GOVERNMENT ISSUES GUIDELINES IN VIEW OF NOVEL CORONAVIRUS OUTBREAK 2020

The Ministry of Health, Government of India (Ministry) has recently undertaken several measures to prevent, control and/or curb the incidents of outbreak of Novel Coronavirus (Disease) in India. The Disease is said to be caused by certain kind of viruses that circulate amongst animals, such as camels, cats and bats, that infect people, thereby causing respiratory and other form of illnesses amongst people. The Disease was first detected in Wuhan City, Hubei Province of China in December 2019.

According to the Ministry, there is no specific vaccine to cure this Disease, but it has recommended supportive care to treat the said Disease. The Ministry has also issued the following guidelines in view of prevention and treatment of the said Disease:

1- Procurement of stocks of personal protection equipments such as apron, hand gloves, face shield, and masks, etc

2- Screening and surveillance of passengers at airports and sea-ports, etc

3- Creation of awareness amongst the public for prevention of Disease through personal hygiene, food safety, general hygiene, non-slaughter and non-consumption of weak animals, use of protective clothing at slaughterhouses and vet hospitals, etc.

4- Training of concerned medical personnel and health officials

5- Sample testing at hospitals

6- Ongoing deliberations by medical expert committees for formulation of a treatment protocol

So far, India has detected three patients in Kerala who may have contracted the Disease. The tests and treatments are ongoing. All the three patients had earlier travelled to Wuhan and had come back to India. Thus, the Government of India has advised Indian travellers to refrain from travelling to China and has also stopped issuing visas to foreign nationals travelling from China to India. The World Health Organization (WHO) has also recently published guidelines and instructions for general public as well as for healthcare officials.

As per various medical experts, the Government of India is taking adequate measures to prevent and curb the incidents of the Disease in India.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

FLIPKART AND AMAZON’S BATTLE AGAINST COMPETITION COMMISSION OF INDIA

Recently, Delhi Vyapar Mahasangh,a trader’s body filed a complaint with Competition Commission of India (CCI) against Flipkart and many other e – commerce giants for their luring discounts on smartphones and gadgets. The CCI ordered an investigation against Amazon and Flipkart. In return Flipkart filed a writ petition (W.P) in Karnataka High Court seeking to quash the order passed by the CCI which made Flipkart guilty of Anti- Competitive Practices.

Flipkart in its writ petition alleged that an investigation has been ordered by CCI without the existence of any “prima facie” case. Flipkart in its petition also states that there is no Anti-Competitive Agreement existing between Flipkart and other enterprises as per the allegations of Delhi Vyapar Mahasangh.  Flipkart furtheralleged that the order passed by CCI against Flipkart is contrary to the orders passed by the CCI in the past.

Further the Petition also mentions that back in April, 2019, the CCI had initiated a market study titled, “Market Study on E- Commerce in India”. When conducting the market study CCI had obtained submissions from various stakeholders. In the Market Study, the CCI had advocated for a “non-interventionist” and “self-regulation” approach towards e-commerce players.

Flipkart added that allegations made by Delhi Vyapar Mahasangh namely, “deep discounting, exclusivity arrangement and preferential treatment” all fall within the scope of Foreign Exchange Management Act. Also, the Enforcement Directorate is presently investigating Flipkart for the same allegations thus CCI has no locus standi to investigate the same case.

Lastly, Flipkart claimed, that the CCI order is contrary to the principles laid down by the Supreme Court in the case of CCI V. Steel AuthorityAIR 2010 where the Apex Court held that while passing an order under Section 26(1) of the Competition Act2002, the CCI has to express its mind in no uncertain terms that a “prima facie” case exists.

Thus, on the basis of above submission Flipkart prayed to quash the order passed by the CCI. Also, it pleaded to stay any further operations and investigations by CCI.

Earlier this month Amazon in the same case filed a petition in the Karnataka High Court to quash the order passed by CCI against them for their alleged violations of Competition Law.

In its Petition, Amazon stated that the CCI order was passed “without application of mind” and that it would cause irreparable loss to the reputation of the company if an investigation is allowed in the matter.The Karnataka High Court had granted Amazon an interim relief by staying all the investigation ordered by CCI.

