Islamabad, January 5: Pakistan’s Supreme Court on Tuesday ordered the Evacuee Property Trust Board (EPTB) to start reconstruction of a century-old Hindu temple that was vandalised and set on fire by a mob in Khyber Pakhtunkhwa province last week, saying the attack has caused “international embarrassment” to the country.
The apex court, which took notice of the attack and ordered the local authorities to appear before the court on January 5, also directed the board to submit in court details of all functional and non-functional temples and gurdwaras across Pakistan, Dawn newspaper reported.
The attack on the temple in Terri village in Khyber Pakhtunkhwa’s (KP) Karak district on Wednesday by members of radical Jamiat Ulema-e-Islam party (Fazal ur Rehman group) drew strong condemnation from human rights activists and the minority Hindu community leaders.
During the hearing on Tuesday, a three-member bench headed by Chief Justice Gulzar Ahmed also directed the EPTB to clear encroachments from temples across the country and take action against officials involved in the encroachments, news agency PTI reported.
Justice Ahmed said that the Karak incident had caused “international embarrassment to Pakistan”.
The EPTB is a statutory board that manages religious properties and shrines of Hindus and Sikhs who had migrated to India following the partition.
Khyber Pakhtunkhwa chief secretary, police chief, and Dr Shoaib Suddle, the head of a commission on minorities’ rights, were also present during the hearing.
Suddle, who visited the temple in Karak district and presented a comprehensive report in the case to the Supreme Court on Monday after it asked the one-man commission on the rights of minorities to probe the attack, told the court that the provincial EPTB “did not protect the shrine”, the paper said.
Justice Ijazul Ahsan then questioned the police chief on how the attack could have happened when there was a police check post next to the temple.
“Where were your intelligence agencies?” the judge asked.
The police chief told the court that a protest by the Jamiat Ulema-i-Islam-Fazl (JUI-F) was going on near the site on the day of the incident which was sponsored by Maulana Faizullah.
“Out of the six ulema at the protest, only Maulvi Mohammad Sharif incited the crowd,” the police chief said.
The official informed the court that 109 people involved in the attack were arrested while 92 police officials, including the superintendent of police (SP) and deputy superintendent of police (DSP) who were on duty at the time, were suspended.
Chief Justice Ahmed said that “suspension was not enough”.
The judge also slammed the EPTB chairman, saying he should “not sit on the chairman’s seat with government mentality”.
“Your employees are doing business on the land meant for shrines. Arrest them and start the reconstruction of the temple,” Justice Ahmed directed.
“Money should be taken from Maulvi Sharif for reconstruction of the shrine,” the chief justice remarked.
Justice Ahsan observed that the EPTB “has the money to construct its own buildings but does not have money for Hindus”.
The bench directed that details of functional and non-functional shrines, records of disputes on EPTB lands and a report on the performance of the EPTB chairman be submitted to the court in two weeks. It also directed the KP branch of the EPTB to hold discussions with the provincial minorities commission, the paper said.
The apex court said a detailed judgement would be released later and adjourned the hearing for two weeks.
Last week, Khyber-Pakhtunkhwa Chief Minister Mahmood Khan said that his government will rebuild the temple. He said the government has issued orders to rebuild the temple.
The temple was attacked by the mob after members of the Hindu community received permission from local authorities to renovate its decades-old building, according to witnesses.
The mob had demolished the newly constructed work alongside the old structure.
Leader of Hindu Community Peshawar Haroon Sarab Diyal said that a samadhi of a Hindu religious leader exists at the temple site and Hindu families from across the country do visit the samadhi on every Thursday.
The Samadhi of Shri Paramhans Ji Maharaj is considered sacred by the Hindu community. It was built where he died in 1919 in Teri village of Karak.
The controversy over the samadhi erupted many decades ago.
According to the details submitted to the Supreme Court in 2014 in a case about it, the Hindus had been visiting the shrine till 1997 when it was dismantled by the locals.
The apex court in 2014 ordered the Khyber Pakhtunkhwa government to restore and reconstruct the Hindu shrine.
The order was issued over a petition of a Hindu lawmaker who had claimed that the shrine had been occupied by an influential cleric of the area.
Hindus form the biggest minority community in Pakistan.
According to official estimates, 75 lakh Hindus live in Pakistan. However, according to the community, over 90 lakh Hindus are living in the country.
The majority of Pakistan’s Hindu population is settled in Sindh province where they share culture, traditions and language with Muslim residents. They often complain of harassment by the extremists.
New Delhi, January 5: The Lahore high court has held that the so-called ‘virginity tests’ such as the ‘two-finger test’ and the hymen test carried out on victims of rape and sexual assault are unconstitutional.
Justice Ayesha A. Malik held that such tests were discriminatory and against the right to life and right to dignity enshrined in the constitution of Pakistan, The Wire reported.
“The virginity test by its very nature is invasive and an infringement on the privacy of a woman to her body. It is a blatant violation of the dignity of a woman. The conclusion drawn from these tests about a woman’s sexual history and character is a direct attack on her dignity and leads to adverse effects on the social and cultural standing of a victim,” the court held.
The court also referred to a judgment by the Indian Supreme Court in Rajesh & another v State of Haryana where the apex court had held that the ‘two-finger test’ and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. It held that there was consensus that ‘virginity tests’ like the ‘two finger test’ and hymen test could not indicate definitively that there was any sexual violence.
Additionally, the Lahore high court also referred to judgments by the Allahabad and Gujarat high courts. “These courts have all held that there is no scientific or medical basis to carry out virginity testing in the form of two finger test or to rely on the status of the hymen whether it is torn or intact as it has no relevance to the investigation into the incident of rape or sexual abuse,” the judge said while disposing of writ petitions challenging the use and conduct of virginity tests.
The court also said that such tests were unscientific, had no medical basis and also offended the personal dignity of the female victim. “It is a humiliating practice, which is used to cast suspicion on the victim, as opposed to focusing on the accused and the incident of sexual violence. This in effect amounts to gender based discrimination as it is neither a medical condition which requires treatment nor does it provide any clinical benefit to the victim,” the court observed.
“The issue is whether the accused committed rape on the victim in the time and circumstances complained of. If the victim, is found to not be a virgin, it cannot and does not suggest that she was not raped or sexually abused. What it does is place the victim on trial in place of the accused and shifts the focus on her virginity status. In this regard, the victim’s sexual behaviour is totally irrelevant as even the most promiscuous victim does not deserve to be raped, nor should the incident of sexual violence be decided on the basis of a virginity test,” the judgment by the Lahore high court read.
Furthermore, it directed the federal and provincial governments to take steps to ensure that virginity tests are not carried out in medico-legal examinations of victims of rape and sexual abuse.
After the Supreme Court of India found the test to be violative of fundamental rights, the Ministry of Health and Family Welfare in 2014 issued guidelines for medico-legal care for survivors of sexual violence. They sought to eliminate practices such as the “two-finger test”. However, a report in 2017 by Human Rights Watch found that doctors continue to conduct the “invasive, humiliating, and inhumane finger test to make degrading characterisations”.
The Lahore high court, apart from asking the government to mandate such tests as ‘illegal’, also said the government must make a ‘concerted effort’ to ensure that the practice does not continue.
“Change can only be brought about when the people responsible for the change understand and acknowledge the reasons for changing old practices which no longer find any justification. Merely documenting change and not implementing change does not mean that the Federation or the Provincial Government have acted in accordance with the Constitution, the law and international obligations. Hence a concerted effort must be made so as to ensure that virginity tests are stopped in totality,” the judgment read.
https://thewire.in/south-asia/lahore-high-court-two-finger-tests
London, January 4 (NYT): A British judge ruled on Monday that the WikiLeaks founder Julian Assange cannot be extradited to the United States to face trial on charges of violating the Espionage Act, saying he would be at extreme risk of suicide.
The decision in the high-profile case grants Mr. Assange a major victory against the U.S. authorities who charged him over his role in obtaining and publishing secret military and diplomatic documents related to the wars in Iraq and Afghanistan, The New York Times reported.
Rights groups and advocates applauded the ruling, but many expressed concern about its rationale. The judge focused on Mr. Assange’s mental health issues, but rejected the defense argument that the charges were an attack on press freedom and were politically motivated.
Mr. Assange, 49, who was present at Monday’s hearing and wearing a face mask, was indicted in 2019 on 17 counts of violating the Espionage Act and conspiring to hack government computers in 2010 and 2011. If found guilty on all counts, he could face a sentence of up to 175 years in prison.
The judge, Vanessa Baraitser of Westminster Magistrates’ Court, said in Monday’s ruling that she was satisfied that the American authorities had brought forth the case “in good faith,” and that Mr. Assange’s actions went beyond simply encouraging a journalist. But she said there was evidence of a risk to Mr. Assange’s health if he were to face trial in the United States, noting that she found “Mr. Assange’s risk of committing suicide, if an extradition order were to be made, to be substantial.”
She ruled that the extradition should be refused because “it would be unjust and oppressive by reason of Mr. Assange’s mental condition,” pointing to conditions he would most likely be held under in the United States.
The ruling on Monday at the Central Criminal Court in London, known as the Old Bailey, was a major turning point in a legal struggle that has lasted nearly a decade. But that battle is likely to drag on, as U.S. prosecutors indicated they would appeal. They have two weeks to do so.
A crowd of supporters outside the court erupted in cheers when the verdict was delivered.
“Today, we are swept away by our joy at the fact that Julian will shortly be with us,” Craig Murray, a former British diplomat and rights activist who has been documenting the hearing, told reporters outside the courthouse. He said that while he was “delighted we have seen some humanity,” the ruling on mental health grounds was an “excuse to deliver justice.”
Rights groups also applauded the denial of the extradition request, but some expressed concerns about the substance of the ruling. Among them was Rebecca Vincent, the director of international campaigns for Reporters Without Borders.
“We disagree with the judge’s assessment that this case is not politically motivated, that it is not about free speech,” Ms. Vincent said. “We continue to believe that Mr. Assange was targeted for his contributions to journalism, and until the underlying issues here are addressed, other journalists, sources and publishers remain at risk.”
Stella Moris, Mr. Assange’s partner, echoed the sentiment, saying that while she was pleased that the extradition request had been rejected, the charges had not been dropped. She called on President Trump to “end this now.”
In a statement, the Justice Department said it was “extremely disappointed” by the decision but “gratified that the United States prevailed on every point of law raised,” and noted that it would still seek to extradite Mr. Assange.
Mr. Assange, who is Australian, rose to prominence in 2010 by publishing documents provided by the former U.S. Army intelligence analyst Chelsea Manning. He then took refuge at the Ecuadorean Embassy in London to escape extradition to Sweden, where he faced an inquiry into rape allegations that was later dropped. In the meantime, he kept running WikiLeaks as a self-proclaimed political refugee. He spent seven years there before his arrest by the British police in 2019.
During the extradition hearing, which began in February but was postponed because of the coronavirus pandemic, lawyers representing the United States argued that Mr. Assange had unlawfully obtained secret documents and put lives at risk by revealing the names of people who had provided information to the United States in war zones.
“Reporting or journalism is not an excuse for criminal activities or a license to break ordinary criminal laws,” James Lewis, a lawyer representing the U.S. government, told the court last year.
Mr. Assange’s lawyers framed the prosecution as a politically driven attack on press freedom.
“The greatest risk for him in the U.S. is that he won’t face a fair trial,” said Greg Barns, an Australian lawyer and adviser to Mr. Assange. “Then he could spend the rest of his life in prison, in solitary confinement, treated in a cruel and arbitrary fashion.”
The hearing was stymied by multiple technical glitches and restricted access for observers, which rights groups and legal experts said hurt the court’s credibility and hampered their ability to monitor the proceedings.
Mr. Assange has been held at Belmarsh, a high-security prison in London, since 2019. Mr. Assange remained in custody after the ruling was announced on Monday, but his defense team said they planned to file an application for bail on Wednesday as the appeals process continued.
Many have hailed Mr. Assange as a hero for transparency who helped expose U.S. wrongdoings in Iraq and Afghanistan. But he has also been criticized as a publicity seeker with an erratic personality. The publication by WikiLeaks of emails associated with Hillary Clinton’s presidential campaign, which U.S. officials have said were hacked by Russian intelligence to damage her candidacy, also undermined his reputation with many previous supporters.
Mr. Assange jumped bail in 2012 and fled into the Ecuadorean Embassy in London. During his years there, he gave news conferences and hosted a parade of visitors, including the singer Lady Gaga and the actress Pamela Anderson. He had also angered embassy workers by riding his skateboard in the halls.
By the time he was dragged away, Mr. Assange had become an unwelcome guest. Weeks later, he was indicted in the United States.
Mr. Assange’s mental and physical health deteriorated while he was held in prison in Britain, experts warned. Nils Melzer, the United Nations special rapporteur on torture and ill treatment, said in November 2019 that the punishment against Mr. Assange amounted to “psychological torture.”
Doctors said that his health had worsened during the hearing.
News and press freedom organizations, as well as rights groups, have long warned that Mr. Assange’s indictment and a potential trial in the United States would set a dangerous precedent for press freedom.
Prosecutors have never charged a journalist under the Espionage Act, but legal experts have argued that prosecuting a reporter or news organization for doing their job — making valuable information available to the public — would violate the First Amendment. Mr. Assange’s actions remain difficult to distinguish in a legally meaningful way from those of traditional news organizations.
Jameel Jaffer, the executive director at the Knight First Amendment Institute at Columbia University, warned that the charges that Mr. Assange still faces “cast a dark shadow” over journalism. The charges focused on pure publication of the material were of particular concern, he said.
“Those counts are an unprecedented attack on press freedom,” he said in a statement, “one calculated to deter journalists and publishers from exercising rights that the First Amendment should be understood to protect.” — NYT
January 12: The number of prisoners in England and Wales who have tested positive for coronavirus and died has risen by 50 per cent in a month as cases behind bars surge.
In December, 24 prisoners died either having tested positive for Covid or where there was a clinical assessment that the virus was a contributory factor in their deaths, bringing the total number of deaths to 71, the Guardian reported.
According to weekly statistics, about 2,400 prisoners have tested positive since the start of December, bringing the total number of positive cases since the start of the pandemic to 4,800, a rise of about 70% in a month.
The increase in prison cases comes as cases surge in the community, with a new, more transmissible variant of the virus. The Ministry of Justice has been testing all symptomatic prisoners since April.
Sources told the Guardian Covid-19 was not the main contributing factor to the death of a prisoner in a third of the cases. It is understood that vulnerable prisoners are expected to be vaccinated in line with the vaccine rollout.
But David Lammy, the shadow justice secretary, said the government had lost control of the crisis. He said: “It is frightening that the government has lost control of the virus in prisons. More staff and inmates will die if ministers do not get control of this pandemic.
Outbreaks in prisons can also pump the virus outside of their walls, overwhelming local hospitals and infecting the rest of the community. The government must rapidly roll out vaccines across the country so that we can secure our economy, protect our NHS and rebuild Britain.”
Istanbul, December 29: After more than three years in prison without conviction, Turkish philanthropist Osman Kavala’s appeal for release was rejected by the nation’s Constitutional Court Tuesday, which ruled the prominent businessman’s detention had not violated his right to liberty and security.
