Case BriefsHigh Courts

Delhi High Court: Prateek Jalan, J., grants bail to a person who was alleged to cause fraudulent transactions and loss to the government.

An applicant sought bail for offences registered under Sections 420, 468 and 471 of the Penal Code, 1860.

The only accused named in the FIR was Sanjay Garg, son of Deep Chand Garg. The FIR alleged cheating and fraud by Saraswati Enterprises, of which Sanjay Garg was the proprietor, causing a loss to the government for the sum of Rs 9.97 crores.

The allegations in the FIR were with regard to the unauthorized and fraudulent claim of input tax credit in respect of Goods and Services Tax [GST] by Saraswati.

The allegation against the applicant was that he and a co-accused had set up a number of fictitious companies, which were being used for the purposes of defrauding the government. It was contended that the accused persons had opened banks accounts in fictitious names and provided their telephone numbers and email addresses in this respect.

Analysis and Decision

In Court’s opinion, the applicant was entitled to bail.

From the status reported, it appeared that the main link of the present applicant with the transactions in question was on the basis of the use of the mobile No. and his email address.

High Court expressed that the applicant in conspiracy with co-accused had registered various bogus firms and opened fictitious bank accounts.

Further, as per the status report, the applicant neither has prior criminal antecedents nor is there any material to suggest that he is a flight risk.

The evidence in the present case was largely documentary and had already been placed before the trial court. Hence, the chances of the applicant tampering with the evidence was therefore unlikely.

Seriousness of the offences alone is not conclusive of the applicant’s entitlement to bail, as held by the Supreme Court inter alia in Sanjay Chandra v. Central Bureau of Investigation (2012) 1 SCC 40.

Concluding the matter, the applicant was granted bail subject to the following conditions:

  1. The applicant will furnish a personal bond in the sum of ₹1,00,000/- with two sureties of the like amount, one of which will be from a blood relative of the applicant, to the satisfaction of the Trial Court.
  2. The applicant will remain resident at the address mentioned in the memo of parties
  3. The applicant will inform the Investigating Officer and the Trial Court in advance of any change in his residential address.
  4. The applicant will appear on each and every date fixed before the Trial Court.
  5. The applicant will give his mobile numbers to the IO and ensure that the mobile numbers are kept operational and reachable at all times.
  6. The applicant will not directly or indirectly tamper with evidence or try to influence any of the prosecution witness in the case. In case the same is established, the bail granted to the applicant shall stand cancelled forthwith.

In view of the above, application stood disposed of. [Pulkit v. State (NCT of Delhi), 2022 SCC OnLine Del 1074, decided on 12-4-2022]


Advocates before the Court:

For the Petitioner:

Sunil Dalal, Senior Advocate with Kapil Madan, Gurmukh Singh Arora, Ramya Verma, Pulkit Pandey, Advocates

For the Respondent:

Amit Chadha, APP for the State with Insp. J.S. Mishra, PS EOW

Case BriefsHigh Courts

Madras High Court: Expressing that, Legal profession is a noble profession, and it is the lawyer, who plays a predominant role in securing every citizen life and personal liberty fundamental and statutory rights ensured by the Constitution, M. Govindaraj, J., observed that, Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice.

High Court addressed a case of a highly placed Law Officer of the State Government, in order to defend the honour and glory of the noble profession, against the unilateral and arbitrary decision taken by a fickle minded officer, contrary to the specific instructions given by the Chief Secretary, State Government.

The Government need to provide budgetary allocation to Departments, which are very vital for a welfare state to maintain peace and harmony. Thus, the honorarium made to the services of the Law Officers of the State to defend its actions is also a very important, essential and unavoidable expenditure.

In the instant matter, oblivious of the facts and pivotal role played by the respectable and highly placed Law Officer on request, the impugned order of restricting the fee, came to be passed under the pretext of saving expenditure to the Government.

Bench remarked that,

“Once you accept to defend the Government or its agencies, you cannot complain of the poor and nominal fee paid by them, for, the Government is for the people and it is not destined to make profit, but to serve the people.”

“…not only the Government, but also the Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice, more particularly the top law officers.”

With regard to the legal profession being a noble profession, the Court expressed that, when a lawyer for an individual client fight for the life and liberty of his client, the Law Officers of the State are cast with onerous responsibilities to strike a balance of individual and fellow citizens rights along with State, its policies, welfare schemes, etc.

Additional Advocate General, J. Ravindran, sitting in an unenviable position in a matter directly touching upon his own office, contested against the petitioner, which shows the Law Officers render their services above self against his own clan, raised serious concerns of impleading Chief Secretary as a party respondent in may petitions unmindful od the fact as to whether the issue pertains to the Chief Secretary or not?

The Court stated that, impleading of Chief Secretary in all the writ petitions, in which, he is not at all answering respondent is causing great hardship. Therefore, the Court directed the Registry in respect of arrayal of unnecessary parties, particularly the Chief Secretary to the Government.

In Court’s opinion, the professional fee paid to the Law Officers will not commensurate to the amount of service rendered, their dedication, amount of time spent, mental and physical labour, age and expertise and their sacrifice of lucrative private practice.

The impugned e-mail challenged in the present petition reflect the same mentality of an individual officer treating the highly placed Law Officer on par with him and unable to digest the special fee paid to him contrary to the concerted decision taken by the High-Level Committee.

The general outlook and attitude of a government servant happens to be of a paid servant.

Further, the Court also observed that,

Lawyers have every right to decline the brief, if his services and his dignity is not respected. In order to do social justice or economic justice an Advocate may accept higher fee from an affluent client and lesser or no fees from a poor or downtrodden litigant.

Court reiterated the instructions issued by the Chief Secretary to Government that “Generally, the special fees claimed by the Advocate General are not to be questioned.” but in the instant writ petition, it was questioned by the respondent contrary to the instructions which always bind on him.

Lastly, the Bench stating that the Rulers may change, but the Government is continuously running machinery and its servants shall not shift their loyalty to Government to please the Rulers set aside the impugned order.

While concluding the matter and considering the plight of the Law Officers, the following directions were issued:

(a)The Law Officers shall be given due respect for their dedication in defending the Government.

(b)In particular, the highest Law Officers, viz., Advocate General and Additional Advocate General, who are required in emergent situation to appear before the Court to defend the interest of the State, the officials shall not insist on the Government Order requesting him to appear and also shall not deny the claim of fee or special fee whatsoever claimed by them in terms of the instructions issued by the Chief Secretary to Government.

(c) The Officials shall be prompt in getting legal opinion in time, giving instructions to the Law Officers in time, if any appeal is preferred, it shall be intimated on time, without any delay. The Government is also equally a litigant which cannot expect a special treatment in condonation of delay matters.

(d) Whenever they seek instructions, the Government shall ensure that its Officials give top priority and produce the information, and records sought by them.

(e) The Law Officer shall be provided with the initial fees and after completion of the litigation the final fee. The said fee shall be paid immediately and it shall not be unduly delayed.

(f) The fee structure of the Law Officers shall be revised once in three years corresponding to the Price Index.

(g)If the bill is submitted by a Law Officer, it shall be settled at once, if not within a reasonable period that is to say to a maximum of two months.

(h) Further, depending on the sensitivity or importance of the case, the fee structure of a private Lawyer will raise. Whereas, the Law Officer of the lower rank will get the same fixed fees and to be particular, in batch matters, they would get fee only for the main matter and for the remaining connected matters, a fixed minimum fee is paid. In such a situation, the Government shall consider immediate payment of fee and treat it is as honorarium to the Law Officers for the enormous efforts and time put in by them.

(i) The Government at any cost shall not reduce the fee than one was fixed at the time of appointing a Law Officer, more particularly, due to the change of regime. As stated earlier, the Government is continuing machinery and defending the case of the Government and of the people is a continuing affair and therefore, the Law Officer shall not be slighted down and they shall be paid with utmost respect which they deserve for the meritorious efforts put by them.

[S. Ramasamy v. State of Tamil Nadu, 2022 SCC OnLine Mad 1519, decided on 15-2-2022]


Advocates before the Court:

For Petitioner :

Mr. G. Rajkumar

For Respondents :

Mr. J. Ravindran

Additional Advocate General Assisted by Mr. Tippu Sultan Government Advocate

Experts CornerKhaitan & Co

Overview

The Indian Government recently announced its intention to open the Indian space sector to FDI. This article analyses the implications of allowing FDI in space and gives an overview of the Indian space regime.

 

Introduction

India is one of the few nations in the world to dominate the space arena. For a developing nation, India has achieved a great feat in exploring outer space. Despite being a space faring nation, India accounts for only 2% of the global space economy. India’s achievements in the space sector fall short behind countries like US and China which hold a greater contribution in the $447 billion dollar global space economy. The reason for India holding only a small share in the global space economy stems from the Indian space sector being primarily Government controlled.

 

Indian space program was started in the 1960s and has revolutionised the space domain through its national space agency ISRO (Indian Space Research Organisation) which functions under the aegis of Indian Department of Space. For more than 5 (five) decades under Department of Space administration, ISRO has functioned as both an operator and regulator of space activities. This consolidation of complete control over Indian space sector in the hands of statutory bodies has impeded participation from private players. Cognizant about the importance of collaboration with private foreign players, the Indian Government recently announced its intention to open the Indian space sector to foreign direct investment.

 

Overview of Indian Space Sector

As mentioned above, the Indian space sector has been predominantly Government operated. Under the umbrella of Department of Space and ISRO, private players never got the opportunity to fully participate and spearhead space activities. While ISRO has had a long-standing relationship with numerous private players, their role has always been limited to being a vendor, subcontractor, or supplier for ISRO and this constraint on private collaboration has severely inhibited the growth of the Indian space domain.

 

In the year 2020, the Indian space sector welcomed its first set of major reforms to boost private sector participation. As part of these reforms a new body, namely, IN-SPACe (Indian National Space Promotion and Authorisation Centre) was created to regulate and promote private sector participation in space activities.

