Tuesday, June 20, 2017

SC stays NGT order on demolition of resorts in Kasauli


Supreme Court on Friday stayed the National Green Tribunal (NGT) order directing demolition of five resorts in Kasauli in Himachal Pradesh, which were either constructed or expanded without adequate approvals from authorities.



Although a bench of Justices R K Agrawal and Sanjay Kishan Kaul said the resort owners had to justify construction without approval from local authorities, but granted interim stay on the NGT order. 


The NGT had on May 30 directed Bird's View Resort, Chelsea Resorts, Hotel Pine View, Narayani Guest House and Nilgiri Hotel to demolish their "unauthorised structures". The tribunal had also directed the resorts to pay up for the environmental destruction caused by them. The Bird's View Hotel was directed to pay an environmental compensation of Rs 5 lakh while Chelsea Resorts, Hotel Pine View, Narayani Guest House were directed to pay Rs 7 lakh each. Nilgiri hotel was directed to pay Rs 10 lakh.



"We direct that the unauthorised and illegal construction raised in violation of the planning laws affecting environment, ecology and natural resources adversely, should be demolished in terms of the provisions of the NGT Act of 2010," the NGT had said.


The tribunal had passed the order on a plea filed by Society for Preservation of Kasauli and its Environs (SPOKE) alleging that Bird's View Hotel added a 3-storey structure adjoining the existing building without obtaining prior approval from Town & Country Planner (TCP) and Chelsea Resorts made four building blocks instead of two approved by the TCP.



It had alleged that Hotel Pine View constructed a 7-storey structure in two inter-connecting building blocks as against only three storey in one block that was approved. Narayani Guest House constructed a 6-storey building as against the approval of three storey, while Nilgiri Hotel constructed four extra storeys, it had contended before the tribunal.


Delhi High Court grants Injunction Against Excel Telesonic

Cloudtail India Pvt. Ltd, the joint venture of Amazon, has received an injunction from the Delhi High Court against telecom technology company Excel Telesonic. Excel Telesonic has been asked to stop using the alleged “deceptively similar name” – ‘Cloudtele.’

Cloudtail had taken the company to court last month and sought damages worth INR 1 Cr.

Cloudtail sought a “decree of permanent injunction restraining the defendant, its directors, officers, servants and agents and all others acting for and on their behalf from using, depicting, displaying in any manner whatsoever, the trademark trade name Cloudtele or any other deceptively similar trademark, as a part of their trading name company name.”

Mumbai-based Excel Telesonic was founded in 2010. It is a telecom service company that provides fibre network services for telecom operators in South Mumbai. The company counts Airtel and Idea as clients.

In the suit, Cloudtail mentioned that its brand is a ‘well-known mark,’ and the use of Cloudtele by Excel Telesonic amounted to an infringement of its registered trademark. The company also asked for either “destruction“ of the domain name ‘http:www.cloudtele.com’ or for a transfer to the ecommerce seller.

Last month, at the last hearing, lawyers for Cloudtele said that the company will stop using the name ‘Cloudtele’ within the next four months. They also said that the company would only retain the word ‘cloud’ but will either prefix or suffix it with any other word and not ‘tail’ or ‘tele.’

In another instance of trademark infringement, US-based Paypal legally opposed Paytm for registering a ‘deceptively similar’ trademark. The filing for trademark opposition states that “the impugned trade mark is deceptively and confusingly similar to the opponent’s earlier trade mark inasmuch as the applicant has slavishly adopted the two-tone blue colour scheme of the opponent in its entirety.” In March 2017, a designer in Bengaluru claimed image copyright infringement of a line art image of Vidhana Soudha by cab aggregator Ola for a citywide billboard campaign promoting Ola Auto.

Cloudtail India Pvt. Ltd is a joint venture between Amazon Asia and Infosys founder NR Narayana Murthy’s private investment fund Catamaran Ventures.

Permitted User Cannot Institute a Suit for Trademark Infringement, Suit Dismissed by Delhi High Court

The plaintiff/respondent no. 1, Exxon Mobile Corporation, is the registered proprietor of the trademark Exxon and does not have an office in India. Plaintiff no. 2, which is a wholly owned subsidiary of Plaintiff no. 1, has an office in Delhi. And is a permitted user of the mark.
A permitted user of the mark is a person who is connected with the goods or services to which the mark relates in the course of trade and is authorized in writing to use the mark.
The defendant is the registered proprietor of the trademark ‘Exon Engineering Corporation’ and has an office in Kolkata.
Relying on Section 134(2) of the Trademarks Act, 1999 (“the Act”), the plaintiff filed the suit in Delhi on the ground that plaintiff no. 2 has an office in Delhi. Since Section 134(2) of the Act empowers a plaintiff to institute a suit for trademark infringement at any place where its office is located, the plaintiffs contended that the Delhi High Court was vested with the jurisdiction to adjudicate upon the matter.
Before the single judge, the Arguments of the plaintiffs were twofold.
First, arguing that Section 52 of the Act empowers a registered user of a mark to institute a suit for infringement, the plaintiffs contended that there was no reason why a permitted user of the mark would not be similarly empowered to institute such a suit.
Second, relying on Section 48(2) of the Act, they contended that the use of a mark by a permitted user would be deemed to be use by the registered proprietor. This being the case, owing to the fact that the permitted user of the mark i.e. plaintiff no. 2 had an office in Delhi, its use of the mark would be deemed to be use of the mark by the first plaintiff in Delhi.
On the other hand, the defendant argued that it was carrying on business in Kolkata, so a court in Delhi would not have jurisdiction to adjudicate upon the matter. Further, in light of the fact that Section 53 of the Act imposes an express embargo on the institution of a suit by a permitted user, plaintiff no. 2 could not have instituted the suit. Finally, since plaintiff no. 1 did not have an office in Delhi, Section 134(2) could not come to its aid.
Ruling in favour of the plaintiffs, the single judge held that the explanation to Section 134(2) of the Act, which delineates the categories of persons who are empowered to institute a suit, must be construed in an inclusive and liberal fashion. This being the case, a permitted user would also fall within the four squares of the term ‘person’ and would, therefore, be empowered to press Section 134(2) into service.
Relying on the apex court’s holding in the case of Exphar SA versus Eupharma Labratories, which involved the interpretation of Section 62(2) of the Copyright Act, the single judge held that, in light of the fact that the person instituting the suit i.e. plaintiff no. 2 had an office in Delhi, the suit could go forward.
Finally, the single judge also accepted the plaintiff’s contention that plaintiff no. 1 would be deemed to use the mark in Delhi owing to its use by its wholly owned subsidiary.
The defendant-Appellant appealed before the Division Bench against this judgment, resulting in the judgment under consideration.
Decision of Court:
The Court commenced its analysis by noting that the single judge’s reliance on the Exphar case was inapposite in light of the fact that there is a critical difference in the principles governing the construction of the term ‘person instituting a suit’ in the Copyright Act and Trademark Act.
More specifically, the terms ‘permitted user’, ‘registered user’, and ‘proprietor of the registered trademark’ are unique to the Trademark Act and are significantly different from and cannot be treated as being on the same footing as an exclusive licensee under the Copyright Act.
Thereafter, on a perusal of the text of Section 53, the Court held that the Section clearly prohibits a permitted user from instituting a suit for infringement.
Noting the difference between a registered user and a permitted user, the Court held that Section 52(1) authorizes a registered user to institute a suit whereas there is no such enabling provision insofar as a permitted user is concerned.
Holding that the term ‘person’ in the explanation to Section 134(2) must be construed as being inclusive, the Court held that it would nonetheless not include a permitted user within its ambit. The opposite conclusion would clearly be contrary to the terms of the enactment, inasmuch as it would authorize the selfsame thing that Section 53 prohibits.
Since plaintiff no. 2 was not legally empowered to institute the suit, the Court next had to decide if it had jurisdiction to adjudicate upon a suit instituted by plaintiff no. 1.
In order to answer this question, the Court relied on its own judgment in the case of Ultra Home Construction versus Purushottam Kumar Chaubey as per which a court has the jurisdiction to adjudicate upon a matter under the special provisions found in Section 134 of the Act and Section 62 of the Copyright Act in 4 different circumstances. Ritvik has covered the ratio of this case here.
Since the plaintiff does not have a principal place of business in India and the cause of action did not arise in Delhi, the Court held that the factual matrix of this case would not fall within the ambit of any of the four circumstances set forth in Ultrahome.
On this basis, the Court reversed the single judge’s decision and rejected the plaint for lack of jurisdiction.

Thursday, June 15, 2017

Supreme Court of India held that Only Wakf Tribunal Can Decide Whether A Property Is Wakf Or Not

When the main question involved in the suit is whether the suit land is a Wakf property or not, it can be decided only by the Wakf Tribunal, and not by the civil court, the Supreme Court has held in Rajasthan Wakf Board vs Devki Nandan Pathak.
A bench comprising Justice AM Sapre and Justice RK Agrawal also held that matters falling under Sections 51 and 52 of the Wakf Act are also required to be decided by the tribunal and not by the civil court. The court has now remanded the matter to the high court for deciding the revision afresh on merits.
In the instant case, the Wakf Tribunal, on a plea by Wakf Board, had granted permanent injunction in respect of the property in question and declared the sale deed executed in favour of the other party ‘null and void’. The high court set aside this order holding that the tribunal has no jurisdiction in the matter and on the ground that since no order was made by any authority under the said Act, the applicant before the Wakf Tribunal could not be said to be the person aggrieved also as contemplated in Section 83(2) of the said Act and hence the tribunal would have no jurisdiction to determine the issue involved in the suit.
Relying on an apex court judgment, the high court observed that in so far as the relief of cancellation of sale deed is concerned, it is to be tried by the civil court for the reason that it is not covered by Section 6 or 7 of the Wakf Act.

Supreme Court Limits CCI’s Penalty Powers: “Relevant Turnover” Upheld

upheld the principle of “relevant turnover” for determination of penalties in competition law contraventions; and settled a critical issue in India’s antitrust jurisprudence, which was heavily debated amongst all stakeholders for over five years.
Background
The above ruling arises out of a proceeding involving an alleged contravention of Section 3(3) of the Competition Act, 2002 (Competition Act) in the public procurement of Aluminium Phosphide (ALP) Tablets by the Food Corporation of India (FCI). The Competition Commission of India (CCI) found a violation of Section 3(3) of the Competition Act and imposed a penalty at the rate of 9% of the total turnover of the concerned ALP manufacturers – namely, Excel Corp Care Limited (Excel), United Phosphorus Limited (UPL) and Sandhya Organic Chemicals Private Limited (Sandhya).
The Competition Appellate Tribunal (COMPAT) in its final order upheld the CCI’s order as to the existence of the contravention under the Competition Act. However, it significantly reduced the penalties imposed by the CCI. COMPAT’s modification of penalties was based on the principle that the reference to the term “turnover” in Section 27(b)[1] of the Competition Act would, in the facts and circumstances of the case, mean “relevant turnover”, i.e. turnover derived from the sales of goods or services, which are found to be the subject of contravention.
COMPAT’s order was challenged by the CCI before the Supreme Court. CCI contended that the term “turnover” as used in the Competition Act must always be interpreted as “total turnover” of the enterprise in contravention. The CCI contended that the COMPAT had added words to the Competition Act by inserting the word “relevant” before the term “turnover”. ALP tablets manufacturers, led by Excel, on the other hand, opposed the same by contending that it was the interpretation extended by the CCI, which led to adding the word “total” or “entire” before the term “turnover”.
Key Findings
Ultimately, the Supreme Court held that the imposition of penalty adopting the criteria of “relevant turnover” will be “more in tune with ethos of the Act and the legal principles which surround matters pertaining to imposition of penalties.”
Role of Equity in Penalty Imposition
The Supreme Court held that accepting the CCI’s interpretation of the term “turnover” as “total turnover” in all situations would “bring about very inequitable results”. Relying on various judgments stating that interpretation that brings out inequitable or absurd results has to be eschewed, the Supreme Court held that the interpretation extended by CCI does not commend acceptance.
In this regard, the Supreme Court took note of illustrations demonstrating that imposition of penalty on the basis of “total turnover” in all cases would inequitably discriminate against enterprises committing the same contravention depending on the manner in which their product/business lines are structured.
Strict Interpretation  
The Supreme Court also justified its conclusion and found that the principle postulating strict interpretation of “penal” statutes would also support and supplement the consideration of “relevant turnover” rather than “total turnover”.
In light of the principle of strict interpretation (relying on a recent Constitution Bench decision in Abhiram Singh and Ors v C.D. Commachen (Dead) by L.Rs and Ors[2] ) the Supreme Court held that, “even if two interpretations are possible, the one that leans in favour of infringer has to be adopted” and that there was “no justification for including other products of an enterprise for the purpose of imposing penalty” when the agreement leading to contravention involves one product.
Proportionality and Purposive Interpretation
As regards the arguments of the CCI on the objective to discourage and stop anti-competitive practices, the Supreme Court held, “the penalty cannot be disproportionate and it should not lead to shocking results”. It was held that the aim of deterrence cannot be justified to give an interpretation that may lead to “the death of the entity” itself. The Supreme Court emphasised that the doctrine of proportionality, which is based on equality and rationality, is a “constitutionally protected right which can be traced to Article 14 as well as Article 21 of the Constitution”.
The Supreme Court noticed that the doctrine of purposive interpretation and doctrine of proportionality have certain overlaps. It held that the purpose of the Competition Act cannot be to “finish” certain enterprises. Relying on the South African judgment in Southern Pipelines, the Supreme Court repeated that “there is a legislative link between the damage caused and the profits which accrue from the cartel activity”. Accordingly, the purposive interpretation of the term “turnover”, the Supreme Court found, also favours consideration of “relevant turnover”.
The concurring judgment by Hon’ble Mr. Justice N.V. Ramana held that “proportionality needs to be imbibed into any penalty imposed under Section 27” of the Competition Act. Accordingly, it laid down step-wise methodology to be followed by the CCI in imposing penalties.
Step-wise Methodology for Penalty Imposition
Step 1: Determination of Relevant Turnover
“Relevant turnover” refers to the “entity’s turnover pertaining to products and services that have been affected by such contravention”. The Supreme Court has clarified that the above definition is not exhaustive.
Step 2: Determination of Appropriate Percentage of Penalty Based on Aggravating and Mitigating Circumstances  
The Supreme Court provided an illustrative list of factors to be considered when determining such percentage.
Final Step: The penalty imposed “should not be more than overall cap of 10% of the entity’s relevant turnover”.
Key Takeaways
The Supreme Court’s approach in this judgment indicates a healthy respect for foreign jurisprudence, which is tempered by the motivation to evolve indigenous jurisprudence based on, and appropriate to, the Indian constitutional and legal framework.
  • The judgment lays the foundation for penalty imposition under the competition law regime in India, leading to greater certainty and transparency in penalty imposition. The same will benefit all stakeholders functioning within the framework of the Competition Act.
  • This judgment, from the highest court of the land, is likely to be followed in all cases where the issue of “relevant turnover” is pending or raised either before the DG/CCI or at the Appellate Stage or even before the Supreme Court itself. 

Supreme Court of India's on Aadhar PAN Link


1.    The Hon’ble Supreme Court of India in its Landmark Judgement has upheld Section139AA of the Income Tax Act,1961 as constitutionally valid which required quoting of the Aadhaar number in  applying for  PAN as well as for filing  of income tax returns.

2.    The Hon’ble Court also held that the “Parliament was fully competent to enact Section 139AA of the Act and its authority to make this law was not diluted by the orders of this Court.” Therefore, no violation of the earlier Supreme Court orders were found in enacting the provision.

3.    The Hon’ble Court has also held that Section 139AA of the Act is not discriminatory nor it offends equality clause enshrined in Article 14 of the Constitution.
4.    Section 139AA is also not violative of Article 19(1)(g) of the Constitution in so far as it mandates giving of Aadhaar number for applying PAN and in the income tax returns and linking PAN  with Aadhaar number. 
5.    Section 139AA(1) of the Income Tax Act,1961 as introduced  by the Finance Act, 2017 provides for mandatory quoting of Aadhaar/Enrolment ID of Aadhaar application form, for filing of return of income and for making an application for allotment of PAN with effect from 1st July, 2017.

6.    Section 139AA(2) of the Income Tax Act,1961 provides that every person who has been allotted PAN as on the 1st day of July, 2017, and who is eligible to obtain Aadhaar, shall intimate his Aadhaar on or before a date to be notified by the Central Government. The proviso to section 139AA (2) provides that in case of non-intimation of Aadhaar, the PAN allotted to the person shall be deemed to be invalid from a date to be notified by the Central Government.

7.    The Hon’ble Supreme Court has upheld Section 139AA(1) which mandatorily requires quoting of Aadhaar for new PAN applications as well as for filing of returns.

8.    The Hon’ble Supreme Court has also upheld Section 139AA(2) which requires that the Aadhaar number must be intimated to the prescribed authority for the purpose of linking with PAN.

         9.    It is only the proviso to Section 139AA(2) where the Supreme Court has granted a partial stay for the time being pending resolution of the other cases before the larger bench of the Supreme Court. The Hon’ble  Supreme Court has unequivocally stated as follows:
      “125. Having said so, it becomes clear from the aforesaid discussion that those who are not PAN holders, while applying for PAN, they are required to give Aadhaar number.  This is the stipulation of sub-section (1) of Section 139AA, which we have already upheld.  At the same time, as far as existing PAN holders are concerned, since the impugned provisions are yet to be considered on the touchstone of Article 21 of the Constitution, including on the debate around Right to Privacy and human dignity, etc. as limbs of Article 21, we are of the opinion that till the aforesaid aspect of Article 21 is decided by the Constitution Bench a partial stay of the aforesaid proviso is necessary.  Those who have already enrolled themselves under Aadhaar scheme would comply with the requirement of sub-section (2) of Section 139AA of the Act.  Those who still want to enrol are free to do so.  However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being.  It is only to facilitate other transactions which are mentioned in Rule 114B of the Rules.  We are adopting this course of action for more than one reason.  We are saying so because of very severe consequences that entail in not adhering to the requirement of sub-section (2) of Section 139AA of the Act.  A person who is holder of PAN and if his PAN is invalidated, he is bound to suffer immensely in his day to day dealings, which situation should be avoided till the Constitution Bench authoritatively determines the argument of Article 21 of the Constitution.  Since we are adopting this course of action, in the interregnum, it would be permissible for the Parliament to consider as to whether there is a need to tone down the effect of the said proviso by limiting the consequences.”
10.  Finally the effect of the judgement is as following 
   (i)     From July 1, 2017 onwards, every person eligible to obtain Aadhaar must quote their Aadhaar number or their Aadhaar Enrolment ID number for filing of Income Tax Returns as well as for applications for PAN;
 (ii)  Everyone who has been allotted permanent account number as on the 1st day of July, 2017, and who has Aadhaar number or  is eligible to obtain Aadhaar number, shall intimate his Aadhaar number to  income tax authorities for the purpose of linking PAN with Aadhaar;
 (iii) However, for non-compliance of the above point No.(ii), only a partial relief  by the Court has been given to those who do not have Aadhaar and who do not wish to obtain Aadhaar for the time being, that their PAN will not be cancelled  so  that other consequences under the Income Tax Act for failing to quote PAN may not arise.

persistent effort of the wife to constrain her husband to be separated from the family constitutes an act of ‘cruelty’ to grant divorce.


The Supreme Court of India in Narendra vs. K.Meena has held that persistent effort of the wife to constrain her husband to be separated from the family constitutes an act of ‘cruelty’ to grant divorce.
The Bench comprising Justice Anil R. Dave and Justice L. Nageswara Rao also held that leveling of absolutely false allegations with regard to extra-marital life and repeated threats to commit suicide would also amount to ‘mental cruelty’. The Supreme Court set aside a High Court judgment which had reversed the Trial court order granting divorce to the husband on ground of cruelty.
Repeated threats to commit suicide
Observing that repeated threats to commit suicide amounts to cruelty, the Court observed: “No husband would ever be comfortable with or tolerate such an act by his wife and if the wife succeeds in committing suicide, then one can imagine how a poor husband would get entangled into the clutches of law, which would virtually ruin his sanity, peace of mind, career and probably his entire life. The mere idea with regard to facing legal consequences would put a husband under tremendous stress. The thought itself is distressing.”
Forcing separation from parents
With regard to allegations of cruelty in wife forcing husband to get separated from his parents, the Bench observed: “In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason; she would never insist that her husband should get separated from the family and live only with her…. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the Respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income.”
Wild allegation of extra marital affairs
The Court also observed that to suffer an allegation pertaining to one’s character of having an extra-marital affair is quite torturous for any person – be it a husband or a wife.
Restoring the judgment of Trial court and setting aside the High Court judgment, the Bench said: “The behaviour of the wife appears to be terrifying and horrible. One would find it difficult to live with such a person with tranquility and peace of mind. Such torture would adversely affect the life of the husband.”

Tuesday, February 21, 2017

Marriage under Hindu law is ‘sacrament’, not contract: Delhi High Court

Marriage under the Hindu law is “sacrament” and “not a contract” which can be entered into by executing a deed, Delhi High Court has observed while dismissing a plea by a woman who had challenged an order refusing to declare her as the legally-wedded wife. The woman had approached the court seeking her appointment for job on compassionate ground after the death of her alleged husband, a former sanitation staff in a city government hospital, and a direction to the medical superintendent to release consequential benefits and allow her to join duties.

The high court noted in its judgement that the petitioner had contended that she had married the man by way of execution of a marriage deed in June 1990 without disputing the fact that he was living with his earlier wife, who had died in May 1994. “Since inception, the contention of the appellant (woman) had been that her marriage with the man on June 2, 1990 was performed by way of execution of a marriage deed and an affidavit. It is not disputed by her that the man had a living spouse on June 2, 1990 and she expired on May 11, 1994.

“Under Hindu Law, marriage is a ‘sacrament’ (solemn pledge) and not a contract which can be entered into by execution of a marriage deed. On June 2, 1990 the man was having a living spouse,” Justice Pratibha Rani said. The high court said the lower court had rightly held that the woman cannot claim the status of a legally wedded wife of the man on the strength of the alleged marriage and its order cannot be termed illegal. The woman had claimed she was the man’s widow and after his death, she had applied for appointment on compassionate ground after which she was offered appointment as ‘safai karamchari’ on temporary basis in the hospital.

Later, a show cause notice was served on her asking her to explain the legality and validity of her marriage with the man. She had replied that on the date of death of her husband in February 1997, she was his only wife. The woman’s plea before the trial court was contested by the Delhi government and medial superintendent of the hospital who said that she had misrepresented about being the legally wedded wife of the man. The court, in its verdict, noted that the trial court in its judgement had referred to the earlier order passed by the high court in which it was held that issuance of succession certificate in favour of the petitioner without impleading the legal heirs of the man was of hardly any value.

“It is settled legal position that in second appeal, high court cannot set aside concurrent finding of fact given by the courts below. The second appeal can be entertained only if a substantial question of law is raised. The rationale behind is that appreciation and reappreciation of an evidence must come to an end with the first appeal,” the court noted. “It has been consistent view that high court has no jurisdiction to entertain second appeal merely on the plea that another view is possible on appreciation of relevant evidence available on record,” it said.


http://indianexpress.com/article/india/marriage-under-hindu-law-is-sacrament-not-contract-delhi-high-court-4496819/


Constitution bench to decide petitions on triple talaq: Supreme Court

A five-judge constitution bench would be set up by the Supreme Court to hear and decide on a batch of petitions relating to the practice of triple talaq, 'nikah halala' and polygamy among Muslims.

A bench headed by Chief Justice J S Khehar took on record three sets of issues framed by parties with regard to the cases and said the questions for consideration of the constitution bench would be decided on March 30.

The bench, also comprising Justices N V Ramana and D V Chandrachud, said "the issues are very important. These issues cannot be scuttled".

Referring to the legal issues framed by the Centre, it said all of them relate to the constitutional issues and needed to be dealt by a larger bench.

The bench asked the parties concerned to file their respective written submissions, running not beyond 15 pages, by the next date of hearing, besides the common paper book of case laws to be relied upon by them during the hearing to avoid duplicity.

When a woman lawyer referred to the fate of the apex court judgement in the famous Shah Bano case, the bench said "there are always two sides in a case. We have been deciding cases for last 40 years. We have to go by the law and we would not go beyond the law."

The bench also made it clear that it is willing to sit on Saturdays and Sundays to decide on the issue as it was very important.

During the last hearing, the apex court had said it would decide the issues pertaining to 'legal' aspects of the practices of triple talaq, 'nikah halala' and polygamy among Muslims but not deal with the question whether divorce under Muslim law needs to be supervised by courts as it fell under the legislative domain.

'Nikah halala' means a man cannot remarry a woman after triple talaq unless she has already consummated her marriage with another man and then her new husband dies or divorces her.

The bench headed by the CJI had said "You (lawyers for parties) sit together and finalise the issues to be deliberated upon by us."

The bench had made it clear to the parties concerned that it would not deal with the factual aspects of the particular case and would rather decide the legal issue.

The apex court had said that the question whether divorce under Muslim Personal Law needed to be supervised by either courts or by a court-supervised institutional arbitration fell under the legislative domain.

It, however, allowed lawyers to file small synopsis of cases pertaining to alleged victims of triple talaq.

The Centre had earlier opposed the practice of triple talaq, 'nikah halala' and polygamy among Muslims and favoured a relook on grounds like gender equality and secularism.

Ministry of Law and Justice had referred to constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries.


Responding to a batch of petitions including the one filed by Shayaro Bano challenging the validity of such practices among Muslims, the Centre had first dealt with the right of gender equality under the Constitution.

All India Muslim Personal Law Board, however, had rubbished the stand taken by the Narendra Modi government that the apex court should re-look these practices as they are violative of fundamental rights like gender equality and the ethos of secularism, a key part of the basic structure of the Constitution.


Another prominent Islamic organisation Jamiat Ulema-i- Hind had told the court there is no scope for interference with the Muslim Personal Law in which triple talaq, 'nikah halala' and polygamy are well rooted and stand on much higher pedestal as compared to other customs.


http://timesofindia.indiatimes.com/india/constitution-bench-to-decide-petitions-on-triple-talaq-supreme-court/articleshow/57185261.cms

Tuesday, January 10, 2017

Criminal Defamation law not unconstitutional


In the Year 2016, Supreme Court in Subramanian Swamy vs. Union of India upheld the Constitutional Validity of Sections 499 to 502[ [Chapter XXI]] of Indian Penal Code relating to Criminal Defamation. The Bench comprising of Justices Dipak Misra and PC. Pant held that the right to Life under Article 21 includes right to reputation. The Bench has dismissed the Petitions filed by Subramanian Swamy, Rahul Gandhi and Arvind Kejriwal challenging the law relating to Criminal Defamation in India.

Making it clear that criminal defamation law will remain the statute book, the bench said “reputations cannot be allowed to be sullied on the anvils of free speech as free speech is not absolute. Rght to life and freedom of speech have to be mutually respected.”

Dismissing the Petitions the Bench held as follows;

“In view of the aforesaid analysis, we uphold the constitutional validity of Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure. During the pendency of the Writ Petitions, this Court had directed stay of further proceedings before the trial court. As we declare the provisions to be constitutional, we observe that it will be open to the petitioners to challenge the issue of summons before the High Court either under Article 226 of the Constitution of India or Section 482 CrPC, as advised and seek appropriate relief and for the said purpose, we grant eight weeks time to the petitioners. The interim protection granted by this Court shall remain in force for a period of eight weeks. However, it is made clear that, if any of the petitioners has already approached the High Court and also become unsuccessful before this Court, he shall face trial and put forth his defence in accordance with law”.

The court also reminded the petitioners about the reasonable restriction in the Freedom of speech and expression.

Challenging constitutional validity of criminal defamation law the three leaders contended that rather than protecting individual reputation, these sections have a chilling effect on free speech. All of them argued that the penal provisions conceived in the British era are now “outmoded” and inconsistent with the right to freedom of speech and expression. The decision meant that the defamation cases against the three leaders will be revived and they must contest it in the lower courts. Earlier the SC had stayed them. The court gave the three political leaders 8 weeks time to challenge the pending criminal defamation case against them in respective HCs or face trial.


The SC has in fact upheld each of Centre’s arguments in support of the criminal defamation law Justifying the penal provisions, Centre had said there will be anarchy in the society and everyone will think he has a right to hurl abuses if the criminal defamation is repealed as a penal offence Arguing for retention of criminal defamation in the Indian Penal Code , Attorney General Mukul Rohatgi had said that punitive provisions are more relevant in modern times in view of the wide sweep of Internet and social media where every statement can reach millions of people.