PUBG MOBILE APP BANNED BY GOVERNMENT

PUBG MOBILE, a wildly popular online multiplayer shooting game, is among 118 Chinese apps blocked by the government Wednesday amid tension over fresh Chinese provocation in Ladakh. Ministry of Electronics and Information Technology (MeitY) has banned 118 more Chinese apps including one of the most popular mobile games PUBG Mobile. The official press release stated that all of these apps have been “banned under section 69A of the Information Technology Act”. The government said that it has “decided to block 118 mobile apps since in view of the information available they are engaged in activities which is prejudicial to sovereignty and integrity of India, defence of India, security of the state and public order.”

The apps have been banned in the country on Wednesday. The apps are still available on the Google Play store and Apple App store. It takes some time for such orders to get enforced and hence both PUBG Mobile and PUBG Mobile Lite are still available on the app stores. Users can still be able to download the game before it’s gone from the app store. If PUBG MOBILE does not turn off server access to the region, users will still be able to play the game on their smartphone.

In a measure of PUBG’s huge popularity in India, Prime Minister Narendra Modi, during an event on exam stress last year, had remarked to a mother complaining about her teen: “Yeh PUBG-wala hai kya (Is he a PUBG player?)”.

In June, the government banned 59 mobile apps including Bytedance’s TikTok, Alibaba’s UC Browser and Tencent’s WeChat, also citing security concerns.After the PUBG Mobile ban, many people are worried about their money, which they had invested in the game for buying skins, Royale Pass and more. PUBG Mobile has not provided any statement regarding this. But, most possibly players will have to raise a dispute regarding this on the respective app stores to get their money back.

Black Man Shot by Police in Wisconsin, Protests Follow

Jacob Blake, a 29-year-old Black man was shot in the back by the Wisconsin police in the city of Kenosha. The incident happened on Sunday, while he was walking towards his car and was shot several times in the back. His three young sons witnessed the shooting from the car and were screaming after seeing their father being shot. Video footage of the shooting was shared on social media, which was taken from across the street, it shows the father-of-three leaning into the car. An officer is seen grabbing his shirt after which seven shots were heard. It is unclear what had happened before the video recording begun. He survived the shooting and had a surgery. His father had told the newspapers that his son is paralyzed but the doctors do not know whether its permanent.

At night, groups of protesters defying a dusk-to-dawn curfew gathered outside the courthouse. They confronted law enforcement officers in riot gear outside the county courthouse which was blocks away from where Jacob Blake was shot. They were shouting and tossing water bottles after which they were responded with tear gas and pepper balls.

Despite the curfew, demonstrations erupted on Sunday night, which lead the authorities to close public buildings. Governor Tony Evers have ordered National Guard troops to be deployed in the city to maintain order. He has condemned the incident and “the excessive use of force” and called for a special legislative session next week in order to reconsider police reforms. Protestors marched on the streets from Monday night into Tuesday morning. Many commercial and government buildings and vehicles were set ablaze. The disturbances and protests had slowed down by early morning. According to a protestor, the police used tear gas, rubber bullets and smoke bombs to disperse the crowd. Protestors were marching peacefully but a small group suddenly got violent and started setting fires and breaking glass. The instigators who were seen were reported to be white. After the demonstrations ended, the police and demonstrators had worked together to clean the debris.

The incident occurred three months after the death of George Floyd on May 25. The Black man was pinned to the street under the knee of a white police officer in Minneapolis. The incident sparked protests, against police brutality and racism within the U.S. criminal justice system, across the country and abroad.

Black Lives Matter activists have demanded the arrest of the officers involved in it. Attorney Crump, who also has also represented Floyd’s family, said in a statement, “Blake had been trying to de-escalate a domestic incident when the officers first shot him with a stun gun. As he was walking away to check on his children, police fired their weapons several times into his back at point-blank range.”

Sunday’s shooting had been termed a “domestic incident’ which the police responded to. According to a police statement, they had immediately taken him to the hospital. Authorities have given no further explanation of the details of the incident or what had led to the shooting. The officers who were involved in the shooting have been placed on administrative leave. The Wisconsin Department of Justice said on Monday that the investigation is underway.

Orissa HC Bats For No Tolerance Approach In NDPS Cases

In a recent, remarkable and righteous decision titled Bikash Duria vs State of Orissa in Case No. – BLAPL No. 2464 of 2020 delivered on August 20, 2020, the Orissa High Court minced no words to state in simple, straight and suave language that, “Instances of drug abuse is required to be dealt with a strict ‘hard on Crime’ attitude.” It was made clear that the NDPS cases should always be dealt with stricter approach of ‘No Tolerance’! Justice SK Panigrahi of Orissa High Court who delivered this noteworthy judgment observed that despite strict provisions, the recorded crime rate under the NDPS Act has increased in the country more during the last ten years!

To start with, the ball is set rolling by first and foremost after noting at the outset that, “In view of extraordinary situation arose out of COVID-19 lockdown, the matter is taken up through video conferencing” and then observing in para 1 that, “ ‘Drug addiction is like a curse and until it is broken, its victim will perpetually remain in the shackles of bondage’ aptly put by Oche Otorkpa while articulating the danger of the issue at hand and its ripple effect. The furtive smuggling and trafficking of drugs linked it to a host of social ills, including involvement in crime, destabilization and decline in family relationship, kinship, neighbourhoods etc. More importantly, it has resulted in rampant substance abuse by the youth. The Parliament has passed the NDPS Act with an objective to arrest the menace by making the deterrent effect more stringent so that the guilty is appropriately punished. The said Act seeks to control both the demand and supply of drugs by criminalizing production, trafficking and use. It prohibits the manufacture, production, possession, consumption, sale, purchase, trade, use, import and export of narcotic drugs and psychotropic substances, except for medical or scientific purposes. The Judiciary is also saddled with the responsibility of strictly adhering to the law so that the traffickers of drugs do not go unpunished and the growth boom of trafficking is checked. The trafficking and smuggling have flared sporadically in the recent years transcending the geographical boundaries. The case in hand typifies this alarming trend. The petitioner herein has filed the instant application under Section 439 of Cr.P.C seeking bail in connection with Bolangir Sadar P.S. Case No. 24 of 2020 corresponding to Special G.R. Code No. 10 of 2020 pending in the court of the learned Sessions Judge-cum-Special Judge, Bolangir. The petitioner herein is the accused in connection with alleged commission of offences punishable under Sections 21(c) and 29 of the NDPS Act.”

While dwelling on the facts of the case, it is then stated in para 2 that, “The case of the prosecution presents a distinct case of transportation of drugs under the guise of medicinal products. In fact, the renewed focus on narcotis by the enforcement authorities has resulted in shifting of the focus by the traffickers towards Pharmaceutical drugs like the present one. On 17.01.2020, Jhasketan Bhoi, S.I. of Police, Sadar P.S., Bolangir detained two vehicles bearing Registration Nos. OD-03-P-2651 and OD-26-C-9693 occupied by five persons loaded with huge quantity of cough syrup. Ashok Leyland Pick Up and Mahindra TUV 300 plus were carrying 3840 and 1120 bottles of sealed Eskul Cough Syrup. A total of 5920 bottles containing 1 kg 184 gms of Codeine Phosphate which is more than the commercial quantity were recovered. The occupants of the vehicles failed to produce any invoice, license or authority in support of possession of Cough Syrup bottles. The police further submitted that the accused confessed of not carrying any drug license and the cough syrups were sold to different customers for the purpose of intoxication rather than for therapeutic use which leads to apparent fillip in the drug trade.”

To put things in perspective, it is then pointed out in para 4 while dwelling on the ill effects of drug addiction that, “Drug addiction is a complex illness with far reaching consequences for those who know, work with, and support the drug-addicted individual. Families suffer due to cultural and social factors of drug behavior, including their own understanding of the disease process and the addict’s behavior due to drug abuse; draining of family resources, shrinking from responsibilities, sickness, and dysfunctional relationships, distortion of interpersonal family relationships, violence and death faced or a consequence of drug abuse. The cost of drug abuse is enormous and multifaceted which poses severe threat to the social fabric of the country. Ergo, instances of drug abuse is required to be dealt with a strict ‘hard on Crime’ attitude. Realising the danger of the present menace, the Apex Court has iterated that taking a liberal approach is uncalled for while exercising the power to grant bail in cases under the Narcotics Drugs and Psychotropic Substances Act (NDPS Act). The plea for bail under Section 439 of CrPC should be read with Section 37 of the NDPS Act. Section 37(1)(b)(ii) provides that where the Public Prosecutor opposes the application, the court should grant bail only when it is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.”

To put it succinctly, it is then further pointed out in this same para 4 that, “As iterated in the recent case of State of Kerala and Ors. vs Rajesh and Ors. AIR 2020 SC 721:

“20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Code of Criminal Procedure, but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said Section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these twin conditions is not satisfied, the ban for granting bail operates.

21. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the Accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the Accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the Code of Criminal Procedure, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.””

While citing the relevant case law to underscore the seriousness of the drugs crime, it is then pointed out in para 5 that, “The Supreme Court in the case of Union of India v. Ram Samujh and Ors. 1999 (9) SCC 429 outlines some grave reasons while rejecting a bail application in connection to an offence committed under the NDPS Act:

“7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved.”

The rigour of section 37(1)(b)(ii) of the NDPS Act in regards to the rejection of bail in the matters where the transportation of drugs was of commercial quantity has been provided in plethora of cases by the Supreme Court, especially, in Union of India Vs. Ram Samujh and others (1999) 9 SCC 429 and Union of India Vs. Shri Shiv Shankar Kesari (2007) 7 SCC 798.”

Be it noted, it is then enunciated in para 6 that, “Adverting to the facts involved in the present case, Codeine as previously categorised under Schedule H of Drugs and Cosmetics Act which is considered to be extremely harmful and addictive to the human body. It is a derivative of opium and is considered less potent in terms of analgesia and sedative effects than opium. However, over-the-counter (OTC) opioid counter (OTC) opioid abuse, including codeine, has been a growing problem across India. Although the majority of the abusers use it for recreational purposes, many become dependent on it after having used it as medication for pain or cough. Unfortunately, some people choose to misuse codeine to get feelings of elation and euphoria. Possible long-term consequences of codeine abuse include frequent over sedation, a risk of overdose, chronic constipation, sexual dysfunction, low sex drive, and disrupted menstrual cycles. When someone becomes addicted to the drug, it can have serious consequences on his health, finances and relationships. Codeine abuse has markedly been on rise in the state and significantly large number of commercial quantity cases entering the criminal justice system.”

Briefly stated, the key point that para 7 states is that it points out that, “The law laid down by the4 Hon’ble Apex Court in Mohd. Sahabuddin & Anr Vs. State of Assam 2012 (10) SCALE 77 (supra) has been very categorical about the stricter approach by the Court while granting bail in the cases of substance abuse, whereby recovery of cough syrup containing Codeine Phosphate in bail matter was found to be sufficient ground to reject the bail application.”

Needless to say, it is further pointed out in this same para 7 that, “The said precedence has been followed by several High Courts including Rajasthan High Court in the case of Gavranjeet Singh alias Gavrana vs State Criminal Misc. Bail No. 3790/2017 wherein it was iterated that merely because the recovery is of small quantity, as defined in the Schedule, the benefit of bail cannot be granted to the present petitioners.”

More significantly, it is then acknowledged in para 8 that, “While strict liability provisions of the NDPS Act are considered deterrent, application of these provisions has not resulted in high punishment. Despite strict provisions, the recorded crime rate under the NDPS Act has increased in the country more during the last ten years. It is also equally disturbing to note that there is a disparate sentence in such kind of cases which is quite contrary to the notion of graded punishment prescribed under the law, as similar drug quantities witness varying degree of sentences. The lack of uniform sampling procedures adds to the overall inconsistency in sentencing for drug cases, more especially in pharmaceutical drugs like of cough syrup containing Codeine Phosphate. This kind of ambiguity in the application of the law with regard to most drug abuse cases in the country still persists. As a negatively defined category, intermediate quantity cases receive disparate sentences, due to the wide range of punishments available to a judge together with a lack of sentencing guidelines. This sort of inconsistencies problematises and affects the conviction rate in such crimes. But this case presents a clear picture of recovery of commercial quantity.”

