Introduction

The Bench of Bombay High Court, Nagpur has said last month, that the zip of the pants of the accused being open at the relevant time of the incident or holding the hand of a minor is not to be considered as sexual assault as it is defined under Section 7 of the Protection of Children from Sexual Offences (POCSO) Act (see also: Libnus v. State of Maharashtra).
Justice Pushpa Gandewali on January 15 delivered this judgment, four days after her controversial judgment on “skin-to-skin” contact being a determining factor for sexual assault under the POCSO Act. This judgment was passed on an appeal filed by a 50-year-old man challenging a sessions court’s order convicting him for sexually assaulting and molesting a five-year-old girl.

The complaint was lodged by the mother of the girl accusing, that she saw the accused whose pant’s zip was opened and was holding the hand of her daughter. She further testified that her daughter informed her that the appellant/accused removed his penis from the pant and asked her to come to the bed for sleeping.

Section 7 of POCSO Act

Section 7 of POCSO Act states that: “Sexual assault – Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault”.

Court’s Ruling

The Court stated that the definition of ‘sexual assault’ is something that is ‘ a physical contact with sexual intention without penetration’. But the court noted that there was no such actual touching of the private parts of the body happenings in this case. The court explains the words “any other act” from the definition as should be interpreted Ejusdem Generis with the beginning portion of the definition (Ejusdem generis is a principle of statutory interpretation which says that meaning of general words which follow a specific word is limited by the meaning of the special words).
So according to the Court holding hands of a minor or unzipping of pants can not be considered as sexual assault and does not fit in its definition. According to POCSO, ‘sexual assault’, when committed against a child aged less than 12 years, it will become ‘aggravated sexual assault’ under Section 9, which is punishable under Section 10.
The Court has however considered the offense of Sexual Harassment under Section 354A(1)(i), which deals with “physical contact and advances involving unwelcome and explicit sexual overtures”, is attracted in the case.
So, therefore the court held that 5 months of imprisonment that the accused already has gone through is enough punishment to suffice.
The court states that “Considering the nature of the act, which could be established by the prosecution and considering the punishment provided for the aforesaid crimes, in the opinion of this Court, the imprisonment which he has already undergone would serve the purpose”.

Reported by – Komal Dhore

Introduction:

A recent judgment of the Bombay High Court has taken social media by storm, with netizens raging over the regressive outlook of the court. The case, Satish v State of Maharashtra, revolved around the fact that a 12-year girl was assaulted and groped, yet the Bombay High Court held that “in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault.” This ruling came even after precedents from various other High Courts (in the case of Jagar Singh v State of Himachal Pradesh), including the Bombay High Court ruling that Sexual Assault under Section 7 of POCSO Act, need not be skin to skin, and even the act of touching a minor with sexual intent in their private area would attract the penalty under Section 7.

Section 7 and the outrage

This case saw the relevancy of the POCSO being put into question. It has been stated that skin-to-skin touch is necessary for constituting an offence under Section 7 of the POCSO Act. In the present scenario, groping of child’s breast has not been considered an offence under Section 7.
Section 7 constitutes that, touching of vagina, breasts or any such private area with “sexual intent” is punishable. However, in this case a new concept of skin-to-skin touch has emerged.
It is also to be noted that, the offence has been held punishable under Section 354 of the Indian Penal Code, that is, outraging the modesty of a woman. However, questions are now being raised as to whether it is correct to negate the entire spirit of the POCSO Act.
Questions such as, if the POCSO Act was enacted to safeguard the rights of children specifically, why is the act is not being relied upon in such situations? Section 7 of POCSO provides for rigorous punishment and gives preference to the rights of children. However, keeping reliance on IPC is making this act non-reliable for such cases. Both IPC and POCSO have their own validities and importance. Overlapping of the laws in ways that degrade the other shall not be fruitful for anyone.
Due to extreme public outrage, and the above mentioned valid arguments the Supreme Court on Sunday stayed the Bombay High Court’s order.

Conclusion/Personal Views:

It is important to create a threat in the minds of criminals to make the laws stringent. The relevancy of the laws has to be maintained by the courts, rather than dragging other laws in between. Section 6 and 7 of POCSO are alone relevant and compatible of punishing offenders in scenarios like the present one. It will be awaited to see the further decision of the Supreme Court because the decision here will make a huge difference for future references. This provision is about the safety of children, it cannot be neglected the way it has been done, in this judgement.

Reported by – Sejal Makkad

The Supreme Court has stayed the implementation of the three controversial Farm laws due to the serious disagreements between farmers and the government. Supreme court on the same issue ordered to set up a 4 member committee that will be assigned to hold talks with farmers and propose a report within two months.

A three-judge bench headed by Chief Justice SA Bobde while hearing petitions challenging the law said that “Tell us whether you will put the laws on hold or else we will do it. What’s the prestige issue here?” They further said that “Negotiations between the farmers’ bodies and the government have not yet yielded any results so far.”

The statement came from the Supreme Court for the Central government stats that it was “extremely disappointed” with the negotiation process.

The committee included Bhupinder Singh Mann, National President of Bhartiya Kisan Union; Dr Parmod Kumar Joshi, Director for South Asia, International Food Policy Research Institute; Ashok Gulati, Agricultural Economist and Former Chairman of the Commission for Agricultural Costs and Prices; and Anil Ghanwat, President of Shetkari Sanghatana.

Out of which Bhupinder Mann ex-MP has recused himself from the four-member committee constituted by the Honorable Supreme Court. The reason he states is that he feels “it is better if he does not meddle in this matter because of the present situation and since the committee has been formed, he feels targeted”.

The court shows concern on urgently solving the matter and has also stayed the implementation of farm laws over which thousands of farmers are holding an agitation on the borders of Delhi since November 26. 

“These are matters of life and death. We are concerned with laws. We are concerned with the lives and property of people affected by the agitation. We are trying to solve the problem in the best way. One of the powers we have is to suspend the legislation,” Chief Justice SA Bobde said.

Reported by – Aishwarya Daftari

The Central Bank had in March 2020 declared a moratorium on the repayment of loan installments, to provide borrowers relief during the COVID-19 pandemic.

A couple of petitions have been filed in the Apex Court of the country to initiate contempt of court proceedings against Reserve Bank of India’s Governor – Shaktikanta Das and others over alleged violation of court orders in the case of loan moratorium.

The Apex Court had in September 2020 order said that until further instructions, banks cannot declare accounts as non-performing assets (NPAs) if they default after the loan moratorium ended on August 31, 2020.

The Petitioners – Gorakh Pandurang Nawade, Pritam Sengupta, Suryakant Prabhakar Pawar, and Shanti Jewellers – had filed their respective pleas through Advocate Vishal Tiwari and Advocate-on-Record (AoR) Abhigya Kushwah, before the Supreme Court in connection with loan moratorium case.

The Petitioners claim that the RBI and banks declared their accounts as NPAs, violating the SC order, according to an ANI report.

The Petitioners have now sought compensation due to the damages caused by declaring their accounts as NPAs. The Petitioners have also sought a 90-day grace period before declaring accounts as NPAs.

This act of contempt of the Respondents has shaken up the confidence of the public and broken the trust of the borrowers, as during this pandemic many of the borrowers where going through an economically rough time.

The stay order was operating as the life-saving drug to the Petitioners but the contemptuous act of the Respondent has brought a major setback to their businesses and its survival has become critical, the Petitioners claimed.

Reported by – Komal Dhore

WhatsApp, has come up with a new update in it’s Terms of Policy which changes the privacy policy of the app. The update makes a distinction between private and business messages. The update has raised several eyes amongst the people with the privacy of the app being the prime issue, however the change in the policy clearly states that the conversation within friends and family is safe whereas it is clarified in certain business set-ups the conversation can be read by Facebook and even be used for certain marketing purposes. Nevertheless, people are still looking for alternatives and many are now shifting to Signal – another messaging app.

As per the new Terms of Service, WhatsApp may use the information to “operate, provide, improve, understand, customize, support and market” its services and offerings to users. WhatsApp has reiterated that personal conversations do not fall under this category.
It even states neither WhatsApp nor Facebook can see or hear an individual’s private conversations. Personal messages are protected by end-to-end encryption and will be continued to be protected in the same manner. It is claimed that WhatsApp cannot even see the location that one has shared.

WhatsApp has also clarified that some large business might need to use secure hosting services from Facebook to manage WhatsApp chats with their customers.
Due to the backlash by the app’s users, the update has been delayed till 8th February 2021.

Recently, Delhi High Court’s Hon’ble Judge Prathiba M. Singh has recused herself from hearing a petition challenging this very update in the privacy policy of WhatsApp, on the grounds that it violates Fundamental Rights enshrined under Part III of the Constitution of India.
She took an objection on basis of the e-mail send by WhatsApp stating she should not hear this matter on which Hon’ble Justice Prathiba M. Singh replied “I was in any case, not going to hear it”. It is understood that the email pointed out that Justice Singh had appeared in a connected matter when she was a lawyer. Though WhatsApp later withdrew the email unconditionally, Justice Singh chose not to hear the matter.

The counsels appearing for WhatsApp are Senior Advocates Kapil Sibal and Mukul Rohatgi said that e-mail was being withdrawn unconditionally.
Advocate Chaitanya Rohilla filed a petition stating that the new privacy policy introduced by WhatsApp violates the right that is guaranteed by the Constitution that is Right to Privacy. As the privacy policy gives always the online activities of the individual without any government authority or supervision.
The petition said that “WhatsApp has made a mockery out of our fundamental Right to Privacy while discharging a public function in India, besides jeopardizing the National Security of the country by sharing, transmitting and storing the users data in some another country and the data in turn will be govern by laws of foreigner country”.
The case was finally sent to a single bench on 18th January 2021.

Reported by – Komal Dhore

The Bar Council of India (BCI) is all set to scrap the Master Degree Course in Law of one-year duration introduced in India in 2013.

The BCI Notification

As per the notification issued by BCI on 2nd January 2021, Legal Education (Post Graduate, Doctoral, Executive, Vocational, Clinical and other Continuing Education) Rules, 2020 will increase the duration of post-graduation (LLM) from 1 year to 2 years.

As per the rule , it is mandatory to have LLB/BA LLB as qualification to take admission in any Master’s degree in any specialized branch of LAW (LLM) offered in the Open System to any graduate, such as Business Law or Human Right, or International Trade Law. The rule made it mandatory to have a 3 year or 5 year LLB for taking admission to LLM course.

“Bar Council of India (either directly or through its Trust) may annually conduct a Post Graduate Common Entrance Test in Law (PGCETL) for admission in Master Degree course in Law in all Universities and until the PGCETL is introduced, the present system followed by respective Universities shall be followed. Once the BCI introduces PGCETL it shall be mandatory to admit the students from the merit list of the Test,” the Rule states.

The Rule further states that, An LLM degree obtained from a Foreign University, without an equivalent LLB degree shall not be equal to an Indian LLM degree.
A one-year LLM obtained from any foreign University is not equivalent to an Indian LLM degree. But if the degree is from a highly accredited Foreign University, this may entitle the person concerned to be appointed as a visiting professor at an Indian University. They should be there for at least a one-year LLM degree with one year of teaching experience as a Visiting Faculty/internee faculty/clinical faculty to get their LLM degree in India.

Besides LLM, the Rule also prescribe the ration of  student-teacher not exceeding 1:10 and maximum student strength of 20 in each branch of the specialization subject to a maximum of 50 students overall in the LLM program of the institution.

The Petition

This change by the BCI has recently been challenged in the Supreme Court by Tamanna Chandan Chachalani, a law student. In her petition, Ms Chachalani apart from questioning the rationale behind such a drastic change, claims that the change will adversely affect her future career and liberty of choosing quality education.

The petition also challenges the power of the BCI to make such a change, as the same can only be done by the University Grants Commission (UGC), and the BCI’s action is ultra vires of Section 7 (1) (h) of the Advocates Act, 1961 that mandates the BCI to promote legal education in India and to maintain it’s standards only in with the consultation with the Universities of India.

Reported by – Aishwarya Daftari | Edited by – Dakshita Dubey

The Supreme Court recently announced its verdict on the Central Vista case. It was a transferred case from the Delhi High Court. The case dealt with several petitions filed against the Central Vista Project initiated by the Central Government. The petitioners including Rajeev Suri had opposed this project as it involved the change in land use of the lush green area surrounding the Rashtrapati Bhawan and the Vijay Chowk.

The central government and the Delhi Development Authority are given the power to modify the Master Plan of Delhi that was notified in 2007 to guide the direction of development of the National Capital Territory until 2021. This was modified in March 2020 to include the Central Vista project. Sections of land are assigned for specific purposes such as recreation, government, public and semi-public, which were modified to accommodate the Central Vista project. The petitioners argued that change in land use was not really a “modification” and also raised concerns on the manner in which the permissions were granted.

The Centre had intended to build a new parliament building and build spaces to accommodate the ministries that have been currently located at several different places. The project which is to be built at the 3- kilometre from the Rashtrapati Bhawan stretch was announced earlier in September 2019 and was to be constructed completely by 2022 August. It is going to be a triangular building with the Central Secretariat which will be completed by 2024. A Gujarat based architectural consultancy firm named HCP designs had won the bid for consultancy for the redevelopment project.

The judgment saw a split of 2:1 with Justices AM Khanwilkar and Dinesh Maheshwari delivered their majority opinion with Justice Sanjeev Khanna dissenting with the judgment. The delivered majority judgment comprised of 432 pages out of which 100 pages dealt with the questions of rule of law, judicial review power of executive with respect to the Central Vista Case.

For the complete case analysis, visit – http://lexpeeps.in/rajeev-suri-v-delhi-development-authority-ors/

Title of the case: Rajeev Suri v Delhi Development Authority & Ors.

Respondent: Delhi Development Authority and Union of India

Petitioner: Rajeev Suri

Equivalent Citation:  MANU/SC/0001/2021

Date of Judgement: 5.01.2021

Bench: Justice AM Khanwilkar, Justice Dinesh Maheshwari and Justice Sanjiv Khanna

Brief Facts:

The Supreme Court recently announced its verdict on the Central Vista case in the Centre’s favor on 5th January 2021. It was a transferred case from the Delhi High Court. The case dealt with several petitions filed against the Central Vista Project initiated by the Central Government. The petitioners including Rajeev Suri had opposed this project as it involved the change in land use of the lush green area surrounding the Rashtrapati Bhawan and the Vijay Chowk.

The central government and the Delhi Development Authority are given the power to modify the Master Plan of Delhi that was notified in 2007 to guide the direction of development of the National Capital Territory until 2021. This was modified in March 2020 to include the Central Vista project. Sections of land are assigned for specific purposes such as recreation, government, public and semi-public, which were modified to accommodate the Central Vista project. The petitioners argued that change in land use was not really a “modification” and also raised concerns on the manner in which the permissions were granted.

The Centre had intended to build a new parliament building and build spaces to accommodate the ministries that have been currently located at several different places. The project which is to be built at the 3- kilometre from the Rashtrapati Bhawan stretch was announced earlier in September 2019 and was to be constructed completely by 2022 August. It is going to be a triangular building with the Central Secretariat which will be completed by 2024.

A Gujarat based architectural consultancy firm named HCP designs had won the bid for consultancy for the redevelopment project.

On a prior hearing, the court had given permission to the Central Government to go ahead and lay the foundation stone for the project when the latter ensured that no construction work is going to take place there.

Also, the division bench of the Delhi Court on 28^th February had stayed an order of its single judge bench requiring the DDA to inform it before making any changes to the master plan.

The petitions heard by the apex court were majorly on the following issues:

1. The legitimacy of the permissions given to the project inclusive of the change of land use.
2. The validity of the grant of a no- objection certificate by the Central Vista Committee and the clearances of environmental protection for building a new structure there. (this was a major concern as it allegedly violates the right to life under article 21 for preventing people to access the green areas)
3. The order issued by the Delhi High Court regarding the DDA not informing before making changes to the master plan for allowing the project.

The Judgment

The judgment saw a split of 2:1 with Justices AM Khanwilkar and Dinesh Maheshwari delivered their majority opinion with Justice Sanjeev Khanna dissenting with the judgment. The delivered majority judgment comprised of 432 pages out of which 100 pages dealt with the questions of rule of law, judicial review power of executive with respect to the Central Vista Case.

The Court had adjudicated on the question of Rule of law along with Judicial Review and had held that a thin line of distinction must be drawn between the action of the executive and its impact on the individual’s action and the action of the executive which is comprised of administrative functions with no effect on liberty of an individual.

The court further went on to say that the petitioner had failed to show a case of an alleged deprivation of life and personal liberty of an individual. In order to establish their case before the Hon’ble Court, a cause- effect relationship had to be proved. Further, the court viewing the statutory processes is going to be unethical with the procedure established by law.

On the question of heightened judicial review, the court held that it won’t be justified on its part to exercise its power of judicial review on a matter where already a decision has been taken by the executive. It held that a publicly elected government is entitled to create errors as long as the constitutional principles are not violated. The court also adjudicated upon the question of participatory democracy and public participation. It held that a fine balance exists in our constitution between public participation and effective functioning of administration. Also, public participation is for inviting constructive suggestions from all the parties likely to be affected.

Moreover, on the question of change in land use, the court held that it was it was legal I nature as section 11A(2) of the DDA bestows the power with the Central Government to change the framework of the master plan for the development of the city in Public interest. The court finally concluded by saying that they are acknowledged as the repositories of public trust and faith but they cannot compel the government to function in a particular way without any legal basis.

The Dissent

Another important aspect of this case was the dissent shown by Justice Sanjeev Khanna. Although, in his judgment of 179 pages he mentioned that he agreed on the conclusions of the notice inviting bid, award of consultancy and the Urban Arts Commission’s order with the majority judgment announced by Justice AM Khanwilkar, he expressed his dissent on 7 major issues. They were respectively:

1. The invalidity of environmental clearances
2. The premeditated nature of the permission granted by the Central Vista Committee
3. The notice of development plan was not adequate
4. The project proposed the complete redevelopment of the Central Vista
5. The Central Govt. failed to take suggestions from the public
6. The public didn’t have adequate time at its disposal
7. There was no approval taken from the Heritage Conservation Committee

Analysis by – Tanuj Sharma

JUNE 19th 2020

It takes me immense pleasure to invite all the esteemed members of the Legal Fraternity on behalf of lexpeeps to write blogs with us which we will publish in our “guest blog section”. After the huge success of the “our blogs” section which was dedicated to law students of different law schools and publishing more than 250 well-researched articles,

We are now starting with a section where the Lawyers of the Nation and the Academician connected with the Legal Fraternity will get an opportunity to put up their views more loudly and in front of a larger number of audience.

With Love and Respect

Madhur Rathaur

Founder, Director, CEO

Queries-lexpeeps.in@gmail.com

Mr. Govind Chaturvedi is an experienced lawyer with a demonstrated history of working in the law practice industry. Mr. Govind Chaturvedi is currently working with L.S. Davar & Co. He is skilled in Intellectual Property rights, Corporate Law, Commercial Litigation, Transactional and Legal Writing. 

Q. How has been your journey as a Lawyer?

A: Overall today where I stand and looking back, I can say that the Legal Profession has its extreme lows and its immense highs and I have experienced both. There are various stages that if you are a first-generation lawyer need to go through, the first being that you need to understand how a lawyer thinks, which is a different form of analysing facts and giving a conclusion. You learn to think in terms of most things of as arguments and also the evidence you will need to back it up.

 I have had days in Court wherein I have had great orders and exceeded my own expectation and have also been part of judgements wherein we did not get exactly what we wanted but were able to do more than justice to the matter. Hence, it is important to do your research and be very well versed with your facts as you never know which one fact might change the entire course of the case. However, looking back I do realise that all the highs and lows play an important part in helping you grow both as a lawyer and as a person.       

Q: Students in Law School are more inclined towards getting good grades. What’s your take on it? Do grades have any significant impact on the career?

