Animals and the Law: do they have rights?

Article in the Indian Express dated December 31, 2018 regarding the Recognition of Rights of Animals. Link to this article:

http://epaper.indianexpress.com/c/35347963

The Year That Was - JUDICIARY PAVES THE WAY FOR A NEW INDIA

Source: Hindustan Times dated 31.12.2018

A slew of landmark orders that made history, an unprecedented press conference by four senior Supreme Court judges who questioned a Chief Justice’s style of functioning, and efforts to tackle the pendency of cases — 2018 was a remarkable year for the top court, which gave the country some of its biggest headlines

Progressive and historic: Verdicts break barriers

The year 2018 has been a watershed year for the Supreme Court in terms of interpreting jurisprudence. A series of progressive verdicts delivered by the apex court took India’s legal framework out of the confines of Victorian morality.

Through its path-breaking judgments, four of which were delivered in the span of a month, the court reasserted itself as a protector of individual rights, liberty, privacy and gender equality. The court ensured that reason triumphed over prejudice in the quest for social progress. In some cases, it corrected the wrongs it committed in the past.

Providing justice to the underprivileged and the deprived remained a top priority. Directions were issued on matters related to rape survivors, jail reforms, rehabilitation of widows in Vrindavan and curtailing online circulation of sexual violence and child porn. A mechanism was evolved to address these issues, and the court succeeded in nudging the Centre to deliberate and come up with realistic action plans. The court refrained from indulging in policymaking but, on a regular basis, monitored the implementation of the plans.

Rape survivors, too, have a right to live with dignity, the court asserted as it directed the media not to reveal their identities “even in a remote manner.” The dead cannot be denied dignity, it said, while asking print and electronic media not to show faces of victims of rape and sexual assault who succumb to injuries. After the top court’s constant monitoring, the Centre and big technology companies, including Google, Microsoft and Facebook, stepped up their efforts to stamp out child pornography online.

The top court remained firm on its decades-old ruling that right to live included right to clean environment and issued numerous orders to keep a check on growing pollution.

It banned the sale of BS-IV cars with effect from April 1, 2020, and ordered that only BS-VI cars be sold in the market thereafter. For the conservation of world heritage site Taj Mahal, it directed Uttar Pradesh to prepare a vision document.

Specifically for Delhi-NCR, the court asked the Central Pollution Control Board to get tech-savvy and accept complaints from citizens on social media. It said Diwali celebrants nationwide will get two hours between 8pm and 10pm to burst firecrackers during the festival in November and made the sale of only “green and improved” fireworks mandatory in NCR.

And then there were the landmark orders.

In March, it reversed a Kerala high court order that annulled an interfaith marriage it felt was a sham. “Marriage and personal relations are the core of plurality of India. We must do everything to protect it,” the top court said, ruling that consenting adults have the right to choose whom they wed.

In September, it ruled that gay sex between consenting adults is not an offence, reading down the British-era Section 377 of the penal code. “Any discrimination on the basis of sexual orientation violates fundamental rights,” said then CJI Dipak Misra.

In a September judgment that balanced the needs of the marginalised and the privacy of individuals, the top court upheld the constitutional validity of the Aadhaar project, but with riders.

And again in September, an archaic patriarchal legislation that treated women as the “chattel of husbands” was cast aside by the court when it scrapped the adultery law. In practice for 158 years, the law dented a woman’s individuality, denied her the right to equality and promoted ownership of one gender over the other, the top court ruled. Adultery, however, remains grounds for divorce.

That women’s rights are strongly embedded in the Constitution was the principle that guided the top court to open the doors of the Sabarimala temple in Kerala to women of all age groups in September, and in November the court agreed to reconsider the judgment while refusing to stay the operation of the verdict.

Crisis of confidence and an unprecedented event

When four senior Supreme Court judges aired their grievances before the media early this year, they brought to the fore differences simmering in India’s top judiciary and set off intense scrutiny of the top court’s credibility. In that unprecedented January event, Justice J Chelameswar, Justice Ranjan Gogoi (now the Chief Justice of India), Justice Kurian Joseph and Justice Madan B Lokur objected to the manner in which important cases were being allocated, and called for collective leadership.

The Supreme Court collegium — all the four judges and the then CJI, Dipak Misra, were part of it —takes collective decision on the matters of appointment, but the Chief Justice of India is considered the ‘first among the equals’. In the words of Justice Chelameswar (now retired), that press conference was an “extraordinary event in the history of the nation, more particularly this nation”.

He said the administration of the Supreme Court was not in order and many things which were less than desirable had happened, though the judges refrained from making public all the details of what they thought to have gone wrong.

The judges said they were forced to speak in public, breaking the settled principle of judicial restraint, because the CJI did not take steps to redress their grievances. Speaking to HT back then, people close to the CJI refuted the allegations and stressed that judges in the top court were equal and that work was allocated fairly. The event opened the court to external scrutiny, and challenged the sanctity of the judiciary in a manner the country had never seen before.

After the differences came out in the open, lawyers, politicians and analysts took sides, with some insisting that the judges should not have gone public and others countering that they had no option.

“The press conference should not be seen as a revolt or a challenge to authority. It must be seen as a desperate cry to set right a revered institution,” Supreme Court lawyer Sanjay Hegde wrote in HT. The press meet did have some impact. Some changes were ushered in by CJI Misra, and the roster, or the way work is allocated, was made public.

Then in April, seven opposition parties led by the Congress moved a notice for the impeachment of Misra, accusing him of “misbehaviour” and “misuse” of authority in the administration of the court. Rajya Sabha chairman M Venkaiah Naidu rejected the notice. It was for the first time in the history of independent India that an attempt to remove a sitting Chief Justice was even initiated. The ruling Bharatiya Janata Party accused the Opposition of politicising the court.

