LAW FIRM CANNOT REPORT ONGOING PROCEEDINGS IN ITS BLOG OR WEBSITE

On June 9th 2021, the Division Bench consisting of Justice Rajiv Shakdher and Justice Talwant Singh while adjudicating the petition filed by the Society for Tax Analysis and Research, directed that, a law firm “cannot, and ought not, run the website/blog, in respect of the proceedings, which are being prosecuted by it, as there is every likelihood of losing objectivity in the reportage of proceedings.”

A petition was filed, requesting the Court to direct the Central Government to extend various tax due dates. In the meantime, an article regarding the proceedings was published on the blog of ALA Legal Advocates & Solicitors, which is the law firm prosecuting in that case. The Solicitor General, N Venkataraman, highlighting the incorrect reporting in the blog, raised issue on the same.The Court concurred with the ASG and ordered that the law firm “cannot and ought not to” report the ongoing proceedings being prosecuted by it, since there exists every possibility of dearth of objectivity in reporting. Adv. Puneet Aggarwal, who was appearing on behalf of the petitioners submitted to Hon’ble Bench that the blog would be removed and offered to tender an unconditional apology to the Court and ASG Mr. Venkatraman.

He further submitted that the concerned order dated May 25, will be uploaded on the aforementioned website/blog, wherein the Court had directed the Petitioners to submit the suggestions of the parties to the GST Council and the Central Board of Direct Taxes (CBDT).It was held by the Hon’ble Delhi High Court that the details of a case cannot be reported by the law firm on their website/blog. The reasoning provided by the Hon’ble Bench was that “any slant in such reporting may lead to multifarious problems which may affect the proceedings and the respective counsels.”

RIJU PRASAD SARMA V. STATE OF ASSAM AND ORS.

PARTIES OF THE CASE –•

APPELLANT: Riju Prasad Sarma

RESPONDENT: State of Assam and Ors.CITATION: (2015) 42 SCD 764

BENCH: Justice Fakkir Mohamed Kalifulla, Justice Shiva Kirti Singh

FACTUAL BACKGROUND:The plea of the petitioner was that certain fundamental rights under Articles 14 and 15 of the Constitution are guaranteed only against State action, and not against private customs or practices. It was contended that the Judiciary is as much a part of State as the Executive and the Legislature and therefore, it cannot permit the continuation of discrimination in violation of Article 14. The writ petition was filed challenging the election of Dolois (head priest of the temple). The only ground stated on behalf of the petitioners was a rebuttal of equality under Article 14 of the Constitution, while the respondents argued that for Part III of the Constitution, Article 12 denotes the term “the State” to include the Government, Parliament of India, Government and legislature of the Statesalso, but it has left out the Judiciary. So, the Judiciary cannot be included and treated as ‘the State’ when it performs judicial functions in contraposition to administrative powers.

ISSUE:Whether judicial decisions by the Judiciary can be included in the State’s action in case of issuance of writs?

HELD:The Court held that if the Judiciary in India function on its judicial side cannot be considered as a State under Article 12 of the Constitution. However, when the Courts deal with their employees or perform in other matters exclusively in an administrative role, they may fall within the definition of the State, for alluring writ jurisdiction. The Court also decreed that writs against the Judiciary would stand against their administrative actions only.It was also observed that the judgments of the High Court and the Supreme Court cannot be subjected to writ jurisdiction and for want of requisite governmental control, Judiciary cannot be considered as State under Article 12. A contextual interpretation must be preferred as it shall promote justice, especially through equitable adjudication in the protection of Fundamental Rights covered by Part III of the Constitution.

SEBI imposes ₹15 Crore fine on Franklin Templeton.

Security Exchange Board of India has imposed a penalty of Rs. 15 Crore cumulatively on Franklin Templeton and 8 other entities, which is required to be paid within 45 days of receivingof such order.In April 2020, due to COVID-19 outbreak, the entity FT MF (Franklin Templeton Mutual Fund) had shuttered its six debt schemes stating the reason for the liquidity issue. The imposition of such penalty was done because of the violation of SEBIRegulations during managing different schemes of wound-uplast year.While passing such an order, the SEBI in its order stated, “The serious lapses and violationsclearly appear to be a fallout of FT MF’s obsession to run yield strategies without due regardfrom the concomitant risk dimensions. Ft mf ought to haverealisedthat the past track record inrespectof high-riskstrategies is noguarantee against futuremishaps.”It also emphasizes on the point of the blame game, which the entities shift from their mishap to black swan events, regulatory changes, etc. SEBI said that the entities should carefully andseriously introspect the notices and put robust risk control and due diligence mechanisms, given that the rest of the industry hasbeen able to cope with such events and have successfullysurvived during pandemic without reaching the winding up situation.

