Recent Developments – The Law Blog

The Unconstitutionality of Evil

October 11, 2017October 11, 2017Posted in Critical Analysis, Indian Law, Recent DevelopmentsTagged Constitutional Validity, Liquor banLeave a comment

The Bihar government, with a view to completely ban sale and consumption of alcohol in the state, passed the Bihar Prohibition and Excise Act, 2016. The new law was put in force from 2^nd October 2016 with intent “to enforce, implement and promote complete Prohibition of liquor and intoxicants in the territory of the State of Bihar.”

There was a lot of outrage when the Bihar government first came out with a notification in the month of April of the last year which sought to ban the sale of alcohol in the state. However, the Patna High Court struck down this notification by terming it as “draconian and unreasonable.” Thereafter, the state government came out with the present law. However, this new act attracted a lot of controversies, not due to its alcohol ban, but due to some stringent penalty sections enshrined in it. One such section is section 32(3) of the Act which presumes guilt against all the members of the family.

It goes as follows: “An offence is said to have been committed inside any house occupied by a family where any intoxicant or liquor is found or consumed, it shall be presumed that all the adults above the age of eighteen occupying or working at the place or in the premises or the members of the family above eighteen years of age occupying the house are having the knowledge of commission of such an offence, unless proved otherwise.”

This section presumes guilt against all the adult members of a family and shifts the burden on them to prove that they weren’t aware of the alleged fact. The act presumes that adult family members know or ought to know what the other members of a family are doing. This act does not limit itself just to a family but also extends to landlords who must make sure that their tenants don’t possess and consume alcohol within the building or land. In all such circumstances, as per section 30 of the act, a punishment of at least 10 years of imprisonment and a fine of at least one lakh rupees has been prescribed. This Act falls foul of many provisions of constitution and principles of natural justice.

Presumption of innocence means that a person is considered innocent until proven guilty by the court of law. This principle has been the cornerstone of the legal world, especially in criminal law. This principle puts the onus on the prosecution to prove the guilt of an accused. But in section 32(3) it has been specifically stated that the accused must prove that he was not liable for the crime he committed. This goes against the basic principles of criminal jurisprudence as it makes every adult member of a family seem guilty, even though they may be in fact innocent.

Section 32(3) of the Bihar prohibition act reflects gross unreasonableness and arbitrariness on the part of the government. Putting the burden of proof on the family members is unreasonable as they don’t have enough resources and apparatus which the state has at its disposable. This provision may also lead to filling of false and malicious complaints due to family feuds. As per section 76 of the said act, all the offences are cognizable and non-bailable. Such harsh provisions in the law will lead to some powerful taking its advantage at the cost of poor and uneducated. For example, if a person X, out of his feud with Y, places alcohol bottles into Y’s house without Y’s and his family members knowledge, and then X informs police that Y has alcohol in his possession, the police will prima facie assume that Y and his family members concealed the alcohol in the house, and subsequently arrest them. The critical points here will be: whether Y and his family would be able to prove that they had no knowledge that alcohol was kept in their house. Will the judges believe on their oral testimonies? How will they be able to prove, being incarcerated and without any apparatus, that it was X who kept the bottles in their house? This Act will further impair a person’s dignity and reputation in the society.

The apex court in the case of Francis Coralie Mullin v. The Administrator, Union Territory of Delhi has expanded the realm of Article 21 to include human dignity, and all that is associated with it. It held that every act which impairs human dignity will constitute “deprivation pro tanto” of Article 21. Detaining people for no fault of theirs is an impairment to their right to live with dignity and would constitute an inroad into Article 21. And, the law which authorises such a procedure leading to degrading treatment should be forthrightly characterised as unconstitutional.

Thus section 32(3) of the Bihar Prohibition and Excise Act, 2016 doesn’t pass the muster against the bulwarks of Article 14 and Article 21 of the constitution and hence are illegal. We have already seen some perverse outcomes due to this law. This law has put forth the concept of “collective guilt” which could, if set as a precedent, be used to justify violence against groups and minority communities.

ABOUT THE AUTHOR

PRATIK PRAKASH DIXIT

Law Student pursuing BA LLB (Hons) at NLSIU, Bangalore. Interested in social and political issues.

An overview of the Admiralty Bill, 2016

June 13, 2017June 11, 2017Posted in Recent DevelopmentsTagged Admiralty Bill, MaritimeLeave a comment

India with a coastline of about 7500 km and massive interest in the Indian Ocean as well as the Bay of Bengal is rightfully tagged as a “seafaring nation”. Thus, it is directly responsible to dispense justice over waters under its control. Admiralty law or maritime law is a code of both domestic and private international law that covers all contracts, injuries, torts or offences over navigable waters. After independence, India’s maritime sector experienced phenomenal progress with 12 major and 205 minor ports [1]. In contrast, legal system maintained status quo by subscribing to age old traditional British statutes which limited the maritime jurisdiction to only three Indian High courts viz. Bombay, Calcutta and Madras (three major ports during British regime). After Supreme Court judgement in M.V. Elisabeth and others Vs. Harwan Investment and Trading Pvt. Ltd. and law commission 151^st Report matter attracted widespread attention. To solve the problem of conflicting maritime jurisdiction, procedural delays and to clear the ambiguity over maritime laws, Parliament introduced ‘The Admiralty Bill, 2005’ which subsequently lapsed after being termed as regressive piece of legislation.

Bright rays of hope have rekindled with the passing of ‘The Admiralty (Jurisdiction & Settlement of Maritime claims) Bill, 2016’ in the Lok Sabha. Preamble of the bill gives a clear idea about its far reaching ramification. This bill seeks to consolidate the existing laws on civil matters of admiralty jurisdiction of courts, admiralty proceedings on maritime claims, and arrest of ships [2].

Under British enactments, admiralty jurisdiction is conferred only to those High Courts which were established under the Letters Patent, 1865. This composition will be changed after the enactment of ‘The Admiralty Bill, 2016’. Jurisdiction will vest in the High Courts of Coastal states and shall be exercisable up to territorial waters which can be extended via central govt. notification up to the limit as defined in sec 2 of act of 1976 [3]. This will not only bring efficiency but will also lead to speedy disposal of maritime disputes.

The High Courts are empowered to adjudicate maritime claims arising out of disputes regarding ownership of vessel; mortgage, sale, damage, construction, repair, conversion of the vessel. Vessel is defined as any ship, boat or sailing vessel which may or may not be mechanically propelled. Highest priority is given to maritime claims in all admiralty proceedings followed by other claims as mentioned in the bill. Jurisdiction can be exercised In personam and in rem as the case may be. Appeals will lie to the division bench of High court.

This bill seeks to repeal five archaic admiralty laws on civil matters viz. The Admiralty Court Act, 1861; the Colonial Courts of Admiralty Act, 1890; the Colonial Courts of Admiralty(India) Act, 1891 and the provisions of Letters Patent, 1865 in so far as they apply to the admiralty jurisdiction of Bombay, Calcutta and Madras High Court [4].

Hence, Maritime and legal fraternity wait finally ended after seventy years of independence when Parliament exercised its exclusive power in concerned area. Indeed, this bill will cater to long felt requirement of comprehensive admiralty law. By simplification of procedure, maritime disputes, which often termed as costly affair can be disposed off quickly and efficiently.

[1] http://indianexpress.com/article/india/maritime-admiralty-bill-passed-by-lok-sabha/

[2]http://www.prsindia.org/billtrack/the-admiralty-jurisdiction-and-settlement-of-maritime-claims-bill-2016-4471/

[3] section 3 of The Admiralty ( jurisdiction & settlement of maritime claims ) Bill, 2016. Act of 1976 refers to ‘The Territorial Waters, Continental Shelf, Exclusive Zone and Other Maritime Zones Act, 1976’

[4] section 17 of The Admiralty ( jurisdiction & settlement of maritime claims ) Bill, 2016

ABOUT THE AUTHOR

DEEPIKA SANGWAN

Deepika Sangwan is a second-year student at Army Institute of Law, Mohali. She is an Editor at college magazine ‘AILITE 2016-2017’. She believes that writing gives clarity & depth to one’s thoughts. Apart from decorating facts with reasoning, cycling is her favourite pass time.

