Tag: #caseanalysis

Introduction

In Arjun Pandit Rao v. Kailash Kushanrao, the Supreme Court held that electronic recordings require a certificate under Section 65B (4) of the Evidence Act (“Act”) to be accepted. The certificate acts as verification of the identity of an electronic record and contains information on any equipment used in its creation. It is signed by someone in a position of responsibility for the operation of the relevant device or the management of the relevant activities.

Background

In the same case, in July 2019, a Supreme Court Division Bench forwarded the question to a bigger bench. As a result, the Supreme Court merged the case, which was an appeal against a Bombay High Court decision, in order to determine the correct legal situation in the aftermath of its two contradicting judgments. The Respondents challenged Arjun Panditrao Khotkar, the Returned Candidate (“Appellant”), election to the Maharashtra Legislative Assembly for the November 2014 session in the Bombay High Court. One election petition was submitted by lost candidate Kailash Kishanrao Gorantyal (“Respondent”), while the other was filed by Chaudhary, an elector. Based on video camera footage, the Respondents argued that the election was null and void due to a delay in the presentation of nomination forms. The Bombay High Court accepted the electronic evidence notwithstanding the lack of a Certificate because the party was in “substantial compliance” with the applicable regulations and declared the election unlawful.

The issue of providing the Certificate under Section 65B (4) has been before the Supreme Court on several occasions. In Anvar PV v. PK Basheer (2014), the Supreme Court held that any documentary evidence in the form of an electronic record can only be shown using the method described in Section 65B of the Act. The admissibility of electronic records in determining the validity or dependability of evidence is addressed in Section 65B, which is mandatory. Later, in Shafhi Mohammad v. State of Himachal Pradesh, a Supreme Court Division Bench held that the requirement of a certificate under Section 65 B (4) is procedural and can be waived in the interest of justice if a party does not have one.

Issues

The Supreme Court was faced with two major questions in the present case.

1. Establishing the validity of the Appellant’s election.
2. To settle the position of law relating to providing of Certificate for electronic evidence under Section 65B of the Act due to its inconsistent rulings on the issue

Judgment

The Supreme Court upheld the appealed decision because the Bombay High Court made its decision based on other evidence besides the electronic record data. The Supreme Court ruled that before electronic evidence can be accepted, a Certificate under Section 65B is required,5 upholding the decision in Anvar P.V. and overruling the ‘clarification’ in Shafhi Mohammed. Furthermore, the Supreme Court overruled the Madras High Court’s decision in K. Ramajyam, which held that evidence could be provided in place of the Certificate by a person in charge of a computer device. The Supreme Court also overturned the Tomasa Bruno ruling, finding that Sections 65A and 65B are merely clarifying and procedural in nature and cannot be deemed a comprehensive regulation on the subject. It further indicated that a certificate necessary under Section 65B is not always required. Section 65B (1), according to the Supreme Court, distinguishes between I the original electronic record contained in the computer in which the original information is first stored, and (ii) the computer output containing such information, which may then be treated as evidence of the contents of the ‘original document.’ When it comes to categorizing evidence, this distinction is recognized in legal terms. The Supreme Court clarified that a certificate is not required if the ‘original document’ is produced (as primary evidence). The owner of a laptop computer, computer tablet, or even a mobile phone might do so by going into the witness box and establishing that the concerned device, on which the original information is first saved, is owned and/or operated by him. In all other cases, where the “computer” is part of a “computer system” or “computer network,” and physically bringing such a system or network to the Court is impossible, the only way to provide information contained in such an electronic record is to use Section 65B (1) in conjunction with the production of the required Certificate.

The Supreme Court also considered whether a party is unable to present a certificate if they do not have access to an electronic device. In light of the Evidence Act, the Code of Civil Procedure, and the Code of Criminal Procedure, the Supreme Court held that a court has sufficient power and jurisdiction to require the production of any document. If the certificate is not granted, a request for its manufacture might be submitted. It is indicated that a party has completed his legal obligations in order to get the Certificate.

The maxims lex non cogit ad impossibilia, which states that “the law does not demand the impossible,” and impotentia excusat legem, which states that “where there is a disability that makes it impossible to observe the law, the alleged disobedience of the law is forgiven,” were taken into consideration by the Court. The Supreme Court highlighted other cases where this maxim had been applied in similar legal situations. Electronic evidence must be submitted no later than the start of the trial, according to the Supreme Court. However, a judge’s use of discretion in allowing evidence to be filed at a later date in a criminal trial should not cause the accused serious or irrevocable damage.

Similarly, if the accused desires to provide the requisite Certificate, the facts of the case and the Court’s discretion in accordance with the law will be considered. If a trial is still going on, the appropriate certificate can be issued at any moment so that material from an electronic record can be accepted and used in court. The Supreme Court also ordered cellular companies and internet service providers to keep CDRs and other relevant records in a separate and secure manner for the relevant period (in accordance with Section 39 of the Act) if a specific CDR or other record is seized during an investigation during that period.

This is intended to be used in all criminal cases. This will allow the parties to call for such records during the defense evidence stage or if data is needed to cross-examine a specific witness.

The Supreme Court also highlighted a five-judge panel’s report from 2018 proposing Draft Rules for the Reception, Retrieval, Authentication, and Preservation of Electronic Records. In order to provide advice to courts on how to preserve and safeguard electronic evidence, the Court believes that these Draft Rules should be made mandatory. Furthermore, the Bench held that, in order to prevent corruption, appropriate rules for the retention of data used in criminal trials, their segregation, chain of custody, stamping, and record maintenance, as well as for the preservation of metadata, should be framed under Section 67C of the Information Technology Act for the duration of trials and appeals. Justice V. Rama Subramanian agreed with Justice Nariman’s conclusions in his opinion, concluding, among other things, that a re-examination of Section 65 (B) of the Act is urgently required.

Analysis

The Supreme Court’s ruling puts an end to the discussion over the meaning and interpretation of Section 65 (B) of the Act, as well as the issue of certificates for electronic data production in court. Directions to cellular companies and internet service providers to preserve records that can be summoned if necessary are clearly an enabling feature that will ensure that a party can access and rely on evidence to establish their claims. The Supreme Court confirmed the distinction between primary and secondary evidence in the case of electronic documents. A bright-line rule may not work as effectively for electronic records as it does for paper ones. It is unclear whether the legislature will revise Section 65B in its current session.

References

Admissibility of Electronic Records (natlawreview.com)

Written by Vidushi Joshi student at UPES, Dehradun.

CASE NUMBER

Bail Appl. No. 8346 of 2018

CITATION

2019 SCC OnLine Ker 13012

BENCH

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

DECIDED ON

Decided on January 24, 2019

FACTS OF THE CASE

The applicant is a PMSAMA Higher Secondary School Urdu teacher. He oversaw the NSS’s activities. On November 6, 2018, the victim, a minor child, and a student from a different school went to a camp at PMSAMA Higher Secondary School in Malappuram. The applicant is said to have complimented her on her accomplishments. He invited the victim to the principal’s chamber at 4 p.m. He took two pens from his drawer, one of which he gave to the sufferer. He then kissed her on the forehead after touching her hand. It was offensive to the victim since, according to her, it was done with sexual purpose. A complaint was filed on November 27, 2018, alleging these claims, which resulted in the subject offense being registered under Section 10 read with Section 9 of the Protection of Women from Sexual Offenses Act, 2012.

RELEVANT SECTION

Under Section 438 of the Code of Criminal Procedure, this case was filed under the Hon’ble court. Section 438 of CrPC talks about anticipatory bail regarding the commencement of doing some nonbailable offense. Anticipatory bail means that a person who is apprehending an interest can apply for bail in advance. The addition of this provision was a recommendation made by the 41st Law Commission of India.

ISSUES BEFORE THE COURT

Is the accused liable under Section 10 read with Section 9 of the Protection of Women from Sexual Offences Act, 2012?

Section 9 of the POCSO Act: Talks about Aggravated Sexual Assault
Whoever conducts a sexual assault on a child while serving as a police officer: inside the confines of the police station or premises to which he is assigned; or (ii) within the confines of any station house, whether or not located within the police station to which he is assigned;
or
(iii) while performing his responsibilities or otherwise; or
(iv) where he is identified or known as a police officer; or

(b) whomsoever commits sexual assault on a child while serving in the armed forces or security forces in jail, remand home, protection home, observation home, or other places of custody or care and protection established by or under any government authority; or whoever commits sexual assault on a child in a hospital, whether government or private; or whoever is on the staff of management of a jail, protection home, remand home, observation home or other
place of custody or care and protection established by or under any government authority.

Hence, that a child is sexually assaulted by one or more members of a group in furtherance of their common goal, each of those members is deemed to have committed gang sexual assault within the meaning of this clause, and each of those members is liable for the act in the same way as if he had done it alone;

SECTION 10 of the POCSO Act: It talks about Punishment for aggravated Sexual Assault
Anyone who commits serious sexual assault faces a sentence of imprisonment of either kind for a period of not less than five years but not more than seven years, as well as a monetary fine.

DECISION OF THE COURT

The High Court of Kerala held that the entire dispute between the respondent and the petitioner was settled amicably. The bench of Justice Alexander Thomas in the judgment wrote that the dispute was settled amicably and ordered that petitioner’s mother was required to submit an affidavit stating that she had no problem with the quashing of FIR.

SUPREME COURT ON THE DECISION

Justice M.R. Shah of the Supreme Court held in Laxmi Narayan that the High Court in that the case had not taken into account the relevant facts and circumstances of the case, particularly the seriousness of the offenses and their social impact while quashing the FIR as a result of the parties’ settlement, despite the fact that it was a non-compoundable offense. In that case, Justice Shah found that the High Court failed to assess the distinction between a personal or private wrong and a social wrong, as well as the societal impact.

During the hearing of the Kerala Government’s appeal against the ruling, the bench observed the government’s argument that quashing the FIR is not relevant in light of the Supreme Court’s decision in the case State of Madhya Pradesh vs. Laxmi Narayan & Ors (2019). Justice M.R. Shah of the Supreme Court held in Laxmi Narayan that the High Court in that the case had not taken into account the relevant facts and circumstances of the case, particularly the seriousness of the offenses and their social impact while quashing the FIR as a result of the parties’ settlement, despite the fact that it was a non-compoundable offense. In that case, Justice Shah found that the High Court failed to assess the distinction between a personal or private wrong and a social wrong, as well as the societal impact. In this case, the High Court has taken no pains to examine the complete set of facts in context and has quashed the criminal proceedings on a mechanical basis.

This is written by Dalima Pushkarna student at Dr. Ram Manohar Lohiya National Law University, Lucknow.

This is a major decision by the Supreme Court, which determined that the online arbitration agreement is the most relevant arbitration document. Because the parties do not meet in person, but rather online, it is important to clarify all details of the dispute resolution method in the agreement. Furthermore, the court found that when entering into an agreement, a meeting of minds is critical, and the agreement must comply with Section 7 of the Arbitration and Conciliation Act, 1996.

Facts

Trimex offered VAL the supply of bauxite through email, which the latter accepted after several exchanges of e-mails, confirming the supply of 5 ships of bauxite from Australia to India. Despite the fact that a draught contract had been developed, it still needed to be formalized. After receiving the first consignments of goods, VAL requested that Trimex hold back the next consignment of goods so that they may check the utility value of bauxite. Shipowners, on the other hand, nominated the ship for cargo loading on the same day. Trimex later requested damages from VAL for damages paid to ship owners after the contract was canceled, but VAL rejected by denying any contract. The Petitioner Company is based in Dubai and trades minerals globally. The Respondent is an Indian company that uses Aluminum Ore as one of its primary inputs. Supply of Bauxite (15.10.2007 Offer) (Shipment) The reply accepted the offer through e-mail on October 16, 2007, confirming the provision of 5 shipments of bauxite, in accordance with the contract’s material terms.

The response acknowledges the offer’s acceptance at a subsequent meeting. On November 8, 2007, the respondent sent the petitioner a formal contract with a detailed arbitration clause, which the petitioner accepted with some changes. On 09.11.2007, the petitioner signed a formal Bauxite sales agreement with Rio Tinto of Australia for the supply of 225000 tonnes of bauxite. On 12.11.2007, the respondent requested that the petitioner hold the next consignment. On 13.11.2007, the petitioner informed the respondent that the cargo could not be postponed and requested that they sign the Purchase Agreement. The ship owners nominated the ship for loading the material on November 28, 2007. The petitioner terminated the contract on November 16, 2007, reserving the right to seek damages. The petitioner formally informed the shipowners of the cancellation on November 18, 2007. The shipowner filed a claim for US$ 1 million in a commercial settlement. The Petitioner asked the Respondent to pay the shipowner the stated amount plus an additional 0.8 million US dollars in compensation for lost profits and other expenditures and expenses.

The Respondent denied the Petitioner’s claim, and as a result, the Petitioner was forced to pay the shipowners 0.6 million US dollars in two installments after negotiations. The Petitioner served the Respondent with a notice of claim-cum-arbitration on September 1, 2008, requesting that it either pay up or accept the notification as a referral to arbitration. The Respondent denied the arbitration notice, claiming that the parties had not yet reached an agreement. As a result, the Petitioner filed a request for the appointment of an arbitrator.

Issue

Whether there was any valid subsisting contract between the parties in absence of any formal contract?

Petitioner’s Arguments

The primary position of the Petitioners is that the Contract was legal and binding. The Petitioner argued that: the contract was formed upon the Respondent’s acceptance of the offer for five shipments. the offer of October 16, 2007, was made in response to the Respondent’s request and was based on a previous month’s similar transaction.• the offer that was accepted by the Respondent contained the arbitration clause, which was never objected to The Petitioner also argued for the Contract’s validity, claiming that the Respondent agreed to place an order for 5 (five) shipments only after several e-mail exchanges and agreement on the contract’s material terms, based on which the Petitioner contracted with a bauxite supplier in Australia and also entered into a charter party agreement with the shipowner. The Petitioner emphasized that the arbitration clause was included in Respondent’s copy of the Contract, and because it had not been changed, the apparent conclusion was that the arbitration clause was acceptable to both parties. It also claimed that the offer dated October 15, 2007, containing all of the necessary elements for the Respondents to accept it, including the offer validity period, product description, quantity, price per tonne, delivery (CIF), and payment terms (irrevocable L/C), shipping lots, discharge port, governing law, and arbitration.

Respondent’s Arguments

The Respondent, on the other hand, maintained that no contract could be made because the parties were not ad idem on a number of key and substantial aspects of the transaction. • the product specifications, price, contract price inclusions, delivery point, insurance, contract commencement and conclusion dates, transfer of title, quality check, and demurrage remain undecided, as evidenced by several email exchanges between the parties.• the product specifications, price, contract price inclusions, delivery point, insurance, contract commencement and conclusion dates, transfer of title, quality check, and demurrage remain undecided, as evidenced by several email exchanges between the parties. As a result, the Respondent asserted that in such a situation, (a) the parties cannot be said to be “of one mind” with respect to all parts of the transaction, and (b) the parties cannot be said to be “in agreement” with respect to all aspects of the transaction.

Despite the fact that the Respondent acknowledged exchanging e-mails with the Petitioner, it claimed that there was no concluded contract because the Contract remained unsigned, preventing the Petitioner from enforcing certain obligations reflected in those e-mails and invoking the arbitration clause as if there was a formal agreement. The Respondent argued that an agreement on the parameters that will govern a contract is not the same as entering
into the contract itself, citing the Court’s ruling in Dresser-Rand S.A. v. Bindal Agro Chem Ltd.

Judgment

The fact that the parties did not prepare a formal contract after the deal was completed orally or in writing has no bearing on the parties’ acceptance or implementation of the contract. A contract is said to be completed when the parties have agreed on the ‘terms and conditions’ of the contract, though small details can be left for them to decide later, is somewhat subject to other prerequisites as provided by S.10: without such necessary elements being decided, the contract cannot be enacted by law because it is deemed incomplete. After hearing both parties at length, the Court dismissed the Respondent’s arguments and declared that the offer made on October 15, 2007, was accepted on October 16, 2007, and that any dispute between the parties must be resolved through arbitration in line with the terms and conditions agreed to.

When a contract is signed orally or in writing, it becomes legally binding.
The Supreme Court held that all necessary elements for enforcing these types of shipment contracts, such as price, quantity, product specifications, delivery and payment terms, discharge port, shipment lots, demurrage rate, quality benchmark, applicable arbitration laws, and so on, were decided by the parties. Furthermore, minute-by-minute correspondences between the parties plainly reveal that both parties were fully aware of the contract’s different conditions and were ad idem (S.13) with respect to them.

According to S.4, communication of acceptance was complete as against VAL as soon as Trimex received confirmation of 5 shipment lots. Furthermore, the acceptance was unqualified and unconditional (S.7): “We affirm the transaction for five shipments”

The Court restated its position that one of the Act’s principal goals is to reduce the courts’ supervisory function. In reaching this conclusion, the Court noted that adding a variety of other conditions, such as seals and originals, stamps, and so on, to an arbitration agreement would amount to enhancing rather than decreasing the function of courts. The Court concluded, based on UNCITRAL Model Law, that adding a number of extra formalities not contemplated by the legislation would be improper and undesirable. The goal of the court should be to carry out the legislative intended. As a result, the Court ruled in the Petitioner’s favor and assigned a retired judge to arbitrate the case.

References

1. Trimex International Fze Limited v. Vedanta Aluminium Limited | Indian Case Law
2. Judgment Analysis Format | PDF | Arbitration | Justice (scribd.com)

Written by Vidushi Joshi student at UPES, Dehradun.

Equivalent citations

1965 AIR 491, 1964 SCR (4) 576

Petitioner

The University of Mysore and Anr

Respondent

C. D. Govinda Rao and Anr

Date of Judgement

26/08/1963

Bench

Gajendragadkar, P.B., Subbarao, K., Wanchoo, K.N., Ayyangar, N. Rajagopala, Mudholkar, J.R.

FACTS OF THE CASE

The appeal was recorded by C. D. Govinda Rao, in the Mysore High Court under Art. 226 of the Constitution. C.D. Govinda Rao needed by that appeal, that a writ of quo warranto ought to be given, to call upon Anniah Gowda to show the authority under which he had the position of a Research Reader in English in the Central College, Bangalore. It was additionally implored that a writ of mandamus is allowed calling upon the University of Mysore to choose him as the Research Reader.

There were sure capabilities to be selected as the exploration peruser. The capabilities are:

1. A First or High Second Class Master’s Degree of an Indian University of an identical the capability of a Foreign University in the subject concerned;
2. A Research Degree of a Doctorate Standard or distributed work of an elevated requirement;
3. Ordinarily, a decade (at the very least five years regardless) experience of showing post-graduate classes and directing exploration on account of Professors and no less than five years’ insight of showing degree classes and free examination on account of Readers;
4. The information on the local language Kannada is considered as an alluring qualification. Inclination will be given to up-and-comers who have had insight in educating and association of examination and have additionally accomplished progressed research work (1). According to him, the arrangement of Anniah Gowda to the post of Research Reader was unlawful notwithstanding the endorsed capabilities and that he was able to be named to that post.

Hence, he needed that the arrangement of Anniah Gowda ought to be subdued. He in this way requested a writ to guide the University to designate him in that post.

ISSUES RAISED

Whether writs of mandamus and quo warranto can be given by the court?

DISPUTES RAISED

Mr. S. K. Venkataranga Iyengar, for the respondent, battled that the arrangement of Anniah Gowda was made in repudiation of the legal principles and statutes outlined by the college. He endeavored to contend that he had alluded to the legal principles and mandates in the High Court, in any case, sadly, the equivalent had not been referenced or examined in the judgment.

The court had painstakingly viewed as the oaths documented by both the gatherings in the current procedures and it had no delay in holding that at no stage did it seem to have been encouraged by the respondent under the watchful eye of the High Court that the sickness in the arrangement of Anniah Gowda continued from the way that the legal standards and laws made by the university had been contradicted.

The testimony documented by the respondent on the side of his request just portrayed the arrangement of Anniah Gowda as being illicit, and altogether added that the said arrangement and the disappointment the University to designate the respondent, were unlawful even with the endorsed capabilities, and these capabilities in the setting without a doubt alluded to the capabilities distributed in the warning by which the significant post had been promoted.

The court reviewed the four capabilities endorsed by the warning. The last one which connected with the information on the Kannada language was discovered not to be in question and was avoided concerning thought. The primary capability was that the candidate should have a First or a high Second-Class Master’s Degree of an Indian University or a comparable capability of an unfamiliar University in the subject concerned. Anniah Gowda got 50.2 percent marks in his Master’s Degree assessment.

It was encouraged by the respondent under the steady gaze of the High Court that when 50% is the base needed for getting a second class, it would be inactive to propose that an applicant, who acquires 50.2 percent, has gotten a high Second-Class Master’s Degree, thus the respondent argued that the main condition had not been fulfilled by the Anniah Gowda. The High Court has maintained this request. As to the subsequent capability, apparently, Anniah Gowda has gotten a degree of Master of Arts of the University of Durham. The High Court has held that as to this capability, assuming the Board took the view that the Gowda fulfilled that capability, it would not be only for the Court to vary from the assessment. At the end of the day, the High Court didn’t make a finding for the respondent concerning capability No. 2.

As to the third capability, the matter seems to have been bantered finally under the steady gaze of the High Court. The proof was driven by both the gatherings and the respondent genuinely questioning the case made by both the appellants that Gowda fulfilled the trial of five years’ insight of showing Degree classes. The High Court inspected this proof and eventually arrived at the resolution that however the material cited by the appellants on this point was inadmissible, it couldn’t make a finding for the respondent. In this association, the High Court has seriously condemned the direction of Anniah Gowda to which we will allude later.

Consequently, significantly the High Court chose to subdue the arrangement of Gowda on the ground that it was plain that he didn’t fulfill the main capability. In this association, the High Court has additionally condemned the report made by the Board and has seen that the Members of the Board didn’t seem to have applied their brains to the inquiry which they were called upon to consider.

In managing the case introduced before it by the respondent, the High Court had condemned the report made by the Board and had seen that the conditions unveiled by the report made it hard for the High Court to treat the suggestions made by the specialists with the regard that they by and large merit. Sheets of Appointments are assigned by the Universities and when suggestions made by them and the arrangements following on them, are tested under the steady gaze of courts, typically the court should do whatever it takes not to obstruct the feelings communicated by the specialists. There is no charge about mala fide against the specialists who established the current Board.

The analysis made by the High Court against the report made by the Board implied that the High Court believed that the Board was in the place of a chief power, giving a leader fiat, or was behaving like a semi-legal counsel, concluding questions alluded to it for its choices. In managing objections made by residents concerning arrangements made by scholastic bodies, similar to the Universities, such a methodology would not be sensible or suitable.

Indeed, in giving the writ, the High Court has mentioned a specific observable fact that shows that the High Court applied tests that could authentically be applied on account of the writ of certiorari. In the judgment, it has been seen that the blunder for this situation is without a doubt a manifest mistake. That is a thought which is more pertinent and applicable in a system for a writ of certiorari.

The High Court ought to have considered the issue of whether the arrangement made by the Chancellor was against any legal or restricting guideline or mandate. In doing as such, the High Court ought to have displayed due respect to the assessment communicated by the Board and its proposals which the Chancellor has acted. In this association, the High Court had neglected to see one extremely critical truth that when the Board considered the cases of the individual candidates, it inspected them cautiously and arrived at the resolution that not a single one of them should have been delegated as a Professor in the University.

These proposals made by the Board show that they considered the applicable factors cautiously and eventually reached the resolution that Anniah Gowda ought to be suggested for the post of Reader. Hence, the court fulfilled that the analysis made by the High Court against the Board and its considerations isn’t legitimized.

JUDGMENT

The requests were permitted and the request passed by the High Court was saved. The writ request recorded by the respondent was excused with costs all through. It was held that there will be one bunch of hearing charges in both the requests documented by the two appellants.

CASE COMMENT

The writ of quo warranto continuing assistance in managing the cost of a legal cure by which any individual, who holds a free considerable public office or establishment or freedom, is called upon to show by what right he holds the said office, establishment or freedom, so his title to it could still up in the air, and if the finding is that the holder of the workplace has no title, he would be removed from that office by legal request.

This truly intends that at the end of the day, by the technique of quo warranto, the legal executive is provided with the ability to control the leader from arranging public office against the endorsed law. It likewise assists with shielding a resident from being denied of public office to which he has a right. These procedures likewise will quite often shield people in general from usurpers of public office, who may be permitted to proceed either with the intrigue of the
Executive or because of its indifference.

It will, accordingly, be seen that an individual needs to fulfill the court, that the work being referred to is a public office and is held by a usurper without legitimate authority before the person can adequately guarantee a writ of quo warranto. He additionally needs to demonstrate that it would unavoidably prompt the inquiry regarding whether the arrangement of the supposed usurper has been made as per law or not.

Written by Sara Agrawal student at Sinhgad Law College, Pune.

Equivalent Citation

Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1

Bench

Sanjay Kishan Kaul, Dhananjaya Y. Chandrachud, R. K. Agrawal, J. S. Khehar, S. A. Bobde, S. A. Nazeer, R. K. Agrawal, J. Chelameswar, A.M. Sapre JJ

Decided on

24th  August 2017

Relevant Act/ Section

Article 19,19(1)(a), 21 and 25

Brief Facts and Procedural History

The Government of India has launched a scheme called “Unique Identification for BPL Families.” For the initiative, a committee was also formed. The Committee suggested that a ‘Unique Identification Database’ be created for the project. The project will be divided into three phases, according to the decision. The Planning Commission of India then issued a notification on UIDAI in January 2009. (Unique Identification Authority of India). In the year 2010, the Planning Commission also approved the National Identification Authority of India Bill. The current case was filed by retired High Court Judge K.S. Puttaswamy, who is 91 years old, is against the Union of India, or the Government of India. The case was heard by a nine-judge Supreme Court bench that had been created specifically for the Constitution Bench. Following conflicting judgments from other Supreme Court benches, the special bench was constituted to assess whether the “right to privacy” was guaranteed as an independent basic right.

The case emphasized various concerns about the government’s Aadhaar program (a form of uniform biometrics-based identity card). In the near future, the government suggested that the above-mentioned plan become required for access to government services and benefits. Initially, the challenge was brought before a three-judge bench of the Supreme Court, claiming that the scheme invaded the “right to privacy” provided to Indian people by the Constitution. On account of the Union of India, the Attorney General disputed that the Indian Constitution does not give particular protections for the right to privacy. He based this on observations made at various times in the cases of M.P. Sharma vs. Satish Chandra (an eight-judge bench) and Kharak Singh vs. Uttar Pradesh (an eight-judge bench) (a five-judge bench). Following that, an eleven-judge panel determined that basic rights should not be regarded as separate, unrelated rights, upholding the dissenting opinion in the Kharak Singh case. This also acted as a precedent of following rulings by smaller benches of the Supreme Court which expressly recognized the right to privacy. Moreover, it was in this circumstance that a Constitution Bench was established, which found that a nine-judge bench should be established to assess whether the Constitution contained a fundamental right to privacy or not.

Finally, on August 24, 2017, the Supreme Court issued a landmark decision, declaring the right to privacy a Fundamental Right under Article 21 of the Indian Constitution.

Issues before the Court

• Whether the ‘right to privacy’ is a basic part of the right to life and personal liberty provided under Article 21 and also a part of the freedoms provided by Part III of the Constitution,
• And whether the judgment was taken in M P Sharma v Satish Chandra, District Magistrate, Delhi was right in the face of law?
• And was the decision taken in Kharak Singh v State of Uttar Pradesh correct in a legal sense?

The decision of the Court

On August 24, 2017, a nine-judge panel of the Supreme Court of India issued a major decision upholding the basic right to privacy guaranteed by Article 21 of India’s constitution. The Supreme Court’s historic nine-judge bench unanimously agreed that Article 21 of the Constitution secured the right to privacy as an essential aspect of the right to life and personal liberty. Privacy is a distinct and independent basic right granted by Article 21 of the Indian Constitution, according to the Supreme Court, which relied on six separate judgments. The decision’s most crucial element conveyed a broad interpretation of the right to privacy. It was clarified that the right to privacy is a broad right that covers the body and mind, including judgments, choices, information, and freedom, rather than narrow protection against physical derivation or an invasion right under Article 21. Privacy was found to be a predominant, enforceable, and multifaceted right under Part III of the Constitution. Overall, the Court overturned the judgments in M.P. Sharma and Kharak Singh because the latter found that the right to privacy was not a fundamental right guaranteed by the Constitution, and the Court found that the judgment in M.P. Sharma was legitimate because the Indian Constitution did not contain any limitations to the laws on search and seizure comparable to the Fourth Amendment in the United States Constitution. Nevertheless, the Court held that the Fourth Amendment was not a comprehensive concept of security and that the absence of a comparable assurance in the Constitution didn’t imply that India lacked a distinctive right to protection by any stretch of the imagination– and thus, the decision in M.P. Sharma was overturned. Kharak Singh’s biased perspective on close-to-home freedom was also invalidated by the Supreme Court. This viewpoint was referred to as the “storehouse” approach obtained from A.K. Gopalan by Justice D.Y. Chandrachud. The Court stated that after Maneka Gandhi, this method of seeing fundamental rights in watertight containers was abandoned.

The Court stated that after Maneka Gandhi, this method of seeing fundamental rights in watertight containers was abandoned. The Court also pointed out that the majority conclusion in Kharak Singh was internally inconsistent, as there was no legal basis for striking down domiciliary visits and police monitoring on any grounds other than privacy – a right they referred to in theory yet ruled to be unconstitutional. The Court further stated that subsequent cases maintaining the right to privacy after Kharak Singh should be viewed in light of the principles set forth in the opinion. The court also considered whether the right to life, the right to personal liberty, and the right to liberty established in Part III of the Constitution protects the right to privacy in affirmative instances. The court decided that privacy “is not an exclusive concept.” It dismissed the Attorney General’s position that the right to privacy should be ceded in exchange for the state’s welfare rights. Overall, while ruling that the right to privacy is not self-contained, the decision also outlined a legal survey standard that should be applied when the state intrudes on a person’s privacy.

It was decided that the right to privacy could be limited where an intrusion met the three-fold requirement of legality, which assumes the existence of law; need, which is defined in terms of a reliable state point; and proportionality, which ensures a reasonable relationship between the objects and the methods used to achieve them. The fourth point of this criteria was added by Justice S.K Kaul, who demanded “procedural assurances against maltreatment of such obstacles. Chelameswar, on the other hand, feels that the “overriding national interest” threshold should be applied only to privacy claims that demand “close inspection.”

The court found that the fair, just, and reasonable criteria of Article 21 should be applied to additional privacy issues and that whether or not to apply the “national priority” standard depends on the facts. The court also stressed the importance of sexual orientation in terms of privacy. It also examined the negative and positive aspects of the right to privacy, namely, that the state is not only prohibited from interfering with this right but is also required to take reasonable steps to protect personal privacy. Information privacy is part of the right to privacy, according to the ruling. Despite the fact that the court recognized the need for a data protection law, it left the burden of enacting legislation to Parliament.

References

Justice K.S.Puttaswamy (Retired). vs Union of India and Ors., 2017. | LawFoyer

Written by Vidushi Joshi student at UPES, Dehradun.

Citation of the case

AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016.

Date of the case

6 September 2018

Petitioner

Navtej Singh Johar & Ors.

Respondent(s)

Union of India & Ors.

Bench/Judges

Dipak Misra, R. F. Nariman, D. Y. Chandrachud, and Indu Malhotra.

Statutes Involved

The Constitution of India, The Indian Penal Code.

Important Sections/Articles

Art. 14, 15, 19, 21, 25 of the Constitution of India, Right to Privacy under Fundamental Rights, S. 377 of the Indian Penal Code.

INTRODUCTION

Navtej Singh Johar V/s Union of India¹ was one of the most critical cases, which changed our Indian laws and conveyed us with a superior understanding of those laws. Right to Life under Art. 21 of The Indian Constitution isn’t just with regards to allowing an individual to live, yet permitting everybody to live they need to live, in any means not harming those of others. Neither The Indian Constitution discusses the Right to Equality on a separate premise. Each living being is to partake in those freedoms with practically no segregation or imbalance.

An individual’s Natural Identity is to be treated as fundamental. What an individual is brought into the world with is normal, the same way the character an individual is brought into the world with is regular and is to be regarded and acknowledged as opposed to being scorned or peered downward on. Crumbling or deterring an individual’s character and personality would be something like pounding the upsides of Privacy, Choice, Freedom of Speech, and different Expressions. For long, the transsexual local area has been peered downward on, to which once Radhakrishnan, J. expressed, Gender character alludes to every individual’s profoundly felt inside and individual experience of orientation, which could compare with the sex relegated upon entering the world, including the individual feeling of the body which might include an openly picked, adjustment of real appearance or capacities by clinical, careful, or different means and different articulations of orientation, including dress, discourse, and peculiarities. Orientation personality, along these lines, alludes to a singular’s self-distinguishing proof as a man, lady, transsexual, or other recognized class. Numerous strict bodies have gone against the Carnal intercourse against the Order of nature and some remember it as a demonstration disparaging the protected idea of Dignity. The Navtej Singh Johar V/s Union of India was the milestone case which prompted the struck down of S. 377 of The Indian Penal Code, as it expressed – Whoever deliberately has licentious inter­course against the request for nature with any man, lady or creature, will be rebuffed with 1[imprisonment for life], or with impris­onment of one or the other depiction for a term which might stretch out to a decade, and will likewise be responsible to fine.

BACKGROUND OF THE CASE

Writ Petition (Crl) No. 76 of 2016 was petitioned for proclaiming the right to sexuality, right to sexual independence, and right to the decision of a sexual accomplice to be essential for the right to life ensured under A. 21 of the Constitution of India and to pronounce S. 377 of the Indian Penal Code to be unlawful. Mr. Arvind Datar learned senior guidance showing up for the writ applicants presented that the two-Judge Bench in Suresh Kumar Koushal and another v. Naz Foundation had been directed by friendly ethical quality in light of majoritarian discernment while the issue, in reality, should have been bantered upon in the setting of sacred ethical quality. Likewise in a Nine-Judge Bench choice in K.S. Puttaswamy and another v. Association of India and Ors., have thought that sexual direction is a fundamental part of freedoms ensured under the Constitution which are not formed on majoritarian discernment. Mr. Arvind Datar expressed that he doesn’t expect to challenge the piece of S. 377 that connects with licentious intercourse with creatures, he limits consenting demonstrations between two grown-ups. The assent between two grown-ups must be the essential pre-condition. If not, the kids would become prey, and insurance of the youngsters in all circles must be monitored and ensured.

FACTS OF THE CASE

Navtej Singh Johar, an artist alongside Sunil Mehra a columnist, a culinary specialist Ritu Dalmia, hoteliers Keshav, Aman Nath, and a Businesswoman Ayesha Kapur, all in all, documented a writ request in the Supreme Court looking for a presentation of the right to sexuality, right to sexual independence and right to the decision of a sexual accomplice to be important for the right to life ensured under A. 21 of the Constitution of India and to pronounce S. 377 of the Indian Penal Code to be unlawful, as it was impeding the privileges of the LGBT people group. It was expressed that this segment not just abused A. 21 yet in addition A. 15, 19 alongside the Right to Privacy under the Fundamental Rights in The Indian Constitution. There had likewise been a few cases in the past like the Naz Foundation v. Govt. of N.C.T. of Delhi² and Suresh Kumar Koushal v. Naz Foundation³, which were likewise kept in thought during this case.

ISSUES RAISED

1. Whether the rationale adopted in the Suresh Kaushal judgment was proper or not?
2. Whether S. 377 violates A. 14 and 15 of the constitution?
3. Whether S. 377 infringes the right to privacy under A. 21?
4. Whether S. 377 has a ‘chilling effect’ on A. 19 (1) (a) by criminalizing gender expression by the LGBT community?

CONTENTIONS OF THE PETITIONER

• The Petitioner had lamented that the individuals from the LGBT people group were denied the right to life ensured by Art. 21 of the Constitution of India.
• The S. 377 of The Indian Penal Code conflicted with the A. 14, 15 of the Indian Constitution as they, as an individual were dealt with inconsistent to other people and segregated on the premise of sex of an individual’s sexual accomplice, and they, had to not to pick an accomplice of their enjoying.
• 19 of The Indian Constitution out of totally was the most cut off, as the local area was denied to communicate their sexual personality through discourse and decision of an accomplice of their enjoying.
• Right to protection under the Fundamental Duties was being impacted as they were evaded by society on finding their specific decision of living.
• It was encouraged to the statement of the S. 377 of The Indian Penal Code, illegal and perceiving the right to sexuality, right to sexual independence, and right to the decision of the sexual accomplice to be essential for A. 21 of the Indian Constitution.

CONTENTIONS BY THE RESPONDENTS

• The Union of India, taking a nonpartisan side passed on the make a difference to the Hon’ble Court by commenting “It left the topic of the sacred legitimacy of Section 377 to the insight of the Court”. Furthermore, found out if the law set down in Suresh Kumar Koushal v. Naz Foundation, is right or not.
• Shri K. Radhakrishnan, senior guidance, for the benefit of intervenor-NGO, Trust God Ministries contended, there is no private freedom to mishandle one’s organs and that the hostile demonstrations prohibited by S. 377 are submitted by manhandling the organs. Such demonstrations, according to the intervenor, are undignified and overly critical to the protected idea of nobility and on the off chance that any infraction is caused to the idea of poise, it would add up to established off-base and sacred shamelessness.
• The people enjoying unnatural sexual demonstrations which have been made culpable under S. 377 are more helpless and defenseless against contracting HIV/AIDS, additionally, the level of commonness of AIDS in gay people is a lot more prominent than heteros, and the right to protection may not be stretched out to empower individuals to enjoy unnatural offenses and in this way contact AIDS.
• Mr. Suresh Kumar Koushal, intervenor, by a composed accommodation contended in that that the contention of the candidates that consensual demonstrations of grown-ups in private have been decriminalized in many regions of the planet and, hence, it should be decriminalized in India.
• On the occasion consenting demonstrations between two same-sex grown-ups are barred from the ambit of S. 377, then, at that point, a wedded lady would be delivered remediless under the IPC against her bi-sexual spouse and his consenting male accomplice enjoying any sexual demonstrations.
• For the benefit of Raza Academy, the intervenor, through its learned direction Mr. R.R Kishore, it was contended that homosexuality is against the nature request and S. 377 properly precludes it.

JUDGMENT

1. S. 377 of The Indian Penal Code, to the extent that it applied to the consensual sexual direct between the grown-ups in private was announced Unconstitutional.
2. The choice in the Suresh Kumar Koushal v. Naz Foundation (1) was overruled.
3. Basic privileges are accessible to the LGBT people group even though they comprise a minority.
4. S. 377 is violative of A. 14 being entirely discretionary, unclear, and has an unlawful goal.
5. S. 377 punishes an individual in light of their sexual direction and is consequently oppressive under A. 15.
6. S. 377 ignores the right to life and freedom provided by A. 21 which includes all parts of the option to live with poise, the right to protection, and the right to independence and self-assurance concerning the coziest choices of an individual.

CONCLUSION

The judgment for the situation was notable as it struck down the S. 377 of The Indian Penal Code and it allowed them to the Homosexuals and every one of the individuals from the LGBT people group to unreservedly put themselves out there and to stroll with a head high in the general public. They don’t need to fear being evaded by society and their right to security being pulverized and pronounced as hoodlums because they communicated their friendship and affections for their sexual accomplice.

This judgment was an overjoy for each individual from the LGBT people group and different Heterosexuals. The choice was valued even abroad by different NGOs and gatherings named The Human Rights Watch, in this manner acquiring global acknowledgment. Different translations were made to clarify what laws said and that they are to cling to and everybody in the general public is to be dealt with similarly.

References

1. Navtej Singh Johar vs Union Of India Ministry Of Law And … on 8 January, 2018. indiankanoon.org.[Online] https://indiankanoon.org/doc/119980704/.
2. Naz Foundation v. Govt. of NCT of Delhi. en.wikipedia.org. [Online] https://en.wikipedia.org/wiki/Naz_Foundation_v._Govt._of_NCT_of_Delhi#:~:text=Naz%20Foundatio
   n%20v.%20Govt.%20of%20NCT%20of%20Delhi,violation%20of%20fundamental%20rights%20protected%20by%20India%27s%20Constitution..
3. Suresh Kumar Koushal and another v. Naz Foundation and Others. www.desikanoon.co.in. [Online] https://www.desikanoon.co.in/2014/02/suresh-kumar-koushal-anr-v-naz.html.

Written by Sara Agrawal student at Sinhgad Law College, Pune.

CASE NUMBER

Appeal No. 273 of 1979

CITATIONS

AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145

BENCH

Y Chandrachud, A Gupta, N Untwalia, P Bhagwati, R Sarkaria

DECIDED ON

9 MAY, 1980.

This reference to the Constitution Bench raises a question in regard to the constitutional validity of the death penalty for murder provided in Section 302, Penal Code, and the sentencing procedure embodied in Sub-section (3) of Section 354 of the CrPC, 1973.

FACTS OF THE CASE

Bachan Singh had been convicted of his wife’s murder and sentenced to life in jail under Section 302 of the Indian Penal Code in the previous case. After serving his term, he was released and spent about six months with his cousin Hukam Singh and his family. Hukam Singh’s family members, including his wife and kid, questioned the appellant’s presence at his apartment.

The family went to bed after dinner on the night of the crime, July 4, 1977. When Vidya Bai (daughter) was woken by the alarm about midnight, she witnessed the appellant inflicting axe blows on the face of her sister, Veeran Bai. When she tried to stop him, the appellant struck her in the face and ear with the axe, knocking her out. Diwan Singh awoke from his rest after hearing the shriek and witnessed the appellant attack Desa Singh with the axe.

The Sessions Court later found the appellant guilty of murdering three individuals, including Hukam Singh’s son, Desa Singh, Durga Bai, and Veeran Bai (Hukam Singh’s daughters), as well as injuring Vidya Bai (Hukam Singh’s other daughter). On appeal, the High Court upheld the death sentence given by the Trial Court. In addition, both the Trial Court and the High Court ruled that Vidya Bai’s injuries were inhumane.

Bachan Singh then sought a special leave to appeal in the Supreme Court, raising the issue of whether “special reasons” exist in the facts of the case, which are required for the death penalty to be imposed under Section 354(3) of the Code of Criminal Procedure.

ISSUES RAISED

• Whether or not Section 302 of the Indian Penal Code’s provision for the death penalty for murder was unconstitutional?
• Is Article 19 relevant in establishing the validity of Section 302 of the IPC’s challenged provision?
• Is Section 302 of the IPC’s disputed limb in violation of Article 21 of the Constitution?
• Is Section 354(3) of the Criminal Procedure Code, which governs sentencing, unconstitutional on the grounds that it gives the Court unguided and unrestricted discretion and allows the death penalty to be imposed arbitrarily on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code if the answer to the preceding question is no?

DECISION OF THE COURT

The Supreme Court dismissed the constitutional objections to Sections 302 of the Indian Penal Code and 354(3) of the Criminal Procedure Code. The Court went on to say that the six essential rights protected by Article 19(1) aren’t absolute. For starters, they are subject to limitations imposed by an individual’s commitment not to exercise their rights in a way that harms or infringes on the rights of other members of society. This is founded on the maxim sic utere tuo ut alienum non laedas, which states that an individual must use their property in a way that does not infringe on another person’s legal rights.

Another question is whether the courts have unfettered discretion in inflicting the death penalty, as well as the nature and scope of the specific reasons. Section 354(3) of the CrPC defines “special reasons” as “extraordinary causes related to the serious nature of the offence.” In granting the death punishment, the Supreme Court established the theory of the “rarest of the rare circumstances.” For individuals convicted of murder, life imprisonment is the norm, with the death penalty being an exception. It would be unusual to use discretion under Section 354(3) of the CrPC, 1973. Only offences that shook society’s collective conscience would receive the death punishment. Only in the rarest of circumstances should the death penalty be used.

This is written by Dalima Pushkarna student at Dr Ram Manohar Lohiya National Law University, Lucknow.

Case number

Criminal Appeal No. 195 of 1960

Equivalent citation

AIR 1962 SC 605

Bench

Hon’ble Justice K. Subba Rao.

Date of Judgement

November 24, 1961.

Relevant Act(s)

The “Evidence Act, 1872”; the “Indian Penal Code, 1860”.

Facts of the case

K.M. Nanavati is the petitioner. He was an Indian naval Officer then. He was married in the year 1949, to Sylvia in England. They also had three children and had shifted to Bombay, after residing in a number of places. Prem Bhagwan Ahuja was a business who also resided in Bombay along with his sister. He had a business in automobiles. Nanavatis were introduced to the Ahujas through some common friends, the Agniks. Prem Ahuja was not married. The petitioner used to stay out of the station most of the time due to his profession. In his absence, Ahuja and Sylvia became friends, and soon she fell in love with him. This resulted in an illicit relationship between both of them. After a certain period of time, Sylvia began doubting Prem and felt that he would not get married to her. Hence, in 1959, on April 27th, Sylvia confessed to Nanavati about her love for Prem Ahuja. Nanavati was infuriated. He went to his naval base to take a semi-automatic pistol along with six cartridges, on a false pretext. He then arrived at Ahuja’s place, went to his bedroom, and asked him if he is ready to marry Sylvia and take responsibility for the children. Prem denied, as a result of which Nanavati shot him thrice and he died on spot. After this whole course of events, he surrendered himself to the police. As a result, he got arrested. He was committed to the Sessions under the charges of “Section 302” as well as “Section 304” of the “Indian Penal Code”. He was declared not guilty then by the jury by 8:1. The sessions judge disagreed with the jury’s decision, and under “Section 307” of the CrPC submitted the case in the Bombay High Court.

Issues

1. Whether the Sessions Judge did not have jurisdiction to exercise “Section 307” of the CrPC?
2. Whether the act committed can be considered as an act done in a “heated moment”?
3. Was there any kind of misdirection?

Arguments

Arguments made by the petitioner:
The counsel first mentioned that Nanavati wanted to kill himself. Sylvia calmed him down. Also, it was claimed that Nanavati had gone to Ahuja’s place just to ask him if he would get married to Sylvia or not. While taking the pistol and cartridges from the base, Nanavati told the ship authorities that since he would travel at night, he needed the pistol for his own safety; and he carried it in an envelope. In reality, he was going to shoot himself and not Ahuja.
When Nanavati arrived at Ahuja’s flat, he asked him if he would marry Sylvia, to which Ahuja denied blatantly. A heated argument took place, and Nanavati had just threatened to thrash Ahuja. He then kept the pistol on a table. Ahuja tried to grab the pistol but failed. In the meantime, the argument escalated between two men. Accidentally shots got fired in the scuffle and killed Prem Ahuja. Hence, Nanavati did not kill him intentionally, and it was not premeditated at all. Even if any crime was committed by Nanavati, it would not be murder and could amount to just culpable homicide.

Arguments made by the respondent:
The counsel for the respondent first mentioned that Ahuja had just come out of the washroom and was still in a towel when Nanavati entered. Therefore, there was no brawl between the two, since the towel did not fall off. Sylvia mentioned that they went to the movies, and Nanavati had dropped them. This shows that he was in a calm mind and was not enraged then. Thus, there was no chance of any “sudden provocation”. It was not an accident, because Ahuja’s sister was in the other room and Nanavati did not bother to inform her about the mishap. Instead, he just left.

Judgement

Judgement of the Bombay High Court:
The case came to the Bombay High Court since the Sessions Judge did not agree to the jury’s decision in the Sessions court where Nanavati was declared not guilty. The case was heard by Hon’ble Justice Jaishanker Manilal Shelat, and Hon’ble Justice Naik. They decided that Nanavati should be convicted under “Section 302” of the “Indian Penal Code”, and gave the sentence of life imprisonment. The court mentioned that it was unreasonable on the jury’s part in the Sessions Court to declare Nanavati not guilty. No case was made to reduce the intensity of the event, i.e., from murder to culpable homicide.

Judgement of the Supreme Court:
The Supreme Court concluded that the concept of “suddenness” was not present in this case. This is because when Sylvia confessed to her illicit relationship with Nanavati, it was serious and grave, but Prem Ahuja was not present on the scene. According to the Hon’ble Supreme Court, since around three hours gap was present between the confession of the wife and the incident, Nanavati had enough time to cool down. Hence, the Apex Court decided in favour of the Bombay High Court’s decision of sentencing the petitioner to life imprisonment. The Court concluded that it was not an act of “grave and sudden provocation”. The Court decided that it was the judge’s duty to instruct the jury as to the legal ramifications. As per the court, the jury was misled due to the judge, which led to an unreasonable judgement by the jury. It was also held by the Court that the Sessions Judge did have jurisdiction to exercise “Section 307” of the CrPC.

Conclusion

This is an important case where the topic of “grave and sudden provocation” was discussed. This case also attracted huge media attention then. The whole nation was shocked by such a “crime of passion”. This case showed that no matter what position an individual holds in society, they would be punished by the law if they commit something unlawful. Another important part of this case was the jury trials. The jury trials were soon discontinued by the Government after this case, due to chances of such misled judgements.

This article is written by Aaratrika Bal student at National Law University Odisha.

Case number

Writ Petition (C) No. 1031 of 2019.

Equivalent citation

AIR 2020 SC 1308.

Bench

Hon’ble Chief Justice of India N. V. Ramana, Hon’ble Justice R. Subhash Reddy, Hon’ble Justice B. R. Gavai.

Date of Judgement

January 10, 2020.

Relevant Act(s)

“Constitution of India”, “The Code of Criminal Procedure (Amendment) Act, 2005”, “The Indian Telegraph Act, 1885”

Facts of the case

The issue came in 2019 when the Government of Jammu and Kashmir issued a “Security Advisory” and directed the tourists (including numerous “Amarnath yatris”) to return in order to ensure safety. Adding to this, orders were issued to shut down educational institutions. Finally, on 4th August, internet connection, phone networks, and landline connections were cut off too. On August 5th, the President decided to impose “Constitutional Order 272”. As per this order, the provisions of the Indian Constitution would be applied to Jammu and Kashmir. Simultaneously, Section 144 of the CrPC was imposed in order to maintain peace in the valley. Due to such restrictions that were imposed, movements of various journalists were hampered a lot as well. As an outcome of this, the “Kashmir Times Srinagar Edition” could not get distributed on 5th August. The petitioner is the executive editor of the “Kashmir Times” newspaper. The petitioner has also claimed that she had not been able to publish the newspaper since the next day, i.e., 6th August 2019. Under Article 32 of the Indian Constitution, the petitioner had approached the Hon’ble Supreme Court, for issuance of a writ for setting aside the orders imposed by the respondents. She claimed that the Internet is an important factor in today’s world. She also claimed for lesser restrictions in the movement of journalists.

Issues

• Whether the Government can claim exemption from producing all orders passed under CrPC Sec 144 and others under suspension rules.
• Whether “freedom of speech and expression” and “freedom to practice any profession, or to carry out any trade” over cyberspace can be considered a fragment of the fundamental rights under “Part III of the Constitution”.
• Was it valid on the Government’s part to restrict internet facilities and to impose restrictions under “Section 144 of the CrPC”?
• Was the petitioner’s “freedom of the press” violated due to the restrictions?

Arguments

Arguments made by the petitioner:
The first argument put forward was that the petitioner could not do her job and get the newspaper published due to the imposed restrictions (on press) from 5th August 2019. Since internet facilities were stopped, the print media got hampered badly. Hence, people’s livelihood got affected due to the restrictions (violation of Article 19(1)(g) of the Indian Constitution). The right to speech was violated, due to the cutting down of internet facilities. It was argued that the restrictions made were not at all reasonable or proportional in any sense. The counsel contended that all the restrictions were levied on the premise of the apprehension of some danger to the regulations and law. Also, there is a difference between “public order” and “law and order”. The restrictions imposed and the measures taken were in order to protect “law and order”. Also, these restrictions did not even seem to be temporary, because it had already been a long time since they were functioning. It was argued that the state should have undertaken a less strict alternative in the beginning. Also, the restricting movement was applied over the entire state, and not in specific regions. The petitioners contended that such a restriction all over the state was unnecessary.

Arguments made by the respondent:
The primary argument made by the respondent was that these restrictions were absolutely necessary in order to fight terrorism in the state. They also claimed that general freedom of expression and speech cannot be applied to the Internet, because there are a lot of dangers on this platform. It was argued that it is not possible to shut down specific websites, hence, a total shutdown was the only alternative. They also claimed that the situation was getting exaggerated.

Judgement

The Court held that the “freedom of speech and expression” and “freedom to practise any profession or to carry out any trade” on cyberspace are protected under Articles 19(1)(a) and 19(1)(g) respectively. It was held that any restrictions on the abovementioned rights, would have to be reasonable and in compliance with Articles 19(2) and 19(6) of the Constitution. Hence a “proportionality test” was ordered by the Apex Court. If the restriction to internet access is not found to be proportional then it would cease to exist. It was held that: “the government cannot contend any exception for providing any order before the court which is passed under Section 144 of the CrPC.” No order was issued by the court to provide remedies to those who were already affected, but a lot of principles were laid down for future suspensions. Apart from these, the court dismissed the plea where the petitioner claimed that freedom of the press was violated due to the restrictions, due to lack of evidence.

Conclusion

Internet is an important part of our daily life in today’s world. We are very much dependent on the internet for a lot of things including trade and business. It can be concluded that Internet has become so important that it is being included in Part III of the Indian Constitution. This judgement is very significant because the primary aim of the case was to judge the legality of the restriction of internet facilities. The Apex Court had also introduced a number of principles that would prevent undue misuse of the powers provided to the Government, especially in such cases.

This article is written by Aaratrika Bal student at National Law University Odisha.

About Gautam Buddha University,

Gautam Buddha University, established by the Uttar Pradesh Act (9) of 2002, commenced its first academic session at its 511 acres lush green campus at Greater Noida in August 2008. The academic programmes offered by the University are recognized by the University Grants Commission of India and various other Statutory Bodies, Councils, whichever are applicable in individual cases.

About School of Law, Justice and Governance

Gautam Buddha University-which has been legislatively conceived as “a center of excellence”- has started its ambitious multidisciplinary academic programme with the establishment of its School of Law, Justice & Governance in 2011. It is a university for people who have the ideas that make a difference in the world and who love to bring change. The School envisions to foster advancement of learning, teaching and research in the fields of law, justice and governance. The five-year integrated BA LLB programme has been running since July 2012.

About CELMAR

Centre for Environmental Law Management and Research-(CELMAR), has been set up in the School of Law Justice & Governance under the patronage of the Vice-Chancellor, Gautam Buddha University. The CELMAR was inaugurated by Dr. Prabhat Kumar, IAS, Vice-Chancellor, GBU dated 2nd October 5, 2018.

I. NATIONAL ESSAY WRITING COMPETITION

The School of Law, Justice, and Governance, Gautam Buddha University, Greater Noida in collaboration with CELMAR and LAC is pleased to announce the National Essay Writing Competition. The competition encourages critical thinking, which is the process of reflecting on a problem and coming to a resolution. It encourages students to evaluate various arguments in order to develop stronger perspectives.

ELIGIBILITY

• The competition is open to all undergraduate and postgraduate students from any recognized university across India.
• One author can only submit one entry for the competition, all subsequent entries will be disqualified by default.
• Incomplete and plagiarized submissions would also result in immediate disqualification.
• No restriction on the number of entries from any college or university.
• Only Individual Participation is allowed

TOPICS (Choose any one of the following)

• 75 years of India’s Independence: The Way Forward
• The Indian Legal System has a dearth of Female Judges
• The Uttar Pradesh Population Control Bill: A Boon or Bane

SUBMISSION GUIDELINES

The participants must mail their entries to gbucelmar@gmail.com as a word document only.

• The subject of the submission email shall be ‘Submission: Gautam Buddha University Essay Writing Competition.
• The Participants may use References/Bibliography/ Endnotes/Footnotes. For footnotes and endnotes, all the participants shall follow the 20th Bluebook method of citation.
• The essay must be written in Hindi or English only.
• The word limit for the competition is 2000-2500 words (excluding
• references/bibliography/endnotes/footnotes).
• Co-Authorship is not allowed under any circumstances.
• Plagiarism of more than 15% of any sort shall result in immediate disqualification.
• All submissions must be typed and adhere to the following guidelines:
  1. Body of the Text:
     • Font Type – Times New Roman
     • Font Size – 12
     • Line Spacing – 1.5
  2. Sub-Headings:
     • Font Type – Times New Roman
     • Font Size – 14
  3. Title/Main heading:
     • Font Type – Times New Roman
     • Font Size – 16
  4. Foot Notes:
     • Font Type – Times New Roman
     • Font Size – 10
     • Single 1 line spacing
• All the essays shall contain the Cover Page with the following details:
  • Name of the Student
  • Course of Study
  • Contact Details
  • University/College

CRITERIA FOR JUDGEMENT

• All the entries will be judged on the following parameters:
  • Adherence to the theme and word limit.
  • Originality of ideas
  • Language and Grammar
  • Application of Laws
  • Articulation of Ideas
• The decision of the judges would be final and binding.

CASH PRIZES

The submissions of all will be critically evaluated by the judges and respective authorities on the criteria mentioned above, out of which the best 3 submissions will be rewarded with the cash prizes as mentioned below.
Note: Also e- certificate for participation will be provided to all the participants.
• Winner – Rs. 2000
• Runner up – Rs. 1500
• 1st runner up – Rs. 1000

IMPORTANT DATES

• Last Date for the Submission of Essays:10 November 2021
• Last Date for the registration: 05 November 2021

II. CASE PROBLEM ANALYSIS

The event of “Problem Analysis” is being organized by the School of Law, Justice, and Governance, CELMAR and LAC of Gautam Buddha University, Greater Noida with the theme of the proposition based on ‘Environmental Law and Constitutional Law’.
Noise Pollution is one of the major concerns of scientists nowadays. Its effect on human health and welfare is recently considered as an important and vital issue which encourages scientists and interested agencies all over the world, such as World Health Organisation (WHO), to conduct more researches concerning the assessment of its levels and harmful effects.
The competition deals with the similar aspect of problems arising due to noise pollution attached with a proposition mentioned below which is needed to be reviewed, analyzed in order to find out cost-effective and innovative solutions for the management of environmental issues dealt in the proposition along with the touch of Constitutional laws and Environmental laws. The event aims to spread public awareness among the people about the rising concern of
Environment problems and gives a platform for providing an effective solution for the same.

Format

• LANGUAGE
  All submissions need to be in English only.
• ELIGIBILITY
  All students, scholars, and others from any program, college, or course are eligible for this
  competition.
• TEXT
  1. Main Text :
     • Font Type – Times New Roman
     • Font Size – 12
     • Line Spacing – 1.5
  2. Sub-Headings:
     • Font Type – Times New Roman
     • Font Size – 14
  3. Title/Main heading:
     • Font Type – Times New Roman
     • Font Size – 16
  4. Foot Notes:
     • Font Type – Times New Roman
     • Font Size – 10Single 1 line spacing
  5. Numbering of the pages should be systematic.

NOTE: Competitors should strictly adhere to the given format.

MARKING CRITERIA

The Competitors will be marked on a scale on 50 marks as per the following:

1. Identification of Legal Principles – 10 marks
2. Clarity of the concept – 10 marks
3. Use of language and representation – 10 marks
4. Recognition of the Environmental and other issues – 10 marks
5. Effective Solutions/ suggestions – 10 marks

SUBMISSION:

1. Last Date for the registration: 05 November 2021
2. Last date of submission: 10 November 2021
3. The Competitors are required to mail their submissions to ‘ Gbucelmar@gmail.com
4. The file submission must be done in pdf format only, with the file name as “PA_name” eg. PA_rohan
5. The competitors are required to register at first instance in order to be a part of the event, absence of which the submission will not be accepted. The registration link is given below.

CASH PRIZES:

1. The submissions of all will be critically evaluated by the judges and respective authorities on the
2. criteria mentioned above, out of which the best 3 submissions will be rewarded with the cash
3. prizes as mentioned below.
4. Note: Also e- certificate for participation will be provided to all the participants.
5. • Winner – Rs. 2000
6. • Runner up – Rs. 1500
7. • 1st runner up – Rs. 1000

III. VIDEOGRAPHY COMPETITION

For further details and details regarding videography competition please click on the link below

https://drive.google.com/file/d/1p34vuLue6gK1YIrNDpACGIwwVXhxt2S2/view

PAYMENT DETAILS

Payment mode can be NEFT/RTGS/GOOGLE PLAY/PHONEPE/PAYTM/UPI
TRANSFER/BHIM in favor of GAUTAM BUDDHA UNIVERSITY
BANK NAME – Punjab National Bank BANK BRANCH – GBU, Greater Noida
ACCOUNT NO. – 6660000100000025 IFSC CODE – PUNB0666000
NOTE: Please attach the screenshot and transaction ID in the registration form.
Registration Fee: Rs 100 for each competition

Registration Link

https://docs.google.com/forms/d/e/1FAIpQLSfTAgpnHuuQvRsd9mOPgYol4jcxLOwt0xFj0
LXI9FSiWuPeww/viewform

Contact Details

Dr. Prakash Chandra Dilare – 9971639727
Mr. Milind Saraswat- 9582221184
Mr. Yatharth – 9391775120
Ms. Mahin- 9997265842
Ms. Abhilasha – 7668266636

WhatsApp Group:

https://chat.whatsapp.com/GRdQLsHRwmB7QVRmS3WK

Telegram:

https://t.me/lexpeeps

LinkedIn:

https://www.linkedin.com/company/lexpeeps-in-lexpeeps-pvt-ltd