COVID 19Hot Off The PressNews

Owing to the sudden upsurge of Covid-19 cases and as a precautionary measure to contain the spread of infection, the Supreme Court has issued the following additional guidelines for entrants to the Supreme Court premises:

  1. All the entrants to the Supreme Court premises, i.e. the Registry staff, staff of the coordinate agencies, Ld. Advocates and their staff etc., if showing any symptoms similar to those notified for Covid-19 infection shall subject themselves to Rapid/RT-PCR test;
  2. All Controlling Officers shall ensure that the staff in their control wears mask, maintains physical distancing and frequently sanitizes/washes hands and follows the prescribed Covid appropriate behaviour;
  3. Persons with notified symptoms like fever, cough, body-ache, loss of taste and smell, diarrhea etc. shall restrict themselves from coming to office/premises, isolate themselves immediately and seek medical advice;
  4. There shall not be any crowding or loitering in the campus and movement in common areas should be only for specific purposes and be completed within the minimum time;
  5. The lift should not be used by more than 3 persons at a time and shall be used only for going upwards; for coming downstairs, stairs should be used;
  6. The aforesaid measures, shall be in addition to the existing protocols already in place vide Circulars issued by the Registry from time to time, and such other steps as may have been taken with a view to contain spread of Covid-19 infection within the Supreme Court of India premises.

 

COVID 19Hot Off The PressNews

In view of the nationwide lockdown being extended till 17th May 2020 due to COVID-19 pandemic and taking into consideration the new guidelines issued by the Government of Sikkim vide Order No. 06/Home/2020 dated 2nd May 2020, it is hereby informed to all concerned that the High Court of Sikkim and the District Courts in the State of Sikkim will continue to function in terms of Notification No. 77/HCS dated 18th March 2020, Guidelines to the District Courts bearing reference No. 78/ HCS dated 18th March 2020 and Circular No. 33/Confdl/HCS dated 24th March 2020.

High Court of Sikkim issues the following instructions:

1. Standard Operating Procedure published vide reference No. 137/Comp/HCS dated 24th March 2020 will continue to operate for hearing of cases through video-conferencing. Helpline number ‘14636’ for queries relating to video-conferencing facilities have also been made operational.

2. Facilitation Centres for video-conferencing established in the High Court of Sikkim and all the District Courts will be made available to such litigants who do not have means or access to video-conferencing facilities. This facility can also be utilized by the learned Advocates, if required.

3. Filing Section of the High Court of Sikkim will remain open from 10 am to 1 pm. Similar arrangements shall be made by the jurisdictional District Judges in their respective Districts.

4. A roster duty arrangement from 4th May 2020 to 17th May 2020 will be made to ensure that urgent administrative works are attended to. Depending on the exigencies of service and situation, the Registrar General of the High Court and the jurisdictional District Judges at the District Courts will place the concerned staff on duty during the roster period.

However, it will be ensured that not more than one-third of the employees should be attending the Office at a time. The jurisdictional District Judges will also consider the new guidelines issued by the Government of Sikkim dated 2nd May 2020, while making the duty roster.

The above instructions will remain effective till 17th May 2020.


Sikkim High Court

[Circular dt. 02-05-2020]

COVID 19Legislation UpdatesNotifications

The guidelines laid down by Indian Council of Medical Research for COVID-19 testing in private laboratories in India is notified vide Clause (i) and (I) of sub-section 2 of Section 10 of DM Act, 2005, under the power delegated vide order F. No. 40-2/2020-DMI (A); dated 11th March, 2020 for strict follow up and compliance.

To read the Guidelines, please click on the link below:

GUIDELINES FOR COVID-19


Ministry of Health and Family Welfare

[Notification dt. 21-03-2020]

Legislation UpdatesRules & Regulations

Reference is invited to Regulation 17(iv) and clause 16 of Schedule I of IRDAI (Health Insurance) Regulations 2016.

In terms thereof, the following guidelines are issued:

A: NORMS ON PORTABILITY:

  1. Portability shall be allowed under all individual indemnity health insurance policies issued by General Insurers and Health Insurers including family floater policies.

B: NORMS ON MIGRATION:

2. In addition to the migration option to be provided to the policyholders as specified under Regulation 17(i) of IRDAI (Health Insurance) Regulations 2016:

(i) Every individual policyholder (including members under family floater policy) covered under an indemnity based individual health insurance policy shall be provided an option of migration at the explicit option exercised by the policyholder;

(ii) to an individual health insurance policy or a family floater policy, or;

(iii) to a group health insurance policy, if the member complies with the norms relating to the health insurance coverage under the concerned group insurance policy.

3. Every individual member, including family members covered under an indemnity based group health insurance policy shall be provided an option of migration at the time of exit from group or in the event of modification of the group policy (including the revision in the premium rates) or withdrawal of the group policy:

(a) to an individual health insurance policy or a family floater policy.

4. Migration shall be applicable to the extent of the sum insured under the previous policy and the cumulative bonus, if any, acquired from the previous policies.

5. Only the unexpired/residual waiting period not exceeding the applicable waiting period of the previous policy with respect to pre-existing diseases and time-bound exclusions shall be made applicable on migration under the new policy.

