COUNCIL FOR THE INDIA SCHOOL CERTIFICATE EXAMINATIONS DOES NOT COME UNDER THE PURVIEW OF THE RTI ACT, 2005
Calcutta High Court on while considering the writ petition filled, by the father of minor whose application under Right to Information Act, 2005 seeking issuance of original answer scripts was rejected by the council on the ground that it is not a public authority, held that the Council for India School Certificate Examinations does not comes under the definition of public authority under section 2(h) of the RTI Act. Court said, “The council is not a public authority or body or institution of self- government established or constituted under the Constitution, under the law enacted by the Parliament or by the State Legislature or body owned, controlled or substantially financed, directly or indirectly by the fund provided by the appropriate government. Therefore, it does not come within the purview of a public authority under Section 2(h) of the said Act.”
The council for petitioner Ekramul Bari contented that, the Council has sufficient representation of the Government of India, State Governments and Union Territory and discharges public function by way of “serving the nation’s children, through high quality educational endeavours, empowering them to contribute towards a humane, just and pluralistic society. However the arguments were rebutted by the council for respondent by citing various regulations of ICSE examination and evaluation of answer scripts concerning the results.
The court opinioned that the evaluated answer sheets would fall under Section 2(f) of the RTI Act, 2005 as it becomes the documents or records containing the opinion of the examiner but controversy in present case pertains to CISCE being a public authority or not to which Court states “the council origin being established by the University of Cambridge legally with the assistance of the interested Board for Indians by the Societies Registration Act No. XXI of 1860 does not fall within the definition clause of 2(h)(d)(ii) of the RTI Act and cannot be said to be a public body in possession of a document or record and as it is not at par with the Central Board of Secondary Education and is not a state instrumentality within the meaning of Article 12 of the Constitution.”
CAUVERY WATER DISPUTE: NEITHER ANY “BANDH” NOR ANY AGITATION CAN TAKE PLACE WHEN THE COURT HAS PASSED AN ORDER
Hon’ble Supreme Court in the immediate case warned that neither “bandh” nor any agitation can take place when the court has passed an order. It is to be complied with and, in any case, if there is difficulty, the concerned parties can approach the court. The people cannot become law unto themselves and, therefore, it is obligatory on the part of the authorities of both the States, namely, the State of Karnataka and the State of Tamil Nadu to prevent such actions. The Apex Court also took Karnataka and Tamil Nadu governments to task for failing to check violence following its order on the Cauvery dispute, asserting that its verdict “has to be complied with” and violent agitation would serve no purpose as those aggrieved were free to take legal recourse. When the court questioned his locus standi, Shivakumar said he was a social activist and a resident of Kanyakumari in Tamil Nadu and added that he was aggrieved by the violence in both states in which public, private properties were being damaged by local groups.
The bench observed that as per media reports, the situation was returning to normal and asked the petitioner to specify what the present state of affair was. Counsel for petitioner then told the bench that due to the ‘rail roko’ agitation, buses were also not plying in Karnataka apprehending violence and a similar ‘bandh’ call has been given in Tamil Nadu. Approximately Rs. 25,000 crore worth of properties have been damaged in violence in the two states. The court had taken up the matter urgently due to the spontaneous agitations in the various parts of Karnataka in the Cauvery basis which has paralysed the normal life besides destroying the public and private properties.
VIEWING PIRATED FILMS ONLINE NOT AN OFFENCE
In the immediate case Hon’ble High Court of Maharashtra ruled that “mere viewing of blocked websites and its content (the pirated movie) is not an offence”. A warning message like- “This URL has been blocked under the instructions of the Competent Government Authority or in compliance with the orders of a Court of competent jurisdiction. Viewing, downloading, exhibiting or duplicating an illicit copy of the contents under this URL is punishable as an offence under the laws of India, including but not limited to under Sections 63, 63-A, 65 and 65-A of the Copyright Act, 1957 which prescribe imprisonment for 3 years and also fine of upto Rs. 3,00,000/-. Any person aggrieved by any such blocking of this URL may contact at firstname.lastname@example.org who will, within 48 hours, provide you the details of relevant proceedings under which you can approach the relevant High Court or Authority for redressal of your grievance” will not land people in jail.
The Bombay Highcourt on its own took up the issue and suggested amendment in the following form- “This URL has been blocked under instructions of a competent Government Authority or in compliance with the orders of a Court of competent jurisdiction. Infringing or abetting infringement of copyright-protected content including under this URL is an offence in law. Ss. 63, 63-A, 65 and 65A of the Copyright Act, 1957, read with Section 51, prescribe penalties of a prison term of upto 3 years and a fine of upto Rs.3 lakhs. Any person aggrieved by the blocking of this URL may contact the Nodal Officer at abc@[isp-domain] for details of the blocking order including the case number, court or authority to be approached for grievance redressals. Emails will be answered within two working days. Only enquiries regarding the blocking will be entertained.” The offence was not in viewing, but in making a prejudicial distribution, a public exhibition or letting for sale or hire without appropriate permission copyright-protected material. The Court also noted that these irresponsibly worded messages had created confusion among internet users and that it was no longer possible to leave it to these ISPS to construct appropriate error pages.
JUDGES AND LAWYERS SHOULD UPDATE THEMSELVES WITH THE LATEST TREND OF LAW
The Madras High Court observed that Judges and Lawyers should update themselves with the latest trend of law while setting aside an order of Sessions Judge who had refused to order further investigation upon application by de facto complainant. The De facto complainant had lodged a Girl-missing complaint and the Police had submitted final report. The complainant then filed an application before the Sessions Court seeking a direction to conduct fresh investigation, under Section 173(8) CRPC.
Relying on the decision of the Hon’ble Supreme Court in Reeta Nag Vs. State of West Bengal and Others (AIR 2010 SC (Cri) 401), the Sessions Judge held that under Section 173(8) CRPC., the de facto complainant cannot ask for fresh investigation and dismissed the petition. Also in Vinay Tyagi Vs. Irshad Ali (2013) 5 SCC 762 and also in Chandra Babu Vs. State [2015 CR.LJ 4538] case it has been deviated that police alone can do further investigations.
Now, it is well settled that not only at the instance of the Police, even at the instance of the de facto complainant, further investigation under Section 173(8) CR.P.C. can be undertaken by the Police to find out the truth of the matter. But, Subordinate Court is not competent to direct fresh, new, de novo investigation, which is entirely different from further investigation. The Court observed that that learned additional Sessions Judge , Fastrack Mahila Court, was not updated with the latest trend of law in this aspect.
NO INTERIM MAINTENANCE TO PROFESSIONALLY QUALIFIED SPOUSE HAVING MEANS TO SUSTAIN ONESELF
Hon’ble Delhi High Court while hearing an appeal against the Family Court’s order declined to award interim maintenance to the appellant-wife as she is a qualified chartered accountant having sufficient means to maintain herself. The Court observed that Section 24 of the Hindu Marriage Act makes a provision for award of interim maintenance to a spouse who has no independent income sufficient to support her and fight the legal battle. The appellant-wife being qualified and in profession for the past 13 years need not be granted interim maintenance. The family court refused to believe her claim that she was getting only Rs 7,000 per month despite the fact that she had been practicing as a Chartered Accountant since the year 2003. The Family Court, however, awarded a sum of Rs 22,900 per month towards the maintenance of her two children.
DEPARTMENTAL PROCEEDINGS CANNOT BE SUSPENDED INDEFINITELY OR DELAYED UNDULY DUE TO THE PENDENCY OF THE CRIMINAL CASE
Supreme Court while adjudicating upon the controversy in issue whether disciplinary proceedings can be suspended in a criminal case against an employee on the sole ground that the proceeding was, initiated before the closure of recording of prosecution evidence, for indefinite period. Two judges bench comprising of T.S. Thakur, CJ and A.M. Khanwilkar, JJ, observed that the disciplinary proceedings instituted against the respondent cannot brook any further delay which is already pending for more than 10 years and held that pendency of suit does not qualifies it to be the sole basis for suspension of disciplinary proceedings.
The present decision was in pursuant to the complaint filled in February 2007, against an employee of State Bank of India, for criminal breach of trust and in September 2008, the departmental enquiry was instituted against the employee. The criminal trial was in court for 10 years without any decision and stay upon disciplinary proceeding initiated by bank was sanctioned by Chhattisgarh High Court until the disposal of trial. Chhattisgarh High Court in support of his order provided reasoning with regard to concern that employee( Respondent) if compelled to disclose her defence in departmental proceeding then that could be used by bank in course of criminal trial causing disadvantage and prejudice to the respondent. Supreme Court differing from the High Court’s view said that It is well-settled that there is no legal bar to the conduct of the disciplinary proceedings and criminal trial simultaneously. However, no straightjacket formula can be spelt out and the Court has to keep in mind the broad approach to be adopted in such matters on case to case basis.
Respondent contended that Clause 4 of the Memorandum of Settlement protects employees from indulging in any departmental proceedings till the completion of criminal trial. Single bench of High Court seconded the contention raised by respondent and stayed the departmental proceeding till the completion of trial but was later modified by the division bench allowing authority to commence with the disciplinary proceedings as soon as case from the prosecution side is closed. Aggrieved by the decision of the High Court, bank approached Supreme Court.
Supreme Court interpreted the clause and said that “On the plain language of Clause 4, in our opinion, it is not a stipulation to prohibit the institution and continuation of disciplinary proceedings, much less indefinitely merely because of the pendency of criminal case against the delinquent employee. On the other hand, it is an enabling provision permitting the institution or continuation of disciplinary proceedings, if the employee is not put on trial by the prosecution within one year from the commission of the offence or the prosecution fails to proceed against him for want of any material.”
Supreme Court relied upon the judgement given in
Stanzen Toyotetsu India Private Limited vs. Girish V. & Ors. : “The pendency of the criminal case against the respondent cannot be the sole basis to suspend the disciplinary proceedings initiated against the respondent for an indefinite period.” And held same shall be followed for large public interest. However with concern over prejudice to respondent the court stayed the disciplinary proceedings till the closure of recording of evidence of prosecution witnesses cited in the criminal trial is due and further observed; “If the trial is not completed within one year from the date of this order, despite the steps, which the trial court has been directed to take, the disciplinary proceedings against the respondent shall be resumed by the inquiry officer concerned. The protection given to the respondent of keeping the disciplinary proceedings in abeyance shall then stand vacated forthwith upon expiring of the period of one year from the date of this order.”
SUPREME COURT REJECTS PIL ON STOPPING FUNDS, FACILITIES TO SEPARATISTS
Supreme Court dismissed the PIL filed in order to stop central funds and security provided to separatist leaders in the State of Jammu and Kashmir. The Ministry of Home Affairs (MHA), Jammu and Kashmir Government and CBI were made parties to the PIL and were alleged for misusing of public office and funds. PIL has also sought a direction to the MHA and the State Government asking
them not to “release/provide” any fund either from “the Consolidated Fund of India or State treasury” under any “head or object”. The two judges bench of Supreme Court comprising of Justices Dipak Misra and Uday U Lalit described the PIL as “judicially unmanageable” and denied interfering since the issue falls exclusively in the domain of legislature.
Court castigated the lawyer who moved the PIL for referring leaders of Hurriyat Conference as “separatists” saying it to be just a perception. The bench expressed further displeasure when Sharma said that "politicians are promoting terrorism." The bench warned the lawyer for use of such words in the court saying "You cannot use such words in court. You cannot brand everyone like this unless someone is convicted. You can’t just generalise everyone. This language cannot be used in court".
The allegation made by lawyer in PIL that more than Rs
300 crore was spent on the separatists on their stay at hotels, security and other expenses by the government, misusing the money and stated the issue to be "big threat to the society" and only the judiciary could protect the country. The Apex Court denied any examination of fund provided to Jammu and Kashmir since it being a sensitive issue and management of such states is within the hands of centre. Supreme Court also stated that “Judiciary can only protect the constitutional provisions and values. Army and police are there to protect from any kind of threat. It should be left to the executive to decide what is best for the country".
The bench stressed over the purpose of PIL and stated such are out of the domain for which PIL is meant to be. It was done to deal with issues like environment, encroachment and with the passage of time; it also included issues like corruption.
IF A PERSON FAILS TO DO SOMETHING WHICH IS IMPOSSIBLE, HE CANNOT BE HELD GUILTY FOR CONTEMPT
Hon’ble Supreme Court, in its recent judgment - Gyani Chand v. State of A.P, held that as the appellant was unable to produce documents before the Court because they were destroyed due to a natural calamity, he was not guilty of committing any contempt since there was no willful breach of any undertaking given to the court in the present case.
The Court stated that it would not be fair on their part to give direction to do something which is impossible and if he fails to do so, he should not be held guilty of contempt.
The Court held that a person can be held guilty for contempt only if that person has willfully disobeyed any judgment, decree etc. of the court or has willfully committed any breach of an undertaking given to the court. In the present case, appellant’s house was hit by a cyclone in 1999, and the house drowned in the flood resulting in his belongings being vanished.
The Court held that it is clear that the appellant had no intention of committing breach of the undertaking given to the court and that it was physically not possible for the appellant to produce the documents.
“ENVIRONMENTAL COMPENSATION” OF RS 100 CRORE IMPOSED UPON SHIPPING COMPANY FOR CAUSING MARINE POLLUTION
National Green Tribunal,
in its recent judgementsamir Mehta v. Union of Indiaordered an environmental compensation of Rs 100 croreon a Panama-based shipping company and its two Qatar-based companies for causing an oil spill in 2011, when a cargo vessel sank in the Mumbai coast, and held that - “no party from any country in the world has the right/privilege to sail an unseaworthy ship to the Contiguous and Exclusive Economic Zone of India and in any event to dump the same in such waters, causing marine pollution, damage or degradation thereof”
Adani Enterprises Ltd., which is based in Gujrat, was also asked to pay Rs 5 crore as environmental compensation for dumping 60054 MT Coal in the seabed and causing pollution to marine environment. The ship, which was sailing from Indonesia to Dahej in Gujarat, was carrying about 60,000 metric tonnes of coal for Adani Enterprises Ltd along with 290 tonnes of fuel oil and 50 tonnes of
diesel. It sank 20 nautical miles off the South Mumbai coast in the Arabian Sea on August 4, 2011.
An environmental activist alleged before NGT that due to the oil spill, there had been damage to the mangroves and marine ecology of the Bombay coast.
The tribunal stated that the ship was not seaworthy, right from the inception of its voyage. The tribunal also stated that there was serious marine pollution caused by the oil spill and observed that there will be continuous pollution resulting from the ship and finally held that it was a clear case of negligence.
MAN GUILTY OF SEXUALLY ABUSING AND MURDERING A 7-YEAR-OLD GIRL TO UNDERGO LIFE IMPRISONMENT FOR 25 YEARS
Hon’ble Supreme Court in its recent judgement - Tattu Lodhi v. State of Madhya Pradesh, found the appellant guilty of kidnapping and sexually abusing a minor girl, aged about seven years, murdering her and destroying the evidence relating to the same. The Hon’ble Court punished him with imprisonment for life with further direction that he will not be released from prison until he completes a period of 25 years of imprisonment.
The court observed that the deceased was a helpless child who fell victim to a crime of lust at the hands of the appellant who was 27-years old at that time and there might be possibilities of such crime being repeated in case the appellant is allowed to come out of the prison on completing the usual period of imprisonment for life i.e. 14 years for certain purposes and therefore held that the appellant should undergo life imprisonment of 25 years.
OWNERS OF INTELLECTUAL PROPERTY RIGHTS NOT BASED IN INDIA ARE NOT EXIGIBLE TO TAX UNDER INCOME TAX ACT, 1961
In the recent judgement of Cub Pty Limited v Union of India,hon’ble High Court of Delhi held that the transfer of intellectual property rights, whose owners were not based in India, will not be taxed in the country. The court observed that it is an internationally accepted rule that “The situs of the owner of an intangible asset would be the closest approximation of the situs of an intangible asset”, unless it is changed by the local legislation.
The question raised was in relation to the situs or location of intellectual property rights such as logos, brands, trademarks, which are capital assets, but intangible in nature.
The petitioner stated that in the cases of intangible capital assets, the situs needs to be determined by referrring to the situs of the owner, because trademarks, logos etc., are intangible and do not exist in any physical form, and therefore, cannot be said to be located at any physical place. Therefore it was contended that the petitioner, being an Australian company, the intellectual property rights of the petitioner were also located in Australia. Therefore, transfer of those assets would not be eligible to be taxed in India.
The Respondents contended that since the intellectual property rights were being used in India, and also some of them were registered in India, the same were therefore situated in India.
The court ruled in favor of the petitioner, stating that the intellectual property rights were not taxable in India under the Income Tax Act, 1961.
SEARCH ENGINES DIRECTED TO DEVISE A METHOD OF “AUTO-BLOCK” IN SEARCHES RELATING TO GENDER SELECTION
Recently the Apex Court in light of a meeting with Google India, Yahoo India and Microsoft Corp. Pvt. noticed that all the three respondent companies are bound to develop a technique so that no one can enter/see advertisement or message or anything which is prohibited under the Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, specifically under Section 22 of the said Act by adopting the method of “auto block”. The Solicitor General had produced a “proposed list of words” like ‘gender selection’, ‘prenatal sex selection’, ‘baby gender selection’, etc., in respect of which when commands will be given, there will be an “auto block” with a warning and nothing would be reflected on the internet, as it is prohibited in India.
Agreeing to this, the counsels appearing on behalf of the Respondents said that apart from the aforesaid words, if anyone, taking recourse to any kind of ingenuity, feed certain words and something that is prohibited under the Act comes into existence, the “principle of auto block” shall be immediately applied and it shall not be shown, however, they can only do this when it is brought to their notice. The Court further observed that the Respondents are under an obligation to see that the “doctrine of auto block” is applied within a reasonable period of time. The matter will be taken up on 16.11.2016 for final disposal.
SC TALKING FAVOURSON MOBILE HARSHER PHONES PUNISHMENTWHILE FOR DRIVING
The Hon’ble Supreme Court had asked the Attorney general to assist the Court and said that Section 304-A IPC requires a re-look because the punishment provided therein is absolutely inadequate in the context of the modern day. In pursuance of the order dated 26.08.2016, on the issue relating to inadequate punishment under Section 304-A IPC, the Attorney General submitted that Section 304-A covers all kinds of deaths by negligence and, therefore, mere providing of higher punishment may not sub-serve the cause of justice. Elaborating further, he said that when a broken wall falls and someone gets injured or a person dies, Section 304-A is also attracted. He also submitted that some people drive while keeping their mobile phones on their ears as a consequence of which disastrous consequences take place and the effect is that the person gets into misery or he causes miseries to others. These kinds of people are booked under Section 184 of the Motor Vehicles Act, 1988 which provides for imprisonment for a term which may extend to six months or with fine which may extend to Rs. 1000 in case of commission of offence for the first time.
He submitted that the aforesaid provision is not sufficient for adequate handling of the situation at present and asked the Court to list the matter on 06.12.2016. Showing grave concern over the vehicular accidents, the Court said that it is a matter of common knowledge that the drivers drive because of their profession but there are individuals who drive the vehicle because of their uncontrolled propensity for adventure. They really do not care for the lives of others. It can be stated with certitude that the number of vehicles in the country has increased in geometrical manner and the people are in a competition to pick up the speed.
CCI REJECTS PREDATORY PRICING ALLEGATIONS AGAINST OLA
Competition Commission has dismissed allegations that ANI Technologies, which runs taxi and auto services under the name of Ola brand, abused its dominant position in the national capital with predatory pricing ways. ANI Technologies operates services under the brand names Ola and Taxi For Sure. It was alleged that the company was driving out existing players as the fare charged by it was abysmally low and was claimed to be less than one-third of the government prescribed rates. To assess the complaint and whether there has been violation of competition norms, the regulator considered the provision of radio taxi services in Delhi and the provision of auto rickshaw services in Delhi as the relevant market.
After finding that the company is not a dominant player in the relevant market, Competition Commission of India dismissed the allegations. Referring to earlier instances of similar complaints against taxi hailing apps Ola and Uber, the regulator said the present case does not bring out any new or additional fact which would warrant a different decision. Noting that there are various other players, CCI said the market is competitive and none of the players can be said to be dominant in the market for radio taxi services in the national capital at present. CCI said in its order that "In the absence of the opposite party holding a dominant position in the relevant market for auto rickshaws in Delhi, the question of abuse by it does not arise,"
CCI IMPOSES RS. 6,715 CRORE FINE ON 11 CEMENT COMPANIES
The Competition Commission confirmed penalties of about Rs.6,700 crore on 11 cement firms and one Cement Manufacturers Association for cartelization. CCI asked cement companies to “cease and desist” from activities related to “agreement, understanding or arrangement on prices, production and supply of cement in the market”. The commission also restrained CMA from collecting wholesale and retail prices, details of production and dispatch from its member firms. CCI said this was a fit case for imposing penalties under the law because the activities of the cement firms caused huge losses to consumers even as the firms profited by acting in concert.