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Application of the seniority convention in the appointment of the Chief Justice of India

The Supreme Court collegium deals with appointments of judges of the Supreme Court and the High Courts including the Chief Justices of the High Courts, though it has nothing to do with the appointment of the Chief Justice of India. This matter is solely handled by the Union Law Minister under the supervision and guidance of the Prime Minister and the President who acts on the advice of the Prime Minister in these matters and has no personal say in these kinds of executive issues that do not fall within his discretionary powers.

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As per the media reports, the Union Law Minister Mr. Ravi Shankar Prasad has written to Chief Justice of India Mr. S. A. Bobde a few days back seeking his view about the name of his successor. Mr. Bobde is set to retire on 23 April this year. As per the Memorandum of Procedure governing the appointments of judges of the Supreme Court and High Courts, an appointment to the office of the Chief Justice of India should be of the senior-most judge of the Supreme Court considered fit to hold the office. Justice N. V. Ramana, the senior-most puisne judge of the Supreme Court, is next in line to become the Chief Justice of India as per the criterion of seniority convention. However, the Constitution of India does not prescribe any specific criterion for appointment to the office of the Chief Justice of the Supreme Court or popularly known as the Chief Justice of India (CJI). Over the years a convention is well developed in the country under which the President of India appoints the senior-most judge of the Supreme Court the Chief Justice of India as per the provisions of Article 124(2) of the Constitution. If the President of India finds some doubts about the fitness of the senior-most judge, he may also consult with other judges of the Supreme Court and High Courts, as he may deem fit. The principal object behind the seniority convention seems to be based on the view that the collective interests of the judicial branch are better served by eliminating the exercise of the government’s discretionary power than by the search for the best man by the government which is the biggest litigant in the courts of law and the government should not be allowed to pick and choose the Chief Justice as per its own choice. This paper throws light on the various facets of the appointment process of the Chief Justice of India.

Under the existing constitutional practice, the incumbent Chief Justice of India recommends the name of his successor well in advance to the Union Law Minister who accordingly takes up the matter to the Prime Minister who advises the President of India to issue the formal warrant of appointment as per the constitutional provisions. The President of India is the appointing authority of the Supreme Court judges including the Chief Justice of India. Sometimes even the Union Law Minister can ask the outgoing Chief Justice of India to recommend the name of his successor. But this is not a mandatory condition prescribed in the Constitution and this is purely an empty formality or just a courtesy developed over the years where the central government takes the view of the Chief Justice of India about his successor. (M. Hidayatullah, My Own Boswell, 1981, at 217). The Union Cabinet and the Supreme Court collegium do not come into the picture in the appointment process of the Chief Justice of the Supreme Court of India. The Supreme Court collegium deals with appointments of judges of the Supreme Court and the High Courts including the Chief Justices of the High Courts and it has nothing to do with the appointment of the Chief Justice of India. This matter is solely handled by the Union Law Minister under the supervision and guidance of the Prime Minister and the President who acts on the advice of the Prime Minister in these matters and has no personal say in these kinds of executive issues that do not fall within his discretionary powers.

It is pertinent to mention that the central government has consistently followed the seniority convention in the appointment of the Chief Justice of India ever since the commencement of the Constitution. However, it is also heard that the first Prime Minister Pandit Nehru tried to supersede some senior judges during the initial years, but he could not be successful in his plans as all the judges of the Supreme Court had opposed such a move strongly. Once upon a time, he had also thought to appoint then Attorney-General M. C. Setalvad to the office of the Chief Justice of India, but the latter was found over-age. The First Law Commission led by then Attorney-General M. C. Setalvad, in its 14th report, had also indicated some deviations from the seniority convention but the central government did not accept such recommendation and it continued to appoint the senior-most judge the Chief Justice of India.

Unfortunately, Pandit Nehru’s daughter then Prime Minister Mrs. Indira Gandhi did not hesitate to breach this seniority convention two times. In 1973, after the famous Kesavananda Bharati judgment, she superseded three senior judges namely Justices Shelat, Hegde, and Grover, and appointed their junior colleague A. N. Ray as the Chief Justice of India. All three senior judges resigned in protest. This was referred to as the ‘first judicial supersession’ in the country. The fault of these judges was only that they had decided some important cases including the Kesavananda Bharti case against the government of Mrs. Indira Gandhi while Justice A. N. Ray was considered a pro-government judge who decided cases mostly in favor of the government. The judgments of the 13-judges Constitution Bench in the Fundamental Rights case were delivered on 24 April 1973. The majority judgments of 7 judges held that Parliament had no power to alter or destroy “the basic structure of the Constitution” while amending the Constitution under Article 368 of the Constitution. On the other hand, six other judges including Justice A. N. Ray held that there were no restrictions on Parliament’s power to amend the Constitution. Then Chief Justice of India Mr. S. M. Sikri, who led the majority judgment, was to retire the next day. Coming to know of the judgment in this case, the Indira Gandhi government disregarded the seniority of three judges who had been part of the majority-Justices J. M. Shelat, K. S. Hegde and A.N.Grover-and appointed Justice A. N. Ray, who was fourth in the seniority order, the Chief Justice of India. This supersession was intended to send a clear signal to the judges that an important judgment against the central government would imperil their prospects.

Hardly had the controversy of the first supersession died away, then Prime Minister Mrs. Indira Gandhi superseded Justice H. R. Khanna and appointed his junior colleague Justice M. H. Beg to the office of the Chief Justice of India in January 1977. Predictably, Justice Khanna resigned in protest. This was referred to as ‘the second judicial supersession’. These two back-to-back supersessions shook the Indian judiciary badly and demoralized the honest judges. Like Justice Ray, Justice Beg was also considered a committed judge who never displeased the government and always fell in line with the ideology and requirement of the ruling dispensation. It was perceived that Justice H. R. Khanna was superseded for delivering a courageous dissenting judgment in the infamous ADM, Jabalpur case. This time Chief Justice A. N. Ray had himself recommended the name of Justice M. H. Beg to the government. This is deeply condemnable that a Chief Justice himself helped the government to violate the independence of the judiciary and breached the seniority convention. Many prominent jurists such as Nani Palkhivala, Justice Chagla, and others had criticized these two judicial supersessions loudly. The appointment of Chief Justice Ray was also challenged by P. L. Lakhanpal in the High Court of Delhi but the High Court had dismissed the petition. Eminent jurist H. M. Seervai states that “the supersession of three judges in 1973, and Justice Khanna in 1977, was not only meant to punish them for their judgments, but was intended to get rid of them by wounding their self-respect, and forcing them to resign-and the attempt succeeded.”(H. M. Seervai, Constitutional Law of India, Vol. 3, 4th Edn. 1996, at p. 2816)

In 1977, Justice Y. V. Chandrachud had also faced some difficulties in his elevation to the office of the Chief Justice of India in 1978 when many Janata Party leaders, lawyers, and social activists had raised concerns and objections against his appointment. But then Union Law Minister Shanti Bhushan wisely handled the situation and saved his chief justiceship. The Janata Party leaders were unhappy with Justice Chandrachud’s judgment in the infamous ADM Jabalpur case. In that case, the majority had denied relief to the people who were detained under the Maintenance of Internal Security Act, 1971, and lakhs of people had languished in jail for several months as the President of India had suspended the enforcement of the fundamental rights of the people under Article 359 of the Constitution. Thousands of Janata Party supporters had also spent almost nineteen months in jail because of the impact of this judgment. Not only ordinary Janata Party leaders but even Jaiprakash Narain, a stalwart of the Janata Party, had also written to the government to supersede Justice Chandrachud at that time. Then Prime Minister Morarji Desai rejected all such demands and cleared Justice Chandrachud’s appointment to the office of the Chief Justice of India by following the seniority principle. Mr. Shanti Bhushan, then Union Law Minister, narrates that interesting story in his memoirs titled Courting Destiny at (page 188): “I sent a note to Prime Minister Morarji Desai recommending the elevation of Justice Chandrachud by drawing his attention to the almost total judicial consensus in the country that the principle of seniority should be followed. The Prime Minister unhesitatingly accepted my advice and Justice Chandrachud was appointed as Chief Justice of India. Since by this time the views of Jayaprakash Narayan were known to the press, no dissenting voices were raised in Parliament.”

In 1977, the Law Commission, in its 80th report, also recommended to the central government for following the seniority principle in the appointment of the Chief Justice of India. The Commission recommended that there should be no departure from the seniority convention while appointing the Chief Justice of India. The report of the Law Commission was well appreciated by the legal fraternity in the country.

Justice P. N. Bhagwati became the Chief Justice of India after Chief Justice Chandrachud’s retirement in 1985 based on the seniority norm. Despite having some differences with Justice Bhagwati, Chief Justice Y V Chandrachud had recommended his name to the central government. Justice Bhagwati was also part of four judges in the ADM Jabalpur case. Many people were unhappy with him also. It was widely perceived that he had surrendered before the government in the Habeas Corpus case to save his future chief justiceship. He regretted this judgment after thirty-five years in an interview with the media. But it was a much-delayed apology. The damage was already done. However, as a judge, he delivered many landmark judgments that gave him a great name and fame also. The legal community admires him a lot for his contribution to the Public Interest Litigation movement.

After many years the ghost of judicial supersession again appeared in 2018 when many people speculated about the supersession of Justice Ranjan Gogoi who had participated in the unprecedented press conference against the then Chief Justice Dipak Misra in January 2018 along with three of his colleagues Justices Chelameswar, Lokur, and Joseph who had serious differences with Chief Justice Misra on several issues including his powers as the master of roster and allocation of important cases to junior judges. But Justice Misra followed the seniority convention and passed the baton of the apex court to Justice Gogoi his successor and the central government appointed Justice Gogoi as the Chief Justice of India.

In 1993, the Supreme Court of India also approved the seniority convention in the Second Judges case. (Supreme Court Bar Association v. Union of India, (1993) 4 SCC 441). This matter did not come directly before the Supreme Court till 1993. It was only in 1993 that a nine-judge Constitution Bench of the Supreme Court accepted this seniority convention and held that as a matter of rule, the senior-most judge of the Supreme Court shall always be appointed as the Chief Justice of India if he is otherwise fit to be so appointed. This ruling has set all controversies relating to the appointment norms for the office of the Chief Justice of India at rest. Now, this convention of appointing the senior-most judge as the Chief Justice of India is well-settled and it will be very difficult, if not impossible, for the central government to depart from this seniority rule while appointing the Chief Justice of India.

It is submitted that the appointment of the Chief Justice of India by the seniority principle is quite safe and it needs to be continued without any departure in future appointments also. There is no need to disturb this reasonable practice. It eliminates the interference of the executive in the appointment of the Chief Justice of India who is the head of the judicial branch in the country, and it protects the judiciary from executive assaults also. It also enhances the confidence of honest judges who decide cases without any fear or favor. The executive should not be allowed to influence the appointment process of the Chief Justice of India given the collective interests of the judiciary. But along with the seniority convention, fitness of the judge is also a criterion that should be considered while making an appointment to the highest judicial office in the country. Undoubtedly, the senior-most judge should be physically and mentally fit to discharge the functions of his high office that needs a high caliber and legal acumen. As the government is the biggest litigant in the courts of law, it would be very dangerous if any discretion is given to the government in the appointment of the Chief Justice of India. It should not be allowed to breach the seniority convention and the seniority norm should be strictly followed in the appointment of the Chief Justice of India. There does not seem to be a better alternative of the seniority convention for appointing the Chief Justice of India.

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Legally Speaking

TRADE NOT MORE IMPORTANT THAN HEALTH: KERALA HC DISMISSES PLEA SEEKING WITHDRAWAL OF WEEKEND LOCKDOWN IN STATE

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In a progressive, powerful and penetrating observation, the Kerala High Court has just recently on July 27, 2021 in a latest, landmark, laudable and learned judgment titled A Hameed Hajee v. State of Kerala in WP(C) NO. 14867 OF 2021 while ruling explicitly that trade is not more important than health has dismissed a petition seeking withdrawal of the weekend lockdowns imposed in the State amid the pandemic. It must be mentioned here that the Bench of Kerala High Court comprising of Chief Justice S Manikumar and Justice Shaji P Chaly observed that the prayers sought for by the petitioners would be contrary to the directions issued by the Supreme Court. Very rightly so!

To start with, this latest, learned, laudable and landmark judgment authored by Chief Justice S Manikumar for himself and Justice Shaji P Chaly of Kerala High Court sets the ball rolling by first and foremost observing in para 1 that, “Instant writ petition has been filed for the following reliefs:-

“i. Issue a writ of mandamus or any other appropriate writ order or direction to the respondent to withdraw the lock down imposed on Saturdays and Sundays and restriction imposed on all shops, establishments, banks, other institutions, in the state enabling them to function on all days without any time restrictions;

ii. Issue a writ of mandamus or any other appropriate writ order or direction to the respondents to allow the shops, establishments, banks, other institutions to function more time including Sundays to reduce overcrowding of people by maintaining social distancing at all time;

iii. Issue a writ of mandamus or any other appropriate writ order or direction to the respondent to pass an order to functions Offices and other essentials services of Government Banks and Financial Institutions and other institutions on Sundays by following rotations of employees by granting leave on weekday to ensure services to all needy by avoiding overcrowding;

iv. Issue a writ of mandamus or any other appropriate writ, order to the respondent implement effective and efficient plan to strict adherence of Covid Protocol and Social Distancing each and every corner of the state.””

To put things in perspective, the Bench then puts forth in para 2 that, “Short facts leading to filing of the writ petition are as hereunder:-

According to the petitioner, the lock down and restrictions imposed by the State Government to control the spread of Covid-19 has proved to be as unsuccessful, evidencing from the current status of continuing constant rate of TPR in the State. Due to the indefinite extension of complete lock down on Saturday and Sundays, and other restrictions on the functioning of shops, establishments, Banks and other Institutions in the State, on a restricted time period and days, cause overcrowding in all these places, during the period of its functioning, cases have not come down. Petitioner has contended that the number of people or customers are not reduced, by imposing the lock down, but the Government have restrained, to a shorter period, to avail and meet the demands of public and others, the needs and requirements, which cause the overcrowding in shops and other establishments, violating the Covid Protocol and social distancing, the most effective and efficient method accepted across the world, for controlling spread of Covid-19. Petitioner has further contended that there are more than 30 lakh shops and establishments functioning in the State of Kerala and more than 90 lakh workers employed in these shops and establishments. Due to lock down and restrictions on the functioning of shops and establishments, merchants, businessmen, their employees and their families are facing huge financial stringency. The family of these people are purely depending on these sectors for their livelihood and other needs. Due to restrictions to open and functioning of the shops and establishments, huge stock purchased by the merchants are lying idle, holding their huge investment. Apart from that, dues in rent for shops and buildings, electricity and water charges, EMI for loan, wages and salary of its works and employees, etc., piled up the financial burden and liability of merchants in the State. Petitioner has also contended that in the urge of effective and efficient method to control the Covid-19 in the State and safeguard the interest of the merchants and businessmen in the State, according to the petitioner, the Government is still continuing with the proven failed method of implementing lock down and restriction on shops and establishment to control spread of pandemic Covid-19, which is highly necessary to be withdrawn in the current scenario and that the Government should come out with effective implementation of Covid Protocol, social distancing and sanitation and cleanliness, a world wide accepted method of controlling spread of Covid-19.”

Simply put, the Bench then envisages in para 5 that, “Learned Advocate General further submitted that having regard to the ‘Kanwar Yatra’ in Uttar Pradesh, Hon’ble Supreme Court registered Suo motu Writ Petition (C). No.5 of 2021 and, on 14.7.2021, issued certain directions and further directed to list the matter on 16.07.2021. Subsequently, on 18.07.2021, an interlocutory application, viz., I.A. No.82837 of 2021, in Suo motu Writ Petition (C).No.5 of 2021 is filed on behalf of one Mr. P.K.D. Nambiar, pointing out certain news articles, which portray an alarming situation taking place in Kerala as a result of Bakrid celebrations.”

Most significantly, the Bench then observes in para 6 that, “Having heard learned counsel for the parties therein, in I.A. No.82837 of 2021, the Hon’ble Supreme Court, on 20.7.2021, passed the following orders:

“What is extremely alarming is the fact that in Category D, where infections are the highest i.e. 15%, a full day of relaxation has been granted, which was yesterday. It is then stated that, as far as possible, the persons visiting shops and other establishments may belong to those with at least one dose of vaccine/COVID recovered category and follow strict COVID protocols, echoing paragraph (vi) of the 17th July, 2021 Notification, along with the Chief Minister’s appeal. The aforesaid facts disclose an alarming state of affairs. To give in to pressure groups so that the citizenry of India is laid bare to a nationwide pandemic discloses a sorry state of affairs. Even otherwise, homilies such as “as far as possible” and assurances from traders without anything more, do not inspire any confidence in the people of India or this Court. We may only indicate that this affidavit discloses a sorry state of affairs as has been stated hereinabove, and does not in any real manner safeguard the Right to Life and Health guaranteed to all the citizens of India under Article 21 of the Constitution of India. It may also be pointed out that the relaxation for one day to a Category D area was wholly uncalled for. In these circumstances, we direct the State of Kerala to give heed to Article 21 read with Article 144 of the Constitution of India, and follow the law laid down in our orders in the Uttar Pradesh case i.e., 14.7.2021, 16.7.2021 and 19.7.2021. Also, pressure groups of all kinds, religious or otherwise, cannot in any manner, interfere with this most precious Fundamental Right of all the citizens of India. We may also indicate that if as a result of the Notification dated 17.07.2021, any untoward spread in the Covid-19 disease takes place, any member of the public may bring this to the notice of this Court, after which this Court will take necessary action against those who are responsible. In view of the above, I.A. No.82837 of 2021 and the suo motu writ petition are disposed of.””

Adding more to it, the Bench then points out in para 7 that, “Mr. K. Gopalakrishna Kurup, learned Advocate General, further submitted that there will be a review of the COVID-19 pandemic situation in Kerala and depending upon the decision, the restrictions either relaxed in certain cases or made stringent, as the case may be. According to him, only after a comprehensive decision is taken, appropriate orders will be issued by the Government.”

Furthermore, the Bench then points out in para 8 that, “Placing on record the above submission, having regard to the orders of the Hon’ble Apex dated 20.7.2021, extracted supra, and taking note of the submission that a review will be conducted on COVID-19 pandemic situation, we are of the view that the interim order granted on 19.05.2021, periodically extended, requires further extension. Interim order is extended upto 9.8.2021. Registry is directed to post this suo motu writ petition on 06.08.2021.””

What’s more, the Bench then further added that, “Thus, when the Hon’ble Supreme Court had already taken note of the Covid situation in Kerala and observed that relaxation of the restrictions, even for a day to some category of area, was wholly uncalled for, and that when the Hon’ble Supreme Court has also observed that it was the sorry state of affairs that State of Kerala, does not in any real manner, safeguard the rightful life and health guaranteed to all the citizens under Article 21 of the Constitution, the prayers sought for, would be contrary to the directions issued by the Hon’ble Supreme Court.”

Finally and far most significantly, the Bench then holds in the final para that, “That apart, judicial notice can also be taken that in the State of Kerala, the Test Positivity Rate is increasing, despite the measures taken by the Government, to contain the spread of Covid – 19. Trade or business is not more important than health, which is integral to right to life. Reasonable restrictions can be imposed on trade or business. Article 19 (6) and 21 of the Constitution of India, encourages, right to trade and business. If only there is health and life, one can engage himself in trade or business. Having regard to the above, we are not inclined to issue any mandamus as prayed for by the writ petitioner. Writ petition is dismissed.”

Of course, it would not be an exaggeration to say that the final para forms the cornerstone of this brief, brilliant and balanced judgment which very rightly accords the supreme importance to health and also minces no words to hold that, “Trade or business is not more important than health, which is integral to right to life.” We all must always adhere to it and this alone explains why it is so famously said also that, “Health is wealth.” If our health is not good then we cannot enjoy anything in life no matter how much wealth we may have with us! There is certainly no valid reason to disagree with what the Division Bench of Kerala High Court comprising of Chief Justice S Manikumar and Justice Shaji P Chaly have held so explicitly, elegantly and effectively in this noteworthy case while dismissing the plea seeking withdrawal of weekend lockdown in the State! There can certainly just be no denying it!

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STATUTORY ARBITRATION UNDER THE MSMED ACT, 2006: AN ANALYSIS OF THE SUPREME COURT’S JUDGEMENT IN SILPI INDUSTRIES

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The resolution of disputes by arbitration has become one of the preferred modes of dispute resolution in India. The reasons for the popularity of arbitration as a mode of dispute resolution are three-fold: one, arbitration provides for a quick resolution of the disputes between the parties by a mutually (sometimes also unilaterally appointed) appointed arbitrator(s), respecting party autonomy and consent of the parties; two, the evolution of arbitration-friendly approach of courts and legislature in India; and three, the provisions of compulsory/optional arbitration under different statutory instruments in India. The Micro, Small and Medium Enterprises Act, 2006 (MSMED Act) passed by the Indian Parliament with the objective of the promotion, development, and enhancement of competitiveness of micro, small and medium enterprises enunciates statutory arbitration as a recovery mechanism in cases of disputes concerning payment of dues between the parties.

One of the central objectives of the MSMED Act is to provide for speedy disposal of the claims of the suppliers (micro, small and medium enterprises under the MSMED Act) with regards to recovery of dues. Chapter V of the MSMED Act enacts the provisions regarding delayed payments to MSMEs. Section 18 of the MSMED Act lays down the procedure to be followed for the resolution of disputes concerning payments due to be paid by a buyer to a supplier under the MSMED Act. Section 18 of Chapter V enunciates a two-tier dispute resolution mechanism for the settlement of payment disputes between the parties: first, the parties may make a reference to the Micro and Small Enterprises Facilitation Council (Facilitation Council) and the Facilitation Council shall then, either itself or through any other institution or centre providing alternate dispute resolution services, conduct conciliation in the matter under the provisions of Part III of the Arbitration and Conciliation Act, 1996 (ACA); and second, if the conciliation is unsuccessful and there is no settlement of disputes between the parties, the Felicitation Council is mandated to either itself conduct an arbitration or refer the parties to any institution or centre for conducting such arbitration under the provisions of ACA.

Recently, the Hon’ble Supreme Court of India (SCI) in M/s Silpi Industries & Ors. v. Kerala State Road Transport Corporation & Ors., Civil Appeals Nos. 1570-1578 of 2021 (Silpi Industries) decided upon two important questions of law regarding statutory arbitration under the MSMED Act read with the ACA. The following were the questions answered by the SCI in its judgement: (1) Whether or not the provisions of the Indian Limitation Act, 1963 apply to arbitration proceedings initiated under Section 18(3) of the MSMED Act; and (2) Whether or not, a counter-claim is maintainable in such arbitration proceedings. In this article, the authors shall be analysing the judgement of the SCI in Silpi Industries, and its potential implication on Micro and Small industries registered and unregistered under the MSMED Act.

FACTUAL MATRIX

There were two batches of appeals heard by the SCI in Silpi Industries. In the first batch of appeals, the appellants were aggrieved by the judgement of the High Court (HC) of Kerala in an arbitration appeal matter wherein the HC had held that Limitation Act, 1963 is applicable on proceedings initiated under Section 18(3) of the MSMED Act read together with ACA. Further, following the judgement of the Allahabad HC in M/s B.H.P. Engineers Pvt. Ltd. v. Director, Industries, UP Facilitation Centre, Kanpur & Ors., 2009 SCC OnLine All 565 and the Nagpur Bench of Bombay HC in M/s Steel Authority of India Ltd. & Anr. v. Micro, Small Enterprise Facilitation Council, 2010 SCC OnLine Bom 2208, the Kerala HC had held that owing to the provisions of Section 23(2A) of the ACA, counterclaim and set off is maintainable in an arbitration proceeding arising out of institutional arbitration under Section 18(3) of the MSMED Act.

In the second batch of appeals, i.e., Civil Appeals No. 1620-22 of 2021, the appellant was aggrieved by the judgement of the Madras HC in which a second arbitrator was appointed by the HC under Section 11(6) of the ACA. The relevant facts were such that the appellants had filed a claim petition against the respondent before the Facilitation Council under the MSMED Act. Although the respondent appeared before the Facilitation Council, the respondent, in furtherance of its arbitration agreement with the appellant, had made an application before the Madras HC for the appointment of a second arbitrator under Section 11(6) of the ACA. The Madras HC allowed the application of the respondent for the appointment of a second arbitrator, and owing to the provisions of the MSMED Act, did not agree with the case of the appellant that the application of respondent is liable to be dismissed given the pending claim petition before the Facilitation Council. Aggrieved by the order of the Madras HC, the appellant had preferred Civil Appeals No. 1620-22 before the SCI.

ANALYSIS

Applicability of Limitation Act, 1963 on arbitral proceedings under the MSMED Act-

To begin with, the first issue which concerns the applicability of the Limitation Act on the arbitral proceedings under the MSMED Act, the Supreme Court concurred with the decision of the High Court and reiterated the ratio laid down in one of its previous judgments. Taking note of the provisions of Section 43 of the ACA, the SCI propounded that Limitation Act, 1963 will also be applicable on arbitrations arising out of Section 18(3) of the MSMED Act. The apex court observed that when the parties to a dispute, one of whom is qualified as an MSME enterprise, fail to come to terms under the MSMED Act, Section 18(3) of MSMED Act obliges the Facilitation Council to refer the parties to arbitration as per the ACA. Once arbitration is invoked as per Section 18(3) of the MSMED Act, all the provisions of the ACA will automatically become applicable to it. Accordingly, every such arbitral proceeding shall be deemed to be construed as arising out of an arbitration agreement stipulated under Section 7(1) of ACA, even when the parties had not incorporated such arbitration agreement at the time of entering into a contract. The stance taken by the Supreme Court on this particular issue seems to be settled from the beginning as a variety of judgments by courts ranging from High Courts to the Supreme Court have consistently followed this approach. Furthermore, a contrary view to the above-stated position is not feasible as the law on such an issue is clear, categorical, and longstanding. Any contrary view would sabotage the primary purpose of limitation contemplated under the Limitation Act, 1963.

Maintainability of counter-claim & set-off in an arbitration proceeding under the MSMED Act-

Another very important aspect that constitutes the heart of the judgment is the issue of the maintainability of counterclaim in arbitral proceedings initiated under Section 18(3) of the MSMED Act. In this regard, the Court had delved into the legislative intent underlying the MSMED Act, 2006 which is to safeguard the interests of the MSMEs. The said legislation confers benefits upon the sellers which qualify to be MSMEs, in pursuance of a beneficial object that it purports. Such conferment of benefits can find its roots within various provisions of Chapter V of MSMED Act which not only prescribes the rights and obligations of the seller and the buyer, respectively, but it also provides for the mechanism for recovery of any unpaid amount to the seller. Sections 15 and 17 of the MSMED Act 2006 require the buyer to make payment of the amount due to the seller (MSME) within the time agreed by the parties or time prescribed under the Act, failure of which would render the buyer liable to pay the due amount in addition to compound interest at the rate three times of the bank rate. Additionally, Section 19 enables the buyer/applicant to apply for setting aside an award, decree, or order passed in favour of the seller, only when she deposits 75% of the amount in terms of the award or decree.

Given the aforesaid provisions, the court opined that ousting the jurisdiction of the Facilitation Council merely on the ground of inadmissibility of the counterclaim by the buyer/Respondent under proceedings under section 18(3) of MSMED Act would defeat the very purpose of the MSMED Act as the seller (MSME) would not be able to enforce its rights against the buyer in case of any default in payment by the latter. That is to say, if counter-claim is not allowed, the buyer can easily evade its statutory obligation of payment of compound interest at the rate three times of the bank rate and security deposit of 75% envisaged under Sections 16 and 19 of MSMED, respectively, by filing a counter-claim in the proceedings under Section 18(3) of MSMED Act. Such a decision implies that even when there is a separate agreement for the resolution of disputes between the parties, the parties are bound to follow the recovery mechanism stipulated under the statute of the MSMED Act.

The mechanism for the recovery of the unpaid amount provided within Section 18 of MSMED Act stipulates that in case of any dispute with regards to the non-payment of amount due to the seller, any party may refer to the Facilitation Council which will then conduct conciliation between the parties as per subsection (2) Section 18 of MSMED Act. It is only when the parties fail to conciliate, the parties are mandatorily referred to arbitration under Section 18(3) as a result of which all the provisions of ACA will become applicable to such arbitration as if there is an arbitration agreement between the parties under Section 7(1) of ACA. While making special reference to Section 23(2A) of the ACA, the Supreme Court has highlighted that when there is already a provision for filing a counterclaim under Section 23(2A) of the ACA, there is no point in denying the right of the buyer/respondent to file a counterclaim in the arbitration proceedings before the Facilitation Council under Section 18(3) of MSMED Act. The rationale behind the insertion of the provision of counterclaim within the ACA was to prevent multiplicity of proceedings and diverse claims. Curtailing the right of buyer/respondent in the arbitration proceedings under Section 18(3) would initiate parallel proceedings in distinct forums. In this way, the seller who is a beneficiary under the MSMED Act would claim before Facilitation Council under the provisions of the MSMED Act, while the buyer would either approach the civil court for making its claims or seek the appointment of an arbitrator if there is an arbitration agreement between the parties. Hence, refusal to admit the counterclaim in the arbitral proceedings before the Facilitation Council under Section 18(3) of MSMED Act, 2006 will lead to conflicting findings by different forums and render such proceedings redundant.

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Dhanbad judge death: Court wants speedy, fair and professional probe; Jharkhand HC seeks SIT report on 3 Aug

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It is most shocking to see that an upright, fearless and dedicated Judge named Uttam Anand has been brutally murdered by goons on July 28 in a three wheeler vehicle which has shocked the conscience of the entire nation except those politicians who feel that it is too trivial a matter to be discussed in Parliament and what is most serious is that their phones were hacked and this has seriously invaded their exclusive privacy. No doubt, hacking of phone is an illegal act and those who are behind it must be dealt with in accordance with law but does this mean that Opposition should hold Parliament to ransom and tear papers in Parliament, snatch it from Minister and tear it, shout and not allow Parliament to function and ignore the brutal murder of ADJ (Additional District Judge) Uttam Anand as a “routine affair”? Why it makes no difference to our Opposition MPs and why they are not ready to mourn the brutal murder of Uttam Anand and demand a thorough probe into it?

Why are they concerned only with mobile snooping and phone snooping? If they have nothing to hide then why are they so perturbed? Is Pegasus snooping row a more important issue or brutal murder of an ADJ which is nothing but a direct attack on our judiciary itself? Does the life of a Judge signify nothing? I really pity at all those MPs who are not allowing Parliament to function smoothly and who are not at all concerned with the brutal and ghastly murder of this fearless Judge who placed his values above his own safety!

It is however good to note that senior lawyer named Vikas Singh who is President of Supreme Court Bar Association, Chief Justice of India NV Ramana and Jharkhand High Court have all taken this key issue most seriously for which they must be lauded. The Division Bench of Jharkhand High Court comprising of Chief Justice Dr Ravi Ranjan and Justice Sujit Narayan Prasad has taken suo motu cognizance of ADJ Uttam Anand’s death and has directed the Special Investigation Team formed to probe into the incident, to submit its report by August 3. The Division Bench in its oral order dated 29 July, 2021 first and foremost points out in para 1 that, “The matter has been taken up through video conferencing.”

To put things in perspective, the Bench then points out in para 2 that, “A letter has been received by the In-Charge Registrar General written by the Principal District and Sessions Judge, Dhanbad bearing letter No.2788-G/2021 dated 29.07.2021 intimating incidence regarding sad and unfortunate demise of Shri Uttam Anand, District and Additional Sessions Judge-VIII, Dhanbad on 28.07.2021. The content of the aforesaid letter is reproduced hereunder:- “LETTER NO. 2788-G/2021 From : Ram Sharma’ Principal District and Sessions Judge, Civil Court, Dhanbad. To, The Registrar General, High Court of Jharkhand, Ranchi. Dhanbad dated 29.07.2021 Subject : Intimation regarding untimely demise of Sri Uttam Anand, District and Addl. Sessions Judge-VIII on 28.07.2021. Sir, This is to bring to you kind notice that on 28th July 2021 at about 9.20 am, I was informed by the Registrar, Civil Court Dhanbad, that Sri Uttam Anand, District and Addl Sessions Jude-VIII had gone for a morning walk but did not return till now. I instructed him to contact the local police immediately and visit the nearby hospitals. The SSP Dhanbad was also informed telephonically in this regard and photograph of Sri Uttam Anand, District and Addl. Sessions Judge-VIII was also circulated to police personnels and the court staffs. During the course of search it was discovered that Sri Uttam Anand, District and Addl. Session Judge -VIII was found critically injured near Randhir Verma Chowk and was brought to PMCH Hospital. I immediately rushed to PMCH Hospital and found him dead. The attending doctors informed me that he was brought to the hospital by one Pawan Kumar Pandey and thereafter necessary treatment was given to Sri Uttam Anand and he was also put on ventilator but succumbed to his injuries. Thereafter, necessary instructions were issued to the police with regard to arrest of culprits. This is for your information and needful. Yours Faithfully Sd/- 29.7.21 Ram Sharma Principal District and Sessions Judge Dhanbad” Let letter No.2788-G/2021 dated 29.07.2021 be kept on record.”

While taking suo motu cognizance, the Bench then puts forth in para 3 that, “This Court, on the basis of the aforesaid letter as also the CCTV footage, takes suo moto cognizance of the matter treating the letter as the writ petition in the nature of Public Interest Litigation. Office is directed to register the case accordingly.” To be sure, the Bench then observes in para 4 that, “We have gone through the content of the aforesaid letter as also perused the CCTV recording of the occurrence and, therefore, called upon the learned Advocate General of the State, Director General of Police, Jharkhand, Senior Superintendent of Police (SSP), Dhanbad and Superintendent of Police (City), Dhanbad as also Mr. Rajiv Sinha, learned Additional Solicitor General of India.”

To put things in perspective, the Bench then enunciates in para 5 that, “We, during the Court proceeding, asked the Office of this Court to display the CCTV footage of the incident which has been perused by the learned Advocate General and the officers who are present today. The Senior Superintendent of Police, Dhanbad has submitted in course of hearing that two persons have been apprehended. One of them is auto-rickshaw driver and another person who was sitting in the vehicle. Interrogation is being done by the Special Investigating Team constituted by him.” While elaborating on the facts of the case, the Bench then envisages in para 6 that, “The members of the Bar have also appeared and submitted before us that the incident, in which a judicial officer has been killed, cannot be taken as a simple case of accident or murder rather the investigation is required to be conducted by the investigating agency on the angle that there may be conspiracy for the killing of the judicial officer as, according to them, the judicial officer concerned was in the seisin of very sensitive matters. It has further been submitted that it cannot be believed that this incident is a simple accident by a vehicle as the place where the incident took place is the prime location of the town of Dhanbad or it may be called as the main chowk of Dhanbad and when the concerned judicial officer was on morning walk, he was approached by autorickshaw. It would be evident from the CCTV footage that the vehicle, at the morning time when there was no traffic at all on the road took a sharp bend and approached the judicial officer who was jogging on the footpath on the left side. The auto-rickshaw came from behind and suddenly went towards the judicial officer. It slowed down when it just came beside him and then the judicial officer fell down on his left side. They have submitted that it would be more surprising to see the CCTV footage that one motor-bike rider who was coming from the opposite side of the auto-rickshaw took a u-turn and had followed the auto-rickshaw and when the concerned judicial officer has fallen, he watched the judicial officer falling down and thereafter fled away. They submitted that after watching such CCTV footage it does not appear to be an accidental death, rather it appears that it is a well conspired killing of the judicial officer that too just adjacent to the residence of the judicial officers in the town of Dhanbad. They have submitted that it is further surprising that the CCTV footage immediately went viral. Question is, when the CCTV cameras which have been installed in the municipal roads, is expected to be under the control of the district administration then how the aforesaid CCTV footage could become viral? They have also submitted that as per the newspaper report, the aforesaid auto-rickshaw has been found to be of one Sugni Devi, who in course of interrogation has apprised the investigating agency that her auto-rickshaw has been stolen. It is submitted that the occurrence is nothing but a brazen attack on the justice delivery system perhaps to give some message across the country therefore, it is a fit case where the investigation is required to be handed over to the Central Agency i.e., Central Bureau of Investigation.”

Needless to say, the Bench then while referring to eminent and senior advocate – Vikas Singh who is the President of Supreme Court Bar Association and who is actively monitoring this case points out in para 7 that, “During the Court proceeding, Mr. Vikas Singh, President of the Supreme Court Bar Association, had prayed to provide him link to appear in this case. Such link was provided to him and in pursuance thereto Mr. Singh appeared during the Court proceeding and has submitted that the incident of murder of the judicial officer is nothing but an attack on the judicial system of the country and ultimately a brazen attack of our democratic system. As such, he contended that the matter is required to be investigated by C.B.I.”

Be it noted, the Bench then observes in para 8 that, “We have put a question to the Superintendent of Police (City), Dhanbad who is heading the Special Investigating Team, that as to whether the two wheeler rider has been apprehended or not? He has replied that the two wheeler rider has not been apprehended but the persons riding the auto-rickshaw have been apprehended. We have also put query to the Senior Superintendent of Police, Dhanbad that what is the proof regarding theft of the auto-rickshaw, as has been said by Rugni Devi, the owner of the auto-rickshaw and whether the theft of that auto-rickshaw was ever been reported to any police station? Upon this the Senior Superintendent of Police has submitted that as yet it has not been verified. He further submits that he will take care of this angle and will also investigate this aspect of the matter.”

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It is also worth noting that the Bench then mentions in para 9 that, “Learned Advocate General has submitted that since the Special Investigating Team has been constituted and two vital persons have been apprehended, therefore, at this stage matter may not be handed over to the Central Bureau of Investigation otherwise it will have a demoralizing effect upon the police force of the State. He further submits that if this Court deems it fit and proper then the State is ready to appoint a high rank police officer to head the Special Investigating Team. The Director General of Police, Jharkhand has submitted in furtherance to the submission made by learned Advocate General that a higher ranking police officer of the State would lead the Special Investigating Team and he has suggested the name of Mr. Sanjay A. Lathkar, IPS, now ADG (Operation), Jharkhand. The Director General of Police, Jharkhand has submitted that he will take all sincere endeavour to get hold of real culprits as also to conduct the investigation in professional manner to surface the conspiracy, if any, in the murder of the judicial officer concerned. He has further submitted that the Special Investigating Team will surface out the entire thing since two vital persons, who were boarding the auto-rickshaw, have already been apprehended and proper investigation in a professional manner would be conducted.”

Most remarkably, the Bench then holds in para 10 that, “This Court, in view of the facts stated hereinabove and taking into consideration the fact that Special Investigating Team has apprehended two persons on 28.07.2021 as also in view of the submission made by the learned Advocate General and Director General of Police that a high rank police officer would lead the Special Investigating Team and the investigation would be conducted in a very professional manner, deems it fit and proper to permit the S.I.T. headed by Mr. S.A.Lathkar, ADG (Operation) to investigate the matter in a professional and fruitful manner. We, hereby, direct the Director General of Police, Jharkhand to immediately issue appropriate order/direction for heading the Special Investigating Team by Mr. Sanjay A. Lathkar, IPS, ADG (Operation), Jharkhand today itself. The newly appointed head of the Special Investigating Team will immediately take over the investigation and conduct the investigation in a professional manner and submit its progress report on 03.08.2021. We make it clear that this Court wants a speedy, fair and professional investigation in the matter, as such, this Court will monitor the progress of the case and that is the reason we are posting this case on 03.08.2021 to look into the progress in the matter to come to the conclusion for continuation of the investigation by the Special Investigating Team or to hand it over to the Central Bureau of Investigation. We further make it clear that apprehending a pawn is meaningless unless the conspiracy is fully uncovered and the mastermind is nabbed. Time would be essence of matter in this investigation. Delay as well as well as any flaw in investigation may eventually affect the trial adversely. We are directing the S.I.T. to submit a report on the next date of hearing. Let an affidavit be filed disclosing as to when the information regarding the occurrence was received by the police and the time when the F.I.R. was registered. Let an information be also given to us as to whether the procedure of post mortem was video-graphed or not? The Director General of Police, Jharkhand will apprise this Court about the graph rate of the crime in the State of Jharkhand after January, 2020.”

Going ahead, the Bench then states in para 11 that, “Let this matter be posted on 03.08.2021 at the top of the list.”

What’s more, the Bench then further adds in para 12 that, “The required affidavits, as directed, shall be filed along with progress of investigation including the copy of the post-mortem report and F.I.R. under sealed cover, on or before the next date of hearing.”

Finally, the Bench then holds in para 13 that, “Let this order be communicated immediately to the learned Advocate General of the State who will ensure its communication to the concerned officers forthwith.” One is quite sure that the truth will definitely come out as to who all are behind this dastardly murder of the great soul named ADJ Uttam Anand. The dogged determination with which Jharkhand High Court is pursuing the case and so also Vikas Singh who is President of Supreme Court Bar Association and is actively taking most keen interest in the case and so also the CJI NV Ramana who himself spoke to Dr Ravi Ranjan who is Chief Justice of Jharkhand High Court and has taken suo motu cognizance of this case and has said that it would want to be appraised of the status of investigation and so it is just not possible that those involved can get away under any circumstances! It needs no Albert Einstein to conclude that our Judges have to be safeguarded from violent attacks because if this is not done then Judges will fear for their personal safety and procrastinate in front of powerful criminals and this we see also to some extent in our country even though many Judges are still upright and one such Judge named Uttam Anand we saw being brutally murdered in broad daylight! This should never have happened but it has happened in Jharkhand! One only fervently hopes that the culprits are quickly brought to justice and all those who are behind it are also brought to book and are not left scot free under any circumstances!

It will not be an exaggeration to say that our whole system has become rotten and it must be addressed in totality. Just band aid solution like punishing only the real killers of ADJ Uttam Anand is not the real solution. All those who are behind it and all such criminals with several serious criminal cases pending against them and yet sitting most comfortably in Parliament and State Assemblies with some even becoming Law Ministers themselves or their juniors like Minister of State must be thrown out right now whether in the Centre or in the States!

This alone will be the best tribute to the departed Judge named Uttam Anand! If politicians don’t act themselves now it is the Supreme Court which must now immediately swing into action and take this as nothing but as a direct assault on the judiciary itself and it is most comforting also to note that the top court as also the Jharkhand High Court have both taken it most seriously! It brooks no more delay anymore! How many more Judges are we waiting to be killed in such callous manner by the ruthless criminals? Truth must come out at the earliest and those behind it deserve to be hanged publicly at the earliest! There cannot be any mercy for them! No way! No question!

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Will India get another SC bench for southern states?

Surya Pratap

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The councils stated that they made the demand in light of the problems that persons from the South encounter in conducting cases in Delhi, both in terms of accessibility and cost. A delegation of top officials from the Bar Councils of five southern states – Karnataka, Tamil Nadu, Telangana, Andhra Pradesh, and Kerala – met with Chief Justice of India NV Ramana and Vice President M Venkaiah Naidu to advocate for the establishment of a Supreme Court of India bench in South India. The Bar Councils of Telangana, Andhra Pradesh, Tamil Nadu, Karnataka, and Kerala came together in January this year and overwhelmingly demanded a Supreme Court bench in south India. It was unanimously resolved to request all the State Legislative Assemblies and Legislative councils to pass resolutions and send them to the center seeking a bench of the apex court in South India. 

In November 2019, MDMK General Secretary and Rajya Sabha MP Vaico addressed the long-standing demand for the Supreme Court to establish a bench in South India for the convenience of litigants in the Upper House of Parliament. Vaiko had stated that a Supreme Court bench in Chennai will help the supreme court’s backlog of litigation. He said that the high expense of travel to New Delhi was prohibiting marginalized and disadvantaged people in South India from accessing the Supreme Court.

DECENTRALISATION’S OBJECTIVES

According to Justice Krishna Iyer, there was no rationale for choosing Delhi as the Supreme Court’s exclusive venue. The tyranny of the south by the north was mirrored in the centralised system. Suggested that the Supreme Court be divided into many benches, similar to how several High Courts do it. Several additional proponents of decentralisation note to two major issues that they feel regional benches can address.

The Supreme Court hears only a few matters from the subordinate courts. Due to the Supreme Court’s geographical concentration in Delhi, frequent adjournments have only added two cases to the pre-existing backlog. Aside from the case backlog, the Law Commission’s 229th report also highlighted the logistical challenges that poor litigants confront when travelling all the way to Delhi.

SUGGESTION OF THE LAW COMMISSION 

The Law Commission recommended that four regional benches be established to hear matters from each region. Second, the separation would allow a Supreme Constitutional Court to better teach national issues. Litigants frequently ask their High Court attorneys to appear at the Supreme Court, resulting in a cost multiplier in terms of lodging and travel fees. “Adjournment grew prohibitive, costs multiplied,” according to the Law Commission’s findings. The Supreme Court was created to be a constitutional court, not just another Court of Appeal (Justice Bhagwati). The court, on the other hand, is currently inundated with appeals, which consume more time than constitutional issues. Only ten 5-judge constitutional benches have been formed on average per year since the 1960s, compared to 100 per year in the 1960s.

Article 145(3) mandates the use of these benches in all cases involving significant constitutional issues. “The Supreme Court cell seat in Delhi or such other place or places, as the Chief Justice of India may, with the agreement of the president, nominate from time to time,” according to Article 130 of the Indian constitution. As a result, the Supreme Court can convene at any location, not just Delhi. In a 1986 decision, Justice P.N. Bhagwati agreed with this viewpoint.

“If Article 130 is generously interpreted, no constitutional change may be required for the purpose of establishing cassation benches in four regions and a Constitution Bench in Delhi,” the Law Commission stated in its 229th report. The Chief Justice of India’s action, with the president’s consent, may be sufficient. It should also be emphasised that the Chief Justice of India acts as a person designato under Article 130 and is not compelled to consult any other authority or person. Only the president’s approval is required.

OPPOSITE PERSPECTIVE

Many legal experts believe that establishing regional Supreme Court benches will diminish the court’s constitutional superiority. However, given that the decentralisation is both functional and structural, and that only the Delhi bench deals with constitutional issues, such fears may be unfounded. As a result, establishing regional benches has no bearing on the supreme court’s finality or superiority. The Supreme Court of India has always been a strong institution that has provided exceptional service to the country.

ARE THERE ANY OTHER OPTIONS?

The Congress advocated the creation of a national Court of Appeals (NCA) as an intermediary body between the Supreme Court and India’s 25 high courts to hear regular civil and criminal appeals from the high courts in its Lok Sabha election platform. According to the Congress’s proposal, the NCA will be divided into six regional benches, each with three judges. The Congress has also suggested a constitutional change that would limit the Supreme Court’s authority to issues involving constitutional interpretation and adjudication of cases of national importance.

CONCERNS WITH THIS 

Article 130 of the Indian Constitution, which would, in fact, amount to meddling with the Supreme Court’s essential constitutional structure. An amendment like this would strip the Supreme Court of its extraordinary appeals-hearing powers. The Union Minister of Law and Justice stated the same thing in 2014 when denying the aforementioned request.

ATTEMPTS IN THE PAST

The report recommended that the Supreme Court establish four appellate benches in Chennai/Hyderabad, Delhi, Kolkata, and Mumbai. At the time, the report’s proposal was rejected. V Vasanthakumar submitted a petition in 2015 to establish regional Supreme Court benches. The Supreme Court appointed KK Venugopal, the incumbent Attorney General, as an amicus curia in the case. He was in favour of the court being decentralised. However, Mukul Rohatgi, the then-Attorney General, was a vocal opponent of the proposal.

THE PROPOSAL’S DRAWSBACKS

A fragmented court is thought to result in fragmented verdicts. The Supreme Court must unify the law throughout India, and having numerous benches may obstruct this purpose. This is analogous to the current situation, in which multiple High Courts issue conflicting rulings on the same facts. This proposition may possibly be in violation of doctrine’s basic structure. Any division of the code would necessitate a constitutional amendment. Article 136, in particular, may have an impact on basic structure doctrine. Ex-CJI KG Balakrishnan made a point of avoiding dismissing cases, as this would be tantamount to denying someone a hearing. As a result, urgent measures are required to resolve the backlog of cases.

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The traceability rule under the IT Rules 2021: A step forward or backward?

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The ministry for electronics and IT notified Information Technology (intermediary guidelines and digital media ethics code) rules 2021. These new IT rules supersede the old IT rules of 2011. The new IT rules are more comprehensive in nature and introduces multi facets guidelines which remain dormant in the old IT rules.

The most essential amendment in the new IT rules is rule 4(2) which imposes an obligation on the social media forums providing messaging services to trace the first originator of the message or a social media post which affects the integrity, sovereignty of the country or affects the relations with other countries and anything which incites public order or portrays sexual abuse on women and children. This rule is embodied with a penal punishment for not less than 5 years under IPC 1860 and it does not obligate the intermediary to disclose the contents of the message of the first originator.

The traceability rule has drastically affected the social media platforms like WhatsApp LLC, Facebook and Twitter etc. and makes them aggrieved as the traceability of messages between the first originators and receivers undermines privacy protection policies and infringes the fundamental rights of its users, especially the right to privacy under Article 21 and right to freedom of speech and expression under Article 19(1) of the Indian constitution. Further, the traceability rule also puts an end to the end-to-end encryption of the messages between the first originators and receivers which. The third concern is about the creation of a platform or a portal for the collection and storage of billions of messages exchanged between people on social media platforms.

It is interesting to point out that the social media intermediaries like WhatsApp and Facebook who are advocating for the removal of the traceability rule from the IT rules 2021 on the ground of infringement of privacy of its users, have in the past, allegedly attempted to infringe the privacy of its users. The chief example was the recent WhatsApp privacy policy which allegedly shared some business conversations hosted on its platform with Facebook for advertising. The Facebook also failed to ensure privacy to its users which is apparent from the Cambridge Analytica scandal which is one of the biggest privacy infringement scandal.

It must be kept in mind that the fundamental rights as enshrined in Indian Constitution are not absolute in nature and they are curtailed by the reasonable restriction. For example, the right to freedom of speech and expression under Article 19 (1) is not absolute in nature because it is curtailed by the reasonable restriction under Article 19 (2), similarly the right to privacy under Article 21 is also subject to reasonable restrictions which is apparent from the Apex court decisions in Justice K.S. Puttaswamy (Retd.) case, Ritesh Sinha case and Modern Dental College and Research Centre case. Further, rule 4 (1) (a), also ensures the principle of natural justice to the first originator by sending them, a prior intimation notice specifying all the grounds and reasons for the action of the elimination of certain information also gives them a right to reply to that notice.

On a perusal of rule 4(2), it can be ascertained that the life of the citizens of this country is not at risk and the traceability rule is only introduced to catch the culprit who attempts to downgrade India’s reputation in the world, puts the integrity and sovereignty of this country at bay and attempts to degrade the women and children who are a victim of sexual abuse but the traceability principle suffers from one flaw that is the issuance of direction to Social media intermediaries by the Government and this flaw can be cured by amending rule 4 (2) to the extent that the direction as given by Government must bear the judicial approval. Therefore, the new IT rules are a step forward to protect its citizens in an efficacious manner.

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Madras High Court order on ‘right to be forgotten’: Analysis and critique

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Recently, a Single-Judge Bench of the Hon’ble Madras High Court headed by Hon’ble Mr. Justice N. Anand Venkatesh, had given an important order regarding ‘right to be forgotten’ (‘RTBF’) or right to erasure as a facet of the fundamental ‘right to privacy’, in an anonymous reported writ petition with the citation W.P. (MD). No. 12015 of 2021 (‘High Court Order’). This development follows another remarkable order on RTBF announced previously by the Hon’ble Delhi High Court in Jorawer Singh Mundy @Jorawar Singh Mundy vs. Union of India and Ors., 2021 SCC OnLine Del 2306 (‘Mundy Case’), which has been analysed and critiqued by myself in an earlier issue for The Daily Guardian dated June 1, 2021.

BRIEF BACKGROUND

The High Court Order is the first of its kind, as it interestingly completely masks the identity and any personal data/information of the petitioner who is seeking to obtain the RTBF. As recorded by the High Court, the anonymous petitioner had previously faced criminal proceedings of offences for which punishments are prescribed under Section 376 (Punishment for offense of rape) and Section 417 (Punishment for offense of cheating) of the Indian Penal Code (‘IPC’). Eventually, the petitioner was ultimately convicted of the above-mentioned offences by the Trial Court in September 29, 2011. Subsequently, the petitioner had appealed this judgment before the High Court, ultimately resulting in their acquittal from all charges in a judgment delivered on April 30, 2014 (Crl. A. (M.D.). No. 321 of 2011).

However, the petitioner’s name kept getting reflected in the judgment rendered by the High Court and was freely accessible to anyone who typed their name in Google Search. Even though the petitioner was acquitted, the fact is that they have been identified as an accused throughout the previous judgment. Consequently, the petitioner argues that this causes a serious impact on the reputation of the petitioner in the eyes of the society. Therefore, the petitioner wishes for the High Court to grant an order redacting their name from the judgment of the High Court.

HIGH COURT’S ANALYSIS

The High Court Order observes that by virtue of the previous acquittal order, the petitioner could no more be identified as an accused in the eye of the law. Given the fact that the world is under the grips of social media, the background of any person could be assessed by everyone entering into a Google Search and collecting data on the petitioner. Moreover, the High Court observes that there can be no assurance that the data obtained from a Google Search on an individual is authentic.

Yet, as the data is publicly available, it creates a first impression on mind of the one using Google Search. Depending on the data provided, the Google Search can make or mark the characteristic of a person in the eyes of the society. The High Court Order observes that in today’s world, everyone attempts to portray themselves in the best possible way on social media. It is one of the new challenges faced by the world and has everyone grappling to deal with the harbinger of further complexities awaiting mankind.

Moving forward, the High Court Order observes that the Central Government is in the process of finalizing a Data Protection legislation which will effectively protect the data and privacy of a person. It also observes that the legislature has enacted laws protecting the identity of victims of certain crimes who are women and children, due to which their names are not reflected in any order passed by a Court and automatically stand redacted, ensuring that no one is able to identify such a victim.

Subsequently, the High Court Order observes that while the person and privacy of the individual are protected by such laws, no such legal protection has been similarly extended to accused individuals who have been ultimately acquitted from all charges in a criminal case. It is due to this reason that an individual who was acquitted of all charges approached the High Court for a similar remedy, seeking redaction of their name from the previous judgment passed by the High Court.

HIGH COURT’S ORDER

The High Court recorded that the petitioner’s request for seeking a RTBF order could be made only by placing reliance upon Article 21 of the Indian Constitution, which mentions the fundamental right to life and personal liberty. Recalling the Nine-Judge Constitution Bench judgment of the Hon’ble Supreme Court in Justice K.S. Puttaswamy (Retd.) vs. Union of India, (2017) 10 SCC 1 (‘Puttaswamy Judgment’), the High Court stated that the right to privacy has been held to be a fundamental right which is traceable to Article 21 of the Constitution. The High Court Order also observed that a similar case had come up before the Delhi High Court (implicitly referring to the Mundy Case), where the Delhi High Court had granted a RTBF order.

Moving forward, the High Court remarked that if the essence of the Puttaswamy Judgment was applied to the petitioner’s writ seeking RTBF in the present case, “obviously even a person, who was accused of committing an offense and who has been subsequently acquitted from all charges will be entitled for redacting his name from the order passed by the Court in order to protect his Right of Privacy.” Consequently, the High Court held that a prima facie case had been made out by the petitioner, entitling them to redact their name from the previous High Court judgment. However, as such a case had come up for the first instance before the High Court, it also sought to hear the Advocates appearing in the case and members of the Bar in order to understand the various ramifications that the High Court Order may have, before writing a detailed judgment.

CRITIQUE

There are seven reasons on the basis of which I argue that the High Court Order in the present case is flawed. First, similar to the Mundy Case before the Delhi High Court, the Madras High Court opted to make a prima facie review. However, unlike the former case, the Madras High Court in the present case did not identify competing interests or rights, which would necessitate a balancing of RTBF with such competing interests or rights. Consider for example the ‘fundamental right to freedom of speech and expression’ of citizens and the ‘fundamental right to practice any profession, or to carry any occupation, trade or business’ (which would also cover news reportage and journalistic professions or work by citizens) are important competing interests/rights, which were not mentioned and balanced against RTBF by the High Court Order.

Second, apart from the above-mentioned competing interests/rights, there is a need for courts to have maintenance of transparency, as well as the need for the citizens/general public to have ‘access to information’ (which enables them to exercise some fundamental rights, such as right to freedom of speech and expression). Notably, the High Court Order in its prima facie review did not mention or attempt to balance these competing interests/rights against RTBF.

Third, since criminal proceedings are a part of the public record, it follows that the public officials and Indian citizens should have a right to know if an individual was tried for a grave offence under the IPC or other laws, especially offences such as ‘rape’ or other sexual offences, which was the case in the previous judgment mentioned in the present High Court Order. Importantly, rape or other sexual offences are serious actions against the bodily autonomy, dignity, decisional privacy and the person of an individual. The lack of legal protection to an individual who is acquitted of a rape charge shouldn’t therefore be equated with the protection of masking identities or personal data that legislature has provided to woman or child victims in cases involving serious offences such as those involving rape or other sexual offences.

Fourth, as pointed by myself in a previous article for The Daily Guardian (dated June 1, 2021), the fundamental right to privacy created by the Puttaswamy Judgment does not have a ‘horizontal application’ (i.e. exercise of an individual’s fundamental right against a person or entity other than the State). Consequently, assuming but not admitting that the petitioner’s RTBF exists in the present case, private entities such as Google cannot be ordered by the High Court to enforce RTBF as a facet of fundamental right to privacy. Further, while the ambit of the High Court’s writ jurisdiction under Article 226 of the Constitution is wider than the Supreme Court’s writ jurisdiction under Article 32, the High Court’s powers cannot be used to enforce fundamental rights against non-State actors or private entities which do not perform a ‘public function’.

Fifth, the High Court Order is contrary to the position taken by the Hon’ble Gujarat High Court in Dharmraj Bhanushankar Dave vs. State of Gujarat, S.C.A. No. 1854 of 2015, where the High Court had rejected a plea similar to the present RTBF order. In the Dharmraj Dave case, a permanent restrain on free public exhibition of a judgment and order in which the concerned petitioner was acquitted from criminal proceedings involving ‘murder charges’ was being sought. The contrary stances taken by Madras High Court, as well as the previous Delhi High Court order in the Mundy Case furthers judicial incoherence on RTBF in India.

Sixth, in absence of any law enacted by the Indian Parliament to enable courts to grant RTBF and in light of the ‘horizontal-application’ nature of the fundamental right to privacy as propounded by the Puttaswamy Judgment, private entities such as Google cannot be compelled to redact the identity of individuals from the internet, especially when they are merely linking information or providing location of webpages detailing a reported court order. Lastly, it is pertinent to point out that there is neither any international instrument or treaty entered into by India nor any customary law which imposes any obligations on States to create laws or legislative mechanisms to provide an individual a RTBF or right to erasure of personal data, especially against non-State actors or private entities.

CONCLUSION

In light of the above-mentioned critique, I have sought to establish that the Madras High Court’s order in the present case is flawed. However, the increasing number of RTBF applications before various Indian High Courts highlight an imminent need for the Parliament to consider enacting a statutory mechanism governing RTBF or passing a constitutional amendment creating a ‘horizontal application’ of fundamental right to privacy, which would enable judicial authorities to adjudicate writ litigations invoking right to privacy under Article 21 of the Constitution to enforce RTBF against private entities such as Google. Nevertheless, it is important to bear in mind that if a RTBF is created through a statutory enactment or a constitutional amendment, much like its parent right to privacy, it cannot be an absolute right. A RTBF should not be extended to enable individuals acquitted from serious offences such as rape or other sexual offences, murder, offences relating to narcotic drugs and psychotropic substances etc. 

The increasing number of RTBF applications before various Indian High Courts highlight an imminent need for the Parliament to consider enacting a statutory mechanism governing RTBF or passing a constitutional amendment creating a ‘horizontal application’ of fundamental right to privacy, which would enable judicial authorities to adjudicate writ litigations invoking right to privacy under Article 21 of the Constitution to enforce RTBF against private entities such as Google.

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