Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench comprising of Sujoy Paul and Arun Kumar Sharma, JJ., held that the Demonstrators and Tutors working in cities/urban areas are to be treated as ‘in-service candidates’ as neither the relevant order nor the rule precludes the Medical Officers working in urban areas or hospitals from benefit of being ‘in-service candidate’. The Bench remarked,

“If we hold that the Demonstrators and Tutors are eligible despite being posted in towns (not covered under difficult, rural or remote areas) as in-service candidates and petitioners are not, it will divide a homogeneous class of ‘in-service candidates’ and will create a class within the class without there being any rationale and justification for the same.”

The interesting conundrum in the instant case was whether the petitioners, MBBS qualified Doctors rendering their services as regular employees in the Department of Health Services, State of M.P. fall in the category of ‘in service candidates’ and whether they have separate channel of entry in P.G. Course as per order dated 19-08-2021 issued by the State Government.

As per the Government order dated 19-08-2021, the reservation/separate channel of entry to the extent of 30% in P.G. Degree Course was made. The order covered Demonstrator, Tutors and the Medical Officers, the category to which present petitioners belonged. Further, as per the as per Rule 2(k) of M.P. Chikitsa Shikisha Pravesh Niyam 2018, the petitioners were covered in the definition of “serving employees”.

The petitioners urged that 30% reservation/separate channel of entry, earmarked for Degree Seats for Demonstrator/Tutors/Medicals Officer which made the petitioners being Medical Officers entitled to such reservation yet they were treated to be eligible only for open seats.

Difficult Area vis-a-vis Difficult Services

Evidently, a policy decision dated 28-03-2021 was issued to provide additional marks/incentive to the serving candidates. However, the benefit of incentive was confined to the candidates working in rural, remote and difficult areas.

Although, Harda and Indore, where petitioners were admittedly working did not fall under the umbrella of “difficult area”, the petitioners argued that the policy was issued in Pre-Covid era and considering the fact that Indore and Harda District Hospitals were also difficult areas where the petitioners were rendering their service 24×7 during Pandemic era, they must be treated to be performing difficult service, and therefore, the benefit of the order dated 28-03-2019 must be extended in favour of petitioners as well. Citing the decision in Malpe Vishwanath Acharya and others Vs. State of Maharashtra, (1998) 2 SCC 1, the petitioners submitted that a provision of law may be valid at the time of its issuance but may lose its relevance by efflux of time. Therefore, the petitioners urged that during Pandemic, since all the Doctors working in District Hospitals became vulnerable and worked at the cost of their and families’ lives, they should be included in the category of difficult posting/area.

Accordingly, the Bench accepted the stand of State that under Regulation 9 (8) of the MCI PG Regulations 2000 emphasis is on ‘difficult area’ and not on ‘difficult services’.

(a) Whether ‘in-service candidates’ includes doctors posted in District Hospital, Harda and Indore respectively?

Opining that a conjoint reading of the Government Order dated 19-08-2021 and the rules leaves no room for any doubt that definition of ‘in-service candidate’ is wide enough to include the medical officers and that admittedly, petitioners were working as Medical Officers in District Hospitals, the Bench held that there was no impediment which deprived the petitioner from right of consideration in Post Graduate Degree Course as a separate channel of entry.

Rejecting the argument of the State that the relief claimed by the petitioners was contrary to Medical Council of India (MCI) Regulations and the State Government cannot legislate contrary to the Regulations framed by MCI as prescribing standard of education on Pan India basis is within the domain of MCI, the Bench ruled that there is no Regulation of MCI which deprives the present petitioners for consideration as in-service candidates as the condition of service in “difficult area” as required under Regulation 9(8) is applicable to ‘Diploma Course’ and not the course in question i.e. Postgraduate Degree Course. The Bench stated,

“This argument pales insignificance because present matter does not relate to Diploma Course. Thus, Regulation 9(8) has no application and no other regulation for this purpose is brought to the notice of this Court.”

Since the governing rule (Admission Rules) brought the petitioners within the zone of consideration, the Bench held that the petitioners had a separate channel of entry being Medical Officers in earmarked 30% total seats of Postgraduate Medical Courses.

(b) Whether the petitioners are entitled to get incentive of marks as per circular/order dated 28-03-2019?

The Order dated 28-03-2019 provided for 10% additional marks to the doctors who had their place of posting in the last one and a half year in a ‘difficult area’ as defined under Regulation 9(8). The petitioners, claiming to be serving in difficult situation during pandemic demanded parity with those candidates whose place of service was classified as difficult area and consequently, the petitioner were seeking to get the benefit on 10% incentive marks on that basis.

Accepting the stand of the State was that Regulation 9(8) is very clear that emphasis is on ‘difficult area’ and not on ‘difficult services’ and the area in which petitioners were working were not difficult areas at all, and further observing that the order dated 28-03-2019 was not called in question, the Bench held that the said order is a policy decision taken by the Government which could not be lightly disturbed. The Bench added, the policy decision can be interfered with on limited grounds and when it was not even challenged, it has to be read as such and the Court cannot re-write and insert something which is not there in their policy decision. Accordingly, the claim of the petitioners was rejected with regard to incentive marks.

Conclusion

In view of foregoing analysis, the Bench held the following:

  1. Rules – Definition of ‘in-service candidates’ also includes the Medical Officers working in District Hospital whether or not such Hospital is situated in difficult, remote or rural area. Thus, they are entitled to be considered as special entry under 30%.
  2. MCI Regulations – Regulation 9(8). This regulation is applicable to Diploma Course and not to Degree or Post Graduate Degree Course. No provision was brought to the notice of the Court to show that posting at remote, difficult or rural area is essential to become in-service candidate for Post Graduate Degree Course.
  3. Government – The scope of judicial review is very limited. The Government is best suited to take a policy decision which can be interfered with if shown to be palpably arbitrary, discriminatory or unconstitutional. The order dated 28-03-2019 is not arbitrary, discriminatory or unconstitutional.
  4. ‘Difficult area’ does not include “difficult services” rendered in District Hospital Indore and Harda. Thus, question of grant of incentive marks to the petitioners does not arise.
  5. The petitioners fell in the category of ‘in-service candidates’ for the purpose of Postgraduate Medical Courses and the respondents had erred in not treating them in the said category in the impugned chart/table uploaded on the official website. Accordingly, the impugned entries of the chart/table were set aside.

Consequently, the State Government was directed to treat the petitioners as in-service candidates for Postgraduate Degree Course and consider their claim in accordance with law. [Vijendra Dhanware v. State of Madhya Pradesh, W.P. No.25819 of 2021, decided on 14-01-2022]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For petitioners: Shri Siddharth Gupta, Advocate.

For respondent/State: Shri Piyush Dharmadhikari, Govt. Adv. for respondents 1, 2 and 4.

Shri Anoop Nair, Advocate for respondent 3.

Case BriefsCOVID 19Supreme Court

Supreme Court: While addressing a petition making bizarre claim that virgin Coconut Oil can dissolve Covid-19 virus, the Division Bench of Sanjay Kishan Kaul and M.M. Sundresh, JJ., held that it cannot let every person who believes that he has some solution to the virus, to come up in a petition under Article 32 of the Constitution

The writ petition had been filed under Article 32 of the Constitution by a petitioner who claims to be a Lawyer stating that the People’s Republic of China has deliberately spreading Covid-19 as a ‘biological weapon’ and the Court should issue some directions to the Government to take action.

“To say the least this is most misconceived and it is for the elected Government to take necessary action, if such an action has to be taken.”

The petitioner also sought for certain directions to the National District Management Authority for solution of Covid-19 claiming himself to be a Researcher and Scientist who had conducted research to find solutions for Covid-19 and claimed that Virgin Coconut Oil dissolves the virus. Commenting on the bizarre claim, the Bench said,

“Nothing has prevented him from making suggestions to the appropriate authority. We do believe that it is only an endeavour to get his name in the Press and we expect the Press not to oblige.”

Lastly, to prevent prospective litigants from approaching the Court with such baseless claims, the Bench held that the Court cannot let every person who believes that he has some solution to the virus, to come up in a petition under Article 32 of the Constitution.

[Krishnaswamy Dhanabalan v. Prime Minister of India, Writ Petition(s)(Civil) No(s). 902/2021, decided on 10-01-2022]


Appearance by:

For the Petitioner: Krishnaswamy Dhanabalan, (In person)


 Kamini Sharma, Editorial Assistant has put this report together 


 

Case BriefsCOVID 19Supreme Court

Supreme Court: After the Supreme Court Advocates-on-Record Association approached the Court in light of the spread of Omicron, the new variant of the COVID-19 and the drastic surge in the number of COVID cases across the country, the 3-judge bench of NV Ramana, CJ and L. Nageswara Rao and Surya Kant, JJ restored the order dated 23.03.2020 and directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings.

 

The Court made clear that,

  • The balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.
  • In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022.
  • In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.
  • The period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.

 

When the COVID-19 pandemic first hot the World, on 23.03.2020, the Court had directed extension of the period of limitation in all proceedings before Courts/Tribunals including this Court w.e.f. 15.03.2020 till further orders. Read here

On 08.03.2021, the order dated 23.03.2020 was brought to an end, permitting the relaxation of period of limitation between 15.03.2020 and 14.03.2021. While doing so, it was made clear that the period of limitation would start from 15.03.2021. Read here

[IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION, 2022 SCC OnLine SC 27, order dated 10.01.2022]


ALSO READ

SC extends limitation prescribed under the A&C, 1996 and the NI Act,1881

SC’s March 23 order on extension of limitation not applicable to the period of filing charge sheet under Section 167(2) CrPC

 ‘Country is returning to normalcy; Courts/Tribunals are functioning’; Supreme Court ends extension of limitation period for filing petitions/applications/suits/appeals, etc.

 

COVID 19Hot Off The PressNews

Punjab and Haryana High Court orders that:

  • Hearing of cases to be held in Virtual Mode/Video Conferencing Mode only, w.e.f.5-1-2022
  • The present system of filing, listing and mentioning of cases will continue as such.
  • The decision to list freshly registered ordinary cases in the month of January passed vide Order No. 119/RG/Spl./Misc. dated 23-12-2021 will be kept in abeyance.

Punjab and Haryana High Court

[Order dt. 3-1-2022]

COVID 19Hot Off The PressNews

In view of the wide-spreading resurge of COVID-19 (Omicron variant) and consequent restrictions imposed by the various governments decided as under:

  • the cases listed before the Benches of the National Commission from 4-01-2022 onwards till 21-3-2022, shall be heard through Virtual Court Hearing mode (video conferencing) only;
  • Members of the National Commission shall conduct the Virtual Court Hearings (video conferencing) of the cases from the premises of the National Commission.
  • Counsel/parties shall be provided with the online link to appear in their matters.

National Consumer Disputes Redressal Commission 

[Order dt. 3-1-2022]

Case BriefsSupreme Court

Supreme Court: In a case where an intermediary between the sale of PPE products by a supplier in China to a buyer in the United States, challenged the prohibition of the export of PPE products from India, the bench of Dr. DY Chandrachud*, Vikram Nath and BV Nagarathna, JJ held that as a developing country with a sizeable population, banning MTTs in PPE products was critical in ensuring that Indian foreign exchange reserves are not utilized to facilitate the hoarding of PPE products with wealthier nations.

The Court held that,

“Democratic interests that secure the well-being of the masses cannot be judicially aborted to preserve the unfettered freedom to conduct business, of the few.”

What was under challenge and why?

The appellant is the Managing Director of Anzalp Herbal Products Private Limited, a corporate body which inter alia, engages in Merchanting Trade Transactions (MTTs) that manufactures and trades in pharmaceuticals; herbal and skincare products; and personnel protection equipment products such as masks, gloves, sanitisers, PPE overalls, and ventilators. The appellant obtained an international MTT contract to serve as an intermediary between the sale of PPE products by a supplier in China to a buyer in the United States.

At the relevant time, the export of PPE products had been banned by the Union Ministry of Commerce and Industry and the Directorate General of Foreign Trade, through successive notifications dated 8 February 2020, 25 February 2020 and 19 March 2020, due to the ongoing COVID-19 pandemic. Therefore, MTT contracts concerning PPE products were considered impermissible under Clause 2(iii) of the 2020 MTT Guidelines that stated,

“iii. The MTT shall be undertaken for the goods that are permitted for exports/imports under the prevailing Foreign Trade Policy (FTP) of India as on the date of shipment. All rules, regulations and directions applicable to exports (except Export Declaration Form) and imports (except Bill of Entry) shall be complied with for the export leg and import leg respectively.”

The appellant challenged the RBI and UOI’s prohibition of MTTs in respect of PPE products infringes his fundamental rights and freedoms under Articles 14, 19(1)(g) and 21 of the Constitution. It was submitted that the precedents of this Court indicate that once the citizen can demonstrate that the restriction directly or proximately interferes with the exercise of their freedom of trade or to carry on a business, it is the State’s burden to demonstrate the reasonableness of the restriction and that it is in the interest of the general public.

Since the Union of India had prohibited the export of PPE products from India, RBI submitted that in accordance with Clause 2(iii) of the 2020 MTT Guidelines, MTT transactions concerning PPE products were also prohibited since they allowed Indian individuals to assist others in diverting PPE products away from India in the global market. Further, it was clarified that Clause 2(iii) was of a general nature, and the RBI had no jurisdiction to exempt products from its application, since only the UOI determined the nation’s FTP.

Analysis

Since the appellant had assailed the suitability of the measure restricting MTTs in ensuring domestic supplies and for being overbroad in its ambit, since an Indian entity acting as an intermediary in an MTT between two different countries does not impact the availability of PPE products in India, the Court answered four crucial questions that finally led to upholding the validity of the impugned policy decision.

  1. Is the measure in furtherance of a legitimate aim?

“Adequate stocks of PPE products are critical for the healthcare system to combat the COVID-19 pandemic. The State’s aim of ensuring supplies is in furtherance of the right to life under Article 21 and the Directive Principles of State Policy mandating the State’s improvement of public health as a primary duty under Article 47.”

The Court noticed that the appellant had not challenged the legitimacy of the aim of ensuring adequate PPE in India. Also, the RBI, at the time of filing its affidavit on 30 January 2021, had elaborated on the state of the pandemic in the country and the necessity of ensuring adequate stock of PPE products.

It was, hence, found that the executive’s aim to ensure sufficient availability of PPE products, considering the ongoing pandemic, is legitimate. Accordingly, it was held that the impugned measure is enacted in furtherance of a legitimate aim that is of sufficient importance to override a constitutional right of freedom to conduct business.

  1. Is the measure suitable for achieving such an aim?

The Court considered the definition of MTT as defined in the International Monetary Fund in its sixth edition of the Balance of Payments and International Investment Position Manual which states:

“10.41 Merchanting is defined as the purchase of goods by a resident (of the compiling economy) from a nonresident combined with the subsequent resale of the same goods to another nonresident without the goods being present in the compiling economy. Merchanting occurs for transactions involving goods where physical possession of the goods by the owner is unnecessary for the process to occur.”

Hence, it was noticed that while the goods involved in an MTT never enter the territory of the intermediary, they are still recorded as negative and positive exports from the territory of intermediary during the import and export leg of the MTT, which is similar to how ordinary imports and exports would be recorded.

Therefore, MTTs are analogous to traditional imports and exports and hence, it was suitable for the RBI to link the permissibility of MTT in goods to the permissibility of their import/export under the FTP.

  1. Is the measure necessary for achieving the aim?

While MTTs in PPE products may not directly reduce the stock of these products in India, it still does contribute to their trade between two foreign nations. In doing so, it directly reduces the available quantity of PPE products in the international market, which may have been bought by India, if so required. As such, MTTs contribute to reducing the available stock of PPE products in the international market that India could have acquired.

Also, the UOI’s policy to ban the export of PPE products reflects their stance on the product’s non-tradability during the COVID-19 pandemic. It highlights a clear policy choice under which Indian entities shall not be allowed to export these products outside of India, in all probability to the highest buyers across the globe who may end up hoarding the global supply.

Hence, banning MTTs in PPE products was critical in ensuring that Indian foreign exchange reserves are not utilized to facilitate the hoarding of PPE products with wealthier nations. A mere ban on exports would not regulate the utilisation of Indian foreign exchange. Hence, in order to keep India’s policy position consistent across the board, the prohibition of MTTs in respect of PPE products was necessary and the only alternative of ensuring the realisation of legitimate State interest.

  1. Is the measure adequately balanced with the right of the individual?

In the instant case, the RBI has demonstrated a rational nexus in the prohibition of MTTs in respect of PPE products and the public health of Indian citizens. The critical links between FTP and MTTs have been established by the respondents. Facilitating MTTs in PPE products between two distinct nations may prima facie appear as having no bearing on the availability of domestic stocks. However, the RBI has carefully established the connection between the use of Indian foreign exchange reserves, MTTs and the availability of domestic stocks. As a developing country with a sizeable population, RBI’s policy to align MTT permissibility with the FTP restrictions on import and export of PPE products cannot be questioned.

Epilogue

The Court noticed that the right to equality and the freedom to carry on one’s trade cannot inhere a right to evade or avoid regulation. In liberalized economies, regulatory mechanisms represent democratic interests of setting the terms of operation for private economic actors.

“This Court does not espouse shunning of judicial review when actions of regulatory bodies are questioned. Rather, it implores intelligent care in probing the bona fides of such action and nuanced deference to their expertise in formulating regulations. A casual invalidation of regulatory action in the garb of upholding fundamental rights and freedoms, without a careful evaluation of its objective of social and economic control, would harm the general interests of the public.”

The Court, however, clarified that it was not its stance that judicial review is stowed in cold storage until a public health crisis tides over and said,

“This Court retains its role as the constitutional watchdog to protect against State excesses. It continues to exercise its role in determining the proportionality of a State measure, with adequate consideration of the nature and purpose of the extraordinary measures that are implemented to manage the pandemic.”

[Akshay N. Patel v. Reserve Bank of India, 2021 SCC OnLine SC 1180, decided on 06.12.2021]


Counsels

For Appellant: Advocate Aayush Agarwala

For RBI: Advocate Ramesh Babu M R

For Ministry of Commerce and DGFT: Vikramjit Banerjee, Additional Solicitor General


*Judgment by: Justice DY Chandrachud

Legal RoundUpSupreme Court Roundups

Year 2021! The year that started with the hope of the COVID-19 Pandemic nearing an end with countries starting vaccination, ended up becoming deadlier than the year gone by. A year of losses for many, 2021 was also the year when the Supreme Court judges lost one of their own. Justice MM Shantanagoudar, a sitting judge of the Supreme Court, breathed his last on April 24, 2021.

Read: The Judicial Legacy of Justice MM Shantanagoudar

As the Nation was crippled with hardship and adversity, the Supreme Court refused to bog down and went on to deliver 865 judgments, which is a lot more than the number of judgments delivered in the 2020.

The year also witnessed the appointment of 9 judges, including 3 women judges and if all goes well, Justice BV Nagarathna, might take oath as the first woman Chief Justice of India in 2027!  Read more…

5 judges, including the former CJI Justice SA Bobde, retired. Justice NV Ramana took oath as the 48th Chief Justice of India. Read more…

Also read:

·        Chief Justice SA Bobde retires: A look at his legacy and justice in the time of COVID-19

·        A Winner All Along – Justice Indu Malhotra

·        Messiah of the sufferers: Bidding adieu to Justice Ashok Bhushan

·        A Multifaceted Expert — Justice Rohinton Fali Nariman

·        A Champion who applied technology to optimize human potential and capabilities – Justice Navin Sinha

Let’s go through the most important of the 865 judgments delivered by the Supreme Court in the year 2021. 

CONSTITUTION BENCH VERDICTS

Only 3 Constitution Bench judgments were delivered in the year 2021. Read all about them here.


THE MOST TALKED ABOUT CASES

Central Vista Project

The year began with the Supreme Court giving a go-ahead to the Central Vista Project in a 2:1 verdict. While the majority found itself compelled to wonder if it can dictate the government to desist from spending money on one project and instead use it for something else, Justice Khanna, in his dissenting opinion, observed that citizens have the right to know and participate in deliberation and decision making. [Rajiv Suri v. Delhi Development Authority,  2021 SCC OnLine SC 7]

Read: Supreme Court gives a go-ahead to Central Vista Project in a 2:1 verdict

Also read: Justice Khanna dissents in 2:1 verdict clearing the Central Vista Project

Farm Bill and Farmer Protest

While the repeal of the Farm laws came at the fag end of the year, the Supreme Court stayed the implementation of these Laws right in the beginning of the year after noticing that despite the peaceful protest, a few deaths had already taken place as Senior Citizens, youth and children were exposing themselves to not just the cold weather but also to COVID-19. [Rakesh Vaishanv v. Union of India,  (2021) 1 SCC 590]

Read: Supreme Court stays implementation of Farm Laws

Also read: Farmer Protests| Shashi Tharoor and 6 journalists not to be arrested for now over tweets on protester’s death during Republic Day Tractor Rally

Here’s a list of some more unmissable high-profile cases:


THE WAY FORWARD

The structures of our society have been created by males and for males. As a result, certain structures that may seem to be the “norm” and may appear to be harmless, are a reflection of the insidious patriarchal system.

Nitisha v. Union of India

2021 SCC OnLine SC 261

In 2021, the Supreme Court showed the way forward by giving many progressive orders/judgments. One of the top stories from the year 2021 was where the Court said that the administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch was arbitrary and irrational.

In another important ruling, before taking the oath as the Chief Justice of India, Justice NV Ramana noticed that the conception that housemakers do not “work” or that they do not add economic value to the household is a problematic idea that has persisted for many years and must be overcome. He added that the issue of fixing notional income for a homemaker, therefore, served extremely important functions.

Here is the list of all the judgments that take us as a nation a step forward:


SEDITION AND FREE SPEECH

By way of a series of judgments and orders on free speech, the Supreme made clear that, a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries.

In a big move, the Supreme Court also agreed to decide the constitutionality of Section 124A IPC after it was submitted before the Court that the decision of the Court in Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) SCR 769 required reconsideration. [Kishorechandra Wangkhemcha v. Union of India, (2021) 6 SCC 177]

Read everything here:


IBC – THE IMPERFECT LAW?

While stating that “there is nothing like a perfect law and as with all human institutions, there are bound to be imperfections”, the Supreme Court, in a 465-pages long judgment, upheld the validity of several provisions of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, albeit with directions given in exercise of powers under Article 142 of the Constitution of India. [Manish Kumar v. Union of India,  (2021) 5 SCC 1]

Read: IBC (Amendment) Act, 2020 upheld, albeit with directions

This judgment was followed by a series of judgments and orders on IBC. Check out the list below to read more:


RIGHTS OF PERSONS WITH DISABILITIES

“In their blooming and blossoming, we all bloom and blossom.”

Vikash Kumar v. Union Public Service Commission,

(2021) 5 SCC 370

This year witnessed many Supreme Court Judgments and orders on the Rights of Persons with Disabilities.

Check out this list to know more:


DEMOCRACY AND TRANSPERANCY

No-one is above law; this was the Supreme Court message as it stressed on importance of transparency by Political Parties and Government Institutions.

Read here:


THE CONSTITUTIONAL RIGHT TO PROPERTY

In a case where State took possession of surplus land in absence of surplus land, this Supreme Court’s verdict served as a reminder that right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law. [Bajranga v. State of Madhya Pradesh,  2021 SCC OnLine SC 27]

Read: Right to property is still a constitutional right under Article 300A of the Constitution


WHEN A CONSTITUTIONAL AMENDMENT WAS STRUCK DOWN

In a rare move, the Supreme Court held that the Constitution (97th Amendment) Act, 2011 which inter alia inserted Part IX-B was ultra vires the Constitution insofar it is concerned with the subject of Cooperative Societies for want of the requisite ratification under Article 368(2) proviso. [Union of India v. Rajendra N. Shah2021 SCC OnLine SC 474]

Read: Part IX-B of Constitution relating to cooperative societies unconstitutional for want of ratification by half of the States; Provisions relating to multi-State cooperative societies severable and valid: SC


THE “EVEN MORE DESERVING PARTIES”

Section 89 of CPC and Section 69-A of Tamil Nadu Court Fees and Suit Valuation Act, 1955 contemplate the refund of court fees in all methods of out-of-court dispute settlement between parties that the Court subsequently finds to have been legally arrived at and not just to those cases where the Court itself refers the parties to any of the alternative dispute settlement mechanisms listed in Section 89 of the CPC.

The Court observed that the parties agreeing to out-of-court settlement are “even more deserving”. [High Court of Madras v. MC Subramaniam(2021) 3 SCC 560]

Read: Parties agreeing to out-of-court settlement without judicial intervention under Section 89 CPC can’t be denied benefit of refund of court fees


BANKS AND BANKING

While the Constitution bench looked down upon the “mechanical” conversion of complaints under Section 138 NI Act from summary to summons trial and directed that the magistrates “must” record reasons, many other important decisions were given in 2021.

Read here: 


CONSUMER PROTECTION

The Supreme Court took cognizance of Government’s lackadaisical attitude towards consumer empowerment and observed that the ground reality is quite different as there is little endeavour to translate this Legislative intent into an administrative infrastructure with requisite facilities, members and staff to facilitate the decision on the consumer complaint.

Here are the important rulings on Consumer Protection that you cannot miss:


FROM “DEATH” TO “LIFE”

In 3 cases, the Supreme Court commuted the death sentences of the convicts to Life Imprisonment and in one case, 3 death row convicts were acquitted of all charges.

