Bombay High Court
Case BriefsHigh Courts

   

Bombay High Court: The issue before the Court in the instant matter was that between a secured creditor (defined in SARFAESI Act and Recovery of Debt and Bankruptcy Act), and the revenue departments of the Central/State Governments, who can legally claim priority for liquidation of their respective dues qua the borrower/dealer upon enforcement of the ‘security interest' and consequent sale of the ‘secured asset'. The 3 Judge Bench of Dipankar Datta, CJ., and M.S. Karnik and N.J. Jamadar, JJ., while deliberating upon the question went on to frame and answer seven substantial questions of law on the issue.

Background: Prior to 1993, for effecting recovery of debts, the lenders were required to institute suits regulated by the provisions of the CPC. However, the lengthy processes and other problems led to ‘retardation of economic growth'. It is at this point that the Parliament enacted the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, which was instrumental in establishing the Debt Recovery Tribunals in various States for expeditious adjudication and recovery of debts due to the lenders and other connected matters.

In due course of time, even the creation of DRTs fell short of achieving the desired results and after many deliberations, the SARFAESI Act came into being, which aimed at evolving means for faster recovery of dues without judicial intervention. The afore-stated legislations were deliberated by the Supreme Court in Central Bank of India v. State of Kerala, (2009) 4 SCC 94, wherein it was held that these legislations do not create first charge in favour of banks, financial institutions and other secured creditors over the first charge created under State legislations because Parliament did not intend to give priority to the dues of private creditors over sovereign debt of the State.

Later in 2016, via an amendment, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 was rechristened as Recovery of Debt and Bankruptcy Act and Section 31-B- ‘Priority to the Secured Creditors' was incorporated. Even SARFAESI underwent an amendment in 2016 and Chapter IV-A- ‘Registration by Secured Creditors and Other Creditors', was added. These amendments resulted in another slew of decisions by several High Courts wherein it was observed that the amendments have tilted the scales in favour of the secured creditors and being a pre-2016 Amendment decision, the Central Bank of India case is no longer relevant.

Given the broad questions of law involved in the issue, the Division Bench of this Court comprising of Dipankar Datta, CJ., and M.S. Karnik, J., referred the matter to a larger Bench for consideration, therefore leading to the present writ petition

Primary Contentions: The secured creditors submitted that the priority created by Section 31-B of RDDB Act is not restricted to enforcement under this Act itself as the provision recognizes priority in a general manner. It was further submitted that the SARFAESI Act also recognises priority. It was contended that in view of amendments brought in both the Central enactments, they are entitled to assert priority over claims of the State sales tax department under the Maharashtra Value Added Tax Act.

The creditors also submitted that there is no dispute that the Central Acts and the State legislations operate in different fields and there is no apparent repugnancy; on the contrary, the State legislations are clear to this extent that the same would yield to Central Acts creating first charge.

Per contra, the State Government and its departments argued that Section 26-E as inserted in the SARFAESI Act does not create first charge in favour of the secured creditors; it only provides priority of payment to secured creditors over other creditors. Placing their interpretation of the newly added provisions, the counsels contended that that ‘priority' as inserted by the 2016 Amendment Act shall not displace the ‘first charge' of the State wherever the respective enactments provide so. The secured creditors shall have ‘priority' over Government dues only in cases where dues arising out of an enactment did not provide for the ‘first charge'.

Seven Questions of Law framed by the Court

  1. Does a secured creditor have a prior right over the relevant department of the Government to appropriate the amount realized by the sale of a secured asset?

  2. Despite Section 26-E in the SARFAESI Act or Section 31-B of the RDDB Act being attracted in a given case, whether dues accruing to a department of the Government ought to be repaid first by reason of ‘first charge' created over any property by operation of law (viz. the legislation in force in Maharashtra) giving such dues precedence over the dues of a secured creditor?

  3. Are the provisions in the SARFAESI Act according ‘priority' in payment of dues to a secured creditor for enforcing its security interest, prospective in nature?

  4. Whether Section 31-B of the RDDB Act can be pressed into service for overcoming the disability that visits a secured creditor in enforcing its security interest under the SARFAESI Act, upon such creditor's failure to register the security interest in terms of the amendments introduced in the SARFAESI Act?

  5. Whether the priority of interest contemplated by section 26-E of SARFAESI Act could be claimed by a secured creditor without registration of the security interest with the Central Registry?

  6. When, (if at all) can it be said that the statutory first charge under the State legislations (MVAT Act, MGST Act) stands displaced having regard to introduction of Chapter IV-A in the SARFAESI Act from 24-01- 2020?

  7. Whether an auction purchaser of a secured asset would be liable to pay the dues of the department in order to obtain a clear and marketable title to the property having purchased the same on “as is where is and whatever there is basis”?

The Answers

Questions 1 and 2: The Court perused the newly added provisions in the SARFAESI Act via the 2016 Amendment and noted that the object that the Parliament had in mind while incorporating Chapter IV-A in the SARFAESI Act seems crystal clear. “The dominant theme of the additions in the statute were intended to emphasize upon the need to register transactions of securitisation, reconstruction and creation of security interest with the Central registry (CERSAI)”. It was observed that Parliament designed Chapter IV-A in such a manner so as to include provisions which on the one hand, would disable any secured creditor to exercise the right of enforcing security interest under Chapter III of the SARFAESI without the CERSAI registration, and on the other enable the secured creditor, if it has the CERSAI registration, to claim priority over all other debts and all revenues, taxes, etc., in the matter of payment of the debts due to it. The Parliament used the word ‘priority over all other dues' in the SARFAESI Act to obviate any confusion as to inter-se distribution of proceeds received from sale of properties of the borrower/dealer.

Bare perusal of the 2016 Amending Act would show that the dues of the Central/State Governments were in the specific contemplation of the Parliament while it amended the RDDB Act and the SARFAESI Act, both of which make specific reference to debts and all revenues, taxes, cesses and other rates payable to the Central Government or State Government or local authority and ordains that the dues of a secured creditor will have ‘priority', i.e., take precedence.

It was stated the SARFAESI and RDDB Act being Central legislations, will prevail over State legislations as per the principle enshrined in Art. 254 of the Constitution. “Subject to compliance of the terms of Chapter IV-A, Section 26-E of the SARFAESI Act would thus override any provision in the MGST Act and the BST Act in case of a conflict with the SARFAESI Act”.

We have no hesitation to hold that the dues of a secured creditor (subject of course to CERSAI registration) and subject to proceedings under the IBC, would rank superior to the dues of the relevant department of the State Government”.

Question 3: Answering the question in affirmative, the Court once delved into the intention of the Legislature into bringing the 2016 Amendments in SARFAESI Act and RDDB Act via its Statement of Objects and Reasons. It was observed that the amendment was proposed to bring about a substantive change in the law and these changes were introduced for the first time “to suit changing credit landscape and augment ease of doing business”, as appears from the Statement for the amendment. These substantial changes, remedial in nature, having been brought in force for the first time, amount to substantive law and cannot be given retrospective effect. It was further noted that express provision in Section 26-D regulating the exercise of power by secured creditors, by barring them to take recourse to Chapter III of the SARFAESI Act without the CERSAI registration, there could be little doubt as to the fact that Section 26-E of the SARFAESI Act would apply prospectively from the date it was brought into force, i.e., 24-01- 2020.

Question 4: Answering this question negative, the Court observed that a statute has to be construed after ascertaining the legislative intent and in the context and scheme of the enactment. It was further stated that the end result of the RDDB Act and the SARFAESI Act is recovery of money, however, the process of recovery under the RDDB Act is largely court driven; and the process of recovery under the SARFAESI Act is essentially without court intervention. The nature of the two proceedings is, therefore, completely different.

The non-obstante clause in Section 31-B of RDDB Act makes it inescapably clear that the provision cannot be pressed into service in all cases where a secured creditor seeks enforcement of a security interest by taking recourse to the SARFAESI Act. Meanwhile, Sections 26-D and 26-E of SARFAESI Act, when read together, provides a special manner in which a secured creditor may enforce its security interest in supersession of others, without the intervention of courts. Enforcement of security interest under the SARFAESI Act by any other method is (if not expressly) impliedly barred.

Thus, Section 31-B of RDDB Act cannot be invoked to undo the disability that is expressly imposed by Section 26-D of the SARFAESI Act, more so when both these provisions have been brought on the respective statute books by the same 2016 Amending Act (notwithstanding that the two sections were made operative on different dates).

“A secured creditor, finding that it is disabled from obtaining the benefit of ‘priority' in terms of Section 26-E of the SARFAESI Act for want of CERSAI registration, cannot fall back on Section 31-B of the RDDB Act to claim ‘priority'”

Question 5: It was noted that the drastic power made available to a secured creditor by provisions contained the SARFAESI Act to dispossess the borrower/guarantor from the secured asset without intervention of Courts (but necessarily upon compliance with the procedural safeguards laid down therefor) has seemingly been arrested to a limited extent by incorporation of Section 26-D by the 2016 Amending Act. “Section 26-D, which also opens with a non-obstante clause, prohibits a secured creditor from exercising the rights for enforcement of security interest conferred by Chapter III, unless the secured interest created in its favour by the borrower has been registered with the CERSAI”. Not only registration with the CERSAI has been made a mandatory pre-condition for invocation of the provisions contained in Chapter III of the SARFAESI Act, the provisions relating to debts that are due to any secured creditor is available to be invoked only after the registration of security interest.

“This leads to the irresistible and inevitable conclusion that unless the security interest is registered, neither can the borrower seek enforcement invoking the provisions of Chapter III of the SARFAESI Act nor does the question of priority in payment would arise without such registration”.

Question 6: The Court opined if there has been an attachment and a proclamation thereof has been made according to a law prior to 24-01-2020 or 01-09-2016, i.e., the dates on which Chapter IV-A of the SARFAESI Act and Section 31-B of the RDDB Act, respectively, were enforced, the department may claim that its dues be paid first notwithstanding the secured dues of the secured creditors. However, in the absence of an order of attachment being made public in a manner known to law, once Chapter IV-A of the SARFAESI Act or Section 31-B has been enforced; the dues of the secured creditor surely would have ‘priority'.

In other words, if the immovable property of the defaulter is shown to have been attached in accordance with any law being enforced prior to Chapter IV-A of the SARFAESI Act, or Section 31-B of the RDDB Act and such attachment is followed by a proclamation according to law, the ‘priority' accorded by Section 26E of SARFAESI and Section 31-B of RDDB Act would not get attracted.

Question 7: It was observed that, notwithstanding the duty of the authorized officer to indicate the encumbrances attached to the secured asset in the sale advertisement inviting bids; if any detail in regard to such encumbrances is not indicated but the sale is expressly made on “as is where is, whatever there is basis”, the transferee shall be duty bound to deposit money for discharge of the encumbrances provided. However, such liability may be overcome if he is in a position to disprove the claim of the department that he had no constructive notice of the charge.

[Jalgaon Janta Sahakari Bank Ltd. v. Joint Commissioner of Sales Tax, 2022 SCC OnLine Bom 1767, decided on 30-08-2022]


Advocates who appeared in this case :

Rajiv Narula a/w Mehek Choudhary i/b. Jhangiani Narula and Associates for the petitioners in WP/2935/2018.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

rgnul
Conference/Seminars/LecturesLaw School News

About CBLT

Centre for Business Laws and Taxation, RGNUL has been established with a view to promote interdisciplinary research on Business Laws and Taxation. The Centre aims to engage in diverse activities including, but not limited to, organizing Webinars, Conferences, Workshops, and Moot Court Competitions; initiating credit and non-credit Courses; publishing Newsletters and Blog Series; engaging in meaningful research on business laws and taxation etc. The Centre would also indulge in formulating policies in a prescriptive sense and providing internships to various students of law in the field of research and development. For this purpose, the Centre aims to collaborate with other stakeholders and institutions for continuous growth in the field of business laws and taxation. Centre aims to encourage multi-disciplinary study in the field of Business Law including, but not limited to, General Corporate Governance, Banking Law, Company Law, Securities Law, Intellectual Property Laws, Taxation Law, Insolvency and Bankruptcy Laws, Competitions Laws, Mergers and Acquisitions and Dispute Resolution. The Centre aims to establish an effective venue for discussion and dialogue on contemporary issues in Business law and Taxation to generate awareness and facilitate research in this field.

About the Conference

The ability of the machine to analyze like a human brain, think, perceive, decide and solve problems, termed as artificial intelligence (AI), is increasingly used for strategizing and decision making. From fictional reality to virtual reality, AI has made rapid strides AI has made its mark in myriad ways. Advancements in data collection, processing and computational power have propelled AI systems which can be deployed in multifarious disciplines for performing myriad tasks viz., robotic surgeries,  voice recognition software, use of robots for service provision, chatbots for customer care, language translation, drone and AI led warfare, facial recognition tools, autonomous vehicles using automatic driving sensors etc. AI, propelled by data, is increasingly employed in day-to-day activities. The advancements in AI and its adoption can be judged from the fact that the humanoid robot Sophia was granted full citizenship by Saudi Arabia. AI, thus, has the potential to have a positive impact on various sectors like healthcare, the legal profession, education, agriculture, smart and efficient energy, transportation etc. However, the technology is still at the nascent stage and deployment of AI is confronted with multiple hindrances like lack of efficient ecosystem for working of the technology, lack of expertise, high cost and lack of legal regulation of AI. Furthermore, AI has posed several serious challenges, including but not limited to, data privacy and data protection; malicious use of AI; use of lethal autonomous weapon systems; ethics and AI; liability regime for AI, issues relating to Intellectual Property Rights etc. In this backdrop, law can-not remain aloof from such technological advancements. Therefore, countries across the globe are considering legal regimes for the regulation of AI. Many countries have enacted or are in the process of enacting laws for the regulation of various aspects of AI viz. data protection and data privacy, autonomous vehicles, facial recognition etc. However, none of the countries across the globe has been able to delineate the liability regime for AI. Keeping in view the adoption of AI in various sectors and its huge potential, governments of all countries are making efforts to adopt a policy framework for regulating the use of AI. In this backdrop, the Government of India mandated NITI Aayog to formulate National Strategy for Artificial Intelligence.

Themes of the Conference

  • AI and Lethal Autonomous Weapon Systems: International Humanitarian Law Perspectives

  • Big Data and its regulation

  • AI, Healthcare and Legal Liability

  • AI, Data Privacy, Data Protection and Law

  • AI systems for Legal Professionals AI in Education

  • XAI and Law

  • AI, Forensic Criminalistics and Criminal Justice System  

  • AI and Jurisdictional Issues  

  • AI and IPRs 

Abstract / Proposal Submission: 10 September 2022

Acceptance / Rejection Notification: 20 September 2022  

Last date of Registration: 30 September 2022  

Full Paper Submission: 25 October 2022  

Date of the Event: November 11-12, 2022

Paper Submission Guidelines 

  • The research papers should pertain to any of the sub-themes of the conference.

  • Participants shall be required to submit an abstract of around 350 words on or before 10th September 2022.

  • The abstract shall also contain the name and email id of the author/s, contact number and designation.

  • Acceptance of abstract will be communicated within 15 days after submission. The payment link will be shared separately if the abstract is selected.

  • The full paper should not exceed 6000 words. It shall be typed in Times New Roman, Font Size 12 on A4 size paper with 1” margin on all sides with 1.5 line ª spacing using MS Word.

  • Abstract and Research Papers should be emailed to cbltevents@rgnul.ac.in

  • Citations shall be strictly in accordance with the Bluebook (20th Edition).

  • University may publish accepted papers. Publication of papers shall be the exclusive discretion of the University.

Registration Fees:

  • Students and Researchers: INR 800

  • Academicians: INR 1000

  • Co-authors: INR 1500 (A maximum of 2 authors are permitted per paper)

  • Conference Participation Fee: INR 500  

For queries, please contact the undersigned.

Avishikta Chattopadhyay (+91) 9800960982

Yashvi Jain(+91) 9079274403

For more details: Brochure

rgnul
Law School NewsOthers

ABOUT RGNUL

Rajiv Gandhi National University of Law (RGNUL), Punjab, was established by the State Legislature of Punjab by passing the Rajiv Gandhi National University of Law, Punjab Act, (Punjab Act No. 12 of 2006). The Act incorporated a University of Law of national stature in Punjab, thereby fulfilling the need for a Centre of Excellence in legal education in the modern era of globalization and liberalization.

ABOUT KATHMANDU LAW SCHOOL, NEPAL

Kathmandu School of Law (KSL), established in 2000 AD as an affiliate of Purbanchal University, is a community-based, non-profit academic institution that upholds its unrestrained commitment for a pragmatic, research-based and community responsive legal education in the country. It was conceptualized within the ambit of non-profit movement dedicated to serve the need of an academically sound and functionally feasible legal education in Nepal.

