Society even now is grappling to come to terms with same-sex orientation: Madras High Court to hear same-sex couple’s plea for protection

In a case filed by Ganesan and Manuraj Legal LLP, the Hon’ble High Court was pleased to grant police protection and observed that the Case in hand requires to be dealt with more sensitivity and empathy

https://www.barandbench.com/news/litigation/madras-high-court-same-sex-couple-plea-protection-society-same-sex-orientation-not-accepting

POLICE PROTECTION TO SAME SEX COUPLE

In a welcoming move, the Madras High Court was pleased to grant police protection for a same sex couple in a case filed by Ganesan and Manuraj Legal LLP. Mr S. Manuraj, the Counsel for the Petitioner argued that the couple face harassment in the hands of the police and parents and requested the Court to grant police protection and appropriate direction to ensure their safety.

The court observed that the Case in hand requires to be dealt with more sensitivity and empathy and that it is a sample case of how the society even now is grappling to come to terms with same sex orientation and ordered to hear the parties in camera.

#madrashighcourt#samesexcouple#progress#inclusivity

Sri Nilanjan Bhattacharya Versus The State of Karnataka and Others

Civil Appeal No 3284 of 2020

(Arising out of SLP (C) No 7146 of 2020)

Sri Nilanjan Bhattacharya versus The State of Karnataka and Others

Facts of the Case :

Appeal arises from a judgment of a Division Bench of the High Court of Karnataka, on a petition for habeas corpus filed by the appellant, who is the father of a three and a half year old child. The appellant is aggrieved by the conditions which were imposed by the High Court while allowing him to take the child back to the United States of America

Issues:

The Conditions that were imposed by the High Court of Karnataka while issuing orders are as follows:

“Under the circumstances, this writ petition is  allowed holding that the minor child – Master Adhrit Bhattacharya is required to be repatriated to USA in compliance of the order of New Jersey Court. However, the repatriation shall not be made until normalcy is restored with reference to health scenario in USA in the aftermath of COVID – 19 pandemic. Therefore, we would observe as under:

(a) That the minor child shall be repatriated only after a certificate being issued by the Officer of the rank of District Health Office of Bengaluru in certifying that this  Country is free of COVID – 19 pandemic and it is safe for the travel of minor child to USA;

(b) Simultaneously the petitioner herein shall also secure a certificate from the concerned Medical authority at USA in certifying that the condition in USA, particularly in the region where the petitioner is residing is congenial for shifting the residence of minor child – Master Adhrit Bhattacharya in compliance of the order passed by the Court of New Jersey;

 (c) On production of such documents, the authorities concerned are directed to permit repatriation of the minor child – Master Adhrit Bhattacharya from Bengaluru, India to USA;

(d) While doing so, it is also observed that in the event if the respondent – wife is reconsidering her decision in relocating herself to USA and settle there in the interest of the minor child, all liberties are reserved to her to take the child along with her subject to securing the certificate as referred to supra and on reaching USA to approach the competent court which has passed the interim order of custody of minor child to the petitioner and also for modification of the same by explaining the circumstances under which she is staking her claim for the custody of the child;”

The correctness of these conditions were challenged by the Appelant in this case.

PRECEDENTS RELIED UPON:

  1. Nithya Anand Raghvan vs. State (NCT of Delhi)  (2017) 8 SCC 454

This Court observed that in cases where the child is brought to India from a foreign country, which is their native country, the Court may undertake a summary inquiry or an elaborate inquiry. The Court exercises its summary urisdiction if the proceedings have been instituted immediately after the removal of the child from their state of origin and the child has not gained roots in India. In such cases, it would be beneficial for the child to return to the native state because of the differences in language and social customs.

While discussing the powers of the High Court in issuing a writ of habeas

corpus in relation to the custody of a minor child, this Court further observed:

“46… Once again, we may hasten to add that the decision of the court, in each case, must depend on the totality of the facts and circumstances of the

case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign

court against a person within its jurisdiction and convert that jurisdiction into that of execution court.”

  • In Prateek Gupta vs. Shilpi Gupta (2018) 2 SCC 309, this Court clarified that even if there is a pre-existing order of a foreign court with respect to the custody of the child, the principles of comity of courts, and “intimate contact and closest concern” are subservient to the predominant consideration of the welfare of the child.
  • In Ravi Chandran vs. Union of India (2010) 1 SCC 174 it was held that Where a child has been removed from their native country to India, this Court has held that it would be in the best interests of the child to return to their native country if the child has not developed roots in India and no harm would be caused to the child on such return

GROUNDS:

  1. Parens patriae – interest and the welfare of the child

JUDGMENT

The conditions which have been imposed by the High Court in clauses (a) and (b) of paragraph 18 of the judgment and order dated 7 April 2020, do not sub-serve the interests of justice. The conditions shall accordingly stand set aside. We, however, record the undertaking of the appellant that in traveling to the US with the child, the appellant shall make all necessary arrangements in accordance with the prevailing regulations prescribed by the Indian and US governments for international travel between India and the US.

To read the full judgment : https://www.livelaw.in/pdf_upload/pdf_upload-382388.pdf

Vijay Mallya may use these 3 options to stall extradition

HIGHLIGHTS

  • Vijay Mallya may have three last options to stall extradition
  • One of the options is appealing to the UK Home Secretary Priti Patel. 
  • Mallya’s appeal against extradition at Supreme Court level already denied

Beleaguered liquor baron Vijay Mallya, who was denied permission to appeal against his extradition order at Supreme Court level, has three more options left to explore to defend himself.

One of the options is appealing to the UK Home Secretary Priti Patel.

Explaining the process, Barrister Mathupandi Ganesan, an expert in extradition law, said Mallya can make further representations to the home secretary based on fresh evidence.

“Mallya has the option of making further representations to the UK home secretary based on new evidence or intervening event such as the pandemic and the Covid-19 crisis,” Ganesan added.

“The evidence has to be strong for the UK Home Secretary or the high court to reconsider the issues on human rights,” says the Barrister Muthupandi Ganesan.

Ganesan said one “potential argument” Mallya could mention regarding the Arthur Road jail in India, where he will be loaded after extradition.

“The potential argument could on be about Arthur Road jail not having sufficient facilities, process and capacity to keep him safe from Covid-19 in the jail.”

The extradition of Mallya was ordered by the Westminster Court on December 10, 2018. The Home Secretary had signed the extradition order of Vijay Malla on February 3, 2019.

Since then, he has appealed against the high court’s judgement, after a long hearing in the case. Eventually, the high court denied permission to appeal at Supreme Court too.

As per law, UK Home Secretary bases his/her decision of signing an extradition order on the following grounds:

* The person could face death penalty (unless the Secretary of State gets adequate written assurance that the death penalty will not be imposed or, if imposed, will not be carried out.

* There are no speciality arrangements with the requesting country ‘speciality’ requires that the person must be dealt with in the requesting state only for the offences for which they have been extradited (except in certain limited circumstances)

* The person has already been extradited to the UK from a third state or transferred from the International Criminal Court and consent for onward extradition is required from that third state or that Court (unless the Secretary of State has received consent)

Over and above these, are the discretionary powers and thus representations can be made to the office of the Home Secretary, innumerable times till the very last day of being extradited.

For instance, let’s take the case of Tiger Hanif, a man wanted by India in relation to two bombings in Surat, Gujrat.

One bombing in January 1993 in Surat’s Varacha Road market killed an eight-year-old girl and another one in occurred in April 1993 at the Surat Railway Station.

Hanif aka Mohammed Hanif Umerji Patel, who is believed to be from Dawood Ibrahim’s gang, was ordered to be extradited in June 2012 by the then Home Secretary Theresa May, but later requited.

A recent statement from the Home Office said, “We can confirm that the extradition request for Hanif Patel was refused by the then Home Secretary and he was discharged by the court in August 2019.”

In that period, the Home Secretary was Sajid Javid.

The valid question that arises is how long the UK Home Secretary mull over a case? As per Barrister Ganesan, “The Home Secretary can take as long as required to give the final certificate for extradition between UK and India so can be more than 28 days, if it is in the interest of the person being extradited for e.g. due to new evidence coming into play or for some other national security reasons etc. Normally, the Defendants don’t complain as it means they get to stay longer in the UK.”

Political asylum under immigration law

Another option that Vijay Mallya can explore is seeking political asylum under immigration law.

“He can take this route anytime he likes. Political asylum falls under immigration laws and it is a totally separate procedure. This is a potential legal avenue, but he has to really demonstrate that he will be persecuted if he returns to India,” says Barrister Ganesan.

European Court of Human Rights

The last resort involves the European Court of Human Rights. Despite Brexit, the UK is still in transition period of moving out of the European Union. Therefore, Mallya can approach the European Court of Human Rights.

“He could apply under Rule 39 of the European Court of Human Rights to get a stay of his extradition pending the formal application to review his extradition to India. These applications are known as interim measures. These are usually only for very limited circumstances for eg. Where there is a threat to life, ill-treatment namely prohibition of torture and inhuman or degrading treatment),” says Barrister Ganesan.

The Interviewee Mr Muthupandi Ganesan, a Barrister and an expert in Extradition Laws is a Partner at Ganesan and Manuraj Legal LLP

Link to full article on India Today : https://www.indiatoday.in/india/story/vijay-mallya-extradition-india-uk-london-home-secretary-coronavirus-1679913-2020-05-20

The Data Protection regime and compliance in India

The landmark judgment delivered in Justice (Retd.) KS Puttaswamy v. Union of India has endorsed the notion that the threat of breach of confidential data has become a major concern that affects us all.

Under Indian law, as per the Information Technology Act, there exist some remedies against the data processing entity for data breach. However, there is no clear-cut notion of where the buck stops within that entity and there have not been cases awarding compensation so far.

A recent judgement delivered by the Supreme Court of the United Kingdom in WM Morrison Supermarkets PLC v. Various Claimants lays down that vicarious liability shall not apply in cases of data breach. For the first time, there is now clarity on how employers can be held liable for any breach of confidential data by their employees.

It is also entirely likely that Indian courts, operating under the proposed Data Protection Act, will follow the precedent laid down by the Supreme Court of the United Kingdom.

The Morrison Judgment

In 2013, Andrew Skeleton, a disgruntled employee of M/s. WM Morrison Super Markets PLC (Morrison), was working with their internal audit team and was entrusted with the task of collating payroll data of the employees. Mr. Skeleton made a copy of the payroll data and, out of vengeance, proceeded to leak the same online.

Thousands of Morrison employees affected by the breach of data filed suits for compensation from Morrison. Two lower courts as well as the Court of Appeal ruled that Morrison was vicariously liable. Aggrieved by the said orders, Morrison had preferred an appeal to the Supreme Court of the United Kingdom (UK).

The UK Supreme Court, while considering the applicability of the UK Data Protection Act 1998 (UK Act), held that the liability of the data controller including that of his employee is based on reasonable care. The judgment, authored by Lord Reed, agreed with arguments advanced by Morrison that the UK Act indicated that “liability was to be imposed only on data controllers, and only where they had acted without reasonable care”.

The ratio laid down by Lord Nicholls in Majowrski v. Guy’s and St. Thomas NHS Trustthat a “precondition of vicarious liability is that the wrong must be committed by an employee in the course of his employment” was followed in the present case. Therefore, it was held that since the UK Act does not include vicarious liability, Morrison could not be held liable for the actions of its employee.

The Data Protection Regime in India

Data breach from computer systems, including payment of compensation and punishment in case of wrongful disclosure and misuse of personal data, are governed by the Information Technology Act, 2000, specifically Sections 43-A and 72-A therein.

The collection and disclosure of sensitive personal data or information are laid out under the Information technology (Reasonable Security Practices and Procedure and Sensitive Personal Data or Information), Rules 2011. Under the 2011 Rules, body corporates are required to have a Privacy Policy, obtain prior consent for collection of personal data, have restrictions on data usage for lawful and necessary purposes and non-transferability of personal data. Therefore, there exists tortious remedies against private entities for any breach of sensitive personal data.

In the Puttaswamy case, the Supreme Court had affirmed that the Right to Privacy is a constitutional right. Therefore, any party, complaining of privacy breach has the right to initiate appropriate legal proceedings, under writ jurisdiction, for the enforcement of their rights against the state.

A recent case pending before the Kerala High Court involving a customer relationship management software called Sprinklr has brought these issues into focus and may be a test case to understand how liability is fixed.

The Personal Data Protection Bill, 2019 (PDP Bill) has been tabled before the Lok Sabha and is yet to be enacted. The PDP Bill proposes a legal framework to provide for data autonomy, regulate the flow of data, to establish the right of the data providers, establishment of a framework for the processing of data, establishment of data protection authority, and to provide remedies and penalties for the violation or unauthorized processing or use of data.

It is expected that the passage of PDP Bill will lead to a replacement of the legal framework and repeal of the Section 43-A of the IT Act and 2011 Rules.

Data Breach and Damages

Under the IT Act, the 2011 Rules and the PDP Bill, there are penalties provided for data breach. However, none of these statutes provide for vicarious liability of the employer arising out of the act or breach committed by the employee.

It would therefore be instructive to turn to general principles of tort law relating to vicarious liability such as:

(i) The act committed by the employee should be within the scope of employment,

(ii) duly authorized by the employer and

(iii) in the course of the employment.

Though the existing statutory provisions as well as the PDP Bill are silent on vicarious liability, common law application of vicarious liability principles listed above may still guide courts in fixing accountability for any breach. However, the key determinant in assessing liability would be whether sufficient and reasonable safety measures have been put in place before the data breach.

The Way Forward

A survey by Ernst and Young in 2018 titled Global Forensic Data Analytics Survey revealed that 60% of Indian companies were unaware of data privacy best practices such as General Data Protection Regulations (GDPR). According to the survey, only 31% felt that they were GDPR compliant.

Today, under the restrictions imposed by the COVID-19 lockdown, private sector companies have adapted to a work-from-home model. With courts moving to e-filing process as well, there is a tremendous increase in the amount of data transfer and transmission of sensitive personal information.

Therefore, it is imperative and timely to assess in the present scenario whether organizations have implemented sufficient safeguards for protecting data, if adequate and reasonable safety measures are in place, and that those personnel handling sensitive data are properly trained.

During the COVID-19 lockdown, the notion of informational privacy as expressed in the Puttaswamy judgment assumes increased significance. Justice RF Nariman described informational privacy as “which does not deal with a person’s body but deals with a person’s mind, and therefore recognizes that an individual may have control over the dissemination of material that is personal to him”.

In the same judgement, Justice Dr DY Chandrachud held that “informational privacy is a facet of the right to privacy” and thatthe “dangers to privacy in an age of information can originate not only from the state but from non-state actors as well”.

In this context, and from the ratio laid down in the Morrison judgment, it would be imperative for all organizations to draw a roadmap towards setting higher data privacy standards.

The authors are Muthupandi Ganesan, Manuraj Shunmugasundaram and Shrinikethan Tellakulla, Advocates at Ganesan and Manuraj Legal LLP.

COVID’19 – Can the Government protect migrants from Eviction?

Across the world, countries and governments have adopted social distancing as an important measure to control the community transmission of COVID-19. In India, the Union Government, using powers under Disaster Management Act 2005, implemented a number of steps to shut down commercial and non-essential activities for a period of three weeks across the country, starting from 24 March 2020, effectively imposing a lock down. While this was meant to facilitate social distancing, large numbers of inter-state migrants, whose employment lifelines were consequently cut off, congregated in major cities in the hope of traveling back to their home towns and villages. This led to a secondary and unforeseen challenge that caught Union and State Governments unaware and unprepared. In order to control the movement of inter-state migrants, the Union Government, passed further orders under Disaster Management Act 2005. A careful reading of these orders reveals that while they were likely issued with good intent, the effectiveness and legal soundness of these orders are highly questionable. 

Order on Movement of Migrants

On 29 March 2020, the Union Government had realized the extent of “movement of a large number of migrants” and decided to exercise powers conferred under S.10(2)(1) of the Disaster Management Act 2005 and issued further directions to State and Union Territories (“Order”). Specifically, the Home Secretary directed measures with regard to residential tenancy of migrants, as follows:

iv. Where ever the workers, including the migrants, are living in rented accommodation, the landlords of the properties shall not demand payment of rent for a period of one month.

v. If any landlord is forcing labourers and students to vacate their premises, they will be liable for action under the Act”

The intent of the Order is ostensibly to provide protection to workers, labourers and students who are in residential tenancy from payment of rent and vacation of premises. However, a careful scrutiny of the Order raises more questions and concerns than it intends to address. First, the Order has the effect of interfering in a private contractual relationship between landlord and tenant. Whether this is per se permissible and in vires of the Indian Contract Act, 1872 is not clear. The Order also seems to have the effect of creating a class of “workers, including the migrants” who “are living in rented accommodation” and consequently, implies that landlords may collect rent from all other persons. It is trite that any such classification must pass the test laid down under Article 14 of the Constitution. As such, if the intent is to ensure social distancing across the entire country and protect tenants from any eviction during the lock down period, then the Order is conspicuously silent on why other classes of persons are not provided with the same protection. 

Second, nowhere does the Order define any of these classes or categories whom it seeks to exempt from rental payments or protect from eviction. There is no definition of migrant under the Disaster Management Act or similarly placed laws. Though the definition of worker or labourer could be borrowed from the Industrial Disputes Act, 1947, the Order makes no such mention of the same. Furthermore, there is no clarity on the class of ‘students’ either. The resultant ambiguity is directly at odds with the objectives of the Order and the Union Government.

Third, there is no penalty provided for those who violate the Order other than the penal provisions under Disaster Management Act 2005 itself. Consequently, without any statutory deterrent, the effectiveness of the Order relies entirely on migrants / labourers / workers and students who are affected pursuing civil remedies. As such, this is a weak and impractical presumption as these groups of persons would not have the means to seek legal recourse to any injury. Therefore, in essence, it defeats the purpose for which the Order has been issued.  

United Kingdom Approach

It is interesting to look at the approach taken by the United Kingdom to address identical issues and implement social distancing. The Coronavirus Act 2020 which has come into force from 26 March 2020, specifically Section 81 read with Schedule 29, contains provisions to protect residential tenants from being evicted from a property during the coronavirus outbreak period. The Coronavirus Act 2020 effectively amends Rent Act 1977 thereby prohibiting the landlord from commencing eviction proceedings for a three-month period by extending the statutory notice period. This has been reflected in the Courts by amending the practice direction 51Z wherein all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of three months. In essence, therefore, the UK law has the effect of protecting all tenancies from eviction over the next three months at least during the coronavirus pandemic. This is a much better situation as all tenants are protected and this would go a long way in ensuring that there are no tenants rendered homeless and therefore needing to make any inter-city or inter-state travel during the specified period.

It is also trite that Entry no. 18 in List II (State List) empowers the State Government to enact legislation in respect of “land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization”. Therefore, it would have been advisable to allow the State Governments to deal with issues that may arise incidental to or in connection with such migration either through a promulgation of an ordinance amending the Rent Control Act of the respective state or by amending Rules under the relevant rental laws rather than by the issuance of an ambiguous Order under the Disaster Management Act 2005. For instance, the appropriate provisions under Chapter V of the Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act 2017 could have been amended as required to provide a statutory solution to the problem. This would have been a more effective means to maintain the practice of social distancing as all tenants are guaranteed rental accommodation through a statute which is legally binding. In contrast, the Order issued by the Home Secretary is legally unsound and, at best, an appeal on moral grounds.

Manuraj Shunmugasundaram & Niraimathi N.

Advocates, Ganesan and Manuraj Legal LLP, Chennai-based law firm.

View More : https://www.livelaw.in/columns/can-government-protect-migrants-from-eviction-155147

COVID’19 – ACCESS TO JUSTICE THROUGH VIRTUAL COURT HEARINGS

Time for India to embrace Virtual Courts even after the Coronavirus lockdown?

Time for India to embrace Virtual Courts even after the Coronavirus lockdown?

The COVID-19 pandemic has had a significant impact on the legal fraternity of India. Following the imposition of the 21-day Coronavirus lockdown, starting with the Supreme Court, many High Courts and subordinate courts have suspended work for the next three weeks or have notified minimal sitting.

Therefore, under the prevailing circumstances of social-distancing and minimising physical contact, the key consideration is how can the judicial system still operate effectively and ensure timely delivery of justice?

It is universally accepted that independent, timely, and fair delivery of justice in a society is vital to the functioning of democracy as it provides a critical check-and-balance against the function of the executive and the legislatures.

On March 19, the importance of the court systems as an important part of public service was articulated by the Chief Justice of England and Wales, when he stated as follows:

We have an obligation to continue with the work of the courts as a vital public service, just as others in the public sector and in the private sector are doing…”

The Supreme Court of India has endeavoured to continue hearing cases with limited sittings during the week. Similarly, many high courts have notified special sittings in a limited capacity to attend to urgent matters

Virtual Courts in India

Interestingly, in a deviation from regular practice, the High Courts of Bombay and Karnataka issued notifications adopting virtual courts using video conferencing facilities on March 17 and 21. These are timely developments, despite having been driven by COVID-19 situation, to utilise the advances in the information and communications technology to deliver justice at a crucial time and under unprecedented circumstances.

The Supreme Court, through its Secretary General Sanjeev Kalgaonkar, on March 23, also notified the use of “Vidyo” app for facilitating hearings via video-conferencing. It is believed that upon request by Senior Advocate Abhishek Manu Singhvi, the Court was willing to extend the video-conferencing facilities even to the offices of counsel.

Hearing conducted via Video conference in Supreme Court
Hearing conducted via Video conference in Supreme Court

Virtual Courts in the UK

Many other countries have been using video and audio enabled hearings for the past 15 to 20 years.

In England and Wales, pursuant to The Access to Justice Act 1999 the range of hearings include criminal remand, bail and sentence hearings, family and civil court interim hearings. In addition, more recently, Section 28 of the Criminal Evidence Act 1999 of England and Wales provides for pre-recorded cross-examination to be shown as evidence in trial in cases involving vulnerable or intimidated witnesses. These are part of what are known as “special measures” to enable a victim to give evidence in criminal trials and was subject of detailed guidance by the Court of Appeal in the case of R v PMH [2018].

Pros and Cons

Clearly, having video and audio enabled hearings is beneficial as it saves significant court costs in terms of building, staff, infrastructure, security, transportation costs for all parties to the court proceedings, especially transfer of prisoners from jails.

The use of video and audio enabled hearings have also faced significant legal and practical problems including admissibility and authenticity of the evidence received through the video and/or audio transmissions, the identity of the witness and/or individuals subject of the hearings, the confidentiality of the hearings.

The practical issues have been wide ranging; they include poor quality of internet connection, poor and outdated the audio and video equipment, power cuts, inability to establish connection at the agreed time, inability for multi-party to partake especially involving interpreters and vulnerable witnesses.

So, it is crucial to have good infrastructure for audio-video enabled hearings to be effective and successful. This would involve significant investment in court and IT infrastructure.

It is important to note that the use of Virtual Courts is completely distinct and different from video and audio enabled hearings for specified matters. Critics of Virtual Courts in the United Kingdom have argued that it is contrary to the fundamental tenets and principles of open justice which is part of the common law as well being enshrined under Article 6 of the European Convention on Human Rights, as it may not be possible for the public to participate in the proceedings.

COVID-19 and Beyond

Across the world, we are witnessing lockdown of public and private services in an attempt to deal with the COVID-19 pandemic. However, in such extraordinary circumstances, the role of the judiciary is even more vital to the survival of democracy.

In a letter to his colleagues on March 24, Chief Justice of the Republic of South Africa Mogoeng Mogoeng emphasized that the Courts “have to stay open in case members of the public want to bring one challenge or another in relation to the constitutionality or validity of the measures being implemented”.

The United Kingdom is bringing in emergency legislation, The Coronavirus Bill (2020), to expand the use of the video and audio link to variety of different proceedings including allowing the public to participate in court and tribunal proceedings through audio and video, so as to alleviate any concerns surrounding the issues of open and fair justice.

In this context, the notifications issued by the High Court of Karnataka and Supreme Court are welcome and extremely important steps in these unprecedented times.

During the lockdown period, it is crucial for the constitutional courts to be open and accessible in order to nurture confidence among the litigant public. Going forward, it needs to be considered carefully by the Supreme Court of India and the Law Commission of India whether relevant rules and in the High Courts as well as in the lower courts can be amended so that video and audio enabled hearings can take place for the benefit of the public even beyond the COVID-19 lockdown period.

The authors are advocates and founders of Chennai-based law firm Ganesan and Manuraj Legal LLP.

This Article was published by Bar and Bench. View More : https://www.barandbench.com/columns/litigation-columns/time-for-india-to-embrace-virtual-courts

Not an unfettered right

Sovereignty is subject to constraints

The UN High Commissioner for Human Rights, Michelle Bachelet,filed an application seeking to intervene as amicus curiae in the pending litigation in the Supreme Court against the Citizenship (Amendment) Act, 2019. That the case has attracted the attention of the international human rights agency is a matter of concern for the Indian government. On the other hand, the intervention may enable the Supreme Court to read in public international law principles in determining the constitutionality of CAA. Ultimately, this would assist in laying down the law on concepts of sovereignty in addition to determining the obligations of a nation-state to the international community at large.

A precedent?

The application is based on the belief that the High Commissioner’s intervention will provide the Court “with an overview of the international human rights norms and standards with respect to the state’s obligations to provide international protection to persons at risk of persecution in their countries of origin”. This application stands out for a number of reasons. First, this is a voluntary application rather than at the invitation of the Supreme Court. Second, she accepts that India is a state party and signatory to various international conventions including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Culture Rights which contain important non-discrimination clauses, including on the ground of religion. India is obliged, under international law, to ensure that migrants in its territory or under its jurisdiction receive equal and non-discriminatory treatment regardless of their legal status or the documentations they possess.

In response, the External Affairs Ministry argued that “no foreign party has any locus standi on issues pertaining to India’s sovereignty”. The High Commissioner has filed similar amicus curiae briefs on issues of pubic importance before a range of international and national judicial fora. However, this intervention, if permitted, would serve as a precedent for a number of future applications. It would also provide an opportunity for the Supreme Court to lay down the law on whether such applications interfere with national sovereignty.

Sovereignty as responsibility

International Court of Justice judge James Crawford defines sovereignty as, among other things, the “capacity to exercise, to the exclusion of other states, state functions on or related to that territory, and includes the capacity to make binding commitments under international law” and states that “such sovereignty is exercisable by the governmental institutions established within the state”. The Preamble to the Constitution lays out the position, wherein the people of India have resolved to constitute Indian Republic into a sovereign and not just any one authority. As such, the courts (judiciary), the government (executive) and elected legislatures (legislature) are equally sovereign authorities. No one can claim exclusivity over sovereignty. Furthermore, Article 51 (c) of the Constitution directs the state to “foster respect for international law”.

According to the International Commission on Intervention and State Sovereignty, “national political authorities are responsible to the citizens internally and to the international community through the UN”. Therefore, it is trite to say that an authority’s right to sovereignty is not unfettered. It is subject to constraints including the responsibility to protect its citizenry and the larger international community. Furthermore, Article 14 extends the right to equality to all persons, which is wider than the definition of citizens. Even illegal immigrants shall, consequently, be treated by the government in a manner that ensures equal protection of Indian laws. It is hoped that the Supreme Court will conclude that the intervention is necessary as the Court would benefit from the High Commissioner’s expertise in public international law principles.

Manuraj Shunmugasundaram is an advocate (Madras High Court) and DMK spokesperson & Muthupandi Ganesan is Barrister-at-Law, U.K.

Published by “The Hindu” on 23.03.2020 https://www.thehindu.com/opinion/op-ed/not-an-unfettered-right/article31136495.ece

COVID 19 : Administrative Orders for Adjournment are Problematic

The impact of Covid-19 is being felt across the world and a variety of institutions, including judicial fora, have advocated urgent steps to contain the spread of the infection. With the Supreme Court taking the lead in implementing mitigatory measures to reduce the risk of infection and introducing heightened screening processes in its premises, other courts and tribunals have followed suit. Directions have been issued by various courts and tribunals in this regard which come into effect immediately. While the intent behind these directions are beyond doubt, there is a serious concern whether they are in accordance with law and established procedure.

The National Company Law Tribunal (NCLT) has published a notice dated 15.03.2020 through its Registrar, Shiv Ram Bairwa. The notice, which is said to have been issued “with approval of Hon’ble Acting President, NCLT“, satisfies the principle of independence of judiciary, as articulated in Article 50 of the Constitution of India. There is also sufficient scientific and empirical evidence to implement social distancing measures. Therefore, the notice cannot be faulted for placing restrictions on over-crowding. However, on closer look, there is a serious concern which requires careful scrutiny.

The notice goes on to provide an overarching direction that NCLT benches “may take up matters which require urgent hearings on request made by the concerned parties“. Subsequently, and problematically, it attempts to enter the judicial thicket by further directing that “to rest of the matters, from 16.03.2020 to 27.03.2020, keep giving adjournments“. This is precisely where the notice changes colour from being an Administrative Order to one with strong judicial overtones.

The difference between an Administrative Order and a Judicial Order has been dealt with on numerous occasions by the Supreme Court of India. In the case of Shankarlal Aggarwal And Ors vs Shankarlal Poddar And Ors (1963), the court opined as follows:

.. we conceive that an administrative order would be one which is directed to the regulation or supervision of matters as distinguished from an order which decides the rights of parties or confers or refuses to confer rights to property which are the subject of adjudication before the Court.

The view of the courts has been that any determination on the rights of parties involved in a legal dispute i.e. lis would necessarily be a judicial order or decision. It would necessarily follow that an order of adjournment of proceedings directly affects the rights of the parties; and therefore, can only be made on the judicial side and, consequently, is wholly a judicial order. Therefore, any direction to “keep giving adjournments” ought not to be given on the administrative side of a judicial institution and as such, would not be in accordance with law.

In an extreme scenario, such an administrative order, in the form of a notice, cannot set a precedent for future directions to, say, cancel all bail applications or dismiss all Habeas Corpus proceedings in a hypothetical situation of national security emergency.

In the case of Shanti Bhushan vs Supreme Court 2018, the court recalled the words of Mr. Justice Holmes in Northern Securities Co. v. United States, 48 wherein he had said: “Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.”

There is no doubt that we are witnessing an unprecedented global pandemic situation and that all institutions have been pressed into service to assist. However, we need to exercise caution when directions such as this are issued where the difference between the judicial and administrative sides are unclear that we end up entering the judicial thicket.

The Insolvency and Bankruptcy Code (Amendment) Ordinance 2019

Government of India – Ministry of Law and Justice has brought into force The Insolvency and Bankruptcy Code (Amendment) Ordinance 2019 to further amend the Insolvency and Bankruptcy Code 2016. The new amendments will remove various ambiguities in the Insolvency and Bankruptcy Code 2016.

https://ibbi.gov.in/uploads/legalframwork/d6b171ec9b9ea5c54f7423bc36f92977.pdf