public interest litigation

Cyril Amarchand MangaldasExperts Corner

Introduction

Hollywood films such as A Civil Action and Erin Brockovich brought the concept of ‘class action’ into our everyday conversation. The true story of a struggling single mum-turned-hero, Erin Brockovich filed a lawsuit on behalf of residents of a small California town against a large company. The class action that ensued claimed that the company’s systematic disposal of waste chromium contaminated the groundwater that supplied municipal wells, resulting in hundreds of the town’s residents falling seriously ill. The lawsuit was ultimately settled at about USD 333 million (in 1996), and the film (released in 2000) made the protagonist a hero.

For years, the United States of America has been seen as being the foremost bastion of class action as it has strong tort laws, followed by Canada and some European countries (including the United Kingdom), which have also been putting in place collective redressal mechanisms. Indeed, a class action was filed in late 2019, before a German Court on behalf of the entire German population of male piglets as plaintiffs.[1] Whether the case will be admitted as maintainable with animals as named plaintiffs, remains to be seen.

Shareholder activism has been on the rise globally. The shareholder of today is more involved (or evolved!), than before, and is no mute spectator to the business of the company and acts of its management. It is no longer restricted to raising a voice against oppression by majority shareholder(s), or mismanagement of a company, but includes concerns in relation to business decisions, social and environmental issues, strategic management, brand value, reputation, etc. It is now par for the course, for shareholders to demand answers or specific action, including change or compliance with more stringent corporate governance policies. Activism can take several forms, including proxy shareholder battles, publicity campaigns, shareholder resolutions, etc. This has led to a more dynamic interaction between ordinary shareholders and management/promoter groups.

In India, the development of shareholder activism has been slow but constant, from the more passive past to the more active present. The recent spate of financial frauds and scams have also played their part. Investors, shareholders, and even consumers demand transparency and accountability; and are not afraid to demand it.

Enter the long-awaited Companies Act, 2013 (which replaced the Companies Act, 1956), under which the newly-introduced provisions (notified on June 1, 2016, but yet to be used effectively) enable class action to be initiated against a company and its management in certain circumstances. Aimed at investor protection and enhanced accountability,[2] the 2013 Act was touted by the Government as being a historic measure, that would give impetus to growth and bring about transparency.

The key advantage of class action is that individual complainants who may not have the resources to initiate individual proceedings may join together as a class, benefitting from economies of scale and costs.  Efficiency of the judicial system may also be increased as there is no repetition of witnesses and arguments.

The concept of class action is not new to India, however, as some statutory provisions enable an action to be brought by a few in the name of and for the benefit of many. We briefly consider some of these below.

Representative Actions

The Code of Civil Procedure, 1908, enables the plaintiffs to collectively bring a claim to court in a representative capacity for the benefit of a group or class of persons. It thus carves out an exception to the general rule that all persons interested in a suit should be made parties, and enables a group or class of persons with common interest or grievance in a matter to bring an action through only a few named representative plaintiffs.[3] Similar provisions enable a group of representative defendants to enter a defence on behalf of the entire group.

A representative action needs the permission of the court to proceed. Notice must be given to all persons interested, so that any person on whose behalf, or for whose benefit, the suit is instituted (or defended), may apply to be made a party, particularly since any decree passed, will be binding on all members of the class.

Public Interest Litigation

Public interest litigations, or ‘PILs’ filed by a few petitioners have become ubiquitous in India.  PILs are often filed for the enforcement of fundamental rights under the Constitution of India, of a group of persons or the general public, in public interest.[4]  Multiple and far-reaching orders have been passed by High Courts and the Supreme Court against State entities (remedies are not available against private entities), for far-reaching reliefs in public interest.

As this action is filed on behalf of the public at large, the standard rule of locus standi (the right to bring an action in court), does not apply. The petitioners are not themselves required to have suffered the legal injury complained of, or to be part of the affected class. Even an unconnected third party may initiate such proceedings on humanitarian grounds for the benefit of all members of the group or class.[5]

Consumer Protection

The Consumer Protection Act, 2019, which recently came into force,[6] considerably overhauled consumer protection law in India. Consumer class action has received statutory blessing, enabling registered consumer associations, and one or more consumers (where they have a common interest or grievance) to file a class actionon behalf of the group. Complaints may be filed in relation to any goods sold or delivered with the permission of the District Forum, provided they have the same interest or grievance and seek the same relief on behalf of or for the benefit of the group.

The Central and State Governments are also empowered to file a complaint either in their individual or representative capacity for the interests of consumers in general. A first of its kind case was filed in 2015, suo motu by the Union of India against Nestlé India. Initiated as a class action suit on behalf of consumers of Nestlé’s ‘MAGGI Noodles’, the Union contended that Nestlé’s labels were misleading and that there were high levels of lead detected in the Noodles that are much loved by children.[7]

Initial action against Nestlé India was taken by the Food Safety and Standard Authority of India, directing it to recall the products from the market and cease production, an action which was challenged and set aside by the Bombay High Court. The class action lawsuit was filed by the Union of India immediately thereafter on behalf of Indian consumers. Damages of approximately INR 640 crores (USD 85.5 million) were sought for alleged unfair trade practices and sale of defective goods. The matter is currently pending before the National Consumer Disputes Redressal Commission (‘NCDRC’).

Provisions for Minority Protection against Oppression and Mismanagement

Minority shareholder interests have been protected under the erstwhile Companies Act, 1956 (‘the 1956 Act’), and the Companies Act, 2013 (‘the 2013 Act’). Redressal to minority shareholders is available in relation to acts of oppression by the majority shareholders and/ or mismanagement of the company by the controlling group.[8]

There is a threshold qualification of a minimum of 10 members or 10% the members of a company that must be met before a group can initiate this action. The National Company Law Tribunal (‘the Tribunal’), before whom such an action may be filed, has extensive powers to grant redressal against the complaints of oppression/mismanagement. For instance, the Tribunal may grant orders requiring the majority group to buy out the minority shareholders, appointing/removing a director to/from the board of the company, directing the audit of the company’s accounts, appointing an administrator to take over the management of the company, and in egregious cases, even winding up of the company.

While this minority protection is not in itself a ‘class action,’ it empowers a group of shareholders to jointly seek redress.

Class Action under the 2013 Act

The lack of a specific provision for class action in Indian corporate law was particularly felt in the aftermath of the ‘Satyam scandal’ in 2009,  whenthe Chairman of Satyam Computer Services Ltd. confessed to cooking up the company’s books of account to the extent of about USD 1.47 billion (about INR109  billion).  Not surprisingly, the shares tanked, and investors lost about INR 186  billion in value.

After the scandal broke, several investors went after the Chairman, Directors and auditors of the company. As many as 12 class action suits were filed in the United States, ultimately leading to a settlement of almost USD 125 million for the US investors.

