While dealing with a batch of petitions that were 17 in number and which were concerned with an interfaith marriage contracted by the petitioners and who sought protection from the Court, the Allahabad High Court as recently as on November 18, 2021 in an extremely commendable, courageous, cogent, composed and convincing judgment titled Mayra alias Vaishnvi Vilas Shirshikar and another vs State of UP and others and 16 connected cases in Writ – C No. – 14896 of 2021 and 16 others while underscoring that Uniform Civil Code (UCC) is long overdue called upon the Central Government to implement the mandate of Article 44 of the Constitution of India [Uniform Civil Code]. It must be apprised here that the Single Judge Bench of Hon’ble Justice Suneet Kumar minced absolutely no words to candidly say that the issue of UCC, though Constitutional, rakes political overturns whenever raised or debated in the public domain and called for its implementation in the wake of a multiplicity of marriage and family laws in place. The Bench also underscored that uniform civil code is necessary for interfaith marriages. It is mandatorily required now. It also rightly called upon the Central Government to implement the mandate of Article 44.
To start with, the ball is set rolling in this learned, laudable, latest and landmark judgment authored by a Single Judge Bench of Justice Suneet Kumar by first and foremost putting forth in para 4 that, “Petitions are being decided finally at the admission stage, as per Rules, on the consent of the parties.”
While elaborating on the facts, the Bench then states in para 5 that, “The batch of petitions (17 in number), pertain to interfaith marriage contracted by the petitioners. Petitioners, herein, claim to be major and one of the party to the marriage has converted to the religion/faith of his/her partner. The petitioners apprehend threat to their life, liberty and wellbeing. Hence the instant writ petitions seeking protection.”
To put things in perspective, the Bench then envisages in para 6 that, “In the leading writ petition (14896 of 2021) (Marya @ Vaishnvi Vilas Shirshikar and another vs. State of U.P. and others), it is pleaded that both the petitioners are medical professionals. The first petitioner (Vaishnavi), a Hindu, after conversion accepted Islam, thereafter, she married the second petitioner according to Muslim customs. The petitioners have applied for registration of their marriage. It is specifically pleaded that since they belong to different faiths, they eloped and got married on their free will. They apprehend threat to their life and liberty as the contesting private respondent, father of the first petitioner, is opposing the interfaith marriage. The first petitioner converted to Islam on 5 January 2021 and the Nikahnama is dated 23 January 2021. It is also pleaded that the first petitioner belongs to Maharashtra and the second petitioner is from Bijnor, Uttar Pradesh. The conversion and marriage had taken place in the State of Maharashtra. The registration of the marriage has been applied before the Marriage Registrar/Officer at Bijnore.”
As we see, the Bench then points out in para 23 that, “The common thread running through all the petitions is that the petitioners have contracted interfaith marriage upon conversion; petitioners are major. It is pleaded that the conversion is on free will; some petitioners are highly qualified i.e. professionals, graduates and some appear to have not passed secondary examinations. They apprehend threat to their life and liberty at the hands of their parents, relatives and other family members in connivance of the State machinery. Some of the petitioners have approached the District Police seeking protection.”
Truth be told, the Bench then remarks in para 24 that, “The petitioners are before this Court, under Article 226 of the Constitution of India, seeking protection of their life, liberty and privacy guaranteed under Article 21, to live independently as man and woman without the interference of the private respondents.”
To be sure, the Bench then candidly concedes in para 55 that, “Having regard to the rigour of the enactments governing conversion, marriage and registration of marriage, the parties in the backdrop of the opposition of the family members, as is the case with the petitioners, are compelled to take recourse, either, under the Arya Marriage Validation Act or Muslim Personal Law (Shariyat) Application Act i.e. instant conversion followed by marriage. In other words, the legal system, particularly secular laws, governing marriage and registration, as it exists on date, compels and coerces a party to interfaith marriage to compulsorily convert. The conversion of faith may appear voluntary, but, at the same time it could in all probability be a case of going against one’s conscience, thus, unwillingly violating the freedom of conscience guaranteed to the individual under Article 25 of the Constitution.”
Quite significantly, the Bench then without mincing any words clearly states in para 56 that, “The stage has reached that the Parliament should intervene and examine, as to whether, the country requires multiplicity of marriage and registration laws or the parties to a marriage should be brought under the umbrella of single Family Code. Marriage is just an association of two persons, recognized by law. There is nothing ‘special’ about marriage to subject it under different laws for various communities, thus, erecting barriers in the free intermingling of the citizens. The petitioners, herein, cannot be hounded as criminals. Their crime, if any, is that they have succumbed to the dictates of their heart for each other.”
Needless to state, the Bench then specifies in para 57 that, “The issue of UCC, though Constitutional, rakes political overturns whenever raised or debated in public domain.”
As it turned out, the Bench then concedes in para 58 that, “In the midst of all this clamour, the Law Commission 21st Report dated August 31, 2018 struck a wary note. In its report, the Commission observed:
“While diversity of Indian culture can and should be celebrated, specific groups or weaker sections of the society must not be dis-privileged in the process. Resolution of this conflict does not mean abolition of difference. This Commission has, therefore, dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage ….. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy. (emphasis supplied).””
Having said this, the Bench then pulls back no punches to make it absolutely clear in para 59 that, “The single sentence/observation by the Commission that ‘uniform civil code is neither necessary nor desirable at this stage’ has been flagged by the opponents of UCC as their anchor sheet to oppose the enactment of UCC. The entire report of the Commission neither discusses nor points out the merit or demerit of UCC for the citizen. The observation is probably confined to the discrimination noted in the personal laws of various religious groups. On having detailed the discrimination with regard to family laws within the personal laws of Hindus, Muslims, Christians and Parsis, the Commission recommended their removal, in the first instance, to make the personal laws equitable with regard to marriage, divorce, guardianship, succession and adoption. In doing so, probably the ‘stage’ for enacting UCC would be facilitated, therefore, the Commission opined that the stage for enacting UCC has not reached. The desirability, and/or, non desirability of UCC, in the backdrop of differences/discrimination of various personal laws has not been considered by the Commission so as to keep the directive of Article 44 in abeyance. The bald observation of the Law Commission is of no assistance to the opponents of UCC.”
It cannot be glossed over that the Bench then remarks in para 60 that, “Supreme Court, very recently (2019), in Jose Paul Coutinho vs Maria Luiza (Civil Appeal 7378 of 2010 delivered on September 13, 2019), as against the view of the Commission, observed that:
“Whereas the founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard.””
It also has to be taken note of that the Bench then observes in para 61 that, “The observation of the Supreme Court that till date no action has been taken with regard to UCC comes within a year, in contradiction to the observation of the Law Commission. In other words, the Supreme Court desires that UCC should be enacted as ‘the stage’ has reached the citizens of the country.”
Be it noted, the Bench then minces no words to underscore most commendably in para 82 that, “The piecemeal attempts of Courts to bridge the gap between personal laws cannot take the place of a common civil code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case. The Court has its limitations and cannot embark the activist role of providing a civil code. The Parliament has to step in and initiate the process of enacting the UCC by appointing a committee, and/or, making a reference to the Law Commission (Shah Bano case).”
Briefly stated, the Bench then stipulates in para 92 that, “To put it in a nutshell, the HFC as a uniform civil code has integrated the citizens into an integrated and united Hindu citizenry, on terms that is equal and uniform, insofar as the law regulating family law is concerned. The impact of HFC on Hindu society has been phenomenal.”
It is worth noting that the Bench then observes in para 93 that, “The area that immediately demands attention of the Parliament is with regard to the interfaith relationships. The answer to regulating such relations is through legislative intervention by enacting the UCC. The Court since Shah Bano (1986) opined that enactment of UCC is necessary for the unification and national unity of the country. This has been reiterated by the Supreme Court time and again until recently. By national unity, the Court meant to say that by enacting UCC, the legislature would create an environment based on uniform law pertaining to family that would foster creation of an Indian citizenry where citizens of the country, irrespective of their religion, culture can interact on equal terms without the intervention of religious texts, priest, customs and dogmas of personal law.”
Most significantly and also most remarkably, what forms the cornerstone of this brief, brilliant, bold and balanced judgment is then enunciated in para 94 wherein it is held that, “There is no evidence of any official activity for framing a uniform civil code for the country. A belief seems to have gained ground that it is for the minority community to take a lead in the matter of reforms of their personal law. That has been the consistent official stand of the Government within the country and in international forums. A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.The Supreme Court speaking through Justice Kuldeep Singh [Sarla Mudgal Case (paragraph 35)] had humbly requested the Government through the Prime Minister to intervene and initiate the process of framing the UCC by appointing a committee, but after a lapse of so many decades nothing has been done.”
Equally significant and remarkable is what is then envisaged in para 95 wherein it is held that, “We have entered in the third decade of the twenty first century, the UCC is long due. It should be taken note of the fact that before HFC could see the light of the day the deliberations went on for 15 years. The Government, if decides to initiate the process by appointing a Committee/Commission for enacting the UCC, it would take considerable time. The process, therefore, should be initiated forthwith. This Court reiterates and calls upon the Government of India to initiate the process as the ‘stage’ has been reached. The UCC is a necessity and mandatorily required today. It cannot be made ‘purely voluntary’ as was observed by Dr. B.R. Ambedkar 75 years back, in view of the apprehension and fear expressed by the members of the minority community.”
Finally, the Bench then concludes by holding in para 107 that, “The writ petitions are allowed by passing the following orders:
(i) The State respondents and the private respondents are restrained from interfering with the life, liberty and privacy of the petitioners to live as man and woman;
(ii) The police authorities of the respective districts shall ensure the safety of the petitioners and provide protection to them, if demanded or needed;
(iii) The Marriage Registrar/Officer of respective districts are directed to forthwith register the marriage of the petitioners, without, insisting/awaiting approval of the competent district authority with regard to conversion of faith;
(iv) It will be open to the aggrieved party, in the event of fraud and misrepresentation, to take recourse of law, both – criminal and civil, including, annulment of marriage before the competent forum;
(v) The Government of India to consider the constitution of a Committee/Commission for implementing the mandate of Article 44, as directed by the Supreme Court;
(vi) The State Government to issue appropriate Government Order to the Marriage Registrar/Officer, District Authority, to comply and implement this order;
(vii) It will be open to the private respondents to seek modification/recall of this order in the event of being affected by the order;
(viii) The Registrar General of this Court is directed to supply copy of this order to –
(a) Department of Justice, Ministry of Law and Justice, Government of India, New Delhi.
(b) The Chief Secretary, Government of Uttar Pradesh, Lucknow.”
In conclusion, I cannot find one single reason to differ with what Hon’ble Justice Suneet Kumar has held so remarkably in this notable judgment. He has ably cited the relevant case laws and so also advanced valid reasons for holding that uniform civil code should be now ushered in promptly. He also made it clear that UCC is long due and it can’t be made voluntarily and is mandatorily required. He also made it crystal clear that government has to bring it, not any community or court. As we are nearing 75 years of independence, I can’t see any other way better to celebrate it other than to ensure that uniform civil code is enacted by the Centre at the earliest as we are a democratic country! What Hon’ble Justice Suneet Kumar has stated must be implemented by the Centre forthwith! No denying it!
Quite significantly, the Bench then without mincing any words clearly states in para 56 that, “The stage has reached that the Parliament should intervene and examine, as to whether, the country requires multiplicity of marriage and registration laws or the parties to a marriage should be brought under the umbrella of single Family Code. Marriage is just an association of two persons, recognized by law. There is nothing ‘special’ about marriage to subject it under different laws for various communities, thus, erecting barriers in the free intermingling of the citizens. The petitioners, herein, cannot be hounded as criminals. Their crime, if any, is that they have succumbed to the dictates of their heart for each other.”
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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.
AMENDMENT: UCC TO BE CHANGED FROM DPSP TO FUNDAMENTAL RIGHT
No one in our country, our political leaders or individuals, have ever concentrated their efforts towards defining the Uniform Civil Code, All we know is that some common law covering issues relating to marriage, succession and property is called Uniform Civil Code but what these laws would be is anyone’s guess. Now, what does our Constitution say about Uniform Civil Code? In article 44, our constitution clearly specifies the UCC: “The State shall endeavor to secure the citizen a Uniform Civil Code throughout the territory of India” The constitution is thus, very clear that unless a uniform civil code is followed, integration cannot be imbibed. However, the fact is that it is only a “directives principle” laid down in the constitution and as Article 37 of the Constitution itself makes clear, the directive principles “shall not be enforceable by any court” Nevertheless, they are “fundamental in the governance of the country”. This shows that although our constitution itself believes that a Uniform Civil Code should be implemented in some manner, it does not make this implementation mandatory and hence, it is time that an amendment should be made making UCC a mandatory action to be taken by the country.
WHY IS UCC IMPORTANT?
The human rights of women in India have always been associated with the personal laws which involve social institutions like marriage and family; Indeed, it is the personal laws which lay down the legal contours of the status of women in these social institutions. UCC
as envisaged under our Indian Constitution is time and again hailed to be the miraculous cure for all the social problems faced by the Indian women which has recently been reiterated in the case of Shayara Bano, wherein a 35 year old Muslim woman calls to ban the practice of triple talaq and declare it as unconstitutional. The practices of polygamy and halala have also been brought under the judicial scanner, This has once again raised the question that whether UCC will be the magic solution in weeding out such practices which are being considered as oppressive and anti-women not only by people belonging to other religion but even group of people belonging to the same religion?
The principle of UCC essentially involves the question of secularism. Secularism is a principle which needs to be analysed at great length. However, due to the different family laws, they are treated differently based on their religion. In my opinion, to some extent, this goes against the underlying principles of the Indian Constitution, also Due to the various family laws, there is an ambiguity amongst people, which leads to differentiation between them on the basis of their religion. Having a uniform civil code (UCC) will mean that all these different laws will be replaced by a new law which will be applicable for all, irrespective of their religion.
The country has already suffered a lot in the absence of a uniform code for all. It is rather a pity that the longest and most elaborately written constitution in the history of mankind, the Indian constitution is responsible for creation of erosion in society. The society has been fragmented in the name of religions, sects and sex and even at present, in India, there are different laws governing rights related to personal matters or laws like marriage, divorce, maintenance, adoption and inheritance for different communities. The laws governing inheritance or divorce among Hindus are thus, very different from those pertaining to Muslims or Christians and so on; In India, most family law is determined by the religion of the parties concerned Hindus, Sikhs, Jains and Buddhists come under Hindu law, whereas Muslims and Christians have their own laws. Further, The various divorce laws prevalent in India at present are also inexplicable and indifferent on some matter of dissent of marriage such as—Parsi law requires a three year period of separation and it could serve as a ground both for judicial separation or divorce, while Indian Divorce Act provides for a period of two year separation and makes it a ground for judicial separation only and it is to say that each law suffers from some deficiencies and identical matters show differences. Also, Only Hindus can adopt a child in the sense of affiliating him or her legally and confer on the child rights of property Others cannot adopt even if they want to do so. They have to take recourse to the Guardian and Wards Act, but guardianship over a child falls far short of conferring the legal status of a son on the ward.
National identity will be more secure and human resources much better utilised. It will add to the country’s growth and development; Indian Divorce Act, Christian Marriage Act, Hindu Succession Act , Shariat Act are unnecessary complications. A Uniform Civil Code embodies justice and there should be no compromise on it. One nation should have one civil code. It is now 70 years since the Constitution came into force. It is high time there was a decisive step towards a common civil code. If not now, then when?
JURISDICTION OF NCLT TO ADJUDICATE CONTRACTUAL DISPUTES DURING MORATORIUM: REVISITING THE POSITION
The Insolvency and Bankruptcy Code, 2016 has faced criticism over the past many years, but there still exists a debatable question on whether the code has been a successful outcome in the Country or not? Further, what makes this enactment better than the earlier one? In an opposed system, the Court acts as a referee between the prosecution and the defence and the whole system is a contest between the two events. The underlying principle is to find a solution between the research/investigation and the individual that ultimately decides the outcome. The old regime, the which existed prior to the enactment of the Code in 2016, changed after the enactment of the Code. Prior to December 2016, unsecured creditors mostly had two (2) approaches to getting better their claims; namely, lodging civil cases, or, initiating arbitration. All the answers to the aforesaid questions fall in the precise design and paraphernalia of the new code, which is a mixture of the government and judicial powers inside the shape of the National Company Law Tribunal (NCLT), making the legal process of insolvency observe an inquisitorial machine as was practised in continental Europe.
The plethora of contractual obligations being solved has been a distinctive issue. The powers that have been granted to the Courts have also been questioned especially with regard to the termination of contracts. In India, contracts are governed by the provisions under Indian Contract Act, 1872.
Recently in the case of TATA Consultancy Services Limited v. Vishal Ghisulal Jain, Resolution Professional, SK Wheels Private, the power of the National Company Law Tribunal (NCLT) was also challenged concerning contractual obligations, before the Hon’ble Supreme Court of India. The Supreme Court, in this case, observed that in all future instances falling under NCLT to adjudicate disputes which arise solely from or which relate to the insolvency of the Corporate Debtor cannot be invoked. Also further issuing a note stating that NCLT will have to be cautious of setting apart valid contractual terminations which might merely dilute the value of the corporate debtor, and not push it to its corporate dying by using distinctive features of it being the corporate debtor’s sole agreement. When it comes to balancing all the sectors altogether, it is necessary to know the limitations and powers of authorities. The rights of parties are important to be safeguarded. For the same reason, the powers and jurisdiction of the NCLT to adjudicate disputes under Sec. 60(5) (c) of the Code, which is an authority created by the Code itself, was questioned in the TCS Case, so that a clear picture can be drawn.
ROLE OF NATIONAL COMPANY LAW TRIBUNAL (NCLT) IN CONTRACTUAL DISPUTES
NCLT came into existence via statutes and was the outcome of the Eradi Committee, the powers of its sporting events are the ones that might be conferred upon it via regulation, which includes the IBC. The NCLT has been constituted underneath Section 408 of the Companies Act, 2013. It discharges such powers and features as are, or can be, conferred on it with the useful resource of or beneath this Act or some other law meanwhile in force. The NCLT has territorial jurisdiction over the vicinity where the registered workplace of the corporate person is located. NCLT is the adjudicating authority, with regards to insolvency decisions and liquidation for corporate humans inclusive of corporate borrowers and personal guarantors via the virtue of section 60(1) of the Code. The institutional framework under the Code pondered the establishment of a single umbrella platform to address subjects of insolvency and bankruptcy, which was earlier disbursed throughout a plethora of areas. In the absence of a court exercising jurisdiction over subjects referring to insolvency, the corporate debtor could file and/or shield a couple of complaints before NCLT.
SECTION 60(5)(C): THE RESIDUARY JURISDICTION OF THE NCLT
The residuary jurisdiction of the NCLT under Section 60(5)(c) of the Code, provides extensive discretion to adjudicate questions of regulation or fact check when it comes to the proceedings under the Code. The residuary jurisdiction conferred by the Code may extend to matters which aren’t in particular enumerated beneath the legislation. The jurisdiction of NCLT underneath Section 60(5) of the Code is normally seen as a comprehensive recourse to all problems regarding a corporate debtor undergoing company insolvency decision procedure (“CIRP”) or liquidation. In many cases, in recent years the Supreme Court has had the occasion to opine at the scope and volume of NCLT’s jurisdiction underneath Section 60(5) such as in the cases of M/s Embassy Property Developments Pvt. the Ltd. V. State of Karnataka, Gujarat Urja Vikas Nigam Limited v. Amit Kumar Gupta. Further, the Hon’ble Supreme Court in the recent judgment of TCS vs. Vikas Ghisulal Jain, was pleased to observe and lay down that the jurisdiction of NCLT under Sec. 60(5) (c) of the Code, cannot be invoked in subjects where termination may additionally take area on grounds unrelated to the insolvency of the corporate debtor. Further, it cannot even be invoked in the event of a valid termination of a contract based totally on an ipso-factoclause, if such termination does not have the impact of making positive the demise of the corporate debtor. Hence, the aforesaid judgment of the Supreme Court clarifies and fortifies the principle of law, that, while a residuary jurisdiction under a Code/Statute confers the Authorities/Tribunals/Courts/Forums under the Code/Statute with wide powers but then its jurisdiction has to be restricted to the scope and ambit of the statute or the effect of such dispute on the process initiated under the Code in this case and not beyond. Powers under Section 60(5) (c) of the Code, cannot be read as a sweeping power to adjudicate disputes which are in the realm of public law or beyond the provisions of the Code.
ANALYSIS OF THE JUDGMENT OF THE HON’BLE SUPREME COURT IN THE JUDGMENT OF TATA CONSULTANCY SERVICES LIMITED VS. VISHAL GHISULAL JAIN (RP) SK WHEELS PVT. LIMITED.
The judgment of the Hon’ble Supreme Court in Tata Consultancy Services Ltd (judgment dated 23.11.2021) clarifies the power of NCLT in relation to contractual obligations. In the present case, application was filed under Section 60(5)(c) of IBC, 2016, to quash a termination notice of a contract, as it was contended to barred during the moratorium period under Sec. 14 of the Code. Hon’ble NCLT was pleased to grant an interim stay on the termination of the contract and said interim order was upheld by Hon’ble NCLAT and thereafter the appellant knocked the doors of the Hon’ble Supreme Court to clarify the position of law under Sec. 60(5) (c) of the Code.
The issues that fell for consideration of the Hon’ble Supreme Court, were whether the NCLT has the power to adjudicate upon such contractual matters under Sec. 60(5) (c) of the Code and further the power of NCLT to grant an ad-interim stay while adjudicating such issue(s).
Heavy reliance was placed by the respondent on the judgment of the Supreme Court in the case of Gujarat Urja Vikas. In that case, NCLT stayed the termination of its power purchase agreement, which had triggered on the ground of insolvency, which was upheld by the Hon’ble Supreme Court.
The Supreme Court in reference to the present case stated that the agreement in question turned into termination via a third party based totally on an ipso facto clause. The reality of insolvency itself constituted an occasion of default. Hence in relation to the present case, the Supreme Court, proceeded to factually distinguish its judgment in Gujarat Urja Vikas and clarified that NCLT, under Sec. 60(5)(c) of the Code, has jurisdiction to adjudicate disputes, which relate to the insolvency of the corporate debtor and that there must be a direct co-relation and nexus with the insolvency of the corporate debtor. Thus, the residuary jurisdiction of the NCLT cannot be invoked if the termination of a contract is based on any other ground which is not related to insolvency of the corporate debtor.
Hence, in view of the aforesaid, the Hon’ble Supreme Court in the present case (TCS) ruled that the NCLT had exceed its jurisdiction and that the interim order passed by NCLT and upheld by NCLAT was bad in law and therefore was set-aside. Further, a word of caution was issued and laid down by the Hon’ble Supreme Court to the NCLTs and NCLAT with respect to using the residuary powers under Sec 60(5)(c) of the Code, with respect to interference with a party’s contractual right to terminate a contract, wherein it was pleased to observe and lay down that; “Even if the contractual dispute arises in relation to the insolvency, a party can be restrained from terminating the contract only if it is central to the success of the CIRP. Crucially, the termination of the contract should result in the corporate death of the Corporate Debtor.” (para 28).
The present case has again unfolded the jurisdiction and power of the apex court. The apex court holds the authority to determine the power of lower bodies. It is necessary to keep a check on such authorities in order to keep the work going authentically. The present case also sets an example that the bodies should be bound to exercise their jurisdiction in a particular manner. This case holds an important place in the development of jurisprudence under the Code, as the jurisdiction and power of NCLT have been clarified by the Supreme Court, in relation to interference by the NCLTs under Sec. 60(5) (c) of the Code to stay termination of the said contract pursuant to the triggering of the CIR process and thereby carving out and laying down strict contours on the jurisdiction envisaged under the residuary powers/ jurisdiction under Sec. 60(5)(C) of the Code.
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