Against the order, the FT MF said that they are considering every option for their next step and has desired to appeal before the Securities Appellate Tribunal. They also stated that there is no violation as the company and its employees have acted in compliance with regulations while discharging their responsibilities, which are in best interest of unitholders.

The penalty is imposed on different services offered by the entity, in which SEBI directed Franklin Templeton Trustee Services Pvt Ltd to pay a fine of Rupees 3 crore and Franklin Asset Management India Pvt Ltd President Sanjay Sapre and Chief Investment Officer Santosh Kumar each to pay Rupees 2 crore fine.It has also imposed Rupees 1.5 crore penalty to be paid by eachfund manager’s personality of the Franklin Templeton at the timeof the violation, including Kunal Agarwal, Sumit Gupta,Pallab Roy, Sachin Padwal Desai and Umesh Sharma.

In addition, SEBI directed Rupees 50 Lakh penalty to be paid by Chief Compliance Officer Saurabh Gangrade.The market watchdog had directed the entities to pay suchamount within the 45 days of the receipt of the order to the defaulters, which is noted in its order.

DELHI COURT DISMISSES SUSHIL’S APPLICATION OF DIET AND SUPPLEMENT

Facts of the case

Around in night of 5th May, wrestler Sagar Rana of 23 years was murdered. One of the eye witnesses Sonu Mahal, in an interview with the Aaj Tak, Sonu told the news channel that Sushil Kumar, a renowned wrestler had bitten Sagar relentlessly and driven away. He informed that they both were first kidnapped and later on beaten recklessly. They were hospitalized however Sagar died. Sushil Kumar was arrested by the Delhi Police after putting a price of Rupees One Lakh for the person who wouldgive any information of the whereabouts of Sushil Kumar. The wrestler is kept in a separate cell due to security reasons.

Petition presented

After the arrest, a request application was filed by the Sushil’sCounsel on his behalf seeking supplements and special foods claiming that he is a renowned wrestler who wants to continue his wrestling career, therefore to maintain his physical strength, his body requires such supplements as he cannot sustain without them. The counsel relied upon a Bombay High Court Judgment in Asgar Yusuf Mukadam v. the State of Maharashtra. It also relied upon Sections 31 and 32 of the Prisoner’s Act 1894 and Section 49 and 41, Chapter 9 of Delhi Rules, 1988. The Additional Public Prosecutor and Jail Superintendent stated that the desire for special food will be discriminatory for other prisoners. If such a request is allowed it will create a situation of request from other prisoners as well. The requirement shall not be decided on the basis of past life. Also, such rules for food and facilities are governed according to Delhi Prisons Rules, 2018.

Issue

The main issue before the court was that whether such kind of special treatment should be given to the applicant only because he wants to live his life as a wrestler even when the diet provided by the Prison Authority is balanced and healthy without any Discrimination?

Court’s Reasoning

Court rejecting the application, stated that according to the Rule of Law, every person is equal in the eyes of Law irrespective of their caste, class, religion, sex, etc. the Right of Equality under Part III of the constitution is a basic feature which implies that no special privilege to be given to any person due to his rank, status, etc. The court further on this point emphasized that Law should be equally administered, that like should be treated. It was observed by the court that no disclosure was made by the applicant for any participation in the near future.In addition, the court also emphasized the point of Delhi Rules, 1988 and Delhi Prison Act, 1894, and judgment passed under that on which the counsel of the applicant relied upon is repealed as Delhi Prison Rules, 1988 and Delhi Prison Act, 2000, came into force respectively. The court dismissing the request stated that it is not maintainable as the supplements are not in need but are the desire of the applicant. If allowed, it would not be according to the basic principle of the Rule of Law. It further stated that as there are some applications, which are still pending before the Jail Authority, thus, such authority is directed to inform the court about such a trial of these applications or any application filed or decided in the future, as per rules.

Indian Medical Association Vs V.P Shanta

In this case SC included medical negligence and medical profession within the scope of consumer protection act .Consequently empowering the aggreieved due to medical negligence to sue for damages for deficiency in services by a medical professional or medical institution , in a civil court .

Issue –Whether professional services are to be considered under the Consumer protection  Act.

Judgement –The court said act was made for the benefit of consumer so the term service needs to be construed keeping the consumer in minds. On perusal of section 2(1)(o) if the act, the court stated that the definition of service was divided into three parts, namely, the main part, the inclusionary part and the exclusionary part. The court stated that the scope of main part in itself was extremely wide while placing reliance on another judgement, namely, Lucknow Development Authority vs. M.K Gupta, where the court had used the definition of “any” established in Black Law’s dictionary to establish that it meant “all” or “some” or even “one”. The court in that judgement stated that the main part gave the widest scope to the definition of service with inclusive part adding to the list but not exhausting it. Thus empowering the aggrieved due to medical negligence to sue for damages for deficiency in services by a medical professional or medical institution , in a civil court .

Unfair trade practice& Limitations

A trade practice is touted as unfair when in order to promote its services or sale of its goods, supply and distribution of its products, an entity uses illicit and illegal means to mislead the general public into opting for in-genuine and deceptive goods and services.

Some examples are: portraying the goods to be of good quality when they are actually of inferior/poor quality, misleading public with fake components and ingredients, misrepresentation of services, claiming used goods and products to be brand new, fake advertising, selling goods not complying with safety and other industry standards while claiming otherwise.

These are the acts mentioned under the act which is said as unfair trade practise:

i. False representation of goods or services of particular standard, quality , quantity , grade or composition.

ii. False representation of any rebuilt, renovated and second hand goods as new goods

iii. Representing that goods or services have all the requirements such as approval , performance , characteristics as other goods or services of same kind do not have

iv. Representing falsely that the seller has some approval which he does not have.

v. Making a false statement regarding the usefulness of goods

vi. Gives to the public any warranty or guarantee of the performance which is not based on proper test.

vii. Failure or non-issuance of a bill or a cash memo

viii. Refusal to take back

ix. Disclosure of consumer ‘s personal  information to any other person unless such disclosure is made in accordance with the provisions of any law .

Note – Before ascertaining whether it amounts to unfair trade practice , it becomes relevant to determine whether the goods or deficient services have been provided .This section in its current  form  pre –determines existence of defective product or deficient service.

Limitations-This has been mentioned under section 69 of the act which says that the complaint should be made within a time period of 2 years from the date on which the cause of action arises .However if the complainant satisfies that he had sufficient reason for the delay than commissions may entertain  the complaint by recording reasons .

CONSUMER PROTECTION REDRESSAL COMMISSIONS& CONSUMER RIGHTS

In order to protect consumer rights the act talks about the establishment of three redressal mechanisms .1. District commission –Under section 28(1) mandates the state government to establish at least one district consumer dispute redressal commission in every district of the state .Limit –If your redressal value is 1crore or less than that then the consumer can approach the district commission.Jurisdiction –As per section 34(2) of the act a complaint can be filed at the District commission within whose local limits the opposite party have a branch or personally work for gain or ordinarily resides -Where the opposite party actually and voluntarily resides or carries on business or has branch than has to take the permission of District commission -if cause of action arises-the complainant resides or personally works for gainTime period- Within 21 days of getting the complaint the commission has a duty to either admit or reject the same. However it cannot do the same without having the first hearing.-Needs to presided by the president and one member atleast .Appeal – If a party is aggrieved by the order of the District commission then they may go for an appeal to the State commission within  45 days of receiving such order .If party was ordered by the District Commission to pay a certain amount than at least 50% of the amount must be paid before the state commission in order to hear the appeal.2. State Commission – The state government has been asked to establish  a state commission under section 42(1) of the Act .Constitution – 1 president and atleast 4 Members and maximum as members as required .Jurisdiction –According to section 47 of the Act it has jurisdiction to entertain -where the value of goods or services paid as consideration exceeds 1Crore but does not exceed 10Crores-Complaints where unfair contracts where the value of goods or services paid as consideration does not exceed 10Crore -Appeals against the order of District commission within the  state .-Where it feels that District commission has exercised a jurisdiction not vested in  law, or has failed to exercise a jurisdiction illegally or material irregularity -A bench must consist of a president and one member or member that deems fit -It has also the power to shift proceedings from one district commission to another under section 48.Appeals –If aggrieved by the decision the aggrieved party may prefer an appeal to the National commission within 30days of receiving the order from the state commission. If order had been made to pay a particular amount by the state commission than 50% of it must be paid to national commission to listen the appeal.3. National Commission –-under section 53(1) the central government is mandated to establish a national commission .Constitution- 1 president , Atleast 4 members and maximum as deems fit Jurisdiction –Under section 58 of the Act -Complaints where the value of goods or services paid as consideration exceeds 10Crore -Complaints against unfair contracts where the value exceeds 10crores-Appeals against the order of any state commission -Appeals against the order of central authority -To call for the records and pass appropriate orders if National commission feels that State commission was not vested with jurisdiction or has acted in the exercise of its jurisdiction illegally or with material irregularity .-It also has the right to review its cases suo moto or based on an application filed by one of the parties • Rights of the consumer that are recognised under this act –1.Right to safety-This right is the right to be protected against the marketing of goods and services which are hazardous to life and property of the consumers .2.Right to Information – Right of a consumer to be informed of the quality , quantity , potency , purity , standard and price of the goods and services being sold by the seller.3.Right to choose –It is defined as the right to be assured to have access to a variety of goods and services at competitive prices 4.Right to be heard –It is right to be heard and assured that consumers interest will be  heard at appropriate forums5.Right to seek Redressal –This right ensures that all the issues of the consumers are taken care of and justice is done with them .6. Right to consumer education-Right to have knowledge about all laws and policies related to consumers. Therefore steps to be taken create awareness among the consumers . Awareness programs have been organised by the government  such as “ jago grahak jago”

KARNATAKA HC REJECTS CCI INVESTIGATION BY AMAZON AND FLIPKART

The Karnataka High Court on Friday, 11th June 2021, dismissed the writ petition filed by Amazon India and Flipkart challenging CCI’s order to initiate a probe against their anti-competitive practices.The Court stated that due to limitation of the power of judicial review under Article 226 of the Constitution of India, it cannot interfere with an order passed by an expert specialized body.It all started in January 2020, when CCI had ordered the director general to initiate a probe against these companies. CCI stated that it had a prima facie case in the complaint against e-commerce companies under section 26(1) of the Competition Act, 2002 relating to the discounting offers, anti-competition practices, etc.“26. Procedure for inquiry on complaints under section 19.— (1) On receipt of a complaint…if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter.”Section 19 states “19. Inquiry into certain agreements and dominant position of enterprise ..“Taking the cognizance of the allegation put by the Confederation of All India Traders [CAIT] and Delhi Vyapar Mahasangh [DVM], which said that action of these e-commerce companies were predatory in nature and favourable to certain selective sellers, in respect to providing huge discounts offer as well as different schemes to their customers.In justifying their claim, Preaveen Khandelwal, the secretary general of CAIT stated “It fully vindicates the stand of CAIT — that Amazon’s and Flipkart’s business model is entirely based on violating the FDI policy, rules and other law”. DVM said that these giant e-commerce companies are abusing their power and competitive position.After the initiation of the probe, the companies filed a petition before the Karnataka HC, the court in February 2020, granted an interim stay on the probe. In September 2020, CCI filed a petition before the Supreme Court of India against the interim order passed by the HC, challenging the same.

However, Justice Nageswara Rao sent the case back to the HC, stating that it should be heard as soon as possible in the next Month, October 2020. Since then, the case is heard on a regular basis.Before the HC, both the parties have argued whether the conduct of such a probe should be allowed or not. CCI on initiation of probe stated that it is not that if a probe is stated these companies are guilty of any act. It’s a mechanism of investigation under the Act to check over the antitrust policies. On the other hand, Flipkart and Amazon argued that CCI didn’t have enough evidence to make a prima facie merit to make such an order. They also emphasized on Section 26(1), that it is based on prima facie case and the law does not allow hearing before it is passed. Further, CCI should have informed the companies and allowed them to present their side before initiation of a probe.The company has challenged the conduct of the CCI as nothing but abuse of power if such probe is allowed and stated it to be “Perverse, arbitrary and untenable in law”.CCI, have however pointed out that allegations against these giant companies have impacted many small as well as middle scale businesses. The deep discounting, preferential treatment to certain vendors like Cloudtail which apparently also have its own minority stakes in them and indulge in anti-competitive policies. The main aspects of such companies are to capture the market with such unhealthy policies affecting the small players in such markets.The complaint has also mentioned certain sellers on Flipkart which have control over the inventory as well as the pricing of things with the e-tailer.On 11th June 2021, the Karnataka HC, through Justice PS Dinesh Kumar in deciding the petition, rejected the plea presented by e-commerce companies to quash the investigation into their business practices by Competition Commission of India.

The court allowed the restart of CCI’s investigation relating to the anti-competition policies by these e-commerce companies. The court has also rejected the plea for extension of the interim stay on the probe for two more weeks.The order can be challenged by the companies through an appeal within 30 days from the date of passing of such order.

DE MINIMIS CURAT LEX

Legal maxims are established principles, often resorted to as creative agencies that help manoeuvre Courts across the world in applying the incumbent laws in an impartial manner. As the great scholar Agassiz was said to be able to reconstruct the entire animal from the view of a single bone or scale and jurists sometimes treat one short maxim as containing all the materials necessary to develop a branch of the law, “a complete pocket percept covering the whole subject“. A cardinal principle of jurisprudence till date is to prevent the delay of justice. Therefore, it is expedient that the law should not be concerned with trivial matters, as suggested by the maxim de minimis non curat lex. The maxim means “the law does not concern itself with trifles”. It includes matters that are minimal and so insignificant that a court may overlook them in deciding an issue or case.

Generally, the law discourages parties from initiating legal action where the impact of the wrongdoing is infinitesimal, and it is Section 95 of the IPC that ushers the maxim into Indian criminal jurisprudence. Section 95 was formulated to aid those cases that, though they fall within the parameters of the penal law, are not yet within its spirit and are universally considered innocent. Explicating the scope of Section 95, the Apex Court held that it is intended to prevent the penalisation of offences of a trivial character. It further stated that the parties’ position, the nature of the injury and the intention or knowledge with which the affronting act is done would be key to ascertain whether an act is trivial or not. It also asserted that a sweeping standard could not be established which may be regarded as so slight that a prudent person of ordinary sense would not complain of the harm. It cannot be judged purely by the measure of physical or other injuries.In the landmark case of Coward v. Badly, a building was on fire, and a bystander tugged the arm of a fireman to inform him of another fire that was raging at the other end. The plaintiff filed a suit for battery.

However, the Court held that defendant would not be liable for the tort of battery as this amounts to a trivial act. Where a case of criminal intimidation was alleged, it was held that even though a threat emanated, momentary annoyances would not be treated as offences by virtue of Section 95.

Where the complainant tried to touch the feet of a person and got kicked and abused in the process, the Court opined that the allegations were petty in view of Section 95. However, it is pertinent to note that Section 95 cannot have any manner of application to an offence relating to the modesty of a woman as under no circumstances can it be trivial.This maxim is applied to expedite the litigation process. However, there is no settled law over its mandatory application, and ultimately the discretion of its use rests with the Judge.

SC Judge Indira Banerjee Recuses West Bengal Post Poll Violence

The Supreme Court on Friday adjourned the case of post poll violence in West Bengal, where it asked the registry to list the matter before a Bench in which Justice Indira Banerjee, is not a part. SC Justice Indira Banerjee recused herself from hearing a plea filed by kin of two BJP Workers, who were killed in the poll related violence occurred on May 2, 2021 in West Bengal. While delivering the order Justice Banerjee, who also hails from West Bengal, said “I have somedifficulty in hearing this matter”.

The Court has also not given the next day of hearing the matter, even when Solicitor General Tushar Mehta requested for the listing of the matter on coming Tuesday, saying it is not proper to put a hearing day when a presiding Judge is recusing themselves.A bench consisted of Justice Indira Banerjee and M R Shah, who were hearing the petitions demanding an independent inquiry of the Trinamool Congress who were associated with the alleged killing of workers of Bharatiya Janata Party on May 2nd, after the results of the Assembly election. The plea, filed by Biswajit Sarkar, brother of deceased BJP member Avijit Sarkar, where it was presented before the Court to monitor the probe and transfer of cases to the Central Bureau of Investigation (CBI) or Special Investigation Team (SIT). The widow of Haran Adhikari is the second petitioner in the case.West Bengal went through devastating incidents of violence and riots following the election results which came on May 2nd. Both TMC and BJP blamed each other for the violence and death of party’s workers.In the petition, Biswajit Sarkar accused the West Bengal Government and the Police of inaction and involvement of them in the violence after the election result and asked for the rehabilitation and compensation for those affected by such actsof violence. The plea also asked for the direction to look into the matter of the widespread of such violence after the results.On May 25th, 2021, a vacation Bench of Justice Vineet Saran and B R Gavai, directed the West Bengal Government to file a counter affidavit in the case, after the State’s counsel informed about the FIRs being registered by the State Police in respect of the killings, and on the basis of the complaints’ allegations, three people from both sides have been arrested.

On Monday after such an order by the vacation bench in respect of the counter affidavit, the West Government Filed the same and said that the seeking of an independent inquiry in the petition is misleading and politically motivated. It also claimed that the accusation of complicity and involvement in the violence are not true and are on “hearsay reports and concocted stories disseminated on social media by miscreants”. It has also urged that SC should not involve and intervene with the matter relating to violence, as it has already put for hearing before the Calcutta High Court.