Read here:


MOTOR ACCIDENTS CLAIMS

Read how a one-stop online platform for all parties involved and Motor Vehicle Appellant Tribunals will help in achieving a hassle free disposal of Motor Vehicle Accident claims:


ARBITRATION

No year goes by without the Supreme Court delivering some important ruling on Arbitration and the year 2021 was no different.

Read the updates here:


A GUIDE FOR THE BENCH!

“The Magistrates are the first lines of defence for both the integrity of the criminal justice system, and the harassed and distraught litigant.”

Krishna Lal Chawla v. State of U.P.,

2021 SCC OnLine SC 191

In 2021, the Court also delivered a number of judgments on the issues of pendency of cases, judicial vacancies and overall standard to be followed by the members of bench while dealing with case.

Read all about these judgments here:


COVID-19

As the second wave of COVID-19 brought the nation to its knees, the Supreme Court did everything in it’s power to ensure that the loss is minimized.

Read all the important judgments here:

Case BriefsHigh Court Round UpHigh CourtsLegal RoundUp

From major rulings like Amazon v. Future Group to 22 Guidelines on Feeding of Stray Dogs, Delhi High Court delivered some very significant decisions and to get a run through of them check out this complete roundup of the year 2021.

Top Stories of the Year | Delhi High Court


Right to be Forgotten


Can a Court Order be removed from Online Platforms? HC to examine Right to Privacy and Right to Information of the Public and Maintenance of Transparency

Prathiba M. Singh, J., while citing the scope of Right to Privacy and Right to be Forgotten granted interim protection in light of the same in the present matter.

Read more…


Public place


Vehicle even if occupied by only one person would constitute a ‘public place’ and wearing of mask therein would be compulsory

A vehicle which is moving across the city, even if occupied at a given point in time by one person, would be a public place owing to the immediate risk of exposure to other persons under varying circumstances. Thus, a vehicle even if occupied by only one person would constitute a ‘public place’ and wearing of a mask therein, would be compulsory.

Read more…


Emergency Arbitrator


[Amazon v. Future Retail] From Emergency Arbitrator to Group of Companies Doctrine – Delhi HC covers all while restraining Future Group from proceeding further with Disputed transaction

In the notable ruling of Amazon v. Future Retail, J.R. Midha, J. of Delhi High Court considered three crucial questions:

♦ What is the legal status of an Emergency Arbitrator?

♦ Whether the Emergency Arbitrator misapplied the Group of Companies doctrine which applies only to proceedings under Section 8 of the Arbitration and Conciliation Act?

♦ Whether the interim order of Emergency Arbitrator is Nullity?

Read more…


Content Regulation


Content Regulation has been a contested issue across the world. Read HC’s stance & directions in Disha Ravi’s plea alleging leaking of her messages, etc. by Police

Prathiba M. Singh, J., while addressing the matter concerning the environmental activist, Disha Ravi, expressed that:

The print and electronic media plays a very important role in ensuring that there is no sensationalism and that they adhere to responsible journalism. Recent coverage by the media definitely shows that there is sensationalism.

Read more…


Rakesh Asthana’s Appointment


Rakesh Asthana’s appointment as Commissioner of Delhi Police challenged | Read Why Del HC upheld Centre’s decision

It ought to be kept in mind that Delhi, being the Capital of India, has a unique, special and specific requirement. It has witnessed several untoward incidences and extremely challenging law and order situations/riots/crimes, which have an international implication, which in the wisdom of the Central Government necessitated appointment of an experienced officer possessing diverse and multifarious experience of heading a large Para-Military Security Force apart from other factors.

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Feeding of Stray Dogs


Stray Dogs have right to food and citizens have right to feed | Indispensable 22 Guidelines on Feeding of Stray Dogs [Momentous Ruling]

J.R. Midha, J., in a very significant ruling issued guidelines with regard to the feeding of stray dogs and directions for their welfare.

Read more…



Payment of Full Wages


If Labour Court orders reinstatement and employer challenges the said order, is workman entitled to payment of full wages during pendency of challenge by employer? Del HC explains in consonance of Industrial Disputes Act

There is no provision for appeal provided in the Industrial Disputes Act against the decision of a labour court, which is in the form of an award.

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Divorce


Does failure to disclose mental disorder before marriage constitute perpetration of fraud so as to grant divorce? Del HC decides

“Marriage is not made of only happy memories and good times, and two people in a marriage have to face challenges and weather the storm together.”

Read more…


Maintenance


  • “Many a times wives sacrifice their career only for family” Can interim maintenance be denied if wife is capable of earning? Del HC elaborates

“…the fact that the wife is capable of earning is no ground to deny interim maintenance to her. Many a times wives sacrifice their career only for the family.”

Read more…

  • Can magazine covers be sufficient evidence to explain that wife who is a model can sustain herself? HC addresses while deciding a Maintenance matter

It is the duty of the husband to maintain his wife and to provide financial support to her and their children. A husband cannot avoid his obligation to maintain his wife and children except if any legally permissibly ground is contained in the statutes.

Read more…

  • While calculating husband’s income for granting maintenance to wife, can husband’s mother who receives her independent pension and rental income be counted as a dependant to be maintained by husband? HC explains

Suresh Kumar Kait, J., while addressing a criminal revision petition concerning a matrimonial dispute expressed that:

“..husband cannot wriggle out of his responsibilities to provide shelter to his wife and minor children.”

Read more…

  • Wife denied enhancement of maintenance due to being wealthier than husband

Suresh Kumar Kait, J., dismissed a petition seeking enhancement of maintenance granted to a wife.

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Settlement


  • Husband, his family harass wife for dowry leading to her committing suicide. Can settlement between accused and wife’s father be accepted? Court decides

Mukta Gupta, J., decided whether a settlement of parties wherein an accused and his family members who subjected his wife to harassment due to which the wife committed suicide can be accepted or not?

Read more…


Dishonour of Cheque


  • Is it mandatory for trial court to award interim compensation under S. 143-A NI Act on mere invocation thereof? Del HC decides whether S. 143-A is directory or mandatory?

Anu Malhotra, J., held that the provision of Section 143A of the NI Act, 1881 is directory in nature and not mandatory.

Read more…


Maintenance


  • Del HC discusses law on alternative jurisdictions for institution of application and execution of maintenance orders under S. 125 CrPC, directs fresh adjudication of execution petition

Court makes available the option to the wife to proceed before a Court for maintenance and its execution where either the husband is, or where either of the parties resides as well as the place where they used to reside.

Read more…


Unnatural Sexual Offences


‘To sexually violate innocent child within filial relationship descends on different path of depravity’: Del HC convicts father, friend under S. 377 IPC; emphasises on ingredients of ‘carnal intercourse against the order of nature’

The Division Bench of Siddharth Mridul and Anup Jairam Bambhani, JJ., while addressing a very unfortunate incident, involving sexual offences to the extent of rape and carnal intercourse with a child, expressed that,

“…to sexually violate an innocent child is in any case an abhorrent act; but, when that happens within the filial father-daughter relationship, of which purity of affection is a sine-qua-non, the act descends to a different depth of depravity.”

Read more…


Shared Household


  • Daughter-in-law claims right of residence in late husband’s mothers’ property under the head ‘Shared Household’: Mother-in-law approaches Del HC seeking eviction of daughter-in-law

Explaining the significance of ‘shared household’ Asha Menon, J., explained that where a residence is clearly a shared household, it would not bar the owner from claiming eviction against her daughter-in-law, if circumstances call for it.

Read more…

  • ‘Permanency’ as an element of ‘Shared Household’ concept under Domestic Violence Act: Can old-aged parents-in-law be restrained from selling their house in light of shared household consequences?

Suresh Kumar Kait, J., dealt with the provisions in regard to the concept of the shared household while referring to a very pertinent decision of the Supreme Court.

Read more…


Role of an Advocate


  • If an advocate has appeared for a party in judicial or quasi-judicial capacity or even as a mediator, Can Court injunct him from appearing to maintain stream of justice? Del HC expounds in clear worded decision

While expressing its opinion on the position of an advocate in lawC. Hari Shankar, J., expressed that,

There is, after all, a duty that we all owe, to ourselves, higher than that owed to the client, the brief, the opposite party, or even the court. The conscience of the Counsel should be the last sounding board.

Read more…

  • An advocate engaged by a client, can he also act as his power of attorney in the proceedings and verify pleadings?

Prathiba M. Singh, J., observed that an advocate who is engaged by a client has to play only one role, either of the advocate in the proceedings or the power of attorney holder.

Read more…


Trademark Registration


“And Then There Were None”: Agatha Christie’s most famous work in Del HC for trademark registration | Succinct Report

“…name being the title of the most well-known work of fiction written by Agatha Christie, it is also capable, prima facie, of creating an association between the name and the appellant, which is a company established by Agatha Christie herself. It can, therefore, legitimately be used in the context of services which the said company provides or intends to provide.”

Read more…


POCSO Act


‘Purpose of POCSO Act is to treat minors as a class by itself so that an attempt to abuse minor entails graver consequences’: Del HC stresses upon purpose of POCSO Act

While observing that, rape is an offence which not only violates the physical body of the survivor but is also capable of inflicting trauma on the mental psyche which can end up persisting for years, Subramonium Prasad, J., keeping in mind the nature of the offence, expressed that it inhabits a duty to consider such matters with utmost care.

Read more…


Role of a Family Judge


Family Judge is supposed to proactively engage with parties and act as facilitator, mediator: HC discussed role of and expectations from a Family Judge

Yashwant Varma, J., delved into the subject of the role of a Family Judge while deciding petitions which come before him/her. The High Court in the instant petition directed the Family Court to consider the petition filed for maintenance under Section 24 of the Hindu Marriage Act.

Read more…


Matrimonial Dispute


Matrimonial issues are generally confined to the bedroom and the matrimonial home, away from public eye and gaze: Will strict parameters of evidence still be followed? Read Del HC’s decision

While addressing a matrimonial dispute, Division bench of Vipin Sanghi and Jasmeet Singh, JJ., held that,

In cases where there are allegations of cruelty – specially mental cruelty such as Dowry Demand, violent abusive behaviour, starving the spouse of affection, resources and emotional support, there can be no set parameters that the court can follow.

Read more…


Contempt of Court


Husband stubbornly and obstinately refused to comply with the orders of the Court; No full disclosure of income

While addressing an issue of non-compliance of Court’s order with regard to paying maintenance to wife, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., held that,

The actions/ omissions of the Respondent in choosing to show complete disregard to the orders of the Court cannot be countenanced. If such action is permitted, it will lead to anarchy and the Rule of Law would become a casualty. The orders of the Courts would be taken lightly and breached at the own sweet will of the individual concerned.

Read more…


Kalkaji Temple


Del HC issues directions for removal of unauthorized shopkeepers, Sanitation facilities, Potable Drinking Water, Garbage Disposal, etc.

The shopkeepers or their families also cannot reside in the Mandir complex. The same is impermissible and is nothing but unauthorized encroachment and trespass into the Mandir’s premises.

Read more…


Right to demand Respect & Inter Cadre Transfers


Significance of ‘cogent reason’ while declining inter-cadre transfer

Addressing a grievance with regard to the denial of inter-cadre transfer Division Bench of Rajiv Shakdher and Talwant Singh, JJ., held that, denial with no cogent reasons impinges upon such person’s right to demand respect for her/his family life.

Read more…


Territorial Jurisdiction


  • Where can a petition under S. 125 CrPC be filed?

Subramonium Prasad, J., reiterated the law relating to the territorial jurisdiction of the court to entertain a petition under Section 125 CrPC.

Read more…

  •  Will the place mentioned on invoice decide the jurisdiction of a Court on filing a suit against it? Del HC explains

Section 20 clearly provides that a Court within whose local limits the cause of action, “wholly or in part”, arises, would have territorial jurisdiction to try the suit.

Read more…


Cruelty


  • Wife made serious criminal allegations against husband and his parents but couldn’t prove: Would this amount to cruelty against husband to grant divorce?

While addressing a matrimonial matter wherein a wife caused cruelty to husband, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., expressed that,

For a man to see his parents to be taken into custody and being incarcerated even for a single day would have caused immense and untold pain and agony to him.

Read more…

  • Can allegations of demand of dowry and alcohol consumption made by wife amount to ‘cruelty’?

Expressing that, allegations made by the wife with regard to the husband demanding dowry and indulging in alcohol consumption, do not tantamount to making serious allegations impinging on the character of the husband, to such an extent, that they would be the cause of immense mental agony and cruelty, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., dismissed the petition.

Read more…


INX Media Case


Can accused be allowed to inspect documents kept in “malkhana”?

Mukta Gupta, J., expressed that,

“…while passing an order of inspection of unrelied upon documents, the Court is bound to strike a balance between the competing interest of ensuring a fair trial to the accused as also maintaining the sanctity of further investigation, in case further investigation is to be carried on.”

Read more…


Arbitration


  • What happens if parties fail to agree on arbitrator within 30 days from receipt of request by one party?

Sanjeev Narula, J., allowed an arbitration petition by appointing a sole arbitrator to adjudicate the disputes between the contesting parties.

Read more…

  • What is the remedy against an order allowing application under S. 8 of Arbitration Act, where existence of arbitration clause is not disputed?

Amit Bansal, J., dismissed a petition challenging the order passed by the lower court whereby respondent’s application under Section 8 of Arbitration and Conciliation Act, 1996 was admitted.

Read more…

  • ICADR Rules regarding procedure come into play only after arbitration commences before appropriate jurisdiction of law: Del HC summarises law on seat, venue of arbitration

While observing that the role of ICADR Rules shall come into play with regard to the procedure to be followed, only after the arbitration commences before the appropriate jurisdiction of law, Suresh Kumar Kait, J., reiterated the observation of BGS SGS SOMA JV v. NHPC(2020) 4 SCC 234, wherein it was stated that if the arbitration agreement provides that arbitration proceedings “shall be held” at a particular venue, then that indicates arbitration proceedings would be anchored at such venue, and therefore, the choice of venue is also a choice of the seat of arbitration. 

Read more…

  • Can a party unilaterally appoint an Arbitrator of their choice? Read on

Suresh Kumar Kait, J., reiterated that no party could be permitted to unilaterally appoint an Arbitrator, as the same would defeat the purpose of unbiased adjudication of the dispute between the parties.

 Read more…

  • Whether once a bench of SC has doubted correctness of an earlier bench of co-equal strength, and referred the issue to a larger bench, Courts lower in hierarchy should continue to follow earlier decision – Is it debatable?

The question of whether, once a bench of the Supreme Court has doubted the correctness of an earlier bench of co-equal strength, and referred the issue to a larger bench, Courts lower in hierarchy should continue to follow the earlier decision, appears to be debatable.

Read more…


Assault by Policemen


Law does not permit people to be beaten-up in police custody or during interrogation

While addressing a very unfortunate incident of police assault, Najmi Waziri, J., expressed that

Let no one have to repeat the tragic last words like George Perry Floyd, Jr.: “I can’t breathe”.

Read more…


Law on Offences against property


While committing the act of robbery, if revolver is brandished, would that be an offence under S. 397 IPC?

Subramonium Prasad, J., addressed a very pertinent question of whether brandishing a revolver during the act of robbery be covered under Section 397 of Penal Code, 1860.

Read more…


Dissolution of Marriage


Materialistic attitude of husband considering wife as cash cow: Is it a ground to dissolve the marriage?

The Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., noted in a matrimonial matter that the wife was being viewed as a cash cow and the husband became interested in her only after she got a job with Delhi Police.

Read more…


Virtual Currency


Dealing in virtual currency and duping people of Rs 2.5 Crores: Can bail be granted for such alleged economic offences? Read full report to know 

Getting indulged in Virtual Currencies even after receiving public notices not to deal in the same and further duping several people, the accused applied for bail. Anu Malhotra, J., denied application of the accused concerned by expressing that,

“…alleged commission of economic offences corrode the fabric of democracy and were committed with total disregard to the rights and interest of the nation and were committed by breach of trust and faith and were against the national economy and national interest, whereby a large number of innocent investors had been duped of their hard-earned money…” 

Read more here…


POSH Act


Jurisdiction of Internal Complaints Committee and Local Committee: Detailed account of Delhi HC decision revolving around case of aggrieved women herself terminated from services

“…instead of providing assistance to the aggrieved woman in prosecuting her complaint of sexual harassment, the Akademi has been opposing her tooth and nail and has even terminated her services pending the inquiry before the Local Committee.”

Read more…


 Bail


  •  Father-in-Law accused of raping own Daughter-in-Law: Read whether Del HC grants bail or not

Rape is not merely a physical assault; it is often destructive of the whole personality of the survivor.

Read more…

  • Bail granted to a young mother accused in murder of her tutor with whom she had illicit relationship

Rajnish Bhatnagar, J. granted bail to a young mother of two minor children, who was booked in connection with the murder of her tutor with whom she had an illicit relationship.

Read more…

  • Wife commits suicide after speaking to husband on mobile phone, husband suspicioned to have instigated wife| Read whether Del HC grants bail to husband

Mukta Gupta, J., decided a bail matter wherein the husband suspicioned to have instigated the wife to commit suicide.

 Read more here: https://bit.ly/3ysAXtz


Appellate Court


 Reasons, an essential feature of a judgment? Is there a link covered under reasons in Judgment? Read on

Duty of the Appellate Court is to see whether the Metropolitan Magistrate had considered the claim of the petitioner on merits and what are the reasons given by the Metropolitan Magistrate to reject the claim.

 Read more…


Testamentary Proceedings


 Prior to proving a Will, its execution is to be proved first by an attesting witness? Del HC explains

Granting that the CPC could be made applicable to the contested testamentary proceedings, as in the present case, it still leaves the court with the discretion to allow the party to be examined subsequent to the examination of his own witnesses

Read more…


Article 12 of the Constitution of India


World Bank a Government Agency or not? Del HC decides

World Bank or any of the other international bodies, which have proceeded to debar the petitioner, cannot be considered as a “Government Agency”. This is for the reason that none of the international bodies are bound by any directions issued by the Government of India.

Read more…


Maintenance


  • Husband is bound to compensate wife who, after spending on children, may hardly be left with anything to maintain herself

In households wherein the women are working and are earning sufficiently to maintain themselves, it does not automatically mean that the husband is absolved of his responsibility to provide sustenance for his children.

Read more…

  • Can wife claim maintenance under S. 125 CrPC where she as well as husband had spouses living at the time of alleged marriage?

A second wife whose marriage is void on account of survival of the first marriage would not be a legally wedded wife, and therefore would not be entitled to maintenance under this provision.

Read more…

  • Maintenance can be claimed under DV Act even if already granted under S. 125 CrPC: Del HC reiterates

Amit Bansal, J., reversed the order of the trial court as it dismissed the application filed by the petitioner under Section 26 of the Protection of Women from Domestic Violence Act only on the basis that it had been filed towards execution of maintenance already granted.

Read more…


Arbitral Award


  • Del HC’s decision focusing on methodology adopted by Arbitral Tribunal for calculating arbitral award on finding error in Surveyor’s report

“Mere erroneous application of the law, or appreciation of evidence, does not call for interference of the award on the ground of patent illegality. The Court cannot set aside the award by reappreciating the evidence, which is taken into consideration, by an Arbitral Tribunal”

Read more…

Court’s interference in regard to arbitral awards: Limited or Not? Del HC explains with the view taken by SC decision

“….so long as the view taken by an arbitrator, is a possible view based on facts, it is irrelevant whether this Court would or would not have taken the same view on the merits of the matter, hence arbitral award was required to be upheld.”

Read more…


Physical Presence v. Video Conference


Physical Presence for registration of marriage under Delhi (Compulsory Registration of Marriage) Order, 2014, a necessity? Delhi HC decides

“In a little over half a decade, since the Registration Order was notified, the universe has undergone a sea change but the Registering Authority, while exercising its power and jurisdiction under the Registration Order is refusing to recognize the reality that with the technology as is available today, web portals and Video Conferencing have become almost the norm.”

 Read more…


Judicial Member


Whether duration of practice at the Bar be counted along with qualifying period put in by claimant as Judicial Member for calculating pension? Del HC decides

Kameswar Rao, J., refuses to grant relief to the claimant who urged to include 10 years of practice as an advocate for the purpose of calculating pension in addition to qualifying service as Judicial Member of Railway Claims Tribunal.

Read more…


Dying Declaration


 Del HC on ‘Dying Declaration’ of a woman set ablaze by the husband: Conviction of Murder upheld

While upholding the decision of Trial Court, Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., reiterated that dying declaration of a person by itself, maybe sufficient to find the accused guilty and if the statement is reliable and credible, it does not even need corroboration.

Read more…


Trademark Infringement


Will the rights of a prior user override those of a subsequent user even though it had been accorded registration of its trademark? All-Inclusive Report on Trademark Infringement of ‘Rajdhani’

The rights of a prior user will normally override those of the subsequent user even though it had been accorded registration of its trademark.

Read more…


Properties Mortgaged to Banks


If Banks have to survive, borrowers must exist and not mere borrowers but productive borrowers: Del HC on whether borrowers have protection against arbitrary disposal of properties mortgaged to banks at low prices? [In-depth Report]

The Banks seek collaterals and security to prevent losses to themselves. It is, but reasonable, to expect the Banks such as the respondent, to also respect the right of the borrowers to maximize their profits from the sale of collaterals/securities by the banks.

Read more…


Advocates Representation in Labour Courts


Representation by Advocates before Labour Courts: Del HC reiterates there is no absolute bar

Judicial decisions on the question of consent, including implied consent, have primarily turned on the facts of each case.

Read more… 


Indian Army


Under Indian Army, can mere acceptance of a resignation create a vacancy for being filled up from cadet in waiting? Read what Del HC says

“Mere acceptance of resignation may not be sufficient to consider creation of a vacancy for being filled up from the cadet in the waiting.”

Read more…


Eviction Order


What are the essential ingredients that a landlord is required to show for purpose of getting an eviction order for bonafide needs? Del HC elaborates

Jayant Nath, J., while addressing a matter noted the essential ingredients that a landlord is required to show for the purpose of getting an eviction order for bonafide needs.

Read more…


Custodial Violence


  • Remedial action to be taken so that unscrupulous officers at Jail do not take advantage of knowledge of non-working of CCTVs & get away by doing any illegal act

Walls of prison, howsoever high they may be, the foundation of a prison is laid on the Rule of Law ensuring the rights to its inmates enshrined in the Constitution of India.

 Read more…


Voluntary Retirement


Under Pension Rules, if a Government Servant seeks voluntary retirement, he must have completed service of 20 years and may serve notice of 3 months

Government Servant at any time, after he has completed 20 years of qualifying service, may give a notice of 3 months to retire from the service.

Read more…


Testimony of Child victim


Can testimony of child victim be trustworthy? HC reiterates law on finding child witness competent

 Under Section 29 of the POCSO Act, there is also a presumption regarding the guilt of an accused. As a result, the prosecution has to lay down and prove the fundamental facts regarding the guilt of the accused but the burden of proof on the prosecution is not of ‘beyond reasonable doubt’. Once the facts are proved, the onus is on the accused to lead evidence to rebut the presumption raised under Section 29 of the POCSO Act.

Read more…


Settlement


Person accused under S. 307 IPC if entered into a compromise with victim, can Court quash criminal proceedings in light of settlement? Delhi HC unravels

 “…an offence under Section 307 IPC will fall under the category of heinous offence, and therefore, has to be treated as a crime against the society and not against the individual alone and the proceedings under Section 307 IPC cannot be quashed only on the ground that the parties have resolved the entire disputes amongst themselves.”

Read more…


Compulsory Retirement


On what basis is an employee compulsory retired? An account of Compulsory Retired, IRS Officer | Read Del HC’s opinion stressing on ‘compulsory retirement, a subjective satisfaction’

 Fundamental source of compulsorily retiring an employee of the Government is derived from “Doctrine of Pleasure” which springs from Article 310 of the Constitution of India.

Read more…


 Negotiable Instruments Act


Does a decree automatically follows when a Metropolitan Magistrate take cognizance of an offence under S. 138 NI Act? Read on

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Income tax Act


Issuance of prior show cause notice and draft assessment order under S. 144B (7) of Income Tax Act: Is it a mandatory condition before issuing final assessment order? HC answers

 High Court opined that Section 144B (7) of the Income Tax Act, 1961 mandatorily provides for issuance of a prior show cause notice and draft assessment order before issuing the final assessment order.

Read more…


Trade Marks Act


  •  Whether S. 124 of Trade Marks Act provide for stay of action against passing off? Read on

 There is no such occasion arising in a suit for passing off. It is only when clever drafting discloses the intent of the plaintiff to get over the statutory bar, being aware of the rectification proceedings commenced against the trade mark that it claims is exclusively it’s own.

Read more…

  • Determination of territorial jurisdiction of Court in matters relating to trademark infringement: HC discusses

Considering the nature of business, the prior relationship of the parties, and the business format of establishing franchisees, it cannot be assumed that the Plaintiffs’ allegations are mis-founded or could be construed as false, in absence of any documentary proof.

Read more…

  •  Del HC grants interim injunction in favour of DPS Society against Infringement of trademark and crest logo by Delhi Public International School

“Besides, considering that parties are in the field of education, deliberate adoption by the Defendants of impugned trade marks and logo that are deceptively similar and/or identical to the Plaintiff’s registered trade marks/names and logos can cause confusion in the minds of the parents, prospective students and staff desirous of securing admission or availing services, seeing the advertisements, promotional material, admission forms, boards/ hoardings, etc.”

 Read more…


Anti-Profiteering Case


 Proceedings against Subway Systems (India) dropped in anti-profiteering case against franchisee

Bench opined that it is settled law that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India, the applicant should ordinarily be one who has a personal or individual right in the subject matter of the application.

