Tag: #supremecourtcase

Case Number

Special Reference No. 1 of 1964

Case Citation

AIR 1965 All 349, 1965 CriLJ 170

Bench

J Takru, G Mathur

Decided on

10 March 1965

Relevant Act/Section/Article

Art. 211, Art. 22, Art. 194, Art. 21, Art. 143

Introduction

The Kesavananda Bharti case is well-known and frequently discussed, yet few people are aware that the Kesavananda Bharti case was assigned to a bench with less than half the judges who decided the Keshav Singh case. It required the combined efforts of numerous justices of the Supreme Court, High Court judges, MPs and MLAs, and ultimately the Prime Minister and the Chief Justice of India to take on this case. One of the most remarkable examples from Nehru’s presidency is this one. This case is of utmost significance to the Indian judicial system, but it has never been talked about.¹

Facts: Who was Keshav Singh?

In the Uttar Pradesh city of Gorakhpur, Keshav Singh was born. He belonged to the socialist party or served in municipal politics. The Congress Party was in power during the time. When a leaflet titled “exposing the shortcomings of Narsingh Narain Pandey” was published, it implied that Pandey, a legislator for the Congress Party, was dishonest. Narsingh Pandey started working on a case against Keshav Singh as soon as he learned about the booklet or leaflet. Pandey and other MLAs from the Congress party disagreed with the leaflet. They claimed that the leaflet violated their right to privacy. When Singh was asked to confirm his name on this issue by the district of the legislative assembly in Lucknow, he remained silent regarding the accusations made against him. When queries were directed at him, he stood with his back to the speaker and stayed silent. On February 19, 1964, Keshav Singh was supposed to go before the assembly and accept a reprimand, but he didn’t because he didn’t have the money to go (according to his excuse). The assembly decided that whatever that couldn’t be achieved amicably would have to be taken by force after Keshav Singh’s defense. On March 14, Singh was apprehended and brought before the assembly. If it weren’t for the decision dismissing Keshav Singh and his attorney’s appeal, the litigation and the issue might have been over at that point.

When the speaker of the legislature keeps asking questions, Singh chooses the challenging course. After then, things started to get worse, and the speaker called Congress MLAs to the assembly. Singh had written to the speaker to protest his conviction, attest to the veracity of the charges made in the leaflet, and denounce the authoritarian nature of the arrest warrant. By entering the home, Chief Minister Sucheta Kripalani imposed seven-day house detention on Singh after the MLAs had enough consensus on the same. The legislature approved a resolution in the format suggested by the chief minister, and Singh was then taken to prison for his one-week sentence. One day before Singh was scheduled to be released after serving his sentence, a lawyer on his behalf submitted a petition to the Allahabad High Court asking for his immediate release. The petition claimed that Singh’s imprisonment was unlawful because the assembly lacked the right to imprison him and because he was not allowed to defend himself after being brought before the court.

Issues

1. Whether or not the Legislative Assembly has no criminal jurisdiction and no authority to punish anyone for its contempt;
2. Whether or not the Legislative Assembly has such authority, the petitioner’s detention is illegal and violates Article 22(2) of the Constitution.
3. Whether or not the Legislative Assembly’s action in punishing the petitioner was malicious.

Observations and Decisions of the Court

The Supreme Court concurred, pointing out that the resolution of the assembly violated the independence of the judiciary. Article 211 was an essential component of the system that allowed courts to make difficult decisions, even if they were wrong, without worrying about political retaliation, therefore it could not be reduced to a meaningless assertion. The Supreme Court ruled that Keshav Singh can be granted bail while awaiting a decision and that the high court has the authority to consider his appeal. The parliament lacked the legal right to order Solomon’s arrest or to ask Justices Beg and Sehgal for an explanation. If the consent of the justice addresses the audience, the drama may compromise the independence of the judiciary. On the other hand, if they show up and make a strong defense, the assembly might be forced to stop acting to avoid being accused of harassing well-meaning judges. The judges have the option of filing a petition with the supreme court, but there was no guarantee that the judges would share the same outcome as the justices who heard the plea. They petitioned the Allahabad High Court, arguing that the assembly’s actions were against Article 211 of the Constitution, which forbids state legislatures from discussing the conduct of any high court or Supreme Court judge. While the case was still pending in court, Justices Beg and Sehgal requested a hold on the resolution against them.²

The court referred to English law, which states that any detention is prima facie unlawful, and the act is justified by the person who ordered the detention. Further, the court held that the appeal was flawed and could only succeed if the petitioner established his or her claims. Prima facie, the detention cannot be considered illegal, and the petitioner must prove that the duty was illegal, the court must decide whether the obligation is lawful. The court does not understand why the defendant should not be allowed to argue that the bond, warrant, and commitments used to detain the petitioner were valid. In any event, the court is entitled to the assistance of the defendant’s attorneys in resolving the issues raised in the case.

Legislature has not yet passed legislation regulating the powers, privileges, and immunities of the House, but the power to do so is granted by Entry 39 of List II of Schedule VII of the Constitution. The powers and privileges of the Legislative Assembly must therefore be determined according to Article 194(3). There is no express or implied prohibition in the Constitution against the Legislative Assembly exercising the privilege enjoyed by the House of Commons to commit for its contempt. The possession of power or privilege The argument is that the House of Commons had a similar penal power and that the inclusion of a separate provision in Article 193 regarding the penal power indicates that the Constitution’s authors did not intend to include any penal power under Article 194 (3). In other words, the argument is that Article 193 encompasses all penal powers conferred on the Legislative Assembly and that no penal power can be assumed as a result of the provisions of Article 194(3). The court didn’t agree with this assertion. Article 193 merely limits the power and privilege of state legislatures to punish people who sit or vote in the legislature without authority, in our opinion. This Article cannot be read as exhaustive of all the penal powers of the State Legislatures to commit for contempt is a judicial power is, in our opinion, not a compelling reason for denying the power to the Legislative Assembly because our Constitution does not provide for a rigid separation of powers. Since, even according to the petitioner’s learned counsel, Article 193 gives the Legislative Assembly the power to punish a person who sits or votes as a member of the Assembly in certain circumstances, which is also like judicial power, it cannot be said that the idea of the Assembly exercising judicial power was abhorrent to the Constitution-makers.

The HC rejected Keshav Singh’s argument that the facts discovered against the petitioner by Parliament did not constitute contempt of Parliament. The HC also ruled that the defendants did not violate Article 21 or natural rights because the Legislatures had established procedures for investigating allegations of violation of privilege. The HC also said the county jail warden is within the jurisdiction to execute the chairman’s warrant. Noting that the provisions of Part III of the Constitution do not apply where Article 194(3) of the Constitution applies, the HC notes that the fundamental rights of Part III are governed by Article 194(3) of the Constitution. The HC also ruled that the applicant was deprived of his liberties following the legal procedure set out in the last part of Article 194(3). Petitioners also argued that Congress’ decision to arrest him was motivated by political animosity and hatred. The Court couldn’t prove it for that reason alone. The Supreme Court dismissed the Keshab Singh case and refused to infer parliamentary malice. In dismissing Keshav Singh’s motion, the High Court said only the House could decide whether there was contempt of the House of Commons in a particular circumstance and that the court had not addressed the question of legality.

While the case is about violations of fundamental rights and constitutional crises, the focus is on symbolic gestures of solidarity by judicial authorities and how they collectively resolve disputes while they exist. It is about upholding the dignity and basic rights of citizens. enshrined in the Indian Constitution. This case highlights the importance of the separation of powers as one of the key building blocks of the constitution and how each can control excesses and respond appropriately. This decision ensured a proper balance of power between the two peers.

The Supreme Court also ruled that Articles 105(3) and 194 should not be used to limit the rights of citizens and lawyers to bring cases before the court. The Supreme Court has ruled that the House of Commons, as the highest court of record in the country, not Congress, can only try someone for contempt with an unwarranted general arrest warrant. The principles of Fundamental Rights and Judicial Review, especially Articles 32 and 226, not only empower but also impose obligations on the Supreme Court and the Supreme Court to exercise fundamental rights. The Indian Parliament and the State Legislatures are entitled to such privileges. As a result, courts may view the House’s implied warrant as a statutory order to punish someone for contempt. The SC not only wanted to recognize that the House has the power to punish insults and violations of privilege. The independence of the judiciary is seriously undermined if the House asserts the right to question the actions of judges. Not only that, the house has the power to punish disrespect and violation of privilege. Before a decision is made, the Privileges Committee will conduct an investigation and allow the complainant to comment.

Conclusion

If it weren’t for several defects and errors in judgment, the conflicts between the high court and the Uttar Pradesh assembly would never have escalated to the extent that they did. It was unusual for Singh’s attorney to enter a plea with only one day left in Singh’s sentence. The judge would have promptly revoked Singh’s bail if the government’s attorney had arrived at the high court at 3 p.m. with a report on the case. The fact that this case shows how readily constitutional institutions can turn against one another and how tough situations are best resolved by statesmanship rather than brinksmanship makes it noteworthy in and of itself.

References

1. Keshav Singh vs Speaker, Legislative Assembly AIR 1965 All 349, 1965 CriLJ 170
2. Atharva Kulshrestha, Keshav Singh – Case commentary,aishwaryasandeep.com(Last Accessed: 09 July, 2022) https://aishwaryasandeep.com/2021/06/07/keshav-singh-case-commentary/

This blog is written by Jay Kumar Gupta, a student of the School of Law, NMIMS Bangalore, currently in the second-year of BBA LL.B.(Hons.).

Case No.