The fate of Satyam’s Indian investors was less happy A consumer protection association, Midas Touch Investors Association (“MITA”), approached the NCDRC seeking compensation of INR 49.87 billion (approximately USD 668.52 million), for around 300,000 retail shareholders. The NCDRC refused to hear the complaint citing, among others, a reason that it was not equipped to deal with such cases.[9] MTIA moved the Supreme Court against the rejection but ultimately withdrew the petition[10] (possibly on account of a realisation that they were unlikely to get relief), and Satyam’s Indian investors watched their money go down the metaphorical drain.

The need to codify class actions in respect of company law had been recommended as early as May 2005, in the J.J. Irani Committee’s Report submitted to the Ministry of Corporate Affairs.[11] Two Companies Bills in 2009 and 2011 introduced provisions for class action, but these Bills lapsed. Notably, the 2011 Bill restricted eligible plaintiffs only to members and depositors, excluding creditors from its purview.  The rationale was that the creditors could enforce their claims through contracts with their borrowers, and as such, there was no necessity for a statutory right to class action; members and depositors not having any security, it was necessary to empower them accordingly.[12]

Section 245 of the 2013 Act

It is in this background that Section 245 was introduced in the 2013 Act, enabling members and depositors of a company, either individually or as a class, to join together for redress and appropriate reliefs from the Tribunal. (Banking companies are excluded from its ambit.)

A numerical threshold must be met as a condition to availing of the benefit of Section 245 viz. a minimum of 100 members or 10% of the total number of members of a company is needed to file a class action suit. Where the company does not have share capital, the minimum threshold is 1/5thof the total number of members. Depositors are also entitled to institute class action on similar thresholds.

All similar applications are consolidated into a single proceeding and the lead applicant is chosen amongst them, either by joint consensus of the group, or by the Tribunal. The lead applicant is in charge of prosecuting the action.

Reliefs may be sought against the company, its directors,  auditors,  expert, adviser or consultant for any fraudulent, unlawful or wrongful act, including monetary compensation or damages for the commission of fraudulent acts or those that that are prejudicial to the interests of the company, or its members or depositors, or against the public interest. Orders passed are binding on them all.

There is no maximum cap on the compensation or damages that may be awarded, or the manner in which they may be distributed amongst the applicants, the same clearly being left to the discretion of the Tribunal.

The costs of the application must be defrayed by the company or any other person responsible for any oppressive act.  On the other hand, unsuccessful applicants may be directed to pay the defendant’s attorney’s fees if such an application is rejected as being frivolous or vexatious.

Funding of Class Actions

The Investor Education and Protection Fund: Recognising the need to support minority shareholders and investors, the Ministry of Corporate Affairs announced that plans to implement a scheme to provide them with financial assistance for class actions through the IEPF (Investor Education and Protection Fund), established by the Central Government under Section 125 of the 2013 Act.[13]

Litigation Financing: Third-party funding and the modality of contingency fees, permitting the plaintiff’s lawyer to bear the risk of litigation with the advantage of windfall profits in the event of a successful claim, have leveraged class action movement in the United States and elsewhere. In India, the absence of regulation and a prohibition on lawyers working on contingency or success fees means that this trend is yet to pick up, although it is simply a matter of time.

The Coronavirus Landscape

It is impossible to write an article today without considering the coronavirus pandemic. As distribution networks stretched thin, ‘force majeure’ and ‘material adverse event’ claims were raised in several different avatars. Amid the exponential rise in disputes, as some businesses are being alleged to have taken undue or unfair advantage, some COVID-19 class action cases have already been instituted.

A class-action lawsuit was filed against online retailer Amazon in Florida for allegedly charging excessive prices “for personal hygiene products during a public health crisis”. The overpriced sale of goods (such as USD 199 for a bottle of hand sanitizer, USD 40 for face masks, and USD 99 for toilet paper) was held to be in violation of State laws combating price gouging.[14] Costco and eBay are the other retailers that are facing class action claims for alleged price gouging of high demand products during the COVID-19 pandemic.

Gojo Industries Inc., faced a class action before the New York Federal Court on the grounds of misleading, deceptive and unfair claims that it’s Healthcare Advanced Hand Sanitiser“kills 99.99% of illness-causing germs” and has the “ability to prevent colds, flu.”[15]

An action has been filed against IPI and its CEO, J. Joseph Kim, on behalf of shareholders who purchased or otherwise acquired IPI securities between February 14 and March 9, 2020,  seeking to recover damages caused due to a massive drop in stock price. The complaint alleges that IPI and its CEO, “falsely described their product as a fully completed vaccine when it was nothing of the sort,” which eventually led to a USD 643 million loss of market capitalisation when a statement from Citron Research disputed IPI’s claim.[16]

Crystal ball gazing

Once the dust on COVID-19 settles down, there may be a floodgate of class action claims against global businesses around the world, ranging from cases of negligence against hospitals, restaurants, the travel industry, etc. alleging that they did not take adequate steps to protect the consumers or negligently exposed them to the virus resulting in personal injury or death, to damage claims on account of stock drop securities class action, for instance, owing to misfeasance, malfeasance.

In the Indian scenario, Infosys, the beleaguered tech giant, became the target of a class-action lawsuit in the United States in 2019, in respect of alleged unethical practices; something which the company vehemently denied.  After Infosys was cleared of wrongdoing by the Securities and Exchange Commission in May 2020, the suit was “voluntarily dismissed without prejudice” by the plaintiffs,[17]  and another Satyam-like crash was avoided.

In conclusion, the waters are being tested and it is certain that more and more consumers,  shareholders, and groups of affected/aggrieved parties will approach Indian courts and tribunals for redressal on the basis of similar class actions.

* Partner, Cyril Amarchand Mangaldas

** Principal Associate, Cyril Amarchand Mangaldas

[1] “Germany’s male piglet population might be about to rewrite legal history”, Rick Noak (November 19, 2019), The Washington Post available at https://www.washingtonpost.com/world/2019/11/19/germanys-male-piglets-just-became-latest-animals-file-cases-court-without-their-knowledge/

[2]Statement of Objects and Reasons to the Companies Act, 2013

[3] See Order I, Rule 8 CPC

[4] Articles 226 and 32 of the Constitution of India 

[5]V. Purushotham Rao v. Union of India, (2001) 10 SCC 305

[6] Notification dated 23-7-2020  issued by Ministry of Consumer Affairs, Food and Public Distribution available at https://consumeraffairs.nic.in/sites/default/files/Provisions%20of%20Act%20comes%20into%20force.pdf

[7] Union of India v. Nestle India Ltd., Consumer Complaint No. 870/2015 filed on 11-8-2015 before NCDRC

[8]Sections 397 and 398 under the 1956 Act, which correspond with Section 241 under the 2013 Act.

