Read Judgment: Ravinder Kumar Dhariwal & Another vs. Union of India & Others
Pankaj Bajpai
New Delhi, December 20,2021: While stating that initiation of disciplinary proceedings against persons with mental disabilities is a facet of indirect discrimination, the Supreme Court has ruled that person with a disability is entitled to protection under the Rights of Persons with Disabilities Act 2016 (RPwD Act) as long as the disability was one of the factors for the discriminatory act.
Therefore, setting aside the disciplinary proceedings against Ravinder Kumar Dhariwal (Appellant) relating to the first enquiry, a Larger Bench of Justice Dr. D. Y. Chandrachud, Justice Surya Kant and Justice Vikram Nath held the appellant to be entitled to the protection of Section 20(4) of the RPwD Act in the event he is found unsuitable for his current employment duty.
The observation came in reference to a disciplinary proceeding initiated against an officer of the Central Reserve Police Force who had been diagnosed with 40 to 70 percent mental disability.
Going by the background of the case, the Appellant had joined the Central Reserve Police Force (CRPF) in November 2001. While serving in Ajmer, on April 18, 2010, the Deputy Inspector General of Police (DIGP) lodged a complaint against him alleging that the appellant had stated that he was obsessed with either killing or being killed and made a threat that he could shoot. This resulted in an enquiry against the appellant. Accordingly, six charges were framed against him highlighting his absence from morning marker, use of unparliamentary language, appearance in media without prior approval of the Department, not giving parade report, trying to intentionally cause an accident, and assaulting Deputy Commandant.
Pursuant to the allegations, appellant urged that he was suffering from obsessive-compulsive disorder and major depression. When he was referred to Dr. Ram Manohar Lohia Hospital in Delhi, he was categorized as permanently disabled, having 40 to 70% disability. Accordingly, the hospital declared the appellant unfit for duty.
After considering the submissions, the Apex Court said that mental disability of a person need not be the sole cause of the misconduct that led to the initiation of the disciplinary proceeding.
Any residual control that persons with mental disabilities have over their conduct merely diminishes the extent to which the disability contributed to the conduct, and therefore, the mental disability impairs the ability of persons to comply with workplace standards in comparison to their able-bodied counterparts, added the Court.
Highlighting that such persons suffer a disproportionate disadvantage due to the impairment and are more likely to be subjected to disciplinary proceedings, the Apex Court observed that the present case involves a complex question of balancing right of persons with mental disabilities against discrimination in the course of employment and the interest of the CRPF in ensuring a safe working environment and maintaining a combat force that can undertake security operations.
While quoting Tarunabh Khaitan’s Beyond Reasonableness – A Rigorous Standard of Review for Article 15 Infringement [50(2) Journal of the Indian Law Institute 177-208 (2008)], the Larger Bench said that the government’s right to exempt an establishment from the provisions of Section 20 of RPwD Act which deals with employment discrimination, is not absolute.
Therefore, in the light of Section 20(4) of the RPwD Act and the general guarantee of reasonable accommodation that accrues to persons with disabilities, the Larger Bench opined that the appellant is entitled to be reassigned to a suitable post having the same pay scale and benefits.
The CRPF may choose to assign him a post taking into consideration his current mental health condition, added the Bench.
The Top Court clarified that the suitability of the post is to examined based on an individualized assessment of the reasonable accommodation that the appellant needs, and the authorities can ensure that the post to which the appellant is accommodated does not entail handling or control over firearms or equipment which can pose a danger to himself or to others in or around the workplace.
“The appellant has been undergoing treatment for mental health disorders for a long time, since 2009. He has been diagnosed with 40 to 70 percent of permanent disability by a government hospital. While all CRPF personnel may be subject to disciplinary proceedings on charges of misconduct, the appellant is more vulnerable to engage in behavior that can be classified as misconduct because of his mental disability. He is at a disproportionate disadvantage of being subjected to such proceedings in comparison to his able-bodied counterparts”, observed the Court.
The Larger Bench pointed out that in the present case, the appellant is only required to prove that disability was one of the factors that led to the institution of disciplinary proceedings against him on the charge of misconduct.
A related enquiry then is to examine whether the conduct of the employee with a mental disability must be solely a consequence of their disability or it is sufficient to show that the disability was one of the factors for the conduct, added the Bench.
The Apex Court therefore concluded that the duty of providing reasonable accommodation to persons with disabilities is sacrosanct, and all possible alternatives must be considered before ordering dismissal from service.
Read Judgment: Brigade Enterprises Limited vs. Anil Kumar Virmani & Others
Pankaj Bajpai
New Delhi, December 20, 2021: The Supreme Court recently pointed out that the sine qua non for invoking Section 35(1)(c) of the Consumer Protection Act, 2019, is that all consumers on whose behalf or for whose benefit the provision is invoked, should have the same interest.
A Division Bench of Justice Hemant Gupta and Justice V. Ramasubramanian therefore observed that delay in handing over possession of the residential apartments might have given rise to a cause of action for the individual purchasers of flats to sue the builder.
But sameness of the cause of action is not equal to sameness of interest, added the Bench.
Since “sameness of interest” is the prerequisite for an application under Order I Rule 8, CPC r/w/s 35(1)(c) of the 2019 Act, it was necessary for Anil Kumar Virmani & Others (Respondents) to include in the consumer complaint, sufficient averments that would show sameness of interest.
The observation came pursuant to an appeal by Brigade Enterprises Limited (Appellant – Builder) challenging an order of the National Consumer Disputes Redressal Commission (NCDRC), passed u/s 35(1)(c) of the 2019 Act, allowing 91 purchasers of 51 apartments in the residential complex developed by them, to file a consumer complaint in a representative capacity, on behalf of and for the benefit of more than about 1000 purchasers.
The main grievance of the appellant is that out of total of 1134 apartments constructed and sold by them, the owners of merely 51 apartments have joined together and invoked the jurisdiction of the NCDRC and that such a miniscule percentage of consumers cannot seek to file the complaint in a representative capacity.
It was also contended by Appellant’s counsel that there was no commonality of interest or grievance, as some individual apartment owners have also invoked the jurisdiction of the Karnataka State Consumer Disputes Redressal Commission, seeking redressal of their separate and distinct grievances.
Opposing the same, the counsel for the Respondents urged that the respondents have the sameness of interest with the buyers of all the 1134 apartments, which is a sine qua non for maintaining an application u/s 35(1)(c) and that, therefore, the National Commission was right in allowing the application.
After considering the arguments & provisions, the Apex Court found that the delay on the part of the builder in handing over possession, was the primary ground on which compensation was sought by the respondents.
Noticing that none of the owners of the apartments in Amber block have joined in the filing of the complaint, coupled with the fact that there is no pleading with respect to the timeline of the project in respect of Amber block, the Top Court said that the consumer complaint filed by the respondents cannot be treated as one representing the owners of 386 apartments in Amber block.
The respondents ought to have either included as one of the complainants, the owner of one of the apartments in Amber block or at least made necessary averments in the pleading about the timeline for completion of the Amber block, to make the complaint, as one filed in a representative capacity on behalf of the owners of flats in all the three blocks, observed the Top Court.
Speaking for the Bench, Justice Ramasubramanian noted that Section 35(1)(c) enables one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, to file a complaint, on behalf of or for the benefit of all consumers so interested.
The existence of sameness of interest, has been questioned by the appellant on the ground that delay compensation as stipulated in the Agreements was offered to the purchasers and that some of them accepted the same without any demur or protest, while a few others have refused to accept, added the Division Bench.
Justice Ramasubramanian went on to note that it is unclear from the consumer complaint as to how (i)those who have accepted the compensation under protest; (ii) those who accepted without protest; and (iii)those who refused to accept the compensation, have the sameness of interest.
Since the period of delay in the completion of the project and the handing over of possession, does not appear to be uniform in all 1134 cases, the Division Bench opined that the respondents-complainants cannot project sameness of interest for the purchasers in whose case the period of delay was negligible and those in whose cases there was a huge delay.
The Apex Court at the same time, highlighted that there is no scope for the contention that wherever there are more consumers than one, they must only take recourse to Order I Rule 8 CPC, even if the complaint is not on behalf of or for the benefit of, all the consumers interested in the matter.
