It is a basic principle of justice that a respondent to an application to court should have the opportunity to be heard by the court before the court makes any order. What may be less well understood is that there are equally situations where it is appropriate that the respondent is not notified that the application is taking place, so that the court only hears from the applicant. This is permitted in circumstances where giving the respondent notice would be likely to cause injustice to the applicant, or where there is exceptional urgency, or in certain situations where it is permitted by a rule or practice direction. Such an application is referred to as having been heard ‘without notice’, or in more traditional legal parlance ‘ex parte’.
The classic example of a without notice application is the Mareva injunction, now known as the Worldwide Freezing Order (“WFO”), where the respondent’s assets are frozen in anticipation that he is likely to dissipate them and render any judgment obtained against him ineffectual. If the respondent had advance notice of the application, it would give him the opportunity to dispose of assets before an injunction could be obtained, thereby defeating its purpose.
Another situation where ex parte orders are commonly sought is where an applicant seeks orders concerning the original service of proceedings outside the jurisdiction against a defendant. Under English law a proceeding against a defendant who lives in another country, and therefore is outside the court’s jurisdiction, requires permission of the court and such applications to the court are made on an ex parte basis.
While it might superficially seem advantageous to an applicant to seek an order without notice to the respondent, there are serious pitfalls. In the absence of opposition, the applicant has a positive duty of full and frank disclosure of all material matters to the judge hearing the ex parte application. The duty which is called Duty of Candour to the court is strict, and failure to comply can lead to the order obtained by the applicant being set aside, as well as costs sanctions and in case of serious breach also professional consequences for the lawyer involved for the applicant. Importantly, these consequences are punitive, and so may apply even where the applicant has a strong case. This requires parties to be especially wary of what they say or not say to the court either by way of oral submissions, or in any affidavit, witness statement or skeleton argument made in support of a without notice application.
It may seem surprising to the uninitiated that the duty of full and frank disclosure applies not only to applications for WFOs but also, with equal force, to ex parte applications for permission to serve proceedings out of the jurisdiction, or alternative service, and all other ex parte applications.
What must be considered when seeking to comply with the duty of full and frank disclosure? The legal principles can be summarized as follows:
• The applicant must draw to the attention of the court all matters that would be relevant for the judge to know.
• The question of materiality is a matter for the court, not the subjective judgment of the applicant or the legal advisers.
• Adverse facts and matters, such as potential arguments or defenses that would be available to the respondent, must also be disclosed.
• The presentation of relevant matters must be fair. Burying a material fact in an exhibit, or only partially explaining a disclosed matter will not be sufficient.
• The applicant must not only disclose what he knows, but also what he ought to have known had he made reasonable and proper enquiries.
• The duty also applies to the applicant’s legal advisers as well as to the litigant.
• The court has a discretion to re-make or continue an order notwithstanding material non-disclosure, though the discretion is exercised sparingly.
In Punjab National Bank v Srinivasan  EWHC 3495 (Ch), Sir Geoffrey Vos, Chancellor of the High Court, affirmed Chief Master Marsh’s earlier decision that orders granting permission to the London subsidiary of Punjab National Bank (“PNB”) to serve claims against defendants in the US and India were to be set aside and not re-granted on a number of grounds, including material non-disclosure on the part of the Bank.
The facts were as follows. PNB had made a number of loans, said to amount to some USD 45 million, which had not been repaid. The contractual documents variously provided for exclusive jurisdiction in England, or nonexclusive jurisdiction in India or the US. The Bank issued its claim in England and sought permission to serve the proceedings out of the jurisdiction. The respondents challenged the orders granted on various grounds, including material non-disclosure.
At first instance, PNB was found to have failed to disclose proceedings it had initiated against certain of the defendants in the US and in the Chennai Debt Recovery Tribunal (“DRT”). While PNB had made passing reference to the proceedings in the US, it had concealed their significance. PNB had a duty to inform the court about the full facts of the case in the US, including how it interrelated with the English claim. The DRT proceedings had not been mentioned at all, and it was no justification that PNB’s lawyers were not aware of those proceedings. PNB should have informed its English lawyers of the existence of the DRT proceedings.
A further material non-disclosure related to evidence of PNB’s solicitor that the Defendants were likely to evade service, in support an application for alternative service by email. The court found this evidence to be misleading and unsupported by the facts. The court had not been informed that the US claim had been served without apparent difficulty under the Hague Convention, and the fact that a claim was based in fraud did not necessarily mean that the Defendant’s would evade service.
On appeal, Sir Geoffrey Vos considered the principles under which the court could re-grant an order which had been set aside for material non-disclosure. Relying on previous dicta in Libyan Investment Authority v. JP Morgan  EWHC 1452 (Comm) and OJSC ANK Yugraneft v Sibir Energy plc  EWHC 2614 (Ch), the Chancellor observed the general rule that where there have been breaches of the duty of full and frank disclosure the court should normally discharge the order and not re-grant it. But the court retained jurisdiction, to be exercised sparingly, to continue or re-grant the order. The court would take account of all relevant circumstances, and in particular:
— The need to protect the administration of justice and public interest in requiring full and frank disclosure;
— The degree and extent of culpability with regard to the non-disclosure;
— The importance and significance of the matters not disclosed to the outcome of the application;
— The merits of the applicant’s case, but this should not be allowed to undermine the policy objective of the principle;
— The principle should not be carried to extreme lengths or become an instrument of injustice; and
— Proportionality between the punishment and the offence.
The Chancellor, taking into account the above factors, decided that the Chief Master had been correct to discharge the orders made and not to re-grant them. He placed weight on the weakness of the fraud claims and the fact that the Bank would not be left entirely without remedy. The principles that apply to material non-disclosure in the context of injunctive relief are similar, as set out in Fundo Soberano de Angola v Jose Filomeno dos Santos  EWHC 2199 (Comm) where Popplewell J. stated:
“Ultimately the question is one of the interests of justice. The court will take into account the importance of the matters which were not disclosed, the nature and degree of culpability, and the adverse consequences to a claimant of losing protection against a risk of dissipation of assets. It is not sufficient to justify regranting the Order that it would be justified had the material matters been disclosed and a fair presentation made, because one important factor in weighing the interests of justice is the penal element of the sanction, which it is in the public interest to apply in Order to promote the efficacy of the rule by encouraging others to comply.”
The duty of full and frank disclosure is not one to be taken lightly. For those accustomed to adversarial litigation it may seem counterintuitive or even repellent to put forward arguments and material that weigh against the orders sought, particularly in highly contentious matters where the opponents are accused of impropriety or fraud. But given the potentially devastating consequences of a later finding of material non-disclosure, a cautious approach should be adopted.
Finally, consideration should also be given to making the intended application on an inter partes or with notice basis. In another recent matter in which my firm acted, Sheikh Mohamed Bin Issa Al Jaber v Bosheh  EWHC 2142 (Ch), the court found that the application for a WFO should have not have been made ex parte, and reduced the applicant’s costs accordingly. Even if it is appropriate to make the application ex parte, the advantage in not being subject to the onerous duty of full and frank disclosure might in some circumstances encourage one to apply on notice to the respondent.
Sarosh Zaiwalla is Senior Partner and founder of Zaiwalla & Co, a London-based specialist international arbitration and litigation law firm.
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Why contract law is essential for business transactions
A contract with extensive operational content is used to manage all parties’ distribution operations, whereas a contract with significant technical material is used to monitor the cluster’s output activities. The parties’ relationships have a clear impact on the contract’s execution. The transactional relationship leads to a specific deal use, but the relative relationship leads to a non-specific deal use.
Since the human race began and human society has developed, there have been many laws and policies practiced through out the decades. In the past when the barter system was in practice and people used to exchange goods amongst them, people were unable to meet their needs properly so for that the concept of money and company into light and was accepted by everyone. In the contemporary era, the economy is growing fastly and vastly and the globe has accelerated the corporate transactions and business with the help of a legal instrument that is known as “Contract”. The Law of Contract is one of the oldest mercantile laws being used in India since 1872. The term “Contract” is referred to as the agreement between two parties that are contractual in nature that describes the responsibilities of the parties where the offeror makes an offer to enter into a contract with the offeree. If the offeror agrees to do something or to refrain from doing something and accepts the offer, then contact is made.
The Law of Contract is not only an important thing for business rather it is an essential law to carry on trade, business or commerce smoothly as it definiteness in the business transactions that affects the entire society. India is considered as a developing country with a mixed economy and in the 21st century, several new businesses and startups are emerging across the country. Make in India, Startup India, Execute India, and few other initiatives were started by the government to make India grow in the global market. These got boosted up when the Pandemic hit the nation and everything went virtual. People started working from and this was the time when many new startups and businesses came and grew up.
Every business or startup goes through a business transaction. A business transaction is basically an event or an occasion that involves an interchange of goods or money or any kind of services between two or more parties. It is very important as it provides a brief view of the interactions taking place between the company or organizations for accomplishing the business objective.
Any contract is enforced by the law as it ensures that if any party fails to do whatever he/she has agreed to, then in that case the other party may approach the Court of Law. to demand the damages for the injuries done by the violation of the law. However, any contract can only be taken forward and executed if it satisfies these conditions – agreement, free consent, competence, consideration, legal objective, and the contract not expressly declared null and void. Basically, a contract is an agreement that is written and agreed upon by all the parties involved in it. It not only provides an oppurtunity and smoothness for the execution of all the tasks and the fulfillment of the target as written in the agreement. It acts as a path of positive attachment with the clients.
Contract management, in this context, is a strategy for managing legally drafted contracts with clients or anybody else. A contract guarantee is a common commercial practise that clarifies requirements and aids in the delivery of the intended outcomes as quickly as feasible. It is important to obtain a legally binding contract from a lawyer.
Contracts become particularly significant due to the following factors:
1. PREVENTION OF MISCOMMUNICATION AND MISUNDERSTANDING:
This is one of the most common issues encountered in any organization for various reasons. Contract preparation is a mandate to deter such situations. Both the parties have to read and follow all the negotiated laws as it has a huge effect on the disputes between the parties and thus can make a huge effect on the entire firm.
2. COMPREHENSIVE PROOF OF INFORMATION:
A contract’s principal purpose is to memorialise all of the details agreed upon by both parties. The contract provides a thorough understanding of the services provided by a third party as well as the financial obligations that must be met by the third party. This data will be used as legal facts and is extremely important to the transaction.
3. ENSURES CONFIDENTIALITY:
A Non-Disclosure Agreement (NDA) that covers all sensitive material is required to ensure confidentiality. The parties concerned are not entitled to the disclosure of the business or to a monetary exchange with the third party, according to this agreement. They will be held accountable for breach of contract if they reveal the information.
4. OFFERS PROTECTION:
The duration of the contract and the collection of responsibilities are specifically stated in the legal agreement, which plays an essential role in ensuring security between the parties. If one of the parties files a lawsuit against the other, the contract may be used as evidence.
5. WORKS AS A CORPORATE RECORD:
The contract is the primary and most important document establishing mutual consent to the procedures set forth in the agreement. According to the contract, it can be used for comparative reasons. The length of the contract is usually noted in the contract, which provides extra direction on termination terms. In the worst-case situation, the contract may be cancelled if the other party fails to follow the contract’s regulations or ignores the conditions.
Before, commercial transactions were far too simple. Two individuals used to agree to make a transaction and both parties kept their word, but today’s professionals are aware of the history of deal-breaking and litigation that have occurred in their industry. Contracts are regarded the most significant item in any business since they explain both parties’ expectations and protect both parties if those expectations aren’t met adequately and a lockin price is paid for the services. Because it is implemented in our daily lives, contract law is extremely important. Life will not run as smoothly as it should without the contract. Any agreement in today’s period involved a contract, whether it was for buying raw materials, renting property, collecting money, or employment. Much of what the government does, in their opinion, derives from the action of the appropriate Parliament, and the services they give are increasingly privatised and delivered in accordance with the contract.
Various studies have been conducted in the past to demonstrate how the contract is utilised to replace the parties’ loss of trust. The problem is that protecting against probable future occurrences is difficult, if not impossible. The participants’ primary goal is to protect oneself in the event of a possible relationship involving complex and unusual interactions. Contract negotiations are reviewed in five stages: bid, discussion, adaptation, preparation, and the final negotiating process. The end outcome will most likely be a one-sided deal. There may also be a link between the length of the conversations and the proximity of the meetings. Long-term interactions, according to the model, are likely to result in more notable closeness as the parties learn more about one another. On the other hand, if the parties already have a good connection, the conversations may be brief.
The aforementioned circumstances make contracts inevitable for any firm that wants to keep its sensitive information safe and secure from the bad guys. It also protects employees when they fail to follow the terms of the contract by deceiving them with promises. Furthermore, we tend to believe that the negotiation approach, the contract, and its application are at the heart of the study. As a result, the contract itself contains a critical outcome on the contract’s employment. During a right-of-use arrangement, an agreement made by the granting party is used to govern individuals at intervals the opposing party’s company. This horrible contract is used in a variety of ways. A typical contract is discovered to have a non-differentiated usage. A contract that is not as thorough as a long term is perceived in a very different light.
A contract with extensive operational content is used to manage all parties’ distribution operations, whereas a contract with significant technical material is used to monitor the cluster’s output activities. The parties’ relationships have a clear impact on the contract’s execution. The transactional relationship leads to a specific deal use, but the relative relationship leads to a non-specific deal use. However, drafting a contract that takes these issues into account might be a difficult and time-consuming process. It’s also a good idea to seek the advice of a seasoned professional.
The Law of Contract is not only an important thing for business rather it is an essential law to carry on trade, business or commerce smoothly as it definiteness in the business transactions that affects the entire society. India is considered as a developing country with a mixed economy and in the 21st century, several new businesses and startups are emerging across the country. Make in India, Startup India, Execute India, and few other initiatives were started by the government to make India grow in the global market. These got boosted up when the Pandemic hit the nation and everything went virtual. People started working from and this was the time when many new startups and businesses came and grew up.
Unlocking the reality of preventive detention laws in India
Criminal laws act as a tool to prosecute criminals and also to prevent or reduce the risk of an anticipated future harm. Such measures enable the state to criminalize conduct at an early stage in order to allow the authorities to take action, to incapacitate suspected future wrong doers, keeping them behind the bars for an extended period and all this is done in the garb of public protection and security. Classical theories of jurisprudence comprehend the relationship between states and citizens. A citizen’s obligation to obey to the sovereign is a tacit form of consent and in return the state owes a deemed duty to protect the citizens from hazards, threats and any form of violence. With this rationale, the state proceeds towards fostering in itself the power the prevent an individual or a group from committing any harm. Broadly, preventive detention is a measure if it is created to avert or reduce the frequency or impact of an unacceptable risk or harm.
MEANING OF DETENTION
There is no universally accepted definition of preventive detention but in general sense preventive detention means to detain a person in order to prevent him from committing any possible future crime. There is another similar type of detention called ‘administrative detention’ which is more often used in civil law countries and on the other hand preventive detention’ is more often used in common law countries. The major difference between two types of detention is that in a former case detention is a tool for administration and on the other hand in the later case detention is a tool to prevent a ‘potential threat’.
There is also a third type of detention, ‘punitive detention’ the main purpose of which is to punish the person for an offence committed only after a trial and conviction in a court of law. As the name suggests the major difference between punitive detention and preventive detention is that one talks about punishment and other about prevention.
CONSTITUTIONAL PARADOX OF PREVENTIVE DETENTION LAWS IN INDIA
India chose to be a democratic country with inherent values of human rights embedded in our Constitution. However, the irony lies in the fact that the Constitution makers still chose to grant exemption to prevention detention laws when once they were victims of the same despotic laws.
Under Entry 9 the Union list, Parliament has the absolute power to enact laws with regard to preventive detention for reasons connected with security, defence and foreign affairs of India. Under Entry 3 of the Concurrent, both the state and the central government have been vested with the powers of enactment of such laws which related to the maintenance of public order, maintenance of supplies and services essential to the community etc. Preventive detention finds place in Constitution and that too under Fundamental Rights. Article 22(3) provides that: “if the person who has been arrested or detained under preventive detention laws then the protection against arrest and detention provided under Article22 (1) and 22 (2) shall not be available to that person.” This is why article 22(3) cannot be said as the fundamental right but a fundamental danger to the liberty of a person.
The Criminal Procedure Code of India also provides for Preventive detention under Section 151 as: “A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.”
In Union of India v Paul Nanickan and Anr, the Supreme Court of India stated: “the object of preventive detention is not to punish a man for having done something but to intercept him, before he does it, and to prevent him from doing it. No offence is proved, nor any charge formulated; and the justification for such detention is suspicion or reasonable probability and not criminal conviction, which can only be warranted by legal evidence.”
The main purpose for inserting preventive detention laws was to prevent the commission of a crime which are prejudicial to law and order of a state but it has failed miserably to serve its purpose and on the other hand is proving to be a tool to curtail the liberty of an individual.
Clause (3) of Article 22 is the main escape that outrightly exempts the applicability of rights of an arrested person as conferred by Article 22. Preventive detention thus allows detention without legal trial. At the same time, the constitution provides safeguards in case of misuse of preventive detention laws.
JURISPRUDENCE OF PREVENTIVE DETENTION LAWS VIA THE INDIAN JUDICIARY
The first case in post-independent India where the constitutionality of the Preventive Detention Act, 1950 was questioned was the AK Gopalan Vs State of Madras. The court gave a green flag to the Preventive Detention Act because of the presence of the explicit provisions of Article 22(5). Although the petitioner made a good attempt by challenging the law in violation of Article 14, 19 and 21 of the Constitution. Later, PDA lapsed in 1969 and Parliament enacted the Maintenance of Internal Security Act (MISA) two years later. The infamous emergency of 1970s exercised MISA as a political weapon to curb political criticism and dissent. MISA expired in 1978 but paved way for the birth of another preventive detention law which is National Security Act (NSA) which is in effect today. Simultaneously, in 1967 the government enacted Unlawful Activities Prevention Act (UAPA) to restrict the fundamental rights of freedom of speech and expression, freedom to assembly peaceably without arms and to form associations. UAPA has undergone half a dozen amendments since then and is currently also recognized as a terror law.
It is pertinent to note that, the law in India allows detention of individuals in order to prevent act that may threaten ‘national security’ or ‘public order’. But the author wants to argue that neither the constitution nor the preventive laws expressly define what amounts to national security or public order or what possibly are the range of acts that may fall under these categories of offences. This deficiency on the fundamental clarity poses a challenge on the legality of these laws. The courts have justified preventive detention orders and given some direction in this regard in the case of Ram Manohar Lohia v. State of Bihar, wherein the court differentiated the concepts pf ‘security of state, public order and law and order’. The Court concluded that law and order represent the largest circle within which there is a smaller circle of public order and the smallest circle is the security of the state. So, it can be seen that what may affect law and order might not affect public order, similarly what may affect public order might not affect security of state.
However, the state is trying to normalize preventive detention under the umbrella of ‘national security’ and invoking judicial remedies in preventive detention cases becomes a rare option. The Apex Court has also mistakenly made a dangerous viewpoint in the case of Union of India Vs Dimple Happy Dhakkad where the accused were already arrested under the regular criminal process but were also subject to the preventive detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA) as the case involved gold smuggling. Bail applications were rejected twice, The Apex Court very narrowly failed to consider the pre-existing detention of the accused when they were already languishing in jail for 2 months before the preventive detention order. The Supreme Court relied completely on the doctrine of the ‘subjective satisfaction’ of the detaining authority. The author undoubtedly admits the limitations of judicial review in detention orders but at the same time our Apex Court has itself widened the horizons of judicial review in arbitrary detention orders. The judiciary as in ADM Jabalpur has transformed itself to completely outlaw its tragic effect of fundamental freedoms and constitutionalism and overruled in the landmark Puttaswamy judgment. Moreover, the court in the case of Prabhu Dayal Deorah Vs. D.M Kamrup have rightfully assented to test the grounds on which the detention orders are passed on the lines of arbitrariness and vagueness. In another case of Bhawarlal Ganeshmalji v. State of Tamil Nadu, the court created a judicial requirement that the allegation must have a ‘live link’ with the present situation to justify the need of preventive detention.
It is significant to substantiate the recent judgment of Allahabad High Court in the Habeas Corpus case of NuzhatPerween Vs State of Uttar Pradesh. Briefly stating the facts of this case, Dr. Kafeel Khan (son of Nuzhat Perween) gave a public speech in Aligarh Muslim University. It was alleged that his speech incited feelings of communal disharmony and also lead to violent protests by some groups of students. A preventive detention order was passed against him to maintain public order in the district and he was put behind the bars. He applied for the bail and the bail was granted. What happens next is the episode which actually happens in our system. The executive did not enforce the bail order. When the court passed a second order to release Dr. Khan, the state claimed that the order was notified later and they have taken a preventive detention order authorized by the District Magistrate, Aligarh. When this matter reached the constitutional High Court of Allahabad, it took six months for a decision to be made. The inordinate delay is in itself a violation of the fundamental liberty of a person whose crime is a mere allegation. The petitioner mentioned that he did not have adequate material and thus his right to effective representation against is detention is violated. The Court agreed with this argument because the petitioner was given the CD of his speech but was given any means to play his disc. He was neither supplied the main transcript which was the primary basis for his preventive detention. Next, the court was asked to determine the contents of his speech as to whether it is of such a nature that a reasonable person could apprehend any disturbance to public order. The state correctly claimed that it is not open for the courts to wear the shoes of the preventive detention authority and the court cannot substitute their opinion in place of the ‘subjective satisfaction of the detaining authority’.
However, the court walked one step ahead and contradicting the above doctrine stated that ‘The expression “subjective satisfaction” means the satisfaction of a reasonable man that can be arrived at on the basis of some material which satisfies a rational man. It does not refer to whim or caprice of the authority concerned.’ In line with this principle of judicial scrutiny in the detention authority, the court noted that the speech delivered by the detenu was presented in parts by the police and not holistically. The speech is in no way against the maintenance of public order and therefore the closure of examining record as suggested would be nothing but a licence to allow the executives to act at their whims or caprice. This would be against the fundamentals of our constitutional values and provisions.
In the recent bail order of the Delhi High Court in the case of Devangana Kalita Vs State of NCT of Delhi the court strongly observed that the state in its anxiety to suppress dissent has blurred the line of constitutionally guaranteed right to protest and terrorist activity. The Court uprightly confronted Section 43D(5) of the Unlawful Activities Prevention Act. Quoting the court ‘The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act as understood under the UAPA’
In the latest 2019 amendment, individuals can also be designated as ‘terrorist’ by way of Section 35. Not just that, under Section 43D(5), bail can be denied by relying upon the prosecution documents even though they are inadmissible in courts. This archaic provision has been affirmed by the Apex Court of the country in the case of National Investigation Agency Vs. Zahoor Ahmed Shah Watali. This is the point of concern.
The tragic death of Father Stan Swamy is one such harshest reality of UAPA who was languishing in jail at the age of 84, a man who fought for the rights of the tribals and is applauded by the world. Many other renowned educators and activists like Professor Sudha Bhardwaj, Tamil Poet Varvara Rao etchave been detained under this law in the controversial ElgaarParishad and Bhima Koregaon case. Student activists have been put behind the bars for more than a year only because they dissent from those in power. The dissenting opinion of Hon’ble Justice DY Chandrachud in the Romila Thapar Case enlightens the current scenario of the arbitrariness of these laws. The complexity is embedded in Article 22 which guarantees protection against arrest and detention, yet it provides exception for preventive detention laws and our so called ‘democratic governments’ have time and again enacted preventive detention laws like MISA, UAPA, TADA, POTA, NSA etc. to curb voice raised against them.
All these legislations outlaw the fundamental rights coupled with the basic human rights. Article 10 of the Universal Declaration of Human Rights embodies the rule of fair hearing in every circumstance and this has been recognized as the basic human tenant. The state, under the misconception of protecting the security of the country, has actually put the country in a state of turmoil. Where at one instance Arnab Goswami is granted bail in 24 hours,
Father Stan Swamy was denied medical bail every time he knocked the doors of the court. The question is who actually are we protecting under these arbitrary preventive detention laws. The answer is none. We are actually protecting the state from dissent.
The constitutional courts of the country must remind themselves the crucial judgment if Maneka Gandhi Vs. Union of India which has expanded the horizons of Article 21 and the court also heard a batch of petitions challenging the National Security Act. In the case of A.K. Roy Vs Union of India upheld the validity of the Act by completely relying on Article 22 (3)(b). After this judgment, preventive detention laws have never been tested constitutionally and this settled proposition is proving to be very unsettling now. The author argues and concludes by stating that the narrowed interpretations of Article 22 have ceased to exist when the Apex Court re-affirmed due process into the constitution and the State cannot rely on this provision anymore while putting people behind the bars for months without giving them adequate legal representation. The judiciary must uphold constitutionalism of the constitution.
It is pertinent to note that the law in India allows detention of individuals in order to prevent acts that may threaten ‘national security’ or ‘public order’. But the author wants to argue that neither the Constitution nor the preventive laws expressly define what amounts to national security or public order or what possibly are the range of acts that may fall under these categories of offences. This deficiency on the fundamental clarity poses a challenge on the legality of these laws. The courts have justified preventive detention orders and given some direction in this regard.
SC RIGHTLY OVERTURNS TWO BOMBAY HC JUDGEMENTS ON POCSO
In a most significant turn of events, we saw how just recently on November 18, 2021, the Apex Court in Attorney General for India v. Satish and another in Criminal Appeal No. 1410 of 2021 (@ Special Leave Petition (CRL) No. 925 of 2021) and connected appeals, held that touching a child with sexual intent even through clothing is an offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act thus setting aside two separate decisions of the Bombay High Court passed on January 15 and January 19 that made skin-to-skin physical contact a necessary condition to hold someone guilty of sexual assault. The Court directed the convicted persons top surrender within four weeks to undergo the remaining sentence of three years and five years awarded to them by a special POCSO court in 2020. It may be recalled that Attorney General KK Venugopal was the first to file an appeal against one of the High Court judgments in question. Later, we saw how the Maharashtra government followed by the National Commission for Women also filed appeals. Even the accused were represented in the case and the court appointed senior advocate Siddharth Dave to assist in the matter as amicus curiae.
While underscoring the detrimental effect of allowing such an interpretation, a Bench of Justice UU Lalit, Justice S Ravindra Bhat and Justice Bela M Trivedi said that, “Restricting the interpretation of the words “touch” or “physical contact” to “skin-to-skin contact” would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision.” Through two separate but concurring views, Justice Bela M Trivedi writing for herself and Justice UU Lalit and Justice S Ravindra Bhat traced the origin of the words “touch” and “physical contact” and noted that “skin-to-skin” contact was never intended to be incorporated by Parliament while enacting the POCSO Act in 2012.
To start with, it is first and foremost pointed out by the Bench in para 2 after granting leave as stated in para 1 that, “The four Appeals filed by the appellants – Attorney General for India, by the National Commission for Women, by the State of Maharashtra and by the appellant-accused Satish respectively, arising out of the Judgment and Order dated 19.01.2021 passed in Criminal Appeal No. 161 of 2020 by the High Court of Judicature at Bombay, Nagpur Bench, and the Appeal filed by the Appellant-State of Maharashtra, arising out of the Judgment and Order dated 15.01.2021 passed in the Criminal Appeal No. 445 of 2020 by the same Nagpur Bench, encompass similar contextual legal issues, and therefore, permit us this analogous adjudication.”
I. FACTUAL MATRIX IN CASE OF THE ACCUSED-SATISH
In hindsight, the Bench then recalls in para 3 that, “The Extra Joint Additional Sessions Judge, Nagpur (hereinafter referred to as the Special Court) vide the Judgment and Order dated 5th February, 2020 passed in the Special Child Protection Case No. 28/2017 convicted and sentenced the accused-Satish for the offences under Sections 342, 354 and 363 of the Indian Penal Code (for short ‘IPC’) and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (For short POCSO Act). Being aggrieved by the same, the accused-Satish had preferred an appeal being Criminal Appeal No. 161 of 2020 in the High Court of Judicature at Bombay, Nagpur Bench. By the Judgment and Order dated 19th January, 2021, the High Court disposed of the said appeal by acquitting the accused for the offence under Section 8 of the POCSO Act, and convicting him for the offence under Sections 342 and 354 of the IPC. The accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 500/- in default thereof to suffer R.I. for one month for the offence under Section 354 and to undergo imprisonment for a period of six months and to pay fine of Rs. 500/-, in default thereof to suffer R.I. for one month for the offence under Section 342 of IPC.”
To put things in perspective, the Bench then envisages in para 4 that, “The case of the prosecution before the Special Court as emerging from the record was that the informant happened to be the mother of the victim aged about 12 years. The accused-Satish was residing in the same area where she was residing i.e. Deepak Nagar, Nagpur. On 14.12.2016 at about 11.30 a.m., the victim had gone out to obtain guava. Since she did not return back for a long time, the informant-mother went in search of the victim. At that time, one lady Sau Divya Uikey who was staying nearby, told her that the neighbouring person (the accused) had taken her daughter along with him to his house. The informant, therefore, went to the house of the accused. The accused at that time came down from the first floor of his house. The informant having made inquiry about her daughter, the accused told her that she was not there in his house. The informant, however, barged into the house of the accused to search her daughter as she heard the shouts coming from a room situated on the first floor. She went to the first floor and found that the door of the room was bolted from outside. She opened the door and found her daughter who was crying in the room. On making inquiry as to what had happened, her daughter told her that the accused had asked her to come with him and told her that he would give her a guava. He took her to his house. He then pressed her breast and tried to remove her salwar. At that time, the victim tried to shout but the accused pressed her mouth. The accused thereafter left the room and bolted the door from outside. The informant, on having learnt such facts, went to the Police Station along with her daughter to lodge the complaint. The said complaint was registered as Crime No. 405/2016 at Police Station Gittikhadan, Nagpur. It was further case of the prosecution that when the police rushed to the spot, they saw that the accused was trying to commit suicide by hanging himself. He, therefore, was sent to the hospital for treatment. The spot panchanama was drawn and the statement of the victim was got recorded under Section 164 of Code of Criminal Procedure before the Magistrate. After the completion of the investigation, the charge-sheet was filed in the Special Court, Nagpur against the accused. The Special Court after appreciating the evidence on record, passed the Judgment and Order of conviction and sentence as stated hereinabove.”
Briefly stated, the Bench then recollects in para 5 that, “The High Court in the appeal filed by the accused-Satish acquitted the accused for the offence under Section 8 of the POCSO Act and convicted him for the minor offence under Sections 342 and 354 of IPC by making following observations:
“18 . Evidently, it is not the case of the prosecution that the appellant removed her top and pressed her breast. The punishment provided for offence of ‘sexual assault’ is imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required. The act of pressing of breast of the child aged 12 years, in the absence of any specific details as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’. It would certainly fall within the definition of the offence under Section 354 of the Indian Penal Code.”
As a fallout, the Bench then reveals in para 6 that, “The above observations/findings made by the High Court, have caused the Attorney General for India, the National Commission for Women and the State of Maharashtra to file the appeals before this Court. The accused has also filed the appeal challenging his conviction for the offences under Section 354 and 342 of the IPC.”
Be it noted, the Bench then holds in para 40 that, “In the light of the afore-discussed legal position, if the findings recorded by the High Court are appreciated, it clearly emerges that the High Court fell into error in case of the accused-Satish in holding him guilty for the minor offences under Sections 342 and 354 of IPC and acquitting him for the offence under Section 8 of the POCSO Act. The High Court while specifically accepting the consistent versions of the victim and her mother i.e. informant about the accused having taken the victim to his house, having pressed the breast of the victim, having attempted to remove her salwar and pressing her mouth, had committed gross error in holding that the act of pressing of breast of the child aged 12 years in absence of any specific details as to whether the top was removed or whether he inserted his hands inside the top and pressed her breast, would not fall in the definition of sexual assault, and would fall within the definition of offence under Section 354 of the IPC. The High Court further erred in holding that there was no offence since there was no direct physical contact i.e. “skin to skin” with sexual intent.”
It cannot be glossed over that the Bench then observes in para 41 that, “The interpretation of Section 7 at the instance of the High Court on the premise of the principle of “ejusdem generis” is also thoroughly misconceived. It may be noted that the principle of “ejusdem generis” should be applied only as an aid to the construction of the statute. It should not be applied where it would defeat the very legislative intent. As per the settled legal position, if the specific words used in the section exhaust a class, it has to be construed that the legislative intent was to use the general word beyond the class denoted by the specific words. So far as Section 7 of the POCSO Act is concerned, the first part thereof exhausts a class of act of sexual assault using specific words, and the other part uses the general act beyond the class denoted by the specific words. In other words, whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, would be committing an offence of “sexual assault”. Similarly, whoever does any other act with sexual intent which involves physical contact without penetration, would also be committing the offence of “sexual assault” under Section 7 of the POCSO Act. In view of the discussion made earlier, the prosecution was not required to prove a “skin to skin” contact for the purpose of proving the charge of sexual assault under Section 7 of the Act.”
Quite significantly, the Bench then holds in para 42 that, “The surrounding circumstances like the accused having taken the victim to his house, the accused having lied to the mother of the victim that the victim was not in his house, the mother having found her daughter in the room on the first floor of the house of the accused and the victim having narrated the incident to her mother, were proved by the prosecution, rather the said facts had remained unchallenged at the instance of the accused. Such basic facts having been proved by the prosecution, the Court was entitled to raise the statutory presumption about the culpable mental state of the accused as permitted to be raised under Section 30 of the said Act. The said presumption has not been rebutted by the accused, by proving that he had no such mental state. The allegation of sexual intent as contemplated under Section 7 of the Act, therefore, had also stood proved by the prosecution. The Court, therefore, is of the opinion that the prosecution had duly proved not only the sexual intent on the part of the accused but had also proved the alleged acts that he had pressed the breast of the victim, attempted to remove her salwar and had also exercised force by pressing her mouth. All these acts were the acts of “sexual assault” as contemplated under section 7, punishable under Section 8 of the POCSO Act.”
II. FACTUAL MATRIX IN THE CASE OF THE ACCUSED-LIBNUS
Of course, the Bench then lays bare in para 7 that, “The Additional Sessions Judge, Gadchiroli (hereinafter referred to as the Special Court) vide the judgment and order dated 5th October, 2020 passed in the Special POCSO case no. 07/2019 convicted and sentenced the accused-Libnus s/o Fransis Kujur for the offences punishable under Section 448 and 354-A (1)(i) of IPC and Sections 8 and 10 read with section 9 (m) and 12 of the POCSO Act. Being aggrieved by the same, the accused-Libnus had preferred an appeal being Criminal Appeal No. 445 of 2020 in the High Court of Judicature at Bombay, Nagpur Bench. Vide the Judgment and Order dated 15th January, 2021, the High Court maintained the conviction of the accused for the offences under Sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act and set aside the conviction of the accused for the offences under Sections 8 and 10 of the POCSO Act. The High Court considering the nature of the alleged acts and the punishment provided for the alleged offences, modified the sentence imposed by the Special Court to the extent he had already undergone, and directed to set him free.”
In this context, it would be instructive to note that the Bench then mentions in para 43 that, “So far as the case of the other accused-Libnus is concerned, the High Court vide its impugned judgment and order, while maintaining the conviction of the accused for the offences punishable under sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act, has acquitted the accused for the offence under Sections 8 and 10 of the POCSO Act. Pertinently the High Court while recording the finding that the prosecution had established that the accused had entered into the house of the prosecutrix with the intention to outrage her modesty, also held that the acts “holding the hands of the prosecutrix” or “opened the zip of the pant” did not fit in the definition of sexual assault. In the opinion of the Court, the High Court had fallen into a grave error in recording such findings. When the alleged acts of entering the house of the prosecutrix with sexual intent to outrage her modesty, of holding her hands and opening the zip of his pant showing his penis, are held to be established by the prosecution, there was no reason for the High Court not to treat such acts as the acts of “sexual assault” within the meaning of Section 7 of the POCSO Act. The High Court appears to have been swayed away by the minimum punishment of five years prescribed for the offence of “aggravated sexual assault” under Section 10 of the POCSO Act as the age of the prosecutrix was five years and the sexual assault if committed on the victim who is below 12 years is required to be treated as the “aggravated sexual assault” as per Section 9(m) of the Act. However, neither the term of minimum punishment nor the age of the victim could be a ground to allow the accused to escape from the clutches of Section 7 of the POCSO Act. The alleged acts of the accused in entering the house of the prosecutrix with sexual intent to outrage her modesty, holding her hands and unzipping his pant showing his penis to the prosecutrix having been held to be proved by the prosecution, they would certainly be the acts falling within the purview of the “sexual assault” as contemplated in the second part of Section 7 i.e. “……… or does any other act with sexual intent which involves physical contact without penetration”. The Court, therefore, has no hesitation in holding that the accused-Libnus had committed an offence of “sexual assault” within the meaning of Section 7 of the POCSO Act and the prosecutrix being below the age of 12 years, he had committed an offence of “aggravated sexual assault” as contemplated under Section 9(m) of the said Act, liable to be punished with the imprisonment for a term not less than five years under Section 10 of the POCSO Act. In that view of the matter, the judgment and order of the High Court insofar as it has set aside the conviction of the accused-Libnus for the offences under Section 8 and 10 of the POCSO Act is liable to be set aside, and the judgment and order of conviction and sentence passed by the Special Court is required to be restored.”
As a corollary, the Bench then observes in para 44 that, “In the aforesaid premises, the judgments and orders dated 19.01.2021 and 15.01.2021 passed by the High Court of Judicature at Bombay, Nagpur Bench, at Nagpur in Criminal Appeal No. 161 of 2020 and Criminal Appeal No. 445 of 2020 respectively are hereby quashed and set aside; and the judgments and orders dated 05.02.2020 and 05.10.2020 passed by the Extra Joint Additional Sessions Judge, Nagpur in Special Child Protection Case No. 28 of 2017 and by the Special Court, Gadchiroli in POCSO Case No. 07/2019 are restored.”
It is worth noting that the Bench then holds in para 45 that, “Accordingly, the accused-Satish is hereby convicted for the offences punishable under Section 8 of the POCSO Act and under Sections 342, 354 and 363 of the IPC. He is directed to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.500/- and in default thereof to suffer simple imprisonment for a period of one month for the offence under Section 8 of the POCSO Act. Since he has been sentenced for the major offence under Section 8 of the POCSO Act, no separate sentence is imposed upon him for the other offences under the IPC.”
What is also worth noting is that the Bench then also holds in para 46 that, “The accused-Libnus s/o Fransis Kujur is hereby convicted for the offences punishable under Sections 354-A (1)(i) and 448 of the IPC as also for the offences under Sections 8, 12 and 10 read with Section 9(m) of the POCSO Act. He is directed to undergo rigorous imprisonment for a period of five years for the offence under Section 10 of the POCSO Act and to pay fine of Rs. 25,000/- (Rupees twenty five thousand only) and in default thereof to suffer simple imprisonment for a period of six months. Since he has been sentenced for the major offence under Section 10 of the POCSO Act, no separate sentence is being imposed upon him for the other offences under the IPC and the POCSO Act.”
Furthermore, the Bench then directs in para 47 that, “Both accused – Satish and Libnus are directed to surrender themselves before the concerned Special Courts, within four weeks from today.”
It cannot be glossed over that the Bench then holds in para 48 that, “Before parting, it may be noted that in the case of the accused-Libnus, the State of Maharashtra while filing the Appeal before this Court had not produced the certified copy of the judgment of the High Court, however, had produced a copy of a certified copy, wherein the High Court had recorded acquittal of the accused for the offence under Sections 8, 10 and 12 of the POCSO Act, while maintaining his conviction under Sections 448 and 354-A(1)(i) of the IPC, whereas in the copy of the impugned judgment of the High Court downloaded by the respondent-accused produced on record by the learned Advocate for the accused, the High Court had recorded the conviction of the accused for the offence under Sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act. There being a discrepancy in the said two copies of the impugned judgment of the High Court, the learned Advocate for the respondent-accused had filed an I.A. bringing to the notice of the Court about such discrepancy. The Court, therefore, had vide its order dated 27.10.2021 directed the Registrar of the High Court to send the certified copy of the decision of the High court dated 15.01.2021 passed in Criminal Appeal No. 445 of 2020. Accordingly, the Assistant Registrar of the High Court of Bombay, Nagpur Bench, has sent the certified copy of the said judgment.”
Most astonishing is what is then stated by the Bench in para 49 that, “It is very surprising to note that the Registry of High Court of Bombay, Nagpur Bench, has certified the copy of the impugned judgment by affixing the stamp on the back side of every page of the judgment which is blank. The said copy of the judgment appears to have been downloaded from the website and, therefore, does not bear even the signature or the name of the concerned judge at the end of the judgment. The certificate that the said copy is a true copy of the judgment, is also not written at the foot of the judgment as contemplated in Section 76 of the Indian Evidence Act. Such a practice, if followed by the Nagpur Bench of the Bombay High Court, may allow the miscreants to manipulate or commit mischief in the judicial orders which are used as the public documents having great significance in the judicial proceedings. The Registrar General of the Bombay High Court, therefore, is directed to look into the matter and ensure that proper procedure for preparing the certified copies of the judgments/orders of the Court in accordance with law is followed.”
It then notes in para 50 that, “All the five appeals stand disposed of accordingly.”
Finally, the Bench then holds in para 51 that, “It will be failure on our part if we do not extend gratitude of appreciation for the enormous assistance rendered by learned senior Advocate Siddhartha Dave, learned Amicus Curiae Siddharth Luthra, learned Senior Advocate appearing on behalf of the accused through Supreme Court Legal Services Committee, Ms Geeta Luthra, learned Senior Advocate appearing for National Women Commission and all other advocates who have appeared in the matter.
The initiative taken by the learned Attorney General for India Mr KK Venugopal in filing the appeal with all sense of expressing his concern in the cause also deserve to be appreciated.”
It must be mentioned that Justice Ravindra S Bhat in his separate but concurring judgment said that, “The reasoning in the High Court’s judgment quite insensitively trivializes – indeed legitimizes – an entire range of unacceptable behaviour which undermines a child’s dignity and autonomy, through unwanted intrusions.”
While cautioning Judges in interpreting provisions of the law, Justice Bhat said that, “It is no part of any Judge’s duty to strain the plain words of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity, as POCSO does.”
On a concluding note, it must be said that all the Judges must always strictly adhere to what the Apex Court three Judge Bench in this extremely commendable, cogent, courageous and convincing judgment has laid down so clearly. It is clearly laid down that skin-to-skin touch is not must to judge POCSO offence. What is essential is sexual intent. If sexual intent is there then that is sufficient to convict the accused! We thus see that the Apex Court has in this notable case decisively rejected the narrow interpretation of sexual assault against children and rightly held that unacceptable behavior cannot be trivialized. Very rightly so!
Sanjeev Sirohi, Advocate
Biomedical Waste Disposal: An Analysis
Biomedical waste is composed of animal and human waste, treatment equipment, for instance, syringes, needles, and the other different kinds of amenities in the process of research and treatment (Bio-Medical Waste Management Rules, 2016). Adequate biomedical waste management concerning the proper rules and regulations were consistently overlooked for years, specifically in a developing country like India.
India, the second most populated country worldwide after China and the world’s second worst-hit country by COVID-19 officially, and unofficially it is undoubtedly the worst affected. India now has 20.7 million confirmed cases of the deadly Covid-19 virus. However, the recovery rate among Indian population is also very remarkably high. The administration has also taken rigorous steps to tackle Covid-19, but this has resulted in piles of Bio-medical waste. According to Central Pollution Control Board (CPCB) data, approximately 4527 tons of bio-medical waste was generated in December 2020. This has unduly pressurised the waste management system of country. Lack of resources has further added to this problem of waste management. India faced severe consequences during the second wave of COVID-19 and responding to which the medical system is also overburdened. These critical conditions have also posed a challenge in the administration to manage the bio-medical waste generated in treating the patients found positive with Covid-19. The country has a total of 238,170 healthcare facilities, out of which 87,267 are bedded while the remaining 151,208 are non-bedded healthcare facilities (HCFs) generating BMW. According to a study, improper management and disposal of bio-medical waste could expose freely roaming animals and humans with diseases like Covid-19. Thus, it becomes imperative to think for effective management strategies and spare some resources to manage bio-medical waste.
Untreated and improperly managed BMW is a potential source of infection. Millions of contaminated personal protection equipment (PPE) (e.g., facemasks and gloves) would end up as wastes, which, if improperly managed, can pose environmental and health threats. In a recent study (Kampf et al., 2020) finds that the coronavirus can survive on material surfaces (e.g., metals, glass, and plastics) for up to 9 days. Such threats may be ameliorated in developed countries where green and sustainable waste management strategies, capable of containing such viruses, are practiced. However, the threats would be much higher in developing countries that have poor waste management strategies. In many developing countries, solid wastes are dumped in the open and in poorly managed landfills where waste pickers without wearing proper PPE would scavenge for recyclable materials (World Bank, 2019).
Thus, it is the right time to call upon the policymakers to ponder this problem, which could become an uphill climb later if not given due attention.
IMMEDIATE ACTION AND FUTURE POLICY RECOMMENDATIONS:
The lockdown had led to enhancement in the origination of the food and packaging waste from the domestic households, which should be disseminated as per the current waste accumulation rules. The occurrence of the collection of biodegradable waste could be modified according to the locality. However, the recyclable waste could be reduced according to the accessibility of the people as well as the trucks. As they should be helped to accumulate them in the sealed bags for a longer tenure. There would be more generation of infectious waste and toxic waste if more heed is given to sanitary products and other health care products. So, it is very much necessary that it should be accumulated in double lined sealed bags with a particular symbol. The food packaging and the other waste should be handled with possible care and caution as it should be carried in a double layered compostable bag.
There would be less charge on the management of the hazardous waste as more waste from the households is being compensated by the smaller number of wastes from the restaurants, eateries and the other complexes. It is necessary to be conscious for the exposure of the waste as long as it exposes the pathogen to spread. The people living at their home required to be more prudent as there is a need of dissemination of the waste. The propagation of the same should be done through advertisements, newspapers or other source of media.
Few Policy recommendations deliberately made for the policymakers which might assist a system to tackle the pandemic:
a) Identification of the key role: This is the prime duty of the government to recognize the part which has to be played by sanitation workers. For instance, UK government has specifically given key worker status to their workers as the government would be fulfilling all the requirements of their family during the COVID crises so they could continue their services.
b) Formulation of the Global Common Platform of Knowledge: It is very much necessary to formulate a platform as well as foundation of knowledge so that the people should gain the know how of handling the waste as they could curb themselves in need of the hour.
c) Pervasive standardization of the coding: The universal standards for the color coding are very much significant for disseminating the bio medical waste. As it would provide assistance to the identification of the type and the characteristic of the waste. Proper training to the workers in the regard would also be very much helpful.
d) Technology Based Solutions: To deliver the high quality by products, it is very much necessary to emphasize the gasification, hydrothermal, and carbonization kind of techniques. Additionally, there should be investment of research into it.
e) Implementations of the principals from circular economy: To reduce the amount food wasted, re-utilization of the food waste and nutrient recycling are the major fundamentals of the circular economy in the food system and should be executed both at producer as well as consumer level. Furthermore, the circular-based models’ execution would assist in deviation of the accumulated waste from the disposal sites to the recyclable plants; however, it would also help in declining the generation of the waste in the initial place.
f) Propagation Regarding Circular economy: People are not knowing about the methodology behind the circular economy so it is the dire need to aware people regarding the concept of circular economy. The fabrication of the recyclable products would, for instance, bioplastic and biodegradable products should be highly promoted as well rewarded.
g) Moving from awareness to Action: Just by propagating the general public regrading the same would not help rather they should be highly motivated to implement all the schemes practically. Media campaigning would really assist in effecting the people’s behavior and would also assist in the transformation of their musings to converting the economy into a greener one.
Cyber crime regulation
The criminal abuse of information technology and the necessary legal response are issues that have been discussed ever since technology was introduced. Over the years, various solutions have been implemented at the national and regional levels. One of the reasons why the topic remains challenging is the constant technical development, as well as the changing methods and ways in which the offences are committed. The reliance on traditional theories, could not help combat cybercrime, and new laws and enforcement measures are required to address them. The Information Technology Act 2000 and amendments thereafter were not drafted with an eye on the level of involvement of computers that we see today in crimes. The legislation lacks when combating new age computer crimes.
DIFFERENCE OF CYBER LEGISLATION FROM CONVENTIONAL LAWS & LEGISLATIONS:
Computer crimes are ‘inherently different’ from other criminalities, and therefore they constitute a new category of criminal conduct. Nonetheless, the traditional laws were drafted long before the appearance of computers, and were drafted without any prediction of the involvement of computers. Therefore, the inadequacy of traditional criminal law in cyber context, the various reactions to computer crimes of individual states, to protect the financial interests, and to enhance the national security it is imperative to have/ to enact a new statute to keep up with the developments of technology and related crimes.
4 IMPORTANT QUESTIONS:
This brings to considering the four aspects:
Do we need cyber-specific legislation to regulate cybercrime?
If we do need this specific legislation, what adequate and systematic approaches can this legislation take to determine and regulate cybercrime?
What principles are sufficient and appropriate to determine jurisdiction over cybercrime?
What is the function and influence of the Convention on Cybercrime in shaping appropriate legislation and fostering international cooperation against cybercrime?
PROBLEMS FACED IN COMBATING CYBERCRIME
The Technology Era we are in and risks associated with it requires developing various strategies aimed at reducing the risk posed by cyber wrongdoing, and legislation is an indispensable part of their strategy. For effective legislation in tackling cyber wrongdoing, especially when it comes to combating cybercrime below mentioned issues/ problems needs attention.
The first problem faced by criminal law systems is that existing criminal offences fail to cover the newly emerged forms of cyber wrongdoing.
The second problem is that even where there are cyber-specific offences on the statute books, the transitional nature of cybercrime can blur their scope. ‘Criminal sanction is the most drastic of the State’s institutional tools for regulating the conduct of individuals,’ thus the scope of criminal law must intentionally be limited. However, criminal provisions with such ‘intentionally’ limited scope soon become outdated when faced with the rapid evolution of cybercrime. Developments in computers themselves can serve as an example. In the field of cybercrime legislation, the concept of the computer undeniably enjoys a central position;
The third aspect is that the transnational nature of cybercrime confounds traditional principles of jurisdiction. Not only is there an issue of which country has the authority to prosecute, but also the question of which country has priority to prosecute if more than one country claims jurisdiction. Stories are often reported in newspapers in which an actor from country A commits cybercrime in country B by hacking into a computer located in country C. In such a case, which country has the jurisdiction to prosecute the actor and bring them to trial?
Lastly, cybercrime also presents problems at the international level. Namely, cross-border cybercrime manifests the inconsistencies of laws and regulations across state boundaries. Cybercrime is national: making it an offence by nature something which national legislation should govern. However, it also has international consequences: a country’s position as regards cyber laws or lack of cyber laws can have a considerable impact on other countries.
Cybercrime often has an international dimension. For example, emails with illegal content, illegal financial transactions etc often pass through a number of countries during the transfer from sender to recipient, or illegal content is stored outside the country. Within cybercrime investigations, close cooperation between the countries involved is very important. The existing mutual legal assistance agreements (with some states) are based on formal, complex and often time-consuming procedures, and in addition often do not cover computer-specific investigations. Setting up procedures for quick response to incidents, as well as requests for international cooperation, is therefore vital.
EXCHANGE OF INFORMATION: (AT NATIONAL LEVEL AND INTERNATIONAL LEVEL)
1. Each State party shall consider analysing, in consultation with relevant experts, trends with respect to cyber crimes in its territory, as well as the circumstances in which such offences are committed.
2. The States parties shall consider disseminating statistics and analysis concerning cyber crimes with a view to developing, to the extent possible, common definitions, standards and methodologies, including best practices to prevent and combat such offences, and share them with one another and through international and regional organizations.
3. Each State party shall consider monitoring its policies and practical measures to combat cyber crimes, as well as assessing their effectiveness.
COOPERATION BETWEEN LAW ENFORCEMENT AGENCIES:
In a National Context:
At times, several agencies are involved in dealing with a single cybercrime or incident and therefore it becomes imperative that a close cooperation and coordination is maintained between different agencies involved in such a case, with the aim of increasing the efficiency of law enforcement action to combat the cyber offences.
AT INTERNATIONAL LEVEL
State parties shall cooperate closely with one another, acting according to their respective domestic legal and administrative systems, with the aim of increasing the efficiency of law enforcement action to combat the cyber offences. For example, State parties shall take effective measures aimed at:
a) strengthening or, where necessary, establishing channels of communication between their competent authorities, agencies and services to ensure secure and rapid exchange of information about all aspects of the offences covered by this Convention, including, if the States parties concerned deem it appropriate, links with other criminal activities;
b) cooperation with other States parties in conducting investigations in relation to the offences covered by this Convention for the purpose of establishing:
i) the identity, whereabouts, and activities of persons suspected of involvement in such offences or the whereabouts of other persons involved;
ii) the movement of proceeds of offences or property derived from the commission of such offences;
iii) the movement of property, instruments, equipment, or other means used or intended for use in the commission of such offences;
c) transferring items that were used to commit offences, including instruments of offence; items that were acquired as a result of offences or as a reward for them, or items that the offender received in exchange for items acquired in this way; and items that may serve as evidence in a criminal case;
The range of technology-enabled crime is always evolving, both as a function of technological change and in terms of social interaction with new technologies. With each preceding year, new trends in computer crime and cybercrime continue to be discovered in the 21st century. The first decade of the new millennium was dominated by new, highly sophisticated methods of committing crimes, such as “phishing”, and “botnet attacks”, and the emerging use of technology that is more difficult for law enforcement to handle and investigate, such as “voice-over-IP(VoIP) communication” and “cloud computing”. It is not only the methods that changed, but also the impact. As offenders became able to automate attacks, the number of offences increased. Responding to the growing challenges and nuances, it is high time that India enacts separate cybercrime legislation on high priority keeping in mind, at the national level, the limited coverage of traditional criminal provisions, the transitional nature of cybercrime, and the conflicts arising from jurisdictional issues are the main problems and At the international level, the inconsistencies among national legislations and non-existence of specific global treaty which need attention. The legislation should cover aspects related to newage cyber crimes, punishments, jurisdiction and cross border understanding on combating cybercrime for ensuring a safe, secure, resilient, vibrant, & trusted cyberspace.
(Khushbu Jain is advocate practicing in Supreme Court and Partner of law firm Ark Legal)
Differential pricing of products in India: An analysis
The Department of Legal Metrology (DLM), Bureau of Indian Standards (BIS), and the Food Safety and Standards Authority of India (FSSAI) are the primary regulatory authorities of domestic/foreign packaged, pre-packaged, or food items in India.
Maximum Retail Price (MRP) is a concept pertaining to sale/retail of products in specific markets, such as that of India, where merchandise is transferred from the manufacturer to the retailer with the highest retail price printed on the packaged/pre-packaged product.
The Department of Legal Metrology (DLM), Bureau of Indian Standards (BIS), and the Food Safety and Standards Authority of India (FSSAI) are the primary regulatory authorities of domestic/foreign packaged, pre-packaged, or food items in India. They set the parameters these products shall adhere to and are responsible for its compliance through manufacturers and relevant entities.
The labelling requirements for packaged commodities in India are governed by the aforementioned authorities under the following legislations/rules/regulations:
i. The Legal Metrology Act (LMA), 2009;
ii. The Legal Metrology (Packaged Commodities) Rules (LMPCR), 2011;
iii. The Food Safety and Standards Act, 2006; and
iv. Food Safety and Standards (Packaging and Labelling) Regulations, 2011.
However, the labelling requirements in India vary in different states, such as certain states require specifying the statutory warning in the local language, etc., including differential requirements for retail and wholesale packages.
2. Dual Pricing Regulations under LMA / LMPCR
A. LMA, 2009 supersedes SWM Act, 1976
The LMA, 2009 came into effect from 1st April, 2011, and was introduced to replace the Standards of Weights and Measures Act (SWM), 1976 with the purpose of establishing and enforcing standards of weights and measures or incidental aspects in India. A vital branch of this Act is the LMPCR, 2011 that deal with packaged goods and provide inter alia the method in which declarations are to be made on a product in compliance of its provisions.
Section 3 of the LMA, 2009 provides for its overriding effect on any other law in force at the relevant time, thereby effectively superseding the SWM, 1976. In this regard, the Authority for Advance Rulings has further, in the case of M/s Xerox India Ltd. v. The Commissioner of Customs, reiterated that “the Standards of Weight and Measures Act, 1976 was being repealed and substituted by the Legal Metrology Act, 2009 with effect from 1st March, 2011”.
However, it has to be noted here that the provisions of the Essential Commodities Act, 1955 shall override the provisions of the LMPCR, 2016 in respect of the standard quantity and/or the retail price of any essential commodity.
B. Advisories issued in respect of dual pricing regulations in consonance with the LMA/LMPCR
Furthermore, in the interest of the consumers, an advisory was issued to the following entities:
The Controllers of Legal Metrology of all States/UTs to enforce provisions related to overcharging and dual MRP; and
To all State Governments to ensure all declarations, including MRP, on all medical devices, however, only the manufacturer/importer/packer has the right to decide the MRP and not the retail seller.
3. Dual / differential pricing via various locations/channels
A. Instances where Differential/Dual-pricing was prohibited:
i. The Ministry of Corporate Affairs proposed an amendment to the LMA in 2017 and added Section 18(2A), which strictly prohibited the manufacturers/packers/importers to declare different prices on identical pre-packaged commodities. It was found to be in consonance with Section 2(1)(c) of the Act, wherein, a consumer could report charges on products that are in excess of those fixed by law or displayed on the goods, i.e. the MRP.
ii. Further, Explanation (2) to Section 4A of the Central Excise Duty Act, 1944 holds differential retail pricing to be valid. However, the case of Solidaire India Ltd. v. Fairgrowth Financial Services effectively concurred the prohibition of dual-pricing while holding that “for all those acts which begin with a non-obstante clause are special acts… In the event of a conflict, the LMA, 2017 shall prevail.”
iii. The Consumer Forum, in a complaint against Pepsi Co filed by five students of NLSIU through their Legal Aid Cell, held in their order dated 1st April, 2011 that “differential pricing amounts to unfair practice,.. and is bad in law”. The forum reiterated that the printing of different MRPs for the same material without any modification in its contents/quantity by a manufacturer not only is an unfair trade practice but also amounts to deficiency in service thereby further providing the retailers to gain extravagant profits and curtailing the customer’s right to an informed choice.
B. Instances where dual-pricing was permitted
While there is no legal proposition to have different MRPs for the same product, there is no explicit prohibition to it under the LMA/LMPCR as well. The 2017 amendment to the LMA, no doubt, prohibits dual pricing, however, the same has been enforced in the light of various exit gates, such as, conformity with law, larger national interest, delivery of services, comfortable environment, etc. Other sufficient grounds for upholding the validity of dual-pricing have been evolved by the Courts of India through a series of judgments.
The controversial evolution of the law relating to dual-pricing can be seen as follows:
i. In Pallavi Refractories v. Singhreni Colleries (prior to the enactment of the LMA, 2009), dual-pricing was held to be in accordance with law, on the grounds of serving ‘larger public interest’.
ii. In Hindustan Coca-Cola Beverages v. Siddarth Manchanda & Ors., it was observed that “the guilty party took the advantage of the said law, and hence justified its acts of selling the same commodity, under different MRPs, on the pretext that, Section 18(1) of Legal Metrology Act, 2009, mandated just the mention of MRP. Nowhere, was this mentioned that there cannot be a dual fixation of price on the commodity. The company here, justifies its very act of selling its Diet Coke Cane, and Rs. 60/- in Wave Cinema, which was available just for Rs.30/- at Easy Day. Holding that under LM rules of 2009, the only requirement was to have the MRP printed on every pre-packaged commodity, it was not at all prohibited to declare more than M.R.P. for the same Coca Cola Can, to be sold at different places, for different class of consumers. Hence, there was no unfair practice indulged, the suit being dismissed”.
iii. The Supreme Court of India, in a case has upheld dual pricing in hotels and restaurants. The Court relied on the rationale that a consumer prima facie enters the premises of hotels and restaurants, obviously not to purchase a commodity like a water bottle, but to enjoy the ambience, the environment of the said enterprise. Also, even if the consumer ends up buying a water bottle, it is not merely a sale of good, instead it is a combined sale of good and sale of service, which basically remains outside the scope of Legal Metrology Act, 2017.
iv. In pursuance of the above principle laid down by the Supreme Court, the Consumer Forum in the case of Vijay Gopal v. KFC Restaurants observed that:
“In view of the law laid down by the Supreme Court that there can be dual-pricing of the very same product to be sold at different outlets, the sale of water bottle and Frooti to the complainant for Rs.40 and s. 70 at KFC at Himayat Nagar branch as against Rs.20 and Rs. 35 sold in the general market cannot be said to be illegal”.
However, the Department of Legal Metrology, in pursuance of the forum’s order, clarified that ‘dual-pricing was permissible only in restaurants’, and that they considered food outlets in multiplexes as shops and not restaurants, wherefore, dual-pricing by shops which sell food items in multiplexes was not permissible.
Differential / Dual Pricing via E-commerce companies/websites
The retailers often via their online channels offer the goods at a discounted rate, as compared to the offline route. This may be done presuming that there might be a condition when, an online sale saves various costs of marketing and transportation, which have to be paid in an offline sale. Further, while dealing with different set of customers and durations of time, a commodity priced at Rs. X, may be sold to an affluent customer in summer, but the same price is reduced to Rs. X-20%, when no longer that affluent customer generates a demand in winter. Hence, a stock clearance sale is a perfect example to compliment this.
Regulatory Statutes/Rules and Compliances:
i. E-commerce has been brought under the ambit of the LMPCR vide its amendment rules dated 23rd June, 2017. The declarations under Rule 6(1) of the LMPCR have been made mandatory for all e-commerce websites to be made, except for the date of manufacture, on the digital and electronic media used for e-commerce transactions.
i. The responsibility of correctness of such declarations has been vested with the manufacturer, seller, dealer or importer and not on the e-commerce entity.
iii. A specific mention has been made in the rules that no person shall declare different MRPs (dual-MRP) on an identical pre-packaged commodity for different outlets.
iv. Among other declarations, e-commerce websites were mandatorily required to display the MRP inclusive of all taxes (only one MRP in accordance with the LMPCR, 2017).
The Rules shift the responsibility of compliance from the e-commerce entity to manufacturers and sellers, if the e-commerce entity fulfills the following conditions:
The function of the e-commerce entity is limited to providing access to a communication system over which information made available by the manufacturer or seller or dealer or importer is transmitted or temporarily stored or hosted;
The entity does not initiate the transmission or select the receiver of the transmission, or select or modify the information contained in the transmission; or
The entity observes due diligence while discharging its duty as an intermediary under the Information Technology Act, 2000, and also observes such other guidelines as the federal government may prescribe.
In Travel Agents Association of India v. Lufthansa German Airlines & Ors., the court completely upheld the dual pricing of the tickets, via the different channels, owing to the fact, that online sale doesn’t impose any additional charges of advertising and marketing, whereas the sale of tickets via agents, led to incurring of additional costs by the company, like payment of commission, advertising and marketing, the burden of which, ultimately fell on the shoulders of the consumer. The company was also free to decide, as to what channel of sale, it wanted to opt for.
Pricing & Labelling Regulations under FSSA, 2006
The Food Safety and Standards Authority of India (FSSAI) is an autonomous body established under the Ministry of Health & Welfare, Government of India. It was constituted under the Food Safety and Standards Act (FSSA), 2006, which is a consolidating statute in relation to food safety and regulation in India, and is responsible for the protection and promotion of public health through the regulation and supervision of food safety.
The Legal Metrology (Packaged Commodities) Rules, 2011 (LMPCR) were prescribed in order to regulate pre-packaged commodities. Under the said rules, pre-packaged commodities are required to comply with certain mandatory labeling requirements with respect to net quantity, MRP and Customer care information. With a view to encourage ease of business operations, amendments in packaged commodity rules were further notified in 2017, harmonizing the labeling provisions related to Food products with the Regulations as laid down under the Food Safety & Standard Regulations (FSSR), 2017.
Registration, Licensing and Labelling under FSSA:
Registration and Licensing
Section 31(1) & (2) of the FSSA mandates (Navneet Jindal v. Akash Restaurants and Foods) the licensing/registration of every Food Business Operator with the FSSAI. The procedure and requirements of such licensing/registration is regulated by the Food Safety & Standards (Licensing and Registration of Food Business) Regulations, 2011. A person not following this rule could be punished with imprisonment of 6 months or a penalty of upto Rs. 5 lacks.
Registration is meant for petty food manufacturers/businesses that include petty retailers, hawkers, itinerant vendors, a temporary stall holder, or a small/cottage scale industry with an annual turnover of upto Rs. 12 Lakhs, beyond which a license is to be acquired, depending on the size of the business operation.
B. Labelling Guidelines
Certain information pertaining to the pre-packaged food is mandatorily to be mentioned on the product label, including for multi-piece packages, such as the list of ingredients; additives; manufacturer’s details; date of manufacture and expiration; etc. In addition to these labelling guidelines, food products falling under the category of health supplements, Nutraceuticals, food for special dietary use, food for special medical purpose, functional food and novel food are also required to comply with FSSAI (Health Supplements, Nutraceuticals, Food for Special Dietary Use, Food for Special Medical Purpose, Functional Food and Novel Food) Regulations, 2016.
Although the interplay between the FSSA and Legal Metrology Act is smooth, some rules under LMPCR are not applicable to certain packages even if they satisfy all other criteria. These conditions are:
The package is sold by weight or measure and amounts to less than 10 ml or 10 grams (provided the product is not tobacco);
Package contains fast food items and is packed by hotels/restaurant/similar body;
Contains scheduled drugs and non-scheduled drugs covered by the Drugs (Price Control) Order, 1995;
Agricultural farm produce in packages above 50 kgs; or
A thread which is sold in the form of the coil to handloom weavers.
Moreover, the declarations required to me made under the LMPCR, in case of food items, have been aligned with those to be made under FSSAI, except for those three required under Legal Metrology viz. MRP, Net-quantity, and Consumer Care details.
Dual Pricing/MRP under FSSAI
In the case of Navneet Jindal v. Akash Restaurants and Foods, the Court explicitly declared dual/excess pricing to be illegal and licensing to be mandatory. In this regard, it observed that“the intention of legislature to enact the FSSA 2006 and the Legal Metrology (Packaged Commodities) Rules, 2011..Rule 18(2) makes it very clear that no retail dealer or any other person including manufacturer, packer, importer and whole-sale dealer shall make any sale of any commodity in packed form at a price exceeding the retail sale price thereof.” Thereby, since the eateries sold at a mall by the respondents in that case weren’t a hotel/restaurant, it was concurred that no commodity could be sold at a price exceeding the MRP or retail sale price, as defined under Rule 2(m) of the LMPCR, 2011, and that the respondents could not unethically thus derive the special benefits of service provided by restaurants. Printing of dual MRPs was thus deemed to be an unfair trade practice.
In the opinion of the Commission, the intention of the legislature from the very inception was to prohibit dual pricing and thereby to restrict pricing practices beyond the prescribed MRP. This intention deeply clarified by the amendment made in the Rules vide [no. GSR 629 (E) dated 23.06.2017 w.e.f. 01.01.2018] vide which Rule (2-A) as under:-
Unless otherwise specifically provided under any other law, no manufacturer or packer or importer shall declare different maximum retail prices on an identical pre-packaged commodity by adopting restrictive trade practices or unfair trade practices as defined under clause (nnn) or clause (r) of sub-section (1) of Section 2 of the Consumer Protection Act, 1986 (68 of 1986). “
Moreover, a direction was issued by the Court to ensure that no food business is being run without a license under the provisions of Food Safety and Standards (Licensing and Registration of Food Businesses), Regulations, 2011 and in case it is found that there is violation of the FSSA 2006 and Regulations, an appropriate action shall be taken under intimation to the Commission.
Herein, this article was sought to provide answers to a prominent issue of whether differential/dual pricing is a valid practice in furtherance of the Legal Metrology Act, 2009 and the Rules pertinent to it. It may be inferred from the above information and authorities that dual-pricing has neither been specifically prohibited nor held to be valid.
Identical commodities cannot be tagged with differential pricing at various locations, except when specifically permitted via the above judgments. Further, the registration of petty businesses has been mandated under the FSSA, 2006 and the rules corresponding to it, whereas a license is to be obtained depending upon the size of the business.
Dual pricing regulations have evolved through the LMPCR and various judgments, which is indicative of the fact that the intention of the legislature was to put a ban on dual pricing so as to protect the interests of the consumers. However, certain exemptions have been given to service providers such as restaurants and hotels via various judicial forums.
Finally, while noting that single-brand retailers have been statutorily exempted from making such declarations pertaining to MRPs, relying on the fundamental concept of MRP, e-commerce companies or retailers may charge any price which is not in excess of the declared MRP on the said packaged commodity.
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