THE AFTERLIFE OF SECTION 66A:HOW AN AGGRESSIVE AND IGNORANT POLICE MACHINERY REVIVED A DEAD LAW

By: Abhishek Unnithan, Rajiv Gandhi National University of Law

INTRODUCTION

“If Liberty means anything at all, it means the right to tell people things they do not want to hear.” This is the foundational social contract underpinning every free society. A civilized, democratic government rests on the quality of public discourse and this is engendered by the clashing of dissenting ideas and opinions. A democracy attempting to gag the free flow of expression is simply paying lip service to its democratic credentials. The tremendous explosion offset by the rise of the Internet has fundamentally altered the way people receive and transmit information. The Internet has manufactured a culture of mass amateurization, an era where anybody with a computer connection can be a media outlet. Incendiary news that could have been suppressed by the state’s iron fist now travels with the speed of wildfire[i]. Governments around the world have felt the heat caused by this digital revolution and often taken steps to gag free speech, under the pretext of maintaining social order.

A legal tool of the same colour was enacted by the Indian Government in the form of Section 66A of the Information Technology Act, 2000. The Information Technology Act was enacted to provide legal recognition to the burgeoning sector of e-commerce as well as effectively combat the array of cybercrimes arriving in its wake. In 2008, the Act was amended to introduce Section 66A which empowered law enforcement authorities to arrest citizens for sending “offensive and menacing” messages and was passed without discussion in the Parliament. The section vested police officials with the authority to make arrests based on messages which were construed to be “offensive” or “menacing” or “for the purpose of causing annoyance, inconvenience, danger, obstruction, insult” etc. The punishment, extending up to a prison term of three years, could be arbitrarily meted out to anybody sending “offensive” messages via a computer or any other communication device[ii].

The biggest criticism of the law pertained to the vague definition of “offensive” messages and the enormous power vested with police officials in determining what fell under this category. Legal scholars and activists pointed out that “offensive” was a purely subjective term and could not be effectively employed as a legal parameter. What one person deems to be inoffensive may infuriate someone else. This created a malicious opportunity for police officials to abuse the law and haul up anyone who might have a dissenting opinion. The law thus violated the fundamental right to free speech and expression (Article 19(1)(a)) and right to life (Article 21) as enshrined in the Constitution. Proponents of the law argued that strict legal punishments were necessary to curtail the abuse of information technology, especially social media and that the law was protected under the “reasonable restriction” clause elucidated in Article 19(2) of the Constitution.

When the issue finally came up before the Supreme Court in the case of Shreya Singhal vs. Union of India (AIR 2015 SC 1523)[iii], the apex court struck down Section 66A for being “unconstitutionally vague” and derailed the state’s attempt to gag free speech on the Internet. This was a significant decision which recognized the explosive power of the Internet in transcending traditional media and created a channel for unfettered access to information. The landmark judgement was rightly applauded across the country and around the world as a vehement pushback against state depredation and a resonant victory for free speech. Given the strongly worded pronouncements of the Supreme Court, it was assumed that Section 66A would never be invoked again and remain confined to scholarly discussions surrounding free speech in India.

However, this was not to be the case. Recently, the Supreme Court expressed its disappointment at the continued and widespread use of the obsolete provision by law enforcement authorities, calling it a “shocking state of affairs.” According to Senior Counsel Sanjay Parikh and advocate Aparna Bhatt representing the People’s Union of Civil Liberties (PUCL), around 1000 cases have been registered under Section 66A of the Information Technology Act[iv].  Acting with alacrity, the apex court demanded a response from the Centre at this illegal feat of judicial necromancy. The Centre has now instructed state governments to not register cases under the repealed section and withdraw any cases already registered.

Though the Supreme Court and the Ministry of Home Affairs acted swiftly to prevent any further injustice to occur as a result of this perversion of constitutional rights, the issue is a stark reminder of the lacuna that exists between judicial pronouncements and its everyday implementation. The case is a demonstration of the gulf that resides between the higher echelons of India’s legal system and the lives of ordinary citizens. It must be noted how an aggressive and ignorant police machinery uses arcane and obsolete legal provisions to harass citizens, many of whom remain unaware of the minutiae of the law. Complexity of the judgement is no defence for the police machinery to engage in such a blatant disobedience of the law and begs the question of how such a dazzlingly clear violation went without notice. The issue reveals the importance to sensitize police officers and other state agencies as well as the wider citizenry of the workings of law and move it out of an esoteric circle of judges, lawyers and scholars.

THE SHREYA SINGHAL CASE

Shreya Singhal, a Delhi based law student, filed the first petition challenging the constitutional validity of Section 66A. At the heart of the petition was the arrest and detention of two girls, Shaheen Dhada & Rinu Srinivasan of Palghar, for criticising the lockdown imposed in Maharashtra following the death of Shiv Sena supremo Bal Thackeray in 2012. The comments were posted on Facebook and predictably irked many people. The girls were detained for 10 days, initially charged for spreading hatred and later under Section 66A of the Information Technology Act. Though they were released later on, the case created a public uproar and highlighted the draconian powers vested in public officials by Section 66A. The right to free speech and expression, an essential foundation of any democratic society, was felt to be grossly violated by an over-enthusiastic police machinery.

