Tag: caseanalysis

CASE NUMBER

Crl.A. No 14/2013

CITATION

W.P. (C) 3918/ 2020

BENCH

Justice Pratibha M. Singh

DECIDED ON

12. 04. 2021

RELEVANT ACT/SECTION

Narcotics Drugs and Psychotropic Substances Act, 1985 and Article 21 of the Constitution.

BRIEF FACTS

The petition was filed by the petitioner for the removal of the judgment titled, ‘Custom v Jorawar Singh Mundy’ from the platforms such as Google, Indian Kanoon, and Vlex.in. The case of the petitioner is that the petitioner is of Indian origin but an American citizen. He claims that he is indulged in portfolios of real estate etc. When he came to India, a case under Narcotics Drugs and Psychotropic Substances Act, 1985¹ was made against him. After that, he was acquitted by the trial court under this case. the decision of the trial court resulted in an appeal before the high court. The high court decided to uphold the acquittal of the petitioner.

According to the petitioner’s claims, he or she returned to the country and attended the University of San Diego School of Law to further pursue his or her legal education. After that, he understood that he was at a severe disadvantage because any prospective employer looking to check his record before hiring him might easily find the court’s verdict by conducting a google search. Despite having a strong academic background, the petitioner claims that he has been unable to find employment that meets his expectations. He attributes this inability to the fact that this judgment is publicly available online.

The petitioner also issued the legal notice to the platforms such as Google India Private Ltd, Google LLC, Indian Kanoon, and vLex.in. The website of vLex.in contended that they have removed the said judgment but it is still available on other platforms. To recognize the petitioner’s Right to Privacy under Article 21 of the Constitution², the prayer in this writ petition is to direct the removal of the abovementioned ruling from all respondent platforms.

ISSUE

Whether a court order can be removed from the online platforms?

DECISION

The court held that the charges brought against the petitioner were dismissed from the case. Despite having been ultimately found not guilty in the case by the aforementioned judgment, this Court believes that the petitioner is still entitled to some interim protection while the legal issues are still pending adjudication by this Court because of the irreparable harm that may be done to his social life, career prospects, and legal standing.

The court directed the respondent no. 2 and 3 to remove the judgment titled, ‘Custom v. Jorawar Singh Mundy’ from their search results. Whereas, Indiankanoon was directed to block the said judgment from being retrieved by using search engines such as Google, Yahoo, till the date of the next hearing.

CONCLUSION

A person’s life will be as bad as hell if information about their criminal history or any occurrence that would have caused the public to have a bad opinion of them is made public. He or she will be imprisoned in their former lives. India has experienced rapid development in recent years. This development occurred on top of the nation’s digital technologies roots. The internet and smartphones have integrated seamlessly into our daily lives. Additionally, courts are now acknowledging that Article 21 covers access to the internet. Some of us would prefer to move on from our pasts and forget about them. The issue emerges when a person’s past mistakes chain him and causes him to make the same mistakes over and over again.

The Right to be forgotten aims to provide assistance in this issue. The scope of the Right to be forgotten should be expanded and must include removing everything that is “irrelevant, erroneous, or inadequate.” It should not be limited to “sensitive personal data.” In this instance, the petitioner’s attorney has highlighted the fact that, in the absence of supporting legislation, the public is likely to disagree with the petitioner’s request and support the right to privacy and freedom of expression. According to Akshat Bajpai, a lawyer for one of the petitioners, big multinational corporations operate differently in Europe than they do in India when it comes to following the law. It is essential to secure someone’s privacy given how quickly technology is developing. The right to be forgotten ensures that an individual’s privacy will be protected and supports their right to free speech. The establishment of such a right in India will assist the populace in managing their “digital footprint” and address the problem of data security and misuse that has recently emerged.

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REFERENCES

1. The Narcotics Drugs and Psychotropic Substance Act, 1985.
2. The constitution of India, 1950, Art. 21

This article is written by Prerna Pahwa, a student at Vivekananda Institute of Professional Studies, New Delhi.

Case Number

Civil Appeal no. 2030/1968

Equivalent Citation

1978 AIR 1613, 1979 SCR (1) 218

Petitioner

R. G. Anand

Respondent

Delux Films & ors.

Bench

Justice Syed Murtaza Fazalali, Justice Jaswant Singh, Justice R. S. Pathak

Decided on

August 18, 1978

Relevant Act/Section

Section 2 of the Copyright Act, 1957.

Brief Facts and Procedural History

The appellant-plaintiff is a theater play producer, playwright, and dramatist. A number of plays were written and staged by the appellant. On the other hand, the play ‘Hum Hindustani’ is what the appeal is about. He wrote this play in 1953, and it was performed for the first time in 1954. Since then, the piece has gained popularity. The second defendant, Mr. Mohan Sehgal, wrote the appellant a letter in November 1954 asking for a copy of the play, so that he could decide whether or not to make a movie about it. The appellant and defendant No. 2 afterward got together in Delhi. The second defendant announced the making of the motion picture ‘New Delhi’ in May 1955. Delhi saw the film’s release in September 1956. The movie was seen by the appellant.

