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UP must have at least 10 High Court benches



“When finances are needed for the purpose of improving the judicial system at the lower levels, there is reluctance to make such finances available. We do not seem to realise that it is subordinate courts which form the basis of the pyramid of justice and unless the base is strengthened, the pyramid is bound to crumble. It is often forgotten that the contact of the common man with the justice system occurs only at the level of the subordinate courts, he has rarely occasion to go to the High Court and therefore, if we want to inspire confidence in the common man that he can get justice, it is imperative to strengthen the subordinate judiciary.”

Shri PN Bhagwati , Former CJI and longest serving Supreme Court Judge for 13 years

Will creation of more Benches not help in strengthening it further? At the outset , let me be categorical in stating that undoubtedly setting up of high court benches in needy places like West UP will not only be a very positive step strengthening our lower judiciary but also help in reducing the huge backlog of pending cases to a great extent !

Can anyone deny that the 18th Law Commission in its 230th report noted : “In almost every High Court, there is huge pendency of cases and the present strength of the judges can hardly be said to be sufficient to cope with the alarming situation. It is also necessary that the work of the High Courts is decentralized, that is, more Benches are established in all States. If there is manifold increase in the strength of the judges and the staff, all cannot be housed in one campus. Therefore, the establishment of new Benches is necessary. It is also in the interest of the litigants. The Benches should be so established that a litigant is not required to travel long. It is true that the new establishments will require money, but it is necessary as a development measure, particularly, when efforts are being made for all-round development of the country. Therefore, the money should not be a problem. We have to watch and protect the interest of the litigants. We must always keep in mind that the existence of judges and advocates is because of the litigants and they are there to serve their cause only. Sometimes, some advocates object to creation of new Benches and selection of new sites for construction of new buildings. But they raise objections in their personal, limited interest. Creation of new Benches is certainly beneficial for the litigants and the lawyers and a beginning has to be made somewhere. A speedy trial is not only required to give quick justice but it is also an integral part of the fundamental right of life, personal liberty, as envisaged in article 21 of the Constitution. Article 39A of the Constitution provides for equal justice and free legal aid. The said article obligates the State to promote justice on a basis of equal opportunity and, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities?”

What can be a bigger injustice for the common man of West UP than the harsh and lamentable fact that the High Courts of Himachal Pradesh, Uttarakhand, Haryana, Punjab, Delhi and above all even Lahore High Court are nearer to West UP in comparison to Allahabad High Court? Who suffers as a result? It is the common man who is the worst affected. Can we ignore the naked truth that in the whole of UP, 16 lakh cases are pending out of which 11 lakh cases are pertaining to West UP? Does this not necessitate the creation of a Bench in West UP?

Let me begin on a very bitter note by pointing out that crime against women are multiplying most rapidly in UP and this is most felt in West UP which is the worst affected of all the regions of UP. Throwing of acid on woman or rape, gang rape followed by lynching, molestation and all other forms of crimes against women and girls are openly being perpetrated in West UP especially as also in UP which is certainly most concerning! Even a 100 year old woman was attempted to be raped in Meerut who later succumbed to her injuries. While PM Narendra Modi was about to address a rally at Meerut during elections we saw how a woman was raped by a doctor and an attendant right in the hospital itself! Woman is not safe anywhere in West UP! We also saw how a woman was gang raped in Hapur and she then burnt herself in frustration as no strict action was being taken against the culprits?

Why talk about women alone? Even men are not safe here! Policemen themselves are not safe here! Even children are not safe. We just saw how three children were mercilessly killed in Bulandshahr by fearless criminals! Criminals are killing whomever they want with impunity and then we see how they easily manage to get bail and the criminal cases keep pending interminably! This must stop forthwith if a semblance of law and order is to be restored in UP! But how? By ensuring that cases against criminals are decided at the earliest.

How can this be ensured that cases are decided at the earliest against criminals? By setting up at least 10 high court benches in Meerut, Agra, Kanpur, Jhansi, Gorakhpur, Varanasi, Mahoba, Sultanpur, Aligarh, Badaun, Mathura or at any other place which is in desperate need of the same! This cannot be allowed to fester indefinitely as we have already lost a lot of precious time! Why peaceful states like Karnataka, Maharashtra, Assam, Madhya Pradesh among others have more high court benches than UP which tops among all the states in pending cases?

What an unbeatable irony that Allahabad High Court tops with maximum pending cases at 10 lakh and still it has least high court benches – only one at Lucknow for just 8 districts! No other High Court in India has 10 lakh or 9 lakh or 8 lakh or 7 lakh or 6 lakh or 5 lakh or 4 lakh or even 3 lakh cases pending and still some of them have got 3 high court benches like Karnataka, Maharashtra and others but UP has just one bench only! Why this step-motherly treatment for UP?

We are all seeing how earlier Saharanpur was burning after violent clashes erupted between Dalits and Thakurs that left many dead and many injured! We all saw how BSP leader Munawwar Hasan Rana and his 6 family members were brutally killed in Muzaffarnagar! Many more leaders have been killed since then in West UP and also in other parts of UP! We all know how Meerut and Agra top in the number of incidents of communal clashes and how everyday the local newspapers is flooded with cases of murders, rapes and other heinous crimes! The situation in communally sensitive districts like Aligarh and Kanpur in West UP among others is no better! Still no effort is being made to establish a high court bench here!

This West UP with 26 districts has an area of 98,000 square km which is more than the area of many other states and has a population of more than 9 crore which is more than any other state except Maharashtra and Bihar. Here too areawise West UP is bigger than Bihar which has an area of 94,000 square km. Yet no bench!

It is most hurting to read that dacoits are fearlessly killing innocent people on highway as happened few years back and then in front of their men had the guts to gang rape the 4 women accompanying them just a kilometer away from the Yamuna Expressway in Greater Noida and when one man resisted he was shot in the chest from point blank range who died and others were thrashed badly! This shows the complete lawlessness in West UP! This clearly demonstrates that women are not safe even when accompanied with their entire family! Such incidents keep happening on a regular basis in West UP especially! 2 minor girls were gangraped recently in Moradabad! Criminals fully know that West UP has no high court bench and Allahabad High Court tops in the number of pending cases about 10 lakh pending cases and it would take ages before the cases are finally decided as they keep on lingering interminably and by the time they are decided they would die a natural death and victims would suffer endlessly travelling again and again 800-900 km away from West UP to Allahabad as West UP with 26 districts have no high court bench! This must change now if the fear of law is to be ingrained permanently in the minds of such criminals!

We all know fully well that how a similar incident had triggered huge protests in July 2016 when a mother and daughter were gangraped in Bulandshahar! The then newly appointed Chief Justice of Allahabad High Court Justice Dilip Babasaheb Bhonsle rightly lashed out at the law and order situation in UP and said that in Maharashtra from where he hails women or girl venture out in night anywhere yet never such incidents of gang rape occur. On the contrary, in UP especially in West UP we repeatedly keep hearing incidents of rape, gang rape followed by burning as we saw recently in Bulandshahr and also in Hathras!

Please read concluding on thedailyguardian.com

Still you see the irony! Maharashtra has 3 high court benches at Nagpur, Aurangabad and Panaji and now fourth one created at Kolhapur for just 6 districts apart from the high court at Mumbai but West UP has not even a single bench of high court! In UP itself both high court at Allahabad and a single bench at Lucknow are located so close to each other with a distance of just about 150-200 km. Why not a single bench of high court was created in West UP even though Justice Jaswant Singh Commission appointed by former PM late Mrs Indira Gandhi very strongly recommended 3 benches for West UP and hilly areas adjoining it (which now form a separate state – Uttarakhand) at Agra, Nainital and Dehradun? Why women victims have to travel so far away to Allahabad which is about 700-800 km away from most of the districts of West UP and be made to suffer so much for the inordinate delay and made to bear the huge expenses in fighting the case for her right in making sure that sexual offenders are sent behind bars? Uttarakhand whose population in 2000 was about 88 lakh got justice when a separate high court was created for it but what about more than 9 crore people of West UP – 19 years later not even a bench has been created leave alone high court!

It is most shocking and disgusting to see that Uttar Pradesh which is the most populated state in India has least high court benches – only one and that too just 150-200 km away from Allahabad where the high court is located! Why no high court bench for 26 districts of West UP which are about 700-800 km away from Allahabad where high court is located ? Why no high court bench for Bundelkhand region as the districts there too are very far away from Allahabad? Why no high court bench at Gorakhpur to which the present Chief Minister Yogi Adityanath belongs? Interestingly enough, Yogi Adityanath as MP had raised the bench issue in Parliament very vociferously a long time back!

Why when UP which is among the largest States, has maximum population – more than 23 crore as CM Yogi Adityanath keeps pointing out every now and then, maximum districts – 75, maximum constituencies, maximum tehsils – 350, maximum MPs – 80, maximum MLAs – 404, maximum PM including Narendra Modi, maximum pending cases – more than 10 lakh and here too West UP accounts for more than half of pending cases as noted by Justice Jaswant Commission about 57%, maximum Judges which earlier was 160 and increased to 200 in high court, maximum vacancies of Judges – 75 in high court, maximum poverty, maximum villages more than one lakh as opposed to other states who have not more than few thousands at the most, maximum cities more than 700, maximum fake encounters killings, custody killings, custodial tortures, maximum dowry cases, maximum rape and gang rape cases, maximum acid throwing cases, maximum bride burning cases, maximum cases of human rights violations, maximum undertrials, maximum cases of crime, loot, arson and riots and here too West UP tops with Saharanpur riots, Meerut riots, Muzaffarnagar riots tarnishing our international reputation to the extent that former UN Secretary General Ban ki Moon termed UP as “crime and rape capital” of India and what not yet Centre is not prepared to create even a single bench for not just West UP but entire UP? Why when UP sends maximum MPs to Lok Sabha – 80, maximum MPs to Rajya Sabha – 30, maximum MLAs to State Assembly – 404 MLAs and maximum members to State Legislative Council – 100 MLAs and yet has least benches – only one and that too just 200 km away from Allahabad at Lucknow?

It is so shocking and disgusting to see that West UP is fast becoming the epicenter of all kinds of crimes, rapes, gangrapes, brutal murders, mass murders, dacoity, robbery and what not still no High Court Bench being created! What is even more shocking to see is that all political parties barring Samajwadi Party have openly espoused the creation of a high court bench in West UP but still even after seventy four years of independence we see no sign of it happening anytime soon! What is most shocking is that inspite of West UP accounting for more than half of the crime cases all over UP, not a single high court bench has been created here since 1947 till now in 2021 even though a high court bench was created at Lucknow which is just about 150-200 km away from Allahabad way back on July 1, 1948! What an unbeatable irony that Allahabad High Court tops with maximum pending cases at 10 lakh and still it has least high court benches – only one at Lucknow for just 12 districts!

There is zero fear of law in West UP and UP! How long will the government keep tom-tomming the same old argument on lawlessness in West UP and UP? Why no strict action is taken against culprits?

Such criminals know fully well that Allahabad High Court has the highest number of pending cases – about 10 lakh as compared to other states where the number of pending cases don’t exceed 1 lakh or at the most 2 lakhs cases! They know that they will easily get bail and by the time cases are finally decided they will die a natural death. This must change which is possible only if at least in my opinion 10 more benches of high court are created in different parts of UP! Such poor, hapless women and girls, for God sake, need more high court benches and not more temples!

But see the unpalatable irony! Politicians are not prepared to create even a single bench anywhere in UP leave alone West UP! It is a matter of great shame that Allahabad High Court which in 2016 on March 17 had completed its 150th year of establishment has the least benches in India – only one at Lucknow and that too just about 150-200 km away from Allahabad! Why no high court bench in West UP at Meerut or Agra or at Jhansi or some other place? We all know that Allahabad High Court is the biggest court in whole of Asia and also the oldest court! Still why it has least benches in India only one which is so close to Allahabad? If Lucknow is capital of UP, Bhopal is also capital of MP, Bhubaneshwar is also capital of Odisha, Dispur which is capital of Assam, Bhubaneshwar which is capital of Odisha and so is the case with many other big cities which neither have high court nor even a bench!

Why politicians have ensured that a high court bench was created for Lucknow about 69 years back on July 1, 1948 but not at any other place especially in West UP, Bundelkhand and Gorakhpur even 73 years later? Why Centre decided to create 2 more benches for Karnataka at Dharwad and Gulbarga for just 4 and 8 districts but not a single for West UP with 26 districts? Why 230th report of Law Commission submitted in 2009 which recommended creation of more benches has only been implemented in Karnataka alone and not in UP, Bihar or other big states? Why Karnataka has just 6 lakh population which is less than the population of even West UP which has 9 crore population, has less than 2 lakh pending cases as compared to UP which has 10 lakh pending cases still 2 more high court benches created for it but not a single more for UP?

When Dr Sampoornanand who was the UP CM way back in 1955 very strongly recommended a high court bench for West UP at Meerut, Jawaharlal Nehru refused as he felt that one bench at Lucknow was enough. The number of pending cases way back in 1948 were not much but see the situation now! West UP now accounts for more than half of the pending cases of total pending cases of UP and UP tops the maximum pending cases state list with 10 lakh pending cases still it has just one high court bench as no more benches were created in UP since 1948! Other states like Karnataka and Maharashtra don’t have 10 lakh or 9 lakh or 8 lakh or 7 lakh or 6 lakh or 5 lakh or 4 lakh or 3 lakh or even 2 lakh cases still they have got 3 high court benches but UP has only one! Is this fair? Why West UP with 9 crore population which has more than 20 districts also has not even a single Bench leave alone having High Court and 3 Benches as we see in case of Karnataka? Why this raw discrimination? Why for 4 and 8 districts in Karnataka are Benches created at Dharwad and Gulbarga but for more than 20 districts of West UP not a single High Court Bench is created till now? Centre cannot maintain a deafening silence on it all the time!

Why not a single bench of high court was created in West UP even though Justice Jaswant Singh Commission appointed by former PM late Mrs Indira Gandhi very strongly recommended 3 benches for UP and hilly areas adjoining it which now form a separate state – Uttarakhand at Agra in West UP, Nainital and Dehradun? Why women victims have to travel so far away to Allahabad which is about 700-800 km away from most of the districts of West UP and be made to suffer so much for the inordinate delay and made to bear the huge expenses in fighting the case for her right in making sure that sexual offenders are sent behind bars?

Eminent and senior Supreme Court lawyer and former Law Minister Kapil Sibal himself had mentioned that he had recommended a high court bench at Meerut but the then state government led by Akhilesh Yadav refused to endorse it and this was candidly disclosed by former Union Minister RPN Singh himself! It was way back in 1955 that Dr Sampoornanand had recommended a high court bench for West UP at Meerut but even after 65 years we see no bench as Centre had refused then! Similarly many other UP CM had also recommended the creation of a high court bench here but to no avail! Why? Our former PM Atal Bihari Vajpayee had himself raised the demand for a high court bench for West UP in 1986 inside Parliament but even after more than 33 years we are nowhere!

Why can’t 10 high court benches be created for UP which has 75 districts which means at least one bench for 7 to 8 districts? Why 2 more high court benches for a peaceful state like Karnataka and not a single more for a lawless state like UP? What is stopping politicians from creating more benches in UP? They must answer! Lower courts in UP has more than 60 lakh cases pending and still we see that there is only one high court bench in UP and that too very near to Allahabad! Why? UP needs more benches and not anti-Romeo squads! UP needs more High Court Benches so that people of all religion benefit equally and not more temples! UP CM Yogi Adityanath had himself demanded a High Court Bench at Gorakhpur in 1999 but more than 21 years later even as he is on verge of completing 5 years in office we still see no more Bench not just in West UP but even in Gorakhpur or any other region! This is the real rub!

Sanjeev Sirohi, Advocate,

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Legally Speaking

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.


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.

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Legally Speaking

Cyber crime regulation

Khushbu Jain




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.


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.


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?


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.

International Dimensions:

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.


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.


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.


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)

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Legally Speaking

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.

Yamini Jain



1. Introduction

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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Legally Speaking




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.


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?

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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.


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.


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.


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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Intolerance and the search for identity: A history of communal tensions in Bangladesh



“For our language many have died Drawn from the arms of our mother But down the road smeared with their blood I hope freedom will come to this land The simple language of a simple people Will meet the demands of this our land”

-Sufia Kamal

The world today has been gifted with the growing sensitization towards religious pluralism that situates itself between the two corridors of religious tolerance and the identification of minority rights. The belief system of one religion is to be accommodated within the structures of a majoritarian religion in order to bring harmony and peace to a country. There are however greater complexities as the dimensions of the political narratives also pose a serious threat sometimes to a country that is polarized by religious hypertrophy.

Bangladesh is celebrating its 50th year of liberation from Pakistani oppression this year. Though very young, this South Asian country has been able to establish itself as a liberal democratic nation. Recognition of Bangladesh as a developing nation from being underdeveloped endorses its effort to make it a functioning democracy in the map of South Asia. It has displayed remarkable progress in public health, education, women empowerment, public administration, overall human development index among other things. However, contrarily, its policies towards securing free religious practice for its citizens are under careful watch by the international communities. Violence against religious minorities is tarnishing the efforts of Bangladeshi liberal leadership for more than the last three decades, resulting in a sharp decline in the religious minority population from 30% in the year 1947 to 9% now. 

Bangladesh, as it is known today, was known as East Bengal during British Rule, then East Pakistan under the Pakistani Regime from 1947 till 1971. Irrespective of two major religious communities i.e. Hindus and Muslims, the population is known as Bengalee primarily based on their culture and linguistic equivalences. Undivided Bengal that encapsulates the area consisting of West Bengal and Bangladesh now has a long history of a tolerant progressive human society. There is hardly any record of religious conflicts between these two communities till the middle of the twentieth century when the demand for a separate nation on the religious line began to gain momentum. At the end of the British rule, the two major religious communities i.e. Hindus and Muslims failed to retain the tolerant fabric of Bengali society based on religious harmony for centuries.

The Constitution of Bangladesh was adopted on 4th November 1972 and came to effect on 16th December 1972. Bangladesh was the first country in South Asia to specifically use secularism in its constitution followed by India in 42nd amendment Act in 1976. A decisive change was to ban religious-based political part, Jamaat-e-Islami that opposed Bangladesh’s independence and faced allegations of involvement in the 1971 Bangladesh genocide that was initiated by Pakistani military on all Bengali’s of East Bengal. The Jamaat-e-Islami supported the Pakistani Army During the Awami League’s rule, the Opposition Leader and leftwing cleric Maulana Bhashani talked about a “Muslim Bengal” as opposed to the League’s secular Bengali platform.

The first religious clash between Hindus and Muslims took place in Calcutta, the capital city of undivided Bengal, in 1946 (Aug 16 -Aug 19), resulting in an estimated loss of 10,000 lives of both communities, also known as the Great Calcutta Killing. This is the beginning of a dark chapter of communal disharmony. This was followed by the Noakhali Riots of 1946 (November- December) where the death toll touched around 5000.

In the year 1947, Pakistan was carved out of India as a separate country with a Muslim major population.  East Bengal became East Pakistan as it was in the eastern part of Pakistan. Religious intolerance has however grown in Bangladesh over these four decades and the nation has further away from the harmonious grounds of anti-fundamentalism that Sheikh Mujibur Rahman had gifted to the country.

Some of the major incidents of violence against Hindus are Dhaka Riots of 1948, Nacholi Massacre (Rajshahi District), Dhaka Riots, Barisal Riots, Chittagong Riots, Rajshahi Riots -1962, East Pakistan Riot- 1964. Then in the year 1971 during the war of independence against the Pakistani Army, an estimated 3 million people were killed, 200000 women were raped and the majority of these casualties were Hindus.

On the 16th December 1971, 93000 Pakistani Army Surrenders to the Joint forces of Indian Army and Bangladesh Mukti Bahini and Bangladesh becomes an independent nation in south Asia

The country entered the comity of nations under Sheikh Mujibur Rehman, also known as the Bongobondhu or the friend of the Nation. The religious intolerance was given away and there was a greater attempt at protecting the interests of the religious minorities with his Awami League that took up the leadership in the country. But there was a decline in the subjective efforts with the murder of Bangabandhu on the 15th August, 1975, leading to a coup by radical army officers that over the years have given rise to further coup and counter coups, resulting in transfer of power to Major Ziaur Rehman in 1977.

The issue largely resulted from the fact that Ziaur Rehman uplifted the ban on the religious based political party and as a result of such an attempt the Constitution incorporated ideas of social justice from Islamic religious order, removing the tenets of secularism from the Constitution- Bismillahir Ram Rahim or absolute trust and faith in the almighty Allah shall be basis of all actions. Islam has thus been mentioned at least twice in this Constitution.

From 1975 till 1988, there were no such noticeable large scale attacks on Hindus, but it continued at local levels across the country which failed to get attention of the international communities. In 1988 , the then President of Bangladesh , Hussain Mohammad Ershad declared Islam as the National Religion of Bangladesh, also called the State Religion. From 1988 the other two religious groups the Buddhist and the Christian also began to be the target of the majority Muslim communities including Hindus. Though the attacks are being carried out in a routinely fashion , some of the major incidents of atrocities which attracted international attention  are described here, in 1989 ,an estimated 400 Hindu temples were destroyed across Bangladesh  in reaction to the laying of foundation stone for Ram Temple in the close vicinity of Babri Mosque in Ayodhya, India. In 1991 attacks were carried out in Dhaka, Chittagang, Jessore, Narail, Gaibandha, Mymensingh, Sunamganj and Sylhet. In 1992, at the aftermath of Demolition of Babri Mosque in India, 11 temples were destroyed among many killings, rapes  and destruction of property of the Hindus.

Last few years the attacks increased many folds, according to Ain O Salish Kendra (ASK), a human rights body in Bangladesh, from September 2013 till October 2021, the total number of attacks on religious minorities in Bangladesh were 3710, and from 1993 till 2006 the number was 22 . This increasing act of atrocities is contributing to the gradual decline of a religious minority population in Bangladesh, it was 31% in 1947 and now it stands a meager 9%. According to Dr Abul Barkat, Professor of Dhaka University, 11.3 million Hindus fled Bangladesh since 1947.

Communalism is a pervasive phenomenon in the public life of Bangladesh and communal riots have the ugliest expression. This is very similar to the condition in India. Communal riots have two faces – violence and confrontation. Every reason for communal riot appears to be superficial and trivial; though deep within political reasons are rooted. Communal riots in East Bengal are rarely due to religious animosity but that is taken advantage of by the politicians to meet their political and economic interest.

Between January 1972 and January 1975, Bangladesh enjoyed a parliamentary government but then it was a military dictatorship. In 1977, secularism was removed by a Martial law directed during the military dictatorship of Ziaur Rahman. The 5th amendment to the constitution in 1979, that had allowed religious based politics and legitimized the post -1975 regimes after a coup toppled the country’s post-independence government. In 1988, the Parliament of Bangladesh declared Islam as the state religion during the presidency of Hussain Muhammad Ershad.

After the restoration of democracy in 1990, the Bangladesh Nationalist Party (BNP) and Awami League (AL) governments retained Islam as the state religion. At the end of BNP’s 2001-2006 term, the Awami League questioned the appointment of the new Chief Advisor. Awami supporter led protests and violence popularly known as logi boitha movement , which resulted in 40 deaths and 100s(hundreds) of injuries in the first month .On that day Awami League activists severely beat and killed 3 activists of Jamat e Islami in Paltan in front of the TV camera. On 11th January 2007, Chief Advisor Iajuddin Ahmed announced a state of Emergency in Bangladesh. On 12th January 2007, with military backing, the former Bangladesh Bank Governor Fakhruddin Ahmed, who had worked for the World Bank was now sworn in as the Chief Advisor.

Hefajat-e-Islam (HeI) claims it is apolitical, as they do not participate in electoral politics, but they are at the forefront of accumulating religious capital and have emerged as important players in Bangladeshi politics. Hefajat-e-Islam, which literally means ‘protector of Islam’, was established in 2010 as a reaction to the Draft National Women’s Development Policy Bill, proposed by the military-backed caretaker government in 2008.

In 2010, the Bangladesh Supreme Court ruled that the removal of secularism in 1977 was illegal because it was done by an unconstitutional martial law regime. The principle of secularism now co-exists with the state religion. The apex court division on Feb 2nd again this year had revised and declared illegal the 5th amendment. In 2011 finally this Women’s Bill was supported.

In 2011, HeI proved its street power by its student march and 13 charter petitions to the government. This led to a violent bloodshed of the students who had partaken. The Government realized their power in the Shah Bagh protests. In recent times, the extreme street power of these parties is forcing the government to dunk their secular image next into a more Islamic State.

This coming together of AL and HeI though was a crucial factor that helped in the AL’s 2014 and 2018 electoral victories. The death of the supremo, Shafi, has brought the power tussle for succession between Anas Madani, Shafi’s son, and Junaid Babunagori, out in the open. In 2019, the rivalry between senior Nayeb–e–Ameer, Mohibullah Babunagari, and Anas Madani, came to the fore.

After the death of Allama Shah Ahmed Shafi, the Amir of HeI on September 18, 2020, the takeover of the group by radical leaders like Junaid Babunagori, who are opposed to the government, reflects the limitation of the latter’s appeasement policy(Meaning is not clear). While the Ulemas may not be electorally successful, their street power and ideological commitment to their interpretation of religion are swiftly pressing the secularism.

Bangladesh State Minister for Information Murad Hussain has stated that Bangladesh is(has) secular constitution proposed by the Father of the nation, Mujibur Rahman. The judgment came in response to why compelling women to wear religious attire should not be declared illegal. In August this year it was reported that a women’s college in northwestern Natore issued a directive prohibiting students from entering the campus without burqas, also barred them from sport and cultural activities. The high court found the college guilty based on the fact that the 5th amendment is null and void and Bangladesh is a secular nation.

 From October 13th to 19th, the riots in Bangladesh defeated the entire fabric of the secularism that the Constitution of Bangladesh abides by. The reports of casualties and deaths, including demolishing of around 80 temples spanning across regions like Cumilla, Chandpur, Noakhali, Chattogram, Bandarban, Cox’s Bazar, Narsingdi and Gazipur only shows that there needs to be one social disassociation to bring around the religious tensions in the region. What is even strange is that the Charter of Medina based on which the Constitution of Bangladesh pulls its resources hardly justifies the secular stand stated in other parts of the Constitution of Bangladesh. Places like Rangpur saw the burning down of around two dozen of hindu houses over a protesting post by a Hindu man over the ongoing conditions of the minorities and even the United Nations Resident Coordinator Mia Seppo condemned the attacks over Twitter. It is only to be seen how the Bangladesh administration deals with the person Iqbal Hossain, identified as the one who placed the Holy Quran in the feet of the Goddess Durga in the Pandal that sparked the entire saga of violence in Bangladesh.

However the gagging of the bloggers, leaders and protestors who are against the heinous communal riots is another side to the acting administration and their public policy and places the citizens in a state of confusion as to the real mode of action in such a state of affairs. The external response from other countries is negligible as India promised no intrusion to settle internal disputes and China is in the grip of declaring another lockdown. This tension of mildness and appeasement since 1971 has stayed always. If this continues to operate, the secular fabric of the Bengalees in the Eastern Bengal shall be washed out and there will be no room for the minorities to live with a dignified standing and the Awami League’s role in propagation of the same shall only be seen as a discomfort in the topography of a state that has seen a lot of divisive politics in the last few years with immense vote rigging for winning the seats of power. The tribals, also minorities, have also faced immense oppressions specially in the militarized hill tracts of the Chittagong. It can only be hoped that the citizens live up to the tenets of their Constitution, where in Article 11, it is mentioned that,” the Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed”.

Also Article 32 and 39 mentions the Right to Life and Personal Liberty and The Right to Freedom of thought conscience and speech ( special reference to Digital Security Act, 2018 of Bangladesh) and these must be invoked and protected at all costs in order to quash the violence by taking strict actions against perpetrators without any bias towards religion, creed and sect.

Hefajat-e-Islam (HeI) claims it is apolitical, as they do not participate in electoral politics, but they are at the forefront of accumulating religious capital and have emerged as important players in Bangladeshi politics. Hefajat-e-Islam, which literally means ‘protector of Islam’, was established in 2010 as a reaction to the Draft National Women’s Development Policy Bill, proposed by the military-backed caretaker government in 2008.

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