lexpeeps lexpeeps – Page 67

This article is written by Bhavna Arul, a fourth-year law student from Symbiosis Law School.

INTRODUCTION

Till the end of the 20th century, there had been a long going debate between environmental concerns and economic needs. With an increase in globalization since the late 20^th century, small developing nations have often been left to pick between the environment and the economy. Countries such as Vietnam, Cambodia, Indonesia, etc. have been a production base for various MNC’s in various industries such as fashion, electronics, plastics, etc. These countries initially had a rich environment, which today suffers majorly from pollution and depletion. The UN in 2015 finally put an end to the economy or environment debate by picking a middle ground- sustainable development.

International trade possesses as a huge threat to the environment. Most developing countries have a rich base of natural resources. These resources are often exploited by huge MNC’s and leave a scarring impact on the planet. Climate change has been an alarming issue this year as many countries around the world are suffering the impact of it. In India itself, the summer of 2020 held a record-breaking temperature of 50 degrees, meanwhile, states like Assam, Kerala and Maharashtra have been under constant threat of floods and earthquakes in Gujarat has become more frequent than ever before. On a global scale, we have had the Australian bushfires, Indonesian floods, earthquakes in Russia and the Philippines, etc. Most of these natural disasters have been linked to climate change and environmental threats.

When we see laws relating to international trade, we realize its mainly in the form of agreements that countries have consented to. International organizations such as the WTO and the UN play a key role in such agreements and all countries that are parties to such agreements must follow what was decided. The UN recognized climate change and environmental threats as a matter of global importance and hence the United Nations General Assembly in 2015 decided on a set of 17 global goals to achieve sustainability. This was recognized in the popular Paris Agreement where all member countries agreed on cutting down on methods of trade that was potentially exploiting the environment.

Role of WTO

The WTO plays a key role in regulating international trade and commerce. When it comes to environmental regulations, the WTO understands the importance of a balance between economic and environmental growth in a country. Allowing for the optimal use of the world’s resources as per the objective of sustainable development and seeking to protect and preserve the environment are fundamental goals of the WTO. These goals are enshrined in the Preamble of the Marrakesh Agreement (the birth agreement of WTO) and these go hand in hand with the WTO’s objective to reduce trade barriers and eliminate discriminatory treatment in international trade relations between countries.

For WTO members, the aims of upholding and safeguarding an open and non-discriminatory multilateral trading system, on one hand, and acting for the protection of the environment and the promotion of sustainable development, on the other, can and must be mutually supportive. WTO rules, including specialized agreements such as the Agreement on Technical Barriers to Trade (which deals with product regulations), and the Agreement on Sanitary and Phytosanitary Measures (which concerns food safety and animal and plant health), provide scope for environmental objectives to be followed and for necessary trade-related measures to be adopted.

The Doha negotiation is was an important move by the WTO with regards to environmental concerns. It on achieving more efficient allocation of resources on a global scale through the continued reduction of obstacles to trade and on pursuing win-win-win results for trade, development and the environment. The Doha negotiation was the first international agreement where environmental issues had featured explicitly in the context of a multilateral trade negotiation.

Global Issues

International movement of goods continues to have significant environmental consequences, including increase of short-lived and long-lived greenhouse gas (GHG) emissions globally, the introduction of invasive species into waterways regionally, and harm to human health through particulate pollution locally. Production and waste management have been harming the environment in various manners. Governments around the world have been working towards these environmental concerns, however, the pace of finding a solution is extremely slow when compared to how rapidly the issue is growing.

Economically stable nations such as the United States, China, Japan, etc have disregarded environmental concerns. Trump, for example, withdrew the USA from the Paris Agreement. China continues with expanding industrialization to the extent of leaving irreversible damage on the environment. Small countries are often put at a pressure point when economically developed nations don’t abide by these agreements. Despite over two-third (higher voting power) of the member countries in UN and WTO being third world countries or smaller nations, the fear of economic exclusion pushes these countries to comply with what the economic giants agree on.

CONCLUSION

In a situation of an economic crisis, as we are currently facing, most governments will look forward to shooting up economic growth rates and increasing GDP in the successive financial years. However, the government this time must take into account the increasing natural disasters due to climate change and work towards a sustainable model of economic growth. A sustainable model for economic growth can be contributed by various factors, such as- what manufacturers are producing, how production is made, what a consumer is interested in buying, prices of goods, etc.

Governments must start regulating what an MNC is allowed to produce and manners of production to promote environmental development. Organizations like the WTO and the UN must start taking stricter action against countries that violate the agreements. The WTO Dispute Settlement Body previously has dealt with several disputes concerning environment-related trade measures. Such measures have sought to achieve a variety of policy objectives — from conservation of sea turtles from incidental capture in commercial fishing to the protection of human health from risks posed by air pollution. When we look at the judgements in landmark cases such as the US shrimp and turtle case or the asbestos case, the WTO has always sided with whatever is beneficial for the environment.

The disasters of 2020 is a wake-up call for all nations to take better care of the environment. Countries must make more stringent environmental policies and aggressive international trade must immediately stop to conserve what’s left of the environment.

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This Article is Written by Manav Sony from Amity University, Kolkata. The Article talks about the Critical Analysis of the Nithari Killings which shook the entire Nation at once.

Nithari Killings or Noida Serial Murders was one of the deadliest events which occurred in the years 2005 and 2006. These murders took place in the house of the well-known businessman Moninder Singh Pandher in Nithari, India. The accused Mohinder Singh was taken into conviction in two out of the five cases which were there against him and his servant who used to work for him was convicted in almost ten out of the sixteen cases. Both the accused were awarded death penalty from the court of law.

Talking about the events, firstly in the month of December, 2016, two residents of Nithari were reported that they actually knew the location of the remains of the dead bodies of the children who had gone missing in the previous two years’ time i.e. since 2003. The Municipal Tank which was there near the plot D5 contained the remains of the two children who were missing. The suspects claimed that Surinder Koli, who was the domestic help of that house was also involved in the mystery of the kidnapping and murder of these two innocent children. The residents of that area had contended that when they found a decomposed hand in the tank, they tried to contact the police immediately and the local authorities failed to take concrete action from that time. The anxious parents of the children who were missing for so long went to Nithari with their photographs and finally they got a big lead from the police over there.

The families of the children were actually blaming the Nithari Police because they woke up really very late and they failed to take prompt action. Their children would have been safe if the police could have taken some stricter action from the really first day itself. Instead of that, the Noida police tried to blame the family members and said that they were providing false information about the missing children i.e. the children were not missing and it was fake. The children were not minors but were adults who left home after having a fight with their parents. Basically, it was portrayed that the police were fully corrupted and thus they were given money by the criminals in order to hide the information regarding the entire case. The same contention was even raised by the residents of D5 because they were facing issues regarding the late investigation procedure. The police were so reluctant during the entire investigation that it was really clear that they were given money. Talking about the instances, one of the residents said that the police were trying to take the credit for discovering the dead bodies of the children, but it was actually the residents who dug them up. The police had also denied getting fifteen bodies and clearly said that the entire report will come through the DNA Test. Then, the police had sealed the entire crime spot and barred the entry of news media around it. The Central Government had given a lot of effort in order to collect all the relevant facts of the case and to catch the crime doers who were actually behind these brutal killings and also to ascertain whether this matter contained any “inter-state ramifications”. But the home ministry was basically interested in finding out the inside magnitude of the entire crime scene and the incidents involved. On 26^th and 27^th December, the employer of Koli, Mohinder Singh Pandher and Koli were taken into police custody because they were in connection with the kidnapping of “Payal.” After Koli confessed the entire thing to the police, they went to the crime scene and after that they started to dig the nearby areas and found the bodies of the children. All the bodies were brutally decomposed and not at all in a proper condition. After this, two policemen were immediately suspended because of the fact that they never took any prompt action when they were informed about a larger number of children missing. The angry residents were so angry that they charged into the house of the mastermind of this entire crime and also demanded to remove the tyrannical Government of Mulayam Singh Yadav. Slowly, the situation at Nithari village became really very angry and was out of control. Some angry mob of villagers started fighting with the police and were pelting stones at each other, just outside the residence of the mastermind. The police also arrested Pandher’s maid Maya under suspicion that she hid women inside the house. As more body parts were dug from the areas nearby, hundreds of residents got really scared and they figured out that there was a really big racket going on organ transplant. A doctor who lived close to the residence was under the suspicion of police a few years prior in connection to a kidney racket which was going on at his hospital. Many searches were conducted throughout his properties, and investigators found no such evidence to support any claim of the fact that he was actually involved in the incident. During the search operations, the investigating teams got some erotic literatures and a laptop computer which was connected with a webcam, which suddenly raised questions regarding the international child pornography racket. The police also got some pictures of Pandher with nude children and even foreigners during his international visits four times. It was simply alleged that Pandher used to supply these pictures abroad and he could easily link it to Paedophilia i.e. a type of disease. But it was later found to be untrue and not accurate. As the investigation proceeded, it was found that those nude children were Grandchildren of Pandher. There was no concrete link found relating to child pornography. The story in the end was found to be a media created rumour and nothing else. The accused were brought to the Directorate of Forensic Sciences in Gandhinagar City so as to undergo brain mapping and also polygraph tests so as to know the actual cause of the case on 4^th January, 2007 and also the Narco Analysis test five days after these two tests. The police informed the media that both the accused were really very cooperative during the tests and all the tests have been covered successfully without any hassle. Surinder Koli had also confessed regarding his crime once again to the police and thus a clean chit was given to his employer because he was really much unaware of the actions of Koli. Surinder had also revealed about all the deaths which took place through strangulations. He said that before killing them, he raped them and after that he took them to his washroom and cut them into pieces. Pandher was in the end declared as a much-depressed person and a womaniser. The two accused were then taken to the headquarters of CBI in Mumbai Jail on 11^th January,2007 night which was one day before the investigation was to be transferred to them. They continued to investigate the entire matter from the scratch and found three more skull and human remains at the crime scene. All the investigators found the drains outside the house and got three skulls, which were of those missing children and their body parts which also included leg, bones and torso.

Conclusion

In the end, in February, 2011 the Supreme Court upheld the death sentence of the culprits. In July, 2014 the President had rejected the mercy petitions filed for them. On 3^rd September, the court had issued death penalty against Koli. On the evening of 4^th September, Surinder was transferred to Meerut Jail because of the absence of hanging facilities. On October 29^th, 2014 the Court bench headed by CJI H.L. Dattu had rejected the death sentence review petition. After so many review petitions, the court had finally given death sentence to them in the 10^th conviction in the year 2019.

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This article is written by Tulip Das, currently perusing BBA L.L.B(H) from Amity University Kolkata. In this article, the author aims to describe judgement in India and the application of the same as per the Criminal Procedure Code 1973.

INTRODUCTION

“The safety of people shall be the highest law” – Marcus Tullius Cicero

The Indian Judicial System is one of the most prominent and upright judicial systems in the world. The function of the judiciary is to interpret and apply the laws of the land to cases coming before it and deliver speedy and fair justice to all. Judgement means the ability to make free, fair, and considered decisions or to come to a sensible conclusion. The concept of judgement in India is properly defined in Section 2 (9) of the Civil Procedure Code (CPC). It says, “judgment” is the statement given by the Judge on the grounds of a decree or order.

However, there is no proper definition of judgement mentioned in the Criminal Procedure Code, 1973. In the case of Surendra Singh v. State of UP [1954 AIR 194, 1954 SCR 330], the Supreme Court defined said that “A judgement is a final decision of the court intimated to the parties and the world at large by formal “pronouncement” or “delivery” in open court and until a judgment is delivered the judges have a right to change their mind”.

Application of Judgment in India under the Criminal Procedure Code, 1973

Chapter XXVII, Section 353 to 365 of the Criminal Procedure Code, 1973, deals with The Judgement. However, there is no definition of “judgement” present in the Code, but it is to be understood as the final order of the Court.

In the case of Ismail Amir Seikh vs. the State of Maharashtra, it was held that a judgment is the act of judging. It was pointed out that judgment should distinctly mention the reason for accepting an argument and rejecting the other.

This chapter sheds light on the various provisions related to “judgement” in a Criminal proceeding.

This chapter applies all across India.

SECTION 353 – Judgment

Ratio decidendi and Obiter dicta form an important part of the judgement. Ratio decidendi of a judgement may be defined as the principles of law formulated by the Judge to decide the problem before him whereas, obiter dicta means observations made by the Judge, but are not essential for the decision reached. These two are very important as they define the legal principles which are useful to the legal fraternity.

If the judgement is of acquittal: –

Whether the evidence of the prosecution failed to prove the guilt of the accused or merely failed to prove it beyond a reasonable doubt.
If the act or omission from which the liability might arise doesn’t exist.

If the judgement is of conviction: –

The essential elements of the offense committed by the accused and the intervening circumstances which led to the commission of this offense.
Participation of the accused as the principal perpetrator, or accomplice or accessory.
The penalty that is imposed on the accused.

The absence of a pleader during the pronouncement of a judgement shall not be deemed to be enough reason for causing any delay in judgement.

SECTION 354 – Language and Contents of the Judgment

1. Under Section 354, of CrPC, it is stated that every judgement should be:

In the language of the Court.
Shall contain the points of determination and the reason for the same.
The offense should be specified and the reason for the same should be given for the same.
The offence committed must be mentioned in the IPC or any other law under which the crime is committed and the punishment is given.
If the offender is acquitted, the offense for which he is acquitted, the reason for the same and it must be specified that a person is now a free man.

2. If the judgment is passed under the IPC and the judge who is delivering the judgement is not certain about under which Section the offence is committed or under which part of the Section, the judge should mention the same in the judgement and should pass orders in both the alternate situations.

3. The judgement shall give a proper reason for the conviction if it is a sentence for life imprisonment and in case of death penalty the special reason has to be given.

SECTION 355 – Metropolitan Magistrate’s Judgment

Under Section 355 of the CrCP, it is mentioned that the judge instead of giving the judgement in an above-mentioned way, can deliver it in an abridged version that would contain-

The serial number of the case,
Date of the commission of the offence,
Name of the complainant,
Name of the accused person, his parentage and residence,
Offence complained of or proved,
Plea of the accused and his examination,
Final order,
Date of the order,
In cases when the appeal lies from the final order either under S.373 or S.374(3) of this Code, a brief statement of reasons for the decision.

This section has its mention in the Allahabad High Court case of State v. Mahipal And Others, 25^th October, 2013.

SECTION 356 – Order for Notifying Address of a Previously Convicted Offender

This section tells us about the order regarding notification of the address of a previously convicted person.

In cases decided by the Court of Session or a Chief Judicial Magistrate, the Court or such Magistrate as the case may be shall forward a copy of its or his finding and sentence (if any) to the District Magistrate within whose local jurisdiction where the trial was held.

SECTION 357 – ORDER TO PAY COMPENSATION

Under Section 357 of the Code, when a Court imposes a sentence or fine or a sentence in which fine is also included then the Court while passing judgment may order the whole or any part of the fine recovered to be used:

In defraying the expenses incurred during the prosecution.
In the payment to any person as compensation for any loss or injury caused by the offence, when compensation is recoverable in the Civil Court.
When a person is convicted of any offence for causing the death of another person or have encouraged the commission of such an offence, have to pay compensation to the persons who are, under the Fatal Accidents Act, 1855 entitled to recover damages from the person sentenced for the loss resulting to them from such a death.
When a person is convicted of any offence including criminal misappropriation, theft, criminal breach of trust, cheating, dishonestly receiving or retaining, or willingly assisting in the disposal of any stolen property knowing that the property has been stolen then compensation has to be given to the bona fide purchaser of such property for the loss of the same if such property is restored to the person who is entitled to the possession of it.

If the fine is imposed in a case which is appealable, no such payment shall be made before the period allowed for presenting the appeal has lapsed, or if an appeal is presented then before the decision of the appeal is delivered.

Moreover, when a Court imposes a sentence, in which fine is not included, the Court while passing judgment may order the accused person to pay, in the form of compensation, the amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced. An order can also be made by an Appellate Court or by the High Court or Sessions Court while exercising its powers of revision.

It is important to note that at the time of awarding compensation in any civil suit relating to the same subject matter, the Court will take into consideration any sum paid or recovered as compensation under this Section.

Sub-sections: –

S.357A describes victim compensation scheme
S.357B deals with compensation to be in addition to fine under S.326A and S.376D of the Indian Penal Code
S.357C deals with treatment of victims

SECTION 358 – Compensation for Wrongful Arrest

Under Section 358, it is stated that in case a person compels the police to arrest another person, which the Magistrate thinks that there is no ground for such arrest, the Magistrate may order compensation not exceeding Rs 1000, to be paid by the person who causes such arrest. The fine is given as a way of compensation for the loss of time and expenses or other matters, as the judge may think fit. If more than one person is arrested on such a basis, then each of them should be awarded a compensation not exceeding Rs 100, as the Magistrate thinks fit. Such compensation shall be recovered as a fine and if the person does not pay the compensation then the Magistrate can sentence him to imprisonment not exceeding 30 days unless the compensation is sooner paid.

SECTION 359 – Order to Pay Costs in Case of Non-Cognizable Offence

In Section 359 of the Code, it is held that whenever the Court convicts the offender in a non-cognizable offence, then along with the sentence of the crime, it can also order the payment of expenses that are borne by the complainant, these expenses would include the fees of the witness, pleaders fees or any other which the Court deems fit. The payment could be made in full or in installments. In case of default of such payment, the Magistrate may order imprisonment not exceeding thirty days.

SECTION 360 – ORDER TO RELEASE ON PROBATION OF GOOD CONDUCT OR AFTER ADMONITION

Section 360 of the CrPC mentions a provision in which a person could be released on good conduct or after admonition. In this, if a person is not under the age of 21 years and is not convicted of an offence which is punishable with a fine or a term which is seven years or less. Also if a person is more than 21 years of age or a woman is convicted of an offence which is not punishable with a death sentence or life imprisonment and no previous conviction is there against the person then if the Court thinks it is fit as per the age, character, antecedents of the offender and the circumstance under which the offence was committed, that it is expedient to release the person on good conduct and the Court instead of punishing him, may or may not order him to be released in the sureties. Such a person has to appear before the Court to receive the sentence of the punishment not exceeding 3 years and in the meantime peace and good behaviour, must be exercised.

If the first offender is convicted by the magistrate of the second class then the magistrate has to record its opinion to that effect and submit it to the first class magistrate. The first class magistrate will hear the case in the same manner as if it originally came to his Court and he may order further inquiries if he feels that it is necessary to do so. He may order to record evidence or do it by himself.

Suppose a person is convicted of theft, misappropriation, cheating, or any other offence under the IPC, and is punishable with not more than two years of imprisonment or fine. Then, in this case, the person is not previously convicted of any other offence, the Court may if it deems fit can release the person based on his age, antecedent, mental and physical condition, character, the trivial nature of the offence, or any circumstances which took place. The Court may release him after due admonition. An order under this Section could be given by the Appellate Court or High Court or Court of Session while exercising its power of revision.

The Court should ensure that the offender and his sureties must get a place of living and a regular occupation of observation as specified by the Court.

SECTION 361 – Special Reasons to be Recorded in Certain Cases

The Code through Section 361 makes the application of Section 360 necessary wherever possible and in cases in which there is an exception to state clear reasons. The judge must give specific reasons for awarding the punishment which is below the minimum prescribed under the relevant laws of the country. The act of recording the specific reason is an irregularity and can set aside the sentence passed on the ground of failure of justice. The Probation of Offenders Act, 1958 is very similar to Section 360 of the CrPC. It is more elaborate in the sense that it explicitly provides for conditions of release order, a supervision order, payment of compensation to the affected party, powers and predicaments of the probation officer, and other particulars that might fall in this field. Moreover, Section 360 would cease to have any force in the States or parts where the Probation of Offenders Act is in force.

Sub-section (b) of S.361 says that, a youth offender under the Children Act 1960 (S.60 of 1960), or any other law for the time being which is in force for the treatment, training and rehabilitation for young offenders, but has not done so, it shall also record in its judgement the reason for not having done so.

SECTION 362 – Court not to Alter Judgment

This section tells us that once a judgement is pronounced, no change shall be made by the court or the presiding officer on such judgement. Unless the appeal is filed at a higher court.

In Smt. Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC 736, the Supreme Court held that the prohibition in Section 362 of CrPC, against the Court altering or reviewing its judgment on this case, is subject to what is “otherwise provided by this Code or by any other law for the time being in force”. Those words, in turn, refer to those provisions only where the Court has been expressly authorized by the Code or other law to alter or review its judgment. The power inherited by the Court is not contemplated by the saving provision contained in Section 362 of the CrPC.

SECTION 363 – Copy of the Judgment to be Given to the Accused and Other Persons

Section 363 of the CrPC states that when the sentence of imprisonment is pronounced, the guilty must be immediate, given a copy of judgement-free of cost. If the accused applies, the copy of the judgment in his language (if possible) or in the language of the Court shall be translated and given to him in every instance where such a case is appealable. This copy should be given to him free of cost. However, if the High Court confirms the death sentence of the accused, then he should be given a copy of the judgement even if he has not applied for the same. Except for these cases, the accused will get a copy of the judgement or order, once he makes the payment of the specified charges, or in special cases, as the Court shall deem fit, will be given to him free of cost. Furthermore, if the appeal to the judgement lies in the higher Court, then the accused must be informed of the time within which he should appeal, and his appeal must be preferred. Moreover, other persons who are not affected by the judgment of the High Court shall get a copy of the same after payment of specified prices and following certain conditions as ascertained by the High Court in the rules made by it.

In the case of Shree Lal Sarof v. State of Bihar, the Court held that when a person is affected by a judgement or an order passed by a criminal court, then on the application made in this behalf under S. 363(5), and on the payment of the prescribed fees, he has to be provided a copy of the order, disposition or other parts of the record irrespective of whether he has appeared in the court or not.

SECTION 364 – Judgment when to be Translated

This section provides that every judgement pronounced by a court must be recorded. In an instance where such judgement is not in the language of the court and the accused requires so, then the judgement should be translated into the language of the court and stored accordingly.

SECTION 365 – Session Court to Send a Copy of Finding and Sentence to the District Magistrate

This section tells us that in case a judgement is pronounced by a Court of Session or by a Chief Judicial Magistrate, then a copy of such a judgement should be sent to the office of the District Magistrate, under whose local jurisdiction the trial is held.

CONCLUSION

Judgement forms an important part of any legal proceedings as it mentions the decisions that are taken after hearing the argument from both sides and the reason for the same. Chapter XXVII of the Criminal Procedure Code, 1973, lays down a detailed description of the judgement in criminal matters. Provisions relating to the language, contents, etc are provided. Separate provisions are present for delivering judgement in cases relating to the death sentence, fine or imprisonment.

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This case is critically analyzed by Akshat Mehta, a student of Institute of Law, Nirma University, Ahmedabad. In this case, he tried to highlight where the exception of strict liability also fails and parties are liable so as in absolute liability.

INTRODUCTION

An exception of “Act of a Stranger” is available or not in the case of ‘Strict Liability’ of electricity board in an event of electrocution because of clandestine pilferage committed by a stranger.

Equivalent Citation

AIR 2002 SC 551

Bench

Justice K. Thomas and Justice S. Phukan

Decided On

11 January 2002

Court

Supreme Court of India

Relevant Laws

Strict Liability Rule and the exception of ‘act of a stranger’ and Section 19 of the Electricity Act, 1910

Fact of the Case

A workman by the name Joginder Singh, aged 37 was riding to his home in the night from factory through bicycle on August 23, 1997. There was heavy rain in that area at that time due to which most parts of the road were covered with water. There was a live electric wire lying on the road, which was used by Hari Gaikwad (3^rd Respondent), who was siphoning the energy for his private house secretly without the notice of the electricity board. The cyclist didn’t notice the live wire lying on the road which was partially inundated with water and as his cycle got over to the water he got twisted and snatched and instantaneously electrocuted. He died with few minutes of the deadly shock. His widow wife and minor son claimed for the sum of Rs. 6.39 Lakhs, but the trial court assessed the compensation amounted to Rs. 4.34 Lakhs to the claimants.

Issues Presented Before the Court

1) Whether the electricity board is strictly liable or is negligently liable under the Law of Torts?

2) If yes, can it take the exception of ‘Act of a stranger’ to abscond from the liability?

3) Whether the compensation awarded is in consonance with the damages suffered or not?

Ratio of the Court

The Honorable Court read this case with the 18th-century case of ‘Rylands v. Fletcher’ in which the Strict Liability rule was propounded by Lord Blackburn J., as per which “the person who, for his own purpose, brings on his lands and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril, and if he does so he is prima facie answerable for all the damage which is the natural consequence of its escape.”

Same happened in this case and J. Thomas observed that even after taking all necessary precautionary measures if any hazardous thing is capable to take human life than the person is strictly liable. He also distinguished Strict Liability from the Negligence in a manner that as per the concept of ‘Negligence’ in tort law, a person could avoid the foreseeable harm by taking the precautionary or preventive measures but in the case of ‘Strict Liability’, a person is strictly liable even if he had already taken preventive measures to avoid foreseeable harm. There are seven exceptions available to the rule of ‘Strict liability’ and one of which is ‘Act of a stranger/Act of a third party’.

The Court also held that in the present case the board also seemed taking the exception of ‘Act of a stranger’ in order to abscond from its liability but this exception doesn’t apply here because of two reasons:

1) In the present scenario the exception doesn’t hold water because actions of the third party could be possibly anticipated from the defendants and also in either way consequences could also have been prevented by the board if reasonable care could be taken with due diligence.

2) As long as the power transmitted in the wires is potentially dangerous and also could take the life of any person it adds on to the duty of the board and management to take all safety measures to prevent any escape from such potentially harmful transmission wires.

The Court also used similar reasoning laid down in cases such as Charan Lal Sahu v. Union of India, Gujarat State Rod Transport Corporation v. Ramanbhai Prabhatbhain, Kaushnuma Begum v. New India Assurance Co. Ltd. and M.C Mehta v. Union of India (1987) while granting the decision.

Decision of the Court

The Court in this directed the electricity board to pay the compensation to the widowed wife and minor son of the deceased person and also held that the electricity board cannot escape from the liability and it doesn’t create any difference that whether the 3^rd respondent could interfered or not, the potentially dangerous power in the electricity cables makes the board Strictly liable and no defense prevails.

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This case analysis is written by Siddhi P. Nagwekar, a student of Karnataka State Law University’s Law School

Case Number

Civil Appeal No. 3302 of 2005

Equivalent Citation

1994 1 CPJ 160; 1995 2 CPJ 275; 1994 1 SCC 243

Bench

Justices R.V. Raveendran and Lokeshwar Singh Panta

Decided on

10.07.2008

Relevant Act/Section

Consumer Protection Act, 1986; Section 2(r)(ii) and Section 2(1)(c) of the Workmen’s Compensation Act

Brief Facts

It relates to the question whether a land owner, who enters into an agreement with a builder, for construction of an Apartment Building and for sharing of the constructed area, is a `consumer’ entitled to maintain a complaint against the builder as a service-provider under the Consumer Protection Act, 1986. The appellant is the owner of the premises no. L-3, Kailash Colony, New Delhi. He entered into a `collaboration agreement’ with the respondent. The appellant alleges that the respondent secured sanction of the plan for construction from the Municipal Corporation of Delhi [for short ‘MCD’) but made several unauthorized deviations during construction, resulting in several deviation notices from MCD. In fact, MCD passed an order dated 16.1.1991 to seal the premises, but subsequently, the premises were de-sealed to enable the builder to rectify the deviations. The delivery of the ground floor was made by the builder to the appellant’s son during the appellant’s absence from India. On his return, the appellant sent a letter dated 29.10.1992, pointing out several shortcomings in the construction and the violations of sanctioned plan, and called upon the builder to rectify the deviations and defects. The builder did not comply. The appellant, therefore, filed a complaint in District Consumer Disputes Redressal Forum-IX, Delhi which was dismissed. The appellant filed an appeal against the order of the District Forum and the said appeal was dismissed by the State Commission, Delhi. This appeal was also dismissed for devoid of merit. The appellant filed a revision petition before the National Commission. The National Commission dismissed the revision petition. The said order is challenged in this appeal by special leave.

Issues Before the Court

Whether the owner can maintain a complaint under the Consumer Protection Act?

Whether in such circumstances, the owner can claim that he is a consumer and the builder is the service provider?

Ratio of the Case

The basic underlying purpose of the agreement is the construction of a house or an apartment (ground floor) in accordance with the specifications, by the builder for the owner, the consideration for such construction being the transfer of undivided share in land to the builder and grant of permission to the builder to construct two floors. Such agreement whether called as a ‘collaboration agreement’ or a ‘joint-venture agreement’, is not however a ‘joint-venture’. There is a contract for construction of an apartment or house for the appellant, in accordance with the specifications and in terms of the contract. There is a consideration for such construction, flowing from the landowner to the builder (in the form sale of an undivided share in the land and permission to construct and own the upper floors).To adjust the value of the extent of land to be transferred, there is also payment of cash consideration by the builder. But the important aspect is the availing of services of the builder by the land-owner for house construction (construction of owner’s share of the building) for a consideration. To that extent, the land owner is a consumer, the builder is a service provider and if there is deficiency in service in regard to construction, the dispute raised by the land owner will be a consumer dispute. We may mention that it makes no difference for this purpose whether the collaboration agreement is for construction and delivery of one apartment or one floor to the owner or whether it is for construction and delivery of multiple apartments or more than one floor to the owner. The principle would be the same and the contract will be considered as one for house construction for consideration.

Decision of the Court

The Supreme Court passed the following orders:

The orders of the National Commission, State Commission and District Forum are set aside.
The appellant’s complaint is held to be maintainable.
The District Forum is directed to consider the matter on merits and dispose of the matter in accordance with law, within six months from the date of receipt of this order.
The respondents shall pay costs of Rs.25,000/- to the appellant.

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This Case Analysis is written by Siddhi P. Nagwekar, a student of Karnataka State Law University’s Law School.

Case Number

I.A.- 10367/2007

Equivalent Citation

(2009) 109 DRJ 357

Bench

Justice Shiv Narayan Dhingra

Decided on

02.03.2009

Relevant Act/Section

Sections 406, 498A and 34 of the Indian Penal Code (IPC)

Brief Facts

Prof. Imtiaz Ahmad is a distinguished professor of Sociology at Jawahar Nehru University. A woman named Durdanda Zameer filed a complaint before the Crime Against Women (CAW) Cell allegedly making defamatory statements against him. The excerpts of the complaint, where his name was recorded as ‘Imtiaz Ahmad Ansari’ according to the plaintiff amounted to his defamation and entitled him to damages. He contends that he has been portrayed as a perpetrator of dowry demand and in his name, Ansari has been deliberately added since ‘Ansaris’ belong to lower community viz ‘Julaha’. He claimed that he was a renowned social psychologist and because of the assertions made by the defendant in her complaint to CAW Cell and other authorities, his reputation received a severe dent in academic circles and among his colleagues and also towards the mammoth work that he has done for the betterment of the society in general. The plaintiff claimed damages to the tune of Rs.20 lac from the defendant.

Issues before the Court

Whether the excerpts of the complaint made by Durdanda Zameer to the CAW caused defamation of the plaintiff?

Ratio of the Case

Under the law of defamation, the test of defamatory nature of a statement is its tendency to incite an adverse opinion or feeling of other persons towards the Plaintiff. A statement is to be judged by the standard of the ordinary, right-thinking members of the society at the relevant time. The words must have resulted in the Plaintiff to be shunned or evaded or regarded with the feeling of hatred, contempt, ridicule, fear, dislike or disesteem or to convey an imputation to him or disparaging him or his office, profession, calling, trade or business. The defamation is a wrong done by a person to another’s reputation.

Court’s Observations

Justice S.N. Dhingra observed that the plaintiff’s submissions that adding of caste ‘Ansari’ against his name was per se defamatory is very strange. If a professor of sociology has a notion and thought that ‘Ansari’ was a caste of lower-class since it represents ‘Julaha’ community, I can only take pity upon such ‘highly respected’ and ‘qualified professors’

If it is stated that a Hungama was created by many from in-laws of the defendant, including the plaintiff, that does not mean that the defendant made defamatory imputations against the plaintiff or the defendant made a statement to cause an adverse opinion or hatred feelings of other persons towards the plaintiff. As has already been observed above the statement is to be judged by the standard of an ordinary person. The alleged words must have resulted in the plaintiff to be shunned or evaded or inculcated a feeling of hatred and condemn. The plaintiff continues to be the professor in JNU and he continues to a known voice at different TV Channels. It is not the case that people have abandoned him or boycotted him because of this imputation. The plaintiff has not named a single person who had changed his opinion after filing of the complaint by the defendant.

Moreover, the defendant had a right to make complaints of her grievances to the authorities. Whenever a person makes a complaint against someone to the lawful authorities and in that complaint, he makes imputations against the person complained of, it cannot be considered that the person has publicized or publicly made defamatory averments against a person.

Judgment of the Court

In view of the facts presented, and the applicable law considered, the Court did not find any cause of action arising against the plaintiff for defamation. The suit of the Plaintiff was thus dismissed.

This case is critically analyzed by Akshat Mehta, a student of Institute of Law, Nirma University, Ahmedabad. In this case, he analyzed how the need for ‘Absolute Liability’ emerged despite having the 18^th century doctrine of ‘Strict Liability’.

INTRODUCTION

This case serves the basic foundation for the emergence of ‘Absolute Liability Rule’ in India after the Bhopal Gas tragedy and oleum Gas leak incident.

EQUIVALENT CITATION

1987 AIR 1086, 1987 SCR (1) 819

BENCH

Justice P.N. Bhagwati

DECIDED ON

20 December 1986

COURT

Supreme Court of India

RELEVANT LAWS

Rule of Absolute liability under the law of Torts, Article 21 and 32 of the Constitution of India

FACTS

On December 2, 1984, the deadly ‘Methyl Isocyanate gas’ leaked from the plant of UCC, Bhopal which killed almost 4,000 people immediately within 2 hours of the leak of the gas. Most people died were the people of the slum area residing near the geography of the plant. Till the morning the death toll reached up to 8,000 because lethal gas spread throughout the city. Around 20,000 people died in the next 20 days and more than 80,000 people suffered permanent disability. The most horrible part of the incident was that UCC was found shifting the whole liability to Union Carbide India Limited. The case was initiated by the name union Carbaid Corporation V. Union of India (1984) in the Apex Court.

While the matter was pending before the Supreme Court similar incident occurred after the one year in the factory of Shriram Fertilizers & Chemicals and Other v. Union of India on 4^th and 6^th December 1985. A leakage of hazardous Oleum Gas occurred in the factory plant of Shriram Food and Fertilizers Industries a subsidiary of Delhi Cloth Mills Ltd. in which one advocate along with several other people was dead and some others are badly injured. Several applications were filed by Delhi Legal Aid and Advice board and Delhi Bar Association regarding the allocation of compensation to the deceased advocate and others who were badly injured and died. Also several times the question was raised in the parliament in 1985 proceedings regarding the use of hazardous substances which had taken away the lives of numerous people in both the incidents. The then leading legal practitioner M.C. Mehta filed a PIL under Article 32 of the Constitution for the violation of rights under Article 21 of the Constitution.

ISSUES BEFORE THE COURT

Following issues were raised before the Apex Court:

1. Whether the Plant could be allowed to continue or not, if yes what are the preventive measures taken by the government to ensure that the operation of the plant doesn’t cause any risk or hazard to the community?

2. Whether Shriram Food and Fertilizers were engaged in production and making of hazardous substances and chemicals at the cost of human life and environment and could be made ‘Absolutely liable’ for their actions and the rule of ‘Rylands v. Fletcher’ could be applied in this case?

3. Whether Shriram food and fertilizers could be considered under the ambit of Article 12 as a state?

4. Whether the factory management is liable to compensate the victims and application for compensation under Article 21 could be sustained?

RATIO OF THE CASE

The court was in the opinion that this case should be read in reference to ‘Bandhua Mukti Morcha v. Union of India’s case and held that powers in Article 32 of the Constitution are not only to be exercised when Fundamental Rights are threatened to be violated but also could be used for remedial purposes when the Rights are violated. The court also observed that the Court has the power to grant remedial relief in the cases where ‘paramount collective interest’ is located or the public at a large has an impact.

In regards to the ‘Strict Liability’ principle emerged in the case of Rylands v. Fletcher (1868), the court came out of a critical difference between the concept of ‘Strict Liability and Absolute Liability’, which is:

Strict Liability rule says:

⮚ There must be a dangerous thing which has been brought on to the land of the defendants.

⮚ Such a dangerous thing must be used for a non-natural purpose.

⮚ Such dangerous thing must escape away from the control of the defendants.

There are five exceptions to strict liability through which it could be avoided:

⮚ If the plaintiff was himself at fault.

⮚ Plaintiff’s consent to suffer harm.

⮚ Act of a stranger (3^rd party).

⮚ Act of God, and

⮚ Statutory Authority.

But, the Court had noticed that ‘Strict Liability’ the rule was an 18th-century old law when science and technology have not developed to an extent as it is today. There is a serious need to develop new laws that could cater to the needs of current situation of industrialized society. Thus, the rule of ‘Absolute Liability’ emerged, which says:

⮚ There must be a dangerous thing that has been brought on to the land of the defendants.

⮚ Such a dangerous thing must be used for a non-natural purpose.

⮚ Such dangerous thing must escape away from the control of the defendants.

⮚ Such dangerous thing must be brought in to the land of defendants for the Profit Motive.

The Court noticed that these four conditions are needed to be satisfied in order to establish ‘Absolute Liability’. There is no exception to the rule of Absolute Liability as the term itself suggests that it makes a person absolutely liable for his wrong deeds or negligence.

On the issue of compensation, the Court held that compensation must be awarded after taking into account the magnitude and capacity of the industry so that deterrent effect could be positively created. The larger the scale of operation of the industry the more the amount is it liable to pay for compensation.

DECISION OF THE COURT

1. The Shriram Food and Fertilizers are supposed to deposit Rs. 20 Lakhs in the Court for payment of Compensation to deceased and injured. Also, it was directed to keep Rs. 15 Lakhs as a security deposit in the bank that could be encashed by the registrar of the Supreme Court in the event of any sought of leakage.

2. Management and Directors of the company are supposed to give a written undertaking guaranteeing payment of compensation to the victims in case of any future tragedy.

3. The Shriram Food and Fertilizers should comply with the recommendations of the expert committee and Rs. 30000 must be paid by them for the traveling and convenience expenses of the committee members.

4. A green belt should be created within the width of 1.5 K.M. of the industrial plant set up.

5. The Court directed Shriram Food and Fertilizers to pay Rs. 10000 to M.C. Mehta for costs occurred by him and appreciated his efforts.

6. The Court also directed the central government to setup an ‘Environmental Court’ consisting a judge and other experts and in consonance with this Government passed the National Environment Tribunal Act, 1995 to deal with the cases of Environmental Pollution.

This article is written by Shambhavi Shree, a student of KIIT School of Law, Bhubaneswar (4th year).

INTRODUCTION

Indian Parliament introduced a completely new act by replacing the Consumer Protection Act, 1986. It came into effect on 20th July 2020. The main objective of this act is to provide convenience and to look after the unfair trade practices that can cause harm or injury to the customers. This act consists of more stringent punishment if there is a violation of consumers right by the person who is providing services. If there is any defect or act of omission in terms of warranty or terms and conditions or failed to exercise reasonable care or due diligence or modification of the product then there is a liability of:

Product manufacturer under section 84 of the Consumer Protection Act, 2019.
Product service provider under section 85 of the Consumer Protection Act, 2019.
Product seller under section 86 of the Consumer Protection Act, 2019.

Who is a Consumer?

The word consumer is defined under section 2(7) of the Consumer Protection Act, 2019. A consumer is a person who buys goods for their consumption. The goods are stored for their personal use. World Consumer Rights Day is celebrated on 15th March every year. It is celebrated to create awareness and to protect the rights of the customers at large. The consumer has the following rights under section 2(9) of the Consumer Protection Act, 2019:

Right to safety.
The consumer has the right to receive information about the products and services.
Right to be heard if they are deprived of their rights and file a complaint in Consumer Redressal Forums.
The right to access a variety of goods at reasonable prices.
The right to get compensation for a wrongful act.
The right to full information about the quality, quantity, nature, price, and description of the goods purchased.

Important Terminologies

Goods: Any movable property defined under section 2(21) of Consumer Protection Act, 2019, and section 3(1)(j) of the Food Safety and Standard Act, 2006 which is for the consumption of human beings.
Services: Any description which is made available to the consumers such as transport, entertainment, construction, banking, and many more which is defined under section 2(42) of the Consumer Protection Act, 2019. In the new act, telecom has also been added to the definition of services.
Product: Defined under section 2(33) of the Consumer Protection Act, 2019 which states any article, goods, substance, or raw material that is manufactured for sale.
Person: It has been defined under section 2(31) of the Consumer Protection Act, 2019. It is an individual, artificial person, firm, Hindu Undivided Family, cooperative society, or association of persons that is registered under the Societies Registration Act, 1860.
Unfair Contract: It is a contract between a manufacturer or trader or service provider that obligates the right of consumers defined under section 2(46) of the Consumer Protection Act, 2019.
Unfair Trade Practice: According to section 2(47) of the Consumer Protection Act, 2019 any trade practice which is for the promotion of the sale, supply of goods or services, adopts any unfair means including a misleading or false statement about the product, promise to repair or replacement, warranty or guarantee of performance is known as unfair trade practice.

Difference between Consumer Protection Act 1986 and Consumer Protection Act 2019

In Consumer Protection Act, 1986 there were no provisions for E-commerce but it has been defined under the new act. E-commerce or electronic commerce refers to the buying and selling of goods and services through electronic media. The customers find it more convenient to avail of the services through an online mode without stepping out of their homes.
Now a complainant can file a complaint in their nearest Consumer Redressal Forum through an online mode. It is a time-consuming process.
Section 10 of the Consumer Protection Act, 2019 includes the establishment of a regulator known as the Central Consumer Protection Authority (CCPA). It includes: (i) If there is a violation of consumer rights in terms of buying of the products and services from the manufacturer, dealer, or seller then it is the responsibility of CCPA and a director-general to investigate the matter. (ii) CCPA has the authority to take action against any individual involved in the false spreading of the advertisement which may cause harm to the customers. The accused person shall be liable with a penalty of ‎₹10 lakhs and which may extend to ‎₹50 lakhs. (iii) If the manufacturer found in misleading statements or advertisements shall be liable with imprisonment for up to 2 years.
District Commission is supposed to take action if there is a complaint and the cost paid by the complainant to the seller does not exceed ₹1 crore. In the previous act, the limit of District Forum was up to ₹20 lakhs.
State Commission is supposed to take action against the consumer complaints if the cost paid to the seller does not exceeds ₹10 crores. In the previous act, the limit was up to ₹ 1crore.
National Commission is authorized to take action against the consumer complaints if the cost paid to the seller exceeds ₹10 crores. In the previous act, the limitation was up to ₹1 crore.
Unfair trade practices are considered to be unlawful as it is a deceptive and fraudulent act practiced to cause harm or injury to consumers. Earlier there were six provisions for unfair trade practices but three more have been added in the new act. If the goods bought don’t have a bill or cash memo or the service provider refused to take back the defective product or refused to refund the amount paid or refused to refund goods and services within 30 days or disclosure of customer’s information leads to unfair trade practices.
Courts can resolve the matter by settlement through mediation. No such legal provisions for mediation existed earlier.
Section 34 of the Consumer Protection Act, 2019 states that compensation shall be awarded in case of any inconvenience caused by the product manufacturer, service provider, and the seller.
If a person found liable not agreeing with the orders of the commissions then he shall be liable with imprisonment up to 3 years or with a fine, not less than ₹25,000 which may exceed ₹1 lakh or with both. Earlier there was punishment ranging between 1 month and 3 years or with a fine ₹2,000 to ₹10,000 or with both.
In case of death of the customer caused due to products containing adulterant or false products then the accused person shall be liable with imprisonment from 7 years to life or a fine up to ₹10,00,000 or both.

Case Analysis

Dharangadhara Chemical Works Limited V. State of Saurashtra 1957 AIR 264, 1957 SCR 152

In this case, a thin line of difference was drawn between a contract for services and a contract of service. In a contract for services, a master instructs how a work should be done in exchange for monetary consideration. In a contract of services, the master commands its agent in exchange for money.

R. D. Saxena V. Balram Prashad Sharma 22^nd August, 2000

The relative term misconduct means wrong conduct or improper conduct. It was further contended by the Supreme Court that the service provider is involved in wrongful conduct to gain an advantage arising out of it.

Indian Medical Association V. V.P. Shantha and Ors on 13th November, 1995

Issues

Whether a medical practitioner could be regarded as rendering service under section 2(1)(0) of the Consumer Protection Act, 1986?

Whether the service rendered at a hospital could be regarded as a service?

In this case, if a doctor is unable to provide appropriate service then the patient can claim compensation. Supreme Court stated that a patient is a customer as long as they are making payment for the services rendered. Service rendered by the medical practitioner by way of consultation, diagnosis, and treatment, both medical and surgical would fall under the ambit of service. But the service rendered free of cost not to be considered as service under this act.

CONCLUSION

The consumer is often deprived of their rights in modern days and ages. Justice must be provided to the customers facing problems regarding their regular needs and demands. However, the introduction of electronic commerce and addressing complaints through online technologies like video conferencing, online video application, face to face interaction, voice messages, sending images and videos online have helped a lot. Because of the amendment of the new act, there are fewer misunderstandings, miscommunications, and assumptions.

REFERENCE

http://angelalagu.blogspot.com/2016/04/contract-of-services-vs-contract-for.html#:~:text=The%20law%20makes%20a%20distinction,of%20an%20independent%20sub%2Dcontractor.
https://www.google.com/search?q=Protector+%26+Gamble+Home+Products+V+Raj+Dev+Bharadwaj+detrgent+case&sxsrf=ALeKk00VXRJTyIYoPGeAxzZeYFa4t1Mpig:1597082945347&source=lnms&tbm=isch&sa=X&ved=2ahUKEwi6j4nNnZHrAhUDOSsKHWLvAvgQ_AUoAnoECAwQBA&biw=1271&bih=568
https://indiankanoon.org/doc/66903437/
https://www.google.com/search?q=K.+Vishnu+v+National+Consumer+Disputes+Redressal+Commission+%26+Anr&oq=K.+Vishnu+v+National+Consumer+Disputes+Redressal+Commission+%26+Anr&aqs=chrome..69i57.260j0j7&sourceid=chrome&ie=UTF-8
https://www.lexology.com/library/detail.aspx?g=592f2bfc-30c8-4af6-88a8-61ad1f104492

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Report by- Riddhima Bhadauria

The Supreme Court has adjourned till 14 August, a hearing over a bunch of petitions challenging the conduct of final-year exams, after the University Grants Commission (UGC) submitted an affidavit mentioning that all universities in the country must conduct final-year exams by the end of September 2020.The bench comprising justices Ashok Bhushan, R Subhash Reddy and MR Shah asked if the Disaster Management Act overrides the UGC’s guidelines and sought a reply. The bench further posted the hearing for 14 August.

In the affidavit submitted on Thursday, 30 July, the UGC had justified its guidelines prescribing final-year exams on the grounds that students will be given an opportunity to appear for special exams if they are unable to write the ones scheduled in September.

The UGC also said that it was working in the best interests of students.

“UGC has issued such guidelines to protect the academic future of students across the country which will be irreparably damaged if final year or terminal semester examinations are not held, while also keeping in mind their health & safety.”

According to the UGC, universities were asked to inform the status of holding the exams and responses were received from 818 universities including 121 deemed, 291 private, 51 central and 355 state universities. Of the total 818 universities, 603 have either conducted or are planning to hold the examinations, while 209 have already conducted exams in either online or offline mode. As per the report, 394 universities are planning to hold exams (online/ offline/blended mode) in August and September.

Recently the Delhi government submitted before the supreme court that deputy chief minister/delhi higher and technical education minister of NCT of Delhi directed that all delhi state universities to cancel all written online and offline semester exams including final year exams.

Key points..

Advocate Alakh Alok Srivastava, lawyer appearing for 31 students, said that he would request the top court to grant relief to students considering their health, safety and job/admission opportunities. Anubha Srivastava Sahai, the chief of the India Wide Parents’ Association also hoped for a verdict in the students’ favour.
During the previous hearing on July 31, the top court had refused to pass any interim order. However, it had asked the Centre to clear the stand of Ministry of Home Affairs (MHA) on the issue.
SC Mehta had told the court that they are only concerned with final-year exams and out of over 800 universities in the country, 209 have completed the examinations. He said that around 390 universities are in the process of conducting the examinations.
On decisions of some states like Maharashtra and Delhi to cancel final-year exams, the commission had said that it directly affects the standards of higher education and will be an encroachment on the legislative field of coordinating and determining the standards of higher education that is exclusively reserved for Parliament under Schedule VII of the Constitution.
It said that the Universities/Institutions may conduct such special examinations as and when feasible so that the students concerned are not put to any inconvenience or disadvantage.

Decision till now..

The Supreme Court of India has adjourned the hearing on the UGC Case challenging the decision to conduct the final year examinations till August 14.