OBJECTIVE

School of Social Sciences and Interdisciplinary Studies (SSSIS) at RGNUL, Punjab, is organising a One Week International Faculty Development Programme on Law and Social Sciences for the Faculty Members, Research Scholars and Professionals working in Academia, Research Institutes and other Organizations from 12th to 17th September, 2022. The aim of this Faculty Development Programme is to familiarise the participants with the contemporary developments in the field of Law and Social Sciences from multidisciplinary and interdisciplinary perspective. This programme would provide the participants with the opportunity to upgrade their skills to meet the contemporary challenges in their respective fields.

It would not only encourage the intellectual and scholarly development of the faculty members through dissemination of knowledge but also enable collaboration with colleagues across disciplines and borders. For an effective teaching-learning process in law, it is essential to incorporate contemporary teaching techniques tailored to the needs of specific subjects. The task of a good teacher is to integrate various disciplines in the most effective and efficient ways to achieve the desired results. The sessions in the present FDP will involve active interaction amongst the participants and the resource persons. The stalwarts from the fields of Law and Social Sciences would be delivering lectures and the Research Scholars, as well as the participating Faculty Members, will have the opportunity to ask questions and offer their comments at the end of every session.

THEMES

  • Law and Economics

  • Law and History

  • Law and Sociology

  • Law and Political Science

  • Law and Ethics

  • Law and Anthropology

  • Law and Criminology

  • Law and Psychology

  • Law and Literature

  • Law and Management

GENERAL GUIDELINES

  • All the interested participants can register themselves by filling the following Registration Form: HERE

  • The program would be held in Online mode through the Cisco Webex platform.

  • E-certificates would be provided only to those participants who will attend all the Sessions.

  • The last date for registration is 5th September 2022.

Date: 12th – 17th September 2022

Fees: Rupees 500/- per participant

Payment link- HERE

Who can attend:

Faculty Development Program is open for Research Scholars, Academicians and Professionals from any field.

For more details refer FDP-SSSIS or write at sssis@rgnul.ac.in

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: While adjudicating a case relating to life-threatening potholes on National Highways in Kerala, Devan Ramachandran, J. held that access to good roads is the right of citizens. Lamenting the sorry state of highways in the State, the Court expressed,

“Even though this Court has been issuing orders after orders, the roads turn into disrepair after initial and temporary restoration; and it is in such context that directions had been earlier issued to even initiate vigilance cases and other proceedings against Engineers and contractors.”

Noticeably, a person had died by falling into a pothole on the National Highway at Athani. The Amicus Curiae, Vinod Bhat brought it to the Court's notice that some stretches of the NH, particularly at Chalakkudy, Kodungalloor, Orumanayoor etc. have huge craters and potholes.

“The death of a person certainly shocks this Court; and in fact, couple of years ago it was this that spurred the various directions earlier issued.”

National Highway Authority of India (NHAI), conceded that there were some problems with the stretch in question and that since the stretch in question is part of the Highway covered under a “Build-Operate-Transfer” agreement with the Concessionaire; they are responsible for its upkeep, maintenance as also its restoration.

NHAI submitted that steps had already been taken to repair every stretch of the National Highway across the State to ensure that such instances do not recur. The work is entrusted to new contractors, at the risk and cost of the earlier ones. Shifting the liability on the earlier contractor, NHAI submitted that the agreements in question specifically enumerate the responsibilities of such Concessionaires, including to pay damages and compensation in the event of accidents, injuries, and death.

The State government submitted that steps had already been taken to cause an enquiry into the accident and that a necessary criminal investigation is underway.

The Amicus Curiae informed the Court that he had met the family of the victim — who survived his wife and two young children, one of whom is studying in college, while the other is still in school. The victim was returning home after a full day of work, when he hit the pothole which was filled up with water, thus being virtually invisible, leading to the fatal accident.

Considering the aforementioned submissions, the Court expressed,

“The gravity of the situation in Kerala is now for all to see. We do not react until we are the victim or someone, we know faces such a situation. It is always as if accidents only happen to others and not to ourselves. But this is a myth, as anybody with reasonable sense would reckon.”

Statutory Reliefs

Referring to compensation provisions, the Court observed that Section 198-A(2) of the Motor Vehicles Act, 1988 provides for fines and payment of compensation; further there are such provisions in the Concessionaire agreements also. Similarly, Section 8-B of the National Highways Act, 1956 provides for compensation and damages in the case when anyone causes distress or damage to a National Highway. However, the Court noted,

“Needless to say, we have provisions and provisions, but it is seldom put to effective implementation.”

The Court noted that the Disaster Management Act, 2005, is a classic piece of legislation, which empowers the District Collectors — who are the heads of the District Disaster Management Authority – to take action to avoid every disaster. Observing that the word ‘disaster' is defined in the said Act to include a mishap of calamity through man-made causes, the Court said,

“A road being potholed and craters being allowed to be formed, are certainly man made causes, particularly because it can only be seen to be on account of the total negligence or indifference of the concerned Authorities, including Engineers as also the Concessionaires and contractors who are entrusted with the work.”

Duties of District Collectors

The District Collectors cannot be mere spectators and react solely when an accident happens; but they are certainly enjoined to act to avoid it. This is the true spirit of the Disaster Management Act. However, this Court is yet to see any notification or order issued by a District Disaster Management Unit until an accident happens; and it is no different today, the District Collector, Ernakulam has now issued such an order.

“I fail to understand the purpose of an order issued under the Disaster Management Act after an accident has happened. It is surely for the Disaster Management Authority of every District to act proactively to ensure that such do not happen, whether that be in the National Highway, PWD Roads, or any other road under the control of the various Local Self Government Institutions.”

The Court noted that the District Collectors, in their capacity as the Heads of the District Disaster Management Authorities, have a definitive role to play and the Authorities under them have to be alive to any issues on the roads, particularly relating to potholes and craters. Even solitary ones will have to be taken note of and acted upon, fixing full responsibilities upon the Engineers, contractors, and other persons entrusted with the road. Since the Court cannot keep on passing orders every time there is a disaster and it is for the District Collectors to act.

Conclusion & Directions

In the light of the above, the Court while suo motu impleading the Regional Officer, NHAI, as an additional respondent issued following directions:

  • NHAI will make available the copy of the Concessionaire agreement by the next posting date.

  • The competent Authority of NHAI will cause an enquiry into the accident in question as also on the other stretchers which has gone into disrepair and file a report fixing responsibility on Engineers/Concessionaires as the case may be.

  • NHAI will take immediate steps to rectify every road under their control, either through the present Concessionaires or through new contractors; but which shall be done without any further delay, but within one week.

  • The District Collectors will issue orders with respect to any road in which potholes are found and take necessary action against the jurisdictional Engineer, contractors or any other person who may be responsible. All corollary consequences thereto will also follow, to the fullest warrant of law.

  • The earlier directions of this Court to initiate Vigilance cases and other investigation, will continue to hold effect and it will be supplementary to the afore directions.

Additionally, noticing that Section 7 of the National Highway Act provides the manner in which fees and tolls can be collected by the NHAI or by the Concessionaire, the Court stated that the collection of tolls normally would pre-suppose the responsibility on the Concessionaire or the competent Authority to maintain the roads in the best manner.

The matter is listed on 19-08-2022 for further hearing.

[C.P. Ajithkumar v. State of Kerala, WP(C) No. 32680 of 2008, decided on 08-08-2022]


Advocates who appeared in this case :

Advocate Tom K. Thomas, Advocate, for the Petitioner;

Vinod Bhat, Advocate, for the Amicus Curiae;

Standing Counsel Bidan Chandran, Advocate, for the NHAI;

Senior Government Pleader K.V.Manoj Kumar, Advocate, for the State.


*Kamini Sharma, Editorial Assistant has put this report together.

Case BriefsHigh Courts

Gauhati High Court: The single Bench of Michael Zothankhuma, J., disposed of the writ petition and held that a cousin cannot be included within the definition of ‘member of family’ under the provisions of Assam Public Services (Preferential Appointment) Rules, 1999 (hereinafter as APS Rules, 1999).

A writ petition was filed by the petitioner stating that he was the cousin of the deceased Gajendra Bijoy Rabha, who was a martyr in the Assam Movement and hence, was entitled to be given a preferential appointment as per the provisions laid down of the Assam Public Services (Preferential Appointment) Rules, 1999.

Dismissing the petition, the Bench observed that under Rule 2 (d) of the APS Rules, 1999, a preferential appointment is provided to only certain categories of family members which includes a son or daughter of the spouse or a brother or sister of a martyr or a physically disabled person. Therefore, the Bench held that a cousin cannot be included within the definition of ‘member of family’ under the APS Rules,1999. Hence, the petitioner was not entitled to preferential appointment in Assam Public Services as per the provisions of the rules.

[Jackie Rabha v. Principal Secretary to the Govt of Assam, 2022 SCC OnLine Gau 1074, decided on- 18-07-2022]


Appearances

For the Petitioner: MD B Islam, Advocate
For the Respondent: GA, Assam

Privacy & Technology Law
Interviews

Jade J. Lyngdoh is a National Law University, Jodhpur, honours candidate in constitutional law. Jade is a Facebook India Tech Scholars scholar, and as part of that programme, he is undertaking research on the intersection between freedom of expression and intermediary liability. He has also filed a public interest litigation before his home State’s High Court to challenge the State Government’s illegal use of COVID-19 contact tracing apps for violating citizens’ privacy. Jade has been interviewed by Nisha Gupta, EBC/SCC Online Student Ambassador who is currently pursuing her law from NLU Jodhpur.

1. Before I begin, the team at EBC-SCC Online extends warm greetings and welcomes you. It is indeed a privilege for me to interview you on behalf of the team for our readers. Before proceeding further with the interview, would you please take a moment to tell our readers about yourself?

My name is Jade Lyngdoh, and I am from Shillong, Meghalaya. Aside from work, I enjoy exploring new food and coffee, watching films and TV shows, and travelling. I am a huge fan of Anthony Bourdain. If you have not watched any of his work on TV, I strongly advise you to do so — there is so much we can learn from his shows.

2. You recently became a Facebook India Tech Scholar (FITS). Can you take us through the application procedure and tell us about how you landed this opportunity?

Yes, I was honoured to be chosen for the Facebook India Tech Scholars (FITS) program’s inaugural cohort. Eight scholars were chosen from four law schools in India for the inaugural 2021-2022 edition of the programme: NLSIU, NLUD, NUJS, and my university, NLUJ. When the initiative was announced, Meta and SAM, a law firm that is a knowledge partner of the programme, contacted our universities to invite students to apply. There were two steps to the selection process: the first was an essay-based round, followed by an interview round with the FITS Committee.

I would strongly encourage students to apply for future editions of the FITS programme. Students who intend on applying should generally aim to acquire an interest in topics of tech law and policy. It would be useful to have some experience working in the field, including with digital rights organisations, litigators specialising in digital rights, law firms or think tanks. By doing that, students cannot only learn a lot from their experience, but they can also contribute to some impactful work on issues which affect our society.

[Meta’s official press release about the programme can be found here.]

3. As a FITS scholar at NLUJ Jodhpur, what exactly does your work entail?

As part of the FITS program, each scholar is expected to work on a research paper which is based on a topic in the field of tech law and policy. Apart from this, scholars are also tasked with writing articles or making podcasts based on relevant areas of their research. Each scholar is placed under a think tank during the program, and the think tank acts as a mentoring institution for the scholar. This provides scholars an opportunity to be mentored by some of the leading folks in the tech law and policy in the region.

For the 2021-2022 edition of the FITS program, I have been placed under Software Freedom Law Center (SFLC.in). SFLC is an organisation which works on some incredible projects in support of digital rights, so it truly is an honour to be mentored by it.

4. Apart from being a FITS scholar, you have done multiple internships in the field of digital rights, very different from the usual corporate law pursuit. Can you tell us about them?

Yes, indeed. While in law school, I chose to work on projects that I suppose differ from those chosen by my peers on campus.

I have been fortunate enough to engage and work with people not only in the legal community, but also in civil society, academia, industry, and government. Among the numerous projects to which I have been able to contribute to, I could note my experience advocating against India’s disturbing trend of internet shutdowns. I have also had the chance to learn about the need for robust data protection legislations in the Asia-Pacific region. In addition to these, I was part of an excellent research team that helped me understand the impact of the misuse of laws to restrict media freedom. These have all had an influence on the person I am now, and I am thankful to have had these opportunities.

5. Your public interest litigation (PIL) in Meghalaya paved the way for change in your home State. Can you tell us about the filing, Jade Jeremiah Lyngdoh v. Union of India? 

That is an incredibly generous statement.

Well, I filed the PIL (public interest litigation) before the High Court of Meghalaya during the height of the COVID-19 Pandemic. If one recalls, that was a time when we noticed authorities rushing to create contact tracing apps which supposedly allowed them to limit the spread of COVID-19.

At that point, the State Government took a decision to enforce mandatory contact tracing apps. That was concerning to me because the Government began these initiatives in the absence of a legal framework and without setting any data privacy protocols in place. Because of the serious risks these indicatives posed to our rights to privacy, I decided to file a PIL before the High Court.

In its final judgment, the High Court of Meghalaya held that data privacy safeguards were an essential condition, especially in instances where the State required us to use a particular mobile app. I believe the petition was successful because shortly after the petition was filed, the State came on record to note that it had stopped using the apps which the petition challenged. Regardless of that, the High Court directed the State Government to conduct a thorough investigation into the concerns which my petition outlined, so I believe it was a win for all of us. I must convey my gratitude to Mr Kaustav Paul (Senior Advocate) and his colleagues in Shillong for their efforts to assist me with the petition.

6. You were always inclined towards community rights and seem to have made the best use of your work in the privacy/tech field. Could you tell us more about your work?

In the recent past, I have been able to work on some exciting projects in collaboration with colleagues in the legal community. In 2021, I sent a legal notice to the State Government of Meghalaya over its unlawful use of facial recognition technology. The State Government decided to use facial recognition in a mobile app to verify the identities of old-age pensioners, and I believed that this posed a risk to their rights to privacy. With assistance from the Internet Freedom Foundation (IFF), I sent a legal notice to the State and this outlined several points of concern which needed to be immediately addressed. Soon after the legal notice was sent, we received a response from the State Government and that response revealed several shortcomings in the State Government’s understanding of our rights.

In addition to raising concerns on the unlawful use of facial recognition, I have been able to work on documenting the extent of internet shutdowns in my State. By using requests filed under the Right to Information Act, we now understand that Meghalaya ordered six internet shutdowns since the Anuradha Bhasin1 judgment was rendered by the Indian Supreme Court in 2020.

When coupled with additional public data, we now understand that the internet was shut off 14 times in the State since 2015. If this figure is compared with those of other States in the region, it becomes clear that Meghalaya orders the most internet shutdowns in the North-East. In my opinion, this is an important reminder that authorities should not shut down the internet. These internet shutdowns have a huge impact on our human rights, and authorities can never justify such abuse.

7. Even as law student, you continue to write columns for Hindustan Times, The Telegraph, The Wire, etc. Can you tell us more about it?  

Because I only started writing about a year ago, I may not be the ideal person to give advice on how to write columns. What I can tell you is that it is essential for lawyers to write more columns, particularly for a non-specialised readership. Far too often, the columns and blogs we write are overly complicated, making it impossible to reach a larger readership. We must aim to reduce legalese and make it easier for our communities to grasp the law and how it affects them.

8. Keeping in mind your academic background, what are your views on the concept of “exhaustion of a search”? 

If I understand the term right, it might relate to a moment in research where a writer is unable to make further progress owing to a lack of primary or secondary data. As someone who is currently writing a research paper, my advice in such an instance would be to admit the limitations of research. As someone once said to me, writing does not necessarily have to be about expressing the right statements, it could also me about asking the right questions.


1. Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.

OP. ED.SCC Journal Section Archives

   

NO CONTRACT FOR UNLAWFUL CONSIDERATION OR OBJECT — BUT WHAT IS LAW?

The Contract Act, 1872 (“the Contract Act”) does not profess to be a complete code dealing with contracts law1. The Indian courts, however, have held the Contract Act to be exhaustive in relation to a particular subject to the extent it deals with that subject2. Though, what does one do when the Contract Act itself looks to incorporate all laws in force while considering the enforceability of contracts without as much as defining the ambit or scope of law?

A contract is a legally enforceable agreement. Section 10 of the Contract Act mandates that agreements for an unlawful consideration or an unlawful object are not “contracts” and thus not enforceable. While the words “lawful” or “unlawful” are not defined in the Contract Act, Section 23 provides that a consideration or object is unlawful if it is, inter alia, “forbidden by law” or would “defeat the provisions of any law”. Again, the word “law” has not been defined in the Contract Act.

