Minerva Mills Ltd. and Ors. v. Union of India and Ors. is one of the most important judgments which safe guarded the ‘basic structure’ of the Constitution from being arbitrarily amended by parliament. The constitutionality of sections 4 and 55 of the 42nd Amendment Act, 1986 gave the Parliament ‘unlimited powers’ to amend the Constitution and hence were struck down by the Hon’ble Supreme Court.
Minerva Mills Ltd. was a limited company dealing in textiles in Karnataka. The other petitioners were the shareholders in Minerva Mills.
August 20, 1970 - The Central Government, in apprehension of the substantial fall in production of Minerva Mills, appointed a committee under section 15 of the Industries (Development & Regulation) Act, 1951 (herein after referred to as the IDR Act) to make an investigation of the affairs of Minerva Mills Ltd.
October 19, 1971- After the submission of the committee report, the Central Government passed order under section 18A of the 1951 Act that authorized the National Textile Corporation Ltd. to take over the management of the Mills on the ground of mismanagement of the company affairs. Hence, this undertaking was nationalized and taken over by the Central Government under the provisions of the Sick Textile Undertakings (Nationalization) Act, 1974 (herein after referred to as the Nationalization Act).
Thereafter, the petitioners challenged this order before the High Court. The High Court, however, dismissed their petition.
The petitioners, filed a writ petition before the Hon’ble Supreme Court under article 32 of the Constitution of India, 1950.
They challenged the constitutional validity of the following;
Sections 5(b), 19(3), 21 (read with 2nd schedule), 25 and 27, of the Sick Textile Undertakings (Nationalisation) Act, 1974
Order of the Central Government dated October 19, 1971
Sections 4 and 55 of the Constitution (Forty Second Amendment) Act, 1976
“(4) No Amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article [whether before or after the commencement of Section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground.
(5) It is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.”
Whether the amendments introduced by Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 damage the basic structure of the Constitution by destroying any of its basic features or essential elements?
Under majority of 4:1, the Court held the Section 4 of the Constitution (42nd Amendment) Act, 1976 as being unconstitutional on the ground of violation of the basic structure. Similarly, the Section 55 of the Constitution (42nd Amendment) Act, 1976 was held unconstitutional unanimously.
Clause (5) was declared as unconstitutional on the ground of damaging and breaching the basic features of the Constitution.
Clause (4) which barred judicial review in cases of constitutional amendments was held unconstitutional as it sought to make the entire Part III unenforceable and thus, enlarge the power of the Parliament limited by Article 13.
The Court mentioned that if a constitutional amendment goes beyond the pale of judicial review then ordinary laws made in pursuance thereof will escape judicial scrutiny by virtue of protection offered by such an omnipotent amendment. Hence, such a clause unconstitutional.
Section 4 of the Constitution (42 nd Amendment) Act, 1976, which was brought into force with effect from January 3, 1977 amended Article 31-C of the Constitution by substituting the words and figures “all or any of the principles laid down in Part IV” for the words and figures “the principles specified in clause (b) or clause (c) of Article 39”. This amendment by Section 4 of the 42 nd Amendment was also challenged in this case. Article 31-C, as amended by the 42 nd Amendment reads:
Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31;
No law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy;
Provided that where such law is made by the legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent."
By a unanimous decision of all 5 judges, the Supreme Court held both the newly inserted clauses (4) and (5) of Article 368 (inserted vide Section 55 of the 42 nd Constitutional Amendment) as unconstitutional and invalid for being in violation of the basic features of the Constitution. Main reasons for the said decision were as under:
Clause (5) of Article 368 confers upon the Parliament a vast and undefined power to amend the Constitution, even so as to distort it out of recognition. Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of the Indian Constitution and therefore, the limitations on that power cannot be destroyed. The Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features.
The newly introduced clause (4) of Article 368 must suffer the same fate as Clause (5) because the two clauses are inter-linked. Clause (5) purports to remove all limitations on the amending power while Clause (4) deprives the courts of their power to call in question any amendment of the Constitution.
If courts are totally deprived of that power the fundamental rights conferred upon the people will become a mere adornment because rights without remedies are as writ in water.
The conferment of the right to destroy the identity of the Constitution coupled with the provision that no court of law shall pronounce upon the validity of such destruction seems to be a transparent case of transgression of the limitations on the amending power.
If by a constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the legislature shall not be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution.
DECIDED ON 9th NOVEMBER 2019
BENCH OF JUDGES: 5 Judge Bench: Then CJI Ranjan Gogoi; Justice DY Chandrachud; Justice S A Bobde (now CJI); Justice S Abdul Nazeer; Justice Ashok Bhushan.
DISSENT: None; Unanimous
In the Faizabad District of Uttar Pradesh, disputed land in Ayodhya where lies Babri Mosque but the controversy raised when people of Hindu religion claimed that the Babri Mosque replaced the Ram Mandir where Lord Ram was born and hence, later called as Ramjanmabhumi which led to the question that who possess the disputed land.
In the year 1949, on 22 December, a set of Hindu idols were placed inside the Babri Masjid Dome due to which arose the law and order situation and Section 145 of CrPC, 1898 invoked. The surveillance of the site was given to the Chairman of the Municipal Board.
In the year 1992, the Babri Masjid was demolished by kar sevaks led by BJP Government and Vishwa Hindu Parishad of Uttar Pradesh.
In 2010, the Allahabad HC delivered a judgment in which it partitioned the land into 3 fractions for Lord Ram represented by Triloki Nath Pandey, an RSS volunteer, Nirmohi Akhara and Sunni Waqf Board.
Later an appeal was filed due to which Allahabad HC judgment stayed.
In 2018, a 3-Judge Bench was asked to look in the question if the matter should be referred to the Constitution Bench in which Chief Justice (then) Dipak Misra and Justice Bhushan gave the majority opinion whereas Justice Nazeer gave the dissenting opinion. The majority opinion was that the matter should be heard by the 3-Judge Bench and should not be referred to the Constitution Bench. But later, on 2 October 2018, Chief Justice Dipak Misra retired and the case went into the hands of Chief Justice Ranjan Gogoi on 8 January 2019. Chief Justice Ranjan Gogoi took the case to the Constitution Bench and the Court asked the parties to attempt mediation proceedings for 8 weeks. In the mediation proceedings, the main parties were unable to take a decision preferred by all the parties. Therefore, the matter went to the Constitution Bench again for a day-to-day hearing.
Finally, on 9th November 2019 came the much-awaited verdict of Ayodhya Ramjanmabhoomi or Babri Masjid.
The Babri Masjid or Ram Mandir case has been going on for a long time but finally settled on 9th November 2019. The issues raised in the appeal were:
“Is the 2010 Allahabad HC Judgment to distribute land between Lord Ram, Nirmohi Akhara and Sunni Waqf Board, valid?”
