Read judgment: Sunil Hirasingh Rathod vs. State of Maharashtra
Pankaj Bajpai
Mumbai, September 2, 2021: While stating that demand of gratification cannot be said to be proved only on the basis of the allegations levelled in the complaint in absence of any corroboration to that effect, the Bombay High Court has ruled that mere possession and recovery of currency notes from the accused without proof of demand will not establish the offence u/s 7 of Prevention of Corruption Act, 1988.
Further, the same shall be conclusive insofar as the offence u/s 13(1)(d)(i)(ii) is concerned as in the absence of proof of demand for illegal gratification, use of corrupt or illegal means of abuse of position as public servants to obtain any valuable thing or pecuniary advantage, cannot be held to be established.
While acquitting the appellants from all the charges, the Single Bench of Justice Bharti Dangre observed that mere recovery of tainted money from the accused in absence of proof of demand is not sufficient to sustain the conviction under P.C Act.
The background of the case was that one Sunil Rathod (Assistant engineer) and Balaji Birajdar (Sub-engineer), along with two others, were convicted u/s 7, 12 and 13(1)(d) r/w 13(2) of the PC Act in 2018, being accused ofdemanding and accepting bribe of fifteen lakhs for issuing an Intimation of Disapproval Certificate for a redevelopment project.
After considering the arguments and evidences on record, Justice Dangre noted that merely because of the existence of presumption u/s 20, the burden does not shift on the accused.
“The Evidence Act do not contemplate that the accused should prove the case with the same strictness and rigor as the prosecution is required to prove a criminal charge and it is sufficient if the accused is able to prove his case by standard of preponderance of probabilities as envisaged u/s 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of the version given by him throws doubt on the prosecution case”, observed the Bench.
Once the accused gives a reasonable and probable explanation, it is for the prosecution to prove affirmatively that the explanation is false, added the Bench.
Justice Dangre went on to observe that in case of criminal trial, it is not at all obligatory on the accused to produce evidence in support of its defence and for the purpose of proving his version, he can rely on the admissions given by prosecution witness or documents filed by the prosecution.
The High Court also noted that comprehensive and extensive arguments advanced on behalf of the accused persons, unfortunately went in vain as the judgment was passed by the Special Judge without even touching the evidence on record, and recording a finding that the prosecution is successful in proving the charge that accused persons have obtained pecuniary advantage to the tune of Rs.10 lakhs and Rs.5 lakhs respectively.
“The exercise which ought to have been taken by the learned Judge is required to be taken at this appellate stage and since it is permissible for this Court to re-appreciate the evidence brought on record, in exercise of its appellate powers, I was constrained to refer to the entire evidence afresh since the Special Judge did not delve into the evidence nor did not he appreciate the same, as a Court of first instance who was duty bound to scrutinize the evidence before arriving at a finding of guilt,” added Justice Dangre.
Read judgment: Samaul Sk. vs. The State of Jharkhand &Anr
Pankaj Bajpai
New Delhi, September 2, 2021: While reducing the sentence of the appellant, the Supreme Court has ruled that the objective of Section 357 of the CrPC is to apply whole or any part of the fine recovered to be applied on payment to any person of compensation for any loss or injury caused by the offence.
Stating that the object of any criminal jurisprudence is reformative in character and to take care of the victim, the Division Bench of Justice Sanjay Kishan Kaul and Justice Hrishikesh Roy observed that present is a case where the amount has been offered voluntarily by the appellant albeit to seek a reduction of sentence.
The background of the case was that the respondent complainant (Hena Bibi), claimed to be the legally married wife of the appellant, as per Muslim customs & rites, alleged that the appellant was already married to one Mastra Bibi when he apparently had illicit relationship with the respondent.
It was the case of the respondent that on the instigation of the first wife, the appellant started mental and physical torture and made demands of dowry and the respondent had to ultimately go back to her parents’ house. This alleged demand of dowry resulted in lodging of complaint in the Court of Sub Divisional Judicial Magistrate (SDJM), Pakur for offences u/s 498A of IPC.
The case went to trial and the SDJM held the appellant guilty and sentenced him to three years of rigorous imprisonment along with a fine. The appellant thereafter preferred the Special Leave Petition (SLP) before this Court and surrendered himself.
In the course of hearing of SLP, the appellant prayed for extension of the benefit of Probation of Offenders Act, 1958, which was however declined.
However, this Court expressed the view that it was not averse to consideration of reduction of sentence subject to the condition that the petitioner gave adequate compensation to the respondent for herself and her children apart from whatever maintenance was being paid u/s 125 of the CrPC.
After considering the circumstances and prayers in the present case, the Division Bench said that it will not come in the way of an arrangement, which should be beneficial to the respondent and her children if the appellant is showing remorse and is willing to make arrangements for the respondent complainant and his two children born out of their wedlock.
On being informed that the appellant has now undergone about seven months of sentence, the Top Court reduced the sentence to the period undergone in case the appellant pays to respondent complainant for her benefit and her children’s benefit a sum of Rs.3 lakhs.
The Court however made it clear that if the amounts are not deposited, the appellant will have to undergo the remaining part of the sentence of 3 years.
Read judgment: ABDUL RAZAK @ ABU AHMED VS. UNION OF INDIA AND ORS.
Pankaj Bajpai
Kochi, September 2, 2021: The Kerala High Court has ruled that there is a clear prohibition against using the evidence of a person accused of an offence against his co-accused, when he loses his status as a person who availed pardon, when there is breach of the terms of pardon.
Stating that the salutary principle u/s 306 of the CrPC could have been availed of by the prosecution before-hand, a Division Bench of Justice K. Vinod Chandran and Justice Ziyad Rahman observed that once co-accused is convicted, he cannot be called to the stand on behalf of the prosecution, to speak for them and against the other accused.
A convict in the same offence is not an approver and though an accomplice, his trial and conviction, even if in separate proceedings, renders him an incompetent witness, added the Bench.
The observation came pursuant to a petition filed by the second accused pending before the Special Court, wherein he had challenged an order, passed by the Special Court allowing an application submitted by the National Investigation Agency (NIA) permitting examination of one Shajahan V.K as an additional witness in the said Sessions Case.
The background of the case was that the petitioner along with a co-accused and Shajahan, (the proposed additional witness), in furtherance of their common intention to wage war against Syria, and to physically join the proscribed terrorist organisation ISIS, attempted to reach Syria together.
When they reached Turkey, the petitioner and the additional witness, were apprehended by Turkish officials and later deported to India, while one among them, managed to enter Syria. Upon deportation, both the petitioner and Shajahan were detained by the Special Cell of the Police at New Delhi.