This article is an exploration of what amounts to “law” under Section 23 of the Contract Act in an attempt to analyse the restrictions while contracting in India. It is specifically examined whether agreements contrary to delegated legislation like rules, regulations, notifications, and circulars are unenforceable in India due to Section 23 of the Contract Act.

“LAW” DEFINED

Clause (3)(a) of Article 13 of the Constitution of India (“the Constitution”), defines the word “law” to include “any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law”. This is a non-exhaustive definition, with the word “include” used to enlarge the scope of the subsequent words and phrases. However, the definition of clause (3)(a) of Article 13 is arguably relevant only for the purposes of Article 13 and does not have any “relevance in deciding a question whether an agreement is void and is not enforceable in law3.

The Supreme Court, while examining what constitutes “law” for the purposes of Article 19, relied on Article 13(3)(a) to hold that there is no distinction between law made by the legislature and subordinate legislation for placing restriction on the exercise of fundamental rights under Article 19(1)4. Similarly, Article 366(10) defines “existing law” to mean “any law, Ordinance, order, bye-law, rule or regulation” for the purposes of interpreting the Constitution. Notably, the words “notification, custom or usage” are absent in Article 366(10). While the definitions and interpretation of “law” under the Constitution are useful guides to interpret what may amount to “law” under Section 23 of the Contract Act, one need not belabour on the constitutional provisions due to the General Clauses Act, 1897 (“the General Clauses Act”).

Section 3(29) of the General Clauses Act defines “Indian law” to mean any Act, Ordinance, Regulation, rule, order, bye-law or other instrument which before the commencement of the Constitution, had the force of law in any Province of India or part thereof, or thereafter has the force of law….

The definition of “Indian law” is applicable to all Central statutes made after the commencement of the General Clauses Act. This definition is also arguably not directly applicable to Section 23 of the Contract Act since the Contract Act is prior to the General Clauses Act. Therefore, one must look to precedents to determine the scope of the word “law” used in Section 23 of the Contract Act.

INTERPRETING “LAW” UNDER THE CONTRACT ACT

The narrow interpretation of the word “law” in Section 23 of the Contract Act limits it to the provisions set out in a legislative enactment. The Supreme Court, in Union of India v. L.S.N. Murthy3, limited the word “law” in the expression “defeat the provisions of any law” in Section 23 of the Contract Actto the expressed terms of an Act of the legislature”. Going by this narrow interpretation, courts may enforce contractual terms contrary to rules and notifications since the rules are not express terms of legislative Acts or statutes. Notably, the directions under question in L.S.N. Murthy case3 were in a Letter from the Ministry of Defence. The Supreme Court held that the letter may be an instruction to the officers of the Ministry of Defence but was not an Act of the legislature [SCC Para 21].

The Supreme Court, in its recent judgment in G.T. Girish v. Y. Subba Raju5, gave much needed clarity on this narrow interpretation taken in L.S.N. Murthy case3. One of the issues before the Supreme Court in G.T. Girish case5 was whether an agreement to sell was contrary to Section 23 of the Contract Act, if it was contrary to or prohibited in the statutory rules, namely, the Bangalore Rules of Allotment, 1972. The respondent, relying on L.S.N Murthy case3, contended that there is no “law” as understood under Section 23 of the Contract Act which would be defeated by the agreement since the restriction was only in the rules.

Rejecting the request to refer the matter to a larger Bench, the Supreme Court distinguished L.S.N. Murthy case3 observing that it pertained to a letter and not with statutory rules. The Supreme Court in G.T. Girish case5 further observed that the Court in L.S.N. Murthy case3 had failed to notice the judgment of a three-Judge Bench in Gherulal Parakh v. Mahadeodas Maiya6.

The Supreme Court in the G.T. Girish case5 held that Section 23 of the Contract Act contemplates law, in all its forms, being immunised from encroachment and infringement by a contract. While a contract expressly or impliedly prohibited by “law” would not be enforced by courts, rules or orders under authority derived from the legislature are species of subordinate legislation and will be “law”. A statutory rule, which is law within the meaning of Article 13 of the Constitution, would be law under Section 23 of the Contract Act.

Interestingly, a Full Bench of the Allahabad High Court held7 that: (Abdul Hameed case7, SCC OnLine All para 14)

14. … the term “law” includes an order by a competent authority having the force of law. Consequently, where any agreement is forbidden by an order of the competent authority having the force of law, it shall be an agreement forbidden by law as contemplated by Section 23 of the Contract Act.

The Allahabad High Court drew inference from Section 3(29) of the General Clauses Act and Articles 13(3)(a) and 366(10) of the Constitution to conclude that “law” must include “not only an Act and Ordinance but also Regulations, rule, order, bye-law or other instrument which has the force of law”.

Thus, “law” for determining the enforceability of contracts under Section 23 of the Contract Act includes all forms of subordinate legislation deriving authority from statutory provisions. Will this, therefore, include not just statutory rules but also notifications, circulars, or orders issued by an authority exercising powers delegated by statute?

EXTENT OF DELEGATED LEGISLATION AS “LAW” UNDER THE CONTRACTS ACT

It is trite that rules made under a statute, particularly those which are placed before the legislature, must be treated for all purposes of construction or obligations, exactly as if they were in that statute and will have the same effect as if they were contained in the statute8. The directions are incorporated and become part of the statute itself9.

Going a step further, the Supreme Court has held circulars and directions which have a statutory force ought to be read as supplement to the provisions of the statute10. The Supreme Court held that a statutory order issued by the Central Government under the Essential Commodities Act, 1955 was “law” within the meaning of Article 13 while analysing the validity of the order11.

In line with these judgments, it appears that any direction drawing force from statute will be “law” under Section 23 of the Contract Act.

INVALIDITY OF CONTRACTS DUE TO LEVY OF PENALTY

Another crucial factor to consider is that statutes generally provide for a penalty in case of non-compliance of notifications, circulars, and directions issued by the designated authority exercising delegated power. Penalties are necessary to ensure compliance with the directions of the authority empowered under any statute and imply a prohibition. The Supreme Court observed that agreements are void if their performance, though not prohibited in the statute, would result in a penalty:“[i]n every case where a statute inflicts a penalty for doing an act, though the act be not prohibited, yet the thing is unlawful, because it is not intended that a statute would inflict a penalty for a lawful act12.

A contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition13. Thus, it is arguable that contracts contrary to directions of statutory authorities while exercising delegated powers are unenforceable under Section 23 of the Contract Act since they are likely to result in the levy of a penalty. However, the Supreme Court came to a different conclusion in the case of B.O.I. Finance Ltd. v. Custodian14.

The contracts in question before the Supreme Court in the B.O.I. Finance case14 pertained to sale, purchase, and buy-back of unlisted securities between banks and third parties. It was contended that the contracts in question were ready-forward transactions contrary to the provisions of the Banking Regulation Act, 1949 and the Securities Contracts (Regulation) Act, 1956. RBI had issued confidential circulars prohibiting banks from entering into buy-back arrangements of such unapproved securities. The Supreme Court observed that RBI’s circulars set out a binding prohibition on banks and penalty may be levied on non-compliant banks under Section 46 of the Banking Regulation Act, 1949. However, the Supreme Court held that the contracts in question could not be invalidated since they were between banks and third parties who could have been unaware of RBI’s confidential circulars14.

On the other hand, the Supreme Court in Asha John Divianathan v. Vikram Malhotra15, held that transactions which required RBI’s prior permission would be unlawful until the permission is received. In this case, Section 31 of the Foreign Exchange Regulation Act, 1973 (“FERA”) required prior general or special permission from RBI to transfer or dispose of immovable property situated in India by sale or mortgage by a person who is not a citizen of India. The Supreme Court opined that such transfer cannot be given effect to until RBI’s permission is received and a person contravening this requirement may be visited with penalty under Section 50 of FERA15.

CONCLUSION

Under Section 23 of the Contract Act, courts can refuse enforcement of contracts which are contrary not just to express or implied statutory provisions but to any delegated rules, regulations, notifications, circulars, or directions having statutory force.

In addition, contracts which are not unlawful but their performance may result in an unlawful act or consequence are also hit by Section 23. For instance, Section 144 of the Companies Act, 2013 provides that a company’s statutory auditor cannot provide certain services like internal audit, investment advisory services, and management services to the said company or its holding/subsidiary company. While contracts for provision of non-audit services by qualified chartered accounts by themselves are not illegal, there is a clear prohibition in law on auditors rendering non-audit services to companies where they are conducting the statutory audit. While chartered accounts contravening Section 144 are separately liable for misconduct by the regulator i.e. ICAI, courts are likely to hold that contracts for non-audit services between companies and their statutory auditors are unlawful under Section 23 of the Contract Act.

On similar lines, performance of a contract resulting in levy of penalty prescribed by statute will render the contract unlawful under Section 23. However, there are notable exceptions to this rule. It, therefore, becomes necessary to determine whether a contract will be enforceable based on the facts of each case. The Supreme Court has held that what is to be seen is whether the illegality goes so much to the root of the matter that the claimant cannot bring his action without relying upon the illegal transaction into which he had entered16. Indicating that courts may also consider equities while deciding on the contractual disputes, the Supreme Court observed that when both parties are confederates in the fraud, courts will have to find out which approach would be less injurious to public interest17.

In addition, contractual clauses requiring compliance with “applicable law” are common and one must bear the wider interpretation of Section 23 in mind while entering into contracts. There is no material difference between the expressions “existing law”, “law in force”, and “Indian law18. Therefore, parties must remain alive to applicable laws and subordinate legislation while determining their rights and obligations under any contract, particularly since subordinate legislation can override existing contracts19.


† Senior Associate, AZB & Partners.

1 13th Report of the Law Commission of India on the Contract Act, 1872, September 1958. Last accessed 18-5-2022 at <https://lawcommissionofindia.nic.in/1-50/Report13.pdf>.

2 Superintendence Co. of India v. Krishan Murgai, (1981) 2 SCC 246, para 25.

3 Union of India v. L.S.N. Murthy, (2012) 1 SCC 718, para 15.

4 Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574, para 64.

3 Union of India v. L.S.N. Murthy, (2012) 1 SCC 718, para 17.

5 (2022) 12 SCC 321 : 2022 SCC OnLine SC 60.

3 Union of India v. L.S.N. Murthy, (2012) 1 SCC 718, para 15.

3 Union of India v. L.S.N. Murthy, (2012) 1 SCC 718, para 15.

5 G.T. Girish v. Y. Subba Raju, (2022) 12 SCC 321, paras 95-96 : 2022 SCC OnLine SC 60, para 69.

7 Abdul Hameed v. Mohd. Ishaq, 1974 SCC OnLine All 111, para 14.

8 State of U.P. v. Babu Ram Upadhya, AIR 1961 SC 751.

9 Peerless General Finance and Investment Co. Ltd. v. RBI, (1992) 2 SCC 343, paras 51-52.

10 ICICI Bank Ltd. v. APS Star Industries Ltd., (2010) 10 SCC 1, para 40; Internet & Mobile Assn. of India v. RBI, (2020) 10 SCC 274, para 150.

11 Narendra Kumar v. Union of India, AIR 1960 SC 430, para 6.

12 Mannalal Khetan v. Kedar Nath Khetan, (1977) 2 SCC 424, para 21; Asha John Divianathan v. Vikram Malhotra, (2021) 19 SCC 629, para 26 : 2021 SCC OnLine SC 147, para 25.

13 Mannalal Khetan v. Kedar Nath Khetan, (1977) 2 SCC 424, para 19; Union of India v. A.K. Pandey, (2009) 10 SCC 552, para 14.

14 B.O.I. Finance Ltd. v. Custodian, (1997) 10 SCC 488, paras 33-34.

15 (2021) 19 SCC 629, para 34 : 2021 SCC OnLine SC 147, para 34.

15 Id., para 49 : 2021 SCC OnLine SC 147, para 45.

16 Kedar Nath Motani v. Prahlad Rai, AIR 1960 SC 213, para 15; Narayanamma v. Govindappa, (2019) 19 SCC 42, para 16.

17 Narayanamma v. Govindappa, (2019) 19 SCC 42, para 18.

18 Edward Mills Co. Ltd. v. State of Ajmer, AIR 1955 SC 25, para 14; Madhaorao Phalke v. State of M.B., AIR 1961 SC 298, para 20.

19 PTC India Ltd. v. Central Electricity Regulatory Commission, (2010) 4 SCC 603, para 58.

Op EdsOP. ED.

   

Jewellery, as soon as we hear the term, rings a bell for occasions such as wedding, birthday of a special one or an investment made for the future, especially in a country like India. Indian jewellery with its exquisite craftsmanship and variety, inspired from India's rich culture and heritage, has an element of extensive uniqueness in its designs.

With the pandemic hit world in the present and in the past, from traditional modes of business, it is the need of the hour for various jewellers to have online businesses with a website, to cater to the stiff competition across the industry. With expansion of businesses on e-commerce for reaching a wider consumer base and additional sales, there is a greater need for protection of various jewellery brands and designs, because of greater accessibility of the designs to the public at large. Intellectual property law provides such protection for various jewellery brands, their designs, and ideas. Further, there is a greater need for protection on the e-commerce platforms against cybercrimes. For luxury goods like jewellery, criminals are devising methods to hack online security of the consumers.

Given the nature of goods and credibility requirement, the jewellery industry has to follow certain compliances to safeguard the interests of the consumers and to create uniform standards. Bureau of Indian Standards plays a key role in enforcing and applying these compliances.

The article also includes a comparative analysis across jurisdictions to entail the protection available in the jewellery industry and better application in India.

Protection of jewellery under the intellectual property law regime in India

► Trade mark

The Trade Marks Act, 19993 (Indian TM law) implies that the name, symbol, form, packaging, and colour combinations used in jewellery can all be protected under the law. There are three requirements for seeking trademark protection for jewellery which are as follows:

1. An appropriate mark for jewellery is required.

2. The mark for jewellery must be vividly displayed.

3. The jewellery mark must be distinct from other recognisedjewellery marks.

To obtain a trademark for a jewellery name, form, logo, or colour, one must demonstrate originality. For the jewellery to have a distinct personality, it must have intrinsic traits that set it apart from other pieces of jewellery. Further, as issue which isa bone of contention in case of jewellery industry is the use of family names for example, Joy Alukkas or Kalyan Jewellers, one of India's biggest jewellers, is named after its founder. There are umpteen number of cases where an enterprise is named after the family or the founder. However, registration of such family names has become a tricky domain from a trademark perspective. The Indian TM law, unlike its predecessor law4, has no provision to allow or disallow the use of surname or personal names. The definition of the “mark” doesnot explicitly include or exclude surnames and personal names. Thus, it is assumed that such registration is allowed, and hence, even applied for. The renowned automobile brand Mahindra and Mahindra5, in the past has obtained successful injunction against a party using the surname “Mahindra” as their trade name in spite of this surname being quite common in India. The rationale behind this being that Mahindra had acquired distinctiveness and secondary meaning of the word “Mahindra” with its continuous use and if such a mark is used by another party, it would result in confusing the public.

However, in another case6, filed by a leading lawyer in Delhi (currently a sitting Judge at the High Court of Delhi), against a Delhi-based law firm called “Singh and Associates,” the Court noted that the surname “Singh” is a very common surname in India and no person can claim his/her monopoly over it. Hence, for registration and further protection, it becomes important for a brand to acquire its own distinctiveness for further protection.

► Copyright

Sketches of jewellery designs are protected under the Copyright Act, 19577, as artistic work. Copyright protection lasts throughout the designer’s lifetime plus another 60 years. Copyright registration is not a mandate in this regard, however, if you wish to enforce a design, you must register it.

Creating a 2-dimensional or 3-dimensional representation of a jewellery design or drawing can also be protected under the Act. Moreover, the idea, expression, and dichotomy come into play in this regard. The owner of the jewellery might claim copyright not only because of the uniqueness of the concept but also because of the distinctive method in which his jewellery is presented.

► Design

The appearance (photographic depiction) and pattern of an individual product or a group of goods are protected under the design law. The design is protected for ten years, which can be extended by another five years. Because the two laws overlap when it comes to jewellery, the Copyright Act stipulates that if the work can be registered as a design, it will not be protected under copyright and if it can be registered as a design but hasnot been, copyright protection will be lost if the product using the design is manufactured more than 50 times.8 Hence, in case a design is reproduced more than 50 times, then registration must be done under the Designs Act, 20009 to get protection for 15 years, otherwise copyright protection can be sought for the design.

