Training for law students to tackle cybercrimes and ragging on campus

Source: Hindustan Times dated 27.09.2019

MUMBAI : The Maharashtra State Legal Services Authority and Mumbai District Legal Services Authority (DLSA) plan to introduce a training programme for law students who want to become paralegal volunteers and help their peers deal with incidents of ragging and cyberbullying on campus.

Yatin Game, secretary of the Mumbai DLSA, said the authority conducted a seminar on anti-ragging and cybercrime at KC College, Churchgate, on Thursday. “After the seminar, we handed out forms for those who wish to register for the training programme,” said Game. “The seminar was held under the guidance of justice SC Dharmadhikari. Although law colleges are expected to have centres for such training, students often do not get enough on-ground exposure for paralegal training.”
Around 600 students from 33 colleges participated in the event. “Once the students understand the basics, they can undergo the training and then help their peers,” said Kavita Lalchandani, principal of KC Law College.

Last year, the DLSA had held a paralegal volunteer training workshop for 30 transgender persons, following which they were expected to help members of their community and provide aid at police stations, assist lawyers and help the authority during Lok Adalat sessions.

Immovable assets can’t be attached during probe: SC

Source: Hindustan Times dated 25.09.2019

The Supreme Court ruled on Tuesday that police or other law-enforcement agencies have no authority under the code of criminal procedure (CrPc) to seize any immovable property on the suspicion that it had been purchased or set up with the proceeds of an illegal transaction or criminal activity.

A bench led by Chief Justice of India Ranjan Gogoi held conferring such powers to police officers would have “serious consequences for the citizens.”

The bench said: “In case and if we allow the police officer to ‘seize’ immovable property on a mere ‘suspicion of the commission of any offence’, it would mean and imply giving a drastic and extreme power to dispossess etc. to the police officer on a mere conjecture and surmise, that is, on suspicion, which has hitherto not been exercised.”

The apex court upheld the Bombay high court ruling that immovable property cannot be seized by the police during the course of investigation.

According to Section 102 of the CrPC: “Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence…”

The HC had interpreted the term immovable property under this section as houses, office or lands.

The SC said that although the section postulates seizure of property, it does not include immovable property.

“Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of an immovable property in order to seize it. In the absence of the Legislature conferring this express or implied power under Section 102 of the Code to the police officer, we would hesitate and not hold that this power should be inferred and is implicit in the power to effect seizure,” held the court.

The law, however, does not bar or prohibit the police officer from seizing documents/papers of title relating to immovable property, as it is distinct and different from seizure of immovable property. “Disputes and matters relating to the physical and legal possession and title of the property must be adjudicated upon by a Civil Court,” held the court.

SC: Cops can’t seize immovable property in criminal case probe

Source: Times of India dated 25.09.2019

The Supreme Court on Tuesday ruled that police cannot attach immovable properties of an accused during investigation in a criminal case as seizure of such property would not facilitate probe though collection of evidence or material to be produced during trial.

Enumerating how empowering police to attach immovable property may lead to an absolutely chaotic situation, a bench of Chief Justice Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna said if there is a physical fight between the landlord and tenant over rented premises, police would be entitled to seize the property making a mockery of the rent laws.

“The power of a police officer under CrPC Section 102 to seize any property would not include the power to attach, seize and seal an immovable property,” the bench said. The court, however, said this would not bar or prohibit police from seizing documents/ papers of title relating to immovable property.

“Section 102 of CrPC empowers a police officer to seize any property which may be alleged or suspected to have been stolen. Theft can take place only of movable property and not of immovable property. In my view, the word ‘seized’ has been used in the sense of taking actual physical custody of the property,” Justice Gupta said in his separate but concurrent judgment.

He also stated that sub-section 3 of Section 102 provides that where it is difficult to conveniently transport the property to the court or there is difficulty in securing proper accommodation for the custody of the property, the property can be given to any person on his executing a bond. “This per se indicates that the property must be capable of production in court and of being kept inside some accommodation. This obviously cannot be done with immovable property,” he said.

Activists demand social accountability law: Say RTI violated if information not exempt under it

Source: DNA dated 24.09.2019

RTI activist and people working in the different social fields across Maharashtra gathered to demand a comprehensive social accountability law in the state. The need for it was felt to better publicise government schemes, ensure intended beneficiaries are getting it, accountability and transparency in the process.