 

IN-SPACe is contemplated to be the main interface for collaboration between Government and private actors. The private players have responded well to these new government initiatives of providing a level playing field in a once closed off sector. As of 2022, about 75 (seventy-five) startups have registered on the government portal with novel ideas to take the Indian space sector to newer heights. IN-SPACe will enable private players to be more than a vendor and provide them with the option to build and launch space objects, set up base at Department of Space premises, utilise ISRO facilities and infrastructure and develop new space infrastructure for ISRO.

 

Despite the government’s encouragement towards private participation, the issue remains that there has been a lack of foreign investment to augment the Indian space economy. Foreign investors have been on fence about investing in Government monopolised Indian space sector. The conflict of interest with ISRO as a competitor had perpetuated apprehension in minds of foreign investors who could not see a way ahead to reap the benefits of the Indian space program initiatives.

 

FDI in Space

Presently, FDI in space is allowed under government route only for satellite establishment and operations. Further, FDI in space is approved by the Government on a case-by-case basis and often this approval takes years. However, witnessing the change in approach of the Indian Government towards private players involvement, foreign companies have expressed interest in investing in this space.  Soon after opening the Indian space sector to private actors, the next step has been to seek foreign direct investment. ISRO officials have called for introduction of a new FDI policy to engage with foreign firms and make the Indian space sector accessible to both domestic and foreign players.

 

In February 2022, the Indian Minister of Space informed the Indian Parliament about the government’s intention to allow FDI in space. While currently FDI is limited to satellite making operations, we can expect the new FDI policy to attract investment in other space activities as well. As per ISRO officials this new FDI approach would enable foreign companies to set up base in India and utilise ISRO facilities for undertaking a diverse range of space activities. While we are yet to see the exact sectoral guidelines that the Government will impose on FDI but as per ISRO Chairman the sectors that were previously closed off to FDI will be opened up to forge mutually beneficial relationship between Government and private players.

 

To ensure effective collaboration between Indian and foreign players, IN-SPACe would be the agency in charge for facilitating foreign investment in space sector and will provide a one-stop interface for foreign players to enter Indian space market. For a foreign investor, investing in Indian space domain presents numerous benefits:

  • Cost-effective: The operating costs of setting up base and launching space vehicles in India is comparatively much less compared to its counterparts like NASA. Nothing illustrates the economical nature of Indian space endeavours better than the words of the Indian Prime Minister Narendra Modi on the Indian mission to Mars costing less than the whole budget of the Hollywood movie Gravity.
  • Exceptional success rate: ISRO is the 6th (sixth) largest space agency in the world and holds an exceptional success rate. India has made a name for itself by successful launch of about 342 (three hundred and forty-two) foreign satellites from over 34 (thirty-four) countries.
  • Innovative equipment: ISRO holds the cutting edge equipments and is also in process to launching SSLV (small satellite launch vehicle) in partnership with private companies. This will provide a greater avenue for foreign players to form partnerships with the Indian space sector.
  • Liberalised space sector: Over the years, ISRO has forged strong relationships with numerous industrial ventures that will be beneficial to foreign players who wish to set up base in India.

Draft Space Activities Bill

As India tries to meet the rising commercial needs of its Indian space program it must balance this against its international obligations to ensure safe and peaceful use of outer space. Regulation of space activities comes under the ambit of international law and to solidify the obligation of sovereign States the UN Committee on Peaceful Use of Outer Space (UNCOPUOS) obligates the State parties to execute domestic space legislations to govern space activities.

 

Pursuant to this, India is in the process of passing a Space Activities Bill that will provide a conducive environment for private participation and lay down a strong regulatory framework for managing space activities. It is proposed the Space Activities Bill will provide guidelines for attracting FDI and regulating private sector participation. The 2017 draft of the Bill provides for a licence mechanism for undertaking commercial space activities. As per the Bill, the Indian Government on an application made by an entity stipulating the proposed commercial space activity will be issued a licence. Based on this, domestic and foreign private players can apply for a licence and undertake commercial space activities on ISRO’s playground.

 

Conclusion

In conclusion, with India having one of the best space programs in the world, the move to allow FDI in space will make India a bigger player in the global space economy. FDI in space will allow foreign players with a window to venture into the India space domain, this will contribute to Indian national and foreign reserves, promote technology transfer and research innovations. Further, the introduction of Indian Space Activities Bill will give greater clarity to private players on how to be an integral part of the space sector.

 

Lastly, at the 72nd International Astronautical Congress held in 2021, the ISRO Chairman emphasised on the government’s intention to create a favourable environment for foreign investment and suggested foreign participants to start investing in India. Therefore, the time is now ripe for foreign enterprises to penetrate and establish a presence in the Indian space market.


† Partner, Khaitan & Co.

†† Counsel, Khaitan & Co.

††† Associate, Khaitan & Co.

 

Case BriefsHigh Courts

Rajasthan High Court: Mahendar Kumar Goyal J. dismissed the petition being not maintainable against a private entity. 

The instant petition was filed seeking issuance of an appropriate Writ, to set aside the action of removal of videos of petitioner on his YouTube channel and subsequent termination of his YouTube channel by respondent No.2 and further direct respondent no.2 to restore the YouTube channel of petitioner which was maintained on YouTube portal with the name and style of “Gurudev Siyag Sidh Yoga Free” and allow him to operate the aid channel.

Counsel for petitioner Mr. Ashish Davessar submitted that his YouTube account has been terminated by the respondent 2 without issuing any show cause notice or affording any opportunity of hearing, thus, the writ petition deserves to be allowed.

The Court observed a perusal of the prayer clause reveals that entire relief has been claimed against the respondent 2, a limited liability company. Although, it has been submitted that it is amenable to the writ jurisdiction on account of the State having its deep and pervasive control over its affairs and also for the reason that it discharges the functions of public importance which are closely related to the Government functions; but, the writ petition is bereft of any such averment.

The court further observed that there is not a whisper of averment in the entire writ petition as to the true nature of functions being discharged by the respondent 2 or the same being of public importance. In absence of any factual foundation to substantiate the submission that the respondent No.1 has deep and pervasive control over the affairs of the respondent No.2 or it discharges the public functions which are akin to the Government functions, this Court is not persuaded to accept the submission made by learned counsel for the petitioner.

The Court held, “Therefore, the writ petition is dismissed being not maintainable against a private entity.”[Dharmendar Kumar Sharma v. Union of India, 2022 SCC OnLine Raj 531, decided on 07-03-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Experts CornerKhaitan & Co

Union Budget 2022-2023 provides the right impetus for climate action and energy transition and is a welcome step towards transition to a carbon neutral economy in India. This is in line with the “panchamrit” strategy for achieving climate targets announced by the Prime Minister (PM) in COP26 – that among other things aimed at increasing India’s renewable energy capacity to 500 GW by 2030. Budget has a clear focus on the renewable energy sector, laying down the blueprint for the same in the “amrit kaal” with initiatives like clean and sustainable mobility in urban areas, energy service company business model for conservation of energy in large commercial buildings, increased allocation towards production linked incentive (PLI) scheme to ensure manufacture of high efficiency solar PV modules as well as green bonds for clean energy financing.

 

While expansion of infrastructure remains the primary agenda of this year’s budget with PM Gati Shakti Master Plan taking the centre stage, the Government has retained focus on climate action by recognising energy transmission and social infrastructure as complementary forces in promoting the economy. The growth-oriented and climate-friendly budget, with increased capex outlay of INR 7.5 lakh crores, demonstrates the Government’s intent to facilitate transition towards clean energy.

 

Increased emphasis on energy transition and climate action in the budget, in addition to the PM announcing ambitious climate targets to be achieved by 2030, has created immense opportunity across various sectors within the green infrastructure sector in India, including development of sustainable and innovative business models for energy storage, 4 pilot projects for coal gasification and transition to clean and sustainable mobility in urban areas with a zero fossil fuel policy and an  EV ecosystem. Additionally, allocation of INR 19,500 crores under the PLI scheme to facilitate increase in solar power production through manufacture of high efficiency solar PV modules is a step ahead towards achieving the renewable energy capacity of 500 GW in India, as also an opportunity to increase participation of private players. The aforesaid allocation under the PLI scheme is a favourable measure for waitlisted PLI bidders and will bolster the domestic solar manufacturing ecosystem. However, achieving a 500 GW renewable energy capacity in India would mean addition of about 62 GW every year for the next 8 years, which would require large investments and a framework for long-term financing. An effective strategy to meet the above requirement is to utilise the thematic funds for blended finance which would garner confidence amongst private parties to increase investment in infrastructure for production of other sources of renewable energy such as wind, hydro power and green hydrogen, in addition to solar power. The blended finance model introduced in this year’s budget is similar to the viability gap funding of the Government for financial support to PPP projects, with the exception that the management of funds has been entrusted upon private fund managers. It will be interesting to see the operating framework the Government will adopt to put in motion the virtuous cycle of investment, where public investment will help crowd-in private investment, potentially increasing the commercial viability of PPP projects manifold.

 

In order to optimise private participation and investments in green infrastructure, a revised procurement policy with specific relaxations to bid criteria in public procurement of projects, including measures such as Finance Minister (FM) announcing acceptance of surety bonds instead of bank guarantees and a single platform for green clearances, will be welcome. This will attract private players and help create a level playing field for Indian bidders as well as foreign bidders already in the country and those intending to enter the country, thereby improving competition and enabling efficiency in the green energy sector.

 

Further, an important incentive for clean energy financing is the sovereign green bonds initiative announced by the FM, which, tied in with the push in capex, is expected to become a key driving force in achieving India’s carbon emission reduction target. While the green bond market in India is still in its nascent stage, introduction of sovereign green bonds will potentially have twofold benefits: (i) being an indication of the Government’s commitment towards climate action and sustainable development, it will foster trust amongst private investors and attract capital towards green investments; and (ii) it will give impetus to the development of the domestic green bond market in India. However, we expect further clarity from the Government on the strategy for issuing green bonds, in the absence of which there could be several challenges in implementation.

 

The Union Budget 2022-2023 exhibits an overall paradigm shift towards environment consciousness, apart from economic growth and it will be noteworthy to see how the Government will plan the implementation of climate-friendly strategies to realise its carbon-neutral ambition.


† Partner, Khaitan & Co

†† Associate, Khaitan & Co

Cases ReportedSupreme Court Cases

In Andhra Pradesh Dairy Development Corporation Federation v. B. Narasimha Reddy, (2011) 9 SCC 286 explained the principle of promissory estoppel that binds the succeeding Government to carry on the unfinished job of the previous Government. The bench of P. Sathasivam and B.S. Chauhan, JJ held,

“40. In the matter of the Government of a State, the succeeding Government is dutybound to continue and carry on the unfinished job of the previous Government, for the reason that the action is that of the “State”, within the meaning of Article 12 of the Constitution, which continues to subsist and therefore, it is not required that the new Government can plead contrary to the State action taken by the previous Government in respect of a particular subject. The State, being a continuing body can be stopped from changing its stand in a given case, but where after holding enquiry it came to the conclusion that action was not in conformity with law, the doctrine of estoppel would not apply. Thus, unless the act done by the previous Government is found to be contrary to the statutory provisions, unreasonable or against policy, the State should not change its stand merely because the other political party has come into power. “Political agenda of an individual or a political party should not be subversive of rule of law.” The Government has to rise above the nexus of vested interest and nepotism, etc. as the principles of governance have to be tested on the touchstone of  justice, equity and fair play.”

Read more… 

Case BriefsSupreme Court

“If you want to keep a secret, you must also hide it from yourself.”

­George Orwell, 1984


Supreme Court: The 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has appointed an Expert Committee to look into the truth or falsity of the allegations in the Pegasus Spyware case, “taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country.”

The what, the why, the who and the how: All you need to know about SC’s independent probe order in Pegasus case

Here are five unmissable quotes on right to privacy from the Pegasus order

  • Members of a civilized democratic society have a reasonable expectation of privacy. Privacy is not the singular concern of journalists or social activists. Every citizen of India ought to be protected against violations of privacy.
  • We live in the era of information revolution, where the entire lives of individuals are stored in the cloud or in a digital dossier. We must recognize that while technology is a useful tool for improving the lives of the people, at the same time, it can also be used to breach that sacred private space of an individual.
  • The right to privacy is directly infringed when there is surveillance or spying done on an individual, either by the State or by any external agency.
  • In a democratic country governed by the rule of law, indiscriminate spying on individuals cannot be allowed except with sufficient statutory safeguards, by following the procedure established by law under the Constitution.
  • It is undeniable that surveillance and the knowledge that one is under the threat of being spied on can affect the way an individual decides to exercise his or her rights. Such a scenario might result in self-censorship. This is of particular concern when it relates to the freedom of the press, which is an important pillar of democracy. Such chilling effect on the freedom of speech is an assault on the vital public-watchdog role of the press, which may undermine the ability of the press to provide accurate and reliable information.

While the Supreme Court was initially reluctant in interfering in the matter due to lack of material placed before it, here’s why it eventually decided to step in.

Pegasus| ‘National security cannot be the bugbear that the judiciary shies away from’. Here’s why the initially reluctant Supreme Court finally decided to interfere

[Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, decided on 27.10.2021]


Counsels:

For petitioners: Senior Advocates Kapil Sibal, Shyam Divan, Rakesh Dwivedi, Dinesh Dwivedi, Meenakshi Arora, Colin Gonsalves, ML Sharma

For Union of India: Solicitor General Tushar Mehta

Case BriefsSupreme Court

“This Court has always been conscious of not entering the political thicket. However, at the same time, it has never cowered from protecting all from the abuses of fundamental rights.”

Supreme Court: The 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has appointed an Expert Committee to look into the truth or falsity of the allegations in the Pegasus Spyware case, “taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country.”

The what, the why, the who and the how: All you need to know about SC’s independent probe order in Pegasus case

While the Supreme Court was initially reluctant in interfering in the matter due to lack of material placed before it, here’s why it eventually decided to step in.


The Controversy


The Pegasus suite of spywares, being produced by an Israeli Technology firm, viz., the NSO Group, can allegedly be used to compromise the digital devices of an individual through zero click vulnerabilities, i.e., without requiring any action on the part of the target of the software. Once the software infiltrates   an individual’s device, it allegedly has the capacity to access the entire stored data on the device, and has real time access to emails, texts, phone calls, as well as the camera and sound recording capabilities of the device. Once the device is infiltrated using Pegasus, the entire control over the device is allegedly handed over to the Pegasus user who can then remotely control all the functionalities of the device and switch different features on or off.

The NSO Group purportedly sells this extremely powerful software only to certain undisclosed Governments and the end user of its products are “exclusively   government intelligence and law enforcement agencies” as per its own website. Reports indicate that individuals from nearly 45 countries are suspected to have been affected.

On 18th  July 2021, a consortium of nearly journalistic organizations from around the world, including   one Indian organization, released the results of a long investigative effort indicating the alleged use of the Pegasus software on several private individuals. This investigative effort was based on a list of some   50,000 leaked numbers which were allegedly under surveillance by clients of the NSO Group through the Pegasus software. Initially, it was discovered that nearly 300 of these numbers belonged to Indians, many of whom are senior journalists, doctors, political persons, and even some Court staff. At the time of filing of the Writ Petitions, nearly 10 Indians’ devices were allegedly forensically   analyzed   to confirm the presence of the Pegasus software.


Union of India’s Stand


Union of India, through the  Minister of Railways, Communications and Electronics and Information Technology, took the stand in Parliament on 18th  July 2021, when asked about the alleged cyberattack and spyware use, that the reports published had no factual basis. The Minister also stated that the Amnesty report itself indicated that the mere mention of a particular number in the list did not confirm whether the same was infected by Pegasus or not. Further, the Minister stated that NSO had itself factually contradicted many of the claims made in the Amnesty report. Finally, he stated that the Indian statutory and legal regime relating to surveillance and interception of communication is extremely rigorous, and no illegal surveillance could take place.


Supreme Court’s decision to interfere


Material on record

The Court, initially had reservations regarding the lack of material, various other petitions have been filed in Court, including by individuals who were purportedly victims of the alleged Pegasus spyware attack. These

However, the subsequently filed petitions, as well as additional documents filed by others, have brought on record certain materials that cannot be brushed aside, such as the reports of reputed organizations   like Citizen Lab and affidavits of experts.

Additionally, the sheer volume of cross-referenced and crossverified reports from various reputable news organizations across the world along with the reactions of foreign governments and legal institutions also moved us to consider that this is a case where the jurisdiction of the Court may be exercised.

“Of course, the learned Solicitor General suggested that many of these reports are motivated and self-serving. However, such an omnibus oral allegation is not sufficient to desist from interference.”

National Security vis-à-vis Citizen’s Right to Privacy

Union of India was asked to clarify its stand regarding the allegations raised, and to provide information to assist the Court regarding the various actions taken by it over the past two years, since the first disclosed alleged Pegasus spyware attack. It was made clear to the Solicitor General on many occasions that it would not push the Union of India to provide any information that may affect the national security concerns of the country.

However, despite the repeated assurances and opportunities given, ultimately the Union of India has placed on record what they call a “limited affidavit”, which does not shed any light on their stand or provide any clarity as to the facts of the matter at hand.

“If the Respondent¬Union of India had made their stand clear it would have been a different situation, and the burden on us would have been different. Such a course of action taken by the Respondent¬Union of India, especially in proceedings of the present nature which touches upon the fundamental rights of the citizens of the country, cannot  be accepted.”

Union of India has justified its non¬submission of a detailed counter affidavit by citing security concerns. However,

“It is a settled position of law that in matters pertaining to national security, the scope of judicial review is limited. However, this does not mean that the State gets a free pass every time the spectre of “national security” is raised. National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this Court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review.”

Of course, the Union of India may decline to provide   information   when   constitutional   considerations exist, such as those pertaining to the security of the State, or when there is a specific immunity under a specific statute. However, it is incumbent on the State to not only specifically plead such constitutional concern or statutory immunity but they must also prove and justify the same in Court on affidavit. The Union of India must necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns. They must justify the stand that they take before a Court.

“The mere invocation of national security by the State does not render the Court a mute spectator.”

[Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, decided on 27.10.2021]


Counsels:

For petitioners: Senior Advocates Kapil Sibal, Shyam Divan, Rakesh Dwivedi, Dinesh Dwivedi, Meenakshi Arora, Colin Gonsalves, ML Sharma

For Union of India: Solicitor General Tushar Mehta

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has appointed an Expert Committee to look into the truth or falsity of the allegations in the Pegasus Spyware case, “taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country.”

Here is all you need to know about the case and the order of the Court


The Controversy


The Pegasus suite of spywares, being produced by an Israeli Technology firm, viz., the NSO Group, can allegedly be used to compromise the digital devices of an individual through zero click vulnerabilities, i.e., without requiring any action on the part of the target of the software. Once the software infiltrates   an individual’s device, it allegedly has the capacity to access the entire stored data on the device, and has real time access to emails, texts, phone calls, as well as the camera and sound recording capabilities of the device. Once the device is infiltrated using Pegasus, the entire control over the device is allegedly handed over to the Pegasus user who can then remotely control all the functionalities of the device and switch different features on or off.

The NSO Group purportedly sells this extremely powerful software only to certain undisclosed Governments and the end user of its products are “exclusively   government intelligence and law enforcement agencies” as per its own website. Reports indicate that individuals from nearly 45 countries are suspected to have been affected.


Why?


The compelling circumstances that have weighed with to appointed an Expert Committee:

  1. Right to privacy and freedom of speech are alleged to be impacted, which needs to be examined.
  2. The entire citizenry is affected by such allegations due to the potential chilling effect.
  3. No clear stand taken by the Respondent¬Union of India regarding actions taken by it.
  4. Seriousness accorded to the allegations by foreign countries and involvement of foreign parties.
  5. Possibility that some foreign authority, agency or private entity is involved in placing citizens of this country under surveillance.
  6. Allegations that the Union or State Governments are party to the rights’ deprivations of the citizens
  7.  Limitation under writ jurisdiction to delve into factual aspects. For instance, even the question of usage of the technology on citizens, which is the jurisdictional fact, is disputed and requires further factual examination.