Later, Shajahan was immediately taken into custody and a case was registered against him by NIA Unit of Delhi whereas the petitioner was released. Upon reaching his native place, the petitioner was apprehended by the State Police and a crime was registered, which was later taken over by NIA Cochin Unit, who filed chargesheet after completion of the investigation.
It was urged by the petitioner that the additional witness sought to be examined, was a co-accused who was tried and convicted by the NIA Court at New Delhi on the basis of the chargesheet filed by NIA, New Delhi Unit, based on the very same transactions and hence he could not be a competent witness.
The petitioner further urged that the accused in a case could be examined as a witness only u/s 315 of CrPC; the conditions under which were not satisfied in the present case.
On the other hand, the ASG opposed the present petition as not maintainable since it was an appealable order u/s 21 of the National Investigation Agency Act. On merits, the ASG further contended that, the Special Court has not committed any error by allowing the examination of the additional witness as the same is specifically contemplated u/s 311 of CrPC.
The ASG went on to explain that even if it is assumed that both the cases are arising from the very same transactions, there cannot be any bar against the examination of Shajahan, the proposed additional witness, as he is no longer an accused in the case charge sheeted by the NIA, Delhi Unit, since he now stands convicted by the Special Court at Delhi.
On the issue of maintainability of present petition as contended by the ASG, the Division Bench found that the specific ground on which the order of Special Court is challenged, is serious and grave prejudice will be caused in examining a co-accused as witness, without he being granted pardon and without satisfying the conditions of Section 315 of CrPC.
The Bench found that the charge sheet filed by NIA Kochi Unit and charge sheet by the NIA, Delhi Unit, revealed that the transactions which were subject matter of both are one and the same.
“Involvement of the petitioner as well as the proposed additional witnesses is clearly mentioned in both the charge sheets and the conspiracy alleged against them is in respect of the very same transaction. Both the said persons conspired and travelled together to achieve their common objective and were apprehended together by the Turkish authorities. They were proceeding to Syria in furtherance of their common intention and in execution of the strategy/plan devised jointly by them along with other accused persons, when they were detained and eventuallydeported”, observed the Bench.
The High Court opined that the right of an accused against self-incrimination is a right embedded in the constitutional mandate of Article 20(3) of the Constitution and one of the basic tenets of criminal jurisprudence.
There are only two exceptional circumstances where an accused can be examined as a witness against other persons accused of the very same offences i.e (i) if he has been tendered pardon by following the procedure contemplated u/s 306 or 307 of CrPC or (ii) under the circumstances mentioned in Section 315 of CrPC, added the Court.
Therefore the Division Bench concluded that the entire proceedings against the petitioner are akin to a ‘split-up’ trial based on very same charge sheet, where a co- accused cannot be permitted to be examined as witness; even if he was tried and convicted before the instant trial.
Hence, the High Court allowed the present petition and dismissed the order passed by the Special Court for trial of Offences of NIA cases, Ernakulam, as not legally sustainable.
Read order: MANISH KUMAR @ MANNY AND ORS v. THE STATE AND ORS
Pankaj Bajpai
New Delhi, September 2,2021: In order to avoid conflicting orders on the issue of grant of interim bail to under trial prisoners, the Delhi High Court has placed the matter before the High Powered Committee (HPC) to issue appropriate clarifications for the guidance of Benches dealing with application for grant of interim bail to Under Trials facing trial for offences u/s 364A, 394 & 397 of the IPC.
The issue which had arisen for consideration was, whether HPC guidelines issued in 2021 extend the benefit to Under Trial Prisoners who are facing trial for offences u/s 364A, 394, 397 IPC etc. especially when these offences do not figure in the Exclusion Clause.
The observation came pursuant to bail applications seeking entitlement to the benefit of HPC guidelines to the persons who are accused of offences u/s 392/394/395/397/412 of IPC.
The counsels for the petitioners stated that the Minutes of Meeting dated May 11, 2021 provides that a person facing trial for an offence u/s 302 IPC is entitled to be released on interim bail under the HPC guidelines.
The counsel contended that if an under trial prisoner who is accused in two cases involving an offence u/s 302 IPC, where the punishment is death or imprisonment for life, is entitled to the benefit of the HPC guidelines and is to be released on interim bail, then an Under Trial Prisoner who is facing trial in a case involving offences u/s 392/394/395/397/412 IPC where the maximum punishment is life, should surely should be extended the same benefit.
On the other hand, the APP opposed the same by contending that the HPC had intentionally omitted the offences like dacoity, robbery, kidnapping for ransom etc., and the members of the HPC did not intend to extend the benefit of HPC guidelines to the persons accused of these offences.
After considering the arguments, the single Bench of Justice Subramonium Prasad noted that with the outbreak of COVID-19 pandemic, in compliance of the directions of the Supreme Court in Suo Moto W.P.(C).1/2020, the High Courts constituted HPCs to frame guidelines to decongest prisons in order to prevent the outbreak of COVID-19 pandemic inside the prisons.
A High Powered Committee of this Court was constituted to lay down the guidelines for the release of Under Trial Prisoners who were to be released to decongest jails, added the Bench.
Justice Prasad went on to mention that in the Minutes of Meeting dated May 18, 2020, under trial prisoners who have committed offences like rape etc., have been specifically excluded from the ambit of HPC guidelines.
The members of the HPC clarified the position that the benefit of the HPC guidelines should not be extended to the persons who are facing trial for offences of dacoity, robbery and kidnapping for ransom etc., added the Single Judge.
“During the second wave of COVID-19 which broke out in the Capital in the months of April and May 2021, once again the High Powered Committee laid down the parameters for de-congesting the prisons. The meeting held on 04.05.2021 laid down the category of prisoners who should be granted interim bail for a period of 90 days”, observed the Bench.
Justice Prasad found that this Court by an order dated July 5, 2021 titled as Arshad v. State of NCT of Delhi, denied interim bail on the ground that the offence u/s 394 IPC is excluded from the ambit of the HPC guidelines issued in the year 2020.
On the other hand, this Court by another order dated June 24, 2021 titled as Mohit Sharma v. State, had extended the benefit of the HPC guidelines to an accused undergoing trial for offences u/s 302/392/397/411/120B/34 IPC, noted Justice Prasad.
Hence, the Single Bench placed the matter before the HPC for issuance of appropriate clarifications, in order to avoid conflict of opinions on the issue of bail to under trial prisoners.
Read Judgement: Kiran V. Bhaskar VS. State of Haryana and others
Tulip Kanth
Chandigarh, September 2, 2021: In a case pertaining to the custody of a minor child, the Punjab and Haryana High Court has held that it would be for the welfare and in best of interest of the minor child that order be passed for return of the minor child to USA, from where he was removed.
