP, who received the calls, as an accused and noted an attempt to make him a witness, suggesting an effort to find a scapegoat. The petitioner urged the court to consider that custodial interrogation was unnecessary, and serious allegations alone should not mandate surrender and incarceration.Top of Form
On the opposing side, the counsel, representing the State of Bihar and the Economic Offences Unit (the investigating agency), argued that the petitioner couldn't be considered a mere co-accused but rather the main beneficiary and mastermind of the entire crime. The State contended that compelling evidence, including tower locations of mobile phones, linked the petitioner physically with the co-accused. It was contended that the petitioner alone possessed the knowledge of where he had kept his mobile handset, essential for further investigation.
A three-judge bench of Justice Aniruddha Bose, Justice Ahsanuddin Amanullah and Justice Augustine George Masih referred to the case of Sumitha Pradeep v Arun Kumar [LQ/SC/2022/1363], where the Court had emphasized that the absence of a need for custodial interrogation alone did not constitute sufficient grounds for granting anticipatory bail. While custodial interrogation can be a relevant aspect, the Court had highlighted that the primary consideration should be the prima facie case against the accused. The Court had stressed the importance of evaluating the nature of the offense and the severity of the punishment before deciding on anticipatory bail.
Having considered the matter, the bench opined that the petitioner was not entitled to anticipatory bail due to the seriousness and gravity of the alleged offenses and apparent non-cooperation. Thus, the impugned judgment was affirmed and upheld.
Further, the Court expressed serious concern about the integrity and public faith in the judicial system and ordered further directions and actions. The Registrar General of the Patna High Court was directed to submit complete details, in a sealed cover, regarding the actions taken by the High Court in response to a previous reference made to the Chief Justice for appropriate decisions on the administrative side. Additionally, the investigating agency was instructed to provide the entire up-to-date Case Diary, with flagged relevant portions, in a sealed cover on the next date.
The Registrar General of the Patna High Court was given a deadline to submit the report by December 9, 2023, and the case was designated as part-heard, with the next hearing scheduled for December 12, 2023. Furthermore, the Registry was instructed to add 'Patna High Court through its Registrar General' as Respondent No. 3 and to notify the relevant parties accordingly for compliance with the order.
Read Order: S. Mujibar Rahman V. The State Rep. By Inspector of Police & Anr
Chahat Varma
New Delhi, November 29, 2023: In a significant ruling, the Supreme Court has overturned a High Court order that split the trial of 31 accused in a criminal case. The Apex Court determined that the High Court failed to consider the Magistrate's reasons for not splitting the trial and that the decision to split the trial was premature given that further investigation was ongoing.
In summary, a First Information Report was registered against 31 accused for offenses under Sections 395, 397, 212, 120B, and Section 3 of the Tamil Nadu Public Property Damages Act. The Judicial Magistrate's order, dated 16th June 2019, revealed that despite efforts, the presence of some accused could not be secured, and the non-bailable warrants and summons had not been executed, with a report from the police department expressing their inability to do so. Consequently, the magistrate rejected the prayer made by the second accused invoking Section 317(2) of the Code of Criminal Procedure (Cr.P.C.).
Subsequently, the second accused filed a Revision Application before the High Court challenging the Magistrate's order. The High Court, in its impugned judgment, highlighted the prolonged pendency of the case since 2016 and the failure of the police to serve summons and nonbailable warrants to certain accused persons, leading to only 20 out of 31 accused attending the Court. The High Court allowed the splitting of the trial.
After perusing the impugned judgment, the division bench of Justice Abhay S. Oka and Justice Pankaj Mithal observed that the High Court had failed to consider the reasons recorded by the Magistrate. Additionally, the High Court did not take into account that the Judicial Magistrate had permitted further investigation on 13th February 2019. Therefore, the bench held that when the High Court permitted the splitting of the trial, it overlooked these crucial aspects. The first aspect was the Magistrate's dissatisfaction with the police's efforts to procure the presence of all accused, and the second was the order for further investigation. The bench concluded that the High Court should not have permitted the splitting of the case at this stage.
Ultimately, the appeal was allowed, and the impugned judgment and order from 23rd February, 2021 were set aside, restoring the original order of the Judicial Magistrate.
