Some recent landmark decisions

For the benefit of our readers and also to catch-up the recent developments, we are running in this post short notes on some of the landmark decisions in recent past. These decisions are landmark on various counts; either they reveal a jurisprudence shift or they deal with a legal controversy which was vividly followed up by national media and the citizens alike. Some are landmark on account of the sheer fact of these decisions being rendered by larger bench of the Supreme Court and thus an important and likely stable constitutional declaration flows from these decisions.

Constitution Bench decisions

1. This series of two decisions is actually a revisit of the constitutional stipulations relating to appointment of judges amongst the High Courts and the Supreme Court. The law was firmly settled by earlier larger bench decisions. However the incumbent Government initiated the process which led to amendment of the Constitution. This amendment was meant to bring in place a new positive legal order regarding the appointment process. In the first decision i.e. Supreme Court Advocates-on-Record Association v. Union of India [Writ Petition (Civil) No. 13 of 2015, decision dated 16.10.2015], a five-judges bench of the Supreme Court declared the amendment to the illegal being contrary to the basic constitutional principles. In essence, therefore, they revived the appointment process in place prior to this arrangement known as the 'Collegium'. However in this decision itself the judges agreed that there was room for improvement in the Collegium system and this led to the second decision. In this decision i.e. Supreme Court Advocates-on-Record Association v. Union of India [Writ Petition (Civil) No. 13 of 2015, decision dated 16.12.2015] the same five-judges of the Supreme Court broadly examined the suggestions received from various quarters towards improving the Collegium system, only to conclude that it was beyond the judicial realm to lay down the policy. On such account it directed the Government of India to frame 'Memorandum of Procedures' which would serve as the Working Document and lay down the protocol for the appointment of the judges. These decisions are landmark in various senses. Firstly they are by constitutional benches and thus carry significant weight. Secondly, there is a significant discussion on the 'basic structure principle' and also the importance of 'judicial review' and 'independence of judiciary', which are key constitutional tenets. Thirdly and more importantly, it is rare for the Supreme Court to declare as illegal a constitutional amendment and thus these decisions carry significant insight on the subject. 

 

 

2. The decision of another five-judges bench of the Supreme Court in Nabam Rebia v. Deputy Speaker [Civil Appeal No. 6203-6204/2016 decision dated 13.07.2016] is another significant decision for it delineates the scope and ambit of the powers vested in a Governor of a State under the Constitution. In this decision the Court was examining the allegations that the Governor did not adopt a bipartisan role which was expected of him and instead went beyond the scope of authority conferred upon him. In fact in this decision the Supreme Court reinstated the exective Government which had not found favour amongst the stipulations of the Government, which makes it perhaps an unprecedented decision on large counts. The case also involved the relationship between the Government and Speaker of a Legislative Assembly and how far could the Governor direct the Speaker to carry out specified functions. 

 

 3. Another decision, also of five-judges of the Supreme Court is in the case of Union of India v. V. Sriharan Writ Petition (Criminal) No. 185/2014 decision dated 02.12.2015] which dilutes a number of decisions on the subject as also the common understanding to declare that a life sentence means imprisonment till the end of life. There was a common understanding that life sentence means 14 years. However the Court has declared otherwise and held that the power of the Government to remit sentence after 14 years is not a matter of right but only a possibility for early release. This decision also declares that the Court has power to give a fixed sentence (say 20 years) to a person without any possibility of early release.

Some other decisions, but not of constitution benches of Supreme Court

4.  This decision in Kedar Nath Yadav v. State of West Bengal [Civil Appeal No. 8438/2016] runs into over 200 pages and relates to validity of land acquisition in West Bengal relating to Tata Nano plant. Dealing with a very emotive issue for the local residents and also a politically sensitive matter for the incumbent government, the Supreme Court has dealt extensively with land acquisition laws and the interse considerations required to be considered for upholding acquisition of land. In conclusion the Supreme Court has directed that "land shall be given back to the land owners and compensation if any paid to them shall not be recovered from them those who have not collected it are free to collect the same in lieu of damages for deprivation of possession for ten years".


5.  Additionally, another Supreme Court decision is the case of Shreya Singhal v. Union fo India [Writ Petition (Criminal) No. 167 of 2012, decision dated 24.03.2015] where certain provisions of the Information Technology Act, 2000 has been declared as unconstitutional and illegal for they are impediment to freedom of speech and expression guaranteed by the Constitution to its citizens. This decision renders interesting insights, also on a comparative legal analysis perspective, the various dimensions of free-speech jurisprudence and its ambit under the Constitution of India. A must read for students.


6. In a very recent decision in Chandrakeshwar Prasad v. State of Bihar [Criminal Appeal No. 932 of 2016, decision dated 30.09.2016] the Supreme Court has cancelled the bail granted by the High Court to Md. Shahabuddin. This decision presents interesting insights over the competing considerations between personal liberty of an individual and the larger societal interests. Referring to its earlier decisions on the subject, the Supreme Court held that it was important to balance the "fundamental right to individual liberty with the interest of the society".


7. While this is not a decision, this nonetheless has severe ramifications for the future of Supreme Court. In V. Vasanthakumar v. H.C. Bhatia [Writ Petition (Civil) No. 36 of 2016 order dated 13.07.2016] three judges of the Supreme Court have referred to a larger bench adjudication of certain constitutional questions, which are as under;

1. With access to justice being a fundamental right, would the said right stand denied to litigants, due to the unduly long delay in the disposal of cases in the Supreme Court?
2. Would the mere increase in the number of judges be an answer to the problem of undue delay in disposal of cases and to what extent would such increase be feasible?
3. Would the division of the Supreme Court into a Constitutional wing and an appellate wing be an answer to the problem?
4. Would the fact that the Supreme Court of India is situate in the far North, in Delhi, rendering travel from the Southern states and some other states in India, unduly long and expensive, be a deterrent to real access to justice?
5. Would the Supreme Court sitting in benches in different parts of India be an answer to the last mentioned problem?
6. Has the Supreme Court of India been exercising jurisdiction as an ordinary court of appeal on facts and law, in regard to routine cases of every description?
7. Is the huge pendency of cases in the Supreme Court, caused by the Court not restricting its consideration, as in the case of the Apex Courts of other countries, to Constitutional issues, questions of national importance, differences of opinion between different High Courts, death sentence cases and matters entrusted to the Supreme Court by express provisions of the Constitution?
8. Is there a need for having Courts of Appeal, with exclusive jurisdiction to hear and finally decide the vast proportion of the routine cases, as well as Article 32 petitions now being decided by the Supreme Court of India, especially when a considerable proportion of the four million cases pending before the High Court may require review by a higher intermediate court, as these judgments of the High Courts may fail to satisfy the standards of justice and competence expected from a superior court?
9. If four regional Courts of Appeal are established, in the Northern, Southern, Eastern and Western regions of the Country, each manned by, say, fifteen judges, elevated or appointed to each Court by the Collegium, would this not satisfy the requirement of ‘access to justice’ to all litigants from every part of the country?
10. As any such proposal would need an amendment to the Constitution, would the theory of ‘basic structure’ of the Constitution be violated, if in fact, such division of exclusive jurisdiction between the Supreme Court and the Courts of Appeal, enhances the efficacy of the justice delivery system without affecting the independence of the judicial wing of the State?
11. In view of cases pending in the Supreme Court of India on average for about 5 years, in the High Courts again for about 8 years, and anywhere between 5- 10 years in the Trial Courts on the average, would it not be part of the responsibility and duty of the Supreme Court of India to examine through a Constitution Bench, the issue of divesting the Supreme Court of about 80% of the pendency of cases of a routine nature, to recommend to Government, its opinion on the proposal for establishing four Courts of Appeal, so that the Supreme Court with about 2500 cases a year instead of about 60000, may regain its true status as a Constitutional Court?

8. And then in this series, we refer to the decision of the Delhi High Court in Government of National Capital Territory of Delhi v. Union of India [Writ Petition (Civil) No. 5888/2015 decision dated 04.08.2016] where the High Court has opined upon the interse powers of the Government of India and the Government of NCT of Delhi. Running into about 200 pages, this decision relied upon a nine-judge Supreme Court decision in New Delhi Municipal Corporation v. State of Punjab (1997) 7 SCC 339 to hold that Delhi continues to be Union Territory, albeit with special status, but does not enjoy statehood. This decision opines upon a long pending political struggle in Delhi and may not be the last word on the subject as the Supreme Court is currently seized of the dispute. Nonetheless various interesting aspects relating to the special position of Delhi and its legal attributes.

Duty of Advocates: Immortal words and advice of J. Chagla

Browing through the autobiography of Justice M.C. Chagla - Roses in December - we came across his views on the legal professionals. The words, which form the backdrop and fulcrum of the duty of Advocates, in our view are a must read for each and every professional in the field. So that we do not miss out in any part of it, each word being of vitality, we reproduce the relevant part the way it appears in his autobiography.

J. Chagla needs no introduction to the legal fraternity. He was one of the most admired and known judges of the Bombay High Court who retired as its Chief Justice refusing to be elevated as a judge of the Supreme Court. We only hope that the legal fraternity will gracefully recount his immortal words. 

Liability of Intermediaries under the amended Information Technology Act

This week we have an article from relating to the liabilities of intermediaries under the recent amendments carried out in the Information Technology Act by the Parliament. We had earlier written on the decision of an Australian court declaring that Internet Service Providers were not liable for illegal download, being of the view that the ISP could not control the unauthorised acts of the users. The Indian law has been amended to protect the ISP on similar lines, subject to certain conditions. We have this paper from Mr. Pavit Singh Katoch who holds a masters degree in Law and specializes in Intellectual Property and Information Technology laws where he has sought to explain the changes in lucid detail.

Liability of Intermediaries under the amended Information Technology Act

Mr. Pavit Singh Katoch

After its notification in the official gazette, Information Technology Amendment Act, 2008 finally came into force on October 27, 2009. Under the Information Technology Act, 2000 intermediary was defined as any person, who on behalf of another person, receives, stores or transmits that message or provides any service with respect to that message. However, the Information Technology Amendment Act has clarified the definition “Intermediary” by specifically including the telecom services providers, network providers, internet service providers, web-hosting service providers in the definition of intermediaries thereby removing any doubts. Furthermore, search engines, online payment sites, online-auction sites, online market places and cyber cafés are also included in the definition of the intermediary

Section 79 deals with the immunity of the intermediaries. Section 79 of the old Act (IT Act 2000) was vaguely drafted and was considered harsh on the intermediaries. One such example is the case of Baazee.com (now renamed as ebay.in), an auction portal which is owned by the American auction giants Ebay.com. In this case, the CEO of the company was arrested for allowing an auction of a pornographic video clip involving two students on his website. Under the old Act, intermediaries were exempted only to the extent if they proved that they had no knowledge of the infringement or they had exercised all due diligence to prevent such infringement or offence. This kind of approach made websites liable if constructive knowledge was proved or it lacked sufficient measures to prevent such infringement. It is virtually impossible for any website, having medium traffic, to monitor its contents and involves cost implications as well.

This draconian approach led to the amendment of the Information Technology Act 2000. Under the Information Technology Amendment Act, 2008, Section 79 has been modified to the effect that an intermediary shall not be liable for any third party information data or communication link made available or hosted by him. This is however subject to following conditions:

• the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted;
• the intermediary does not initiate the transmission or select the receiver of the transmission and select or modify the information contained in the transmission;
• the intermediary observes due diligence while discharging his duties.

As a result of this provision, social networking sites like Facebook, Twitter, Orkut etc. would be immune from liability as long as they satisfy the conditions provided under the section. Similarly, Internet Service Providers (ISP), blogging sites, etc. would also be exempt from liability.

However, an intermediary would loose the immunity, if the intermediary has conspired or abetted or aided or induced whether by threats or promise or otherwise in the commission of the unlawful act. Sections 79 also introduced the concept of “notice and take down” provision as prevalent in many foreign jurisdictions. It provides that an intermediary would lose its immunity if upon receiving actual knowledge or on being notified that any information, data or communication link residing in or connected to a computer resource controlled by it is being used to commit an unlawful act and it fails to expeditiously remove or disable access to that material.

Even though the intermediaries are given immunity under Section 79, they could still be held liable under Section 72A for disclosure of personal information of any person where such disclosure is without consent and is with intent to cause wrongful loss or wrongful gain or in breach of a lawful contract. The punishment for such disclosure is imprisonment extending upto three years or fine extending to five lakh rupees or both. This provision introduced under IT Amendment Act, 2008, is aimed at protection of privacy and personal information of a person.

The most controversial portion of the IT Amendment Act 2008 is the proviso that has been added to Section 81 which states that the provisions of the Act shall have overriding effect. The proviso states that nothing contained in the Act shall restrict any person from exercising any right conferred under the Copyright Act, 1957 and the Patents Act, 1970. This provision has created a lot of confusion as to the extent of liability provided under section 79.

Section 79 under IT Amendment Act, is purported to be a safe harbor provision modeled on the EU Directive 2000/31. However, Information Technology Amendment Act 2008 left a lot to be desired. Both EU and USA provide specific exclusion to internet service providers under the respective legislations. In order to clarify the issue and put the controversy to rest, Indian legislators need to insert a similar provision proving immunity to ISP in the Copyright Act, 1957.

It is interesting to note that even auction sites, search engines and cyber café s fall within definition of intermediaries. There is no parallel legislation in the world which provides immunity to such a wide range of intermediaries. This can be reason behind addition of proviso to Section 81. Nevertheless, Information Technology Amendment Act 2008 makes a genuine effort to provide immunity to the intermediaries but has failed to achieve its objective due to loose drafting of few provisions. Indian Legislators need to plug in these gaps and provide indispensable immunity to the ISPs to enable them to operate in India without any fear and inhibitions.

{The Author holds a Masters Degree in Law from Queen Mary's College, London and specializes in Intellectual Property and Information Technology Laws. Current the author is associated with a reputed law firm in India. Views expressed herein are his own. The author may be contacted at affable.sonu [@] gmail [dot] com}

Air Travel, International Airlines and Liabilities

This week we have an article from an expert in the law relating to carriage by Air and grievance redressal as he has experience of bringing this part of aviation law in practice/litigation. Mr. Sumit Agrawal, has penned his thoughts on the issue relating to liability of international airlines in India in as much as it relates to loss or destruction or delay of baggage by the concerned airline. The author in particular has taken up the task of enumerating the changes brought about in law last year by the amendment carried out in the Carriage by Air Act which deals with such issues. Rightly so, we have tagged this post as one of our series on Expert's Corner.

Air Travel, International Airlines and Liabilities

Sumit Agrawal

Losing luggage on foreign land is a life-time experience. Especially when you are about to start a journey for 3 countries and you are told by an airline that everything (from your shoes to fancy hat, digital camera to mobile charger) you packed to enjoy a 2-week tour is not available. One will wonder that with all sorts of baggage check-ins, bar-coding, scanning, baggage-tickets, and security exit-checks, how an airline could separate you from your bag. Believe it or not, you will call yourself in this situation unfortunately unlucky and that airline as deficient service provider.

In that situation, you will be reminded of a law called Consumer Protection Act, 1986 which defines "Deficiency" broadly as instances of faulty, imperfect, or any inadequacy in services. In such cases, Consumer Disputes Redressal Forums and Commissions have authority and jurisdiction to award compensation for delayed, lost or damaged baggage including legal costs, compensation for mental trauma and interest. There is another law, in such cases on which customers should fall back and that is Carriage by Air (Amendment) Act, 2009 a newly passed law but hardly known by 'aam aadmi'.

It is interesting to note that India recently had become 91st country to have ratified Montreal Convention 1999 which throws-out the archaic system of "compensating by weight" and adopted the more progressive, more consumer friendly and internationally recognized "compensate by passenger" system in cases of delayed, lost, damaged or destructed baggage. Director General of Civil Aviation (India) had deposited with International Civil Aviation Organization (ICAO) on 1st May 2009, the Instrument of Accession by India to the Convention for Unification of Certain Rules for International Carriage by Air done at Montreal.

Under Article 253, read with Entries 13 and 14 of Union List of Schedule VII to the Constitution of India, Parliament is competent to make a law for implementing “any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” In a quickly follow-up, the Carriage by Air (Amendment) Act, 2009 incorporating the provisions of this Convention come into force from 1st July, 2009. Under Schedule III, the liability of the carrier (airlines) in case of destruction, loss, damage or delay can go up to 1000 Special Drawing Rights (SDRs) for each passenger and in case the passenger has made special declaration of higher value at the time of check-in then the liability can go upto such declared sum. SDRs are a currency conversion measure available on the website of International Monetary Fund {have a look at these links [1] and [2]}, where currently 1 SDR values around Rs. 75. Hence, the airlines’ liability stands up to Rs. 75,000 per passenger for lost baggage if the values of items lost are within this limit and are allowed to be carried by law, say non-alcoholic, legitimate etc.

The new law also says that any provision tending to relieve the airlines of liability or to fix a lower limit than that which is laid down in statutory rules shall be null and void saving the contract itself. In terms of Rule 22, a court in addition to these limits can provide litigation costs and other expenses including interest. It is also interesting to note that this is applicable on airlines irrespective of nationality of aircraft provided the airline has a presence in India.

Until few years ago, Warsaw Convention was followed in India which provided for four choices of jurisdiction for filing of a claim by a passenger or his legal heirs under such cases, namely, (1) the place where the ticket was issued or the contract of carriage was made, (2) the principal place of business of the carrier, (3) the place of destination of the passenger, or (4) the place of the domicile of the carrier. But now, the Montreal Convention 1999 adds a fifth jurisdiction, i.e. the place of domicile of the passenger, provided the airlines has a presence there. Thus, this enables an Indian to file his claim in India even if the journey was undertaken outside India and ticket purchased outside India, provided the carrier has a presence in India.

Therefore, gone are the days when airlines could escape their obligations under the pretext of their kilo-based iron-clad legally drafted policy compensating 20 US dollars for a kilo or by including some other hidden conditions. By bringing the amendment, the Indian Parliament has not only brought Indian Carriage law in line with international regime but has also introduced a strict liability regime on airlines' dealing with customers belongings which they entrust to airlines with a duty to care.

Hopefully, the new law would act as a breather for harassed passengers from various tactics of high-headed airlines trying to bring compensation to the absolutely insignificant sum.

Parliament Has Done Its Duty, Now Let Airlines Do Theirs.

{The Author is an alumnus of National Law University, Jodhpur and associated with Securities and Exchange Board of India (SEBI) as Legal Officer in its Integrated Surveillance Department. Views expressed herein are his own. mailsumitagrawal [@] gmail [dot] com }

Supplement

P.S.: Since the purpose of this piece is to make more and more people aware, Shri V Umakanth, Formerly Partner, Amarchand & Mangaldas & Suresh A Shroff & Co has also posted on the author's request, this piece on his blog indiacorplaw.blogspot.com .

Why Intellectual Property? (Expert's Corner)

As we had promised, we finally start with our expert articles. [click here for more on that] The first article on this is by Mr. Rahul Dutta, founder of 'Intellectual Property Lab'. [For further information on this regard or for contacting him, kindly visit IP Lab website.] In his first post, Mr. Dutta writes in simplest of terms as to why we need Intellectual Property.

Why Intellectual Property?

Intellectual capability of human beings makes them the best creation of nature. This intellectual capability has played a great role in the development of human civilizations. We owe our food and taste of food to the inventor of fire. We owe our modes of transportation to the inventor of wheel. The list of valuable inventions is endless but the result of which made our lives comfortable and more efficient. Every invention has two aspects- innovation aspect and the commercialization of the innovation. Hence development of a product indicates towards blessings of goddess of intelligence and goddess of wealth. Truly, intellectual property is nothing else but blessings of intelligence and wealth.

We learn from our experience and society. We made our contribution from our original learning and thus enrich knowledge base of our society. This was how societies were progressing. Knowledge was accessible to all. Hence it was called public knowledge domain. Gradually concept of property came in and proved herself a subject of privilege to her owner. This later on ignited a race for winning more and more property. The positive aspect of it was that though people started with physical capabilities sooner or later realized importance of intellectual faculties in winning more and more property. Introduction of intellectual faculty started monopoly in knowledge and creation of private knowledge domains.

Since private knowledge domains were subject matter of wealth creation, people who had no right to access to those private domains tried to steal the knowledge from private knowledge domains. This forced private knowledge domain owners to keep private knowledge secret. This stopped or slowed the flow of knowledge and contribution of generations to the existing public knowledge domain. We have seen that civilizations developed due to the enrichment of existing public knowledge domain. This situation halted the process of development of civilization. This forced the requirement for development of legal system for protecting private knowledge domain and restarts the flow of knowledge.

One man's right is obligation for others to honour his right. It means creation of legal rights requires balancing rights-obligations equations. The challenge was to restore the flow of knowledge from private knowledge domains to public knowledge domain and bring an acceptable legal regime for protecting rights of private knowledge domain holders. It was solved by offering time bound monopoly over the new knowledge created by any one through intellectual labor to win economical benefits out of it and pass on the knowledge to the public knowledge domain after the expiry of monopoly time. Public at large was supposed to respect the monopoly knowledge rights because they in turn were exploiting the benefits of the knowledge by paying a fee for the monopoly duration and later on after expiry of monopoly the knowledge was to be transferred into public knowledge domain. The monopoly owners were offered the exclusive rights to fetch economical benefits out of their knowledge by introducing the knowledge in public. This balanced the rights-obligations equations. This system gave birth to patent, trademark, copyright, geographical indication, industrial design, trade secret and integrated circuit layout design. These seven tools form modern intellectual property rights tool.

Follow-up: The next article in this series by Mr. Dutta will be on 'Patents'.