The Delhi High Court has asked the Indian Film and Television Producer Council (IFTPC) and the Indian Motion Pictures Producers’ Association (IMPPA) to consider if any guidelines could be framed in regard to competing film titles registered with them to avoid future conflicts between producers over titles of the film.

“The sanctity to be given to adoption and registration of titles, by persons in the industry, who are members of these bodies, ought to be decided, lest the process of registration becomes meaningless,” said Justice Pratibha M Singh.

The court said so while deciding a suit filed by Prism Motion Pictures Private Limited against Subhash Ghai’s production house Mukta Arts Ltd and IMPPA for infringement of copyright and passing off of its film title ‘Double Trouble’.

Prism Motion Pictures had got the title ‘Double Trouble’ registered for a Punjabi film but did not produce or release the film.

Mukta Arts, on the other hand, adopted the title ‘Double Di Trouble’ and released a Punjabi film with this name.

Prism Motion Pictures told the court that it had got the title ‘Double Trouble’ registered with the IMPPA, which is a voluntary organization working in the film industry and permits producers, directors etc., to register film titles, in order to show the priority of adoption of movie titles.

It said it had applied for the said title in March 2013 and was granted copyright on July 30, 2014, and while it was working on the script and production for the said film, it learnt that Mukta Arts has adopted the title ‘Double Di Trouble’ and the film was released in August 2014.

Prism Motion Pictures moved court seeking an injunction to the effect that Mukta Arts should not be allowed to use the title ‘Double Di Trouble’, which is almost identical to its title.

It also prayed that a voluntary body like the IMPPA ought to be respected by large firms like Defendant No.1 (Mukta Arts) who should not be allowed to overpower a smaller player in the industry like the plaintiff and ignore such a player’s priority of adoption.

Mukta Arts, on the other hand, submitted that it registered its title with the IFTPC on August 30, 2013, while agreeing that Prism Motion Pictures’ application for registration is prior in time.

Justice Singh noted here that Mukta Arts, though a member of the IMPPA, sought to obtain registration from the IFTPC and not the IMPPA and that the IFTPC is also a similar voluntary body, like the IMPPA, which operates in the film industry. The bench held that Prism Motion Pictures holds no copyright or goodwill in the title ‘Double Trouble’ as it has not used the name for any film or programme and merely holds a registration with the IMPPA.

The grievance of the plaintiff is that a voluntary body like the IMPPA ought to be respected by large firms like Defendant No.1 who should not be allowed to overpower a smaller player in the industry like the plaintiff and ignore such a player’s priority of adoption in this manner.

Referring to the Supreme Court’s decision while dealing with the title ‘Desi Boys’, the high court said though film titles may be entitled to protection if substantial reputation and goodwill is established, per se, in the absence of extensive use, they would not be protectable.

Registration Of Film Titles Should Be Given Sanctity

The bench delved into the aspect of adherence to the guidelines related to such voluntary bodies like the IMPPA and IFTPC, as it said, “There is no doubt that these are both bodies which are operating in the Bombay film industry. Defendant No.1 (Mukta Arts) is a member of Defendant No.2 (IMPPA) as also IFTPC. It, however, chose to register its title with IFTPC. It is for the said voluntary bodies to bring out guidelines on their own, to ensure that such conflicts do not occur between their members.”

“The whole purpose of registration of titles with voluntary bodies would be defeated if some sanctity is not given to priority in the adoption of a title. It is a publicly known fact that the process of film production is a long drawn one, beginning with the adoption of title, registering a title, arranging funds, script writing, finalising cast, production of the film, lining up distributors and finally culminating in the release of the film. Since the process is long, the period required for a title to acquire goodwill is also equally long. The sanctity to be given to adoption and registration of titles, by persons in the industry, who are members of these bodies, ought to be decided, lest the process of registration becomes meaningless,” said Justice Singh.

On Mukta Art’s counsel stating that there ought to be coordination between the voluntary organizations such as the IMPPA and IFTPC in order to ensure that such conflicts are not created in the future, and if they do arise, the same can be resolved in an amicable manner, Justice Singh said, “…both the bodies ought to consider if any guidelines need to be framed in respect of registration of titles.”

The court ordered that copy of its order be sent to the IMPPA and IFTPC in order for them to consider if any guidelines in regard to competing titles registered with their respective organisations ought to be passed.

What does the phrase ‘costs made easy’ imply?

In an order disposing of a Special Leave Petition against a Delhi High Court order, the Supreme Court bench had observed: “We think it appropriate to direct that the costs imposed by the High Court and costs imposed by the learned Arbitrator be made easy and it is ordered accordingly.”

It turns out that the arbitrator understood the phrase ‘costs made easy’ to mean that he was directed to reduce the costs. The party again approached the apex court seeking a clarification.

The CJI-headed bench then remarked in the order: “When we said, ‘costs made easy’, it meant, ‘no costs need be imposed’ and we think the order should be understood that way. Accordingly, the order of the learned Arbitrator reducing the costs is set aside.”

The bench further advised the counsel and said: “Having said so, we may also add, learned counsel for the parties appearing before the Arbitrator shall explain the proper nature of the order and need not take the path of unnecessary litigation which is avoidable.”

Costs made easy

It is not the first time this phrase has been used by courts. For example, click here to see a 2003 Supreme Court judgment which ends with the phrase ‘Costs made easy’. And one can find hundreds of judgments using this phrase.

But it seems that such a phrase is not seen used in common parlance. In a grammar discussion forum, a member describes the phrase "Make easy" as an expression used to mean, "To get along with again," or, "to resolve."

Though in legal thesaurus the meaning seems to be obvious, what is the real meaning of the phrase is left for grammar experts to comment upon.

Read the Order Here

The wife and daughter of a retired high court judge were reportedly held hostage in their house in south Delhi’s New Friends Colony on Monday.

According to reports, Riba Kapur, the 78-year-old wife of former Chief Justice Dalip Kumar Kapur alleged that she and her 45-year-old daughter who lives with her were held hostage by the servant and his accomplices. The duo was held at their house in south Delhi’s New Friends Colony.

The version communicated to the police said that the daughter was attacked with an iron rod when they resisted the robbery, and the men then ransacked the house and decamped with cash and jewellery worth around Rs 20 lakh. They fled the spot in the car owned by the mother-daughter duo.

“The women were held hostage in their room and one of the men stood guard outside. The other men ransacked the house and fled with cash and jewellery. The woman’s daughter later called the police control room and informed them about the robbery,” the police was quoted as saying.

Reports claim that the servant was hired just four days before the incident, with the police now having registered a case against them and putting in efforts to nab the accused.

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There cannot be a "blanket ban" on media reporting on cases of rape and sexual abuse but such incidents should not be sensationalised, the Supreme Court said Thursday.

It made the observations after vacating a Patna High Court order restraining the media from reporting on the probe into the Muzaffarpur shelter home case where several women were allegedly raped and sexually abused over a period of time.

Asking both the print and the electronic media not to "sensationalise" incidents of sexual assaults and abuse and report such cases responsibly so as not to reveal the identity of the victim, a bench of Justices Madan B Lokur and Deepak Gupta issued notices to the Press Council of India, Editors Guild of India, News Broadcasting Standards Authority and News Broadcasters Association seeking their assistance in the matter.

The bench said it would need the help of these bodies on the issue of media reporting in such cases as it related to the criminal justice system and press freedom.

