The Supreme Court on Tuesday stayed the order passed by the Patna High Court last month in the Muzaffarpur shelter home sexual abuses case, wherein the High Court had directed Special Director, CBI, New Delhi to monitor the progress of the probe, and had left it open for him to constitute a fresh team for further investigation.

The Apex Court bench comprising Justice MB Lokur and Justice Deepak Gupta opined that changing the CBI team at this stage would be detrimental to the ongoing investigation.

“We don't see any reason why the existing CBI team, probing the Muzaffarpur shelter home case, should be changed at this stage,” the bench said, after being informed by Attorney General KK Venugopal that the current team was constituted by the CBI director on July 30.

In its order passed on 29 August, the High Court Bench comprising Chief Justice Mukesh R. Shah and Justice Ravi Ranjan had lamented the amount of work that still needed to be done by the agency, after a perusal of the status report submitted to it.

It had noted, “We perused the status report of the investigation carried out so far and even the team constituted to carried out the further investigation. So many further investigation is required to be carried out and that too urgently , as any further delay may affect the merits of the case and even the evidence…

…Having gone through the aforesaid and considering the status report of investigation carried out so far in detail, we are of the opinion that let the investigation be monitored and supervised by the Special Director, C.B.I., New Delhi who shall be free to constitute the fresh SIT/Team for further investigation.”

The Court had further appointed Ms. Prakritita Sharma as the amicus curiae, requesting her to visit the places where the victims were accommodated and interact with them. Post such interaction, she is expected to submit a report on their rehabilitation. The Bihar State Legal Services Authority was directed to provide her with the requisite facilities.

Additionally, the State government was directed to file a detailed statement indicating the number of shelter homes in Bihar being run by NGOs, with particulars of those granted recognition and financial assistance by the State of Bihar. It further sought to know whether their accounts were being audited and whether social audits are being carried out.

Lastly, the State was ordered to record the particulars of those shelter homes which are being run by the Government as well. The matter has now been listed on 17 September, when the CBI shall file the next status report.

It was in June, 2017 that the Social Welfare Department, which looks after shelter and short-stay homes in the State, asked the Tata Institute of Social Sciences, Mumbai to prepare a report on their condition. However, little did the seven-member team of young psychologists of the ‘Koshish Project’ know that they would be blowing the lid off a sordid tale of sexual abuse of the scale that has surfaced.

The report, submitted on April 26 this year, made startling revelations about “physical and sexual violations of girls,” especially at the Muzaffarpur home. The Department had then filed an FIR at the women’s police station in Muzaffarpur on May 31, seeking “suitable action” on the plight of girls interviewed by the TISS team.

The political storm triggered by the report had then prompted the Nitish Kumar government to bring in the CBI. Meanwhile, the Patna High Court had taken suo motu cognizance of the allegations, along with other petitions on the incident filed before it.

Pursuant to an order passed by it on 6 August, the High Court has been monitoring the CBI probe. However, while it was expecting a status report on 23 August, it was informed that the investigation carried out so far was not being placed on record as one of the Investigating Officers, who was a part of the CBI team, had been transferred in the midst of the probe.

The Court was also informed that even the regular Superintendent of Police/ HoD/CBI/SCB, Patna has not been appointed in the office, and that the charge has been given to another officer from Lucknow, who will be handed over additional charge. The matter was then adjourned to 27 August, when the status report in a sealed cover was submitted by the CBI.

A Delhi court on Tuesday summoned Chief Minister Arvind Kejriwal, his deputy Manish Sisodia and 11 other Aam Aadmi Party MLAs in connection with the assault of Chief Secretary Anshu Prakash at Kejriwal’s residence in February.

Additional Chief Metropolitan Magistrate Samar Vishal summoned the AAP leaders named as accused in the charge sheet for October 25.

Besides Kejriwal and Sisodia, those named in the charge sheet are Amanatullah Khan, Prakash Jarwal, Nitin Tyagi, Rituraj Govind, Sanjeev Jha, Ajay Dutt, Rajesh Rishi, Rajesh Gupta, Madan Lal, Parveen Kumar and Dinesh Mohania.

Prakash was allegedly assaulted at Kejriwal’s residence on the intervening night of February 20.

He later said in his complaint filed at the Civil Lines police station that he was first called suddenly for the meeting late in the night to discuss the difficulty in the release of certain TV advertisements on completion of three years of the AAP government in Delhi.

He had said he was made to sit between Jarwal and Khan on a three-seater sofa and they suddenly started attacking him with fist blows on head and temple.

Both Jarwal and Khan were arrested but released on bail.

A charge sheet filed in the court on August 13 booked the MLAs under Sections 186 IPC for obstructing a public servant, 332 for voluntarily causing hurt to deter public servant for doing his duty, 120B (criminal conspiracy), 353 (assault or criminal force to deter public servant to discharge his duties) etc.

The incident had led to bureaucrats in the Delhi government boycotting many meetings saying they feared for their security while the AAP had called it the Centre’s conspiracy.

“We are of the view that the High Court was not justified in going into the evidence on record in such a depth which amounts to ascertaining the probability of the conviction of the accused.”

The Supreme Court has cancelled bail granted by the high court to an ‘influential’ businessman accused in a murder case, taking into account his past attempt to evade the process of law, and also implications of the clout enjoyed by him in the community.

The bench comprising Justice L. Nageswara Rao and Justice Mohan M. Shantanagoudar in State of Orissa vs. Mahimananda Mishra said the court must not go into deep into merits of the matter while considering an application for bail and all that needs to be established from the record is the existence of a prima facie case against the accused

Mahimananda Mishra was accused of plotting murder of the branch manager of his rival company. During the investigation, it was found that he went away to Thailand travelling via Chennai, Delhi and Nepal, before he could be arrested and only after a Look Out Circular was issued, he was traced to Thailand and was deported therefrom to India, after which he was arrested. Although all these facts were brought before the high court, it granted bail to the accused.

In the order granting bail, the high court further observed that the undated letter of the deceased addressed to the police showing apprehension to his life cannot be treated as a dying declaration; the material on record does not indicate any motive on the part of the respondent to conspire towards the commission of murder in question, and that the confessions of the co-accused cannot be made used of against him.

On appeal by the state, the apex court bench observed that the high court was not justified in going into the evidence on record in such a depth which amounts to ascertaining the probability of the conviction of the accused.

Referring to Anil Kumar Yadav vs. State (NCT) of Delhi, the bench said: “It is by now well settled that at the time of considering an application for bail, the Court must take into account certain factors such as the existence of a  prima facie  case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating   the   offence,   the   possibility   of   tampering   with   the witnesses and obstructing the Courts as well as the criminal antecedents of the accused.  It is also well settled that the Court must not go into deep into merits of the matter while considering an application for bail.  All that needs to be established from the record is the existence of a prima facie case against the accused.”

The court further observed that the accused is an influential person in his locality, in terms of both money and muscle power. “There is a reasonable apprehension that he might tamper with or otherwise adversely influence the investigation, which is still going on qua some of the co-accused in the case, or that he might intimidate witnesses before or during the trial. The High Court in observing that there was no possibility of the respondent’s absconding in light of his being a local businessman, not only completely overlooked his past attempt to evade the process of law, but also overlooked the implications of the clout enjoyed by him in the community,” the bench observed and directed the businessman be taken into custody.

