Tripura High Court
Case BriefsHigh Courts

Tripura High Court: In a public interest litigation concerning custodial torture on a 28-year-old woman in the police lockup, the division bench of Indrajit Mahanty, CJ. and S.G. Chattopadhyay, J. took suo motu notice of this grave and serious issue based on the newspaper report and observed that the victim was not formally arrested by police, but she was detained in police custody for a considerable period for the purpose of interrogation. Further, the medical reports clearly established that she was physically assaulted in custody, thus, directed the State to pay compensation to her.

The Court observed that from the facts and circumstances, merely based on a telephonic information received from the victim’s neighbour about her involvement in a theft case, police called her to the police station even without registering a case on the complaint received from the neighbour and without verifying the facts. Further, the medical reports clearly established that she was physically assaulted during interrogation in police custody.

The Court took note of the ruling in Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, wherein the Court held that “the prison authority and the police would have the responsibility to ensure that the person in custody is not deprived of his right to life, even if his liberty is circumscribed by the fact that the person is in confinement”.

It also took note of the ruling in Mehmood Nayyar Azam v. State of Chhattisgarh, (2012) 8 SCC 1, wherein it was held that “the police officers are under obligations to protect human rights of a person in custody and prevent all forms of atrocities to him/her”. It further referred to the decision in Ashwani Kumar v. Union of India, (2020) 13 SCC 585, wherein the Court reiterated that “a person detained in custody is entitled to live with human dignity and any form of torture would violate the right to life and is prohibited under Article 21 of the Constitution“.

Placing reliance on the decision in D.K. Basu v. State of W.B., (1997) 1 SCC 416, wherein the Court laid down the directions/guidelines with respect to rights of persons arrested/detained in police custody for interrogation; the Court has observed that the victim was not formally arrested by police but, undisputedly, she was detained in police custody for a considerable period for the purpose of interrogation. Thus, she was entitled to all the safeguards provided under the guidelines issued in the case of D.K. Basu (supra), but, apparently, she was deprived of those safeguards, and she was tortured and maltreated in police custody.

The Court viewed that the victim is entitled to monetary compensation for the wrongs done to her, thus, directed the State to pay a sum of Rs. 2,50,000/- to her.

[Court on its own motion v. State of Tripura, 2022 SCC OnLine Tri 635, decided on 21.09.2022]


Advocates who appeared in this case:

For Petitioner: Amicus Curiae A. Debbarma

For Respondent: Government Advocate D. Bhattacharya,

Advocate S. Saha

Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: In a petition filed by two convicts (‘petitioners’) challenging an order dated 09-07-2021 passed by Home Department, Government of Maharashtra directing their release after completion of 24 years of imprisonment including remission, as there are two different categories of crimes based on which remission is granted and their case seems to fall in a category having lesser year of imprisonment than 24 years as granted vide the impugned order, a Division Bench of Revati Mohite Dere and Madhav J Jamdar, JJ. held that even if it is assumed that the petitioners’ case falls under both the categories namely category no. 4 (c) and category no. 4 (d) of Guidelines dated 15-03-2010 (‘2010 Guidelines’), then also, the more beneficial category i.e., category no. 4 (c) will apply to the Petitioners’ case.

The petitioner claimed that the incident in question has taken place on account of a rivalry between two trade unions namely Mumbai Labour Union and Bhartiya Kamgar Sena. The deceased was a member of the Mumbai Labour Union, whereas, both, the Petitioners belonged to the Bhartiya Kamgar Sena. Petitioners i.e., Uday Dhaku Sutar and Ranjay Laxman Sawant (Accused 1 and 3) alongwith Prakash Yeragi (Accused 2), thus, were convicted for the offences punishable under Section 302 read with 34 of Penal Code, 1860 and were sentenced to suffer rigorous imprisonment for life.

Counsel for petitioners submitted that category 4 (c) of Guidelines dated 15th March, 2010 applies to the present case, whereas, the contention of the State is that category 4 (d) of said 2010 Guidelines is applicable.

Category 4 (c) covers Murder resulting from trade union activities and business rivalry mentioning 22 years as the period of imprisonment to be undergone including remission subject to a minimum of 14 years of actual imprisonment including set off period whereas Category 4 (d) covers murder committed by more than 1 person and mentions 22 years as the said period.

