Read Judgment: Union of India vs. Central Information Commission & Another
Pankaj Bajpai
New Delhi, March 28, 2022: Highlighting that employees have a legitimate expectation of promotion and that RTI Act is a tool which facilitates the employees and officers in airing their grievances systematically, the Delhi High Court has held that the objective of service jurisprudence is to promote human rights and if employees of an establishment cannot agitate their grievances before judicial forums, these organizations/establishments may become autocratic.
A Division Bench of Justice Manmohan and Justice Sudhir Kumar Jain observed that the employees of a security establishment cannot be deprived of their fundamental and legal rights just because they work in an intelligence and security establishment.
The background of the case was that, second respondent, working as a Superintendent in Administration with Enforcement Directorate (ED), had filed an application under Right to Information Act, 2005 (RTI Act) seeking copies of all the seniority list in respect of LDCs for the period of 1991 till date, as well as copies of the proposal for promotion of LDCs placed before the DPC together with copies of the Minutes of the Meetings and copies of the promotion orders issued on the recommendations of the DPC from time to time.
The said information was directed to be furnished by the Union of India (Appellant) to second respondent by Central Information Commission. Challenging the same, the appellant approached the High Court, whereby the Single Judge confirmed the order of CIC observing that information sought by the respondent from the petitioner does not come u/s 24 of the RTI Act. The matter reached the Apex Court by way of SLP, whereby the Apex Court directed the Delhi High Court to decide the issue with respect to applicability of the RTI Act to the Appellant and thereafter decide the stay application.
After considering the submissions, the High Court found that the Appellant is an intelligence and security organization specified in Second Schedule of RTI Act and is exempt from the purview of RTI Act except when the information pertains to allegation of corruption and human rights violation.
Consequently, the Appellant cannot be called upon to disclose information under the provisions of RTI Act except when the information sought pertains to the allegations of corruption and human rights violation, added the Court.
Speaking for the Bench, Justice Manmohan opined that the expression ‘human rights’ cannot be given a narrow or pedantic meaning, as it does not refer to the rights of the accused alone.
Human rights have been used for a variety of purposes, from resisting torture and arbitrary incarceration to determining the end of hunger and of medial neglect, and in fact, the human rights are both progressive and transformative, added the Bench.
Justice Manmohan said that non-supply of the information/documents is a human rights violation as in the absence of the same respondent No.2 would not be able to agitate her right to promotion.
However, information pertaining to proposals for promotion of third parties cannot be provided to the respondent in view of Sections 8(1)(j) and 11 of the RTI Act, clarified the Bench.
Read Judgment: Arulmighu Palapattarai vs. Pappayee & Others
Pankaj Bajpai
Chennai, March 28, 2022: The Madras High Court has stated that whoever commits an illegal act of encroaching upon a public street, even if it is a temple, should be prevented from undertaking such an illegal act, and hence, if any structure is put up in the public street and thereby, the access to the public in using the street is restricted or prevented, such a structure has to be removed immediately.
The Single Judge N. Anand Venkatesh observed that Courts cannot be hoodwinked by encroaching and constructing a temple in the name of God.
Going by the background of the case, the first & second respondents/plaintiffs filed a suit seeking for the relief of permanent injunction against the first defendant and to restrain him from interfering with the usage of the suit property by putting up any structure or barricade and thereby, prevent the ingress and egress to the property belonging to the plaintiffs. The plaintiffs also sought for the relief of mandatory injunction to restore the suit AB portion to its original position.
The case of the plaintiffs is that they became entitled to the properties on the demise of their mother and the portion shown as AB in the rough plan is classified as a public street in the revenue records vested with the Municipality (second defendant). The further case of the plaintiffs is that for all the tenements, their only access is from Mariamman Koil Street and therefore, it will not be open to anyone to prevent the user or cause obstruction to the ingress and egress from any point in this street.
The grievance of the plaintiffs is that the Temple (first defendant) was making arrangements to put up a barricade in order to raise a structure in the place that has been earmarked as a public street. According to the plaintiffs, if the same is done, it will virtually block the ingress and egress to the property belonging to the plaintiffs. Opposing the same, it was contended that the first defendant was putting up construction in the place belonging to them and the plaintiffs do not have any right to question the same.
The trial Court after analysing the oral and documentary evidence, dismissed the suit observing that there was no evidence to show that the general public was using the subject suit property is a public street. The lower Appellate Court set aside the decree of the trial Court, observing that whoever is affected in using the street from among the general public, will have the right to approach the Court to remove the encroachment/ obstruction put up in the public street.