The demand was made at the meet ‘State level consultation on initiating discussion on building discourse of demanding Comprehensive Social Accountability Act in Maharashtra’ that was jointly organised by SATHI and state accountability resource unit (SARU) at the YMCA, Mumbai Central, on Monday. A book on the social accountability in public service, existing mechanism and way forward was also released.

The meet was attended by Rakshita Swamy who heads SARU, Nikhil Dey, senior activist Mazdoor Kishan Shakti Sanghatna (MKSS), Rajasthan, Shailesh Gandhi, former central information commissioner, Brian Lobo, Dr. Nitin Jadhav, and Dr. Abhay Shukla from Sathi among others.

Swamy and Dey spoke about the community participation in social audit, law that passed in Meghalaya and one that is to come up in Rajasthan. They also spoke about the process and movement behind them. In Meghalaya, the social accountability law covers 18 districts and brings 26 schemes under social audit.

“Fight for information and accountability is of over 30 years. The Rajasthan government has announced Comprehensive Social Accountability law in the budget speech. Such a law needs to be there in all states,” said Dey.

Dey also spoke about the sustained efforts of activist and people that have led to the Jan Soocha portal in Rajashtan that gives details of all schemes and beneficiaries. “RTI Act is violated the moment information is not provided suo motu as per RTI Act unless it is exempt under provisions of RTI Act,” said Dey.

“The idea of the meet was to brainstorm and see how things are functioning in Maharashtra. Speakers from different fields came and mentioned about the existing mechanism and how it can be improved,” said Shukla.

The organisers said that the feedback received stated that mechanism is not in place or not well functioning. “There is no social audit mechanism functioning in places where law has provided for. That is what we got from the feedback,” said Jadhav.

Gandhi said that until social accountability law comes into place, existing laws should be looked at. “Till such time we do not have a social accountability law, we can ask for implementation through other laws like the ones that talks about clearing files in 45 days, RTI  and others. If we are asking for implementation of law, they cannot say no to it,” said Gandhi.

Family jewellery cannot be taxed

Source: DNA dated 24.09.2019

By Arvind Rao (Sebi Registered Investment Adviser)

In an interesting case that came up for hearing before the Delhi Tax Tribunal, the taxman had conducted search procedures at a taxpayer’s residence as well as her bank locker in the year 2012. As required under the procedure, the taxpayer filed her return of income declaring a total income of Rs 6.04 lakh under the head ‘other sources’ for the year under consideration. However, during the course of search, gold jewellery of 1,225 gms worth Rs 25.87 lakh and silver utensils of 1,283 gms worth Rs 0.58 lakh were found from the residence and locker of the taxpayer.

The taxpayer submitted that out of the total jewellery found, 580.4 gms of gold was her streedhan given by her parents and relatives at the time of her marriage in 1990. Out of the jewellery found in the locker, gold jewellery of 598.8 gms and all the silver utensils/coins belonged to her mother-in-law who had passed away in 2005 and was then passed on to the taxpayer. Further, the taxpayer relied on a previous decision by the Delhi High Court wherein it had held that streedhan in the form of jewellery received during the span of 25 years cannot be deemed as unexplained investments under the provisions of the Income Tax Act (‘the Act’).

The tax officer considered the taxpayer’s submissions and held that she had failed to satisfactorily explain the source of acquisition for the gold jewellery and silver utensils. And an amount of Rs 10.65 lakh was added back as income towards unexplained investments of the taxpayer. The first-level appellate authority did not find any merit in the appeal by the taxpayer and agreed with the tax officer’s view.

When the matter came up for hearing before the Delhi Tax Tribunal, the taxpayer argued that it is neither practically desirable nor legally permissible to make the stated addition on the ground of the lack of documentary evidence when it’s an undisputed position that her mother in law’s marriage had taken place 53 years prior to the search and her own marriage had taken place 20 years ago. She relied on a previous decision of the Delhi High Court, where the honorable Court had accepted jewellery of 906.60 gms in the case of a married lady without any documentary evidence, as denying similar explanations provided by the lady, in that case, would result in overlooking the realities of life.