In his lawsuit, the appellant claimed that the play “Hum Hindustani” served as the only inspiration for the movie “New Delhi,” that he had told defendant No. 2 about the play and had dishonestly mimicked it in his movie, violating the plaintiff’s copyright as a result. As a result, the appellant filed a lawsuit seeking compensation for damages, an accounting of the defendant’s profits, and a permanent order barring the defendants from showing the movie. The defendants denied liability in the lawsuit. The defendants argued that defendant No. 2, a film director, producer, and director of Delux Films, met the appellant at the invitation of a mutual friend, Mr. Gargi, and saw the play’s script, concluding that the play was unsuitable to produce a feature-length, mass-market motion picture. The defendants argued that there could not be a copyright on the topic of provincialism that anyone might use or adopt in their own way. The defendants additionally argued that both in terms of content, spirit, and climax, the movie differed significantly from the play. The simple fact that there are some similarities between the movie and the play can be explained by the fact that both the play and the film share a common source: provincialism.

The appellant was found to be the owner of the copyright in “Hum Hindustani” by the trial court, which also determined that there had been no infringement of the appellant’s copyright. After that, the appellant appealed to the Delhi High Court. The Delhi High Court’s Division Bench upheld the decision rejecting the appellant’s lawsuit.

Issues before the Court

1. Whether the film ‘New Delhi’ is an infringement of the copyright of the play name ‘Hum Hindustani’?
2. Whether Respondents-Defendants have infringed the copyright of the Appellants-Plaintiffs by making the movie named ‘New Delhi’?

Decision of the Court

The Supreme Court of India’s decision in this case which dealt with copyright under intellectual property rights was significant. A copyright violation in the area of cinematography is the subject of the lawsuit. When an original creative work is used or duplicated without the creator’s consent, copyright is violated.

The plaintiff was unable to show that the defendant in any way imitated his play. A reasonable inference of colorable imitation can be made if there are significant and unavoidable similarities between the copied work and the original. The Court ruled that an infringement action may only be brought if an infringement may be identified by a regular person. Since no obvious comparison could be found in this instance, the film was not perceived as a copy of the original play. As a result, the Supreme Court dismissed the appeal since there was no copyright infringement.

The learned counsel representing the appellant claimed that the Trial Court had applied the relevant legislation in an improper manner. The court also disregarded the legal arguments made regarding the copyright violation by courts in India, England, and the USA. The experienced attorney further claimed that the movie and the appellant’s play are inextricably linked. The setting was the same as the play’s, and the plot was essentially the same. The Punjabi and Madrasi backgrounds of the families involved were similar, and the play’s leading heroine was fond of singing and dancing. Finally, the knowledgeable attorney argued that the respondent attempted to imitate the stage performance, violating the appellant’s copyright, and produced the movie without obtaining the appellant’s permission.

On the other hand, the learned counsel representing the respondent in court categorically refuted the appellant’s assertions. He claimed that the play and the movie were very different from one another. Both of them featured various occurrences, and their core differences were substantial. The experienced attorney added that the Trial Court’s assessment was accurate. Therefore, there was no question that the appellant’s copyright had been violated.

The court’s verdict, which was presided over by Justice Fazal Ali, found that despite the fact that both the play and the movie are founded on the idea of “Provincialism,” the two are very different. The movie also shows other facets of “Provincialism,” such as “Provincialism” when renting out outhouses, which are not included in the play’s portrayal of “Provincialism” during the marriage. The film also shows the negative aspects of dowries, something the play does not. Although there may be some similarities because the idea in both the play and the movie is the same, the Court rejected the Appellants’ claim because it is well-established law that an idea cannot be protected by copyright. The court cited N.T. Raghunathan Anr. v. All India Reporter Ltd., Bombay¹. The court determined that a regular person would not view the play and the movie as being identical. The assertion that the copyright has been breached by the appellants cannot be upheld because the play and movie are so different from one another.

Ratio decidendi

According to the Court, there is no copyright for an idea or a storyline; rather, the manner, arrangement, or expression of such an idea can be protected. Some similarities are unavoidable if the source of the works is shared, but the court must determine whether or not those similarities are significant enough to amount to infringement. It is an infringement if a regular person describes the in question work as a copy or reproduction of the original work after viewing it. The concept need just be repeated, but it must be depicted in a unique way to qualify as fresh original work. If there are more differences than similarities, there was a bad purpose to duplicating.

Obiter Dicta

It becomes particularly challenging for the dramatist in circumstances when the plaintiff must demonstrate infringement of his copyright against a movie, according to Justice Fazal Ali. Because a movie is more able than a play to express broad concepts and ideas. However, it is considered infringement if, after watching both the play and the movie, it appears that the latter is a copy of the former. According to Justice Pathak, it is possible for someone who is using a copyrighted work to their advantage to cover broader topics and make minor adjustments here and there to the theme to demonstrate differences from the original work and elude detection of plagiarism. Additionally, Justice Pathak stated that he might have had a different opinion from the High Court if the facts of the current case had been reopened before this Court. However, as the District Judge and High Court, the Courts of Fact, have both dismissed the Appellant’s claim, this Court would not needlessly interfere with their choice.

The Supreme Court issued the following guidelines:

• No idea, subject, theme, story, or historical or fabled fact can be protected by copyright, and in such cases, copyright infringement is only allowed in the form, style, arrangement, and presentation of the idea used by the author of the copyrighted work.
• Whether the viewer, after reading or viewing both works, is certain and has the unmistakable impression that the later work appears to be a copy of the original.
• It must be established whether the similarities represent fundamental or important aspects of the expressive style of the copyrighted work. There is a need for substantial or significant copying.
• If the same idea is used but is expressed and portrayed differently, there is no copyright infringement.
• It is not regarded as a copyright violation when the published work contains significant variances or unintentional coincidences.
• Copyright infringement has been proven if the viewer comes to the conclusion following the incident that the movie is practically an exact clone of the original play.
• The burden of proof rests with the plaintiff when a film director violates a theatrical performance.

The Court decided in the Respondents’ favor on both issues and found no infringement as a result. The Supreme Court’s ruling in the relevant case is still used as a benchmark when copyright violations are involved. Even Section 13 of the Indian Copyright Act offers three categories under which copyright may exist, providing greater relief to the court system. It’s important to note that none of them refer to ‘ideas’ as a component of this specific intellectual property right.

References

1. AIR 1971 Bom 48, 1982 (2) PTC 342 (Bom).

This article is written by Sanskar Garg, a last year student of School of Law, Devi Ahilya University, Indore.

CITATION

78/2019; 77/2019; 79/2019; 76/2019

BENCH

Justice Manojit Bhuyan; Justice Soumitra Saikia

FACTS AND BACKGROUND OF THE CASE

In the present-day, internet and social media platforms have gained importance over a period of time. The government’s frequent action of shutting down internet services for one region or another on the ground of ‘Public Safety’ has now become a hindrance in the life of people. Despite recognition of Right to Internet under Article 21 of Indian Constitution, it failed to provide relief to citizens. Due to the widespread protests in regions of north eastern areas, it led to chaotic situation in country, resultantly government was forced to shut down internet services as claimed by government of various states. In the instant case there were four petitioners namely Advocate Banashree Gogoi, Deva Kanya Doley, Randeep Sharma and Journalist Ajit Kumar Bhuyan who filed a Public Interest Litigation to challenge the notifications of Government of State of Assam that suspended the internet services on 11^th December 2019. Government banned internet services in 10 of its districts for a complete day and reasoned its action as to stop further protest that may happen due to the newly amended Citizenship Act.

LAWS INVOLVED

Article 32: The right of every citizen to move to Supreme Court if his/her any fundamental right is violated. Supreme Court can issue writs to any government authority, private authority or private individual for that matter.

Article 226: It provides power to High Court for enforcement of fundamental rights or other legal rights by way of issuing writs to any government authority, private authority or private individual for that matter.

Indian Telegraph Act, 1885: It provides that Indian Government has exclusive jurisdiction over maintain, establishment, operating, licensing and oversight over systems either wired or wireless. 

Section 5 (2) Indian Telegraph Act, 1885: It gives authority to governments both at central and state level for preventing of transmission of messaging during a situation of public emergency or for public safety or in the interests of sovereignty, integrity and security of India.

Temporary Suspension of Telecom Services (Public Emergency or Public Safety), 2017: It empowers the government to shutdown internet services in any particular region by way of notification based up on public emergency.  

ISSUE

Whether the State Government of Assam had enough reasons for contentment of public to justify the further continuation of ban on internet services?

DECISION OF COURT

It was recalled by court that an order dated 17-12-2019 has already been passed, that despite of restoration of normal conditions in state the Government of Assam refused to lift the ban on internet services; this results in freezing the entire working of cities. Due to the problems faced by many locals of state in their day-to-day lives, the Hon’ble Supreme Court passed an order that suggests the state government to restore internet services for fewer hours and to justify their action of continuing suspension. It was contented by petitioner that the term ‘Law and Order’ and term ‘Public order’ have different meanings and State Government is not making any effort for assessing the situation for peaceful ‘Public Order’. Whereas, State Government claimed it reviewed its decision where they put forward those inputs from various agencies and a meeting among State Authorities regarding the issue led to decision’s continuation.

It was argued the restoration of broadband services and lifting of curfew itself shows that ‘grave’ law and order situation has already waved away. Court stated that respondents have no reasons to justify that internet services disrupts law and order situation. Finally, court states that internet services play a major role in lives of people with advancement of Science and Technology, shutting down internet services would only cause further chaos in lives of people. The state government when issued notifications there was reasonable apprehension regarding law and order in society. Law surely does permit suspension of internet services whenever necessary however, in the current situation the State Authorities failed to assess the situation and to justify the continuation of ban on internet services. Court directed the Government of State of Assam to restore internet services on 19-10-2019 at 5.00 P.M. State is free to take any steps for stopping any violence that may take place in the future. The decision by court protects and extends the ambit of an individual Right to Receive and impart information providing no exception to state’s justification for ban. It gives a broad view over the protection of fundamental rights not based on mere apprehension of threat to ‘Public Safety’. The government must have enough reasons for internet shutdowns or for hindrance in way of any fundamental right if it failed to contentment of public for any action that harms one’s fundamental rights, it may suffer consequences.    

This case analysis is written by Simran Gulia, currently pursuing BA LLB from Maharaja Agrasen Institute of Management Studies.

Case Number

WP (Criminal No.) 115 of 2009

Equivalent Citation

AIR 2011 SC 1290, 2011 AIR SCW 1625

Petitioner

Aruna Ramchandra Shanbaug

Respondent

Union of India, State of Maharashtra, Dean- KEM Hospital Mumbai

Bench

Justice Markandey Katju, Justice Gyan Sudha Misra

Decided on

March 07, 2011

Relevant Act/Section

Article 21 of Constitution of India, Section 309, 306 of Indian Penal Code

Brief Facts and Procedural History

Aruna Ramchandra Shanbaug, the petitioner in this case, was a nurse at the King Edward Memorial Hospital in Parel, Mumbai. On the evening of November 27, 1973, a sweeper from the same hospital attacked her and used a dog chain to yank her back while wrapping it around her neck. Additionally, the sweeper attempted to rape her; however, when he discovered she was menstruating, he sodomized her instead. He tightened the chain around her neck in order to stop her from moving or causing any havoc. A cleaner discovered her body the following day, unconscious and covered in blood. It was thought that the chain’s strangulation caused the brain’s oxygen supply to stop, which led to brain damage. She entered a permanent vegetative state as a result of this incident, which permanently injured her brain (PVS). Later, journalist and activist Pinki Virani petitioned the Supreme Court under Article 32 of the Constitution, claiming there was no chance of her being resurrected and recovering. She ought to be released from her suffering and allowed to die through passive euthanasia.

The respondent parties, KEM Hospital, and Bombay Municipal Corporation submitted a counter-petition in response to this petition. The gaps between the two groups widened as a result. Due to the discrepancies, the Supreme Court appointed a group of three distinguished doctors to conduct an investigation and provide a report on the precise mental and physical state of Aruna Shanbaug. They thoroughly researched Aruna Shanbaug’s medical background and concluded that she is not brain dead. She responds differently depending on the situation. She favors fish soups and gentle religious music, for instance. If there are many people there, she feels uneasy and becomes upset. When there are fewer people around, she is at ease. The KEM Hospital personnel were adequately caring for her. She was constantly kept tidy. Additionally, they found no indication from Aruna’s body language that she was willing to end her life. Additionally, the KEM Hospital nursing team was more than happy to take care of her. Thus, the doctors opined that euthanasia in this matter is not necessary. She held this job for 42 years before passing away in 2015.

Issues before the Court

1. Is it acceptable to remove a person’s life support systems and equipment if they are in a permanent vegetative state (PVS)?
2. Should a patient’s preferences be honored if they have previously said that they do not want to undergo life-sustaining measures in the event of futile treatment or a PVS?
3. Does a person’s family or next of kin have the right to request the withholding or removal of life-supporting measures if the individual has not made such a request already?

Decision of the Court

This decision was made on March 7, 2011, by the prestigious Supreme Court of India Division Bench, which also included Justices Markandey Katju and Gyan Sudha Mishra. The Transportation of Human Organs Act of 1994’s definition of brain death and the doctor’s report were both used by the court to rule that Aruna wasn’t brain dead. She didn’t need the assistance of a machine to breathe. She used to exhibit various signs and felt things. She was in a PVS, but she was still in stable condition. The justifications offered here are insufficient to end her life. It wouldn’t be acceptable. In addition, the court stated during its discussion of the matter that Pinki Virani would not be the next-of-kin in this particular situation, but rather the personnel of the KEM Hospital. Therefore, KEM Hospital has the authority to make any such choice on her behalf. In this instance, it was the food that she was relying on for survival. As a result, removing life-saving measures, in this case, would entail denying her sustenance, which is not permitted by Indian law in any way.

The Supreme Court recognized passive euthanasia under specific circumstances. The High Court would have to approve the decision to end a person’s life after following the proper procedure, the court decided, in order to prevent future abuse of this option.

When a request for passive euthanasia is made to the High Court, the Chief Justice of the High Court must convene a Bench of at least two justices to decide whether the request should be accepted or denied. Before rendering a decision, the Bench should take into account the advice of a panel of three reputable physicians. The Bench also proposes these physicians after consulting with the pertinent medical professionals. Along with appointing this committee, the court also has to notify the state, kin, family, and friends and provide them a copy of the committee of doctors’ report as soon as it is practical. After the court has heard from all parties, it should then issue its ruling. In India, this method must be followed up till relevant legislation is passed.

Aruna Shaunbaug was refused euthanasia in the end after taking into account all of the relevant facts of the case. The High Court further ruled that if the hospital staff ever feels the need for the same thing, they may petition the High Court in accordance with the established procedures. By giving a comprehensive framework of standards that must be fulfilled, the decision in this case has helped to clarify the concerns surrounding passive euthanasia in India. The court also suggested that Section 309 of the IPC be repealed. Every aspect of the case has been covered in detail. Now, let’s talk about the appearance of two crucial characteristics that emerged in this situation and have been addressed previously. The court also advocated for the abolition of IPC Section 309.

India is now among the nations that have legalized passive euthanasia. However, there are still flaws in the way passive euthanasia is carried out. It was a laborious process because it was mandated that every case obtain approval from the High Court after the Shanbaug case. Passive euthanasia is now more difficult to put into practice thanks to the new ruling, which calls for the execution of the directive in the presence of two witnesses, verification by a judicial magistrate, approval from two medical boards, and a jurisdictional collector. The fundamental goal of passive euthanasia is to terminate the suffering of the person in question, therefore this delay is a significant obstacle. On the other hand, if the process is made too liberal and simple, it is always open to serious abuse.

The Supreme Court established standards for passive euthanasia in the case of Aruna Shanbaug. These regulations allowed for the removal of a person’s life support system, which might ultimately result in death. Passive euthanasia is now legal in India under certain circumstances that will be ruled by the High Court. Later in 2018, the Supreme Court issued a new ruling in the case of Common Cause v. Union of India¹, reinstating the right to a dignified death, legalizing passive euthanasia, and granting permission to remove life support from patients who are terminally ill and in a life-long coma. The Court also introduced the idea of “living wills” along with this. In these cases, the directions to be followed are-

1. A Passive Euthanasia application must be pending with the relevant High Court. In any case, two appointed authorities must make up the Bench that the Chief Justice of the High Court appoints, and they will decide whether or not to approve the grant.
2. The Bank must first consider the opinions of a three-person medical committee that it will select before making a decision. One of the three professionals should be an expert in the nerve system, while the other two should be specialists and therapists.
3. When a person goes missing, the High Court Bench will notify the State and those closest to the missing individual, such as guardians, companions, siblings, and sisters.
4. When it becomes available, the Court must send them a copy of the expert council report.
5. After hearing from each gathering, the High Court’s seat must announce its decision.
6. The Supreme Court must make a decision immediately. The court expressed its extreme gratitude to the KEM staff for their dedication over an extended period of time.

This case clarified the euthanasia-related concerns and established criteria for widespread euthanasia. In addition, the court recommended that Section 309 of the Indian Penal Code be repealed. The subject of passive euthanasia, which was previously hardly ever considered, started with this case. It significantly broadens the scope of Article 21 of our Constitution and explains the stance on the right to a dignified death. In the Indian context, this decision is hailed as progressive.

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REFERENCES

1. WP © 215/2005

This article is written by Sanskar Garg, a last year student of School of Law, Devi Ahilya University, Indore.

CITATION

1992 AIR 1858, 1992 SCR (3) 658

APPELLANT

Miss Mohini Jain     

RESPONDENT

State Of Karnataka And Ors.

BENCH

Kuldip Singh (J)

DECIDED ON

30 July, 1992

ACTS/SECTIONS

Constitution of India, 1950-Articles 41, 45-Right to Education, Karnataka Educational  Institutions  (Prohibition of Capitation Fee) Act, 1984 ( Section 3)

BRIEF FACTS

Mohini Jain was a young lady initially from Meerut, Uttar Pradesh, and needed to seek after MBBS from a confidential school in Karnataka named Sri Sriddharatha Medical College, Agalokote, Tumkur. As per the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, it was laid out by the state government that Private Medical Colleges will charge just ₹2000 per annum from understudies conceded on Government seats, ₹25,000 from understudies from the territory of Karnataka and ₹60,000 from understudies of the other states in India. Aside from this, no expense ought to be requested from the understudy. This step was taken to guarantee that the Private Medical Colleges don’t charge cash from understudies in return for affirmation.

The administration of the school illuminated her that she would need to present an amount of ₹60,000 for each year however her dad passed on to the specialists that ₹60,000 is an enormous measure of cash and he was unable to manage the cost of that. On this premise, she was denied confirmation in the school. Miss Jain later affirmed that separated from the ₹60,000 the school likewise requested ₹4,50,000 as a capitation charge however this was denied by the school.

The Respondents guaranteed that she was approached to pay a measure of Rs. 60,000, and thusly, the Management got a call from the Petitioner’s dad who pronounced that he didn’t possess the ability to pay the extreme sum.

The Petitioner guaranteed that she was approached to pay an extra amount of around four and a half lakhs as capitation expense, which was denied by the Respondents energetically. Ms. Jain recorded a request under Article 32 of the Indian Constitution testing the notice of the Karnataka Legislature that considers requesting such excessive sums from understudies for the sake of educational cost.

The appeal guaranteed that the warning was violative of Articles 12, 14, 21, and 41 of the Indian Constitution as it conspicuously denied the Right to training to Indian residents on an erratic premise. The expense charged could without much of a stretch be recognized as a capitation charge. It was, in this manner, violative of Section 3 of the Act and against the excellencies of Right to Equality and Right to Education.

ISSUES BEFORE THE COURT

• Whether the Right to Education is ensured to the residents of India in consonance with Fundamental Rights, and whether charging a capitation expense infracts something similar?
• Whether the charging of capitation expense is violative of the fairness statement cherished in Article 14?
• Whether the criticized warning allowed the charging of a capitation expense dishonestly?
• Whether the notice is violative of the arrangements of the Act restricting the charging of such expenses?

ARGUMENTS ADVANCED

The Petitioner battled that the burden of such colossal charges for training by the confidential school is against the different articles under the Indian Constitution.

For this situation, the Respondent battled at first that the rules which have been continued in the confidential school with respect to the capitation expenses are not chargeable from those understudies who were equipped for the Government situates yet just from those understudies who were from various classes. They additionally contended that as they were following such grouping of seats in the school under merit list or under nonmeritorious list, which suggests that Government seats for up-and-comers who were under merit rundown and other people who were not. Accordingly, the administration leading group of the school has the option to charge expenses from the individuals who didn’t go under the legitimacy list.

One more contention by the Respondent was that as they were a confidential clinical school and there was no monetary guide which was given from the public authority Karnataka or the focal government furthermore basically these confidential clinical universities used to cause 5 Lakh Rupees as use for MBBS course. Ultimately, they additionally battled that the confidential clinical universities have consistently observed the Guideline of regulation and submitted to every one of the regulations for the smooth working of the organization and were legitimate in charging the capitation expenses.

HELD

After hearing the contentions from both the gatherings the Apex Court held that however the Right to Education isn’t explicitly referenced as a Fundamental Right; Articles 38, 39(a), (f), 41, and 45 of the Indian Constitution, it is clarified that the of the constitution makes it required for the State to instruct its residents. Article 21 of the constitution peruses “No individual will be denied of his life or individual freedom besides as indicated by the technique laid out by regulation”. Under Article 21 of the constitution and a singular’s poise can’t be guaranteed except if he has a Privilege of Education and taught himself. Further, the Court thought about the Universal Declaration of Human Rights, by the United Nations and a few cases that held that the Right to Life envelops more than “life and appendage” including necessities of life, sustenance, haven, and education.

Charging immense expenses limits admittance to instruction to the lower layers of society and makes it accessible just to the more extravagant segment of individuals. Poor meriting up-and-comers can not get confirmation because of the failure to pay the endorsed charges and as a result, in instructive establishments, a resident’s “All in all correct to Education” gets denied. Further, permitting the charging of an exceptionally high capitation expense disregards Article 14 of the Constitution of India the Court noted. The main strategy for admission to clinical universities ought to be founded on merit alone. The court likewise said that the judgment cannot is applied reflectively and cases past this cant receive the reward of the judgment.

CONCLUSION

The Hon’ble Court displayed its choice of standards of social government assistance and value. 10 years and a half before ‘Right to Education’ was officially presented in the Constitution. The judgment is moderate and somewhat radical. The Court was constant in its understanding of what summed as a capitation expense and its relevance — or deficiency in that department. Its exhaustive assessment of Fundamental Rights interlinked with the Right to training was exemplary. The Court underscored the Right to rise to the opportunity being similarly essentially as vital as the Right to uniformity itself. An extreme assertion in the recently changed Indian setting, the idea that the Right to training moved from the Right to life honored the philosophies of the days of yore. The Court put import on merit as opposed to monetary capital, a demonstration that should have been visible as an obstruction against privatizing instruction.

This article is written by Arpita Kaushal, a student of UILS, PUSSGRC, HOSHIARPUR.

CITATIONS

1990 AIR 1412

BENCH

Justice S.R. Pandian; Justice K. Jayachandra Reddy 

FACTS

Due to poverty and unemployment, many children are forced to work in manual labor or as maids but, those who get into the hands of people like pimps and brothel keepers are deceived by them, and eventually pushed into ‘Flesh trade’. The trauma they suffered after living in claustrophobic rooms for countless days makes them fearful of the outside world and they may suffer psychological problems for an infinite duration of time. Some of them may be unwilling to live a life of respect and dignity after suffering so much in their life and may surrender to the end of life. The petition was filed by a vigilant citizen Vishal Jeet, he requested the Hon’ble Supreme Court to give direction for inquiry of those police officials in whose jurisdiction the practice of forced prostitution, devdasi system, and jogin traditions were used widely and for rehabilitation of those who become victims of such system.

ISSUE

Whether Supreme Court can issue guidelines or not?

LAWS

Indian Constitution– Article 23: Provides that exploitation against human beings in the form of begar, forced labor, and trafficking of human beings must be prohibited and anyone who contravenes this law is punishable with the due procedure of law.

Article 32: It gives a citizen of India, Right to Approach the Supreme Court in case of violation of any right mentioned in Part 3 of the Indian Constitution. Supreme Court has the power to issue writs whichever is suitable for enforcement of violated Fundamental rights.

Article 35: Any offenses committed against any individual under Part 3 of the Indian Constitution must be punishable with the suitable legislation enacted by Parliament.    

Article 39 Clause (e): It directs that it’s a duty of the state to protect men and women are treated well and children must not be pushed to work in factories or any working companies due to their economic conditions.

Article 39 Clause (f): States must ensure that all children are treated with dignity and healthy manner and must not be exploited. 

Immoral Traffic (Prevention) Act, 1956– This act was made with the objective of punishing those who are involved in trading human beings as products for the purpose of sexual exploitation.

Indian Penal Code, 1860– Section 366A: Anyone who by whatever means forces or deceives a minor girl to do anything where she will be forced to be in illicit with another person shall be punishable with fine and 10 years imprisonment.   

Section 366B: Any person who is importing a girl under the age of 21 years from any country that is not India knowing that she would be forced to have illicit intercourse with another person shall be punishable with imprisonment of 10 years with a fine.    

Section 372: Any person who sells or buys a girl under the age of 18 years for the purpose of prostitution or is forced to have illicit intercourse with another person would be punished with imprisonment up to 10 years and liable to pay a fine. 

Section 373: Anyone who buys or has possession of a minor where she would be forced to have illicit intercourse with another person shall be punished with a fine and imprisonment up to 10 years.

Juvenile Justice Act, 1986–  Section 13: Empowers a police officer or any other official appointed by the state government to look after any neglected juvenile and bring them within the umbrella framework of this act.

Section 15: The Board can hold an inquiry under this act and can pass order which it may deem fit in favor of Juvenile.

DECISION OF COURT

Supreme Court denied giving any directions in this regard on the opinion that this is a socio-economic problem, hence, the measures must be taken carefully giving more emphasis to the prevention of such incidents and not the aftermath of such events. To obtain better results government must keep the laws in check. Supreme Court was of the opinion that issuing direction to the Central Bureau of Investigation to enquire throughout India about the social evils that girl children may face is not possible. The Supreme Court after hearing contentions of both the parties stated that both the Central and State government should organize a committee that would give advice to the government on the need for schemes for care, protection, and rehabilitation of victims of ‘Flesh Trade’. To suggest government laws that needed amendments and programs to create awareness among people who possibly may become victims of trafficking. Supreme Court also directed the government both at the state and central levels to ensure that Devdasi System and Jogin traditions come to an end. Governments must ensure the successful implementation of schemes made for the victims.  

This case analysis is written by Simran Gulia, presently pursuing BA LLB from Maharaja Agrasen Institute of Management Studies.

CASE NUMBER

1708  of 2015

CITATION

(2015), 834 SC

APPELLANT

RAJIV SINGH

RESPONDENT

STATE OF BIHAR

BENCH

V. Gopala Gowda, Amitava Roy

DECIDED ON

December 16, 2015

ACTS / SECTIONS

Sections 304B, 201, 498A of the Indian Penal Code , Section 365, Sections 3 and 4 of the Dowry Prohibition Act, 1961, Section 323 Cr.P.C, Section 313, Section 293 Cr.P.C.

BRIEF FACTS

An affectionate vacation excursion of a recently marry youthful couple met with a sad end, with the puzzling vanishing of the spouse from the organization of her significant other, on the train where they were going coming back home. The litigant, the spouse, in the orderly realities and conditions, stands charged and sentenced under Sections 304B, 201, 498A of the Indian Penal Code, what’s more, has been condemned to go through thorough detainment for shifting terms for the offenses in question. The High Court of judicature at Patna, having avowed the conviction and sentence recorded by the learned preliminary court, the litigant looks for a change in the moment procedures, challenge being laid to the judgment and request dated 16.05.2014 delivered in Criminal Appeal (SJ) No. 1169 of 2011.

A short introduction to the horrendous episode is imperative. Rani Archana Sinha got hitched on 29.04.2007 with the appealing party as indicated by Hindu rituals and had properly joined the marital home. Archana was a rehearsing advocate and had shown up in a cutthroat assessment in which, according to the outcomes proclaimed on 10.08.2007, she was not chosen. The couple arranged their special night outing to Darjeeling and continued thereto, by Capital Express on a similar date. They landed at New Jalpaiguri Station, and in the wake of visiting the spots of their advantage, as planned, they on 14.08.2007 boarded a similar help for the return venture at 1500 hrs. As the realities have unfurled from the First Information Report stopped by the appealing party with the Mokamah G.R.P.S. on 15.08.2007, the couple ate at Katihar Junction at 2000 hrs whereafter they turned in their particular billets No. 33 (appealing party) and negative. 35 (Archana) in mentor S 1 of sleeper class roughly at 2100 hrs.

According to the adaptation of the appealing party, he awakened at 0510 hrs on 15.08.2007 at Bakhtiarpur Station, to observe that his better half was absent from her introduction to the world whereafter, he began looking for her on the running train. As per him, when the train arrived at Patna Junction, he searched for her on different trains likewise thereat. His supplication is that on being enquired, the travelers in his mentor avowed that the woman was accessible in the train up to 0400-0430 hours. The litigant’s statement arranged subsequently, he revealed the matter first with the GRP, Patna, and at last stopped the First Information Report with Mokamah G.R.P.S.

ISSUES BEFORE THE COURT

• Whether Archana had vanished of consumption or real wounds or whether her passing had happened in any case than in typical conditions? Assuming such passing is demonstrated, whether it very well may be incidental and neither self-destructive nor desperate?
• Whether soon before her passing, she had been exposed to brutality and provocation by the litigant and any of his family members for or regarding interest for settlement?

