Odisha v. Andhra Pradesh: Contempt of Court?

The State Government of Odisha has approached the apex court for initiating contempt proceedings against the State of Andhra Pradesh. The proceedings are the consequence of a border dispute. The former has alleged the latter of violating the existing state of affairs by taking over certain villages belonging to itself as agreed upon between the two, more than 50 years ago. The advocate presenting the case before the Chief Justice termed it as a grave constitutional crisis.

The villages in question are that of Kotia group and the same were the subject matter of a former suit filed by the Odisha Government in 2006. However, the suit was dismissed as it was considered non-maintainable under Article 131 of the constitution that vests the Supreme Court with original jurisdiction over any dispute arising between the states or between the center and state. Nevertheless, the order passed by the Court in the matter, recorded the earlier undertaking given by both the states in 1968 to maintain status quo. It is the violation of this undertaking agreed upon with the consent of both States, mentioned in the order that gives rise to the contempt petition. The AP government is not only alleged of taking over the three Gram Panchayats but also of holding elections in these territories in the near future. Odisha claims that the villages have always been under its administrative control and that it has undertaken several developmental activities in the region over the years. It further relies upon the Electoral Rolls prepared by the Election Commission of India to argue that the voters of these villages fall within Koraput Constituency of Odisha.

“Contempt” literally means disrespect or disgrace. The judiciary of India that is the Indian legal System hold an important position in law. The legal system of India is based on the Rule of Law which means that the law is supreme. To protect the justice system, laws on contempt of court have been made wherein the Supreme Court under Articles 129 and the High Court under Article 215 have been given the powers to adjudicate and punish for contempt.

In accordance to the Contempt of Court Act, 1971 section 2(a) there are two types of contempt :- Civil and Criminal contempt of court. Criminal contempt is when there is obstruction of judicial proceedings or scandalizing judicial proceedings whereas Civil contempt of court is when there is willful disobedience of any judgement, decree, writ, etc. made by the judge as in the present case the accused has been accused with.

The petition seeking urgent listing was agreed to be heard by the Court today i.e. 12th February, 2021.

PIL Dismissed Challenging The Validity of Sedition

The Apex Court on Tuesday dismissed a plea challenging the colonial law of Sedition provided under S. 124-A of the Indian Penal Code. A group of advocates was heard by a 3 judge bench presided by Chief Justice of India, SA Bobde. The provision reads as follows:

S. 124A. Sedition.- Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. 

The petitioners in their plea contended that this draconian law of the British era was put to unlawful and indiscriminate use in recent years especially against media, students, and women. They further contended that continuance of this provision without adequate safeguards as provided under The Unlawful Activities (Prevention) Act, 1967 (UAPA) is unreasonable and unwarranted. Thus, praying that the said provision needs to be re-examined with the changing circumstances in accordance with the tests of proportionality, necessity and arbitrariness and struck down as it stands in violation of the fundamental rights enshrined under Article 19 (1) (a) which states all citizens shall have the right to freedom of speech and expression and Article 21 – Protection of Life and Personal Liberty, of the Constitution.

The plea also alternatively sought directions to the Government to instruct their respective Heads of Police and D.G.Ps to ensure that the laws declared by the Hon’ble Court in Kedar Nath and Balwant Singh cases are strictly followed.In the Balwant Singh case (1995) the court ruled that merely shouting slogans, “Khalistan Zindabad”, does not amount to sedition. In the Kedar Nath case (1962) the Court observed that penalization of sedition is a constitutionally valid restriction on the right to freedom of expression only when the words are intended to disturb public peace by violence.

Nevertheless, in the present case, it dismissed the plea of the advocates following the precedent laid down in Kusum Ingots case which states that a statute cannot be challenged without cause of action. Thus, the plea was set aside by the Court for want of a concrete case.