Aakritee Gambhir

Associate

The Indian Lawyer

SUPREME COURT MANDATES THE PUBLICATION OF CRIMINAL ANTECEDENTS OF CANDIDATES IN LOK SABHA AND ASSEMBLY POLLS

The Hon’ble Supreme court vide Judgment dated February 13, 2020 in the case of Rambabu Singh Thakur v. Sunil Arora & Ors. Contempt Petition (C) No. 2192 of 2018 in Writ Petition (C) No. 536 of 2011 has made it mandatory forall the political parties to publish the criminal antecedents of the candidates in the Lok Sabha and Assembly Polls. Taking note of the increasing criminalisation of politics in India a bench comprising of Justices R.F. Nariman and S. Ravindra Bhat passed orders in the contempt petitions that were filed by Ashwini Kumar Upadhyay and Rambabu Singh Thakur complaining that the directions that were given by a Five Judge Bench of the Supreme Court in 2018 regarding decriminalization of politics in India were not implemented in the subsequent Assembly Elections and General Elections as the Election Commission of India failed to amend the Election Symbols Order and Model Code of Conduct to incorporate the orders passed by the Constitution Bench in 2018.

On September 25, 2018 a Five-Judge Bench of the Supreme Court had issued the following directions with respect to decriminalization of politics in India:

116. Keeping the aforesaid in view, we think it is appropriate to issue the following directions which are in accord with the decisions of this Court:

116.1. Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.

116.2. It shall state, in bold letters, with regard to the criminal cases pending against the candidate.

116.3. If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her.

116.4. The political party concerned shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.

116.5. The candidate as well as the political party concerned shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers.”

However, despite these directions there has been an alarming increase in the incidence of criminals in politics as in 2019, as many as 43% of MPs had criminal cases pending against them. Also, the political parties could not give an explanation as to why candidates with criminal cases pending against them were being selected as candidates in the first place. Taking into account all these facts, the Apex Court in exercise of the constitutional powers conferred on it under Articles 129 and 142 of the Constitution of India has issued the following directions:

  1. It shall be mandatory for political parties [at the Central and State election level] to upload on their website detailed information regarding individuals with pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the concerned Court, the case number etc.) who have been selected as candidates, along with the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.
  2. The reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere “winnability” at the polls.
  3. This information shall also be published in:
  4. One local vernacular newspaper and one national newspaper;
  5. On the official social media platforms of the political party, including Facebook & Twitter.
  6. These details shall be published within 48 hours of the selection of the candidate or not less than two weeks before the first date for filing of nominations, whichever is earlier.
  7. The political party concerned shall then submit a report of compliance with these directions with the Election Commission within 72 hours of the selection of the said candidate.
  8. If the political party fails to submit such compliance report with the Election Commission, the Election Commission shall bring such non-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of this Court’s orders/directions.

Suchitra Upadhyay

5th Year, GGSIP University, Delhi

Intern, The Indian Lawyer

THE IMPORTANCE OF SUPREME COURT LITIGATION

As India is a Quasi Federation, powers are divided between Union and State Governments. The Hon’ble Supreme Court being the federal Court of India acts as a final authority to see the division of powers as specified in the Constitution of India (Constitution) maintained by both Union and State governments.  

The Supreme Court exercises appellate and advisory powers and its jurisdiction may be divided into 3 categories namely: 

  • Original Jurisdiction
  • Appellate Jurisdiction
  • Advisory Jurisdiction

The Supreme Court in its original jurisdiction, under Article 131 of the Constitution, acts as guardian of the Indian Constitution and has an exclusive jurisdiction in cases between :

  1. Government of India and one or more State(s).
  2. Government of India and any State or states on one side and one or more other states on the other.
  3. Two or more states.

The Appellate Jurisdiction of the Supreme Court extends to all the cases of civil and criminal nature. Being the highest court of the country, all the appeals of such nature from the High Court lies with the Supreme Court. In Civil cases, an appeal can be made to the Supreme Court if :

  1. An appeal shall lie in the Supreme Court from any Decree, Judgement or Final Order in Civil Proceedings if:  
    • The case involves substantial question of law of general importance;
    • In the opinion of the High Court the said question of law needs to be decided by the Supreme Court.
  2. Where such question of law as to the interpretation of the Constitution has been wrongfully decided.
  3. Unless the Parliament provides, no appeal can lie with the Supreme Court from the Judgement, Order Or Decree by one Judge of the High Court.

In Criminal Cases, an appeal can be made to the Supreme Court if:

  1. Any Judgement, Final Order or Sentence in a criminal Proceedings from any High Court if the High Court has:
    • On appeal, reversed an order of acquittal of the accused and sentenced him to death.
    • Withdrawn for trial before itself from a subordinate court and has convicted the accused and sentenced him to death.
    • Any other case which is fit for appeal in the Supreme Court subject to the rules of the Court
  2. The Parliament may by law confer further powers on the Supreme Court to entertain and hear appeals.

As in criminal cases, it is necessary that an opportunity of fair trial is given to the accused/ convict to prove his innocence beyond reasonable doubt. The law recognises the principle of natural justice of audi alteram partem which means “listen to the other side” or in other words, the other party should be heard. It is a precedent law that, if there is a minute possibility of the accused being innocent he/she should be provided with that last opportunity in the highest court to prove his innocence.

Finally, the Advisory Jurisdiction of the Supreme Court, under Article 143, empowers the President to consult Supreme Court:

  • On a question law or fact, which is of public importance and has arisen or is likely to arise; or,
  • When the President refers a dispute for the opinion of the Supreme Court.

Furthermore, all these matters can be filed in the Supreme Court only through an Advocate on Record on any working day of the court. However, in certain exceptional cases matters may be listed or heard by a special bench during vacation of the Court. As the highest court of the country the Supreme Court does not hear each and every petition made to it rather only a certain number of petitions are entertained, namely:

  • Special Leave Petition under Article 136 where the Supreme Court in its discretion may allow Special Leave to appeal from any Judgment, Decree, Determination, Sentence or Order in any cause or matter passed or made by any Tribunal in the Country but will not include any Tribunals of the Armed Forces.
  • Appeals from any Judgment, Final Order or Decree
    • Appeals in Civil Matters (Article 133)
    • Appeals in Criminal Matters (Article 134)
  • Writ Jurisdiction where the Supreme Court can issue five main writs such as habeas corpus, prohibition, mandamus, certiorari and quo-warranto for enforcement of fundamental rights as given under part III of the Constitution.
  • Public Interest Litigation for the matters of public importance.
  • Suo Moto cognizance by the Court itself.
  • Review Petition where no appeal has been preferred.
  • Curative Petition where review petition has been dismissed.

The importance of Supreme Court litigation will always be there as the Supreme Court is the source of settlement of various important issues. There have been many cases where Supreme Court litigation has played a major role in deciding the dispute and maintaining harmony in the society. Some of such examples are:

  • Shayara Bano v. Union of India, 2017 or commonly known as Triple Talaq case:  In this case Talaq-e-bidat which gives the husband right to divorce his wife without her consent by simply uttering the word “Talaq” thrice in one sitting was examined by the Supreme Court. Also the practise of Nikah Halala, where if the divorced couple wants to remarry, the divorced wife would have to marry a second husband and consummate the marriage and only after obtaining a divorce from her second husband she could marry her first husband. It was held by the Hon’ble Supreme Court, with a majority of 3:2, that the practise of Talaq-e-bidat was unconstitutional and not an essential practise of Islamic religion. By this judgment the Supreme Court had made the practice of instant Triple Talaq punishable with maximum of three years imprisonment and a fine, but the offence has been allowed to be compounded(mutually settled).
  • M Siddiq v. Mahant Suresh Das, 2019 or as commonly known as Ram Janam Bhumi case or Ayodhya case stating that the dispute between the parties as held by the Allahabad High Court was upheld. The Judgement dealt with additional issues of whether (a) dividing the Ayodhya land title between the Sunni Waqf Board, Nirmohi Akhara and Ram Lalla was valid?; (b) the suits instituted by the Nirmohi Akhara as a rightful manager of Ram Janmabhoomi and suit instituted by Uttar Pradesh Sunni Central Board of Waqf for claiming possession of the mosque valid or barred by limitation; and (c) Is Ram Janmabhoomi a juristic entity, or is independent of the presence of idols? A Special Bench of 5 judges headed by Hon’ble Chief Justice of India, Mr. Ranjan Gogoi, hearing the matter on a day to day basis awarded the title to the deity, Shri Ram Virajman and also directed the State of UP to grant the Sunni Waqf Board an alternate site at Ayodhya for construction of the mosque.

It is important to mention here that as the Supreme Court mostly works as an appellate court, a litigant should keep in mind that proceedings of the Trial Court play an important part while determining the final order by the Supreme Court. The scope of Supreme Court litigation is not as vast as the Trial Court, which allows all kinds of matters to be heard and decided on facts and law. As the Trial Court is the court of origin and the court where the foundation is laid, the litigants approaching the Supreme Court would be advised to understand that the final result of a Supreme Court litigation has it’s basis in the Trial Court litigation. Hence all the litigants should be very careful in divulging facts, documents and evidence at the Trial Court. Most litigants who approach the Supreme Court come with a misguided concept that they would be able to get a favourable order, when their case has been mishandled in the lower courts but this is not the case.

Sushila Ram Varma                                                                                   
Chief Legal Consultant and Advocate                                

Rishabh Mahipal
Associate

CORPORATE INSOLVENCY RESOLUTION PROCESS AGAINST REAL ESTATE COMPANIES IS LIMITED TO THE DISPUTED PROJECT

Under the regime of Insolvency and Bankruptcy Code, 2016 (IBC, 2016) the process of Corporate Insolvency Resolution Process (CIRP) can be initiated by the Financial Creditor, Operational Creditor and Corporate Debtor itself.  In 2019, Supreme Court of India upheld the homebuyer’s rights at par with the Financial Creditor under the IBC, 2016. Resultantly, since 2016-17 several cases have been filed by the Flat Buyers’ before the National Company Law Tribunal (NCLT) against varied projects of Real Estate Developers. But the confusion arises in a case as to whether CIRP proceedings initiated by a flat buyer against one project of a Real Estate Company will affect its other group projects?

The National Company Law Appellate Tribunal (NCLAT) answered this question in the matter titled as Flat Buyers Association Winter Hills vs Umang Realtech Pvt. Ltd through IRP & Ors. [CA No. 926 of 2019] vide Order dated 04.02.2020, holding that any insolvency process initiated by a flat buyer or financial institution would be limited to the project in dispute only and not impact the other projects of the developer.

Justice S J Mukhupadhaya, while dealing with the aforesaid issue observed that the entire insolvency process initiated over the plea of a flat buyer or any other financial institution would be restricted to the project only. The order came over a petition filed by group of allottees- Flat Buyers Association Winter Hills-77, Gurgaon against Umang Real Tech Pvt. Ltd, (Corporate Debtor). It was considered in this case that if the same Corporate Debtor has any other project(s) in another town such as Delhi or Kerala, it cannot be clubbed together with the disputed projects nor the assets of the Corporate Debtor for such other projects can be utilized to pay the debt pertaining to the disputed project.

It was further, suggested that there should also be a reverse corporate insolvency process in such cases. In this regard, the NCLAT observed as, “we are of the view, that a ‘Reverse Corporate Insolvency Resolution Process’ can be followed in the cases of real estate infrastructure companies in the interest of the allottees and survival of the real estate companies and to ensure completion of projects which provides employment to large number of unorganized workmen.”.

It is also relevant to mention that, the NCLAT held in case the flat owners of such projects wish to seek a refund for the particular project of the Corporate Debtor which is undergoing insolvency, they are open to enter into an agreement, either with the interim resolution professional, or the promoter to find a new buyer and get the money refunded if and when that flat is sold.

This Order has taken care of the interests of real estate companies as well as the buyer as it has protected the group projects of a real estate company from falling within the CIRP proceedings. At the same time it has served the purpose of upholding the faith of other prospective buyers who have made investments in other projects of a corporate debtor.

Lakshmi Vishwakarma

Associate

The Indian Lawyer

THE SABARIMALA ISSUES THAT ARE TO BE DECIDED BY THE SUPREME COURT

The Sabarimala issue that is currently attracting attention across the nation is to be heard and decided by the Supreme Court’s Nine-Judge Constitution Bench. On 10 February, 2020 the Court’s Nine-Judge Constitution Bench decided that the issues that were earlier framed by the Five-Judge Bench is not focused on the legal issues of Sabarimala and as such the said issue should be enlarged and the Supreme Court should consider all legal issues pertaining to Sabaraimala. The Court’s Nine-Judge Constitution Bench, headed by Chief Justice S.A. Bobde, rejected the objections of Senior Advocates FS Nariman and Shyam Divan regarding the to a Five-Judge Bench’s decision last November and has decided to refer the following legal questions to a larger bench.

On 10 February, 2020 Court’s Nine-Judge Constitution Bench frames the following issues: –

  1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
  2. What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
  3. Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
  4. What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
  5. What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
  6. What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
  7. Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?

The court had then said adherence to “judicial and properties” was necessary. Since more than one petition was pending on the same, related or overlapping issues, it had said that all the cases would proceed together.

The Court also directed that one lawyer from each side will make leading arguments. They will also get one full day to argue. The Court will also give two hours to each lawyer to make supplementary arguments and these further arguments on merits, on question of law will be heard on 17 February, 2020.

GOVIND GUPTA

ASSOCIATE

THE INDIAN LAWYER

POINT BASED IMMIGRATION SYSTEM: POST BREXIT

United Kingdom (UK) has officially left European Union (EU) on 31st January 2020 and as of now is in the transitional period of 11 months which will end in the month of January 2021. And as on January 2021, UK will have two options: either to start a new relationship with EU or to exit transition without trade deal.

UK Government had earlier decided there will be targeted entry of the number of skilled workers. This has resulted in the desired downfall in the entry of the migrants in the Country to as low as 273,000 migrants in the last year which is expected to reduce further, in the coming years. The aim of the Government was “to ensure UK remains a hub for international talent from EU and the rest of the world.”

UK Government’s White Paper Immigration has promised a skills based immigration system for low skilled workers and has also proposed a threshold of £ 30,000/- p.a.. The White Paper shows that the Government wants to enact this by the end of 11 month transition period. It is clarified that low skilled workers, in particularly construction and social care would still be able to enter UK for up to 24 months, which includes a maximum period of 12 months and an additional cooling off period of 12 months.

Various strong statements have been made by the officials of the UK Government, such as “Most people coming into the country will need a clear job offer” a criteria set up to work in United  Kingdom. The best and the brightest applicants with a good grasp of English Language, a higher education qualification, and law-abiding citizens of their own country, are some of the requirements to qualify under this criteria. Another such statement made was ‘we can decide who comes to this country on the basis of the skills they have and the contribution they can make ’. As a Post-Brexit measure, visitors from low- risk countries in EU may still enter UK without a job offer and work up to one year provided they fall under the head of low-risk countries as defined by Home Office.

Point based system was firstly introduced in the year 2008, for non- EEA (European Economic Area). Under this point based system, it was provided that an individual would be allowed to visit UK without a guaranteed job in hand if he meets the necessary points criteria, which were to be given on the basis of the skills they possess and also visitors were allowed to set-off points in order to make up for the lack of every required skill (except the restricted Tier 2 sponsorship). But UK has become strict post-Brexit, in order to line up with the aim of limiting the entry of migrants, and as of now, a candidate would gain or lose a point on the basis of the criteria. It is suggested that UK may relax this policy in order to gain better control over the migrant’s entry. However, as of now, no such statement has been made public by the Government of UK.

Some of the main heads which were under the UK’s Points-based systems pre-Brexit are:  it covered various applicants spreading in different fields, covering from students to sportspersons; UK system approves applicants only if they have study/ job offer or endorsement from approved sponsor; Also it is required from the sponsors to undertake a ‘resident labour market’ test before filing a vacancy with a non EU applicant.

Currently UK has a dual system for foreign workers consisting of EEA workers and non EEA workers, wherein EEA workers can be of any skill level however, only highly skilled non EEA workers can be permitted under the specific work visa routes. It is proposed that the system will apply to both EE and non EEA workers and some of the key points includes abolishing ‘residential labour market’ test, abolishing the cap on tier 2 visa numbers, lowering the required job classification levels also the introduction of transitional route for workers for workers at all skill levels.

As post 31st January 2020, UK’s migrant system was employer driven, relying heavily on employers to decide the competence of the workers. A research carried on by National Institute of Economic and social research and CIPD (Chartered Institute of Personnel and Development) have found unambiguous results. The research concluded, most businesses hire EU applicants as they have difficulty attracting UK born applicants to unskilled and semi-skilled job. With the lack of clarity, businesses in UK will have to quickly adapt and be prepared for the new legislation Government will bring in.

Rishabh Mahipal

Associate

The Indian Lawyer

WHAT IS THE SABARIMALA ISSUE

Sabarimala Temple is a Shasta temple located at Sabarimala in the district of Pathanamthitta, Kerala, India.

In the past, menstruating age women devotees were not allowed to worship in the Temple. The High Court of Kerala in 1991 forbid women to enter the Temple.

In September 2018, the Hon’ble Supreme Court of India held that “admission to Sabarimala should be allowed to all pilgrims regardless of gender, including women in the menstruating-age group.” The Supreme Court’s Constitutional Bench further held that any exception placed on women because of biological differences is in breach of the Constitution and that the ban violates the Right to Equality under Article 14 and Freedom of Religion under Article 25.

This verdict has led to protests from some quarters. Despite threats of physical assault, several women have been bold and have tried to enter Sabarimala but have failed to reach the holy place.

In 2006 a Writ Petition was filed in the Hon’ble Supreme Court by the Indian Young Lawyers Association, seeking entry of women between 10 to 50 years. The Petitioners have averred that they are gender right activist working in and around the State of Punjab, with the focus on issues of gender equality and menstrual discrimination. In 2008 the matter was referred to a 3 Judges Bench.

In the instant proceedings, in 2008, the 3 Judge Constitution Bench in majority held that prohibiting women between the age of 10 to 50 years from entering the Sabarimala temple is violative of Article 25(1) and violative of Kerela Hindu Places of Public Worship Act 1965.

In January, 2016 the Supreme Court questioned the ban, saying it couldn’t be done under the Constitution. The United Democratic Front Government of Kerala, led by Chief Minister Oomen Chandy, informed the Hon’ble Supreme Court that it was duty-bound to protect the right to practice the religion of Sabarimala devotees.

In 2017 the Supreme Court referred the case again to the Constitution Bench. A five-judge Supreme Court Bench in September 2018 permitted women of all ages to join the revered shrine. The State Government sought time to implement the verdict, however even after the entry was allowed a large number of followers camped outside the shrine to prevent the entry of women of all ages.

In February 2019 a review petition was filed challenging the 2018 Supreme Court Order. The order was expected to be announced on 14 November, 2019 to either uphold or set aside the September, 2018 order.

But on 14 November, 2019 the Supreme Court referred the review plea to a larger bench and the matter was rescheduled for 06 February, 2019.

A Supreme Court’s nine-judge Constitution Bench on 06 February, 2020 reserved its order for Monday 10 February, 2020 on whether a five-judge Bench could have made a reference to the larger Bench for hearing the Sabarimala judgment. Upon pronouncing the decision, it is expected that the Court will frame issues to be decided by the Bench headed by Chief Justice S.A. Bobde and consisting of Justices R. Banumathi, Ashok Bhushan, L. Nageswara Rao, Mohan M. Shantanagoudar, S. Abdul Nazeer, Subhash Reddy, B.R. Gavai and Surya Kant.

GOVIND GUPTA

ASSOCIATE

THE INDIAN LAWYER

LAW RELATING TO ENCOUNTER KILLINGS BY THE POLICE

Police Encounters are also referred to as extrajudicial killing. The defense given by Police to justify such encounters is that it was done or carried out in their own self defense. The defense of encounter killing is only available to Police. On the contrary private defense is available to all citizens to confront with situations of grave danger to their life. Indian Penal Code (IPC), 1960 contains provisions related to private defense (Sections 96 to 100).

In Prakash Kadam vs Ramprasad Vishwanath Gupta AIR 2011, the Supreme Court held, “Fake encounters by Police are nothing but cold-blooded murders, and those committing them must be given death sentences, placing them in the category of rarest of the rare cases”.

Over the years there have been many instances when such encounters were done by the Police. Recently, in Hyderabad 4 rapist were shot dead on the crime scene. The Police justified their act by stating that it was done to safeguard their own life as they were attacked by them. Also, in PUCL vs State of Maharashtra AIR 2014 the Mumbai Police encountered 135 alleged criminals between 1995- 1997. Following which the Supreme Court laid down guideline and standard procedure to investigate a Police encounter. The Guidelines which were laid down are as follows:

  1. Whenever any Police Department receives any substantial information or tip regarding any grave criminal offence it must always be recorded in written or electronic form. Although it must not contain the details of the alleged accused or his/her location.
  2. Investigations of such encounters should be done in a transparent manner. It could be done by an independent Criminal Investigation Department (CID) team or by a team of another Police station under the supervision of Senior Officer.
  3. Reports of all such encounters must without any delays should be sent to a Judicial Magistrate.
  4. It is the duty of Police officers to inform National or State Human Right Commissions as the case may of any such encounters.
  5. In such cases of encounters there should be no delay in sending First Information Report (FIR), panchnamas, and Police diary entries to the concerned court for investigation.
  6. The dependants of the accused/ criminal must be informed immediately of such encounter.
  7. In such cases of encounters a request for grant of compensation to the dependents of victim must applied as per the provisions of Section 137-A of the Code of Criminal Procedure.
  8. The Police officers who was involved in such encounters must surrender their weapon for forensic and ballistic examination.
  9. No promotional or gallantry awards must be given to the Police officers immediately after such encounters.
  10. If the dependents of the accused/criminal thinks fit that the above laid procedure has not been followed then they can file a complaint with the Sessions Judge.

National Human Rights Commission former Chairman Justice M. N. Venkatachaliah said that, “there is lack of standing operating procedure when it comes to response by Police in panic situations”. The need of the hour is to train the Police personnel in such manner that they can deal with every dreadful situation. Police officers are known to be the guardian of law. If they take law in their own hands and mould it accordingly then the purpose of them being the guardian of law will not suffice.

Aakritee Gambhir

Associate

The Indian Lawyer

DOES THE LAW OF SEDITION IN INDIA PROTECT OR PROHIBIT RIGHT TO FREEDOM OF SPEECH AND EXPRESSION

Sedition is an exhaustive term, and it includes all those practices, which by word, gesture, or in writing prone to disturb the peace of the State, and lead ignorant persons to undertake to undermine the Government and various laws of the country.

Law of Sedition in India: Explained

The law considers all those practices as sedition which aims to excite dissatisfaction, to create public disturbance, or to bring into hatred or contempt to the Government, and generally all endeavor to promote public disorder. The law of Sedition has its existence under section 124A of Indian Penal Code (IPC). The following essential ingredients are required to be established or present to make any person liable under the said provision of IPC:

  1. Accused wrote or spoke or made signs or visible representation or did some other acts;
  2. Accused brought or attempted to bring hatred or contempt thereby;
  3. Accused excited or attempted to excite disaffection;
  4. Such hatred or disaffection was towards Government of India;
  5. Government was established by law

In recent time, we have heard of several numbers of incidents or cases where the charge of Sedition is a common response of the authorities faced with any act of dissent in India. In the last month there have been many reports of sedition cases being filed against people protesting against the Citizenship Amendment Act (CAA), National Register of Citizen (NRC) and National Population Register (NPR).

Application of Sedition Law: Response or Reaction

We have experienced in early January that sedition charges were filed against 3000 people for protesting against CAA in Jharkhand. Similarly, a sedition case was also filed against a student in Karnataka and a woman in Mumbai as they were holding placards carrying the message “Free Kashmir” during protests against CAA. Further, a Jawaharlal Nehru University student, Sharjeel Imam, is facing sedition charges in six states for his speech condemning CAA and violence in Assam. And the list is long enough to show that how the ambit of this law is so wide that it may easily restrict your liberty to put forward your dissenting perspectives. Apart from people participating in protests, sedition is also used to target students, activists, artists, intellectuals and other citizens. In real time, the ideology behind application of such law either as a response or reaction needs to be examined through the lens of just and fairness and keeping in mind the main object for which this provision has its emergence.

Sedition Law: Different Perspectives

In general perspective, Sedition law is defined to be vague and oppressive as it restricts the liberties of citizens to express and show their disagreement. On the contrary, in perspective of law this provision under IPC is intended to protect bone fide criticisms, to improve the conditions of the society and remedy the grievance of the people. In true sense, the explanations attached with Section 124A of IPC, give perfect freedom to criticize and improve disapprove the acts and measures of the Government. A citizen is free to speak and write as he thinks fit. But under the right of freedom he cannot invade the rights of the society, encourage insurrection and endanger public peace. The language may be forceful and strong to place legitimate and honest demands. It may be harsh and uncompromising. But it should not engender feelings of enmity, hatred and disloyalty against the Government.

Application of Sedition by the Government in cases like protests against CAA and NRC cases have become mandatory as the leaders of these protests were trying to mislead the protestors into believing that CAA and NRC were taking away their rights when the same was totally incorrect. In the recent times, these are probably the best examples of seditions being applied to facts.

Lakshmi Vishwakarma

Associate

The Indian Lawyer