public interest litigation Archives

Bom HC | Rise of COVID-19 Cases in State of Maharashtra: State to file information on measures to de-congest jails, to control spread of virus & status of COVID cases

Bombay High Court: The Division Bench of Nitin Jamdar and C.V. Bhadang, JJ., took suo motu cognizance of the rise on COVID-19 cases in the prisons of State of Maharashtra.

Instant Public Interest litigation was a Suo Motu PIL initiated Re: the rise in COVID-19 Virus cases in March-April 2021 in the prisons of the State of Maharashtra.

Newspaper reports, more particularly, Hindustan Times and Free Press Journal have highlighted an alarming rise in the COVID-19 cases in the prisons in the State of Maharashtra. It had been reported that almost two hundred prisoners amongst 47 prisons in the State have been tested positive as of 14^th April 2021. For about 86 staff members working in the prisons have been tested positive.

Advocate General informed the Bench that the Court had taken up a similar cause in July 2020 where the measures taken by the State Government were noted and certain directions were issued.

“…reports show a sudden rise of the COVID-19 cases in the State prisons, indicating a need for the Court’s intervention to revisit the measures.”

Bench directed the Registry to register the Suo Motu (Criminal) Public Interest Litigation under Rule 4 of the Bombay High Court Public Interest Litigation Rules, 2010.

The petition will be taken up today.

Court directed respondents to place the following information on record:

Status of the COVID-19 cases, both the staff members and the inmates in the prisons in the State of Maharashtra.
Measures being taken and proposed to be taken to control the spread of the Virus in the prisons
Measures to de-congest the jails in the State of Maharashtra.

[High Court on its own motion v. State of Maharashtra, Suo Motu Public Interest Litigation No. 1 of 2021, decided on 16-04-2021]

Advocates before the Court:

Mr A.A. Kumbhakoni, Advocate General a/w. Mr Deepak Thakare, Govt. Pleader for the Respondent – State

Case Briefs High Courts

Bom HC | If Judges interfere in academic matters or step into other Organs of State, would that amount to Judicial Over-Reach? Court addresses

Bombay High Court: The Division Bench of Dipankar Datta, CJ and Ravindra V. Ghuge, J., while addressing a Public Interest Litigation held that stepping into the other domains of State Organs would result into Judicial Over-Reach.

The instant PIL was instituted before this Court by a social activist seeking a direction upon the respondents to spread awareness of the contents of Constitution of India, The Right to Information Act and the Consumer Protection Act among the masses by including such laws as compulsory subjects of education at a higher level of studies.

Taking note of the above stated, Bench pointed out that in Justice K.K. Mathew’s ‘Democracy, Equality and Freedom’, the forward was penned by the former Chief Justice Y.Y. Chandrachud, wherein it was expressed that

“in our present dispensation, a Judge cannot, except for honourable exceptions, lay plausible claim of legal scholarship.”

Bench while considering the above expressed that

“We certainly are not exceptions and, therefore, would never dream of claiming legal or any other scholarship.”

“As Judge, we primarily don the hat of an adjudicator.”

Bench while expressing its’ opinion in the instant matter with regard to the administrative work, added that:

“Having regard to the manifold activities in relation to administrative work that we perforce are bound to discharge, we also don other hats.”

Judicial Over-reach

Further, the Court stated that the petitioner has made an attempt to make the Bench don the hat of an academician and interfere in academic matters, a field where they have little or no expertise.

The above action could be a judicial over-reach and stepping into the domain of the other organs of the State.

Hence, while disposing of the present petition, Court opined that the matter must be left to the discretion of the experts in the educational field. [Sanjay Bhaskararo Kale v. Union of India, 2021 SCC OnLine Bom 89, decided on 20-01-2021]

Advocates for the parties:

Ms P.S. Talekar, Advocate on behalf of Talekar & Associates for petitioner;

Mr Bhushan Kulkarni, Standing Counsel for respondents 1 & 2; Mr A.R. Kale, A.G.P. for respondents 4 & 5

Case Briefs High Courts

Bombay HC on Media Reporting, Obligation of Investigators, Media Trial, Freedom of Press and the proverbial ‘Lakshman Rekha’ for Media Houses || Read this detailed report unravelling several significant aspects cropped in light of Sushant Singh Case

Bombay High Court: The Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., while addressing the several questions on reporting by electronic media, expressed that:

“The duty of the press/media to have news items printed/telecast based on true and correct version relating to incidents worth reporting accurately and without any distortion/embellishment as well as without taking sides, cannot, therefore, be overemphasized.”

Genesis of the Several Public Interest Litigations

In the instant matter, several PIL’s cropped from the unnatural death of the actor Sushant Singh Rajput on June 14, 2020.

Insensitive and Disparaging Comments by News Channels

On June 20, 2020, a complaint was lodged against one of the prominent news channels before the Secretary, Ministry of Information and Broadcasting seeking action for insensitive and disparaging comments against the Indian Army and the coverage of the death of the actor, stated to be in defiance with the Programme Code.

Further, it was said that no action against the media channel was taken in regard to the complaint made.

Media Trials

Since the time of death of the actor, several prominent media channels have been literally conducting ‘media trials’ and ‘parallel investigation’ by conducting and broadcasting debates, rendering opinions, exposing the material witnesses, examining and cross-examining the witnesses, chasing the officials of CBI who were investigating the case.

Petitioners added that the above-stated telecast and broadcast are available in the public domain.

Sensationalization and Scandalize the death of the Actor

It is said that the prominent news channels in their attempt to sensationalize the issues have gone as far as displaying the CDR records which is a vital piece of evidence, thereby resulting in the several threat calls and messages sent to the alleged accused.

The petitioners say that to scandalize and sensationalize the death of the actor, irresponsible reporting to implicate one of the prominent ministers of the State of Maharashtra and have been making derogatory, false and distasteful remarks against several ministers.

Further, it was also pointed that the news anchors and reporters were examining and cross-examining all the proposed witnesses exposing the probable evidence to the public which could be examined only by the investigating agency or by the competent courts during the course of the trial.

Press Council of India

PCI had also issued a statement wherein it was stated that the coverage of the alleged suicide of the actor by many media outlets was in contravention of the norms of journalistic conduct.

Undermining the concept of free and fair trial

Petitioners submitted that the freedom of the media, especially of the TV channels, cannot be allowed to super stretch to a point where, by outpouring reprobate information, begins to clog and cloud the pellucid comprehension of ‘facts/news’ in the people’s minds and impinges upon free and fair investigation.

Fundamental Question

Whether the media under the garb of reporting news, can serve their own opinions as facts/news?

Petitioner observed that media works to create or induce opinions by narrating and reporting opinionated and tailored facts as news, which is beyond the scope, power and privilege accorded to the proverbial fourth pillar and a blatant abuse and misuse thereof.

Petitioners assert that media is plagued with the affliction of disproportionate reporting, which may be seen from the undue coverage given to inconsequential and mindless matters, unrelated to the greater good of the people of the country, as opposed to issues of national and international importance which the people are grappling with such as the COVID 19 crisis, mass joblessness, economic downfall, starvation, medical and healthcare structural problems, farmers issues, domestic violence, etc.

Adding to the above, petitioners stated that it is not the media’s domain to prove someone guilty a definitely no question of calling out someone guilty or innocent until the investigation and trial is complete.

Petitioners referred to the Supreme Court decision in Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1, wherein the Supreme Court has commented on the danger of serious risk of prejudice if the media exercises unrestricted and unregulated freedom, and stated that people at the helm of affairs should ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defence of the accused in any manner whatsoever.

Petitioners refer to the decision of the Supreme Court in R.K. Anand v. Delhi High Court, reported in (2009) 8 SCC 106, where the Supreme Court observed that it would be a sad day for the court to employ the media for setting its own house in order and the media too would not relish the role of being the snoopers of the court.

Observation

Contention that media houses have crossed the ‘Lakshman Rekha’

Bench opined that the petitions filed aimed at redressal of genuine public harm or public injury and involve substantial public interest.

Hence, the Court overruled the objections of the media houses to the maintainability of the writ petitions.

Important Legal Questions before the Court

What does the expression “administration of justice in any other manner” in Section 2(c)(iii) of the Contempt of Courts Act, 1971 connote, and whether trial by media/pre-judgment while a police investigation is in progress could lead to interference with/obstruction to “administration of justice”, thereby constituting criminal contempt under the aforesaid section?
Is it necessary to construe “judicial proceedings” in Section 3 of the Contempt of Courts Act, 1971 to have commenced with the registration of an FIR? Also, is it at all necessary to read Section 3 of the Contempt of Courts Act, 1971 in the manner the petitioner in PIL (St.) 2339 of 2020 urges us to read?
Whether media trial in respect of matters pending investigation of a criminal complaint, fall within the restrictions as contained in the Programme Code as postulated under Section 5 of the Cable Television Networks (Regulation) Act, 1995 and the rules framed thereunder?
Whether the regime of self-regulation adopted by the news channels would have any sanctity within the statutory framework?
While emphasizing on the need to strike the right balance between freedom of speech and expression and fair investigation/right to fair trial, to what extent, if at all, should press/media reporting be regulated if the same interferes with or tends to interfere with, or obstructs or tends to obstruct, “administration of justice”?

Further, the Court also proposes to address the following incidental questions:

Are the guidelines for reporting cases of deaths by suicide sufficient? If insufficient, should further guidelines be laid down for reporting cases of deaths by suicide?
Has the media coverage complained of in these writ petitions interfered with/obstructed and/or tends to interfere with/obstruct “administration of justice”, and thus amounts to criminal contempt within the meaning of section 2(c)(iii) of the Contempt of Courts Act, 1971? and whether criticism of Mumbai Police by the electronic media is fair?
Is the accusation that the Ministry of Information and Broadcasting, Government of India, being the Nodal Ministry, has abdicated its statutory functions [under the Cable Television Networks (Regulation) Act and the rules framed thereunder read with the Policy Guidelines of 2011 and the license executed with the broadcaster] of deciding complaints received in respect of offending programmes, by forwarding the same to private bodies like the News Broadcasting Authority (NBA) and the News Broadcasters Federation (NBF), justified?
Should an order be made, on facts and in the circumstances, postponing reporting of events by the media in respect of investigation by the CBI into the FIR registered by it pursuant to the complaint of the actor’s father? Also, is it necessary for the Court to suggest measures for regulating media coverage of incidents such as the one under consideration to address the concerns expressed in these writ petitions?

Analysis

Investigative Journalism

The controversy in the instant matter raises questions of contemporary importance touching upon the right of the press/media to express views freely, the right of the deceased to be treated with respect and dignity after death, the need to ensure investigation of the crime to proceed on the right track without being unduly prejudiced by media reports based on “investigative journalism”, and the right of the accused to a free and fair trial as well as the right to not be prejudged by the media.

“Right guaranteed by Article 19(1)(a) of the Constitution is not merely a right of speech and expression but a right to freedom of speech and expression.”

In Supreme Court’s decision of Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 the need to protect the ‘Freedom of Press’ was highlighted, which is the heart of social and political intercourse.

Further, the Court referred to in LIC v. Manubhai D. Shah (Prof.), (1992) 3 SCC 637, wherein the flavour of the right to freedom of free speech and expression was brought out by the Supreme Court.

“What resonates in our ears now is whether the right guaranteed under Article 19(1)(a) is the most abused right in recent times?”

To the above stated, Court answered in negative and expressed that “it is a reminder of what has at times been the unsavoury past of the press/media in India crossing the proverbial ‘Lakshman Rekha’.”

Rule of Law

There can be no two opinions that in a society governed by the rule of law, no price is too high to maintain the purity of administration of justice; and, as a Constitutional court, we have the power, nay the duty, to protect not only the Fundamental Rights of the citizens as well as the press/media in the judicious exercise of our jurisdiction under Article 226 of the Constitution but also to secure that the stream of administration of justice flows unsullied and unpolluted, uninfluenced by extraneous considerations.

Supreme Court’s decision in Harijai Singh, In Re., (1996) 6 SCC 466 held that:

“10. But it has to be remembered that this freedom of press is not absolute, unlimited and unfettered at all times and in all circumstances as giving unrestricted freedom of speech and expression would amount to an uncontrolled licence. If it were wholly free even from reasonable restraints it would lead to disorder and anarchy. The freedom is not to be misunderstood as to be a press free to disregard its duty to be responsible. In fact, the element of responsibility must be present in the conscience of the journalists.”

PCI Guidelines

Electronic media should also be guided by the contents of the guidelines of the PCI on reporting of death cases by suicide for two reasons: first, the said guidelines have a statutory flavour and similar such binding guidelines on reporting cases of death by suicide are non-existent for the electronic media; and secondly, the absence of such guidelines could lead to the dignity of the dead being breached with impunity.

The death of the actor was followed by such crude, indecent and distasteful news reporting by a few of the TV channels that we do not consider it worthy of being referred to here and be a part of this judgment.

Court’s Ruling

“No report/discussion/debate/ interview should be presented by the press/media which could harm the interests of the accused being investigated or a witness in the case or any such person who may be relevant for any investigation, with a view to satiate the thirst of stealing a march over competitors in the field of reporting.”

High Court opined that the press/media ought to avoid/regulate certain reports/discussions/debates/interviews in respect of and/or touching upon any on-going inquiry/investigation into a criminal offence.

Hence, Bench directed the press/ media to exercise restraint and refrain from printing/displaying any news item and/or initiating any discussion/debate/interview of nature, as indicated hereunder:

In relation to death by suicide, depicting the deceased as one having a weak character or intruding in any manner on the privacy of the deceased;
That causes prejudice to an ongoing inquiry/investigation by:

(i) Referring to the character of the accused/victim and creating an atmosphere of prejudice for both;

(ii) Holding interviews with the victim, the witnesses and/or any of their family members and displaying it on screen;

(iii) Analyzing versions of witnesses, whose evidence could be vital at the stage of trial;

(iv) Publishing a confession allegedly made to a police officer by an accused and trying to make the public believe that the same is a piece of evidence which is admissible before a Court and there is no reason for the Court not to act upon it, without letting the public know the nitty-gritty of the Evidence Act, 1872;

(v) Printing photographs of an accused and thereby facilitating his identification;

(vi) Criticizing the investigative agency based on half-baked information without proper research;

(vii) Pronouncing on the merits of the case, including pre-judging the guilt or innocence qua an accused or an individual not yet wanted in a case, as the case may be;

(viii) Recreating/reconstructing a crime scene and depicting how the accused committed the crime;

(ix) Predicting the proposed/future course of action including steps that ought to be taken in a particular direction to complete the investigation; and

(x) Leaking sensitive and confidential information from materials collected by the investigating agency;

Acting in any manner so as to violate the provisions of the Programme Code as prescribed under section 5 of the CTVN Act read with rule 6 of the CTVN Rules and thereby inviting contempt of court; and
Indulging in character assassination of any individual and thereby mar his reputation.

Role of Media Houses

Bench advised media houses to inform, guide and advise the guest speakers to refrain from making public utterances which are likely to interfere with and/or obstruct the administration of justice and thereby attract contempt.

The role of the anchor, in such cases, is also important. It is for him/her to apply his/her mind and avoid the programme from drifting beyond the permissible limits. Muting the speaker if he flies off or shows the tendency of flying off at a tangent could be one of several ways to avoid embarrassment as well as contempt.

Investigative Agencies

Court also reminded the investigative agencies that they are entitled to maintain secrecy in the course of the investigation and are under no obligation to divulge materials thus collected.

Further, the Court added that:

If indeed there is leakage or disclosure of materials, which has the potential of stifling a proper investigation, it could pave the way for such information being laid before the competent court having powers to punish for cri6minal contempt under Section 2(c) of the CoC Act and in an appropriate case, for being dealt with in accordance with law.

Appointment of an Officer as a Link between the Investigator and Media Houses

Agreeing with Mr Datar’s suggestion Court observed that:

Mumbai Police, as well as the other investigating agencies, may consider the desirability of appointing an officer who could be the link between the investigator and the media houses for holding periodic briefings in sensitive cases or incidents that are likely to affect the public at large and to provide credible information to the extent such officer considers fit and proper to disclose and answer queries as received from the journalists/reporters but he must, at all times, take care to ensure that secret and confidential information/material collected during the investigation, the disclosure whereof could affect the administration of justice, is not divulged.

In case an officer as stated above would be appointed, he would be expected to bear in mind the Supreme Court’s decision in Rajendran Chingaraveluv. R.K. Mishra, (2010) 1 SCC 457.

“Every journalist/reporter has an overriding duty to the society of educating the masses with fair, accurate, trustworthy and responsible reports relating to reportable events/incidents and above all to the standards of his/her profession. Thus, the temptation to sensationalize should be resisted.”

Therefore, in light of the above discussions, the Court disposed of the PIL’s filed.[Nilesh Navalakha v. Union of India, 2021 SCC OnLine Bom 56, decided on 18-01-2021]

Advocates for the Parties:

Mr. Devadatt Kamat, Senior Advocate a/w Mr. Rajesh Inamdar with Mr.Shashwat Anand, Mr. Pankaj Kandhari, Ms. Smita Pandey, Mr.Amit Pai, Mr. Vishal Jagwani, Kevin Gala, Siddharth Naik, Pinky Chainani, Mr. Ankur Azad, Mr. Sarveshwari Prasad, Mr. Rahat Bansal, Mr. Faiz Ahmad. i/b Mr. Pankaj Kandhari for Petitioners.