The appeal was accordingly allowed.
Read Order: New India Assurance Co. Ltd. & Ors V. M/s. Mudit Roadways
Chahat Varma
New Delhi, November 28, 2023: The Supreme Court has recently dismissed an appeal filed by New India Assurance Co. Ltd., upholding the National Consumer Disputes Redressal Commission's (NCDRC) order directing the insurance company to pay Rs.6,57,55,155 for a fire insurance claim.
The factual matrix of the case was that the respondent, M/s. Mudit Roadways, had purchased various insurance policies to cover its premises. The claimant had leased the premises from M/s. Platinum Logistics for warehousing purposes. The claimant had paid Rs. 44,02,562 to New India Assurance for safeguarding custom-bonded goods and covering the risk of fire, etc. During the pendency of the insurance policies, a fire broke out at the insured warehouse. The respondent informed the Insurance Company and the Customs authorities about the incident. Upon receiving the Survey and Investigation Reports, the Insurance Company rejected the respondent's claim, citing two reasons: 1) The insured premises was unaffected by the fire, and 2) The fire resulted from the insured's negligence during roof construction in a secure customs-bonded warehouse with hazardous chemicals. Construction work in the warehouse increased the risk, leading to the cessation of insurance coverage under Clause 3 of the policy's terms and conditions.
However, the NCDRC ruled in favour of the claimant, concluding that the insurance policy covered the claimant’s warehouse. On the second issue, the NCDRC noted the time lag between the welding work and the fire incident and observed that the Forensic report was inconclusive. The other reports suggesting an electrical short circuit as the cause of the fire were found to be more acceptable. Adverting to the roofing work done by the insured, the NCDRC held that it did not significantly increase the risk, and therefore, Clause no. 3 was inapplicable.
The division bench, comprising of Justices Hrishikesh Roy and Sanjay Karol, highlighted that an insurance company cannot introduce new grounds for repudiation during the hearing that were not included in the original repudiation letter.
The bench, after examining the policy documents, the Leave & License Agreement, and various communications from the customs, police, fire, and electricity departments, concluded that the insured premises identified and insured by the insurance company was at Survey No. 9/3. There was no indication that the area where the fire occurred was not covered by the insurance policy.
The bench further observed that the insured had undertaken essential repair work on the rooftop to prevent water leakage to the warehouse. This repair work, in the court's assessment, was not considered an alteration that would increase the risk of loss or damage, as argued by the insurance company. Consequently, the bench found no infirmity with the NCDRC's view on the matter.
The bench also noted that the conclusion of the Forensic Investigator, attributing the cause of the fire to sparks from rooftop welding, appeared illogical. The investigator's oversight of other potential causes, such as a short circuit, was noted. Additionally, there was a lack of evidence that sparks fell on flammable chemicals due to activities undertaken by workers. Out of the nine reports, seven suggested a short circuit as the likely cause of the fire, while two inferred negligence on the insured's part for inadequate precautions during warehouse construction.
The bench concluded that the significant time gap between the welding work and the fire lacked a logical explanation. As a result, the basis for repudiation appeared unreasonable and was deemed unacceptable.
Additionally, the bench observed that the surveyor’s report could not be considered a sacred document, and contrary evidence, including an investigation report, was subject to rebuttal. The key question was whether the investigation report was indispensable or if the survey report alone was sufficient to determine the cause of the fire. Thus, the bench held that the surveyor’s report, although comprehensive otherwise, was inconclusive on the aspect of identifying the actual cause of the fire. Given that the surveyor’s report only relied on the findings of the Forensic Examiner, it was deemed unsafe, to rely on the said report.
The bench also, in reference to Canara Bank v. United India Insurance Co. Ltd. [LQ/SC/2020/180], highlighted that the precise cause of a fire, whether attributed to a short-circuit or any alternative factor, remained immaterial, provided the claimant was not the instigator of the fire. This case emphasized the fundamental principle that an insurance company’s obligation to the insured was of much greater import.
The bench remarked, “In the realm of risk and uncertainty, individuals and organisations seek solace in the bastion of insurance – a covenant forged on the bedrock of trust. Trust serves as the cornerstone, forming the essence of the insurer-insured relationship.”