There may be cases where only “a few consumers” and not “numerous consumers” have the same interest, and there is nothing in the Act to prohibit these few consumers from joining together and filing a joint complaint, added the Court.
The Apex Court therefore concluded that that while the National Commission was wrong in this case, in the peculiar facts and circumstances in permitting an application u/s 35(1)(c) r/w Order I Rule 8 CPC, it does not mean that the complaint filed by the respondents itself is liable to be thrown out.
The Top Court therefore modified the order of the NCDRC to the effect that the complaint filed by the respondents shall be treated as a joint complaint filed on behalf of only the respondents herein and not as a complaint filed in a representative capacity on behalf of or for the benefit of all the owners of all the 1134 flats.
Read Judgment: Brijmani Devi vs. Pappu Kumar & Another
Pankaj Bajpai
New Delhi, December 20, 2021: The Supreme Court has opined that while elaborating reasons may not be assigned for grant of bail, at the same time an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail.
However, it would be only a non-speaking order which is an instance of violation of principles of natural justice, and in such a case the prosecution or the informant has a right to assail the order before a higher forum, added the Court.
A Larger Bench of Justice L. Nageswara Rao, Justice B.R. Gavai and Justice B.V. Nagarathna therefore observed that the Court considering an application for bail has to exercise discretion in a judicious manner and in accordance with the settled principles of law having regard to the crime alleged to be committed by the accused on the one hand and ensuring purity of the trial of the case on the other.
The observation came pursuant to an appeal by Brijmani Devi (Appellant and mother of the deceased Rupesh Kumar), who was stated to be an eyewitness to the killing of her son and also the person who lodged the FIR for offence of murder of her son u/s 302 r/w/s 34 of IPC and section 27 of the Arms Act against Pappu Kumar & Deepak Kumar (common respondent-accused, challenging the judgment, whereby the High Court had granted bail to the accused.
After considering the arguments and settled precedents, the Apex Court highlighted a Latin maxim “cessante ratione legis cessat ipsa lex” which means “reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself”.
Speaking for the Bench, Justice Nagarathna observed that it is not necessary for a Court to give elaborate reasons while granting bail particularly when the case is at the initial stage and the allegations of the offences by the accused would not have been crystalized as such.
There cannot be elaborate details recorded to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal while passing an order on an application for grant of bail, added the Larger Bench.
However, Justice Nagarathna clarified that a balance would have to be struck between the nature of the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused.
Hence, the Top Court allowed the appeal while concluding that the High Court had lost sight of the vital aspects of the case and in very cryptic orders had granted bail to the accused.
Read Judgment: Ngaitlang Dhar vs. Panna Pragati Infrastructure Private Limited & Others
Pankaj Bajpai
New Delhi, December 20,2021: The Supreme Court has reiterated that it is not open to the Adjudicating Authority (NCLT) or the Appellate Authority (NCLAT) to take into consideration any other factor other than the one specified in Section 30(2) or Section 61(3) of the Insolvency and Bankruptcy Code, 2016 (IBC).
The Division Bench of Justice L. Nageswara Rao and Justice B.R. Gavai therefore observed that opinion expressed by the Committee of Creditors (CoC) after due deliberations in the meetings through voting, as per voting shares, is the collective business decision and that the decision of the CoC’s ‘commercial wisdom’ is non-justiciable, except on limited grounds as are available for challenge u/s 30(2) or Section 61(3) of the IBC.
The background of the case is that, pursuant to an application filed u/s 7 of IBC for initiation of CIRP in respect of Meghalaya Infratech Ltd. (Corporate Debtor) by the Allahabad Bank, the NCLT admitted the petition and as such, appointed Amit Pareek as Resolution Professional (RP). Thereafter, Expression of Interest (EOI) was invited from the prospective Resolution Applicants and accordingly, Ngaitlang Dhar (Appellant), PPIPL (first Respondent), Abhishek Agarwal and Ashish Jaisasaria submitted their EOI.
Later, the CoC with a 100% voting share, approved the Resolution Plan of the appellant, which was further approved by the NCLT. This came to be challenged by the first Respondent seeking a direction to the RP to take on record its revised Resolution Plan. The same was rejected by the NCLT. However, the NCLAT allowed the company appeals filed by the first Respondent. Hence, present appeal before Apex Court.
After considering the arguments and evidences, the Apex Court found that the RP as well as the CoC had acted in a totally transparent manner, as an equal opportunity was accorded to all the prospective Resolution Applicants.
However, the first Respondent – PPIPL, without improving his bid amount, went on insisting for more time, which request was specifically rejected by the CoC, added the Court.
Speaking for the Bench, Justice Gavai noted that ‘commercial wisdom’ of the CoC has been given paramount status without any judicial intervention, for ensuring completion of the processes within the timelines prescribed by the IBC.
“The CoC was facing the timeline, which was to end on 24th February, 2020, before which it had to finalise its decision. In these circumstances, it cannot be said that the decision of the CoC, to not grant any further time to PPIPL for submission of its revised bid and to finalise the Resolution Plan on 12th February, 2020 itself, can be said to be falling in the category of the term ‘material irregularity”, observed the Division Bench.
Justice Gavai however clarified that u/s 61(3)(ii) of the IBC, an appeal would be tenable if there has been material irregularity in exercise of the powers by the RP during the corporate insolvency resolution period.
Therefore, while concluding that the dominant purpose of the IBC is revival of the Corporate Debtor and making it an ongoing concern, the Apex Court observed that in the present case, the said purpose is already achieved, inasmuch as all the dues of the financial creditors, i.e., the Allahabad Bank and the Corporation bank, have already been paid, and the Corporate Debtor, in respect of which CIRP was initiated, is now an ongoing concern.
Read Judgment: Pani Ram vs. Union of India & Others
Pankaj Bajpai
New Delhi, December 20, 2021: The Supreme Court has ruled that an individual who is invalided out of service on account of disability, which is attributable or aggravated by Military Service in non-battle casualty and is assessed 20% or more, would be entitled to disability pension.
The Union of India (Respondents) are not in a position to point out any rules or regulations, which can be said to be inconsistent with Regulation No. 292 or 173, neither has any other regulation been pointed out, which deals with the terms and conditions of service of Ecological Task Force (ETF), added the Court.
A Division Bench of Justice L. Nageswara Rao and Justice B.R. Gavai therefore observed that ETF is established as an additional company for 130 Infantry Battalion of Territorial Army, and hence, officers or enrolled persons working in the Territorial Army are entitled to disability pension under Regulation No. 173 read with Regulation No. 292 of Pension Regulations for the Army, 1961.
The observation came pursuant to an appeal challenging the order passed by the Armed Forces Tribunal, Regional Bench, Lucknow (AFT), whereby Pani Ram’s (Appellant) claim for grant of disability pension came to be dismissed.
The Apex Court found that it was the specific case of Respondent that separate terms and conditions were provided by it through the communication dated March 31, 2008, which provided that the members of ETF would not be entitled for disability pension.
As per Chapter 5 of the Pension Regulations for the Army, 1961, the grant of pensionary awards to the members of the Territorial Army shall be governed by the same rules and regulations as are applicable to the corresponding persons of the Army except where they are inconsistent with the provisions of regulations in the said chapter, added the Court.
Speaking for the Bench, Justice Gavai observed that when the appellant is enrolled as a member of ETF which is a company for 130 Infantry Battalion (Territorial Army), there is no reason as to why the appellant was denied the disability pension.
Specifically so, when the Medical Board and COI have found that the injury sustained by the appellant was attributable to the Military Service and it was not due to his own negligence, added the Division Bench.
Justice Gavai observed that in case of conflict between what is stated in internal communication between the two organs of the State and the Statutory Rules and Regulations, it is needless to state that the Statutory Rules and Regulations would prevail.
In that view of the matter, the AFT was not justified in rejecting the claim of the appellant, concluded the Bench.
The Apex Court therefore directed the respondents to grant disability pension to the appellant in accordance with the rules and regulations as are applicable to the Members of the Territorial Army with effect from January 1, 2012.