Read more…


Employer’s Negligence


Due to employer’s negligence, an employee suffered 100% disability | Read how Del HC emphasises on principle of res ipsa loquitur and strict liability to pronounce decision

Anup Jairam Bhambhani, J., emphasizing the principle of res ipsa loquitur and placing a detailed explanation on the same granted just and fair compensation to a person who was 100% disabled due to an accident at his place of work. 

Read more…


Domestic Violence Act


Provisions of DV Act cannot be used as a ploy by son, to either claim a right in his father’s property or continue to retain possession of father’s property, on strength of his wife’s right of residence: Del HC

 “…all cases of family disputes cannot be characterised as cases under the DV Act.”

Read more…


Abetment of Suicide


  •  Issuing a legal notice and filing a complaint case against someone, would that amount to abetment of suicide? Del HC deciphers

 Abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing.

Read more…


Bank Guarantee


Bank Guarantee: Can these be encashed during their validity period? Read Del HC’s opinion on furnishing of bank guarantees

There is no judicial finding that a Bank Guarantee cannot be encashed during its validity.

 Read more… 


Chief Minister’s Advocates Welfare Scheme


  • CM Advocates Welfare Scheme: Only for the Advocates enrolled with Voter ID of Delhi? HC enumerates significance of Place of Practice v. Place of Residence

Prathiba M. Singh, J., remarked that,

Insurance for lawyers has been an aspiration for several years.

Read more…

  • Whether a Chief Minister’s promise to its citizens is enforceable? Succinct report in light of Delhi CM’s ‘Promise’ | Highlight on Doctrines of Promissory Estoppel & Legitimate Expectations

Prathiba M. Singh, J., while quoting that ‘Promises are meant to be broken’ stated that the law has evolved the doctrines of legitimate expectation and promissory estoppel to ensure that promises made by the Government, its officials and other authorities are not broken and are, in fact, judicially enforceable, subject to certain conditions.

Read more…


5G Technology


Colossal Harm by rolling out of 5G Technology: Delhi HC dismisses suit for defective plaint, filed for gaining publicity; Imposes costs of Rs 20 lakhs

J.R. Midha, J., dismisses the suit filed regarding the rollout of 5G technology on observing that the suit was filed with the motive of gaining publicity and also the Court reasoned out various defects in the plaint.

Read more…


Delhi Riots


  • Crucial aspects of ‘Terrorist Act’ and Right to Protest | Everything about Asif Iqbal Bail Order

“Terrorist Act” cannot casually apply to conventional offences; Foundations of nation stand on surer footing that to be shaken by tribe of college students

Read more…

  • Devangana & Natasha v. State | Pivotal Findings in State against Devangana Kalita & Natasha Narwal

The Division Bench of Siddharth Mridul and Anup Jairam Bhambhani, JJ., granted regular bail to activist Devangana Kalita and Natasha Narwal in the Delhi-Riots case.

Read more…


COVID-19


  • “I can’t breathe”; HC calls oxygen shortage a ‘George Floyd moment for the citizens’; holds imposition of IGST on oxygen concentrators imported by individuals, unconstitutional

The Division Bench of Rajiv Shakdher and Talwant Singh, JJ., disposed of the petition which was filed in order to decide the constitutionality of imposition of IGST on the imported oxygen concentrators. The Court in its prologue said,

“This is a George Floyd moment for the citizens of this country. The refrain is ―I can’t breathe‖, albeit, in a somewhat different context and setting; although in circumstances, some would say, vastly more horrifying and ghastlier. Chased and riven by the merciless novel Coronavirus, the citizenry has been driven to desperation and despair.”

Read more…


Compensation under Motor Vehicles Act


  • Whether it would be fair to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age? HC explains

J.R. Midha, J., while addressing a motor accidents claim application decided on the issue whether it would be fair to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age?

Read more…

High Court Round UpLegal RoundUp

This year the Bombay High Court dealt with several heart-wrenching matters to some very pertinent and significant decisions for the society at large. Let’s sail into these 124 Judgments carefully selected and briefed in the year 2021.

These reports are categorised into over 90+ topics.


Transgender’s Right to Contest Election


Can a transgender contest election from a seat reserved for women candidates? HC espouses transgender people’s “Right to Self-Perceived Gender Identity”

 A Vacation Bench of Bombay High Court allowed the petitioner, a transgender person, to contest the panchayat elections from a seat reserved for women candidates.

Read more…


Sexual Assault


  • “Opening zip of pants”, Does it NOT “fit in the definition of sexual assault” under POCSO Act? Bom HC says so

Bombay High Court observed that acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’ in Court’s opinion does not fit in the definition of ‘sexual assault’.

Read more…

  • [Reversed] Bombay HC on Sexual Assault | Would ‘pressing of breast’ and ‘attempt to remove salwar’ of a child fall under S. 7 and punishable under S. 8 of POCSO Act?

Bombay High Court had expressed that since there was no direct physical contact i.e. skin to skin with sexual intent without penetration, they said would not amount to ‘sexual assault’.

UPDATE: This Judgment of the Bombay High Court has now been reversed by a 3-Judge Bench of the Supreme Court of India after the matter was mentioned by the Attorney General for India and appeals were filed by the State of Maharashtra and the National Commission for Women.

Read more…


Media Trial


Bombay HC on Media Reporting, Obligation of Investigators, Media Trial, Freedom of Press and the proverbial ‘Lakshman Rekha’ for Media Houses || Read this detailed report unravelling several significant aspects cropped in light of Sushant Singh Case

“Any report of the press/media, having the propensity of tilting the balance against fair and impartial “administration of justice”, could make a mockery of the justice delivery system rendering ‘truth’ a casualty. “

 Read more…


 Judicial Over-Reach


If Judges interfere in academic matters or step into other Organs of State, would that amount to Judicial Over-Reach? Court addresses

Bombay High Court expressed that “As Judge, we primarily don the hat of an adjudicator.”

 Read more…


Unfair Labour Practice


Classic case of unfair labour practice: Workmen not given permanency on being engaged in a rotational pattern || Pool of Temporaries, Termination, Perennial Work & more

 Clear recipe of an unfair labour practice, notorious in the industry, of employing ‘badlis’, casuals or temporaries and continuing them as such for years, with the object of depriving them of the status and privileges of permanent employees.

Read more…


Cruelty


Husband making wild allegations that wife, her relatives, secured false certificates to get employment. Does husband’s conduct amount to ‘Mental Cruelty’ to wife? HC explains while upholding Family Court’s decision

 “…making of unfounded allegations against the spouse or his/her relatives in the pleadings or making complaints with a view to affect the job of the spouse amounts to causing mental cruelty to the said spouse.”

 Read more…


Abetment to Suicide


Child commits suicide, mentions drinking habit of father in suicide note. Can the father be held liable for abetment to suicide? Law explained

Lower Court’s Judge swayed away with the fact that the deceased boy committed suicide for an admitted position that the appellant was a drunkard.

Read more…


Well-Known Mark || IPR


ISKCON, Infringement of well-known mark: Read why Justice G.S. Patel deferred grant of discretionary relief in view of past history which may materially affect the action

 “The very least a Court of equity expects when asked to grant discretionary relief is complete and honest disclosure of the relevant facts.”

 Read more…


Homicidal Death


Can a person be held liable under S. 302 IPC on the basis of ‘last seen’ theory and not being able to offer sufficient explanation? Significance of ‘last seen’ theory in establishing homicidal nature of death discussed

 Where the prosecution succeeds in discharging its primary burden and brings evidence on record which indicates that the facts, thereby proved, rest within the special knowledge of the accused, Section 106 of the Evidence Act comes into play.

Suspicion, however strong, cannot take the place of proof.

 Read more… 


Sushant Singh Rajput Case


Power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases: FIR against late actor Sushant Singh’s Sister not to be quashed

The Division Bench of Bombay High Court found prima facie case against Late actor Sushant Singh Rajput’s sister Priyanka Singh.

 Read more…


Maintenance to Widowed Daughter-in-Law


Father-in-law denies maintenance to widowed daughter-in-law and her children. Will he be obligated to maintain them if late son had a share in ancestral property? HC Decodes

Sections 19 and 22 of the Act create first obligation to maintain a widowed daughter-in- law on the father-in-law. The obligation only shifts on the father of the widow, if the father-in-law prove his inability to maintain her.

Read more…


 Fraud by Wife?


Husband alleged that wife hid her actual date of birth & since he intended to marry a ‘Mangalik Yog’ girl, fraud was played upon him. Here’s how HC solved the matter

Read this significant matter revolving around ‘fraud’ by the Bombay High Court.

Read more…


 Section 417 of Penal Code, 1860


  • Whether absence of ‘dishonest concealment of fact’ exempt a person from being punished under S. 417 IPC? Read on

“…here was no ‘promise to marry’ nor intentional deception by misrepresentation or deceitfulness practised before establishing physical relationship with prosecutrix.”

Read more…

  • If two people have consensual sexual relationship but boy later refuses to marry, Will that attract offence of cheating under S. 417 IPC? Bom HC explains

Evidence on record revealed that the sexual relationship between the prosecutrix and the accused was consensual.

Read more…


 Legal Heirs | Property


Relinquishment of self-acquired properties of a deceased by legal heirs. Will such release enure to benefit of all other legal heirs? Court explains

Relinquishment of properties inherited by the legal heirs of the person whose properties were self-acquired properties would not enure for the benefit of all the legal heirs of the said deceased but would enure only for those persons in whose favour such deed of relinquishment/release was executed.

Read more…


Defamation


Can a person’s image be used for a commercial purpose, without his/her express written consent? Justice G.S. Patel elaborates directing Amazon Prime to take down the telecast of a movie using a person’s private image

Simply using another’s image, and most especially a private image, without consent is prima facie impermissible, unlawful and entirely illegal. In a given case, it may also be defamatory, depending on the type of use.

Read more…


 Suicide


  • Woman commits suicide along with her infant daughter within 7 years of marriage. Can husband of deceased be held guilty for offences under Ss. 498-A, 304-B read with 34 IPC? Mere suspicion of Cruelty & Harassment is enough?

The Division Bench of Bombay High Court, upheld the decision of Additional Sessions Judge wherein a woman committed suicide along with her infant daughter within 7 years of marriage and allegations were placed that she committed suicide on the pretext of cruelty and harassment, but same could not be proved.

Read more…

  • Woman commits suicide due to alleged illicit relationship of husband; mother registers case but seeks to withdraw stating she had lodged report under ‘rage’ | Bom HC Demystifies

The Division Bench of M.S. Sonal and Pushpa V. Ganediwala, JJ., quashed the charges of abetment of suicide and other offences under IPC against the applicants, on finding that no purpose would be served in continuing criminal proceedings against them.

Read more…


 Agreement


Can a development agreement signed between Chairman of Society and one of the Managing Committee members be binding upon non-signatory? Court discusses while ordering redevelopment of building

This is the usual story of a solitary member of a society obstructing the redevelopment of the society building.

It does not matter to this member that the building is in a dilapidated condition unfit for human habitation.

Read more…


 Copyright Registration


Does Copyright Act requires mandatory registration to seek protection under the Act? Justice G.S. Patel explains

“Copyright Act gives a range of rights and privileges to the first owner of copyright without requiring prior registration.”

Read more…


 Daughter approaches Family Court on behalf of father’s Marriage


Can a daughter approach Family Court on behalf of her father to challenge validity of his marriage? OR only parties to marriage can challenge validity? Read in light of S. 7 of Family Courts Act

Bombay High Court addressed a concern wherein a daughter filed a petition seeking a declaration of her father’s marriage to be null and void on knowing that the lady concealed the fact of her being married and not divorced from her earlier marriage.

Read more…


Co-operative Societies


Board of Directors of Co-operative Bank: Power of Registrar of Co-operative Societies under Maharashtra Co-operative Societies Act & RBI’s role || Detailed Report

“The Registrar, Co-operative Societies has not acted as a rubber stamp of the RBI.”

Read more…


COVID-19


  • Remdesivir and Tocilizumab injections to be regulated; Collector Nagpur to examine regarding feasibility of making beds available at Mankapur Stadium, Nagpur and Nagpur Nagrik Sahakari Rugnalaya

Bombay High Court issued directions till the regulation of Remdesivir and Tocilizumab injections.

Read more…

  • Reports of RT-PCR Tests to be made available on Whatsapp; COVID positive patients reports to be uploaded within 24 hours on ICMR portal

The Division Bench of Bombay High Court, directed that reports for RT PCR test shall be made available to patients on WhatsApp.

Read more…

  • Rise of COVID-19 Cases in State of Maharashtra: State to file information on measures to de-congest jails, to control spread of virus & status of COVID cases

“…reports show a sudden rise of the COVID-19 cases in the State prisons, indicating a need for the Court’s intervention to revisit the measures.”

Read more…

  • MoH communication reducing oxygen supply to Maharashtra is “bolt from the blue”: Court directs PRAX AIR to keep supplying 110 MT oxygen per day

“…something for the present is required to be done, if we have to perform our duty of preservation of precious human life arising from Article 21 of the Constitution of India.”

Read more…

  • Deficient Remdesivir Drug and Oxygen to COVID-19 Patients: HC directs to hold meeting with manufacturers and procure

Bombay High Court addressed the suo motu public interest litigation raising concern with regard to a deficient supply of Remdesivir Drug and Oxygen Supply.

Read more…

  • “Elderly citizens being asked to choose between devil and the deep sea”: HC not impressed with Centre’s reply on petition for door-to-door vaccination for elderly and disabled citizens

If indeed, vaccination of elderly citizens by adopting a door-to-door vaccination policy is being avoided because such elderly citizens are aged and suffer from comorbidities, we regretfully record that the elderly citizens are literally being asked to choose between the devil and the deep sea.

Read more…

  • Modern ventilators, Doctors are not properly trained to operate”; HC raps centre for blame game on PM Cares Ventilators

The Division Bench of Bombay High Court, addressed the issue relating to supply of dysfunctional ventilators through PM Cares Fund. The Bench slammed the Center for contending that the ventilators were in working condition and the deficiencies were with the hospital staffs, the Bench remarked,

“We would have appreciated had the affiant avoided entering into a blame game and instead shown sensitivity towards the patients, it being the paramount object of the welfare State to take care of the health of its citizens.”

Read more…

  • 75% ventilators supplied through PM Cares Fund found dysfunctional; HC seeks response from Center

Bombay High Court addressed the issue of dysfunctional ventilators supplied through PM Cares Fund. The Bench remarked,

“We find the above situation as regards the dysfunctional ventilators supplied through the PM Cares Fund, to be quite serious. We, therefore, call upon the learned ASGI to state, as to what action would the Union of India initiate in these circumstances.”

Read more…

  • “Take immediate actions against e-commerce websites for supplying non-essential items”, HC directs Maharashtra government

The Division Bench of Bombay High Court asked State Government to actions against the dealers and e-commerce websites for supplying various nonessential items in violation of government order.

Read more…

  • Corporate Social Responsibility, Mucormycosis and shortage of drugs, HC urges Central Drug Controller to increase production capacity and reduce prices of drugs

The Division Bench addressed the issue of Mucormycosis or Black Fungus disease and reluctance of public and private sector companies to abide by their corporate social responsibility. The Bench stated,

“When these corporate entities are enjoined with a statutory duty (See section 135 of the Companies Act, 2013), it is expected that these companies discharge their duties whenever they are called upon to do so and in our opinion, there could have been no better opportunity than the present time and present cause to discharge such duty.”

Read more…

  • “Are you prepared to introduce door to door vaccination for senior citizens?” HC sanctions door to door vaccination after noticing center’s disinclination to formulate a universal scheme

Read more…

  • [Remdesivir shortage] “How such drug in such short supply, is available to Politicians and Actors for distribution to public at large?” HC pulls up state over inadequate crisis management

“The allotment of Remdesivir appears to have been made on the basis of ‘functional bed capacity’ of each of the hospitals. Such allocation whether would cater to the actual need of the patients has not been explained to us.”

Read more…

  • Do not insist on production of Aadhar Cards by correctional home inmates for Vaccination, HC directs State

The Division Bench of Bombay High Court. had addressed a suo motu case on the issue of alarming rise in COVID-19 cases in prisons of the State of Maharashtra.

Read more…

  • “Article 21 casts corresponding duty on State to ensure no life is extinguished due to unavailability of oxygen”; HC tells State

“We have long passed the stage of determining whether patients are suffering from the lack of oxygen or not. The material placed before us establishes that patients are indeed suffering and even in some cases succumbing for want of the supply of oxygen, in the State of Goa.”

Read more…

  • Allow entry in Goa for medical emergency even without Covid negative certificate; HC modifies its earlier order. Deprecates DMs for amending Court orders on their own

“…the magistrates are bound by Court’s order and they cannot modify the same on their own.”

Read more…

  • Biovet Pvt. Ltd. allowed to use idle vaccine manufacturing unit for Covaxin production; directs Maharashtra to cooperate

Read more…

  • “Not a case of sealing the borders”; HC tells State to ensure person entering in Goa carry a Covid-19 “negative” certificate

“This is not a case of sealing the borders. This is only a case where steps are taken to ensure that the persons who are entering into Goa are not already tested as COVID positive so that they do not contribute to the spread of the epidemic and at the same time are cared for better in their own State.”

Read more…

  • CSR, Mucormycosis and Deficit Drug Supply; HC reminds Center, “the situation is war like”

“This is a sort of war like situation for Maharashtra and in particular city of Nagpur, which calls for rapid response and mighty one. We hope that these entreaties would be positively answered by the Central Government and if not, further loss of lives of a few more patients, unfortunate as it may be, may be a fait accompli.”

Read more…

  • [PM Cares Ventilators] “Will not permit experimentation of faulty ventilators”; HC warns Union Government

“We would not permit experimentation of the ventilators which have undergone major repairs, in treating the patients, since this would be causing a risk/health hazard to the patients and unfortunately, the use of such ventilators may cause loss of life.”

Read more…

  • No prohibition by Center on door-to-door vaccination; HC gives Maharashtra one week time to sanction door to door vaccination

It clearly appears to us that there is no categorical prohibition imposed by the Central Government for the States to undertake a door to door vaccination programme, for the elderly and disabled citizens…”

Read more…


COVID-19 and Article 25


Religious places of worship closed; Prayer offering in mosque during Ramzaan not allowed in wake of COVID-19: Court discusses scope of Art. 25

Bench while expressing that Article 25 of the Constitution of India permits all persons equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion, the same is subject to public order, morality and health, held that:

such congregation which is apprehended by the State, if such permission is granted, it is likely that it would seriously affect the public order and health. If such permission is granted, it would violate the condition imposed under Article 25 of the Constitution of India.

Read more…


 COVID Vaccine and Intellectual Property Rights


“Serum Institute coined the term ‘Covishield’, took substantial steps towards development and manufacture”: Court finds no merit in Cutis Biotech’s passing off action

“…foundation of passing off action is the existence of goodwill. Further as to who conceived and adopted the mark earlier is also relevant.”

Read more…


 CBI Investigation


Anil Deshmukh ‘prima facie’ committed cognizable offence, but No immediate FIR by CBI. Credibility of State machinery at stake: HC directs CBI to conclude preliminary investigation preferably within 15 days

“It is said that none can see time, but many a time, time makes us see many things hitherto before unseen. So true.”

Read more…


 Circumstantial Evidence


Circumstantial Evidence. Wife found dead, can husband be convicted on the basis of him being last seen with wife? Do Police Officers need to substantiate their stand on basis of documents? Read on

Law does not require a particular number of circumstance so as to establish the chain. It altogether depends upon the nature of the transaction.

Read more…


 Criminal liability


Can administrator of WhatsApp group be held criminally liable for objectionable posts of a group member? HC answers

Common intention cannot be established in the case of WhatsApp service user merely acting as a group administrator.

Read more…


            Minor’s Consent


‘Consent’ of minor for sexual act who conceived and delivered a baby will be immaterial

“…the victim was minor at the time of alleged incident and during that period she conceived and delivered a baby. Her consent for the sexual act was immaterial.”

Read more…


 Minor’s property


Minor’s property fraudulently transferred. Can application for such declaration and order for recovery lie in Guardianship Petition? HC elucidates

…what lies before a court, other than a family court under Section 7 of the Family Courts Act, is an application for appointment of guardian of the property of a minor or an application for permission to deal with such property. It is only these applications which are made by means of a guardianship or a miscellaneous petition before this court.

Read more…


 Rape and conviction


Father rapes minor daughter, but conviction under S. 376(2) (i) IPC set aside. Why? Read Court’s opinion in light of S. 164 CrPC || Detailed Report

“…relationship in between brother and sister, relationship in between mother and son, relationship in between father and daughter and so on were considered as sacrosanct. However, due to passage of time, these relationships have no more remained sacrosanct and there are various instances of overstepping the sacrosanct relationship by the near relationship.”

Read more…


 Domestic Violence


Daughter caught in crossfire between parents; Accused under DV Act by mother. HC decides whether allegations inherently probable? [Exhaustive Report]

The intent of the DV Act is to ensure that a woman who faces abuse at the hands of her husband or a male partner has an avenue to raise her grievance against such person and also any relative of such person. Ordinarily, this would include the relatives on the side of the husband or male partner.

Read more…


 Quota


Explainer | Bombay HC at Goa on Quota in Municipal Polls [Detailed Report]

“Democratically elected nations burgeon on absolutely free and impartial elections and India being a colossal democracy demands such a process.”

Read more…


Hate Speech


“Extreme or harsh opinion is not a hate speech”; HC quashes FIR against Sunaina Holey terming it “hypersensitive and over cautious”

“The right to express one’s views is a protected and cherished right in our democracy. Merely because the point of view of the Petitioner is extreme or harsh will not make it a hate speech as it is only expressing a different point of view.”

Read more…


Search Warrant


What is proper procedure for executing a search warrant in a jurisdiction outside of issuing court? HC decides whether Ss. 101 and 105 CrPC are directory or mandatory

A Division Bench of Bombay High Court addressed a very pertinent issue of what is the proper procedure for execution of a search and seizure warrant when such warrant is sought to be executed outside of the local jurisdiction of the court issuing the warrant.

Read more…


Property Suit


In a property suit in which decree has been passed, can a third party’s intervention application claiming his right to recovery be maintainable? Read on

“..in a suit for specific performance, a third party’s assertion that he has a stake in the subject matter of the suit counts to noting (sic). What matters is the contract, not the property covered by the contract. “

Read more…


Commercial Bid


Can possible case of cartelization be determined only after opening of commercial bid? HC answers

There is nothing sacrosanct about finding the technical bid of a bidder responsive in a two bid system so as to make it obligatory on the employer to open the commercial bid. The employer may well come upon knowledge of some relevant information, which disqualifies the particular bidder, and in that case may choose not to open his commercial bid. If his disqualification is supported by some material on record, there is nothing further for this Court to inquire.

Read more…


Matrimonial Dispute 


  • Whether HC should quash an FIR arising out of matrimonial dispute on ground of same being settled amicably? Gian Singh v. State of Punjab referred

High Court reiterated the observation of Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303, while quashing an FIR registered for offences under Sections 498(A), 406, 504, 323, 34 of the Penal Code and Sections 3, 4 of the Dowry Prohibition Act, on the ground of matter being resolved amicably.

Read more…

  • Is it necessary for the wife to file an application for permanent alimony in ‘writing’ under S. 25 of Hindu Marriage Act? Court unfolds dilemma of ‘oral’ & ‘written’ application

In the case of a decree by mutual consent, if relief for permanent alimony is sought, there is no occasion for the Court to observe the conduct of the parties, to examine their financial stability and other circumstances of the case to pass any order of permanent alimony at the time of passing of the decree of divorce by mutual consent. Essential element is that the Court should be able to comprehend the financial position and conduct of parties to pass permanent alimony order.

Read more…

  • Wife, a chattel? On refusing to make tea, husband assaults wife with a hammer. HC observes ‘imbalance of gender – skewed patriarchy’

 “There is imbalance of gender roles, where wife as a homemaker is expected to do all the household chores.”

 Read more…


Bail


  • Read why Bombay HC granted anticipatory bail to ‘Constable’ accused of rape and other offences | Succinct Report

Read more…

  • Mumbai Cruise Drugs Case | Bom HC grants bail to Aryan Khan, 2 others: Read the fourteen bail conditions

 Nitin W. Sambre, J., grants bail to accused Aryan Shah Rukh Khan, Arbaaz A. Merchant and Munmum Dhamecha while laying down 14 conditions.

Read more…

  • Bom HC discusses law where accused already granted bail but further non-bailable offences are added by prosecution

Sandeep K. Shinde, J., reiterated the law laid down by the Supreme Court in the case of Pradip Ram v. State of Jharkhand(2019) 17 SCC 326 wherein it was held:

 “where the accused is bailed out under orders of the Court and new offences are added including the offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the Court before granting permission to arrest an accused on the basis of new offences. The Powers under Sections 437(5) and 439(2) are wide powers granted to the Courts by the legislature under which Court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to the earlier offences.”

Read more…

  • [Elgar Parishad Case] Bombay High Court grants default bail to activist Sudha Bhardwaj

“Once the period of detention expired and the accused manifested the intent to avail the right by making an application, no subterfuge to defeat the said indefeasible right can be countenanced. The factors like the bail application was not decided, or wrongly decided, or subsequently charge-sheet came to be fled, or a report seeking extension of period of detention came to be fled and allowed, are of no significance.”

