Can’t dictate filmmakers to use only decent language in films, they have artistic discretion, limited only by Article 19(2): Kerala HC - The Daily Guardian
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Can’t dictate filmmakers to use only decent language in films, they have artistic discretion, limited only by Article 19(2): Kerala HC

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While vindicating the liberty of filmmakers to make films as per their own choice, the Kerala High Court as recently as on February 10, 2022 in a learned, laudable, landmark and latest judgment titled Peggy Fen v. Central Board of Film Certification & Ors. in 2022 LiveLaw (Ker) 72 in WP (C) No. 28288 of 2021 has while dismissing a plea seeking to remove Malyalam movie Churuli from OTT platform SonyLiv for its allegedly excessive use of obscene language, observed clearly that a filmmaker has the discretion to decide what type of language should be used by the characters in his film. Justice PV Kunhikrishnan unequivocally added a rider though that as long as the language used in a movie was within the contours of the reasonable restrictions imposed on freedom of speech and expression under Article 19(2) of the Constitution of India. Very rightly so.

At the outset, the single Judge Bench of Justice PV Kunhikrishnan first and foremost puts forth in para 1 that, “This writ petition is filed by an advocate with a prayer to issue a writ in the nature of mandamus directing the respondents to remove the Malayalam movie “Churuli” from the ‘Over The Top Platform’ (for short ‘OTT Platform’) as expeditiously as possible. The second prayer is to issue such other writ, order, and direction directing the respondents as this Hon’ble Court deems fit in the interest of justice.”

While elaborating, the Bench then observes in para 2 that, “The petitioner is an advocate by profession and is having an office at Ayyanthole, Thrissur. ‘Churuli’ is a Malayalam language movie directed and co-produced by renowned director Lijo Jose Pellisseri and written by S. Harish. The movie was released on the OTT Platform in SonyLIV on 19.11.2021. According to the petitioner, even though the movie ‘Churuli’ is capable of invoking a sense of curiosity and mystery in the minds of the audience, there is an overdose of foul language used in the movie. It is pleaded that the movie contains obscene and filthy languages which are opposed to public morality and tranquility. According to the petitioner, every character in the movie uses at least a single offensive word in every dialogue they deliver. The filthy languages are used lavishly and without any curtain. It is the case of the petitioner that the words and language used in the film are not one that can be used publicly and openly. It is the case of the petitioner that, a person of common parlance will not use such languages even privately at home. According to the petitioner, the filmmaker had used such language deliberately with the intention to get more attention to the movie. Apart from using filthy words, the petitioner submitted that there are a lot of usages which is totally against the morality of ladies and objectionable to all ladies’ common conduct. The words used in the movie outrages the modesty of ladies and children and a person who is watching this movie will feel irritated and disgusted, the petitioner submits. It is pleaded that since a movie which is supposed to be a form of art, it influences common people of the society and it is common among people to imitate the dialogues of the Malayalam movies and if this similar situation happens with the movie ‘Churuli’, it will affect the public morality and tranquility. It is contended that the censor board has violated the rules and regulations by giving permission to release this movie. According to the petitioner, releasing a movie of this kind on a public platform will attract the offences under the Indian Penal Code. According to the petitioner, during the pandemic season, the children and the teenagers are staying at home as their schools are shut down and they are more prone to this OTT platform and this uncensored content. The parents seem it very difficult to monitor the children all the time, especially teenagers, who cannot be kept away from the phone or any other like gadgets as these devices are necessary for schools and colleges works. According to the petitioner, in January 2019 eight video streaming platforms had signed a self-regulatory code that stated a set of guiding principles for the contents which can be displayed online. There were five terms and conditions which had to be mandatorily followed and the same is extracted in the grounds of the writ petition and the same is extracted hereunder also:

a) No such content shall be added on these platforms which would cause any disrespect to the national emblem or national flag.

b) Display of content which can hurt religious sentiments could not be streamed.

c) Visuals promoting child pornography to be strictly prohibited.

d) Content which is banned by the law or order of the country could not be streamed.

e) Terrorism of any kind cannot be promoted.

It is the case of the petitioner that there is violation of the above terms and conditions also. Hence, this writ petition.”

Most significantly, what forms the cornerstone of this notable judgment is then laid bare in para 23 wherein it is held that, “In the light of the above principle, this Court has to consider the film “Churuli”. As narrated in the report submitted by the Special Team constituted by the additional 7th respondent, which includes three women members, the plot of the movie “Churuli” is the life of a group of Fugitives from law residing in deep forests which is highly inaccessible to the outside world. The inmates of the imaginary world are rough and tough in the character who are braving the odds of nature and are in constant dread of apprehension by law. Their living conditions are meagre and life is an everyday struggle for existence. They face danger from wildlife and other perils of forest life. The Special Team observed that it is a daily struggle for existence for the characters in the movie. The centre of action in the movie is an illegal Arrack brewing centre deep inside the forest. The characters in the movie due to their living conditions and circumstances are forced to speak in rough and tough language with expletives and cuss words in their day to day interactions. The filmmaker used a language, which, according to his artistic view, is used by the people in “Churuli”. In order to make the movie believable and for the audience to fully appreciate the life and culture of the character, the filmmakers use such languages. The persons living in such conditions cannot be expected to speak in a decent language used by people residing in a normal area. Nobody can dictate a filmmaker to use only decent language in his film and it is his artistic discretion to choose the language but of course with reasonable restriction mentioned in Article 19(2) of the constitution. The additional 7th respondent clearly stated in his statement that there is no statutory violation of any rules and no criminal offence is made out in exhibiting the movie “Churuli”. In such circumstances, this Court cannot direct any of the respondents to remove the movie “Churuli” from OTT platform. Moreover, there is no proper pleading in the writ petition. The prayers in the writ petition are vague. A reading of the writ petition itself will show that the intention of the petitioner is only publicity. Even the relevant rule which is applicable in an OTT platform movie is not referred to in the writ petition. Simply making an observation that the movie contains foul language or obscene language, this Court cannot direct to remove the movie from OTT platform. I have a strong doubt that the petitioner herself has not seen the movie in full with patience before filing this writ petition. Therefore, according to me, no relief can be granted in this writ petition.”

Be it noted, the Bench then envisages in para 24 that, “Before parting with this case, I am constrained to make certain observations. Social media is now popular among the citizens. Anybody can make any comments on social media because freedom of speech and expression is a fundamental right. But people are making comments on social media without properly understanding the facts. I am sure that most of the people who are making comments against this film namely “Churuli” have not seen the movie in full. Probably they may be relying on certain video clips received on Whatsapp, Facebook, Twitter, etc. to make comments. There is indeed freedom of speech and expression to every citizen as per Article 19 (1)(a) of the Constitution of India. But the above types of critics will be doing an injustice to a filmmaker by making comment about a film and make it an unpopular one without watching his movie in full. I can understand a criticism about a movie after watching the movie in full. But, without watching the movie, making comments alleging that it is a bad film, will hurt the filmmakers and artists. They are also human beings. Their work may be a good artistic creation or sometimes it may not be a good work. But before making comments against it or in favour of it, it is the duty of the citizens to watch their creation. I am told that now there is a phrase in social media about a new language called “Churuli language”. I am sure that the people who created this “Churuli language” have not seen the film “churuli” with patience and with the understanding that it is a creation of an artist. The artists are also part of our society. They create their work spending days and months. Making wrong comments on social media about an artistic creation, even without watching the creation is to be deprecated. It is the duty of the 7th respondent and his subordinates to protect the artistic freedom of a filmmaker by initiating appropriate proceedings including criminal cases, if any criminal offence is made out in such situation. The 7th respondent will give strict directions to his subordinates to take appropriate action in accordance to law, if such complaints are received.”

