Read Order: Gurdev Singh alias Debu v. State of Punjab
LE Staff
Chandigarh, August 25, 2021: While dismissing the bail application of a man accused in a narcotics case, the Punjab and Haryana High Court has directed the lower court to conclude the trial in the matter within the next four months saying the accused cannot be denied the right to a free and speedy trial.
The petitioner, Gurdev Singh alias Debu, had sought regular bail for the second time in a case pertaining to an FIR dated July 9, 2015 under Section 22 of the NDPS Act, 1985, Sections 25/54/59 of Arms Act and 399, 402, 382, 420, 467, 468, 471, 120-B of the IPC, registered at Police Station Dehlon, District Ludhiana, Punjab.
The State Counsel opposed the plea by submitting that there was an alleged recovery of one kilogram of contraband Heroin, which falls in commercial quantity, and also one pistol 0.32 bore and two live cartridges from the petitioner, and also that the petitioner has suffered nine other convictions.
“In view of the above, this Court is not inclined to extend the benefit of bail in favour of the petitioner,” said the Bench of Justice Tejinder Singh Dhindsa.
The Bench, however, noted that the petitioner was arrested on 09.07.2015, investigation in the case has been concluded, the chargesheet has been presented and the charges were framed on 08.04.2016.
“Trial is still going on. The right of every accused to a free and speedy trial cannot be denied,” the HC said.
“While dismissing the instant petition seeking regular bail, directions are issued to the trial Court to make an earnest endeavour to expedite the trial and in any case to conclude the same within a period of four months from today,” the Bench said.
Read Order: Jagseer Singh v. CBI And Anr
LE Staff
Chandigarh, August 25, 2021: The Punjab and Haryana High Court has restricted a Special CBI Court in Panchkula from pronouncing till further orders the judgement in a case pertaining to murder charges against self-proclaimed godman Baba Gurmeet Ram Rahim Singh.
The High Court’s decision came in response to a petition filed by Jagseer Singh, son of Ranjeet Singh who was allegedly murdered by Ram Rahim, seeking transfer of the case from the Court of Special Judge, CBI, Panchkula to any other CBI Court in the States of Haryana, Punjab or U.T., Chandigarh.
The transfer has been sought on several grounds including that the case is pending for arguments since December, 2019 and has been adjourned a number of times. Even the Public Prosecutor has been seeking time, the petitioner’s counsel contended.
The senior counsel appearing for the petitioner alleged that everything has been “manipulated” through the respondent No.2 — K.P. Singh, Public Prosecutor for the CBI — and that he has been interfering in the administration of justice and is influencing the entire proceedings.
“Though, some personal oral aspersions are also made against the Special Judge, however, the same are not recorded in this order as those are not stated on oath by the petitioner,” the Bench of Justice Arvind Singh Sangwan noted.
“Learned senior counsel for the petitioner has, thus, submitted that the petitioner has reasonable apprehension that he may not get justice from the Special Judge, CBI Court, Panchkula,” the Bench added.
The High Court thus issued notice to the Presiding Officer/Special Judge, CBI, Panchkula seeking his response and restraining him from pronouncing the judgement in the matter as scheduled on August 26, 2021. The HC listed the case for next hearing on August 27, 2021.
The High Court also directed that the CBI will also file a specific affidavit about the appointment of K.P. Singh, Public Prosecutor for CBI Court at Panchkula, along with his posting order with the reply, if any.
The case here pertains to an FIR dated 10.07.2002 registered under Sections 302, 34, 120-B IPC at Police Station Sadar Thanesar, District Kurukshetra (Haryana) and a case dated 03.12.2003 as per which Ranjeet Singh was murdered by Baba Gurmeet Ram Rahim in 2002.
Gurmeet Ram Rahim Singh already stands convicted for 20 years rigorous imprisonment regarding the allegation of rape of two women followers by a judgement dated 28.08.2017 and also stands convicted for life regarding murder of a Sirsa based journalist Ram Chander Chatterpati, who had published an article in his newspaper, regarding sexual exploitation of Sadhvis in Dera.