Application also seeks diverse experts to review pesticides

The Supreme Court on Monday issued notice on an application seeking direction to the Centre to review 85 pesticides, besides the 99 forming the subject matter of the main petition seeking a ban on pesticides with grave health and environmental hazards.

A bench of Justice Arun Mishra and Justice Vineet Saran issued notice on an application moved by Kavitha Kuruganti, which says many of these 85 pesticides have not even been reviewed by the Anupam Verma committee which had been set to review the use of 66 pesticides which were barred/restricted in other countries.

The petitioner had in October 2017 moved the apex court seeking a ban on 99 pesticides which had been banned by other countries but continue to be manufactured and used in India.

In the application seeking check on 85 other pesticides, petitioner’s counsel advocate Prashant Bhushan assisted by advocate Omanakuttan argued that, “A revised comparison of registered pesticides in India with bans in other countries (one or more other countries) shows that the list is actually of 103 such pesticides, whereas the Anupam Verma Committee had reviewed only 66 pesticides out of which the August 2018 Gazette Notification took decisive action on only 18 pesticides (within which six will be phased out only by 2020).

“Petitioners also have evidence to show from official consumption data that several of the pesticides covered in the said ban order were in any case not being consumed in a negligible fashion, which points to the fact that the Anupam Verma Committee seemed to have taken the easier option of banning those which were being used in low or negligible manner in any case,” said the application.

“This means that India is continuing to have at least 85 pesticides on which positive action is still awaited so that human lives, health and environment can be protected from the harmful effects of such pesticides,” it added.

The application also prayed that all pesticides be reviewed and the review committee should include independent health experts working on the issue of health impacts of pesticides, state government representatives and also experts from the ecological agriculture field.

It also prayed that state governments be empowered to decide on state-level prohibition and restriction on pesticides based on due processes adopted by them regarding its socio-economic, health and environmental impacts.

The petitioner said despite agriculture being in the State List, the Insecticides Act gives only limited powers to the state governments wherein it can prohibit the sale of any insecticide on the ground of public safety for maximum 90 days pending investigation and the prohibition order, if any, has to be finally passed by the Centre.

Citing this lack of authority with the state government, the application cited how an order issued by the Punjab government in January 2018 discontinuing the sale of 20 insecticides could only be in force for 60 days.

Welcoming the August, 2018 order banning 11 pesticides, including carbaryl (used in paddy, cotton etc), diazinon (household pest control), fenarimol (fungicide used on apples), and phasing out six others, the application said the same was as recommended by the Anupam Verma committee which had no health experts or public-spirited civil society experts who have experience in alternatives to toxic chemicals when it comes to plant protection.

“…these Committees have been heavily influenced by pesticides industry’s participation as well as agriculture scientists whose expertise has been in synthetic pesticides based plant protection,” it said while demanding inclusion of a more diverse group of experts in the review process.

Read the Application Here

As many as 1,000 farmers affected by the proposed Mumbai-Ahmedabad bullet train submitted affidavits in the Gujarat High Court Tuesday, voicing their opposition to the project.

A division bench of Chief Justice R Subhash Reddy and Justice V M Pancholi is hearing five petitions challenging the land acquisition process for the high-speed rail project.

Besides these petitioners, 1,000 farmers submitted separate affidavits in the high court to make a point that many more cultivators are affected by the Centre's ambitious Rs 1.10 lakh crore project and are opposed to it.

In the affidavit, the affected farmers from various districts of Gujarat, from where the bullet train route will pass, stated that they do not want acquisition of their land for the project.

They also said that the existing land acquisition proceedings are contrary to guidelines of the Japan International Cooperation Agency (JICA) that has provided soft loan to the Indian government for the project.

The farmers alleged that the Gujarat government diluted the Land Acquisition Act 2013 after Japan entered into a contract with India for the bullet train in September 2015, and that the state amendment itself violates JICA guidelines.

They told the court that neither their consent was taken, nor any consultations were done with them while initiating the land acquisition.

They said the social impact assessment for rehabilitation and resettlement is also not being discussed by the government and that the agencies have undertaken "unknown proceedings" (with farmers are not aware of).

During the hearing, the central government sought more time to file a reply.

Notably, the Supreme Court had directed the high court on August 10 to expeditiously hear matters of the bullet train-affected farmers.

Farmers' lawyer Anand Yagnik told reporters that the high court is unable to hear the matter as since the last five weeks, the Centre has been consistently seeking time to submit the reply.

"These 1,000 affected farmers will be approaching the Supreme Court with a prayer to stay the project. We will mention the matter before the apex court Wednesday for an urgent hearing," Yagnik said.

In their petitions filed in July, the five farmers, all from Surat district, said since the project extends to more than one state (Gujarat and Maharashtra), the Centre is the "appropriate government" to acquire the land for it.

Another contention of the petitioners is that the market value of the land was not revised, as required under Section 26 of the Land Acquisition Act.

The petitioners have also challenged the Gujarat Amendment Act 2016 which tweaked the 2013 law.

It gives "unbridled and unfettered powers" to the state government to exempt any project "in public interest" from the social impact assessment (SIA), they said.

The state government, in its reply, said since the width of land to be acquired for the project is just 17.5 metres, the resettlement issues are minimal.

The project was launched by Prime Minister Narendra Modi and his Japanese counterpart Shinzo Abe in September last year.

The bullet train will run at a speed of 320-350 kmph, and have 12 stations across its 500 km stretch.

For the project, around 1,400 hectares of land will be acquired in Gujarat and Maharashtra, 1,120 hectares of which is privately owned. Around 6,000 landowners will have to be compensated.

(This story has not been edited by LiveLaw and is from PTI feed)

Undoubtedly, the Indian Arbitration Act of 1940 had failed. Barring Government / PWD / DDA Contracts, that imposed arbitration Clause(s) upon Private Contractor(s), India’s alternate dispute resolution mechanism convinced or attracted none. In writing it’s epitaph, Justice D.A. Desai lamented -

“Interminable, time consuming, complex and expensive court procedures impelled jurists to search for an alternative forum, less formal, more effective and speedy for resolution of disputes avoiding procedural claptrap and this led them to Arbitration Act, 1940 (‘Act’ for short).  However, the way in which the proceedings under the Act are conducted and without an exception challenged in courts has made lawyers laugh and legal philosophers weep. Experience shows and law reports bear ample testimony that the proceedings under the Act have become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. Informal forum chosen by the parties for expeditious disposal of their disputes has by the decisions of the courts been clothed with “legalese” of unforeseeable complexity”[1].

Despite the “lawyer’s laugh” and the “philosophers weep”, it took another  15-years for the legislature to repeal the 1940 Act and introduce the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act).  While the Act was launched with much fanfare, great promise and expectation of not just obliterating the lethargy and inertia of the old Act, it was equally expected to introduce and imbibe, some of the universal notions of the western  justice delivery system, e.g.- speed, quick and expeditious adjudication, minimal / limited role of Court(s) etc.  The new Act was after all based on the United Nations Commission on International Trade Law. After 22-years of its enactment and application, would it not be apposite to wonder, if Justice Desai’s words equally resonate or stand silenced.

