Read Order: Mohinder Singh & Another v. State of Punjab & Another
Monika Rahar
Chandigarh, January 5, 2022: While dealing with a petition under Section 482 of the Cr.P.C., the Punjab and Haryana High Court has held that as per the settled position of law a High Court has the power to set aside the judgment of conviction against an accused on the basis of a valid compromise.
However, making a note of caution, the bench of Justice Vikas Bahl mentioned,“Thus, it goes without saying that the cases where compromise is struck post-conviction, the High Court ought to exercise such discretion with rectitude, keeping in view the circumstances surrounding the incident.”
The petitioners had approached the Court with a prayer seeking quashing of criminal proceedings emanating from an FIR registered against the petitioners along with others. This FIR resulted in their conviction under Sections 452, 323, 506 read with Section 34 of IPC. Thereafter, an appeal was made before the High Court challenging the decision of conviction. However, during the pendency of this appeal, the matter was compromised. The Illaqa Magistrate in its report stated the compromise to be genuine and bona fide.
The petitioners’ counsel submitted that the compromise was genuine and bonafide and he referred to the judgment in Ram Parkash and others Vs. State of Punjab and others (CRM-M-17272-2015) to contend that under similar circumstances, the petition under Section 482 of the Cr.P.C. was entertained and the FIR with all subsequent proceedings was quashed and even the judgment of conviction was set aside on the basis of compromise.
The State Counsel, on the other hand, opposed this petition and submitted that in the present case, the petitioners had already been convicted.
The Court was of the opinion that a perusal of the judgment of the Apex Court in the case of Ramgopal & Anr v. The State of Madhya Pradesh and Others would show that it has been held therein that the extra ordinary power enjoined upon a High Court under Section 482 Cr.P.C. can be invoked beyond the metes and bounds of Section 320 Cr.P.C. It has further been observed that criminal proceedings involving non heinous offences can be annulled irrespective of the fact that trial has already been concluded and appeal stands dismissed against conviction and that handing out punishment is not the sole form of delivering justice.
The Court noted that the occurrence which resulted in the FIR was a purely personal/ criminal act of private nature; the injuries were not dangerous to life and did not exhibit an element of mental depravity, and therefore quashing criminal proceedings would not override public interest.
According to the Bench, the petitioners’ conviction was irrelevant considering the fact that non-serious nature of injuries of the offence, the compromise was voluntary, and that the object of administration of the criminal justice system would remain unaffected on acceptance of the said amicable settlement between the parties and /or resultant acquittal of the petitioners.
Thus, the petition was allowed. The FIR and all the subsequent proceedings arising therefrom including judgment and order of conviction were set aside/quashed.
Read Order: Naveen v. State of Haryana
Monika Rahar
Chandigarh, January 5, 2022: While dealing with an appeal in an alleged case of rape, the Punjab and Haryana High Court has reiterated the distinction between the admissibility and the probative value of a piece of evidence.
The Division Bench of Justice Ajay Tewari and Justice Pankaj Jain observed that a document may be admissible but as to whether the entry contained therein has any probative value may still be required to be examined.
In this case, a 14-year-old girl was allegedly enticed away and raped by the accused- appellant. On the complaint of the prosecutrix’s father (complainant) an FIR was registered under Section 363/366-A of IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012. But before the Trial Court, two main prosecution witnesses (the prosecutrix and her father) turned hostile by claiming that there was no rape and that the prosecutrix was in fact a major.
It was also claimed that the age of the prosecutrix was reduced by her father in her school records for admission purposes. The Trial Court, however, relied on the medical evidence, which showed traces of the appellant’s semen on prosecutrix’s underwear. The trial court further held that the oral version regarding prosecutrix’s age could not be preferred over the school record and consequently, the appellant was convicted and sentenced. Hence, this appeal before the High Court was filed by the accused.
The appellant’s counsel argued that the school records lost their probative value because the prosecutrix’s age was lowered from 19 years to 14 years in her school records solely on her father’s oral statement without asking for any documentary proof of her age (like a birth certificate). It was further stated that the appellant was also minor at that time but was certified to be tried as an adult.
On the contrary, the State counsel argued that the prosecutrix and her father turned hostile because they were won over by the opposite party and thus their statements about the prosecutrix’s age should not be preferred over the age recorded in her school records. It was argued that since the date of birth in school records was entered many years ago, it should be presumed that the same was correct. Further, he relied upon Section 35 of the Indian Evidence Act to support his case.
At the outset, the Court noted that the prosecutrix herself stated that it was a consensual act and the only point of contention that remained was finding prosecutrix’s true age. The Court opined that the State counsel was right in relying upon Section 35 of the Indian Evidence Act qua admissibility of the school leaving certificate.
