Read order: Union Territory of J&K vs. Shahnaza Parveen & Ors
Pankaj Bajpai
Srinagar, August 31, 2021: While opining that the Letters Patent Appeal under Clause 12 of the Letters Patent is not maintainable, the Jammu & Kashmir High Court ruled that all the orders passed in proceedings for contempt are of interlocutory nature which does not determine any right or issue between the parties.
The observation came to be passed in light of the direction sought before the court to conclude the process of selection for appointment of Rehbar-i-Taleem, and to bring it to its logical end by initiating proceedings for contempt.
The instant Letters Patent Appeal came to filed by B. K. Singh, IFS, Administrative Secretary to Government, Department of School Education, J&K, challenging the orders passed by the Single Judge dealing with a contempt petition, by contending that the contempt proceedings were wholly without jurisdiction inasmuch as the scheme for appointment on the post of Rehbar-i-Taleem has been abandoned by the Government in the year 2018.
It was further contended that the selection for the post under the said scheme could not be concluded as the contempt proceedings have been initiated beyond the period of limitation of one year prescribed and as such are barred by time.
Opposing the same, it was argued that the appeal u/s 19 of the Contempt of Courts Act 1997 lies only against the order of punishment for contempt of court and not otherwise. It was further argued that Letters Patent Appeal is maintainable only against the final judgment and not against the interlocutory orders which do not decide any right of the parties.
The High Court noted that though the basic order against which contempt had been filed is dated February 12,2015, but it relates back to the order dated August 5,2011, wherein for the first-time directions were issued to the official respondents to conclude the selection process in accordance with the rules and guidelines governing the matter.
The scheme for appointment of Rehbar-i-Taleem has been done away with in the year 2018, meaning thereby that it remained in operation up to 2018. There appears to be prima facie no justification for not implementing the orders of the court so as to complete the process of selection during the period 2011 to 2018 or even from 2015 to 2018, observed the Court.
Quoting the decision of Midnapore People’s Cooperative Bank Ltd. vs. Chuni Lal Nanda wherein it was held that under Clause 12 of Letters Patent, an appeal would lie to the Division Bench only from the “judgment” of the Single Judge passed in exercise of original jurisdiction, the Division Bench opined that intermediary and interlocutory orders passed during the course of the proceedings which do not determine any right or issue between the parties cannot be said to be a “judgment” amenable to available jurisdiction of the Division Bench under Clause 12 of the Letters Patent.
Hence, the High Court dismissed the Letters Patent appeal as not maintainable.
Read judgment: Gauri Devi vs. State of J&K
Pankaj Bajpai
Srinagar, August 31, 2021: While discharging the petitioner for commission of offences u/s 306 IPC, The Jammu & Kashmir High Court has ruled that mere refusal to repay the loan cannot in any way can be considered to be an act of abetment to drive the deceased to commit suicide.
The Single Bench of Justice Rajnesh Oswal observed that in order to constitute an offence of abetment, the act committed by the accused must be of such nature so that the deceased must be left with no other option but to take the extreme step of ending his life.
The observation came pursuant to a plea filed by the petitioner challenging the registration of FIR for abetment of suicide of her son-in-law.
The background of the case was that the petitioner, Gauri Devi had borrowed money from one Shyam (deceased), who himself had borrowed money from few persons. When the lenders started to harass him, Shyam asked the petitioner to return the money leading to verbal altercation between the two.
Subsequently, deceased said that he would kill himself in case the petitioner did not clear her dues towards him. On this, the petitioner told that she had no money to return, which prompted the deceased to take the extreme step by inflicting injury with a knife in the chest.
Resultantly, an FIR came to be registered against the petitioner at Police Station Nowabad, Jammu, for offence u/s 306 of the IPC, leading to framing of charges by the ADSJ, Jammu.
The High Court found that the deceased committed suicide when the petitioner refused to return the amount of Rs. 73,000/- to the deceased, which she had taken from GhanShyam, who happens to be her son-in-law.
In order to charge a person for commission of offences u/s 306 IPC, there must be evidence on record that the accused abetted the commission of suicide by the deceased, added the Court.
Now, answering as to whether the allegations against the petitioner constituted an offence u/s 306 IPC, Justice Oswal opined that one can be charged for the offence of abetment only when he instigates any person to do that thing intentionally or engages with one or more other person in conspiracy for the doing of that thing or intentionally aids, by any act or illegal omission, the doing of that thing.
Hence, the High Court set aside the order passed u/s 306 IPC, opining that the ingredients of offence u/s 306 of the IPC were absolutely lacking and the Trial Court had not considered this vital aspect of the case.
Read order: Ramdas Tureha vs. State of U.P. and Another
Pankaj Bajpai
Prayagraj, August 31, 2021: While declining the application seeking summoning of witness after the trial stage, the Allahabad High Court has ruled that powers u/s 391 of the CrPC to take additional evidence by the Appellate Court is of a discretionary nature and are to be exercised sparingly and only in suitable cases.
The Single Bench of Justice Yogendra Kumar Srivastav observed that Section 391 of the CrPC empowers the court to admit additional evidence at the appellate stage, if it considers that such additional evidence is necessary, notwithstanding that, such power to be exercised is of a discretionary nature and cannot be utilized to fill up gaps and lacunae in the evidence.
The point of dispute in the instant case pertained to the fact that an application was moved by the applicant seeking invocation of the provisions under section 391 of the CrPC for summoning certain persons as witnesses and recording of additional evidence by the appellate court.
This was done pursuant to the framing of charges by the Trial court against him u/s 419 & 420 of IPC for being guilty of concealing his original caste while contesting the panchayat elections. This application was rejected by the ADSJ, Hathras District.
While rejecting the application, the Additional District and Sessions Judge had said that despite the lapse of more than five years the appeal was not being argued and the application seeking summoning of witnesses had been filed only with a view to delay the proceedings. The order also recorded that the applicant had not moved any application for summoning of the additional witnesses during the course of the trial.
The Trial Court had acquitted the applicant from the charges u/s 467, 468 and 471 of the IPC observing that though the applicant had misrepresented his caste in the nomination form but he had neither utilized the caste certificate nor had he appended the same along-with the nomination form.
After considering the issue, Justice Srivastav noted that the appellate court’s power to receive additional evidence u/s 391 of the CrPC fell for consideration in Rambhau and Another vs. State of Maharashtra wherein it was held that the powers under the section being in the nature of an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice.
The nature, scope and object of the powers to be exercised u/s 391 of CrPC was also examined in Zahira Habibulla H. Sheikh & Anr vs State Of Gujarat & Ors wherein it was held that though under the provision a wide discretion has been conferred, the powers could not be exercised for filling up any lacunae and the appellate court while directing taking of additional evidence was required to record reasons for the same, added Justice Srivastav.
Accordingly, the High Court held that the powers u/s 391 have been held akin to those under Order XLI Rule 27 of the Code of Civil Procedure, 1908, and in view thereof additional evidence cannot be tendered at the appellate stage as a matter of right and the power to be exercised by the appellate court is to be based on discretion, sound judicial principles and in the interest of justice.
The test to be applied is as to whether the evidence sought to advanced is essential for a just decision of the case, added the Court.
Therefore, opining that the application filed u/s 391 seeking to summon the persons who are stated to have issued the caste certificate, as witnesses, may not have any material bearing on the outcome of the pending appeal, the High Court refused to exercise its inherent jurisdiction u/s 482 of the CrPC.
Read Order- Bahadur Singh VS. State of Punjab and Another
LE staff
Chandigarh, August 31, 2021: The Punjab and Haryana High Court has recently directed the Home Secretary, Punjab Government, to release the petitioner(convict) forthwith, if he qualifies for the remissions in accordance with the judgments of the Supreme Court in Nalamolu Appala Swamy and Others versus State of Andhra Pradesh and D. Ethiraj versus Secretary to Govt. and Others.
Herein, the petitioner sought for issuance of writ in the nature of mandamus/certiorari declaring that the petitioner had undergone the sentence awarded to him and his further detention in the jail was illegal.
In this matter, the petitioner had faced trial pursuant to an FIR registered at Police Station Sadar Mansa, under Section 15 of the NDPS Act, 1985, and was sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs.1,50,000/- and in default of payment of fine, the petitioner was further awarded rigorous imprisonment for a period of 3 years.
