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.

IS WHATSAPP’S NEW PRIVACY POLICY A BREACH OF RIGHT TO PRIVACY?

WhatsApp is being criticised for its revised privacy policy under which Facebook and its partner companies will get access to selected user data. Since then, there has been an increase in the downloads of alternative messaging apps. Although WhatsApp has clarified that with end-to-end encryption, one cannot see the private chats or calls. WhatsApp had given its users a time period till February 8, which is now extended to May 15, to accept the new terms and conditions otherwise their account will stop operating. WhatsApp is an intermediary under Section 2(1)(w) of the Information Technology Act, hence, it is assumed to be providing public service. 

It is argued that the new and updated privacy policy of WhatsApp violates the Right of Privacy guaranteed under Article 21 of the Constitution. The Hon’ble Supreme court has declared the Right to Privacy as a “Fundamental Right” under Article 21 of the Indian Constitution, in the case of K.S. Puttaswamy (Retd.) v. Union of India. In this case while delivering the judgment the Hon’ble bench widely interpreted the term “Privacy” as:

“Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.  Privacy also connotes a right to be Left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy attaches to the person since it is an essential facet of the dignity of the Human being.”

 WhatsApp provides a platform where people communicate the most in today’s time and this new updated privacy policy has replaced the “opt-out-policy” which means that from now on, data sharing with Facebook and its group of companies will become a compulsion if one is using WhatsApp. Now, the users will compulsorily share all the information which will include any service-related information, personal information and others. The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 deal with the protection of “sensitive personal data or information of a person” which includes such personal information which consists of information related to passwords, financial information, legal documents, diagnosis reports, sexual orientation, trade secret etc. All this information will not be safe and will now be easily accessible by Whatsapp, Facebook and its other companies. 

Moreover, the same is also violative of section 72A of Information Technology Act, 2000. As per Section 72A of Information Technology Act, disclosure of information, knowingly and intentionally, without the consent of the person concerned and in breach of the lawful contract has been also made punishable with imprisonment for a term extending three years and fine extending to Rs. 5,00,000/-. WhatsApp is accessing and disclosing the private, personal and vital information of an individual with other companies with compulsion in its new privacy policy. 

Many petitions have been filed in the Apex Court against this policy and since it is against the fundamental right to privacy, a withdrawal of the privacy policy is feasible and the users should be allowed to give informed consent for collection of their personal data.

ARE WRIT PETITIONS AGAINST PRIVATE BODIES MAINTAINABLE?

The term Writ is defined by the Oxford Dictionary as a form of written command in the name of a legal authority to act or abstain from acting in a particular way. Writs are not new to the legal system, their existence commenced during Monarchy itself, i.e., the Monarch would send a written order to a person (government official) to act in a specified manner. As time passed, this authority to order a government official to act or abstain to act in a certain way has been passed to the Constitutional Courts. During the making of the Constitution of India, the makers inserted Article 32 and Article 226 empowering the Supreme Court of India (SCI) and the High Courts respectively to issue writs and gave the citizens of India a right to file writ petitions.

The term petition was added to the term writ, making it a Writ petition, which means a request by the people to the legal courts to issue a writ to a government official(s). Article 32 gives people the power to move the SCI for the enforcement of the rights guaranteed in Part III of the Constitution and also empowers the SCI to issue writs. Similarly, Article 226 empowers the High Courts in India to issue writs and the citizens to file for writ petitions. There are five types of writs, i.e., Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo-Warranto.

The SCI in the case of Federal Bank Lt. v. Sagar Thomas & Ors. (2003) clarified against whom a writ petition cannot be filed. It stated that private companies, including private banks would normally not be amenable to the writ jurisdiction under Article 226 of the Constitution. Relying on this ruling of the SCI, the Allahabad High Court in the case of Arif Khan v. Branch manager Mahindra Finance Sultanpur & Another (2021) dismissed the writ petition by the petitioner stating that Mahindra Finance being purely a private body is not an authority within the meaning of Article 12 of the Constitution which defines ‘State’ as “the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

In this case, the petitioner sought the issuance of a Writ of Mandamus directing the respondents, i.e. Mahindra Finance, Sultanpur, to provide a complete statement of a certain customer ID to the petitioner with the due amount and to take the said amount in easy instalments. The court had to dismiss this petition because enforcement of rights of the Indian citizens can only be against the State (government) authorities and according to the Article 226 of the Constitution, the Courts can only issue writs against the government authority or government persons.

However, the SCI in the case of Federal Bank Lt. v. Sagar Thomas& Ors. (2003) provided an exception stating that a private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce a statutory obligation or such obligations of public nature.

The fact that writ petitions can only be filed against government authorities or such connected persons and not private persons unless it affects the public at large or it is associated with a statutory body, is already known and the Allahabad High Court in the present matter has re-emphasized the same.

Writ petition can’t be filed against a judicial order of hc-supreme court

The Apex Court in a recent judgement-  “Neelam Manmohan Attavar vs Manmohan Attavar (D) Thr LRs” reinstated a crucial point of law. 

It held that a writ petition under Article 226 of the Indian Constitution is not maintainable to challenge a judicial order or any order which has been passed by the High Court in exercise of its judicial powers. 

The decision was laid by a two judge bench consisting Justice DY Chandrachud and Justice KM Joseph in exercise of power of the Supreme Court to transfer cases under Article 139A.

The petitioner in the present case filed a writ petition under Article 226 in order to challenge a judgment dated 31 July 2018 delivered by a Single Judge of the Karnataka High Court under its criminal revisional jurisdiction. The petitioner prayed through the petition that the said judgement may be declared void/disabled/recalled and a fresh hearing be instituted before a higher/full bench. 

The petitioner based her submissions on the grounds that the order had not been written by the Judge of the HC and that while disposing the criminal revision the court had exercised its jurisdiction in a manner inconsistent with the provisions of Section 397 of the Code of Criminal Procedure 1973. Further, she challenged the findings of the court; deeming them to be erroneous. 

The respondent claimed that the litigant is not without any remedies since she can approach the court through Letters Patent Appeal or by way of a review or through article 136.

The court ruled in favour of the Respondent and disallowed the Writ Petition on grounds of maintainability. 

But SC left open the rights and remedies available to the petitioner by way of a Special Leave Petition under Article 136 of the Constitution to assail the judgment of the Single Judge bench.