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Poverty can be addressed through healing touch of law: MP HC issues directions for implementation of poverty alleviation schemes

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In a well-written, well-articulated, well-reasoned and well substantiated judgment titled Omnarayan Sharma Vs State of MP & Ors in W.P. No. 1930/2020 (PIL) that was delivered on July 6, 2021, the Gwalior Bench of Madhya Pradesh High Court has issued directions to the District Legal Services Authorities and the State Authority for ensuring implementation of poverty alleviation schemes promulgated under provisions of Legal Services Authority Act, 1987 and NALSA (Effective Implementation of Poverty Alleviation Schemes) Scheme, 2015. It must be apprised here that a Division Bench of Madhya Pradesh High Court comprising of Justice Sheel Nagu and Justice Anand Pathak have observed thus:

“Poverty, which is a Problem (Social Evil) can be addressed through Law (with its healing touch) as its solution to achieve the ultimate destination of Development.” It also must be mentioned here that the remarks came in a petition against alleged corruption and illegality committed by state authorities in construction of toilets under Swachh Bharat Mission in Bhind District.

To start with, a Division Bench of Gwalior Bench of Madhya Pradesh High Court comprising of Justice Anand Pathak who has authored this learned, laudable, latest and landmark judgment for himself and Justice Sheel Nagu first and foremost points out in para 1 that, “The present petition under Article 226 of the Constitution of India has been preferred by the petitioner as Pro Bono Publico projecting himself to be a public spirited citizen and has raised the grievance regarding illegality and irregularity committed by the respondents, especially respondents No. 6 to 13 who according to petitioner have not undertaken any enquiry over the complaint of petitioner regarding corruption / illegality committed in construction of toilets under Swachh Bharat Mission.”

To put things in perspective, the Division Bench then puts forth in para 3 that, “Precisely stated facts of the case are that on 31/12/2019, one Ramu Chaudhary, resident of village Etahar, District Bhind registered a complaint on Chief Minister Helpline Portal that Sarpanch, Secretary and other officers of the Gram Panchayat Ater, District Bhind have embezzled public fund in the name of construction of toilets but neither toilets have been constructed nor any amount for construction has been received by 93 beneficiaries. Despite making complaint by the petitioner on behalf of the beneficiaries to Collector, District Bhind no affirmative steps have been taken.”

While dwelling on the petitioner’s grievance, the Division Bench then enunciates in para 4 that, “It is the grievance of the petitioner that in other blocks of District Bhind also corruption and illegality have been conducted in construction of toilets under Swachh Bharat Mission. Petitioner placed the list of beneficiaries (94 in number) vide Annexure P/3, who did not receive the benefits of toilets nor any amount. Petitioner also referred the screen shot of app. (Pandit Deendayal Shram Seva App) to demonstrate that allegedly amount has been received by the beneficiaries but in fact bogus papers have been prepared and amount has been siphoned off.”

As we see, the Bench then puts forth in para 5 that, “Learned counsel for the respondents/State opposed the prayer and placed certain documents on record. It is the submission of learned counsel for the State that immediately after issuance of notice in this writ petition (on 27/8/2020), CEO, Zila Panchayat, Bhind vide order dated 14/1/2021 (Annexure R/1) constituted a committee to look into the complaint made by petitioner. He also

referred the show cause notice issued by same authority to then Panchayat Secretary, Gram Rojgar Sahayak and other Secretaries, who worked at the relevant point of time including the then Supervisor.

Therefore, as per respondents, enquiry is under process. Learned Government counsel assured this Court that due enquiry would be conducted and if any illegality or irregularity is found then same shall be taken care of earnestly and consequent action shall be taken as per enquiry report.”

Needless to say, after hearing learned counsel for the parties and perusing the record as stated in para 7, the Division Bench then lays bare in para 8 that, “This is a case by way of Pro Bone Publico; whereby, petitioner as public interest litigant raised the question of alleged illegality and corruption brewing in the Gram Panchayat Etahar, Tasil Ater, District Bhind regarding implementation of Swachh Bharat Mission Scheme, which is a flagship scheme of Government of India to solve problems of sanitation and waste management in India by ensuring hygiene across the country. Primary object of this scheme is to eliminate open defecation and improve solid waste management. In the challenging period of COVID-19 Pandemic cleanliness and public hygiene assumed much significance. Therefore, it is the solemn duty of the District and Local Administration as well as local self government to look into the effective implementation of this scheme.”

Simply put, the Division Bench then envisages in para 9 that, “National Legal Services Authority (NALSA) under the provisions of Legal Services Authorities Act, 1987 has framed certain schemes encompassing wide range of subjects and the compendium of the said schemes reflects one such scheme namely NALSA (Effective Implementation of Poverty Alleviation Schemes) Scheme, 2015. This scheme is built on the foundation that poverty is a multi dimensional experience and is not limited to the issues of income. Multi dimensional poverty includes issues like health (including

mental health), access to water, education, sanitation, subsidies and basic services, social exclusion, discrimination etc.”

Furthermore, the Division Bench then makes it clear in para 10 that, “Further, in identifying the specific scheme for implementation at the State and District Level, Legal Services Authorities as per NALSA are expected to be cognizant of the fact that various vulnerable and marginalized groups experience poverty in myriad and unique ways.”

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Be it noted, the Division Bench then points out in para 11 that, “To address this exigency faced by people the Scheme of 2015 as referred above has been conceptualized.

In the scheme, following topics have been discussed: Clause 4.-Objectives of the Scheme:-,

Clause 5.-Identification of Poverty Alleviation Schemes:-,

Clause 6.-Organization of Awareness Programmes:-,

Clause 7.- Legal Services Officers and Para-legal Volunteers:-,

1) Every District Authority and Taluka Legal Services Authority shall designate at least three panel lawyers as Legal Services Officers for

the purpose of this Scheme. 2) District Authorities shall constitute teams of PLVs under a Legal Services Officer to implement this Scheme and the Legal Services Officer will supervise and mentor the PLVs in his team to help the beneficiaries access the various schemes of the Govt.

3) District Authorities shall conduct specialised training programs for panel of lawyers, members working in legal services clinics, members of panchayats, law students and other para-legal volunteers to assist in the implementation of the Scheme, to sensitise them regarding the needs of persons belonging to socially and economically weaker sections and the benefits that they can avail through Poverty

Alleviation Schemes.

Clause 8.- Legal Assistance for Access to Poverty Alleviation Schemes

Legal assistance must be provided to all the Scheme Beneficiaries seeking access to Poverty Alleviation Schemes. Legal Services to be provided by Legal Services Officers or volunteers under this Scheme includes, inter alia:

1) Informing the Scheme Beneficiaries about each of the Poverty

Alleviation Scheme to which they are entitled, and the benefits

thereunder

2) Assisting the Scheme Beneficiary in procuring the documents

required for availing the benefits under any of the Poverty

Alleviation Scheme

3) Informing the Scheme Beneficiary of the name and address of the

designated authority or the officer to be approached for registration

under any of the Poverty Alleviation Schemes

4) Offering to send para-legal volunteers including from the legal

services clinics with Scheme Beneficiaries to the office of the

designated authority or the officer to be approached under any of the

Poverty Alleviation Schemes

5) Informing the Scheme Beneficiary of her option to register a

complaint with the Legal Services Officer or para-legal volunteer,

about any designated authority or officer under any of the Poverty

Alleviation Schemes who refuses to cooperate with the Scheme

Beneficiary in providing her access to the benefits that she is

entitled to under the Poverty Alleviation Scheme.

6) Maintaining a record of all the complaints received under sub-clause(5).

7) Providing Scheme Beneficiaries with the contact number, if

available, of the Legal Services Officer, and availability of the

Legal Services Officer on call during working hours for such Scheme

Beneficiaries to whom contact number is provided.

Clause 9.-Action by Legal Services Officers on complaints;

1) On receiving complaints under sub-clause (5) of clause 8, each

Legal Services Officer shall herself personally accompany the

Complainant Beneficiary to the office of the designated authority or

officer, and assist the Complainant Beneficiary in availing the

benefit that she is entitled to under the Poverty Alleviation Scheme.

2) In case the designated authority or officer fails to register the

Complainant Beneficiary in the Poverty Alleviation Scheme, the Legal

Services Officer shall submit a complaint to the District Authority.

The letter of complaint shall describe the conduct of the designated

authority or officer who refused to register the Complainant

Beneficiary under the Poverty Alleviation Scheme, and circumstances of

such refusal and whether refusal was despite submission of all

necessary documents.

Clause 10.- Action by District Authority and State Authority on complaints:-

1) On receiving a complaint regarding the designated authority or

officer, the District Authority shall seek a report from the concerned

officer regarding the reason for denying the benefits under the

Poverty Alleviation Scheme to the complainant Beneficiary. In the

event that sufficient reason is not provided by the concerned officer

for refusal to register the Complainant Beneficiary in the Poverty

Alleviation Scheme or to provide benefits under the Poverty

Alleviation Scheme, the District Authority shall immediately

communicate to the superior officer in the department the details of

the refusal to provide access to the Poverty Alleviation Scheme.

2) If the superior officer, in the opinion of the District Authority,

also withholds the benefits under the Poverty Alleviation Scheme

without sufficient cause, the District Authority shall then

communicate the same to the State Authority.

3) On receiving such communication from the District Authority, the

State Authority may choose to further pursue the matter with the

concerned department or file appropriate legal proceedings to ensure

that the Complainant Beneficiary receives the benefit under the

Poverty Alleviation Scheme.

4) The District Authority, through para-legal volunteers or legal

services clinics, shall provide regular updates to the Complainant

Beneficiary about the status of the complaint.