However, the Court stated,“..it is a settled law that admissibility of a document is one thing and the probative value thereof is different.”
The Bench referred to the judgment of the Apex Court in Vishnu v. State of Maharashtra wherein it was held that for determining the age of the child, the best evidence is of his/her parents, if it is supported by un-impeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the un- impeccable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, Government Hospital/ Nursing Home etc, the entry in the school register is to be discarded.
Applying the above mentioned legal position to the present case, the Court opined that no probative value could be attached to the school leaving certificate and the conviction of the accused/appellant as made by the trial Court and the sentence imposed was not legally tenable.
Therefore acquitting the accused/appellant, the High Court allowed the appeal.
Read Order: Amit v. State of Haryana
Monika Rahar
Chandigarh, January 5, 2022: While dealing with a petition under Section 438 of the Cr.P.C., the Punjab and Haryana High Court has granted anticipatory bail to an accused on the ground that the injury caused to the complainant was attributed only to other co-accused of the petitioner and not to the petitioner himself. The fact that the petitioner had already joined the investigation was also one of the deciding factors.
This entire case emanated from two injuries that were caused to the complainant by the co-accused of the petitioner while the petitioner was present on the scene of the crime with a danda(stick), which was later recovered from him. Initially, an FIR was lodged under Sections 323, 324, 341, 506, 34 of IPC but later both the injuries were declared ‘grievous in nature’ and hence Sections 325 and 326 of IPC were also added.
The petitioner’s counsel argued that both the injuries to the complainant were attributed to the other co-accused of the petitioner and that the petitioner was merely alleged to have been armed with danda and not with causing any injury. It was further submitted that the petitioner already joined the investigation and the alleged danda was already recovered from him and thus, nothing was left to be recovered.
This bail plea was opposed by the State counsel and the complainant on the ground that the petitioner had caused injury to the complainant’s mother and uncle.
After having considered these rival submissions, the Bench of Justice Vikas Bahl noted, “it is co-accused of the petitioner who have been attributed grievous injury inflicted upon the complainant and the petitioner has not been attributed any specific injury and even the injury to the mother of the complainant is simple in nature and the danda, which the petitioner was allegedly carrying, has already been recovered from the petitioner..”.
The Court also observed that the petitioner was not involved in any other case and that there was a substantial delay in declaring the injuries as grievous. Thus, the present petition for anticipatory bail was allowed and the petitioner was directed to join the investigation as and when called upon to do so.
Read Judgment: Seemajan Kalyan Samiti vs. Union of India & Others
Pankaj Bajpai
Jodhpur, January 5, 2022: The Jodhpur Bench of the Rajasthan High Court has opined that what should be the buffer zone for permitting mining operations and other commercial operations near the international border, cannot be subject matter of decision by the High Court in a writ petition.
A Division Bench of Justice Akil Kureshi and Justice Rameshwar Vyas observed that whether to continue with the check posts and in what manner, is equally a decision of policy to be taken by the appropriate authorities, who are responsible and entrusted with the task of safety and security of the State and its citizens.
The observation came pursuant to a PIL filed by Seemajan Kalyan Samiti (Petitioner) seeking a direction to the Union of India (Respondents) that ten kilometer of area from international border line (India and Pakistan) should be declared as no mining/ commercial/ industrial zone.
Consequently, the Petitioner also prayed that the permission for said mining lease already granted should be cancelled, and that the decision to shut down Border Intelligence Chowkis be reversed.
The counsel for the petitioner vehemently contended that the mining operations in sensitive border zone are a serious threat to the security of the State.
Even the Union of India is also of the opinion that there should be no mining in these sensitive areas. However, miner minerals being the State subject, the State Government has not put any restriction on mining.
After considering the submissions, the High Court noted that the Petitioner has sought for interference in very sensitive policy matters.
We do not see any dearth of power with Union of India in taking such policy decision, as may be found necessary and implementing them, added the Court.
Thus, the High Court dismissed the petition and refused to venture into such a sensitive policy decision.
Read Judgment: Shobhabai Narayan Shinde vs. The Divisional Commissioner, Nashik Division, Nashik & Ors.
Pankaj Bajpai
New Delhi, January 5, 2022: The Supreme Court has opined that no remedy of appeal is envisaged against an order of the State Election Commission or its delegatee – the Collector, u/s 14B(1) of the Maharashtra Village Panchayats Act, 1959, rejecting the complaint or to drop the proceedings for declaration of a Sarpanch/Member having incurred disqualification.
Such order passed by the Collector as the delegatee, is deemed to have been passed by the State Election Commission itself, and even the State Election Commission cannot step in thereafter in any manner much less in the guise of reconsideration or review of such order, added the Court.