[9]https://economictimes.indiatimes.com/tech/software/consumer-forum-rejects-plea-on-compensation-in-satyam-case/articleshow/4510331.cms

[10]https://www.business-standard.com/article/companies/sc-dismisses-midas-touch-investor-association-plea-against-satyam-109081003014_1.html

[11] Report of the Expert Committee on Company Law (2005) dated May 31, 2005 issued by Ministry of Corporate Affairs available at http://reports.mca.gov.in/Reports/23-Irani%20committee%20report%20of%20the%20expert%20committee%20on%20Company%20law,2005.pdf

[12] 57th Report of the Standing Committee on Finance (2011-12) (15th Lok Sabha) (Ministry of Corporate Affairs) on the Companies Bill, 2011, p. 16, available at http://164.100.47.193/lsscommittee/Finance/15_Finance_57.pdf

[13]“Govt to give financial aid to minority investors filing class action suits” Business Standard dated  May 6, 2019 available at https://www.business-standard.com/article/pti-stories/govt-set-to-provide-financial-assistance-to-minority-investors-for-class-action-lawsuits-119050500240_1.html

[14]Armas v. Amazon .com Inc., Case No. 104631782, Eleventh Circuit Court in Miami – Dade County, Florida; [A Copy of the class action complaint is available at https://www.docketalarm.com/cases/Florida_State_Miami-Dade_County_Eleventh_Circuit_Court/2020-005653-CA-01/STEPHANIE_ARMAS_VS_AMAZON.COM_INC./Doc-02-Complaint/]

[15] Magdiela Gonzalez v. Gojo Industries, Inc., Case No. 1:20-cv-00888. United States District Court Southern District of New York; [Copy of the class action complaint is available athttps://webcache.googleusercontent.com/search?q=cache:P4pYvmgjNxAJ:https://www.classaction.org/media/gonzalez-v-gojo-industries-inc.pdf+&cd=1&hl=en&ct=clnk&gl=in]

[16] Copy of the class action complaint is available at https://www.dandodiary.com/wp-content/uploads/sites/893/2020/03/inovia-complaint.pdf

[17] https://www.thehindu.com/business/Industry/class-action-suit-against-infosys-dismissed-in-us/article31647106.ece

Case BriefsHigh Courts

Orissa High Court: A Division Bench of Mohammad Rafiq, CJ and Dr B. R. Sarangi, J. disposed of two petitions which challenged the closure of religious places by the State Government in light of Covid-19. While not issuing any general direction, the Court stated that reopening places of worship are a matter for the State Government to decide.

Two writ petitions had been filed by way of Public Interest Litigations, which raised the issue of the right of people to access places of worship being hindered by an order of the Odisha Government which directed the closure of places of worship even outside containment zones till 31-07 2020. The petitioners sought the reopening of all temples in Odisha for darshan and puja for the public, subject to necessary measures such as social distancing and wearing masks.

The petitioners relied on an order by the Ministry of Home Affairs which allowed the reopening of temples from 8-06-2020 onwards. Heavy emphasis was laid on the Supreme Court’s order in Nishikant Dubey v. UOI – SLA(C) No. 8716 of 2020 dated 31-07-2020 to buttress the submission that there cannot be a complete closure of religious places. The Advocate General, Ashok Kumar Parija, however, contended that according to a press note released by the Central Government, the State Government may prohibit or restrict such activities as deemed necessary. Moreover, he stated that the decision to close religious places was taken after an assessment of Covid-19 cases, which had revealed a spike in the number of cases in different parts of Odisha in the past few weeks.

The Court held that allowing entry of people into religious places is “matter for the State government to decide, on the basis of assessment of the day to day situation prevalent from place to place.” However, the Court did not deem it appropriate to pass a general order governing the entry of people into various religious places in the state. Instead, it directed the State Government to examine the grievance of the petitioners, keeping in mind the Supreme Court order mentioned above, and make a decision it deemed appropriate about reopening different places of worship in Odisha, depending on the situation prevalent, from time to time and place to place. [Trilochan Rath v. Government of India, WP (C) No. 17898 of 2020, decided on 10-08-2020]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and Prateek Jalan, J., held that as and when any advocate approaches the Court with regard to the inclusion of “Advocates” in the definition of “Professionals” under the Micro, Small and Medium Enterprises Development Act, 2006, the same could be entertained on merits.

A Public Interest Litigation was filed wherein the grievance was the non-inclusion of the advocates in the definition of the word “professionals” under the Micro, Small and Medium Enterprises Development Act, 2006.

Purpose of the petition was the welfare of the advocates as a class so that the benefits which flow from the inclusion under the Act, 2006 are made available to them as well.

Bench declined to entertain the petition.

Adding to its decision, Court stated that such PIL for the benefit of a class of persons can be preferred if the affected persons are unable to access the courts, e.g. the poorest of the poor, illiterates, children, and other classes of people who may be handicapped by ignorance, indigence, illiteracy or lack of understanding of the law.

Advocates are capable enough to approach the Court, if aggrieved.

Hence, as and when any advocate approaches the Court, decision on merits could be taken.[Abhijit Mishra v. UOI, 2020 SCC OnLine Del 927, decided on 29-07-2020]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Vikram Nath, CJ and P.B. Pardiwala, J., while addressing an issue with regard to the live streaming of the Court proceedings held that a committee to work out the modalities for the said purpose has been constituted comprising of two Judges of this Court.

A law student raised the issue with regard to the Live Streaming/Open Access of the Court proceedings and in the public interest Gujarat High court should work out the necessary modalities for the said purpose.

Bench on perusal of the material on record, stated that to observe the  requirement of an open Court proceedings, members of the public should be allowed to view the Court hearings through video conferencing except the proceedings ordered for the reasons recorded in writing to be conducted in-camera.

Right to Know and receive information is one of the facts of Article 19(1)(a) of the Constitution and for which reason the public is entitled to witness the Court proceedings.

As, the above-stated Court proceedings involve the issue impacting the public at large or a section of the public.

Bench appreciated the efforts of the 3rd year law student appeared in person in the public interest.

Further, in line of the above-stated observations, Bench stated that to work out the modalities to facilitate the people at large including the media to watch the virtual hearing, Committee of two Judges of this High Court has been constituted pursuant to Standing Committee’s decision on 25-06-2020.

In the near future, a report of the committee is expected after which to allow access to the public at large including the media persons of print digital and electronic media shall be finalized.

Petition was disposed of in view of the above. [Pruthvirajsinh Zala v. Gujarat High Court, 2020 SCC OnLine Guj 1055 , decided on 20-07-2020]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Govind Mathur, CJ and Saumitra Dayal Singh, J., took suo moto cognizance of reports wherein it has been stated that the minor girls in Chitrakoot are forced to being entered into immoral activities.

Practicing Advocate at Supreme Court of India, Dr Abhishek Atrey raised concerns with regard to minor girls being forced to enter immoral activities against meager wages, through an email which was treated as a Public Interest Litigation.

