Legal RoundUpSupreme Court Roundups

“No doubt, that a Judicial Officer while discharging his/her duties, is expected to be independent, fearless, impassionate and non-impulsive. But a Judicial Officer is also a human being. A Judicial Officer is also a parent. He/she could be a father or a mother. “

X v. High Court of MP

2022 SCC OnLine SC 171


STORY OF THE MONTH


Harassed, transferred, left with no choice but to resign: Read how this MP District Judge won half the battle in alleged sexual harassment case as SC orders her reinstatement

The resignation by the petitioner was on account of exasperation and frustration actuated by a thought, that injustice was being meted out to her by the very Institution of Judiciary.

The Court observed that,

“… in a gruesome battle between a mother and a Judicial Officer, the Judicial Officer lost the battle to the mother.”

Read more…


UNMISSABLE STORIES


Fraudulent Trading| SEBI must disclose all relevant material, including Investigation Report, to noticee except certain sensitive information

“If the report of the investigation authority under Regulation 9 has to be considered by the Board before satisfaction is arrived at on a possible violation of the regulations, the principles of natural justice require due disclosure of the report.”

Read more…

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Supreme Court rejects default bail plea of Rahul Modi, MD of Adarsh Group

“Filing of the charge-sheet within stipulated period is sufficient compliance u/s 167 of CrPC.”

Read more…

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Amazon-Future-Reliance Dispute| SC allows Future Group to approach Delhi HC for continuation of merger deal with Reliance Group

The 3-judge bench of NV Ramana, CJ and AS Bopanna and Hima Kohli, JJ has granted liberty to Future Retail Limited (FRL) to approach the Delhi High Court by filing an application seeking continuation of the NCLT proceedings beyond the 8th Stage i.e. Meeting of Shareholders and creditors.

Read more…

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Section 498A IPC| Husband’s relatives cannot be forced to undergo trial in absence of specific allegations of dowry demand

“A criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused.”

Read more…

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Supreme Court furthers SOP for evidence recording via video-conferencing in cases related to child victims/witnesses of human trafficking

“It is well known that our country is a technological powerhouse and if we are unable to take advantage of the resources available with us and fully utilise the benefits of technology through computers and the internet for the benefit of children, our status as a technological powerhouse would be in jeopardy and would remain only on paper.”

Read more…

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POCSO Offenders Deserve No Leniency; “A Message Must Be Conveyed To The Society At Large”

“Cases of sexual assault or sexual harassment on the children are instances of perverse lust for sex where even innocent children are not spared in pursuit of such debased sexual pleasure.”

Read more…

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Bullet Train Project: Even Republic of India can’t deviate from terms and conditions of a fully foreign funded contract; SC sets aside Delhi High Court verdict

Japan International Cooperation Agency (JICA) has invested Rs.1 lakh crores in the Bullet Train Project.

Read more…


EXPLAINERS



MORE STORIES


Not mandatory to register partition document only detailing how the properties are to be dealt with in future

The Court was deciding a case where the panchayatdars had passed an award in the form of a resolution in relation to a family property.

Read more…

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Lok Adalat Award cannot be a basis for redetermination of the compensation under Section 28A of the LA Act

An Award passed under Section 19 of the 1987 Act is a product of compromise. Sans compromise, the Lok Adalat loses jurisdiction.

Read more…

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Applications under Section 156 (3) Cr.P.C. being filed only to harass other; Filing of affidavit a must

In a case where the Magistrate had passed an order under Section 156(3) CrPC even in absence of an affidavit duly sworn by the complainant, the bench of BR Gavai* and Krishna Murari, JJ that many a times the applications under Section 156 (3) of the Cr.P.C. are filed in a routine manner without taking any responsibility only to harass certain persons and hence, such applications are to be supported by affidavits.

Read more…

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Minor penalties, without cumulative effect, are still a proof of tainted service record; Benefit of Selection Grade can’t be claimed as a right

In a case where a former employee of Rajasthan State Road Transport Corporation sought benefit of Selection Grade, 7 years after his compulsory retirement, the bench of Dr. DY Chandrachud and Surya Kant, JJ has held that the grant of the Selection Grade is not a matter of right and is subject to the stipulated terms and conditions which, in the present case, included a clean and untainted service record.

Read more…

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Merely writing “cancelled” on registered power of attorney wouldn’t make it null and void

The Division Bench of K.M. Joseph* and Pamidighantam Sri Narasimha, JJ., held that mere writing the word “cancelled” or drawing a line would not render Power of Attorney null and void as there must be cancellation and it must further be brought to the notice of the third party at any rate.

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Law passed by legislature is good law till it is declared unconstitutional by a Court

The Supreme Court held that, the Manipur Legislature was not competent to introduce a saving clause in the Repealing Act 2018.

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Consent decree cannot be modified/ altered unless the mistake is a patent or obvious one

“Even assuming there is a mistake, a consent decree cannot be modified/ altered unless the mistake is a patent or obvious mistake. Or else, there is a danger of every consent decree being sought to be altered on the ground of mistake/ misunderstanding by a party to the consent decree.”

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IBC Amendment, 2018; Supreme Court elaborates conditions for disqualification of Resolution Professional under S. 29A(h) of IBC

“…what is required to earn a disqualification under the said provision is a mere existence of a personal guarantee that stands invoked by a single creditor, notwithstanding the application being filed by any other creditor seeking initiation of insolvency resolution process subject to further compliance of invocation of the said personal guarantee by any other creditor.”

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Compassionate Appointment cannot be denied to children born from the second wife of a deceased employee

“A policy cannot discriminate against a person only on the ground of descent by classifying children of the deceased employee as legitimate and illegitimate and recognizing only the right of legitimate descendant.”

Read more…

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No Corporation/Planning Authority can be compelled to acquire an unusable or unsuitable land and be compelled to pay compensation to landowners

“Once by operation of law, the reservation is deemed to have lapsed, it is lapsed for all purposes and for all times to come.”

Read more…

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Default/Delay in payment of EPF by employer: Mens rea or actus reus not an essential element for imposing civil penalty/damages

The bench of Ajay Rastogi and Abhay S. Oka, JJ has held that any default or delay in the payment of EPF contribution by the employer under the Employees Provident Fund & Miscellaneous Provisions Act, 1952 is a sine qua non for imposition of levy of damages under Section 14B and mens rea or actus reus is not an essential element for imposing penalty/damages for breach of civil obligations/liabilities.

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Advocate an officer of the Court; May be appointed by CMM/DM to assist in execution of order passed under Section 14(1) of SARFAESI Act

The Court was called upon to decide whether the past practice followed by most of the courts across the country in recognising the power of the CMM/DM to appoint an advocate as a commissioner to assist him in merely taking possession of the secured assets and documents relating thereto and to forward the same to the secured creditor, needs to be discontinued as being prohibited owing to insertion of sub-Section (1A) of Section 14 of SARFAESI Act?

Read more…

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Benefit conferred on one or a set of people, without legal basis or justification, cannot multiply and be relied upon as a principle of parity

“A principle, axiomatic in this country’s constitutional lore is that there is no negative equality.”

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Is independent suit questioning a compromise decree maintainable or one has to approach the same Court which recorded the compromise to challenge it? SC answers

“If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.”

Read more…

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Bank Employees misappropriate funds. Confession by one leads to mild penalty; No evidence against another leads to dismissal! SC directs reinstatement

“A reading of the disciplinary authority’s order reveals that his past record of minor misconduct played a major role in determining his guilt, despite lack of evidence, and the extreme penalty of dismissal.”

Read more…

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Section 138 NI Act| Prima-facie indication as to complaint by a company through an authorised employee having knowledge of the case enough for Magistrate to take cognizance

The 3-judge bench of NV Ramana, CJ and AS Bopanna* and Hima Kohli, JJ has held that when the complainant/payee for a complaint filed under Section 138 of NI Act is a company, an authorized employee can represent the company. Such averment need not be in any particular manner and prima facie material is sufficient for the Magistrate to take cognizance and issue process.

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SC discusses law on compensation for injurious affection; Summarises items under S. 23(1) of LA Act to be considered by court while determining compensation

“Railway line is not like a roadway. Roads can take diversion easily, but not railway lines.”

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Can sale pursuant to a public auction, be set aside at the instance of strangers to the auction proceeding? SC decides

if there was any error in the decision-making process adopted by the authority, the remedy available was to question the sale deed in an appropriate proceeding available under the law and not by filing a petition under Article 226 of the Constitution of India”.

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Financier-in-possession of a motor/transport vehicle liable to pay tax under U.P. Motor Vehicles Taxation Act, 1997

While dealing with the scope of Section 12 of the U.P. Motor Vehicles Taxation Act, 1997, bench of MR Shah* and BV Nagarathna, JJ has held that a financier of a motor vehicle/transport vehicle in respect of which a hire-purchase, lease or hypothecation agreement has been entered, is liable to tax from the date of taking possession of the said vehicle under the said agreements.

Read more…

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Chased and killed in the mid night much after the altercation, even after the deceased reached his house. Cold blooded murder or  culpable homicide not amounting to murder? SC decides

In a case relating to murder versus culpable homicide legal controversy, the Division Bench of M.R. Shah* and B.V. Nagarathna, JJ., held that the Uttaranchal High Court had erred in observing that the case would fall under Fourth exception to Section 300 IPC and had failed to properly appreciate the multiple injuries sustained by the deceased.

Read more…

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Bank entitled to withhold payment where Bond holder’s title is clouded as fraudulent

“Shylock has received their promised pound of flesh but they seem to want more”

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Is unstamped Arbitration Agreement enforceable?

Supreme Court holds question being pending before larger Bench will not hinder arbitration proceedings unless issue indicates existence of deadwood.

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Economic Offence| 25 crores siphoned off by forging documents and misusing KYCs of employees; SC cancels Delhi HC’s order granting bail to the suspect

Mere non-misuse of liberty cannot be a ground to confirm the bail order otherwise not sustainable in law.

