NEED FOR ESTABLISHING CITIZENS GRIEVANCES OMBUDSMAN

1- Newspapers are full of reports of citizens approaching the #HighCourts or #SupremeCourt to complain about the inaction on the part of the executive by filing what have come to be known as Public Interest Litigations (#PILs).  On the filing of this #PublicInterestLitigation, Courts have been ordering notices to various Government Departments and more than 85% of these Public Interest Litigation cases are eventually “closed” by giving a direction to   concerned Departments to take necessary action on the representation of the citizen “ in accordance with law ”, within a specified time frame. No important questions of law are being decided in this exercise.  

2- The precious time of the High Courts / Supreme Court is being diverted for a low-level adjudication not involving any important questions of law.  The National Judicial Litigation Grid does not give any details about the total number of Public Interest Litigations filed all over the country.   An examination of the Website of the A.P. and Telangana High Courts would show that about 190 Public Interest Litigation Writ Petitions were filed in the year 2019 in each State.  Taking 200 Public Interest Litigations in a High Court in a year as a basis, it would be safe to estimate the total Public Interest Litigation cases filed in the country to be in region of about 6000.

3- Now, let us examine the average time, a High Court spends on a Public Interest Litigation (assuming that the Public Interest Litigation brief consists of only 25 pages, the time taken by a Judge to read 25 pages would be at least 12.5 minutes).  As Public Interest Litigation cases are usually heard by two Judges, it would mean that at least 25 minutes judicial time would be spent actually by the Judges by studying the brief.  Each hearing lasts at least 15 minutes.  A minimum of two hearings are required for the disposal of the case which means at least 30 minutes for adjudication in the open Court.  Thus, the total time devoted by two Judges for disposing for adjudicating for single case is about one hour.

4- The time taken by the Appeal Examiners in the Registry of the High Court to scrutinize and number the PIL WPs would be at least 30 minutes.  The time taken by a stenographer to take down the dictation, type the order and get it signed by the Judges, to enable a certified copy of the order to be issued would be another 30 minutes. The Secretarial / Para-Judicial work in processing single Public Interest Litigation case would be about 60 minutes. Thus, two hours of Judicial and Para-Judicial time is consumed for adjudication of a single PIL.

5- Taking two hours as an average,  it would clear  each High Court (save the very small High Courts in the North East and Sikkim) would be devoting about 400 hours in a year on Public Interest Litigations @ 200 cases per year.   

6- The High Courts sit for only 210 working days in a year. Each working day is five hours.  As a matter of fact, one out of the five working days in a week are earmarked exclusively for PIL cases.  It   works out to 20% of the time of the Chief Justice and his Companion Judge.  

7- Instead of hearing and adjudicating important Constitutional issues, the time of the First Court is being spent on stereo typed, pedestrian adjudication.   In adjudicating Public Interest Litigation cases, the judiciary is unconsciously becoming increasingly drawn into the nitty gritty administrative issues.  It is in the danger of   becoming a Super Executive.   

8- In the year 2011 the “ The Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill, 2011”  was introduced in Parliament but the Bill lapsed owing to lack of political will.  Had this Bill being passed, the bureaucracy would have been obliged to be more responsive and treat citizens with respect and redress the grievances of the citizens within 30 working days.  Since this Bill was not passed the citizens are forced to file PILs for getting their grievances redressed within a specified time frame. Therefore, there is need to establish “Citizens Grievances Ombudsman” at the State and National level.  This Body should consist of experienced members of the bureaucracy, such as, retired Civil Servants, Police Officers, even Judges, Educationists, Members of the Civil Society, etc.

9- Any citizen, who is aggrieved by the inaction of a Government Body can approach the Citizens Grievances Ombudsman with his grievance and the Ombudsman would be empowered to examine the matter and direct the concerned Government or Local Body, Municipal Authority to redress the grievance of the citizen within a specific time frame. 

10- With the advent of teleconferencing, the establishment of a Citizens Grievances Ombudsman will not be an expensive affair. The citizens can approach the Citizens Ombudsman by lodging a complaint either in writing or email or by Video and all these complaints should be received round the clock by dedicated Call Centre. These complaints would then be brought to the notice of the Members of the Citizens Grievances Ombudsman, who working from home, would then issue necessary instructions which would be binding on the various Government Departments. If this is done there would be no need for the citizens to rush to the court by filing Public Interest Litigation for routine matters. 

11- The High Courts can then focus their attention of clearing the backlog of important cases relating to property, taxes, matrimonial, arbitration and contractual disputes, instead of getting bogged down in routine PIL matters, because as of November, 2019, the pending cases in  the Supreme Court were 59,867 and the pending cases in various High Courts were 44.75 Lakh.  

12- It would be in the fitness of things for the Supreme Court and High Courts to clear their own backlog rather than attempting to be a Super Executive.

Adv. Prabhakar Sripada

HIGHLIGHTS OF GAS LEAK TRAGEDY: LG POLYMERS INDIA PRIVATE LIMITED, VISAKHAPATNAM

Recently, the residents of R.R. #Venkatapuram Village, Visakhapatnam, Andhra Pradesh, witnessed a catastrophic industrial #accident that occurred at the Chemical Plant of #LGPolymers India Private Limited, Visakhapatnam on 07-05-2020. The Company, LG Polymers, is owned by South-Korea based LG Chem and is engaged in the business of manufacturing #Polystyrene and its #Co-polymers.

In view of the #Covid-19 #Lockdown situation, the Chemical Plant was forced to shut down for more than 44 days. The Plant had around 2,000 metric tons of styrene gas stored in its tanks, and with the use of the Plant’s cooling system, the styrene gas had to be stored within certain temperatures, i.e. 20–22 °C, above which it would vaporize. But during the said Lockdown period, the Plant was left unattended.

Thereafter, the Chemical Plant was reopened on 07-05-2020 to restart the operations, when the workers may have observed that the Plant’s cooling system had malfunctioned. As a result, gradually, the styrene gas leaked from the Chemical Plant and spread to the nearby villages, namely, R. R. Venkatapuram, Padmapuram, BC Colony, Gopalapatnam and Kamparapalem.

In the said Gas Leak Disaster, around 11 people died and several got injured. Those who were affected by the Disaster complained of irritation in eyes, breathlessness, nausea, and rashes on their bodies.

The Government has been taking the following measures in this matter:

1- The Police has evacuated 200-250 families in 5 KM radius around the Plant.

i) The Police has filed a First Information Report (FIR) against LG Polymers for possible charges under the following provisions of the Indian Penal Code 1860 as amended thereof (IPC):

  • Section 278 (for making the atmosphere noxious to health),
  • Section 284 (for negligent conduct with respect to poisonous substance),
  • Section 285 (for negligent conduct with respect to fire or combustible matter),
  • Section 337 (for causing hurt by act endangering life or personal safety of others),
  • Section 338 (for causing grievous hurt by act endangering life), and
  • Section 304 (for causing death by doing any rash or negligent act not amounting to culpable homicide) of.

ii) The Andhra Pradesh (AP) Government has set up a High-Power Committee under the Chairmanship of Mr. Neerabh Kumar, former IAS Officer, to look into the matter.

iii) Further, the AP Government has also announced the grant of Rs 1 Crore compensation to families who lost a member, Rs 10 Lakhs to those on ventilator, Rs 1 Lakh to those who had gone to hospital for first-aid care, on 07-05-2020. 

iv) The AP Government has announced that it would be airlifting 500 tons of inhibitors to neutralize the chemical substances leaked during this incident.

Further, the National Green Tribunal (NGT), New Delhi Bench, took suo moto cognizance in the matter In re: Gas Leak at LG Polymers Chemical Plant in RR Venkatapuram Village Visakhapatnam in Andhra Pradesh and passed the Order dated 08-05-2020 and directed as follows:

  • NGT held that styrene gas is a hazardous chemical as defined under Manufacture, Storage and Import of Hazardous Chemical Rules, 1989.
  • Further, that LG Polymers is strictly liable for leakage of hazardous gas, thereby adversely affecting public health and environment.
  • Further, LG Polymers is liable to restore the damage caused to property and environment.
  • LG Polymers to deposit an initial amount of Rs. 50 Crores with the District Magistrate of Visakhapatnam in order to mitigate the damages caused due to the Accident.
  • NGT formed a Committee under former J. B. Seshasayana Reddy, Retired Judge of Andhra Pradesh High Court, to conduct inspection of the matter, determine the cause and extent of damage to life and environment and any remedial measures that may be taken to prevent recurrence of the Accident.

In an earlier case of industrial disaster, i.e. Union Carbide Corporation Etc. vs Union of India AIR 1992 SC 248, (1984 Bhopal Gas Tragedy), there was a leakage of approximately 30 tonnes of toxic methyl isocyanate (MIC) gas from Union Carbide India Limited (UCIL), in Bhopal, which adversely affected the lives of more than 5 Lakh people. In the said case, the Supreme Court discussed the following principle and directed UCIL to bear the hospital expenses of the victims of the Accident, insurance premiums of claimants, and pay compensation of approximately Rs.750 Crores to the Government of India:

where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions…

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

FORCE MAJEURE CASES UNDER INDIAN LAW: CASE ANALYSIS 1: SUPREME COURT: SATYABRATA GHOSE VS MUGNEERAM BANGUR & CO., AND ANOTHER 1954 SCR 310

Facts:

In the present case, the Respondent Company, Mugneeram Bangur & Co, owned a land situated in Dhakuria Lakes within Greater Calcutta (Land). The Respondent Company was engaged in development of the said Land into residential use, under the name of Lake Colony Scheme No. 1. The entire land was divided into various plots for sale to intending buyers. At the time of entering into #agreementstosell with intending buyers, the Respondent-Seller used to accept earnest money from intending buyers.

Then he was to commence the work of #construction of roads and drains to make the Land suitable for living. Thereupon, the #contractsofsale were to be executed and the buyers were to pay the balance sale consideration.

In one such agreement, the Respondent Company entered into an Agreement to Sell dated 05-08-1940 (Agreement to Sell), with Mr Bejoy Krishna Roy, in respect of a portion of the Land. Mr Roy paid Rs. 101/- as Earnest Money Deposit (EMD) to the Respondent Company. Mr Roy further appointed the Appellant, Mr Satyabrata Ghose, as his nominee for purposes of the said Agreement to Sell and Contract of Sale on 30-11-1941.

Meanwhile, the District Collector, 24-Parganas, passed an Order dated 12-11-1941, of requisition of a portion of Land for military purposes. Thereafter, the District Collector, 24-Parganas, passed another Order dated 20-12-1941, of requisition of some other portions of Land.

Thus, the Respondent Company informed Mr Roy that he was unable to complete the construction of roads and drains during the period of war, due to the said Requisition Orders of the Government. Further, that the Respondent Company decided to terminate the Agreement to Sell dated 05-08-1940 and to return the EMD to Mr Roy. Alternatively, Mr Roy could pay the balance sale consideration within one month of receipt of the said letter, and further, take the possession of his portion of Land in an as is where is condition. The Respondent Company also promised to undertake the construction of roads and drains, after conclusion of war. But in the event that Mr Roy did not agree to either of the said options, then the Respondent Company would terminate the Agreement to Sell dated 05-08-1940 and forfeit the EMD.

But Mr Roy and his Nominee, did not agree to the aforesaid options and thus, filed a Suit on 18-01-1946 in the Court of Additional Sub-Ordinate Judge, Alipore, praying that the Court directs the Respondent Company to execute the Sale Deed. The said Alipore Court passed a Judgment dated 10-10-1947 and allowed specific performance by the Respondent Company.

The Respondent Company, then, filed an appeal against the said Judgment dated 10-10-1947, in the District Court of 24-Parganas. The District Court passed an Order dated 25-02-1949 and upheld the Alipore Court’s Order. This led to the filing of an appeal in the High Court of Calcutta by the Respondent Company. The High Court held that the Sale Contract was frustrated by the Requisition Orders of the Government and thus, dismissed the Suit. Thereafter, the Nominee of Mr Roy, appealed to the Supreme Court in 1952.

Issue:

Whether the Agreement to Sell of portion of Land in dispute, is dissolved by frustration or has become impossible to perform, due to the occurrence of a supervening event which affected the material part of the Contract?

Judgment:

The Supreme Court discussed Section 56 of the Indian Contract Act 1872 as amended thereof (the Act) as follows:

Section 56 of the Act relates to performance of contracts and it purports to deal with one circumstance under which performance of a contract is excused or dispensed with on the ground of the contract being-void.

Section 56 of the Act is reproduced below:

Agreement to do impossible act.—

An agreement to do an act impossible in itself is void.

Contract to do an act afterwards becoming impossible or unlawful.—

A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.

Compensation for loss through non-performance of act known to be impossible or unlawful.—

Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the nonperformance of the promise.

Herein, the Apex Court allowed the Appeal and made the following observations:

1- “The relief is given by the court on the ground of subsequent impossibility when it finds that the whole purpose or basis of a contract was frustrated by the intrusion or occurrence of an unexpected event or change of circumstances which was beyond what was contemplated by the parties at the time when they entered into the agreement. Here there is no question of finding out an implied term agreed to by the parties embodying a provision for discharge, because the parties did not think about the matter at all nor could possibly have any intention regarding it. When such an event or change of circumstance occurs which is so fundamental as to be regarded by law as striking at the root of the contract as a whole, it is the court which can pronounce the contract to be frustrated and at an end. The court undoubtedly has to examine the contract and the circumstances under which it was made. The belief, knowledge and intention of the parties are evidence, but evidence only on which the court has to form its own conclusion whether the changed circumstances destroyed altogether the basis of the adventure and its underlying object.”

2- That the Agreement to Sell had not stipulated any fixed time limit for construction of roads and drains. So, the Apex Court concluded that the parties may not have fixed a particular time limit for development of the Land and construction of roads and drains for the following reasons:

i) That the parties had knowledge about the war at the time of entering into the Contract. Thus, they may have contemplated that it would not have been possible to complete the construction within a fixed time period.

ii) Also, the Requisition Orders for temporary possession of lands for military or war purposes was a normal event during that period. Thus, they may have contemplated the potential difficulties and restrictions that could arise in completion of development of Land and construction of roads and drains.

3- Also, even before the Requisition Orders were passed, the Respondent Company had delayed the development of Land and construction of roads and drains. So, it could not be said that the difficulty or delay in construction was only due to the issue of the Requisition Orders.

The Apex Court held that the Requisition Orders did not vitally affect the root of the Agreement to Sell or made the performance of the Contract impossible. Thus, the Agreement to Sell was held not to be frustrated.

Analysis:

1- In some cases, parties may contemplate, at the time of entering into an agreement, that a particular intervening circumstance(s) may affect the performance of the agreement.

But if they stipulate in the contract, that despite the occurrence of such an event, they are bound to perform the contract, then in such cases, parties cannot plead frustration of contract when the intervening event happens.

2- Section 56 of the Indian Contract Act 1872 looks at a three-fold situation while construing frustration of contracts:

The first, is an agreement to do an act which is impossible, is void.

The second aspect is to do an act after the contract is made, becomes impossible or unlawful, then the contract is deemed to be void because of the impossibility or unlawfulness.

Thirdly, where one person promises another to do an impossible act knowingly, which the aggrieved party is not aware of, then the performing party of such an act must compensate the aggrieved party, for any loss which the aggrieved party suffers.

This Judgment is the first judgment that discusses force majeure and frustration of contracts. It has laid down that contracts can be deemed to be frustrated only and only when it strikes at the root of the contract or fundamentally alters the contract. In such a case the parties can seek discharge from contractual obligations.

The other important cases on force majeure and frustration will be discussed in different articles in the coming weeks.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

Edited by

Sushila Ram Varma

Chief Consultant

The Indian Lawyer

FINANCE MINISTER ANNOUNCED 2ND PART OF ECONOMIC RELIEF PACKAGE 2020-21

As part of the Union Government’s Covid-19 economy revival package under Atmanirbhar Bharat Abhiyaan, the Finance Minister, Mrs Nirmala Sitharaman on 14.05.2020 announced short term and long-term economic relief measures. This Part of the Economic reliefs focused on benefiting rural and urban poor, migrants, unorganized workers, street vendors, middle income group, and the needy amongst others. It aims to alleviate the Lockdown-induced misery of migrant labour and street vendors by extending more credit for supporting the needy people. All the following measures highlighting the details are mentioned in a tabular form in the file attached below:

While the economic reliefs provide a balanced approached to resolving the impact of the Pandemic, it offers a clear vision of the future and what India should be. The migrant labourers make a huge contribution to the Indian Economy but their share in the National Income is minimal. These workers require economic protection not only during the Lockdown but also post Lockdown.

Lakshmi Vishwakarma

Associate

The Indian Lawyer & Allied Services

TIL Legal Speak: Episode 2: Catch Up With Sushila Ram Varma

All kinds of businesses, industries and sectors across the world have been adversely affected due this Covid-19 Pandemic and the Lockdown situation.

But the role of a lawyer in a society continues to have significance, even during this crisis period, to ensure that the aggrieved party has continued access to justice delivery system.

Thus, The Indian Lawyer & Allied Services in collaboration with Adv. Maitrayee Sanyal, brings before you the Episode 2 of TIL Legal Speak, which discusses about the legal system in the current framework.

To see the Video, please visit the link below:

Video Credits:

Speaker- Adv. Sushila Ram Varma

Moderator- Adv. Maitrayee Sanyal

Category: Legal

INDIA — JAPAN SPECIAL STRATEGIC AND GLOBAL PARTNERSHIP

#India and #Japan have a strong #bilateral relationship in the areas of defence and security, infrastructure and construction, railways, automobiles and locomotives, steel and iron-ore, forest and disaster management, etc. India and Japan have so far executed a number of agreements for strengthening the strategic and global #partnership between the two countries. The significant #agreements executed by both the countries since 2018 are given below:

AGREEMENTDETAILS  
1. Memorandum of Cooperation (MoC) in the field of technologyTo collaborate with India in the field of next generation technologies such as artificial intelligence, internet of things (IoT) and 5G technologies, etc.  
2. MoC in the field of healthcare and wellnessTo collaborate in the field of primary healthcare, prevention of non-communicable diseases, maternal and child health services, sanitation, hygiene, nutrition and elderly care.  
3. Memorandum of Understanding (MoU) in the field of food securityTo further the cooperation between the two countries, in the areas of food and water security.  
4. MoC in the area of food processingJapan plans to be involved with private companies in the field of agriculture, fisheries and food processing sectors, in order to improve farming productivity and decrease harvest and post-harvest losses.  
5. MoU between Council of Scientific and Industrial Research (CSIR), India and Hiroshima University, Japan for promoting research partnership  Both countries plan to promote research partnership in areas of electronics, sensors, robotics, intelligent transportation, etc.  
6. MoU between CSIR and Research Centre for Advanced Science and Technology (RCAST), the University of Tokyo, Japan for promoting research partnership  Both countries have committed to explore the opportunities for research partnership in the areas of sustainable and renewable forms of energy, electronics, robotics, IoT etc
7. MoC in the field of environment cooperation  Both countries have committed to explore the possibilities for collaboration in the areas of environmental protection and improvement.  
8. MoU between Indian Institute of Technology Hyderabad (IIT-H), India and Hiroshima University, Japan and other institutes, in the field of academicsIndia and Japan have planned to promote joint research and exchange of students and faculties between the institutions
9. MoU between Sports Authority of India (SAI), India and University of Tsukuba, Japan, in the field of academics and sports  Both countries have planned to strengthen cooperation in the field of sports development, through joint programmes.
10. Joint Venture (JV) Agreement between State Bank of India (SBI) and Hitachi Payment Services Pvt LtdThis JV, namely, SBI Payment Services Pvt. Ltd, is a state-of-the-art digital payments platform for India and other countries.  

Japan has so far invested an amount of approximately USD 33,080.56 Million during the period of April 2000 to December 2019 in India. The said investments have been made pertaining to water and sanitation projects, improvement of water quality of River Ganga, roads and highways connectivity improvement projects, biodiversity conservation and forest management projects, etc in the North-Eastern parts of India. Japan has further planned to collaborate with India in the field of unmanned ground vehicles, robotics and outer-space activities, cyber security-based projects, etc. Japan has also committed to make India, a manufacturing destination for companies across the globe.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

GOVERNMENT RELIEF MEASURES FOR MICRO-SMALL-MEDIUM ENTERPRISES

The Government of India has recently announced certain #relief measures for supporting the micro, small and medium enterprises (#MSMEs), financial institutions and other businesses, during the #Covid19 crisis.

The Covid-19 Pandemic has adversely affected trade and commerce across the globe. The Government of India had declared a lockdown around 22-03-2020 to contain the spread of Coronavirus. As a result, number of businesses, especially MSMEs, were forced to shut down their operations. This has resulted in loss of income and revenue generation.

Thus, with a view to support the MSMEs, the Government of India recently introduced the following relief measures from 12-05-2020 to 14-05-2020:

Currently, MSMEs have been facing problems of revenue generation due to the Covid-19 crisis. But it is strongly believed that the aforesaid Government measures would help to boost entrepreneurship and revive the economic growth of the country.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer & Allied Services

THE BEGINNING OF VIRTUAL COURTS : CASE ANALYSIS OF SWAPNIL TRIPATHI v. SUPREME COURT OF INDIA 2018

The unprecedented crisis caused by the #Coronavirus #Lockdown has compelled the Justice Delivery System to take recourse to video-conferencing to deal with the crucial legal matters. The likelihood of video-conferencing is expected to stay with Judges noticing its time-saving potential and ability to fast-track cases. However, adapting to this new technology, having virtual courts is not going to be without glitches. Introduction of any new system always has teething problems and so will this but that does not stop us from trying it.

Right now proceedings can only be viewed by the lawyers and their clients and are not available for public viewing. Many legal experts postulate that while technology is here to stay, it should not erode the rule of law. In the end, the #credibility of the court and its authority depends upon the conduct of open hearings.

The question which arises is how can courts retain public confidence in a post-pandemic world where digital pathways will have to be resorted to? One option is live streaming, which the Supreme Court itself had upheld in 2018. Justice D.Y. Chandrachud, had authorized it in the matter of Swapnil Tripathi v. Supreme Court of India, [(2018) 10 SCC 628] saying “sunlight is the best disinfectant”.

BRIEF FACTS OF THE CASE

In 2017, various individuals and groups filed #petition(s) before the Supreme Court of India under Article 32 of the Constitution. The Petition was seeking a declaration that “Supreme Court case proceedings of constitutional importance having an impact on the public at large or a large number of people should be live streamed in a manner that is easily accessible for public viewing”. In addition, the Petition also sought guidelines from the Court to enable the future determination of cases that would qualify for live streaming.

The Petitioners relied on the Supreme Court case namely Naresh Shridhar Mirjkar v. State of Maharashtra [(1966) 3 S.C.R 744] (‘Mirjkar’) wherein it was held that Article 19 of the Constitution included the right of journalists to publish reports of court proceedings. In that case the Court had emphasized “the efficacy of open trials for upholding the legitimacy, effectiveness of the Courts and for enhancement of public confidence and support”.

LEGAL ISSUES:

  1. Whether there should be live dissemination of proceedings before this Court with the aid of information and communications technology (ICT).
  2. Whether live streaming of court proceedings should be introduced in India, and if so, under what conditions.

DECISION:

The Judgment was delivered by a three-judge Bench of the Supreme Court of India. Justice Khanwilkar delivered the majority Judgment on behalf of himself and Chief Justice Deepak Mishra. Justice D.Y. Chanrachud delivered a separate concurring Judgment.

The Bench ruled that proceedings of cases having constitutional and national importance before the #SupremeCourt should be broadcast to the public.

The Judgment is a significant decision on the concepts of Open Justice, access to public information and transparency in the judicial process. Though the Judgment only directs that certain proceedings in the Supreme Court be live-streamed for the time being, it has opened the doors for live-streaming to be extended to all proceedings in the Supreme Court, High Courts and proceedings in lower courts.

HELD

The Court held that the ability to view live broadcasts of the Supreme Court proceedings flowed from the right of access to justice in the Constitution. The Court said that this right should not be absolute. It provided a set of Model Guidelines which should govern the courts’ discretion on when such broadcast should be used.

ANALYSIS AND OBSERVATIONS ON THE DECISION

The Court requested the Attorney General for India, Mr K.K. Venugopal (AG) to collate the suggestions given by him as well as the Petitioners and submit a comprehensive note for evolving a framework, in the event the relief claimed in the Writ Petition(s) to be granted.

While generally agreeing with the Comprehensive Guidelines for live-streaming of Court proceedings in the Supreme Court suggested by the AG, the Court recorded the following observations:

  1. The Court while considering the Petition observed that there is an express stipulation in Article 145(4) of the Constitution that such pronouncements shall be made in open court. It further held that “no such express provision is found in the Constitution regarding open court hearing before the Supreme Court, but it can be traced to provisions such as Section 327 of the Code of Criminal Procedure, 1973 (CrPC) and Section 153-B of the Code of Civil Procedure, 1908 (CPC).”
  2. The Court acknowledged that there was “unanimity between all protagonists that live streaming of Supreme Court proceedings at least in respect of cases of Constitutional and national importance, having an impact on the public at large or on a large number of people in India, may be a good beginning”.
  3. The Court discussed the importance of the rights involved in such a case, and the need to balance such rights that is access to justice while taking into account the privacy of the litigating parties and the dignity of the courts. It referred to the Mirajkar case (supra) which had held that the right to freedom of expression under Article 19 of the Constitution should be interpreted to allow journalists to carry on their occupation by attending Court proceedings.
  4. The Court noted that the right of access to justice as set out in Article 21 of the Constitution, which protects the right to life and liberty, would be meaningful only when the public gets access to the proceedings. In addition, the Court commented that the State has an obligation to spread awareness about the law to enable individuals to understand the law. The Court also remarked, that it was now well settled that Article 19(1)(a) of the Constitution confers the right to know and receive information. So the public is entitled to witness Court proceedings.
  5. The Court also referred to the Indian case of Olga Tellis v. Bombay Municipal Corporation [(1985) 3 SCC 545] which had reiterated the value of a hearing by emphasizing the principle that “justice must also be seen to be done”. It also referred to the cases of Life Insurance Corporation of India v. Manubhai [1992 (3) S.C.R. 595] and Mohd. Shahabuddin v. State of Bihar [(2010) 4 SCC 653]. These cases highlighted the importance of open courtrooms in assisting the dissemination of information.
  6. The Court concluded that live streaming should be accepted “so as to uphold the constitutional rights of public and the litigants”. It also added that it had sought to balance the interests of administration of justice, including open justice, dignity and privacy of the participants to the proceedings.

The Court also pointed out the multiple reasons why live-streaming would be beneficial to the judicial system. It stated the following:

  1. The technology of live-streaming injects radical immediacy into courtroom proceedings. Each hearing is made public within seconds of its occurrence.
  2. Introduction of live-streaming will effectuate the public’s right to know about court proceedings. It will enable those affected by the decisions of the Court to observe the manner in which judicial decision are made.
  3. Live-streaming of courtroom proceedings will reduce the public’s reliance on second-hand narratives to obtain information about important judgments of the Court and the course of judicial hearings.
  4. Viewing court proceedings will also serve an educational purpose. Law students will be able to observe and learn from the interactions between the Bar and Bench.
  5. Live-streaming will enhance the rule of law and promote better understanding of legal governance as part of the functioning of democracy;
  6. Live-streaming will remove physical barriers to viewing court proceedings by enabling the public to view proceedings from outside courtroom premises. This will also reduce the congestion which is currently plaguing courtrooms.
  7. Live-streaming is a significant instrument of enhancing the accountability of judicial institutions and of all those who participate in the judicial process.

The Court concluded by reiterating that the Supreme Court Rules, 2013 will have to be suitably amended to provide for the regulatory framework. The Judgment also undertook an analysis of the situation in comparative jurisdictions and identified some common trends. Which included the following points such as requirement of a minimal delay in live broadcast, that the Court retains copyright of the broadcast, that the presiding judge retains discretion to regulate the broadcast, etc. The Court also discussed the importance of beginning with a pilot project, and the potential for exclusion from broadcast of certain cases.

Dr D.Y. Chandrachud, J. delivered a separate concurring opinion wherein he formulated Model Guidelines for the broadcasting of the proceedings and other judicial events of the Supreme Court of India.

CONCLUSION

To summarize the said Judgment, the Court conveyed that the live-streaming must not compromise the integrity of the Justice System. The majesty and decorum of the Courts must not be compromised. We can consider the various steps taken by the Judiciary after this Judgment and especially, during the Coronavirus Lockdown with regard to fair functioning of the judicial mechanism. One thing is sure, that the Judiciary is looking at a virtually efficient judicial system in India.

The Judiciary cannot afford more delays. As crucial hearings are awaited decision in cases such as the Citizenship (Amendment) Act, and the use of Money Bill amongst others. Neither can the court afford to delay decisions on important public matters which involve scams and other criminal cases.

Lakshmi Vishwakarma

Associate

The Indian Lawyer & Allied Services

Edited by

Sushila Ram Varma

Chief Consultant

The Indian Lawyer & Allied Services

TIL Legal Speak: Episode 1: Force Majeure and Frustration of Contract

In the wake of this #Covid19 crisis, it has become extremely important for individuals, professionals and #businesses to understand the concept of #forcemajeure and #frustrationofcontract. You can check the following link for expert opinion on the same:

Video Credits:

Speaker- Adv. Sushila Ram Varma

Moderator- Adv. Harini Daliparthy

Written and Edited By: Team, The Indian Lawyer & Allied Services

Category: Legal

TIL Legal Fundamentals: Episode 7: Law of Injunctions

In the aftermath of #Coronavirus, there will be several contracts that will be breached. This #Episode deals with #injunctions as a preventive relief available to an #aggrieved party, to restrain the defaulting party from doing an act or omission.

The Indian Lawyer & Allied Services is a multi-city commercial and business boutique Law Firm that provides advice in different aspects of #ContractLaw and has expertise in corporate and commercial #laws.

Thus, it is our endeavor to bring before you the Seventh Episode of our #YouTube Series called ‘TIL Legal Fundamentals’ and enable contracting parties to understand the law of injunctions in India.

To see the Video on Law of Injunctions, please visit the link below:

VIDEO CREDITS:

Starring- Adv. Daliparthy Harini

Written and Edited By: Team, The Indian Lawyer & Allied Services

Category: Legal