On the basis of the facts of the case, the tax tribunal observed that the jewellery found during the course of search operations was actually from the locker held by the father-in-law and husband of the taxpayer and hence the addition of income in the hands of the taxpayer is not correct. Referring to the decisions relied upon by the taxpayer in her defense, the Tribunal held that it is a normal custom for a woman to receive jewellery in the form of streedhan or on other occasions such as birth of child, etc.

Judge judged not only by rulings but also by character: SC

Article in the Indian Express dated September 23, 2019 regarding Judicial integrity. Link to this article:

http://epaper.indianexpress.com/c/43923875

Historic - SC to get permanent five-judge constitution bench: Will Hear Cases Involving Statute & Complex Laws

Source: Times of India dated 21.09.2019

Dhananjay Mahapatra - New Delhi
For the first time in its nearly 70-year-long history, the Supreme Court is set to realise the dream of the Constitution-framers by creating a permanent five-judge Constitution bench, to be available round the year to adjudicate complex constitutional questions and interpret laws.

Starting with a strength of eight judges in 1950, including the Chief Justice of India, the judges’ strength is now 34, with a recent amendment by Parliament after CJI Ranjan Gogoi wrote to Prime Minister Narendra Modi outlining the urgent need for an increase in SC judges’ strength in proportion to the increase in litigation.

This gave CJI Gogoi freedom to decide that from October 1 onwards, the SC will have a permanent five-judge bench. As per earlier practice, a two-judge bench, if it found an important question of law in a case, referred the issue to a three-judge bench, which referred certain select important cases for adjudication by a Constitution bench.

The CJI then used to weigh pendency of cases, engagement of judges in other important cases which are at a stage of being partly heard and then select five judges who could take up Constitution bench matters without disturbing the rate of disposal. Over last three decades, setting up of five-judge benches has been a challenging task for successive CJIs, given the exponential increase in filing of cases, triggered by numerous SC decisions expanding the writ jurisdiction to create the instrument of PIL and widening the span of fundamental rights.

As head of collegium, CJI appointed 14 SC judges

The SC also has 164 matters referred by two-judge benches to three-judge benches. CJI Ranjan Gogoi has decided to set up five permanent three-judge benches to take up these long pending 164 cases. Till now, only one or two threejudge benches functioned daily. But, with routine workload assigned to these benches, it prevented them from devoting adequate time to hear detailed arguments in these cases.

PILs raising important questions of law, scams and human rights violations have been consuming significant judicial time making it difficult for successive CJIs to disengage judges from such issues and include them in Constitution benches, a process that would block five judges for a long period.

In the US and certain other countries, all the judges of the Supreme Court sit together and decide those petitions which are certified by the full court to be of constitutional importance. Nearly 90% of the cases filed in US SC are rejected at the threshold and never heard by the court.

CJI Gogoi, as head of the collegium, would be credited for appointing a record 14 judges to the SC. During his tenure as CJI, the SC twice achieved its full strength—of 31 judges in May this year and again of 34 judges now. With four new judges scheduled to take oath on Monday, the CJI worked out a scheme by which SC would truly discharge its duties as a constitutional court with a permanent fivejudge bench.

There are 37 matters pending for adjudication by Constitution bench. The Ayodhya issue had been gathering dust since 2010 and CJI Gogoi decided to take it up despite the option of keeping pending a case that is termed as most important in judicial and national history. Even during the hearing of the Ayodhya issue, the CJI had to squeeze out an hour daily to ensure that chambers for the new judges got ready prior to them taking oath to ensure that a full strength SC functioned smoothly. With the setting up of a permanent five-judge Constitution bench and five three-judge benches, as many as 20 of 34 benches would be engaged in adjudicating constitutional questions and important matters.

SC paves way for RTI against institutions, hospitals & NGOs

Source: DNA dated 18.9.2019

By Abraham Thomas

Citizens’ right to know took a big leap on Tuesday after the Supreme Court held that NGOs and public bodies having financial transactions with the government will have to provide information under the Right to Information Act.

The ruling is likely to force several hospitals and educational institutions to come clean on their affairs. These organisations had so far secured immunity from RTI taking advantage of the loosely worded definition of “public authority”.