The bench emphasized the fundamental principle that insurance is governed by the doctrine of uberrimae fidei, requiring complete good faith on the part of the insured. The insurer assumes a fiduciary duty to act in good faith and honour their commitment, particularly when the insured had not been negligent.
Accordingly, the appeal of the Insurance Company was dismissed. However, the Court, while dismissing the appeal, added that to avoid any confusion, the customs duty component of the claim should be discharged directly to the Customs Department.
Read Order: M/s. IFCI Limited V. Sutanu Sinha & Ors
Chahat Varma
New Delhi, November 28, 2023: In a recent decision, the Supreme Court has dismissed an appeal filed by M/s. IFCI Limited, upholding the decision of the National Company Law Appellate Tribunal (NCLAT) that Compulsorily Convertible Debentures (CCDs) issued in relation to a highway project should be treated as equity and not debt.
The dispute revolved around a highway project in which the appellant, IFCI Limited, invested through CCDs. The National Highways Authority of India (NHAI) had awarded the project to IVRCL Chengapalli Tollways Ltd (ICTL) through a Concession Agreement. ICTL, a subsidiary company of IVRCL, received a term loan facility from a consortium of lenders, and the remaining project was to be financed by IVRCL through equity infusion, including the issuance of CCDs. The conversion of the CCDs into equity was scheduled for December 2017, but the formal issuance of shares did not occur after that date. The appellant had agreed to subscribe to the CCDs, which included a ‘put option’, allowing for the sale of the CCDs to a third party in the event of default by ICTL, with IVRCL retaining the principal obligation.
However, the project encountered financial difficulties, and despite a one-time settlement being suggested and agreed to, the terms were not honoured. Corporate guarantees of IVRCL were invoked by the appellant, leading to the initiation of the Corporate Insolvency Resolution Process under the Insolvency and Bankruptcy Code, 2016 (IBC) by both the appellant and the State Bank of India. The appellant's claim, asserting the amount owed as a debt, was rejected by the Resolution Professional on the grounds that the CCDs were to be treated as equity, not debt. The rejection was upheld by the National Company Law Tribunal and subsequently by the NCLAT. The judgment of the NCLAT was based on the understanding that Compulsorily Convertible Debentures, by their nature, do not involve the repayment of the principal amount and are considered as ‘equity’ rather than debt, particularly if they are compulsorily convertible into shares.
The core argument presented by the counsel for the appellant was that the appellant had been left in a precarious position. If its investment were to be considered as equity, according to the waterfall principle, it would receive no proceeds. Consequently, while other creditors benefited, the appellant did not. The counsel argued that, in practice, the appellant was neither treated as a shareholder nor as a financial creditor, leaving the appellant without a legal remedy.
A three-judge bench of Justice Sanjay Kishan Kaul, Justice Sudhanshu Dhulia and Justice Ahsanuddin Amanullah held that the appellant had been provided security under the Debentures Subscription Agreement, but the obligations rested with the sponsor company. Therefore, it was challenging for the court to understand how the obligation lay with the Special Purpose Vehicle (SPV), i.e., ICTL.
The bench emphasized that the complexities inherent in commercial documents were contingent upon the specific nature of the businesses involved. The agreements in question were characterized as not being typical layman's agreements, as they were scrutinized by experts, and each party was deemed to have had a comprehensive understanding of their respective obligations and the potential benefits stemming from the agreements.
Further, the bench, referring to Nabha Private Limited Vs. Punjab State Power Corporation Limited [LQ/SC/2017/1463], emphasized the principle that contracts should be interpreted as they are written, without adding implied terms unless absolutely necessary. The bench clarified that a contract should not be supplemented or added to by the court.
The bench observed that in the present case, the crucial issue crystallized in the impugned judgment was whether CCDs could be treated as a debt instead of an equity instrument. It was noted that treating CCDs as a debt would constitute a breach of the concessional agreement and the common loan agreement, as the investment was clearly in the nature of debentures compulsorily convertible into equity. The observation highlighted that there was no stipulation indicating that these CCDs would assume the character of financial debt upon the occurrence of a specific event.
