Read Order: Mohar Singh (Dead) Through Lrs. & Ors. V. State Of Uttar Pradesh Collector & Ors.
Chahat Varma
New Delhi, November 28, 2023: In a recent decision, the Supreme Court has ruled that inordinate delay in filing an appeal in compensatory matters, per se, may not be fatal as the rights and equities between the parties can be well balanced by denying the statutory benefits, such as interest for the delayed period.
In the given case, the appellants' land in village Khora, District Ghaziabad, was part of a larger tract of 902.2046 acres, proposed for acquisition by a notification dated 17.03.1988 under Section 4(1) of the Land Acquisition Act, 1894. Ultimately, only 337.892 acres, including the appellants' land, were acquired, and the Special Land Acquisition Officer issued an award, providing compensation at the rate of Rs.70 per sq. yard. Subsequently, the appellants, along with other landowners, filed references under Section 18 of the Act. The Xth Additional District Judge, Ghaziabad, in an award dated 06.04.1998, partially accepted the references and increased the compensation to Rs.106 per sq. yard. Following this, several landowners, including the appellants, approached the Allahabad High Court seeking further enhancement of compensation.
The appellants, however, failed to file an appeal before the High Court within a reasonable time. Subsequently, they initiated the first appeals in 2011, facing a delay of 12 years and 353 days. Seeking condonation of the delay, the appellants cited reasons such as illiteracy and poverty, which hindered their ability to arrange the required Court Fee. Despite their plea, the High Court refused to condone the delay, leading to the dismissal of the first appeal(s) filed by the appellants.
Meanwhile, the batch of first appeals preferred by other land owners, came to be decided, wherein the High Court enhanced the compensation at the rate of Rs.130 per sq. yard.
The division bench, comprising Justice Surya Kant and Justice Dipankar Datta, acknowledged that certain landowners, who remained discontent with the compensation rate set by the High Court, had approached this Court. A coordinating bench, through an order dated 12.12.2017, had partially granted relief in those appeals.
Further, the bench opined that the appellants had the right to seek parity with their co-villagers in receiving compensation for their acquired land.
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“All that the High Court ought to have emphatically denied to the late-comers was the benefit of interest including on the solatium, under Section 34 of the Act for the period from the date of passing of the award by the Reference Court till the filing of the first appeals,” observed the division bench.
Also, considering the appellants' plea for enhanced compensation at the rate set by the High Court for the land in village Makanpur, the bench noted that this argument was explicitly presented before the High Court when their initial appeals were adjudicated on 04.07.2016. The High Court decisively dismissed this claim, opting for a lower rate of Rs.130 per sq. yard for the land in village Khora. In a subsequent appeal, this Court partially accepted the landowners' claim for village Khora, increasing the compensation to Rs.150 per sq. yard. Essentially, the plea for parity between the acquired lands of village Khora and Makanpur was implicitly rejected by this Court. Consequently, the bench found no merit in asserting that the appellants should receive compensation at par with the landowners of village Makanpur.
The bench noted that there was another plausible reason to reject the appellant's claim for the higher rate of Rs.297 per sq. yard. The delay of nearly 13 years in filing their first appeals was condoned solely to achieve parity among similarly situated landowners under Article 14 of the Constitution. Granting the appellants compensation higher than their counterparts, despite the latter being diligent in pursuing their remedy promptly, would result in hostile discrimination.
Having made this determination, the appeals were allowed in part, and the appellants were deemed entitled to compensation at the rate of Rs.150 per sq. yard for their acquired land. However, it was clarified that the compensation amount would not include statutory interest, including on solatium, at the rate prescribed under Section 34 of the Act for the period from the date of passing of the award by the Reference Court under Section 18 of the Act until the filing of the respective first appeals before the High Court.
Read Order: Dilip B Jiwrajka V. Union of India & Ors
Chahat Varma
New Delhi, November 24, 2023: The Supreme Court has upheld the constitutionality of Sections 95 to 100 of the Insolvency and Bankruptcy Code 2016 (IBC), rejecting a batch of petitions challenging their validity.
In the case at hand, the petitioners, in a batch of three hundred and eighty-four petitions under Article 32 of the Constitution, had contested the constitutional validity of Sections 95 to 100 of the IBC.
A three-judge bench of Chief Justice Dhananjaya Y Chandrachud, Justice J B Pardiwala and Justice Manoj Misra highlighted a fundamental distinction between Part II and Part III of the IBC. It was noted that Part II, specifically Chapter II, was dedicated to the resolution of insolvencies of corporate entities, while Part III dealt with insolvency resolution and bankruptcy for individuals and partnership firms. The observation emphasized that these parts addressed distinct processes tailored to the resolution of insolvencies in different contexts, with Part II focusing on corporate entities and Part III addressing the insolvency concerns of individuals and partnership firms.
The bench further observed that the resolution professional in the context of individual or partnership insolvencies, as outlined in Chapter III of Part III of the Insolvency and IBC, did not possess an adjudicatory function according to Section 99. The resolution professional's role, as specified in Section 99, was to gather relevant information based on the application, conduct necessary processes, and submit a report recommending the acceptance or rejection of the application. The expressions ‘examine the application’, ‘ascertain and satisfy the requirements’ and ‘recommend the acceptance or rejection of the application’ made it clear that the resolution professional's role was purely recommendatory and did not involve performing adjudicatory functions or arriving at binding conclusions on facts.