Petitioner cited a report published in the India Today Magazine along and also broadcasted on India Today News Live TV wherein it was stated that in the Chitrakoot District minor girls were being forced to enter immoral activities against meager wages. Allegations have also levelled pertaining to violation of Child Labour (Prohibition and Regulation) Act, 1986.

Taking note of the above, Court directed the District Magistrate, Chitrakoot and Chairman, District Legal Services Authority to inquire into the matter as referred in the report given by India Today Magazine.

Separate reports have been asked to be submitted by District Magistrate as well as Chairman, District Legal Services Authority, Chitrakoot to the High Court on or before 28-07-2020.

Petition is to be listed on 28-07-2020. [Suo Moto v. State of U.P., 2020 SCC OnLine All 886, decided on 22-07-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and M.S. Karnik, J., disposed of a matter wherein the orders of Maharashtra Real Estate Regulatory Authority were in challenge.

Orders passed by Maharashtra Real Estate Regulatory Authority on 2nd April, 2020 and 18th May, 2020 have been challenged in the present public interest litigation at the instance of a citizen for the benefit of home buyers.

Petitioner submits that the impugned orders suspend certain provisions of the Real Estate (Regulation and Development) Act, 2016 and are arbitrary and illegal.

Real Estate (Regulation and Development) Act, 2016 is a complete code in itself dealing with regulation and promotion of the real estate sector, protection of the interests of the consumers and establishment of adjudicatory mechanism for speedy dispute redressal.

Section 44 of the said Act provides a remedy of appeal to any person against any direction or order or decision of the RERA before an Appellate Tribunal.

In the above view of the matter, home buyers for whose benefit the petitioner has instituted present PIL are not left without a remedy. If indeed any home buyer is aggrieved by the order or direction of the respondent no 1, he/she/it is free to approach the appellate forum.

Thus, Court disposed of the present PIL. [Sagar Sarjerao Nikam v. Maharashtra Real Estate Regulatory Authority, 2020 SCC OnLine Bom 728 , decided on 26-06-2020]

Also Read:

MAHARera declared COVID-19 impacted period from March, 15 to September 14 as force majeure under the provisions of Real Estate (Regulation and Development) Act. 

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and K.K. Tated, J., dismissed a PIL filed seeking direction to schools not to charge more than 50% fees and related reliefs.

  • the direction be issued to the schools, not to charge more than 50% of the fees in this academic year taking into consideration the pandemic and its effects;
  • direction to waive off the school fees during pandemic lockdown to be given starting from 23rd March 2020;
  • directions to waive off the online sessions for pre-primary and primary section schools from Nursery to 4th std;
  • the schools to less make projects where sometimes unnecessary expenses are done for this academic year;

the state government be directed to take due care and see that the schools not to violate if found guilty strict actions to be taken and no schools to reopen till the innovation of vaccine for COVID-19 virus.”

It is to be noted that not a single school has been impleaded as a respondent by the PIL petitioner. Thus granting the prayers of PIL petition in absence of the schools would amount to breach of principles of natural justice.

Court in view of the above stated that Court may add schools as respondents but no explanation has been furnished why the PIL petitioner did not implead at least some of them as respondents.

Another reason for non-interference is that, if at all the statement wherein it has been stated that parents of children are in financial distress, is correct — nothing prevents such parents to approach the government in a group and seek framing of guidelines for reducing the quantum of tuition fees as well as other relief during lockdown period.

In matters relating to academic policy, Courts ought to stay at a distance.

Thus, in view of the above, petition was dismissed of. [Dr Binu Varghese v. State of Maharashtra, 2020 SCC OnLine Bom 721 , decided on 19-06-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and Prateek Jalan, J., imposed costs on the petitioner while rejecting his petition to grant waiver of rent for all tenants and related reliefs.

In the present petition, following are the reliefs sought:

  1. Waiver of Rent for all the tenants
  2. Constitution of ‘Rent Resolution Commission’,
  3. Constitution of ‘Rent Auxiliary Fund’
  4. Issue directions to the Delhi Police to make amendments to the standard operating procedure where, if their Control Room officer receives any distress call on ‘100 or 112’ from a tenant or a landlord, as the case may be, the officer shall connect the caller, after receiving her consent, to ‘Rent Resolution Commission’
  5. One time amnesty to the landlords or tenants, and
  6. setting aside order dated 17th May, 2020 passed by respondent 1/UOI

Essence of the petition

Petition asks landlords to forgo consideration for their premises already retained by the tenant.

The powers/discretion for waiving of such consideration (rent) vests first with the landlords, who are contractually entitled to the same. This Court will be extremely slow in interfering with the contractual terms which have been entered into by the parties to the contract.

Court declined to entertain the prayer for waiver of the rent and added that,

It ought to be kept in mind that Court cannot do charity at the cost of others. Charity beyond law is an injustice to others.

If the landlord is entitled to receive the rent/consideration in accordance with law as per the contractual agreement entered between the parties concerned, then, the Court cannot, by a general order of the nature sought by the petitioner, waive such amount.

Rent Resolution Commission

In Court’s opinion it sees no reason to constitute ‘Rent Resolution Commission’ and provide for all the mechanism of appointment of the Members thereof, procedure for removal thereof, fixation of salary thereof etc.

Moreover such issues are policy oriented and not for the Court to decided as the same lies in the legislative/executive domain.

Further the Court added that, it cannot pass general directions that would result in waiver of contractual or property rights or establishment of adjudicatory bodies.

Fallacy in the Case

Petitioner seeking an order placing the burden of proof on the landlord with regard to the financial situation of the tenant is the fallacy in the matter.

Further, petitioner was unable to justify as to how a landlord can be asked to provide such evidence which may not be within his/ her knowledge at all. The petitioner has sought to postulate a scheme based upon his own understanding, but without sufficient thought as to the modalities or the consequences of the proposal.

One time amnesty to landlords or tenants

For grant of one time amnesty requires various factors to be considered and the same will be a policy decision to be taken by the Government authorities.

Court is not the maker of the law, and cannot draft a brand new law, except where the law is silent or where some lacuna is to be filled up.

Presumption

It has been presumed that the tenants alone are suffering from financial hardship or from the economic consequences of pandemic and lockdown, however, it ought to be kept in mind that even the landlords can be financially dependent on the rent.

Thus, whenever a landlord expects eviction of the premises on the basis of non-payment of the rent, in such eventuality, the Court has to appreciate the proved facts of that particular case.

Thus in view of the above the Court does not see any reason to interfere with the order dated 17th May, 2020 passed by UOI.

Concluding its analysis for the above matter, Court stated that the present petition does not appears to be a public interest litigation, but it is publicity interest litigation.

Proposals made by the petitioner are ill- conceived, as he does not appear to have thought about their practicability or their effect on other stakeholders.

