ARTICLE 142 CANNOT BE USED TO MOCK THE LAW

In a recent case heard by the Supreme Court of India, namely Raj Kumar v. State of Uttar Pradesh decided on 04.10.2019 the Petitioner invoked the powers of the Supreme Court under Article 142 of the Constitution.

The Petitioner was selling milk which did not meet the standards prescribed by the Authorities. The sample which was collected in 1995 had the following values. Milk Fat in sample collected from Accused’s concern was found to be 4.6% and Milk Solid Non-Fat was was 7.7%, against the prescribed standard of 8.5%. The inspector therefore prosecuted the Accused and the Trial Court found him guilty. The said Judgement was upheld by Sessions and the High Court of Uttar Pradesh as well.

The Accused pleaded that the Court should give him the benefit of doubt regarding the values in the milk. He pleaded that the case was very old and milk samples had not been properly analyzed. To this the Supreme Court held that if he had doubt regarding the analysis he should have gone for another analysis while the matter was in the Trial Court.

In the Special Leave Petition(SLP) filed in the Hon’ble Supreme Court of India (SC) the Accused Appellant prayed that the Supreme Court should exercise the powers under Article 142 of the Constitution of India that allows the Supreme Court in the exercise of its jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
Rejecting this prayer, the Bench of Justice Deepak Gupta and Justice Aniruddha Bose held that Article 142 cannot be exercised in a way to “make a mockery of the law”.

The Court held that the power under Article 142, in its considered view, cannot be used in total violation of the law. When a minimum sentence is prescribed by law, the Court cannot, in exercise of its power under Article 142, pass an order totally contrary to law. If such power could be used in a food adulteration case to impose a sentence lower than the minimum prescribed, then even in cases of murder and rape, this Court applying the same principles could impose a sentence less than the minimum.


This, in our opinion, is not the purpose of Article 142. We have no doubt in our mind that powers under Article 142 cannot be exercised in such a manner that they make a mockery of the law itself.”

GOVIND GUPTA

ASSOCIATE

THE INDIAN LAWYER



SUPREME COURT OF INDIA TO SOON HAVE A PERMANENT CONSTITUTIONAL BENCH

As per various newspaper reports, the Supreme Court of India is said to soon have a permanent Constitutional Bench from 01-10-2019, which would comprise of 5 judges who would adjudicate matters involving a substantial question of law relating to the interpretation of the Constitution of India 1950 as amended thereof (the Constitution).

The practice that was prevalent before these amendments was that a divisional bench i.e., a bench comprising two judges, referred a matter involving a substantial question of law to the constitutional bench. The Chief Justice of India then constituted a 5-judge bench after taking into consideration factors such as pendency of cases and engagement of judges in other matters.

But soon the Supreme Court would have a permanent 5 Judge Constitutional Bench, wherein, on a rotation basis, minimum 5 judges would get an opportunity to sit and decide any matter involving a substantial question of law, as per Article 145(3) of the Constitution.

Thus, with the setting up of a permanent 5 judge Constitution Bench and five 3 Judge Benches, a total of 20 out of 34 benches would be adjudicating questions pertaining to the Constitution and other important matters. The remaining 14 judges would continue to work as a 2 Judge benches.

With this permanent Constitutional Bench, one may hope that the system adopted to rotate judges will be fair, so that the opportunity is shared equally by every judge.

Aakritee

Associate

The Indian Lawyer

GOVERNMENT OF INDIA LAUNCHES ‘CONSUMER APP’ FOR SPEEDY REDRESSAL OF GRIEVANCES

The Union Minister of Consumer Affairs, Food and Public Distribution, Shri Ram Vilas Paswan, has recently launched a mobile application, namely, ‘Consumer App’ (App) on 01-10-2019, which would act as a one stop solution for speedy redressal of consumer grievances, in addition to consumer courts and consumer helpline.

Further, the App also enables the consumers to avail information across 42 sectors including consumer durables, electronic products, e-commerce, banking, insurance, etc. Besides a registered consumer may also give suggestions to the Government through the App. The App has been made available on both Android and Apple smartphones in English as well as Hindi languages.

A consumer may, upon registration, file a complaint through the App and track the status of the said complaint. The resolution of complaint is said to be a time bound process, whereby, grievances that are simple in nature would be resolved within 20 days, while those that require a feedback from companies or further enquiries, would be resolved within 2 months/60 days. Upon expiry of the said time period, if such complaint remains unresolved, then the consumer would be directed to approach the consumer forum.

This move is meant to be a step closer to the Government’s Digital India Scheme, whereby information about various sectors, consumer complaints, and grievance redressal would be provided in a speedy and efficient manner.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

MINISTRY OF ROAD TRANSPORT AND HIGHWAYS HAS NOTIFIED A PROCEDURE FOR VALIDATING AND IMPOUNDING ELECTRONIC DOCUMENTS RELATED TO MOTOR VEHICLES

The Ministry of Road Transport and Highways, India has recently issued a statement on 20-09-2019 stating that documents such as driving license, registration certificate, papers related to insurance, fitness and pollution check of motor vehicle, etc, may now be produced by a user of a motor vehicle either in its physical form or in its electronic form, when demanded by a police officer or any other person authorized by the State Government. It has further discussed a detailed Standard Operating Procedure dated 17-12-2018 (SoP) that enables enforcement agencies to validate information or impound various such document(s) in their electronic form.

As per the said SoP, the electronic version of the documents such as driving license, registration certificate, etc would be legally recognized by any enforcement agency in India, only after such documents are verified in the following manner:

  1. Electronic records to be available on DigiLocker Platform

The Ministry requires that a user has to store the electronic records of certain documents in an application (App) called the DigiLocker. This App was launched by the Ministry of Electronics and Information Technology on Android and Apple platforms in various mobile phones.

The said App enables the users to get the electronic version of a particular document such as permanent account number (PAN), driving license, registration certificate, education certificates, etc, verified from the concerned department or agency. Thereafter, the verified electronic document gets stored in the App.

2. Electronic records to be available on mParivahan Platform

The data related to insurance of vehicles, driving license, registration certificate of motor vehicle, etc may also be verified and stored in the mParivahan App launched by the Ministry of Road Transport and Highways.

3. Electronic records to be verified through eChallan Platform

eChallan App is a platform, whereby the concerned enforcement officer may enter the credentials of a particular document and validate the information. The said App may also be used to create an eChallan for any violation or offence committed by the user and update their offence history in the eChallan database. The violator may then pay the penalty online and get the case disposed of at the earliest.

Thus, the Government of India has legally recognized and treated the verified electronic records at par with the original documents as per the provisions of the Information Technology Act, 2000 as amended thereof.

This would enable the user to only carry their mobile phones, and not physical documents, to produce verified e-documents to enforcement agencies and also, reduce the burden and cost of maintaining inventory or physical records, reduce the harassment to collect physical documents after payment of penalties, etc.

Further, such verified electronic records also enable the enforcement agencies across the country to have access to the database of a particular user including his offence history, pending payments of penalties, any other recommendations for suspension or blocking of driving license, etc and further, ensure fast, transparent and accountable system in India.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

UNITED STATES-CHINA TRADE WAR

United States (US) and China are locked into a bitter trade battle. Trade War is basically a situation where countries restrict each other’s trade by imposing tariff or quota on imports. Over the previous year, the two largest economies in the world have enforced tariffs on billions of dollars’ worth of goods of each countries. US president Donald Trump has long accused China of unfair trading practices and theft of intellectual property. While China on the other side believes that US is trying to curb its rights.

Negotiations are continuous but have proved to be a failure. Both parties avoid roll back on tariff thereby leading to perpetual conflict.

Initially US started by imposing tariffs on as much as 25% on USD 34 billion on Chinese imports to which China responded by retaliatory tariffs of 25% on US goods worth and equivalent USD 34 billion which included inter alia soyabean, automobiles, and marine products. The latest round targeted Chinese imports, from meat to musical instruments with a 15% duty. On the other hand, Beijing hit back with tariffs ranging from 5% to 25% on US goods. Its latest tariff strike included a 5% levy on US crude oil, the first-time fuel has been hit in the trade battle.

Due to this ongoing trade war nine major economies around the world including the United Kingdom, Russia, Singapore are on the brink of recession or already there. According to Bloomberg Economists report, uncertainty over trade could lower world domestic product by 0.6 per cent in 2021. In the recent past, central banks across Europe, Australia and Asia including India, have already cut interest rates in response to the broadening fallout from the trade war, or are preparing to do so.

The tariff imposed by both the countries are said to damage trade agreements under World Trade Organisation. This war could weaken investment, unsettle financial markets and slow the global economy. But while everything is up in the air currently, one thing is for sure: The tariff war between the world’s two biggest economies is going to hurt China more. While the US economic output is expected to dip by 0.6 per cent, China’s GDP is expected to lower by 1 per cent. Meanwhile China is already running out of US imports that it can target here on.

Aakritee Gambhir

Associate

The Indian Lawyer

CORPORATE TAX DEDUCTIONS

On 20 September, 2019, the Indian Government introduced the Taxation Laws (Amendment) Ordinance, 2019 to make certain amendments to the Income Tax Act, 1961 (the IT Act). The changes include a reduced Corporate Tax.

Below are some of the key changes:

In order to promote growth and investment, a new provision has been inserted in the IT Act which will be effective from April 1, 2019, to allow any Indian company an option to pay income tax at the rate of 22%, subject to the condition that they will not avail any tax exemptions or tax incentives that are provided under the IT Act. The effective corporate tax rate for these companies will work out to be 25.17% inclusive of surcharge and education cess. It has also been proposed that such companies will not be required to pay Minimum Alternate Tax (MAT).

Manufacturing Companies:

In order to attract fresh investment in the manufacturing sector and to provide a boost to the “Make in India” initiative, a new provision has been added in the IT Act which will be effective from April 1, 2019, to allow a new Indian company that is incorporated on or after October 1, 2019, making fresh investments in the manufacturing sector, an option to pay income tax at the rate of 15%.

This benefit will be available to companies that do not avail any tax exemptions or tax incentives and commences its production activities on or before March 31, 2023. The effective tax rate for these companies works out to 17.01% inclusive of surcharge and cess. It has also been proposed that such companies shall not be required to pay MAT.

Hotels with room tariffs of up to Rs 1,000 need not pay any GST. For those with tariffs of Rs 1,001-7,500, the tax will be 12%, and for those offering rooms at more than Rs 7,500 a night, the levy will be 18%.

Tax on Buyback of Shares:

Previously, unlisted companies were alone liable for a buyback distribution tax. With effect from July 5, 2019, the IT Act extended this obligation to listed companies as well. In order to provide relief to listed companies that have already made a public announcement of buyback of shares before July 5, 2019, it has been provided that the buyback distribution tax on buyback of shares in case of such companies shall not be charged.

The Indian Government’s proposal to reduce the corporate tax rate for domestic companies is a positive long-term structural move to boost the economy and raise demand across sectors, especially manufacturing. Domestic companies have a lot to cheer about, and hopefully, foreign investments will see a pickup, both in the foreign direct investment and foreign portfolio formats.

GOVIND GUPTA

ASSOCIATE

GOVERNMENT OF INDIA HAS RECENTLY ISSUED BAN ON USE OF ELECTRONIC CIGARETTES

The Union Cabinet of India chaired by Prime Minister Shri Narendra Modi has recently approved the Promulgation of the Prohibition of Electronic Cigarettes (production, manufacture, import, export, transport, sale, distribution, storage and advertisement) Ordinance, 2019 on 18-09-2019. The Government of India has taken this initiative to prohibit the use of e-cigarettes in India, in overall interest of public health as envisaged under Article 47 of the Constitution of India 1950 as amended thereof.

According to the Union Cabinet, e-cigarettes are battery-operated devices that produce aerosol by heating a solution containing nicotine, which is said to be the addictive substance in combustible cigarettes. These products are sold in market with attractive appearances and multiple flavours, which have successfully induced a large of number of people, especially among youth and children, to use battery-operated devices including e-cigarettes, e-hookahs, etc.

As per the Cabinet, the Ordinance recognizes production, manufacture, etc of e-cigarettes as a cognizable offence and provides the following punishment for the same:

A) For production, manufacture, import, export, transport, sale (including online sale), distribution or advertisement (including online advertisement) of e-cigarettes:

  • Imprisonment of up to 1 year or fine up to Rs. 1 Lakh or both for the first offence; and
  • Imprisonment of up to 3 years and fine up to Rs. 5 Lakhs for a subsequent offence.

B) Storage of electronic-cigarettes:

  • Imprisonment of up to 6 months or fine up to Rs 50,000/- or both.

C) Deposit of existing stocks of e-cigarettes in any nearby police stations:

  • The Sub-Inspectors of Police at every police station have been authorized to take action against offenders including those who have not deposited their existing stock of banned e-cigarettes, on the date of commencement of the Ordinance.