Read more…


Amendment of Pleadings


In case of an application for amendment of pleadings, what would be the principal condition that Courts need to consider? Read on

Read more…


Adoption


Whether adoption can be restricted only to children in conflict with law, or in need of care and protection, or who are orphaned, abandoned or surrendered under provisions of JJ Act and Adoption Regulations? Elaborate report

The practice of adoption has been prevalent since ancient times and in different societies, the established practices and norms have evolved over a period of time.

Read more…


Right to Property


Right to Property under Art. 300 A – A Human and Constitutional Right? Court decides in a dispute of construction of National Highway [Land Owners v. State]

It is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development.

Read more…


Cooling Period under Hindu marriage Act


Is the 6 months period stipulated under S. 13-B(2) of Hindu Marriage Act mandatory or relaxation in exceptional situations is permitted? Read on

Read more…


Bribe | Prevention of Corruption Act


Mere recovery of tainted money without sufficient evidence to prove payment of bribe or to show voluntary receipt of money. Can accused be convicted under the Prevention of Corruption Act? Read on

Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe.

Read more…


Homebuyers & Builders


Builders taking flat purchasers for a ride, taking money but not delivering flats: Court asks builders to prove they are paupers, show standard of living bears out the same

Bombay High Court directed the builders who failed to refund the buyers their amount to date to establish that they are virtually paupers not having funds in their bank accounts and their standard of living also bears out the same.

Read more…


Cheating


For the offence of cheating under Penal Code, 1860, is intention of cheating important from inception? Read on

“…in the case of cheating, the intention of cheating right from the inception is important.”

Read more…


Departmental Enquiry


Departmental enquiry and criminal proceedings can go on simultaneously: Court refuses to quash departmental enquiry.

The Division Bench of R.D. Dhanuka and R.I. Chagla, JJ., refused to quash departmental enquiry against the petitioner even when there were pending criminal proceedings against him.

Read more…


Opportunity of Hearing


Denial of urgent hearing by DRT: Court says opportunity of hearing is integral part of constitutional philosophy well embedded in Arts. 14 and 21

“…opportunity of hearing is an integral part of our constitutional philosophy and it is well embedded in Articles 14 and 21 of the Constitution of India.”

 Read more…


 Right to Education Act


Can minority educational institution refuse admission to autistic child contravening statutory direction given before grant of minority status? Court answers

The disobedience of the directives issued by the Education Department cannot be condoned by obtaining certificate as minority education institution subsequently.

 Read more…


Principle of Double Jeopardy


Do principles laid under S. 300 CrPC and principle of double jeopardy under Art. 20(2) of Constitution differ? Explained

Bombay High Court while setting aside an impugned order explained the slight difference between principles laid down under Section 300 of the Criminal Procedure Code, 1973 from the principle of double jeopardy under Article 20 (2) of the Constitution of India.

 Read more… 


Registration Act


Does a Registering Officer has right to decide whether person presenting document for registration has marketable title or not? Court answers

 It is well settled that when a property is sold by public auction, in pursuance of an order of the Court and the sale is confirmed by the Court in favour of the purchaser, the said becomes absolute and the title vests in the purchaser. A sale certificate is issued to the purchaser only when the sale becomes absolute.

Read more…


Domestic Violence Act


 Concept of ‘continuing offences’ & limitation under Domestic Violence Act: Explained

 “…concept of continuing cause of action and continuing offence needs to be appreciated from the point of view of the aggrieved person i.e. wife.”

 Read more…


Income Tax Act


  • When is the intimation for setting off of refunds against tax remaining payable under S. 245, Income Tax Act, be given? Bom HC answers

“…intimation is to be given prior to the officer sets off the amount payable against the amount to be refunded. It can be neither simultaneous nor subsequent.”

 Read more…

  • If a person willfully attempts to evade tax, he can be prosecuted under S. 276C(1) of the Income Tax Act

The Division Bench of K.R. Shriram and Amit B. Borkar, JJ., discussed when a person can be prosecuted under Section 276C(1) of the Income Tax Act.

Read more…


Fair Reporting


 What is legitimate scope of a court reporter? When does a court reporter crosses line? Bom HC lays down

 “…with modern communications technology, the nature of reporting — often from the well of the Court itself — has radically changed: we often now see updates going out every few minutes on digital media.”

“…a fleeting impression by a journalist of the value of evidence is entirely beyond his or her legitimate scope. Such a journalistic pronouncement becomes unacceptable when it is conveyed to the reading audience or public as something already decided, or about which no other view is possible.”

Read more… 


 POCSO Act


 If a minor is made to succumb to penetrative sexual assault by various customers and is induced into prostitution, will person responsible for the same be punishable under POCSO Act? HC explains

Even according to the victim, she was lodged in the house of the appellants for a period of about a month and was subjected to sex twice a day.

Read more… 


Outraging Modesty of Woman


Bom HC on ‘Outraging Modesty of Woman’ | Would throwing love chit on person of a married woman amount to outraging her modesty? Read on

The modesty of a woman is her most precious jewel and there cannot be a straitjacket formula to ascertain whether modesty is outraged.

Read more… 


Dishonour of Cheque


 Can mere dishonour of cheque amount to abetment of suicide? Bom HC decides

Mere dishonour of cheque and refusal to pay remaining balance amount involved in the transaction does not amount to abetment to commit suicide.

Read more… 


Domestic Violence Act


Husband marrying second time after grant of divorce. Is it ‘domestic violence’ within DV Act? Decrypted

Section 3 of the D.V. Act defines ‘domestic violence’ in an elaborate manner and it refers to physical abuse, sexual abuse, verbal abuse, emotional abuse and economic abuse. This is in the context of a domestic relation shared between the aggrieved person and respondent.

 Read more…


Maintenance and Welfare of Parents and Senior Citizens Act | Misery of Parents


  • “Daughters are daughters forever and sons are sons till they are married”: Bom HC orders son to vacate flat of 90 yrs old parents

Noting the misery of parents aged 90 years, G.S. Kulkarni, J., observed that,

“Daughters are daughters forever and sons are sons till they are married” albeit there would surely be exemplary exceptions.

Read more…

  • Under the Parents and Senior Citizens Act, is it necessary to find out whether property belongs to parent exclusively or is a shared household in which daughter-in-law has rights? Bom HC deciphers

The Division Bench of Ujjal Bhuyan and Madhav J. Jamdar, JJ., while explaining the provisions under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 also elaborated upon the concept of shared household and remanded the matter back to the Tribunal for Maintenance and Welfare of Parents and Senior Citizens.

Read more…

  • Senior Citizen soon to enter her 90’s desired to end her life: Son and Grandson mentally left no stone unturned to make life of ‘grandmother’ a living hell | Bom HC emphasizes on family and societal values being perished

It is so disheartening that at such old age when the only expectation of a senior citizen, from the near and dear ones is of care, concern, affection and love, instead, what has been returned is harassment, wretchedness, suffering and abuse.

Read more…

  • Harassment to grab senior citizen’s property | 94-year old father approaches Court stating he doesn’t want his daughter even for one-minute longer

Noting in case after case, complaints from senior citizens that their own sons and daughters are harassing them, Division Bench of G.S. Patel and Madhav J Jamdar, JJ., expressed that,

“…the harassment is an attempt to somehow grab the senior citizen’s property in his or her lifetime without thought spared to the mental or physical health well-being or happiness of these seniors.”

Read more…


Principle of Equal Pay for Equal Work


Principle of “Equal Pay for Equal Work” does not operate in vacuum, it is not a fundamental right but a Constitutional goal depending on several factors

The principle “Equal Pay For Equal Work” is not a fundamental right but a constitutional goal and entitlement to parity in Pay Scale would depend on several factors such as educational qualifications, nature of the job, duties to be performed, responsibilities to be discharged and experience.

 Read more…


Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021


 ‘People would be starved of liberty of thought if…’: Know why Bom HC partly stayed IT Rules, 2021

People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles.

 Read more…


 Contempt Case


 ‘Judiciary’s dignity cannot be tarnished by irresponsible content’: Bom HC closes contempt case against person uploading contumacious content against Goa District Judiciary on YouTube & WhatsApp

“Court has the duty of protecting the interest of the community in the due administration of justice and, so, it is entrusted with the power to punish for its contempt.”

 Read more… 


Defamation


Gangubai Kathiawadi | Can an adoptive son file for defamation of deceased mother? Bom HC decodes

“The law on the principle of Torts that an action dies with the person, in a defamation proceedings is required to be appreciated.”

 Read more… 


Divorce


 No decision on divorce petition, yet wife creates matrimonial profile expressing will for second marriage. Can this be a ground for divorce?

“…conduct of the respondent to perform the second marriage and not to lead the life with the appellant is writ large from the fact that she did not apply for restitution of conjugal rights.”

 Read more… 


Right of Inheritance


Widow’s right of inheritance after re-marriage: Will mother of deceased be fully entitled to claim dues of deceased son or does wife who re-marries will also have share? Bom HC delves to answer

Addressing a matter pertaining to the widow’s right of inheritance on the property of the deceased husband,S.M. Modak, J., observed that,

Both wife and mother will have an equal share in light of Section 24 of the Hindu Succession Act, which was in existence at the time of the dispute.

Read more…


Supply of Water


Two hours, Twice a month, water supply – Even after 75 years of independence, Bom HC addresses request for regular water supply || State Govt. depriving people of their fundamental right

State Government by providing water to its citizens only twice a month, and that too for a mere two hours, is not only depriving its people of their fundamental right, but in doing so is inviting criticism and tarnishing its image, especially when such is the scenario after 75 years of independence.

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Rehabilitation


Negligent approach of Govt & a cascading effect: Mere right of rehabilitation will be equivalent to right of ownership? Detailed report on how slum dwellers encroached public land and claimed their right

“It is not new that valuable Government land on account of the negligent approach of the officers in charge by not protecting such lands from encroachment have stood extinguished from the Government’s holding, causing a serious cascading effect.”

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Sexual Harassment


Fear of stigma, not being believed and being blamed: 17-year-old girl leaving a note to her mother explaining ill deeds of her uncle who sexually harassed her, ended her life | Bom HC delves to know what happened

Unfortunately, we have not been able to create an atmosphere in the Society where parents, teachers and adults in company of the child can identify signs of abuse and make sure children received care and protection.

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Rape on False Promise of Marriage


‘Astrological Incompatibility’ as reason to refuse marriage: Bom HC refuses to discharge man accused of rape on false promise of marriage

 While noting a case of false promise to marry, Sandeep K. Shinde, J., refused to allow application wherein a man claimed the reason of astrological incompatibility valid for refusing marriage.

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Contractual Employees


To exercise rights, can contractual employees approach a permanent employer? Bom HC verdict determines

Contractual employees are engaged through contractors, their service conditions are governed by the contracts between them, hence in case of any grievance, they shall approach the contractor and not a principal employer.

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Conviction under Section 304 Part I Penal Code, 1860


“Necessary to read mind of offender and not consider offence devoid of emotions”: Bom HC acquits accused of offence under S. 302 IPC rather convicts under S. 304 Part I IPC

Convicting a person under Section 304 Part I of Penal Code, 1860 Division Bench of Sadhana S. Jadhav and Sarang V. Kotwal, JJ., held that,

On finding that there was no hope that his beloved wife would return to matrimonial abode, accused got enraged an lost self-control and assaulted his wife with whatever available just nearby.

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Cheating


Tendency of guaranteeing decision to come in favour of one party or other, amounts to maligning a particular Judge and at large, institution itself by giving an impression that justice can be bought

It is not uncommon feature that when the matter is pending before the particular Court, the parties indulge into transaction under the guise of ‘settlement’ and sometimes it so happens, even without the knowledge of counsel on record, who may prefer to argue the case on its merit. This tendency of guaranteeing the decision to come in favour of one party or the other, amounts to maligning a particular Judge and at large, the institution itself by giving an impression that justice can be bought and the Prosecutors and Judges can be sold.

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POSH Judgments


POSH Judgments and Order to be delivered only in Chambers or in-camera, media disclosure forbidden: G.S. Patel, J. issues detailed guidelines

While addressing an issue revolving around the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 and  Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Rules, 2013,  G.S. Patel, J., laid down guidelines with an endeavour to anonymize the identities of the parties.

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Trademark


 “Mark is to be taken as a whole”: Bom HC reminds PhonePe while conditionally allowing withdrawal application

G.S. Patel, J., granted ‘conditional’ liberty to Phonepe (P) Ltd. to withdraw its suit and an interim application filed against the use of mark POSTPE by Resilient Innovations (P) Ltd. However, before granting leave to withdraw, the Court passed a reasoned order and decided not to delete those reasons “only because an application for withdrawal is being made at this very late stage”.

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Bribe


Law on Discharge of Accused: Read why Bom HC refused to discharge Income Tax Officer accused of demanding bribe

Sandeep K. Shinde, J., refused to discharge an Income Tax Officer from charges under the Prevention of Corruption Act. The applicant Income Tax Officer was accused of demanding a bribe.

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Educational Institute


Our educational institutions are so weak that they would fear that students would get adversely affected if a restaurant having liquor license was in school’s vicinity: Is it true? Bom HC finds out

An educational institute certainly contributes in creating ideal citizens. Human virtues and morals can never remain the same. It is thus more important that an endeavour of an educational institution should be to impart such education, so that the basic human values and good virtues are inculcated in the students, to make them ideal citizens.

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Rape


  •  Lower Court Judge failed in its duty to protect dignity of rape victim: Bom HC’s decision on committing of rape by cab driver joined by his accomplice

 “…object of sentencing policy should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it.”

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  • Rape by person claiming to have supernatural powers: Bom HC upholds conviction under S. 376 IPC, observes blind faith is real driver in such cases

C.V. Bhadang, J., while addressing the matter with regard to rape committed by a person claiming to have supernatural powers, expressed that,

“It is significant to note that the blind faith of the parties/victim on the accused is the real driver in such cases.”

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Custody


Custody of minor child, can it be determined on basis of work commitment of one parent and availability of ample time with another? Bom HC decides while determining question of custody, visitation rights and more

 Love and affection of both parents is considered to be the basic human right of a child.

 Courts often ensure that even if custody is given to one parent, the non-custodial parent has adequate visitation rights.

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NDPS


  • Whether the blotter paper forms an integral part of the LSD drug when put on a blotter paper for consumption?

Addressing a very crucial question having relevance with the Narcotics Drugs and Psychotropic Substances cases, Revati Mohite Dere, J., decided whether blotter paper forms an integral part of the LSD Drug when put on blotter paper for consumption.

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  • Did Aryan Khan with other two accused hatch a conspiracy to commit offence under NDPS Act?

Merely because of Applicants were travelling on the cruise, that by itself cannot be termed as satisfying foundation for invoking provisions of Section 29 against the Applicants.

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Documents


Does accused has right to demand production of documents withheld by investigator at framing of charge? Does S. 91 CrPC include witness statement?

Sandeep K. Shinde, J., expressed that it is settled law that at the stage of framing the charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused and at that time, trial court is required to consider only police report referred to under Section 173 of the Code and documents sent with.  

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Rape & Murder


  • ‘Hang by neck till dead’: Bom HC confirms death sentence in a rarest of rare cases for committing rape and murder of a 3-years 9-months old child

While confirming the death sentence in this rarest of rare cases, the High Court observed:    

“The act of the accused is gruesome and is committed in a diabolic manner. It is a heinous offence. It is unimaginable that a cheerful, frolicking child enjoying with her pet would provoke the feelings of lust in a man who is a father of two daughters and a son. The perversity in the mind of the accused is apparent and therefore, we are of the opinion that the aggravating circumstances in the present case outweigh the mitigating circumstances placed before the court in the course of hearing of the appeal.”

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  • Rape, Murder of Ragpicker: Merely because crime is heinous and brutal, it won’t be just to get carried away sans any legal proof to substantiate charges

The Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ., while addressing an alleged rape and murder case of two rag pickers, held that,

“…prosecution has utterly failed in connecting the dots and bringing home the guilt of the accused.”

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Abetment of Suicide


Is it possible to frame a charge against accused for abetment of suicide and in the alternative for committing murder?

Sandeep K. Shinde, J., explained as to when a charge in the alternative can be framed against an accused and when it is not permissible to do so.

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Eviction


Eviction of tenant, serving of notice by modes laid under S. 106 of Transfer of Property Act: Bom HC discusses all [Detailed report]

A.S. Gadkari, J., while addressing a matter of the eviction of a tenant focused on the modes of serving a notice under Section 106 of the Transfer of Property Act, 1882.

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Sterling Witness


Significance of ‘sterling witness’ in a matter wherein a daughter alleges that her father raped her: Bom HC examines whether daughter’s evidence was of ‘sterling quality’ or not

Anuja Prabhudessai, J., while addressing a matter of a daughter alleging rape by her father expressed the significance of ‘sterling witness’.

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Outraging Modesty of Woman


Touching feet of a woman without her consent: Is it outraging the modesty of a woman?

“…touching any part of the body of a woman without her consent that too in the dead hour of the night by a stranger amounts to a violation of modesty of a woman.”


Honour Killing


‘Could have cut off relations, instead opted to commit cold-blooded murder’: Bom HC upholds death penalty of brother for pre-planned murder of sister and lover

In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction.

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Maintenance


Trial Court mentions wrong provision of Mahomedan Law while granting maintenance to wife: Judgment of trial court will be defective in eye of law? Bom HC answers

Shrikant D. Kulkarni, J., decides whether the trial court’s decision mentioning the wrong provision pertaining to maintenance to the wife will be defective in the eye of law or not.

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Stamp duty


Stamp Duty correctly payable on instruments typical in Redevelopment Projects: Bom HC to decide

The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., considered petitions which raised questions about the interpretation of the validity of two circulars issued by the Inspector General of Registration and Controller of Stamps, Maharashtra State dated 23-06-2015 and 30-03-2017.

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Daughters as Co-parceners


S. 6 of Hindu Succession Act prevails over S. 29-A inserted by Maharashtra Amendment; wasn’t necessary for Parliament to repeal S. 29-A

“Central enactment, i.e., Section 6 Hindu Succession (Amendment) Act, 2005 would be applicable to this case and in view thereof, the plaintiff has share in the suit property, which has been rightly adjudicated by both the Courts below.”

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Impotency


Wife seeks to insert averments with respect to impotency of husband, can amendment to petition for annulment of marriage be allowed? Bom HC explains

While addressing a matterMangesh S. Patil, J., laid down significant aspects with regard to when a petition can be amended.

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In-camera proceedings


Does S. 327(2) CrPC providing for “in camera” proceedings apply to appeals? Bom HC decides while rejecting Tarun Tejpal’s application

A Division Bench of Revati Mohite Dere and M.S. Jawalkar, JJ. rejected Tarun Tejpal’s plea to conduct “in camera” proceedings in connection with the appeal filed against his acquittal in a rape case. The High Court held that:

“Section 327(2) CrPC would only be applicable to ‘inquiry’ or ‘trial’ and that the same will not apply to appeals, either appeal against conviction or an application seeking leave to file appeal against acquittal.”

Read more…


Framing of Charges


Can Judge sift and weigh evidence at stage of framing of charges? For what purpose? Bom HC considers while refusing to discharge accused

The judge while considering the question of framing the charges under Section 227 of the Criminal Procedure Code, has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not, a prima facie case against the accused has been made out.

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Temporary Residence v. Casual Residence


Can Magistrate entertain application under S. 12 DV Act from woman coming to his jurisdiction for casual visit? Is that covered under “temporarily resides”?

Sandeep K. Shinde, J., held that an aggrieved person cannot choose to file a petition under Section 12 of the Domestic Violence Act at any and every place, even if she was a mere casual visitor to that place.

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Experts CornerShantanu Mukherjee


Introduction


Telemedicine usage spiked early in the COVID-19 Pandemic as consumers and providers sought safe ways to access and deliver healthcare. The healthcare profession had to react swiftly to deal with the social distancing measures put in place to assist flatten the curve of COVID-19 infections. At the peak of the epidemic, hospitals, clinics, and physicians looked to telemedicine for a method to deliver the same level of care while limiting the spread of the coronavirus. Key trends in the utilisation of technology have evolved, which will continue to impact the future of telemedicine services.

 

This necessary step change was made possible by the following factors: (1) increased consumer desire to utilise telemedicine; (2) increased provider willingness to use telemedicine; and (3) regulatory improvements that allow for more access and payment. During the pandemic’s tragedy, telemedicine provided a bridge to care, and it now provides an opportunity to rethink virtual and hybrid virtual/in-person care models, with the objective of improving healthcare access, results, and cost.

 

By bringing AI to the edge, telemedicine has evolved patient care and experience through accessibility, which was invaluable for treating COVID-19 as well as curbing its spread.  In FY 2021, the Indian Telemedicine Market was valued at USD 1314.83 million and is predicted to develop at a healthy Compound Annual Growth Rate (CAGR) of roughly 22.31 per cent.

 

This is attributed to the country’s strengthening healthcare IT infrastructure, as well as India’s expanding digitalisation. Furthermore, the rising incidence of chronic and infectious illnesses in the nation, along with a dearth of healthcare workers and doctors, is predicted to drive market expansion through FY 2027.

 

Through remote patient monitoring, for example, physicians were able to use internet connected, at home devices to track the health of high-risk individuals, like the elderly and post-op patients, while minimising their exposure.

 

Telemedicine connects healthcare professionals with patients using new technology such as kiosks, online monitoring programmes, mobile phone applications, wearable devices, and videoconferencing. This article will investigate different telemedicine rules in several worldwide jurisdictions, as well as offer a more in-depth look at the Indian situation.

 


What is Telemedicine?


Telemedicine/telehealth can be understood as the delivery of healthcare services by healthcare professionals using information and communication technologies for the exchange of valid information for the diagnosis, treatment, and prevention of disease and injuries, as well as continuing education of healthcare providers and research and evaluation, all in the interests of advancing health.

 

According to the Centers for Disease Control and Prevention (CDC), telemedicine use increased by more than 154% in late March 2020 when compared to the same time in 2019. Furthermore, according to current Fortune Business Insights forecasts, the industry will be worth more than $397 billion USD by 2027. To demonstrate the effect of the epidemic, the market was only worth $42 billion USD in 2019. While utilisation has declined since the pandemic’s height, it is obvious that telemedicine is now an important component of the future of healthcare delivery.

 

Telemedicine use has stabilised at 38 times pre-pandemic levels as of July 2021. Even before to the epidemic, research suggested increasing usage of telemedicine. In a McKinsey poll, 76 per cent of patients stated they would be interested in adopting telemedicine in the future. Furthermore, in research published in the Journal of Telemedicine and Telecare, more than half of respondents stated they would use telemedicine to refill prescriptions, prepare for an impending visit, check test findings, or obtain instruction.

 

A number of nations have established telemedicine practice guidelines. Telemedicine practice standards, not to be confused with the standard of care or scope of practice, are regulations and restrictions that clinicians must follow while practising medicine through telemedicine and often do not apply to in-person treatment. Patient informed consent to telemedicine services, specific disclosures on the provider’s website, mandatory forwarding of the patient’s medical records to the patient’s other caregivers, restrictions on the type of telemedicine technology/modality that can be used, and requirements for in-person examinations are examples of practice standards. Thus, providers must comprehend and follow nation-specific practice requirements, or risk being sanctioned by the Board of Medicine.

 

Many nations passed new telemedicine laws and guidelines in 2020, altering previous practice standards, permitted modalities, and prescription criteria. Changes included removing face-to-face assessments, practising primarily over the phone, and lifting telemedicine mode prescription limits. Some of these modifications were implemented by legislation, while others were made through executive order or regulation. During the pandemic, many of the alterations were just transient (with expiration dates that, confoundingly, often did not match the federally declared public health emergency date).

 

These exemptions produced a telemedicine regulatory environment that was more concerned with achieving the standard of medical care for a specific patient than of the technological modalities of care delivery (e.g., audio-video versus asynchronous). The American Telemedicine Association (ATA) aided in this endeavour by publishing sample policy wording for State telemedicine laws to serve as a reference source for best practices. This trend toward technology neutral telemedicine legislation is expected to continue in 2022, with stakeholders stressing the relevance of medical standard of care and clinical quality of services above proscriptive modality restrictions.

 


Leveraging AI and Telemedicine


According to MIT research, 75% of healthcare facilities that used AI recognised an enhanced capacity to manage ailments, and 4/5 claimed it proactively helped reduce worker fatigue. With COVID-19 placing a burden on both sectors (amount of clinical information and related patients, as well as increased clinician workload), AI in telemedicine is a strong strategy for the future of medical delivery. Years ago, advances in computers and artificial intelligence made cutting-edge telemedicine applications viable. Policy has been a major impediment to complete implementation until recently. Telemedicine has enhanced patient care and experience via accessibility by bringing AI to the edge, which has been helpful for treating COVID-19 as well as controlling its spread.

 

Physicians, for example, were able to employ internet connected, at home equipment to follow the health of high-risk populations, such as the elderly and post-op patients, while reducing their exposure via remote patient monitoring. This is a game changer, not just because it provides doctors with unprecedented levels of insight into their patients, but also because the more these technologies are employed, the more innovation they enable. For example, Intel is collaborating with Medical Informatics Corporation (MIC) to assist hospitals in centralising and analysing data from devices that monitor patients’ vital signs, reducing the frequency with which care teams must round on patients and reducing “alarm fatigue” by triaging the patients to whom they must respond.

 

AI and edge powered telemedicine has also enabled physicians and hospitals to interact in novel ways, pooling resources during crucial periods. Telemedicine, will have an influence on every aspect of healthcare. In the not too distant future, for example, psychiatric care teams may utilise AI enhanced, high definition videoconferencing to evaluate patients’ facial clues to get a deeper grasp of their emotional states in the present.

 

The most common AI applications in telemedicine include data analysis and cooperation, remote patient monitoring, and intelligent diagnosis and help. The potential of AI may be used to complement doctors’ skills to diagnose and treat patients, reduce physician burnout, and improve the overall patient experience. Due to the continuing public health issue, the emphasis on AI and telemedicine remains a significant push for healthcare executives looking to stay competitive by improving clinician processes and uncovering predictive potential via patient data analysis.

 


Global perspectives on Telemedicine


The constraints on travel imposed by COVID-19 in many areas of the globe have prompted Governments to see the promise of telemedicine and, overnight, alter laws and regulations to allow healthcare practitioners to install telemedicine systems. Many Governments have implemented telemedicine measures in a matter of weeks that would have normally taken years to evaluate and implement. There are several possibilities in the telemedicine arena for existing organisations, firms contemplating expanding into telemedicine, and startups.

 

Healthcare providers are increasingly reaching across borders to give medical services directly to overseas patients and doctors via the use of technology. While hospitals, colleges, research institutes, and healthcare firms have always been involved in global health activities, current communications technology has permanently transformed the delivery paradigm. Today, offering services to patients and doctors situated halfway across the world requires synchronous and asynchronous communication technologies such as e-mail, interactive video, and smartphone applications that aid in diagnosis, consultation, treatment, monitoring, and even medical research. Remote second opinions, in which a healthcare practitioner is requested to confirm a diagnosis or treatment from a distance by either a physician or a patient, have also increased in the worldwide medical industry.

 

International telemedicine is rapidly expanding. Even with a basic internet connection, telemedicine services offer convenience, increased access to experts, cost savings, and collaborations among healthcare providers from other nations. All of this has the potential to improve health outcomes. And, as the globe prepares for public health events like the COVID-19 Epidemic, harnessing telemedicine to battle illness is critical.

 

Although the practice of medicine is regulated globally, telemedicine does not necessarily fall under the conventional realms of legislation and regulation relevant to the medical profession and thus it requires more stringent regulations and monitoring.

 


                Regulations for Telemedicine in the United States of America


While telemedicine is typically permitted in the United States, it is exceedingly complicated and heavily regulated, both in terms of general practice and coverage. There is no federal legislation that controls telemedicine practice. Telemedicine is governed at the State level, and the definition of acceptable telemedicine activities varies widely. States often define telemedicine differently, with some allowing asynchronous connections and others requiring only real-time interactive voice and video chats. In addition to the rules governing telemedicine practice, there are significant differences in telemedicine coverage and payment at both the State and Federal levels.

 

The Medicare Program insures US seniors aged 65 and over, as well as some persons with qualifying impairments. Despite exceptions to Medicare’s Telemedicine Payment Policy, present laws discourage broad adoption and usage of e-health and create a precedent for other big commercial insurers. The Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for Health Act was proposed in the United States Senate in 2017, however it has yet to move. This legislation proposes removing Medicaid’s geographical constraints and, if approved, would increase coverage of telemedicine services. As a consequence, telemedicine services would be afforded the same Medicaid validity as in-person appointments, perhaps inspiring other insurers to adjust their private policies.

 

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a piece of US law that establishes data privacy and security safeguards for medical information. Its goal is to eliminate healthcare fraud and abuse by establishing industry-wide standards for healthcare data on electronic billing and other operations. It also necessitates the safeguarding and secure processing of sensitive patient health information. This is addressed by the privacy rule and the security rule, and it is very important in telemedicine.

 

Several commercial insurers have followed suit and are either paying healthcare providers for telemedicine services or directly offering telemedicine access to their members as part of their benefits. Previous rules are also being relaxed, including the expansion of covered telemedicine services and the ability for new patients to be treated through telemedicine rather than just those with a prior connection. Penalties for HIPAA breaches in telemedicine are now waived when Healthcare Personnel (HCP) behave in good faith in the face of the COVID-19 Pandemic.

 

Furthermore, in order to assist telemedicine, practitioners who are licensed out of State and in good standing are permitted to practice beyond State boundaries. The Federal Communications Commission has just established a $200 million coronavirus telemedicine initiative. Variations in acceptance and disparities in legislative frameworks among States have been one of the barriers to telemedicine adoption. These differences call for a government telemedicine policy push to standardise and expedite an overall framework that might increase telemedicine’s penetration throughout the United States.

 

Virtual visits increased dramatically as a result of these legislative changes. Now that virtual care has gained broad acceptance and adoption, regulators, politicians, and industry executives are advocating for permanent reforms that will allow for the ongoing widespread use of telemedicine post-pandemic. We are witnessing new legislation initiatives at both the Federal and State levels, and we anticipate substantial changes in the coming years. While most of this reform will take time, there is a strong desire and motivation at both the Federal and State levels to advance rules that would allow for sustained telemedicine access.


Telemedicine Regulations in the United Kingdom


There are no explicit laws that govern telemedicine in general. Instead, healthcare practitioners will be subject to the same regulations, licensing and registration requirements, and professional standards of conduct that apply to their specific area as they would if the service was performed in-person. At the moment, no legislation or regulations in the United Kingdom directly cover telemedicine.

 

The Care Quality Commission (CQC) is England’s healthcare provider regulator (with Northern Ireland, Scotland, and Wales each having its own regulator). To offer remote medical advice, the CQC requires all service providers to register. Providers must demonstrate to the CQC that the care and treatment they provide will fulfil the criteria of the Health and Social Care Act, 2008 and its accompanying regulations. This implies that digital suppliers of medical advice are subject to the same regulatory framework as non-digital providers.

 

Telecommunications corporations such as BT, Virgin Media, and Sky in the United Kingdom (UK) have committed to help the National Health Service (NHS) carry out telemedicine for healthcare practitioners. Primary care, clinical trials, counselling, and chronic illness evaluations are all being delivered through telemedicine. The Government had previously declared a centrally sponsored “long term plan” to minimise the number of outpatient presentations prior to COVID-19. This has to be implemented considerably quicker than planned due to the rising demand for telemedicine to replace outpatient appointments. Regulators have recognised that providing healthcare through telemedicine may provide an extra degree of risk to patients, which must be addressed by the healthcare practitioner. As a result, a number of UK authorities and trade organisations have attempted to provide guidelines to the professions they supervise.

 

As an example, in April 2019, the General Pharmaceutical Council provided guidelines on delivering online pharmacy services, outlining the actions pharmacists may take to ensure they continue to satisfy the standards required of them.

 

In response to the COVID-19 Pandemic, the General Medical Council released recommendations to help physicians in giving remote consultations and actions they may take to maintain patient safety.

 

The British Medical Association, a trade union and professional association for physicians in the United Kingdom, has recently produced guidelines on how to conduct patient consultations via videoconference. Any healthcare practitioner interested in using telemedicine in the UK should verify that they have the proper licensing and registration for the healthcare services they offer, as well as evaluate any accessible and relevant guidelines published on best practice for remote service provision.

 

Given the recent surge in telemedicine usage, it is expected that regulators will continue to react with any applicable recommendations or rules of behaviour, unique to the healthcare service that they supervise. This is likely to be the case if any regulatory loopholes are discovered, as indicated by the CQC on its website. Legislation may often fall behind technology changes, and as a result, it is probable that this sector will be subject to more examination and legal modifications in the future.


Telemedicine Regulations in China


China has a significant urban-rural health disparity, which large telemedicine networks such as the International MedioNet of China Network, Golden Health Network, and People’s Liberation Army Telemedicine Network have been unable to bridge. The National Health Commission and the National Administration of Traditional Chinese Medicine issued new e-healthcare rules in September 2018 in order to expand telemedicine capabilities and develop the telemedicine industry. This includes advice on commercial company hospital cooperation, telemedicine diagnostics, patient permission, and third-party collaborations. This expanded telemedicine definitions beyond physician-to-physician consultations to include physician to patient contacts, although implementation and regulation remain unclear.

 

In China, remote medical care delivery utilises both proprietary systems and the use of generic remote messaging applications such as WeChat. According to the good administrative practice for remote medical services (for trial implementation), the inviter institute for remote medical services may directly invite the invitee institute to provide technical support for the inviter institute’s medical treatment activities via telecommunications, computer and network technology, and so on. On the other hand, the inviter institution or a third-party organisation may also build a proprietary platform for remote medical care supply.

 

Online healthcare platforms, like those in other Asian countries, are expected to see significant increases in market share in the coming years, particularly following COVID-19, with companies offering direct-to-patient telemedicine subscriptions such as Good Doctor, Alibaba, and Tencent experiencing growth. China is also pioneering contactless technologies, such as a Smart Field Hospital experiment in Wuhan at COVID-19, in which patient care is given by robots and digital gadgets.


Telemedicine Regulations in Australia


In Australia, there are presently no rules or regulations governing telemedicine. Existing rules and regulations governing healthcare delivery apply to telemedicine. Various regulatory and industry organisations in the healthcare profession, however, have issued guidance notes on the delivery of services through telemedicine. For example, the Australian Health Practitioner Regulation Agency (AHPRA), the federal organisation in charge of regulating healthcare professionals in Australia, has released telemedicine information for practitioners on its website (AHPRA guidance). According to the AHPRA guidance, all registered health practitioners may utilise telemedicine as long as it is safe, clinically acceptable for the healthcare being delivered, and appropriate for the patient. The AHPRA guidance further points out that no special equipment is necessary to offer telemedicine services, and that services may be delivered using phone and publicly accessible video chatting applications and software.

 

However, the AHPRA guidance notes that free versions of applications (i.e. non-commercial versions) may not comply with applicable security and privacy laws, and practitioners must ensure that their chosen telecommunications solution meets their clinical requirements, their patient’s or client’s needs, and satisfies privacy laws. In addition to the current “Good Medical Practice: A Code of Conduct for Doctors in Australia,” the Medical Board of Australia has issued online “guidelines for technology-based patient consultations”. The Royal Australian College of General Practitioners (RACGP) has also issued a “guide to conducting telephone and video consultations in general practise”.


Telemedicine Regulations in Europe


The danger of COVID-19 in Europe has required the necessity for patient-accessible telemedicine services. Telemedicine firms such as France’s Doctolib and Qare, Sweden’s LIVI, the United Kingdom’s Push Doctor, and Germany’s CompuGroup Medical SE have all witnessed significant gains in European acceptance. Telemedicine is regarded as both a health service (Directive 2011/24/EU) and an information service (Directives 95/46/EU, 2000/31/EC, and 2002/58/EC) in Europe. A Europe-wide framework is far from being implemented due to the absence of Pan-European common medical responsibility and medical legal rules.

 

Throughout the epidemic, Germany has persistently stayed at the forefront of the digital health change by constantly developing and adjusting laws. DiGA Fast Track was established in 2019 as a result of the Digital Healthcare Act (DVG) and other legal reforms, which meant that applications could be prescribed by physicians and expenses could be paid via German health insurance. Two health applications were legally accessible for prescription on October 5, eleven months after the German Federal Government enacted the DVG.

 

France passed a new healthcare legislation in 2019, based on the Government’s “My Health 2022” strategy, which aims to broaden the country’s e-health emphasis. France intends to improve interoperability; roll out nationwide electronic health records (EHR) to become the cornerstone of e-health platforms; leverage the use of AI in health; establish a data hub for healthcare data sets; and invest further in the public health system’s recent introduction of telemedicine.

 

Telemedicine use has been smashing records in the nation, leading Health Minister Olivier Véran to issue a directive to make it easier to practise telemedicine. Furthermore, the nation has just begun trials for a digital vaccine passport and is making good progress in using health technology to return the country to normalcy. Now, the International Chamber of Commerce (ICC) AOKpass app will be trialled for travellers travelling to the French Caribbean Territory of Martinique and Guadeloupe.


Telemedicine Regulations in India


The Board of Governors (BoG) of the Medical Council of India (MCI), the erstwhile medical education regulator in India that prepared the guidelines in consultation with the premier planning body, the NITI Aayog (National Institution for Transforming India), has attempted to fill an important gap: a lack of legislation and a framework for ethical telemedicine practise. The recommendations identify video, audio, and texting as three means of communication and specify the conditions for practitioners to utilise them, including constraints.

 

As stated in the background of the aforementioned guidelines, the purpose of these guidelines is to provide practical advice to doctors in order for them to begin using telemedicine as part of their normal practice, as well as to provide them with a sound course of action to provide effective and safe medical care based on current information, available resources, and patient needs to ensure patient and provider safety, to be used in conjunction with national clinical standards.

 

The guidelines comprehensively set out the standards, norms, and procedures to be followed by any person who has enrolled in the State Medical Register or the Indian Medical Register under the Indian Medical Council Act (Registered Medical Practitioner/RMP) while practising telemedicine in India through any mode of communication viz. video, audio, or text-based communication, either for exchange of information in real time or in synchronous modes for first consults or follow up patients. The guidelines require RMPs to complete an online training session offered by BoG within three years of the guidelines’ announcement.


Individuals That Are Certified To Provide Telemedicine


Under the guidelines, any individual who is registered in the State Medical Register or the Indian Medical Register (RMP) under the Medical Council Act, 1956 is competent to perform telemedicine.

 

RMPs who intend to practise telemedicine must finish an obligatory online course made accessible by the BoG within three years after notification. Until then, the principles outlined in the guidelines must be observed. The same ethical principles and standards that apply to in-person medical consultations apply to telemedicine.


Telemedicine Consultation Procedure


The guidelines recommend the following procedure, which must be followed by RMP providers.

Consultation using telemedicine

Commencement of consultation and consent – The patient initiates the telemedicine consultation by phone call, video, or text. Following that, the RMP may agree to conduct the consultation. The permission is inferred when the patient initiates the telemedicine session.

Identification – RMP should authenticate the patient’s identity to his satisfaction by asking for the patient’s name, age, address, e-mail ID, phone number, or any other suitable identification.

Brief evaluation – Before providing the telemedicine consultation, a quick examination of the patient should be performed to identify the state of the patient’s health. If the patient’s condition necessitates emergency treatment, the RMP should advise on first aid or other urgent relief, as well as provide assistance.

Information exchange – The RMP must exercise his professional judgment and ask the patient to supply the necessary information (complaints, other consults, medication details, documentation, etc.). The RMP may continue with the consultation after he is satisfied with the information. If the RMP considers that the information supplied is insufficient, he should terminate future telemedicine consultation and recommend in-person consultation. The RMP should keep an accurate record of the whole information exchange with the patient.

Patient management – If the RMP is satisfied with the foregoing information, the RMP may elect to give the patient with particular medications, counselling, or advice/information. The RMP must also keep a complete record of the patient.


Important Telemedicine Consultation Rules and Principles


  1. Initial consultation

The necessity for patient identification is not required for follow-up appointments (those consultations which are given within six months of in-person consultation). If a new symptom appears, it should be treated as the initial consultation.

The RMP must determine whether to employ text, audio, or video communication.

When offering telemedicine consultation, the RMP should exercise professional judgment and should recommend in-person consultation if it seems essential. Emergency treatment or consultation should normally be done in person, however the RMP may continue with telemedicine consultation if it is urgent and suitable in his professional opinion.

RMP has the option to cancel the consultation at any moment and refer the patient for an in-person appointment, and the patient has the same option.

  1. Medications

(a) From time to time, the Central Government may announce drugs (other than those previously specified in Annexure 1 to the guidelines) that may be prescribed through teleconsultation, as well as any limits that may apply, in the following categories:

(i) List O: Medicines that are safe to prescribe through any means of teleconsultation, such as those used for common diseases (paracetamol, ORS solutions, and so on) or those judged required during public health crises.

(ii) List A: Medicines that may be given during the initial video consult and are re-prescribed for refill in the event of a follow-up. This would be a list of medications that are reasonably safe and have a low risk for misuse.

(iii) List B: Medicines that may be provided to a patient receiving a follow-up consultation in addition to those recommended during the in-person consultation for the same medical condition.

(iv) Prohibited list: Prescription only medications.

(b) RMP must provide the patient a picture, scan, or digital copy of the signed prescription by e-mail or any messaging platform.

(c) The prescription should be in accordance with the code of conduct and should not violate the Drugs and Cosmetics Act, 1940 or the regulations enacted under them.

(d) When a prescription is sent directly to a pharmacy, the patient’s express agreement is required. Such a prescription should only be issued to the patient’s preferred pharmacy.

  1. Maintaining Confidentiality

The code of conduct, as well as the IT Act and other data protection requirements, will apply to RMPs who provide teleconsultation.

All information supplied by the patient must be kept secret, and the RMP must take appropriate precautions while using platforms to ensure such confidentiality.

RMP is expected to capture all facts and keep a complete record of the patient, including any documents or information utilised for the consultation and prescriptions.

  1. Cost

RMP may charge a reasonable fee, and telemedicine consultations are to be regarded in the same manner as in-person consultations.

RMP is required to provide a receipt/invoice for the price charged for telemedicine consultation.


Impact of the Guidelines


Telemedicine practice in India has now been given legal standing, thanks to the processes and norms outlined in the guidelines and the code of conduct. These guidelines are extensive and cover every element and the Board of Governors has been assigned the task to:

  • Amend the guidelines if necessary.
  • Issue the medications list under the guidelines.
  • As needed, provide instructions, recommendations, or explanations about these guidelines.

 

Any infraction committed while using telemedicine would be deemed misconduct at the hands of the responsible RMP under the code of conduct. As a result, if the misbehaviour is proven, the RMP may be punished, or their registration may be suspended or terminated.

 

These guidelines herald the beginning of a new era for India’s pharmaceutical business. Patients no longer have to drive to hospitals and wait in large lines to see a doctor for minor issues. The guidelines have cleared the path for consultations to be conducted through any kind of communication medium while still preserving the patient’s interests. This is particularly important given the situation in India as a result of COVID-19, which has made many people unable to obtain healthcare adequately.


Future Modifications and Reforms


The advancement of information technology has had a profound effect on society. Telemedicine refers to the transmission of medical information and knowledge through telecommunications and computer technologies in order to enhance patient diagnosis, treatment, and management. Telemedicine includes distant learning, medical peer review, patient education efforts, and other related activities.

 

The internet, mobile phones, and e-mail are all new areas for healthcare practitioners to explore, and they should proceed with caution. Telemedicine has medicolegal consequences for registration, licensure, insurance, quality, privacy, and secrecy, as well as other dangers involved with electronic healthcare communication. Another critical factor is the physician-patient connection, as well as the quality of care and informed consent. These complex concerns are further compounded by the lack of any legislation or laws, particularly concerning matters such as professional negligence, obligations, liabilities, and fines in such instances. Additional concerns in telemedicine, telemedicine, teleconsultation, telemonitoring, tele-treatment, and patient information records must be addressed.

 

Telemedicine’s reach is expanding, as is the quality assurance of its services. Telemedicine, like the standardisation of information technology, is a growing sector for effective care delivery with standardised information exchange.

 

Despite differences in telemedicine adoption throughout the globe, it is understood by various jurisdictions that telemedicine helps improve health system performance and needs further regulation. Telemedicine has taken a springboard trajectory in the COVID-19 era, as governments and partnerships formed have forged a way to support and accelerate its rollout, particularly in developed countries. During COVID-19, telemedicine proved companies’ capacity to provide excellent care remotely (at home) while simultaneously lowering expenses. This is expected to continue beyond the COVID-19 time-frame, as telemedicine services are strengthened and expanded. Moving on, one area that deserves special emphasis is increasing the use of telemedicine among sub-specialties to supplement primary care. Building relationships among many stakeholders and encouraging open innovations are developing roles that will enable the advantages of telemedicine to reach disadvantaged geographies.

 

Once the COVID-19 phase is finished, regional efforts such as Pan-European initiatives may be considered in terms of acceptable regulatory and governance structures. International initiatives to build a public health preparation framework with telemedicine at the centre of public health response during epidemics like COVID-19 are necessary and countries such as India have taken calls to action in this regard which has spearheaded a new wave of e-health regulations.


† Shantanu Mukherjee, Founder, Ronin Legal.
†† Vatsala Sood, Intern, Symbiosis Law School, Pune.
Experts CornerThe Dialogue

Among the many epiphanies one has had owing to the COVID-19 Pandemic, the spike in the knowledge or awareness of the amount of data pertaining to citizens that a Government has the ability to handle has been a common one. Though citizens are often willing participants in efforts aimed at better governance, they are also increasingly becoming wary of how they share their data. For better citizen engagement and collaboration, the Government must strive to build trustworthy, transparent and accessible models that enable the citizen to place their trust – and thereby their data in the hands of the Government.

 

Considering the increasing penetration of digital services in India, the Personal Data Protection Bill, 2019 is a well-intentioned and timely intervention on the part of the Government. Pertaining to building the trust of citizens and enhancing their engagement with the Government this framework requires work in two areas.  Firstly, in areas that deal with the Government’s ability and right to access data from citizens or businesses. Secondly, in promoting the accessibility of institutions within the framework to be accessible to all sections of the Indian society and overcome the vast digital divide present in our society. Though, the intention of the Government is to ensure better delivery of services and evidence based policy-making, an attempt to gain carte-blanche access to data from businesses would further promote an environment of mistrust between the Government and the industry. The wide exemptions provided to the Government and its agencies from this framework also add to a citizen’s skepticism and mistrust in the system. The Government being among the largest data fiduciaries in our society holds onto a treasure-trove of personal data of its citizens. In such a situation, citizens must be assured that whether it is the Government or a private entity that is handling their data, it is equally protected in the event of misuse.

 

Though trust in the Government is important, the framework will truly be able to exercise its functions and purpose based on the level of inclusion and involvement of the community. Considering India’s vast demographic profile, ensuring accessibility efficiently for all sections of society is going to be a challenge. The digital divide that presently exists in India, especially between rural and urban areas, owing to asymmetry in digital infrastructure and education will only amplify implementational challenges. India has already suffered from roadblocks in this regard while implementing the revamped GST framework and should use that as a cautionary tale while formulating the personal data protection framework.

 

Any proposed authority, institution or platform that is designed under this framework must strive to understand and cater to the cultural and regional sensitivities of the people. It is suggested that a more multilingual, less text-based approach is taken. One that is not overly dependent on literacy – both conventional and digital. The Committee of Experts, under the chairmanship of Justice Sri Krishna, had suggested the formulation of a “data protection awareness fund” that would utilise penalties generated under the framework for the purpose of generating awareness regarding data protection and rights. Unfortunately, this has been done away with in the new Bill introduced in December 2019. It is yet to be seen, however, if the latest draft which is expected to be tabled in the winter session of the Parliament will have this incorporated. It is imperative that the framework facilitates the enhancement of digital literacy and awareness in addition to ensuring last mile connectivity to truly achieve its objectives.

 

For Governments, winning the trust and confidence of the people is not an easy task. It is a long drawn process, however with the Personal Data Protection Bill, the Government has been given an opportunity to begin this process. They must work to ensure that the framework achieves its true objective by ensuring that the rights of every individual receive equal protection against the exploitation and misuse of their information by any entity.


Shefali Mehta, Programme Manager, The Dialogue. She has a degree in Business and Law from Gujarat National Law University. She has also worked in short engagements in the areas of gender and caste. Her focus areas at the Dialogue include policy analysis and outreach with Parliamentarians and civil society organisations.

Case BriefsDistrict Court

Patiala House Courts, New Delhi: Parveen Singh, Additional Sessions Judge expressed that,

“Section 6(3) NIA Act only applies to the cases where a report has been sent by the State Government and does not apply to the cases where information has been given by some individual and thus, Central Government is not bound to act upon this information within 15 days or to revert back to said individual.”

Instant application was filed under Section 156 (3) CrPC read with Section 16 of NIA Act seeking directions for registration of First Information Report.

Applicant/Complainant was renowned in the field of medicine with recognized expertise and in the said capacity he undertook a thorough analysis of nature and origin of SARS-CoV-2.

He submitted that in view of the nefarious, terrorist, expansionist, aggressive and animus behaviour of China at the borders of Northeast region of India, it would be dangerous not to undertake a detailed investigation qua the origin and spread of the virus from China to India. Considering the nature of deliberate and malicious origin of the virus, offences under Sections 16, 17, 18, 18A, 18B, 23 etc. of UAPA and section 14 of Weapons of Mass Destruction and their Delivery System (Prohibition of Unlawful Activities) Act and Sections 121/270/302/307/312/313/325/333/314 r/w Sections 34/120B of IPC are made out.

In view of the above-stated applicant forwarded a complaint to the Director General, NIA for registration of appropriate report and for investigation into the offences. Applicant forwarded a complaint to the MHA.

Complainant’s counsel submitted that it was a widespread conspiracy to carry out the terrorist act by a biological weapon throughout the world and it had its effects in India also.

Adding to the above contention, he added that as per Section 15 (1) (a) of UAPA, 1967, an act committed by using substances whether biological radioactive, nuclear of a hazardous nature or by any other means to cause death, injury to any person or persons is a terrorist act. He has further contended that the virus created in the lab was a biological substance which has resulted in loss of lives and thus a terrorist act has been committed. He has further contended that as per Section 16 (1) of NIA Act, 2008, this court has powers to take cognizance of the offence and thus, it becomes a court of original jurisdiction and hence, the present application under Section 156 (3) CrPC is maintainable before this court.

Analysis, Law and Decision

Bench stated that a bare perusal of Section 6 of the NIA Act reflected that there are two modes of investigation by NIA.

  • One is where an offence is reported and registered with local PS in a State and the State forwards the report to Central Government for its consideration, as is provided under Section 6(3) NIA Act. Thereafter, after considering the said report, the Central Government shall take a decision whether the matter is to be investigated by NIA or not.
  • The second is, that the Central Government, as provided under Section 6(5) NIA Act, can suo moto and without any report of the State Government can direct the NIA to take over the investigation.