The ruling extends Kavala’s imprisonment during court proceedings in which he faces espionage-related charges, ignoring a 2019 ruling by the European Court of Human Rights (ECHR) for his immediate release as well as numerous calls since then by the Council of Europe’s Committee of Ministers on Turkey to implement the ECHR decision, Al-Monitor reported.
The ruling comes days after Turkish President Recep Tayyip Erdogan reiterated calls to implement “democratic and economic reforms” in the country, casting doubt on whether such promises will be impact high-profile trials, including that of Kavala and the jailed former Co-chair of Turkey’s pro-Kurdish Peoples’ Democratic Party Selahattin Demirtas.
“His current detention is illegal,” Emma Sinclair-Webb, Turkey director for Human Rights Watch, told Al-Monitor regarding Kavala’s case.
She added, “This is the reason why people go to the European Court of Human Rights in the first place. There are no domestic remedies available in Turkey and we’re back to that again.”
Kavala was first jailed in November 2017 and later accused of financing the anti-government protests in 2013. He was acquitted of those charges in February 2020 and immediately rearrested on charges of attempting to overthrow the government by aiding a 2016 coup attempt.
Earlier this year, Kavala’s defense team applied to the Constitutional Court on the grounds his continued detention violated his rights. This appeal was rejected in a 8-7 vote by Turkey’s top court Tuesday, extending Kavala’s detention until his next hearing, currently scheduled for Feb. 5.
In his most recent court appearance, on Dec. 18, Kavala highlighted the lack of evidence to support the charges against him and rejected all accusations.
“None of the charges in this indictment are based on any facts, evidence or objective evaluation of a concrete criminal act,” Kavala said during his last trial, adding his continued detention despite the 2019 ECHR ruling for his release “has become an ongoing torment.”
Following Kavala’s detention in 2017, Erdogan referred to the prominent philanthropist, known locally for his support of civil society organizations, as the “Soros of Turkey,” likening the businessman to Hungarian-American philanthropist George Soros for allegedly financing anti-government groups and activities. More recently, Erdogan last month dismissed calls from within his own Justice and Development Party (AKP) to release Kavala along with Demirtas.
On Tuesday, pro-government media in Turkey reporting on the Constitutional Court ruling also highlighted Kavala’s work to establish the Turkish branch of Soros’ Open Society Foundation.
Such developments have raised concerns among international observers and governments that have also called for Kavala’s release and that his ongoing trial is politically motivated. Following Tuesday’s ruling, Sinclair-Webb noted Kavala’s detention was in violation of the Turkish Constitution, which states international law takes precedence over domestic law when a conflict arises between the two.
“Here we have a decision of eight members of the Constitutional Court, which is just entirely influenced by Erdogan’s speeches, which are being taken as orders,” Sinclair-Webb told Al-Monitor.
The court ruling and current government rhetoric regarding Kavala’s case also come in contrast to a recent discussion between Erdogan and European Council President Charles Michel, which came amid tense EU-Turkey relations regarding a range of policy issues.
Following a European Union summit earlier this month, in which bloc members agreed to move forward with sanctions on Ankara over its energy prospecting activities in disputed areas of the eastern Mediterranean, the Turkish leader told Michel in a Dec. 15 phone call that Turkey still wants to build its future with the EU.
Paul Levin, director of the Stockholm University Institute for Turkish Studies, said releasing Kavala would have been an “easy way for Erdogan to show goodwill” after the phone call.
“Instead, we see a continuation of the ‘bait-and-switch’ tactic that Erdogan has employed in relations with the EU in recent years,” Levin told Al-Monitor.
“Conciliatory promises are followed by provocative or even hostile acts, and when the heat is turned up too high, goodwill gestures are again implemented to turn it down.”
The Kavala court ruling came on the same day the United Kingdom signed a free trade agreement with Turkey following the conclusion of Brexit negotiations with Brussels. Though the United Kingdom is no longer an EU member, diverging interests and economic ties between Turkey and individual European nation’s will likely complicate future steps by the ECHR. Levin said the ECHR lacks “teeth” and is dependent on member institutions to abide by its rulings and norms regarding human rights and democracy.
“The state of affairs regarding the rule of law in Turkey is dismal and not even a different decision in this case would have changed that fact,” Levin said in reference to the Kavala case.
He added, “Turkey has fallen precipitously in most rankings of rule of law and freedom over the past decade and substantial and sustained reforms would be needed to change that situation. Such reforms are unlikely under the current regime.”
December 28: The California Supreme Court ruled Monday that inmates who have been convicted of nonviolent sex crimes may be eligible for early parole consideration as part of a ballot measure that nearly two-thirds of voters approved of four years ago.
“The initiative’s language provides no indication that the voters intended to allow the (Corrections) Department to create a wholesale exclusion from parole consideration based on an inmate’s sex offense convictions when the inmate was convicted of a nonviolent felony,” wrote Chief Justice Tani Cantil-Sakauye in the unanimous decision, the Los Angeles Times reported.
Former Gov. Jerry Brown, who championed the 2014 initiative as a way to reduce prison populations and costs by speeding up chances for parole, has repeatedly said he and other proponents never intended for it to cover sex offenders.
But lower appeals courts ruled that the plain language of the initiative means they cannot be excluded from consideration as nonviolent offenders, and the high court agreed.
The ballot measure, the justices ruled, “is not ambiguous concerning its scope regarding offenders who were previously convicted of a registerable sex offense or who are currently convicted of a registerable sex offense that the Department has itself defined as nonviolent.”
Under California law, violent offenses include things like rape, sodomy and continuous sexual abuse of a child. But the definition leaves out many other offenses, like pimping, incest, indecent exposure and possessing child pornography.
The ruling could allow parole consideration for about 20,000 inmates, said Sacramento attorney Janice Bellucci, who argued the case and also is executive director of the Alliance for Constitutional Sex Offense Laws. About half are now serving time for sex crimes while the other half are in prison for some other offense like burglary or drugs but were previously convicted of a sex crime.
But the court put the number much lower, based on the state corrections department’s earlier figures. While about 22,400 inmates were required to register for a sex offense based on a current or prior conviction, more than 18,000 were serving time for a violent offense. That left about 4,400 inmates.
Bellucci didn’t disagree with the lower figure but said it’s unclear how corrections officials will rewrite their regulations based on the high court’s ruling. Sometimes they have argued that all sex offenders are by definition violent, while other times they have used the narrow definition in state law, she said.
She called the ruling “a significant victory” for inmates convicted of sex offenses.
Corrections department spokeswoman Dana Simas echoed the high court’s emphasis that the decision does not necessarily mean sex offenders will be paroled.
Parole boards can still choose not to allow individual earlier releases, which the justices said leaves corrections officials “with ample room to protect public safety” without the broad prohibition the corrections department had argued was needed for sex offenders.
“The Board of Parole Hearings may consider an inmate’s prior or current sex offense convictions when evaluating the inmate’s suitability for parole,” the justices said, but it may not deny “even the mere possibility of parole to an entire category” of inmates.
The ruling, Simas said, “will have no impact on the existing exclusion of individuals convicted of violent felony sex offenses from this parole process.”
The justices had stayed eight other related cases while it considered Monday’s ruling.
The ballot measure allows officials to consider paroling inmates convicted of nonviolent crimes after they have served their basic sentence and before they have completed sometimes lengthy additional terms for enhancements for things like using a gun, having prior criminal convictions, or being involved in a street gang.
The high court thus ruled “that nonviolent offender parole eligibility must be based on an inmate’s current conviction” and offenders cannot be excluded from consideration for what the state deems a nonviolent sex offense.
https://www.latimes.com/metro/story/2020-12-28/california-supreme-court-sex-offenders-early-parole
Elite hackers tried to break into the World Health Organisation earlier this month as part of what a senior agency official said was a more than two-fold increase in cyberattacks.