Cost of Rs 10,000 have been imposed on the petition for abuse of process of the Court and the said amount will be utilized for COVID relief and welfare measures. [Gaurav Jain v. UOI, 2020 SCC OnLine Del 652 , decided on 15-06-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and Prateek Jalan, J., while addressing a Public Interest Litigation, held that,

“fixing of the fare is a complex phenomenon and a decision to be taken by the Government. It is a policy decision and this Court is not inclined to interfere in this policy decision.”

Present Public Interest Litigation was preferred challenging the minimum fares which are fixed by Ministry of Civil Aviation vide its 21st May, 2020 Order.

Petitioners Counsel submitted that the difference in fare prices will lead to fixation of prices by the cartel of the airlines.

Bench while disagreeing with petitioners contention stated that, in the present circumstances when various restrictions have been placed on the airline operations, and maximum limit for air fare is given by the Government, the minimum fare is also prescribed so as to strike a balance between the passengers as well as the airlines agency

Exercise of tariff fixation, and economic matters in general, are issues on which the writ court would generally refrain from exercising jurisdiction, unless found to be totally arbitrary or unreasonable.

Further the Court observed that it ought to be kept in mind that this fixation of minimum and maximum fares is for the journey to be performed only for essential purposes. 

Section 8B(1) of the Aircraft Act, 1934 specifically clothes the Central Government with the power to take necessary measures to minimise the possible danger to public health in the event of outbreak of any dangerous epidemic.

Thus, in view of the COVID19 pandemic, power exercised by respondents cannot be said to be arbitrary or unreasonable.

Ministry of Civil Aviation’s order as mentioned above is only a stop gap arrangement for which present PIL is not tenable.

Lastly the Court concluded it’s  Order by stating that, “problem being faced by everyone during this pandemic situation is such a unique phenomenon that requires experimental solutions. There cannot be any mathematical solution for a problem like this.”

In view of the above observations, petition was disposed of. [Veer Vikrant Chauhan v. UOI, 2020 SCC OnLine Del 627, decided on 04-06-2020]

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and K.K. Tated, J. asked the State Government to file report mentioning the whole procedure that a migrant worker is required to follow in order to be eligible for leaving the State of Maharashtra, likely time within which he could board a train/bus, the nature of shelter he is provided with during the waiting period as well as provisions made available to him for his sustenance.

The present Public Interest Litigation raised very apposite issue with regard to migrant workers who wanted to avail for Shramik Special trains and buses  being left in dark about the status of the their applications for the same.

Till the time migrants are updated about the status of their applications for boarding the trains/buses, they are made to live in cramped and unhygienic shelter without the provision of food and other essentials.

Additional Solicitor General, Anil Singh submitted that Supreme Court’s 28th May, 2020 Order has taken care of plight of migrant workers.

Bench stated that , at the present stage it is not empowered nor does it wishes to make any order contrary to the spirit of Supreme Court’s Order.

However, Court called upon the State to file a report by 2nd June, 2020 indicating therein how plight of migrant workers who have been assembling at the railway stations/bus stands in Mumbai and places around it, are being addressed. [Center of Indian Trade Unions v. State of Maharashtra, 2020 SCC OnLine Bom 679 , decided on 29-05-2020]

Case BriefsCOVID 19High Courts

Allahabad High Court: Convening via video-conferencing, the Division Bench of the Court comprising of Ramesh Sinha, and Siddharth Varma, JJ., looked into the instant Public Interest Litigation, wherein the petitioner appearing-in- person highlighted that how Covid-19 has reached an alarming level in the city of Meerut and how the city administration has not been able to provide adequate measures to contain the spread of Covid-19.

Noting the seriousness of the matter, the Court directed the Chief Standing Counsel for the State to seek necessary instructions from the District Magistrate, Meerut in the matter and present the same before the Court on the next date fixed.[Namman Rajvanshi v. State of U.P, 2020 SCC OnLine All 663, decided on 28-05-2020]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Anil Kumar and Saurabh Lavania, JJ., addressed a Public Interest Litigation and sought the essential necessities and facilities being provided to the migrant workers.

Present PIL was filed to seek direction with regard to safeguarding the rights of migrant workers stranded Uttar Pradesh and in view of that their essential necessities to be fulfilled. The one’s who are moving on road shouldn’t be left starving.

State Counsel, H.P. Srivastava and S.B. Pandey, Assistant Solicitor General of India ensured the Court that the Guidelines issued by Ministry of Home Affairs and Supreme Court will be fully carried out by the State of Uttar Pradesh.

Bench in view of the above directed the respondents to file a status report for the above indicating what facilities have been provided to workers/labourers who are keen to reach back their native place in State of U.P.,some of which are on the way as also to the stranded workers/labourers in the State of U.P. [Dileep Kumar Mishra v. U.O.I, 2020 SCC OnLine All 617 , decided on 21-05-2020]

Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Anil Kumar and Saurabh Lavania, JJ. addressing a concerned with regard to spraying of Sodium Hypochlorite on human beings, State of U.P. sought time to file counter-affidavit.

Petitioner sought relief for the following through the present petition:

  • Issue a writ, order or command in the nature of Mandamus thereby directing the OP 1 to ensure compliance of advisory issued by MoHFW regarding prohibition of Sodium Hypochlorite spray on human beings or any other living being.

Petitioner’s counsel relied on following with regard to use of Sodium Hypochlorite:

Wear protective gloves/ protective clothing/eye protection/ face protection.

In case of ingestion, Inhalation, skin contact or eye contact, Poison Centre or doctor/physician to be immediately contacted.

On contact of Sodium Hypochlorite person can suffer burns by all exposure routes.

“…it is evident that from no stretch of imagination Sodium Hypochlorite can be used in any form for spraying it over a human being or any animal for any purpose, be it whatsoever.”

It has been stated that on 23rd March, 2020 a cleaning staff lost his lie in U.P. while spraying the disinfectant in order to prevent coronavirus as he was spraying the disinfectant without any proper preventive kit.

On 29th March, 2020, at District Bareli several persons comprising of men, women , old person and young children were subjected to spraying Sodium Hypochlorite in the name of killing corona virus which might be present in their body. It is also necessary to point out that the aforesaid inhuman act of spraying Sodium Hypochlorite caused severe panic and ill effects over the body of the men, women, old persons and children.

Again an incident has been highlighted wherein several labor were subjected to spray of sodium Hypochlorite at Charbagh Lucknow.

Ministry of Health and Family Welfare has also in its guidelines issued that spraying of individuals or groups is NOT RECOMMENDED under any circumstances.

For the said matter, respondents counsel sought 4 weeks time to file a counter-affidavit. [Prince Lennin v. State of U.P., 2020 SCC OnLine All 593 , decided on 19-05-2020]

Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Shashi Kant Gupta and Ajit Kumar, JJ., while addressing a Public Interest Litigation held that,

“Azan may be an essential and integral part of Islam but recitation of Azan through loud­ speakers or other sound amplifying devices cannot be said to be an integral part of the religion, warranting protection of the fundamental right enshrined under Article 25 of the Constitution of India.”