"In the meanwhile, the blanket order passed by the Patna High Court on August 23 with regard to media reporting (in Muzaffarpur shelter home case) is vacated," it said.

The bench also restrained the electronic media from telecasting or showing the victims of sexual abuse and violence, even in a morphed or blurred form, saying this would be in the interest of such victims.

"We request the media not to interview the victims. The news of the event may of course be disseminated," the bench said, adding "we also request the electronic and print media not to sensationalise such events".

Senior advocate Shekhar Naphade, appearing for a scribe who has challenged the Patna High Court order, argued that there were guidelines, including on journalistic ethics, and statutory provisions, but these were being violated as the media was conducting "parallel investigations" and trial.

"It appears that there is no mechanism of enforcement and implementation of statutory provisions and guidelines," the bench observed, adding that "in the absence of any mechanism, it is possible that there could be some person, who is not involved in a case, be mistakenly made an accused by the media."

Naphade said 'media trial' of cases cannot be allowed and they should be asked to do factual reporting.

The bench observed that "there cannot be a blanket ban on media reporting. One of the aspects is how do you prevent disclosure of identity (of victims of sexual assaults). The second aspect is conclusions are drawn by the media,"

"They (media) announce a fellow guilty," it said, adding "there cannot be media trials".

The bench then asked Naphade "where to draw the line and how to check it?"

The senior counsel said the media cannot pronounce a person guilty and conduct parallel investigation. "It is the duty of media to report facts. Somewhere, a line has to be drawn. We have to look into it."

Referring to section 228-A of the Indian Penal Code (IPC) which deals with disclosure of identity of such victims, Naphade said the media was taking a "circuitous route", like interviewing the father of the victim, to do this.

He said that under section 228-A, revealing the identity is a cognizable offence and the police is bound to take action in such cases. "If they (media) do not obey this, it amounts to contempt and also abetment of offence. Police has to be alerted," he said.

However, the bench observed, "Tell us about this. We will prepare some guidelines. We may need the assistance of Press Council of India also."

Naphade referred to the Protection of Children from Sexual Offenses (POCSO) Act and said disclosure of a victim's identity is a 'non-cognisable' offence and the apex court could direct the police chiefs of all the states to nominate an officer who could file complaints in this regard before a magistrate.

The bench asked its registry to issue notices to the PCI, Editors' Guild of India, News Broadcasting Standards Authority and News Broadcasters Association to assist the court and posted the matter for hearing after two weeks.

At the fag end of hearing, lawyer Aparna Bhat, assisting the court as an amicus curiae in the matter, referred to an earlier report of the Law Commission and said the same issue was dealt with in it.

Naphade also referred to the Broadcasting Services Regulation Bill, 2006 and said that it has lapsed.

He said the apex court can pass direction under Article 142 of the Constitution, which deals with enforcement of decrees and orders of the Supreme Court, as was done at the time of Visakha guidelines which dealt with the issue of sexual harassment of women at workplace.

"We cannot become Parliament," the bench told Naphade, who said he would circulate the bill among the parties in the case.

On September 18, the apex court had referred to the recent Rewari gang rape case and asked why no action was taken against media houses for flouting the law as "everything has been said" about the 19-year-old victim.

In the Muzaffarpur case, over 30 girls were allegedly raped at the shelter home run by one Brajesh Thakur, the chief of a state-funded NGO.

The alleged sexual exploitation of the girls was first highlighted in an audit report submitted by Tata Institute of Social Sciences to the state's social welfare department. An FIR was lodged against 11 people, including Thakur, on May 31. The probe was later taken over by the CBI.

The Gwalior Bench of the Madhya Pradesh High Court on Wednesday directed the State to remove tiles with pictures of Prime Minister Narendra Modi and Chief Minister Shivraj Singh Chouhan from houses built under the Pradhan Mantri Awas Yojana (PMAY).

The direction was issued by a bench comprising Justice Sanjay Yadav and Justice Vivek Agarwal on a petition filed by journalist Sanjay Purohit, who had reportedly alleged that the state government had not only misused public money but had also tried to take advantage ahead of the Assembly elections by installing these pictorial tiles at the entrance and kitchens of the houses.

During the recent hearing, the Court was informed that the state of MP and its functionaries had withdrawn the direction for installation of such tiles. The authorities were directed to use PMAY logo instead.

In view of this, the Court noted that no further cause survives for adjudication and disposed of the petition as having been rendered infructuous. It, however, directed the tiles already installed to be removed, ordering,

“Needless to say, as there is no authorization/authority in the State functionaries to install the tiles carrying the picture of Prime Minister and Chief Minister, the State functionaries will retrieve all such tiles which have already been fixed carrying picture of Prime Minister and Chief Minister under the Pradhan Mantri Awas Yojana and report compliance within three months.”

The matter has been listed for 20 December for compliance.

The Supreme Court on Thursday ruled that default sentences, inter se, cannot be directed to run concurrently.

The Bench comprising Justice AM Sapre and Justice UU Lalit explained, “Theoretically, if the default sentences awarded in respect of imposition of fine in connection with two or more offences are to be clubbed or directed to run concurrently, there would not be any occasion for the persons so sentenced to deposit the fine in respect of the second or further offences. It would effectively mean imposition of one single or combined sentence of fine. Such an exercise would render the very idea of imposition of fine with a deterrent stipulation while awarding sentence in default of payment of fine to be meaningless.”

The court was hearing a petition filed by one Sharad Hiru Kolambe, challenging an order passed by the Bombay High court in December, 2013, affirming his conviction and sentence pronounced for offences under Sections 364A (kidnapping for ransom), 395 (dacoity), 397 (robbery, or dacoity, with attempt to cause death or grievous hurt) and 387  (putting person in fear of death or of grievous hurt, in order to commit extortion) of the Indian Penal Code and various provisions of the Maharashtra Control of Organised Crime  (MCOC) Act, 1999.

Mr. Kolambe was arrested on 26 August, and was never released during the trial as well as during the pendency of the appeal. He thus completed 14 years of actual sentence in August, 2015. However, he was not released despite an order to the contrary, as he had not paid the amount of fine as directed.

Senior Counsel Colin Gonsalves, appearing for Mr. Kolambe, now submitted that the cumulative fine imposed on him under various counts of punishment was more than Rs. 15 lakhs, and the default sentence in case of non-payment was cumulatively 10 years.

“For a person whose family was reduced to a state of starvation, it was impossible to deposit payment of fine as directed. Resultantly, the appellant would have to suffer default sentence of 10 years. Though the substantive sentence stood remitted and the appellant was directed to be released on completion of 14 years of the actual sentence, the appellant would still be inside till he completes 24 years,” he contended.

He further submitted that since the trial court had directed all sentences to run concurrently, all default sentences must also run concurrently inter se. The maximum default sentence, he said, would thus be 3 years and not 10 years. He therefore asserted that either the default sentences be directed to run concurrently or the default sentences be reduced to the one already undergone by Mr. Kolambe.

The Court, at the outset, noted that default sentence is not to be merged with or allowed to run concurrently with a substantive sentence. It observed, “…the sentence of imprisonment for non-payment of fine would be in excess of or in addition to the substantive sentence to which an offender may have been sentenced or to which he may be liable under commutation of a sentence.”

It went on to note that Sections 31 and 427 of the Code speak of the consecutive and concurrent running of sentences, and then emphasised on the significance of imposition of fine, especially when certain minimum quantum is prescribed and/or mandatory imposition of fine is contemplated.