According to the petitioner’s counsel in the present case, the accused suspected that Ranjeet Singh was behind the circulation of the anonymous letter in this regard.
Read judgment: Pichra Warg Kalyan Mahasabha Haryana (regd.) & Anr vs. State of Haryana & Anr
LE Correspondent
New Delhi, August 25, 2021: The Supreme Court has ruled that the Haryana Government’s 2016 notification specifying the criteria for exclusion of ‘creamy layer’ within the backward classes, is in flagrant violation of the directions issued by the SC in Indra Sawhney & Others v. Union of India & Others (Indra Sawhney-I) and is at variance with the 1993 memorandum issued by the Union of India.
The criteria mentioned for identifying such of those persons who are socially advanced have not been taken into account by the Government of Haryana while issuing the notification dated August 17, 2016, said the Top Court.
“Strangely, by the notification dated 17.08.2016, the identification of ‘creamy layer’ amongst backward classes was restricted only to the basis of economic criterion. In clear terms, this Court held in Indra Sawhney-I that the basis of exclusion of ‘creamy layer’ cannot be merely economic,” observed the Division Bench of Justice L Nageswara Rao and Justice Aniruddha Bose.
The Bench observed that in spite of Section 5(2) of the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016 making it mandatory for identification and exclusion of ‘creamy layer’ to be on the basis of social, economic and other relevant factors, the State of Haryana has sought to determine ‘creamy layer’ from backward classes solely on the basis of economic criterion and has committed a grave error in doing so.
The observations came pursuant to a challenge against Notifications dated Aug 17, 2016 and Aug 28, 2018 issued by the State of Haryana (1st Respondent), as arbitrary and violative of Articles 14, 15 and 16 of the Constitution of India.
Going by the background of the case, the State Government issued a notification on Aug 17, 2016 specifying that the sections of backward classes earning above Rs. 6 lakh per annum shall be considered as ‘creamy layer’ u/s 5 of the 2016 Act.
Later, students aspiring to be admitted to MBBS course for the academic year 2018-2019 in the quota for backward classes filed writ in the High Court of Punjab and Haryana challenging such notification on the ground of sub-classification of backward classes, with preference in reservation given to a particular section of a backward class group.
The High Court thereon set aside the notification on the ground that the sub-classification of the backward classes was arbitrary and violative of Article 14 of the Constitution of India. The High Court also directed the counselling of students to be held afresh on the basis of the earlier criteria existing prior to the 2016 Act.
The State of Haryana questioned the correctness of the judgement of the High Court before the Apex Court, which was however declined. On the same day, the State Government issued a notification, whereby the criteria for computing annual income were fixed as ‘gross annual income’, which shall include income from all sources.
Accordingly, students who qualified in NEET-2018 and sought admission to MBBS and BDS courses in the backward classes quota, filed writ in the High Court, assailing the legality and validity of the notifications, but in vain.
The present petition was therefore filed seeking a direction to the Respondents to provide reservation to backward classes in Haryana under the Haryana Backward Classes Act, 2016 by considering the existing defined criteria of ‘creamy layer’ by the National Commission for Backward Classes or the criteria used by the State of Haryana prior to the 2016 Act.
After thoroughly examining the factors which were given emphasis in the various opinions rendered in Indra Sawhney-I for determining ‘creamy layer’ amongst the backward classes, the Apex Court held that persons from backward classes who occupied posts in higher services like IAS, IPS and All India Services had reached a higher level of social advancement and economic status and therefore, were not entitled to be treated as backward.
Such persons were to be treated as ‘creamy layer’ without any further inquiry, added the Top Court.
Accordingly, the notification dated Aug 17, 2016, giving liberty to the State Government to issue a fresh notification within a period of 3 months from August 24, 2021 after taking into account the principles laid down by the SC in Indra Sawhney-I and the criteria mentioned in Section 5(2) of the 2016 Act for determining ‘creamy layer’.
Read Judgement: MCNALLY BHARAT ENGINEERING COMPANY LIMITED & ANR vs. ASSISTANT COMMISSIONER OF THE INCOME TAX, CIRCLE 1(1) KOLKATA & 6 OTHERS
Pankaj Bajpai
Kolkata, August 25, 2021: The Calcutta High Court has ruled that the power of the Assessing Officer (AO) under section 241A of the Income Tax Act can be exercised not only after he forms an opinion that the refund is likely to adversely affect the revenue, but after receiving prior approval of the Chief Commissioner or Commissioner.
The High Court held that an order for refund after assessment u/s 143(3) of the said Act pursuant to a notice u/s 143(2) is subject to appeal or further proceeding.
While allowing the assessee’s petition on the claim of refund, the Single Bench of Justice Arindam Mukherjee observed that the very essence of passing of order u/s 241A is application of mind by AO to issues which are germane for withholding refund on the basis of statutory prescription contained in such section.
The dispute in the case arose on account of denial of refund by the Central Processing Centre even though the assessment was completed on returned income.
The refund of the entire tax deducted at source claimed by the assessee was assessed under the provisions of Section 244A. However, the assessee on checking the refund status at the TIN-NSDL website, found a message displaying the thereat, “Your Assessing Officer has not sent the refund to the refund banker, please contact your Assessing Officer.”
The assessed refund was, thus, not refunded to the assessee, and was rather withheld as per provision of Section 241A.
In the instant case, Justice Mukherjee found that after notice for refund was issued, the refund was withheld with no reasons given.
On a combined reading of Section 143 with Section 241A, it can be discerned that by virtue of the new proviso, it is now mandatory to process the return u/s 143(1), and proceed with grant of the refund determined therein, unless sufficient reasons exist u/s 241A prima facie demonstrating that the grant of refund is likely to adversely affect the revenue, opined Justice Mukherjee.
The High Court went on to reiterate that the scope of the power u/s 241A is narrow, making it clear that a speaking order is required to be passed culling out the reasons as to how the grant of refund is likely to affect the revenue.
Observing that recording of reasons to substantiate why such withholding is necessary, the High Court said that the powers under this revenue friendly provision of Sec 241A cannot be used in a mechanical manner without application of mind.
Since refund can be withheld only after recording reasons and obtaining approval of Principal Commissioner or Commissioner, the High Court directed the AO to issue refund to the assessee.
Read Judgement- Saranya v. Bharathi and another
Tulip Kanth
New Delhi, August 25, 2021: Setting aside the judgment of the Madras High Court whereby the entire criminal proceedings against the respondent were quashed, the Apex Court has observed that the High Court while considering the application under Section 482 Cr.P.C., entered into appreciation of the evidence and considered whether on the basis of the evidence the accused is likely to be convicted or not, which was not permissible at this stage of framing of charge.
The appeal in question had been filed by the complainant, wife of the deceased , pursuant to an FIR lodged against the respondent and one other person (first accused) for various offences under the Indian Penal Code pertaining to murder and cheating among others.
It was alleged that the complainant and her husband were introduced to one Vela alias Velayutham, who is the first accused in this case, by the respondent. They were told that Velayutham was employed at Guindy Employment Exchange and if they gave money, he could arrange Government employment for them.
The complainant further asserted that believing him they gave Rs. 4 lakhs to Velayutham who promised that the deceased would get the appointment order. It was also alleged that he had asked them to come to a flat where they were offered some powder claimed to be ‘Prasadam’ which was the cause for her husband’s death and her drowsiness.
Later, when the case was pending for committal before the Metropolitan Magistrate, Egmore, Chennai, the respondent approached the High Court praying for quashing the entire charge sheet and the High Court in exercise of powers under Section 482 Cr.P.C. quashed and set aside the entire charge sheet and the criminal proceedings against her. Hence, the complainant filed this appeal before the Top Court.
The appellant’s counsel mainly contended that despite the fact that there was ample material against the respondent, the High Court had quashed the entire criminal proceedings/charge sheet by entering into the merits of the allegations and appreciating the evidence on record, which at this stage and while considering the application under Section 482 Cr.P.C. was not permissible.
The Bench of Justice D.Y. Chandrachud and Justice M.R.Shah affirmed that quashing the chargesheet against the respondent was not justified. The High Court had evidently ignored what had emerged during the course of investigation.
The Top Court clarified that during the course of the investigation, the investigating officer had collected very important evidence in the form of call details between both accused persons which were in the proximity of the time of commission of offence and even thereafter.
Therefore, when the first accused had been chargesheeted for the offences under Sections 420, 302 r/w 109 IPC and when there was ample material to show at least a prima facie case against the respondent herein, the High Court had committed a grave error in quashing the chargesheet/entire criminal proceedings qua her in exercise of powers under Section 482 Cr.P.C.
“The High Court has entered into the appreciation of the evidence and considered whether on the basis of the evidence, the accused is likely to be convicted or not, which as such is not permissible at all at this stage while considering the application under Section 482 Cr.P.C. The High Court was not as such conducting the trial and/or was not exercising the jurisdiction as an appellate court against the order of conviction or acquittal,” noted the Division Bench.
The Apex Court referred to the judgment in Madhya Pradesh v. Deepak, (2019) 13 SCC 62, wherein it was observed that at the stage of framing of charges, the Court has to consider the material only with a view to find out if there is a ground for presuming that the accused had committed the offence.
Elucidating on this judgment, the Court said, “It is further observed and held that at this stage the High Court is not required to appreciate the evidence on record and consider the allegations on merits and to find out on the basis of the evidence recorded the accused chargesheeted or against whom the charge is framed is likely to be convicted or not.”
The Court also found that the respondent, who was serving in the Secretariat, was in touch with the deceased and the complainant as she used to go to the Xerox shop owned by the deceased and she introduced the first accused to the couple. The Bench noted that there was sufficient material on record raising strong suspicion against the respondent.
Thus, the Top Court has allowed the appeal and has asked the Magistrate to proceed further with the case, in accordance with law.
Read Judgement: ATUL KUMAR v. STATE OF NCT OF DELHI & ANR
Tulip Kanth
New Delhi, August 25, 2021: The Delhi High Court has recently ruled that issuance of a legal notice and filing of a complaint case by the petitioner would not amount to ‘abetment’ to suicide punishable under Section 306 Indian Penal Code (IPC).
“It cannot be said that by filing a criminal complaint against the deceased, the petitioner had the mens rea to instigate or goad the deceased to commit suicide; and further, that the deceased was left with no other option but to commit suicide,” said the Bench of Justice Manoj Kumar Ohri.
This petition had been filed under Section 482 Cr.P.C., on behalf of the petitioner, assailing the order whereby the closure report qua only the petitioner was not accepted.
This case arose out of an FIR, registered under Section 306 IPC, in pursuance of a complaint filed by the complainant (wife of the deceased) against the petitioner, who is a resident of USA, and two police officers, nearly 44 days after the date on which suicide was committed by her husband Arvinder Singh Grewal.
It was stated from the petitioner’s side that he had purchased a vintage motorcycle from the deceased but despite the receipt of complete payment in the year 2012, the deceased did not handover the possession of the vintage motorcycle. The petitioner came to India and on legal advice, had a legal notice issued to the deceased. Later, a criminal complaint for offences punishable under Sections 420/406 IPC read with Section 120B IPC was also filed against the deceased.
The petitioner, thereafter, left India on the intervening night of 5th and 6th December, 2014. On December 9, 2014, the deceased committed suicide and left behind a suicide note naming the present petitioner as the reason for taking the extreme step.
The petitioner submitted that taking legal recourse to one’s remedy, by no stretch of imagination, amounts to abetment. It was also submitted that as the petitioner had left India earlier and the suicide was committed by the deceased on a later date the same cannot be said to be a direct result of any act of the petitioner.
While setting aside the impugned order passed by the Additional Sessions Judge which directed the Trial Court to proceed with the matter, the Court was of the opinion that necessary ingredients of the offence punishable under Section 306 IPC were not made out against the petitioner.
The Bench observed that the transaction between the petitioner and the deceased relating to purchase of a vintage motorcycle is an admitted fact. Whether the motorcycle was delivered to the petitioner or not, would have been established after inquiry.
It cannot be said that by filing a criminal complaint against the deceased, the petitioner had the mens rea to instigate or goad the deceased to commit suicide and further, that the deceased was left with no other option but to commit suicide. Even as per investigation, the deceased was called to the Police Station only once on December 6, 2014 which was three days before he committed suicide, opined the Court.
Also, the acceptance of closure report qua the two police officers by the learned Metropolitan Magistrate and its affirmation by the ASJ, had not been challenged by the complainant and had attained finality.
In the instant case, it was also noteworthy that on the day the deceased was called to the Police Station, the petitioner had already left India a night earlier. Also, from a perusal of the suicide note, it was probable that a portion of it was written on November 28, 2014 and the note was completed on a later date. In this note, the deceased also mentioned that he was mentally disturbed, noted Justice Ohri.
The High Court found that neither any live link nor any proximity between the acts of the petitioner and the act of committing suicide by the deceased was discernible. Furthermore, the requisite mens rea on part of the petitioner was also lacking. It could not be said that the petitioner had abetted or instigated the deceased to commit suicide and that the deceased was left with no option but to commit suicide.
Delving into the law relating to abetment, the Court postulated that to attribute the acts of the petitioner as abetment, there has to be some causal link and proximity of the acts of the petitioner with the deceased committing suicide. It has to be shown that the petitioner did an active act or direct act which led the deceased to commit suicide seeing no option.
“It also has to be shown that the petitioner’s act must have been intended to push the deceased into such a position that they committed suicide. Further, the prosecution has to show that the petitioner had the mens rea to commit the offence,” added the Bench.
Read Order: In Re Alleged Anti-competitive conduct by Maruti Suzuki India Limited
Pankaj Bajpai
New Delhi, August 25, 2021: While taking suo motu cognizance, the Competition Commission of India has imposed a Rs 200 crore penalty on Maruti Suzuki India Ltd. for indulging in anti-competitive conduct of Resale Price Maintenance (RPM) in the passenger vehicle segment by way of implementing Discount Control Policy vis-à-vis dealers.
The Coram of Ashok Kumar Gupta (Chairperson), Sangeeta Verma (Member) and Bhagwant Singh Bishnoi (Member), also directed Maruti to cease and desist from continuing with such conduct.
The present suo motu cognizance was taken by the Commission pursuant to an allegation by a Maruti dealer assailing its anti-competitive sales policy being violative to the provisions of the Competition Act, 2002.
Accordingly, upon receiving direction from the CCI, the Director General (DG) conducted an investigation and found that Maruti had instructed its dealers to not offer discounts to the customers beyond the mandate prescribed by Maruti itself and had also appointed Mystery Shopping Agents (MSA) to keep a serious watch on its discount control policy.
After considering the report by the DG, the Commission found that Maruti had an agreement with its dealers whereby the dealers were restrained from offering discounts to the customers beyond those prescribed by Maruti, i.e. it had a ‘Discount Control Policy’ in place.
The Coram further noted that if a dealer wanted to offer additional discounts, it would need to mandatorily obtain Maruti’s prior approval, and any dealer found violating the Discount Control Policy was threatened with imposition of penalty, not only upon the dealership but also upon its individual persons, including Direct Sales Executive, Regional Manager, Showroom Manager, Team Leader, etc.