The bench also observed that Clause (b) of sub-section (1) of Section 14 empowered the adjudicating authority to declare a moratorium restraining the transfer, encumbrance, alienation, or disposal by the corporate debtor of any of its assets or any legal right or beneficial interest therein. Importantly, the moratorium under Section 14 operated based on the order passed by an adjudicating authority. The purpose of the moratorium under Section 96 was protective in nature, aiming to insulate the corporate debtor from the initiation or continuation of legal actions or proceedings concerning the debt.
The bench expressed the considered view that the resolution professional, operating under the regulatory oversight of the Board, plays a vital role in the effective functioning of the insolvency process and significantly contributes to its efficiency. The bench highlighted two key aspects: firstly, the resolution professional is only entitled to seek information strictly relevant to the examination of the application for Insolvency Resolution Process (IRP); and secondly, regulation 7(2)(h) of the Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2016, read with para 21 of the First Schedule, imposes an obligation on the resolution professional to ensure the confidentiality of all information related to the insolvency process.
The bench held the view that the submission advocating for an adjudicatory role to be introduced at the stage of Section 97(5) cannot be accepted. The authority bestowed upon the adjudicating authority at the application filing stage is for the appointment of a resolution professional. This appointment serves a facilitative purpose outlined in Section 99, culminating in a report that either recommends the acceptance or rejection of the application. Considering the statutory scheme, the bench deemed it impermissible for the court to allow adjudicatory intervention by the adjudicating authority to determine what is described as a jurisdictional question at the Section 97(5) stage.
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With the above observations, the Court concluded that no judicial adjudication was involved in the stages outlined in Sections 95 to Section 99 of the IBC. The resolution professional appointed under Section 97 played a facilitative role, collating relevant facts for examining the application for the commencement of the insolvency resolution process. The report submitted to the adjudicatory authority was recommendatory in nature, suggesting whether to accept or reject the application.
Further, the argument that a hearing should be conducted by the adjudicatory authority for determining jurisdictional facts at the stage of appointing a resolution professional under Section 97(5) of the IBC was rejected. It was noted that no adjudicatory function was contemplated at that stage, and introducing such a requirement would have amounted to rewriting the statute. The resolution professional could use the powers under Section 99(4) of the IBC to examine the application for insolvency resolution and gather information relevant to the application to facilitate the submission of the report recommending its acceptance or rejection. There was no violation of natural justice under Sections 95 to 100 of the IBC, as the debtor was not deprived of an opportunity to participate in the examination process by the resolution professional. No judicial determination occurred until the adjudicating authority decided under Section 100 whether to accept or reject the application. The report of the resolution professional was merely recommendatory and did not bind the adjudicatory authority when exercising its jurisdiction under Section 100.
The bench held that the adjudicatory authority had to observe the principles of natural justice when exercising jurisdiction under Section 100 to determine whether to accept or reject the application. The purpose of the interim-moratorium under Section 96 was to shield the debtor from further legal proceedings. The provisions of Sections 95 to 100 of the IBC were not unconstitutional as they did not violate Article 14 and Article 21 of the Constitution.
Consequently, the present writ petitions were dismissed.
Read Order: State of Punjab v. Principal Secretary to the Governor of Punjab and Another
Chahat Varma
New Delhi, November 24, 2023: In a significant ruling, the Supreme Court has held that the Governor cannot withhold action on Bills passed by the State Legislature.
In this case, the State of Punjab had moved to the Supreme Court under Article 32 of the Constitution, seeking relief in relation to the Sessions held on 19 June 2023, 20 June 2023, and 20 October 2023 of the Punjab Vidhan Sabha. Specifically, the state was seeking a declaration affirming the legality of these sessions and validating the business transacted by the House. Additionally, the State of Punjab was seeking a mandamus to ensure that seven Bills, including three Money Bills, which had been kept pending by the Governor, are processed in accordance with the law.
The Supreme Court had entertained the petition on 6 November 2023 and had been informed that subsequent to the filing of the petition, the Governor had recommended the introduction of two out of the three Money Bills, namely, the Punjab Goods and Services Tax (Amendment) Bill 2023 and the Indian Stamp (Punjab Amendment) Bill 2023, before the Vidhan Sabha.
Two issues arose for consideration: first, whether the Governor could withhold action on Bills that had been passed by the State Legislature; and second, whether it was permissible in law for the Speaker to reconvene a sitting of a Vidhan Sabha session that had been adjourned but not prorogued.
A three-judge bench of Chief Justice Dhananjaya Y Chandrachud, Justice J B Pardiwala and Justice Manoj Misra observed that in a Parliamentary form of democracy, real power was vested in the elected representatives of the people, both at the State and Central levels. The Governor, as an appointee of the President, was the titular head of the State. The fundamental principle of constitutional law consistently followed since the adoption of the Constitution was that the Governor acted on the 'aid and advice' of the Council of Ministers, except in areas where the Constitution entrusted the exercise of discretionary power to the Governor. The bench emphasized that this principle cemented the constitutional foundation, signifying that the power to make decisions affecting the governance of the State or nation primarily lay with the elected arm of the government.Furthermore, the bench underscored that the Governor was intended to be a constitutional statesman, guiding the government on matters of constitutional concern.
The bench stated that the Governor, as an unelected Head of the State, possesses constitutional powers, but these powers cannot be utilized to impede the normal course of lawmaking by the State Legislatures. If the Governor decides to withhold assent under the substantive part of Article 200, it is logical to pursue the course indicated in the first proviso, which involves remitting the Bill to the state legislature for reconsideration. The power to withhold assent under Article 200 must be read together with the consequential course of action to be adopted by the Governor under the first proviso. Failing to do so would allow the unelected Head of State to potentially veto the functioning of the legislative domain, thus contradicting fundamental principles of a constitutional democracy based on a Parliamentary pattern of governance.
Further, the bench noted that concerning Money Bills, the power of the Governor to return a Bill in terms of the first proviso was excluded from the purview of the constitutional power of the Governor. Money Bills were governed by Article 207, requiring the recommendation of the Governor for the introduction of the Bill on a matter specified in clauses (a) to (f) of clause (1) of Article 199.
The bench emphasized that the Governor was not at liberty to withhold his action on the Bills that had been placed before him and had no avenue but to act in a manner postulated under Article 200 of the Constitution.
Thus, the bench ruled that the Governor of Punjab was not empowered to withhold action on the Bills passed by the State Legislature and must act ‘as soon as possible’.
Further, the bench, referred to the case of Ramdas Athawale (5) v. Union of India and Others [LQ/SC/2010/328], wherein the constitutional distinction between the prorogation of the House and its adjournment was highlighted. The Court had explained that an adjournment was an interruption in the course of one and the same session, while prorogation terminated a session, putting an end to all proceedings in Parliament. The bench noted that in the present case, the Vidhan Sabha being adjourned on 22 March 2023 without prorogation, the Speaker was empowered to reconvene the sittings of the House within the same session.
The bench observed that under Article 122(2), the decision of the Speaker, in whom powers are vested to regulate the procedure and conduct of business, is final and binding on every Member of the House. The validity of the Speaker adjourning the House sine die and the subsequent direction to resume sittings could not be inquired into on the grounds of any irregularity of procedure.
The bench held that Rule 16 of the Rules of Procedure and Conduct of Business in the Punjab Vidhan Sabha (Punjab Legislative Assembly)empowered the Vidhan Sabha to adjourn from time to time by its own order. The first proviso to Rule 16 acknowledged that adjournment of the Vidhan Sabha could be either to a particular day or sine die. Thus, the bench concluded that it was legally permissible for the Speaker to reconvene the sitting of the Vidhan Sabha after it was adjourned sine die without prorogation. Furthermore, the Speaker was empowered as the sole custodian of the proceedings of the House to adjourn and reconvene the House.
The bench observed that the submission made by the State of Punjab in the present petition, seeking a declaration that the sessions of the Vidhan Sabha and the business transacted within them were legal, was based on misconceptions. The bench noted that the declaration was not sought in isolation but as a response to the Governor's inaction on the Bills, purportedly due to the belief that the sessions were invalid. The State of Punjab consistently asserted that the sessions of the Vidhan Sabha and the business conducted therein were legal and constitutionally valid, as evidenced by the correspondence.
Consequently, the bench had held that there was no valid constitutional basis to cast doubt on the validity of the session of the Vidhan Sabha held on 19 June 2023, 20 June 2023, and 20 October 2023. It stated that any attempt to cast doubt on the session of the legislature would pose significant risks to democracy. The Speaker, recognized as a guardian of the privileges of the House and a constitutionally authorized representative of the House, was deemed to have been acting within his jurisdiction in adjourning the House sine die. Furthermore, the re-convening of the House was considered to be within the scope of Rule 16 of the Rules of Procedure.
The Court emphasized that casting doubt on the validity of the session of the House was not a constitutional option open to the Governor. It noted that the Legislative Assembly was comprised of duly elected Members of the Legislature, and during the tenure of the Assembly, the House was governed by decisions taken by the Speaker in matters of adjournment and prorogation.
Based on these considerations, the Court concluded that the Governor of Punjab must proceed to take a decision on the Bills submitted for assent on the basis that the sitting of the House conducted on 19 June 2023, 20 June 2023, and 20 October 2023 was constitutionally valid.
Read Order: Majibullah Mohammad Haneef V. Union of India
Chahat Varma
New Delhi, November 24, 2023: The Delhi High Court has dismissed a writ petition filed by an Indian national challenging his extradition to Oman to face murder charges. The Court upheld the extradition order passed by the Additional Chief Metropolitan Magistrate (ACMM).
Briefly stated, the petitioner, a permanent resident of Uttar Pradesh, India, worked as a labourer in Bidiyah, the Sultanate of Oman. On July 31, 2019, Bidiyah Police Station received a report of the death of an Omani national, along with his wife and three minor children. Preliminary investigations in Oman revealed fingerprints and DNA samples of the petitioner, along with those of other Fugitive Criminals (FCs). According to the preliminary investigation, all four FCs were found to have committed offenses of premeditated murder, a felony punishable under Article 302-A of the Penal Code of Oman. Subsequently, all four FCs absconded from Oman to India.
The single-judge bench of Justice Amit Bansal referred to the Extradition Act and observed that extradition concerning a Treaty State must be in relation to an offense provided for in the Extradition Treaty with that State. It was noted that India had an Extradition Treaty with the Sultanate of Oman, duly notified by the Ministry of External Affairs. Article 2 of the Extradition Treaty stipulated that individuals accused of an offense punishable under the laws of both Contracting States by imprisonment for not less than one year or for a more severe punishment shall be extradited.