The Court thereafter opined that if imposition of fine and prescription of mandatory minimum is designed to achieve a specific purpose, the very objective will get defeated if the default sentences were directed to run concurrently. It explained,

“For example, in the present case, in respect of three distinct offences punishable under the provisions of the MCOC Act, fine came to be imposed. Such fine going by the relevant provisions had to be at a minimum scale of Rs.5 lakhs. If the default sentences awarded in respect of each of those three counts under the MCOC Act are directed to run concurrently, the accused may not be inclined to deposit fine in respect of two out of those three counts.”

It further highlighted the fact that while Sections 31 and 427 of the Code specifically empower the concerned court to direct concurrent running of substantive sentences, Section 64 (sentence of imprisonment for non-payment of fine) of the IPC does not stipulate such discretion.

The Court, therefore, rejected the submission regarding concurrent running of default sentences, but opined that Mr. Kolambe deserved a sympathetic consideration about the quantum of default sentence, considering his financial condition.

Therefore, while maintaining the quantum of fine, the court reduced the default sentence to a total of three years and four months, out of which three years had already been undergone by Mr. Kolambe.

Read the Judgment Here

As the hearing on the plea for a SIT probe into the Bhima-Koregaon violence resumed on Thursday, ASG Tushar Mehta, appearing on behalf of the state of Maharashtra, continued walking the apex court through the evidentiary material retrieved from the laptops, harddisks and pendrives of the accused activists.

In the light of Justice D. Y. Chandrachud’s remarks on Wednesday, he assured the bench headed by Chief Justice Dipak Misra that he shall toe the line of distinction between documents that simply embody an opposition to the government and those which represent a subversion of the law and order against the government.

The ASG drew the bench’s attention to several pieces of communication exchanged between the activists, reading excerpts from them- “uncertainty is growing....the enemy forces are strengthening....we are in the process of regrouping and deploying more guards....we need to increase our strength in this region as we have suffered a major setback here....we are waiting for information to gauge the strength of the enemy forces, the ROP (Road Opening Party) shall go before we launch the attack....”

He indicated the mention of guerrilla warfare and Low Intensity Conflict (LIC).

The ASG quoted the talk about “transfer of funds towards the expenditure of further operations” and the supply of some other material which he deliberately refrained from naming. He showed that an activist lawyer, who was subsequently arrested, was being scolded for having been unable to arrange the funds and that the advocate even offered a justification.

Mr. Mehta referred to a statement in the communications recovered that “there are less enemy forces in these six regions and we will find it easier to ambush”. “Four of these places were actually ambushed!”, he corroborated.

A few exchanges the ASG cited were in Hindi-

“in the previous attack, 10-12 members of our group were killed. This will affect the morale of others. So go and say that those died were ‘Adivasis’ (tribals)”

“Congratulations for worsening the enemy’s scenario and killing 25 members of their camp”

“The investigation is ongoing at the ACP level, supervised by the DCP and under the overall care of the DG....the laptops, computers, harddisks, pen drives, memory cards of the accused were forwarded to the FSL (Forensic Science Laboratory) and the time and date of the document and who sent it to whom is clear....we could not have been planting these materials for 6 years only to recover them now....we also have the last log-in and log-out timings which show there has been no interception”, advanced Mr. Mehta.

He urged that the bench not allow the prayer for an independent investigation relying on several cases- “we are at a very premature stage right now....we are not questioning Your Lordships’ jurisdiction but this is not the case where it needs to be exercised....there is no vested right of the accused to seek a monitored investigation....no interference in criminal matters is permitted at the behest of strangers under the garb of a PIL”

On Wednesday, the ASG had argued that of all the activists rounded up in the investigation, only Advocate Surendra Gadling and Shoma Sen have applied for bail; the others not having done so because “they know what has been recovered from them”. “Even Gadling has not proceeded with his bail application. Should he want to, I have no objections. Your Lordships may direct the bail to be decided on merit”, he concluded.

In his turn, Senior Counsel Harish Salve, representing the original complainant and an intervenor before the Supreme Court, Tushar Damgude, submitted, “Yesterday Your Lordships took the view that when such kind of cases come before the court, they shall be examined with a hawk’s eye. That should be the approach where civil liberties are involved....we do have challenges where there is an amalgam of ideologies. But to what extent do we allow an ideology in the market place of ideas? Where do we draw the line?....The second area is what constitutes sedition. Merely saying that the country is not governed well or that the Constitution is not good enough is not seditious. Several senior politicians have made such statements. But there is a distinction between free speech, free thought and unlawful activity....”

“It has become a ‘cut, copy, paste’ template prayer to ask for a SIT. But it has to be seen if the investigation in question is intended to foster a political idea or directed towards detecting acts contrary to the law. In case of the latter, the investigation must be allowed to continue. A SIT may not be set up where an investigation is underway unless Your Lordships have reason to believe that such investigation is not proceeding correctly. A SIT is intended to avert the risk of an investigation being derailed by those who can intercept....if there is no evidence, the accused shall be acquitted upon trial. Even in the 2G case, which involved investigation into allegations of bribery against a minister in office, all accused were freed by the judge, stating that no sufficient evidence was produced in two years....this is, in fact, a problem in our system that our trials are adversarial and not inquisitorial and the judge is confined to the evidence lead by the prosecution”

“To say that we subscribe to a particular ideology and hence, cannot trust this government is a motion of no-confidence against the entire system. Then you cannot trust the Maharashtra government or the NIA (National Investigating Agency) or any other entity....there are four tiers of adjudication- the magistrate, the sessions court, the High Court and ultimately, Your Lordships are here. These prayers for a SIT are not called for. It cannot be a ritual in continuation that I am not happy with the investigation, so I will throw some muck and get a SIT”, Mr. Salve rested his case.

Commencing his rejoinder arguments, Senior Advocate Abhishek Manu Singhvi advanced, “it is common ground that the two FIRs (of January 2 and January 8) do not mention anyone of those in my batch (the five activists arrested in August)....the retired judges who had organised the event (Elgar Parishad) have agreed to it in writing, which forms a part of my rejoinder, and on the TV, but they have not even been interrogated so far because the truth is inconvenient!”

Indicating three letters of the months of April December of last year and one undated, which form a part of the total of 13 which were flashed and distributed by the Maharashtra police on August 31, he argued, “these letters were intended to create a subtext of a real threat by connecting these people to a Maoist plot....letter dated April 18, 2017 is from one ‘R’ to ‘Prakash’ and speaks of a ‘Rajiv Gandhi kind of incident’, the one dated December 26, 2017 is again between the same persons and talks of the purchase of equipment. The third is from ‘Prakash’ to Rona Wilson and discusses the funds utilised by the Tata Institute of Social Sciences....there is no mention in either FIR of this plot to attack the office of the Prime Minister on the lines of the Rajiv Gandhi assassination? Not even a fresh FIR?”

“The heart of the case diary was distributed! A day later, NDTV held a programme where these letters were discussed. I have attached the CDs and the transcripts of both this programme and the press conference by the ADG of Maharashtra Police”, he continued.

Cutting through Dr. Singhvi’s monologue, Mr. Salve raised objections- “I have not seen these papers. The Maharashtra Commissioner has to answer if he has distributed these. The person who is alleged to have distributed them should have been in possession of these documents. How do we know they (the petitioners) have not given them?”

Dr. Singhvi replied that he has procured the documents from the concerned TV channels.

“Did Parambir Singh (Maharashtra ADGP) flash some letters at the press conference or not?”, inquired Justice Chandrachud.

“This is too serious a matter to be filed on affidavit”, responded Mr. Salve.

“The incident transpired in December last year, the raids were conducted in April, the first round of arrests was made in June even without an interrogation and then, in August, my batch was picked up on the allegation of some Maoist plot? If the Maoist plot had surfaced in April, why were there no arrests until August? This is an ex-post facto prosecution, this allegation is an afterthought! There is no whisper of a maoist plot in the FIRs! It comes up only in these letters which were found on the computer of a third person and which were not placed on record in any court of law, not even in the transit remand applications!”, Dr. Singhvi pressed.

It was his case that such a disclosure would be inadmissible under the Unlawful Activities (Prevention) Act by virtue of section 25 of the Evidence Act.

He repeated that the letters are fabricated as they have been either written to or by one ‘Comrade Prakash’, who is none other than Delhi University Professor and Maoist activist G. N. Saibaba and who has been in jail since March, 2017 and consequently, could not have addressed such communications. He reiterated the finding recorded in Saibaba’s conviction order that the latter operates under the name ‘Prakash’. Countering the ASG’s submission that the said order also avers that post the trial, Saibaba had changed names from ‘Prakash’ to ‘Chetan’, Dr. Singhvi said that Saibaba has several pseudonyms, though the name ‘Prakash’ has not been found to correspond to any other individual.

“Republic TV had hosted a show on July 4 over these letters. The very next day, Sudha Bharadwaj (advocate and one of the accused activists) had issued a public statement denying it. Subsequently, she had sent a legal notice on July 16. Republic TV had replied on August 7 that they have received the letter from a confidential source and that they stand by it. This is the level of the percolation into the press!”, contended the Senior Counsel.

He once again expressed his surprise at the ‘Panch’ witnesses having been clerks in the Pune Municipal Corporation in a departure from the procedure which envisages local residents- “they were imported over a distance of 600 kilometres from Pune? the ‘Panchas’ are not appointed to ensure that the conviction succeeds (in response to the ASG’s explanation that responsible government servants were chosen as witnesses to avoid a situation where the ‘Panchas’ turn hostile)....this fails section 41B (of the Cr. P. C.)”

The bench, also comprising Justice A. M. Khanwilkar, reserved its judgment on Thursday.

‘Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence.’

The Supreme Court has held that Food Safety Officers can lodge complaints alleging offences under the provisions of the Indian Penal Code against the persons transporting, stocking and/or selling the prohibited goods.

The bench comprising Justice SA Bobde and Justice L Nageswara Rao in State of Maharashtra vs. Sayyed Hassan Sayyed Subhan observed that there is no bar for prosecution under the IPC merely because the provisions in the FSS Act prescribe penalties. The opposite view adopted by the high court has been set aside.

Pursuant to complaints filed by the Food Safety Officer, the First Information Reports (FIRs) were registered for transportation and sale of Gutka/Pan Masala for offences punishable under Sections 26 and 30 of the Food and Safety Standards Act, 2006 and Sections 188, 272, 273 and 328 of the Indian Penal Code, 1860. The high court quashed the criminal proceedings with respect to IPC sections against the accused and declared that the Food Safety Officers can only proceed under the provisions of Chapter X of the FSS Act. It observed that Section 55 of the FSS Act provides for penalty for non-compliance of the directions of the Food Safety Officers. The state challenged this order before the Supreme Court.

The apex court bench differed with this view adopted by the high court that non-compliance of the provisions of the Act, Rules or Regulations or orders cannot be subject matter of a prosecution under IPC. “There is no dispute that Section 55 of the FSS Act provides for penalty to be imposed for non-compliance of the requirements of the Act, Rules or Regulations or orders issued thereunder by the Food Safety Officer. But, we are afraid that we cannot agree with the conclusion of the High Court that non-compliance of the provisions of the Act, Rules or Regulations or orders cannot be the subject matter of a prosecution under IPC unless expressly or impliedly barred. The High Court is clearly wrong in holding that action can be initiated against defaulters only under Section 55 of FSS Act or proceedings under Section 68 for adjudication have to be taken,” the bench said.

The bench interpreted the scope of Section 188 IPC and observed: “Section 188 of the IPC does not only cover breach of law and order, the disobedience of which is punishable. Section 188 is attracted even in cases where the act complained of causes or tends to cause danger to human life, health or safety as well. We do not agree with the High Court that the prohibitory order of the Commissioner, Food and Safety is not an order contemplated under Chapter X of the IPC.”

Referring to State of Rajasthan v. Hat Singh, the bench said that prosecution under two different Acts is permissible if the ingredients of the provisions are satisfied on the same facts.

The court further, referring to earlier judgments, reiterated that there is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. “Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time, an offence under any other law,” the bench observed holding that there is no bar for prosecution under the IPC merely because the provisions in the FSS Act prescribe penalties.

With regard to the question whether offences are made out, the bench remanded the case to high court directing it to consider whether offences under Sections 188, 272, 273 and 328 of the IPC are made out in the FIRs which are the subject matter of the cases.

‘A workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service.’

The Supreme Court has held that the back wages could not be awarded by the court as of right to the workman consequent upon setting aside of his dismissal/termination order.

In this case, Rajasthan State Road Transport Corporation vs. Shri Phool Chand, the Labour Court converted the punishment awarded to a driver (employee of the corporation) of removal from service to that of “stoppage/forfeit of four annual grade increments without cumulative effect” and directed the reinstatement of the deceased workman in service with award of full back wages for 13 years. As the high court dismissed the challenge against this order, the state assailed it before the apex court.

The bench comprising Justice Abhay Manohar Sapre and Justice S Abdul Nazeer observed that a workman has no right to claim back wages from his employer as of right only because the court has set aside his dismissal order in his favour and directed his reinstatement in service.

Initial Burden On Employee To Prove Entitlement To Back Wages

It said: “It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee.”

The bench further said depending on facts of each case, back wages can be declined in its entirety or it may award partial. The court also cited various judgments and said that the questions such as how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies etc., have been already answered in them. In this case, the bench said there is no pleading or evidence to prove the material facts required for the award of the back wages enabling the court to award the back wages.

However, the bench invoked Article 142, in this case, to award 50 percent of total back wages, taking into account the period and money spent in litigation by the deceased workman and, upon his death, by his legal representatives.

Read the Judgment Here

Seeks to know why victim girls were transferred out by Bihar govt even before TISS report was released

Expecting the CBI to conduct “great in-depth scrutiny” in the sequence of events concerning the Bihar Shelter home sexual abuse case, the Supreme Court on Thursday directed the probe agency to seize all record of the Social Welfare Department to ascertain why some victim girls were transferred out of the Home two months before the Tata Institute of Social Sciences (TISS) report was submitted to the state while also ordering the Bihar police to probe “with some degree of seriousness” the recovery of ammunition from former minister Manju Verma and her husband.

A bench of Justice Madan B Lokur and Justice Deepak Gupta said upon going through the status reports filed by the CBI before the Patna High Court.

The bench also ordered that Income Tax Department should look into the income and assets of Brajesh Thakur and the NGO Sewa Sankalp Evam Vikas Samiti which ran the shelter home in Muzzafarpur.

Considering that neighbours often heard screams of the girls from the shelter home but never dared complaint against it due to Thakur’s terror, the bench also asked CBI to look into his connections, antecedents and influence.

The bench listed few areas which, it felt, needed to be further looked into by the CBI.

The areas which it listed are as follows:

1. It appears that the person-in-charge of NGO Sewa Sankalp Evam Vikas Samiti, Mr. Brajesh Thakur is a very influential person and people in the neighborhood are scared of him and not able to make any complaint against him. In fact it has come out that people in the neighborhood have heard screaming by the girls in the Shelter Home but they do not bring it to the notice of anybody because of the apparent terror of Mr. Brajesh Thakur. The CBI will need to look into the antecedents, connections and influence of Mr. Brajesh Thakur.
2. It has also come on record that the NGO of Mr. Brajesh Thakur, i.e., Sewa Sankalp Evam Vikas Samiti has received about Rs. 4.5 crores from the State of Bihar over a period of about 10 years for its activities. During this period, it has also purchased 35 vehicles. The other assets of the NGO or Mr. Brajesh Thakur do not appear to be very clear. It is necessary, in our opinion, that the Income Tax Department should look into the income and assets of Mr. Brajesh Thakur and indeed of the NGO Sewa Sankalp Evam Vikas Samiti. The CBI team should request the Chief Commissioner/Commissioner having jurisdiction in the area to look into this matter and to investigate the affairs of the NGO and of Mr. Brajesh Thakur from the income tax angle.
3. It has also come on record that one Mr. Chandrashekhar Verma and his wife Manju Verma have been in possession of illegal ammunition of a fairly large quantity. It is not clear whether they were in possession of illegal arms as well. The status report mentions that an FIR has been lodged against Chandrashekhar Verma and Manju Verma. The affairs of these two need to be looked into, particularly with regard to their procurement and possession of illegal ammunition and availability of illegal weapons, if any.

We request the local police in the State of Bihar to look into this aspect with some degree of seriousness.

Did Social Welfare Deptt Knew Of The Activities? Why Were Girls Transferred Out Before TISS Report Blew Off The Lid?

The court also wondered why some victim girls were transferred out on 20th March 2018, by the Social Welfare Department from the Shelter Home, as mentioned in the CBI’s status report.

“It is not clear why these girls were transferred out, particularly when the Report given by TISS became known to the State Government sometime in May 2018. The transfer seems to suggest that the Social Welfare Department of the Government of Bihar was aware of certain unsavoury activities in the Shelter Home and that may have been the reason for the transfer of the victim girls,” the bench noted.

“The CBI should seize the record of the Social Welfare Department in this regard and carry out the investigation. We would also require the State of Bihar to file the affidavit indicating the circumstances necessitating the transfer of some girls out of the Shelter Home by the Social Welfare Department,” it ordered.

The bench has now called for a status report from CBI in a sealed cover within four weeks.

On the request of amicus curiae and the Special Public Prosecutor that since NIMHANS is assisting the CBI in the issue of revelations of the girl victims, they may be permitted to complete the task by the first week of October, 2018, the bench asked other agencies, i.e., TISS, NGO Enfold and any other NGO associated in this regard, for the time being, to permit the CBI and NIMHANS to work on the psycho-social issues and consequent revelations and then other issues of rehabilitation can be taken up by them.

Meanwhile, the court also lifted the gag order imposed on media by the Patna High Court saying there can be no blanket ban but said, “The entire issue needs to be balanced and looked at in the broader view of criminal justice and freedom of the Press” and issued notices to the Press Council of India, the News Broadcasting Standards Authority, the Editors’ Guild and the Indian Broadcasting Federation.

It requested media not to sensationalize such events while restraining the electronic media from telecasting or broadcasting the images of the victims in a morphed or blurred form or interviewing them.

‘It was, therefore, necessary, for the High Court to assign the reasons for not granting enhancement of compensation and/or its reduction.’

The Supreme Court reiterated that the High court while sitting in appeal above a MACT order, should assign the reasons for not granting enhancement of compensation and/or its reduction.

The Motor Accident Claims Tribunal had awarded an amount of Rs.24, 62,065 to a youth who, as a result of the accident, had to suffer “paraplegia” (injury in the spinal cord). Both the claimant and the Insurer approached the Apex court in Appeal. The claimant’s appeal was dismissed as infructuous, while the insurer’s appeal was partly allowed reducing the compensation to Rs.20, 00,000.

Before the Apex court (Sudarsan Puhan vs. Jayanta Ku. Mohanty), it was contended on behalf of claimant that, the High court neither set out the facts, nor dealt with any issue, nor appreciated the ocular and documentary evidence much less in its proper perspective, nor examined the legal principles applicable to the issues arising in the case and nor rendered its findings on any contentious issues decided by the Tribunal except to observe “Considering the submissions of the learned counsel for the parties” and “I feel, the interest of justice would be best served if the awarded compensation amount of Rs.24,62,065 is modified and reduced to Rs.20,00,000”

Perusing the order, the bench comprising of Justice Abhay Manohar Sapre and Justice S. Abdul Nazeer observed that no reasons were given by the High Court as to why the amount of compensation should be reduced and why it cannot be enhanced.

“Mere perusal of the afore-quoted order of the High Court would show that the High Court neither set out the facts of the case of the parties in detail, nor dealt with any of the submissions urged except to mention them, nor took note of the grounds raised by the claimant and nor made any attempt to appreciate the evidence in the light of the settled legal principles applicable to the issues arising in the case and proceeded to allow the appeal filed by the Insurance Company and reduced the compensation”, the bench added.

It further observed that appeal under Section 173 of the M.V. Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence.

The bench then remanded the matter to High Court for deciding the question as to whether any case is made out for further enhancement, and if so, on what grounds.

The Youth Bar Association of India will hold an interactive session on the ‘Role of Bar and Bench in Social Engineering’.

Date: 29^th September

Time: 4:00 PM

Venue: Indian Society of International Law, New Delhi

The function would be graced by Justice Ranjan Gogoi, Chief Justice of India-Designate, as the Chief Guest. Prof. (Dr.) Rajendra Bahuguna, Dean, Uttaranchal University is the special invitee for the session.

The following senior advocates will be speakers in the session:

• Jitendra Mohan Sharma
• Sidharth Luthra
• Rakesh Kumar Khanna

The detailed programme can be accessed here.

“Subject to their production of evidence before the Registrar (Judicial) of the High Court of Madhya Pradesh at Jabalpur, between 2.00 P.M. to 4.00 P.M. tomorrow i.e. on 21/09/2018, of a valid proof of having dispatched their applications either by Speed Post/Registered Post/Courier on or before 21.08.2018.”

In a relief to aspirants for judicial officer posts, the Supreme Court has permitted them to appear for the main examination for selection and appointment to the post of Additional District Judge in the State of Madhya Pradesh, even though their applications reached later than the last date fixed by the high court, due to postal delay.

The last date fixed by the high court for receipt of applications was 25.08.2018. According to the candidates, they all had dispatched their applications on or before 21.08.2018 by Speed Post/Registered Post/Courier. But as the actual delivery of the application forms in the high court was made beyond 25.08.2018, the high court had debarred them from appearing for the main examination.

Hearing the counsel for these aspirants, the bench of Justice Kurian Joseph and Justice Sanjay Kishan Kaul observed: “We are of the view that it is only in the interest of justice that the 208 candidates, who have now been debarred from participating in the main examination, are permitted to participate in the main examination provisionally.”

This direction is subject to their production of evidence before the Registrar (Judicial) of the High Court of Madhya Pradesh at Jabalpur, between 2.00 P.M. to 4.00 P.M. on 21/09/2018, of a valid proof of having dispatched their applications either by Speed Post/Registered Post/Courier on or before 21.08.2018.

The high court was also directed to publish a copy of this order on the website yesterday itself.

The bench then went on to direct the Post Master General concerned to conduct an inquiry as to what was the reason for the undue delay in delivering the postal articles in the High Court of Madhya Pradesh at Jabalpur and submit a report to it within a month.

The Supreme Court on Thursday directed the Union Ministry of Home Affairs and External Affairs to jointly consider the request for release and deportation of a Nigerian national, who is allegedly languishing in Dimapur District Sub Jail, Nagaland since September 2016.

Nweze Raymond Chinenyeuba, a citizen of Nigeria, was taken to custody by Nagaland Police on September 9,2016 as he was found in Dimapur without a valid visa. Though he had a valid passport, he stated that his visa got stolen during his stay in Tamil Nadu. He was booked under Section 14 of the Foreigners Act for remaining in India without valid travel documents.

In the trial before the Chief Judicial Magisrate, Dimapur, he pleaded guilty. On May 25, 2017, the CJM sentenced him to imprisonment for period already undergone under custody. "The lenient view is adopted since the accused has no criminal antecedents and this was his first offence. Moreover, the accused pleads for an opportunity to lead a reformed life", the CJM stated in the order. Thus, the period of 8 months and 17 days which he had undergone in custody since September 2016 was set off by the Magistrate, and he should have been released immediately after May 25, 2017. The CJM had also directed the District Magistrate and Commissioner of Police, Dimapur to take urgent steps to ensure that he reached his embassy.

However, he was not released from Prison despite the CJM's order.He had no access to legal aid, and continued to remain in prison, though his period of sentence was over. On coming to know of his plight, Solomon Shaikh, a public spirited citizen moved representations on his behalf before the Union Ministry of Home Affairs and External Affairs. Solomon also moved a habeas corpus petition in the Supreme Court on behalf of Nweze, stating that he was being illegally detained in contravention of CJM's order.

It was also pointed out in the petition that Nweze's mother passed away in June 2017 and father passed away in October 2017. As per the family customs of Nweze, the eldest son has to perform the last rites of parents. Since he could not go to Nigeria, the mortal remains of his parents are preserved in State Mortuary, Ebony, Nigeria, awaiting his arrival to perform the last rites, stated the petition.

The petition filed through Advocates Abhishek Jebaraj, Abraham Mathews and Nishe Rajan Shonker made extensive reference to the order of the Supreme Court in Bhim Singh v Union of India, where it was held that failure to deport foreign nationals after their sentence amounts to violation of their right to life and liberty. The petition also stated that even non-citizens are entitled to right to life and personal liberty under Article 21 of the Constitution of India, as held by the apex court in National Human Rights Commission v. State of Arunachal Pradesh.

Considering the petition for admission on Thursday, the bench of Chief Justice Dipak Misra, Justice A M Khanwilkar, and Justice D Y Chandrachud, directed the Central Ministry to consider his representation within a period of four weeks.

The Supreme Court on Thursday issued notice on a petition demanding a direction to the authorities to ensure humane treatment of those detained in the detention centres in Assam.

The notice was issued by a bench comprising Justice MB Lokur and Justice Deepak Gupta, which directed the petition to be tagged along with another Intervention Application raising similar concerns over detention centres. Advocate Prashant Bhushan appeared for the petitioner.

The State of Assam has a checkered history of grappling with the influx of migrants from other parts of India and neighboring countries, especially erstwhile East Pakistan and now Bangladesh. Confronted with the problem of alleged “illegal” immigrants, the process of updating the National Register of Citizens in accordance with the Assam Accord (August 1985) has been undertaken. This process is being carried out as per the directions of the Apex Court, which is monitoring the process.

Meanwhile, the Government of Assam has been engaged in detaining individuals who are declared as foreigners by Foreigners Tribunals within detention centres, pending their deportation. The Home and Political Department of the Government of Assam, in the document titled “White Paper on Foreigners’ Issue” dated October 20, 2012 has justified the detention of such individuals stating that it serves the purpose of ensuring that they “do not perform the act of vanishing”. 

The petition, filed by Mr. Harsh Mander, founding member of campaign Aman Biradari for secularism, peace, and justice, now seeks enforcement of fundamental rights under Articles 14 and 21 of the Constitution of India, of those people who are being held in such detention centers in the state.

He seeks redress for violations of fundamental rights and internationally recognized human rights of detainees held presently in six such centres. Such people have been detained either because they have been declared as foreigners by one of the one-hundred Foreigners Tribunals in Assam or after serving out their sentence for illegally entering India, pending deportation.

“…the action of respondents in detaining those declared as foreigners by Foreigners Tribunals as well as convicted foreigners after they have served out their sentence, in six detention centres in Assam, indefinitely and in inhuman conditions, without access to adequate work, recreation, parole, family visits and in deprivation of their rights to health, education, legal aid and appeal, is a violation of Article 21 rights of such detainees,” he asserts.

The petition submits that in the absence of a formal agreement between the government of India and the government of Bangladesh on deportation and repatriation of declared foreigners who are identified by Foreigners Tribunals as Bangladeshis and kept in detention, their incarceration is indefinite, arbitrary and violative of Articles 14 and 21.

The petition is primarily based on the findings of “deplorable conditions” in such centres, as recorded in the report prepared for the National Human Rights Commission (NHRC) by Mr. Mander himself. The report also highlights various rights violations of detainees, including their right to health, education, family unity, work and recreation and access to legal services.

The petition further points out that while on one hand, the government has wide powers of deportation under the law, on the other hand, there are no clear procedures in place for ascertaining nationality of suspected ‘illegal immigrants’ and their subsequent deportation to the country of confirmed nationality. This, it says, compounds the problem of pushbacks of alleged illegal immigrants, leading to violation of International law commitments.

Furthermore, the petition notes that the legal basis for such detention stems from Section 2 and 3(2)(e) of the Foreigners Act, 1946 and Para 11(2) of the Foreigners Order, 1948, under which the Government of India has authorized the Government of Assam to set up such detention centers. It, however, asserts that the capacity for indefinite detention is arbitrary and violative of Articles 14 and 21 of the Constitution of India.

Besides, the Constitutional provisions, it says, are also violated when people are sent to immigration detention without giving them reasonable opportunity of being heard. Additionally, the petition demands safeguards for juveniles in immigration detention, as well as seeks adherence to various international law principles, treaties and conventions for such detention.

Prayers

• Direction to the authorities to ensure fair, humane and lawful treatment of those kept in detention centers in Assam, in conformity with Article 21 of the Constitution of India and international law on the treatment of immigration detainees.
• Direction to the authorities to ensure that detention of declared foreigners should be the last resort, for a limited period with clear prospects for release. Such detention should be non-punitive and should be resorted to only after an assessment of whether there were less restrictive or coercive measures (that is, alternatives to detention) that could have been applied to the individual concerned and which would be effective in the individual case.
• Assurance that in the rare cases in which detention is resorted to as a last resort and for a limited time, families should under no condition be separated during detention.
• Direction to the authorities to ensure that use of prisons and facilities designed or operated as prisons, should be abjured in all cases of such limited detention of foreigners, in keeping with international law standards on immigrant detentions.
• Direction that detainees may be provided free legal aid and proper opportunity to defend themselves in challenging the order of the Foreigners Tribunals in the High Court and the Supreme Court.
• Direction to declare those who have been determined to be foreigners and held in detention pending their repatriation, be treated as refugees.
• Direction that clear policies be adopted for those detainees who agree with the state that they are foreigners; to expedite their applications for deportation.
• Order to the effect that those who have been declared foreigners, but whom their country of origin does not accept as nationals of that country, be declared as Stateless persons and be granted long-term visa and protections that are afforded to refugees.
• Assurance that the Indian juvenile justice laws will be applied to all children of those deemed to be foreigners, including inter alia both the children who are detained and those who are free while their parents are detained. Such children, it demands, be treated as children in need of care and protection (CNCPs) under the JJ Act and be taken cognizance of by the Child Welfare Committees established at district or sub-district levels.

Read the Petition Here

The Uttarakhand High Court has ordered all illegal slaughter houses running in the state to be sealed within 72 hours.

A bench of Acting Chief Justice Rajiv Sharma and Justice Manoj Kumar Tiwari directed the state to ensure that no animals are slaughtered in open in public gaze.

The directions of the court came on a petition moved by Parvez Alam against the illegal slaughtering of animals on open roads and outside the authorized/permitted slaughter houses which he said was prevalent in the state.

He also presented photographs of the same before the bench showing how animals were being slaughtered in a barbaric manner in full public view.

Disturbed with the scene, the bench passed following directions:

1. All the illegal slaughter houses in the state of Uttarakhand are ordered to be sealed within 72 hours from today.
2. The Secretary, Home to the State of Uttarakhand, is directed to ensure that no animal is slaughtered on the streets or open spaces, forthwith.
3. The state government is also directed to constitute a Committee for Slaughter Houses as per the letter dated 26.04.2012 issued by the Ministry of Environment and Forest, if not already constituted, within a period of seven days from today.
4. It is the duty cast upon all the executive officers of the local self-government, municipal corporations, municipalities, nagar panchayats and other panchayats to ensure that no animal is slaughtered in the public streets/paths/roads and at open spaces, open to public gaze.
5. The state government is directed to ensure that no slaughter house is permitted to run without complying with the Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011, more particularly, Part- IV of the said Regulations, till further orders.

During the hearing, the petitioner referred to enactments such as the Uttar Pradesh Municipalities Act, 1916;  Rule 3 of the Prevention of Cruelty to Animals (Slaughter House) Rules, 2001; Solid Waste Management Rules, 2016; Section 106 of Uttarakhand Panchayat Raj Act, 2016.

He also placed on record pictures of the animals being slaughtered brutally.

“These pictures are disturbing and have pricked the conscience of the Court. How, the authorities can permit the slaughtering of animals in the streets, in villages and towns, is beyond our comprehension. Animals also do have constitutional/legal rights. The authorities cannot remain as ‘mute-spectators’ towards the slaughtering of animals, that too, in a very beastly manner,” said the bench.

Relying on Rule 3 of the ‘The Prevention of Cruelty to Animals (Slaughter House) Rules, 2001’, the bench said, “Rule 3 of the Rules enunciates that no person shall slaughter any animal within a municipal area except in a slaughter house recognized or licensed by the concerned authority empowered under the law for the time being in force to do so. It is also stated therein that no animal shall be slaughtered (i) which is pregnant, or (ii) has an offspring less than three months old, or (iii) is under the age of three months, or (iv) has not been certified by a veterinary doctor that it is in a fit condition to be slaughtered.”

The court was also informed that regulations which require a slaughter house to obtain a NOC, to be linked with a meat market etc., is not complied with.

The petitioner also submitted that till date, the state government has not constituted any state committee for slaughter houses to be presided over by the Secretary of the Department of Urban Development of the state as its chairman.

This is in defiance of Supreme Court order in a case titled Laxmi Narain vs. Union of India and others.

The bench noted: “The Hon’ble Chief Minister of the State of Uttarakhand has also made a public statement that the State will not permit opening of any large scale ‘slaughter house’ in the State of Uttarakhand.”

Read the Order Here

Citing literary sources, turning to parables, prose, plays, poetry is the wherewithal of political discourse

Policemen and policewomen are not mindless digits in khaki. They have all been to school. Many of them are MAs, some PhDs. And they have families, friends just like anyone else who has not been clad in hide-tough uniforms the whole day. When at end of duty hours they return home, get back to home-clothes, settle down to a tired day’s evening, like anyone else, they talk of all they went through during the day, good and bad, honest and wicked, how they had to respond to political orders, ‘high’ influence, low intrigue. They laugh then at the ways of the cunning world of which they have become part, and feel sometimes proud of what they did and sometimes not. And then turn on their television sets to watch not news — of which they have had enough and more — but, to lighten their minds, old and new cinema, hear Lata Mangeshkar singing through the lips of Meena Kumari, or Asha Bhosle through those of Madhubala. In States like West Bengal and Maharashtra, with their strong traditions of theatre and musical arts, they can well go to see a play, ‘with family’, based on old epics or written by bold new playwrights staged in theatre-houses invariably named after Tagore, in his grey-flowing beard or the great Chhatrapati Shivaji in his sharp-pointed black one.

Brecht at Bhima-Koregaon

Yet, Bertolt Brecht’s is not a name all policemen on duty in Maharashtra’s Bhima-Koregaon village on January 1, 2018 are likely to have known. The great German playwright is, sadly, ‘niche’. Why sadly? Because he is bound to have amused, inspired, delighted, enthralled the non-kitabi, the not-a-bookworm-at-all as much as the bespectacled ‘intel’. And because Brecht speaks the truth and doesn’t care a hoot whether his truth is seen as the truth or is not. And Brecht’s truth, rather like truth itself, is non-denominational, non-sectarian. The Marathi translation of his timeless play The Good Person of Szechwan is more than likely to have passed by the police force on duty at the village celebrating, as it has done for decades, on that day the great Dalit-Mahar battalion’s vanquishing – disputed by some – of the much stronger army of the Peshwa order known for its rough-handling of Dalits. Only, this year the celebration was the more celebratory, being the centenary year of that 1818 victory. And since one group’s celebration is seen as another group’s lamentation, ‘law and order’ was a concern. And rightly so. Violence and counter-violence saw ‘the law’ swing into action, ‘order’ asserting itself. And months later, arrests are still being made. Has all this been without ‘fear or favour’? The courts will, without doubt, tell us.

Those who know Brecht’s play laugh at lines in it like these:

“I am afraid of making enemies of other mighty men if I favour one of them in particular. Few people can help us, you see, but almost everyone can hurt us.”

“Stomachs rumble even on the emperor’s birthday.”

“The First God: Do people have a hard time here? Wang the water-seller: Good people do.”

“The First God to Shen Te the prostitute: Above all, be good, Shen Te, Farewell!”

“Shen Te: But I am not sure of myself, Illustrious Ones! How can I be good when everything is so expensive?”

“The Second God: We can’t do anything about that. We mustn’t meddle with economics!”

And they would have understood, with a sigh, the line: “No one can be good for long when goodness is not in demand.”

The same play, one of the funniest, wittiest, most profoundly thoughtful and mind-rinsingly disturbing in that genre, has the woman prostitute-protagonist burst out with the words: “Unhappy men! Your brother is assaulted and you shut your eyes! He is hit and assaulted and you are silent!… What sort of a city is this? What sort of people are you? When injustice is done there should be a revolt in the city. And if there is no revolt, it were better that the city should perish in fire before the night falls…”

In Ambedkar’s words

In words that powerfully echo Brecht’s, the architect of our Constitution, Babasaheb Bhimrao Ambedkar, said in the Constituent Assembly: “How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.”

Here is a great, perhaps the greatest, German writer of our times, using a Chinese parable to give the world a touch of truth about the human condition, the human propensity for domination and the human impulse for freedom, justice. And when on January 1, 2018, in the Bhima-Koregaon event these lines with a timeless and location-free message were recited in their Marathi rendering, they were seen as “an incitement to violence”. If, instead of Brecht’s the reciter had cited Babasaheb’s words, would he have been charged with incitement to violence? Today, who can tell?

Mohandas Gandhi was charged, likewise, in the spring of 1922 “for inciting disaffection towards His Majesty’s government” for articles by him published in Young India. In one of them, titled ‘Shaking the Manes’, he used a phrase from then current political discourse and ‘shook’ the Raj. The accused said in his famous trial: “I have no personal ill-will against any single administrator, much less can I have any disaffection towards the King’s person. But I hold it to be a virtue to be disaffected towards a government which in its totality has done more harm to India than any previous system.”

We have our own Brechts.

Just before the declaration of the national emergency in 1975, Jayaprakash Narayan had, before a massive rally in Delhi, quoted the great Hindi poet Ramdhari Singh Dinkar’s lines: “Singhasan khali karo ki janata aati hai (vacate your throne, here come the people).” We know what happened thereafter to JP, to India. Also, what happened subsequently to the system that imprisoned him.

We shall see

Faiz Ahmad Faiz’s poem Hum Dekhenge (We Shall See) is a classic in the same vein, quoted time and again as a call against oppression.

Citing literary sources, turning to parables, prose, plays, poetry is the wherewithal of political discourse. Our Prime Minister has in a Dinkar commemoration cited the same line with pride.

Just as policemen on duty are only human beings in uniform, so are lawyers in black silk. They know true from false, fact from fiction.

India, the theatre from time immemorial of a hundred injustices, a thousand oppressions is also the site of a million awakenings. Therein lies its strength.

Kuchh bat hai (there is that something), as Iqbal sang, about Hindustan that cannot let its self-hood fade.

Gopalkrishna Gandhi, a former Governor of West Bengal, is a distinguished professor of history and politics, Ashoka University.

The Supreme Court on Wednesday appointed Mr. Nandan Nilekani for examining the possibility of a computer network based or artificial intelligence based technological solution for inspection of medical colleges by the Medical Council of India (MCI).

The petitions before the court had initially been filed by private medical colleges which had been denied permission to admit students in M.B.B.S Course for the academic year 2017-18 by the Centre. The petitioners had mainly contended that they had been denied permission in spite of the Centre having found that either these colleges have no deficiencies or that such deficiencies are negligible.

The Court had then, in September last year, allowed the petitions, noting that the deficiencies in these colleges were in fact marginal and that the colleges are largely compliant. It had however lamented the litigation, observing,

“In these writ petitions, this Court was compelled to take note of the annual recurrence of this kind of litigation which creates high pressure and anxiety for the students, medical institutions and all concerned. All the learned counsel appearing for the parties agreed that it is high time some deterrent measures be laid down for the colleges and the state authorities from doing acts which generate such last-minute litigation.”

Thereafter, several incessant disputes were raised, pertaining to the question of what actually transpired at inspections of various private medical colleges by the MCI. The parties, it noted, virtually contested every fact that was recorded in the inspection.

Amicus curiae Kapil Sibal had then suggested employing of a computer network based technological solution, which might include artificial intelligence. For this purpose, he had requested the appointment of an expert in the field, like Mr. Nandan Nilekani. The suggestion was supported by Mr. Gaurav Sharma, who was representing MCI.

“We accordingly request Mr. Nandan Nilekani to go into this problem and give concrete suggestions to this Court at the earliest,” the Court therefore directed.

MCI was further requested to convene a meeting with Mr. Nilekani, Mr. Sibal and any other counsel who may be interested in the matter, either at New Delhi or any other place in India within a period of 15 days. Mr. Sibal is expected to chair the meeting.

In the meantime, Mr. Sharma was directed to prepare a written note highlighting the issues that need to be taken up by Mr. Nilekani to provide solutions to the issues highlighted.

It was left open for Mr. Nilekani to take technical assistance from various IT companies like Wipro, Infosys, Accenture, etc. for presenting appropriate suggestions before the court. The matter has now been listed after six weeks for further hearing.

Read the Order Here

In a relief to first stage dealers, the Gujarat High Court has struck down provisions of the GST law that prohibit transition of excise duty credits on purchases prior to June 30, 2016. The law basically did not permit credit of invoices that were more than one-year-old i.e., invoices which were dated prior to June 30, 2016.

The Bench comprising Justice Akil Khureshi and BN Karia opined, “retrospective effect in relation to goods which were purchased prior to one year from the appointed day. This retrospectivity given to the provision has no rational or reasonable basis for imposition of the condition. The reasons cited in limiting the exercise of rights have no co-relation with the advent of GST regime. Same factors, parameters and considerations of “in order to co-relate the goods or administrative convenience” prevailed even under the Central Excise Act and the CENVAT Credit Rules when no such restriction was imposed on enjoyment of CENVAT credit in relation to goods purchased prior to one year.”

It consequently struck down as unconstitutional section 140(3)(iv) of the Central Goods and Services Tax Act, 2017, which imposed the impugned condition.

The Court was hearing a petition filed by Filco Trade Centre Pvt. Ltd., which had primarily contended that prior to the enactment of the new regime, as a first stage dealer it was not burdened with the excise duty paid on the purchases and this was without any restriction on time during which the goods must be sold. In the earlier regime, the first stage dealers were placed at par with manufacturers. A registered manufacturer could avail CENVAT credit of tax paid on purchases which could be utilized towards duty liability of goods manufactured by him.

As against this, a first stage dealer or an importer could pass on the credit of tax paid on their purchases to the customers who could utilize such credit against their duty liability on product manufactured by them. The new provision, however, imposed a condition for availing of such a benefit.

The petitioner had then pointed out that they have sizeable stock of goods purchased prior to the said period and on which, by virtue of the said condition, no CENVAT credit would be available.  This was challenged as being arbitrary and discriminatory.

Examining various judgments, the court noted that the right that the petitioner had to pass on the credit of excise duty paid on goods purchased at the time of sale of such goods was a vested right. The condition later imposed on this right, it then opined, “restricted the enjoyment of existing credit in respect of goods purchased not prior to one year of the appointed day.”

“However, in addition to these findings, we also find that no just reasonable or plausible reason is shown for making such retrospective provision taking away the vested rights. Had the statutory provision given a time limit from the appointed day for utilization of such credit, the issue would stand on an entirely different footing. Such a provision could be seen as a sunset clause permitting the dealers to manage their affairs for which reasonable time frame is provided. The present condition however without any basis limits the scope of a dealer to enjoy existing tax credits in relation to purchases made prior to one year from the appointed day. No such restriction existed in the prior regime,” it further observed.

The Court therefore ruled that even though the impugned provision does not make hostile discrimination between similarly situated persons, it does impose a burden with retrospective effect without any justification. It, however, stayed the judgment upto 31 October, at the request of the counsel for the Revenue.

Read the Judgment Here