Background

Member of Parliament (Lok Sabha), Afzal Ansari wrote a letter stating that fundamental right to religion of people at Ghazipur may be protected and State Administration may be directed to permit the recitation of Azan by only one person “Muezzin” from respective mosques of District Ghazipur, since it does not violate any of the directives issued in view of COVID-19 containment.

Senior Advocate of Supreme Court of India, Salman Khurshid also approached Allahabad High Court through Advocate Syed Mohd, Fazal to seek permission of recitation of Azan for the Muslims at Farrukhabad, Hathras, Ghazipur as Azan recitation is an integral part of Islam.

With the prayer of similar relief, Senior Advocate S. Wasim A. Qadri also wrote a letter.

In view of the above, a Public Interest Litigation was filed by Afzal Ansari .

Relief sought was that,

Muslims in the Districts Ghazipur and Farrukhabad, may be permitted to recite Azan through “Muezzin”, by using sound amplifying devices and the restrictions imposed by the administration are wholly arbitrary and unconstitutional since they do not, in any way, violate the guidelines issued for the containment of the pandemic.

Further it was submitted that pronouncement of Azan is not a congressional practice but is simply an act of recitation by a single individual which in no manner violates any of the conditions of lockdown.

Petitioner also added that caretaker of the Mosque is usually responsible for the recitation of Azan who resides in the mosque, in other cases person assigned the duty of recitation Azan is the closes available person, in both the stated cases, no violation of lockdown norms would be observed.

Also ban on Azan through sound amplifying devices is a violation of fundamental right under Article 25 of Constitution of India

Azan is integral to religion and in no way undermines the society’s collective response to the pandemic.

-Senior Advocate, Salman Khurshid

Additional Advocate General while appearing on behalf of the State, supported the Counter Affidavit filed by the Government, wherein it was submitted that, Azan is a call for congregation to offer prayers at the Mosque which clearly is a violation of COVID-19 guidelines.

A meeting was also convened by District Magistrate, Ghazipur on 24th march, 2020 which was attended by several religious leaders wherein it was decided that no religious activities will be conducted during the period of lockdown at any public place of worship and no loudspeakers/amplifiers would be used for the said purpose.

“In the new guidelines issued by Government in view of lockdown, it was stated that all religious places/places of worship shall be closed for public. Religious congregation strictly prohibited.”

Further it was submitted that,

During the period of lockdown with cooperation of religious groups no loud speakers/amplifiers have been used during the festivals like Navratri, Ram Navmi, Hanuman Jayanti and Parasu Ram Jayanti. People of different religions have been following the guidelines and no religious activities are being carried out at any religious place of worship or public place, and no loudspeakers have been used since 24.03.2020

Additional Advocate General stated that right contained under Article 25 of the Constitution of India is subject to public order, morality, health and Part III of the Constitution of India. Rule 5 of The Noise Pollution (Regulation and Control) Rules, 2000 also states that a loud speaker or a public address system shall not be used except after obtaining written permission from the authority.

Bench Analysis & Decision

While referred to the decision of Calcutta High Court in Moulana Mufti Syed Mohammed Noorur Rehman Barkati v. State of W.B.,wherein it was held that,

use of microphone and loud­speakers were not an essential and an integral part of Azan.

There is catena of judicial decisions which recognizes the right to live in freedom from noise pollution as a fundamental right protected by Article 21 of the Constitution of India. Noise pollution beyond permissible limit is hazardous which violates the fundamental rights of citizens.

In the Supreme Court decision of Church of God (Full Gospel) in India v. K.K.R. Majestic, (2000) 7 SCC 282, it was held that

“No religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice amplifiers or beating of drums.”

Court also observed the fact that petitioner’s counsel could not explain why the Azan could not be offered without the use of amplifying devices.

There is no such religious order which prescribes that Azan can be recited only through loud­speakers or by any amplifiers. Azan is certainly an essential and integral part of Islam but use of microphone and loud­speakers is not an essential and an integral part thereof.

Thus, Court for the above also stated that Right to religion by no stretch of imagination, ought to be practised, professed and propagated saying that microphone has become an essential part of the religion.

Azan may be an essential and integral part of Islam but recitation of Azan through loud­speakers or other sound amplifying devices cannot be said to be an integral part of the religion warranting protection of the fundamental right enshrined under Article 25 of the Constitution of India, which is even otherwise subject to public order, morality or health and to other provisions of part III of the Constitution of India.

Another point of significance to be noted is that, until and unless there is a license/permission from the authorities concerned under the Noise Pollution Rules, under no circumstances, Azan can be recited through any sound amplifying devices.

Hence it is ruled that while the right to offer Azan by voice, without the use of sound amplifying devices is a right protected under Article 25 of the Constitution. However, the right to recite Azan though sound amplifying devices is not protected under Article 25, since it is not an integral part of Islam.

Further, the Court stated that,

Azan can be recited by Muezzin from minarets of the Mosques by human voice without using any amplifying device and the administration is directed not to cause hindrance in the same on the pretext of the Guidelines to contain the pandemic­ Covid­-19.

With the above observations, PIL stands disposed of. [Afzal Ansari v. State of U.P., 2020 SCC OnLine All 592 , decided on 15-05-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: A Division Bench of Rajiv Sahai Endlaw and Sangita Dhingra Sehgal, JJ., dismissed a petition raising concerns for the welfare of LGBTQI Community, as the same was filed without any ground work.

Public Interest Litigation was filed to seek direction to respondent to take effective measures to provide financial aid including food, shelter and medicines, etc., to sex workers, lesbians, bisexuals, gay and transgender people in Delhi for their survival during the COVID-19 Pandemic; petitioner also sought the constitution of a Committee for their rehabilitation.

Another point raised in the PIL was the exemption of rent for above-stated persons living in Delhi.

Bench on observing the points on concern raised in the PIL, asked the Counsel that for whose benefit the petition has been filed and how such people/persons are to be identified, he had no clue and appears to be thunderstruck by the question.

“…Whether any separate register is maintained of such persons, as indeed cannot be, again the petitioner has no idea.

Bench asked the Petitioner, whether such persons would come forward to identify themselves; he was unable to say anything whatsoever except for stating that such task should also be assigned to the respondent.”

Further the bench dismissed the matter by stating that respondent as well as State Governments have already brought out several schemes to alleviate hardship to citizens in wake of COVID-19.

Supreme Court and other Courts have already issued directions in the above regard and such persons are not being discriminated.

Thus petitioner sought to withdraw his petition. Court allowed for the same on the condition that,

“the petitioner, if files any other public interest litigation in his  name or on behalf of anybody else, to file a copy of this order alongwith the said PIL and mention this order prominently, in the synopsis as well as in the body of such fresh petition if any. [Anurag Chauhan v. Union of India,  2020 SCC OnLine Del 584 , decided on 11-05-2020]

Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of M. Sathyanarayanan and M. Nirmal Kumar, JJ. took up the present matter by was of suo motu Writ Petition as a Public Interest Litigation.

It was noted by the Court through the medium of a channel named “Puthiya Thalaimurai”, wherein it was telecasted that a Medical Doctor, who had health problems suffered from heart attack due to complications developed on account of COVID 19 infection. Body of the doctor was taken to a Christian Cemetry, though the residents assembled and opposed the burial of the said body.

In view of the above, body was taken to Velangadu and buried, during the process, ambulance was also attacked due to which some public servants were injured.

With regard to Article 21, Supreme Court’s decision in , Francis Coraile Mullin v. Administrator, UT of Delhi, (1981) 1 SCC 608, was cited wherein, it was observed that,

“Now obviously, the right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival.”

Bench in the present matter stated that the scope of Article 21 includes, right to have a decent burial. 

Prima facie it appears that a person who practiced a noble profession as a doctor and breathed his last, has been deprived of his right to have a burial, in cemetery earmarked for that purpose and that apart, on account of law and order and public order problem created, the officials who have performed their duties, appeared have sustained grevious injuries.

Court observed that the information relating to guidelines to be followed  in respect of COVID 19 cases are available in public domain at the instance of the Centre and State Government and people are expected to be aware of the said guidelines issued from time to time.

“Citizens are not expected to take law and order into their hands and if it is so, would definitely lead to anarchy.”

Thus, Court issued notices in public interest to the authorities concerned.

Matter is listed on 28-04-2020. [Suo Motu WP No. 7492 of 2020,  2020 SCC OnLine Mad 938, decided on 20-04-2020]

Case BriefsCOVID 19High Courts

Meghalaya High Court: A Division Bench of H.S. Thangkhiew and W. Diengdoh, JJ. addressed a PIL with regard to allotment of burial/cremation ground.

Petitioner filed the present Public Interest Litigation seeking direction to the State with regard to providing/alloting land for cremation/burial ground by assessing the need for various places of the District.

Counsel for the petitioner submitted that Entry 10 of the State List in the 7th Schedule of the Constitution of India empowers the State to make law on burial and burial grounds and Section 252 of the Meghalaya Municipal Act, 1973 also empowers the Municipal Board to provide fitting places for burial or burning grounds as stipulated by Article 243 (W) read with Entry 14 of the 12th Schedule to the Constitution of India, however, till date there in no single burial ground of the Shillong Municipal Board allotted by the State Government.

Adding to the above submissions, it was averred that, on an emergency basis, the Government may be directed to provide and arrange a place outside the residential area to set up a crematorium or burial ground especially for dealing with cases arising out of the COVID-19 fallout.

With regard to the allotment of burial grounds, AG submitted that State Government is not the appropriate authority for the same as the government does not own land in Meghalaya except the land acquired or purchased from private persons and public land is owned by the Community, allotment of which is governed by the laws made by the concerned Autonomous District Council authorized in Schedule VI of the Constitution of India.

Counsel for Shillong Municipal Board, K. Barua  submitted that the Shillong Municipal Board does not have any land for use as burial ground and there are also no-bio medical plant to dispose of the burial waste.

Bench with regard to the above view stated that it requires a detailed hearing for which necessary material are to be placed before this Court.

Thus the matter is to be listed after 3 weeks. [Justice S.R. Sen (R) v. State of Meghalaya,  2020 SCC OnLine Megh 57, decided on 17-04-2020]

Case BriefsCOVID 19High Courts

Jammu & Kashmir High Court: A Division Bench of Gita Mittal, CJ and Rajnesh Oswal, J. took suo motu cognizance of increasing domestic violence cases against women during COVID-19 lockdown and suggested measures to handle the situation. The Court also passed direction upon the Government and various authorities. The matter was directed to be listed as a writ petition in public interest (PIL).

“Even at the best of the time, women and girls face tremendous barriers in accessing means to meet for help and securing justice. Illiteracy, financial incapacity; ignorance of available assistance; family and societal barriers; fear of formal institutions like police; insufficient legal aid; lack of information, etc impede women and girls from accessing resources against domestic violence being faced by them.”

Observing that unfortunately all crises disproportionately impact women, the High Court noted that globally, while the pandemic is having a tremendous negative impact on societies and economies, the adverse social and economic consequences of the pandemic for women and girls are devastating. As the lockdown is implemented, societies as a whole are having reduced access to resources. There is increase in stress due to loss of jobs and strained finances. Lack of income, unemployment, insecurity about the future or the fate of children creates tensions amongst the adults leading to abuse of all kinds. This is exaggerated in families with prior histories of such behaviour. Women and children are found to be specially vulnerable to such domestic violence which has seen a worldwide spike.

“… the biggest obstacle to a woman seeking assistance against abuse and domestic violence is the fact she has to go against intimate domestic partners or her own family members.”

Looking at the stats, the latest data released by National Commission for Women, within a week after the lockdown began on March 24, a total of 257 complaints relating to crime against women, have been received by its Complaint and Investigation Cell. This data, shows a steep rise during the lockdown, compared with the figures available for the week between March 2-8, that stands at a total of 116 complaints. The cases of domestic violence, specially, rose to 69 from 30.

“The lack of enforcement as well as alternative source of residence also impedes women filing complaints with officials or the police. There is also a huge trust deficit.”

It was noted that one factor in the mode of lodging a complaint, which has been noticed in India, is the inability of women and children from the economic weaker sections of the Indian society to accessing online platforms for assistance. Any measure for assistance to victims of domestic violence must provide for women and children from this group.

Judicial notice was taken of the fact that plight of victims of domestic violence in the UTs of J&K and Ladakh must be no different as that of similarly placed victims in other jurisdictions. It was held that to ensure adequate means and tools to address domestic violence to victims in these two Union Territories, women’s leadership and adequate contributions must also be at the heart of the COVID-19 planning and implementation measures.

Adverting to the Protection of Women from Domestic Violence Act, 2005: the statutory mechanism in existence for protection of rights of women who are victims of violence of any kind occurring within the family, the Court stated that a duty is cast upon the Government under Section 11(a) to take all measures to give wide publicity to the provisions of the law through public media including the electronic and the print media.

Considering gravity of the situation, the High Court suggested following measures to grant immediate assistance:

(i) Creation of dedicated funding to address issues of violence against women and girls as part of the COVID-19 response by the Union Territories of the Jammu and Kashmir and Ladakh.

(ii) Increased availability of call-in services to facilitate discreet reporting of abuse.

(iii) Increased tele/online legal and counselling service for women and girls.

(iv) Designated informal safe spaces for women, say grocery stores and pharmacies, where they can report domestic violence/abuse without alerting the perpetrators.

(v) Immediate designation of safe spaces (say for instance empty hotels/education institutions etc.) as shelters for women who are compelled to leave their domestic situation. These shelters must be treated as accessible shelters.

