The Competition Commission of India has held that cab aggregators Ola and Uber are not indulging in price fixing in contravention of the Competition Act.

On November 6, the CCI dismissed a complaint filed by Samir Agrawal, a legal practitioner, alleging that the the algorithmic pricing adopted by the aggregators takes away the liberty of individual drivers to compete with each other and thus amounts to price fixing by them in contravention of the provisions of Section 3 of the Act.

Two more allegations were raised by him. One, the condition in the agreement between drivers and the aggregators prohibit drivers to offer services at a price lower than the algorithmically fixed prices, resulting in fixation of minimum resale price maintainance agreement in contravention of Section 3(4)(e) of the Act. Next it was alleged that owing to information asymmetry they price discriminate to the disadvantage of the riders.

He submitted that unlike platforms like like Airbnb, Zomato, Trivago etc., Ola & Uber does not give room for drivers to freely negotiate price with riders. It was his further contention that the drivers and the aggregators have colluded through their agreements to artificially fix prices at an inflated level manipulating their monopoly over information, and this was akin to a 'hub and spoke' arrangement, where individual dealers use a third party platform conspiring to manipulate sensitive information to fix prices. It was contended that the arrangement was similar to cartelization, which was frowned upon by the CCI in Builders Assocation v Cement Manufacturers Association case.

The CCI rejected all the allegations through a 13-page order passed by a coram of Chairperson Sudhir Mital, Augustine Peter and U.C Nahta.  It was held that prices were fixed by the algorithm on the basis of personalised information of riders along with other factors e.g. time of the day,traffic situation, special conditions/events, festival, weekday/weekend which all determine the demand-supply situation.

Resultantly, the algorithmically determined pricing for each rider and each trip tends to be different owing to the interplay of large data sets. It was noted that "the dynamic pricing can and does on many occasions drive the prices to levels much lower than the fares that would have been charged by independent taxi drivers".

The CCI found that the arrangement was not a "hub and spoke" arrangement as there was no conspiracy or collusion amongst drivers and aggregators to fix price by manipulating information. The prices were automatically fixed by the algorithm on a combination of factors.

"For a cartel to operate as a hub and spoke,  there needs to be a conspiracy to fix prices, which requires existence of collusion in the first place. In the present case, the drivers may have acceded to the algorithmically determined prices by the platform (Ola/Uber), this cannot be said to be amounting to collusion between the drivers. In the case of ride-sourcing and ride-sharing services, a hub-and-spoke cartel would require an agreement between all drivers to set prices through the platform, or an agreement for the platform to coordinate prices between them. There does not appear to be any such agreement between drivers inter-se to delegate this pricing power to the platform/Cab Aggregators. Thus, the Commission finds no substance in the first allegation raised by the Informant", the order stated.

It was found that there was no agreement or meeting of minds between the drivers and aggregators, and also between drivers inter-se to fix price

The second allegation regarding minimum resale maintainance was rejected on the ground that there was no 'resale' in the context of app-based cab services.

"While the drivers offer the physical service of transportation to the riders and are legally independent entities, they are effectively extensions or agents of the OPs when they operate through the OPs’ platforms. A single transaction takes place between the rider and Ola/Uber, who provides a composite service of the driver-rider matchmaking, the ride, GPS tracking etc. and price is generated only once. The OPs, by performing a centralized aggregation function that rests on algorithmic determination of prices, have the sole control over prices. In absence of any resale of services, the allegation of resale price maintenance is not tenable", held the order.

It was noted that no evidence was produced to suggest that the price determined by the algorithm will be necessarily higher than the prices that are negotiated by drivers and the riders on an individual trip basis.

The allegation regarding price discrimination due to information asymmetry was rejected on the ground that Ola and Uber were alleged to be dominant players in the app-based cab market. Imposition of discriminatory price is prohibited under Section 4(2)(a)(ii) of the Act only when indulged in by a dominant enterprise. Reference was made to an earlier order passed by CCI holding that Ola, Uber do not hold a dominant position in the market.

The CCI also distinguished its decision in Cement Manufacturers' Association case. The situation of cement manufacturers colluding through a trade association to manipulate pricing cannot be equated to app-based cab services. Ola and Uber are not an association of drivers, rather they act as separate entities from their respective drivers. The rider is booking service of an anonymous driver and there is no scope for a driver to co-ordinate with other drivers.

The comparison of the Ola/Uber App with Airbnb, Trivago and Zomato etc. was held to be  misconstrued . The consumers buying through Zomato have a preference for a particular restaurant, and consumers booking hotels through Trivago wishes to know the options available in terms of their offerings and characteristics etc. It cannot be equated with a Cab Aggregators’ app where the consumers have no material information about the drivers available in its area of demand. "The rides offered by individual drivers, through Ola/Uber App constitute homogenous products where riders are indifferent between different drivers registered with a particular Cab Aggregators", it was held.

“If it is held that the husband, in absence of any application for grant of custody can maintain his application for visitation right will advance the object of the provision.”

The Bombay High Court recently upheld a lower court order that allowed an application filed by a father under Section 21 of the Domestic Violence Act, granting him visitation rights to his child.

In this case, the wife had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, seeking relief under Sections 18, 19, 20, 21 and 22 of the said Act. An application filed by the husband under Section 21 of the Act in the said proceedings was allowed granting him visitation rights to keep custody of his child for 48 hours for twice in a month. This order was upheld by the district court.

The wife then approached the high court contending that the husband has no right to independently prefer an application for custody orders as contemplated under Section 21 of the Domestic Violence Act, 2005.

The relevant provision itself says that such an application u/s 21 of the DV Act can be preferred by the aggrieved person or any person on her behalf during the pendency of her application under for any reliefs under the DV Act.

But, Justice Prakash D Naik observed that such an interpretation will render the provision incomplete. The court observed: “If the interpretation given on behalf of the wife aggrieved parties accepted it will render the provision incomplete as in case where wife – aggrieved party seeks custody of the child, if the child is in custody of the husband and an order of custody is passed in favour of the aggrieved party, visitation right can be granted to the husband. But if custody lies with the wife – aggrieved party, than the husband will have no remedy of visitation right if the interpretation as contemplated by the wife – aggrieved party is given effect to and thereby it can easily be said that interpretation given by the aggrieved party – wife will never advance the cause of the child. On the other hand, if it is held that the husband, in absence of any application for grant of custody can maintain his application for visitation right will advance the object of the provision as in case of child being in custody of the husband, application for custody can be filed by the wife wherein the husband can have visitation right if order is of custody of child passed in favour of the aggrieved party. In other situation, when the custody of the child lies with the wife, there would be no occasion for the wife for filing an application for custody. In that situation, husband will have remedy to have visitation right by filing application to that effect. The said interpretation and observations can be applied in the present case.”

The court also rejected the contention put forth on behalf of the wife that the husband could have approached other forums. It said: “The respondent had not asked for custody of the child for the simple reason that the child is already in her custody. It is the respondent i.e. father who has sought merely visitation right to his son which right was granted to him by the Trial Court that too for limited days. In case the visitation right is not given to the petitioner, minor child would be deprived of father's love and affection. The paramount consideration is welfare of child. The petitioner could not be faced to seek remedy either under the Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956, as observed by the Sessions Court as it would lead to multiplicity of litigation. The Act is a self contained code.”

The court finally upheld the order passed by the Metropolitan Magistrate.

Read the Judgment Here

Finally, Andhra Pradesh will get its own high court in Amaravati on 1^st January 2019. The present high court building in Hyderabad would be housing the High Court of Telangana.

The Supreme Court on 29^th October passed an order wherein it said that it expects a notification bifurcating the courts into the High Court of Telangana and High Court of Andhra Pradesh to be issued by January 01, 2019.

“Since all the requirements stand fulfilled, there is no embargo for the Competent Authority to issue a Notification bifurcating the courts into the High Court of Telangana and High Court of Andhra Pradesh respectively. .. We expect such a notification to be issued by January 01, 2019 so that the two High Courts start functioning separately and High Court of Andhra Pradesh also starts functioning in the new building at the earliest,” said the bench comprising Justice AK Sikri and Justice Ashok Bhushan while disposing an appeal filed by Union of India.

The Central Government had filed an appeal against the direction of high court direction which had allowed the functioning of two high courts within the same premises. It contended that such a direction is misplaced and impermissible under the provisions of Sections 30 and 31 of the Andhra Pradesh Reorganisation Act, 2014.

Senior Advocate Mukul Rohatgi, appearing for State of Telangana, told the court that the state was ready to provide a separate building in the city of Hyderabad itself where the High Court of Andhra Pradesh can be temporarily shifted till the time the state constructs its own building in Amaravati. Fali S Nariman, appearing for State of Andhra Pradesh, informed the court that the makeshift building in Amaravati for housing the high court is almost ready and would be completed by December 15, 2018.

“One thing is clear from the aforesaid narration. Union of India, State of Telangana as well as State of Andhra Pradesh want the creation of two High Courts as early as possible,” the court said.

The court also perused the affidavit filed by High Court of Judicature for the States of Telangana and Andhra Pradesh and said the judges of the high court, who would become judges of High Court of Andhra Pradesh, are satisfied with the facilities in the said building.

The court also recorded the submission made on behalf of state of Andhra Pradesh that, in Amaravati a very big complex known as 'Justice City' is under construction where the high court and subordinate courts and even some tribunals would be accommodated and there is a provision for construction of residential complex for the judges of the high court and judicial officers of the subordinate courts.

“Our society has tremendous faith in religious ‘Gurus’ and they are treated by the public, equivalent to God and normally devotees submit themselves to such ‘Gurus’ unconditionally and obey their dictates like an obedient child.”

While rejecting bail plea of a ‘godman’ accused in a rape case, the Himachal Pradesh High Court has observed that offence committed by a person pretending himself a pious/spiritual person is more serious than an impious person, particularly when the commission of such an offence shakes the trust of society at large.

Justice Vivek Singh Thakur made this observation while dismissing bail petition of Anand Gopal, who was accused of raping a woman, in whose house he had come for a ‘satsang’.

In the order, the judge said: “Our society has tremendous faith in religious ‘Gurus’ and they are treated by the public, equivalent to God and normally devotees submit themselves to such ‘Gurus’ unconditionally and obey their dictates like an obedient child. An offence committed by a person pretending himself pious/spiritual person is more serious than a impious person, particularly when commission of such an offence shakes the trust of society at large. Breach of faith by a person of higher status has deep hurting impact on society. Higher the faith deposed by the society higher the responsibility to keep it.”

The court, upholding the session’s court order that denied him bail, observed that courts have to be sensitive to legitimate social sentiments and must respond taking into the larger interest of society. It also added that this is a case where a lady has been exploited by taking undue advantage of fiduciary relationship resulting into the breach of faith of the society at large, grant of bail to the petitioner at this stage may also have an adverse impact on the society.

“The petitioner has a right to liberty under Article 21 of the Constitution of India, but balance has to be maintained between the personal and societal interest,” the bench said.

The Calcutta High Court has stayed the notice cancelling online courses offered by the West Bengal National University of Juridical Sciences in collaboration with private parties, for students who had enrolled themselves before June 27, 2018.

Justice Protik Prakash Banerjee clarified that the stay will continue for a period of two months after reopening of the court or till further orders.

The court was hearing a petition filed by three students of an online course offered by NUJS. They had paid for the course only to be informed later that the courses had been “suspended till further orders”.

A circular dated June 27, signed by assistant registrar Tapash Bhattacharya said that “all future activities pertaining to Distance Education and Online courses should be put on status quo, except those which are purely University initiatives”. It added that “any person enrolling for these courses would be doing it at their own risk and the University shall not be held responsible for such matters”. 

The court opined that this memo meant that while further enrolment has been stopped, all students enrolled for such distance education before June 27 shall be entitled to complete the course and receive certification, since status quo has been ordered and nothing has been said about refunding the fees paid by the students.

However, another notice was issued last month, stating that all online courses run by NUJS in association with private parties have been stopped by the Executive Council.

Scorning at the chain of events, Justice Banerjee then opined that the course of action adopted by the University affecting the rights of students without prior notice to them or returning their fee is “arbitrary and does not become a premier institution such as the National University of Juridical Sciences”.

The court further raised questions on the involvement of a private party which had tied up with NUJS for offering online courses, observing, “I do not know how the respondent no.2 could have been involved in the matter with the respondent no.1 since the latter is not a university and cannot on its face offer any On-line certification without having a tie-up with any university which has been granted permission by the University Grants Commission to offer Distance Education. Why the respondent no.1 decided to tie-up with such a private party is also not disclosed.”

It then asserted that online courses for which the students had enrolled prior to June 27, 2018 should have been completed by the respondents. It, therefore, observed that the first circular should be prospective, and therefore the operation of the second notice must remain stayed for those who enrolled themselves and paid the fees prior to June 27.

The matter was directed to be placed before the Regular Bench within one week of reopening of the court after long vacations.

It may be noted here that online course developer iPleaders, which was the technical provider for the greatest number of distance courses being offered by NUJS at the time of the notice, had recently issued a public statement claiming that NUJS’ move was illegal and arbitrary.

The statement, issued by iPleaders co-founder and NUJS graduate Ramanuj Mukherjee, alleges that NUJS has not paid iPleaders its dues for several months now since the change in its administration, with interim Vice Chancellor (VC) former Justice Amit Talukdar taking over from former VC Ishwara Bhat in April. Asserting that NUJS has dishonoured the terms of its memorandum of understanding (MoU) with iPleaders, the statement says that the latter is now forced to invoke the MoU’s arbitration clause as well as to approach the courts for justice.

Mukherjee had, in fact, urged affected students of the suspended courses to approach the court against NUJS, stating, “NUJS has certain responsibilities in connection with the courses under our contract, and we will pray to the Courts that NUJS continues to do so for students who are already studying the courses. However, students approaching a court directly with respect to education promised by a University will stand a superior chance than a private party enforcing a contract.”

Read the Order Here

US Attorney General Jeff Sessions has resigned as the country's chief law enforcement officer at the request of President Donald Trump. Chief of Staff to the Attorney General, Matthew G. Whitaker has been appointed as the Acting Attorney General until a permanent replacement is nominated.

Broadcasting the decision, President Trump tweeted on Wednesday: “We are pleased to announce that Matthew G. Whitaker, Chief of Staff to Attorney General Jeff Sessions at the Department of Justice, will become our new Acting Attorney General of the United States. He will serve our Country well (sic).

“We thank Attorney General Jeff Sessions for his service, and wish him well! A permanent replacement will be nominated at a later date.”

The tweet came less than an hour after Trump’s marathon press conference at the White House, where he informed reporters that he’d be making announcements about changes in his Cabinet and senior White House and Administrative positions soon.

Sessions’ resignation letter makes it apparent that President Trump had requested his resignation. The letter said that he was honoured to have worked "to implement the law enforcement agenda"that formed a central part of the Trump campaign for the presidency.

"We did our part to restore immigration enforcement," he wrote. The former senator was a key figure in implementing Trump's anti-immigration agenda.

He had, however, faced constant personal criticism over the past year from Trump over his recusal from the investigation into potential coordination between Russia and the Trump campaign.

Trump largely blames Sessions’ decision for opening the door to the appointment of special counsel Robert Mueller, who took over the Russia investigation and began examining whether Trump's hectoring of Sessions was part of a broader effort to obstruct justice.

‘Our order dated 03.10.2018 is unambiguously clear that the status quo as on 07.09.2018 should be maintained by the parties.’

Last week, the Supreme Court asked the State of Karnataka to hand over the administration of Gokarna temple back to Ramachnadrapura Math, for now.

The Karnataka High Court had quashed the decision taken by the state government in the year 2008 to hand over Gokarna Temple to Ramachandrapura Mutt holding that the same was not for a bona fide purpose but to confer a benefit on the mutt. The high court had also constituted an “overseeing committee”.

Against this verdict, the Math had approached the apex court and the CJI-headed bench had observed that the interim order passed by the high court after pronouncement of the final judgment shall continue, in the meantime.

The bench again clarified the said order in a later order on 3^rd October 2018. It had said: “Since we have clarified that this Court actually intended in the order dated 07.09.2018 that the parties should maintain status quo as on that date i.e. 07.09.2018 forthwith. The order dated 18.09.2018 passed by the Government will stand recalled.”

As the government did not hand over the charge back to the Math, they filed a contempt petition. The bench headed by Justice Kurian Joseph, on 1^st November, passed this order.

“Our order dated 03.10.2018 is unambiguously clear that the status quo as on 07.09.2018 should be maintained by the parties. Taking over of the charge is on 19.09.2018, though the same is pursuant to orders passed earlier. Since the Court has made it clear that the status quo as on 07.09.2018 should be maintained, there is nothing further to clarify.”

Directing the state to hand over charge to the Math before 5^th November, the bench said: “There is no question of the Executive Officer continuing since the Executive Officer had not taken charge as on 07.09.2018. In case anything is kept with the Executive Officer, he will return the same in terms of our order dated 03.10.2018.”

The court then listed contempt petitions after four weeks.

The Allahabad High Court recently directed the Industrial Development Bank Of India (IDBI) to consider the representation by an alleged “wilful defaulter” before taking any “drastic steps” against him.

The Bench comprising Justice B.Amit Sthalekar and Justice Rajiv Joshi ordered the bank to consider the representation by Mr. Sanjiv Aggarwal within a month, and also allow him an opportunity of personal hearing and filing of any documents. Mr. Aggarwal was represented by Advocate Anoop Trivedi, assisted by Advocates Abhishek Tripathi and Abhinav Gaur. The respondent bank was resented by Advocate Pranjal Mehrotra.

Mr. Aggarwal is a director of M/s Tirupati Inks Limited, which had availed financial assistance of more than 34 crores from Bank of Baroda, Punjab National Bank, Oriental Bank of Commerce, ICICI Bank, Syndicate Bank and IDBI by way of Consortium Lending led by Punjab National Bank.

On the company falling behind its payment schedule, IDBI served upon it a statutory demand notice under section 13 (2) of Securitisation and Reconstruction of the Financial Assets and Enforcement of Security Interest Act, 2002. These proceedings were initiated despite the pendency of a reference under Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1986 before the Board for Industrial and Financial Reconstructions (BIFR).

Mr. Aggarwal had now challenged the validity of an order passed on August 6 by IDBI declaring him a “wilful defaulter” and directing his name to be included in the “List of Wilful Defaulters” maintained by Credit Information Bureau India Limited (CIBIL). He had also challenged another order passed by IDBI on September 15, directing publication of his name and photograph in newspapers and magazines, declaring him a wilful defaulter.

He had essentially contended that the impugned orders were passed without granting him any opportunity of being heard, in violation of the principles of natural justice. He had further submitted that the orders were passed in violation of the Master Circulars issued by the Reserve Bank of India providing that in cases of consortium lending by multiple banks, the consortium shall take unanimous decisions with respect to legal proceedings against the borrower, and a member bank cannot proceed independently without the approval of the other consortium members.

Mr. Aggarwal had therefore asserted that IDBI did not have any independent right against him as the financial assistance granted to the company was never given by it in its independent capacity.

In its order, the court noted that Mr. Aggarwal had submitted a representation to IDBI, requesting it to give him an opportunity to defend himself before the bank. Directing the bank to consider this representation and give him a personal hearing, the court ordered,

“We, therefore, think it appropriate that before any drastic measure is taken by the bank by virtue of the order dated 15.9.2018, the respondent bank should decide the petitioner's representation dated 6.10.2018 which was sent by registered post on the same date and also give him an opportunity of personal hearing.”

It further directed that the operation of the impugned orders shall remain in abeyance and shall be subject to the final order passed by the bank.

The High Court of Kerala today declined the prayer to direct Travancore Devaswom Board to file review petition in the Supreme Court against the judgment in Indian Young Lawyers' Association case, which permitted entry of women on all age groups to Sabarimala temple.

It was submitted on behalf of the petitioner M K Gopinath that Devaswom Board was a trustee of the deity and therefore had to act as per the wishes of the deity. The petitioner also sought a direction to the Government to file an affidavit in the Sabaramila matter reflecting the interests of majority of Ayyappa devotees to preserve existing traditions.

The Division Bench of Justices P R Ramachandra Menon and N Anilkumar held that no such directions can be issued to the Board and the Government. The decision to not seek review cannot be regarded as a dereliction of statutory duty so as to warrant judicial interference. The decision of the Government to not seek review could be because of the fact that it had not opposed women entry as per its affidavit filed in 2016, observed the Court.

Petitions seeking removal of Devaswom Board Member Shankar Das on the ground that he had violated temple customs by ascending the holy 18 steps without the mandatory "irumudikettu" also came up before the Division Bench. However, the Division Bench held that the petitions had to be dealt with by a Single Bench first as per the procedure in Section 9(3) of the Travancore Cochin Hindu Religious Institutions Act. Only if the Single Bench finds prima facie case, the matter can be referred to the Division Bench. Hence,the petitions were directed to be posted before the Single Bench. The Court also orally observed that Board Member can be removed only in case of "proved misbehaviour or incapacity"

The Delhi High Court recently recognised the National Council for Teacher Education (NCTE) as being the authority for declaring the equivalence of courses undertaken by candidates with the educational qualification prescribed by the eligibility criteria for appointment as teachers.

The order was passed by a Bench comprising Justice Vipin Sanghi and Justice AK Chawla on a petition filed by one Rohitash Kumar Verma, challenging an order passed in November, 2016 by the Central Administrative Tribunal, Principal Bench, New Delhi.

Mr. Verma was aggrieved by the non-issuance of appointment letter to him for the post of a primary teacher, even though he had been found eligible for participation in the selection process as per the prescribed rules.

He had been declared as selected by the Delhi Subordinate Service Selection Board (DSSSB), which sent his dossier to the South Delhi Municipal Corporation (SDMC) and Director of Education, SDMC, along with the dossiers of all other selected candidates. After verification, he was issued an appointment offer, to which he sent his acceptance.

However, at this stage, the respondent authorities raised objections regarding Mr. Verma’s qualifications. They asserted that the B.Ed Bal Vikas Integrated Course Degree obtained by him was not equivalent to the prescribed eligibility criteria of “two year’s Diploma/ Certificate Course in Elementary Teacher Education Course/ Junior Basic Training or equivalent or bachelor of elementary education from a recognised institution”.

Mr. Verma had contended that NCTE is the statutory authority empowered to lay down the norms with regard to the recognition of teacher training courses all over the country. Since the course undertaken by him has been recognized by NCTE, his qualification meets the eligibility criteria, he had submitted.

He had further pointed out that the respondent authorities had in fact sought NCTE’s opinion on the issue of his eligibility and that NCTE had responded by stating that his qualification is an equivalent qualification for the post.

The counsel for NCTE had also supported Mr. Verma’s case, pointing out that the NCTE Act is a central piece of legislation enacted by the Parliament empowered by Entry 66 of List I to Schedule VII to the Constitution of India which reads “co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.”

He submitted that institutions imparting teacher education fall within the meaning Technical Institutions. He further asserted that since the field is occupied under the said Entry, the respondent authorities have no legislative or executive authority to take decisions regarding equivalence of qualification.

Accepting such submissions, the court rejected the respondent authorities’ contention that there are “better qualified” candidates available and, therefore, it is up to them to entertain Mr. Verma’s candidature.

“It is not for respondent Nos. 1 & 2 to make the said assumption, in the first place. That exercise is undertaken by the DSSSB. Secondly, the petitioner has actually been found to be meritorious and, therefore, was made the appointment offer in preference to many others who were not made a similar offer. Thirdly, to permit respondent nos. 1 and 2 to take such a stand, would amount to allowing them to pre-judge the merit of the candidate, and after arriving at such an erroneous assessment, declare the candidate to be unqualified,” it explained.

Highlighting NCTE’s authority to declare equivalence of courses for such appointments, the court further observed, “The fact that respondent nos. 1 and 2 themselves sought the response of the NCTE shows that even the said respondents recognise the fact that the ultimate authority in the matter of declaring equivalence of the course undertaken by the petitioner, with the educational qualification prescribed in the eligibility criteria, is the NCTE.”

The impugned order was therefore set aside, with a direction to the respondent authorities to issue the appointment letter to Mr. Verma.

The petitioner was represented by Advocate MK Bhardwaj. SDMC was represented by Advocates Rajeshwar Dagar and Swastik Singh Solanki, while NCTE was represented by Advocates Shivam Singha and Udian Sharma.

‘The State Act of 2016 was brought into force only during the pendency of this petition and the same needs to be implemented in letter and spirit.’

The Himachal Pradesh High Court has directed the state to ensure that no sale of loose cigarette/bidis/prohibited articles shall be allowed to be carried out, more specifically within the radius of 100 metres of educational institutions.

Suo motu writ petition was registered by the High Court after it took note of a letter by a resident Ankush Dobhal, highlighting non-implementation of state policy for the sale of tobacco products and loose cigarettes.

State of Himachal Pradesh in 2106 had enacted the Himachal Pradesh Prohibition of Sale of Loose Cigarettes and Beedies and Regulation of Retail Business of Cigarettes and Other Tobacco Products Act, 2016. But it was brought into force 30.8.2018 during the pendency of this petition. As per the Act, sale of loose cigarettes is completely banned.

There is also a central law viz. Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation and Trade and Commerce, Production, Supply and Distribution) Act, 2003, (COTPA) which banned smoking in public places and also prohibited advertisements of cigarettes and other tobacco product. It also bans sale of cigarettes or any other tobacco products to persons under 18 years of age and also in an area within a radius of 100 yards from educational institutions, providing further that cigarettes or any other tobacco products can only be sold/produced/ supplied/distributed under packages containing specified warnings and not otherwise.

Taking note of these, the bench comprising Justice Sanjay Karol and Justice Ajay Mohan Goel asked the state government to implement the state policy in letter and spirit. Following directives have been issued.

• The authorities, both under the COTPA and the State Act shall ensure that no sale of loose cigarette/bidis/prohibited article, either under the Central Act or the State Act, shall be allowed to be carried out, more specifically within the radius of 100 metres of educational institutions.
• The State shall consider further strengthening the mechanism for proper registration, renewal and the procedure for entry, search and seizure.
• The State shall ensure that Officers for the purposes of compounding of offence committed under Section 3 are appointed forthwith in proper, complete and effective implementation of the provisions of the Act. Not only that Officers under Sections 4,6 and 10 of the COTPA must be notified forthwith.

Read the Judgment Here

SC disposes of a 1973 appeal during pendency of which the concerned law itself got repealed

Last week, the Supreme Court disposed of an appeal filed in the year 1973, challenging a show cause notice issued under the Gold (Control) Act, 1968.

The Delhi High court had dismissed the challenge against show cause notice in 1972. A Special Leave Petition was filed against the high court order in 1973, and the apex court stayed the proceedings on 9^th August 1973.

While this appeal was pending, the Gold (Control) Act, 1968 was repealed by the Parliament in the year 1990, after it ‘realised’ that it was a regressive measure.

Last month, when this appeal came up for hearing before the bench comprising Justice Rohinton Fali Nariman and Justice Navin Sinha, Senior Advocate R Venkataramani, who appeared for the appellant, contended that since the Gold Control Act itself has been repealed without a saving clause, Section 6 of the General Clauses Act would not apply for the reason that the objects and reasons show that the Act was sought to be repealed without any saving clause.

On the other hand, Advocate Rupesh Kumar, counsel for revenue, contended that once there is a repeal simpliciter, without any savings clause, the whole object of such a repeal was so that the general rule under Section 6 would apply.

Section 6 of the General Clauses Act provides that unless a different intention appears, the repeal shall not:

• Revive anything not in force or existing at the time at which the repeal takes effect; or
• Affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
• Affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
• Affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
• Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

Considering these submissions, the bench observed that, the repeal simpliciter, in the present case, does not attract the provisions of Section 6 of the General Clauses Act as a contrary intention is very clearly expressed in the statement of objects and reasons to the 1990 repeal Act. The bench referred to the judgment in New India Assurance Co. Ltd. vs. C. Padma, in which the court had considered a similar issue.

The bench observed: “The statement of objects and reasons makes it clear that over 22 years, the results achieved under the Act have not been encouraging and the desired objectives for which the Act has been introduced have failed. Following the advice of experts, who have examined issues related to the Act, the objects and reasons goes on further to state that this Act has proved to be a regressive measure which has caused considerable dissatisfaction in the minds of the public and hardship and harassment to artisans and small self-employed goldsmiths.”

Disposing of the appeal, the bench said: “This being the case, we are of the view that the show cause notice dated 01.06.1971, which is the subject matter of this appeal, no longer survives.”

The High Court of Kerala today dismissed the bail application of a person accused of indulging in rioting and vandalism during protests against women entry in Sabarimala temple following the judgment of the Supreme Court. While dismissing the bail application, Justice Sunil Thomas observed that there was prima facie material to connect the accused to the crime.

The accused was Govind Madhusoodhanan, a legal practitioner. The allegation was that the on October 17, when the temple was opened for puja, the accused formed and led an unlawful assembly and resorted to rioting and criminal assault, and destructed vehicles of police and KSRTC. On these allegations, FIR was registered against him for offences under Sections 143, 147, 148,188,333,353,283,427 of IPC and Section 3(2)(e) of the Prevention of Destruction of Public Properties Act.

The petitioner denied the allegations and stated that he had returned from Nilakkal at 2PM on that day and was not present at the scene of crime. He contended that he was wrongly implicated on mistaken identity.

The Public Prosecutor submitted that the Government of India had supplied confidential report regarding possibility of violence by miscreants in and around Nilakkal and Pampa and that security arrangements were accordingly beefed up. It was submitted that the accused had led a violent mob and had attacked police officers and media persons. It was stated that around thousand persons shouted at devotees and blocked vehicles. When police tried to dissuade them, the mob responded by pelting stones, fire wood and sticks. From the photos and videos taken by the departmental photographer, several miscreants were identified.

The Court noted that the prosecution had produced photographs showing the involvement of accused in violence. Also, call data records contradicted the version of the accused that he had returned from Nilakkal by 2 PM, as his prescence within Nilakkal mobile tower limits was traced even after 5 PM. Several witnesses had identified the accused and attributed specific overt acts of violence to him. The Court also made specific reference to the gravity of violence.

"It is seen that two police buses, one police car, four police vehicles, 12 KSRTC buses, 3 media vehicles and 3 cameras were damaged. 13 police personals were injured. There was no report of any person among the mob being injured. Total value of the public property damaged was around Rs.16,78,500/- and teh private property which includes camera, private vehicles and media vehicles was quantified at Rs/15,50,5000", observed the judgment.

Observing that there was possibility of repetition of offence by the accused, bail application was dismissed.

"Supporting an ideology of a banned organization of course is different from waging a war or attempting to wage a war or abetting to wage a war", observed the High Court

Holding that supporting the ideology of Islamic State of Iraq and Syria(ISIS) will not amount to waging war against Government of an Asiatic power in alliance with India, the High Court of Kerala set aside the conviction of a woman under Section 125 of the Indian Penal Code. Section 125 punishes waging war against Government of an Asiatic power in alliance with India, or the attempt to do so, with imprisonment for life.

The HC Division Bench of Justices A M Shaffique and P Somarajan however sustained her conviction and sentence under Unlawful Activities Prevention Act for associating with ISIS, which is a banned organization under the Act.

The Court was considering an appeal filed by Yasmeen Mohammend Zahid, a 30 year old woman of Bihar nativity, who was arrested from Delhi Airport while attempting to travel to Afghanistan along with her child to join ISIS. The Passport authorities in Delhi Airport acted upon a look out circular issued by Kerala police regarding attempts of few persons from Kasargod District in Kerala to exit India to join ISIS.

The case had its genesis from a complaint made by one T.P Abdulla on July 10, 2016 that his son Abdul Rashid along with his wife and their child were missing for about one and half months. Forty other persons were also missing from the locality. The preliminary investigation revealed that the missing persons had been swayed by ISIS ideology and left country to join the organization. Yasmeen was arrested in Delhi on August 1, 2016.

Later, the National Investigation Agency(NIA) took over the investigation and found that fifteen persons had left the country. It was also found that from 2015 onwards, all these persons were regularly meeting for classes about Jihad.  According to the NIA, Abdul Rashid was the lynch-pin of the conspiracy. He was made the first accused, and Yasmeen, who was stated to be Rashid's second wife, was made the second accused. Thirteen others were made accused 3 to 15. However, all the accused except Yasmeen had left the country, and the case proceeded against her alone as the second accused.

The NIA Special Court, Ernakulam found that Yasmeen had supported ISIS and had raised funds for it, and had attempted to wage war against an Asiatic power and convicted her under Sections 120B, 125 IPC and Sections 38,39 and 40 of UAPA.

While considering the appeal against the judgment of Special Court, the High  Court concluded from testimonies of witnesses that Yasmeen had attended classes taken by the 1st accused with reference to IS and the Jihad. There was evidence of 1st accused and Yasmeen staying together at different hotels in Patna, indicating close relationship between them. There was also evidence of 1st accused regularly sending her money from Afghanistan. The mobile phone seized from her had videos relating to ISIS, audio speech of militant preacher Anwar Alwaki, and a brief guide to Islamic State and women of Islamic State.

However, the High Court held that there was no evidence to show that Yasmeen had attempted to wage war with an Asiatic power in alliance with India. "Though there is evidence to prove that she had attended classes of Jihad propagating IS ideology by A1, there is absolutely nothing to indicate that she had taken any steps to wage a war or attempted to or abetted waging of such war against any Asiatic Power in alliance with or at peace with Government of India. So conviction of the appellant under Section 125 cannot be sustained without any such material.", the Court said.

"What we could deduce is that she had maintained a relationship with A1 and supported his ideology. Supporting an ideology of a banned organization of course is different from waging a war or attempting to wage a war or abetting to wage a war. There is no evidence to prove that she was involved in any such activity", the Court further held.

However, the Court held that her association with the 1st accused and her attempts to go to Afghanistan to propagate ISIS ideology made her guilty under Section 38(1) of UAPA. Section 38(1) of the UAP Act punished any person who associated himself or professed to be associated with any terrorist organization with intention to further its activities for the offence relating to membership of a terrorist organization. But the Court held that she had not aided or raised funds for ISIS and therefore set aside her conviction under Section 39 and 40 of UAPA. Regarding this, the Court observed "This is not a case where she was raising funds for a terrorist organization. There is no such evidence. The evidence is that she received funds from A1"

She was also found to have committed criminal conspiracy and her conviction under Section 120B IPC was upheld.

To determine the sentence, the Court considered the fact that the appellant was drawn to the ideology under the influence of the 1st accused and that she was not the one who started propagating the ideology. "Her intention was to join him on account of the relationship she maintained with him or may be influenced by the ideology propagated by him", observed the Court.

Taking a lenient view, the Court sentenced her to undergo rigorous imprisonment for 1 year for the offence punishable under Section 120B of the IPC and rigorous imprisonment for 3 years for offence under Section 38 of the Act, modifying the sentence of 7 years awarded by the trial Court. The Court clarified that the sentences will run concurrently.

Read Judgment

Shaastra, IIT Madras, is organising the Law Tech Summit, on the theme ‘Expert Insights: Patents, IP and Startups with Feroz Ali’. The need for patent attorneys is on the rise along with the growing technology. From patenting to copyrights, there are various procedures to safeguard an idea or a product. Hence, this session is being organised to provide insights in patents, intellectual property and startups.

Date: 9^th November 2019

Time: 6:00 to 8:00 PM

Venue: IIT Madras

The session aims to bring together start-ups, upcoming engineers and law students to simplify procedure and resources relating to patent filing of their product.

The session will be conducted by Feroz Ali, the Department of Industry Policy and Promotion, Ministry of Commerce and Industry Chair on Intellectual Property Rights at the IIT Madras. He litigates and counsels in intellectual property law, corporate law and competition law.

Things to be covered:

• Quick introduction to different types of IP
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• Resources and assistance available for startups
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• Case study: Startups with IP
• Q&A session

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The Centre has notified the transfer of seven High Court judges to the High Courts of Hyderabad, Madhya Pradesh, Karnataka, Punjab & Haryana, Orissa, and Jharkhand.

Justice Rajiv Sharma has been transferred from the Uttarakhand High Court to the Punjab & Haryana High Court. He had initially been proposed to be transferred to the Allahabad High Court. However, the Collegium acceded to his request for transfer to either his parent high court of Himachal Pradesh or Punjab and Haryana High Court.

Madras High Court judge, Justice HG Ramesh, has been transferred to the Madhya Pradesh High Court. The Collegium had rejected both his requests for either retention in the Madras High Court or appointment as the Chief Justice of any other High Court.

Rajasthan High Court judge, Justice Nirmaljit Kaur, has been transferred back to her parent High Court of Punjab & Haryana.

Madras High Court judge, Justice Satrughana Pujahari, has been transferred back to his parent High Court of Orissa.

Karnataka High Court judge, Justice Raghavendra S Chauhan has been transferred to High Court of Judicature at Hyderabad for Andhra Pradesh and Telangana.

Orissa High Court judge, Justice Sujit Narayan Prasad has been transferred back to his parent High Court of Jharkhand.

Punjab and Haryana High Court judge, Justice PB Bajanthri has been transferred back to his parent High Court of Karnataka.

The recommendations for these transfers had been made by the Supreme Court collegium last month.

The vacation bench presided by Justice Protik Prakash Banerjee of Calcutta High Court encountered a curious petition filed by a police officer accused of corruption, who was earlier denied anticipatory bail by a division bench of the high court.

On October 11, Sujit Mondal, had filed anticipatory bail application before the high court, citing a Supreme Court order that granted interim relief to his co-accused. But the division bench of the Calcutta High Court rejected his plea, a day before the court closed for vacation. Before the vacation bench, he filed another petition.

Advocate Sanjay Banerjee, who appeared for him, submitted before the bench that his client also wants to move the Supreme Court, but when a petitioner moves the Supreme Court under Article 32 of the Constitution of India, he has to show, as a pre-condition, that he has acted equitably. As he has been denied anticipatory bail, if he moves the Supreme Court, he has to do so as a proclaimed offender who is absconding. If he visits the registry of the Supreme Court, and is allowed to affirm the proposed petition, without being arrested at the same time, it would also be against public policy.

The counsel requested the court that a chance should be given to his client to move the apex court without the reasonable fear that he would be arrested the moment that he appears in public to affirm the writ petition before the Supreme Court and identify himself. He further made these submissions: “Fundamental and other rights guaranteed under Part III of the Constitution of India become illusory unless the means to exercise the said rights are also protected. The right to protection of the means to exercise such fundamental or statutory rights, is also fundamental and/or basic and is required to be declared as existing by necessary implication. Several rights which are required for exercising fundamental or statutory rights, have grown silently and without legislation, as those which are necessary and basic, for exercising the statutory or fundamental rights, and some of these have been declared or interpreted to exist by amplifying the meaning of existing rights. In a country with a vibrant democracy like India, and universal adult suffrage and a comparatively catholic right to be elected, it has become a sad fact of life, criminal cases are registered against people as pressure tactics and often for political or other gain. In some cases, the pressure is indirect - such as where an apparently insignificant person (such as the petitioner) is made the ostensible target, but in the sights is someone much more influential. If their right to legal recourse by filing writ petitions, to secure their fundamental right to personal liberty or life, is threatened by arrest the moment that they reach the highest court in the land, then it makes the right of legal recourse illusory. This liberty to reach the court physically to affirm an affidavit to file the petition, is part of the right to legal recourse, which, though not spelled out in so many words, is a part of "due process" and that "due process" is a part of Article 21 of the Constitution of India has been itself held by interpretation by the highest court in the country though the said words are not enacted in or part of Article 21 of the Constitution of India.”

Impressed by these submissions, the bench observed: “It is true that the application for anticipatory bail was refused by a Division Bench of this Court on October 10, 2018. It is also true that as on that date the order dated October 1, 2018 had been passed by the Hon'ble Supreme Court and was considered by the Division Bench. But on such date the present petitioner had wanted an anticipatory bail on the basis of the said interim order passed in the case of the co-accused from the High Court and had not expressed his desire to move the Hon'ble Supreme Court.”

The bench then stayed all further proceedings of the concerned criminal cases against him for a period of eight weeks.

“In the event that the petitioner approaches the Hon'ble Supreme Court, the question of the petitioner's arrest shall abide by whatsoever decision is taken by the Hon'ble Supreme Court. If no step is taken by the petitioner to approach the Hon'ble Supreme Court within the period aforesaid, naturally, the interim order granted herein shall stand automatically vacated on the expiry of 8 weeks, unless varied or vacated by an order of this court passed earlier in terms of the above. No liberty is given to the petitioner to apply to this court for extension of the interim order on the self-same application,” the court added.

However, sometime after this order was pronounced, the prosecutor mentioned this matter before the bench and sought recall of the order stating that some relevant facts were not noticed in the case.

The judge then added this to the order he earlier dictated: “I granted liberty to him to come back with the learned counsel for the petitioner, since it was not possible for me to recall an order passed in open court after I had passed it, when the petitioner's learned advocate who was present had left, in the absence of the learned advocate for the petitioner. He could not do so, and before I rose at 7:15 pm he mentioned the matter again. Accordingly, let the present matter be listed before me as "To Be Mentioned (Correction/Recall)" on November 15, 2018, at the first sitting of the court and as the first item, regardless of part heard, to be mentioned or any other matter.”

Read the Order Here

“The court cannot direct DNA or any such test without hearing the person affected irrespective of the fact whether he is a minor or major. If such person is a minor, he should be heard through the guardian.”

The Kerala High Court has held that a DNA test cannot be ordered without hearing the person affected, irrespective of the fact whether he is a minor or major.

A man had approached the family court seeking a declaration that the child born to his wife, whom he divorced, is not his daughter. However, taking note of the absence of such pleadings denying paternity of the child, in previous proceedings between the couple, the Family Court held that it amounts to an admission by him that he is the father of the child, and no DNA test can be ordered.

The high court, however, observed that he is entitled to prove by adopting scientific methods that he is not the father of the child. The court, quoting an apex court judgment, observed that when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.

Taking note that child is not a party to the proceedings before the Family Court, the bench observed: “Before seeking a direction to conduct DNA test to prove the paternity of the child, the petitioner has to implead the child as a party to the proceedings before the lower court. The child is also a necessary party to the application filed by the petitioner seeking conducting of DNA test.”

Referring to a recent judgment by the high court, the bench further said: “The child has a right to be heard through its guardian before the court takes a decision whether it should direct to conduct the test. The court cannot direct DNA or any such test without hearing the person affected irrespective of the fact whether he is a minor or major. If such person is a minor, he should be heard through the guardian. The fact that the respondent, being the mother of the child, was heard by the court below on the application filed by the petitioner for conducting DNA test, is not sufficient. The respondent was heard in the matter not in the capacity of the guardian of the minor, but in her individual capacity only.”

Read the Judgment Here

The Bombay High Court in a recent judgment ordered a fresh trial in a matter regarding the acquittal of an accused under Sections 279 (rash driving), 337 (causing hurt by act endangering life or personal safety of others) and Section 304­-A (causing death by negligence) of the Indian Penal Code.

Justice ZA Haq of the Nagpur bench repudiated the judgment acquitting the accused passed by a Magistrate and held that the “Magistrate has failed in their duty of imparting criminal justice”.

The court expressed surprise at the fact that the judgment, including the cause title, was four-and-a-half pages, while the reasons recorded were in just one-and-a-half page.

Case Background

According to the prosecution, complainant Madhukar Kakade’s wife along with one Vimlabai, her daughter Shobha and another girl Bali were going to the fields and when a jeep came in high speed and dashed into Shobha, who suffered serious injuries and was taken to the hospital, where doctor declared her dead. At the time of the accident, accused Majidkhan Pathan was driving the jeep.

After conducting the trial, the Magistrate held that the prosecution has not been able to prove that at the time of the accident, the jeep was driven rashly and negligently and acquitted the accused.

Judgment

Justice Haq observed how the prosecution had failed to discharge their obligation in the trial:

“In my view, the prosecution, as well as the Magistrate, has completely failed to discharge their obligation of seeing that justice is done. Though the prosecution had cited five eyewitnesses, none of the eyewitness is examined. Learned APP has submitted that though bailable warrant was issued against witnesses (including the eyewitnesses) the report of execution of the bailable warrant is not found on record.”

The court further questioned the conduct of the investigating officer, the Additional Public Prosecutor as well as the Magistrate:

“Going through the impugned judgment, it is clear that the proceedings are taken up only with the object of acquitting the accused.  This is a glaring case of dereliction of duty not only on the part of the investigating officer (prosecution), but the learned APP who acted as prosecutor before the Magistrate, as also on the part of the Magistrate.

After examining the above facts, there cannot be any other conclusion except that the prosecution as also the Magistrate has failed in their duty of imparting criminal justice. Magistrate has disposed the matter under the misconception that it is the duty of only the prosecution to see that the victims get justice and the accused is/are punished. Of course, while holding the accused guilty of commission of offence/crime, the Court has to be satisfied that the prosecution has proved the guilt of the accused beyond doubt, but there cannot be a   shortcut to dispose a criminal prosecution in the manner in which it is done in the present case.

The Magistrate is not helpless and is not at the mercy of the prosecutor. The Magistrate is conferred and vested with ample powers to compel the attendance of witnesses and to see that the victim does not walk away from the Court dejected and with a feeling that he is deprived of justice. The well-known maxim “not only must justice be done; it must also be seen to be done” has to be kept in mind.”

Thus, the court ordered the matter to be remanded to the Judicial Magistrate First Class, Amravati, for a fresh trial to be completed within six months. Apart from this, the Commissioner of Police, Amravati, and Director of Prosecution were directed to conduct an enquiry into the investigating officer and the Additional Public Prosecutor who appeared before the said magistrate, respectively.

Finally, the Registrar (Judicial) was directed to forward this judgment as well as the judgment acquitting the accused passed by the Magistrate, to the Registrar-General who can place them before the Chief Justice of Bombay High Court.

Read the Judgment Here

Th election of K M Shaji, the returned candidate of Indian Union Muslim League from Azhikode constituency in 2016 assembly polls, has been declared void by the High Court of Kerala. The High Court has however stayed the operation of the judgment for a period of two weeks.

The Court held that he had indulged in corrupt practises under Section 123(3) and 123(4) of the Representation of Peoples Act by appealing for votes in the name of religion and also by spreading false statements in relation of personal conduct of the opponent candidate with the intent to prejudice his winning prospects. Therefore, election was declared void on the ground under Section 100(d)(ii) of the Act in exercise of powers under Section 98.

The judgment was delivered by Justice P D Rajan  acting on an election petition filed by M V Nikesh Kumar, the defeated candidate belonging to CPI(M). The Court however rejected the prayer of Nikesh Kumar to declare him as the elected candidate. The Court also ordered the payment of Rs.50,000 as costs to Nikesh Kumar.

Re-election has been ordered in Azhikode constitutency. K M Shaji has also incurred disqualification for contesting elections for six years from today.

Nikesh Kumar alleged that various pamphlets were distributed during campaigning which appealed to the voters to refrain from casting votes to a non-Muslim candidate. The pamphlets also urged voters to cast their votes in favour of a devout practising Muslim like K M Shaji.

"Shaji was informed by the Nodal Officers and District Collector on several occasions about communal pamphlets being circulated in his name. Several such pamphlets were seized from the residence of President of Valapattanam Panchayath, who belonged to Congress, a partner of IUML in the UDF alliance. Therefore, he was presumed to have knowledge of the communal pamphlets", T B Hood, lawyer who appeared for Nikesh Kumar, told Live Law.

The Court held that Shaji could not prove that the communal pamphlets were issued without his knowledge and consent.

After the judgment was delivered in the morning, Shaji moved an application under Section 116B of the Representation of Peoples Act seeking its stay until appeal is filed in the Supreme Court. He prayed that the judgment will render the constituency without a representative with immediate effect, which will affect public interest. Considering the application in the afternoon, Justice P D Rajan stayed the operation of the judgment for a period of two weeks on condition of depositing an amount of Rs.50,000 within a week.