An attack on independence of judiciary : analysing recent attacks on judges in Bihar

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November 30, 2021

This article is authored by Akash Krishnan, a student from ICFAI Law School, Hyderabad. It discusses in detail the recent attack on a Sessions Judge in Bihar and the applicable penal provisions in this regard.

Table of Contents

Introduction

Judiciary is one of the most important pillars of a democratic society and the smooth functioning of the judicial mechanism is necessary to ensure that justice prevails at all costs. Imagine a world where judges are mere pawns of the people in power or a world where the judges are afraid to take the right decision because of threats to their life. This situation might become a reality if the judiciary and the judges are not protected against deterring external factors.

Recently, a Sessions Judge in Bihar was attacked by two policemen inside the courtroom while the court was in session. What is more shocking in this case is that the enforcers of justice had attacked the protectors of justice. With this background in mind, let us try and understand what happened in this case and which penal provisions are attracted for such heinous acts.

Attack on the Sessions Judge in Bihar

On 18^th November 2021, two policemen entered the courtroom of the Additional District and Sessions Judge of Jhanjharpur, Bihar, Mr. Avinash Kumar and attacked him. It is also alleged that the policemen pointed a gun at him during the incident. It is further alleged that the two policemen also attacked and injured the advocates and the courtroom officials who came to the defence of the Sessions Judge. The two policemen have been identified as the Station House Officer of the Jhanjharpur police station, Mr. Gopal Krishna and a sub-inspector of the same police station, Mr. Abhimanyu Kumar. It is pertinent to note that no serious injury had been caused to the Sessions Judge or any of the advocates and courtroom staff.
In light of this incident, the Hon’ble High Court of Bihar took suo-moto cognizance of the matter and issued a direction to the Director-General of Police of Bihar to file a status report within 10 days at the next scheduled date of the hearing, i.e., on November 29^th 2021.
The brief order passed by the Court termed the incident as unprecedented and shocking and called it an attack not only on the Additional Sessions Judge but also on the independence of the judiciary. In light of the same, the Court had ordered for the imprisonment of the 2 police officers till the next hearing. However, it is pertinent to note that the reason behind the attack has not been revealed yet.
In an immediate response to the attack, the Vice President of the Bar Association of Jhanjharpur termed the incident as an attempt to suppress the judiciary. He also questioned the role of the District Superintendent of Police (DSP) in this regard because the Additional Session Judge had on multiple occasions criticised the actions taken by the DSP. The lawyers of the Bar Association demanded a judicial inquiry and threatened to agitate if the judicial inquiry was not conducted.

Now that we have understood the background of the case, let us try and understand which penal provisions of the law are applicable to the present case.

Penal provisions involved

Contempt of Courts Act, 1971

Criminal contempt

Section 2(c) of the Contempt of Courts Act defines criminal contempt. It means the publication of any material or the doing of any act which:

Scandalises or lowers the authority of any court.
Is prejudicial to the proceedings of any court.
Interferes or tends to interfere with the proceedings of any court.
Obstructs or tends to obstruct the administration of justice in any manner.

The term scandalising the authority of the court was explained in the case of Hari Singh Nagra v. Kapil Sibal (2010). The Supreme Court observed that the term scandalising means an attack on the credibility or character of the judges by publishing or making unwarranted and defamatory remarks about the judges. It is not necessary that the comments are directed against any specific case or any specific judge. The factor that has to be considered is whether the comments can be deemed to undermine the authority of the judiciary as a whole and whether the comments can shake the confidence of the public in the judicial system.

The term prejudicial to the proceedings of the court was explained in the case of In Re P.C. Sen (1968). The Supreme Court observed that if any person makes a speech or publishes any material that is false for prejudicing the minds of the public against the parties of the case or with the intent of influencing the outcome of a trial, then such an action would be deemed to be contempt of the court.

The term obstructing the administration of justice was explained in the case of Delhi Judicial Services Association v. the State of Gujarat (1991). Herein, the Supreme Court held that any attack on the presiding officers of the court with the intent of restricting them from discharging their lawful duties would amount to criminal contempt.

Cognizance of criminal contempt

Under Section 15 of the Contempt of Courts Act, the Supreme Court or the High Court is empowered to initiate criminal contempt proceedings either suo-moto or on an application filed by the Advocate General of India or any other person who is filing the application with the consent of the Advocate General of India.

This provision was examined and explained in the case of In Re Prashant Bhushan (2021). In this case, the Supreme Court observed that the Court is empowered to initiate suo-moto proceedings under Section 15 of the Contempt of Courts Act and it does not have to seek the permission of the Attorney General of India in this regard because the power to initiate contempt proceedings is an inherent power vested in the Supreme Court and the High Courts. Once the Court takes cognizance of the matter, the only two parties in the dispute would be the Court and the contemnor and the Court has to ensure that the principles of natural justice are followed during the hearing.

Hearing of the case

Section 18 of the Contempt of Courts Act states that the cases of criminal contempt should be heard and determined by a bench of a minimum of two judges.

Limitation

Section 20 of the Contempt of Courts Act states that contempt proceedings cannot be initiated against the contemnor after the expiry of 1 year from the date of the incident.

Punishment for contempt of court

Section 12 of the Contempt of Courts Act states that any person who is found guilty of the offence of contempt of court shall be punishable with imprisonment that may extend to 6 months or with a fine that may extend to ₹2,000 or both.

Indian Penal Code, 1860

Assault on a public servant

Section 353 of the Indian Penal Code states that any person who assaults a public servant and uses criminal force against such public servant with the intent of deterring or preventing the public servant from executing his legal duties shall be punishable with imprisonment that may extend to two years or with fine or both. This is a non-bailable offence.

Punishment for causing voluntary hurt

Voluntary hurt has been defined under Section 321 of IPC as any action committed by any person with the intent of causing harm to any person. The punishment for voluntarily causing hurt has been prescribed under Section 323 of IPC as imprisonment that may extend to one year or a fine that may extend to ₹1,000 or both.

Applicability of penal provisions in this case

The present case would come under the ambit of criminal contempt because the Sessions Judge was attacked in the courtroom while legal proceedings were going on. Thus, in light of the precedent laid down in Delhi Judicial Services Association v. the State of Gujarat, the same would amount to obstruction of the administration of justice and therefore fall under the ambit of criminal contempt. Also, the acts of assaulting a public servant and voluntarily causing him to hurt are offences that are punishable under the Indian Penal Code. Thus, while determining the punishment the Court will have to read Section 12 of the Contempt of Courts Act along with Section 353 and 323 of the Indian Penal Code.

A similar incident in Bihar

In October 2020, a similar incident had occurred in Bihar. The District Judge of Aurangabad, Bihar, Mr. Dinesh Pradhan was allegedly threatened and assaulted by a Sub-Inspector of the Bihar Police along with some Central Reserve Police Force (CRPF) officers while he was on an evening walk.

A Public Interest Litigation (PIL) for initiating criminal contempt proceedings against the accused was filed in the Supreme Court of India. The following averments were made in the PIL:

The attack was a result of a personal grudge as the District Judge had taken actions against the sub-inspector earlier for dereliction of duty.
The Bihar Judicial Services Association had written a letter to the DGP in this regard but no action was taken by him.
The Court should direct the institution of an FIR against the sub-inspector and the CRPF officials and should also take an action against the DGP for not initiating an investigation into the matter on the receipt of the letter.
If judges are not protected against such atrocities, the people in the state cannot feel safe. Thus, the Court should take into consideration the larger public interest involved in the matter.

The Supreme Court noted the averments made under the PIL and asked the petitioner to include the names of the sub-inspector and other CRPF officials in the PIL. The petitioner agreed to the same and stated that he would amend the PIL and include the name of the sub-inspector only because the identity of the CRPF officials was not known. The Court also directed the Police to carry out a preliminary investigation into the matter and submit a report regarding the same.

The Supreme Court in February 2021, dismissed the PIL on two grounds, i.e., firstly the petitioner failed to include the name of the sub-inspector and secondly, the investigation report submitted by the Bihar Police stated that the attack never happened. The silence of the District Judge in this matter also played a crucial role in the dismissal of the PIL.

Conclusion

The very existence of the judiciary depends on its independence. If the judiciary cannot act independently and is forced to act in a certain way, it is impossible that justice will be delivered in all cases. For justice to be done, it is imperative that the judges are protected from such incidents and are allowed to act in a free and fair manner. Therefore, the Bihar High Court should take this matter seriously and set a deterring precedent so that such incidents do not occur in the future.

References

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Using public parks for any other purpose would amount to a breach of trust : analysis of Preeti Singh vs. The State Of Madhya Pradesh And Others

By

Shoronya Banerjee

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November 30, 2021

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This article is written by Sukanya Mitra, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from Lawsikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

The case of Preeti Singh vs. State of Madhya Pradesh and others, decided on 26.08.2021 involved the tussle between development and the environment. A Division Bench of the High Court of Madhya Pradesh declared a Municipality to be the trustee of open spaces and amenities designated for public use and enjoyment. Any use of these spaces and amenities contrary to the interests of the public would amount to a breach of trust. The article examines the case in light of the Doctrine of Public Trust.

Facts of the case

A community hall was being constructed on land designated for the public park of Indira Colony in Burhanpur, Madhya Pradesh. A writ petition was filed seeking directions to stop the construction. Further, the petitioner prayed for inquiry by the respondent-State into the illegalities done by the Mayor of Burhanpur, who was Respondent No. 5 in the petition. The petitioner placed on record some coloured photographs of the community hall under construction and alleged that said construction was illegal.

Issues

The issue was that the construction of the community hall on land for a public park was contrary to the provisions of the M.P. Municipalities Act, 1961.

Observations of the High Court

Relevant provisions of the M.P. Municipalities Act, 1961

Section 279: The Municipal Council may provide for amenities like open spaces, playgrounds, parks and swimming tanks, for the use of people. The Council can also frame bye-laws for regulating such amenities. The Council can also designate amenities for the exclusive use of women and children. The amenities can be provided for and maintained jointly by two or more local authorities.
Section 282: The State Government may reserve certain areas for any special purpose of public utility. The State Government can do so by publishing a notice in the official gazette, either on its own motion or on request by a Municipal Council. ‘Special purpose’ used in this context may be public parks, educational or medical institutions, markets, housing colonies, etc. Once the reservation has been notified, no construction can take place on such an area without the permission of the State Government. If any construction is done on a reserved area without the permission of the State Government, the Municipal Council may demolish such construction and recover the costs incurred for the demolition from the owner or occupier of the structure.

Referred judgments

TITLE	RATIO
Bangalore Medical Trust vs. B.S. Mudappa and others (1991) 4 SCC 54	An appeal was made against the decision of the High Court of Karnataka setting aside the allotment of an open space reserved for a public park to a private medical trust for the construction of a hospital. The Supreme Court upheld the decision and observed that the allotment made by the Chief Minister was in breach of public trust; he was acting more like a person disposing of his private property and not discharging his duties and obligations for public welfare as the head of the State.
Intellectual Forum, Tirupathi vs. State of A.P. and others (2006) 3 SCC 549	A Special Leave Petition was filed against the order of the High Court of Andhra Pradesh dismissing writ petitions challenging the alienation of land on which 2 ancient water tanks were situated for development and housing purposes. The Supreme Court held that the right to shelter and the fact that heavy monetary investment has been made in the projects does not outweigh environmental concerns. It has been established through a number of judgments by the Supreme Court that environmental protection and conservation is fundamental right and come under the purview of Article 21. The Court directed all construction to be stopped and the ancient tanks to be revived.
Municipal Corporation, Ludhiana and another vs. Balinder Bachan Singh (Dead) by LRS and others (2004) 5 SCC 182	An appeal was filed against the judgment and order of the High Court of Punjab & Haryana, which upheld the decision of the Additional District & Sessions Judge that the respondents had ownership of the plot of land, which had been developed as a public park, and they were entitled to their prayer of injunction against the Municipal Corporation. The Supreme Court observed that green spaces were needed in localities to be the lungs for the residents. The Court noted that the respondents had themselves sold the plot of land, which were purchased with the understanding that the park will be provided for, at a high price. After taking advantage, the respondents could not be allowed to turn around and claim the park as their private property. The Court set aside the order of the High Court and reaffirmed the order of the Trial Court that the respondents were not owners of the land.
Padma vs. Hiralal Motilal Desarda and others (2002) 7 SCC 564	An appeal was filed against the order of the High Court of Bombay in public interest litigation cancelling the bulk sale and allotment of developable land by a company incorporated by the State Government. The Supreme Court upheld the decision of the High Court and stated that the High Court rightly observed that open and green spaces are necessary not only for the use and enjoyment of people and to maintain the ecological balance but also to beautify the area.
Bombay Dyeing and Manufacturing Co. Ltd. vs. Bombay Environmental Action Group and others (2005) 5 SCC 61	The Supreme Court was faced with the issue of whether harmony between environmental aspects and building regulations in the scheme floated by the Board of Industrial and Financial Reconstruction was possible. The Supreme Court observed that ecological factors need to be considered in town planning. The Court would normally lean in favour of environmental protection as it has been interpreted to be part of the fundamental right under Article 21. Public interest is relevant to the interpretation of the statute.
Yogendra Singh Tomar vs. State of M.P. and others AIR 1997 MP 124	Public interest litigation was initiated against the proposed conversion of a public park into a shopping complex by the Municipal Council in a congested area. The Supreme Court observed that India, like the planet Jupiter, is thickly covered with toxic gases and dust. The Supreme Court held that open spaces such as parks and playgrounds were essential in protecting residents from the negative impacts of urbanization.

Keeping in mind the principles laid down by the Supreme Court in many cases for interpreting town planning laws, the Court observed that open spaces such as public parks are essential for residents in general and the children in particular to lead a healthy life. Hence, once a public park has been dedicated to residents, the Municipality holds it in trust on behalf of the public. Use of the public park for any other purpose by a body of the Municipality would be tantamount to breach of trust.

Public Trust Doctrine

Though not explicitly stated, the Court invoked the Doctrine of Public Trust. The Doctrine states that certain resources, like air, seas, and forests, should be freely available and the Government is required to ensure access to the resources for public use. The Doctrine has two parts;

Free access to resources: Natural resources are gifts of nature and should be accessible to everyone, irrespective of their status.
Government’s responsibility: The Government is responsible not only for ensuring resources are accessible to the public, but also for preventing private players from gaining ownership of these resources for commercial purposes.

The Government is responsible for the effective management of public resources for the benefit of the public. Hence, the Government holds the resources as trustees. The public has the right to question the Government regarding the management of the resources.

The Public Trust Doctrine can be found in Article 48A and Article 51A of the Indian Constitution.

Article 48A is part of the Directive Principles of State Policy and mandates the State to make efforts to protect and improve the environment, and to safeguards forests and wildlife.
Article 51A(g) imposes a duty on the citizens to protect and improve the natural environment, like forests, lakes and wildlife, and to have compassion for all living creatures.

As already discussed above, environmental protection and the right to clean air, clean water, etc have been interpreted to be a fundamental right under Article 21 by the Supreme Court.

The Public Trust Doctrine was first applied by the Supreme Court in the case of M.C. Mehta vs. Kamal Nath (1997). The Supreme Court had taken suo moto action based on a newspaper article. The article reported that a private company was expanding its hotel business and constructing a motel, called Span Club, on the banks of the river Beas. For this purpose, the company was trying to change the natural course of the river by using earthmovers and bulldozers. As a result, large parts of forests and the river bed itself were being destroyed. The land was leased to the private company by the State Government with prior approval of Kamal Nath, the then Minister of Environment and Forests. It was reported that Kamal Nath’s family had ‘direct links’ and ‘business interests’ in the private company. This was not the first time that the company had attempted to change the course of the river. The first time that the company had tried, they had caused massive flooding and destroyed Rs 105 crore worth of property.

The Supreme Court held that the Public Trust Doctrine was a principle of common law and is applicable in India. The State is a trustee and has a legal duty to protect natural resources. Resources for public use can not be converted into private ownership. By leasing the land, the State Government committed a breach of trust. The lease was canceled and the State Government was ordered to restore the natural conditions of the area. Further, the developer of the motel was directed to pay compensation in terms of restoration of the environment and removal of the pollutants caused by the construction. The motel was prohibited from discharging pollutants into the river.

Final Order

The Court disposed of the petition by directing that the community hall be demolished and all construction materials be removed within 2 months. It was further directed that the park maintained in land plots numbered 101, 102 and 103 in the Town and Country Planning map shall always be a park and cannot be used for any other purpose. The Municipal Corporation of Burhanpur was mandated to maintain the park and the Collector was mandated to ensure the order was complied with.

Conclusion

The current global debate on climate change has been triggered by the impact made by rapid industrialisation and urbanization. Environmental degradation is now obvious to every person, in the form of unseasonal rains, devastating floods, severe droughts, widespread forest fires, and toxic air pollution. The High Court of Madhya Pradesh made important observations regarding balancing development with the protection of the environment and ecology. The Court upheld the public’s interests in creating open spaces, public parks, playgrounds, etc for the public’s healthy life as well as for protecting and improving the environment.

References

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Lakhimpur Kheri incident : a timeline of legal process so far

By

Sneha Mahawar

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November 30, 2021

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This article is authored by Nidhi Bajaj, a student of Guru Nanak Dev University, Punjab. The author has presented a timeline of the legal process resorted to in the unfortunate Lakhimpur Kheri incident which led to the death of farmers and left several injured.

Table of Contents

Introduction

“This should not become a never-ending story”.-CJI N.V. Ramana

The Prime Minister’s announcement to repeal the three farm laws in the upcoming session of Parliament came on November 19, 2021, after almost a year-long protest by farmers demanding repeal of these controversial legislations. While the announcement has brought much-deserved relief and happiness to the protesting farmers, a lot is yet to be done for dealing with the aftermath.

The Lakhimpur Kheri incident is another blot on the nation’s proud claim of being the world’s largest democracy. Eight people including four farmers lost their lives in the violence that broke out in UP’s Lakhimpur Kheri ahead of a visit by Deputy Chief Minister Keshav Prasad Maurya on October 3, 2021.

In this article, the author has provided a timeline of events of the unfortunate Lakhimpur Kheri incident and the legal process followed so far.

Details about the incident

October 3, 2021: MoS (Home) Ajay Mishra Teni and UP Deputy Chief Minister Keshav Prasad Maurya were on a visit to inaugurate a few government schemes in Banbirpur village of U.P. Several protesters were blocking the road to restrict their passage in Tikunia village of Lakhimpur Kheri district of U.P. when an SUV, allegedly belonging to Ashish Teni, son of the Ajay Mishra Teni mowed down the peacefully protesting farmers. Two other vehicles that were part of the same convoy also ran over those who had already been thrown to the ground and crushed by the first SUV resulting in death of four farmers. Clashes ensued between the farmers and BJP workers leading to 4 more deaths including 2 BJP workers and a car driver. One local journalist named Raman Kashyap was also killed in the violence.

October 4, 2021: On Monday, Section 144 of the Cr.P.C. was imposed in the Lakhimpur Kheri district and internet services were also suspended. It was announced by the UP Govt. that a compensation of Rs 45 lakh and Rs 10 lakh will be paid to the families of the deceased farmers and the injured farmers respectively and that a Committee will be formed under the chairmanship of a Retd. Judge for investigating the matter.

Legal process

Letter PIL filed in Allahabad HC

On October 4, 2021, a letter PIL was filed in the Allahabad High Court by Swadesh and Prayag Legal Aid Clinic through Advocate Gaurav Dwivedi seeking a CBI enquiry or an independent judicial enquiry monitored by the Supreme Court or by a special investigating agency in the matter of the death of 8 persons who died in a dreadful massacre at Lakhimpur Kheri.

Registration of FIR against Ashish Mishra for murder, criminal conspiracy

An FIR was lodged by the UP Police against Ashish Mishra, son of Union Minister Ajay Mishra who is accused of allegedly running over the farmers under Sections 302 (murder), 120-B (criminal conspiracy), 279 (rash driving), 338 (grievous hurt), 304-A (death by negligence), 147 (rioting) and 149 (unlawful assembly) of the Indian Penal Code, 1860. The FIR registered against Mishra and 15-20 unnamed persons states that the whole incident was premeditated.

Letter to Chief Justice of India by two advocates

In a letter to the Chief Justice of India, advocates Shiv Kumar Tripathi and CS panda wrote that the Lakhimpur Kheri violence has violated the human rights of the peacefully protesting farmers and demanded registration of an FIR and proper investigation in the matter. The letter asked for the institution of a high-level judicial enquiry by the CBI under the supervision of the Supreme Court for investigating the matter.

Suo-moto cognisance of the Lakhimpur Kheri incident by the Supreme Court

On October 6, 2021, the Hon’ble Supreme Court took suo-moto cognizance of the Lakhimpur Kheri incident and the case was listed before a three-judge bench led by the Chief Justice of India NV Ramana. Justice Suryakant and Justice Hima Kohli are the other judges on the bench. However, on the first day of hearing of the case i.e. In Re: Violence in Lakhimpur Kheri (U.P.) leading to loss of life, the Chief Justice clarified that the case was supposed to be a PIL based on the letter written by the Advocates Shiv Kumar Tripathi and CS Panda seeking action in the Lakhimpur Kheri incident and was incorrectly listed as a suo-moto matter. The Court however proceeded to hear the matter and directed that both the lawyers be present in the hearing.

Senior Counsel Garima Prashad, AGA of UP submitted to the Court that an FIR has been registered and a Commission of Inquiry has been formed for investigating the matter which will be headed by a retired judge of Allahabad High Court. A grievance was raised by the opposing counsels that the investigation in the case is not being conducted in a proper manner. Describing the incident as extremely unfortunate, the Court ordered that the status report be filed within 24 hours including particulars as to the accused who have been identified and whether they have been arrested. The Court also ordered the government of U.P. to facilitate the medical care of the mother of a 19-year-old farmer who died in the incident.

Appointment of Retired judge of Allahabad High Court to investigate the matter

The UP government appointed a single-member commission under Retd. Allahabad High Court Judge Pradeep Kumar Shrivastava for conducting an enquiry into the Lakhimpur Kheri incident and the Committee was asked to submit its report within two months.

Issue of summons to primary accused

Summons were issued to the primary accused in the case Ashish Mishra for appearing before the police on October 8. However, they were not complied with by the accused. Thereafter, the summons were again issued to the accused to appear before the police on October 9.

Supreme Court expresses its dissatisfaction with the police probe

On October 8, 2021, the Supreme Court came down heavily on the U.P. police for the undue delay in arresting the main accused of the Lakhimpur Kheri incident. It was submitted by Mr. Harish Salve (Learned Counsel appearing on the behalf of the State of U.P.) that the summons was issued to the accused to appear before the police at 11 a.m. on October 9. The Court expressed its dissatisfaction with the way the police were handling such a serious matter. The Court asked the state, “If you see the FIR, Section 302 is there, is it the same way you treat other accused?”. The Court called the Lakhimpur Kheri incident a brutal murder of 8 people opining that the law must take its course against all the accused. The Court also directed the state to ensure that the evidence and relevant materials of the case are not destroyed.

Arrest of accused

After hours of interrogation by the special investigation team of UP police on October 9, 2021, the primary accused in the case Ashish Mishra was arrested by the police on the grounds of non-cooperation during the interrogation and giving evasive replies. Ashish Pandey (alleged accomplice of Ashish Mishra) and 4 other people named Luvkush, Shekhar Bharti, Ankit Das and Latif were also arrested.

Accused sent in judicial custody

Ashish Mishra, the primary accused in the case was sent to 14-day judicial custody by a local Court in U.P.

Accused sent to police custody

On 11th October 2021, the remand petition for the police custody of the accused was granted by Chief Judicial Magistrate Chintaram. The accused was sent to three-day police custody on the condition that the lawyer of the accused shall remain present during his interrogation.

Bail denied to accused

On October 13, 2021, a U.P. Court presided over by CGM Chintaram rejected the bail applications filed by Ashish Mishra and Ashish Pandey.

Delay in filing status report and recording of witness statements

The Supreme Court criticised the UP Government for its handling of the Lakhimpur matter as statements of only 4 witnesses out of 44 were recorded by the police so far. The Court directed the state to record the statements of the remaining witnesses in the case before a judicial magistrate. Justice Surya Kant told the State, “This statement (164 Cr.P.C.) has more evidentiary value, then why haven’t you recorded them. Statement before police or under 161 Cr.P.C. will not lead to anywhere”. The Court also rebuked the state for the delay in filing the status report as the same was handed over to the Court just before the start of the hearing.