Finally and far most importantly, we then see that without mincing any words it is then observed in para 9 that, “However, on the basis of doctrine of parity, wherein a co-accused, who was charged under similar offences, has been granted bail by the Court, the other co-accused shall also be entitled to bail. The Allahabad High Court in Yunis And Anr. vs. State of U.P. (1999 CriLJ 4094) while relying on Nanha v. State of U.P. (1993 CriLJ 938) held that:

“5. …….. where the case of co-accused is identically similar and another co-accused has been granted bail by the Court, the said co-accused is entitled to be released on bail on account of desirability of consistency and equity. As regards the principle of parity in matter of rejection of bail application, it may be observed that law of parity is a desirable rule.”

In the said case the bail was granted merely for the sake of judicial consistency and propriety. Nonetheless, this court wishes to clarify that the NDPS cases should always be dealt with stricter approach of ‘No Tolerance’. In the instant case, this Court is painstakingly deviating from its “No-tolerance approach” because of the fact that the co-accused who was placed quite worse than the present Petitioner has been enlarged on bail. Thus, the present bail application is allowed solely on the basis of parity.”

In essence, the long and short of this latest, landmark and laudable judgment is that there has to be zero tolerance approach for drug cases. We have seen why in this case the Orissa High Court was compelled to give bail to the petitioner on the ground of parity. Justice SK Panigrahi could not hide his deep anguish while granting bail in this case! There can be no denying or disputing that to effectively check and combat drug related crimes, there has to be zero tolerance for all such crimes and no bail should be given in such cases!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

Right To Property Is A Constitutional As Well As Human Right

In a well-balanced, well-reasoned, well-analysed and well-articulated judgment, a two Judge Bench of Supreme Court comprising of Justice Indu Malhotra and Justice Indira Banerjee in Hari Krishna Mandir Trust vs State of Maharashtra in Civil Appeal No. 6156 of 2013 delivered on August 7, 2020 reiterated that the right to property is still a constitutional and a human right. This was held so while allowing an appeal filed by Hari Krishna Mandir Trust in the matter of a land dispute with the Pune Municipal Corporation. Very rightly so!

To start with, this latest, landmark and laudable judgment authored by Justice Indira Banerjee for herself and Justice Indu Malhotra sets the ball rolling by first and foremost observing in para 1 that, “This appeal is against a judgment and order dated 15.09.2008 passed by a Division Bench of Bombay High Court dismissing Writ Petition No. 904 of 2008 filed by the appellant, challenging an order dated 3.5.2006, whereby the State Government refused to sanction modification of a Scheme under the provisions of Section 91 of the Maharashtra Regional and Town Planning Act, 1996, hereinafter referred to as “the Regional and Town Planning Act”.”

While discussing the facts of the case, it is then enunciated in para 2 that, “One Thorat family was the owner of Plot No. 1092 at Bhamburda in Pune. By a registered deed of conveyance dated 21.12.1956 one Mrs. Krishnabhai Gopal Rao Thorat sold the northern part of the plot admeasuring 4910 sq.m. jointly to Swami Dilip Kumar Roy, one of the most eminent disciples of Sri Aurobindo, and Smt. Indira Devi, daughter disciple of Swami Dilip Kumar Roy. The names of Swami Dilip Kumar Roy and Smt. Indira Devi were duly recorded in the relevant revenue records in 1959.”

Interestingly enough, it is then disclosed in para 3 that, “Swami Dilip Kumar Roy had moved to Pune to propagate the philosophy of Sri Aurobindo and established the Hare Krishna Mandir with his daughter disciple Smt. Indira Devi, on the land purchased from Mrs. Krishnabai Gopal Rao Thorat.”

To be sure, it is then disclosed in para 4 that, “According to the appellants, by an order dated 20.8.1970 of the Pune Municipal Corporation, Plot No. 473 which was originally numbered Survey No. 1092, was divided. Final Plot No. 473B was sub divided into 4 plots being plot Nos. 473 B1 comprising an area of 1025 square meters, 473 B2 comprising an area of 603.00 square meters, 473 B3 comprising an area of 2838 square meters and 473 B4, a private road admeasuring 414.14 square meters.”

Furthermore, it is then revealed in para 5 that, “Plot No. 473 B1 was owned by Mrs. Kanta Nanda, Plot No. 473 B2 by Mr. Premal Malhotra and Plot No. 473 B3 by Swami Dilip Kumar Roy and Smt. Indira Devi. Plot No. 473 B4, which was a vacant plot of land, was shown as an Internal Private Road measuring 444.14 Sq. mtr., in the possession of Swami Dilip Roy and Smt. Indira Devi and the holders of Plot Nos. 473 B1 and 473 B2, namely Mrs. Kanta Nanda and Mr. Premal Malhotra. It is not in dispute that the Pune Municipal Corporation was not mentioned in the order dated 20.8.1970.”

While continuing in the same vein, it is then stated in para 6 that, “On 20.8.1970 the City Survey Officer directed issuance of separate property cards in view of a proposed Development Scheme under the Regional and Town Planning Act which included Final Plot No. 473, and an Arbitrator was appointed. The Arbitrator made an Award dated 16.5.1972 directing that the area and ownership of the plots were to be as per entries in the property register.”

Going ahead, it cannot be overlooked that it is then explicitly mentioned in para 92 that, “From the records of the case, particularly the order dated 20.8.1970 of sub division of plot number 473B and the award of the arbitrator, it is patently clear that the name of Pune Municipal Commissioner was at no point of time reflected as holder of the private road. There is no whisper as to how the road came to be shown in possession of Pune Municipal Commissioner nor of the procedure adopted for effecting changes, if any, in the property records.”

Interestingly enough, it is then further revealed in para 93 that, “On perusal of the documents, there can be no doubt at all that the road in question measuring 444.14 sqm. Never belonged to the Pune Municipal Corporation. In the property records, there was no private road. There were three plots 473B1, B2, B3 and 473B4 shown as vacant land held by the owners of all the three adjacent plots.”

Most significantly, it is very rightly underscored in para 96 that, “The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right as observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Others, (2008) 4 SCC 644 (para 42). In view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law. The appellant trust cannot be deprived of its property save in accordance with law.”

To put things in perspective, the Bench very rightly makes it a point to put across in a forthright manner in para 98 that, “It has been established beyond any iota of doubt that the private road admeasuring 414 sq. meter area had never been acquired by the Pune Municipal Corporation. The right to property includes any proprietary interest hereditary interest in the right of management of a religion endowment, as well as anything acquired by inheritance. However, laudable be the purpose, the Executive cannot deprive a person of his property without specific legal authority, which can be established in a court of law.”

As it turned out, the Bench then makes it clear in para 99 that, “In case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government as held by this Court in Wazir Chand v. State of Himachal Pradesh AIR 1954 SC 415. Admittedly, no compensation has been offered or paid to the appellant Trust. As observed by this Court in K.T. Plantation Private Limited and Anr. V. State of Karnataka (2011) 9 SCC 1 even though the right to claim compensation or the obligation of the State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300A of the Constitution, it is inbuilt in the Article. The State seeking to acquire private property for public purpose cannot say that no compensation shall be paid. The Regional and Town Planning Act also does not contemplate deprivation of a land holder of his land, without compensation. Statutory authorities are bound to pay adequate compensation.”

More crucially, the Bench then also makes it amply clear in para 107 that, “In the facts and circumstances of the instant case, in the light of admissions, on the part of the respondent authorities that the private road measuring 414 sq. was private property never acquired by the Pune Municipal Corporation or the State Government, the respondents had a public duty under Section 91 to appropriately modify the scheme and to show the private road as property of its legitimate owners, as per the property records in existence, and or in the award of the Arbitrator. In our considered opinion, the Bombay High Court erred in law in dismissing the Writ Petition with the observation that the land in question had vested under Section 88 of the Regional and Town Planning Act.”

Equally significant is what is then stated in para 115 and para 116. Para 115 states that, “In the absence of any proceedings for acquisition or for purchase, no land belonging to the Appellant Trust could have vested in the State.” Para 116 further states that, “The High Court also erred in its finding that the modification proposed involved substantial alteration by deletion of a public road and was therefore impermissible. The modification only involved deletion of the name of Pune Municipal Corporation as holder of the private road. The finding that deletion of a public road is a substantial alteration is, for the reasons already discussed above, completely baseless.”

Be it noted, it is then observed in para 117 that, “The appeal is therefore allowed, and the judgment and order under appeal is set aside.”

Finally, it is then observed in the last para 118 that, “In exercise of our power under Article 142 of the Constitution of India to do complete justice between the parties, we direct the Respondent authorities to act in terms of the Award dated 16^th May, 1972 and delete the name of the Pune Municipal Corporation as owner of the private road in the records pertaining to the Scheme and carry out such other consequential alterations as may be necessary under Section 91 of the Regional and Town Planning Act. The appellant trust shall within a fortnight from the date of this order, give an undertaking to the Planning Authority not to obstruct access of adjacent plot owners through the private road in question. The necessary alteration or modification under Section 91, as directed above, shall be carried above, shall be carried out within six weeks from the date of furnishing of the undertaking by the appellant, as directed above.”

In essence, the key takeaway from this latest, landmark and extremely laudable judgment is that the two Judge Bench of Apex Court comprising of Justice Indu Malhotra and Justice Indira Banerjee has once again very firmly reiterated that right to property is a constitutional as well as human right. It is also made clear that the Executive has no right to deprive a person of his/her property without specific legal authority. There can be no denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Not Admit ‘General Category’ Candidate To ‘Sponsored Category’ Vacancy

In a latest, landmark and laudable judgment titled “Nipun Sharma vs Post Graduation Institute of Medical Education and Research, Sector 12 Chandigarh through its Director” in Civil Writ Petition No. 10684 of 2020 (O&M) delivered just recently on August 14, 2020, the Punjab and Haryana High Court unequivocally upheld the Medical College’s righteous decision to not admit the ‘general category’ candidate to ‘sponsored category’ vacancy. The two Judge Bench of Punjab and Harayana High Court comprising of Justice Rajeev Sharma and Justice Harinder Singh Sidhu were hearing this case. Justice Harinder Singh Sidhu authored the judgment for himself and Justice Rajeev Sharma.

To start with, it is first and foremost pointed out in para 1 that, “This writ petition has been filed for issuance of writ, order or direction for reading down condition 7(3)(g) as contained in the Prospectus for Session July, 2020 issued by respondent – PGIMER for admission to DM/M.Ch. Courses, wherein it has been provided that no request for change of category applied for shall be entertained after submission of application to the extent that in case no eligible candidate is available under the ‘Sponsored Category’, then eligible candidate if available, under ‘General Category’ be considered and granted admission to the course of Master of Surgery (M.Ch.) (Plastic Surgery) on fulfilling the requisite eligibility conditions.”

What follows next is stated in para 2 that, “Further prayer has been made for setting aside the action of respondent in not considering the candidature of petitioner for said course against vacant seat available under ‘Sponsored Category’ in view of fact that petitioner had applied for direct category.”

To put it succinctly, para 3 then states that, “It is also prayed that the NOC/Sponsorship Certificate (Annexure-P6) issued in favour of petitioner by Department of Health and Family Welfare, Himachal Pradesh be accepted.”

In hindsight, while dwelling on the petitioner’s past academic background, it is then put forth in para 4 that, “The petitioner secured admission in MBBS Course at Indira Gandhi Medical College and Hospital at Shimla (2006-2012) and served in rural area after appointment in 2013 for a total period of 2 ½ years. He was selected for Post Graduate Course in General Surgery in 2017 as a sponsored candidate (2017 to 2019) in PGIMER, Chandigarh and secured 2^nd rank in Post Graduation final examination. After completing his Post Graduation successfully with the respondent institution he joined back as a Medical Officer in Deendayal Upadhyay Zonal Hospital, Shimla. Thereafter, the petitioner with an aim to study further and super specialize in the field of Plastic Surgery decided to get admission in the Master of Surgery (M.Ch.) (Plastic Surgery).”

To be sure, it is then envisaged in para 5 that, “As per the Prospectus for the Session July 2020 in the PGIMER for securing admission in Post Graduation or Super Speciality Course i.e. M.Ch., two categories have been provided i.e. (a) General category and (b) Sponsored Category. In ‘General Category’, a candidate can apply directly i.e. without seeking permission of any State authority directly whereas in the ‘Sponsored Category’ only that candidate can apply, who is sponsored by the State Government with which he or she is employed. The sponsorship so made by the State Government is also in the nature of a No Objection Certificate whereby a candidate is authorized by the State Government to do a Super Specialty Course with an undertaking to serve the State Government for a specified period.”

Coming to the chief grievance of the petitioner, it is henceforth stated in para 11 that, “Thus the grievance of the petitioner is that despite there being no other eligible candidate available till date, the candidature of the petitioner, who applied under the ‘General Category’, is not being considered under the ‘Sponsored Category’. In case, the respondent-institution accepts the candidature of the petitioner then not only the petitioner would secure admission in the super specialty course of M.Ch. (Plastic Surgery) but the vacant seat will also get utilized and would not be left vacant.”

As a corollary, it is then further stated in para 12 that, “It was also pleaded by the petitioner that two candidates Dr. Lucky Kumar and Dr. Ashok Garg, who hail from Himachal Pradesh had applied for admission in M.Ch. in Cardiology and Neonatology respectively with respondent. Those candidate also secured their NOC cum Sponsorship certificate after the declaration of the result. They have been granted admission and their NOC cum Sponsorship certificate has been duly accepted. Thus the petitioner has been discriminated against.”

What cannot be left unnoticed is what is then stated in para 14 that, “It has been stated that as per clause 7 (3)(g) of the Prospectus:

“No request for a change of category applied for shall be entertained after the submission of the application”.

Since, Petitioner applied under ‘General Category’, therefore his request for grant of admission on the vacant seat under ‘Sponsored Category’ cannot be considered.”

Having said this, it is then observed in para 20 that, “The examination for admission to the M.Ch. Plastic surgery course was held on 21.06.2020. The result was declared on 26.05.2020. On 30.06.2020 the institute vide notice dated 30.06.2020 uploaded a tentative list of selected candidates wherein petitioner was shown at Waiting list No. 1 in the Direct Category. The petitioner was given the NOC/Sponsorship Certificate on 08.07.2020. Clearly as per condition 7(3)(g) of the Prospectus the request for change of category from ‘General’ to ‘Sponsored’ could not be entertained at a stage when even the result have been declared in view of Clause 7(3)(g) of the Prospectus.”

While adding further weight to its ruling, the Bench then observes in para 21 that, “It has been consistently held in different Full Bench decisions of this Court that prospectus has a force of law and is to be strictly followed. Reference can be made to Amardeep Singh Sahota v. State of Punjab 1993 (4) S.C.T. 328, Raj Singh v. Maharishi Dayanand University 1994 (2) S.C.T. 766, Sachin Gaur v. Punjabi University 1996 (1) S.C.T. 837, Rahul Prabhakar v. Punjab Technical University, Jalandhar 1997 (3) S.C.T. 526, Indu Gupta v. Director of Sports, Punjab 1999 (4) S.C.T. 113 and Rupinder Singh v. The Punjab State Board of Technical Education & Industrial Training, Chandigarh 2001 (2) S.C.T. 726.”

To put things in perspective, it is then noted in para 23 that, “This being the settled legal position the respondent-institution is right in strictly adhering to condition 7(3)(g) of the Prospectus and not entertaining the request of the petitioner for change of category after the last date of application and granting him admission against the vacant seat in the sponsored category.”

As it ostensibly turned out, the Bench then also clearly and convincingly holds in para 24 that, “The contention of the Ld. Counsel that provision 7(3)(g) be read down to the extent that in case no eligible candidate is available under the ‘Sponsored Category’, then eligible candidate, if available, under ‘General Category’ be considered and granted admission to the course of Master of Surgery (M.Ch.) (Plastic Surgery) on fulfilling the requisite eligible conditions also is not tenable.”

No wonder, it is then rightly held in para 27 that, “The respondent-institution in its reply has given valid reasons as to why such a provision has been incorporated and any deviation from it would create an untenable and uncertain situation.” Finally, it is then held in the last para 28 that, “Accordingly, there is no merit in the petition and the same is dismissed.”

In conclusion, the two Judge Bench of the Punjab and Haryana High Court comprising of Justice Rajeev Sharma and Justice Harinder Singh Sidhu in this notable judgment has clearly and convincingly for cogent reasons explained above has rightly rejected the contention of the petitioner! The arguments forwarded by the petitioner were found to be not tenable by the Chandigarh High Court. The Court also made it amply clear that the respondent-institution is right in strictly adhering to condition 7(3)(g) of the Prospectus and not entertaining the request of the petitioner for change of category after the last date of application and granting him admission against the vacant seat in the sponsored category! Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Daughters Have Coparcenary Rights Even If Their Father Was Not Alive

In a most significant judgment with far reaching implications that will immensely benefit Hindu daughters, the Apex Court in Vineeta Sharma vs Rakesh Sharma & Ors. in Civil Appeal No. Diary No. 32601 of 2018 along with some other Special Leave Petition (SLP) just recently on August 11, 2020 has held in no uncertain terms that a daughter will have a share after the Hindu Succession (Amendment) Act, 2005, irrespective of whether her father was alive or not at the time of amendment. This is certainly a significant step towards the attainment of gender equality in our country for which the Apex Court Bench which decided this extremely landmark and laudable judgment deserves full credit! Till this laudable judgment was delivered we saw how despite several amendments to the Hindu Succession Act, 1956 there was none such provision that gave unconditional rights to women pertaining to her father’s property!

To start with, Justice Arun Mishra who authored this notable judgment for himself and Justice Abdul Nazeer and Justice MR Shah first and foremost set the ball rolling by observing in para 1 that, “The question concerning the interpretation of section 6 of the Hindu Succession Act, 1956 (in short, ‘the Act of 1956’) as amended by Hindu Succession (Amendment) Act, 2005 (in short, ‘the Act of 2005’) has been referred to a larger Bench in view of the conflicting verdicts rendered in two Division Bench judgments of this Court in Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343. In other connected matters, the question involved is similar; as such, they have also been referred for hearing along.”

Be it noted, it is then enunciated in para 116 that, “The intendment of amended Section 6 is to ensure that daughters are not deprived of their rights of obtaining share on becoming coparcener and claiming a partition of the coparcenary property by setting up the frivolous defence of oral partition and/or recorded in the unregistered memorandum of partition. The Court has to keep in mind the possibility that a plea of oral partition may be set up, fraudulently or in collusion, or based on unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognized under Section 6(5).”

What’s more, it is then observed in para 126 that, “The protection of rights of daughters as coparcener is envisaged in the substituted Section 6 of the Act of 1956 recognises the partition brought about by a decree of a court or effected by a registered instrument. The partition so effected before 20.12.2004 is saved.”

More significantly, the Bench then minces no words to state in suave, simple and straight language in para 127 while highlighting the dire need to protect daughter’s interests in property that, “A special definition of partition has been carved out in the explanation. The intendment of the provisions is not to jeopardize the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of section 6, the intendment of legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the objects of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.”

Most significantly, the Bench then cogently, convincingly and clearly holds in para 129 that, “Resultantly, we answer the reference as under:

(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and abilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20^th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been effected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.”

No less significant is what is then stated finally in the last para 130 that, “We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the pending matters be decided, as far as possible, within six months. In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision.”

No doubt, this latest, landmark and laudable judgment by a three Judge Bench of the Apex Court must be applauded, admired and appreciated in no uncertain terms as it places daughter on an equal footing with son in property matters which is a revolutionary move that will ensure that a daughter’s rights are not smothered under any circumstances by anyone as they like as per their own whims and fancies! But what is even more crucial is that society’s patriarchal mindset favouring only son must also change at the earliest and simultaneously the litigation processes in courts must be simplified, made inexpensive so that the poor women too can get their due and time-bound so that women does not suffer the ordeal of running from pillar to post first in lower courts, then in higher courts and then ultimately in the highest court! More awareness programme must be launched by Centre and State Governments to ensure that women are made aware of their legal rights as have been marked by the Apex Court in this landmark judgment! Only then can daughters gain immensely by this extremely laudable and landmark judgment which they must as no society can progress where women remains backwards and stands deprived of her basic legal rights!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Not Open To Trial Courts Awarding Life Imprisonment

It is quite refreshing and quite reassuring to see that in a recent, remarkable and righteous decision titled “Savitri vs. State of Haryana and others” in Case No. – CRWP-5238-2020 (O&M) delivered on August 19, 2020, a two Judge Bench of the Punjab and Haryana High Court comprising of Justice Dr S Muralidhar and Justice Avneesh Jhingan has reaffirmed in no uncertain terms that the trial courts have no power to order a life sentence to run till natural life or to hold that no remission will be granted. Known for his brilliant, bold and balanced judgments even while as Judge of Delhi High Court – Justice Dr S Muralidhar who authored and headed this notable judgment for himself and Justice Avneesh Jhingan reiterated that this power is solely with the High Court and Supreme Court only in view of the judgment delivered in the Constitution Bench of the Apex Court in the V Sriharan case. Very rightly so!

To start with, this notable judgment sets the ball rolling by first and foremost observing in para 1 that, “This is a petition challenging the order dated 5^th June, 2020 of the Divisional Commissioner, Hissar, (‘Divisional Commissioner’) rejecting the Petitioner’s application for temporary release/parole, on the grounds that the trial Court i.e. the Court of the Additional Sessions Judge, Hisar, has by an order dated 16^th October 2018 awarded her a sentence of imprisonment for life i.e. whole of her natural life, without any remission, consequent to her conviction for the offences under Sections 302, 343 and 120-B of the Indian Penal Code in FIR No. 429 of 2014 registered at Police Station Barwala.”

On the one hand, para 2 states that, “It has been argued by Mr. Arjun Sheoran, learned counsel for the Petitioner, that the reasons given in the impugned order dated 5^th June, 2020 of the Divisional Commissioner are contrary to the law laid down by the Supreme Court in Union of India v. V. Sriharan @ Murugan (2016) 1 SCC 1. In other words, he submitted that the trial Court could not have directed that the Petitioner would not be entitled to any remission and further that her request for temporary release/parole could not have been refused on that ground. He pointed out that the Petitioner had recently lost her husband and her two sons had abandoned her. He referred to the photographs enclosed with the petition to show that the Petitioner’s house needed urgent repairs for which reason she had sought parole for four weeks.”

As opposed to this, it is then stated in para 3 that, “On the other hand, Mr. Ankur Mittal, learned Additional Advocate General, Haryana, to begin with, pointed out that the Petitioner sought parole for a period of four weeks on the ground that her house needed repairs and this request was referable to Section 3 (1) (d) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 (‘Act’) read with Rule 8 (iii) of the Haryana Good Conduct Prisoners (Temporary Release), Rules, 2007 (‘Rules’). He further pointed out that in terms of Rule 4 of the Rules, the Petitioner shall be entitled to apply for parole only after completing one year of imprisonment after conviction and has earned her first annual good conduct remission (AGCR) under the Act. According to Mr. Mittal since the sentence awarded by the trial Court specifically states that the Petitioner should serve life sentence for her entire natural life, without remission, the question of her being eligible for AGCR would not arise and consequently, she would be ineligible to be considered for parole. In this context he referred to a recent judgment dated 3^rd July, 2020 of a learned Single Judge of the High Court of Delhi in Sanjay Kumar Valmiki v. State [W.P. (Crl.) 2049 and 682 of 2019], and submitted that the Divisional Commissioner cannot be stated to have committed any error as long as the order on sentence passed by the trial Court, and which is under appeal before this Court, stood.”

As we see, para 4 then reveals that, “On the last date of hearing, Mr. Sheoran, learned counsel for the Petitioner had sought time to place on record copy of an order passed by the Superintendent, Central Jail, Ambala granting parole to one of the co-convicts in a connected FIR.”

Of course, it is then brought out in para 5 that, “The Petitioner has, along with an application CRM-W-731-2020, placed on record a copy of an order dated 7^th January, 2020 passed by Superintendent, Central Jail, Ambala granting parole/temporary release to co-convict Pawan in a connected FIR No. 430 dated 19^th November, 2020, registered at Police Station, Barwala, Hisar. It has been pointed out that Pawan too had been sentenced to undergo rigorous imprisonment for life without remission till natural death and yet, in his case, not only was parole granted, but in fact, now stands extended as a result of the orders of the High Powered Committee (‘HPC’).”

Be it noted, para 6 then states that, “The above submissions have been considered. To begin with, the applicable statutory provision and the Rules may be referred to. Sections 3 (1) (d) and 10 (2) (d) of the Act which are relevant for the present purpose read as under:

“3. Temporary release of prisoners on certain grounds. – (1) The State Government may, in consultation with the District Magistrate or any other officer appointed in this behalf, by notification in the Official Gazette and subject to such conditions and in such manner as may be prescribed, release temporarily for a period specified in sub-section (2), any prisoner, if the State Government is satisfied that –

……………

(d) it is desirable to do so for any other sufficient cause.”

“10. Power to make rules. The State Government may, by notification make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for –

…………….

(d) the conditions on which and the manner in which prisoners may be released temporarily under this Act.”

7. Rules 4 and 8 (iii) of the Rules, which are also relevant, read thus:

“4. Eligibility. Section 10(2)(d). – (1) A prisoner shall be entitled to apply for parole only after he has completed one year of his imprisonment after conviction and has earned his first annual good conduct remission under the Act.”

“8. Sufficient cause. Sections 3(1)(d) and 10(2)(d). – Under Section 3(1)(d) “sufficient cause” may be considered from amongst the following reasons, namely:-

………………

(iii) house repairs/new construction of house owned by the convict parole for house repair shall be granted only once, in three years;””

To put things in perspective, para 8 then envisages that, “It is thus seen that in terms of Rule 4 and 8 (iii) of the Rules read with Section 3 (1) (d) of the Act the earning of the first AGCR, apart from completing one year of imprisonment post conviction, is a must. It is also correct that the sentence awarded to the Petitioner by the trial Court in the instant case is one of “rigorous imprisonment for life, without any remission.” She has been, along with her co-convicts, “sentenced to imprisonment for life of their natural death (sic)” meaning thereby that she should remain in prison for the rest of her natural life. The Divisional Commissioner who passed the impugned order rejecting the Petitioner’s request for parole, was, therefore, constrained to apply Rule 4 in light of the sentence awarded by the trial Court.”

As it turned out, the Bench then points out in para 9 that, “The question whether the trial Court could have passed such a sentence would undoubtedly be one of the questions that would arise for consideration in the Petitioner’s criminal appeal against her conviction and sentence which is pending before this Court. However, it is unlikely that the said appeal, which would have to be heard with the connected appeals of her co-convicts, can be taken up for hearing in the near future. Further, this would mean that till such question is decided, the authorities would be precluded from considering any of her applications for release on parole. It would be unreasonable, in the circumstances, for the examination of this question to be postponed to the hearing of the appeal, particularly since, as will be seen hereafter, the legal position in this regard is clear.”

More significantly, the Bench then makes it amply clear in para 10 that, “The legal position with regard to the power of the trial Courts to award sentences with riders has been made explicit in the Constitution Bench judgment of the Supreme Court in V. Sriharan (supra) in paras 103 to 105, in the following words:

“103. That apart, in most of such cases where death penalty or life imprisonment is the punishment imposed by the trial Court and confirmed by the Division Bench of the High Court, the concerned convict will get an opportunity to get such verdict tested by filing further appeal by way of Special Leave to this Court. By way of abundant caution and as per the prescribed law of the Code and the criminal jurisprudence, we can assert that after the initial finding of guilt of such specified grave offences and the imposition of penalty either death or life imprisonment when comes under the scrutiny of the Division Bench of the High Court, it is only the High Court which derives the power under the Penal Code, which prescribes the capital and alternate punishment, to alter the said punishment with one either for the entirety of the convict’s life or for any specific period of more than 14 years, say 20, 30 or so on depending upon the gravity of the crime committed and the exercise of judicial conscience befitting such offence found proved to have been committed.

104. We, therefore, reiterate that, the power derived from the Penal Code for any modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High Court and in the event of further appeal only by the Supreme Court and not by any other Court in this country. To put it differently, the power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict’s life as an alternate to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior Court.

105. Viewed in that respect, we state that the ratio laid down in Swamy Shraddananda [(2008) 13 SCC 767] that a special category of sentence; instead of Death; for a term exceeding 14 years and put that category beyond application of remission is well founded and we answer the said question in the affirmative. We are, therefore, not in agreement with the opinion expressed by this Court in Sangeet and Anr. v. State of Haryana, 2013 (2) SCC 452 that the deprival of remission power of the Appropriate Government by awarding sentences of 20 or 25 years or without any remission as not permissible is not in consonance with the law and we specifically overrule the same.” (emphasis supplied).”

Most significantly, it is then laid down in para 11 that, “Thus, after the judgment of the Constitution Bench of the Supreme Court in V. Sriharan (supra), it is not open to a court inferior to the High Court and Supreme Court, while awarding a sentence of life imprisonment under the Indian Penal Code to further provide for any specific term of incarceration, or till the end of a convict’s life, or to direct that there shall be no remission, as an alternate to the death penalty. That power is available only with the High Courts and the Supreme Court. Consequently, the trial Court, in the instant case, while awarding the Petitioner the sentence of rigorous imprisonment for life could not have added the riders that it should be for the rest of her natural life or that she would not be entitled to any remission.”

To state the obvious, it is then stated in para 14 that, “Therefore, in terms of the law explained by the Constitution Bench of the Supreme Court in V. Sriharan (supra), the trial Court in its order dated 16^th October 2018 awarding the sentence to the Petitioner of rigorous imprisonment for life was in error in adding the rider that it would be for the remainder of her natural life and without any remission.”

Furthermore, it is then enunciated in para 15 that, “With this being the clear legal position, the impugned order dated 5^th June 2020 passed by the Divisional Commissioner, Hisar rejecting the Petitioner’s application for parole on the above grounds is legally unsustainable and is hereby, set aside. The Petitioner’s application for parole is remitted to the Divisional Commissioner, Hisar to consider afresh the Petitioner’s application for parole in accordance with law. The further ground pointed out by the Petitioner that Pawan, a convict in the related FIR, has been granted parole will be taken note of by the Divisional Commissioner while passing an order afresh on the Petitioner’s application for parole. The fresh order be passed not later than 31^st August, 2020 and communicated to the Petitioner forthwith and in any event not later than 2^nd September 2020. If aggrieved by such order, it will be open to the Petitioner to seek appropriate remedies available to her in accordance with law. The petition is disposed of in the above terms.”

Before parting, to cap it all, it is then finally held in the last para 16 that, “The Court is informed that notwithstanding the clear legal position explained in V. Sriharan (supra), the trial Courts have been adding riders to orders on sentence passed by them similar to what the trial Court did in this case. Accordingly, the Court directs that a soft copy of this judgment of the Constitution Bench of the Supreme Court in V. Sriharan (supra) be circulated by the Chandigarh Judicial Academy through email to all the judicial officers as well as the Jail authorities in the State of Punjab and Haryana and the Union Territory of Chandigarh.”

To conclude, the sum and substance of this latest, landmark and extremely laudable judgment is that the trial courts have no power to order a life sentence to run till natural life or to hold that no remission will be granted. In other words, the two Judges Bench of the Punjab and Haryana High Court comprising of Justice Dr S Muralidhar and Justice Avneesh Jhingan have made it explicitly clear that it is just not open to trial courts awarding life imprisonment to further specify the term of incarceration as remainder of natural life or to rule out remission completely! Very rightly so! There can be no denying it!

Sanjeev Sirohi

ATTORNEY GENERAL OF INDIA

He is the highest law officer in the country. The constitution, ARTICLE-76 provides for his office provisions. He is appointed by the president and must be qualified to be appointed as the judge of supreme court. The term of office is not fixed by the constitution nor it contain the procedure and grounds for his removal. He holds office during the pleasure of president. He is free to resign anytime from his office by addressing the letter to the president. He receives the salary as decided by president.

DUTIES- To give legal advice to government of India on legal matters, to discharge functions conferred on him by constitution, to appear on behalf of government in all cases in supreme and high court in which government is concerned.

He has the right of audience in all courts in territory of India. He has the right to speak and take part in proceedings of both the houses of parliament without entitled to vote.

He is no full time counsel of government nor he fall in category of government servant and is not allowed to practice any private legal practice against government.

HE is not advice to hold any brief in cases in which he is called to advise for government of India. He should not defend accused person in criminal proceedings without government approval. He should not accept appointment as a director in any company without permission of government.

He holds a prestigious office and the powers should be performed accordingly.

REGISTRATION OF A COMPANY

Incorporation of a Company-

Section 3 provides that a company may be formed for any lawful purpose by:

Seven or more individuals, if the corporation to be established is a public company;
Two or more individuals, where the company to be established is a private company;
Only one individual, there where the company to be established is a one-person company, that is somehow, a private company,

By subscribing to a document of their name or name and by following the registration requirements of this Act. The Memorandum of One Person Company shall signify the name of the other person, with his previous written consent, who shall become a member of the pay Company in the event of the death of the subscriber or his inability to contract. The written consent of such other person shall also be filed with along with its memorandum and articles.

Procedural Aspects:

(a) Application for availability of name of company.

According to Section 4, the name stated in the memorandum of association-

shall not be identical with or resemble too nearly to the name of an existing company registered under this Act or any previous company law; or
shall not be such that its use by the company will constitute an offence under any law for the time being in force; or
shall not be such that its use by the company is undesirable in the opinion of the Central Government.

Therefore, Section 4 further provides that a person may select six names in order of preference and make an application in the prescribed form accompanied by the prescribed fee to the Registrar for the reservation of name set out in the application as the name of the proposed company. On receipt of the application, the Registrar may reserve the name for a period of 60 days from the date of the application. If the Registrar finds the name undesirable, it shall inform the applicant within three days of receipt of application. He may ask for any other information in this matter or ask for resubmission of the application with new name.

(b) Preparation of memorandum and articles.

Memorandum of Association is charter of a company. It, inter alia, defines the area with which the company can operate. According to Section 4(1), memorandum shall state the name, registered notice, objects, liability of members, share capital in case of a company having share capital. In case of One Person Company, the name of the person who, in the event of death of the subscriber, shall become the member of the company be stated.

Section 5(1) provides that the articles of a company shall contain regulations for management of the company.

According to Section 7(1) (a) read with Rule 13 of the Companies (Incorporation) Rules, 2014, memorandum and articles must be-signed at least seven subscribers in case of public company, two in case of private company and one in case of One Person Company. Each subscriber should give his address, description and occupation, etc., and number of shares subscribed by them. The subscribers must sign these documents in the presence of at least one witness who shall verify the signature of the subscribers.