HELD

In the current realities of the current case, the assumption engrafted under Sections 304B IPC and 113B of the Indian Evidence Act isn’t accessible to the arraignment as the fundamental central realities to set off such assumption have stayed unproved. The indictment has neglected to lay out for certain the demise of Archana. To repeat, the proof all in all bearing on endowment interest and provocation or abuse in association therewith is likewise not persuading.

On a combined examination of the proof on record, we are consequently compelled to hold that in current realities and conditions of the case, the indictment has neglected to demonstrate the charge under Sections 304B/498A/201 IPC against the litigant. The courts underneath, in our gauge, have neglected to look at and assess the proof on record in the right point of view both genuine and legitimate, and consequently have horribly failed in returning a finding of responsibility against him on the above charges.

It is very much dug on a basic level of a criminal statute that a charge can be supposed to be demonstrated just when there is sure and express proof to warrant lawful conviction and that no individual can be held liable on unadulterated moral conviction. Howsoever grave the supposed offense might be, generally blending the inner voice of any court, doubt alone can’t replace legitimate evidence. The deeply grounded cannon of law enforcement is “fouler the wrongdoing higher the evidence”. In undeniable terms, it is the command of regulation that the indictment prevails in a criminal preliminary and needs to demonstrate the charge(s) without question.

Doubt, despite how grave it very well might be, can’t replace evidence, and there is an enormous contrast between something that “maybe” demonstrated and “will be proved”. In a criminal preliminary, doubt regardless of areas of strength how should not be allowed to happen during verification. This is for the explanation that the psychological distance between “maybe” and “must be” is very enormous and separates ambiguous guesses from sure ends. In a lawbreaker case, the court has an obligation to guarantee that simple guesses or doubts don’t replace legitimate confirmation. The huge distance between “maybe” valid and “must be” valid, should be covered via clear, fitting, and irreproachable proof created by the indictment, before a blamed is censured as a convict, and the fundamental and brilliant rule should be applied.

In supplementation, it was held in confirmation of the view taken in Kali Ram versus Province of H.P. (1973) 2 SCC 808 that assuming two perspectives are conceivable on the proof cited for the situation, one highlighting the responsibility of the denounced and the other to his blamelessness, the view which is positive for the charged ought to be taken on.

This Court, among others, in Amitbhai Anilchandra Shah versus Focal Bureau of Investigation and another (2013) 6 SCC 348, while underlining the vitality of a fair, top to bottom examination had seen that researching officials are the head bosses in the law enforcement framework and dependable examination is the main step towards confirming total equity to the survivors of the case. It was decided that regulating law enforcement is a two-end process, where watching the guaranteed freedoms of the denounced under the Constitution is pretty much as basic as guaranteeing equity to the person in question.

This article is written by Arpita Kaushal, a student of UILS, PUSSGRC , HOSHIARPUR.

CITATION

5 US 137

APPELLANT

William Marbury

RESPONDENT

James Madison

DECIDED ON

24 February 1803

COURT

US Supreme Court

JUDGES

Justice John Marshall

AREA OF LAW

Doctrine of Judicial review

BACKGROUND

The most controversial election in the history of America is the one occurred in 1800, where the anti- federalists run by democratic republican and vice-president, Thomas Jefferson took the office. Due to the fright of losing the influence, the federalist led congress passed the midnight judges act which was earlier called as “judiciary act of 1801”.  Under this act, they re- organised the federal judiciary and the District of Columbia organic act by appointing new justiceship and judgeship. The head of federalist, john Adams appointed several federalists as judges and they are thus called as “midnight judges or midnight justices of peace” and were approved by congress. As a final step the commissions are supposed to be physically delivered to the appointees by the secretary of state and that was john Marshall.

ISSUE

John Marshall, the chief justice, was unable to deliver the commissions before the Jefferson sworn in the next day.  The undelivered commissions were still in the office even after Madison took in charge as the secretary of the nation. And he was instructed by Jefferson not to approve the new commissions. One among them who never got the commission was William marbury. Congress sanctioned US Supreme Court to issue the writ of mandamus under judiciary act, 1789 where a case was filed against Madison by marbury in United States Supreme Court under its original jurisdiction to bring Madison deliver the commission.

JUDGEMENT

At the initial stage, the chief justice, marshal stated that: “marbury had been lawfully appointed and confirmed as the justice of peace and therefore had a right to his commission”. But unfortunately, court denied to issue the writ by stating that the section of the judiciary act, 1789 is unconstitutional. The section was at odds with the article III of constitution which specifically lays out the original jurisdiction, though it empowers congress to pass laws related to court’s appellate jurisdiction.

RATIO DECIDENDI

• In this landmark case, Supreme Court stated the act to be unconstitutional as it tends to expand the Supreme Court’s original jurisdiction beyond the limit referred in constitution.
• It was through this case the idea of “judicial review” got established.

CONCLUSION

The case was stated as a landmark case in the history which led to the emergence of concept ‘Judicial review”.