Herein, the petitioner father had filed a petition under Articles 226 and 227 of the Constitution of India r/w Section 482 of the Cr.P.C. for issuance of a writ in the nature of habeas corpus directing the respondents to ensure the release of the minor son of the petitioner from illegal custody of the mother and maternal grandparents of the minor child and hand over his custody to the petitioner.
The factual background laid down by the petitioner was that the petitioner and the respondent wife were married in New York, USA, and the minor child was born in Benton County, Arkansas.
He was diagnosed with hydronephrosis, a kidney condition. He underwent corrective surgery at Max Hospital, Saket, for which the petitioner flew down to India. Subsequently, after the surgery, the petitioner returned to the U.S.A. to rejoin work.
According to the petitioner the respondent had violated the international travel consent by not returning the minor child to the USA by September 26,2019 (the mutually agreed upon date).Later, the Circuit Court of Benton County, Arkansas passed an order awarding primary care, custody and control of the minor child to the petitioner, and directing the respondent to return the child to the petitioner immediately, pending further orders.
So, the petitioner argued that the respondent continued to detain the minor child in her illegal custody in India, in the teeth of the order passed by the jurisdictional foreign court.
While directing the respondent to return to USA along with the minor child on or before September 30,2021, the Bench of Justice Arun Kumar Tyagi opined that there is likelihood of the minor child being psychologically disturbed due to his separation from his mother, who is the primary care giver to him and under whose care he has remained since his birth but his mother has already wrongfully deprived him of the love and affection of his father with whom also the minor child lived since his birth till removal to India.
There was no material to suggest that return of the minor child to USA would result in psychological physical or cultural harm to him. It could not be said to that there was any undue and unreasonable delay in filing of the present petition so as to disentitle the petitioner to the relief claimed, noted the Court.
The Court also discussed the facet that exercise of extra ordinary writ jurisdiction to issue writ of habeas corpus in such cases is not solely dependent on and does not necessarily follow merely determination of illegality of detention and is based on the paramount consideration of welfare of the minor child irrespective of legal rights of the parent.
It was also reiterated that whenever a question arises pertaining to the custody of a minor child whether before Family Court/Guardian Judge on a petition for custody of the minor child under the Guardians and Wards Act, 1890, Hindu Minority and Guardianship Act, 1956 etc. or before High Court or Supreme Court on a habeas corpus petition, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor.
The Bench has also clarified that the fact that there is a pre existing order of the foreign Court in favour of the petitioner is a factor to be reckoned in favour of the petitioner but the same is not determinative of the question of repatriation of the minor child for permitting the same which question has to be decided on the test of best of interest and welfare of the minor child.
The Bench mentioned that in the present case, the question of issuance of writ of habeas corpus in exercise of jurisdiction under Article 226 of the Constitution of India directing or declining return of the minor child to the native country, has to be decided, not on the basis of legal rights of the parties, but on the basis as to whether paramount consideration of the welfare and best interest of the minor child lies in return to USA or continued stay in India.
While allowing the petition, the Court held that the question of appointment of guardian/handing over custody of the minor child to either of the parents would be left for adjudication by the Court of competent jurisdiction in USA on the basis of paramount consideration of welfare and best of the interest of the child.
Read Order: Court On Its Own Motion v. Union Of India And Others
LE Staff
Chandigarh, September 2, 2021: The Punjab and Haryana High Court has taken into consideration the prevailing situation in the country due to the COVID-19 pandemic and has extended the life of interim orders till September 15,2021.
The Bench of Justice Ravi Shankar Jha and Justice Arun Palli directed that the interim arrangement made by the Court, by order dated April 28, 2021, as clarified by the order dated August 20, 2021, shall continue to remain in operation, till the adjourned date which is September 15, 2021.
It was clarified in the order that the amicus curiae had placed certain material, highlighting the prevailing situation in India as well as other countries due to the pandemic (COVID-19), which has been germane to the issues that are being examined and also if the interim arrangements/orders made by this Court need to be continued.
The same has accordingly been taken on record by the Bench.
The matter has now been listed on September 15,2021.
The earlier order passed on April 28, 2021 said, “All the interim orders/directions issued or protection granted including any order requiring any compliance by the parties to such proceedings, passed by this Court or any other Court subordinate to it or any Family Court or Labour Court or any Tribunal or any other Judicial or Quasi Judicial forum, over which this Court has power of superintendence, which are subsisting today shall stand extended till 30th June, 2021”.
This earlier order was passed keeping in consideration the alarming increase in the COVID-19 pandemic and the grave situation that had arisen as a result thereof. It was also observed therein that the litigants were not able to get in touch with counsels who in turn were finding it difficult to prepare files and get the matters listed at an early date. The court was also observant of the fact that the situation that had arisen demanded that certain measures be taken up so as to ensure that during this crisis, generation of litigation could be controlled for some time.
Read Judgment: Union of India vs. Manoj Kumar & Ors
Pankaj Bajpai
New Delhi, September 1,2021: While examining the claims made by Private Secretaries (Grade-II) employed in the Eastern Central Railways (Field Office/Zonal Railways),for parity in pay with their counterparts working in the Central Secretariat Stenographers Service & Railway Board Secretariat Stenographers Service, the Supreme Court has ruled that absolute equality ought not to be given simply because the basic nature of work carried out by the two were same.
The disparity between the Secretariat and field offices has canvassed a case for parity between similarly placed persons employed in field offices and the Secretariat, in view of the field offices being at the cutting edge of administration, added the Court.
However, the Division Bench of Justice Sanjay Kishan Kaul and Justice Hrishikesh Roy observed that it may not be possible or even justified to grant complete parity because the hierarchy and career progression will need to be different taking in view the functional considerations and relativities across the board.
Opining that the benefit of equal pay cannot accrue to the respondents, the Apex Court refused to accept the plea that as a result of parity being given up to the level of Assistant, the respondents, being one post higher, would automatically have to get one higher grade.
The Division Bench further noted that this Court in Union of India v. Tarit Ranjan Das opined that the principle of equal pay for equal work cannot be applied merely on basis of designation, and it was held that there was no question of any equivalence on that basis while dealing with the 5th Pay Commission recommendations with respect to functional requirements.
“The aspect of disparity between the Secretariat and the field offices was a matter taken note of by the Commission itself while making the recommendations. Yet to some extent, a separate recommendation was made qua Secretariat Organizations and non-Secretariat Organizations. Once these recommendations are separately made, to direct absolute parity would be to make the separate recommendations qua non-Secretariat Organizations otiose. If one may say, there would have been no requirement to make these separate recommendations if everyone was to be treated on parity on every aspect”, observed the Bench.
The Top Court accepted that once the regional offices of the Railways are to be treated as non-Secretariat Organizations, then the specific recommendations of Pay Commission relating to such non-Secretariat Organizations will apply.