Read more…

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5-year moratorium on new Pharmacy Colleges: Chh HC’s interim order directing PCI to consider application for affiliation stayed; Matter to be disposed of in 4 weeks

Supreme Court imposed a stay on the Chattisgarh High Court’s interim order directing the PCI to permit the respondents to submit their application required for the necessary permission and approval and also for grant of necessary affiliation for the academic session 2022-23.

Read more…

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Post Poll Violence| Anticipatory Bail to Mamta’s Banerjee’s Election Agent SK Supiyan in murder case; Must fully cooperate in the probe

The Court made clear that the pre-arrest bail is liable to be cancelled if it is found that the appellant is not cooperating for the investigation.

Read more…

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By purchasing power at higher rate, Andhra Pradesh DISCOMS have acted contrary to public interest

“Every action of a State is required to be guided by the touch¬stone of non-arbitrariness, reasonableness and rationality. Every action of a State is equally required to be guided by public interest. Every holder of a public office is a trustee, whose highest duty is to the people of the country.”

Read more…

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Whether lotteries being res extra commercium takes away CCI’s Jurisdiction to entertain anti-competition activities relating to lotteries? SC decides

“A simple aspect of anti-competitive practices and cartelisation had got dragged on for almost ten years in what appears to be a mis-application by the High Court of the interplay of the two Acts, i.e., the Competition Act and the Regulation Act.”

Read more…

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“Debt arising out of advance payment for supply of goods or services is an operational debt”; SC allows operational creditor to initiate CIRP

“…no doubt that a debt which arises out of advance payment made to a corporate debtor for supply of goods or services would be considered as an operational debt.”

Read more…

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SC sets aside HC order for applying test of criminal proceedings to departmental proceedings

“No case for interference either on law or on moral grounds”

Read more…


IN OTHER NEWS


Supreme Court invites applications seeking conferment of designation of Senior Advocates


SUPREME COURT CASES 

[An overview of the cases reported in the latest volumes of SCC]


2021 SCC Vol. 9 Part 3

In Part 3 of Volume 9, read this very interesting decision, where the Election Commission of India (EC) had sought a direction.

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2021 SCC Vol. 10 Part 1

In Part 1 Volume 10 of 2021, read Supreme Court’s decision in Supertech Ltd. v. Emerald Court Owner Resident Welfare Assn.(2021) 10 SCC 1, wherein the Court made an observation that “illegal constructions have to be dealt with strictly to ensure compliance with the rule of law.”

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2021 SCC Vol. 10 Part 2

In this part, read three really interesting Articles along with some very carefully analysed decisions of the Supreme Court by our editors.

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2021 SCC Vol. 10 Part 3

This part has a very interesting decision from the Supreme Court, wherein the Court issued “general uniform direction” of deduction of 15 per cent of the annual school fees for the academic year 2020-2021 in lieu of unutilised facilities/activities and not on the basis of actual data school-wise.[Indian School v. State of Rajasthan, (2021) 10 SCC 517].

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2021 SCC Vol. 10 Part 4

Evidence Law, Arbitration Law, Service Law and many more interesting decisions covered in this part covering some very pertinent laws.

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2022 SCC Vol. 1 Part 1

In 2022 SCC Volume 1 Part 1, read a very significant decision of Supreme Court wherein it made a very pertinent observation with regard to arbitral awards,

“There is a disturbing tendency of courts setting aside arbitral awards, after dissecting and reassessing factual aspects of the cases to come to a conclusion that the award needs intervention …”

[Delhi Airport Metro Express (P) Ltd. v. DMRC, 2021 SCC OnLine SC 695]


 

Case BriefsSupreme Court

Supreme Court: While addressing the issue of obviating difficulties to victims of trafficking with respect to travelling long distances for the purpose of giving evidence in trial courts, the Division Bench of L. Nageswara Rao and B.R. Gavai, JJ., furthers recording of evidence of child victims/witnesses of human trafficking via video-conferencing. Opining that the video-conference procedure need not be restricted only to the period affected by COVID-19 pandemic, the Bench remarked,

“Though, the public-spirited Petitioners were concerned with the safety of the trafficked children being forced to travel long distances for giving evidence during the COVID-19 pandemic, we are of the opinion that the suggestions made by the learned Amicus Curiae, in consultation with Ms. Shenoy, relating to the SOP should be put in practice as a regular feature.”

A petition was filed before the Court seeking issue of mandamus directing that during COVID-19 pandemic, the recording of evidence of child victims/witnesses of human trafficking across Districts/States/Countries be ordinarily undertaken via video-conferencing from a government facility within the local jurisdiction of the residence of such children. Considering the gravity of the matter a suo motu case was registered by the Court and Mr. Gaurav Agarwal had been appointed as Amicus Curiae to assist the Court.

The Pilot Project

The Amicus Curiae had proposed a pilot project, wherein four cases were selected out of which trial had commenced in two cases and direction was given for examination of witnesses by video conferencing. In State v. Rahmatulla, SC No. 151 of 2019, 11 children engaged in stitching work of suit/coat covers were rescued by a surprise rescue operation from premises in North East Delhi, PS Khajuri Khas. The rescued children were sent to their native places, i.e., East Champaran Districts of Bihar. The case was pending in the court of Additional District Judge, Karkadooma, New Delhi. In second case, State v. Mohd. Sherjahan, Case No. 52 of 2019, the Anti-Human Trafficking Unit had rescued four children, who were forced to make bangles in a confined room at Jaipur. The rescued children were sent to their homes at Patna and Gaya in Bihar. The trial in the said case was due to be conducted in POCSO Court-2, Jaipur. The pilot project consisted three stages:

  1. Assessment of state of infrastructure at the Court Point and the Remote Point. The Court Point is in the cities or places where the trial has to take place and the Remote Point is the district/Taluk court complex or the office of the District Legal Services Authority near the place of residence of the victims/witnesses. Availability of necessary equipment for video conferencing, along with other facilities integral to the process, was to be ascertained in the first stage.
  2. The Judge at the Court Point was to fix a date for examination of the witnesses and thereafter, issuing summons to the witnesses. The witnesses be intimated about (i) the address of the Remote Point and date and time of hearing; (ii) name, contact details and a brief explanation of the role of the Remote Point Coordinator (RPC); and (iii) the requirement to carry a proof of identification.
  3. Actual examination of the child witnesses at the Remote Point and the procedures to be followed to ensure that the witnesses are examined in camera and without any influence.

Standard Operating Procedure

After being satisfied with the trial run of examination of child witnesses at remote points, the Amicus Curiae submitted a draft Standard Operating Procedure (SOP) in consultation with Senior Advocate Anitha Shenoy, with five stages which was served on all the State Governments/Union Territories as well as the High Courts for their comments by the order of the Court. On suggestions made by the High Courts, the SOP was modified and the modified SOP reads as:

  1. Testimony of children be recorded through video conferencing either at the video conferencing room of the court complex in the district or the office of DLSA where the child is residing.
  2. District Judges to ascertain the availability of video conferencing facility in the district/Taluk court complex or DLSA office and communicate the same to the jurisdictional High Court. The High Courts were asked to place the said information on its website on or before 30-04-2022 and ensure availability of video-conferencing infrastructure in every district, especially where the incidence of child trafficking cases is high.
  3. DLSA to be the Remote Point Coordinator (RPC) for recording of the testimony of child witnesses or appoint a Retired judicial Officer as a RPC, information of which, i.e. the names and contact details of the RPC of each district on the website.
  4. In cases of inter-state/inter-district child trafficking the Trial Court should ordinarily give preference to examination of the child witness through video conferencing.
  5. The authorized officer at the Court Point to get in touch with the RPC at the Remote Point and work out all modalities for recording of the child witness statement through video conferencing.
  6. The child witness be entitled to the presence of a support person under Protection of Children from Sexual Offences Rules, 2020, a diet money on the basis of the distance travelled to reach the remote point and any other best practice required by the law.
  7. Copy of documents required to be marked or shown to the witness may be transmitted by the Court electronically to the RPC.
  8. Questions posed by the Public Prosecutor/Defense Counsel may be put to the Trial Judge, who in turn will put them to the witness and the Trial Court would record the testimony of the witness.
  9. On completion of recording of evidence, the deposition will be sent by the Trial Court on email to the RPC who shall read the same out to the witness. After ascertaining the deposition is correct and verified as under law including the affixation of the child’s thumb impression/signature, the RPC may certify the same and send the deposition back, in a secure manner, to the Trial Court by Speed Post and by electronic means as permitted by law. An original may also be kept by RPC in case the Speed Post is misplaced for some reason.
  10. Whenever a Trial Court proposes to record the testimony of a child witness, who is residing in another State, an intimation of the same should also be given to the Registrar of the High Court of the Court point, who shall intimate the High Court of the Remote Point with a request to render all assistance possible for recording of the testimony of the child.
  11. The SOP is only a broad guideline. The method and manner of recording of testimony be dependent upon the video conferencing rules framed by the respective High Courts and the recording of the testimony should be done expeditiously.

Conclusion and Directions

According to data released by agencies the problem of Child Labour in India is persisting inspite of the best efforts of the Government. Reiterating the importance of protection of children and rescuing and rehabilitating them, the Bench opined that the said SOP need not be restricted only to the period affected by the COVID-19 pandemic.

Observing that the permissibility of recording evidence through video conferencing had been considered by the Supreme Court in State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601, Sakshi v. Union of India, (2004) 5 SCC 518, as well as Eera v. State (NCT of Delhi), (2017) 15 SCC 133, and Sampurna Behura v. Union of India, (2018) 4 SCC 433, wherein the Court had encouraged the use of technologies in court proceedings, the Bench stated,

“We have carefully examined the draft SOP which contains minute details about steps to be taken for recording the testimony of child witnesses at Remote Points. Responses have been filed by the High Courts. There is no objection taken by any High Court to the SOP being put in practice immediately.”

Accordingly, the Bench directed that the SOP be followed in all criminal trials where child witnesses, not residing near Court Points, are examined and not physically in the courts where the trial is conducted. The RPCs were directed to ensure that child-friendly practices are adopted during the examination of the witnesses and the concerned judicial officer at the Remote Point and the trial Court were to that the recording of evidence shall be in camera wherever necessary.

Noting that NALSA had also come forward to place the details regarding the availability of video conferencing facility for recording of statement of child witnesses in the offices of DLSA and court complex and the name and contact number of the RPC on its website and the website of State Legal Services Authority (SLSA) by 30-04-2022, the Bench expressed,

“We appreciate the stand taken by NALSA to strengthen the video conferencing facilities in DLSA offices in the States of Uttar Pradesh, Bihar, West Bengal, Odisha and Assam, to begin with to ensure that in case video conferencing facility in the court complex is not available, video conferencing facility in DLSA office can be utilized for recording of the evidence of the child witness.”

[Children in Street Situations, In Re, 2022 SCC OnLine SC 189, decided on 01-02-2022]


Kamini Sharma, Editorial Assistant has put this report together 


 

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of the United States (SCOTUS): In 8-1 majority, Thomas, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which Roberts, CJ., and Breyer, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett, JJ., joined, and an opinion with respect to Part III, in which Gorsuch and Kavanaugh, JJ., joined. Gorsuch, J., filed a concurring opinion, in which Alito, J., joined as to Part I, and in which Kavanaugh, J., joined as to Part II. Sotomayor, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer and Kagan, JJ., joined. Alito  J. filed a dissenting opinion.

Factual Matrix

Respondents alleged that they were trafficked into Ivory Coast as child slaves to produce cocoa.

It was stated that U. S. based companies Nestlé USA, Inc., and Cargill, Inc., do not own or operate cocoa farms in Ivory Coast, but they do buy cocoa from farms located there and provide those farms with technical and financial resources.

Alien Tort Statute

Respondents sued Nestle, Cargill and others under the Alien Tort Statute (ATS) which provides the Federal Court’s jurisdiction to hear claims brought by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States contending that the said arrangement aids and abets child slavery.

District Court had dismissed the suit after this court held that the ATS does not apply extraterritorially.

Ninth Circuit let this suit proceed as respondents pleaded as a general matter that “every major operational decision by both companies is made in or approved in the U.S. and allegations of general corporate activity, like decision making cannot alone establish domestic application of the ATS.

our precedents are clear that creating a cause of action to enforce international law beyond three historical torts invariably gives rise to foreign-policy concerns.

JUSTICE GORSUCH, with whom JUSTICE ALITO joins as to Part I, and with whom JUSTICE KAVANAUGH joins as to Part II, concurring.

  • Notion that Corporations are immune from suit under the ATS cannot be reconciled with the statutory text and original understanding.
  • The time has come to jettison the misguided notion that courts have discretion to create new causes of action under the ATS

Bench stated that causes of action in tort normally focus on wrongs and injuries, not who is responsible for them.

Further, it was stated that the real problem with the present lawsuit and others like it isn’t whether the defendant happens to be a corporation., it’s this: Just as the ATS nowhere privileges corporations, it nowhere deputizes the Judiciary to create new causes of action. Rather, the statute confers “jurisdiction” on federal courts to adjudicate “tort” claims by aliens for violations “of the law of nations.”

This Court has never—not once in 230 years—invoked the ATS to create a new cause of action.

In Sosa v. Alvarez-Machain, 542 U. S. 692 (2004), Court recognized that federal judges usually may not invoke the ATS to create new causes of action, but it also proceeded to speculate that in some future case this Court might invoke the ATS to create a new cause of action.

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAGAN join, concurring in part and concurring in the judgment.

Bench held that the respondents failed to allege a domestic application of the Alien Tort Statute, hence their complaint must be dismissed.

The trouble with JUSTICE THOMAS’ test is that it is unmoored from both history and precedent. The ATS was a statute born of necessity.

One needs to look no further than the text of the ATS to understand the task that the First Congress assigned to the Federal Judiciary. As originally enacted, the ATS gave federal courts “cognizance . . . of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.

JUSTICE THOMAS argued that “creating a cause of action to enforce international law beyond three historical torts invariably gives rise to foreign-policy concerns.”. He offered no meaningful support for that sweeping assertion, nor did he explain why an ATS suit for the tort of piracy, for example, would categorically present fewer foreign-policy concerns than a suit for aiding and abetting child slavery.

JUSTICE THOMAS suggests that federal courts lack “the ‘institutional capacity’ to consider all factors relevant” to recognizing actionable torts under the ATS.

His pessimism aside, there was no reason to doubt the federal court’s ability to identify those norms of international law that were sufficiently “specific, universal and obligatory” to give rise to a cause of action under the ATS.

Hence, there is nothing so mysterious about a law’s international origins that would prevent courts— bodies specifically tasked with, and particularly capable of, interpreting and applying laws—from ably adjudicating a suit for damages arising out of a “tort . . . committed in violation of the law of nations.”

Since Justice Sotomayor found no support for Justice Thomas’ proposition in the ATS or in the Court’s precedents, he did not join that portion of his opinion.

JUSTICE ALITO, dissenting.

  • Whether domestic corporation are immune from liability under Alien Tort Statute?

Justice Alito held that if a particular claim may be brought under the ATS against a natural person who is a US Citizen, a similar claim may be brought against a domestic corporation.

Court disposes of the case holding that respondent’s complaint sought extraterritorial application of the ATS, but in Justice Alito’s view Court should not decide that question at this juncture, it is tied to the question of whether the plaintiffs should be allowed to amend their complaint, and in order to reach the question of extraterritoriality, the Court must assume the answers to a host of important questions.

Part III of JUSTICE THOMAS’s opinion and Part II of JUSTICE GORSUCH’s opinion make strong arguments that federal courts should never recognize new claims under the ATS. But this issue was not raised by petitioners’ counsel, and I would not reach it here.

Conclusion

Supreme Court held that Nestle and Cargill will not be sued for aiding and abetting child slavery at farms in Ivory Coast.

[Nestle USA, Inc. v. Doe, 593 U.S __(2021), decided on 17-06-2021]

Case BriefsInternational Courts

European Court of Human Rights (ECHR): In an interesting case regarding child trafficking the Fourth Section of ECHR had came up with a landmark ruling. The Bench, while acknowledging the right to protection of victims of trafficking ruled that,

“It is axiomatic that the prosecution of victims of trafficking would be injurious to their physical, psychological and social recovery and could potentially leave them vulnerable to being re-trafficked in future.”

 Facts and Findings

The instant case relates to two minor applicants, both of whom were convicted for criminal offences connected to their work as gardeners in cannabis factories. The Trial had been initiated against both the applicants and both of them, due to incompetent legal aid had pleaded guilty. The Crown Prosecution Service (CPS) persuaded to prosecute them even after being made aware by the United Kingdom Border Agency that there were reasonable grounds for believing that the first applicant had been trafficked. Similarly, the second applicant as well was recognised as victim of trafficking by the designated Competent Authority. The CPS while concluding that there was no credible evidence that the applicants had been trafficked, sentenced the first applicant to twenty months detention in a young offenders’ institution and eighteen-month detention and training order to the second applicant.

Similarly, the Court of Appeal opined that Article 26 of the Anti-Trafficking Convention was directed at sentencing decisions as opposed to prosecutorial decisions and could not, therefore, be interpreted as creating immunity for victims of trafficking who had become involved in criminal activities the court dismissed their appeal against conviction. However, the Appellate Court had reduced the sentence of the first applicant as a twelve-month custodial sentence and considering the young age of the second applicant his punishment was reduced as well to a four-month detention and training order. Being aggrieved by the conviction order the applicants reached the Supreme Court which had refused their applications.

Assessment

The Bench noted that the first applicant was discovered by police at a cannabis factory during the execution of a drug warrant, thus, the authorities should have been alert to the possibility that he – and any other young persons discovered there – could be a victim of trafficking. The CPS failed to consider that the relevant nexus had not been established between the trafficking and the criminal offence; rather, it repeatedly found that there was no clear evidence that the first applicant had been trafficked. The Court remarked,

“The prosecution of victims, or potential victims, of trafficking may, in certain circumstances, be at odds with the State’s duty to take operational measures to protect them where they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been trafficked.”

Even though the first applicant was subsequently recognised by the Competent Authority as a victim of trafficking, the CPS, disagreed with that assessment without providing adequate reasons for its decision and the Court of Appeal, relying on the same inadequate reasons, twice found that the decision to prosecute him was justified.

Similarly, the competent authority had subsequently affirmed the possibility of the second applicant being a victim of trafficking at the time of his arrest. Observing that both the applicants were minor at the time of trafficking, the Bench stated,

“Child victims of trafficking are a particularly vulnerable group who may not be aware that they have been trafficked, or who may be too afraid to disclose this information to the authorities.”

 The State had a positive obligation to take operational measures to protect such victims; however, instead the criminal proceedings were allowed to proceed against them in the instant case.

Can Right to Fair Trial be Waived by Pleading Guilty?

On the plea of State that victims right to a fair trial was waived by pleading guilty, the Court was of the view that the victims had been deprived of a fair trial because the police had failed to undertake an investigation capable of providing them with exculpatory evidence, even though there was a credible suspicion that they had been trafficked; and the CPS’s assessment of the case was fundamentally flawed because it ignored the indicators of trafficking which were present.

It is true that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will the entitlement to the guarantees of a fair trial. However, such a waiver must be established in an unequivocal manner and it must not run counter to any important public interest.

Furthermore, given that trafficking threatens the human dignity and fundamental freedoms of its victims and is not compatible with a democratic society and the values expounded in the Convention, in the absence of any assessment regarding veracity of trafficking any waiver of rights by the applicants would run counter to the important public interest in combating trafficking and protecting its victims.

Whether the Trial was Prejudiced?

The Court opined that in respect of both applicants the reasons given by the CPS for disagreeing with the Competent Authority were wholly inadequate. Also, though the applicants invoked Article 4 of Anti Trafficking Convention the Court of Appeal did not consider their cases through the prism of the State’s positive obligations under that Article. The Bench expressed,

“Such an approach would in effect penalise victims of trafficking for not initially identifying themselves as such and allow the authorities to rely on their own failure to fulfil their duty under Article 4 of the Convention to take operational measures to protect them.”

Under Article 4 of the Convention, it was the State which was under a positive obligation to both to protect victims of trafficking and to investigate situations of potential trafficking and that positive obligation was triggered by the existence of circumstances giving rise to a credible suspicion that an individual has been trafficked and the State had blatantly failed to meet that obligation.

 The victims cannot be required to self-identify or be penalised for failing to do so.

Consequently, it had been held that there had been a violation of Articles 4 and 6 of the Anti-Trafficking Convention on account of the failure of the respondent State to fulfil its positive obligations under Article 4 to take operational measures to protect the victims of trafficking. Hence, both the victims were granted the sum of EUR 25,000 each in respect of non-pecuniary damage. Additionally, the cost of EUR 20,000 was also imposed on the state that was to be paid to the applicants.[V.C.L. and A.N. v. United Kingdom, Applications nos. 77587 of 12, decided on 16-02-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

OP. ED.

“You may choose to look the other way but you can never say again that you did not know.”

-William Wilberforce

30th July is marked as the day to spread awareness of the plight of human trafficking victims with a message to make this world a better place to live in.

Human Trafficking manifests modern-day slavery, which is the most brutal form of crimes and one of the most serious human rights abuses. An individual suppressing another by using force and taking advantage of the person’s vulnerability while ravaging dignity and integrity in the most extensive form is what constitutes human trafficking.

Diminishing the self-worth of a person and leading him/her to an environment that is nothing less than prison and forcing an individual to put themselves on exhibit and act like a profit-making machine for the predators/traffickers is the essence of human trafficking.

The primary cause of this phenomenon is poverty, which draws the victim towards the trafficker by putting up their dignity on display with costs. Sometimes in the semblance of religious beliefs or at times parents trying to repay their debts push their young ones into this horrendous trap.

The three most common types of human trafficking are Forced Labour, Sex trafficking and Debt Bondage.

Trafficking in persons is defined by the UN as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.

According to the United Nations, following are the elements that constitute Human Trafficking:

The Act (What is done)

Recruitment, transportation, transfer, harbouring or receipt of persons

 The Means (How it is done)

Threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim

 The Purpose (Why it is done)

For the purpose of exploitation, which includes exploiting the prostitution of others, sexual exploitation, forced labour, slavery or similar practices and the removal of organs.

 Human Trafficking is one of the gruesome acts for which several organisations have been fighting for more than a decade now.

Prevalence of a generic thought about Human Trafficking, which acts as a common belief among society is sex trafficking. This myopic belief draws a conclusion in the mind of people which is restrictive in nature in turn diluting the understanding of the real aspect of this humongous term.

Every occurrence of human trafficking, which ranges from being forced, tricked or misled into modern-day slavery or enslaving individuals for personal benefit in any manner is disastrous for any individual. If these people are able to escape a shrouded abduction and hidden enslavement, they have specific needs that are unique to their situation. We have leading agencies working on rehabilitation, but the question arises that are we as a society raising enough awareness to tackle this syndrome and put an end to it.

Traffickers lure these victims with the promise of a superior and better life and eventually leads them to be blinded and getting abused. 

Human Trafficking is one of the ugliest forms of human rights violations. It is a torturous web wherein people fall prey to being tortured and exploited with no mercy on them. This gruesome act has no boundaries or discrimination, in fact, a person as old as 60 years to a child aged 5 years could also be in the line of victims/survivors.

This condemnable crime can take a step back every day if we keep taking steps forward in becoming more prudent as individuals and create awareness among people.


† Legal Editor, EBC Publishing Pvt. Ltd.

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Harsh Tandon and Soumen Sen, JJ., addressed the matter in regard to the child marriages in the garb of child trafficking and called for detailed status reports for the same.

Additional Chief Secretary, Home Affairs Department and Home Secretary district-wise details of the cases in relation to violation of child rights of all forms till 15th June, 2020 has been disclosed.

The above-mentioned report details out the nature of the violation of child rights and the steps taken by the police authorities in connection with such cases.

Alarming rise of child marriages during the lockdown has given a strong impression that these child marriages may be in the garb of child trafficking.

In view of the above Court directed Superintendent of Police of every district to investigate into the cases regarding child marriage and to find out if child marriages are for economic consideration or under the garb of child trafficking.

With regard to North-24 Parganas report, Court directed the Home Secretary to file a report disclosing such “other violation of child rights” and the steps taken by the police against the violators.

Further the Court also directed the Superintendent of Police of all the districts to ensure that the victims are produced immediately and not later than 48 hours before the Magistrates for recording of statement under Section 164 of the CrPC.

Most of the Juvenile Justice Boards have been functioning under tremendous stress and infrastructure is extremely inadequate.

Court noted the following deficiencies:

  1. No chamber for the Principal Magistrate and other members of the committee,
  2. Lack of office space,
  3. No separate room for vulnerable child witnesses,
  4. No separate entrance for the C.C.L. and vulnerable witnesses,
  5. No official vehicle is assigned to the Principal Magistrate,
  6. Lack of broad-band connection and inconsistent bandwidth,
  7. Lack of hardware and software infrastructure required for audio- video linkage,
  8. Inadequate and/or no support staff like bench clerk, lower division clerk-cum-typist, counsellor etc.,
  9. No separate provision of wash-room for female staff/members/lady officers,
  10. No separate room for counselling for the C.C.L.s and for sitting of social worker members,
  11. Lack of maintenance of public toilets and wash-room of Principal Magistrates

Advocate General assured the Court that he would immediately take the the above issues with the Home Secretary and would apprise the steps taken to remove such deficiencies.

Report filed by the Secretary, Department of Health and Family Welfare shows that 75 children of the migratory workers have been found to be Covid-19 positive and subsequently they were referred to designated COVID hospitals, samples were collected from asymptomatic children of migratory workers and 43 of such samples were reported as positive.

Considering the safety of the children bench would like to know if any random test was carried out of the children of the migratory workers and if so, disclose the result of such random test with specific comment as to whether anyone of them tested positive, save and except the particulars already disclosed.

Report to be filed with regard to investigation in child trafficking case

Court has also asked the Advocate General to file a report with regard to a newspaper report wherein it appeared that one female minor girl had been recovered by Maharashtra Police.

Court adjourned the matter till 2nd July, 2020. [Contagion of COVID-19 Virus in Children, In Re., 2020 SCC OnLine Cal 1066   , decided on 25-06-2020]

Case BriefsCOVID 19High Courts

Calcutta High Court: A Division Bench of Soumen Sen and Harish Tandon, JJ., while addressing a petition stated that,

“…physical and mental health of the children are of paramount consideration and no compromise should be made on this score.”

Court directed the Principal Secretary, Home Department to be present in view of the alarming rise in child trafficking and child rights abuse.

Advocate General for the State, Kishore Dutta apprised the Court with regard to physical and mental health conditions of the children at all the Homes.

Secretary, Department of Women and Child Development and Social Welfare submitted in their report that the ratio of children and councillors (i.e. 50:1) is more or less maintained in all the Homes except few homes where the number of Councillors possibly have not been increased, as the number of children in such Homes had never exceeded the sanctioned strength.

Court has also been informed that the Councillors whose service for the time being had remained unutilized due to reduced number of children in various Homes may be deployed in other Homes or rearrangement could be made from the Councillors functioning in a particular district depending upon the necessities and exigencies of the situation.

Bench called for a report from the Secretary on the following aspect:

Government should maintain a list of Councilors in each district on the basis of the sanctioned strength of each Home so that when the sanctioned strength is reached the children do not suffer due to lack of counselling.

all the children be in homes or with their parents during this time require constant monitoring and their safely and security are of paramount consideration.

Secretary, Department of Health in his affidavit had disclosed the performance and the good health practice initiated by the said department for the children of the migrant workers.

Bench explained to Secretary, Health Department, the details that would be required with regard to the institutional quarantine, home quarantine and what exactly would mean with regard to the expression “Higher Referral” and “other specific action taken”.

Further the concerns that were placed before by the Court were as follows:

  • Why the mental health support was provided only to 13603 children out of 29658 and COVID-19 test was carried out only in respect of 3005 children?
  • Infrastructure of the Institutions, which were designated as institutional quarantine centers including the number of Doctors and Councilors attached to such quarantine centers.

Court directed Secretary, Department of Women and Child Development and Social Welfare to file an affidavit in the above regard.

Bench observed the following:

a report has been filed by a NGO “Bachpan Bachao Andolan” before the Supreme Court wherefrom it appears that 136 minor girls being married off in Bengal due to the lockdown and the devastation caused by cyclone Amphan. An apprehension is expressed that on lifting of lockdown there is likely to be a massive spurt in child trafficking – for labour and commercial sexual exploitation. The State of West Bengal has many porous districts and incidents of child trafficking are not uncommon. The middlemen are quite active in some of these porous districts of Bengal.

In view of the above, Court stated that it would be failing in its duty if they cannot protect the children from any kind of abuse including their exploitation.

The children are most vulnerable class and susceptible to be trafficked either in lieu of a better future or for economic sustainability of the family, which they belong to.

It is a common perception that the natal family is the safest heaven of the younger children yet they are trafficked by the family itself because of the poverty and uncertainty of the social stability. The exodus of the migrant labourers due to pandemic have exposed these younger children to be trafficked for some monetary gain and sustainability in life.

West Bengal Commission for Protection of Child Rights report is alarming where child marriages and trafficking have been reported.

 Court directed Panchayat Pradhan of all the panchayats to sensitize the districts about the child rights and evils of child marriages.

Secretary, Labour Department was also directed to file a report as to the steps taken to prevent child labour.

Matter to be further considered on 18th June, 2020. [Contagion of COVID-10 Virus in Children Protection homes, In Re; 2020 SCC OnLine Cal 974; decided on 10-06-2020]