AUGUST MEHTA V. THE STATE OF JHARKHAND

[Cr. Rev.No. 1081 of 2013]

Recently the High Court of Jharkhand in the present case held that the 2018 Judgment of SCon quashing of adultery which was punishable under IPC to have a retrospective application.

The Court in the present petition set aside the order of the conviction. The court making such an order laid an emphasis on the Judgment passed in the case of Major General AS Gauraya and ANs v. SN Thakur, in which the court held that the SC’s judgment in 2018 will apply to pending proceedings for an offence committed before such an order.

Facts of the Case:

In the present case, the petitioner was convicted under section 497 for an offence of adultery and was sentenced by the Trial Court in 2008 with the rigorous imprisonment for two years. Later on, the session court confirmed the sentence passed by the trial court in October 2013. Against the order of the sessions court, the petitioner has filed the petition before the High Court of Jharkhand.

Stance of the Petitioner:

The Petitioner through its counsel submitted that the Hon’ble Supreme Court in the case of Joseph Shine v. Union of India, held that section 497 of IPC, 1860 to beunconstitutional, therefore the judgment of the Session Court for the conviction of the petitioner is not maintainable under the present law. The petitioners also referred to the case of Rupesh v.Shri Charandas, in which Bombay High Court Judgment observed the case of Joseph Shine and the conviction of the accused was set aside.

Stance of the State:

The counsel on behalf of the State, opposed the prayer of setting aside the conviction order, submitted that there is no denial that current position about the section 497 ofIPC, however, the judgments passed by the Hon’ble Courts were recorded on concurrent finding of the facts, therefore no interference should be called in the present case.

Finding of the Court:

The Jharkhand High Court, referring to the Supreme Court Judgment of quashing adultery as under section 497 of the Indian Penal Code, held that such an order will also be applied to the pending proceedings before the courts even if an act of adultery was committed prior to 2018 judgment to stuck downthe section. Therefore, the verdict of the SC will haveretrospectiveapplication. The HC also emphasized that neither SC had givenany indication in the verdict for it to be applied prospectively and nor any prospective operation of law was laid down.While passing such an order, Justice Anubha Rawat Choudhary, observed that according to the Article 14 of the Constitution of India, any law which is formed or declared by the Hon’bleSupreme Court has a binding nature on all the lower courts andtherefore, it needs to be applied to all the pending proceedings before the courtS

LEGALITY BEHIND BANNING CHINESE APPS

The Government of India blocked the access of 43 Chinese mobile apps via a press release dated 24th November, 2020. The Ministry of Electronics & Information Technology (MEITY) passed a ban on these apps operating its powers under section 69(A) of the Information Technology Act, 2000. Earlier, on 29th June 2020, the Government of India had blocked access to 59 mobile apps and on 2nd September 2020, 118 more apps were banned operating under the same section. Section 69(A) gives the Central Government an authority to block any online content in the wake of sovereignty and integrity of India, security of the State, defense of India, friendly relations with foreign States or in event of an emergency. Rule 9 of The Information Technology (Procedure for Blocking of Access of Information by Public) Rules 2009, talks about blocking information in case of an emergency. The IT Act, 2000 and the Rules therewith form the primary source of law that deal with cyber crime and electronic commerce in India. The action of banning such apps was taken to safeguard the sovereignty and integrity of India which was claimed to be at risk. The Indian Cyber Crime Coordination Center, Ministry of Home Affairs, in its report indicated the potential data breach and theft that is happening as a consequence of these apps. Therefore, this ban can be seen as an imperative step for protecting the privacy of personal and non-personal data of the citizens of India which will soon be statutorily granted to all the citizens of India.Moreover, the vacuum that Indian citizens would feel, will encourage them to develop their own apps, which is a positive step towards an Atma Nirbhar Bharat and has potential to generate a good domestic revenue. For instance, after the ban on PUBG and Tiktok, etc., India had launched its own versions replacing such apps. However, the ban could lead to an increase in unemployment since various people were working in India on behalf and in relation to such apps and startups. The ban can be observed as a consequence of the border tensions between China and India in eastern Ladakh which also reflects external aggression. China condemned India’s decision and stated that the ban is neither beneficial to Indian users nor to China’s businesses. It further claimed that India has abused the concept of ‘national security’ and adopted discriminatory restrictive measures against Chinese companies, violating relevant WTO rules. The fact remains that banning such Chinese apps is an economic move that will adversely impact the Chinese revenue system and they will even lose ads from Indian markets.

Central Information Commission issues show-cause notices to the authorities to disclose vital information on creation of Aarogya Setu Application.

The Central Information Commission on 27th October 2020 issued show-cause notices to the Central Public Information Officers (CPIOs) of the Ministry of Electronics and Information Technology (MeitY), National Informatics Centre and National E-Governance Division (NeGD) to show reasons as to why penalty u/s 20 of the Right To Information Act should not be imposed on them for prima facie obstruction of information and providing an evasive reply on an RTI application related to Aarogya Setu App. The statement comes after the Ministry and NIC were slammed by the CIC over their reply to an RTI, stating that they did not have any information about the “creation” of the Aarogya Setu application promoted by the government to contain the spread of COVID-19. 

The development comes in a complaint filed by one Saurav Das, stating that the relevant authorities had failed to furnish information about the process of creation of the App and other information related thereto.

 Information Commissioner Vanaja N. Sarna pointed out that the website of the application mentions that the content on it is “owned, updated and maintained” by MyGov and MeitY, and directed the CPIO of the Ministry to explain in writing why they did not have the requisite information.
Show-cause notices have been issued to S.K. Tyagi, Deputy Director and CPIO, D.K. Sagar, Deputy Director, Electronics, and R.A. Dhawan, Senior General Manager (HR and Admn) and CPIO, NeGD. The Commission directs the above-mentioned CPIOs to appear before the bench on 24.11.2020 at 01.15 pm to show cause as to why action should not be initiated against them under Section 20 of the RTI Act.

Criticism to Contempt: Freedom of Expression on Social Media

In recent years, the Indian authorities have increasingly used criminal laws, including for counterterrorism,  sedition, and criminal defamation, against peaceful dissenters, journalists, rights activists, academics, and  students. Contempt of court is one such law and is sui generis and traces its root from the inherent powers  of the court that must be invoked in extraordinary circumstances to meet the end of justice. The Traditional  media and other social media platforms are mainly concerned with Criminal Contempt. According to  Section 2(c) of the Contempt of Courts Act 1971, criminal contempt is defined as; any publication (of words,  

spoken or written, or by signs, or by visible representation, or otherwise) of any matter which (i) scandalizes  or lowers the authority of any court or (ii) prejudices, or interferes with the due course of any judicial  proceeding or with the administration of justice in any other manner. A publication which attacks individual  judges or the court as a whole with or without reference to a particular case, casting unwarranted and  defamatory aspersions upon the character or ability of the judges, has also been recognized as scandalizing  the Court. Similarly the Courts have time and again held that, liberty guaranteed under Article 19 of Indian  Constitution is not to be conferred with license to make unfounded, unwarranted and irresponsible  aspersions against the judges or the courts in relation to judicial matters 

In a new tussle between freedom of speech, contempt and the Supreme Court’s legitimacy, in (i) Prashant  Bhushan Case. The Supreme Court initiated suo moto criminal contempt proceedings against Advocate  Prashant Bhushan and Twitter India, on the basis of two tweets posted by Bhushan on the social media  platform on June 27 and June 29. The reasoning for initiation of proceedings was- Mr. Bhushan, wilfully  and deliberately using hateful and scandalous speech by means of Twitter, against the Supreme Court and  the judicial system. The Supreme Court had imposed a token fine of ₹1 on Mr. Bhushan for his tweets  against the judiciary. His first tweet, reproduced in the court, said: 

“When historians in the future look back at the last six years to see how democracy has been destroyed  in India even without a formal Emergency, they will particularly mark the role of the SC in this  destruction, and more particularly the role of the last four CJIs.” 

His second tweet said: “The CJI rides a Rs 50-lakh motorcycle belonging to a BJP [Bharatiya Janata  Party] leader at Raj Bhavan, Nagpur, without wearing a mask or helmet, at a time when he keeps the  SC on lockdown mode denying citizens their fundamental right to access justice!” 

The Second case is of (ii) Comedian Kunal Kamra- wherein Attorney General K.K. Venugopal granted  consent to initiate contempt of court proceedings against Comedian Kunal Kamra for his tweets criticizing the Supreme Court for fast-tracking the hearing of Republic TV Editor-in-Chief Arnab Goswami’s bail  appeal. Kunal Kamra posted four tweets after Arnab Goswami was granted interim bail in a 2018 abetment  to suicide case, with one of them showing a picture of the Supreme Court building swathed in saffron  color with the BJP flag flying atop it. 

The criminal contempt cases against Prashant Bhushan and Kunal Kamra offer an opportunity of  introspection to the judiciary and simultaneously raise questions over the legitimate/reasonable exercise  of freedom of speech by citizens. To quote Lord Denning “We do not fear criticism, nor do we resent it”  Therefore during contempt processing the primary aim of the jurisdiction should be to protect the dignity  of the court and the due administration of justice and then to uphold the personal dignity of the Judges.

SC Issues Notice to Centre- PIL Seeking Rescue of Indian Gulf Workers

There are hundreds of workers from Tamil Nadu stranded in Gulf countries due to the lockdown adding to the thousands of workers stranded prior to that because of being deceived by travel agents and lack of passports. The consequence is forced labor, slavery, sex trafficking and death. Hence, a PIL under Article 32 of the Indian Constitution was filed by President of Gulf Telangana Welfare and Cultural Association- Pathkuri Basanth Reddy. The PIL is seeking rescue of such workers and pleading to bring back the corpses to the families of the victims. The condition of the workers is in clear violation of basic human rights under UDHR and Article 21 of the Indian Constitution since right to live with dignity and decent burial are both facets of right to life. Thus, the Supreme Court issued notice to the Central and State Government along with the Central Bureau Investigation to respond to the same. 

This situation is largely because of the fact that India as well as the Gulf Countries have not ratified important conventions like Freedom of Association and Protection of the Right to Organize Convention, 1948 and Right to organize and Collective bargaining Convention, 1949. Further, these countries are failing to adhere to ILO’s Declaration on Fundamental Principles and Rights at Work. These conventions and declarations give the workers various rights, namely the right to freedom of association, collective bargaining and all forms of elimination of forced or compulsory labor. Consequently, the migrant workers are unable to form unions or oppose any unfair labor practices.

The pandemic has exacerbated their situation as they remain most susceptible to health risks. Closely situated houses and unhealthy living conditions make the necessity of social distancing impossible to achieve. Limited access to preventive medical care, lack of awareness and legal protection adds to their miseries. Thus, the plea urges courts to set out immediate directions, problem redressal forums, and provide legal aid and assistance to the victims. It further urges the embassies in the two regions to collectively strive for the welfare of the workmen stranded in their territories.

EVOLUTION OF RIGHT TO PRIVACY IN INDIA

Right to Privacy in India was not recognized as a Fundamental Right until the Supreme Court’s famous Puttaswamy Judgement. In 1954, an eight-judge bench of the Supreme Court in the case of M.P. Sharma v. Satish Chandra had held that the Right to Privacy is not covered or protected by the Constitution. The Court had laid down that the power of the State to carry out search and seizure is regulated by law however it is not restricted by the Constitution, since the Constitution itself does not recognize Right to Privacy as Fundamental Right. 

In the year 1963, in Kharak Singh v. State of U P, a six-judge bench while deciding the validity of U.P Police Regulations for daily surveillance held that domiciliary visits at night was unconstitutional but upheld the rest of the regulations valid. The majority held that the right to privacy is not guaranteed under the Constitution. However, the minority view was that privacy is a fundamental right considering the scope of Articles 21 and 19(1). 

In the year 2014, the Supreme Court in the case of Unique Identification Authority of India & Another v. Central Bureau of Investigation passed an interim order to stop UIDAI from transferring any biometric information or Aadhar number of any citizen to CBI or any other agency without the consent of the concerned citizens. This order reflected the need for an intact establishment of right to privacy.

Ultimately, in 2017, the nine-judge bench of the Supreme Court in K. S. Puttaswamy v. Union of India declared the right to privacy to be a fundamental right under Article 21 of the Constitution. The Court considered the consequences that the UIDAI system will have on the right to privacy of citizens and while doing so Retired Justice Puttaswamy argued that the right ought to be a fundamental right especially considering the changing social events. The judgement also laid down a test of proportionality to ensure that the right to privacy is not violated by any executive action unless it is sanctioned by law and has legitimate state interest. 

RELIANCE BREACHES THE NON-COMPETE CONTRACT – CLAIMS AMAZON

A war for leadership in the field of E-Commerce market in India is seen to be initiated. Amazon Inc. recently served Future Group ltd. with a legal notice for allegedly breaching the non- compete contract due the deal that they signed with Reliance Industries Limited. Amazon then took a further step and approached the Singapore International Arbitration Center (SIAC) in order to prevent the deal between Reliance and Future Group.

Reliance Retail’s acquisition of Future Group is considered to be a significant move towards expanding its retail business through Jio-Mart and becoming a strong competition to leading ecommerce platforms like Amazon and Flipkart.

According to Amazon, it holds a 3.58% stake in Future Retail Limited as it had acquired a 49% stake in the promoter group entity of Future Group’s retail business, Future Coupons. The company further claims that the selling of a significant part of Future Groups business to Reliance is in breach of the terms of their contract. 

The Emergency Arbitrator of SIAC passed an interim injunction award favoring Amazon and stopping Future Group from taking any steps in relation to the transaction with Reliance. The matter was then brought in front of a Single judge bench, Judge Mukta Gupta in Delhi High Court with a prayer of issuing an ad- interim injunction against Amazon.

Initially Harish Salve argued for issuing an order to stop Amazon from interfering, he further submitted that the Emergency award was not recognized hence it is not binding under the Indian law. To this Adv. Subramaniam contended that the award was passed after considering the Indian law, he justified it on the grounds of Sec 2(8) of the Arbitration & Conciliation Act. He even questioned the maintainability of the ongoing suit.

The Hon’ble court questioned the parties on the law in relation to the concept of non-signatories to the arbitration agreement and then adjourned the hearing for the day. 

PROCEDURE FOR ARREST IN CRPC- WAS ARNAB GOSWAMI’S ARREST LEGAL?

Arnab Goswami was recently arrested by Mumbai Police under Section 306 of IPC for allegedly abetting the suicide of Avnay Naik- who reportedly designed the sets of Republic TV.  The suicide was committed in 2018 and three people including Arnab Goswami were named in the suicide note in which Naik alleged that his dues were not paid by the channel. 

Chapter V of Criminal Procedure Code, 1973 deals with the aspects of arrests. When a person is arrested, he/she is taken into the custody of an authority permitted by law and is then asked to answer the charges against him/her. An arrest can be made by a police officer, magistrate or any private person as per the provisions of CrPC.

Section 41 of CrPC allows a police officer to arrest a person for a cognizable offence without a warrant; whereas Section 42 allows them to arrest a person for a non-cognizable offence if the person refuses to give his/her name and residence. Section 43 vests a private person to arrest in certain circumstances. Further, an arrest can be made by the magistrate as per Section 44(1). 

Section 46 of CrPC states the mode of the arrest with or without a warrant. Section 46(1) states that, “in making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action”

Section 50 of CrPC states that, “Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.”

Arnab Goswami was arrested for abetting suicide which is a cognizable offence. Therefore, as per Section 41 of CrPC, Police Officers did not acquire any warrant and moreover, the grounds of his arrest were informed to him. Additionally, as per the videos released in the public domain, Mr. Goswami was seen to be accusing the police of physically assaulting him. However, as per Section 46 of CrPC, the Police are permitted to touch the body of a person if he has not submitted to the custody by word or action. He was demanding to seek medical assistance before the arrest, however, section 54 of CrPC has laid down mandatory medical examination of the arrested which would have fulfilled the concerns. Thus, the arrest of Mr. Goswami prima facie appears to be legally performed. However, the arrest in the mentioned case was to be made a long time ago therefore one can reasonably question the motive behind this act. Even after two years of the complaint being filed, Mr. Goswami had not been arrested which depicts the failure of the justice system in India. 

The existing political influence on state police’s action renders the public at large helpless and devastated. As of yesterday, the Bombay HC denied Mr. Goswami’s bail application. 

JUDICIAL ACCOUNTABILITY IN TIMES OF COVID-19

Independence of the judiciary is one of the essential traits of a democratic government. However, this does not mean that the judiciary, i.e. the judges or court officials should have unfettered power.  Judges too must uphold the highest standards of integrity and be held accountable to the public. Where judges or court personnel are suspected of breaching the public’s trust; fair measures must be in place to detect, investigate and sanction corrupt practices. Formerly, several attempts have been made in the form of the Judicial Accountability Bills of 2006 and 2010 but these bills never saw the light.

In the past, several allegations have been made against judges for misconduct. In lines of the pandemic too, several questions were raised against the judiciary for hearing certain cases at great urgency, while keeping other similar matters pending without any hearing. Such practices make the public lose their faith in the justice delivery system. 

Through the 2018 verdict of Swapnil Tripathi v Supreme Court of India, the Court laid down elaborate guidelines and modalities for live-streaming court proceedings. The Court held that the Supreme Court Rules, 2013 will have to be suitably amended to provide for the regulatory framework for holistic live-streaming as an extension of the principle of open courts and for dissemination of information in the widest possible sense, thereby imparting transparency and accountability to the judicial process. 

This declaration made by the Supreme Court two years ago has now come to light. Several High courts like Madras and Gujarat have already started live-streaming certain matters. The SC accordingly, on 4th November, set up a panel to formulate rules for regulating the live streaming. However, several judges including CJI Bobde have claimed the process is susceptible to abuses and the Court until now had been reluctant in allowing the same. 

CONSUMER COMMISSIONS CAN ALSO HEAR BUILDER- BUYER DISPUTES

Acquiring and purchasing Real Estate is a major decision for a common man. People have often questioned their investment security while making such decisions. The Real Estate (Regulation and Development) Act, 2016 also known as “RERA” is a legislation created to solely protect the rights of real estate buyers by ensuring that their investment in the ‘under construction projects’ is protected. 

However, it has often become confusing to understand if the buyer should approach the RERA authorities for redressal or whether the buyer should seek remedy under the Consumer Protection Act, 2019 which protects the rights of all those who are consumers of any goods and services. Hence, the jurisdiction of both the forums is unclear. 

Amidst which, an even important question arises, i.e. Whether filing a complaint under one of the forums vitiates power of the other? And whether the same is barred by law, i.e. by the RERA Act?

To understand this better one needs examine who can file a complaint under these respective acts. Under S. 17 of the Consumer Protection Act 2019, any ‘consumer’ can file a complaint, the meaning of the word consumer is defined u/s 2 (7) of the same act. Under S. 31 (1) of the Real Estate (Regulation and Development) Act, 2016 any ‘allottee’ may file a complaint, the word allottee is defined u/s 2 (d) of the same act and means the person to whom a plot, apartment or building has been allotted or sold. 

These two definitions overlap in their meaning since an allottee is also a consumer. Therefore, it depends on the individual to approach either of the forums. However, certain provisions (S. 79) under the RERA, 2016 bar the jurisdiction of civil courts to take up cases that should be dealt before the RERA Tribunals. 

Hence, can a Consumer Commission deal with a case where the consumer is an allottee and the Builder Buyer Agreement is in question? The Supreme Court in the case of Imperia Structures Ltd. Vs. Anil Patni [CIVIL APPEAL NO. 3581-3590 OF 2020] has answered this in affirmative and held that Consumer Commissions can also take jurisdiction of Builder – Buyer Agreements.