Court disagreeing with the interpretation made by the complainant’s counsel that the words “or received from any other source” imply if the Centre receives information from any other source, it is still duty bound to act as provided under Section 6(3) NI Act and take a decision within 15 days.

Analysis, further, the Bench added that, if read holistically, Section 6(3) NIA Act opens with words “On receipt of report from the State Government”. So as far as Section 6(3) NIA Act was concerned, the process is only set in motion when the Central Government receives a report from the State Government.

Moving further, the Court expressed that while evaluating the report of State Government to decide whether the offence is Scheduled Offence or not and whether, the gravity of offence is such which would make it a fit case to be investigated by NIA, the Central Government on receipt of report from the State can not only use the information made available by the State but also use information received from any other source. So the words “from any other source” have been used with respect to material which the Central Government can utilize to decide whether from the report of the State, Scheduled Offences are made out or not and whether the offence is fit to be investigated by NIA.

an investigation by the NIA can only be taken up on the recommendation of the Central Government which the Central Government either gives suo moto or which it gives on the report of the State Government.

Hence, Section 156(3) CrPC will have no applicability in the present case.

Final Words

In Court’s opinion, the present complaint was based upon media reports, opinions, conjectures, surmises, probabilities and possibilities. There are no categorical facts which have been alleged and only the possibilities that SARS-CoV-2 might have been genetically modified at Wuhan Laboratories have been raised and that too not on the basis of facts but on the basis of view of experts.

Hence, Court held that,

“Opinions can never substitute facts and for creation of an offence, certain facts constituting the offence need to be disclosed and not the mere possibilities as has been done in the present matter.”

No merits were found in the present complaint. [Dr Jagdish Prasad v. State, CC No. 68 of 2021, decided on 7-8-2021]

Op EdsOP. ED.

Introduction

“There can be no life without change, and to be afraid of what is different or unfamiliar is to be afraid of life.”

— Theodore Roosevelt

Arbitration is often hailed for its exemplary flexibility and time effective process, as an ingenious dispute resolution mechanism. With physical hearings of courts, tribunals, etc. coming to a halt[1], Covid-19[2] pandemic made virtual hearings, the new normal. Virtual arbitration or even virtual adjudication is an unconventional eventuality that has been spurned upon the legal fraternity across oceans. Wherein, the legal fraternity was used to appearing in person before the courts or various tribunals, everyone has been thrust to a world of remote hearing, as a matter of urgency and desperation so that the judiciary is not overburdened due to a major time lapse.

It is often said: “justice delayed is justice denied”. In order to tackle the preceding issue, the Indian judiciary came up with effective solutions to move forward with their work and manage the rise of cases as they come, as justice never sleeps. Howbeit, there was a certain lack of illumination in regards to our alternate dispute resolution mechanism i.e. arbitration. Wherein our country and judiciary hails themselves to be a pro-arbitration regime, they sure have failed to take charge to emphasise that stance. With hearings in arbitration hardly moving past the initial stage, we have become what one might call “stagnant”. As a developing arbitration regime, being stagnant in this time and day is unpropitious news. In order to avoid becoming a dinosaur in the arbitration community, our country would have to take major significant steps to curb the conundrum which our country does not fully realise.

Vis-à-vis the aforementioned inception, the authors have penned down their thoughts on virtual arbitration in India. The article highlights the benefits and downfalls in virtual hearings in arbitration through an analysis undertaken by White & Case, elucidates the existing procedural framework and deals with the legal and ancillary issues subsisting and posed by the Covid-19 pandemic, concluding with the way forward for India to effectively adapt and tackle the predicament in order to become a hub for arbitration in the future.

A statistical analysis by White & Case

Internationally renowned firm, White & Case, in association with Queen Mary University of London and School of International Arbitration conducted a survey.[3] It stated that the use of virtual hearings has been brought upon as a result of Covid-19 pandemic. It has allowed for people to evaluate the alternatives available to in-person hearings.[4]

Inter alia, the survey pinpointed the wish of the people and exhibited their opinion on virtual arbitration hearings. When posed with the question of procedural delay and scheduled hearing dates which would be hampered as a result of this pandemic, 79% surveyors opted for advancing with virtual hearing on the pre-decided date rather than uprooting the process and causing a procedural delay, 16% opted for postponing the hearing and 4% opted for an award to be delivered based on the documents submitted in front of the Tribunal.[5] So much so, that 40% of arbitrators said they would do without an oral hearing for any procedural matter[6] and 87% would prefer to hold a virtual hearing if an in-person hearing is not an alternative.[7]

It even highlighted the advantages of virtual hearings with 65% going for more benefits of more available dates for hearing, 58% highlighting greater efficiency through use of technology, 55% opting for greater procedural and logistical flexibility, 34% choosing less environmental impact compared to in-person hearings inter alia.[8] Speaking of disadvantages, 40% each chose multiple time zones issues and harder in-between hearing conversations between client and counsel, respectively. 38% stated concern over controlling their witnesses and their credibility, 35% each over technical malfunctions and screen fatigue respectively. Confidentiality and cybersecurity also found 30% of people voting for it as a concern for virtual arbitration. 27% and 15% of the people voted for difficulty in reading arbitrators and other participants and expressed concern on arbitrator’s ability to confer during sessions respectively. Last but not the least ethical or procedural issues and enforcement of awards stood at 11% and 8% respectively.[9]

It is clearly visible from the above survey that virtual arbitrations are not the pariah as they are made out to be. Innovation is termed as need of this hour and in hindsight, by hiding behind the curtain of a pretend pro-arbitration stance, India has basically shot themselves in the foot.

Procedural framework for arbitrations: The rudiment of all dispute resolution

A concrete foundation for a prospective arbitration is actualised via the legal framework that is made applicable to it. It is of paramount significance that the governing/procedural law, substantive law of the contract and the seat is selected as per the peculiar requirements of each party at the time of drafting of the arbitration clause or agreement. India has been taking leaps to strengthen its own procedural framework so as to advance India’s ease of doing business rankings and establish the nation as a growing hub of alternate dispute resolution (hereinafter “ADR”). The Arbitration and Conciliation (Amendment) Act, 2015[10] (providing time limitations, fast-track procedures, narrowing scope of public policy, etc.), the Arbitration and Conciliation (Amendment) Act, 2019[11] (providing for the courts to make reference to certain arbitral institutes, formation of the Indian Arbitration Council, mandating confidentiality, etc.) and the Arbitration and Conciliation (Amendment) Act, 2021[12] (removing qualifications for empanelling as arbitrator) have been notified by the Government. The State is cognizant of institutes like International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC), London Court of International Arbitration (LCIA), Australian Centre for International Commercial Arbitration (ACICA), International Centre for Settlement of Investment Disputes (ICSID), etc. that have tried to minimise disruptions from the pandemic by issuing relevant virtual protocols. There is much to learn from these soft law instruments and these can be used as guiding principles while creating the Indian arbitral framework.

Covid-19 and arbitral best practices

With the onset of the Covid pandemic, arbitral friendly nations and institutions perceived the inevitability of the evolution of virtual hearings and accepted this challenge with utmost compassion. Choosing the right arbitral institution with facilities such as e-filing of documents, live help-desk features, panel of emergency arbitrators, panel of experts on various subjects, protocols for online dispute resolution, cybersecurity policies, etc. would solve half the dispute at hand. Many of these institutes like Singapore International Arbitration Centre, World Intellectual Property Organisation (WIPO), etc.  have also been using, third-party management services such as those of Maxwell Chambers to meet their logistical needs through curated meeting rooms, breakout rooms, screen-sharing facilities, etc.

Timely case management conferences to determine procedure and choosing the right meeting platform are the cornerstone of a successful arbitral session.[13] Necessity is the mother of invention and India needs to provide impetus for the creation of platforms like Cisco Webex, Zoom, etc. with end-to-end encryption under its Make in India and Digital India initiatives. Online meeting etiquette dictates that meeting time be decided keeping in mind the difference in time zones (if any)[14] of the parties, giving proper notice, providing a list of participants who will be present in the meeting and sticking to the agenda of the meeting.[15]

Speedy and complete justice can be guaranteed by tweaking procedure to include more partial awards for different issues, accepting only documentary submissions for adjudicating upon issues and no evidence[16], allowing very limited arguments on certain contentions,[17] identifying issues that can be resolved without witness statement or expert evidence, etc.[18] A documents-only procedure as adopted by SIAC[19] or use of Redfern Schedule for limiting documentary production[20] are suitable examples of a hybrid procedure. The only way to conceive virtual arbitrations in India is through digitisation, both in terms of procedure adopted in the arbitration and in working of appellate court. Arbitral awards in India have to be rendered in writing[21], have to bear the arbitrators’ signatures[22], have to be delivered to the parties[23] and have to be submitted to Court in order to be recognised and enforced. However, Section 5 of the Information Technology Act, 2002[24] (hereinafter “the IT Act”) provides that a digital signature has the same effect as that of a paper signature and thus, digitally signed copies/scanned copies sent via e-mail[25] and original copies sent via post (as is being done by the leading arbitral institutes[26]) both can be filed in Court for enforcement of the award.

Legal and ancillary issues that converge in virtual arbitrations: Can they be dealt with?

Various challenges may be posed in virtual arbitrations but the authors herein have discussed some core issues to exhibit how they can be dealt with effectively by the parties, Tribunal and the appellate courts. The fundamental principle of each solution is that every virtual arbitration will endorse mutual consent juxtaposed with party autonomy, to ensure equity.

I. Accessibility to internet services and technology

Virtual arbitrations in the time of a pandemic will go on to secure justice for all as enshrined under Article 39-A of the Constitution.[27] However, as of now, only 55% of the Indian population has access to internet[28] which is now a protected right under Article 19 of the Constitution.[29] Only 23% of the urban and 4% of the rural population possesses computers,[30] which creates obstacles in accessibility to technology for virtual hearings. In the same way, certain hardware and infrastructural requirements are also supposed to be met.[31] Although infrastructure comprising hardware, LAN, DG set, UPS, internet connectivity and CIS software is available in the premises of almost all the lower courts, their usage has to be completely overhauled. E-governance initiatives in India, recognising the lacuna of accessibility of internet services and technologies, creation of more common service centres (CSS) and legal aid cells around the country and promotion of institutionalisation of arbitration can plug these administrative loopholes and allow virtual arbitrations to flourish in India.

II. Arbitrability of complex disputes

While simple contractual matters may easily be dealt with in virtual arbitrations, multi-party matters with multiple claims and voluminous evidence may render the process inaccessible.[32] While considering resolution of complex disputes the Supreme Court held that, “There appears to be need to consider categories of cases which can be partly or entirely concluded ‘online’ without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated.”[33] Modified procedures such as considering the nature of the dispute before passing an order/direction for e-disclosure, retention or preservation of e-documents[34] will have to be made the norm. Therefore, wherever possible, virtual recourse must be sought.

III. Technological complexities

Videoconferencing facilities have been set up across various Benches of the Income Tax Appellate Tribunal (ITAT) such as Ahmedabad, Delhi, etc., turning them into e-courts,[35] and an e-filing portal has been instituted for the ITAT.[36] Digital Negotiable Instruments Courts have been set up by the Delhi High Court’s State Court Management Systems Committee (SCMSC) for disposal of cheque dishonour cases.[37] These examples are testament to the fact that if proper protocols and logistics are adopted, virtual arbitrations can be made a reality too.

The key is to conduct training/orientation sessions for the parties, arbitrators, etc. to gauge the features of the meeting platform such as chat and breakout features and to families themselves with trouble-shooting features of the meeting platform.[38] Adequate training of judicial officers in computerisation is necessary and is underway,[39] although it needs to be ramped up exponentially. Similarly, the SIAC has been training a number of their counsel in the Secretariat to provide technological support.[40] Thus, even though differing technical capabilities may complicate the inception of virtual hearings,[41] user-friendly platforms, proper training and spreading awareness about e-initiatives can help in navigating through them.

A “data disruption” and “meeting disruption” policy will cater to technological issues, so that parties are not excluded from any part of the hearing without their consent.[42] These include internet connectivity issues, dropped calls, audio-video disruption, etc.

IV. Cybersecurity, privacy and data protection

Various cybersecurity protocols such as ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration (2020 Edition) can be referred to secure safety of the parties. A prior agreement on the participants allowed into the meeting, proper identification and verification of participants done before the commencement of the virtual hearing, etc. will ensure that there is no breach of trust amongst the parties involved.

The right to privacy being a fundamental right in India, private information disseminated during such proceedings must be handled with caution. The protocols provided under the Personal Data Protection Bill, 2019[43] and the Personal Data Protection Bill, 2018 and the EU General Data Protection Regulation (“GDPR”) can be followed for limited processing, storage, transmission and erasure of information for all principals. Express consent for processing information and record of said processing will rein in data protection and privacy concerns. Password protected and secured personal networks can be accessed for internet connectivity, rather than public networks. Filing of documents, correspondence and posting of orders in e-format can be done through secure online channels/dockets[44], on a cloud service,[45] through a licence fee-based documents sharing platform, so that it is accessible to all parties, as is their right.[46]

V. Confidentiality

Section 42-A, added by the 2019 Amendment Act imposes data confidentiality obligations on the parties and the arbitrator. Confidentiality, an implied aspect of arbitration,[47] may be achieved by the arbitrator by binding all parties and participants involved to a confidentiality undertaking. Adopting a confidentiality clause or rules of a designated arbitration service provider that require specified confidentiality levels, can also have the same effect. Professional meeting software can be used to ensure meetings are end-to-end encrypted and are not infiltrated by Trojan horses or bugs and have provisions of breakout rooms for privileged communication.

VI. Admissibility and veracity of virtual evidence

The definition of “evidence”[48] under the Indian law includes all statements made by a witness in  court and documents, including e-documents (they are legally recognised as records[49]) produced in court. The Supreme Court has held that evidence recorded in videoconferencing “would be as per procedure established by law”[50] and therefore, would be well within the periphery of due process of law. In fact, very recently, the Delhi High Court asked appearing counsel to submit video recordings along with concise documents containing their arguments to adjudicate upon a matter virtually.[51]

So long as the accused and/or his pleader are present while the evidence is recorded by videoconferencing, the evidence is said to be taken in the “presence” of the accused[52] and will be admissible. If the videoconference is set up in the presence of the Judge himself, the requirements of recording evidence under Sections 274[53] and 275[54] of the Code of Criminal Procedure, 1973 will be fulfilled too.[55] The natural corollary, ergo, is to apply these ratio decidendi to virtual arbitrations as well, as they are ejusdem generis to court proceedings. Commissions issued by the courts under CrPC have been permitted to record evidence of unavailable witnesses, through video conferencing.[56] Similarly, the court may issue commissions under the Arbitration Act[57] to provide electronic evidence to the Tribunal and penalties/disadvantages may be imposed on the persons failing to attend them.[58]

VII. Witness examinations

India is not completely amiss of the merits of virtual examinations and has allowed them in the past.[59] It has been stated that videoconferencing would allow seeing the witness better, observing their demeanour, replaying or rehearing their deposition and testimony.[60] Witness statements and their examination must be sought on live meeting, under oath[61] and in the presence of the learned arbitrator and relevant court officers, after seeking proof of identity of the witness. All relevant exhibits and documents being used in the process of examination must also be provided to the opposing party prior to the commencement or shared at the time of the hearing with the opposing party[62] and to the witness for their perusal.[63] If questions put to the witness and the answers given by them are typed by a stenographer and made visible on the screen, it will ensure transparency in the process.[64] Reasonable opportunity must be given to the counsel to object to questions and statements put to their witnesses.

The Tribunal must not conduct the witnesses examination or allow adduction of evidence in the absence of parties, unless the parties have otherwise chosen to remain absent, despite proper notice.[65] Despite the concerns surrounding virtual arbitrations, they work to eliminate visual, behavioural and verbal bias that is created in the mind of the Tribunal and put the spotlight solely on the testimony presented.

VIII. Witness coaching

To ensure that the witness is not coached/prompted, a party may require its duly empowered legal representative to be present at the location of the witness, upon having sought the permission of the Tribunal. For a witness outside India, an officer of the Indian Consulate/Embassy may be placed in the room with the witness.[66] Moreover, the witness may be asked to show his surroundings via camera to prove that there is no one else present with him.[67] He should not be allowed to confer with his counsel,[68] use virtual backgrounds or use electronic devices other than the computer during the hearing.[69]

IX. Challenge to proceedings

If awards pronounced in virtual arbitrations are challenged under the garb of unfair treatment of parties or the public policy umbrella, the credibility of such arbitrations is thrown out the window. A work-around can be for parties to agree to not challenge the award or seek its annulment on the ground that the proceedings were not held in-person.[70] Moreover, parties are estopped from challenging a mutually decided procedure[71] and strict interpretation of public policy[72] will render such challenges infructuous in the court of appeal. Furthermore, even the Supreme e-Committee draft rules suggest that proceedings conducted by way of videoconferencing are judicial proceedings.[73]

X. Costs

As per Section 31-A of the Act, all expenses incurred in connection with the arbitral proceedings are included in the definition of “costs” and as a general rule, the losing party bears such costs, unless there is an agreement between the parties stating differently. Some protocols require the requesting party to bear costs for videoconferencing facilities,[74] whereas some mandate equal cost sharing.[75] The Tribunal may also refuse the request to use novel technology upon an analysis of the unreasonable financial burden it lays down on parties.[76]

XI. Due process

Due process holds the Government subservient to the law of the land and protects individuals from the excesses of State.[77] Conscious use of technology like teleconferencing and videoconferencing should be encouraged as they can replace the formal physical settings and manifest into a more efficient and smoother arbitral process.[78]

The Arbitration and Conciliation Act, 1996[79] (hereinafter “the Act”) or the 1985 UNCITRAL Model Law on International Commercial Arbitration[80] on which it is based, have no overt references to virtual arbitrations. Section 18 of the Act only talks about the treatment of parties with equality and the provision of adequate opportunity to present their case, in line with the principles of natural justice. The juristic principle of audi alteram partem is enshrined under Section 18 and the principle constitutes a fundamental policy of Indian law.[81] Thus, it only needs to be ensured that:

(i) There is availability of proper internet and infrastructure for all the parties involved that provides them a sufficient opportunity to argue their case.

(ii) No party is heard in the absence of the other as it would constitute a violation of fundamental principles of natural justice.[82]

(iii) Real-time transcripts or video records of the proceedings[83], will also be available to the differently abled.

(iv) Interpreters will be used, whether in a staggered manner or simultaneously.[84]

Section 19(2) gives the parties autonomy to choose the procedure to be followed in the proceedings, which could be virtual or physical hearings. If a procedure is not agreed to, Section 19(3) mandates the Tribunal to conduct proceedings in the manner it considers “appropriate”, ex aequo et bono, after giving due reasoning[85] and ensuring that requirements under Section 18 are met.[86] Thus, virtual hearings may be conducted by the Tribunal either via oral hearings or on the basis of documents and other materials submitted by the parties.[87] Brief, coherently structured written submissions also reduce the likelihood of error and help in saving time.[88] Since Section 24(3) ensures full disclosure of applications filed, reports and documents referred to etc. between the parties and the arbitrator, the mandate of due process will definitely be upheld.

Objections to virtual hearings

Before taking such a decision, Tribunals are to remain flexible[89], consider all the circumstances and consequences of the Covid-19 pandemic, the pertinent reasons for proceeding with the virtual hearing, the nature and complexity of the case, adequate time for the parties to prepare, enforceability of such an award and adopt procedures that are not contrary to the agreement between the parties.[90] An opportunity will be given to the objecting party to raise their concerns and the Tribunal will address said concerns and record reasons for its decisions.[91]

Section 20(3) of the Act allows the Tribunal to “meet at any place it considers appropriate for consultation.”[92] Similarly, a switch from the “physical venue” to the “online virtual venue” can also be done if it is deemed necessary. In Adani Ennore Container Terminal (P) Ltd. v. Kamarajar Port Ltd.,[93] the Madras High Court ordered the parties to the dispute to have a Zoom meeting to see if there is any scope for mediation between them.

Section 24 allows documentary or oral hearings, but does not mandate in-person hearings and cannot be equated to the latter necessarily.[94] “In person” may simply mean a live, adversarial exchange which may be done virtually.[95] Evidence taken over videoconferencing also suffices the requirements under Section 273[96] of the Code of Criminal Procedure, 1973 as the witness is perfectly visible. Electronic discovery of documents is permissible under Section 24 and the scope of the discovery can be limited to what is strictly necessary.[97] This is useful when conducting virtual arbitrations and is a widely accepted practice.[98]

Therefore, it can be deciphered from the above that not only is it possible to conduct virtual arbitrations, but they also have inherent benefits that will reflect in any such proceeding.

Overview and analysis

Virtual arbitration in essence cater to the needs of a section of the society that are completely forgotten in conventional arbitrations in India — the differently-abled individuals. Chairperson of the e-Committee of the Supreme Court recently wrote a letter to the Chief Justices of the High Courts to make provisions for the disabled and physically challenged in terms of filing cases, attending proceedings in an accessible manner, etc.[99]  Accessibility is a natural corollary to Articles 14, 19(1)(g) and 21 of the Constitution and virtual arbitrations help solve the issue of accessibility for all. Meetings can be accessed from the comfort of a home and interpreters/translator/sign language experts can provide specialised aid to the parties/counsel to make their submissions,[100] which may not be possible in an open, in-person hearing.

Effective access to justice is a part of the basic structure doctrine, conceptualised by the Supreme Court.[101] Under the 1996 Act, disposal of both domestic and international commercial arbitrations disputes is time-bound[102] which propels speedy justice in India. However, due to the pandemic, conventional arbitrations have been adjourned sine die which is against the mandate of the Act. Complications may come as part and parcel with virtual hearings, but the solutions are equally ubiquitous. Early case management conferences, a widely accepted practice in all leading arbitral institutions and can help determine the applicable procedure, rules, logistics and clarify the concerns of the parties towards this revolutionary virtual experiment. Prospective arbitrators, technical specialists, etc. can be trained at par with international standards[103] and empanelled in alternate dispute resolution (hereinafter “ADR”) Committees set up by the High Courts in their jurisdiction. The 2020 Ordinance promulgated by the President has also omitted the Eighth Schedule to the Act which provided for minimum qualifications to become an arbitrator, thereby, opening the door for everyone to set foot in the realm of arbitrations.[104] Gaps in technological knowhow continue to challenge the proposed scheme of virtual ad hoc arbitrations. The learning curve is steep but proper coaching, awareness about third-party management services and institutional arbitrations, grant-in-aid for infrastructural costs and good faith between the parties can plug the administrative loopholes that exist in this realm. There also have been various discussions about use of artificial intelligence to aid the user with management and automated service processes.[105] Various protocols have been effectuated to cater to cybersecurity issues,[106] such as the ICC issued ICC-NYC Bar Protocol[107] or the IBA issued Cybersecurity Guidelines.[108]

It is rightly said that justice delayed is justice denied. Therefore, rather than running away from the problem, we must face the challenge head on and with utmost vigour. Arbitration matters that have been stuck in oblivion due to the pandemic can finally be put to rest by the mutual cooperation of the parties[109] and thus, it is necessary that all stakeholders come together and support each other to make virtual arbitrations a new reality.


Associate at Jurisconsultus, Advocates, Business & Commercial Solicitors. Author can be reached at aafreenchoudhary1@gmail.com.

†† LLB 2021, Lloyd Law College, Greater Noida can be reached at dhruv.srivastava4@gmail.com 

[1]Mohamed S. Abdel Wahab, Chapter 1: Dispute Prevention, Management and Resolution in Times of Crisis between Tradition and Innovation: The COVID-19 Catalytic Crisis in Maxi Scherer, Niuscha Bassiri, et al. (eds.), International Arbitration and the COVID-19 Revolution.

[2] See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog.

[3]White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf>.

[4] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 21.

[5] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 20.

[6] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 14.

[7] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 22.

[8] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 23.

[9] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, at 24.

[10] Arbitration and Conciliation (Amendment) Act, 2015.

[11]  Arbitration and Conciliation (Amendment) Act, 2019.

[12] Arbitration and Conciliation (Amendment) Act, 2021.

[13]In a recent letter written to Justice Dr D.Y. Chandrachud, the Madhya Pradesh State Bar Council has highlighted the glitches, disruptions, heavy data load and complicated user interface of the “Jitsi” platform which is being used by courts all across India to conduct virtual hearings. See Khadija Khan, Jitsi not User-Friendly, Shift Madhya Pradesh High Court Hearings to Zoom/Webex: M.P. Bar Council Chairman writes to Justice D.Y. Chandrachud (29-6-2021, 7.30 p.m.), Jitsi not User-Friendly, Shift Madhya Pradesh High Court Hearings to Zoom/ Webex: M.P. Bar Council Chairman Writes to Justice D.Y. Chandrachud (barandbench.com).

[14]Indian Arbitration Forum, Protocol on Virtual Hearings for Arbitrations, Para 2(a)(ii), p. 2, September 2020 accessed at <https://indianarbitrationforum.com/wp-content/themes/iaf/assets/IAF-Protocol-on-Virtual-Hearings-for-Arbitrations-Oct-2020.pdf> (indianarbitrationforum.com).

[15]International Chamber of Commerce, ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the Covid-19 Pandemic, Para 8, p. 2, 9-4-2020 accessed at <https://iccwbo.org/content/uploads/sites/3/2020/04/guidance-note-possible-measures-mitigating-effects-covid-19-english.pdf> (iccwbo.org).

[16] Satpal P. Malhotra v. Puneet Malhotra, 2013 SCC OnLine Bom 689.