However, giving parity between the Private Secretary/equivalent to a Section Officer cannot be said to be mutatis mutandis applicable even to non-Secretariat Organizations, added the Court.
“If we were to opine otherwise and equate everybody there would have been no purpose in the 6th CPC making separate recommendations for non-SecretariatOrganizations in their wisdom. It is not as if the Commission was unaware of the plea of disparity between the Secretariat and field offices as that was dealt with, but despite having taken note of the same some difference was sought to be made between Secretariat and non-Secretariat offices”, observed the Top Court.
The Apex Court went on to reiterate that Pay Commission is a specialized body set up with the objective of resolving anomalies and the anomaly in question was referred to the Pay Commission at the request of candidates similarly situated to the respondents and thus, the 6th CPC was aware of the claim for parity and the requirement of making a recommendation in that regard.
Therefore, the Supreme Court allowed the appeal and added that the Pay Commission in its wisdom while giving better scales, has still sought to maintain a separate recommendation for non-Secretariat Organizations.
Read judgment: Asif Iqbal Naik vs. State of Jammu & Kashmir and Ors
Pankaj Bajpai
Srinagar, September 1,2021:The Jammu & Kashmir High Court has held that no fetters can be placed on the freedom of press by registering an FIR against a reporter, who was performing his professional duty by publishing a news item on the basis of information obtained by him from an identifiable source.
The Single Bench of Justice Rajnesh Oswal observed that mere fact that the FIR was lodged only against the journalist and not against the person, who had disclosed the said incident to the journalist prima facie, established malice on the part of the respondent police officials.
“The mens rea is an essential ingredient of offence u/s 505 IPC and as section 505 IPC provides a reasonable restriction on the fundamental right to freedom of speech and expression, therefore, the same is required to be strictly construed. The intention to generate the consequences as contained u/s 505 IPC must be forthcoming from the plain reading of the statement/report or rumour and should not be left at the discretion of a particular person”, observed Justice Oswal.
The dispute arose when the petitioner (a reputed journalist) had published a story in the Newspaper “Early Times” in 2018 bearing the heading, “Father of 5 brutally tortured by Kishtwar Police”. The respondents got furious and approached the Deputy Commissioner. Later, an FIR u/s 500, 504 and 505 of the IPC was registered by the Kishtwar Police without conducting any preliminary enquiry.
The petitioner has challenged the FIR on the ground that it was lodged to harass the petitioner so as to stop him from publishing any news item against the Police establishment and to gag the press and electronic media, which amounts to infringement of right of free speech and expression as guaranteed under the Article 19 of the Constitution.
The High Court therefore found that prima facie there was nothing in the FIR that the petitioner had desired to generate the consequences as claimed by the respondents,rather he had performed his professional duty.
The Court also opined that the publication of the news item on the basis of statement made by the cousin and brother of Akhter Hussain, did not amount to offence u/s 499 IPC as the petitioner had been performing his professional duty of reporting the matter. More so, when the complaint was too filed against some of the respondents by the brother of the said Akhter Hussain narrating the similar story.
The exception to section 505 IPC clearly provides that it does not amount to an offence within the meaning of this section when a person making, publishing or circulating such report, rumour or report has reasonable grounds for believing that such statement, rumor or report is true and make publishes or circulates in good faith and without any such intent, opined Justice Oswal.
Even if, for the sake of arguments the offence is made out against the petitioner, still his case would fall within the exception as well, as he published what was narrated by kin of Akhter Hussain, added the High Court.
Justice Oswal further noted that the mode and manner in which the FIR has been lodged clearly reflects the mala fide on the part of respondents as they could have given their version by similar mode but they chose unique method of silencing the petitioner and it is undoubtedly an attack on the freedom of press.
Hence, the High Court quashed the FIR registered by Kishtwar Police Station, for commission of offences u/s 500, 504 & 505 of the IPC.
Read judgment: Union of India & Anr vs. S. Narasimhulu Naidu (dead) Through Lrs. & Ors
Pankaj Bajpai
New Delhi, September 1, 2021: The Supreme Court has ruled that for res judicata to apply, the matter in the former suit must have been alleged by one party and either denied or admitted, expressly or impliedly by the other.
A Division Bench of Justice Sanjay Kishan Kaul and Justice Hemant Gupta observed that since the issue in the suit was restricted to 4971.5 sq. yards, the decree would be binding qua to that extent only and such issue cannot be said to be barred by constructive res judicata as per Explanation IV as it applies to the plaintiff in a later suit.
The Apex Court found that the issue directly and substantially involved in the first suit was to claim exclusive ownership of deceased-M. Gurunathan to the whole property left behind by deceased-Gangammal, although eviction was sought of the defendant from a particular portion of the land on which he had built a hut for residence.
On the question of title over land, the Top Court observed that since the land is transferred from the State, document of title is not required to be registered in terms of Section 17 of the Registration Act, 1908 and/or in terms of Government Grants Act, 1895.
The background of the case was that the legal heirs of deceased respondent filed an application u/s 8 of the Andhra Pradesh Land Grabbing (Prohibition) Act,1982, before the Special Court, Hyderabad alleging grabbing of their land by Central government, which was purchased by their late father from one Shaik Ahmed.
The dispute arose when the subject land was sold and a suit was filed claiming trespassing over the scheduled property by the government contractors. This suit was decreed declaring the plaintiffs as title holders of the suit property and appeal challenging the same before High Court came to be dismissed.
In the meantime, the applicants contended that they are original owners of the land in question and the Government had no right or title over the property, which came to be allowed by the Special Court, Hyderabad.
The counsel for the appellant contended that the subject matter of the first suit was only 4971.5 sq. yards which was purchased by the plaintiffs. Thus, the issue was in respect of title of the plaintiffs over the said land alone and not the entire land which was handed over to the Union by the State of Andhra Pradesh.
Opposing the same, the applicants urged that the decree in the first suit is in respect of entire property purchased by predecessor of the applicants,though the claim of plaintiffs was restricted to the land purchased by him.
It was therefore submitted by the applicant that the principle of res judicata would be applicable where the issues directly and substantially involved between the same parties in the previous and subsequent suit are same, though in the previous suit, only part of the property was involved while in the subsequent suit, the whole of the property was the subject matter.
After considering the arguments, the Division Bench noted that the requisite conditions to apply the principle of res judicata as between co-defendants are that (a) there must be conflict tof interest between the defendants concerned, (b) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims, and (c) the question between the defendants must have been finally decided.
