In a very significant observation, the Apex Court has as recently as on October 29, 2021 in a learned, laudable, landmark and latest judgment titled The State of Jammu and Kashmir vs Dr Saleem Ur Rehman in Criminal Appeal No. 1170 of 2021 in exercise of its criminal appellate jurisdiction observed without mincing any words that whatever enquiry is conducted at the stage of Preliminary Enquiry, by no stretch of imagination, can be considered as investigation under the Code of Criminal Procedure which can be only after registration of the FIR. The Court also observed that merely because some time is taken for conducting preliminary enquiry, that cannot be a ground to quash the criminal proceedings for an offence under the Prevention of Corruption Act. Very rightly so!
To start with, this brief, brilliant and balanced judgment authored by Justice MR Shah for himself and Justice AS Bopanna sets the ball rolling by first and foremost observing in para 1 that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 07.05.2018 passed by the High Court of Jammu & Kashmir at Srinagar in O.W.P. No. 1961/2015, by which the High Court in exercise of its extra-ordinary jurisdiction has quashed the criminal proceedings being FIR No. 32/2012 and has declared Rule 3.16 of the Vigilance Manual, 2008 dealing with the Preliminary Enquiry (PE) being in direct conflict with the Constitution Bench Judgment of this Court in the case of Lalita Kumari v. Government of Uttar Pradesh, reported in AIR 2014 SC 187 = 2014 (2) SCC 1, and consequently has declared the same ultra vires, the State has preferred the present appeal.”
Briefly stated, the Bench then envisages in para 2 that, “That an FIR being FIR No. 32/2012, Police Station, VOK was registered against the respondent herein under Section 5(1)(d) r/w 5(2) of the J&K Prevention of Corruption Act, 2006 (hereinafter referred to as the ‘J&K PC Act, 2006’) and Section 120B of the Ranbir Penal Code (hereinafter referred to as the ‘RPC’) alleging inter alia that during 2010- 11, the Director Health Services, Kashmir along with the other accused persons misappropriated the huge amount of government money by way of effecting purchases of sub-standard medical kits under National Rural Health Mission (NRHM) at highly exorbitant rates and in violation of the conditions of supply orders placed by the department.”
Truth be told, the Bench then points out in para 4 that, “By the impugned judgment and order, the High Court has quashed the entire criminal proceedings initiated against the respondent for the aforesaid offences by holding that:
(1) there is a non-compliance of the mandatory provision under Section 3 of the J&K PC Act, 2006 inasmuch as no special and separate reasoned order was passed by the authorising officer while conferring authority on a non-designated officer as per second proviso to Section 3;
(2) prior sanction of the Magistrate for the offence under Section 120B as required under Section 155 of the J&K Cr.P.C. was not obtained;
(3) there was a delay in conducting the preliminary verification and by holding the preliminary verification the authority entered into the domain of investigation which is not permissible as held by this Court in the case of Lalita Kumari (supra); and
(4) the allegations made in the FIR even if accepted to be true in its entirety are legally not tenable.”
While continuing in the same vein, the Bench then also reveals in para 4.1 that, “Holding above, the High Court has quashed the preliminary verification No. 34/2011, FIR No. 32/2012, Police Station, Vigilance Organisation Kashmir and the resultant investigation of the FIR. The High Court has also quashed the Entrustment Order dated 16.11.2012 passed by the Senior Superintendent of Police, VOK, Srinagar authorising the investigating officer to investigate the case/offences. The High Court has also declared Rule 3.16 of the Vigilance Manual, 2008 dealing with Preliminary Enquiry (PE) as ultra vires on the ground that the same is in direct conflict with the decision of this Court in the case of Lalita Kumari (supra).”
Needless to say, the Bench then remarks in para 5 that, “Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the State of Jammu & Kashmir has preferred the present appeal.”
Be it noted, the Bench then observes in para 8.6 that, “In the present case also, it cannot be said that there was any nonapplication of mind on the part of the Senior Superintendent of Police authorising the inspector Nisar Hussain to enquire into the FIR for the offences under Sections 5(1)(d) r/w 5(2) of the J&K PC Act, 2006 and 120-B of the Ranbir Penal Code. It is required to be noted that Inspector Nisar Hussain who was authorised to investigate the FIR for the aforesaid offences was also authorised to arrest the accused persons whenever and wherever necessary. It is also required to be noted that in the said authorisation it has been specifically mentioned that he will conduct the investigation of the case under the supervision of the Superintendent of Police (BKB). Therefore, all precautions are taken by the Senior Superintendent of Police authorising the Inspector Nisar Hussain to investigate the FIR for the offences under the J&K PC Act, 2006. Even otherwise, it is required to be noted that on a plain reading of the second proviso to Section 3, only two requirements are required to be satisfied, namely, (i) authorisation in writing by an officer of the Vigilance Organisation not below the rank of Assistant Superintendent of Police to an officer of not below the rank of Sub-Inspector of Police to investigate such offences; and (ii) such officer authorised may investigate the offences so specified in the order of authorisation. Therefore, as such, there is no requirement of giving either special reasons or there is no requirement to mention reasons. What is required to be considered is whether there is an application of mind with respect to offences and the relevant provisions with respect to authorisation. Considering the authorisation reproduced hereinabove, it cannot be said that such authorisation authorising Inspector Nisar Hussain to investigate the FIR for the offences under Sections 5(1)(d) r/w 5(2) of the J&K PC Act, 2006 and 120B of the RPC can be said to be vitiated and/or can be said to be void which warrants quashing of the entire criminal proceedings including the FIR. Therefore, as such, the High Court has committed a grave error in quashing the entire criminal proceedings holding that authorisation in favour of Inspector Nisar Hussain was bad in law, relying upon the observations made by this Court in the case of Bhajan Lal (supra), which has been subsequently explained by this court in the case of Ram Singh (supra). We are of the opinion that in the facts and circumstances of the case and considering the authorisation read with the second proviso to Section 3, authorisation cannot be said to be illegal and/or invalid.”
It is also worth noting that the Bench then observes in para 9 that, “Now so far as the finding recorded by the High Court for non-compliance of Section 155 of J&K Cr.P.C. is concerned, it is to be noted that the High Court has observed that for an investigating agency to investigate the group of offences which include the non-cognizable one, it must obtain a sanction from the concerned Magistrate before launching the investigation and in the present case no such sanction from the concerned Magistrate has been obtained is concerned, it is to be noted that the substantive offences against the respondent herein were under J&K PC Act, 2006 and as per Section 3 of the Act, all offences under the Act are cognizable and non-bailable. As such, the aforesaid issue is squarely covered against the respondent in view of the decision of this Court in the case of Pravin Chandra Mody(supra). In paragraph 6, it is observed and held as under:
“6. Section 156(2) provides that where a police officer enquires into an offence under Section 156(1) his action cannot be called into question on the ground that he was not empowered to investigate the offence. The enquiry was an integrated one, being based on the same set of facts. Even if the offence under the Essential Commodities Act may not be cognizable — though it is not alleged by the appellant that it is non-cognizable — the police officer would be competent to include it in the charge-sheet under Section 173 with respect to a cognizable offence. In Ram Krishna Dalmia v. State [AIR (1958) Pb. 172], Falshaw, J (as he then was) observed that the provisions of Section 155(1) of the Criminal Procedure Code, must be regarded as applicable to those cases where the information given to the police is solely about a non-cognizable offence. Where the information discloses a cognizable as well as a non-cognizable offence the police officer is not debarred from investigating any non-cognizable offence which may arise out of the same facts. He can include that non-cognizable offence in the charge-sheet which he presents for a cognizable offence. We entirely agree. Both the offences if cognizable could be investigated together under Chapter XIV of the Code and also if one of them was a non-cognizable offence.””
Without mincing any words, the Bench then clearly lays down in para 10 that, “In the present case, the offence under the Prevention of Corruption Act is a substantive offence and the investigation in respect of the offence under the PC Act, when considered and coupled with the offence of conspiracy, there is no requirement of prior sanction of the Magistrate. Merely because the offence of the conspiracy may be involved, investigation into the substantive offence, i.e., in the present case, offence under the PC Act which is cognizable is not required to await a sanction from the Magistrate, as that would lead to a considerable delay and affect the investigation and it will derail the investigation. Therefore, the High Court has erred in quashing the criminal proceedings on the ground that as the offence under Section 120B which is a non-cognizable, prior sanction as required under Section 155 of J&K Cr.P.C. is not obtained. The view taken by the High Court is just contrary to the law laid down by this Court in the case of Pravin Chandra Mody (supra), which has been subsequently relied upon by this Court in the cases of Brij Lal Palta (supra); Satya Narain Musadi (supra); Madan Lal (supra); and Bhanwar Singh (supra).”
Furthermore, the Bench then observes in para 11 that, “The impugned judgment and order passed by the High Court insofar as holding Rule 3.16 of the Vigilance Manual, 2008 as ultra vires is concerned, it is required to be noted that even Rule 3.16 can be said to be in consonance with the observations and the law laid down by this Court in the case of Lalita Kumari (supra). Rule 3.16 reads as under:
“CLAUSE 3.16 – PRELIMINARY ENQUIRY (PE)
When a complaint or information discloses adequate material indicating misconduct on the part of public servant which needs a detailed verification prior to registration of a case u/s 154 Cr.P.C., a Preliminary Enquiry (PE) can be ordered. A PE should normally be completed in a period of six months. The PE will be registered on a given proforma (Annexure K). Sometimes courts also order an enquiry by the State Vigilance Organisation. Such preliminary enquiries should also be registered after approval of the Commissioner of Vigilance. A PE may be converted into FIR, with the prior concurrence of central office, as soon as sufficient material becomes available to show that, prima facie, commission of a cognizable offence under Prevention of Corruption Act is made out. When the material available indicates ingredients of misconduct alone and not criminal misconduct, a self-contained note should be sent to the appropriate disciplinary authority for departmental action.””
It cannot be glossed over that the Bench then minces no words to observe in para 12 that, “On a close reading of Rule/Clause 3.16, it can be seen that even the same can be said to be in the interest of the accused and/or a person against whom the allegations are made and to safeguard the accused against frivolous complaints. As per Clause 3.16 only after the Preliminary Enquiry is conducted and there is a prima facie case found, an FIR is required to be registered. Considering the nature of offences, a detailed enquiry is required and therefore it is observed in Clause 3.16 that a PE should be completed normally within a period of six months. It is the case on behalf of the respondent and even as observed and held by the High Court in the impugned judgment and order as per the law laid down by this Court in the case of Lalita Kumari (supra), a detailed investigation into the allegations on merits is not required by holding Preliminary Enquiry and that such enquiry is to be completed within a period of 7 days is concerned, it is to be noted that in the case of Lalita Kumari (supra), it is not held that if the Preliminary Enquiry is not completed within a period of 7 days, the entire criminal proceedings would be void and the same are to be quashed.”
Most significantly, the Bench then waxes eloquent to holds in para 13 that, “So far as the submission on behalf of the respondent that in the present case by conducting a Preliminary Enquiry, detailed investigation has been made and only thereafter the FIR is registered and that at the time of Preliminary Enquiry, investigation is not permissible since the FIR is lodged is concerned, the aforesaid submission seems to be attractive but has no substance. While holding a Preliminary Enquiry under Clause 3.16, whatever is conducted will be in the form of enquiry into the allegations to consider whether any prima facie case is made out or not which requires further investigation after registering the FIR or not. While considering the prima facie case for the purpose of registering the FIR, some enquiry/investigation is bound to be there, however, the same shall be only for the purpose of finding out a prima facie case for the purpose of registration of the FIR only. Whatever enquiry is conducted at the stage of Preliminary Enquiry, by no stretch of imagination, will be considered as investigation under the code of criminal procedure which can only be after registration of the FIR. Even otherwise, merely because while holding a Preliminary Enquiry a detailed enquiry is made into the allegations made against the respondent which, as observed hereinabove, can be said to be only for the purpose of finding out a prima facie case for the purpose of registration of the FIR and merely because some more time is taken in conducting the Preliminary Enquiry before registering the FIR, the entire criminal proceedings cannot be quashed. There shall not be any prejudice caused to the accused at the stage of holding Preliminary Enquiry which as observed hereinabove shall only be for the purpose of satisfying whether any prima facie case is made out with respect to the allegations made in the complaint which requires further investigation after registering the FIR or not. Therefore, the High Court has materially erred in holding and declaring Clause 3.16 as ultra vires.”
As it turned out, the Bench then observed in para 14 that, “Now so far as the 4th ground/question on which the High Court has quashed the criminal proceedings, namely, the respondent cannot be held vicariously liable in the absence of main conspirators – Private Limited Companies and/or their in-charge persons is concerned, it is to be noted that the allegations against the respondent are in respect of his individual capacity. Besides the Directors of the Private Limited Companies, respondent no.1 and other officials have been arrayed as an accused. Therefore, there is no question of any vicarious liability and the observations made by the High Court that in absence of main conspirators – Private Limited Companies and/or their in-charge persons, respondent no.1 cannot be held liable is unsustainable and cannot be accepted. The High Court has erred in quashing the entire criminal proceedings on the aforesaid ground.”
Finally, the Bench then holds in para 15 that, “In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court quashing the entire criminal proceedings for the offences under Sections 5(1)(d) r/w 5(2) of the J&K PC Act, 2006 and 120B of the Ranbir Penal Code arising out of FIR No. 32/2012 and quashing and setting aside the Entrustment Order dated 16.11.2012 passed by the Senior Superintendent of Police, VOK, Srinagar authorising the Inspector Nisar Hussain to investigate the FIR for the offences under Sections 5(1)(d) r/w 5(2) of the J&K PC Act, 2006 and 120B of the Ranbir Penal Code and holding and declaring Rule/Clause 3.16 of the Vigilance Manual, 2008 dealing with Preliminary Enquiry (PE) as ultra vires is unsustainable and deserves to be quashed and set aside and is hereby quashed and set aside. FIR/criminal proceedings against the respondent being FIR No., 32/2012 for the offences under Sections 5(1)(d) r/w 5(2) of the J&K PC Act, 2006 and 120B of the Ranbir Penal Code is to be investigated and proceeded further by the authorised officer expeditiously.”
In conclusion, the Apex Court has made it pretty clear that more time taken for preliminary enquiry cannot be a ground to quash criminal proceedings for an offence under the Prevention of Corruption Act. Para 13 forms the cornerstone of this judgment which we have already discussed above. All the courts must always adhere to what has been laid down by a Bench of Apex Court comprising of Justice MR Shah and Justice AS Bopanna in this leading case so commendably, cogently, composedly and also convincingly! There can be no denying it!
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GUJARAT HC GRANTS RELIEF TO PHARMACY DIPLOMA HOLDERS
The Gujarat High Court in the case Oza Nikun Dashrathbhai v/s State Of Gujarat observed and has come to the rescue of D.Pharm students who were denied registration as ‘Pharmacist’ by the State Pharmacy Council on the ground that they have not undertaken training from medical stores approved the Pharmacy Practice Regulations, 2015.
The Single bench comprising of Justice AS Supehia observed and noted that the Pharmacy Council of India has not approved any medical store under the Regulation for the purpose of imparting practical training of Diploma to the students in Pharmacy Course like the present petitioners.
It was observed that the petitioners cannot be faulted for the action of the respondent authorities in not approving the medical stores under regulation 4.4 of the Regulation of 2015 and hence, no option was there to the petitioner to take their training from the respective medical stores.
It was claimed by the petitioner’s student that the State Council was not registering them as Pharmacists despite having undertaken the necessary training of 500 hours for three months from the respective medical stores.
Further, it was observed that the State had admitted that all documents of the Petitioners were genuine, however, the registration was denied solely for the aforesaid reason. Further, one of the governmental circulars had clarified that the process for granting approval of Chemist/ Pharmacy and Druggist will be notified through the online mode. But the same was targeted only at “prospective students” .
It was noted by the High Court that in order to avoid hardship to current students, who had already undergone or undergoing the D.Pharm course while taking the practical training under the Pharmacy, Chemist and Druggist licensed under the Drugs and Cosmetics Act, 1940, as per precedence students will be considered for the registration, provided the students had undergone the D.Pharm course in an institution approved under PCI under section 12 of the Act.
Accordingly, the High Court directed the State Council to register the Petitioners as Pharmacists within three months.
BASICS, LEGISLATIONS AND NEED FOR A NEW LAW TO DEAL WITH 5G SPECTRUM TECHNOLOGY
Much like the evolution of humankind over the millennia, the inventions by humans have also evolved with the progress and advances in technology. Right from the invention of the telephone by Graham Bell to the present day wonder phone ; the cellular or mobile phone.
Cellular mobile technology has also benefited greatly from such advances, Think back to the first generation of mobile phones and connectivity options offered and you think of large phone instruments and only voice enabled phones.
Segue to the present day and we have now arrived at the threshold of a major revolution in cellular technology: the 5G network.
What is the 5G network technology? Simply expressed, it is an advancement of technology, but to put it in better terms, what this means is that with higher usage of mobile phones, which have morphed into office equipment or entertainment consoles due to their ease of usage and accessibility, this new technology has the capability of transmitting data at higher speeds, without any perceptible delay ( which is known as low latency in technical terms), which even the current 4G network could not perhaps address.
What are the laws governing 5G network technology? At present, there are no specific regulations or laws that govern this technological advance and it would thus be governed by the existing bouquet of legislations and rules, which are;
Indian Telegraph Act, 1885: This legislation regulates the telecommunication sector, empowering the government to put up infrastructure and licensing of infrastructure.
The Indian Wireless Telegraphy Act, 1933: This legislation regulates the usage of wireless telegraphs in the country.
Telecom Regulatory Authority of India Act, 1997: This act was put into place in order to regulate and settle telecom disputes and an authority know as Telecom Regulatory Authority of India was setup under the legislation . The initial role of the authority was to look into disputes in the sector , its scope was however, expanded to regulate the sector in the country, which in the context of the mobile or cellular technology also includes the grant of licences.
Information Technology Act, 2000: As the name suggests, this act governed information technology, but was later amended in 2008 to include telecom service industry.
Apart from this the guidelines issued by the Government under these enactments would hold the field. Allocation of spectrum would be based upon technical evaluations carried out before granting licences.
What are the requirements to be fulfilled by the applicant telecom companies to obtain 5G spectrum licence? The company must hold a Cellular Mobile Telephone Service Licence or Unified Access Service Licence , Unified Licence with permission/authorisation for access services for the service area for which it has bid for (the region that it has bid for).
Apart from this, the additional or subsidiary conditions that have to be met are:
The company that bids for licenses must have a net worth of Rs. 100 crores for the service area that it has bid for amongst other ancillary requirements.
The stance of the Government: The stance of the Government as reflected on its website https://dot.gov.in/5g-india-2020 is that “ The 5G technology has been conceived as a foundation for expanding the potential of the Networked Society. A digital transformation brought about through the power of connectivity is taking place in almost every industry. The landscape is expanding to include massive scale of smart things to be interconnected. Therefore, the manner in which future networks will cope with massively varied demands and a business landscape will be significantly different from today.