The bench also took note of a significant aspect mentioned in the impugned order. It was highlighted that the terms of the various agreements prohibited the corporate debtor from incurring further debt without the consent of the assignees. The bench observed that no such approval was sought or obtained, and the amount in question was treated as equity rather than debt.
Furthermore, the bench also acknowledged the NCLAT’s consideration of the remedy available to the appellant. The NCLAT expressed the view that the appellant did not avail the remedy within the stipulated time, emphasizing the time-bound nature of processes under the Code. The rejection of the appellant's claim occurred on 09.08.2022, and the appellant attempted to raise the issue again on 30.11.2022, after a lapse of three months from the initial rejection.
The Court observed that its jurisdiction was derived from Section 62 of the Code. According to this section, any person aggrieved by an order of the NCLAT had the right to file an appeal to the Supreme Court, limited to a question of law arising from such order under the Code. The Court noted that this jurisdiction was restricted, resembling a second appeal, and had a specific timeframe for filing, i.e., within forty-five days from the date of receiving the order.
“The law does not envisage unlimited tiers of scrutiny and every tier of scrutiny has its own parameters. Thus, the lis inter se the parties has to be analyzed within the four corners of the ambit of the statutory jurisdiction conferred on this Court,” remarked the bench.
Thus, the Court, upon reviewing the appeal, concluded that there were no significant legal questions raised and held that the findings of the lower courts were in accordance with settled legal principles.
Accordingly, the present appeal was dismissed.Top of Form
Read Order: Suresh & Ors V. State of Madhya Pradesh
Chahat Varma
New Delhi, November 28, 2023: In a significant ruling, the Supreme Court has quashed an FIR registered against three individuals, accused of fuel adulteration, due to a lack of substantial evidence and the prosecution's failure to produce an expert report on the nature of the liquid in question.
In the case at hand, the appellants had sought the quashing of an FIR registered against them under Sections 420 and 120B of the Indian Penal Code, 1860, and Sections 3 and 7 of the Essential Commodities Act, 1955. They invoked the jurisdiction of the Madhya Pradesh High Court under Section 482 of the Code of Criminal Procedure, 1973, however, the High Court, through the impugned judgment, dismissed the petition for quashing the FIR.
The case originated from events on October 7, 2021, when Bharat Petroleum Corporation Ltd. (BPCL) issued invoices for the transportation of 9 Kilolitres each of petrol and diesel to MP Bombay Auto Service Petrol Diesel Pump. Allegedly, due to valve failure, the fuel was transferred to another tanker. On October 11, 2021, the police intercepted the truck while unloading at the pump, seizing the liquid. Samples were sent to various laboratories, and on October 14, 2021, an FIR was registered. The appellants received arrest memos on October 13, 2021. The BPCL Quality Assurance Laboratory submitted a test report, stating conformity with specifications and thereafter, a show cause notice under Section 6(b) of the Essential Commodities Act was issued to the third appellant, resulting in a fine.
The prosecution's case was based on the allegation that a hydrocarbon mixture, resembling petrol and diesel, was found in a seized tanker and was being sold by the appellants as genuine fuel. However, the division bench of Justice Abhay S. Oka and Justice Pankaj Mithal noted that despite the passage of more than two years since the samples were sent for testing, no expert report on the nature of the liquid in the tanker had been produced.
The bench also highlighted the lack of conclusive evidence regarding the nature of the liquid found in the seized tanker. It was noted that no material forming part of the charge sheet had been presented to demonstrate that the liquid in the tanker was neither diesel nor petrol, but a mixture of hydrocarbons. The absence of such substantive evidence raised doubts about the validity of the allegations and the basis for the charges.
“The allegation of cheating is also made on the footing that thousands of customers were supplied with the said mixture instead of petrol or diesel. Unless there was a material forming part of the chargesheet to show the nature of the liquid, no offence is made out,” said the division bench.
Further, the bench pointed out that the prosecution’s lack of effort to obtain the report even after being notified by the court, led to an adverse inference being drawn against them.
Thus, considering the absence of substantiated evidence and the extended delay in obtaining expert reports, the Court concluded that the continuation of the prosecution would amount to an abuse of the process of law.