A Division Bench of Justice A.M. Khanwilkar and Justice C.T. Ravikumar observed that for the nature of power exercised by the State Election Commission u/s 14B, no remedy of appeal is envisioned by the Maharashtra Village Panchayats Act.
Going by the background of the case, Shobhabai Narayan Shinde (Appellants) contested elections held in September, 2018 for electing a new Panchayat. Thereafter, he was directly elected as a Sarpanch of Village Panchayat, Kusumba, in the State of Maharashtra, from public, whereas, he was elected as a member of the same Village Panchayat. Aggrieved by the same, the second Respondent filed two Dispute Applications in the office of fifth Respondent (Collector), seeking declaration u/s 14B(1) of the Maharashtra Village Panchayats Act, 1959, that the appellants stood disqualified for not submitting the election expenses within the stipulated time.
The Collector, however, rejected both the Dispute Applications. On appeal, the Divisional Commissioner, Nasik, declared the appellants as disqualified and ineligible to remain as Gram Panchayat Sarpanch/Member. When the matter reached High Court, it affirmed the order of disqualification passed by the Divisional Commissioner against the appellants.
After considering the submissions, the Apex Court noted that the power of State Election Commission u/s 14B(1) to declare that the Sarpanch/Member of a Panchayat as disqualified, is to be exercised by the Collector and not the Divisional Commissioner.
Similarly, the Divisional Commissioner can exercise power only in respect of matters specified in Section 14B(2) to remove the disqualification incurred under subSection (1) or reduce the period of such disqualification, added the Court.
In either case, the Top Court is of the opinion that the power to decide concerned issues is that of the State Election Commission, which thenceforth could be exercised by its concerned delegatee in respect of matters specified in the stated order.
Speaking for the Bench, Justice Khanwilkar noted that a limited window against the order u/s 14B(1) passed by the Collector declaring the Sarpanch/Member of a Panchayat as disqualified, is kept open before the Divisional Commissioner to remove such disqualification or to reduce the period thereof in deserving cases.
“Section 16 is a provision which speaks about the disability from continuing as the member of a Panchayat, consequent to incurring disqualification or has been so declared u/s 14 of the Act. Once a Sarpanch/Member is disqualified u/s 14B by virtue of an order u/s 14B(1), it would give rise to two situations – the first is that the person concerned can invoke option u/s 14B(2) for removal of his disqualification or for reduction of the period of such disqualification. The second is the obligation fastened upon the Collector to decide the issue as to whether vacancy has occurred on account of such disqualification”, observed the Bench.
Justice Khanwilkar therefore noted that once it is held that the Divisional Commissioner had no jurisdiction to entertain the appeal against the order of the Collector u/s 14B(1) rejecting the complaint filed by the 2nd Respondent, no other issue needed examination by the High Court at his instance.
Hence, the Apex Court quashed the orders passed by the Divisional Commissioner.
Read Judgment: The Rajasthan Marudhara Gramin Bank (rmgb) & Anr. vs. Ramesh Chandra Meena & Anr.
Pankaj Bajpai
New Delhi, January 5, 2022: The Supreme Court has observed that there is no absolute right in favour of the delinquent officer’s to be represented in the departmental proceedings through the agent of his choice and the same can be restricted by the employer.
A Division Bench of Justice M.R. Shah and Justice Sanjiv Khanna observed that as a matter of right in each and every case, irrespective of whether charges are of severe and complex nature or not, the employee as a matter of right cannot pray that he may be permitted to represent through the agent of his choice.
In this case, the Respondent-Ramesh Chandra Meena working as Cashier – cum Clerk, was alleged to have committed certain irregularities amounting to misconduct. Accordingly, a show cause notice was issued by the Rajasthan Marudhara Gramin Bank (Appellant) whereby it was stated that Respondent had committed irregularities while granting loans to farmers / villagers under the loan scheme and he did not take adequate precautions.
It was also stated that without written mandates of borrowers, he transferred the loan amount in favour of another person and had thus committed misconduct. Hence, Departmental Inquiry was initiated against him and charge sheet was served in terms of Rajasthan Marudhara Gramin Bank (Officers and Employees) Service Regulation, 2010. An opportunity was afforded to the Respondent to take assistance of a defence representative (DR), however, the Respondent informed the Enquiry Officer that he may be allowed to defend himself in the inquiry through a legal practitioner.
Keeping in view the restrictions under Regulation 44 of the Regulation, 2010, Respondent’s request permitting him to defend himself through a legal practitioner came to be declined. Challenging the same, the Respondent approached the High Court, and the Single Judge directed the Appellant-Bank to permit the Respondent to be represented through a retired officer of the Bank in the disciplinary proceedings. Not satisfied, the Bank approached the Division Bench, but in vain, as the Single Judge’s decision was not interfered with.