WHO Chief Information Security Officer Flavio Aggio said the identity of the hackers was unclear and the effort was unsuccessful. But he warned that hacking attempts against the agency and its partners have soared as they battle to contain the coronavirus, which has killed more than 15,000 worldwide.
The attempted break-in at the WHO was first picked up around March 13, when a group of hackers activated a malicious site mimicking the WHO’s internal email system. The WHO’s Aggio confirmed that the site had been used in an attempt to steal passwords from multiple agency staffers.
“There has been a big increase in targeting of the WHO and other cybersecurity incidents,” Aggio said. “There are no hard numbers, but such compromise attempts against us and the use of (WHO) impersonations to target others have more than doubled.”
The WHO published an alert last month warning that hackers are posing as the agency to steal money and sensitive information from the public.
Source: Reuters
March 28: A barrage of text messages have been sent to doctors across the US, urging them to sign a petition in support of hydroxychloroquine, an anti-malaria drug touted by President Donald Trump as a potential miracle cure for COVID-19, the contagious and sometimes deadly respiratory disease caused by the new coronavirus.
“Tell Trump to CUT RED TAPE & make hydroxychloroquine available to you and your patients,” the message said.
Despite Trump’s claims that hydroxychloroquine could be among “the biggest game changers in the history of medicine,” the decades-old drug has no proven effect on COVID-19.
The text message barrage, aimed at medical professionals across the United States, was executed by the Job Creators Network Foundation – one of two related groups founded and funded by billionaire Trump supporters.
They include Home Depot Inc. co-founder Bernie Marcus – who set up the group – and tycoon Philip Anschutz, via his eponymous foundation. Andy Puzder, who was briefly Trump’s nominee for Secretary of Labor, was once also a prominent member of the network.
Foundation President Elaine Parker said her group was not necessarily endorsing the treatment. “We are not advocating for use of the drug, only access to the drug for doctors who determine that’s the best course of treatment for their patient,” she said in an email.
London, April 1: Barclays is not liable for the alleged sexual assault of more than 100 patients by a doctor carrying out medical examinations on the bank’s behalf, UK’s Supreme Court has ruled.
The UK’s highest court overturned earlier rulings that the bank was “vicariously liable” for any assault proven to have been carried out by Dr Gordon Bates, who died in 2009 aged 83.
The test case arose out of a damages action brought by a group of 126 claimants, who cannot be named for legal reasons, who claimed they were assaulted by the doctor.
The issue examined was whether an employer was “liable for sexual assaults committed by a medical practitioner in the course of medical examinations carried out at the employer’s request, either before or during the claimant’s employment”.
The panel of five supreme court justices were unanimous in allowing the bank’s appeal, saying Bates was “a classic independent contractor” and the person engaging him was “not vicariously liable”.
The claimants, mostly women, were examined without chaperones between 1968 and 1984 by Bates at his home in Newcastle upon Tyne. The majority were pre-employment checks of prospective employees, with some patients as young as 16.
A police investigation, begun in 2012 three years after Bates’s death, concluded there would have been sufficient evidence to pursue a prosecution if he had not died.
The Guardian
August 2, 2021: It started with Jimmy Savile and it ended nine years later in an airless courtroom in Birmingham.
Daisy, now 45, was taken into care days after her birth and was adopted when she was seven months old. She had known since she read her social services files aged 18 that her birth mother was 13 years old when she was born and her birth father was Carvel Bennett, then 28. The files dating back to 1975 state: “The matter was investigated by police but never brought to court.”
While the discovery was profoundly shocking and disturbing, it wasn’t until the scandal broke about Jimmy Savile’s prolific sex abuse – including the rape of dozens of children – that she decided to try to track down her birth father in the hope of getting him prosecuted for raping her birth mother.
Daisy battled with the police and other agencies for almost a decade before Bennett was charged. For much of that time she encountered reluctance to bring the prosecution because she was told it was her birth mother, not her, who was the victim of the crime in legal terms. In going public with her story she hopes to raise awareness that children conceived through rape are victims, too.
Speaking exclusively to the Guardian, she said: “I’m a walking crime scene. I wanted justice for my mum and I wanted justice for me. The ramifications of what Bennett chose to do have shaped my entire life. It’s because of that crime that I’m alive. I’m living, breathing proof of a child rape.”
Daisy was adopted by a white family and struggled with her childhood in an overwhelmingly white environment. “I can remember being really little and thinking about my birth mother every day. I didn’t think about my paternity but race was a huge issue for me,” she said.
Daisy made contact with her birth mother after she turned 18 and first met her when she was 20.
When the Jimmy Savile scandal broke in 2012, Daisy became determined to track down her birth father and bring him to justice. It was a bitter blow when police informed her that Bennett could not be prosecuted on the basis of her evidence because she was not the victim of the alleged rape.
In a letter dated 2 April 2015, the professional standards department at West Midlands police said to Daisy that her complaint fell into the category of: “vexatious, oppressive or otherwise an abuse of process”.
“I have been harmed directly by the perpetrator’s actions,” she said. “To be informed that my complaint is vexatious when a child sex offender is living out his retirement in the same town in which he committed a serious sexual offence against a child is shocking to me.”
Daisy says she wants to see major changes in the law, including to the legal definition of who is a victim, and greater accountability from the police and from councils. “I would like an apology from both police and social care for failing 46 years ago until the present day,” she said. “They have left children in Birmingham at risk of a child rapist.”
While Daisy’s journey towards justice has been long and difficult, she said there have been some positives. “I’ve changed. I’ve realised my own power and persistence. I’ve had some really dark times but the injustice has been so unpalatable that it has shown me my own determination.”
A Ministry of Justice spokesperson said: “Supporting victims of sexual violence remains a priority for this government. The entire criminal justice system’s response to rape is being transformed through our Rape Action Plan and an extra £51m is being invested in specialist support services.”
A spokesperson for West Midlands police said that after being approached by Daisy they had made contact with her birth mother, who did not wish to pursue a prosecution at the time.
The spokesperson said: “The law does not recognise this person as a victim and there was not enough evidence for a prosecution. [She] was advised of this. The complaint legislation is very specific about who and when a complaint can be made and her complaint, having been informed by the Public Protection Unit of why the crime could not be progressed, met the criteria of being ‘vexatious, oppressive or otherwise an abuse of the complaints procedures’.”
The prosecution against Bennett proceeded when Daisy’s birth mother decided she wanted to testify. Carvel was convicted of raping her on 2 August.
Daisy said: “I am so proud of my birth mother for her courage and bravery; the same courage and bravery she displayed as a vulnerable child but tragically was let down in terms of protection and justice. I hope that her strength and dignity encourages other survivors to come forward.”
Disclaimer: This article was originally published by the Guardian.
The Guardian
July 29, 2021: The Queen’s lawyers secretly lobbied Scottish ministers to change a draft law to exempt her private land from a major initiative to cut carbon emissions, documents reveal.
The exemption means the Queen, one of the largest landowners in Scotland, is the only person in the country not required to facilitate the construction of pipelines to heat buildings using renewable energy.
Her lawyers secured the dispensation from Scotland’s government five months ago by exploiting an obscure parliamentary procedure known as Queen’s consent, which gives the monarch advance sight of legislation.
The arcane parliamentary mechanism has been borrowed from Westminster, where it has existed as a custom since the 1700s.
In a series of reports into Queen’s consent in recent months, the Guardian revealed how the Queen repeatedly used her privileged access to draft laws to lobby ministers to change UK legislation to benefit her private interests or reflect her opinions between the late 1960s and the 1980s.
The new documents, uncovered by Lily Humphreys, a researcher for the Scottish Liberal Democrats using freedom of information laws, disclose how the monarch used her special access to Scottish legislation to intervene in the parliamentary process as recently as February.