As a result, the Court allowed the appeal, set aside the High Court's judgment, and quashed the FIR and charge sheet.
Read Order: Nababuddin @ Mallu @ Abhimanyu v. State of Haryana
Chahat Varma
New Delhi, November 28, 2023: The Supreme Court has set aside the conviction of an accused in a Narcotic Drugs and Psychotropic Substances Act (NDPS Act) case. The decision was based on the failure of the Trial Court to present two crucial circumstances to the accused during his examination under Section 313 of the Code of Criminal Procedure (Cr.P.C.). This omission was deemed to have caused serious prejudice to the accused's defence, leading to the entire trial being vitiated.
In summary, the accused-appellant, along with two co-accused, was convicted by the Special Judge under the NDPS Act for the offense under Section 15 of the NDPS Act. The Special Judge concluded that the prosecution had successfully proven that the accused were in conscious possession of 205 kilograms of poppy straw without a license or permit. The Punjab and Haryana High Court upheld the conviction of the appellant and the other two individuals.
The appellant's counsel had argued that the accused no. 2 had visited the railway station to inquire about parcels on behalf of the owner. When accused no. 2 did not return, the appellant went to the railway station to inquire about him. The counsel stressed that the railway receipt for the parcels was presented by accused no. 2, not the appellant. Additionally, the counsel asserted that the prosecution's claim that the railway receipt was in the appellant's name was not addressed during the appellant's examination under Section 313 of the Cr.P.C. The counsel also highlighted that the allegation that the appellant approached the station supervisor to inquire about the parcel was not raised during the appellant's examination under Section 313 of Cr.P.C.
On the other hand, the counsel representing the State argued that the material circumstances, about which the appellant raised concerns, were indeed presented to the appellant. The counsel contended that the railway receipts were in the name of the appellant, and the appellant's visit to the railway station with accused no. 2 to inquire about parcels containing contraband indicated not only his involvement but also constructive possession of the contraband, given that the railway receipt was in his name.
The division bench, comprising of Justice Abhay S. Oka and Justice Pankaj Mithal, carefully reviewed the appellant's interrogation under Section 313 of the CrPC. The bench observed that a crucial circumstance against the appellant, related to his visit to the railway station and inquiry with the station supervisor about contraband parcels, was not brought to his attention during the examination under Section 313 of the Cr.P.C.
The bench, in discussing the significance of the examination of the accused under Section 313 of the Cr.P.C., cited a judgment from the case of Raj Kumar v. State (NCT of Delhi) [LQ/SC/2023/618]. In this judgment, the Court had observed that the Trial Court has the duty to present each material circumstance from the evidence against the accused in a specific, distinct, and separate manner. The failure to do so was considered a serious irregularity, and it could vitiate the trial if it could be demonstrated that such failure prejudiced the accused.
The bench observed that in the present case, a serious prejudice was caused to the appellant's defence as the only material circumstances pleaded by the prosecution were not presented to him during the examination under Section 313 of the Cr.P.C. Despite the appellant not raising the issue earlier, the omission was deemed significant and fundamental to the appellant's case. According to the bench, it constituted a serious and material illegality committed by the Court.
Thus, the bench held that subjecting the appellant to examination under Section 313 of the Cr.P.C. after more than twenty-two years of incarceration would result in prejudice. The failure to present two relevant circumstances to the appellant during this examination was considered fatal to the prosecution's case. Consequently, the Court determined that the appellant's conviction could not be sustained on this ground.
Consequently, the Court allowed the present appeal, resulting in the setting aside of the Trial Court and High Court judgments, but specifically in relation to the present appellant. Notably, the convictions of the other two accused were not disturbed.
Read Order: Vishesh Aggarwal & Ors. V. State of NCT of Delhi & Anr.
Chahat Varma
New Delhi, November 28, 2023: The Delhi High Court has refused to quash an FIR alleging extortion and assault, holding that the allegations were too serious to be quashed at the investigation stage.
The present petition was filed on behalf of the petitioners seeking quashing of FIR, registered for the offences punishable under Sections 323/341/384/506/34 of Indian Penal Code, 1860 (IPC).
