SUPREME COURT REITERATES THE PRINCIPLES OF VALID EXECUTION OF WILL

The Supreme Court has in a recent case of V. Kalyanaswamy (D) by Lrs and Another vs L. Bakthavatsalam (D) by Lrs. And Others passed a Judgment dated 17-07-2020 and held that the Will dated 10-05-1955 (#Will) executed by Late Mr Rangaswami Nadu (#Testator) was valid and lawful in nature.

In this case, Late Mr Rangaswami Nadu along with his brother, Late Mr Lakshmiah Naidu had constituted a Joint Hindu Family business. But thereafter, owing to an illness, he executed the Will in which he bequeathed his share in the #JointHinduFamily property and self-acquired #properties in favor of his wife.

Later, upon the death of Mr Rangaswami Nadu, his wife filed civil suit in Civil Court of #Coimbatore for declaration of title to such properties and recovery of mesne profits from defendants, who were the sons of Late Mr Lakshmiah Naidu and were in possession of such properties. The Court allowed the same.

Thereafter, a string of cases were filed in the Civil Courts of Coimbatore by the nephews of Late Mr Rangaswami Nadu, thereby claiming share in the bequeathed property on the ground that they were a part of the Joint Hindu Family property and that they were rightfully entitled to a share in such properties. But each time, the parties entered into a compromise and in accordance with which, all the parties received some share in the properties. But one, Mr. V. Kalyanaswamy, another nephew of the deceased Testator, i.e. the Appellant herein, later challenged the validity of the Will on the ground that the Will was executed under coercion, undue influence or fraud exercised by the Respondents and further, that any will executed by a coparcener of his undivided interest in the Joint Hindu Family Property is illegal and invalid as per the Hindu Law of Succession.

The Supreme Court made the following observations about validity of the Will in this case:

(1)        The Will in this case was an unprivileged will under Section 63 of the Indian Succession Act 1925. As per the said provision, the testator has to sign the will in presence of two or more witnesses, and the witnesses shall attest the said will in the presence of the testator.

(Clarification for Readers-Section 63 deals with proving a document by way of secondary evidence. For instance (a) a photograph of an original is secondary evidence of its contents, if it is proved that the thing photographed was the original. Or (b)A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.)

(2)        Further, in order to test the genuineness of the testamentary document, i.e. a will, as per the terms of Section 68 of the Indian Evidence Act 1872, one of the attesting witnesses named in the will has to prove that the will had been duly executed by the testator in presence of at least two witnesses and that the other witnesses had also duly attested the will.

(Clarification for Readers-Section 68. Proof of execution of document -If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence)

(3) In the event that the attesting #witnesses have died or are unable to physically come to court or they have become insane, etc, in such circumstances, the will may be proved as per Section 69 of the Indian Evidence Act 1872, one has to prove that the attestation of at least one attesting witness and signature of the Testator are in their respective handwritings.

(Clarification for readers Sec. 69 Proof where no attesting witness found. If no attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.)

(4)        But where the attesting witness denies or does not recollect #execution of the will, then Section 71 of the Indian Evidence Act 1872 provides thatin such cases, the will may be proved by producing some other evidence.)

(Clarification for Readers Section 71.  If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.

(5)        But in the present case, the Appellants failed to prove that the Will was made out of coercion, fraud or undue influence.

Thus, the Apex Court upheld the validity of the Will on the ground that firstly, the deceased Testator had clearly mentioned in his Will, all the details of the properties that would be bequeathed to his wife and the manner in which she would have to use the said properties. Secondly, that prior to the passage of Hindu Succession Act 1956, a #Hindu was allowed to bequeath his interest in the joint family property to another person during the period when the joint family status was intact. Therefore, the Supreme Court dismissed the Appeal filed by the Appellants.

SUSHILA RAM

Chief Consultant

The Indian Lawyer

SUPREME COURT REITERATES THAT RESTRICTIONS ON SPECIAL REMISSION POWERS DO NOT APPLY TO GOVERNORS OF STATE

The three Judge Bench of the Supreme Court in the recent case of Pyare Lal vs State of Haryana passed a Judgment dated 17-07-2020 and held that restrictions imposed under Code of Criminal Procedure 1973 on the powers to grant special #remission to certain category of #convicts, would not apply to the #constitutional powers exercised by the #Governors and #President of #India.

In the present case, the Appellant, aged about 75 years, was convicted for an #offence punishable under Section 302 of the Indian Penal Code 1860 (#IPC), whereby, he was undergoing life imprisonment for a period of 14 years. The Government of Haryana had passed an Order dated 02-08-2019, whereby, the Governor of #Haryana could exercise his powers under Article 161 of the #Constitution of India 1950 to grant special remission to certain category of convicts including those who have been sentenced for life imprisonment and are aged 75 years or above, have completed 8 years of actual sentence in case of male convicts and 6 years of actual sentence in case of female convicts and who have had satisfactory conduct in jail, etc. Thus, as the Appellant fulfilled the said criteria, he was prematurely released in 2019. Thereafter, the Appellant filed an Application for Bail in the Supreme Court.

The Apex Court made the following observations about premature release of criminals convicted with an offence punishable under Section 302 of IPC, i.e. punishment for murder, as per the Order of Haryana Government dated 02-08-2019:

1- That Section 433 A of Code of Criminal Procedure 1973 provides for certain restrictions of the powers of remission in cases, where a sentence of imprisonment for life is imposed on convict for an offence for which death is one of the punishments provided by law. But the Supreme Court held that such kind of restrictions on powers of remission would not apply to sovereign and constitutional powers of the Governor and the President of India.

2- That before exercising the powers to grant of special remission to a convict under Article 161 of the Constitution of India, the Governor need not check into the severity of the crime committed by the offendor or the impact such a crime had on the society, unless specific facts were placed before him.

3- In this present case, the Government of Haryana did not place before the Governor the specific facts, details, nature and severity of the crime committed by the Appellant, as a result of which the Governor simply granted remission to the Appellant.

But as the State of Haryana argued that while passing the Government Order dated 02-08-2019, they relied upon earlier Supreme Court Judgments including Maru Ram vs Union of India (1981) 1 SCC 107, where the 5-Judge Constitution Bench laid down that the State need not create a separate order for each case, but to only create a general order to identify a group of cases for the purpose of deciding whether to grant special remission or not.

Thus, the Apex Court referred this matter to a larger bench to decide the correctness of exercise of powers by the Governor in this matter.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

CONSUMER PROTECTION (E-COMMERCE) RULES, 2020 NOTIFIED

Recently, the #Ministry of Consumer Affairs, Food and Public Distribution, Department of Consumer Affairs, has notified the Consumer Protection (E-Commerce) Rules, 2020 (‘E-Commerce Rules’), vide Notification dated 23.07.2020. It is understood that #electroniccommerce includes the production, advertisement, sale and distribution of products via telecommunication networks. The Government has notified new rules for such e-commerce entities or companies and introduced new changes that need to be followed.

The new rules will be applicable to all retailers selling goods via electronic transactions on the Internet (‘e-tailers’), which are registered in India or abroad, but offering goods and services to Indian consumers. These rules shall not apply to any activity of a natural person carried out in a personal capacity that are not being part of any professional or commercial activity undertaken on a regular or systematic basis. These Rules broadly covers the duties, responsibilities and liabilities of e-tailers, following marketplace and inventory models to offer all goods and services over digital or electronic network including digital products.