Arbitration, an alternative dispute resolution mechanism (ADR), is often described as “a binding voluntary alternative dispute resolution process by a private forum chosen by the Parties”[2].  It is inherently expected, that “If the Parties with their eyes wide open have consented to refer the matter to the arbitration, then normally the finding of the Arbitrator should be accepted without demur”[3].  Apparently, after the pronouncement of the arbitral award the Court(s) are expected to discharge a mere “supervisory role”[4], categorically and explicitly scripted in Section 34 of the Act and by way of the various judgment(s) interpreting and reaffirming its mandate. After all, arbitration is / “was meant to be a speedy, expeditious and cost-effective method of dispute reconciliation”[5]. Undoubtedly, it’s primary and paramount objective is “avoidance of vexation, expense and delay………”[6].

In ONGC vs Saw Pipes[7], one of the first detailed judgment(s) analysing and interpreting Section 34 and Associate Builders vs DDA[8], that had the benefit of the ONGC judgment (supra), the Supreme Court painstakingly defined and re-defined, the limited scope of interference with arbitral awards.

Consequently, if the process of arbitration is well-defined and the scope for interference against an award well settled, would it be correct to say: i) that  lawyers ingenuity / surgical intelligence; and ii) the Court(s) parens-patriae attitude, have succeeded in failing/have abjectly defeated the very purpose of arbitration ? Likewise, is it legitimate to conclude, that Justice Desai’s words are equally applicable to proceedings under the Act?

In examining the legislative mandate, first, let us begin with Section 34 and the pre-amended Section 36 of the Act, that prohibited/prevented execution of an award, till the challenge under Section 34 remained pending and had not been rejected. Pointing at this gaping lacunae and suggesting immediate rectification, Justice Hegde[9] pithily wrote - “However, we do notice that this automatic suspension of the execution of the award, the moment an application challenging the said award is filed under Section 34 of the Act leaving no discretion in the court to put the parties on terms, in our opinion, defeats the very objective of the alternate dispute resolution system to which arbitration belongs”.  Thankfully, the Act was amended on 23.10.2015, allowing successful Parties to seek execution despite the pendency of a challenge under Section 34.

Second, for a forensic appreciation, let us examine a few instances of judicial intervention in the recent past –

•  in ONGC vs Saw Pipes (supra), the arbitral award was passed on 02.05.1999, while the SLP was finally decided by judgment dated 17.04.2003, consuming a period of more than 4-years;
• in Associate Builders vs DDA (supra), the arbitral award was passed on 23.05.2005, the objection(s) under Section 34 was dismissed on 03.04.2006, the Appeal under Section 37 was decided on 08.02.2012 and the SLP finally decided by judgment dated 25.11.2014, consuming a period of more than 9-years;
• in National Highways Authority of India vs ITD Cementation India Limited (2015) 14 SCC 21, the arbitral award was passed    on 12.05.2006, the objection(s) under Section 34 were dismissed on 14.05.2007, the Appeal under Section 37 was decided on 30.11.2007 and the SLP was finally decided by judgment dated 24.04.2015, consuming a period of more than     9-years; and
• in Centrotrade Minerals and Metal Incorporated vs Hindustan Copper Limited (supra), the Arbitrator / Tribunal at London passed their foreign award on 29.09.2001. Section 48 proceedings before the High Court culminated on 28.07.2004. The challenge to the said order on the question of enforceability of the award, remained undecided / pending till 15.12.2016, consuming a period of 15-years.

If, such copious time is consumed for an award to bear fruition, Justice Desai’s words are indeed ringing true. What then is the panacea?

Post an award, the Act mandates a three-tier process of the hierarchical check(s) – a) Hurdle 1-Section 34; b) Hurdle 2-Section 37; and c)Hurdle 3-Article 136 of the Constitution. If a Party, successfully prevails over  Hurdle 1, it is automatically placed before Hurdle 2 and thereafter Hurdle 3.  In other words, after an award, the lawmakers prescribe a successful triple hurdle chase, for the award to finally mature.

Consequently, all those seeking to repose faith and confidence on India’s arbitration mechanism, are impelled to ask, if arbitration is – “a binding voluntary alternative dispute resolution process…..”*; whose findings should normally “be accepted without demur”*; where the Court(s) are expected to discharge a mere “supervisory role”*; “a speedy, expeditious and cost-effective method of dispute reconciliation”*; aimed at “avoidance of vexation, expense and delay……”*, would it be right and thus lawful to place an award so procured through this system of triple hurdles?  Does it not indicate or establish a complete lack of confidence or faith of our law-makers over our justice dispensation system ?

          Ironically, such an elaborate mechanism is not prescribed even under the Civil Procedure Code, to escape which the Act was particularly enacted. Undoubtedly, against a decree, the civil law permits a First Appeal, followed by a Second Appeal only on “a substantial question of law”[10].  In cases, where the High Courts exercise ordinary original civil jurisdiction, e.g.- the Delhi High Court, a Party is denied the remedy of a Second Appeal, since only a First Appeal lies before the Division Bench, against a decree passed by the Single Judge. The only remedy thereafter being before the Supreme Court under Article 136.  What then is the relevance and purpose for a Party to seek recourse through arbitration and undergo the triple hurdle chase?  Is it not self-defeating? What good fortune did Parties achieve, after spending substantial time, energy and money before the Arbitral Tribunal?

 As we foray further and as the law suggests, that - the Act is an exhaustive self-contained code[11], that arbitration proceedings must necessarily be fair, speedy and inexpensive without unnecessary delay or expense[12], where the “legislative intent underlying the 1996 Act is to minimize the supervisory role of Court(s) in the arbitral process…..”[13], can it even be vaguely countenanced, that an arbitral award be subjected to such three-tier challenge and more so, permitted and prescribed by our lawmakers.

That brings us back to the question we started with, which is how relevant and apposite is Justice Desai’s lament in the present circumstances? Also, are lawyer(s) still laughing and the philosopher(s) in tears? Undoubtedly, yes. The whole purpose of an ADR mechanism stands defeated, if it takes years to attain finality / or obtain the fruits. If, the arbitration proceedings are to attain respect as a genuine mechanism and not a trap, that engulfs a Party for years altogether, the legislature must necessarily amend the Act and for all purposes bury Section 37 with full State honours.  Likewise, it is imperative to prescribe statutory time-frame(s) for adjudicating Section 34 and Article 136 challenge(s). If drastic measures are not immediately introduced, the rot will rapidly percolate and nullify the entire arbitration process.

While the lawmakers may debate and find solution to the threat sought to be exposed herein, let me conclude by what Shri F.S. Nariman, Senior Advocate while affirming the adage – “Justice is good but, finality is better”, recently quoted – “Someone has humorously stated that the provision for one appeal is a reasonable precaution, the provision for two appeals is panic, and that for three appeals is a complete lack of confidence in the judiciary - this  is the case of India - in our anxiety to secure justice, we unduly delay it”[14].

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

[1] Guru Nanak Foundation vs Rattan Singh & Sons (1981) 4 SCC 634. The judgment was delivered by the Supreme Court on 29.09.1981 and the Arbitration and Conciliation Act, 1996 came into force on 22.08.1096.