In summary, the case involved an FIR registered based on the complaint of Daulatram, who alleged that several individuals, including the accused/applicant Vishesh, had physically assaulted his employee Sukhwinder and attempted to extort money from him. Daulatram claimed ownership of a property in Delhi with multiple tenants, including the accused/applicant, and had issued eviction notices due to the building being declared dangerous by the North Delhi Municipal Corporation. However, instead of vacating the premises, the accused began threatening the complainant. The complaint further alleged that the accused physically assaulted the complainant and his employee, with some of the accused allegedly armed with sharp-edged weapons.
The counsel for the petitioner stated that a compromise had been entered into between the parties at the very initial stage of the investigation, i.e., before filing the charge sheet. The APP for the State argued that the allegations against the accused persons were serious, involving physical assault on the complainant and extortion of money through threats to him and his family. It was asserted that the present case, characterized by such serious nature, could not be quashed during the ongoing investigation, despite a settlement being reached between the parties.
The single-judge bench of Justice Swarana Kanta Sharma opined that the allegations levelled in the FIR were serious in nature, including, among other things, the commission of an offense under Section 384 of the IPC, which deals with the offense of extortion. Such allegations could not be treated as a mere private dispute between two parties. If found true during the course of the investigation or trial, they were considered offenses against society at large. Therefore, FIRs with such serious allegations could not be quashed merely based on settlement agreements reached between two parties.
The bench also noted that in the case of State of Haryana v. Chaudhari Bhajan Lal [LQ/SC/1990/744], the Hon'ble Supreme Court had cautioned that the High Court, in the exercise of powers under Article 226 of the Constitution of India or Section 482 Cr.P.C., might interfere in proceedings related to cognizable offenses to prevent the abuse of the process of any court or otherwise to secure the ends of justice. However, such power should have been exercised sparingly and that too in the rarest of rare cases.
In the present case, the bench held that a bare perusal of the FIR made it clear that there were serious allegations of extortion of money by the accused/applicant. The accused had allegedly assaulted the complainant and his employee, further threatening to initiate false criminal cases against them and their family members if the demand for payment of money was not met. The allegations in the FIR were deemed sufficient for the police to conduct further investigation against the accused. The bench also expressed the view that, applying the principles laid down in the case of Bhajan Lal, the FIR could not be quashed since the investigation was still pending, and the chargesheet was yet to be filed. It was emphasized that it was the duty of the police and the investigating officer to inquire into and investigate the serious allegations in the FIR to ascertain the truth.
Further, the bench noted that the police must be permitted to complete the investigation unless, on the face of it, the allegations seemed to be inherently absurd or improbable. Pronouncing a conclusion based on uninvestigated facts that the complaint did not deserve investigation and amounted to an abuse of the process of law would be premature. It was emphasized that, during or after the investigation, if it was found that there was no substance in the complaint made by the complainant, the investigating officer could file an appropriate report before the Magistrate. The report could then be considered by the Magistrate in accordance with the law.
Thus, considering the overall facts and circumstances of the case, along with the allegations and material available on record, the Court found no reason to quash the FIR at the present stage of the investigation.
Accordingly, the present petition was dismissed.
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.
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.
Exploring The Right To Be Forgotten & Its Relevance In India’s Digital Landscape
By Shivender Kumar Sharma
By Shivender Kumar Sharma
The "right to be forgotten" has emerged as a crucial legal right in the digital age. It refers to an individual's right to request the removal of their personal information from the internet. This right is based on the principle that individuals should have control over their personal data and the right to be able to move on from past mistakes or embarrassing incidents that are no longer relevant to their current life.
The right to be forgotten is particularly important in a world where social media, online search engines, and other digital platforms, hold vast amounts of personal data. In the absence of this right, individuals would have limited control over their personal information, leaving them vulnerable to identity theft, cyberstalking, and other forms of online harassment.
The European Union (EU) was one of the first governing bodies to recognise the importance of the right to be forgotten. In 2014, the EU's Court of Justice ruled that individuals have the right to request the removal of personal data from search engines if the information is inaccurate, irrelevant, or no longer necessary.
The EU's decision sparked a global debate about the right to be forgotten and its implications for freedom of expression and access to information. Some argued that the right to be forgotten could be used to censor legitimate journalism and limit the public's right to know about important issues.