After considering the submissions, Justice Venkatesh said that it is quite unfortunate that the Municipality virtually attempted to wash off their hands by blindly supporting a flagrant encroachment made by the Temple, probably due to some official who was handling the case wrongly understanding the term “God Fearing”.
The lower Appellate Court rightly held that a technical plea of not making ‘the government’ a party to the suit, will not in any way justify the act of the temple in encroaching upon a public street and putting up a construction, and such hyper-technical plea will not come to the aid of the temple/defendant who had committed a public wrong by encroaching upon a street which was used by the general public, added the Single Judge.
Justice Venkatesh highlighted that even assuming that the plaintiffs have an alternate access to their property, that does not mean that the plaintiffs can be deprived of their right to use a public street for ingress and egress to their property.
This Court in K.Sudarsan and others vs. The Commissioner, Corporation of Madras and others, AIR 1984 MADRAS 292, held that the owner of the property adjacent to a public street has got the right to access to such street at any point at which his property actually touches the street, added the Single Judge.
The High Court therefore directed the temple to remove the entire construction put up in S.No.42, within a period of two months from the date of receipt of copy of this order.
Read Order: Sumit Chawla v. State of Haryana & others
Monika Rahar
Chandigarh, March 28, 2022: The Punjab and Haryana High Court has allowed a Letters Patent Appeal filed by a candidate who in spite of being recommended for selection to the post of District Information & Public Relation Officer by the Haryana Public Service Commission pursuant to his meritorious performance in a written test and interview conducted by HPSC, was declared ineligible by a Committee constituted for verifying the documents submitted by the candidates.
The appellant was required to possess a certain experience of working in a national daily newspaper, and the Committee opined that the newspaper with which the petitioner worked was not a national level newspaper.
While expounding that the decision on eligibility based on the recruitment rules should have been taken by the HPSC, the Bench of Justices G.S. Sandhawalia and Vikas Suri held, “It was for the respondent-Commission rather to undertake the exercise whether the petitioner was eligible under the said Rules and give its recommendations being the expert body. Unfortunately, the Commission was not arrayed as a party respondent.”
Essentially, the appellant- writ petitioner applied for the post of District Information & Public Relation Officer Haryana, which, apart from other qualifications, required the candidates to have 2 years of media experience in the National Daily Newspaper or Television Channel or Publicity Organization of Government or Public Undertaking or University.
The appellant worked for two years with a newspaper called ‘Pal Pal Newspaper’ which was published in Sirsa, Haryana. The appellant, after being recommended by the Haryana Public Service Commission (HPSC) for selection (pursuant to a written test and interview), was declared ineligible for appointment by the Committee constituted for document verification. The verification committee was of the view that the newspaper where the appellant worked was not a National Daily Newspaper.
When the matter came before the Single Judge Bench of the High Court, the Bench upheld the decision of the Committee declaring the appellant ineligible. Aggrieved, the writ-petitoner filed the present Letters Patent Appeal impugning the decision of the Single Judge Bench.
At the very outset, the Court noted that the appellant worked with the concerned newspaper from May 1, 2013, to December 31, 2015, as a Reporter in Kaithal and was earning Rs.3000 per month as honorarium. Further, the Court noted that after taking the written test and the interview conducted by the HPSC, the petitioner emerged as the topper amongst the General Category.
Thus, in light of the above, the Court opined that prima facie the petitioner was not liable to be declared ineligible only on account of a report of the Committee (for document verification) set up by the Department after the names of the recommended candidates were sent by the HPSC after doing the necessary exercise of selection.
Also, the Court examined the report of the Committee which verified the documents of the candidates, and from such examination, the Court opined,
“A perusal of the report of the Committee … would go on to show that… only on checking of the documents, in view of the recommendation letter of the Commission, petitioner was held not eligible on account of the fact that the ‘Pal-Pal’ was not a national newspaper. Provisional appointments were recommended qua other candidates without giving any details regarding their experience. This was an exercise which should have been obtained from the Commission rather than by the Committee to delve into the issue as to whether the petitioner had the necessary qualifications as per the rules.”
Also, on perusing the recommendation letter given by the HPSC, the Court opined that the Commission (HPSC) interviewed and recommended the candidates on the basis of the photocopies of the documents submitted by them. The educational qualifications, experience and the original degrees and certificates were to be checked by the Department, noted the Court. On the heavy reliance placed by the State Counsel upon Clause 3 of the said letter to submit that it was open to the Department to reject and not appoint the petitioner, the Court opined that the said clause was for checking and verifying the original degrees and certificates and not the eligibility criteria which was prescribed under the Rules.