[2] Indian Oil Corporation Ltd & Others vs Raja Transport Private Limited (2009) 8 SCC  520.

[3] Numaligarh Refinery Limited vs Daelim Industrial Company Limited (2007) 8 SCC 466.

[4] McDermott International Incorporated vs Burns Standard Company Limited & Others (2006) 11 SCC 181.

[5] Centrotrade Mineral and Metals Incorporated vs Hindustan Copper Limited (2006) 11 SCC 245.

[6] Centrotrade Mineral and Metals Incorporated vs Hindustan Copper Limited (Supra).

[7] ONGC vs Saw Pipes Limited (2003) 5 SCC 705.

[8] Associate Builders vs DDA (2015) 3 SCC 49.

[9] National Aluminium Co. Ltd. vs Pressteel & Fabrications (P) Ltd. (2004) 1 SCC 540.

[10] See Section 100 of the Code of Civil Procedure, 1908.

[11] Fuerst Day Lawson Limited vs Jindal Exports Limited (2011) 8 SCC 333.

[12]Union of India & Others vs Uttar Pradesh State Bridge Corporation Limited (2015) 2  SCC 52.

[13]Food Corporation of India vs Indian Council of Arbitration & Others (2003) 6 SCC 564.

[14] Please see Article by Mehal Jain dated 02.05.2018, Live Law.

* Please see footnotes 2, 3, 4, 5 and 6 (supra).

The government's response to the Court order will be a litmus test of its commitment to the anti-corruption plank on which it rode to power in 2016

'Vigilance and Anti-Corruption Bureau absolves K.M Mani of corruption allegations, but the Court rejects VACB report and orders further probe'. The same story recurred for the third time today, when the Court of Special Judge and Enquiry Commissioner Thiruvananthapuram refused to accept the closure report filed by the VACB.

The report filed by the VACB on March 3, 2018, stated that there were no grounds to proceed against K M Mani, and recommended dropping of further proceedings. However, Special Judge D. Ajith Kumar held that the refer report omitted to take into account several material facts, and ordered further probe. It was held that the contents of CD containing records of conversation of bar owners had to be examined.  It also needed to be ascertained whether the amount of Rs. 50 lakhs had been trasnferred to K M Mani at his residence in Palai, especially so when the Vigilance has found that the bar owners had taken the amount to Palai- the judge said. The judge noted that sanction was now necessary even for investigation after the amendment made to the Prevention of Corruption Act in July 2018. Therefore, the matter has been posted to December 10 to await sanction for further probe in relation to offences punishable under Section 7 to 11 and Section 13(1)(d) of the Prevention of Corruption Act.

Six protest complaints were filed against the closure report, including the ones by V S Achuthanandan, former leader of opposition,  P K Raju from CPI of the ruling front, BJP leader V Muraleedharan and Biju Ramesh, the bar owner who had raised the allegations for the first time. It was contended that the closure report ignored the consistent statements of Biju Ramesh regarding payment of bribe to Mani. Transactions involving huge sums of money by members of Kerala Bar Hotel-owners Association(KBHA) in the same place and on the same day as that of their meeting with the accused in a recurrent pattern, were allegedly overlooked by the Bureau. It was also stated that no coherent reasons were given for discarding the CD containing the record of the meeting of the core committee meeting of the KBHA or for not looking for other available evidence to ascertain whether such a meeting actually took place

Mani's Fluctuating Fortunes.

The case has its genesis in the media revelations made by Biju Ramesh, the then President of KBHA, that the Association had paid Rs.1 crore as bribe to K.M Mani to facilitate the renewal of bar licenses which got suspended following the liquor policy adopted by the then UDF Government.  K.M Mani, who was then the Minister for Law and Finance, was alleged to have received the amount of Rs. One Crore in three installments, i.e. Rs. 15 lakhs on 22.03.2014, Rs.50 lakhs on 31.03.2014 and 35 lakhs on 02.04.2014 on a promise to review the liquor policy.

On the basis of Biju Ramesh's revelations, the then leader of opposition V S Achuthanandan filed a complaint before the Vigilance Director for action against Mani. Choosing not to register immediate FIR, the Director forwarded the complaint for a quick verification enquiry by the Superintendent of Police.  On July 7,2015, he filed a final report stating that there was no evidence to substantiate the allegations against Mani. However, the Special Court declined to accept the same and directed further investigation on October 29, 2015.

The VACB suffered a major set-back when it chose to challenge this direction of the Special Judge before the High Court. The High Court completely endorsed the decision of Special Judge to order further probe, and held that the Vigilance Director had interfered with the investigation. While rejecting the challenge of VACB, Justice Kemal Pasha of the High Court observed : "the common man may entertain a feeling that there cannot be a proper investigation by a State Machinery when the accused, against whom fingers are pointed out, is continuing as a Minister. This led to a huge political furore, causing K.M Mani's step down as the Minister.

After the further investigation so ordered, the VACB filed another closure report on January 13, 2016 praying that ‘further action be dropped’ in the case.

However, in a volte-face, an application under Section 178(3) of the Code of Criminal Procedure was filed on August 23, 2016 seeking permission for further investigation. By that time, the UDF Government was unseated by the LDF Government in the elections held in May 2016. On August 27, 2016, the Court accorded formal permission to the investigating officer to proceed with further investigation.

But the third round of further investigation by VACB also produced the same result as the earlier reports filed during UDF tenure. On March 3, 2018, the VACB filed the present closure report to drop further proceedings. It was stated that there was no enough evidence to prove the handing over of money to the accused Meanwhile, rumours were rife that K M Mani's Kerala Congress(M) party was attempting to forge alliance with CPM of the ruling front, and the closure report filed under the LDF government was widely speculated to be a fall out of the changing political equations.

Dissent was simmering within the ruling front too, as CPI was not reportedly pleased with the closure report favouring Mani.  The hearing of the case had witnessed dramatic scenes, after the Special Public Prosecutor appointed by the Government in the case, K P Satheesan objected to the closure report. Satheesan maintained that there was sufficient materials on record to prosecute Mani. This led to the Vigilance legal advisor C C Augustine opposing the appearance of Special Public Prosecutor in the case.

The ramifications of the Court's decision will play out in the larger political canvass, as it is now incumbent on the government to decide whether to sanction further probe or not. The government response to the Court order will be a litmus test of its commitment to the anti-corruption plank on which it rode to power in 2016, and hence its moves will be closely watched.

National Law School of India University, Bengaluru, is organizing a national seminar on Smart Laws for Smart Cities: Agenda for Reform, Consolidation and Codification. The seminar is being organised by Centre for Environmental Law Education, Research and Advocacy, National Law School of India University, Bangalore, in collaboration with the Directorate of Municipal Administration, Government of Karnataka.

Dates: 29^th and 30^th October 2018

Venue: Krishnappa Memorial Hall, Academic Block, National Law School of India University, Bengaluru

The organisers invite presentations and papers from legal practitioners, academicians, research scholars, solicitors, attorneys, advocates, urban planners, corporate personnel, civil society groups, architects, resident welfare associations, government officers in urban local bodies, state and central government and students.

Papers can be submitted on the following sub-themes:

• Legal and Governance Challenges/Suggested Reforms;
• Civic Amenities and Delivery of Services; and,
• Concept of Smart Cities.