Supreme Court directs recording of statements under Section 164 Cr. P.C and giving protection to witnesses

After perusing the status report, the Court directed the state to expedite the recording of statements of witnesses under Section 164 Cr. P.C and to identify vulnerable witnesses and give protection to them under a proper witness protection program. It was submitted by the state before the Hon’ble Court that the delay in recording the statement was due to the police reconstructing the crime scene. However, the argument did not find favour with the Court as the Court said that both procedures could be conducted simultaneously by different teams. It was also submitted that all the 10 accused have been arrested by the police.

Filing of second status report

The second status report regarding the investigation was filed by the UP government in the Supreme Court. It was submitted that the statement of 30 out of 68 witnesses has been recorded under Section 164 Cr. P.C and that 23 of them were eyewitnesses. The Court directed the expediting of the forensic examination of video recordings. The state was also asked to file separate replies on the investigation on the killing of journalist Raman Kashyap and one Shyam Sundar.

Appointment of Retd. HC judge to monitor the investigation

On November 8, 2021, the Supreme Court once again said that the investigation in the case is not going as expected. The reasoning for the Court’s stance is as follows:

Delay in filing of forensic lab reports regarding the video evidence
Non-seizure of mobile phones of all accused
Clubbing of investigation in the case at hand with the counter case of mob lynching and concerns that the primary accused was getting benefited by the same

Directions given by the Court

The Court observed that investigation of the two cases (i.e the case relating to the death of farmers due to mowing down by a car and the case of death of BJP workers due to mob lynching) must be conducted separately and independently.

Proposal by Court to appoint a Retd. High Court judge for monitoring the investigation

The Supreme Court proposed the appointment of a retired judge from the High Court of another state for monitoring the investigation in the case to ensure that there is no overlapping of evidence in both cases and the investigation is conducted in a fair and impartial manner.

Death of journalist due to getting crushed down by a car

It was submitted by the State before the Hon’ble Court that journalist Raman Kashyap died due to being mowed down by the car along with the farmers and not due to lynching, as initially thought.

The demand of CBI Probe

Senior Advocate Arun Bhardwaj, appearing on the behalf of Ms. Ruby Devi (widow of slain BJP worker Shyam Sundar) while expressing the lack of confidence with the SIT probe demanded a CBI investigation. However, the Court turned down the request by saying that ‘CBI can’t be a solution for everything’.

State agrees to the appointment of a retired High Court judge for monitoring the probe

On 15 November 2021, the state expressed its agreement with the Court on the appointment of a retired High Court judge for monitoring the investigation in the case. On the same day, the Court also observed that the SIT constituted by U.P. police needs to be upgraded as it includes mostly officers from the Lakhimpur Kheri region. Therefore, the bench asked the state to circulate the names of IPS officers of UP cadre who do not hail from UP for inclusion in the SIT.

Denial of bail to accused

On 15 November, a district Court of UP rejected the bail applications of accused Ashish Mishra, Ashish Pandey and Luvkush Rana. The bail pleas were turned down after the prosecution presented a case diary, 60 eyewitnesses and ballistic reports of four firearms to establish the involvement of the accused in the crime.

Appointment of Justice R.K Jain, former Punjab and Haryana High Court judge to monitor the investigation

On 17 November 2021, the Supreme Court-appointed Justice Rakesh Kumar Jain, a retired judge of the Punjab and Haryana High Court to monitor the investigation in the Lakhimpur Kheri violence. The Court said that the investigation by the SIT will be conducted in a time-bound manner and shall be monitored by Justice RK Jain to ensure fairness, transparency and absolute impartiality in the outcome of the investigation.

Reconstitution of SIT

The Supreme Court reconstituted the SIT constituted by the U.P. police for investigating the Lakhimpur Kheri incident and included three IPS officers in the SIT, namely Mr. SB Shirodkar, Mr. Deepinder Singh and Ms. Padmaja Chauhan. The Court in its order reiterated that “Justice must not only be done but also be seen and perceived to be done”.

Conclusion

Incidents like the one at hand not only violate the rights of individuals and victims involved but also malign the spirit of democracy. In such critical times, it is indeed very important that the sentinels of Justice ensure that the rule of law is upheld and the investigations are conducted in an absolutely fair and impartial manner. It is imperative that the investigation in the Lakhimpur Kheri incident is conducted in an expedited, time-bound and efficient manner and those who are guilty of the violence are met with adequate punishment. It is only then that the rule of law will prevail in the true sense.

References

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All you need to know about the right to vote

By

Oishika Banerji

-

November 30, 2021

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The article is authored by Akash Krishnan, a student from ICFAI Law School, Hyderabad. It discusses in detail whether the Right to Vote is a right that arises out of a statute or is it a right that emanates from the Constitution itself. It further discusses the debate surrounding the inclusion of the Right to Vote as a fundamental duty.

Table of Contents

Introduction

The Right to Vote is one of the most important rights in a democratic country and it is imperative for the functioning of the electoral system of the country in a free and fair manner. This Right can be divided into two parts, i.e., active voting rights and passive voting rights. The term active voting rights mean the right of the citizens of the country to elect representatives to the legislative bodies of the country and the term passive voting rights deal with the Right to Vote for those individuals who are standing in the elections.

One of the terms that have been associated with the Right to Vote is free suffrage. In simple words, free suffrage means the right of individuals to make a free choice among the candidates of various political parties so as to elect their representatives. Free suffrage also includes the right of an individual to cast his vote freely without any external barriers or pressure. Freedom in casting votes is one of the most important principles that is followed in India.

In light of this brief background, let us not try and analyse whether the right to cast a vote in elections is a fundamental right guaranteed under the Constitution or is it merely a statutory right. This question was raised before the Hon’ble Supreme Court in People’s Union for Civil Liberties (PUCL) and Ors. vs. Union of India (2003). The Supreme Court herein had held that the Right to Vote is a constitutional right. Let us now discuss this case in detail.

People’s Union for Civil Liberties vs. Union of India (2003)

Brief facts

The Supreme Court Union of India vs. Association for Democratic Reforms (2002) while deciding the question about the right to information of a voter to know antecedents of a candidate had held that candidates should furnish information regarding their involvement in criminal cases, their educational qualifications, assets, liabilities etc.

Following this decision, the Representation of the People (3rd Amendment) Act, 2002 was passed. Under this amended Act, new provisions, i.e., Section 33A and Section 33B were inserted. These provisions invalidated the judicial decision and the requirement of disclosing the information was set aside. The validity of the non-incorporation of the directions of the Supreme Court in Amending Act was challenged in the present case.

Provisions involved

Right to Information

Section 33A of the Amendment Act provided the information that a candidate should disclose in his nomination paper. The disclosures to be made were as follows:

Details about any offence for which he is accused that is punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction.
Details about an offence for which he has been convicted and sentenced to imprisonment for one year or more.

The candidate should also submit an affidavit stating that the contents of the nomination paper are true. This affidavit is displayed by the election officer at a conspicuous place in his office so that all the electors of his constituency are aware of the disclosures.

Candidate to furnish information only under the Act and the rules

Section 33B stated that no candidate will be liable to disclose or furnish any such information, in respect of his election which is not required to be disclosed or furnished under this Act or the rules made thereunder irrespective of the fact that a judgment or decree has been passed mandating such disclosure.

The contentions of the Respondent

The Union contended that the right to vote and the right to be elected in elections are both statutory rights. There is no fundamental right granted to the citizens to cast a vote nor can any citizen claim a fundamental right for contesting in elections. In the absence of such a fundamental right, a citizen cannot claim the fundamental right to antecedents or assets of a candidate who is contesting in the elections.

In light of the same, the Counsel for the Union cited the case of Jyoti Basu and Ors. vs. Debi Ghosal and Ors (1982). Herein, the Supreme Court had observed that the right to cast a vote in elections is neither a fundamental right nor a right under common law. It is only a statutory right. The right to be elected and the right to dispute an election are also statutory rights.

The Union further contended that the Courts cannot strike down a law just because it deems it to be unjustified. In light of the same, the Union cited the case of Dr. P. Nalla Thampy Terah vs. Union of India and Ors (1985), wherein the Supreme Court had held that only if the provisions of the law violate the Constitution it can be struck down by the Court. The Court further observed that it does not have the power to lay down policies in matters pertaining to elections.

Issues

In light of the arguments raised by the Union, the Court concluded that for determining the validity of an Act, it should be checked if the provisions of the Act are infringing any of the provisions of the Constitution. In light of the same, the Court framed the following issue:

Whether the Right to Vote is a Constitutional right?
Whether the citizens have a right to know the antecedents of the candidates standing in the elections?

Observations of the Supreme Court

The contention that as there is no specific fundamental right conferred on a voter by any statutory provision to know the antecedents of a candidate is unsound.
The right to know the antecedents of a candidate standing in an election is an independent right and does not depend on any statute.
A voter is the first citizen of this country and apart from certain statutory rights, he also has multiple fundamental rights guaranteed under the Constitution.
For casting a vote intelligently, it is necessary that the voters make an informed choice. An informed choice can only be made if the voters are completely aware of the candidate they are voting for. The Right to Vote would be meaningless unless the citizens are well informed about the antecedents of a candidate.
The Right to Vote is based on two principles/factors:

The voter should be able to form an opinion about the candidate
The voter should be allowed to freely cast his vote in favour of a candidate of his choice.

The first principle, i.e., the formation of an opinion about the candidate is not possible if the voter does not have sufficient information about the candidate. Only if essential information like that of criminal antecedents and assets of the candidate is disclosed can the voter’s debate on their merits and demerits. The availability of the necessary information about the candidate will promote the freedom of speech and expression both from the point of view of imparting and receiving the information and would lead to the preservation of the integrity of the electoral process.
Coming to the second principle, the Right to Vote for a candidate of one’s choice is an essential part of democracy. The Court observed that the idea of including eight to vote as a fundamental right was discussed by the Constituent Assembly but was not adopted. However, the concept of adult suffrage was included under Article 326 of the Constitution.
When an individual goes and casts his vote freely in the polling booth, he exercises his freedom of expression that is guaranteed under Article 19(1)(a) of the Constitution of India.
Freedom of voting is a separate right as compared to the Right to Vote. It is part of the freedom of expression and therefore the complementary right to have adequate information about the candidate is annexed to it.
The Right to Vote, if not a fundamental right, is certainly a constitutional right. The right originates from the Constitution and is in accordance with the constitutional mandate contained in Article 326.
In light of the same, it was held that the Right to Vote is a constitutional right.
It was also held that the provisions of the Amendment Act were unconstitutional.

Right to Vote as a fundamental duty

What are fundamental duties

Fundamental duties can be termed as statutory duties that are not enforceable by law. The Constitution of India has listed 11 fundamental duties. Interestingly, at the time the Constitution was enacted, no fundamental duties were provided under it. 10 of these fundamental duties were added by the Constitution 42^nd Amendment Act 1976 and the 11^th duty was added by the Constitution 86^th Amendment Act 2002. It is important to note that even though fundamental duties are not enforceable by law, they may be taken into consideration by the courts while deciding any issue relating to it.

Whether the Right to Vote is a fundamental duty

In 2015, a petition was filed by Satyaprakash in the Supreme Court wherein he contended that every citizen of this country who is capable of casting a vote should be mandatorily made to cast a vote. He cited the examples of Argentina, Brazil and Belgium wherein voting was made compulsory to all the citizens. He also cited the example of the state of Gujarat and contended that the State mandates compulsory voting on part of all the citizens in the state.

In light of these arguments, the Supreme Court had asked the Centre to file a response. A response for the same was filed in 2015 wherein the Union Ministry of Law and Justice stated that if a regime of compulsory voting is introduced, it would result in the creation of an undemocratic environment in the country. The Right to Vote was already recognised by the Supreme Court. The Union contended that the Right to Vote also includes the right not to vote. The Union also cited the Law Commission Report on Electoral reforms wherein the Commission had noted that the Right to Vote cannot be imposed as a fundamental duty because such an action would be expensive, illegitimate and difficult to implement.

Opinion of Justice Reddy

As part of a student procession and gathering that was carried out on 25^th January in Hyderabad, Justice Lokayukta B. Subhashan Reddy gave his opinion regarding the inclusion of the Right to Vote as a fundamental duty. While addressing the gathering he stated that the number of fundamental duties should be increased so as to include within its ambit the fundamental duty to cast a vote during elections. He further stated that the democracy in India could be deemed to be complete only if the citizens are made to exercise their voting rights compulsorily.

Opinion of the former Law Minister

Former Law Minister, Mr. Ravi Shankar Prasad while addressing a press conference in 2016 had shared his personal opinion on the matter of inclusion of the Right to Vote as a fundamental duty. He stated that a new fundamental duty must be added to the Constitution under which every citizen is made to vote.

At that time, there was a private member’s bill that was pending in the Lok Sabha. This bill sought to make voting a fundamental duty. However, the Government, the Election Commission and the Law Commission had argued against this proposition.

Conclusion

The Court in PUCL vs. Union of India had ended an age-old debate surrounding the status of the Right to Vote. A right that was recognised as a statutory right by a smaller bench of the Supreme Court itself prior to this case was now recognised as a Constitutional right. In doing so, the Court relied on Article 19(1)(a) and held that the right to choose a candidate and cast a vote is a form of expression and thus protected under Article 19(1)(a).

The question as to whether or not the right to vote should be made a fundamental duty is still being debated. Although a firm negative stand has been taken by the Government and the Election Commission in this regard, one will have to wait and see whether this stand changes in the coming times.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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Need for a full-fledged complaint mechanism

By

Abanti Bose

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November 30, 2021

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RERA,2017 — Image Source- https://bit.ly/2qeDgTG/

This article is written by Khan Saba, pursuing Certificate Course in Real Estate Laws from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

A house is one of the most fundamental needs of a person, and everyone wishes to have one of their own. However, purchasing one requires a significant amount of money. Apart from that, in order to construct a home and take ownership of it, one must first establish a relationship with the builders, who have their own set of terms and conditions, making it even more difficult for the average person to build their own home. For a long time, there was no openness and uniformity in the home-buying process and no checks and balances in the real estate sector as there were not many laws linked to the “real estate sector” and it was unregulated.

The Indian court has shown admirable interest in the right to housing, interpreting it in the context of “Article 21 of the Constitution”, which guarantees the “right to life”. It has been observed that the demand for housing has risen dramatically over time. The “Real Estate Regulation Act” (hereinafter referred to as “RERA”) was enacted to emphasize its significance and provide transparency. In the history of the Indian real estate industry, “RERA” is revolutionary legislation of the Indian parliament. The real estate law was approved by the “Rajya Sabha” on “March 10, 2016”, and the “Lok Sabha” on “March 15, 2016”. The measure was signed into law by the Honorable President on “March 25, 2016”. Our honourable President, among other things, issued the act, which was published in the “Official Gazette” on “March 26, 2016”.

Overview of RERA

The goal of implementing RERA was to achieve uniformity and openness. There were several conflicts between consumers and providers prior to RERA. They were confronted with several issues, but they were unable to address them since there were no suitable laws and regulations. Consumers were the ones who bore the brunt of all of these problems, with the largest difficulty being the wait. There are a few additional concerns that have arisen as a result of the implementation of this Act. RERA was created particularly to increase transparency among all parties involved and to improve the consumer-agent relationship. The RERA Act has the following features:

Establishment of a fast-track process for resolving disputes by this body, which will monitor, judge, and arbitrate any issues with regard to real estate developments in the relevant state. This will be accomplished via the use of an appellate tribunal and specially trained adjudicating officials.
RERA requires that all real estate developments be registered. They have the authority to deny the registration of a project if the standards are not followed.
If RERA receives any complaints that are confirmed to be valid following an investigation, the project’s registration might be revoked. It is not possible to sell a property that has not been registered under RERA.
All information pertaining to the plot, building, or any other subject pertaining to registration or anything else should be posted to the RERA website. It should be updated on a regular basis.
Within 30 days, it will be approved or rejected, and if no information is provided, it will be deemed approved.
If a promoter wants to charge a buyer an application fee or an advance payment for a plot, apartment, or building, it can’t be more than 10% of the total price. Furthermore, advance payment or the appliance fee is only accepted after the promoter and the client has signed formal documentation relating to the sale of the property, and the transaction has been registered. Every promoter will need to secure insurance on the building’s ownership, the land, and the project’s development.
70% of the money received from project purchasers must be put in a completely different account. This account should, in theory, include the cost of building as well as the cost of land. It can only be revoked once an architect, a controller, and an engineer have given their approval. If you’re a promoter and want to transfer or assign a majority of your rights and obligations in a large property project to a third party, you may need to gain two-thirds of the allottees’ written approval beforehand (not including the promoter). Additionally, you may need RERA’s written consent.
If either the promoter or the consumer fails to meet their obligations, they both risk incurring an identical amount of interest. The promoter will be required to reimburse the customer if the promoter causes any losses to the customer as a result of people’s assumption of property (defective title of land) that is under development or has been built. There is now no legal restriction on the amount of compensation that may be paid.
If someone has a concern with a promoter, buyer, or agent violating the laws or norms of this Act, they may register a complaint with RERA. RERA may prevent an agent, promoter, or buyer from continuing any action that has been the subject of a complaint while the investigation is underway. If any of RERA’s rulings on a complaint are unsatisfactory, the aggrieved party has the option of appealing to the Appellate Tribunal.
If the promoter does not follow RERA’s instructions, they will be fined. This sum might be up to five times the property’s assessed value. If the orders of the Appellate Tribunal do not seem to be followed, a penalty will be imposed, which includes a sentence of up to three years in jail, a fine of up to 10% of the project’s estimated cost, or both. If a corporation violates this Act, anybody who was in charge of the firm at the time the offence was committed, as well as the company, may be held liable and penalized. No civil court shall have jurisdiction over any subject that falls within the jurisdiction of RERA or the Appellate Tribunal. As a result, no court may issue an injunction against RERA or the Tribunal’s actions.

Steps involved in filing a complaint under RERA

The processes involved in filing a complaint or grievance with the RERA are described below:

Step 1 – Anyone who wants to make a complaint with the authorities must first go to the state’s official site. There, the person in question must look for the website where he or she may file a complaint.

Step 2 – The individual who is worried now has to click on the complaint registration page. He or she will be taken to the complaint form after clicking on it, where he or she must fill out all of the specifics of his or her complaint.

Step 3 – When that individual files the complaint as a homebuyer, he or she may be requested to provide personal information such as name, address, contact information, and so on. When submitting the complaint, the person in question might also attach supporting papers.

Step 4 – After the individual has fully filled out the complaint form as a complainant, he or she is required to pay a fee for submitting the complaint. To complete the purchase, one may make use of the online payment method.

Issues with the complaint redressal mechanism under RERA

Every area requires that the issues encountered by that field be resolved as quickly as possible and that there be someone who will listen to their problem and provide a solution If a person is having trouble running a laptop that he just bought and goes to the store for assistance, but does not get a solution to his issue, he will lose faith in the shop’s efficiency as well as the shopkeeper.

Similarly, the real estate industry, like any other, relies on the trust and confidence of customers, developers, and government officials to keep it running smoothly. For this to happen, developers must concentrate on completing projects, responding to concerns, and resolving them as quickly as possible. Previously, there was no redressal process. Now, as a result of this Act, authorities are ensuring timely project delivery, but there is no complaint procedure in place if the purchaser commits fraud or engages in frivolous conduct. The efforts should come from both sides; it should be ensured that no frivolous or unnecessary complaints are filed by consumers and that there are no biases in the authorities regulation of complaints.

Both, the developers and builders of property in India must register their projects with the state regulatory body of the respective state, according to RERA. As a result, purchasers will have an appropriate platform to keep track of the progress of under-construction properties, as well as to register any complaints if they have any issues against the developer, builder, or both. Any buyer who has been misled by the developer, builder, or both is entitled to submit a complaint against them under Section 31 of the Act. Furthermore, the complainant must submit their personal information, as well as the registration number of the developer or builder projects, as well as the names and contact information of people against whom the complaint is being filed.

If the buyer is unable to find a satisfactory and acceptable remedy via RERA, he or she may pursue the issue further by submitting an appeal with the Appellate Tribunal within sixty days after registering the complaint with RERA. If the concerned buyer does not get a solution or measure from the Appellate Tribunal, he or she has sixty days from the date of appearance before the Appellate Tribunal to file an appeal with the High Court of the relevant state.

Need of full-fledged complaint mechanism

There are numerous developers and builders in India who have yet to register their projects under RERA. As a result, purchasers of commercial or residential units in such developments are experiencing a variety of issues since they are unsure where to direct their concerns. As a result, customers who are left with unregistered projects have no other option except to pursue additional legal remedies. They have two options for seeking redress: initiating a criminal case or bringing a consumer complaint against the unregistered project’s builder or developers. They may even submit an appeal before the High Court, requesting reimbursement from the unregistered constructions’ fraud builders or developers.

As a result of the growing number of cases filed against builders and developers for unregistered projects in India, many state governments are now demanding a full-proof plan to register, address, and respond to complaints filed by buyers who are trapped with builders and developers who have not registered their projects. Buyers who have been stuck with an unregistered property, on the other hand, may finally breathe a sigh of relief. Both the government and the real estate regulatory body are putting in a lot of effort to resolve the buyer’s concerns and frustrations. There is also a glimmer of optimism for all property owners or potential buyers that an adequate and accurate regulatory structure would be in place to address their concerns and difficulties with unregistered builders and developers in India.

If a person has a problem with a promoter, buyer, or agent violating the Act’s requirements or rules, they can register a complaint with RERA. RERA can prevent an agent, promoter, or buyer from continuing any action that has been the subject of a complaint while an investigation is underway. If a complaint’s resolution by RERA is not satisfactory, the aggrieved party may file an appeal with the Appellate Tribunal. If the promoter does not follow RERA’s instructions, they will be fined. This sum might be as much as 5% of the property’s assessed value.

The major goal of RERA is to protect buyers from unfair builder’s practices. RERA establishes certain standards for the construction and development of real estate that will improve the openness of real estate transactions. The Real Estate (Regulation and Development) Act of 2016 was enacted to safeguard the interests of Indian home buyers.

Aside from challenges with possession, real estate buyers must deal with a slew of vexing issues from their builders and real estate brokers. Low ventilation, delayed possession, a charge for excessive maintenance costs, low-quality building, unresolved property claims, non-handling of cost plans to the buyer for complete spending in property, and other issues may arise. These all problems associated with the real estate sector, makes one feel the need of a full-fledged complaint system under RERA.

Conclusion

Real estate purchasers now feel comfortable and confident with the passage of RERA. Furthermore, this legislation has provided purchasers with an appropriate platform to monitor the progress of under-construction properties and to register any complaints if they have any issues against the developer, builder, or both. However, a large number of developers and builders have yet to register their projects under RERA’s rules, and purchasers of commercial or residential units are experiencing a variety of issues since they are unsure where to direct their concerns. As a result, although this Act has benefitted purchasers significantly, there are still flaws in the system, such as complaint handling. Therefore, it is highly imperative that a harsh penalty should be imposed for failing to adhere to the regulations, and the system of complaint redressal must be made simpler and speedier for the benefit of the affected parties. Even with a law like this for the real estate sector, there are several obstacles (as mentioned before, including the complaint redressal mechanism) to RERA’s successful implementation, which must be addressed as soon as possible.

References

Real Estate Regulatory Act, 2016
Burman, Land Title Insurance in India: Lessons from U.S. Regulatory Approaches 22(8) Carnegie Endowment for International Peace 3, 5-6 (2020), (hereinafter “A. Burman”)
PATEL, S. B., TANDEL, V., & GANDHI, S. (2013). Revisiting the Real Estate Bill, 2013. Economic and Political Weekly, 48(48), 34–39. (hereinafter “S. Patel”)
MISRA, A. K., & GOEL, N. (2014). Legislation for the Real Estate Sector. Economic and Political Weekly, 49(25), 54–61. (hereinafter “A.K. Mishra”)
Nikhita, “Critical Analysis of RERA Act, 2016”, B&B ASSOCIATES, 3 Sep 2020 (hereinafter “Nikita”)
S. Sharma, “RERA: Registration Of Real Estate Projects- A Brief Overview”, MONDAQ, 29 March 2018 (hereinafter “S. Sharma”)
Rouanet, H., & Halbert, L. (2016). Leveraging finance capital: Urban change and self-empowerment of real estate developers in India. Urban Studies, 53(7), 1401–1423. (hereinafter “Rouanet, H., & Halbert”)
Gupta, A., Sawhney, A., Bajaj, D., & Agarwal, S. (2017). Significance of Real Estate Fund Management in India. Journal of Real Estate Literature, 25(1), 141–168. (hereinafter “G Ashish”)

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

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Critical analysis on Tripura violence in light of freedom of speech and expression

By

Sneha Mahawar

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November 30, 2021

0

FREEDOM OF SPEECH — Image Source: https://rb.gy/fbmqny

This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the petition filed in the Supreme Court against false allegations and charges made in an FIR against the Petitioners to restrict them from exercising their fundamental right to free speech and expression.

Table of Contents

Introduction

In this case, the provisions of the Unlawful Activities Prevention Act, 1967 (UAPA) were challenged on the ground that it fails the test of over-breadth and is, therefore, liable to be struck down. This case is related to the recent incidents of violence against the Muslim minorities in the State of Tripura. Following this incident, the report was published in the public domain by the Petitioners wherein they listed the true facts of the incident. However, an FIR was filed against them under the provisions of the Indian Penal Code, 1860 and the Unlawful Activities Prevention Act on the ground that their actions resulted in causing public disorder. This FIR was challenged in the Supreme Court and the Supreme Court has now listed the matter for urgent hearing.

Now that we have understood a brief background of the case, let us try and understand the case in detail.

Mukesh & Ors. v. the State of Tripura & Ors.

Brief facts

On 14^th October 2021, during Durga Puja, there was widespread reporting of violence against Hindu minorities in Bangladesh on account of blasphemy.
The political right-wing forces in the State of Tripura reacted to this situation and started committing acts of violence against the Muslim minorities within the State.
Several violent protests and processions were led by these right-wing forces against the Muslim minorities. Several offences like arson, looting, targeted violence against Muslim citizens, burning of mosques etc were carried out by these right-wing forces.
These incidents were widely reported by all the major national and international news media organisations. On 27^th October 2021, one of the Petitioners had tweeted from his official account that “Tripura is burning”.
On 29^th October 2021, the High Court of Tripura took suo-moto cognizance of the violence in the state. The State in a brief reply stated the actions being taken by the Government to stop the violence and to provide relief to the victims. The High Court had directed the State Government to ensure that no false articles or news or social media posts should be shared so as to incite violence. It further directed the Government to remove any such false information as soon as it is posted.
A four-member team consisting of Advocates and the Petitioners visited these affected regions on 30^th October 2021 and 1^st November 2021 respectively. Based on their interactions with the affected people and the horror they had witnessed, this team published a report on 2^nd November 2021 titled “Humanity Under Attack in Tripura #Muslim Lives Matter”, in a press release at the Press Club of India.
The contents of the report have been briefly summarized as follows:

Several testimonies of the victims of the horrific violence were recorded wherein they talked about how they were attacked and how their property was attacked, looted and burnt by the right-wing forces.
Photographs of 12 mosques were added which were attacked and burnt by the right-wing forces.
Copies of two complaints that were filed by the victims of the violence on 29^th October 2021 were attached stating that no FIR was filed in furtherance of the complaints.
It commented on the failure of the State to act and stop the commission of the crimes and raised the questions of abdication of fundamental duties of the State to protect the people irrespective of religion or minority status.
It suggested the formation of a high-level inquiry committee to look into the matter and provide justice to the victims along with proper compensation. It suggested that this committee should also grant reliefs for the repatriation of religious places. Public property that was damaged during the incident.
It demanded that strict action should be taken against all the people who through social media posts had aided in the incitement of violence against the Muslim minorities.

In light of the same, an FIR was filed on 3^rd October 2021 against the Petitioners and other ‘unknown persons’ under Section 13 of the Unlawful Activities Prevention Act and Sections 153, 469, 471, 503, 504, and 120B of the Indian Penal Code and they were asked to appear before the Tripura Police on the same day.
The present petition was filed under Article 32 of the Constitution of India in light of the targeted violence by the political right-wing forces against the Muslim minorities in the state of Tripura and the attempt of the Police to restrict the free flow of information about the incident by filing criminal charges against the Petitioners under the UAPA who were attempting to bring the true facts of the circumstances to the notice of the public.
Also, the Constitutional validity of Section 2(o) of the UAPA read with Section 13 and Section 43(d)(5) of the UAPA was challenged by the Petitioners on the ground of inconsistency with their fundamental rights guaranteed under Article 14, Article 19(1)(a) and Article 21 of the Constitution.

Arguments of the Petitioners

The social media posts that were referred to in the FIR and in the Notice that was issued to the Portioners were not made by them nor were their official social media handles used to make such posts.
The FIR has been filed against them to restrict them from exercising their freedom of speech and expression and therefore the filing of the FIR should be held to be an arbitrary exercise and abuse of power.
The Report that was published by the Petitioners indicated the failure of the State and the police to act and prevent the ongoing violence and the FIR was an attempt to stop them from raising their voices against the Government and the police inaction.
The Report does not include any fact that is false nor does it exaggerate any fact. All the information cited in the Report is based on the true testimonies of the victims and the live photographs that were taken at various places.
The FIR was an attempt to curb the free flow of information within the State regarding the true events and the Government was trying to mask its failure by diverting this issue to the false allegations against the Petitioners.
The scope of the term unlawful activity, as defined under Section 2(o) of UAPA, is not applicable to the present circumstances.
Offences were brought under Sections 13 and 43(d)(5) of the UAPA so that the Petitioners cannot seek anticipatory or regular bail. Thus, the entire attempt was to keep the Petitioners from raising their voice about the incident.
Article 19(1)(a) grants the freedom of speech and expression. The report was made in furtherance of this right and the Sections of the IPC under which the Petitioners are charged will not be applicable because none of those provisions has the power to restrict the exercise of a fundamental right and the actions of the Petitioners are not barred under Article 19(2) of the Constitution.

Grounds

Quashing of FIR under Article 32

The Petitioners argued that there was no bar on quashing an FIR in a petition filed under Article 32 on the ground that the right to freedom of speech and expression is being affected through this FIR. In light of the same, the Petitioners referred to the following cases:

State of Haryana & Ors. vs. Bhajan Lal (1992)

In this case, the FIR that was based on false allegations was quashed by the Court while exercising powers under Article 32. The Court herein had observed that if the allegations under the FIR are insufficient to constitute an offence that the accused is being charged with, then in such cases the FIR can be quashed. It further noted that if the allegations are false and are not supported by cogent evidence relating to the commission of the offence by the accused, the Court is empowered to quash the same under Article 32.

State of W.B. v. Swapan Kumar Guha (1982)

In this case, it was held that if the FIR fails to disclose the facts surrounding the commission of the offence, then in such cases, the FIR and the investigation in the case can be quashed by the Court while exercising its powers under Article 32.

FIR is against the freedom of speech and expression

Unlawful activities have been defined under Section 2(1)(o) as any act committed by an individual or organisation by words or by visual representation:

That halts the activities of a territory or a part of a territory of India.
That disrupts the sovereignty or integrity of India.
That causes disaffection against India.

Section 13 of UAPA states whoever takes part, commits, abets, or advocates any unlawful activities shall be punishable with imprisonment that may extend to 7 years and shall be liable for a fine. If a person assists in conducting any unlawful activity, then he shall be liable for imprisonment that may extend to 5 years and Section 43D(5) states that no person accused of an offence punishable under Chapters IV and VI of this Act shall be released on bail.

The Petitioners argued that the publication of the report by them does not amount to unlawful activity and thus the provisions of UAPA under which the Petitioners were charged are inapplicable to the present case. They further contended that the police had expanded the scope of the definition of unlawful activity on their own whim and fancy to bring the Petitioners under its ambit. In light of the same, the Petitioners referred to the following cases:

Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya (1990)

In this case, the Court held that while applying a law with serious penal consequences on a person, extreme care must be taken to ensure that the authorities do not go beyond the scope of the statute by reading new provisions into it. The authorities should limit the interpretation of the provisions to what was intended by the legislature while enacting the law.

S. Rangarajan v. P. Jagjivan Ram (1989)

In this case, the Court observed that the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution can only be limited through the exercise of the provisions under Article 19(2) only in the times of necessity. However, the criticism of the Government and its policies or actions cannot be constituted as a fair ground to restrict the freedom of speech and expression.

Indibily Creative Private Ltd. v. State of West Bengal (2020)

In this case, the Court held that the Constitution does not permit those in authority who disagree to crush the freedom of others to believe, think and express.

Patricia Mukhim v. the State of Meghalaya and Ors (2021)

In this case, it was held that the freedom of speech and expression guaranteed by the Constitution cannot be taken away by the authorities by implicating individuals under false criminal cases unless the speech has caused a disturbance in the public order of the country.

Constitutional validity

Section 2(1)(o) of the UAPA has a very wide range and in some cases could include acts like criticism of the government or public officials even if such acts do not pose a threat to the sovereignty and integrity of India or create public disorder. This provision can therefore be used in a mala fide manner so as to curtail the freedom of speech and expression of the citizens, as it has been done in the present case. Thus, the provision should be declared unconstitutional because the provision has no direct nexus with public order. In light of the same, the Petitioners referred to the following cases:

Superintendent Central Prison v. Dr Ram Manohar Lohia (1960)

In this case, the Court held that the restriction imposed by any provision in the interests of public order has to be a reasonable restriction and such a restriction should have a proximate connection or nexus with public order. It should not be far-fetched, hypothetical or problematical or too remote in the chain of its relationship with the public order.

Shreya Singhal v. Union of India (2015)

In this case, the Court held that remote disturbances of public order by demonstration would fall outside Article 19(2).

Observation of the Supreme Court

The Supreme Court noted the urgency behind the present petition and listed the petition for hearing as early as possible.

Conclusion

The question of law involved in this case is whether the right to freedom of speech and expression, which is a fundamental right, be restricted on the grounds of fair and reasonable criticism of the Government and its actions. From the facts of the case and the FIR, it is clear that the police have used their powers to restrict the free flow of communication within the state so as to minimise the negative effects of the incident on themselves. Only time will tell how the Supreme Court reacts to this question and whether the age-old provisions under the UAPA laws will be declared unconstitutional.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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All about legal proceedings against Ullu app

By

Oishika Banerji

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November 30, 2021

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This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the legal proceedings that were initiated against the Ullu app and its owner and country head.

Table of Contents

Introduction

The COVID-19 pandemic resulted in the closure of several businesses and people losing their livelihood. But if we look at it from the perspective of Mr. Vibhu Agrawal it was an opportunity for his business idea to grow. He simply focused on creating and uploading adult content through his online streaming platform Ullu. This was a breakthrough for his idea as during the pandemic his app and soft porn content gained massive popularity amongst the netizens. Although his idea gained him lots of subscribers at the same time it also attracted heavy criticism for streaming erotic and adult content.

About Ullu App

Ullu app was launched in December 2018 and gained popularity for its edgy and erotic content. It is a video-on-demand streaming platform, owned and maintained by Mr. Vibhu Agrawal. The app has always been criticised for its adult content.

Legal trouble for Ullu App

Ullu app is a platform that streams adult erotic content. During the COVID-19 lockdown, the Ullu app gained huge recognition in the adult video streaming market. Statistics show that during the lockdown, the Ullu app’s subscriber count increased by 225% and dropped by 150% during the unlock process. Still, there is a good number of active subscribers using the app.

Being criticised for its content, an FIR was registered by the Maharashtra Cyber Department against over-the-top platforms including Ullu App and 7 other apps. These apps were allegedly transmitting sexually explicit and obscene content online. The FIR was registered on the ground that the content provided by these apps can have a catastrophic effect on young minds and can lead to the disintegration of a woman’s dignity.

Along with this, another FIR was lodged by the former legal advisor of Ullu App against the CEO Mr. Vibhu Agrawal and Country Head Ms. Anjali Raina. The FIR was lodged against the CEO and Country Head for extortion and molestation of the former legal head of the App. The victim has stated that she was sexually and mentally harassed at the workplace in the name of an investigation. In this article, we will discuss two scenarios in which legal proceedings were initiated against Ullu App and its key managerial person.

FIR for depicting pornographic content

An FIR was lodged against Ullu and 7 other over-the-top platforms for displaying pornographic content on their platform. The FIR was registered by Maharashtra Cyber Department under the following sections:

Sale, etc. of obscene books, etc

Section 292 of Indian Penal Code 1860 states, a book, pamphlet, paper, writing, drawing, painting, representation, etc, shall be considered obscene if it is lascivious or appeals to the lubricious interest of an individual and tends to corrupt or deprave the mind of an individual.

If a person is involved in:

Selling, distributing, or circulating any obscene books, pamphlets, etc or,
Is involved in importing, exporting, or conveying any such obscene object or
Takes part or receives profit from any such business where he knows there is an involvement of buying or selling of such obscene object in the business, or
Advertises any such obscene object or
Offer or try to do any such act which violates this Section

Then such person shall be punished with imprisonment of a term that may extend to 2 years and a fine which may extend to two thousand rupees.

Punishment for publishing or transmitting obscene material in electronic form

Section 67A of the Information Technology Act 2000 states, whoever publishes or transmits in electronic form any material which contains sexually explicit act or conducts any such obscene act, then the individual shall be punished with imprisonment for a descriptive term that may extend up to 5 years and a fine which may extend to five lakh rupees and for subsequent act imprisonment extending up to 7 years and fine which may extend up to ten lakh rupees.

Prohibition of the advertisement containing indecent representation of women

Section 3 of the Indecent Representation of Women (Prohibition) Act, 1988 states that nobody shall indulge in publishing any material that depicts an indecent representation of women in any form.

Prohibition of publication or sending by post of books, pamphlets, etc., containing indecent representation of women

Section 4 of the Indecent Representation of Women (Prohibition) Act states that nobody shall engage in production, circulation, or distribution of any book, pamphlet, paper, slide, representation, or figure which contains indecent representation of women in any form. Exceptions to this Section:

Any book, pamphlet, or representation where the use of such figures is proved to be justified for the public good on the ground that such figures are in the interest of science, literature, or any other learning object
Any represented sculptor or art that is justified on the ground that such figures represent any ancient monument within the meaning of the Ancient Monument and Archaeological Sites and Remains Act, 1958 or are used or kept for bonafide religious purpose
Any such figure or representation is made in a movie that falls under Part 2 of the Cinematograph Act, 1952.

Details of the FIR

The FIR was only lodged against the CEO and the directors of the streaming platform. The artists who were part of the obscene acts were not brought under the ambit of FIR. The police in their statement stated that the videos and obscene material published on these streaming platforms are not certified by any certifying agency. They also added that the artists (especially women) used in these videos would not be treated as accused but as a victim because these artists had likely been exploited, lured, or compelled to act in the obscene videos.

On registering the FIR, the summons was sent by the Maharashtra Cyber Department to the executive members of the OTT platforms which include CEO Mr. Vibhu Agrawal of the Ullu app. The Maharashtra cyber department also asked the owners of the OTT platforms to take down their content but not to delete them as they could be used for investigation purposes. Although no arrests were made by the police. The police had asked the owners of these OTT platforms to be present before the police for inquiries about creating, publishing, and uploading obscene content. As of now, owners and other key managerial personnel of the Ullu app are beyond the risk of proceedings, as the compliance had been made by Ullu for restricting the streaming of adult content.

In an interview with the Indian Express, the CEO of the Ullu app talked about censorship of content present in the OTT platform and compliance with rules and schemes of the Information and Broadcasting (I&B) Ministry. Mr. Vibhu Agrawal talked about launching Ullu 2.0 which will have regular content that will adhere to applied censorship rules. He also said that there is a market for erotic content in India and the existing censorship rules will affect their business negatively. He further added that the OTT platform has given them the liberty to show their creativity and no doubt people have enjoyed it.

FIR for sexually and mentally harassing the former legal advisor of Ullu App

The owner of Ulu App Mr. Vibhu Agrawal has not only been charged for providing adult content but was also charged for mental and sexual harassment. On August 6, 2021, an FIR was lodged against CEO Mr. Vibhu Agrawal and Country Head Ms. Anjali Raina of Ullu Digital Pvt. Ltd at Mumbai’s Amboli Police Station. The FIR was filed by the former legal head of Ullu Digital Pvt Ltd as Mr. Vibhu Agrawal was trying to frame her in a fake extortion case and also tried to harass her sexually and mentally. The Mumbai police had booked Mr. Vibhu Agrawal under the following provisions of the Indian Penal Code:

Sexual harassment and punishment for sexual harassment

Section 354A of the Indian Penal Code states a man will be guilty of the offence of sexual harassment if he,

Commits any act to gain physical contact and tries to involve in an unwelcome sexual act or asks or demands sexual favours or forces a woman to watch pornography, then he shall be punished with rigorous imprisonment that may extend to three years with a fine makes sexually coloured remarks.
If a man makes sexually coloured remarks then he shall be punished with imprisonment for a descriptive term and can also be liable for a fine.

Assault or use of criminal force to woman with intent to disrobe

Section 354B of the Indian Penal Code states, if a man tries to use physical force over women to compel her to be naked then he shall be charged with the offence of committing assault or use of criminal force against a woman with an intent to disrobe. Such person shall be punished with the imprisonment of a descriptive term not less than three years which may extend to seven years also and can also include a fine.

Punishment for Criminal Intimidation

Section 506 of the Indian Penal Code states, if a person is guilty of the offence of criminal intimidation, he shall be punished with imprisonment that may extend to two years or fine or both. If such person threatens to cause death, grievous hurt, or destruction of the property then such person shall be punished with imprisonment that may extend to 7 years. If a person tries to characterize unchastity to women then he shall be punished with imprisonment that may extend to 7 Years.

An act done by several people in furtherance of common intention

Section 34 of IPC states that several people committing a criminal act with a common intention shall be held equally liable for the offence.

Complaint filed by the legal head of Ullu

In her complaint, the victim stated that she was the legal head of Ullu Digital Pvt. Ltd. She alleged that:

Mr. Vibhu Agrawal forced her to attend the screening of erotic content in the editing room and do quality checks for the same.
He used to send late-night messages and forced her to watch erotic content and discuss vulgar scripts.
Mr. Vibhu Agrawal along with Country Head Ms. Anjali Raina of Ullu Digital Pvt. Ltd. has harassed her mentally and sexually.
Mr. Vibhu Agrawal also tried to molest her in the storeroom that was situated at the back of his office.

But in a shocking turn of events, the former legal advisor of the Ullu app who was the victim in this case was arrested by Lucknow Police. According to an Ullu Digital Pvt. Ltd spokesperson, a complaint was filed against the legal advisor of the company with the Lucknow cyber cell. The complaint was filed against her for cheating and extortion of money. This complaint was filed by Ullu’s Administration on 10^th June 2021. Currently, the victim, herein the former legal advisor, has been arrested by Lucknow police.

Cancellation of the anticipatory bail

Actress Sagarika Shona Suman has asked for the cancellation of interim anticipatory bail granted to Ullu Digital Pvt Ltd CEO Vibhu Agarwal and country head Anjali Raina. Sagarika Suman has asked for cancellation of bail on the following grounds:

Amboli police station has completely supported the accused during the proceedings.
No female investigation officer was appointed as this was a case of crime against women.

As of now CEO Mr. Vibhu Agrawal and Country Head Ms. Anjali Raina both have been released on interim anticipatory bail.

Conclusion

During the COVID-19 lockdown, OTT platforms have gained immense popularity. Their subscriber count has drastically increased for streaming strong and erotic content which was highly enjoyed by their users. But among these people, several other groups raised voices against the content depicted by these platforms. Several FIRs and Complaints were made against content aired on these platforms. Looking at the criticism against content aired on OTT platforms, the Ministry of Broadcasting introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The IT Rules 2021 designed a code of ethics to categorize content on an age-appropriate basis, restrict access to, and implement an age verification mechanism.

With the introduction of these IT Rules, 2021 platforms such as Ullu will be heavily regulated and may lose their current popularity which he gained through erotic and soft porn content. But Mr. Vibhu Agrawal believes there is a huge market for this adult content in India and if censorship is applied then the market will lose its essence.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://t.me/joinchat/L9vr7LmS9pJjYTQ9

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All you need to know about from framing to serving a notice of commencement of arbitration

By

Abanti Bose

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November 30, 2021

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This article is written by Kunal Nema, pursuing Certificate Course in Arbitration: Strategy, Procedure and Drafting from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

Arbitration is becoming increasingly important in resolving conflicts between parties. When compared to the Indian court system, it has proven to be a viable option. Arbitration in India is controlled by Indian Arbitration Act and the arbitration agreement must be signed by all the parties before it can take effect. The parties are required to follow specific stages in the Arbitration process. While each case is unique, variations in facts and circumstances may cause the standard method to be altered. Commercial arbitration is currently the primary means of dispute settlement for complex commercial issues. The judicial system is and has been for some time, clogged and burdened with a massive backlog of cases. It is not unusual for matters to be stuck in the judicial system for more than a decade pending resolution, particularly if the matters are of high value or are complicated in nature. As a result, including arbitration clauses in all large transactions and agreements is becoming the standard practice. In case a dispute has arisen and the party has opted to follow the procedure of arbitration, then the party against whom the default has been committed will send a notice for invoking the steps of the arbitration process between the parties.

How is the arbitration process commenced?

If a dispute arises and a party chooses to resolve it through arbitration, the party who has been defaulted against will send a notice of arbitration, which will initiate the arbitration process between the parties.

The existence of a disagreement and the aggrieved party’s invocation of the arbitration agreement must be highlighted in a notice to the other side to initiate an arbitration. Typically, such notice will be accompanied by another notice emphasizing the nomination of an arbitrator and requesting the other party to nominate an arbitrator for constituting a tribunal.

Following that, the other party will appoint an arbitrator. If the other party chooses to go to court instead of arbitration, the party who requested arbitration can submit an application under Section 8 of the Arbitration and Conciliation Act, 1996. A Section 8 application must be submitted to the High Court in the relevant jurisdiction, which has been given the exclusive power to hear any disputes arising under the arbitration agreement or arbitration clause in the agreement.

According to Section 8 of the Arbitration and Conciliation Act of 1996 (the Act), if a dispute has already been subjected to arbitration and is still being brought before a judicial authority, the judicial authority can refer the matter to arbitration upon the other party’s request. Before filing the first statement on the merits of the case, this application must be filed. It is quintessential that this application is submitted before the first statement on the merits of the case is filed.

How to appoint arbitrators?

The parties mutually agree on the arbitrator’s appointment and appoint him or her. In the arbitration agreement or clause, the parties agree on who will resolve the issue and name the arbitrator who will do so. If the parties are unable to agree on or nominate an arbitrator, Section 11 of the Arbitration and Conciliation Act, 1996 states that the parties must file an application for an appointment of an arbitrator.

When the procedure outlined in subsection 11(2), (3), (4), or (5) has not been followed, a section 11 application is to be filed with the Supreme Court or the High Court concerned for the appointment of the tribunal.

Modes for appointment of arbitrators

There are three modes for the appointment of an arbitrator in India:

Ad-hoc appointment,
Court-appointed,
Institutional.

The ad hoc appointment approach, as defined by Section 11(2) of the Act, is prevalent. It becomes the most preferred technique because most parties have the freedom to pick an arbitrator as they see fit. When a party fails to meet the responsibilities for the constitution of the arbitral tribunal as agreed upon under the arbitration agreement, the court appoints the tribunal. When an arbitral institution is named in the arbitration agreement to handle the issue, the tribunal will be appointed in accordance with the institution’s norms.

In Indian Drugs & Pharmaceuticals Ltd. Vs. Indo Swiss S. Gem Mfg. Co. Ltd., it has been held that no retired High Court Judge can be appointed as an arbitrator by the court when the arbitration clause states categorically that the difference/dispute shall be referred to an arbitrator by the Chairman and Managing Director of IPDL who was the appellant in this case.

In National Aluminium Co.Ltd v. Metalimpex Ltd., a Bangladeshi company failed to nominate its arbitrator in terms of the arbitration agreement on an application under S.11 of the Arbitration and Conciliation Act, 1996, the Chief Justice of India nominated an arbitrator to act on behalf of the Bangladeshi company.

How many arbitrators can be appointed?

Section 10 of the Arbitration and Conciliation Act, 1996 states that:

Parties are entitled to nominate as many arbitrators as they wish, but the number of arbitrators appointed must not be equal.
If the parties cannot agree on the number of arbitrators within 30 days of making the request, they may appeal to the arbitration tribunal, which will appoint a sole arbitrator.

Only when there is a conflict of opinion amongst an even number of arbitrators does the topic of appointing a Presiding Officer arise. The third arbitrator can be appointed in one of two ways:

by the parties themselves at the time of submission, or
by the arbitrators themselves.

The arbitrators are presumed to have entered into the reference as soon as they accept their appointments and communicate with one another about it. There is a disagreement when one of the arbitrators refuses to act or agree on the nomination of a third arbitrator, and in such an event, the Chief Justice of the High Court is competent to designate the presiding arbitrator.

Eligibility criteria for arbitrators

The criteria for ineligibility for appointment as an arbitrator are set forth under Section 12 of the Act. The appointment of an arbitrator may be contested if there are circumstances that raise reasonable doubts or if the arbitrator does not meet the parties’ agreed-upon qualifications. The Act’s seventh schedule specifies the circumstances in which the appointment of an arbitrator is ineligible. These include current or previous professional affiliations with any of the parties as an employee, consultant, representative, lawyer, director, or manager/advisor. Personal relationships are also taken into account, such as the arbitrator being a close family member or having a personal link with any of the parties, or someone managing or controlling any of the parties. It also includes situations in which the arbitrator has a financial investment or interest in one or more of the parties.

How to draft a notice of commencement of arbitration?

The initiation of the arbitration is stated in Section 21 of the Arbitration and Conciliation Act of 1996. The conflict commences on the date the responder receives a request for the matter to be submitted to arbitration. Parties are required to respond to the legal notice from the time they receive it until the expiration of the time limit specified in the notice.

Things to remember while drafting a notice of commencement of arbitration

It is imperative to demand that the dispute be referred to arbitration.
The parties.

Names, registered address(es), place of incorporation (if a company) or residence, telephone number(s), facsimile number(s) and electronic mail address(es), if known, of each of the parties to the arbitration and their representatives, if any.
For State-Respondents, identify (if any) the relevant department / governmental body.
The Arbitration Agreement/clause
Make sure to incorporate a reference to the arbitration clause or the arbitration agreement that is being invoked(and annex a copy of it).
If needed, show how the aggrieved party can avail itself of the arbitration clause/agreement.
Show how the pre-conditions to the arbitration have been duly met.
The Contract/Agreement
If possible, attach a copy of the contract (or other instruments [e.g., investment treaty]) out of or in connection to which the dispute arises.
The Dispute between the parties

Include a brief statement describing the nature and circumstances of the dispute.
Rule of law applicable to those disputes.
Indicate the specific breaches/violations committed by the respondent.
State the Procedure/conduct of Arbitration

State choice of rules, unless earlier agreed. Propose, if none.
State any procedures to which the parties have previously agreed.
State any procedures which the Claimant wishes to propose.
Consider suggesting e.g. language of arbitration and location of hearings.
Appointment of Arbitrators

Unless the parties have agreed otherwise, state the nomination of arbitrator(s).
They should be odd in number ignorer to avoid an equal ratio.
Not complete description of facts and issue

May wish to state that the Request / Notice is not the Claimant’s full Statement of Claim or Case.
That it is not a waiver of rights, remedies, or claims-legal or equitable.

Conclusion

The author concludes that the notice of commencement under Section 21 of the Act, Notice of Commencement of Arbitration is the first and foremost step to Arbitration and acts as a fulcrum of the Arbitration proceedings and without such notice, the arbitration proceedings would be unsustainable in law. It is quintessential that the notice is impeccably drafted as it is the driving force that catapults the process of Arbitration and paves the way for the party towards just and equitable relief in the form of an Arbitral Award.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/L9vr7LmS9pJjYTQ9

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Recognition of sovereignty and data localisation

By

Oishika Banerji

-

November 29, 2021

0

This article has been written by Aryashree Kunhambu pursuing the Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho.

Table of Contents

Introduction

Data localisation has become a significant policy issue globally, primarily due to the fear that a nation’s sovereignty will be threatened if it is not able to exercise full control over the data stored outside its borders for national security and law enforcement purposes. This is particularly relevant to nations such as the US and China due to their dominance in many areas of the digital ecosystem such as artificial intelligence, cloud computing and 5G telecommunications. These technologies are heavily reliant on or produce data and such data can be used for many purposes such as national security, business growth, fraud detection or even scientific discovery. By defining how such data is collected, where it is stored, for what it is used and transferred, can have a significant impact on industry growth, geopolitical relationships and civil society. Today, various stakeholders across this landscape want to ensure that the data of their customers is stored safely and securely and it is this common interest that is motivating nations to implement data protection laws. This article will examine whether data localization is an effective policy for India to safeguard its sovereignty and preserve its ability to oversee how citizens’ and inhabitants’ data is used.

What is data localisation?

Data localisation is a policy measure that restricts the free flow of data across geographic boundaries. It means that data that is created within the borders of a certain nation should stay within them and is almost always applied to the creation and storage of personal data. Several methods to employ such data localisation policies can be used for example in some jurisdictions such as Vietnam, firms are only supposed to keep locally a copy of the data transferred, whereas, in other jurisdictions such as China and Russia, data stored domestically is not allowed to be transferred outside territorial borders to enhance sovereign control over citizens’ data. These laws are subject to international agreements and treaties signed between the host nation and its international partners.

Data localisation policies have significantly departed from the existing design principles of the internet which are premised on the free flow of data. Some have argued that while due to the free flow of data, local consumers have been able to access a plethora of innovative products and services stationed outside their domestic countries, local producers have not benefited. Therefore, any data localisation policy that is employed must be tailor-made to promote security and domestic control on one hand and maintain economic innovation and global relations on the other.

Why are regulators demanding data localisation?

Emerging technologies such as artificial intelligence, advanced analytics, the Internet of Things, cloud computing etc., use and produce vast amounts of data. Exercising control over such data on behalf of citizens and inhabitants becomes necessary for purposes such as national security and innovation. For example, in times of a worldwide pandemic, the intellectual property of a vaccine cure is a high-value asset to a country and must be protected for national security and economic purposes. Thus, data sovereignty or control over data is often claimed through domestic policy creation, geopolitical power and international treaties and agreements.

Today, digital dominance is becoming a key concern for the implementation of data localisation laws as such dominance poses a threat of foreign government interference and power to infringe upon the sovereignty of other nation-states. A driving force behind the proliferation of data protection laws globally is to curb foreign governments from accessing personal data (by request or force) outside of their jurisdiction. Moreover, a neo-colonial dependency on multinational technology companies has also made such entities a primary focus under the privacy regime. Regulators fear that by controlling access to technology by countries that own most of these companies (the USA and China), they will have the power to control other aspects of civil life.

Four key concerns of countries demanding data localisation are compiled as follows –

Difficulty in accessing personal data saved on foreign servers for national security and law enforcement purposes;
Loss of economic benefits to local firms due to exploitation of data by foreign firms;
Enabling foreign surveillance;
Misuse of personal data via unauthorised sale and violation of privacy rights.

Data localisation landscape in India

Data localisation has become a significant policy issue in India due to the perceived economic benefits of processing consumer data especially to small business establishments in India along with other difficulties in accessing personal data for law enforcement. While there are several sector-specific data localisation measures (e.g., relevant sections of Indian Companies Act 2013, The Reserve Bank of India’s Directive 2017-18/153 (April 6, 2018) issued under the Payment and Settlement Systems Act 2007, IRDAI (Maintenance of Insurance Records) Regulation, 2015), the national personal data protection bill proposed in the Indian Parliament in 2019 is still being debated and considered.

The Personal Data Protection Bill 2019 is the first country-wide data localisation framework and is based on the report produced by the Committee of Experts under the chairmanship of Justice B.N. Srikrishna. The report provides a detailed explanation for proposing localisation of personal data in India and states four objectives for pursuing it –

Securing personal data for faster and easier access for law enforcement;
Increasing economic growth and boosting employment opportunities;
Preventing surveillance by foreign countries;
Enforcing data protection laws.

The 2019 data protection bill has classified personal data into different categories and accorded different levels of security with regard to cross border transfers for processing and storage. According to the bill, ‘sensitive’ personal data (which includes financial information) must remain in India but a copy of it may be transferred outside the country subject to certain conditions namely –

Explicit consent is given by the data principal; the transfer is pursuant to a contract or intra-group scheme approved by the Data Protection Authority;
The country is deemed to provide adequate protection as per the government;
Specific authorization of the transfer by the Data Protection Authority.

The bill stipulates that ‘critical’ personal data cannot be taken out of India except under very exceptional circumstances. All other data which is not ‘sensitive’ or ‘critical’ in nature can be moved out of India freely. Therefore, the Indian Government’s proposal for data localisation must be valued on how well they would achieve the democratically articulated objectives.

Is data localisation an effective policy for India?

Data localisation, to be an effective policy regime must achieve the objectives of proposing the same in such a manner that the demerits of such a policy seem to be insignificant. While analyzing the Srikrishna Committee Report and the study conducted by Carnegie India on how data localisation would benefit India, I have reached the following conclusions –

Local storage is not the only way to ensure effective access for law enforcement or regulatory purposes

Data localisation is unlikely to help India achieve the objective to access data easily. For example, it would not enable access to data in cases where the data sought by Indian law enforcement is stored in another country subject to their municipal laws. The best way to obtain this data or establish jurisdiction over it is by entering into international agreements that allow hassle-free information sharing and establishing direct jurisdiction over firms operating in India. Law enforcement and national security objectives may be better served by a combination of two strategies – firstly, light touch localisation requirements (storage of local copy in India, while the data can be processed and stored globally) and secondly, by way of bilateral and multilateral agreements that enable India to access data stored outside its jurisdiction.

Local storage does not necessarily improve the domestic economy

Local storage of data could promote India’s objective to enhance economic growth and employment. It could drive up the demand for goods and services in India and give a slight competitive edge to local producers over their foreign competitors. All these possibilities are subject to various contingent factors, such as –

local storage would require companies to invest in creating storage facilities which would in turn increase prices and limit ICT goods and services, whether Indian firms would be able to adapt to these changes?
would such high costs act as a barrier to market entry and in turn suppress entrepreneurial activity in the country?
whether indigenous firms would meet the demand for data centres or would India have to rely on imports, which would not add to the GDP?
whether there would be any retaliatory measures by other countries on Indian service-sector exports?

However, data localisation is not required to give greater access to consumer data for innovation as localisation in itself does not advance jurisdictional claims as discussed above.

Local storage does not prevent foreign surveillance entirely

Prevention of surveillance is a legitimate state interest of every sovereign state. The Justice Srikrishna Committee’s report and the draft National E-Commerce Policy Report have anticipated the role of localisation in preventing foreign surveillance. Nations specifically are interested in preventing the surveillance of certain categories of individuals such as personnel dealing with defence and scientific materials, senior government officials etc. India already has data localisation measures in place to safeguard data and communications relating to government activities. Therefore, the data which needs to be protected is the personal data of government officials that are generated when they act as private citizens.

It is important to note here that their personal information on social media websites and other platforms can be accessed by foreign governments legally as per their municipal laws if the data is stored in their jurisdiction. Even when data is stored in India, foreign governments determined to obtain such data will employ all possible measures to obtain such data. Edward Snowden, a former U.S. contractor for the Central Intelligence Agency in 2013 disclosed that the United States National Security Agency was surveilling the communications of foreign governments and citizens. This revelation highlighted the extent to which digital surveillance could be conducted. Thus, it can be concluded that data security features are better guaranteed to protect data rather than data localisation.

Local storage does not ensure enforcement of data protection laws or data security

Enforcement of data protection laws in India are already in place via local incorporation and establishment requirements rather than requirements that mandate businesses to locate physical infrastructure in the country. The enforcement of data protection laws under the proposed bill is contingent on foreign businesses establishing themselves in India and not on data localisation. It requires significant data fiduciaries to register in India. Therefore, the enforcement of data protection laws would be a result of their local registration in India rather than data localisation.

Hardware storage increases costs substantially and no longer provides the security assurance it once did. For example, Mastercard spent $350M out of its $1B investment on data localisation compliance in India. Cloud storage has improved security as the data stored is distributed over several systems rather than being stocked in a single location. Companies that specialise in cloud storage have also made heavy investments in their cyber security capabilities to gain consumer confidence. A small local producer would not have the resources or ability to build the same high-tech cybersecurity framework and would be at an increased threat of security breach. Thus, when it comes to data security, a reasonable measure of security must be accorded to data irrespective of where it is transferred to. Investment in infrastructure and maintenance is critical rather than focussing on the physical location of the data.

Conclusion

Today, there is no denying that emerging technologies are changing the way we live in a manner that was only fiction once. To establish trust in civic establishments, the government needs to balance innovation and growth with safety and security, especially when it comes to policies regarding the data of citizens and inhabitants. Ultimately, the best solution for Indian lawmakers is to enter into bilateral and multilateral agreements to resolve issues regarding access to data especially with countries whose domestic laws restrict access to data stored in their territory. This solution would certainly help law enforcement efforts during investigation and collection of evidence for prosecution. Mirroring of data is another method that can be employed to achieve both law enforcement and economic benefits through establishing legal jurisdiction over such data is essential in this method as well. Ultimately, when it comes to data security and prevention of foreign surveillance more reliance is put on technical infrastructure and storage of data locally has little to no effect. Keeping in mind all the above-mentioned pointers, the Indian government should aim for privacy policies that demonstrate a strong commitment to sovereignty, personal privacy and an equitable digital ecosystem in all allied nations.

References

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All you need to know about Geographical Indications of Goods (Registration and Protection) (Amendment) Rules, 2002

By

Diva Rai

-

November 29, 2021

0

GI_Image — Image source - https://bit.ly/3Gczyfh

This article is written by Nishka Kamath, a student at Nalanda Law College, University of Mumbai. It discusses all the major amendments and modifications carried on in the Geographical Indications of Goods (Registration and Protection) (Amendment) Rules, 2002.

Table of Contents

Introduction

There are a variety of goods that are either found naturally, cultivated agriculturally or are produced in a particular territory of a country, region or locality. These goods have particular characteristics either related to taste, aroma or quality and are marketed based on their place of origin or geographical indication. Geographical indications can be typically used for agricultural products, foodstuffs, wine and spirit drinks, handicrafts, and industrial products.

So, from having Darjeeling Tea or Kangra Tea after waking up to a smoothie made up of freshly chopped Alphonso Mangoes or a glass full of Nagpur Orange juice- post-workout, to dressing up in a Banarasi silk saree with Kolhapuri Chappal for a party and having biryani made up of Basmati Rice with a dash of flavoursome Alleppey Green Cardamom or Coorg Cardamom and Kashmir’s saffron, an individual comes across a wide variety of goods on a day to day basis, that has secured Geographical Indication (GI) rights.

As per the Government’s journal published on 21st September 2021, the recent Geographical Indications include:

Kullu Shawl from Himachal Pradesh,
Channapatna Toys and Dolls from Karnataka,
Kashmir Pashmina from Srinagar, Jammu & Kashmir,
Muga silk of Assam from Assam, inter alia.

The object of the Geographical Indication Act, 1999 is to provide for registration and better protection of geographical indications relating to goods. To further strengthen the Intellectual Property Ecosystem a Draft amendment related to the Geographical Indication of Goods (Registration and Protection) Rules, 2002 (hereinafter referred to as the ‘Draft Amendment Rules’) was released by the Ministry of Commerce and Industry, which is discussed below.

Brief history of the G.I. Act and Rules

When and why was the Geographical Indications Act introduced in India

We now know that GIs are indications used for goods that have a specific geographical origin and have characteristics or prestige due to their place of origin. Geographical indications are those precious rights that can be exploited by fraudulent commercial operators if they are not protected properly. This can cause harm to both, the consumer as well as the legitimate users.

Thus, in order to safeguard the interests of the consumers and users, the Trade-Related Aspects of Intellectual Property (TRIPS) Agreement was enacted. This agreement specifies minimum standards of protection of GIs with additional protection for wines and spirits. In congruence with the TRIPS Agreement, India took legislative action by enacting the Geographical Indications of Goods (Registration and Protection) Act, 1999, which became effective on 15th September 2003 and the Geographical Indications of Goods (Registration and Protection) Rules, 2002.

A note must be taken that, along with the TRIPS Agreement, there were 3 controversial cases related to Neem, Turmeric and Basmati rice which instigated the Indian government to implement a law for the prevention of unfair exploitation of GIs. There was a dire need for an extensive law for the registration and lawful protection to geographical indications and thus, the law was passed by the Parliament.

Why were the new Rules added to the G.I. Act

On 12th September 2019, the Ministry of Commerce and Industry by exercising its powers conferred under Section 87 of the Geographical Indications of Goods (Registration and Protection) Act, 1999 vide a Gazette Notification No. G.S.R. 645 (E), issued the draft rules on Geographical Indications of Goods (Registration and Protection) (Amendment) and also invited objections from the general public.

This amendment was carried on to further strengthen the Intellectual Property Ecosystem by deducting the GI registration process fees and easing the procedure for registration of an authorized user of the registered geographical indication.

Proposed Draft Amendment

As stated above, the new draft rules were issued and objections from the general public were invited. The objections were to be raised within 30 days from the date of notification, failure to which shall mean the public had no issues about the same. Also, only those objections which were brought up within the stipulated time were to be considered by the Central Government.

The proposed draft amendment had the following proposed amends:

Only proposed authorized users can submit an application

The Draft Amendment Rules aim to make amends in Rule 56 (1) of the Geographical Indications of Goods (Registration and Protection) Rules, 2002. This rule deals with the application of the producer as an authorized user of a registered geographical location.

The application to the Registrar for registration in accordance with Section 17 by the producer as an authorized user was to be submitted in Form GI-3 together by the producer and the registered proprietor. Whereas, the new rule proposes that the joint application be removed by the registered proprietor, and that, only a copy of the application be forwarded to the registered proprietor and thus, to inform the Registrar of the same.

Thus, as per the new proposed draft amendment, only the proposed authorized user can submit an application to the Registrar. Whereas, the previous law stated that an application was to be filed jointly by the registered proprietor and the proposed authorised user.

Moreover, the statement of the case of how the proposed authorized user claims to be the producer of the registered geographical indication was previously needed to be filed along with an affidavit, but, as per the new Draft Amendment Rules, the statement of case can be filed without any affidavit.

Requirement of Letter of Consent under Section 56 is recommended to be removed

According to the Draft Amendment Rules, the applicants must forward a copy of the application to the registered proprietor, and inform the Registrar of due service of the same. Also, the requirement for a copy of consent under 56 (2) has been eliminated.

Rule 59 (1) was recommended to be modified

For the registration of an authorised user entry in the register, where an objection is filed and dismissed, the Registrar can enter the authorized user in Part B of the register and shall have a registration certificate issued with the seal of Geographical Indication Registry. As per the previous Act, the Registrar had to wait until the end of the appeal period after the objection was dismissed for entering the authorised user in Part B of the register and the same was to be done with a prescribed amount of fees. But with the Draft Amendment Rules, the appeal period and the fees charged were proposed to be removed.

In other words, the registration certificate in Form GI-3 was to be allocated by the Registrar only after the receipt of a request along with the prescribed fees was submitted. But now, the Draft Amendment Rules state that the references in Form GI-3, receipt of request and payment of the predefined fees stand withdrawn.

Requirement of the Registrar to specify details

Earlier, the Registrar had to state and define all the particulars required under Section 6 (1) in the register of the authorized user.

However, with the Draft Amendment Rules, the need for the Registrar to specify the priority date and appropriate office of registry was eliminated. Thus, Clauses (f) and (g) of sub-rule (2) of Section 59 of the principal rules registry were excluded.

Rule 59 (3) was recommended to be modified

Previously, any request for duplicates or copies of registration was to be made in Form GI-7 along with an unmounted representation of the geographical indication we portrayed in the application form for registration.

But now, after the Draft Amendment Rules, the supplement of un-mounted representation of the geographical indication as per the application form is discarded.

In other words, sub-rule (3) of Section 59 will be modified and unmounted representation of the geographical indication will not be needed when registration of goods is carried on.

No fees to be charged for the registration of an authorized user of a registered GI

Earlier, in Schedule 1, under entry 3A, there was a prescribed fee of INR 500 (7 USD Approx.) which was to be paid for the registration of an authorized user of a registered geographical indication. With the new Draft Amendment Rules, this fee is removed, thus making the payment from INR 500 to nil. In the same manner, the fees for renewal under Entry 3C of the Schedule was reduced from INR 1000 (14 USD Approx.) to nil. Thus, there was a 100% reduction in the aforementioned fees.

Request for issuance of certificate procedure omitted

Earlier, the request for a registration certificate was to be made in Form-GI-3. But with the Draft Amendment Rules, the procedure of requesting for issuance of the certificate is omitted.

Entry in Schedule-II deleted

Under the Draft Amendment Rules, the entry in Schedule-II will be deleted and entry no. 3C will be substituted as entry no. 3B.

Form GI-3 amended

Previously, the form consisted of three entries, that is:

A for application,
B for a request for the issuance of the certificate, and
C for renewal.

With the new Draft Amendment Rules, the form consists of only two entries, they are:

A for application, and
B for renewal.

Since no objections and suggestions were issued from the public in respect to the said rules, the Central Government in the exercise of the powers conferred by Section 87 of the Geographical Indications of Goods (Registration and Protection) Act, 1999 amended the Act. It was further referred to as the Geographical Indications of Goods (Registration and Protection) Rules, 2002.

Some things one must know about the Geographical Indications of goods

Registration of Geographical Indications

An application for the registration of a GI must be submitted to the Registrar of the geographical indications in the format specified under the Geographical Indications of Goods (Registration and Protection) Act, 1999 (the GI Act) read with the Geographical Indications (Registration and Protection) Rules, 2002 (the GI Rules).

Duration of Protection

A geographical indication is registered for a time span of 10 years and the renewal of the registration can be done from time to time for a period of 10 years on a stretch.

Protection of Geographical Indications

There are four methods in which geographical indications can be protected:

the so-called sui generis system (i.e. special regimes of protection),
by using collective or certification marks,
through procedures that focus on business practices, including administrative product approval schemes, and
through unfair competition laws.

A note must be taken that these methods have been advanced in accordance with several distinct legal traditions and within a framework of an individual’s historical and economic conditions.

Prohibition of Registration of certain geographical indications

Certain goods prohibit the registration of certain geographical indications, some of them are:

the usage of which is likely to be misleading or that which can cause complication, or
the usage of which would contradict any law for the time being in force, or
which incorporates disreputable or improper matter, etc.

Infringement of Geographical Indications

Under the Geographical Indication of Goods (Registration and Protection) Act, 1999, forgery of a geographical indication will attract a penalty which is punishable by imprisonment for a term which may not be less than six months but may be extended to three years and a fine not less than INR 50,000 (approx. USD 800), but may extend to INR 2,00,000 (approx. USD 3,000).

Current update

On 26th August 2020, the Ministry of Commerce and Industry (Department for Promotion of Industry and Internal Trade) vide notification G.S.R. 528(E) have made amends in the Geographical Indications of Goods (Registration and Protection) Rules, 2002. These rules will now be called the Geographical Indications of Goods (Registration and Protection) (Amendment) Rules, 2020 (hereinafter referred to as ‘GI Rules 2020’). Changes have been carried out in Section 56 and Section 59, inter alia.

Conclusion

The laws on the geographical indication of goods are not very old in India. With the rapid growth in technology and globalisation, there is a requirement for additional protection of traditional knowledge of various localized communities. Particularly, when foreign companies are attempting to abuse conventional ancestral knowledge without proper approval, it is high time to make the protection under geographical indications available to all, that too, on a large scale.

Thus, bringing amends to these rules is a positive step forward. The simplification of procedures for registration of GIs and authorized users as well as a significant reduction in registration and renewal fees will go a long way in helping the communities to safeguard their products under these laws.

References

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