Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., while addressing the grievance of UPSC aspirants in regard to cancellation of interviews to be held by the Selection Committee observed that,

Selection to the civil services, especially the IAS – a coveted service, cannot be a whimsical process. It has to follow certain norms, procedures and discipline.

Background

20 Non-State Civil Service Officers of the State of Rajasthan aspirants for the appointment of Indian Administrative Service of Rajasthan Cadre filed the present petition in the Non-SCS Category.

Purpose of filing the present petition was to challenge the letter issued by the Union Public Service Commission (UPSC)/ Respondent 1, in accordance to which interviews scheduled by the Selection Committee was cancelled.

Analysis and Findings

Bench stated that it is only considering the question of maintainability of the present petition and three aspects of maintainability i.e.

  • Territorial Jurisdiction of this Court to hear the writ petition
  • Forum non-conveniens
  • Availability of an alternate remedy in the form of CAT under Section 14 of the Central Administrative Tribunals Act, 1985

Territorial jurisdiction:

The primary grievance of the petitioner is against the Central Government and the UPSC and not the State of Rajasthan. Interviews that were to be taken place in Delhi.

This Court clearly had territorial jurisdiction, since the cause of action arose within the territory of Delhi and further because of the fact that both the UPSC and Central Government are within the jurisdiction of this court.

Forum non-conveniens:

Insofar as forum non-conveniens is concerned, the said principle is merely applied in order to determine the most convenient forum, with respect to the dispute.

Bench stated that due to hearings and transmission of records being virtual in any case, because of the pandemic, this Court does not feel compelled to reject this writ petition on the ground of forum non-conveniens.

Availability of alternate remedy:

Whether the Petitioners ought to be relegated to CAT, Jaipur Bench, to avail of their remedies under Section 14 of the Act?

In Savitur Prasad v. Union of India, 2017 SCC OnLine 12297, Division Bench observed as under:

“It is also trite to state that the scope of interference by a High Court in service matters and disciplinary proceedings under Article 226 of the Constitution of India, is permissible only in cases of demonstrable lack of jurisdiction and perversity.”
Bench in the instant matter observed that High Courts have power to exercise jurisdiction, even if there is an alternative remedy inter alia on several grounds:
  1. If there is a violation of the Principles of Natural Justice;
  2.  If there are unprecedented or extraordinary circumstances that warrant exercise of jurisdiction under Art.226;
  3. The need to render substantial justice;
  4. If the act complained against is patently erroneous or perverse;
  5. If there is demonstrable lack of jurisdiction or perversity;
  6. If relegating the parties to CAT would not render substantial justice.
  7. The exercise of power under Article 226 is discretionary and depends on the question whether circumstances warrant;

While applying the above principles, the decisions of different courts are disparate and depend on the facts and circumstances of each case.

Court held that in the present case certain unusual and extraordinary circumstances are present.

Further, the Court added that, petitioners were left to suffer as the interviews were cancelled less than 24 hours before the scheduled time. Thus there appears to be some merit in the allegation of breach of Principles of Natural Justice as the Petitioners were never given an opportunity to deal with the allegations.

“…it is the settled position that the alternate remedy has to also be an efficacious remedy.”

Relegating the Petitioners to approach CAT would lead to further delays in their candidature being considered for selection to the IAS.

Supreme Court has in its recent decision on 7-10-2020, in Commissioner of Police v. Umesh Kumar, 2020 SCC OnLine SC 810 observed that irregularities in public recruitment have become a bane, leading to litigation in both Courts and Tribunals across the country.

Court in view of the above analysis made an observation that,

The cancellation of interviews as in the present case is not to be viewed solitarily as a one-off incident. It represents a deeper malaise in the selection, which ought to be conducted fairly and in a transparent manner.

When the Court finds that the selection mechanism is being impeded, successively, it cannot turn a blind eye.

Present case would require interference by the exercise of writ jurisdiction in order to examine as to whether the prescribed norms for selection were adhered to, and if not, then, to consider the remedial measures. The circumstances in the present case accordingly warrant interference under Article 226 of the Constitution. [Akul Bhargava v. UPSC, WP (C) No. 3509 of 2020, decided on 09-10-2020]

Know thy Judge

 

“ (…)Judgments of Courts are to be based on reason, and discuss fairly, what is argued. Judges, unlike other sections of members of the public cannot meet unjustified personal attacks or tirades carried out against them, or anyone from their fraternity; no clarifications can be issued, no justification is given; propriety and canons of judicial ethics require them to maintain silence.”

  – Justice Ravindra Bhat,

 CPIO, Supreme Court v. Subhash Chandra Agarwal,

2009 SCC OnLine Del 2714.


As a Judge at Supreme Court


  • Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727; While clarifying the position of anticipatory bail in cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, S.Ravindra Bhat, J., in his concurring yet separate judgment brought into light, the forgotten sayings of greatest reformers of the Indian History reflecting upon the evil of caste distinctions.

“Kabir, the great saint poet, for instance, in his composition, remarked:

If thou thinkest the Maker distinguished castes:

Birth is according to these penalties for deeds.

Born a Sudra, you die a Sudra;

It is only in this world of illusion that you assume the sacred thread.

If birth from a Brahmin makes you a Brahmin,

Why did you not come by another way?

If birth from a Turk makes you a Turk,

Why were you not circumcised in the womb?…

       Saith Kabir, renounce family, caste, religion, and nation, and live as one”

Guru Nanak, for instance, stated [Guru Granth Saheb, p. 83]:
   “Caste and dynastic pride are condemnable notions; the one Master shelters all existence. Anyone arrogating superiority to himself halt be disillusioned. Saith Nanak : superiority shall be determined by God.”

Making significant observations on the principle of Fraternity, Justice Bhat observed that,

“When the Framers of the Constitution began their daunting task, they had before them a formidable duty and a stupendous opportunity : of forging a nation, out of several splintered sovereign States and city States, with the blueprint of an idea of India. What they envisioned was a common charter of governance and equally a charter for the people. The placement of the concept of fraternity, in this context was neither an accident, nor an idealised emulation of the western notion of fraternity, which finds vision in the French and American Constitutions and charters of independence. It was a unique and poignant reminder of a society riven with acute inequalities : more specifically, the practice of caste discrimination in its virulent form, where the essential humanity of a large mass of people was denied by society—i.e. untouchability.”  Read More

  • Rambabu Singh Thakur v. Sunil Arora, 2020 SCC OnLine SC 178;  Hearing a contempt petition against a PIL on public disclosure of criminal antecedents of politicians, a Division Bench of RF Nariman and S. Ravindra Bhat, JJ., observed,

It shall be mandatory for political parties [at the Central and State election level] to upload on their website detailed information regarding individuals with pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the court concerned, the case number, etc.) who have been selected as candidates, along with the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.”  Read More

  • Rajendra Diwan v. Pradeep Kumar Ranibala, 2019 SCC OnLine SC 1586; While holding Section 13(2) of the Chhattisgarh Rent Control Act as unconstitutional, a full judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ., observed,

While exercising power under Article 136 of the Constitution, the Supreme Court does not re-appreciate evidence which has been appreciated by the Trial Court and the High Courts, unless extraordinary circumstances exist. It is only where the High Court has completely missed the real point requiring adjudication or has missed or ignored the relevant material, would the Supreme Court be justified in getting into evidence for the purpose of preventing grave injustice to a party.” Read More

  • Mukesh Singh v. State (Narcotic Branch of Delhi), 2020 SCC OnLine SC 700; A full judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ has held that the accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is not entitled to an acquittal as a blanket rule merely because the complainant is the investigating officer. The Court said that;   

“… merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis.” Read More

  • Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571; In a reference dealing with the interpretation of Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the three judge bench of RF Nariman, S. Ravindra Bhat and V. Ramasubramanian, JJ., held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record. Read More

As a Judge at Delhi High Court


  • Sanjeet Singh Kaila v. Union of India, 2017 SCC OnLine Del 8170; A Division bench presided by Justice Bhat, held that though the members of the Armed forces consent to the risk that comes with their enrollment in the forces, one is still entitled to a safe workplace with standard equipment.