The economic benefits from the 5G technology are also quite immense. As per the OECD (Organization for Economic Cooperation and Development) Committee on Digital Economic Policy, it has been stated that 5G technologies rollout will help in Increasing GDP, Creating Employment, Digitizing the economy.
For India, 5G provides an opportunity for industry to reach out to global markets, and consumers to gain with the economies of scale. Worldwide countries have launched similar Forums and thus, India has joined the race in 5G technologies.
The Government gave the go ahead for 5G spectrum trials as reported on the website,https://www.pib.gov.in/PressReleseDetailm.aspx?PRID=1715927,which stated that-The Department of Telecommunications (DoT), Government of India, approved permissions to Telecom Service Providers (TSPs) for conducting trials for use and applications of 5G technology. The applicant TSPs include Bharti Airtel Ltd., Reliance JioInfocomm Ltd., Vodafone Idea Ltd. and MTNL. These TSPs have tied up with original equipment manufacturers and technology providers which are Ericsson, Nokia, Samsung and C-DOT. In addition, Reliance Jio Infocomm Ltd. will also be conducting trials using its own indigenous technology.
The permissions have been given by DoT as per the priorities and technology partners identified by TSPs themselves. The experimental spectrum is being given in various bands which include the mid-band (3.2 GHz to 3.67 GHz), millimetre wave band (24.25 GHz to 28.5 GHz) and in Sub-Gigahertz band (700 GHz). TSPs will also be permitted to use their existing spectrum owned by them (800 MHz, 900 MHz, 1800 MHz and 2500 MHz) for conduct of 5G trials.
The duration of the trials, at present, was for a period of 6 months. This includes a time period of 2 months for procurement and setting up of the equipment.
The permission letters specify that each TSP will have to conduct trials in rural and semi-urban settings also in addition to urban settings so that the benefit of 5G Technology proliferates across the country and is not confined only to urban areas.
The TSPs are encouraged to conduct trials using 5Gi technology in addition to the already known 5G Technology. It will be recalled that International Telecommunications Union (ITU) has also approved the 5Gi technology, which was advocated by India, as it facilitates much larger reach of the 5G towers and Radio networks .The 5Gi technology has been developed by IIT Madras, Centre of Excellence in Wireless Technology (CEWiT) and IIT Hyderabad.
The objectives of conducting 5G trials include testing 5G spectrum propagation characteristics especially in the Indian context; model tuning and evaluation of chosen equipment and vendors; testing of indigenous technology; testing of applications (such as tele-medicine, tele-education, augmented/ virtual reality, drone-based agricultural monitoring, etc.);and to test 5G phones and devices.
5G technology is expected to deliver improved user experience in terms of data download rates (expected to be 10 times that of 4G), up to three times greater spectrum efficiency, and ultra low latency to enable Industry 4.0. Applications are across a wide range of sectors such as agriculture, education, health, transport, traffic management, smart cities, smart homes, and multiple applications of IOT (Internet of Things).
DoT has specified that the trials will be isolated and not connected with the existing networks of TSPs. Trials will be on non-commercial basis. The data generated during the trials shall be stored in India. TSPs are also expected to facilitate the testing of the indigenously developed use cases and equipment as part of the trials. One hundred applications/ use cases selected by DoT after conducting the recent Hackathon on 5G applications can also be facilitated in these trials.
Pursuant to the above, trials were carried out successfully, and ultimately, the spectrum auction took place recently and the 5G network is set to be rolled out soon. This is of course, the offering of the network to subscribers for their usage as provided by telecom operators.
Captive usage of 5G spectrum: With huge interest being shown by some business entities for captive consumption of the spectrum, the Government has on 10th August,2022 undertaken to examine the demand for the same. Captive Non-Public Network (CNPN), or in other words, in-house network, in layman terms will help those entities who wish to avail of the same, to have easier and faster in- house capability, thus boosting its efficiency while providing a dedicated platform, different from the one provided to telecom operators. Different as a result of one customer or subscriber who will avail the same directly from the Department of Telecommunications.
Litigatin on 5G- A litigation against the rollout of the 5G spectrum was initiated before the Delhi High Court on the possible environmental hazards , which came to be dismissed.
At present, there is possibly no other litigation pending or initiated as regards the 5G spectrum rollout, maybe due to the freshness or infancy of the same. If there is any future litigation as regards the same, it would in all probablity be in the realm of awarding of spectrum as a larger issue. Another aspect of any probable litigation would be as regards awarding of Captive Non Public Network (CNPN) or captive usage, but that is likely to be litigation almost like the one that we see in the realm of contracts.
The way forward: As mentioned midway in this article, there is no specific law dealing with spectrum technology and the same is governed by the various enactments mentioned above. The pressing requirement is possibly to have a single law dealing with this area, instead of the bouquet of laws holding the field, which will pave the way for smoothening of the sector and help both the Government and parties in the sector to have a level playing field and do away with the uncertainties associated with various laws governing the field which could result into chaos as compared to a single special legislation which would look at existing and future requirements. A specific law is indeed the need of the hour.
AN ANALYSIS OF UNIFORM CIVIL CODE
UNIFORM CIVIL CODE
Uniform civil code in general words means “One Nation, One Law”
Uniform civil code: The word is comprised of two words “uniform” and “civil code”
UNIFORM MEANS EQUALLY APPLICABLE ON EVERYONE
Civil code means collection of laws governing personal relationships between people. Few examples of civil code are contracts, property and marriage related laws.
The debate for uniform civil code started back in 1835 with the report of second law commission. During this time Britishers felt the need to unify various personal laws.
The concept of uniform civil code is embodied under article 44 of the Indian constitution in chapter IV (DPSP). The article states that: Uniform civil code for the citizens: The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
The words incorporated in article 44 imply that the state shall make great effort to implement Uniform civil code throughout the country.
Although directive principles of state policy are not enforceable in a court of Law, it obligates the state to apply the principles in implementation of laws.
The implementation of Uniform civil code was included by the Bhartiya Janta party in its manifesto during 2019 Lok Sabha election. Removal of Article 370 from constitution of India is the major step towards this agenda. India is a diverse country with various religions and various personal laws governing these religions with implementation of UCC all the religions will be governed by one uniform civil code which will reduce the dominance of personal laws over society.
UNIFORM CIVIL CODE AND PERSONAL LAWS
Implementation of UCC has been a matter of dispute from long time because in country like India religious domination plays a crucial role and majority would prefer their dominance over others religions with its personal religious laws. The idea to integrate people of different religions under one civil law can only be possible if it’s for common good rather than for preservation of custom.
Custom as a source of law gives more importance to personal religious laws rather than one uniform law and if custom will be the focus behind this one unified civil law it will dominate one majority religion over minorities. The centre of attraction behind the uniform law should be Justice rather than antediluvian antifeminist customs.
It was contended during the debates of the constituent assembly that uniform civil code infringes the right to religion guaranteed under part III of the constitution of India.
In the case of John Vallamattom v. Union of India(MANU/SC/2003) it was held that directive principles incorporated under Article 44 do not infringe article 25 (freedom of religion) in any way. In addition to this clause (2) of article 25 saves secular activities associated with religious practices from the right available under clause (1) that empowers the state to regulate or restrict them.
Judicial pronouncements and article 25
The necessity of implementation of Unified Civil Code has been often recommended by Supreme Court. In the case of Nikhil soni v. Union of India the court stated unambiguously that trough a practice can be religious in nature but if may not constitute vital component of that religion.
UCC: THE DEBATE OF CONSTITUENT ASSEMBLY
The speech was given against the motion by several Muslim leaders when it was enacted. It was claimed that it violates fundamental right of religion. Dr. B.R Ambedkar even mentioned, “We have a uniform and COMPLETE CRIMINAL CODE OPERATING THROUGHOUT THE COUNTRY. Which is contained in the penal code and the criminal procedure code. this country also has a civil code which is uniform in its content and applicable throughout the country. The only division in which civil law has not invaded is marriage and succession. It is this little corner which we have not been able to invade so far.
UNIFORM CIVIL CODE IN GOA
Uniform civil code is contained under part IV of the Indian Constitution therefore not enforceable but Goa is the only state which has implemented Uniform civil code in its territory.
The Apex court in Jose Paulo coutinho v. Maria Luiza Valentina Pareira stated that the Uniform civil code of Goa is an ideal for applicability of uniform laws on different religions. However the personal laws in Goa are not uniform in all aspects.
Uniform civil code & elimination of gender biasness
The concept of Uniform civil code is highly associated with elimination of gender bias; every personal law is strongly prejudiced against women in some way or the other. The personal laws are highly patriarchal and male dominant in nature. No personal law is ideally suited to become a model for UCC.
Personal laws are mainly derived their authority and source from customs, but the combined effort of legislature and judiciary have played a major role towards achievement of UCC through legislations and precedents.
Electricity connection cannot be denied only because dispute regarding ownership of land is pending: Gujarat High Court
The bench of Justice Supehia noted that the Petitioners were owners of the concerned agricultural land for which electricity was sought. However, it was observed that the electricity was denied on the ground that the Petitioners were illegally occupying Government land.
The Gujarat High Court in the case Yogesh Lakhmanbhai Chovatiya v/s PGVCL Through the Deputy Manager observed and has clarified that occupiers of a land cannot be denied electricity connection only because a dispute regarding ownership of the land is pending.
The bench comprising of Justice AS Supehia observed and referred to a division bench judgment stating that right and title and ownership or right of occupancy has no nexus with grant of electrical connection to a consumer.
In the present case, the petitioner current occupiers of the land and submitted that they were denied an electricity connection only because the land that they were occupying was in the name of the Government. However, the proceedings were initiated by the Mamlatdar against them u/s 61 of the Gujarat Land Revenue Code for removal of encroachment. Further, to bolster their contention, it was relied by the petitioner on an order of the High Court and Sec 43 of the Electricity Act, 2003 which mandates the supply of electricity to any occupier or owner of premises.
The Petitioners could be said to be ‘occupier’ of the land in question and the connection could not be denied by the Respondent.
The bench of Justice Supehia noted that the Petitioners were owners of the concerned agricultural land for which electricity was sought. However, it was observed that the electricity was denied on the ground that the Petitioners were illegally occupying Government land.
Further, the bench of Justice Supehia concluded while perusing Sec 43 that the provision stipulated that the licensee shall supply electricity to those premises where the application had been filed by the owner or the occupier. Consequently, a reference was made to the order of the Division Bench of the High Court in LPA No. 91/2010 wherein it was observed:
The Court stated that such power being not vested under the law with the company and as the company cannot decide the disputed question of right and title and this court is of the view that ownership or right of occupancy has no nexus with grant of electrical connection to a consumer.
While keeping in view of the aforesaid provisions, it was directed by Justice Supehia that the Respondent-Company to supply electricity connection to the Petitioners in the premises of the property at the earliest in accordance with the list maintained by the name containing the names of the Petitioners in the list.
ANALYSIANG SECTION 194R OF THE INCOME TAX ACT
Recently, Section 194 R was inserted by the Finance Act 2022, which came into effect on July 1st, 2022. CBDT made certain recommendations via Circular 12 from the day of the addition of this section, it has become highly debatable. Before touching the issues of this section, we need to understand the legal provision of section 194 R.
In simple terms, the new section mandates a person who is responsible for providing any benefit or perquisite to a resident to deduct tax at source at 10% of the value or aggregate value of such benefit or perquisite before providing such benefit or perquisite. The benefit or perquisite may or may not be convertible into money, but it must result from such resident’s business or professional activities. As per this section, tax will be deducted by business or profession on any benefits or perquisites of a person who is residing in India. The benefit or perquisite can be in the form of cash or kind, or partially in cash and partially in kind. Tax deduction will be 10 percent if the aggregate value doesn’t exceed INR 20,000. In such a case, tax will not be deducted. Such conditions will not be applicable in If the turnover of business doesn’t exceed INR One Crore, If the turnover of the profession doesn’t exceed INR fifty lakhs, For instance, if a person is a sales agent and he exceeds the target allotted by the company and receives a new car worth INR 5, 00,000/-the value of INR 5,00,000 will be taxed under the head of Profit.
The intention of this section is to expand the scope of deducting tax on benefits or perquisites and to increase transparency in the reporting of benefits and perquisites received by an individual. Because this particular incentive is in kind rather than cash, recipients of such kinds of transactions do not include it in their income tax return. As a result, inaccurate income information is provided. Such an incentive or bonus in kind ought to ideally be reported as income under the 1961 Income-tax Act (ITA). Also, according to Section 28(iv) of the ITA, any benefit or perk received from a business or profession, whether convertible into money or not, must be reported as business income in the hands of the receiver. Now Section 194(R) gives the right to the payee to deduct the amount, whether in cash or kind, arising out of business promotion.
The terms “benefits and perquisites” are not defined under the IT act. If they receive any such perquisites or incentives, whether in cash or in kind, they must deduct TDS. In cases where the benefit is wholly in kind, the person providing such a benefit or perquisite is required to pay TDS on the value of such benefit or perquisite out of his own pocket. In this case, benefits and perquisites are determined as per the value of the purchased price and manufactured price. However, no taxes to be deducted u/s 194R on sales discount, cash discount, or rebate are allowed to customers.
In the matter of ACIT Vs Solvay Pharma India Ltd, the court held that free samples provided by the pharmaceutical company for promotion purposes would be taxable income. As such, free samples cannot be treated as a freebie. The complimentary sample of medication serves solely to demonstrate its effectiveness and to win the doctors’ confidence in the high quality of the pharmaceuticals. Again, this cannot be regarded as gifts given to doctors as they are intended to promote the company’s goods. The pharmaceutical corporation, which manufactures and markets pharmaceutical products, can only increase sales and brand recognition by hosting seminars and conferences and educating medical professionals about recent advances in therapeutics and other medical fields. Since there are daily advancements in the fields of medicine and therapy taking place throughout the globe, it is crucial for doctors to stay current in order to give accurate patient diagnosis and treatment. The main goal of these conferences and seminars is to keep doctors up to date on the most recent advancements in medicine, which is advantageous for both the pharmaceutical industry and the doctors treating patients. Free medication samples provided to doctors by pharmaceutical corporations cannot be considered freebies in light of the aforementioned value.
Hence, under such circumstances, for such a sales effort, the pharmaceutical company may deduct its expenses. The promotion would, however, be taxable income in the hands of the receiver, and the pharmaceutical company would need to deduct TDS on it.
Another question that pops up is that in the case of gifts and perks received on special occasions like birthdays, marriages, and festivals, under such circumstances, Section 194R will only be applied if they arise out of business or profession.
As we know, we are heading towards digitalisation. There are many social media influencers who are playing a crucial role in marketing strategy. Income received by an influencer is calculated by deducting expenditure incurred on their business. Filming costs, such as cameras, microphones, and other equipment; subscription and software licencing fees; internet and communication costs; home office costs, such as rent and utilities; office supplies; business costs, such as travel or transportation costs; and others are examples of what can be written off as a social media influencer. To illustrate how Section 194 R will be applicable in such a situation, let’s consider Nandini is a social media influencer. She received an offer from a company for product promotion in another city. She charged her fee of Rs 88,000 and the travel expense incurred by her was Rs 25,000. Here, the company will reimburse her travel expenses. So, the travel expenditure incurred by the company is covered under the benefits and perquisites provided to Nandini. Hence, TDS is to be deducted under section 194R at the rate of 10%, i.e., Rs 2500 is deductible from the fees payable to Nandini.
There is no further requirement to check whether the amount is taxable in the hands of the recipient or under which section it is taxable. The Supreme Court took the same view in the case of PILCOM vs. CIT in reference to the deduction of tax under Section 194E. It was held by the Hon’ble Supreme Court that tax is to be deducted under section 194E at a specific rate indicated therein, and there is no need to see the taxability under DTAA or the rate of taxability in the hands of the non-resident.
In the matter of ACIT Vs Solvay Pharma India Ltd, the court held that free samples provided by the pharmaceutical company for promotion purposes would be taxable income. As such, free samples cannot be treated as a freebie. The complimentary sample of medication serves solely to demonstrate its effectiveness and to win the doctors’ confidence in the high quality of the pharmaceuticals. Again, this cannot be regarded as gifts given to doctors as they are intended to promote the company’s goods. The pharmaceutical corporation, which manufactures and markets pharmaceutical products, can only increase sales and brand recognition by hosting seminars and conferences and educating medical professionals about recent advances in therapeutics and other medical fields. Since there are daily advancements in the fields of medicine and therapy taking place throughout the globe, it is crucial for doctors to stay current in order to give accurate patient diagnosis and treatment.
GUJARAT HIGH COURT: WRIT PETITION FILED AGAINST PRIVATE UNIVERSITY NOT MAINTAINABLE, REMEDY FOR ALLEGED ARBITRARY TERMINATION LIES UNDER CIVIL LAW.
The Gujarat High Court in the case Shambhavi Kumari v/s Sabarmati University & 3 other(s) observed and has declined to intervene in a writ petition seeking reinstatement with full back wages and benefits filed by an Assistant Professor against a private university, Sabarmati University.
The bench comprising of Justice Bhargav Karia observed and has clarified that the dispute regarding termination was ‘in the realm of a private contract’ and therefore, held that if on the part of the respondent, there is an alleged arbitrary action, the same would give cause to the petitioner to initiate civil action before the Civil Court but in the facts of the present case, the writ petition would not be maintainable against the private educational institution governed by the Gujarat Private Universities Act, 2009.
In the present case, the petitioner was given a three months’ notice starting August 2013, allegedly without any reason. Consequently. Earlier, an application was filled by the petitioner before the Gujarat Affiliated Colleges Service Tribunal and thereafter, withdrew the application to file the writ before the High Court.
It was contested by the respondents that the petition was not maintainable on the ground that the University was a private University and did not fall within the term ‘State’ under Article 12 of the Constitution of India. Therefore, the employment conditions of the Petitioner would not bring her services within the realm of ‘duty or public function.’
It was observed that the petitioner, per contra, insisted that the University was established under the Gujarat Private Universities Act, 2009. However, Universities were established to provide quality and industry relevant higher education and for related matters and hence, it could not be said that the Universities were not performing public duty. It was directed by the State Government and pervasive control over the functioning of it as was mentioned in Sec 31-35 of Chapter VI of the Act. Reliance was placed on Janet Jeyapaul vs. SRM University and ors. where the Top Court had held that the writ petition was maintainable against the deemed university and whose functions were governed by the UGC Act, 1956.
The bench of Justice Karia, while taking stock of the contentions referred to Mukesh Bhavarlal Bhandari and ors vs. Dr. Nagesh Bhandari and ors where the Coordinate Bench of the High Court in similar circumstances had reiterated that merely because the activity of the said research institute ensures to the benefit of the Indian public, it cannot be a guiding factor to determine the character of the Institute and bring the same within the sweep of ‘public duty or public function.
It was observed that the High Court also rejected the reference to Janet Jeyapaul since in the instant case and held that in the realm of a private contract, the Petitioner termination was to be decided.
Further, it was observed that it is not necessary to go into the merits of the case with regard to the issue of show-cause notice for providing an opportunity of hearing resulting into breach of principle of natural justice and weather the action of the respondent University is unfair or not because all such disputes essentially are in the realm of private contract.
Accordingly, the bench dismissed the petition.
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