After considering the arguments, the Apex Court observed that the respondent delinquent employee has no absolute right to avail the services by ex-employee of the Bank as his DR in the departmental proceedings.
It is true that Regulation 44 puts specific restriction on engagement of a legal practitioner and it provides that for the purpose of an enquiry under Regulation, 2010, the Officer or Employee shall not engage a legal practitioner without prior permission of the competent authority, added the Court.
Therefore, the Top Court noted that even availing the services of legal practitioner is permissible with the leave of the competent authority.
However, Regulation does not specifically provide that an employee can avail the services of any outsider and / or ex-employee of the Bank as DR, and therefore, Regulation, 2010 neither restricts nor permits availing the services of any outsider and / or ex-employee of the Bank as DR and to that extent Regulation is silent, added the Top Court.
“The Bank has justified its action of not permitting ex-employee of the Bank as DR and according to the Bank, the ex-employee who themselves may have been subject of a disciplinary enquiry/ charge-sheet / dismissed from service; the ex-employee might be a part of vigilance or audit sections who come across a lot of information of confidential nature and therefore, if they are allowed to be DR in the departmental proceedings, which would result in grave injustice; the solemn nature of proceedings is taken away and would result in issues of orderliness as well as decorum when a disgruntled ex-employee is enabled to act as defence representative; they may adopt delay tactics in departmental enquiry and may not permit completion of department enquiry within six months as mandated by the CVC Circular and as per Vigilance Handbook adopted by the Bank”, observed the Bench.
The Apex Court therefore held that the High Court committed an error in permitting the delinquent officer to be represented in the departmental enquiry through an ex-employee of the Bank.
Read Order: Ram Singh @ Ramu @ Ramu Siteka v. State of Punjab
Monika Rahar
Chandigarh, January 5, 2022: While dealing with a bail plea, the Punjab and Haryana High Court, has reiterated that if no recovery of narcotic substance is made from the accused person and the charges against him are framed solely on the basis of a disclosure statement made by his co-accused from whom contraband substances were recovered, then the accused person should be granted the benefit of pre-arrest bail.
The Bench of Justice Vikas Bahl was dealing with a petition filed under Section 438 of the Cr.P.C. for seeking anticipatory/ pre-arrest bail in an FIR registered against the accused under Sections 21 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
The petitioner’s counsel argued that no recovery was made from the petitioner and that he was only implicated on the basis of the disclosure statement made by his co-accused from whom 10 grams of heroin was recovered. It was also argued that the recovery would not fall under the category of commercial quantity and was marginally higher than a smaller quantity.
The Counsel cited the judgments in Mewa Singh v. State of Punjab (CRMM-12051-2020) and Daljit Singh v. State of Haryana (CRM-M-12997-2020) to argue that if a person has only been proceeded against on the basis of disclosure statement of co-accused and no recovery has been effected from the petitioner, then he should be granted the benefit of anticipatory bail.
This bail plea was opposed by the State counsel on the ground that the petitioner’s presence was needed to investigate the source of the contraband recovered.
The Court found substance in the case argued by the petitioner and keeping in view the law laid down in Mewa Singh’s case (Supra) and Daljit Singh’s case (Supra), the Court said, “Keeping in view the above-said facts and circumstances, more so, the fact that no recovery has been effected from the petitioner and he has only been involved on the basis of disclosure statement made by co-accused without there being any other connecting evidence and even the alleged recovery from the co-accused is 10 grams of heroin would not fall in the category of commercial quantity inasmuch as a commercial quantity of heroin is 250 grams and in fact the said recovery of 10 grams of heroin is marginally higher than the small quantity of 5 grams of heroin… this Court deems it appropriate that the present petition deserves to be allowed.”
Accordingly, the petition was allowed and the petitioner was directed to be released on bail in the event of his arrest, subject to certain bail conditions.
Read Order: Ajit Kumar & Another v. State of Haryana & Others
Monika Rahar
Chandigarh, January 5, 2022: While granting relief to the landowners who were excluded from ‘Land Pooling Scheme’ notified by the Haryana State Industrial and Infrastructure Development Corporation (HSIIDC) for not acting within time,the Punjab and Haryana High Court has sternly remarked that even though no detailed procedure and manner for inviting applications under the said scheme was prescribed, yet the Doctrine of Fair Play would come into operation.
Reflecting on the Court’s duty to step into the shoes of a litigant, the Division Bench of Justice Tejinder Singh Dhindsa and Justice Vinod S. Bhardwaj stated that the Corporation cannot be permitted to take benefit of its own wrongs and defeat the rights accrued by way of legitimate expectations and doctrine of fair play in favour of the land owners.
This Writ Petition was filed seeking a direction to the respondent-Corporation to consider and allot an industrial plot to the petitioners under the Land Pooling Scheme in lieu of the land of the petitioners acquired for the public purpose namely development and setting up of Industrial Model Township, Kharkhoda (IMT Kharkhoda).The petitioners were running an industry from the said land.
In 2010, HSIIDC issued a notification for acquiring the land for the development project. The petitioners filed objections which resulted in recommendation in favour of the release of the land to the extent of running a factory on a part of the land owned by the petitioners. The remaining area was thus recommended for acquisition with a comment that if the petitioners ever wished to expand their factory at a later date, the HSIIDC shall consider allotting 1-acre site at the rate of acquisition subject to payment of the applicable IDC/EDC/statutory charges.
A writ petition was filed against this recommendation which was partly allowed holding that it would be reasonable to direct release of 1 acre of land. The said judgment was challenged before the Supreme Court by two separate SLPs by the petitioners as well as the HSIIDC, and the same was dismissed. As a result, via a notification, an additional parcel of land along with the portion that was not acquired by HSIIDC was released. In the meanwhile, the respondent-HSIIDC had notified a Land Pooling Scheme on August 14,2012.
The petitioners claimed that since their land stood acquired by the HSIIDC, hence, they were seeking consideration in terms of the notified Land Pooling Scheme of the HSIIDC instead of monetary compensation and R & R policy.
The issue that arose in this case was whether the petitioners were entitled to be considered under the Scheme or they were to be debarred for not exercising the option within the period prescribed in scheme.
The HSIIDC argued that the option in question was to be exercised by landowners within 60 days but they failed to so. It was argued that having failed to apply before the cut off date prescribed under the scheme, the applications submitted at the behest of the petitioners on July 31,2020 could not be considered under the scheme after a delay of nearly 8 years.
It was contended that the grievance of the petitioners could not be considered because finality was to be given to the proceedings at a particular point in time, monetary compensation in respect of the land was already deposited with the competent Court and the petitioners were not ‘oustees’ within the Scheme.
The Court looked into the statement of object of the scheme and opined that it is a social welfare scheme intended to promote the welfare of the landowner and therefore it has to be interpreted on the parameter of a welfare scheme. It was never designed as a one- time measure, rather, the scheme aimed to extend the benefit even to the land owners whose land stood acquired prior in point of time.
Disagreeing with the argument of HSIIDC, the Court said,“The suggested interpretation that the land owner under the Land Pooling Scheme is not an oustee, in our view would not be a correct approach in terms of the objects enshrined in the Land Pooling Scheme.”
The Court also opined that even though publication of the scheme in the gazette may be deemed as notice to the general public, however, it could not be overlooked that gazette notifications are ordinarily not available to the common man. Further, while addressing HSIIDC’s plea that allowing petitioner’s case would cause prejudice to the Corporation, the Court concluded that it cannot be said that merely by a change in the manner in which the compensation in lieu of land acquired is to be given to the landowner, it would cause prejudice to respondent.
The failure on the part of the landowner to exercise an option on account of lack of information and knowledge of the scheme coupled with the evident failure on the part of the respondent- Corporation to apprise the landowners about the existence of the scheme and evasive response to the specific allegations of deliberate misconduct against the respondent-Corporation made the Court to come to the conclusion that a valuable right had accrued in favour of landowner to be given an opportunity to exercise an option.
The High Court noted that the procedural safeguards have to be tested on the consequences that may visit a person affected or who claims to be prejudiced.
While allowing the petition, the Court directed the petitioners to be considered eligible under the Land Pooling Scheme and held that the HSIIDC shall be entitled to claim interest on the amount of monetary compensation deposited in the Court of Additional District Judge, Sonepat.The respondent was directed to hold a draw of lot for allotment of a plot to the petitioners under the Land Pooling Scheme within a period of three months thereafter.
Read Judgment: I-pay Clearing Services Private Limited V. Icici Bank Limited
Pankaj Bajpai
New Delhi, January 4, 2022: The Supreme Court has opined that merely because an application is filed u/s 34(4) of the Arbitration and Conciliation Act, 1996 by a party, it is not always obligatory on the part of the Court to remit the matter to Arbitral Tribunal.
The discretionary power conferred u/s 34(4) of the Act, is to be exercised where there is inadequate reasoning or to fill up the gaps in the reasoning, in support of the findings which are already recorded in the award, added the Court.
A Division Bench of Justice R. Subhash Reddy and Justice Hrishikesh Roy therefore observed that under guise of additional reasons and filling up the gaps in the reasoning, no award can be remitted to the Arbitrator, where there are no findings on the contentious issues in the award.