In the words of Justice Bhat,

“(…) none can be insensible to the piquancy in the pageant of life; more so, those who enlist in the service of their country in its armed forces. Yet to fling that to their teeth when accused of exposing them to more than the risks they had bargained (as the HAL does, here) is to belittle their spirit of sacrifice, which this court finds insensitive, even offensive. A soldier or an air warrior like the petitioner can be expected to be aware of the “normal” risks that he undertakes to accept in the course of a career that is removed from the ordinary. That assumption of risk at the same time raises the threshold bar on his employer and those assigned by the employer to maintain the standards in respect of the workplace and the technical equipment, which such officers and warriors have to handle and live with.” Read More

  • BGP Products v. Union of India, 2018 SCC OnLine Del 12928; Striking down a government notification made under Section 26A of the Drugs Act, to restrict the manufacture and usage of an essential drug likely to be affecting the health of pregnant woman and youth mothers, Justice Bhat observed,

This court notices that the decision of prohibiting a country wide existing manufacturing base for Oxytocin, a life-saving drug (through the over hundred private licensed units spread across the country), for over three decades or so, on the one hand and reserving it to the public sector through a single manufacturing entity, which has no previous record in its production, is thus fraught with potential adverse consequences. One of the important directive principles of State Policy (Article 47) is the that “The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties..”. Maternal welfare too is considered a directive principle (Article 42).Correspondingly, the right of women, generally and pregnant women and young mothers in particular, to have a safe post-partum recovery and avoid risk of haemorrhaging that can be potentially fatal, is an integral part of Article 21 of the Constitution of India. The potential impact may or may not be direct; even if it leads to a few incidents, that would be a grave consequence contrary to public interest.”   

  • CPIO, Supreme Court of India v. Subhash Chandra Agarwal, 2009 SCC OnLine Del 2714; While directing the CPIO to release the information sought by the respondent applicant about the declaration of assets (and not the contents of the declarations, as that was not sought for) and holding the office of the CJI as a‘public authority’, significant remarks were made by Justice Ravindra Bhat, about the office of judges and exemption provided under Section 8(1)(j) RTI Act, 2005.

“In this Court’s opinion Section 8(1)(j) is both a check on the power of requiring information dissemination (having regard to its potential impact on individual privacy rights) as well as a mechanism whereby individuals have limited control over whether personal details can be made public. This safeguard is made in public interest in favour of all public officials and public servants. There can be no manner of doubt that Supreme Court and High Court Judges are public servants (K. Veeraswami established that). They are no doubt given a high status, and afforded considerable degree of protections, under the Constitution; yet that does not make them public servants any less. If that is the true position, the protection afforded by Section 8(1)(j) to Judges is of no lesser quality than that given to other public servants, in this regard. To hold otherwise: would be incongruous, because, members of the higher judiciary are held to self imposed obligatory Constitutional standards, and their asset disclosures are held (by this judgment), to be “information” held by the CJI, a public authority, under the Act; yet, they would be deprived of the protection that the same enactment extends to all those covered by it.”

  • Bayer Corporation v. Union of India, 2009 SCC OnLine Del 2469; Rejecting the claim of Bayer that the drug manufactured and sold by Cipla under the name of ‘Soranib’, was infact a spurious drug under 17-B of the Drugs and Cosmetics Act, 1940 and not a generic drug as contended, Justice Bhat held,

This Court is constrained to observe that the present litigation was what may be characterized as a speculative foray; an attempt to ‘tweak’ public policies through Court mandated regimes.”

The instant case discusses at length about patent linkage in Indian context and how imperative it is to balance monopoly rights of any patent holder and the public at large.

  • Mini Appa Kanda Swami v. M.Indra, 2016 SCC OnLine Del 5312; The Division Bench comprising of S. Ravindra Bhat and Deepa Sharma, JJ., held that demand for privacy by the spouse is not cruelty and also reiterated that High Court lacks the jurisdiction to dissolve a marriage on the doctrine of “irretrievable breakdown” under Section 13(1)(ia) of the Hindu Marriage Act.

“The Court further made observation, as to determination of cruelty for divorce stating, While considering whether a particular conduct constitutes cruelty or not, the social status of parties, cultural background, physical and mental conditions, customs and traditions etc. have to be considered. Mental cruelty can be assessed from the continuous unprovoked conduct of a spouse which causes embarrassment, humiliation, and anguish so as to render the other spouse’s life miserable and unendurable. This conduct should be of such gravity that the wronged party cannot be reasonably asked to put up with such conduct and continue to live with the other party.”  Read More


*Editorial Assistant, EBC Publishing Pvt. Ltd. 

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., allowed the injunction application filed by the TV Today Network finding they have established prima facie case in their favour.

Present suit was preferred by a media conglomerate which transmits and broadcasts news etc. through print as well as electronic media.

By the instant suit, the plaintiff sought a decree of a permanent and mandatory injunction against defendant 1 restraining him from making the systematic attack on plaintiff’s reputation by making false and baseless tweets.

Defendant 1 levelled allegations against the plaintiff and one of its main anchors of having taken a sum of Rs 8 crores to interview a personality presently in news. It was also alleged that at the time of the birth of the said anchor itself, nurse concerned made obnoxious remarks and that the said anchor is involved in making fake news. The said anchor was also compared to a person, who is facing extradition proceedings.

High Court found that the plaintiff made out a prima facie case in its favour.

Bench stated that till the next date of hearing, defendant 1 is restrained from directly or indirectly publishing, re-publishing, sending or posting any tweet or information either in the electronic form or through the internet, email, social media or any print or communication media whatsoever, the statement or post which is derogatory/defamatory in its contents to the plaintiff or its top management or its anchors or its other office-bearers.

Defendant 2 has been directed to suspend/block the Twitter handles of defendant 1 and to file the basic subscription information of the account holder of the Twitter accounts impugned i.e. ‘@theanuragkts’ and ‘@theanuragoffice’ in the Court and supply a copy thereof to the learned counsel for the plaintiff as a password-protected document before the next date of hearing. [T.V. Today Network Ltd. v. Anurag Srivastava, 2020 SCC OnLine Del 1354, decided on 24-09-2020]

Case BriefsHigh Courts

Delhi High Court: J.R. Midha, J., while addressing the present petition observed the principle laid down by the Supreme Court of India with regard to Industrial Disputes.

Challenge in the Present petition

Trade Union of PTI Employees and Federation of four PTI Employees’ Unions have challenged the retrenchment of 297 employees by the Press Trust of India.

Permanent and regular workmen have been retrenched while contractual workers have been retained. The principle of ‘last come first go’  has not been followed.

Reasons why retrenchment is violative of certain provisions of the Industrial Disputes Act

Further, it has been stated that retrenchment is violative of Section 25-N of the Industrial Disputes Act as PTI employs more than 100 employees and has not taken the prior permission from the State Government before retrenchment;

retrenchment is violative of Section 25-N of Industrial Disputes Act as three months notice/three months wages in lieu of notice has not been given;

retrenchment is violative of Sections 25-F and 25-G of the Industrial Disputes Act as one month notice indicating the reasons for retrenchment and the retrenchment compensation has not been given;

retrenchment is violative of Section 9A of the Industrial Disputes Act read with Clauses 10 and 11 of the Fourth Schedule as the service conditions of the employees relating to rationalization/technique were altered without notice;

the retrenchment is violative of Section 16A of the Working Journalists Act, 1955 as the reason for retrenchment was the liability for payment of wages and mandating promotional grades as per Clause 18(f) of Majithia Award;

the retrenchment is violative of Section 25-G of the Industrial Disputes Act as there is the substantial short payment of retrenchment compensation to the employees;

closure of Attendees, Transmission and Engineering departments is violative of Section 25-O of the Industrial Disputes Act as the closure was without permission and the retrenchment is illegal and mala fide to sabotage the continued disbursement of Majithia Award benefits and to discourage the employees to pursue their remedies under the Wage Board.

retrenchment constitutes an unfair trade practice as set out in clauses 5(a), (b) and (d) of the Fifth Schedule of the Industrial Disputes Act;

large number of employees have not yet received individual notice of their retrenchment; and the plea of “No work” of PTI is false and contrary to PTI work registers.

Analysis and Decision

Whether the writ petitions should be entertained in view of the statutory remedy available to the retrenched employees under the Industrial Disputes Act?

Bench while deciding the present matter observed that,

The law is well settled by the Supreme Court that a writ petition should not be entertained in respect of industrial disputes for which a statutory remedy is available under the Industrial Disputes Act unless ‘Exceptional circumstances’ are made out.