Read Order: Hardyal Singh and another v. Financial Commissioner Punjab and others
Tulip Kanth
Chandigarh, December 17,2021:In a case pertaining to the Punjab Land Revenue Act, 1887, the Punjab and Haryana High Court has opined that the litigation was initiated with the intention of extracting a pound of flesh.
Under challenge in this writ petition was the sanad takseem issued by the order dated August 14,2013 as well as order dated February 7,2018 passed by the Financial Commissioner dismissing the revision against the said sanad.
The factual background of this case is that the petitioners are sons of Avtar Singh and co-sharer in a certain Khewat measuring 84 Bigha 14 Biswa situated in the revenue estate of village Jolliya, Sub Tehsil Bhawanigarh, District Sangrur. The third respondent filed an application dated June 19,2012 for partition of the joint khewat. Mode of partition was approved and the partition was finalized resulting in issuance of sanad. As mentioned, challenge thereto had failed.
Additional relevant facts were that Avtar Singh (father of the petitioners) had also challenged the sanad by way of revision petition which was dismissed on the ground that he had no locus to challenge the sanad as he had already sold his share in the joint khewat. Uncle of the petitioners namely Baljinder Singh son of Kishan Singh had also challenged the sanad but his revision petition was dismissed as withdrawn as there was a settlement between the parties. The revision petition of the petitioners was filed in the year 2016.
The Bench of Justice Sudhir Mittal observed that the petitioners stopped appearing before the Assistant Collector IInd Grade by choice. They did not take interest in the partition proceedings and did not object to the clubbing of the partition applications nor were any objections raised against the nakshas. Thus, they were estopped from raising objections to the sanad.
The Court stated that their conduct left no doubt that they had waived their rights to challenge the alleged illegalities committed by the Assistant Collector IInd Grade.
According to the Bench, the facts also showed that the litigation was malafide. The father did not need to challenge the sanad after he had sold his share. Yet, he did so and the intent could only have been to delay transfer of possession. The uncle challenged the sanad only to withdraw the same on reaching a settlement. Four months later the petitioners filed a revision petition raising objections which were never raised during the course of partition proceedings.It requires no great erudition to conclude that the litigation was initiated with the intention of extracting a pound of flesh, added the Court.
Opining that the petitioners had disentitled themselves from consideration of the case on merits, the High Court dismissed the writ petition.
Read Order:Harpreet Singh and Ors v. State of Punjab & others
Tulip Kanth
Chandigarh, December 17,2021:While dismissing petitions filed for the grant of emergency parole, the Punjab & Haryana High Court has recently held that in order to maintain the balance in overall international harmony and to honour the bilateral agreement/treaty and to avoid negativity in the relationship between the countries,the Court should refrain from passing any such order which would result into making any dent in the harmonious relationship between the two countries.
The Bench of Justice Sant Parkash has observed that the limited role of a State authority/designated officer is to receive and hold in custody under Section 13 of the Repatriation of Prisoners Act, 2003.
The High Court was disposing three criminal writ petitions, one of which had been preferred under Article 226 of the Constitution of India read with Section 3(1)(c) & (d) of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 and Article 10 of the Agreement between the Government of United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of India and the Transfer of Sentenced Persons (IndoUK TSP Agreement) for issuance of a writ in the nature of mandamus directing the respondents to release the petitioner for emergency parole.
The question in all the three petitions was whether the benefit of parole would be available to the petitioners convicted by the courts outside the country and later on transferred to India to serve the remaining sentence as per Indo-UK Agreement.
The Bench was of the opinion that Article 10 of Indo-UK TSP Agreement would make it evidently clear that either of the contracting States are empowered to grant pardon, amnesty or commutation of sentence in accordance with its Constitution or other laws.
The words ‘parole’ or ‘furlough‘ have been purposely and intentionally omitted from the said clause because in the eyes of law as prevalent in UK, the temporary release of prisoners on furlough or parole should be in consonance with the provisions of the law prevalent in the transferring country. According to the law of the transferring country, the said concession should not be extended to prisoners until they move to open prison conditions, which happens approximately 2 years prior to the minimum term’s expiry date, added the Court.
Justice Pakash stated that the petitioners had been transferred to India after having been convicted by the courts in UK under the Indo-UK TSP Agreement and by way of moving the present petitions, they could not be allowed to blow hot and cold in same breath as they came to India under the Treaty and now they are impressing upon that law of prison in India (1962 Act) should be made applicable to them.
The Court went on to note that it was clear from the provisions of 1962 Act as also Indo-UK TSP Agreement that parole cases of the petitioners repatriated from UK and other foreign countries are to be considered as per the provisions of Agreement of Repatriation arrived at between the concerned foreign country and Government of India. Thus, irresistible and unerring conclusion could be drawn that parole cases of the petitioners were to be governed by the terms & conditions of the Indo-UK Agreement.
Adding to this, the Bench mentioned that as per the sentence order, the petitioners could be released only after undergoing minimum prescribed sentences. Further, as per Article 8 of Indo-UK TSP Agreement, the receiving State is bound by the legal nature and duration of the sentence as determined by the transferring State. The State authorities are merely the custodian of such a convict, he being located/placed in a jail within the territorial jurisdiction of the State of Punjab. The limited role of a State authority/designated officer is to receive and hold in custody under Section 13 of the 2003 Act.
“The communication dated 04.08.2020, placed on file as Annexure A-I, relates to Transfer of Sentenced Persons (TSP) Agreement between India and Sri Lanka, to serve the remainder of sentence in Indian prison(s) with a specific recital that ―the enforcement of sentence shall be governed by the law of the receiving State i.e. India‖. But this clause cannot be made application in the case of bilateral agreement between UK and India. It is evidently clear from the reply filed on behalf of Union of India that since agreement on transfer of sentenced persons is entered into at the level of Union Government with a foreign country, appropriate authority in all cases would be the Union Government and the rules of State Governments would not apply to persons transferred under the Union of India agreement as it is the Central Government who has to honour and take care of the sensitivities involved in the bilateral relations with the foreign country”, said the Bench.
The High Court also put forth the facet pertaining to the reply filed on behalf of the Government of India by way of an affidavit dated December 9,2021, sworn by Arun Sobti, Deputy Secretary to the Government of India, Women Safty Division, Ministry of Home Affairs, Major Dhyan Chand National Stadium, India Gate, New Delhi, the Government of UK has placed on hold the requests of transfer of prisoners to India with regard to the persons undergoing imprisonment there.
Therefore, taking into consideration the totality of circumstances and finding no merit in all the three petitions, the Bench dismissed the same and held that provisions of Sections 3 & 4 of the 1962 Act would not be applicable in the instant petitions.
Read Judgment: Jaikam Khan vs. State of Uttar Pradesh
PankaJ Bajpai
New Delhi, December 17, 2021: The Supreme Court has opined that the Trial court and the High Court are expected to exercise a greater degree of scrutiny, care and circumspection while directing the accused to be hanged till death.
A Larger Bench of Justice L. Nageswara Rao, Justice B.V Nagarathna and Justice B.R. Gavai observed that in case of direct evidence and the ocular testimony of the eyewitness being found to be trustworthy, reliable and cogent, it will not be necessary for the prosecution to prove the motive for the crime.
However, the testimony of the eyewitnesses could not be said to be wholly reliable, the motive aspect would be a relevant factor, added the Bench.
The background of the case is that, Jaikam Khan (Appellant – third accused) is a cousin of Momin Khan (first accused), whereas Sajid Khan (third accused) is his son. Owing to a property dispute between them, Momin Khan was accused of murdering his parents, brother and other relatives, and accordingly, all the three accused were sentenced to death by the Trial Court. On appeal, the High Court confirmed the death sentence. However, the death sentence awarded to the wife of Momin Khan was removed by the High Court.
Challenging the conviction and death sentence, the counsel for the appellant urged that the entire case is based on the ocular testimony of interested witnesses. It was further contended that the recovery of clothes and weapon is totally farcical and the evidence of related witnesses will have to be scrutinized with greater care and circumspection. It was also pleaded that order of conviction on sole testimony in absence of any corroboration, is not justified.
After considering the submissions and evidences, the Larger Bench opined that merely because the witnesses are interested and related witnesses, it cannot be a ground to disbelieve their testimony.