6. Migration may be subject to underwriting as follows:

(a) For individual policies, if the policyholder is continuously covered in the previous policy without any break for a period of four years or more, migration shall be allowed without subjecting the policyholder to any underwriting to the extent of the sum insured and the benefits available in the previous policy.

(b) Migration from group policies to individual policy will be subject to underwriting.

(c) Where underwriting is done, the insurance company shall convey its decision to the policyholder within 15 days as per Regulation 8(6) of IRDAI (Protection of Policyholders’ Interests) Regulations 2017.

7. A policyholder desirous of migrating his/her policy shall be allowed to apply to the insurance company to migrate the policy along with all members of the family, if any, at least 30 days before the premium renewal date of his/her existing policy. However, if the insurer is willing to consider even less than 30 days period, then the insurer may do so.

8. Insurer shall not levy any charges exclusively for migration.

9. . Insurers shall clearly draw the attention of the policyholder in the policy contract and the prospectus that:

(i) Migration is allowed as per these Guidelines as amended from time to time.

(ii) Policyholder should initiate action to approach the insurer to exercise migration option well before the renewal date to avoid any break in the policy coverage.

10. Individual members, including the family members covered under an indemnity based group health insurance policy shall have the right to migrate from such a group policy to an individual health insurance policy or a family floater policy, thereafter Portability shall be allowed as per Clause (1) above and in accordance to the norms specified under IRDAI (Health Insurance) Regulations, 2016.

11. These Guidelines are issued under the powers vested with Section 34 (1) of the Insurance Act, 1938 and will come in to force with immediate effect.

12. This has the approval of the competent authority.

*Link to the Document — https://www.irdai.gov.in/ADMINCMS/cms/whatsNew_Layout.aspx?page=PageNo3987&flag=1


Insurance Regulatory and Development Authority of India

[Document dt. 02-01-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Bench comprising of Justice Adarsh Kumar Goel (Chairperson) and Justice S.P. Wangdi (Judicial Member), Justice K. Ramakrishnan (Judicial Member) and Dr Nagin Nanda (Expert Member) considered the issue in respect to enforcement of environment norms against running of restaurants/hotels/banquets.

In respect to the above, tribunal considered the material vide order dated 02-11-2018 and recorded that violation of law on the subjects of waste management, discharge of effluents, illegal groundwater extraction, groundwater contamination, emission by illegally operating diesel generators, absence of statutory consents under the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and violation of conditions of consents where such consents had been granted by the restaurants/hotels/motels/banquets in Mahipalpur, Rajokri areas in Delhi.

Adding to the above issue, the tribunal also considered the issue of the absence of rainwater harvesting, groundwater recharge system, excess noise pollution, illegal parking and encroachments.

Authorities concerned were directed to take immediate steps by preparing an appropriate action plan. The action was to deal with the regulation of sewage disposal, extraction of groundwater, rainwater harvesting, air pollution on account of traffic congestion, use of DJ sets, management of solid waste and noise pollution.

Further, the tribunal considered the status report filed by the Delhi Government and found that the report did not meet the mandate of the order of the tribunal. Again on reviewing the matter in light of a new report, it was found to be deficient.

Tribunal noticed the challenge posed by unregulated social gatherings resulting in damage to the environment and public health.

Delhi Government filed a format of inspection with an action plan. Referring to the report filed to be deficient, it was stated that data was compiled, noise regulatory mechanism evolved, norms for waste disposal and installation of CCTV cameras and GPS laid down, sewage management and air pollution control measures plan.

The action plan covered the regulation of extraction of groundwater, rainwater harvesting, regulation of the size of gatherings and action against unauthorised establishments and recovery of environmental compensation.

Thus, tribunal on noting the above, stated apart from formalizing and enforcing the action plan reproduced above, MoEF&CC may evolve appropriate guidelines as well as mechanism for undertaking impact assessment either of individual establishments or of the area/cluster to ensure that activities beyond carrying capacity of the area are duly regulated to enforce the ‘Precautionary Principle’ as well as ‘Sustainable Development’.

Delhi Government may take steps as per its action plan and within a broad framework of pan India guidelines, the Delhi Government can have its own guidelines pertaining to suit the local requirements. [Westend Green Farms Society v. Union of India, 2019 SCC OnLine NGT 293, decided on 19-09-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.C. Dharmadhikari and G.S. Patel, JJ. dismissed a criminal writ petition challenging the constitutionality of the Guidelines for Registration of Sales Contract for Import of Poppy Seeds from Turkey, dated 25-06-2019, issued by the Central Bureau of Narcotics (“CBN”).

Poppy Seeds import into India is regulated by the CBN. The petitioners were registered importers. They have the necessary licenses. There is an annual cap or quota on poppy seed import from various points of origin. There is a cap on the quantity that may be imported for each foreign exporter country. Until recently, import permissions were by the sale of lots. On 25-06-2019, CBN issued the impugned Public Notice notifying the Guidelines. The petitioners decried the Guidelines as according to them the Guidelines are an unconstitutional restriction on their right to trade and carry on business.