Writ jurisdiction is a discretionary jurisdiction and the discretion should not ordinarily be exercised if there is an alternative remedy available to the petitioner.

Sum and Substance:

  • If the writ petition discloses ‘Exceptional circumstances’ and does not involve disputed questions of fact, the writ petition in respect of an industrial dispute may be entertained.
  • If the writ petition discloses ‘Exceptional circumstances’ but the facts are disputed, the writ petition should not be entertained and the petitioner has to invoke the statutory remedies available as per law.
  • If the writ petition does not disclose ‘Exceptional circumstances’, the writ petition should not be entertained irrespective of whether the facts are disputed or not.
  • Writ jurisdiction is a discretionary jurisdiction and the discretion is ordinarily not exercised, if an alternative remedy is available to the petitioner. The powers conferred under Article 226 of the Court are very wide but these are extraordinary remedies subject to self-imposed restrictions.

With regard to ‘exceptional circumstances’ Court referred to the decision of Delhi High Court, Hajara v. Govt. of India, 2017 SCC OnLine Del 7982.

In the present matter, there are no exceptional circumstances for the exercise of the writ jurisdiction under Article 226 of the Constitution.

Bench stated that the present matter is squarely covered by the principles laid down by the Supreme Court in U.P. State Bridge Corporation Ltd. v. U.P. Rajya Setu Nigam Karamchari Sangh,2004 (2) L.L.N. 93 wherein the Court held that,

“We are of the firm opinion that the High Court erred in entertaining the writ petition of the respondent Union at all. The dispute was an industrial dispute both within the meaning of the Industrial Disputes Act, 1947 as well as U.P. IDA, 1947. The rights and obligations sought to be enforced by the respondent Union in the writ petition are those created by the Industrial Disputes Act.”

High Court observed that,

“The principles of uniformity and predictability are very important principles of jurisprudence.”

Most of the retrenchment cases are simpler than the present case but the writ jurisdiction is not exercised as the law is clear and well settled that the rights under the Industrial Disputes Act have to be agitated before the Industrial Tribunal.

In the present matter, Court declines to exercise the writ jurisdiction in view of the statutory remedy available to the retrenched employees under the Industrial Disputes Act.

Court noted there is no averment in that in any of the retrenched employees authorized the petitioners to espouse their cause. There is no averment that shows the authority of the petitioners to file the petitions.

Held

Bench held that the petitions are being dismissed on the ground that the retrenched employees have a statutory remedy under the Industrial Disputes Act and no ‘Exceptional circumstances’ have been made out by the petitioners.

Post Script

In view of the well-settled law by the Supreme Court that the writ petition relating to an industrial dispute can be entertained only if there are ‘Exceptional circumstances’, it is mandatory for the writ petitioner to disclose the ‘Exceptional circumstances’ in the Synopsis as well as in the opening paras of the writ petition.

Hence, if the writ petitioner does not disclose the “Exceptional circumstances” in the writ petition, the Registry shall return the writ petition under objections to enable the writ petitioner to disclose the “Exceptional circumstances” in the Synopsis as well as in the opening paras of the writ petition.[PTI Employees Union v. Press Trust of India Ltd., 2020 SCC OnLine Del 1216, decided on 18-09-2020]

Case BriefsHigh Courts

Delhi High Court: Vibhu Bakhru, J., in the present petition observed that,

“A deadly weapon is one, which is lethal and is likely to cause death when used in the manner in which it is intended. By its very nature, a deadly weapon is one, which is likely to result in a fatality.”

Appellant was convicted of the offences punishable under Sections 393/398 of the Penal Code, 1860 and Sections 25/27 of the Arms Act, 1959.

The present appeal has been filed impugning the judgment for the above-stated conviction and order of sentence.

It has been submitted that the accused was armed with a pistol which he placed on the complainant’s temple and asked him to hand over whatever he had.

While the accused was fleeing from the spot, two patrolling police officials pursued and apprehended him and the police officials snatched the pistol carried by the accused.

Analysis and Decision

Police Officials Testimony

Bench while analysing the facts and submissions in the present case stated that merely because witnesses from the general public that had allegedly assembled at the spot, were not examined does not mean that the testimony of the police officials is required to be discarded.

Supreme Court’s decision in Kalpnath Rai v. State, (1997) 8 SCC 732  was referred in the above context, wherein following was the Court’s proposition:

“There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance.”

Further, there wasno doubt on the fact that a country made pistol (katta) was recovered from the accused also the fact that he was apprehended while he was fleeing from the spot has also been established.

Question to be determined is whether the appellant’s conviction under Sections 25 and 27 of the Arms Act is maintainable?

The country made pistol (katta) recovered from the appellant was designed to discharge a projectile and therefore, even though it may have fallen into disrepair it, nonetheless, falls within the definition of a ‘firearm’ within the meaning under Section 2(e) of the Arms Act.

Further the Court observed that the possession of ammunition is a punishable offence under Section 25 of the Arms Act. The use of such ammunition is punishable under Section 27 of the Arms Act.

Thus, there is little doubt that the appellant is guilty of committing an offence punishable under Sections 25 and 27 of the Arms Act.

Next issue to be examined is whether the country made pistol (katta) can be termed as a “deadly weapon” under Section 398 IPC?

Section 398 IPC states that if an offender is armed with a deadly weapon at the time of robbery or dacoity, the same would constitute an offence under Section 398 IPC.

Key Question:

Whether the country made pistol (katta) can be termed as a “deadly weapon” even if it is in a state of disrepair?

Court stated that in order for any weapon to be termed as deadly, it should one which is capable of or likely to cause death if used in the manner in which it is intended to be used.

There may be a large number of instruments or objects, which can be used in a lethal manner, however, if they are not intended or meant to be used in that manner, they cannot be understood to be weapons for the purposes of Section 398 of the IPC.

Bench also noted that there are a large number of instruments which if used in a particular manner, may result in a fatality. A pen is not a deadly weapon and merely carrying the said writing instrument, at the time of committing robbery or dacoity, would not constitute an offence punishable under Section 398 of the IPC.

Two necessary ingredients of a ‘deadly weapon’:

first, that it should be a weapon and capable of being used as such

second, that it must be inherently lethal and if used in the intended manner is likely to result in death.

Hence in view of the above analysis, it can be construed that even though the country made pistol recovered from the appellant constitutes a firearm, it cannot be considered as a deadly weapon.

In the present matter, at the material time, the pistol could not be used to inflict any fatal injury, if used in the manner in which it was meant to be used — that is, for the purpose of firing a bullet — on account of it being in disrepair.

Thus the impugned judgment convicting the appellant under Section 398 of the IPC was set aside and his sentence was also reduced.[Sonu v. State, 2020 SCC OnLine Del 1213, decided on 15-09-2020]

Case BriefsHigh Courts

Delhi High Court: Yogesh Khanna, J., held that no coercive action shall be taken against the co-founder of ALT News with regard to the FIR alleging him to have harassed a minor girl on twitter.

Journalist

Petitioner who is a journalist and co-founder of news website outlet ALT News and due to the nature of his work is often abused, threatened and demeaned by people.

Two separate FIRs have been registered against the petitioner. In one FIR it has been submitted that the petitioner had shared an old image of his wearing traditional Indian attire and one Jagdish Singh from his twitter handle replied to this image “once a jihadi is always a jihadi”.

In July again the petitioner tweeted a simple tweet, wherein again Jagdish Singh from his twitter handle replied to the petitioner with a vulgarly worded image Tu toh bada mad****** nikla re”.

Again a similar instance occurred to which, this time the petitioner re-tweeted on Jagdish Singh’s tweet displaying a picture which was visible to the public wherein Jagdish Singh was standing with his daughter whose face was pixelated/blurred by the petitioner and he wrote “Hello Jagdish Singh, Does your cute granddaughter know about your part-time job of abusing people on social media? I suggest you change your profile pic”.

Further, the petitioner argued that the tweet would not reveal if it was intending to cause harassment to the minor girl and rather the said tweet was made on respondent 3 personal account.

06-08-2020: Respondent 3 made a complaint to respondent 2 against the petitioner. Only through twitter, the petitioner got to know that respondent 2 has taken cognizance of the complaint filed.

Petitioners’ Grievance

Petitioner submitted that the copy of the FIR was never supplied to him and for this reason, he could not respond to the allegations made against him.

