DELHI HIGH COURT HAS HELD THAT ELECTRONIC VOTING MACHINE IS NOT AN “INFORMATION” UNDER RIGHT TO INFORMATION ACT

The Delhi High Court has recently in Election Commission of India Vs. Central Information Commission and Another passed an Order dated 17-12-2019, whereby the Court allowed a Writ Petition filed by the Election Commission of India and held that the Right to Information Application (Application) made by Mr. Razak K Haider seeking an EVM, is actually an application for supply of a product and not any information under the Right to Information Act 2005 (Act).

On 20-04-2018, Mr. Razak K Haider had filed an Application before the Election Commission seeking access of the Electronic Voting Machine (EVM) machine itself, on the ground that underSection 2(f) and 2(i) of the Act, the definition of’information’ and ‘record’ includes model or any sample. Hence, according to him, an EVM qualifies as ‘information’ and should be provided to him under Section 6(1) of the Act.

This Application was, however, rejected by the Central Public Information Officer (CPIO), reiterating that EVMs were not information in terms of Section 6(1) of the Act.

Aggrieved by the said Order of the CPIO, Mr. Haidar preferred an appeal under Section 19(3) of the Act before the Chief Information Commissioner (CIC), which held that EVMs come within the ambit of the definition of “information” and were therefore subject to the Act.

Thereafter, the Election Commission challenged the said Order of the CIC in the Hon’ble Delhi High Court on the ground that the list of items included in the definition as per Section 2(f) of the Act ought to be read ejusdem generis (i.e. denoting a rule for interpreting statutes and other writings by assuming that a general term, describing a list of specific terms, denotes other things that are like the specific elements).

The Delhi High Court then held that from a reading of Section 2(f) of the Act, it was clear that the Act dealt with records, document, memo, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force. The Court also suggested that the attempt to only rely upon the word “models”, as used in section 2(f) of the Act, to claim an EVM under the Act was “misplaced”, as the term ‘model’ usually represents a three dimensional representation of a thing or proposed structure, typically on a smaller scale than the original. Thus, the Court held that “Clearly, an EVM which is sought for by this RTI application is not miniature/replica and hence cannot said to be a model. It cannot be termed to be information within the meaning of Section 2(f) of the Act.

Govind Gupta

Associate

The Indian Lawyer

BOMBAY HIGH COURT HAS HELD THAT A WIFE IS NOT ENTITLED TO MAINTENANCE IN CASE OF DIVORCE DUE TO ADULTERY

The Bombay High Court has recently in Sanjivani Ramchandra Kondalker vs Ramchandra Bhimrao Kondalkar and Another passed an Order dated 18-12-2019, whereby, Justice Nitin W Sambre dismissed the Petition for grant of maintenance filed by the divorced Petitioner-Wife.

The Respondent No 1-Husband and the Petitioner-Wife had earlier got divorced on the ground of adultery committed by the Petitioner-Wife. Subsequently, the Petitioner-Wife filed an application before the Sessions Court seeking enhancement of maintenance, which was so increased by the Court from Rs 400/- to Rs 500/-. Aggrieved by the said Order of the Sessions Court, the Respondent No 1-Husband filed an application for cancellation of maintenance, which was allowed on the ground that “there is an embargo on granting maintenance to a wife who was divorced on proven charges of adultery against her under Section 125 of the Criminal Procedure Code”. Further, the Code of Criminal Procedure 1973 as amended thereof provides that, “No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent

Thus, the Bombay High Court upheld the Order of the Sessions Court and held that the embargo on the rights of the Petitioner-Wife to claim maintenance, who was divorced on the ground of adultery committed by her, was correct and thus, she would not be entitled to maintenance from the Respondent No 1-Husband.

Aakritee Gambhir

Associate

The Indian Lawyer

GOVERNMENT OF INDIA HAS LAUNCHED GOOD GOVERNANCE INDEX IN 2019

The Minister of Personnel, Public Grievances and Pensions Department of India, Dr Jitendra Singh, has recently launched a ‘Good Governance Index’ dated 25-12-2019 (Index) on the occasion of birth anniversary of former Prime Minister Late Shri. Atal Bihari Vajpayee. The Index would enable the Government to compare the governance of various states and Union Territories (UTs) based on quantifiable data and also help them to formulate strategies to improve the governance.  

The said Index has been designed on different parameters of governance in ten sectors, namely, Agriculture and Allied Sectors, Commerce and Industries, Human Resource Development, Public Health, Public Infrastructure and Utilities, Economic Governance, Social Welfare and Development, Judicial and Public Security, Environment, and Citizen-Centric Governance (Governance Sectors). The Ministry has had conducted several consultations with nationwide sector groups and experts before finalising on the Governance Sectors and parameters, etc.

Each of the Governance Sectors would be measured on 50 indicators and each such indicator would have a different weightage/value. Based on the total value of each indicator, the states and UTs would be ranked on all indicators separately under each Governance Sector. At the same time, based on the total value of all such indicators, a composite ranking would be calculated for these states and UTs under each Governance Sector. The states and UTs are further divided into three groups, 18 Big States, 11 North-East and Hill States, and 7 UTs.

For instance, under the Agriculture and Allied Sector, there are 6 indicators with different weightage, namely:

  • Growth Rate of Agriculture and Allied Sector- 0.4 Weightage,
  • Growth Rate of Food Grains Production- 0.1 Weightage,
  • Growth Rate of Horticulture Produce- 0.1 Weightage,
  • Growth Rate of Milk Production- 0.1 Weightage,
  • Growth Rate of Meat Production- 0.1 Weightage, and
  • Crop Insurance- 0.2 Weightage.

So far, the following States and UTs have been placed on the top ranking of the 9 Governance Sectors:

  1. Agriculture and Allied Sectors- Madhya Pradesh (Big State), Mizoram (North-East and Hill State), Daman and Diu (UT)
  2. Commerce and Industries- Jharkhand (Big State), Uttarakhand (North-East and Hill State), Delhi (UT)
  3. Human Resource Development- Goa (Big State), Himachal Pradesh (North-East and Hill State), Pondicherry (UT)
  4. Public Health- Kerala (Big State), Manipur (North-East and Hill State), Pondicherry (UT)
  5. Public Infrastructure and Utilities- Tamil Nadu (Big State), Himachal Pradesh (North-East and Hill State), Chandigarh (UT)
  6. Economic Governance- Karnataka (Big State), Uttarakhand (North-East and Hill State), Delhi (UT)
  7. Social Welfare and Development- Chhattisgarh (Big State), Meghalaya (North-East and Hill State), Daman and Diu (UT)
  8. Judicial and Public Security- Tamil Nadu (Big State), Himachal Pradesh (North-East and Hill State), Pondicherry (UT)
  9. Environment- West Bengal (Big State), Himachal Pradesh (North-East and Hill State), Chandigarh (UT)

A composite ranking based on the Index indicators have revealed that Tamil Nadu (Big State), Himachal Pradesh (North-East and Hill State), and Pondicherry (UT) have been placed in the top rankings of Good Governance.

The results produced by the Index reflect the efforts made by the State Governments and UTs to make a shift towards better governance, digitization, cashless economy, and a result-oriented administration in India.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

UNREST IN INDIA: REAL OR IMAGINARY

In the last few days there has been unrest in several parts of India and more particularly in Delhi. The reason seems to be confusion about The Citizenship (Amendment) Act 2019 (CAA) and the National Register of Citizens (NRC). The protests seem to be on the issue of being an Indian Muslim. It seems that people now think that the CAA and NRC will deny citizenship to Indian Muslims who are already citizens of India or that it is against Indian Muslims. The fallacy and outcry lie in failing to understand that CAA and NRC are two totally distinct laws and have different applications.

The Citizenship (Amendment) Act grants citizenship to Hindus, Christians, Sikhs, Buddhist, Jains and Parsis – from Afghanistan, Pakistan and Bangladesh who had arrived in India before 31st December, 2014. The legislation applies to those who were “forced or compelled to seek shelter in India due to persecution on the ground of religion”.

It aims to protect such people from proceedings of illegal migration from the neighboring countries. The requirement to stay in India for those belonging to any of these 6 religions for at least 11 years before applying for Indian citizenship has been reduced to five years.

Indian citizenship, under present law, is given either to those born in India or if they have resided in the country for a minimum of 11 years.

The NRC has the object of detecting illegal immigrants regardless of their caste, creed or religion in the territory of Assam. This is in keeping with Supreme Court Order that the NRC will help to identify and detain illegal immigrants from living in the State and thereby altering the ethnic uniqueness of Assam. It seeks to protect the State from infiltration of illegal immigrants.

The CAA is a nationwide Act and is not against Muslims. While the CAA makes it easier for non-Muslims from Muslim Countries such as Pakistan, Bangladesh and Afghanistan to become citizens of India, it does-not in any manner take away the citizenships of Indian Muslims. All it does to give protection to certain non-Muslims refugees, who have taken shelter in India on or before 31st December, 2014.

If people understood the difference between CAA and NRC the protests would end. Because of this confusion Section 144 CrPC has been imposed in several parts of Delhi to prevent probable clashes. What protesters must understand is that Indian Muslim citizens are safe in the Country if they have been residing in India for the last several years.

What the Government is trying to do is to flush out illegal immigrants who are adding to India’s 1.3 billion population. It does-not seek to persecute or ostracize any particular community as misunderstood by the protestors. In a time like this Indians should co-operate with the Government as its in the larger interest of the Country.

SUSHILA RAM

GOVIND GUPTA

ADVOCATE

SUPREME COURT HAS HELD A HOSPITAL VICARIOUSLY LIABLE FOR THE MEDICAL NEGLIGENCE COMMITTED BY ITS DOCTORS

On 17th December, 2019, the Supreme Court Bench consisting of Justices Uday Umesh Lalit and Indu Malhotra in the matter of Maharaja Agrasen Hospital vs. Master Rishabh Sharma has held that a hospital is vicariously liable for the act of medical negligence committed by its doctors.

The Apex Court held that, “A medical profession should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes reasonable skill that other ordinarily competent members of his profession would bring”.

The Hospital was held vicariously liable for medical negligence of its doctors who allegedly failed to carry out the mandatory checkup of Retinopathy of Prematurity (ROP) of a pre- term baby, which led to his total bindless. The Supreme Court also referred to Bolam Test and held that reasonable and prudent care should have been taken in treating a premature baby.

It is obvious that a patient goes to the hospital on the account of goodwill of the hospital with presumption that due care will be taken while conducting a medical treatment, and if the hospital fails to discharge its duties through its experienced doctors, then the hospital along with its doctors would be vicariously liable for medical negligence.

The Supreme Court further discussed the following elements of medical negligence, i.e. breach of duty of care towards a patient either by an act or omission-

  1. A legal duty of care as a part of medical profession
  2. A failure of duty as a doctor to inform the patients of any risk involved
  3. Patient suffers as a result of the negligence so caused
  4. Breach of such duty of care would give rise to actionable claim of medical negligence.

The Bench awarded a compensation of Rs 76,00,000/- to the Aggrieved and his mother and further held that “The grant of compensation to remedy the wrong of medical negligence is within the realm of law of torts. The said principle provides that a person is entitled to damages which should as nearly as possible get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong.”

Aakritee Gambhir

Associate

The Indian Lawyer

GOVERNMENT OF INDIA HAS HELD THE 7TH PRE-BUDGET CONSULTATIONS 2020

The Ministry of Finance has recently held the 7th Pre-Budget Consultations from 16-12-2019 to 20-12-2019, with various stakeholder groups from digital economy, fintech, start-ups, agriculture, industry, services, trade groups, infrastructure, energy and climate change sectors, industrialists, trade union and labour organization representatives, State Ministers, etc.

The main issues that were discussed amongst the stakeholders have been listed as below:

  1. Need for use of data technology in small and medium scale enterprises and for public governance
  2. Need for regulation of digital economy including privacy, financial regulation, etc
  3. Need for ease of doing business for start-ups
  4. Need for reforms in agricultural marketing, organic and natural farming,
  5. Need for storage infrastructure for agricultural produce,
  6. Need for focus on adapting renewable energy for economy and environment,
  7. Need for promotion of non-fossil fuel based energy,
  8. Need to ensure minimum wages of workers and skill development, etc.

The stakeholders put forth the following suggestions during the Pre-Budget Consultations:

  1. Introduction of incentives for encouraging the setting up of data centres and digital penetration in rural areas,
  2. Tax exemption for start-up units,
  3. Increased women employment and skill development schemes in India,
  4. Fiscal incentives to encourage farmers to maintain soil health, develop crop diversification, etc,
  5. Extend subsidy to producers of green manure, bio-fertilisers and bio-pesticides,
  6. Promote start-ups for research and development of new technologies in agriculture sector,
  7. Reduction of compliance burden on companies, simplification and rationalisation of labour laws,
  8. Enhanced availability of finance for renewable energy sector, lower lending rates, increased support for electric mobility, increased funds for handling environmental pollution, promotion of energy efficient technology for improving railway infrastructure, etc,
  9. Provision of social security to labour, enhanced allocation of funds for various Government schemes pertaining to skill development, job creation, etc.

A number of leading industrialists present in the Pre-Budget Consultations have also suggested various ways to achieve faster mergers and acquisitions, ways to reduce time involved in approving foreign direct investments, facilitate research and development to boost Make in India Scheme, etc. Further, the State Governments involved in the said Consultations also gave their suggestions on growth, investment, resource requirement and fiscal policies.

The Finance Minister, Smt. Nirmala Sitharaman, welcomed all the suggestions put forth by various stakeholders and further, assured the State Governments that the memorandums submitted by them would be examined and considered accordingly.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

SUPREME COURT HAS REJECTED PLEAS FOR REVIEW OF THE AYODHYA VERDICT

The Hon’ble Supreme Court of India has recently passed
an Order dated 12-12-2019, thereby dismissing the Petitions seeking review of the Supreme Court Judgment dated 09-11-2019, which awarded the Ram Janmabhoomi-Babri Masjid site for construction of a temple and a five acres land at another location to the Sunni Wakf Board for construction of a mosque.

Thereafter, a total of 18 Review Petitions were filed in the Hon’ble Supreme Court on 02-12-2019, 06-12-2019, and 09-12-2019 seeking review of the said Judgment dated 09-11-2019.

But the five-Judge Supreme Court Bench dismissed the said Review Petitions vide Order dated 12-12-2019 and held that the Apex Court did not find any ground to entertain the Review Petitions and held that “Applications for listing of review petitions in open court are dismissed. We have carefully gone through the review petitions and the connected papers filed therewith. We do not find any ground, whatsoever, to entertain the same. The review petitions are, accordingly, dismissed,”

Govind Gupta

Associate

The Indian Lawyer

HIGHLIGHTS OF CITIZENSHIP (AMENDMENT) ACT 2019

The Citizenship (Amendment) Act, 2019 (Amendment Act) has been recently passed by both Houses of Parliament and has also received Presidential assent on 12-12-2019. It aims at granting Indian Citizenship to persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities who have migrated to India after facing mistreatment on the ground of religious persecution in Pakistan, Afghanistan and Bangladesh.

As per the Citizenship Act 1955, citizenship is acquired in India, either by birth in India, or by descent, or through registration, or by naturalisation (extended residence in India), or by incorporation of a territory into India. Based on the given criteria for each type of citizenship, the Amendment Act aims at providing citizenship by registration or by naturalization to such refugees and exiles who have fled from Pakistan, Afghanistan and Bangladesh to India, seeking refuge of the Government of India so that they are able to lead a dignified life.

The following criteria laid down under the Amendment Act would be considered by the Central Government before granting citizenship to such refugees/illegal migrants residing in India:

1- The person has entered into the territory of India on or before 31-12-2014, or

2- The person has been exempted by the Central Government by or under the Passport (Entry into India) Act, 1920 or any rule or order made thereunder, or

3- The person has been exempted by the Central Government from the application of the Foreigners Act, 1946 or any rule or order made thereunder, or

4- The person has resided in India or has been in Central Government service for the last 12 months and at least 5 years of the preceding 14 years,

5- The person meets other criteria for grant of citizenship by registration or by naturalization laid down under the Citizenship Act 1955 as amended in 2019.

In the event that the refugees satisfy the aforesaid criteria, all the cases and legal proceedings pending against them in India would stand abated, and such refugees would no longer be treated as illegal migrants in India.

But the Act further states that it would not apply to certain areas as listed in the Sixth Schedule to the Constitution of India 1950 as amended thereof, including the tribal areas of Assam, Meghalaya, Mizoram or Tripura, and also areas including Manipur that come under ‘The Inner Line’ notified under the Bengal Eastern Frontier Regulation, 1873.

Further, the Union Minister for Home Affairs, Shri Amit Shah, has reportedly stated that this move would resolve the issues of North Eastern people, and 6 (six) minority communities who had faced abuse and exploitation on the ground of religious persecution in Pakistan, Afghanistan and Bangladesh and thus, had migrated to India. He further added that the reason for not including Muslim community under the said Amendment Act is that Muslim communities do not face religious persecution in these Islamic countries and besides, the Government of India, in the past 5 years, has already granted citizenship to more than 560 Muslims coming from these three countries.

However, various experts believe that the Act provides differential treatment to refugees on the basis of their country of origin, religion, date of entry into India, and place of residence in India. But the Act has failed to take into consideration other religious minority communities in Pakistan, Afghanistan and Bangladesh such as Ahmadiyya Muslims in Pakistan, who are considered non-Muslims in that country, and atheists in those three countries, who had migrated to India on the ground of religious persecution.

In response to all such criticisms, Shri Amit Shah reportedly stated that the Amendment Act has been introduced with the sole object of rectifying the mistake of partition of India that happened years ago on religious grounds and for protecting the interests of the refugees/illegal migrants in India.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

IMPLEMENTATION OF ZERO FIR IN INDIA

Generally, an ordinary FIR is filed, recorded and numbered in a police station within whose jurisdiction an incident takes place. Whereas, in the case of a Zero First Information Report (FIR), an FIR is only filed (and not numbered) in any police station regardless of where the incident has taken place. In such a case, the police station, later on, transfers the FIR to the police station that has the jurisdiction to investigation the matter.

The Provision of Zero FIR was introduced into Criminal Law (Amendment) Act, 2013, upon the recommendation of Justice Verma Committee, after the December 2012 Nirbhaya Rape Case. According to the said Report, if there is a failure in lodging a Zero FIR by any police officer, it would attract a rigorous imprisonment of six months extendable upto 2 years. Such act or omission may also invite departmental inquiry upon the officer.

Further, the Central Government has also asked all the State Governments to make amendments in state laws with respect to registration of Zero FIR. The main motive to introduce the concept of Zero FIR is to avoid delay in filing of offence and also to avoid wastage of time which otherwise would have an adverse impact on the victim. This would also help the police officers to arrest the offenders as soon as possible.

In today’s scenario, where grave offences like accident, murder and rape, demand immediate action from the authorities, a Zero FIR enables the police to take preliminary action against the offender, instead of deciding the territorial jurisdiction of the crime.

But various experts have reportedly stated that although provisions related to Zero FIR are in place, but the practical implementation is yet to be made. For instance, in the recent murder and rape case of Dr Priyanka Reddy in Hyderabad, her sister was made to run from one police station to another to lodge a FIR against the offenders. Thus, it is widely believed that it would take time and effort for creating awareness amongst the public about Zero FIR and then, for the Zero FIR concept to become a practical reality.

Aakritee Gambhir

Associate

The Indian Lawyer

SUPREME COURT HAS HELD THAT A MEMORY CARD IS A RELEVANT PIECE OF DOCUMENTARY EVIDENCE

In a recent case of P. Gopalkrishnan v/s State of Kerela & Anr, the Supreme Court has passed a Judgment dated on 2nd December, 2019, wherein,the central issue was whether the Accused was entitled to the copy of the contents of the Memory Card under Section 207 of the Code of Criminal Procedure 1973 as amended thereof.

The Petitioner sought a copy of a Memory Card that contains a video footage of the assault allegedly committed by his co-Accused at his behest. The relevant question was that would the Memory Card be considered a “material object” or “document” in the said case.

The Judgment referred to the following provisions that define certain records as documentary evidence:

  1. Section 3 of the Indian Evidence Act, 1872 as amended thereof – documentary evidence includes electronic record.
  2. So far, various courts have held tape records of speeches, and compact discs containing visuals etc., to be documentary evidence.
  3. Section 2(1)(t) of the Information Technology Act 2000 as amended thereof – “electronic record” includes ‘data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer ­generated micro fiche”.

The Apex Court herein considered Memory Tape as a documentary evidence based on the aforesaid principles and held that “On a bare reading of the definition of “evidence”, it clearly takes within its fold documentary evidence to mean and include all documents including electronic records produced for the inspection of the Court.”

GOVIND GUPTA

ASSOCIATE

THE INDIAN LAWYER