Tag: #Article32

INTRODUCTION

One of the most unprecedented crisis ever in modern human history unfettered its wings in the form of a virus transmission namely Covid-19. The pandemic shook all spheres of life ranging from regular personal issues to the most intriguing aspect of our life. The Legal field was no exception to this havoc and it too bore the brunt of the pandemic. It compelled the justice delivery system to turn its recourse from traditional instruments of justice delivery to modern ones. In order to cope with the complicated demand system and ensure speedy and accessible delivery of justice, the virtual courts evolved to the fullest. It would be necessary to observe that even though they were present before the pandemic, covid-19 caused their application. Even after the retrieval of the pandemic, the ever arching presence of technology-assisted tools such as video conferencing and virtual courts are like to stay long after given their immense benefits of time-saving, speedy trials, social distancing norms, and technical benefits. However, as we know everything comes at a cost, this becomes more relevant in this case where the queen card is technology.¹

TECHNOLOGICAL CONUNDRUM

Starting from the very conception, nearly all the aspects in this technology-driven process suffer from myriad glitches. In the present scenario of virtual proceedings, only lawyers and their respective clients can view the same. The general public is barred from participating in the process. This completely goes against the notion of open courts and access to justice because these ultimately erode the rule of law as the very credibility and transparency depend on the open and fair judicial trials. Moreover, poor audio-video quality, manipulation of testimonials and evidence, power backup and connectivity issues, irregular code of conduct by the stakeholders, difficulty posed in cross-examination of witnesses, and multiple other issues that have crept into the system have further accentuated the discrepancies and complications of the ongoing virtual process.

The words of Adv. Dushyant Dave who quoted, “Performance of virtual courts through the medium of video conferencing has been not only far from satisfactory, but utterly disappointing.” presents a stark contrast as to actual requirements of setting up the requisite infrastructure and the ground reality.

One of the pertinent questions that arise is how to retain the public trust and confidence in the ongoing convoluted circumstances when the very concept of open courts and access to justice have been endangered by the advent and ramifications of covid-19? One of the notable answers to this question could be the live streaming of cases in matters of constitutional and national public interest which had been laid down in the case of Swapnil Tripathi vs Supreme Court Of India². The case lays down the groundwork required for setting up virtual courts, thus, paving way for the establishment of online norms and infra for live streaming.

BRIEF FACTS OF THE CASE

In 2017, Swapnil Tripathi, a law student, filed a writ petition under Article 32 of the constitution and was joined by 3 others, seeking declaration for the live streaming of the cases of constitutional importance and affecting the public at large in a manner that is accessible for public viewing. It further sought guidelines for laying down criteria for determining the cases that qualify for live streaming and also chalking out the list of exceptional cases. In order to buttress his case, the petitioner relied on the case of Naresh Shridhar Mirjkar v. the State of Maharashtra³ wherein the court emphasized the efficacy of open trials for upholding the legitimacy, effectiveness of the courts, and enhancement of public confidence and support.

ISSUES RAISED

Whether there should be live dissemination of the cases with aid of ICT( information and communication technology) and, if they are to be introduced in India, then under what conditions?

DECISION

The decision was delivered by a 3 judge bench of the Supreme Court of India wherein Justice Khanwilkar delivered the majority judgment on behalf of himself and CJI Dipak Misra. Justice D.Y Chandrachud gave a different concurring judgment. The bench ruled that the cases of the constitutional and national importance of public matter should be live-streamed in a manner consistent with the guidelines as prescribed by the honorable Supreme Court of India.

HELD

The Judgement is held to be significant, for it opens the door that provides open access to justice, public information and ensures transparency of the judicial process. The judgment has opened the application of live stream even to the most bottom tiers of judicial institutions i.e. lower courts thereby enhancing the efficiency and effectiveness of the entire judicial ecosystem. The court held that the right to view the live broadcast of the above-mentioned cases flowed from the right to access to justice which is derived from Article 21 Right to life and liberty thereby underlining the concept of open courts. However, this right is not absolute and is subject to the provisions of model guidelines framed for this purpose. The SC shall hold the broadcast and archive rights exclusively. The court concluded that live streaming of cases would uphold the constitution values, infuse public confidence into the judicial machinery, and uphold the values of democracy and integrity. However, there is a compelling need to balance the administration of justice and the virtues of privacy and dignity of the stakeholders involved. The other benefits involve:

1. It would infuse radical immediacy of the court proceedings and espouse public awareness regarding matters of national importance.
2. It would reduce public reliance upon second-hand narratives and ensure the credibility of the system.
3. It would literally eliminate the space and the time constraints by removing physical barriers and decongesting the courtrooms, thereby, greatly aiding in keeping infections at bay.
4. It would drastically enhance the accountability and credibility of the judicial process, thus, promoting democracy.

CONCLUSION

While allowing such streaming, the majesty, integrity, and decorum of the courts as well as of the stakeholders involved, should not be compromised. Given in this unprecedented crisis of covid19 and the post covid world, live streams would be an imperative tool for the purpose of serving justice and fulfilling the notion of open courts thereby promoting technological prowess.

References:

1. https://lawtimesjournal.in/swapnil-tripathi-vs-supreme-court-of-india/
2. (2018) 10 SCC 628
3. 1966 3 S.C.R 744

This article is written by Riya Ganguly, 2nd year BBA LLB student at Bharati Vidyapeeth New Law College, Pune.

INTRODUCTION

Whatever is given under power is a writ. Orders, warrants, headings, and so forth given under power are instances of writs. Any individual whose central freedoms are disregarded can move the High Court (under article 226 of the Indian constitution) or the Supreme Court (under article 32) and the court can give bearing or orders or writs. Accordingly, the ability to give writs is principally an arrangement made to make accessible the Right to Constitutional Remedies to each resident. Notwithstanding the abovementioned, the Constitution likewise accommodates the Parliament to give on the Supreme Court ability to give writs, for purposes other than those referenced previously. Additionally, High Courts in India are likewise engaged to give writs for the requirement of any of the freedoms presented by Part III and for some other reason.
In India, both the Supreme Court and the High Court have been engaged with Writ Jurisdiction. Further, Parliament by law can stretch out the ability to give writs to some other courts (counting neighborhood courts) for nearby constraints of the locale of such courts.

WRIT OF QUO WARRANTO

The word Quo-Warranto in a real sense signifies “by what warrants?” or “what is your power”.The Writ of Quo-warranto in the writ is given guiding subordinate specialists to show under the thing authority they are holding the workplace. If an individual has usurped a public office, the Court might guide him not to do any exercises in the workplace or may report the workplace to be empty. Consequently, High Court might give a writ of quo-warranto assuming an individual holds an office past his retirement age.
The Writ of Quo-Warranto can’t be given to an individual working in a private field. This writ is given to an individual in an office, the lawfulness of which is being addressed.

CONDITIONS FOR ISSUE OF THE WRIT OF QUO-WARRANTO

1. The workplace should be public and it should be made by a sculpture or by the actual constitution.
2. The workplace should be a considerable one and not only the capacity or work of a worker at the will and during the joy of another.
3. There more likely than not be a negation of the constitution or a rule or legal instrument, in naming such individual to that office.

CASE LAWS FOR WRIT OF QUO WARRANTO

In the University of Mysore v. Govinda Rao, A.I.R. 1965 S.C. 491(1) case, the Court believed that the writ of quo warranto calls upon the holder of a public office to show to the court under the thing authority he is holding the workplace being referred to. On the off chance that he isn’t qualified for the workplace, the court might limit him from acting in the workplace and may likewise announce the workplace to be empty.

In Amarendra v. Nartendra, A.I.R. 1953 Cal.114. (2) case, the Court held that the writ lies in regard of a public office of a meaningful person and not a private office, for example, participation of a school overseeing panel.

In Mohambaram v. Jayavelu, A.I.R. 1970 Mad.63 (3); Durga Chand v. Organization, A.I.R 1971 Del.73. cases, the Court thought that an arrangement to the workplace of a public examiner can be subdued through quo warranto if in repudiation of significant legal guidelines as it is a considerable public office including obligations of public nature of essential interest to the public.

In K. Bheema Raju v. Govt, of A.P., A.I.R. 1981 (4) A.P. case, the Andhra Pradesh High Court suppressed the arrangement of an administration pleader as the technique endorsed in the significant standards, for this reason, had not been kept.

BUSINESS LAWS

Every one of the laws which relate to how what and why of how organizations are legitimately permitted to and expected to work are included by what is business law. Business law significance incorporates contract laws, assembling and deals laws, and recruiting practices and morals. In straightforward words, it alludes to and relates to the legitimate laws of business and trade in people in general just as the private area. It is otherwise called business law and corporate law, because of its tendency of directing these universes of business.

IMPORTANCE OF BUSINESS LAW

Business law is a significant part of law overall because, without the equivalent, the corporate area, producing area, and the retail area would be in oppression. The point of assembling business and law is to keep up with protected and utilitarian working spaces for all people associated with the business, regardless of whether they’re running it or working for individuals running it.

KINDS OF BUSINESS LAW

There are a few kinds of business laws that are perceived and pursued by nations all over the planet. A portion of these are:

• Contract Law – An agreement is any record that makes a kind of legitimate commitment between the gatherings that sign it. Contracts allude to those worker contracts, the offer of products contracts, rental contracts, and so on
• Employment Law – Employment law is the place where business and law should meet. These laws uphold the standards and guidelines that oversee representative boss connections. These cover when, how and for how much, and how long representatives should function.
• Labour Law – Labour law likewise shows the suitable connection between worker and manager, and pay grades and such. Notwithstanding, an extra component to work laws is the relationship of the association with the business and representative.
• Intellectual property Law – Intellectual property alludes to the immaterial results of the working of the human brain or mind, which are under the sole responsibility for a single substance, as an individual or organization. The approval of this possession is given by intellectual property law, which consolidates brand names, licenses, proprietary advantages, and copyrights.
• Securities Law – Securities allude to resources like offers in the financial exchange and different wellsprings of capital development and gathering. Securities law precludes businesspersons from leading false exercises occurring in the protections market. This is the business law segment that punishes protections extortion, for example, insider exchanging. It is, accordingly, additionally called Capital Markets Law.
• Tax Law – As far as business law, tax assessment alludes to charges charged upon organizations in the business area. It is the commitment of all organizations (aside from a couple of expense excluded humble organizations) to pay their duties on schedule, inability to finish which will be an infringement of corporate duty laws.

BUSINESS LAWS IN INDIA

In the Indian setting, there are a few business law areas vital to the country’s business area. A portion of these are:

• Complete acceptance of the contract by both parties.
• Lawful consideration from both parties.
• Competent to contract:
• Neither party should be a minor.
• No party should be of unwell mind.
• Free consent: neither party should have been pressurized into signing.
• Agency: when one party engrosses another party to perform in place of it.
• Final enforcement of contracts

Sales of Goods Act 1930 –
The exchange of responsibility for substantial, enduring ware between a purchaser and a dealer for a concluded measure of cash warrants an offer of products contract, whose particulars are described by the Sale of Goods Act 1930.

Indian Partnership Act 1932 –
An association in business alludes to when at least two business elements meet up to make another endeavor together. The speculation and benefits are parted equally between the elaborate gatherings. The Indian Partnership Act gives the laws under which associations in India can work.

Limited Liability Partnership Act 2008 –
This Act is separated from the IAP of 1932. A Limited Liability Partnership is a different legitimate element, which proceeds with its business with no guarantees, regardless of whether an organization breaks down, just experiencing the responsibility as referenced in the agreement.

Companies Act 2013 –
This is a definitive business law, which administers and gives the principles relating to every part of creation just as the disintegration of organizations set up in India.

This article is written by Sara Agrawal student at Sinhgad Law College, Pune.

Case Number

Civil Miscellaneous Petition No. 4939 of 1983, in Writ Petition No. 4676 of 1978

Equivalent Citations

1981 AIR 2198, 1982 SCR (1)1077, 1982 SCC (1) 71, 1981 SCALE (3) 1707

Bench

V.D. Tulzapurkar, D.A. Desai, A.P. Sen

Date of Judgment

3 November, 1981

Relevant Act/ Sections

The Wakf Act, 1995

Article 32 of the Constitution of India, 1949

Section 144 of the Code of Criminal Procedure, 1973

Section 5 of the Code of Criminal Procedure, 1973

Facts of the Case:

In Mohalla Doshipura of Varanasi City, there are two sects of Mohammedan-the Shias and the Sunnis. Both the sects revere the martyrdom of Hazrat Imam Hasan and Hazrat Imam Hussain, grand-sons of Prophet Mohammed, during the Moharram but in a different manner. The case of the petitioners and through them of the Shias of Mohalla Doshipura is that the members of their sect numbering about 4000 constitute a religious denomination having a common faith and they observe Moharram for two months and eight days in a year in memory of Hazrat Imam Hussain who along with his 72 followers attained martyrdom at Karbala in Iraq. The said religious belief is practiced by the men-folk and the women-folk of the Shia community by holding Majlises (religious discourses), Recitations, Nowhas, Marcia, doing Matam (wailing), and taking out processions with Tabut Tazia, Alama, Zuljinha, etc. For performing these religious rites, practices, and observances the Shia community has been customarily using from time immemorial the nine plots in Mohalla Doshipura and the structures on some of them. 

Tazia at Doshipura is a unique Tazia in the whole country, being made of fine wood carvings, about 15 ft. in height, having five floors, and decorated with gold and silver and would be of the value of not less than Rs. 3 lakhs. According to the petitioners, the entire period of Moharram is a period of mourning for the Shias whose staunch belief is that the whole purpose of their life is to carry out these religious practices and functions during the Moharram and that in case they do not perform all these rites, practices, observances and functions, including those relating to the Tazia, they will never be delivered and till these are performed the whole community will be in mourning and in none of their families any marriage or other happy function can take place. The aforesaid religious faith and the performance of the rites, practices, observances, and functions detailed above constitute their fundamental rights guaranteed to them under Arts. 25 and 26 of the Constitution and the members of the Shia community of Mohalla Doshipura have a customary right to perform these on the said nine plots and in or about the structures standing thereon from time immemorial.

From the year 1960 onwards the Sunnis, who were in majority and were able to muster the support of local politicians and the police, started creating trouble and interference by indulging in violence with a result that the Executive Authorities of Varanasi acting under sec. 144 Cr. P.C. but in abuse of the power thereunder started placing undue restrictions on the members of the Shia community in the performance of their religious functions and ceremonies. Thus, during the period 1960-66 the Executive power under sec. 144 Cr. P.C. came to be used each year to curtail the rights of the Shias to perform their religious practices and functions at the Baradari, other structures, and the appurtenant plots on the occasion of the Barawafat; sometimes restraints were also placed on the Sunnis. During the years 1967 to 1969 similar orders depriving the Shias of their legitimate rights on the occasion of Moharram, Chehulam, Pacha, and Barawafats under section 144 were issued by the district authorities. In subsequent years also similar orders were passed sometimes placing restrictions on one community and sometimes on the other, sometimes permitting certain observances on terms and conditions during the stated hours. More often than not under the pretext of imminent danger to peace and tranquillity both the communities were completely prohibited from carrying out their religious functions and ceremonies under such orders.

Procedural History

In the year 1973 on the occasion of Barawafat the City Magistrate, Varanasi by his order dated 12th April 1973 prohibited the Shias from performing Barawafat on the Baradari and its adjoining plots, and Sunnis were illegally permitted to observe Barawafat on Plot No. 602/1133 by reciting Qurankhani, Milad and Fathiha on 16th April 1963 from 9 A.M. to 12 Noon Gulam Abbas and other Shia Muslims filed a Writ Petition No. 2397 of 1973 in the Allahabad High Court for quashing the order of the City Magistrate and for prohibiting the City Magistrate and local authorities from passing or promulgating any order depriving the Shia of peaceful use and enjoyment of the Baradari and the adjoining plots appurtenant to it and also prohibiting them from permitting the Sunnis to make use of the Baradari and its adjoining plots. This Writ Petition and the connected criminal cases (being Criminal Revision and a Criminal Reference against similar earlier orders u./sec. 144 Cr.P.C.) were heard and disposed of by the High Court by a common judgment delivered on August 8, 1975. 

Notwithstanding the fact that the various impugned orders had exhausted themselves by efflux of time, the High Court felt that where a situation arose year after year making it necessary to take action u./sec. 144 Cr.P.C. it would be a proper exercise of its discretion to interfere with the impugned order if found to be illegal or improper, so that the Magistrate may not be encouraged to use his powers in the same manner again when the similar situation arose and that if a repetition of successive orders under sec. 144 resulted in a permanent interference with private legal rights it had to be deprecated and the High Court went on to give guide-lines to the Magistrates in the exercise of their discretionary power under sec. 144. 

On merits the High Court recorded its findings on the rights of the Shias in their favour in view of Civil Court’s decision in earlier litigation and quashed the City Magistrate’s order dated 12-4-1973 allowing the Sunnis and restraining the Shias from holding various religious functions on the occasion of Barawafat on the Baradari and the adjoining plots in question in Mohalla Doshipura and also passed appropriate orders in the connected criminal cases. 

Against this common judgment rendered by the High Court on August 8, 1975, Civil Appeal No. 941 of 1976 and Crl. As. Nos. 432 to 436 of 1976 were preferred by Mohammad Ibrahim, a Sunni Muslim, all of which were disposed of by this Court by a Common judgment dated 6-12-1976 and this Court held that the High Court should not have pronounced any view on the impugned orders under sec.144 when those orders had ceased to be operative and that the High Court should not have given findings on rights, title and property depending on disputed questions of facts in a writ petition the judgment and findings of the High Court were set aside and parties were relegated to have their rights agitated or settled in a civil suit. 

Feeling aggrieved by the said judgment, Gulam Abbas and others filed a Review Petition No. 36 of 1977 in Civil Appeal No.941 of 1976 which was dismissed by this Court on 16th December 1977.

Issues before the Court:

1. Whether an Order made under Section 144 Criminal Procedure Code is judicial or quasi-judicial order or whether it is passed in exercise of executive power in performance of executive function amenable to writ jurisdiction under Article 32 of the Constitution
2. Whether the petitioners could be said to have made out any ground for challenging the impugned order passed by the City Magistrate, Varanasi on 24th November 1979 prohibiting both Shia and Sunni communities from holding their Majlises and imposing other restrictions on the occasion of the celebration of Moharram festival at the Baradari in Mohalla Doshipura.
3. Whether the exercise of the power under the said provision has invariably been perverse and in utter disregard of the lawful exercise of the petitioners’ legal rights to perform their religious ceremonies and functions on the plots and structures in question
4. Whether the petitioners have succeeded in proving their subsisting entitlement to the customary rights claimed by them.

Ratio of the Case

• The question of whether an order under Section144 Criminal Procedure Code is a judicial order or an order in exercise of the executive power in performance of an executive function will have to be decided in the instant case by reference to the new Criminal Procedure Code, 1973 and not by reference to the old Criminal Procedure Code, 1898.
• The position under the 1898 Code, wherein separation between the judicial functions and executive or administrative functions of Magistrates did not obtain, was quite different and the power to act in urgent cases of nuisance and apprehended danger to public tranquillity under Section144 of the Code had been conferred on “District Magistrates, Chief Presidency Magistrates, Sub-Divisional Magistrates, or other Magistrates specially empowered by the State Government”
• The position under the new Criminal Procedure Code 1973 is entirely different whereunder the scheme of separation of judicial functions from executive functions of the Magistrates, as recommended by the Law Commission has been implemented to a great extent.
• If certain sections of the present Code are compared with the equivalent sections in the Old Code it will appear clear that a separation between judicial functions and executive or administrative functions has been achieved by assigning substantially the former to the Judicial Magistrates and the latter to the Executive Magistrates.
• The order under sec. 144 Cr.P.C. 1973 is amenable to writ jurisdiction under Article 32, the same being in the exercise of executive power in the performance of the executive function.
• The challenge to this order was incorporated in the writ petition by way of an amendment that had been allowed by the Court. 
• Since however, that impugned order has by now exhausted itself by efflux of time it would not be proper for us to go into either the grounds of challenge urged by the petitioners or the materials justifying the same put forward by the respondents for determining its legality or validity.
• Without setting out verbatim the provisions of sec. 144 of the 1973 Code, we might briefly indicate the nature of power thereunder and what it authorizes the executive magistracy to do, and in what circumstances.
• In urgent cases of nuisance or apprehended danger, where immediate prevention or speedy remedy is desirable, a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf may, by a written order stating the material facts of the case, direct a particular individual, or persons residing in a particular place or area, or the public generally when frequenting or visiting a particular place or area, 
  • (i) to abstain from a certain act or 
  • (ii) to take certain order with respect to certain property in his possession or under his management, if he considers that such direction is likely to prevent or tends to prevent obstruction, annoyance or injury to any other person lawfully employed, or danger to human life, health or safety, or a disturbance of public tranquillity, or a riot or an affray.
• As stated earlier sub-sec. (2) authorizes the issuance of such an order ex-parte in cases of emergency or in cases where circumstances do not admit of the serving in due time of a notice upon the person or persons against whom the order is directed but in such cases under sub-sec. (5) the executive magistrate, either on his own motion or on the application of the person aggrieved after giving him a hearing, may rescind or alter his original order. 
• Under sub-section (4) no order under this section shall remain in force for more than two months from the making thereof unless under the proviso thereto the State Government by Notification directs that such order shall remain in force for a further period not exceeding six months.
• The entire basis of action under Section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions, and annoyances with a view to secure the public weal by maintaining public peace and tranquillity.
• Preservation of the public peace and tranquillity is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to over-ride temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail.
• The Magistrate’s action should be directed against the wrong-doer rather than the wronged. 
• Furthermore, it would not be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on the consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would affect only a minor section of the community rather than prevent a larger section more vociferous and militant.
• They are basing their customary rights on two foundations, namely, decisions of competent Civil Courts adjudicating these rights in their favor and registration of Shia Wakfs concerning the plots and structures for the performance of these practices and functions under secs. 5 and 38 of the U.P. Muslim Wakfs Act, 1936
• This is a clear case of an existing or established entitlement to the customary rights in favor of the Shias’ community to perform their religious ceremonies and functions over the plots and structures in question under the decree of competent Civil Court for the enforcement of which the instant Writ Petition has been filed.
• It seems to us quite clear having regard to the six properties being specifically asked to be entered in the list of Shia Waqfs by Imam Ali Mahto in his application and the order made thereon, all the properties mentioned in the application must be regarded as having been entered in the list of Shia Waqfs by the Chief or Provincial Commissioner for Waqfs and the Notification under s. 5(1)
• When these plots and structures, particularly these three plots were being registered as Shia Waqfs under the U.P. Muslim Waqfs Act 1936 by the Shia Board and Sanads of Certificates of Registration in respect thereof were being issued in December 1952, the two Sunni Lessees who are said to have obtained a Lease on 20.4.1952 did not raise any objection to such registration. The Shias customary rights acquired by prescription over these plots cannot thus be defeated by such derivative title.

Final Decision:

The Court held that the petitioners and through them the Shia community of Mohalla Doshipura, Varanasi has established their existing customary rights to perform their religious rites, practices, observances, ceremonies, and functions minus the recitation and utterance of Tabarra (detailed in the writ petition) over the Plots and structures in question and respondents 5 and 6 and the Sunni community of Mohalla Doshipura are permanently restrained by an injunction from interfering with the exercise of said rights in any manner by the petitioners or members of Shia community and respondents 1 to 4, particularly the executive magistracy of Varanasi is directed if action under section 144 Cr. P.C. is required to be taken, to issue their orders under the said provision having regard to the principles and the guidelines indicated on that behalf in this judgment. The writ petition is thus allowed but each party will bear its own costs.

This case law analysis is written by Prateek Chandgothia, a first-year BA LLB (Hons.) student at Rajiv Gandhi National University of Law, Punjab.

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