Reorganization Of Jammu And Kashmir

Photo by Sora Shimazaki on Pexels.com

On 9th August, 2019, Mr. Ram Nath Kovind, the President of India gave his assent. It is 34th Act of 2019 and is in force since 31st October, 2019.[2] The Preamble of the Act states the aim of the Act as:

An Act to provide for the reorganization of the existing State of Jammu and Kashmir and for matters connected therewith or incidental thereto

For the Bifurcation of the State of J & K into two distinct UTs, a Bill was set in motion by Mr. Amit Shah, Home Minister on 5th August, 2019 which was passed with 125 votes in approval and 61 votes against the Bill and next day it was passed in the People’s House whereby the composition of votes was 370 in favour and 70 in opposing side.

To make the Act constitutionally valid the Central Government revoked Article 370 and 35A.[4] The Act contains 103 sections and 5 schedules.

Vital Provisions of the Act -:

  • Section 1 lays down the title of the Act as The Jammu and Kashmir Reorganisation Act, 2019.
  • Section 3 contains the provision for the formation of the Union territory of Ladakh without any legislative assembly and the territorial area comprises of two districts Leh and Kargil which ceases to be a part of the State of Jammu and Kashmir existed before the Act.
  • Section 4 states the provision for the establishment of the Union territory of J & K which includes the territorial area of the State of J & K existed before the Act except Leh and Kargil district.
  • Section 5 states that the common Lieutenant Governor of both newly recognised UTs will only be the Governor of the State of J & K exists immediately before the Act for a duration decided by the President.
  • Section 10 allocates six seats in People  House whereby five seats were apportioned to the UT of J & K and one to the UT of Ladakh.
  • Section 13 makes Article 239A applicable in the Union Territory of Jammu and Kashmir and Article 239A lays down the provision for the creation of local Legislatures or Council of Ministers or both for certain Union Territory [10] which was initially inserted in the Constitution for the Union Territory of Puducherry.
  • Section 14 (1) states that the appointment of the Administrator of UT of J & K will be taken place as per Article 239 and designated to the post of Lieutenant Governor.
  • Section 14 (3) states that Legislative Assembly of Jammu and Kashmir Union Territory will have 107 seats in total whereby the representation of the members will be ensured through direct election.
  • Section 14(4) States that from 107 seats 24 seats shall remained vacant the representative of which shall be elected by the people of PoK (Pakistan occupied Kashmir).
  • Section 14 (6) states that the reservation shall be ensured for SC and ST in Legislative Assembly of Jammu and Kashmir UT.
  • Section 14 (11) states that Article 324, 327 and 329 shall be applicable in a same manner as they are applicable to a state, Legislative Assembly of a state and members respectively.
  • Section 32 states that the Legislative Assembly of Union Territory of Jammu and Kashmir have power to legislate laws with respect to the matters enumerated in the State List except for entries 1 and 2 of the State List and can also legislate laws for matters mentioned in the Concurrent List which are applicable for other UTs.
  • Section 33 lays down the provision which prevents levying of tax by UT of J & K on the property within its territory except to the property which was considered to be liable for tax immediately before the Constitution came into effect.
  • Section 34 makes Article 286, 287, 288 and 304 operational for J & K UT and clause 2 states that Article 304 will be applicable after necessary modification.
  • Section 35 makes the laws void to the extent of inconsistency with the laws made by the Parliament.
  • Section 47 states that Jammu and Kashmir UT may adopt any language/s which are in use in the Union or Hindi as the official language or languages to be used for all or any of the official purposes of the Union[21] and Clause 2 states that the businesses shall be transacted in the official language or Hindi or English.
  • Section 48 states that all Bills, Acts, Orders, Rules and Regulations, etc, shall be in English language until Parliament otherwise provides.
  • Section 53 states that there shall be a Council of Ministers consisting of not more than ten percent of the total number of members in the Legislative Assembly.
  • Section 57 abolishes Legislative Council of State of Jammu and Kashmir existed immediately before the Act and ceases all the members of such Council. It also lapsed all the bills pending before the Council on its abolition.
  • Section 58 States that the administration of the Union Territory of Ladakh will be administered through Lieutenant Governor, will be nominated by the acting President u/A. 239 and the President may make regulations for the peace, progress and good government of the Union territory of Ladakh u/A. 240.
  • Section 60 lays down the provisions for delimitation of constituencies of J & K UT and also increases the seats of the Assembly from 107 to 114.
  • Section 75 states that the UT of Ladakh and J & K UT will have a single High Court.
  • Section 95 states that all the Central laws shall apply in Union Territory of Jammu and Kashmir and Union Territory of Ladakh in the manner as mentioned in Table 1 of Schedule 5 of the Act whereby a list is given listing 106 Central laws which shall be applicable in Union Territory of Jammu and Kashmir and Union Territory of Ladakh and Clause 2 states that all other laws in Fifth Schedule, applicable to the State of Jammu and Kashmir immediately before the Act came into force, shall apply in the manner as provided therein, to the Union territory of Jammu and Kashmir and Union territory of Ladakh.[29] There are three more tables in Fifth Schedule whereby Table 2 states 7 State laws which are applicable in both the UTs with amendments, Table 3 lays down 153 State Ordinances/Acts and 11 Governor’s Acts which shall be repealed and lastly, Table 4 enumerates 106 State laws which shall remain in force.
  • Section 102 states that the Act has the overriding effect over any other law.

Conclusion

The Act bifurcates J & K State into two different UTs as mentioned u/S. 3 and 4 of the Act. After the Act came into effect there is a common Lieutenant Governor of both the UTs, there are six seats allocated for both the UTs in the ratio of 5:1, a Legislative Assembly with the strength of 114 members has been established in the UT of J & K out of which 24 seats has been suspended for PoK region and UT of Ladakh has no Legislative Assembly. The Act has abolished the Legislative Council of the J & K state and ceases entire bills that were pending before the Council.

The Act has an overriding effect over any other law and there has been four tables given in Fifth Schedule which consists of the list of Central and the State laws which includes list of Laws applicable in both the UTs and list of laws which has been repealed and become ineffective.

Author: Aman Jain

Commercial Courts Act, 2015

Reading time : 10 minutes

Introduction:

The Commercial Courts Act was enacted in the year 2015 (“Act”) with the objective of achieving speedy adjudication of Commercial Disputes. Moreover, the Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018 (“Rules”) were also framed in line with the aforesaid act for the purpose of resolving the matters relating to commercial disputes in an efficacious and expeditious manner. The Act calls for setting up of commercial courts at the district level and a different division in the High Court whose jurisdiction extends to all commercial matters of specified value (Rs. 3,00,000). The creation of commercial courts is done to streamline the dispute resolution process with inclusion of alternative dispute resolution means like arbitration and pre-institution mediation and settlement. The Act is intended to be developed in such a way that it can became a complete Act in itself i.e., overriding effect over other statutes so as to reduce the duration of the suit. Generally, if a civil suit is instituted it may go on for years and in some cases decades but the non-obstinate clause of this Act stops that from happening as it allows for very little in the way of appeals against the orders passed except as mentioned in the Act itself.

To further understand the nuances of the Act let us go through the sections to understand the intention of the statute. Before we begin there are a few terms from which one must be acquainted, for the applicability of the Act there must be an existence of a “Commercial Dispute” under Section 2(1)(c)[1] of the Act of a specified value, which are valued Rupees 3 Lakhs or more, shall not be instituted unless the plaintiff mandatorily exhausts the remedy of Pre-Institution Mediation, to be conducted by the Legal Services Institutions. Accordingly, the Legal Services Institutions are conducting Pre-Institution Mediation in respect of Commercial Disputes across the country. Another important topic to understand the Act is the concept of specified value mentioned under Section 12 of the Act which in essence decides the applicability of the statute as to initiate action under the Act one must prove that a commercial dispute of a specified value has taken place.

Specified Value:

Section 12 of the Act defines the specified value in different scenarios:

  • In case of recovery of money, the amount to be recovered in the suit or application inclusive of interest, if any, up to the date of filing.
  • In case of movable property, the market value of movable property on the date of filing of appeal or suit.
  • In case of immovable property, the market value of the immovable property
  • In case of intangible property or right, market value estimated of the said property or right by the plaintiff
  • In case of arbitration, the aggregate value of claim and counter claim shall be considered for admissibility of the arbitration.

The aforementioned are some matters in which the given metrics are used to determine the specified value, it is a very integral part of the Act as the specified value determines the appropriate forum in which the matter is to be heard and if the matter is eligible to be considered under the Act at all and the applicability of section 12A of the Act related to pre-instituted mediation or settlement.

Constitution and jurisdiction of courts under the Act:

Chapter II of the Act deals with the constitution, jurisdiction and the powers conferred upon the commercial courts in matters relating to appeals and disputes involving arbitration clauses.

Constitution:

Sections 3 till 5 provide for provisions relating to constitution of commercial courts at the district judge level and at the high court level have original jurisdiction and an appellate court to hear appeals coming from the lower courts. The Act is very clear in stating that the state government with the guidance of the High Court may constitute as many commercial courts at the District judge level and even lower as it may deem fit and appoint an appropriate number of judges and staff for appropriate functioning of the said courts. The High court may also on the directions of the chief justice of the High Court create and appoint judges for commercial division of the High Court and its benches and a Commercial Appellate court for the purpose of hearing appeals against orders passed under this Act.

 Jurisdiction:

Commercial Court: The jurisdiction of the commercial court extends to any commercial dispute of the specified value which occurs inside its territorial jurisdiction.

Commercial Division of High Court: The jurisdiction extends to all disputes of specified value having either pecuniary or territorial jurisdiction of a court not inferior to a High Court. If a matter has the pecuniary jurisdiction of filed in the High court in exercise of its ordinary civil jurisdiction is eligible to be heard by only the High Court.

Arbitration matters: This section comes into effect when the subject matter of arbitration is a commercial dispute having a specified value. The provisions of the Arbitration and Conciliation Act work in tandem with the Act and not against them, the section states that if any dispute related to arbitration is an international arbitration or it is not an international arbitration but, an appeal is filed in the High Court for the said matter the High Court’s commercial division will have the authority to proceed with such case. However, if the appeal is filed with any district court (not being a high court) in case of a local arbitration such appeal shall be heard by the commercial court having jurisdiction over such matter.

Bar to Jurisdiction: The jurisdiction of this Act shall not apply in cases in which any other statute bars civil action in the matter either expressly or impliedly.

Pre-Institution Mediation and Settlement:

A very important aspect of the Act is the said concept enshrined under Section 12 A which in short states that the parties to dispute must first go for mediation before filing an application if the specified value of the dispute is Rs. 3,00,000. This provision is a very important one as it shows the government’s as well as the judiciary’s commitment towards Alternate Dispute Resolution as a means for quick and efficient dispute resolution as always more preferable then going the adjudication route.

Section 12A of the aforesaid Act states as follows:

12A. Pre-Institution Mediation and Settlement—

(1) A suit, which does not contemplate any urgent interim relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation in accordance with such manner and procedure as may be prescribed by rules made by the Central Government.

(2) The Central Government may, by notification, authorise the Authorities constituted under the Legal Services Authorities Act, 1987 (39 of 1987), for the purposes of pre-institution mediation.

(3) Notwithstanding anything contained in the Legal Services Authorities Act, 1987 (39 of 1987), the Authority authorised by the Central Government under sub-section (2) shall complete the process of mediation within a period of three months from the date of application made by the plaintiff under sub-section (1):

Provided that the period of mediation may be extended for a further period of two months with the consent of the parties:

Provided further that, the period during which the parties remained occupied with the pre-institution mediation, such period shall not be computed for the purpose of limitation under the Limitation Act, 1963 (36 of 1963).

(4) If the parties to the commercial dispute arrive at a settlement, the same shall be reduced into writing and shall be signed by the parties to the dispute and the mediator.

(5) The settlement arrived at under this section shall have the same status and effect as if it is an arbitral award on agreed terms under sub-section (4) of section 30 of the Arbitration and Conciliation Act, 1996 (26 of 1996).

Sub-section (1) of Section 12A, the mandatory reference to mediation can be bypassed if, along with the plaint, an application for ‘urgent interim relief’ is preferred, in which eventuality, the reference to mediation can be given a go-by and the suit may be directly instituted. Therefore, only when the interim relief sought for, has an urgency fastened to it, can the obligatory reference to mediation be dodged. And therefore, this urgency for interim relief must be pleaded, exhibited, and justified to the court in the first instance when the plaint is taken up.[2]

Apart from this the Central Government on 03-07-2018 has, in exercise of the powers conferred the Commercial Courts Act, 2015, notified the Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018.

Key Highlights of the Rules are as follows: —

A. Initiation of mediation process — Rule 3

(1) A party to a commercial dispute needs to make an application to the Authority as per Form-1 in Schedule-I, either online/by post/by hand, for initiating mediation process along with Rs 1000 as fees payable to the Authority by demand draft/ online;

(2) The Authority shall, having regard to territorial and pecuniary jurisdiction and nature of commercial dispute, issue notice, as per Form-2 in Schedule-I through registered/speed post and electronic means, i.e., e-mail and like to the opposite party for appearing and giving consent to participate in mediation process on a date not beyond ten days from issue of notice.

(3) If no response is received from opposite party either by post/e-mail, the Authority shall issue final notice as specified above.

(4) Where notice under sub-rule (3) is unacknowledged or opposite party refuses to participate in mediation process, the Authority shall treat the process to be a non-starter and make report as per Form 3 in Schedule-I and endorse it to both the parties.

(5) Where opposite party, after receiving the notice seeks further time for appearance, the Authority may, fix an alternate date not later than 10 days from date of receipt of such request.

(6) Where opposite party fails to appear on fixed date fixed, the Authority shall treat the mediation process to be a non-starter and make report as per Form 3 in Schedule-I and endorse the same to both the parties.

(7) Where both parties appear and give consent to participate in the mediation process, the Authority shall assign the commercial dispute to a Mediator and fix a date for appearance before the said Mediator.

(8) The Authority shall ensure that the mediation process is completed within 3 months from receipt of application for pre-institution mediation unless the period is extended for 2 months with consent of both the parties.

B. Venue for conducting mediation — Rule 4

The venue for conducting of the mediation shall be premises of the Authority.

C. Role of Mediator — Rule 5

The Mediator shall, on receipt of assignment, under sub-rule (7) of rule 3 facilitate the voluntary resolution of commercial dispute and assist the parties in reaching a settlement.

D. Representation of parties — Rule 6

A party to a commercial dispute must appear before the Authority/Mediator, either personally or through duly authorised representative/Counsel.

E. Procedure of mediation — Rule 7

(1) The mediation shall be conducted as per the following procedure-

(i) At the commencement of mediation, the Mediator shall explain the mediation process to the parties.

(ii) The date and time of each mediation sitting should be fixed by Mediator in consultation with the parties.

(iii) The Mediator, during course of mediation, may hold meetings with parties jointly/separately.

(iv) The applicant/opposite party may share settlement proposals with the Mediator in separate sittings with specific instruction as to what part can be shared with the other party.

(v) Parties to the mediation can exchange settlement proposals with each other during mediation sitting either orally/in writing.

(vi) During the mediation process, Mediator must maintain confidentiality of discussions made in separate sittings with each party and only the facts which a party permits can be shared with other party.

(vii) Once both parties reach to a mutually agreed settlement, same shall be reduced in writing by Mediator and signed by the parties and Mediator as per Form-4 in Schedule-I.

(viii) Mediator shall provide the settlement agreement, in original, to all the parties and forward a signed copy to the Authority; and

(ix) Where no settlement is arrived between the parties within time specified in sub-section (3) of Section 12A of the Act or where Mediator is of the opinion that the settlement is not possible, the Mediator needs to submit a report to the Authority, with recorded reasons in writing, as per Form-5 in Schedule-I.

(2) The Authority/Mediator, shall not retain the hard/soft copies of documents exchanged between parties or submitted to Mediator or any notes prepared by the Mediator beyond 6 months other than application for mediation, notice issued, settlement agreement and failure report.

F. Mediation Fee — Rule 11

Before commencement of the mediation, the parties to commercial dispute shall pay to the Authority a one-time mediation fee, to be shared equally, as per the quantum of claim as specified in Schedule-II.

Schedule-II

Mediation Fee

[Rule 11]

S. NoQuantum of ClaimMediation Fee Payable to Authority
(in Indian rupees).
1.From Rs. 3,00,000 to Rs.10,00,000.Rs. 15,000/-
2.From Rs. 10,00,000. to Rs. 50,00,000.Rs. 30,000/-
3.From Rs. 50,00,000. to Rs. 1,00,00,000.Rs. 40,000/-
4.From Rs.1,00,00,000. to Rs.3,00,00,000.Rs. 50,000/-
5.Above Rs. 3,00,00,000.Rs. 75000/-

Appeals against orders:

Any party aggrieved with the orders of the commercial court or the commercial division of the High Court may file an appeal against such an order within 60 days of the order or judgment with the commercial Appellate Division of the High Court.

Furthering, the point of speedy trials is section 14 of the Act which states that the commercial appellate court and the commercial court division of the High Court shall be disposed off within a period of six months from filing an appeal.

Other important sections:

Section 17: Collection and disclosure of data by Commercial Courts, Commercial Appellate Courts, Commercial Divisions and Commercial Appellate Divisions:

The section makes it mandatory to disclose the information regarding the quantum of cases either disposed or ongoing with appropriate statistics to be displayed on the website of the respective High Courts to track in real time the effectiveness of the Act in adjudication of commercial disputes.

Section 21: The Act to have an overriding effect:

This section is in a sense the most important one of the Act as it is a non-obstinate clause which overrides any other provisions of laws which might be in direct conflict with the provisions of this Act otherwise the purpose of the statute can be easily undermined by dragging in other statutes and codes to elongate the adjudicatory process and delaying the justice deserved by the aggrieved party.

Conclusion:

In conclusion, the Act brings about a positive change in the field of commercial dispute resolution by adding another special court to the line up of already existing judicial structure and brings about an efficient change in adjudication of commercial disputes by amalgamating ADR techniques like Arbitration and mediation in the mix, which was proven post the introduction of the Act as India’s ease of doing business rating jumped several spots after the introduction of the said Act the act can be tangibly be seen to make an impact of the already existing process by exponentially increasing the disposal of cases and reducing the time taken in the adjudication process and providing a simpler and more clear pathway to dispute resolution. However, the main test of the Act is in the post pandemic business era as the commercial disputes may rise as most of the businesses are still struggling to survive, it is yet to be seen how effectively this Act can be utilised to improve such a situation with such a high case load almost flooding the system.


[1] (c) “commercial dispute” means a dispute arising out of–– (i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents; (ii) export or import of merchandise or services; (iii) issues relating to admiralty and maritime law; (iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same; (v) carriage of goods; (vi) construction and infrastructure contracts, including tenders; (vii) agreements relating to immovable property used exclusively in trade or commerce; (viii) franchising agreements; (ix) distribution and licensing agreements; (x) management and consultancy agreements; (xi) joint venture agreements; (xii) shareholders agreements; (xiii) subscription and investment agreements pertaining to the services industry including outsourcing services and financial services; (xiv) mercantile agency and mercantile usage; (xv) partnership agreements; (xvi) technology development agreements; (xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits; (xviii) agreements for sale of goods or provision of services; (xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum; (xx) insurance and re-insurance; (xxi) contracts of agency relating to any of the above; and (xxii) such other commercial disputes as may be notified by the Central Government. Explanation.––A commercial dispute shall not cease to be a commercial dispute merely because— (a) it also involves action for recovery of immovable property or for realisation of monies out of immovable property given as security or involves any other relief pertaining to immovable property; (b) one of the contracting parties is the State or any of its agencies or instrumentalities, or a private body carrying out public functions;

[2] https://www.barandbench.com/news/mediation-section-12a-commercial-courts-act as last visited on 14th March 2021

Author: ANANT SHARMA

Editor: Kanishka VaishSenior Editor, LexLife India.

ABUSE OF JOURNALISM: ARE THEY CONTRA CONSTITUTIONAL

Reading time : 12 minutes

“The whole notion of journalism being an institution whose fundamental purpose is to educate and inform and even, one might say, Elevate, has altered under commercial pressure, perhaps, into a different kind of purpose, which is to divert and distract and entertain”- Tom Stoppard

INTRODUCTION

The significance of media in a democratic country like India is well recognized.  Our system has 3 strong pillars- the legislative, the executive and the judiciary. Article 19(1) (a)[1] of the Indian Constitution which talks about freedom of speech and expression includes within its ambit, freedom of press and has given rise to the fourth pillar, media.  

Romesh Thappar v. State of Madras[2] was one of the earliest cases to be decided by the Supreme Court declaring freedom of press as a part of freedom of speech and expression. Patanjali Sastri, J. rightly observed that, “Freedom of Speech and of Press lay at the foundation of all democratic organizations, for without free political discussion, no public education, so essential for the proper functioning of the process of Government, is possible.”

The Hon’ble Supreme Court observed in Union of India v/s Association for Democratic Reforms[3], “One-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions”.

In Indian Express Newspapers v/s Union of India[4], it was held that, the courts have duty to uphold the freedom of press and invalidate all laws and administrative actions that abridge that freedom. Freedom of press has three essential elements. They are:-

1. Freedom of access to all sources of information,

2. Freedom of publication, and

3. Freedom of circulation.

According to the constitutional advisor, Dr. B.N. Rau, it was hardly necessary to provide for Freedom of the press specifically, because freedom of expression would include freedom of the press[5].  

The views of Dr Ambedkar and Dr B.N. Rau have been vindicated by the Supreme Court. In a series of decisions from 1950 onwards the Apex court has ruled that the freedom of press is implicit in the guarantee of freedom of speech and expression. Consequently freedom of press is one of the fundamental rights guaranteed by the Constitution of India.[6]   

Freedom of speech is not only a national but an international aspect of human rights. The United Nations’ 1948 Universal Declaration of Human Rights states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, and to seek, receive, and impart information and ideas through any media regardless of frontiers”[7].

MISINFORMATION AS A TOOL TO SUPPRESS FREE SPEECH

The problem of ‘fake news’ and ‘misinformation’ appears to be a substantial problem in India. However, unlike the other countries, where the focus is mostly on foreign based misinformation campaigns, India has more of a domestic misinformation problem involving major political parties and associated “cyber-army” groups. There is no specific provision in Indian law that specifically deals with fake news. However, there are several offenses in India’s Penal Code that criminalize certain forms of speech that may be relevant to fake news and may apply to online or social media content, including the crimes of sedition and promoting enmity between different groups[8]. There is deficient regulation of misinformation under Indian law. 