Shreya Singhal argued that the law was in direct violation of Article 19(1)(a) of the Constitution which guaranteed the fundamental right to free speech and expression. The public interest litigation (PIL) filed by Shreya pointed out how the law was routinely abused (as in the Palghar case) to curb freedom of expression and crush dissenting views. The petitioners argued that though the section was initially enacted to prevent misuse of opportunities offered by information technology, it armed law enforcement agencies with vast powers which could be easily deployed against innocuous citizens. There was a veil of vagueness surrounding different terms of the section, lending itself to idiosyncratic interpretations. The law went beyond the ambit of the “reasonable restriction” clause specified under Article 19(2) and was, therefore, unconstitutional. Later on, several writ petitions were filed by individuals, NGOs and companies challenging the validity of Section 66A, which were clubbed together under the Shreya Singhal case and heard by a two-judge bench consisting of Justices Jasti Chelameswar and Rohinton F Nariman[v].  

On March 24, 2015, the learned judges struck down Section 66A, declaring the law to be unconstitutional “for being violative of Article 19(1)(a) and not protected under Article 19(2).” Three decisions were taken by the apex court; firstly, Section 66A was struck down in its entirety and deemed unconstitutional. Secondly, Section 69A of the Act was deemed constitutionally valid along with the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009. Thirdly, the bench also decided Section 79 to be valid, subject to some restraints. Section 79 provided that no social media “intermediary would be legally liable for any third-party information, data, or communication made available or hosted by him.”[vi]

This landmark judgement upheld the fundamental right to free speech and was a solid judicial pushback against an overzealous executive. The bench recognised that the tremendous powers with which the section armed the police machinery could be a chilling weapon against free speech and public discourse. The parameters employed by the section were so vague, and thus effectively limitless, that it transcended any ambit of reasonable restriction. By curtailing the dictatorial attitudes of the executive, the judiciary made sure that the contours of free speech were well-adapted to the Internet age. This judgement was coupled with the realization of the Internet’s extraordinary ability in transmitting information at lightning speed. This produced a culture where news was no longer the exclusive domain of news organisations. In such a climate, a legal provision granting limitless authority to the state would be a catastrophic disaster.

A FLOOD OF MUTINY

It is a settled principle of law that a judicial pronouncement striking down a legal statute immediately makes it invalid. It ceases to exist as a law and becomes non est. This is the powerful function vested in the judiciary as the guardian of the Constitution and empowering it to push back against state encroachment. Article 129 of the Constitution provides that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 215 extends this power to High Courts as well. Article 141 declares that the law declared by the Supreme Court shall be binding on all courts within the territory of India. This is consistent with the role the Constitution has spelled out for the judiciary: dispension of justice. To be an effective arbiter of justice, it is essential that the judicial declarations are carried out in full spirit of the letter. Compliance with the pronouncements of the court should be the highest priority for all agents of law, since any intended or unintended effect can only be ascertained following this.

However, as Senior Counsel Sanjay Parikh and advocate Aparna Bhatt pointed out, effective implementation of judicial decisions is far from the norm. This can be gauged by the massive number of cases that continued to be filed under Section 66A of the Information Technology Act, 2000 which was declared unconstitutional six years ago. Despite being stricken down as an invalid law, an ignorant law enforcement machinery continued to abuse this provision to harass citizens. Ignorance of the law is no excuse for this brazen disregard and the agencies of the state apparatus must be held accountable for flouting the verdict of the Supreme Court.  The fact that so many innocent citizens have been hauled up under a non-existent law has “shocked” the judiciary. The petition filed by the People’s Union for Civil Liberties brought this glaring issue to the forefront of the Supreme Court’s attention. The SC bench expressed its amazement that an entire legal apparatus – consisting of interior home ministries, the police, public prosecutors, prison authorities, lower courts and judges – should fail to comply with a verdict given in 2015. It must be probed whether the police machinery remained ignorant of the verdict or simply found the “dead” law to be an expedient way to haul up dissenters. Neither of the instances absolves the police machinery for its brazen insubordination to the apex court’s declaration. The law enforcement agencies have relied on an unconstitutional principle of parliamentary suzerainty to disregard the verdict in the Shreya Singhal case. 

 The Ministry of Home Affairs (MHA) has now directed states and union territories (UTs) to instruct all police stations under their jurisdiction to not register any case under the repealed Section 66A of the Information Technology Act, 2000 and drop any cases previously registered. The MHA notification has also pressed the need to sensitize law enforcement agencies to comply with the verdict laid down in the Shreya Singhal case in 2015. These are all commendable decisions but they must be accompanied with a sincere attempt to reverse the injustice caused by this perversion. The issue is a necessary reminder that the judiciary must not simply rest its laurels after delivering landmark judgements but must be cognizant of its effective implementation.

The case highlights the high-handedness of state agencies but is also a stark reminder of the lacuna that exists between judicial verdicts and its effective implementation. It demonstrates how the loudest of judicial declarations would be rendered meaningless without an effective mechanism for compliance. There is a pressing need to sensitize police officials and the wider state machinery of judicial developments. The police must not be allowed to exploit arcane and obsolete legal statutes to harass citizens. Oftentimes the people most abused by such illegal tactics belong to the underprivileged and discriminated sections of society with little to no idea of the minutiae of the law. The rule of law is severely discredited when it is seen not as a custodian of civil liberties but a tool for oppression. The case is an opportunity for the judicial system to reflect on the need to transform the legal landscape and bring it closer to the public it serves.

WAY FORWARD

The MHA notification issued to states and UTs highlighted the important need to sensitize law enforcement officials to comply with the orders issued by the Supreme Court. The importance of this function cannot be overstated.  The judiciary has been vested with the responsibility to dispense justice. The Supreme Court and lower courts are the custodians of the Constitution and a bulwark against an aggressive state. Compliance with the judgements laid down by the judiciary is a prerequisite for the functioning of any democratic society. Any impact of judicial decisions can be gauged only when laws laid down by courts are properly complied with. This is not the symptom of an overactive judiciary. In fact, this is absolutely consistent with the role envisaged for the judiciary by the framers of the Constitution. The law does not exist in a vacuum; it has a demonstrable impact on the very lives of the citizens. The gulf that exists between judicial declarations and the everyday lives of ordinary Indians must be bridged.

In this regard, the first step must be to disabuse the law enforcement agencies of their seemingly unbridled power. The police machinery exists to serve the people and redress issues that might affect law and order. It is not a license to harass citizens and levy charges for any form of feudal protection. The purpose of the police is to make sure that members of society act within the constraints imposed by law. This makes it essential that law enforcement agencies remain updated with the current developments in law and do not follow a principle of absolute parliamentary suzerainty. The flouting of the SC verdict in the Shreya Singhal case points to a deeper malaise pervading the justice system. While law enforcement officials must be hauled up for their blatant transgression, it is important to recognise the multitude of factors at work here. Mere bureaucratic arrogance does not explain the avalanche of proceedings instituted under Section 66A since 2015. Political pressures and promises of protection offered by unscrupulous political masters are also a driving force behind bureaucratic corruption. Section 66A is a useful tool for politicians to crush any dissent raised against them by a vigilant public. This too was recognised by the apex court in the Shreya Singhal judgement. When critiquing the agencies of state for their brazen violation, it is important not to simply absolve the state of any wrongdoing either.

Law enforcement agencies must be sensitized of their duties and responsibilities. Their legal knowledge must be on par with an experienced advocate to spare innocent citizens the trauma of going through a lengthy and costly legal battle. This is a short-term solution to the vexing issue of implementing judicial decisions. A long run solution would entail producing a better informed and legally literate citizenry. Citizens must be legally empowered to make sure their rights are not trampled on by an arrogant state apparatus.

Law must not remain confined to an esoteric circle of judges, advocates, legal scholars and academics. It must be accessible by the common man. In the case of Ajit Mohan vs. Legislative Assembly[vii], the Supreme Court commented that judgements should be crisp, clear and crisp so that it is easily understood by everybody. Brevity must be an essential quality of the verdicts laid down by the courts, both for easy comprehension by lower courts and better understanding by the common man. It is important to realize that judgements laid down with an “ivory tower” mindset may not reflect the facts of the ground and be satisfactory for the common individual. There is a wide gap between judicial pronouncements and the actual reality faced by millions of Indians. For the last six years, the police invoked a constitutionally “dead” law to harass citizens and make a mockery of the judicial system. Each and every individual hauled up under this obsolete law is owed an apology by the state. Though the MHA has now acted with alacrity and issued notices to states and UTs, it is dismal that such perversion of law occurs in the first place. It must also be noticed that the sorry state of affairs where judicial orders are brazenly disobeyed cannot be permitted in a functioning society. It goes against every tenet of good governance and constitutional integrity.


[i] ANDREW KEEN, THE CULT OF THE AMATEUR: HOW TODAY’S INTERNET IS KILLING OUR CULTURE (Doubleday 2007).

[ii] Dr. Upendra Baxi, A Sudden Flood of Mutiny? Aug 2nd INDIA LEGAL. 20-22 (2021).

[iii] Shreya Singhal vs. Union of India (AIR 2015 SC 1523).

[iv] Baxi, supra note ii

[v] Express News Service, Section 66A: 21 petitions that changed the system, THE INDIAN EXPRESS (July 14, 2021 7:40:35 pm), https://indianexpress.com/article/india/india-others/sec-66a-21-individuals-who-changed-the-system-2325682/.

[vi] Supra note iii

[vii] Ajit Mohan vs Legislative Assembly, National Capital Territory of Delhi (8 July, 2021)

Permission for selling green fire crackers ahead of Supreme Court’s Order

A petition was filed in Delhi High Court seeking permission to sell green firecrackers on the occasion of Diwali in the national capital by 50 licensed traders. They mentioned that in the Supreme Court’s order there was no total ban on the use of firecrackers. In the Apex court’s decision, it was clarified that the ban was only on crackers made of barium salts.

Justice Sanjeev Sachdeva, before whom the petition was listed on Saturday, posted the matter for hearing on Monday after granting time to the parties for seeking instructions in the matter. The Advocates for the defendants argued that considering the National green tribunal’s ban use of green firecrackers should also be prohibited thereby stating that such crackers could neither be sold nor transported out of the city. The Advocate for the petitioners, Advocate Mohini Musa, however argued that considering the Supreme Court’s judgement the traders must be permitted to sell green firecrackers.

A series of instructions were issued on Friday to ensure strict implementation of its order banning the use of barium-based chemicals in fire crackers and permitting only the use of ‘green crackers’. The bench consisted of Justices MR Shah and AS Bopanna.

The petition stated that the decision of Delhi Government imposing absolute ban on firecrackers is in violation of their fundamental rights to profess and continue their trade in environmentally friendly green crackers. They also mentioned that the decision was also in violation of the Apex court’s order which clarified that there was no ban on storage or use or sale of green firecrackers. The plea also read that the petitioners were holders of permanent licences for more than two decades and therefore, are responsible businessmen and undertake to conduct their business in strict accordance and compliance of the orders of the Supreme Court and the NGT.

The matter will further be heard on 1st November 2021.

Issues and Challenges Faced by the Govrnemt in Protection of Animal Rights

By: Shreya Srivastava

Assuming that animals are without rights and their treatment won’t have any moral significance is positively atrocious. Animals are not for the use of humans, for any experiment[i], entertainment or for food. There exists a right for animals to not be exploited by humans for their own purposes and to provide humane[ii] treatment to them. As the interest of humans is given consideration, the same should be given to non-human animals also known as animal liberation[iii]. People who work for animal rights require animals to be regarded as individuals and not as personal property. They often cover areas like aquariums and zoos as these are the places where most of the testing is done on animals and pets[iv]. Every human being has ethics and morals, the concept of animal rights is developed on the philosophy of morals and ethics.

 Jeremy Bentham was the great influencer of social and political change in England. He was the opinion for the welfare and rights of the animals, quoted that-

 “The question is not can they reason? Nor, can they talk? But can they suffer?”

Social movements bring people together on the aspect of cultural, political and religious topics, where people fight against injustice. Working on animals and their rights is a social movement where people work on their own conscience, which brings people together and work on the things which can’t talk but can still suffer injustice. Discrimination is not only on the basis of religion, race, caste, creed and colour but it is also on the basis of species which is called speciesism[v].

Every living creature on this Earth has the right to live, free from pain and torture. Animal rights is not merely a philosophy. It challenges society on the traditional views and morals that all non-human animals are made for the use of humans. Animals have an equal capacity as all humans. They can listen, understand, feel pain, pleasure and fear. When we humans do anything, which would interfere with their needs, we have a moral obligation to take them into account.

History shows us that people were working on animal welfare and their rights. In 1822, UK passed the first legislation ‘Martins Act’[vi] for the welfare and protection of the animals. The Act was mainly for horses and cattle. The society’s main focus was on enforcement of the law and when needed, there should be prosecution. Two years later, in 1824 there was an establishment of Society for the Prevention of Cruelty to Animals, which later in 1840, became Royal SPCA

In 1860, Mary Tealby established the Battersea Dog for all the strays in order to end their difficulty caused due to living on streets and thus became the first woman to found an organisation on British animal welfare[vii].

A book by Peter Singer named ‘Animal Liberation’[viii] has played an important role in motivating the activists of that time in increasing the movements on animals.

1970 was the time where the movement for animals started splitting into two i.e., animal welfare and animal rights. Many organisations in Europe and North America extended their focus from national to international issues and tackling higher issues like fur, whaling, dog eating, bear dancing, etc. In 1988, the first international campaign was started which was called the ‘No fur campaign’.

In India, a ban on the killing of animals started from Ashoka’s time which is during the 3rd century. After the great war when Ashoka became Buddhist in his edicts[ix], he expresses concerns over the many animals killed to serve him meals. Ashoka banned animal hunting and he established first of the animal rights laws. He made it illegal to kill animals like parrots, monkeys, squirrels, etc. for sacrifice[x].

Mahatma Gandhi said, “The greatness of a nation and its moral progress can be judged by the way its animals are treated.”

Central Government has introduced various acts to curb nuisance against animals. The main acts which were introduced to prevent cruelty against animals are ‘Prevention of Cruelty to Animals Act, 1960′ and Wildlife Protection Act, 1972[xi]. Section 50 of Wildlife Protection Act, 1972 gives authority to the Chief Wildlife Warden, Director, any forest officer, any officer authorized by them or any police officer who is not below the rank of sub-inspector to arrest any person and detain him without the warrant, but should have reasonable grounds to believe that the person has committed an act[xii]. Our Constitution of India also recognises the lives and welfare of animals under Article 51A(G) of Fundamental Duty, where every citizen of India is to protect wildlife and for all living creatures have compassion towards them[xiii].

ISSUES FACED

The Government of India has faced various issues regarding the protection of animal rights. Considering the past history and present, animals are treated for personal use and are been tortured. Despite the various laws enacted by the Government, animals are still used for cosmetic testing, kept in battery cages, forced to perform in a circus. For instance, after the stray dogs give birth, they are neglected and are thrown back from the place they were picked, despite being very vulnerable after surgery and are also subjected to cruelty. Animals are being used for food, the skin is used for clothes and are used for experimentation. They are burned alive, tarnished, used for entertainment in movies and circus and forced to do things which is horrible.

India is known for being the land of Elephants and Tigers. Hindu mythology talks about Gods riding animals like peacocks, tigers, rats, etc. There are various challenges which government has to go through. The first big challenge is lack of political will, neglect in wildlife, illegal hunting of animals for using it as a showpiece, religious practices which use animals as a sacrifice. With issues and challenges like these, there have to be stark measures taken but people first have to understand the truth and the adverse effect taking place in the environment. People are rational beings. Once they understand the stark truth, they will modify their behaviour towards wildlife. There are rays of hope, many organisations, individuals and groups have understood the reality and are trying to generate pragmatic solutions.


[i] Humane Society International. 2021. About Animal Testing. [online] Available at: <https://www.hsi.org/news-media/about/&gt; [Accessed 13 July 2021].

[ii] PubMed Central (PMC). 2021. Humane Treatment of Animals. [online] Available at: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1494506/?page=1&gt; [Accessed 13 July 2021].

[iii] Yourdictionary.com. 2021. Animal-liberation Meaning | Best 1 Definitions of Animal-liberation. [online] Available at: <https://www.yourdictionary.com/animal-liberation&gt; [Accessed 13 July 2021].

[iv] US Legal, I., 2021. Animal Rights Law and Legal Definition | USLegal, Inc.. [online] Definitions.uslegal.com. Available at: <https://definitions.uslegal.com/a/animal-rights/&gt; [Accessed 13 July 2021].

[v] Bbc.co.uk. 2021. BBC – Ethics – Animal ethics: The ethics of speciesism. [online] Available at: <http://www.bbc.co.uk/ethics/animals/rights/speciesism.shtml&gt; [Accessed 13 July 2021].

[vi] http://www.animalethics.org.uk/i-ch6-4-martin.html ‘Martin Act’ was introduced by Richard Martin who was an Irish Politician also a human and animal activist. The Act was the first parliamentary law to proscribe cruelty to animals in any country. The Act was introduced to ban all the ill-treatments that are done on animals mainly cattle and sheep.

[vii] Ibid.

[viii] PETA. 2021. What Is Animal Liberation? Philosopher Peter Singer’s Groundbreaking Work Turns 40 | PETA. [online] Available at: <https://www.peta.org/about-peta/learn-about-peta/ingrid-newkirk/animal-liberation/&gt; [Accessed 13 July 2021].

[ix] http://think-differently-about-sheep.com/Animal_Rights_A_History_King%20Asoka.htm edicts – the fourteen rock edicts, minor rock edicts, the seven pillar edicts.

[x] Ibid

[xi] Furtado, R., 2021. Animal rights in India: The most underrated topic of environmental law – iPleaders. [online] iPleaders. Available at: <https://blog.ipleaders.in/cruelty-animals-india/&gt; [Accessed 13 July 2021].

[xii] 2021. [online] Available at: <https://indiankanoon.org/doc/702677/&gt; [Accessed 13 July 2021].

[xiii] iPleaders. 2021. A compilation of animal protection law in India or animal protection laws. [online] Available at: <https://blog.ipleaders.in/animal-protection-laws-in-india/&gt; [Accessed 13 July 2021].

CAVEAT EMPTOR

Caveat Emptor is an ancient Latin maxim relevant in common law that means ‘let the buyer beware’. It is used in theresolution of disputes arising on the question of goods, services and property. In contract law, it cautions the buyer and places him into an obligation to perform the due diligence and examination before making the purchase. It is also a vital rule in the Sale of Goods Act, 1930 wherein it holds the purchaser responsible for his decision to purchase.

In the case of Mariappan v Inspector General of Registration, Department of Registration, Chennai and others, the court applied the principle of caveat emptor in stating that the buyer ought to have exercised due diligence before buying the item.

Similarly, in the case of Rekha Sahu v UCO Bank and Others, the court applied caveat emptor to state that the buyer must verify the title of the property before purchase or else would invite complications.

However, the use of caveat emptor has declined with the rise of consumerism and Consumer Protection Laws in business and commercial transactions in India. Instead, contemporary times find the principle to be replaced by that of caveat venditorThis was necessitated by the fact that the realm of modern trade and commercial relationships were changing and the principle ought to change in line to it. This maxim, meaning ‘let the seller beware’ places an obligation on the seller to disclose all appropriate information of the item of sale, especially with regard to deformities. It is now the duty of the seller to make sure that the buyer makes an informed choice and to compensate for defective products. It also places an implied warranty on each item such that the buyer need not perform his due diligence before purchase of the same.

A case of such nature is Peter Darlington Partners Ltd vs. Gosho Co. Ltd, wherein there was a contract for the sale of canary seeds subject to customs of the trade; the court held for rebate on the price of the seeds due to impurities present in them. Here, the defective nature of the product of sale invited remedy for its buyer.

In conclusion, the principle of caveat emptor has evolved over time into that of caveat venditor, which is widely relevant in disputes on goods, services and property disputes.

ECI Objects to PIL Sayan Banerjee v. The Election Commission of India and Ors on the grounds of maintainability

The Election Commission of India issued a notification according to which in 159-Babanipur Assembly Constituency, the by-elections would be conducted on 30th September. The fact that the special request was received from the Chief Secretary, Government of West Bengal was also highlighted. The statement by Election Commission of India specified that while all other constituency by-elections were not being held, the by-elections would be held based on the request of Chief Secretary, Government of West Bengal.

A Public Interest Litigation (Sayan Banerjee v. The Election Commission of India and Ors)has been moved challenging this decision of the Election Commission of India. This plea was filed by Sayan Banerjee, through Advocate Ankur Sharma with the view that holding such by-elections is unreasonable considering the Covid-19 situation and that fact that it unreasonable of the Chief Minister to interfere with the free and fair democratic system. The plea further alleges that the reason behind this request is create a situation to favour the Chief Minister of the State (Mamata Banerjee) to save her from the from the constitutional consequence under Article 164(4) of the Constitution of India, 1950.

Article 164 (4) of the Indian Constitution states that: ‘A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister’

The PIL prays for an interim order of injunction in respect of the Memo dated 04/09/2021 issued by the Election Commission of India in respect of Bhabanipur Assembly Co and for the quashing of the memo dated 04.09.2021 issued by the Election Commission of India and all subsequent action/actions taken on the basis of the said decision in respect of 159 Bhabanipur.

According to the most recent development in this matter, the Election Commission of India has challenged the maintainability of this Public Interest Litigation. advocate Sidhant Kumar for the defendants argued that pursuant to Article 329 of the Constitution no petition regarding electoral matters can be entertained by the Court until the declaration of the election results.

Article 329 of the Indian Constitution: ‘Bar to interference by courts in electoral matters Notwithstanding anything in this Constitution

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court;

(b) No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.’

SURESH SHAH V. HIPAD TECHNOLOGY INDIA PRIVATE LTD.

PARTIES OF THE CASE

  • PETITIONER: Suresh Shah
  • RESPONDENT: Hipad Technology India Private Limited

CITATION: Arbitral Petition (Civil) No. 08/2020

BENCH: Justice A.S. Bopanna, Justice V. Ramasubramanian

FACTUAL BACKGROUND:

There was a dispute between the petitioner and respondent regarding the sub-lease of a premise. The sub-lease deed between the parties contained a clause that stated that in case of any dispute, the same should be resolved by the process of Arbitration. The petitioner approached the Court under Section 11(5) of the Arbitration and Conciliation Act, 1996 seeking the appointment of a Sole arbitrator for resolving the dispute which had arisen between the parties in relation to the Sub-lease.

ISSUE:

Whether the dispute arising under the Sub-lease deed being governed under the Transfer of Property Act, 1882 (TP Act) is arbitrable or not under the Arbitration and Conciliation Act, 1996?

DECISION:

The Hon’ble Supreme Court concluded that as the tenancy dispute was not subject to any special statutes, it is hence arbitrable under TP Act, 1882. Further, it held that considering that the respondent neither replied to the said notice nor did he object to the arbitrator proposed by the petitioner, the petition for appointment for Sole arbitrator was hence allowed.

REASONING AND ANALYSIS:

The Apex Court considered the provisions contained in Section 111, 114 and 114A of the TP Act, 1882. These provisions denote the manner in which the determination of lease would occur. It also determined the forfeiture, in case the lessee/tenant broke expressed conditions, agreed between the parties, or as provided in law. Thus, it is a provision enabling the exercise of equitable jurisdiction, in appropriate cases as a matter of discretion.

The Supreme Court also analysed a position settled in Namdeo Lokman Lodhi v. Narmadabai and others and clarified that when any disputes arise between the landlord and tenant regarding the determination of lease under the TP Act, 1882, the landlord can secure the possession of the leased property by instituting a suit in the Court having jurisdiction. However, if the parties agreed upon any dispute resolution through arbitration, the landlord would be entitled to invoke the arbitration clause and make a claim before the learned arbitrator. Even in such proceedings, if the circumstances as contained in Section 114 and 114A of TP Act, 1882 arise, it can be brought up before the learned Arbitrator who would take note of the same and act in accordance with the law and pass the award.

Another three-judge Bench of the Supreme Court referred to the law laid down in Vidya Drolia and clarified why arbitrability of tenancy disputes is contingent on whether the lease agreement is governed by the Transfer of Property Act, 1882 or by special statutes. It stated that the tribunal’s jurisdiction is limited to disputes, concerning and arising, from the term and conditions of a lease agreement.

Therefore, insofar as matters related to eviction or tenancy governed by any special statutes are concerned, where the tenant enjoys special protection against eviction, the Court/Forum specified and conferred jurisdiction under the statute alone can adjudicate such matters. Hence in such cases, the dispute is non-arbitrable.

Similarly, if the special statutes do not apply to the premises/property and the lease/tenancy created thereunder is where the cause of action arises to seek for eviction and in such transaction, if the parties are governed by an Arbitration Clause, the dispute between the parties is arbitrable.

The Court also observed that the said arbitration qualifies as an International Commercial Arbitration as the petitioner is a citizen of Kenya and the dispute is arbitrable as the rights of the tenant were not protected by any special statute where the tenant enjoys special statutory protection, therefore, there would be no impediment for resolving the dispute through arbitration.

CONCLUSION:

The judgement must be explicitly read in the context of landlord-tenancy disputes under specific provisions of the Transfer of Property Act, 1882. Caution must be exercised in considering the nature of the dispute under action. The judgment cannot be broadly applied to mean that all provisions under the TP Act, 1882 are arbitrable.

Ex Post Facto

The Latin maxim ex post facto literally translates to ‘arising from past facts’ or ‘out of the aftermath’. In the legal scenario, the ex post facto law can retroactively change the legal consequence of an action that was committed before the enactment of the law and was considered lawful in the past. 

However, there have been objections to this law as it is seen as a violation of the rule of law, and many constitutional democracies have safeguards against it. Article 20 (1) of the Constitution of India enshrines the judicial right of a person to not be convicted of an offence that did not violate the law at the time that it was committed, while immunizing the person against an enhanced penalty than that incurred when convicted, acting effectually as a prohibition to the ex post facto law. 

With reference to the Rattan Lal v. State of Punjab case, the boy charged with the offence of outraging the modesty of a girl and trespassing was sentenced to six months of imprisonment. Meanwhile, with the enforcement of the Probation of Offenders Act, 1958, stating that an individual below the age of twenty-one years cannot be imprisoned. With regard to this Act, the accused pleaded that he be considered under the provisions of the reformed Act. This plea was dismissed citing that it was an ex post facto law, although, prohibition to ex post facto laws when beneficial to the accused does not fall under the ambit of Article 20 (1).

An exception to the prohibition, and a relevant case for the ex post facto law is that of Jawala Ram v. the State of Pepsu. There was a retrospective imposition of special rates for the unauthorised use of canal water in this scenario, not impinged by Article 20 (1).
Ex post facto laws have been considered a privilege for legislators, however, in the present scenario, apex courts play a significant role in preventing the abuse of the law, and protecting the rights of the people.

OFFENCE AGAINST HUMAN LIFE (SEC 349-377)

  1. Criminal force and assault (Section 349- 358)
  • Force (Section 349): the section lays that a person is said to use force to another if he causes motion, with anything which that other is carrying or with anything so situated that such contact affects that other’s sense of feeling.
  • Assault (Section 351): This section defines any expression or preparation intending, or knowing it to be likely, that such gesture or preparation will cause any person present to use criminal force to the latter, is alleged to commit an assault.

Some aggravated forms of assault:

  • Section 353: to stop a public servant from discharging his duty.
  • Section 354: to a woman with intent to outrage her modesty.
  • Section 355: with intent to dishonor a person.
  • Section 356: in attempting theft.
  • Section 357: to a person, in attempting wrongfully to confine that person.
  • Assault with intent to outrage the modesty of a woman (Section 354).
  1. Kidnapping, Abduction, Sale of minors, slavery and forced labor
  1. Kidnapping from India (Section 359-360 and 363): any person beyond the limit of India, without the consent of that person or of some person legally authorized to consent on behalf of that person.
  2. Abduction (Section 362)

It means intention to commit an offence is penalized. Abduction with the intention to rob or to murder becomes an offence. Two essentials of abduction are one is forcible compulsion or inducement and second is the object of such compulsion or inducement must be to make the person go from any place.

  1. Kidnapping from lawful guardianship (Section 361-363) means
  • A minor male who is under 16 years of age
  • A minor female who is under 18 years of age
  • A person of unsound mind
  1. Slavery and Trafficking (Section 370-371)

This section covered the offences which are given below:

  • Trafficking of a person
  • Exploitation of a trafficked persons
  • Habitual dealing in slaves
  1. Sale or purchase of minors for immoral purposes (Section 372-373)
  2. Unlawful compulsory labor ( Section 374) 
  1. Section 375- Offence of Rape

Section 375 of the Indian Penal Code states that, Sexual Intercourse with women without her consent is an offence of rape.

  1. Against her will or consent.
  2.  With her consent, but when someone forcing and doing it forcefully and she agreed in fear of death or of hurt.
  3.  With her consent but when the man knows that he is not her husband and the girl believes that she is lawfully married to him and gives consent to him.
  4. With her consent but that time she was intoxicated or in the state of unsound mind.
  • Exceptions to Section 375 of Indian Penal Code:

(1) If a woman does not deny, then it will be regarded as the sexual activity.

(2) A medical procedure shall not be considered as an offence of rape.

(3) If wife is older than 18 years of age then Sexual intercourse by a man with his wife not considered as a rape.

Case Law- Tulsidas Kanolkar v. The State of Goa

Facts: 

In this the victim was not mentally stable and that’s the reason accused took advantage of her mental condition and has sexual intercourse.no one was aware about this even not her family also. When the girls found pregnant then family knows about incident and the case was filed against accused.

Judgment:

The judgment was passed in favor of victim. And he was held liable that he took advantage of her condition. In such incident no question of consent arises. He was liable for punishment with fine of rs. 10000 and 10 years of imprisonment.

  1. Unnatural offence (Section 377)

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for life or for 10 years and fine.

This section provides punishment for what is called as sodomy, buggery and bestiality.

Bombay HC to hear plea against Maharashtra State’s decision to permit only persons with double vaccination to enter certain places/ use local trains

A petition was filed by Activist FerozeMithiborwala before the Bombay high Court against Maharashtra government’s decision which permitted only those people who have been fully vaccinated for Covid to use local trains, visit malls and workplaces.

The under Secretary and the Chief Secretary of the state issued a Standard OperatingProcedure on the 10th and 11th August which prohibited those who hadn’t taken both the vaccines from travelling in local trains or visiting malls or workplaces. They added that it was mandatory for shops, offices and other places to ensure that their staff had taken both the doses as well by 15th August.

The petitioner stated that these circulars were discriminatory towards those who hadn’t taken vaccination under Articles 14, 19 and 21 of the Constitution.

Art.14: Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Art 19: Protection of certain rights regarding freedom of speech etc:

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) omitted

(g) to practice any profession, or to carry on any occupation, trade or business

Art.21: Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

He added that getting vaccinated is a choice of the public in accordance to the centre’s answer in the Lok Sabha on the 19th of March 2021. In the petition it was also stated that the SOP had also not considered those who had covid and have developed anti-bodies which is more effective than the vaccine derived immunity.

The petitioner relied on various High Court judgements from different states which had ruled that vaccine cannot be made mandatory. It was added in the plea that before the pandemic Delhi and Kerala HC had ruled that vaccines cannot be made mandatory.

The activist in his plea had prayed for an appropriate action to be taken against the officers of the state of Maharashtra as per the provisions of National Disaster Management Act as well as IPC and that all people within the Mumbai metropolitan region be allowed to use local transportation irrespective of the vaccination.

Offences against human life

  1.  Abetment of suicide (Section 305 and 306)
  • Section 305 – abetting suicide committed by a person under 18 years of age, or by an insane or a delirious person, or an idiot or a person in a state of intoxication. Such offences are punishable by death or imprisonment for life, or imprisonment for 10 years and fine.
  • Abetting suicide committed by any other person. 
  1.  Attempt to commit murder, culpable homicide or suicide (section 307-309)
  2. Attempt to commit murder (S.307)

If a person does any act with such intention or knowledge and under such circumstances that if he by that act caused death, he would by guilty of murder; the person is punishable with imprisonment to ten years and fine.

  1. Attempt to commit culpable homicide (S. 308)

Attempt to commit culpable homicide is penalized by section 308 means doing any act with such intention or knowledge and under such circumstances that if the offender caused death by the act, the person  would be guilty of culpable homicide not a murder.

  1. Attempt to commit suicide (S.309)

Attempting to commit suicide and doing an act towards the commission of the offence is punishable with simple imprisonment for one year, or fine or both.

  1. Being a Thug (Section 310 and 311)

A thug is a person who has been habitually associated with others for the purpose of committing robbery or child-stealing by means of, or accompanied with murder. Gangs of person habitually associated for the purpose of murdering travellers of others in order to take their property are called thug. 

Habitual association with others with the intention of committing either robbery or child stealing accompanied with murder, constitutes this offence. If it is proved that the thug has committed murder, he will be punishable for murder.

  1. Offences relating to the birth, death, exposure of children (S. 312-318)

Offences relating to the birth, death of children are sub-divided into the following.

  1. Causing miscarriage ( Section 312-314)

-Voluntarily causing a woman with child to miscarry, otherwise than in good faith for the purpose of saving the life of the woman and without her consent.

-Act done with intention and cause a miscarriage.

  1. Injuries to unborn child (section 315-316)

– Section 315: doing an act which is not act in a good faith, with intention to prevent a child being born or to cause it to die after birth.

-Section 316:  intentionally create situation which caused the death of a quick unborn child by an act amounting to culpable homicide.

– Section 317: exposure and abandonment of infants (a child under 12 years) by parents or persons having care of the child, with the intention of wholly abandoning it is an offence.

– Section 318: intentionally hide the birth of a child and by secretly burying or otherwise disposing of the dead body of the child, and after such incidents child dies before or after or during the birth, is an offence under section.

  1. Subjecting wife to cruelty (Section 498 A)

If a husband or any relative of the husband of a woman subjects the woman to cruelty, he becomes punishable with imprisonment for three years.

  • Any intentional act which is dangerous in nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health.
  • Harassment of the woman, whether such harassment is with a view to coercing her to meet any unlawful demand for any property or valuable security or is on account of her failure to meet such demand.
  • The greed for dowry is at the root of the offence where the husband continuously held out threats of taking away the son and harassing the wife to meet his dowry demands, to the extent of compelling the wife’s parents to sell away their property, it was held that such treats and harassments are punishable under section.
Create your website with WordPress.com
Get started