Under the guise of either additional reasons or filling up the gaps in the reasoning, the power conferred on the Court cannot be relegated to the Arbitrator, added the Bench.
Going by the background of the case, Appellant – I-pay (Claimant) entered into an agreement with respondent–ICICI Bank to provide technology and manage the operations and processing of the Smart Card based loyalty programs for HPCL. The appellant was required to develop various software application packages for management of Smart Card based loyalty programs akin to a Credit Card under the name “Drive Smart Software”. To further expand their customer base, the respondent requested the appellant to also develop a “Drive Track Fleet Card” management solution for the fleet industry and appointed the appellant for that purpose and it was named as “Drive Track Program”.
In view of sudden move by the Respondent in abruptly terminating the Service Provider Agreement, the Appellant suffered losses of over Rs.50 crores, on account of loss of jobs of its employees, losses on account of employee retrenchment compensation, etc. Accordingly, the appellant made a total claim of Rs.95 crores against the respondent.
In the Commercial Arbitration Petition filed u/s 34 of the Arbitration and Conciliation Act, 1996, the respondent challenged the award passed by the Sole Arbitrator, whereby it had directed the respondent to pay to the appellant, an amount of fifty crores together with interest @18% per annum as from the date of award till payment or realization. The Arbitrator also ordered the Respondent to pay to the claimant fifty thousand as cost on the application u/s 16.
After considering the arguments, the Top Court noted that Section 34(4) of the Act can be resorted to record reasons on the finding already given in the award or to fill up the gaps in the reasoning of the award.
Further, Section 34(4) of the Act itself makes it clear that it is the discretion vested with the Court for remitting the matter to the Arbitral Tribunal to give an opportunity to resume the proceedings or not, added the Court.
“The words “where it is appropriate” itself indicate that it is the discretion to be exercised by the Court, to remit the matter when requested by a party. When application is filed u/s 34(4) of the Act, the same is to be considered keeping in mind the grounds raised in the application u/s 34(1) of the Act by the party, who has questioned the award of the Arbitral Tribunal and the grounds raised in the application filed u/s 34(4) of the Act and the reply thereto”, observed the Top Court.
Speaking for the Bench, Justice Reddy observed that on the plea of ‘accord and satisfaction’ on further consideration of evidence, which is ignored earlier, even if the arbitral tribunal wants to consciously hold that there was ‘accord and satisfaction’ between the parties, it cannot do so by altering the award itself, which he has already passed.
Accordingly, the Division Bench dismissed the appeal and refused to interfere in the findings of the High Court.
Read Order: Priyanka v. Pardeep
Monika Rahar
Chandigarh, January 4, 2022: While dealing with a matrimonial dispute in appeal, the Punjab and Haryana High Court has observed that the mandatory cooling-off period of one year which is to be observed by a couple before presenting a divorce petition can be reduced or waived off if exceptional circumstances or depravity is shown along with the fact that the parties were able to resolve their disputes mutually.
While referring to Section 14 of the Hindu Marriage Act (the HMA), Division Bench of Justice Ritu Bahri and Justice Ashok Kumar Verma observed that the proviso to this section lays down that in case of exceptional hardship or exceptional depravity, if it appears to the Court, the time of one year can be reduced.
The marriage between the appellant and her husband was solemnized in the year, 2015, as per Hindu rites and rituals and two children were born out of it. Owing to their marital discord, they started living separately and eventually, in 2021 a joint petition under Section 13-B of the HMA for the grant of the divorce decree by mutual consent was filed. Along with the said petition, an application seeking condonation/ reduction of this mandatory one year period was sought. Both the petition and the application were rejected by the Family Court and hence, the wife impugned this decision before the High Court in the instant case.
The Division Bench elaborated upon the legal position governing the waiver/ condonation of this one year period, by referring to the judgments in Mandeep Kaur Bajwa vs. Chetanjeet Singh Randhawa, 2015 (40) RCR (Civil), and Amardeep Singh v. Harveen Kaur, Civil Appeal No.11158 of 2017, the collective import of which was that once exceptional hardship and depravity were established by the petitioner(s), the benefit of Section 14 (1) of the Act would accrue.
Applying the above mentioned findings to present case, the Court noted that the appellant and the respondent were young in age, they were living separately since 2021 and that they both had already received all the articles given by them at the time of marriage. They agreed not to claim anything with regard to the past or future maintenance, and the custody of their two children was mutually given to the father (the respondent).
“Since, the parties have already resolved their dispute, this is the sufficient ground to allow their application for waiving off the mandatory period of one year. Moreover, as per petition filed under Section 13-B of the Hindu Marriage Act (Annexure A-1), the mutual agreement has been duly complied with by the parties and nothing is due against each other”, said the Court.
Thus, the decision of the Family Court was set aside and the petition under Section 13-B along with the application for waiting off the mandatory period of living separately for one year was allowed by the High Court.
Read Order: Sonu v. State of Haryana
Monika Rahar
Chandigarh, January 4, 2022: The Punjab and Haryana High Court has enlarged one NDPS accused on a day-long interim bail to enable him to attend the wedding of his brother and sister.
The petitioner was an accused in an FIR registered under Section 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and he was kept in custody for the same. The said marriage was scheduled for January 4, 2022, for which he filed a petition in the High Court under Section 482 Cr.P.C. read with Section 439 Cr.P.C. seeking the grant of an interim regular bail to him for two weeks.
The petitioner’s counsel emphasized the fact that the petitioner was in custody since September 2021, and prayed for his release on bail for attending the wedding. The dates of the wedding were re-checked and confirmed by the State Counsel.
Directing the petitioner to be taken to the marriage venue, the Bench of Justice Suvir Sehgal stated, “Keeping in view the fact that the presence of the petitioner was necessary at the time of the marriage ceremonies of his brother and sister, the petition is disposed of with a direction that the petitioner be taken to the venue of the marriage ceremonies in the morning of 04.01.2022 under proper police custody as per rules and be brought back to the jail premises in the evening on the same day.”
The Jail Superintendent was also directed to make necessary arrangements in this regard.
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.
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.
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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)
Environment and Sustainable Development – A Balanced Approach - Nayan Chand Bihani
The debate between protection of the environment and sustainable development is an age old one and is growing in proportion with every passing day all over the world, in general and specifically with respect to developing countries like India, in particular.
The Stockholm Declaration on the Human Enviornment,1972 categorically stated that man is both the creator and the moulder of his environment, which gives him physical sustenance and affords him the opportunity of intellectual, moral, social and spiritual growth. In the long run and tortuous evolution of the human race on this planet a stage has been reached when through the rapid acceleration of science and technology man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspect of man’s environment, the natural and the man-made, are essential to his wellbeing and to the enjoyment of basic human rights-even the right to life itself. It also states that the protection and improvement of the human environment is a major issue which affects the wellbeing of peoples and economic development throughout the world, it is the urgent desire of the people of the whole world and the duty of all the Governments. The Declaration, in Principle 2, states that the natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural eco-systems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. It further, in Principle 8, states that economic and social development is essential for ensuing a favourable living and working environment for man and for creating conditions on earth that are necessary for the improvement of the quality of life.
A milestone in this field is the Rio Declaration on Environment and Development, 1992. It, interalia, states that human beings are at the centre of concern for sustainable development and that they are entitled to a healthy and productive life in harmony with nature. It also states that the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. It states that in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it and that to achieve sustainable development and a higher quality of life for their people, States should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies. It contemplates that the States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply. The Declaration states that in order to protect the environment, the precautionary approach shall be widely applied by the states according to their capabilities and that environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.
Initially, the trend was to use ‘Polluter Pays’ principle and punish the offending unit. Subsequently, vide judicial decisions, the principle of sustainable development was widely applied so as to balance the two principles.
The Polluter Pays principle talks about the liability of the polluter. With the increase in the industrial development what subsequently also increased is the waste emitted out of these industries and as a result of these wastes not only were the immediate surroundings adversely affected but also the environment at large. There is no specific definition of the Polluter Pays principle, rather it is a practice emphasising on the fact that one who pollutes the environment should be held accountable and responsible for the same with consequential steps to be taken. The principle not just focuses on punishing the polluter but its main criterion is to ensure that the polluted environment returns back to its original state. The reason behind it is to promote ‘Sustainable Development’. Thus it can be summed up that Polluter Pays principle is an essential element of sustainable development. Therefore, whosoever causes pollution to the environment will have to bear the cost of its management. The principle imposes a duty on every person to protect the natural environment from pollution or else he will be responsible for the cost of the damage caused to the environment. The main reason behind imposing a cost is two folds. Firstly, to refrain any person from polluting the environment and secondly, if in the case there is pollution then it is the polluter’s duty to undo the damage. Hence, both of the above ensures that there should be sustainable development. It is pertinent to mention that the Polluter Pays principle is not a new concept. It was first referred to in 1972 in a Council Recommendation on Guiding Principles Concerning the International Economic Aspects of Environmental Policies of the Organisation for Economic Co-operation and Development. The same is also enshrined in Principle 16 of the Rio Declaration, which states that ‘the polluter, in principle, bear the cost of pollution.’ The need of the hour is a demonstrable willingness to adhere to the essence of the principle in order to ensure that there is development, but not at the cost of causing environmental degradation.
The Hon’ble Supreme Court of India in the case of Indian Council for Enviro-legal Action vs Union of India reported in LQ/SC/1996/358, interalia, putthe absolute liability upon the polluter for the harm caused to the environment.
The Hon’ble Supreme Court of India in the case of Vellore Citizens Welfare Forum vs Union of India, reported in LQ/SC/1996/1368, interalia, accepted the Polluter Pays Principle as a part of the Article 21 of the Constitution of India and also emphasised Article 48A and Article 51A(g) of the Constitution of India.
The Hon’ble Supreme Court of India in the case of Amarnath Shrine reported in LQ/SC/2012/1121, has categorically stated the right to live with dignity, safety and in a clean environment.Article 21 of the Constitution of India, guaranteeing the right to life is ever widening and needs to maintain proper balance between socio-economic security and protection of the environment.
The Hon’ble Apex Court in the case of Bombay Dyeing and Manufacturing Co Ltd- vs – Bombay Environmental Action Group reported in LQ/SC/2006/206, interalia, states that the consideration of economic aspects by Courts cannot be one and it depends on the factors of each case. However, strict views ought to be taken in cases of town planning and user of urban land so as to balance the conflicting demands of economic development and a decent urban environment. Ecology is important but other factors are no less important and public interest will be a relevant factor.
The Hon’ble Supreme Court in the case of Dahanu Taluka Environment Protection Group –vs- Bombay Suburban Electricity Supply Company Ltd reported in LQ/SC/1991/157, has held that it is primary for the Government to consider importance of public projects for the betterment of the conditions of living of people on one hand and necessity for preservation of social and ecological balance, avoidance of deforestation and maintenance of purity of atmosphere and water from pollution and the role of the Courts is restricted to examine the whether the Government has taken into account all the relevant aspects and has not ignored any material condition.
The Hon’ble Supreme Court of India in the case of Narmada BachaoAndolan vs Union of India reported in LQ/SC/2000/1509, interalia, reiterated the Polluter Pay Principle.
A milestone case is that of M C Mehta vs Union of India reported in LQ/SC/2004/397, wherein the Hon’ble Supreme Court explained the Precautionary principle and the principle of Sustainable Development. It was, interalia, stated that the development needs have to be met but a balance has to be struck between such needs and the environment. The Hon’ble Supreme Court also reiterated similar views in a series of cases, some of which are stated hereinbelow;
LQ/SC/2007/1421
- M C Mehta vs Union of IndiaLQ/SC/2009/1231
- Tirpur Dyeing Factory Owners Association vs Noyyal River Ayacutdars Protection Association &Ors.LQ/SC/2009/1891
An interesting question came up before the Hon’ble Supreme Court with regard to the setting up of nuclear power plants with regard to the possibility of considerable economic development weighed against risk of feared radiological hazard. The Hon’ble Apex Court in the case of G.Sundarrajan –vs- Union of India reported in LQ/SC/2013/536, interalia, held that the Courts will be justified to look into the aspect as to the opinions of experts and the adequacy of safety measures and will be justified to look into the safety standards being followed by the Nuclear Power Plant.
The Hon’ble Supreme Court, in the case of Lal Bahadur vs State of UP reported in LQ/SC/2017/1384, interalia, emphasised the importance of striking a balance between the two principles.
An important development is the advent of the National Green Tribunal which has the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and relates to the Acts specified in Schedule I, namely the Water (Prevention and Control of Pollution) Act, 1974, the Water(Prevention and Control of Pollution) Cess Act, 1977, the Forest Conservation Act, 1980, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public Liability Insurance Act, 1991 and the Biological Diversity Act, 2002. The National Green Tribunal, since its inception, has been looking into the aspects of environmental pollution and the mitigation thereof.
It can thus be said that both the environment and development are essential in the modern world for the betterment and living standards of the people. However, rampant and unplanned development at the cost of the environment is not to be entertained and the Courts will keep a close watch into the aspect of sustainable development, interalia, based on the criteria and guidelines, as specified.
Nayan Chand Bihani is a practising advocate at Calcutta High Court. Mr. Bihani pursued his LL.B from the Calcutta University College of Law, Hazra Campus and was enrolled as an Advocate in December,1998. Mr. Bihani deals mainly with Writ petitions, specially in Environmental laws, Election laws, Educational laws, Municipal laws, Service laws and Public Interest Litigations. He also represents several authorities like the West Bengal State Election Commission, the West Bengal Pollution Control Board, the State of West Bengal, several Educational Institutions and Universities and several Municipalities and Municipal Corporations and the Odisha Pollution Control Board. He can be contacted at nayanbihani@gmail.com.
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