The bench relied on the judgment rendered inSarabjit Rick Singh v. Union of India [LQ/SC/2007/1530], where the court had outlined the parameters of an inquiry to be conducted by the Magistrate under the Extradition Act: (i) The Magistrate needs to establish prima facie finding on whether the offense for which extradition is sought is of a political character or is otherwise an extraditable offense. (ii) No formal trial is necessary to determine the guilt of the fugitive criminal; only a report is required. (iii) According to Section 10 of the Extradition Act, exhibits and depositions, along with duly authenticated copies, can be accepted as evidence. (iv) Strict formal proof of evidence is not essential. During the inquiry, the Court may presume that the contents of the document would be proved.
The bench stated that the standard of proof in an inquiry in an extradition case is not of the same level as that required in a trial. This is because the scope of the inquiry is only to come to a prima facie conclusion and not to establish the actual guilt of the FCs.
The bench observed that the murder charge against the petitioner was not indicated as a political offense, and no arguments in this context were presented to the court by the petitioner.
Further, the bench noted that the offense of murder met the criteria for an extraditable offense, as it was punishable by more than one year of imprisonment in both India and Oman, as specified in the Extradition Treaty. The petitioner did not contest this aspect before the court.
The bench, after considering the evidence presented by the Requesting State, noted that there was sufficient material to establish a prima facie case supporting extradition. The evidence included detailed autopsy and medical reports, fingerprint reports linking the petitioner to various locations in the house, DNA sample reports matching those from the victims and the house to the petitioner, and CCTV footage showing the petitioner using the victim's ATM card. The petitioner's defence, asserting that the fingerprints and DNA samples were related to the petitioner's engagement in whitewashing the house and checking on the victims' well-being, was presented but not supported by any defence evidence during the inquiry.
Also, the bench, addressing the petitioner's contention, rejected the argument that authorities from the Requesting State should have appeared before the ACMM in India to authenticate the submitted documents. It emphasized that Section 10 of the Extradition Act did not require the presence of authorities from the Requesting State in Indian Courts for the documents to be admitted in evidence.
The bench further observed that the petitioner raised a contention asserting that a fair trial in the Requesting State, governed by Sharia/Islamic Law, would be compromised. The petitioner highlighted the difference in punishment for murder between India and Oman, emphasizing that in Oman, the offense is only punishable by the death penalty. However, the communication from the Embassy of the Sultanate of Oman, addressed the concerns raised by the petitioner. The assurances included the right to a fair and just trial, legal defence with a competent lawyer, provision of an interpreter, and the possibility of commutation of the death penalty to life imprisonment.
In light of the preceding discussion, the bench dismissed the present petition, and upheld the impugned order passed by the ACMM. As a result, the bench affirmed the decision of the Union of India to extradite the petitioner to the Sultanate of Oman.
Read Order: Yashovardhan Birla & Ors. V. Kamdhenu Enterprises Limited and Anr.
LE Correspondent
New Delhi, November 24, 2023: The Delhi High Court has dismissed applications filed by Kamdhenu Enterprises Ltd. and M/s Jads Services Pvt. Ltd. seeking the dismissal of petitions filed by Yashovardhan Birla, chairman of the Yash Birla Group of industries, under Section 138 of the Negotiable Instruments Act, 1881 (NI Act).
In the said case, the present applications, filed by Kamdhenu Enterprises Ltd. and M/s Jads Services Pvt. Ltd., sought the dismissal of petitions filed by Yashovardhan Birla on grounds of fraud and the initiation of proceedings under Section 340 read with Section 195(1)(b) of the Code of Criminal Procedure, 1973 (Cr.P.C.). The captioned petitions aimed to quash cases instituted by the applicant under Section 138 of the NI Act, pending in the Court of the Metropolitan Magistrate, Patiala House, Delhi.
The main crux of the arguments presented by the counsel appearing on behalf of the applicant was the alleged concealment by the non-applicant concerning the earlier petitions filed under Section 482 of the Cr.P.C. seeking similar relief as in the present petitions. The fact that both petitions primarily sought similar relief was not disputed. The earlier petitions were disposed of by a Single Judge of this Court vide order dated 14.08.2014.
The single-judge bench of Justice Amit Sharma referred to Arunima Baruah v. Union of India and Ors. [LQ/SC/2007/584], wherein it was observed that it is trite law that to enable the court to refuse to exercise its discretionary jurisdiction, suppression must be of a material fact. Material fact would mean material for the purpose of the determination of the lis, the logical corollary whereof would be that whether the same was material for the grant or denial of the relief. If the fact suppressed is not material for the determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction.
The bench considered the argument of alleged suppression of facts in the present petitions regarding previous petitions filed under Section 482 of the Cr.P.C. It emphasized that for suppression to be material, it must affect the rights of the parties in determining the case's merits. It was noted that the order from the previous petitions did not determine the current lis and simply allowed withdrawal with the liberty to raise contentions before the Metropolitan Magistrate. Therefore, the bench concluded that the alleged suppression did not impact the determination of the present case's merits.
The bench also stated that in the present applications, there was no averment made regarding the effect of non-disclosure of the earlier petitions and the order on the merits of the case. The bench expressed the view that the order could not be considered as res judicata between the parties.