The criminal appeal filed by the petitioner was dismissed by this Court. The petitioner has been currently undergoing his sentence in District Jail, Barnal.
It was mainly contended from the petitioner’s side that out of 12 years of sentence the petitioner had already undergone more than 11 years of actual sentence and he was entitled to certain remissions which made him entitled for release, however, the State had not granted him the remissions which he was entitled to and therefore, the petitioner has been continuing to serve his sentence.
As per the affidavit of the Superintendent, District Jail, Barnala, it was stated therein that the petitioner was initially lodged in Central Jail, Bathinda from August 1,1997 to November 8,1998 as an under trial and then lodged as convict from November 9,1998 to July 8,2000.
It was stated that the petitioner was given the benefit of Governor Policy of remission of April 8,1999 and May 11,2000 as he was in jail during the said period.
It was further stated in the affidavit that since the petitioner was granted bail by this Court from July 9,2000 to January 8,2012 and therefore, he could not be granted the benefit of remissions of the Policies of the Governor of year 2001 to 2006 as he was on bail, as the policy laid down a condition that a person who is confined in jail can only avail the remissions.
The petitioner’s counsel relied on the judgment of the Apex Court in Nalamolu Appala Swamy (Supra) wherein the Court had directed the State Government to consider the matter afresh without reference to the fact that the appellants were not in jail on the date the Government Order was issued.
Another judgment relied on by the petitioner was of the Top Court in D. Ethiraj (Supra) wherein it was observed that the Court has to consider the actual period of sentence undergone by the prisoner and whether by reason of the period actually undergone, the prisoner qualifies for remission.
On the contrary, from the State’s side it was contended that since the petitioner was on bail, as per the policy of the State dated April 13,2001, the petitioner could not be granted the remissions as he was on bail. It was further submitted that the total sentence including the remission came out to be 10 years 9 months and 24 days as on January 30,2020.
Now deciding upon the petitioner’s grievance, the Bench of Justice Arvind Singh Sangwan found merit in the present petition, in view of the judgments of the Apex Court in Nalamolu Appala Swamy (Supra) and D. Ethiraj (Supra), that the State cannot deny the benefit of remissions to the petitioner as per policies for the period he remained on bail.
The Court has also directed the Home Secretary to pass afresh order within a period of three weeks.
Read Order: Tejinder Singh Rana and another VS. State of Haryana and others
Tulip Kanth
Chandigarh, August 31, 2021: The Punjab and Haryana High Court has recently ruled that no infirmity much less illegalities can be found in Clause 8(ii) of the Land Pooling Scheme which was notified in the Haryana Government Gazette for the development of industrial infrastructure.
“The petitioners do not have any legal enforceable right to challenge the Clause or to challenge the rejection of their request for land pooling, specially when they did not opt for the same in time,” said the Bench of Justice Jaswant Singh and Justice Girish Agnihotri.
Two writ petitions had been jointly filed by Tejinder Singh Rana and Narinder Singh Rana with a prayer for issuance of a writ in the nature of certiorari for quashing Clause 8(ii) of the Land Pooling Scheme to the extent it limits the option for land owners to apply within sixty days of issuance of notification, and when period available for announcing the award is at least four months, being irrational and arbitrary.
The petitioners also sought quashing of a letter whereby petitioners’ application for permission to apply under the Scheme, had been rejected.
It was the pleaded case of the petitioners that a notification under Section 4 of the Land Acquisition Act 1894, was issued on April 1, 2010, for acquiring approximately 3302 acres of land (including the land of the petitioners). On April 4, 2011, Notification under Section 6 was issued and the award in the present case was announced on April 1, 2013.
However, later the petitioners made a request that their entire remaining land be put in with Scheme/Policy of the Department.
The petitioners had contended in their written representation that due to pendency of their writ petition of 2013, they had not submitted their case for land Pooling, as they were hopeful that their writ petition would be allowed and their entire land would be released from acquisition. They had also pointed out that they had not withdrawn the amount of compensation (which is lying with the State of Haryana/LAC).
