Friday, March 5, 2021

Delhi High Court dismisses challenge to appointment of Dr. Najma Akhtar as Vice-Chancellor of Jamia Millia Islamia

The Delhi High Court on Friday dismissed a petition challenging the appointment of Dr. Najma Akhtar as the Vice-Chancellor of the Jamia Millia Islamia, New Delhi (M Ehtesham-ul-Haq vs UOI & Ors).


Thursday, March 4, 2021

Dying Declaration Cannot Be Discarded Merely Because Relatives Of Deceased Were Present In Hospital While Recording It: Supreme Court


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The Supreme Court observed that a dying declaration cannot be disbelieved merely because parents and relatives of the deceased were present in the hospital while recording it.


"It is quite natural that when such an incident happens, the parents and other relatives try to reach the hospital immediately. Merely because they were in the hospital, the same is no ground to disbelieve the dying declaration, recorded by the Magistrate", the bench said while dismissing the appeal filed by a murder accused.



In the declaration, recorded by the Judicial Magistrate, the deceased stated that the accused has poured kerosene oil and set her ablaze. Challenging the concurrent conviction, the accused before the apex court contended that the dying declaration was tutored one and the same was made at the instance of family members of the deceased, who were there with the deceased in hospital at the relevant time. According to his version, the deceased made attempt to commit suicide, and he tried his best to extinguish the fire.



Examining the case records, the bench noted that the Magistrate, in her deposition, has clearly stated that the relatives of the deceased, Pooja Rani, were not there at the time of recording the dying declaration of the deceased.


"Further, merely because the parents and other relatives of the deceased were present in the Hospital when the statement of the deceased was recorded, it cannot be said that the said statement was a tutored one. It is quite natural that when such an incident happens, the parents and other relatives try to reach the hospital immediately. Merely because they were in the hospital, the same is no ground to disbelieve the dying declaration, recorded by the Magistrate, who was examined as PW-16.", the court said while dismissing this contention.

To dismiss the appeal, the court noted that, if the dying declaration is considered along with the depositions of other witnesses, it clearly establishes the guilt of the accused beyond a reasonable doubt.


Wednesday, March 3, 2021

Using private image without consent entirely illegal: Bombay High Court

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"Using a private image without consent entirely illegal:" Bombay High Court orders Amazon Prime to take down Telugu movie until the image is removed.

A single-judge Bench of Justice GS Patel found that there was a prima face case in favour of Malik noting that the image has not only been used without consent but has also been used in a derogatory manner.

"The fact that the image has been illicitly used is bad enough. It only makes matters worse when used in a plainly derogatory and demeaning vein", Justice Patel stated in the order.

The Court, therefore, ordered that the film be taken down in all versions, irrespective of language and sub-titles until all the images of the plaintiff are completely deleted from the movie.

"It is not acceptable for them to merely pixelate or blur the images. The entire sequence which has the image of the plaintiff is to be removed immediately," the Court added.

"It would be standard procedure almost anywhere, and this would be true whether the issue is one of copyright in the photograph or of use with permission of an image of the model in question for a particular sequence. It seems to me self-evident that it is not possible to use the image of any person for a commercial purpose without express written consent. If images are to be used without such express consent, they must be covered by some sort of legally enforceable and tenable licensing regime, whether with or without royalty," the Court said.

Monday, March 1, 2021

"Can sexual intercourse between man and wife be called rape?"


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According to the complainant, the UP based couple had been in a romantic relationship, but she had "refused to enter into a sexual relationship till marriage".

Her consent was "obtained by fraud" since, in February 2014, the couple went to Manali where they performed "marriage rituals at the Hidimba temple.

The man denied that any marriage took place contending that the live-in relationship was a consensual one while the woman maintained that the consent for sexual intercourse was obtained "by fraud" since she had believed the temple wedding to be a "real marriage."

"Making a false promise of marriage is wrong. No one should falsely promise marriage and break off. But that is different from saying that the act of sexual intercourse is rape," observed the CJI led bench, adding that the top court had "settled the matter" in earlier Judgments.

The woman also raised allegations that the accused man had "brutally exploited" her, and she had to visit a hospital due to injuries caused to her private parts by the man. On another occasion, she had a fractured leg, it was alleged.

"Then you file a case for assault and marital cruelty. Why to file a rape case?" questioned the CJI, who also questioned whether the abuse within a "relationship of marriage" could be considered rape.

The Court proceeded to grant protection from arrest to the accused man for four weeks but declined to pass any orders on his plea to quash the FIR.

Friday, February 26, 2021

Shamima Begum cannot return to the UK, Supreme Court rules


SHAMIMA BEGUM cannot return to the UK to pursue an appeal against the removal of her British citizenship, the Supreme Court has ruled.

Ms Begum (pictured) was 15 when she and two other east London schoolgirls travelled to Syria to join the so-called Daesh in February 2015.

Her British citizenship was revoked on national security grounds shortly after she was found, nine months pregnant, in a Syrian refugee camp in February 2019.

Ms Begum, now 21, is challenging the Home Office’s decision to remove her British citizenship and wants to be allowed to return to the UK to pursue her appeal.

In July last year, the Court of Appeal ruled that 'the only way in which she can have a fair and effective appeal is to be permitted to come into the United Kingdom to pursue her appeal'.

The Home Office challenged that decision at the Supreme Court in November, arguing that allowing her to return to the UK 'would create significant national security risks' and expose the public to 'an increased risk of terrorism'.

Today, the UK’s highest court ruled that Ms Begum should not be granted leave to enter the UK to pursue her appeal against the deprivation of her British citizenship.

Announcing the decision, Lord Reed said: 'The Supreme Court unanimously allows all of the Home Secretary’s appeals and dismisses Ms Begum’s cross-appeal.'

In the court’s written ruling, Lord Reed said: 'It is, of course, true that a deprivation decision may have serious consequences for the person in question: although she cannot be rendered stateless, the loss of her British citizenship may nevertheless have a profound effect upon her life, especially where her alternative nationality is one with which she has little real connection.

Thursday, February 25, 2021

Centre Finalizes Draft Rules For Regulation of Social Media Intermediaries, OTT Platforms & Online Media

The Central Government on Thursday announced the Draft Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021 to regulate the social media intermediaries, OTT platforms and online news and current affairs websites.


The Rules prescribing a Code of Ethics and a three-tier content regulation mechanism have been framed under the decades old Information Technology Act, 2000. They will come into force when notified in the Official Gazette.


Code of Ethics in Relation to Digital/Online Media


The Code of Ethics shall inter alia apply to publishers of online curated content and intermediaries.


It stipulates that an applicable entity shall exercise due caution and shall take into consideration the following factors, when deciding to feature any content on its platform:


Content which affects the sovereignty and integrity of India;

Content which threatens, endangers or jeopardizes the security of the State;

Content which is detrimental to India's friendly relations with foreign countries.

India's multi-racial and multi-religious context.

Activities, beliefs, practices, or views of any racial or religious group in India.


The Ministry shall establish an online Grievance Portal, as the central repository for receiving and processing all grievances from the public in respect of the Code of Ethics


Three-tier grievance redressal framework for news sites and OTT platforms


For ensuring adherence to the abovesaid Code of Ethics and for addressing the grievances thereof, the Government has proposed a three-tier structure as under:


Level I - Self-regulation by the applicable entity


An applicable entity shall establish appoint an India based Grievance Redressal Officer, for redressal of grievances. He shall act as the nodal point for interaction with the complainant, the self-regulating body and the Ministry.


The applicable entity shall address the grievance and inform the complainant of its decision within 15 days.


Level II — Self-regulation by the self-regulating bodies of the applicable entities


All applicable entities shall come together to form an independent "Self-Regulatory Body" that shall be headed by a retired judge of the Supreme Court or of a High Court, appointed from a panel prepared by the Ministry.


The Body will further comprise of maximum six members, being experts from the field of media, broadcasting, technology and entertainment.


This Body shall perform the following functions:


Oversee and ensure adherence to the Code of Ethics

Provide guidance to such entities on various aspects of the Code of Ethics

Address grievances that have not been resolved by such entities within the stipulated period of 15 days

Hear appeals filed by the complainant against the decision of such entities

Issue advisories to entities for ensuring compliance to the Code of Ethics

While disposing a grievance or an appeal, the Self-regulatory Body shall have the following powers:


Issue warning, censure, admonish or reprimand such entity

Require an apology by such entity

Require such entity to include a warning card or a disclaimer

Further, in case the Body is of opinion that there is a need for taking of action in relation to the complaint under Section 69A of the IT Act, refer such complaint to the Oversight Mechanism.


Level III - Oversight mechanism by the Central Government


Where the applicable entity fails to comply with the advisories of the self-regulating body, the latter shall refer the matter to the Oversight Mechanism within prescribed time.


The Oversight Mechanism with have the following functions-


Publish a charter, including Codes of Practices, for self-regulating bodies

Develop the Grievance portal for prompt disposal of the grievances

Establish an Inter-Departmental Committee for hearing grievances

Refer to the Inter-Departmental Committee grievances arising out of the decision of the self-regulating body or where no decision has been taken by the self-regulating body within the stipulated time period

Inter-Departmental Committee


The IT Ministry shall constitute an Inter-Departmental Committee consisting of representatives from:


Ministry of Information and Broadcasting

Ministry of Women and Child Development

Ministry of Law and Justice

Ministry of Home Affairs

Ministry of Electronics and Information Technology

Ministry of External Affairs

Ministry of Defence

Indian Computer Emergency Response Team

Such other Ministries and Organizations, including domain experts, that it may decide.

The functions of this Committee shall include hearing complaints regarding violation or contravention of the Code of Ethics by an applicable entity —

arising out of grievances in respect of decisions taken at Level I or II, including where no such decision is taken within the time specified

Suo Motu if in the opinion of the Committee such hearing is necessary, for reasons to be recorded in writing

Referred to it by the Ministry.

It shall then make its recommendations to the Ministry as under :

Issue warning, censure, admonish or reprimand such entity

Require an apology by such entity

Require such entity to include a warning card or a disclaimer

Due diligence to be observed by Intermediaries

Rule 4 of the 2021 Draft Rules provides 16-due diligence rules to be followed by intermediaries in India.


Further, all intermediaries shall be required to appoint a Chief Compliance Officer who shall be responsible for ensuring compliance with the Act. he shall also act as a nodal person of contact for 24x7 coordination with law enforcement agencies and officers to ensure compliance to their orders or requisitions made in accordance with the provisions of law.

Tuesday, February 23, 2021

Denying a person right to choose spouse based on caste is violative of fundamental rights, the Himachal Pradesh High Court

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Suppressing or oppressing freedom of an individual, that too which is contrary not only to his/her spiritual and religious rights but also constitutional rights is to be deprecated, the Court said.

"We are living in a State governed by the Constitution and discrimination on the basis of caste by denying of right to choose spouse, is in violation of Fundamental Rights guaranteed under the Constitution of India," the Court said.

 "Ms. Komal has refuted the allegations of her ill mental health with further submission that she was slapped brutally on 2.2.2021 at Jawalaji and thereafter she was beaten and administered some injection and forcibly taken to Mental Health Specialist on 3.2.2021 and 10.2.2021. She has further stated that she is not having any mental health problem and that she is a student and has appeared in BBA Final Year Examination a few months ago." the Court noted.

 

Friday, February 19, 2021

Google's definition of not including bum as 'private part' may not be acceptable in Indian context: Mumbai Court convicts man under POCSO

The definition of "private part" has to be interpreted as per the social context, a Special Court dealing with cases pertaining to the Protection of Children from Sexual Offences (POCSO) Act said convicting a person for committing sexual assault under Sections 354, 354A of the Indian Penal Code and Section 10 of the POCSO Act. (State of Maharashtra v. Sahar Ali Shaikh)

The designated POCSO judge MA Baraliya had to consider whether the act of "touching the bums" of the victim by the accused would constitute an offence under Section 7 of the POCSO Act.

Clarifying that “the term private part is to be interpreted into the context what is meant by it in our society,” the Court held that Google’s definition of not including bum in private part may not be an acceptable interpretation as far as Indians are concerned.

Banks Duty-Bound To Exercise Due Diligence In Maintaining And Operating Their Locker Facility: Supreme Court Issues Guidelines

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The Supreme Court observed that the banks owe a duty of care to exercise due diligence in maintaining and operating their locker or safety deposit systems and that they cannot contract out of the minimum standard of care in this regard.


The banks cannot wash off their hands and claim that they bear no liability towards their customers for the operation of the locker. the bench comprising Justices Mohan M. Shanthanagoudar and Vineet Saran said while directing the Reserve Bank of India to lay down Rules and Regulations mandating the steps to be taken by banks with respect to locker facility/safe deposit facility management.

Until such regulations are framed and issued by the RBI, the bench observed that the following guidelines have to be followed by the bank


Irrespective of the value of the articles placed inside the locker, the bank is under a separate obligation to ensure that proper procedures are followed while allotting and operating the lockers:

(a) This includes maintenance of a locker register and locker key register.

(b) The locker register shall be consistently updated in case of any change in the allotment.

(c) The bank shall notify the original locker holder prior to any changes in the allotment of the locker, and give them a reasonable opportunity to withdraw the articles deposited by them if they so wish.

(d) Banks may consider utilizing appropriate technologies, such as blockchain technology which is meant for creating digital ledger for this purpose.

(e) The custodian of the bank shall additionally maintain a record of access to the lockers, containing details of all the parties who have accessed the lockers and the date and time on which they were opened and closed. (f) The bank employees are also obligated to check whether the lockers are properly closed on a regular basis. If the same is not done, the locker must be immediately closed and the locker holder shall be promptly intimated so that they may verify any resulting discrepancy in the contents of the locker.

(g) The concerned staff shall also check that the keys to the locker are in proper condition.

(h) In case the lockers are being operated through an electronic system, the bank shall take reasonable steps to ensure that the system is protected against hacking or any breach of security.

(i) The customers' personal data, including their biometric data, cannot be shared with third parties without their consent. The relevant rules under the Information Technology Act, 2000 will be applicable in this regard.

(j) The bank has the power to break open the locker only in accordance with the relevant laws and RBI regulations if any. Breaking open of the locker in a manner other than that prescribed under law is an illegal act that amounts to gross deficiency of service on the part of the bank as a service provider.

(k) Due notice in writing shall be given to the locker holder at a reasonable time prior to the breaking open of the locker. Moreover, the locker shall be broken open only in the presence of authorized officials and an independent witness after giving due notice to the locker holder. The bank must prepare a detailed inventory of any articles found inside the locker, after the locker is opened, and make a separate entry in the locker register, before returning them to the locker holder. The locker holder's signature should be obtained upon the receipt of such inventory so as to avoid any dispute in the future.

(l) The bank must undertake proper verification procedures to ensure that no unauthorized party gains access to the locker. In case the locker remains inoperative for a long period of time, and the locker holder cannot be located, the banks shall transfer the contents of the locker to their nominees/legal heirs or dispose of the articles in a transparent manner, in accordance with the directions issued by the RBI in this regard.

(m) The banks shall also take necessary steps to ensure that the space in which the locker facility is located is adequately guarded at all times.

(n) A copy of the locker hiring agreement, containing the relevant terms and conditions, shall be given to the customer at the time of allotment of the locker so that they are intimated of their rights and responsibilities.

(o) The bank cannot contract out of the minimum standard of care with respect to maintaining the safety of the lockers as outlined supra.

The bench issued these directives while disposing an appeal against a judgment of National Consumer Disputes Redressal Commission. In this case, the complainant filed a consumer complaint before the District Consumer Forum seeking a direction to United Bank of India to return the seven ornaments that were in the locker; or alternatively pay Rs. 3,00,000/­ towards the cost of jewelry, and compensation for damages. The Forum directed the bank to return the entire contents of the locker, or alternatively pay the complainant Rs. 3,00,000/­ towards cost of the jewelry and, Rs. 50,000/­ as compensation for mental agony, harassment, and cost of litigation. In appeal, the State Consumer Disputes Redressal Commission, though accepted the District Commission's findings on the question of deficiency of service, reduced the compensation from Rs. 50,000/­ to Rs. 30,000/­ and further observed that the dispute on the contents of the locker can only be decided upon provision of elaborate evidence. NCDRC upheld this order of the State Commission.

The appeal before the Apex Court filed by the appellant raised these issues: First, Whether the Bank owes a duty of care to the locker holder under the laws of bailment or any other law with respect to the contents of the locker? Whether the same can be effectively adjudicated in the course of consumer dispute proceedings? Second, irrespective of the answer to the previous issue, whether the Bank owes an independent duty of care to its customers with respect to diligent management and operation of the locker, separate from its contents? Whether compensation can be awarded for non­compliance with such duty?

The bench did not answer the first issue conclusively. It upheld the NCDRC finding that the complainant must file a separate suit before the competent civil court for seeking this relief and for proving that the missing items were actually in the custody of the bank. The court said that all questions of fact and law are left open before the civil court to decide on the merits of the case, including as to whether the law of bailment is applicable, or any other law as the case may be.


On the second issue, the bench observed that Banks as service providers under the earlier Consumer Protection Act, 1986, as well as the newly enacted Consumer Protection Act, 2019, owe a separate duty of care to exercise due diligence in maintaining and operating their locker or safety deposit systems


"It appears to us that the present state of regulations on the subject of locker management is inadequate and muddled. Each bank is following its own set of procedures and there is no uniformity in the rules. Further, going by their stand before the consumer fora, it seems that the banks are under the mistaken impression that not having knowledge of the contents of the locker exempts them from liability for failing to secure the lockers in themselves as well. In as much as we are the highest Court of the country, we cannot allow the litigation between the bank and locker holders to continue in this vein. This will lead to a state of anarchy wherein the banks will routinely commit lapses in proper management of the lockers, leaving it to the hapless customers to bear the costs. Hence, we find it imperative that this Court lays down certain principles which will ensure that the banks follow due diligence in operating their locker facilities, until the issuance of comprehensive guidelines in this regard.", the court said.

While disposing the appeal, the bench also observed that the banks cannot wash off their hands and claim that they bear no liability towards their customers for the operation of the locker. It observed:


Before concluding, we would like to make a few observations on the importance of the subject matter of the present appeal. With the advent of globalization, banking institutions have acquired a very significant role in the life of the common man. Both domestic and international economic transactions within the country have increased multiple folds. Given that we are steadily moving towards a cashless economy, people are hesitant to keep their liquid assets at home as was the case earlier. Thus, as is evident from the rising demand for such services, lockers have become an essential service provided by every banking institution. Such services may be availed of by citizens as well as by foreign nationals. Moreover, due to rapid gains in technology, we are now transitioning from dual key operated lockers to electronically operated lockers. In the latter system, though the customer may have partial access to the locker through passwords or ATM pin, etc., they are unlikely to possess the technological know­how to control the operation of such lockers. On the other hand, there is the possibility that miscreants may manipulate the technologies used in these systems to gain access to the lockers without the customers' knowledge or consent. Thus the customer is completely at the mercy of the bank, which is the more resourceful party, for the protection of their assets. In such a situation, the banks cannot wash off their hands and claim that they bear no liability towards their customers for the operation of the locker. The very purpose for which the customer avails of the locker hiring facility is so that they may rest assured that their assets are being properly taken care of. Such actions of the banks would not only violate the relevant provisions of the Consumer Protection Act, but also damage investor confidence and harm our reputation as an emerging economy.

The court also directed RBI to lay down comprehensive directions mandating the steps to be taken by banks with respect to locker facility/safe deposit facility management.


Thus it is necessary that the RBI lays down comprehensive directions mandating the steps to be taken by banks with respect to locker facility/safe deposit facility management. The banks should not have the liberty to impose unilateral and unfair terms on the consumers. In view of the same, we direct the RBI to issue suitable rules or regulations as aforesaid within six months from the date of this judgment. Until such Rules are issued, the principles stated in this judgment, in general and at para in particular, shall remain binding upon the banks which are providing locker or safe deposit facilities. It is also left open to the RBI to issue suitable rules with respect to the responsibility owed by banks for any loss or damage to the contents of the lockers, so that the controversy on this issue is clarified as well.

CASE: Amitabha Dasgupta vs. United Bank of India [CIVIL APPEAL NO. 3966 OF 2010]



Wednesday, February 17, 2021

No Recovery Should Be Made At The Time Of Search/Inspection Under Any Circumstances: Gujarat High Court Directs GST Officials

In a crucial order, the Gujarat High Court on Tuesday (16th February) directed the Central Board of Indirect Taxes and Customs as well as the Chief Commissioner of Central/State Tax of the State of Gujarat, inter alia, to make no recovery in any mode at the time of search/inspection proceedings under Section 67 of the Central/Gujarat Goods and Services Tax Act, 2017 under any circumstances.

The Bench of Justice J. B. Pardiwala and Justice I. J. Vora issued this interim direction following various complaints of coercive recovery by GST officials during the search operations.

Since the officers of the afore-mentioned departments who were asked to join the video conference did join, but at a very later stage, they were unable to witness the discussion that took place between the Court and Devang Vyas (Additional Solicitor General of India), the Court passed an interim order issuing the following directions: -

  • Even if the assessee comes forward to make voluntary payment by filing Form DRC­03, the assessee should be asked/ advised to file such Form DRC­03 on the next day after the end of search proceedings and after the officers of the visiting team have left the premises of the assessee
  • The facility of filing complaint/ grievance after the end of search proceedings should be made available to the assessee if the assessee was forced to make payment in any mode during the pendency of the search proceedings. 
  • If complaint/ grievance is filed by assessee and the officer is found to have acted in defiance of the afore­stated directions, then  strict disciplinary action should be initiated against the concerned officer.