Mr. Anil Singh, Additional Solicitor General a/w Mr. Sandesh Patil, Mr.Aditya Thakkar, Mr.Amogh Singh, Ms. Apurva Gute, Mr. Chintan, Mr. Mayur Prashant Rane, Mr. Sumedh Sahakari, Mr. D. P. Singh, Ms.Reshma Ravapati, Mr. Saurabh Prabhulkar and Medvita Trivedi for respondent Nos.1, 4, 12 and 13.

Mr. Arvind Datar, Senior Advocate i/by Mr. Bharat Manghani for respondent 3 (NBA)

Mr. P. P. Kakade, Govt. Pleader with Mrs. R. A. Salunkhe, AGP for respondent 5 -State.

Mr. Rajeev Pandey with Mr. Madhur Rai i/by PRS Legal for respondent No.6(The India Today Group).

Mr. Kunal Tandon a/w Ms. Prachi Pandya i/by Corporate Attorneys for respondent No.7 (Times Now).

Ms. Malvika Trivdei a/w Mr. Saket Shukla, Mr. Vasanth Rajshekharan, Mr. Mrinal Ojha, Mr. Debashri Datta, Mr.Rajat Pradhan, Ms. Madhavi Joshi and Mr. Siddhant Kumar i/by Phoenix Legal for respondent 8 (Republic TV).

Mr. Angad Dugal, Mr. Govind Singh Grewal, Shiva Kumar, Tanya Vershney, Raj Surana a/w Rishi Murarka for respondent 9 (NDTV Ltd.).

None for respondent 10 (News 18).

Mr. Ankit Lohiya a/w Mr. Hetal Thakore, Mr. Kunal Parekh, Ms. Bhavika Tiwari i/by Dua Associates AOR Mumbai for respondent 11 (Zee News).

Ms. Hetal Jobhanputra for respondent No. 14 (ABP News).

Mr. Jayant Mehta a/w Mr. Alankar Kirpekar a/w Mr. Tejveer Bhatia, Mr. Rohan Swarop, Mr. Shekhar Bhagat i/by MAG Legal for respondent 15 (India TV).

Mr. Siddhesh Bhole, Mr. Rishabh Dhanuka i/by Alba Law Offices for respondent No. 16 (News Nation).

Mr. Siddharth Bhatnagar, Senior Advocate a/w Mr. Pralhad Paranjape for respondent No. 17 (NBF).

Case Briefs High Courts

Cal HC | Cruel intrusion into the life of flora and fauna: HC takes suo motu cognizance of smuggling and illegal trading of endangered species of birds

Calcutta High Court: The Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., has taken suo motu cognizance of a newspaper report with regard to smuggling and illegal trading of endangered species of birds.

Cruel Intrusion | Life of Flora and Fauna

The newspaper report in ‘Anandbazar Patrika’ exposed the tip of an iceberg regarding the cruel intrusion into the life of flora and fauna particularly the birds, in the wake of the winter season.

Court noticed the challenges to the beautiful fauna life owning to cruel, unethical and illegal activities, in violation of the Constitution and the laws, particularly those relating to animals and birds, were noticed.

In view of the above, requisite directions were sought to be issued by this Court.

It was also noticed that the facts affecting the environment and ecological balance would also be considered.

Counsel appearing for the High Court pointed out that birds are perceived as a symbol of freedom because of their ability to fly. For many centuries birds and their feathers have symbolized life, death, good and bad luck, the future, the past, and other signs.

The above-stated newspaper report touches the different aspects with regard to Constitutional and statutory provisions which deal with the animal life including the fauna population.

Sum and substance of the report:

“In order to effectively deal with the issue of smuggling and illegal trading of endangered species of birds, the provisions of Schedule VII, List III [Concurrent List], Entry 17B of the Constitution of India which speaks of protection of wild animals and birds may be looked into. In addition thereto Articles 48A [Directive principles of State policy] and 51A (g) [Fundamental duties] inter alia speaks of protecting, improving and safeguarding wildlife, reading thus:

48A: The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.

51A (g): to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.”

