SUPREME COURT OF INDIA RESTRICTS SHARING OF AADHAAR INFORMATION

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The Supreme Court of India has recently held vide Judgment dated 26.09.2018 (Judgment) that it is not mandatory for citizens of India to share their Aadhaar card with private entities such as telecom companies, banks, etc.

The Supreme Court in this Judgment decided various petitions that were earlier filed challenging the scheme of Aadhaar in India on the ground that it violates fundamental rights of citizens of India, namely, the right to privacy under Article 21 of the Constitution of India. Earlier, the Supreme Court in Justice K S Puttaswamy (Retd.), and Anr vs. Union of India and Ors 2017, had held that right to privacy is a fundamental right under Article 21 of the Constitution of India. A few other petitions had challenged the constitutional validity of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 (the Act) itself.

In response to all such petitions, the Supreme Court in this case made the following observations while upholding the constitutional validity of the Aadhaar scheme:

That the Act aims at identifying the marginalized section of the society with the use of their Aadhaar numbers for offering them subsidies, benefits or services out of the Consolidated Fund of India and the social welfare schemes launched by the State. For instance, issuance of below poverty line (BPL) Cards, LPG connections and LPG cylinders at minimal costs, ration, pensions, employment, etc. Thus, there exists a legitimate aim of the State in legislating the Act.

That the scheme of Aadhaar is to provide a unique identity to the citizens of India including the marginalized section of society. For enrolment for Aadhaar, demographic as well as biometric information in the form of iris and fingerprints is required, which removes the possibility of duplication. This ensures that only rightful persons receive these benefits.

That the requirement of Aadhaar cannot be made mandatory in the following cases:

For availing the scholarship of CBSE, NEET, JEE and UGC unless it can be shown that the funds flow from the Consolidated Fund of India maintained by the Government of India.

For benefits and services not flowing out of the welfare schemes of the Government targeting a particular deprived class.

For children to seek admission in schools, as right to education is a fundamental right of children between 6 years and 14 years of age under Article 21A of the Constitution of India.

For linking to existing bank accounts and opening new bank accounts, as not entitling a person to operate his bank account until the linking/seeding is done would amount to depriving a person of his property. Moreover, there are no sufficient explanations to show how mandatory linking of every bank account will eliminate/reduce the problems of money laundering and black money.

For using Aadhaar number to link to existing mobile numbers and to register new mobile numbers, as entire population cannot be subjected to mandatory Aadhaar linking because of misuse of SIM cards by a handful of persons.

That the amount of information given by individuals for Aadhaar enrolment is very minimal which is stored with the Central Identities Data Repository, a centralized database in India. It does not include race, religion, caste, tribe, ethnicity, income or medical history, etc. Further, the Act aims to collect the Aadhaar data only to meet the needs of the deprived and destitute so that the State is enabled to provide them a better life through food, clothing, etc. Therefore, there is a fair balance between the right of privacy of the individual with right to life of the same individual as a beneficiary.

That Section 33 of the Act provides that the Aadhaar information may be disclosed only in certain cases including an order of a court, interest of national security, etc. Therefore, such a provision is a reasonable safeguard. But an order for disclosure in the interest of national security should be made by a higher ranking officer along with, preferably, a Judicial Officer. Therefore, the provision of Section 33 to the extent of which it provides power to the Joint Secretary to issue order for disclosure in the interest of national security has been struck down as unconstitutional.

That Section 47 of the Act should be amended to the extent that it would now allow an individual/victim whose right is violated, to file a complaint and initiate the proceedings against the offender under the Act.

That Section 57 of the Act which enables any body corporate or person to seek authentication with the use of Aadhaar is unconstitutional.

The Supreme Court has in this Judgment throughout stated that Aadhaar is only a voluntary scheme except where made mandatory under the Act for availing the benefits and schemes thereunder. The Supreme Court, thereby, upheld the constitutional validity of the Act except where portions of the Act have been struck down as unconstitutional.