The Division Bench was of the view that it could not be disputed that the purpose of the Scheme would be frustrated, if the land owners were allowed to opt for the same after the announcement of the award qua those who have opted for the Scheme, a separate award as per the Scheme was announced.
While dismissing this Writ Petition, the Court observed that the petitioners exercised their right to challenge the compulsory acquisition but having chosen to do it, they could not now claim it as a right to allow them to apply for Land Pooling Scheme under the Notification dated August 14,2012 after many years of the date of the award dated April 1,2013.
However, the Court found that in the present case the petitioners after the Scheme dated August 14,2012, did not opt for the land pooling till the award was passed on April 1,2013. Still further in 2013, they instead of opting for land pooling, had decided to challenge the acquisition and the award by way of filing writ petition in this Court.
The object and intent of the Scheme and the R & R (Resettlement and Rehabilitation) Policy(dated November 9,2010) when examined carefully, clearly shows that the object of both, are distinct and different. R & R Policy comes into picture after the acquisition proceedings are completed, whereas, the Scheme relates to pre-acquisition stage (before announcing of the award). Under the Scheme, the persons who opt for Scheme, are given developed land instead of compensation, opined the Court.
Read Order: Arjun Bhanot Vs. State of Punjab and another
LE Staff
Chandigarh, August 30, 2021: The Punjab and Haryana High Court has directed a CBI probe into an alleged fraud case, wherein, some bank officers and others in connivance with the accused persons Rakesh Kumar Bhanot and Arjun Bhanot, who were Directors of M/s Arjun Mal Retail Holding Pvt. Ltd, had cheated the complainant to the tune of Rs.2 Crores.
It was alleged that this cheating was done by misusing the cheque of the complainant, Gurdas Agro, and by transferring the amount via RTGC in the account of M/s Arjun Mal Retail Holding Pvt. Ltd, Phagwara.
The accused appellants had filed the petition, under Section 438 read with Section 482 of Code of Criminal Procedure, 1973, for grant of anticipatory bail, who apprehended their arrest by the Police.
This petition was filed pursuant to an FIR, which was registered at Police Station Kotwali, District Bathinda, pertaining to Sections 420, 465, 467, 468, 471, 120-B and 201 Indian Penal Code, 1860.
As per the allegations, the security cheque of the complainant was forged to transfer a sum of Rs.2 crores from the complainant’s account to the account of M/s Arjan Mall Retail Holding Private Ltd. and the alleged crime was committed by bank officials in connivance with the petitioners (directors of the beneficiary company).
The petitioners pointed out that this transaction dated December 13, 2013 was well within the knowledge of the complainant, who voluntarily signed the instrument and the FSL report in this regard was also in favour of the petitioners.
The Bench of Justice Manoj Bajaj highlighted the agony faced by the complainant, who had been repeatedly contesting frivolous petitions for the last seven years and also stated that the petitioners had successfully delayed the investigation with the aid of the police officials.
Throwing light on the procedural aspect of the case, the Court noted that after registration of FIR, it is obligatory for the investigating officer to proceed with the investigation in a fair and impartial manner, in order to collect the evidence in relation to the alleged offences and the said evidence leads the investigating officer to identify the accused.
Once sufficient material is collected indicating the involvement of the person in the crime, the said accused is sent to face trial by way of a final report under Section 173(2) Cr.P.C, otherwise in the absence of evidence, the investigating officer would declare the suspect as innocent.
“…the petitioners are deliberately toying with law as well as process of Court either by distorting or concealing facts with an object to defeat the process of prosecution by filing baseless, deceptive and unfair litigation, who are being shielded also by police officials. Consequently, these petitions being devoid of merit deserve to be dismissed with exemplary costs,” the Bench said.
It was made clear by the Court that the conduct of the police officials clearly indicated that they failed to carry out the investigation in a lawful manner. It was also added by the Bench that this kind of improper investigation erodes the public confidence in the rule of law.
Therefore, in order to do complete justice, the Court opined that exceptional grounds existed in this matter for transferring the investigation to Central Bureau of Investigation, by exercising inherent powers under Section 482 Cr.P.C.
Dismissing both these petitions with costs of Rs.5 lakhs each to be deposited with Director, PGIMER, Chandigarh (for poor patients) within a period of two months, the Bench ordered that that pending investigation of this case be handed over to Central Bureau of Investigation immediately.
Read Order : Gurjeet Singh Johar and another v. State of Punjab
Chandigarh, August 30,2021: The Punjab and Haryana High Court has granted anticipatory bail to two accused persons in a case wherein commission of offence of defrauding the complainants of an amount of approximately Rs. 500 crores was alleged.
The allegations pertained to the fact that the Punjab Industrial Development Board had invited proposals for construction of Bus Terminal-cum-Commercial Complex at Mohali and M/s C&C Constructions Limited, Gurgaon was awarded contract for developing and constructing the Mohali Bus Terminal-cum-Commercial Complex.
Later, M/s C&C Constructions Limited, constituted a Special Purpose Company by the name of M/s C&C Towers Limited for undertaking the constructions.
The complainants vehemently contended that a large number of other investors had purchased shops/office spaces in the proposed Air conditioned ISBT, developed by C&C Towers Ltd. and for which they had deposited amounts equivalent to 35% to 90% of the price and were also issued allotment letters wherein they were made to believe that the entire project will be completed by the year 2012 and possession will be handed over to them.
It was alleged that the date of completion used to be extended from time to time without any satisfactory reason. The complainants, realising that they had been defrauded, demanded their money back alongwith 18% interest and also issued notices to them in the year 2017 but to no avail.
The counsel for the petitioners stated that that even if the allegations, as levelled in the FIR, were taken to be correct, still it was at best a case of civil liability which had arisen mainly on account of certain difficulties faced by the construction company in completing the construction within the agreed time frame and that they had no intention whatsoever in defrauding the complainant or others.
It was also submitted that that the conduct of the petitioners in having cooperated with the police during the last 3 years and not having fled from country would rule out any kind of apprehension that the petitioners will flee from justice or that if granted bail, they will abscond.
The Bench of Justice Gurvinder Singh Gill opined that the question as to whether the accused had an intention of defrauding the investors from the very beginning or as to whether such intention developed later on or as to whether they are absolutely not at fault is a matter which can only be decided at the time of trial.
It was clarified by the Bench that this was certainly a case wherein the allegations against the petitioners and other accused pertain to depriving the complainants and other investors of a colossal amount of about Rs.500 crores, which had been collected by the petitioners for the purpose of allotting them shops/office spaces in the much hyped AC ISBT proposed to be constructed at Mohali.
The Court opined that it was not in dispute that the petitioners had associated with investigation and had never been sent behind bars or subjected to custodial interrogation during the last 3 years i.e. ever since the lodging of the FIR except for their formal arrest on July 14,2020 when they were released on their personal bonds.
Further, the Court mentioned that the first petitioner, Gurjeet Singh Johar, is stated to be aged 71 years and the second petitioner Charanbir Singh Sethi is stated to be aged 63 years. Keeping in view the age of the petitioners, the fact that they had been cooperating with the investigation and the challan also stood presented, the Court held that there was hardly any room for sending them behind bars at this stage.
“..in light of the factual position in the instant case wherein charge sheet has been presented and the accused have not been sent behind bars during the last 3 years when they had been cooperating with the investigation, the petition merits acceptance and is hereby accepted”, opined the Court.
The Court also directed the petitioners to appear before the Trial Court within one week. Upon their appearance, the Trial Court would release the petitioners on bail subject to their furnishing adequate bail bonds and surety bonds to its satisfaction.
The Trial Court would be at liberty to impose any such condition, as deemed appropriate at the time of accepting bail bonds so as to ensure that the accused appear regularly before the Trial Court, remarked the Bench.
Read order: Harsh Shailesh Shah and Ors v. The State of Maharashtra and Ors
Pankaj Bajpai
Mumbai, August 30, 2021: While releasing the applicants on bail, the Bombay High Court has ruled that the rigors of Section 37 of the NDPS Act does not get attracted when there is no material with the prosecution to reflect that the quantity of contraband seized is commercial quantity.
The Single Bench of Justice Bharti Dangre has observed that the applicants in the present case are not attributed with any antecedents of being involved previously in consumption or use of drugs and psychotropic substance.
Considering their young age where they are in a stage of reformation, they deserve one opportunity by restoring their freedom, nevertheless with a forewarning that if they indulge in such activity in future, the law will not spare them, added the Bench.
Justice Dangre also made it clear that in any case, at the outcome of the trial, if the applicants are found guilty, then they shall undergo the prescribed penalty for indulging in narcotic drugs and psychotropic substance as prescribed under the NDPS Act.
The observation came pursuant to the application filed by two boys Harsh Shah and Neeraj Surana seeking bail in connection with an FIR for offences u/s 20, 21 &25 of NDPS Act, who were found to be in possession of cocaine, ganja and charas.
The counsel for the applicant submitted that there was no compliance with the mandatory statutory provisions of the NDPS Act and that the substance recovered was not even in commercial quantity.
On the other hand, the prosecution pleaded that there was sufficient material collected during the investigation which clearly showed participation of the accused in contravention of the NDPS Act.
The counsel for the State submitted that the present is not a case, where commercial quantity is involved, but there is a likelihood of the same since traces of cocaine is found in the swimming pool in which the accused persons have allegedly thrown cocaine powder at the time of raid.
The report of the Chemical Analyzer records positive result for detection of cocaine in the two samples (1 liter each) drawn from the water from the swimming pool. However, the quantity of cocaine in the water present in the swimming pool was not ascertained, found the High Court.
Moreover, the Court also observed that the panchanama did not record that the cocaine was thrown by any of the Applicant in the swimming pool and, even if it was so done, another moot question would be whether the Applicant could be attributed with the charge of ‘possession’.
Justice Dangre further opined that Section 50 of the NDPS Act applies only in case of search of a person. However, merely if a bag carried by a person is searched without there being a search of his person, Section 50 of the NDPS Act will have no application.
Therefore, the High Court directed the applicants to be released on bail subject to a condition that their involvement in drugs in any manner in future would entail cancellation of the bail, on an application being moved by the prosecution to that effect.
Read order: Pankaj Grover vs. ED
Pankaj Bajpai
Prayagraj,August 30,2021: While rejecting the anticipatory bail application of a socio-economic offender, the Allahabad High Court has said that the offender’s monetary sound condition particularly proceed of crime obtained not by honest working but by deceiving others causes more prone situation for influencing witnesses and other evidences.
The Single Bench of Justice Chandra Dhari Singh observed that in socio-economic offences proceed of crimes are larger and further, offenders are economically sound, therefore, in releasing them on bail/anticipatory bail probability of abscondance not within country but beyond country is more probable.
The observation came pursuant to a plea filed by one Pankaj Grover who was a former director of M/s Surgicoin Medequip Pvt. Ltd. and his father, who were accused of conniving and misappropriation of funds meant for the National Rural Health Mission (NRHM) scheme in Uttar Pradesh. Pursuant to the same, the property which was acquired from the proceeds of crime, came to be attached by the Enforcement Directorate (ED).
From perusal of the voluminous oral and documentary evidence collected during the course of investigation, Justice Singh found that Naresh Grover, Director of M/s Surgicoin Medequip Pvt. Ltd. in connivance with his son Pankaj Grover (present applicant) had been constantly trying to manipulate the records to conceal the “Proceeds of Crime” and had also clandestinely sold off half of the factory property after knowledge of initiation of present proceedings under the PMLA.
Justice Singh therefore opined that the written directions given by Naresh Grover to his son Pankaj Grover, which were recovered during the search clearly established that the said persons in possession or use of the property acquired out of/in lieu of “Proceeds of Crime” in the instant case were prone to encash/sell the same at the earliest opportunity to frustrate the proceedings under PMLA.
“In socioeconomic offences always the court considers monetary position of the accused and amount involved in criminal case. More the accused is economically sound and more the amount involved in criminal case; it cause more the chance of affecting the requirements of criminal justice, more the accused is unfit for bail, thereby, more the chance of refusal to grant bail”, observed Justice Singh.
The High Court noted that a criminal of modern criminality are respected and influential persons with position, status, standing and means thereby, are always in a situation to influence proceeding in investigation and prosecution, tamper with the evidences and pressurize witnesses.