Civil Appeal No. 1013-1015 of 1987

Equivalent Citation

• (1997) 4 JT 124
• (1997) 3 SCALE 1
• (1997) 2 SCR 1086
• (1997) 4 Supreme 388
• (1997) 4 SCC 606

Bench

• Hon’ble Justice K. Ramaswamy
• Hon’ble Justice K. Venkataswami
• Hon’ble Justice G. B. Pattanaik

Decided On

14/03/1997

Relevant Acts

Constitution of India, 1950 – Article 14, Article 15, Article 16, Article 25, Article 26. Uttar Pradesh Sri Kashi Vishwanatha Temple Act, 1983– Section 16, Section 17, Section 18, Section 19, Section 20, Section 20(1), Section 20(2), Section 21, Section 22, Section 22(2), Section 23(2), Section 24(2), Section 25(8), Section 3, Section 4, Section 4(2), Section 5, Section 6, Section 6(1).

Brief Facts and Procedural History

The Supreme Court has received an appeal of the Allahabad High Court’s decision in this case. The two Honorable Justices of the High Court disagreed on whether the Kashi Vishwanath Temple is a place of worship, but they agreed that Parliament has the authority to pass laws governing its administration. The Pujaris commanded pilgrimages, the precincts were filthy, and Lord Shiva’s stolen jewellery was allowed into the premises. A committee was established with the recommendation that the government should seize control of the temple. Accordingly, two ordinances were promulgated one after the other until the Parliament enacted the Act for the management of the temple by the Government.

Issues before the Court

The Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983, which was to manage the temple of Lord Vishwanath, also known as Sri Adi Visheshwara of Kashi, has been questioned for its constitutionality.

The following issues were also up for decision by the Supreme Court:

• Whether Sri Kashi Vishwanath Temple is a denominational temple.
• Do followers of Lord Vishwanath have the constitutionally protected fundamental right to manage their religious affairs and manage the Temple’s assets following the law as guaranteed by Articles 25 and 26 of the Constitution?
• How important and integral are the traditional practices of the religion and religious practice protected by Articles 25 and 26?

Decision

1. Since it does not affect any of the rights of the religious denominations protected by Articles 25 and 26 of the Constitution of India, 1950, the Act passed to manage the temple is constitutional.
2. A denominational temple cannot be found at the Kashi Vishwanath temple. Shaivites are Hindus, and as such, they belong to no particular denomination. They are a part of the religion known as Hinduism. The Act protects the right to participate in ceremonies, rituals, or acts of worship that adhere to long-standing customs. 
3. Although Section 22 is regulated and extends the right to the means of subsistence under Article 21, the rights of those who work as archakas are unaffected.
4. The right to enter the temple, interact with Lord Sri Vishwanath’s Linga, and perform worship there is extended to everyone who practices Hinduism. The Act mandates that the State protect all manifestations of Hindu Lord Vishwanath worship, regardless of whether they are carried out following Hindu Sastras, regional custom, or temple-specific usage.  It is not restricted to a particular sect or denomination.  Shaiva worshipers are Hindus in general and do not belong to any particular denominational sect or group.
5. State regulation may apply to all secular activities that are connected to religion but do not directly relate to it or constitute an essential component of it. However, what constitutes an essential component of religion can be ascertained primarily from that religion’s doctrines following its tenets, historical context, change in evolved process, etc. The concept of essentiality in and of itself does not matter. When determining whether a particular religious matter, practice, or belief is an essential element of the religion, one consideration to make is whether the community as a whole sees the matter or practice as essential.

Analysis

The term “denomination” is extensively covered in this instance. A group that exists as a sect, group, class, or kind and has unique characteristics that set it apart from other groups is referred to as a denomination. The Constitution Bench had to decide on the precise definition of the term “denomination” in The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. It was decided, by the definition provided in the Oxford Dictionary, that the word “denomination” refers to a group of people or a class who are united under the same name as a religious group or body and who are known by a distinctive name. Even though Hinduism has many well-known denominations, not all of these groups are considered to be part of the denomination as a whole.

Every court ruling regarding a temple’s religious affiliation turns on the followers of that religion’s central doctrine. The denomination is not developed in a single day. The rituals will undoubtedly resemble Hindu religious rituals in general. However, that in and of itself is not sufficient to contest the status of a religious denomination. One of the twelve Jyotirlingas is Kashi Vishwanath. Jyotirlingas are worshipped following a predetermined set of rituals.  The temple’s followers provide endowments for such rituals by making donations. The pujaris are now considered to be a class that is a religious denomination for purposes of protection under Articles 25 and 26. Article 14 extracts class legislation. This class shall be accorded equal treatment under Article 14 for rights under Articles 25 and 26. 

The contested Act only affects secular activities; it does not affect religious freedom. The provisions of the Act make it abundantly clear what the purpose of the legislation is. It can only help to enhance the property’s management and upkeep. The Board will have the right to take possession of all real estate, including both movable and immovable property, money, valuables, jewellery, records, documents, tangible objects, and other assets that belong to or are a part of the Temple and its endowments under the terms of Section 13.

In State of Rajasthan and Others vs. Shri Sajjanlal Panjawat and Others¹, it was determined, following the ruling in the Durgah Committee of Ajmer case², that a religious denomination’s right to purchase property is distinct from its right to conduct its own business regarding religion. The former can be controlled by laws that the legislature can lawfully pass, whereas the latter is a fundamental right that cannot be taken away by the legislature.

The management of the endowments and property of the Temple shall be vested in the Board of trust for the deity of Sri Kashi Vishwanath temple. There is no controversy surrounding the selection of unofficial members. It is the appointment of the ex-official member of the board as the member in question. This amounts to the government having direct control over temple affairs. Non-Hindus cannot be appointed as board members, according to Section 3. While section 6 (1) calls for the ex-officio member to be appointed and to be of any religion.  But if ex-officio members are not Hindus, section 6 (3) allows for the appointment of the next available Hindu.

The term “Hindu” is currently undefined. According to the Supreme Court of India, a Hindu may or may not be someone who practices temple worship or professes a religion that originated in India.³ Sikhs, Buddhists, and Jain are all considered Hindus even though they don’t necessarily practice all the same rituals and worship as temple devotees. Hindus are guaranteed the right to enter the temple regardless of their religious affiliation under Article 25(2)(b). Can someone who doesn’t believe in the temple be given to the management of the temple?  Secondly, the non-Hindu official will authorize the Hindu official as a member of the board. Whether a non-Hindu will approve a Hindu’s appointment as a representative? The Act’s single goal is to administer the Temple more effectively and properly. Regarding effective management administration, there is no disagreement. It is only intended to usurp authority for the temple’s management. There are people on the board. These individuals need to be free from governmental control.

It has been decided that the Act protects the practice of Hindu religious doctrines, traditions, and usages.  However, the secular administration of the religious matters in the Temple is a secular component. The legislative branch has the power to impose restrictions on and make interferences with the efficient management of such resources. The Temple is not their property, even though Mahant, Panda, and Archaka are in charge. Simply put, the Act gave the Board control over the Pandas. On the designated day, only the pandas’ management rights were terminated and transferred to the Board for better and more suitable management. Neither does it belong to the State nor was it bought for that purpose. To put it another way, the Board has assumed control over the Lord Sri Viswanath Temple’s management now that the Pandas/Mahant are no longer in charge of it. It cannot be argued that this management change results in the property’s ownership rights being acquired or lost.

Hereditary individuals were in charge of running the temple. In the hands of the appellants, the management could still be carried out properly under the Act. There was no need for the appointment of the ex-officials to the board for the management of the temple. The court determined that managing the temple’s endowments and property, as well as other temple business, is a secular activity and is not protected by the religious freedoms guaranteed by Articles 25 and 26. Because of this, anyone, Hindu or otherwise, can control such activities. The Act only gives Hindus the chance to serve on the board that oversees the temple’s endowments and property and is considered a secular endeavour. Ex-official non-Hindu members who have every right to oversee secular activity are being mistreated.  Because if an activity, is secular, then every citizen of the country shall be eligible to be appointed without any discrimination. If an activity is religious, then it should not be interfered with by the government.

Conclusion

The Temple was managed by the descendants of the Mahant. The Act was enacted only for the excellent management of the temple since there was mismanagement by the descendants. Once the Act is established, it must make provisions for the committee’s creation and hand over management of the temple to the pujaris while making significant provisions for the punishment if mismanagement occurs again.

The case involved an appeal regarding the observance of the religious denomination’s fundamental rights, but it ultimately came down to ownership rights of the property and endowments. The court’s decision thus lies where religious and secular activity is distinguished. To keep balancing on this thin line, either the Act shall be amended to include the non-Hindus for maintaining the secular activities or the court shall include the management of the endowments and property of the temple as religious activity.

References

1. State of Rajasthan and Others vs. Shri Sajjanlal Panjawat and others, AIR 1993 SC 706.
2. The Durgah Committee, Ajmer and Another vs. Syed Hussain Ali and Others, AIR 1961 SC 1402.
3. M.P. Gopalakrishnan Nair And Another vs. State Of Kerala And Others, (2005) 11 SCC 45.

This article is written by Somnath Sharma, a law graduate.

CASE NUMBER

Appeal case filed in Calcutta High Court against the order of acquittal passed by Session Court of Midnapore in trial no 18 of March, 1980.

EQUIVALENT CITATIONS

1984 CriLJ 1535

BENCH

B. Chakrabarthi, J. Chaudhri

DECIDED ON

16 June, 1983

RELEVANT SECTION/ ACT

Indian Penal Code, 1860

Section 90 of the Indian Penal Code states that a consent is not a consent if given by the person under fear of misconception and injury or consent of a person who is of an unsound mind or intoxication unable to understand the nature and consequence of which he has given consent or consent of child unless contrary appears from context if the consent is given by the person who is under twelve years of age.