“Are the suit 3 by Nirmohi Akhara through Mahant Jagat Das for seeking the claim over the charge of Ramjanmabhumi temple to it and suit 4 by the Sunni Central Waqf Board and other Muslim residents of Ayodhya, barred by limitation under the Limitation Act, 1908?”
“Is the Ram Janmabhumi a juristic entity, independent of the presence of idols? And if so, is it immune from possession claims as a juristic entity?”
The Apex Court, after looking at the facts, evidence and oral hearings of the case came to its verdict. The case dealt with the history of the issue and the subject matter, archaeology of the disputed land; religion and the legal view.
The Hindus, even after the set up of grill-brick wall in 1857, continued to worship the outer courtyard proves the exclusive possession of the outer courtyard and there are evidences which establishes that the worship by Hindu deities at the outer courtyard before the annexation of Oudh by the Britishers in 1857 whereas the Muslims did not provide any evidence to show that they were in exclusive possession of the inner courtyard prior to 1857, however, after the setting up of grill-brick wall in 1857, the namaz was offered in the inner courtyard. The evidence given says that the last Friday namaz offered in the Babri Masjid was on 16 December 1949.
In the night between 22/23 December 1949, the mosque was violated by the installation of Hindu idols which deprived them of their place of worship.
The Court found that Archaeological evidence does not show if there was any temple before the mosque. The excavation was unable to provide enough evidence to show if there was any temple prior to the building of the mosque and if the mosque replaced the temple.
The Apex Court said the 3-way partition of the disputed land was legally unsustainable. In the verdict, the Court was of the opinion that the alternate land to be provided to the Muslims to build a Mosque as the evidence regarding the adverse possession of the Hindus of the disputed land was in the better than the evidence provided by the Muslims but later the Muslims were excluded from their worship place on the night of 22/23 December 1949, when the Mosque was desecrated by the installation of Hindu idols and later, ultimately destroyed on 6 December 1992. Specifically, the Muslims did not abandon their place of worship, the Mosque but were excluded. In our nation, where the Constitution postulates the equality of all faiths, there the Justice must prevail and the wrong committed must be remedied.
The Ram Lalla was granted the 2.77 acres Ayodhya disputed land known as, Ramjanmabhumi. To maintain peace and tranquillity and to prevail justice over the destruction of the Babri Masjid the alternative land of 5 acres to be allotted to the Sunni Waqf Board for the construction of the Mosque.
The Suit 3 filed by the Nirmohi Akhara has been held to be barred by limitation under the Limitation Act, 1908. The Nirmohi Akhara’s claim of being the shebait of the Ram Mandir was rejected. However, the Court ordered that the Nirmohi Akhara is to be included when the scheme for the construction of the Ram Mandir would be framed.
The Suit 4 filed by the Sunni Central Waqf Board and the other plaintiffs has been held to be within limitation and has not been barred by the limitation.
The Apex Court, on 9th November 2019 granted the entire 2.77 acres Ayodhya disputed land to Ram Lalla and the Uttar Pradesh Government has been ordered to allot an alternative 5-acres of land to Sunni Waqf Board to build a Mosque as a compensation for the desecration of the Babri Masjid in 1949 and the demolition of Babri Masjid in 1992.
WHETHER IT IS MANDATORY TO FILE A WRITTEN STATEMENT WITHIN 120 DAYS IN COMMERCIAL SUITS**
Introduction-
The Supreme Court of India in the landmark case of M/s SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. & Ors., held “that the filing of written statement in a commercial suit is mandatory and failure to do so within the time period of 120 days from the issuance of summon would lead to forfeiture of the defendant’s right for the same”.[1]
Facts-
M/S SCG Contracts India Pvt. Ltd (‘Appellant’) filed a suit against K.S. Chamankar Infrastructure Pvt. Ltd(‘Defendant No.1’) before the Delhi High Court on March 10, 2017, claiming a sum of INR 6,94,63,114/-. Defendant No.1 was served with the summons in the suit on 14 July 2017. Accordingly, they had the statutory period to file its written statement including extensions on or before 11th November 2017. Meanwhile, an application under Order VII Rule 11 was filed to reject the entire plaint. The application in contention was rejected in an order dated back to Dec 5th, 2017(‘First impugned order’). The time limit for filing the written statement in the instant matter was extended by the Court to Dec 15th, 2017 subject to the payment of 25,000 rupees,
Issue-
The issue before the Supreme Court in light of the amendments made in the Civil Procedure Code (C.P.C.) in 2015 was, whether the admission of the written statement is valid notwithstanding that 120 days had elapsed since the date when the summons was served?
Argument on behalf of the Appellant
Appellant contended that the amendments made in CPC in 2015 provide for consequences in case of non-filing of the written statement and the provision of order VIII Rules 1[2] and 10[3] are said to be mandatory rather than being a directory in nature. The rules provided in Order VIII list out the procedures to be followed with respect to admission/denial of the claim, counterclaim, specific claim, and the time limit prescribed to take action. Here, Rule 1 and Rule 10 are applicable as they deal with the acceptable time duration for filing of the respondent’s written statement.
The argument on behalf of the Respondent
Respondent contended that an application which was filed under Order VII Rule 11 should be heard before the commencement of the trial proceeding, furthermore it is evident that the written statement could not be filed within the prescribed time limit. Additionally, the respondent was permitted to file its written statement beyond 120 days after the first impugned order.
Findings Of The Supreme Court
Filing of a Written Statement within 120 days from the issuance of summons is mandatory
The apex court, having regard to the provisions of Order V Rule 1(1), Order VIII Rules 1 and 10 of the CPC, held that the party was granted the time period of 30 days to file its written statement from the date of summons and a grace period of 90 days, wherein, a court may allow the admission of the written statement after hearing the reasons for delay and imposing appropriate costs. However, if the defendant files the written statement after 120 days from the receipt of the summons, the court will be under no obligation to admit it on record.
A pending application lodged by the Respondent pursuant to the Order VII Rule 11 cannot be used as a defense against delay in filing of a written statement
The Apex Court observed that the proceedings pursuant to Order VII Rule 11 are independent of filing of the written statement after the suit had been canceled. Additionally, filing of such an application cannot be used as an excuse to retrieve the lost right of filing a written statement.[4]
The court’s inherent powers cannot be employed to bypass the procedural provisions
The Supreme Court held that where there is a special provision in the CPC dealing with the particular procedure, the same cannot be sidestepped by taking the recourse to the inherent powers of the court. Additionally, the provisions of Order V read with Rules 1 and 10 are definite and mandatory,[5] the consequences arising out of which cannot be escaped by taking recourse to the inherent powers of the court, thereby making the written statement inadmissible.
Analysis of the Judgment
This Supreme Court through the instant case has cleared the legal dilemma with regards to the filing of written statements in commercial suits. Through this it has been made mandatory the filing of such statement within 120 days from the issuance of summons otherwise the defendant would lose his right to do so. Notwithstanding the amendments carried out by the Commercial Court Act, 2015 to Order VIII Rules 1 and 10 of the CPC in 2015, the courts adopted a liberal rule of interpretation and allowed the filing of written statements beyond the period of 120 days. Now the courts will have to adhere to the strict time span (120 days) provided for the filing of statements thus limiting their discretion in such matters.The Supreme Court, laid down a precedent for future cases to come wherein if any statement, particularly received as an official written statement from the respondent’s submission, will be dismissed or treated as invalid if the aforementioned written statement is submitted to the court after the lapse of 120 days from the date of the court serving the summons. In particular, the written statements submitted will not be considered, as per Rule 1 of order 8, CPC, wherein no such form of the written statement will be entertained if in violation of the lapse period clearly demarcated by the court. The court laid down that any written statement will be treated as null and void and will not possess any power for legal recourse.
The Supreme court in the present judgment held, that the respondents justification of the delay owing to pending order in response of respondent’s application,[6] was unjustified as both the applications were independent and of each other, and one need not delay the other and any justification wherein the delay was due to independent documents was unacceptable. The court held that irrespective of the pending order of the respondent’s application, the respondent was legally bound to file the written statement at the designated date, within the time limit of 120 days. The supreme court also in its judgment rebuked the Delhi High court decision wherein the court accepted the respondent’s written statement even after the violation of the 120-day limitation and held that a court cannot exercise or abuse its inherent powers in violation to pre-determined rules governing matters at hand. In conclusion, the Supreme Court over the course of this judgement reflected over the course of law in connection with commercial suits and laid down a precedent regarding the Rules laid down in the CPC and adjudicated and decided the outcome, being that a written statement submitted in contravention of the 120 day delay will be rendered as non-existent.
__________
**Aman Kumar Yadav and Arjun Chakladar, 2nd Year, B.A.L.L.B(Hons), National Law Institute University, Bhopal.
[1] M/s SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. [Civil Appeal No. 1638 of 2019]
[2] Order 1, Rule 1 of the CPC provides for a period of thirty days for the respondent to file their written statement which can be further extended to the maximum duration of 90 more days. That makes it a total of 120 days at the disposal of the respondent for filing of claim or counterclaim from the date of issuance of summon.
[3] Order 1, Rule 10 of the CPC provides Court with powers to render a judgment in case the respondent fails to file a statement in the prescribed time limit.
[4] R K Roja v. U S Rayudu,[ (2016) 14 SCC 275].
[5] Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, 1962 AIR 527.
[6] Admin Lawnn, Supreme Court Judgement on written Statement in SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. & Ors, LAWNN.COM, https://lawnn.com/written-statement.
INTRODUCTION
The advent of Information and Communication Technology (ICT) has had a huge impact on the manner in which people transact and communicate business nowadays. There has been an enormous increase in the transactions which are electronic in nature. Such impact is not limited to business transactions only but it extends to the law of evidence as well. One of the inevitable outcomes has been the cognisance of electronic evidence by the courts in India. Sections 65A and 65B of The Indian Evidence Act (hereinafter ‘Evidence Act’) were introduced by the amendment in 2000. The objective of this amendment was to lay down the standards for admissibility and authentication of electronic evidence in the courts. However, this endeavour for standardisation has not achieved much success. The primary reason behind this has been the divergence in application of law in courts across India. One such significant divergence is in the admissibility of electronic evidence under section 65B of the Evidence Act.
FACTS OF THE CASE
In the general election to the Kerala Legislative Assembly held on 13.04.2011, the first respondent was declared elected to 034 Eranad Legislative Assembly Constituency. He was a candidate supported by United Democratic Front. The appellant contested the election as an independent candidate, allegedly supported by the Left Democratic Front. Sixth respondent was the chief election agent of the first respondent. There were five candidates. Appellant was second in terms of votes; others secured only marginal votes. He sought to set aside the election under Section 100(1)(b) read with Section 123(2)(ii) and (4) of The Representation of the People Act, 1951 and also sought for a declaration in favour of the appellant. By order dated 16.11.2011, the High Court held that the election petition to set aside the election on the ground under Section 123(2)(a)(ii) is not maintainable and that is not pursued before us either.
ISSUES CONCERNED WITH THE CASE
· Whether an electronic record by way of secondary evidence shall be admitted in evidence?
AGUMENTS PRESENTED
Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2).
JUDICIAL INTERPRETATION OF SECTION 65B OF THE EVIDENCE ACT
The question of admissibility of electronic evidence was first raised in the case of State v. Mohd. Afzal. The Delhi High Court held that “compliance with sub-sections (1) and (2) is enough to make and admissible and prove electronic evidence”.
Further, in the case of State (NCT of Delhi) v. Navjot Sandhu, the SC held that “even if the requirements under section 65B(4) were not satisfied, evidence could be produced under sections 63 and 65 of the Evidence Act”. This judgment resulted in a significant relaxation of standards for admissibility of electronic evidence. At the same time, various courts have also rejected both Afzal and Afsan Guru. Many courts chose to continue to press upon submission of certificate for authentication.
On an overall analysis of the above mentioned cases, it follows that the admission of electronic evidence has been based on the judicial discretion. However, the SC made an effort to settle all these controversies in the present case. With the intention of bringing uniformity in practice, the Supreme Court interpreted section 65B as mandating one particular method of authentication, i.e., submission of certificate as a compulsory pre-condition for admissibility of electronic evidence.
JUDGMENTS BY SUPREME COURT
Following the principle of “generalia specialibus non derogant”, which means special law will always prevail over general law, Supreme court in the present case overruled the holding of Afzal Guru’s case and held inadmissibility of the CD’s as these electronic evidence produced without the compliance of the requirement of the section 65B. Here the special provision of the law is the section 65B of the Indian Evidence Act 1872.
CRITICAL ANALYSIS OF THE CASE
Supreme Court believes that the issue of genuineness cannot be dealt with at the stage of admissibility itself. The Supreme Court is of the opinion that ‘genuineness’ is a question that arises after the admission of evidence. This seems to be incorrect for two reasons:
(i) It is neither consistent with the plain language of section 65B nor with the policy behind it. Supreme Court has itself acknowledged in the case of Anvar that the purpose behind the section is to ensure ‘authenticity and source’ of the evidence. This is undoubtedly a question related to the genuineness of the evidence.
(ii) The dictum by the Supreme Court that genuineness “go to the weight of evidence and not to admissibility” is not proper. If one analyses the Evidence Act, it is evident that it does not separate the process of splitting evidence into stages of admissibility, weight and relevance. The only indication to the stages of admissibility and relevance is under section 136. It states that “if the judge thinks a fact is relevant, he ‘shall’ admit it.” Therefore, it seems that the Act does not recognise admissibility and relevance as different evidentiary stages. Rather it conflates both of them.
CONCLUSION OF THE CASE
The judgment in present case signifies the concern of our judiciary on reliability of the electronic evidences. The new approach set up by the court is that the general law relating to secondary evidence is not applicable in electronic evidence. Electronic records being more susceptible to tampering and alteration so if the electronic records, which is not complying with the special provision of the Indian evidence act that is section 65B, may led to the travesty of justice.