(vi) Giving urgent publicity to information regarding all of the above measures as also the availability of the facilities for seeking relief and redressal against the issues of domestic violence.

(vii) Increasing awareness campaigns on all aspects of the issues.   

The Court also passed certain directions on various authorities:

(a) Secretary, Department of Social Welfare; Governments of UTs of J&K and Ladakh; and the Member Secretary, J&K State Legal Services Authority, will submit a report informing about the steps taken regarding domestic or any other kind of violence being faced by the women on account of the implementation of the COVID-19 lockdown.

(b) Secretary, Department of Social Welfare; Governments of UTs of J&K and Ladakh; and the Member Secretary, J&K State Legal Services Authority, will examine suggestions given by the Court as enlisted above as also the innovative measures taken by countries world over and the spotlight initiative taken up by the United Nations. The said authorities will take a view regarding requirements and steps to be taken to mitigate the sufferings of the victims of domestic violence in the Union Territories.

(c) A report of measures in place, steps underway, and those contemplated, be placed before the Court before 28th April, 2020, the next date of hearing.

(d) The Secretaries of the J&K Legal Services Authority shall call for list of all cases involving cases of domestic violence which are pending as complaints with the police stations in the Union Territories or in the courts and ascertain the safety and well being of the complainants. 

(e) All the courts in the UTs of J&K and Ladakh shall treat cases of domestic abuse as urgent and proceed with the matters in accordance with the Circulars issued regarding the procedure to be followed ensuring social distancing.

Advocate Monika Kohli is appointed as an amicus curiae and the matter has been directed to be listed next on 28th April, 2020 for further consideration. [Court on its own Motion v. UTs of J&K and Ladakh, WP(C) PIL No. (unnumbered) of 2020, dated 16-4-2020]

Case BriefsCOVID 19High Courts

Gujarat High Court: A Division Bench of Vikram Nath, CJ and Ashutosh J. Shastri, J. addressed a suo motu public interest litigation in view of incident of mass congregation in Delhi.

At least 200 members of the said congregation have been reported to traveled to the State of Gujarat who may be infected with COVID-19. News reports have further confirmed death of one person in Gujarat out of a total of 8 deaths all over the country who had participated in the congregation at Delhi.

Further the Court noted that no one knows where all these 200 or more members of the congregation are now based in Gujarat.

Advocate General, Kamal B. Trivedi appearing for State of Gujarat submitted that Government is already in the process of identifying and tracing not only the members of the said congregation having travelled to Gujarat but also the details of other persons coming in close contact with the said members.

Devan Vyas, Assistant Solicitor General, on behalf of union of India, assured the Court that Central Government after collecting necessary data from State of Delhi with regard to the above would share the same with respective states including Gujarat.

High Court in its earlier order had directed the State Government to ensure that no gathering takes place in all the places of worship in the State but that would not mean that daily puja/aarti/service/offering of prayer(namaaz) in these places of worship is to be stopped bu that the same would carried out by the respective managements without making such places open to public.

Advocate General during the present hearing assured that the above would be strictly followed.

In the present hearing, Court issued that Union of India will provide complete information to the State of Gujarat and to the Court in a sealed cover of all those persons irrespective of their nationality who were party to the Tablighi Jamaat and have entered to the State of Gujarat.

Further the State Government shall provide following details:

  • Details provided by Union of India; Steps taken by State of Gujarat.
  • Quarantine, testing and other steps taken by the State in regard to such persons
  • State shall also provide details of those people who have been untraceable
  • Steps taken for the implementation of the restrictions that may have been imposed by the State with respect to gatherings at all worship places such as Temples, Churches, Gurudwaras, Mosques and strict compliance thereof.

Thus in view of the above the Court held that if satisfactory reports will not be submitted then the court will have to issue necessary directions and may take coercive measures.

Matter is to be listed on 03-04-2020.[Suo Motu v. State of Gujarat,  2020 SCC OnLine Guj 385, decided on 01-04-2020]

Also Read:

Government committed to — identify, isolate and quarantine COVID-19 positive Tabligh Jamaat workers in India post their congregation in Nizamuddin, Delhi

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Indrajit Mahanty CJ, and Ashok Kumar Gaur J., dismissed a Public Interest Litigation alleging the online game “Dream 11” of committing offence of betting and gambling.

In the present case, the petitioner filed a PIL with a grievance that the online game “Dream 11” should be declared involving betting and gambling. The petitioner prayed in his petition that the Court may pass suitable order/s to prohibit the stated game and also measures needs to be undertaken in order to prohibit the commission of offences of gambling.

The Additional Advocate General representing the respondents, Rajesh Maharshi, filed a reply to the above petition contending that the issues in hand has been discussed by various High Courts and the legality of the game has been upheld. The respondents submitted that as per Section 12 of the Rajasthan Public Gambling Ordinance, 1949, the game involving “mere skill” is exempted from the applicability of the Act/Ordinance and since “Dream 11” game has been held to be a game of skill and not a game of chance.

The advocate representing the petitioner, Mr Sunil Kumar Singh, submitted that the State authorities have miserably failed to discharge their statutory obligation of preventing such game which is played by the innocent people and they indulge themselves in gambling and betting.

The Court upon analysing the facts and circumstances declared that the online game did not involve elements of gambling or betting and the State authorities have not violated any statutory obligations.

The Court placed reliance on the directions of the Punjab and High Court decision, Varun Gumber v. Union Territory of Chandigarh 2017 Cri.L.J. 3827 wherein it was decided: “The respondent company’s website and success in Dream 11’s fantasy sports basically arises out of users exercise, superior knowledge, judgment and attention…. Equally so, before I conclude, I must express that gambling is not a trade and thus, is not protected by Article 19(1)(g) of Constitution of India and thus, the fantasy games of the respondent-company cannot said to be falling within the gambling activities as the same involves the substantial skills which is nothing but is a business activity” The Court also relied on the Division Bench judgment of the Bombay High Court Gurdeep Singh Sachar v. Union of India Criminal Public Interest Litigation Stamp No. 22 of 2019 which upheld the legality of the game and upon challenge to the Supreme Court, the Apex Court had dismissed the challenge. The Bombay High Court had stated: “Only if the result of the game/contest is determined merely by chance or accident, any money put on stake with consciousness of risk and hope to gain, would be ‘gambling’ or ‘betting’. There is no merit in the submission that the result of their fantasy game/contest shall be considered as merely by chance or accident notwithstanding involvement of substantial skill.”

The Division Bench also held that the game did not involve any form of gambling since the result of the fantasy game also did not depend on winning or losing any particular team in the real world on any given day. The present Court dismissed the PIL being unable to find any merit in the prayers of the petitioner.[Chandresh Sankhla v. State Of Rajasthan, 2020 SCC OnLine Raj 264, decided on 14-02-2020]