Los Angeles, September 14: A US federal appeals court ruled on Monday that the Trump administration acted within its authority in terminating legal protections that have allowed hundreds of thousands of immigrants to live and work legally in the United States, sometimes for decades, after fleeing conflict or natural disasters in their home countries.
The 2-1 ruling by the United States Court of Appeals for the Ninth Circuit effectively strips legal immigration status from some 400,000 people, rendering them deportable if they do not voluntarily leave the country, The New York Times reported.
The decision affects the overwhelming majority of beneficiaries of a program offering what is known as “temporary protected status,” which has permitted them to remain in the United States after being uprooted from their unstable homelands.
The Trump administration has argued that the emergency conditions that existed when people were invited to come to the United States — earthquakes, hurricanes, civil war — had occurred long ago. The program, it said, had inadvertently conferred permanent immigration status for people from places like El Salvador, Haiti and Sudan, most of whom it said no longer needed safe haven.
The long-awaited decision does not immediately end the protections. The Trump administration has agreed to maintain them until at least March 5, 2021, for people from five of the affected countries and until November 2021 for people from El Salvador.
If President Trump is not re-elected, a new administration could choose to maintain the program.
The plaintiffs are almost certain to request that the decision be reconsidered by an 11-judge panel hearing the case en banc. They could also ask the Supreme Court to take up the matter.
“It’s a really devastating day for hundreds of thousands of people who have lived and worked in the country lawfully for decades,” said Tom Jawetz, vice president for immigration policy at the Center for American Progress.
“But it’s not the end of the line for them,” Mr. Jawetz said.“There will be additional litigation, and ultimately the fate of these people may be decided by the outcome of the November election.”
Proponents of limits on immigration hailed the decision.
“The Ninth Circuit affirmed two clear aspects of T.P.S.,” said Dan Stein, president of the Federation for American Immigration Reform, said in a statement. “The first is that the T in T.P.S. stands for temporary and that it is not intended, nor should it be, a backdoor to permanent residency.”
He said the decision also made it clear that the government had discretion to determine when it was safe for immigrants given temporary protections to return home. For countries such as El Salvador, Haiti, Nicaragua and Sudan, he said, “the crises that triggered the T.P.S. designation have long since passed.”
The court’s ruling could force many people who have been in the country for years, if not decades, to contemplate leaving their jobs, homes and communities to return to impoverished countries that are ill-prepared to absorb them. It also could result in the separation of families because beneficiaries have about 200,000 U.S.-born children.
Ten countries are currently part of the temporary protected status program, signed into law by President George H.W. Bush in 1990. Only four were officially included in Monday’s decision — El Salvador, Haiti, Nicaragua and Sudan — but nationals from two other countries, Honduras and Nepal, sued separately and a legal agreement calls for those countries to be covered by Monday’s decision.
Nationals of El Salvador, the first to be offered temporary protected status, as a result of the country’s civil war in the 1980s, represent about half of all recipients. Haitians received protection after the 2010 earthquake. Syria and Yemen were designated after civil wars erupted there.
Under the program, the secretary of homeland security decides when a country merits the designation and the status can be extended indefinitely. Bosnia and Herzegovina lost its temporary protected status after the end of its 1990s-era civil war, as did Guinea, Sierra Leone and Liberia after the Ebola crisis.
Determined to reduce immigration, President Trump in 2017 began trying to scrap protection under the program for several other countries, meeting with lawsuits that temporarily blocked any cancellations.
The government extended protections under the program for beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan, who account for more than 90 percent of the total, as the courts considered the legal challenges.
The appeal that was before the Ninth Circuit argued that the government’s decision to eliminate the program was motivated by Mr. Trump’s animosity toward immigrants from nonwhite, non-European countries. Lawyers had cited his statements that were disparaging of Mexicans, Haitians and others from developing countries.
The plaintiffs also argued that maintaining the program was in the national interest because more than 100,000 holders of temporary protected status work in industries deemed “essential” during the coronavirus pandemic, including more than 11,000 health care workers and more than 76,000 food-related workers, according to the Center for American Progress.
The U.S. Chamber of Commerce said that revoking the program would adversely affect several key industries where recipients make up a significant amount of the work force. Roughly one-fifth of construction workers in Washington, D.C., are immigrants with temporary protected status, most of them Salvadorans.