Who?


“… it was an extremely uphill task to find and select experts who are free from prejudices, are independent and competent.”

Rather than relying upon any Government agencies or any, the Court constituted the Committee and shortlisted expert members based on biodatas and information collected independently. While the Court shortlisted and chose the most renowned experts available to be a part of the Committee, it also left it to the discretion of the learned overseeing judge to take assistance from any expert, if necessary, to ensure absolute transparency and efficiency.

Head: Justice R.V. Raveendran, former Judge, Supreme Court of India, assisted by:

  1. Mr. Alok Joshi, former IPS officer (1976 batch) with immense and diverse investigative experience and technical knowledge. He has worked as the Joint Director, Intelligence Bureau, the Secretary(R), Research and Analysis Wing and Chairman, National Technical Research Organisation.
  2. Dr. Sundeep Oberoi, Chairman, ISO/IEC JTC1 SC7 (International Organisation of   Standardisation/ International   Electro¬Technical   Commission/Joint Technical Committee), a sub¬committee which develops and facilitates standards within the field of software products and systems. He is also a part of the Advisory Board of Cyber Security Education and Research Centre at Indraprastha Institute of Information Technology, Delhi and is a globally recognized as a cyber security expert.

Three members of the Technical Committee:

  1. Dr. Naveen Kumar Chaudhary, Professor (Cyber Security and Digital Forensics) and Dean, National Forensic Sciences University, Gandhinagar, Gujarat. He has over two decades of experience as an academician, cyber security enabler and cyber security expert and specializes in cyber security policy, network vulnerability assessment and penetration testing.
  2. Dr. Prabaharan P., Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala. He has two decades of experience in computer science and security areas. His areas of interest are malware detection, critical infrastructural security, complex binary analysis, AI and machine learning.
  3. Dr. Ashwin Anil Gumaste, Institute Chair Associate Professor (Computer Science and Engineering), Indian Institute of Technology, Bombay, Maharashtra. He has been granted 20 US patents and has published over 150 papers and authored 3 books in his field. He has received several National awards including the Vikram Sarabhai Research Award (2012) and Shanti Swarup Bhatnagar Prize for Science and Technology (2018). He has also held the position of Visiting Scientist at the Massachusetts Institute of Technology, USA.

What?


The terms of reference of the Committee are as follows:

To enquire, investigate and determine:

  1. Whether the Pegasus suite of spyware was used on phones or other devices of the citizens of India to access stored data, eavesdrop on conversations, intercept information and/or for any other purposes not explicitly stated herein?
  2. The details of the victims and/or persons affected by such a spyware attack.
  3. What   steps/actions   have   been   taken   by   the Respondent-Union of India after reports were published in the year 2019 about hacking of WhatsApp accounts of Indian citizens, using the Pegasus suite of spyware.
  4. Whether any Pegasus suite of spyware was acquired by the Respondent-Union of India, or any State Government, or any central or state agency for use against the citizens of India?
  5. If any governmental agency has used the Pegasus suite of spyware on the citizens of this country, under what law, rule, guideline, protocol or lawful procedure was such deployment made?
  6. If any domestic entity/person has used the spyware on the citizens of   this   country,   then   is   such a use authorised?
  7. Any other matter or aspect which may be connected, ancillary or incidental to the above terms of reference, which the Committee may deem fit and proper to investigate.

To make recommendations:

  1. Regarding enactment or amendment to existing law and procedures surrounding surveillance and for securing improved right to privacy.
  2. Regarding enhancing and improving the cyber security of the nation and its assets.
  3. To ensure prevention of invasion of citizens’ right to privacy, otherwise than in accordance with law, by State and/or non-State entities through such spywares.
  4. Regarding the establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance of their devices.
  5. Regarding the setting up of a well¬equipped independent premier agency to investigate cyber security vulnerabilities, for threat assessment relating to cyberattacks and to investigate instances of cyberattacks in the country.
  6. Regarding any ad¬hoc arrangement that may be made by this Court as an interim measure for the protection of citizen’s rights, pending filling up of lacunae by the Parliament.
  7. On any other ancillary matter that the Committee may deem fit and proper.

How?


(1) The Committee constituted is authorised to ¬

(a) devise its own procedure to effectively implement and answer the Terms of Reference;

(b) hold such enquiry or investigation as it deems fit;and

(c) take statements of any person in connection with the enquiry and call for the records of any authority or individual.

(2)  Justice R. V. Raveendran, former Judge, Supreme Court of India will oversee the functioning of the Committee with respect to the methodology to be adopted, procedure to be followed, enquiry and investigation that is carried out and preparation of the report.

(3) The overseeing Judge is at liberty to take the assistance of any serving or retired officer(s), legal expert(s) or technical expert(s) in discharge of his functions.

(4) The overseeing Judge to fix the honorarium of the members of the Committee in consultation with   them, which shall be paid by the Respondent¬Union of India immediately.

(5) The Respondent¬Union of India and all the State Governments, as well as agencies/authorities under them, are directed to extend full facilities, including providing support with respect to infrastructure needs, manpower, finances, or any other matter as may be required  by the Committee or the overseeing former Judge to effectively and expeditiously carry out the task assigned to them by this Court.

(6) Mr. Virender Kumar Bansal, Officer on Special Duty/ Registrar, Supreme Court of India, to coordinate between the Committee, the learned overseeing Judge and the Central/State Governments to facilitate communication and ensure smooth functioning and expeditious response to, and implementation of,   requests made by the Committee, the learned overseeing Judge or other members, tasked to assist him.


The Committee has to prepare the report after a thorough inquiry and place it before the Supreme court, expeditiously.

The matter will next be taken up after 8 weeks.

[Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, decided on 27.10.2021]

___________________________________________________________________________________________________________________

Counsels:

For petitioners: Senior Advocates Kapil Sibal, Shyam Divan, Rakesh Dwivedi, Dinesh Dwivedi, Meenakshi Arora, Colin Gonsalves, ML Sharma

For Union of India: Solicitor General Tushar Mehta

Legislation UpdatesRules & Regulations

The Government of Gujarat has issued the Industrial Relations (Gujarat) Rules, 2021 vide notification dated October 5, 2021. The Rules shall extend to the whole of Gujarat in respect to the industrial establishments and matters for which the Gujarat Government is the appropriate Government and shall come into the force from the commencement of the Industrial Relations Code, 2020.

 

Key provisions of the Rules are:

  • Works Committee: The works committee shall be constituted, consisting of an equal number of representatives from employer & workers side, maximum members up to 20.
  • Grievance redressal Committee: The grievance addressal committee shall consist of an equal number of representatives from employer & workers side, maximum members up to 10.
  • Standing Orders: The employer, who adopts the model standing order of the Central Government, shall intimate the concerned certifying officer electronically the specific date from which the provisions of the model standing order have been adopted. On receipt of information the certifying officer within a period of 30 days from such receipt may give his observation & if no observation is made by the certifying officer within a period of 30 days the standing order shall be deemed to have been adopted by the employer.
  • Mechanism for resolution of Industrial Dispute: Chapter VI of the Rules prescribes the mechanism for resolution of Industrial dispute.
  • Strikes and Lockouts: Chapter VII of the Rules prescribe the provision for strikes and lockouts.
  • Lay-Off, Retrenchment and Closure: Special provision with respect to lay off, retrenchment and closure are prescribed under Chapter IX of the Rules.
  • Trade Unions: Provisions for registration, maintenance of registers by the Trade Unions, subscriptions for registered Trade Union, filing of Annual Return by the registered Trade Union, annual audit of accounts of Trade Unions etc are prescribed under the Rules.
  • Key Forms under the code are-
    1. Form-I – Memorandum of settlement arrived at during conciliation/ or settlement arrived at between the employer and his workers otherwise than in the course of conciliation proceeding.
    2. Form-II – Notice of change of service conditions proposed by an employer
    3. Form-III – Agreement for voluntary arbitration
    4. Form-IV – Authorization by a worker, group of worker, employer, group of employer to be represented in a proceeding before the authority under this code.
    5. Form-VI – Notice of strike to be given by union (name of union)/ group of workers.
    6. Form-VII – Notice of lock-out to be given by an employer of an industrial establishment.
    7. Form-VIII – Notice of intimation of retrenchment/ closure to be given by an employer to the state government under the provisions of chapter ix of the industrial relations code, 2020 and rules made there under.
    8. Form-IX – Application for permission of lay-off / continuation of layoff / retrenchment/ closure to be given by an employer / industrial establishment / undertaking to the state government under the provisions of chapter x of the industrial relations code, 2020 and rules made there under.
    9. Form X- Notice to the employer who committed an offence for the First time under this code, for compounding of offence under Sub-section (4) of section 89.
    10. Form XI- Complaint under section 91 of the industrial relation code, 2020
    11. Form-XII – Application for Registration of Trade Union
    12. Form-XIII – Certificate of Registration of Trade Union
    13. Form XXI- Annual Return

*Tanvi Singh, Editorial Assistant has reported this brief.

Legislation UpdatesNotifications

On July 29, 2021, the Government has announced 27% reservation for the OBCs (Other Backward Classes) and 10% quota for the Economically Weaker Sections (EWS) in the All India Quota (AIQ) scheme for undergraduate (UG) and postgraduate (PG) medical / dental courses (MBBS / MD / MS / Diploma / BDS / MDS) from 2021-22 onwards.

Source: PIB

Appointments & TransfersNews

Shri Narendra Modi

Prime Minister and also in-charge of: Ministry of Personnel, Public Grievances and Pensions; Department of Atomic Energy; Department of Space; All important policy issues; and All other portfolios not allocated to any Minister

Cabinet Ministers

1.

Shri Raj Nath Singh Minister of Defence

2.

Shri Amit Shah Minister of Home Affairs; and Minister of Cooperation

3.