The legislative aim underlying the Copyright Act, 1957, and the Designs Act, 2000 has been made clear in Microfibres Inc. v. Girdhar & Co.10, wherein a Division Bench of the Delhi High Court observed that the relevant Acts appear to be providing higher protection to “pure original creative works” and “lesser term of protection to designs with a commercial character”.

► Geographical Indication (GI)

GIs may be held in a group and protect indicators for an indefinite time. GI registration and protection is excessively helpful as only members of a community can produce those designs. It has been a practice in India to grant GIs for traditional jewellery designs, for instance, “Silver Filigree of Karimnagar” as Karimnagar had been producing the unique jewellery for generations. Also, a GI for “Temple Jewellery of Nagercoil” was filed in 2007, and a logo was registered in 2016 in connection to the GI. The origins of temple jewellery may be traced back to Nagercoil in the 17th century, according to the GI’s journal copy.

► Patent

The technology used in making jewellery can be patented. However, it has to be unique and different. There can be two cases where a patent can be granted (a) patent on the product i.e. article of jewellery; and/or (b) process of manufacturing a piece of jewellery. However, in all cases, the following essentials are required to be satisfied:

(a) Patentable subject-matter: The Patents Act, 197011 provides for cases where an invention is not patentable. Hence, the precondition for patenting is to come out clear from these conditions.

(b) Novelty: Novelty is an important criterion in determining patentability of an invention. novelty or new invention is defined as “any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification i.e. the subject-matter has not fallen in public domain or that it does not form part of the state of the art”. The novelty requirement in essence states that an invention should never have been published in the public domain. It must be new with no same or similar prior arts.

(c) Inventive step or non-obviousness: Inventive step is defined under Section 2(ja)12 of the Patents Act as “a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art”. This means that the invention must not be obvious to a person skilled in the same field as the invention relates to. It must be inventive and not obvious to a person skilled in the same field.

(d) Capable of industrial application: Industrial applicability is defined under Section 2(ac) of the Patents Act as “the invention is capable of being made or used in an industry”. This essentially means that the invention cannot exist in abstract. It must be capable of being applied in any industry, which means that the invention must have practical utility in order to be patentable.

Hence, for obtaining a patent, it is essential to comply with all the abovementioned conditions. Further, once protection is granted, the owner gets a strong set of rights to be the sole manufacturer of such a product.

► E-commerce and jewellery

India’s fastestgrowing and most interesting commercial transaction channel is e-commerce. From US $48.5 billion in 2018, the Indian e-commerce sector is anticipated to rise to US $200 billion by 2026. Between 2017 and 2018, online jewellery sales increased by more than 14%.13 Modern e-commerce technology allows replicating (or even improving) the in-store purchase experience easier than ever before.

Online buyers can analysejewellery pieces from every aspect, using techniques such as 360-degree imagery and zoom lenses. The industry is likely to grow more competitive as more merchants in the jewellery industry see the tremendous possibilities in the e-commerce sector.

But e-commerce, has its challenges for IP owners, as pointed by the Delhi High Court in Christian Louboutin Sas v. Nakul Bajaj14, that the “sellers of counterfeit or infringing products seek shelter behind the platform’s legitimacy.” The Court further went on to point out that the owner of the trademark suffers a huge loss of customer base especially in the case of luxury goods like jewellery and the trademark owner's brand equity is also diluted.

Even after the challenges, e-commerce provides a huge opportunity for jewellery brands to present themselves outside their geographical territory. A robust framework with the right legal and cyber protection is a key to successful e-commerce operations. Further, in any e-commerce operation, compliance with the information technology laws is a must as an operator tends to collect a series of personal data right from preferences of a customer to their financial details such as bank account. Hence, protection of the customer data becomes a high-risk factor and the most important aspect in the e-commerce industry.

► Protection of jewellery business from cybercrime

While e-commerce has proven to be a great opportunity for both sellers and buyers of jewellery but, it has its own perils. A recent study from Foason shows fraud attacks increased by 19% from 2018 to 2019 across the online retail landscape.15 This is worrisome especially in the case of luxury items like jewellery which involve huge capital transactions.

These attacks range from phishing, return abuse and shipping fraud to account takeovers, identity theft and other emerging threats. Recently, the famous jewellery brand Pandora also, became a victim of phishing after, multiple people were sent after a fake website manifesting to be Pandora showed its products at unreasonably low rates16. Similarly, last year the global jewellery brand Claire's succumbed to a mageware attack when the hackers were able to breach into the website of the brand and access the payment details of the buyers.17

Thus, protection of jewellery businesses from cybercrime becomes essential, and seeing an opportunity arising out of this situation, a lot of insurance companies globally have started providing cybersecurity insurance which indemnify in case of any cyberattack.

► Why certifications and standardisations are essential

Apart from the brand and aesthetics, the quality of a jewellery piece also becomes a relevant factor to draw consumers from the window to the counters, in other words, for a precious good like jewellery, a consumer would always want to check the quality before buying. Standards and certifications are the most important elements to determine the genuineness and quality of a product.

In India, the national standard body is the Bureau of Indian Standards (BIS), which is based on certain international standards and allows the jewellers to register and obtain the same. A registered jeweller can have his jewellery hallmarked through the BIS authorised Assaying and Hallmarking Centres (A&H Centre).BIS which has been established through the Bureau of Indian Standards Act, 201618 (BIS) is theNational Standard Body of India forstandardisation, certification, and testing and certification of goods. BIS provides traceability and tangibility benefits to the national economy by safeguarding reliable consumer goods; mitigating health risks to buyers; supporting foreign trade alternatives; controlling the proliferation of varieties. There are guidelines that stipulate the procedure for grant, operation, renewal, and cancellation of the certificate of registration. The certificate of registration issued by the BIS for sale of hallmarked articles shall be displayed prominently in the sales outlet19. The consumer is entitled to compensation from the jeweller in case of failure of the sample which has been sold by him.

Hallmarking, why is it necessary: The precise assessment and formal recording of the proportional amount of precious metal in items is known as hallmarking. As a result, hallmarks are official markings that are employed as a guarantee of the purity or fineness of precious metal goods in several nations. Under this system, BIS grants jewellers registered status under the hallmarking scheme. Any of the BIS approved Assaying and Hallmarking Centres can have their jewellery hallmarked by BIS certified jewellers.

From 1-6-2021, the Government has made hallmarking of gold jewellery and antiquities compulsory.20 The goal of mandatory hallmarking of gold and silver ornaments is to safeguard consumers from being duped.

► Protection of jewellery— Global trend

United States: Under the US law, the Copyright Act of 1976 gives a work copyright protection from the moment it is created (as long as it is original and has been fixed in a physical medium of expression) and allows a work to be legally registered with the copyright office. The copyright office needs proof of originality as outlined in the Copyright Act and the Supreme Court case Feist Publications Inc. v.Rural Telephone Service Co. Inc.21 to acquire registration.

While copyright generally protects a jewellery design from the start, a trademark can only protect a design once it has been on the market for at least five years and the maker or designer has invested a significant amount of time and money into it.

In Yurman Design v.PAJ22 the plaintiff “Yurman” wanted copyright and trade dress protection for whole range of products it was argued that PAJ had violated copyrights and trade dress rights for certain jewellery which had “the creative combination of cable (jewellery) with other components” the Court held the trade dress claim was excessively broad and did not properly explain the precise common features intended to be protected. Consequently, the Court determined that, while Yurman’s copyright in its distinctive cable braided pattern was sufficiently unique, it failed to define the components and qualities that distinguish its trade dress thus, it was awarded copyright but not the trade dress.

Later in Yurman Design v.Golden Treasure Imports Inc.23 Yurman filed another trade dress infringement suit against a different defendant for identical designs. Yurman did not attempt to protect the trade dress of a whole line of jewellery without referring to specific parts, but rather laid out all the numerous designs as contained in specific pieces of jewellery, trying to protect the trade dress of each item separately. In response, the Court determined that its description was enough and gave it protection. Thus, while one aspect of jewellery design may appear in several pieces from the same source, owners seeking trade dress protection should specify the protection sought in each unique design in the collection.

United Kingdom: Every object sold as precious metal (gold, silver, or platinum) in the United Kingdom must be examined and hallmarked by an independent third-party assay office to ensure that the metal is of the quality indicated by the retailer, according to the British Hallmark Act, 1973. Copyright protection is available in the United Kingdom as long as your jewellery design is substantially distinctive and unique. In order to defend the rights, there is a need to establish ownership as well as the date your jewellerywas created. Designs are automatically protected by “design right” which means that using them for any purpose without the owner's consent would be a patent infringement. Any violation of design or copyright (such as by other jewellers) would empower the IP holder to file a civil lawsuit to recover damages. Unregistered design rights are only granted to three-dimensional designs in the United Kingdom. To protect a two-dimensional design, the intellectual property office (IPO) recommends filing a registration application with the UK Designs Registry.

► Contractual protection

For a jewellery line, there maybe a case where they maybe hiring third-party contractors for different tasks such as advertisement, celebrity endorsement, designers, manufacturers, etc. A good and watertight agreement is the need of the hour in such transactions as it is not just a question of money but also of goodwill, quality, and four cornered protection. A poorly drafted contract or an arrangement without a contract may lead to either poor services or any liability which is uncalled for. Hence, while developing a business and even till the end, rock solid contracts are the most important factor to be taken care of. A contract not only ensures clarity of terms but also givesjewellers a way to transcribe the best practices in the industry in clear words. More often than not, the jewellery industry, even after being one of the most lucrative industries, faces a good attrition rate. Hence, it becomes far more important for an employer to ensure effective employment agreements and policies to be in place as it will not only ensure fair terms with employees but will also help in protecting the designs and secrets of a jeweller and its business.

► Conclusion

The abovementioned IP rights protect the interests of the creators while the rights of the buyers are protected by bodies like BIS through tools like Hallmarking. Under the Indian regime, we can claim copyright on jewellery sketches/drawings under the copyright laws. When it comes to the DesignsAct, the pattern, form, and colour of jewellery can all be claimed as protected. The TM Act protects the name, logo, domain name of a jewellery brand. Patent law may protect the unique process of making a piece of jewellery and geographical indication may protect traders of a particular area producing a unique set of articles which represents their area. Almost all countries have a common basis for granting IP rights for jewellery i.e. originality but there are different tools through which they can be protected, and damages granted for breach vary exponentially.

The monetary penalty in countries like UK and US seems to be exponentially higher as compared to India and this shall also be followed in India to deter wilful infringers. Also, the jurisprudence regarding e-commerce seems much more advanced in countries like US and UK as they seem to provide better protection to consumers. Thus, the Indian legislature as well, as the judiciary, shall thrive to bring the relevant jurisprudence at par with modern needs. A need for such protection and safeguard arises more as industry and the methods of doing business are evolving and transitioning from one mode to another. A consumer can now at its comfort, see, explore, and purchasejewellery articles from sellers all over the country. Such a transition is not only opening new doors and new opportunities but also inviting new and advanced threats to businesses. These are the times where it is important for a jeweller to upscale his/her business with the right legal and IT protections. These times also call for industry bodies and the lawmakers to make more stringent laws and policies for ensuring the industry thrives in the long run.


† Co-Founding Partner at Chambers of Jain and Kumar. Author can be reached at aarushi@jainkumar.com.

†† Partner at Chambers of Jain and Kumar. Author can be reached at yojit@jainkumar.com.

The views expressed in this paper are the personal views of the authors.

3. Trade Marks Act, 1999.

4. Trade and Merchandise Marks Act, 1958 under clause (d) of S. 9 refused the registration of surname as trade mark.

5. Mahendra and Mahendra Seeds (P) Ltd. v. Mahindra & Mahindra Ltd., 2002 OnLine Guj 324.

6. Prathiba M. Singh v. Singh and Associates, 2014 SCC OnLine Del 1982.

7. Copyright Act, 1957.

8. Ritika (P) Ltd. v. Biba Apparels (P) Ltd., 2016 SCC OnLine Del 1979.

9. Designs Act, 2000.

10. 2009 SCC OnLine Del 1647.

11. Patents Act, 1970.

12. Patents Act, 1970, S. 2.

13. Tabitha Cassidy, “US Jewelery Retailers Grow Online Sales 22.5% in 2020”,DigitalCommerce 360, accessible at <https://www.digitalcommerce360.com/article/jewelry-ecommerce-sales/>.

14. 2018 SCC OnLine Del 12215.

15. Michael Pearl, “Pandemic Creates E-commerce Risks for Jewelers”, accessible at <https://www.foason.com/2020/10/20/pandemic-creates-e-commerce-risks-for-jewelers/>

16. Nishtha Grover, “Valentine’s Day Scam: Fake Website Imitates Jewellery Brand, Phishes Couples”, accessible at <https://www.hindustantimes.com/lifestyle/festivals/valentines-day-scam-fake-website-imitates-jewellery-brandphishes-couples-101613124383427.html>.

17. Seth Adler, “Jewellery Chain Claire's Hit by e-Commerce Mageware Attack”, accessible at <https://www.cshub.com/attacks/articles/jewelry-chain-claires-hit-by-ecommerce-mageware-attack>.

18. Bureau of Indian Standards Act, 2016.

19. <http://bis.gov.in/wp-content/uploads/2020/01/Revised_Guidelines_02012020.pdf>.

20. Mandatory Hallmarking Order, dated 1-6-2021>, accessible at <https://bis.gov.in/index.php/hallmarkingoverview/mandatory-hallmarking-order/>

21. 1991 SCC OnLine US SC 46 : 113 L Ed 2d 358 : 499 US 340 (1991).

22. 98 Civ. 8697 (RWS) (SDNY 11-7-2001).

23. No. 00 Civ. 0202 (JGK) (SDNY 30-7-2003).

Interviews

   

Dr Vijay Kumar Singh is presently the Dean at UPES School of Law. He is a lawyer by training with LLM in business laws (gold medalist). He is a certified trainer on “managing disputes and difficult conversations on the board” by Centre for Effective Dispute Resolution (CEDR), as a Course Director, he has conducted training in commercial mediation and negotiation, IBC, NCLT, etc. for senior professionals. He has participated, organised and presented papers in a number of national and international seminars/conferences/workshops. He had been a faculty at Hidayatullah National Law University (HNLU) Raipur and has worked with the competition regulator (CCI) for 5 years. 

He has been interviewed by Aditi Sharma, EBC/SCC Online Student Ambassador who is currently pursuing law from UPES, Dehradun.

  1. To begin with, for the interest of our readers would you be kind enough to tell us something about yourself, your journey in the profession and your early years?

It is always a humbling experience when you are asked to introduce yourself or speak about your achievements. However, for the new readers I am a student of law currently discharging the responsibility of Professor and Dean at School of Law, UPES Dehradun.  My journey as a professional has seen many twists and turns and on each of these turns I learnt a lot which makes me what I am.  I had a humble background which necessitated me to work and support myself.  Being eldest in the family, I had many responsibilities as well.  At the hindsight, I think these made me a self-made person.  I had worked as a law clerk, a medical transcriptionist, and many would not know that I have even worked in a security company of my uncle in Nagpur.  I got my permanent teaching break with HNLU Raipur and a lot of honing of my professional skills happened with the Competition Commission of India (CCI) and Indian Institute of Corporate Affairs (IICA) in Delhi-NCR, before I joined UPES.

  1. What motivated you towards the field of legal education? Do you recall any specific episode of your life that made you choose law as a career?

During my college days of LLB 3 years course at Dr. Ambedkar College, Deekshabhoomi, I discovered that I enjoy teaching while I was making my first presentation to an audience at a national seminar on child rights.  For this seminar, I recollect interviewing the children at the streets and their conditions in Nagpur.  Later this thought got further strengthened with my PG at PG Department wherein I discharged the role of contributory lecturer along with my responsibility as a law clerk.  I had a brief stint of professional practice in Nagpur Bench of Bombay High Court and tribunals, but ultimately it was legal education which took over.  I had the privilege of teaching information technology law at a very young age to the judicial officers at JOTI as well as to a batch of air warriors immediately after my LLM. I would only say my professors and mentors have been very kind to provide me with best of the opportunities.  I was a BSc student and after my BSc I did medical transcription for a year to support myself.  While doing my job, I enrolled in the LLB course and after attending few classes of torts and Constitution, I made up my mind that I belong to law.

  1. You are a lawyer by training and a doctorate in law with gold medals in LLM and LLB examinations. Could you please enlighten our readers about your college life experience and how law schools have evolved over time compared to what it was 20 years back then?

I studied law through the traditional 3-year LLB format from Dr. Ambedkar College, Deekshabhoomi, Nagpur.  We were the privileged ones to get legal education under the precincts of Deekshabhoomi wherein Dr Ambedkar got his “diksha”.  Some of the teachers like Dr Hema Menon, Dr Varsha Deshpande, Dr Thrity Patel and Dr Gopal Sharma (late) seeded inside me a thought to excel in the legal field and in particular legal education.  There is a difference between the cohort you have in 3-year LLB and 5-year LLB.  In 3-year course, you generally have experienced people doing law.  Along with me there were many of my colleagues who were working professionals.  This provided a different approach to learning law.  In the present day context, the students decide doing law after 12th itself, which is in a way good, as they save one year which they can devote to PG (LLM) if they want to continue.  Standalone law schools with a specialised focus on law have definitely changed the way legal education used to be looked at.  It is no more a part-time education, it has evolved over the years as a separate stream in its own right.  Now Bar Council has come up with India International University of Legal Education and Research (IIULER) which is further raising the bar of legal education in India.  It is now going international.  Facility wise, I envy the young students and wish I could travel back in time to do law once again.

  1. Research paper publications are an integral part of a law student’s career but in the early stages, students often tend to indulge in other co-curricular activities. How important is it for a law student to realise the value of publications as you yourself have published and presented papers in several recognised journals/seminars/conferences/workshops, etc.?

We call it KSA framework i.e. knowledge, skills and attitude.  A law student shall not only earn the knowledge of legal subjects but acquire skills and attitude of a legal professional.  A law professional is a lifetime researcher, research skills shall flow like blood in the blood vessels of a law student.  Developing research temperament shall begin early in the career, it is like developing a habit to read, research and write.  The more you do, the more you enjoy and more skilful you become.  Nowadays law schools mandate project writing and research by students, this is towards the objective of building research culture.  Presenting papers at the conferences and seminar helps not only showcase your researching and oratory skills, but also to network, which is again very important.  I never missed an opportunity to attend conferences/seminars during my college days.  Though initial objective was to visit different places and meet different people, I realised over time how helpful it was in my career.  I became an associate member of Indian Society of International Law very early.  Many conferences sponsor students, I got one to present my paper at IIT Kanpur.  First time I travelled in AC 2 tier sponsored by the organisers for presenting my paper.  If you are interested in higher studies having good publications is an important key to success.  In short, I would say publishing in the life of a law student is a must, either it may be a journal, blog post, book chapter or even twitter posts.  Publish for staying relevant in the profession.  I also feel that any publication project forces you to update yourself, read new things and critically think, which keeps your mental faculty alive and going.  You may like to read more about my publications at <https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1113018>.

  1. Please tell us about your book titled Corporate Power to Corporate Crimes: Understanding Corporate Criminal Liability in India which is an enhancement of your PhD thesis and your journey to this accomplishment.

My book on corporate crimes is an updated version of my PhD thesis.  I had always in mind that your publications shall not be kept in a closet rather shall be made available to the interested readers at large.  Foreword to my book was written by Justice Sirpurkar and was launched at NLU Delhi with the blessings of Prof. Ranbir Singh and Prof. Srikrishna Dev Rao.  This book is a comprehensive literature on corporate criminal liability in Indian context and contains copious references for scholars who want to do further studies.  My work in this area allowed me to further advise on corporate frauds, ponzi schemes and securities fraud, which goes on unabated.  Update of the book is due which I intent to take up as my next project.  You can find more about the book at <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2973719>.

  1. With a humongous increase in the number of applicants for law entrance exams in India, the practice of law has become very competitive, and the competition for jobs has intensified in recent years, what advice would you like to give to the law enthusiasts who find it difficult to cope with such competition.

Law as a career options has indeed seen an increase over the last few years, especially given the multifarious opportunities a law graduate has, students are now opting it over plain engineering or plain graduation.  Though the competition is stiff for getting into the few top law schools, students ultimately are able to get admission in private institutions of repute, some of which are better than the last rung law schools which are yet to come up with their own infrastructure or have good permanent faculty.  However, competition is in every field, this is due to the population of youth we have.  While young population provides us with a demographic dividend, on other hand an unskilled and unguided dividend becomes a cost later.  My suggestion for the youngsters is that they shall not limit themselves in acquiring skills and attitude.  Standing out in competition is important and this can be done by thinking innovatively.  Youngsters should think about entrepreneurship as an option, where they become “job givers than job seekers”.  Serving rural India could be an option.  We still do not have good law professionals in hinterland.  There are plenty of opportunities, it is about crafting your own journey towards one of them.  Plan early and execute the action plan.

  1. What recommendations and guidance would you like to give to students who wish to make a career the same as yours i.e. academia and what do you think are the factors which should be taken into account before pursuing postgraduation (LLM)?

It is heartening to know that many youngsters are attracted to legal education as their career.  Life of an educator is a service and the job is that of a passion, if the mindset is to earn money, it is not the right profession.  Anyone interested in academia shall have a temperament of patience and empathy.  Continuous passion of learning and teaching and research is a must.  My suggestion would be to spend some time in industry/practice before one does their postgraduation.  Nowadays legal academicians are expected to know practical dimension of theory they teach.  Working with a law and policy firm could be a great asset.

  1. What is the significance of doing proper legal research and how should law students equip themselves with legal research skills? Also, what is your view on the concept of “exhaustion of a search” as many people are not aware of it?

I think I have already elaborated upon the importance of research in legal profession and especially for legal educators.  As regards status of legal research in India, I find still a lot has not changed and legal research takes a backseat, especially when you compare them with scientific and social science research.  Legal research as a domain has not progressed well.  The concept of “exhaustion of a search” is very important, as until you complete your review of literature you cannot find something new.  In my role as a PhD supervisor and during my guidance on projects, seminars and dissertations, I observe, the students often take the shortcut and do not consult the original literature.  Often, they do not read the original judgment, rather rely on the headnotes.  Headline research may not be the right approach to research.  In-depth understanding of literature already available is important to lay down a new theory or perspective.  It is also important to save oneself from falling into the traps of plagiarism.

  1. What is the most challenging part of your job as an academician and how do you overcome it?

Challenges make your work exciting and interesting.  As an academician there are few challenges than an administrator.  In fact I would say there are no challenges for a true academician, every challenge is a learning opportunity and also an opportunity to contribute something to the existing body of knowledge and academic practice.  In terms of students and scholars as well as introduction of technology has changed the role of an academician.  It is no more about providing information, rather it is about engaging in critical analysis and evolving tools to deal with the technological challenges posed by the information burst.

  1. Any advice you would like to give to the readers of the SCC blog? Or is there anything you would like to share with our readers?

SCC blog is a reputed blog in the area of tracking legal developments and also providing a platform for its readers to engage and network with professionals. As it tagline goes “bringing you the best analytical legal news”, readers of SCC blog shall enjoy the benefits of this platform by contributing and commenting on the threads and engage in a discussion with the author.  Also readers are encouraged to contribute to the platform as sustainability of a blog depends upon good content, analysis and engagement by its readers.  My best wishes to SCC blog for continued success.

Interviews

Harshit Sharma (NLUJ Batch of 2019) is a trainee Civil Judge-cum-Judicial Magistrate, First Class at Rajasthan Judicial Services. He is also a doctoral candidate PhD at NLU Jodhpur, who cleared UGC NET in December 2019.

He has been interviewed by Nisha Gupta, EBC/SCC Online Student Ambassador who is currently pursuing her law from NLU Jodhpur.

 

  1. Before I begin, the team at EBC-SCC Online extends warm greetings and welcomes you. It is indeed a privilege for me to interview you on behalf of the team for our readers. Before proceeding further with the interview, would you please take a moment to tell our readers about yourself?

First of all, I want to thank Nisha Gupta and EBC-SCC team for selecting me for this interview. It is a dream of every law student to feature at least once on SCC.

I completed my schooling from different Kendriya Vidyalayas across the State of Rajasthan owing to my father’s frequent transfers. In my school days, I was primarily inclined towards cricket. During this time, I represented the district and State cricket teams at under 14, 16, and 19 levels. Along with this, I had also played KVS nationals. So briefly, I was a kid who was studying just for the purpose of passing the exams.

A major shift in my academics came when I opted for humanities in my senior secondary. Initially, the purpose was to save time so that I could devote more hours to practising cricket. But with time I developed interest in the humanities subjects. To everyone’s surprise, (except my mother) I topped my region with 93.8 % in CBSE Senior Secondary Exams, 2013. After the result, I was determined to join Delhi University. But someone told my father about National Law Universities (NLUs). At that time we were in Jodhpur, so we came to know about NLU Jodhpur and its excellent academic and sports history. Apart from the stature of NLUs, the chief reason that convinced me to go for CLAT UG was the hope of securing admission into NLU Jodhpur so that I can be close to my mother.

For preparing for CLAT, I took a year’s drop. This drop served me a good opportunity of continuing cricket at a professional level. So, till the end of December 2013, I bunked the majority of coaching classes just to practise cricket more. Finally, by the end of December, I started my preparation seriously. The result was favourable to me and I got NLU Jodhpur in the first list. In July 2014 my journey in the field of law started. Meanwhile, I kept playing cricket at professional level and after participating in Rajasthan Colvin Shield Tournament I went for Ranji Trials.

 

  1. As a large percentage of our readers are currently students of law, would you please tell us about your law school life and what inspired you to pursue law?

As I already mentioned that my chief reason to pursue law was to being close to my mother by securing a rank in NLU Jodhpur. So initially there was no such gut feeling that field of law is ideal for me.

It took me around six months to get accustomed to the cosmopolitan environment in NLU Jodhpur. But as time passed, my seniors helped me a lot to familiarise myself with the nuances of the law and how to balance life so that I can manage sports and fitness along with academics. I am very grateful to my seniors who helped me accomplish whatever I wanted and equally grateful to my juniors who motivated me to give my best. My journey at NLU Jodhpur is a very wonderful one, and I cherish my memories a lot.

 The initial days at the college were very difficult, but I got accustomed to that environment and made a lot of friends as time passed. A good institution teaches you to develop a wholesome personality and work-life balance. Every day you need to cope up with the pressure; you need to complete the assignment within the given deadline. This is the beauty of a good college which not only imparts knowledge but also imparts essential qualities that are very necessary for your professional career, especially as you grow on the professional ladder.

I have always been a person who is heavily oriented towards sports and fitness. During my five years at NLU Jodhpur, I devoted the majority of my time towards playing sports and developing my fitness. Even in my internship breaks, I devoted hours and hours to sports just to excel at a professional level. In my last two years at college, I even captained the badminton team and won several laurels for the university. I was equally devoted towards cricket and remained Vice Captain from day one to the last day.

Moving our talk towards the academic side, I opted for Criminal Law (Hons.), in my fourth year. I completed college with an aggregate CGPA of 7.8 (2014-2019). In short, I am a law, sports, and fitness enthusiast.

 

  1. You are currently a trainee Civil Judge-cum-Judicial Magistrate, First Class at the Rajasthan Judicial Services, and you also achieved AIR 68 in the Delhi Judicial Services (2020). With these remarkable results, what would be your advice to those who are eyeing the State Judicial Services?

If you want to succeed in competitive exams, then you need to be very disciplined, regular and patient in your approach. These are the qualities that are required from a Judge and something that will help you to clear any exam which you target. Also, there is a need to refrain from using any kind of social media during the preparation phase. I deliberately kept with myself a very normal keypad phone so that I could devote most of the productive hours to my studies and simultaneously focus on my fitness and sports-related activities. The major problem is that our generation wastes a lot of time using social media. My humble advice to all of you is that, stop yourself from using social media for a year or two; believe me, when you come back, you will have a lot more followers than you expect.

My mode of preparation for these exams was self-study. Although self-study takes a good amount of time to understand the concepts compared to getting spoon-fed in the coaching institutions, but I think it helps you in the longer run because when you try to solve everything by yourself, your mind develops a habit to work a lot. But it differs from person to person whether he/she wants to prepare by doing self-study or want to join some coaching institution.

I started with reading Bare Acts of major laws and simultaneously read standard commentaries on the subject. Multiple revisions are the key to understand and remember this vast course. Once you have covered all the major subjects, you can shift your attention towards the minor subjects and local laws.

For prelims, you should try to solve as many multiple-choice questions as possible and once you clear prelims, you can make a specific strategy for mains. The strategy involves going through the past year papers, understanding the exam pattern, and trying to develop the answer writing habit. You will realise the value of good content and standard commentaries at this stage because if you have good content in your mind, you will not encounter problem while taking down that content on paper. After covering the course thoroughly, you can join some mock test series and give as many mocks as possible. This will help you to develop answer writing habit, and your mentor can focus on your weaker areas where you need to work. Every person has his own rules for success, and I hope during this journey you will also be able to find your own ways.

 

  1. Not only that, but you are also a doctoral candidate PhD at NLU Jodhpur, where you also did your undergraduate degree. You got AIR 15 in CLAT PG 2019 and then AIR 23 in CLAT PG 2020. Clearly you have some great tricks and tips up your sleeves for this highly competitive entrance test. Would you please share some with our readers?

There is no shortcut to prepare for CLAT PG. This exam tests your hard-earned knowledge of five years. No single book can be a substitute for what you have studied throughout this long duration of five years. So, from day one in college, I focused on core law subjects like Constitution, CrPC, CPC, IPC, contracts, evidence, family and property law, etc. In the fifth year especially in my last semester, I started to cover subjects specifically asked in CLAT PG. The majority of core law subjects were already covered in five years. What I did at this stage is that I started to prepare minor subjects (those having less weightage in CLAT like IPR, labour, tax, arbitration, company, etc.) along with revising the major subjects. Take sufficient margin of time so that you can revise the whole course at least twice.

Once you have completed the theory part you need to practise a lot of MCQs. You cannot afford to leave MCQ practice. They test your understanding as well as memory. Many times they show you how to pick the most suitable option out of the four. So, practise them a lot. Practise past years of CLAT and other LLM entrance like AILET, DU, ILI, etc. I devoted roughly around 6-8 hours of study to prepare every day. During the most productive hours I used to study theory and whenever I felt like sleeping, I simply practised MCQs. Based on this strategy I secured AIR 15 in CLAT PG 2019.

Since CLAT Consortium changed the pattern of the exam, I gave CLAT PG 2020 to test myself on the new pattern. I secured AIR 23 in CLAT PG 2020. The major difference that I found in the 2019 and 2020 CLAT PG examinations was the kind of questions asked and their uncertainty. Until 2019 they had a very predictable pattern in which they focused on the major areas of the laws, and the paper had two essay type questions as well.

According to me the paper pattern till 2019 was much easier. But in 2020, they made large scale changes in the pattern and started asking questions based on contemporary legal events. As of today, if you want to score a good rank in the CLAT PG examination, you need to be very much aware of the contemporary legal events, and that means not only what is going in the current scenario, but you should also be aware of the past of that particular topic, as well as the chain of events that is related to the topic. If possible, try to find out the major case laws related to that particular topic.

Now the strategy is to do a holistic study. For that, first, you need to cover the static part (that is, you need to be aware of the basic static concept), and then you need to make a building that consists of the contemporary developments surrounding that particular topic. For example, if we take the right to privacy, we need to start our study right from the 1950s when the first case related to privacy came before the Supreme Court and the subsequent cases till present. By studying in such a way, you will be able to learn everything related to a particular topic i.e. what was the stand of the court earlier, and the current position.

To help the aspirants in clearing the competitive law exams and to make them understand the new pattern of CLAT PG, I authored a book, that I released free of cost in PDF formatHarshit Sharma’s Legal Digest on Contemporary Legal Events.

 

  1. Anyone who had the pleasure of seeing you through law school would know that you were always up to something, especially leading NLUJ’s cricket and badminton team while acing all of your academic commitments. What are your thoughts on maintain a work-life balance through law school and in your professional life?

For me, fitness and sports are always the first priority. I always try to develop my lifestyle so that I should be able to give around 50-60% of my time for sports and fitness-related activity, which is something I am doing right from my school days. So balancing academics and sports life was not a big task for me, but it becomes very hectic to manage both these things on some days. To cope with such situations is something I learnt at the college level. But I believe that sports and fitness are part of my lifestyle, and I cannot live without them, so every time I make my schedule, I try to ensure that these activities get enough amount of time.

My typical schedule at NLU Jodhpur involved waking up right at 6 in the morning and stretching till 2 in the night. In this duration, I did my fitness-related activities. I then somehow managed to go to classes, studying there and then again coming back to the hostel room and going to the sports complex to prepare for the game (badminton and cricket). After all this, I tried to ensure that I should read at least some important topics from commentaries.

The main thing sports and fitness teaches you is having a strong will and patience to navigate difficult times. I think these are some intrinsic qualities that are required to clear any competitive exam. Although sports and fitness do not directly impact success in competitive exams, they do play an indirect role. Even in my professional life I am maintaining roughly the same kind of schedule i.e. exercising before going to the court and exercising after coming back from the court. If I do exercises, I feel so active and energetic throughout the day with a high level of concentration in the court. So, I am going to continue this forever because it helps me both physically and mentally a lot.