Due to the various types of fake news, their motivations, and the ways they are shared, the regulatory challenge is daunting. To combat fake news, the first imperative is to identify the different forms: ‘misinformation’ is the inadvertent sharing of false content, while ‘disinformation’ is deliberate sharing with intent to deceive.[9] The major problem that has evolved through misinformation is it’s affected on general public. Therefore there is an urgent need to combat the fake news and misinformation and check the consistency with international human rights standards.

INFODEMICS IN INDIA

The Supreme Court of India in Alakh Alok Srivastava v. Union of India[10] acknowledge the problem of infodemics in India and passed an order asking the State governments to comply with the directions issued by the Centre to curb the menace of fake news. The apex court further emphasized on the need to have a daily bulletin issued by the Government of India through all media avenues as a source of real time verified information regarding Covid-19 in a bid to counter the panic and apprehension caused by the uncontrolled flow of fake news and surrounding misinformation.[11]

INDIAN PENAL CODE (IPC)

Section 505(1)(b) of the IPC deals with the spreading of false and mischievous content that result in fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or public tranquillity. The offender under this section can be punished with imprisonment of a maximum of 6 years and a fine. Section 505(1) (b) coupled with Section 54 of the DMA have been envisioned to contain the spread of fake news to a large extent.[12]

GOVERNMENT ACTION

Press Information Bureau of India Noticing the increasing instances of fake news in various mediums including print and electronic media,”[91] the Press Information Bureau of India amended the Guidelines for Accreditation of Journalists to provide for the suspension of a journalist’s accreditation for creating or propagating fake news.  However, the amendment was reportedly withdrawn soon after by the government because it “angered journalists and opposition politicians, who called it an attempt to gag the media in the run-up to national elections expected next year.”[13]

It is essential that fake news need to be curbed. However, it should not be at the expense of free speech. The way forward in cutting down free speech is temporary measures, which in the short run take away certain freedoms, but in the long run does not turn out to be a political weapon for any ruling government. Temporary measures will sanction the government to make changes to the existing system in order to protect us. In our vulnerable moment we should let the government protect us, but it should not result in the government exploiting our vulnerability. The government needs to work with the public and the intermediaries to control the spread of misinformation. It is vital that we do so, otherwise fake news might prove to be the pandemic’s equal.  

EXPLOITATION OF JOURNALISM

A free press is always critical to public and political involvement. Independent media brings the public information on the world around them and enables debate. However, in many countries’ journalists also face violent behaviour and legal harassment intended to silence them: to cover up protests, elections and reporting or voicing opinions on matters of public and political debate, journalists face increasing hostility around the world

As every coin has two sides similarly journalism has its both positive as well as negative consequences. On one side, it gives a space to express yourself but on the other side, it also creates space for people to respond violently to your thoughts.

Regardless, the Courts may attempt to rescue the press from unreasonable curtailments, there are multiple incidents of violence against journalists impede the freedom of the press. A study titled “Getting away with murder” reported that between 2014-19 there have been 198 serious attacks on journalists across India.[14]

In February 2020, a journalist reporting the violence in North East Delhi suffered severe bullet injuries while on duty. Another misfortunate incident was an attack on a female journalist with sticks and bricks while she was covering the riots in Delhi. There have been numerous instances of journalists being attacked by mobs while reporting religiously charged incidents, and being forced to prove their faith[15]

Protection of the media provides independent and neutral reporting, which guarantees transparency in a democracy. As a society, we must work towards creating an environment of shared respect for differing views. The co-existence of a pluralistic community can ensure freedom of the press to report without fear or favour.

MENACE OF MEDIA TRIAL FOR NATIONALISM

The concept of nationalism Nation and nationalism Weaknesses of nationalism Rise of religious nationalism towards authoritarianism. Long back, Rabindranath Tagore cautioned us that “nationalism is a great menace”. The time has come to ask the question whether we are living in a time when nationalism has actually become a great menace.[16] The freedom of media or freedom of press is implicit in the right to freedom of speech and expression under Art. 19 (1) (a) of the Indian constitution but the right is not absolute, it is subjected to reasonable restrictions enshrined under article 19 (2) of the Indian Constitution. Venkataramiah, J. of the Supreme Court of India in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India[17] has stated that in today’s free world freedom of press is the heart of social and political intercourse.

In Printers (Mysore) Ltd. v. CTO[18] the Supreme Court has reiterated that though freedom of the press is not expressly guaranteed as a fundamental right, it is implicit in the freedom of speech and expression. Freedom of the press has always been a cherished right in all democratic countries and the press has rightly been described as the fourth chamber of democracy. The Freedom of the press extends to engaging in uninhabited debate about the involvement of public figures in public issues and events. But, as regards their private life, a proper balancing of freedom of the press as well as the right of privacy and maintained defamation has to be performed in terms of the democratic way of life laid down in the Constitution.[19] Thus, it can be said that Freedom of media or Freedom of press flows from Freedom of speech and expression but in recent years media trial has created menace in the society in the name of Nationalism. Lord Denning in his book “Road to Justice” observed that press is the watchdog to see that every trial is conducted fairly, openly and above board, but the watchdog may sometimes break loose and has to be punished for misbehavior.[20] Day by day journalism has losing its essence in complete sense, Indian media behind the veil of nationalism trying to misguide the people of the Country.

Recently, Chief justice of India made a statement while entertaining the petition filed by the Jamiat-Ulema-I-Hind asking for action against the media for “spreading hatred” over the Tablighi meet at Markaz Nizamuddin that “Freedom of speech is one of the most abused freedoms in recent times,”[21] The Supreme Court has barred television channel Sudarshan News from telecasting a controversial programme on the entry of Muslims into the country’s civil services on the ground that the programme is “insidious’’ and is aimed at vilifying the Muslim community. Four episodes of the programme, called “Bindas Bol”, have been aired and the ban will apply to the remaining six episodes.[22]

Another recent action taken by the Bombay High Court with the Bench comprising of Justice S. S. Shinde & Justice Manish Pitale,[23] directed the media organizations to scrupulously follow the guidelines which the Court had laid down in the case of Nilesh Navlakha v. Union of India[24] [Sushant Singh Rajput case] and not to give any unnecessary publicity to the illicit relationship of the Woman. The Court in this case had laid down various guidelines for reporting on “sensitive criminal matters, including death by suicide, and had held that the media should avoid putting photographs of victims, depicting the deceased as a weak character, or try to reconstruct the incident while the investigation is underway”.

The division bench of Chief Justice Dipankar Dutta and Justice GS Kulkarni had directed the print and electronic media to exercise restraint and refrain from publishing any news item, debate, discussion on interview while reporting on certain cases or at a particular stage of investigation.[25]

CONCLUSION

The Indian Constitution does not provide freedom for media independently. But there is an indirect provision for media freedom. It gets derived from Article 19(1) (a). This Article guarantees freedom of speech and expression which includes freedom of press.[26] Our Constitution also sets down some restrictions in the form of Article 19(2). It is highly inappropriate that there lies a deep-rooted aversion to conflicting views in our society. The beauty of a democracy is rooted in the co-existence of contrasting opinions. As a society, we must work towards constructing an environment of mutual respect for differing views. The co-existence of a pluralistic community can safeguard freedom of the press to report without fear or favour. Moreover, the freedom to express to one’s ideals and to hold an opinion is an important precondition for political process in a democratic society and it national level it is important for good government and to prosper in socio-economic process and as such without such broad guarantee of freedom of speech and expression there cannot be a free society and no democratic state.[27] However, Freedom of expression is a fundamental human right that must be upheld in democratic societies. Yet there is a worrying global trend of governments unjustifiably limiting freedom of speech, targeting journalists, protesters and other persons considered to be dissenting from government views. It is essential that civil societies as well as the individuals across the globe are vigilant in defending freedom of expression.

Thus, to conclude, Media protection takes a very pivotal position because of the special role such as to work as public watchdog as well as the assurance to disseminate the information to the public in general and it is a fact that Media is the main cornerstone for open and participatory democracy. In Democracy, the Government cannot function unless the people are well informed and free to participate in public issues by having the widest choice of alternative solutions of the problems that arise.  The people can, therefore, be given the full scope for thought and discussion on the public matter, if only the newspapers and electronic media are freely allowed to represent different points of views. Parameters of freedom of the press should be clearly earmarked. Information must be available at an affordable cost within specified, definite and reasonable time-limits. But Free press should not violate the right to privacy of an individual. Free press must be law enforcing and preventive of crime. Rule of law must be followed by the free press. Influence through free press upon the judiciary should not be exercised. Press is the watchdog to see that every trial is conducted fairly, openly and above board, but the watchdog may sometimes break loose and has to be punished for misbehaviour. It shows that there are certain restrictions on the freedom of the press.

REFERENCES


[1] INDIA CONST. art 19(1)(a)

[2] AIR 1950 SC124

[3] (2002) 5 SCC 294

[4] 1985, 1 SCC 641

[5] B. Shiv Rao, The Framing of India’s Constitution: A Study, pp 219-206

[6] Brij Bhushan v State of Delhi; AIR 1950 SC129

[7] Universal Declaration of Human Rights, https://www.un.org/en/about-us/universal-declaration-of-human-rights

[8] Government Responses to Disinformation on Social Media Platforms: India,  https://www.loc.gov/law/help/social-media-disinformation/india.php

[9] Countering Disinformation and Hate Speech Online: Regulation and User Behavioural Change, https://www.orfonline.org/research/countering-disinformation-and-hate-speech-online/

[10] 2020 SCC Online SC 345

[11] Abraham Jacob and Alex Ashok Philip, The Curbing of Fake News: A pandemic Delimma, https://www.jurist.org/commentary/2020/05/abraham-alex-fake-news-infodemic/

[12] Supra 11

[13] Supra, 7

[14] DALVI VIDHI THAKERANDPRASTUT, Shooting the messenger: Restraint on Free Press in India, https://www.theleaflet.in/shooting-the-messenger-restraint-on-free-press-in-india/#

[15] ibid

[16] Nationalism, then and now, April 15, 2016, FRONTLINE, https://frontline.thehindu.com/the-nation/nationalism-then-and-now/article8409074.ece

[17] 1986 AIR 515, 1985 SCR (2) 287

[18] 1994 SCR (1) 682, 1994 SCC (2) 434

[19] R. Rajagopal v. State of T.N

[20] Lord Denning, Road To Justice, http://www.allahabadhighcourt.in/postcentenary/RoadOfJustice.html

[21] THE FEDERAL, Supreme Court on media reporting: ‘Freedom of speech most abused liberty’, 8th October 2020, https://thefederal.com/news/sc-freedom-of-speech/

[22] DECCAN HERALD, Sudarshan News case: Dangerous, shameful abuse of media freedom, 17th September 2020, https://www.deccanherald.com/opinion/first-edit/sudarshan-news-case-dangerous-shameful-abuse-of-media-freedom-888607.html

[23] Lahu Chandu Chavan v.The State of Maharashtra & Ors. [Writ Petition No. 1119 Of 2021]

[24] Nilesh Navlakha v. Union of India reported in Aironline 2021 Bom 14 [Sushant Singh Rajput case]

[25] Nilesh Navalakha and others v Union of India and others

[26] Romesh Thappar v. State of Madras, AIR 1950 SC 124

[27] Dr Archana & Dr Rahul Tripathi, Media Laws in India: Origin, Analysis and Relevance in Present Scenario Volume 7 Issue 02, pp 13-15, February. 2018

Author: AKRATI SRIVASTAVA

Editor: Kanishka VaishSenior Editor, LexLife India.

Military Dictatorship: Better form of government?

Reading time : 8 minutes

Introduction:

Many of the great philosophers like Aristotle, Plato, Cicero and many more have stressed the importance of government and various form of government like democracy, aristocracy, etc. One of the important models of government is the 5 regimes which classifies the forms of government into different levels and this is formulated by Aristotle. The world has seen glorious phases of administration in different time periods. History helped us witness the rule of kings and queens in the form of monarchy, rule of aristocrats in the form of oligarchy and aristocracy, rule of elected representatives by the people in form of democracy, the rule of stone-hearted dictators like Hitler who ruled Germany, Mussolini who ruled Italy, Kim Jong-Un who is still ruling North Korea, etc in the form of dictatorship. There were gradual changes in the way of administration with the change in kings and also, there were change in government and policies. We have seen the golden age of Guptas, heard of great Mauryas and many other prominent royal lineages that ruled Indian states. As far as the world is concerned, we have seen ambitious rulers like Alexander the great, Napoleon, Julius Caesar and many others. As time advanced, the tradition of kings gradually started decreasing and the concept of democracy and dictatorship emerged prominently. In present, only 3 forms are government are prominent and they are Democracy, Communist rule and Military Dictatorship. Military dictatorship is the type of government that has hit the news recently and also very often and are established through an act known as ‘Military coup’. According to a statistical data, from the year 1950-2010, there has been 457 attempts of military coup where 227 were successful and rest in vain. The recent example of this is the occurrence of events in Myanmar. This article tries to discuss the reason for dethroning a pre-existent form of government and take over the administration by force and whether this form of government is better than the most accepted form of democracy.        

History of Military Dictatorship:

On 1st February of 2021, the military coup in Myanmar (popularly known as Burma) succeeded in bringing down the people chosen democratic government and successfully established Military government or dictatorship. But this is not the first time, where the army has rebelled against its superior power. There have been many instances of this act in various parts of world. The act of coup can be defined as “a brilliant, sudden, and usually highly successful stroke or act”[1]. The history of coup dates back to later half of 20th century. For example, in the year 1966 it happened in Nigeria, where a military group killed 15 elected representatives including the then Prime minister and seized the power and thus establishing the first military government post-second world war. Aftermath, the military leader took the administration in his hands and suspended the pre-existing constitution thus leading to the first successful military coup. After this, there have been numerous coups and attempted coups in almost majority of countries. Our neighbouring countries of Pakistan has seen series of coups and was under the military rule for several years.

There is a famous quote where the military coup has been described as “The curse that no Pakistan ruler has ever escaped”.[2]  The atrocities of the military began in the year 1953, where the then Governor-general Ghulam Muhamad, along with Ayub Khan-who provided troops for this purpose, seized the power and dethroned the then Prime Minister even after securing full majority. For the first time, a foundation for forthcoming military coups was laid down in the case of Federation of Pakistan v. Maulvi Tamizuddin Khan.[3] The courts in this case, failed miserably to carry out the primary responsibility of delivering justice to the people. The meaning or definition of ‘Doctrine of necessity’, developed by the famous law writer and cleric, Henry de Bracton was changed as the court declared the military dictatorship as an action arising out of necessity. But the fact, it was the necessity as per the law writer, but an event that occurred at regular intervals in greed of power. This coup in 1953 can be called as hint for events that was waiting in the near future.

After the 1953 coup, Pakistan witnessed yet another in the year 1958. As people say, “history repeats”, the greed of power paved way for this coup. During this period, dissolution of the constituent assembly by the then president of Pakistan and appointing Ayub Khan as commander-in-chief of Pakistan. But there was a turn of events, where the commander himself banished the then president and took over the complete rule of the country. Later In the year 1977, one more coup known by the code language of ‘Operation Fair Play’, was performed. The then commander ordered arrest of the newly elected constituent assembly including the prime minister. This took place on midnight of 4th July,1977. The coup was successful and the constitution was suspended. Martial laws were imposed. If these coups were aggression from the military, the coup in the year 1999, was nothing but the government’s invitation to the military. Then then prime minister tried to dismiss the commander-in-chief and also, stooped his plane from landing on the Pakistani soil, when he was returning from Sri Lanka. By this act, the government displayed its respect towards the army and triggered a spark of disloyalty by the army. The senior officers who were loyal to the commander in chief, ordered their troops to arrest the prime minister and establish the rule of their master. This led to establishment of military government for the fourth time. 

Other than Pakistan, other neighbouring countries of India- Afghanistan, Bangladesh, China (pre 1950s), Myanmar have been affected by the coups.

Recent Coup in Myanmar:

The country of Myanmar located at south east Asia is known as Burma. It is a neibhouring country of India, which has the population of 54 million and more, experienced an unfortunate event recently. On the first day of February 2021, there was turn of events, where the people who slept under democratic rule, woke up under military rule. The democratically, people elected government under the leadership of the prominent leader Aung San Suu Kyi, was deposed and the military took over the administrative power of the country, by detaining the most prominent leaders of the newly elected cabinet. This was a shocker or the people of Myanmar as they had come out of Military rule in the year 2011, after a very long period under military rule i.e., from the year 1962 to 2011. The military that seized the power, declared emergency for one year which can be extended as per the circumstances. This coup came as support to the opposition’s claim of improper and unfair elections and demanding of re-elections. But the election commission stood beside the National League for Democracy which had won the general elections by landslide victory, under the leadership of Ms Suu Kyi, had set aside these claims citing them as baseless. This led the military to intervene and the loyalty of senior authorities towards the commander in chief rather than the state, contributed to the success of the coup. The democratic leader who was under house arrest for over 20 years, is again detained and the power is snatched which, as per them is rightfully acquired. The commander in chief Min Aung Hlaing is the person in charge after the coup. This event has triggered a series of reaction all over the world. There are many protests and debates for and against this move from the military, which just discarded the people’s selection, which should be the primary priority. The new president of United States-Joe Biden, who has assumed the power recently has threatened the military to step back or face the sanctions imposed. United Kingdom, also supported United States, along with United Nations and also backed National League of Democracy. This has hit the world of social media, as anyone would be shocked to see their world turned upside down when they wake up. As said earlier, there has been 227 successful coups and 400+ coup attempts, the question rises whether the better form of government is military dictatorship?

Military Dictatorship: Ideal Way for Betterment or Massacre?

The world has witnessed the worst of atrocities by a military dictator as well as benevolent dictator rule. Example of same i.e., best rule is the dictator rule in Brazil. But it is very unfortunate to say that, the most disciplined and stringent type of government or rule has led to several atrocities and massacres in course of time. The research says most disciplined and stringent because, the world knows how a military or soldier is. People cannot find anyone who is more disciplined than soldier. But that rule by soldier has led to loss of life by many innocents. The example of Germany, which under the rule of Hitler, witnessed the massacre of a large number of Jews, which changed the colour of the land to red. Around 6 million Jews were killed and this black incident is termed as ‘The Holocaust’. Similarly, in Italy, Mussolini who first disagreed with Hitler, later joined hum and declared war against France and Great Britain that led to loss of life of many innocents. When it comes to Pakistan, our neighboring country, there has ben 3 wars fought with India in the year 1947, 1967, and 1973. These were all under the military rule and the decision taken in greed of power and expanding the territory. All of these wars have been dominated by India and it’s been proved costly on part of Pakistan, as they had to lose a lot of soldiers, along with ammunitions, equipment, aircrafts, sub marines, etc. Also, the military rule or dictatorship gives the full authority to military. Power corrupts people and absolute power corrupts people absolutely. Along with these 3 wars, the military aggression of 1999 in Kargil sector of India, can also evidently prove the incapability of certain military powers to rule the country. Military rule or dictatorship is an ideal form only when it arises due to necessity, but not of aggression and during unnecessary circumstances and greed of power. A country which has military rule against the will of people, must be ready to face revolution and that rule will come down some or the other day.                       


[1] Merriam-Webster’s, Dictionary of law (Feb. 20th,2021,5:06 PM),

https://www.merriam-webster.com/dictionary/coup

[2] Times of India, The curse that no Pakistan ruler has ever escaped (Feb 20th,2021,7:21 PM) https://timesofindia.indiatimes.com/world/pakistan/the-curse-that-no-pakistan-ruler-has-ever-escaped/articleshow/64745781.cms

[3] Federation of Pakistan v. Maulvi Tamizuddin Khan; (1995) PLD FC 240

Author: Karthik Surya MR ,Christ University, Bangalore

Editor: Kanishka VaishSenior Editor, LexLife India.

Press Freedom and COVID-19

Reading time : 12 minutes

Journalism in India has become a very dangerous pursuit during these times. Therefore, it has become even more important to know about the freedom of expression and movement that journalists are entitled to hold as per the constitution of this country. This article aims to draw the reader’s attention to the recent legal developments that have taken strict regulatory measures to censor press and criticism in general via independent media platforms, in pretext of maintaining law and order in the society. For that it is important to understand the scope of freedom provided under Article 19 of the constitution and whether the measures undertaken and laws implemented are arbitrary in nature and thus, violative of these fundamental rights.  Article 19(2) is often cited by the courts and the state to justify the measures undertaken for public order and security. This paper will also touch upon those laws that are often being implemented against journalists, violating their right to freedom of expression and movement. The article does that by providing some instances of arrests and arbitrary regulations which have become major hindrances for journalists to bring forth their voices and also a major question of security for media personnels.

Press Freedom under the Constitution

Freedom of press is not specifically provided under the constitution but it is given as a part of freedom of speech and expression under Article 19(1). Press acts as a watchdog over the three organs of government, i.e. legislature, executive and judiciary.  But this right is not absolute and the state is entitled to impose “reasonable restrictions  in the interests of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to offence”[1] as given under clause 2 of Article 19.

In the case of Romesh Thappar v. State of Madras[2], the Supreme Court held that the freedom of press is an essential part of democracy and can only be limited through a law, within the definition of Article 19(2). 

In the case of  Indian Express Newspapers v/s Union of India[3], the Supreme court outlines three essential elements of freedom of press in India, which are; freedom of access to all sources of information, freedom of publication and freedom of circulation. This states that freedom of press is not just limited to any of the above mentioned but includes all three as primary requisites within the definition of freedom of expression.

This has been rearticulated in various other cases, such as in the case of Secretary, Ministry of Information and Broadcasting, Govt of India and Ors v. Cricket Association of Bengal and Ors[4], the apex court held that Article 19 incorporates the right to information for every citizen, along with the right to acquire and disseminate information. They also included the right to communicate through all means from print to electronic media. Cyberspace has become a very important source of information in today’s time and for that purpose the apex court has stated that the right under Article 19 would hold the same meaning irrespective of the mode of communication.[5]

Another important precedent was laid down in the case of Sahara India Real Estate Corporation Ltd. v. Securities and Exchange Board of India[6], where the court held that right to expression of thoughts does not only include thoughts that are ‘accepted’ or are ‘acceptable’ to the people at large. Right to speech and expression include the right to information from all kinds of sources and from all different perspectives.

Legal Restrictions placed during COVID Pandemic situation

Due to the current pandemic situation and lockdown regulations, many laws that have been so far used only under a severe law and order crisis are now implemented to justify undue censorship and restrictions, bordering excessive control of media. This has left several individual journalists or small media houses in a crunch, devoid of protection from threats and arbitrary arrests.

The Disaster Management Act, 2005[7]

The 21 day lockdown with its regulations was imposed under this Act only. To understand how this Act is unreasonably used to arrest journalists, it is important to know some of its targeted sections.

Section 51 punishes those who obstruct any officer or authority in their functioning or refuses to comply with any directions placed by them. Section 52 criminalizes fake claims made by a person, where the person knows it to be false or has reasons to believe it to be false. On the same lines, causing or circulating false alarm about the disaster in relation to its magnitude or severity leading to panic is also punishable under Section 54.[8]

The Indian Penal Code, 1860[9]

According to Section 188 of IPC, if a person disobeys any official order by a public officer which tends to cause obstruction, harm or annoyance, or any risk to that lawfully employed officer, will be a punishable offence. It will be more severe if the act of disobedience runs the risk of danger to human life, health or safety, or causes or tends to cause a riot or affray. Section 269 states that any act done unlawfully or negligently, where the doer knows or has reason to believe that it is likely to lead to a spread of disease dangerous to human life, is punishable for an imprisonment of six months or fine, or both. Section 270 increases the punishment to a maximum of two years of imprisonment if the same act is done malignantly or with a deliberate intention. According to Section 505, making, publishing or circulating any statement or report with an intent to or is likely to induce fear or alarm in the minds of the public or any section of the public and induce them to commit a crime against the state or against public tranquility or induce a class or community to commit an offence against any other class or community is punishable with imprisonment of three years or fine, or both.[10]

The Epidemic Diseases Act, 1897

Section 3 of this Act when read with Section 188 of IPC, punishes all those who violate any of the other provisions mentioned in the Act, which includes circulating fake news, disobeying government guidelines or orders, etc.[11]

Under the Epidemic Act, state governments are also given the power to issue regulations to deal with COVID-19. The Maharashtra government issued regulations prohibiting organisations or individuals from reporting any information about COVID-19 without prior clearance from government health authorities, in order “to avoid the spread of misinformation.”[12]

This is after a Supreme Court case where it held that all information should be official reports issued by the government. This could further mean that whatever data the government provides regarding the virus is the only data available to the general public without any inputs from private sources.

The Information Technology Act, 2000

According to Section 64A of this Act, the central government is granted the power to block contents on electronic media on the grounds that such content is enticing people to commit a cognizable offence.[13] Procedures and safeguards that the government is required to follow are given under the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (known as the Blocking Rules). [14]

This section along with the Indian Telegraph Act[15], is used to implement internet shutdowns in various places near Delhi NCR border and in the past in Kashmir as well in an attempt to block contents and deal with “fake news.”[16]

In Kashmir, the new ‘2020 Media Policy’ is believed to be enforcing an Orwellian system in the Indian democracy, in the sense that it gives further means to the government to intimidate journalists and control the press. The policy intends to give the power in the hands of the government to decide what information is fake or “anti-national.” Government officials will sit as judges to decide on plagiarism or journalist ethics. This will have a direct or an indirect impact on media regulation or information circulated among the people, shifting the accountability of media houses from the general public to these government officials.[17]

Instances of arbitrary arrests

Free Speech activists have claimed that there have been several arrests of journalists throughout the country, under the Epidemic Diseases Act, 1897, Disaster Management Act, 2005 and several sections of IPC, 1860, “to curb criticism against  authorities in the name of the health care emergency.”[18]

Om Sharma, a reporter in Hindu Daily Divya Himachal was reporting on the lack of ration supply in Solan district. His facebook live video on the same was targeted by the local police, claiming it to be false. He was booked for charges under Sections 336, 182, 188 and 269 of the IPC and Section 54 of the Disaster Management Act on March 29, 2020.[19] Another reporter, a cameraman Damodar was arrested from Tamil Nadu’s Minjur district for capturing a picture of a staff at a Public Health Centre for distributing medicines without a proper prescription. He was allegedly charged for cheating, forgery and preventing a public servant from discharging his duty.[20] Pandian, founder and chief executive of Simplicity new portal was arrested under Section 188 and 505 (1) of the IPC, 1860 and under Section 3 of the Epidemic Diseases Act, 1897 for disobeying regulations during a pandemic. This was done as an aftermath of a report published by him on April 18, 2020, which alleged government corruption in food distribution during the lockdown.[21]

There are many such cases reported within the period of pandemic solely on these laws and regulations. Apart from this UAPA is also used ambiguously to stop criticism against the government, labelling journalists as terrorists.[22]

Current Position

In the World Press Index India has ranked 142 out of 180 countries, with an increase in the cases of murder of journalists in 2020 from previous year.[23] In the case of Alakh Alok Srivastava v. Union of India, 2020, a PIL was filed for the grievances of migrant workers during covid pandemic situation, where the court discussed briefly the role of media. The relevant extract from the order is as follows:

“In particular, we expect the media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated. A daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within a period of 24 hours as submitted by the Solicitor General of India. We do not intend to interfere with the free discussion about the pandemic, but direct the media to refer to and publish the official version about the developments.”[24]

After this order, the center has initiated measures to create a web-portal where people can go to “verify facts and unverified news.” This portal is now created. However, it is alleged that the information provided is only what the government wants to circulate.[25]

Also read: LGBTQ

In another PIL, the Journalists Union has moved the court for the inhuman and illegal treatment meted out to them by their employers in the wake of the pandemic. Even though the Prime Minister himself has spoken of the continuing need of media via both print and electronic means, many media organisations have filed termination notices or are paying minimal wages or are forcing their employees to go on an unpaid leave, etc.[26] These measures have financial crippled journalists, especially those who are going into the field already risking their health or in some cases chances of arrest. Their vulnerability came to light through many instances, one of which happened on April 12, 2020, when some journalists reporting in the suburbs of Thane were tested positive for covid. However, even after this incident print and electronic media houses continued coverage. But the media organisations are yet to take the responsibility of testing their employees who are working outside home.[27]

Even now, there is internet shutdown preventing media coverage in protest areas around Delhi borders. Delhi Police had also stopped journalists and others from entering the Singhu border without prior official permission on 2 February, 2021.[28]

Conclusion

With its many challenges, it has brought another shadow pandemic in the field of free and fair reporting of information. Moreover, this pillar of democracy is biting its own roots with corrupt and unethical means of journalism, and public pleasing practices, as is especially seen in the case of big mainstream media houses. They have started to monopolies and flood the general public with useless propaganda and communal bias. This right-wing populism has undermined basic freedom of speech and expression in a democracy. The majoritarian government has laid down enough ground for the media to dance in its tunes, where it shows its favoritism to its mouthpieces and executes arbitrary control over others.[29] In order to avoid further crippling of the press, government regulations should be seen in a wider perspective to include their consequential interpretation. More accountability should be placed with the  government while censoring information as fake news or anti-national. The relevance of reasonableness while restricting the fundamental freedom, as given under Article 19 should not be forgotten in the context of press freedom as well. Even if it is not specifically provided under Part III of the constitution, press freedom takes its jurisprudential and constitutional values in the very principles of democracy and accountable government. 


[1] The Constitution of India, art. 19(2), available at: https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf (last visited on February 10, 2021).  

[2] Romesh Thappar v. State of Madras, AIR 1950 SC 124.

[3] Indian Express Newspapers v/s Union of India, 1986 AIR 515.

[4] Secretary, Ministry of Information and Broadcasting, Govt of India and Ors v. Cricket Association of Bengal and Ors, 1995 AIR 1236. 

[5]Singhal v. Union of India, (2013) 12 SCC 73.

[6] Sahara India Real Estate Corporation Ltd. v. Securities and Exchange Board of India, (2013) 1 SCC 1.

[7] The Disaster Management Act, 2005, available at: https://cdn.s3waas.gov.in/s365658fde58ab3c2b6e5132a39fae7cb9/uploads/2018/04/2018041720.pdf (last visited on February 10, 2021).

[8] Sanjay Ghose and Rishabh Jetley, “When Freedom of Press is Stricken with the Coronavirus,” The WIRE, April 16, 2020.

[9]The Indian Penal Code, 1860, available at: https://www.indiacode.nic.in/handle/123456789/2263?locale=en (last visited on February 10, 2021).

[10] Supra at 8.

[11] Epidemic Diseases Act of 1897, s. 3, https://www.indiacode.nic.in/bitstream/123456789/2326/1/A1897_03.pdf (last visited on February 10, 2021).

[12] Maharashtra Covid-19 Regulations, 2020, https://perma.cc/9KXF-38TB (last visited on February 10, 2021).

[13] Information Technology Act, 2000, No. 21, s. 69A, https://perma.cc/4TWL-Q4MY (last visited on February 10, 2021).

[14] The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (known as the Blocking Rules), https://perma.cc/6THW-MKHW (last visited on February 10, 2021).

[15] Indian Telegraph Act, 1973, No. 13 of 1885, https://perma.cc/RE5G-GR8S (last visited on February 10, 2021); Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, Gazette of India, pt. II, § 3(i) (Aug. 8, 2017), https://perma.cc/PG47-UDL5, (last visited on February 10, 2021).

[16]LAW LIBRARY, Freedom of Expression during COVID-19,  September, 2020, https://www.loc.gov/law/help/covid-19-freedom-of-expression/freedom-of-expression-during-covid-19.pdf

[17] “Ministry of Truth,” The Indian Express, February 10, 2021, https://indianexpress.com/article/opinion/editorials/jammu-kashmir-new-media-policy-6454570/.

[18] The Rights and Risks Analysis Group (RRAG), India: Media’s Crackdown During COVID-19 Lockdown (June 15, 2020), https://perma.cc/7EL2-8KJ4 (last visited on February 10, 2021).

[19] Ayush Tiwari, “Gagging the Media,” Newslaundry, May 7, 2020, https://www.newslaundry.com/2020/05/07/gagging-the-media-a-list-of-indian-journalists-booked-arrested-assaulted-during-the-lockdown.

[20] Supra at 17.

[21]Arun Shankar, “Police in India’s Tamil Nadu state arrest journalist over COVID-19 coverage,” CPJ, April 24, 2020, https://cpj.org/2020/04/police-in-indias-tamil-nadu-state-arrest-journalis/.

[22] Geentika Mantri, “67 Journalists arrested, detained, questioned in India in 2020 for their work,” The Newsminute, January 6, 2021, https://www.thenewsminute.com/article/67-journalists-arrested-detained-questioned-india-2020-their-work-140963.

[23] 2020 World Press Index, available at: https://rsf.org/en/ranking, (last visited on February 10, 2021).

[24] Preetika Dwivedi, “Supreme Court and the Fourth Pillar,” Bar and Bench, April 25, 2020, https://www.barandbench.com/columns/supreme-court-and-the-fourth-pillar.

[25] Id at 24.

[26] “Journalists unions move SC, allege media companies using lockdown for layoffs and salary cuts,” NH, April 17, 2020, https://www.nationalheraldindia.com/india/journalists-unions-move-sc-allege-media-companies-using-lockdown-for-layoffs-and-salary-cuts.

[27] Shweta Desai, “Who will write for us if we fall sick?: The vulnerability of Journalists during times of Covid-19,” Newslaundry, April 23, 2020, https://www.newslaundry.com/2020/04/23/who-will-write-about-us-if-we-fall-sick-the-vulnerability-of-journalists-during-times-of-covid-19.

[28] “Police blocks entry to journalists, others to protest site at Singhu border,” The Hindu, February 2, 2021, https://www.thehindu.com/news/cities/Delhi/police-blocks-entry-to-journalists-others-to-protest-site-at-singhu-border/article33728238.ece.

[29] Sarah Repucci, “Media Freedom: a Downward Spiral,” Freedom House, https://freedomhouse.org/report/freedom-and-media/2019/media-freedom-downward-spiral, (last visited on February 10, 2021).

Author: Kriti Shukla

Editor: Kanishka VaishSenior Editor, LexLife India.

Code of Civil Procedure, 1908: Place of Suing

Reading time : 8 minutes

Introduction

“Ubi Jus Ibi Remedium” which illustrates that where there is right there is a remedy.

A basic principle of the English law that has been adopted and made into the force by the Indian law. It implies that whenever a person’s personal rights have been violated or impeded or the person is prevented by the others from accessing the rights so pledged to him, some judicial tribunal must have the jurisdiction to adjudicate on the dispute and, as per the case, the rights so pledged should be reinstated or compensated. In order to recover the rights or claim damages or impairment sustained, the individual must approach the appropriate forum that does have the jurisdiction to adjudicate on the matter and grant the remedy requested. So, to deal with that matter, the forum should have jurisdiction. Jurisdiction typically indicates the jurisdiction or authority of the court of law to hear and evaluate a cause or an issue. In other phrases, jurisdiction implies the authority that a court should decide the matter before it or take cognizance of the matters submitted for its judgment in a formal manner.

“That before a court can indeed be held to only have jurisdiction to determine a particular issue it not only must have jurisdiction to try the suit brought but also must have the authority to implement the order pursued for.

Jurisdiction

Jurisdiction may be classified as the threshold of a judicial authority or the degree to which a court of law may take precedence over proceedings, lawsuits, appeals, etc.

According to Black Law’s dictionary, Jurisdiction means; “The competence of the court to decide on a dispute or issue a decree.”

In the “Hriday Nath Roy v. Ram Chandra” case, A Calcutta High Court judgement in 1921 sought to interpret the comprehension of the term ‘jurisdiction in meticulous detail.’ The Bench specified;

“A study of the cases in the books reveals several attempts to clarify the word ‘jurisdiction,’ defined as ‘the capacity to investigate and analyze substantive and procedural issues;’ the authority under which three judicial officers interpret and decide the purpose;’ the ability to hear and settle a legal dispute; The ability to hear and evaluate the subject-matter of the dispute between the parties to a lawsuit and to adjudicate or exercise certain judicial authority over them;’ the authority to hear, decide and impose a judgement on the issues before the Court;’ the authority or authority conferred on a Court by the Legislature to recognize and enforce cases between the parties and to make the judgments essential.”

Kind of Jurisdiction and place of suing (Sec 15-20)

Basically, there are three different types of jurisdictions on the grounds of which the place of prosecution may be established. These are,

  1. Pecuniary Jurisdiction
  2. Territorial Jurisdiction
  3. Subject-matter Jurisdiction

If the matter posted before the court by the litigant for proceedings, and the court has all of these (pecuniary, territorial and Subject-Matter) jurisdiction, only then that tribunal can prosecute the litigants’ disputes so presented. In the event that the court does not have any of the jurisdiction alluded to above and proceeds to try the suit, depending on the circumstances, it can either be considered an irregular exercise of jurisdiction or a lack of jurisdiction that could make the judgement invalid or voidable. 

Pecuniary Jurisdiction – Section 15

Pecuniary indicates ‘money-related’. Pecuniary jurisdiction seeks to decide whether a court of law can pursue the monetary value/amount of the case or complaint in dispute in cases and lawsuits. The code requires the case to be analyzed until the value of the suit reaches the court’s financial cap.

Now, the main question is, who should ascertain the valuation of the suit for the purpose of assessing the pecuniary jurisdiction of the court. In particular, it is the valuation done by the plaintiff is presumed for the purpose of assessing the pecuniary jurisdiction of the court, unless the court since the very face of the suit find it erroneous. Therefore, if the court determines that the evaluation performed by the plaintiff is not reliable, that is either undervalued or overvalued, the court will conduct the assessment and guide the party to approach the appropriate venue.

So, prima facie, it really is the valuation of the plaintiff in the complaint that decides the court’s jurisdiction and not the amount for which a decree may eventually be issued. Therefore, if the lowest grade court’s pecuniary jurisdiction is, assume, Rs.10, 000/- and the plaintiff filed a lawsuit for accounts wherein the plaintiff’s valuation of the suit it is within the court’s pecuniary jurisdiction, but the latter court finds that Rs.15, 000/- is due on taking the transactions, the court is not stripped of all its jurisdiction to pass a ruling for that sum.

Usually, in the lawsuit, a court may recognize a valuation of the plaintiff and proceed to determine the dispute on the merits on that basis, but that does not guarantee that the plaintiff is free to attach any arbitrary value to the complaint in all cases and to choose the court in which he wishes to file the complaint.

If it indicates to the court that, in order to escape the jurisdiction of the proper court, the valuation is wrongly rendered in the complaint, the court may require the plaintiff to show that the assessment is legitimate.

Case Law:

Kiran Singh and Others vs Chaman Paswan and Others (1954 AIR 340, 1955 SCR 117)

In the subordinate court, the plaintiff filed a petition comprising an amount of Rs 2950, but the court refused the lawsuit. Later, the High Court permitted his next appeal, but it directed him to pay the full amount of the deficit. The appellant challenged the dereliction of the district court’s ruling, but the High Court discarded the lawsuit. The Supreme Court later upheld the High Court’s decision to declare that the district court’s decision would not have been void.

Territorial Jurisdiction – Section 16-20

The geographical limits of a court’s authority are clearly demarcated and defined within this territorial or local jurisdiction. Beyond that geographical/territorial cap, it does not exercise authority. For instance, if a certain crime is committed in Madhya Pradesh, the case can be heard and resolved only by the courts of law within the boundaries of Madhya Pradesh.

Section – 16: Subject to the pecuniary or other restrictions prescribed by any statute, suits—suits to be initiated where the subject-matter bundles

(a) For the recovery of real estate both with and without rent or benefit,

(b) In respect of an immovable property division,

(c) For foreclosure, sale or reimbursement in the case of an immovable property mortgage or fee,

(d) For every other right to or interest in immovable property to be determined,

(e) For remuneration for immovable property misconduct,

(f) For the retrieval of movable property allegedly under distraction or intrusion, within the local limits within which jurisdiction the property is situated, the Court shall establish:

Provided that a lawsuit to obtain relief respecting, or compensation for, immovable property maintained by or on behalf of the respondent, may be instituted in either the Court inside the local limits of whose jurisdiction the property is situated, where the relief pursued can be fully obtained through his personal subservience, Or within the territorial limits in which jurisdiction the defendant currently and willingly lives, or carries on business, or operates for profit directly, in the Case.

Section – 17: Immovable property suits fall under the jurisdiction of multiple courts.

Where a lawsuit seeks relief from, or reimbursement for, immovable property situated within the jurisdiction of a separate Court, the lawsuit can be brought to any Court within the local limits of the jurisdiction of which any proportion of the property is stationed:

Provided that, as regards the importance of the subject-matter of the suit, the Court is aware of the entire allegation.

Case Law:

Harshad Chiman Lal Modi vs Dlf Universal & Anr (Appeal (civil) 2726 of 2000)

Section 16 was interpreted by the court as implying that the immovable property claim should be brought before the court. The court does not even have the authority to assess the rights of properties that are not located. However, if the opposing party agrees to try the suit in such a situation, the court will still pass a remedy.

Subject – Matter Jurisdiction

The subject matter can be portrayed as a court’s authority to comprehend and try cases relating to a particular category of subject matter. This implies, in other words, that some courts are prohibited from hearing cases of a certain essence.

Different courts were empowered to determine various types of lawsuits. There is no jurisdiction for certain courts to attract certain suits. For instance, a Court of Civil Judge cannot accommodate testamentary succession, divorce cases, probate proceedings, insolvency matters, etc. (Junior Division). In terms of subject matter, this is labelled jurisdiction.

Objection as to Jurisdiction – Section 21

  1. No challenge as to the position of proceedings shall be raised by any appeal or by the Revisional Court until such objection has been raised at the earliest opportunity by the Court of First Instance and in all cases where, at or before such settlement, proceedings have been raised or resolved and unless there has been a corresponding miscarriage of justice.
  2. No objection as to the jurisdiction of a Court of Appeal with respect to the pecuniary limits of its jurisdiction shall be presented by any Appellate or Revisional Court until such objection has been posed at the earliest possible opportunity in the Court of First Instance, except in all cases where matters have been concluded, at or before such conclusion, and unless there has been a corresponding miscarriage of justice.
  3. Any Appellate or Revisional Court shall not raise an exception as to the legitimacy of the executing Court with respect to the local limits of its jurisdiction, until such an opposition has been raised as early as possible by the executing Court and unless there has been a corresponding failure of justice.

It is a simple law that nullity is a decree of a tribunal without jurisdiction. Halsbury stated rightly;

“Where a court is without jurisdiction to take any particular action or substance because of some kind of restrictions imposed by the statute, charter or commission, although neither acquiesce nor even the express approval of the parties may bestow jurisdiction on the court or it may consent to the jurisdiction of the court if a requirement that lines the inner surface of the jurisdiction has not been accomplished or achieved.”

Case Law:Kiran Singh V. Chaman Paswan, (AIR 1954 SC 340)

This does not refer, however, to territorial or monetary authority. Where an error in the exercise of jurisdiction with regard to pecuniary or territorial jurisdiction is committed by the court, the judgement so rendered shall not be invalid and shall be treated as an irregular exercise of jurisdiction. No doubt, the party has the right to raise the question, but the same cannot be raised at all at the appeal stage at the earliest possible time and until the court has continued with the case and issued the decision. As observed in this particular case.

Case Law:Kiran Singh V. Chaman Paswan, (AIR 1954 SC 340)

This does not refer, however, to territorial or monetary authority. Where an error in the exercise of jurisdiction with regard to pecuniary or territorial jurisdiction is committed by the court, the judgement so rendered shall not be invalid and shall be treated as an irregular exercise of jurisdiction. No doubt, the party has the right to raise the question, but the same cannot be raised at all at the appeal stage at the earliest possible time and until the court has continued with the case and issued the decision. As observed in this particular case.

Conclusion

The notion of the place of suing is very essential as it helps to establish the jurisdiction of each court. This allows the plaintiff to file a complaint. It saves the court’s time in deciding the court’s jurisdiction. The civil court is competent to investigate whether the court and quasi-judicial or legal executive bodies have acted within their jurisdiction. It can be presumed that section 9 deals essentially with the problem of the jurisdiction of the civil court to consider a matter. The civil court has jurisdiction to consider a civil lawsuit, except where the notification is explicitly prohibited or banned by substantial action.

Author : Avnip Sharma

Editor: Kanishka Vaish, Editor, LexLife India.

Here is what Telangana High Court said on Slaughter of Camels

Reading time: 3-4 minutes.

A petition was filed before the Telangana High Court regarding the inaction of the Respondents in connection with the illegal transportation of camels into the State and their consequent slaughtering.

The Petitioner has prayed for a writ of Mandamus, directing the Union to ensure strict compliance of the provisions of the Prevention of Cruelty to Animals Act 1960 (hereinafter after referred to as “the Act, 1960”) and the relevant rules framed thereunder.

The Court has given an interim order before hearing the case on merits. In the interim order, Respondents have been directed to inspect slaughterhouses in the twin cities of Hyderabad & Secunderabad and Ranga Reddy District, to take strict action against those who are violating the laws, and to prevent the illegal killing of camels in the aforementioned areas.

Further, they have been directed to publicize the fact that the transportation and slaughtering of camels is an illegal activity, through electronic and print media. In this article, the author will discuss the legal provisions involved, the interim order, and its ramifications. 

What are the facts of this issue?

During Ramadan, there is a tradition of consumption of camel meat in the State of Telangana. As a result of which camels are illegally (allegedly) transported from Rajasthan to the State and slaughtered.

Also read: Elephant death in Kerala: Legal angle

However, prohibition is placed on the transportation of camels outside of Rajasthan by the Rajasthan Camel (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Act, 2015 (hereinafter after referred to as “the Act, 2015”).

Since the acts amount to cruelty, under the provisions of the Prevention of Cruelty to Animals Act, 1960, and the Rules made thereunder, the Respondents are duty-bound to protect the interests of the animal. 

The Petitioner further submits that since during 2013 to 2017, only seven cases were registered against owners of slaughterhouses where camels were found to be slaughtered, though it has trickled down to zero after 2017.

There is laxity as the Core Committee, constituted by the Animal Husbandry Department on 19.04.2020 and the State Animal Welfare Board are absolutely dysfunctional.

The Respondents contend that the concerned authorities have taken proactive measures to inspect the licensed and unlicensed slaughtering houses functioning in the twin cities of Hyderabad & Secunderabad, and Ranga Reddy District.

What are the relevant legal provisions?

Article 21 read with Article 51A (g), and Sections 3 & 11 of the Act, 1960 make it clear that animals are guaranteed the rights to be treated with compassion, dignity, and to be free from unnecessary pain and suffering. This is the constitutional mandate. In lieu of the same, we have the Act, 1960 and other allied statutes.

Now, the Act, 2015 states that no camel could be transported to any other State for any purpose, including slaughter. Illegally transporting the camels and slaughtering them is an offense punishable under Sections 4 and 3 of the Act, 2015. 

In Animal Welfare Board of India v. A. Nagaraja and Ors (2014 (7) SCC 547), the Supreme Court held that animals have the right to live with dignity and security. Clearly, illegally transporting camels and slaughtering them is a thorn to the many decisions of the Hon’ble Supreme Court.

Also read: Kerala Elephant Tragedy: Legal Angle

Section 11 (1)(d) states that if any person conveys or carries, whether in or upon any vehicle or not, any animal in such a manner or position as to subject it to unnecessary pain or suffering he shall be punishable, in the case of a first offence, with fine which shall not be less than ten rupees but which may extend to fifty rupees and in the case of a second or subsequent offence committed within three years of the previous offence, with fine which shall not be less than twenty-five rupees but which may extend to one hundred rupees or with imprisonment for a term which may extend to three months, or with both.

Let us analyse this situation…

The decision faces the issue of transgressing into the religious arena as the killing of animals for consumption is an exempted ground under the Act, 2015.

Also, petitions are lying before the Hon’ble Supreme Court contending that laws that prohibit propitiation of deity through the sacrifice of animals and birds violate Article 14, which is the right to equality.

Previously also the Hon’ble Supreme Court has refused to interfere in religious affairs and noted that the judiciary could not stop centuries-old traditions of sacrificing animals.

Also read: Restrictions imposed on religious places: Legal angle

In the present case, there are two facets though; slaughtering camels brought from Rajasthan is illegal and punishable, however, camels that are brought from some other places, such as Gujarat, could be exempt from the scope of the instant case. However, the Court has not made any such distinction.

The decision to direct the respondent to ensure strict compliance with inspection and taking action against people who violate the law and bring the camels illegally into the State is one of the mechanisms through which people who violate the laws can be caught and punished. 

In conclusion…

The import of this order is that the Telangana government has now declared transportation and slaughter of camels to be a criminal offence and those caught doing it would be prosecuted and punished if found guilty.

Also read: All you need to know about: The Rights of Accused & Victim

The State Police has advised the public not to engage in activities such as transportation and illegal slaughtering of camels and sale of camel meat.

Further, they have advised the public to report any violations, through call (Dial 100) or Whatsapp (Number 9490617444) with the guarantee that the identity of the person who reports the violation, will be kept confidential. 


Author: Sreyas T Manoj from The National University of Advanced Legal Studies (NUALS), Kochi, India.

Editor: Astha Garg, Junior Editor, Lexlife India.


Termination of Teachers in Tripura: Legal Angle

Reading time: 8-10 minutes

Rule of law is one of the essential and underlying features of the Indian Constitution. It sets out the structure by which the power of the State is limited and not unfettered. Equality before the law and fairness in the application of the law are the two most important aspects of the rule of law. Article 14 and 16 of our Constitution ensures that the State shall treat all persons equally in matters of employment. Therefore, the selection process in any public institution should be fair and justified.

Appointments at public offices should not be guided by bribery or nepotism. As noted in the case of State of Punjab and Ors. vs. Brijeshwar Singh Chahal and Ors.,  “Appointments made arbitrarily, without any clear selection process or for political reasons, will be subject to judicial review and will be liable to be quashed.”It is in the public interest that the selection and appointment process should be transparent in order to make it foolproof. The present case in which the Apex Court confirmed the termination of 8,882 ad hoc teachers in Tripura is based on similar lines. The Division Bench of Hon’ble Supreme Court, in Ajoy Debbarma and others Versus State of Tripura and others, observed that because their very selection and appointments were found to be unconstitutional and invalid, the candidates concerned could not be given any other advantages.

Facts of the Issue

In 2014, the selection of 10,323 teachers by the state government of Tripura was challenged before the High Court in Tanmoy Nath vs. State of Tripura & others. It was argued that the selection process contained discrepancies.  The Hon’ble High Court concluded that the selections and the relevant policies were illegal and arbitrary, as the appointments were not in accordance with the provisions of the National Council for Teacher Education Act, 1993, and suffered due to favoritism and nepotism.  Consequently, the Apex Court issued directions to the Tripura government that the State should establish a new employment policy within two months. The selections shall be made as soon as possible and no later than 31.12.2014, in accordance with the new policy. The Hon’ble Court also made it clear that no other advantages will be given to the candidates.

 “We would like to make it clear that there can be no preference or reservations dependent on age other than the benefits mentioned by us above. No preference shall be granted to dependent government officials or retired government employees or retrenched employees etc. There can be no linguistic or religious minority reservations, except on an area-wide basis.”

In 2017, the decision of the Tanmoy Nath case was appealed against in the Supreme Court. The Apex Court while rejecting the appeal, modified the orders of High Court and directed the Government of Tripura to complete the fresh selection process by 31 December 2017 or before that.

The time given by the Supreme Court in the directions issued in the 2017 Order has been extended from time to time and the Supreme Court has finally issued instructions on 01.11.2018, extending the service duration of the teachers concerned to the completion of the 2019-2020 academic session.

Consequently, as per the instructions issued by the Supreme Court in 2018 and the direction issued in Tanmoy Nath‘s case, the teachers’ services were terminated after the 2019-20 academic session was over. Some of them have challenged their termination before the High Court of Tripura. The Hon’ble High Court dismissed their petition stating that petitioners seek review of the decision given in Tanmoy Nath‘s case which is not in accordance with the law, more so on the doctrine of merger. This judgment of Hon’ble High Court was challenged in the Supreme court. The Apex Court dismissed this appeal on the basis that the validity and legality of the complete selection process and the appointment of approximately 10,323 teachers were discussed in detail in the Tanmoy Nath case. The Supreme Court further directed that the State is obligated to undertake a selection procedure in which the applicants concerned are eligible participate, with age relaxation. The Court also pointed out that the attempt on the part of the State to offer some alternative employment is not to degrade the teachers, but to offer some consolation even in cases where the candidates do not succeed in selecting the teachers’ positions.

Thus, the above factual scenario led to the passing of the judgment by the Hon’ble Court of termination of 8882 teachers in Tripura with no other advantages to the concerned candidate.

Legal Provisions Involved

The legal provisions involved in the present case are Article 14 and Article 16 of the Constitution of India. Articles 14 and 16 falls within the framework of a constitutional right to equality. Article 14 focuses on the fundamental right to equality and Article 16 provides for the right to equal opportunity in matters relating to public employment. Thus, Article 14 read with Article 16 implies that the selection process in case of public employment should be such that all qualified applicants are given the equal chance of being selected.

Then comes the aspect of the Doctrine of Merger, which states that if the dispute before the superior court has been disposed of in some way i.e. either by affirming the judgment or order or by setting aside or by amending the same, the judgment of the Supreme Court shall be the final, binding and operational decision and the impugned order/judgment shall stand merged into the order passed by the Superior Forum, i.e. the impugned order/judgment retains no identity or enforceability of its own.

Critical Analysis                                              

The termination of teachers who were employed in the school education department has become a central political issue in the State of Tripura. The decision of the Supreme Court indeed seems to be a viable option, considering the law of the land, as the selection process is purely based on an oral interview which is contrary to the National Council for Teacher Education Act, 1993. The nepotism and favoritism in employing government teachers are against the spirit of equality, which is enshrined in Article 14 and Article 16 of the Constitution of India. As in the case Ramana Shetty v. International Airport Authority, the Apex Court had opined that “This Court relies on the observations of E.P. Royappa and Maneka Gandhi have again stated that state action must not be influenced by extraneous or irrelevant considerations, as that would be a denial of equality.” The present decision of the Supreme Court, therefore, confirms with the basic laws of the land. 

It is interesting to note that the Supreme Court affirmed the High Court decision of no other advantages to be given to the concerned candidate apart from age relaxation. This clearly shows the balanced decision of the Supreme Court in the present matter. The Court upheld the superiority of the law of the land, by disallowing any other advantages to candidates and simultaneously upheld the importance of equal opportunity by allowing age relaxation.

Conclusion

As the entire selection process was illegal and invalid, the only reasonable option that the Court could resort to, was to terminate the employment of the concerned candidates. The issue regarding the validity and legality of the entire selection process and the termination of 8882 government teachers was smoothly dealt with by the Hon’ble Court. The age relaxation allowed by the Hon’ble Court for application of post of teacher till 31.03.2023 will certainly provide the opportunity to the eligible and competent candidate to get selected for the post of government teacher in the legal and valid manner. Thus, the judgment handed down by the Hon’ble Court is rational and appreciable.

Author: Palak Jain, Institute of Law, Nirma University.

Editor: Astha Garg, Junior Editor, Lexlife India.

Analysis: Plea regarding delimitation exercise in Assam

Reading time: 8-10 minutes.

Recently, on a plea moved by the All India United Democratic Fund (AIUDF), a three-judge bench comprising of Chief Justice of India SA Bobde, R. Subhash Reddy and AS Bopanna issued notice to both the state of Assam and the Central government and has directed the latter to file a reply in the matter. The plea moved by AIUDF has challenged the proposed delimitation exercise ordered by the Central Government to be conducted for the State of Assam, after a Presidential Notification to that effect. Before getting into the specifics of the issue vis-à-vis the State of Assam and this decision of the Centre to order delimitation; it is imperative to understand the underlying legal and technical framework which have led to the present issue.

What is Delimitation?

Delimitation, simply put, is an exercise of routine nature which is done by various countries to reflect the changes in population in representational politics. By gauging the population figures, the countries redraw the territorial limits to electoral constituencies such that equal representation is provided to all sections of the population. The end result which it seeks to achieve is the equalising of electorate per seat and to give meaning to the “One Vote, One Value” principle, which is sanctimonious to a democratic and representative form of Government. It also helps to diversify the voter base, thereby ensuring that one political party does not acquire an unfair advantage over others by securing a specific “vote bank”.

In India, the power to order such a delimitation exercise is derived from some provisions of the Constitution itself. Article 82 of the Constitution bestows the power to readjust allocation of seats to the House of People and to alter territorial constituencies after each national Census, on the Parliament. This Article also grants the Parliament power to enact a law which prescribes the manner in which the exercise is to be carried out. This law takes the form of a “Delimitation Act”. Similarly, Article 170 provides for the division of States into territorial constituencies for the purpose of the election to the State Legislative Assemblies with reference to the population as ascertained by the national census.

Consequent to the power provided under the Constitution, India has conducted delimitation exercise four times, namely in the years 1952, 1963, 1973 and 2002. For every decade after the independence, except for the 1980s and 1990s, a Delimitation Act was brought into force to carry out the exercise of delimitation, after the conclusion of the National Census. The last Act was enacted in 2002, to carry out the delimitation exercise following the 2001 census. Further, Parliament by the 84th Amendment Act, has stayed the conduction of such delimitation exercise again, until after the publication of the first census held after the year 2026. The delimitation was last held before the 2009 General Elections.

The Stoppage and Resumption of Delimitation Exercise

Prior to the commencement of the delimitation exercise in 2008, the Central Government by way of an ordinance provided the President of India the power to issue an order to defer delimitation exercise in a State. The power could be exercised if the President was satisfied that a situation has arisen, which threatens the unity and integrity of India and can lead to a collapse of public order. The power was provided by making necessary amendments under the Delimitation Act, 2002. By utilising the powers under this Amendment [Section 10A (1)], the President of India issued an order on 8th February 2008, suspending the delimitation exercise for the States of J&K, Andhra Pradesh, Assam, Jharkhand, Manipur and Nagaland. A Delimitation Order was also issued after the completion of the exercise in 2008.

What brought the Assam delimitation issue to light and led to the filing of a plea, is the presidential order on 28th February 2020. The notification [S.O. 903(E)] cancelled the previous notification of 2008, which had temporarily halted the exercise in the State of Assam. The notification reads that due to improvement in security, law and order, it will be feasible to conduct the exercise as envisaged under the Delimitation Act of 2002. Subsequently, the Centre notified the constitution of a Delimitation Commission on 7th March 2020 with Justice (Retd.) Ranjana Prakash Desai as the Chairperson.

Claims and Counter Claims: The Assam Debate

The announcement of the resumption of delimitation exercise in Assam sparked up major controversy with contesting opinions from various social organisations and political groups. There are numerous contentions being raised by the opponents of this move.

It is being argued that the conduction of the exercise is proposed to be done with reference to the 2001 census figures. It is being argued that using 20 years old data will be prejudicial and will go against the intention with which the exercise is conducted in the first place. Using of the 2001 data will exclude recent changes to population and will not provide a perfect representation. Further, the suspension of the exercise in 2008 was done citing the pendency of the National Register of Citizens (hereinafter referred to as “NRC”) exercise. The Petitioners (and other opponents) claim that as the NRC exercise is still pending and is subject to revision, the delimitation exercise will lead to unjust inclusion and exclusion and will further complicate matters.

Another claim challenges the satisfaction of the President, regarding the law and order situation in the State. The Citizenship Amendment Act, coupled with the yet-to-be-formulated nationwide NRC saw widespread protests across the state of Assam, and a situation of unrest persists in areas of the indigenous population. Therefore, the opponents claim that the law and order situation is unfeasible to conduct the exercise.

Apart from the legal battle, opponents have also levelled allegations against the political intentions of the Bhartiya Janata Party (BJP), which is in power both in the State and at the Centre. Many, including the Petitioner, AIUDF, claim that the delimitation exercise is a ploy by BJP to restrict the increase in Muslim population in recent years, caused due to immigration. The BJP being a Hindu-nationalist political group, does not gain many votes from the Muslim population, and a delimitation accounting for their increase in numbers will hamper future prospects for BJP.

The opponents, have accordingly, requested for putting a halt on the delimitation exercise. They have suggested that preparation of the 2021 Census is underway and fresh figures should be used,  to provide an accurate representation of the actual demographic of the area.

However, the ruling party has backed the successful conduction of delimitation exercise in the State of Assam on the grounds of looking after interests of the State’s indigenous population. Various BJP leaders have expressed fears of a demographical shift in Assam owing to unchecked immigration into the State. The BJP government has placed reliance on Clause 6 of Assam Accord, which promised protection to the native population of Assam by way of constitutional, legislative and administrative safeguards, but has remained unfulfilled till date.

Conclusion

As the matter is sub-judice, and a reply is yet to be filed by the Centre, giving weight to arguments on one side would be unfair. In due course, with the Supreme Court having issued a notice in the case, will rule on its merits, and decide the fate of delimitation exercise in the State of Assam. The resumption of exercise has also raised concerns regarding the future and the status of the next exercise, scheduled to be conducted sometime after the publication of the 1931 census. It is important to note that the same bench of Supreme Court had also issued a notice to the Centre and the State Government on a similar plea on 28th May 2020. Now, both the pleas have been tagged together, and the bench will hear them together. The decision of the Supreme Court could also have a bearing on the delimitation exercise, of not just Assam, but for other States as well. Therefore, it will be imperative to give a judgement which balances the rights of different population groups and does not unfairly advantage one over the other.

Author: Anshum Agarwal from West Bengal National University of Juridical Sciences (NUJS), Kolkata.

Editor: Astha Garg, Junior Editor, Lexlife India

Analysis: Demolition of Vikas Dubey’s House

Reading time: 8-10 minutes.

Vikas Dubey is a name which has become a sensation of terror in the recent past with synonyms or titles such as ‘gangster’, ‘murderer’, ‘godfather of Uttar Pradesh’, etc. being affiliated with him. It was just a couple of weeks ago, when the Indian Media flashed our TV and mobile screens with only one name – the gangster, the daredevil, another name for death ‘VIKAS DUBEY’.

This story came to light on the night of 3rd July 2020, and ended up with the so-called “encounter” of the protagonist ‘Dubey’ within a week thereafter. This article aims at the discussing whether the retribution theory of punishment and “vengeance” have become synonymous with this country’s law enforcement agencies.  This incident, like many others of the past, is putting questions on the judicial system of this country asking if ‘the protectors of law are adamant on breaking it, then who is responsible to protect and maintain law and order in this nation’.

Facts of Incident

This incident set in motion a series of events which started on the night of 3rd July, 2020. According to the reports, the Police Authorities went to Vikas Dubey’s house on this night, to arrest him to investigate a case for Attempt to Murder having been filed against him. In response to the approaching police authorities, Dubey’s affiliates opened fire on the Police, killing 8 policemen and injuring several others.

In response to this incident, the concerned authorities including the district administration of Kanpur rushed to the gangster’s residence and demolished it completely, including his trucks and other vehicles. Thereafter, the gangster was arrested from Madhya Pradesh and on his way back to Kanpur, was killed in an “encounter”, which can be reasonably presumed to have been organized and planned by Police.

Legal Provisions Involved

Following the alleged “encounter”, a plea has been filed in the Supreme Court by Peoples Union for Civil Liberties seeking the intervention of the Special Investigation Team (“SIT”) to investigate the case. The Allahabad High Court has been moved in a PIL for a free, fair and impartial investigation, by the CBI or a SIT, into the entire episode of the demolition of the Late Gangster’s house, followed by the killing of 8 policemen which included a Deputy Superintendent of Police (DSP).

Adv. Prashant Shukla, the petitioner, says that he wishes to apprise the Court, “about the wrongful, illegal, and arbitrary measures being adopted by the administration and the State authorities while functioning, without any authority of law and due procedure of law.

The plea avers the fact that “the matter pertains to illegal, wrongful, arbitrary and vengeant act of the State authorities, wherein the house of a wanted and an accused in many cases has been demolished/razed and his cars & tractors have been destroyed by the authorities without following any due procedure of law.” The petitioner also pleads that although wishes his condolences and sympathies to the families of the deceased police personnel, this violent reply by the police administration is not a legal alternative.

The petitioner also asserts that although his client was had over 60 criminal cases pending against him, he had not been convicted in any one of them as yet. He also pointed to the conduct of the media and other authorities presenting his Client in a criminal light. Ultimately, a person is innocent until proven guilty beyond reasonable doubt!

Critical Analysis

It is often said that one has to bear the punishment for all his wrong deeds in this life itself. But what is often not told is that nobody ever suffers alone for his ill-actions. Sometimes your near and dear ones, your family members also have to surpass those hardships and sufferings which are a result of your own deeds. The same was the case with the family members of Vikas Dubey. According to a Hindustan Times report, his mother Sarla Devi said, “the house demolished by the Kanpur administration was her ancestral house”. She added, “I am saddened by this action. It was our ancestral house. The house was built by my husband and father-in-law and not by my son Vikas Dubey. The administration could have demolished Vikas’s properties, not ours.” She further said that she had not met her husband for four months and her relationship with her son Vikas Dubey had been strained, since the police used to continuously question her and her relatives regarding about Dubey’s criminal acts and whereabouts.

It has been argued in the plea itself that the gangster lived in his ancestral home where beside him, his family also resided. In the Police’s attempt to reach a criminal, his family was caused to suffer undue trouble and hardship. Not only is this conduct on the part of the authorities reckless, but it is strictly against the law, since there is no vicarious liability for a criminal act or offence against the parents or family of the criminal. They cannot be allowed to suffer and pay for the acts of the accused.

The last argument advanced by the Petitioner related to the ‘protection of the crime scene. As per the established norms of investigation, a crime scene must be ‘preserved or prevented from any harm, destruction or contamination’. But in this case, the entire crime scene, ‘instead of being attached and confiscated’ was ‘destroyed by the police themselves’ which definitely creates a doubt as to the intent behind the entire event.

Conclusion

Our society demands and is in a serious need of change in mentality and ideologies. The society should become self-sustainable in not giving shelter to criminals like Vikas Dubey and simultaneously not allow the protectors of the law to remain guilty of such crime as in this case. The present case simply denotes that sometimes, even the ones who were assigned the responsibility to protect the law and maintain order, without any hesitation become the ones to take the laws in their own hands.

The Priyanka Reddy Rape Case, which happened last year can be sought as a perfect example for this proposition. In that case too, a fake encounter was carried out by the Police, and the file was closed marking an end to the criminals. The authorities think that the matter got resolved at a short notice but what is not realized, is that events like these impart a negative image of the Judicial System of the country. In the present case, no matter the crime committed by the gangster was heinous but the response given by the concerned authorities was neither feasible nor acceptable. Therefore, we must urge each one, including the protectors of the law, to have faith in the judicial systemof this country and not to take laws in one’s own hands in the name speedy justice or an act of vengeance.

Author: Mayank Raj Pranav from Gujarat National Law University, Gandhinagar.

Editor: Astha Garg, Junior Editor, Lexlife India