The judges said the argument that the Trump administration was motivated by animus toward certain races or countries was unlikely to succeed. “Plaintiffs fail in their burden of showing a likelihood of success, or even serious questions, on the merits of their claim that racial animus toward ‘non-white, non-European’ populations was a motivating factor in the TPS terminations,” they said in their opinion.
The panel noted that the administration extended temporary protected status for immigrants from some countries, including Somalia, South Sudan, Syria and Yemen, whose populations are also “non-European” and “non-white.” Beneficiaries from those countries collectively represent less than 8,000 people.
The majority opinion was written by Judge Consuelo M. Callahan, an appointee of President George W. Bush, with Judge Ryan D. Nelson, appointed by President Trump, concurring. Judge Morgan B. Christen, named to the court by Barack Obama, dissented.
Ahilan Arulanantham, senior counsel for the American Civil Liberties Union of Southern California, who led the legal challenge, said the plaintiffs would keep pressing their argument through the courts. “The president’s vile statements about T.P.S. holders made perfectly clear that his administration acted out of racial animus,” he said. “The Constitution does not permit policy to be driven by racism.”
September 13: The UK government is planning to “opt out” of parts of the European convention on human rights in order to speed up deportations of asylum seekers and protect British troops serving overseas from legal action.
The proposals are being coordinated by Downing Street aides. They are intended to rule out claims in areas where judges have supposedly “overreached” their powers, The Guardian reported.
The restrictions, according to the Sunday Telegraph, could prevent migrants and asylum seekers from using the legislation to avoid being removed from the UK and to shield British soldiers against claims following overseas operations.
Downing Street’s determination to restrict human rights powers has become entangled with the EU withdrawal negotiations. The government is resisting giving Brussels a formal undertaking to adhere to the convention.
A government spokesperson said: “The UK is committed to the European convention on human rights and to protecting human rights and championing them at home and abroad, but we believe that this does not require an additional binding international legal commitment.
“How the UK gives effect to its longstanding strong human rights protections is a matter for the UK as an autonomous country. In the same way, it’s a matter for the EU and its member states to give effect to their own human rights protections according to their own legal orders.”
The Human Rights Act, passed by the Labour government in 1998, incorporates convention rights into British law. It has long been the target of rightwing Tories.
The party’s election manifesto last year pledged to “update” the act and “ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”.
Previous attempts to curb the Human Rights Act have failed to materialise. In the context of the row over the Boris Johnson’s threat to override the EU withdrawal agreement, however, it appears to signal a broader determination to back out of the UK’s international legal obligations.
The justice secretary, Robert Buckland QC, said on Times Radio: “Now the [Human Rights] Act is 20 years of age, I think it needs to be looked at carefully. We’re working on ways on which we can examine that and do it in a mature and sensible way.
“But … the idea that we’re going to leave the convention is for the birds. You know, it was British Conservative lawyers who wrote the damn thing back in 1950. We wrote it because we were leaders of Europe when it came to freedom, we wanted to underline the importance of fundamental rights and freedoms back then and that frankly for me is hugely important.
“It is a badge of honour for this country that we did that. Yes, there have been moments when we have had disagreements and clashes about aspects of its interpretation, but you know there is a wide margin of appreciation that allows member states, Britain, France, other countries, to make their own laws which give us a huge amount of freedom.”
The convention is overseen by the Council of Europe, which has 47 member states including Russia and Turkey. Belarus is the only European state that is not a signatory.
Reports of the latest assault on the Human Rights Act triggered opposition from Labour and prominent lawyers.
David Lammy MP, the shadow justice secretary, said: “Labour is proud of our country’s role in developing human rights at home and abroad. Instead of giving unattributed briefings designed to distract the government should focus on getting a Brexit deal and defeating the virus.
“Any attempt to abandon human rights would make life in Britain less secure and hold our country back on the world stage.”
Mark Elliott, a professor of public law at Cambridge University, tweeted: “First they came for the European Union. Then they came for the European convention on human rights. This was always a question on when, not if. The logical endpoint of this initiative is withdrawal from the ECHR.”
Philippe Sands, a professor of international law at University College London, added: “And why not the UN too? Tear up all the UK created in 1945.”
Lord Falconer, the shadow attorney general, tweeted: “A future where UK breaks its international law obligations, and opts out of human rights protections is a very bad future.”
The Liberal Democrat justice spokesperson, Wera Hobhouse, said: “This Conservative government’s attacks on the rule of law must stop. The Human Rights Act does not stop us deporting serious criminals. Threatening to weaken people’s ability to challenge the government just because the courts sometimes rule against you is the act of dictators and despots, not democrats.
“With these plans, Boris Johnson and Dominic Cummings are trying to enable the government to run roughshod over people’s rights and allow ministers to break the law with impunity.”
September 12: A US federal appeals court ruled on Friday that the state of Florida can require felons to pay all fines, restitution and legal fees they face before they can regain their right to vote, reversing a lower court ruling that held the measure unconstitutional, Reuters reported.
The ruling, by the U.S. 11th Circuit Court of Appeals, could influence the country’s general election outcome in November.
Florida is considered a must-win in President Donald’s Trump’s bid for re-election and disenfranchised felons account for a significant voting bloc in a state with a history of tight elections.
The dispute, which could ultimately head to U.S. Supreme Court, centers on whether the law is a way around a voter-approved 2018 measure that aimed to end the state’s lifetime prohibition on voting by ex-felons.
The Republican-controlled Florida legislature passed the law the following year, requiring all former felons to pay off outstanding court debts and legal fees to be eligible to vote.
Voting and civil rights groups sued the state’s Republican governor, Ron DeSantis, and state election officials over that requirement.
U.S. District Court Judge Robert Hinkle in May struck down most of the law as unconstitutional, describing it as a “pay to vote” scheme.
The appeals court, dominated by judges appointed by Trump, delayed the decision while it considered on appeal.
On Friday, a majority of the 11-judge panel found the defendants in the case failed to prove the measure violated the constitution, noting the country has a long history of placing restrictions on voting.
The decision was met with frustration by voting rights groups.
“Florida’s voters spoke loud and clear when nearly two-thirds of them supported rights restoration at the ballot box in 2018,” said Paul Smith, vice president at Campaign Legal Center. “Nobody should ever be denied their constitutional rights because they can’t afford to pay fines and fees.”
Brussels, September 11: A woman who successfully fought a seven-year legal battle to prove she was the daughter of the former king of Belgium, Albert II, will learn next month whether, against the wishes of her father, she will be able to use the titles Her Royal Highness and the Princess of Belgium.
Delphine Boël, 52, an artist and sculptor, whose mother had an extra-marital affair with Albert in the 1960s and 70s, argued in the Brussels court of appeal that she should also be able to use her biological father’s surname of Saxe-Coburg. The court will give its judgment on October 29, The Guardian reported.
King Albert, 86, who abdicated from the Belgian throne in 2013, was forced to acknowledge he was Boël’s biological father after a court-ordered DNA test last January.
Boël, who had spent time with Albert as a child, nicknaming him Papillon (butterfly), had sought acknowledgement more than 20 years ago but her requests had been rejected. She launched a legal battle to prove paternity in June 2013, after the elder of her two children, Joséphine, was admitted to hospital with pneumonia, and she felt the absence of her biological father.
Boël’s claim received a vital boost last autumn when the court of appeal ruled that Jacques Boël, with whom she grew up, was not her biological father and instructed an expert to carry out a test to compare her DNA with Albert’s.
The king agreed to provide a saliva sample – which proved his paternity – after the courts threatened to fine him €5,000 (£4,370) for every day he refused.
Marc Uyttendaele, Boël’s lawyer, said she simply wanted to be treated the same as Albert’s other children. “Those titles are things that belong to her, just as they belong to the other children of King Albert. My client never had any other intention than to be treated in exactly the same way as the other children of the king, her brothers and sister,” he said.
Alain Berenboom, who is acting for the former king, said the issue of royal titles should be in the hands of the state, rather than the courts. “As far as the title is concerned, it is not a prerogative of the court but a prerogative of the executive power, in our opinion”, he said.
On the day Albert stepped down from the throne seven years ago, citing ill-health, Boël’s mother, Baroness Sybille de Selys Longchamps, gave a TV interview where she spoke publicly for the first time about her affair with the king.
“I thought I could not have children because I had had an infection,” she said of the relationship, which is said to have lasted from 1966 to 1984. “We had not taken any precautions.”