However, the right to be forgotten is not an absolute right. It must be balanced against other fundamental rights, such as freedom of expression and access to information. For example, if information is of public interest, such as a public figure's criminal record, it may not be possible to remove it from search engines.
The right to be forgotten is also not a panacea for all digital privacy concerns. Individuals must still take steps to protect their personal data online, such as using strong passwords, avoiding public Wi-Fi, and being cautious about sharing personal information on social media.
The right to be forgotten is a legal concept that allows individuals to request the removal of their personal information from online platforms and search engines. This right is based on the idea that individuals should have control over their personal data and should be able to determine how it is used and shared.
The right to be forgotten is not an absolute right and must be balanced against other rights such as freedom of expression, public interest, and the right to access information. However, in certain circumstances, the right to be forgotten may be considered an essential right.
For example, if an individual’s personal information has been unlawfully obtained, used for fraudulent purposes, or is causing them harm or distress, the right to be forgotten may be essential to protect their privacy and personal safety. In these cases, the right to be forgotten can be a powerful tool for individuals to regain control over their personal data and protect themselves from harm.
Additionally, the right to be forgotten can be essential for individuals who have been the victim of cyberbullying, revenge porn, or other forms of online harassment. In these cases, the right to be forgotten can help individuals remove harmful and embarrassing information from the internet and prevent further harm to their reputation and mental wellbeing.
The right to be forgotten can also be essential for individuals who have made mistakes in the past and wish to move on with their lives. For example, a person who has a criminal record may find it difficult to obtain employment or housing due to their past mistakes. The right to be forgotten can allow individuals to have their past mistakes removed from the internet and start fresh without the burden of their past mistakes following them.
Another challenge is enforcing the right to be forgotten. Online platforms and search engines may be based in different countries, making it difficult to enforce the right to be forgotten globally. Additionally, online platforms and search engines may not have the resources to handle the large volume of requests they receive for the removal of personal information.
The right to be forgotten is an essential right in today’s digital age. It allows individuals to protect their privacy, personal safety, reputation, and mental wellbeing. While the right to be forgotten must be balanced against other rights, such as freedom of expression and the right to access information, in certain circumstances, it can be a powerful tool for individuals to regain control over their personal data and protect themselves from harm.
The right to be forgotten is a relatively new legal concept, and its status in India is currently unclear. India does not have a specific law that recognises the right to be forgotten, nor has any case law been established on the issue.
However, there have been several instances in India where individuals have sought the removal of their personal information from online platforms and search engines. In 2017, the Delhi High Court ordered Google and Facebook to remove content related to an individual's alleged extramarital affairs. The court held that the right to privacy was a fundamental right under the Indian Constitution, and that individuals have the right to control their personal information.
In 2019, the Madras High Court ordered the removal of a video that was allegedly defamatory towards a politician. The court held that individuals have the right to be forgotten, and that the removal of personal information from online platforms was necessary to protect an individual's privacy and reputation.
However, it is important to note that these cases do not establish a legal precedent for the right to be forgotten in India. The Indian government has not yet recognised the right to be forgotten in any law or policy.
In addition, India's approach to privacy and data protection is currently evolving. In 2017, the Indian Supreme Court recognised the right to privacy as a fundamental right under the Constitution. In 2018, the Justice BN Srikrishna Committee on Data Protection submitted its report to the government, which included recommendations on the right to be forgotten. The committee recommended that individuals should have the right to request the removal of their personal data from online platforms and search engines under certain circumstances, such as if the information is inaccurate or outdated. The Bill seeks to regulate the collection, storage, and processing of personal data. The Bill includes provisions related to the right to be forgotten, but it has not yet been enacted into law.
In conclusion, the right to be forgotten is an important right in today's digital age, and its recognition in India is still evolving. While there is no specific law governing the right to be forgotten in India, the courts have recognized it in some cases. It is important to strike a balance between the right to be forgotten and other fundamental rights such as freedom of speech and expression. As India continues to develop its laws and regulations on data protection and privacy, it will be interesting to see how the right to be forgotten is further recognized and protected.
Shivender Kumar Sharma is Managing Partner, SKS Law Chambers.
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