After the Anvar case, for the presentation and admissibility of any electronic evidence like computer data, CD, VCD, chip any other digital record, there is mandatory necessity to comply with section 65B of the Act.
SIDHARTHA VASHISHT @ MANU SHARMA
VERSUS
STATE (NCT OF DELHI)
CRIMINAL APPEAL NO. 179 OF 2007
INTRODUCTION:
The present case consists of a murder of a young bartender, Jessica Lal by an influential person. It shows the mentality of the individuals of the society and that a person can take another’s life just because she refused to serve alcohol after the party was over. It shows that the people like accused can go to any extent to show their power. This case involves the intricacies of criminal law and how every effort is made to escape Justice but ultimately all the accused were punished for the murder of the girl and Justice was delivered.
FACTS:
The present case throws light on the horrifying culture of India as a nation and the bullying behaviour that is shown by those who belong to the family of rich or some big names in the society. The incident in the present case happened late night on 29-30.04.1999 at about 2 a.m. at a restaurant named “Once Upon a Time” which was also known as “Tamarind Cafe” where a ‘Thursday Party’ was going on and Jessica Lal was one of the bartenders where the accused, Manu Sharma entered the place with his friends and asked the waiter to serve them drinks. The request was denied as the party was over and there was no more liquor available at the restaurant to which the accused got angry and insisted them to serve liquor. Jessica Lal came and tried to make them understand the simple thing that no more drinks can be served as the bar had run out of drinks and also the party was over. The accused took this point on his ego and took out his gun further threatening to serve liquor and when finally, the deceased denied, he fired two shots- one at the roof and other towards Jessica Lal which hit her near her left eye. After Manu Sharma’s friend asked him why he did that and that it is a serious matter, they fled away from there carrying the pistol. The deceased was rushed to the Ashlok Hospital and from there shifted to Apollo Hospital where she was declared dead early morning on 30.04.1999. After the police got information and after the basic investigation, at about 4.00 a.m. on 30.04.1999, the F.I.R. was registered. The accused Manu Sharma got charges under Sections 302, 201 read with 120 B IPC and Section 27 of the Arms Act, accused Amardeep Singh Gill was charged under Section 120 read with Section 201 IPC, accused Vikas Yadav and Alok Khanna were charged under Section 120 read with 201 IPC read with 34 IPC., accused Harvinder Chopra, Vikas Gill, Yograj Singh and Raja Chopra under Section 212 IPC and accused Shyam Sunder Sharma was charged under Sections 201 and 212 IPC. The Trial Judge acquitted all the accused on 21.02.2006.
When the matter went before the High Court of Delhi, it found all the accused guilty and convicted all them with the following sentences- Sidhartha Vashisht @ Manu Sharma (appellant in Crl. A.No. 179 of 2007) under Section 302, 201/120B IPC and Section 27 of the Arms Act and sentenced him to undergo imprisonment for life together with a fine of Rs.50,000/- to be paid to the family of the victim and in default of payment of fine, to undergo further imprisonment for three years and also sentenced him to undergo imprisonment for four years for the offence under Section 27 of the Arms Act with a fine of Rs.2000/- and in default to further undergo imprisonment for three months. He was further sentenced to undergo imprisonment for four years for the offence under Section 201/120B IPC together with a fine of Rs. 2,000 and, in default, to further undergo imprisonment for three months. The High Court also sentenced Amardeep Singh Gill @ Tony Gill (appellant in Crl.A. No. 157/2007) and Vikas Yadav (appellant in Crl. A.No.224/2007) to undergo rigorous imprisonment for four years and a fine of Rs.2000/- each and, in default of payment of fine, to further undergo imprisonment for three months under Section 201/120B IPC. As the above order was not acceptable, the matter went to the Hon’ble Supreme Court of India.
ISSUES:
a) Whether the prosecution has established its case beyond reasonable doubt against all the three accused?
b) Whether the trial Court is justified in acquitting all the accused in respect of charges levelled against them?
c) Whether the impugned order of the High Court imposing punishment when the trial Court acquitted all the accused in respect of the charges levelled against them is sustainable?
JUDGEMENT:
The Hon’ble Court took a look at the various statements given by the witness. After examining various witnesses who were at the party that night, this Hon’ble Court came to the conclusion that the accused was present there at the party and that two gunshots were heard by all those who were present there. Also the post mortem conducted on the deceased established that the cause of death was the gun shot in her body. It is pertinent to note that the main eyewitness PW2 turned hostile under the influence of accused Manu Sharma when the matter was ongoing by making frivolous claims.
This Court then further went on to examine what constitutes F.I.R. and did the telephonic calls made to the police constitutes the F.I.R. It was held that informing the police on telephone doesn’t constitute F.I.R. however it is a message to the police to reach the place of offence and therefore the statement which was given by Shyan Munshi constitute an F.I.R.
It came to notice that the vehicle i.e. Black Safari was lifted in the morning from the place of incident was registered on the name of Piccadilly Agro Industries, Chandigarh and that the accused Sidharth Vashist @ Manu Sharma is the director of the said industries.
Further, the Tata Safari was recovered on 03.05.1999 from Noida, Sector 24 with a live bullet and broken glass pieces which was hit by the lathi of police when the car was being taken away from the place of offence which further proved the identity of car.
The Supreme Court is convinced regarding the presence of accused Manu Sharma along with co-accused Amardeep Singh Gill, Alok Khanna and Vikas Yadav at the party and that the incident of forcibly taking the lack Safari from the place of crime proves the presence of accused there.
The Court also came to the conclusion that the accused Manu Sharma was in the possession of the .22” P. Berretta Pistol made in Italy from which the fire was shot and he was also the owner of the same. The two live cartridges recovered from the spot and the other two from the Black Tata Safari are similar and hence it also shows that the gun from which fire was shot and the cartridges recovered from the car are similar. Also this Court very clearly made out the circumstantial evidence as all the accused were constantly in touch with each other after the commission of crime.
This Hon’ble Supreme Court therefore came to the conclusion that the Trial Court made an error in the present case by acquitting all the accused and that the Hon’ble High Court has rightly convicted the accused on just charges. That by means of various testimonies of witnesses, the evidence connecting the vehicles and cartridges to the accused – Manu Sharma as well as his conduct after the incident prove his guilt beyond reasonable doubt and that the sentence passed by the Hon’ble High Court is absolutely just and fair. The High Court has rightly convicted the other two accused, namely, Amardeep Singh Gill @ Tony Gill and Vikas Yadav.
CONCLUSION:
This case portrays a sorry state of affairs in the India culture, a classic example of how and to what extent a rich and an influential person tries to violate the law by doing extreme acts and after committing the heinous crimes, he doesn’t want to apologize or feel the guilt for the same rather what he does is take the law in his hands, tries to use influence and power to escape from the clutches of Justice. They know very well how to use the law or rather misuse the law for their benefit or favour. In Indian culture, a person who has some connections or influence feels that he is given a license to commit any act and can do anything what he wants to which no one can raise objections or react. This case portrays that how a rich person has gone to the extent of killing a girl just because she refused to offer him the drinks and the reason behind that was the bar was closed. Also they tried to bribe the witnesses to change their statements so that the case can be closed on the basis of lack of evidence. The prime witness turned hostile. The case shows the anger, the frustration and the upbringing of such children who can kill a person just because she denied him the drink. A human life is valued like peanuts and the influential person thinks that they a right over such persons, to kill them whenever they don’t obey to their instructions. This notion is very wrong and it needs to be addressed urgently.
By the means of this Judgement, the Hon’ble Supreme Court of India has showed that the human life is of utmost importance and nobody has a right to take other person’s life. It was upheld in this case that no matter how rich or influential you are, in the eyes of law you are equal with those who have committed the same type of crime and that just because a person is rich doesn’t reduce his sentence or nullify the same. The Court says that no matter how rich or influential a person is, if a person commits a crime or does something which is unacceptable according to the Criminal Jurisprudence, he has to face the consequences for the same. Every person is equal in the eyes of the law. It is high time that a change is brought in the society and parents teach their children about the difference between right and wrong, no matter whether they are rich or poor. The person who does such type of crimes lack conscience. It is time that the rich people start valuing the lives of others and not just treat them like a garbage.
A great philosopher once said “Be the change you want to see” and it is time that each and every person moulds himself according to the present time and that those norms of rich and poor and influential shall be done away with.
INTERESTED PARTY CANNOT APPOINT A SOLE ARBITRATOR
Judiciary has been always widening the ambit of the legislative act through its interpretation while keeping the decisions in the ambit of the intent behind the law. The judiciary has played a crucial role by deciding the cases on the matter related to the appointment procedure. The judicial decisions in the case of Perkins v. HFCC have clearly stated that no party having interest can appoint a sole arbitrator.
PERKINS EASEMENT ARCHITECT DPC & ANR v. HFCC INDIA LTD[1],
The case was brought under section 11 clause 6 r.w. section 11 clause 12 sub clause (a), challenging the appointment of a sole arbitrator. In the present case the SC held that the person who has the interest in the outcome of the award cannot unilaterally appoint a sole arbitrator for any such dispute settlement.
Facts:
The Respondent is an agency which made a proposal to design the proposed All India Institute of Medical Science. The Applicants Perkins Eastman Architects DPC, an architectural firm office situated in New York and Edifice Consultants Pvt. Ltd., a Mumbai based firm responded to the proposal by submitting their respective bids. The Respondent declared the Applicants as successful bidder and the project was given to the Applicants. The contract was entered between the parties by awarding the letter of intent to the Applicants. The contract specified the dispute resolution method under clause 24 stating to adjudicate any dispute relating to the contract between the parties the appointment of a sole arbitration to shall be made by the chairman and the managing director of the Respondent company. It was specified under clause 24 that upon the request made by the Applicants, the Respondent has to appoint a sole arbitrator.
The Respondents alleged the failure on the Applicant’s part only after six days from date on which the contract was signed and issued a notice to stop work to the Applicants. The Applicants stated that the Respondents from starting were not cooperative and intentionally avoiding and stopping their work. Further the Respondents issued the termination letter against the Applicants for not complying the contractual obligations, which the Applicants denied. Afterwards the Applicants issued a notice on April 11 2019 to invoke dispute resolution clauses. The Applicants submitted that according to the clause the decision for the notice dated 11/04/19 needs to be taken within 30 days, which was not the case in the present situation as only reply to the notice was sent by the Respondents stating that the reply to the Applicants’ notice will be issued within the 30 days from the date of the Respondents’ reply.
The Applicants filed an appeal to the Director (Engineering) according to terms of clause 24 but the director failed to discharge any of his obligations with respect to clause 24. In terms of clause 24, the Applicants issued the letter that appointment shall be made of a sole arbitrator by the CMD of the Respondent Company. However, the CMD failed to appoint the arbitrator within 30 days from the Applicants’ request and the Chief General Manager of the Respondent company issued a letter stating that Major General K.T. Gajria is appointed as sole arbitrator which was done after expiring of the stipulated period.
Upon these facts, the Applicants submitted an application before the SC under Section 11(6) r.w. section 11(12)(a) of the Arbitration and Conciliation Act 1996 to appoint a sole arbitrator for the dispute arose according to the contract between the parties.
Summary of the Arguments made by the Applicants
The Applicant submitted before the Supreme Court that the appointment of a sole arbitrator was not proper. The Applicants presented that clause 24 of the contract specified that the competent authority to appoint a sole arbitrator were the Chairman and MD. However, the appointment was done after the stipulated time, which also was not made by the competent authority. Thus, there was failure on the part authorities of the Respondent company therefore, upon these facts the Applicants submitted the application making the request to appoint an arbitrator according to the provision laid under section 11 of the act.
The Applicants submitted proposition held in TRF Ltd. v. Energo Projects Ltd[2] the court held that appointment of an interested party [Managing Director] as a sole arbitrator is invalid as by the operation of law he became ineligible to appoint, similarly he could not nominate another person to act as an arbitrator as when there exist the clause of ineligibility of MD as arbitrator than the power to appoint the same cannot be exercised by the MD and it cease to exist with the same analogy of biasness. Thus, it was argued that the Chairman and the MD of the Respondent company would be interested party in the decision and an outcome of the dispute between the parties therefore, the upon the essence of amendment to Section 12 applied in the judgment of TRF Ltd. case, the person interested does not have power to appoint a sole arbitrator as the element of the impartiality absent in the process.
The Applicants also submitted that the present arbitration is International Commercial Arbitration as one of the Applicants is lead member of the consortium having its registered office in New York thus, satisfies the requirement of Section 2(1)(f) and therefore, the petition can be brought under section 11(6) r.w. section 11(12)(a).
Summary of the Arguments made by the Respondent
The Respondent submitted before the court the period of the requisition expired on a Friday and the appointment of the arbitrator was done on the first working day after the said date. They also submitted that the appointment was properly as per the procedure laid down in clause 24 by the Chairman and the MD, and only the communication of the appointment was done by the Chief General Manager of the Respondent Company.
The Respondents also argued that the present petition cannot be entertained as the matter does not appear to be an International Commercial Arbitration as according to clause 9 of the consortium agreement, the execution of the project was responsibility of both the Applicants and they were jointly and severally for it.
Issue Raised
On the arguments advanced by the parties the Supreme Court raised the following issues to pass necessary judgment in the present case:
a) Whether the present dispute is of International Commercial Arbitration [as only than the application under section 11 clause 6 r.w. section 11 clause 12 sub clause (a) can be presented]?
b) Whether the appointment of a sole arbitrator was not independent or impartial?
c) Whether there exists a case where the Court can exercise its power to appoint an arbitrator in the present case?