A: Well, I truly believe that there is a huge gap between what is taught in law school and what the profession of law actually is. When someone graduates from law school it actually feels like they are still novices and all the internships and good grade do not account for much. I was never a good performer in School or Law School and the only academics I can boost about is getting 99 percentile in Common Entrance Test. I performed pretty average in Law school and secured a first division, which I was very happy about, but I use to come home and read my law books every day for 2-3 hours, not because of anything else but because I enjoyed it. 

However, to answer your question good grades do not translate into success in the career or have an impact, I personally do not think so. Rather, I would advice students to do internships and to learn as much as they can about everything around them and have a sound general knowledge and also have a strong base of knowledge about other industries as well, as when you are doing matters this knowledge is very helpful. Law School is when you have the time, once you are working you need devote your entire day, week after week to learning law and its procedures. So, while maintaining a decent percentage is alright, good grades do not guarantee you any success in the career as that depends completely on your intelligence, ability to think on your feet and ability to deal with situations.

Q: What are the skills required to succeed in the Legal Profession?

A: Well, there are too many and completely depends on what you want to do in law but for litigation, I would state that the following are important: 

1. Confidence, you should be able to state an argument so convincingly that you can get people to agree with you 
2. Patience and perseverance, not all matters or situations will turn out as you like so be patient and keep persevering forward
3. Research skill, you should be able to pull up case law to support your case
4. Listening skills, it is a skill that many of us do not have and the problem is that it is very essential that you are able to understand the pulse of a person; whether it’s your client, judge or the Opposite counsel
5. Client care; as a client are essential for any lawyer we should be able to deal with them effectively and with politeness
6. Accountability; if something does go wrong in the matter you should be to take responsibility and realise wherein you went wrong and correct it for the future.
7. Creativity, this I feel is one of the most important skills for any lawyer as you will have limited resources on your side and you need to be able to work with them.  

Additionally, I owe a lot of my thinking patterns to my elder brother: Rahul Chaturvedi who at a young age inculcated in me the critical thinking and logical arguments, he also inclined me to read different varieties of books at an early age and got me into the habit of writing which enabled me to put my thoughts in written and verbal form more effectively, which I can say helped me in law immensely. I personally was a vociferous reader and use to love reading books I found fascinating, when I did step into the law profession I was very well versed with a lot of key facts about other industries, so being well-read in general will also get you further than most other things. So, if nothing else I would suggest students to read a book monthly if not weekly to start with and keep increasing the number of books continuously.

Q: Non-NLU students often face internship rejection from big law firms? What’s your advice to them?

A: To be honest, yes NLU students do get more preference, however, there is no need to get disheartened as I personally believe interning with big law firms does not teach you much.

Rather, Non-NLU students should focus on developing skill sets and creating a good portfolio, I would rather suggest students to intern in small firms and with lawyers, wherein you will be entrusted with more tasks and can learn more. 

However, if students still want to intern with big firms for the experience of it, I would suggest to the non-NLU students that if they have certain extra skill-sets on their CV, they have a better chance of being taken for an internship, which could be an online certification course or a project they have undertaken, like I ran an NGO in Law School and use to organise blood donation camps, wherein we had created a tripartite agreement between our organisation, the blood donating place and the Red Cross. If nothing else it helped me understand the world of NGO’s and how they worked and how to also develop people skills, we also did other drives like donation drives but our main aim was Blood Donation Camps.

These activities also ensure that students can utilise their time in Law School well by actually working on their own development. Moreover, I truly believe today’s lawyers are blessed as in this day and age of the internet we have access to all types of information so students in law school invest this time well and use it wisely. Once, a Non-NLU student will have these additional attributes on their CV it will make them stand out and could help in securing the internships, I also suggest reaching out to the Alumni working in these big firms as they can be the most helpful, as I tend to get students who reach out to me on Linkedin pretty often and I am more than happy to guide them or at least secure an internship with the Firm for them I am working at.

Q: How hard it is for a young professional to set up a career in the field?