Under the Act, a public authority is one which is established by or under the Constitution, a Central or state law, or by an executive notification issued by any government. It also covers any “body owned, controlled or substantially financed” or “NGO substantially financed”.

The court injected clarity as it heard a batch of appeals by the DAV College Trust and Managing Society of Chandigarh and two colleges of Kerala - Sree Narayana College and Mar Dionysius Trust against orders of the High Courts of Punjab & Haryana and Kerala.

A bench of Justices Deepak Gupta and Aniruddha Bose said, “We have no hesitation in holding that an NGO substantially financed, directly or indirectly, by funds provided by the appropriate government, would be a public authority amenable to the provisions of the RTI Act.”

The judges went on to elaborate, “A society which may not be owned or controlled by the government may be an NGO but if it is substantially financed directly or indirectly by the government, it would fall within the ambit of Section 2(h)(ii).”

According to the court, “substantial” did not necessarily have to mean “major portion or more than 50 per cent” but could be in the form of “land in a city given for free or on heavy discount to hospitals, educational institutions or such other body”.
In the case of DAV, the SC found that they annually received a grant of over Rs 15-19 crore, which in its opinion was substantial. In the case of remaining colleges, the judges left it for the High Court to determine whether they would fall in the bracket of “substantial financing”.
Justice Gupta said that the purpose of the Act was to bring about transparency and probity in public life. “If NGOs or other bodies get substantial finance from the Government, we find no reason why any citizen cannot ask for information to find out whether his/her money which has been given to an NGO or any other body is being used for the requisite purpose or not.”

Opinion of Shailesh Gandhi, former central information commissioner:

Transparency for public fundsThe position in the RTI Act that private organisations and NGOs which are substantially funded by government are public authorities and are covered by the RTI Act has been very clear since the beginning of the law. Almost all adjudicatory bodies were accepting this. The private organisations in this case appeared to have represented a very convoluted meaning of the words of the law which has been rightly struck down by the SC. The key principle of RTI is that wherever public money is involved, citizens have the right to know.

‘Most law graduates skipping litigation due to high NLU fees … senior lawyers are stingy when it comes to paying juniors’

Source: Times of India dated 18.9.2019

Faizan Mustafa , vice-chancellor of National Academy of Legal Studies and Research (Nalsar) and president of Consortium of National Law Universities, which conducts the common aptitude test and is responsible for improving standards of legal education in India, talks to Preeti Biswas about the challenges in improving the quality of legal education in India. He feels the fee structure influences the employment choices made by young lawyers:

Why are most law graduates seeking jobs in corporates instead of taking up litigation?

The reason behind establishing national law universities (NLUs) was to improve quality of bar and bench, and produce better lawyers and judges. Since governments are not funding NLUs, they largely act as self-financing institutions, charging a high fee. A majority of students take up loans, and join corporate firms to pay them back as senior lawyers are not coming forward to make attractive payments to junior lawyers who join them. Their own fees are high but they are stingy when it comes to paying juniors.

What is driving up the fee structure in NLUs?

Ideally, the Centre should support NLUs in a big way. However, after the planned system came to an end, NLUs are not receiving funding from the Centre. Since they are small institutions, they are not a priority of the state government either. There is a huge resource crunch which most NLUs are facing. With a new pay commission, increase in dearness allowance, increments in addition to bearing cost of goods and services tax, there has been fee hike in some institutions. We are trying to persuade the governments that there is huge public interest involved in legal education and government should not shy away from funding NLUs.

What would you attribute as the cause of the gap between national institutions and local institutions?

In a sea of mediocrity, we have a few islands of excellence in NLUs. We don’t appreciate the difference between these 21 NLUs and 1,400 law institutions in the country. The NLUs are barely admitting 2,200-2,400 students of the 60,000 candidates who appear for the common law aptitude test (CLAT) every year. Unless the quality of education in the 1,400 institutions improves, legal education at large will not improve. Therefore, every NLU should take up role of mentoring institutions which fall in their respective states.

Has the five-year model of law education in India met its purpose?