Decision
The SC had accepted the petition submitted by the Applicants and passed the decision that the appointment of a sole arbitrator was not proper and thus the new arbitrator should be appointed.
Judgment
⮚ The Supreme Court while dealing with the issue of arbitration being an international arbitration allowed the petition. The SC considering the requirements to definition given under section 2(1)(f), held that the present case the Applicant no. 1 i.e. Perkins ltd. being the company having its registered office in New York, therefore satisfy that the present dispute will come under International Commercial Arbitration. The court further held that only due to its nature of International Commercial Arbitration the court can pursue with the application made under section 11(6) r.w. section 11(12)(a), as it would not have dealt the application if the arbitration was not an International Commercial one.
⮚ Further on the issue related to independency or impartiality of a sole arbitrator, the SC held that the person having the interest in an outcome of the decision passed cannot exercise the power to appoint a sole arbitrator. While deciding this issue the SC considered the Applicants’ submission. The SC relying on the judgment passed in case of TRF Ltd. which laid down the principle that the person who has interest in an outcome cannot be appointed as an arbitrator and should not have to appoint a sole arbitrator as that person become ineligible and incompetent to by the statutory norms laid under section 12(5) of the Act by virtue of the arbitration amendment act 2015. It was further observed that when the person is ineligible the power to appoint an arbitrator by him will not be a fair appointment as the appointment will be done with the same analogy of not being an independent or impartial appointment and will lead to bias possible outcome.
⮚ The SC also considered the report of Law Commission and decision in case of Voestalpine Schienen[3], which laid importance to create a healthy arbitration environment and thus upon this the application made in the present case is accepted by the Court.
⮚ The SC on the issue of the power of the court to appoint the arbitrator noted the decision passed in case of Walter Bau A G[4], “unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the court exercising jurisdiction under section 11(6) of the Act, acceptance as a fait accompli to debar the jurisdiction under section 11(6) cannot be made”[5].
⮚ The SC also observed the judgment passed in case of Indian Oil Corporation Ltd. v. Raja Transport (P) Ltd[6] that the competent court can appoint the arbitrator to necessitate the importance of independent and impartial arbitrators, if there exist justifiable doubts as to the independence and impartiality of arbitrator and if also other circumstances exist showing that the appointment of independent arbitrator was done by avoiding the procedure.
⮚ Thus upon these principles, the SC held that the appointment of a sole arbitrator through the letter sent by the Respondent hereby is annulled and thereafter appointed an arbitrator for the dispute adjudication between the parties. The SC further declared that arbitrators have to make mandatory declarations related to independence and impartiality given under section 12 [as amended by the arbitration amendment act 2015] and the ability to devote sufficient time and further comply with section 29A of the Act in respect to complete the arbitration within the time prescribed.
⮚ Therefore, the SC by accepting the petition of the Applicants held that the appointment of a sole arbitrator by the Respondent was invalid and therefore set aside the decision of the appointment by the Respondent and pass the order to appoint the new arbitrator complying with the provisions laid under section 12 and other relevant sections of the Act as amended.
CONCLUSION
The SC delivered the judgment in consideration of the natural law principles. The judgment established the fact that the dominating party shall not misuse the power in appointing a sole arbitrator creating the situation of biasness by ignoring the basic notion of justice and law. The decision clarified that no one can take part in the appointment process having any interest in the arbitral proceeding making the process the impartial and effective one. The judgment created a healthy arbitration environment in the appointment process as all the arbitrations agreements the procedure to appoint a sole arbitrator shall be done mutually and if they cannot agree on the same, the decision shall be passed on to the arbitral institutions designated by the SC or the HC, as case may be. Further, in making an appointment more justifiable and impartial the SC through the decision had given the power to annul the arbitrator appointed to the competent court of jurisdiction. The SC has effectively by this decision clearly established that a strict interpretation should look over the rule of independence and impartiality in appointment and constitution process to promote fairness and free it from any biasness.
References:
[1] 2019 SCC OnLine SC 1517.
[2] (2017) 8 SCC 377.
[3] (2017) 4 SCC 665.
[4] (2015) 3 SCC 800.
[5] Id., p. 806, ¶ 10.
[6] 12 (2009) 8 SCC 520.
Introduction
The objective behind the enactment of trademarks act is to protect the company, institutions or any business entity from any loss on ground of the similarities of their brand name and logo. The Trademark Act addresses various issues relating to the deceptive tricks used by the competitor to gain advantages by unhealthy practices in blossoming their business.
“TRADEMARK”- The term trademark is defined in Section 2 (zb)of the act as a mark capable of being represented graphically and it denotes the goods manufactured different from that of others. The mark also consists of colour, shape and type of good that is manufactured by the manufacturer.
“DECEPTIVELY SIMILAR” is defined in section 2(h) of the act as a mark shall be considered to deceptively similar if it’s degree of resemblance creates a confusion in the mind of buyer.
FACTS
The suit is filed by Bayerische Motoren Werke (hereinafter BMW), the company enjoys the title of one the biggest industrial company of the Germany. BMW is also considered to be on of the largest car manufacture in the world. The plaintiff manufacture goods of high standard and known for its quality product. The company has been manufacturing the motorcycle since 1923 and the motor car under the BMW tag since 1928. The plaintiff first obtained the trademark registration for the world famous BMW logo in 1917. The company has started its commercial ties in India in 1987. The company established its first assembling unit at Chennai. The Company’s logo after exhaustive and well-known use has passed the threshold of Section 2(1) (zg) and 11(6) to be considered as trademarks under Trademarks Act, 1999.
The defendant Deshwar Motor Works (hereinafter DMW) has started manufacturing, selling and marketing of the e – rickshaw, e -loader and e- cargo under the trademark of DMW. The act of defendant amounts to violation of the trademark rights of the plaintiff. The defendant’s trademark DMW has resemblance with the plaintiff’s BMW, the defendant’s logo is phonetically and visually similar so its creates confusion in the minds of consumer. The defendant has committed the act of passing off by adoption of the similar kind of mark with malafide intent
ISSUE RAISED
· Whether the trademark being used by the defendant is deceptively similar or nearly resembles the mark of the plaintiff or is likely to deceive or cause confusion.
ARGUMENTS ADVANCED
CONTENTION OF PLAINTIFF
Learned Counsel on behalf of plaintiff contended that the defendant chosen the trademark logo having similar sound, structure and appearance to create confusion in the mind of consumer.
The counsel further contended that the defendant’s has created dilution of the plaintiff’s brand name. The counsel also contented the section 29(4) of the trademarks act, 1999 envisages that dilution of a brand name can be caused by selling the goods of inferior quality with a logo having similar phonetic and visual representation.
The counsel further contended the dishonest intention of the defendant is explicit by their act. The adoption of a logo having approximate similarity with the logo of well-known entity is to create confusion in the mind of average consumer.
