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Virtual courts in the times of Covid-19: Are we future ready?

Though these measures are commendable, we need to consider if India is ready to adopt virtual courts as a permanent part of the justice dispensation system.



Virtual courts in the times of Covid-19?
Virtual courts in the times of Covid-19?

The Covid-19 pandemic has disrupted the justice delivery system like never before. The compulsions associated with “social distancing” coupled with lockdown directives have led courts and tribunals to shut their premises to the public. At the same time, recognising that a complete shutdown of the justice-delivery system is undesirable, the judiciary has turned to technology to meet the challenges posed by the pandemic.

Various judicial and quasi-judicial bodies, led by the Supreme Court, have been conducting hearings through video conferencing. However, the prevailing circumstances have also provided an opportunity to embrace, and maybe even integrate, technology into our judicial system as a permanent feature. This is the need of the hour and judicial administrators are responding proactively to the challenges posed by the pandemic.

In the coming times, what needs to be considered is that though these measures are commendable, are they sufficient and is India ready to adopt virtual courts as a permanent part of the justice dispensation system? The Supreme Court bench headed by Justice DY Chandrachud, who is presently the head of the Supreme Court E-Committee, while delivering judgements on 13 April 2020, is reported to have said that the technology being used for the Supreme Court has been advancing in some respect, however live broadcasting and viewing of proceedings and hearings would not be open to and accessible by all for the time being.

Vanita Bhargava is a Senior Partner of the Dispute Resolution Practice with Khaitan & Co, New Delhi. She is an advocate-on-record in the Supreme Court.

On the other hand, Justice GS Patel of the High Court of Judicature at Bombay issued special directions for live streamlining of matters listed before him between 8 April 2020 and 14 April 2020. To answer the question, one needs to consider the following:


The present situation clearly depicts the effect on society and economy if the justice system comes to a halt. It causes great hardships to the legal system, practitioners, and mainly to the litigants. One cannot rule out altogether, the occurrence of a similar situation in the future that causes a disruption such as the current Covid-19 pandemic, therefore, it is essential that we prepare ourselves with a better virtual court setup.


Speedy justice is especially required in cases of bail and criminal trial to prevent people from languishing in prison. It is also necessary to resolve commercial disputes, and to that extent virtual mediation can be given a push.


Fundamental rights ought not and should not remain suspended due to disruptions of the kind we are facing currently. To see if virtual court system can help in transcending space and geography and increase access to the judicial system, it needs to be ensured that the infrastructure is in place, including in the rural and remote areas of India.

While such a system could help transcend space and geography at the same time the access of justice to litigants would largely depend on the available infrastructure, creating awareness and imparting training to various stakeholders. Therefore, at this point, it seems as though, virtual courts becoming a permanent feature in all districts and courts across India is a difficult task considering the cultural, economic and geographical position of India, where many may not be able to afford the infrastructure required.

It would need to be ensured that facilities such as e-sewa find their reach along with ease of accessibility to the remote parts of the country apart from being available in the Supreme Court and the High Courts.


Apart from ensuring that all interested parties have access to the virtual court system, it needs to be made sure that the principle of fair hearing is adhered to. In order to ensure “fair hearing”, one way could be to try and have the trials which involve matters of public importance to be heard in physical open courts, while virtual court hearing could be reserved from matters which are more personal in nature.

In the new standard of procedure, to maintain decorum and ensure fair hearing, some housekeeping rules have been laid down, which can be further developed to make sure that the ends of justice are met. As per the present rules, it is provided that an advocate cannot rely on any documents other than those that have been filed. This is restrictive and may hamper effective adjudication.

On the other hand, it may be argued, that such a system is assertive and it prescribes strict procedures which will ensure timely disposal of cases. A suitable alternative could be a system where the party is granted fixed time-period for filing any additional documents either during the hearing or at a subsequent stage, comparable to the current process of application to file “additional documents”. Another possibility could be live streaming of the hearings on a forum hosted and maintained by the respective courts for live public viewing. Any interested party who may wish to advance any submissions may subsequently file an application seeking leave of the court to do so.


The principle of open courts is that access is given for hearings to public and media, which is a necessary element in preserving freedom of speech and expression, and freedom of press. It also acts as a check and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality in the administration of justice.

The principle of “open court” is encapsulated in the Constitution of India under Article 145(4); Section 327 of the Code of Criminal Procedure, 1973; and Section 153B of the Code of Civil Procedure, 1908. There would be no principle of open court if the media or public are not provided access to the hearings.

Therefore, if the virtual courts’ system is implemented, and the open court principle is to be maintained, it would be vital to adopt the right technology, which is also secure. Open court, as a principle, even helps the younger members of the bar to learn through observation, which furthers their growth. Therefore, this aspect cannot be ignored and has to be taken care of while promoting virtual courts.


Undertrials are required to be presented before the court from jail for certain hearings, for example, bail hearing, announcement of charges, etc. There are procedures in place for the same. However, in case of virtual courts such procedures would have to be put in place.

Section 28 of the Criminal Evidence Act 1999 of England and Wales provides for pre-recorded cross-examination to be shown as evidence in trial cases involving vulnerable or intimidated witnesses. Guidance can be taken from this and other similar provisions from various jurisdictions. In case of undertrials, as well, similar provisions can be put in place, and physical presence limited to cases of utmost necessity. There would, thus, be a need of adequate technology in the jail premises, offices of investigating authorities and prosecutor offices to conduct virtual hearing.


Another important, rather integral, part of a trail is conducting chief/cross-examination of the witnesses. There are credibility issues so far as cross-examinations and examination-in-chief of witnesses are concerned. In this regard, examination of witnesses situated in a different geographic location via commissions merits to be particularly looked at.

While evaluating witness testimony, particularly under cross-examination, there is a concern that the loss of in-person observation, demeanour of a witness will impair the court’s ability to assess the credibility and strength of the evidence. It may be difficult to capture the “look and feel” of the witness’s evidence onscreen and to discern body language, facial expressions and tonal changes.

Further, remote participation raises concerns of witness being coached off-camera or reading from a hidden script. This casts doubt on the soundness and utility of a witness’ virtual evidence. However, this difficulty can be creased out by providing supervised examination rooms in various districts with video conferencing facility. This will also ensure that no adjournments are taken due to non-availability of a witness. Moreover, secured servers can be created, so that documents are not tampered with while being shared virtually, and the use of blockchain technology etc can be used to ensure authenticity of the same.


A major concern for virtual courts is security breaches and confidentiality. This is enhanced if third party software is used, as the user will be governed by privacy policy of the service provider. The present standard of procedure provides that hearing shall not be recorded. However, the question is, what is the effective way of ensuring the same.

Documents and information of cases are very sensitive and showing them online does pose a certain threat especially in a country where cyber-crimes are at a rising rate and very difficult to track (due to identity theft). In such a scenario, it becomes paramount to develop a software that not only has ease of accessibility but is at the same time secure and protected.


Virtual hearings might not necessarily work for all category of cases. Matters which are simpler can easily be adjudicated through virtual courts, like presently, matters relating to traffic challans are being dealt with virtually. Different standard of procedures can be laid down based on the category of cases.

Where it appears that it is difficult to adjudicate a case based on standard of procedure laid down, a party may indicate the reasons therefor and the court based on the same or suo motu, in its discretion, may direct hearing in physical court. Infrastructure challenges could include good internet connectivity, especially in case of video calls (conference and hearings).

Further, the access to hearings would be limited to people registered, as that is the only way to filter that fraud and ensure misrepresentation does not take place. Going forward with increased technology, awareness, provision of facilities in all districts, it could be used extensively, and physical Courts could be reserved as an exception for conduct of hearings of public interest or other excepted categories. There is a need to replicate international arbitration models in India, whereby routine hearings and case management conferences are held via video or audio conference.

The litigants are also to play their role in achieving a successful model of virtual courts. Steps that litigants and parties could take include: having digital signatures in place; keeping scans of all documents; having facilities like printer/ scanner available for ease of correspondence and efficient exchange of documents; having the basic infrastructure such as a good internet connection in place for virtual connectivity.

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Legally Speaking

Decriminalising defamation in India

Sushil Kumar Jain



Understanding defamation

Before starting with the topic “Decriminalizing Defamation in India” it is imperative to understand the meaning and concept of “defamation”.

The word “defame” means “to harm the reputation of”. Defamation of a person is an offence punishable u/s 499-500 of the Indian Penal Code. The offence can be traced to violation of “right to reputation” which is a genus of the “right to life and liberty” protected under Article 21 of the Constitution of India. If a person’s reputation is harmed, his rights under Article 21 of the Constitution of India are infringed for which he has remedy of torts under civil law and remedy u/s 499-500 of the IPC under the criminal law. The said section provides that any words, signs or representations which harm or intend to harm the reputation of a person would constitute the offence of defamation. There are nine exceptions provided to the said definition and an act or publication is not defamation if it falls under any of these nine exceptions.

 A delicate balance

Undoubtedly on one hand, an individual’s right of reputation is protected under Article 21 and at the same time freedom of speech and expression is recognized and protected under Article 19(1)(a) of the Constitution. Since both the rights are protected, one right cannot be given preference over the other and therefore the state whose actions are subject to Article 13 cannot, by way of legislation, indicate a preference on one right over the other. Both the rights have to be harmoniously construed. (Chintaman Rao v. State of M.P., AIR 1951 SC 118).

Creation of criminal remedy creates an imbalance as it has a chilling effect on the exercise of a right of speech. The mere threat of criminal prosecution and the possibility of a prison sentence and fine is intended and directed towards discouraging people from speaking out.

Why decriminalising

Defamation was sought to be decriminalized on the ground that the colonial law has become antithetical to free speech and is being used for stifling voices. Defamation of an individual by another individual is a civil wrong or tort, it can be remedied by an action for damages. The enabling power in Article 19(2) to impose reasonable restrictions is intended to safeguard the interests of the State and the general public and not of any individual. Criminalizing defamation has the effect of virtually negating the freedom of speech and expression. The law of defamation is unreasonable and vague in as much as even truth is not a complete defence as per the provision. It is only a defence if the matter is concerned with public good which itself is an extremely vague concept and hence is prone to misuse

The rampant misuse of the provisions

There have been numerous instances where the law of defamation has been extensively misused by influential litigants to browbeat or arm twist their opponents.

A large number of civil cases are filed alleging forged wills or civil disputes based on forgery, fabrication and misrepresentations. Section 499 would enable the defendant to take recourse to defamation proceedings against the plaintiff to arm twist the party so that he may not pursue his civil case. In terms of the press, criminal defamation has a chilling effect which leads to suppress a permissible campaign. The threat of prosecution alone is enough to suppress the truth being published.

The procedural safeguards can only stand the test of reasonableness if the Exceptions to Section 499 IPC are taken into consideration at the time of summoning of the accused and burden is placed on the complainant to prove that the case is not covered by any exception listed in section 499.

The Role of Press

The Supreme Court in the case of Ramesh v. State of Madhya Pradesh AIR 1950 SC 124 included freedom of press as a fundamental right under article 19(1)(a) of the Constitution of India. The result was that the press could not be subjected to any restriction by making a law unless that law itself was constitutionally valid and was consistent with clause 2 of Article 19. The freedom of press is well recognized in the case of Indian Express Newspaper vs. Union of India in 1985(1)SCC 641

While considering freedom of speech and expression the function of press and media is exposing abuses of power and corruption of public officials and in keeping them responsible to the people, who they are expected to serve. Philosophically, the ultimate good in free society can be reached only by discovery of truth. The concept of freedom of press originated in England. Prosecution for the expression of opinion in matters relating to science or philosophy were resorted to by the Church and the State; to suppress alleged hearsay, sedition and the corruption of the youth.

In today free world freedom of press is the heart of social and political intercourse. Since freedom of expression includes the freedom to propagate one’s own views as well as of others and to communicate them to others, it follows that the freedom of the Press includes the right to give opinions (subject only to such restrictions, imposed by the State, as are constitutionally permissible). Such views or opinions may be those of the editor or author but also those of other people, printed under his direction.

Supreme Court on decriminalising defamation

The constitutional validity of section 499-500 IPC was challenged before the Supreme Court recently in Subramayam Swamy vs Union of India. The Court has upheld the constitutionality of the said provisions and refused to decriminalise the same. The Court observed that the freedom of speech and expression does not confer an absolute right to speak or publish whatever one chooses and it is not an unrestricted or unbridled licence that may give immunity and prevent punishment for abuse of the freedom. Protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest. The Supreme Court has opined that the reputation of one cannot be allowed to be crucified at the altar of the other’s right of free speech.

The loose ends

In the case of Subramanian Swamy, the Court has not take into consideration:

The effect of criminal defamation as being an indirect censorship on the press.

 The said provision has a chilling effect on the freedom of the press and will negatively impact the investigative journalism which is the need of the hour.

The media houses will have to prove the truth of their allegations which process is extremely long and cumbersome and till that time, the editor, journalist and other persons would be treated as an accused and will have to face a lengthy trial.

Criminal cases consist of an onerous procedure for trial i.e. requirement of bail, attendance on every day of hearing, standing in the accused stand several times. Moreover, as per the latest figures there is a pendency of a staggering 3 crore cases in different courts out of which almost 2 crore cases are criminal cases.

There have been gross abuse of such provisions as is evident from the misuse of 498A IPC. The Court has to be alive to the ground realities. Given the case arrears and the slow pace of trials there have been few convictions for criminal defamation. It stifles legitimate speech itself.

 The Court has spoken at length about the importance of the reputation of an individual which is a part of Article 21 and has held it to be a justification for the criminalization of the offence of defamation. But the Court fails to consider the loss in reputation and the consequent violation of Article 21 of the person who has been falsely accused in a case of defamation. Under the circumstance, on the one hand even if the right of reputation of complainant is affected, there is competing right of the accused in defamation case, who, after facing a protracted trial has been acquitted. The provision of sections 499-500 are also required to be considered from this aspect.

Two kinds of defamation actions have emerged. First, political interests have adopted defamation law to settle scores and second, powerful entities such as large corporations have exploited weaknesses in defamation law to threaten, harass, and intimidate journalists and critics. In a prosecution for defamation under Section 499 IPC, fair comment would not be protected.


This is the right time the Parliament should act in the matter in public interest. The legislature needs to step in and remove this colonial provision. With criminal defamation laws, critics become criminals and those who wish to participate in the public debate of ideas that characterise democracy face a heightened risk.

Sr. Adv. Sushil Kumar Jain is Senior Advocate, Supreme Court.

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Legally Speaking

Trademark tussle between Hindustan Unilever & Emami: Fairer than a fairytale?

Yashwardhan Rana




Hindustan Unilever Limited (HUL), a subsidiary of British-Dutch multinational company Unilever PLC and the home-grown Kolkata-based FMCG firm Emami have a history of trademark conflicts and defaming each other in in ads and marketing strategies. In some some of the cases, Emami has had the upper hand as it has also always enjoyed a greater market share which is currently over 65% with respect to the men’s fairness cream category. However, on this occasion HUL has taken the leap and moved ahead. According to a research carried out by “Research and Markets (PR Newswire Association LLC)”, the women’s fairness cream category is anticipated to achieve market revenues of more than Rs. 5,000 crore by year 2023. Rising supremacy of media and entertainment, constant pestering by the society to look well groomed all the time, inferiority complex from colleagues at workplace, the yearning to try out new products launched in the country, rise in number of young population, etc are some of the factors which has driven the market of women’s fairness cream market in the last decade or so.


Recently, the move by HUL to rebrand its bestselling skin lightening cream — “Fair & Lovely”, and by removing the terms fair, white and light from its brand packaging has come too late (based on the idea of better-late-than-never and not inculcating proactive attitudinal change) and after successfully feeding the minds of millions of Indians in equating fair skin with beauty. US healthcare and FMCG giant Johnson & Johnson (J&J) followed suit and decided to stop the sale of its skin-whitening creams globally, including India. Also, french personal care maker the L’Oreal Group has decided to make a change and and remove the tags like ‘white’, ‘fair’, ‘light’ from its skincare range.

It is to be noted here that atleast they’ve realized and have made a conscious decision to change and rebrand their products. A big chunk of the change of perception stems from the #BlackLivesMatter movement and we are thankful for the traction it got around the world in turn encouraging many corporations to re-assess their business model and marketing policies for the better in identifying discrimination, racial slur and inequality after the death of George Floyd in the United States.

 A fair-skin obsession in a country of more than a billion people where the majority of people are brown (so as to say) has been a lifelong grooming in selfloathing and discrimination. However, these brands are not the only guilty ones, Indian film industry, our ancestors – all have at some point in time have continuously reminded us to focus our energies on being fair and in turn inculcating the significance of beauty and attractiveness.

 The Recent Trademark Tussle

Coming back to case at hand, HUL has been on the hunt to find an appropriate name in order to rebrand its products “Fair and Lovely” since September, 2018. To cut the long story short – there have been two point of contentions that need to be discussed – Firstly, the question of ownership (prior user, prior adopter and so on and so forth) of the trademark in question “Glow and Handsome” and secondly – whether the use of “Glow and Handsome” constitutes unfair business practices and advertising?

In Hindustan Unilever Limited (Plaintiff) v. Emami Limited (Defendant), Hon’ble Justice B.P. Colabawalla of the Bombay High Court on 6th July, 2020 via video-conferencing granted an ad-interim injunction (to maintain status quo) in favor of Hindustan Unilever Limited (HUL) with respect to use of the ‘Glow & Handsome’ trade mark. HUL approached the Bombay High Court under Section 142 of the Trade Marks Act, 1999 (which prohibits groundless threats of legal proceedings against holders of registered trademarks) seeking an injunction against Emami.

The plaintiff argued that Emami’s claim of proprietorship over the ‘Glow & Handsome’ mark was false and misconceived and that HUL was the prior adopter and user of the marks. The Plaintiff also contended that on 7th September 2018, after conducting a pre-filing search in the Register of Trade Marks, they independently and honestly coined and adopted the trade marks ‘GLOW & LOVELY’ and ‘GLOW & HANDSOME’ in respect of its skin care products. Furthermore, to secure its statutory rights in the ‘GLOW & LOVELY’ and ‘GLOW & HANDSOME’ marks, the Plaintiff filed multi-class applications bearing Nos. 3938924 and 3938925 in classes 3 and 5, respectively, on 7th September 2018 on proposed-to-be-used basis. However, after the examination of the multi-class application as filed, a Preliminary Examination Report dated 10th October 2018 in respect of the Plaintiff’s mark ‘GLOW & HANDSOME’ bearing application No. 3938925 was issued and the Registrar of Trade Marks raised an objection under Section 9(1)(a) of the Trade Marks Act, 1999 (Absolute Grounds for refusal – lack of distinctiveness). Subsequently, the Plaintiff filed its Reply to the Examination Report on 29th October 2018 and upon further examination, the Registrar of Trade Marks vide its order dated 26th Holy, 2019 refused registration of the Plaintiffs mark ‘GLOW & HANDSOME’ bearing application No. 3938925. It should be noted here that the Plaintiff has preferred an appeal against the said decision of the Registrar of Trade Marks before the Intellectual Property Appellate Board, wherein the appeal is pending.

It is pertinent to mention here that the Plaintiff had recently filed another set of trade mark applications bearing nos. 4534961 dated 17th June, 2020 and 4544086 dated 25th June, 2020, both in classes 3 and 5 seeking registrations of the trade mark labels ‘GLOW & LOVELY’ and ‘GLOW & HANDSOME’ on proposed-to-used-basis.

Further, on 2nd July 2020, the Plaintiff made an official announcement that its trade mark/brand ‘FAIR & LOVELY’ is to be rebranded as ‘GLOW & LOVELY’ for its skin care range of products and the skin care range of FAIR & LOVELY products for men will be called as ‘GLOW & HANDSOME’ via social media and newspapers. Thereafter, Emami gave statements in various newspapers inter alia threatening to adopt legal action against HUL for violating the Defendant’s alleged rights in its mark ‘EMAMI GLOW AND HANDSOME’.

After perusing the evidence presented, the Judge noted that prima facie HUL appeared to be the prior user of the marks and granted the interim relief sought by the plaintiff. The Hon’ble single judge passed an ad-interim order in terms of prayer clause (a) of the Interim Application, which reads as follows:

“(a) that pending the hearing and final disposal of the suit, the Defendant, its directors, proprietors, partners, owners, servants, subordinates, representatives, dealers, agents and all other persons claiming under it be directed by this Hon’ble Court to give atleast 7 clear working days prior written notice to the Plaintiff at the Plaintiff ’s advocates’ address before initiating any proceedings including legal proceedings in any court or claiming any interim or ad-interim reliefs against the Plaintiff as threatened in the statements issued / made on behalf of the Defendant against the Plaintiff ’s use of the trade mark ‘GLOW & HANDSOME’.”

The above interim application was thus listed for further reliefs on 27th July 2020.

 In India, the ownership of a trademark is determined on a first-to-use basis as per Section 34 of the Trade Marks Act, 1999. The principle of “Priority in adoption and use prevails over priority in registration” and thus is usually applied in these circumstances (legal milieu that a corporation can get when it’s first to launch or commercially launch its products in the market). Further, any entity that can establish ownership over a trademark by using the mark in the course of its trade and by substantiating upon its prior commercial use of the mark (marketed and sold) by adducing evidence such as extensive publicity and promotion via social media presence, print media, invoices, expenditure incurred, etc. and in such a way that the public associates the trademark with that of the prior user of the trademark – shall prevail as per trademark law.

 Further, on 16th July, 2020, Emami (Appellant) preferred an ad-hoc appeal to vacate the order passed by the Hon’ble single judge on 6th July, 2020. To this effect, Hon’ble Justices R.D. Dhaka and V.G. Bisht, reiterated the position taken by the Hon’ble single judge and decided not to interfere with the order as passed.

Ultimately, on the July 27th, 2020, the matter came up for hearing before the single judge via video conferencing, Emami contented that the order dated 6th July, 2020 is contrary to provisions laid out in Section 142 and more particularly sub-section 2 thereof which clearly states that Section 142 (1) shall not apply if the registered proprietor of the trademark or the registered user acting in pursuance to sub-section (1) of Section 52, with due diligence, commences and prosecutes an action against the person threatened for infringement of the trademark. Perusing the said provision, the learned single judge modified its order dated 6th July, 2020 and was of the view and directed that the defendant shall give 5 days notice to the plaintiff if they choose to move for any ad-interim/ interim relief in any other proceedings initiated in a Civil Court (other than the proceeding already filed/ initiated in the High Court of Calcutta), in relation to the trade-mark “GLOW & HANDSOME”.

Key Takeaways

The question which comes to my mind is whether by dropping a word and claiming to be innocent in the eyes of public while selling the same product for years altogether undo the harm it has done or will it be preventing further damage by substituting mere terms in their products? Will it be able to undo the pervasive stigma of having a darker skin and its uncontrollable perception around it taste success in removing these so-called barriers constantly being advertised by these brands over the years?

Some of the steps that can be adopted by Corporations, Business owners, Consumers, Govt. etc. advancing towards inclusivity and evolving into an all-embracing culture are delineated as follows:

Businesses should not wait for launch or release of its products/ services and file for trademarks beforehand;

 Implementation of the Drugs and Magic Remedies (Objectionable Advertisements) (Amendment) Bill, 2020 in the near future;

Global cohesion against racism and obsession of fair skin colour;

 Stringent penalty against those who discriminate on the basis of skin colour;

Conscious and Responsible Advertising anticipating change in society and bringing about reforms cyclically;

Generic names such as night, fair, white, etc. with respect to skin care products to be struck-off; and

Consumers should read label of products before purchasing any skin care brand.

Adv. Yashvardhan Rana is Intellectual Property Lawyer attached to the office of Inttl Advocare.

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Legally Speaking

Shri Ram janmabhoomi: Reconciling truth & secularism

When the ASI’s report revealed that the demolished temple’s pillars were used for the construction of the disputed structure in the 1500s, the new argument that was set up was that of ‘architectural reuse’, i.e. it was contended that the temple was not demolished to build the disputed structure in its place, instead it was merely an established practice to use the debris of pre-existing religious structures to construct new places of worship.

J. Sai Deepak



The Bhoomi Pujan ceremony performed at the Shri Ramjanmabhoomi in Ayodhya two days ago has predictably evoked diametrically opposite reactions from various quarters. These reactions include celebrations by those who succeeded in proving their case before the Allahabad High Court as well as the highest Court of the land after struggling for half a millennium to secure justice in their civilizational homeland, and scurrilous allegations being hurled against the watchdog of the Constitution by those who failed to prove their case at every level. Ironically, the ideals personified by Lord Ram and valued by the Indic Civilization are being cited by those who are opposed to the construction of the Temple dedicated to Lord Ram even after the Supreme Court’s endorsement of the case of the Temple’s proponents.

 As expected, secularism has been conveniently pressed into service by the usual dramatis personae to contend that the Bhoomi Pujan marks the death of secular ethos of India. To add to this, the demolition of the disputed structure in December 1992 has also been marshalled to question the validity of the Supreme Court’s judgement and the legitimacy of the construction of the Temple in Ayodhya.

In this author’s view, this is a textbook case of conflation of several issues to present a narrative which is factually, legally and civilizationally untenable. First, the legal proceedings with respect to ownership of the Site at Ayodhya which culminated into the judgement of the Supreme Court in November 2019 were initiated in 1950 i.e. 42 years before the demolition of the disputed structure in 1992. Also, legally speaking, the issue of demolition of the structure has no bearing whatsoever on the question of ownership of the Site. At best, it gives rise to a separate proceeding, which is currently pending, for interference with the Site and for violation of judicial orders which directed status quo during the pendency of the dispute over ownership. Therefore, to conflate the question of ownership which was initiated in 1950, with the demolition of the disputed structure in 1992 is to conveniently mispresent the timeline as well as the legal position.

Second, those who raise the issue of demolition of the structure in 1992 must also come clean on the constant shifting of goalposts which the case saw- from dismissing the existence of a Temple underneath the disputed structure prior to the excavation of the Site by the Archaeological Survey of India (ASI) under the directions of the Allahabad High Court in 2003, to questioning the historicity of Lord Ram after the ASI’s findings revealed the existence of a Temple underneath the disputed structure, every possible attempt was made to change the narrative and to deny irrefutable facts.

 In fact, when the ASI’s report revealed that the demolished Temple’s pillars were used for the construction of the disputed structure in the 1500s, the new argument that was set up was that of “architectural reuse” i.e. it was contended that the Temple was not demolished to build the disputed structure in its place, instead it was merely an established practice to use the debris of pre-existing religious structures to construct new places of worship. Not only was this specious argument sought to be applied to the Site in Ayodhya, it was also extended to the thousands of other similarly placed religious Sites which are proof of occupation of indigenous places of worship, Kashi and Mathura being glaring cases in point.

 What must also be placed before the Court of public opinion is the intense opposition to the Allahabad High Court’s direction to the ASI to excavate the Site in Ayodhya to examine if there was indeed any Hindu Temple or Hindu religious structure underneath the disputed non-Hindu structure. The Full Bench of the Allahabad High Court originally directed the ASI on August 1, 2002 to survey the Site. However, questions were raised as to the impartiality and integrity of the ASI by those opposed to the Temple, and therefore, the High Court directed representation by both communities in the functioning of the ASI at the Site as well as in the engagement of workforce for excavation. In the interest of transparency, the High Court further permitted the representatives of both parties and their lawyers to be present during the course of excavation by the ASI, and the ASI was directed to photograph and videograph the excavation. The High Court went to the extent of appointing two experienced Judicial Officers to observe the entire process and to ensure compliance of the Court’s orders.

It is under such rigorous and transparent conditions that the excavation was undertaken by the ASI from March 12, 2003 to August 7, 2003 and the final report was filed on August 22, 2003. In all, 90 trenches were excavated which revealed pillar bases, structures, floors and foundation. Following are a few excerpts from the ASI Report which established the existence of Temple underneath the disputed structure:

 “The aforesaid pillars and other decorative architectural members of this site like fragment of broken jamb with semicircular pilaster (Pl.85), fragment of lotus medallion motif (Pls.89-90) emphatically speak about their association with the temple architecture. Stylistically, these architectural members in general and pillars in particular may be placed in a time bracket of tenth-twelfth Century A.D. It is also pertinent to note that there are a few architectural members (Pls.92-94), which can clearly be associated with the Islamic architecture on stylistic ground, which might belong to sixteenth century A.D. onwards.. …Now, viewing in totality and taking into account the archaeological evidence of massive structure just below the disputed structure and evidence of continuity in structural phases from the tenth century onwards upto the construction of the disputed structure along with the yield of stone and decorated bricks as well as mutilated sculpture of divine couple and carved architectural members including foliage patterns, amalaka, kapotapali doorjamb with semi-circular pilaster, broken octagonal shaft of black schist pillar, lotus motif, circular shrine having pranala (waterchute) in the north, fifty pillar bases in association of the huge structure, are indicative of remains which are distinctive features found associated with the temples of north India.

 It is quite apparent that in due course of time the height of the Ram chabutra was further raised in two phases first having three levels of calcrete blocks mixed with brick-bats, terracotta objects and potsherds of earlier period set in like-surkhi mortar, each level divided by well plastered surface. Finally, on the top, four courses of lakhauri bricks, brick-bats of earlier bricks set in like- surkhi mortar, were laid, probably during the late Mughal period over which cement plaster was done at a later date in which were fixed memorial or decorative slabs as evident from the impressions available over the plaster (Pl.19). Thus the minimum height of the structure was found to be no less than 7.40 m. In the extended part of the Ram Chabutra in the west its retaining wall has damaged the pillar bases 30, 33, 36, 39 and 42 of the Period VII. (Fig.3B)

 During the excavation 62 human and 131 animal figurines were found. In the consonance with the prevailing practice in the Gangetic valley, these figurines are the products of both handmade as well as moulding techniques. These terracottas are assignable from the preMauryan to the previous century. They are both religious as well as secular, the former being represented as cult objects viz. mother-goddess.

 In the ASI’s report Vol. II Plate 67 is photograph of “Garud- dhwaj” Plate No. 88 is photograph of “Srivatsa”. These religious symbols of the Hindu Temple have been found during excavation at disputed site in Ayodhya. In Sri Bhagawat-Puran. 1.18.16; Sri Mahabharat Anushasan Parva.149. 51 & Shanti-parva Garuddhwaj have been mentioned as one of the thousand names of the Lord of Universe Sri Vishnu which means in the Flag of Lord Vishnu emblem of Garud finds place. In Sri Valmiki Ramayana Yuddh-Kanda.111.13 & 132; Sri Mahabharat| Anushasan Parva.149.77; Sri Ramcharitamanas Balkanda.146.6 Sri Vatsa has been mentioned as a holy mark on the chest of the Lord of Universe Sri Vishnu. Finding of these holy religious symbols related to the Lord of Universe Sri Vishnu leaves no doubt that the structure in question was a Vaishnav Temple.”

 Against such clear findings of the ASI’s comprehensive report, the Sunni Waqf Board filed its objections through its experts, which was responded to by the experts of the Temple side. Following was the sum and substance of the objection raised by the Sunni Waqf Board, as captured in the judgement of the High Court:

“The ASI department is under the control of Central Government. At that time the then Prime Minister Shri Atal Behari Bajpayee, Deputy Prima Minister Sri L.K. Advani and HRD Minister Sri M.M. Joshi all were of the BJP as such the ASI excavation team acted under their instruction and behest. As such said report being biased and mala fide is liable to be rejected.”

 After discussing the report of the ASI and its findings in detail, the High Court dismissed the allegations of bias as baseless. Following are a few excerpts from the High Court’s judgement:

“There is nothing on record to show that the report was biased. The massive structure theory was not based on imagination. Evidence of bones found from different levels postulate the fact that Hindus also used to perform sacrifices of animals to please the Gods. About pillar bases there is nothing on record to suggest as to how the construction can be disbelieved. The main thrust of the plaintiffs (the Sunni Waqf Board in Suit No. 4) is that there was a structure which was not a Hindu religious structure is not believable for the reasons that certain images were found on the spot were there. Hundreds of artefacts which find mention in the report were recovered during the excavation that denote the existence of Hindu religious structure.

The only objection that has come prominently from the side of plaintiff (Sunni Waqf Board) is that A.S.I. team has worked under the pressure of the Central Government. It has nowhere been mentioned that who was the person in Central Government exercising any influence over 14 members team that excavated the site. The bald allegations cannot be accepted.

 Sri Haji Mahboob Ahmad, D.W. 6/1-1 has failed to substantiate his allegations. He has not adduced any evidence in support of his contention as to who was the person interested in the Central Government and exercising influence over A.S.I. team.

Thus, on conjectures and on false allegations a scientific report submitted by a team which was working under the direct control of this Court, cannot be supposed to act under the influence of any Government or any person. It is a databased report. Videography and photograph were also conducted during excavation. On behalf of the plaintiffs, it has not been suggested that the report is against any of the videography film or photography film. These films are preserved. Thus, without any material on record, it cannot be said, at this stage, that the version of Sri Hazi Mahboob Ahmad, DW-6/1-1 may be accepted as truthful.

 The excavation report of the ASI is a scientific report of experts against whom bias and malafide has not been proved. Accordingly, it has been relied upon as a piece of evidence on the basis of the case law referred to above.

..on the basis of the report, it can conclusively be held that the disputed structure was constructed on the site of old structure after the demolition of the same. There is sufficient evidence to this effect that the structure was a Hindu massive religious structure.”

 A reading of the judgement of the High Court makes it abundantly clear that allegation after allegation of bias was levelled against even expert statutory bodies without any shred of evidence despite every procedure laid down by the High Court in the interest of transparency being observed by everyone under the supervision of judicial officers. In a nutshell, allegation, evasion and obfuscation exemplify the history of the Ayodhya dispute, which ought to have been long resolved, at least after the judgement of the High Court in 2010. Similar allegations are now being levelled after the verdict of the Supreme Court despite the Court granting 5 acres of land i.e. almost twice the size of the disputed area, to the losing party which is unprecedented in any property matter.

This warrants a few questions. While every party to a legal proceeding has the right to express its displeasure with a verdict within the bounds of the law, what remains of the moral authority of a party which has constantly shifted its positions, to now grandstand from the tried and tested soapbox of secularism? Is secularism the be-all and end-all of the Constitution? Or are facts, truth and justice to be valued more than the slippery slope and trope of secularism which acquires a new definition and hue with each passing day? What exactly is the nature of this brand of secularism and what are its limits? Is it secular to label one particular outcome in a legal proceeding as unsecular? If so, should Courts forego rules of evidence and commitment to facts, and instead rely on such skewed definitions of secularism to decide such disputes?

 Bharat has civilizationally valued secularism in its own way, which enables people of different faith systems to practice their faiths, and even atheists to profess their conscience without hindrance. Independent Bharat is a successor to this tradition. After all, it cannot be any reasonable person’s case that Bharat, which provided refuge and shelter to persecuted Jews and Parsis even before it became a Republic, was less secular until the insertion of the word in the Preamble pursuant to the 42nd amendment to the Constitution in 1976. If that were not the case, should the framers of the Constitution and all dispensations between 1947 and 1976, including the Nehruvian, be deemed unsecular and antisecular merely because the Preamble did not contain the word secular?

No version of secularism offers a carte blanche to play footsie with facts, nor can it ever be the basis to deny history and justice. Bharat’s commitment is above all to Dharma, which, to the extent the English language can accommodate the concept, translates to righteous and moral conduct, not religion. And by patiently awaiting the verdict of the Supreme Court after struggling to have their voices heard for over 500 years to reclaim one of their Holiest Sites, the adherents of this civilization have abundantly demonstrated their commitment to truth, justice and secularism.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of Indian and the High Court of Delhi.

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Analysis of the legal aspects of anticipatory bail: Law and reality

Shivanshu Goswami




 In Black’s Law Dictionary, bail has been defined as “a security such as cash or bond especially security required by a court for the release of a prisoner who must appear at a future date.”

This constitutes a very important element in our entire criminal justice system because it concerns the personal liberty of an individual, our constitution places personal liberty at a very high pedestal. The Hon’ble Supreme Court at many instances has emphasised the importance of following due process in the matter of arresting. The law regarding bails as well as anticipatory bail is all about balancing, on the one hand there is presumption of innocence, the right to liberty etc. on the other there is public interest it is the courts that has to somehow reconcile the tool. Thus the factual matrix of each case is important for the grant of a bail or a anticipatory bail application. The power of section 438 Cr.P.C being an extraordinary remedy has to be exercised sparingly. The Supreme Court in the case of Kamlapati v. State of West Bengal,1980 SCC (2) 91 defines bail as a technique which is evolved for effecting the synthesis of two basic concepts of human value, viz., the right of an accused to enjoy his personal freedom and the public’s interest on which a person’s release is conditioned on the surety to produce the accused person in the Court to stand the trial.‟ Now basically the bail and anticipatory bail are different to each other in terms that anticipatory bail is a pre arrest bail whereas a regular bail is a bail after the event of arrest has taken place. The guidelines and concepts are different between bail and anticipatory bail. Further discussing about the anticipatory bail, The innocence of an individual can’t be questioned till he’s established guilty in a criminal trial, bail is concomitant and inherently tangled with a person’s right to innocence and freedom till established guilty. Anticipatory bail may be a leap forward during this notion that permits the person to retain his right to freedom within the anticipation of his arrest with a reasonable cause. Way back The Hon’ble Supreme court in the case of Balchand Jain vs State of MP 1977 AIR 366,1977 SCR (2) 52. Court had observed Anticipatory bail means a bail in anticipation of arrest .

 In the Cr.P.C., 1898, there was no provision similar to section 438 of the 1973 Code which could provide for anticipatory bail. Anticipatory bail was, however, granted in certain cases by the High Courts’ inherent powers although the dominant read negatived the existence of any such jurisdiction. The Law Commission in its 41st Report, recommended the indulgence of a provision within the Code enabling the high court judicature and also the Court of Session to grant “anticipatory bail”. The Commission viewed that “the necessity for granting anticipatory bail arises chiefly as a result of typically authoritative persons attempt to implicate their rivals in false cases for the aim of disgracing them or for alternative functions by obtaining them detained in jail for a few days. As of late, this inclination is giving indications of consistent increment. Aside from false cases, where there are sensible reason for holding that an individual blamed for an offense isn’t probably going to steal away, or in any case abuse his freedom while on bail, there appears to be no support to require him first to submit to care, stay in jail for certain days and afterward apply for bail.A judgement which needs to be pointed out is a Constitutional Bench Judgement in the case of Gurubaksh Singh Sibbia v. State of Punjab,(1980) 2 SCC 565(1980) SCC (Cri)465.The Constitution Bench in this case consisting of five judges bench emphasized that provision of anticipatory bail enriched in Section 438 of Cr.P.C is conceptualised under Article 21 of the Constitution which relates to personal liberty, therefore such a provision calls for liberal interpretation of Section 438 Cr.P.C in the light of Article 21 of the Constitution. The court also stated that there is no restriction that anticipatory bail should be given in exceptional cases, Section 438 should be in short always be interpreted in the light of Article 21 of the constitution it held granting of anticipatory bail is a matter of right of individual should not be limited by time and court can impose restrictions on case to case basis. Whereas, In Salauddin Abdulsamad Shaikh vs State of Maharashtra (1995) case: SC overruled its earlier judgment and held that “granting of anticipatory Bail should be limited by time. “Finally in Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694 The Supreme court laid down firm guidelines in granting the anticipatory bail.

Also when in a case the court grants anticipatory bail, what it does is to make an order that in the event of arrest, a person shall be released on bail unless a person is arrested and, therefore, it is only upon arrest that an order granting ‘anticipatory bail’ becomes operational. This very thing is to be understood properly that anticipatory bail order becomes active when the police or the investigation agency initiates to arrest the person and the event of arrest shall take place.

Scope of Anticipatory Bail

The offences has been categorized generally into two categories bailable offences and the non bailable offences ,in terms of the bailable offences the bail is treated as the right of the accused person while under the category of non bailable offences the bail is to be considers as the discretion of the Court adjudicating the application of bail keeping in mind the very thing that the accused should not be deprived of his fundamental rights as well as the society will not suffer because of the accused if he has been granted bail. Now,Anticipatory bail is granted in anticipation of arrest the anticipatory bail ensure freedom till the regular bail application decided by the Court. It means where a person has a reasonable ground that he may be arrested for an non-bailable offence by the police on suspicion, to prevent such arrest the person moves an application in an appropriate court seeking bail in advance prior to his arrest this procedure is called anticipatory bail. Where the application of the person has been allowed then he shall show that order of Court regarding anticipatory bail when the police come to arrest him, on producing such order the person shall be released on bail. This option of anticipatory bail is available to every person who is been suspected of committing or involved in some non-bailable crime or offence.

The High Court and the Session Court both have concurrent jurisdiction to hear the anticipatory bail, but in general practise as a matter of alternative remedy it is preferred to file a bail firstly before a session court and thereafter the High Court. Under section 438 the specific word which differentiate it with other sections relating to bail is “if it thinks fit” these words means that Courts have been given discretionary powers to grant anticipatory bail in non bailable offences.

The court of session or high court can grant anticipatory bail (both having concurrent jurisdiction) after considering the following factors:

1. Gravity of allegations

2. Antecedents of the accused approaching for the anticipatory bail

3. Chances to flee from justice

4. Chances that he may threaten the witnesses and tamper the evidences.

5. Whether any malicious prosecution is possible

Once a person has been enlarged on Anticipatory Bail, if arrested he would be released forthwith by the Officer-in-charge and if the court has to issue warrant, it would be a bailable warrant in first instance only. Though only Court of Session and High Court has power to grant Anticipatory Bail, a Special Leave Petition against the order of High Court is also maintainable if admitted by Supreme Court. A person may apply directly in High Court or approach High Court on dismissal of Anticipatory Bail application by Session Court.

 In a recent pronouncement The Supreme Court in Sushila Aggarwal v. State of NCT of Delhi (2020) case delivered a significant verdict, ruling that ordinarily no time limit can be set while granting anticipatory Bail and it can continue even until the end of the trial. The Court made reference of India’s freedom movement claiming that arbitrary arrests, indefinite detentions, and lack of institutional safeguards played an important role in rallying the people to raise the demand for Independence. A five judges bench observed that if any court which wants to limit the bail it can attach special features to it.There should not be any general rule but it is up to entirely upon the discretion of the court

 Thus in this case the scope of anticipatory bail has been extended but in a case if the proceedings of proclamation and attachment has been issued against the accused person then the limit of anticipatory bail will be effected.

Anticipatory Bail in the State of Uttar Pradesh

Anticipatory bail under section 438 was precluded from the Code of Criminal procedure (Uttar Pradesh amendment Act), 1976. This made anticipatory bail seekers surge either to the High Court or to the

Hon’ble Supreme Court. The Constitution vests powers under Article 246(2) to states to frame laws on the topics counted inside the concurrent list. The concurrent list secures uniformity within the main principle of law throughout country then on avoid excessive rigidity to two-list distribution. In this way, the states cause laws regarding to their political, social, financial and different necessities of that area. The crisis stage made it the necessity of great importance for the state to enact on certain current laws in order to check socio-political showings. Consequently, activities taken by the territory of Uttar Pradesh are frequently validated. Nonetheless, the execution shouldn’t be in a self-assertive way where the re-inclusion of the Segment in regards to anticipatory bail wasn’t started and joined till next 43 years bringing about the negation of the fundamental rights appreciated by the residents presented by the constitution Along these lines, it totally was significant that the justification for anticipatory bail be developed in Uttar Pradesh in such manner that central thought is given to the standard of crucial rights and produce the instrument at standard with the contrary conditions of India. There was a constant interest for its recovery and a few writ petitions were additionally documented. The State Law Commission had suggested rebuilding of this arrangement in its third report in 2009. An advisory group was comprised by the state government under the chairmanship of Additional Chief Secretary to the Uttar Pradesh Government of the Home Department, Special Secretary of the Legislatives, DG Prosecution and Additional Director General of Police (Crime) had also recommended the restoration of the provision. Thus, the provision of the anticipatory bail has been reinstated in Uttar Pradesh, providing the remedy for the accused to get anticipatory bail in non-bailable offences. The Allahabad High court and the apex court had been pressing the state government to re-apply this law. Thus the Section is laid down on the road map of the 2005 Amendment of the Cr.P.C. as provided under section 438(1),(2), (1A) and further providing State amendments as:-

 1. The disposal of the application of Anticipatory bail should be within 30 days by the sessions court or the high court

2.If an application has been filed before high court because of the concurrent jurisdiction and the same is disposed of the same application will not be filed in the sessions court.

3. The person will not be enlarged on anticipatory bail in the offences of the following Acts

(i) The Unlawful activities (Prevention) Act, 1967

(ii) The Narcotic Drugs and Psychotropic Substances Act, 198

(iii) The Official Secret Act, 1923

(iv) The Uttar Pradesh Gangsters and AntiSocial Activities (Prevention) Act, 1986

(v) Offences having punishment till death penalty.


Thus having discussed about the several judicial pronouncements of the apex court it can be rightly said in my opinion that there is no such hard and fast rule in the grant of anticipatory bail , In reality the discretion is of the court which is adjudicating the anticipatory bail application. The fundamental cannon of criminal jurisprudence that every individual is presumed to be innocent till he or she is found guilty should be followed by the court. Likewise the law-making body has not delineated court’s circumspection in any way while conceding expectant bail, along these lines, the court ought not restrict the request just for a predetermined period till the charge-sheet is filed and from that point constrain the denounced to give up and request regular bail under Section 439 of Code of Criminal Procedure. The governing body has given wide prudence to court in the matter of expectant bail in light of the fact that the court needs to apply it as per the specific situation and conditions of each case. The main rational behind the anticipatory bail is just like an insurance that an individual’s liberty is not being hampered unnecessarily and the trust pf people should be maintained in the criminal justice system. It is a device to protect the right of liberty of a person. Since many years, anticipatory bail has come to mean a safeguard for a person who has been falsely been implicated or charges made against him or her, most commonly because of enimity,as it ensures that if a person is falsely implicated he or she will be released because of this provision. Anticipatory bail is one amongst the foremost hotly debated subjects within the Indian criminal justice system. While, on one hand, it’s said to be the custodian of the basic right of life and liberty of a private, it’s also seen as some way to waste judicial time. in a very country that already battles extreme pendency of cases, the stakes do seem high Arbitrary and motivated arrests are an unfortunate reality in India and are only rising. Therefore, it might not be knowing strike down the supply of anticipatory bail as doing so would be detrimental to the guaranteed right of liberty. what’s essential is that a balance always is maintained between the non-public liberty of a personal and therefore the must maintain law and order in society. The courts should exercise their discretion wisely and in ways in which are just and fair, keeping in mind the principles of natural justice.

Adv. Shivanshu Goswami practises at the Lucknow Bench of the Allahabad High Court.

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Legally Speaking

Draft EIA Notification 2020: It may need a revisit by the executive

Vaibhav Choudhary



The Ministry of Environment, Forest and Climate Change (MoEFCC) before the national lockdown has issued the Draft Environmental Impact Assessment (EIA) Notification 2020 for public consideration and comments. The draft notification is issued under the powers vested in the central government under the Environment (Protection) Act, 1986 to take all such measures for “protecting and improving the quality of the environment”. India notified its first EIA norms in 1994, setting in place a legal framework for regulating activities that access, utilise, and affect (pollute) natural resources. Every development project has been required to go through the EIA process for obtaining prior environmental clearance ever since. The 1994 EIA notification was replaced with a modified draft in 2006. The proposed draft notification is to incorporate the amendments and relevant court orders issued since 2006, and to make the EIA “process more transparent and expedient.”

Key Changes under the Draft EIA

 From bare reading it appears that the draft proposes new regime, which dilute EIA norms and public participation, protect project proponents, dilutes the existing mandatory provisions to discretionary ones, safeguarding violators and bring unaccountability and non transparency. However, the Government argues that the new draft notification is being brought in order to make the process more transparent and expedient by the implementation of an online system, further delegation, rationalisation and standardisation of the process. The Key features of the proposed notification include:

The draft has added almost sixty new definitions. The 2006 notification did not have any definitions clause, which made it difficult to ascertain the meaning of various terms used in the notification ;

 The draft mentions two types of approvals for e.g. prior environment clearance with expert committee’s appraisal and environmental permission without an expert committee’s appraisal for different category of projects;

All infrastructure projects and activities will be divided into three categories based on their potential social and environmental impacts and the extent of such impact;

 The draft proposed new expert body, namely, ‘the Technical Expert Committee’. The sole function of the TEC is categorising and re-categorising of projects as A, B1 and B2 on scientific principles on a regular basis. At present this is done by the environment ministry;

 The draft exempts certain projects from public consultation. These include all building, construction and area development projects, inland waterways, expansion or widening of national highways, and modernisation of irrigation projects;

The draft allows for postfacto approval for projects, meaning that the clearances for projects can be awarded even if they have started construction without securing environmental clearances;

 The draft seeks project promoter to file a compliance report once a year, explaining the activities carried out by them according to the allotted permissions. The 2006 EIA notification asks the promoters to file a compliance report every six months.

The draft proposes environment clearance validity for three phases with increased duration. The phases are construction or installation, operation and redundancy, closure and dismantling. Under the draft validity for mining projects will be increased to 50 years (currently 30), river valley projects to 15 (currently 10), and all others to 10 (currently seven);

The draft notification proposes new norm “Dealing with violation cases”, it states that cognizance of environmental violations will be taken in four ways; suo moto application of the project proponent; or reporting by any government authority; found during the appraisal by Appraisal Committee; or any violation found during the processing of the application, if any, by the regulatory authority;

 The draft notification seeks to fast forward clearances by digitising the process and standardising the approvals needed.

Issues in draft EIA Notification 2020

The eighty three page long draft notification consists of various new proposals and changes, which executive needs to revisit before its finalisation for betterment of environment protection. The major issues pertaining to draft notifications are as follows:

Categorisation of Projects: Under the draft notification, all projects and activities have been divided into three categories – ‘A’, ‘B1’, and ‘B2’ based on “the potential social and environmental impacts and spatial extent of these impacts” due to which 25 red and orange industries will be moved from Category A (which needs expert appraisal) to Category B1 or B2, which requires lesser EIA processes. These industries, including chemical processing and acid manufacturing, will be brought under Category B2, which doesn’t need public consultation. Real Estate projects are exempted from environmental clearances and public consultation by adding them under the B2 category, which goes contrary to NGT directions, wherein, the exemptions give to real estate projects in 2016 under 2006 notifications were set aside.

No Consultation with States: The draft notification does away with the requirement of committees to be set up “in consultation” with state governments and gives the central government more control over the constitution of state level regulatory authorities and expert committees. The central government can appoint and dismiss the members on all the state level committees responsible for appraisals and project approvals;

Public Hearing: Public consultations are a prominent feature of the EIA. It allows all concern to come together and discuss the environment impact through a meaningful and democratic process and brings transparency in the project. In  Samarth Trust v. UOI, W.P. (Civil) 9317 of 2009 the Delhi high court had considered EIAs “a part of participatory justice in which the voice is given to the voiceless and it is like a jan sunwai, where the community is the jury.” The draft notification is to do away with the mandatory process of public consultation for a wide range of projects for e.g. irrigation, acid and fibre manufacturers, bio-medical waste treatment plants, building construction, all projects concerning national defense and security or involving “other strategic considerations” as determined by the central government. The exclusion of public consultation implies that local and indigenous communities will have no representation or platform to raise their voice or grievances. The draft also proposes to reduce the public commenting period from 30 days to 20 days and requires that the public hearing process be completed in 40 days, compared to 45 days under the 2006 notification. The reduction of time would particularly pose a problem in those areas where information is not easily accessible or areas in which people are not that well aware of the process itself.;

Post facto Approval: The draft notification allows for post-facto approval for projects, meaning that the clearances for projects can be awarded even if they have started construction without securing environmental clearances, which violates ‘precautionary principle’ on which the EIA notification is grounded and the orders of the National Green Tribunal which had ruled against post-facto approvals. The Apex Court recently also struck down ex post fact grant of EC in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors, Civil Appeal No. 1526 of 2016, wherein the Court held that the concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA notification dated 27 January 1994… The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision-making process have been completed.  ;

Compliance: The new notification requires the promoter to submit a report only once every year. During this period, certain irreversible environmental, social or health consequences of the project could go unnoticed because of the extended reporting time. However, providing a longer period for filing reports can lead to disastrous consequences. In such a situation, the concerned authority will not have the opportunity to question the promoters for not following the terms of clearance. The only remedy would be to impose a fine or punishment; but that would not reverse the detrimental consequences on the environment.  The notification requires the promoters to file the documents on which the environmental impact is to be assessed. This leaves a lot of room for promoters to pick and choose the data and information which is to be supplied. 

This draft seems to be appeasing the business and economic interests over environmental interests. The draft notification if issued in current format will be a mockery for the country’s environmental jurisprudence. This will make the process of ‘environment clearance’ redundant and a rubber stamp approval. Therefore, the Government needs to revisit the entire draft notification and make its provisions more transparent, democratic, pro environment and in compliance of international norms and Court directions.

 Vaibhav Choudhary, Managing Partner, YHprum Legal.

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Indian environmentalism: Unconstitutional regression

The polluter must pay but he must be made aware of boundaries that are to be followed. Clarity and transparency are required on both sides.

Avishkar Singhvi



Environmentalism is an omnibus construct, far beyond mere conservation and protection of air, soil, water and land. As US First Lady Bird Johnson said: “The environment is where we all meet; where we all have a mutual interest; it is the one thing all of us share.”

A disturbing trend has emerged, of concerted governmental action by way of rule changes and relaxations, degrading the environment with impunity. Two assaults—relaxations in several sectors qua environmental clearances and the generous and indiscriminate diversion of dense jungles for commercial/governmental use—require special mention. Close behind is conscious governmental silence qua pollution and water scarcity issues.

There is a grim failure to discharge the constitutional duty to protect the fundamental rights of citizens to preserve the environment, sidelining of experts, violating principles of non-regression and forgetting that this model cannot be sustainable in the long run because God never provides a free lunch for too long.

India witnesses an extremely high number of violations due to lack of proactive monitoring. It cries out for an environmental regime that has strict and clear standards and penalties for transgressions. The polluter must pay but he must be made aware of lucid boundaries that are to be followed. Clarity and transparency is required on both sides. In a country where the law spells out clear bright lines, there will be minimal need for vigilante “public interest” action which invariably creates serious bottlenecks for honest businesses that have followed due process of law.

 The Union Government amended the parent notification to dispense with Environmental Clearance ( EC) altogether for a large chunk of construction projects. For such categories, there is no requirement of Expert Appraisal (EA) or Environmental Impact Assessment ( EIA), the most crucial features in the process and without which there is mere lip service to the cause. Thankfully the courts stepped in in time and, while noting the complete desecration of the statutory framework as well as the wanton violation of the findings of the Kasturirangan Report, which had recommended the precise opposite, stayed the notifications. Ironically, these notifications are under section 3 of the 1986 Act, which only permits measures aimed solely at improving the quality of the environment and not degrading it. Meanwhile, the new 2020 notification languishes at the draft stage.

Similarly, the mining sector brazenly did away with EC for a large chunk of minor mineral leases and, worse, in the teeth of the Supreme Court’s ratio in Deepak Kumar’s case (2012) which laid down that EC procedures must apply even to small leases. Most mining leases are less than 5 hectares and cluster mining as also breaking up of large into smaller leases is the dominant reality in India. For such small leases, most of the EC processes are now to be dispensed with—yet another red flag egregiously crossed. The NGT sternly deprecated such practices and the matter is now before the apex Court. The fact that courts have somehow intervened to protect fragile environmental interests does not detract from bad intentioned and anti environmental attempts by the government to obviate scrutiny through venerable and tested tools like EIA and EA to achieve so called developmental goals in a tearing hurry.

 In the draft 2020 regime, for example, for the construction sector, a miniscule, almost non-existent level of scrutiny is proposed by way of an Environment Permission and standard EIA procedures are rendered inapplicable. Changing the name does not change the game, and most experts can see that this nomenclature change as a blatant, camouflaged relaxation.

The draft also introduces ‘ex-post facto clearances’ for violators, which militates against the very idea of a sequential process of Impact assessment study, management plans followed by an Environmental clearance after full application of mind. Such innovative amendments treat the sanctity of the environmental space with contempt and perform a far more dangerous function: post facto legitimation of illegalities. The timeless concept of once a forest always a forest has also been systematically undermined.

For Minor minerals, the draft proposes that ‘a one page deemed environmental permission’ would be enough, despite the existing decisions and the onerous mandate of the existing regime. Permission is virtually automatic, on the basis of a short questionnaire. These new concepts are introduced to circumvent the law and help powerful lobbies.

 These relaxations sync “admirably” with the projects undertaken by the government eg. Central Vista, Aarey colony, Netaji Nagar, Kidwai nagar, diversion of thousands of sq. km of forest land and so on. There is one common link. The government is the pro active player, playing a significant desecratory role and not the private sector! The age old dilemma rears its ugly head with no real answers: who will guard the guardians?

Corona, the scourge thrust upon us, has many benefits and lessons for those who want to be aware and wish to absorb. Minimizing the use of paper, virtual interactions, reduced transportation and energy costs, humongously reduced travel, minimalistic living, conserving our natural resources, decluttering, are all the compelling lessons of Covid, which should constitute the new normal. Instead, the government is regressing in the opposite direction qua environmentalism!

Campaigns such as Swachh Bharat or banning single use plastics, individually virtuous and desirable, seem hollow and hypocritical if the same governments who propound them, defile and deface the environment with such relaxations and such egregiously consuming mega projects. “Ease of doing business” cannot trump fundamentals relating to established and time tested environmental processes. If checks and balances seeking to ensure that projects are environmentally sustainable are diluted to vanishing point, then the consequence can only be irretrievable damage.

Pope John Paul II’s anguish must be remembered by all: “The Earth will not continue to offer its harvest, except with faithful stewardship. We cannot say we love the land and then take steps to destroy it for use by future generations.”

(The author is an Advocate, Supreme Court of India.)

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