Entry of Whatsapp into the legal world

May 23, 2017May 23, 2017Posted in Recent DevelopmentsTagged Notice, WhatsappLeave a comment

Gone are the days when judicial proceedings will wait for you to be at home so that service of summons can be completed. In the world of connectivity if you are found evasive or absent from your available address then the judicial team can serve you summons on your virtual address ie. your whatsapp no. or email id. Hearing the case of TATA SONS LTD & ORS V. JOHN DOE(S) & ORS , Delhi High Court allowed the petitioners to serve summons via whatsapp and Bombay High court also accepted served intimation via whatsapp as service of notice.

Riding the liberal route, Justice Gautam Patel observed , “It cannot be that our rules and procedure are either so ancient or so rigid that without some antiquated formal service mode through a bailiff or even by beat of drum or pattaki, a party cannot be said to have been properly served. The purpose of service is put the other party to notice and to give him a copy of the papers. The mode is surely irrelevant. Defendants who avoid and evade service by regular modes cannot be permitted to take advantage of that evasion.”

Along with 200 million whatsapp users in India, legal world has also become techno-friendly. Apart from expecting some best wishes and funny jokes from dear ones, one can also expect court notice on whatsapp. That reminds me of one more whatsapp connection with legal world ie. admissibility of whatsapp messages as a legal evidence under section 65(B) of Indian Evidence Act. So, while defending or establishing your case in court of law, you can submit a whatsapp message as evidence provided it conforms following requirements:

The message is not hearsay and it was received by you.
The phone or system has not been tampered with and has been in regular use.
The message was sent by the person alleged to have sent it.
The sender intended to send it.

Thereby, your whatsapp message will be subject to all the tests as documents otherwise admissible are subjected to. It goes without any doubt that whatsapp has emerged out to be a king of all other social networking platforms. So, one shall not underestimate its power. It can either make the case or break it. Whatsapp controversy also covered group administrator in its range. As technology is making rapid strides and increasing its bandwidth per second, law in this field is still vague and require some time to cover the grey area. That’s why circulation of offensive content in a whatsapp group can make admin liable in absence of immediate actions.

Indeed 21^st century is an era of whatsapp and it has marked its entry in the legal world. With its increasing involvement in day to day life, its legal connection is irrevocable. One cannot guess about the future surprises that technology has reserved for us. So, time has come that this technology be utilised by people of land in proper way in order to evade the slap of law of land.

ABOUT THE AUTHOR

DEEPIKA SANGWAN

Intersection of NJAC and Separation of Power

January 10, 2017January 10, 2017Posted in Constitution of India, Critical Analysis, Recent DevelopmentsTagged NJAC, Separation of powersLeave a comment

“The basic premise of the Constitution was the Separation of Powers and a system of checks and balances because man was perceived as a fallen creature and would always yearn for more power.” – Roy Moore

The early theorist Montesquieu on the doctrine of separation of powers, said:

“When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, they execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of everything, were the same man, or the same body, whether of the nobles of people, to exercise those three powers, that of exacting laws, that of executing the public resolution, and that of trying the causes of individuals.”

Brandeis J. while laying accentuation on the principle of separation of powers said that the inspiration driving the separation of powers precept is not to propel viability in the association yet rather to hinder the act of optional power. He furthermore highlights that its inspiration is not to keep up a key separation from grinding among various organs of the state by keeping them segregated yet to shield people from autocracy by technique for certain contact in light of exacerbation of strengths. It is to gap administration against itself by making unmistakable concentrations of drive so they could keep each other from undermining oppression.

The National Judicial Appointments Commission (NJAC) tried to blur this line of separation of power between legislature and judiciary. It was a body entrusted with delegating judges to the higher Judiciary in India. Article 124 of the Constitution was altered through the 99th Amendment to mirror the adjustment in the arrangement of arrangements from the collegium framework, in which an assortment of judges would be counselled by the President to designate the judges, with the judiciary’s feeling being last. The body of the NJAC incorporates as the Chief Justice of India, the two senior-most judges of the Supreme Court, the Law Minister and two “prominent people”. A sub-council was further constituted to designate the “prominent people”. The synthesis of the sub-council incorporates the Prime Minister, the Chief Justice, and the Leader of the Opposition.

A historic judgement by the Supreme Court has held the National Judicial Appointments Commission (NJAC) Act 2014 unconstitutional. Article 13 of Indian Constitution announces that all “laws” that is conflicting with or in criticism of any of the fundamental rights is invalid and void. This force of “legal survey” is given on the Supreme Court (Article 32) and the high courts (Article 226) that can announce a law unlawful and invalid. The Constitution all in all verifiably focusedon that “the Supreme Court of India is the overseer of Indian Constitution”. Governments have tried to form the NJAC in order to extend the presence of the executive in the judiciary. The Indian democracy values Separation of Power and it cannot be overruled in any circumstances. When the judiciary doesn’t interfere in choosing executive appointments then the same is expected from the executive. The Supreme Court is the custodian of the Fundamental Rights of the citizens; it needs to have full discretion on such matters.

However, there is need to bring more transparency and accountability in the collegium system. In the striking down of the Constitution’s 99th Amendment furthermore the NJAC Act by holding the same as being violative of the fundamental structure of the Constitution, the Supreme Court has viably re-established the autonomy of the higher legal. The decision has demonstrated that the NJAC can’t supersede the privilege of the higher legal to decipher the laws. This additionally re-builds up that demonstrations of the governing body, right now overpowered by the numerical quality of the decision gathering, can be considered responsible in courtrooms.

“The judiciary and the press must be allowed their inviolate space and protected from increasing disdain and intolerance of the other pillars of the Constitution.”- Anonymous

Recently, in Madras Bar Association vs Union of India (2014 (10) SCC 1), the Supreme Court quoted the following excerpt from the Privy Council decision in Hinds vs The Queen, 1976 All ER (1) 353:

“What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose members… a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.”

The lawmaker class of the decision party depicts the judgement as oppression of un-elected over chosen. Despite the fact that they have their right to speak freely which is a principal right, it is not the route pushing ahead. Presently, the parliament ought to locate all conceivable approaches to work with the legal framework subject to the sway of legal and also parliament. In a constitution where “Equivalent insurance by law and Equal security of Law” (Article 14) is the establishing guideline, the straightforwardness in Judicial arrangements is an unquestionable requirement.

To conclude the words of Dr. A.S Anand, CJI stands true,

“…the Supreme Court is the custodian of the Indian Constitution and exercises judicial control over the acts of both legislature and the executive.”

ABOUT THE AUTHOR

PRERNA DEEP

Prerna Deep is currently a first-year student at Campus Law Centre, University of Delhi. She has completed English Honours from Miranda House, DU. Literature gave this forever bibliophile the wings to follow her heart and Law gave her the strength to believe that she too can change the world. She considers receiving an award for her essay on ‘Women and Law in India’ from Mr Ram Jethmalani a treasure. When not writing she’s probably binge-watching sitcoms. She believes nothing describes her best than Virginia Woolf’s words:
“I have a deeply hidden and inarticulate desire for something beyond the daily life.”

Delhi as a statehood: A legal tussle between center and state in Delhi

December 9, 2016Posted in Others, Recent DevelopmentsTagged DelhiLeave a comment

This article has been written by Miracline Paul Susi. Miracline Paul Susi.T is a 4th-year law student at School of Law, SASTRA University.

The 69th Constitutional Amendment Act passed in 1991 inserted Article 239AA which provides for a special status to Delhi. According to 239AA the Union Territory of Delhi is renamed the National Capital Territory (NCT) of Delhi. As per Article 239 of the Constitution, every Union territory is to be administered by the president acting through an administrator appointed by him. In the case of Delhi, by virtue of Article 239AA of the Constitution, the administrator appointed under Article 239 is designated as the Lieutenant Governor. This article also creates a legislature assembly for the National Capital Territory of Delhi unlike other union territories.

The legislative assembly is vested with the power to make laws for the whole or part of the National Capital Territory with respect to any of the matters enumerated in the state list or the concurrent list except matters with respect to the entries 1, 2 and 18 of the list[1]. But this does not derogate the parliament to make laws with respect to any matter for the Union Territory or any part thereof[2]. It can be seen that apart from the exception for the Legislative Assembly to make laws under entries 1, 2 and 18, the language used in Article 239AA (4), that pertains to Delhi, reads identical to Article 163 (1), that pertains to states.

From the above rationale it is understandable that status of Delhi is neither analogous with a Union territory nor a state as such. The NCT status allows Delhi to continue to be a Union territory provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man[3].The Supreme Court in NDMC v. State of Punjab[4] observed that Delhi is an evolving Union Territory with trappings of a State. This places Delhi in a peculiar position, raising several constitutional conundrums having little precedent.

One such recent issue is the scuffle for constitutional exercise of power over the appointment of chief secretary in Delhi. Art 239AA(4) of Indian Constitution says that the Chief Minister at the head has to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws. On one side it can be argued that the Lieutenant Governor is bound by the aid and advice of the Council of Ministers. By placing reliance upon U.N.R. Rao v. Indira Gandhi[5], S.R. Chaudhuri v. State of Punjab[6] and B.P. Singhal v. Union of India[7] it can be argued that Article 239AA a Cabinet form of Government has been put in place for Delhi wherein the Council of Ministers along with the Chief Minister are collectively responsible to the people of Delhi and consequently the Lt. Governor is bound by the aid and advise of the Council of Ministers headed by the Chief Minister. Also from Samsher Singh case[8], it can be said that the except in spheres where the Lieutenant Governor is required by or under the Constitution to exercise his functions in his discretion he must act in accordance with the aid and advice of the council of ministers. The discretion with respect to lieutenant governor arises only with matters contained in Proviso to Art.239 AA (4) of Indian Constitution. But the Delhi High Court made a different observation recently and held that Delhi continues to be a Union Territory, and that the Lt. Governor of Delhi is not bound to act only on the “aid and advice” of the Delhi Legislative Assembly.

The court has also held that,

“It is mandatory under the constitutional scheme to communicate the decision of the Council of Ministers to the Lt. Governor even in relation to the matters in respect of which power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under clause (3)(a) of Article 239AA of the Constitution and an order thereon can be issued only where the Lt. Governor does not take a different view and no reference to the Central Government is required in terms of the proviso to clause (4) of Article 239AA of the Constitution read with Chapter V of the Transaction of Business of the Government of NCT of Delhi Rules, 1993[9]”.

A defining feature of a federal democracy is division of power. It is this principle that makes the exercise of power a remit of the elected head and not the nominal heads (president, governors/LGs). Nominal heads have varying degrees of discretionary power (more in quasi states, less in full states), but those are to be exercised with restraint and with an understanding of how the wheels of legislative democracy turn[10]. Therefore it is necessary for this situation to be looked upon and an effective amendment to this provision has to be brought for the proper balance of the centre and State in NCT of Delhi.

[1] Art. 239AA(3)(a), 239AA(4) of Indian Constitution

[2] Art. 239AA(3)(b) of Indian Constitution

[3] The Constitution (Sixty-Ninth Amendment) Act, 1991: Statement of Objects and Reasons.

[4] (1997) 7 SCC 339

[5] (1971) 2 SCC 63

[6] (2001) 7 SCC 126

[7] (2010) 6 SCC 331,

[8] (1974) 2 SCC 831

[9] Bar and Bench, The New face of Journalism in India, Delhi High Court reject’s AAP claims versus Lt. Governor, August 2016 viewed at http://barandbench.com/delhi-high-court-rejects-aap-claim-versus-lt-governor/

[10] Rajshree Chandra, The ‘Jung’ Between Modi and Kejriwal and the Travails of a Quasi State, August 2016.

The December book bucket

First Impressions!

November 11, 2016November 11, 2016Posted in Corporate and Finance, Critical Analysis, Recent DevelopmentsTagged Cashless economy, DemonetizationLeave a comment

This article has been written by Amrit K.N. Pradhan. Amrit is a student at Rajiv Gandhi National University of Law, Patiala.

I was only able to open my brains out after getting on track to appear for my CLAT (2015) examinations. It involved multi-various way of preparations. Mine was largely based on getting hooked-on to The Hindu and two dozen of Non-fiction books. Getting into a National Law University was next step on the ladder.

Divulging views are like an alarm clock; they take you out of your ‘comfort zone’. At the same time, it also offers you the option of waking up to the world or setting it on snooze mode. Similar is the strands of views of people on the initiative of ‘Demonetization’ lead by PM Modi to dismiss Rs.500(introduced in 1997) and Rs. 1000 (introduced in 2000) as legal tender. In its place, new form of Rs. 500 and Rs. 2000 notes will be issued as legal tender.

Initially, there will surely be hindrances in the economy in the ‘very short-term’ as duly acknowledged by the PM. But short-term pain will also result in long-term gain for the Indian economy.

The quirky press conference addressed by PM Modi was out-of-the-blue. It was ‘nothing like anything’ of the previous PR events organized under his helm at the Race Course Road. This major ‘surprise’ was, however, an impressive way of starting his helm at the newly named Lok Kalyan Marg.

It caught majority of public off-guard and set them on a whirlwind late-night emergency tour across the ATMs till late into the morning. It also set cat-among-the-pigeons of bullion traders in the informal market (similar would be the case of diamond traders in Surat who do their daily deals majorly in hard cash form.), informal securities market (dabba traders), our nearby kirana stores among others. The I-T Department was also quick on its feet by raiding these informal ‘black money’ handlers into the early hours of next morning (Nov.9).

This step surely will prima facie in the short-term take out wipe out ‘black-money’ of the economy for a temporary period. Other major benefits to be accrued of such a major ‘brave policy’ initiative is mentioned ahead.

Economic Front

The palpable change which has occurred with the change in regime at the Centre is in the ‘visibility quotient’ of Leader of the fastest major economy in the world. Remember the Madison Square Garden event, a first of many International diasporic events organized to strike a chord with the Indians residing abroad. Not only strike a chord, but also hope they would return to avail the ‘transforming era’ in the country and ultimately serve their motherland.

This ‘Demonetisation’ surprise was his eccentric way of trying to turn black money into white. Not only black money into white, to help the Indian economy reach its full potential when private investment is at an all-time low since the 1991 Reforms. The Government however commendably has plugged in this gap by increasing its role in the market by way of public investment.

The inability of banks to advance loans to the private sector due to previous advances turning bad (known as ‘Non-Profitable Assets.) has been a major clog in attracting private investment.

Public investment, however, has a limited scope in the future. Limited scope due to the Centre’s aim of maintaining a 3 per cent Current Account Deficit (CAD = value of Exports – value of Imports into the country.) in near future. The latest statistics of the Reserve Bank of India (RBI) show a positive picture and room for the government to pump in more investment in the economy. In April-June quarter of FY17, India’s CAD was0.1 per cent in deficitcompared to 1.2 per cent in the last quarter of FY16.

Cashless Economy

Under the previous regime of RBI commander-in-chief Dr. Raghuram Rajan the policy of issuing license to payment banks was introduced. It allows users to deposit up to Rs. 1 lac in these accounts and earn interest. It however, does not allow these ‘payment banks’ to forward loans to customers.

This step was a complementary step in equation with Jan Dhan Yojana of the Central Government which allowed opening bank accounts for free for rural consumers.

‘Creative Destruction’ (Regards – Schumpeter)

The likes of PayTM, Mobikwik, Freecharge (now-owned by e-commerce major Snapdeal) will be delighted with the step (first signs visible of their delight when one of these companies acknowledged the PM through newspaper adverts). This ‘brave act’ by Modi will mean the ‘creative destruction’ of black money will be achieved (even if marginally) through the innovative e-wallets of various payment banks, albeit in the short-term. But surely setting up the platform to eradicate in the long-term.

It is calculated among anonymous sources that around Rs. 30,000 crores of daily trade occur in the economy in form of ‘black money’. In the long-term, it will need other transformations in the economy in form of easing accounting standards, tax structure (GST will surely help.) et al.

A good start, but a long way to go. (Meanwhile, Snapdeal has come up with an innovative way around COD or cash-on delivery users by offering ‘Wallet on Delivery’, wherein those customers availing this facility will pay through their wallet on delivery of their consignment.)

***

The November book bucket