Important Dates:

• Abstract Submission: 5^th October 2018
• Communication for Acceptance of Abstract: 6^th October 2018
• Last Date for Registration: 10^th October 2018
• Submission of Full-Length Papers: 25^th November 2018

For further details, click here.

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The bench noted that potholes killed 3,597 persons in 2017 but was surprised that states were disputing the figures

 A bench of justices Madan B Lokur and Deepak Gupta today questioned why states were disputing the centre’s figure that potholes claimed 3,597 lives last year and were not willing to take remedial measures to save precious lives.

“It is unfortunate that some states were disputing the data published by the Union Ministry of Road Transport and Highway (MoRTH) under the Central government on the ground that the figures were not verified by the transport departments of the respective states”, said the bench.

The court noted in the order that it had earlier observed that “the number of deaths in road accidents was more than the fatalities caused by terrorist attacks in India and the situation was frightening”.

In July, the apex court had taken cognizance of reports quoting official data showing that pothole-related accidents had claimed 3,597 lives in 2017, compared to 803 in all terror and extremist attacks that year.

The bench said it was also surprising that some states have said at a recent meeting convened by the Supreme Court Committee on Road Safety, headed by former top court judge Justice K S Radhakrishnan, that the funds allocated to them for maintenance of roads were inadequate.

It observed that since the states were constructing the roads, they were also obliged to maintain them.

“How can the states say that they cannot maintain the roads? Why states are giving money to the contractors for roads if they have no money to maintain the roads? Will they demolish all the roads”, the bench said.

“What are the states doing”, it asked the counsel appearing for the ministry, while referring to the submissions by the states at the meeting about the data on deaths in accidents caused by potholes.

“Who is to maintain the roads? Are the people supposed to maintain them”, the bench asked.

Advocate Gaurav Agrawal, assisting the court as an amicus curiae in the road safety matter, said the authorities do not see the underlining problem and no policy was discussed at the meeting on how to repair the potholes.

The National Company Law Tribunal (NCLT) has invited applications from Indian nationals to work as Law Research Associate in NCLT, purely on a contractual assignment.

Essential Qualifications:

• Law Graduates (fresh or experienced) who have passed final year L.L.B examination with a minimum aggregate of 50% marks from a recognized university.
• The candidate should be enrolled with any Bar Council.
• The age of the candidate shall not be above 30 years as on last date of receipt of applications.
• The candidate must have knowledge of computer operation including retrieval of desired information from various search engines/processors such as Manupatra, SCC Online, etc.
• He/she will be required to adhere to the dress code.

Selection will be made for filling up the existing and future vacancies in NCLT Benches at the following locations:

• Delhi
• Ahmedabad
• Allahabad
• Bengaluru
• Chandigarh
• Chennai
• Cuttack
• Guwahati
• Hyderabad
• Jaipur
• Kochi
• Kolkata
• Mumbai

Remuneration: A consolidated remuneration of Rs 30,000 per month will be paid to the Law Research Associate.

Duties and functions: Law Research Associate shall function as Research Associate attached to Hon’ble President/Members of NCLT for the purpose of identification, selection, collection and combination of case laws, citation andjudicial pronouncements relevant to specific proceedings,sitting in court during hearing of matters by the Tribunal and noting down the arguments, preparing synopsis of the matters listed before the Tribunal, assisting in preparation of draft judgment if asked for. They shall also be responsible for development, storage and speedy retrieval of such material as per requirement and bunching of similar matters.

Period of contract: The period of contract initially will be for one year, extendable further depending upon the performance and requirement. The maximum period of engagement as Law Research Associate on contract basis in the NCLT will not exceed three years.

Last Date to Apply: 15^th October 2018

The official notification and application form can be found here.

As the war between ArcelorMittal and NuMetal over Essar Steels spills into its third day before the Supreme Court, Justice Rohinton Nariman on Tuesday remarked that the opinion of the Committee of Creditors (COC) as to the disqualification of a resolution applicant under section 29A of the Insolvency and Bankruptcy Code of 2017 was only a prima facie one and that NCLT is the statutory authority to decide.

When Senior Advocate Harish Salve, appearing on behalf of ArcelorMittal, suggested that even the COC is an interested party, the judge concurred, saying that the COC is the “most interested” and the “vitally interested party”.

In the light of section 31(1) of the Code, which makes binding on the corporate debtor and its employees, members, creditors, guarantors and other stakeholders the resolution plan if the NCLT, by order, approves of it, Justice Nariman observed, “It would be a much better way if there is nothing before the NCLT...nobody’s interest suffers as it is the NCLT which ultimately decides and there would also be no conflict with section 29A...at the earlier stages, there is no Fundamental Right, otherwise, the people will start taking recourse to Article 226 and the entire procedure will get sabotaged...we will make it clear that there may be no High Court, no 226”

The bench, also comprising Justice Indu Malhotra, required Mr. Salve to show the escrow agreement in respect of the sum of Rs. 7,000 crores that the NCLAT had, in its impugned order, directed ArcelorMittal to pay to clear the bad loans of Uttam Galva Steel and KSS Petron, of which it was the promoter, so as to tide over the disqualification under section 29A.

Next, Senior Counsel Abhishek Manu Singhvi, also for ArcelorMittal, prayed that the bench to determine the relevant date on which the eligibility of a resolution applicant is to be judged, which, in his view, would be the date of submission of the Resolution Plan.

It may be noted that clause (c) declares a person ineligible for submitting a resolution plan if such person, or any other person acting jointly or in concert with such person, has an account, or an account of a corporate debtor under the management or control of such person or of whom such person is a promoter, classified as non-performing asset, and a period of one year has lapsed from the date of such classification. The proviso to the clause, however, lifts this restraint subject to the payment of all overdue amounts with interest and other charges.

“The disqualification under clause (c), which we are concerned with, is not dependent on some external regulatory agency for its cure...”, advanced Dr. Singhvi.

It was his contention that so far as ArcelorMittal is concerned, all the tests as stipulated in clause (c) were not complied with.

At previous hearings, Mr. Salve had argued that NuMetal is a ‘shell company’ created by a firm fully controlled by Essar promoter Ravi Ruia’s son Rewant, who had exited from NuMetal to circumvent the eligibility criteria to bid for Essar Steels, against which bad loans to the tune of Rs. 50,000 crores have swelled up. It was his case that the Ruias, who were attempting to regain control over Essar Steels through Numetal, must also be required to discharge their liability towards the said Rs. 50,000 crores in proportion to their 90% stake in Essar Steels.

He had also drawn the bench’s attention to the acquisition of controlling shares in Numetal by Russia’s VTB Bank which has been prohibited by the European Council Regulation from trading in securities and entering capital markets.

It may be worth mentioning that clause (i) of section 29A debars a person if a disability, which corresponds to any of the section’s earlier clauses, has been imposed, either on the said person, or another acting jointly or in concert with such person under any law in a jurisdiction outside India.

In his turn, Senior Advocate Mukul Rohatgi, representing NuMetal, argued that the phraseology ‘persons acting in concert’, as explained in the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011, does not include the case of a shareholder and a company. “The shareholder is the company”, he stated.