The High Court disagreed. It was observed: “There is no fundamental right to be an importer. There is no fundamental right to import poppy seeds. There is no fundamental right to import anything without restrictions, or only on terms beneficial to a particular person. In mounting such a challenge, the burden on the petitioner is to show that the notification is manifestly arbitrary, i.e. that a patent arbitrariness exists on the face of it, without requiring any convoluted argumentation. It must, alternatively, be shown to be ex facie discriminatory, and not just discriminatory, but invidiously so. If a classification is challenged, it must be shown that it bears no nexus to the object of the impugned law. The petitioners are able to none of this.”

It was further observed: “The presently impugned Guidelines are but a step towards implementing a policy that has not only been in place in some form for many years previously, but is in furtherance of a policy to promote the larger public interest, then the narrow commercial interests of the Petitioners must yield.”

In such view of the matter, it was held that the writ petition was sans merit, and it was resultantly dismissed.[Chailbihari Trading (P) Ltd. v. Union of India, 2019 SCC OnLine Bom 1691, decided on 28-08-2019]

Case BriefsHigh Courts

Delhi High Court: R.K. Gauba, J. laid down guidelines for the criminal courts and mediation centers to be followed while dealing with the criminal cases that are to be or which have been referred for mediation.

The High Court was considering petitions under Section 482 CrPC concerning cases of serious nature, sought to be quashed on the premise of “settlement” of the dispute entered into between the parties. The question that arose was: whether the process of mediation, particularly one under the aegis of the court, should be permitted or encouraged to be availed of for bringing about such settlement as may possibly not to be taken by the court to be just or sufficient reason for such intervention, this having regard to the nature of the crime involved?

There were five criminal cases before the Court in the present petitions. Four of them related to credit card frauds and the last one was a case of obscene calls and IT offences. Denouncing the manner in which these cases were dealt with by the lower courts and mediation authorities in registering settlements between the parties in such serious offences, the Court went on to lay guidelines for the criminal courts and mediation authorities to be followed in such cases.

The Guidelines

(i) The court while considering reference of the parties to a criminal case to the mediation must before even ascertaining as to whether elements of settlement exist first examine, by preliminary scrutiny, the permissibility in law for the criminal action to be brought to an end either because the offence involved is compoundable or because the High Court would have no inhibition to quash it, bearing in mind the broad principles that govern the exercise of jurisdiction under Section 482 CrPC.

(ii) The mediator (before commencing mediation) must undertake preliminary scrutiny of the facts of the criminal case and satisfy himself as to the possibility of assisting the parties to such a settlement as would be acceptable to the court, bearing in mind the law governing the compounding of the offences or exercise of power of the High Court under Section 482 CrPC. For this, an institutional mechanism has to be created in the mediation centers so that there is consistency and uniformity in approach. The scrutiny in above nature would also need to be undertaken, as the mediation process continues, should any such criminal case, as mentioned above, be brought on the table by the parties (for being included in the settlement), as takes it beyond the case initially referred.

(iii) The system of vetting, at the conclusion of the mediation process, needs to be institutionalised so that before a settlement vis-a-vis a criminal case is formally executed by the parties, satisfaction is reached that the criminal charge involved is one which is either compoundable or one respecting which there would  be no inhibition felt by the High Court in exercise of its inherent power under Section 482 CrPC, bearing in mind the relevant jurisprudence.

The Court added that the above guidelines will apply mutatis mutandis to other ADR methods. It was expected that the criminal courts and mediation centers shall abide by the above guidelines.

Present petitions

As far as the present petitions were concerned, the Court was of the view of that the four cases of credit card frauds have a serious adverse impact on the financial and economic well-being of the State and its banking institutions. The gravity and seriousness of the offences, the conduct of the accused persons and the impact on society were good reasons to reject the settlement as ill-conceived and unworthy. The fifth case involving pornographic and obscene call offences under IT Act similarly was a case involving mental depravity and could not be quashed on the basis of a settlement. Accordingly, all five petitions filed before the Court were dismissed.

Other concerns

— The criminal court is not a room with a revolving door where the accused can enter into or exit from at his own whims or fancies. The Judge presiding over a criminal trial must keep everyone in discipline, particularly in the matter of appearance in time.

— There can be a denial of the ground reality that in the criminal law process of this country, protracted trials have become the rule and expedition is an exception. There seems to be no system, check or discipline, or accountability, on the part of the defence counsel.

— This Court has been laying emphasis from time to time on timely conclusion of old cases in a time bound manner. But, treating serious fraud cases as one meant for recovery through the process of mediation is no answer to the challenge of huge pendency of old cases in the criminal jurisdiction.

— There is a need for the creation of additional criminal courts so that each such court carries only such optimum number of cases as can be expeditiously moved through the procedure to a conclusion. But, such endeavour would depend on infrastructural support from other agencies of the State.

Noting such concerns, the Court requested the Chief Justice have the above issues examined on the administrative side for such directions to be issued and such steps to be undertaken as may be deemed proper.