A: The brilliant thing about law is that all you need is your brain and the knowledge and no other resource, it is for the lawyer to want a fancy office or a brand they want to grow. But, honestly. you can even be sitting underneath a tree and client will come to you if you are good at what you do. However, there is an initial struggle I would say for 5 years at the very least for generating clients and creating a stable client base, what I see is that a lot of young lawyers want to set up their firm without working under a senior lawyer, I suggest against that, as you need work with someone senior to be able to have the guidance. If they do not want to work with a senior lawyer, find someone who will let you do your own matters simultaneously. I also believe that the bond between a senior and a junior lawyer is very sacred and every lawyer should have that experience to evolve both professionally and personally,

Q: You have recently done a webinar regarding social media laws; How much do you think social media is legally backed in the country?

A: Well, the problem that most social media platforms that face in India is that they want to be in the ambit of an intermediary, in order to avoid liability if anything goes wrong. What this does is that they cannot interfere with what is being uploaded or cannot screen it, as if they were to do that they would become an active participant and could be held liable in a court of law. This point has been elaborated in a number of cases by the Delhi High Court. So, right now the only laws that do exist are for intermediaries and since the Social media platforms are immune from them due to their own non-interference they do tend to escape liability. There are no laws in India for Social media per se specifically as of now, but social media platforms are largely regulated by established laws like defamation, cybercrimes etc.

The Government is in the process of changing the same and they recently on the 24^th   of December, 2018, released the Draft Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018 (“the Draft Rules”) to amend the existing Intermediaries Guidelines. These Draft Rules sought to introduce requirements on intermediaries like – tracing out of originator of information for assistance to law enforcement, deployment of automated tools for proactive filtering of unlawful content, a takedown of illegal content within 24-hours, and mandatory incorporation of companies having 5 million + users in India (among other things). 

However, the same has been met with criticism as the said rules tend to go against a lot of established norms like “Right to privacy” enshrined in KS Puttaswamy v. UOI due to the traceability requirement under Rule 3(5), “Pro-active filtering of content” which would move the Intermediary liability from a passive entity to an active participant as discussed earlier, Appointment of Nodal Officer under rule 3(7)  moreover as the Social media platforms do have their own grievance officers.

However, the flip side is also that the investigation agencies usually tend to hit a dead end while investigating cases for cyber crimes as most Social Media platforms tend to not adhere to Indian laws. So, whereas there is a need for these laws as none exist right now, there is a very fine balance that needs to be made as tilting to either side could have disastrous consequences for the public in either case. 

Q: Do find any major loophole in social media laws of the country? And how that can be addressed.

A: I think like I said no particular law exists for these entities and certain modifications can be made to existing precedents like non-filtering of content tends to lead to spreading of fake news that as we have seen can lead to deaths, obscene material being shared and so on. So, the non-interference by the Social media platforms can be modified for certain particular things i.e. fake news, revenge porn etc as they have done the damage before they are even caught or reported. 

Moreover, these social media platforms have an unregulated policy of closing down accounts without even giving the reason to the user. This is especially bad for Social Media Influencers who tend to many times loose followers to the tune of 1 lakh to 10 lakh followers and start afresh, this can be addressed by the Social Media Platforms providing clear guidelines and also sharing the data for closing down of the account as Influencers tend to utilise this for monetary gains and have a right to know.

Q: On a concluding note, what should be your advice to the new generation lawyers.

A: Law is a profession that will always be relevant. Moreover, there are enough fields in law i.e. land laws, matrimonial laws, Intellectual property rights etc that it has the bandwidth to accommodate anyone. However, I see a lot of juniors jumping straight into a particular field and saying they want to specialise in it. I would suggest to them that they should not restrict themselves so early in their career, I started with practising family law, consumer law and income tax law and use to argue before the Ghaziabad District courts, Consumer forums and Income Tax Appellate Tribunal then moved on to doing Commercial litigation and argued extensively in the Supreme Court, Lower courts and the High Court and worked on matters ranging from Government work orders, Arbitration to 138 Negotiable Instruments act matters. I was also involved in a software infringement case, Domain name dispute and a family dispute over a trademark, when I developed an interest in Intellectual property rights then moved on to be an expert in Trademark Prosecution and Opposition and thereafter now having gained an interest in Social media laws am working towards that, all my previous experiences have helped in the following fields as I have grown. So, I tell young lawyers to give themselves the chance to practise and also explore other options in law.