“It was for the respondent-Commission rather undertake the exercise whether the petitioner was eligible under the said Rules and give its recommendations being the expert body”, asserted the Court.
Importantly, the Court observed that although in the present Writ petition the HPSC was not made a respondent, the Commission was arrayed as the third respondent in another Writ Petition (now pending) filed by the appellant, and thus the Court held that the Single Judge Bench should have heard both the petitions together so that the opinion of the Commission (essentially an expert body) would also have come forth for proper assistance of the Court.
On the importance of technical assistance, the Court made reference to the judgment of the Supreme Court in Mohammad Shujat Ali & others Vs. Union of India & others, (1975) 3 SCC 76, wherein it was held that the Court on uninformed data and unaided by technical insights would not interfere with the decision of the Government which is based on the recommendations of the expert body.
Thus, the Court opined that the view of the expert body (HPSC) which was the selecting body and which recommended the names of the candidates (including that of the appellant-writ petitioner), should have been taken into consideration by the Single Judge before rejecting the case of the appellant in limine.
Accordingly, the impugned decision of Single Judge Bench was set aside and the Writ Petition was directed to be heard along with the other (pending) writ petition. Also, the Court directed that it would be imperative to the appellant to implead the HPSC as respondent before the Single Judge Bench.
Read Order: Sagar Sindhwani and others Vs. State of Haryana and others
LE Correspondent
Chandigarh, March 28, 2022: The Punjab and Haryana High Court has come to the aid of some street food vendors working in Sector 56, Guruguram by maintaining status quo with regard to the operation of their vending carts, after it was alleged that they were served with a show-cause notice in an arbitrary manner and the Municipal Corporation was threatening to cancel their licenses.
Granting interim protection to various street food vendors, the Bench of Justice Ritu Bahri and Justice Ashok Kumar Verma has adjourned the matter to April 29, 2022.
In this case, the vendors operating food vending carts in Gurugram were apprehending the cancellation of their licenses as also their removal/eviction at the hands of the respondents-Municipal Corporation of Gurugram(MCG). Thus, the petitioners-vendors approached the High Court for relief.
According to the Vendors, the Municipal Corporation was threatening to cancel the licenses and remove/evict the street vendors. It was their case that they were being harassed by MCG officers despite having valid certificates and licenses for operating their carts.
Counsel for the petitioners, Advocate Manish Dembla, submitted that as per Section 10 of the Street Vendors Act, 2014, if there is any violation with respect to a certificate of vending under the said Act, then before cancellation of the certificate, show-cause notice and an opportunity of hearing has to be given. The main contention of the petitiones’ Counsel was that the show-cause notice dated April 23,2021 was given to which the petitioners gave their reply within 3-4 days. However, no opportunity of hearing was given to the petitioners and now, the respondents were proceeding to cancel their certificates.
But, the Counsel for the Corporation sought a short adjournment to find out whether any opportunity of hearing as per Section 10 of the Act was given to the petitioners, or not.
The matter has now been adjourned to April 29, 2022, and in the meanwhile, the Court has ordered maintenance of the status quo with regard to operating the vending carts.
The street vendors were represented by the Firm, Kochhar & Co. The petition was drafted by Advocate Krishna Vijay Singh and argued by Advocate Manish Dembla with the assistance of Advocates Nachiketa Goyal and Pragya Sharma.
Read Order: Sushma v. Sunil Kumar
LE Correspondent
Chandigarh, March 28, 2022: The Punjab and Haryana High Court has upheld the decision of a Family Court granting divorce decree to a husband against his wife as she had not disclosed the fact of her pregnancy which occurred prior to their marriage.
The Bench of Justice Ritu Bahri and JusticeAshok Kumar Verma added that in the present case, the marriage between the parties had broken down irretrievably and there was no chance of their coming together, or living together again. Further, not to grant decree of divorce would be disastrous for the parties, held the Court.
Additionally, the Court noted that it is well settled that once the parties have separated and separation has continued for a sufficient length of time and anyone of them presented a petition for divorce, it can well be presumed that the marriage has broken down.
The Court was approached with an appeal by the appellant-wife seeking setting aside of judgment and decree of the Additional District Judge, Panipat, whereby petition filed by the respondent-husband under Section 13(1) of the Hindu Marriage Act, 1955 (the HMA) for a decree of divorce by way of dissolution of marriage, was allowed.