 

  1. It is safe to say that you are a very ambitious man. With your fingers already in so many pies, what would you say the future holds for you? What are you looking forward to next as a young professional?

Right now, I am living my dream; to be on the Bench. This is something I always wanted right from my college days. Apart from this, I cleared UGC NET in December 2019. So, I am eligible for Assistant Professorship as well. Clearing NET and my habit of regularly writing articles helped me to crack NLU Jodhpur’s prestigious PhD entrance test as well. As of now my aim is to learn as much as I can in court, so that I can impart justice and help people in a better manner. Moreover, my PhD will also be running simultaneously along with my judicial duties. So, during this hectic phase I will again be challenged to maintain my work-life balance.

 

  1. Keeping in mind your academic and professional background, what are your views on the concept of “exhaustion of a search”?

In my law career up until now, I have realised that there is no end of research. The more you go through different sources the more you will come to know about it. Every quality source gives us a different perspective and understanding of a particular topic. The field of law is an ocean, where everything is available. What we have to do is to keep on researching. And when I talk about research, I refer to quality sources of doing research which regularly update their database and keep a check on the information that they provide by doing multiple review processes, such as SCC Online. So the law students should remove this word “exhaustion” from their dictionaries when they decide to go for research, especially on the areas of law which are still uncertain and not clear. As far as settled position of law is concerned the research comes to an end when we are able to find an authority of Supreme Court on the point. So, the concept of exhaustion of search varies from topic to topic. Grey areas of law always demand unending search and a law student should be ready to dive deep into the ocean of law.

 

  1. Lastly, with the ever-changing world around us – which is now more unstable than ever – what would be your advice to young lawyers to help them achieve their goals with the same drive as you do?

Young students and aspirants, I want to say that you should enjoy your college because these are the days where you will make memories and learn lot of new things every day. Everything has a set time. Do not try to rush things. Before choosing any field you should explore, you should intern under different organisations and different advocates. Then only you will be able to make an informed choice. Refrain yourself from using social media and use this time to develop some new hobby or if you already have some hobby, try to pursue it regularly. Clearing competitive exams takes a lot of time and effort. It is a long cycle, and you need to have a mental balance, and mental balance comes only when you are physically healthy. Apart from knowledge, I think that intrinsic motivation helps you to achieve your desired goals. Motivation is something that helped me a lot to clear each and every exam in which I appeared. But if you are in rhythm, continuously studying, and in touch with academics, then there is no stopping you. In the end, I just want to say that make your own path, do not try to copy others. You will also be having your own rules for success. Have faith and confidence in your abilities.

Call For PapersLaw School News

The Board of Editors of Trade, Law and Development is pleased to invite original, unpublished manuscripts for publication in the Winter ’22 Issue of the Journal (Vol. 14, No. 2) in the form of ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’.

 

Founded in 2009, the philosophy of Trade, Law and Development has been to generate and sustain a constructive and democratic debate on emergent issues in world trade, international economic law,  cross-border investment, and development, among other inter-related aspects of international law, and to serve as a forum for the discussion and distribution of ideas. Towards these ends, we have published works by noted scholars such as WTO DDG Yonov F. Agah, Dr. Prof. Ernst Ulrich Petersmann, Prof. Steve Charnovitz, Prof. Petros Mavroidis, Prof. Mitsuo Matsuhita, Prof. Raj Bhala, Prof. Joel Trachtman, Gabrielle Marceau, Simon Lester, Prof. Bryan Mercurio, and Prof. M. Sornarajah among others. TL&D also has the distinction of being ranked the best journal in India across all fields of law and the 10th best journal in the field of world trade for seven consecutive years by Washington and Lee University, School of Law.

Manuscripts received by August 15, 2022, pertaining to any area within the purview of international economic law will be reviewed for publication in the Winter ’22 issue.

Manuscripts may be submitted via e-mail. For further information about the Journal, please click here. For submission guidelines, please click here.

In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.

Last Date For Submissions: 15 August, 2022

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: While allowing a couple to have their frozen embryo transferred to another hospital for infertility treatment, V.G. Arun, J., held that the purpose of the Assisted Reproductive Technology (Regulation) Act, 2021 is to prevent sale of human gametes, zygotes, and embryos; and not to prevent a couple from using their own embryo to develop it into a fetus. The Court noted,

“Close scrutiny of the provision shows that the intention is to prevent/restrict the sale etc. of human gametes, zygotes, and embryos.”

Factual Backdrop

The petitioners-couple were married in the year 2007 and even after fifteen years of marriage, the first petitioner was unable to conceive. Hence, the couple opted for infertility treatment at the Craft Hospital and Research Centre.

As part of the procedure, the first petitioner underwent an Oocytes Retrieval procedure on 02-09-2014. Out of the six eggs injected after retrieval, four fertilised. The embryos were then preserved at the Craft Hospital. However, the treatment was stopped in 2016 on the advice of the Chief Consultant, since the required wall thickness of the uterus could not be obtained.

Later on, the couple re-commenced their treatment at the Sabine Hospital and Research Centre Pvt. Ltd. where the doctors asked the couple to request for transfer of the frozen embryos from the Craft Hospital to the Sabine Hospital.

Commencement of the Assisted Reproductive Technology (Regulation) Act, 2021

During the interregnum, the Assisted Reproductive Technology (Regulation) Act, 2021 came into force on 20-01-2022, imposing restrictions with respect to matters connected to the Assisted Reproductive Technology. Therefore, the Craft Hospital refused to transfer the embryos stating that transfer of the embryos is not permissible after the introduction of the Act.

Analysis by the Court

The preamble of the Act, 2021 shows that the objective of the Act is the regulation and supervision of the assisted reproductive technology clinics and the assisted reproductive technology banks, prevention of misuse, safe and ethical practice of assisted reproductive technology services for addressing the issues of reproductive health where assisted reproductive technology is required for further use due to infertility, disease or social or medical concerns and for regulation and supervision of research and development and for matters connected therewith or incidental thereto.

Further, under Section 29, there is a prohibition against sale, transfer, or use of gametes, zygotes, and embryos, or any part thereof or information related thereto, directly or indirectly to any party within or outside India, except in the case of transfer of own gametes and embryos for personal use with the permission of the National Board.

The Court noted that the intention of the Act, 2021 is to prevent/restrict sale, etc. of human gametes, zygotes and embryos and in the case at hand, there is no such transfer since no donor or third party is involved and the embryos are that of the commissioning couple. Hence, the Court held that Section 29 does not interdict such transfer.

The Court expressed,

“Apart from the aspirations of the first petitioner to conceive and the second petitioner, to beget a child, the right of the life inside the embryo, which is kept frozen for the past 8 years, to develop into a fetus and be born, cannot be stultified by relying on a provision which has no application.”

Considering that the maximum period for which embryos can be preserved is ten years and eight years having elapsed already, the Court held that the petitioners would be put to undue prejudice and misery if the transfer is not permitted.

Conclusion and Directions

Resultantly, the Court concluded that the primary objective of the Act, 2021 is the regulation and supervision of the assisted reproductive technology clinics and banks, by preventing misuse and ensuring safe and ethical practice of assisted reproductive technology services. Holding that the Act, 2021 is not intended to create difficulties for persons opting for the assisted reproductive procedure, the Court issued the following interim directions:

  • Petitioners shall pay the amounts due to the Craft Hospital for preserving the embryos from 02-09-2014 onwards and on such payment being affected, the hospital shall forthwith permit the transfer of the embryos to the Sabine Hospital.

  • The Sabine Hospital shall collect the embryos and transfer it to its Assisted Reproductive Technology Bank and preserve the embryos with due care and protection.

  • The Sabine Hospital shall file an affidavit within five days affirming that it has all the requisite facilities envisaged under the Act.

The matter is posted after a week for further hearing.

[Rakhi Bose v. Union of India,2022 SCC OnLine Ker 3250, decided on 21-06-2022]


Advocates who appeared in this case :

Abraham Vakkanal, Senior Advocate along with M/S. Paul Abraham Vakkanal, Vineetha Susan Thomas & Rohith C., Advocates, for the Petitioners;

Assistant Solicitor General, for Union of India;

Government Pleader, for State of Kerala;

Sherin Varthese, Advocate, for Sabine Hospital and Research Centre Pvt. Ltd.


*Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a significant ruling regarding better evaluation of possibility for the accused to be reformed, the 3-judge Bench comprising Uday Umesh Lalit, S. Ravindra Bhat* and Bela. M. Trivedi, JJ., framed practical guidelines for the courts to adopt and implement for conviction of offenses that carry the possibility of the death sentence. 

The Court opined that the recent trend to call for a Probation Officer’s Report, is in fact a desperate attempt by the courts at the appellate stage, to obtain information on the accused. However, this too is too little, too late, and only offers a peek into the circumstances of the accused after conviction. Therefore, the Court made it mandatory for trial courts to call for psychiatric and psychological evaluation reports of the accused before awarding capital punishment. The Court observed,  

“The unfortunate reality is that in the absence of well-documented mitigating circumstances at the trial level, the aggravating circumstances seem far more compelling, or overwhelming, rendering the sentencing court prone to imposing the death penalty, on the basis of an incomplete, and hence, incorrect application of the Bachan Singhi test.” 

Factual Matrix  

The Court was hearing appeals filed by three death row convicts, Manoj, Rahul, and Neha, convicted under Section 302 of the Penal Code, 1860 (3 counts) by the judgment and orders of the First Additional Sessions Judge, Indore, and further confirmed by the M.P. High Court.   

The appellants were charged for the brutal, and grotesque killing of three generations of women (age group 22, 46, and 76 years) who were caught off-guard and severely physically assaulted, resulting in their death, in their own home. The common intention of the appellants was to rob the deceased, however, on receiving unexpected protest, the appellants had resorted to frenzied knife attacks to subdue the three deceased women.  

Holding that all the circumstances and the link connecting them were sufficiently established by the prosecution and proved beyond a reasonable doubt, the Supreme Court held all three accused guilty of the offenses under Section 397/34, 449/34, and 302/34 IPC. Additionally, Manoj and Rahul’s conviction under Section 25(1-B) (B) of the Arms Act, and Rahul’s conviction under Section 27 of the Arms Act, were upheld. 

Criminal Trial Guidelines  

In Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, in re, (2021) 10 SCC 598, the 3-judge Bench had approved a draft guideline regarding Inadequacies and Deficiencies in criminal trials which states as follows:   

“SUPPLY OF DOCUMENTS UNDER SECTIONS 173, 207 AND 208 CRPC  

Every Accused shall be supplied with statements of witness recorded under Sections 161 and 164 Cr.PC and a list of documents, material objects and exhibits seized during investigation and relied upon by the Investigating Officer (I.O) in accordance with Sections 207 and 208, CrPC”.  

Hence, the Court held that the prosecution should as a matter of rule comply with the above rule in all criminal trials, and furnish the list of statements, documents, material objects and exhibits which are not relied upon by the investigating officer. The Court directed that the presiding officers of courts in criminal trials shall ensure compliance with such rules. 

Death Penalty Framework and Principled Sentencing 

In the absence of an individual’s capacity to effectively bring forth mitigating factors, the Court had, in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 placed the burden of eliciting mitigating circumstances on the court, which has to consider them liberally and expansively, whereas the responsibility of providing material to show that the accused is beyond the scope of reform or rehabilitation, thereby unquestionably foreclosing the option of life imprisonment and making it is a fit case for imposition of death penalty, is one which falls squarely on the State.  

Again, in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, the court had articulated a two-step process to determine whether a case deserves the death sentence – “firstly, that the case belongs to the ‘rarest of rare’ category, and secondly, that the option of life imprisonment would simply not suffice.”  

Noting that despite over four decades since Bachan Singh’s case there has been little to no policy-driven change, towards formulating a scheme or system that elaborates how mitigating circumstances are to be collected, for the court’s consideration and that scarce information about the accused at the time of sentencing, severely disadvantages the process of considering mitigating circumstances, the Bench opined,  

“Therefore, ‘individualised, principled sentencing’ – based on both the crime and criminal, with consideration of whether reform or rehabilitation is achievable, and consequently whether the option of life imprisonment is unquestionably foreclosed – should be the only factor of ‘commonality’ that must be discernible from decisions relating to capital offences.”  

Practical Guidelines to Collect Mitigating Circumstances  

Opining that there is an urgent need to ensure that mitigating circumstances are considered at the trial stage, to avoid slipping into a retributive response to the brutality of the crime, as is noticeably the situation in a majority of cases reaching the appellate stage, the Court framed following practical guidelines for the courts to adopt and implement, till the legislature and executive, formulate a coherent framework through legislation: 

  1. The trial court must elicit information from the accused and the state, both.  
  2. The state, must – for an offence carrying capital punishment – at the appropriate stage, produce material which is preferably collected beforehand, before the Sessions Court disclosing psychiatric and psychological evaluation of the accused.  
  3. Next, the State, must in a time-bound manner, collect additional information pertaining to the accused. An illustrative, but not exhaustive list is as follows: 

a. Age 

b. Early family background (siblings, protection of parents, history of violence or neglect) 

c. Present family background (surviving family members, whether married, has children, etc.) 

d. Type and level of education 

e. Socio-economic background (including conditions of poverty or deprivation, if any) 

f. Criminal antecedents (details of offence and whether convicted, sentence served, if any) 

g. Income and the kind of employment (whether none, or temporary or permanent etc); 

h. Other factors such as history of unstable social behaviour, or mental or psychological ailment(s), alienation of the individual (with reasons, if any) etc. 

The Court clarified that the aforementioned information should mandatorily be available to the trial court, at the sentencing stage. Further, the Court directed that the accused too, should be given the same opportunity to produce evidence in rebuttal, towards establishing all mitigating circumstances and the courts should call for other related details in the form of a report from the relevant jail authorities, particularly information regarding the accused’s jail conduct and behaviour, work done (if any), activities the accused has involved themselves in, etc.   

Further, the Court directed that if the appeal is heard after a long hiatus from the trial court’s conviction or High Court’s confirmation – a fresh report from the jail authorities is recommended, for a more exact and complete understanding of the contemporaneous progress made by the accused, in the time elapsed. The Court emphasised,  

“The jail authorities must also include a fresh psychiatric and psychological report which will further evidence the reformative progress, and reveal post-conviction mental illness, if any.”  

Verdict 

In the backdrop of above, the Court opined that the fact that the accused had to repeatedly stab them, reveals that the said appellants were not familiar with wielding such a weapon, the young age of the accused at the time of the incident (35, 20, 22 respectively) and lack of criminal antecedents (except in the case of Manoj, who was allegedly involved in a case of petty theft) could not be lost sight of.  

Further, the prosecution case was silent on any real motive that may have instigated or moved the three accused to have pre-planned for the commission of murder – other than robbery, itself. Therefore, the Court noted,  

“It is unfortunate to note that both the trial Court, and High Court, failed to provide an effective sentencing hearing to the accused, at the relevant stage, which is a right under Section 235(2) CrPC recognised by this court in several cases.” 

Lastly, considering that the three accused had a record of overall good conduct in prison and display a probability of reform, the Court concluded that the option of life imprisonment was certainly not foreclosed and the imposition of the death sentence was unwarranted in the present case. Hence, the death sentence of all three accused was commuted to life imprisonment for a minimum term of 25 years.  

[Manoj v. State of M.P., 2022 SCC OnLine SC 677, decided on 20-05-2022] 


*Judgment by: Justice S. Ravindra Bhat 


Appearance by:  

For Appellants 1 and 2: Ms. Anjana Prakash, Senior Advocate  

For Appellant 3: Mr. Shri Singh, Advocate  

For the State of M.P.: Ms. Swarupama Chaturvedi, Additional Advocate General  


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: In an important case regarding environment Law the 3-judge Bench comprising L. Nageswara Rao, B. R. Gavai and Aniruddha Bose, JJ., revoked the approval granted by the Standing Committee of NBWL for doubling the railway line between Castlerock to Kulem. The Court remarked,  

“…in case of doubt, protection of environment would have precedence over the economic interest.” 

Factual Backdrop  

The instant case relates to the recommendation made by the National Board for Wildlife (NBWL) for wildlife clearance for doubling of 26 km stretch of the railway line in Western Ghats from Castlerock in Karnataka to Kulem in Goa passing through Bhagwan Mahaveer Wildlife Sanctuary, subject to fulfilling certain conditions.  

The proposal is for doubling the existing railway line on the land involving 120.875 hectares of land within protected area and 113.857 hectares of land in non-protected area reserved forest 7.018 hectares.  