She continued: “It was a beautiful period. Delphine was a love child. Albert was not the father figure but he was very sweet to her.”
Washington, September 10: A federal court on Thursday rejected President Trump’s order to exclude unauthorized immigrants from population counts that will be used next year to reallocate seats in the House of Representatives, ruling that it was so obviously illegal that a lawsuit challenging the order need not go to a trial.
The court, a three-judge panel in Federal District Court in Manhattan, said Trump’s proposal exceeded his authority under federal laws governing the census and reapportionment, New York Times reported. The specially convened panel said there was no need to consider a second claim in the lawsuit that the president’s order violated the Constitution’s requirement to base apportionment of the House on “the whole number of persons in each state.”
“The merits of the parties’ dispute are not particularly close or complicated,” the judges wrote in granting summary judgment to the plaintiffs, a view that was broadly shared by legal scholars. Two of the judges, Richard C. Wesley and Peter W. Hall, were named to the bench by President George W. Bush. The third, Jesse M. Furman, was nominated by President Barack Obama.
The case involved lawsuits brought by two sets of plaintiffs, one a group of state and local governments and the United States Conference of Mayors, and the second a coalition of advocacy groups and other nongovernmental organizations. The groups argued that Mr. Trump’s order would cause some of them to lose representation in the House and would damage all of them by leading to a less accurate census.
Since the first census was taken in 1790, the number of seats each state holds in the House of Representatives has been based on counts of everyone living in the United States regardless of citizenship or legal status, except for slaves and “Indians not taxed” during the nation’s early years. Former slaves gained citizenship in 1866; all Native Americans did in 1924, although they were counted in regular censuses beginning in 1900.
Trump tried to scrap that process in July, telling the Commerce Department in a memorandum that the Census Bureau should produce two population counts — one the same as those taken every decade, and the other an estimate of the number of unauthorized immigrants living in each state.
Subtracting the immigrant population from census totals would have excluded millions of people from the population counts used for reapportionment, reducing the number of House seats allotted to states with large immigrant populations like California and Texas. Those seats would have been redistributed to states with few unauthorized immigrants — in particular Alabama, which is projected to lose a House seat next year.
Excluding noncitizens from reapportionment totals has long been a cause among many Republicans, who traditionally have been seen as the political winners under such a change. Some recent estimates have suggested that Republican gains would be small.
Trump had cast his order as a blow to “a broader left-wing effort to erode the rights of American citizens.” Given the tiny chance that a court would find his order legal, some analysts concluded that he was making more of an election-year statement to his supporters than a serious effort to upend 230 years of political history.
Under federal law, the Census Bureau forwards preliminary population totals for each state to the secretary of commerce, who must deliver them to the president before the end of each census year. The president then forwards the totals to Congress for use in reapportionment.
The court said the president’s order excluding unauthorized immigrants violated the law “in two clear respects.” It said federal law required the production of a single set of state population totals, making two separate counts illegal. Beyond that, the judges wrote, Trump’s memorandum “violates the statute governing reapportionment because, so long as they reside in the United States, illegal aliens qualify as ‘persons’ in a ‘state’ as Congress used those words.”
It was not immediately clear how — or whether — the ruling would affect a second legal battle loosely tied to Trump’s order: a fight over the administration’s command last month to shave four weeks off the time reserved for the population count.
The White House had earlier agreed to delay the delivery of census totals to the president, legally required by Dec. 31, to April 2021 because of delays caused by the coronavirus pandemic. But the administration later reversed itself, ordering the count cut short so the original deadline could be met.
That move was widely seen as an attempt to ensure that Trump would still be able to control the census totals and noncitizen estimates sent to Congress for reapportionment, even if he lost his re-election bid.
September 9: Apple Inc on Tuesday filed counter claims against ‘Fortnite’ creator Epic Games asking for lost App Store fees and other damages, and seeking an order to stop the game maker from operating its own in-app payment system.
Apple and Epic have been in a legal battle since August, when the maker of the popular game launched its own in-app payment system to circumvent what it called Apple’s monopolistic practices, Reuters reported. Apple’s App Store requires developers to use Apple’s payment system and pay a 30% commission.
Apple blocked Epic’s ability to distribute updates or new apps through the App Store, and Epic sued Apple alleging that its App Store practices violate antitrust laws. The court allowed Apple to block Epic from distributing new titles as the case plays out, but the existing version of “Fortnite” still works, as does Epic’s payment system.
Apple had said it would allow “Fortnite” back into the store if Epic removed the direct payment feature to comply with its developer agreement. But Epic has refused, saying complying with Apple’s request would be “to collude with Apple to maintain their monopoly over in-app payments on iOS.”
Apple’s filing on Tuesday asks for monetary damages for Epic’s payment system, seeking “restitution and disgorgement of all earnings, profits, compensation, benefits, and other ill-gotten gains obtained by Epic as a result of its conduct.”
Apple did not specify how much money it was seeking over the payment feature. The company also asked for damages for harm to its reputation from frustrated “Fortnite” players and a public relations campaign Epic launched against Apple, which included a parody of Apple’s “1984” television commercial and a playable apple-headed character called “Tart Tycoon” that bears some resemblance to Apple Chief Executive Tim Cook.
Apple also sought a court order that would force Epic to disable its own payment system in “Fortnite” on Apple devices.
September 9: Poland is preparing to throw out the last independent judges from its Supreme Court, a Polish judges’ association fears.
Bartłomiej Przymusiński, an activist judge and a spokesman for the lustitia association, voiced the concern on Tuesday, based on recent government statements and a newspaper report, euobserver reported.
He noted that Jarosław Kaczyński, the chairman of the ruling Law and Justice party, made clear his vision for political control of the Polish judiciary in an interview at the weekend.
Remarking on one recent court verdict that he did not like, concerning a Polish soccer chief, Kaczyński said: “There is indeed in Poland a problem with rule of law, but the main sources of this state of affairs are court judgments contra legem [against the law]”.
“It is our [the government’s] duty to ensure that these judgments made in conflict with the law are swiftly revoked and the judges who issued them held accountable on disciplinary charges and, consequently, removed from the profession,” Kaczyński added in his interview with right-wing Polish news agency niezalezna.pl.
“Kaczyński wants to make the Supreme Court into a Constitutional Tribunal duplicate, so that it’s full of their own [PiS-loyalist] judges, who do exactly what they want, with no unexpected verdicts,” Przymusiński told EUobserver.
If Poland’s Constitutional Tribunal has been brought to heel, the Supreme Court still contained about 50 or so independent judges out of 97 in total, who “posed a problem” for PiS, Przymusiński noted.
Kaczyński already wanted to get rid of them using forced retirement, but the EU court in Luxembourg blocked this last year, so now he needed a “new mechanism”, Przymusiński said.
And a leading Polish daily, Rzeczpospolita, on Monday, reported that this was coming in the form of a restructuring of the Supreme Court chambers, so that just 20 to 30 judges, most likely PiS-loyal ones, would be kept on.
The Polish government has declined to confirm the report. But Poland’s deputy justice minister, Anna Dalkowska, told Rzeczpospolita: “To heal the situation in the judiciary, it is necessary to limit the number of official positions, reorganise the courts, and limit their jurisdiction”.
For its part, the European Commission has launched sanctions procedures and court cases in the past three years try to stop the Polish reforms. But even as EU institutions multiplied statements and verdicts, Kaczyński was creating new facts on the ground, Przymusiński said.
“This has worked very well for him [Kaczyński] so far, so there’s no reason for him to stop, and once the [independent] Supreme Court judges are gone it will be hard to get them back, no matter what the EU says,” he told EUobserver.
The EU court will, in late October, also hold a hearing to try to answer a Polish Supreme Court question – on whether politically-appointed judges can be considered judges and legally exercise their functions.
But if Kaczyński gets his way on the purge, this might be the last annoying question of its type coming from Warsaw to Luxembourg, Przymusiński noted.
“This case shows that the Supreme Court is still stuck in his [Kaczyński’s] throat, but in the future, one can hardly expect the PiS-appointed judges left around to ask this type of thing,” he said.
Geneva, September 9: Two-time Olympic champion Caster Semenya lost her long legal battle Tuesday against track and field’s rules that limit female runners’ naturally high testosterone levels.
Switzerland’s supreme court said its judges dismissed Semenya’s appeal against a Court of Arbitration for Sport ruling last year that upheld the rules drafted by track’s governing body affecting female runners with differences of sex development (DSD), The Associated Press reported.
The ruling means Semenya cannot defend her Olympic 800-meter title at the Tokyo Games next year — or compete at any top meets in distances from 400 meters to the mile — unless she agrees to lower her testosterone level through medication or surgery.
The 29-year-old South African repeatedly said she will not do that and reiterated her stance in a statement through her lawyers Tuesday.
“I am very disappointed by this ruling, but refuse to let World Athletics drug me or stop me from being who I am,” Semenya said. “Excluding female athletes or endangering our health solely because of our natural abilities puts World Athletics on the wrong side of history.”
The Swiss Federal Tribunal said Semenya’s appeal “essentially alleges a violation of the prohibition of discrimination.”
The panel of five federal judges said it was limited to examining “whether the CAS decision violates fundamental and widely recognized principles of public order. That is not the case.”
Semenya’s “guarantee of human dignity” was also not compromised by the CAS ruling, the judges decided.
“Implicated female athletes are free to refuse treatment to lower testosterone levels. The decision also does not aim to question in any way the female sex of implicated female athletes,” the federal court said.
Reacting to the verdict, Semenya said: “I will continue to fight for the human rights of female athletes, both on the track and off the track, until we can all run free the way we were born. I know what is right and will do all I can to protect basic human rights, for young girls everywhere.”
Although exact details of Semenya’s condition have never been released since she won the first of her three world titles in 2009 as a teenager, she has testosterone levels that are higher than the typical female range. The Swiss court statement Tuesday referred to female runners with “the genetic variant ‘46 XY DSD’.” World Athletics argued that gave her and other female athletes like her with DSD conditions and high natural testosterone an unfair advantage.
The rules Semenya appealed against require her to lower her testosterone to a level specified by the international track body for at least six months before competing. Athletes have three options to do that: Taking birth control pills, having testosterone-blocking injections, or undergoing surgery.
The federal judgment came more than a year after the two-time Olympic 800-meter champion lost a previous ruling from the same court.
That July 2019 verdict overturned a temporary ruling which had allowed Semenya briefly to compete in the 800 meters at international events without taking testosterone-suppressing drugs.
It’s unclear what Semenya will choose to do next. She could compete in the 100 or 200 meters or at distances longer than the mile but she has never had the success in those events that she has had over two laps.
Greg Nott, Semenya’s long-time lawyer in South Africa said her international team of lawyers said they were “considering the judgment and the options to challenge the findings in European and domestics courts.”
Any appeal to the European Court of Human Rights would likely not receive a judgment until after the Tokyo Olympics opening next July.
September 8: Julian Assange, the Wikileaks founder who is fighting to avoid extradition to the United States from Britain, was warned by a judge on Tuesday he will be removed from the courtroom and tried in his absence if he continues to interrupt proceedings.
The proceedings were briefly adjourned after Assange shouted “nonsense” as James Lewis, acting for the U.S. government, told a witness that Assange was facing extradition proceedings over the publication of informants’ names and not for handling leaked documents, Reuters reported.
Judge Vanessa Baraitser told Assange, who was in the dock, that he must not speak out even though he will hear things he disagrees with. “If you interrupt proceedings and disrupt a witness who is properly giving their evidence, it is open to me to continue without you in your absence,” Baraitser said. “This is obviously not something I wish to do. I am, therefore, giving you a clear warning.”
The U.S. authorities accuse Australian-born Assange, 49, of conspiring to hack government computers and of violating an espionage law in connection with the release of confidential cables by WikiLeaks in 2010-2011.
Assange’s outburst occurred as the court heard on Tuesday from Clive Stafford Smith, founder of the London-based charity Reprieve, who argues that the Wikileaks disclosures had been instrumental in challenging the U.S. on illegal drone strikes and the secret detention of suspects.
Stafford Smith, a dual US-UK national, said the leaked information had contributed to court findings that criminal proceedings should be taken against senior U.S. officials.
“I say this more in sadness than anger. I would never have believed that my government would do what it did,” he said. “We are talking about criminal offences of torture, kidnapping, rendition, holding people without trial.”
Assange and WikiLeaks enraged the U.S. government a decade ago by publishing thousands of secret American documents. Assange’s supporters see him as a champion of free speech exposing abuses of power and hypocrisy by Washington.
September 7: The UK Supreme Court will hear arguments in November for and against the government’s decision to remove the UK citizenship of a British-born woman who went to Syria as a schoolgirl to join Islamic State.
The case of Shamima Begum has been the subject of a heated debate in Britain, pitting those who say she forsook her right to citizenship and is a security threat, against those who argue she should not be left stateless but rather face trial in Britain.
Begum, who was born to Bangladeshi parents, left London in 2015 when she was 15 and traveled to Syria via Turkey with two school friends. In Syria, she married an Islamic State fighter and lived in the capital of the violent jihadist group’s self-declared caliphate.
Britain stripped her of her citizenship after she was discovered in 2019 in a detention camp in Syria, where three of her children died. The government argued Begum was a threat to national security and should not be allowed to return.
But the Court of Appeal ruled in July that Begum should be let back into Britain to give her a chance to appeal against the removal of her citizenship, a ruling the government called “very disappointing”.
Five Supreme Court justices will hear the government’s appeal against the July ruling as well as Begum’s appeal against the original decision to strip her of her citizenship during two days of hearings on Nov. 23 and 24, Reuters reported.
Begum angered many Britons by appearing unrepentant about seeing severed heads and saying a suicide attack that killed 22 people in the English city of Manchester in 2017 was justified.
September 6: Six times, prosecutors took Curtis Flowers, a Black Mississippi resident, to trial on the same murder case before mostly-white juries. And six times, the trials ended with convictions that were later reversed or with mistrials. But on Friday, two decades after prosecutors began pursuing murder charges against Flowers, they announced that they were dropping the case.
In a memo seeking dismissal of the charges, prosecutors from the Mississippi attorney general’s office wrote that “it is in the interest of justice that the State will not seek an unprecedented seventh trial of Flowers.”
Flowers, who is 50, said in a statement issued by his lawyers that he had never given up on the idea that the case could one day be over. “Today, I am finally free from the injustice that left me locked in a box for 23 years,” said Flowers, who was released from custody on bail late last year.
Flowers had been accused in the 1996 killings of four people in a furniture store in Winona, a small city in Mississippi. Among those killed were the 59-year-old store owner and a 16-year-old boy whose part-time job at the store was his first.
The six trials of Flowers, who had worked at the furniture store, took place over more than two decades. The trials drew attention to the way that Black jurors had largely been excluded by a white prosecutor who oversaw all of the trials. Through Flowers’s trials, 61 of the 72 jurors were white.
In the most recent trial, Flowers was convicted and sentenced to death, but his lawyers appealed the conviction to the U.S. Supreme Court, which ruled last year that the prosecutor, Doug Evans had unconstitutionally kept Black people from serving on the jury.
In the Supreme Court’s majority opinion last year, Justice Brett M. Kavanaugh wrote that “Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process.” By pursuing a “relentless, determined effort to rid the jury of Black individuals,” Justice Kavanaugh wrote, the state wanted to try Flowers “ideally before an all-white jury.”
Evans recused himself from the case in January, and the Mississippi attorney general’s office took over. In its court filing seeking dismissal of the charges, the attorney general’s office suggested that a conviction would be difficult to attain. “There is no key prosecution witness that incriminates Mr. Flowers who is alive and available and has not had multiple, conflicting statements in the record,” the prosecutors wrote, adding that there were other possible suspects.
One of the witnesses who testified against Flowers was later convicted of tax fraud and had since died, the prosecutors wrote. Another witness, who once claimed that Flowers had confessed to the crime while in jail, later admitted that he had been lying, the prosecutors said. That witness, Odell Hallmon, had recanted his story in an interview with the podcast “In the Dark,” which brought wide attention to the case and chipped away at some of the original prosecutors’ arguments.
“Everything was all make-believe,” Hallmon said in the interview.
A spokeswoman for Lynn Fitch, the state’s attorney general, said Fitch would not comment on the case out of respect for the families involved.
During the earlier trials, prosecutors described Flowers as a disgruntled former employee of the furniture store who was angry because he had been fired. He was arrested several months after the killings.
A lawyer for Flowers, Rob McDuff, said on Friday that the case against his client “never made sense.”
“As time went by, even more evidence emerged to corroborate his innocence,” McDuff said. “This prosecution was flawed from the beginning and was tainted throughout by racial discrimination. It should never have occurred and lasted far too long, but we are glad it is finally over.”
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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