The husband applied for the grant of a divorce decree on the ground that the appellant was already pregnant at the time of her marriage with the respondent. This act and conduct of the appellant amounted to cruelty, argued the husband. It was also the husband’s case that the behaviour of the appellant-wife was cruel towards respondent’s family members. The husband was also aggrieved of the fact that the Appellant left the company of the respondent in August, 2007 and despite numerous efforts never returned back.
Resultantly, the husband filed petition a petition under Section 13 of the HMA for a decree of divorce by way of dissolution of marriage, which was allowed by the Family Court, by the impugned judgment and decree of 2014.
After perusing the rival submissions, the Court opined that the appellant was pregnant even prior to the date of her marriage with the respondent and this fact was willfully concealed by her from the respondent and his family members. Further, the Court noted that after joining as JBT teacher, appellant developed some ego problem and started living separately from the respondent as he was unemployed and inferior to her.
From the above-said evidence on record, the Court was of the opinion that it was duly proved that it was the appellant who withdrew from the society of the respondent without any reasonable cause, and that no cogent and reliable evidence was led by the appellant to show that respondent withdrew himself from the company of the appellant without any sufficient reason or cause.
“Rather it is the appellant who has deserted the respondent for a continuous period of not less than two years immediately preceding of the presentation of the petition for divorce”, added the Court.
The next issue which came for consideration in the present appeal was regarding the relationship of the couple coming to an end and if the act of the appellant-wife in not giving mutual divorce to the respondent-husband, amounted to cruelty towards husband, keeping in view the fact that she was not staying with her husband for the last eleven years and there was no scope that they could cohabit as husband and wife again.
On this issue, the Court looked into the law laid down by the Supreme Court in Chandra Kala Trivedi vs. Dr. S.P.Trivedi, 1993 (4) SCC 232 wherein the Top Court was considering a case where marriage was irretrievably broken down and held that the decree of divorce can be granted where both the parties have levelled such allegations against each other that the marriage appears to be practically dead and the parties cannot live together.
Further reference was made to A Jayachandra vs. Aneel Kaur, 2005 (2) SCC 22 wherein the Supreme Court was considering the case of divorce on the basis of cruelty including mental cruelty. Herein, the Court emphasized that the allegation of cruelty is of such nature in which resumption of marriage is not possible, however, referring to various decisions, the Court observed that irretrievable breaking down of marriage is not one of statutory grounds on which Court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in long drawn legal battle, directed in those cases dissolution of marriage.
Coming to the present case, the Court opined that the marriage between the parties had broken down irretrievably and there was no chance of their coming together, or living together again. Further, not to grant decree of divorce would be disastrous for the parties, held the Court.
“The Court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties”, asserted the Court.
Dismissing the Appeal, the Bench concluded that the Family Court was perfectly justified in holding that there were hardly any chances that the appellant and the respondent could lead a happy married life because a lot of bitterness has been created in their relationship.
Read Order: Daljit Singh v. State of Punjab and others
Monika Rahar
Chandigarh, March 28, 2022: While addressing the plea of the victim’s counsel on the addition of Section 307 IPC to the report prepared by the IO under section 173 of CrPC, owing to the infliction of an alleged life-threatening injury on the victim, the Punjab and Haryana High Court has directed the IO to collect medical evidence to see whether the injury was life-threatening so as to make a decision of addition of Section 307 to the FIR.
The Bench of Justice Sureshwar Thakur observed that the investigating officer alone has the prerogative to conduct the investigations into the FIR, and, to also collect evidence with respect to the alleged offences.
In the instant case, an FIR was registered against the accused under Sections 323, 341, 506, 148, 149 IPC. The grievance of the petitioner’s counsel was that despite the infliction of a life-endangering head injury upon the victim by the accused, the investigating officer was not adding the offence constituted under Section 307 IPC against the accused.
At the very outset, the Court opined that directing the investigating officer concerned to add Section 307 IPC, in response to the petitioner’s plea, would tantamount to the Court impermissibly entering into the domain of investigations conducted by the investigating officer. Further, the Court added that the investigating officer alone has the prerogative to conduct the investigations into the FIR and to collect evidence with respect to the afore offences against the accused as also add them in the report prepared and filed under Section 173 Cr.P.C. before the learned Magistrate concerned.
However, the Court also opined that the Investigating Officer was required to analyze all the collected evidence, including the report of the doctor on the nature of the injury inflicted upon the person of the victim, and if upon such analysis of the medical evidence, the offence under Section 307 IPC, is made out against the accused, then in that eventuality, the Court directed the IO to take medical evidence (if not taken) and accordingly add the offence under Section 307 IPC in his report under Section 173 Cr.P.C.
Also, considering the eventually of no offence being made out against the accused under Section 307 IPC, the Court held that it may not be legally permissible for the counsel for the petitioner to yet argue that the aforementioned offence is required to be added against the accused in the report to be filed under Section 173 Cr.P.C. before the Magistrate.
In view of the above, the petition was disposed of with a direction to the investigating officer to collect the opinion of the medical practitioner (if not done yet) with respect to an offence under Section 307 IPC against the accused concerned so as to ensure justice is done to the victim.
Read Judgment: M/s Pahwa Plastics Pvt. Ltd. And Anr. V. Dastak Ngo
Pankaj Bajpai
New Delhi, March 28, 2022: Finding that the manufacturing units of the Appellant- Company (Pahwa Plastics) has a huge annual turnover and also employs around 8000 people, the Supreme Court has held that an establishment contributing to the economy of the country and providing livelihood ought not to be closed down only on the ground of the technical irregularity of not obtaining prior Environmental Clearance (EC) irrespective of whether or not the unit actually causes pollution.
A Division Bench of Justice Indira Banerjee and Justice J.K Maheshwari observed that ex-post facto clearances and/or approvals and/or removal of technical irregularities in terms of a Notification under the EP Act cannot be declined with pedantic rigidity, oblivious of the consequences of stopping the operation of mines, running factories and plants.
The 1986 Act does not prohibit ex post facto Environmental Clearance, as grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with, or can be made to comply with environment norms, is not impermissible, added the Bench.
The observation came pursuant to an appeal u/s 22 of the National Green Tribunal Act, 2010, challenging an order whereby, the Principal Bench of the National Green Tribunal (NGT) had held that establishments such as the manufacturing units of Pahwa Plastics (Appellants), which did not have prior Environmental Clearance (EC) could not be allowed to operate.
After considering the submissions, the Top Court found that the question of law involved in this appeal was, whether an establishment employing about 8000 workers, which has been set up pursuant to Consent to Establish (CTE) and Consent to Operate (CTO) from the concerned statutory authority and has applied for ex post facto EC can be closed down pending issuance of EC, even though it may not cause pollution and/or may be found to comply with the required pollution norms.
Section 21 of the General Clauses Act, 1897 provides that where any Central Act or Regulations confer a power to issue notifications, orders, rules or bye-laws, that power includes the power, exercisable in like manner, and subject to like sanction and conditions, if any, to add to, amend, vary or rescind any notification, order, rule or bye-law so issued, added the Court.
Speaking for the Bench, Justice Banerjee observed that if power to amend or modify or relax a notification and/or order exists, the notification and/or order may be amended and/or modified as many times, as may be necessary.
Finding that the need to comply with the requirement to obtain EC is non-negotiable, Justice Banerjee observed that a unit can be set up or allowed to expand subject to compliance of the requisite environmental norms, as EC is granted on condition of the suitability of the site to set up the unit, from the environmental angle, and also existence of necessary infrastructural facilities and equipment for compliance of environmental norms.
The Apex Court observed that ex post facto environmental clearance should not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors.
“Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularization of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications. The deviant industry may be penalised by an imposition of heavy penalty on the principle of ‘polluter pays’ and the cost of restoration of environment may be recovered from it”, added the Court.
The Apex Court therefore concluded that a unit contributing to the economy of the country and providing livelihood to hundreds of people, which has been set up pursuant to requisite approvals from the concerned statutory authorities, and has applied for ex post facto EC, should not be closed down for the technical irregularity of want of prior environmental clearance, pending the issuance of EC, even though it may not cause pollution and/or may be found to comply with the required norms.
Hence, the Top Court set aside the order of NGT.
Read Judgment: Securities And Exchange Board Of India V. Mega Corporation Limited
Pankaj Bajpai
New Delhi, March 28, 2022: While considering a statutory Appeal under the Securities and Exchange Board of India Act, 1992 , the Supreme Court has noticed that conclusions drawn by SAT did not give rise to any question of law warranting interference of this Court u/s 15Z as the conclusions arrived at by the Tribunal were based on independent findings of fact relating to issuance of misleading advertisements as well as manipulation of scrip prices and profits to lure investors.