“…The burning issue at the moment is trade in pet birds. It is very unfortunate that species, though protected, are still trafficked widely. A staggering number of birds are cruelly smuggled in various places, in appalling conditions. Birds are trafficked stuffed and suffocated in the piping of suitcases, PVC pipes. They are stuffed in socks, crammed in shoes and their beaks are taped shut. To catch wild parrots, the hunters take two of them as bait and puncture their eyes. These blind and wounded birds are then left on a sheet, where they cry out for help.”

Bench stated that thoughtful consideration needs to be given in the context of different statutory provisions which provide the support to the Constitutional salutory need to protect the birds and also to act promptly, vigorously, forcefully and effectively against the wrongdoers.

Further, the larger scale capturing of birds using weapons or otherwise and also bringing birds to captivity beyond those permissible under the law has also been disclosed in the suo motu petition.

“…migrating birds know no territorial limits and they would fly to better pastures depending upon the change of climate, availability of food and various other reasons including for their existence, procreation etc. This is part of the ecological management of the universe.”

Smuggling and illegal trading of endangered species of birds

In Court’s opinion, the instant matter needs to be considered as the issue is necessary and expedient as the same concerns smuggling and illegal trading of endangered species of birds and for their preservation and protection.

Hence, Bench stated that the instant matter shall stand registered and continue as Public Interest Litigation to address various issues, including the following:

“(i) smuggling and illegal trading of endangered species of birds.

(ii) To fix the responsibility for such smuggling and illegal trading of endangered species of birds.

(iii) To pass necessary directions upon the appropriate authorities to ensure that no smuggling and illegal trading of endangered species of birds, take place and the violators are taken to task on a war footing.”

In view of the urgency of the matter, the same is to be posted on 08-12-2020.[Smuggling and illegal trading of endangered species of birds, In Re., 2020 SCC OnLine Cal 2160, decided on 04-12-2020]

Case Briefs High Courts

All HC | Whether Public Interest Litigation in service matters is maintainable? HC explains in light of SC decisions

Allahabad High Court: The Division Bench of Shashi Kant Gupta and Shamim Ahmed, JJ., addressed whether public Interest litigation in service matters are maintainable.

Instant Public Interest Litigation was filed by the petitioner, who is an elected village Pradhan of Village Panchayat and further claimed that he is also doing social work for public welfare and public money.

Purpose of filing the petition was to secure the public money and to cancel the appointment of respondent 6 as Assistant Teacher in Junior High School which was obtained by illegal mode.

Analysis and Decision

Upon perusal of the averments made in the public interest litigation and documents appended thereto, petitioner sought direction cancelling the appointment of respondent 6 as Assistant Teacher and directing the State to initiate recovery proceedings against the respondent 6.

Court noted that when maintainability of the present public interest litigation, in-service matters, was raised by us no suitable reply was given by the counsel for the petitioner. The preliminary objection regarding maintainability of the instant PIL was raised by the Standing Counsel and submitted that in-service matter PIL is no longer res-integra, lacks bonafide and rather it is a proxy petition.

In view of the above-stated submission of the respondents, the Court considered it appropriate to take the question of maintainability of the Public Interest Litigation as a preliminary issue.

In the Supreme Court decision of Duryodhan Sahu v. Jitendra Kumar Mishra, (1998) 7 SCC 273, Court dealt with an issue as to whether a Public Interest Writ Petition, at the instance of a stranger, could be entertained by the Administrative tribunal and held that in service matter PIL should not be entertained, the inflow of so-called PILs involving service matter continues unabated in the Courts and strangely are entertained.

Orissa Administrative Tribunal’s decision in Amitarani Khnutia v. State of Orissa, 1996 (1) OLR (CSR)-2, the tribunal after considering the provisions of the Act held that a private citizen or a stranger having no existing right to any post and not intrinsically concerned with any service matter is not entitled to approach the Tribunal.

The following passage from the above judgement is relevant:

“…A reading of the aforesaid provisions would mean that an application for redressal of grievances could be filed only by a ‘person aggrieved’ within the meaning of the Act.
Tribunals are constituted under Article 323 A of the Constitution of India. The above Article empowers the Parliament to enact law providing for adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or any local or other authority within the territory of India or under the control of the Government and such law shall specify the jurisdiction, powers and authority which may be exercised by each of the said Tribunals. Thus, it follows that Administrative Tribunals are constituted for adjudication or trial of the disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts. Its jurisdiction and powers have been well-defined in the Act. It does not enjoy any plenary power.”