Clause 11.-Evaluation of the Scheme:-

1)Every Legal Services Officer shall follow-up with each Scheme

Beneficiary who sought legal assistance under this Scheme and record:

a. if such person was able to register under the Poverty Alleviation

Scheme sought to be registered under and whether such benefits were

being received

b. any grievances experienced by the Scheme Beneficiaries in getting

registered and availing benefits under the various Poverty Alleviation

Schemes.

2) The District Authority shall compile the observations made under

sub-clause (1) for all the Legal Services Officers working under the

Scheme in the district and shall send a copy of such observations in a

complied document to the State Authority every six months.

3) The State Authority shall consolidate the compiled documents

received from all the District Authorities under sub-clause (2) and

hold a meeting every 6 months to review the functioning and

effectiveness of this Scheme. The minutes of such meeting shall be

recorded and published as a public document.

4) If in the meeting under sub-clause (3) the State Authority finds a

substantive or procedural defect in any of the Poverty Alleviation

Schemes which makes seeking benefits under the scheme a problem for

the Scheme Beneficiaries, such defect must be brought to the notice of

the Central Government or the State Government as the case may be for

improving the specific Poverty Alleviation Scheme and / or its

effective implementation.””

To be sure, the Division Bench

then observes in para 12 that, “Perusal of the whole scheme indicates

that certain responsibilities have been bestowed upon the State and

District Legal Services Authorities to train the legal and para-legal

volunteers for providing legal assistance for giving access to

beneficiaries to Poverty Alleviation Scheme and to act upon the

complaints if the benefits have not been extended to him/her or if any

authority refuses to cooperate with the scheme beneficiaries in

providing access to the benefits.”

As it turned out, the Division

Bench then states in para 13 that, “As referred in the Scheme of 2015,

poverty is a multi dimensional experience and it includes basic

services including sanitation etc. and when a duty has been cast upon

Legal Services Authority as per the Legal Services Authority Act, 1987

and Scheme of 2015 then if any complaint is received by the Legal

Services Officer from complainant / Scheme Beneficiary then such

complaint like the present one can be taken care of by the District

Authority as per Clause (9), (10) and (11) of the Scheme of 2015 by

the District Authority and even by the State Authority.”

Quite damningly, the Division

Bench then minces no words to state in para 14 that, “It is being

experienced by this Court that many complaints come regarding poor

implementation, corruption and / or irregularities in Schemes like

MGNREGA and Swachh Bharat Mission regarding construction of toilets or

non-grant of amount to the beneficiaries for construction of toilets,

etc. and by way of Public Interest Litigation, people seek Continuing

Mandamus from this Court, whereas, provisions of Act of 1987 and

Scheme of 2015 are apparently also available to address such

problems.”

Notably, the Division Bench then brings

out in para 15 that, “Clause 10(3) of Scheme of 2015 gives option to

choose between the Persuasion (with the concerned Department) or

Petition (to file appropriate legal proceedings). Here, appropriate

legal proceedings may include complaint before the Lokayukt, if it

comes under the purview of said Authority or private complaint against

the erring persons or to file a Petition on behalf of complainant

under Article 226 of the Constitution of India as Public Interest

Litigation. It can club cause of more than one beneficiaries also.”

In the present context, the

Division Bench then brings out in para 16 that, “Recently, Ministry of

Panchayati Raj, Government of India has undertaken steps in respect of

Online Audit and Social Audit of 20% Gram Panchayats’ in every Janpad

Panchayat and therefore, it appears that Government also intends to

make these Institutions more accountable which are having direct

bearing over day to day welfare of people at large. In pursuance

thereof, a circular has also been issued by Panchayat Raj Directorate,

Madhya Pradesh, Bhopal dated 17/2/2021 to all CEOs of Zila Panchayats

/ Janpad Panchayats to organize camps in this regard.”

Of course, the Division Bench then hastens to

add in para 17 that, “State Authority may contemplate about

preparation of one Software and Mobile Application ( Mobile App.) for

keeping a tab over the complaints received and their outcome. This

Software / Mobile App. may coordinate amongst the concern departments

so that complaints received over the said application (App.) would be

displayed all over. Concerned stakeholders and State Authority /

District Authority would be in a better position to proceed as per the

spirit of Act of 1987 and Scheme of 2015. State Authority even has

power to make regulations as per Section 29-A of the Act 1987 to

provide for all matters for which provision is necessary or expedient

for the purposes of giving effect to the provisions of Act.”

Quite scandalously, the Division

Bench then puts forth in para 18 in simple, suave and straight

language that, “Here, in the case in hand, it appears that certain

beneficiaries allegedly did not receive the benefits under Swachh

Bharat Mission about construction of toilets. As per the allegations,

neither toilets have been constructed by the concern authorities nor

amount has been transferred in their accounts and it is the

allegations that amount of 93 beneficiaries (or may be 94) has been

siphoned off by Sarpanch / Panchayat Secretary / Gram Rojgar Sahayak

etc. Allegations are prima facie serious in nature.”

Quite categorically, the Division Bench then

puts forth in para 19 that, “This Court cannot go into the

authenticity or otherwise of the allegations at this juncture

especially when CEO, Zila Panchayat is seized of the matter vide show

cause notices issued to erring officers / authorities in this regard.

Therefore, at this juncture, any observation would pre-empt the

controversy. However, Collector and CEO, Zila Panchayat, Bhind are

directed to look into the allegations with utmost promptitude and role

of concerned Sarpanch, Panchayat Secretary, Gram Rojgar Sahayak,

Supervisor and any other person involved in the transaction / or

having any responsibility under the Swachh Bharat Mission Scheme

failed or acted mischievously be enquired into in accordance with law.

If any conclusion has not been drawn in the enquiry up till now then

enquiry be conducted expeditiously within two months from the date of

passing of this order and outcome of the enquiry be intimated to the

office of this Court and office shall place the matter under the

caption “Direction” for perusal of this Court and even if conclusion

is drawn then consequential follow up action be informed to office of

this Court.”

Significantly, the Division Bench then

directs in para 20 that, “Before parting, this Court feels it

appropriate to give direction to the District Legal Services Authority

to update the contents of different schemes promulgated under the

different provisions of Legal Services Authority Act, 1987 including

the Scheme in hand i.e. NALSA (Effective Implementation of Poverty

Alleviation Schemes) Scheme, 2015 and ensure that in their respective

jurisdiction (District) Poverty Alleviation Scheme especially Swachh

Bharat Mission Scheme and Mahatma Gandhi National Rural Employment

Guarantee Act, 2005 (MGNREGA), etc. are being properly executed and

intended beneficiaries get the benefits of the scheme and if any

authority refuses to cooperate with the beneficiary in providing him /

her access to the benefits that she is entitled to under any Poverty

Alleviation Scheme, then the responsible authority under District

Legal Services Authority (DALSA) shall proactively take care of the

situation by proceeding as per Clause 9, 10 and 11 of the Scheme,

2015.”

More significantly, the Division Bench then further directs in

para 21 that, “It is further expected from the Authority and its

Office Bearers that they shall constantly organize awareness

programmes as well as training programmes for Panel Lawyers / Legal

Volunteers / Para-legal Volunteers as the case may be in a

constructive and proactive manner. The training must sensitize the

volunteers / activists to the notion that they have to act as Healers

of the Society looking to the great responsibility bestowed upon them

of Poverty Alleviation. Poverty, which is a Problem (Social Evil) can

be addressed through Law (with its healing touch) as its solution to

achieve the ultimate destination of Development.”

Most significantly, the Division

Bench then also directs in para 22 that, “In view of aforesaid

discussion, this Court summarizes the following directions:-

(i) If, any complaint is received regarding inaction, inappropriate

execution, corruption or any matter related thereto which comes under

the purview of Legal Services Authority Act, 1987 and NALSA (Effective

Implementation of Poverty Alleviation Schemes) Scheme, 2015 then

District Legal Service Authority (DALSA) shall proactively take care

of the situation by proceeding as per Clause 9,10 and 11 of the Scheme

of 2015;;

(ii) State Authority / District Authority may file appropriate legal

proceedings as per Clause 10 (3) of Scheme of 2015 by way of complaint

before the Office of Lokayukt as per relevant provisions or may file

Private Complaint against the erring persons or may file a petition if

subject matter requires so by way of a Public Interest Litigation

under Article 226 of the Constitution of India;

(iii) State Authority is requested to contemplate for framing of

suitable regulations as per the provisions of Act of 1987, especially

under Section 29-A for effective implementation of different schemes

of Government of India / State Government fall under NALSA (Effective

Implementation of Poverty Alleviation Schemes) Scheme, 2015. A further

request is made to contemplate about preparation of a Software /

Mobile Application (Mobile App.) for keeping a tab over the complaints

received and their outcome; and

(iv) District Authority and its Office Bearers are expected to

regularly organize awareness / training programmes for Panel Lawyers /

Para-legal Volunteers in a constructive and proactive manner to

sensitize them with the notion that they have to act as Healers of the

Society, looking to the great responsibilities bestowed upon them.

Secretary, SALSA shall coordinate and guide all such awareness /

training programmes.

Moving on, the Division Bench then

holds in para 23 that, “Consequently, petition is disposed of with a

direction to the respondents especially Collector and CEO, Zila

Panchayat Bhind to look into the matter and complete the enquiry, if

not already completed within two months from the date of passing of

this order and if any person is found guilty then consequential follow

up action shall be ensured in accordance with law. If the enquiry is

already concluded then Collector and CEO are directed to place the

enquiry report before the office of this Court so that same can be

placed before this Court for perusal.”

On a final note, the Division Bench while disposing of the petition as stated in para 24 then holds

in para 25 that, “A copy of this order be sent to Principal Secretary,

Panchayat Raj, Government of Madhya Pradesh, Bhopal as well as to

Member Secretary, SALSA, Jabalpur for circulation to all District

Legal Service Authorities (DALSA) for sensitization and implementation

of the concept as referred above by this Court.”

It merits no reiteration that the District Legal Services Authorities and the State Authority must

comply with this brief, brilliant, bold and balanced judgment by a

Division Bench of Gwalior Bench of Madhya Pradesh High Court

comprising of Justice Anand Pathak and Justice Sheel Nagu so that

poverty can be addressed through healing touch of law as has been

directed also. All such measures if implemented honestly in letter and

spirit then it will certainly go a long way in emancipating the

‘poorest of the poor’ which is the crying need of the hour also! There

is no reason why they should not be implemented at the earliest. It

certainly brooks no more delay anymore!

Sanjeev Sirohi, Advocate,

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Legally Speaking

WHOLE POLICE STATION SHOULD BE MONITORED THROUGH CCTVS INCLUDING INTERROGATION ROOM: P&H HC

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In one of the best judgment that I have ever read, it is most heartening to learn that the Punjab and Haryana High Court in a very commendable, cogent, courageous, composed and creditworthy judgment titled Kaushal v State of Haryana and others in CRM-M-43672 of 2021 delivered on January 7, 2022 has directed that CCTVs should be installed in every part of police stations including the interrogation room as per the directions issued by the Apex Court. According to the single Judge Bench comprising of Justice Amol Rattan Singh of Punjab and Haryana High Court, the directives issued by the top court clearly state that no portion of police stations should be left uncovered by CCTVs. The court further stated that our country cannot make the excuse that our interrogations techniques are different than that of western countries and authorities cannot use methods like the third degree as a means of interrogation.

To start with, in this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Justice Amol Rattan Singh of Punjab and Haryana High Court, the ball is set rolling by first and foremost pointing out that, “Case heard by way of video conferencing. By this petition, the petitioner seeks a direction to respondents no.1 to 3, with a prayer that whenever the petitioner is sought to be taken for interrogation in any case, a videography be done of his leaving the jail premises till his reaching the concerned police station and during interrogation, a videography be also done.”

While continuing in the same vein, the Bench then states that, “It is further prayed that during interrogation his medical examination be also got conducted through a board of doctors or through a civil hospital, so that if any torture ‘is done to him’, then it can be revealed through the said medical examination; with a further prayer made that when he is to be taken outside jail on remand, then either his family members or his lawyer be informed of the location, with his lawyer to be permitted to be present there, where he is being taken and appropriate security be also provided so that he may not be killed in a fake encounter. It is further prayed that respondents no.1 to 3 be directed to comply with the provisions of Section 31 of the Prisons Act, 1894.”

To be sure, the Bench then discloses in the next para that, “A detailed order had been passed by this court on 03.12.2021, directing the DGPs of Punjab and Haryana to file affidavits in response to the observations made in that order, in reply to which both, the DGP, Punjab and the DGP, Haryana, have filed affidavits, both dated 06.01.2022, which are ordered to be taken on record. The affidavit earlier filed by the SSP, Chandigarh, dated 26.10.2021, which is now on the case file, is also ordered to be taken on record.”

While narrating what happens with many of the prisoners, the Bench then points out that, “Before proceeding further, what has been contended by the petitioner in paragraph 22 of the petition is again being reproduced in this order, which is as follows:- 22. That the incidents that are happening with the petitioner inside the jail and during remand are as follows:-

i) The investigating agency spits on the floor and asks the petitioner to lick it and if the petitioner refuses to do so, then he is forcible made to lick the spit of the police officers.

ii) The investigating officers urinates on the face and on the body of the petitioner after removing his clothes.

iii) The petitioner is made to be naked throughout the remand and given merciless beatings.

iv) Sharp objects are inserted in the private parts of the petitioner.

v) The petitioner is given electric shocks behind is ears and on his private parts so that he is tortured badly and even signs of said torture are not openly visible to the ld. Magistrate as well as medical officer.

vi) His legs are put in wooden logs and then pulled aside thereby causing damage to his muscle and rollers are rolled over his thighs so that the petitioner feels the worst kind of pain and still there is no visible mark of injury.

vii) The petitioner legs are tied with a rope and he is hanged with his head down and this is repeated every day while in police remand.””

As anticipated, the Bench then states that, “As regards the allegations of absolute inhuman treatment, as made in the aforesaid paragraph, as expected, the allegations have been completely denied by both the DGPs, with is also stated that no such allegation was ever made earlier by the petitioner and that therefore the petitioner has only made the allegations with mala fide intentions.”

Most significantly, what forms the cornerstone of this notable judgment is then elucidated stating that, “As regards video recording of investigation of the interrogation process, the DGP, Haryana, has stated that there is no such provision in the Cr.P.C. for conducting investigation under surveillance of CCTV cameras. The DGP, Punjab, is conspicuously silent in his affidavit on that aspect. Though, as regards installation of video cameras in all police stations, as pointed out by the learned State counsel, in the affidavit of the DIG (Law & Order), Haryana, dated 02.12.2021, it has already been stated that CCTV cameras are installed in all entry and exit gates of prisons and all police stations (which has already been noticed in the order previously passed by this court), it is to be noticed that such cameras were also installed by both the States on directions issued by the Supreme Court and this court, with Mr. Ghai again pointing today to the directions issued by the Supreme Court in the case of Paramvir Singh Saini v. Baljit Singh and others (2021) 1 SCC 184, which read as follows:-

“16. The State and Union Territory Governments should ensure that CCTV cameras are installed in each and every Police Station functioning in the respective State and/or Union Territory. Further, in order to ensure that no part of a Police Station is left uncovered, it is imperative to ensure that CCTV cameras are installed at all entry and exit points; main gate of the police station; all lock-ups; all corridors; lobby/the reception area; all verandas/outhouses, Inspector’s room; Sub-Inspector’s room; areas outside the lock-up room; station hall; in front of the police station compound; outside (not inside) washrooms/toilets; Duty Officer’s room; back part of the police station etc.

17. CCTV systems that have to be installed must be equipped with night vision and must necessarily consist of audio as well as video footage. In areas in which there is either no electricity and/or internet, it shall be the duty of the States/Union Territories to provide the same as expeditiously as possible using any mode of providing electricity, including solar/wind power. The internet systems that are provided must also be systems which provide clear image resolutions and audio. Most important of all is the storage of CCTV camera footage which can be done in digital video recorders and/or network video recorders. CCTV cameras must then be installed with such recording systems so that the data that is stored thereon shall be preserved for a period of 18 months. If the recording equipment, available in the market today, does not have the capacity to keep the recording for 18 months but for a lesser period of time, it shall be mandatory for all States, Union Territories and the Central Government to purchase one which allows storage for the maximum period possible, and, in any case, not below 1 year. It is also made clear that this will be reviewed by all the States so as to purchase equipment which is able to store the data for 18 months as soon as it is commercially available in the market. The affidavit of compliance to be filed by all States and Union Territories and Central Government shall clearly indicate that the best equipment available as of date has been purchased.

18. Whenever there is information of force being used at police stations resulting in serious injury and/or custodial deaths, it is necessary that persons be free to complain for a redressal of the same. Such complaints may not only be made to the State Human Rights Commission, which is then to utilise its powers, more particularly under Sections 17 and 18 of the Protection of Human Rights Act, 1993, for redressal of such complaints, but also to Human Rights Courts, which must then be set up in each District of every State/Union Territory under Section 30 of the aforesaid Act. The Commission/Court can then immediately summon CCTV camera footage in relation to the incident for its safe keeping, which may then be made available to an investigation agency in order to further process the complaint made to it.”

To put it differently, the Bench then observes that, “Hence, with the directions issued by the Supreme Court also being to the extent that cameras be installed at not just entry and exit points and main gates of police stations, but also in all lock-ups, corridors, lobby and reception areas, verandas, out houses, rooms of officials, outside the lock-up rooms, station hall and in front of the police station compound, as also outside washrooms and toilets, the obvious implication is that no part of the police stations would be left uncovered by CCTV surveillance. Naturally therefore, any interrogation room would also be covered by such directions.”

Furthermore, the Bench then holds that, “Consequently, the DGP, Haryana, the DGP, Punjab, as also the DGP, U.T., Chandigarh, are now directed to file affidavits as to whether the aforesaid directions of the Supreme Court have been complied with or not, and if of course the matter is still being monitored by the Supreme Court, any order passed after 02.12.2020 would be brought out in the affidavits to be filed by the DGPs of both the States and the U.T., Chandigarh.”

Be it noted, the Bench then points out that, “It is to be again specifically noticed that the contention of the DGP, Haryana, to the effect that there is no such provision in the Cr.P.C. would seemingly get completely negated by the aforesaid directions given by the Supreme Court of India, with it to be highlighted by this court (which obviously would be in the knowledge of every authority), that as per Article 142 of the Constitution of India, the Supreme Court, in the exercise of its jurisdiction, may pass such decree or order as is necessary for doing complete justice in any cause or matter pending before it, and any order or decree so passed would be enforceable throughout the territory of India. Further, the law declared by the Supreme Court would be binding on all courts as per Article 141.”

As a corollary, the Bench then naturally observes that, “Consequently and obviously, non-compliance of the directions issued by the Supreme Court in Paramvir Singh Sainis’ case, would amount to contempt of Court and this court would, naturally, also be bound to ensure that the directions issued by the Supreme Court are actually carried out at ground level by the States and Union Territory falling within the jurisdiction of this court. Hence, the aforesaid direction to the DGPs.”

At the risk of repetition, the Bench then envisages that, “Of course, to repeat, if the Supreme Court has passed any further order after 02.12.2020, as would grant further time to the States to comply with the directions given on that date, or the order issued has been modified in any manner, such orders would be brought out very specifically in the replies to be filed by the DGPs.”

It is worth noting that the Bench then mines no words to hold that, “Further, it is directed that not just in the case of the present petitioner, but in the case of every person who is in police custody or is being taken into police custody, all provisions of the Cr.P.C., including Section 41-B, 41-C, 41-D and 54, 55 and 55-A would be meticulously followed, with compliance reports in that regard to be made a part of the report under Section 173 of the Cr.P.C., as regards even medical examination necessarily to be conducted in terms of Section 55-A thereof.”

Quite ostensibly, the Bench then hastens to candidly add that, “Naturally, any non-compliance of the said statutory provision would amount to violation of the direction hereby given and any accused would have his/her remedy available to him/her in respect of violation of any such provisions and the directions given.”

Most remarkably, the Bench then is quite forthright in holding that, “It is to be again reiterated in this order, as was said in the last order, that no court is oblivious to the fact that the police faces a very uphill task in dealing with criminals, especially hardened criminals and the work done by the police force and any investigating agency is to be highly appreciated, in trying to apprehending criminals and actually apprehending them and bringing them to justice; yet, as per the constitutional scheme and the statutory provisions framed thereunder in India, not even the worst criminal can be denied a fair procedure in terms of the statutory provisions laid down in the Code of Criminal Procedure, 1973, and any such law in force. Hence, violation of such procedure, especially leading to violation of human rights even in the case of the worst criminal, cannot be ignored by any court.”

Most forthrightly, the Bench then also underscores that, “Further it is not an excuse for us, in India, to take a plea that many other countries are far more advanced than us and therefore there can be no comparison with the methods adopted there, in interrogating accused persons here. We are the 5th or 6th largest economy in the world and therefore any such plea taken would only seem to be taken as an excuse to not actually adopt contemporary methods of investigation, including interrogation, rather than taking shortcuts by using third degrees methods etc.”

Finally, the Bench then concludes by holding that, “Adjourned to 09.02.2022. To be shown in the urgent motion list.”

To sum it up, it merits no reiteration that what the Punjab and Haryana High Court has directed must be strictly implemented in letter and spirit. Of course, it must be rigorously ensured that the whole police station is monitored most effectively through CCTVs including interrogation room as directed most commendably by the High Court! No doubt, it must also be regularly ensured that no third degree method is resorted to by police under any circumstances and those who are found complicit in indulging in torture must be punished adequately and strictly so that the right message percolates among the men in uniform that they cannot take the right to life and personal liberty as guaranteed to every person as a fundamental right in India under Article 21 of the Constitution is actually rigorously implemented on the ground also where it matters the most! Let’s fervently hope so because this is exactly what forms the touchstone of this most commendable judgment!

Sanjeev Sirohi, Advocate.

CCTV systems that have to be installed must be equipped with night vision and must necessarily consist of audio as well as video footage. In areas in which there is either no electricity and/or internet, it shall be the duty of the States/Union Territories to provide the same as expeditiously as possible using any mode of providing electricity, including solar/wind power.

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A comparative study on capital punishment in India

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India is a well emerging nation simultaneously bunches of crime percentages were expanding these days. There are heaps of regulation in India to pause and control wrongdoings, despite the fact that the wrongdoing rates are expanding in light of the fact that the disciplines are not adequate for the crimes. The discipline ought to be extreme to lessen the crime percentage. All disciplines depend on a similar rationale to give punishment for the transgressor. There are various types of discipline in India like capital discipline, life detainment, detainment etc., Capital discipline is known as the most serious type of discipline.. This paper says about the situation with the death penalty generally the world and furthermore characterizes the idea of capital offense. It additionally clarifies about the methods of capital discipline in India . This article clarifies two significant speculations connected with the death penalty, to be specific reformative hypothesis and preventive hypothesis. In this exploration the specialist additionally clarified about most extraordinary of uncommon cases. This article referenced with regards to abolitionist and retentionist nations, likewise the death penalty in old India. This article has a point by point view about the capital discipline in India and furthermore the techniques for execution in India.

INTRODUCTION

India is a country which comprise of enormous number of violations and crooks. In India all disciplines depend on the thought process to give punishment for the miscreant. There are two fundamental purposes behind monumental the discipline, one is the transgressor ought to endure and other one is forcing discipline on miscreants deters other from doing wrong. There are various types of discipline in India in light of their offense like the death penalty, detainment, life imprisonment, imprisonment with fine, ,etc. In this exploration the analyst zeroed in on the death penalty or capital punishment. The death penalty is one of the significant piece of Indian criminal equity framework. Violations bring about capital punishment are known as capital wrongdoings or capital offences. The term the death penalty is gotten from the Latin word “capitalis” signifies “with respect to head”. The term capital punishment is otherwise called capital punishment .Capital Discipline is an interaction by an individual is executed by a state for their criminal offense. Capital discipline or capital punishment implies the guilty party condemned to death by the official courtroom for a criminal offense. The death penalty which has been granted for the most terrible wrongdoings against humankind .Death punishment varies from spot to place, state to state and nation to country. There are numerous common liberties developments in India which says the death penalty is unethical. The common liberties associations are contended that death penalty influence one individual’s right. In jurisprudence, criminology and punishment, the death penalty implies a sentence of death.

Indian criminal statute depends on the blend of two hypotheses. The constitution too gave powers to president and lead representative to suspend or exonerate capital punishment. In India capital discipline is granted for the most genuine and appalling offenses. The death penalty is given for murder, robbery with murder, waging battle against the public authority and abetting mutiny,etc.,. Capital punishment is given just when the court reaches a conclusion that life detainment is lacking, in light of circumstance of the case. The Main point of this review:

To learn about the death penalty in India.

To learn about the criminological methodology of the death penalty.

CAPITAL PUNISHMENT IN INDIA

The death penalty is a lawful capital punishment in India. India gives the death penalty for a genuine offences .In India the death penalty is granted for generally egregious and terrible offense. In India Article 21 of the Indian constitution is”security of life and individual freedom”. This article says,” No individual will be denied of his life or individual freedom besides as per technique set up by law”. This article says right to life is guaranteed to each resident in India. In India IPC gives capital punishment as a discipline for different offenses, for example, criminal conspiracy, murder, waging battle against the government, abetment of insurrection, dacoity with murder, and hostile to – psychological warfare. The Indian Constitution has arrangement for kindness of capital discipline by the President. There are 22 the death penalty is occurred in India starting around 1995. After the autonomy a there are 52 the death penalty is taken in India In “Mithu vs territory of Punjab” the Supreme Court struck down the IPC Section 303 which give obligatory capital punishment for the offenders, India casted a ballot against a United Nations General Gathering goal requiring a restriction on the demise penalty. In November 2012, India again proceed with its stance on the death penalty by casting a ballot against the UN General Assembly draft goal demand. to boycott passing penalty.

CASE LAWS

MITHU VS STATE OF PUNJAB ( 1983)

In this case the Supreme Court struck down Section 303 of the Indian Penal Code, which provided for mandatory death sentence for offenders.

BACHAN SINGH VS STATE OF PUNJAB

In this case the Supreme Court says that capital punishment was given only to the rarest of rare Cases

JAGMOHAN VS STATE OF UP

This was the first case dealing with the question of constitutional validity of capital punishmentin India.

METHODS OF EXECUTION IN INDIA

In India the capital punishment is executed by hanging or shooting.

HANGING

All capital punishment in India is implemented by hanging. After independence , In Mahatma

Gandhi case Godse was the first person to be executed by capital punishment in India. The SC

of India suggested capital punishment must be given only to the rarest of rare cases in India .

EXECUTION

In India the Army Act and Air Force Act also provide implementation of capital punishment in India In Air Force Act, 1950, section 34 allows the court martial to thrust the death sentence for the unlawful act mentioned in section 34(a) to (o) of The Air Force Act, 1950. In Indian the government mostly used hanging method to execute capital punishment.

CRIMINOLOGICAL APPROCH OF CAPITAL PUNISHMENT-:

There are two types of theories of punishment in capital punishment are-:(1)- Reformative theory

(2)- Preventive Theory

REFORMATIVE THEORY

“tit for tat turn the entire world blind” by Mahatma Gandhi. This line is the pushed of reformative hypothesis of discipline. All speculations depend on the guideline to offender. The primary goal of every one of these hypothesis is to change the sentenced individual through individual treatment. The principle point of the reformative hypothesis is to instruct or change the wrongdoer without anyone else. A guilty party is discipline for his own benefit. This hypothesis has been upheld from different sides. Reformative hypothesis support criminal science. Criminal science says each wrongdoing as phenomenon, a gentle type of madness. criminal human sciences ,criminal social science and therapy upholds Reformative hypothesis. This hypothesis intends to address the criminal personalities into a decent way and they can lead a day to day existence like typical resident. This hypothesis condemn all sort of corporal punishment.

PREVENTIVE THEORY

The principle point of this preventive hypothesis is to get the wrongdoer far from the general public. As per preventive hypothesis the fundamental point of discipline is to set a model for other people and keep them from crimes. In this hypothesis the guilty parties are rebuffed with death punishment, life detainment. Preventive hypothesis was upheld by numerous law reformers on the grounds that preventive hypothesis has adapting Penal law. On numerous reformers view the preventive hypothesis has a genuine impact on guilty parties. The primary reason for preventive hypothesis is to make strides that blamed individual doesn’t rehash the wrongdoing after satisfaction in Punishment. This hypothesis clarifies that capital discipline as a most extreme type of discipline due to its disadvantage impact. A man has ended the existence of another man. So he is dependable to be denied of his life. In India they follows preventive hypothesis.

CONCLUSION

In India, the death penalty has been Practiced since old occasions. Numerous nations nullified capital punishment11. At the point when we check out our public wrongdoing insights capital punishment has not ended up being obstacle for doing offense, the wrongdoings rates increment as it were. We need to change our laws particularly for capital punishment in India. Our laws should change and the discipline ought to be so afflictions and it ought to be a model for individuals around him, about his unlawful demonstrations. There is a discipline more terrible than capital punishment. Make the wrongdoer nonstop conversation about the death penalty and the thorough life in jail is more awful than capital discipline. Every constantly the wrongdoer should feel for his offense.

The death penalty isn’t viable to lessen violations in Society.

Henceforth invalid theory demonstrated.

Indian criminal statute depends on the blend of two hypotheses. The constitution too gave powers to president and lead representative to suspend or exonerate capital punishment. In India capital discipline is granted for the most genuine and appalling offenses. The death penalty is given for murder, robbery with murder, waging battle against the public authority and abetting mutiny,etc.,. Capital punishment is given just when the court reaches a conclusion that life detainment is lacking, in light of circumstance of the case.

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AN OVERVIEW OF TRADEMARK INFRINGEMENT IN INDIA

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Brand name recognizes the proprietor of the item. Under any approved understanding of item, a brand name can be utilized, an illustration of brand names products names are, iPod and a major Macintosh. Organization logos like the Golden Arches at McDonald’s and McDonald’s “I’m Lovin’ it. Brand names as Mcdonald Apple’s, and Dolce and Gabbana.

The use of the brand name by unapproved implies or unlawful means by delivering it in exchanging is known as brand name robbery. Assuming there is an encroachment of brand name, the proprietor of the enrolled brand name can make a lawful move and for an unregistered brand name, the main choice passes off. Numerous nations like the United States, Canada and a lot more likewise, acknowledge the brand name strategies, so they additionally gave the right to the expert of item to make the move for the security of their brand name A typical idea of a brand name is that the proprietor of an enlisted brand name has a more legitimate appropriate for assurance than the proprietor of unregistered brand name.

The idea of use of the non-actual brand name the Supreme Court held on account of Hardie exchanging Ltd. v. Addison paint and synthetic substances Ltd. The Supreme Court gave a more extensive translation on the utilization of a brand name that it very well may be non-physical and that there were no grounds to confine the client to use on the items or to the offer of the products bearing the brand name.

ENCROACHMENT OF BRAND NAME

An enrolled brand name is encroached by an individual who not being an enlisted owner or an individual utilizing via allowed use over the span of exchange, an imprint which is indistinguishable with or misleading like the brand name corresponding to labor and products in regard of which the brand name is enrolled. After encroachment, the proprietor of the brand name can go for common judicial actions against a the enlisted party brand name. Essentially, Trademark encroachment implies the unapproved utilization of a brand name on in regards to items and advantages in a way that will create turmoil, troublesome, about the dealer or possibly benefits.

THE TRADEMARKS ACT

The Trademarks Act, 1999 (hereinafter alluded to as the Act) is the regulation that secures brand names in India. The Act sets out the guidelines managing enlistment, insurance and punishments against encroachment in regards to brand names. Brand names are given the situation with protected innovation across the globe. There are numerous associations, both worldwide and public, that undertaking to ensure scholarly properties like brand names.

In India, the association that arrangements with the security of brand names are the Indian Patent Office regulated by the Controller General of Patents, Designs and Trademarks. In straightforward words, brand name encroachment is the unapproved utilization of an imprint that is indistinguishable or misleading like an enlisted brand name. The term beguilingly comparable here implies that when a normal purchaser takes a gander at the imprint, it is probably going to confound him/her of the beginning of the labor and products.

TRADEMARK LAW IN INDIA

Before 1940 there was no law on brand names in India. Various issues of encroachment of enlisted and unregistered brand name emerged which were settled under Section 54 of the Specific Relief Act, 1877 and enrollment was mediated under the Indian Registration Act,1908. To conquer these hardships, the Indian Trademark law was implemented in 1940. After the requirement of the brand name law, interest for assurance of brand names expanded as there was significant development in exchange and business. The Trademark law was supplanted with the Trademark and Merchandise Act, 1958. It gives better assurance of brand name and forestalls abuse or deceitful utilization of imprints on stock. The Act gives enrollment of the brand name with the goal that the proprietor of the brand name might get a legitimate appropriate for its elite use. This past Act got supplanted with the Trademark Act, 1999 by the public authority of India by consenting it with TRIPS (Trade-related parts of protected innovation freedoms) commitment suggested by the World Trade Organization. The point of the Trademark Act is to give assurance to the clients of brand name and direct the conditions on the property and furthermore give lawful solutions for the execution of brand name freedoms.

The Trademark Act, 1999 gives the right to the police to catch in occurrences of infringement of the brand name. The Act gives a total definition for the term encroachment which is oftentimes utilized. In Trademark Act, it gives disciplines and punishments to the wrongdoers. It likewise builds the time term of enlistment and furthermore enrollment of a modern brand name.

DESGINATION OF TRADEMARK

Trademark is assigned by:

• ™ (™ is utilized for an unregistered trademark .it is utilized to advance or brand products)

• ( utilized for an unregistered help mark. it is utilized to advance or brand administrations).

• R (letter R is encircled by a circle and utilized for enrolled brand name).

USES OF TRADEMARK

Brand name recognizes the proprietor of the item. Under any approved understanding of item, a brand name can be utilized, an illustration of brand names products names are, iPod and a major macintosh. Organization logos like the Golden Arches at McDonald’s and McDonald’s “I’m lovin’ it. Brand names as mcdonald Apple’s, and Dolce and Gabbana.

The use of the brand name by unapproved implies or unlawful means by delivering it in exchanging is known as brand name robbery. Assuming there is an encroachment of brand name, the proprietor of the enrolled brand name can make a lawful move and for an unregistered brand name, the main choice passes off. Numerous nations like the United States, Canada and a lot more likewise, acknowledge the brand name strategies, so they additionally gave the right to the expert of item to make the move for the security of their brand name A typical idea of a brand name is that the proprietor of an enlisted brand name has a more legitimate appropriate for assurance than the proprietor of unregistered brand name.

The idea of use of the non-actual brand name the Supreme Court held on account of Hardie exchanging Ltd. v. Addison paint and synthetic substances Ltd. The Supreme Court gave a more extensive translation on the utilization of a brand name that it very well may be non-physical and that there were no grounds to confine the client to use on the items or to the offer of the products bearing the brand name.

ENCROACHMENT OF BRAND NAME

An enrolled brand name is encroached by an individual who not being an enlisted owner or an individual utilizing via allowed use over the span of exchange, an imprint which is indistinguishable with or misleading like the brand name corresponding to labor and products in regard of which the brand name is enrolled. After encroachment, the proprietor of the brand name can go for common judicial actions against a the enlisted party brand name. Essentially, Trademark encroachment implies the unapproved utilization of a brand name on in regards to items and advantages in a way that will create turmoil, troublesome, about the dealer or possibly benefits.

INFRINGEMENT OF TRADEMARK

The development of the web is additionally prompting an extension of improper brand name encroachment charges. Likely, an organization will attest brand name encroachment each time it sees one among its brand names on a web-based page of a Third party. For instance, a person who fosters a site online that talks about her mastery with Microsoft programming could utilize Microsoft’s brand names to counsel careful product without the concern of encroachment .Notwithstanding, she predominantly would never again be equipped to involve the imprints in this sort of means as to plan watchers of her web page to feel that she is partnered with Microsoft or that Microsoft is someway supporting her net page. The honor could easiest be broke down after perceiving how the imprints are truly utilized on the encroachment of brand name on the web.

CASE LAW ON INFRINGEMENT

Hearst organization Vs Dalal road verbal trade Ltd.

The court held that a brand name is encroached when a person throughout exchange utilizes an imprint which is same with or beguilingly like the brand name as far as the products in regard of which the brand name is enrolled. Utilization of the imprint by utilizing such man or lady should be in a way which is bound to be taken as getting utilized as a brand name.

ACCORDING TO TRADEMARK ACT, A MARK WILL BE REGARDED TO BE INFRINGED MARK IF:

1. It is found copy of whole enlisted mark with a couple of augmentations and adjustments,

2. The encroached mark is used throughout exchange,

3. The usage of the encroached mark is printed or normal portrayal of the imprint in promotion. Any oral use of the brand name isn’t encroachment.

4. The imprint used by the other person which nearly appears as though the quality of the enlisted proprietor as is likely going to misdirect or create turmoil and according to merchandise in regard of which it is enrolled.

PROTECTION AGAINST INFRINGEMENT OF TRADE MARK:

Under section 29 of the Trade mark Act, 1999, the use of an exchange mark by a person who not being enrolled proprietor of the exchange mark or an enlisted customer thereof which is unclear with, or misleadingly like an enrolled brand name adds up to the encroachment of brand name and the enlisted proprietor can take action or gain alleviation in regard of encroachment of brand name.

For a situation Supreme Court has held that in an activity for encroachment assuming the two imprints are undefined, by then the encroachment made out, in any case for the situation the Court needs to take a gander at the two denotes, the level of likeness by phonetic, visual or in the fundamental ides as introduced to the enlisted proprietor, whether or not the fundamental elements of the sign of the enrolled owner is viewed as utilized by other individual the Court might close the matter.

IN AN ACTIVITY FOR ENCROACHMENT OF TRADE MARK :

1. The outraged party should be the enlisted owner of a brand name

2. The respondent should use an imprint misleadingly comparative with the outraged party’s imprint.

3. The usage should be comparing to the products in respect of which the outraged party’s imprints is enrolled,

4. The usage by the respondent should not be unintentional anyway throughout the span of exchange.

LATEST UPDATES ON TRADEMARK LAW – 1ST AUGUST TO 8TH AUGUST ,2021 –

INDIAN TRADEMARK UPDATES

Samsung India faces temporary Injunction in trademark infringement suit- In a new choice by the City Civil Court at Bengaluru, innovation monster Samsung India, alongside its specialist organization Story Experiences Pvt. Ltd., have been briefly limited from utilizing the expression “Attendant”. The suit was initiated by Dipali Sikand, the organizer of Lesconcierges Services Pvt. Ltd. furthermore Club Concierge Services (India) Pvt. Ltd., who guaranteed that she was the first individual to present attendant services in Quite a while, and who had enlisted the brand name “Attendant” under classes 35, 39, 41, 43, and 45. It was stated by Sikand that she was giving attendant services to Samsung India, nonetheless, after the expiry of her underlying commitment with the tech monster, Story Experiences was named to give the previously mentioned administrations to Samsung India. Story Experiences along these lines started sharing flyers and handouts bearing the expression “Attendant” to planned customers, which prompted Sikand documenting this case, asserting encroachment of her brand name privileges. The City Civil Court at Bangalore in this way allowed a brief directive against Samsung India and Story Experiences Pvt. Ltd. until the finish of the suit

Before 1940 there was no law on brand names in India. Various issues of encroachment of enlisted and unregistered brand name emerged which were settled under Section 54 of the Specific Relief Act, 1877 and enrollment was mediated under the Indian Registration Act,1908. To conquer these hardships, the Indian Trademark law was implemented in 1940. After the requirement of the brand name law, interest for assurance of brand names expanded as there was significant development in exchange and business. The Trademark law was supplanted with the Trademark and Merchandise Act, 1958.

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ARTICLE 21 AND EUTHANASIA

Shubham Kashyap

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INTRODUCTION:

The word Euthanasia originated from Greek origins “eu” that denotes “well” or “good” in addition to “Thanatos” which denotes “death”, so in essence Euthanasia signifies good death.

It basically indicates a deliberate termination of someone’s life by someone else at the clear request of the individual who wants to die. In practice, it involves the action of killing an individual who is ill and not curable out of care and compassion for that individual’s agony. Some even call it ‘mercy killing’. Merriam Webster defines Euthanasia as the action of killing or letting a hopelessly ill individual die in a comparatively pain free method for merciful intentions. Black’s Law Dictionary has a similar definition stating it to be the action of killing or causing death of an individual suffering from an ailment that isn’t curable, specially an agonizing one for merciful aims. Right to die has continually been a contentious subject globally. Article 21 of the Indian constitution states that “no individual should be deprived of life or personal freedom except in accordance with legally prescribed procedures”. The term liberty is the appreciation and attainment of choice and the attributes that go with that choice and the word life denotes the aim to have the same in a dignified way. Both of these are intertwined. Liberty permits people the space to reflect and perform without constraint and life deprived of liberty would be a pointless existence. Courts have included different aspects to

Right to life like right to have a respectable existence, right to food, to get adequately educated, to have a clean environment, to get adequate shelter, privacy and numerous different rights to allow people to enjoy a better and a more fruitful life.

ANALYSIS OF

ARTICLE 21

This generous dealing of Article 21 by the courts could be owed to the judiciary’s appreciation of the principle that constitutional provisions should be interpreted not in a limited sense but in a broad and liberal way. Benches have continually held that when understanding the correct implication and substance of right to life, the court must try to expand the scope of the fundamental right and not weaken its content.In Maneka Gandhi v Union of India, 1978 AIR 597, justice Bhagwati, in an attempt to make Article 21more meaningful, stated that “Courts should try to expand the scope and range of fundamental rights instead of attenuating their implication and substance by means of juridical construction”. This is why numerous of rights have been included in Article 21. In Francis Coralie Mullin v The Administrator, the Supreme court made huge development when it contended that Article 21 doesn’t amount to simply ‘animal existence’ but to something more than just that. It comprises of living with human dignity. In Shantisar builders v Narayanan Khimalal Totame, the Supreme Court distinguished between the shelter that humans require and those that animals require. They stated that animals require just the minimum bodily security but humans require a habitation that permits them to grow in all facets be it mentally or physically. So, it isn’t just right to survival but living a complete quality life of dignity and value. The Supreme Court has claimed article 21 to be ‘heart of fundamental rights’ and has consequently allowed very broad boundaries with widest conceivable understandings to this article and correctly so. It has evolved into a basis for many essential rights and procedural protections. It can be contended that at the very least, every individual has a right to live with modicum amount of dignity and where the existing condition drops beneath that point, the individual should be permitted to terminate such agonizing existence. There is no legislation in India that provides for Euthanasia, so people relied on the constitution to provide relief with the question being, ‘whether Right of Life under article 21 accommodates a Right to die?’.

ANALYSIS OF INDIAN LEGAL JURISPRUDENCE ON EUTHANASIA

This issue first arose in the case of State of Maharashtra v Maruty Sripati Dubal. The court here held that Right to Life included Right to die and held Section 309 of IPC that made attempt to suicide a crime as unconstitutional. 29 The court reasoned those fundamental rights have both positive and negative facets. It also distinguished between suicide and euthanasia saying that the former includes the act done by the individual himself whereas the latter meant the act done by an intervening party. As opposed to this, in Chenna Jagdeshwar v Sate of AP, the court stated that right to die isn’t secured under article 21. In P. Rathinam v Union of India, the court followed Maruty Dubal case’s reasoning and stated that article 21 included the right not to lead a coerced life that is damaging, unfavorable and detested by someone. It also held attempt to suicide as not punishable by calling the provision against this as ‘ultra-viruses. This was a drastic approach and it could not last long. The court in Gian Kaur v State of Punjab while overruling this judgment, stated that Right to Life doesn’t incorporate the Right to die a death that isn’t natural and held suicide to be a criminal offence. They held s.309 of IPC that makes attempted suicide an offence to be constitutional. They reasoned that Article 21 is a natural right whereas the right to end one’s life by committing suicide would be unnatural.36 The court stated that dignity rights under the same only exist till the ‘natural’ termination of life. They distinguished Euthanasia from suicide and asserted that the former involves ending an individual’s life who is already fatally ill or in a PVS. They stated that in euthanasia, the course of dying has already begun and it merely accelerates this process of natural death and isn’t causing an unnatural termination. They therefore held that right to die a dignified death of a patient whose ‘life is ebbing out’ may come within the preview of right to a dignified life. So, in Gian Kaur, the court already acknowledged right to a dignified death specially for incurably ill patients, but they did not exactly rule on euthanasia be it active or passive. They just primarily focused on the legitimacy of anti-suicide laws. So, this issue was again brought up in Aruna Ramchandra Shanbaug v Union of India. Runa Shanbaug was a nurse who was a victim of sexual assault, after which she wasn’t in the condition to feel anything anymore. The ruthless incident rendered her visionless, deaf, paralyzed and in a vegetative condition for 42 years. A petition was brought before the Supreme Court for her euthanasia. The court passed a ground-breaking judgement legalizing passive euthanasia. The court held that in cases were the natural progression of death had already initiated or the patient was in a permanent vegetative state, then it wouldn’t be an offense to passively quicken demise by refusal of medical support. 43 Here the court instead of dealing with right to die, dealt with whether there is a compulsion to lengthen life when the sufferer was fatally ill. It laid down the following checks and safeguards that need to be adhered to so that this aid isn’t abused, specially forbidding third party from being involved in the decision-making.

1-The decision to not continue with aids that lengthen the patient’s life must be undertaken by their lawful guardians, their partner, someone who is close to them,

2- The approval of the high court is mandatory as relatives might give approval to get inheritance benefits.

3- Two judges of the high court will take the call after taking assistance from a panel of three medical experts. The English case of Airedale has been one of the major cases that facilitated the benches to consider passive euthanasia in Indian framework. 48The aforementioned legal delivery had also been undertaken by the court in Airedale case cogitating the High Court to be ‘parens patriae’ and personally examining every case for securing the paramount interest of the individual given euthanasia like a rational and reliable parent.

In Common Cause v Union of India, the Constitutional Court performed an arduous undertaking of pronouncing Right to die with dignity as a fundamental right and a vital component of right to live a life of dignity as enshrined in Article 21. It arranged extensive system for protecting the dignity of fatally ill individuals and those in PVS with no prospect of recovery and in this course, it 1- legalized advance medical directives (AMD) and health attorneys and 2- put forth rules to give force to passive euthanasia. This is now the current law with respect to euthanasia till a legislature is made on the same. This court also scrutinized some discrepancies in the Aruna Shanbaug case. The constitutional court in Common Cause increased the extent of Euthanasia allowed in Aruna case by attaching the concept of living will, where individuals can leave written guidelines on the type of health care they could be administered with, in the occasion of them being in a unresponsive and incurably ill state .It is important to remember that only passive euthanasia has been allowed yet that involves withholding life-lengthening procedures voluntarily, when the patient requests this or when he leaves a living will behind that provides for this or, involuntarily when the patient isn’t in a conscious state and this decision is taken by his family, doctors, close affiliations with the approval of the high court. Active euthanasia is different as it involves positive action of using lethal drugs to cause deliberate demise of the individual through direct interference and this isn’t permitted. The Jurisprudence across the globe has grown on passive euthanasia and it has managed to get moral and legitimate approval more or less. This can’t be said for active euthanasia as there still exists some hesitation and doubt about it.

CONSTITUTIONAL ASPECTS OF DIGNITY AND PRIVACY THAT PLAY A ROLE HERE

According to prof Upendra Baxi, dignity means respect for a person built on the value of liberty and power to construct choices and a decent social system would be where dignity is respected by allowing settings to exercise uncontrolled and informed choices. Even though the term ‘dignity’ isn’t defined anywhere in the constitution or statutes, by analysing the views taken by courts, we can see the how intrinsic it is for Article 21. To deny an individual of his dignity at the conclusion of his life would deny him of meaningful existence. A subsistence that holds meaning would include individual’s right of self-determination and independence to choose their healthcare procedure. Respect for a person, particularly their right to decide how they must live their life amounts to self-autonomy or right of self-governance. It is the right against non-intervention by people that offers a competent individual that is in his majority, the right to decide things that concern his being and body, exclusive of other’s control or meddling. Individual’s right of self-rule and autonomy include their choice to whether and to whatever degree they are prepared to submit themselves to health treatments, deciding between alternate procedures or in that regard, deciding for no procedure at all, which according to their comprehension is in consonance with their personal desires and principles. 61 Nevertheless, a critical issue is yet to be addressed of whether right to die as a part of article 21 is absolute or it would be controlled by reasonable constraints. Considering this right involves the choice vis-à-vis terminating one’s life, the circumstances that accompany the meaning of ‘dignity’ need to be lucidly articulated. Without explicit reference of reasonable constraints influencing this right, the noble intent of the constitutional court advancing this judgement may prove ineffective.

In KS Puttaswammy v Union of India, the Constitutional Court that included nine justices held privacy to be a fundamental segment of right to life that also recognizes a person’s right to refuse health treatments that prolong lifespan. Here, Justice Chelameshwar stated that “force feeding of particular individuals by the Government raises alarms for privacy. A person’s right to deny healthcare that prolongs his existence or ends the same is a liberty that comes within the preview of privacy”. Article 21 guarantees privacy rights and in cases where individuals are in PVS or are bed ridden, unconscious to an extent where they are unable to eat own their own, switch clothes or even utilize the lavatory, whether or not their privacy rights are being met is something to reflect on. These are things that no one would normally like to rely on others for.

EUTHANASIA IN THE NETHERLANDS

Netherlands was the first European state that allowed euthanasia by introducing the statute ‘termination of life on request and assisted suicide act” in 2002. 69 This legislation permitted euthanasia in extremely rare and extraordinary circumstances.70 There, killing someone on their request or with their permission is illegal but this statue makes an exemption for doctors who perform euthanasia provided they meet the following factors:

1-If there isn’t any possibility for the patient’s condition to improve and they are in insufferable agony, 2-The patient themselves, voluntarily opt for this without any encouragement from others and this request should be persistent over a period,

3- The patient makes an informed decision with comprehensive information of his alternatives,

4-This issue must be discussed with other free doctors for confirming everything,

5-euthenesia must take place with proper process by competent doctors, and

6- patient must be minimum twelve years of age.

CONCLUSION

Low educational and legal knowledge being the reality of many people in India, there could be a chance of misuse of living wills by greed-stricken heirs and this should be appropriately attended by the parliament for the paramount usage of the novel right added in the binder of fundamental rights. Lack of sufficient and affordable healthcare and monetary limitations on middle class families may force them to opt for passive euthanasia or make living wills hastily out of compulsion. Therefore, mere allowing passive euthanasia by the benches isn’t enough till the parliament appropriately aids the matter by giving the required attention to health facilities and insurance, specially for economically backwards individuals. Appreciating the right of dying with dignity for terminal patients and persons in a PVS is only part of the picture, and the issue of how this right would be construed with respect to individuals wanting to die due to other serious reasons like agedness, indigence, dearth of prospects etc. to die with respect still remains. The apex court has only recognized this right to dignified death in terms of right to withdraw or deny life prolonging treatments for the aforementioned categories, so how this right should be construed with respect to patients who have terminal illnesses that hamper their life adversely but haven’t made them dependent on some life supporting machine is something to deliberate on. For instance, individuals permanently paralyzed from neck down, individuals with severe case of dementia that leaves them in a disoriented state, not recognizing themselves or their loved ones etc. These individuals aren’t dependent on life prolonging systems that they can withdraw but nevertheless they have to permanently depend on others for basic needs and their dignity, privacy, autonomy and quality of life can be said to be obstructed by their degenerated circumstances. To cause death in these situations, a positive action would be needed. This may have the capacity to unlock floodgates for Mandamus Writs before constitutional benches. In my opinion, active euthanasia, although very restrictively and only in extraordinary and rare instances, should also be included in right to dignified death under art 21. For this, heavy safeguards and riders are needed so that this right isn’t abused. This is also keeping in mind the broad frame the courts have given to ‘life’ under art21, to signify more than ‘animal survival’, to include a life of dignity, quality, good physical and psychological wellbeing. India’s legal situation shouldn’t be reviewed in isolation. We have drawn our constitution from the charters of diverse states and benches have frequently referred to several international decisions. Netherland’s statue with respect to Euthanasia should be examined and appreciated in Indian context and used to broaden euthanasia framework in India. Death is as essential is life in certain situations. Death shouldn’t be seen as negative or disappointing when the individual is going through unbearable agony from an ailment that isn’t curable for an alarmingly long time. Humane and proficient dealing for the dying is necessary.

Low educational and legal knowledge being the reality of many people in India, there could be a chance of misuse of living wills by greed-stricken heirs and this should be appropriately attended by Parliament for the paramount usage of the novel right added in the binder of fundamental rights. Lack of sufficient and affordable healthcare and monetary limitations on middle class families may force them to opt for passive euthanasia or make living wills hastily out of compulsion.

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Section 482 CrPC plea maintainable to quash proceedings which are Ex Facie bad for want of sanction: Allahabad HC

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While dispelling all misgivings and question marks raise over whether Section 482 CrPC plea is maintainable or not to quash proceedings which are ex facie bad for want of sanction, the Allahabad High Court has in a learned, laudable, landmark and latest judgment titled Mahendra Pal Singh Lekhpal And Another v. State of U.P. and Another in Application U/S 482 No. – 15266 of 2007 delivered as recently as on January 10, 2022 observed that an application under Section 482 CrPC is maintainable to quash the proceedings, which are ex facie bad for want of sanction as required under Section 197 of CrPC (Prosecution of Judges and public servants). In holding so, the Bench of Justice Chandra Kumar Rai has set aside a summoning order passed by the Judicial Magistrate Farrukhabad against a Lekhpal (applicant number 1) and a Kanoongo (applicant number 2) in the Consolidation department (both public servants) without obtaining necessary sanction as provided under Section 197 of CrPC. Very rightly so!

To start with, this noteworthy judgment authored by a single Judge Bench of Justice Chandra Kumar Rai sets the ball rolling by first and foremost observing in para 1 that, “The instant application under Section 482 Cr.P.C. has been filed to quash the summoning order dated 14.03.for demarcation.2007 passed by Judicial Magistrate IIIrd, Room No.12 Farrukhabad in complaint case No.28 of 2006 (Siya Ram Vs. Mahendra Pal and others).”

While elaborating on the facts of the case, the Bench then envisages in para 2 that, “The brief facts of the case are that applicant No.1 is a Lekhpal in the Consolidation department and applicant No.2 is a Kanoongo in the Consolidation department and both are the public servants. During consolidation proceedings, a joint plot was allotted to opposite party No.2 and one Ram Singh. Opposite party No.2 filed an application on 28.08.2006 before Settlement Officer of Consolidation for making measurement of plot No. 372. The Settlement of Consolidation Officer by order dated 29.08.2006 directed the Consolidation Officer to make measurement in accordance with law.”

While continuing in the same vein, the Bench then enunciates in para 3 that, “In pursuance of the order of Settlement Officer of Consolidation dated 29.08.2006, necessary reports were submitted by Consolidation authorities and applicant Nos. 1 and 2 on 15.11.2006 conducted measurement of disputed plots with the help of local police and submitted their report before the Assistant Consolidation Officer. The report dated 15.11.2006 has been annexed as Annexure No.2 to the affidavit accompanying with the present application, in which it is mentioned that measurement has been taken place taking due care of the crop standing in the disputed plot. Opposite party No.2 filed a complaint on 27.11.2006 before the Judicial Magistrate, Farrukhabad with the allegation that applicant Nos.1 and 2 have illegally made measurements of the plot, in which crops were standing and there was an order dated 15.11.2006 to stop the measurement,2 the2 copy of the complaint has been annexed as Annexure No.3 and order dated 15.11.2006 has been annexed as Annexure No.4 to the affidavit. The Judicial Magistrate IIIrd, Room No.12, Farrukhabad by order dated 14.03.2007 summoned the applicant under Section 427 IPC, without considering the facts that applicants are public servant and they were discharging their official duties.”

As we see, the Bench then points out in para 4 that, “This case was listed on 10th July, 2007 and following order was passed on that date:

“Heard the learned counsel for the applicants and the learned A.G.A.

It is contended by the learned counsel for the applicants are the lekhpal and Kanoono respectively. They have made measurement of the land on the basis of the order passed by the C.O. concerned. They have discharged their duties and the allegations against them are false and frivolous.

Issue notice to O.P. No.2 returnable within four weeks.

In view of the facts and circumstances, further proceedings of complaint case No.28 of 2006 pending in the Court of Judicial Magistrate, III Room No.12 Farrukhabad, shall remain stayed till the next date of listing. List after four weeks”

Be it noted, the Bench then makes no bones about the irrefutable fact which it states in para 11 that, “There is no dispute about the fact that applicants are public servants and further they were discharging their official duties, as such the arguments advanced by the learned counsel for the applicants that private complaint against the public servant for want of sanction would vitiate criminal proceeding has got substance.”

Needless to say, the Bench then stipulates in para 13 that, “The object of sanction for prosecution whether under Section 197 of the code of criminal procedure is to protect a public servant discharging official duties and functions from harassment by initiation of frivolous criminal proceeding.”

While citing the relevant case law, the Bench then mentions in para 14 that, “The Hon’ble Supreme court in a case of Matajog Dubey vs. H. C. Bhari AIR 1956 SC 44 has held:

“…..Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard…………There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by thhe public servant in the discharge of his official duties. No one can take such proceedings without such sanction…..”.”

While citing yet another relevant case law, the Bench then states in para 15 that, “In Pukhraj vs. State of Rajasthan and another (1973 2 SCC 701), the Hon’ble Supreme Court has held:

“2…..While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person, who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act cone or purporting to be done in the execution of duty The section cannot be confined to only such acts as are one by a public servant directly in pursuance of his public officer, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction.

Read conclusion on www.thedaily guardian.com

What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty.

It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the ‘capacity in which the act is performed’, ‘cloak of offence’ and ‘professed exercise of the office’ may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty…..”.”

It is worth noting that the Bench then candidly observes in para 16 that, “Every offence committed by different officer does not attract section 197 of the Code of Criminal Procedure. The protection given under Section 197 of the Criminal Procedure Code has its’ limitation. The protection is available only when alleged act done by the public servant is reasonably connected with the discharge of his official duty, an offence committed outside the scope of the duty of the public servant would certainly not require sanction. If in doing official duty public officer if committed any mistake or has been summoned in excess of duty even then the sanction of the Government as provided under Section 197 of the Criminal Procedure Code is mandatory.”

It is quite noteworthy that the Bench then elucidates in para 18 noting that, “On the point of stage at which trial court has to examine sanction question Hon’ble Supreme Court in D.T. Virupakshappa Vs. C. Subash, AIR 2015 12 SCC 231 has held that High court had erred in not setting aside an order of trial court taking cognizance of a complaint in exercise of power under Section 482 Cr.P.C.”

More significantly, the Bench then hastens to add in para 19 holding that, “The Hon’ble Supreme Court in the case of D. Devaraja vs. Owais Sabeer Hussain reported in [2020 (113) ACC and 904] has held that if the sanction as provided under Section 197 of Criminal Procedure Code has not been taken, the order taking cognizance by the Magistrate will be illegal and the High Court should exercise the power under Section 482 Cr.P.C. to quash the proceeding which was bad for want of sanction.”

Most significantly, the Bench then minces no words to state succinctly in para 20 that, “On the basis of law laid down by Hon’ble Supreme Court as mentioned above, it is well settled that an application under Section 482 Cr.P.C. is maintainable to quash the proceedings, which are ex facie bad for want of sanction. If, on the face of complaint, the act alleged appears to have a reasonable relationship with official duty power under Section 482 Cr.P.C. would have to be exercised to quash the proceedings to prevent abuse of process of Court.”

Finally and far most significantly, the Bench then concludes by holding elegantly, eloquently and effectively in para 21 that, “In view of the facts and circumstances stated above, I am of the view that learned Magistrate has illegally taken cognizance of the offence summoning the applicants under section 427 IPC, which is ex facie bad for want of sanction. The application under Section 482 Cr.P.C. is allowed. The summoning order dated 14.03.2007 passed by the Judicial Magistrate IIIrd Room No.12 Farrukhabad in complaint case No.28 of 2006 is set aside and complaint is also quashed for want of sanction in exercise of power under Section 482 Cr.P.C. No order as to costs.”

In conclusion, this notable judgment by a single Judge Bench of Justice Chandra Kumar Rai of Allahabad High Court leaves not even an iota of doubt to make it crystal clear that Section 482 plea is maintainable to quash proceedings which are ex facie bad for want of sanction. All the courts must abide and adhere by what the Allahabad High Court has held so explicitly in this leading case and act accordingly as directed in this leading case! No denying or disputing it!

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Impact of arbitral disputes in the insolvency regime in India

Eshna Kumar

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In India, insolvency has become a preferred mode for creditors to enforce theirrights under a contract and/or a statute. The Insolvency and Bankruptcy Code, 2016 recognises these rights primarily for two types of creditors, financial and operational.

On admission of an application filed by any such creditor, the corporate insolvency resolution process commences. An order of initiation of the process declares the corporate to be insolvent against the world at large. Thus, such a judgment passed under the insolvency jurisdiction is a judgment in rem.

Under the Code, rights for a financial creditor become enforceable only on the existence of a default (Section 7 of the Code). However, for an operational creditor, in addition to the existence of default (Section 8 of the Code read with Section 9 of

the Code), non-existence of pre-existing dispute (Section 9 of the Code) is also to

be demonstrated.

Pendency of arbitral proceedings have a direct impact on the satisfaction of these tests. This article attempts to surface the extent of impact of such arbitration proceedings/disputes on the insolvency jurisdiction.

The impact of arbitral proceedings concerning determination of dispute under the

Code is quite clear. Dispute is defined under Section 5(6) of the Code to include a suit or arbitration proceeding relating to (a) existence of the amount of debt; (b) quality of goods or services; (c) breach of a representation or warranty. The Supreme Court in the case of Mobilox Innovation v. Kirusa Software, (2018) 1 SCC 353 while interpreting this provision has also recognised that pendency of arbitral proceedings with regar to the aforementioned or any other related ground amount to dispute under the Code. (See paragraph 54)

Default is non-payment of a whole or part of debt which has become due and payable. With regard to the impact of arbitral proceedings concerning ascertainment of default, the issue to be considered is whether determination of default (a) right in rem i.e. rights that bind the world large (b) right in personam i.e. inter-se rights (c) subordinate rights i.e. in personam rights subordinate to rights in rem. This is of relevance as rights in personam and subordinate rights are held to be arbitrable disputes as against pure rights in rem. These heads of rights were recognized by the Supreme Court in the case of Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd, (2011) 5 SCC 532 in relation to arbitrability of intellectual property disputes (See paragraphs 37, 38)

2 The Supreme Court in the case of Kotak Venture v Indus Biotech Private Limited, [Arb P (Civil) 48 of 2019 with Civil Appeal No. 1070 of 2021 decided on 26/03/2021] has held that mere filing of the petition and its pendency before admission, cannot be construed a proceeding in rem and the same can be considered as a proceeding in rem only once the Adjudicating Authority recorded a finding of default and admitted a petition under the Code. Thus, one can safely conclude that determination of default is not a right in rem as it relates to the creditor(s) who have approached theAdjudicating Authority.

As a result, existence of dispute and ascertainment of default under the Code is an arbitral dispute and in my view would be in the nature of a subordinate right.

The law during the earlier days seems to have been that pendency of arbitral proceedings does not impact the initiation of corporate insolvency resolution process in a proceeding initiated by a financial creditor. In this regard, reference is made to the judgment of Adjudicating Authority, Delhi in the case of Reliance

Commercial Finance Limited v. Ved Cellulose Limited, (IB)156(PB)/2017; State Bank of India v. Sukam Power Limited, (IB)540(PB)/2017; (IB)1049/KB/2018; Shalby v. Dr. Pranav Shah (IA 285/17 in CP(IB) 123 of 2017).

However, then came the case of Indus Biotech Private Limited v Kotak India Venture Fund-I [IA No.3597/2019 in CP (IB) No.3077/2019] passed by Adjudicating

Authority, Mumbai. The application under Section 7 of the Code filed by Kotak

India Venture Fund-I was basis non-payment of Rs.367,08,56,503.00p by Indus Biotech Private Limited on account of invocation of right of redemption by Kotak Group under the share subscription agreement. Due to non-compliances by Indus

Biotech, it proposed to convert the Optionally Convertible Redeemable Preference

Shares invested by the Kotak Group into equity shares. The dispute centred around (a) the valuation of the Kotak’s Optionally Convertible Redeemable Preference Shares; (b) the right of the Kotak to redeem such Optionally Convertible

Redeemable Preference Shares when it had participated in the process to convert its

Optionally Convertible Redeemable Preference Shares into equity shares of the Indus Biotech; and (c) fixing of the Qualified Initial Public Offering date. Indus in this case preferred an application under Section 8 of the Arbitration and Conciliation

Act to refer the disputes to arbitration. The Adjudicating Authority, Mumbai while observing that the disputes raised were important determinates for ascertaining existence of default, it held that it was not satisfied that a default had occurred. Additionally, the Adjudicating Authority held 3 that “… … The invocation of arbitration in a case like this seems to be justified.” (See paragraph 5.14) The Adjudicating Authority, Mumbai while allowing the application under Section 8 of the Arbitration and Conciliation Act and dismissing the application under Section 7 of the Code also held that the Code mandates the Adjudicating Authority to ascertain and record satisfaction as to the occurrence of default before admitting the application. (See paragraphs 5.12, 5.13, 5.15, 5.16)

The judgment of Adjudicating Authority, Mumbai was challenged before the Honourable Supreme Court. Connected with it was an arbitration petition seeking appointment of an arbitrator to adjudicate upon the disputes that have arisen between Indus Biotech and the Kotak Group.

The Honourable Supreme Court upheld the decision of Adjudicating Authority,

Mumbai. With regard to the effect of filing of an application for reference of disputes under Section 8 of the Arbitration and Conciliation Act in a proceeding of insolvency initiated by a financial creditor under Section 7 of the Code, the Honourable Supreme Court observed that an application under Section 8 of the Arbitration and Conciliation Act would be maintainable in a situation where the petition under Section 7 of the Code is yet to be admitted. However, in a case where the application under Section 7 has already been admitted an application to refer disputes to arbitration would not be maintainable. Additionally, it was observed that in such a case, the Adjudicating Authority would be duty bound to first decide the application under Section 7 of the Code by recording a satisfaction with regard to there being default or not, even if the application under Section 8 of Act, 1996 is kept along for consideration. (See paragraph 27)

Thus, in the author’s view the Indus Biotech Case recognised the pendency of arbitral disputes impacting the existence of default in an application under Section 7 of the Code. It also recognised the maintainability of an application under Section 8 of the

Arbitration and Conciliation Act where an application under Section 7 of the Code is pending admission.

To conclude, (i) arbitral disputes impact applications under Section 7 and Section 9 of the Code; (ii) determination of default under the Code and existence of dispute under the Code are not in rem rights and are subordinate rights (iii) determinates of existence of default under the Code are arbitral disputes (iv) application under 4 Section 8 of the Arbitration and Conciliation Act, 1996 are maintainable prior to admission of an application under Section 7 of the Code.Ms. Eshna Kumar is an Advocate with commercial litigation before the Supreme Court of India, High Court of Delhi, National Company Law Tribunal, National Company Law Appellate Tribunal and other tribunals primarily relating to commercial matters. She regularly appears before various arbitral tribunals.

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