“Apart from the fact that the transfer of title in favour of the Union is complete when the possession was delivered, but even thereafter, the military land register and general land register produced by the appellants show the possession of the appellants over such land. The military land register and general land register are public documents within the meaning of Section 74 of the Indian Evidence Act, 1872 (Evidence Act) containing the records of the acts of the sovereign authority i.e., the Union as well as official body. Still further, Section 114 of the Evidence Act grants presumption of correctness being an official act having been regularly performed”, observed the Top Court.
Therefore, the Top Court opined that in the absence of any evidence to show that such records were not maintained properly, the official record containing entries of ownership and possession would carry the presumption of correctness.
In view of the transfer of land on October 10, 1956, followed by delivery of possession on Mar 19, 1958, and continuous assertion of possession thereof, it leads to the unequivocal finding that appellants are owners and in possession of the suit land, concluded the Apex Court.
Read Order: Salimbhai Hamidbhai Menon vs. Niteshkumar Maganbhai Patel & Anr
Pankaj Bajpai
New Delhi, September 1, 2021: The Supreme Court has ruled that considerations germane to the exercise of the jurisdiction to quash an FIR must be present to the mind, while deciding whether an interim stay of arrest is warranted or not. What is present to the mind must emerge from the text of the order.
The Division Bench of Justice D.Y Chandrachud and Justice M.R. Shah observed that while an order granting a stay of arrest in a proceeding u/s 482 of the CrPC lies within the jurisdiction of the High Court, the grant of such relief must be after a judicious application of mind, which must emerge from the reasons which are recorded by the Judge.
While directing that the proceedings are to be listed on a future date, the High Court is undoubtedly not expected to deliver a detailed judgment elaborating upon reasons why a stay of arrest has been granted. But the reasons recorded by the Court must reflect an application of mind to relevant facts and circumstances, added the Bench.
The background of the case was that the accused had approached the Gujarat High Court by filing a petition u/s 482 of CrPC seeking quashing of an FIR lodged against him under sections 405, 420, 465, 467, 468 and 471 of IPC. When this petition was pending,the accused was arrested. When the proceedings were taken up, an oral direction was issued by the Single Judge restraining the arrest.
After considering the facts, the Division Bench opined that the procedure followed by the High Court of issuing an oral direction restraining the arrest of the first respondent was irregular.
If after hearing the parties on December 23,2020, the High Court was of the view that an opportunity should be granted to Counsel for the appellant and the first respondent to explore the possibility of a settlement and, on that ground, an interim protection against arrest ought to be granted, a specific judicial order to that effect was necessary, added the Bench.
The Apex Court made it clear that oral observations in court are in the course of a judicial discourse. The text of a written order is what is binding and enforceable. Issuing oral directions (presumably to the APP) restraining arrest, does not form a part of the judicial record and must be eschewed.
Absent a judicial order, the investigating officer would have no official record emanating from the High Court on the basis of which a stay of arrest is enforced. The administration of criminal justice is not a private matter between the complainant and the accused but implicates wider interests of the State in preserving law and order as well as a societal interest in the sanctity of the criminaljustice administration, added the Top Court.
The Apex Court further found that the Single Judge of the High Court had granted a stay of arrest “to strike” a balance between both the parties while observing that the investigation may proceed. However, how this would strike a balance between both the parties was unclear from the reasons which had been adduced.
Therefore, the Apex Court set aside the order of the High Court dated March 31,2021, and granted liberty to proceed with the petition u/s 482 of the CrPC which has been pending consideration.
Read order: State of West Bengal vs. Reena Joshi
Pankaj Bajpai
New Delhi, September 1,2021: While refusing to interfere in the decision of the Central Administrative Tribunal (CAT) directing the State of West Bengal to pass fresh order on inter-cadre transfer in IAS Department, the Delhi High Court has ruled that denial of inter-cadre transfer calls for reasons.
A Division Bench of Justice Rajiv Shakdher and Justice Talwant Singh observed that unless the reasons set out in the order of refusal for inter-cadre transfer are backed by relevant material, it cannot pass muster of this Court.
The observation came pursuant to a petition filed by the State challenging the order of the CAT, whereby it directed the State to pass fresh order on the request of the respondent seeking inter-cadre transfer way back in 2016.
The inter-cadre transfer was sought by the respondent on account of the fact that, her spouse, who is an Indian Forest Service (IFS) officer of 2012 batch, was posted in Uttarakhand cadre. However, this request was rejected by the petitioner i.e., the State of West Bengal on account of shortage of officers.
The High Court found that the petitioner has trotted out, shortage of officers, as the reason, for rejecting the request of respondent qua inter-cadre transfer, without placing the relevant material on record.
The Division Bench further noted that similar approach has been taken, in matter after matter, by the petitioner where officer(s) have sought inter-cadre transfer to other State(s) on account of their marriage, and which has been refused on a similar ground.
Therefore, the High Court dismissed the petition observing that the CAT has given another opportunity to the petitioner to pass a fresh order.
Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
Validity & Existence of an Arbitration Clause in an Unstamped Agreement
By Kunal Kumar
January 8, 2024
In a recent ruling, a seven-judge bench of the Supreme Court of India in its judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, overruled the constitutional bench decision of the Supreme Court of India in N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. and has settled the issue concerning the validity and existence of an arbitration clause in an unstamped agreement. (‘N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III’)
Background to N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
One of the first instances concerning the issue of the validity of an unstamped agreement arose in the case of SMS Tea Estate Pvt. Ltd. v. Chandmari Tea Company Pvt. Ltd. In this case, the Hon’ble Apex Court held that if an instrument/document lacks proper stamping, the exercising Court must preclude itself from acting upon it, including the arbitration clause. It further emphasized that it is imperative for the Court to impound such documents/instruments and must accordingly adhere to the prescribed procedure outlined in the Indian Stamp Act 1899.
With the introduction of the 2015 Amendment, Section 11(6A) was inserted in the Arbitration & Conciliation Act 1996 (A&C Act) which stated whilst appointing an arbitrator under the A&C Act, the Court must confine itself to the examination of the existence of an arbitration agreement.
In the case of M/s Duro Felguera S.A. v. M/s Gangavaram Port Limited, the Supreme Court of India made a noteworthy observation, affirming that the legislative intent behind the 2015 Amendment to the A&C Act was necessitated to minimise the Court's involvement during the stage of appointing an arbitrator and that the purpose embodied in Section 11(6A) of A&C Act, deserves due acknowledgement & respect.
In the case of Garware Wall Ropes Ltd. v. Cosatal Marine Constructions & Engineering Ltd., a divisional bench of the Apex Court reaffirmed its previous decision held in SMS Tea Estates (supra) and concluded that the inclusion of an arbitration clause in a contract assumes significance, emphasizing that the agreement transforms into a contract only when it holds legal enforceability. The Apex Court observed that an agreement fails to attain the status of a contract and would not be legally enforceable unless it bears the requisite stamp as mandated under the Indian Stamp Act 1899. Accordingly, the Court concluded that Section 11(6A) read in conjunction with Section 7(2) of the A&C Act and Section 2(h) of the Indian Contract Act 1872, clarified that the existence of an arbitration clause within an agreement is contingent on its legal enforceability and that the 2015 Amendment of the A&C Act to Section 11(6A) had not altered the principles laid out in SMS Tea Estates (supra).
Brief Factual Matrix – N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
Indo Unique Flame Ltd. (‘Indo Unique’) was awarded a contract for a coal beneficiation/washing project with Karnataka Power Corporation Ltd. (‘KPCL’). In the course of the project, Indo Unique entered into a subcontract in the form of a Work Order with N.N. Global Mercantile Pvt. Ltd. (‘N.N. Global’) for coal transportation, coal handling and loading. Subsequently, certain disputes arose with KPCL, leading to KPCL invoking Bank Guarantees of Indo Unique under the main contract, after which Indo Unique invoked the Bank Guarantee of N. N. Global as supplied under the Work Order.
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Subsequently, N.N. Global initiated legal proceedings against the cashing of the Bank Guarantee in a Commercial Court. In response thereto, Indo Unique moved an application under Section 8 of the A&C Act, requesting that the Parties to the dispute be referred for arbitration. The Commercial Court dismissed the Section 8 application, citing the unstamped status of the Work Order as one of the grounds. Dissatisfied with the Commercial Court's decision on 18 January 2018, Indo Unique filed a Writ Petition before the High Court of Bombay seeking that the Order passed by the Commercial Court be quashed or set aside. The Hon’ble Bombay High Court on 30 September 2020 allowed the Writ Petition filed by Indo Unique, aggrieved by which, N.N. Global filed a Special Leave Petition before the Supreme Court of India.
N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. – I
The issue in the matter of M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unqiue Flame Ltd. & Ors. came up before a three-bench of the Supreme Court of India i.e. in a situation when an underlying contract is not stamped or is insufficiently stamped, as required under the Indian Stamp Act 1899, would that also render the arbitration clause as non-existent and/or unenforceable (‘N.N. Global Mercantile Pvt. Ltd. v. Indo Flame Ltd. – I’).
The Hon’ble Supreme Court of India whilst emphasizing the 'Doctrine of Separability' of an arbitration agreement held that the non-payment of stamp duty on the commercial contract would not invalidate, vitiate, or render the arbitration clause as unenforceable, because the arbitration agreement is considered an independent contract from the main contract, and the existence and/or validity of an arbitration clause is not conditional on the stamping of a contract. The Hon’ble Supreme Court further held that deficiency in stamp duty of a contract is a curable defect and that the deficiency in stamp duty on the work order, would not affect the validity and/or enforceability of the arbitration clause, thus applying the Doctrine of Separability. The arbitration agreement remains valid and enforceable even if the main contract, within which it is embedded, is not admissible in evidence owing to lack of stamping.
The Hon’ble Apex Court, however, considered it appropriate to refer the issue i.e. whether unstamped instrument/document, would also render an arbitration clause as non-existent, unenforceable, to a constitutional bench of five-bench of the Supreme Court.
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II
On 25 April 2023, a five-judge bench of the Hon’ble Supreme Court of India in the matter of N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. held that (1) An unstamped instrument containing an arbitration agreement cannot be said to be a contract which is enforceable in law within the meaning of Section 2(h) of the Indian Contract Act 1872 and would be void under Section 2(g) of the Indian Contract Act 1872, (2) an unstamped instrument which is not a contract nor enforceable cannot be acted upon unless it is duly stamped, and would not otherwise exist in the eyes of the law, (3) the certified copy of the arbitration agreement produced before a Court, must clearly indicate the stamp duty paid on the instrument, (4) the Court exercising its power in appointing an arbitration under Section 11 of the A&C Act, is required to act in terms of Section 33 and Section 35 of the Indian Stamp Act 1899 (N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II).
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
A seven-judge bench of the Supreme Court of India on 13 December 2023 in its recent judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, (1) Agreements lacking proper stamping or inadequately stamped are deemed inadmissible as evidence under Section 35 of the Stamp Act. However, such agreements are not automatically rendered void or unenforceable ab initio; (2) non-stamping or insufficient stamping of a contract is a curable defect, (2) the issue of stamping is not subject to determination under Sections 8 or 11 of the A&C Act by a Court. The concerned Court is only required to assess the prima facie existence of the arbitration agreement, separate from concerns related to stamping, and (3) any objections pertaining to the stamping of the agreement would fall within the jurisdiction of the arbitral tribunal. Accordingly, the decision in N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II and SMS Tea (supra) was overruled, by the seven-judge bench of the Supreme Court of India.
Kunal is a qualified lawyer with more than nine years of experience and has completed his LL.M. in Dispute Resolution (specialisation in International Commercial Arbitration) from Straus Institute for Dispute Resolution, Pepperdine University, California.
Kunal currently has his own independent practice and specializes in commercial/construction arbitration as well as civil litigation. He has handled several matters relating to Civil Law and arbitrations (both domestic and international) and has appeared before the Supreme Court of India, High Court of Delhi, District Courts of Delhi and various other tribunals.
No Safe Harbour For Google On Trademark Infringement
By Mayank Grover & Pratibha Vyas
October 9, 2023
Innovation, patience, dedication and uniqueness culminate in establishing a distinct identity. A trademark aids in identifying the source and quality, shaping perceptions about the identity's essence. When values accompany a product or service's trademark, safeguarding against misuse and infringement becomes crucial. A recent pronouncement of a Division Bench of the Delhi High Court dated August 10, 2023 in Google LLC v. DRS Logistics (P) Ltd. & Ors. and Google India Private Limited v. DRS Logistics (P) Ltd. & Ors. directed that Google’s use of trademarks as keywords for its Google Ads Programme does amount to ‘use’ in advertising under the Trademarks Act and the benefit of safe harbour would not be available to Google if such keywords infringe on the concerned trademark.
Factual Background
Google LLC manages and operates the Google Search Engine and Ads Programme, while, Google India Private Limited is a subsidiary of Google that has been appointed as a non-exclusive reseller of the Ads Programme in India. The Respondents, DRS Logistics and Agarwal Packers and Movers Pvt. Ltd. are leading packaging, moving and logistics service providers in India.