CONTENTION OF DEFENDANT
Learned counsel on behalf of the defendant contended that the mark of defendant is different from plaintiff visually, structurally, and phonetically.
The counsel further pleaded that the class of business and the buyer of the product is completely different from that of plaintiffs. The defendant’s company has also applied for the registration of inverter which is not manufactured by the plaintiff’s company.
The defendants counsel further pleaded that the value of product of the defendant is 35000 whereas the value of the plaintiff company product is minimum 35 lakhs.
COURT’S REASONING
The Court observed the facts and circumstances in the case refereed to the principle of identical similarities established in J.K. Oil Industries v. Ganpati Food Products & Ors.,[1]wherein court stated that in similar situation, remarks of Justice Desai holds a substantial point. Justice Desai stated that the language of the logo is English which is a foreign language for the Indian masses. The difference of a single letter in the logo with similar phonetics sound and visual similarity would create confusion in the mind of the average consumer.
The court further analyse the judgement in AmritDhara Pharmacy v. Satya Deo[2] wherein the respondent company has filed for its name as ‘Lakshmandhara’ and the area of business of the company was cure of ailments by providing quality medicines. The appellant challenged the name as they were operating in the same area with name “Amrit Dhara”. The Supreme Court observed that the term “likely to deceive” has different interpretation based on the circumstances and facts of the case. Moreover, the onus is on the applicant to satisfy the registrar that his trademark is valid, and it does not have resemblance with any registered already. The trademarks under section 8(a) and 10 (1) provides for the same. Further, Court stated that the principle applied by court in identifying the resemblance is not dynamic.
Durga Dutt v. Navaratna Laboratories[3] is the case where court stated that if the court concludes that mark used by the defendant has resemblance phonetically, visually or otherwise, the case is established against the defendant no further evidence is required to prove the case.
The Court has also dealt with the concept of Principle of Dilution with erudition. The court stated that the Principle of Dilution has two ingredients to satisfy. The court first focussed on the section 29(4) of Trademarks Act, 1999 which reads as follows:
“29. Infringement of registered trademarks. —
(4) A registered trademark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which—
(a) is identical with or similar to the registered trademark and
(b) is used in relation to goods or services which are not similar to those for which the trade mark is registered and
(c) the registered trademark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trademark.”
The Court observed that in ITC Limited v. Philip Morris Products SA and Ors[4], the applicability of test of dilution was discussed and quoted “the test here (for dilution) is not exactly the same. For one, Parliament has consciously eschewed the “deceptively” similar standard-which is defined by Section 2, in relation to infringement claims under Section 29(4). This would mean that the identity or similarity standard is a notch higher — the claimant has to prove or establish that the two marks are identical with or similar to each other. The question of deception does not arise here. There must be a near identification of the two marks or they must have the closest similarity. The second aspect is that the other elements necessary to establish dilution dissimilarity of goods, the claimant mark having a reputation in India; the use of the mark without due cause, resulting in detriment to it, or the defendant taking undue advantage, have to be established. These ingredients are all to be established, as the conjunctive “and” is used, in Section 29(4).”
COURT’S DECISION
The Court held that the brand of defendant is visually and phonetically similar. The act of having this brand is to encash upon the goodwill of the plaintiff’s brand. Such use of the plaintiff’s brand is detrimental to the reputation of the plaintiff’s brand. So, the court stated the prima facie guilty of trademark is proved against the petitioner. The ad interim injunction is passed barring the defendants, its officers, agents etc. from manufacturing, exporting, importing or offering for sale, advertising or in any manner dealing with goods not limited to E rickshaw or any good bearing the marks DMW or anyother mark deceptively similar to that of BMW.
COMMENTS
The Court in this judgement has referred many cases for the references and led to the conclusion that the defendant has committed the act of infringement of the trademark. But, it’s the time for the court to devise new reasoning and test to determine the test of determining that the very mark is deceptively similar. The power given to registrar is also arbitrary and it need to be regulated. The entire course of action arises by the action of registrar when he allows any kind of trademark. The registrar should mandatorily be provided with recent judicial pronouncement so he will be in better condition to make a reasonable classification of deceptively similar marks.
References
[1] MANU/JK/0453/2017.
[2] AIR 1963 SC 449.
[3] AIR 1965 SC 980.
[4] ILR (2010) 2 DELHI 455.
JUDGE(S): CHIEF JUSTICE SUDHIR MITTAL
DATE OF DECISION: 10-02-2020
Failing of the students in their respective university exams can-not set the criteria to defy the work ethics of the university administration . Just because you failed on the university examination you cannot challenge the trustworthiness of the university administration. The failure of the student doesn’t set a parameter for the transparency and Bonafide intention of the university towards its institution. The recent judgment was given by the High Court of Punjab and Haryana dismissing the petition filed by the LL.M. student, who is also a Judicial officer (Metropolitan Magistrate-cum-Civil Judge in Delhi) and pursuing the LL.M. course (correspondence) from the Maharishi Dayanand University, Rohtak. she appeared in one of the semester examinations, subject Insurance law, and failed. She re-appeared for the exam and again failed. After that, she went for re-evaluation but got no positive response (marks didn’t increase) from the university administration. The argument was made by her that she could not get failed because she performed tremendously and had secured 72 marks out of 100 in the same subject in her L.L.B examination. The paper in the L.L.M examination was relatively simple and thus, the petitioner could not fail. After that, the petitioner alleged that the University was having mala-fide intention and was doing the malpractices in the name of the re-evaluation of answer sheets after exams. The petitioner also failed at the time of re-appearing for the exam and the revaluation procedure didn’t help her. The petitioner also alleged that a "racket" was going on in the University and they were doing this to extracting the money from the student in the name of the re-evaluation fee. [1] Which is against the university ethos and wrong.
· Whether the University in the name of the re-evaluation of the answer sheets of the examinations extracting money from the student?
· Whether the allegation made by the petitioner that “racket” is going on in the University is Valid or Not?
On February 10th, 2020, The High Court of Punjab & Haryana passed an order that Just because someone was a meritorious or well-qualified student in their under graduate periods, not in any manner it means that she cannot fail in the exam appeared by him or her in her Post Graduate days. Although, the circumstances are like that, the subjects are same as it was in her Under Graduate days. The court held that "The fact that the petitioner was a meritorious student in L.L.B does not mean that her performance cannot fall. Admittedly, she is currently working as a Judicial Officer and thus, she may not have been able to devote adequate time to her studies. The writ Court cannot examine whether the paper was simple or difficult nor can it opine on the conduct of examiners unless the material is placed on record to substantiate the allegations. There is nothing on record to indicate any mala fide. The grievance is based upon apprehensions and thus, cannot be accepted,". The order of the high court mentioned the point that being a scholar student doesn’t decide the viability of future examinations. The Court recounted that the petitioner had failed in the subjects of Insurance Law and Law of Banking and Negotiable Instruments. On re-evaluation, she passed the subject of Law of Banking and Negotiable Instruments, but could not pass the subject of Insurance Law. You cannot guarantee that students would maintain the same threshold until his/her education period. In the present case, petitioner is judicial officer posted in Delhi there was a sufficient chance that due to which she may not have been able to dedicate ample time to her LL.M. studies. It further clarified that mere "apprehension" of malpractice was not sufficient and that cogent material was necessary to seek judicial interference. The writ Court cannot examine “whether the paper was simple or difficult nor can it opine on the conduct of examiners unless the material is placed on record to substantiate the allegations”. There is nothing on record to indicate any mala fide. The grievance is based upon apprehensions and thus, cannot be accepted.
The High Court decided the case on the grounds of merit and so the judgement is balanced in a manner. The Judgment passed by the high court is adequate and valid in every sense. The petitioner was alleging that the university was having ‘racket’ which extract money in the name of re-evaluation. The court pointed out the fact that complainant never gave any solid or authentic evidence to prove her points. The points mentioned by the petitioner got no co-relation with the allegation placed of the work ethics of the University. The petitioner argument was solely based upon the soil foundation without having any receiving ends. In case, the petitioner has evidence to show that a racket is in operation in the respondent-University, she is at liberty to highlight the same through any other appropriate proceedings. In the present case, there was no evidence on record to prove the mal-practices of the university with the intention of earning money. The court has granted her liberty to initiate appropriate proceedings against the University, on the basis of cogent and convincing evidence. At last, the court held that the writ petition has no merit and was accordingly dismissed.
DATE OF DECISION- 31.05.2019
QUORUM : Hon’ble Mr. Justice Rajiv Sharma
A secret information was received regarding transportation of cows from one province to another in the violation of restrictions on the export of cows for meat slaughter in the state of Uttar Pradesh in trucks bearing registration no. NH37/1014 and HR-46/3285. The fact of the case arose in the year of 2004 the case of prosecution was held about 11:00PM when ASI Azad Singh and the other police officials were on their patrolling duty near a village NAGLA MEGHA CHOWK on Meerut Road. Jasbir Singh was the member of patrolling party an written statement about the information was sent to the concerned police station . Azad Singh arranged a picked on the Meerut Road . Police picket was near theYamuna bridge before Haryana-Uttar Pradesh border both the trucks stopped while crossing the picket. 15 cows were recovered from the truck no. HR-37/1014 and 14 cows were recovered from truck no. HR-46/3285. The drivers along with the conductors were apprehended. The documents of the trucks and the cows were seized. The Cows were send to nearest Gaushala for treatment and got examined. Challan was put against the trucks after completing all the legal formalities .The prosecution was held by three eyewitness in support of the case. The statements of accused were recorded u/s 313 of CODE OF CRIMINAL PROCEDURE, 1973. Documents of the truck were taken into possession. The petitioners were convicted and sentenced by trial court to undergo imprisonment for the period of two years and to pay a fine [i]of Rs.1500/- each for the offence u/s 4-b and Sec 8 of the PUNJAB PROHIBITION OF COW SLAUGHTER ACT, 1955. In default of payment of fine, to further undergo imprisonment for a period of 15days. Firstly they denied the case of their prosecution. The petitioners filed an appeal but it was dismissed by the learned appellate Court and reduced from two years to six months. Learned counsel appearing on behalf of the state has supported the prosecution case but the counsel appearing on behalf of the petitioners has failed to prove the case against the petitioners . Later an opinion was given in respect of the case in 2013, then a revised petition was submitted to the court and after several years.
The issue over here was whether it extended to vulnerable animals or pervades across all animals? While preserving the interests of non-human entities is less complicated for those which carry special meanings and emotions attached to certain communities and interests, the question is how can we protect the interest of such entities when it concerns but the entity that the court lands up providing personhood. Why the laws relating to protection of animals always fails to entitled for their rights.
The elaborative judgment took 104 pages, a single Judge Bench of India in Hon’ble High Court of Punjab & Haryana has taken various rules into their consideration relating to protection of animals . I agree with the decision made the Hon’ble High Court because laws are implemented for protection of welfare and thus our ‘welfare’ includes our environment which is an essential part of human being. Rivers have been declared as legal entities . In 1976, the 42nd Amendment to the CONSTITUTION OF INDIA introduced section detailing various Fundamental Duties . One of the Fundamental Duty of every citizen is to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures under Article 51A(g) in The Constitution Of India 1949.
The judgment held that there is nothing inherent in the concept of legal personality preventing its extension to Animals. Haryana High Court has declared All Animals As 'Legal Persons' & All Citizens Their Guardians an attempt to work towards animal welfare, Haryana has taken a wonderful step. The recent order has been passed in Punjab &Haryana High Court after a year of Uttarakhand passing an order to 'protect and promote greater welfare of animals'. Both orders were written and passed by Justice Rajiv Sharma who was transferred from the Uttarakhand High Court to the Punjab and Haryana High Court. The verdict reads, “The animals should be healthy, comfortable, well nourished, safe, able to express innate behaviour without pain, fear and distress”. They are entitled to justice. The animals cannot be treated as objects or property . The verdict will also issue a prescribed load draught animals will be allowed to carry while pulling a vehicle”. Justice Sharma signed the verdict by saying a motto 'live and let live' and also said,“All the citizens throughout the state of Haryana are hereby declared persons in loco parentis which means in the place of a parent as the human face for the welfare/protection of animals”.
JUDGES: JUSTICE NV RAMANA, JUSTICE SUBHASH REDDY and JUSTICE BR GAVAI
DECIDED ON 10 January 2020
Post abrogation of Article 370, on the eve when the Union Government took the final decision to issue the presidential order the state of J&K of its Autonomy, a complete blockade took place in the region on information and communication. Since then a few of the restrictions were lifted apart from that Right To Access Internet was infringed, According to Article 19(1)(a) of the Indian Constitution grants the Right to Freedom of Speech and Expression for every citizens. On 5th August 2019 Special status of Jammu & Kashmir was abolished and further it was divided into two Union Territories.
The issues which was arose before the Apex Court were -
Does the infringement of Right to Access Internet violates any fundamental Right?
Can the access to Internet ever be blocked. If so, under what circumstances can such an action be validly enforced?
The Supreme Court has declared Right to Access Internet as a Fundamental Right. A government cannot deprive the citizens of Fundamental Rights except under certain conditions that were been explicitly mentioned in the Indian Constitution.
THE SUPREME COURT ON 10.01.2020 LAID DOWN THE GUIDELINES REGARDING THE GOVERNMENT OF J&K-
Services of internet should be restored in Government & local bodies where internet misuse is less as business is completely dependent on internet
Internet ban in the state of J&K should be reviewed with immediate effect.
Internet cannot be banned indefinitely.
The suspension of internet and basic freedom cannot be arbitrary exercise of power.