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“Similarly, the non-mentioning of the filing of the applications under Section 145(2) of the NI Act and the discrepancy in the language of the list of dates and the content of the main petition is not a material discrepancy which warrants a dismissal of the captioned petitions, at the very outset, without an examination of the merits of the case,” further observed the bench.
Consequently, the bench ruled that the non-mentioning of details of the earlier petitions and their withdrawal did not amount to deliberate concealment. The bench emphasized that prosecution for perjury should be sanctioned only in cases where the perjury appears to be deliberate and conscious, and where there is distinct evidence of the commission of an offense. The bench also highlighted the need for exceptional circumstances and distinct evidence of deliberate perjury to initiate contempt proceedings.
With the above observations, the present applications were dismissed and disposed of accordingly.
Read Order: Inspector TD Cyril Mimin Zou V. Union of India & Ors
Chahat Varma
New Delhi, November 24, 2023: The Delhi High Court has refused to consider the petitioner's request for relaxation in height standards for the Indo-Tibetan Border Police (ITBP) recruitment process, leaving the question open for future consideration.
In the said case, the petitioner, Inspector TD Cyril Mimin Zou, was disqualified in the recruitment process for the ITBP on the grounds that his height measured 163 cm, falling short of the prescribed standard height of 165 cm. In an order dated 17.02.2023, it was directed that the respondent should allow the petitioner to proceed in the selection process. However, the results were to be kept in a sealed cover, and it was specified that the height issue should not be considered while permitting the petitioner to participate in the selection process. The respondents, in compliance with the directive, allowed the petitioner to continue in the selection process, temporarily overlooking the height condition.
Before the division bench of Justice Sanjeev Sachdeva and Justice Manoj Jain, the result of the petitioner was presented in a sealed cover, revealing that the petitioner had scored lower marks in merit compared to other candidates in the same category, i.e., Scheduled Tribe.
The counsel for the respondent asserted that there were no vacancies in the Scheduled Tribe category. In contrast, the counsel for the petitioner argued that there was, in fact, one vacancy in the Scheduled Tribe category within the ITBP.
The bench determined that, without delving into the mentioned controversy, it was evident that the petitioner did not hold the senior-most position in the order of merit within the Scheduled Tribe category. Even if there were one vacancy, the bench concluded that the vacancy should be filled by a person senior in merit to the petitioner.
“Since petitioner has not made it on merit, we are not examining the question of relaxation in terms of height raised by the petitioner. Said question is left open,” observed the division bench.
With the above observations, the Court directed for the release and publication of the petitioner's result and disposed of the petition accordingly.
Read Order: Rakesh Bhatnagar V. Central Bureau of Investigation
Chahat Varma
New Delhi, November 24, 2023: The Delhi High Court has quashed charges against DANICS officer in a cooperative society fraud case. The Court held that the charges were untenable in the absence of the appropriate sanction under Section 197 of the Code of Criminal Procedure (Cr.P.C.).
In this case, the Central Bureau of Investigation (CBI) had registered a case against several individuals, including Rakesh Bhatnagar, for offenses under various sections of the Indian Penal Code and the Prevention of Corruption Act. The case pertained to the alleged conspiracy and fraudulent activities involving the Arvind Cooperative Group Housing Society Limited in New Delhi. The society, which was purportedly not functioning in accordance with applicable laws and regulations, was wound up, and subsequently, individuals including Srichand, Anna Wankhede, Mohan Lal, and others were accused of conspiring to cheat the Government of NCT Delhi. The investigation revealed alleged instances of impersonation, forgery, cheating, and use of forged documents to fraudulently obtain land from the Delhi Development Authority at a lower rate. The investigation also uncovered the concealment of material information with a purported mala fide intention and conspiracy between the accused individuals. Rakesh Bhatnagar, working as Joint Registrar in the Registrar Cooperative Societies office, New Delhi, was implicated for irregularly recommending a note sheet, not ensuring the revival or liquidation status of the society, and endorsing recommendations for the approval of a freeze list of society members for land allotment to the Society. It was alleged that as a Joint Registrar, Bhatnagar failed to point out that the society was under liquidation and therefore ineligible for land allotment without revival.
The single-judge of Justice Tushar Rao Gedela bench highlighted that a strong suspicion, founded on material that can be translated into evidence at the trial stage, was essential to maintain an order on charges. It noted that such suspicion should not be based on pure subjective satisfaction or moral notions, but rather be premised on material that allows the court to entertain a prima facie view that the accused had committed the offense.
The bench observed that both the Trial Court and the CBI, presumed that the petitioner, was aware of the order for the liquidation of the society. However, it was admitted by the prosecution that this winding-up order was not part of the subject file and was discovered by the CBI in the society's file maintained by the DDA. Given this admitted factual situation, the bench found it difficult, if not impossible, to conclude that the petitioner had conscious knowledge of the said order. The observation suggested that it would be challenging to determine complicity or culpability on the part of the petitioner for wilfully concealing or overlooking such an order when approving a note put up by his subordinate.
The bench also observed that, on the date of approval by the petitioner, the rule in force indicated that the order of liquidation may not have been in effect. The definition of 'Defunct Society' as per Rule 2 (viii) of the Delhi Co-Operative Societies Rules 1973, which was applicable at the time of the alleged offence, required a formal and written order by the Registrar of Cooperative Societies for a society to be deemed defunct. No such order was found to exist or was presented by the CBI.
Thus, the bench held that the question of the petitioner being part of a larger conspiracy with all other co-accused persons, including other government servants, did not seem to be established. The bench emphasized that suspicion, unless found to be grave, should not lead to the framing of charges.
Further, the bench referred to the judgments rendered in Prof. N.K. Ganguly v. CBI New Delhi [LQ/SC/2015/1543] and A. Sreenivasa Reddy v. Rakesh Sharma & Anr [LQ/SC/2023/812], elucidating the legal principles concerning sanction under Section 197 of the Cr.P.C. The bench highlighted key aspects from these judgments. Firstly, it was emphasized that for the purpose of obtaining previous sanction from the appropriate government under Section 197 of the Cr.P.C., it was vital to establish that the alleged offense was committed in discharge of official duty by the accused. The bench also noted that the protection provided by Sub-section (1) of Section 197 of the Cr.P.C. was available only to public servants whose appointing authority was the Central Government or the State Government, and not to every public servant. Furthermore, the bench clarified that while in a prosecution under the Prevention of Corruption Act, sanction was mandatory for offenses exclusively under the Act, in cases under the general penal law against a public servant, the necessity of sanction under Section 197 of the Cr.P.C. depends on factual aspects. The bench emphasized the importance of establishing a ‘nexus’ between the act and the official duty of the public servant, and noted that to commit an offense punishable under the law can never be a part of the official duty of a public servant.
The counsel for the CBI had not contested the absence of sanction under Section 197 of the Cr.P.C obtained from the Competent Authority against the petitioner. Given this admission, the petition was allowed, and the order framing charges against the petitioner with respect to offenses under the PC Act as well as the offenses under the IPC were quashed and set aside.Top of Form
Read Order: Rihan V. The State (GNCTD)
Chahat Varma
New Delhi, November 24, 2023: The Delhi High Court has granted bail to a man accused of murdering his wife in a dowry death case, citing discrepancies in the prosecution's evidence.
The accused, Rihan, had filed a petition seeking regular bail in connection with an FIR registered under Section 306 of the Indian Penal Code (IPC) and subsequent charges filed under Sections 306, 201, 498A, and 302 of the IPC.
The prosecution's case was based on the information received from GTB Hospital regarding the admission and subsequent death of the victim, Shama. The deceased's father stated that she had complained of being tortured by her husband for money and alleged that the accused had threatened her when she refused to comply with his monetary demands.
The single-judge bench of Justice Vikas Mahajan emphasized that an application for bail involved a comprehensive evaluation of multiple factors. These factors include determining whether there is prima facie or reasonable ground to believe the accused committed the offence, assessing the nature and gravity of the charge, considering the severity of the potential punishment upon conviction, evaluating the risk of the accused absconding or fleeing if granted bail, examining the character, and standing of the accused, gauging the likelihood of the offence being repeated, appraising the reasonable apprehension of witnesses being tampered with, and weighing the risk of justice being thwarted by the grant of bail.
The bench also cited the case of Satish Jaggi v. State of Chhattisgarh [LQ/SC/2007/596], wherein the Supreme Court had held in cases of non-bailable offences, the primary factor to be taken into account while considering a bail application was the nature and the gravity of the offence.
In the present case, the bench observed that the father of the deceased, while initially stating in his examination-in-chief that his daughter used to inform him about the accused demanding Rs. 5 lakhs for purchasing a plot, later, during cross-examination, claimed ignorance about the specific date of the alleged demand made by the accused. Additionally, he admitted to not filing any complaint regarding the harassment or cruelty faced by the deceased at the hands of the accused.
The bench also noted that the children of the accused, who were examined and supported the prosecution's case, were of a young age—around 8 and 9 years. The bench pointed out that, given their young age and the fact that they had been in the custody of the maternal grandparents since the death of the deceased, the possibility of their statements being influenced or tutored cannot be ruled out at this stage.
Further, the bench observed that, considering the unequivocal opinion of the doctor that the cause of death was asphyxia due to antemortem hanging, it prima facie indicated a misalignment between the medical evidence and the prosecution's narrative. The medical expert did not attribute the death to strangulation, emphasizing that ligature marks in hanging cases differed from those in strangulation. The bench, acknowledging the gaps in the evidence favouring the accused, decided that, at this point, the court could not ignore these discrepancies.
The bench noted that, among the 22 witnesses listed by the prosecution, only public witnesses had been examined so far. Consequently, a significant number of witnesses remained to be examined, pointing towards the likelihood of a protracted trial.
Considering these factors and the accused's extended custody, the Court concluded that no useful purpose would be served in keeping the accused in judicial custody. It also emphasized that there was no indication of the accused having a criminal record or being a flight risk, and that material witnesses had already been examined without the possibility of the accused influencing them if granted bail.
Thus, considering the factors in entirety, the Court was of the view that the accused had made out a case for the grant of regular bail.
Read Order: Shakeel Ahmed V. Syed Akhlaq Hussain
Chahat Varma
New Delhi, November 24, 2023: In a recent ruling, the Supreme Court has upheld the importance of registered documents in property disputes, setting aside a Delhi High Court judgment that had granted possession of a property based on an unregistered agreement to sell.
The present appeal had challenged the judgment and order dated 23.08.2018 passed by the Delhi High Court. In the said case, Shakeel Ahmed (appellant), was the defendant in a suit for possession and mesne profits filed by Syed Akhlaq Hussain (respondent), concerning a property. The suit relied on a Power of Attorney, an agreement to sell, an affidavit, and a will executed in favour of the respondent. The appellant contested the suit, asserting ownership of the property through an oral gift (Hiba) from its owner, Laiq Ahmed, who happened to be appellant’s brother. He also argued that the suit was not maintainable as the documents forming its basis were not admissible or enforceable under the law.
The Trial Court framed eleven issues, and granted a decree for possession along with mesne profits to the respondent. In the subsequent appeal, the High Court confirmed the Trial Court's findings on Hiba and the suit's basis on an unregistered document. The High Court upheld the decree of possession on the grounds that the respondent filed the suit as an Attorney for Laiq Ahmed, the property owner, and Laiq Ahmed did not object to the respondent seeking possession. The High Court, based solely on this ground, confirmed the decree of possession and dismissed the appeal.
The division bench of Justice Vikram Nath and Justice Rajesh Bindal asserted that no title could be transferred concerning immovable properties based on an unregistered Agreement to Sell or an unregistered General Power of Attorney. According to the Registration Act, 1908, a document requiring compulsory registration would not confer any right, let alone a legally enforceable one to approach a Court of Law. Even if these documents, such as the Agreement to Sell and the Power of Attorney, were registered, it wouldn't imply that the respondent had acquired title over the property in question. The most that could be claimed, even with a registered agreement to sell, would be relief of specific performance in appropriate proceedings.
“Law is well settled that no right, title or interest in immovable property can be conferred without a registered document,” said the division bench.
The bench maintained that the restriction on registering documents did not override statutory provisions to confer title based on unregistered documents concerning immovable property. Given this established stance, the bench held that the respondent could not have sustained the suit for possession and mesne profits against the appellant, who was admittedly in possession of the property, whether as an owner or a licensee.
The bench concluded that if the respondent intended to evict the appellant, considering him a licensee, the appropriate course would have been to file a suit on behalf of the true owner or landlord under specific instructions of a Power of Attorney, claiming to have been receiving rent from the appellant. Alternatively, the respondent could have acted as the Attorney of the true owner to institute a suit on his behalf for eviction and possession. However, as the contents of the plaint did not align with these scenarios, the bench disagreed with the reasoning provided by the High Court in the impugned order.
Therefore, based on the reasons stated above, the Court determined that the challenged judgment should be set aside, and the suit should be dismissed. Consequently, the appeal was allowed, the impugned judgment was set aside, and the suit was dismissed.
Read Order: Sunil Malhotra & Anr. V. The State NCT of Delhi & Anr.
Chahat Varma
New Delhi, November 23, 2023: The Delhi High Court has quashed an FIR against the managing partners of Embassy Hotel in Connaught Place for the death of an employee due to electrocution.
The factual matrix of the case was that the present case involved the death of one Rakesh, employed in the kitchen of Embassy Hotel, Connaught Place, New Delhi. He had suffered an electric shock while lifting a cylinder, leading to his subsequent demise. The post-mortem had revealed that the cause of death was ‘electrocution and its complications’. Further investigation at the crime scene had resulted in the seizure of electrical wires and a cylinder, and CCTV footage was obtained for additional insights. The Electrical Inspector's report had highlighted the unsafe manner in which electric wires supplying power to a sensor of the sewage treatment plant were laid, pointing towards a breach of safety regulations. The Managing Partners of Embassy Hotel were arrested and interrogated, during which they had accepted responsibility for the hotel's management and day-to-day affairs. Following their interrogation, the petitioners were released on bail. Based on the investigation, a chargesheet was filed against the petitioners under Section 304A of the Indian Penal Code (IPC).
The counsel for the petitioner had submitted that a settlement had been reached between the petitioners and the deceased's father. This settlement was documented in the Memorandum of Settlement. As per the submission, the father of the deceased had expressed no objection to quashing the FIR. It was also indicated that the father had been duly compensated in accordance with the settlement terms, including the release of amounts to which he was legally entitled, such as life insurance, provident fund, pension, and gratuity.
On the contrary, the Additional Public Prosecutor (APP) for the State had opposed the present petition, emphasizing that the report of the Electrical Inspector established prima facie evidence of the petitioners' gross negligence. The APP argued that despite the settlement reached between the parties, the critical factor of the petitioners' gross negligence contributing to the individual's death could not be overlooked. It was further submitted that the offence under Section 304A of the IPC was not merely a private offence. It was a public offence, with far reaching consequences on the social fabric.
The single-judge bench, presided over by Justice Amit Sharma, referred to the case of Satyam Kaushik v. State and Ors. [LQ/DelHC/2015/2766], where a Single Judge of this Court had quashed an FIR under Section 279/304A of the IPC. The decision was based on the absence of culpable negligence on the part of the petitioner, and a settlement, that had been reached between the parties, with the legal heirs of the deceased duly compensated.
The bench also referred to the judgment rendered in Bhanwar Singh v. State and Anr. [LQ/DelHC/2021/1508], where a co-ordinate bench of this Court had quashed an FIR under Section 288/304A of the IPC. In this case, the deceased, while carrying out some construction work, had fallen from the third floor of the petitioner's house, which was under construction, resulting in his death. The observation was that the incident was purely accidental, and since the parties had amicably resolved the dispute, continuing with the proceedings would serve no useful purpose.
Further, the bench observed that it was a settled principle of law that in cases of non-compoundable offences, where the parties had arrived at a settlement, the High Court possessed inherent power to quash a criminal proceeding. This power was exercised under Section 482 of the Cr.P.C. as well as Article 226 of the Constitution of India. It was reiterated that the inherent powers of the High Court were of a wide plenitude, and in their exercise, the guiding factors should be to secure the ends of justice or to prevent the abuse of the process of any court.
Additionally, the bench held that since the scheme of the Cr.P.C. permitted compounding through legal heirs in respect of offences 'compoundable' under Section 320 of the Cr.P.C., the extraordinary and inherent powers under Article 226 of the Constitution or Section 482 of the Cr.P.C. could be invoked to quash FIRs through legal heirs in cases of non-compoundable offences as well.
“Criminality in case of negligence arises when there is no consciousness as to the consequences which may follow but circumstances are such that shows it was incumbent upon the actor to take certain precautions. It is further settled law that for a negligent act to give rise to a criminal liability, the negligence ought to be ‘gross’, which is a standard to be decided on the basis of facts and circumstances of each case,” further observed the bench.
The bench heldthat in the said case, the prosecution had failed to establish through evidence that the petitioners demonstrated wanton disregard or deliberate breach of duty to take ordinary care and precaution, which are essential elements to categorize the case as 'gross negligence.' The report from the Electricity Inspector, on which the prosecution relied, pertained to an inspection conducted post-incident, and there was no evidence to suggest that the broken PVC conduit pipe was attributed to the petitioners prior to the incident. Additionally, there was no indication that the petitioners had knowledge of the broken pipe before the incident occurred.
The bench also noted that the petitioners had fulfilled the statutory requirements regarding the payments to be made to the deceased. Additionally, it was noted that the petitioners had already complied with the terms of the settlement and had paid the compensation to the deceased's father. In light of the foregoing discussion, the bench opined that the interest of justice would be better served if the present FIR, along with all consequent proceedings, were quashed.
Consequently, the petition was allowed, and in view thereof, the FIR under Section 304A of the IPC and all other consequential proceedings emanating therefrom, including the chargesheet pending in the Court of Metropolitan Magistrate, Patiala House, New Delhi, were hereby quashed.
Read Order: Naveen Uppal @ Sunny V. State (NCT of Delhi)
Chahat Varma
New Delhi, November 23, 2023: The Delhi High Court has granted bail to a man accused of murder, citing the possibility of a consensual romantic relationship between the accused and the deceased, along with the notion of a suicide pact.
The petitioner had filed a bail petition under Section 439 of the Criminal Procedure Code (Cr.P.C.), seeking release in a case registered under Section 302 of the Indian Penal Code (IPC), 1860, along with Sections 25/27/54/59 of the Arms Act, 1959.
The prosecution's case revolved around the discovery of a deceased woman in a Ford Eco Sport car at Hindu College. The individual found sitting in the driver's seat, identified as Naveen Uppal @ Sunny (petitioner), disclosed the woman's name as Anjali Devi. An inquiry revealed that the petitioner and the deceased had been in a relationship for several years, despite the fact that the deceased was married with children, and the petitioner was married to another woman. According to the prosecution, the petitioner asked the deceased to leave him, and when she refused, he allegedly shot her.
The single-judge bench of Justice Vikas Mahajan noted that the petitioner and the deceased had a cordial relationship, and their families were acquainted. Given these circumstances, the bench acknowledged the potential for a consensual romantic relationship between the petitioner and the deceased, refraining from ruling it out at this stage.
However, the bench noted that the petitioner and the deceased had a suicide pact, and after the deceased committed suicide, the petitioner attempted to do the same. The attempt was unsuccessful as the country-made pistol did not fire when the petitioner tried to use it. The report from the FSL indicated that the pistol was in normal working order, but the cartridge recovered from the petitioner did not fire despite multiple attempts.
The bench observed that one of the motives ascribed to the petitioner by the prosecution was non-repayment of money borrowed from the deceased and her husband. However, a review of the conversation transcript indicated that the petitioner and his mother had already agreed to return the money, casting doubt on the alleged motive for the murder.
The bench also took into account a transcript of an audio recording from the day before the alleged incident indicating the deceased's expression of love for the petitioner and her statement that she cannot live without him. Additionally, the deceased expressed her desire to not continue her life without the petitioner's company, while the petitioner also expressed fondness for the deceased. This seemed to contradict the prosecution's version that the petitioner killed the deceased after she refused to leave him.
The benchstated that while the probative value of testimonies and evidence will be assessed by the Trial Court later, in the present context of the petitioner's bail application, the possibility of a consensual romantic relationship between the petitioner and the deceased, along with the notion of a suicide pact where the deceased shot herself, cannot be dismissed. The testimonies of prosecution witnesses and other evidence, considered solely for the purpose of the bail application, appeared to favour granting bail to the petitioner.
The Court also said it could not overlook the fact that the prosecution had cited 64 witnesses, with only 24 of them being examined over the last 7 years. It was evident that the trial was going to be protracted.
Thus, considering the above discussed circumstances in entirety, the Court was of the view that the petitioner was entitled to grant of regular bail pending trial.
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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