However, the testimony of such witnesses has to be scrutinized with due care and caution. Upon scrutiny of the evidence of such witnesses, if the Court is satisfied that the evidence is creditworthy, then there is no bar on the court in relying on such evidence, added the Bench.
“As per the testimonies of P.W.1Ali Sher Khan and P.W.2Jaan Mohammad, firstly Mausam Khan was assaulted and done away with in veranda, whereas deceased Shaukeen Khan was done away with in the court yard. Deceased Muskan, Asgari and Samad were assaulted in the rooms, which are in the middle portion of the house. According to these witnesses, Shanno Begam was assaulted upstairs. If the version of these two witnesses is compared with the siteplans, then the position that emerges would reveal that P.W.1Ali Sher Khan, at the most, could have witnessed the assault on deceased Shaukeen Khan, whereas P.W.2Jaan Mohammad could have witnessed the assault on deceased Mausam Khan and deceased Shaukeen Khan. However, since from the perusal of the first siteplan (Exhibit Ka51), it could be seen that the deadbodies of deceased Muskan, Samad, and Asgari were inside the house, and the deadbody of deceased Shanno Begam was upstairs, it is difficult to believe that these two witnesses could have also seen the accused assaulting Shanno Begam, Muskan, Asgari and Samad. It is further to be noted that P.W.9Brahmesh Kumar Yadav in his cross examination has admitted that P.W.1Ali Sher Khan and P.W.2Jaan Mohammad had not told him about their hideouts and that is why it was not mentioned in the site plan”, observed the Bench.
The Larger Bench is therefore of the view that these two witnesses cannot be considered to be wholly reliable to base an order of conviction solely on their testimonies.
The Top Court found that according to the prosecution witnesses, a large number of villagers had gathered at the spot after the incident. However, none of the independent witnesses have been examined by the prosecution.
Since the witnesses examined on behalf of the prosecution are interested witnesses, non-examination of independent witnesses, though available, would make the prosecution version doubtful, added the Court.
Speaking for the Bench, Justice Gavai is at pain to observe the manner in which the present case has been dealt with by the trial court as well as by the High Court, particularly, when the trial court awarded death penalty to the accused and the High Court confirmed it.
Hence, the Apex Court allowed the appeal and directed Momin Khan, Jaikam Khan and Sajid Khan to be released forthwith, if not required in any other offence.
Read Judgment: Anita Rani vs. Ashok Kumar & Others
Pankaj Bajpai
New Delhi, December 17, 2021: The Supreme Court has opined that when payment of a certain amount of money and the repayment of only a portion of the same are admitted, the party pleading that such a part repayment was in full and final settlement, has a huge burden cast upon him to show that there was a settlement.
A Division Bench of Justice Hemant Gupta and Justice V. Ramasubramanian therefore observed that oral evidence of the so called third party mediators, is not sufficient to establish full and final settlement, in cases of this nature, where all transactions have happened only through banking channels and the defendants claimed that there were business transactions.
The background of the case was that, Anita Rani (Appellant) filed two money suits against Ashok Kumar & Others (Respondents) for recovery of money, alleging that the respondents borrowed a sum of Rs. 10,50,000/- but repaid only half amount. The appellant also alleged that the respondent lured her and her husband into his real estate business and got their signature, pursuant to which the appellant found that an amount of Rs. 54,50,000/- was withdrawn from her bank account without her knowledge. Accordingly, an FIR was lodged against Respondents u/s 420, 467, 468 and 471 r/w/s 120-B of the IPC. However, later, the respondents were granted anticipatory bail.
The respondents admitted the receipt of the money but pleaded that they had made full and final settlement. Moreover, on the allegation of withdrawal of sum from bank account, the respondents pleaded that the money was received for business transactions, out of love and affection.
When the matter reached High Court, the Appellant was directed to refund the money that the respondents had paid in the proceedings for grant of anticipatory bail.
After considering the arguments, the Apex Court found that the case of the appellant in the first suit was one of lending and nonpayment, whereas, the defence set up by the respondents was one of payment of a lesser amount (than the original amount), in full and final settlement.
A party who admits receipt of certain amount of money on a particular date and pleads discharge by way of a full and final settlement at a latter date, is the one on whom the onus lies, which onus was not discharged by the respondents in the first suit and, hence, the plaintiff was entitled to succeed in the first suit, which aspect is completely overlooked by the High Court, added the Top Court.
Coming to the second suit, the Apex Court noted that case of the appellant was that various amounts of money were either withdrawn from or transferred out of their accounts, by the defendants unauthorizedly and that the amounts so taken away totaled to Rs.54,50,000/-.
The defence of the respondents was that the amounts represented authorized payments for the purchase and sale of properties in a real estate business and that out of those amounts, a sum of Rs.30,00,000/ was treated as a payment made out of love and affection, found the Apex Court.
Speaking for the Bench, Justice Ramasubramanian observed that in a suit for recovery of money, a defendant admitting the receipt of money but pleading that the same was a gratuitous payment, is obliged to prove that it was a gratuitous payment.
Once the plea of gratuitous payment falls to the ground, Section 70 of the Indian Contract Act, 1872 will come into play, added the Bench.
Justice Subramanian went on to observe that as the respondents have admitted that the moneys as claimed by the appellant were either paid by the plaintiff or flown out of the plaintiff’s account into their own account, therefore, the onus was actually on the respondents to prove either a discharge by way of settlement of accounts or the gratuitous nature of the payment.
Since, the respondents miserably failed to discharge the onus of proof so cast upon them, hence, the Apex Court allowed the appeal and held that the appellant is entitled to a decree despite a few discrepancies in her evidence, especially when the discrepancies have no bearing upon the payment/flow of monies from the plaintiff to the defendants.
Read Judgment: The Secretary to Govt. Department of Education (primary) & Others vs. Bheemesh Alias Bheemappa
Pankaj Bajpai
New Delhi, December 17,2021: The Supreme Court has ruled that appointment on compassionate grounds is not automatic, but subject to strict scrutiny of various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and the avocation of the other members of the family.
Therefore, no one can claim to have a vested right for appointment on compassionate grounds, added the Court.
Noticing that the employee died on December 8, 2010 and the amendment to the Karnataka Civil Services (Appointment on Compassionate Grounds) (7th amendment) Rules, 2012, was notified on July 11, 2012, a Division Bench of Justice Hemant Gupta and Justice V. Ramasubramanian therefore observed that merely because the application for appointment was taken up for consideration after the issue of the amendment, Bheemesh (Respondent) could not have sought the benefit of the amendment.
The interpretation as to the applicability of a modified Scheme should depend only upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor, added the Bench.
The observation came pursuant to appeal preferred by the State Government challenging the order passed by Karnataka State Administrative Tribunal which was also confirmed by the High Court, directing them to consider the case of Respondent for appointment on compassionate grounds.
The background of the case is that, the Respondent’s sister who was employed as Assistant Teacher in a Government School, died in harness, leaving behind her surviving mother, two brothers and two sisters. Claiming that the deceased was unmarried and that the mother, two brothers and two sisters were entirely dependent on her income, the respondent sought appointment on compassionate grounds. This claim was rejected by the competent authority on the ground that the amendment made to the Karnataka Civil Services (Appointment on Compassionate Grounds) (7th amendment) Rules, 2012 extending the benefit of compassionate appointment to the unmarried dependant brother of an unmarried female employee, will not be applicable to the case of the respondent.
The Karnataka State Administrative Tribunal however allowed the application on the ground that the amendment made to the 2012 Rules would apply retrospectively covering the case of the respondent. The petition before the High Court by State also came to be dismissed. Hence, present appeal by the State.
After considering the arguments and submissions, the Top Court reiterated that every appointment to a post or service must be made strictly by adhering to the mandate of Articles 14 and 16 of the Constitution.
Appointment on compassionate grounds, is an exception to the regular mode of recruitment, as it is intended to provide succor to the family of the deceased Government servant, which is thrown out of gear both financially and otherwise, due to the sudden death of the Government servant in harness, added the Court.