Instructions were issued in regard to the credit card fraud cases. The Chief Metropolitan Magistrate was directed to take up the matter on a day-to-day basis and reach a conclusion preferably within 6 months of the receipt of the present order. The progress of the case was directed to be periodically monitored by the Sessions Judge. [Yashpal Chaudharani v. State (NCT of Delhi, 2019 SCC OnLine Del 8179, dated 22-04-2019]

Amendments to existing lawsLegislation Updates

S.O. 955(E)—The Hon’ble NGT, Principal Bench, New Delhi by its Order dated 13.08.2018 in Original Application No. 489/2014 has directed the Ministry to regulate the wood-based charcoal industries also by amending the Wood-Based Industries (Establishment and Regulation) Guidelines, 2016. In compliance with the orders of the Hon’ble NGT, the Guidelines are amended as under in order to regulate wood-based charcoal industries also:

1. The entry under Para 2(i) (h) of the Guidelines is substituted with the following: ‘Wood-Based Industry’ means any industry which processes wood as its raw material (Saw mills/veneer/plywood or any other form such as sandal, Katha wood, charcoal etc.).

2. The following entry is inserted after Para 2(i) (h):

(i) ‘Charcoal’ means a form of carbon derived from incomplete combustion of wood derived from a tree.

3. The following entry is inserted after Para 8 (iii):-

(iv) All wood-based industries will follow all environmental and other regulations prescribed by the State Pollution Control Board, Central Pollution Control Board and Ministry of Environment, Forest and Climate Change as applicable to these industries under the Environment (Protection) Act, 1986 and other Central and State Acts.

[Dated: 22-02-2019]

Ministry of Environment, Forest and Climate Change

Case BriefsSupreme Court

Supreme Court: A Bench comprising of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. decided in favour of live streaming of cases of constitutional or national importance before a Constitution Bench of the Supreme Court. Justice Khanwilkar delivered the leading judgment for the CJI and himself. While Justice Chandrachud rendered a separate concurring opinion.

The petitioners, claiming to be public-spirited persons, sought a declaration that Supreme Court case proceedings of constitutional importance having an impact on the public at large or a large number of people should be live streamed in a manner that is easily accessible for public viewing. Further direction was sought to frame guidelines to enable the determination of exceptional cases that qualify for live streaming. The Court requested the Attorney General for India, K.K. Venugopal to collate the suggestions given by him as well as the petitioners and submit a comprehensive note for evolving a framework, in the event the relief claimed in the writ petition(s) was to be granted.

The Supreme Court made a reference to Section 327 CrPC and 153-B CPC to which can be traced provisions regarding open court hearing. In Court’s considered opinion use of technology to relay the live court proceedings could be a way forward. By providing virtual access of live court proceedings to one and all, it would effectuate the right of access to justice or right to open justice and public trial, right to know the developments of law and include the right of justice at the doorstep of the litigants. However, it was also opined that while doing so, regard must be had to the fact that just as the dignity and majesty of the Court is inviolable, the issues regarding privacy rights of the litigants or witnesses, as also other exceptional categories of cases of which live streaming of proceedings may not be desirable as it may affect the cause of administration of justice itself, are matters which need to be identified and a proper regulatory framework must be provided in that regard by formulating rules in exercise of the power under Article 145 of the Constitution.

While generally agreeing with the Comprehensive guidelines for live streaming of Court proceedings in the Supreme Court suggested by the Attorney General K.K. Venugopal as stated below:–

Recommendations:
Supreme Court may lay down the following guidelines to administer live streaming of Court proceedings:

1. At the outset, it is submitted that Live Streaming of Court proceedings should be introduced as a pilot project in Court No.1 and only in Constitution bench references. The success of this project will determine whether or not live streaming should be introduced in all courts in the Supreme Court and in Courts pan India.

2. To ensure that all persons including litigants, journalists, interns, visitors, and lawyers are able to view the live streaming of the proceedings, a media room should be designated in the premises of the court with necessary infrastructural facilities. This will also ensure that courts are decongested. Provisions may also be made available for the benefit of differently abled persons.

3. Apart from live streaming, the Supreme Court may, in the future, also provide for transcribing facilities and archive the audio-visual record of the proceedings to make the webcast accessible to litigants and other interested persons who are unable to witness the hearings on account of constraints of time, resources, or the ability to travel long distances to attend hearing on every single date. Such webcasts will also allow students of law to supplement their academic knowledge and gain practical insights into cases of national importance.

4. It is pertinent that this Hon’ble Court lay down guidelines to safeguard and limit the broadcasting and recording of its proceedings to ensure better access to justice. Some of the recommendations are:

a. The Court must have the power to limit, temporarily suspend or disallow filming or broadcasting, if, in its opinion, such measures are likely to interfere with the rights of the parties to a fair trial or otherwise interfere with the proper administration of justice.

b. The Court may law down guidelines/criterion to determine what cases constitute proceedings of constitutional and national importance to seek permission for broadcasting.

c. As held famously in the case of Scott v. Scott, (1913) AC 417, “While the broad principle is that the Courts must administer justice in public, the chief object of Courts of justice must be to secure that justice is done”, broadcasting must not be permitted in the cases involving:

i. Matrimonial matters,
ii. Matters involving interests of juveniles or the protection and safety of the private life of the young offenders,
iii. Matters of National security,
iv. To ensure that victims, witnesses or defendants can depose truthfully and without any fear. Special protection must be given to vulnerable or intimidated witnesses. It may provide for face distortion of the witness if she/he consents to the broadcast
anonymously,
v. To protect confidential or sensitive information, including all matters relating to sexual assault and rape,
vi. Matters where publicity would be antithetical to the administration of justice.
vii. Cases which may provoke sentiments and arouse passion and provoke enmity among communities.