Daliparthy Harini

Senior Legal Associate

The Indian Lawyer

SUPREME COURT ON COMPENSATION TO ACCIDENT VICTIMS IN CASE OF NO MOTOR VEHICLE THIRD PARTY INSURANCE COVER

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Recently, the Supreme Court in Usha Devi and Anr. vs. Pawan Kumar and others dated 13.09.2018 has held that the victims of motor vehicle accidents where the vehicles are not insured for third party insurance in India [Accident(s)] would be compensated in accordance with any of the mechanisms suggested by the Supreme Court herein and as adopted by various State Governments in India.

It has been argued by the Appellants that the State has the obligation to check that no uninsured motor vehicles are allowed to be driven on the road. Failing which, the victims of such Accidents should be compensated by the State itself.

But the Supreme Court in this case vide Order dated 26.03.2018 made the following suggestions:

To enact a comprehensive statute dealing with the motor vehicle accidents including those where vehicles are not insured for third party insurance, so that the victims and/or their families do not have to unnecessarily suffer.

To create and manage road accident funds, in place of third party insurance, which would enable payment of compensation to all accident victims, without exception.

Alternatively, to collect a one-time (life time) third party insurance premium by a central insurance agency with respect all vehicles at the time of their sale, in a manner similar to the collection of life time road tax. In addition to the fund created by collection of one-time third party insurance premium, an appropriate road accident cess/surcharge may be levied on the price of petrol/diesel sold across the country.

This model would reduce the burden on insurance companies as well who feel that their outgoings, in the form of payments of third party insurance in case of motor vehicle accidents, is more than the amounts received as third party insurance premiums.

Alternatively, to continue with the third party insurance system but with two changes:

To define ‘third party’ by covering all accident victims (not including the owner of the vehicle) and increasing the third party insurance premium amounts, if necessary

To increase the quantum of compensation in case of hit and run motor accidents

To lay down and enforce road safety measures

To establish trauma centres and first aid centres

To consider the establishment of Road Safety Bureau in order to lay down road safety standards and norms, enforce road safety measures, set up and run trauma centres, to establish first aid centres in petrol stations and carry out research or data collection for accident prevention

In case of Accidents, the owner should be directed to offer security or deposit of an amount within 3 months, that would be adequate to satisfy the award that may be passed by a court or a tribunal as a condition precedent for release of the seized vehicle involved in the Accident. Failing which, the appropriate steps may be taken to dispose of the vehicle and hold such sale proceeds in deposit.

The aforesaid suggestions have been directed to be placed before the Central Government for appropriate action to be taken to comply with them and also for compliance by the Chief Secretaries and the Director Generals of Police of all the States and the Registrar Generals of all the High Courts.

The Apex Court vide Judgment dated 13.09.2018 further held that the State Government cannot be held liable to pay compensation for the owners’ failure to insure their vehicle for third party insurance.

The Supreme Court also directed the Chief Secretaries of each of the States to bring out necessary notification, if not already done within 12 weeks.

Further, the Supreme Court has held the owner of the vehicle involved in the Accident in this case to be liable to face criminal action.

Daliparthy Harini

Senior Legal Associate

The Indian Lawyer

WIDOW’S ENTITLEMENT FOR FORMER HUSBAND’S PENSION AFTER REMARRIAGE

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The Central Administrative Tribunal (CAT) on 12th September, 2018, ordered restoration of the family pension in the name of Renu Gupta and has held in the Order that a widow of a deceased Government servant is eligible for family pension, even after her remarriage.

The Bench held that the in the case of remarriage of a widow, family pension can be given in the name of widow. The Tribunal held that, “without understanding the consequences she had requested for transfer of the family pension in her son’s name after her remarriage. However, the said family pension will become inadmissible after the son attains the age of 25 years.” The Bench rejected the contention of the Ministry of Defence and held that Renu Gupta is “legally entitled for family pension under CCS (Pension) Rules, 1972” and therefore, there is “no legal bar in re-transferring the pension in her name“.

The Petitioner, Renu Gupta, is a 47 years old widow of Late Pawan Kumar Gupta, who was a Government employee under the Ministry of Defence. In 1988, Renu Gupta was appointed as store keeper on compassionate grounds after the death of her husband. She was also granted family pension in accordance to Central Civil Services (Pension) Rules, 1972 and other retiral benefits were offered. After her remarriage at her own request, the family pension was sanctioned afresh to their son, Karan Gupta in 2002.

However, in 2013, she had sent multiple requests for restoration of her family pension, which was subsequently rejected every time and she was informed that she cannot be granted the pension since she had remarried.

The Ministry of Defence claimed that Renu Gupta has already been granted family pension under CCS (Pension) Rules as per her entitlement and “The same was however transferred in the name of her son, on her own request and she cannot be allowed to change her request, intermittently, as per her whims,”.

The CAT came to her rescue and directed the Ministry of Defence to transfer the pension claim from her son’s name, to her, within a time period of 4 months stating that remarriage of a widow was not a valid ground for denying her pension of her late husband.

Taruna Verma

Senior Associate

STAMP DUTY NOT NECESSARY FOR ENFORCEMENT OF FOREIGN ARBITRATION AWARDS IN INDIA: SUPREME COURT

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The Supreme Court Bench of Justice RF Nariman and Justice Indu Malhotra has, in the case of M/s. Shriram EPC Limited v. Rioglass Solar SA dated 13.09.2018, settled a long standing contentious issue by holding that the payment of stamp duty under the Indian Stamp Act, 1899 (the Act) is not necessary for the enforcement of foreign arbitration awards in India.

The main bone of contention in the aforesaid Appeal was whether the expression “award” would include a foreign award or not. The issue arose out of a Madras High Court Judgment dated 09.02.2017, in which a petition filed to enforce a foreign award was allowed. The Judgment overruled the objections to an International Chamber of Commerce (ICC) award (Award) delivered in London dated February 12, 2015.

The counsel for the appellant, Sri KV Vishwanathan, argued before the Apex Court that the Award cannot be enforced as per Section 47 of the Indian Arbitration and Conciliation Act 1996 as amended thereof unless it is stamped in accordance with the Act. He submitted that given the provisions of the Act, it is clear that a foreign award would be covered by the said Act. That being so, and stamp duty not being paid, the said foreign Award could not be enforced.

On the contrary, learned counsel for the Respondent argued that the expression “award” which occurs in Item 12 of Schedule I of the Act applies only to a domestic award and not a foreign award. He relied on the fact that the Act was enacted in 1899, in which “award” has never been enlarged so as to include foreign awards and the only requirement for the enforcement of a foreign award is laid down in Section 47 of the Arbitration and Conciliation Act, 1956, which does not require the award to be stamped.

Tracing the history of the Act and the erstwhile provisions of the Code of Civil Procedure, 1882 which dealt with arbitration, the Apex Court concluded that the Act originally dealt with awards made in British India. It also noted that there were several princely states in India governed by sovereign rulers which had their own laws. The arbitration laws, if any, in the aforesaid princely states, if they were to culminate in awards, would not be “awards” under either the Code of Civil Procedure, 1882 or the Indian Arbitration Act, 1899. They would, therefore, be foreign awards in so far as British India is concerned.

The main reason behind the verdict is the reasoning that a foreign award is not covered by the term “award” mentioned in Item 12 of Schedule I of the Act. The Supreme Court, thus, held as follows:

“It will thus be seen that “award” under Item 12 of Schedule I of the Indian Stamp Act, 1899 has remained unchanged till date. As has been held by us hereinabove, in 1899, this “award” would refer only to a decision in writing by an arbitrator or umpire in a reference not made by an order of the Court in the course of a suit. This would apply only to such award made at the time in British India, and today, after the amendment of Section 1(2) of the Indian Stamp Act, 1899 by Act 43 of 1955, to awards made in the whole of India, except the State of Jammu and Kashmir. This being the case, we are of the view that the expression “award” has never included a foreign award from the very inception to date. Consequently, a foreign award, not being includible in Schedule I of the Indian Stamp Act, 1899, is not liable for stamp duty.”

Thus, the Supreme Court in this case held that the foreign Award not bearing the stamp duty under the Act would not be rendered unenforceable.

Surabhi Aggarwal

Senior Associate

The Indian Lawyer

THE SUPREME COURT DECRIMINALIZED CONSENSUAL SEXUAL RELATION BETWEEN ADULTS OF THE SAME GENDER

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Recently, a 5 Judge Constitution Bench of the Supreme Court of India, in Navtej Singh Johar and others vs. Union of India 2016, has passed a judgment dated 06.09.2018 (Judgment) whereby it decriminalized the act of consensual sexual relationship between adults, whether of the same gender or otherwise, in private and that it would not fall under the category of an unnatural offence under Section 377 Indian Penal Code 1860 as amended thereof (IPC). The Supreme Court in this Judgment overruled its earlier judgment in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. 2014, where it held that Section 377 IPC is not unconstitutional as it does not violate the right to privacy, autonomy and dignity of a miniscule population comprising of lesbian, gay, bisexual and trans (LGBT) communities.

In this Judgment, the Supreme Court made the following observations:

That there is a need to move forward from the deeply embedded stereotypes, prejudiced notions and dogmatic social norms in our society so that there is no discrimination and social exclusion of any individual, community, etc.

That the natural identity of individuals and their inherent personality have to be respected and not belittled.

That a 2-Judge Bench of the Supreme Court in National Legal Services Authority v. Union of India and others 2014 recognized the transgender as a third gender, thereby recognizing their right to equality under Article 14 of the Constitution of India 1950 as amended thereof (the Constitution of India) and their right to life with dignity under Article 21 of the Constitution of India. It further observed that gender identification is very essential for enjoying civil rights by the LGBT community including their right to vote, right to own property, right to marry, right to claim a formal identity through a passport and a ration card, a driver’s license, right to education, employment, health so on.

That it is a constitutional duty to allow individuals/partners to behave and express themselves in a sexual relationship, with the consent of the other partner.

That it does not matter whether the concerned LGBT community comprises a miniscule of the entire population and that the Constitutional framers did not intend to protect the fundamental rights of only a majority population.

Further, the Supreme Court in Justice K S Puttaswamy (Retd.), and Anr vs. Union of India and Ors 2017, has held that right to privacy is a fundamental right under Article 21 of the Constitution of India.

Right to privacy and liberty:

Sexual orientation is an essential and innate facet of privacy and the right to privacy includes right of every individual including that of the LGBT to express their choices in terms of sexual inclination without the fear of persecution or criminal prosecution.

Further, sexual autonomy of individuals to choose their sexual partner is an important facet of liberty.

Therefore, to prevent or oppose the exercise of such right to privacy and/or liberty would mean to deprive them of their right to life and personal liberty under Article 21 of the Constitution of India.

That the discrimination and unequal treatment meted out to the LGBT community as a separate class of citizens indulging in carnal intercourse (alleged to be against the order of the nature) does not have reasonable nexus with the object it (classification) sought to achieve, i.e. protection of women and children from being subjected to carnal intercourse. Therefore, such a classification has been held to be unconstitutional for being violative of Article 14 of the Constitution of India.

Further, Section 377 IPC, to the extent that it criminalizes consensual sexual acts of whatever nature between competent adults, has a chilling effect on an individual’s freedom of choice. Therefore, it amounts to an unreasonable restriction on the fundamental right of freedom of expression including the right to choose a sexual partner under Article 19 of the Constitution of India. Moreover, Section 377 IPC has been used as a weapon to seclude and harass the LGBT community by the majority population.

Therefore, Section 377 IPC, to the extent that it penalizes consensual sexual activity between homosexuals, heterosexuals, lesbians, etc who are competent adults, has been held to be unconstitutional on the grounds that it is violative of the right to dignity and the right to privacy of such individuals. This may enable eradication of the prejudice and oppression caused to the discriminated class of people.

Therefore, the Supreme Court in this Judgment held Section 377 IPC, to the extent that it criminalizes consensual sexual acts between competent adults in private, as violative of Articles 14, 15, 19, and 21 of the Constitution of India.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

INDIA POST PAYMENTS BANK- A STEP TOWARDS DIGITAL INDIA

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The Government of India led by Prime Minister Shri. Narendra Modi has recently inaugurated the India Post Payments Bank (IPPB) on 01.09.2018, set up as a public sector company under the Department of Posts, Ministry of Communication, with 100% equity held by the Government. IPPB aims to provide every household in India access to efficient banking and financial services so that they become financially secure and empowered. IPPB would be set up across all parts of the country covering all post offices. In the first phase of its launch, around 650 branches of IPPB have been planned to be set up, i.e. with one IPPB in each district, and around 3,250 existing post offices have been planned to be activated as banking access points. It also aims to provide doorstep banking services (at a nominal price) by deploying more than 10,000 postmen for that purpose. This would become possible because of the vast network of the Department of Posts in India.

The various banking and financial services to be provided by IPPB are as follows:

Savings and current account deposits,

Money transfer,

Government social welfare benefit schemes,

Loans, insurance, investments, post office saving schemes,

Utility and bill payments including mobile recharge, electricity bill payment, etc

Digital mode of payment during e-commerce transactions, etc.

The Reserve Bank of India (RBI) had issued licence in 2017 to IPPB Limited to commence its operations in India as a payments bank.

The launch of IPPB aims to create transparency, remove corruption and contribute to a cashless or less-cash economy. This is the main object of the Digital India campaign launched by the Government in 2015 i.e. to widen the network of internet connectivity in India and make available electronic mode of delivery of Government services in India. Since after the demonetization phase in 2016, people have been increasingly resorting to electronic transactions, online transfer of money and thereby, limiting the use of paper money. In this way there is lesser scope of generation of black money in the economy as there is transparency in the transactions being executed.

IPPB aims to reach every corner of the country by providing banking services at their doorstep and through its digital and mobile platforms. This would facilitate easy and convenient banking across urban as well as rural regions of India and help to revolutionalize banking and payment system in India.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

THE SUPREME COURT ON ARRESTS MADE UNDER UNLAWFUL ACTIVITIES (PREVENTION) LAWS OF INDIA

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A few months ago, the Pune City Police had arrested five suspected members of the banned Communist Party of India [CPI] (Maoist) in January 2018, who had allegedly organized an event called Elgaar Parishad in Koregaon-Bhima village near Pune (Event) in order to mark the 200th year of Battle of Koregaon, which is said to have been won by the Mahar community, who formed a majority of the British troops, over the then Peshwa rulers in 1818. The Event was allegedly organized to incite the Dalit community against the Government of India. But another group of people had opposed the celebrations stating that it was a victory of British rulers over Indians. These clashes led to violence and public disorder in Koregaon-Bhima village. The police have further alleged that the arrested activists had sourced funds from banned Maoist groups to organize the Event.

The accused persons had been booked under various provisions of the Unlawful Activities (Prevention) Act 1967 as amended thereof (the Act) and the Indian Penal Code 1860 as amended thereof. The arrests have been reportedly made after having conducted nationwide raids on the basis of forensic analysis of electronic and other evidence obtained during the search operations. The Supreme Court has granted interim relief vide Order dated 29.08.2018 of house arrest of the accused persons.

Further, the Supreme Court had passed an order dated 03.02.2011 in Arup Bhuyan vs. State of Assam where it held that mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence. The Supreme Court had, thus, acquitted the accused person on the ground that he was only a member of the United Liberation Front of Assam (ULFA), which was classified as a terrorist organization by the Government of India and thus, banned under the Act, and also there was no evidence to show that he had participated in any act of violence or had incited violence.

The Centre had sought for a review of this Order dated 03.02.2011 in 2016 on the grounds that it may hamper the law enforcement agencies’ attempts to curb and/or prevent potential terrorist activities in the country. A review of this Order dated 03.02.2011 is still pending in the Supreme Court. Also, the Order dated 03.02.2011 may have an impact on the outcome in the Bhima-Koregaon case as arrests may have been made merely on the grounds that the five accused are suspected members of the CPI (Maoist) organization, which has been classified as a terrorist organization by the Government of India and thus, banned under the Act.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer