Thursday, December 31, 2015

Facebook fights for free Internet in India, global test-case

India has become a battleground over the right to unrestricted Internet access, with local tech start-ups joining the front line against Facebook Inc founder Mark Zuckerberg and his plan to roll out free Internet to the country's masses.

The Indian government has ordered Facebook's Free Basics plan to be put on hold while it decides what to do.

The program, launched in around three dozen developing countries, offers pared-down web services on mobile phones, along with access to Facebook's own social network and messaging services, without charge.

But critics say the program, launched 10 months ago in India in collaboration with operator Reliance Communications , violates principles of net neutrality, the concept that all websites on the internet are treated equally. It would put small content providers and start-ups that don't participate in it at a disadvantage, they say.

"India is a test case for a company like Facebook and what happens here will affect the roll out of this service in other smaller countries where perhaps there is not so much awareness at present," said Mishi Choudhary, a New York-based lawyer who works on technology and Internet advocacy issues.

Also at stake is Facebook's ambition to expand in its largest market outside the United States. Only 252 million of India's 1.3 billion people have Internet access, making it a growth market for firms including Google and Facebook.


The Telecom Regulatory Authority of India (TRAI) said on Thursday it had received record submissions for a public consultation that precedes the rule-making process.

But more than three quarters of the 1.8 million comments submitted by users via Facebook will be disregarded as they did not follow the proper format, TRAI Chairman Ram Sevak Sharma told a news conference.

In the past week, Facebook has urged users in India to send a response to the TRAI both through its social networking platform and through mobiles by dialling a number that automatically generates a response on the users' behalf.

However, the social media giant faces stiff resistance.

In a letter seen by Reuters, the heads of nine start-ups including Alibaba-backed Paytm and dining app Zomato have written to the TRAI urging it to ensure Internet access was allowed without differential pricing.

The executives said in the letter, dated Tuesday, that differential pricing for Internet access would lead to a "few players like Facebook with its Free Basics platform acting as gate-keepers."

"There is no reason to create a digital divide by offering a walled garden of limited services in the name of providing access to the poor," they wrote.

Zuckerberg has got personally involved.

"We know that for every 10 people connected to the Internet, roughly one is lifted out of poverty," he wrote in The Times of India newspaper this week. "We know that for India to make progress, more than 1 billion people need to be connected to the Internet.

"What reason is there for denying people free access to vital services for communication, education, healthcare, employment, farming and women's rights?"


A Facebook spokesman said the aim of the Free Basics initiative was to give people a taste of what the internet can offer. And Facebook has issued a series of full-page newspaper advertisements and billboard banners in an aggressive campaign to counter the protests.

"Free Basics is at risk of being banned, slowing progress towards digital equality in India," said an advertisement published in Mumbai newspapers on Wednesday, urging Internet users to support the initiative.

Launched last year in Zambia, Free Basics, earlier known as, has run in to trouble elsewhere on grounds that it infringes the principle of net neutrality. Authorities in Egypt effectively suspended the service when a required permit was not renewed after it lapsed on Wednesday.

The TRAI has asked Facebook and Reliance Communications to suspend Free Basics until a final policy decision is made next month.

"In a democracy you have both sides - you have Facebook spending so much on the campaign and on the other side you have internet activists making their own efforts," the TRAI's Sharma told Reuters on Wednesday.

"Our job is to make a policy that is in the interest of telecom operators and end users in India."

Tuesday, December 29, 2015

Teenage girls detained for ‘filming rape of minor’

BAREILLY Police on Saturday detained two minor girls for allegedly shooting and sharing a video of the alleged rape of another minor girl by a youth of the same village in Shergarh police station area. The detained girls as well as the alleged victim are between the ages of 16 and 17.

The incident sparked tension in the village, and a heavy police contingent has been deployed.

The alleged victim’s cousin saw the video on the cellphone of his neighbour on Friday. He informed the ‘victim’s’ father, who lodged an FIR against the neighbourhood youth and the two girls. The charges include house trespass in order to commit offence, rape, 66A of the IT Act and POCSO Act. The youth was booked for allegedly raping the girl while the two girls face charges of filming the alleged act and circulating it.

Bareilly DIG R K S Rathore said the girls are being questioned. Efforts are on to trace the youth, he added.

ASP (Rural) Brijesh Kumar Srivastava said the girls admitted shooting the video at the ‘victim’s’ house a month ago. The police are yet to record the statement of the ‘victim’. Circle Officer, Shergarh area, Pramod Singh Yadav, said the father told the police that his daughter was raped on December 18 when she was alone in the house.

Govt must hoist state flag on official buildings, cars: J&K High Court

The Jammu and Kashmir High Court has directed the government to hoist the state flag on all official buildings and vehicles of constitutional authorities.

The judgment is a setback to Mufti Mohammad Sayeed-led PDP-BJPgovernment that had withdrawn a circular asking the constitutional authorities to respect the state flag and hoist it on their official cars.

“(The) respondents (state government) and all constitutional authorities shall adhere to and abide by mandate and spirit of Section 144, Constitution of Jammu and Kashmir, J&K Prevention of Insult to State Honour Act 1979,” Justice Hasnain Masoodi directed while disposing a writ petition filed by a civilian Abdul Qayoom Khan. “Such adherence, obviously, is to include hoisting of state flag on the buildings housing offices of constitutional authorities and on vehicles used by such authorities.”

Most BJP legislators in the state did not hoist the state flag on their official cars or offices.

In March this year, the J&K government had issued a circular saying all “constitutional authorities are enjoined upon to maintain the sanctity of the state flag, at all costs, as is being done in respect of the union flag”. The circular had directed that the state flag shall “always be hoisted jointly on the buildings housing constitutional institutions and shall be used on the official cars of constitutional authorities.” However, a day later, the government withdrew the circular apparently under pressure from the BJP.

In his judgment, Justice Masoodi has reiterated that Jammu and Kashmir enjoins a special position in India and that Article 370 is permanent and can’t be abrogated, repealed or amended.

“The state flag is one of the attributes of constitutional autonomy or limited or residual sovereignty — by whatever names we call it — enjoined by the state of Jammu and Kashmir,” Justice Masoodi observed in his judgment.

While the state government had argued that the circular calling for maintaining sanctity of the state flag was withdrawn because the “mandate or duty is clear and explicit in Section 144 of the State Constitution and that the concerned weren’t to be reminded of their duty to respect the state flag”, Justice Masoodi has termed it “far from convincing”.

Monday, December 28, 2015

SC rejects Maharashtra bid to release 11 policemen

Maharashtra government’s attempt to release 11 policemen serving life terms for killing an alleged member of Chhota Rajan’s gang in a fake encounter in 2006, the Supreme Court Monday rejected a plea to suspend their conviction for six months as per the state government’s order.

A bench of Justice S A Bobde and Justice P C Pant refused to grant any interim reprieve to the police officers, thereby affirming the Bombay High Court order directing them to surrender before jail authorities by January 4, 2016.

On December 21, while staying the state government’s order, the High Court had said it is “shocked and surprised” to see all authorities in unison facilitate the release of the policemen, even as the old, infirm and poor are frequently denied such relief.

Ramnarayan Gupta alias Lakhan Bhaiya, an alleged Chhota Rajan gang member, was killed in a fake encounter on November 11, 2006 in Versova.

An FIR was lodged in 2009 on the orders of the High Court after a special investigation team found that a rival of Lakhan Bhaiya had paid the policemen to kill him. A trial court in 2013 convicted 21 people, including the 11 police officers, and sentenced all of them to life terms. The policemen, who were jailed after the chargesheet was filed in the case, have so far served more than five years in jail

 On December 2 this year, the Maharashtra government issued an order suspending the conviction of the 11 policemen for six months. The government substantiated its order with favourable reports it received from various government agencies and from a sessions court judge. The policemen were released from jail the very next day, compelling Lakhan Bhaiya’s brother Ramprasad Gupta to move the High Court against this order.

The High Court had stayed the government order after agreeing with advocate Yug Mohit Choudhary, counsel for the victim’s brother, who pointed out that pertinent provisions of the Criminal Procedure Code barred the state government from releasing a convict if he or she has been sentenced to life term for an offence entailing death as maximum punishment.

The police officers then approached the Supreme Court, where they raised a question of law regarding interpretation of the CrPC provisions. They argued that the state government wants to release them for only six months since their appeal against the conviction will take time. Further, the state government, the petition contended, cannot be denuded of its power to suspend conviction, which is different from granting remission or commutation.

But the Supreme Court bench observed that no ground for granting interim relief is made out and the policemen should go back to jail until their petition is decided.

On the point of law as to whether the state government has the authority to suspend conviction of an accused before the expiry of 14 years of jail term, the bench agreed to examine the petition, moved jointly by the 11 policemen, and issued notices to the Maharashtra government and Gupta.

Thursday, December 24, 2015

TRAI Asked Reliance To Put Facebook’s Free Basics On Hold.

Once again, the Telecom Regulatory Authority of India (TRAI) has requested your opinion regarding net neutrality and differential pricing of services on the internet. And this time, Facebook has launched its own campaign telling its users to support its “Free Basics”/ initiative.

You might have received notifications from Facebook asking you to send emails to TRAI supporting its Free Basics. But the information Facebook is providing you is entirely misleading.

Following are the facts that Facebook is not telling you and leading you into making an uninformed choice:

1. Other Ethical Models: There are other successful models to provide free Internet access to users without giving a commercial advantage to Facebook and its partners. Such initiatives, for instance, include providing you free access to the entire internet in exchange of viewing an advertisement. Such models preserve net neutrality and bring digital equality at the same time.

2. Data Prices Actually Increase: Facebook doesn’t pay for Free Basics, telecom operators do. Where do they make money from? From users who pay. By encouraging people to choose selected internet services, Facebook increases the costs to access other main parts of the internet.

3. Unfair Advantage: Free Basics isn’t about bringing people online. It’s about keeping Facebook and its partners free, so that Facebook and its partners gain a competitive advantage. Thus the concept inherently violates Net Neutrality.

4. Facebook will Rule the Internet: Free Basics is NOT an open platform. Facebook defines the technical guidelines for Free Basics, and reserves the right to change them. They reserve the right to reject applicants, who are forced to comply with Facebook’s terms.

5. User Privacy Compromised: Facebook gets access to all the usage data and usage patterns of all the sites on Free Basics. No competitor of Facebook will partner with them because it will have to give all its user data to Facebook. Reportedly, Facebook gives data to the National Security Agency (USA) which compromises India’s security as a whole.

6. Users prefer Open Web: Research has shown that people prefer to use the open web for a shorter duration, over a limited set of sites for a longer duration. Free Basics makes few sites free and makes the open web more expensive.

Facebook is unethically recruiting more and more people to support Free Basics without informing them about the above facts. Perhaps thousands of gullible people have already made an uninformed decision by responding to Facebook’s campaign. This makes it more important for the rest of us to write to TRAI showing our support for Net Neutrality and saying no to “Free Basics” and other differential pricing schemes.

The Logical Indian would like to pose the following question:

1. Competition is required for the emergence of better products in the market, and “Free Basics” clearly wants to kill competition. Had “Free Basics” been implemented by Orkut, would Facebook be as successful as it is today?

2. Why doesn’t Facebook organize an open Facebook/Townhall Q&A session and seek the opinion of Facebook users after they are informed of the real facts in detail?

3. Why is “Free Basics” provided only on Reliance network? As Facebook claims this to be the first step towards digital “equality”, shouldn’t every user, irrespective of the service provider he/she is using, have access to “Free Basics”?

4. Countries such as Finland have declared Internet access as a legal right. Why should a private company like Facebook step forward for internet services in India? If a private company can afford to do it in India, shouldn’t the Indian Government step in and do it itself, and make sure no corporate interests are involved in the schemes?

There should be protocol for demolition: Delhi HC

There should be protocol for demolition: Delhi HC

Unhappy with the manner in which a West Delhi slum cluster was recently razed to the ground, the Delhi High Court today said there should be a “protocol” to carry out future demolition drives in the national capital by keeping in mind the “constitutional rights” of the individual.

“During a demolition some protocol has to be followed. It is not that you go and raze the jhuggis,” a bench of justices S Muralidhar and Vibhu Bakhru said, adding that a meeting should be held within four weeks on protocol to be followed in future by all the agencies concerned.

“A draft protocol should be prepared within four weeks thereafter,” the bench said in its direction.

It said that Delhi Urban Shelter Improvement Board (DUSIB) is the statutory authority which is assigned with the tasks of improvement, resettlement and rehabilitation of JJ clusters/ bastis in Delhi, so it will convene a meeting of all the land owning agencies in Delhi, irrespective of what stands these agencies may have with regard to the DUSIB Act.

“The agencies must extend full cooperation,” the court said, adding that the “protocol will be drawn keeping in view the legal, constitutional and human rights obligations of the state”.

It also said that while preparation of protocol, view of the people from the civil society group should also be taken into consideration. Police should also participate in the deliberation of this policy, it said.

The court which has now fixed the matter for January 27 next year, also impleaded Ministry of Urban Development as party to the petition and sought its response on whether it has any policy with regard to JJ cluster.

The court’s order came on a bunch of pleas filed including that of senior Congress leader Ajay Maken, who had sought that the Railway Ministry and Delhi Police should be restrained from carrying out any further demolition drive in Shakur Basti area here, which allegedly left around 5000 people homeless in this chilly winter and caused death of the six-month-old girl. Maken, through his counsel Aman Panwar has also informed

the court that besides ministry and police, DUSIB should ensure that all displaced persons are immediately rehabilitated in temporary relief camps and shelter homes.

The court which has asked National Human Rights Commission (NHRC) to visit the site and see whether the people affected in that area are given proper facilities including food today pointed some deficiency.

To which the court said that the agencies including Delhi government should comply with suggestion of NHRC and put in place the proper “relief and rehabilitation” for displaced.

“Just make sure that people are not deprived on their basic rights,” it said, adding that places and timing for food distribution should be known to everyone in that area.

The bench also said that it would like agencies to explore the possibility of ensuring further safe and secure means of dwelling for the displaced population including an providing an option of occupying some temporary shelter at the nearest possible location.

“The court expects the agencies to act in a coordinated fashion so that there is no duplication of efforts and at the same time relief is provided to every affected person.

“The agencies must be able to identify, within the displaced population, those that are most vulnerable and in need of immediate relief and ensure that they are not denied such relief,” the bench said.

On December 14, the court had come down heavily on the Railway Ministry and police for razing of the slum cluster and directed the authorities to immediately rehabilitate over 5,000 people rendered homeless in biting cold.

It had also said that there should be no further “violence” against those who have been left homeless and had asked the Delhi government to ensure that the children are given education during the rehabilitation program.

Wednesday, December 23, 2015

Chinese lanterns in three days: HC to govt

Residents of the city will miss the spectacle which happens during Uttarayan when the sky is dotted with Chinese lantern. The Gujarat high court on Tuesday directed the state government to ban manufacturing and sale of these lanterns within three days. 

The state home department has been asked to issue notification restricting the ban till January 31, 2016. 

In March, the government responding to a PIL in the court had assured that it would prohibit the manufacturing and sales of the lanterns. The PIL had contested that these lanterns are not only dangerous, but also not environment friendly. The government, however, did not put any restriction on manufacturing or sale as per its promise. 

Sunday, December 20, 2015

All Phones In India Will Eventually Come With A Panic Button

It is unfortunate that despite living in seemingly civilized times that we still have many cases of assault against women. At the moment there are plenty of ways women can protect themselves in such situations, such as taking up self-defense classes, carrying around a whistle to alert others to their situation, carrying mace, and so on.

However what if they’re out without their bags but only equipped with their phones? The good news is that according to Women and Child Development Minister Maneka Gandhi, it seems that phones in India will come equipped with panic buttons in the future.Authority said that this feature is expected to be implemented on all cell phones in the next 6 months.
According to Gandhi, “Every cell phone will have an in-built panic button. Now, all new cell phones will be made with panic buttons. But in case of all old cell phones, you can go to the person who owns the company or the dealer and they will adjust it for you. If a woman is in trouble, she can just press the button on the cell phone and she will immediately get help.”
We have seen similar gadgets invented in the past for exactly these kind of situations, but they were sold separately whereas in this case, they will be baked into the phones themselves, thus making it more accessible in emergency situations.

Drivers Using Phones While Behind The Wheel Will Receive Higher Fines, Larger Penalty Points

Drivers that still use mobile phones even while driving will be caught and receive stronger penalties under new proposals from the government.

From three penalty points, drivers who will be caught will be hit with four on their driving license. The £100 fine will be bumped up to £150.

If a driver receives 12 points in just 36 months, they could be banned from driving. There are also other acts that can lead to receiving penalty points, but the government wants to strengthen their fight against distracted drivers.

"Using a mobile phone at the wheel is reckless and costs lives - I want to see it become a social taboo like not wearing a seatbelt. We will take action to tackle this persistent problem, with an emphasis on the most serious offenders," said Transport Secretary Patrick McLoughlin.

The Department for Transport (DfT) recorded 84 serious and 21 fatal accidents that involved the use of a mobile phone while driving.

Driver who will be caught for the first time may not receive the penalty points on their license immediately. They will be given the opportunity to take an educational course regarding how mobile use while driving can lead to accidents, according to Sky News.

Road Safety Minister Andrew Jones said: "We are increasing the penalty points for HGV drivers because these are big, big vehicles up to 44 tonnes in weight. The consequences of people not paying attention behind the wheel of these vehicles can be significantly greater, so that's why we are treating them differently."

The proposals would still be consulted on in 2016. It would likely gain traction and approval as the Central Motorway Policing Group supports the new proposal. Officers reportedly catch such offenders every day.

Social media is believed to be one of the reasons as to why drivers keep using their phones even while driving. Drivers always want to be connected to their online accounts.

Superintendent Paul Keasey said that drivers want to know everything that is going on with their friends and loved ones "instantaneously." He added that the braking distance is significantly reduced once the driver takes off his/her eyes on the road even for just a second.

Neil Greig from the Institute of Advanced Motorists lauded the government's plans to help make the roads safer for everyone. However, he believes that the stronger penalties and punishments will not have that much impact for the offending drivers.

Instead, Greig suggests that there should be an increase in the number of traffic police officers to enforce these regulations. This would lead to motorists fearing that they would get caught instead of just worrying about the higher fines that they would incur.

Drivers should be focused on driving instead of fiddling with their phones. The advancements in technology, especially for smartphones, may have increased the risks for accidents.

Users can now connect to their social media accounts even while on the road due to 3G and LTE connections. In the past, one would need to directly connect via a desktop or laptop computer before they can access the Internet.

Technology does still have its own benefits for drivers. Some vehicles today have in-car systems that can synchronize with the phone. If a call comes through, the driver can just answer with a push of a button and without needing to actually use the phone.

For drivers using their phones as maps, it is advisable to just use the car's GPS system. A digital assistant can tell the driver when and where to turn so that the eyes can still be fixed on the road.

Saturday, December 19, 2015

Change office time to prevent crowding in trains: Bombay High Court

The Bombay High Court today asked Maharashtragovernment to consider changing office timings to prevent overcrowding in suburban local trains.

Justice Naresh Patil suggested this while hearing a suo motu (on its own) PIL which was converted out of a letter written by A B Thakker urging reservation of a separate compartment for senior citizens in local trains.

The judges also asked the Railways to replace the steel rods at the entrance of bogies with rubber installations so that the hands of commuters do not slip and they do not fall off the trains.

Railway authorities had earlier told the court that it was not possible for them to introduce double decker trains on the suburban routes for commuters.

The bench was of the opinion that every station must have a list of nearby hospitals so that in cases of emergency, accident victims can be taken straight there in ambulances.

The court had earlier directed the Railways to consider providing a dedicated coach for senior citizens to ensure easy and safe access for them. The court had also asked the Railways to conduct a trial run on the concept.

The court had also asked Central Railway and Western Railways to ensure that 14 dedicated seats are made available to senior citizens in all suburban trains.

The Railways said it had put up indications on doors of coaches and inside coaches to show that certain seats had been reserved for senior citizens.

“If there is a dedicated compartment for senior citizens in trains operating at a particular timing, senior citizens would rather wait for that train rather than get onto a crowded train,” observed the HC.

Wednesday, December 16, 2015

Donald Trump Wants To Shut Off The Internet

According to earlier reports, there were claims that the French police had asked the government to consider the idea of disabling public WiFi during emergencies, like terrorist attacks so that the terrorists won’t be able to communicate with each other, or at least making it harder. Turns out that the French police weren’t alone in their thinking.
It seems that Republican Presidential candidate Donald Trump has a similar idea, except that instead of just disabling public WiFi, Trump’s recent comments have suggested shutting down the internet completely. This idea was thrown out during the candidates’ final debate of the year, although Trump later tempered his remark by saying that internet in countries like Syria and Iraq should be shut down.
Trump’s comments are just some of the many suggestions from candidates last night on what they would do to prevent the internet from helping terrorists and the bad guys from communicating with each other. Trump’s idea is a bit extreme obviously, not to mention it would be nearly impossible to do so.
Putting aside the issue of logistics, it would also be wrong as innocents from Syria and Iraq fleeing the country rely on the internet to find safe haven. According to Thomas Ristenpart, a computer science professor at Cornell Tech, “Preventing entire populations from getting access to basic information would be a human-rights catastrophe, particularly for areas of the world that are already war-torn.”

'My Daughter's Name is Jyoti Singh': Nirbhaya's Mother 3 Years After Delhi Gang-Rape

Three years to the day a young medical student was gang-raped and tortured on a moving bus in Delhi, an incident that shook India to the core, her mother revealed her name to the world, saying: "My daughter was Jyoti Singh and I am not ashamed to name her."

At a remembrance meeting organized in the heart of the capital, Asha Devi said she was proud to name her daughter, who came to symbolize the fight for women's safety and security and became the catalyst for major changes to the law on crimes against women.

"I am not ashamed of taking my daughter's name. Whoever has suffered should not hide their name. It is the offenders who should be ashamed and hide their name. I want to tell everyone that my daughter's name was Jyoti Singh. From today, everyone should know her as Jyoti Singh," she said, fighting tears.

Speaking on the youngest of the six rapists, who is expected to be released from a reform home on December 19, she said: "On her third anniversary, the culprit is being set free. Where is the justice is in that?"

Both parents have strongly appealed against the release of the "juvenile".

Actor Shabana Azmi, who attended the meet with her husband and renowned writer Javed Akhtar, said: "They (Jyoti's parents) have changed rape discourse in the country. We need to 'shift the blame, shift the shame'."

In Parliament, where actor-politician Hema Malini said the "juvenile" should be given the same punishment as the other convicts, who have been sentenced to death.

"The juvenile did more harm than the others. He has a devilish mind. He will not be corrected in rehabilitation. He should be punished so that everyone fears the law of the country," Ms Malini, a BJP parliamentarian, said in the Lok Sabha.

The convict was below 18 when he and five others attacked the student and her friend. He was sentenced to three years in a reform home, a punishment seen by many as disproportionate to the enormity of the crime and spurred demands for changes in the law so teenagers involved in serious crimes can be tried as adults.

Dr. Janet Jeyapaul V. SRM University December 15, 2015

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL No. 14553  OF 2015
                    (Arising out of SLP(C) No.11208/2015)

Dr. Janet Jeyapaul                      ………Appellant(s)


SRM University & Ors.                ……Respondent(s)

                               J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed by the appellant-in-person against the judgment and order dated 04.07.2013 passed by the High Court of Judicature at Madras in Writ Appeal No. 932 of 2013 whereby the Division Bench of the High Court allowed the writ appeal filed by the respondents herein against the order dated 08.04.2013 passed by the Single Judge of the High Court in W.P. No. 12676 of 2012 and, in consequence, dismissed the writ petition filed by the appellant herein as being not maintainable.
3. In order to appreciate the controversy involved in this appeal, which lie in a narrow compass, it is necessary to set out the relevant facts.
(a) The S.R.M. University-respondent No.1 herein is the Institution engaged in imparting high education in various subjects. The Central Government has, therefore, on the advise of University Grants Commission (in short “UGC”) declared respondent No.1 as “Deemed University” by issuing a notification under Section 3 of the University Grants Commission Act, 1956 (in short “the UGC Act”). Respondent No.1 is, therefore, subjected to ensuring compliance of all the provisions of UGC Act in its functioning.
(b) The appellant is holding M.Sc. and P.hd. in applied Biology. She was appointed as a Lecturer in the Department of Bio-technology in the Faculty of Sciences and Humanity in the SRM University-respondent No.1. By order dated 05.05.2010, she was promoted as Senior Lecturer w.e.f. 01.04.2010.
(c) On 14.02.2012, the appellant was served with a memo calling upon her to show cause as to why disciplinary action should not be taken against her for the alleged failure to take classes of the students of B.Sc. Third Year degree course and M.Sc. First Year degree course. The appellant submitted her replies on 15.02.2012 and 20.02.2012 denying the allegations and claiming that she took classes for both the courses.
(d) Thereafter, another memo dated 22.02.2012 was issued by the Registrar in-charge of the University referring certain complaints given against her by the students. Refuting the charges, the appellant submitted her reply on 29.02.2012.
(e) Dissatisfied with the explanation given by the appellant, respondent No.1-SRM University constituted an Enquiry Committee and the appellant appeared before the said Committee on 02.03.2012 and stated that she was not furnished the documents and the copies of the complaints. Thereafter she submitted a detailed explanation on 26.03.2012.
(f) Thereafter the appellant received a notice dated 04.04.2012 mentioning therein that the same shall be treated as one month’s notice and she would be relieved from the services w.e.f. 04.05.2012. According to the appellant, she received the notice on 16.04.2012.
(g) Challenging the said notice, the appellant filed Writ Petition No. 12676 of 2012 before the High Court. By order dated 08.04.2013, the Single Judge of the High Court allowed the writ petition, quashed the termination notice and directed the respondents to reinstate the appellant into service.
(h) Against the said order, respondent No.1 herein filed Writ Appeal No. 932 of 2013 before the High Court. By impugned judgment dated 04.07.2013, the Division Bench of the High Court allowed the appeal. It was held that the writ petition filed by the appellant against respondent No.1 was not maintainable as according to the Division Bench, respondent No.1 is neither a State nor an authority within the meaning of Article 12 of the Constitution of India and hence it cannot be subjected to writ jurisdiction of the High Court under Article 226 of the Constitution to examine the legality and correctness of the dismissal order. The Division Bench, therefore, did not examine the merits of the case made out by the appellant successfully before the Single Judge. The Division Bench, however, granted liberty to the appellant to approach the Tribunal for ventilating of her grievance on merits.
(i) Aggrieved by the said judgment, the appellant has preferred this appeal by way of special leave before this Court.
4. Heard appellant-in-person and Mr. Sanjay R. Hegde, learned senior counsel for the respondents.
5. Since the appeal involved a legal issue and the appellant had no legal assistance, we requested Mr. Harish Salve, learned senior counsel, who was present in Court, to assist the Court to enable us to properly appreciate and decide the issues arising in the case.
6. We record our deep sense of appreciation for the valuable assistance rendered by Mr. Harish Salve with his usual fairness and industry and also for submitting his written note on the conclusion of the case on our request.
7. Submissions of Mr. Harish Salve were many fold. According to him, while deciding the question as to whether the writ lies under Article 226 of the Constitution of India against any person, juristic body, organization, authority etc., the test is to examine in the first instance the object and purpose for which such body/authority/organization is formed so also the activity which it undertakes to fulfill the said object/purpose.
8. Pointing out from various well known English commentaries such as De Smith's Judicial Review, 7th Edition, H.W.R.Wade and C.F. Forsyth Administrative law, 10th Edition, Michael J. Beloff in his article Pitch, Pool, Rink,……Court? Judicial Review in the Sporting World, 1989 Public Law 95, English decisions in Breen vs. A.E.U. (1971) 2 QB 175, R. vs. Panel on Take-overs and Mergers, ex parte Datafin Plc and another (Norton Opax Plc and another intervening) (1987) 1 All ER 564, E.S. Evans vs. Charles E. Newton 382 US 296 (1966) and of this Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & Ors. vs. V.R. Rudani & Ors., (1989) 2 SCC 691 and Zee Telefilms Ltd. vs. Union of India (2005) 4 SCC 649, Mr. Harish Salve submitted that perusal of these authorities/decisions would go to show that there has been a consistent view of all the learned authors and the Courts all over the world including in India that the approach of the Court while deciding such issue is always to test as to whether the concerned body is formed for discharging any "Public function" or "Public duty" and if so, whether it is actually engaged in any public function or/and performing any such duty.
9. According to learned counsel, if the aforesaid twin test is found present in any case then such person/body/organization/authority, as the case may be, would be subjected to writ jurisdiction of the High Court under Article 226 of the Constitution.
10. Learned senior counsel elaborated his submission by pointing out that the expression "any person or authority" used in Article 226 are not confined only to statutory authorities and instrumentalities of the State but may in appropriate case include any other person or body performing "public function/duty". Learned counsel urged that emphasis is, therefore, always on activity undertaken and the nature of the duty imposed on such authority to perform and not the form of such authority. According to Mr. Harish Salve, once it is proved that the activity undertaken by the authority has a public element then regardless of the form of such authority it would be subjected to the rigor of writ jurisdiction of Article 226 of the Constitution.
11. Learned counsel then urged that in the light of several decisions of this Court, one cannot now perhaps dispute that "imparting education to students at large" is a "public function" and, therefore, if any body or authority, as the case may be, is found to have been engaged in the activity of imparting education to the students at large then irrespective of the status of any such authority, it should be made amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.
12. Learned counsel further pointed out that the case in hand clearly shows that respondent No. 1 - a juristic body is engaged in imparting education in higher studies and what is more significant is that respondent No. 1 is conferred with a status of a “Deemed University" by the Central Government under Section 3 of the UGC Act. These two factors, according to Mr. Harish Salve, would make respondent No. 1 amenable to writ jurisdiction of the High Court under Article 226because it satisfies the twin test laid down for attracting the rigor of writ jurisdiction of the High Court.
13. In reply, Mr. Sanjay R. Hegde, learned senior counsel for respondent No. 1 while supporting the impugned order contended that if this Court holds that respondent No. 1 is amenable to writ jurisdiction then apart from employees even those who are otherwise dealing with respondent No. 1 would start invoking writ jurisdiction which, according to learned counsel, would open the flood gate of litigation in courts.
14. Having heard learned counsel for the parties and on perusal of the record of the case, we find force in the submissions urged by Mr. Harish Salve.
15. To examine the question urged, it is apposite to take note of what De Smith, a well-known treaty, on the subject "Judicial Review" has said on this question [See De Smith’s Judicial Review, 7th Edition, page 127 (3-
027) and page 135 (3-038)].
“AMENABILITY TEST BASED ON THE SOURCE OF POWER The courts have adopted two complementary approaches to determining whether a function falls within the ambit of the supervisory jurisdiction. First, the court considers the legal source of power exercised by the impugned decision-maker. In identifying the “classes of case in which judicial review is available”, the courts place considerable importance on the source of legal authority exercised by the defendant public authority. Secondly and additionally, where the “source of power” approach does not yield a clear or satisfactory outcome, the court may consider the characteristics of the function being performed. This has enabled the courts to extend the reach of the supervisory jurisdiction to some activities of non-statutory bodies (such as self-regulatory organizations). We begin by looking at the first approach, based on the source of power.” “JUDICIAL REVIEW OF PUBLIC FUNCTIONS The previous section considered susceptibility to judicial review based on the source of the power: statute or prerogative. The courts came to recognize that an approach based solely on the source of the public authority’s power was too restrictive. Since 1987 they have developed an additional approach to determining susceptibility based on by the type of function performed by the decision-maker. The “public function” approach is, since 2000, reflected in the Civil Procedure Rules: CPR.54.1(2)(a)(ii), defines a claim for judicial review as a claim to the lawfulness of “a decision, action or failure to act in relation to the exercise of a public function.” (Similar terminology is used in the Human Rights Act 1998 s.6(3)(b) to define a public authority as “any person certain of whose functions are functions of a public nature”, but detailed consideration of that provision is postponed until later). As we noted at the outset, the term “public” is usually a synonym for “governmental”.”
16. The English Courts applied the aforesaid test in R. vs. Panel on Take- overs and Mergers, ex parte Datafin Plc and another (Norton Opax Plc and another intervening) (1987) 1 All ER 564, wherein Sir John Donaldson MR speaking for three-judge Bench of Court of Appeal (Civil Division), after examining the various case law on the subject, held as under:
“In determining whether the decisions of a particular body were subject to judicial review, the court was not confined to considering the source of that body’s powers and duties but could also look to their nature. Accordingly, if the duty imposed on a body, whether expressly or by implication, was a public duty and the body was exercising public law functions the court had jurisdiction to entertain an application for judicial review of that body’s decisions…….”
17. In Andi Mukta’s case (supra), the question before this Court arose as to whether mandamus can be issued at the instance of an employee (teacher) against a Trust registered under Bombay Public Trust Act, 1950 which was running an educational institution (college). The main legal objection of the Trust while opposing the writ petition of their employee was that since the Trust is not a statutory body and hence it cannot be subjected to the writ jurisdiction of the High Court. The High Court accepted the writ petition and issued mandamus directing the Trust to make payments towards the employee’s claims of salary, provident fund and other dues. The Trust (Management) appealed to this Court.
18. This Court examined the legal issue in detail. Justice K. Jagannatha Shetty speaking for the Bench agreed with the view taken by the High Court and held as under:
“11. Two questions, however, remain for consideration: (i) The liability of the appellants to pay compensation under Ordinance 120-E and (ii) The maintainability of the writ petition for mandamus as against the management of the college………
12. The essence of the attack on the maintainability of the writ petition under Article 226 may now be examined. It is argued that the management of the college being a trust registered under the Bombay Public Trust Act is not amenable to the writ jurisdiction of the High Court. The contention in other words, is that the trust is a private institution against which no writ of mandamus can be issued. In support of the contention, the counsel relied upon two decisions of this Court: (a) Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain, (1976) 2 SCC 58 and (b) Deepak Kumar Biswas v. Director of Public Instructions, (1987) 2 SCC 252. In the first of the two cases, the respondSLP No.11208 of 2015ent institution was a Degree College managed by a registered cooperative society. A suit was filed against the college by the dismissed principal for reinstatement. It was contended that the Executive Committee of the college which was registered under the Cooperative Societies Act and affiliated to the Agra University (and subsequently to Meerut University) was a statutory body. The importance of this contention lies in the fact that in such a case, reinstatement could be ordered if the dismissal is in violation of statutory obligation. But this Court refused to accept the contention. It was observed that the management of the college was not a statutory body since not created by or under a statute. It was emphasised that an institution which adopts certain statutory provisions will not become a statutory body and the dismissed employee cannot enforce a contract of personal service against a non-statutory body.
15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants trust was managing the affiliated college to which public money is paid as government aid. Public money paid as government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character.3 So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.
20. The term “authority” used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words “any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.”SLP No.11208 of 2015
19. This issue was again examined in great detail by the Constitution Bench in Zee Telefilms Ltd. & Anr. Vs. Union of India & Ors., (2005) 4 SCC 649 wherein the question which fell for consideration was whether the Board of Control for cricket in India (in short “BCCI”) falls within the definition of “State” under Article 12 of the Constitution. This Court approved the ratio laid down in Andi Mukta’s case(supra) but on facts of the case held, by majority, that the BCCI does not fall within the purview of the term State. This Court, however, laid down the principle of law in Paras 31 and 33 as under :
“31. Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32.
33. Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226………………….”
20. It is clear from reading of the ratio decidendi of judgment in Zee Telefilms Ltd. (supra) that firstly, it is held therein that the BCCI discharges public duties and secondly, an aggrieved party can, for this reason, seek a public law remedy against the BCCI under Article 226 of the Constitution of India.
21. Applying the aforesaid principle of law to the facts of the case in hand, we are of the considered view that the Division Bench of the High Court erred in holding that respondent No. 1 is not subjected to the writ jurisdiction of the High Court under Article 226 of the Constitution. In other words, it should have been held that respondent No.1 is subjected to the writ jurisdiction of the High Court under Article 226 of the Constitution.
22. This we say for the reasons that firstly, respondent No. 1 is engaged in imparting education in higher studies to students at large. Secondly, it is discharging "public function" by way of imparting education. Thirdly, it is notified as a "Deemed University" by the Central Government under Section 3 of the UGC Act. Fourthly, being a “Deemed University”, all the provisions of the UGC Act are made applicable to respondent No. 1, which inter alia provides for effective discharge of the public function - namely education for the benefit of public. Fifthly, once respondent No. 1 is declared as “Deemed University" whose all functions and activities are governed by the UGC Act, alike other universities then it is an "authority" within the meaning ofArticle 12 of the Constitution. Lastly, once it is held to be an "authority" as provided in Article 12then as a necessary consequence, it becomes amenable to writ jurisdiction of High Court underArticle 226 of the Constitution.
23. In the light of foregoing discussion, we cannot concur with the finding rendered by the Division Bench and accordingly while reversing the finding we hold that the appellant's writ petition under Article 226 of the Constitution against respondent No. 1 is maintainable.
24. This takes us to the next argument urged by learned counsel for the respondents. Placing reliance on para 231 of the decision of this Court in T.M.A. Pai Foundation & Ors. vs. State of Karnataka & Ors. (2002) 8 SCC 481, learned counsel contended that even assuming that the appellant's writ petition is maintainable, yet it should not be entertained for hearing on merits and instead the appellant be granted liberty to approach the District Judge/Additional District Judge of the concerned District which is designated as Tribunal till formation of regular Tribunal for redressal of her grievances as directed by the Constitution Bench in Para 231 of T.M.A. Pai's case (supra).
25. In normal course, we would have been inclined to accept this submission made by learned counsel for the respondents and would have also granted liberty to the appellant to approach the Tribunal in term of the directions given by the Constitution Bench of this Court. But since in this case, the Single Judge not only entertained the appellant's writ petition but he allowed the writ petition on merits whereas the Division Bench held the writ petition as not maintainable and thus declined to examine the merits of the controversy involved in the writ petition.
26. We do not consider it proper to direct the appellant at this stage to approach the Tribunal and file a dispute before the Tribunal. Instead, we consider it just and proper to remand the case to the Division Bench of the High Court to decide the respondent's appeal on merits on the question as to whether the Single Judge was justified in allowing the writ petition on merits.
27. Before parting, we consider it apposite to state that we have not examined the controversy raised by the appellant in her writ petition on merits and confined our examination to the question whether the writ petition against respondent No. 1 was maintainable or not.
28. In view of foregoing discussion, the appeal succeeds and is allowed. The impugned order is set aside. Writ Appeal No. 932 of 2013 out of which this appeal arises is restored to its original number. The Division Bench is requested to decide the appeal expeditiously on merits in accordance with law without being influenced by any of our observations.
[J. CHELAMESWAR] ………..................................J.
[ABHAY MANOHAR SAPRE] New Delhi, December 15, 2015.



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                              I.A. NO.4 OF 2015
                       CIVIL APPEAL  NO. 11133 OF 2011




                                  O R D E R
Chelameswar, J.
1. This application is filed by the appellant in Civil Appeal No.11133/2011. The prayer in the application is as follows: “a) to stay the operation of the impugned Judgment dated 7.9.2011 and suspend further supply of electricity in terms of the PPA during the pendency of this Appeal.
b) in the alternative to prayer (a) above, during the pendency of the accompanying Civil Appeal the Hon’ble Court may direct the Respondent(s) to pay the tariff as per CERC norms for tariff on cost plus basis; and also make the payment from the date of the supply of power under the PPA of the differential amount between the PPA tariff and the tariff as per CERC norms for tariff on cost plus basis on the such terms and condition as this Hon’ble court deems fit as just and proper;” However, prayer (a) was not pressed when the matter was taken up for hearing. A brief background of the appeal and the application is as follows.
2. The appellant company is a power generating company. The 2nd respondent herein is a company owned by the State of Gujarat carrying on business of purchasing power in bulk from power generating companies such as the appellant herein and supplying to various distributing companies in the State of Gujarat.
3. The appellant and the 2nd respondent entered into a Power Purchase Agreement (hereinafter PPA, for short). Under the said agreement, the appellant is obliged to sell 1000 megawatt of power from the appellant’s power project. For various reasons, the details of which are not necessary at this stage, the appellant issued a notice of termination dated 28.12.2009 of the above mentioned PPA w.e.f. 4.1.2010.
4. After some correspondence, the 2nd respondent filed a petition before the Gujarat Electricity Regulatory Commission (the 1st respondent herein) seeking adjudication of the dispute arising out of termination of the PPA by the appellant.
5. The 1st respondent, by its order dated 31.8.2010, set aside the termination notice sent by the appellant and directed the appellant to supply power to the 2nd respondent as per the terms of the PPA.
6. Aggrieved by the said order, the appellant carried the matter in appeal before the Appellate Tribunal for Electricity unsuccessfully. Hence, the appeal No.11133/2011. The appeal was admitted by an order dated 13.8.2012 and since pending. Hence the instant application with averments as follows:
“7. If the relief sought for by the Appellant is not granted, there is a serious risk of Mundra Power Project becoming a Non Performing Asset causing an irreparable harm to the consumers as well as the lenders of the Mundra Power Project. Since the main Civil Appeal is pending adjudication for final hearing and the Appellant is supplying the power to the Respondent No.2 – GUVNL, the present application is being filed to compensate the Appellant upto the actual cost of generation as per CERC norms for determination of tariff. The same is in order to sustain the generation and supply of power pending the hearing of the main Civil Appeal.
xxxx xxxx xxxx
9. It is submitted that whereas the pendency of the present appeal is piling huge losses upon the Appellant no prejudice would be occasioned to the Respondents if the present Application is allowed on an undertaking by the Appellant to refund the amount over and above the PPA tariff that will be paid, to the Respondent No.2 or such other condition as this Hon’ble Court may deem fit. Alternatively, in view of the recurring losses, the Appellant be permitted to suspend further supply of electricity in terms of the PPA during the pendency of this Appeal. This shall meet the ends of justice.”
7. On behalf of the 2nd respondent, an affidavit dated 23.11.2015 is filed. The said affidavit, while contesting the various assertions made by the appellant and its rights, stated:
15. I submit that, without prejudice to the rights of the Respondent No.2 to contest the present appeal, the answering Respondent with the approval of Government of Gujarat has already shown its willingness to pay compensatory tariff prospectively (from next month of CERC order i.e. March 2014) subject to paras 12 and 13 above to resolve the issue by making suitable adjustments in tariff which till date is not implemented because of non acceptance by Appellant and other stakeholders.
16. I say that without prejudice to its rights in the present appeals the Respondent No.2 is willing to implement the decisions of State Govt. for paying compensatory tariff prospectively (from next month of CERC order i.e. March 2014) to resolve the issue by making suitable adjustment in tariff on the directions of the Hon’ble Court. xxxxxx”
8. Shri Prashant Bhushan, learned counsel appearing for respondent No.4 opposed the prayers of the applicant alleging that the 2nd respondent is colluding with the appellant as there is no occasion for the respondent to make any concession such as the one made in the affidavit filed by the 2nd respondent (the relevant portion of which are already extracted above). More particularly, when the 2nd respondent succeeded before two fora below, the concession of the 2nd respondent to pay compensatory tariff to the appellant though said to be subject to the contentions of the respondent in the appeal is nothing but largesse of the State to the appellant and not consistent with public interest. He further submitted that this Court may not affix a stamp of approval for such a decision of the 2nd respondent by passing any order accepting the concession made by the respondent. He also submitted that the payment of compensatory tariff to the appellant would ultimately result in compelling the consumers to pay higher price.
9. On the other hand, Shri Harish Salve, learned senior counsel for the appellant denied the allegations of collusion between the appellant and the 2nd respondent. He argued that the decision of the 2nd respondent is supported by a decision of the State of Gujarat on an assessment of the subsequent developments. He submitted that compelling the appellant to supply energy in terms of the PPA is bound to financially destroy the appellant company and therefore prayed that the 2nd respondent be permitted to make the payment in terms of his concession.
10. A PPA is a contract between the parties and the terms of any contract are nothing but the agreed terms of the contracting parties. It is also a settled principle of the law of contracts that parties to a contract can alter the terms of the contract subsequent to the formation of the contract by mutual consent.
11. However, the rights of the State and its agencies and instrumentalities in the realm of contracts are circumscribed by the considerations of public interest. Apart from such general principle, the rights and obligations of the parties to the PPA in question are also subject to certain statutory prescriptions.
12. The questions (i) whether the appellant is entitled to terminate the PPA and (ii) if so, on what terms and conditions are to be examined in the appeal.
13. Independent of such right, if any, of the appellant, if the parties to the PPA are agreeable to alter the terms of the PPA (as indicated in the counter) for whatever reasons, whether such a variation is consistent with the requirements of the statutes applicable to the contract is a separate question. Whether such a variation is consistent with the larger public interest is altogether a different question. An ancillary question arises whether such an issue can be properly the subject matter of the instant appeal. All these matters require a detailed examination as and when the appeal is taken up for hearing.
14. Coming to the question whether the 2nd respondent be directed to pay the appellant compensatory tariff as indicated in its counter, we are of the opinion no direction can be given at this stage during the pendency of the appeal as the right of the appellant for such compensatory tariff appears to be one of the issues in the appeal.
15. In so far as the question of permitting the 2nd respondent to pay the compensatory tariff as indicated in its counter, we are of the opinion that it requires no permission from this Court. It is upto the 2nd respondent to take a decision in accordance with law to the best of its understanding. We may make it clear that if the 2nd respondent chooses to make such payment, the same shall be subject to the result of the appeal.
The I.A. is disposed of as indicated above.
(J. Chelameswar) …….……………………….J.
(Abhay Manohar Sapre) New Delhi;
December 3, 2015