The Court noted that in the present case, murder has been committed by three persons, however, Guideline no. 4 (c) specifically contemplates murder resulting from trade union activities and does not further prescribe that the same will apply only if a murder has been committed by one person. What is relevant is murder should have been committed as a result of trade union activities and therefore, whether murder has been committed by more than one person/group of persons is totally irrelevant.

Placing reliance on State of Haryana v. Jagdish, (2010) 4 SCC 216, wherein the Court observed that “In case a liberal policy prevails on the date of consideration of the case of a “lifer” for premature release, he should be given benefit thereof.”

The Court remarked that it has been held by Supreme Court that in case of convicts the policy which was prevalent when the conviction takes place will apply and if any other liberal policy prevails on the date of consideration of case for premature release, then such policy will apply. The said principle of giving benefit to the convict of beneficial policy certainly applies to the two different policies/guidelines but the same will also apply to the categories in the same policy/guidelines, if case falls under both the categories.

Thus, the Court held that the present case is squarely governed by Guideline no. 4 (c) of Guidelines 2010, as the murder took place as a result of trade union activities and thereby quashed the impugned order.

[Uday Dhaku Sutar v. The State of Maharashtra, 2022 SCC OnLine Bom 2839, decided on 08-09-2022]


Advocates who appeared in this case:

Mr. Rupesh Jaiswal, Advocate, for the Petitioner in both the Writ Petitions;

Mr. J. P. Yagnik, APP, Advocate, for the Respondent-State in Writ Petition No. 4544 of 2021;

Ms. M. H. Mhatre, APP, Advocate, for the Respondent-State in Writ Petition No. 4545 of 2021.


*Arunima Bose, Editorial Assistant has put this report together.

Legislation UpdatesNotifications

   

On 10-08-2022, the Ministry of Railways has issued guidelines for implementation of Goods and Service Tax (‘GST') implications on recovery of liquidated damages which were given by the Central Board of Indirect Taxes and Customs (‘CBIC') vide circular dated 03-08-2022.

Key Points:

  1. Purpose of the CBIC circular: to implement correct GST practice and ensure uniformity in the manner of payments in cases where liquidated damages are levied on the vendors for non- performance of conditions of a contract. Through the circular, CBIC has clarified that payment of such damages is not the desired outcome of the contract, with regard to the taxability of liquidated damage.

  2. Liquidated damages do not constitute consideration received for supply by way of tolerating the breach or non- performance of contract and are not taxable.

  3. Where there is a delay in rendering of supply and the payment is received by the Railways in the form of liquidated damages against tolerating non- performance, it is not liable to GST.

  4. Where a vendor has to be paid and the liquidated damage has been levied, the amount payable will be paid amount of supply including GST less amount of liquidated damage without GST.

Vide CBIC circular dated 03-08-2022: The Ministry of Finance stated that GST will only be applicable in case of cancellation of AC First Class tickets.

Rule: Cancellation of charges of railway tickets for a class would attract GST at the same rate as applicable to the class.

Explanation: 5% GST for the AC First Class tickets and no GST will be imposed on other categories.

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: The Division Bench of Suneet Kumar and Syed Waiz Mian, JJ. held a Police Officer guilty of contempt for deliberately bypassing the mandate of the Supreme Court in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 and sentenced him to undergo simple imprisonment for 14 days.

An application under Section- 167 CrPC was moved before the Additional Chief Judicial Magistrate-III, by Investigating Officer (contemnor) seeking 14 days judicial remand of accused under Sections- 353, 504, 506 IPC which was rejected in compliance of the directions of the Supreme Court rendered in Arnesh Kumar. The mandate of Section 41-A CrPC was not complied by the Investigating Officer, further, he had to furnish reasons for arresting the accused. Magistrate, thereafter, made contempt reference against Investigating Officer, noting therein that the opposite party, therein, did not follow the direction of Supreme Court rendered in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, therefore, the Investigating Officer was liable to be punished under the Contempt of Court Act.

It was found that though the concerned offences were covered under the provisions for which maximum punishment was not more than 7 years, however, the mandate of Section 41A was not complied with by the Investigating Officer and no proper reason for the arrest of the accused was recorded in writing. The contemnor had claimed that there was an apprehension of communal riots and therefore, he had arrested the accused however there was no entry in the General Diary that there was any such apprehension of a communal flare-up.

The Court noted the fact that that the contemnor, being a member of disciplined Force, in exercise of his powers of arrest, had willfully and deliberately bypassed the mandate of the Supreme Court in Arnesh Kumar case, which is binding on all the authorities, including, the Magistrate, in view of Article 141 of the Constitution of India.

Refusing to take a sympathetic view on the quantum of punishment, Court awarded simple imprisonment for 14 days to the contemnor and further imposed a fine of Rs. 1000.

[In Re v. Chandan Kumar, Contempt Application (Criminal) No. – 5 of 2022, decided on 18-08-2022]


Advocates who appeared in this case :

Sudhir Mehrotra, Advocate, Counsel for the Applicant;

R.V. Pandey, Abhishek Mishra, Ashutosh Kumar Pandey, R.V. Pandey, Advocates, Counsel for the Opposite Party.


*Suchita Shukla, Editorial Assistant has reported this brief.

Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: In a case where an arrest was made wrongfully because the name of the father of the arrested person was similar to the name of the person named in the warrant, Suraj Govindaraj, J. directed Director General of Police to issue suitable Guidelines and/or Standard Operating Procedure as to what are the steps to be taken by the arresting officer before arresting a person including the verification of identity.

The company application was filed under Rules 6 and 9 of Companies (Court) Rules, 1959 for dropping the proceedings against N.G.N. Raju s/o Ningegowda on the grounds that he is not the Ex-Director of the Company in liquidation as on verification it was found that the applicant in the application is not Raju N.G.N., who is the Ex- Director of the Company in liquidation. The only reason why the applicant had been arrested is that the name of his father was similar to the name of the person named in the warrant.

The Court noted that even though the arrestee had disputed the applicability of the warrant to him, his identification was not cross-checked and verified resulting in an innocent person being arrested. Thus, by arresting a person whose arrest was not authorized there is a violation of the fundamental rights guaranteed under Article 21 of the Constitution of India.

The Court observed that if Guidelines or Standard Operating Procedure are already issued to cater to this situation, training in this regard to be provided to all arresting officers.

However, in case it is not issued, the Court directed the Director General of Police to issue suitable Guidelines and/or Standard Operating Procedure as to what are the steps to be taken by the arresting officer before arresting a person including the verification of identity. The same to be issued within 4 weeks from the date of receipt of the copy of this order.

The Court, considering that the arrestee was put to loss of liberty and reputation, directed the State to pay Rs 5 lakhs as compensation which is to be paid within 8 weeks from the date of order.

[Ningaraju v. Official Liquidator of India Holiday (Pvt) Ltd., Company Application No 96 of 2022, decided on 07-07-2022]


Advocates who appeared in this case :

K S Mahadevan, Advocate, for the Applicant;

K Ananda, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Shampa Sarkar, J. disposed of a writ petition which was filed by an ailing, retired bank employee alleging that the police authorities have failed to take steps although several complaints were filed alleging indiscriminate use of loudspeakers and microphones by some persons in the locality, in which he resides. Allegation was of noise pollution caused due to blaring music from loudspeakers which do not have sound limiters.

It was submitted that such public nuisance must be prevented by the police.

The Court directed the Inspector-in-Charge to ensure that in the area under his jurisdiction, use of microphones, loudspeakers, all musical equipment’s and instruments, either for private use or for entertainment of the public, as well as at public meetings, should be regulated by the orders passed by the Supreme Court, High Court and National Green Tribunal. The Court emphasized that the guidelines must be followed, and restrictions must be imposed and further, the notification issued by the Principal Secretary to the Govt. of West Bengal, Department of Environment on 29-12- 2009, should be complied with.

The Court further directed that the sound level must be within the permissible limit/range. Loudspeakers, microphones and loud music shall not be allowed between 10:00 p.m. to 6 a.m. and a vigil shall be maintained in the locality to prevent noise pollution in general.

[Tarunmoy Modak v. State of West Bengal, 2022 SCC OnLine Cal 1948, decided on 11-07-2022]


Advocates who appeared in this case :

Ms Riya Das, Advocate, for the Petitioner;

Mr Subhabrata Datta, Mr Banibrata Datta, Advocates, for the State-Respondents;

Mr Debasis Sur, Mr Himadri Shekhar Paul, Mr Anshuman Patra, Advocates, for the Respondent 15.


*Suchita Shukla, Editorial Assistant has reported this brief.

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]

NGT
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]

Foreign LegislationLegislation 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]

NGT
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

Central Information Commission
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]