The documents also suggest Nicola Sturgeon’s government failed to disclose the monarch’s lobbying this year when a Scottish politician used a parliamentary debate to query why the Queen was securing an exemption from the green energy bill.
The move appears at odds with the royal family’s public commitment to tackling the climate crisis, with Prince William recently joining his father, Charles, in campaigning to cut emissions and protect the planet.
Sturgeon’s government heralded the bill as a key piece of legislation to combat the climate emergency. It said the law, known as the heat networks bill, would help cut emissions, reduce fuel poverty and create green jobs.
The legislation enabled the construction of pipelines to heat clusters of homes and businesses using renewable energy, rather than from separate fossil fuel boilers.
On 12 January, John Somers, Sturgeon’s principal private secretary, wrote to Sir Edward Young, the Queen’s most senior aide, asking for her consent to the heat networks bill. In his letter, Somers said it would allow companies and public authorities to compulsorily buy land from landowners.
On 3 February, officials working for Paul Wheelhouse, the then energy minister, recorded that the Queen’s lawyers raised concerns about the bill. They also recorded he had agreed to alter the bill, noting the “minister agreed to proposed amendment that would addressed [sic] concerns from Queen’s solicitors”. This had been done in relation to the Queen’s consent process.
On 17 February, a courtier told the Scottish government the Queen had given her consent to allow the bill to be passed.
Five days later, when MSPs debated the bill, Wheelhouse put forward an amendment that applied only to land privately owned by the Queen. It specifically prevents companies and public authorities from compelling the Queen to sell pieces of her land to enable the green energy pipelines to be built.
Buckingham Palace says Queen’s consent, a process requiring ministers to notify lawyers when a proposed bill might affect her public powers or private interests, is a “purely formal” part of the parliamentary process.
However, there are increasing examples where the Queen has taken advantage of her consent privileges to require changes before she formally consents to the law proceeding through parliament. That appears to have occurred on this occasion in Scotland, where the procedure – known as crown consent – operates in the same way.
During the debate over the parliamentary bill, Andy Wightman, then an independent MSP, objected to the amendment, arguing it was wrong to single out the Queen for preferential treatment.
Wheelhouse responded that the amendment was “required to ensure the smooth passage of the bill”. However, he did not disclose that the Queen’s lawyers had lobbied for the change. The amendment was passed with Wightman and a handful of other MSPs opposing it.
After being informed about the new documents, Wightman said he was “shocked to discover that the amendment was put in place in order to secure Queen’s consent. That should have been stated in the debate.
Disclaimer: This article was originally published by the Guardian.
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.
Right to Disclosure – Importance & Challenges in Criminal Justice System – By Manu Sharma
Personal liberty is the most cherished value of human life which thrives on the anvil of Articles 14 and 21 of the Constitution of India (“the Constitution”). Once a person is named an accused, he faces the spectre of deprivation of his personal liberty and criminal trial. This threat is balanced by Constitutional safeguards which mandate adherence to the rule of law by the investigating agencies as well as the Court. Thus, any procedure which seeks to impinge on personal liberty must also be fair and reasonable. The right to life and personal liberty enshrined under article 21 of the Constitution, expanded in scope post Maneka Gandhi[1], yields the right to a fair trial and fair investigation. Fairness demands disclosure of anything relevant that may be of benefit to an accused. Further, the all-pervading principles of natural justice envisage the right to a fair hearing, which entails the right to a full defence. The right to a fair defence stems from full disclosure. Therefore, the right of an accused to disclosure emanates from this Constitutional philosophy embellished by the principles of natural justice and is codified under the Code of Criminal Procedure, 1973 (“Code”).
Under English jurisprudence, the duty of disclosure is delineated in the Criminal Procedure and Investigations Act, 1996, which provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, except if such disclosure undermines public interest.[2] Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.[3] The duty of disclosure under common law contemplates disclosure of anything which might assist the defence[4], even if such material was not to be used as evidence[5]. Under Indian criminal jurisprudence, which has borrowed liberally from common law, the duty of disclosure is embodied in sections 170(2), 173, 207 and 208 of the Code, which entail the forwarding of material to the Court and supply of copies thereof to the accused, subject to statutory exceptions.
II. Challenges in Enforcement
The right to disclosure is a salient feature of criminal justice, but its provenance and significance appear to be lost on the Indian criminal justice system. The woes of investigative bias and prosecutorial misconduct threaten to render this right otiose. That is not to say that the right of an accused to disclosure is indefeasible, as certain exceptions are cast in the Code itself, chief among them being public interest immunity under section 173(6). However, it is the mischief of the concept of ‘relied upon’ emerging from section 173(5) of the Code, which is wreaking havoc on the right to disclosure and is the central focus of this article. The rampant misuse of the words “on which the prosecution proposes to rely’ appearing in section 173(5) of the Code, to suppress material favourable to the accused or unfavourable to the prosecution in the garb of ‘un-relied documents’ has clogged criminal courts with avoidable litigation at the very nascent stage of supply of copies of documents under section 207 of the Code. The erosion of the right of an accused to disclosure through such subterfuge is exacerbated by the limited and restrictive validation of this right by criminal Courts. The dominant issues highlighted in the article, which stifle the right to disclosure are; tainted investigation, unscrupulous withholding of material beneficial to the accused by the prosecution, narrow interpretation by Courts of section 207 of the Code, and denial of the right to an accused to bring material on record in the pre-charge stage.
A. Tainted Investigation
Fair investigation is concomitant to the preservation of the right to fair disclosure and fair trial. It envisages collection of all material, irrespective of its inculpatory or exculpatory nature. However, investigation is often vitiated by the tendencies of overzealous investigating officers who detract from the ultimate objective of unearthing truth, with the aim of establishing guilt. Such proclivities result in collecting only incriminating material during investigation or ignoring the material favourable to the accused. This leads to suppression of material and scuttles the right of the accused to disclosure at the very inception. A tainted investigation leads to miscarriage of justice. Fortunately, the Courts are not bereft of power to supervise investigation and ensure that the right of an accused to fair disclosure remains protected. The Magistrate is conferred with wide amplitude of powers under section 156(3) of the Code to monitor investigation, and inheres all such powers which are incidental or implied to ensure proper investigation. This power can be exercised suo moto by the Magistrate at all stages of a criminal proceeding prior to the commencement of trial, so that an innocent person is not wrongly arraigned or a prima facie guilty person is not left out.[6]
B. Suppression of Material
Indian courts commonly witness that the prosecution is partisan while conducting the trial and is invariably driven by the lust for concluding in conviction. Such predisposition impels the prosecution to take advantage by selectively picking up words from the Code and excluding material favouring the accused or negating the prosecution case, with the aid of the concept of ‘relied upon’ within section 173(5) of the Code. However, the power of the prosecution to withhold material is not unbridled as the Constitutional mandate and statutory rights given to an accused place an implied obligation on the prosecution to make fair disclosure.[7] If the prosecution withholds vital evidence from the Court, it is liable to adverse inference flowing from section 114 of the Indian Evidence Act, 1872 (“Evidence Act). The prosecutor is expected to be guided by the Bar Council of India Rules which prescribe that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishment of the innocence of the accused shall be scrupulously avoided. [8]
C. Scope of S. 207
The scope of disclosure under section 207 has been the subject of fierce challenge in Indian Courts on account of the prosecution selectively supplying documents under the garb of ‘relied upon’ documents, to the prejudice of the defence of an accused. The earlier judicial trend had been to limit the supply of documents under section 207 of the Code to only those documents which were proposed to be relied upon by the prosecution. This view acquiesced the exclusion of documents which were seized during investigation, but not filed before the Court along with the charge sheet, rendering the right to disclosure a farce. This restrictive sweep fails to reconcile with the objective of a fair trial viz. discovery of truth. The scheme of the code discloses that Courts have been vested with extensive powers inter alia under sections 91, 156(3) and 311 to elicit the truth. Towards the same end, Courts are also empowered under Section 165 of the Evidence Act. Thus, the principle of harmonious construction warrants a more purposive interpretation of section 207 of the code. The Hon’ble Supreme Court expounded on the scope of Section 207 of the Code in the case of Manu Sharma[9] and held that documents submitted to the Magistrate under section 173(5) would deem to include the documents which have to be sent to the magistrate during the course of investigation under section 170(2). A document which has been obtained bona fide and has a bearing on the case of the prosecution should be disclosed to the accused and furnished to him to enable him to prepare a fair defence, particularly when non production or disclosure would affect administration of justice or prejudice the defence of the accused. It is not for the prosecution or the court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop on reasonable basis.[10] Manu Sharma’s [supra] case has been relied upon in Sasikala [11] wherein it was held that the Court must concede a right to the accused to have access to the documents which were forwarded to the Court but not exhibited by the prosecution as they favoured the accused. These judgments seem more in consonance with the true spirit of fair disclosure and fair trial. However, despite such clear statements of law, courts are grappling with the judicial propensity of deviating from this expansive interpretation and regressing to the concept of relied upon. The same is evident from a recent pronouncement of the Delhi High Court where the ratios laid down in Manu Sharma & Sasikala [supra] were not followed by erroneously distinguishing from those cases.[12] Such “per incuriam” aberrations by High Court not only undermine the supremacy of the Apex Court, but also adversely impact the functioning of the district courts over which they exercise supervisory jurisdiction. Hopefully in future Judges shall be more circumspect and strictly follow the law declared by the Apex Court.