Yes, I think the five-year model has met its objective since it has revived the prestige of law as a discipline. Earlier, people took up law as a last option. But now, there are students who are giving a miss to engineering and medicine and pursuing law. However, the five-year model has resulted in a lack of diversity as students are admitted in Class 12. In early days, we had engineers, doctors and postgraduates pursuing law due to which the conversations around law were much varied and diverse.

In law studies, which areas of specialisation are gaining popularity?

There are upcoming branches such as intellectual property rights, shipping law, aviation law, telecommunication law, space law, water law and disaster management law.

A few decades ago, human rights too was an upcoming discipline. Nobody talks about human rights as a subject now. It’s a shame that human rights has lost relevance in law schools.

What are the trends that are reshaping legal education system in the country in terms of technology?

It is difficult to say that law schools are not using or benefitting from technological developments. IT law, cyber law, AI are also being taught in schools. Recently, a PhD was done on law related to drones in Nalsar. Generally, technology marches ahead and law follows. We would like to have law schools which do not lag in terms of offering courses as technology surges ahead.

What are the key reforms that can be expected in legal education?

The legal acumen section in CLAT is immoral. We have suggested that the legal acumen section should either be dropped or differently done. The consortium had recently decided that major portion of the CLAT fee will be given to different NLUs so that they offer student scholarships, improve amenities, e-resources, etc. We don’t do justice by conducting the exam only in English. Those not comfortable in English are excluded from these elite institutions. We have to find a way out to improve diversity by conducting CLAT in other languages.

Civil Code: the debate, the status

Article in the Indian Express dated September 18, 2019 regarding Uniform Civil Code by Faizan Mustafa (Expert in Constitutional Law). Link to this article:

http://epaper.indianexpress.com/c/43721129

Not in the spirit of the Constitution

Article in the Indian Express dated September 18, 2019 regarding Uniform Civil Code by Tahir Mahmood (Former Chairman of National Minorities Commission and Member, Law Commission of India). Link to this article:

http://epaper.indianexpress.com/c/43721047

Bombay HC tells serial litigant to pay CISCE Rs 5 lakh

Source: Times of India dated 06.09.2019

By Rosy Sequeira

MUMBAI: The Bombay high court on Thursday imposed a cost of Rs 5 lakh on a serial litigant for misusing the court's orders to raise money on a crowd-funding site to "fight corruption" in schools affiliated to the Council of Indian School Certificate Examinations board (CISCE).


A bench of Chief Justice Pradeep Nandrajog and Justice Bharati Dangre also directed the board to file an FIR for extortion against Dombivli resident Sapan Shrivastava. Bengaluru-based crowd funding platform Milaap Social Ventures India Private Limited has been directed to block the page put up by him seeking funds.

The order came on Shrivastava's PIL to direct filing of a criminal case against the board for cheating and conspiracy. He contended CISCE, which operates 2,200 schools across India and 200 schools in Maharashtra, hid the fact that it's not recognised by the HRD ministry "since last 50 years". He claimed he learnt through RTI the Centre recognises only CBSE and NIOS boards.

The judges pointed out that though the RTI reply states that since education falls under the Concurrent List, boards are also set up by states, he moved against CISCE without checking with the states.

Senior advocate Raju Subramaniam explained that CISCE is recognised by almost all states and said Shrivastava had "threatened" some schools. He added that Shrivastava has been crowd-funding by presenting himself as "championing the cause of education" and putting up the court's orders. Shrivastava said "crowdfunding was for a social cause".

The judges saw it as "yet another case of frivolous PIL misusing the process of this court" and decided "strict action is required to be taken against the petitioner". Dismissing the PIL, the judges directed Shrivastava to compensate CISCE within four weeks and asked the board to file an FIR of extortion against him. They also directed the high court registry not to entertain any petition from him until he files proof of the cost paid.

When Subramaniam said CISCE would not like to accept the amount, the judges said it could donate it to a student fund. Noting that Shrivastava's webpage is on Milaap, they directed it to block it since he is using it to generate funds by misusing the orders of this court. Milaap co-founder Anoj Vishwanath said a user had pointed out a discrepancy in Shrivastava's petition in July, and it has been blocked since then.

Creating a new legal regime for ‘platforms’

Source: Hindustan Times dated 06.09.2019

By Ananth Padmanabhan (Visiting fellow with the Centre for Policy Research, New Delhi)

The idea of safe harbours was meant to protect digital intermediaries. It is time to now find a new balance

In 2010, professor Tarleton Gillespie called out the astuteness behind YouTube’s appropriation of the term “platform” to reference its activities. As Gillespie rightly noted in an article in New Media & Society, multiple meanings of this word conveniently served to assume the status of champions of user expression while, in parallel, escaping liability for such expression.

In its oldest sense, this term stood for an architectural feature – a raised level surface on which people could stand. But this feature also lent the term a more figurative meaning with time, symbolising the reliance on something to achieve a higher goal. The term has also acquired a computational meaning as being a neutral technical infrastructure that supports various applications. But, in polar opposition to this, are the political connotations of this term when used to signify issues endorsed by a political leader or party.

Gillespie’s attempts at unravelling the multiple meanings of the term “platform” are not only of exceptional academic rigor but also deep practical relevance. Technology companies have used these multiple meanings to lobby for reduced liability for activities on the “platform.” In the online context, policymakers in both the United States and the European Union bought in to this metaphor. Thus, “safe harbours” were crafted to protect digital intermediaries against defamation and other torts and crimes. They were, after all, the engines of free expression and its unhindered transmitters, rather than curators of opinion and content. This placed them in direct contrast with the traditional media industry that invested, and continues to invest, significant resources in their editorial function and ironically, attracts tortious and criminal liability.

The legal position has evolved in India in very different ways though. Starting with the Avnish Bajaj case where a senior official at Baazee.com faced criminal liability for an unfortunate video clip that went up for sale, there was considerable confusion about the extent to which the Information Technology Act, 2000 would rescue the intermediary model. This was later put to test when questions of liability for copyright infringement came up before the Delhi High Court.

In a litigation initiated by T-Series against MySpace, a single judge of the high court found the latter liable for facilitating the upload of the former’s copyrighted content by primary infringers who were subscribers of the digital platform.

The division bench of the Delhi High Court subsequently overturned this verdict and, while doing so, offered policy reasons in support of a more relaxed liability regime. Echoing the policy choices in the United States when “safe harbours” were originally introduced, the bench observed that imposing such great liability on intermediaries would “not only discourage investment, research and development in the Internet sector but also in turn harm the digital economy.” Though considered a progressive verdict that supported the platform model, its effect is largely confined to the Intellectual Property Rights context.

Indian courts, including the Madurai bench of the Madras High Court and multiple benches of the Supreme Court of India, have intervened in situations ranging from TikTok to prenatal diagnostic technique advertisements, to impose strictures and positive obligations on social media platforms and search engines. In December 2018, the ministry of electronics and information technology also proposed amending the intermediary guidelines and rules under the IT Act to mandate automated tools for filtering undesirable content. It is worth noting here that copyright rules in EU have similarly embraced proactive filtering. Subsequently, the Indian debate has also taken the undesirable turn of questioning the need for encryption technologies, with experts arrayed from either side to attack or defend the anonymity of private conversations.

But the drive to generally regulate social media platforms for the content they carry, whether through judicial or executive action, misses the forest for the trees. Moreover, these interventions have rightly attracted criticism on the ground that they are overboard and represent a form of impermissible State-sanctioned restriction against free speech and expression.

What is needed instead is a compensatory regime that addresses grievances of individuals whose reputations are permanently damaged on account of “viral and trending.” Here, platforms are not neutral observers, rather lending the power of the algorithm to multiply manifold the damage of a one-off slur. If traditional media, with its exacting editorial standards, is put to a low threshold for liability, there is no reason to exempt advertising companies that deploy algorithms to gain maximum eyeballs merely for their reliance on the “platform” metaphor.

New legal tests must be devised to hold these platforms liable, including an assessment of how news spreads and the role of the respective platform in assisting with the same, regardless of facial neutrality and their distancing from the actual content. This must necessarily happen on a case-by-case basis. However, we must bear in mind that the business or technology models of today are a far cry, at least from the lens of scale, from what the “safe harbours” were meant to protect.

The occasion is therefore ripe to create new harbours for the models that exist today wherein individuals can anchor their rights and be suitably compensated.