The Court went on to reiterate that crimes are now committed by influential persons belonging to upper class in organized manner after well planning by use of modern gadgets in the course of performance of their official, professional, business activities in which they have expertise.
Economic offenders are only concerned with their personal gain even at the cost of irreparable and serious loss to society, which provided socialization and made him a human being, provided status and position, provided respect and reputation, provided stature and means, added the Court.
Therefore, holding that the status and position of offender provided opportunity to influence investigation and prosecution, the High Court rejected the anticipatory bail application.
Read Order: S.Sekaran v. The State of Tamilnadu represented by its Secretary to Government and ors
Pankaj Bajpai
Chennai, August 30, 2021: In order to curtail the menace of fake journalists, the Madras High Court has directed the State Government to appoint “Press Council of Tamil Nadu” consisting of a team of experienced and reputed journalists, both working and retired, retired Civil servants and Police officials in the rank of IAS and IPS, headed by a retired Judge of the Supreme Court or the High Court, within a period of three months.
The Division Bench of Justice P. Velamurugan and Justice N. Kirubakaran stated that such Council shall have the sole authority to recognise press clubs and journalists associations or unions in the state of Tamil Nadu and it shall not allow or recognize formation or continuation of clubs or unions or associations based on caste, community or state boundaries.
“The biggest threat to media freedom, and right to speech and expression available to journalists, is the multitude of journalists’ associations that have sprung up in Chennai and districts. There is no regulation for these associations. It is said that 10 to 20 part-time journalists come together, float a fancy letter-pad association, and then start issuing identity cards with bold PRESS declaration on payment of anything from Rs 10,000 to Rs 50,000. Part time journalists use these cards to do kattapanchayat or blackmail officials, businessmen and politicians at local levels”, observed the Division Bench.
Therefore, the High Court said that to curb this menace which is fast spiraling out of control, stringent action is required, which if not contained now, anything may happen any time, as PRESS card-holding people are able to pass through security curbs easily almost always.
“One must keep in mind that assassins of our former Prime Minister Rajiv Gandhi himself were able to go close to him, because one of them (Sivarasan) acted out a ‘journalist’ role. Another such crime cannot be ruled out, if this trend of fake journalist continues”, highlighted the Bench.
Opining that a responsible media is necessary to sustain good democracy through dissemination of correct news/information sans sensationalism and committed to national interests, the High Court noted that it is the responsibility of the Government and the recognized/established media organizations to ensure that only good journalists run this news industry and it does not fall into the hands of evil people and anti-national forces, blackmailers and fraudsters.
The Division Bench went on to reiterate that it is a common sight these days to find posh SUV cards with a “PRESS” sticker on the front glass shield and “Human Rights” label on the back glass, being driven by unscrupulous fraudsters masquerading as journalists.
There have been quite a number of instances of such fraudsters being booked by the police after being caught committing heinous crimes under the “PRESS” labeling, added the Bench.
Emphasizing that being the fourth pillar of democracy, journalism must remain clean & strong, the Bench found that the politicians, land sharks, smugglers and even murderers have been seen to be hand in gloves with these “mafia journalists” and these“journalists” have floated fake media associations and unions, enrolling all sorts of anti-social elements as members and issuing them with “PRESS” ID cards, which they in turn use as a money-making device.
Although the DIPR is aware of this but the officials turn a blind eye to avoid any wrath in the hands of those fake journalists, added the Bench.
The High Court therefore directed the State Government not to issue press stickers, I.D cards and other benefits, unless the organization or media house discloses the number of employees, salary steps, TDS details, tax paid to the Government and proof that it sells certain number of copies or has certain viewership.
In addition, the Court said that after the constitution of Press Council of Tamil Nadu, all journalists’organizations shall be kept in the suspended animation, so that the election could be conducted for those organizations under the supervision of Press Council of Tamil Nadu, within a period of six months thereafter.
Justice Velamurugan also said that people aggrieved by the fake news or motivated and agenda-based news could lodge complaints with the Press Council of Tamil Nadu which shall summon the news agency or media house or the reporter concerned and probe the veracity of the complaints.
Depending upon the finding, the Council shall have powers to order the source of the offending news item to carry a rejoinder or apology or publish the response of the de facto complainant prominently, added Justice Velamurugan.
Read Judgment: Pravinsinh Indrasinh Mahida vs. State of Gujarat
Pankaj Bajpai
Ahmedabad, August 30, 2021: The Gujarat High Court has declared the Gujarat Cooperative Societies (Amendment) Act, 2019, as ultra vires to Article 14 of the Constitution of India.
The Amendment Act had deleted the Sugar factories from the list of the specified cooperative societies, calling it to be discriminatory and failing to disclose the object which could be termed as reasonable or in public interest.
While striking down such amendment as manifestly arbitrary, a Division Bench of Chief Justice Vikram Nath and Justice J.B. Pardiwala observed that the differentiation pointed out by the State has no nexus with the object sought to be achieved.
The classification in the present case between the federal and primary societies on the ground of administrative exigency and saving money could be termed as absurd, unreasonable and not in public interest, added the Bench.
The cooperative sugar factories of which the writ applicants are its members are the cooperative societies registered or deemed to be registered under the Gujarat Cooperative Societies Act, 1961.
The writ applicants had come with this writ application pointing out that with a view to wriggle out of the obligation / requirement to delimit the constituency and with a view to see that one voter can cast his vote across all the constituencies, the State Government has enacted the Gujarat Cooperative Societies (Amendment) Act, 2019, by which the Sugar factories came to be deleted from the list of the specified cooperative societies.
It was pleaded that by the deletion of Section 74(C)(1)(v) of the Act 1961 and delimiting the sugar factories by way of the impugned (Amendment) Act, 2019, the independent government officer (Collector) would no longer be conducting the election and the elections may now be held as per the whims and caprice of the respective cooperative societies.
After considering the arguments, Justice Pardiwala said that the argument canvassed on behalf of the State as well as the Federation about the federal societies or primary societies or finance or administrative convenience has no nexus to the object which is sought to be achieved. In fact, the argument of the State leads to a conflict between the object and differentia, which is not permissible.
“We are not at all impressed by the stance of the State that as the Sugar factories are not federal, they have been now kept out of the purview of Section 74C of the Act. The object of the impugned amendment is clearly to save money and overcome the administrative difficulties. This is what the State has said in so many words. The State says that it does not want to spend money behind the election of the Sugar Cooperative and also does not want the administrative staff to be tied up in the election”, observed the Division Bench.
Finding the stance of the State to be mutually destructive, the High Court said that if the stance of the State is that it wanted to remove the Sugar factories because they are primary, as opposed to other being federal, then in that case, the object is the same as the classification.
Justice Pardiwala further went on to observe that the State cannot say that it does not want the Sugar factories and therefore, they are excluded. This cannot be a determining principle.
“If the Government wants to save money and administrative time, then it should consider doing away with Section 74C itself. Why save time and expense in respect of just the Sugar factories? How much expense and time goes in these 13 Sugar societies, as opposed to the remaining which continue to be within the purview of Section 74C? The aforesaid makes the stance of the Government entirely artificial”, observed the Division Bench.
Having regard to the object with which the federal and primary societies were clubbed and put as one class under Section 74C, the High Court said that the onus would shift on the State to show how they are different in relation to the object sought to be achieved, which the State has failed to discharge.
“The fact whether the society may hold the election in a free and fair manner or transparent manner is not relevant because of the salutary provision brought in public interest. On the contrary, Section 74C should have been made more inclusive. It is a remedial measure for the voters. The voters are now being told by the State that they would be left with what the society decides. Why because yours is not a federal society”, observed Justice Pardiwala.
The Division Bench clarified that the classification must be founded on an intelligible differentia, which distinguishes persons or things that are grouped together from others left out of the group and that the differentia must have a rational relation to the object sought to be achieved by the statute.
Justice Pardiwala said that it is true that every differentiation is not discrimination as held in the decision of Samast Gujarat Rajya Mochi Samaj, but at the same time, differentiation must be founded on pertinent and real differences distinguished from irrelevant and artificial ones like the case on hand.
We may not look into the motive of the legislature, but, definitely, the object of the legislation can be looked into, added the High Court.
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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