D. Pre-Charge Embargo
Another obstacle encountered in the enforcement of the right to disclosure is the earlier judicial approach to stave off production or consideration of any additional documents not filed alongwith the charge sheet at the pre-charge stage, as the right to file such material was available to the accused only upon the commencement of trial after framing of charge.[13] At the pre-charge stage, Court could not direct the prosecution to furnish copies of other documents[14] It was for the accused to do so during trial or at the time of entering his defence. However, the evolution of law has seen that at the stage of framing charge, Courts can rely upon the material which has been withheld by the prosecutor, even if such material is not part of the charge sheet, but is of such sterling quality demolishing the case of the prosecution.[15] Courts are not handicapped to consider relevant material at the stage of framing charge, which is not relied upon by the prosecution. It is no argument that the accused can ask for the documents withheld at the time of entering his defence.[16] The framing of charge is a serious matter in a criminal trial as it ordains an accused to face a long and arduous trial affecting his liberty. Therefore, the Court must have all relevant material before the stage of framing charge to ascertain if grave suspicion is made out or not. Full disclosure at the stage of section 207 of the code, which immediately precedes discharging or charging an accused, enables an accused to seek a discharge, if the documents, including those not relied upon by the prosecution, create an equally possible view in favour of the accused.[17] On the other hand, delaying the reception of documents postpones the vindication of the accused in an unworthy trial and causes injustice by subjecting him to the trauma of trial. There is no gainsaying that justice delayed is justice denied, therefore, such an approach ought not to receive judicial consent. A timely discharge also travels a long way in saving precious time of the judiciary, which is already overburdened by the burgeoning pendency of cases. Thus, delayed or piecemeal disclosure not only prejudices the defence of the accused, but also protracts the trial and occasions travesty of justice.
III. Duties of the stakeholders in criminal justice system
The foregoing analysis reveals that participation of the investigating agency, the prosecution and the Court is inextricably linked to the enforcement of the right to disclosure. The duties cast on these three stakeholders in the criminal justice system, are critical to the protection of this right. It is incumbent upon the investigating agencies to investigate cases fairly and to place on record all the material irrespective of its implication on the case of prosecution case. Investigation must be carried out with equal alacrity and fairness irrespective of status of accused or complainant.[18] An onerous duty is cast on the prosecution as an independent statutory officer, to conduct the trial with the objective of determination of truth and to ensure that material favourable to the defence is supplied to the accused. Ultimately, it is the overarching duty of the Court to ensure a fair trial towards the administration of justice for all parties. The principles of fair trial require the Court to strike a delicate balance between competing interests in a system of adversarial advocacy. Therefore, the court ought to exercise its power under section 156(3) of the Code to monitor investigation and ensure that all material, including that which enures to the benefit of the accused, is brought on record. Even at the stage of supply of copies of police report and documents under section 207 of the Code, it is the duty of the Court to give effect to the law laid down by the Hon’ble Supreme Court in Manu Sharma (supra) and Sasikala (supra), and ensure that all such material is supplied to the accused irrespective of whether it is “relied upon” by the prosecution or not.
IV. Alternate Remedy
The conundrum of supply of copies under section 207 of the code abounds criminal trials. Fairness is an evolving concept. There is no doubt that disclosure of all material which goes to establish the innocence of an accused is the sine qua non of a fair trial.[19] Effort is evidently underway to expand the concept in alignment with English jurisprudence. In the meanwhile, does the right of an accused to disclosure have another limb to stand on? Section 91 of the Code comes to the rescue of an accused, which confers wide discretionary powers on the Court, independent of section 173 of the Code, to summon the production of things or documents, relevant for the just adjudication of the case. In case the Court is of the opinion that the prosecution has withheld vital, relevant and admissible evidence from the Court, it can legitimately use its power under section 91 of the Code to discover the truth and to do complete justice to the accused.[20]
V. Conclusion
A society’s progress and advancement are judged on many parameters, an important one among them being the manner in which it administers criminal justice. Conversely, the ironic sacrilege of the core virtues of criminal jurisprudence in the temples of justice evinces social decadence. The Indian legislature of the twenty first century has given birth to several draconian statutes which place iron shackles on personal liberty, evoking widespread fear of police abuses and malicious prosecution. These statutes not only entail presumptions which reverse the burden of proof, but also include impediments to the grant of bail. Thus, a very heavy burden to dislodge the prosecution case is imposed on the accused, rendering the right to disclosure of paramount importance. It is the duty of the Court to keep vigil over this Constitutional and statutory right conferred on an accused by repudiating any procedure which prejudices his defence. Notable advancement has been made by the Apex Court in interpreting section 207 of the Code in conformity with the Constitutional mandate, including the right to disclosure. Strict adherence to the afore-noted principles will go a long way in ensuring real and substantial justice. Any departure will not only lead to judicial anarchy, but also further diminish the already dwindling faith of the public in the justice delivery system.
**
Advocate Manu Sharma has been practising at the bar for over sixteen years. He specialises in Criminal Defence. Some of the high profile cases he has represented are – the 2G scam case for former Union minister A Raja; the Religare/Fortis case for Malvinder Singh; Peter Mukerjee in the P Chidambaram/ INX Media case; Devas Multimedia in ISRO corruption act case; Om Prakash Chautala in PMLA case; Aditya Talwar in the aviation scam case; Dilip Ray, former Coal Minister in one of the coal scam cases; Suhaib Illyasi case.
**
Disclaimer: The views or opinions expressed are solely of the author.
[1] Maneka Gandhi and Another v. Union of India, (1978) 1 SCC 248
[2] S. 3 of the Criminal Procedure and Investigations Act, 1996
[3] R v. H and R v. C, 2004 (1) ALL ER 1269
[4] R v. Ward (Judith), (1993) 1 WLR 619 : (1993) 2 ALL ER 577 (CA)
[5] R v. Preston, (1994) 2 AC 130 : (1993) 3 WLR 891 : (1993) 4 ALL ER 638 (HL), R v. Stinchcome,
(1991), 68 C.C.C. (3d) 1 (S.C.C.)
[6] Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, 2019 SCC Online SC 1346
[7] Sidhartha Vashishth alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
[8] R. 16, part II, Ch. VI of the Bar Council of India Rules
[9] Manu Sharma, (2010) 6 SCC 1
[10] V.K. Sasikala v. State, (2012) 9 SCC 771 : AIR 2013 SC 613
[11] Sasikala, (2012) 9 SCC 771 : AIR 2013 SC 613
[12] Sala Gupta and Another v. Directorate of Enforcement, (2019) 262 DLT 661
[13] State of Orissa v. Debendra Nath Padhi¸(2005) 1 SCC 568
[14] Dharambir v. Central Bureau of Investigation, ILR (2008) 2 Del 842 : (2008) 148 DLT 289
[15] Nitya Dharmananda alias K. Lenin and Another v. Gopal Sheelum Reddy, (2018) 2 SCC 93
[16] Neelesh Jain v. State of Rajasthan, 2006 Cri LJ 2151
[17] Dilwar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394
[18] Karan Singh v. State of Haryana, (2013) 12 SCC 529
[19] Kanwar Jagat Singh v. Directorate of Enforcement & Anr, (2007) 142 DLT 49
[20] Neelesh, 2006 Cri LJ 2151
Disclaimer: The views or opinions expressed are solely of the author.
Validity & Existence of an Arbitration Clause in an Unstamped Agreement
By Kunal Kumar
January 8, 2024
In a recent ruling, a seven-judge bench of the Supreme Court of India in its judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, overruled the constitutional bench decision of the Supreme Court of India in N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. and has settled the issue concerning the validity and existence of an arbitration clause in an unstamped agreement. (‘N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III’)
Background to N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
One of the first instances concerning the issue of the validity of an unstamped agreement arose in the case of SMS Tea Estate Pvt. Ltd. v. Chandmari Tea Company Pvt. Ltd. In this case, the Hon’ble Apex Court held that if an instrument/document lacks proper stamping, the exercising Court must preclude itself from acting upon it, including the arbitration clause. It further emphasized that it is imperative for the Court to impound such documents/instruments and must accordingly adhere to the prescribed procedure outlined in the Indian Stamp Act 1899.
With the introduction of the 2015 Amendment, Section 11(6A) was inserted in the Arbitration & Conciliation Act 1996 (A&C Act) which stated whilst appointing an arbitrator under the A&C Act, the Court must confine itself to the examination of the existence of an arbitration agreement.
In the case of M/s Duro Felguera S.A. v. M/s Gangavaram Port Limited, the Supreme Court of India made a noteworthy observation, affirming that the legislative intent behind the 2015 Amendment to the A&C Act was necessitated to minimise the Court's involvement during the stage of appointing an arbitrator and that the purpose embodied in Section 11(6A) of A&C Act, deserves due acknowledgement & respect.
In the case of Garware Wall Ropes Ltd. v. Cosatal Marine Constructions & Engineering Ltd., a divisional bench of the Apex Court reaffirmed its previous decision held in SMS Tea Estates (supra) and concluded that the inclusion of an arbitration clause in a contract assumes significance, emphasizing that the agreement transforms into a contract only when it holds legal enforceability. The Apex Court observed that an agreement fails to attain the status of a contract and would not be legally enforceable unless it bears the requisite stamp as mandated under the Indian Stamp Act 1899. Accordingly, the Court concluded that Section 11(6A) read in conjunction with Section 7(2) of the A&C Act and Section 2(h) of the Indian Contract Act 1872, clarified that the existence of an arbitration clause within an agreement is contingent on its legal enforceability and that the 2015 Amendment of the A&C Act to Section 11(6A) had not altered the principles laid out in SMS Tea Estates (supra).
Brief Factual Matrix – N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
Indo Unique Flame Ltd. (‘Indo Unique’) was awarded a contract for a coal beneficiation/washing project with Karnataka Power Corporation Ltd. (‘KPCL’). In the course of the project, Indo Unique entered into a subcontract in the form of a Work Order with N.N. Global Mercantile Pvt. Ltd. (‘N.N. Global’) for coal transportation, coal handling and loading. Subsequently, certain disputes arose with KPCL, leading to KPCL invoking Bank Guarantees of Indo Unique under the main contract, after which Indo Unique invoked the Bank Guarantee of N. N. Global as supplied under the Work Order.
Top of FormS
Subsequently, N.N. Global initiated legal proceedings against the cashing of the Bank Guarantee in a Commercial Court. In response thereto, Indo Unique moved an application under Section 8 of the A&C Act, requesting that the Parties to the dispute be referred for arbitration. The Commercial Court dismissed the Section 8 application, citing the unstamped status of the Work Order as one of the grounds. Dissatisfied with the Commercial Court's decision on 18 January 2018, Indo Unique filed a Writ Petition before the High Court of Bombay seeking that the Order passed by the Commercial Court be quashed or set aside. The Hon’ble Bombay High Court on 30 September 2020 allowed the Writ Petition filed by Indo Unique, aggrieved by which, N.N. Global filed a Special Leave Petition before the Supreme Court of India.
N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. – I
The issue in the matter of M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unqiue Flame Ltd. & Ors. came up before a three-bench of the Supreme Court of India i.e. in a situation when an underlying contract is not stamped or is insufficiently stamped, as required under the Indian Stamp Act 1899, would that also render the arbitration clause as non-existent and/or unenforceable (‘N.N. Global Mercantile Pvt. Ltd. v. Indo Flame Ltd. – I’).
The Hon’ble Supreme Court of India whilst emphasizing the 'Doctrine of Separability' of an arbitration agreement held that the non-payment of stamp duty on the commercial contract would not invalidate, vitiate, or render the arbitration clause as unenforceable, because the arbitration agreement is considered an independent contract from the main contract, and the existence and/or validity of an arbitration clause is not conditional on the stamping of a contract. The Hon’ble Supreme Court further held that deficiency in stamp duty of a contract is a curable defect and that the deficiency in stamp duty on the work order, would not affect the validity and/or enforceability of the arbitration clause, thus applying the Doctrine of Separability. The arbitration agreement remains valid and enforceable even if the main contract, within which it is embedded, is not admissible in evidence owing to lack of stamping.
The Hon’ble Apex Court, however, considered it appropriate to refer the issue i.e. whether unstamped instrument/document, would also render an arbitration clause as non-existent, unenforceable, to a constitutional bench of five-bench of the Supreme Court.
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II
On 25 April 2023, a five-judge bench of the Hon’ble Supreme Court of India in the matter of N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. held that (1) An unstamped instrument containing an arbitration agreement cannot be said to be a contract which is enforceable in law within the meaning of Section 2(h) of the Indian Contract Act 1872 and would be void under Section 2(g) of the Indian Contract Act 1872, (2) an unstamped instrument which is not a contract nor enforceable cannot be acted upon unless it is duly stamped, and would not otherwise exist in the eyes of the law, (3) the certified copy of the arbitration agreement produced before a Court, must clearly indicate the stamp duty paid on the instrument, (4) the Court exercising its power in appointing an arbitration under Section 11 of the A&C Act, is required to act in terms of Section 33 and Section 35 of the Indian Stamp Act 1899 (N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II).
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
A seven-judge bench of the Supreme Court of India on 13 December 2023 in its recent judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, (1) Agreements lacking proper stamping or inadequately stamped are deemed inadmissible as evidence under Section 35 of the Stamp Act. However, such agreements are not automatically rendered void or unenforceable ab initio; (2) non-stamping or insufficient stamping of a contract is a curable defect, (2) the issue of stamping is not subject to determination under Sections 8 or 11 of the A&C Act by a Court. The concerned Court is only required to assess the prima facie existence of the arbitration agreement, separate from concerns related to stamping, and (3) any objections pertaining to the stamping of the agreement would fall within the jurisdiction of the arbitral tribunal. Accordingly, the decision in N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II and SMS Tea (supra) was overruled, by the seven-judge bench of the Supreme Court of India.
Kunal is a qualified lawyer with more than nine years of experience and has completed his LL.M. in Dispute Resolution (specialisation in International Commercial Arbitration) from Straus Institute for Dispute Resolution, Pepperdine University, California.
Kunal currently has his own independent practice and specializes in commercial/construction arbitration as well as civil litigation. He has handled several matters relating to Civil Law and arbitrations (both domestic and international) and has appeared before the Supreme Court of India, High Court of Delhi, District Courts of Delhi and various other tribunals.
No Safe Harbour For Google On Trademark Infringement
By Mayank Grover & Pratibha Vyas
October 9, 2023
Innovation, patience, dedication and uniqueness culminate in establishing a distinct identity. A trademark aids in identifying the source and quality, shaping perceptions about the identity's essence. When values accompany a product or service's trademark, safeguarding against misuse and infringement becomes crucial. A recent pronouncement of a Division Bench of the Delhi High Court dated August 10, 2023 in Google LLC v. DRS Logistics (P) Ltd. & Ors. and Google India Private Limited v. DRS Logistics (P) Ltd. & Ors. directed that Google’s use of trademarks as keywords for its Google Ads Programme does amount to ‘use’ in advertising under the Trademarks Act and the benefit of safe harbour would not be available to Google if such keywords infringe on the concerned trademark.
Factual Background
Google LLC manages and operates the Google Search Engine and Ads Programme, while, Google India Private Limited is a subsidiary of Google that has been appointed as a non-exclusive reseller of the Ads Programme in India. The Respondents, DRS Logistics and Agarwal Packers and Movers Pvt. Ltd. are leading packaging, moving and logistics service providers in India.
On 22.12.2011, DRS filed a suit against Google and Just Dial Ltd. under provisions of the Trademarks Act, 1999 (‘TM Act’) inter alia seeking a permanent injunction against Google from permitting third parties from infringing, passing off etc. the relevant trademarks of DRS. The core of the dispute revolved around Google’s Ads Programme. DRS claimed that its trade name 'AGARWAL PACKERS AND MOVERS' is widely recognized and a 'well-known' trademark. Use of DRS’s trademark as a keyword diverts internet traffic from its website to that of its competitors and they were entitled to seek restraint against Google for permitting third parties who are not authorized to use the said trademark. DRS further argued that Google benefits from these trademark infringements. This practice involved charging a higher amount for displaying these ads, constituting an infringement of their trademarks. Whereas, Google contended that the use of the keyword in the Ads Programme does not amount to ‘use’ under the TM Act notwithstanding that the keyword is/or similar to a trademark. Thus, the use of a term as a keyword cannot be construed as an infringement of a trademark under the TM Act, and being an intermediary, it claimed a safe harbour under Section 79 of the Information Technology Act, 2000. (‘IT Act’).
In essence, the dispute between the parties was rooted in DRS’s grievance concerning the Ads Programme. The Learned Single Judge vide judgment dated 30.10.2021interpreted relevant provisions of the TM Act and drew on multiple legal precedents to arrive at the decision that DRS can seek protection of its trademarks which were registered under Section 28 of the TM Act and issued directions to investigate complaints alleging the use of trademark and/or to ascertain whether a sponsored result has an effect of infringing a trademark or passing off.
Being aggrieved, Google LLC and Google Pvt. Ltd. filed appeals before the Division Bench. Google LLC argued that the Single Judge’s findings were erroneous and the directions issued were liable to be set aside. Google India claimed that it doesn’t control and operate the Search Engine and the Ads Programme making it unable to comply with the directions passed in the impugned judgment.
Analysis & Decision of Court
The Division Bench found Single Judge’s rationale for assessing trademark infringement through keywords and meta-tags valid. Meta-tags are a list of words/code in a website, not readily visible to the naked eye. It serves as a tool for indexing the website by a search engine. If a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves similar purpose. The Division Bench was unable to accept that using a trademark as a keyword, even if not visible, would not be considered trademark use under the TM Act.
Google placed heavy reliance on the decisions rendered by Courts across jurisdictions of United Kingdom, United States of America, European Union, Australia, New Zealand, Russia, South Africa, Canada, Spain, Italy, Japan and China; in the cases of Google France SARL and Google Inc. v. Louis Vitton SA & Ors.[1], Interflora Inc. v. Marks & Spencer Plc.[2], and L’Oreal SA v. eBay International AG[3] in support of the contention that the use of trade marks is by the advertiser and not by Google. However, the Division Bench rejected Google’s passive role; highlighting its active involvement in recommending and promoting trademark keywords for higher clicks in its Ads Programme. Division Bench referred to a few judicial decisions rendered in the United States of America that captured the essence of the controversy for perspective, concluding that Google actively promotes and encourages trademarks associated with major goods and services, rather than having a passive role.
It was held that the contention that the use of trademarks as keywords, per se constitutes an infringement of the trademark is unmerited; the assumption that an internet user is merely searching the address of the proprietor of the trademark when he feeds in a search query that may contain a trademark, is erroneous.
The Doctrine of 'Initial Interest Confusion' addresses trademark infringement based on pre-purchase confusion. The doctrine is applied when meta-tags, keywords, or domain names cause initial confusion similar to a registered trademark. If users are misled to access unrelated websites, trademark use in internet advertising may be actionable and reliance was placed on US precedents. Referring to Section 29 of the TM Act, it was directed that Section 29 does not specify the duration for which the confusion lasts but, even if the confusion is for a short duration and an internet user is able to recover from the same, the trade mark would be infringed and would offend Section 29(2) of the TM Act.
It was held that the Ads Programme is a platform for displaying advertisements. Google, being an architect and operator of its own programme makes it an active participant in the use of trademarks and determining the advertisements displayed on search pages. Their use of proprietary software makes them utilize trademarks and control the distribution of information related to potentially infringing links, ultimately leading to revenue maximization. Hence, a substantial link exists between Google LLC and Google India, rendering it impossible for Google India to deny its role in operating the Ads Programme. It was further held that Google sells trademarks as keywords to advertisers and encourages users to use trademarks as keywords for ads. It is contradictory for Google to encourage trademark use while claiming data belongs to third parties for exemption. After 2004, Google changed policies to boost revenue and subsequently, introduced a tool that searches effective terms, including trademarks. Google's active involvement in its advertising business and online nature does not necessarily qualify it for benefits under Section 79 of the IT Act. The Division Bench agreed with the view of the Single Judge that Google would not be eligible for protection of safe harbour under Section 79(1) of the IT Act, if its alleged activities infringe trademarks.
Conclusion
This is a seminal decision governing (and rather, restricting) the operations of intermediaries and redefining the jurisprudence of safe harbour under the IT Act. The decision is well-reasoned and establishes a significant precedent for safeguarding trademarks by uniquely holding Google accountable under its Ads Programme. The same will prevent usage of tradenames as a third-party trademark in keyword search or metatags by advertisers on Google’s search engine. While keywords and meta-tags have different levels of visibility, their purpose is similar i.e. advertising and attracting internet traffic. The use of trademarks as meta-tags by a person who is neither a proprietor of the trademark nor permitted to use the same leads to confusion amongst public at large due to the automated processes of search engines and consequently, constitutes trademark infringement.
About the Authors: Mayank Grover is a Partner and Pratibha Vyas is an Associate at Seraphic Advisors, Advocates & Solicitors
[1] C-236/08 to C-238/08 (2010) [2011] All ER (EC) 41
[2] [2014] EWCA Civ 1403
[3] 2C- 324/09 (2010)
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