To enforce such anti-competitive policy, Maruti had appointed MSA who used to pose as customers to Maruti Dealerships to find out if any additional discounts were being offered to customers, and based on their ‘Mystery Shopping Audit Report’, would impose penalty on the dealership and its employees along with threats of stopping supplies, observed the Commission.
The CCI thus found that Maruti not only imposed the Discount Control Policy on its dealers but also monitored and enforced the same by monitoring dealers through MSAs, imposing penalties on them and threatening strict action like stoppage of supply, collecting and recovering penalty and utilization of the same.
Accordingly, the Commission held that Maruti’s conduct, which resulted in appreciable adverse effect on competition within India, is in contravention of Sec. 3(4)(e) r.w.s. 3(1) of the Competition Act.
Read Judgment: Peter Jagdish Nazareth vs. State Of Gujarat
LE Correspondent
Ahmedabad, August 25, 2021: The Gujarat High Court has upheld the maintainability of petitions challenging the Constitutional validity of specific provisions of the Gujarat Prohibition Act of 1949 claiming them to be ultra vires the Constitution of India as being hit by Articles 14, 19 and 21 thereof.
Noticing that the petitioners have assailed some of the provisions of the 1949 Act on the ground that they violate the Right to Privacy, a Division Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav observed that the Apex Court in the case of Justice K.S.Puttuswamy (Privacy-9J) vs. Union Of India [(2017) 10 SCC 1] for the first time had recognized the “Right to Privacy” of the citizen as a fundamental right.
However, the same has never been tested before in the context of personal food preferences weaved within the right to privacy, added the Bench.
The counsel for the Petitioners contended that the Act, to the extent it makes the provisions with regard to use, consumption and possession of liquors which may consist of or contain alcohol but which are not intoxicating liquors, was beyond the competence of the Provincial Legislature to enact.
On the other hand, counsel for the State opposed the maintainability of the petition by contending that the validity of the entire Act was under challenge, tested and upheld by the Supreme Court in the case of State of Bombay and another vs. F.N. Balsara [AIR 1951 SC 318].
After considering the arguments, the Division Bench found that the provisions which are a subject matter of challenge, are pertaining to prohibition of import, transfer, possession and buying of liquor, consumption and use thereof, prohibition of entry in state of intoxication, prohibition of vendor to sell liquor to anyone except permit holders, permit to use or consume liquor on warships, troopships and in messes and canteen of armed forces and various provisions pertaining to permits.
“The challenge therefore as opposed by the State as being cosmetic in nature and that the substance of challenge has not changed, is a submission not accepted at this stage as the newly added provisions in our opinion are not mere cosmetic in nature but they confer valuable rights,” noted the High Court.
The petitions challenge new provisions like the validity of Section 24-1B and other newly added provisions and therefore the petitions have to be heard on merits and cannot be severed as part maintainable and part not-maintainable, added the Bench.
Further, the Bench reiterated that the submission of the State opposing the maintainability of the petitions on the ground that once some of the provisions are held valid the whole Act is held to be valid as the provisions of the Act are not severable, needs to be examined.
When entirely new sections and the amended provisions of the existing Sections are under scrutiny, the petitioners cannot be ousted on the plea that the whole Act has been held to be valid, added the Court.
Therefore, observing that the petitions cannot be dismissed at the threshold on the ground of maintainability, the High Court listed the matter for final hearing on Oct 12, 2021.
Read Order: Narender v. State Of Haryana
LE Staff
Chandigarh, August 24, 2021: The Punjab and Haryana High Court has made absolute the pre-arrest bail granted earlier to a man who is co-accused in an attempt to murder case apparently because he had lent his car to a neighbour who then shot a man with a gun.
The petitioner, Narender, is facing charges in an FIR dated September 13, 2020 under Sections 307, 34 IPC and Sections 25, 54 and 59 of the Arms Act, 1959, registered at Police Station Rohtak Sadar, District Rohtak, Haryana.