The other side of the debate

Alongside the landmark orders, dissenting judgments authored by justices who did not concur with the majority views, became a talking point this year, showcasing the vibrant nature of India’s democracy where the ‘other’ viewpoint ignites debate and gives the nation food for thought on important issues. For example, Justice DY Chandrachud said in his dissenting order that the Aadhaar law was unconstitutional as it infringed upon the privacy of individuals. He stressed that the passage of the “Aadhaar Act as a Money Bill is an abuse of the constitutional process”. Justice Chandrachud added that dignity and the rights of individuals cannot be made to depend on algorithms or probabilities, and that constitutional guarantees cannot be subject to the vicissitudes of technology. “Allowing private entities to use Aadhaar numbers, under Section 57, will lead to commercial exploitation of the personal data of individuals without consent and could also lead to individual profiling,” he wrote. Justice Indu Malhotra, the sole woman judge on the Constitution Bench that opened the doors of the Sabarimala temple to women of all ages, cautioned against judicial review of religious faith and practice, especially in the absence of an aggrieved person from that particular religious sect. The prohibition for admitting women between the ages of 10 and 50 at the hill shrine, she held, was an essential practice for the devotees of Lord Ayappa, the presiding deity of the temple. She felt that they formed a separate religious denomination and was thus protected under the Constitution.

CLEAN CHIT TO RAFALE DEAL

On December 14, the court rejected a bunch of petitions that demanded a court-monitored probe of the Rafale deal, saying it saw no reason to doubt the process followed in the ₹59,000-crore purchase in which the Congress has been alleging wrongdoing. The court refused to go into pricing, and said it saw no evidence of commercial favouritism, was satisfied that due process had been followed, and the need for procuring the aircraft was not in doubt. The order had some errors; the most significant being a mention that the pricing details had been shared with CAG, that the auditor had submitted a report to the Public Accounts Committee, and that redacted portions of the report were available in the public domain. The government filed an application for a correction even as the Opposition claimed the Centre misled the court. The application for correction is yet to be taken up.

NATIONAL ANTHEM ORDER

On January 9, the Supreme Court said cinema halls across India no longer needed to play the national anthem before film screenings, reversing an order passed over a year ago. The ruling came after the Centre asked for “status quo ante”– or a return to the situation before the court had passed its November 2016 order. Before the 2016 ruling, some state governments — including that of Maharashtra — made it mandatory for the national anthem to be played in theatres. Legal experts said any such executive order by states would still stand. If a theatre does play the anthem, moviegoers will have to stand to show respect, the court specified, but said that differently abled people would be exempt.

SC/ST ACT RULING

On March 20, the Supreme Court banned automatic arrest and registration of criminal cases under the Scheduled Castes (SC) and the Scheduled Tribes (ST) Prevention of Atrocities Act, 1989. It ruled that no arrest can be made under the act without prior permission, and added that a court can grant anticipatory bail if it, prima facie, finds the complaint is in abuse of the law, false, motivated and intended to blackmail or to harass a person. The judgment triggered widespread protests that it diluted the law meant to protect marginalised communities. The Union cabinet later approved a bill to restore key provisions of the act.

A tourist destination

In October, the Supreme Court launched a portal, through which citizens can book a one-hour guided tour. Entry to the 60-yearold building, which is in a high-security zone, was restricted earlier, and regulated either through an electronic access card or daily passes. The court’s registry has developed a site that will help citizens choose the date and time for a 60-minute visit.

AADHAAR PASSES THE TEST

On September 26, a majority judgment of a Constitution Bench of the Supreme Court upheld the constitutional validity of Aadhaar, but restricted its use to government welfare schemes funded by the Consolidated Fund of India. The judgment, however, scrapped, wrote down, or amended key clauses in the UIDAI Act to protect the rights of individuals and prevent misuse of their Aadhaar details, giving the petitioners a partial victory. Bank accounts and mobile phone numbers no longer need to be linked to Aadhaar, and transaction details will only be kept for six months, against five years the law originally mandated. The court also said children cannot be denied school admission for want for Aadhaar, though the number would be required for filing income-tax returns, making it necessary to link it with the PAN.

A WATERSHED MOMENT

Justices Kurian Joseph, J Chelameswar, Ranjan Gogoi (now the CJI) and Madan Lokur (not in pic) question the top court’s functioning in a January press meet in New Delhi.

SABARIMALA DOORS OPEN

On September 28, the court ended a centuries-old ban on the entry of women of child-bearing age into Kerala’s Sabarimala temple, saying exclusion on the basis of biological and physiological features was unconstitutional and discriminatory as it denies women the right to be treated as equals. The order sparked protests in Kerala, where traditionalists clashed with police and forced women to abandon their pilgrimage. Protesters believe women of reproductive age should not visit the 800-year-old shrine as its presiding deity, Lord Ayyappa, is celibate. The top court is hearing review petitions in the case.

PASSIVE EUTHANASIA NOD

On March 9, the court ruled that a person has the right to decide against being put on artificial life support by creating a living will. The court held that the right to life and liberty, enshrined in Article 21 of the Constitution, includes the right to die peacefully and with dignity. It upheld a person’s right to choose passive euthanasia by creating an Advance Medical Directive — commonly referred to as a living will — as to how s/he should be treated in the eventuality of a terminal illness. Active euthanasia continues to be illegal in India. A national debate was sparked by a favourable 2011 SC judgment in the case of 66-year-old Mumbai nurse Aruna Shanbaug, who was in a vegetative state for more than 40 years after being sexually assaulted.

ADULTERY LAW SCRAPPED

On September 27, the Supreme Court struck down adultery as a criminal offence, ruling that the 19th century law that treats “a husband as the master” was unconstitutional, though the offence was a “ground for divorce.” Quashing the archaic law, which has been on the statute book for more than 150 years, the court said in a unanimous verdict, “...if it (adultery) is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better be left as a ground for divorce.” Section 497 of the Indian Penal Code made adultery an offence if a married man has sex with the wife of another married man without his ‘connivance’ or ‘consent’. But only men, and not women, could be prosecuted.

HADIYA MARRIAGE VALID

On March 8, the Supreme Court upheld the validity of the marriage of Hadiya, a 26-year-old Kerala Hindu woman who converted to Islam and wed a Muslim man, overturning a high court order that annulled their marital union as a sham. The order upheld a woman’s right to choose her partner. It said the HC “should not have annulled the marriage” of Hadiya and Shafin Jahan. The HC not only invalidated Hadiya’s marriage but also handed her custody to her parents until the top court stepped in. The case put the spotlight on “love jihad”, a controversial term coined by fringe Hindu groups to describe what they claim is a conspiracy by Muslim men to lure Hindu women into marriage.

JUDGE LOYA DEATH

On April 19, the apex court dismissed pleas seeking an independent probe into the death of special CBI court judge BH Loya, ruling that he died of natural causes and slamming the petitions as an attempt to scandalise the judiciary and obstruct justice. The verdict triggered a political slugfest between the ruling and opposition parties. Judge Loya, who was hearing the Sohrabuddin Sheikh encounter case, died of a cardiac arrest on December 1, 2014, in Nagpur, where he had gone to attend a wedding. BJP chief Amit Shah was one of those named in the Sohrabuddin case, and discharged.

New life for old classics, as their copyrights run out

Source: Times of India dated 31.12.2018

Alexandra Alter

Nearly a century ago, publisher Alfred A Knopf released a slim book of spiritual fables by an obscure Lebanese-American poet and painter named Kahlil Gibran.

Knopf had modest expectations, and printed around 1,500 copies. Much to his surprise, the book — titled “The Prophet” — took off. It became a huge hit, and went on to sell more than 9 million copies in North America alone.

Until now, the publishing house that still bears Knopf’s name has held the North American copyright on the title. But that will change on Tuesday, when “The Prophet” enters the public domain, along with works by thousands of other artists and writers, including Marcel Proust, Willa Cather, D H Lawrence, Agatha Christie, Joseph Conrad, P G Wodehouse, Rudyard Kipling, Katherine Mansfield and Robert Frost.

In 2019, a large body of copyrighted works will lose their protected status — a shift that will have profound consequences for publishers and literary estates, which stand to

lose both money and creative control. It will also be a boon for readers, who will have more editions to choose from, and for writers and other artists who can create new works based on classic stories.

The sudden deluge of available works traces back to legislation Congress passed in 1998, which extended copyright protections by 20 years. The law reset the copyright term for works published from 1923 to 1977 — lengthening it from 75 years to 95 years after publication. Now that the term extension has run out, the spigot has been turned back on. Over the next few years, the impact will be great, in part because the 1920s were a fertile period for Western literature, with the rise of masters like F Scott Fitzgerald, William Faulkner, Ernest Hemingway and Virginia Woolf.

Once books become part of the public domain, theatre and film producers can adapt the works without having to secure rights. Rival publishing houses can issue new print editions, and scholars can publish new annotated versions. Free digital copies will also circulate online. NYT NEWS SERVICE

140 cases pending in lower courts for more than 60 yrs. - 66,000 Stuck For Over 30 Yrs

Source: Times of India dated 31.12.2018

Pradeep.Thakur@timesgroup.com

New Delhi:
Rahul Pathak of Buxar, Bihar, filed a case on May 5, 1951, for final decree or judgment. According to records with the National Judicial Data Grid, the case is still at the argument stage in the Dumraon civil court; the last hearing was on November 18, 2018. The court is yet to update the next date of hearing.

The story, though unusual, is not unique. Similar cases, running into thousands, are pending for over 40-50 years or so in remote corners of the country. Official statistics show there are about 140 cases pending in lower courts for more than 60 years, many since 1951. Cases pending for over 30 years are as high as 66,000 in district and subordinate courts as on December 28, 2018. And those pending for over five years add up to 60 lakh.

A recent assessment by the government noted that at the current rate of disposal, it will take 324 years for pending cases in subordinate courts to be disposed.

A TOI analysis, on yearwise pendency since 1951, shows there are about 1,800 cases still in hearing or argument stages for the last 48-58 years. As per records, the pendency has increased to an alltime high of 2.9 crore cases.

M’rashtra second highest in pendency of cases 30 yrs old

As high as 71% of these are criminal cases where an accused could be languishing in prison as an undertrial. Last month, subordinate courts disposed of 8 lakh cases against 10.2 lakh new ones instituted, generating a backlog of more than 2.2 lakh cases every month, on an average, besides the current pendency.

Around 13,000 cases have been pending for over 40 years and around 51,000 for up to 37 years. UP, the most populous state, accounts for the highest 26,000 cases pending for over 30 years, or nearly 40% of all such cases, followed by Maharashtra where over 13,000 cases are pending for such a period. About 96% of all such pendency are in six states of UP, Maharashtra, West Bengal, Bihar, Gujarat and Odisha. Overall, these states together have more than 1.8 crore cases pending in their subordinate courts, which is over 61% of 2.93 crore pendency in all lower courts in India.

Many of these cases are on perpetual stay while others are simply being given a new date of hearing but never taken up for final disposal — reasons are not recorded. For instance, a case filed on July 2, 1953 by one Bhagwan against Dulari in Varanasi is on perpetual stay. The case history shows that it reached first hearing date on October 11, 2015, and the next date of hearing has been fixed on January 15, 2019.

A case, ‘UP state vs Ayoudhyas’, filed on March 18, 1966, reached appearance stage before civil judge Duddhi in Sonbhadra district in September 2016 and has since been given next date of hearing on February 13, 2019.

Tweak in 1927 law to finally define what makes a forest

Source: Hindustan Times dated 27.12.2018

• Jayashree Nandi letters@hindustantimes.com

While it’s good that the SC judgment in the Godavarman case will be incorporated, a national level definition may not address issues faced by low forest cover states like Haryana and Rajasthan CHETAN AGARWAL, environmental analyst.

NEW DELHI: Forest areas could be redefined when the Indian Forest Act 1927 is amended next year. The union environment ministry set up a committee in 2016 to study the law and suggest amendments to make it relevant to current times.

Since then, the committee has had several meetings and prepared a draft of the law. One of the recommendations of the committee is to define forests as per the Supreme Court’s judgment of 1996 in the Godavarman case which had said that forests should be identified as per dictionary meaning of the word.

Senior forest officials told HT that the first draft of the amendments is ready and consultations with state governments on the draft may begin early in 2019. The lack of a definition for forests has led to ambiguity in many states over conservation of forests outside protected areas. In Haryana for example, large stretches of the Aravalis have not been declared forests because the Haryana government said they are waiting for a definition of forests and because large swathes of forests are in private lands. “The SC order of 1996 is the law of the land. It will now be incorporated in the Indian Forest Act for further clarity,” said a senior environment ministry official.

A non-government expert who is a committee member for amending the Act said the Indian Forest Act is “archaic” and not in sync with new concepts such as the Forest Rights Act 2006, payment of eco-system services, forest certification and private conservancy. “All of these concepts have been introduced in the draft. But there have been lots of arguments with other committee members and now states will also have their say,” he said. Non-government members are worried if the draft will be cleared in time before the elections in 2019 otherwise the entire exercise of recommending amendment will be futile, they said. “As legal and ngo members we are trying to ensure that the Act is in line with the Forest Rights Act 2006 which gives ownership rights over forests to tribals and other forest dwellers. The bureaucrats have some reservations,” a committee member said.

“While it’s good that the SC judgement in the Godavarman case will be incorporated, a national level definition may not address the issues faced by low forest cover states such as Haryana and Rajasthan. There should be different criteria for low forest cover states where even scrub forests should be considered as forests,” said Chetan Agarwal, environmental analyst.

Tushar Dash of non-profit research group Community Forest Rights-Learning and Advocacy (CFR-LA) said the “Indian Forest Act is a colonial legislation framed with a colonial structure of governance. A democratic paradigm of involving forfest dwellers was established under the Forest Rights Act 2006. A large number of penal cases filed against forest dwellers are under Indian forest Act and State Forest Acts which criminalizes tribals and forest dwellers for being on forest land. This should be addressed in the amendment,”

The environment ministry had constituted the committee for amendment of Indian Forest Act consisting of principal conservator chief of forests (PCCFs) from Madhya Pradesh; Chhattisgarh; Maharashtra; Manipur; Noyal Thomas, inspector general of forests; Shankar Shrivastava, advocate , high court of Madhya Pradesh; Sanjay Upadhyay, SC advocate; Ravi Singh, secretary general of WWF among others. Earlier this yea, the government had amended a part of the Indian Forest Act. After amending Section 2(7) of Indian Forest Act, 1927, bamboo is no longer a tree and felled bamboo too is not timber. So any bamboo grown in private or homestead land by millions of farmers does not require a felling permission or transit permission from any state forest department anymore.

SC drive to integrate police, court

Source: Hindustan Times dated 27.12.2018

It seeks to make live exchange of data possible between all criminal courts, police stations

NEWDELHI: A Supreme Court panel has launched a pilot project in Telangana’s Warangal district to integrate two crucial pillars of the criminal justice delivery system -- the courts and police stations.

The inter-operable criminal justice system (ICJS), an initiative of the apex court’s eCommittee, seeks to make live exchange of data possible between all criminal courts and police stations. This would help save precious time i spent on completing paper work and documentary evidence such as the first information reports (FIR) and charge sheets. Tracking court proceedings would become easier for investigating officers.

With ICJS in place, the courts can access live data of FIRs and charge sheets from the police, provided both are ready, in electronic form in the police system. Judges will have access to details of cases, FIR numbers, names of the accused and details of arrest the moment they are uploaded into the system.

In reciprocation, the court will be able to send details of remand orders, bail, property release and other information to the police electronically. Police officers will be able to access live update of court proceedings in each case and also orders passed.

Similarly a charge sheet in electronic form will be notified through the ICJS interface directly to the court concerned. Details of the sections under which suspects are charged by the police, whether the accused are on bail or in jail, the charge sheet number, list of witnesses and name of the investigating officer would be available with the court online. The police will get to know the lawyers appearing in a particular case, access and judicial business records and also the next date of hearing.

Police will continue to get updates along with all the details of the case from day to day until the final termination of a case. The system would also help in bringing fugitives and those facing non-bailable warrants to justice more effectively and quickly.

“There are plans to extend the ICJS data sharing to other states. So far five states have shown interest,” justice MB Lokur, who heads Supreme Court’s eCommittee, told HT. Justice Lokur, also the chairman of ICJS, inaugurated the pilot project through video conferencing on December 15.

With the project, e-courts have now become interoperable with other pillars of the criminal justice system. The next phase would include expanding it to prisons, forensic facilities, the prosecution system and juvenile homes.

Advocate Gyanant Singh lauded the effort of the eCommittee and said live exchange of data between the courts and police would make the criminal justice system more transparent and efficient.

Words uttered in anger no instigation to suicide: Guj HC

Source: DNA dated 26.12.2018

The Gujarat High Court has held that words uttered in a fit of rage without any intention cannot be termed as ‘instigation’ to commit suicide and granted bail to a man accused of abetment of suicide.

Notably, the man had approached the high court challenging the order of a lower court, which refused to grant him bail.

A single judge bench of the high court cited Supreme Court judgments and held that: “The offence of abetment depends on the intention of the person who abets and not upon the act which is done by the person who has abetted.”

Notably, the petitioner was accused of rape and abetment of suicide. However, during the course of the hearing for his bail plea, it was found that although rape charges were levied on him, but it was his brother who is accused of the crime. The court held that the only accusation against the petitioner was that he joined his brother in refusing the latter’s marriage with the girl.

As per the case details, the girl had threatened to commit suicide if the petitioner’s brother does not marry her after allegedly entering into a physical relationship on the pretext of marriage. Unaffected by the threat, the duo told the girl to ‘go ahead’ after which she attempted suicide by consuming some pills.

The court held: “Attempt to commit suicide was the decision of the girl. Except responding to her desire to commit suicide, no positive role in actual making of the attempt is attributed to the petitioner”. The court also clarified that prima facie, it is doubtful to attribute offence punishable under Section 306 of Indian Penal Code dealing with abetment of suicide on the “mere conduct” of the petitioner.

Eventually, the petitioner was granted bail, with the court remarking that the trial court, unfortunately, did not appreciate the legal as well as factual scenario, while declining bail to the accused.

Mother, may be

Article in the Indian Express dated December 24, 2018 regarding the Surrogacy Bill, 2016 by Ajita Banerjie. Link to this article:

http://epaper.indianexpress.com/c/35147906

A duty great and grave

Article in the Indian Express dated December 24, 2018 regarding Genocide and the law by Upendra Baxi. Link to this article:

http://epaper.indianexpress.com/c/35145407

Consumer bill to fix adulteration, false ads: Experts

Source: DNA dated 21.12.2018

Mumbai: Getting away with defective products and misleading advertisements is set to become challenging for makers and retailers/etailers of fast-moving consumer goods (FMCG), durables, electronics, automobiles etc.

The Lok Sabha on Thursday passed the long-pending Consumer Protection Bill 2018, paving way for effective protection of consumer rights and safeguarding their interests.

Speaking to DNA, Praveen Khandelwal, secretary general, Confederation of All India Traders (CAIT), said, “It is noteworthy that the bill has been passed by the Lok Sabha. Hopefully, it would be passed in the Rajya Sabha soon.”

The bill, besides strengthening the rights of the consumers and keep a watch on misleading advertisements, will also check adulteration.

The development is crucial especially in the current scenario wherein consumers are forced to go through the hassles of getting defective products replaced and/ or claiming refunds in addition to misleading deceptive ads.

The bill puts the liability of product quality on manufacturers, said Pritee Shah, chief general manager, Consumer Education and Research Centre (CERC). While e-commerce marketplaces will be responsible for sale of counterfeit products, celebrities will also be responsible, along with advertisers, for endorsing a product.

“Manufacturers will have to be diligent. They will have to mandatorily recall faulty products. In the case of misleading ads, companies will have to withdraw advertisements and bring in corrective advertisements. Celebrities will not be able to blindly endorse products,” said Shah.

When contacted, executives from HUL, ITC, Dabur, Marico, Mondelez, Godrej, Samsung, LG and Panasonic were not available for comment.

It certainly is a necessary a wake-up call for consumer goods makers to become more responsible, said N Chandramouli, chief executive officer, TRA Research, a brand insight company. The onus gets clearly pinned on the company, but more importantly, if convicted, the brand’s trust also will get impacted.

“Consumer should be the ultimate yardstick. However, there can be truant customers too, and companies will have to deal with a small portion of such false claims. All-in-all, if the companies become more responsible towards consumers, it is a good move,” said Chandramouli, adding: “We’ve all been taken in by claims like ‘strongest’, ‘best’, ‘improved’, ‘extra iron added’ etc so far. Now it’s time for brands to be cautious about claims like this,” said Chandramouli.

Lok Sabha passes Consumer Protection Bill

Source: DNA dated 21.12.2018

Three years after its introduction, the landmark Consumer Protection Bill finally got the Lok Sabha’s nod on Thursday. All 11 members, who participated in the brief discussion, supported provisions of the Bill, but apprehended that it would encroach upon the powers of the states in making appointments to Consumer Commissions. They also proposed that Consumer Disputes Redressal Commissions should have judicial members.

The Bill is aimed at providing a mechanism for redressal of complaints regarding defects in goods and deficiency in services, thus strengthening the rights of consumers. The proposed law that replaces the Consumer Protection Act, 1986, will now go to the Rajya Sabha for its approval.

Initiating the debate on the Bill, Pratima Mondal of the Trinamool Congress said the proposed Consumer Disputes Redressal Commissions should have judicial members.

She stressed that endorsement of products by celebrities should be totally barred, as they do not have the expertise to verify claims made in advertisements. Tathagata Satpathy from the BJD, said legislation like these should have a definite time-frame for review in the House.

The new provisions state that consumers can now seek penalties against misleading advertisements and their endorsers. Most importantly, the proposed law covers e-commerce where it defines direct selling and electronic service provider. The Central government may prescribe rules for preventing unfair trade practices in e-commerce and direct selling.

The Bill also sets up a Central Consumer Protection Authority to promote, protect and enforce consumer rights and can issue safety notices for goods and services, order refunds, recall goods and rule against misleading advertisements. The Bill defines contracts as ‘unfair’ if they significantly affect the rights of consumers. It also defines unfair and restrictive trade practices and provides for mediation cells attached to District, State and National Commissions for out-of-court settlements.
Further, pecuniary jurisdiction of the consumer has been increased wherein district courts can hear a case up to Rs 1 crore, state commission between Rs 1 crore and up to Rs 10 crore, and national commission above Rs 10 crore. Penalties have been increased from including imprisonment up to three years, or a fine not less than Rs 25,000 extendable to Rs 1 lakh, or both, in non-compliance of Commission orders. Earlier, the fine was only up to Rs 10,000.
Under the Bill, aggrieved consumers can also file complaints through email.
Replying to queries by MPs, Union Minister for Consumer Affairs Ramvilas Paswan said the Bill will establish authorities for timely and effective administration and settlement of consumers’ disputes. He said the legislation has not been amended for three decades and need changes for strengthening consumer rights.

The High Court verdict on the 1984 riots is historic

Source: Hindustan Times dated 21.12.2018
Priya Pillai ( She is an international law expert who has worked at the war crimes tribunal for the former Yugoslavia and also on the issue of mass atrocities in India)

Framing the atrocities as crimes in the domestic legal system is key, and helps redress the survivors’ losses

The Delhi High Court verdict on December 17, relating to the pogrom against Sikhs in 1984 is historic for many reasons. This is a significant judgment of a court in India inquiring into the legal framework relating to mass atrocity crimes, which include crimes against humanity, war crimes and genocide. The importance of this legal analysis is clear in the words of justices S Muralidhar and Goel, who emphasise the “larger context” and state that such cases “…are indeed extraordinary and require a different approach”. Part of this difference relates to the organisation and planning by political actors, the targeting of communities, along with the connivance of law enforcement agencies.

The court traces the development of the concept of crimes against humanity, from the Nuremberg trials after the second world war, to international tribunals such as those for the former Yugoslavia and Rwanda, and the approach of the Supreme Court of Bangladesh regarding crimes committed in 1971. Crimes against humanity are also defined in Article 7 of the Rome Statute (establishing the International Criminal Court) and consist of a “widespread or systematic attack directed against any civilian population” and include murder, extermination, persecution, torture, rape and other crimes within its fold. While the court does not delve into the definition and elements of the crimes, and apply them directly to the case at hand, it finds that the that the crimes committed against Sikhs fit within this pattern and should be considered crimes against humanity. The court has honed in on the key components of crimes against humanity — that these crimes are not committed in a ‘normal context’, and that there is an underlying plan and intention in the commission of these offences. Previously, there was a requirement that crimes against humanity apply in the cases of armed conflict — but due to international legal developments, this is no longer the case, and such crimes are applicable in non-conflict contexts. The court also states, “There has been a familiar pattern of mass killings in Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha in 2008, in Muzaffarnagar in UP in 2013 to name a few.” As the International Law Commission is drafting a treaty on crimes against humanity, the court wryly observes that “India, in view of her experience with the issue, should be able to contribute usefully to the process”.

However, in India, neither crimes against humanity nor the crime of genocide are detailed within the domestic criminal law, meaning that individuals cannot be prosecuted for these international crimes. The collective nature of these crimes, as well as the particular elements of these crimes, are not reflected in any domestic law provisions. While the offences under the Indian Penal Code such as murder, assault, arson, rape, and others are used, they are not the same and do not capture what crimes against humanity and genocide encapsulate — the planning, the targeting, and the totality of the crimes committed and the context in which they are committed. The court highlights this absence in domestic law as a loophole that must be “addressed urgently”. In fact, India has signed and ratified the Genocide Convention, which places a legal obligation on the state to ensure the ability to prosecute this crime. However, on the floor of Parliament in 2002, the official response was that the domestic law is sufficient for such crimes. This is legally incorrect. Signing up to the obligations of the International Criminal Court and including the definitions of these international crimes into domestic law is another way that such mass atrocity crimes could become part of the fabric of domestic law — but there is resistance to adhere to this international treaty, which is meant to ensure individual accountability by means of an international court.

For too long, there has been impunity for the commission of such mass crimes in the Indian context, whether by apathetic or nonexistent investigation, or laws that shield perpetrators requiring sanction for prosecution, or simply the non-implementation of international legal obligations. The ability to frame these atrocities as crimes within the domestic legal system is a necessary and essential component — and an attempt to begin to redress the terrible losses of survivors.

Surrogacy Bill, then and now

Article in the Indian Express dated December 24, 2018 regarding the Surrogacy Bill, 2016 by Abantika Ghosh. Link to this article:

http://epaper.indianexpress.com/c/35072524

‘Minors booked for attempt to murder can’t be tried as adults’

Source: Hindustan Times dated 20.12.2018

• Kanchan Chaudhari kanchan.chaudhari@hindustantimes.com
• 
  
• MUMBAI: Juveniles booked for attempt to murder cannot be tried as adults under provisions of the Juvenile Justice (Care and Protection of Children) (JJ) Act, 2015, the Bombay high court (HC) held last week.

  The court was hearing a plea filed by the three accused challenging an order by the juvenile justice board at Sangli

  In January, the JJ board had referred Saurabh Nangre, Kunal Nangre and Vijay Nangre – who had completed 17 years of age at the time of the incident – for psychological evaluation. On July 13, the board, upon receipt of the report, referred them to the children’s court to be tried as adults.

  Under section 19 of the new JJ Act, the children’s court is required to reassess whether the children in conflict with law are required to be tried as adults or not. If it decides to try them as adults, the court itself conducts the trial. It keeps the children in protective custody till the age of 21, whereafter they are shifted to regular jails to serve the rest of their sentence.

  The accused challenged the JJ board’s decision, contending that they had not committed a ‘heinous crime.’
  Accordingly, they cannot be referred to the children’s court and must be tried by the board itself as children in conflict with the law. As per the JJ Act, a ‘heinous crime’ is defined as one that attracts a minimum punishment of seven years.

  Meanwhile, the Indian Penal Code (IPC) prescribes no minimum punishment for the charge.

  Justice Mridula Bhatkar struck down the district board’s order on the ground that attempt to murder is not a heinous crime, as contemplated under the JJ Act, 2015.

  “Under section 307 of the IPC, minimum punishment is not prescribed. But punishment may extend to ten years and fine, and if hurt is caused to any person, then punishment can be extended up to life imprisonment,” said the judge.

  “Thus, due to the benchmark of minimum punishment of seven years or more, section 307 of IPC cannot fall within the ambit of heinous offences,” she said.

‘Make arbitration must for commercial disputes to reduce pendency in courts’

Source: Times of India dated 20.12.2018

TIMES NEWS NETWORK

New Delhi:
A finance ministry study has found that it took an average 20 years for a property dispute to be resolved, and it would take 324 years just to clear the backlog of cases (2.90 crore) at the current rate of disposal. Referring to the above facts, Niti Aayog in its strategy document for New India @75 has proposed setting up an All-India Judicial Service for recruitment of judges by the Union Public Service Commission (UPSC) and creating a cadre-based service in the subordinate judiciary to address huge pendency and inefficiency in judicial administration.

The panel, in its policy document, has proposed to make it necessary to go through mandatory arbitration and mediation before approaching courts. “A mechanism may be considered whereby litigants in a commercial dispute must first be made to exhaust the remedy of pre-institution mediation and settlement. However, it should be ensured that such cases do not create one more stratum in litigation,” the document said.

Apart from an all-India exam to recruit judges, the panel also proposed a performance index for judges and a separate state-wise index for ease of getting justice, besides introducing an administrative cadre in the judicial system. “To maintain judicial independence, the cadre should report to the chief justice in each HC,” it added. It suggested implementing court process automation for electronic court and case management, including management of schedules and migration of all courts to a unified national court application software.

On ease of doing business, it sought a “single window” system in all states to provide a single point of contact between investor and government and facilitate all licences and approvals. It also said for efficient approval process, a system of accountability for major stakeholders like inspection bodies, testing labs etc should be developed. To ease environmental clearances, it suggested using GIS-based maps to create preapproved land banks for manufacturing facilities. In such land banks, standards could be laid down relating to environmental requirements, building bylaws and safety norms.

Bullet found in man’s ashes saves another from prison

Source: Times of India dated 20.12.2018

Dhananjay.Mahapatra@timesgroup.com

New Delhi:
A bullet killed a man, but recovery of a bullet from the ashes after cremation of the deceased saved another from serving a life term in prison. The Supreme Court acquitted one Wasif Haider of murder charge after finding glaring discrepancies in the police story about the bullet. The police chargesheet against Haider had relied on the postmortem report which said there were two bullet wounds on the deceased’s body, one caused by entry of the bullet and the other by its exit.

However, when the body was cremated, a bullet was recovered from the ashes, casting serious doubt on the police theory. A bench of Justices N V Ramana and Mohan M Shantanagoudar said, “It is surprising that the postmortem report describes that there were two wounds in the body of the deceased, one being the entry and the other being the exit wound. Allegedly, a bullet was recovered from the ashes of the deceased.

“The forensic laboratory report shows that this bullet was charred and blistered. This recovery... is irreconcilable with the postmortem report which states an exit wound, implying that the bullet had left the body. The aforesaid fact raises a suspicion on both the postmortem report and the forensic laboratory report as they are incompatible with each other.”

The SC said the bullet that was recovered from the ashes could not be proved to have been fired from the pistol allegedly recovered from Haider. “Even the recovery of the pistol is doubtful. While prosecution case reveals that one .38 bore Colt pistol was recovered from the possession of Haider, evidence of police officer Rajendra Dhar Dwivedi reveals that a .32 bore Colt pistol was recovered pursuant to his arrest. The police also contradicted itself by claiming that two pistols of .38 bore were recovered from Haider,” said Justice Ramana.

The trial court had convicted Haider of murder and sentenced him to life imprisonment. But Allahabad High Court acquitted him, which was challenged in the SC by the state government.

‘Justice’ is Webster’s word of the year

Source: Times of India dated 18.12.18

Racial justice. Obstruction of justice. Social justice. The Justice Department. Merriam-Webster has chosen “justice” as its 2018 word of the year, driven by the churning news cycle over months and months.

The word follows “toxic”, picked by Oxford Dictionaries, and “misinformation”, plucked by Dictonary.com.

Peter Sokolowski, Merriam-Webster’s editor at large, said on Monday that “justice” consistently bubbled into the top 20 or 30 lookups on the company’s website, spiking at times due to specific events but also skating close to the surface for much of the year.

While it’s a common word people likely know how to spell and use correctly, Sokolowski pointed to other reasons that drive search traffic. Among them is an attempt to focus a train of thought around a philosophical problem, or to seek motivation.

The designation for “justice” came soon after President Trump’s ex-fixer, Michael Cohen, was sentenced to three years in prison for crimes that included arranging the payment of hush money to conceal his boss’ alleged sexual affairs. He told a judge he agreed to cover up Trump’s “dirty deeds” out of “blind loyalty”.

Earlier in the year, Kim Kardashian visited the White House twice to discuss prison and sentencing reform with Trump. Sentencing for drug crimes, a loosening of cannabis laws, a Tesla probe, the Mueller investigation into the Trump campaign: Justice will remain top of mind into the new year.

Often, when Trump tweets about the department of justice, he uses simply “Justice”. On August 1, when he tweeted his wish for then-AG Jeff Sessions to stop the Mueller probe, searches spiked significantly. Searches for “justice” throughout the year, when compared to 2017, were up 74% on the site , Sokolowski said.

Statute makes space for diverse identities: Justice Chandrachud

Source: Times of India dated 18.12.18
Swati.Deshpande@timesgroup.com

Mumbai:

“Our Constitution works even for those who may not believe in it,” said Supreme Court judge D Y Chandrachud, underlining the significance of the Constitution in a democracy.

He elaborated his point with an anecdote of a scientist who told a friend how a horseshoe on his door worked even though he wasn’t superstitious.

Justice Chandrachud’s observations, made while delivering the Justice KT Desai Memorial lecture at the central court hall of Bombay HC on Monday, drew applause from the distinguished gathering of high court judges, both present and past, as well as former SC judges and lawyers.

Speaking on a subject close to his heart, he went on to add inclusivity was one of the mainstays of the Constitution. He said while delivering the verdict on section 377, he believed “we” in “We the people” was an “ever inclusive and ever expansive we.”

Globalisation has meant a shift in definitions of identity and citizenship. “While state nationalism remains a strong force, many other modes of connection are shaping people’s sense of personal and collective identities.”

He added the burgeoning of multi-faceted and intersectional identities, accompanied by an acknowledgment of the inherent fluidity in various identities, lends to the requirement of a Constitution that keeps pace with these identities.

Increasingly so, the Constitution is recognising these diverse identities. An important example is the recognition of different gender and sexual identities. While the break from a heteronormative framework has been gradual, the courts have played an important role in recognising the autonomy of individuals within the Constitution to determine their orientation as well as gender identity, he said.

Juvenile board must try 16-18 year olds if not involved in heinous crimes: HC

Source: Times of India dated 18.12.18
Shibu.thomas@timesgroup.com
Mumbai:

A child between 16 and 18 years who has not committed a heinous offence cannot be tried as an adult by a children’s court, the Bombay high court has clarified.

Justice Mridula Bhatkar struck down an order of the Juvenile Justice Board allowing the case of three 17-yearolds charged with attempt to murder to be transferred to the children’s court. The court pointed out that the offence of attempt to murder was not a heinous offence as the punishment prescribes a maximum jail term of 10 years and no minimum imprisonment.

Under amendments brought to the Juvenile Justice (Care and Protection of Children) Act, a minor between 16 and 18 can be tried as an adult if a heinous crime has been committed. The special law defines heinous offence as any crime with a minimum punishment of seven years in jail.

If a minor is in conflict with the law or is below 16 and has committed a heinous offence, such cases are to be decided by the Juvenile Justice Board (JJB). The board, if it holds the child guilty, can place him in a special home for a maximum period of three years.

However if a minor between 16 and 18 has committed a heinous crime, the board should send such children for a preliminary assessment by a panel of psychologists. If the panel concludes that the child has the capacity to commit the crime and understand the consequences of the alleged offence, the board can transfer the case to the children’s court. On being held guilty, the children’s court can sentence the accused to a “place of safety” till he turns 21 and he will serve the remainder of his term in an adult prison.

In the present case, the board sent the 17-year-olds for preliminary assessment and ordered for the case to be transferred to the children’s court. The lawyers for the accused argued that if they are tried by the children’s court, grave prejudice would be caused to them in view of the stricter punishments.

The HC agreed that attempt to murder does not qualify as a heinous offence. “There was no need to refer to the matter or conducting any preliminary assessment with regard to the mental or physical capacity to commit such offences or ability to understand consequences of the offences,” said the high court.

Adoptive father can’t replace biological dad on birth certificate, rules Guj court

Source: Times of India dated 17.12.2018

Saeed Khan TNN

Ahmedabad:
A local court here has refused to replace the name of a child’s biological father with that of the adoptive parent on the birth certificate, saying that it was the “legal right of a child to preserve his or her identity — including nationality, name and family relations — as recognised by law”.

The adoptive parents had sought a change in the father’s name on the child’s birth certificate after the mother divorced her first husband and remarried. When the case went to the sessions court, it said: “It is not legal and valid to replace the name of the biological father or mother with that of adoptive parents...”

The sessions court quoted the Madras HC, which had in a similar case observed, “Assuming that there is yet another marriage, as it happens without much ado in western societies, is it possible to change the name of the parents every time there is a divorce followed by a fresh marriage?”

The court had, in fact, two different cases of this nature before it. In the first case, residents of Ranip in Gujarat, Jagdish Patel and his wife Vaibhavi, wanted to remove the name of the biological father, Kamleshkumar Jain, from the birth certificate of their daughter Priyanshi. Vaibhavi had married Jagdish after divorcing Jain. The court flatly refused to order the change.

In the second case, Bopal residents Bhanuprasad Chaudhary and his wife Shilpa wanted to remove the latter’s first husband Ghanshyam Patel’s name from the birth certificate of their daughter Manali. Shilpa had remarried after her first husband died. In this case too, the court turned down their request.

The court clarified that inserting the names of the adoptive parents was valid in cases of adoption of children abandoned by their biological parents. But in cases of divorce, it “poses a lot of difficulties”.

“The court cannot overlook the long-term needs and rights of these children. The right of a child to inherit the estate of its biological father will get defeated by a direction to effect corrections in the statutory records,” the court said.

Jammu & Kashmir Roshni Act

Article in the Indian Express dated December 3, 2018 regarding review of the Jammu & Kashmir Roshni Act (now repealed). Link to this article:

http://epaper.indianexpress.com/c/34549187

5 years after the Sexual Harassment at the Workplace Act

Article in the Indian Express dated December 3, 2018 regarding review of five years of the Sexual Harassment at the Workplace Act. Link to this article:

http://epaper.indianexpress.com/c/34549015