d. Use of the footage would be restricted for the purpose of news, current affairs and educational purposes and should not be used for commercial, promotion, light entertainment, satirical programs or advertising.

e. Without prior written authorization of the Supreme Court of India, live streaming or the webcast of the proceedings from the Supreme Court should not be reproduced, transmitted, uploaded, posted, modified, published or republished to the public.

f. Any unauthorized usage of the live streaming and/or webcasts will be punishable as an offence under the Indian Copyright Act, 1957 and the Information Technology Act, 2000 and any other provisions of the law in force. The law of contempt should apply to such proceedings. Prohibitions, fines, and penalties may be provided for.

g. The Courts may also lay down rules of coverage to provide for the manner in which the filming may be done and the equipment that will be allowed in court.

h. Case management techniques should be introduced to ensure that matters are decided in a speedy manner and lawyers abide by time limits fixed prior to the hearing. A skeleton of arguments/Written submissions should be prepared and submitted to the Court by the lawyers prior to their arguments.

i. The Court of Appeal in England, in November 2013, introduced streaming its proceedings on YouTube. The telecast is deferred by 70 seconds with the Judge having the power to mute something said in the proceedings if he feels they are inappropriate for public consumption.

j. Like the Court of Appeal in England, the Supreme Court should also lay guidelines for having only two camera angles, one facing the judge and the other- the lawyer. The camera should not focus on the papers of the lawyer; the Court was of the opinion that:

  • Project of live streaming must be implemented in a progressive, structured and phased manner, with certain safeguards.
  • The project will have to be executed in phases. Before the commencement of the first phase, formal rules will have to be framed by the Supreme Court to incorporate the recommendations.
  • Only cases of constitutional or national importance being argued for final hearing before a Constitution Bench with advance written permission of the Court concerned be live streamed as pilot project.
  • Prior consent of all parties to be insisted and in case of objections Court to decide and that decision shall be final.
  • Court would retain the power to revoke permission at any stage of the proceedings.
  • There must be a reasonable time-delay between live court proceedings and the broadcast to edit any information which ought not to be shown.
  • Appointment of a technical committee comprising of the Registrar (IT), video-recording experts, etc. to develop technical guidelines for recording and broadcasting.
  • The focus of cameras to be either towards Judges/Bench or the arguing advocates. No broadcast of any interaction between the client and advocate.
  • Court to retain copyright over the broadcast material.
  • Reproduction, publication, etc. of the original broadcast material in any form shall be prohibited.

The Court concluded by reiterating that the Supreme Court Rules, 2013 will have to be suitably amended to provide for the regulatory framework as per the contours delineated hereinabove.

Dr D.Y. Chandrachud, J. delivered a separate concurring opinion wherein he formulated Model guidelines for the broadcasting of the proceedings and other judicial events of the Supreme Court of India

A. Kind of matters to be live-streamed

1. Proceedings involving the hearing of cases before the Supreme Court shall be live-streamed in the manner provided below:

a) Cases falling under the following categories shall be excluded as a class from live-streaming:

(i) Matrimonial matters, including transfer petitions;
(ii) Cases involving sensitive issues as in the nature of sexual assault; and
(iii) Matters where children and juveniles are involved, like POCSO cases.
b) Apart from the general prohibition on streaming cases falling in the above categories, the presiding judge of each courtroom shall have the discretion to disallow live-streaming for specific cases where, in his/her opinion, publicity would prejudice the interests of justice. This may be intimated by the presiding judge in advance or live-streaming may be suspended as and when a matter is being heard; and
c) Where objections are filed by a litigant against live-streaming of a case on grounds of privacy, confidentiality, or the administration of justice, the final authority on live-streaming the case shall lie with the
presiding judge.

2. In addition to live-streaming of courtroom proceedings, the following events may also be live-streamed in the future subject to the provisions of the Rules:
(a) Oath ceremonies of the Judges of the Supreme Court and speeches delivered by retiring judges and other judges in the farewell ceremony of the respective Supreme Court Judges; and
(b) Addresses delivered in judicial conferences or Full Court References or any event organized by the Supreme Court or by advocate associations affiliated to the Supreme Court or any other events.

B. Manner of live-streaming

1. Live-streamed and archived videos of the broadcast shall be made available on the official website of the Supreme Court. The recorded broadcast of each day shall be made available as archives on the official website of the Supreme Court by the end of the day;

2. Live-streaming shall commence as soon as the judges arrive in the courtroom and shall continue till the Bench rises;

3. The presiding judge of the courtroom shall be provided with an appropriate device for directing the technical team to stop live-streaming if the Bench deems it necessary in the interest of administration of justice;

4. Live-streaming of the proceedings should be carried out with a delay of two minutes;

5. Proceedings shall only be live-streamed during working hours of the court;

6. Courtroom proceedings will continue to be live-streamed unless the presiding judge orders the recording to be paused or suspended;

7. To give full effect to the process of live-streaming, advocates addressing the Bench, and judges addressing the Bar, must use microphones, while addressing the Court;

8. Recording of courtroom proceedings shall be done by the Registry with the technical support of National Informatics Centre or any other public/private agency authorized by the Supreme Court or the Ministry of Information and Technology; and

9. The portions of proceedings which are not broadcast online, on the direction
of the presiding judge of the Bench shall not be made part of the official records and shall be placed separately as ‘confidential records’.

C. Technical specifications for live-streaming

1. Live-streaming shall be conducted by the Supreme Court with its own camera-persons or by an authorized agency. No person who is not authorized by the Supreme Court will be permitted to record any proceeding;

2. Cameras should be focused only on the judges and advocates pleading before the Bench in the matter being live-streamed;

3. Cameras shall not film the media and visitor’s galleries;

4. Cameras may zoom in on the Bench when any judge is dictating an order or judgment or making any observation or enquiry to the advocate; and

5. The following communications shall not be filmed:
a) Discussions among the judges on the Bench;

b) Any judge giving instructions to the administrative staff of the courtroom;

c) Any staff member communicating any message to the judge or circulating any document to the judge;

d) Notes taken down by the judge during the court proceedings; and

e) Notes made by an advocate either on paper or in electronic form for assistance while making submissions to the court.

D. Archiving

1. The audio-visual recording of each day’s proceedings shall be preserved in the Audio-Visual Unit of the Supreme Court Registry;

2. Archives of all broadcasts of courtroom proceedings which have been live-streamed should be made available on the website of the Supreme Court; and

3. Hard copies of the video footage of past proceedings may be made available according to terms and conditions to be notified by the Supreme Court Registry. The video footage shall be made available for the sole purpose of fair and accurate reporting of the judicial proceedings of the Supreme Court.

E. Broadcast Room
1. The Registry will make one or more rooms or a hall available within the premises of the Supreme Court for the purpose of broadcasting the proceedings. Multiple screens along with the other necessary infrastructural facilities shall be installed, for enabling litigants, journalists, interns, visitors and lawyers to view the courtroom proceedings in the broadcast room(s). Special arrangements will be made for the differently abled.

F. Miscellaneous

1. The Supreme Court shall hold exclusive copyright over videos streamed online and archived with the Registry; and

2. Re-use, capture, re-editing or redistribution, or creating derivative works or compiling of the broadcast or video footage, in any form, shall not be permitted except as may be notified in the terms and conditions of use and without the written permission of the Registry.

Simultaneously, he clarified that the model guidelines were of a suggested nature and would not detract from the authority of the Court to frame Rules under Article 145(1) in order to determine all the modalities.

As a result, the Supreme Court allowed the writ petitions with the aforementioned observations and hoped that the relevant rules will be formulated expeditiously and the first phase project executed in right earnest by all concerned. [Swapnil Tripathi v. Supreme Court of India,2018 SCC OnLine SC 1667, decided on 26-09-2018]

Case Briefs

Supreme Court: The Bench comprising of Ranjan Gogoi, R. Banumathi and Navin Sinha, JJ., dismissed a petition seeking guidelines on how the procedure for caesarean deliveries has to be conducted in hospitals.

Petitioner had alleged that due to lack of policy several private hospitals and maternity homes often conduct unnecessary C-section deliveries in order to make money.

The Supreme Court on perusal of the petition under Article 32 of the Constitution of India stated it to be an attempt to abuse the process of Court. Further, the petitioner was imposed with a token cost of Rs 25,000 in the Supreme Court Bar Association.  Therefore, the petition was further dismissed. [Reepak Kansal v. Union of India, WP (C) No. 826 of 2018, order dated 03-08-2018]

Hot Off The PressNews

National Green Tribunal (NGT): The Bench headed by the NGT Chairperson AK Goel J., while addressing a matter related to school’s violating the air and noise pollution norms directed the Ministry of Environment and Forests (MoEF) to issue guidelines in regard to the stated issue.

The Bench stated that “Secretary MoEF should have an interaction by way of video-conferencing or otherwise with the education departments of all the states in association with the pollution control boards or the Central Pollution Control Board to issue appropriate guidelines to take care of the violation of environment norms by different educational institutions in the country”.

Hence, NGT directed MoEF to file a compliance report by email at filing.ngt@gmail.com within a period of 8 weeks.

[Source: PTI]

Hot Off The PressNews

The University Grants Commission (UGC) has framed guidelines on Safety of Students on and off Campuses of Higher Educational Institutions (HEIs). As per UGC guidelines, HEIs should mandatorily put in place a broad-based “Students Counseling System” for the effective management of problems and challenges faced by students. It is a unique, interactive and target-oriented system, involving students, teachers and parents, resolved to address common students concerns such as anxiety, stress, fear of change and failure to homesickness and a slew of academic worries. HEIs should also make self defense for women mandatory component of extra-curricular activities. Further, it is incumbent upon HEIs to institute a mechanism to address issues/concerns of all girls and women in HEIs.

All universities may make or amend their ordinances and other relevant statutory provisions accordingly to ensure that the directions contained in the guidelines are implemented in the best interests of students.

The aforesaid guidelines may be viewed here.

Ministry of Human Resource Development

Cabinet DecisionsLegislation Updates

The Union Cabinet has approved the revised guidelines of the Department of Public Enterprises (DPE) on time bound closure of sick/loss making Central Public Sector Enterprises (CPSEs) and disposal of movable and immovable assets. The revised guidelines would reduce delays in implementation of closure plans of sick/loss making CPSEs.  These guidelines will replace the guidelines issued by DPE in September, 2016.

These guidelines provide a broad framework for expeditious completion of various processes and procedures for closure of CPSEs by laying down important milestones in the closure process along with timelines, outlining the responsibilities of the concerned Ministries/ Departments/ CPSE, etc., in the process. The guidelines provide for advance preparatory action to be taken by administrative Ministry/ Department and CPSEs, preparation of closure proposal, settlement of statutory and other liabilities of the CPSE under closure and modalities for disposal of movable and immovable assets of such CPSEs in a time bound manner.

The guidelines give first priority for utilization of land of CPSEs under closure for Affordable Housing as per the relevant guidelines of Ministry of Housing and Urban Affairs (MoHUA). Since there are employees working in these CPSEs, Government decided that closure should not cause hardship to them and has now laid down a uniform policy to give workers VRS at 2007 notional pay scale irrespective of the pay scale in which they are working.

These guidelines shall apply to all sick/ loss making CPSEs, where –

1. Approval/ in principle approval for closure has been obtained by administrative Ministry/ Department from the CCEA/ Cabinet; or

2. The process for obtaining the approval of the competent authority is underway after the administrative Ministry/ Department has decided for the closure of the CPSE.

By assigning priority to Affordable Housing it would make available land parcels of sick/loss making CPSEs under closure for the Government flagship programme of Affordable Housing being managed by Ministry of Housing and Urban Affairs.

Cabinet

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission: An appeal from the response of CPIO, Ministry of Human Resource and Development, was dismissed by Bimal Julka, Information Commissioner.

The appellant, in his RTI application, sought information on eight points regarding the guidelines issued by the Government in regards to education fees levied by private schools, re-admission to private schools, etc. However, no response was provided by the CPIO. Dissatisfied by the same, the appellant filed the instant appeal. The respondents claimed that a response had been provided to the appellant in each point mentioned in his application. They also submitted a receipt of written submission. A copy of reply was also presented.

The Commission perused Sections 2(f) and 2(j) of the RTI Act 2005 and also referred to the Supreme Court decision in CBSE v. Aditya Bandopadhyay, (2011) 8 SCC 497, wherein it was held that the reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in Section 2(f) only refers to such material as is available in the records of public authority. Further, under the Act, an applicant is entitled to get a copy of opinion, advice, circular, etc. but he cannot ask as to why such material had been passed. Since the appellant was not present to contest the submissions of the respondents, the Commission accepted the submissions made by the respondents and dismissed the appeal. [Javed Ahmed v. CPIO, Ministry of Human Resource and Development, 2018 SCC OnLine CIC 312, dated 10-5-2018]

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of Anthony Dominic, CJ and Dama Seshadri Naidu, J. decided a public interest litigation, wherein it declined to issue guidelines for objective assessment in a scientific manner for the court or other authorities concerned to decide issues relating to custody of children.

The petitioners were estranged husbands involved in cases relating to custody of children, pending before the Family Court with their wives as opposite parties. Grievance of the petitioners was that they often faced adverse orders in matters of visitation rights, interim custody of wards, guardianship and other such issues, before the Family Court. They submitted that the orders passed by the Family Court lacked objective assessment based on scientific criteria and were often passed purely on the subjective satisfaction of the Judges; the ‘interest of the child’ quite often became a casualty. Learned counsel for the petitioners impressed upon the need of laying down scientific guidelines by the High Court for an objective assessment of the welfare of the child which should be prime consideration in disputes of such nature.

The High Court, after duly considering the submissions made on behalf of the parties, held the law to be well settled that in a case where custody of a minor child becomes the subject matter of the dispute between the warring parents, the Court is required to decide the issue keeping the welfare of the child in the forefront. Further, in disputes of such a nature, the Court has to appreciate the issue as a whole, and not by going entirely on the legal rights of the parties. The exercise of such a discretionary power by a Court could not be curtailed by issuing any guidelines, as was sought by the petitioners. On the other hand, if at all the legislature is satisfied that this exercise of power has to be regulated by any statutory yardstick, it is for the legislature to step in and enact any appropriate law as it may be competent to do so.

In such circumstances, the Court held that no such relief as prayed for by the petitioners could be granted and therefore, the petition was dismissed. [Sachin Narayanan Pillai v. State of Kerala,2018 SCC OnLine Ker 1460, decided on 21.3.2018]

Business NewsNews

1. SEBI (Real Estate Investment Trusts) Regulations, 2014 (“REIT Regulations”) and SEBI (Infrastructure Investment Trusts) Regulations, 2014 (“InvIT Regulations”) were amended vide notifications dated December 15, 2017. The said amendments, inter-alia, clarified that REITs and InvITs can issue debt securities.

2. For issuance of debt securities, REITs/InvITs shall follow provisions of SEBI (Issue and Listing of Debt Securities Regulations), 2008 (“ILDS Regulations”) in the following manner:

2.1. Regulation 4(5) and Regulation 16(1) of SEBI ILDS Regulations, 2008 shall not be applicable for issuance of debt securities by REITs/InvITs.

2.2. The compliances required to be made with respect to Companies Act, 2013 or any filing to be made to Registrar of Companies in terms of the ILDS Regulations, shall not apply to REITs/InvITs for issuance of debt securities unless specifically provided in this circular.

2.3. All other provisions of ILDS Regulations shall apply to REITs/InvITs subject to there being no conflict with REIT Regulations and/or InvIT Regulations or circulars issued thereunder. In case of conflict, provisions of REIT Regulations and/or InvIT Regulations or circulars issued thereunder shall prevail over ILDS Regulations.

3. For the issuance of debt securities REITs/InvITs shall appoint one or more debenture trustee registered with SEBI under Securities and Exchange Board of India (Debenture Trustees) Regulations, 1993:

Provided that a trustee to the REIT/InvIT shall not be eligible to be appointed as debenture trustee to such issue of debt securities.

4. Any secured debt securities issued by REITs/InvITs shall be secured by the creation of a charge on the assets of the REIT/InvIT or holdco or SPV, having a value which is sufficient for the repayment of the amount of such debt securities and interest thereon.

5. In addition to the disclosures and compliances prescribed under Circular CIR/IMD/DF/146/2016 dated December 29, 2016 and Circular CIR/IMD/DF/127/2016 dated November 29, 2016, as applicable, REITs/InvITs which have issued debt securities shall be required to comply with following continuous disclosure requirements:

5.1 . Regulations 50, 51, 54, 55, 56, 57, 58, 59 and 60 of Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 (“LODR Regulations”) and any other provisions of the aforesaid regulations as may be applicable to REITs/InvITs.

5.2. In addition to Financial disclosures made by REITs and InvITs in terms of circular dated December 29, 2016 and November 29, 2016 the following requirements shall apply:

5.2.1. Additional line items that shall be disclosed by REITs/InvITs which have issued/listed their debt securities are as follows:

(a) Asset cover available;

(b) debt-equity ratio;

(c) debt service coverage ratio;

(d) interest service coverage ratio;

(e) net worth;

5.2.2. Modified opinion(s) in audit reports having a bearing on the interest payment or redemption or principal repayment capacity of the REITs/InvITs shall be appropriately and adequately addressed by the board of the manager while publishing the accounts for the said period.

5.2.3. REITs/InvITs shall submit to the stock exchange on a half yearly basis along with the half yearly financial results, a statement indicating material deviations, if any, in the use of proceeds of issue of debt securities from the objects stated in the offer document.

6. With reference to ILDS Regulations and LODR Regulation and circulars issued thereunder, the reference to the following terms made therein, should, for the purpose of this circular, be construed as follows, unless otherwise required:

Reference to To be construed as
Articles of Association! Memorandum of Association Trust Deed
Board of directors Board of Director!Governing Body of the Manager
Directors of the company Directors of the manager
Shares Units
Shareholder Unit holder
Shareholding pattern Unit holding pattern
Share capital Unit capital

7. This Circular is issued in exercise of powers conferred under Section 11(1) of Securities and Exchange Board of India Act, 1992 read with Regulation 33 of REIT Regulations and Regulation 33 of InvIT Regulations.

8. This Circular is available on SEBI website at sebi.gov.in under the categories “Legal Framework” and under the drop down “Circulars”.

[SEBI/HO/DDHS/DDHS/CIR/P/2018/71]

Case BriefsSupreme Court

Supreme Court: With the intent to prevent the arbitrary exercise of judicial discretion under Order 37 CPC while refusing the leave to defend or granting conditional or unconditional leave to defend, the bench of Kurian Joseph and R. F. Nariman, JJ laid down broad guidelines to be kept into mind by the trial judge. The Guidelines are as follows:

  • If the defendant satisfies the Court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit;
  • If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend;
  • Even if the defendant raises triable issues, if a doubt is left with the trial judge about the defendant’s good faith, or the genuineness of the triable issues, the trial judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security;
  • If the Defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.
  • If the Defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith
  • If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court.

Stating that Order 37 CPC has suffered a change in 1976, and that change has made a difference in the law laid down, the Court said that the position in law now is that the trial Judge is vested with a discretion which has to result in justice being done on the facts of each case. The Court explained that at one end of the spectrum is unconditional leave to defend, granted in all cases which present a substantial defence. At the other end of the spectrum are frivolous or vexatious defences, leading to refusal of leave to defend. In between these two extremes are various kinds of defences raised which yield conditional leave to defend in most cases. It is these defences that have to be guided by broad principles which are ultimately applied by the trial Judge so that justice is done on the facts of each given case. [IDBI Trusteeship Services Ltd v. Hubtown Ltd, 2016 SCC OnLine SC 1274, decided on 15.11.2016]