Section 376 of the Indian Penal Code states the punishment of rape offence except in sub-clause (2) any person proved to commit rape shall be punished with imprisonment that may not be less than seven years but for life or for a term that extends to ten years and also liable with fine unless the women raped was his own wife and is not under twelve years of age, in which he shall be punished with the imprisonment of term extended to two years or with fine or with both. Only in the special case of judgment, the imprisonment would be less than seven years.

FACTS OF THE CASE

It is the case where the de facto complaint is filed against the order of the acquittal passed by the Additional Sessions Judge acquitting the accused charged with section 376 of the Indian Penal Code.

In August 1978, the complainant filed a police report saying that the accused opposite party No. 2, a teacher at the nearby village school, used to visit her home and one day while the complainant’s parents were away from the house, told her he loved her and that he wanted to marry her. The complainant requested that the marriage be consummated. The person is accused of promising to do so and that he would personally secure her parents’ approval. Relying on this promise, she began living with the accused. This cohabitation lasted for a couple of months, during which time the accused would frequently drop by her home at odd hours and occasionally spend the night with her. She eventually became pregnant, and when she requested that the marriage take place as soon as possible, the accused suggested having the child aborted in exchange for agreeing to marry the complaint after the Panchayat elections. The accused eventually abandoned the commitment and ceased coming to the complainant’s house because she had refused to have an abortion. Debra P.S. Case No. 20 was started based on this accusation. The accused asserted his innocence and said that the accusation was brought against him by a political competitor in an effort to extort money from him; the accuser was a woman of easy virtue.

At the trial stage, it was to be seen whether the age of the consent was there and whether the consent was fraudulently obtained by section 90 of the Penal Code. The judge observed that even when there is a whole false promise is given yet the accused is not liable for the rape offence as the consent of intercourse is not given based on the misconception of fact. There is no concept of fake marriage. The accused did not come under the provision of section 376 of Indian Penal Code so the accused was acquitted. The petitioner has filed a revisional application and obtained the rule

ISSUE

1. Whether the girl was below the age of giving consent or not?
2. Whether the consent was obtained fraudulently or using any force or coercion and was hit by section 90 of the Indian Penal Code?

JUDGMENT

During the trial, two questions were asked about the age of the girl; whether the girl was below the age of consent for intercourse or not; and whether there was any fraud in obtaining the consent of the girl or whether the consent of the girl was acquired by the use of any force or coercion. Firstly, on the question of the age of the girl to give consent for this sexual intercourse, it was clear from the trial that the girl was over 16 years old at the time of the commission of the offence by the accused, as claimed by the accused. Regarding the other issue, whether the complainant’s alleged consent fell under the scope of Section 90 of the Penal Code, the learned Judge made the following observation: Given the circumstances of the case, even if it is assumed that a wholly false promise was made, the accused could not be held accountable for the crime of rape because the accused’s consent to the alleged intercourse was not given under a “misconception of fact” as defined by Section 90 of the Penal Code.

His exact finding is “In terms of the Code, a false promise is not a fact. If the accused had ravished the girl while pretending to be the girl’s husband or in a false marriage, the situation might have been different.” The learned Judge concluded that the act done by the accused did not fall under the purview of the Penal Code and, as a result, cleared him of the offence under Section 376 of the IPC. The failure to maintain the promise of marriage does not come under the misconception of fact under section 90 of the Indian Penal Code. In order to come up with the meaning of misconception, there must be proper evidence. This matter would be held differently if there is a belief made that they are already married. If a fully grown girl consents for sexual relationship and the sexual relationship continues until she becomes pregnant it is not an act induced in section 90 of the Penal Code that is the misconception of fact.  The revision application failed.

This article is written by Sree Lekshmi B J; third-year law student of Sastra University, Thanjavur.

INTRODUCTION

In India, the online gaming market has exploded in recent years, raising concerns about its legality and the need for regulation. The legality of numerous games, including Rummy, online poker, and fantasy games like Dream 11, has been in question. Moreover, playing real-money games comes with a lot of psychological and financial risks. Numerous states and courts have made vain attempts to control the gaming industry. Understanding and creating appropriate regulations is crucial to establishing some order in the gaming industry.

Large Indian gaming enterprises now face a hefty financial burden because there is no unified national gambling regulation. One of India’s fastest-growing businesses would get a great boost from the creation of a harmonious national gaming industry with clear actionable guidelines. 

On April 1, 2022, the Online Gambling (Regulation) Bill, 2022 (the “Bill”) was introduced in the Lok Sabha to create an efficient regulatory framework for the online gaming business to stop fraud and abuse. The Bill proposes the establishment of a regulatory body to oversee the online gaming business, acknowledging the impacts of online gaming’s addictive qualities and the sector’s significant national influence.

ASPECTS OF THE ACT

With the help of the Bill, an Online Gaming Commission (referred to as “the Commission”) will be created, and a licensing system will be put in place that would require licenses from the Commission to provide and run gaming enterprises in India. According to the Bill, it is now illegal to sell and run gaming companies without a license. There is also a bond requirement. Anyone found to have participated in gaming on an unlicensed website will also be subject to legal repercussions under the Bill.

The Commission will have the authority to keep an eye on the operation of websites that offer online gaming and to take action to stop illegal online gaming. Additionally, the Commission will create rules and regulations governing the license and permit requirements, authorization for players to use gaming websites, requirements for providing gaming services, terms for player credit facilities, fines or penalties, and any other matter it may deem appropriate.

The Bill’s highlights

Any game played on an electronic device, such as a personal computer, a mobile phone, a tablet, or another device, is considered “online gaming” under the Bill. It is clear that the Bill seeks to regulate all games played on these electronic devices because the term does not distinguish between “game of skill” and “game of chance.”

The bill calls for the establishment of an oversight body called the Online Gaming Commission (OGC), which will have five members appointed by the central government and include at least one expert in each of the fields of law, cyber technology, and law enforcement. The OGC will have the authority to, among other things, supervise the operations of online gaming websites, produce periodic or one-time reports on related subjects, recommend appropriate steps to control and stop illegal online gaming, grant, suspend, and revoke licenses for such websites, and set fees for license applications and renewals of such websites.

Playing online games without a website and a non-transferable, non-assignable license would be prohibited under the proposed legislation. Without the appropriate license, operating an online gaming server or website is punishable by up to three years in prison and a fine. Six years will pass before the license expires.

If the licensee violates any of the license’s terms or Bill’s provisions, the license that is proposed to be issued under the Bill may be suspended or revoked. The Bill does not, however, apply to anyone who offers backend services in India, such as hosting and upkeep for any international gaming website based outside of India.

QUESTIONS ABOUT THE BILL

Although the Bill seeks to regulate online gaming in India through numerous checks and balances, it currently suffers from several drawbacks:

1. The difference between “games of skill” and “games of chance” is absent from the Bill. Furthermore, it is unclear from the Bill if its rules exclusively apply to for-real-money games or also apply to games played for free.
2. Although this Bill intends to be the primary piece of law controlling gaming in India, it will eventually be subject to court review because, according to the Indian Constitution, neither gaming nor gambling are federal topics and may only be regulated by state governments.
3. The conflict between the present licensing system and the state gaming laws of Meghalaya, Nagaland, and Sikkim is not addressed by the Bill.
4. The Know Your Customer (KYC) standards, customer complaint procedures, advertising and marketing regulations, user data protection, responsible gambling rules, and other issues have not been addressed by the bill.

Games of chance versus games of skill

The Constitution’s seventh schedule, List II (state list), section 34, is titled “Betting and Gambling.” the states alone have the authority to enact laws governing “games of chance.” Contrary to “games of chance,” “games of skill” are protected by Article 19 (1) (g) of the constitution.

Games of skill are not considered gambling under the gambling regulations of several states. There are several uncertainties when attempting to distinguish between a “game of chance” and a “game of skill.” In the absence of legislation defining a “game of skill,” courts have occasionally established definitions for the term.

RMDC v. State of Bombay and KR Lakshmanan v. State of Tamil Nadu

The supreme court ruled in RMDC v. State of Bombay and KR Lakshmanan v. State of Tamil Nadu that a game of skill is one in which the element of talent outweighs the element of chance. A game can be categorized as a game of skill or chance depending on the facts and circumstances of each case, the court ruled in Manoranjitham Manamyil Mandram v. State of Tamil Nadu.

The Kerala High Court ruled that playing for stakes or not is not a factor in assessing whether a game is one of skill or chance when it dismissed a notification that sought to outlaw online Rummy when played for money. “Players have the right to support themselves with their talents.”

Online skill-based gaming is legal.

Using their jurisdiction under Entry 26 of List II, the states of Karnataka, Andhra Pradesh, Telangana, Tamil Nadu, and Kerala made changes to outlaw all types of internet gaming, including skill-based games, in their respective states. They cited an increase in cases of youth suicide, gaming addiction, and financial loss.

States are outlawing online gaming for the reasons listed below:

1. Online games are prone to addiction, and if played for money, they can cause users to commit suicide.
2. instances of children committing murder and crimes to make up for losses from online gaming
3. Websites can manipulate online gaming.

Because they violate the basic right to engage in commerce, business, and occupation, these changes have been brought up in court as being unconstitutional.

As a result, the rules outlawing skill-based gaming have all been overturned by the Madras High Court, Kerala High Court, and Karnataka High Court. Although governments have the sole authority to enact laws governing skill-based gambling, courts have cited the following as key justifications: 

1. A complete prohibition on skill gaming is arbitrary, unlawful, and in violation of Article 19 (1). (g).
2. Additionally, both Article 19 (1) (a) and Article 21 mention participating in games and sports of skill.
3. Such a ban is out of proportion to the goal that governments are trying to accomplish.
4. There are no scientific studies or data about the negative effects of real-money gambling supplied by the states to support complete prohibition.
5. The stakes in the game do not affect a player’s ability to use their skills to their advantage and support themselves financially.