This move of the Government is aimed at protecting the younger generation from the increased risk of addiction to e-cigarettes, and further, at controlling and reducing the use of tobacco and associated diseases, etc in the country.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

AMENDMENTS IN MOTOR VEHICLES ACT

The Motor Vehicles Act 1988 needed a change as the traffic in India has increased by leaps and bounds. The Ministry of Transport and Highways (Ministry) felt that there was an urgent need to amend the Motor Vehicles Act. As per the data of the Ministry roughly 1.5 lakh people were killed in road accidents every year in India. Hence to introduce an efficient, safe and corruption free transport system in the Road and Transport Minister of India Shri Nitin Gadkari introduced the new Motor Vehicles Act (Amendment) Bill 2019 in the Parliament.

The said Motor Vehicles (Amendment) Bill, 2019 is based on the recommendations of the Group of Transport Ministers (GoM) of States constituted by the Ministry to address the issue of road safety and to improve  the inter personal dealings of citizens with transport departments. 

The said  Bill was passed by both Houses and notified on 28th August 2019 by the Ministry and the amendments came into force from 01st September 2019.

The Motor Vehicles Amendment Act, 2019, which contains 63 provisions that deal with penalties, licenses, registration and the National Transport Policy has several amendments. Some of the amendments of interest to the public are:

S no. PENALTY OLD AMOUNT NEW AMOUNT
  1. Penalty for offenses where no penalty is specifically provided Rs 100 for first offense and Rs 300 for second/  subsequent offense. Rs 500 for first time offense, Rs 1,500
for subsequent offense
2. Violation of road regulations Rs 500 to Rs 1,000
3. Disobedience of orders of Authority and refusal to share information   Rs 500   Rs 2000
4. Un authorized use of vehicles without license Rs 1000 Rs 5000
5. Driving without license Rs 500 Rs 5000
      6. Over-speeding Rs 400 Rs 1000 – Rs 2000 for light motor vehicle, Rs 2,000 – Rs 4,000 for medium passenger or goods vehicles and impounding of driving licence for second/subsequent offence.
      7. Drunken Driving       – Imprisonment up to 6 months and/or fine up to Rs. 10000 for first offence and imprisonment up to 2 years and/or fine of Rs. 15000 for second offence.
8. Driving uninsured vehicle fine of Rs. 1000 and/or punishment up to 3 months

 
Rs. 2000 and/or imprisonment up to 3 months for the first offence and fine of Rs. 4000 and/or imprisonment up to 3 months for the second offence.

 
9. Causing obstruction to free flow of traffic   Rs 50 Rs 500

Applicants seeking learner’s license can now apply to any licensing authority in the State online. The minimum educational qualification to drive a transport vehicle has been removed.

In the case of hit-and-run, the compensation amount provided by the Government to the victim’s family has been increased from Rs 25,000 to Rs 2 lakh.

Concerning road accidents, a time limit of six months has been specified for applying for compensation to the Motor Accident Claims Tribunal.

The Union Minister of Road Transport and Highway Nitin Gadkari announced on 11th September 2019 that States were free to make changes in the penalties under the new Motor Vehicle Act. The statement comes after some States, including Gujarat, Maharashtra, and Bihar, expressed dissent over its implementation in totality, as the new law led to hefty penalties on traffic violators. The Minister said the idea of imposing fine was to make people disciplined not to collect revenue from fine.

“The Motor Vehicle Act is in our concurrent list, in which both State and Centre governments have the right to formulate the law. Fines vary as per violation, and States have the right to take the decision,” said the Minister.

The Gujarat Government reduced the challan amounts imposed under the new Motor Vehicles Act for breaking traffic rules. BJP-ruled Gujarat is the first State to do so. The new rules will come into effect from 16th September, 2019 onwards. The Delhi Government is also considering reducing certain penalties.

Gujarat Chief Minister Vijay Rupani announced that the fines laid down in the new act were the maximum suggested and his Government had reduced them after detailed deliberations.

The new Motor Vehicles Act after implementation has now reduced accidents and the fear of heavy penalties has reduced traffic violations. It is hoped that with these changes in the Motor Vehicles Act India will now follow the footsteps of advanced Countries.

GOVIND GUPTA

ASSOCIATE

THE INDIAN LAWYER

SUPREME COURT OF INDIA CALLS UPON THE GOVERNMENT OF INDIA TO TAKE ACTION ON UNIFORM CIVIL CODE

The Supreme Court Of India vide its Judgment dated 13.09.2019 in the matter of   Jose Pualo Coutinho vs. Maria Luiza Valentina Pereira and Anr, observed that till date there has been no efforts and attempts made to frame a Uniform Civil Code applicable to all citizens of the Country. This comment was made while the Court was deciding a personal law matter pertaining to a Goan couple. The Court observed that the  Government has failed to give attention to Article 44 of the Indian Constitution and  promulgate a Uniform Civil Code for the entire country.  It further commented that despite a passage of 63 years since the codification of Hindu Law in 1956 no action has been taken to codify a Uniform Civil Code for all religious sectors.

The Bench comprising of Justice Deepak Gupta and Aniruddha Bose while delivering a verdict in a divorce case of a Goan couple, said that Goa where the Portuguese Civil Code of 1867 is applicable held that this case was a ‘shining example’ for the Government to enforce a Uniform Civil Code.

The Supreme Court wrote “Whereas the founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard.

Justice Aniruddha Bose observed while holding that it will be the Portuguese Civil Code, 1867 as applicable in the State of Goa, which shall govern all personal law issues including the rights of succession and inheritance even in respect of properties of a Goan domicile situated outside Goa, anywhere in India.

With this judgment the Supreme Court of India has brought on centre stage the urgent necessity of implementing a Uniform Civil Code for the country. This judgment can give momentum to the Modi lead BJP Government in taking a decision towards enforcing of a Uniform Civil Code.

SOURABH KUMAR MISHRA

Senior Legal Associate

The Indian Lawyer

INDIA HOLDS BILATERAL TALKS WITH CHINA AND RUSSIA FOR STRENGTHENING STRATEGIC COOPERATION 2019

India has recently held bilateral talks with China and Russia with an aim to increase investment flows, boost economic growth and facilitate bilateral trade between India-China and India-Russia.

India-China strategic cooperation

India is scheduled to hold the 6th India-China Strategic Economic Dialogue (the Event) in New Delhi from 07-09-2019 to 09-09-2019 for enhancing bilateral practical cooperation. Various round table meetings would be held at the Event to discuss about facilitating bilateral trade and investment flows and to address relevant economic and commercial issues across various sectors such as infrastructure, energy, high-tech, resource conservation, pharmaceuticals and policy coordination and to further attend technical site visits.

This Event would be led by the National Institution for Transforming India (NITI Aayog), India, that designs strategic and long-term policies and programmes for the Government of India, and the National Development and Reforms Commission (NDRC), China, that formulates and implements strategies of national economic and social development for the People’s Republic of China.

India-Russia strategic partnership

India and Russia have recently held bilateral meetings to deepen the cooperation in the hydrocarbon sector for 2019-2024 in Moscow on 29-08-2019. The Minister of Petroleum and Natural Gas, and Minister of Steel of the Republic of India, Mr. D. Pradhan and the Minister of Energy of the Russian Federation, Mr. A. Novak discussed about the following ways to strengthen bilateral cooperation in the hydrocarbon sector:

1- Increased supply of liquefied natural gas (LNG) from Russia to India, so that India can transform itself into a gas-based economy.

2- Increased participation of public and private sector companies of Russia in development of gas pipeline networks and city gas distribution infrastructure in India, and augmentation of investments in Indian refining, petrochemical and associated sectors.

3- Collaboration of Indian and Russian companies for exploring possibility of LNG projects in the Arctic region and other joint projects in third countries in the energy sector.

4- Diversification of existing training and knowledge exchange programmes, joint research in energy sector, etc.

5- Potential agreements between India and Russia for supply of crude and fuel oil to Indian refineries.

6- Execution of 35 commercial documents between Russian and Indian companies, a few of which have been listed below:

  • Memorandum of Understanding for the Manufacture and Assembly of Primary Trainer Aircraft, DAKSH between Yakovlev Design Bureau and Bharat Earth Movers Limited
  • Memorandum of Understanding between Far Eastern Mining Company and the State Trading Corporation of India Ltd.
  • Memorandum of Understanding between the Skolkovo Foundation and the Global Education and Leadership Foundation

Thus, these measures seem to portaray the sincere efforts of the Government of India to boost economic growth, increase bilateral trade and investment flows, and further, strengthen strategic bilateral cooperation with China and Russia.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer