Tuesday, April 28, 2020

Kesavananda Bharati -II : The Case We Do Not Know, But Ought To Know

Source: www.livelaw.in

To read this article by Swapnil Tripathi that is a part of a special series celebrating 47 years of the decisionin KesavanandaBharati vs. State of Kerala where in the SC laid down the 'Basic Structure Doctrine, go to the following link:
https://www.livelaw.in/columns/kesavananda-bharati-ii-the-case-we-do-not-know-but-ought-to-know-155820


Monday, April 27, 2020

Supersession Of Judges : The Disastrous Sequel To Kesavananda Bharati Verdict

Source: www.livelaw.in

To read this article by Swapnil Tripathi that is a part of a special series celebrating 47 years of the decisionin KesavanandaBharati vs. State of Kerala where in the SC laid down the 'Basic Structure Doctrine, go to the following link:
https://www.livelaw.in/columns/supersession-of-judges-the-disastrous-sequel-to-kesavananda-bharati-verdict-155770

Green technology: Expert calls for robust IP law regime

Source: Telangana Today dated 27.04.2020

To read this article go to the following link:
https://telanganatoday.com/green-technology-expert-calls-for-robust-ip-law-regime

Saturday, April 25, 2020

Thursday, April 23, 2020

Helpline for Stress due to COVID-19 lockdown

Dear Students,

Stay Home, Stay Safe!!

Contact helpline no. 080-46110007 for professional advice on psychosocial issues including how to manage stress and anxiety during COVID-19 outbreak. For more information on psychosocial issues during COVID-19 outbreak, visit website of Ministry of Health and Family Welfare (https://www.mohfw.gov.in

From virtual benches to entry curbs — how SC and Delhi HC will work after lockdown

Source: The Print (theprint.in)

-- Apoorva Mandhani

The SC is planning to draw circles in front of case filling counters, while Delhi HC wants its judges, staff to maintain social distancing on premises even after lockdown.

As the country continues to remain under a lockdown due to the Covid-19 outbreak, the Supreme Court and the Delhi High Court are gearing up to enhance their existing facilities for better management as well as initiate precautionary measures so that court premises do not turn into Covid-19 hotspots.
According to sources in the SC, the top court is planning to improve its e-filing system in the next 15 days. A source said this would hopefully reduce the number of people queuing up at counters to file cases.
On a regular day, around 150 to 200 cases are filed at the counters in the Supreme Court.
In front of the filing counters, the court is planning to draw circles on the ground so that people can stand in them at a distance.
Additionally, Supreme Court officials at the counters will no longer be in a face-to-face position with those filing cases as they would be sitting “diagonally” instead, said the source.
The apex court is also in touch with experts from the ICMR and AIIMS to know what chemical can be used to sanitise the court building’s passages. The SC officials are currently trying to obtain approval for a sanitising chemical that can be used on the premises without harming people, said the source. 
The court is also planning to raise the number of virtual benches to five from two. These benches hear cases via video conference. 
As for the modalities of hearing once the court reopens, SC officials are basing their discussions on the 2018 Swapnil Tripathi v Supreme Court of India judgment, in which the Supreme Court authorised live-streaming of court proceedings.
During the hearings, certain restrictions that were put in place before the complete lockdown, will be reintroduced.
For instance, the number of lawyers allowed to go inside the court per party in a case would be restricted to three, and only lawyers for the first six listed cases will be allowed to go in. 

he apex court is also in touch with experts from the ICMR and AIIMS to know what chemical can be used to sanitise the court building’s passages. The SC officials are currently trying to obtain approval for a sanitising chemical that can be used on the premises without harming people, said the source. 
The court is also planning to raise the number of virtual benches to five from two. These benches hear cases via video conference. 
As for the modalities of hearing once the court reopens, SC officials are basing their discussions on the 2018 Swapnil Tripathi v Supreme Court of India judgment, in which the Supreme Court authorised live-streaming of court proceedings.
During the hearings, certain restrictions that were put in place before the complete lockdown, will be reintroduced.
For instance, the number of lawyers allowed to go inside the court per party in a case would be restricted to three, and only lawyers for the first six listed cases will be allowed to go in. 

Courts cannot be converted into hotspots’

As for the Delhi High Court, a letter has been sent by the court’s registrar general to the Chairman of Bar Council of Delhi K.C. Mittal about a “graded action-plan”.
According to the letter, the plan will be created by a committee that has been constituted by Chief Justice of the high court Justice D.N. Patel. This committee will be headed by Justice Hima Kohli of the high court. 
The letter dated 21 April, accessed by ThePrint, highlighted the necessity of a “phased/graded restoration to normalcy plan” and sought Mittal’s suggestions within a week on the issues that are required to be addressed.
It also stated that courts expect a “deluge of fresh cases” that could be filed once they reopen after the lockdown. This is because due to Covid-19, the Delhi High Court and lower courts in the national capital have not been functioning and hearings have been limited to only extremely urgent cases.
It then asserted that “courts cannot be converted into hotspots” and, therefore, “it may not be practicable to open the courts for everyone immediately after the lockdown is lifted”. 
The letter also acknowledged that it may not be possible to predict a definite date for resumption of normal functioning of the court. 
Contacted, Mittal told ThePrint he has already circulated the letter to all the council members and has also sought suggestions from senior members of the bar.
“I am consulting with all the members and some senior members of the bar also, because this is a matter concerning everybody and we would like to have good suggestions,” he said.
“An important issue that’s especially troubling us is the centralised air conditioning, with reports saying that it is a source of spread of Covid-19,” he added. 

Entry restrictions & alternative to central AC

The letter listed out issues to be addressed for formulation of an action plan.
These include “gradual expansion” of cases that would be considered urgent, and availability of infrared thermometers, masks and sanitisers. 
The high court is also contemplating guidelines to restrict entry into courts. The letter stated all stakeholders, including judges, staff, lawyers and litigants, might have to follow social distancing norms in the court complexes even after the lockdown.
Additionally, guidelines could be put in place for restricting entry into the lawyers’ chamber areas in the court complex. Social distancing must also be followed in those areas, according to the letter.
The high court is also exploring an appropriate alternative to centralised air conditioning.
As for the case hearings, the committee is considering putting in place a mechanism for handling of fresh cases. This includes assessment of the need to initially allow filing of  only urgent cases or cases where the period of limitation might be expiring, the letter said.
The nature of the filing — online or manual — to be allowed is also being deliberated upon, it added.
In case hard copies are allowed, the court will have to consider additional safeguards on handling these to rule out chances of an infection. A “centralised filing counter” and petition boxes may be put in place, according to the letter.
Well-equipped permanent video conferencing courts, and creation of a mixed model of ‘virtual and actual courts’ is also being thought of, the letter added.

Wednesday, April 22, 2020

Life after lockdown: how will the law change post-pandemic?

Source: www.legalfutures.co.uk

Ross Birkbeck, (Founder and inventor of Legal Futures Associate Casedo, and a barrister at Old Square Tax Chambers)

Article about the key takeaways from the corona virus crisis, and what this could mean for the future of work in the legal sector. Article available at:
https://www.legalfutures.co.uk/blog/life-after-lockdown-how-will-the-law-change-post-pandemic

Tuesday, April 21, 2020

Life, liberty and law in times of a lockdown

Source: Hindustan Times dated 20.04.2020

-- Shyel Trehan (Counsel in the Supreme Court of India and the Delhi High Court)


There has been a trade-off between the right to life and the right to liberty, with unfair consequences for the poor

The established discourse on rights says that the enjoyment of your rights ends where it affects the ability of another person to enjoy theirs. The idea is to ensure the enjoyment of rights by all, in equal measure. Today, however, we are facing an unprecedented situation: By your presence alone, you can threaten the well-being of another human being.
The Constitution guarantees the right to life and liberty under Article 21. But never before have these fundamental rights been treated as antithetical to each other. But they are today. To preserve life, in its real, actual and most basic sense, we are ready to give up liberty. The more liberty we surrender, the higher the likelihood that we preserve the right to life.
As much of the world enters various phases of lockdowns, scholars are trying to find a legal basis of the lockdowns and other legal measures undertaken by governments to fight the coronavirus. In every country, including India, there is confusion between “government advice” and measures that have the force of law. Some countries such as the United Kingdom (UK) and Singapore have hastily passed legislation to facilitate the collective surrender of the right to move freely and to enforce it through law enforcement authorities. However, despite the enactment in the UK, there have been many instances of confusion between legally enforceable restrictions, and “advice”, even among law enforcement officials.
In India, two laws have been used to tackle the virus: The Epidemic Diseases Act, 1897, a two-page relic from our British colonial past that arms the State to put in place temporary measures, which the public needs to follow, to prevent the outbreak of diseases. Anyone disobeying the Epidemic Diseases Act can be penalised under the all-purpose, all-weather Section 188 of the Indian Penal Code, which prescribes a punishment of imprisonment for up to six months, or a fine up to ~1,000, or both.
The second is the Disaster Management Act, 2005. The pandemic is a “disaster” under the wide definition of the Act. However, in its design, the Act is structured to address natural calamities. To secure compliance of directives issued under this Act, broad unspecific provisions are relied upon. For instance, the guidelines issued on April 15 by the home ministry under the Act include a slew of directives such as wearing masks at workplaces.
Apart from the prohibition on spitting, the violation of which entails a fine, specific punishments for other violations are not indicated. Any other violation would fall under Section 51 of the Act, which prescribes a maximum punishment of imprisonment for a year or a fine. This increases to two years, if the violation results in loss of lives or imminent danger. The notification issued by the home ministry also cites the trusty old Section 188.
No existing law is designed to address the coronavirus pandemic. So repurposing outdated legislation, or using legislation not designed for this purpose, may have enabled swift measures, but at the same time, it has a one-size-fits-all approach. It would be ideal to have a law that tailors punishments proportionately to the behaviour it seeks to secure.
Then there are the faultlines that emerge when law enforcement and public health collide. When three residents of an affluent neighborhood in Delhi tested positive for Covid-19, the police circulated a WhatsApp message, stating that their preliminary inquiry raised a “doubt” about a guard working with the family, who was suspected of attending a religious gathering. The message stated that the guard was now “on the run”. The police registered an FIR against him. A week later, it turned out that the guard tested negative for Covid-19. We see the word “suspect” used for people afflicted with symptoms of the disease. This is an epidemic, not a bank robbery. Yet, as we rely on law enforcement authorities to grapple with a difficult public health situation, we expect them to shift gears.
We need to change the vocabulary to encourage honest reporting of symptoms and exposure. How do we do this when India presents more complex issues about social distancing than perhaps any other country in the world? People do not observe physical space or boundaries, nor do they often have the luxury of them. We are hardwired to not be solitary creatures. Will we be capable of the behavioural change required to keep us all safe after complete lockdown measures are lifted, or will the change in behaviour continue to be demanded and imposed on us by the law?
We now seem to be part of a global consensus supporting the necessity to trade off one right to preserve another. In India, it is the poor that have disproportionately borne the burden of this. A trade implies receiving something in return for what you forfeit. Did the poor participate in a trade at all? The right to life has been interpreted by the Supreme Court to include the right to live with dignity. Yet, we failed to provide a life of dignity during lockdown to our most economically vulnerable people. This is a cross that the nation will carry forever.

LECTURE ON ART OF CROSS EXAMINATION IN CRIMINAL TRIALS

Source: YouTube

LECTURE ON ART OF CROSS EXAMINATION IN CRIMINAL TRIALS BY ANIKET NIKAM
Available at: https://tinyurl.com/yb4x83v4

Monday, April 20, 2020

Law playing catch-up with a virus

Source: The Hindu Business Line dated 20.04.2020

-- Piyush Joshiand R. V. Anuradha  (Partners at Clarus Law Associates, New Delhi)


To resolve the uncertainties resulting from the pandemic, India should consider suitable statutory intervention that can provide clarity and certainty on how Covid-related effects should be addressed

Covid-19 has resulted in a spate of uncertainties that both governments and businesses are little prepared for. The Central and State governments have so far announced various relief measures such as financial assistance and subsidies to businesses, enhancement of timelines for statutory compliances, waiver of limitation in court proceedings, assurance of payment of salaries despite being in a state of lockdown, and subsidised food and other such measures.
With respect to contracts entered into by both governments and private parties, a standard legal response has been to seek declaration of the lockdown and disruptions in supply chains created by Covid-19, as a situation of force majeure — a French term that translates to a “superior or irresistible force”. Most contracts have force majeure clauses, that may range from generic terms covering all events or combination of events outside the control of the affected party, to extremely limited and narrow provisions which allow for only very specific events, that allow for suspension of contractual obligations.
More than a month before the Central government imposed a preventive lock down across India on March 24, the Finance Ministry allowed for declaration of force majeure when the government was engaged in procurement of goods or services, if the supply chain for the relevant project/contract was affected by Covid-19.
This was followed by the Ministry of New and Renewable Energy directing its implementing agencies (such as SECI and NTPC) to grant suitable “extension of time” for contracts based on evidence produced by developers in support of their respective claims of disruption of the supply chains due to spread of coronavirus in China or any other country.
The main limitation of the force majeure clauses in contracts, however, is that these are typically contested by counter-parties as regards the duration and extent to which a party can seek suspension of obligations, which will inevitably result in a flurry of disputes and terminated or suspended contracts. This will likely result in parties that are already burdened with economic effects of Covid-19, soon having to deal with legal suits for contractual damages or penalties.
Other than force majeure clauses, some contracts may also provide for situations relating to “change in law” and “change in scope”. The legal measures enacted by the government such as those relating to the ‘lockdown’, are also changes in laws of India.
It is apparent that apart from the immediate material and adverse impact of Covid-19 during the period of the lockdown, there will be the continued impact on parties for at least 6-12 months, depending upon a relevant sector. There will be a general tendency for individuals as well as enterprises to move towards conserving cash, and therefore sectors such as travel and tourism, hotels, automobile, real estate, and electronic goods, may take several months for a full recovery. Construction projects across infrastructure sectors are also likely to face knock-down effects in terms of delays in supply of raw materials, labour or commercial viability.
To resolve the uncertainties resulting from the situation, India should consider suitable statutory intervention that can provide clarity and certainty on how Covid-19 related effects should be addressed. This is likely to play an effective role in containing the spectre of multiple disputes.

Singapore’s approach

Singapore passed the ‘Covid-19 (Temporary Measures) Act, 2020’ on April 7. The ‘temporary’ measures under the Act will be in place for an initial period of six months from the commencement of the law, and its duration may be extended for an additional period, which, as of now, is not intended to last beyond a year.
These measures seek to protect Singaporean enterprises from legal actions for breach of contractual terms, if such non-performance was caused to a material extent by Covid-19. These include protection from legal actions for payment of damages, insolvency proceedings, enforcement of security over immovable and movable property, encashment of performance bonds given pursuant to construction contracts, or termination of leases for non-residential purpose due to non-payment of rent. The Act also provides relief in respect of forfeiture of deposits for events and tourism-related contracts where the non-performing party postpones an event.
The overall objective and intent of the Singapore Act is to provide a clear mechanism for preventing a spate of disputes and mitigate the economic fallout of Covid-19. A similar law in the Indian context will ensure greater certainty and objectivity by streamlining the criteria and factors to be considered for assessing the required relaxation of contractual obligations.

Saturday, April 18, 2020

Will Covid-19 be a wake-up call for the profession?

Source: https://www.legalfutures.co.uk

-- Neil Hudgell, managing director of Legal Futures Associate Hudgell Solicitors


I’m sure the past four weeks in particular have been the most difficult faced by most businesses – no matter how big or small, no matter what line of work.
Facing a situation none of us have ever dealt with before in the wake of the rapid spread of Covid-19, each and every business has had to rapidly consider its immediate future.
It has certainly caused major challenges across the legal profession, one which perhaps should largely already have been flexible enough to continue with minimal disruption.
Businesses across the country have faced the challenge of enabling their staff to work remotely. For some industries this has proved impossible, but for ours, is greater remote working and flexibility not the way forward?
When we finally have this pandemic under control and the working world returns to some normality, I wonder how many legal firms will be amazed at just how well they handled it and adapted to it over the weeks, or maybe months it lasts.
I imagine also that the most forward-thinking and entrepreneurial firms will begin to question the merits of simply returning to all the old traditional ways of working.
When the dust settles, surely it will be time to consider how changes implemented in such a rush could actually provide solutions and help individual firms, and the system, working more efficiently, and modernly, in the long term.
In just under two weeks, we completely transformed how we were working at Hudgell Solicitors, with almost our entire team of lawyers and all other staff – who usually work from four city centre-based offices – working remotely from home.
Fortunately, we had a business continuity plan in place for such eventualities.
We’ve also benefitted hugely from having our own in-house employment lawyer, keeping us and clients informed of the unravelling situation, and an IT team led by industry leader Nigel Stott who was ready to react at speed.
We did, of course, need to quickly invest in new equipment and systems to ensure all were able to continue their work remotely.
We’ve also had to offer support to staff with home connectivity to our systems, especially those who, until now had only ever worked in an office environment. There have been teething problems, but daily communications have been overcoming these.
As a firm we had already embraced remote and home working and long trusted many members of our staff to work alone when it benefits both parties.
We’ve also worked hard over the past few years to remove any bureaucracy within our business, opening up clear lines of communication across the business, at all levels, no matter where our staff are based at any particular time.
That perhaps made us better placed than many others to respond to this crisis situation, switching to almost 100% remote working at pace, running thousands of legal cases which had days earlier been managed across a number of offices and locations.
Moving forward, I’m certain increased flexibility in the way we work is the way for forward-thinking firms to stay ahead.
I’m also sure it will be appreciated by clients, who have come to expect more modern methods of communication in all walks of life.
A successful, remote working platform could perhaps help firms such as ourselves recruit talent more widely, removing issues with locality and offering the flexibility so many workers seek in the modern world.
The limitations our lawyers are currently facing in the light of the upheaval of the past weeks are more to do with the impact on the legal sector’s ability to become truly flexible, not ours as a business.
Yes, of course there are obvious difficulties with regards to holding physical court hearings and trials which need to be addressed, but they have become much more reliant on technology and video links in the modern era, and surely will continue to be so.
It is only the lack of flexibility across the sector which means we are now dealing with uncertainty over upcoming court hearings and appointments.
We are currently being given daily updates and advice from the courts which we are passing on to our staff as to how to manage case e-bundles, how to conduct remote hearings and joint settlement meetings.
I imagine the impact of the present situation will certainly accelerate our plan to develop towards an entirely paperless office.
The question which needs to be asked now is should we not as a profession being doing a lot of this already?
Much of what we implement over the coming weeks could well play a big part in how we work in the future.
The agile, entrepreneurial and forward-thinking firms will surely not simply view this period as a challenge they faced and survived.
Surely they must question how they have always worked and how the changes brought in as a necessity, could become common practice.
We are certainly opening dialogue with other parties such as defendant firms, insurers and all those who play a role in the longer term support of our clients to work collaboratively towards new, efficient working processes and methods not just now, but for the future.

It will be for the benefit of all.

Friday, April 17, 2020

What is force majeure? The legal term everyone should know during Covid-19 crisis

Source: Economic Times dated 17.04.2020

-- Poorvi Sanjanwala (Partner, Rajani Associates) and Kashmira Bakliwal (Senior associate, Rajani Associates)

Apart from the devastating impact that COVID-19 continues to unleash on human beings and countries worldwide, its outreach has also reached commerce and business. COVID-19 has resulted in lockdowns or restricted movements in countries.

Consequently, businesses have been impacted and so have operations and consequently contracts and obligations under contracts are being revisited to assess these impacts. The term that has assumed relevance in contractual context today for businesses today ..

Wednesday, April 15, 2020

Exemption Clauses In Insurance Contracts Are To Be Construed Against Insurer In Case Of Doubt : SC

Source: www.livelaw.in

In a notable judgment in a motor accident compensation case, the Supreme Court applied the well-settled principle that exemption of liability clauses in insurance contracts are to be construed against the insurance company in case of ambiguity.

To read further go to https://www.livelaw.in/top-stories/exemption-clauses-in-insurance-contracts-are-to-be-construed-against-insurer-in-case-of-doubt-sc-155293#.XpcgAoQ_Gvs.whatsapp