Judicial Response On Bandh

Sk Jahangir Ali,Asst.Prof,Balurghat Law College

“Bandh” is a Hindi word which means “closed.” In India it has become a norm for political parties and organizations to call for ‘Bandh’s (shutdown) when they want to be heard.( Is ‘Bandh’ Constitutional or Unconstitutional in India? available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2212917).More than a decade after the Kerala high court ruled against the enforcement of hartals in 2000, Calcutta high court on Thursday directed the state administration to ensure normal life against forcible shut down on February 20 and 21 when 12 trade unions have called a strike. The administration has been asked to keep all essential services, including courts, running during these two days. While upholding the right to work that has taken a back seat in Bengal where trade unions have been flaunting the right to protest only, a division bench of Chief Justice Arun Mishra and Justice Joymalya Bagchi directed the director general of police to deploy adequate force at all points in the state – roads, railway tracks, railway stations, schools, colleges, market places – to remove blockades. Taking a step ahead, the bench wanted the administration to see to it that no one, willing to work on these two days, is prevented from joining duty. Allaying fears of disruption and damage to property, the division bench held those who called the strike liable for the disruption or damage, and observed that organizations calling the strike will have to compensate for the loss. The bench also directed all police control rooms to remain active on those days to avert “unlawful and illegal” activities. While passing the order, the division bench took note of the Supreme Court order, the order of the Kerala high court, and the preceding orders of the Calcutta high court and other high courts that had ruled that calling bandhs is unconstitutional. (Ensure normal life on bandh: Court,available at http://timesofindia.indiatimes.com/city/kolkata/Ensure-normal-life-on-bandh-Court/articleshow/18508995.cms).No force can be applied to observe the bandh, it was held.( No force can be applied to observe bandh: High Court, available at http://www.thestatesman.net/index.php?option=com_content&view=article&id=443636&catid=35).On 6th January, 2010 Gauhati High Court declared that “Bandh” is illegal and unconstitutional. It violates citizen’s fundamental rights. Chief Justice Jasti Chelameswar and Justice Arun Chandra Upadhyay in the light of a 1997 Supreme Court order upholding a Kerala High Court’s judgment declared bandhs are illegal. Gauhati High Court gave the Judgment after hearing two separate public interest litigations (PILs) which were filed by two citizens in 2005, seeking declaration of “bandh”s as illegal and unconstitutional in Assam and Meghalaya. The petitioners told that frequent “bandh”s affect the economy and education.(The Telegraph ,7th Jan 2010) In 2004, the Bombay High Court fined the Shiv Sena and BJP Rs 20 lakh for organising a bandh in Mumbai to protest bomb blasts. The court permits general strikes which protest against a specific establishment. But, they do not support total strike.(Open Magazine, 14th Aug 2010).In a landmark decision in Bharat Kumar , a full bench of the Kerala High Court has declared “Bandhs” organized by political parties from time to time as unconstitutional being violative of the fundamental rights of the people. The court refused to accept it as an exercise of the freedom of speech and expression by the concerned party calling for the bandh. When a bandh is called, people are expected not to travel, not to carry on their trade, not to attend to their work. A Threat is held out either expressly or impliedly that any attempt to go against the call for bandh may result in physical injury. A call for Bandh is clearly different from a call for general strike or hartal. There is destruction of public property during bandh.The High Court has directed that a call for bandh by any association, organization or political party and enforcing of that call by it, is illegal and unconstitutional. The High Court has also directed the sate and all its law enforcement agencies to do all that may be necessary to give effect to the court order. The Supreme Court has accepted the decision of The Kerala High Court. The Supreme Court refused to interfere with the High Court decision. The Court has accepted the distinction drawn by the High Court between a ‘bandh’ and a strike. A bandh interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing loss in many ways. (Bharat Kumar K. Palicha v State Of Kerala, AIR 1997 Ker 291).In Ranchi Bar Association v. State Of Bihar , following the Apex court decision mention above, the Patna High Court has ruled that no party has a right to organize a “Bandh” causing the people by force to stop them from exercising their lawful activities. The Government is duty bound to prevent unlawful activities like bandh which invades people’s life, liberty and property. The Government is bound to pay compensation to those who suffer loss of life, liberty or property as a result of a bandh because of the failure of the government to discharge its public duty to protect them. (AIR 1999 Pat 169).In appropriate cases, even the organizers of the bandh may be directed to pay compensation. Any organization interfering with the functioning of the courts commits contempt of court and can be punished accordingly. A peaceful strike which does not interfere with the rights and properties of the people is however not illegal. In the instant case, the High Court did award compensation against the State Government for loss of property and death of a person during the bandh for failure of the authorities to take appropriate action and provide adequate protection to the people’s life, liberty and property. The Government failed to discharge its public duty to protect the people during the bandh. (Ibid) .Supreme Court’s judgment in T.K. Rangarajan vs. State of Tamil Nadu (2003), declaring the right to strike is illegal, and ‘bandh’ is unlawful.

Taking a serious note of various instances of large-scale destruction of public and private properties in the name of agitation, bandhs, hartals and the like, suo motu proceedings were initiated by the Supreme Court in Destruction of Public & private properties , In re case ,[ (2007)4 SCC474.] After perusing various reports filed two committees were appointed ;one headed by a retired Supreme Court Judge, Justice K.T.Thomas(K.T.Thomas Committee), and other headed by Mr. F.S.Nariman, a senior member of the legal profession(Nariman Committee).Both the Committees submitted their reports separately. After considering the reports of the two Committees and hearing the matter, the Supreme Court held the recommendations of the Thomas Committee are wholesome and need to be accepted. To effectuate the reports of the two Committees and adding teeth to the enquiry, the following guidelines are to be observed as soon as there is a demonstration organized:

 

1. The organizer should meet the police to review and revise the route to be taken and to lay down conditions for a peaceful march of protest;

2. All weapons, including knives , lathis and the like should be prohibited;

3. All undertaking should be provided by the organizers to ensure a peaceful march with marshals at each relevant jurisdiction;

4. The police and the State Government should ensure videography of such protests to the maximum extent possible;

5. The person-in-charge to supervise the demonstration should be SP(if the situation is confined to the district) and the highest police officer in the State, where the situation stretches beyond one district;

6. In the event the demonstrations turn violent , the officer-in-charge should ensure that the events are videographed through private operators and also request such further information from the media and others on the incidents in question;

7. The police should immediately inform the State Government with reports on the events , including damage , if any , caused by the police; and

8. The State Government should prepare a report on the police reports and other information that may be available to it and should file a petition including its report in the High Court in question to take suo motu action.

 

Competition Law and Intellectual Property Rights: Confronting Paradigms

Aviral Saxena

I. INTRODUCTION

World has changed drastically after globalization. In other words, as coined by Thomas Friedman, the world is flat now. Among others, markets internationally could not have remained untouched. Markets have been affected drastically. Some have reengineered, some have revamped and some in a state of flux. What unfortunately has been observed in certain quarters is that unregulated markets have the tendency to assume monopolistic or near monopolistic character thereby affecting consumer welfare.

We all realize that Markets have an important role to play in any economy be it developed or developing. Economic theory brings out the clearly the benefits that flow from a market of competitive nature. A market where there is level playing field for players of all sort operates freely. Efficiency is associated with competition and the efficient functions of the markets could be achieved only when there is competition. Regulatory framework therefore becomes imperative to halt the degeneration of the markets to a monopolistic or a near-monopolistic situation.

A. What is Competition Policy?

It basically promotes efficiency and maximizes welfare. Competition Policy essentially comprises in place a set of policies that promotes competition in local and national markets, which includes a liberalized trade policy, openness to foreign investments and economic deregulation .

B. What is Competition Law?

It basically comprises legislation, judicial decisions and regulations specifically aimed at preventing anti-competitive business practices and unnecessary government interventions, avoiding concentration and abuse of market power and thus preserving the competitive structure of markets .

II. IPR AND COMPETITION LAW: NECK to NECK

Competition law and IPRs policies are bound together by the economics of innovating and an intricate web of legal rules that seeks to balance the scope and effect of each policy.

IPRs protection is a policy tool meant to foster innovation, which benefits consumers through the development of new and improved goods and services, and spurs economic growth. It bestows on innovation the right to legitimately exclude for a limited period of time, other parties from the benefits arising from new knowledge and more specifically from the commercial use of innovative products and processes based on that new knowledge. In other words, innovators or IPR holders are rewarded with a temporary monopoly by the law to recoup the costs incurred in the research and innovation process. As a result, IPR holders earn rightful and reasonable profits so that they have incentives to engage in further innovation.

Competition law on the other hand, has always been regarded by most as essential mechanism in curbing market distortions, disciplining anti-competitive practices preventing monopoly and abuse of monopoly, inducting optimum allocation of resources and benefiting consumers with fair prices, wider choices and better qualities. It therefore ensures that the monopolistic power associated with IPR is not excessively compounded or leveraged and extended to the detriment of competition. Besides seeking to protect competition and the competitive process which in turn prods innovations to be first in the market with a new a product service at a price and quality that underscores the importance of stimulating innovation as a competitive input, and thus also works to enhance consumer welfare.

III. REGULATING IPR vis-a-vis COMPETITION LAW

As a piece of individual property – IPRs are fully subject to general anti-trust principles because what is conferred upon its owner is precisely that autonomy of decision in competition and freedom of contracting according to individual preferences that recalls from any private property no matter tangible or intangible and that is the object of and connecting factor for restraint of competition.

Competition law, thus, while having no impact on the very existence of the IPRs, operates to contain the exercise of the property rights within the proper bounds and limits which are inherent in the exclusivity conferred by the ownership of intellectual assets. This starts the tussle when exercise of IPRs give rise to some competition concerns because of anti-competitive dimensions that it may embody.

Competition law is a framework of legal provisions designed to maintain competitive market structures. Competition laws in general seek to:-

a) prohibit anti-competition agreements

b) prevent abuse of dominant position and

c) regulate mergers and acquisition .

However Section 3(5) defines the very interface between the paradigm of Competition law and IPR. It states that nothing contained in this section shall restrict:-

1) The right of any person to restrain any infringement of or to impose reasonable conditions , as may be necessary for protecting any of his rights which have been or may be conferred upon him under:

a) The Copyright Act, 1957

b) The Patent Act, 1957

c) The Trademarks Act, 1957

d) The Geographical Indication of Goods(Registration & Protection) Act, 1999

e) The Design Act, 2000

f) The Semi-Conductor Integrated Circuits Layout Design Act, 2000.

Broadly speaking, IPRs related competition issues include:-

1) Exclusionary terms in the licensing of IPRs, specifically the inclusion of restrictive clauses such as territorial restraints, exclusive dealing arrangement, tying or grant back requirements in licensing contracts

2) Use of IPR to reinforce or extend the abuse of dominant position on the market unlawfully.

3) IPRs as an element of mergers and co-operative arrangements.

4) Refusal to deal

Case of Mahyco-Monsanto

Mahyco-Monsanto( a 50-50 joint venture between Maharashtra Hybrid Corporation and American Agricultural Company) was found guilty of price gouging ( price above the market price when no alternative retailer is available) in a Bt Cotton case filed by the Andhra Pradesh government and some civil society organizations before the MRTP Commission of India. Mahyco-Monsanto was charging an excessively high royalty fee for its Bt gene which made the seed too expensive for the farmers. As there was no competition due to their IPR on Bt cotton seeds, Mahyco-Monsanto had a monopoly and had acted arbitrarily .

The Competition law applies to IPR in relation to abuse of dominant position and combination. Therefore abuse of dominance due to an IPR is liable for action under the Indian Competition Act just as IPR- related dealings in combination leading to an anti – competitive effect.

IV. THE OTHER VIEW: COMPLEMENTARY IN NATURE

The second view contends that competition law continues to be a vital means of ensuring continued innovation and economic growth. The aims and objectives of IPRs and competition laws are complementary, as both aims to encourage innovation (investment in research and development), competition (use of innovation in the economy) and enhance consumer welfare (protecting consumers from exploitation).

V. HARMONIZING IPR WITH COMPETITION LAW

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO members. It was negotiated at the end of Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994. India is a signatory for the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).

The TRIPS agreement introduced intellectual property law into the international trading system for the first time and remains the most comprehensive international agreement on intellectual property to date.

TRIPS Agreement covers 9 categories of Intellectual Property: — they are Copyright rights, including the right of performers, producers of sound recordings and broadcasting organization, geographical indications, including appellations of origin , industrial designs, integrated circuit layout designs, patents, monopolies for the developer of new plant varieties, trade mark, trade dress, and undisclosed or confidential information .

TRIPS ensures protection and enforcement of all intellectual Property should result in social and economic welfare and balance of rights and obligations. Arising out of this, TRIPS does try to achieve a degree of balance between Competition law (protecting the consumers) and Intellectual Property Rights (protecting the innovators). Some of the tools provided to attain a degree of balance are parallel imports (Section 6), Compulsory Licensing (Section 31) and Control of anti Competitive Practices (Section 40).

 

A. Parallel Imports

Parallel Imports are imports of a patented or trademarked product from a country where it is already marked. For e.g.:- in Mozambique 100 units of Bayer’s CIPROFLOXACIN(500mg) costs US$ 740 but in India Bayer sells the same drug for US$ 15 (owing to local generic competition) Mozambique could import the product from India without Bayer’s consent.

According to the theory of exhaustion of IPR, the exclusive right of the patent holder to import the patented product is exhausted and thus ends, when the product is first launched on the market. When a state or group of states applies this principle of exhaustion of IPRs in a given territory parallel importation is authorized to all residents in the state in question. In a state that does not recognize this principle, however only the patent holder who has been registered has the right to import the protected product.

Sometimes referred to as “grey market” parallel imports often take place when there is differential pricing of the same product – either brand name or generic drugs—in different markets ( using owing to local manufacturing costs or market conditions). TRIPs agreement explicitly states that this practice cannot be challenged under the WTO dispute settlement system and so is effectively a matter of national discretion.

B. Compulsory Licensing

The TRIPS agreement allows compulsory licensing as part of the agreement‘s overall attempt to strike a balance between promoting access to existing drugs and promoting research and development into new drugs. Under TRIPS Article 31—a WTO member may in its domestic law provide for compulsory licensing of national or extreme emergency or in cases of public non-commercial use. Procedural safeguards require that the measure is used for essential products and that prior negotiations with the right holder have failed to obtain a reasonable result. TRIPs waive the requirement of prior negotiation in emergency cases or when the subject matter of the patent is required for public non-commercial use. The scope and the duration of the license shall be limited to the purpose for which it was authorized. The TRIPs Agreement does not specifically list the reasons that might be used to justify Compulsory Licensing. However, the DOHA DECLARATION on TRIPS and Public Health confirms that countries are free to determine the grounds for granting Compulsory Licenses. In Article 31, the TRIPS Agreement does prescribe a number of conditions which ought to have been fulfilled before issuing compulsory licenses. In Particular such conditions require that:-

a) Normally the person or company applying for a license must have tried to negotiate a voluntary license with the patent holder on reasonable commercial terms. Only if that fails can a compulsory license be issued and

b) even when a compulsory license has been issued the patent owner has to receive payment, the TRIPS Agreement says “the right holder” shall be paid adequate remuneration in the circumstances of each case , taking into account the economic value of the authorization but it does not define “adequate remuneration” or “economic value”.

Again, Compulsory Licensing must meet certain additional requirements:–

1) It cannot be given exclusively to licenses (e.g.—the patent holder can continue to produce)

2) It should be subject to legal review in the country.

Case of Natco Compulsory licensing in India

The first ever compulsory license application made in India was by Natco Pharma (Hyderabad based Indian Pharmaceutical Company) for the manufacture and exportation of Roche’s patented anti-cancer drug – ERLONITIB to Nepal, the Sub-Himalayan Kingdom. Besides ERLOTINIB, Natco Pharma had also applied for the issue of a second compulsory license to the IPO for manufacture and export of SUNITNIB also an anti-cancer drug .

C. Control of anti –Competitive practices in Contractual licenses

Article 40 of the TRIPS Agreement recognizes that some licensing practices or conditions pertaining to IPRs which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology.

Member countries may adopt consistently with the other provisions of the Agreement, appropriate measures to prevent or control practices in the licensing of Intellectual Property Rights which are abusive and anti-competitive.

The TRIPS provides for a mechanism where a country seeking to take action against such practices involving the companies of another member country can enter into consultations with that other member and exchange publicly available non-confidential information of relevance to the matter in question and of other information available to that member , subject to domestic law and to the conclusion of mutually satisfactory agreements concerning the safeguards of its confidentiality by the requesting member . Similarly, a country whose companies are subject to such action in another member can enter into consultations with that member.

VI. SUMMARY AND CONCLUSION

The interface between competition law and IPRs protection is very complex and multifaceted. It needs to be handled very carefully.

There are certain similarities between IPR and Competition Law. IPR system promotes innovation which is a key form of competition,, on the other hand , competition policy by keeping market open and effective , preserves the primary source of pressure to innovate and diffuse innovation . But there are also conflicts such as when as IPR serves to entrench market power. A regulatory balance therefore should be maintained.

Current developments indicate that the enforcement of competition laws no longer begins with the assumption that restrictive use of IP is necessary anti-competitive. Current enforcement instead starts with three basic assumptions about intellectual property .

First, intellectual property is comparable to other forms of property so that ownership provides the same rights and responsibilities.

Second, the existence of IP does not automatically mean that the owner has market power.

Third, the licensing of IP may often be necessary in order for the owner efficiently to combine complementary factors of production and thus may be pro-competitive.

Raghavan Committee observed that Innovation has always been a catalyst in a growing economy resulting in more innovation. The advent of fresh innovation give rise to healthy competition at macro as well as micro-economic levels .IP laws help protect these innovations from being exploited unlawfully. In view of this IP and Competition laws have to be applied in tandem to ensure that the rights of all stakeholders including the innovators and the consumer or public in general are protected.

Kindly Be An Advocate

Sk Jahangir Ali,Asst.Prof,Balurghat Law College

Most of the final year LL.B students of today want to get a job and they are not interested to do practice because they don’t have ‘God father’ and they would face problem to stand in this field. They thought that practicing field is very struggling field and it takes a lot of time to stand in this field. My point of view is that practicing field is the most charming field and advocacy is the noble profession. Advocates are just like demi God because justice comes from ‘Heaven’ through the help of Advocate. Social change, social revolution and social evolution come through the hands of advocates .So dear students please change your mindset. It is not true that you people always need ‘God father’ to get establishment in this field. It is not always true that the son/daughter of advocate has the monopoly in this profession. Just you need a good senior to learn the practice. Many Senior Advocates and advocates refer to the junior advocate and they praise their abilities and brilliance. I would also like to tell you people that in every field there is struggle. Listen, Ram Jethmalani and Arun Jetly, Harish Salve, Mukul Rohatagi and Abhishek Manu Singhvi etc are not built in a day. Just keep patience and put your tenacity in practicing field and one day you also will get good result. Look! No pain, no gain. Low risk low gain, high risk high gain. Practicing field is just like learning plus earning and sky is the limit of earning. Learned Advocates Salve, Rohtagi and Manusinghvi earn at Rs. 25 Lakh per day! Only practice can bring out your hidden talent in You.

 

INTROSPECTION TO BE A PRACTICING ADVOCATE

1. Are you an independent thinker?

2. Are you a confident and fluent speaker?

3. Do you like using language both to speak and to write?

4. Do your friends choose you to speak up for them?

5. Do you like to analyze problems and work out solutions?

6. Do you remain in control of yourself when you are angry?

7. Are you not easily intimidated?

8. Do you believe the strong should protect the weak?

 

INDEPENDENT PROFESSION

Dear you all, lawyers belong to an independent profession in two senses:

1. Advocates are not subordinate to the Government or to anyone else. Advocates are not dependent to any authority or anyone .They have their freedom to time and movement and are not bound by official time like the service man. Advocates always discharge their independent high standard responsibilities to the society at large.

2. Lawyers are ‘social engineer’ and they deal with all kind of problems of people from all sections of society, unlike say, doctors who are confined to medical problems or engineers who are confined to technical problems. Excellence Advocates have no limits to interpret the law for social, economic and political justice. Only advocates are called Learned. No other profession gets this dignity.

 

LAWYERS AND LEADERSHIP

Abraham Lincoln, the great American President during the American Civil war was a lawyer, and so was Robespierre, the great French leader during the French Revolution, Lenin, the great leader of the Russian Revolution of 1917 was a student of law. It is very relevant to say here that Barack Hussein Obama II, the President of United States has great law background. He worked as a civil rights attorney in Chicago and taught constitutional law at the University of Chicago Law School from 1992 to 2004. Prominent freedom fighters in India also belonged to the legal fraternity and played a leading part in the framing of Constitution of India. Gandhiji, Pandit Nehru, Dr.Ambedkar,Alladi Krishnaswami Iyer, K.M.Munshi to mention just a few. A best leader is the best pleader. Presently seventy five of the 543 members of the Lok Sabha and 73 of 244 members of the Rajya Sabha are lawyers in India. Present prominent politician lawyers in India are Arun Jethly,P Chidambaram,Sushma Swaraj,L.K Advani,Kapil Sibbal,A.Raja, Ram Vilas Paswan, SM Krishna, A.K Antony.

 

CREATING A CHARGE ON INDIAN PROPERTY TO SECURE A FOREIGN DEBT

Varsha Reddy

ON THE PROCEDURE FOR CREATING A CHARGE ON INDIAN PROPERTY TO SECURE A FOREIGN DEBT

A foreign entity may secure its loan given to an Indian entity by way of creating some form of security for the loan such as lien on a property owned by the Indian entity. It is essential to ensure that the foreign lender is a legal entity and has not transgressed the law in lending the money. The procedure governing the creation of such security is subject to Regulation 8 of Notification No. FEMA 21/RB-2000 dated May 3, 2000, and the foreign entity may create such a lien in accordance with the RBI guidelines on External Commercial Borrowings and Trade Credits.

The guidelines lay down a procedure for a foreign entity (“lender”) that seeks to secure its loan. This procedure is as follows:

1. The choice of security is left to the discretion of the lender.

2. In order to secure such property, the lender must obtain a No Objection Certificate. This will be granted to the lender by any AD Category – I bank. An AD Category-I Bank means a bank (Scheduled Commercial, State or Urban Cooperative) which is authorized under Section 10(1) of FEMA to undertake all current and capital account transactions according to the directions issued by the RBI from time to time.

3. Once the No Objection Certificate is obtained by the Indian entity (“borrower”) in favour of the lender the following documents have to be executed in order to enforce such security:

a. mortgage or lien agreement;

b. bank guarantee;

c. negotiable instrument;

d. and power of attorney

4. Such “No Objection” cannot be construed as a permission to acquire immovable asset (property) in India, by the overseas lender / security trustee.

5. In the event of enforcement / invocation of the charge, the immovable asset (property) will have to be sold only to a person resident in India and the sale proceeds shall be repatriated to liquidate the outstanding External Commercial Borrowing.

 

However, for a No Objection Certificate to be granted, a few requirements have to be met with. The bank may grant a “No Objection” only on the prior fulfillment of the following conditions by the borrower:

 

1. The External Commercial Borrowing (the loan) must be strictly in compliance with ECB Regulations and guidelines.

2. The loan agreement must have a specific security clause that makes it mandatory for the borrower to create a charge on immovable assets / financial securities / furnish corporate or personal guarantee

3. The loan agreement must be signed by both the parties i.e. lender and the borrower

4. The borrower must obtain a Loan Registration Number (LRN) from the RBI

5. The period of such charge on immovable assets has to expire with the maturity of the underlying ECB.

 

 

Homosexuality-the legal arguments against it

safder kazmi

377 IPC DOESN’T  VIOLATE THE PRINCIPLE OF EQUALITY ON THE BASIS OF SEX ENSHRINED IN ARTICLE 14 AND 15 OF THE CONSTITUTION OF INDIA.

Article 14 of the Constitution of India guarantees two rights that the State shall not deny:

  i.            Equality before the Law

ii.            Equal protection of laws within the territory of India.

The former would mean that irrespective of any discrimination, law has to be absolutely applicable in the same manner to all. This has been an adoption of rule of law in Britain, the theory propounded by A.V. Dicey.[1] And the latter, postulates the application of the same laws alike and without any discrimination to all persons similarly situated. It denotes equality of treatment in equal circumstances.[2] In order to violate the principle of equality enshrined in Article 14 of the Constitution of India, law has to discriminatory in nature in similar circumstances. However, § 377 by a bare perusal does not qualify to be in the arena of such violation because it is applicable only to whoever voluntarily commits the said offences. Section  377 is in conformity and is in furtherance of Article 14 as it is applicable on all without any remotest discrimination.

Article 14 forbids class legislation; it does not forbid reasonable classification of persons, objects and transaction by the legislature for the purpose of achieving specific ends. Classification should be reasonable, should fulfil the following two tests:

i.        That the classification is founded on an intelligible differentia and

ii.      That differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. [3]          

In the light of preceding paragraph, it is noteworthy to bring to the light the fact that § 377, IPC has been incorporated in the statute as a curative and punitive provision in reference to sexual offences which are otherwise not included in any other section. Therefore, it can be rightfully interpreted as a residuary clause for crime related to sexual offences. Therefore, the provisions of § 375-§ 377 have to be read together and not separately if the true intention of the legislation has to be brought to light. Justice Parke has held that in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further.[4]

Thus, while enacting this Section, did not intend to include consensual and private sex within the ambit of § 377, IPC. Justice Scalia has observed that consensual sodomy, like heterosexual intercourse, is rarely performed on stage.  If all the Court means by acting in private is on private premises, with the doors closed and windows covered, it is entirely unsurprising that evidence of enforcement would be hard to come by.  (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.)  Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a fundamental right, even though all other consensual sodomy was criminalized.[5]

Therefore a  statutory provision has to be interpreted in such way that the reasonableness is judged with reference objectives of legislation and not cosmetic moral considerations.[6]

 

LEGALIZING HOMOSEXUALITY BY STRIKING DOWN § 377 IPC TO SUCH EXTENT INFRINGES RIGHT TO HEALTH AS EMBODIED IN ARTICLE 21 OF THE CONSTITUTION.

A  grand step was taken by the Court by expanding the scope of Article 21 of the Constitution of India it argued that lifein Article 21 does not mean merely animal existence but living with human dignity.[7] Therefore, the act of homosexuality itself is animal like and does not reasonably qualify to be within the ambit of natural and legitimate acts. It has been scientifically proved on various occasions that it becomes a cause of severe health hazards, and it the duty of the State to protect individuals from such activities which might hazardous to their health and the health of the society.

The Federal Centres for Disease Control and Prevention (CDC) and other health agencies report a disturbing increase in high-risk sexual behaviours and substance abuse among some groups of MSM in recent years.[8] Media reports also confirm a trend in dangerous behaviours among MSM, such as:

i.            Bug chasing. Another disturbing phenomenon among some MSM involves HIV-negative MSM who actively seek HIV infection by engaging in high-risk sexual activities with infected male partners. A 2003 Rolling Stone article brought national attention to “bug-chasing,” which the article described as “an intricate underground world that has sprouted, driven almost completely by the Internet, in which men who want to be infected with HIV get together with those willing to infect them.”[9] Carlos, a “bug chaser” who claimed to have had several hundred sexual partners and said he regularly had sex with three or four HIV-positive men a week, told Rolling Stone, “I know what the risks are…But I think it turns the other guy on to know that I’m negative and that they’re bringing me into the brotherhood. That gets me off, too.” [10]

ii.            Physical Damage: Homosexual men who engage in anal sex are at a significantly high risk for numerous health problems. The high-risk nature of anal sex is simple: the rectum was not designed for sexual intercourse. According to amfAR, “compared to the vagina, rectal tissue is much more vulnerable to tearing during intercourse and the larger surface area of the rectum/colon provides more opportunity for viral penetration and infection.”[11]In her book, Epidemic, Dr. Meg Meeker, a pediatrician, writes: “The anus opens into the rectum…which is not as well suited for penile penetration as the female vagina is. Both the anus and the rectum have rich blood supplies, and their walls, thinner than the walls of the vagina, are easily damaged. When penetration occurs, it’s easier to tear the blood vessels, which in turn increase the risk of acquiring or receiving an infection…”[12]

iii.            Anal Cancer: Homosexual men are also at an increased risk for anal cancer. [13]According to the American Cancer Society, risk factors for anal cancer include: Human papilloma virus (HPV), which causes anal and/or genital warts; multiple sexual partners; and anal intercourse.[14] Due to concerns about anal cancer, some health professionals now recommend anal Pap Smears for MSM.[15]

iv.            STDs: Compared to heterosexual men, MSM are at an increased risk of contracting a number of dangerous STDs, including HIV/AIDS. According to the GLMA, these STDs include: “urethritis, proctitis, pharyngitis, prostatitis, hepatitis A and B, syphilis, gonorrhea, chlamydia, herpes, genital warts and HIV infection.”[16]

v.            HIV/AIDS: Despite efforts by gay activists to disassociate homosexuality from the spread of AIDS, homosexual behavior, particularly among males, is associated with an increased risk of HIV. Although HIV can be transmitted through both vaginal and anal intercourse, receptive anal sex without a condom is at least 10 times more risky for contracting HIV than vaginal sex without a condom, according to amfAR.[17]

the word ‘expression’ occurring in Article 19(1) (a) of the Constitution canNOT  be read disjunctively from the word ‘speech’ and HENCE CAN NOT  include expression of sexual orientation of a citizen

Article 19 (1) of the Constitution of India reads as follows:

(1) All citizens shall have the right:

(a) To freedom of speech and expression;

(b) To assemble peaceably and without arms;

(c) To form associations or unions;

(d) To move freely throughout the territory of India;

(e) To reside and settle in any part of the territory of India…………

If the intention of the legislation was to read the two words disjunctively, then the same would have been separated while the Constitution was being drafted. The Hon’ble Supreme Court has held that the intention of the legislature is primarily to be gathered from the language used which means that attention should be paid to what has been said.[18] Furthermore, the Hon’ble Supreme Court has also held that a construction which requires for its support addition or substitution of words or which result in rejection of words as meaningless has to be avoided completely.[19] It should be observed for better interpretation of this Article that the legislation has made a deliberate effort of using the word “And” in Article 19 (1) (a) and not “or” as it has been used in Article 19 (1) (c) and Article 19 (1) (g). Thereby, this means that “And” is a compulsive inclusion and its exclusion would change the meaning and destroy the essence of the Article.

The scope of Article 19 (1) (a) has rightfully been expressed by this Court that the right to express one’s conviction’s and opinions freely, by word of mouth, writing, printing, picture or in any other manner (addressed to the eyes or the ears). It includes the expression of one’s idea by any “visible representation”, such as by gestures or the like.[20] Therefore, that Sexual orientation cannot be legitimately interpreted to be within the purview of Article 19 (1) (a).

Relying on the above mentioned points, the words freedom of speech and expression have been written together and separating them for a wider interpretation would be absurd and unjust. In this regard, Jervis, C.J has rightfully held that ifthe precise words are plain and unambiguous, then the Court is bound to construe them in their ordinary sense, the failure of which will leadto absurdity or manifest injustice.[21] Thus, the intention of the legislation was to read the words together and therefore it would ultimately lead to manifest injustice if such a wide interpretation is taken.

The Constitution strikes a balance between individual liberty and social control. A Division Bench of the Hon’ble Delhi High  Court has held on the above mentioned balance by holding that Article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law so that they may not conflict with public welfare or general morality.[22]

sexual intercourse of the same sex is against such established and recognised norms of human behaviour that indulgence in it may justify curtailment of individual liberty by the State within parameters of a reasonable restriction on grounds of public decency or morality under Article 19(2).

India is a diverse nation having a rich and multi-cultural heritage accommodating a majority of the religions in the world.

Our Constitution guarantees in its Preamble that India is a secular state and thus, implying that the religious sentiments of all the cultures in this community are to be respected.[23]Secularism is a basic feature of the Constitution,[24] Rule of Law[25] and the Rule of Equity.[26] Therefore,a legislation cannot be made or amended which contravenes any of the said norms of any religious community existing in our country. Acts of homosexuality are condemned both in text and context by more than one religion being practiced in our country. The Srimad Bhaagvad Gita states that a Hindu marriage joins two individuals of opposite sex for life, so that they can pursue dharma (duty), artha (possessions), kama (physical desires), and moksa (ultimate spiritual release) together. It also joins two families. Furthermore, the Quran condemns homosexuality by stating that Of all the creatures in the world, will ye approach males, “And leave those whom Allah has created for you to be your mates? Nay, ye are a people transgressing“[27] and even prescribes a punishment for such acts.[28] Even the canon law prohibits such acts.

Therefore, reasonable restriction is imposed in order to prevent that religious sentiment from being hurt of any particular community. The Hon’ble  Delhi High Court has held that the words ‘reasonablerestriction’ corresponds to the societal norms of decency, e.g, respect of rights or reputation of others, protection of national security or of public order, or of public health or morals etc.[29]

In its judgement, the Hon’ble Punjab and Haryana High Court have referred to Lord Devlin to emphasize the need of morality in the society. The Hon’ble Court has said that Lord Devlin appears says that society has the right to enforce morality as such on the ground that a shared, morality is essential to society’s existence, it is not at all clear that for him the statement that immorality jeopardizes or weakens society is a statement of empirical fact. It seems sometimes to be an a priori assumption, and sometimes a necessary truth and a very odd one. The most important indication that this is so is that, apart from one vague reference to “history” showing that the loosening of moral bonds is often the first stage of disintegration, no evidence is produced to show that deviation from accepted sexual morality, even by adults in private, is something which, like treason, threatens the existence of society.[30]

The Supreme Court has held that if the Court finds on scrutiny, that the law has not overstepped the constitutional limitations, the court will have to uphold the law, whether it likes it or not.[31]Furthermore, the Hon’ble Supreme Court has even held that if a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to the other persons.[32]

Furthermore, the Hon’ble Supreme Court of the United States of America has held that the right to engage in homosexual acts is not deeply rooted in any country’s history and tradition.[33] American Courts have also held that countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority is belief that certain sexual behavior is immoral and unacceptable constitutes a rational basis for regulation.[34]In relevance to the instant matter, it has been held by that engaging in homosexual acts outside the scope of marriage is not protected by any constitutional mandate.[35]The Hon’ble Supreme Court of the United States of America has observed that State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in validation of laws based on moral choices.[36]



[1]Wade and Phillips, Constitution and Administrative Law, 87 (1977)

[2]Mohd. Shaheb Mahboob v. Dy. Custodian, AIR 1961 SC 1657

[3]Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 487

[4] Becke v Smith (1836) 2 M&W 195

[5]Lawrence v. Texas, 539 U.S. 558 (2003)

[6] R.K. Garg v. Union of India, (1981) 4 SCC 675

[7]Francis Coralie v. Administrator, Union Territory of Delhi, AIR 1981 SC 746

[8]CDC, “HIV/AIDS Among Men Who Have Sex With Men,” CDC HIV/AIDS Fact Sheet, May 2007

[9]Freeman, Geoffery, “Bug Chasers: The men who long to be HIV+,” Rolling  Stone magazine, February 6, 2003.

[10]Ibid

[11]CDC, “HIV/AIDS Among Men Who Have Sex With Men,” CDC HIV/AIDS Fact Sheet, May 2007

[12]Meeker, Meg, MD, “High-Risk Sex,” Epidemic: How Teen Sex is Killing Our Kids, Regnery Publishing, Washington, DC: 2002, pgs. 152.

[13]GLMA, “Lesbian, Gay, Bisexual and Transgender Health: Findings and Concerns,” Journal of the Gay and Lesbian Medical Association, Vol. 4, no. 3 (2000), pg.111.

[14]American Cancer Society, “What are the risks of anal cancer,” All About Anal Cancer, www.cancer.org.

[15]GLMA, “Lesbian, Gay, Bisexual and Transgender Health: Findings and Concerns,” Journal of the Gay and Lesbian Medical Association, Vol. 4, no. 3 (2000), pg.120.

[16] Ibid

[17]amfAR, “HIV Prevention for Men Who Have Sex With Men,” Issue Brief  #4, June 2006, pgs. 1-2.

[18] Gwalior Rayon Silk Mfg. Co. Ltd. v. Custodian of Vested Forests, AIR 1990 SC 1747

[19] Shyam Kishori Devi v. Patna Municipal Corporation, AIR 1966 SC 1678

[20]Romesh Thapar v. State of Madras, (1950) SCR 594

[21] Abley v. Gale, 20 L.J.C.P (N.S) 233 (1851); Arul Nadar v. Authorised officer, Land Reforms, (1998)7SCC 57

[22]A.K. Gopalan v. State of Madras, (1950) SCR 88 (253-54)

[23] See The Preamble, The Constitution of India, 1950

[24]Shri Adi Visheshwara of Kashi Vishwa Nath Temple, Varanasi v. State of U.P, (1997) 4 SCC 606

[25]High Court of Judicature at Bombay v. Shirish Kumar Rangrao Patel, (1997) 6 SCC 379

[26]Indira Sawhney v. Union of India, (2000) 1 SCC 168

[27] Qur’an (26:165-166)

[28] Qur’an (4:16) – “If two men among you are guilty of lewdness, punish them both.

[29]Director General, Directorate General of Doordarshan v. Anand Patwardhan, AIR 2006 SC 3346

[30] Kailash Alias Kala v State of Haryana, 2004 CriLJ 310

[31] Anwar v. State of J&K, AUR 1971 SC 337(388); Arunachal v. Khudiram, (1994) Supp (1) 615, para 75

[32]Chiranjit Lal v. Union of India, (1950) SCR 869; State of Bombay v. Balsara, (1951) SCR 682 (708-09)

[33]See Bowers v.  Hardwick, 478 U. S. 186(1986)

[34]Williams v.  Pryor, 240 F. 3d 944, 949 (CA11 2001)

[35] Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999)

[36]Supra Note 14

Examination of Section 66A of the Information Technology Act

Technology changes the dimension of the society. Obscenity in electronic form, morphing  of images, defamation, text bullying, stalking, spamming, unsolicited emails, criminal intimidation, extortion, public mischief, insult, threat to cause injury have penetrated in this modern society with the help of cyber technology. Under this back drop the legislative body incorporated section 66 A under the Information Technology Act. The Information Technology Act, 2000 was amended in 2008. The amended Act which received the assent of the President on February 5, 2009, contains section 66A.

Section 66 A of the Information Technology Act, 2000 runs as under:

“66A. Punishment for sending offensive messages through communication device, etc.-Any person who sends, by means of a computer resource or a communication device,—

(a)    any information that is grossly offensive or has menacing character; or

(b)    any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or

(c)     any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,

shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation.— For the purpose of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.”

 

Area of controversy:

Free speech is the life blood of a democracy. Now the free speech is becoming un-free due to vague section in Information Technology Act.  Section 66 (A) provides for a jail term of up to three years for anyone who uses a computer or any other communication device to send information that is grossly offensive, menacing’, causes annoyance or hatred. Section 66(A) fails to define the term grossly offensive and annoyance. Under the banner of the word grossly offensive and causes annoyance police can arrest any person because it gives the police unfetter power to arrest anyone in this modern technological age. It is very true that the mental ability of tolerance and annoyance differ person to person, place to place and time to time. Different persons with different mental structure have their different level of annoyance.An April Fool joke ca not also get exemption under Section 66A of the Information Technology Act.

Under this purview it can be said that Section 66 is vague and hence violative of Art 14 of the Constitution. Unfetter power of the police affects the very right of freedom of speech and expression under Article 19(1)(a) of the Constitution. Threat to public order, defamation, incitement to offence, contravening decency and morality, committing contempt of court, etc. are listed in Article 19(2) as grounds to limit freedom but not the matter of grossly offensive and annoyance, menacing character or causing inconvenience, danger, obstruction or insult. Right to life and personal liberty is a guaranteed right under Article 21 of the Constitution and by the virtue of the Section 66A the police gets the unfetter power to arrest any person to consider a tweet or blog ‘grossly offensive’ or ‘of menacing character’, or causing ‘inconvenience, annoyance, danger, obstruction or insult’, is also a great threat to Article 21.

 

Conclusion:

From the above noted observation it can be said that Section 66A of the Information Technology Act is in conflict with Article 14,19(1)(a) and 21 of the Constitution as because Section 66A  absolutely  provides the police with the power to arrest any person under the banner of the word ‘grossly offensive’ or ‘of menacing character’, or causing ‘inconvenience, annoyance, danger, obstruction or insult’ after considering  e-mails, SMSes, blog, vblog, tweets, image, sound(VoIP). It is the need of the hour to amend this draconian section of the Information Technology Act.

Crime & Punishment

CRIME on the OFFENCE JUSTICE on the DEFENCE

India, no doubt, is a great country. It has a great system of criminal jurisprudence in which an individual/group has a right to commit a crime, heinous included, to run away from the scene of crime and, if caught, the right to claim he is innocent. This exactly is what we call ”choriaurseenazori”.

There are a few instances in which people in the heat of moment have committed crime, even of murder, and then they have voluntarily surrendered before police or courts confessing their crime, even before the police had actually got a whiff of it. At the same time, they have their unchallenged inherent right to resile from their confessional statements in the heat of moment and to claim innocent denying their confession.

Our law also provides alibis and chances to prove themselves juvenile, under the influence of intoxication, depression, provocation or other mitigating circumstances to prove their innocence or seek punishment lesser stringent than the extent of their crime due under the law.

Even when a case of murder is proved against a person, he can be sentenced to capital punishment only, as the Supreme Court has decreed, if the case falls in the category of ”rarest of the rare” in the opinion of the concerned learned court.
On the one hand, we all – the executive, the legislature, the judiciary, the media and the people – are one in the need for dispensing quick justice to the victims of the heinous crime of rape and on the other, our courts are showing leniency and consideration to the accused. The latest is the case in which the Supreme Court (SC) on January 29, 2013 ruled that the man who had raped his minor daughter and killed her and his wife and who had been sentenced to death, need not be sent to the gallows ”as the crime did not fall under the rarest of rare cases”. The SC further said that ”his reformation is not foreclosed in this case.”

An SC double bench set aside the death sentence, awarded by trial court and upheld by the Punjab and Haryana High Court, saying that the convict was feeling frustrated because of the attitude of his wife and children.

The history of the conduct of the convict Mohinder Singh speaks otherwise and does not inspire confidence that ”his reformation is not foreclosed”. He committed the crime while on parole from jail where he was undergoing a 12-year sentence for raping his 12-year-old daughter. In January 2005, he came out on parole and killed his wife who was a witness to the rape, and the daughter he had raped.

A father raping his daughter and killing her and his wife, a witness to the crime, needless to say, is not a daily routine but a rarest of the rare heinous crimes in India. That the convict was ”feeling frustrated because of the attitude of his wife and children” does not mitigate the intensity of his crime. On the contrary, it only shows that the father did not appear to be ashamed and repentant for the sin he committed and instead wanted his wife and daughter to be a conspirator in his crime and save him by telling a lie in the court. His conduct during his parole itself belies the hope that ”his reformation is not foreclosed in this case”.

Juvenile hardcore criminal
No less astonishing is the report that the ”most brutal” accused in the gang-rape and killing of a paramedical student Nirbhaya in New Delhi last month has been declared a ”minor” by the Juvenile Justice Board on January 29 on the basis of the date of birth on his school certificate and ordered his trial under the Juvenile Justice (Care and Protection of Children) Act. The Board also rejected the plea of the Police for bone certification test of the accused to determine his age.

This suspicion got further strengthened by a Times of India story which on February 01 quoted the mother of the accused who claims to be juvenile saying: ”I have no idea regarding either the day or date of admission. I just went to the school and told the teacher that this is my child, he is five years of age, write down his name. They started teaching him after that.” And yet our Juvenile Justice Board has blind faith in the school certificate that shows the age of the accused.

The decision based on ”school certificate” is open to question because everyone knows that in India, for various reasons, parents of children have been getting birth certificates of their children showing an age less than the actual one. The ”bone certification” would have been more scientific and reliable.

It is ironic that a person who allegedly committed one of the most heinous crimes, which even a hardened criminal would have dreaded to perform, should be dispensed Care and Protection reserved for juveniles. We need to distinguish between juvenile delinquency and juvenile crime. Juveniles have been dispensed care and protection because their crime was not heinous but could be considered a delinquency like a child playing with a knife accidently killing another child or pushing a fellow child without realizing that his act could cost a life or a child playing with fire incidentally causing a great inferno resulting in huge loss of life and property. These may be crimes but seem to have been inadvertently committed with no set motive. But that is not the case of this juvenile accused in Nirbhaya gang-rape and murder. One has to go by the enormity of the heinous crime and not by the age of the culprit.

This gives another indication of the kind of justice and the criminal jurisprudence we have. This stands in the way of justice. It fails to punish the culprit because it itself raises many ifs and buts in the smooth way of handing out punishment to the person guilty of a crime. The loopholes in the justice system only help the accused and not the innocent and the aggrieved in his quest for justice.

Justice should not only be dispensed but also appear to have been dispensed. It is absence of this scenario that is prompting people to take law into their own hands and dispense justice themselves there and then.
The writer is a Delhi based political analyst and commentator.

Constitution and morality Parliamentary Contradictions Over FDI

By AmbaCharanVashishth

THE illustrious framers of our Constitution were men of character, morality, intelligence and farsightedness in their own right. Their singular consideration was the interest and future of the nation, and nothing else. Although more than 80 per cent ~ maybe even more ~ of the members of the Constituent Assembly belonged to the Congress, yet they never even for a while thought about the interests of their party. The same can be said of the leaders of other parties and non-political celebrities.

But things are totally different today. Whichever party may be ruling at the Centre or in the States, the uppermost priority and objective of the political rulers are centred on promoting and protecting the interests of the party and catering to the sectoral interests of their constituency of voters who provided them the edge over the opponents to win. The electoral benefit any programme and policy may fetch to the party in power acts as an accelerator. In fact, ‘opposition for opposition’s sake’ is the guiding star of every political party, both ruling and the Opposition. The latter opposes a government policy only because it is likely to swell the vote- bank of the ruling party which, in turn, is not willing to entertain any suggestion from the Opposition even if it is in the interests of the people or the nation. The party in power wants to prevent the Opposition from deriving any political and electoral mileage in the event of acceptance of a policy emanating from the other side.

Every political party has a right ~ constitutional and moral ~ to its stand on any issue and to vote accordingly. At the same time, the stand and voting on any issue cannot be contrary to each other. The two cannot be separated, from each other. Otherwise, it turns out to be hypocrisy in all its manifestations.

In its winter session in December 2012 the LokSabha presented a unique case-study. While participating in an Opposition motion calling for the withdrawal of the government’s decision to allow 51 per cent Foreign Direct Investment (FDI) in the retail trade, certain parties adopted a stand that was totally at variance with their stated position on the issue. This was reflected in the voting, abstention and the walkout. When it came to voting, some of them supported the government’s decision and others devised a strategy to indirectly bail the government out on an issue they otherwise opposed. Some staged the drama of a walkout in protest against the reply and explanation of the minister concerned.

They were obviously trying to fool the people with their strident public opposition to FDI; simultaneously they were helping the government in an indirect manner to achieve its objective. Their action was in stark contrast to what they had said in the House.

The conduct of these legislators may not be against the word of law and the Constitution, but it certainly destroys the spirit of both. One doesn’t know whether it pricked their collective conscience. Their attitude places the Constitution in direct conflict with the tenets of ethics and morality.

In the discussion in the LokSabha with an effective strength of 544 members, a total of 261 MPs representing various political parties were with the Opposition, appealing to the government to withdraw the decision to introduce FDI in the retail sector.
Some of these groups belonged to parties which were either part of the United Progressive Alliance (UPA) or were supporting it from the outside. But when the Opposition motion was put to vote, only 218 stood for it while 253 stood by the government. Some political groups (43 MPs), which had opposed the move tooth and nail in the House, tactically preferred to stage a walkout.

The political groups opposing the government were actually playing politics which has, over the past 65 years, come to be acknowledged as the deft art of fooling the people. On the one hand they were vociferously telling the people that they were against the move but, on the other, they staged a walkout to facilitate the Bill being passed to save the face of the government.

The Constitution does stipulate a voting pattern on a confidence or no-confidence motion; in the case of a Constitution Amendment Bill, there is a clause of two-third of the members present in the House and voting. Those who had framed the Constitution could not visualize a situation where politics would stoop so low that this provision of “those present in the House and voting” would be exploited to vote for a government or vote it out by taking recourse to a walkout or not voting in violation of their own stand spelt out in the House. This contradictory conduct makes a mockery of both the spirit of the Constitution and the sanctity of the words and views expressed in the House.

A walkout is a mark of protest and a virtual vote against the issue under debate and voting in the House. On moral grounds, it amounts to a vote against. Would it be constitutionally and morally right if a government adopts a strategy to create conditions provoking the Opposition to walk out in protest and, later, in the absence of the Opposition, getting the approval of the House with a near unanimity of those “present and voting” on certain controversial issues?

The Constitution may not have stipulated as much in so many words; yet it would be equally wrong to construe the absence as putting its seal of approval on the duality of the conduct in opposition to the words and opinion expressed on any issue in the House.

The writer is a Delhi-based political analyst and commentator
(Courtesy: The Statesman)

“TIME IS OF THE ESSENCE” CLAUSE IN COMMERCIAL CONTRACTS IN INDIA

Commercial Contracts in India more often than not contain a clause of “Time is the essence of the Contract”. This clause becomes imperative considering the fact that sometimes the transactions are of enormous value and any kind of delays on the part of one party can entail very large amounts of losses for the other. The consequences of delay are different depending on whether time is of the essence and when it is not.

Garner’s Dictionary of Modern Legal Usage defines the phrase “time is of essence” in the following words: “When a contract stipulation relating to the time of performance is ‘of the essence’ of a contract, a party’s failure to meet that stipulation automatically justifies the other party’s rescinding the contract—no matter how trivial the failure.” A time-of-essence provision is a powerful weapon, since it can give an otherwise minor delay the legal effect of a material breach of contract.

In India, the provision relating to “time as the essence of contract” is contained in Section 55 of the Indian Contract Act, 1872. Stating simply, the Section provides that if something is promised to be done at a specified time and the same is not performed, the contract becomes voidable at the option of the promise if it was the intention of the parties that time should be of the essence of the contract. Further, the section provides that if it was not the intention of parties to make time of the essence, the promisee is entitled to claim compensation for any loss caused by the default. Finally, the section goes on to say that if time is intended to be of the essence by the parties but performance is accepted on some other time, compensation cannot be claimed by the promise unless he gives such a notice to the promisor.

Intention of the parties

In Indian law the question whether or not time is of the essence of the contract would essentially be a question of the intention of the parties which are to be gathered from the terms of the contract. An express stipulation in this matter cannot be a conclusive determination of the intention of the parties. If the contract in its terms provides that time is the essence of the contract, but other terms of the agreement show that the parties did not intend time to be of the essence, the court has held that time is not of the essence. The intention of the parties can be ascertained from:
(a) The express words used in the contract;
(b) The nature of the contract itself;
(c) The nature of the property which forms the subject matter of the contract;
(d) The surrounding circumstances.
It has been held in the case of China Cotton Exporters v. BeharilalRamcharan Cotton Mills Ltd .that in commercial contracts time is ordinarily of the essence of the contract. The rule is that except in commercial contracts, the ordinary presumption is that time is not of the essence of the contract. This presumption can be rebutted by showing the intention of the parties. Time is presumed not to be of essence in contracts relating to immovable property , but of essence in contracts of renewal of leases . At common law stipulations as to time in a contract giving an option for renewal of a lease of land were considered to be of the essence of the contract even if they were not expressed to be so and were construed as conditions precedent. The onus to plead and prove that time is of essence of the contract is on the person alleging it, thus giving opportunity to the other party to adduce rebuttal evidence that time was not of essence. Where both the parties are engaged in business and articles are purchased by one party from the other party for business purposes the transaction falls within the term ‘mercantile transaction. ’

Stipulations in the Contract and their consequence

In order to ascertain whether time was intended to be of the essence or not, the terms and conditions of the agreement should be carefully read . If the parties intend to make time of essence, they must express this intention in clear and unambiguous terms. If no time is specified, the question of time being of the essence does not arise at all. However, merely specifying the time at which the contract has to be performed does not make time the essence of the contract. If the contract provides that in case of delay by any party the contact would be held to be cancelled, it raises a strong evidence towards the parties intending the time to be of the essence.

An express stipulation, however, is not a conclusive proof of time being of the essence of the contract. Even where the parties have expressly provided that time is of the essence of the contract, such a stipulation will have to be read along with the other provisions of the contract. It is pertinent to note the case of Hind Construction Contractors v. State of Maharashtra to further elucidate this point. The Appellant entered into a contract with the respondent on July 2, 1955 for the execution of a work with the condition that contract should be completed in 12 months from the commencement of the work. The Appellant could not complete the work within the stipulated time and the Respondent rescinded the said contract with effect from August 16, 1956. The Appellant contended that time was not of the essence and further on account of several difficulties, such as excessive rains, lack of proper road and means of approach to the site, the completion was delayed. The Supreme Court, in deciding that time was not of the essence in relied on two clauses in the contract. First, there was a power to grant extension of time on reasonable grounds on an application by the contractor/appellant. Second, there was a provision to recover penalty/compensation from the appellant at specified rates during the time the work remains unfinished. These two provisions, as per the court, exclude the inference that time was intended to be of the essence of the contract.

Time, when it is not of the essence, can be subsequently made so, by notice by the party not in default. The notice must, however, contain clear stipulation that it wants to make time of the essence, with express provision or necessary implication. Any such notice ought to fix a reasonably long time requiring the other side to perform his part of the contract. In the notice for making time of the essence of the contract, the party can be intimated that in default of compliance with the requisition, the contract will be treated as cancelled. The party who serves such a notice must himself be bound by it.

Extension of time

Since one party to the contract cannot unilaterally alter or vary the terms thereof he also cannot extend the time thereof without the other party’s intimating its consent or agreement thereto by any of the methods stated in section 4 of the Contract Act. Therefore, time for performance can be extended only by an agreement arrived at between the promisor and promisee. A mere extension of time and nothing more is only a waiver to the extent of substituting the extended time for the original time and not an utter destruction of the essential character of time. Where one party intimated to the other about the extension of time, but the other party did not communicate any acceptance, time for performance was not extended.

When time is not of the essence

Time is not of the essence where the contract provides for damages for delayed completion, or for extension of time in certain circumstances, despite express provision making time of the essence, or provision of a default clause. These provisions are inconsistent with the intention to make time of essence. Time was not of essence where the time for performance was extended twice and the object of a purchase was not a commercial undertaking.

Time is not of the essence when the contract did not specify a date for the completion, but merely provided for completion to take place as soon as reasonably expected. A party’s general right to have the contract performed within reasonable time is unaffected by the fact of time not being of the essence. Time was held to be not of essence where in a contract for import and supply of sugar, the port of discharge had not been named and the surveyor not been appointed without whose certificate the question of payment did not arise.

Acceptance after the specified time and Waiver

When a party waives his right by taking benefit under a contract after the fixed time, he cannot rely on time being of the essence of the contract in order to avoid a contract. A claim for compensation under this section would be barred, if the promisee accepts performance after stipulated time unless he had given notice to the promisor of his intention to do so. In the case of State of Kerala v. M.A Mathai , it was held that if there are any delays in the performance of reciprocal obligations by an employer, the contractor gets the right to avoid the contract but if he does not avoid the contract and accepts the belated performance, he cannot claim compensation for any loss sustained to him due to delay in performance, unless he gives a notice of the same to the delaying party.
CONCLUSION
From the above analysis of the concept of time as the essence of the contract, in light of the provisions of the Indian Contract Act, it may be concluded that the question as to whether time is of the essence of the contract or not, can only be answered by looking at the intention of the parties. Clauses such as extension of time and imposition of liquidated damages or penalty etc. may go against the intention of the parties to make time of the essence since the parties find an adequate remedy in the way of penalty or LD. It may also be concluded that in case of a commercial or mercantile contract, time is presumed to be of the essence.

Media & Tort of Defamation

Freedom of Media

One of the paradoxes is that Freedom of the Media to which our Founding Fathers were greatly attached finds no mention in Part III of our Constitution which guarantees certain fundamental rights. There is no specific guarantee of Freedom of the Media as in the Constitutions of other countries.

In the course of the Constituent Assembly debates, Dr. B.R. Ambedkar expressed the same view, and thought that “no special mention is necessary of the Freedom of the Media at all”. This view has been vindicated by the Supreme Court of India. In a series of decisions from 1950 onwards the Supreme Court has ruled that Freedom of the Media is implicit in the guarantee of freedom of speech and expression in Article 19(1)(a) of the Constitution. Thus Freedom of the Media by judicial interpretation has been accorded the constitutional status of a fundamental right. However there is a strong body of opinion which favours specific mention of Freedom of the Media as a fundamental right.

The fundamental right guaranteed is not merely the individual right of the proprietor of the newspaper, or the editor or the journalist. It includes within its capacious content the collective right of the community, the right of citizens to read and to be informed, to impart and receive information. In substance, it is right of the people to know.

When we are speaking about the Freedom of the Media it must be remembered that freedom of expression and Freedom of the Media are not absolute and unlimited. Under our constitutional scheme Freedom of the Media also can be restricted provided three distinct and independent prerequisites are satisfied. The restriction imposed must have the authority of law to support it. The law must fall squarely within one or more heads of restrictions specified in Article 19(2), namely,

a)      Security of the State

b)      Sovereignty and integrity of India

c)      Friendly relations with foreign States

d)       Public order

e)      Decency or morality

f)       Contempt of court

g)      Defamation

h)      Incitement to an offence.

 

The restriction must be reasonable.

One of the permissible heads of restrictions is defamation. In our country there can be criminal prosecution for defamation with imprisonment up to two years and fine. There is also the civil remedy for damages for defamation. The possibility of criminal prosecution and imposition of heavy damages in civil suits against the press can have a chilling effect which can at times be freezing. Thus the potentiality of clash between Freedom of the Media and laws or measures protecting reputation which is the purpose of the law of defamation is inevitable. This is a real problem.

The constitutional guarantee of free speech and Freedom of the Press does not confer a fundamental right to defame persons and harm their reputations by false and baseless allegations and by innuendoes and insinuations. The Press enjoys no talismanic immunity from legal proceedings when it has indulged in malicious falsehoods. A person’s right to good name and honor is also a basic human right.

Defamation

Salmond define the wrong of defamation as publication of a defamatory statement about a person without any lawful justification. Blackburn and George define tort of defamation as publication of a statement which brings down reputation of a person before the right thinking members of the society generally. The word “to bring down reputation of a person before the right thinking members of the society generally” is taken from the test suggested by Lord Atkin.

The difference between libel and slander

As mentioned above, libel is tends to be in permanent form whereas slander is spoken words. Legislation has made clear that TV broadcasts or theatre plays are to be treated as libel. For other methods of communication it is necessary to consult the common law which applies a test of permanence or transience of the statement.

In Monson vTussauds, the court had to decide whether a wax statue was capable of being libel. The court hold that it was, the court said that anything which has a permanent of lasting form can be libel including an effigy or chalk marks on a wall. Lopes, J. said that libel need not be always written and can be of any other permanent form.

Another important distinction is that libel is actionable per se, which means without any proof of damage. Whereas slander, like most areas of law, requires proof of some injury before a lawsuit can be brought.

 

What kind of injury can be shown?

Mere damage to reputation is insufficient, so is the loss of friends (though losing out on the hospitality of friends may be sufficient). Something like loss of a job or reduced business profits would be sufficient.

As an aside, the requirement of damage has often been criticized. It is not clear why libel should be more easily actionable. It is true that words in permanent form, such as book, have more potential to reach large numbers of people than simply spoken words, but this may not necessarily be the case where someone is making a speech to large groups of people.

There are, however, some types of slander actionable per se:

• Imputation of criminal conduct – Where a Defendant accuses the Claimant of criminal conduct which is punishable by imprisonment; there is no need for proof of damage. However, words which express suspicion will not be actionable per se.

• Imputation of a contagious disease – This rule is largely outdated but would have had significance during the periods where serious diseases were rampant. Clearly an imputation that someone has a disease can lead to job loss or social exclusion. This exception would be applicable today for something like HIV/AIDS.

• Imputation of unchastity – This applies to the imputation of adultery or unchastity to a woman or girl or even homosexual is actionable per se. The imputation of unchastity was introduced throughout England by Slander of Women Act 1891.  There is no version for men.

• Imputation in unfitness to run a business – It used to be the case that the exception only applied to comments directed at specific professional tasks, thus accusing the boss of an affair with the caretaker would not be under this exception. It would have been if they were accused of an affair with an employee as that affects how they do their job. Now, however, the exception is much broader and applies to the whole job generally.

Requirements to Take Defamation Action

1.      The Statement must be Defamatory

The first requirement for a defamation action is that the statement is defamatory. A defamatory comment is one that injures a person’s reputation. The basic test is from Partimerv. Coupland“[Was the statement] calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule.”

It does not matter if the statement is not believed in fact by the people they are published to, but it does matter if no reasonable person would believe them, in which case they are not actionable. The statement must be assessed in its context and regard must be had to the characteristics of the Claimant. In Monson v. Tussuads, a wax statue of the Claimant had been placed in the same room as some murders next to the Chamber of Horrors. The Claimant had been tried for murder but a verdict of ‘not proven’ was entered and he was successful in his claim.

Defamation must go beyond mere insults and strike at the claimant’s reputation. Insults and jokes may hurt people and even be the cause of a civil action in employment law i.e. between employees, but discourtesy and insults are not on the same level as defamation. Defamation is one of the only areas of civil law to retain a jury, and it would be for the jury to decide whether the words were defamatory.

2.      The Statement Must Refer to the Claimant

The Claimant doesn’t have to be identified by name but as long as a reasonable inference can be made this criterion is satisfied.

However, it is important to remember that the question is not who the publisher intended to hit, but who they actually hit. Thus in Hulton v Jones, Artemus Jones was a barrister who brought an action against the defendants in respect of a newspaper article which allegedly referred to him. The article referred to a man called Artemus Jones who worked as a warden and alleged that he had behaved immorally during a motor festival. The Claimant had contributed pieces to the newspaper before. The Defendants argued that they had never intended the ‘real’ Artemus Jones but instead had created a fictional character and given it a fancy name. The Defendants lost at trial, in the Court of Appeal and in the House of Lords. This case has been called ‘the most famous case in the law of libel’ and has been heavily criticized. Arguably it is quite unfair to the newspaper. At the same time, however, it is not open to anyone with the same name to sue. Rather the jury must reasonably believe that the person in the statement is the Claimant. It will be hard to convince them when the Claimant has no connection at all with any of the facts.

However, in Morgan v.Odhams Press, the court said that ordinary members of the public do not read a newspaper article surgically, as a lawyer would, but simply skim over it. Thus if a person would think the article was referring to the Claimant after a brief skim then that will be sufficient, even if upon a close reading it is clear that it did not refer to the Claimant. However, what often happen in cases where the evidence against the Defendant isn’t strong is that the jury will find the Defendant liable but only give nominal damages.

In cases where there the article accidentally refers to an unintended person, the publisher can make an offer of amends. This is situations where the Defendant neither knew nor had reason to suspect that the statement referred to the claimant or was likely to be understood as referring to the claimant. The offer of amends requires the Defendant to publish an apology and offer to pay compensation.

3.      The Statement must be published

In defamation, ‘publish’ does not have its ordinary definition meaning the printing of words in a book or leaflet. Publishing, here, means communicating the defamatory statement to a third party, whether that is in a conversation or the people at home who are watching a television show in which a defamatory comment is made.

A statement can be published in many ways including by omission, such as where you have a duty to clear graffiti from the walls. The one exception is that communication to the Defendant’s spouse is not publication but communication to the Claimant’s spouse may be.

In Theaker v. Richardson, a husband opened a letter which defamed his wife. It was held that the defamation had been published to the husband as it natural and probable that the husband would open it.

A particular problem for the courts is not the first communication by the Defendant himself but any subsequent communication. Every repetition of a defamatory statement gives rise to a new cause of action against the Defendant provided it was foreseeable the document would be passed on.

In Slipper v BBC, the Claimant was a retired police officer was the subject of a film about trying to capture some men who had committed the Great Train Robbery. The Claimant alleged that the film showed him as a complete idiot. The film had been shown to some journalists before its release to the public and those journalists had published reviews contained the defamatory sting of the film i.e. that he was an incompetent police officer. The Claimant sued not only for the release to the public but the repetitions in the journalists’ reviews. The defendants argued that the repetitions are only actionable where the defendant has authorized them. The court rejected this argument and said that the Defendant can be liable for any re-publication of the defamatory material as long as it was reasonably foreseeable.

The rule of re-publications is stricter in respect of publication on the internet. Every time an internet user accesses an article on a website there is a fresh publication. In Loutchanksyv. Times Newspapers, the defendant argued that the court should adopt a single publication rule as in some US states where an article put online is published once regarding of many times it is accessed. The court rejected this though accepted that the rule may be disproportionate and was somewhat at odds with the 12 limitation period for defamation.

Times Global Broadcasting Co. Ltd. and anr.v. ParshuramBabaramSawant2011(113)BomLR3801

 

The progress of the case, Times Global Broadcasting Co. Ltd. and anr.v.ParshuramBabaramSawantwas watched closely by all news media, politicians, celebrities and other targets of alleged defamation. The verdict of this case is expected to change the face of media reporting forever and also verdicts in pending defamation cases. The verdict of this case was applauded as well as criticized by different sections of judiciary and media. Some argued that this will make media and press more responsible in their reporting while other said that this will discourage media reporting as verdict was too harsh on the defendant. The verdict of this case is also expected to encourage more number of people to file defamation case for damages. Also, some critics of this case expressed their concern because they felt that the verdict was partial because the plaintiff belongs to the legal fraternity and wondered if same damage would have been awarded if the plaintiff would have belonged to some other section of the society.

Facts of the case:

  • The plaintiff has stated that, he is the former judge of Supreme Court, former chairman of the Press Council of India, the former president of the World Association of Press Councils.
  • The defendant no. 1 is a duly incorporated company in the business of news reporting and broadcasting. It belongs to well known “Times Group”. It runs a news channel by the name “Times Now”.
  • The defendant no. 2 is the employee of defendant no. 1 and is the Editor in chief of the said News Channel and as such responsible for all its publication.
  • On 10.9.2008, while the News relating to Provident Fund scam was being telecast by the said channel, a photograph of the plaintiff was flashed as that of Justice P.K. Samantha (an accused in the said scam).
  • The said flashing of photograph created false impression amongst all the viewers in India and abroad that plaintiff was involved in PF Scam which is per se highly defamatory.
  • The said channel stopped publishing the photograph of the plaintiff when the mistake was brought to their notice.

Proceedings before the trial court:

  • The plaintiff filed a suit against the defendant stating that the defendant took belated action which cannot undo the wrong committed.

Questions before the trial court

  • Was the telecast defamatory per se of the plaintiff?
  • Whether the plaintiff is entitled for the damages?

Arguments of the respondent:

  • The defendants argued that the photograph of the plaintiff was only flashed only once for a short duration. It was without malice and without any intention.
  • The defendants have corrected the mistake by withdrawing it from all subsequent news on the channel. Therefore, the act of the defendants was quick and therefore denied carrying any defamation.
  • The defendants have submitted that they have not received any queries from the public.
  • The claim with regard to compensation is baseless and therefore is liable to be dismissed.

Decision of the trial court

  • The court gave decision in the favour of the plaintiff.
  • The court held that:
  • In the light of broadcasting of photo of the plaintiff, according to him, the act of the plaintiff is nothing but a tort for which the plaintiff defamed in the society.
  • The plaintiff is entitled to damage for Rs.100 Crores.

Question before the high court

  • Whether the trial court is correct in its finding?
  • Whether the damages awarded to the plaintiff viable or not?

Decision of the high court

  • The high court gave decision in the favour of the plaintiff.
  • The court asked the defendant to deposit the damage amount to the bank as directed by the court.