On 22.12.2011, DRS filed a suit against Google and Just Dial Ltd. under provisions of the Trademarks Act, 1999 (‘TM Act’) inter alia seeking a permanent injunction against Google from permitting third parties from infringing, passing off etc. the relevant trademarks of DRS. The core of the dispute revolved around Google’s Ads Programme. DRS claimed that its trade name 'AGARWAL PACKERS AND MOVERS' is widely recognized and a 'well-known' trademark. Use of DRS’s trademark as a keyword diverts internet traffic from its website to that of its competitors and they were entitled to seek restraint against Google for permitting third parties who are not authorized to use the said trademark. DRS further argued that Google benefits from these trademark infringements. This practice involved charging a higher amount for displaying these ads, constituting an infringement of their trademarks. Whereas, Google contended that the use of the keyword in the Ads Programme does not amount to ‘use’ under the TM Act notwithstanding that the keyword is/or similar to a trademark. Thus, the use of a term as a keyword cannot be construed as an infringement of a trademark under the TM Act, and being an intermediary, it claimed a safe harbour under Section 79 of the Information Technology Act, 2000. (‘IT Act’).
In essence, the dispute between the parties was rooted in DRS’s grievance concerning the Ads Programme. The Learned Single Judge vide judgment dated 30.10.2021interpreted relevant provisions of the TM Act and drew on multiple legal precedents to arrive at the decision that DRS can seek protection of its trademarks which were registered under Section 28 of the TM Act and issued directions to investigate complaints alleging the use of trademark and/or to ascertain whether a sponsored result has an effect of infringing a trademark or passing off.
Being aggrieved, Google LLC and Google Pvt. Ltd. filed appeals before the Division Bench. Google LLC argued that the Single Judge’s findings were erroneous and the directions issued were liable to be set aside. Google India claimed that it doesn’t control and operate the Search Engine and the Ads Programme making it unable to comply with the directions passed in the impugned judgment.
Analysis & Decision of Court
The Division Bench found Single Judge’s rationale for assessing trademark infringement through keywords and meta-tags valid. Meta-tags are a list of words/code in a website, not readily visible to the naked eye. It serves as a tool for indexing the website by a search engine. If a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves similar purpose. The Division Bench was unable to accept that using a trademark as a keyword, even if not visible, would not be considered trademark use under the TM Act.
Google placed heavy reliance on the decisions rendered by Courts across jurisdictions of United Kingdom, United States of America, European Union, Australia, New Zealand, Russia, South Africa, Canada, Spain, Italy, Japan and China; in the cases of Google France SARL and Google Inc. v. Louis Vitton SA & Ors.[1], Interflora Inc. v. Marks & Spencer Plc.[2], and L’Oreal SA v. eBay International AG[3] in support of the contention that the use of trade marks is by the advertiser and not by Google. However, the Division Bench rejected Google’s passive role; highlighting its active involvement in recommending and promoting trademark keywords for higher clicks in its Ads Programme. Division Bench referred to a few judicial decisions rendered in the United States of America that captured the essence of the controversy for perspective, concluding that Google actively promotes and encourages trademarks associated with major goods and services, rather than having a passive role.
It was held that the contention that the use of trademarks as keywords, per se constitutes an infringement of the trademark is unmerited; the assumption that an internet user is merely searching the address of the proprietor of the trademark when he feeds in a search query that may contain a trademark, is erroneous.
The Doctrine of 'Initial Interest Confusion' addresses trademark infringement based on pre-purchase confusion. The doctrine is applied when meta-tags, keywords, or domain names cause initial confusion similar to a registered trademark. If users are misled to access unrelated websites, trademark use in internet advertising may be actionable and reliance was placed on US precedents. Referring to Section 29 of the TM Act, it was directed that Section 29 does not specify the duration for which the confusion lasts but, even if the confusion is for a short duration and an internet user is able to recover from the same, the trade mark would be infringed and would offend Section 29(2) of the TM Act.
It was held that the Ads Programme is a platform for displaying advertisements. Google, being an architect and operator of its own programme makes it an active participant in the use of trademarks and determining the advertisements displayed on search pages. Their use of proprietary software makes them utilize trademarks and control the distribution of information related to potentially infringing links, ultimately leading to revenue maximization. Hence, a substantial link exists between Google LLC and Google India, rendering it impossible for Google India to deny its role in operating the Ads Programme. It was further held that Google sells trademarks as keywords to advertisers and encourages users to use trademarks as keywords for ads. It is contradictory for Google to encourage trademark use while claiming data belongs to third parties for exemption. After 2004, Google changed policies to boost revenue and subsequently, introduced a tool that searches effective terms, including trademarks. Google's active involvement in its advertising business and online nature does not necessarily qualify it for benefits under Section 79 of the IT Act. The Division Bench agreed with the view of the Single Judge that Google would not be eligible for protection of safe harbour under Section 79(1) of the IT Act, if its alleged activities infringe trademarks.
Conclusion
This is a seminal decision governing (and rather, restricting) the operations of intermediaries and redefining the jurisprudence of safe harbour under the IT Act. The decision is well-reasoned and establishes a significant precedent for safeguarding trademarks by uniquely holding Google accountable under its Ads Programme. The same will prevent usage of tradenames as a third-party trademark in keyword search or metatags by advertisers on Google’s search engine. While keywords and meta-tags have different levels of visibility, their purpose is similar i.e. advertising and attracting internet traffic. The use of trademarks as meta-tags by a person who is neither a proprietor of the trademark nor permitted to use the same leads to confusion amongst public at large due to the automated processes of search engines and consequently, constitutes trademark infringement.
About the Authors: Mayank Grover is a Partner and Pratibha Vyas is an Associate at Seraphic Advisors, Advocates & Solicitors
[1] C-236/08 to C-238/08 (2010) [2011] All ER (EC) 41
[2] [2014] EWCA Civ 1403
[3] 2C- 324/09 (2010)
Environment and Sustainable Development – A Balanced Approach - Nayan Chand Bihani
The debate between protection of the environment and sustainable development is an age old one and is growing in proportion with every passing day all over the world, in general and specifically with respect to developing countries like India, in particular.
The Stockholm Declaration on the Human Enviornment,1972 categorically stated that man is both the creator and the moulder of his environment, which gives him physical sustenance and affords him the opportunity of intellectual, moral, social and spiritual growth. In the long run and tortuous evolution of the human race on this planet a stage has been reached when through the rapid acceleration of science and technology man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspect of man’s environment, the natural and the man-made, are essential to his wellbeing and to the enjoyment of basic human rights-even the right to life itself. It also states that the protection and improvement of the human environment is a major issue which affects the wellbeing of peoples and economic development throughout the world, it is the urgent desire of the people of the whole world and the duty of all the Governments. The Declaration, in Principle 2, states that the natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural eco-systems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. It further, in Principle 8, states that economic and social development is essential for ensuing a favourable living and working environment for man and for creating conditions on earth that are necessary for the improvement of the quality of life.
