Weekly Legal Updates

We bring you the updates for last week. Hope it updates you with all the news from legal world.

8^th December 2014:

The division bench of Supreme Court has struck down the legality of provisions in certain circulars which banned hookah smoking and sale of cigarettes in designated smoking areas. With this three High Court (Bombay, Gujarat and Madras) decisions is overturned. The illegality of circulars was found on the basis of it being violative of COTPA Act, 2003 and Rules.

The Supreme Court agreed to hear a plea challenging the recent ordinance on Coal Block Allocations which is to be heard on 6^th December. The Court had earlier declined a batch of petition by private companies seeking that it re-look its September 24 order cancelling 214 coal blocks allocated from 1993 to 2011.

9^th December 2014:

A Delhi Court has held fourmen guilty for murdering L.N. Mishra, the then Railway Minster in a bomb blast on January 2, 1975. This trial is one of the longest drawn trials in India. Over 200 witnesses were examined in the case. Though the charge-sheet was filed in 1977 in a CBI court in Patna, the conviction has come only after about 40 years of the murder. Earlier in 2012, the accused approached the Supreme Court for quashing the trial against them as the case has not been concluded even after 37 years, which was not accepted by the apex court and was returned to the Delhi Court. The quantum of sentence would be pronounced on 15th December.

10^th December 2014:

The Central Government announced that section 309, attempt to commit suicide, will be deleted from Indian Penal Code (IPC) which will decriminalize the act of commitment of suicide. The decision is based on the request by 18 states and 44 Union territories to implement the Recommendations made in this regard by the Law Commission of India in its 210^th Report. The report made reference to P. Rathinam v. Union of India, where the Supreme Court of India held that Section 309 of IPC is violative of Article 21 of the Constitution of India. The same was overruled in Gian Kaur v. State of Punjab, however The Mental Health Bill of 2013 did attempt to decriminalize the same by putting presumption of mental illness on the persons attempting to commit suicide.

The Kerala High Court has concluded that the DLF violated the Coastal Regulation Zone Notification (CRZ Notification) and therefore ordered the demolition of the construction under DLF project in Kochi. The Court held that:

“Authorities are constituted under various enactments to see that the environment is protected and to see that the present topography which keeps the ecological balance is not disturbed. The purpose of these laws is to preserve nature for posterity. If the violation of these laws is allowed to become the order of the day, the existence of life would be at peril. Right to life guaranteed by our Constitution takes in innumerable rights, including the right to enjoy nature in the present form. Indiscriminate invasion of nature to the detriment of others is an invasion of right to life. Nature which is the property of the nation cannot be allowed to be scrambled by a minority violating all laws.”

11^th December 2014:

The Delhi High Court injuncted Xiaomi, a Chinese phone manufacturer, from selling, advertising, manufacturing or importing devices that infringe the Standard Essential Patents (SEPs) in question. The same SEPs are also a subject matter of a pending litigation between Ericsson and Micromax, Gionee, Intex.  In an ex-parte order passed against Xiaomi, the court also directed Customs Department to stop import of such products as per the IPR Rules, 2007. It is worth noting that Xiaomi managed to sell out its 50,000 handset in just 6 seconds on 8^th December.

12^th December:

Hearing an appeal filed by the Department of Ex-Servicemen Welfare (DESW) against a judgment of the Armed Forces Tribunal (AFT), the Supreme Court had to decide the question of benefits of an extra amount in pensions on account of disability due to service conditions of the ex-servicemen of the Army. The Bench headed by HL Dattu, CJI, said:

“They are in the line of fire. They sacrifice their life for you and for us. This is the least you could do for them. The government can have at least this much of budget for its soldiers who are dying for the people of this country everyday. What is the point of having these memorials and placards saluting our defence personnel if you litigate against the disabled soldiers till the Supreme Court. You should pay them,”

The Government agreed to comply with the order. The Supreme Court dismissed the matter, as a result disposing 880 appeals on the issue. It has also been reported that around 15,000 retired soldiers will be benefited due to the order.

The Social Justice Bench constituted to hear cases pertaining to “Social Justice” matters began with the division bench of Justice Madan B Lokur and Justice UU Lalit. The bench will take up fresh matters alongside the pending matters and will sit every Friday at 2PM at the Supreme Court. The bench was constituted to achieve the Constitutional goal of securing social justice for the citizens of the country.

The Supreme Court has dismissed Bayer’s Special Leave Petition (SLP) against the decision of the Bombay High Court. This dismissal will continue the effectiveness of grant of compulsory license to Natco for Bayer’s anticancer drug Nexavar. This has continued the Indian Courts’ stand to ensure the access to medicine across the country.

We hope that this summarizes the last week's News. Your comments and suggestions are welcomed.

Until next post of weekly News updates.

Manish Kumar, (3rd Year student of IIT Kharagpur Law School)

For 'OFF Court.'

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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They have all the Answers!!

Author: Antriksh Mishra, 3rd Year student of RGSOIPL, IIT-Kharagpur.

Our politicians seem to have all the answers, especially when it comes to crimes like rape. What is the need of Psychologists, Criminologists and Legal experts when we have great minds like Mulayam Singh Yadav, Abu Azmi, Mohan Bhagwat, Abhijeet Mukherjee to replace them.

I will not state what these leaders have said as they have already received enough coverage in the social, print and electronic media.

Recently another suggestion came from the Gandhis of the BJP. Varun and Menaka suggested that if a juvenile commits rape he should be punished as severely as an adult under the IPC. To quote Varun“If he is old enough to rape he is old enough to be punished for it.”

But Varun that is not true, in fact a child’s involvement in any kind of crime proves that he is misguided and troubled.

And why just amend the law relating to the crime of rape? How is murder any different? Just because rape has been a hot, sensational and most talked about topic ever since the Delhi Rape case made headlines and the politicians hope to garner more political mileage and make more headlines by speaking out against it. Not that today’s political class would ever be involved in political appeasement.

To respond to Mr.Varun Gandhi’s statement, of course a juvenile is old enough to have sex, aren’t we all by the age of 15? That doesn’t mean we are old enough to understand the rights and wrongs of the society.

The age of puberty and the legal age of adulthood are two completely different things! These juveniles have no counsel or guidance to make them understand the rights and wrongs of the society. They are children struggling to find a place for themselves among their elder counterparts. So whose responsibility is it to provide them with proper counselling and guidance? Oh Yes!! There is a ministry set up for that purpose it’s called “The Ministry of Women and Child Development” and you’ll never guess who the Hon’ble Minister associated with this ministry is… Yes it is “Menaka Sanjay Gandhi.”

Their motto is “Holistic Development of Women and Children”and to achieve this they have adopted “The National policy for Children, 2013” which includes providing such guidance and help to children.

But all that was before the Minister had this epiphany.Now the meaning of “Development” has changed to “Developing children into Criminals.”Wow that is some idea! The political class has done it again, congratulations to yet another leader to come out with another brilliant idea. We the people of India can really get used to this.

What one fails to understand is why some activist and lawyers keep insisting on opposing such a game changing idea?

Ms Ved Kumari an expert on juvenile Justice Law and ex chairperson of Delhi Judicial Academy insists,

“Juvenile's involvement in the acts of 'adult' crime such as murder and rape does not imply maturity. On the contrary, it is direct evidence of vulnerability of juveniles to reckless behaviour. Once the juveniles are dealt under the criminal justice system, the children will turn much worse psychologically and are likely to commit crime again.”

Athiya Bose, an activist for the welfare of juveniles says“Studies from the western nations have already suggested that such initiatives are a failure and it becomes difficult for children to come back from the trauma that they suffer under the adult justice system.”

Nah!! What do they know? What makes them the experts? Other than having worked in the field of law and juvenile justice for the last decade.

Our politicians know better! They always have all the answers.

 Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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PILs IN DISTRICT COURTS !!

In a very interesting development, the Chief Justice of the Andhra Pradesh High Court has raised a very interesting point about filing PIL in District Court!
What is at the heart of Constitutional Law is that a PIL can only be filed in the High Court or Supreme Court and only these courts have jurisdiction to entertain the same.

Any public spirited person does not have any other forum for redressal, as he has no locus standi for the matter. Well, soon this concept may find itself way back only in the annals of history. A new kind of Jurisprudence is now emerging where PIL in district courts can actually be envisaged. I freely admit, I myself was a part of the “ignorant society” that nodded and believed that only Constitutional Courts have the Jurisdiction to entertain a PIL. But kudos the innovativeness of the Indian Judiciary for envisaging a concept which may possibly help many public spirited persons in the future.

First, let us highlight what the Hon’ble Chief Justice Kalyan Sengupta said while delivering the C. Padmanabha Reddy Memorial Lecture organised by the Indian Association of Lawyers (IAL) in Hyderabad observed: (the report can be found here )

“A PIL could be filed in district courts or other subordinate courts also but not necessarily in the Supreme Court or High Courts. Judicial activism should be welcomed wherever the executive and legislative branches fall short of their goals and when a PIL comes against them, it should not be treated as an adversarial litigation but as a reminder of their Constitutional duties”

The idea itself isn’t bad. The vision of justice to the common man would be complete. The search and reach for justice has always eluded the common man, having to spend a lot of time and money to travel to long places, file for PIL in the HC or SC and represent their case. It’s not uncommon to make more than one appearance to get the desired relief. If PILs in District Court could make headway into the Judicial System, it would eliminate the need for the long wait of justice for people even in the remotest corner of India.

But is such an idea really feasible? District Courts always have the problem of pendency of cases with over 3 crore cases pending in courts. It would mean that district courts would also have to deal with the additional burden of PILs from persons who have no locus standi. This is specially a big problem because as it is the effective rate of disposal of cases is slow and time consuming. Unless additional resources are pumped in to expedite the process, it would be very difficult for the courts to carry this additional burden.

The competiveness of the District Court in handling PIL petitions is still uncertain. While on one hand, it may be especially good as District Court looks into matters of fact, hence it may examine evidence on a fact and decide on a petition, but there would not be an expeditious remedy. On the flipside, with regard to examining matters on PIL where effective, quick, correct and adequate remedy is the need of the hour, District Courts may, at some point, lack competence.

The Jurisdiction of the Court is also another aspect under consideration. The jurisdiction of the District Court is limited to the district only. This helps litigants save time and money and the Court may understand the problems of the district better than any of the Higher Courts. Yet its Jurisdiction being limited, it is very difficult for the court to give a judgment within the rigidity of jurisdiction it is bound in.

Another aspect is that, the courts are bound by procedural laws, making it very difficult to get quick remedies. So, it is very uncertain whether a District Court can be given wide amplitude of powers to bypass procedural laws which is required when a PIL petition is being heard.

In my opinion, considering many problems, and not to mention procedural aspects the District Courts may face, unless radical changes are proposed, it would be very difficult to actually put the vision of Hon’ble Chief Justice into practice. However all is not lost for the common man as he grapples with the administration, the government and the law in his quest to seek justice. The Code of Civil Procedure and Code of Criminal Procedure do provide sections for public to seek justice.

1. An important section provided by the CPC is to invoke section 91 of CPC which empowers any two public persons to raise any matter of public interest with the permission of the court in case of any public nuisance. The relief granted by the Court includes a suit of declaration and injunction or for such other relief as may be appropriate in the circumstances of the case.

2. Order I Rule 8 permits the filing of Representative Suit. Where any interested person may sue on behalf of all persons interested in the suit and a decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be. This section can be used as a powerful tool to file a suit in the District Court, as the language of Order I Rule 8 is so wide so as to permit filing of a civil suit and asking for civil damages as a result of redressing any public injury, enforcing public duty and claiming public rights.

3. Though PIL generally creates civil liability only, even criminal courts can entertain a complaint from a member of the public. Section 190 of CrPC gives wide powers to a Magistrate based on information received by him to take cognizance of any crime which may have been committed and to direct the Police to investigate the same. This is particularly helpful when the public injury committed by person or persons alike may attract criminal liability. The investigations may proceed say, under sections 268 of IPC for public nuisance, section 133 of CrPC empowering magistrate to take action against public nuisance.

PILs have revolutionised our justice system. Indian Judiciary has always upheld the cause of justice to common man and has addressed the same. In this regard, PIL in District Courts would give the much needed impetus in the process of restoring faith of the common man in the judiciary. But, the process is long drawn and a tough one. Its implementation would be difficult. Let us hope the vision, the path and the cause that the Hon’ble Chief Justice envisaged is taken up by others and the issues are addressed.

Author: Suraj Badrayan

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