[17] Sukhbir Singh v. Hindustan Petroleum Corpn. Ltd., 2020 SCC OnLine Del 228; Also see Sohan Lal Gupta v. Asha Devi Gupta, (2003) 7 SCC 492.

[18] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdfPara 8, p. 2.

[19] Singapore International Arbitration Centre, SIAC Covid-19 Frequently Asked Questions (FAQs) (30 June, 4.39 p.m.), SIAC Covid-19 Frequently Asked Questions (FAQs) <www.siac.org.sg/faqs/siac-covid-19-faqs>.

[20] See Union of India v. Reliance Industries Ltd., 2018 SCC OnLine Del 13018; also see, Thiess Iviinecs India v. NTPC Ltd., 2016 SCC OnLine Del 1819.

[21] The Arbitration and Conciliation Act, 1996, S.  31(1).

[22] The Arbitration and Conciliation Act, 1996, S. 31(1).

[23] The Arbitration and Conciliation Act, 1996, S. 31(5).

[24] Section 5, Information Technology Act, 2002.

[25] Delhi High Court, Guidance Note for Conducting Arbitration Proceedings by Video Conference 2020, Para 2.3, p. 2, (30 June, 4.50 p.m.), Public Notice_QS9BF6S2KSA.PDF (delhihighcourt.nic.in).

[26] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at < http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf>.

[27]Constitution of India, Art. 39-A.

[28] Niti Aayog and United Nations, SDG India Index & Dashboard 2020-21 Partnerships in the Decade of Action, p. 136 (1-7-2021, 4:00 p.m.), accessed at <https://www.niti.gov.in/writereaddata/files/SDG_3.0_Final_04.03.2021_Web_Spreads.pdf>.

[29] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.

[30] National Statistical Office, Key Indicators of Household Social Consumption on Education in India, NSS 75th Round (July 2017–June 2018) (1-7-2021, 4.21 p.m.),  <http://mospi.nic.in/sites/default/files/publication_reports/KI_Education_75th_Final.pdf> (mospi.nic.in)

[31]72% of the judicial officers emphasised the development of better infrastructure and 8% wanted the internet facilities to be improved. See National Council of Applied Economic Research, Evaluation Study of eCourts Integrated Mission Mode Project (1-7-2021, 5.41 p.m.), Evaluation Study of eCourts Integrated Mission Mode Project <www.doj.gov.in/sites/default/files/Report-of-Evaluation-eCourts.pdf>

[32]TadasVarapnickas, Will COVID-19 Revolutionize Arbitration? What’s Next for Business and Arbitration?, TGS Baltic Webinar.

[33] Meters and Instruments (P) Ltd. v. Kanchan Mehta, (2018) 1 SCC 560.

[34] Chartered Institute for Arbitrators, Protocol for E-Disclosure in International Arbitration, International Arbitration Protocol, Art. 3.1, p. 3  accessed at <www.ciarb.org/media/1272/e-iscolusureinarbitration.pdf>.

[35] Special Correspondent at The Hindu, e-Court Launched at Income-Tax Appellate Tribunal in Chennai, (1 July 7.21 p.m.),  The Hindu.

[36] Press Information Bureau, Law Minister Shri Ravi Shankar Prasad Launches “itat e-dwar”, an E-Filing Portal of Income Tax Appellate Tribunal. Portal will Enable Online Filing of Appeals, Applications, Documents, etc. by Various Parties. Cases of Income Tax Appellate Tribunal should be Integrated in National Judicial Data Grid: Shri Ravi Shankar Prasad (1-7-2021, 3.34 p.m.), Press Information Bureau <www.pib.gov.in/PressReleaseIframePage.aspx?PRID=1730394>

[37] Delhi High Court, Digital NI Act Courts, (1-7-2021, 2.20 p.m.), Digital NI Act Courts <www.delhidistrictcourts.nic.in/digitalnicourts.html>

[38] International Institute for Conflict Prevention and Resolution, CPR Model Procedural Order for Remote Video Arbitration Hearing, Para B(2) accessed at NEW: CPR’s Annotated Model Procedural Order for Remote Video Arbitration Proceedings | CPR International Institute for Conflict Prevention & Resolution Inc. (cpradr.org); also see White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf >  Para B(ii) and (v), pp. 2, 9.

[39] Ministry of Law and Justice, Initiatives Towards Computerisation of Courts, Initiatives Taken by the Ministry of Law & Justice During the Two Years of the Present Government (1-7-2021, 5.35 p.m.), accessed at <https://lawmin.gov.in/sites/default/files/2year-achi.pdf> (lawmin.gov.in).

[40]Singapore International Arbitration Centre, Open Letter from SIAC President (1-7-2021, 3.15 p.m.), (Open Letter from SIAC Court President) Arbitration at SIAC during COVID-19.pdf

[41]Gabrielle Kaufmann-Kohler and Thomas Schultz, The Use of Information Technology in Arbitration, Jusletter, December 2005, at 62, available at <http://lk-k.com/wp-content/uploads/The-Use-of-Information-Technology-in-Arbitration.pdf> (hereinafter “Kaufmann-Kohler & Schultz”); Christoph Liebscher, The Healthy Award: Challenge in International Commercial Arbitration 243-273, 344 (2003).

[42] Rudramuni Devaru v. Shrimad Maharaj Niranjan Jagadguru, 2005 SCC OnLine Kar 173.

[43] Personal Data Protection Bill, 2019.

[44] World Intellectual Property Organisation, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr>

[45] Seoul International Dispute Resolution Center and KCAB International, Seoul Protocol on Videoconference in International Arbitration, Art. 4.3, 18-3-2020 accessed at <www.kcabinternational.or.kr/user/Board/comm_notice_view.do?BBS_NO=548&BD_NO=169&CURRENT_MENU_CODE=MENU0025&TOP_MENU_CODE=MENU0024>; also see Hogan Lovells Protocol for the Use of Technology in Virtual International Arbitration Hearings, Art. 3.2(a), p. 7, April 2020 accessed at  <https://www.hoganlovells.com/~/media/hogan-lovells/pdf/2020-pdfs/2020_04_09_hogan_lovells_international_arbitration_digital_hearing_protocols.pdf> (hoganlovells.com)

[46] Ssangyong Engg. and Construction Co. Ltd. v. National Highways Authority of India, (2019) 15 SCC 131.

[47] Malaysian Newsprint Industries Sdn Bhd v. Bechtel International Inc., (2008) 5 MLJ 254.

[48] The Evidence Act, 1872, S. 3.

[49] The Information Technology Act, 2000, S. 4.

[50] State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601.

[51] Sat Prakash Soni v. Union of India, 2020 SCC OnLine Del 2027.

[52] The Code of Criminal Procedure, 1973, S. 273.

[53] Section 274 CrPC.

[54] Section 275 CrPC.

[55] State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601, para 19.

[56] State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601, para 20.

[57] Arbitration and Conciliation Act, 1996, Ss. 27(4) and (6).

[58] Arbitration and Conciliation Act, 1996, S. 27(5).

[59]International Planned Parenthood Federation v. Madhu Bala Nath, 2016 SCC OnLine Del 85; also see Twentieth Century Fox Film Corpn. v. NRI Film Production Associates (P) Ltd., 2003 SCC OnLine Kar 22.

[60]World Intellectual Property Organization, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr> at paras 19 and 20.

[61] Same protocol followed by the Bombay High Court in the videoconferencing in Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin, 2020 SCC OnLine Bom 7551.

[62] Special Correspondent at The Hindu, E-Court Launched at Income-Tax Appellate Tribunal in Chennai, (1 July, 7.21 p.m.), E-Court Launched at Income-Tax Appellate Tribunal in Chennai — The Hindu; Hogan Lovells , Art. 3.2(b), p. 7.

[63]See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog; Hogan Lovells  at Para 5(g), p. 9.

[64] Same protocol followed by the Bombay High Court in videoconferencing in Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin, 2020 SCC OnLine Bom 7551; also see White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf>  Para E(iv).

[65] Rudramuni Devaru v. Shrimad Maharaj Niranjan Jagadguru, 2005 SCC OnLine Kar 173.

[66] See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog at Paras 5(i) and (iii), p. 10.

[67] See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog at Para 5(d)(iii), p. 9.

[68] Africa Arbitration Academy, Africa Arbitration Academy Protocol on Virtual Hearings in Africa, Para 2.1.4, p. 7, April 2020 accessed at <https://www.africaarbitrationacademy.org/wp-content/uploads/2020/04/Africa-Arbitration-Academy-Protocol-on-Virtual-Hearings-in-Africa-2020.pdf>  (africaarbitrationacademy.org).

[69] Recently, the Delhi District Court allowed a mutual application moved on behalf of the parties for the recording of evidence through videoconferencing. Guidelines were put forth by the court to ensure that the witness is not being tutored while evidence is being recorded and in case there appears to be any prompting on the side of the witness, or if he deliberately keeps disrupting his internet connection, the proceedings will be adjourned. This can be applied to virtual arbitrations.  See Kanwal Nain Singh Mokha v. Rekha Khurana, CC No. 1924 of 2016, decided on 26-6-2021 (Delhi District Court).

[70] The Information Technology Act, 2000, S. 4; also see World Intellectual Property Organisation, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr> at Art. 2.10, p. 5.

[71]Jagjeet Singh Lyallpuri v. Unitop Apartments and Builders Ltd., (2020) 2 SCC 279.

[72]Govt. of India v. Vedanta Ltd., (2020) 10 SCC 1; also see Ssangyong Engg. and Construction Co. Ltd. v. National Highways Authority of India, (2019) 15 SCC 131; also see Associate Builders v. DDA, (2015) 3 SCC 49.

[73] E-Committee of the Supreme Court of India, Draft Video Conferencing Rules, Para 3(ii) (1-7-2021, 6.20 p.m.) accessed at <https://cdnbbsr.s3waas.gov.in/s388ef51f0bf911e452e8dbb1d807a81ab/uploads/2020/08/2020082629.pdf> (s3waas.gov.in).

[74] National Statistical Office, Key Indicators of Household Social Consumption on Education in India, NSS 75th Round (July 2017–June 2018) (1-7-2021, 4.21 p.m.),  <http://mospi.nic.in/sites/default/files/publication_reports/KI_Education_75th_Final.pdf> (mospi.nic.in) at Art. 9.1.

[75]World Intellectual Property Organisation, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr> at Art. 2.9(f), p. 5.

[76]International Chamber of Commerce, ICC Commission Report Information Technology in International Arbitration, Para 1.2, 2017 accessed at <icc-information-technology-in-international-arbitration-icc-arbitration-adr-commission.pdf> (iccwbo.org).

[77] Maneka Gandhi v. Union of India, (1978) 1 SCC 248 and Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248 have read the due process doctrine into Art. 21, making them in severable parts of each other.

[78]Law Commission of India Report No. 246, Amendments to the Arbitration and Conciliation Act, 1996, Point 16, p. 13 (2-7-2021, 8.40 p.m.)

[79] Arbitration and Conciliation Act, 1996.

[80] UNCITRAL Model Law on International Commercial Arbitration, 1985.

[81] Associate Builders v. DDA, (2015) 3 SCC 49.

[82] Sulaikha Clay Mines v. Alpha Clays, 2004 SCC OnLine Ker 79.

[83] E-Committee of the Supreme Court of India, Draft Model Rules for Live-Streaming and Recording of Court Proceedings, Para 10, p. 13 (30-6-2021, 1.15 p.m.), Rules on Live Streaming (mygov.in); also see Hague Conference on Private International Law, Guide to Good Practice on the Use of Video-Link under the 1970 Evidence Convention, p. 98 (30-6-2021, 12.24 p.m.) <https://assets.hcch.net/docs/569cfb46-9bb2-45e0-b240-ec02645ac20d.pdf> (hcch.net); also see Kanwal Nain Singh Mokha v. Rekha Khurana, CC No. 1924 of 2016, decided on 26-6-2021 (Delhi District Court).

[84] World Intellectual Property Organisation, WIPO eADR Practices (1 July, 4.41 p.m.), WIPO eADR Practices <www.wipo.int/amc/en/eadr/wipoeadr> at Art. 3.5, p. 7.

[85] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf> at Para D(iii).

[86] Sukhbir Singh v. Hindustan Petroleum Corpn. Ltd., 2020 SCC OnLine Del 228.

[87] The Arbitration and Conciliation Act, 1996, S. 24(1).

[88] Kiran Chhabra v. Pawan Kumar Jain, 2011 SCC OnLine Del 803.

[89] Narendra Kumar Anchalia v. Krishna Kumar Mundhra, 2002 SCC OnLine Cal 485.

[90] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf> at Paras 18 and  22.

[91] See Covid-19, Kluwer Arbitration Blog (26-6-2021, 12.05 p.m.), COVID-19 Archives — Kluwer Arbitration Blog at Para 2, p. 2.

[92]In line with this, the venue of arbitration was changed from Kuala Lumpur, Malaysia to London, due to the breakout of the Severe Acute Respiratory Syndrome (SARS) virus, which was designated as a mere physical change in Videocon Industries Ltd. v. Union of India, (2011) 6 SCC 161.

[93] 2020 SCC OnLine Mad 2708.

[94] Yvonne Mak, Do Virtual Hearings Without Parties’ Agreement Contravene Due Process? The View from Singapore (8-7-2020, 7.15 p.m.), Do Virtual Hearings Without Parties’ Agreement Contravene Due Process? The View from Singapore — Kluwer Arbitration Blog; <http://www.scconline.com/DocumentLink/Dgqf5o4W>.

[95] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf> at Para 23.

[96] Section 273 CrPC.

[97] Union of India v. Reliance Industries Ltd., 2018 SCC OnLine Del 13018.

[98]Pyrrho Investments Ltd. v. MWB Property Ltd., 2016 EWHC 256; Da Silva Moore v. Publicis Groupe SA, 11 Civ 1279 (ALC) (AJP) (SDNY 2012) Judge Peck; Irish Bank Resolution Corpn. v. Quinn, 2015 IECH 175.

[99] ANI, Need to Create Accessible Infrastructure for Lawyers, Litigants, with Disabilities: Justice D.Y. Chandrachud to High Courts (29-6-2021, 12.40 p.m.), Need to Create Accessible Infrastructure for Lawyers, Litigants with Disabilities: Justice D.Y. Chandrachud — The New Indian Express.

[100]Same protocol followed by the Bombay High Court in the videoconferencing in Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin, 2020 SCC OnLine Bom 7551 at Para 5.9.3.

[101]Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 SCC 225 .

[102] Arbitration and Conciliation Act, 1996, S. 29-A.

[103] See New Delhi International Arbitration Centre Act, 2019, S. 29(1), No. 17.

[104] The Arbitration and Conciliation (Amendment) Act, 2021, S. 4.

[105] Aditya Singh Chauhan, Future of AI in Arbitration: The Fine Line between Fiction and Reality (29-6-2021, 8.51 p.m.), Future of AI in Arbitration: The Fine Line between Fiction and Reality — Kluwer Arbitration Blog.

[106] White & Case, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World, accessed at <http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf>  at 14; also see Claire Morel de Westgaver, Cybersecurity in International Arbitration — A Necessity and An Opportunity for Arbitral Institutions (29-6-2021, 8.47 p.m.), Cybersecurity in International Arbitration – A Necessity and An Opportunity for Arbitral Institutions — Kluwer Arbitration Blog.

[107]ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration (2020 Edition) ICCA Reports n6-v4-A5-v4 (arbitration-icca.org).

[108]International Council for Commercial Arbitration, The ICCA-IBA Roadmap to Data Protection in International Arbitration accessed at ICCA-IBA Roadmap to Data Protection in International Arbitration: 2020 Edition (arbitration-icca.org).

[109]Kanwal Nain Singh Mokha v. Rekha Khurana, CC No. 1924 of 2016, decided on 26-6-2021 (Delhi District Court).

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Mohammad Rafiq, CJ. and Vijay Kumar Shukla, J., dismissed a PIL which was filed by the Nagrik Upbhokta Margdarshak Manch with a prayer that the Election Commission of India may be directed not to conduct bye-elections of Parliamentary Constituency of Khandwa and Assembly Constituencies of Prathvipur, Jobat and Rajgarh in the State of Madhya Pradesh and direct the respondents to conduct the bye-elections only after assessing the ground situation of coronavirus in the State.

Election Commission of India has filed reply to the writ petition stating that the Commission has reviewed the matter and has decided that due to outbreak of the second wave of Covid-19 in the country, it would not be appropriate to hold bye-elections till the pandemic situation significantly improves and conditions become conducive to hold these bye elections. A recently issued Press Note dated 04-09-2021 however stated that after taking into consideration the inputs and views of the Chief Secretaries of the concerned States and respective Chief Electoral Officers, the Commission has decided not to hold bye-elections in other 31 Assembly Constituencies and 3 Parliamentary Constituencies. However, considering the constitutional exigency and special request from State of West Bengal, it has decided to hold bye-election in 159 – Bhabanipur. Much stricter norms have been kept by the Commission as an abundant caution to safeguard from Covid-19 pandemic.

The Court stated that Article 324 of the Constitution is a reservoir of power for the Election Commission to act in such vacuous area where enacted laws make no provisions or make ‘insufficient provisions’ to deal with the situation confronting the Election Commission in the conduct of elections as held in catena of judgments referring to the judgment of Supreme Court in Mohinder Singh Gill v. The Chief Election Commissioner, (1978) 1 SCC 405; Kanhiya Lal Omar v. R.K. Trivedi, AIR 1986 SC 111; Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112.

The Curt further reiterated the paragraph from Special Reference No.1 of 2002, AIR 2003 SC 87 where it was categorically held that the decision regarding elections should not be interfered with as the Election Commission of India is best suited to decide the same.

“80. So far as the framing of the schedule or calendar for election of the Legislative Assembly is concerned, the same is in the exclusive domain of the Election commission, which is not subject to any law framed by the Parliament. The Parliament is empowered to frame law as regards conduct of elections but conducting elections is the sole responsibility of the Election Commission. As a matter of law, the plenary powers of the Election Commission can not be taken away by law framed by Parliament. If Parliament makes any such law, it would repugnant to Article 324.”

The Court while dismissing the PIL held that only the Election Commission of India is competent to decide as to when should the bye-elections to Parliamentary Constituency of Khandwa and Assembly Constituencies of Prathvipur, Jobat and Rajgarh should be held.[Nagrik Upbhokta Margdarshak Manch v. State of M.P., WP-15280-2021, decided on 22-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For the petitioner: Mr Dinesh Kumar Upadhyay

For the respondents/ State: Mr Pushpendra Yadav and Mr Siddharth Seth

Conference/Seminars/LecturesLaw School News

The Legal Centre for Women’s Welfare (LCWW), Tamil Nadu National Law University (TNNLU), Tiruchirappalli is organizing the National Conference on Interdisciplinary Perspectives on Women Migrant Workers and Law in India, virtually, on October 30th, 2021.

About the Organizer

TNNLU is located in the Srirangam Taluk of the Tiruchirappalli Corporation, formerly known as Trichinopoly. This institution of learning was established by the Government of Tamil Nadu by an Act of State Legislature (Act No. 9 of 2012) to provide quality legal education.

About Legal Centre for Women’s Welfare

The Centre was established in March 2020. The Centre is the brainchild of the Vice-Chancellor, Prof. V.S. Elizabeth, who is an expert in feminist jurisprudence and has a great concern regarding issues related to women. Law is an effective tool in bringing a change in society, hence the purpose of establishing the Centre is to transform society through changing the attitudes towards women and the status of women by working on Women and Law.

The Centre focuses on all issues related to women, broadly covering Violence against Women, the role of the State in empowering women, the social impediments faced by women and the role of law in addressing these issues.

Eligibility

Academicians, Legal Professionals, Research Scholars, PG & UG students of law and any other related social science disciplines.

Registration link: HERE

Sub-Themes

  1. Impact of COVID 19 on Women Migrant Workers
  2. Rights of Women Migrant Workers under the Indian Constitution
  3. Labour Rights of Women Migrant Workers
  4. Patterns and Determinants of Women Migrant Workers in India
  5. Psychological Issues faced by Women Migrant Workers
  6. Issues of Migrant Women Workers in Unorganised Sectors
  7. Problems of Persons with Disability amongst Women Migrant Workers
  8. Problems of Agency of Women Workers with regard to Migration
  9. Sexual Harassment and Women Migrant Workers
  10. Crimes against Women Migrant Workers
  11. International Instruments protecting the Women Migrant Workers
  12. Need for a Specialised Legal Framework for Protection and Empowerment of Women Migrant Workers in India
  13. Anthropological Perspectives of Migrant Women Workers
  14. The Role of the Government/State in Protection of Various Interests of Women Migrant Workers

The above sub-themes are only illustrative and the participants are free to write on any topic directly connected to the central theme of the Conference.

Research Paper Guidelines

  • Abstract: Not exceeding 300 words
  • Keywords: Maximum of 5
  • Full Research Paper: Should not be less than 3000 words
  • Font style & Size: Times New Roman & 12
  • Line spacing: Double & justified alignment
  • Endnotes: Times New Roman (size 10), Endnotes style: MLA 8th Edition
  • Co-authorship is allowed up to a maximum of 2 authors.

Abstract Submission Link: HERE

Official E-mail of the Conference: wmwconference2021@tnnlu.ac.in

Best Paper Awards

There will be cash awards for two of the best research papers, one in each category:

  1. Best research paper by a faculty member or other scholars
  2. Best research paper by a student

 

Fee Details

The following fee is payable by paper presenters and participants

  • For Students – Rs. 300
  • For Academicians/ Research Scholars – Rs. 500

Each co-author has to register themselves individually and pay the fees applicable individually.

Payment Details

Name of the Account Holder: Registrar TNNLU legal Centre for Women’s welfare

A/C No.: 30030110035443

Bank & Branch: UCO Bank, TNNLS Branch

MICR: 620 028 012

IFSC Code: UCBA0003003

Swift Code: UCBAINBB342

UPI ID: tnnlulegalcntr@ucobank

Important Dates

Last date for Abstract Submission – 15th September 2021

Intimation of Abstract Selection – 20th September 2021

Last Date for Registration – 30th September 2021

Full paper Submission – 15th October 2021

Conference Date – 30th October 2021

Contact Information

Ms. Shanthi Samandha. K, Convener

Assistant Professor (Law),

Tamil Nadu National Law University, Tiruchirappalli.

E-mail: samandha@tnnlu.ac.in

Phone: 09600037393, 09531977493

Mr. Nishant Kumar, Co-Convener

Assistant Professor (Law),

Tamil Nadu National Law University, Tiruchirappalli.

E-mail: drnishant@tnnlu.ac.in

Phone: 09958184809

Click here for the official brochure.

Official link: HERE

Case BriefsCOVID 19Supreme Court

Supreme Court: The Division Bench of L. Nageswara Rao and Aniruddha Bose, JJ., addressed the plight of children orphaned during Covid-19 pandemic. Lauding the steps taken by the Union and State governments to provide succour to the children in need, the Bench expressed,

“It is heart-wrenching to note that the survival of so many children is at stake. We are glad that the UOI and the State Governments / Union Territories have announced schemes to provide succour to the children in need. We have no doubt that the authorities concerned would leave no stone unturned to attend to the immediate basic needs of the crestfallen children.”

The catastrophe caused by the cataclysmic Covid- 19 had devastated many lives, especially children at a tender age who have lost their parents. Notably, more than lakh children have lost either or both parents during this pandemic. The Bench observed that satisfactory progress had been made by the executive in identification of the orphans and those children who had lost a parent during the pandemic. Preparation of Social Investigation Reports and Individual Care Plans was also on track. However, the Bench opined, the inquiries by CWCs need to be expedited to identify children in need of care and protection and immediate steps have to be taken to ensure that the benefits of schemes reach the needy children. The Bench emphasised that the welfare benefits should be provided not only to the children orphaned by Covid-19 but also to those children who had been orphaned during Covid-19.

Emphasising over Article 21A, the Bench stated that all children have a constitutional right to free and compulsory elementary education which is guaranteed by the Constitution. Therefore, the State is duty bound and is obligated to facilitate education for children.

To address the issue the Court had sought information from all the State Governments/Union Territories on following points:

  1. Identification of orphans and children who had lost either parent after March, 2020
  2. Stages of inquiries undertaken by the Child Welfare Committee (‘CWC’) in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘the Act’)
  3. Schemes announced by the State Governments/Union Territories for the benefit of such children and the implementation of those schemes
  4. Information relating to the education of the distraught children and their continuation in the schools in which they are studying for the present academic year.

The ASG, Ms Aishwarya Bhati submitted that the education of eligible children up to 18 years was sought to be provided for under the PM CARES For Children – Empowerment of COVID Affected Children, launched for support and empowerment of Covid-19 affected children. According to the said scheme, beneficiaries would be given admission in the nearest Kendriya Vidyalaya or in a private school as a day scholar. On admission of the child in a private school, fees as per the RTE norms would be given from the PM CARES fund. Moreover, the scheme also provided for covering the expenditure on uniforms, text books and notebooks.

Considering the submission made by the ASG that 2600 children eligible for benefits under the scheme had been registered by the State Governments and out of which 418 applications had been approved by District Magistrates, the Bench took notice of the delay on the part of District Magistrates in providing the approval, accordingly, the Bench directed District Magistrates to complete the process of approval of the remaining children whose names had been registered for the benefit of the PM CARES Fund.

The Bench also directed State governments to confer with private schools to waive the fee of the distressed children, who have lost either parent or both parents after March 2020 for the current academic year. The Bench added, in case, the private institutions are unwilling to effectuate 8 such waiver, the State Governments shall shoulder the burden of the fee.

Sensing the inevitable complications, the Bench clarified that after completion of the inquiries, the CWCs may identify those children who do not need care and protection and financial assistance from the States and such children need not be given the benefits announced by the State Governments.

Lastly, the Bench directed the CWCs to complete all pending inquiries within three weeks and State governments were asked to file Status reports within four weeks.[Contagion of Covid 19 Virus in Children Protection Homes: In Re, SMW(C) No.4 of 2020, decided on 26-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

COVID 19Hot Off The PressNews

Standard Operating Procedure for physical hearing (with hybrid option)


In continuation of directions already notified regarding the functioning of the Supreme Court of India, in the wake of the Covid-19 pandemic, more particularly through Circulars dated 14.03.2020, 23.03.2020, 30.08.2020 & 05.03.2021, and on consideration of the requests received from the Bar Associations, and on recommendations of the Hon’ble Judges Committee in that regard, the Hon’ble Chief Justice of India has been pleased to direct as follows :

  1. With a view to gradually facilitate resumption of physical hearing, the final hearing/regular matters listed on non-miscellaneous days may be heard in the physical mode (with hybrid option), as may be decided by the Hon’ble Bench, considering the number of parties in a matter as well as the limited capacity of the Court rooms; further, any other matter may be heard in physical mode on such days, if Hon’ble Bench directs likewise. All other matters, including those listed on miscellaneous days shall continue to be heard through video/tele- conferencing mode;
  2. At the discretion of the Hon’ble Bench, there may be break(s) during the hearings in Courtroom in physical mode, for a period of about 15 minutes, so that Courtroom may be sanitized, during which it is necessary that the entire Courtroom be vacated;
  3. Unless otherwise directed by the Hon’ble Bench, final hearing/regular matters where the number of Advocates for the parties are more than the average working capacity of the Court rooms, as per Covid-19 norms, i.e. 20 (approx.), per Courtroom at any given time, shall invariably be listed for hearing through video/tele-conferencing mode; however, in case the Hon’ble Bench directs hearing of such matters to be held through the physical mode, the appearance of the parties, whether by physical presence or through video/tele-conferencing, will be facilitated as per the directions of the Hon’ble Bench;
  1. In a matter listed for physical hearing (with hybrid option), one AOR [or his nominee], one Arguing Counsel and one Junior Counsel per party will be allowed entry; one registered Clerk per party, as may be chosen by the AOR, shall be allowed entry to carry paper- books/journals etc. of the Counsels upto the Court-rooms;
  2. In any such matter as may be listed for physical hearing (with hybrid option), all the Counsels appearing for one party can appear either through physical mode or through video/tele-conferencing; Advocate(s)-on-Record are required to register themselves on the SCI portal, and submit their preferences for appearing before the Hon’ble Court either through physical mode or through video/tele- conferencing mode within 24 hours/1:00 PM next day, as the case may be, after the publication of the Weekly List of Final Hearing/Regular matters;
  3. Once hearing through physical mode is opted by the AOR/petitioner- in-person, hearing through video/tele-conferencing mode to the party concerned will not be facilitated;
  4. The Entry of the counsels/parties into the HSZ to appear for physical hearing will be through daily “Special hearing passes” which will be issued by the Registry, on the basis of authorization by the concerned Advocate-on-Record on the portal, as indicated in S.No.5 above; (User guide is published separately)
  5. Multiple sets of one chair and table are being placed inside the Court Rooms, in the areas demarcated for Ld. Advocates and it shall be incumbent upon the users to maintain minimum prescribed physical distancing norms between each set, which should not be removed from their positions;
  6. Special Hearing Pass holders, upon completion of necessary formalities, online or otherwise as may be notified in due time, shall enter the High Security Zone through the designated Gate, after subjecting themselves to check by thermal and such other scanning devices as may be installed for detecting body temperature, infection status, etc.
  1. On entering the HSZ, such pass holders may proceed to the designated waiting areas or Bar Lounges/Libraries and wait for their turn to enter respective Court Rooms where physical hearing (with hybrid option) of their respective case(s) may be scheduled, and they would proceed only through the movement corridors created and demarcated for the purpose;
  2. At the designated waiting area(s), volunteers may also guide the Advocates-on-Record/Counsels further, as and when their turn comes for entering the designated Court Room for hearing;
  3. Subject to the capacity of any Courtroom, the entry of parties in a matter will be permitted not earlier than ten minutes prior to start of hearing of that matter;
  4. The entry into and exit from each Court Room shall be by separate channels/doors;
  5. It may be noted that wearing of mask, frequent use of hand sanitizer and maintaining physical distancing norms are mandatory for all entrants into the Supreme Court premises, including into the Court- rooms;
  6. On completion of hearing of their respective case(s), the Ld. Advocates/ Registered Clerks, etc. shall move out of the High Security Zone through the movement corridor(s) and exit from the designated gates;
  7. Ld. Advocates/ Counsels having more than one case for hearing in physical mode shall be issued separate Special Hearing Pass for each case and after hearing of one case is complete, they may wait in the designated staging/waiting area(s) for the purpose for appearing for the next case;
  8. It is reiterated that in order to facilitate video/tele-conferencing for the Ld. Advocates/ Counsels, a dedicated VC Facilitation Centre is located in Block ‘B/C’, Ground Floor, Additional Building Complex, Supreme Court of India, which can be accessed through Gate No.1 of that Complex;

18. It is further reiterated that to facilitate appearance of Ld. Advocates/ Litigants through video-conferencing mode, the Supreme Court Video Conferencing Facilitation Rooms (SCI VC ROOM) in the seven District Courts Complexes of Delhi, as notified vide Circular dated 13.06.2020 on Supreme Court website i.e. https://www.sci.gov.in, under the head Notices and Circular, continue to function.

As directed, the physical hearings (with hybrid option) are to commence w.e.f. 1st September, 2021.

Case BriefsForeign Courts

Supreme Court of The United States: While deciding upon the instant emergency application brought in by the Alabama Association of Realtors challenging the nationwide moratorium on evictions of any tenants during the Covid-19 pandemic; the Court with a ratio of 6:3, decided to end the federal moratorium on residential evictions citing that the Centers for Disease Control and Prevention (hereinafter CDC) clearly exceeded its authority under the Coronavirus Aid, Re­lief, and Economic Security Act, 2020 by taking the matters into its own hands and subsequent extension of the March 2020 moratorium through July 2021.

Background: In March 2020, Congress passed the Coronavirus Aid, Re­lief, and Economic Security Act to ease the burdens caused by the rapidly increasing COVID–19 pandemic. Among other reliefs, the Act im­posed a 120-day eviction moratorium for properties that participated in federal assistance programs or were subject to federally backed loans. When the eviction moratorium expired in July, Congress did not renew it. However, the CDC upon concluding that further action was needed “did what the Congress did not” and renewed the moratorium, covering all residential properties nationwide and imposing criminal penalties on violators.

The CDC’s moratorium was originally slated to expire on December 31, 2020, but Congress extended it for one month as part of the second Covid–19 relief Act. As the new deadline approached, the CDC again took matters into its own hands and extended its moratorium through March, then again through June, and ultimately through July 2021.

Contentions: The CDC contended that S. 361(a) of the Public Health Service Act allows it to ‘make and enforce such regulations (as in his judgment) which are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession’. Thus the provision gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID–19, in­cluding issuing the moratorium.

The Realtor associations and rental property managers in Al­abama and Georgia meanwhile argued that the moratorium has put the landlords across the country at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recov­ery. Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means, and preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property owner­ship—the right to exclude. It was also contended that the CDC has exceeded it statutory authority in renewing and extending the eviction moratorium.

Observations: The Majority comprising of John Roberts, C.J., Amy Coney Barrett, Brett Kavanaugh (concurring), Samuel Alito, Neil Gorsuch and Clarence Thomas, JJ., noted that it is indisputable that the public has a strong interest in combating the spread of the COVID–19 Delta variant, but “our system does not permit agencies to act unlawfully even in pursuit of desirable ends”. The Judges observed that the moratorium’s constant extension meant that the equities have begun to favour the landlords and their contentions became stronger because vaccine and rental-assistance distribution had improved since the stay was entered, while the harm to landlords had continued to increase. Perusing the aforementioned arguments of the CDC, the Court noted that the downstream connection between eviction and the interstate spread of disease is noticeably different from the direct tar­geting of disease that characterizes the measures identified in the statute. “Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that S. 361(a) gives the CDC the authority to impose this eviction moratorium”.

Coming down heavily upon the CDC and the Government, the Court also observed that the issues at stake are not merely financial. The mor­atorium intrudes into an area that is the particular domain of state law: the landlord-tenant relationship- “This claim of expansive authority under S. 361(a) is un­precedented. Since that provision’s enactment in 1944, no regulation premised on it has even begun to approach the size or scope of the eviction moratorium. And it is further amplified by the CDC’s decision to impose criminal penal­ties of up to a $250,000 fine and one year in jail on those who violate the moratorium. Section 361(a) is a wafer-thin reed on which to rest such sweeping power”.

The Majority concluded by holding that even if the Government believed that its action was necessary to avert a national catastrophe, the same could not over­come a lack of Congressional authorization. It is up to Con­gress, not the CDC, to decide whether the public interest merits further action here. “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it”.

Dissenting Opinion: Stephen Breyer, Sonia Sotomayor and Elena Kagan, JJ., disagreed with the observations of the majority and observed that the Court should not set aside the CDC’s evic­tion moratorium in this summary proceeding as the criteria for granting the emergency application have not been met in the instant matter. It was further observed that, “Applicants raise contested legal questions about an im­portant federal statute on which the lower courts are split and on which this Court has never actually spoken. These questions call for considered decision making, informed by full briefing and argument”.

[Alabama Association for Realtors v. Dept. of Health and Human Services, 2021 SCC OnLine US SC 14, decided on 26-08-2021]


Sucheta Sarkar, Editorial Assistant has reported this brief.

Migrant
COVID 19Op EdsOP. ED.

OVERVIEW OF THE REPORT


The outbreak of the Coronavirus pandemic brought life to a standstill worldwide. It exposed the inadequacy of global healthcare infrastructure and questioned existing capabilities to meet exigencies of such nature. While nations were imposing lockdowns and enforcing social distancing norms, India was battling a unique problem of its own: the migrant workers’ crisis induced by Covid-19.

Internal migration, including both inter-state and intra-state migration, is prevalent in India. It is a common phenomenon for the Indian rural population to move to urban areas in search of better job opportunities. The 2011 Census of India pegs the total number of internal migrants in the country at a staggering 139 million.1 The announcement of a sudden nationwide lockdown meant that these migrant workers were stranded in their host states of work, far away from their homes and families. With the transport facilities being discontinued, these migrant workers had nowhere to go. Most of them had already lost the means to sustain themselves as a result of the shutting down of workplaces. After much hue and cry, the government intervened and introduced transportation facilities to help them reach their home states. However, no concrete steps were taken to ensure that the returned workers found employment opportunities. The state failed to recognise that mere transportation of the migrant workers was not sufficient. It was equally important to ensure that such workers were able to sustain themselves and lead a life of dignity.


OBJECTIVES OF THIS STUDY


The M.P. Migrant Workers Project was initiated with the objective of filling the existing data gap in terms of the current employment status and living conditions of migrant labourers who returned to Madhya Pradesh during the lockdown. It also aims to know the extent of state intervention and aid provided to these workers throughout the process – starting from their journey from host states to settling in their respective villages.

Besides aiming to make us aware of the ground realities, the findings of this report are important as they hold the potential to guide policy decisions and legislations concerning migrant workers. A 360-degree analysis of the current approach will help us identify the strengths and weaknesses of the existing system and help us be better equipped to deal with such situations in the future.


METHODOLOGY


The observations from the empirical study have been made based on data collected directly from about 2943 migrant workers spread across 52 districts of Madhya Pradesh.

We started the exercise with the preparation of a comprehensive questionnaire containing around 50 questions on basic details of the respondents, their condition before Covid, their travel experience, current situation, financial assistance received and so on.

Before we started a full-fledged empirical study, we conducted sample callings by contacting around 250 people chosen at random. Our volunteers could get around 25 responses out of this list which suggested a 10-12% conversion rate of getting a response i.e., for every 10 entries, there was a possibility of getting only one legitimate response.

Once the final questionnaire was finalised, we entered the response recording stage. Our team contacted a tentative number of 25000-30,000 people. However, roughly around 10% i.e., a total of 3147 responses were recorded in all districts of Madhya Pradesh. The reasons for this low conversion rate are multifold, with the primary reason being incorrect numbers of migrants and multiple migrants registering through the same phone number. In some cases, calls were picked by residents of Maharashtra who informed us that someone registered through their number when the lockdown was going on.

Out of these 3147 responses, 2943 responses were confirmed to be legitimate migrant workers. The remaining entries were rendered invalid because of several reasons including but not limited to multiplicity of similar entries, incomplete information, error in identification of migrant workers etc. A large number of people contacted by our team turned out to be IT professionals or engineers particularly in Ujjain, Bhopal and Indore and hence we could not cover 100 entries in these three districts.


EXECUTIVE SUMMARY


  1. Demographical information: Of the total surveyed respondents,
    1. Category – Around 34% of the respondents belonged to the General category, followed by 31% belonging to the Other Backward Class category. Around 15% of the respondents were Scheduled Castes and another 15% identified themselves as Scheduled Tribes.
    2. Gender – 92% of the total respondents were males and 8% were females. 4 respondents preferred not to disclose their gender.
    3. Age – Majority of the respondents (83%) belonged to the working-age group of 15 to 34 years. Within that, the highest number (around 45%) fell in the range of 25 to 34 years.
  2. Employment trends: With respect to the status of employment, the majority of respondents (around 56%) admitted that they were unemployed since their return to Madhya Pradesh.Furthermore, respondents from the General category had the highest chances of being employed, and respondents belonging to the Scheduled Tribe category were least likely to be employed. With respect to gender, males stood a higher chance of finding jobs post-Covid, as compared to their female counterparts.The findings of this report thus bring forth the continuing relevance of factors like gender and caste/category that plague employment opportunities, especially in rural India.
  3. Industry of engagement-based analysis: During the pre-Covid era, the majority of respondents (around 40%) were engaged in the infrastructure development industry. This changed during the post-Covid era, wherein a majority of the employed respondents (around 37%) worked as labourers. It is pertinent to note that only 10% of the total respondents were employed in the labour industry in the pre-Covid period as compared to the 37% after the pandemic.This engagement shift in favour of the labour/worker industry is worrying. As per the responses received, the labour industry has been one of the least paying industries both before and after Covid. More than 60% of the respondents engaged in the labour industry earned below-average income2 at any given point in time.
  4. Positive correlation between education and employment: A combined analysis of the education and employment status responses before Covid indicated that more educated respondents secured better-paying jobs. It was observed that respondents who were educated were more likely to be falling in higher-income brackets – around 25% of the respondents earning more than Rs. 650/day were graduates.However, interestingly, there was no perceptible correlation between the employment status of the respondent’s post lockdown and their educational qualifications indicating widespread unemployment stress amongst people with varying education qualifications alike.
  5. Trends in income: The post-pandemic period saw a dip in the average income of the respondents. The data is especially alarming for lower-income earners, as only 7% of the respondents earned less than Rs. 250 per day pre-pandemic, as compared to 35% in the post-pandemic period.
  6. Gender disparity and pay gap: The data collected reveals that female respondents were more likely to be given daily wages than employment with a fixed income. Even before Covid, the share of female respondents employed as daily wage earners was around 12% more than their male counterparts.The above finding is relevant in light of the positive correlation established between the kind of employment (fixed-term v. daily wage jobs) and the income associated with each of these types. As per the responses received, people employed in fixed-term jobs were more likely to earn an above-average income.It is also pertinent to note that majority of female respondents (around 70%) formed a part of the average or below average income groups during the post-pandemic period.
  7. Shortfalls in government policies and Covid-specific initiatives:

(a) Transportation :
In the wake of the Covid pandemic, the Madhya Pradesh (M.P.) government introduced measures to aid the transportation of migrant workers. In furtherance of the same, an M.P. Migrant workers online registration portal was launched allowing stranded migrant workers to register themselves and avail shramik trains and bus services run by the state government.

Majority of the respondents (around 70%) stated that they registered themselves through the online registration portals. Around 57% of the respondents further stated that their travel tickets were entirely funded by the state government. Despite these measures being useful for the majority, there were complaints regarding lack of transport coordination between the drop-off railway stations and place of residence. Resultantly, around 12.5% of the respondents admitted that they were forced to walk back to their villages (either some part of the journey or the entire journey) in the absence of state-sponsored alternatives.

(b)  Scheme coverage

Despite various employment schemes introduced by different governments, it was observed that only around 1% of the respondents were covered such schemes in the state of Maharashtra. Even after the pandemic, the coverage of state employment schemes remained dissatisfactory. Only 1.7% of the total employed respondents said that they found employment under one of the employment schemes in M.P. Interestingly, there were no female beneficiaries under the M.P. specific employment schemes.

(c)  Monetary assistance
The M.P. government had also announced a Direct Benefit Transfer (DBT) scheme under which it promised Rs. 1000 to each returning migrant worker as financial aid. However, this initiative remained largely unimplemented with 88.5% of the respondents stating that no such amount was ever transferred to them. Amongst the 11.5% who did receive DBT, many mentioned not receiving the full amount.

(d)  Supreme Court directives for resettlement and future employment
In June 2020, the Supreme Court mandated all states to maintain records of incoming migrant workers and document crucial details such as their names, address, nature of their skill, and place of earlier employment. The state officials were further required to set up counselling centres and reach out to returning workers for employment opportunities.

Around 64% of the respondents said that their basic details were registered by government officials while entering M.P. However, majority of respondents (around 87%) stated that they were never contacted by government representatives in relation to any possible employment opportunities. Amongst the very few respondents who were approached by state representatives, around 95% said that the information shared by such officials was not useful from an employment perspective.

Furthermore, the majority (around 74%) also stated that no awareness/sensitisation programs were conducted and that state counselling centres, as required under the Supreme Court directives, were also not set up.

(e)  Policy failure and implementation gap
Despite the government’s noble intent of helping incoming migrant workers by setting up online portals for registration, an analysis of this measure from a policy perspective yields that such portals were not helpful.

Almost half of the respondents (50%) said that they did not possess smartphones or any other device with an internet connection to register themselves on these portals. Out of the respondents registered for travel, around 60% admitted that they were helped by government officials and civil societies for online registration.

The non-availability of internet and/or smart phones, and the glaring digital divide, had far-reaching implications on the employment opportunities of returned workers.

The M.P. government had also introduced a ‘Rozgar Setu’ portal to provide employment to incoming workers. Despite the government’s efforts, around 56% of the respondents remained unemployed even after several months of return to M.P. This could be attributed to several reasons, including but not limited to: (i) lack of assistance/support from authorities in the form of counselling centres/ awareness programs (as observed above); (ii) demotivation for employers to hire workers from a government platform as that would have subjected them to greater scrutiny; and (iii) improper measures introduced by the government (introducing online measures, a pre-requisite for which are smart phones and an internet connection, may not have been the policy decision in view of the fact that the target audience was vulnerable migrant workers).


ANALYSIS OF LABOUR LEGISLATIONS IN INDIA


The predicament of labourers during the pandemic elucidated gaps in the Indian labour law regime. The existing labour laws of India have been critiqued on several occasions in the past for being complex and archaic, with inconsistent provisions. Many of these criticisms were in line with the data findings of this report, highlighting the incompetence of extant laws in ensuring a safety net for migrant workers. None of the existing labour legislations in India adequately deal with inequalities faced by migrant workers employed in the informal sector on account of their category/caste or education.

In light of the above, this report identifies and highlights loopholes in the existing labour law regime which have a direct bearing on Indian migrant workers.

1. Limitations of applicable legislations: India has a limited number of legislations covering migrant workers employed in the informal sector. The applicability of such sparse laws is also limited because of the manner in which these laws are worded.

For instance, Section 2(e) of the Inter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 defines inter-state migrant workers as those recruited by contractors alone. This narrow interpretation of the term ‘inter-state migrant workers’ excludes a large number of workers from its benefits who migrate on their own without the assistance of a contractor.

Similarly, the Madhya Pradesh Unorganised Workers Welfare Act, 2003 is one of the very few labour legislations regulating the informal sector but is not fully exploited on account of the benefits being available only to members of the ‘welfare board’ established under the Act. As per the provisions of the Act, only those workers who reside in an area of MP for at least 12 months are qualified to be members of the welfare board. Such a requirement automatically disentitles migrant workers travelling to other states from availing benefits under the Act.

2. Payment of wages below the minimum wage rate: As per Section 13(1)(b) of the Inter-state Migrant Workmen Act 1979, an inter-state migrant workman has to be mandatorily paid as per wages fixed under the Minimum Wages Act, 1948.

The minimum wage rate in India differs from state to state. In the state of Maharashtra, the minimum wage payable to unskilled workers is fixed at Rs. 381.54 per day. However, approximately 42% of the surveyed respondents received wages at rates lower than Rs. 350 per day while they were in Maharashtra. Even after their return to M.P., 37% of the employed respondents received wages at rates lower than minimum wages fixed for unskilled workers for the state of M.P.

3. Lack of social security and protection: The Unorganised Workers’ Social Security Act, 2008 directs the Central Government to form schemes for unorganised workers on matters relating to life and disability cover, health and maternity benefits, old age protection, and any other benefit as may be determined by the state government. These benefits aim to provide a minimum level of social security to workers in the unorganised sector.

Despite such provisions, the migrant workers lacked adequate social cover. Even welfare schemes announced at the state level, such as the M.P. government’s initiative of monetary assistance to returning workers, were not implemented properly.

There could be several reasons for paltry implementation of welfare schemes both at the central and state level, including but not limited to: (i) lack of data availability on migrant workers, (ii) lack of political and administrative will, (iii) articulation of schemes as benefits as opposed to legally enforceable rights, (iv) tedious and complex process for registration of workers (which require state government resources and manpower), (v) inadequate sensitisation.

Resultantly, migrant workers are unable to access these benefits as they fall in an administrative blind spot, wherein they neither have information on these schemes nor the necessary documents to avail them.


THE GENDER AND CATEGORY QUESTION


The term ‘migrant worker’ is generally used as a gender-neutral and caste-neutral term. Resultantly, while addressing issues relating to migrant workers, problems specific to the gender and caste/category of a worker are often overlooked.

However, in reality, gender and category of workers shape every stage of their migration experience. Understanding and addressing the gender and category-specific problems faced by migrant workers is crucial to ensure their amelioration in the truest sense. Some of these specific issues have been identified as under:

1. Menstrual hygiene – During the pandemic period, it was observed that menstrual hygiene products were largely unavailable for female migrant workers during their journey. The issue is pertinent as the sample size illustrates that almost 99% of the female respondents fell in the age bracket of 15 to 54 years which is also the menstruating age for women. Some female migrant workers complained of facing hardships during their travel on account of menstruation and further developing Urinary Tract Infection (UTI) because of the unhygienic conditions.

2. Education, employment and gender – An analysis of the responses received reveals that female respondents not only had lower levels of education across various categories, but they were also more likely to get daily wage jobs and less income as compared to their male counterparts.

3. Education, employment and caste/category: The survey data indicates that General and Other Backward Class category respondents had better access to education, as compared to respondents from Scheduled Caste and Scheduled Tribe categories. However, this inequality in access to education did not translate into inequality in employment, especially in low income jobs. During the pre-Covid era, it was observed that all categories were equally represented in terms of employment. This however changed in the post-Covid period, where the Covid induced uncertainty affected the Scheduled Caste and Scheduled Tribe communities more as compared to General and Other Backward Class category respondents.

We need redistributive, equalizing, and holistic policies and legislations to address the various issues faced by migrant workers. The conceptual framework of labour, migration and social-policy making should address gender and category concerns at all levels (including but not limited to education, healthcare, digital divide).


Report Prepared by: Rakshita Agarwal (NLUO), Rohit Sharma (NUJS), Lakshmi Menon (SLS Hyderabad), Niharika Tiwari (Ashoka University), Shilpa Shankar (NALSAR) and Saiyed Kamil (NUJS)

1 Data on Migration 2011, Ministry of Home Affairs, Government of India, Available at https://censusindia.gov.in/2011census/migration.html, Last seen on 24/04/2021.

2 For the purposes of this part, average income is understood to be between Rs. 350-Rs.400 per day.


Read more:

The full report is accessible here: https://bit.ly/3k9RNbP

Legislation UpdatesNotifications

The Employees State Insurance Corporation has notified the Covid-19 Relief Scheme on 11th August 2021 as a welfare measure for the Insured Persons and for the dependents of ESI insured persons in case of their death due to COVID-19.

The Eligible conditions to avail the scheme are as follows:

  • The Insured Person who died due to COVID-19 disease must have been registered on the ESIC online portal at least three months prior to the date of diagnosis of COVID-19 disease resulting in his/ her death.
  • The deceased IP must have been in employment on the date of diagnosis of COVID-19 disease and contributions for at least 70 days should have been paid or payable in respect of him/ her during a period of maximum one year immediately preceding the diagnosis of COVID-19 disease resulting in death.
  • Further, in case of death due to COVID-19, the spouse, son up to 25 years of age, unmarried daughter and widowed mother of the insured would be eligible for the relief.
  • The scheme shall be effective for two years from March 24, 2020 and the minimum relief under the scheme shall be Rs 1800/- per month.
  • The minimum relief under the scheme shall be Rs 1800/- per month.

 


*Tanvi Singh, Editorial Assistant has reported this brief.