Speaking for the Bench, Justice Ramasubramanian admitted that the appointment on compassionate grounds in the State of Karnataka is governed by a set of Rules known as Karnataka Civil Services (Appointment on Compassionate grounds) Rules, 1996, issued in exercise of the powers conferred by Section 3(1) read with Section 8 of the Karnataka State Civil Services Act, 1978.
The Rules as they stood, on the date on which the sister of the respondent died in harness, did not include an unmarried brother, within the definition of the expression “dependant of a deceased Government servant” under Rule 2(1)(a) of the said Rules vis-a-vis a deceased female unmarried Government servant, noted the Division Bench.
However, Justice Ramasubramanian observed that it was only by way of an amendment proposed under a draft Notification dated June 20, 2012 which was given effect under the final Notification bearing No. DPAR 55 SCA 2012, Bangalore dated July 11, 2012 that an unmarried brother of a deceased female unmarried Government servant was included within the definition.
There is no dispute about the fact that the sister of the respondent died as an unmarried female Government servant, but on Dec 08, 2010, before the amendment was made to the Rules, added the Bench.
Hence, the Apex Court dismissed the application of the respondent for compassionate appointment.
Read Judgment: Bordeuri Samaj of Sri Sri Maa Kamakhya vs. Riju Prasad Sarma & Others
Pankaj Bajpai
New Delhi, December 17, 2021: While stating that no case was made out to take action under Article 129 of the Constitution r/w the Contempt of Courts Act, 1971, the Supreme Court has opined that the contempt jurisdiction is always discretionary which should be exercised sparingly and with circumspection.
While accepting that the report of the Additional Director General of Police, CID, prima facie, establishes misappropriation of funds by the Debutter Board, a Division Bench of Justice Ajay Rastogi and Justice Abhay S. Oka observed that even in the Judgment dated July 7, 2015, there was no direction issued to pay the money which had been allegedly misappropriated.
The reason was that the prima facie observation about misappropriation was based on the view expressed in the report, however, what was observed in the said report was not conclusive, added the Bench.
The observation came pursuant to a petition by Bordeuri Samaj of Sri Sri Maa Kamakhya (Petitioner) invoking jurisdiction of this Court under Article 129 of the Constitution of India r/w the Contempt of Courts Act, 1971 for initiating action against Riju Prasad Sarma & Others (Respondents) for committing breaches of the directions contained in the Judgment of this Court dated July 7, 2015 in the case of Riju Prasad Sarma and Others v. State of Assam and Others.
Going by the background of the case, the case made out in the contempt petitions is that the petitioner is the elected Dolois representing members of Bordeuri Samaj of Kamakhya Devalaya, and it is the case of petitioner that right of Bordeuri Samaj to manage religious affairs of Kamakhya Temple has been recognized from time immemorial. It is pointed out that in the year 1998, a self-styled body in the name and style of Kamakhya Debutter Board was formed by Respondents and that they have illegally usurped the power that has been historically vested in the office of Dolois.
The first grievance in the contempt petitions is that the possession of the immovable properties has not been handed over to Bordeuri Samaj by the Respondents. Similarly, the second grievance is that various movable properties of the Temple, have not been handed over to the petitioner. The third grievance is that though as per the statement of accounts submitted on behalf of Debutter Board, it was holding surplus cash amount of not less than Rupees eleven crores, which belonged to the Deity, it has not been paid. Lastly, a grievance is made that books of accounts pertaining to the Temple have not been handed over to the petitioner.
After considering the submissions and the circumstances, the Top Court found from the perusal of the order dated January 31, 2020 that there was no opportunity granted to the parties to file any objections to the report.
It cannot be said that as the respondents did not object to the report, they have accepted the liability to pay the amount of Rs.7,62,03,498/-, and moreover, the observations in the report cannot be treated as concluded findings, added the Court.
The Apex Court went on to observe that, even assuming that the Judgment dated July 7, 2015 includes a direction to pay money, there is no adjudication made to decide what the extent of liability is.
“Perusal of the Judgment shows that there is no discussion therein about the liability of the respondent nos.1 to 4 to pay any specific amount. Paragraph 73 refers to premises and other properties of Kamakhya Temple. However, there is no finding recorded that any particular amount is payable by the respondent nos.1 to 4 to the petitioner”, observed the Court.
Hence, the Division Bench disposed of the contempt petitions.
Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
Right to Disclosure – Importance & Challenges in Criminal Justice System – By Manu Sharma
Personal liberty is the most cherished value of human life which thrives on the anvil of Articles 14 and 21 of the Constitution of India (“the Constitution”). Once a person is named an accused, he faces the spectre of deprivation of his personal liberty and criminal trial. This threat is balanced by Constitutional safeguards which mandate adherence to the rule of law by the investigating agencies as well as the Court. Thus, any procedure which seeks to impinge on personal liberty must also be fair and reasonable. The right to life and personal liberty enshrined under article 21 of the Constitution, expanded in scope post Maneka Gandhi[1], yields the right to a fair trial and fair investigation. Fairness demands disclosure of anything relevant that may be of benefit to an accused. Further, the all-pervading principles of natural justice envisage the right to a fair hearing, which entails the right to a full defence. The right to a fair defence stems from full disclosure. Therefore, the right of an accused to disclosure emanates from this Constitutional philosophy embellished by the principles of natural justice and is codified under the Code of Criminal Procedure, 1973 (“Code”).
Under English jurisprudence, the duty of disclosure is delineated in the Criminal Procedure and Investigations Act, 1996, which provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, except if such disclosure undermines public interest.[2] Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.[3] The duty of disclosure under common law contemplates disclosure of anything which might assist the defence[4], even if such material was not to be used as evidence[5]. Under Indian criminal jurisprudence, which has borrowed liberally from common law, the duty of disclosure is embodied in sections 170(2), 173, 207 and 208 of the Code, which entail the forwarding of material to the Court and supply of copies thereof to the accused, subject to statutory exceptions.
II. Challenges in Enforcement
The right to disclosure is a salient feature of criminal justice, but its provenance and significance appear to be lost on the Indian criminal justice system. The woes of investigative bias and prosecutorial misconduct threaten to render this right otiose. That is not to say that the right of an accused to disclosure is indefeasible, as certain exceptions are cast in the Code itself, chief among them being public interest immunity under section 173(6). However, it is the mischief of the concept of ‘relied upon’ emerging from section 173(5) of the Code, which is wreaking havoc on the right to disclosure and is the central focus of this article. The rampant misuse of the words “on which the prosecution proposes to rely’ appearing in section 173(5) of the Code, to suppress material favourable to the accused or unfavourable to the prosecution in the garb of ‘un-relied documents’ has clogged criminal courts with avoidable litigation at the very nascent stage of supply of copies of documents under section 207 of the Code. The erosion of the right of an accused to disclosure through such subterfuge is exacerbated by the limited and restrictive validation of this right by criminal Courts. The dominant issues highlighted in the article, which stifle the right to disclosure are; tainted investigation, unscrupulous withholding of material beneficial to the accused by the prosecution, narrow interpretation by Courts of section 207 of the Code, and denial of the right to an accused to bring material on record in the pre-charge stage.
A. Tainted Investigation
Fair investigation is concomitant to the preservation of the right to fair disclosure and fair trial. It envisages collection of all material, irrespective of its inculpatory or exculpatory nature. However, investigation is often vitiated by the tendencies of overzealous investigating officers who detract from the ultimate objective of unearthing truth, with the aim of establishing guilt. Such proclivities result in collecting only incriminating material during investigation or ignoring the material favourable to the accused. This leads to suppression of material and scuttles the right of the accused to disclosure at the very inception. A tainted investigation leads to miscarriage of justice. Fortunately, the Courts are not bereft of power to supervise investigation and ensure that the right of an accused to fair disclosure remains protected. The Magistrate is conferred with wide amplitude of powers under section 156(3) of the Code to monitor investigation, and inheres all such powers which are incidental or implied to ensure proper investigation. This power can be exercised suo moto by the Magistrate at all stages of a criminal proceeding prior to the commencement of trial, so that an innocent person is not wrongly arraigned or a prima facie guilty person is not left out.[6]
B. Suppression of Material
Indian courts commonly witness that the prosecution is partisan while conducting the trial and is invariably driven by the lust for concluding in conviction. Such predisposition impels the prosecution to take advantage by selectively picking up words from the Code and excluding material favouring the accused or negating the prosecution case, with the aid of the concept of ‘relied upon’ within section 173(5) of the Code. However, the power of the prosecution to withhold material is not unbridled as the Constitutional mandate and statutory rights given to an accused place an implied obligation on the prosecution to make fair disclosure.[7] If the prosecution withholds vital evidence from the Court, it is liable to adverse inference flowing from section 114 of the Indian Evidence Act, 1872 (“Evidence Act). The prosecutor is expected to be guided by the Bar Council of India Rules which prescribe that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishment of the innocence of the accused shall be scrupulously avoided. [8]
C. Scope of S. 207
The scope of disclosure under section 207 has been the subject of fierce challenge in Indian Courts on account of the prosecution selectively supplying documents under the garb of ‘relied upon’ documents, to the prejudice of the defence of an accused. The earlier judicial trend had been to limit the supply of documents under section 207 of the Code to only those documents which were proposed to be relied upon by the prosecution. This view acquiesced the exclusion of documents which were seized during investigation, but not filed before the Court along with the charge sheet, rendering the right to disclosure a farce. This restrictive sweep fails to reconcile with the objective of a fair trial viz. discovery of truth. The scheme of the code discloses that Courts have been vested with extensive powers inter alia under sections 91, 156(3) and 311 to elicit the truth. Towards the same end, Courts are also empowered under Section 165 of the Evidence Act. Thus, the principle of harmonious construction warrants a more purposive interpretation of section 207 of the code. The Hon’ble Supreme Court expounded on the scope of Section 207 of the Code in the case of Manu Sharma[9] and held that documents submitted to the Magistrate under section 173(5) would deem to include the documents which have to be sent to the magistrate during the course of investigation under section 170(2). A document which has been obtained bona fide and has a bearing on the case of the prosecution should be disclosed to the accused and furnished to him to enable him to prepare a fair defence, particularly when non production or disclosure would affect administration of justice or prejudice the defence of the accused. It is not for the prosecution or the court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop on reasonable basis.[10] Manu Sharma’s [supra] case has been relied upon in Sasikala [11] wherein it was held that the Court must concede a right to the accused to have access to the documents which were forwarded to the Court but not exhibited by the prosecution as they favoured the accused. These judgments seem more in consonance with the true spirit of fair disclosure and fair trial. However, despite such clear statements of law, courts are grappling with the judicial propensity of deviating from this expansive interpretation and regressing to the concept of relied upon. The same is evident from a recent pronouncement of the Delhi High Court where the ratios laid down in Manu Sharma & Sasikala [supra] were not followed by erroneously distinguishing from those cases.[12] Such “per incuriam” aberrations by High Court not only undermine the supremacy of the Apex Court, but also adversely impact the functioning of the district courts over which they exercise supervisory jurisdiction. Hopefully in future Judges shall be more circumspect and strictly follow the law declared by the Apex Court.
D. Pre-Charge Embargo
Another obstacle encountered in the enforcement of the right to disclosure is the earlier judicial approach to stave off production or consideration of any additional documents not filed alongwith the charge sheet at the pre-charge stage, as the right to file such material was available to the accused only upon the commencement of trial after framing of charge.[13] At the pre-charge stage, Court could not direct the prosecution to furnish copies of other documents[14] It was for the accused to do so during trial or at the time of entering his defence. However, the evolution of law has seen that at the stage of framing charge, Courts can rely upon the material which has been withheld by the prosecutor, even if such material is not part of the charge sheet, but is of such sterling quality demolishing the case of the prosecution.[15] Courts are not handicapped to consider relevant material at the stage of framing charge, which is not relied upon by the prosecution. It is no argument that the accused can ask for the documents withheld at the time of entering his defence.[16] The framing of charge is a serious matter in a criminal trial as it ordains an accused to face a long and arduous trial affecting his liberty. Therefore, the Court must have all relevant material before the stage of framing charge to ascertain if grave suspicion is made out or not. Full disclosure at the stage of section 207 of the code, which immediately precedes discharging or charging an accused, enables an accused to seek a discharge, if the documents, including those not relied upon by the prosecution, create an equally possible view in favour of the accused.[17] On the other hand, delaying the reception of documents postpones the vindication of the accused in an unworthy trial and causes injustice by subjecting him to the trauma of trial. There is no gainsaying that justice delayed is justice denied, therefore, such an approach ought not to receive judicial consent. A timely discharge also travels a long way in saving precious time of the judiciary, which is already overburdened by the burgeoning pendency of cases. Thus, delayed or piecemeal disclosure not only prejudices the defence of the accused, but also protracts the trial and occasions travesty of justice.
III. Duties of the stakeholders in criminal justice system
The foregoing analysis reveals that participation of the investigating agency, the prosecution and the Court is inextricably linked to the enforcement of the right to disclosure. The duties cast on these three stakeholders in the criminal justice system, are critical to the protection of this right. It is incumbent upon the investigating agencies to investigate cases fairly and to place on record all the material irrespective of its implication on the case of prosecution case. Investigation must be carried out with equal alacrity and fairness irrespective of status of accused or complainant.[18] An onerous duty is cast on the prosecution as an independent statutory officer, to conduct the trial with the objective of determination of truth and to ensure that material favourable to the defence is supplied to the accused. Ultimately, it is the overarching duty of the Court to ensure a fair trial towards the administration of justice for all parties. The principles of fair trial require the Court to strike a delicate balance between competing interests in a system of adversarial advocacy. Therefore, the court ought to exercise its power under section 156(3) of the Code to monitor investigation and ensure that all material, including that which enures to the benefit of the accused, is brought on record. Even at the stage of supply of copies of police report and documents under section 207 of the Code, it is the duty of the Court to give effect to the law laid down by the Hon’ble Supreme Court in Manu Sharma (supra) and Sasikala (supra), and ensure that all such material is supplied to the accused irrespective of whether it is “relied upon” by the prosecution or not.
IV. Alternate Remedy
The conundrum of supply of copies under section 207 of the code abounds criminal trials. Fairness is an evolving concept. There is no doubt that disclosure of all material which goes to establish the innocence of an accused is the sine qua non of a fair trial.[19] Effort is evidently underway to expand the concept in alignment with English jurisprudence. In the meanwhile, does the right of an accused to disclosure have another limb to stand on? Section 91 of the Code comes to the rescue of an accused, which confers wide discretionary powers on the Court, independent of section 173 of the Code, to summon the production of things or documents, relevant for the just adjudication of the case. In case the Court is of the opinion that the prosecution has withheld vital, relevant and admissible evidence from the Court, it can legitimately use its power under section 91 of the Code to discover the truth and to do complete justice to the accused.[20]
V. Conclusion
A society’s progress and advancement are judged on many parameters, an important one among them being the manner in which it administers criminal justice. Conversely, the ironic sacrilege of the core virtues of criminal jurisprudence in the temples of justice evinces social decadence. The Indian legislature of the twenty first century has given birth to several draconian statutes which place iron shackles on personal liberty, evoking widespread fear of police abuses and malicious prosecution. These statutes not only entail presumptions which reverse the burden of proof, but also include impediments to the grant of bail. Thus, a very heavy burden to dislodge the prosecution case is imposed on the accused, rendering the right to disclosure of paramount importance. It is the duty of the Court to keep vigil over this Constitutional and statutory right conferred on an accused by repudiating any procedure which prejudices his defence. Notable advancement has been made by the Apex Court in interpreting section 207 of the Code in conformity with the Constitutional mandate, including the right to disclosure. Strict adherence to the afore-noted principles will go a long way in ensuring real and substantial justice. Any departure will not only lead to judicial anarchy, but also further diminish the already dwindling faith of the public in the justice delivery system.
**
Advocate Manu Sharma has been practising at the bar for over sixteen years. He specialises in Criminal Defence. Some of the high profile cases he has represented are – the 2G scam case for former Union minister A Raja; the Religare/Fortis case for Malvinder Singh; Peter Mukerjee in the P Chidambaram/ INX Media case; Devas Multimedia in ISRO corruption act case; Om Prakash Chautala in PMLA case; Aditya Talwar in the aviation scam case; Dilip Ray, former Coal Minister in one of the coal scam cases; Suhaib Illyasi case.
**
Disclaimer: The views or opinions expressed are solely of the author.
[1] Maneka Gandhi and Another v. Union of India, (1978) 1 SCC 248
[2] S. 3 of the Criminal Procedure and Investigations Act, 1996
[3] R v. H and R v. C, 2004 (1) ALL ER 1269
[4] R v. Ward (Judith), (1993) 1 WLR 619 : (1993) 2 ALL ER 577 (CA)
[5] R v. Preston, (1994) 2 AC 130 : (1993) 3 WLR 891 : (1993) 4 ALL ER 638 (HL), R v. Stinchcome,
(1991), 68 C.C.C. (3d) 1 (S.C.C.)
[6] Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, 2019 SCC Online SC 1346
[7] Sidhartha Vashishth alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
[8] R. 16, part II, Ch. VI of the Bar Council of India Rules
[9] Manu Sharma, (2010) 6 SCC 1
[10] V.K. Sasikala v. State, (2012) 9 SCC 771 : AIR 2013 SC 613
[11] Sasikala, (2012) 9 SCC 771 : AIR 2013 SC 613
[12] Sala Gupta and Another v. Directorate of Enforcement, (2019) 262 DLT 661
[13] State of Orissa v. Debendra Nath Padhi¸(2005) 1 SCC 568
[14] Dharambir v. Central Bureau of Investigation, ILR (2008) 2 Del 842 : (2008) 148 DLT 289
[15] Nitya Dharmananda alias K. Lenin and Another v. Gopal Sheelum Reddy, (2018) 2 SCC 93
[16] Neelesh Jain v. State of Rajasthan, 2006 Cri LJ 2151
[17] Dilwar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394
[18] Karan Singh v. State of Haryana, (2013) 12 SCC 529
[19] Kanwar Jagat Singh v. Directorate of Enforcement & Anr, (2007) 142 DLT 49
[20] Neelesh, 2006 Cri LJ 2151
Disclaimer: The views or opinions expressed are solely of the author.
Validity & Existence of an Arbitration Clause in an Unstamped Agreement
By Kunal Kumar
January 8, 2024
In a recent ruling, a seven-judge bench of the Supreme Court of India in its judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, overruled the constitutional bench decision of the Supreme Court of India in N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. and has settled the issue concerning the validity and existence of an arbitration clause in an unstamped agreement. (‘N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III’)
Background to N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
One of the first instances concerning the issue of the validity of an unstamped agreement arose in the case of SMS Tea Estate Pvt. Ltd. v. Chandmari Tea Company Pvt. Ltd. In this case, the Hon’ble Apex Court held that if an instrument/document lacks proper stamping, the exercising Court must preclude itself from acting upon it, including the arbitration clause. It further emphasized that it is imperative for the Court to impound such documents/instruments and must accordingly adhere to the prescribed procedure outlined in the Indian Stamp Act 1899.
With the introduction of the 2015 Amendment, Section 11(6A) was inserted in the Arbitration & Conciliation Act 1996 (A&C Act) which stated whilst appointing an arbitrator under the A&C Act, the Court must confine itself to the examination of the existence of an arbitration agreement.
In the case of M/s Duro Felguera S.A. v. M/s Gangavaram Port Limited, the Supreme Court of India made a noteworthy observation, affirming that the legislative intent behind the 2015 Amendment to the A&C Act was necessitated to minimise the Court's involvement during the stage of appointing an arbitrator and that the purpose embodied in Section 11(6A) of A&C Act, deserves due acknowledgement & respect.
In the case of Garware Wall Ropes Ltd. v. Cosatal Marine Constructions & Engineering Ltd., a divisional bench of the Apex Court reaffirmed its previous decision held in SMS Tea Estates (supra) and concluded that the inclusion of an arbitration clause in a contract assumes significance, emphasizing that the agreement transforms into a contract only when it holds legal enforceability. The Apex Court observed that an agreement fails to attain the status of a contract and would not be legally enforceable unless it bears the requisite stamp as mandated under the Indian Stamp Act 1899. Accordingly, the Court concluded that Section 11(6A) read in conjunction with Section 7(2) of the A&C Act and Section 2(h) of the Indian Contract Act 1872, clarified that the existence of an arbitration clause within an agreement is contingent on its legal enforceability and that the 2015 Amendment of the A&C Act to Section 11(6A) had not altered the principles laid out in SMS Tea Estates (supra).
Brief Factual Matrix – N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
Indo Unique Flame Ltd. (‘Indo Unique’) was awarded a contract for a coal beneficiation/washing project with Karnataka Power Corporation Ltd. (‘KPCL’). In the course of the project, Indo Unique entered into a subcontract in the form of a Work Order with N.N. Global Mercantile Pvt. Ltd. (‘N.N. Global’) for coal transportation, coal handling and loading. Subsequently, certain disputes arose with KPCL, leading to KPCL invoking Bank Guarantees of Indo Unique under the main contract, after which Indo Unique invoked the Bank Guarantee of N. N. Global as supplied under the Work Order.
Top of FormS
Subsequently, N.N. Global initiated legal proceedings against the cashing of the Bank Guarantee in a Commercial Court. In response thereto, Indo Unique moved an application under Section 8 of the A&C Act, requesting that the Parties to the dispute be referred for arbitration. The Commercial Court dismissed the Section 8 application, citing the unstamped status of the Work Order as one of the grounds. Dissatisfied with the Commercial Court's decision on 18 January 2018, Indo Unique filed a Writ Petition before the High Court of Bombay seeking that the Order passed by the Commercial Court be quashed or set aside. The Hon’ble Bombay High Court on 30 September 2020 allowed the Writ Petition filed by Indo Unique, aggrieved by which, N.N. Global filed a Special Leave Petition before the Supreme Court of India.
N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. – I
The issue in the matter of M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unqiue Flame Ltd. & Ors. came up before a three-bench of the Supreme Court of India i.e. in a situation when an underlying contract is not stamped or is insufficiently stamped, as required under the Indian Stamp Act 1899, would that also render the arbitration clause as non-existent and/or unenforceable (‘N.N. Global Mercantile Pvt. Ltd. v. Indo Flame Ltd. – I’).
The Hon’ble Supreme Court of India whilst emphasizing the 'Doctrine of Separability' of an arbitration agreement held that the non-payment of stamp duty on the commercial contract would not invalidate, vitiate, or render the arbitration clause as unenforceable, because the arbitration agreement is considered an independent contract from the main contract, and the existence and/or validity of an arbitration clause is not conditional on the stamping of a contract. The Hon’ble Supreme Court further held that deficiency in stamp duty of a contract is a curable defect and that the deficiency in stamp duty on the work order, would not affect the validity and/or enforceability of the arbitration clause, thus applying the Doctrine of Separability. The arbitration agreement remains valid and enforceable even if the main contract, within which it is embedded, is not admissible in evidence owing to lack of stamping.
The Hon’ble Apex Court, however, considered it appropriate to refer the issue i.e. whether unstamped instrument/document, would also render an arbitration clause as non-existent, unenforceable, to a constitutional bench of five-bench of the Supreme Court.
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II
On 25 April 2023, a five-judge bench of the Hon’ble Supreme Court of India in the matter of N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. held that (1) An unstamped instrument containing an arbitration agreement cannot be said to be a contract which is enforceable in law within the meaning of Section 2(h) of the Indian Contract Act 1872 and would be void under Section 2(g) of the Indian Contract Act 1872, (2) an unstamped instrument which is not a contract nor enforceable cannot be acted upon unless it is duly stamped, and would not otherwise exist in the eyes of the law, (3) the certified copy of the arbitration agreement produced before a Court, must clearly indicate the stamp duty paid on the instrument, (4) the Court exercising its power in appointing an arbitration under Section 11 of the A&C Act, is required to act in terms of Section 33 and Section 35 of the Indian Stamp Act 1899 (N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II).
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
A seven-judge bench of the Supreme Court of India on 13 December 2023 in its recent judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, (1) Agreements lacking proper stamping or inadequately stamped are deemed inadmissible as evidence under Section 35 of the Stamp Act. However, such agreements are not automatically rendered void or unenforceable ab initio; (2) non-stamping or insufficient stamping of a contract is a curable defect, (2) the issue of stamping is not subject to determination under Sections 8 or 11 of the A&C Act by a Court. The concerned Court is only required to assess the prima facie existence of the arbitration agreement, separate from concerns related to stamping, and (3) any objections pertaining to the stamping of the agreement would fall within the jurisdiction of the arbitral tribunal. Accordingly, the decision in N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II and SMS Tea (supra) was overruled, by the seven-judge bench of the Supreme Court of India.
Kunal is a qualified lawyer with more than nine years of experience and has completed his LL.M. in Dispute Resolution (specialisation in International Commercial Arbitration) from Straus Institute for Dispute Resolution, Pepperdine University, California.
Kunal currently has his own independent practice and specializes in commercial/construction arbitration as well as civil litigation. He has handled several matters relating to Civil Law and arbitrations (both domestic and international) and has appeared before the Supreme Court of India, High Court of Delhi, District Courts of Delhi and various other tribunals.
No Safe Harbour For Google On Trademark Infringement
By Mayank Grover & Pratibha Vyas
October 9, 2023
Innovation, patience, dedication and uniqueness culminate in establishing a distinct identity. A trademark aids in identifying the source and quality, shaping perceptions about the identity's essence. When values accompany a product or service's trademark, safeguarding against misuse and infringement becomes crucial. A recent pronouncement of a Division Bench of the Delhi High Court dated August 10, 2023 in Google LLC v. DRS Logistics (P) Ltd. & Ors. and Google India Private Limited v. DRS Logistics (P) Ltd. & Ors. directed that Google’s use of trademarks as keywords for its Google Ads Programme does amount to ‘use’ in advertising under the Trademarks Act and the benefit of safe harbour would not be available to Google if such keywords infringe on the concerned trademark.
Factual Background
Google LLC manages and operates the Google Search Engine and Ads Programme, while, Google India Private Limited is a subsidiary of Google that has been appointed as a non-exclusive reseller of the Ads Programme in India. The Respondents, DRS Logistics and Agarwal Packers and Movers Pvt. Ltd. are leading packaging, moving and logistics service providers in India.
On 22.12.2011, DRS filed a suit against Google and Just Dial Ltd. under provisions of the Trademarks Act, 1999 (‘TM Act’) inter alia seeking a permanent injunction against Google from permitting third parties from infringing, passing off etc. the relevant trademarks of DRS. The core of the dispute revolved around Google’s Ads Programme. DRS claimed that its trade name 'AGARWAL PACKERS AND MOVERS' is widely recognized and a 'well-known' trademark. Use of DRS’s trademark as a keyword diverts internet traffic from its website to that of its competitors and they were entitled to seek restraint against Google for permitting third parties who are not authorized to use the said trademark. DRS further argued that Google benefits from these trademark infringements. This practice involved charging a higher amount for displaying these ads, constituting an infringement of their trademarks. Whereas, Google contended that the use of the keyword in the Ads Programme does not amount to ‘use’ under the TM Act notwithstanding that the keyword is/or similar to a trademark. Thus, the use of a term as a keyword cannot be construed as an infringement of a trademark under the TM Act, and being an intermediary, it claimed a safe harbour under Section 79 of the Information Technology Act, 2000. (‘IT Act’).
In essence, the dispute between the parties was rooted in DRS’s grievance concerning the Ads Programme. The Learned Single Judge vide judgment dated 30.10.2021interpreted relevant provisions of the TM Act and drew on multiple legal precedents to arrive at the decision that DRS can seek protection of its trademarks which were registered under Section 28 of the TM Act and issued directions to investigate complaints alleging the use of trademark and/or to ascertain whether a sponsored result has an effect of infringing a trademark or passing off.
Being aggrieved, Google LLC and Google Pvt. Ltd. filed appeals before the Division Bench. Google LLC argued that the Single Judge’s findings were erroneous and the directions issued were liable to be set aside. Google India claimed that it doesn’t control and operate the Search Engine and the Ads Programme making it unable to comply with the directions passed in the impugned judgment.
Analysis & Decision of Court
The Division Bench found Single Judge’s rationale for assessing trademark infringement through keywords and meta-tags valid. Meta-tags are a list of words/code in a website, not readily visible to the naked eye. It serves as a tool for indexing the website by a search engine. If a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves similar purpose. The Division Bench was unable to accept that using a trademark as a keyword, even if not visible, would not be considered trademark use under the TM Act.
Google placed heavy reliance on the decisions rendered by Courts across jurisdictions of United Kingdom, United States of America, European Union, Australia, New Zealand, Russia, South Africa, Canada, Spain, Italy, Japan and China; in the cases of Google France SARL and Google Inc. v. Louis Vitton SA & Ors.[1], Interflora Inc. v. Marks & Spencer Plc.[2], and L’Oreal SA v. eBay International AG[3] in support of the contention that the use of trade marks is by the advertiser and not by Google. However, the Division Bench rejected Google’s passive role; highlighting its active involvement in recommending and promoting trademark keywords for higher clicks in its Ads Programme. Division Bench referred to a few judicial decisions rendered in the United States of America that captured the essence of the controversy for perspective, concluding that Google actively promotes and encourages trademarks associated with major goods and services, rather than having a passive role.
It was held that the contention that the use of trademarks as keywords, per se constitutes an infringement of the trademark is unmerited; the assumption that an internet user is merely searching the address of the proprietor of the trademark when he feeds in a search query that may contain a trademark, is erroneous.
The Doctrine of 'Initial Interest Confusion' addresses trademark infringement based on pre-purchase confusion. The doctrine is applied when meta-tags, keywords, or domain names cause initial confusion similar to a registered trademark. If users are misled to access unrelated websites, trademark use in internet advertising may be actionable and reliance was placed on US precedents. Referring to Section 29 of the TM Act, it was directed that Section 29 does not specify the duration for which the confusion lasts but, even if the confusion is for a short duration and an internet user is able to recover from the same, the trade mark would be infringed and would offend Section 29(2) of the TM Act.
It was held that the Ads Programme is a platform for displaying advertisements. Google, being an architect and operator of its own programme makes it an active participant in the use of trademarks and determining the advertisements displayed on search pages. Their use of proprietary software makes them utilize trademarks and control the distribution of information related to potentially infringing links, ultimately leading to revenue maximization. Hence, a substantial link exists between Google LLC and Google India, rendering it impossible for Google India to deny its role in operating the Ads Programme. It was further held that Google sells trademarks as keywords to advertisers and encourages users to use trademarks as keywords for ads. It is contradictory for Google to encourage trademark use while claiming data belongs to third parties for exemption. After 2004, Google changed policies to boost revenue and subsequently, introduced a tool that searches effective terms, including trademarks. Google's active involvement in its advertising business and online nature does not necessarily qualify it for benefits under Section 79 of the IT Act. The Division Bench agreed with the view of the Single Judge that Google would not be eligible for protection of safe harbour under Section 79(1) of the IT Act, if its alleged activities infringe trademarks.
Conclusion
This is a seminal decision governing (and rather, restricting) the operations of intermediaries and redefining the jurisprudence of safe harbour under the IT Act. The decision is well-reasoned and establishes a significant precedent for safeguarding trademarks by uniquely holding Google accountable under its Ads Programme. The same will prevent usage of tradenames as a third-party trademark in keyword search or metatags by advertisers on Google’s search engine. While keywords and meta-tags have different levels of visibility, their purpose is similar i.e. advertising and attracting internet traffic. The use of trademarks as meta-tags by a person who is neither a proprietor of the trademark nor permitted to use the same leads to confusion amongst public at large due to the automated processes of search engines and consequently, constitutes trademark infringement.
About the Authors: Mayank Grover is a Partner and Pratibha Vyas is an Associate at Seraphic Advisors, Advocates & Solicitors
[1] C-236/08 to C-238/08 (2010) [2011] All ER (EC) 41
[2] [2014] EWCA Civ 1403
[3] 2C- 324/09 (2010)
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