Shri Nitin Jairam Gadkari Minister of Road Transport and Highways

4.

Smt. Nirmala Sitharaman Minister of Finance; and Minister of Corporate Affairs

5.

Shri Narendra Singh Tomar Minister of Agriculture and Farmers Welfare

6.

Dr. Subrahmanyam Jaishankar Minister of External Affairs

7.

Shri Arjun Munda Minister of Tribal Affairs

8.

Smt. Smriti Zubin Irani Minister of Women and Child Development

9.

Shri Piyush Goyal Minister of Commerce and Industry; Minister of Consumer Affairs, Food and Public Distribution; and Minister of Textiles

10.

Shri Dharmendra Pradhan Minister of Education; and Minister of Skill Development and Entrepreneurship

11.

Shri Pralhad Joshi Minister of Parliamentary Affairs; Minister of Coal; and Minister of Mines

12.

Shri Narayan Tatu Rane Minister of Micro, Small and Medium Enterprises

13.

Shri Sarbananda Sonowal Minister of Ports, Shipping and Waterways; and Minister of AYUSH

14.

Shri Mukhtar Abbas Naqvi Minister of Minority Affairs

15.

Dr. Virendra Kumar Minister of Social Justice and Empowerment

16.

Shri Giriraj Singh Minister of Rural Development; and Minister of Panchayati Raj

17.

Shri Jyotiraditya M. Scindia Minister of Civil Aviation

18.

Shri Ramchandra Prasad Singh Minister of Steel

19.

Shri Ashwini Vaishnaw Minister of Railways;Minister of Communications; and Minister of Electronics and Information Technology

20.

Shri Pashu Pati Kumar Paras Minister of Food Processing Industries

21.

Shri Gajendra Singh Shekhawat Minister of Jal Shakti

22.

Shri Kiren Rijiju Minister of Law and Justice

23.

Shri Raj Kumar Singh Minister of Power; and Minister of New and Renewable Energy

24.

Shri Hardeep Singh Puri Minister of Petroleum and Natural Gas; and Minister of Housing and Urban Affairs

25.

Shri Mansukh Mandaviya Minister of Health and Family Welfare; and Minister of Chemicals and Fertilizers

26.

Shri Bhupender Yadav Minister of Environment, Forest and Climate Change; and Minister of Labour and Employment

27.

Dr. Mahendra Nath Pandey Minister of Heavy Industries

28.

Shri Parshottam Rupala Minister of Fisheries, Animal Husbandry and Dairying

29.

Shri G. Kishan Reddy Minister of Culture;Minister of Tourism; and Minister of Development of North Eastern Region

30.

Shri Anurag Singh Thakur Minister of Information and Broadcasting; and Minister of Youth Affairs and Sports

Ministers of State (Independent Charge)

1.

Rao Inderjit Singh

Minister of State (Independent Charge) of the Ministry of Statistics and Programme Implementation;Minister of State (Independent Charge) of the Ministry of Planning; and Minister of State in the Ministry of Corporate Affairs

2.

Dr. Jitendra Singh

Minister of State (Independent Charge) of the Ministry of Science and Technology;Minister of State (Independent Charge) of the Ministry of Earth Sciences; Minister of State in the Prime Minister’s Office; Minister of State in the Ministry of Personnel, Public Grievances and Pensions; Minister of State in the Department of Atomic Energy; and Minister of State in the Department of Space

Ministers of State

1.

Shri Shripad Yesso Naik Minister of State in the Ministry of Ports, Shipping and Waterways; and Minister of State in the Ministry of Tourism

2.

Shri Faggansingh Kulaste Minister of State in the Ministry of Steel; and Minister of State in the Ministry of Rural Development

3.

Shri Prahalad Singh Patel Minister of State in the Ministry of Jal Shakti; and Minister of State in the Ministry of Food Processing Industries

4.

Shri Ashwini Kumar Choubey Minister of State in the Ministry of Consumer Affairs, Food and Public Distribution; and Minister of State in the Ministry of Environment, Forest and Climate Change

5.

Shri Arjun Ram Meghwal Minister of State in the Ministry of Parliamentary Affairs; and Minister of State in the Ministry of Culture

6.

General (Retd.) V. K. Singh Minister of State in the Ministry of Road Transport and Highways; and Minister of State in the Ministry of Civil Aviation

7.

Shri Krishan Pal Minister of State in the Ministry of Power; and Minister of State in the Ministry of Heavy Industries

8.

Shri Danve Raosaheb Dadarao Minister of State in the Ministry of Railways;Minister of State in the Ministry of Coal; and Minister of State in the Ministry of Mines

9.

Shri Ramdas Athawale Minister of State in the Ministry of Social Justice and Empowerment.

10.

Sadhvi Niranjan Jyoti Minister of State in the Ministry of Consumer Affairs, Food and Public Distribution; and Minister of State in the Ministry of Rural Development

11.

Dr. Sanjeev Kumar Balyan Minister of State in the Ministry of Fisheries, Animal Husbandry and Dairying

12.

Shri Nityanand Rai Minister of State in the Ministry of Home Affairs

13.

Shri Pankaj Chaowdhary Minister of State in the Ministry of Finance

14.

Smt. Anupriya Singh Patel Minister of State in the Ministry of Commerce and Industry

15.

Prof. S. P. Singh Baghel Minister of State in the Ministry of Law and Justice

16.

Shri Rajeev Chandrasekhar Minister of State in the Ministry of Skill Development and Entrepreneurship; and Minister of State in the Ministry of Electronics and Information Technology

17.

Sushri Shobha Karandlaje Minister of State in the Ministry of Agriculture and Farmers Welfare

18.

Shri Bhanu Pratap Singh Verma Minister of State in the Ministry of Micro, Small and Medium Enterprises

19.

Smt. Darshana Vikram Jardosh Minister of State in the Ministry of Textiles; and Minister of State in the Ministry of Railways

20.

Shri V. Muraleedharan Minister of State in the Ministry of External Affairs; and Minister of State in the Ministry of Parliamentary Affairs

21.

Smt. Meenakashi Lekhi Minister of State in the Ministry of External Affairs; and Minister of State in the Ministry of Culture

22.

Shri Som Parkash Minister of State in the Ministry of Commerce and Industry

23.

Smt. Renuka Singh Saruta Minister of State in the Ministry of Tribal Affairs

24.

Shri Rameswar Teli Minister of State in the Ministry of Petroleum and Natural Gas; and Minister of State in the Ministry of Labour and Employment

25.

Shri Kailash Choudhary Minister of State in the Ministry of Agriculture and Farmers Welfare

26.

Smt. Annpurna Devi Minister of State in the Ministry of Education

27.

Shri A. Narayanaswamy Minister of State in the Ministry of Social Justice and Empowerment

28.

Shri Kaushal Kishore Minister of State in the Ministry of Housing and Urban Affairs

29.

Shri Ajay Bhatt Minister of State in the Ministry of Defence; and Minister of State in the Ministry of Tourism

30.

Shri B. L. Verma Minister of State in the Ministry of Development of North Eastern Region; and Minister of State in the Ministry of Cooperation

31.

Shri Ajay Kumar Minister of State in the Ministry of Home Affairs

32.

Shri Devusinh Chauhan Minister of State in the Ministry of Communications

33.

Shri Bhagwanth Khuba Minister of State in the Ministry of New and Renewable Energy; and Minister of State in the Ministry of Chemicals and Fertilizers

34.

Shri Kapil Moreshwar Patil Minister of State in the Ministry of Panchayati Raj

35.

Sushri Pratima Bhoumik Minister of State in the Ministry of Social Justice and Empowerment

36.

Dr. Subhas Sarkar Minister of State in the Ministry of Education

37.

Dr. Bhagwat Kishanrao Karad Minister of State in the Ministry of Finance

38.

Dr. Rajkumar Ranjan Singh Minister of State in the Ministry of External Affairs; and Minister of State in the Ministry of Education

39.

Dr. Bharati Pravin Pawar Minister of State in the Ministry of Health and Family Welfare

40.

Shri Bishweswar Tudu Minister of State in the Ministry of Tribal Affairs; and Minister of State in the Ministry of Jal Shakti

41.

Shri Shantanu Thakur Minister of State in the Ministry of Ports, Shipping and Waterways

42.

Dr. Munjapara Mahendrabhai Minister of State in the Ministry of Women and Child Development; and Minister of State in the Ministry of AYUSH

43.

Shri John Barla Minister of State in the Ministry of Minority Affairs

44.

Dr. L. Murugan Minister of State in the Ministry of Fisheries, Animal Husbandry and Dairying; and Minister of State in the Ministry of Information and Broadcasting

45.

Shri Nisith Pramanik Minister of State in the Ministry of Home Affairs; and Minister of State in the Ministry of Youth Affairs and Sports
Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., expressed that,

In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The non-fulfilment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of such ill-treatment.

Factual Matrix

Petitioners owned agricultural lands adjacent to a National Highway and on the said lands, they had their residential houses, wells, fruit trees, bore-well, etc. which were also adjacent to National Highway.

The said road came to be converted into State Highway without payment of any compensation while expansion of the same.

It has been submitted that, respondents are trying to take forcible possession of the lands of the petitioners and respondent authorities cautioned the petitioners to use police force while taking possession. Though petitioners made it clear that they are not opposing the road widening in question but the authority should acquire their respective lands for up-gradation of the roads as per the due procedure of law.

The said up-gradation is being done in phase wise manner and petitioners are concerned with the phase of Dhangar Pimpri to Wadigodri for which the authorities are attempting to take the forceful possession of their lands under the pretext of resolution regarding adjacent lands of road which need not require acquisition.

Further, it was added that the action initiated by the respondent-authorities thereby taking forcible possession of the lands belonging to the petitioners for road widening by showing the Government Resolution was contrary to the provision of Article 300-A of the Constitution of India.

Respondent authorities stand was that they are expending the road on the existing road of 30 meters. They are upgrading the same and there is no need to acquire the lands of the adjacent land holders as they won’t be affected by the same.

Analysis, Law and Decision

Width of the road – 12 or 30 metres?