On a serious note, the Bench then conceded in para 25 that, “Another trend is about interpreting orders of a court of law. When this Court passed an order on 07.01.2022 which is extracted in paragraph-6 of this judgment, the same was published in almost all print and visual media correctly. But I am told that the social media interpreted the said order in such a way that this Court directed the Police to find out whether there is foul language in “Churuli” film! If this is correct, it is clear that the same is even without reading the order passed by this Court. This Court only observed that, before deciding this issue it will be beneficial to get the opinion of the State Police Department about the pleadings in the writ petition regarding the alleged statutory violation of law s enacted to ensure public order, decency or morality. This court also directed to find out whether there is any criminal offence made as alleged in the writ petition. This Court never directed the Police to find out whether foul or obscene language is used in “Churuli” film. The contents is correctly published in print and visual media. But I am told that social media started to create a story that High Court directed the Police to find out whether there is foul language in “Churuli” film. This is how social media forum is misused by a section of society. I am not blaming the entire community who are using social media and most of them are using the social media forum in a useful manner. But a minority is misusing the same.”

On an even more serious note and also adding a word of advice, the Bench then underscores in para 26 that, “Similarly when a Court delivers a judgment in a case, even before the judgment reaches the public, the criticism starts. It is surprising to see that, few lawyers are making comments about judgments of court of law even without reading the judgments. Some of the lawyers will start to comment about a judgment delivered by a court at 10.15 am or at 11 am immediately after the judgment is pronounced. The Bench and Bar are two sides of a coin. The lawyers should be the mouthpiece of the judiciary. A fair criticism about a judgment is always acceptable. But the criticism can be started only after reading the judgment. Such a culture is to be developed for which the lawyer community has got pivotal role. It is now a trend for a minority of the lawyers’ community to make comments about a judgment even without reading the judgments. If media people ask a lawyer at 11.05 am about a judgment delivered at 11 am, the lawyer will say that ‘I have not read the judgment, but from the available news I can make certain comments’. How can a lawyer make such comments without reading the judgment? He can simply say that I will read the judgment and will come back for making comments if necessary. If such a stand is taken, no media people will say that he should make comments even without reading the judgment. The lawyers should show the path to the society about the manner in which a judgment of a court is to be dealt with and how a judgment is to be criticized if it deserves such criticism. They can read the judgment and criticize the judgment if they want and of course not the judges who wrote the judgment. If the lawyers take a stand that they will make comments about a judgment of a court of law only after reading the judgment, that will go a long way because society will accept the stand of lawyers because they are respectable people in the society. If the lawyers started to comment about a judgment without reading a judgment, nobody can blame the poor citizens who make comments about judgment and judges on social media. I make it clear that such immature comments are not made by all the lawyers. But it is being done only by a handful of lawyers. At least hereafter, the lawyers should take an oath that they will make comments in print media, visual media, and social media about a judgment of a court of law only after reading the judgment. As I said earlier, the Bench and bar are two sides of a coin. The lawyers should be the mouthpiece of the judiciary. They should protect the interest of the judiciary. The judges may come and go. But Judiciary should stand. The lawyers are part and parcel of the judiciary. Anyway I leave it to the conscience of all lawyers.”

Finally, the Bench then concludes by holding in para 27 that, “In the light of the facts narrated in the earlier paragraphs, no relief can be granted to the petitioner in this case. The petitioner is a lawyer. The petitioner is coming before this Court with a writ petition without proper pleadings and even without a proper prayer. The prayer in the writ petition itself is vague. The statutory provisions applicable in this situation are not dealt with in this writ petition. It is a case to be dismissed with cost. But, taking a lenient view, I refrain myself. Therefore the writ petition is dismissed.”

In conclusion, the Kerala High Court has made it indubitably clear that filmmakers can’t be dictated to use only decent language in films. It was also made clear that they have artistic discretion limited only by Article 19(2). To put it differently, those litigants who similarly rush towards filing a writ petition at the drop of a hat under the pretext of finding something objectionable in the film must read this brief, brilliant, bold and balanced judgment in its entirety and pay heed to what has been held so commendably! Of course, it would certainly save them from landing themselves in inevitable choppy water and simultaneously also in indulging in an exercise in futility!

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The Unresolved Issue of AMP Expenses in Transfer Pricing – India

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One of the most perplexing yet significant concepts within the Transfer Pricing Dispute Resolution is with regards to the Advertisement, Marking and Promoting (AMP) Expenses that are drawn by the Indian Entities of a company for the products of its foreign Associate Entity. This concept has been surrounded by controversy and confusion since its inception within the practice and study of Transfer Pricing and this is because of the absence of any statutes or regulations dealing with it and its jurisprudence is built purely on the judicial precedents that have been delivered by the Tribunals and High Courts, however, interestingly even the courts appear to have a tough time dealing with issues pertaining to AMP expenses.

The origin of this dispute can be traced back to the United States Tax Court in the case of United States v. DHL Corporation, after the introduction of the US Regulations of 1968 which introduced an important concept pertaining to “Developer Assister Rules” as per which the entity which has incurred the AMP Expenses (Developer) would be treated as the economic owner of the brand which is being marketed even though it might not be its legal owner, and the legal owner of the Brand i.e., the Assister need not pay any compensation for the use of the brand by the developer. These regulations were grounded on the notion of equitable ownership of a brand on the basis of the fiscal expenditure and the risk incurred by them, and the legal ownership of the brand has not to be taken as one of the criteria for ascertaining who would be considered as the developer of the Brand or the intangible property in question.

However, it is pertinent to consider that the Transfer Pricing Rules in America create a clear distinction between “Routine” and “Non-Routine” expenditure, which is essential to understand the issue of the monetary remuneration that is given to the domestic associated entity for marketing intangibles. In DHL, the court framed the Bright Line Test (BLT) which created a distinction between the routine and non-routine expenses that were incurred by the companies. According to the Bright Line Test, it is necessary to ascertain the non-routine expenses that have been incurred i.e., for marketing purposes in contrast to the routine expenses that the incurred by the brand’s distributor for product promotion while ascertaining the economic ownership of the intangible in question.

The issue pertaining to AMP expenses was first dealt with in the case of Maruti Suzuki India Ltd. v. Additional Commissioner of Income Tax [(2010) 328 ITR 210] before the Delhi High Court, where the Bench held that the Advertisement, Marketing and Promoting Expenses will be considered as an international transaction only in cases where it exceeds the costs and expenses that have been incurred by comparable domestic entities which are similarly situated. However, the Delhi High Court’s judgement was remanded following which it was challenged before the Honourable Supreme Court in Maruti Suzuki v. Additional Commissioner of Income Tax [2011] 335 ITR 121 (SC) where it was overturned by the Apex Court.

In LG Electronics India Pvt. Ltd. v Assistant Commissioner of Income Tax [(2013) 140 ITD 41 (Delhi) (SB)], the Delhi Bench of the ITAT referred to the precedent by the Delhi High Court in Maruti Suzuki and held that the as per Chapter X of the Income Tax Act, 1961 the Assessing Officer has the right to make an adjustment for Transfer Pricing vide application of the Bright Line Test in issues pertaining to the AMP expenses that have been drawn by the Indian Entity, since this would fall within the ambit of an international transaction, and this would be deduced from the proportionally higher AMP expenses that were incurred by the Domestic Entity in contrast to two similarly situated domestic entities. The Revenue’s understanding that the AMP expenses which are incurred by the Domestic Associated Entity will inevitably result in a benefit to the Foreign Associated Entity in terms of increasing its brand value along with the lack of lack adequate compensation to the latter for the same, is the primary reason behind its attempt to bring all expenses pertaining to advertising, marketing and promotion within the ambit of the country’s Transfer Pricing Laws, thus it takes the job of applying an Arm’s Length Prince on such transactions which are used for AMP and the test that is most widely employed for this purpose is the Bright Line Test which used by the court in the case of LG Electronics, where it looked at the Bright Line, which is a line drawn within the total expenditure for the purposes of AMP which signified the average spending for the same purpose by comparable entities and any amount which would exceed the line would be considered as an international transaction which would represent the expenses that were drawn by the domestic entity for the building the brand value of the Foreign Associated Entity’s product.

The precedent in Sony Ericsson proved to be a gamechanger wherein the court went to the extent of overruling all of the abovementioned judgements with regards to whether AMP Expenses by the Domestic Entity would be considered as an internal transaction. In this case, the court did not face any issues in determining whether it would constitute an international transaction since the entities had submitted that the international between the Foreign Associated Entity and the Domestic Entity also included the money for the purposes of AMP. While the Revenue had relied on the precedent in LG Electronics to show cause for their application of the Bright Line Test in determining the part of the expenses towards AMP that would be considered as an international transaction. However, the court reject the Revenue’s submissions and reasoning while holding that the Bright Line Test did not have legislative or statutory backing and thus the precedent in LG Electronics was overruled with regards to the use and applicability of the Bright Line Test for ascertaining international transactions since this would be considered as an outcome of judicial legislation.

After the precedent in Sony Ericsson there has been a drastic change in the judicial approach towards issues pertaining to AMP expenses within the realm of transfer pricing. However, since the Court has failed to elaborate upon what would constitute an international transaction in Sony Ericsson, the courts and tribunals have gone back to the phase of drowning in confusion to deal with cases pertaining to AMP expenses and have struggled with determining a proper method for the same.

A transfer pricing adjustment can only be made when it has met the statutory framework of highlighting the existence of an international transaction, determination of the price and fixing an ALP in compliance with Section 92 C of the Income Tax Act. While the element of the international transaction was not disputed in all of the aforementioned cases, the primary issue was with regards what would constitute an international a transaction. The definition of an international transaction as per the Income Tax Act includes the parties to have an agreement between themselves for such a transaction and a shared understanding with regards to the transaction and its purpose. In LG Electronics and other cases prior to Sony Ericson, the primary criteria that were adopted by the courted in ascertaining international transactions and unsaid understanding, were on the basis of proportionally higher expenses with reference to comparable i.e. the courts had adopted the Bright Line Test which had been deemed incompatible with the Income Tax Act of 1961

At a glance at most of the cases pertaining to this issue, the Revenue has resorted to proving the existence of international transactions on the basis of the Bright Line Test, and most of the revenue’s judgements also fail to highlight or prove the same, otherwise except for the unique cases in which the Assessee Domestic Associated Entity and the Foreign Associated Entity had a written agreement between the two of them. This issue is purely because of the lack of any regulatory or statutory provisions within the Income Tax Act, and this was also brought to attention by the court in Maruti Suzuki(2011). In the absence of Statutory provisions and the inability to apply the Bright Line Test because of the precedent in Sony Ericsson, it becomes impossible for the revenue in such cases, especially in the absence of a written or express agreement between the Domestic and Foreign Associated Entities, where it is forced to assess the Domestic Entity’s subjective intentions however this method was also rejected in Maruti Suzuki(2011).

While the decision in Sony Ericsson has left the Revenue and Courts baffled with regards to the method, they should use to ascertain international transactions in matters pertaining to AMP expenses, hopefully, this will finally come to a conclusion since it is currently being heard by the Country’s Apex Court. It is of the utmost importance for the Apex Court to elaborate upon the method and procedure that must be followed by the revenue in determining cases pertaining AMP expenses and issue guidelines for the same.

The origin of this dispute can be traced back to the United States Tax Court in the case of United States v. DHL Corporation, after the introduction of the US Regulations of 1968 which introduced an important concept pertaining to “Developer Assister Rules” as per which the entity which has incurred the AMP Expenses (Developer) would be treated as the economic owner of the brand which is being marketed even though it might not be its legal owner, and the legal owner of the Brand i.e., the Assister need not pay any compensation for the use of the brand by the developer. These regulations were grounded on the notion of equitable ownership of a brand on the basis of the fiscal expenditure and the risk incurred by them, and the legal ownership of the brand has not to be taken as one of the criteria for ascertaining who would be considered as the developer of the Brand or the intangible property in question.

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INSURANCE COMPANY SHOULD NOT SEEK DOCUMENTS WHICH ARE BEYOND THE CONTROL OF INSURED TO FURNISH, SAYS SUPREME COURT WHILE SETTLING CLAIM

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The Supreme Court in the case Gurmel Singh vs Branch Manager, National Insurance Co. Ltd observed that due to circumstances which is beyond the insured control and which the insured is not in a position to produce while settling the claims, the insurance company need not be too technical and ask for documents.

While settling the claim, it is found that the insurance companies are refusing the claim on flimsy grounds and/ or technical grounds further which the insured is not in a position to produce due to circumstances beyond his control, While settling the claims, the insurance company should not be too technical and ask for the document As the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non­ submission of the duplicate certified copy of certificate of registration as due to the circumstances beyond his control, the appellant could not produce on payment of huge sum by way of premium and the Truck was stolen, once there was a valid insurance. As the appellant was asked to produce the documents which are beyond the control of the appellant to produce and furnish those documents.

An amount of Rs. 12 lakhs along with interest @ 7 per cent from the date of submitting the claim, the appellant is entitled to the insurance and to pay the litigation cost of Rs. 25,000 to the appellant, the court held while allowing the appeal.

the insurance company has become too technical while settling the claim and the insurance company has acted arbitrarily, observed by the court in this case.

As when an appellant produced the registration particulars which has been provided by the RTO and further the appellant had produced the photocopy of certificate of registration and was just being solely on the ground that the original certificate of registration i.e., which has been stolen is not produced and the non-settlement of claim can be said to be deficiency in service. Therefore, the Insurance companies are refusing the claim on flimsy grounds and/or technical grounds, the facts and circumstances of the case. Furthermore, the appellant had tried his best to get the duplicate certified copy of certificate of registration of the Truck. the insurance company must have received the copy of the certificate of registration, even at the time of taking the insurance policy and getting the insurance.

the appellant has not produced either the original certificate of registration or even the duplicate certified copy of certificate of registration issued by the RTO, mainly on the ground the insurance company has not been settled in an appeal before the Apex Court. The bench further noted that the photocopy 5 of certificate of registration and other registration particulars as provided by the RTO, was being produced by the appellant.

The bench comprising of Justice MR Shah and the justice BV Nagarathna observed and contended that, in many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds.

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Supreme Court seeks response of Union and states on plea for guidelines to prevent sexual harassment of students in schools

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The Supreme Court in the case Nakkheeran Gopal v UOI & Or’s observed that any kind of harassment including the sexual harassment being carried out at educational institutions The Court while allowing the writ petition issued a notice seeking protection of children.

The plea stated that there is a vicarious liability upon the State Government to implement any law for the well-being and also for the protection of the children in their respective states.

the petition states that to implement any law for the well-being of children and also for the protection of the children in their respective states, it is the responsibility of the State Government and the plea further mentioned that it the vicarious liability of the State Government and It will be considered the lapse on the part of the State Government if there is Any lapse on the part of the educational institution as it remains a crucial department in the State Government With respect to the relevant organization, including Educational Institution, stated in the plea before the court.

The petitioner argued that till date no specific mandate or the law or the guidelines have been issued by the respective States and inspire of alarming rate in the offence against the children especially at school premises.

The petition further states with this regard that children can also themselves be coerced into becoming tools in furtherance of illegal and dangerous activities and under this circumstance the Increased online time can lead to grooming and both online and offline exploitation.

It is essential to ensure the constitutional right to dignity of children provided under Article 21 of the Constitution of India, while protecting children against sexual abuse when they are exposed to predators, which is compromised, stated by the petitioner in the plea.

The petition states that it indicates immediate concerns and measures for intervention are of paramount significance and further the court stated that this calls for the implementation of legislative actions and community-based interventions through virtual media to prevent a further rise in the statistics and to ensure child protection and when the safety of the children is at stake especially at educational institutions which is supposedly to be the safest shelter, and that too during this tough time. As it is necessary to Protecting the basic rights of children and is of utmost concern as otherwise there will be a posting of a substantial threat to the future and this would leave a regressive impression.

It is the fundamental right of the children under Constitution of India to engage and study in an environment when he/ she feels safe from any kind of emotional or physical abuse and is free, further being argued in the petition.

The bench comprising of Justice Indira Banerjee and the Justice CT Ravikumar observed and sought responses of the Union and the States for guidelines for the educational institutions for the protection of the children and also for the enforcement of the fundamental rights of Children at the educational institutions.

It is essential to ensure the constitutional right to dignity of children provided under Article 21 of the Constitution of India, while protecting children against sexual abuse when they are exposed to predators, which is compromised, stated by the petitioner in the plea.

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IN MEDICAL NEGLIGENCE COMPENSATION CLAIMS, MCI FINDINGS REGARDING DOCTORS’ PROFESSIONAL CONDUCT HAVE GREAT RELEVANCE: SC

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The Supreme Court in the case Harnek Singh vs Gurmit Singh observed while considering medical negligence compensation claims that the findings of the report of Medical Council of India on professional conduct of doctors are relevant.

from the date of SCDRC order as compensation thereafter the court directed the Respondents to pay to the complainants a total amount of Rs. 25,00,000 with interest @ 6% per annum. the complainants have made out a case of medical negligence against Respondents 1 and 2 and are entitled to seek compensation on the ground of deficiency of service and the court hold that the decision of the NCDRC deserves to be set aside. in reversing the findings of the SCDRC and not adverting to the evidence on record including the report of the MCI, the court is of the opinion that the NCDRC has committed an error. The case of medical negligence leading to deficiency in his services, the above-referred findings of the MCI on the conduct of Respondent 1 leave no doubt in our mind that this is certainly, observed by the bench.

The bench further observed that he opinion and findings of the MCI regarding the professional conduct of Respondent 1 have great relevance while referring to the contents in the report of MCI.

The issue raises in the above-mentioned case is weather a professional negligence is established by the complainant as per the standards governing the duty to care of a medical practitioner on the part of Respondent As the NCDRC gave its decision without referring to the MCI finding the complainants/appellants submitted, in an appeal submitted by the Apex Court. this complaint got summarily disposed of and they filed appeals before Medical Council Of India The Ethics Committee of MCI held one doctor medically negligent and issued a strict warning to be more careful during the procedure and to be more diligent in treating and monitoring his patients during and after the operation he complainants had also made a complaint to the Punjab State Medical Council against the professional misconduct of the doctors, hospitals, surgeons, While the proceedings were pending before the SCDRC.

the complaint and two among the opposite parties were allowed by SCDRC to directly pay Rs. 15,44,000 jointly and severally and Rs. 10,000 as costs as the appeal was allowed by The National Consumer Disputes Redressal Commission of these opposite parties and set aside the order of the SCDRC holding that negligence was not proved by the complainants.

The bench comprising of Justice UU Lalit, justice S. Ravindra Bhat and the justice PS Narasimha also observed and contended the question of intention does not arise that in the proceedings for damages due to professional negligence.

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WHERE THE CLAIMS OF EVENTS HAVE BEEN SUCCESSFULLY ESTABLISHED BY THE PROSECUTION, SECTION 106 OF THE EVIDENCE ACT APPLIES TO CASES: SUPREME COURT

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The Supreme Court in the case Sabitri Samantaray vs State of Odisha observed here chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused, the Section 106 of the Indian Evidence Act applies to cases.

in light of Section 106 of the Evidence Act the High Court rightly observed that as how the deceased lost his life and the onus was now on the appellants to disclose further the court observed that the appellants have failed to offer any credible defense in this regard and it can be deduced that the entire sequence of events strongly point towards the guilt of the accused appellants the burden was on the appellants to prove it otherwise as once the prosecution had successfully established the chain of events.

in the light of the statements made by all the sets of witnesses, with such an intention when analyzed and the fatal injuries sustained by the deceased at the relevant place and time further the court contended while dismissing the plea that it certainly makes out a strong case that death of the deceased was indeed caused by the appellants. in establishing intention of the accused-appellants for the commission of the offence, the prosecution has succeeded, the Court notice.

whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, in a case based on circumstantial evidence then in the chain of events such a response in itself becomes an additional link, when a case is based on circumstantial evidence As Section 106 of the Evidence Act from its burden to establish the guilt of an accused is in no way aimed at relieving the prosecution. where chain of events has been successfully established by the prosecution, it only applies to those cases from which a reasonable inference is made out against the accused.

the Section 106 it merely prescribes that when an individual has done an act and in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt Thereafter the onus of proving that specific intention falls onto 9 the individual and not on the prosecution. If the accused had a different intention than the facts are specially within his knowledge which he must prove, with an intention other than that which the circumstances indicate. As the Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an individual is on that individual. Although the Section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, observed by the Bench as the said provisions Since it is all based upon the interpretation of Section 106 Evidence Act, the contentions of either

the bench comprising of CJI NV Ramana, Justice Krishna Murari and the justice Hima Kohli observed and contended whenever an incriminating question is posed to the accused and he or she either evades response or that which being offers a response is not true then such a response in itself becomes an additional link in the chain of event, in a case based on circumstantial evidence.

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A candidate has no legal right to insist that the recruitment process set in motion be carried to its logical end: SC

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The Supreme Court in the present case Employees State Insurance Corporation vs Dr. Vinay Kumar observed that the recruitment process set in motion be carried to its logical end as the candidate does not have a legal right to insist.

The bench directed the Corporation-appellants to take a decision regarding whether to complete the recruitment process, bearing in mind all relevant aspects within a period of two months, while allowing the appeal further it stated there is however no doubt from holding that the employer is free to act in an arbitrary manner.

A recruitment process which is set in motion be carried to its logical end candidate who has applied does not have a legal right to insist that Even in the select list may not clothe the candidate with such a right and that too even in the inclusion of a candidate.

A recruitment process carried to its logical end and the process set in motion, the candidate who applied does not have the legal right and thereafter the court further contended that the cardinal principle we must bear in mind is that this is a case of direct recruitment, observed by the bench.

The Court further said that it is quite likely that any candidate who may have being desirous of applying, may not have applied being discouraged by the fact that the advertisement has been put on hold and by agreeing with the applicant the court contended and said that the direction to conclude the proceedings within 45 days is unsupportable.

The recruitment process set in motion be carried to its logical end and the Candidate who has applied does not have a legal right to insist the recruitment process.

The ground raised by the appellants for not proceeding with the procedure of direct recruitment is untenable, the respondent contended before the court and on the other hand on account of certain developments which took place, there may really be no need to fill up the post of Associate Professor and the respondent may not have a right as such, the appellant contended before the Apex Court.

The High Court which dismissed the writ petition filled by the Corporation and it directed the Corporation to conclude the process positively within a period of 45 day. the Corporation filed appeal before the Apex Court, Aggrieved with this direction.

The bench comprising of Justice KM Joseph and the justice Hrishikesh Roy observed that Even inclusion of a candidate in the select list may not clothe the candidate with such a right and it does not mean that the employer is free to act in an arbitrary manner, the bench clarified.

The recruitment process set in motion be carried to its logical end and the Candidate who has applied does not have a legal right to insist the recruitment process.

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