Delhi Development Authority v D.C. Sharma

Appeal No. 205 of 2010

Facts Of The Case

There was an ad published by the petitioner (Delhi Development Authority/DDA) under the Expandable Housing Scheme in 1996. The respondent (DC Sharma) paid a sum of Rs. 15,000 according to the terms and conditions of the scheme as published by the petitioner. The respondent was allotted a flat in Narela, Delhi, and was communicated through a letter. All the details of the flat regarding the amount was mentioned in the letter. Again, the respondent submitted another Rs. 15,000 as the confirmation money to the petitioner. The respondent informed the petitioner via a letter saying he has changed his residential address and all official communication must be done via the new mentioned address. He also added that the respondent is a government servant, and to secure a loan from his department he needs the official mortgage permission. Later on, even after visiting the office of the petitioner, no communication was made to the respondent. The respondent filed an RTI to seek information regarding the same. After this preliminary inquiry, the respondent received a letter from the petitioner saying that the flat was allotted to someone else over time. The respondent aggrieved by the letter filed a consumer complaint under the District Consumer Dispute Redressal Forum, New Delhi.

Issue:

  1. Whether the act was done by DDA, a statutory authority was against public interest or not?
  2. Whether the respondent deserves hefty compensation from the petitioner for harassing him for more than 18 years or not?

Judgment:

The Hon’ble court held the petitioner is liable for unfair trade practices and causing impalpable harassment of the respondent and imposed punitive damage amounting to Rs. 5,00,000/- on the petitioner and other amounts. The court considered that the petitioner’s claim is baseless and is trying to distract the court from the misdemeanor of the authorities. It is a way of covering up the negligence of public officials tormenting the respondent for over ten years. The act commissioned by DDA was against the public at large and hence the damages incurred should be taken from the pockets of dishonest officials who are taking advantage of this “meritless litigation”. The appeals of DDA were dismissed and the impugned order of state commission was upheld.

Conclusion:

This case embarks upon the importance of Section 21 of the Right to Information Act. The Hon’ble court saw through the delinquencies of the statutory department and provided relief to the aggrieved party. The public officials are supposed to help the aggrieved party and not take advantage of them by performing negligent acts at cost of the general public.

Human Rights Commission- Its Binding Decisions on the Government

On 12 October, 1993 The National Human Rights Commission (NHRC) of India was established under the Protection of Human Rights Act (PHRA), 1993. It is constituted to proactively promote and protect human rights in India. Section 2(1)(d) of the PHRA defines Human Rights as the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.

Recently, a full bench of the Madras High Court consisting of Justices SVaidyanathan,V Parthiban and M Sundar ruled that the orders and decisions given by the Human Rights Commission under S. 18 Protection of Human Rights Act, 1993 are binding in nature making them mandatory for the government and the State to follow. The ruling was pronounced in the landmark case Abdul Sathar v. The Principal Secretary to Government.

The judgement mentioned that the recommendations of the Commission were to be treated as adjudicatory orders, legally and immediately enforceable. The judgement further states that if the concerned Government or authority fails to implement the recommendation of the Commission within the time stipulated under Section 18(e) of the Act, the Commission can approach the Constitutional Court under Section 18(b) of the Act for enforcement by seeking issuance of appropriate writ, order or direction. In cases where the State is aggrieved by the decision of the commission, its only remedy is seeking judicial review by the Courts. It further empowers the Commission, based on its findings, in cases of violation of human sights by a public servant, to recommend the State government to undertake any of the following measures-

First, was to pay compensation to the complainant or victim or the families of the complainant and victims. Secondly, to initiate proceedings for prosecution or such other suitable action against the concerned person or persons and lastly to take such further action as the commission may think fit.

The judges were of the opinion that there was a need of introducing statutory changes so that the above mentioned act becomes an independent law aiding the human rights commission in accomplishing and effectively enacting the recommendations. Due to the absence of inbuilt provisions in the act, their anxiety was that the act could be trifled with thereby suggesting suitable amendments. 

