In the past 15 years, the social networking industry has certainly been one of the fastest-growing industries in the world. A recent study estimated that the global market for mobile social networking stood at 3.2 billion users in the year 2020 and is projected to reach a revised size of 4.9 billion users by 2027, growing at an annual growth rate of 6.5% over next seven years. The numbers depict how deeply personal social networking has penetrated our lives and hence the conduct of these booming service providers has also become more relevant than ever. Other than a host of data privacy concerns raised against these service providers, there have also been recent complaints of antitrust violations being flagged up against them.
Recently, two lawsuits have been filed by the US Federal Trade Commission (“FTC”) & governments of 48 US states and territories, accusing Facebook of eliminating competition by acquiring its competitors and resorting to anticompetitive trade practices. The lawsuit has once again brought the conduct and the present structure of the giant social media company under the scanner. Ian Conner, director of FTC’s Bureau of Competition, has remarked that “Facebook’s actions to entrench and maintain its monopoly deny consumers the benefits of competition. Our aim is to roll back Facebook’s anticompetitive conduct and restore competition so that innovation and free competition can thrive,” This complaint and the statement is particularly interesting as it suggests a significant shift in the United States’ antitrust policy. FTC, which generally follows a non-interventionist approach – unlike the CCI in India and the CMA in the UK, through this complaint seems to have heralded a new era where even the FTC wants to intervene and review the business practices in the digital world.
The FTC’s complaint also resembles very closely to the recent Competition and Markets Authority’s (“CMA”) report on Facebook. Both – the complaint and the report, highlights noteworthy anti-competitive practices adopted by Facebook.
FACEBOOK’S BUSINESS MODEL IN A NUTSHELL
Facebook, formed in February 2004, was one of the first personal social networks to gain significant popularity. In contrast to the limited functionalities of email and messaging, Facebook’s personal social network gained immediate popularity by providing a distinct and richer way for people to maintain personal connections. Generally, personal social networking providers e.g. Twitter, Facebook, Google+, have introduced a unique business model where on one side of the market – the social networking services, there is no monetory price for the services, but on the other side – the digital advertisement, the advertisers are charged heavily and are faced with take it or leave it situation. Facebook too monetizes its businesses by selling advertising that is displayed to users based on the personal data about their lives that Facebook collects. This business model has been highly profitable for Facebook, both in the market of social networking as well as in the display advertising. Advertisers pay billions – nearly $70 billion in 2019 – to display their “specific ads” to “specific audiences”, which is facilitated by Facebook using proprietary algorithms that analyse the vast quantity of user data it collects from its users.
FTC has filed a lawsuit before the District Court of Columbia alleging that Facebook has maintained its monopoly position by buying up companies that present competitive threats and by imposing restrictive policies that unjustifiably hinder actual or potential rivals that Facebook does not or cannot acquire. Facebook’s 2012 acquisition of Instagram for $1 billion and the 2014 acquisition of WhatsApp for $19 billion have been cited as attempts to illegally eliminate competition. Furthermore, the complaint highlights the exclusionary trade conditions imposed by Facebook on third-party applications for using its Application Programming Interfaces (APIs). The case has been filed under S. 2 of the Sherman Act, 15 U.S.C. §2, which the F.T.C imposes through S. 5 of the FTC Act. Section 2 of the Sherman Act penalizes companies for using anti-competitive means to acquire or maintain a monopoly. The suit has been petitioned for a permanent injunction to restrain Facebook from imposing anticompetitive conditions on access to APIs and data, along with a prayer for divestitures of assets, including Instagram and WhatsApp.
DEFINING RELEVANT MARKET
Under every antitrust regime, abuse of dominance investigation begins with defining the relevant market. The relevant market is essentially a tool to identify and define the boundaries of competition between firms. In the instant suit, the personal social networking service is defined as the relevant product market along with the United States as the relevant geographical market. Interestingly, an attempt has been made to define the relevant product market as narrowly as possible. Three key elements have been highlighted that make personal social networking services market distinct from the market for other forms of online services:
That the personal social networking services are built on a ‘social graph’ that maps the connections between users and their friends, family, and other personal connections. This social graph forms the foundation upon which users connect and communicate with their connections. Personal social networking providers use this social graph to inform what content they display to users in the shared social space and when.
That the personal social networking services include features that many users regularly employ to interact with personal connections and share their personal experiences in a shared social space, including in a one-tomany “broadcast” format.
That the personal social networking services include features that allow users to find and connect with other users, to make it easier for each user to build and expand their set of personal connections.
Further, the suit has specifically distinguished the market for personal social networking with; the market for specialized social networking services like LinkedIn as these services are designed for and are utilized by a narrow and specialized set of users primarily for sharing a narrow and highly specialized category of content;
the market for online video or audio consumptionfocused services such as YouTube, Spotify, Netflix as users employ these for passive consumption and posting of specific media content (e.g., videos or music) from and to a wide audience of often unknown users. These services are not used primarily to communicate with friends, family, and other personal connections.
the market for mobile messaging services as these do not feature a shared social space in which users can interact, and do not rely upon a social graph that supports users in making connections and sharing experiences with friends and family.
The second step in an ‘abuse of dominance’ investigation is to assess the market strength enjoyed by the enterprise. The strength of an enterprise is usually assessed through a variety of factors. The FTC’s complaint takes under consideration two important factors i.e. market share and entry barrier, to show that Facebook holds a dominant position in the relevant market. The suit alleges that Facebook has maintained a dominant share of more than 60% in the U.S. personal social networking market since the time of establishment, until the present day.
The suit also alleges that Facebook’s dominant position in the U.S. personal social networking market is resilient, due to significant entry barriers, like direct network effects and high switching costs. A strong network effect is a significant entry barrier because the personal social network is generally more valuable to a user when more of that user’s friends and family are already members, and hence a new entrant faces significant difficulties in attracting a sufficient user base to compete with Facebook. Therefore, even an entrant with a “better” product often cannot succeed against the overwhelming network effects enjoyed by a dominant personal social network.
Another significant entry barrier is in form of high switching costs, which means that the users are reluctant to shift to a new service provider because they have already built connections and develop a history of posts and shared experiences, which they would lose by switching to another personal social networking provider. Thus, significant entry barriers in the market facilitate Facebook’s continuing dominance.
FTC has accused Facebook of using its dominance and strength to deter, suppress and neutralise competition by either acquiring its competitors or by imposing anticompetitive conditions that automatically drive its competitors out of the market.
FTC has alleged that due to the strong network effect existing in the digital market, a competing product can only become relevant at moments of social transition, for instance, with the advent of smartphones, there was a significant transition in personal social networking because smartphones were portable and offered integrated digital cameras, making social networking with family and friends through taking, sharing, and commenting on photographs via a mobile app optimized for that activity increasingly popular. However, Facebook was struggling to provide a strong user experience for this kind of personal social activity. It was built and optimized for desktop use, not smartphones, and its performance with sharing photos on mobile devices was weak. Facebook feared that its personal social networking monopoly would be toppled by a mobilefirst, photo-based competitor emerging and gaining traction. It was soon clear that Instagram was just that competitor and thus Facebook decided to buy than to compete. In sum, Facebook’s acquisition and control of Instagram represent the neutralization of a significant threat to Facebook Blue’s personal social networking monopoly and the unlawful maintenance of that monopoly by means other than merits competition.
Similarly, FTC’s complaint throws light on another social transition that started around 2010 in consequence of the increased popularity of smartphones. Consumers shifted from using traditional shortmessage-service (“SMS”) to using text messaging via the internet through overthe-top mobile messaging apps (“OTT Mobile Messaging Services”). At that time, Whatsapp was emerging as an increasingly popular OTT mobile messaging app. As a result, Whatsapp posed a threat to make a move into the personal social networking market. Facebook’s leadership feared that Whatsapp would serve as a path for a serious competitive threat to enter the personal social networking market as a mobile messaging app as it had reached sufficient scale and just by adding additional features and functionalities, it could enter the personal social networking market at competitive scale and undermine or displace Facebook’s social networking monopoly. Therefore, Facebook neutralized yet another threat by acquiring Whatsapp.
This conduct of Facebook deprived users of the benefits of competition from an independent Instagram or Whatsapp, which had the potential to penetrate the U.S personal social networking market. Moreover, Whatsapp’s strong focus on the protection of user privacy and Instagram’s unique functionality could have provided an important form of product differentiation for them to be an independent competitive threat in personal social networking.
The third aspect of the FTC’s complaint stresses on the imposition of unfair trade conditions by Facebook on access to its valuable platform interconnections – APIs, that it makes available to third-party software applications. To communicate with Facebook ((i.e., send data to Facebook, or retrieve data from Facebook) third-party apps must use Facebook APIs. FTC has alleged that for many years, Facebook has made key APIs available to third-party apps only on the condition that they refrain from providing the same core functions that Facebook offers, including Facebook Blue and Facebook Messenger, and also refrain from connecting with or promoting other social networks. These conditions have helped Facebook maintain its monopoly in personal social networking, in two ways:
First, these restrictive conditions have deterred thirdparty apps that relied upon the Facebook ecosystem, from including features and functionalities that might compete with Facebook or from engaging with other firms that compete with Facebook. This deterrence, according to FTC, suppresses the emergence of threats to Facebook’s personal social networking monopoly.
Second, the enforcement of these conditions by terminating access to valuable APIs hinders and prevents promising apps from evolving into competitors that could threaten Facebook’s personal social networking monopoly.
Facebook has responded to these charges in an extensive post calling these lawsuits as revisionist history. Facebook’s defence can be divided into two parts:
On the acquisition of Instagram and Whatsapp, Facebook primarily contends that the FTC which had itself approved the mergers years ago, cannot now retroactively kill those mergers. Moreover, Facebook has pressed on the defence of ‘consumer benefit’. It argues that both the acquisitions have resulted in better products for consumers. Since the merger, Instagram has grown over a billion users worldwide due to improved features and better experiences. Meanwhile, Facebook has enabled Instagram to help millions of businesses engage their customers and grow. Similarly, Facebook made WhatsApp free worldwide, adding valuable new features like voice and video calling, and making it more secure by encrypting it end-to-end.
On the accusation about the imposition of anti-competitive conditions, Facebook maintains that it had created this platform for innovation on which millions of developers have created new apps, but there are certain thirdparty apps which unfairly duplicate services already being provided by Facebook. The objective behind the imposition of such conditions is to only avoid the use of Facebook’s platform to essentially replicate Facebook. Moreover, these restrictions are standard in the industry, where platforms give restricted access to other developers, while many do not provide access at all, but all of this is only to prevent duplication of core functions.
REMEDYING THE DISTORTION OF COMPETITION BY A MERGER: WHAT DOES THE INDIAN REGIME HOLD?
The FTC’s lawsuit has attracted a lot of academic discussion on powers of antitrust authorities globally to kill mergers retroactively, which they once approved. Under the US Antitrust regime, the Hart-Scott-Rodino Act provides a mechanism for agency review of and preconsummation challenges to reported mergers through a challenge under S. 7 of the Clayton Act. Moreover, nothing in the statute prohibits the agencies from challenging a reported merger at some later stage, including after merger review, merger clearance, and merger consummation. In fact, Section 7(A)(i) of the Hart-Scott-Rodino Act states that any action under this section shall not bar any proceeding or any action with respect to such acquisition at any time under any other section of this Act or any other provision of law. Thus, by the express terms of Section 7(A)(i), the fact that the agencies reviewed and cleared a reported merger does not preclude the agencies from challenging the transaction at a later date.
This problem is more complex under the Indian competition regime as there is nothing like Section 7(A)(i) under the Indian Competition Act. Moreover, under the Indian merger control regime, the transaction which meet the jurisdictional threshold provided under Section 5 constitues a combination and requires the approval of the CCI, while the trasnations which do not neet the threshold limits of S. do not require prior approval. The Indian problem can be analysed in three parts; first, whether the CCI can hear an ex-post challenge to a previously approved combination; second, whether the CCI can hear an ex-post challenge to an unnotified transaction; and third, whether the CCI has the power to grant a structural remedy in terms of causing the breakup of the merged firm or divestiture of the assets of the enterprise. In cases of previously approved mergers, the statute gives a categorical power to the CCI to conduct an expost review of such a merger. Under S. 20(1), Commission can inquire into whether a notified combination under S. 5 has caused or is likely to cause an appreciable adverse effect on competition in India. However, the proviso restricts such review only up to one year of consummation. The question then arises is whether the commission can hear an ex-post challenge after a year of consummation? The answer may lie in S. 3(1) of the Act since the provision specifically includes an acquisition agreement. Therefore, even after a year of consummation, nothing precludes the CCI from conducting an ex-post facto analysis of the acquisition agreement under Section 3. Needless to say, it has to be shown that such trasncation has caused AAEC in the marketSimilarly, for unnotified mergers, since no provision restricts an ex-post review, the CCI has valid powers under S. 3(1) to check the anti-competitive effect of such agreement at any point of time. In India, the problem with the FacebookInstagram-Whatsapp acquisition was that it was never notified as it didn’t fall under the threshold limit and therefore the commission couldn’t even conduct an ex-ante review. However, looking at the wide powers under S. 3(1), the commission today may certainly look at the acquisition agreements in light of the factors under S. 19(3) and pass necessary orders.
On the question of powers of the commission to break up the enterprises, S. 27 and S. 28 of the Indian Competition Act gives the commission vide enforcement powers to remedy the distorted competition in the market. S. 28 empowers the commission to direct division of an enterprise enjoying a dominant position to ensure that such an enterprise doesn’t abuse its dominant position. Moreover, S. 27(g) empowers the commission to pass any order or issue any direction to remedy the abuse of dominance. Thus, by using these unequivocal powers given to it by the statute, CCI can impose structural remedies on already consummated mergers, causing the breakup of the merged firm or divestiture of some of the acquired assets.
It is one thing to see if the antitrust authorities theoretically possess the power to divest assets of a firm, and totally another thing to see if the antitrust authorities would use such power to demerge an enterprise. Despite the antitrust authorities’ ability to challenge reviewed and cleared mergers after the fact and the pro-competitive benefits of such ex-post challenges, the cases of such demergers are extremely rare. That’s the reason why the Competition and Markets Authority (“CMA”), even after finding tech giants abusing their dominance, didn’t take the responsibility of breaking them up. Technical experts have also vehemently argued against breaking up these tech giants as demergers might be counter-productive. Facebook has spent years integrating Instagram and WhatsApp: weaving their ad systems, user profiles, databases and other technology with Facebook. What to the public appear as distinct products are one giant social network on the back end. Therefore, the problem might not be solved only at the grant of prayer for demerger, the Courts would have to play a pivotal role in facilitating such de-merger, keeping in mind the importance of the tech-giant for the US economy. A famous line by an economist is worth keeping in mind, “it is dangerous to apply twentiethcentury economic intuitions to twenty-first-century economic problems”. Whether de-merger is the right solution or resorting to other remedies like compulsory licencing would be viable remains to be seen. However, in this process, one thing the authorities need to keep in mind is that the solution must cure the problem without compromising or disincentivising the innovation. It would be interesting to see how the court goes about developing the remedy package if it holds Facebook abusive of its dominant position.
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The basic structure of the constitution is sacrosanct
A retrospect on the Kesavananda Bharati case.
Constitutional supremacy is and has to be the bedrock upon which the edifice of a democracy rests. And if the foundation or the basic structure of the edifice is sought to be changed so as to invest one of the pillars of democracy with unbridled powers, the very edifice would tilt and consequently be weakened to the detriment of citizens and consequently of democracy. When however, an attempt is made to shift this balance, someone has to step in and play the role of a soldier, a saviour and consequently a titan so as to restore the balance. The titans to whom this article refers to in the context of the Constitution of India, have to surely be Kesavananda Bharati, the Judges of the Supreme Court that took the majority view and of course the legal genius Nani Palkhivala, who stood like colossuses in the face of the amendment to the Constitution which was the subject matter of challenge before the Supreme Court.
The passing away of His Holiness Kesavananda Bharati on the 5th of September,2020 brings down the curtain on the life of an individual whose memory shall be etched upon the minds of all those concerned with the Law, Judges, lawyers and politicians foremost amongst them, and of course, upon the minds of the Indian populace as a whole, who may not yet realise the immense contribution that the case that he helmed as a petitioner has had such a tremendous impact upon the politico legal landscape of our country.
Perhaps one of the greatest Constitutional cases that has been decided by the Supreme Court , and perhaps continuing to be so is the iconic case of His Holiness Kesavananda Bharati Sripadagalveru v. State of Kerala. That was a case that had the effect of stopping a legislature from running amok and imposing upon the citizens of this country, an Atlas like burden by seeking the right to amend and alter the basic structure of the Constitution, as per the whims and wishes of the legislature, which the Supreme Court thankfully and astutely halted in its tracks.
The challenge in the case was to the 29th Amendment Act , by virtue of which the Kerala Land Reforms Act, 1969 and the Kerala Land Reforms Amendment Act, 1971 were placed in the 9th Schedule to the Constitution. As a result, this brought into focus the issue as to whether the Golak Nath case had been rightly decided or not. The conflict started with the decision rendered by the Supreme Court in Golak Nath v. State of Punjab in 1967, where the Court held by a slim majority of 6 to 5 that the Parliament had no power to amend Fundamental Rights. The majority took the view that the law in Article 13(2) was inclusive of even a Constitutional law enacted by the Parliament in its powers under Article 368 of the Constitution.
On 5th November, 1971, the Parliament passed the 24th Amendment Act, which gave the right to amend the Constitution by amending Article 368 and Article 13, the effect of the amendment being to overrule the majority judgment in Golak Nath. As a result of this amendment, and as a corollary thereto, several legislations were amended, including the Kerala Land Reforms Act, 1971, which was sought to be inserted by the 29th Amendment Act , so as to place the Act in the 9th Schedule of the Constitution, in order to validate the provisions which had been overturned by the Kerala High Court. This laid the ground over and for the mine field of a direct confrontation between the Parliament and the Supreme Court.
With the challenge mounted to the Kerala legislations previously referred to, the challenge to the Golak Nath case was apparent in Kesavananda Bharati as it raised the question as to whether that case had been rightly decided. Whereas a bench of 11 Judges had decided the Golak Nath case, a bench of 13 Judges was constituted to hear the Kesavananda Bharati case. The stage was thus set for the decisive Battle Royale between the Parliament and the Supreme Court .
A marathon, in any sense of the term, the hearing of the case went on for a mammoth 66 days. It was decided with 7 judges taking the ‘Majority view’.The result upon conclusion being that though the decision in Golak Nath’s case that there is no implied limitation on the powers of Parliament to amend the Constitution, was reversed, it was emphatically held that no amendment can do violence to the basic structure doctrine. The words in the judgment are that “ Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution”.
11 judgments were rendered in the case which constituted a bench of 13 justices. This being a short article on the issue, it is neither possible or practicable to reproduce the divergent views expressed by the judges.
Many legal scholars and jurists have argued that the “ Note” which bears the signatures of the “majority” could not be considered as a majority view. But comity in justice or judicial comity being what it is, it can very safely be argued that since 6 judges held the view that there was a limitation on the amending power and since one judge, Justice H R.Khanna had emphatically held that parliament could not amend the basic structure or the framework of the Constitution, the judgment was therefore by a majority, with the decisive view of Khanna J, which could be considered as a ‘ swing vote’ if election terminology is used or the deciding vote , as he agreed in principle with the view and furthered it by stating the above. The resultant effect being that by virtue of and being propped up by the view of Khanna J, the Court held that the Basic Structure of the Constitution could not be tinkered with by the Legislature. It could be said that the merged views of the majority read with the view elucidated by Khanna J, therefore effectively was the view of the Court and sealed the fate of the amendment.
THE FALLOUT OF THE VERDICT
The judgment in the Kesavananda case was pronounced on 24th April, 1973. Chief Justice Sikri was to retire on 25th April,1973. Normally his successor Chief Justice would be named earlier. In a surprise development however, which may perhaps have been foreseen by them, three senior most judges, Justices Shelat, Hegde and Grover, were superseded and Justice A N.Ray was appointed as Chief Justice, whereas in the normal course, justice Shelat would have been appointed as Chief Justice. This happened on 26th April, 1973 and Justices Shelat, Hegde and Grover resigned on the same day at 4.00 p.m.
On 9th October, 1975, Chief Justice Ray passed an order that a bench of 13 Judges would hear a review petition. The hearing commenced on 10th November, 1975 and went on to the 11th of November. When the bench assembled on 12th November, as soon as the proceedings were called, the Chief Justice stated that “ this bench is dissolved”. Every person concerned with the hearing was caught by surprise. The review therefore paled and was put to rest. However, no record of the review is available.
Upon the retirement of Ray CJ, M H.Beg J, was appointed as Chief Justice, whereas H R.Khanna J, would have been appointed. He was however overlooked, perhaps because he had dissented with the majority view in ADM Jabalpur v. Shivkant Shukla. That case was, of course one where many around the country had been detained during the days of the emergency. Upon Habeas Corpus petitions being filed, High Courts had held that the writs were not maintainable as Article.21 of the Constitution had been suspended. When the matters were heard in the Supreme Court, in the above case, the majority held that the petitions were not maintainable. The lone dissent was by Justice H R.Khanna. He disagreed with the position of the majority that Art. 21 can be suspended by the declaration of Emergency.
He stated that, “without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning.” This dissenting judgment and the earlier view that he had taken in Kesavananda, cost Justice Khanna his Chief Justice ship. He too resigned.
The turn of the tide decades later is worth a mention here. The great American Judge, Charles Evan Hughes wrote that “A dissent in the court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” That is what happened in the case of K S.Puttaswami v. Union, which is known famously as the Right to Privacy case. The decision in ADM Jabalpur was overruled . Though judges do their duty when they decide cases, they never look to accolades or even recognition while doing so, but one cannot but wonder whether the indomitable spirit of the judge would surely be pleased that , even if quite a bit late, his words of dissent have prevailed with considerable and emphatic authority.
FRESH ATTEMPT TO UNDO THE DECISION IN KESAVANANDA
The matter in Kesavananda refused to die down . The powers that be were perhaps biding their time for an opportunity to have the judgment reversed.
The basic structure doctrine, evolved by the Court in Kesavananda was first tested in the case of Indira Nehru Gandhi vs Shri Raj Narain, where the Court applied the doctrine . By virtue of the 39th Amendment ,Parliament inserted Article 329-A in the Constitution, clauses (4) and (5) of which article barred judicial review of elections for the posts of President, Prime Minister, Vice President and the Speaker of The Lok Sabha. The Court struck down the clauses as being violative of the Basic Structure doctrine.
The 42nd Amendment was moved by the Government in order to once again tilt the balance of power and establish supremacy over . Rather than reproduce the same here, suffice it to say that the amendment once again sought to curtail the powers of the Courts. There was a change of Government at the Centre and the new Government brought in the 44th Amendment in order to do away with the earlier one. The 44th Amendment reversed the provision made by the 42nd Amendment that allowed the government to amend the constitution .
The controversy however, did not rest there. This was brought to the fore in the case of Minerva Mills v. Union of India. The mill had been nationalised and taken over by the Government. This was challenged. Again without going deeper into the whole controversy, suffice it to say that section 55 of the Amendment Act was challenged. This too was struck down. The Judges however deferred on the amendment to Article 31C. That , as yet remains a grey area according to Constitutional experts.
THE BASIC STRUCTURE DOCTRINE REMAINS, BUT WAS LATER REFINED BY THE SUPREME COURT
In a later decision in Waman Rao v. Union of India, soon after the decision in Minerva Mills, the Court held that the various Amendments by which additions were made to the 9th Schedule, would be valid only if they did not damage the Basic Structure of the Constitution.
That of course led to further issues. A Constitution Bench hearing the case of I R.Cohelo referred the matter to a larger bench. A bench of 9 Judges held that Amendments to the Constitution made on or after 24/4/1973 by which the Ninth Schedule is amended by inclusion of various laws..shall have to be tested on the basic or essential features of the Constitution……though an Act is put in the Ninth Schedule by a constitutional Amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure…
It was also further held that “ Justification for conferring protection…on the laws included….. shall be a matter of constitutional adjudication…..if the infraction affects the basic structure then such laws will not get protection of the Ninth Schedule”.
WHAT IS THE BASIC STRUCTURE?
The concept of basic structure is difficult to encapsulate. But what emerges from a perusal of the judgments of the Supreme Court is that some features of the Constitution lie at its core and are therefore sacrosanct. In the course of the hearing of Kesavanandas case, and as emerges from the judgment, some concepts as set out by the judges are what the basic structure refers to. I refer to some of them here. Supremacy of the Constitution, secular character of the Constitution, separation of powers between the legislature, executive and the judiciary, essential features of the individual freedoms secured to the citizens, secularism and freedom of conscience and religion.
The arguments advanced by Palkiwala in the Minerva Mills case are worth reproducing in an encapsulated form. He argued that giving primacy to the Directive Principles over Fundamental rights, had the effect of demolishing the basic structure. According to him, principles stated in the Directive Principles could only be achieved through permissible means, without infringing the provisions of Part III of the Constitution.
The Court stated that to destroy the guarantees given by Part III (Fundamental Rights) in order to purportedly achieve the goals of Part IV (Directive Principles) is to plainly subvert the Constitution by destroying its basic structure. And so holding, the Court held that Sections 4 and 55 of the 42nd Amendment Act, 1976 to be ultra vires the Constitution of India.
To put this in perspective. the Basic Structure is the base upon which the edifice of our Constitution stands. The structure is seen in the form of Fundamental Rights. If laws are made which have the effect of altering or altogether doing away with the Basic Structure Doctrine, then it would be perceived as an attack upon the Basic Structure and would not stand judicial scrutiny.
To further comprehend this. Article 44 of the Constitution speaks of the State endeavouring to have a Common civil Code. It is a Directive Principle. Why does it appear as a Directive Principle? The framers of the Constitution and the Constituent Assembly were aware of the plurality of religions in the country. They were aware of the various uncodified laws that existed. They were aware of public sentiment and the possible impact of foisting upon the citizens such a code. Thus it was placed as a Directive Principle with the words..The state shall endeavour. If the observations of the Court over the decades on a possible Common Civil Code are read, it becomes abundantly clear that though desirable as per Article 44, a code may not be practicable in view of public sentiment. In Lily Thomas v. Union of India the Court stated that-” In another decision, namely, Pannalal Bansilal Pitti v. State of A.P. “, this Court had indicated that enactment of a uniform law, though desirable, may be counter-productive. I refrain from reproducing excerpts from other judgments due to space constraints.
Dr. B. R. Ambedkar in the Constituent Assembly on 2nd December, 1948 at the time of making of the Constitution. While discussing the position of Common Civil Code, Dr. Ambedkar, inter alia, had stated in his speech that “. . . . . . . . . . . . .I should also like to point out that all that the State as claiming in this matter is a power to legislate. There is no obligation under the State to do away with personal laws. It is only giving a power.
He further stated in his speech as under :”We must all remember …that sovereignty is always limited, no matter even if you assert that it is unlimited, because sovereignty in the exercise of that power must reconcile itself to the sentiments of different communities’ The Constitution of our country gives us religious freedom. Our personal laws are woven around our diverse religions. That is a fundamental right. Thus even though the Common Civil Code is perceived in the Constitution, its practicability must be measured against public sentiment. It must also be looked at by the powers that be that we already have statutory personal laws in existence for many religions. If not in existence, they can be brought in by legislation for the religious denomination . In fact, the Law Commission of India itself in its report on the Common Civil Code stated through the then Chairman that instead of a code, changes in personal laws would be recommended.
Despite various attempts at different times, a Common Civil Code has been difficult to put into place. It has not been due to any appeasement but due to sensitive religious overtones . In fact, there are some petitions pending before a High Court seeking prayers that a Common Civil Code be formulated. The question arises as to whether such a petition based upon a Directive Principle can lie, when the Courts have held that one could prefer a writ when there is violation of a fundamental right. Let us suppose the High Court does not entertain the petitions on the ground of maintainability. But what if the petitions are entertained. Can the Court direct such implementation. I think not. If however, the court does recommend instead of directing, what will be the ultimate outcome? A political party has the Uniform Civil Code on its wish list.
Will the probable future taking away of personal laws and replacing them with a Common Civil Code amount to a violation of the fundamental rights of the guarantee of religious freedom? Can and more particularly, should it be done? Does it go against the Basic Structure Doctrine?
Do we have another Kesavananda Bharati waiting to happen in the wings, and alongside him another incarnation of N A.Palkiwala ?
Only time will tell.
The judgment in the Kesavananda case was pronounced on 24th April, 1973. Chief Justice Sikri was to retire on 25th April,1973. Normally his successor Chief Justice would be named earlier. In a surprise development however, which may perhaps have been foreseen by them, three senior most judges, Justices Shelat, Hegde and Grover, were superseded and Justice A N.Ray was appointed as Chief Justice, whereas in the normal course, justice Shelat would have been appointed as Chief Justice. This happened on 26th April, 1973 and Justices Shelat, Hegde and Grover resigned on the same day at 4.00 p.m.
‘Dependent’ mother-in-law of a deceased can maintain motor accident claim petition: SC
In a cogent, convincing, commendable, courageous and composed judgment titled N Jayasree & Ors vs Cholamandalam Ms General Insurance Company Ltd in Civil Appeal No. 6451 of 2021 (Arising out of S.L.P. (C) No. 14558 of 2019) in exercise of its civil appellate jurisdiction delivered most recently on October 25, 2021 has minced no words to observe that a motor accident claim petition filed by mother in law who was dependent on her deceased son in law is maintainable. We saw earlier how in this very noteworthy case, the Kerala High Court had ruled that mother in law of the deceased is not a legal representative under Section 166 of MV Act and thus not entitled to maintain the claim petition. While overruling what was held by the Kerala High Court and holding that she is a “legal representative” under Section 166 of the Motor Vehicles Act, the Bench of Apex Court comprising of Justice S Abdul Nazeer and Justice Krishna Murari observed quite rightly and candidly that, “It is not uncommon in Indian Society for the mother-in-law to live with her daughter and son-in-law during her old age and be dependent upon her son-in-law for her maintenance.”
To start with, this judgment authored by Justice S Abdul Nazeer for himself and Justice Krishna Murari sets the ball in motion by first and foremost putting forth in para 2 that, “This appeal is directed against the judgment dated 09.08.2017 passed by the High Court of Kerala at Ernakulam in MACA No. 1560 of 2013. Through the impugned judgment, the High Court scaled down the amount of compensation payable to the present appellants and thereby modified the award dated 26.04.2013 passed by the Motor Accident Claims Tribunal, Kottayam (for short ‘MACT’) in OP(MV) No. 843 of 2011.”
As we see, the Bench then discloses in para 3 that, “The appellants filed the aforesaid claim petition before the MACT seeking compensation on account of the death of N Venugopalan Nair in a motor vehicle accident which occurred on 20.06.2011. Appellant no. 1 is the wife of the deceased, appellant nos. 2 and 3 are his daughters and appellant no. 4 is his mother-in-law.”
To be sure, the Bench then states in para 4 that, “There is no dispute as to the occurrence of the accident and the liability of the respondent-insurer to pay the compensation. In view of this admitted position, it is unnecessary to narrate the factual aspects of the accident.”
Briefly stated, the crux of para 5 is that, “The deceased was aged 52 years at the time of the accident. The MACT took the annual salary of the deceased as Rs. 8,87,148. To this, the MACT applied a multiplier of ‘11’ and deducted one-fourth (1/4th) of the income towards his personal expenses for the purpose of calculation of the compensation under the head of loss of dependency. A total sum of Rs. 73,18,971/ (Rupees seventy three lakhs eighteen thousand nine hundred seventy one only) was awarded towards loss of dependency. The MACT awarded a total sum of Rs. 74,50,971/ (Rupees seventy-four lakhs fifty thousand nine hundred seventy one only) towards compensation with interest @ 7.5 percent per annum from the date of the claim petition till the date of realization.”
To put things in perspective, the Bench then discloses in para 6 that, “However, the High Court held that appellant no. 4 was not a legal representative of the deceased. Further, the High Court held that the MACT ought to have applied split multiplier for the assessment of the dependency compensation. The High Court fixed monthly income of the deceased as Rs. 40,000/ (Rupees forty thousand only) and deducted one-third (1/3rd) of the income towards his personal expenses. It applied multiplier ‘7’ for calculating dependency compensation for the post-retiral period and, for the pre-retirement period, a multiplier of ‘4’ was applied. Accordingly, the High Court awarded compensation of Rs. 23,65,728/ (Rupees twenty-three lakhs sixty-five thousand seven hundred twenty-eight only), towards loss of dependency for pre-retiral period and a sum of Rs. 22,40,000/ (Rupees twenty-two lakhs forty thousand only) towards loss of dependency for post-retiral period. A sum of Rs. 1,00,000/ (Rupees one lakh only) was awarded towards loss of consortium, Rs. 25,000/ (Rupees twenty-five thousand only) towards funeral expenses, and Rs. 80,000/ (Rupees eighty thousand only) towards loss of love and affection. In total, a sum of Rs. 48,39,728/ (Rupees forty-eight lakhs thirty-nine thousand seven hundred twenty-eight only) was awarded as compensation by the High Court.”
Quite significantly, the Bench then hastens to add in para 10 that, “The provisions of the Motor Vehicles Act, 1988 (for short, “MV Act”) gives paramount importance to the concept of ‘just and fair’ compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of ‘just compensation’ which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant/s. In Sarla Verma (Smt.) and Ors. vs. Delhi Transport Corporation and Anr. (2009) 6 SCC 121, this Court has laid down as under:
“16. … “Just compensation” is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit.”
It is worth noting that the Bench then observes in para 14 that, “The MV Act does not define the term ‘legal representative’. Generally, ‘legal representative’ means a person who in law represents the estate of the deceased person and includes any person or persons in whom legal right to receive compensatory benefit vests. A ‘legal representative’ may also include any person who intermeddles with the estate of the deceased. Such person does not necessarily have to be a legal heir. Legal heirs are the persons who are entitled to inherit the surviving estate of the deceased. A legal heir may also be a legal representative.”
More specifically, the Bench then adds in para 15 that, “Indicatively for the present inquiry, the Kerala Motor Vehicle Rules, 1989, defines the term ‘legal representative’ as under:
“Legal Representative” means a person who in law is entitled to inherit the estate of the deceased if he had left any estate at the time of his death and also includes any legal heir of the deceased and the executor or administrator of the estate of the deceased.”
What’s more, the Bench then concedes in para 17 that, “It is settled that percentage of deduction for personal expenses cannot be governed by a rigid rule or formula of universal application. It also does not depend upon the basis of relationship of the claimant with the deceased. In some cases, the father may have his own income and thus will not be considered as dependent. Sometimes, brothers and sisters will not be considered as dependents because they may either be independent or earning or married or be dependent on the father. The percentage of deduction for personal expenditure, thus, depends upon the facts and circumstances of each case.”
Broadly speaking, the Bench then envisages in para 16 that, “In our view, the term ‘legal representative’ should be given a wider interpretation for the purpose of Chapter XII of MV Act and it should not be confined only to mean the spouse, parents and children of the deceased. As noticed above, MV Act is a benevolent legislation enacted for the object of providing monetary relief to the victims or their families. Therefore, the MV Act calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfil its legislative intent. We are also of the view that in order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency. Section 166 of the MV Act makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for realization of compensation.”
Most commendably and also most significantly, the Bench then could not refrain itself from holding in para 21 that, “Coming to the facts of the present case, the fourth appellant was the mother-in-law of the deceased. Materials on record clearly establish that she was residing with the deceased and his family members. She was dependent on him for her shelter and maintenance. It is not uncommon in Indian Society for the mother-in-law to live with her daughter and son-in-law during her old age and be dependent upon her son-in-law for her maintenance. Appellant no. 4 herein may not be a legal heir of the deceased, but she certainly suffered on account of his death. Therefore, we have no hesitation to hold that she is a “legal representative” under Section 166 of the MV Act and is entitled to maintain a claim petition.”
In conclusion, we saw how aptly the Apex Court also ably cited the earlier judgments in Hafizum Begum (Mrs) vs Mohd. Ikram Heque (2007) 10 SCC 715 and Gujarat State Road Transport Corporation Ahmedabad vs Ramanbhai Prabhatbhai (1987) 3 SCC 234 and Montford Brothers of St Gabriel and Anr. vs United India Insurance (2014) 3 SCC 394 to put across what is held brilliantly in para 21. So we thus see that the Bench finally allowed the appeal. In other words, the claim of dependent mother-in-law who was dependent on her deceased son-in-law claim was upheld and thus she was held entitled to maintain motor accident claim petition. Very rightly so!
To put things in perspective, the Bench then discloses in para 6 that, “However, the High Court held that appellant no. 4 was not a legal representative of the deceased. Further, the High Court held that the MACT ought to have applied split multiplier for the assessment of the dependency compensation. The High Court fixed monthly income of the deceased as Rs. 40,000/ (Rupees forty thousand only) and deducted one-third (1/3rd) of the income towards his personal expenses. It applied multiplier ‘7’ for calculating dependency compensation for the post-retiral period and, for the pre-retirement period, a multiplier of ‘4’ was applied. Accordingly, the High Court awarded compensation of Rs. 23,65,728/ (Rupees twenty-three lakhs sixty-five thousand seven hundred twenty-eight only), towards loss of dependency for pre-retiral period and a sum of Rs. 22,40,000/ (Rupees twenty-two lakhs forty thousand only) towards loss of dependency for post-retiral period. A sum of Rs. 1,00,000/ (Rupees one lakh only) was awarded towards loss of consortium, Rs. 25,000/ (Rupees twenty-five thousand only) towards funeral expenses, and Rs. 80,000/ (Rupees eighty thousand only) towards loss of love and affection.”
ARYAN KHAN DESERVES BAIL, NOT JAIL
“Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of the criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally, it is the duty of courts across the spectrum-the district judiciary, the High Courts, and the Supreme Court to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts must be alive to both ends of the spectrum-the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of media, and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting”, the Supreme Court had categorically observed in the Arnab Goswami case a year ago. Not only this, but the Apex Court had also reiterated its view that bail should be a rule and jail an exception. “As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression”, the Court had demonstrated the collective judicial approach regarding grant of bail to the accused persons given the presumption of innocence. Unfortunately, the Special NDPS Court of Bombay forgot these jurisprudential principles when it refused bail to Aryan Khan week.
The Special NDPS Court of Bombay has denied bail to Aryan Khan in a case that is based on weak evidence. It is nothing but a complete departure from the Supreme Court’s guidelines laid down in several cases. Admittedly, Aryan Khan’s innocence or guilt can only be proved through a trial. On 2 October this year, Aryan was detained by the Narcotics Control Bureau in a drug bust on a cruise ship even though no drugs were found in his possession. The NCB has not yet collected any substantive evidence against him except the WhatsApp chats. There is no evidence to suggest that he was consuming drugs at the time of his arrest by the NCB. No blood test was conducted. He has no previous criminal history. The NDPS law distinguishes between a drug consumer and peddler and forbids treating the former as hardened criminals. Sadly, the NCB is treating him like a hardened criminal. The NCB has charged Aryan and his friends with “conspiracy” under the NDPS law without any solid evidence on record. Also, to justify his arrest, the NCB has applied a unique theory of “conscious possession” because it recovered 6-gram charas from his friend. How can the NCB shift the liability to Aryan Khan if his friend has possession of drugs? The term “conscious possession” is not defined under the NDPS Act. The Courts hardly believe this jurisprudence of conscious possession. Thus, the whole case of the NCB is based on WhatsApp chats which can be used only in the trial, not in a bail adjudication. The WhatsApp chats are used by the NCB against Aryan Khan without a certificate under Section 65-B of the Evidence Act. This is why the Court should not rely on WhatsApp chats blindly and should give the benefit of doubt to Aryan Khan.
This is not the first time when the NCB arrested a person relying mainly on WhatsApp chats. The NCB has also done it in some other cases. Last year, the NCB had arrested Rhea Chakraborty in a drug case based on WhatsApp chats. After a month, she was released by the Bombay High Court when the NCB failed to convince the Court to reject her bail application. She was booked under Section 27 A of the NDPS Act, being involved in financing drugs and she had faced a severe media trial. “She is not part of drug dealers. She has not forwarded the drugs allegedly procured by her to somebody else to earn monetary or other benefits”, the High Court had categorically observed while releasing her on her bail. Not only this, but the Bombay High Court had also dismissed the NCB’s charges as “highly disproportionate” and “extremely unreasonable”. The High Court did not approve the NCB’s argument that “celebrities” should be treated harshly and made an example of, saying that no actor must “incur any special liability” in the eyes of the law. It seems the NCB did not take any lessons from Rhea Chakraborty’s case and arrested Aryan Khan without sufficient evidence. Many people believe that he is also paying price for being a celebrity and son of a famous Bollywood actor. This is a dangerous trend that undermines people’s faith in the criminal justice system. Keeping a young man in jail merely based on WhatsApp chats is nothing but a gross misuse of criminal law. Aryan Khan belongs to a well-respected family who deserves bail subject to reasonable conditions. He is a young man who needs to be allowed an opportunity to live a dignified life. Putting him in jail will not serve any purpose. He deserves an opportunity to defend his case being a free citizen and the Court should adopt a humane attitude while dealing with his bail application. In an exclusive interview with India Today, former Attorney-General for India Mukul Rohatgi has also opined that Aryan Khan deserves to get bail.
Given the above discussion, it is submitted that criminal law should not be used as a weapon to harass citizens. All citizens should be treated equally and law enforcement agencies should arrest those who commit criminal offences based on solid evidence, not on inconclusive pieces of digital chats, etc. An arrested person faces a difficult situation in Indian society. The Supreme Court has rightly stated in some cases that a great ignominy, humiliation, and disgrace are attached to arrest. Arrest leads to many serious consequences not only for the accused but also for his family and friends. Mostly, the people do not make any difference between arrest at a pre-conviction stage and post-conviction stage. This is why the arresting power must be used cautiously, not according to the whims and fancies of the law- enforcement agencies and the Courts should decide the bail applications expeditiously. The time has come when the judiciary should stand up for protecting the personal liberty of people and the law-enforcement agencies should investigate the cases professionally. Let me conclude this piece with these insightful words of Justice V. R. Krishna Iyer in the Babu Singh case: “The correct legal approach has been clouded in the past by focus on the ferocity of the crime to the neglect of the real purposes of bail or jail and indifferent to many other sensitive and sensible circumstances which deserve judicial notice. The whole issue, going by decisional material and legal literature has been relegated to a twilight zone of the criminal justice system. Courts have often acted intuitively or reacted traditionally, so much the fate of applicants for bail at the High Court level and in the Supreme Court, has largely hinged on the hunch of the bench as on the expression of ‘judicial discretion’. A scientific treatment is the desideratum. The Code is cryptic on this topic and the court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety, and burden on the public treasury, all of which insists that a developed jurisprudence of bail is integral to a socially sensitized judicial process…Personal liberty deprived whom bail is the value of our constitutional system recognised under Article 21 that curial power to negate it is a great trust exercisable, not casually but judicially, with a lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble, decisive of a fundamental right. After all, the personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of “procedure established by law”. The last four words of Article 21 are the life of that human right”.
Lokendra Malik, Sr Advocate, Supreme Court of India
DECODING THE CONCEPT OF BAIL UNDER THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT (NDPS), 1985
The Narcotics Drugs and Psychotropic Substances Act (NDPS ACT) 1985 was enacted within the year 1985, with a view to consolidate and amend the law concerning narcotic drugs, incorporating stringent provisions for control and regulation of operations concerning narcotic drugs and psychotropic substances.
Bail are often understood as a procedure by which a judge or magistrate sets free someone who has been arrested or imprisoned, upon receipt of security to make sure the released prisoner’s later appearance in court for further proceedings. The money set by the judge is within the sort of a bail, it’s set after hearing the fees and determining the quantity appropriate for the circumstances.
NDPS Act categorizes the offences into Three Categories: –
Small Quantity: –As per section 37 of the NDPS Act, 1985 all the offences falling under the act are cognizable and non-bailable. Meaning thereby, if we pass section 37 of the NDPS Act,1985 even the matters concerning small quantity are non-bailable.Hon’ble Delhi High Court for the first time in Minnie Khadim Ali Kuhn vs State Nct Of Delhi & Ors. on 8 May, 2012 has held that the matter involving small quantity are bailable regardless of the very fact that it’s mentioned within the NDPS ACT, 1985 that each one offences are cognizable and non-bailable.
Intermediate Quantity (less than commercial)
For the offences falling under the intermediate or but commercial quantity stringent provisions of section 37 aren’t attracted and therefore the offences under the said category are governed by Section 437 of the Code of Criminal Procedure,1973 i.e. general principles for grant of bail as applied in other cognizable and non-bailable offences.
Commercial quantity offences are punishable with not but 10 years and there’s an embargo of Section 37 of the NDPS, 1985 in thus far because the bail in commercial quantity is concerned.
THE DETAILED BREAKDOWN OF SECTION 37 IS AS FOLLOWS:
1. The section states every offence punishable under the Act shall be cognizable.
2. No person accused of an offence punishable for [offences under section 19 or section 24 or section 27-A and also offences involving commercial quantity] shall be released on bail or on his own bond, unless the following conditions are met.
3. For granting bail, the following conditions are to be met,
(i) There are reasonable grounds for believing that the accused isn’t guilty of such offence.
(ii) That he’s unlikely to commit any offence while on bail.
The jurisdiction of the court to grant bail is circumscribed by the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The scheme of Section 37 reveals that the exercise of power to grant bail isn’t only subject to the restrictions contained under Section 439 of the Code of Criminal Procedure (CrPC), but is additionally subject to the limitation placed by Section 37, which begins with a non-obstante clause.
CONSIDERATIONS FOR GRANTING BAIL UNDER NDPS ACT:
Before granting bail, the Court is named upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence which he’s not likely to commit any offence while on bail, the allegations of the fact, the police report have to be closely examined before recording a finding as to whether the conditions given under the said section, are fulfilled or not.
Powers of the High Court under Sec. 439 of CrPC are curtailed in any way except that they are to be exercised with embargo and conditions as laid down under Sec. 37 of the Act.Ordinarily, on a bare reading of these provisions, it would look as if the Court is to adopt a negative approach and to decline bail but when the legislature have required the court to record a finding of its satisfaction of certain facts, the duty is bestowed upon the court is in positive terms. Grant of Bail could be a rule and its rejection an exception.
GROUNDS FOR CANCELLATION OF BAIL:
What has been stated in Section 37 of the Act would be applicable, accordingly when the question of release on bail is considered. But once an accused has been released on Bail, the normal criminal law would spring into action and bail would be open to be cancelled only on the grounds on which Bail can be otherwise cancelled.The important grounds for cancellation of Bail are:i. Where the accused misuses his liberty by getting involved in similar criminal activity,ii. Interferes with the course of investigation,iii. Attempts to tamper with evidence or witnesses,iv. Likelihood of fleeing, etc.
HOW COURTS HAVE DEALT WITH THE MATTERS PERTAINING TO BAIL?
The bench of DY Chandrachud and BV Nagarathna, JJ has elaborately discussed the principles governing the grant of bail, especially in cases under the NDPS Act and has held that, “the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he’s likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and so as to curb the menace of drug-trafficking within the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.”
In the case of Union of India v. Shiv Shanker Kesar, (2007) 7 SCC 798Holding that bail may be cancelled if it has been granted without adhering to the parameters under Section 37 of the NDPS Act, the Court observed,“The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression means something quite clear grounds. It connotes substantial probable causes for believing that the accused isn’t guilty of the offence charged and this reasonable belief contemplated successively points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused isn’t guilty of the offence charged.The word “reasonable” has in law the clear meaning of reasonable in reference to those circumstances of which the actor, called on to act reasonably, knows or need to know. It is difficult to offer a particular definition of the word “reasonable”.
In the ultimate analysis it’s a matter of fact, whether a specific act is reasonable or not depends on the circumstances during a given situation. (Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [(2003) 6 SCC 315]The court while considering the appliance for bail with regard to Section 37 of the Act isn’t called upon to record a finding of acquitted. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is named upon to ascertain if there are reasonable grounds for believing that the accused isn’t guilty and records its satisfaction about the existence of such grounds. But the court has to not consider the matter as if it’s pronouncing a judgment of acquittal and recording a finding of acquitted.”
Section 37 of the NDPS Act works as an interference when it comes to offences related to medicines. It’s necessary because it leads to the creation of fear among people that if they commit a crime under this Act, they won’t be granted bail. On the other hand, this provision occasionally becomes draconian as innocent people get jugged. Therefore, the bar needs to borrow an exemplary principle to insure justice. he Narcotic Drugs and Psychotropic Substances Act, 1985 was enacted with the objective of controlling and regulating the transportation, usage and/or consumption of these illicit substances.
Let’s analyse the new information technolgy 2021 rules for social media
Social Media firms in India have to comply with the New Information Technology ((Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 which was released by the Government of India on 21 February, 2021. These rules have been framed in exercise of powers conferred under Section 87 (2) of the Information Technology (IT) Act, 2000.Social Media Firms were given three months to implement these new Information Technology Rules by the Government. In 2000, Information Technology was limited to electronic document, e-signature and digital authentication of records. Social Networking Firms arrived in India in 2005. Internet access at home by people of India has increased since 2010 and the cost of data per Gega Byte was also decreased with the introduction of 4G internet.
There is an urgent need to look into this matter so the Government of India has passed new rules under IT Act, 2000 and introduced Section 69A(2), 79(2)(c) and 87 in the Act. New Information Technology(Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has replaced the IT Rules, 2011. These new IT Rules, 2021 has directed social media platforms to strictly adhere to the guidelines but currently no social media firm has complied with the IT Rules 2021. AS we all know, every action has a positive and negative aspect and similar is applicable in this instance too. This article gives a bird’s eye view on the New IT Rules 2021, its advantages and glaring ambiguities which appears to be in conflict with the fundamental rights and basic principles of a democratic country.
WHY THERE IS A NEED OF NEW INFORMATION TECHNOLGY RULES, 2021
New Information Technology Rules 2021 is set to empower the ordinary social media users and the main goal of the IT Rules are on the protection of women and children, false spreading of fake news and misuse of social media. Social media has become an integral part of an individual’s life.As we all know that, the engrossment of each individual on these social media platforms have massively increased and thereby lead to the emerging of new challenges like offence against women and children, threat to the security and integrity of the state etc.With such a large user base, tech firms cannot afford to overlook new and developing concerns such as the continuing dissemination of false news, widespread abuse of platforms to post manipulated photos of women, deep fakes, and other content that threatns the dignity of a women and poses a security risk. Since 2020, there are around more than 25000 videos of child sexual abuse content which is circulated on the social media platforms.
In India, there is no regulatory authority to monitor and manage the offensive content on the social media firms and hence, the government decided to put these intermediaries on the same pedestal like Press Code and Program Code under CableTelevision Networks Regulation and Central Film Certification Board.Considering such arising difficulties,In Tehseen S. Poonawalla v/s Union of India case, Supreme Court guided the public authority to control and stop dispersal of explosive messages and recordings on different web-based media stages which tend to induce violence or mob lynching. In 2017, Court saw that the public authority may outline essential rules to stop child pornography, rape and rape images,recordings and sites in content hosting platforms and other applications. So, after considering all the concerns and keeping in mind the Supreme Court directions in case laws, Government implemented New Information Technology Rules, 2021 to get rid of these serious concerns.
OVERVIEW OF NEW INFORMATION TECNOLOGY RULES 2021
Government of India made new guidelines under Information Technology Rules 2021 for social media intermediaries as they believed that it was the need of the hour. The new guidelines are:
* Social Media Divided in two groups on the basis of the number of users i.e.
SOCIAL MEDIA INTERMEDIARIES (LESS THAN 50 LAKH USERS)
Significant Social Media Intermediaries(More than 50 lakh users or 5 million registered users.
Here, Social Media companies are referred as Intermediaries as they create link between the people.
* Due diligence to be followed by the intermediaries to be extra cautious that they allow their user to post on their handle.If social media firms don’t follow this guideline then they end up in loosing their immunity under Safe Harbour Provisions defined in Section 79 of the Information Technology Act. Section 79 of the IT Act function both as an immunity and a restrictive provision for social media companies.
*Social Media firms mandatory appoint a Grievance Redressal Officer who will act as a mediator between Government of India and social media. These grievance officer acknowledge any complain received from the government within 24 hours and resolve it within 15 days from its receipt.
*Social Media firms had to ensure online safety and dignity to the users thereby removing or disable the access of content which exposes the private area of an individual or show some individual in partial or full nudity or some sexual act or si in the nature of impersonation including morphed images within 24 hours of receiving complaint. The complaint can be filed either by an individual or any other person on his/her behalf.
* Social Media Firms should appoint a Chief Compliance Officer, Nodal Contact Person and Resident Grievance Officer and they should be resident of India. Government had instructed the intermediaries to publish new monthly compliance report which contains all the details about complaints received and action taken.
*Government has instructed Significant Social Media Intermediaries to provide information of the first originator in case if the content which is posted threatns the sovereignty and integrity of India, security of the state, disturbs friendly relations with any country, disturbs public order by incite riots, or any kind of offence in relation with rape, sexually explicit material or child sexual abuse material. Social media is bound to give the information of the first originators to Indian Law Enforcement Agencies in these particular cases.
*Government had instructed intermediaries to remove unlawful information upon receiving an court order or being notified from appropriate government if it threatens the sovereignty and integrity of India, security of the state, disturbs friendly relations with any country, disturbs public order by incite riots, or any kind of offence in relation with rape, sexually explicit material or child sexual abuse material.
PROS AND CONS OF IT RULES 2021
The new IT Rules also known as the “Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code )Rules , which was issued by the government contains some advantages & some disadvantages. Let’s discuss them in brief.
IT Rules 2021 curbs the problem which is created by the rapid growth of child pornography, hate speech, spread of misinformation and digital bullying on the platform of Digital World. These rules empowers the government to regulate the uncensored media platforms such as Netflix, Amazon Prime, The Wire, The Print, WhatsApp, Telegram. In order to regulate social media content, the government can ask the platform to disclose the originator of the message as per the new IT Rules. It also removes the bad content and helps people in gaining accurate knowledge through social media and also keeps children away from watching sensitive content which will have negative impact on them. OTT platforms will self-classify contents into five age-based categories: U(Universal), U/A 7+(yrs), U/A 13+, U/A 16+ and A(adult). There will also be parental lock for any content classified as U/A 13+ or above. It provides guidelines for setting up of dispute resolution mechanism for the removal of content. It removes non-consensual intimate pictures within 24 hours and also releases compliance reports to increase transparency.
One of the main disadvantage of new IT Rules 2021 is that it infringes the fundamental right to privacy of many users on social media platform as it allows the intermediaries to break end-to-end encryption of WhatsApp to track the “first originator “of the information whenever asked by the government under Section 69A of the IT Act[Rule 4(2)]. These rules also curtail the fundamental right to free speech of the digital news media because of the involvement of the government. There is excessive control over digital news and OTT content.
NEW IT RULES VIS A VIS ARTICLE 19 OF INDIAN CONSTITUTION
The new IT Rules 2021 was made with aim to protect citizens from cybercrime and digital bullying, but on the contrary rules end up in violating the fundamental right to privacy and freedom of speech and expression guaranteed under Article 19 of the Indian Constitution. After the New IT Rules were passed Government gave a time period of three-months to comply and share the details of the compliance with the new IT Rules. But some social media platforms and digital news entities are against the law as according to them it violates the privacy of the customers and restricts their freedom of speech and expression. And hence, the case was filed against the Government in the Delhi High Court by Whatsapp on the ground that new rules violates the user’s privacy. Some Digital News Media like The Wire, LiveLaw and The Quint also challenged the new Intermediary Guidelines and Digital Media Ethics Code.
Whatsapp has raised its serious concern regarding the provision of “traceability”. As per the provision, the social media intermediary is required to identify the “first originator of information” of messages when required to do so by the authorities. For this to be done , the intermediaries will have to break the end-to-end encryption, which in turn weakens the security and privacy of its users.
As per, Sec 3 & Sec 4 of the new IT rules, the intermediaries will have to remove the online content when asked by the government through notice. This will violate the right to free speech under Article 19 of the Indian Constitution, as now the government will regulate all online speech & any discussion against government will be muted.
Twitter has also expressed its concern with regard to the violation of free speech by the new rules. It put forth a condition that if the new rules will be guided by principles of transparency and freedom of expression under the rule of law, then only it will comply with the law.
The new IT Rules 2021 has both the positive and negative impacts on the society. But violating the fundamental right to privacy & freedom of speech can hamper the democracy of the country.
New Information Technology Rules 2021 is set to empower the ordinary social media user and the main goals of the IT Rules are the protection of women and children, stop spreading of fake news and misuse of social media. Social media has become an integral part of an individual’s life.
Enforcement of foreign arbitral awards in India
Arbitration proceedings in India were primarily governed by three main legislations namely the Indian Arbitration Act 1940, the Arbitration (Protocol and Convention) Act 1937 and the Foreign Awards (Recognition and Enforcement) Act 1961. The purpose of enacting the mentioned legislations was to comply with international standards of recognition and enforcement. This would ensure that India progressed in its goal towards becoming a pro-arbitration regime. Having ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 as well as the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927, it was incumbent upon India to enact appropriate legislation to implement the provisions of these Conventions in letter and spirit. This resulted in the enactment of The Arbitration and Conciliation Act, 1996 (hereinafter the Arbitration Act) – the sole statutory instrument governing the recognition and enforcement of arbitral awards in the Indian subcontinent. The comprehensive 1996 Act replaced the previous three legislations and bolstered India’s strategic position as a hub for International Commercial Arbitration (hereinafter ICA).
Arbitration proceedings can often be mired with a number of issues brought about by a conflict in jurisdiction, thereby making unlikely for parties to resort to litigation owing to the complexity of such disputes. The impact of the arbitration proceedings is also determined by the agreement, mutually agreed to by the parties, governing the dispute as well as the powers vested with the tribunal to settle issues related to jurisdiction – where the awards may be recognised and subsequently enforced. Parties to such a dispute are often reluctant to rope in the judiciary of their respective domestic jurisdictions as it would result in a loss of autonomy of the arbitration tribunal to the judiciary. The very purpose of creating such an alternate dispute resolution mechanism was to prevent intrusion by the judiciary. Arbitration was to serve as a forum for the fast-tracked settlement of commercial transactions between (mostly) private parties.
In this article, I shall examine whether the intention of reducing judicial interference in the enforcement stage, of arbitral awards, has remained intact. I shall specifically limit my piece to the 1996 Act that deals with the enforcement of foreign awards in India.
Analysing the scope of International Commercial Arbitration in India
Before delving into judicial trends regarding the enforcement of foreign awards, it is important to mention that Part II of the 1996 Act is following the prescribed guidelines of the New York and Geneva Conventions, thereby effectuating the same. India is not a signatory to any treaty that mandates that the country recognise the enforcement of foreign awards. Had India been a party to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States [(Washington, 1965) hereinafter ICSID Convention], the circumstances would have been different as it would have to adhere to its provisions and ensure that foreign arbitral awards are recognised and enforced by its domestic statutes.
It is of utmost importance to lay down the purview of ICA and what proceedings and substantial laws can be brought within its scope. ICA refers to arbitral proceedings pertaining to issues emerging out of legal alliances – contractual or otherwise, that are deemed commercial within Indian law or in which at least one of the disputing parties is a person who is now a citizen of, or continually resides in, any nation apart from India; or a corporate entity that is established in any nation apart from India. The Supreme Court, in the case of R. M. Investment Trading Co. Pvt. Ltd. v. Boeing Co, dealt with the parameters defining a commercial transaction. In its judgment, the Court went on to highlight the practice that influences the framework of business relationships, emphasizing that international commerce is more than just the movement of commodities with contemporary complexities. The Supreme Court decided, in accordance with the same reasoning, that a commercial purchase is deemed to be the advisory service for advertising sales and therefore any conflict of this sort arises.
One of the significant benefits of ICA is its cross-border enforceability. In other terms, an award made in one nation can be easily transferred to others and executed. The predominant cause of this convenience of compliance is the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, that has over one hundred ratified states as of today. The New York Convention requires all international arbitral awards to be recognized if they follow such minimum prerequisites.
The term “intervention” may never seem to be sufficient because arbitration is a legal process founded on the sovereignty of the stakeholders and is accepted by statute as an acceptable method of settling conflicts. As a result, the function of the judiciary must be confined to assisting the arbitral tribunal in achieving the goal of resolution. The sovereignty of the stakeholders to consent on the “laws of the proceedings” is perhaps the main basic concept guiding the Model law. This appreciation of the stakeholders’ rights is the culmination of public policy tailored to international practice, as well as the acknowledgement that arbitration is based upon on stakeholders’ arrangement. While it has been identified that judiciary have all the authority to overturn arbitral awards if they violate any constitutional clause, are patently unconstitutional, or violate India’s policy decisions.
Recognition & Enforcement of Arbitral Awards in India
There have been primarily two main distinctions among enforcing an international award and enforcing a domestic award. As previously mentioned, a domestic award would not necessitate a request for compliance. Once the challenges (if any) are overruled, the grant will be executed as a decree of its own. An international award, on the other hand, must go via a compliance process. The group demanding enforcement must submit an appeal for the same. If the court determines that the international award is enforceable, this becomes a court order which is effective as such. Another distinction among the domestic and international regimes is that contrary to domestic awards, there is no allowance for reserving a foreign award. Where it comes to international awards, courts in India can only impose them or fail to implement them; they cannot leave them away. An attempt was made by the Supreme Court to fill this ‘gap’ in the latest decision of Venture Global where the court ruled that it is lawful to set aside an international award in India using the terms of Section 34 of Part I of the Act.
Two conditions must be met in preparation for an international award to be recognized (for the purposes of the Act). First, it should comply with disagreements resulting from a contractual arrangement (whether contractual or not) that is deemed commercial under Indian law. The second scenario is more important: the nation at which the award was granted should be one that the Government of India has designated as a state to which New York Convention extends. Thus far, only just few nations have indeed been told, and so only awards made in those countries are recognized as international awards and legally binding in India.
The reasons for contesting an arbitral award can vary amongst nations. Nevertheless, this does not grant judges in the administering territories concurrent authority. A straightforward interpretation of the Act’s scheme and rules leads to the presumption that such concurrent authority is prohibited in the case of Convention Awards. In the landmark judgment of Bhatia International v. Bulk Trading S.A. and Anr, the parties to a multi-jurisdictional agreement agreed to resolve the disagreement by arbitration under the laws of the International Chambers of Commerce, Paris, with Paris as the lex arbitri. Concerned about the enforceability of Non-Convention Awards, that is, awards that are not recognised for compliance under Section II of the Act, the international party appealed to Indian courts for temporary steps dependent on a provisional award to protect the assets of the Indian applicant to the Arbitration.
In conclusion, the Indian Supreme Court ruled that Part I of the 1996 Act, that provides validity to the UNCITRAL Model Law by granting authority to an Indian judiciary to administer temporary steps notwithstanding the fact that the arbitration was conducted out beyond India, was unconstitutional. Academics and theoretical stalwarts have been outraged by the Supreme Court’s ruling. It has also been asserted that perhaps the Bhatia declaration of court did not provide Convention Awards under Part I. This renders the decision in the Bhatia dispute much more daunting to align with a straightforward interpretation of the law. If national awards are known as non-international awards and international awards are not national awards, the definitions of both domestic and international awards are inadequate. The system of compliance under the Act’s two Parts necessitates a difference among the two awards. Domestic awards which are rendered the focus of proceedings in India pursuant to Section 34 of the Act may be applied as if they were a decision of an Indian Court pursuant to Section 36 of the Act. International Awards should be carried out as a decision by an overseas judge.
It is worth noting that in many recent cases involving an international party, the Supreme Court has reiterated the decision of the Court in Bhatia and maintained that “the requirements of Part-I of the 1996 Act will be equally relevant to enforcement of foreign arbitral awards held beyond India, except some of the said requirements are specifically exempted by arrangement.” These proceedings show the Indian courts’ proclivity to intervene with both national and international arbitral awards. Although this contingency can be avoided, it is likely to incorporate arbitration clauses in the arrangement. Therefore, it is also not relevant if the conditions of dispute there under section 34 of the Act as well as section 48 of the Act are all the same. This debate is important to the legitimate assumption that an international award is legitimate and obligatory upon acceptance by the appropriate agency in India.
Furthermore, Section 48 (1) (e) of the Act states unequivocally that international awards must be binding under the constitution of the country where even the ‘challenging jurisdiction’ is asserted. This simply indicates a distinction among ‘challenging jurisdiction’ and ‘enforcement jurisdiction’. The regulations pertaining to the legal enforcement of foreign arbitral should address dual public policy objectives: first, restricting the judiciary’s review of the substance of the case and the arbitral tribunal’s decision thereunder in giving effect to the shareholders’ preference of dispute resolution; and the second, indicating the judiciary’s intrinsic supervisory preferences in modifying the arbitral tribunal’s ruling. In the field of multinational business transactions, the former takes precedence over the latter.
The underlying cause of all difficulties in enforcing/challenging awards has resulted from the judiciary’s ever-expanding authority to examine the awards, whether domestic or foreign. Increased judicial intervention, that results in the acceptance of a vast number of claims which could never be heard in the first instance, is another vice which impedes the resolution of business conflicts, thus slowing the country’s economic learning and expansion. Another major drawback that has been raised as a result of the Act’s reading would be that the time frame for enforcing the arbitral award is not specified. By not imposing a deadline on the execution of awards, one discovers that the excessive irregularities in arbitral proceedings are no special from those countless awaiting legal proceedings, thereby undermining the Act’s very clauses. Arbitration is seen as a lengthy legal procedure by the stakeholders and adjudicators, who are often former judges, who rely on lengthy and regular continuances to prolong the process entirely.
The aspects of efficiency and expense are the distinguishing features of the process and are frequently cited as the chief factors of why arbitration significantly outperforms litigation as a viable option for resolving disputes, notably in commercial matters. It should be noted that these flaws have the potential to thwart the advancement of foreign trade and economic arbitration, but with the increasing influx of foreign of industry, this may have a negative impact on our economy. Another way to reduce the chance of judicial interference is to arrange for an approving body, which restricts the participants’ right to appeal to the court system for the nomination under Section I of the Act.
The current era of globalization has resulted in the economy’s market and operational circumstances highlight the benefit of arbitration as a conflict settlement mechanism over lawsuits, particularly in terms of multinational conflicts. The 1996 Act was passed in order to facilitate rapid and premium dispute settlement. A review of how this mechanism works in India shows that arbitration as an entity is still emerging and has not yet been successful in meeting the ever demands of the global market that are essential to commercial growth. A world trade and trade arbitration scheme has been proposed that promotes foreign trade and commerce by decreasing the possibility of future economic conflicts being resolved by national courts. Regardless of the unanswered issues that haunt the proposed model organisation, sensible individuals do not want the hassle of seeing future conflicts resulting from their dealings challenged in court before several rather separate upper ranks, including the arbitral entity, the courts at the seat of the arbitration, and the court at the position of compliance.
It is worth noting that in many recent cases involving an international party, the Supreme Court has reiterated the decision of the Court in Bhatia and maintained that “the requirements of Part-I of the 1996 Act will be equally relevant to enforcement of foreign arbitral awards held beyond India, except some of the said requirements are specifically exempted by arrangement.” These proceedings show the Indian courts’ proclivity to intervene with both national and international arbitral awards. Although this contingency can be avoided, it is likely to incorporate arbitration clauses in the arrangement. Therefore, it is also not relevant if the conditions of dispute there under Section 34 of the Act as well as Section 48 of the Act are all the same. This debate is important to the legitimate assumption that an international award is legitimate and obligatory upon acceptance by the appropriate agency in India.
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