Bench directed respondent 1 and 4 to supply a copy of the present FIR to the petitioner and should also file a status report on or before the next date.

Response from the police and the National Commission for Protection of Child Rights (NCPCR) has also been sought.

Though respondent 2 submitted she was performing her duty as an informant, however, petitioner states that the information annexed at page 40of the paper book comes from the twitter handle of respondent 2 and the said information was made public, probably to harass the petitioner.

Respondent 2 shall also file a reply on or before the next date.

Matter has been listed for 08-12-2020, till then no coercive action to be taken. [Mohammed Zubair v. State of GNCT, 2020 SCC OnLine Del 1189, decided on 09-09-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Manmohan and Sanjeev Narula, JJ., held that the attendance record is a part of service record which is a matter between the employee and employer governed by the service rules and come under the category of “personal information”.

Present appeal is directed against the Single Judge’s Judgment dated 12-05-2020 in WP (C) 8352 of 2018, whereby the appellant’s petition impugning the order passed by respondent 3 declining to furnish the requested information under the Delhi Right to Information Act, 2001 has been rejected.

Appellant had filed the present appeal under the DRTI Act, 2001 before respondent 5 and 6 seeking information pertaining to Geeta Senior Secondary School, Delhi with regard to his attendance record for the period from 2015 to March, 2017 and also of the rest of the staff members serving in the same school.

Further, it has been stated that the copy of the attendance register was provided to him, however, information concerning the other staff members was declined on the ground that information requested was exempted under Section 8(1) of the Right to Information Act, 2005.

Hence aggrieved with the above situation, the appeal was filed under Section 7 of the DRTI Act before the Public Grievance Commission (PGC).

Single Judge of this court had dismissed the appeal noting that the appellant had received his personal information and that there was no infirmity in the order refusing to furnish information pertaining to other staff members of the school. Further, he noted that in view of Section 22 of the RTI Act, Section 8(1) (j) and the principle stated therein would apply to the facts of the present matter.

Decision

 Bench stated that under Section 7 of the DRTI Act any person aggrieved by an order of the competent authority or any person who has not received any order from the competent authority within 30 working days may appeal to the Public Grievances Commission.

Respondent 3 failed to demonstrate that how respondent 3 could not act as the Appellant Authority. Further, Department of Education categorically stated on record that from 2008 onwards, salary to employees of aided schools is disbursed through the ECS, and therefore, it is not necessary to send a copy of the attendance register along with salary bills for such disbursal.

Appellant also sought the attendance record of the other staff members of the School, Court stated that since the said information related to attendance, it would entail revealing medical and personal information of an individual.

Attendance record is part of service record which is a matter between the employee and the employer and ordinarily these aspects are governed by the service rules which fall under the expression “personal information”.

Court observed that in absence of even a remote connection with any larger public interest, disclosure of the information would be exempted as the same would cause unwarranted invasion of the privacy of the individual under section 8(1) (j) of the RTI Act.

Hence, the petition failed to establish that the information sought for is for any public interest, much less ‘larger public interest’.

Therefore Court declined to entertain the present appeal. [Dr R.S. Gupta v. GNCTD, LPA No. 207 of 2020, decided on 31-08-2020]

Case BriefsHigh Courts

Delhi High Court: Navin Chawla, J., restrained from broadcasting a show titled ‘Bindas Bol’ on Sudarshan TV News channel.

Petitioner’s Counsel placed the video clip of the trailer that has been released by respondent 3 and 4 for the programme ‘Bindas Bol’ that was scheduled to be telecasted on respondent 3 TV Channel yesterday i.e. 28-08-2020 at 8.00 P.M.

Further, he submitted that the said trailer itself shows that the programme in question could be in complete violation of the Programme Code.

Reliance of Sections 5, 19 and 20(3) of the Cable Television Network (Regulation) Act, 1995 was placed.

Respondent 1 submitted that on several complaints been received by the Ministry of Information and Broadcasting a notice for clarification was issued to respondent 3, which states as follows:

“This Ministry has received several complaints regarding a programme which is proposed to be broadcast on Sudarshan News TV from 28.08.2020 at 8.00 PM. In the promo of the proposed programme which is viral on Social Media Platforms, Shri Chavhanke for Sudarshan TV News Channel is raising concerns how people of a particular community have suddenly increased in IAS and IPS cadre, etc.

2. You are, therefore, requested to clarify on the above in the context of the Programme Code enshrined under Cable Television Network Rules, 1994 by return mail.”

Hence in view of the above stated, Court restrained respondent 3 and 4 from telecasting the programme titled ‘Bindas Bol’ till the next date of hearing.[Syed Mujtaba Athar v. Union of India, 2020 SCC OnLine Del 1091, decided on 28-08-2020]

COVID 19Hot Off The PressNews

Standard Operating Procedure for the resumption of physical functioning in the Delhi High Court from 01-09-2020

  • Regulations relating to entry in the court blocks for attending physical hearings and VC Court Rooms for VC Hearings
  1. Entry into the court block, for the purposes of attending physical hearings and VC hearings, shall stand restricted.
  2. No entry in the court blocks shall be permitted to:-
  • Juniors, Interns or law students associated with the Advocate concerned
  • Relative of any party-in-person/litigant
  • Non-registered clerks

3. No litigant, who is represented by any Advocate, would be permitted entry unless there is specific direction by the Hon’ble Court.

4. Advocates, Party-in-person and registered clerks above the age of 65 years and those suffering from co-morbidities may refrain from appearing in courts.

5. Persons displaying symptoms of flu, fever, cough, etc. shall not be permitted entry inside the court complex.

6. Mandatory norms are to be followed by all concerned who are permitted to enter the Court building/Court Room.

Further, the SOP has been listed under the following headings:

  • Court Blocks for Physical Hearing
  • Time-slot/Staggered Entry
  • Arrangements inside the Courtroom
  • Other Facilities
  • System of Mentioning
  • Matters to be taken up by the Courts
  • General Regulations

Read the public notice, here: NOTICE


Delhi High Court

[Public Notice dt. 27-08-2020]

Cyril Amarchand MangaldasExperts Corner

On 20-5-2020, in a significant competition law-related development, a Single Judge Bench of the High Court of Delhi (Delhi HC) passed a judgment[1] dismissing a petition filed by Monsanto[2] against the Competition Commission of India’s (CCI) investigation order. In the present matter, Monsanto approached the Delhi HC challenging the jurisdiction of CCI to investigate their licensing policies under Section 4 of the Competition Act, 2002 (Competition Act). It was argued that the issues arising out of their licensing arrangements should be subjected to the Controller of Patents (Controller) under the Patents Act, 1970 (Patents Act), and CCI does not have jurisdiction in this regard. However, the Delhi HC rejected the objections of the petitioners and upheld the jurisdiction of CCI to probe into such abusive conduct, despite the presence of a specific statutory regulator.

The judgment highlights certain overlapping and controversial issues between the Competition Act and the Patents Act, which have now been harmoniously settled by the Delhi HC. While dealing with the objections of the petitioners, the Delhi HC also clarified certain observations made by the Supreme Court of India (Supreme Court) in CCI v. Bharti Airtel Ltd.[3] (Bharti Airtel judgment.) In doing so, it particularly emphasised that the Bharti Airtel judgment is not an authority for extending the proposition that whenever there is a statutory regulator, the complaint must be first brought before the regulator and examination of a complaint by CCI is contingent upon the findings of such regulator.

Brief Facts

The genesis of the dispute is an information filed by certain cotton seed manufacturing companies[4] before CCI. Monsanto was the first company to develop and commercialise Bt cotton technology and registered its second generation of Bt cotton technology under the Patents Act. Monsanto had licensed this technology to its Indian joint venture company — MMBL, which sub-licensed it to various seed manufacturers in India (including the informants) on payment of certain non-refundable and a recurring royalty/fees (trait fee).

The informants inter alia alleged that MMLB and certain Monsanto group companies charged unreasonably high trait fee, imposed unfair terms and conditions through sub-licensing agreements, engaged in refusal to deal, etc., which resulted in denial of market access for the informants. CCI prima facie found merit in the informants’ allegations and accordingly passed an order under Section 26(1) of the Competition Act, thereby directing an investigation into the matter. Consequently,  Monsanto approached the Delhi HC challenging CCIs investigation order.

Key Issues for Determination

The Delhi HC delineated the following issues for consideration: (i) whether there was any irreconcilable conflict between the Competition Act and the Patents Act, and whether both the enactments could be construed harmoniously; (ii) whether Section 3(5) of the Competition Act excludes the applicability of the Competition Act in respect of any agreement, which relates to restraining infringement of any patent rights; and (iii) whether Bharti Airtel judgment[5] confers primacy to statutory regulators over CCI.

Irreconcilable Conflict between the Competition Act and the Patents Act

The Delhi HC relied on the Telefonaktiebolaget L.M. Ericsson v. CCI[6] (Telefonaktiebolaget L.M. Ericsson judgment) and the relevant provisions of both the enactments to observe that there was no irreconcilable conflict between the Competition Act and the Patents Act.

It was noted that the provisions of the Competition Act (i.e. Sections 62, 21 and 21-A) clearly indicate that the intention of the Central Legislature was not to repeal any other statute by enacting the Competition Act, rather it was to ensure that the provisions of the Competition Act are implemented in addition to the provisions of other statutes. Further, the remedies available under the Patents Act and the Competition Act are materially different from each other. It was also observed that in certain cases, it may be open for a prospective licensee to approach the Controller for grant of a compulsory licence, however, the same would not be inconsistent with CCI passing an appropriate order under Section 27 of the Competition Act.

Accordingly, it was held that the jurisdiction of CCI to entertain complaints regarding abuse of patent rights could not be excluded.

Whether Section 3(5) of the Competition Act is a Blanket Exemption

With respect to the allegation reimposition of unreasonable conditions on the informants (through sub-licensing agreements), the petitioners contended that they were well within their rights to impose such conditions by virtue of Section 3(5)(i) of the Competition Act.

Section 3(5)(i) of the Competition Act provides that Section 3 (which deals with anti-competitive agreements) would not restrict the rights of any person to restraint any infringement of, or to impose reasonable conditions, as necessary for protecting any of his rights which have been or may be conferred upon him under, inter alia, the Patents Act.

The petitioners submitted that Section 3(5)(i) of the Competition Act has two limbs. The first, which provides a blanket exclusion in respect of rights to restraint infringement of intellectual property rights (IPR); and the second, which relates to imposition of reasonable conditions, that may be necessary for protecting the IPR. It was emphasised that the term “reasonable” under Section 3(5)(i) is a qualifier only for conditions relating to patent protection and not patent infringement. Accordingly, the petitioners submitted that CCI lacks jurisdiction to examine the alleged anti-competitive clauses of the sub-licensing agreement, as these were designed to restrain the cotton seed manufacturers (including the informants) from infringing their patents [re] Bt cotton technology.

The Delhi HC found the petitioners’ contentions bereft of any merit. It observed that while a patent holder is well within its rights to enter into an agreement restraining infringement of its patent rights, however, these rights are not unqualified. The words “or to impose reasonable conditions” under Section 3(5)(i) are placed between two commas and thus, must be interpreted as being placed in parenthesis that explains and qualifies the safe harbor of Section 3(5) of the Competition Act. The exclusionary provision to restrain infringement cannot be read to mean a right to include unreasonable conditions that far exceed those that are necessary, for the aforesaid purpose.

Therefore, the question whether an agreement is limited to restraining infringement of patents (and includes reasonable conditions), is required to be determined by CCI. Section 3(5) of the Competition Act does not mean that a patentee would be free to include onerous conditions under the guise of protecting its rights.

Whether Bharti Airtel Judgment Confers Primacy to Sectoral Regulators over CCI

Lastly, relying on the Bharti Airtel judgment[7], the petitioners contended that since issues in the present matter relate to patents, it would be essential for the specialised regulator in this case, the Controller to first determine whether the agreements (sub-licences) entered into by MMBL are an abuse of its rights under the Patents Act before CCI could investigate it.

In this regard, the Delhi HC clarified that the position taken by the Supreme Court in Bharti Airtel judgment[8], in favour of Telecom Regulatory Authority of India (TRAI), would not be applicable in the present case for the following reasons:

First, the Bharti Airtel judgment[9] did not confer primacy to sectoral regulators over matters that fell within the expertise and domain of CCI. Unlike the present matter, where the complaint filed before CCI pertains to anti-competitive conduct by the petitioners, the dispute in Bharti Airtel (which was sought to be placed before CCI) related to non-provision of points of interconnections (PoI) i.e. a technical telecom issue. The PoI issue clearly required a technical evaluation and therefore, the examination by CCI was deferred till the technical aspects (basis which the complaints were filed before CCI) were determined by TRAI.

Second, the Bharti Airtel judgment[10] pertained to the role and functions of TRAI which is materially different from that of the Controller. The TRAIs scope of regulation is pervasive in nature as it is entrusted with the formation and implementation of regulations. Therefore, the issue of non-provision of PoIs fell squarely within the scope of TRAIs regulatory powers. On the contrary, a Controller does not regulate the exercise of patent rights in such a pervasive manner. The principal function of the Controller is to examine the application of grant of patents and whether an applicant is entitled to such grant of patent rights. Although, the Controller also exercises other powers and performs other functions (including issuance of compulsory licences), the nature of role performed by the Controller cannot be equated to that of TRAI.

Therefore, the Delhi HC held that CCI has jurisdiction to investigate the abusive conduct of Monsanto.

Key Takeaways

Given the conundrum around the applicability of Bharti Airtel judgment[11] (as discussed above), the Delhi HC provided the much-needed clarity in relation to the jurisdiction of CCI in cases involving statutory regulators. The judgment reaffirms that CCI is entrusted with the function to deal with anti-competitive conduct (as set out under the Competition Act) and to that extent, CCI can assume jurisdiction even in matters involving a specialised statutory body. This observation of the Delhi HC will go a long way in restricting the abuse of legal process, where the parties attempt to escape CCIs investigation by raising frivolous jurisdictional issues.

In this judgment, the Delhi HC has taken the opportunity to re-emphasise that there is no irreconcilable repugnancy between the Patents Act and the Competition Act. Interestingly, it also construed Section 3(5) of the Competition Act in true spirit by clarifying that Section 3(5) of the Competition Act is not a blanket restriction, and therefore unreasonable conditions could not be imposed by an IPR holder under the garb of protecting its rights.

While the Delhi HC has established a progressive precedent through this judgment, it will be interesting to see how it plays out for CCI and other statutory regulators.


* Anshuman Sakle is a Partner with the Competition Law Practice at Cyril Amarchand Mangaldas and can be contacted at anshuman.sakle@cyrilshroff.com.  Ruchi Verma, Associate, can be contacted at ruchi.verma@cyrilshroff.com and Nandini Pahari, Associate with the Competition Law Practice at Cyril Amarchand Mangaldas.

[1] Monsanto Holdings (P) Ltd. v. CCI, 2020 SCC OnLine Del 598.

[2] Monsanto Holdings Pvt. Ltd. (MHPL), Monsanto Company, and Mahyco Monsanto Biotech (India) Ltd. (MMBL); collectively referred to as “Monsanto”.

[3] (2019) 2 SCC 521.

[4] Nuziveedu Seeds Ltd. (NSL), Prabhat Agri Biotech Ltd. (PABL), Pravardhan Seeds Private Ltd. (PSPL) (collectively referred to as the “informants”).

[5] (2019) 2 SCC 521.

[6] 2016 SCC OnLine Del 1951.

[7] Supra (Note-5).

[8] Supra (Note-5).

[9] Supra (Note-5).

[10] Supra (Note-5).

[11] Supra (Note-5).

Appointments & TransfersNews

Supreme Court Collegium approves the proposal for elevation of the following Advocates, as Judges of the Delhi High Court:

1. Jasmeet Singh,

2. Amit Bansal,

3. Tara Vitasta Ganju,

4. Anish Dayal,

5. Amit Sharma, and

6. Mini Pushkarna.


Supreme Court of India

[Collegium Statement dt. 17-08-2020]

COVID 19Hot Off The PressNews

In view of the prevailing situation of the spread of coronavirus (2019-nCOV) pandemic in the NCT of Delhi, the Administrative and General Supervision Committee of the Delhi High Court extends the suspension of the functioning of the Court (except for the Court of Registrars/Joint Registrars) till 31-08-2020.

All the Benches of the Delhi High Court would continue to take up and hear all the urgent matters through videoconferencing.

The Courts of Registrars and Joint Registrars of this Court shall take up the matters through videoconferencing, where the files are already scanned. The evidence be recorded in ex-parte and uncontested matters where the same is required to be tendered by way of affidavit.

It has also been ordered that the Courts of Registrars and Joint Registrars of this Court shall not pass any adverse order in non-urgent/routine matters where the concerned advocate/litigant is unable to join the proceedings through video conferencing, till the time the physical functioning of the courts is resumed.

It has further been directed that subject to complete availability of public transport and subject to the situation in Delhi remaining stable, a plan be evolved for the gradual opening of physical courts from 1st September, 2020 onwards.

Read the detailed order here: High Court Lockdown upto 31.8.2020

PublicNotice_HU6IY8U125P


Delhi High Court

[Office Order dt. 15-08-2020]

Hot Off The PressNews

Delhi High Court: Prathiba M. Singh, J. has upheld the Delhi University’s (DU) decision to conduct open-book examinations (OBE) for final year undergraduate students, set to start from the 10th of August, 2020.

The Court was hearing a plea filed by multiple students of the University, which sought to challenge the university’s decision to conduct OBEs, contending that it would be discriminatory for students who did not have internet, books and/or other resources for preparing for the exam or were stuck in Covid-19 containment zones. Moreover, the ability and preparedness of the University to conduct the exams, especially in light of the possibility of various technical problems, had been questioned. The University argued that conducting OBEs was in accordance with the UGC’s guidelines to conduct exams in a time-bound manner, and students would only require basic technology to appear for the examination. It contended that holding OBEs was to prevent students from assembling in one hall, intended at preventing the spread of Covid-19.

The High Court ruled in favour of DU, allowing it to conduct the OBEs from the 10th of August, 2020. However, the Court also issued several guidelines which the University would have to follow in conducting the examinations, such as uploading question papers on a portal and emailing them to students individually, giving students an extra hour to upload their answer sheet, sending auto-generated email to each student to confirm the receipt of the answer sheet by the University, etc. The Court observed that a Grievance Redressal Committee would have to be formed by the DU to resolve issues being faced by students, Common Service Centres would be made available for students with no cyber infrastructure, and students who fail to appear in the OBEs would have the option to appear in physical examinations in September; all of these would serve as safeguards for the students.


Source: Hindustan Times

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., constituted a committee to finalize the process in regard to the issuance of digital degree certificates for the students of Delhi University while directing the same Bench also observed that,

Obtaining a degree, which should have been a cause of celebration, has been turned into a complete nightmare for all these doctors who ought to have been busy rendering medical services during the pandemic.

Petitions filed were with the intent to reflect upon the sorry state of affairs at the Delhi University. Petitioners are all doctors and graduated their MBBS course in the year 2018 and 2019 and yet have been struggling to get their original degree certificates.

After failed approaches to the University, petitioners have reached out to the Court.

In an earlier petition, Court had observed that DU ought to make alternative arrangements during the COVID-19 pandemic for issuance of digital certificates, digital mark sheets and digital transcripts online along with digital signatures and security features.

Reason cited by DU for delay in issuance of the degree certificate was non-availability of paper and the fact that DU’s contract with the printer had expired.

Further, it was observed that Court was informed that steps were being taken for printing the degree certificates in an expedited manner. Despite this being the position, the tender for printing degree certificates was not finalized and it was only yesterday i.e., 3rd August, 2020 that the tender was opened. 

In an affidavit it has been informed to the Court that a Committee has been formed for looking after the security of sensitive data of academic awards, manpower requirement, University revenue, etc. 

“…looking at the urgency for the degree of the petitioners specially the medical doctors/professionals who have already completed their degree from University of Delhi and also other urgent specific cases, the University will initiate measures so that their degree can be delivered to them on priority basis and for that purpose the related data shall be given to the Digilocker to generate their digital degree.

Further, the University will develop a system to address such type of cases in a time bound manner so that degree certificate can be provided digitally.”

Insofar as Digilocker is concerned, the Court is informed that DU has registered on Digilocker only yesterday i.e., 3-08-2020.

Bench observed that despite the sufficient time being made available to the Delhi University, it is clear that adequate steps have not yet been taken to set up the process for issuance of digital degree certificates.

There is a completely callous attitude being reflected towards the plight of students.

Further, an affidavit filed by DU is lacking in several respects – in the name of the portal, the link to the portal, the form to be filled for obtaining the digital degree-certificate and is not providing a sample of the degree certificate to be issued.

Obtaining a degree, which should have been a cause of celebration, has been turned into a complete nightmare for all these doctors who ought to have been busy rendering medical services during the pandemic.

Hence in view of the above, Court constituted a Committee, which shall finalise the following:

a) The online link on the DU portal where the students can put in applications for issuance of their digital degree certificates. Alternatively, an e-mail address shall be provided where the Petitioners and similarly placed candidates can write an e-mail to obtain their degree certificates;

b) The timeline after receipt of the said email for verification and issuance of the degree certificate with the digital signature;

c) Template for the degree certificate to be issued by email;

d) Official to be responsible for affixing the digital signature and issuance of the same;

e) A sample degree certificate in favour of one of the Petitioners, duly signed with the digital signature, shall also be generated;

f) Timelines for transmission of past data to Digilocker from DU;

g) Timelines for transmission of data periodically to Digilocker so that students can easily access their certificates, transcripts, mark sheets, awards, etc.

Status report to be submitted on 07-08-2020 and matter for hearing is to be listed on the same date. [Dr Akshita Khosla v. University of Delhi, 2020 SCC OnLine Del 926, decided on 04-08-2020]


Also Read:

Del HC | “No reason why DU should not adopt technically advanced methods”; Court suggests DU to issue degree certificates online through email

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., dismissed the petition filed by a Lieutenant Colonel, Indian Army challenging the Social Media Ban Policy of Indian Army.

Lieutenant Colonel with the Indian Army filed a petition seeking a writ of mandamus directing respondents to withdraw their policy banning petitioners and other members of the Indian Army from using social networking platforms.

The said policy requires the petitioner and other members of the Indian Army to delete their accounts from social networking platforms like Facebook and Instagram.

Petitioner also sought a declaration that respondent 2 Director General of Military Intelligence is not empowered under the Constitution of India or under any other law, to modify, amend or abrogate the fundamental rights of the petitioner and other members of the Armed Forces.

Bench on perusal of the policy as well as other voluminous documents, stated that the policy is:

  • an outcome of constantly evolving intelligence of security threats and assessment of security safeguards needed
  • to plug the gaps and meet the ever-threatening electronic and cyberinfrastructure
  • an outcome of the paradigm shift in the intelligence activities of hostile nations; increased popularity of various social media platforms; the vulnerability of unsuspecting military personnel
  • necessitated by the directives, instructions and policies issued from time to time, advising the military personnel to regulate the use of social media websites, failing to meet the threat
  • virtual impossibility to keep track of lacs of online profiles or to identify the fictitious enemy profiles
  • on assessment of the different modes adopted to honey trap, not necessarily in the conventional sense ;
  • an outcome of the assessment of the vulnerability of different social media platforms.

Further, Bench relied on the Supreme Court decision in Ex-Armymen’s Protection Services (P) Ltd. v.  Union of India (2014) 5 SCC 409, wherein it was held that (i) the decision on whether the requirements of national security outweigh the duty of fairness on a particular case is for the government and not for the Courts; the government alone have access to the necessary information and in any event, the judicial process is unsuitable for reaching decisions on national security; (ii) those who are responsible for the national security must be the sole judges of what the national security requires and it is undesirable that such matter should be made the subject matter of evidence in a Court of law or otherwise discussed in public; (iii) what is in the interest of national security is not a question of law – it is a matter of policy and it is not for the Court to decide whether something is in interest of State or not; and, (iv) once the State is of the stand that the issue involves national security, the Court shall not disclose the reasons to the affected party.

High Court on perusal of the impugned policy found the same be suffering from the vice of non-application of mind or being not based on any material on record or being without proper deliberations.

Court stated that it does not appreciates the pleading of the petitioner as a senior officer in the Army, of army personnel being treated as slaves and the government not trusting its army.

Court noted that warfare and inter-country rivalries and animosities today are not confined to accession of territory and destruction of installations and infrastructure of enemy countries but also extend to influencing and affecting the economies and political stability of enemy country including by inciting civil unrest and disturbance and influencing the political will of the citizens of the enemy country.

Hence, if the government on complete assessment has concluded that permitting the use of certain social networking websites by defence personnel enables the enemy countries to gain an edge, Court would be loath to interfere.

In view of the above, the petition was dismissed. [Lt. Col. P.K. Choudhary v. UOI, 2020 SCC OnLine Del 915, decided on 05-08-2020]


Brief News 

Delhi High Court dismisses the challenge to the Court’s Order wherein an Indian Army Personnel was directed to delete his social media accounts from “Facebook” and Instagram in consonance of the Social Media Ban Policy for Indian Army.

Earlier, a petition was filed impugning the policy of respondent 2 Director General of Military Intelligence, to the extent it bans the petitioner and other members of Indian Army from using social networking platforms like Facebook and Instagram.

To the said petition, Bench had stated that only after perusing the policy counsels be heard.

“we are of the view that the counsels be heard after we have had an occasion to peruse the policy and if the document prescribing the policy does not record the reasons therefor, the document containing the reasons for the policy.”


Read More:

Del HC | Indian Army’s policy of social media ban for its members to be submitted in a sealed cover for perusal of Court

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., granted bail to an accused involved in the Delhi-Riots in view of the principles of bail.

Applicant accused for offences under Sections 147, 148, 149, 427 and 436 of the Penal Code, 1860. Applicant has been in judicial custody since 03-04-2020 till date.

By the present application, bail has been sought.

An FIR was registered in February, wherein according to the police, a mob engaged in rioting and destruction of property in certain areas of North-East Delhi during which the property of Mohd. Shanawaz  was burnt down, whereupon he file a complaint around 10 days after the incident.

State alleged that the applicant was one of the persons involved in arson and rioting as stated above and the same is the reason for him being in judicial custody.

4 more cases have been listed wherein the applicant was implicated and all the cases arose from the episodes of rioting that happened in North-East Delhi in February 2020.

While opposing the bail, Amit Prasad, SPP and Tarang Srivastava, APP submitted that the applicant’s identity and presence stands confirmed by the snapshot/video-graphs of the CCTV footage from Rajdhani Public School as well as from the applicant’s own cellphone.

Applicant’s CDRs also confirmed his location at the scene of the crime at the relevant time; that the complainant’s statements also point to the involvement of the applicant; and that in his statement Ct. Vikas has in fact identified the applicant.

“Court considered the effect of Pre-trial detention has on an accused, especially on his right to brief and consult his lawyers and to prepare his defence, in order to afford to the accused a real and not merely chimerical right to fair trial, as guaranteed under Article 21 of the Constitution.”

Hence, in view of the above and applying the law and principles of bail granted regular bail subject to the following conditions:

  • Personal Bond shall be furnished of Rs 50,000 with two sureties.
  • Applicant shall not leave the National Capital Region without Court’s permission.
  • Applicant shall present himself on every alternate Saturday between 11 am and 11:30 am before the Investigating Officer.
  • Applicant shall furnish to the Investigating Officer/SHO a cellphone number on which the applicant may be contacted at any time.
  • If the applicant has a passport, he shall surrender the same to the Trial Court.
  • Applicant shall not contact, nor visit, nor offer any inducement, threat or promise to the first informant/complainant or to any of the prosecution witnesses.

In view of the above, application was disposed of. [Mohd. Anwar v. State of (NCT) Delhi, 2020 SCC OnLine Del 900, decided on 04-08-2020]

Cyril Amarchand MangaldasExperts Corner

Introduction

In a largely capitalistic economy, advertisements are one of the most important sources of creating awareness about various products. We may have shifted our reliance from advertisements in print media and televisions to advertisements on social media, however, advertisements continue to remain the largest creator of demand among consumers. Companies continue to employ the most innovative techniques to woo their customers and boost sales. While attempting to do so, corporates often tend to promote their brand as being superior to their competitor’s.

Over the course of this article, we examine the recent decision of the Delhi High Court (“the High Court”) in Horlicks Limited  v. Zydus Wellness Products Limited[1]  (“Horlicks case”), where the High Court has dealt with the law relating to misleading advertisements and disparagement.

Article 19 and Commercial Speech

Article 19(1)(a) of the Constitution guarantees the right to freedom of speech and expression to all citizens of India, and the essential corollary to the same is the right to be informed and access to information. In  Romesh Thappar v. State of Madras[2], the Supreme Court held that Article 19(1)(a) includes the freedom of press, however, it was in Indian Express Newspaper v. Union of India[3] that the  Supreme Court  held that commercial speech is protected under the ambit of free speech and expression under Article 19 and  the Supreme Court  observed that “We are of the view that all commercial advertisements cannot be denied the protection of Article 19(1)(a) of the Constitution merely because they are issued by businessmen and its true character is detected by the object for the promotion of which it is employed.”

The above position was elaborated upon in Tata Press Ltd v. Mahanagar Telephone Nigam Ltd.[4]  (“Tata Press”), wherein the Supreme Court observed the right of the consumer as a recipient of commercial speech by stating, “An advertisement giving information regarding a life-saving drug may be of much more importance to the general public than to the advertiser who may be having purely a trade consideration. Article 19(1)(a) not only guarantees freedom of speech and expression, it also protects the rights of individuals to listen, read and receive the said speech.” Further, the  Supreme Court  also held that misleading and deceptive advertising would not fall within the protection of Article 19.

The law relating to misleading advertisement

 As evident from the name, a misleading advertisement is one that deceives, manipulates or is likely to deceive or manipulate the consumer. These advertisements have the ability to cause serious damage to the consumers, as well as competitors and hence are required to be restrained. The courts, while deciding various cases, have tried to strike a balance between protecting the right to commercial speech and the interest of consumers and competitors.

In the recent Horlicks case[5], the High Court passed an interim order restraining Zydus from telecasting its advertisement comparing Complan to Horlicks on the grounds that the same was misleading and disparaging.

 Horlicks Limited  v. Zydus Wellness Products Limited

Horlicks Limited (“Horlicks”) approached the Delhi High Court, seeking a permanent injunction restraining Zydus Wellness Products (“Zydus”) from telecasting its advertisement, which showed that one glass of Complan (a Zydus Product) is equivalent to two glasses of Horlicks. The advertisement in contention was being telecast on multiple channels in English, Bengali and Tamil. Aggrieved by the advertisement, Horlicks approached the High Court on the ground that the advertisement was misleading and amounted to disparagement.

Zydus, on the other hand contended that the advertisement was not misleading as the information provided was accurate and was subject to the recommended serving size of both the drinks. A suit on similar grounds was filed by Horlicks for an advertisement published by Zydus in print media. The High Court had granted an interim injunction, restraining Zydus from publishing the advertisement, however, the injunction was vacated, when Zydus, voluntarily modified the advertisement, by including the disclaimer about the serving size and undertook to only publish the modified advertisement.

While arriving at a decision on the interim relief, the High Court analysed and relied upon the plethora of judgments on misleading advertisements, disparagement and law governing publication of advertisements on television, including:

(i) Reckitt & Colman of India Ltd. v. M.P. Ramchandran[6], wherein the Calcutta High Court held that a seller is allowed to declare that his goods are the best or better than that of his competitor’s, despite the said declaration being false. While making such declaration, he may also compare the advantages and disadvantages of his products and that of the competitors; however, the seller is not permitted to defame the goods of his competitors and if there is no defamation, the competitor will have no cause of action to file a case of misleading advertisement and disparagement.

(ii) Dabur India v. Colortek Meghalaya Pvt. Ltd. [7] (“Dabur India”), wherein the Delhi High Court laid down the following guiding principles while dealing with the issue of misleading advertisements:

  • Advertisements are protected under Article 19(1)(a) as commercial speech;
  • An advertisement must not be false, misleading or deceptive;
  • However, there are certain cases where the advertisement must not be taken as false, but as a glorious representation of one’s own product; and
  • Only when the impugned advertisement goes beyond glorifying its product, and is deceptive and misleading, the protection under Article 19(1)(a) would not be available.

The High Court while dealing with the principles on law of disparagement laid down in Pepsi Co. Inc. v. Hindustan Coca Cola Ltd. [8], held that:

(1) The intent of the advertisement – this can be understood from its story line and the message sought to be conveyed. (2) The overall effect of the advertisement – does it promote the advertiser’s product or does it disparage or denigrate a rival product? In this context, it must be kept in mind that while promoting its product, the advertiser may, while comparing it with a rival or a competing product, make an unfavourable comparison, but that might not necessarily affect the story line and message of the advertised product or have that as its overall effect. (3) The manner of advertising – is the comparison by and large truthful or does it falsely denigrate or disparage a rival product? While truthful disparagement is permissible, untruthful disparagement is not permissible.”

(iii) In Havells India Ltd. v. Amritanshu Khaitan[9] the Delhi High Court clarified the difference between comparative advertising and misleading advertising and disparagement. It observed that comparative advertising is healthy and encouraged in the spirit of competition, however, disparagement is not; and a cause of action shall arise in case of a misleading advertisement.

(iv) In Gillette India Limited v. Reckitt Benckiser (India) Private Limited[10], the Madras High Court noted the difference between electronic media and print media, while deciding cases of disparagement. In doing so, it observed that electronic media has greater power to leave a lasting impression in the minds of the viewers as compared to print media and held that, “catchy phrase, a well enacted skit or story line, or even distinctive sounds or distinctive collocation of colours make a lasting impact and more so, when viewed repeatedly.

The High Court while relying on the abovementioned cases held that the impugned advertisement was misleading and disparaging, even though the disclaimer was provided in the advertisement, the same was not clear and the advertisement created an impression that one cup of Complan was equal to two cups of Horlicks, without considering the serve size. The High Court, based on the above observation, held that the balance of convenience was in favour of Horlicks, who would suffer an irreparable injury if telecast of the impugned advertisement was not restrained and hence, granted the relief of interim injunction.

Conclusion

The law on misleading advertisement is ever evolving and the HC judgement in  Horlicks case[11] is an addition to the long list of judgements on misleading advertisement. It is interesting to note that the High Court allowed the circulation of the same advertisement in print media, however, restrained the telecast of the same. We understand that the differentiation between print media and electronic media lies in their impact on the audience. Since electronic media uses a combination of audio-visual techniques, it is more likely to influence its audiences and hence requires stricter regulations. Hence, the same advertisement was allowed to be published in print media, however, restrained from being telecast on television.

Additionally, an analysis of the case laws referred above shows that the law relating to misleading advertisements is extremely subjective and a small alteration in the fact may affect the outcome. It appears that while it is not disparaging and misleading for a seller to compare his products with his competitor’s and even claim that his product is better than those of his competitor’s, it may be disparaging and misleading if the competitor’s goods are shown to be inferior to the seller’s.


*Partner, Cyril Amarchand Mangaldas, Advocates & Solicitors

**Associate, Cyril Amarchand Mangaldas, Advocates & Solicitors

***Associate, Cyril Amarchand Mangaldas, Advocates & Solicitors

[1] Horlicks Limited  v. Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided on 20-5-2020.

[2] Romesh Thappar v.  State of Madras, 1950 SCR 594

[3] Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India,  (1985) 1 SCC 641

[4] Tata Press Ltd v. Mahanagar Telephone Nigam Ltd, (1995) 5 SCC 139.

[5] Horlicks Limited v Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided on 20-5-2020

[6] Reckitt & Colman of India Ltd. v. M.P. Ramchandran , 1998 SCC OnLine Cal 422

[7] Dabur India v. Colortek Meghalaya Pvt. Ltd. , 2010 SCC OnLine Del 391

[8] Pepsi Co. Inc.  v. Hindustan Coca Cola Ltd. , 2003 SCC OnLine Del 802 the Court laid the following principles:

  • Intent of the advertisement;
  • Manner; and
  • Story line and the message sought to be conveyed.

[9] Havells India Ltd. v. Amritanshu Khaitan , 2015 SCC OnLine Del 8115

[10] Gillette India Limited v. Reckitt Benckiser (India) Private Limited, 2017 SCC Online Bom 207

[11] Horlicks Limited  v. Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided on 20-5-2020

Case BriefsHigh Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and Prateek Jalan, J., directed that the statements under Section 164 of the Code of criminal Procedure, 1973 of children in need of care and protection should be recorded by the Metropolitan Magistrate over video conferencing or by visiting the observation homes.

Petitioner has established a Child Care Institution under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Reason for filing the present petition was that, out of a rescue operation in July, 2020 ten minors who were working as child labour were rescued and brought to the Mukti Ashram.

Contention of the petitioner is that the children were compelled to leave Mukti Ashram and physically attend the Court of the Metropolitan Magistrate for recording of their statements under Section 164 of the Code of Criminal Procedure, 1973 and for giving samples for COVID-19 testing.

Respondents should lay down procedures for recording of the childrens’ statements and their medical testing, which does not require them to leave the institution or at atleast to attend at crowded public places.

Bench stated that in the interest of the children who require care and protection it should be necessitated that their exposure t crowded environments be avoided in the prevailing circumstances of the COVID-19 pandemic. As far as possible, they shouldn’t be required to leave the premises of the Child Care Institution in which they are housed.

Court directed as follows:

  • Statements under Section 164 of the Code of Criminal Procedure, 1973 of children in need of care and protection can be recorded by the Metropolitan Magistrate over video conferencing or if the Metropolitan Magistrate deems it necessary, he/ she can visit the concerned observation homes/Child Care Institutions where such children are housed, for recording the statement in person.
  • Proceedings before the Child Welfare Committees and other bodies where the children are required to participate, are already being conducted by video-conference. We direct that this process should be continued, and the requirement of taking the child out of the home/ Child Care Institution should be avoided as far as possible.
  • Covid-19 tests will also be carried out by the State authorities for the children in need of care and protection who are staying at different homes/Child Care Institutions under the Juvenile Justice (Care and Protection of Children) Act, 2015. The sample shall be collected for this purpose either at the home/Child Care Institution or at the office of the Sub-Divisional Magistrate of the area. The authorities will ensure that all precautions for the welfare of the child are taken, and that the sample is expeditiously collected, so that the child can return to the home/ institution.

In view of the above observations, petition was dismissed. [Bachpan Bachao Andolan v. GNCTD, WP(C) No. 4361 of 2020, decided on 28-07-2020]

COVID 19Hot Off The PressNews

Suspension of functioning of Delhi High Court and its Subordinate Courts has been extended till 31-07-2020.

Here’s the Court Order:

The Hon’ble Administrative and General Supervision Committee of this Court while considering further extension of suspended functioning of this Court and in view of the prevailing situation of spread of coronavirus (2019-nCOV) pandemic in the NCT of Delhi, in continuation of this Court’s Office orders No.373/Estt./E1/DHC dated 23.03.2020, No.194/RG/DHC/2020 dated 25.03.2020, No.R-43/RG/DHC/2020 dated 15.04.2020, No.R125/RG/DHC/2020 dated 02.05.2020, No.R-201/RG/DHC/2020 dated 16.05.2020, No. R271/RG/DHC/2020 dated 21.05.2020, No.1381/DHC/2020 dated 29.05.2020, No.15/DHC/2020 dated 13.06.2020 and No.21/DHC/2020 dated 29.06.2020 has been pleased to order that the suspended functioning of the High Court of Delhi shall stand extended till 31.07.2020 on the same terms as contained in the Order dated 13.06.2020 of this Court.

NOTICE

NOTICE


Delhi High Court

Notice dt. 14-07-2020

COVID 19Hot Off The PressNews

Rapid Antigen Diagnostic Test for Covid-19 to be conducted in High Court of Delhi

A medical team deputed by the Health Department of the Govt of N.C.T. of Delhi shall conduct Rapid Antigen Diagnostic Test for Covid 2019 in High Court of Delhi. A camp is accordingly being organized for three days i.e. 10th, 13th and 14th July, 2020 from 10.00 am to 02.00 pm. ‘.

All the officers and officials of this Court, who are desirous to undergo the said test, are  requested to send information in advance on Whatsapp to the Mr.Pawan Kumar Kalra, Joint Registrar, General Administration-II (Mob No. 9910390927) for making appropriate arrangements to regulate the rush.

All such willing officers/officials are requested to report, as per the given time-slot and date, in the main public entry area of the Extension Block of this Court. They shall also bring their respective Identity Cards.

CIRCULAR


Delhi High Court

[Circular dt. 09-07-2020]