India needs to regulate internet gaming

There are no regulatory frameworks in place for India’s online gaming sector. There is uncertainty over tax rates and revenue collection in the lack of any comprehensive legislation. Currently, several states have rules governing online gambling inside their borders, but due to the industry’s rapid expansion, there is a need for federal legislation that would apply to the entire nation. An effective regulatory system would also promote economic growth and other advantages.

The Online Gaming (Regulation) Bill 2022 has been introduced in Parliament to address the issues and guarantee the expansion of the online gaming sector. According to Article 249 of the Constitution, the Center may pass laws on state subjects provided they are in the “national interest.” This legislation aims to establish a central body for regulating and supervising internet gaming in India.

The 2022 ONLINE GAMING (REGULATION) BILL

A private member’s bill titled Online Gaming (Regulation) Bill, 2022 was presented in Lok Sabha.

While preserving the integrity of online gaming, the measure aims to establish a regulated framework for it.

Online gaming is defined as games played on any electronic device in Section 2(e) of the bill. A central government-created “online gaming commission” would be established under the proposed legislation as an oversight body to develop guidelines for online gaming, including licensing requirements and reporting requirements. Playing without a license is a crime that carries a fine. Any license requirement that is broken will result in license revocation.

The Know Your Consumer (KYC) requirement, the grievance redressal system, data protection or privacy, and one of the key reasons for bringing forth such a bill, mental health issues including addiction and depression, are not addressed in the bill.

The current regulations also have a lot of problems. The distinction between “game of chance” and “game of skill” is not mentioned in the definition of online gaming, which is essential given the conflicts that have arisen in the past as a result of this lack of demarcation. Furthermore, real-money gaming needs to be regulated due to its rising popularity and potential for an increase in unlawful transactions, but the bill does not offer any precise guidelines in this regard.

There is a lack of a thorough licensing structure with precise rules. Although the bill represents a big step, it does not effectively address the problems related to online gambling. The bill must be clearer and more open.

CURRENT SCENARIO

Currently, the majority of businesses that offer real money games are supervised by charters given by the All India Gaming Federation (“AIGF”) and the Federation of Indian Fantasy Sports (“FIFS”), two self-regulatory organizations created to oversee online gaming in India. The lack of enabling national legislation is felt deeply even though these charters help to streamline the conduct and governance of online gambling platforms.

CONCLUSION

Since the start of the epidemic, online gaming has grown in popularity and involvement, especially among young people. While it has been good for the economy, there are societal, psychological, and legal ramifications for online gaming in India. The internet gaming sector is in a “grey area” because there aren’t clear distinctions and rules.

For a long time now, courts have dealt with these ambiguities. The country needs a well-regulated gaming industry if it is to fully realize its enormous economic potential. The recently proposed bill does not seem to be sufficient; the only way to guarantee everyone’s safety and privacy in one of India’s fastest-growing businesses is through a thorough legal system.

---

References:．

1. India’s Online Gaming Bill: Regressive Regulation – JURIST – Commentary – Legal News & Commentary [Online][Cited: 3 September 2022] https://www.jurist.org/commentary/2022/05/nishka-kapoor-online-gaming-bill-india/．

This article is written by Kanika Arora from Delhi Metropolitan Education (Affiliated to GGSIPU).

-Report by Zainab Khan

A bench consisting of SC judges of Justice U.U.Lalit, Justice Ravindra Bhat, Justice Sudhanshu Dhulia hearing a civil appeal in the case of the University of Kerala and ors. Etc. Vs Merlin J.N and anr.etc.etc held that regulations passed by UGC’s have a retrospective effect on the appointment of university Lecturers, which gives them exemption from the compulsory qualification of NET.

FACT

Appellant had qualified M.Phil in the year 2000 and completed his Ph.D. in 2006. He was appointed as a lecturer of sociology at the University of Kerala on 4.08.2012. The university provides him exemption from compulsory NET qualification while selecting him. The respondent who was ranked 2 nd in the selection process in the same category, filed a writ petition before the Kerala High court alleging that the appellant’s appointment was not in accordance with UGC, REGULATION 2009.

The HC court ruled on 1.02.2017 that the appellant was not qualified to hold the post of Lecturer, the court relied on the judgments of Suseela Vs. University Grants Commission and Dr. D Radhakrishnan Pillai Vs. The Travancore Devaswom Board.

APPELLANT CONTENTION

The counsel for the appellant argues that his appointment was made as per the law, as university has adopted the UGC regulations, 2009 on 23.11.2013 which is after the appointment of the appellant. The counsel further argues that the resolution passed by UGC in its 471 meeting on 12.08.2010 that Ph.D regulation 2004 and UGC regulation
2009 were of prospective nature.Hence appellant’s appointment should be declared as valid.

RESPONDENT CONTENTION

Counsel for respondent argues that respondent is more capable than appellant as she had qualified for her NET exam in 1998 and done Ph.D. later and since then she is working in Kerala university as a teacher. The counsel further argues that the UGC resolution on 12.08.2010 is contrary to UGC regulation 2010 and the central Government also disagrees with this resolution.

Counsel argues that the appellant should not take benefit of ph.d regulation 2009 and UGC regulation 2016 , as these have prospective effect and he has completed his ph.d before both regulations.

Key highlights of UGC amendments –

• UGC regulation 2000 states NET as an essential condition for appointment as a lecturer in any university. But it exempted candidates who acquired M.Phil or submitted a Ph.D. by 31.12.1993 from NET.
• UGC regulation amendment 2002 gives exemption to candidates from NET who acquired their M.Phil by 31.03.1993 or submitted Ph.D. by 31.12.2002.
• UGC regulation amendment 2009, it rules the minimum condition for appointment of the lecturer as NET but exempted those who acquired their Ph.D. in accordance with Ph.D. regulation 2009.
• UGC regulation amendment 2016, provides candidates having a Ph.D. degree before 11.07.2009 also considered to be appointed as lecturers.

JUDGEMENT

The Hon’ble court has observed how UGC is protecting the candidate and learned teachers by giving them exemption from compulsory NET as much possible as it can.

The court ruled that UGC regulation 2016 is retrospective in nature. The court relied on the judgment of Rafiquennessa v. Lal Bahadur Chetri (dead) through his representative and ors.

The Hon’ble court quashed the earlier orders of the Kerala High court and upheld the appellant’s appointment as valid as per UGC regulation 2016.

Case Number

Criminal Appeal No. 329/2021

Equivalent Citation

2021 SCC OnLine SC 230

Bench

• Justice S Ravindra Bhat
• Justice AM Khanwilkar

Decided On

March 18, 2021

Relevant Act/Sections

• Section 376 of the Indian Penal Code, 1860
• Section 506 of the Indian Penal Code, 1860

Brief Facts & Procedural History

The petition was filed by Advocate Aparna Bhat and eight other lawyers in response to an unjustified order issued by the Madhya Pradesh High Court on July 30, in which the accused of sexual assault was ordered to visit the victim’s home on the occasion of Raksha Bandhan with Rakhi and be tied by her as a condition of bail. The accused, who is a neighbour of the complainant Sarda Bai, entered her house on April 20, 2020, and attempted to sexually harass her, prompting the filing of (hereafter referred to as IPC). After the case was investigated, a charge sheet was filed. Under section 438 of the Code of Criminal Procedure, the accused filed an application for anticipatory bail (hereafter referred to as Cr.P.C.) The accused was granted bail by the Madhya Pradesh High Court on the affliction that he and his wife visit Sarda Bai’s house on the occasion of Raksha Bandhan on August 3, 2020, with a package of sweets and ask her to tie the Rakhi to him with the pledge that he will protect her to the best of his ability in the future. The accused was also directed to hand up Rs. 11,000 as a gesture of gift given by brothers to their sisters as part of the customary Raksha Bandhan rites, which the petitioners have challenged before the Hon’ble Supreme Court.

The petitioner filed a writ plea in the Supreme Court of India against the Madhya Pradesh High Court’s order. The following prayers were included in the petition:

1. The Supreme Court directed the High Courts and trial courts not to make such observations in situations of rape and sexual assault which would trivialize the anguish endured by the victim and impair their dignity.
2. The courts should not aim at compromises such as encouraging marriage between the accused and the prosecutrix and it should not be considered a judicial remedy. Compromises like this go against a woman’s honour and dignity. The petitioner cited the case of State of Madhya Pradesh v. Madanlal¹ in support of his claim.
3. The appellants further urged that no judge make any remarks or observations in the ruling that would reflect their prejudices and harm the woman’s dignity.
4. In circumstances of sexual assault, no such restriction should be imposed that permits the applicant to see the complainant or her family members. The court was requested to provide gender sensitization directives for the bar and bench, as well as law students.
5. Also, under Sections 437 and 438 of the Cr. P.C, the court was asked to set instructions on legally feasible bail terms.

Issues before the Court

• Can a compromise be struck between the accused and the victim in such instances?
• Is it acceptable for courts to issue such orders, and if so, what effect will such judgments have on society?
• Do such directions constitute to conduct of the trial in an unfair manner?
• Can the accused be permitted to meet the survivor or any of the members of her family?
• What, most importantly, should be the guidelines that courts should follow when granting bail and anticipatory bail?

Decision of the Court

In rape and sexual assault cases, the court clarified that no compromise can be made or even considered under any circumstances because it would be against her honour. Courts and other law enforcement authorities are intended to be neutral agencies and are tasked to guarantee the fair conduct of the trial by preserving impartiality and neutrality. And such techniques in rape and sexual assault trials would shatter rape survivors’ faith in the court’s impartiality. The court also noted that women’s status and society’s attitude toward them are both poor, and they suffer greatly. They are already experiencing numerous problems in their life for being a woman in our culture.

Judgements set precedents that the entire society adopts at different stages: By judicial decree, orders such as tying Rakhi on the accused’s wrist transform the molesters into brothers, reducing and degrading the charge of sexual harassment. Therefore, the use of reasoning/language which lessens the offence and seeks to belittle the victim is notably to be avoided under all circumstances. The law does not allow or condone such behaviour, in which the survivor may be traumatized several times or forced into some form of non-voluntary acceptance, or be pushed by circumstances to accept and condone behaviour that is a major violation.

The petitioners urged that the High Court’s decision should be overturned. The petitioners argued that Sections 437 (3)(c) and 438(2)(iv) of the CrPC permit courts to impose whatever condition they see proper in the public interest, but that the conditions must be consistent with the other provisions. When considering cases of rape and sexual assault, the court in Ramphal v. State of Haryana² concluded that compromise is irrelevant. The petitioner also requested that no judgement or order be passed by the court that could affect the dignity of women or the fair and unbiased conduct of trials, citing several cases where the apex court has rejected the idea of compromise on the grounds that it is antithetical to the woman’s honour and dignity and that it disparages and downgrades otherwise heinous crimes, implying that such offences are remediable by the judicial system.

The intervenors’ counsel argued that the court had the competence to impose sanctions under Sections 437(2) and 438. Requirements come in a broad variety of forms, and the court cited a number of cases in which judges imposed specific conditions for granting bail.

In its order, the Supreme Court framed various guidelines. These are as follows:

1. Contact between the accused and the complainant should never be allowed as a condition of bail, and if bail is granted, the complainant should be informed as soon as possible, along with a copy of the bail order being delivered to her within two days.
2. Bail conditions must precisely adhere to the stipulations of the Cr.P.C., and the order shall not represent patriarchal attitudes toward women.
3. Any offer to the accused and victim for a compromise, such as getting married or mandating mediation, should be ignored since it is outside the court’s authority.
4. The court has ordered a module as part of every judge’s basic training to ensure that judges are sensitive while considering cases involving sexual offenses and to minimize ingrained societal bias and sexism.
5. The National Judicial Academy has also been urged to integrate gender sanitization as soon as feasible in the training of young judges.
6. Similarly, the Bar Council of India has been mandated to incorporate gender sanitization in the LL.B. curriculum and as a mandatory topic in the All-India Bar Exam syllabus.

The Supreme Court commended the petitioner for his insightful ideas and overturned the Madhya Pradesh High Court’s bail terms. The court has established certain criteria in this regard. It also agreed to the recommendations for a gender sensitization curriculum in law schools, as well as for the bar exam and introduction training for newly appointed judges.

Conclusion

The victims of sexual abuse have always been blamed on Indian society. Women have been questioned repeatedly about their behavior, clothing choices, attitude, and when they plan to leave their homes. During trials, judges have frequently reinforced this practice by questioning the victim and making remarks that stereotype particular behaviors and threaten to disrupt the trial. With the Supreme Court openly criticizing such behavior on the part of the courts, hope for judicial reform has been reignited. Gender sensitization seminars will also aid in raising awareness of the issue among legal professionals.

By delivering this order, the Supreme Court has established a significant precedent for courts to follow in dealing with sexual assault victims in the future. Discussing the faults of a patriarchal culture has set an example for its enormous audience. This will go down in history as a significant step toward women’s independence. It is hoped that if the standards are followed, we will not see such arbitrary conditions in judicial orders in the future.

Almost certainly that judges assume the most essential part as the educator, as the defender, and as the watchman, and anything they say turns into the points of reference that is then trailed by lower courts in their decisions, and consequently it turns out to be vital for the judges to take the most extensive level of care while offering any expression which influences the actual premise of legal executive and confidence of individuals. In cases connected with the assemblage of ladies and particularly in sexual offenses cases, even little mistakes either as a judgment or any assertion made by courts might prompt genuine offense against the survivors. There have been different examples of orientation related cases as of late when courts have believed the victim to make split the difference by permitting the accused to marry her or as in the present case by requesting him to get Rakhi tied on his wrist by the victim or by making some other split the difference as the court might coordinate. Such translations are horrendous in nature and show the quality of judges towards the ladies yet as it is said Judiciary is a self-recuperating process, present judgment by Supreme Court validated the explanation. Outlining the guidelines for orientation sterilization and adding it to the curriculum of LLB will assist the legal advisors with instilling the impartial and nonpartisan quality towards the ladies which will most likely assist the victims in fair direct preliminary with practically no dread on their part.

Intentional or otherwise, such comments by trial courts and high courts should be avoided at all costs. Judicial stereotyping is another term for this. When judges attach specific attributes to someone based on their gender, religion, caste, or race, this is known as judicial stereotyping. Judges often reinforce hazardous prejudices as a result of this, rather than questioning them as they are intended to. Because of the vast audience that court declarations serve; such remarks can have a greater social impact. Stereotyping also has the potential to undermine the judge’s impartiality, obstructing a fair trial. Creating rape myths or an idealized picture of a sexual assault victim also undermines the incident’s credibility and the harm suffered by survivors of sexual assault who do not fit the public image of a chaste lady.

Women are underrepresented in the legal profession, and women lawyers frequently experience discrimination and discriminatory remarks. As a result, in order to assure gender-biased-free judgments, the first step should be to create an equal environment within the institution and raise awareness about the issue. The answer to these ills comes from public discourse and keeping organizations with the potential to make a difference responsible. Such sexist judgments should be condemned and held up as an example of what is not acceptable behavior.

Citations:

1. (2015) 7 SCC 681
2. 2019 SC 1716

This case analysis is done by Arryan Mohanty, a 2nd Year Student student of Symbiosis Law School.

Case Number

Transfer Case (civil) 92-95 of 2002

Equivalent Citation

2004 (2) Mh.L.J. 1090

Bench

• Chief Justice Vishweshwar Nath Khare
• Justice Brijesh Kumar
• Justice Arun Kumar

Decided On

April 8, 2004

Relevant Act/Section

• Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002
• Essential Services (Maintenance) Ordinance Repeal Act, 2001
• Transfer of Property Act, 1882

Brief Facts & Procedural History

Here, the constitutionality of SARFAESI was challenged, particularly Sections 13, 15, 17, and 34, on the grounds that they are arbitrary and unjustified.

The Industrial Development Bank of India (for short, ‘the IDBI’) issued a notice to Mardia Chemicals Ltd. on July 24, 2002, under Section 13 of the then-current Ordinance, requiring it to pay the amount of arrears indicated in the notice within 60 days, failing which the IDBI, as a secured creditor, would be entitled to enforce the security interest without the intervention of a court or Tribunal, using all or any of the measures contained in sub-section (4) of S The petitioner was also prohibited from selling, leasing, or otherwise transferring any of the secured assets.

Other financial institutions and banks issued similar notices to other parties who filed petitions in various High Courts under the terms of Section 13 of the Ordinance/Act. This was united with a number of other writ petitions filed in several High Courts contesting the constitutionality of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act of 2002.

The petitioners argued that the Recovery of Debts Due to Banks and Financial Institutions Act 1993 was sufficient to address the difficulty created by NPAs and that the current statute was unnecessary. It is debatable whether the Court should delve into the necessity of a statute while considering its constitutional legitimacy. “The Parliament and Legislatures composed as they are of the Representatives of the people are supposed to be cognizant of the requirements of the people and what is good or harmful for them,” the Supreme Court has previously decided.
The Court is unable to sit in judgment of their wisdom… A law passed by Parliament or a state legislature can be overturned for two reasons:

1. inadequacy of legislative authority
2. infringement of any constitutional rights¹

In BALCO Employees Union v Union of India², the Supreme Court has ruled that the right place for discussing policy issues is the legislature, not the courts.

In light of the Court’s previous pronouncements, it is evident that the question to be answered is whether the legislation is constitutional. Any discussion of whether a statute is required, particularly in light of another Act whose scope is not in question in this case, was superfluous. As a result, the Court declined to hear the case.

Many petitioners argued that the existing rights of private parties under a contract cannot be interfered with, particularly by putting one party in a more advantageous position than the other. In the present case, for example, in a matter of private contract between the borrower and the financing bank or institution, the borrowers’ rights have been curtailed and enforcement of secured assets has been provided without the intervention of the court, denying them the remedy available under the law by approaching the civil court.

The Appellants are vague on where they find the legal validity of their claim. The Honourable Supreme Court has pointed out that, unlike the US Constitution, there is no bar to prospective contract invalidation in India, and hence such a statute is completely constitutional.³

Indeed, the 44th amendment removed the right to property as a basic right from the Constitution, leaving it only as a constitutional right. Indeed, even while the right existed in part III, the courts ruled that absolute contract freedom, as defined by the idea of leissez faire, was no longer valid.⁴

The Appellants have also been unable to locate the rights under Art 19(1)(g) and Art 298. The Supreme Court has ruled that these articles are subject to reasonable constraints and that what is acceptable is to be interpreted in the public interest, regardless of how onerous the restrictions are on the individual’s interests.⁵

In light of these precedents, it’s difficult to identify where the appellants’ reasoning originates. The respondents’ counsels, on the other hand, have not taken a position on the Constitution’s freedom of contract or right to trade, but have pointed out that a similar argument has been raised in a different context, namely statutes providing relief to agricultural borrowers, and has been repeatedly rejected.

It has been contended that certain facts must be determined before the power u/s.13 can be used, such as whether the person to whom notice is given is liable to pay, the magnitude of the liability, and so on. Furthermore, issues such as the law of limitation and bar under consortium agreements, set-off/counterclaim claims, creditors defaults as bailees or failure to disburse credit on time, the changeability of penal interest or compound interest, non-appropriation of funds already paid, and so on and so forth must be resolved.

