The Bench comprised of CJI DY Chandrachud, HMJ JB Pardiwala and HMJ Manoj Misra.

Reason of suo-motu cognisance:

“The reason why we have decided to take this Suo-moto matter is because this is not a matter related to a particular murder which took place in a hospital in Kolkata. It raises systemic issues related to the safety of doctors across India,…”

“First, on matters of safety, we are deeply concerned about the virtual absence of conditions of safety for young doctors in public hospitals, especially women doctors who are more vulnerable because of the nature of work and gender.

Therefore we must evolve a national consensus. There must be a national protocol to create safe conditions of work. If women cannot go to a place of work and feel safe, we are denying them equal opportunity. We have to do something right now to ensure that the conditions of safety are enforced,”

CJI DY Chandrachud

Intervention of Association of Medical Consultants of India (FAMCI)

The aforesaid FAMCI filed an intervention in the Suo-moto case being taken by the Hon’ble Court. The intervenors submitted the raising safety concerns for the medical workers in hospital across the country in the light of the absence of any centralized laws.

The Hon’ble Court’s findings:

State laws not sufficient:

The bench observed that while several states, including Maharashtra, Kerala, and Telangana, have enacted state laws to address violence against medical professionals, these laws fail to adequately address the shortcomings in institutional safety standards.

National Task Force:

The Hon’ble CJI announced that the Court is forming a “National Task Force” (NTF) comprised of medical professionals from across the country. The NTF will be responsible for recommending nationwide protocols to ensure the safety and well-being of healthcare workers.

The Hon’ble Court noted that the NTF will also consider the following issues:

1. Medical professionals on night duty are not provided with adequate rest facilities, and there are no separate duty rooms for male and female staff.
2. Interns, residents, and senior residents are required to work 36-hour shifts, often in conditions lacking basic hygiene and sanitation.
3. The absence of security personnel at hospitals is more common than not.
4. Healthcare professionals do not have sufficient access to proper toilet facilities.
5. Accommodation for medical professionals is often located far from the hospitals, with inadequate transportation services.
6. There is either an absence or insufficient functionality of CCTV cameras for hospital monitoring.
7. Patients and their attendants have unrestricted access to all areas within the hospital.
8. There is a lack of screening for arms and weapons at hospital entrances.
9. Certain areas within the hospital are poorly lit and dingy.

Composition of NTF

The bench ordered the creation of a ten-member National Task Force, led by Surgeon Vice Admiral Arti Sarin, AVSM, VSM, Director General Medical Services (Navy). The National Task Force is assigned to make recommendations concerning the safety, working conditions, and well-being of medical professionals. The Task Force must submit an interim report within three weeks and a final report within two months.

Court Appeals for Doctors to Resume Duties

In its order, the Court appealed to the protesting doctors across the country to resume their duties. The Court emphasized that, as it has now addressed the concerns regarding the safety of medical professionals, those participating in the protests should refrain from continuing their absence from work.

Slammed West Bengal Police

The Hon’ble CJI expressed grave concerns about the widespread dissemination of the victim’s name, photographs, and video clips of the deceased in the media, describing it as “extremely concerning.” Senior Advocate Kapil Sibal, representing the State of West Bengal, submitted that the photos were taken and circulated before the police arrived.

The Hon’ble Court questioned the State regarding the conduct of the hospital’s Principal, the delay in registering the FIR, and the vandalism at the hospital during a public protest on August 14.

The Hon’ble CJI highlighted that after the crime was discovered in the early morning, the Principal initially suggested it was a suicide, and the parents were not allowed to see the body for several hours. Sibal refuted this, stating the State would provide a full record of the facts.

In furtherance, the Hon’ble CJI also questioned why the Principal was given charge of another hospital after resigning from RG Kar Hospital. The bench then raised concerns about the timing of the FIR. Sibal explained that an “Unnatural Death” case was registered immediately, denying any delay in filing the FIR.

However, CJI noted that although the autopsy was conducted between 1 PM and 4:45 PM, the FIR was registered only at 11:45 PM, after the body was handed over to the parents at around 8:30 PM for cremation. Sibal clarified that the FIR was based on the victim’s family’s complaint.

Solicitor General Raises Concerns Over Police Inaction and Multiple FIRs

Solicitor General of India Tushar Mehta argued that a mob of 7,000 people could not have gathered without the knowledge or involvement of the police. The bench, in its order, expressed its inability to understand how the authorities failed to control the vandalism. The Solicitor General further contended that the root of the problem lies in the West Bengal police being led by a DIG-in charge who is himself facing various allegations, a claim which was refuted by Senior Advocate Kapil Sibal.

Sibal informed the Court that over 50 FIRs have been registered regarding the vandalism incidents, with 37 individuals already arrested. In response, the Solicitor General expressed surprise at the number of FIRs, suggesting that this approach might hinder a thorough investigation.

SC Directs State to Refrain from Coercive Action Against Peaceful Protesters

The Court advised the State to refrain from taking coercive actions against individuals participating in peaceful protests or expressing their views through media and social media. Senior Advocate Kapil Sibal noted that a significant amount of misinformation is being circulated in the media regarding the case, and clarified that the State’s actions were targeted solely against those spreading such false information.

“We expect that the Govt of WB shall observe necessary restraint in the face of peaceful protests being conducted by any quarter of the society bearing on the issues which form the subject matter of the incident in Kolkata.”

The Hon’ble Court

The Hon’ble SC Takes Serious Note of Threats to Women Doctors; Orders CISF Security

During the hearing, Senior Advocate Aparajita Singh, representing the organization “Protect the Warriors,” informed the bench that after the vandalism incident on August 14, a mob returned to the medical college hospital and threatened women doctors, warning them they would face the same fate as the rape victim if they reported the incident. Singh highlighted that one “brave doctor” had lodged a complaint with the police via email and provided a copy to the bench, which the Court took seriously.

Chief Justice of India DY Chandrachud expressed deep concern that the mob called the women doctors by name and threatened them with violence. CJI questioned why the police fled the scene. Justice Pardiwala, also on the bench, raised doubts about whether the same police could be trusted to protect the doctors. In response, CJI stated that the Court would order the Central Industrial Security Force (CISF) to provide security to the hospital and hostel, a move to which the State had no objection.

The Court recorded that, out of the 700 doctors who were present at the RG Kar hostel, only 30-40 females and 60-70 males remained after the vandalism. The Court invited any doctor with safety concerns to email the Registrar Judicial of the Supreme Court.

Additionally, the Court directed the Central Bureau of Investigation (CBI) to file a status report on the investigation by Thursday, August 22, and instructed the State of West Bengal to submit a status report on the acts of vandalism.

The post Detailed Brief: Supreme Court on RG Kar Incident appeared first on LexForti .

Facts

A section 7 application filed by State Bank of India and Standard Chartered against Essar Steel India Ltd.(ESIL) for a default of Rs. 45,000 crores was admitted by NCLT and Mr. Satish Kumar Gupta was appointed as the IRP. In response to the invitation for expression of interest, ArcelorMittal(AM) India on 11^th October 2017 and an entity called Numetal Ltd. on 20^th October 2017 submitted their interest. The resolution plans were submitted on 12^th February 2018. On the apprehension that the RP might find it ineligible under Section 29A, Numetal filed an application before the NCLT to declare it eligible on 20^th March 2018. However, on 23^rd March the RP found both the resolution applicants to be ineligible. In his report he stated the reasons for declaring both the Ras ineligible. 

AM Netherlands holds 29.05% shareholding in Uttam Galva and has been classified as a promoter by the way of a co-promoter agreement dt. 4^th September 2004. AM Netherlands and AM India are connected persons as mentioned in the resolution plan. The account of Uttam Galva was classified as NPA for a period more than 1 year till 2^nd August 2017. AM Netherlands sold its shareholding to the other promoters on 7^th February 2018 and applied before NSE and BSE for declassification as a promoter as per SEBI regulations. As on the submission date of the resolution plan, AM Netherlands has not been declassified as a promoter of Uttam Galva and is hence ineligible under Section 29A(c). The plan was rejected and was not placed before the COC. 

Numetal as on the date of submission of expression of interest, was reliant on Essar Communications, one of its shareholders to comply with the eligibility requirements concerning tangible net worth in the EOI. On the date of submission of the resolution plan, it was reliant on Crinium Bay to comply with these regulations. Numetal was incorporated as a joint venture between Crinium Bay and Aurora Enterprises. Since Numetal relied on its shareholders for meeting the eligibility criteria at various stages, the RP decided to take into scrutiny the joint venture holders themselves to check the eligibility of the RA. Aurora Enterprises is comptletely held by Rewant Ruia and he comes within the scope of immediate relatives being the son of the promoter of ESIL, which was declared an NPA for over a year prior to the commencement of CIRP. Rewant Ruia was deemed to be acting in consort with his father Ravi Ruia and hence declared ineligible. 

Issues

1. Whether purposive interpretation of Section 29A is to be adopted on both the text and the context of the enacted provision?
2. Whether the text of the provision evinces persons acting in consort to the persons in management and control as stated under Section 29A?
3. Whether management, control and promoter are all to be met with for ineligibility under the section?
4. Whether the timeline provided under Section 12 read with 33 are mandatory and cannot be extended?
5. Whether the corporate veil is to be lifted for determining the eligibility under Section 29A of the Code?
6. Whether Section 29A(c) applies as on date of commencement of CIRP or as on the date of submission of the resolution plan?

Ratio

The court held that the provision should be interpreted to mean de facto position of the persons so as to include persons who are actually in control whether jointly or in concert. It is imperative to find the real individuals for the submission of a resolution plan. For the purpose of this provision if the persons are acting jointly then establishing an element of a joint venture is also not required. The court held that for persons to be acting in concert, an understanding (even if it is informal and indirect) to exercise over a target entity must be decided depending upon the facts of the case. 

The court stated that the ineligibility shall be applicable from the date of submission of the resolution plan as made clear by the statute itself in the opening words of the provision. 

Elucidating on the requirements of persons in management or control or promoters an NPA, the court held that any one of these elements needs to be proved for the RA to be ineligible. Both control and being a promoter of the NPA shall include de jure and de facto position while management refers to only de jure position as provided under the Companies Act. This ineligibility can be removed only if the persons falling under these categories make all the overdue payments before the submission of the resolution plan. The court emphasised on this aspect to avoid letting persons who are in charge of the corporate debtor to regain control without paying off its debts. But this interpretation does not extend to promoters of the companies with PUFE transactions. Even the complete payment of PUFE amounts cannot make them eligible again. 

The timeline given under Section 12(1) is mandatory and if no resolution plans are received or if they are rejected then the corporate debtor needs to be liquidated. It is of utmost importance for all the authorities to follow the model timeline. 

RP is required to examine the resolution plans and shall submit only the complete resolution plans before the COC. This provision does not empower the RP to decide if a resolution plan is in contravention with the law or not but he is required to form a prima facie opinion cornering its legal compliance. Though it is not a statutory requirement, it is advised that the RPs attach a due diligence report to each resolution plan stating its compliance of law or lack thereof. It was held by the Apex Court that RA does not have a vested right to have his plan be considered so a rejection by the RP cannot be challenged before the AA. Since no right is being affected a writ to this effect is also not maintainable. RA can approach the NCLT only if its plan has been considered by the COC after its voting. 

The rejection of a resolution plan by COC on the basis of ineligibility under Section 29A is not final and can be determined by the AA after hearing both the parties. If however the plan gets approved by both the COC and the AA, then the appellate tribunal may be approached for adjudication.

Both the RAs were held to be ineligible but the continuation of the CD as a going concern is in the best interests of all stakeholders so every effort was to be made in that respect. Since the law on Section 29A was laid down for the first time the court permitted the resolution applicants another opportunity to submit their resolution plans if they pay off their NPAs within two weeks. Then the COC may consider all the plans before it accept the best one with requisite majority or the CD will be liquidated. 

The post Applicability and Interpretation of Section 29A appeared first on LexForti .

Facts

Numerous writ petitions have been filed before the SC challenging the constitutionality of the amendment of 2018. This amendment made deem allottees of a real estate project to be financial creditors, enabling them to trigger CIRP against the real estate developers under Section 7 of the Code. The amendment additionally entitles them to be represented at the COC through ARs. 

Explanation given under Section 5(8)(f) clarified that the real estate allotees also come within the scope of financial debt as it falls under the category of forward sale or purchase agreement with the commercial effect of a borrowing. Respective changes have also been introduced under Section 21(6A)(b) to include allottees in the constitution of the COC and under Section 25A to lay out provisions concerning authorised representatives. 

Issues

1. Whether the funds raised under a real estate project from allottees has the commercial effect of a borrowing?
2. Whether the provisions of RERA and IBC may be read harmoniously after the amendment?
3. Whether the distinction made between operational creditors and real estate allottees is based on intelligible differentia?
4. Whether the amendment made the allotees of a real-estate project financial creditors, entitled to be represented in the COC by an AR?
5. Whether deeming fiction can be adopted to include allotees under the scope of Section 5(8)(f) of the Code?
6. Whether the explanation given under this provision enlarges the scope of it?

Ratio

The allottees entered into assured returns/committed returns agreements with the developers, whereby the developers agree to pay a certain amount to the allottees on a monthly basis from the date of execution of the agreement till handing over the possession of the property. The amount raised by the developers by the assured returns scheme was shown as “commitment charges” under the head “financial costs”. This indicates that the funds raised have the commercial effect of a borrowing. A financial debt means a debt along with interest, which disbursed against the consideration of time value of money. The promoter was asked to provide a declaration that he undertakes to complete the project within a certain time period and that 70% of the funds raised from allotees under this project from time to time shall be deposited into a separate account spent only to defray the cost of construction of that particular project. The courts have included home buyers as financial creditors in cases where the agreement includes an assured returns policy. In some cases they have been categorised as “creditors other than financial or operational creditors”. By not giving them the status of either financial creditors or operational creditors they are being deprived of:

The right to initiate CIRP 

1. The right to be a part of COC
2. The guarantee of receiving at least the liquidation value under a resolution plan. 

The money disbursed by the home buyers was in relation to a future asset and these funds amount to a significant portion of the funds that are used to finance the real estate projects. It was held that even if not all forward sale or purchase agreements are financial transactions, if they are structured as a tool or means for raising finance then it shall be classified as a financial debt. 

The non obstante clause under Section 88 of RERA came into effect on 1^st May 2016 and Section 238 of IBC came into effect on 1^st December 2016. It was contended on behalf of the real estate developers that, RERA is a special enactment and IBC is a general law, hence RERA is to be given precedence. It was held that, the fact that the amendment drew the definition of allottees from RERA implies that the drafting committee was aware of the existence of the enactment and taken into consideration of all of the applicable provisions. The provisions under RERA are in addition to and not in derogation of the provisions of IBC. The remedies laid out under RERA are intended to be additional remedies and not exclusive remedies. Moreover it is to be noted that the authorities to be set up under RERA are to come into effect from 1^st May 2017 succeeding the provisions of the code that came into effect on 1^st December 2016 itself. 

RERA and IBC function into compltetely different fields and the code deals with proceedings in rem which focuses on rehabilitation of the corporate debtor. On the other hand RERA seeks to protect the interests of the individual investors so that they are not left in a lurch by ensuring that they are compensated or reimbursed to the extent of their payment towards the allotted property. Hence both the enactments can co-exist and to the extent of any inconstancy, RERA is to give way to IBC. 

It was contended by the counsels for the real estate developers that the classification of allottees as financial creditors is discriminatory as it treats unequals equally and equals unequally without any intelligible differentia having any nexus with the objects of the Code. It was contended that the real estate developers were being discriminated against as they are not being treated equal to other entities that supply goods and services. If the allottees are treated as financial creditors, then all they have to do is to produce evidence indicating that a debt is due to him irrespective of any disputes, while an operational creditor would fall outside the purview of code in case of a dispute. This discrimination was to have infracted Article 14 of the Constitution. The Apex Court held that equal protection under law, does not necessarily invalidate any classification made by law. It was elucidated that the reasonable classification includes “all who are similarly situated and none who are not”. It was held that the legislature is at liberty to experiment with economic legislations in public interest and any practical considerations that hurt a few cannot be helped. It was concluded that the contentions by the real estate developers were not successful in establishing that the classification of real estate developers is not based upon intelligible differentia that distinguishes them from other operational creditors. 

Supplementary contentions that this categorisation also infringes article 19(1)(g) and 300A was also put forth by the real estate developers. The court held that the language of the provisions is unambiguous and clear, hence the contentions raised by the Petitioners do not stand. 

In the light of the deliberations under the preceding issues, the Apex court adjudged allottees under real estate projects to be financial creditors and hence have a right to have representation in a COC meeting. Homebuyers and debenture holders can be numerous so the committee was of the opinion that the only feasible mode of accommodating all these financial creditors in a COC meeting was through an authorised representative. Such an authorised representative can be appointed either by the way of the debt agreement or by the NCLT for each such class of creditors.

It was contended by the Petitioner that the definition under Section 5(8)(f) was to be an exhaustive provision and to be read noscitur a sociis (an unclear or ambiguous word must be read in its context). It was argued that this provision cannot be stretched to include allottees. The primary argument by the petitioner is concerning the existence of a debt. The court held that noscitur a sociis is a mere rule of construction and words with wide scope have been deliberately used in residuary power to subsume instances that do not fall under the scope of the sub-clauses to fit within the umbrella of Section 5(8)(f). For the existence of a debt, a liability or an obligation in respect of a claim must be due. It was held by the court that a claim is defined as a right to payment or a right to remedy even if it arises out of a breach of contract. The disbursal under this provision refers to the payment of instalments by the allottees against consideration of time value of money. The real estate developers have an obligation to use the funds raised in the construction of the project and it being at a discounted value from the perspective of the allottee as he is having to lesser by the way of instalments than if he were to pay the complete amount after the completion of the project. Further the phrase “commercial effect of a borrowing” has a wide bearing on any other transactions that that inflicts financial indebtedness. It is clear that the allottees fall within the scope of this provision owing to the nature of the financial arrangement between them and the developers at various stages of construction. 

The introduction of deeming fiction is necessitated where the Parliament requires the subject matter to be treated as real. It was held by the Supreme Court that the deeming fiction has been taken into account only to the extent necessary to provide clarification on the true legal position. After the purpose of the statutory fiction has been ascertained, it must be carried to its logical conclusion and assume all such other necessary facts for it to operate. Thus the explanation uses deeming fiction only to put it beyond doubt that the allottees also fall within the scope of Section 5(8)(f) of the Code. 

It was held by the court that the explanation inserted by the amendment does not enlarge the scope of the provision. It merely clarifies the doubts concerning the status of allottees under real estate projects. The allottees are being subsumed under the provisions as it originally stood. The court resorted to creative interpretation of the provision for the purpose of a beneficial legislation. 

The post SC on Status of Homebuyers under the Waterfall mechanisms appeared first on LexForti .

Facts

Appellant is a multi product manufacturing company in diverse sectors. It started going into losses in 2012 and failed to meet with the requirements of 19 of its financial creditors (banking entities). It then proposed a corporate debt restructuring and the financial creditors formed a consortium led by the Central Bank and a restructuring plan was approved in 2014. According to the aforementioned restructuring plan, the creditors were to infuse more capital into the entity and the debt would be repaid by a 2 year payment plan. Subsequently, an application was filed under Section 7 of IBC by ICICI Bank due to default on part of the Appellant in meeting with the requirements of the payment plan. 

On the first instance, the Appellant was of the contention that under Maharashtra Relief Undertakings (Special Provisions) Act, all the liabilities and remedies for enforcement were suspended for a period of one year by the way of notification issued on 22^nd July 2015 and for another one year as notified on 18^th July 2016. In the second hearing, the appellant contended that the default has occurred to due to non release of funds under the Master Restructuring agreement by the creditors. It was stated that the credit given by five of its lenders were repaid in accordance to the agreement as they have complied with its terms in full. 

NCLT held that IBC would prevail over the Maharashtra Act in view of the non-obstinate clause given under Section 238 of the Code. It was held that the Parliamentary statute would prevail over that of a State and the evidence placed before it was sufficient to ascertain the existence of a default. Hence the application was admitted and moratorium was imposed. 

An appeal was filed before NCLAT. NCLAT was of the view that both of these legislations operate in different fields and are not repugnant to each other. It further held that the Appellant cannot derive any advantages from the state act as it was done only in order to stave of the proceedings under Section 7. 

It was contended by the appellant before the Supreme Court that both the acts are repugnant to each other and they cannot function together. The Maharashtra Act imposes a limited moratorium and the directors are still in control of the management of the corporate debtors after which the State government may take control over the company. While on the other hand the Code places a complete moratorium and adopts a creditor in control model. It was contented by the Respondents that the erstwhile directors are no longer in control over the corporate debtor and hence are not in position to initiate any proceedings on behalf of the corporate debtors. 

Issues 

1. Whether the present appeal by the erstwhile directors on behalf of the corporate debtor maintainable ?
2. Whether the Maharashtra Act and IBC are repugnant to each other?

Ratio 

It was held by the Apex Court that, the management of the company was handed over to the interim resolution professional and the directors are no longer in a position to represent the debtor. Hence it was held that the appeal is not maintainable by the Directors.

The SC held that the NLCT and NCLAT were correct in holding that the Maharashtra Act does not place a bar on proceedings under Section 7 of the code owing to the non obstinate clause under Section 238 of the Code. The Court referred to Article 254 of the Constitution which states that in case of any inconsistency between laws made by the Parliament and laws made by the Legislature of the State, the laws made by the Parliament would prevail irrespective of whether they have been made prior or later than the state legislation. It was held that the admission of under Section 7 was right and the appellant is unconditionally obligated to follow the provisions of the code. 

The post Insolvency and Bankruptcy Code to prevail over State Legislations appeared first on LexForti .

Keywords: Judicial Review, Constitutionality of Law, Re-modification of Laws, etc.

FACTS

There were multiple Petitions which were filed at Madras High Court. These Petitions were filed under Article 226 of the Constitution. These Petitions challenged the validity of Rule 29(4) of The Copyright Rules 2013 (hereinafter referred as Rule).

Now the Division Bench of the Madras High Court passed an interim order on 2^nd August 2021. The said order was appealed before the Supreme Court of India

What did the Division bench directed; which was appealed?

1. To not broadcast the copyrighted work without issuing a prior notice under Rule 29;
2. Information like duration, time slots and the like; including the quantum of Royalty payable maybe furnished within 15 days of the broadcast;
3. Compliance be affected with a modified regime of post facto, as opposed to prior compliance mandated by Rule 29(4).
4. The Statutory mandate of a 24-hour prior notice shall be substituted by a provision for compliance within 15 days after the broadcast; and
5. The said interim order has limited scope toward the Petitioners approaching this High Court and 2^nd-3^rd Respondents.

ISSUES

High Court

1. Whether the Rule 29(4) of the Rule violates Article 19(1)(a) of the Constitution?
2. Whether the Rule 29(4) of the Rule ultra vires Section 31D of the Act?

Supreme Court

1. Whether the interim order of the High Court can be sustained?

CONTENTIONS OF PARTIES

Appellant: The interim order of the High Court has the effect of re-writing Rule 29(4) of the Rules which was framed w.r.t Section 31D and 78(2)(cD) of the Copyright Act 1957 (hereinafter referred as “Act”)

There was no challenge to the validity of Section 31D of the Act and still the Rule 29 was reframed keeping Section 31D as the point of perspective.

The scope of the interim order was made for the parties to the proceeding only. It leaves the Pan-India operation in the uncertainty.

Respondent: Appellant haven’t filed any counter affidavits in response to the Petitions.

Appellant: Appellant assured that they will file the counter-affidavit expeditiously; so that the Writ Petitions could be disposed of.

Respondent clarified that while Section 31D states about the notice; it does not specify about the conditions to incorporate the minute details.

Section 31D was brought keeping the interest of the broadcasters; by the Parliament. Rule 29(4) defeats the object of Section 31D as it incorporates the need of prescribing the minute details.

DECISION AND FINDINGS

Supreme Court acknowledged that the Petitioners were represented before the High Court, on caveat; and afterward, disposed the said appeal for the said reason.

Court said that the said batch of Petitions are yet to be disposed; i.e., will be getting disposed on 4^th October 2021.

The Court in order to dispose the present appeal decided to briefly look into the facts.

The Court recognized that Section 31D was brought up by the Copyright Amendment Act 2021. Section 31D(1) stated that, the Broadcasting organization which desires to communicate the public regarding any published literary/musical/sound recording may do it after complying with the said Section.

The Court then proceeded with the five requirements:

1. A prior notice
2. In the manner prescribed
3. The Intent to broadcast the work
4. Duration and territorial scope of the broadcast
5. Payment to the owner of the work

There were applications which were filed before IPAB (Intellectual Property Appellate Board). These applications were regarding determination of rates; The rates for the purpose of statutory licensing under Section 31D (For FM Radios).

On 31^st December 2020, the IPAB determined the rates. These rates would be effective from 1^st October 2020. According to the said Order, the music companies were supposed to pay the arrears of royalty to the music companies on or before 10^th February 2021 for the period of 1 Oct – 31^st Jan.

It directed that; the radio broadcasters have to comply with the Rule 29 of the Rules to obtain the statutory license from the public license from music companies by giving advance notice to the owner of the copyright along with an advance payment. Now, there were more directions which were passed by the IPAB; accessible from here.

Now these directions by the IPAB were challenged by the Copyright owners. There are pending suits before the Delhi and Bombay High Court.

The High Court while examining the issues, observed that the Rules of disclosing information are indeed claustrophobic and need to be modified.

The rule was re-fashioned and time-limit of disclosing the details was kept ‘within 15 days’ of the broadcast.

Court denied to give any opinion on the Constitutionality of the Rules; as the matter were still pending before the High Court of Madras.

Court sticked to the issue. Court referred the case of In Re: Expeditious Trial of Cases under Section 138 of the NI Act, 1881 and emphasized that the Judiciary cannot transgress into the domain of the Policy making by re-writing the Statute.

Court also referred the case of Padma Sundara Rao v. State of Tamil Nadu, where it was held that, if the language of the statute is clear and precise, then there is no need to read the words of such law into the statute.

Final Finding

Court was of the view that the High Court’s act of re-drafting Rule 29(4) was unwarranted, particularly at the interlocutory stage.

High Court’s ruling to enlarge the period of 15 days was also impermissible, since it would substitute a statutory rule made in exercise of the power of delegated legislation.

Court allowed the appeal.

CONCLUSION

Madras High Court tried to re-interpret the language of the rule during the inter-locutory stage. While the matter regarding the Constitutionality was still pending; the court before disposing the matter, remodified the rules. Supreme Court reclarified after citing past cases, that; Courts are not allowed to transgress into the rule making process. Court has the power to Judicial Review. Court shall not go outside the said purview.

The post Courts cannot re-modify Laws | Scope limited to Judicial Review only! appeared first on LexForti .

Following the Classic Trinity Test, Serum Institute of India successfully defends the trademark “COVISHIELD” for its own Covid-19 vaccine in a passing-off action brought by a Nanded-based patented firm. 

The Bombay High Court’s recent decision denouncing Cutis Biotech’s petition to prevent SII from ever using trademark ‘Covishield’; for its vaccine has laid the groundwork for the reduction of vexatious lawsuits.

The Hon’ble Court, through discarding Cutis Biotech’s appeal; stated that ‘Covishield’ is a widely known Coronavirus vaccine. The State’s Vaccine Administration Program will be confused and disrupted; if a temporary restraining order directing SII to stop using the mark “Covishield”. In this case, an injunction would have far-reaching consequences that would extend further than the parties to the lawsuit.

Procedural History

Before the District Judge : Nanded

Around December 2020, a Nanded-based patented firm, through its sole proprietor Mrs Archana Ashish Kabra, filed a lawsuit toward Serum Institute of India (herein referred to as SII) and Anr. (one, Mr. Bhandaru Srinivas), desiring an order of injunctive relief prohibiting SII from using the trademarks ‘Covishield’ and/or ‘Covid shield’ for their COVID-19 vaccine.

Cutis Biotech asserted that they had adhered to the trademark “Covishield” before SII, and also that their sanitisers and disinfectants had begun to circulate throughout the market under the same title.

SII filed an application under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908; requesting that the plaint be dismissed on the grounds that the lawsuit was just not maintainable under section 134(2) of the Trademark Act, 1999.

Before the Commercial Court: Pune

Cutis Biotech submitted a Commercial Suit in the District Court of Pune; together with an appliance for a temporary injunction, while the Nanded suit had been pending adjudication.

Contentions: Cutis Biotech

It was contended; that they coined the term “Covishield” for pharmaceutical and other associated accessories, for the first time;

Additionally, they were using the trademark ‘Covishield’ on their hand sanitiser since April 29, 2020. The date as to which they submitted an Application for registration of the mark ‘Covishield’ in Class 5 in regards to; pediatric, ayurvedic, allopathic, medicinal, and pharmaceutical preparations, vitamins and nutritional supplements for animals and humans; that is still pending well before Trademarks Registry;

It was asserted, that their company garnered products bearing the trademark ‘Covishield’ from their producer. It includes antiseptics and disinfectant liquid, sanitizers, surface decontaminant spray, as well as fruit and vegetable washing liquid, and began selling them throughout India;

Further assertions were made that, their merchandise yielding the trademark ‘Covishield’ are sold commercially. Such products have been popularized through; advertising, publicity, endorsement, and marketing, and that as a result of their preceding use of the trademark; they already have earned reputation and goodwill;

The SII applied for the trademark ‘Covishield’ under Class-5 for the product ‘vaccine for human use’ only on June 6, 2020; and also that the implementation is still currently awaiting with the Trademarks Registry;

They plan to launch a several more products for sale yielding the trademark ‘Covishield,’ include but are not limited to vaccines; but then that due to Serum Institute of India’s trademark registration and various press releases affirming the Covid-19 vaccine’s name as ‘Covishield’, their major trading partners and producers have denied to deliver the products and/or collaborate with them owing to a ‘potential of ambiguity’ pertaining ‘Covishield’, that has led them to suffer losses;

that the both candidates are trading in a prevalent area of activity and since Cutis has used the same trademark prior to SII; the use of “Covishield” by Serum Institute of India is mischaracterizing and manipulative to consumers.

Counter Contentions: Serum Institute of India

Suppression of Material Facts

Cutis Biotech has clandestinely filed the current suit without discontinuing or informing the Nanded court of the previous suit, which strives the very same sculptures and is filed against the other parties.

Cutis Biotech has withheld a material fact from the Hon’ble Court, namely that on December 12, 2020, it applied to the Trademarks Registry for the registering of the trademark “Covishield” in respect of “vaccine for human use,” and has thus accosted the Court with soiled hands.

Abuse of process of Law

Serum Institute of India relied on the judgements in K.K. Modi v. K.N. Modi[1], M/s. Chetak Construction Ltd. v. Om Prakash & Ors[2]. and Union of India & Ors. v. Cipla Ltd. & Ors[3]., in submitting that Cutis had filed two Suits along with two Applications for the same reliefs against the same parties Serum Institute of India but in two different Courts which amounts to an abuse of the process of law, forum shopping, and breach of the principles of natural justice.

Cutis failed to establish a case for passing off

Cutis Biotech seemed to have prima facie struggled to meet the three main elements of the Original Trinity test for passing off a trademark:

(a) Cutis Biotech’s goodwill;

(b) Serum Institute of India’s misinterpretation; and

(c) losses incurred to Cutis Biotech’s goodwill.

Cutis Biotech failed to meet any of the parameters, according to Serum Institute of India.

Prior Goodwill attached to the Vaccine and their usage

SII claimed that it was founded in 1966 with the goal of producing life-saving immuno-biologicals; and were in short supply in the country and had to be imported at exorbitant prices. SII has been successful in making India self-sufficient in dealing with various diseases and illness. Such complications includes Tetanus, anti-toxin, and other life-saving biologicals on a large scale and at reasonable prices since its inception.

It was further claimed that, ithas built a strong reputation as well as goodwill amongst these trade and the general public as a result of its advancements and comprehensive research and development in collaboration with AstraZeneca and Oxford University to evolve a vaccine for COVID-19 virus immunity, as well as the applications for various regulatory authorizations and authorizations.

Further submissions were made that, several transcripts since March 2020, making reference to a USD 100 million financing and its plan to develop a Covid-19 vaccine in collaborative efforts with Astra Zeneca, demonstrating prior use of the ‘Covishield’ mark.

As a result, when SII implemented for registering of the trademark “Covishield” on June 6, 2020; it was already well-known in the press. SII had also filed the necessary documents; demonstrating a continuous chain of fast and efficient activity in the development of the vaccine under the said name.

SII argued that Cutis Biotech’s use of the trademark ‘Covishield’ earlier to SII was highly improbable.

Visual Appearances

Because the essence as well as visual appearance of both parties’ products are so dissimilar; there is no chance of consumers being confused, misled, or deceived.

Case Laws

SII contended that although a party has a registered trademark for goods or products in a classification descending underneath one class; the Supreme Court’s decisions in Nandhini Deluxe v. Karnataka Cooperative Milk Producers Federation Limited[4] and Vishnudas Trading as Vishnudas Kishendas v. Vazir Sultan Tobacco Co. Ltd., Hyderabad & Anr[5]; it’s doesn’t vest dominance over the complete category of goods with the owner of these registered mark.

SII also argued that there really is no deceiving similarity or mischaracterization, citing the Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd[6]. decision. SII also cited the decision in N. R. Dongre & Ors. v. Whirlpool Corporation & Anr.[7], which established that comparative hardship and the equilibrium of accessibility must be considered when granting an injunction for a passivized act.

Further Claim

SII also asserted that Cutis Biotech can only assert to have initiated the market in May 2020; and that the company has not been in business long enough to even have built up significant goodwill or reputation that can be exploited by SII. As a direct consequence, the basic components of the passing off action are lacking.

SII also argued that the equilibrium of expedience favors them as the vaccine is a medicine that prevents a fatal disease, namely Covid­ 19.

SII is currently supplying this vaccine to the Indian government and distributing it to a number of other countries across the world. As an outcome, the number of people who have used the vaccine ‘Covishield’; It is much higher than the number of people who have used Cutis Biotech’s product(s).

Rationale behind rejection of Cutis Biotech’s plea:

Cutis Biotech prima facie failed to prove that any independent customer was conned as a result of SII’s actions.

There is a difference in the overall aspect of the products of SII and Cutis Biotech. It has also different objectives; any likelihood of deception also cannot be identified.

Cutis Biotech also failed to prove the trinity test for passing off a trademark (more specifically described hereinabove). It failed to show that the equilibrium of convenience is in its favor or that it will suffer irreversible damage if the injunction is not awarded.

The Court considered that, the people all over the world were waiting for a vaccine to stop Covid-19.. As a result, it was determined that prohibiting SII from using the trademark ‘Covishield’; and disseminating the vaccine under that trademark at this time would cause significant hardship.

As a result, the Court determined that both comparison hardship and the balance of accessibility favor SII.

Affronted by the interim order made by the Hon’ble Commercial Court; Cutis Biotech contested the interim order before the Hon’ble Bombay High Court in a Plea under Section 13 of the Commercial Courts Act, 2015.

Before the Hon’ble Bombay High Court

The Hon’ble Court applied Classic Trinity test, which states that the essential elements in a trademark infringement initiative are;

(a) constructing reputation and goodwill affixed to the services and goods; 

(b) demonstrating that the respondent’s actions are likely to result the public into believing that the respondent’s goods and services are the applicant’s goods and services; and

(c) demonstrating that the claimant is likely to suffer or has suffered damages in the event of the respondent’s actions.

A Division Bench of the Bombay High Court in Pune, agreeing with the Hon’ble Commercial Court, described five  significant factors for dismissing Cutis Biotech’s appeal, that are as follows:

Prior Usage

After reviewing the evidence on database, the Court determined that there was sufficient evidence to show prior adoption and use; and that SII has continued to use it without interruption. SII had also obtained various authorizations and licenses to manufacture the vaccine underneath the trademark ‘Covishield,’ it was discovered.

The Hon’ble bench took into account;

(i) inter-departmental correspondence pertaining to the mark,

(ii) the fact that SII is evolving a vaccine being reported in the media being not refuted,

(iii) the monthly manufacturing of 60 million doses and deliver of 48 million doses of the vaccine to the Government of India,

(iv) various licenses obtained for fabricating the vaccine, and

(v) various agreements signed globally for the consumption of the vaccine.

“After assessing the evidence on record, we find that Serum Institute coined the term ‘Covishield’ and took significant steps toward its design and deployment,” the Hon’ble Court concluded. As a result, there is sufficient and convincing evidence on file to show Serum Institute’s prior adoption of the mark.

Likelihood of Confusion

The Hon’ble Court disagreed with Cutis Biotech’s claim that there is indeed a risk of confusion between Cutis Biotech’s and SII’s products.

The vaccine ‘Covishield’ manufactured by SII is not available on prescription; and will be administrated through government agencies, according to the Court.

As a result, the Government of India is the buyer of SII’s ‘Covishield’ commodity. Cutis Biotech’s merchandise, on the other hand, are allowed to be sold. While they may be related to the same field, namely health care products, the general public cannot be confused. The Hon’ble Court, ascertained that,

“The presidency of vaccine through injection is very well established. It’s a stretch to believe that average consumers will be confused about the use of a trademark in a government-administered vaccine at designated locations and over-the-counter sanitizer merchandise.

……To substantiate passing off by SII, Cutis Biotech will have to demonstrate that SII is passing off its products as that of Cutis Biotech premised on the benevolence of Cutis Biotech. As a result, Cutis Biotech’s assertion is inherently self-destructive.”

Goodwill

The Court found insufficient evidence to demonstrate goodwill in pursuit of Cutis Biotech’s use of trademark “Covishield” while adjudicating the issue of both parties’ goodwill.

“According to us, there is insufficient substance on record to hold that Cutis Biotech has founded sufficient goodwill pertaining the trademark “Covishield,” the Court concluded. Cutis Biotech’s failure to validate its claim that it was a preceding user of the mark and had procured goodwill is more than clear based on the evidence presented. The District Court’s finding that Cutis Biotech has not founded this test for awarding an injunction is not perverse”.

Future Damage

The Court looked into the combined influence of the Classic Trinity test when deciding on the damage suffered; and the possibility of such damage as a result of the alleged passing off. It stated that; the factors contributing to the potential injury must be viewed in the context of prior usage.

When a party fails to maintain goodwill and prior use, the argument of lost revenue or potential injury cannot stand on its own. As a result, the Bench determined that because the Respondent is the first to use the mark and has built up goodwill as a result; customers are not consciously purchasing Cutis Biotech’s goods.

Balance of Convenience

Ultimately, in assessing the most important aspect of a passing off action; the Court noted that administration of SII’s vaccine, ‘Covishield,’ began on January 16, 2021, after the Case was filed on January 4, 2021. In the first round, nearly 300 million people were recognized as candidates for the vaccine. Afterward, the first order for 11 million doses of ‘Covishield’ was positioned by the Indian government.

The vaccination drive for the age of 60+ and those with the age of 45+ having comorbidities began on March 1. As of March 16, 2021, the States and UTs had distributed 66 million doses of “Covishield.” Furthermore, over 59 million doses had already been distributed to 72 countries.

Having mentioned the aforementioned facts, the Court noted, “That ‘Covishield’ is a vaccine to rebut Coronavirus is now publicly recognized. A preliminary injunction instructing Serum Institute to withdraw the use of mark ‘Covishield’ for its vaccine will lead to confusion and disruption in the Vaccine domestic situations of the State.

In this case, an injunction will have far consequences that would extend beyond the parties to the lawsuit.” As a result, the balance of accessibility was found to be in favor of SII; which would be severely harmed if the injunction were granted against each other.

Conclusion

After cautious analysis of the facts, arguments, evidence, and established precedents on the matter; the Hon’ble Commercial Court in Pune came to the conclusion. The Court has demonstrated an exceptional grasp of the nuances of the concept of passing off. While hearing this case; the Appellate Court implemented great caution. It re-established the importance of the Classic Trinity Test in matters of passing off. Both directives are unquestionably valuable additions to the Indian trademark law literature.

[1] AIR 1998 SC 1297

[2] (1998) 4 SCC 577

[3] (2017) 5 SCC 262

[4] (2018) 9 SCC 183

[5] (1997) 4 SCC 201

[6] AIR 2001 SC 1952

[7] (1996) 5 SCC 714

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Hon’ble Supreme Court of India vides its judgment dated 23.03.2021 rendered in Small Scale Industrial Manufacturers Association Vs. Union of India; disposed of, a batch of Public Interest Litigation (PIL) Writ Petitions. Consequently, granting only limited relief of waiver of penal interest, interest on interest, penal charges, etc. during the moratorium period from 01.03.2020 to 31.08.2020 (6 months) to all the borrowers without limit & restrictions.

It rejected all other prayers of waiver of interest, further relief sector-wise, the extension of moratorium period, etc. on the ground that these nature of reliefs are in the nature of policy, which appropriate authorities, statutory bodies & govt. respectively are competent to decide & that they are not exigible to judicial review unless any legal questions are involved for the court to adjudicate.

Through this batch of judgments, the Hon’ble Supreme Court of India has once again emphasized the separation of power between the court & the govt.

It reiterated that the court has a domain limited to law & government remit is confined to the subject of policy. Hon’ble Supreme Court of India acknowledged the Govt. & authorities’ actions under the Epidemic Disease Act, 1897 & Disaster Management Act, 2005 & reposed faith on them that they will act appropriately in due discharge of their duties to deal, prevent & mitigate the Covid-19 effects.

While the Hon’ble Supreme Court of India was dealing with the party’s public interest claim; a unique individual petition was filed before it by one Advocate Sh. Biswajit Das for a private client seeking a declaration that interest levy under loan contract is not enforceable by law. Moreover, that levy of interest during the moratorium period cannot be mandated by RBI in the exercise of its power under the Banking Regulation Act, 1949. Taking note of the substance of this new & unique legal argument, the Hon’ble Supreme Court of India advised the Petitioner to approach the Hon’ble High Court under Article 226 for its just adjudication.

Claiming that this proposition involves a unique jurisprudential concept, which he coined as Black-Hole Doctrine, Sh. B. Das filed a Writ Petition in Jharkhand High Court, which is now scheduled for onward hearing on 13.07.2021.

It is being argued by Sh. B. Das that RBI has no power to authorize banks & financial institutions to levy interest on borrowers de horse constitutional principles & law of contracts RBI Covid-19 package circular dated 27.03.2020 & 23.03.2020 transgress its power under Banking Regulation Act, 1949 in breach of Article 300A of the Constitution of India.

Sh. B.Das further stated that the issue involved in this petition is not an issue of waiver/charity but an issue of law involving lenders entitlement & borrowers liability under their respective loan contract/agreement.

He stated that State cannot wedge a divide amongst its population putting one class at a higher pedestal over the other in the name of effective management of disaster. Such a classification has to specifically come through legislative mandate & not through executive route this violates the constitutional concept of governance.

This provides a ray of hope to the entrepreneurs, commercial entities, etc. of India, who are grappling with Covid-19 infused operational & financial distress, to wrest some respite from their already distressed & precarious operable position.

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When one brings into mind the relevancy of Maneka Gandhi v. Union of India, one essentially and by all means, brings into consideration the basic principles pertaining to natural justice which have been enshrined in the Indian Constitution via the support of fundamental rights that have been guaranteed under Article 21 and 14 respectively. Having mentioned the same, post the period of Emergency, this case was considered to be one of the most vital judgements that have so far been passed by the Hon’ble Supreme Court, that have held a special role in shedding light on the liberal tendencies that have gone through a major shift towards ensuring the protection of personal liberty. 

Ever since the passing of this landmark judgement, the Apex Court ensured to display tremendous amount of diligence towards the sheer protection and enforcement of fundamental rights. In addition to the same, this pioneering case also held an extravagant role in overturning and overruling the precedent that had been brought about in the case of A. K. Gopalan v. State of Madras.

A FACTUAL SUMMARY OF THE CASE

The petitioner in the mentioned case was a journalist whose passport had been seized under Section 10(3)(c) of the Passport Act, 1967 wherein the said Act as per the stipulated provision empowers the authorities to seize the passport of the individual, with respect to the sovereignty and the integrity of India. It is however imperative to mention that the reasons pertaining to such an impoundment be communicated with the affected parties, wherein an exception can be made by taking into consideration the interests of the general public. After questioning the reasons relating to the confiscation of her Passport, the Ministry of External Affairs repudiated their intentions to produce any reason, by claiming that the same was being done “in the interests of the general public.” 

In pursuance to the said event, a writ petition under the applicability of Article 32 of the Indian Constitution was filed by the petitioner before the Hon’ble Supreme Court wherein the claims related to the violation and the need for the enforcement of fundamental rights with respect to the arbitrary action of the mentioned authorities was brought into light, by taking into regard the applicability of Articles 14, with further amendments involving the applicability of Article 21 (right to life and personal liberty), Article 19(1)(a) emphasizing on the right to freedom of speech and expression, and most importantly, Article 19(1)(g) of the Indian Constitution, that concentrates upon the right to freedom of movement. 

RELEVANT ISSUES OF THE CASE

It would be pertinent to mention the various issues that were contemplated in the present case, which can be elucidated under the following:

• Whether there is any nexus with respect to the rights that have been guaranteed under Articles 14, 19 and 21 of the Indian Constitution? 
• Whether there is any scope related to the “procedure established by law?”
• Whether the concept of Fundamental Rights can be regarded as conditional or absolute or whether there is a necessity to determine the same that has been provided to citizens by the Indian Constitution?
• Whether Section 10(3)(c) of the Passport Act, 1967 can be witnessed in violation of Fundamental Rights and if it fulfills the same, whether such a legislation can be regarded as a concrete law?
• Whether there has been a contravention of the principles pertaining to natural justice in the Impugned Order of the Regional Passport Officer as per the provision stipulated under the mentioned Act? 
• Whether there has been a protection of the “right to travel abroad” under Article 21 of the Indian Constitution? 

A DELIBERATION ON THE CONTENTIONS THAT WERE RAISED IN THIS CASE

CONTENTIONS THAT WERE RAISED BY THE PETITIONER

Several contentions were raised by the Petitioner with regard to the facts and the circumstances of the present case, which can be noted under the following:

• That the Central Government, by all means, acted in sheer violation of Article 21 of the Indian Constitution wherein the petitioner was deprived of the basic opportunity to be heard. 
• That the aspect pertaining to the “right to travel abroad” can be considered as a derivative of the right known as the right to personal liberty and no citizen, under any means can be deprived of the said right, except according to procedure established by law. On the other hand, while the Passports Act, 1967 has not prescribed a particular method for confiscating or revoking the passport of its rightful holder, such actions by the mentioned authorities are arbitrary and reasonable. 
• It would be imperative to mention that any procedure that has been established by law, must act in compliance with the requisite principles of natural justice. 
• An essential principle pertaining to the principles of natural justice, is ‘’Audi Alteram Partem,’’ wherein every citizen is given the chance to be heard, which was however not granted to the Petitioner. 
• Furthermore, the postulated provisions of Articles 14, 19 and 21 of the Indian Constitution must be essentially read in synchronization wherein a conglomerated reading of the same will give effect to the spirit of not just the makers of the Indian Constitution, but also the extraordinary legal document, known as the Constitution of India. 
• In furtherance to the same, with respect to the impugned order relating to the impoundment of Passport on the 4th of July, 1977, it was contended that the respondent had not just violated the Petitioner’s right to freedom of movement, but had also encroached on the petitioner’s right(s) to freedom of speech and expression, her right to life and personal liberty alongside the right to travel abroad. 

CONTENTIONS THAT WERE RAISED BY THE RESPONDENT

The contentions that were raised by the respondent can be elaborated under the following:

• The respondent after reiterating the principles specified in the case of A. K. Gopalan v. State of Madras, contended that the concept of law with reference to Article 21 of the Indian Constitution cannot be comprehended by taking into regard the principles related to natural justice. 
• Furthermore, the Attorney General of India stated that the right to travel abroad, was never in actuality, covered under the Clauses postulated under Article 19(1) of the Indian Constitution, and therefore, Article 19 can be regarded to be independent, thereby proving the reasonable nature of the actions undertaken by the Central Government. 
• In addition to the same, it was further contended by the respondent that the principles related to natural justice are ambiguous and vague. Therefore, the Indian Constitution should avoid reading such ambiguous and vague provisions as a part of the same.
• Having stated the same, it was further contended that the ambit of Article 21 of the Indian Constitution is in general, very wide that is inclusive of provisions known as Article 14 and 21. However, any particular law can be regarded to be unconstitutional with reference to Article 21, when it is witnessed to directly violate Articles 14 and 19. 
• Their reliance on Article 21 of the Indian Constitution must be noted wherein it was stated that the language containing “procedure established by law” need not pass the constitutional test of reasonability, because of which the same should not be seen in conformity with Articles 14 and 19 of the Indian Constitution.
• That the sheer spirit and the mind of the framers must be respected and protected, wherein the Constitutional makers while drafting the Indian Constitution had debated at various lengths on the American pattern relating to the “due process of law” and the British procedure that has been established by law. Therefore, it was stipulated that the conspicuous absence of such a due process of law with respect to the Constitutional provisions is seen to reflect the framers and the mind of the Indian Constitution. 

A BRIEF OVERVIEW OF THE JUDGEMENT: A CRITICAL ANALYSIS

This landmark judgement that was delivered on the 25th of January, 1978 changed the landscape of the Indian Constitution, as it not just expanded the scope of Article 21 of the Indian Constitution, but also went back to making India a true, welfare state as has been promised as per the Preamble of the Indian Constitution. 

The major views and findings of the Hon’ble Court can be elaborated under the following:

• It was held by the Hon’ble Court that with reference to the phrase that was utilized for the interpretation pertaining to Article 21 of the Indian Constitution that is in context to “procedure established by law” in place of “due process of law,” it was held that it is imperative that the procedure be free from any kind of irrationality and arbitrariness. 
• Furthermore, the Hon’ble Court also held that the very scope of personal liberty must not be construed in a strict and narrow sense, wherein the same should be understood in a liberal and broader sense. In totality, Article 21 was given a wider meaning, which was added on by the insistence of the Hon’ble Court towards obligating future courts to expand the mentioned horizons as has been identified under Article 21 to ensure the coverage of all Fundamental Rights instead of construing it in a narrow sense. 
• That being brought under one’s attention, the Hon’ble Supreme Court also overruled the precedent that had been set in the case of A.K. Gopalan v. State of Madras by emphasizing that there should, by all means be a unique dynamic of the provisions known as Article 14, 19 and 21 of the Indian Constitution, wherein it is pertinent that every law passes the test of the mentioned provisions. 
• Furthermore, it was also held that the provision as has been postulated under Section 10(3)(c) of the Passport Act, 1967 should not be violative of Article 21 of the Indian Constitution or Articles 19(1)(a) and 19(1)(g) for that matter and also later went on to clarify that the aforementioned provision had not contradicted Article 14 of the Indian Constitution. Given the mentioned provision, provides for an adequate opportunity to be heard, the Hon’ble Court therefore rejected the contentions raised by the Petitioner that the phrase, that is “in the interests of the general public” is not vague. 
• In furtherance to the aforementioned view, the Hon’ble Supreme Court however contended and held that Section 10(3)(c) and 10(5) is essentially an administrative order, and is henceforth open to challenge, with respect to the order being of a nature that is male fide, culminating to the denial of natural justice, and is not just unreasonable but is also ultra vires of the Indian Constitution. 
• The Apex Court, while reiterating the principles that were laid out in the case of Satwant Singh Sawhney v. D. Ramarathnam, observed that while taking into regard the ambit of personal liberty, one must also consider the right to travel abroad, which must act in synchronization with the said concept. All in all, under no conditions can an individual be deprived of their rights, except in accordance to a procedure that has been established by law. The confiscation or the revocation of the petitioner’s passport is violative of Article 21 of the Indian Constitution, wherein the said grounds being arbitrary and unchallenged, is also violative of Article 14 of the Constitution of India.
• It would be crucial to mention that in context to Section 10(3)(c) of the Passports Act, 1967 that is in circumstances where the State finds it imperative to confiscate the passport or do any particular activity that acts against the interests of the integrity or the sovereignty of the nation, its friendly relations with other countries, its security or with regard to the interests of the general public, it is important for the respective authorities to provide or record the adequate reasons in writing, and also furnish a copy of that particular record to the passport holder. 

THE REPERCUSSIONS OF THE MANEKA GANDHI JUDGEMENT: CONCLUDING REMARKS

All in all, it must be acknowledged that few judgements that have been passed in the Indian Legal History, that have had a life-changing effect as the Maneka Gandhi judgement has had so far. Apart from being such a well-written and balanced judgement, it also greatly established the interlinking of Articles 14, 15 and 19 of the Indian Constitution, which particularly specified that whilst it is of sole importance to secure the Fundamental Rights of every citizen, it must also be made sure that the procedure is not irrational or arbitrary. 

After the passing of the mentioned judgement, the Hon’ble Supreme Court restored its position of being looked at as the watchdog of democracy and also showed its intentions of safeguarding the thought processes of the Constitution makers. In fact, what makes this judgement all the more appealing is the aspect provided by a majority of judges wherein it was stipulated that for any legislation or provision to be declared as bonafide, reasonable and just, it is pertinent that the said law or provision be devoid of any kind of arbitrariness. Having mentioned the same, the greatest repercussion of this judgement is that today’s unanswered questions and problems of the Indian Parliament have been solved with lucid attention, in consideration to the interpretation pertaining to Article 21 of the Indian Constitution that has been derived in the mentioned case.

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“Hoping no sedition case against channel showing dead body being thrown into river” – Justice Chandrachud

While hearing a suo moto COVID case, Justice DY Chandrachud made a remark regarding news channel showing dead body of a COVID patient being thrown into river body and asked whether any sedition case has been filed against the news channels or not.

Justice DY Chandrachud made this sarcastic statement while taking a dig at the number of sedition cases being registered against media.

The bench was hearing a suo moto COVID wherein the amicus curiae, Senior Advocate Meenakshi Arora submitted that guidelines must be formulated for ensuring dignified treatment and handling of dead bodies.

After considering this suo moto COVID case, the bench took up petitions which had been filed by two Telugu news channels namely, TV5 and ABN Andhra-Jyoti, against the sedition case which had been registered by Andhra Pradesh police.

The Solicitor General reminded the bench about its order delivered in the month of April, 2021 wherein it directed that contempt cases should be taken up against the police officers who clampdown on citizens’ SOS calls on social media who were seeking COVID essentials.

The Apex Court stayed any sort of coercive action against the two news channels and observed that its high time that limit of sedition be defined. The bench further observed that there is a need to define the scope of offences prescribed under Sections 124A and 153A, which are sedition and promotion of communal hatred, respectively.

The post The Supreme Court’s Take on Charges against Media for Sedition appeared first on LexForti .

The bench comprising of Chief Justice of India made an observation that examination of accused under Section 313 is not a mere procedural formality, rather works on the principle of fairness and court should take due care and caution while examining accused and recording statements.

The bench stated that the trial court is under an obligation to carry on its duty effectively and examine the accused fairly, while incorporating Section 313 of CrPC.

In the instant case, the bench was hearing an appeal filed by the accused who were convicted under Sections 304B and 306 of Indian Penal Code. The appellants had been convicted by the trial court and were sentenced to undergo rigorous imprisonment for seven and five years, respectively. The apex court upheld the trial court’s judgment.

The bench expressed its concern towards casual behaviour of trial courts while examining accused and observed that Section 313 embodies valuable principle of audi alteram partem and thus the accused should be given an opportunity to explain the incriminating material which had appeared against him.

The bench also discussed about Section 232 of CrPC and observed that if upon recording the evidence placed by prosecution, examining the accused, and hearing the prosecution as well as defence side, the judge considers that evidence is not sufficient to hold the guilt of accused, the judge shall be duty bound to pass an order of acquittal.

The above observations were made by the Supreme Court in the case of Satbir Singh v State of Haryana.

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