As per standards, the width of the State Highway should be 30 meters. The road in question was a District Road. As per standard width of the District Road is 12 meters. By way of notification dated 19th April, 1967, the road in question was declared as State Highway in the year 1967. The question comes when District Road came to be declared as State Highway. How the width of the road is enhanced to 30 meters. Was there any acquisition of lands of adjacent land owners by way of proceedings under the old Land Acquisition Act of 1894? No record is forthcoming from both sides in order to clear the position.

Bench stated that merely, producing maps of certain villages and copies of road development plans, may not be helpful to arrive at a conclusion and record finding to that effect as the said would be an erroneous exercise. Further, it was noted by the Bench that at some places the width of the road of 30 meters and at some, it was less than 30 meters.

The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a constitutional right under Article 300 A of the Constitution.

Article 300 A provides that no person shall be deprived of his property save by authority of law.

 Is there an obligation to pay compensation under Article 300 A?

High Court remarked that obligation to pay compensation, though may not expressly included in Article 300 A, can be inferred from that Article. To forcibly dispossess a person of his private property without following due process of law is certainly violative of human right and so also, constitutional right provided under Article 300 A of the Constitution.

Elaborating more, High Court held that depriving persons of their immovable properties, was a clear violation of Article 21 of the Constitution.

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.

In view of the present facts of the case, High Court expressed that, respondents are the State authorities and Central authorities constructing National Highway. They are expected to be model litigants and are expected to respect the rights of petitioners and follow due procedure of law when property is likely to be acquired.

In a society governed by rule of law, there should not be arbitrariness in any decision.

In the instant case, there was no conclusive proof to establish the width of road to be 30 meters and no question of acquiring lands of petitioners.

Hence, there should be a joint measurement of road in presence of the petitioners and respondents under the supervision of District Collector, Jalna and if the width of the road at respective villages is found to be 30 meters, there shall not any question of acquisition of adjacent lands of the petitioners and if otherwise, then Centre and State shall follow due process of law in acquiring the same. [Bhagauji v. State of Maharashtra, 2021 SCC OnLine Bom 982, decided on 3-07-2021]


About the Bench:

JUSTICE SANJAY VIJAYKUMAR GANGAPURWALA

He was born on 24-05-1962.

Stood third in the order of merit in LL.B. examination. Started practice in the year 1985 and joined Chambers of advocate Shri S.N.Loya. Practiced in trial Court, High Court and Debt Recovery Tribunal. Was an advocate for Financial Institutions such as Central Bank of India, Bombay Mercantile Cooperative Bank, Jalgaon Janata Sahakari Bank, many Corporate bodies and Dr.Babasaheb Ambedkar Marathwada University. Also represented Government before Justice Mane Commission. Had privilege to be the advocate of the Hon’ble the Chief Justice of the Bombay High Court.

Extracurricular activities: Is a keen sportsman played lawn tennis at National level. Represented Dr. Babasaheb Ambedkar Marthwada University six times and captained it twice in All India University Tournament. Played Basketball at State level. He was the Honourary part-time lecturer in M.P.Law College since 1991 till date of elevation as Additional Judge of the Bombay High Court on 13-3-2010.

JUSTICE SHRIKANT DATTATRAY KULKARNI

Graduated in Commerce (Hons.) from G.A. College of Commerce, Sangli. Completed LL.B. in the year 1984 from N.S. Law College, Sangli. Did LL.M. from Bharti Vidyapeeth, Pune and Diploma in Cyber Law (D.I.C.L.) from Government Law College, Mumbai and enrolled as an Advocate with Bar Council of Maharashtra & Goa in the year 1985.

Practiced at various places in Sangli District and joined judiciary in the year 1990. Promoted as Addl.District Judge in the year 2002.

Worked as Registrar (Personnel) and Registrar (Judicial) at Principal seat Bombay from 2013 to 2015. Appointed as Principal District & Sessions Judge, Ahmednagar and worked from the year 2015 to 13th July 2017.

Worked as Member Secretary, Maharashtra State Legal Services Authority from 14th July 2017 to 13th January 2020.

Elevated as Judge of Bombay High Court on 14th January 2020.


SOURCE: Bombay High Court Website

Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of A. Muhamed Mustaque and Kauser Edappagath, JJ., addressed the issue relating to controversial regulations of the U.T. of Lakshadweep. The Bench granted the petitioner liberty to raise suggestions, objections etc. even after expiry of outer time limit of 21 days stipulated for public opinion.

In the instant petition, the petitioner, a native of Kavaratti in Lakshadweep Islands had approached the Court requesting for issuance of writ of mandamus directing Administer of Lakshadweep to issue a fresh public notice giving 30 days’ time to the public to submit their comments, suggestions etc. with respect to controversial draft Regulations. The petitioner contended that according to decision taken by the Committee of Secretaries held on 10-01-2014 on Pre-legislative Consultation Policy there should be a minimum period of 30 days for public to raise their views/objections for any draft legislation. Noticeably, the Lakshadweep Town and Country Planning Regulation, 2021 which was published on 28-04-2021, regarding which it had been stipulated by the authorities that members of public can submit the comments, suggestions etc. within twenty one days (on or before 19-05-2021) through registered post or email. The petitioner argued that on account of Covid restrictions in the island, many like him could not raise their suggestions/objections within that time. The petitioner also argued that the stipulation of outer time limit of 21 days was against the decision taken by the Committee of Secretaries on 10-01-2014.

The ASGI submitted that stipulation of 30 days is a matter relating to administrative expediency to be followed and that could not be construed as a right conferred upon a citizen as a matter of right to seek 30 days’ outer limit for raising such objection. Any administrative instruction of such nature therefore could not be relied upon to seek a writ of mandamus. Similarly, the counsel for Lakshadweep Administration argued that the administration had received 593 comments, suggestions, objections etc. and the same had been forwarded to the Ministry of Home Affairs.

Opining that it was for the Ministry to consider the suggestions, objections etc. as raised against the draft Regulations, the Bench stated it would not be proper for the Court to direct the Central Government or the Administrator to accept any suggestion or comments. However, the Bench added,

In any system of governance, the Government would be eager to consider any such suggestion which may ultimately enable the Government to formulate their own decisions while granting approval of draft Regulations. Therefore, it is for the Central Government to consider whether any suggestions, comments or objections to be made by the petitioner or any person have to be accepted or not after the expiry of the time in the notification.

In the above backdrop, the Bench directed that if the petitioner forwards his suggestions/comments to the Administrator within two weeks, the same shall be forwarded to the Central Government and it is for the Central Government to consider whether such objection, comments etc. is to be accepted or not.[Mohammed Sadique v. U. T. of Lakshadweep, 2021 SCC OnLine Ker 2352, decided on 31-05-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Joby Cyriac

For Union of India: ASGI. K.M.Nataraj

For U.T. of Lakshadweep: Adv. S.Manu

Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., remarked that,

“I am conscious that every judicial verdict must be anchored only in law and logic. But a judge must also exhibit awareness of what is going on. His inner antena should catch the signals. To create such an ambience, before dictating this Judgment, I listened to T.M.Krishna’s “poramboke padal”.

 I recalled the words of Nithyanand Jeyaraman that while encroachment of water bodies may be regularised by law by issuing pattas, “Nature” will not take note of the same. I think it was Pt.Deen Dayal Upadhyaya who said that we must treat Nature like a milk-yielding cow. We must milk it and not slaughter it.”

Petitioners sought stoppage of quarrying operations conducted by respondent 5 who had been granted mining lease to quarry rough stone.

It was the petitioner’s contention that the leaseholder had breached the permit conditions as powerful explosives were used.

They stated that blasting operations seriously endanger the lives of the farm-hands who are working in the nearby agricultural fields. There is a considerable generation of dust causing air pollution. The leaseholder has also encroached on a water body. He has blocked the customary pathway of the villagers and even the local Panchayat passed a resolution favouring the closure of the quarry.

District Administration had permitted respondent 5 to quarry Tirupani rock for the purpose of earning revenue.

It takes probably a million years for such rocks to be formed while it takes a few minutes to destroy them.

Whether executive authorities can permit the destruction of such hillocks?

It was stated that it is well settled that the Government, as well as the citizens, have a constitutional obligation to protect the environment and ecology.

As per the doctrine of inter-generational equity adumbrates that environment is not only for the benefit of the present but also the future generations.

In the Supreme Court decision of M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388, held that the State as a trustee of all-natural resources is under a duty to protect them. Resources meant for public use cannot be converted into private ownership.

In Intellectuals Forum v. State of A.P., (2006) 3 SCC 549, it was held that it is the responsibility of the State to protect the environment.

In N.D. Jayal v. Union of India, (2004) 9 SCC 362, the Supreme Court observed that the right to the environment has been declared as a fundamental right.

Bench stated that Man has continued his predatory activities without any break and Nature is losing her patience.

Adding to the above remark, Court also stated that the rubicon is about to be crossed and retribution is in the offing. The time for course correction is now or never. 

Bench stated it was time to implant basic structure doctrine by way of analogy into the principle of sustainable development evolved in environmental law.

While the administration can tap the hills and hillocks for mineral resources, exploitation cannot lead to their complete destruction.

It was noted that at the rate at which the exploitation had been going on, the hillock itself would be extinct in a few years.

Why Hills and Hillocks cannot be given away for mining?

High Court stated that we are a democratic republic and the Government cannot arbitrarily give away hills and hillocks for exploitation.

Merely because the process of issuance of mining lease was conducted in consonance with the statutory procedure, that would not confer any immunity against judicial scrutiny. Unless there are supervening public interest considerations, hills and hillocks cannot be given away for mining.

Bench referred to the decision of Supreme Court in Lal Bahadur v. State of U.P., (2018) 15 SCC 407, in this decision, Court quashed the master plan whereby use of area in question for green belt in the master plan was changed.

Right to Environment, Right to Life & Right to Development

Speaking of the right to environment, it means that one has the right to retain the advantages and benefits conferred naturally on the environment. It must be conceded that no right can be enforced absolutely. Need may often arise to balance the said right with the right to development. But then the onus lies on the executive to demonstrate that there is a need to subordinate the right to environment to the right to development.