The recommendation of NBWL was assailed by Goa Foundation before the Central Empowered Committee (CEC) for being in violation of the order passed by the Supreme Court on 05-10-2015. The Goa Foundation contended that the project involves diversion of significant area of forest land and sanctuary land and would entail further destruction of the Sanctuary/National Park and wildlife. Further, a large number of trees will have to be felled within the Bhagwan Mahaveer Wildlife Sanctuary and also, the integrity of the protected area and wildlife sanctuary would be severely affected. The Goa Foundation also contended before the CEC that assessment of proper impact on wildlife habitat and biodiversity was never carried out before NBWL approved the project. 

Pertinently, western ghats eco-system which is one of world’s eight hotspots, which spreads across 9 National Tiger Reserves, 20 National Parks and about 68 Wildlife Sanctuaries and the landscape forms one of the largest and most contiguous Protected Area networks in the country.  

CEC Recommendation  

The CEC recommended revocation of the permission granted by the Standing Committee for NBWL for doubling the railway line passing through the ecologically sensitive Western Ghats from Tinaighat-Castlerock in Karnataka to Kulem in Goa as such permission was in violation of the guidelines issued by the Ministry of Environment, Forest and Climate Change under the Wildlife Protection Act, 1972 and the order dated 05-10-2015. 

Noticing that the proposed railway doubling line is parallel to the existing railway line which passes through same forest along the same corridor, the CEC was of the opinion that the additional line is not likely to add either to the turnaround time of the train or loco or to the speed of the train. Therefore, the CEC recommended that the permission granted by the Standing Committee of the NBWL should be revoked, some of the reasons cited by the CEC were as following: 

  • The report of the Standing Committee of NBWL did not obtain any specific recommendation on mitigation measures from the Wildlife Institute of India, Dehradun before approving the proposal in respect of the Goa portion.  
  • The opening of the forest cover in the ecologically sensitive Western Ghats along the existing line is likely to invite light-demanding invasive weeds like Mikania species which colonise fast in the open area and spread to the nearby forest canopy and destroy the natural forest;  
  • The increased number of trains and wider openings through the ecologically sensitive Western Ghats for laying the track will further fragment the habitat and will make the movement of wildlife including arboreal animals across the railway line much more difficult and dangerous and is bound to result in high casualties amongst the wildlife;  
  • The railway line cuts across the most important animal corridor in the Western Ghat landscape between Karnataka and Maharashtra through the State of Goa and will be a serious impediment to the movement of long-ranging animals like tiger and elephant.  
  • The approval by NBWL to go ahead with the project has been granted in respect of Goa Portion without first obtaining the advice of NTCA as statutorily required under section 38 (0) of the Wild Life (Protection) Act, 1972;  

Analysis and Findings 

Relying on Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647, the Court stated that the ‘Precautionary Principle’ is an essential feature of the principle of ‘Sustainable Development’. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. The Court reiterated that in case of doubt, protection of the environment would have precedence over the economic interest. 

Available Alternatives  

Rejecting the Rail Vikas Nigam Ltd.’s (RVNL) contention that there is a likelihood that the requirement of coal and other raw materials would be doubled in the future, the Court, affirming the views taken by CEC stated that the requirement of coal can be met by utilising the Krishnapatnam port which is a viable alternative for transportation of coal.  

The Court opined that the CEC was right in its conclusion that the proposal for the doubling of the railway line should be revoked for the following reasons:  

  • At present the Konkan railway line gives excellent connectivity to Northern and Southern parts of India.  
  • Consequent to changes in government policy to discourage import of coal there will be reduction in the coal import which currently forms more than 90 % of goods traffic from Murmagoa Port;  
  • The estimate of projected increase in traffic from Karnataka to Goa furnished by the railways is not based on facts and is without any sound reasoning and as statistics shows mostly includes empty rakes returning to Goa; 
  • There are alternative ports like Krishnapatnam in east coast available with better rail connectivity for transport of goods to and from industrial belt of northern Karnataka and the capacity of the same is yet to be fully utilized.   
  • The connectivity between Goa and Karnataka is being strengthened/improved by way of 4 laning of NH-4A along the same route and by the development of new airport. 

“In view of the difficult terrain having sharp curves and gradient as high as 1:37 for the proposed project, any further construction would invite a great disaster in the sensitive areas of Western Ghats as well.”  

Further, RVNL has also proposed to construct under-passes/overbridges at identified locations of track crossings by wild animals to ensure safe crossings of tracks by animals, however, in its report, the CEC submitted that it was noticed during the site visit that it was not possible to construct any sort of under-passes at the said location. 

Directions to RVNL  

The Court noted that the landscape in which the railway line is proposed connects the three States of Goa, Karnataka, and Maharashtra, however, there was no viability report regarding Goa part. The Court expressed, 

“The Standing Committee of NBWL ought to have sought for a report from NTCA on the Goa part of the project before granting approval for the doubling of the railway line between Castlerock to Kulem in view of the fact that it is an important tiger corridor where instances of killing of tigers have been reported.”  

Affirming the recommendations made by the CEC regarding the necessity of taking into account the actual loss of the wildlife habitat by the construction activity for the doubling of the railway line for which heavy machinery would have to be moved and crusher units will have to be established for dumping construction material, the Court made following directs to RVNL:  

  • Conduct a detailed study on the viability of the project for the Goa part regarding impact of the proposed project on the biodiversity and ecological system of the protected areas under the wildlife sanctuary.  
  • Conduct an assessment of the impact which the project would have on the environment, especially in the protected area and wildlife sanctuary taking into account all the major factors such as the impact on the habitat, species, climate, temperature, etc. caused due to felling of trees (not only for the laying of railway tracks but also for the secondary works such as setting up machinery, disposal of waste, and putting in place various mitigation measures, etc.), movement of trains, human-wildlife interactions before considering the project.  
  • Provide a credible data, supported by an independent and credible source for the projections that are given by RVNL relating to the traffic between Karnataka and Goa project for the period 2022-2023 and 2030-2031 and an explanation regarding the projected traffic for the next 4-5 years which is required for the completion of the construction of the project.  
  • Conduct an independent and detailed assessment of the cumulative impact of the project for the entire stretch from Tinaighat to Kulem.  

Conclusion  

For the foregoing reasons, the Court upheld the conclusion of the CEC and revoked the approval granted by the Standing Committee of NBWL for doubling the railway line between Castlerock to Kulem.  

However, the Court granted RVNL liberty to carry out a detailed analysis on the impact of the proposed project on the biodiversity and ecology of the protected areas under the wildlife sanctuary and submit a fresh proposal to the Standing Committee of NBWL which shall be considered in accordance with law.  

[T.N. Godavarman Thirumulpad v. Union of India, 2022 SCC OnLine SC 583, decided on 09-05-2022]  


Kamini Sharma, Editorial Assistant has put this report together

SCC Part
Cases ReportedSupreme Court Cases

2022 SCC Volume 4 Part 4 encapsulates, a very interesting decision of the Supreme Court in Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497, wherein while criticizing the practise of granting cryptic bail in a casual manner, the Bench expressed,

“It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.”

Short Notes: 6


Bihar Public Works Contracts Disputes Arbitration Tribunal Act, 2008 (21 of 2008) — Ss. 9(1), 8 and 2(1) — Reference to Arbitration Tribunal: In view of S. 8 of the 2008 Act, if any of provisions of 2008 Act are in conflict with 1996 Act, latter shall prevail to the extent of conflict. When there is no arbitration clause in agreement between parties, provisions of 1996 Act will have no application. Therefore, reference to Arbitration Tribunal will be governed by 2008 Act. [Bihar Industrial Area Development Authority v. Rama Kant Singh, (2022) 4 SCC 489]

Civil Procedure Code, 1908 — S. 100 and Or. 9 R. 13 — Second appeal — Proper mode of disposal — Matters at large in second appeal — Ex parte decree: In this case, second appeal was filed against dismissal of first appeal for default on ground of delay, without any decision on merits in such first appeal. Only permissible course before High Court, held, was to consider validity of such first appellate order. High Court in second appeal, held, erred in treating the matter as an application under Or. 9 R. 13 and setting aside ex parte decree itself, and remanding suit to trial court for decision afresh on merit. [Mamtaz v. Gulsuma, (2022) 4 SCC 555]

Civil Procedure Code, 1908 — S. 25: In this case transfer petition was filed by wife and divorce proceedings were initiated by respondent husband in the Family Court at Chennai 600 km away from Hyderabad, where wife resides. Application of wife seeking transfer of proceedings to Hyderabad, allowed. [Pooja Rathod v. Tarun Rathod, (2022) 4 SCC 514]

Constitution of India — Art. 226 — Writ appeal — Proper mode of disposal — Connected/Related matters — Consolidated disposal — Challenge to land acquisition: All appeals relating to the same acquisition notifications, held, should have been heard and decided together. Hence, this appeal was remanded for decision afresh, to be heard together with the appeals relating to the same acquisition notifications. [M.P. Housing Board v. Satish Kumar Batra, (2022) 4 SCC 559]

Constitution of India — Arts. 25, 21, 14 and 19 — COVID-19 Pandemic — Funeral rights of Parsi Zoroastrian community: In this case, due to concern over public health and safety while preserving the sanctity of the Zoroastrian faith, funeral rights allowed under amicably agreed upon protocol and standard operating procedure (SOP) permitting the claim of Parsi Zoroastrian community to conduct their funeral rights in the Dokhma (Tower of Silence) while complying with the safety standards required during COVID-19 Pandemic. [Surat Parsi Panchayat Board v. Union of India, (2022) 4 SCC 534]

Criminal Procedure Code, 1973 — S. 439 — Grant of bail under S. 439 — Necessity of recording reasons — Extent to which reasons are required in a bail order — Principles clarified: Grant of bail under S. 439 though being a discretionary order, but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course and, thus, order for bail bereft of any cogent reason cannot be sustained. Therefore, prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case and, thus, serious nature of accusations and facts having a bearing in the case cannot be ignored, particularly, when the accusations may not be false, frivolous or vexatious in nature but supported by adequate material brought on record so as to enable a court to arrive at a prima facie conclusion. [Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497]

Criminal Procedure Code, 1973 — S. 482 — Inherent powers under — Power of quashing of criminal proceedings — When should be exercised: Power of quashing of criminal proceedings should be exercised very sparingly and with circumspection and that too in rarest of rare cases and it is not justified for Court in embarking upon enquiry as to reliability or genuineness or otherwise of allegations made in FIR or complaint. Inherent powers do not confer any arbitrary jurisdiction on Court to act according to its whims and fancies. [Shafiya Khan v. State of U.P., (2022) 4 SCC 549]

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 — Ss. 7-A and 14-B — Failure to deposit contribution — Imposition of damages for delayed payment: Breach of civil obligations/liabilities committed by employer is sufficient for imposition of penalty or damages. There is no further requirement on authority concerned to examine existence of element of actus reus/mens rea or to examine issue of justification, for imposing damages. [Horticulture Experiment Station v. Provident Fund Organization, (2022) 4 SCC 516]

Insolvency and Bankruptcy Code, 2016 — S. 12-A r/w Ss. 9 and 25(2)(e): Withdrawal of CIRP proceedings, when permissible and proper, explained. [K.N. Rajakumar v. V. Nagarajan, (2022) 4 SCC 617]

Insurance — Contract of Insurance/Policy/Terms/Cover Note — Duties of parties/Uberrima Fides/Uberrimae Fidei/Claim to Insurance money/Insurer’s liability — Obligation to disclose material facts — Mutuality of: Principle of uberrimae fidei i.e. principle of utmost good faith, held, imposes meaningful reciprocal duties owed by the insured to the insurer and vice versa. That is to say, just as the insured has a duty to disclose all material facts, the insurer must also inform the insured about the terms and conditions of the policy that is going to be issued to him and must strictly conform to the statements in the proposal form or prospectus, or those made through his agents. [Manmohan Nanda v. United India Assurance Co. Ltd., (2022) 4 SCC 582]

Insurance — Contract of Insurance/Policy/Terms/Cover Note — Exemption/Exclusion/Restriction/Limitation/Forfeiture Clauses/Negative Covenants: Law surveyed in detail and general principles, summarized regarding when exemption clause may be given effect to, and when may be negated or not given effect to. [Shivram Chandra Jagarnath Cold Storage v. New India Assurance Co. Ltd., (2022) 4 SCC 539]

Insurance — General Insurance — Theft, Burglary and Property Loss Insurance: Delay in informing theft to insurer i.e. alleged violation of a condition of insurance contract in this regard is insufficient to deny claim of insured when FIR regarding theft lodged and also accused arrested and charge-sheeted i.e. when the claim is otherwise genuine and not disputed to be genuine by insurer. [Jaina Construction Co. v. Oriental Insurance Co. Ltd., (2022) 4 SCC 527]

Penal Code, 1860 — S. 34 — Applicability of — When attracted: To attract applicability of S. 34 prosecution is under obligation to establish that there existed common intention which requires prearranged plan. Before a person can be vicariously convicted for criminal act of another, act must have been done in furtherance of common intention of all. In absence of prearranged plan and thus a common intention, even if several persons simultaneously attack the man each one of them would be individually liable for whatever injury he caused and none could be vicariously convicted for act of any or the other. Thus, it is necessary either to have direct proof of prior concert or proof of circumstances which necessarily lead to that inference and incriminating facts must be incompatible with innocence of accused and incapable of explanation or any other reasonable hypothesis. [Indrapal Singh v. State of U.P., (2022) 4 SCC 631]

Prevention of Corruption Act, 1988 — S. 7 — Offence under — When established: Offence under S. 7 relating to public servants taking bribe requires proof of: (a) demand of illegal gratification, and (b) acceptance thereof. Proof of demand of bribe by public servant and its acceptance by him, both are a sine qua non for establishing offence under S. 7. [K. Shanthamma v. State of Telangana, (2022) 4 SCC 574]

Service Law — Promotion — Entitlement to: In this case appellants were promoted as Assistant Director (Official Language) on ad hoc/officiating basis during years 1993-95 and 2000. High Court by impugned judgment recalled judgment dt. 4-11-2011 and affirmed order of Tribunal directing promotion of appellants in accordance with the 2002 Rules on ground that in Mishri Lal, (2011) 14 SCC 739 it was held that the 2002 Rules were not implemented. Said order was held unsustainable. [Medini C. v. BSNL, (2022) 4 SCC 562]

Service Law — Retirement/Superannuation — Retiral benefits — Delay in payment — Entitlement to interest: Where there is delay in paying retirement dues to retired employee, for no fault of his, he is entitled to interest on delayed payment. [A. Selvaraj v. C.B.M. College, (2022) 4 SCC 627]

SCC Part
Cases ReportedSupreme Court Cases

2022 SCC Volume 4 Part 3, consists a very pertinent decision of the Supreme Court wherein it was held  that it cannot be said that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property as such interpretation will be against the provisions Section 83(1) of Act.Read the detailed Judgemnt here:  Rashid Wali Beg v. Farid Pindari, (2022) 4 SCC 414]

Short Notes: 3


Arbitration and Conciliation Act, 1996 — Ss. 34 and 5: Award on issues/matters beyond the scope of the arbitration clause which was invoked, as the issues/matters in question pertained to another distinct agreement, arbitration clause in which latter agreement was not invoked, is not valid. Award on lease rental and lease duration i.e pertaining to lease agreement is not permissible, when arbitration has been invoked under dealership agreement. [Indian Oil Corpn. Ltd. v. Shree Ganesh Petroleum, (2022) 4 SCC 463]

Central Goods and Services Tax Act, 2017 — Ss. 39, 16, 49(2) and 59 — Circular No. 26/26/2017-GST dt. 29-12-2017: Rectification of return, on the premise of Form GSTR-2A being non-operational at the relevant time is not permissible. [Union of India v. Bharti Airtel Ltd., (2022) 4 SCC 328]

Criminal Procedure Code, 1973 — S. 482 — Prayer for directions for conduct of impartial investigation: Interim order(s) cannot be passed by High Court, particularly without hearing the affected part(ies). [OLX India B.V. v. State of Haryana, (2022) 4 SCC 390]

Evidence Act, 1872 — Ss. 65-A and 65-B: Copies of electronic evidence are sufficient when duly certified as per S. 65-B. The fact that original electronic evidence was one of the exhibits of the evidence on record, but not played in court, and only the certified copies thereof were played in court, is of no effect. [Taqdir v. State of Haryana, (2022) 4 SCC 321]

Government Contracts and Tenders — Formation of Government Contract — Enlistment/Blacklisting/Downgrading of Contractor/Tenderer — Blacklisting/Debarment: Period of blacklisting, further held, has to be proportionate to nature of offence(s) committed by erring contractor. Tentative decision to blacklist erring suppliers/contractors taken after assessing available materials prior to issuance of show-cause notice cannot be treated as pre-determined decision. Order of blacklisting passed after providing opportunity of hearing thereafter, held, cannot be called as violating principles of natural justice. [State of Odisha v. Panda Infraproject Ltd., (2022) 4 SCC 393]

Service Law — Dismissal/Discharge — Grounds for dismissal/discharge — Dismissal — Proportionality: As allegations of fraud committed by employee concerned on employer Bank were fully established, superannuation of employee concerned in the meantime is not relevant. [United Bank of India v. Bachan Prasad Lall, (2022) 4 SCC 358]

Service Law — Penalty/Punishment — Proportionality/Quantum of punishment: Substitution of punishment of removal with compulsory retirement, when warranted, explained. [Umesh Kumar Pahwa v. Uttarakhand Gramin Bank, (2022) 4 SCC 385]

Service Law — Pension — Entitlement to pension — Vested/accrued rights — Divesting of vested/accrued rights with retrospective effect — Permissibility: Amendment having retrospective operation divesting employee of benefit already granted to him under existing Rules, violative of Arts. 14 and 16 of the Constitution. Employees who had opted for Pension Scheme had vested/accrued rights and any amendment to contrary made with retrospective effect taking away vested right accrued to employee under existing Rules was impermissible. Further held, non-availability of financial resources cannot be justification to take away vested right accrued to employees and that too which was for their socio-economic security. Pension is not a bounty and it is the duty of appellant to make funds available to protect vested rights of employees accrued in their favour. Punjab State Coop. [Agricultural Development Bank Ltd. v. Coop. Societies, (2022) 4 SCC 363]

Service Law — Pension — Qualifying period/service — Parity: Though it is settled law that the Rules applicable in matters of determination of pension are those which are in force at the time of retirement, but, held, that does not mean that employer can depart from this principle arbitrarily and confer benefit of Rules in force at the time of appointment, for computation of pension upon one employee and deny the same benefit to another employee who is similarly situated. [G. Sadasivan Nair v. Cochin University of Science & Technology, (2022) 4 SCC 404]

Wakf Act, 1995 — Ss. 85 and 83 (as amended by Amendment Act 27 of 2013) and Ss. 86 to 90, 93, 94(1), 4 to 7, 51 and 52 — Wakf Tribunal — Jurisdiction of Wakf Tribunal: Proper forum for suit for permanent injunction in respect of wakf property, and power to issue temporary injunctions and whether subject property is disputed to be wakf property, or, admitted to be wakf property, is Wakf Tribunal and not civil court. However, examination of remedies under the Wakf Act, 1995 indicates that jurisdiction of civil court is not totally excluded. The 1995 Act makes a specific reference to court/civil court also in certain places. Ss. 86, 90 and 93 make specific reference to “court”. S. 68(6) goes a step further by making a reference to “civil court”. Thus, on a cumulative reading of various provisions of the 1995 Act, held, bar of jurisdiction of civil court under the 1995 Act is not total and omnipotent and that there may be cases which may still be entertained by civil courts. Further held, question of bar of jurisdiction of the civil court, has been left for judicial determination. [Rashid Wali Beg v. Farid Pindari, (2022) 4 SCC 414]

SCC Part
Cases ReportedSupreme Court Cases

In 2022 SCC Volume 4 Part 2, read this very pertinent matter of the Supreme Court wherein it was decided whether culpable homicide tantamounts to murder or not. Read the full Judgment here: [State of Uttarakhand v. Sachendra Singh Rawat, (2022) 4 SCC 227]

Short Notes: 4


Arbitration and Conciliation Act, 1996 — S. 34 — Delay beyond the period of 3 months plus 30 days: If a petition is filed under S. 34 beyond the prescribed period of three months, the Court has the discretion to condone the delay only to an extent of thirty days, provided sufficient cause is shown. Further, S. 5 of the Limitation Act is not applicable to condone the delay beyond the period prescribed under S. 34(3). [Mahindra & Mahindra Financial Services Ltd. v. Maheshbhai Tinabhai Rathod, (2022) 4 SCC 162]

Arbitration and Conciliation Act, 1996 — S. 34: Amended S. 34, i.e. as amended by Arbitration and Conciliation (Amendment) Act, 2015 is not applicable to S. 34 proceedings commenced prior to 23-10-2015. [Ratnam Sudesh Iyer v. Jackie Kakubhai Shroff, (2022) 4 SCC 206]

Armed Forces — Penalty/Punishment — Substitution of punishment of dismissal with compulsory retirement: Due to peculiar circumstances of the case, punishment of dismissal substituted with compulsory retirement. [Brijesh Chandra Dwivedi v. Sanya Sahayak, (2022) 4 SCC 189]

Constitution of India — Art. 227 — Supervisory jurisdiction of High Court: Principles summarised regarding nature and scope of supervisory jurisdiction of High Court. [Garment Craft v. Prakash Chand Goel, (2022) 4 SCC 181]

Constitution of India — Arts. 341 and 342 — SCs/STs: Implication of “for the purposes of this Constitution … in relation to that State”, is that benefit of status as SC/ST or OBC is granted only in relation to a State on the basis of ordinary and permanent residence of the castes/classes of persons concerned in that State. Benefit of status of SC/ST or OBC in one State is thus not automatically nor ordinarily transferable to another State upon migration. [Bhadar Ram v. Jassa Ram, (2022) 4 SCC 259]

Consumer Protection Act, 1986 — S. 13 — Delay in filing written statement, beyond the period of 15 days in addition to 30: The 5-Judge Bench in Hilli case did not make a distinction between applications for condonation which had been decided and those which were pending on the date of the decision. Thus, applications for condonation of delay that were pending or decided before 4-3-2020 would both equally be entitled to the benefit of the position in Mampee, (2021) 3 SCC 673 which directed Consumer Fora to render a decision on merits. [Diamond Exports v. United India Insurance Co. Ltd., (2022) 4 SCC 169]

Education Law — Professional Colleges/Education — Medical and Dental Colleges — Reservation of seats/Quota/Exemption/Priority in Medical/Dental Institutions — Criteria for reservation: In this case, it was held that as per reservation scheme of UT, first priority was given to candidates whose parents were domiciles of UTs and candidate had studied in institutions of the UTs for specified classes, that is, 8 to 12. But petitioner had studied only primary classes in the UTs, due to which High Court by a well-reasoned judgment denied relief to her. Decision of High Court, affirmed, and not interfered with. In another judgment, relief had been given but that was because of the peculiar circumstances of that case and because the candidate had studied from Classes 9 to 12 in the UTs. [Muskan Samir Modasia v. Union of India, (2022) 4 SCC 225]

Environment Law — General Principles of Environmental Law — Precautionary Principle/Sustainable Development/Inter-Generational Equity Principle — Delhi Metro — Providing effective transportation vis-à-vis ecology — Phase IV of MRTS Project: Earlier phases of project had already resulted in loss of vegetation as well as flora and fauna in certain areas. Phase IV of MRTS Project may be a further threat to the ecology of NCT of Delhi/NCR. Effectuation of precautionary principle as well as principle of sustainable development, by ensuring citizens’ participation in the preservation of the environment and ecology, emphasized. Directions issued regarding role, involvement and collective responsibility of civil society without ignoring importance of governmental responsibility for reafforestation. [T.N. Godavarman Thirumulpad, In re v. Union of India, (2022) 4 SCC 289]

Hindu Succession Act, 1956 — Ss. 14(1) & (2) and S. 30: A restricted estate can be created by a will in favour of a female, so long as it is a new and independent right and does not amount to the recognition of a pre-existing right as per the principles laid down in V. Tulasamma, (1977) 3 SCC 99. Objective of S. 14(1) is to create an absolute interest in case of a limited interest of wife where such limited estate owes its origin to the law as it stood then. Objective cannot be that a Hindu male who owned self-acquired property is unable to execute a will giving a limited estate to a wife if all other aspects including maintenance are taken care of. If it is held so it would imply that if wife is disinherited under will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of intent of testator. That cannot be objective of S. 14(1). [Jogi Ram v. Suresh Kumar, (2022) 4 SCC 274]

Income Tax Act, 1961 — S. 40(a)(ii-b) (as inserted by Finance Act, 17 of 2013) — Income chargeable under head “profits and gains of business or profession” — Amount levied exclusively on State-owned undertaking: Claim as deduction in books of State-owned undertaking is not permissible and same is liable to income tax. Gallonage fee, licence fee and shop rental (kist), held, are in the nature of fees imposed under Abkari Act of 1902. These are fees payable for licences granted in favour of State-owned undertakings. Aspect of “exclusivity” under S. 40(a)(ii-b), held, has to be viewed from nature of undertaking on which levy is imposed and not on number of undertakings on which levy is imposed. Hence, held, S. 40(a)(ii-b) applicable to all of the abovesaid fees. [Kerala State Beverages Manufacturing & Marketing Corpn. Ltd. v. CIT, (2022) 4 SCC 240]

Penal Code, 1860 — Ss. 299 and 300 — Whether culpable homicide tantamounts to murder or not: Principles reiterated regarding how to determine whether culpable homicide tantamounts to murder or not. [State of Uttarakhand v. Sachendra Singh Rawat, (2022) 4 SCC 227] 

Public Sector, Government Companies and Statutory Corporations — Employment and Service matters — Pension: Employees of autonomous bodies cannot claim, as a matter of right, same service benefits on a par with government employees merely because such autonomous bodies might have adopted Government Service Rules and/or in Governing Council there may be representative of Government and/or merely because such institution is funded by State/Central Government, more so, when such employees are governed by their own Service Rules and service conditions. State Government and autonomous Board/body cannot be put on a par. [State of Maharashtra v. Bhagwan, (2022) 4 SCC 193] 

Railways and Metros — Financing, Construction and Operation of Projects — Phase IV of Delhi Metro Project: Duties, liabilities and obligations of State Government and Central Government, regarding bearing of operational loss, repayment of loan and sharing of land cost, clarified. [M.C. Mehta v. Union of India, (2022) 4 SCC 317]

Case BriefsHigh Courts

Delhi High Court: Stating that, cases under Section 376 of Penal Code, 1860 should not be quashed and should not be taken as a crime against the society at large, Swarana Kanta Sharma, J., expressed that, in peculiar circumstances, where the complainant states that her future depends on quashing of the FIR and adding that the rape was not committed upon her, it would be in the interest of justice to quash the FIR.

The instant petition was filed for quashing of an FIR registered for offences punishable under Sections 376/377/498-A of Penal Code, 1860 read with Section 34 IPC.

In the present matrimonial dispute, it was noted that a charge sheet had been filed under Section 376 of the Penal Code, 1860, however, in her statement under Section 164 CrPC, the complainant had stated that only an attempt to rape had been made by her father-in-law and the charges were not yet framed by the trial Court.

The complainant gave her statement which she had given under Section 164 CrPC and on a query made by this Court, the complainant who was present in person stated that she has entered into a compromise out of her own free will and without any pressure, coercion or threat. Further, she stated that she had no objection if the FIR was quashed.

High Court expressed that,

“…any case coming to an end is a welcome step at it decreases the pendency of the Courts, more so, in matrimonial offences quashing is welcome as it shows that parties have decided to put an end to the lis as well as to the misery they undergo due to a matrimonial case pending between them.”

Further, the Bench added that, the fact that now-as-days Sections 376 and 354 of the Penal Code, 1860 are being used along with Section 498-A IPC, which later are compromised and are brought to this Court for quashing, needs to be curbed.

The Court appreciated the stand taken by the complainant and her wish to move in life as her future depended on the settlement of the matrimonial dispute and quashing of the present FIR. In case the FIR is not quashed in this case, the entire settlement between the parties will come to an end.

Lastly, the High Court held that “Court wishes that the compromise would have taken place much earlier, however, through this order let a message be sent to the society at large that compromise is the best way possible to settle disputes and the sooner the better.”

Therefore, the FIR was quashed. [Arshad Ahmad v. State NCT of Delhi, 2022 SCC OnLine Del 1736, decided on 2-6-2022]


Advocates before the Court:

For the petitioners:

Mr Arun Bhardwaj, Senior Advocate with Mr Abhishek Sharma and Mr Rahul Sharma, Advocates.

For the respondents:

Mr Ranbir S. Kundu, ASC for State with Mr Mukul Dagar, Ms Pooja and Mr Agniwesh Singh, Advocates along with SI Jyoti Phogal, PS Mehrauli.

Mr Hilal Haider and Mr Butul Khan, Advocates for R-2 with complainant in person.

Case BriefsDistrict Court

Rohini Courts, Delhi: Jagdish Kumar, ASJ: Special FTC (North), grants bail to an accused alleged of making physical relationship and then capturing nude pictures and circulating the same.

It was submitted that the applicant had been implicated in the present case with the malicious intention of the police official and he never indulged in any criminal case.

Allegations were that the accused took the prosecutrix to a hotel for pay and made a physical relationship for the first time, in fact, he also captured nude pictures and made viral the same and started forcing her to have physical relations with his friend.

Further, the Additional PP came to the residence of the prosecutrix as she was residing with her friend and made a physical relationship with her, additionally, there were allegations that he criminally intimidated the prosecutrix to kill her if she disclosed the incident to anyone.

Analysis and Decision

Court noted that no date, month or year was mentioned by the prosecutrix as to when the alleged offence was committed upon her. Further, the applicant/accused was not previously involved in any other criminal case.

In view of the above-stated facts and circumstances of the case, the applicant/accused was admitted on bail.

Bench directed that the accused/applicant shall not contact or try to contact either complainant or any other witness directly/indirectly. [State v. Rahul Kumar Jha, 2022 SCC OnLine Dis Crt (Del) 24, decided on 19-5-2022]


Advocates before the Court:

Shiv Kumar, Substitute Addl. PP for the State

IO W/SI Sushil Yadav in person.

Victim/prosecutrix in person with counsel U. Hashmi and Geeta Verma, Counsel for DCW.

Mr Shahid Tasleen Uzbek, Translator in person.

Accused is produced from JC.

Pradeep Khatri, Counsel for the accused.

Case BriefsHigh Courts

Delhi High Court: In a case wherein a police officer got injured due to an attack by an illegal weapon out of the police station, Talwant Singh, J., expressed that, Police Post is a place where people go to lodge complaints of the disputes amongst them, and it is not a place where the public servants are supposed to be attacked.

In the present case, the petitioner sought bail in a case filed under Sections 186, 353, 307, 147, 148, 149, 379 and 34 of the Penal Code, 1860.

Further, it was submitted that the petitioner was arrested in a false and fabricated case.

Factual Background


The complainant was present in Police Post Inderlok when one person, Kale met him in the said Police Post and made complaint against Mohsin, Salman, Naved, etc., about the loot in his shop and Kale being beaten up by these persons. Further, one Sadeqin was brought to the police Post, where SI Pankaj Thakran made some formal enquiry and, in the meantime, Mohsin, Naved, etc., reached the police post and started shouting in abusive language; SI Pankaj Thakran tried to calm the, but all in vain.

It was stated that the petitioner had pistol in his hand and others were armed with Lathi/Dande. The said persons were pushed by SI Thakran alongwith the help of other police officials, but they came back again pelting stones and then SI Pankaj Thakran fired with his government pistol and during that period applicant also fired from his pistol.

Thereafter, SI Pankaj Thakran took out an AK-47 rifle lying in his office and seeing this, all accused persons fled away from there and at that time another shot was fired, after which SI Pankaj Thakran was admitted to hospital.

On the statement of SI, the present accused was arrested and since then he is behind the bars.

Analysis and Decision


The present case was the one where a public servant was the complainant, whose place of posting i.e. the Police Post was attacked by a group of people, who were armed with Dandas, Lathis and the present petitioner was holding a fire arm in his hand.

High Court expressed that,

The Police Post is a place where people go to lodge complaints of the disputes amongst them, and it is not a place where the public servants are supposed to be attacked with firearms, Dandas and Lathis or by pelting stones on them.

The Bench noted that there was a previous history of the petitioner being involved in criminal cases and the police officials were doing their duty.

Additionally, the Court stated that, the possibility of the petitioner indulging in threatening the witnesses or indulging in the same crime again and fleeing from justice cannot be ruled out.

In High Court’s opinion, the present case was not fit for bail even on the ground of parity as the role assigned to the present petitioner was quite different from his other associates. [Naved v. State, 2022 SCC OnLine Del 1759, decided on 11-5-2022]


Advocates before the Court:

For the petitioner: Juned Alam, Advocate.

For the respondent: Tarang Srivastava, APP with SI Suman Prasad, PS Sarai Rohilla.