So, using case law that will be covered in the main project, it was claimed that a lis exists in such a case and that the ability to resolve a lis is a judicial or quasi-judicial power, not solely an administrative function. As a result, a suitable forum must be established to resolve all such disagreements at an early stage.⁶

The statutory provision becomes arbitrary, procedurally, and substantively unfair if such a forum is not established. This is a false argument based on facts. S.13 does not preclude the use of any judicial venue; it just states that a judicial remedy can be sought only after the secured creditor has used his powers under s.13 (4). This is entirely correct. Many legislations provide for the use of a forum after the aggrieved party has exhausted self-help options.

It was also pointed out that the provisions of s.13 generate some practical challenges that could lead to serious legal errors. Section 2(f) of the Act, for example, specifies that the meaning of the term “borrower” includes the guarantor. A guarantor is relieved of his commitment under Section 135 of the Contract Act in certain circumstances. Now, if a discharged guarantee receives a notification under Section 13(2) of the Act, he cannot approach the Court to show and establish that he is a discharged guarantor because Section 34 prohibits him from filing an action in the Civil Court. As a result, notice under Section 13(2) is unfavourable.⁷

These concerns have been addressed by Section 35 of the Securitization Act, which states that the Act’s provisions have precedence over all other laws. Finally, it was pointed out that under s.13 read with s.34, the borrower has no right to go to court before the lender employs the rights granted under s.13 (4), exposing him to arbitrary and potentially fraudulent lending practises. It was argued in defence of this section that because the asset cannot be sold for 60 days under Section 9 of the Rules, the borrower has the option of approaching the Tribunal within that time frame. The Court accepted the plaintiffs’ argument in part and added two riders to s.13. To begin with, it was held that the lender had an obligation to reveal the reasons for not accepting the objections or points expressed in response to the notice issued to them before taking action under Section 13 (4). Second, the Court made a comparison to an English mortgage, pointing out that enforcement proceedings under an English mortgage can be contested on the basis of fraud. This section is also subject to such provisions.⁸

Another point that the Court has overlooked is that a statute must be read in context and in pari materia as a standard rule of legislative construction. The present Act’s s.13 is pari materia with the State Financial Corporation Act of 1951’s s.29. Art 300A, 21, and 14 have all been challenged on the basis of this section’s constitutional vires, specifically that it provides no right of appeal. Though the matter was never heard by the Supreme Court, it was considered by a number of High Courts. The courts have consistently ruled that the Act itself reveals a clear aim and objective and that the power granted under s.29 is intended to carry out that policy, namely, the prompt collection of dues.⁹

Issues before the Court

• Is it possible to challenge the statute on the grounds that it was unnecessary to create it given the circumstances, especially when another statute was already in effect?
• Whether the terms or existing rights under a contract entered into by two private persons could be altered by provisions of law conferring one-sided powers in favour of one of the contracting parties?
• Whether or not Section 13 of the Act is unconstitutional?
• Whether the requirement that 75% of the amount owing to be paid before filing an appeal with the DRT is onerous and thus Section 17 of the Act unconstitutional?

Decision of the Court

In this case, the Supreme Court held that:

a) The Parliament’s superiority in deciding the need for legislation was emphasised.
b) The connection between the RDB Act and SARFAESI was rejected since the latter deals with the highly particular issue of nonperforming assets (NPAs) (among other differences such as the latter dealing only with secured creditors).
c) As a result, it is up to Parliament to decide whether or not legislation is required.
d) Section 13 was found to be constitutionally legitimate by the Court.
e) The secured creditor is only exercising his entitlement because the default that led to the sec 13 measure might be considered a “second default”—NPA + 60 days extra time to repay following notice.
f) Prior to the 2016 Amendment, Section 13 acknowledged the Right of Redemption in a sense. Rule 8 and 9 of the SI Rules stated that the bank must serve a notice confirming the sale of secured property and that the borrower may pay off the obligation and reclaim possession at any point prior to the actual sale
g) While the Supreme Court confirmed the constitutionality of the section, it pushed hard for borrowers to have the right to representation.
h) The Supreme Court determined Section 17(2) to be arbitrary, and ordered that the heading be altered from “appeal” to “application.”

Impact of the Judgement

1. Section 13 now states that the bank must evaluate all of a borrower’s representations and respond within seven days (which was later changed to 15 days).
2. Within section 17, the word “appeal” was replaced by “application,” despite the fact that the marginal header remained the same (wow). In 2016, the appeal was superseded by an application in the marginal heading.
3. DRTs now have jurisdiction over the rights of tenants in a security property. In such instances, the property is given to the person who files the application (if he meets the requirements).
4. Section 18 was also considerably amended. When filing an appeal with the DRAT, you must deposit 50% of the total cost, which can be lowered to 25%. DRT was likewise granted a similar waiver right under Section 17.

Citations:

1. State of Andhra Pradesh v McDowell, AIR 1996 SC 1627
2. AIR 2002 SC 350
3. Raghubir Dayal v Union of India, AIR 1962 SC 263
4. YA Marmade v Authority under Minimum Wages Act, (1972) 2 SCC 108
5. Krishan Kakkanth v Government of Kerala, (1997) 9 SCC 495
6. Kihoto Hollohan v. Zachillhu & Ors1992 Suppl. (2) SCC p. 651 and Associated Cement Companies Ltd v. P.N. Sharma (1965(2) SCR p. 366 at pages 386-87).
7. Mafatlal Industries Ltd. and Ors. v. Union of India and Ors., 1997(5) SCC
8. Adams v. Scott, (1859) 7 WR (Eng.) 213 (Z49)
9. K Surendranathan v Kerala Financial Corporation AIR 1988 Ker 330

This case analysis is done by Arryan Mohanty, a 2nd Year Student student of Symbiosis Law School.

The need for interpretation only arises when the wording of the legal provisions is ambiguous, if it is not clear, if two views are possible, or if the meaning of the provisions is different from the subject of the legislation. If the language is clear and clear, no interpretation is needed to develop.

INTRODUCTION

The dictionary definition of interpretation is “the act of trying to make sense of something.” In a legal context, interpretation refers to the process of understanding and comprehending a statute’s intent. The word “interpretation” comes from the Latin word “interpretari,” which means “to explain or translate.” The basic goal of interpreting a statute is to figure out what the law’s intent is.

The goal of statutory interpretation is to identify the legislature’s objective, which is expressed either explicitly or implicitly in the wording used. “By interpretation or construction,” SALMOND explains, “we mean the process by which courts seek to discern the meaning of the legislation through the channel of authoritative shapes in which it is written.”
The art of interpretation is as old as language itself. Even from the earliest stages of Hindu civilization and culture, complex norms of interpretation were developed. Various ancient textbooks emphasized the necessity of evading literal interpretation – “Merely following the wording of the law, decisions are not to be delivered, for, if any such decisions are lacking in equity, a major failure of Dharma is caused.”

As a result, interpretation is a well-known and important activity. Because of the intrinsic character of legislation as a source of law, interpretation is critical in connection to statute law. The process of enacting legislation and the process of interpreting legislation are two separate operations.

Several aids are employed in the interpreting process. They might be either statutory or non-statutory in nature.
Non-statutory aids are illustrated by common law rules of interpretation (along with certain suppositions relating to interpretation) and case laws relating to the interpretation of statutes, whereas statutory aids are demonstrated by the General Clauses Act, 1897, and specific definitions contained in individual Acts.

MEANING OF THE GOLDEN RULE

“The grammatical and ordinary perception of the words is to be abided to unless that would lead to some absurdity, repulsion, or lack of consistency with the rest of the instrument, in which particular instance the ordinary meaning sense of the words may be altered so as to prevent the absurdity and inconsistency, but no further,” said Lord Wensleydale in the Grey v Pearson case (1857).

As a result, it is a departure from the literal rule of interpretation. The literal rule emphasizes the literal interpretation of legal terms or terms used in a legal context, which can frequently result in ambiguity and absurdity. The golden rule aims to prevent unusual and absurd consequences from literal interpretation. As a result, the grammatical meaning of these words is frequently altered.

The court is usually concerned with delivering justice, and the golden rule is typically applied in order to anticipate the repercussions of their rulings. Because the technical and grammatical meanings of the law may not be sufficient, this rule of interpretation tries to give effect to the law’s spirit.

The terms of a statute must be accorded their ordinary meaning prima facie according to the Golden Rule since when the meaning of a word is clear, it is not the role of the courts to get involved in the alleged purpose. When grammatical interpretation results in absurdity, however, it is permitted to depart from and interpret statutes in a way that eliminates the absurdity.

When presented with multiple plausible interpretations of an enactment, the court has the authority to analyze the outcome of every interpretation in order to determine the genuine meaning of the legislature. The golden rule does not provide a clear way to determine whether or not an absurdity exists.

In a nutshell, it is an interpretation that will give effect to the legislative intent when the words themselves become confusing, as a result of modifying the language employed. On the surface, this rule appears to be the “Golden Rule,” as it appears to solve all difficulties. This strategy is also known as the altering method of interpretation because the literal meaning is altered to a certain extent. As a result of this rule, the implications or effects of an interpretation are given far more weight because they provide clues to the underlying meaning of a law.

There are two ways to apply the golden rule:

Narrow Technique– When a word or phrase has far more than one literal meaning, this approach is used. As a result, the judge is able to utilize the meaning in a way that avoids absurdity.

Broad Technique– Whenever there is just one literal meaning, this approach is used. However, using just one literal definition would be ludicrous. The court will change the meaning in this case to prevent the absurdity. The change will be made with the objective of the Parliament in enacting the law in this case in mind.

IMPORTANCE OF INTERPRETATION

The term “interpretation” refers to determining the relevance of something, as well as determining an explanation for something that isn’t immediately clear. The process of drafting and interpreting a statute is as old as language itself.
The process of determining the actual meaning of the words used in a statute is known as statutory interpretation.
There is little need for interpretation rules when the statute’s text is clear. However, in some instances, the very same word or phrase might have many meanings. As a result, it is required to interpret the statute in order to determine its true objective.

From Heydon’s Case in 1854, statute interpretation has been an important component of English law, and while it may appear complicated, the key rules employed in interpretation are simple to understand. Even from the earliest stages of Hindu civilization and culture, complex norms of interpretation were developed. The guidelines offered by ‘Jaimini,’ the author of the Mimamsat Sutras, which were originally intended for srutis, were also used to interpret Smritis.
The concept of statutory interpretation cannot remain static. As new facts and circumstances emerge, interpreting statutes becomes a never-ending process.

Wherever the language of written law is unclear, not clear, or when two interpretations are available, or when the provision offers a different meaning, contradicting the purpose of the act, would there be a need for interpretation? There would be no need for interpretation if the language was clear and unambiguous.

IMPORTANCE OF GOLDEN RULE INTERPRETATION

When the meaning of a law can lead to absurdity or defeat the purposes of the enactment, it becomes the Court’s obligation to give effect to that interpretation. The law asks the court to go to the point of changing the meaning of terms in both the grammatical and common senses on occasion.

The court will not take a path that contradicts a provision of a law whose meaning appears to be relatively clear and obvious on the surface. This does not, however, imply that a law might be rewritten. It has to be possible to deduce the meaning of the words used from their context.

Unless the law’s phrases are nonsensical, confusing, or devoid of legitimate meaning, it is better to interpret them according to their normal and customary interpretation.

How is this golden rule of interpretation applied?
As a balance between the literal rule and the mischief rule, the golden rule can be proposed. It takes the literal interpretation route, giving the status its everyday meaning. On the same hand, if a literal interpretation results in an unreasonable consequence that is unlikely to achieve the act’s goals, the court has the authority to depart from the literal meaning. Also, while using, follows all applicable laws.

The following is an example of how to apply the rule in both its broad and narrow senses:

If a sign says, “Do not use the elevators if there is a fire,” the literal reading is that you should never use the elevator if there is a fire. But, this interpretation is nonsensical, and the sign’s true intent is to warn people not to use the elevators if there is a fire nearby.

The golden rule prevents a result that is contrary to public policy when employing a broader approach. A son, for example, kills his mother and then kills himself. The heirs of the mother’s property would either be the mother’s family or the son’s descendants, according to the law. In the interest of social policy, the court is likely to favour the mother’s family because there is an issue of benefitting from the crime.

The Golden Rule allows a court to consider an Act’s literal meaning. This rule allows a judge to deviate from the customary interpretation of a statute in order to avoid a ridiculous conclusion. When using the Literal Rule will result in an absurdity, this rule of legislative interpretation may be used. The Golden Rule provides a statute’s wording with its most basic, everyday meaning. When this could result in an irrational result that is doubtful to be the legislature’s objective, the golden rule enables a judge to deviate from this meaning.

GOLDEN RULE OF INTERPRETATION IN INDIA

In India, the Supreme Court and High Courts have utilized the Golden Construction of Statutes in a number of cases. When it appears that this rule is named even for literal rules, there may be some confusion. The golden rule begins with a search for the true definition of the provision, so if there is a clear meaning, plain and natural, and no repugnancy, the meaning is applied. However, when there is the potential of more than one meaning, one must go further to minimize annoyance by adjusting the language by adding, removing, or substituting terms in order to make the meaning correct expounding the legislature’s goal.

The Supreme Court concluded in Uttar Pradesh Bhoodan Yagna Samiti v. Brij Kishore that the term “landless person” employed in section 14 of the U.P. Bhoodan Yagna Act, 1953, which provided for the grant of land to landless people, was confined to “landless workers.” A landless labourer is someone who works in agriculture but does not own any land. The Court went on to say that “any landless individual” does not include a city-dwelling landless businessman. The Act’s goal was to put the Bhoodan movement into action, which aimed to distribute land to landless labourers that worked in agriculture. Even though he is landless, a businessman cannot gain from the Act.

In another case, under section 3A of the U.P. Sales Tax Act, 1948, Annapurna Biscuit Manufacturing Co. v. Commissioner of Sales Tax, U.P. Sales 34 Tax was set at 2% of turnover in the case of “cooked food.” The appellant company was in the business of making and selling biscuits. Whether biscuits, despite being meant for human consumption, could be considered as “prepared food” and so subject to taxation under the aforementioned provision’s notification. It was decided that if a statement can have a broader meaning, whether the broader or narrower interpretation should be recognized depends on the statute’s context. The words ‘prepared food’ did not cover the biscuit in this case.

CONCLUSION

Every country has its own legal system, with the goal of providing equal justice to all citizens. The court’s goal is to interpret the law in such a way that every citizen receives equal justice. The idea of blasters of interpretation was introduced to ensure that everyone was treated fairly. These are the rules that have emerged to determine the legislature’s true intent.

It is not always required for the language used in a statute to be clear, plain, and unambiguous, and in such circumstances, it is critical for courts to identify a clear and direct meaning of the words or sentences used by the legislature while also removing any questions that may exist.

This article is written by Tingjin Marak, a BA/LLB student at Ajeenkya DY Patil University Pune.

INTRODUCTION

The word ‘federalism’ is derived from the Latin word ‘foedus’ which means ‘covenant or treaty. Federalism refers to the distribution of powers between the state and the central government. Three lists are provided by the seventh schedule of our Indian constitution and the three lists are union lists, state lists, and the concurrent list. The central government deals with the issues mentioned under the union list such as defense, trade and commerce, citizenship, insurance, banking, highways, railways, higher education, navigation and shipping, and many more. The state government deals with the issue given under the state lists such as agriculture, pilgrimages within India, prisons, state court fees, public health and sanitation, and the last list is a concurrent list which consists of issues on which both the central government and the state government can exercise jurisdiction such as contempt of court, evidence, protection of wild animals and bird, labor welfare, stamp duties, food, administration of justice, etc. if there is a conflict between the central government and the state government then, the decision of the central government will supersede the decision of the state government.

PRINCIPLES OF FEDERALISM

SEPARATION OF POWERS
The power is divided into three branches: legislative, executive, and judiciary. These three organs of the government are independent of each other. These branches are well-known examples of the tripartite system in the united states. The main purpose of this separation of power is to prevent the concentration of power and autocracy.

CHECKS AND BALANCES
Checks and balances are important to prevent the concentration of power and violation of the separation of power. It is required for the proper functioning of the three organs of the government. Some of the examples of checks and balances are judicial review, basic doctrine structure of the Indian constitution, etc.

KEY FEATURES OF THE FEDERALISM UNDER THE INDIAN CONSTITUTION

DIVISION OF POWER
Division of power is the essential feature of federalism so that the power is not concentrated in the hands of the central government. In this, the power flows from the central government to the state government and the local government i.e panchayat.

SUPREMACY OF THE INDIAN CONSTITUTION
Supremacy of the Indian constitution means that the powers of the executive, judiciary, and the legislative are mentioned in the Indian constitution and they are bound by the constitution hence, no one is above the constitution. This feature gives strength to the basic structure doctrine of the Indian constitution which was given by the Keshvananda Bharti vs the State of Kerala¹.

WRITTEN CONSTITUTION
A written constitution is necessary to constitute a country as a federal nation. As it is difficult to distribute the powers orally among the center and the state government. Written constitution helps to maintain the supremacy of the Indian constitution and provides clarity.

RIGID CONSTITUTION
It is important to have rigidity in the constitution to maintain the supremacy of the constitution.

JUDICIARY
There can be a dispute between the center and the state and the judiciary provides the proper mechanism to solve the dispute between them and the decision of the judiciary is binding upon all of them.

• ARTICLE 131
  According to this article, the supreme court has original jurisdiction to hear the disputes between the center and the state, two or more states, etc.²
• ARTICLE 262
  This article focuses on the issue of water and valley disputes between states. This parliament Is allowed to make laws on the distribution of water or control of river valleys and can even bar the supreme court to hear disputes related to water or valley disputes.³
• ARTICLE 263
  Article 263 is based on the issue of the “establishment of the inter-state council”. In this article, the president can ask to establish a council on the charge of interest of the public or to resolve disputes between them. The duty of these councils is to advise and inquire the states if a dispute arises between them, make a recommendation for the better functioning of the policy, and discuss the subjects which are common to both the state and the union.⁴

BICAMERAL LEGISLATION
Like Canada, India has also bicameral legislation. India also has two houses upper house [Rajya Sabha] and the Lower house [Lok Sabha] and a bill have to be passed by both the houses of the parliament. In India even states also have bicameral legislation such states are Karnataka, Maharashtra, Uttar Pradesh, Bihar, Telangana, and Andhra Pradesh. They have an upper house [Vidhan sabha] and a lower house [Vidhan Parsihad].

QUASI FEDERALISM

Quasi federalism means a form of government that has features of both the federal government and the unitary government. For example India and Canada. But the major control and authority lie with the central government. India is a quasi-federal country in which the states have the power to make laws under list 2 of the seventh schedule of the Indian constitution and the central government has jurisdiction on the matters mentioned in the first list of the seventh schedule of the Indian constitution. The state government and the central government both have the powers to make laws on the matter listed under the third list of the seventh schedule of the Indian constitution. If the dispute arises between the center and the state then the opinion of the central government will prevail.

In India, emergencies can be imposed under articles 352, 356, and 360 of the Indian constitution. During an emergency center government retains all the power and the state government has no autonomy during an emergency. This way federalism loses its luster.

ISSUES AND CHALLENGES FACED BY THE INDIAN FEDERALISM

REGIONALISM
As center focuses more on bigger states than the smaller states and states work according to the democratic system. Then, the conflict can arise between them and they demand to be separated from the union.

ABSENCE OF FISCAL FREEDOM
Fiscal freedom basically means the distribution of financial and tax-related power between the center and the state government. It is necessary for the development of the nation. Though the main power lies in the hands of the center and also they have a finance commission whose work is to decide the state’s share in the center’s revenue.

OFFICE OF THE GOVERNOR
Governor is the head of the state and is appointed by the president of India under Article 155 of the Indian constitution. The decision of the president can overrule the decision of the governors appointed by the president.

INTEGRATED SERVICES
India has integrated services of the judiciary, audits, elections, and many more. The judiciary system of India consists of the supreme, the high court at the state level, and district courts. Supreme courts decisions are bound on the high court and the high court doesn’t have jurisdiction to entertain cases related to disputes between the states. The process of election is the same at both the center and the state level. At the center, it is conducted by the election commission and at the state level it is conducted by the chief electoral officer [CEO] but they are under the supervision of the election commission.

DIFFERENT RELIGION
India is a diverse country and has people who belong to many religions but India is a secular state and the word secular was added in the preamble under the 42nd amendment act which means India will not have any religion or will not promote any religion. This can lead to a conflict between the two religions and then makes federalism weak.

CASE LAWS

MANEKA GANDHI VS UNION OF INDIA
In the year 1978, the verdict passed under this law is that any law made by the legislature is considered to be ultra vires if it violates or infringes any of the fundamental rights. The fundamental rights can only be changed by the constitution, hence this is a check on both the executive branch and the parliament and the state legislatures. During times of emergency article 19 of the Indian constitution is taken away as during the times of emergency our country follows a unitary government. Therefore India is a quasi-federal country.⁵

STATE OF WEST BENGAL VS UNION OF INDIA
The exercise of sovereign rights by Indian states was the central issue in this case. The Parliament’s legislative competence to implement a statute requiring the Union to acquire land and other properties vested in or owned by the state, as well as the sovereign authority of states as separate entities, were also investigated. The Supreme Court of India ruled that the Indian Constitution did not contain an absolute federalism provision.⁶

Article 13 of the Indian Constitution will therefore become a non-issue, and it may be overlooked because even regular legislation will be exempt from judicial examination because they were passed on the strength of a constitutional amendment that is not subject to challenge.⁷

CONCLUSION

Federalism is the distribution of power from the central government to the state government and the local government. The main objective of this is to prevent autocracy. India is quasi federalism country which means it has the features of federalism but the main authority lies with the central government. No doubt there is a lack of balance between the center and the state government.

References:

1. Kesavananada Bharti vs state of Kerala, [1973 SC 1461]
2. Constitution of India, 1950 Art 131
3. Constitution of India, 1950 Art 262
4. Constitution of India, 1950, Art 263
5. Maneka Gandhi Vs Union of India, [AIR 567, 1978 SCR[2] 621]
6. State of West Bengal vs union of India, [AIR 1987 Cal 226]
7. Constitution of India, 1950 Art 13

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

INTRODUCTION

With the advent of social media and networking it is difficult to maintain privacy with the data available online. Data on the internet is flowing like water in the river. If the information of someone is available on the internet which the person has relevant context now or the reason for which it was there on the internet has been served is affecting the other person emotionally or making it difficult for another person to live peacefully. Then, it is a violation of article 21¹. This can be removed through the right to be forgotten which is provided under the right to privacy.

Right to forgotten means the deletion of the user’s personal information from the search engine, website, and many more. The European Union acquired the General Data Protection Bill [GDPR]² in the year 2018. Article 17 of this bill provides certain rights to the erasure of personal information and the certain rights include which are no longer necessary, consent has been withdrawn for particular information, and where there is legal obligation to erase. There are also some reasonable restrictions to some extent like in the area of public interest related to public health, or the data required in achieving historical, statistical, or scientific research.³

The right to be forgotten is to be followed in other countries also. In 2014, in Spain, the European court of justice managed a case Google Inc V Agencia Espanola De Proteccion De Datos in which a Spanish man whose name was Mario Costeja Gonzalez asked google to remove his information related to the auction for his unbridled home and the debt he had subsequently paid. Google was sued under the National High court which suggested a series of questions to the European court of justice. The court ruled the judgment in the favour of the Spanish man and asked google to delete the information.

In 2016, the first case of the right to be forgotten was heard by the Chinese court in Beijing in which they held that the residents don’t have the right to be forgotten. In this case, Ren Jiayu asked the Chinese web search tool Baidu to remove the search list that is related to Wuxi Taoshi’s previous business. Ren argued that the right of name and right of notoriety is reserved under Chinese law. Then the court ruled the judgment against Ren and said that he doesn’t have a right to be forgotten.

RIGHT TO BE FORGOTTEN UNDER THE PERSONAL DATA PROTECTION BILL

The right to privacy is our fundamental right under article 21 of the Indian constitution decided in the case of Justice K.S Puttaswamy Vs the Union of India⁴ in 2017. Data is a very sensitive thing that needs to be protected. The personal data protection bill⁵ was introduced in the Lok Sabha in 2019 with the objective to protect or conserve the data from getting into the wrong hands. This bill also includes the right to be forgotten under clause 20 of chapter V. it means that any person can ask the data fiduciary to remove or limit the data of the concerned person. The role of data fiduciary is to decide the means and the purpose of controlling the personal data it can be anyone an individual, entity, state, or cooperation. The data will be monitored by the Data protection authority and any removal of data has to be approved by the Data protecting authorities’ adjudicating officer. The officer has to see many aspects like the public interest in the concerned data, the extent of availability susceptibility, or the scope of divulgence before approving the removal of the data.

RIGHT TO BE FORGOTTEN VS THE FREEDOM OF SPEECH AND EXPRESSION

“Right to be forgotten is the biggest threat to freedom of speech and expression in the coming decade”
-Jeffrey Rosen

The right to be forgotten is a much-needed statute nowadays to protect the individual interest against defamatory or derogatory statements. Freedom of speech and expression is our fundamental right under article 19⁶ of our Indian constitution and also contains reasonable restrictions under Article 19[2]⁷. Whereas the right to be forgotten can undermine the lusture of freedom of speech and expression. It can affect journalism it will be difficult for media to express their views freely and to wait for the decision of the adjudicating officer. If any person wishes to delete some information on the internet then it will favor the individual, not the society at large. This will also create a sense of feeling in the minds of the people that they are not free to express their views through articles, books, blogs, etc.

CASE LAWS

• Jorawar Singh Mundy Vs Union Of India and Ors⁸
  In this case, the petitioner was an American citizen who visited India in 2009. He got acquitted under the narcotics drugs and substance [NDPS] act, 1985. After two years trial court convicted him on April 30, 2011. On 29 January 2013 through the appeal of state, the Delhi high court then affirmed her acquittal. After returning to America petitioner realized that the Delhi high court’s judgment is available on the internet and this can be harmful to his reputation or while screening test done by the employer. He sent directions to Google India Private Ltd., Google LLC, Indian Kanoon, and vLex.in but the judgment was not deleted then he filled a writ petition before the Delhi High Court for the violation of Article 21. The Delhi high court directed the respondents to delete the judgment.
  
• Dharmaraj Bhanushankar Dave Vs State of Gujarat and ors⁹
  In this case, the petitioner filed a writ petitioner under Article 226 of the Indian constitution before the Gujarat High court for the violation of Article 21. The non-reportable judgment was published by the Indian kanoon on their site and the petitioner contended that google and Indian kanoon has no right to publish any non-reportable judgment. The court held that the judgment was part of the proceeding and that merely publishing judgment on online websites will not amount to be reported. So, it is not a violation of Article 21 and there is no legal rationale to remove the judgment.
  
• Subhranshu Rout Gugul Vs State of Odisha¹⁰
  In this rape case, the accused has created a fake id on Facebook and uploaded objectionable photos of the prosecutrix on the fake id. The police were failed to take any strict action against the accused. The pictures were taken with the consent of the prosecutrix at the time they were in a relationship but now they got separated. It was observed that consent does not mean to misuse the phots or outraging the modesty of the women. In this case, the right to be forgotten should be exercised. The court held that the photo should be removed to protect the privacy of the victim. Irrespective of ongoing criminal cases. The Odisha High Court further noted that the Indian Criminal Justice system is more of a sentence-oriented system, with little emphasis on compensating victims for their losses and suffering. Allowing such offensive photographs and videos to remain on a social networking platform without a woman’s agreement is an outrage to her modesty and, more crucially, her right to privacy.

CONCLUSION

Information in the public domain is like toothpaste. They can not completely be deleted if someone has taken a screenshot or screened the concerned content. the right to privacy is our fundamental right under article 21 of the Indian constitution which needs to be protected. The right to be forgotten is also included in the personal data protection bill, 2019 which is a great step towards the safety of data and the privacy of the individual. In case one person was acquitted under any criminal action but later on find to be innocent and the judgment is reported on many websites or search engines. It can be difficult for the employee to get a job as during the screening process this can destroy the reputation of the employee. The right to be forgotten can be a major relief and can ask for the removal of the judgment. Also in the case when a person with the intention of taking revenge or with the feeling of animosity posts or share any picture or video which is offensive or outrages the modesty of the victim through the right to be forgotten victim can make them deleted. It is been a debatable topic whether the right to be forgotten undermines the fundamental right the freedom of speech and expression under Article 19 which also contains reasonable restrictions under Article 19[2] of the Indian constitution. If a person asks to remove some content from the website or from the internet then it can also cause feelings among the people that they are not free to express their views and opinion through writing articles, blogs, etc and the removal of the concerned content can lead to being in the favor of the individual rather than the society at large. According to me, it requires judicial administration, and article 19[2] which provides reasonable restrictions should be amended and should include privacy in it.

References: