Tuesday, January 17, 2017

Social Justice Bench in Supreme Court

Social Justice Bench is back in Supreme Court; Ten Miscellaneous cases will be heard on Regular days

Justice JS Khehar Has introduced some important changes in the apex court.

Non-miscellaneous days (Tuesdays, Wednesday and Thursdays) will now have  ten miscellaneous cases listed for hearing.

As Par circular published on Supreme Court website today,

“Tuesdays, Wednesdays and Thursdays, which were originally non-miscellaneous days, in addition to Regular Hearing matters, ten after Notice short matters including Fresh Matters will be listed.”

The circular states that an Advance List of Fresh Matters would be listed on Monday and Friday be uploaded on the Supreme Court Website on every Tuesday and Friday.

The notice also sets out the schedule for uploading the lists. It mentions that an Advance List of matters including Fresh Matters will now be listed on Wednesday and Thursday and that Final List for Tuesday shall be uploaded on every Saturday.

The notice will come into effect from next week.

Besides the above, another important development is the re-introduction of Social Justice Bench. The CJI said in court today that the Bench would sit on Fridays at 2 pm.

The Social Justice Bench was first introduced by Chief Justice HL Dattu in the year 2014.

But was discontinued by Justice TS Thakur when he took over from Justice Dattu.


Transfer of Petition in India:
How to file for Transferring a case from on district court of one state to another or from one high court to another, the entire process has been explained in great detail

SC allows Mumbai woman to terminate 24-week pregnancy due to life risk

An ultrasound scan had revealed that the foetus had a serious defect

The Supreme Court on Monday allowed a 22-year-old woman from Dombivali to abort her 24-week foetus on medical grounds. The court had ordered a panel of doctors at the civic-run KEM Hospital to re-examine the case and submit a report after the woman moved the court last week.

Panel reaches consensus
An ultrasound scan had revealed that the foetus had anencephaly, a serious birth defect in which parts of the brain and skull remain undeveloped. The panel of seven doctors came to the conclusion that abortion was advisable. The Supreme Court has ordered that the procedure be carried out in KEM Hospital.

“It was a tough phase for us. I hope no other couple has to go through such trauma,” said Santosh Pal, the woman’s husband. “She has not been eating well since she learnt about the baby’s illness.” Mr. Pal, who works as a typist, will admit his wife to the hospital on Tuesday, where labour will be induced through medication for abortion.

Two doctors in Dombivali had diagnosed the woman with fetal anomaly. However, the current abortion law allows termination of pregnancy only up to 20 weeks. Then Mr. Pal’s brother-in-law, a doctor, suggested that the couple visit gynaecologist Dr. Sangeeta Pikale in Mahim.

“Had it not been for Dr. Pikale, we would not have known which way to go. She directed us throughout,” said Mr. Pal.

‘Need for guidelines’
As a precedent, Dr. Pikale used a case where a rape victim with an anomalous foetus was allowed to terminate her pregnancy last year. Dr. Pikale said, “But all such patients are not going to reach me always. There has to be a process in place so that such cases do not have to be directed to the court every time.” She said broad policy guidelines needed be drawn soon.

Doctors say pregnancy up to 12 weeks is terminated though a procedure carried out under anaesthesia while pregnancy up to seven weeks is terminated under medication. “The procedure itself is traumatising. The court proceedings only add to the patient’s trauma,” said gynaecologist Dr. Nikhil Datar, who gave an expert opinion in the petition.

“I am happy that the patient has got justice. But I am now concerned about at least three other such women who have sought my help. Why do they have to keep going to the court every time? I hope that this petition brings some guidelines in place.”

‘Pleased with verdict’
Medical activists have been pushing for reforms. Several amendments drafted in the Medical Termination of Pregnancy Bill are yet to be passed. “But we are pleased with the order. The abortion rights of women are slowly getting some attention,” said advocate Colin Gonsalves of the Human Rights Law Network, who fought the woman’s case.

“Unsafe abortions account for 15 per cent of the total maternal mortality rate. Just because our law is obsolete, patients often land up in illegal places where unqualified persons carry out abortions.”

Sources:
Judiciary & Statute Vs Right of Women to Terminate Pregnancy
Right to Abortion
Medical Termination of Pregnancy Act, 1971
How section 312 of IPC read with the Medical termination of Pregnancy Act, 1971 infringe the right to life of the mother?
Legalize Abortion In India
MTP Act- The Flag Bearer of Unconstitutionality

Monday, January 16, 2017

Delhi High Court takes ‘internet blocking’ jurisprudence back to the stone ages

Just as the Bombay High Court was restoring some sense of sanity by streamlining ‘blocking’ orders demanded by copyright owners against online pirates, a Division Bench of the Delhi High Court has passed orders allowing for the blocking of entire websites rather than specific URLs. This order passed by the Division Bench of the Delhi High Court on July 29, 2016 is weak on law and appears to be grossly erroneous given the specific facts of this case.
Let’s start from the beginning. On December 2, 2014 the plaintiff, Star India Pvt. Ltd. approached the Delhi High Court seeking ‘John Doe’ blocking orders against 73 websites to restrain them from streaming online, Star India’s broadcast signal of the Indo-Australian cricket series consisting of three test matches. Since Star India had approached the High Court even before the series began, it did not have any evidence that these 73 websites were in fact infringing its broadcast signal – this is very different from the orders sought by movie studios, all of whom usually go to court with actual proof of infringement. Star instead argued that there was enough past evidence to establish that these websites were streaming pirated content in the past. Thus apprehending that these websites would violate its broadcast rights in the future once the match started, Star India sought pre-emptive action against the 73 websites. Since there was no question of providing the court with specific URLs because the cricket series had not even begun, Star India sought the blocking of entire websites. It sought to justify such sweeping blocking orders by arguing that URLs were very easy to manipulate. The court notes Star’s submissions as follows:
It is submitted that in case a URL is blocked or disabled, it is extremely easy for the website to provide access to the blocked content through another URL since a mere change of a character in the URL string will results in a completely new URL. Consequently, it is extremely easy for a website to circumvent and thus nullify any order that directs blocking of specific URLs since such websites can very easily provide access to the same content by merely changing one character in the URL string. Thus, unless access to the entire website of the named and unnamed defendants is blocked, there is no alternate and efficient remedy that is open to the plaintiff.

As is usually the case with the Delhi High Court, it granted a sweeping injunction ordering 17 defendants (presumably ISPs) to block 73 websites. The cherry on the cake (although not entirely unusual) is the direction given to the Central Government to ensure compliance with the court’s order – Star India justified this demand on the grounds that the Licence Agreements between the govt. and the ISPs required the latter to ensure that copyright infringing content was not carried on its network.
While giving the Plaintiff everything that it prayed for, Justice S.P. Garg did not think it necessary to provide any safeguards in his order despite the fact that he was passing pre-emptive orders on the mere apprehension that these 73 websites were going to infringe Star’s broadcast reproduction right under Section 37 of the Copyright Act. He also does not explain why the Government should be required to ensure compliance with the court’s order when there is nothing in the law requiring the Central Government to enforce the private IP rights of the plaintiff unless as provided in the Copyright Act – the plaintiff’s argument on the licence agreement is naïve. A licence agreement between the government and a private party cannot be enforced through a civil suit by a third party which is not signatory to the licence.
The order by Justice S.P Garg on December 2, 2014 was passed ex-parte without hearing either the ISPs or the government despite a statutory requirement under Section 80 of CPC requiring the govt. to be heard in any suit where it is made a party. When the court’s order was served on the Central Government, it filed an appeal before a Division Bench of the Delhi High Court requesting for the order to be modified. The Division Bench of the High Court modified the Single Judge’s order on March 10, 2016 to restrict blocking to only URLs and not entire websites – it also ordered the government agency CERT-IND to issue instructions on blocking of websites.
The first problem with this order is that the initial cause of action i.e. the live webcast of the series did not survive any more – the last match was played on December 26, 2014. Thus once the matches were over, the case should have been closed unless Star was seeking damages – given that Star claimed that it could not even get responses to its legal notices, it is unlikely that it would have sought damages from these websites.
The second problem is that even the Division Bench fails utterly to justify in law, its order to CERT-IND, to get involved in enforcing private IP rights – nothing in the law requires the government to enforce the court’s orders to block websites when the technical capability to do so lies with ISPs.
After the Division Bench’s order on March 10, 2016; Star India filed a review petition seeking a modification of the Division Bench’s order. As I mentioned earlier, the matches were over – the case should have been closed because from the Single Judge’s order it appeared that Star India only wanted to stop the live webcast of the cricket series. The Division Bench should have posed this question to Star India. Rather than ask these difficult questions, the Division Bench in its order dated July 29, 2016 did a reverse flip with very little reasoning and agreed with Star India that since URLs were easy to change, entire websites could be blocked. There is not even a whisper of any safeguards in the entire order. Contrast this sledgehammer approach by the Delhi High Court to Justice Gautam Patel who used a fine scalpel to fashion well thought out safeguards while issuing John Doe orders – Rahul had written an excellent post on that order over here.
At the very least, one would have expected the Delhi High Court to lay down certain criteria to determine the circumstances in which an entire website could be blocked – let’s not forget this case was limited to an apprehension of possible breach of IP rights by real time live webcasts in the future – what if it turned out that the website was not even live streaming the match once it started? The court should have devised a mechanism whereby Star India would be required to provide evidence after the match began to establish whether the websites in question were actually violating its broadcast rights and if in case a website was streaming content, the court should be appraised of the nature of the website i.e. whether it was an intermediary platform or a standalone website and then determine if it was possible to isolate the URLs or whether it was possible to elicit a reaction from the website owner to block the offending URLs. Different kinds of platforms require different responses from the courts. Courts cannot pass the same kind of orders in cases where the plaintiff has evidence of illegal downloads and in cases where the plaintiff merely apprehends evidence of future infringement by live webcasts.
 This review order dated July 29, 2016 also deals with the issue of the govt. being compelled to enforce the blocking order. The Court’s reasoning is as follows:
On the issue of whether the appellant could be directed to ensure compliance with the blocking order directed against the service providers, suffice it to state that it is the duty of the Government, its instrumentalities and agencies to assist in the enforcement of orders passed by the Courts.
This is an incomplete and incorrect articulation of law. The Copyright Act lays down a specific procedure whereby the government can get involved in enforcing broadcast rights through the filing of criminal complaints – Star India did not choose the criminal route of enforcement. It consciously chose the civil route and there is no obligation in law for the central government to get involved in civil disputes.
Interestingly, the order also reveals that ISPs like Airtel had demanded that the Central Government be compelled to issue such directions to ISPs because the company was worried about being sued for breach of contract by both users and website owners (this has happened in the past with Airtel being fined in consumer court) – the order does not clearly mention the logic of why Airtel favoured govt. orders over court orders but I am presuming that while dealing with the court, ISPs end up interpreting court orders and being threatened with contempt proceedings by the IP owners who will seek the most expansive interpretation of the court order. Having to merely enforce govt. orders frees the ISPs from the burden of interpreting the court’s orders and reduces their exposure to contempt proceedings.
To briefly summarise – IP enforcement on the internet in India is a mess with the Delhi High Court determined to drag us back to the darkness, while the Bombay High Court tries to show us the light. For those of you interested in reading more on the issue, Kian Ganz has a nice piece in the Mint, exploring some of these issues in greater detail.
http://legalserviceindia.com/cyber/cyber.htm

Sunday, January 15, 2017

Delhi High Court Restores Infringement Suit

NEW DELHI: Haste makes waste. This was said by the Delhi high court while restoring a suit of trademark infringement that had been dismissed by a single judge at the admission stage itself.
 A bench of Justices B D Ahmed and Ashutosh Kumar reminded the courts that quest for speedy justice should not result in "hasty decisions."
HC''s observations came after it found that the single judge tossed out the trademark infringement suit at the entry-level threshold, relying largely on his own "recollections" and conclusions about the merit of the claim instead of first hearing arguments followed by rebuttal by plaintiff and defendant.
 "No doubt, 'docket explosion' is a problem for the judicial system to contend with. But, that does not concern the individual litigant who comes to court seeking justice. Our endeavour must never be to deny justice to anyone in our overzealousness to dispose cases. As Benjamin Franklin said — Great haste makes great waste. Courts, while endeavouring to deliver speedy justice, must not hand out hasty decisions without any concern for justice," the bench noted, sending the suit back to the single judge for hearing.
 The division bench said in many cases a court may feel that the case of a plaintiff is weak, "but that is no ground whatsoever for throwing out the suit lock, stock and barrel without giving the plaintiff an opportunity of proving and establishing its case."
 A hotel chain had filed the suit against another hotel seeking permanent injunction on the ground that the latter were using the trade mark 'Privee' that was identical to or deceptively similar to the trade mark of the plaintiffs — MBD Prive and Prive.
 In its suit, the company alleged trademark infringement, dilution of goodwill, unfair competition and sought an order in its favour. However, the single judge, without issuing any summons to the defendants, dismissed the suit after going into the merits of the claims raised by the plaintiffs. The single judge observed that suits that are doomed to fail and of which there is no chance of success should be dismissed at whatever stage the court finds it to be so.
 The bigger bench disapproved of the order noting: "What the learned single judge has done is to have dismissed the suit of the appellants/plaintiffs at the admission stage itself without issuance of summons and this, we are afraid, is contrary to the provisions of the statute."
https://m.facebook.com/story.php?story_fbid=1504271192935432&substory_index=0&id=190798910949340

Wednesday, January 11, 2017

No Detention Policy: An Appraisal

No Detention Policy: An Appraisal
Section 16 of the RTE Act categorically lays down that “No child admitted in a school shall be held back in any class or expelled from the school till the completion of elementary education.” Under this policy, the students up to class VIII are automatically promoted to the next class without being held back even if they do not get a passing grade.

Friday, January 06, 2017

Quasi-Federal Nature of Indian Constitution

Quasi-Federal Nature of Indian Constitution

Federal Features of the Indian Constitution

Constitution is suprema lex. Constitution is the supreme law of land in India, law wherein involves rules, regulations, bylaws, notifications, orders, ordinances and even the customs having a force of law. A federal state derives its existence from the Constitution.

Dishonour of Cheque its Consequences Under Negotiable Instruments Act As Amended Upto

Dishonour of Cheque its Consequences Under Negotiable Instruments Act As Amended Upto

What is Negotiable Instruments?
The word negotiable Instruments means transferable by delivery and the word instruments means a written document by which a right is created in favour of person. It is a document guaranteeing the payment of a specific amount of money, either on demand or at a set time with the payee named on the document. It is an indebtedness to pay amount and the negotiable instrument is an unconditional guarantee for the same.

Wednesday, January 04, 2017

Freedom of Speech and Expression

Freedom of Speech and Expression

Section 499 of the Indian Penal Code: “Defamation”

Whoever by words either spoken or intended to be read or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harmor knowing or having reason to believe that such imputation will harm the reputation of such person, is said except in the cases hereinafter expected to defame that person.

Tuesday, January 03, 2017

GST: New Dimensions in Indian Tax System

GST: New Dimensions in Indian Tax System
An attempt has been made under this paper to examine the meaning, scope, advantages and disadvantages of the concept of ‘Goods and Services Tax’ (GST). The need of tax reform in Indian tax system had risen from time to time. Various taxes have been imposed on goods starting from manufacturing till it reaches to consumer (especially indirect tax).