The main purpose of this is to ensure that the commission must not lose its independence, being a high judicial body and become subordinated to the executive and further, ensure that the recommendations of the Commission are not to be construed as recommendatory, open to acceptance or non-acceptance by the government.

Karnataka Power Transmission Corp v Ashok Iron Works Private Ltd.

Civil Appeal no. 1879 of 2003

Facts:

The respondent (Ashok Works Pvt Ltd) applied to the appellant (Karnataka Power Transmission Corporation or KPTC) for the supply of electricity. The KPTC failed to comply and the respondent filed a complaint with Karnataka high court. Later agreeing to the court order the respondent paid extra monetary demand but the KPTC failed to supply the electricity. The respondent filed a consumer complaint claiming damages but the KPTC argued that it is a commercial unit and not a consumer and hence the claim is invalid. The district court ordered in favor of the appellant but the Ashok works appealed to the state commission that held the complaint valid stating that the respondent is a consumer. The KTPC appealed in the supreme court of India arguing on two factors:

Issues:

  • Whether Ashok works, a private company is a consumer under section 2(1)(d) of the Consumer Protection Act or not? and a person under Section 2(1)(m)
  • Whether the dispute between both the parties comes under the ambit of Service as defined under section 2(1)(o) of the same act or not?

Judgment:

The court held that the term “person” in the act is not restrictive but it is exhaustively interpreted as “including them”. The provision hence is inclusive and not exclusive. The court stated that the legislature deliberated not to exclude a juristic person like a company, it should involve both corporate and incorporated companies. It was held that a private company is within the meaning of section 2(1)(d) read with Section 2(1)(m).

The court differentiated that ‘supply of electricity’ is not a sale under section 2(1)(d) but is a form of service under section 2(1)(o). So KTPC not supplying the electricity constitutes deficiency of services and compensation claimed by the respondent is valid.

Conclusion

The Hon’ble court interpreted the terms “person” and “service” to provide justice to the company. Private companies can now fall under the definition of a “person” under the act. This interpretation enables companies to file a complaint under The Consumer Protection Act and claim damages for the deficiency of services.

Insider Trading

Insider trading means possession and misuse of unpublished price sensitive information (UPSI) relating to the securities of the listed companies by the privileged few for their personal gains before the information is published and comes to the notice of investors. Possession of such vital information places them in a position advantageous to them compared to the others in the share market while evaluating the risks involved in the investment. Thereby for the interest and betterment of the civilians insider trading needs to be prohibited.

Keeping this in mind, in the year 1992, Securities and Exchange Board of India (SEBI) formed SEBI (Insider Trading) Regulation, 1992. After the introduction of the Regulation Act, in 2002 it amended and rechristened the regulation to SEBI (Prohibition of Insider Trading), 1992 and finally in the year 2015 it was thoroughly and exhaustively amended to SEBI (Prohibition of Insider Trading) Regulation, 2015 which was applicable from 1st April, 2019.

Rakesh Agrawal v. Securities Exchange Board of India is one of the landmark judgments relating to insider trading. The facts of the case were that Rakesh Agrawal was the managing director of ABS Company Pvt. Ltd. The company was in negotiation with a German company. Rakesh had UPSI of the German company. It was alleged that Rakesh’s brother-in-law had purchased shares of ABS Company and had given it to the German company as an open offer which in turn aided ABS. The 51% of shares that were owned by the German Company were not public, thus, making ABS an insider. SEBI then directed that ABS had violated Section 3 and 4 of SEBI Act and Rakesh was ordered to give Rs. 34 lakhs and SEBI also directed the criminal proceedings against him under section 24 of the SEBI Act. However, when he approached the court, it was concluded that since, he had worked in the best interest of the company the tribunals order was taken back.

Similarly in SEBI v. Sameer C Arora a case of 31st March 2004, Mr. Arora was accused of insider trading. He was prohibited from investing and taking active part in securities market for a period of 5 years. However due to the absence of sufficient evidence the appellate court set aside the order of the tribunal.

One of the largest cases of India in insider trading is Indiabulls insider trading case. In this case, the executive director was accused of unlawfully making Rs. 87 lakhs by trading in Indiabulls, the venture, when having UPSI. The husband and wife both were accused of being insiders and making profit out of the information. The SEBI, then ordered that a Strict Criminal Action be taken against the venture and the husband along with his wife had to give Rs. 87.4 Lakhs both jointly or severally. It was also added that without the prior SEBI permission no debts should be taken.

Largest number of cases of insider trading was in the year 2020-2021 as compared to previous years. In recent days Mr. Kishore Biyani, CEO of the Future Group, along with a few others was found guilty of insider trading. They were hence by SEBI barred from the securities market for one year along with which they had to pay a penalty of more than Rs. 20 Crore. Hopefully, the latest amendments and stringency of the regulation will bring more awareness to the people and prevent them from conducting, or being a part of illegal activities such as insider trading.

Stringency in the Indian Bail System

Conditional release of a person accused of a crime pledged for the appearance in court on a due date is known as bail. There are three kinds of bail in India. Regular bail, interim bail and lastly anticipatory bail. Regular bail is when a person accused is in police custody after which bail is applied for under section 437 and 439 of the Criminal Procedure Code (CrPC). Interim Bail is granted for a short period of time before the regular or anticipatory bail is granted and anticipatory bail is granted under section 438 of the CrPC by either the sessions Court or the High Court when a person feels that he might be arrested of a non-bailable offence committed by him.

Different Acts have various other restrictions while granting a bail intern making bail under one act more stringent than the other. For instance, UAPA – Unlawful Activities (Prevention) Act, 1976 covers bail under section 43D (5) and Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985 covers it under Section 37. In accordance to UAPA bail cannot be granted if there are reasonable grounds to prove that the accusation against the accused is in its first appearance that is prima facie true. However, Section 37 of NDPS says that bail cannot be granted even if there are strong reasons to believe that the accused may not be guilty and is least likely to commit any offence when granted bail. This thereby makes laws relating to bail in NDPS more stringent than UAPA. Considering the harsh conditions for bail and its effects on constitutional rights the court has made speedy trials to protect the innocent people.

National Investigation Agency vs Zahoor Ahmad shah Watali is one of the case laws where there was sufficient reason to believe that the accusation on the accused was prima facie true thereby applying Sec 43D (5) of UAPA the bail was denied. Another case proving importance of Speedy trial is Union of India v. K.A Najeeb. A 3-judge bench of the Apex Court on Monday granted bail to one of the accused of the 2010 Palm Chopping Case, K.A Najeeb. He has been accused of offences under the Indian Penal Code, Explosive Substances Act, and UAPA. The court held that Section 43D (5) of UAPA will not act as a bar to the ability of Constitutional Courts to grant bail on the ground of violation of Fundamental Right to Speedy Trial envisaged under Article. 21 of the Constitution. The court also observed that the National Investigation Agency (NIA) had failed to take any step towards screening the 276 witnesses and that the accused has already spent more than five years in imprisonment. The charges themselves were framed on 27.11.2020.

The court further observed that the rigorous use of S. 43D (5) will meltdown where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Thus, the court in the exercise of its appellate jurisdiction upheld the decision of grant of bail of the Kerala High Court imposing additional conditions.

Pre-natal Sex Determination : An alarming surge in India

Pre-natal sex determination is the practice of determining the sex of the foetus before birth through ultrasonography. Various countries have adopted this practice, but in a few countries such as India, this practice has led to female foeticide, i.e., determining the sex of the foetus and undergoing an abortion in case the sex of the foetus turns out to be female. Now there are various stereotypical reasons which pave the ways for female foeticide, some of the reasons that are unfortunately believed and accepted by some Indians are: having a girl child is a burden as they have to pay dowry while getting her married, girl child won’t carry the family name, a girl child may bring shame to the family by eloping, etc. These beliefs and mentality of the people is the prime reason for an alarming increase of female foeticide in India.

The Government of India, to address this issue has enacted the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT Act). According to section 5(1) of this Act, no person can conduct a pre-natal diagnosis without the concerned pregnant woman’s consent, and even if the diagnosis has been conducted according to section 5(2), “No person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs or in any other manner“. Most importantly section 6 of the PNDT Act prohibits conducting pre-natal diagnostic techniques to determine the sex of a foetus. Further section 23 of this Act provides for imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees in case of violation of the provisions of the PNDT Act.

Even after all the enactments, guidelines, punishments, etc. given for determining the sex of the foetus, surveys show that female foeticide is still on the rise. In the year 2016, a global study on female infanticide by Asian Centre for Human Rights gave a report titled “Female Infanticide Worldwide: The case for action by the UN Human Rights Council”, which places India in the 4th place in having the highest female foeticide with a sex ratio of 112 males/100 females. Apart from this in the year 2020, a United Nations report stated that 4.6 lakh females were missing at birth in India each year from 2013 to 2017.

Bringing the ban of pre-natal sex determination to light, in the recent judgment of Rekha Sengar v. State of Madhya Pradesh, Justice Mohan M. Shantanagoudar, Vineet Saran and Ajay Rastogi dismissed the Special Leave Petition stating the prenatal sex determination to be a grave offence and having a serious effect on the society at large. In the present case, the accused approached the Apex Court for the grant of Bail. The petitioner was charged under certain relevant provisions of the Indian Penal Code, Medical Termination of Pregnancy Act, 1971, and under the provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PC&PNDT Act). The bail was rejected by the Sessions Court as well as the High Court of Madhya Pradesh. There was the existence of a prima facie case which was the major reason for turning down the bail petition. The investigation team has seized the ultrasound machine with no registration or license, adopter and gel used in sex determination, and other medical instruments used during an abortion and sex determination from the residence of the accused, which forms the evidence for prima facie case. In the said judgment, the Coram referred to the legislative history of the PC & PNDT Act. 

The bench also mentioned it in the case of Voluntary Health Association of India v. the State of Punjab, (2013) while pronouncing the judgment. It observed, “The unrelenting continuation of this immoral practice, the globally shared understanding that it constitutes a form of violence against women, and its potential to damage the very fabric of gender equality and dignity that forms the bedrock of our Constitution are all factors that categorically establish prenatal sex determination as a grave offence with serious consequences for the society as a whole.” The court while dismissing the petition stated that no leniency should be given at all in these issues and to eradicate gender discrimination and sex determination, such strict measures are very important. The bench by this judgment has put forward a step to dismiss gender inequality.

SC IMPOSES COST ON GOVT. OFFICIALS FOR DELAY IN FILING SLP

The doctrine of Condonation of Delay is the extension of the prescribed period in certain cases. This has been defined in Section 5 of the Limitation Act, 1963, that postulates time-limits for different suits and mentions the time period within which a suit, appeal or application can be instituted. Condonation of delay is a doctrine that is an exception to the limitation period. It does not apply to execution proceedings as it deals with the Criminal Cases. For taking the benefit of the Doctrine the applicant must have a sufficient cause in order to condone a delay. The Court can, with its discretionary jurisdiction, disregard or “condone” the delay and proceed with the case. It is the epitome of the maxim- Vigilantibus non dormientibus jura subveniunt.

The main objective behind Doctrine of Condonation of Delay is to promote substantial justice and not give undue emphasis on technical considerations. If there is no gross negligence or lack of bona fides, then the Courts can consider a “sufficient cause” for condoning delay. The interpretation of the term “sufficient cause” varies from case to case, however, it should be reasonable enough to qualify the application of condonation of delay.

Schedule 1 of the Limitation Act states

i)3 years time-period for a suit relating to accounts, contracts, suits relating to movable property, recovery of a lawsuit under a contract, etc.

ii)12 years time-period for suits relating to possession of the immovable property, and 30 years time-period for suits relating to the mortgaged property.

iii)One year for suit relating to torts (3 years for compensation in certain cases). 30 to 90 days in case of appeals under the Civil Procedure Code and Criminal Procedure Code.

In the present case, namely- State of UP & Ors. v. Sabha Narain & Ors. And Commissioner of Public Instruction & Ors. v. Shamshuddin, the Special Leave Petition was filed with a delay of 502 days with an insufficient application of condonation of delay implying petitioner’s casual attitude. It is often seen that the state governments when entering the judiciary disregard the conditions and provisions of the Limitation Statute. However, in the present case, a three judge bench comprising Justice S.K. Kaul, Justice Dinesh Maheshwari and Justice Hrishikesh Roy, gave an order of cost of Rs. 25,000 each for “lethargy and incompetence” and for wasting the Court’s time and the time period prescribed to pay the same is 4 weeks.

In the order the Court also stated, “The amount be recovered from the officers responsible for the delay in filing the Special Leave Petition and a certificate of recovery of the said amount be also filed in this Court within the same period of time.”

The court further noted that it refuses to grant such certificates and if the government/public authorities suffer losses, it was time when concerned officers responsible for the same, were to bear the consequences. Thus, the order is a welcome step towards disciplining administrative actions and holding them equally liable for delay and lapses.

PIL: ORIGIN, HISTORY AND IT’S MISUSE IN RECENT TIMES

Every citizen has a right to file a Public Interest Litigation (PIL) directly in the Supreme Court of India under Article 32 of the Constitution of India 1950 or in the High Court of a State under Article 226 of the Constitution. The term and concept of PIL originated in the United States of America. It was introduced in India through the first PIL filed by Pushpa Kapila Hingorani an Indian lawyer in the SCI before the bench headed by Chief Justice Prafullachandra Natwarlal Bhagwati (PN Bhagwati) regarding the condition of prisoners who were detained in the Bihar Jail.

The case came to be known as Hussainar Khatoon & Ors. v. State of Bihar & Ors. (1979). The PIL was entertained with the intention to aid the financially backward and just people while ensuring their fundamental rights. Hence, social organisations or NGOs i.e., third parties or parties not directly connected with the matter could file a case in the SCI and be able to access justice for matters which were of public interest.

Over the years it has been observed that PILs have been misused by the various people for their personal benefits and it has become difficult for the Courts to decide whether a particular matter is of public interest or not. Hence, PILs that were filed for personal interests ended up wasting courts’ time and created a backlog. Bringing this misuse into the light, the Madras High Court while hearing a PIL of an encroachment to land case, orally observed that if every encroachment matter becomes a PIL, they will be doing nothing else.

Further, the Court reiterated that PILs cannot be entertained for every encroachment that has taken place unless there is a substantial issue involved or it is a matter of general public importance. Later the Court passed an order with the note that while no encroachment should be permitted on public land, every individual complaint made by a passer-by cannot be treated as PIL.

Such misuse of PILs has been happening ever since its introduction and to prevent such misuse and save the courts’ time, various guidelines have been passed. However, their efficiency has often been questionable, especially, considering that more and more cases, for instance the present one which is a new encroachment case, are filed as PILs in the Courts. The Court while deciding for this case also recommended the State to create Taluk-level teams to check on encroachments, comprising revenue officials, police officials, panchayat representatives, survey officials, members of the PWD etc.

Apart from creating teams to ensure that a case qualifies to be a PIL, specific binding laws can also be enacted to solve the afore-mentioned problem which will help the Courts to consider only those matters which are of public interest so as to benefit the society and save the courts’ time and as a result keep the true essence of PIL intact.

Create your website with WordPress.com
Get started