Highlights of the E-Commerce Rules, 2020

  1. Display Details: It is now incumbent on every e-commerce entity to provide the following information in a clear and accessible manner on its platform, displayed prominently to its users, namely:-
  2. Registered name of the e-commerce entity;
  3. Origin of the goods and address of its headquarters and all branches;
  4. Contact details like e-mail address, fax, landline and mobile numbers of customer care as well as of grievance officer.
  1. Grievance Redressal Mechanism: Under the new rules, it is mandatory for every e-commerce entity to establish an adequate grievance redressal mechanism having regard to the number of grievances ordinarily received by such entity from India, and shall appoint a grievance officer for consumer grievance redressal, who will acknowledge the receipt of any consumer complaint within 45 hours and redresses the complaint within one month from the date of receipt of the complaint. They are also required to provide a ticket number for each complaint lodged, through which the consumer can track the status of the complaint.
  2. Cancellation Charges: It is also being notified that no e-commerce entity shall impose cancellation charges on consumers for cancelling after confirming purchase, unless similar charges are also borne by the e-commerce entity, if they cancel the purchase order unilaterally for any reason.
  3. Consent of Consumers: It is also specified in the new rules that e-commerce entities shall not record consent of its users or consumers automatically in the form of pre-ticked checkboxes. The consent of a consumer for the purchase of any good or service offered on its platform, shall only be recorded, where such consent is expressed through an explicit and affirmative actions.
  4. Price of Goods and Services: As per the E-Commerce Rules, the entities are not allowed to “manipulate the price” of the goods and services offered on their platforms to gain unreasonable profit and discriminate between consumers of the same class or make any arbitrary classification of consumers affecting their rights under the Act.
  5. Undertaking from the Sellers: The E-Commerce Rules also specified liabilities of an e-commerce entity which provides an information technology platform on a digital or electronic network to facilitate transactions between buyers and sellers. It makes incumbent upon them to take an undertaking from sellers to ensure that descriptions and other content pertaining to goods or services on their platform is accurate and corresponds directly with the quality and other general features of such good or service.
  6. Display of Sellers Information: As per Rules, it is also important for a marketplace e-commerce to display the information prominently to its users on its platform all the details about the sellers from which goods are purchase or services offered, including the name of their business, whether registered or not, their geographic address, customer care number, any rating or other aggregated feedback about such seller, and any other information necessary for enabling consumers to make informed decisions at the pre-purchase stage.
  7. For an effective dispute resolution the entities must provide the information regarding the seller on a request of a consumer in writing, after the purchase of any goods or services on its platform.
  8. Every marketplace e-commerce entity shall take reasonable efforts to maintain a record of relevant information allowing for the identification of all sellers who have been previously removed. It shall further maintain a record of such sellers who have been disabled under the Copyright Act, 1957 (14 of 1957), the Trade Marks Act, 1999 (47 of 1999) or the Information Technology Act, 2000 (21 of 2000).
  9. These Rules have also restricted the usual practice by the sellers to post good reviews about the goods or services by representing themselves as a consumer on online platforms and misrepresent about the quality or the features of any goods or services.
  10. It is also mandatory for all the sellers offering goods or services through a marketplace e-commerce entity to have prior written contracts in order to undertake or solicit such sale or offer and display on its platforms all contractual information required to be disclosed by law.
  11. The same duties and liabilities with regard to display and adherence of rules are also specified for inventory e-commerce entities. They also have to ensure that the advertisements for marketing of goods and services are consistent with the actual characteristics, access and usage conditions of such goods or services.
  12. Under the new rules, no inventory e-commerce entity will be allowed to refuse to take back goods or withdraw or discontinue services purchased or agreed to be purchased, among others, subject to various conditions.

Any e-commerce entities operating in contravention of these E-Commerce Rules shall be liable under the provisions of the Consumer Protection Act, 2019.

Lakshmi Vishwakarma

Associate

The Indian Lawyer  

ABOUT CORONAVIRUS

From Dr. Anthony Fauci:


“Chickenpox is a #virus. Lots of people have had it, and probably don’t think about it much once the initial illness has passed. But it stays in your body and lives there forever, and maybe when you’re older, you have debilitatingly painful outbreaks of shingles. You don’t just get over this virus in a few weeks, never to have another health effect. We know this because it’s been around for years, and has been studied medically for years.


Herpes is also a virus. And once someone has it, it stays in your body and lives there forever, and anytime they get a little run down or stressed-out they’re going to have an outbreak. Maybe every time you have a big event coming up (school pictures, job interview, big date) you’re going to get a cold sore. For the rest of your life. You don’t just get over it in a few weeks. We know this because it’s been around for years, and been studied medically for years.


HIV is a virus. It attacks the immune system and makes the carrier far more vulnerable to other illnesses. It has a list of symptoms and negative health impacts that goes on and on. It was decades before viable treatments were developed that allowed people to live with a reasonable quality of life. Once you have it, it lives in your body forever and there is no cure. Over time, that takes a toll on the body, putting people living with HIV at greater risk for health conditions such as cardiovascular disease, kidney disease, diabetes, bone disease, liver disease, cognitive disorders, and some types of cancer. We know this because it has been around for years, and had been studied medically for years.

Now with COVID-19, we have a novel virus that spreads rapidly and easily. The full spectrum of symptoms and health effects is only just beginning to be cataloged, much less understood. So far the symptoms may include: Fever Fatigue Coughing Pneumonia Chills/Trembling Acute respiratory distress Lung damage (potentially permanent) Loss of taste (a neurological symptom) Sore throat Headaches Difficulty breathing Mental confusion Diarrhea Nausea or vomiting Loss of appetite Strokes have also been reported in some people who have COVID-19 (even in the relatively young) Swollen eyes Blood clots Seizures Liver damage Kidney damage Rash #COVID toes (weird, right?)


People testing positive for COVID-19 have been documented to be sick even after 60 days. Many people are sick for weeks, get better, and then experience a rapid and sudden flare up and get sick all over again. A man in Seattle was hospitalized for 62 days, and while well enough to be released, still has a long road of recovery ahead of him. Not to mention a $1.1 million medical bill.#


Then there is MIS-C. Multisystem inflammatory syndrome in children is a condition where different body parts can become inflamed, including the heart, lungs, kidneys, brain, skin, eyes, or gastrointestinal organs. Children with MIS-C may have a fever and various symptoms, including abdominal pain, vomiting, diarrhea, neck pain, rash, bloodshot eyes, or feeling extra tired. While rare, it has caused deaths.


This disease has not been around for years. It has basically been 6 months. No one knows yet the long-term health effects, or how it may present itself years down the road for people who have been exposed. We literally *do not know* what we do not know.

For those in our society who suggest that people being cautious are cowards, for people who refuse to take even the simplest of precautions to protect themselves and those around them, I want to ask, without hyperbole and in all sincerity: How dare you? How dare you risk the lives of others so cavalierly. How dare you decide for others that they should welcome exposure as “getting it over with”, when literally no one knows who will be the lucky “mild symptoms” case, and who may fall ill and die. Because while we know that some people are more susceptible to suffering a more serious case, we also know that 20 and 30-year-olds have died, marathon runners and fitness nuts have died, children and infants have died.


How dare you behave as though you know more than medical experts, when those same experts acknowledge that there is so much we don’t yet know, but with what we DO know, are smart enough to be scared of how easily this is spread, and recommend baseline precautions such as:Frequent hand-washing Physical distancing Reduced social/public contact or interaction Mask wearing Covering your cough or sneeze Avoiding touching your face Sanitizing frequently touched surfaces
The more things we can all do to mitigate our risk of exposure, the better off we all are, in my opinion. Not only does it flatten the curve and allow health care providers to maintain levels of service that aren’t immediately and catastrophically overwhelmed; it also reduces unnecessary suffering and deaths, and buys time for the scientific community to study the virus in order to come to a more full understanding of the breadth of its impacts in both the short and long term.
I reject the notion that it’s “just a virus” and we’ll all get it eventually. What a careless, lazy, heartless stance.”

Dealing with the Dragon

It sounds cliché to blame the British Raj for our present domestic and international problems. Unfortunately thanks to the British legacy, we are still grappling with the problems left by them. The present Indo-china dispute can be attributed to the British Raj, though it is difficult to say if they did it unknowingly or on purpose; to keep things contentious so that people squabbled with them even after their departure.

The present Indo China border dispute is indeed the making of the British. They defeated the Sikhs in 1845 and chose to govern the Kashmir & Ladakh by their proxy Dogra king, Gulab Singh. While they demarcated their boundaries on the western and southern sides, they left the eastern border with China un-demarcated. It was to be later demarcated by their appointed commissioners. This would be the area of Aksai Chin where both former colonies of the British would be staking their claims years after they left.

After defeating the Sikhs in the last Anglo Sikh War, the British forced Sikhs to sign a non-aggression treaty. They also signed Amritsar Treaty with their proxy Dogra King Maharaja Gulab Singh in February 1846 establishing their suzerainty often referred to as paramountcy over the state of Kashmir. They left the administration to Maharaja Gulab Singh, their proxy.

The whole mountainous area lying east of Indus River was left undefined. It was indeed a controversial decision that left a boundary of around 2150 kilometers un-demarcated which is a bone of contention between India and China even today.

Later WH Johnson was entrusted with the job boundary demarcation. He proposed the boundary line in 1865 which envisaged Aksai Chin as part of Kashmir. This was a unilateral decision but China did not object to it. Later McCartney-MacDonald in 1899 was entrusted to the same job. They suggested a new demarcation with included part of Aksai Chin within China by treating Indus watershed as the border. The Indus valley includes Galwan valley as it is the tributary of Shyok which is the tributary of Indus.

The demarcation was done on the basin boundaries rather than military control over the territory. This was the last British demarcation of the Indo China border and continued till 1947 and beyond. The Chinese Government on its part didn’t react to the proposal of 1899 but the British Indian Government on its own went ahead with Johnson line.

India has a reasonably strong case for Aksai Chin because there is evidence for it. If Amritsar Treaty, Johnson line, and McCartney-MacDonald’s demarcation are taken into account. Indian Rulers controlled the region militarily as well. They built a fort to protect trading caravans at Xaidullah. Dogras had traditionally established firm control over Ladakh under the suzerainty of first under the Sikh Empire and later under the British.

Even China had accepted this reality. There is evidence to show that China had informally accepted the Johnson line. The “Postal Atlas of China”, published by the Government of China in 1920s showed the boundary in Aksai Chin as per the Johnson line. The “Peking University Atlas”, published in 1925, also showed Aksai Chin in India

Galwan valley falls under India even by applying McCartney-MacDonald line of 1899. Thus, China has no claim over the entire Galwan valley. At present, LAC cuts through Galwan valley above 6 km from its confluence with Shyok River! So based on the historical evidence India has a very strong legal case.

The fact of the matter is that no official boundary had ever been settled between China and India. The India claims a boundary in the western sector similar to the Johnson Line of 1865, whereas China considers a line similar to the McCartney–MacDonald Line of 1899 as the boundary

Now here is the interesting part. Why this kind of loose border been allowed by the two regional powers for so long? Why did not china tried to assert its position all these years and why now? Why haven’t India asserted its claim all these years and why we are so bogged up by Chinese action now?

The answer is rather simple. No one cares. As Nehru ones put it, ‘not a blade of grass grows there’. And that is largely true. Apart from strategic and psychological value, there is not much for anyone there to fight for. The weather and difficult terrain is the number one enemy in the region. If the stakes were high enough the Indian and Chinese teams wouldn’t be patrolling the area with sticks and torches.

As they say, History repeats itself. It was not for the piece of land that China attacked India in 1962. China attacked India despite bonhomie and goodwill due to its domestic reasons. In the 1960s the Cultural Revolution wasn’t yielding good results and people’s unease was rising. The Chinese rulers wanted a mood swing and what better than an unnecessary war.

The conditions again are grim for china domestically as well as internationally. It has evolved as a merchant nation whose well being depends on business sentiment. It is flexing its muscle to ensure its empire consolidates. This is actually annoying other countries including the USA. Hence the South China Sea, Hong Kong, and India. But it makes a big mistake. It is alienating itself further while India gets the brownie points and international support. War and business don’t go hand in hand.

Now the big question for us is how do we deal with the dragon? By sending troops to the border and engaging in a limited war, or by cutting Chinese imports to bleed China economically or by indulging in a diplomatic and legal tussle.

Let’s examine the options one by one. Though India not India of 1962 and is a formidable power but so is China. Even if we can inflict damage on China we must be prepared for collateral damage. War with China would not be easy or short. And there is a real chance of limited war becoming a full-scale war to nuclear war! Besides, it will do us big harm economically and we cannot afford to speed up the economic slowdown.

Coming to the Economic offensive, we are a net importer of Chinese goods but, our share of Chinese exports is two percent. It will hurt China but not to the extent of crippling it. We will again risk the slowdown of the economy if we do it in a rush of blood without any preparations. For example, Chinese input into India’s solar power is substantial; blocking the imports would mean putting a break on our quest for clean energy.

Now a viable option is a diplomatic and legal engagement which is as mentioned earlier is our forte. India can easily show to the world that the Chinese are indeed indulging in self-aggrandizement and discredit it worldwide. Today the world sentiment is against China and India is the flavor of the day. Rather than sending jets, we would do well to send our lawyers to the international court of justice. We have a very strong case and we are likely to muster more moral support that way.

Even if things don’t go in our favor for some reason we don’t lose any territory as the international court’s order is not binding. A clear win-win situation – Without incurring any loss of men and machines we can achieve our desired goal. If China does not fight us in the international court of justice even better. We have scored an outright victory and if it comes pleading it would be red-faced. This is not to suggest that it would immediately vacate the area or surrender. But it will eventually have to give in. It is also not to suggest that we should not deploy more army or not make our economy less dependent upon China. The present border dispute is an opportunity to settle the matter once and for all amicably. An opportunity to correct the British mistake made 174 years ago!


Article By: Dr Kislay Panday, Solicitor, Supreme Court of India

SUPREME COURT HELD THAT ROYAL FAMILY HAS CONTROL OVER KERALA PADMANABHA SWAMY TEMPLE

In a recent case of Sri Marthanda Varma (D) through L.R.s vs State of Kerala, a two-Judge Bench of the #SupremeCourt has passed a Judgment dated 13-07-2020 and held that the #abolition of #privypurses and #derecognition of #Rulers of Indian States under the Constitution (Twenty-Sixth Amendment) Act, 1971, did not take away the rights of the Ruler of Travancore and his descendants to supervise and have control over administration of Sri #PadmanabhaSwamy #Temple (the Temple) in #Thiruvananthapuram, #Kerala and the #properties thereof.

In this case, the Apex Court noted that Late Sree Chithira Thirunal Balarama Varma was the Ruler of State of Travancore and after his death, his younger brother, Mr. Uthradam Thirunal Marthanda Varma (the Appellant No. 1 herein) wanted to claim ownership, control and management of the ancient and great Temple. Thus, a Writ Petition was filed by him in the High Court of Kerala, which held that the Appellant No.1 could not claim to be in control or management of the Temple as successor to the last Ruler, on the ground that the Constitution (Twenty-Sixth Amendment) Act, 1971 and Article 363A of the Constitution of India 1950 terminated the privy purses and privileges of the Rulers of former Indian States. Thus, an Appeal against the said High Court Order has been filed before the Supreme Court.

The Apex Court made the following important observations in this case:

  1. That although the Temple was later taken over by Travancore Devaswom Board constituted under the Travancore-Cochin Hindu Religious Institutions Act, 1950 (the TC Act), the management and control over administration of the Temple and the properties thereof remained in the hands of the Ruler of Travancore.
  • That the descendants of the Ruler of Travancore continued to serve as ‘Dasas’, or servants of the deity in the Temple.
  • That based on the historical accounts, customary beliefs and practices, it was observed that the Ruler and his family members had deep involvement in the rituals and affairs of the Temple.
  • That although the concept of privy purses and rulership have been abolished by the Constitution (Twenty-Sixth Amendment) Act, 1971, but the private properties of the Ruler such as a sword, ceremonial weapon, or jewellery, etc, continued to remain available to the Ruler and his family members for normal succession and devolution under the law.

Thus, based on the aforesaid reasons, the Apex Court held that the administration of the Temple and the properties thereof that earlier vested in the Ruler of Travancore, would continue to be under the control and supervision of the Ruler and his natural successors.

Further, the Supreme Court constituted an Administrative Committee and Advisory Committee to work for a period of four months towards preservation of all the treasures belonging to the Temple, arrangement of audit of the Temple accounts for the last 25 years, maintenance of the Temple properties, etc. The Apex Court further directed the Committees to file the report by December 2020 in order to inform the Court about the developments in the said matter.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

SUPREME COURT CLARIFIES LAW ON ADMISSIBILITY OF ELECTRONIC EVIDENCE

The #InformationTechnology Act, 2000 which deals with digital and electronic records and documents had brought in its wake amendments in the #EvidenceAct 1872  (‘the Act’) to enable legal recognition of such digital and electronic documents. The law mandates any documentary #evidence by way of an electronic record under the Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65 B. Section 65 B deals with the admissibility of #electronicrecords. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer.

Sections 65 A and 65 B of the Act, deals with electronic evidence and its admissibility in the Indian Legal System. In this article, the main discussion will be with respect to the requirement of a Certificate under Section 65 B (4) of the Act and the recent judgment on this point.

There is no ambiguity with regard to the fact that electronic records can be used as evidence. However, there is lack of clarity with regard to the procedure for admissibility of electronic evidence under Section 65 B (4) of the Act. The Supreme Court opined in the case of Anvar P.V. vs. P.K. Basheer, (2014) 10 SCC 473,that any electronic evidence can be proved only in accordance with the procedure prescribed under Section 65 B of the Act. The Supreme Court in this case held that the purpose of these provisions is to sanctify electronic evidence. The necessity of giving an electronic certificate as required under Section 65 B is mandatory for treating such evidence as admissible in law.

Recently, three Judges Bench of Hon’ble Supreme Court of India in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, CA Nos. 20825-20826/2017 passed a Judgment dated 14.07.2020 dismissing the Appeals and holding that the certificate required under Section 65B (4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P. V. case.

The brief facts of the case is pertaining to the controversy that arose between the Appellant and the Respondent who were the nominees in an election. The dispute between the Parties related to their nomination papers in the election procedure. Election Petition was filed by the Appellant. During trial the Respondent relied on certain CDs/VCDs from the election office as evidence. The Appellant objected on the admissibility of the CDs/VCDs in the court as the said evidence was not supported by the ‘necessary certificate’ under Section 65 B of the Act. However, the High Court of Bombay relied on the statement of the CDs/VCDs operator in cross-examination that the said recordings were regularly recorded in the office and admitted the CDs/VCDs in evidence. Based on the said evidence without certificate, High Court declared election of the Appellant as void. High Court Order was challenged before the Supreme Court which referred the case to a larger bench of 3-Judges to decide on the issue of judicial interpretation of Section 65 B of the Act.

The Court was hearing a reference from the Division Bench, of the case reported as Shafhi Mohammad vs. The State of Himachal Pradesh [(2018) 2 SCC 801] which had ‘clarified’ that the requirement of a certificate under Section 64 B (4) being procedural, can be relaxed by the Court wherever the interest of justice so justifies, and one circumstance in which the interest of justice so justifies would be where the electronic device is produced by a party who is not in possession of such device, as a result of which such party would not be in a position to secure the requisite certificate.

Additionally, the issue was raised in Appeals in Arjun Panditrao Khotkar case that the law laid down in Anvar P. V. case requires reconsideration. However, the 3-Judges Bench held that the Shafhi Mohammad Judgment  was incorrect and the law laid down in Anvar P. V. case is the correct law and as such does not require to be revisited.

In a reference the Court dealing with the interpretation of Section 65 B of the Act that deals with admissibility of electronic records, the Court clarified that the required Certificate under Section 65 B (4) is not essential if the original document itself is produced. It also held that if a certificate which is a pre-requisite for admissibility of evidence under Section 65 B cannot be obtained as the person or authority concerned ‘refuses’ to share it, then summons could be sent by the court to such person or authority to produce it. This is subject to discretion being exercised in civil cases in accordance with law, and the requirements of justice on the facts of each case.

Therefore, in light of the rapid increase in the use of computer and internet, electronic and digital documents in India, the Supreme Court has upheld the mandatory requirement of compliance under Section 65 B of the Act for admissibility of electronic evidence. 

Lakshmi Vishwakarma

Associate

The Indian Lawyer & Allied Services

LEGAL IMPLICATIONS OF DEATH CAUSED IN POLICE ENCOUNTERS

In the recent times, it has been observed that a number of alleged #criminals have been killed in #police #encounters in India. Most recently, an infamous gangster, namely, #VikasDubey, was reportedly killed in an encounter by the #UttarPradesh (UP) Special Task Force (STF) on 10-07-2020, when the vehicle of the police convoy in which he was being brought to #Kanpur, overturned and he tried to flee. The gangster along with his accomplices had earlier allegedly killed eight UP police officers in an ambush in Bikru village near Kanpur.

The term ‘#policeencounter’ generally means an extra-judicial killing of suspected criminals by the police, apparently in self-defense. Section 46 of the Code of Criminal Procedure 1973 (#CrPC) provides that if a person to be arrested either forcibly resists the police officer’s action to arrest him, or tries to evade such arrest, the said police officer may use all necessary means required to effect the #arrest. However, the police officer cannot cause the death of the person, who is not accused of an offence punishable with death or with imprisonment for life.

Section 197 (1) of CrPC provides that a #complaint may be made against a public servant, thereby accusing him of the offence committed during the discharge of his official duties, only after obtaining a prior sanction of the Government.

Further, the #SupremeCourt in People’s Union for Civil Liberties & Anr. vs State of Maharashtra & Ors. Passed a Judgment dated 23-09-2014 and made the following observations regarding police encounters:  

1- The Apex Court condemned police encounters as it is not recognised by our criminal justice administration system. Although there are genuine circumstances when police officers, while performing their duty, have been attacked and killed. So only in such genuine circumstances, the #policeofficers are allowed to take action to protect themselves.

2- The Supreme Court has further laid down standard #guidelines for thorough investigation in the cases of death and grievous injury caused in police encounters. The important guidelines have been listed below:

i) Police to record tip-offs received about criminal movements or activities in writing or in electronic form.

ii) Police to register FIR regarding death caused in an encounter with the use of firearms and to forward the same to court under Section 157 CrPC.

iii) Senior police officials to conduct independent investigation in such cases.

iv) Magistrate to conduct proper inquiry and send report of the same to Judicial Magistrate.

v) To inform the National Human Rights Commission (NHRC) about such incident/encounter. Unless required, NHRC may not be involved for investigation.

vi) To inform the next of kin of the deceased-alleged criminal and the police officer’s family about the incident/encounter.

vii) To initiate disciplinary action against the concerned police officer and to suspend him, in case the evidence shows, use of firearms in the encounter killings.

viii) To follow the scheme laid down under Section 357-A of CrPC in case compensation has to be granted to the victim or his dependents, who have suffered loss or injury as a result of the police encounter.

Further, the Supreme Court has held in the aforesaid case that the said guidelines/norms have to be treated as law declared under Article 141 of the Constitution of India 1950, i.e. the law declared by the Supreme Court shall be binding on all courts within the territory of India and thus, have to be strictly followed in cases of death or grievous injury caused in police encounters.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

SUPREME COURT ALLOWS SERVICE OF SUMMONS AND LEGAL NOTICES VIA WHATSAPP, EMAIL AND FAX

In the recent times, #courts have allowed service of #LegalNotices by #Email. In a more recent development that happened this week, the Hon’ble Supreme Court of India enlarged the scope of #digital service of notices and #summons by stating that notices and summons could now be served on parties through Email, #Fax and instant messaging application such as #WhatsApp.

The Order was passed by Bench of the Chief Justice of India, Justice S.A. Bobde along with two other Judges. The Attorney General, who was present in the matter, voiced his concerns about the Government Departments not being comfortable with service of summons and notices through Whatsapp because as per him “it was a completely encrypted platform”. However, the Bench did not accept the Attorney General’s stand and stated that service would be deemed to be completed if there was a double “blue tick” against the message which would indicate the message has been duly read.

Now that notices and summons can be served through the digital media which currently includes messaging applications it brings in its wake speedy implementation of court process where summons are concerned. Hitherto, service of summons by physical means stretched the service of summons to several hearings as the receiving party always found ways to refuse the summons mostly by paying off the postman. This new move prevents unnecessary delays in the process of law. Though this new means of service of summons and notices maybe a result of #COVID-19, it is no doubt an excellent way to reduce timelines in litigation. It is hoped that this new development will come to stay.

The Chief Justice of India, stated as follows:

“If the two blue ticks are there then it can be proved under Evidence Act…so Whatsapp can be used (for summons)”.

The Supreme Court also extended time for filing matters by extending the period by 45 days in matters pertaining to the Debt Recovery Tribunal and under Commercial Courts Act. However, it refrain from extending the limitation period in cheque bouncing matters and held that validity of cheque was the subject matter of Reserve Bank India and as such the Court did not want to intervene.

In another very interesting matter pertaining to the National Company Law Appellate Tribunal that has shut down completely as one of its employees was detected as positive for Coronavirus. The Supreme Court held that just for one employee who has detected positive for Coronavirus the NCLAT cannot close its doors of justice and asked the NCLAT to find a way for online hearings in the matter which was titled as Marathe hospitality v. Mahesh Surekha.

Lakshmi Vishwakarma

Associate

The Indian Lawyer

Legal Remedies for Corona affected

Dr. Kislay Panday, Solicitor, Supreme Court of India

The lawyers across the continents in the past few months have been hit with a slew of #coronavirus related legal matters. This is not surprising given the scale and magnitude of the #diseases which is indeed spreading like wildfire.

In India especially the last four weeks have been rather disturbing as the cases as well as the deaths are mounting. Some people affected by the disease are directly impacted while many others have had to face many situations for no fault of theirs.

These situations were often created by their employers, landlords, neighborhoods, even #hospitals, and law enforcers. Many people in the last few months have lost their #jobs or lay off or had a #salary cut despite a government directive to the contrary. There have been cases where landlords threw out the stuff of #medicalpersonnel fighting corona on the pretext that they can bring in corona!

This is the most unfortunate situation as when we need to be united against the virus we are busy using it to further our own petty ends. The coronavirus does not #discriminate, but people do.  The coronavirus has and will continue to impacts all societies and economies.

The biggest legal issue that has come to our notice is #employment-related. In the wake of a shrinking economy and rampant loss of customers, the companies after companies are laying off their workforce, often illegally on the pretext that they have no funds to sustain them.

This is a rather bizarre situation as no one can take such an effect as this goes grossly against the labor laws and established employer-employee relations. At best they can cut perks (that too if permitted in the contract if any).

Having said that, given our system of jurisprudence anybody is free to seek #legalremedies and so the #court cases are inevitable. To the employees serving in various companies, I have good news, if you are fired by your boss on the pretext of the corona pandemic he is on the wrong side of the law.

The reason is simple, unlike in the west where ‘force majeure’ is categorically mentioned, it is most likely to be absent in Indian #contracts. Interestingly enough even if it is there it has no legal value.  The expression ‘#forcemajeure’ or an #actofGod does not exist in the Indian statutes. 

The Indian Contract Act which provides the framework of any contract is silent on the term `force majeure’.  The court rulings have been rather varied, from case to case, depending on other facts brought to its notice.

In the absence of the ‘force majeure’ clause, Sec 56 of the Contract Act becomes relevant which is about `frustration of contract’ implying that the contract has become impossible or unlawful. This then opens a new legal tussle which can rage for years as it becomes courts prerogative to interpret the law in the matter brought before it.

Besides, even if the term ‘force majeure’ is mentioned in a contract it does not imply `#pandemics’ per se, as it typically covers catastrophes like war.  This is indeed good news for the employee who has been wrongly terminated or whose salary has been drastically slashed by the company in order to safeguard its own interests and pass on the burden of Corona pandemic on the hapless employees.

However, it is not that simple as if anyone who has ever fought a case in court knows the time and energy it takes to get justice.  We are doing all we can to help people in this time of crisis. Our team is dealing with such cases and using knowledge and experience to determine the best we can do to provide succor to these people.

 We have started this service ‘#probono’ and is open for anyone wronged by his employer or anyone on the pretext of coronavirus.  We have also started a helpline for corona patients who can dial-in for any legal advice absolutely free of cost 24X7 The Pandemic we are facing is unprecedented and we need not forget that it should be an opportunity to help others rather than profit from it at the expense of others.

Article By:  Dr. Kislay Panday, Solicitor, Supreme Court of India