“But there is a difference between one who has been a shareholder for some time and one who is brought in suddenly, as is the case with VTB”, noted Justice Nariman.

Further, Mr. Rohatgi referred to clause (f) of section 29A which attaches a disqualification to one prohibited by the SEBI from trading in securities or accessing the securities markets.

“It is (f) which should be considered first and thereupon, (i)...There should a regulator, which would be the counterpart of the SEBI of India, to ban VTB”, he advanced.

“The Ban being shown to Your Lordships is actually a political sanction at the behest of a group of countries which called themselves the European Union...there is no body akin to the SEBI in the European jurisdiction... the purpose of the sanction is to ostracize Russia, to squeeze it economically, for its attempts to destabilize Ukraine...it has nothing to do with VTB...Suppose India were to place a ban on a Russian company, not pursuant to SEBI’s standards, but based on its sovereign relations with Russia?”, elaborated Mr. Rohatgi.

The hearing remained inconclusive and shall resume on Wednesday.

A court in Karnataka on Saturday handed down death penalty to a 25-year old coolie for attempted rape and murder of a 15-year-old girl.

The II Additional Sessions Judge Court at Kolar convicted the accused, TN Suresh Babu, and directed that the records be sent to the Karnataka High Court for confirmation of the death sentence. Notably, Judge BS Rekha heard the case and pronounced the judgment in a record 22 days.

The accused was arrested by the Malur police on August 3, for his role in the murder of the student, whose body was found under a railway bridge, two days back on August 1. Examining the witness testimonies and the evidence before it, the Court found Babu guilty.

It observed, “…in my opinion there is no single lapse on the part of the prosecution or the Investigating Officer. There is no probable defence taken by the counsel. In this case the entire materials available on record shows that it is a preplanned, pre-thought crime and it has to be considered as rarest of rare case and the Court has to take this matter seriously so that the other should learn before thinking of this type of act. Hence, in my opinion, the prosecution has proved the guilt on the part of the accused beyond reasonable doubt. Hence, I answer the points for consideration in the affirmative.”

With regard to the sentencing, the Court opined that there exist no mitigating circumstances in the case at hand, explaining, “With respect to mitigating circumstances are concerned, there is no reason as to why lesser punishment should be given to accused. Further, it is not the case that he was mentally unfit or he was having any problem during that particular period which made him to commit this alleged act. 

Further this accused may not be having criminal background, but even without that he had committed such a heinous crime and if he is not appropriately punished, the society will be at stake. Hence in my opinion, there is no reason as to why lesser punishment should be given to him. Hence in my opinion capital punishment is the only punishment for this type of criminal.”

The judge in fact referred to the Nirbhaya rape case, and opined that the facts before it were not less gruesome than the Nirbhaya case, noting, “…the victim who is innocent 10th standard student having bright future was murdered for the purpose of sexual act in the daylight within the vicinity of the town”.

Judge Rekha then emphasized on the convict being sentenced adequately in order to serve as a deterrent against any such instances in future, and observed, “If he is allowed for lesser punishment, then it will not be a lesson for others. In this case that girl was innocent and a helpless and she fought for life, but her life came to an end at his hands within span of half an hour. Further if proper punishment is not given, then the life of people will be at stake.”

'Never seen s Senior Lawyer arguing like this': Justice AK Goel, 'Never seen such a Judicial Tribunal function like this': Senior Advocate C.S. Vaidyanathan.

The National Green Tribunal (NGT), on Tuesday, allowed Vedanta Limited to make representation to the three-member Expert Committee to enter into its copper smelting unit in Tuticorin.

The tribunal passed the order on an application moved by the company seeking access to its Sterlite Copper plant and removal of the hazardous material lying therein.

Rohini Musa, counsel for Vedanta Limited, said, “We had moved an application seeking permission to go in and conduct the care and maintenance to comply with the CPCB recommendations and also to remove the stack material under the supervision of the expert committee as has been ordered by the NGT on the last date.”

“The NGT’s order of August 20 had specifically said that this can be removed but only under the supervision of the Ministry of Environment, Forests and Climate Change and the CPCB (Central Pollution Control Board) member and that’s what the court allowed. But of course, we are waiting for the official copy of the order to be out,” Musa said.

The mining company’s counsel told the court that a large quantity of copper concentrate, having 30 per cent Sulphur, was lying inside the plant which needed to be taken care of.  

The Tamil Nadu government opposed Vedanta’s application holding that the company was, in a way, asking to restart the production and that the maintenance of the unit was being taken care of by the District Collector under the supervision of the high-powered Committee constituted by the NGT headed by Justice (Retired) Tarun Agrawal and the technical members.

The government also said that on the last date, the NGT had denied it the permission and it was for the committee to hear the complaints.

When the bench, comprising Chairperson Justice Adarsh Kumar Goel, Justice S.P. Wangdi and Expert Member, Dr. Nagin Nanda, said Vedanta may make representation to the expert committee, Senior Advocate, C.S. Vaidyanathan, appearing on behalf of State of Tamil Nadu, raised strong opposition, asking why the company was being allowed to make representations to the committee.

 I have never seen a judicial tribunal function like this,” Vaidyanathan  responded.

The NGT had, on August 20, formed a committee under the Chairmanship of Justice S.J. Vazifdar, former Chief Justice of the Punjab and Haryana High Court and former Judge of the Bombay High Court (who was later substituted by Justice Tarun Agrawal, former Chief Justice of the Meghalaya High Court and a former Judge of the Allahabad High Court on August 30) and a representative each from the CPCB and the Ministry of Environment, Forests and Climate Change.

The committee was entrusted to look into the claims of parties on the environmental compliances by Vedanta Limited and examine the impact on the inhabitants, as “perceived or actual”.

The panel was asked to decide the claims preferably within a period of six weeks after it resumed its working. The green court had also held that the recommendations of the CPCB may be carried out with respect to the status of the material stored in the unit’s premises as well as well as the inspection of the copper slag storage site near the Upper River.

The state government had shut down the unit for violating provisions of the Water (Prevention and Control of Pollution) Act, 1974, among other environmental grounds and disconnected its power supply in May following violent protests in which 13 people were killed in police firing on May 22.

The Supreme Court, on September 10, refused to interfere with the NGT’s expert committee order and directed the NGT to hear the matter on merit and maintainability.

(With PTI inputs)

A tense exchange took place between Additional Solicitor General Anil Singh and petitioner Ahmad Abdi in courtroom 40 of the Bombay High Court on Wednesday during the hearing of a PIL filed by the Bombay Lawyers Association (BLA) seeking a writ of mandamus directing CBI to challenge BJP president Amit Shah’s discharge in the alleged fake encounter of Sohrabuddin Shaikh.

The matter came up in the post-lunch session before the bench of Justice Ranjit More and Justice Bharati Dangre. ASG Anil Singh, who was appearing for the CBI, said he needed time to file a reply, to which BLA president Ahmad Abdi said he could argue without filing a reply.

ASG Singh first asserted that several petitions challenging the discharge had already been filed and were also been dismissed. He then questioned the petitioners Bombay Lawyers’ Association. He went on to say-

“This is nothing but a publicity stunt, the Supreme Court has questioned them in the judgment dismissing their petition on Judge Loya’s death. There are specific portions in the judgment where the Supreme Court has questioned their intent as they made several reckless allegations against judicial officers. This is not bona fide litigation; it’s publicity interest litigation. It is the fourth round of litigation in this matter.

Singh informed the bench that the deceased Sohrabuddin’s brother had filed a revision application earlier challenging Amit Shah’s discharge but later withdrew it. He then referred to a review petition filed by one Rajesh Kamble that challenged Shah’s discharge order but was dismissed. Then an appeal by Harsh Mandar, an activist whose challenge to the discharge order was rejected by the high court, was rejected by the Supreme Court.

Abdi aggressively submitted: “CBI cannot pick and choose which discharge to challenge, why are they not challenging Shah’s discharge in the matter? As far the Supreme Court’s dismissal of our petition is concerned, a review was filed and dismissed and now a curative petition has been filed. Why are you objecting to the litigation, it is our right.”

While going through the petition, Justice More asked Abdi whether he was challenging Judge Utpat’s transfer from the Sohrabuddin trial. Prayer clause (b) in the petition did challenge the administrative committee’s decision to transfer Judge Utpat.

Abdi said the reason for the challenge was because the Supreme Court had specifically recorded in its order that once the trial starts, the judge presiding over it shall remain the same. However, Abdi then submitted that he would not press this prayer. Thus, the court asked Abdi to amend his petition.

The CBI has been directed to file a compilation of all HC and SC orders/judgments relating to the discharge order. The case will now come up for hearing on October 3.

The National Law Institute University, Bhopal (NLIU), in association with the Office of Senior Advocate, Mr. Vivek Tankha, Singapore International Arbitration Centre (SIAC) and L&L Partners Law Offices (formerly Luthra & Luthra Law Offices), has announced the fourth edition of its flagship event, NLIU Justice R.K. Tankha Memorial International Moot Court Competition, organized in the fond memory of the Late Justice R.K. Tankha, to celebrate his extraordinary legacy.

This edition is supported by Singapore International Arbitration Centre (SIAC) as the institutional partner, and L&L Partners Law Offices as the knowledge partner.

Awards include cash prizes to the tune of INR 2,50,000 to the meritorious participants, trophies and access to research resources. Winners and the Best Oralist of the Moot will receive internship opportunities from L&L Partners Law Offices and SIAC, respectively.

Venue: The Competition shall be held in NLIU, Bhopal.

Dates: Friday, 22nd February to Sunday, 24th February.

Timeline:

• Last Date for Provisional Registration: October 10, 2018.
• Last Date for requesting of clarifications: October 20, 2018.
• Release of clarifications: October 30, 2018.
• Last Date for Final Registration (to be completed only after provisional registration’s confirmation): November 10, 2018.
• Submission of Memorials (soft-copy): February 5, 2019.
• Rounds: February 22-24, 2019.

Registration Fee:

• INR 4,000: 2-member or a 3-member team
• INR 5,000: 4-member team
• The registration fee is inclusive of accommodation and food to all participants during the period of the Moot.

All queries/clarifications/information requests must be directed to mca@nliu.ac.in. All updates will be available on their website and Facebook Page.

The Case Record and the Rules are available here.

“An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime.”

The Supreme Court has observed that in a case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium.

The bench of Justice Rohinton Fali Nariman and Justice Indu Malhotra in Magma General Insurance Co. Ltd vs. Nanu Ram Alias Chuhru Ram also observed that court is duty-bound and entitled to award “just compensation”, irrespective of whether any plea in that behalf was raised by the claimant.

The bench also explained the concept of ‘consortiums’ taking note that the MACT, as well as the high court, have not awarded any compensation with respect to loss of consortium and loss of estate.

 ‘Spousal Consortium’, ‘Parental Consortium’, and ‘Filial Consortium’

The bench then explained the categories of consortium and observed: “In legal parlance, “consortium” is a compendious term which encompasses ‘spousal consortium’, ‘parental consortium’, and ‘filial consortium’. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of “company, society, co-operation, affection, and aid of the other in every conjugal relation.” Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training.”

The bench observed that parents are entitled to be awarded loss of consortium under the head of filial consortium and said: “An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.”

The court also observed that there is also concept of parental consortium, which is awarded to children who lose their parents in motor vehicle accidents under the Act and only few high courts (an example of Rajasthan High Court is mentioned) have awarded compensation on this count.

The bench further said the amount of compensation to be awarded as consortium would be governed by the principles of awarding compensation under ‘Loss of Consortium’ as laid down by the constitution bench in Pranay Sethi case.

In this case, the bench awarded the father and the sister of the deceased an amount of Rs. 40,000 each for loss of filial consortium. Invoking the powers under Article 142 of the Constitution, the bench also awarded them an amount of Rs. 15,000 towards loss of estate.

Read the Judgment Here

It would require great courage of conviction and moral strength for a daughter to depose against her own mother who is an accused, remarked the Supreme Court bench while affirming the conviction of a woman who was accused of the murder of in-laws of her daughter.

Shamim was accused of murdering Pappu and Anisha, and injuring Heena, who are the brother, mother and sister of one Ishrat Ali, who had married her daughter Shabnam. One of the main witnesses in the prosecution case against her was her own daughter who deposed to the effect that her mother had told her that the murder was the consequence of not listening to her and that her husband will meet the same fate.

The trial court had acquitted the accused, but the high court convicted her and sentenced her to life imprisonment and denied the benefit of any remission in sentence, till she completes twenty-five years of custody. The High court had observed that the motive behind the murder was that the accused was perturbed and strongly opposed to the marriage between her daughter and Ishrat Ali.

One of the contentions before the apex court was that the evidence given by the daughter is not reliable. The bench of Justice Ranjan Gogoi, Justice Navin Sinha and Justice KM Joseph, in this regard, observed: “In a criminal trial, normally the evidence of the wife, husband, son or daughter of the deceased, is given great weightage on the principle that there is no reason for them not to speak the truth and shield the real culprit. We see no reason why the same principle cannot be applied when such a witness deposes against a closely related accused. According to normal human behaviour and conduct, a witness would tend to shield and protect a closely related accused. It would require great courage of conviction and moral strength for a daughter to depose against her own mother who is an accused. There is no reason why the same reverse weightage shall not be given to the credibility of such a witness.”

The bench observed that her deposition can be considered as a corroborative evidence being a voluntary extra-judicial confession, considering the nature of relationship between the witness and the appellant.

Though the bench affirmed the conviction recorded by the high court, it set aside direction for denial of remission for 25 years observing that no special reasons have been ascribed for the same.

"Prohibition of the performance of any activity in connection with the cultivation and possession of cannabis by an adult in private for his or her personal consumption in private is inconsistent with the right to privacy entrenched in the Constitution and is constitutionally invalid".

The Constitutional Court of South Africa has declared that penalizing possession, use and cultivation of cannabis for personal consumption in private is unconstitutional as it infringes an individual's right to privacy. This significant ruling was delivered by a ten judges bench of the Constitutional Court while considering confirmation of the judgment of the Western Cape Division of High Court, which had earlier struck down the penal provisions.

It is pertinent to note that right to privacy is specifically guaranteed as a fundamental right as per Section 14 of the South African Constitution.

Involved in the case was the validity of sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 (Drugs Act) and sections 22A(9)(a)(i) and 22A(10) of the Medicines and Related Substances Control Act 101 of 1965 (Medicines Act).  Section 4(b) of the Drugs Act prohibited  use or  possession of any dangerous dependence-producing substance or any undesirable dependence-producing substance. Section 5(b) prohibited dealing in any dangerous dependence–producing substance or any undesirable dependence-producing substance. Cultivation of cannabis is treated as 'dealing in' it, as per the definition clause of the Act.  Likewise, Section 22A(9)(a)(i) of the Medicines Act prohibited use and possession of scheduled drugs, which included cannabis. The conduct prohibited by section 22A(10) is the sale or administration of any “scheduled substance or medicine” for any purpose other than medicinal purposes.

The High Court struck down the above sections as a disproportionate and unjustified interference in right to privacy. The High Court observed that "privacy concerns dictate dictate and our constitution recognises that there should be an area of autonomy that precludes outside intervention".

"The evidence, read as a whole, cannot be taken to justify the use of criminal law for the personal consumption of cannabis. The present prohibition contained in the impugned legislation does not employ the least restrictive means to deal with a social and health problem for which there are now a number of less restrictive options supported by a significant body of expertise. The additional resources that may be unlocked for use of policing of serious crimes cannot be over emphasised", said the High Court.

As per provisions of the South African Constitution, a judgment of the High Court invalidating any statutory provision needs to be confirmed by the Constitutional Court to be operative. Thus, the proceedings reached the Constitutional Court. Also, the State filed appeal against the High Court judgment. The applicants too filed cross-appeals against the High Court judgment, to the extent it restricted the scope of exclusion only to use and cultivation of cannabis in one's private dwelling.

JUDGMENT: The criminal prohibition of possession, use or cultivation of cannabis by an adult person for personal consumption in private is an infringement of the right to privacy of an adult person and constitutionally invalid. (Minister of Justice v Prince) pic.twitter.com/IwA35T4QE7

— Constitutional Court (@ConCourtSA) September 18, 2018

Confirmation By Constitutional Court

The Constitutional Court examined the issue in the light of right to privacy, as enshrined in Section 14, and also Section 36 of the Constitution, which listed factors to be taken into account factors be taken into account in determining whether the limitation of a right entrenched in the Bill of Rights is reasonable and justifiable. These factors, built on the proportinality principle are :- a) nature of right (b) the importance of the purpose of the limitation;(c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.

At the outset, the Constitutional Court held that the penal provisions limited the right to privacy. The next step for the Court was to examine whether the limitation was reasonable and justified as per Section 36.

The State defended the provisions in the interests of  “the health, safety and psychological well-being of persons affected by the use of cannabis”. In this regard, the Court referred to the report of the South African Central Drug Authority that indicated, ihat, among alcohol, tobacco and cannabis “alcohol causes the most individual and social harm …”. The report of WHO that "the adverse health and social consequences of cannabis use reported by cannabis users who seek treatment for dependence appear to be less severe than those reported by persons dependent on alcohol or opioid" was also referred to.  It was also noted that there are many democratic societies based on freedom, equality and human dignity that have either legalised or decriminalised possession of cannabis in small quantities for personal consumption

The Constitutional Court agreed with the High Court in saying that the "prohibition of the performance of any activity in connection with the cultivation and possession of cannabis by an adult in private for his or her personal consumption in private is inconsistent with the right to privacy entrenched in the Constitution and is constitutionally invalid".

However, the Constitutional Court differed with the part of High Court judgment which decriminalized purchase of cannabis. The Constitutional Court stated : A purchaser of cannabis would be purchasing it from a dealer in cannabis. Therefore, if this Court were to confirm the order declaring invalid provisions that prohibit the purchase of cannabis,it would, in effect, be sanctioning dealing in cannabis. This the Court cannot do. Dealing in cannabis is a serious problem in this country and the prohibition of dealing in cannabis is a justifiable limitation of the right to privacy. 

The Constitutional Court also overruled the restrictive meaning given by the High Court to private space so as to cover only one's private dwelling. It was held that as long as the use or possession of cannabis is in private and not in public and the use or possession of cannabis is for the personal consumption of an adult, it is protected.

The effect of the judgment authored by Justice Roy Zondo, the Deputy Chief Justice of the Constitutional Court, is that :-

(a) an adult person may, use or be in possession of cannabis in private for his or her personal consumption in private. (b) the use, including smoking, of cannabis in public or in the presence of children or in the presence of non-consenting adult persons is not permitted. (c) the use or possession of cannabis in private other than by an adult for his or her personal consumption is not permitted. (d) The cultivation of cannabis by an adult in a private place for his or her personal consumption in private is no longer a criminal offence

#Dagga Scenes of jubilation inside court after the judgement was handed down. pic.twitter.com/6goMejZ9tU

— KhayelihleKhumalo (@KhayaJames) September 18, 2018

The operation of the judgment has been stayed for a period of 24 months to enable the Parliament to bring in appropriate legislative amendments. However, in the meanwhile, no penal action should be taken against anyone for private use and cultivation of marijuana. The Court acknowledged that there will be practical problems in ascertaining whether possession and cultivation was for personal use or not, and hence recommended the Parliament to specify permissible quantity on the basis of objective criteria.

#DaggaDecision Interesting scenes outside the Concourt. #Dagga pic.twitter.com/UfCjZpDnA6

— KhayelihleKhumalo (@KhayaJames) September 18, 2018

Prohibition Has Racist Footprints

The High Court judgment had noted that criminalisation of cannabis  is  characterised by "the racist footprints of a disgraceful past". The High Court referred to the fact that much of the history of cannabis use in the country “is replete with racism”. The Court observed that it was general knowledge that some sections of the Black population have been accustomed for hundreds of years to the use of dagga(cannabis), both as an intoxicant and in the belief that it has medicinal properties, and do not regard it with the same moral repugnance as do other sections of the population. The long-standing indulgence in the use of the substance by a group of which an accused person belongs should be a mitigating circumstance while sentencing one under the drug laws, the High Court observed.

The Supreme Court today issued contempt notice against Delhi BJP President Manoj Tiwari for openly defying court-appointed monitoring committee on sealing by breaking the lock of a house sealed by East Delhi Municipal Corporation on Sunday.

An angry bench of Justices Madan B Lokur, Deepak Gupta and Abdul Nazeer also asked Tiwari to be personally present in the court coming Tuesday and explain his act.

The order came after the Monitoring Committee filed a complaint in the court.

Delhi Police yesterday lodged an FIR against Tiwari in connection with the incident.

The property in question had been sealed by the EDMC on Friday for allegedly running an illegal dairy from the premises. Following the FIR, the monitoring committee, appointed by the Supreme Court to identify and seal buildings that violate land use norms, submitted a report in the apex court about the incident.

Based on the complaint from the deputy director (veterinary) Shahadra, north zone, an FIR was registered against Tiwari by the Delhi Police under the Indian Penal Code’s Section 188 and relevant provisions of the Delhi Municipal Corporation Act.

The IPC section pertains to disobedience to an order promulgated by a public servant and punishment under it can be for a maximum term of six months in prison and a fine.