High Court observed that it is facile to assume that destroying the hillock in question would be of no consequence. Also, the official respondents did not demonstrate as to why the hillock in question should be destroyed to enrich the exchequer of the day by a few million rupees. The case was not of wherein there was lack of minerals or they could not be sourced from somewhere else. Hence, no compelling public interest.

Adding more to the reasoning, Court stated that no doubt, Tamil Nadu Minerals Minor Concession Rules, 1959, applies to all the lands in the State of Tamil Nadu and this includes hills and hillocks too, but as per the limitations to exercise the statutory power conferred by such Rules, one of the limitation states that the authorities will not allow the destruction of hills and hillocks by mechanically issuing mining licenses.

Bench stopped the quarry operations looking at the exploitation that has gone beyond the threshold level, hence writ of mandamus was issued.

Lastly, Court noted the fact that respondent 5 cannot be faulted as she has been restrained from enjoying the fruits of the lease well before the expiry of the same, hence she was permitted to make representation to authorities for a refund of proportionate lease amount for the unexpired period.[K. Santhanam v. District Collector, 2021 SCC OnLine Mad 2092, decided on 26-04-2021]


Advocates before the Court:

For Petitioners:: Mr. V. Malaiyendran

For R-1 to R-4 :: Mrs. M. Rajeswari, Government Advocate.

For R-5: Mr H. Arumuga

Case BriefsHigh Courts

Delhi High Court: The Division Bench of D.N. Patel, CJ and Jyoti Singh, J., reiterated the settled law that Court cannot direct the Government to exercise the power in a particular manner.

Petitioner sought directions to the respondents to exempt the registered associations, organisations or persons, defined under Section 2(1)(m) of the Foreign Contribution (Regulation) Act, 2010, especially prior permission under Section 11 of the said Act to receive foreign contributions.

Further, directions were also sought to relax the stringent and time-consuming pre-conditions for receiving foreign contributions in the form of donations, by exercising powers under Section 50 of the Act.

Settled Law

Exemptions and relaxations under different Statutes are not a matter of right. It is the Government’s prerogative power to exempt or give relaxations with or without stringent conditions. It is not for the Court to direct the Government to exercise the power in a particular manner.

Bench noted that the petitioner did not approach the competent authority seeking exemption under the Act.

Therefore, High Court directed the Competent Authority under the Ministry concerned to treat the present petition as a representation and decide the issues raised and grievances ventilated in accordance with the law, relevant rules, regulations and Governmental policies applicable to the present matter as early as practicable.

In view of the above terms, the petition was disposed of. [Karmodaya Charitable Trust v. Union of India, 2021 SCC OnLine Del 2315, decided on 18-05-2021]


Advocates before the Court:

For the petitioner: Manoj V. George, Advocate

For the Respondents: Chetan Sharma, Ld. ASG,

Apoorv Kurup, CGSC with Vartika Mishra, Vinay Yadav, Akshay Gadeock, Amit Gupta & Sahaj Garg, Advocates

Case BriefsCOVID 19High Courts

Allahabad High Court: The Division Bench of Ajit Kumar and Siddhartha Varma, JJ.,  while holding that its’ their constitutional duty to save innocent people from the pandemic and in order to break the chain of COVID-19 pandemic, people are to be restrained from going outside their homes for a week, expressed that:

Those in the helm of affairs of governance are to be blamed for the present chaotic health problems and more so when there is a democracy which means a government of the people, by the people and for the people.

It is a shame that while the Government knew of the magnitude of the second wave it never planned things in advance.

Recent surge in the COVID-19 pandemic has virtually incapacitated the medical infrastructure in the State of U.P. and especially in cities like Prayagraj, Lucknow, Varanasi, Kanpur and Gorakhpur.

“…pandemic is teasing the system in a situation where patients have outnumbered the hospital beds and people are just running from pillar to post and in this process attendants of patients are not only getting infected but others in public are also getting infected and a complete chain has got formed.”

Court stated that before the pandemic spirals to engulf in it the entire population of these badly hit districts, it is necessary to take some harsh steps in larger public interest.

Further, the Bench remarked that it understands the limitation of the government in creating infrastructure to meet the challenge of COVID-19 and at the moment efforts are afoot to create the same but before all the efforts are translated into action much water would have flown under the bridge to the utter dismay of a large population of have nots.

“…in a democracy there are legitimate expectations from the government to adopt measures to meet public health issues like all other issues of public interest. Public interest expects judiciary to remain vigilant to all the issues which if not addressed to in time, will result in the failure of the system which is meant to safeguard public interest.”

Adding to the above, High Court stated that if people die of pandemic in a large number due to paucity of sufficient medical aid it would be the governments to blame that failed to counter the pandemic even after one long year of experience and learning. One would only laugh at us that we have enough to spend on elections and very little to spend on public health.

Calling early testing scheme or plan a farce, Court elaborated stating that the reports are neither updated before 72 hours nor, samples are taken care of, owing to the shortage of manpower. Only VVIPs have been getting the reports within 6-12 hours.

Economy, economy and economy is the only tune that the government is all the time harping upon, but bread and butter if you take to a person who needs oxygen and medication, it will be of no use to him.

Pomp show of Development

Calling out the Government, Bench expressed that if hospitals’ staff and medicos go ill for the relentless services to cure people in the pandemic, people would start losing their lives and all pomp and show of development would be of no avail.

Looking at the present situation, Court stated that night curfew in the name of Corona Curfew and Weekend Curfew are nothing else but a mere eyewash.

Not being satisfied with the Government efforts, Court stated that people are largely not following the Court’s Order for putting masks on their faces nor, the police could ensure 100% masking till date.

Due to the elections being conducted, police was virtually shifted to polling places giving priority to election above public health.

No Social Distancing

High Court stated that on many occasions in various political rallies masks were never worn by people. In our considered view action is liable to be taken against the organisers who did not anticipate such eventualities under the Uttar Pradesh Public Health Epidemic Diseases Act, 2020 and/ or any other relevant Act in force.

Admission of patients to ICUs have been largely done on the recommendations of VIPs. Even supply of life saving anti-viral drug namely Remdesivir is being provided only on the recommendation of VIPs. VIPs and VVIPs are getting their RT-PCR report within 12 hours, whereas, ordinary citizen is kept waiting for such reports for two to three days and thus, spreading further infection to other members of his/her family.

If popular government has its own political compulsions in not checking public movements during this pandemic, we cannot remain mere passive spectators.

We can’t shirk away from our constitutional duty to save innocent people from the pandemic which is spreading due to the negligence of a few.

Direction passed by the Court:

  • All establishments be it government or private, except financial institutions and financial departments, medical and health services, industrial and scientific establishments, essential services including municipal functions, and public transport, shall remain closed till 26th April, 2021. The judiciary will, however, function on its own discretion;
  • All shopping complexes and malls shall remain closed till 26th April, 2021;
  • All grocery shops and other commercial shops excluding medical shops, with more than three workers, shall remain closed till 26th April, 2021;
  • All hotels, restaurants and even the small eating points on thelas etc. shall remain closed till 26th April, 2021;
  • All institutions like educational institutions and other institutions relating to other disciplines and activities be it government, semi-government or private shall remain closed including for their teachers and instructors and other staff till 26th April, 2021 (this direction is for the whole of Uttar Pradesh);
  • No social functions and gatherings including marriage functions shall be permitted till 26th April, 2021. However, in case of already fixed marriages a necessary further permission would have to be taken from the District Magistrate of the concerned district. Gatherings would be limited to 25 persons and the district magistrate concerned shall take a decision after giving due consideration to the prevailing situation of the impact of Covid 19 including notification of containment zones in the area where such marriage has to take place;
  • All religious activities in public of any kind is directed to remain suspended till 26th April, 2021;
  • All religious establishments of any kind are directed to remain closed till 26th April, 2021;
  • All hawkers including fruits and vegetable vendors, milk vendors and bread vendors, shall go off the road by 11 AM every day till 26th April, 2021;
  • Containment zones shall be notified every day in two leading Hindi and English newspapers having wide circulation in the districts of Prayagraj, Lucknow, Varanasi, Kanpur Nagar/ Dehat and Gorakhpur.
  • All public movements on roads would remain restricted completely, subject to above directions. Movements would be only allowed in case of medical help and emergencies.
  • In addition to the above directions, we direct the State Government to go robust for implementing the current vaccination programme.

Court directed for the order to be sent to Chief Secretary, Government of Uttar Pradesh today to enforce the above directions from the night of 19-04-2021 till 26-04-2021 in the cities of Prayagraj, Lucknow, Varanasi, Kanpur Nagar, and Gorakhpur.

Our above directions are nowhere close to a complete lockdown. 

While concluding the High Court remarked that:

In this order if we have not imposed a lockdown it does not mean that we do not believe in it. We are still of the view that if we want to break the chain a lockdown for a duration of at least two weeks is a must.

 Government shall consider the imposition of a complete lockdown in the entire state.

Matter to be put up again on 26-04-2021. [In-Re Inhuman Condition At Quarantine Centres And For Providing Better Treatment To Corona Positive v. State of U.P., 2021 SCC OnLine All 273, decided on 19-04-2021]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., addressed an issue in light of the principles of judicial review explained that the Government must have freedom of contract.

 “…fair play in the joints is a necessary concomitant for an administrative body, functioning in an administrative sphere or quasi-administrative sphere.”

Factual Matrix

Petitioner was awarded a contract by the respondent – Navi Mumbai Municipal Corporation for a period of 5 years of the work of mechanized housekeeping and multi-purpose services in its health centres, which came to be terminated in 2017 due to non-satisfactory performance.

Issue in the Writ Petitions 

  • Fresh Tender issued for the same work but with a pre-qualification criterion that an eligibility condition providing that “the contractors whose work contract is terminated due to unsatisfactory services or are blacklisted would not be eligible to participate in the tender”

Arbitration Proceedings

On being aggrieved with the termination of contract, arbitration proceedings by the petitioner were initiated against the Corporation.