He was granted anticipatory bail during the last hearing of the matter before a coordinate bench of the High Court.
Hearing the plea on August 20, 2021 for making the anticipatory bail absolute, a Bench of Justice Vikas Bahl noted that the petitioner’s counsel had submitted before the coordinate bench that the allegations against the petitioner are that Sonu — who is in prison and a recovery was made from him after he shot a man named Amit with whom he had a money dispute — had borrowed the petitioner’s car on September 13, 2020 account of a medical emergency.
When the car was not returned to the petitioner, he asked for the same and Sonu replied that the car was taken in police custody on account of some traffic violation. The car is registered in the name of mother of the petitioner, his counsel submitted.
The petitioner has been attending the police station repeatedly and there is no overt-act on his behalf in the commission of the offence in any manner, his counsel said.
The Bench of Justice Bahl noted that the petitioner’s counsel submitted that he has joined the investigation and has not been attributed any injury and in fact, the complainant has resiled from his statement.
The State counsel, on instructions from ASI Satish Kumar, has submitted that the petitioner has joined the investigation and is not required any further, the bench further noted.
“Keeping in view the above said facts and circumstances, moreso, the fact that the petitioner has joined the investigation and is not required any further, the present petition is allowed. Interim order dated 27.05.2021 is ordered to be made absolute,” the Bench said.
Read order: In Re ASOK PANDE (Suo-Motu Contempt Petition)
LE Correspondent
Prayagraj, August 24, 2021: The Allahabad High Court (Lucknow Bench) has taken suo motu contempt action against advocate Asok Pandey for using abusive language in Court and terming the judges as ‘goondas’.
A Division Bench of Justice Ritu Raj Awasthi and Justice Dinesh Kumar Singh observed that Pande had committed ex-facie contempt and had a long history of misbehavior inside and outside the court room and committing contempt of the Court.
The dispute arose on August 16, 2021 when the Court took suo motu cognizance in a PIL in respect of the Bar Association Election. When the Court was hearing the Returning Officer and Chairman of the Elders’ Committee of Awadh Bar Association, Pande barged into the court room and came to podium without uniform and started shouting on top of his voice.
When the Court asked him about his capacity to address the Court, he said he was a Member of the Avadh Bar Association and had every right to address the Court. When the Court asked that why he was not in uniform, he said that would not don the advocate’s uniform as he had challenged the Bar Council Rules prescribing the Dress Code for Lawyers.
When the Court warned the advocate of removal from the court premises if he would not behave properly, he used abusive language against the judges and said that the Judges were behaving like ‘goondas’.
Noticing that Pande continued to create unpleasant atmosphere inside the Court and went on to disturb the Court proceedings amounting to interference with the administration of justice and scandalizing the court, the Division Bench called for his removal from the Court Room in order to maintain serenity and decorum of the Court proceedings, dignity of the High Court and majesty of law.
The Bench also ordered that Pande be kept in custody of the court till 3 PM so that he could come to Court and express his remorse and tender unconditional apology to the court for his outrageous behavior.
“A minuscule minority of the Lawyers are bringing disrepute to the noble profession and trying to browbeat Judges and interfere with administration of justice. It is the duty of the Judges and Advocates’ community to uphold the majesty of law and maintain the purity in justice delivery system. The dignity of judges cannot be allowed to be polluted by these disgruntled and publicity seeking persons,” said the Division Bench.
The Bench reiterated that the past conduct of Pande and ex facie contempt committed by him in the court room leave them with no scope other than charging him for committing ex facie contempt of the court.
Besides initiating these contempt proceedings, the High Court also directed the Bar Council of Uttar Pradesh to examine the past conduct of Pande, in order to decide whether such a person is worthy of being part of the noble profession, and take appropriate disciplinary proceedings against him.
Read Judgement: Kanhaiya Awasthi Thru Next Friend Shivangi Awasthi v. U.O.I. Thru Secy. Home Affairs New Delhi & Ors
Tulip Kanth
Lucknow, August 24, 2021: The Lucknow Bench of the Allahabad High Court recently quashed the detention order passed under Section 3 (2) of the National Security Act (NSA) against Kanahaiya Awasthi, an accused in the murder case of journalist Subham Mani Tripathi.
“Accordingly, there was cumulative delay in disposal of the representation of the petitioner by the District Magistrate, Unnao as well as Central Government. Thus, having regard to the nature of detention and rigor of law, we are of the view that there was disproportionate delay at both the ends,” reasoned the Bench of Justice Ramesh Sinha and Justice Saroj Yadav.
“Suffice is to hold that even though there is no fixed period of time for disposal of representation, the underlying message in the law is that all the concerned authorities, who are empowered to issue, approve or revoke detention orders, are duty bound to consider and dispose of the representations as expeditiously as possible. By now, it is also the settled principle of law that even if some delay in consideration of the representation may not become fatal to the detention but non-explanation of the same would certainly impeach the detention order,” added the Court.
The petitioner was arrested and detained in judicial custody pursuant to an F.I.R. being lodged by the brother of the deceased alleging that the journalist, who was a district correspondent of a news daily published from Unnao, was murdered by the petitioner and other co-accused persons.
Later, the District Magistrate, Unnao, on considering the recommendation of the sponsoring authority, invoked provisions of the N.S.A. and passed the order of detention which has been impugned in the instant Habeas Corpus Petition.
The detenue filed his representation to the Uttar Pradesh Advisory Board (Detention), Lucknow, Secretary (Home), Union of India, as well as the Secretary, Department of Home, State of U.P. The State Government then confirmed the detention order and later extended the period of detention tentatively for six months from the actual date of detention i.e. since September 6, 2020.
Challenging the impugned order, it was argued by the counsel for the detenue that the proceedings recommending invocation of N.S.A. had been initiated by the sponsoring authority much belatedly, after two and half months of the alleged solitary incident of murder, which itself created a doubt on the veracity of the entire proceeding for invocation of preventive detention under N.S.A.
It was also contended that there was an inordinate and unexplained delay in adjudication of the representation of the detenue by the Central Government, hence constitutional safeguard provided to the detenue under Article 22 (5) of the Constitution had been violated.
Allowing the Habeas Corpus Petition, the High Court opined that both the District Magistrate, Unnao and the Central Government were at fault. The detenue had submitted a representation on September 22, 2020 but the District Magistrate, Unnao took nine days in forwarding the same to the State Government and Central Government and there was no explanation on behalf of the District Magistrate in forwarding the petitioner’s representation beyond nine days.
According to the Division Bench, this procedural lacuna resulted in loss of nine days in forwarding the representation of the detenue by the District Magistrate. Moreover, it was also noted that the Central Government though has received the petitioner’s representation on October 5, 2020 but it could only be processed on October 14, 2020 when it was placed before the Under Secretary and the reasons for such a delay or day to day explanation in dealing with the file had not been made in the affidavit.
Furthermore, the file relating to the petitioner’s representation reached the office of Joint Secretary and, thereafter, report was sought from Central Agency and in doing so, 13 days time was taken by the Agency and no explanation was provided for this delay as well.
The High Court further noted that it is true that neither Article 22(5) of the Constitution nor N.S.A. has prescribed time limit for consideration of representations.
However, the Bench mentioned that if one looks at various provisions of N.S.A., prescribing specific periods for furnishing grounds of detention, approval of the detention by the State Government, submitting report to the Central Government and Advisory Board, the period prescribed for considering the detention order and representations by the Advisory Board, etc. the intention of the legislature can safely be inferred that representations of detenues have to be considered with all promptitude.
Accordingly, the Bench was of the view that there was delay in forwarding the petitioner’s representation on the part of the District Magistrate, Unnao and also delay in disposal of the petitioner’s representation on the part of Union of India, had substance and on this count, the impugned detention order was quashed.
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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