(c) Filing of documents with the Registrar of Companies.

The following documents, as per Section 7(1), shall be filed with the Registrar within whose jurisdiction the registered office of a company is proposed to be situated.

(i)Memorandum and articles of the company duly signed by all the subscribers to the memorandum in the prescribed manner. [Section 7(1(a)]

(ii) A declaration that all the requirements of the Companies Act and the rules thereunder have been complied with. Such a declaration has to be signed by an advocate, or any proposed director manager/secretary of the company or by a company secretary or cost accountant or chartered accountant who is in whole-time practice in India.

(iii) An affidavit from the subscribers to the memorandum and from the first directors (if any) to the effect that they are not convicted of any offence in connection with promoting, forming or managing a company or have not been found guilty of any fraud or misfeasance, etc., under the 2013 Act or any previous company law during the last five years along with the complete details of name, address of the company, particulars of every subscriber and the persons named as first directors (including nationality, director identification number, proof of identity).[Section 7(1) (c)]

(iv) The address for communication till the registered office is established. As per Section 12, a company is required to have a registered office within 15 days of incorporation. [Section 7(1) (d)]

(v) The particulars of name, including surname or family name, residential address, etc. [Section 7(1) (e)]

(vi) The particulars of the persons named in the articles as the first directors of the company, their names, including surnames or family names, the Director Identification Number, residential address and other identity proofs. [Section 7(1) (f)]

(vii) The particulars of the interests of the persons mentioned in the articles as the first directors of the company in other firms or bodies corporate along with their consent to act as directors of the company in such form and manner as may be prescribed. [Section 7(1) (g)]

Issue of Certificate of Incorporation by Registrar-

Section 7(2) states that the Registrar on the basis of the documents information filed under Section 7(1) shall register all the documents information referred to in Section 7(1) in the register and issue a certificate of incorporation in the recommended form to the effect that the projected company is incorporated under this Act.

Allotment of corporate identity member: Section 7(3) states that on and from the date mentioned in the certificate of incorporation issued und Section 7(2), the Registrar shall allot to the company a corporate ident number, which shall be distinct identity for the company and which shall also be included in the certificate.

The incorporation records to be preserved: Section 7(4) provides that the corporation shall retain and preserve at its registered office copies of all records and information as originally filed pursuant to Section 7(1) until such time the company is dissolved pursuant to this Act.

Registration and its effect (Section 9): Since the date of registration attributed to in the certificate of registration, all subscribers to the memorandum as well as all other individuals who may, since time to time, become members of the organization shall be the corporate body in the name set out in the memorandum.

It is capable of exercising all the functions of an incorporated company under this Act.

It has perpetual succession and a common seal.

It has power to acquire, hold and dispose of property, both movable and immovable, tangible and intangible.

It is capable of entering into contracts. It can sue and be sued, by the said name.

Conclusive evidence-

Section 35 of the Companies Act, 1956 provided that a certificate of incorporation issued by the Registrar in respect of any association shall provide definite proof that all the provisions of the Act have been satisfied with in respect of registration and the matters preceding and incidental thereto, and that the association is a company authorized to be incorporated and legally registered under the Act.

It means that once the certificate has been issued the existence of the company is not allowed to be questioned on the ground that either certain requirements of the Act have not been complied there was any other discrepancy in the process of formation of the company. For example, in Moosa v. Ibrahim¹, the validity of the incorporation was not allowed to be questioned. In this case the memorandum of association was signed by two adult persons and by a guardian of the other five members, who were minors at that time, the guardian making separate signatures for each of the minors. The Registrar, then registered the Company and issued a certificate of incorporation. Likewise in Peel’s Case (1867) it was held that once the incorporation is given nothing is to be inquired into as to the regularity of the prior proceedings. In this case after signature and before registration a proposed memorandum of association had been materially altered without the authority of the subscribers.

In T.V. Krishna v. Andra Prabha (P) Ltd.², the position was summarised by Chandra Reddy, C.J., as follows: “Thus the position is firmly established that if a company is born, the only method to get it extinguished is not by assailing its incorporation, but by resorting to the provisions of enactments, which provide for the winding up of the companies.” It was held in this case that even if some of the objects were illegal, the legal persona of the company could not have been extinguished by cancelling the certificate. Also in such a situation, the certificate is definitive and the solution will be to terminate the company. In Bowman v. Secular Society Ltd.³, it was held that if a company having illegal objects has been registered, the illegal objects do not become legal by the issue of the certificate of incorporation.

It may be noted that there is no section in the Companies Act, 2013 pertaining to conclusiveness of the certificate of incorporation. Section 7(7) of The Companies Act, 2013 provides that any person may challenge the validity of certificate of incorporation before the Tribunal, if the company is formed by furnishing false or incorrect information or suppressing any material fact. Punishment for furnishing false or incorrect information or suppressing any material fact.

Punishment for furnishing false or incorrect information at time of incorporation-

The Companies Act, 2013 prescribes severe punishment for furnishing false or incorrect information at the time of incorporation. These are as follows:

If a person provides any inaccurate or misleading information or suppresses any material information that he or she is aware of in any of the documents submitted with the Registrar in connection with the registration of a company, he or she shall be liable for action under Section 447. [Section 7(5) of the Rules].

Where a company has been incorporated by offering misleading or inaccurate representation or by suppressing any material fact or data in any of the documents or records submitted or rendered for the incorporation of that company or by malicious action, the promoters shall each be liable for the acts referred to in Section 447 as the first directors. [Section 7(6)].

Conclusion:

After incorporation a company:

It enjoys advantages such as; independent corporate existence, limited liability, separate property (owning, enjoying and disposing property in its own name), perpetual succession (no allotted span of life), capable of enforcing its legal rights or be sued for breach of legal duties, enabling transferability of shares, separation of management and ownership and lastly, allowance for raising capital from public.

It suffers disadvantages such as; formality and complications (incorporation is time consuming, expensive and formal process), loss of privacy, corporate governance, and lifting the corporate veil.

1 ILR (1930) 40 Cal. 1 PC

2 AIR (1960) AP 123

3 AIR (1917) AC 406

CASE SUMMARY: M/S. Century Textiles Industries V. Deepak Jain & ANR on 20 March, 2009

DETAILS:

Case Name: M/S. Century Textiles Industries … vs Deepak Jain &ANR

Citation: [2009] INSC 573 (20^th March 2009)

Court of jurisdiction: The Supreme Court of India

Year of the case: 20^th March 2009

Appellant: M/S. Century Textiles Industries

Respondent: Deepak Jain

Bench/ Judges: D.K Jain, R.M Lodha

SUMMARY:

Challenge in this appeal is to the judgment and order dated 18th November, 2004 rendered by a learned Single Judge of the High Court of Madhya Pradesh at Jabalpur, in Civil Revision No. 364 of 2004 filed under Section 115 of the Code of Civil Procedure, 1908 (for short `the CPC’). By the impugned judgment, the learned Judge allowing the Revision Petition has set aside the order passed by the Second Additional District Judge, Jabalpur in Execution Case No. 2 of 2004, whereby and whereunder he had held that the objector Deepak Jain and D.K. Jain are the same person and proprietor of M/s Surya Trading Company–the judgment debtor.

Shorn of unnecessary details, the case of the appellant, in brief, is that it is engaged in the business of manufacture of cement. It required the services of Clearing and Forwarding Agents. Respondent No.1, namely, Deepak Jain applied for the said agency in the name of a proprietary concern `M/s. Deepak Jain’ at 743, Sarafa Bazaar. In the application, he gave the reference of his father Shri S.C. Jain, Advocate, 744, Sarafa Bazaar. Both the properties, namely, 743 and 744 at Sarafa Bazaar are stated to be ancestral properties of Deepak Jain/D.K. Jain. The said respondent operated a Bank Account No. 454 with Punjab & Sind Bank for his dealings. He also had another account No. 453 with the same branch of the bank operated under the name and style of “M/s Surya Trading Company, Proprietor, D.K. Jain”, respondent No.2 in this appeal.

According to the appellant, though the agency was in the name of a proprietary concern, styled as M/s. Deepak Jain, but after sometime, Deepak Jain started dealing with them as “M/s. Surya Trading Company, Proprietor, D.K. Jain” as well. He corresponded from both the addresses, namely, 743 and 744, Sarafa Bazaar. In discharge of his liability towards the appellant, the first respondent issued a Cheque in the sum of Rs.10,68,335/- dated 2nd August, 1992 from Account No. 453 of “Surya Trading Company” as D.K. Jain. However, the Cheque was returned unpaid. The appellant filed a Civil Suit for recovery of the said amount against “M/s Surya Trading Company, Proprietor D.K. Jain”. The Suit was decreed ex- parte on 10th March, 1997. On summons being issued by the Executing Court, Deepak Jain appeared before the Court and filed objections, pleading that he was neither D.K. Jain nor proprietor of M/s. Surya Trading Company and not even a resident of 744, Sarafa Bazaar. Accepting the objections preferred by Deepak Jain, by order dated 14th August, 2001, the Executing Court held that the decree could be executed only against D.K. Jain and not against Deepak Jain. Aggrieved by the order passed by the executing Court, the appellant filed a Civil Revision before the High Court. Vide order dated 21st August, 2002, the High Court disposed of the Revision Petition with the following direction: “After hearing the learned counsel for the petitioner, this Revision is disposed of with the direction that in case petitioner files an appropriate application disclosing and specifying the identity of the proprietor, an enquiry thereon shall be held by the Executing Court and the same shall be decided in accordance with law.”

None of the parties questioned the said order and thus it attained finality. On 2nd December, 2002, the appellant moved an application before the Executing Court disclosing and specifying the identity of the judgment debtor. The first respondent–Deepak Jain contested the said application by stating that he was not the proprietor of M/s. Surya Trading Company and that he had no connection with 744 Sarafa Bazaar as well. The Executing Court framed the following issues:

1. Whether the objector Deepak Jain, Advocate S/O Late Shri Sumer Chandra, Advocate, R/O 744, Saraffa Bazar, Kamaina Road, Jabalpur is the proprietor of M/s. Surya Trading Company?

2. Relief and expenses.

Parties led evidence on the first issue. The Executing Court, upon analysis of the evidence so led, came to the conclusion that Deepak Jain was the proprietor of M/s. Surya Trading Company and Deepak Jain and D.K. Jain are the same person. For the sake of ready reference, the relevant portion of the order passed by the Executing Court is extracted below:

“It appears from the perusal of the letter, Exh. P-4 that above letter has been written on the Letter Head in the name of Deepak Jain, 743, Saraffa Bazar, Kamania Gate. The letter has been addressed to M/s. Manikgarh Cement, Nagpur. The contents of the letter, related to sending cement and in place of account, M/s. Surya Trading Company has been written. It has not been clarified by the Objector that when he has no concern with M/s. Surya Trading Company, then on what basis name of M/s. Surya Trading Company has been mentioned on the letter, Exh. P-4 dated 2.11.1990 Thus, it is evident from the letter verified by the Objector himself that business of M/s. Surya Trading Company is being managed by Deepak Jain himself. Because as per statement of Objector as per letter, Exh. P-4, it is his Firm and writer of this letter on the Letter Head, is no one other than Deepak Jain himself. In this letter, demand has been given for M/s. Surya Trading Company. Thus, it is evident from the letter, Exh. P-4 that owner of M/s. Deepak Jain and proprietor of M/s. Surya Trading Company Shri D.K. Jain are the same person.”

Obviously, being aggrieved by the said order, Deepak Jain filed Civil Revision No. 364 of 2004. The main ground of challenge was that the Executing Court had wrongly placed the onus on him to prove that he was not D.K. Jain. However, there was no challenge to the jurisdiction or power of the Executing Court to decide the issues framed.

As noted earlier, by the impugned order, the High Court has come to the conclusion that the Executing Court could not decide issue No.1 in exercise of its jurisdiction under Section 47 of the CPC. It has been held that the Executing Court could not go behind the pleadings and the judgment in the Civil Suit, wherein the case of the appellant related to the transaction with “M/s. Surya Trading Company proprietor D.K. Jain” and there was no reference of objector Deepak Jain, S/o late Sumer Chandra Jain, Advocate, 743 Sarafa Bazaar, Jabalpur in the judgment of the Civil Court. It has been observed that without seeking amendment under Section 152 of the CPC of the judgment-decree, the appellant was erroneously endeavouring to execute the money decree against Deepak Jain.

Being aggrieved by the decision of the learned Single Judge, the appellant is before us in this appeal, by special leave.

Mr. Sunil Gupta, learned senior counsel appearing on behalf of the appellant, strenuously urged before us that by the impugned order, the High Court has in effect overturned its earlier order dated 21st August, 2002 in Civil Revision No. 379 of 2002 (extracted above), whereby the Executing Court had been directed to hold an inquiry into the question of identity of the proprietor of M/s. Surya Trading Company. It was submitted that the High Court failed to appreciate that its own earlier order mandated the Executing Court to determine the identity of the proprietor of the judgment debtor and, therefore, the Executing Court was certainly competent and entitled to go into the said question in terms of Section 47, CPC. It was also contended that adjudication on the question of identity being a pure question of fact, it could not be interfered by the High Court in exercise of its jurisdiction under Section 115, CPC. In support of the proposition that the High Court should have taken into consideration the decision of the Co-ordinate Bench of the same High Court, dated 21st August, 2002, which had attained finality, learned counsel placed reliance on the decisions of this Court in Topanmal Chhotamal Vs. M/s. Kundomal Gangaram & Ors.1; Jai Narain Ram Lundia Vs. Kedar Nath Khetan & Ors.2 and Ravinder Kaur Vs. Ashok Kumar & Anr.3. AIR 1960 SC 388 AIR 1956 SC 359 (2003) 8 SCC 289

Per contra, Mr. Shiv Sagar Tiwari, learned counsel appearing on behalf of the respondents, supported the impugned judgment and submitted that the Executing Court had misread the evidence while coming to the conclusion that Deepak Jain and D.K. Jain are one and the same person and proprietor of M/s. Surya Trading Company. Learned counsel submitted that the High Court was justified in holding that the Executing Court could not go behind the decree and that the only remedy available to the appellant herein was to seek rectification of the decree by moving proper application under Section 152 of the CPC.

Having bestowed our anxious consideration to the background facts obtaining in the present case, in particular, the order passed by the High Court on 21st August, 2002, in the first round of litigation in execution proceedings, subject matter of Civil Revision No. 379 of 2002, in our opinion, the impugned judgment is unsustainable.

There is no quarrel with the general principle of law and indeed, it is unexceptionable that a court executing a decree cannot go behind the decree; it must take the decree according to its tenor; has no jurisdiction to widen its scope and is required to execute the decree as made. However, the question which falls for consideration in the present case is that when a specific issue regarding the identity of the judgment-debtor had been raised and entertained by the High Court in the first Civil Revision Petition, decided on 21st August, 2002, and the Court having remitted the matter to the Executing Court.

REMARKS

In my opinion, on facts in hand, the Executing Court had no option but to determine the question of identity of the judgment-debtor because of the direction of the High Court and the issues raised before it. Indeed, no objection to the jurisdiction of the Executing Court to determine the issue could or was raised. It is also manifest that the said direction by the High Court was keeping in view the provisions of Section 47 of the CPC.

Section 47 of the CPC contemplates that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of decree, have got to be determined by the court executing the decree and not by a separate suit. In the instant case, the controversy before the High Court, in the first instance, was whether the decree against “M/s Surya Trading, Proprietor, D.K. Jain” could be executed against Deepak Jain, who according to the decree holder, was no one else but D.K. Jain. It is true that Deepak Jain, as such, was not a party to the suit but the fact remains that “M/s Surya Trading Company, Proprietor, D.K. Jain” was Deepak Jain himself and, therefore, the question referred to the Executing Court by the High Court for determination was whether “D.K. Jain” and “Deepak Jain” were two different entities. We have no hesitation in holding that in the peculiar situation arising in the case, the said issue could be adjudicated under Section 47 of the CPC, notwithstanding the fact that Deepak Jain was not a party in the suit, wherein the decree in question was passed.

Moreover, it is evident from the order of the Executing Court that no plea regarding the applicability of Section 47 of the CPC was raised on behalf of the judgment-debtor before that Court. We are unable to persuade ourselves to agree with the High Court that the only course available to the decree holder was to seek amendment of the decree under Section 152 of the CPC, as was canvassed before us by learned counsel for the respondents. A bare reading of Section 152 CPC makes it clear that the power of the Court under the said provision is limited to rectification of clerical and arithmetical errors arising from any accidental slip or omission. There cannot be re- consideration of the merits of the matter and the sole object of the provision is based on the maxim actus curiae neminem gravabit i.e., an act of court shall prejudice no man. In our judgment, the issue requiring adjudication by the Executing Court did not call for and was clearly beyond the scope of Section 152 CPC.

We are also constrained to observe that while dealing with the second Revision Petition, the High Court failed to take into consideration the order passed by a learned Single Judge on 21st August, 2002, whereby the Executing Court was directed to conduct inquiry in regard to the status of the objector to the execution proceedings. Time and again it has been emphasised that judicial propriety and decorum requires that if a Single Judge, hearing a matter, feels that earlier decision of a Single Judge needs re-consideration, he should not embark upon that enquiry, sitting as a Single Judge, but should refer the matter to a larger Bench. Regrettably, in the present case, the learned Single Judge departed from the said healthy principle and chose to re-examine the same question himself. In view of the foregoing discussion, the appeal is allowed and the impugned judgment of the High Court is set aside with costs, quantified at Rs.20,000/-.

CASE SUMMARY: R.M.D.C. VS. UNION OF INDIA

DETAILS:

Case Name: R. M. D. Chamarbaugwalla vs. Union of India

Citation: 1957 AIR 628, 1957 SCR 930

Court of jurisdiction: Supreme Court of India

Year of the Case: 9 April, 1957

Appellant: R. M. D. Chamarbaugwalla

Respondent: Union of India

Bench/Judges: HON’BLE JUSTICE T. L. VENKATARAMA AYYAR, HON’BLE JUSTICE S. R. DASS (CJI), HON’BLE JUSTICE B. P. SINHA, HON’BLE JUSTICE S. K. DAS AND HON’BLE JUSTICE P. B. GAJENDRAGADKAR

SUMMARY:

In R.M.D.C. v. Union of India, AIR 1957 SC 628, the constitutionality of the Prize Competitions Act 1955, was challenged on the ground that it violated the Fundamental Right of the petitioners secured by Article 19(1(g). The impugned Act, provided for the control and regulation of prize competitions. It was contended that Section 2(d) of the impugned Act which defined the expression “prize competitions” included not only competitions of a gambling nature but also those in which success to a substantial degree depends on skill.

Having regard to the circumstances under which the impugned Act was passed, the Supreme Court held that it was to control and regulate prize competitions of a gambling character. Therefore, the Court stated that the application of impugned provision of the Act could be restricted to the competitions of gambling character. The provisions of the impugned Act were thus held severable in their application to competitions, in which, success did not depend, to any substantial extent, on skill. The Court held that when a Statute, was in part, void, it would be enforced as regards the rest, if that was severable from what was invalid, The Court then referred to the rules of construction laid down by the American Courts for the operation of the doctrine of severability and applied these to the present case.

The Supreme Court then summed up the rules relating to severability

1. In determining whether the valid parts of the statute are separable from the invalid parts thereof, it is the intention of the Legislature that is the determining factor. The test.to be applied is whether the Legislature would have enacted the valid part if it had known that the rest of the statute was invalid.

2. If the valid and invalid provisions are so indistinguishably mixed up that they cannot be separated from one another, then, the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable.

3. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form parts of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole.

4. Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety.

5. The reparability of the valid and invalid provision of a statute does not depend on whether the law is enacted in the same section or different sections (Vide Coley’s Constitutional Limitations, Vol. I, pp. 361-362), it is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provision therein.

6. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of if must be struck down as void, as otherwise it will amount to judicial legislation.

7. In determining the legislative intent on the question of severability, it will be legitimate to take into account the history of legislation, its object, the title and the preamble to it.

REMARKS

Intention of the legislature will determine whether the valid part of a statute is severable from the invalid parts. If the valid and invalid provisions are so inseparably mixed up that they cannot be separated from another, then the irrationality of a portion must result in the invalidity of the Act in its whole. On the other hand, if they are so distinct and separate that after striking out what is invalid what remains is itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest had become unenforceable.

Courts would be reluctant to declare a law invalid or ultra vires on account of unconstitutionality. Courts would accept an interpretation, which would be in favour of constitutionality rather than the one which would render the law unconstitutional. The court can resort to reading down a law in order to save it from being rendered unconstitutional. But while doing so, it cannot change the essence of the law and create a new law which in its opinion is more desirable.

Karnataka’s stand on New EIA Draft

EIA Draft, 2020

New updates to the Environmental Impact Assessment Draft, 2020 notice set out the process for companies to determine the economic and environmental effects of their planned operations and the method by which they will be evaluated by expert committees appointed by the Ministry of the Environment.

Why is the draft problematic?

The current draft breaches many provisions of the Forest Rights Act, 2006, the Prevention of Genocide Act, 1989, as well as other legislation protecting local communities’ rights. The draft infringes the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.

The legislation also limits the role of environmental consultants and scientists in environmental clearance systems.

Draft EIA 2020 has a description issue. It provides precise definitions of eco-sensitive areas and also tends to leave several protected areas out of its definition, such as wetlands, coasts, reserve forests, village forests etc.

Definition indirectly favours the polluters and violators and ignores the conditions regarding environment violating projects which are approved by regulatory authority.

The deforestation for future initiatives will reduce carbon sinks and the habitat loss of ecologically associated biodiversity (inclusive humans) will also increase. It all would result in a further deterioration of the environmental and ecological equilibrium, leading to a disaster.

It can be characterized by the easiness, instead of common people’s rights, but of manufacturing, company, company, capitalism. As more than 40 hazardous projects have been discharged from public discussion.

Karnataka’s upfront

As the EIA draft notification was published in two languages, i.e. Hindi and English concerning official languages act by the Central Government. This subsequently led in raising of many objections against it, regarding its publicity.

Karnataka also lifted its voice against the same by filing a petition i.e. United Conservation Movement Charitable and Welfare Trust(r) v. Union of India[1]. Petitioners claimed that, the draft notification breaches the former practices and lacked sufficient publicity. The draft was not published in vernacular languages and was only made available on official website of Ministry of Environment, Forest and Climate Change. Also, inadequate time was provided by the centre, to the public for sharing their views and opinions.

Therefore, Karnataka High Court restrain the Central Government from publishing the EIA Daft final Notification i.e. passing the legislation, provided to lend reasonable time to public in order to file objections and send feedback regarding the draft. Also, to translate the draft in all the 22 languages which are recognised by the schedule 8 of Indian Constitution. Union Ministry of Environment was asked to take permissible necessary steps concerning impugned EIA draft notification. The Government was cautioned regarding the publicising the controversial draft otherwise, court will pass a stay order through an interim prayer (was verbally mentioned by the bench).

Hence, the Government cannot proceed with publishing the final draft notification without verifying and satisfying the plea of petitioners.

Karnataka’s united Conservation Movement (UCM) has begun an online petition calling on the public to demand and seek an enhanced and impugned EIA. The EIA 2020 draft tends to encourage increased emissions, by diluting restrictions on manufacturing and construction activities. In this era of tremendous pollution in our city areas, the EIA 2020 needs to be improved, rather than permitting over 30 criteria that dilute the reports for more than 25 hazardous industries.

Ecological scientists and environmentalists in Karnataka warns that diluting EIA will be a direction towards disaster. This will harm the Indian Biodiversity hotspots especially the sensitive areas of Western Ghats which is ecologically fragile and is already degrading.

Conclusion:

EIA is defined by the UNEP as a tool used to identify the environmental, social and economic impacts of a project prior to decision-making. It involves public opinion regarding likely environmental impacts of a proposed project with an aim to reduce adverse impacts. The Delhi High Court in Samarth Trust case had considered EIAs “a part of participatory justice in which the voice is given to the voiceless and it is like a jan sunwai, where the community is the jury.”

The government needs to promote and protect the right to life and a healthy environment as mentioned in the Article 21.

The government needs to bring down the delays in granting environmental clearance in order to improve India’s position in the ease of doing business rankings. Covid-19 has given us all a wakeup call to mend our relationship with the Earth; therefore, it’s time to make environmental laws stricter. The need for stricter and efficient environmental laws has become imperative in the present age of climate change. Administrations, on a domestic and a global level need to formulate policies that reduce their carbon footprint and the per capita emissions of greenhouse gases. The first step in making this change towards a sustainable future is to regulate and monitor the activities of the industries that contribute the majority share towards polluting the environment, which means that firm environmental clearances and legislations need to be enforced. The EIA is such a draft that aims to assess the impact of such projects on the environment.

[1] W.P. NO. 8362/2020 [PIL]

COMPETITION LAW: BID RIGGING AND COLLUSIVE BIDDING

WHAT IS BID RIGGING AND COLLUSIVE BIDDING?

BID RIGGING

It is an illegal practice in which businesses plot and devise to allow over another to secure contracts at higher prices, thereby undermining free – market competition. Bid rigging infringe antitrust laws and is closely related to horizontal price – fixing, in that both offenses include collusion between supposed competitors in the same market group.

Bid Rigging comes about in situations in which companies are required to competitively bid contracts.

Competitively bid contracts are very well-known in the marketplace, particularly in government and education, where agencies are generally required to the minimal bid of a contract. It is not usual for competitors in same marketplace to plot to allow one or other to win a competitive bid in rotation. Then end result is that each of the companies will make a profit, often at a price well above that which they would have earned in a truly competitive market. The added costs resulting from the rigged bid are passed on to taxpayers, ratepayers and consumers.

COLLUSIVE BIDDING

Collusive bidding refers to agreements by contractors or suppliers in a particular trade or area to cooperate to defeat the competitive bidding process in order to inflate prices to artificially high levels. It can occur in large and small contracts. Where collusive bidding is well established prices can rise substantially, in some cases by as much as several hundred percent.

Collusion in international projects often involves corruption, in which government officials and procurement personnel under their direction sponsor or facilitate the collusion in exchange for bribes. All or part of the corrupt payments often end up in the coffers of local political parties where they are used to offset campaign and other expenses.[1]

INTRODUCTION

The Competition Act, 2002, (as amended), [the Act], follows the philosophy of modern competition laws and aims at nurturing and promoting competition and at protecting Indian markets against anticompetitive practices by enterprises. The Act prohibits anticompetitive agreements, exploitation of dominant position by enterprises, and regulates combinations (mergers, amalgamations and acquisitions) with a view to ensure that there is no adverse effect on competition in India.

The Act forbids any agreement which causes, or is likely to cause, significantcontrary effect on competition in markets in India. Any such agreement is considered void.

An agreement may be parallel i.e. between enterprises, persons, associations, etc. engaged in indistinguishable or similar trade of goods or provision of services, or it may be vertical i.e. amongst enterprises or persons at different stages or levels of the production chain in different markets.

Bid rigging or collusive bidding is one of the horizontal agreements, which shall be presumed to have appreciable adverse effect on competition under Section 3 of the Act.

UNDER THE COMPETITION ACT, 2002

The Competition Act, 2002 (‘Act’), ‘bid rigging’ has been defined in the Explanation to Section 3(3) as:

“An agreement, between enterprises or persons referred to in sub-section 3 engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding.”

Section 3(1) of the Act prohibits and Section 3(2) of the Act makes void all agreements by enterprises or persons in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services which cause or are likely to cause appreciable adverse effect on competition within India.

Further, Section 3(3)(d) of the Act uses both expressions viz., ‘bid-rigging’ and ‘collusive bidding’. Both these terms are normally used interchangeably to describe many forms of illegal anti-competition bidding. However, common thread running through these activities is that they involve some kind of agreement or informal arrangement among bidders, which limits competition.

The act treats agreement between bidders which result into bid rigging on presumptive rule approach, meaning hereby that once the essential ingredients constituting bid rigging are established there is no need to further launch into an elaborate inquiry to find out impact of such conduct on the market and adverse effect on competition is presumed.

In that situation, the burden shifts on the contravening parties to rebut the presumption by showing that their conduct does not result into “appreciable adverse effect on competition in India.”

DIFFERENT KINDS

Collusive bidding or bid rigging may be of different kinds, for instance-

agreements to submit identical bids;
agreements as to who shall submit the lowest bid;
agreements for the submission of cover bids (voluntary inflated bids);
agreements not to bid against each other, agreements on common norms to calculate prices or terms of bids;
agreements to squeeze out outside bidders;
Agreements designating bid winners in advance on a rotational basis, or on a geographical or customer allocation basis.

It is to be noted that an ‘agreement’ between ‘competing bidders’ is a sine qua non for establishing contravention of Section 3 of the Act.

FORMS OF BID RIGGING

Bid rigging may take many forms, but most bid rigging conspiracies usually fall into one or more of the following categories:

BID SUPRESSION

In bid suppression schemes, one or more competitors who otherwise would be expected to bid, or who have previously bid, agree to refrain from bidding or withdraw a previously submitted bid so that the designated winning competitor’s bid will be accepted.

COMPLEMENTARY BIDDING

Complementary bidding (also known as ‘cover’ or ‘courtesy’ bidding) occurs when some competitors agree to submit bids that are either too high to be accepted or contain special terms that will not be acceptable to the buyer. Such bids are not intended to secure the buyer’s acceptance, but are merely designed to give the appearance of genuine competitive bidding. Complementary bidding schemes are the most frequently occurring forms of bid rigging, and they defraud purchasers by creating the appearance of competition to conceal secretly inflated prices.

BID ROTATION

In bid rotation schemes, all conspirators submit bids but take turns to be the lowest bidder. The terms of the rotation may vary; for example, competitors may take turns on contracts according to the size of the contract, allocating equal amounts to each conspirator or allocating volumes that correspond to the size of each conspirator. A strict bid rotation pattern defies the law of chance and suggests that collusion is taking place.

SUBCONTRACTING

Subcontracting arrangements are often part of a bid rigging scheme. Competitors, who agree not to bid or to submit a losing bid, frequently receive subcontracts or supply contracts in exchange from the successful bidder. In some schemes, a low bidder will agree to withdraw its bid in favor of the next low bidder in exchange for a lucrative subcontract that divides the illegally obtained higher price between them.

Almost all forms of bid rigging schemes have one thing in common: an agreement among some or all of the bidders, which predetermines the winning bidder and limits or eliminates competition among the conspiring vendors.

THE PRIMER ADS

Some of the industry conditions favorable to collision are:

There are few sellers
Higher degree of standardization of products, making it easy for competitive firms to agree on a common price structure
Repetitive purchases enabling the vendors to know of the other bidders

SOME SUSPICIOUS BEHAVIOUR PATTERNS[2]

Bid rigging can be difficult to detect. However, suspicions may bearoused by unusual bidding or something a bidder says or does. An agreement (in collusion) not to respond to an invitation to tender until after discussions with other persons invited to tender, is also a bid rigging offence. Certain patterns in bids can give rise to suspicion of collusion. Situations of suspicious behavior includethe following (illustrative and not exhaustive):

The bid offers by different bidders contain same or similar errors and irregularities (spelling, grammatical andcalculation). This may indicate that the designated bidwinner has prepared all other bids (of the losers).

Bid documents contain the same corrections and alterationsindicating last minute changes.

A bidder seeks a bid package for himself/herself and alsofor the competitor.

A bidder submits his/her bid and also the competitor’sbid.

A party brings multiple bids to a bid opening and submitsits bid after coming to know who else is bidding.

A bidder makes a statement indicating advance knowledgeof the offers of the competitors.

A bidder makes a statement that a bid is a ‘complementary’,‘token’ or ‘cover’ bid.

A bidder makes a statement that the bidders have discussedprices and reached an understanding.

INQUIRY INTO BID RIGGING[3]

In exercise of powers vested under Section 19 of the Act, the Commission may inquire into any alleged contravention under subsection (3) of Section 3 of the Act that proscribes bid rigging.

The Commission, on being satisfied that there exists a prima facie case of bid rigging, shall direct the Director General to cause an investigation and furnish a report. The Commission has the powers vested in a Civil Court under the Code of Civil Procedure in respect of matters like summoning or enforcing attendance of any person and examining him on oath, requiring discovery and production of documents and receiving evidence on affidavit. The Director General, for the purpose of carrying out investigation, is also vested with powers of civil court besides powers to conduct ‘search and seizure’.

INTERIM ORDER[4]

Under section 33 of the Act, , during the pendency of an inquiry into bid rigging, the Commission may temporarily restrain any party from carrying on the offending act until conclusion of the inquiry or until further orders, without giving notice to such party, where it deems necessary.

POWERS OF THE COMMISSION[5]

After the inquiry, the Commission may pass inter- alia any or all of the following orders under section 27 of the Act:

1) Direct the parties to discontinue and not to reenter such agreement;

2) Direct the enterprise concerned to modify the agreement.

3) Direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any

4) Pass such other orders or issue such directions as it may deem fit.

PENALTY[6]

The Commission may impose such penalty as it deems fit. The penalty can be up to 10% of the average turnover for the last three preceding financial years upon each of such persons or enterprises which are parties to bid-rigging or collusive bidding. In case the bid-rigging or collusive bidding agreement referred to in sub-section (3) of section 3 has been entered into by a cartel.

The Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to 3 times of its profit for each year of the continuance of such agreement or 10% of its turnover for each year of the continuance of such agreement, whichever is higher. The penalty can therefore be severe, and result in heavy financial and other cost on the erring party.

Section 46 of the Act empowers the Commission to impose lesser penalty upon a party in a cartel if it makes true, full and vital disclosure leading to busting of the cartel. However, during the investigation if it is found that the party has not complied with the condition on which lesser penalty was imposed or disclosure is not vital or false evidence has been furnished, the party may not receive the leniency.

APPEALS[7]

The Competition Appellate Tribunal (COMPAT) is established under Section 53A to hear and dispose of appeals against any direction issued or decision made or order passed by the Commission under specified sections of the Act.

An appeal has to be filed within 60 days of receipt of the order / direction / decision of the Commission.

[1]https://guide.iacrc.org/potential-scheme-collusive-bidding/

[2] Competition Act, 2020, ‘Advocacy Series 4, Provisions relating to Bid rigging’ pg.6

[3] Ibid, pg.7

[4] Ibid,pg.8

[5] Ibid, pg8

[6] Ibid, pg.8

[7] Ibid, pg.8

TERRITORIAL SEA

INTRODUCTION

Sea is a large body of water that is surrounded by the land. It is an important a part of human trade and commerce, voyage, mineral processing, power generation and is additionally considered as an important source of blue economy nowadays. International law of the ocean may be a law of maritime space that peacefully settles the worldwide disputes on maritime boundary between or among the States and defines various jurisdictions of the maritime zones also because the rights and obligations of the coastal States in these zones, especially with reference to the conservation of marine environment and biodiversity.

Territorial sea is that part of the sea which is adjoining to the coastal State and which is adjacent to the high seas on its outer boundary. The Coastal State exercises its supremacy over this area as it exercises over its domestic waters. The sovereignty expands to the airspace over the territorial sea as well as its bed and sub-soil. This sovereignty accumulates to a State under the customary international law which no State can rebut.

Law of the Sea

The law of the ocean may be a body of customs, treaties, and global agreements; by which governments maintain order, productivity, and amicable relations on the ocean. It involves subjects such as navigational rights, sea mineral claims, and coastal waters jurisdiction.

Body of international law concerned with civic order at sea. Much of this law is codified within the United Nations Convention on the Law of the ocean, signed Dec. 10, 1982. The convention, described as a “constitution for the oceans,” represents an endeavor to systemize international law regarding territorial waters, sea-lanes and ocean resources. It came into authority in 1994 after it had been approved by the required 60 countries; by the early 21st century the convention had been approved by 150+ countries.

UN Convention of the Law of the Sea

Maritime zones are a principal component of present law of the sea. The first effort to publish and codify a comprehensive law of the sea was in the 1950s, shortly after the Truman proclamation on the continental shelf. In 1956, the United Nations held its first Conference on the Law of the Sea (UNCLOS I) in Geneva, Switzerland, outcome of which was four treaties concluded in 1958: Convention on the Territorial Sea and Contiguous Zone, entry into force: 10 September 1964 Convention on the ocean floor, entry into force: 10 June 1964 Convention on the High Seas, entry into force: 30 September 1962 Convention on Fishing and Conservation of Living Resources of the High Seas, entry into force: 20 March 1966

The Convention on the ocean floor effectively codified Truman’s proclamation as customary law of nations. While UNCLOS I was widely considered a triumph, it left unwrap the concern of the extent of territorial waters. In 1960, the UN held a second Conference on the Law of the Sea (“UNCLOS II”), but this did not result in any new agreements. The pressing issue of varying claims of territorial waters was elevated at the UN in 1967 by Malta, prompting in 1973 a third United Nations Conference on the Law of the Sea in New York City. In an effort to scale back the likelihood of groups of nation-states dominating the negotiations, the conference used a consensus process instead of majority vote. With quite 160 nations participating, the conference lasted until 1982, leading to the UN Convention of the Law of the ocean, also referred to as the Law of the Sea Treaty, which defines the rights and responsibilities of nations in their use of the world’s ocean.

Territorial Sea

Maritime Belt or territorial waters is that belt of the sea which is adjacent to the costal state and over which costal state exercises the sovereignty. The territorial sea (also called territorial waters) may be a maritime area beyond and adjacent to the interior waters, and shall not extend beyond twelve nautical miles (‘nm’) from the baselines. In the territorial sea the coastal State exercises sovereignty extending to the air space over the territorial sea also on its bed and subsoil.^[1]

However, the sovereignty over this zone has to be exercised subject to the provisions of the conventions and ‘to other rules of international law’ which provides several rights to other States, particularly right of ‘innocent passage’ within the body of water of the State. The territorial sea extends to a limit of 12 nautical miles from the baseline of a coastal State. Within this zone, the coastal State exercises full sovereignty over the air space above the sea and over the seabed and subsoil. A coastal State may enact on matters concerning the security of navigation, the preservation of the environment, and the prevention, reduction, and control of pollution without any compulsion to make these rules compliant with international benchmark. Resource use within the territorial sea is strictly reserved to the coastal State.

Territorial sea, as defined by the 1982 United Nations Convention on the Law of the ocean^[2] , may be a belt of coastal waters extending at the most 12 nautical miles (22.2 km; 13.8 mi) from the baseline (usually the mean low-water mark) of a coastal state. The territorial sea is taken into account the sovereign territory of the state, although foreign ships (military and civilian) are allowed innocent passage through it, or transit passage for straits; this sovereignty also extends to the airspace over and seabed below. Adjustment of those boundaries is named, in law of nations, maritime delimitation.

A state’s territorial sea extends up to 12 nautical miles (22.2 km; 13.8 mi) from its baseline. If this is often ready to overlap with another state’s territorial sea, the border is taken because the median point between the states’ baselines, unless the states in question agree otherwise. A state also can prefer to claim a smaller territorial sea.

Problem of Breadth of Territorial Waters

The breadth of the territorial sea has remained a tricky issue, and up to 18th century the opinion was that breadth of territorial sea extends to the range of a ‘cannon-shot’ which at that time was three nautical miles. The three-mile rule which is popularly known as ‘cannon-shot’ rule was promulgated by the Dutch jurist, Bynkershock. He had a hypothesis that a State’s sovereignty broaden to the sea as far as a canon or fire could reach.

In order to fix breadth of the maritime belt, first important attempt was made by the league of the Nations. The Hague Conference of 1930 made an unsuccessful attempt to obtain consensus of the nations on a specific breadth of territorial sea. Since, International Law could not fix definite breadth of maritime belt, different countries claimed different breadths. In order to resolve this problem, Geneva Conference on the Law of the sea was called but the controversy could not be resolved. For the same purpose another conference, known as UN Convention on the Law of the Sea was called in 1960. In this conference, America presented a compromise formula which provided that the breadth of territorial waters should be 6 miles and beyond these 6 miles rights for fishing etc. for another 6 miles. The proposal was defeated by majority of a single vote.

Before the 1982, Sea Convention was concluded; States announced varying breadth of the territorial sea, ranging from 3 to 12 miles, though in certain cases they had state publicly wider areas comparatively, in few cases up to 200 nautical miles. But at the UNCLOS-III, claims broader than 12 miles did not find favour and the 12 miles rule was accepted by the Conference, which may be considered the present customary international law position.

The U.N. Convention of 1982 under Article 3 adopts the twelve-mile limit as a breadth of the territorial sea. It provides that every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles measured from baselines determined in accordance with the Convention. Two methods have been laid down for measuring the breadth of the territorial sea:

The low-water line 2. The straight baseline.

The normal method used is the low-water line as marked on large-scale charts officially recognized by coastal State.

The method of straight baseline was expressed by the Anglo Norwegian Fisheries case, which had a decisive effect on the baseline issue.

Innocent Passage

Under the 1982, the sovereignty of a coastal State over its territorial water has a vital limitation that is the right of innocent passage enjoyed by ships (merchant ships, governmental ships and warships) of all States, whether coastal or landlocked, over the territorial sea of the coastal State. Passage means navigation through the territorial sea for the purpose of passing through that sea with no entering into internal waters or calling at a roadstead or port facility outside internal waters. Passage must be continuous and efficient; however, it may include stopping and anchoring in so far as they are incidental to ordinary navigation or are rendered necessary by inevitable accident or anguish or for the purpose of rendering assistance to persons, ships or aircraft in danger or trouble. Passage must take place in conformity with the 1982 Convention and with other rules of International Law.

Passage must be innocent; it is innocent so long as it is not detrimental to the peace, order or security of the coastal State. The coastal States has the right to make laws to regulate the territorial waters. It can implement laws and regulations governing innocent passage, and to prevent passage which is not innocent. Foreign ships in the innocent passage are required to comply with all such laws and regulations, framed by the coastal State, and other common international regulations for the prevention of collisions at sea.

The 1982 Conventions provides that the coastal State must not hamper the innocent passage of foreign ships through its territorial seas except in accordance with the Convention. The Coastal State, within the application of the Convention or of any laws or regulations adopted in conformity with it, must not impose requirements aiming at denying or impairing the right of innocent passage, or discriminate on form or actually against the ships of any State or against ships carrying cargoes to, from or on behalf of any State. It must give appropriate publicity to any danger to navigation, of which it’s knowledge, within its territorial sea. It must not levy any charges upon foreign ships by reason only of their passage through its territorial sea; charges could also be levied as payment just for specific services rendered to the ship.^[3]

The coastal State is under an obligation not to exercise its criminal jurisdiction on foreign ship elapsing through its territorial sea, except in the cases precise by the Convention. It is also under an obligation not to exercise civil jurisdiction in relation to a foreign ship or a person on its board, except in the cases specified by the Convention. Remarkably, the warships and other government ships operated for non-commercial purposes are exempted from any jurisdiction; however the coastal State, during a case of failure of any of those ships from obeying with its laws and regulations, may order it to leave its territorial Sea immediately.

The right of innocent passage is additionally enjoyed by submarines and other underwater vehicles. However, it is required that they pilot on the surface and show their flag.

Rights of the Coastal State over the Territorial Sea[4]

As the 1982 Convention provides, the sovereignty of the coastal State extends to its territorial sea as well as to the air-space over its territorial sea, its bed and subsoil. In this regard the coastal State enjoys the following:

(1) The exclusive right to fish, and to exploit the resources of the seabed and subsoil of its territorial sea.

(2) The exclusive right in the air-space over its territorial sea to the exclusion of other States. Foreign aircrafts, unlike ships, have no right of innocent fly in the air-space over the territorial sea of a State.

(3) The right to enact laws and regulations, in conformity with the 1982 Convention and other rules of International Law, particularly in respect of navigation, health, customs, immigration and preservation of the environment.

(4) The right to take the necessary steps in its territorial Sea to prevent passage which is not innocent.

(5) The exercise of criminal jurisdiction on board of a foreign ship (arresting any person or conducting any investigation in connection with any crime committed on board of the foreign ship) in the following cases: if the consequences of the crime extend to it; if the crime is of a kind to disturb the peace of the country or the good order of its territorial sea; if the assistance of the local authorities has been requested; if the measures are necessary for the suppression of illicit traffic in narcotic drugs; or after leaving its internal water.

(6) The exercise of civil jurisdiction in relation to a foreign ship (levy execution against or arrest the ship for the purpose of any civil proceedings) in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through its waters, or in respect of any civil proceedings against a foreign ship after leaving its internal waters.

[1] Art. 2 UN Convention on the Law of the Sea; Arts 1–2, Geneva Convention on the Territorial Sea and the Contiguous Zone

[2]UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, retrieved 27 April 2016.

[3]https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/12-the-law-of-the-sea

[4] The 1982 Convention on the Law of the Sea, Article 2, 21, 22, 25-28.

PREAMBLE – ‘IDENTITY CARD OF THE CONSTITUTION’

We have adopted the concept of preamble by American constitution. Preamble resemble as the preface or introduction to the constitution. NA Palkhivala; an eminent jurist called it as identity card of constitution.

the constitution derives its authority from people of India. Preamble declares Indian state as sovereign, socialist, secular democratic and republican.

Objective of constitution specifies justice, liberty, equality, and fraternity.

Date of adoption of constitution is November 26, 1949.

IMPORTANT TERMS:

1) SOVEREIGN- State is free to conduct its own affairs both externally as well as internally.

2) SOCIALIST– We believe in democratic socialism i.e. concept of mixed economy is persistent.

3) SECULAR– India embodies a positive concept of secularism so all religions have same status and support from the state accordingly articles 25 to 28 have been included as the fundamental rights of constitution.

4) DEMOCRATIC– India provides for a representative parliamentary democracy under which executive is responsible for legislature for all its actions.

5) REPUBLIC- It represents that India has an elected head called the President. It also means that people are vested with power of political sovereignty and there is absence of any privileged class.

6) JUSTICE– This concept is borrowed from Russian Revolution, providing people with social (equal treatment without discrimination on any bases) economic (elimination of glaring inequalities in wealth) and political (equal access to political offices and voice in government) justice.

7) LIBERTY– Absence of restraints on the activities of individuals, at same time providing opportunities for development of individual personalities.

8) EQUALITY– Absence of any privileges to any section of society and provision of adequate opportunities for all.

9) FRATERNITY- Sense of brotherhood involving dignity of individuals and unity and integrity of nation.

SIGNIFICANCE OF PREAMBLE:

It embodies basic philosophy and fundamental values. It is defined as ‘ horoscope of our sovereign democratic republic’ by KM Munshi.

Preamble is an important part of constitution which impacts the life of each individual.

“Law and order are the medicine of the body politic and when the body politic gets sick, medicine must be administered”.- B.R. Ambedkar

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