Petitioner’s Case

Petitioner’s case that if the petitioner is held to be ineligible by application of the said note in Clause 4(g) of the pre-qualification criteria, it would lead to a consequence that the petitioner cannot participate in such contracts of the Corporation although the petitioner is not blacklisted or debarred and yet is being prohibited to participate in such re-tender.

Discussion and Conclusion

Question that falls for determination in the present matter are:

(I) Whether the Municipal Corporation is entitled in law to impose a pre-qualification criterion as contained in Condition 4(g) (supra) to the effect that ‘the contractors whose work contract is terminated due to unsatisfactory services are not eligible to participate in the tender’?

(II) Whether imposing such impugned condition would amount to blacklisting of the petitioner?

In the present matter, while considering the facts and circumstances of the case, Bench discusses some vital points with respect to:

  • legal principles on the authority of the State and its instrumentalities to enter into contracts and
  • Principles of Judicial Review.

Power of Judicial Review is exercised to rein in unbridled executive functioning.

It is not the function of the Court to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administration. The duty of the court is to confine itself to the question of legality of the tender process on the touchstone of Article 14 of the Constitution.

It is not for the Court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. The only concern should be with the manner in which such decision have been taken.

On what grounds is the Judicial Review classified:

Firstly, Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it;

Secondly Irrationality, namely, Wednusbury unreasonableness, that is when a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. The decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it.;

Thirdly Procedural impropriety. The Court does not sit as an appellate authority over the tendering authority, but merely reviews the manner in which the decision was made.

Bench in view of the above-stated expressed that the terms of the invitation to tender cannot be open to judicial scrutiny as an invitation to tender is in the realm of contract.

Further, it was added that the Government must have freedom of contract. Principles laid above are enunciated in the Supreme Court decision of Tata Cellular v. Union of India, (1994) 6 SCC 651.

With respect to taking a review of the authorities and more particularly on the prescription and adherence of essential conditions has laid down principles of judicial review in the Supreme Court decision of BSN Joshi &. Sons Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548.

High Court elaborating more, added that the freedom to arrive at legitimate terms and conditions in inviting public offers cannot in any manner be taken away.

Cherished principles of free play in the joints and the liberty to choose a contractor, on terms and conditions fixed by the tendering authority in public interest, cannot be taken away.

Court would not have any expertise to sit in appeal over the tender conditions, the role of the Court is triggered only qua the decision-making process.

Moving forward, Bench examined whether Corporation acted either malafide or arbitrarily with material illegality in having a condition to restrict participation of a bidder whose contract is terminated due to unsatisfactory services?

 It was noted that the said condition was applicable to all the bidders and not just to the petitioner. The corporation made it clear with its condition that it did not desire a party whose work was unsatisfactory in the past to get onboard again, hence in Court’s opinion, the said condition became imperative, considering the nature of the contract.

Hence, Corporation’s condition was in no manner arbitrary and illegal. Therefore, Corporation was entitled in law to impose pre-qualification criteria as it did.

Second Question

 Imposing of impugned condition resulted in blacklisting the petitioner from participating in the tender in question?

Bench in light of the above question noted that a contractor cannot be blacklisted for having breached the terms and conditions of the contract unless a fair hearing was accorded to the party being blacklisted in due adherence to the principles of natural justice.

In Court’s Opinion, the present case is not the one wherein the petitioner can be said to be blacklisted by the Corporation.

In fact, the petitioner’s case is of an implied blacklisting by the Corporation by prescribing of a pre-bid criteria that a contractor whose work contract is terminated due to unsatisfactory performance is not eligible to participate in the tender.

Hence, present case is not of blacklisting.

It is also fallacious for the petitioner to label such condition as a condition of an implied blacklisting of the petitioner in future tenders to be issued by the Corporation. This is only a presumption of the petitioner. 

Concluding with the decision, High Court held that the petitions failed and were accordingly rejected. [BVG India Ltd. v. State of Maharashtra, 2021 SCC OnLine Bom 412, decided on 19-03-2021]


Advocates before the Court:

Mr. V. A. Thorat, Senior Advocate with Mr. Ashutosh M. Kulkarni and Mr. Sarthak S. Diwan for the Petitioner.

Mr. Sandeep Marne, for the Respondents.

Mr. P. P. Kakade, Government Pleader with Ms .R.A. Salukhe, AGP for State.

Hot Off The PressNews

Here’s the press statement released by the Ministry of External Affairs with regard to the comments by some foreign individuals and entities on the farmers’ protests:

“The Parliament of India, after a full debate and discussion, passed reformist legislation relating to the agricultural sector. These reforms give expanded market access and provided greater flexibility to farmers. They also pave the way for economically and ecologically sustainable farming.

A very small section of farmers in parts of India have some reservations about these reforms. Respecting the sentiments of the protestors, the Government of India has initiated a series of talks with their representatives. Union Ministers have been part of the negotiations, and eleven rounds of talks have already been held. The Government has even offered to keep the laws on hold, an offer iterated by no less than the Prime Minister of India.

Yet, it is unfortunate to see vested interest groups trying to enforce their agenda on these protests, and derail them. This was egregiously witnessed on January 26, India’s Republic Day. A cherished national commemoration, the anniversary of the inauguration of the Constitution of India, was besmirched, and violence and vandalism took place in the Indian capital.

Some of these vested interest groups have also tried to mobilise international support against India. Instigated by such fringe elements, Mahatma Gandhi statues have been desecrated in parts of the world. This is extremely disturbing for India and for civilised society everywhere.

Indian police forces have handled these protests with utmost restraint. It may be noted that hundreds of men and women serving in the police have been physically attacked, and in some cases stabbed and seriously wounded.

We would like to emphasise that these protests must be seen in the context of India’s democratic ethos and polity, and the efforts of the Government and the concerned farmer groups to resolve the impasse.

Before rushing to comment on such matters, we would urge that the facts be ascertained, and a proper understanding of the issues at hand be undertaken. The temptation of sensationalist social media hashtags and comments, especially when resorted to by celebrities and others, is neither accurate nor responsible. ”

#IndiaTogether

#IndiaAgainstPropaganda


Ministry of External Affairs

[Press Statement dt. 03-02-2021]

Cabinet DecisionsLegislation Updates

The Cabinet Committee on Economic Affairs considered and approved the proposal of Department for Promotion of Industry and Internal Trade for Central Sector Scheme for Industrial Development of Jammu & Kashmir. The scheme is approved with a total outlay of Rs. 28,400 crore upto the year 2037.

Government of India has formulated the New Industrial Development Scheme for Jammu & Kashmir (J&K IDS, 2021) as a Central Sector Scheme for the development of Industries in the UT of Jammu & Kashmir. The main purpose of the scheme is to generate employment which directly leads to the socio-economic development of the area. Considering the historic development of reorganization of Jammu & Kashmir with effect from 31.10.2019 into UT of Jammu & Kashmir under the J&K Reorganisation Act, 2019, the present scheme is being implemented with the vision that industry and service-led development of J&K needs to be given a fresh thrust with emphasis on job creation, skill development and sustainable development by attracting new investment and nurturing the existing ones.

The following incentives would be available under the scheme:

  1. Capital Investment Incentive at the rate of 30% in Zone A and 50% in Zone B on investment made in Plant & Machinery (in manufacturing) or construction of the building and other durable physical assets(in service sector) is available. Units with investment upto Rs. 50 crore will be eligible to avail this incentive. Maximum limit of incentive is Rs 5 crore and Rs 7.5 crore in Zone A & Zone B respectively
  2. Capital Interest subvention: At the annual rate of 6% for maximum 7 years on loan amount up to Rs. 500 crore for investment in plant and machinery (in manufacturing) or construction of building and all other durable physical assets(in service sector).
  3. GST Linked Incentive: 300% of the eligible value of actual investment made in plant and machinery (in manufacturing) or construction in building and all other durable physical assets(in service sector) for 10 years. The amount of incentive in a financial year will not exceed one-tenth of the total eligible amount of incentive.
  4. Working Capital Interest Incentive: All existing units at the annual rate of 5% for maximum 5 years. Maximum limit of incentive is Rs 1 crore.

Key Features of the Scheme:

  1. Scheme is made attractive for both smaller and larger units. Smaller units with an investment in plant & machinery upto Rs. 50 crore will get a capital incentive upto Rs. 7.5 crore and get capital interest subvention at the rate of  6% for maximum 7 years
  2. The scheme aims to take industrial development to the block level in UT of J&K, which is first time in any Industrial Incentive Scheme of the Government of India and attempts for a more sustained and balanced industrial growth in the entire UT
  3. Scheme has been simplified on the lines of ease of doing business by bringing one major incentive- GST Linked Incentive- that will ensure less compliance burden without compromising on transparency.
  4. Scheme envisages greater role of the UT of J&K in registration and implementation of the scheme while having proper checks and balances by having an independent audit agency before the claims are approved
  5. It is not a reimbursement or refund of GST but gross GST is used to measure eligibility for industrial incentive to offset the disadvantages that the UT of J&K face
  6. Earlier schemes though offered a plethora of incentives. However, the overall financial outflow was much lesser than the new scheme.

Major Impact and employment generation potential:

  1. Scheme is to bring about radical transformation in the existing industrial ecosystem of J&K with emphasis on job creation, skill development and sustainable development by attracting new investment and nurturing the existing ones, thereby enabling J&K to compete nationally with other leading industrially developed States/UTs of the country.
  2. It is anticipated that the proposed scheme is likely to attract unprecedented investment and give direct and indirect employment to about 4.5 lakh persons. Additionally, because of the working capital interest subvention the scheme is likely to give indirect support to about 35,000 persons.

Expenditure involved:

The financial outlay of the proposed scheme is Rs.28,400 crore for the scheme period 2020-21 to 2036-37. So far, the amount disbursed under various special package schemes is Rs. 1,123.84 crore.


Cabinet Committee on Economic Affairs (CCEA)

[Press Release dt. 07-01-2020]

[Source: PIB]