A Division Bench of Justice Pamidighantam Sri Narasimha and Justice L. Nageswara Rao observed that the Supreme Court in exercise of its jurisdiction of Section 15Z may substitute its decision on any question of law that it considers appropriate.However, not every interpretation of the law would amount to a question of law warranting exercise of jurisdiction under Section 15Z.
The observation came pursuant an appeal u/s 15Z of the Securities and Exchange Board of India Act, 1992, against the final order of the Securities Appellate Tribunal (SAT), by which the Tribunal had set aside the order passed by the Securities and Exchange Board of India (SEBI – Appellant), restricting Mega Corporation (respondent – company) accessing the capital market for one year and further restraining the promoter directors from buying, selling or otherwise dealing with securities for India.
The allegation related to manipulation of the accounts for the year 2004-05 to show inflated profits to lure investors into buying shares of the company. SEBI traced the device by which the shares of the Company were bought and sold in the market and it was alleged that more than 2 crore shares were purchased by certain entities in the physical form in ‘off-market’ deals and then transferred those shares in subsequent ‘off-market’ deals to certain other outside entities connected to the company.
After considering the submissions, the Top Court noted that the jurisdiction of the Supreme Court u/s 15Z to consider any question of law arising from the orders of the Tribunal should be seen in the ‘context’ of the powers and jurisdiction of the Tribunal under Sections 15K, 15L, 15M, 15T, 15U and 15Y of the Act, as it is in the functioning of the Tribunal to re- examine all questions of fact at the appellate stage while exercising jurisdiction u/s 15T of the Act.
Speaking for the Bench, Justice Narasimha observed that the Supreme Court while exercising appellate jurisdiction u/s 15Z of the Act would be measured in its approach while entertaining any appeal from the decision of SAT and this freedom to evolve and interpret laws must belong to the Tribunals to subserve the regulatory regime for clarity and consistency and it is with this perspective that the Supreme Court will consider appeals against judgment of the Tribunals on questions of law arising from its orders.
Finding that the allegations of ‘off-market’ transactions necessitated its proof and the connectivity of the ‘outside entitles’ with the Company, the SAT in its appellate jurisdiction came to the conclusion that the connectivity could not be established and that the conclusions drawn by the Board were insufficient, noted the Bench.
Justice Narasimha found that the Board had, in its investigation, secured a letter from one of the directors of M/S DPS Shares and Stock Brokers Pvt. Ltd., the stockbrokers of the company, and this letter contradicted the stand taken by the company in its defence.
“When asked to explain the transaction relating to purchase and sale of scrip in somewhat suspicious circumstances, the Company took refuge by stating that the transactions were in the exclusive knowledge of the stockbroker company. The Board, in its investigation, secured a letter from a stockbroker stating that their two directors, one Shri Pratik Shah and one Shri Sujal Shah, had handled the transactions in the alleged scrip by opening a current account by using dummy resolutions without the knowledge of Shri Dinesh Masalia, the third director of the stockbroker company. On this basis, it was concluded that the transaction was fictitious. In defence, the Company sought permission to cross-examine the said Shri Dinesh Masalia, but no permission was granted. SEBI proceeded and gave its final orders on 07.01.2008. It is in this context that the Company made its submission before the Tribunal that principles of natural justice were violated because an opportunity to cross-examine is not presented”, added the Bench.
The Court noticed that the Tribunal had arrived at its conclusions based on independent facts concerning the allegations under Regulation 4 relating to the issuance of misleading advertisements as well as allegations relating to manipulation of scrip prices and profits to lure investors. The Tribunal concluded that the allegations could be proved.The Top Court opined that as it was not interfering in the findings of fact arrived at by the Tribunal, the Company’s claim for cross-examining would pale into insignificance and this question presented itself merely as an academic issue.
The Bench was of the opinion that, there was no necessity for the Tribunal to lay down as an inviolable principle that there is a right of cross-examination in all cases. In fact, the conclusion of the Tribunal based on evidence on record did not require such a finding.
The Court, therefore, set aside the findings of the Tribunal to this extent while upholding its decision on all other grounds. It left the question of law relating to the right of cross-examination open and to be decided in an appropriate case by this Court.The general observations of the Tribunal that there is a right of cross-examination was also set aside.
Read Judgment: The Agricultural Produce Marketing Committee, Bangalore vs. The State of Karnataka & Ors.
Pankaj Bajpai
New Delhi, March 28, 2022: Finding that there has been a trend of land owners filing fresh cases seeking lapse of acquisition on the basis of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, although such land owners may have earlier unsuccessfully filed writ petitions challenging the acquisition notifications, the Supreme Court has ruled that the landowners who had the benefit of interim orders granted in their favour in proceedings initiated by them against the acquisition could not later take benefit under such provision.
Applying the law laid down by this Court in Indore Development Authority Vs. Manoharlal & Ors., (2020) 8 SCC 129to the facts of the present case, a Division Bench of Justice M.R Shah and Justice B.V Nagarathna observed that the view taken by the High Court while declaring the acquisition proceedings had lapsed u/s 24(2) of the Act, 2013, was unsustainable
The observation came pursuant to an appeal by the Agricultural Produce Marketing Committee, Bangalore (APMC – Appellant) challenging the judgment, whereby the High Court had answered in favour of original land owners (private respondents) and declared that the acquisitions of the lands in question had lapsed u/s 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
After considering the submissions, the Apex Court found that despite the fact that a number of issues/grounds were raised before the High Court on the legality and validity of the acquisition proceedings, the Single Judge decided only one issue, namely, whether the acquisition proceedings have lapsed by virtue of the 2013 Act.
Whereas a number of issues/grounds were raised and as such the original reliefs sought (acquisition proceedings under Act 1894) were the main reliefs which were required to be dealt with and considered, unfortunately, the Single Judge did not give findings on the other issues/grounds and on the reliefs sought, added the Court.
Speaking for the Bench, Justice Shah observed that when a number of submissions were made on the other issues/grounds, then the High Court ought to have considered the other issues and ought to have given the findings on other issues also.
Because of not deciding the other issues and deciding the matter only on one issue and thereafter when the decision on such one issue, is held to be bad in law, this Court has no other alternative but to remand the matters to the Single Judge for deciding the Writ Petitions afresh on all other issues, added the Bench.
Justice Shah noted that so far as the common judgment and order passed by the High Court declaring that the acquisition proceedings have lapsed u/s 24(2) of the Act, 2013, is concerned, the same is unsustainable in view of the decision of the Constitution bench of this Court in the case of Indore Development Authority (Supra) wherein it was concluded that “deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid”. Therefore, observing that though a number of other issues were raised on the legality of the acquisition proceedings under the Land Acquisition Act, 1894 and though other points for consideration were raised/framed by the High Court, since none of the issues are adjudicated by the High Court on merits, the Apex Court remanded the matter to the Single Judge for deciding the writ petitions afresh and to adjudicate on all the other issues, other than the lapse of acquisitions u/s 24(2) of the Act, 2013.
Read Order: Anil Kumar and Another v. Sunil Soni
Monika Rahar
Chandigarh, March 28, 2022: While dealing with a civil revision petition filed against the order of the Executing Court issuing summons to the judgement-debtor, the Punjab and Haryana High Court has observed that the provisions of Order 21 Rule 22 of Code of Civil Procedure nowhere creates a complete bar to the issuance of a notice to the judgment debtor.
While upholding the decision of the Executing Court, Justice Alka Sarin opined, “… the reasoning given by the Executing Court that once notice was issued to the judgment debtor the proceedings could not be dropped merely at the asking of the decree-holder and if the decree-holder had any objections to the issuance of the notice the same should have been taken at the first instance and not when the notice was already issued, cannot be faulted with.”
Initially, in this case, the decree-holder filed an application for execution of the decree in the executing Court. The Executing Court issued a notice to the judgment debtor in the presence of the counsel for decree-holder. Thereafter, the decree-holder failed to file the registered A.D cover as directed by the Court. The counsel for the decree-holder pressed for an ex-parte decree against the judgment debtor. The Executing Court declined the prayer made by the decree-holder and issued notice to the judgment debtor.
Thus, the High Court was approached by the decree-holder, with a civil revision petition under Article 227 of the Constitution of India challenging this order issuing Notice to the judgment-debtor.
The counsel for the petitioners contended that the order of eviction was passed on September 14, 2021, and hence no notice was required to be issued to the judgment debtor in view of the provisions of Order 21 Rule 22 CPC. In support of his argument, the counsel relied upon judgments passed by the Punjab and Haryana High Court in Sh. Suresh Garodia Vs. Mr. Niyaz Ahmed Khan & Anr., 2020(3) RCR (Civil) 583, and Parminder Singh Sandhu Vs. Maninder Singh in CR-1604 of 2015.
The Court observed at the outset that the Notice in question was issued in the execution application to the judgment debtor in the presence of the counsel for decree-holder who at that point of time never objected to the issuance of summons to the judgment debtor in the first place. Thereafter, the Court observed that the decree-holder failed to file the registered A.D cover as directed by the Court since the alternate address of the judgment debtor was Rajasthan and, subsequently, the counsel for the decree-holder pressed for an ex-parte decision against the judgment-debtor, which was declined by the Executing Court.
Further, the Court opined that the reasoning given by the Executing Court that once notice was issued to the judgment debtor the proceedings could not be dropped merely at the asking of the decree-holder and if the decree-holder had any objections to the issuance of the notice the same should have been taken at the first instance and not when the notice was already issued, cannot be faulted with.
While referring to the provisions of Order 21 Rule 22 CPC, the Court observed that nowhere this provision creates a complete bar to the issuance of a notice to the judgment debtor. In the present case, the Court noted that the Executing Court opted to issue notice to the judgment debtor.
“Once the process has been initiated, the Executing Court was well within the law to order the continuation of the process and order the issuance of notice to be served upon the judgment debtor”, held the Court.
Thus, finding no illegality or infirmity in the order passed by the Executing Court, the Court dismissed the present revision petition.
Read Judgment: Malliga vs. P. Kumaran
Pankaj Bajpai
Chennai, March 25, 2022: Observing that a Will has to be proved only in accordance with Section 68 to 70 of the Indian Evidence Act, the Madras High Court after referring to various judgments of the Apex Court and other High Courts, has clarified that examination of attesting witness is mandatory only where the genuineness or validity of the Will is questioned.
The Single Judge N. Anand Venkatesh opined that the Courts had erred in acting upon the Will without the same being proved as per the mandate prescribed under the Evidence Act and both the Courts erroneously acted upon the Will merely based on the stand taken by the defendant.
The observation came pursuant to a suit by plaintiff/respondent seeking a suit seeking for the relief of partition of the suit properties and for allotment of half share in favour of the plaintiff.
Going by the background of the case, the properties were originally owned by Chinnadurai Mudaliar through a registered sale deed, who executed a Will and bequeathed the property in favour of the Male heirs of his nephews Purusothaman and Murugesa Mudaliar. The plaintiff is the son of Purusothaman and the defendant is the wife of Murugesa Mudaliar. After the death of Chinnadurai Mudaliar, the property was jointly enjoyed by Purusothaman and Murugesa Mudaliar. Thereafter, the plaintiff was born in the year 2003 and the father of the plaintiff viz., Purusothaman went to madras for his avocation and requested Murugesa Mudaliar to give his share in the cultivation that is made in the property. Later, Murugesa Mudaliar died and the defendant took possession of the suit property and was harvesting the crops. It is alleged that she did not give any share to the father of the plaintiff.
The Plaintiff on attaining majority approached the defendant and requested to give half share in the suit property as per the Will. The defendant refused to give any share to the plaintiff. In the meantime, the plaintiff also applied for a joint patta and joint patta was issued in his name through proceedings. Even thereafter, the defendant was not willing to give the share of the plaintiff. Left with no other alternative, the suit was filed seeking for the relief of partition and allotment of half share in the suit property.
The defendant filed a written statement taking a defence that Chinnaduari Mudaliar and Purusothanam orally sold their entire share to the defendant in the year 1989 and consequently, the defendant was in possession and enjoyment of the suit property. She was also paying the kist and tax receipts were issued in her name. She completely denied the right of the plaintiff in the suit property. On appreciation of oral and documentary evidence, the Courts concurrently held against the defendant and the suit was decreed. Aggrieved by the same, the defendant has filed this second appeal.
After considering the submissions, Justice Venkatesh found that both the courts had admitted the Will in evidence and acted upon the same, only on the ground that the defendant did not dispute the availability of the Will.
Insofar the Will is concerned, the Evidence Act prescribes the manner in which a Will should be proved u/s 68 of the Act, added the Single Judge.
Justice Venkatesh observed that Section 68 of the Evidence Act only provides for an exception under the proviso to the said Section wherein it is specifically provided that it shall not be necessary to call an attesting witness in proof of execution of any document, “not being a Will”, which has been registered in accordance with the provisions of the Indian Registration Act, unless its execution by the person by whom it purports to have been executed is specifically denied.
“The suit itself was filed only based on the Will executed by Chinnaduari Mudaliar. The plaintiff did not plead any other case to derive the source of his right in the suit property other than the Will marked as Ex.A6. Therefore, there is no occasion for this Court to consider any other alternative source of right in the absence of pleadings and evidence available on record”, added the Single Judge.
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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