A milestone in this field is the Rio Declaration on Environment and Development, 1992. It, interalia, states that human beings are at the centre of concern for sustainable development and that they are entitled to a healthy and productive life in harmony with nature. It also states that the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. It states that in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it and that to achieve sustainable development and a higher quality of life for their people, States should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies. It contemplates that the States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply. The Declaration states that in order to protect the environment, the precautionary approach shall be widely applied by the states according to their capabilities and that environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.
Initially, the trend was to use ‘Polluter Pays’ principle and punish the offending unit. Subsequently, vide judicial decisions, the principle of sustainable development was widely applied so as to balance the two principles.
The Polluter Pays principle talks about the liability of the polluter. With the increase in the industrial development what subsequently also increased is the waste emitted out of these industries and as a result of these wastes not only were the immediate surroundings adversely affected but also the environment at large. There is no specific definition of the Polluter Pays principle, rather it is a practice emphasising on the fact that one who pollutes the environment should be held accountable and responsible for the same with consequential steps to be taken. The principle not just focuses on punishing the polluter but its main criterion is to ensure that the polluted environment returns back to its original state. The reason behind it is to promote ‘Sustainable Development’. Thus it can be summed up that Polluter Pays principle is an essential element of sustainable development. Therefore, whosoever causes pollution to the environment will have to bear the cost of its management. The principle imposes a duty on every person to protect the natural environment from pollution or else he will be responsible for the cost of the damage caused to the environment. The main reason behind imposing a cost is two folds. Firstly, to refrain any person from polluting the environment and secondly, if in the case there is pollution then it is the polluter’s duty to undo the damage. Hence, both of the above ensures that there should be sustainable development. It is pertinent to mention that the Polluter Pays principle is not a new concept. It was first referred to in 1972 in a Council Recommendation on Guiding Principles Concerning the International Economic Aspects of Environmental Policies of the Organisation for Economic Co-operation and Development. The same is also enshrined in Principle 16 of the Rio Declaration, which states that ‘the polluter, in principle, bear the cost of pollution.’ The need of the hour is a demonstrable willingness to adhere to the essence of the principle in order to ensure that there is development, but not at the cost of causing environmental degradation.
The Hon’ble Supreme Court of India in the case of Indian Council for Enviro-legal Action vs Union of India reported in LQ/SC/1996/358, interalia, putthe absolute liability upon the polluter for the harm caused to the environment.
The Hon’ble Supreme Court of India in the case of Vellore Citizens Welfare Forum vs Union of India, reported in LQ/SC/1996/1368, interalia, accepted the Polluter Pays Principle as a part of the Article 21 of the Constitution of India and also emphasised Article 48A and Article 51A(g) of the Constitution of India.
The Hon’ble Supreme Court of India in the case of Amarnath Shrine reported in LQ/SC/2012/1121, has categorically stated the right to live with dignity, safety and in a clean environment.Article 21 of the Constitution of India, guaranteeing the right to life is ever widening and needs to maintain proper balance between socio-economic security and protection of the environment.
The Hon’ble Apex Court in the case of Bombay Dyeing and Manufacturing Co Ltd- vs – Bombay Environmental Action Group reported in LQ/SC/2006/206, interalia, states that the consideration of economic aspects by Courts cannot be one and it depends on the factors of each case. However, strict views ought to be taken in cases of town planning and user of urban land so as to balance the conflicting demands of economic development and a decent urban environment. Ecology is important but other factors are no less important and public interest will be a relevant factor.
The Hon’ble Supreme Court in the case of Dahanu Taluka Environment Protection Group –vs- Bombay Suburban Electricity Supply Company Ltd reported in LQ/SC/1991/157, has held that it is primary for the Government to consider importance of public projects for the betterment of the conditions of living of people on one hand and necessity for preservation of social and ecological balance, avoidance of deforestation and maintenance of purity of atmosphere and water from pollution and the role of the Courts is restricted to examine the whether the Government has taken into account all the relevant aspects and has not ignored any material condition.
The Hon’ble Supreme Court of India in the case of Narmada BachaoAndolan vs Union of India reported in LQ/SC/2000/1509, interalia, reiterated the Polluter Pay Principle.
A milestone case is that of M C Mehta vs Union of India reported in LQ/SC/2004/397, wherein the Hon’ble Supreme Court explained the Precautionary principle and the principle of Sustainable Development. It was, interalia, stated that the development needs have to be met but a balance has to be struck between such needs and the environment. The Hon’ble Supreme Court also reiterated similar views in a series of cases, some of which are stated hereinbelow;
LQ/SC/2007/1421
- M C Mehta vs Union of IndiaLQ/SC/2009/1231
- Tirpur Dyeing Factory Owners Association vs Noyyal River Ayacutdars Protection Association &Ors.LQ/SC/2009/1891
An interesting question came up before the Hon’ble Supreme Court with regard to the setting up of nuclear power plants with regard to the possibility of considerable economic development weighed against risk of feared radiological hazard. The Hon’ble Apex Court in the case of G.Sundarrajan –vs- Union of India reported in LQ/SC/2013/536, interalia, held that the Courts will be justified to look into the aspect as to the opinions of experts and the adequacy of safety measures and will be justified to look into the safety standards being followed by the Nuclear Power Plant.
The Hon’ble Supreme Court, in the case of Lal Bahadur vs State of UP reported in LQ/SC/2017/1384, interalia, emphasised the importance of striking a balance between the two principles.
An important development is the advent of the National Green Tribunal which has the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and relates to the Acts specified in Schedule I, namely the Water (Prevention and Control of Pollution) Act, 1974, the Water(Prevention and Control of Pollution) Cess Act, 1977, the Forest Conservation Act, 1980, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public Liability Insurance Act, 1991 and the Biological Diversity Act, 2002. The National Green Tribunal, since its inception, has been looking into the aspects of environmental pollution and the mitigation thereof.
It can thus be said that both the environment and development are essential in the modern world for the betterment and living standards of the people. However, rampant and unplanned development at the cost of the environment is not to be entertained and the Courts will keep a close watch into the aspect of sustainable development, interalia, based on the criteria and guidelines, as specified.
Nayan Chand Bihani is a practising advocate at Calcutta High Court. Mr. Bihani pursued his LL.B from the Calcutta University College of Law, Hazra Campus and was enrolled as an Advocate in December,1998. Mr. Bihani deals mainly with Writ petitions, specially in Environmental laws, Election laws, Educational laws, Municipal laws, Service laws and Public Interest Litigations. He also represents several authorities like the West Bengal State Election Commission, the West Bengal Pollution Control Board, the State of West Bengal, several Educational Institutions and Universities and several Municipalities and Municipal Corporations and the Odisha Pollution Control Board. He can be contacted at nayanbihani@gmail.com.
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