High Court agreeing with the above reasoning answered the first question in negative and held that the Administrative Tribunal constituted under the Act cannot entertain public interest litigation at the instance of a total stranger.

In the Supreme Court’s decision of Dr D.B. Singh v. Union of India, (2004) 3 SCC 363, Bench decided that the case on the same lines and held that PIL is not maintainable in service matters.

Further, the Court also relied on the decision of Neetu v. State of Punjab, (2007) 10 SCC 614, the Supreme Court held as follows:-

“The scope of entertaining a petition styled as public interest litigation, locus standi of the petitioner particularly in matters involving service of an employee has been examined by this court in various cases. Referring to the decisions in Dr Duryodhan Sahu v. Jitendra Kumar Mishra, reported in (1998) 7 SCC 273 and Ashok Kumar Pandey v. State of W.B. in (2004) 3 SCC 349, cited supra, the Supreme Court held that PIL in service matters has been held as not maintainable.”

Relying on the above-referred Supreme decisions, Court deemed it necessary to extract Article 141 of the Constitution of India, which reads as follows:

“141. Law declared by Supreme Court to be binding on all courts — The law declared by the Supreme Court shall be binding on all courts within the territory of India.”

Hence, the Court held that when the PIL is not maintainable in service matters and time and again the same has been reiterated by the Supreme Court in series of decisions, the public Interest Litigation is not maintainable in law and the same is dismissed accordingly. [Jagdish Prasad v. State of U.P., 2020 SCC OnLine All 1411, decided on 24-08-2020]

Cyril Amarchand Mangaldas Experts Corner

Class Actions in India: Will the Floodgates Open?

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 1/5^thof 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] 57^th Report of the Standing Committee on Finance (2011-12) (15^th 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 Briefs High Courts

Ori HC refrains from deciding on petitions challenging closure of religious places, leaves the matter to State Government

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 Briefs High Courts

Del HC | Advocates are capable enough to approach Court, if aggrieved: Plea for non-inclusion of advocates as “Professionals” under MSME Act dismissed

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 Briefs High Courts

Guj HC | Virtual Streaming of Court proceedings to be decided after Judge’s report to work out modalities in view of facilitating public at large

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 Briefs High Courts

All HC | Minor girls forced to enter immoral activities against meager wages in Chitrakoot: Court takes suo moto cognizance

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 Briefs High Courts

Bom HC | Maharashtra Real Estate Regulatory Authority order providing extension of 6-months for completion of registered projects due to COVID-19 — Challenge rejected

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 Briefs COVID 19 High Courts

Bom | “Nothing prevents financially distressed parents to approach Govt. seeking reduction in schools fees”: PIL seeking fee reduction dismissed

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.

By the present public interest litigation, it has been stated that the parents of school children are in financial distress and following reliefs have been claimed:

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 Briefs COVID 19 High Courts

Del HC | “Charity beyond law is injustice to others”: Court refuses blanket ban on payment of rent, imposes costs on petitioner

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:

Waiver of Rent for all the tenants
Constitution of ‘Rent Resolution Commission’,
Constitution of ‘Rent Auxiliary Fund’
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’
One time amnesty to the landlords or tenants, and
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 Briefs COVID 19 High Courts

Del HC | Ministry of Civil Aviation’s order of “fixing minimum fares” is only a stop gap arrangement; PIL challenging Ministry of Civil Aviation order, not tenable

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 Briefs COVID 19 High Courts

Bom HC | Migrants residing in cramped and unhygienic shelters without essentials till they are updated about application status to board trains/buses| How plight of migrant workers being addressed? State to file report

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 Briefs COVID 19 High Courts

All HC | Chief Standing Counsel for the State of U.P directed to collaborate with Meerut DM to look into the measures taken to combat Covid-19

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 Briefs High Courts

All HC | Status report to be filed addressing what facilities being provided to migrant workers keen to reach their native place

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 Briefs COVID 19 High Courts

All HC | PIL filed to ensure compliance of MoHFW advisory on prohibition of use of Sodium Hypochlorite spray on human beings

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 Briefs COVID 19 High Courts

All HC | ‘Azan’ an essential & integral part of Islam but use of loudspeakers is not; Right to offer Azan by voice, protected under Art. 25 of Constitution

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 Briefs COVID 19 High Courts

Del HC | PIL filed without “any ground work” and any “thought to it”; Court dismisses petition seeking effective measures for sex workers and LGBTQ community during COVID-19

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]

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