“Aarushi Talwar Murder Case: Demystifying Series of Circumstantial Evidence.”

By-Rishabh Taneja & Anshu Rajput

“As she melts into the ocean of time mysteriously, still her soul craves for justice, with expectation that one day; the light of the divine court will enlighten and say ‘Return, O Children of Man!..’”

— Anonymous

   

INTRODUCTION

 ‘Every criminal leaves a trace’, one such principle which aptly summarized Edward Locard’s “Theory of Exchange.” In voluminous cases, this principle has reaffirmed itself to the extent that justice has prevailed in each one of them. The idea is firmly subjective; but acts as a compelling and motivating factor simultaneously to signify the direction to proceed in the investigation and the thirst to find evidence to take down the criminal. The Preamble of the Indian Constitution unequivocally points toward the principle of “Social Justice”. Aristotle says “Man is by nature a social animal.” Having stated that, it is a well settled fact that this social animal i.e. every human reacts differently to different situations. This universal fact is the very basis in understanding and establishing the foundation of formation and disruption in the chain of events in Aarushi Talwar Murder Case. This fact will not only clarify the conduct of the accused couple, but also the conduct of the investigating agencies of the system; which shook the foundation of justice and led to such a situation which any human could have barely imagined.

This paper tries to explore the minutest details of circumstantial evidence, in accordance and vision with the Indian Evidence Law and streamline the string of situations which could have been avoided by due diligence and intelligence by non-contamination of the initial crime scene. This case is a perfect example which turned out to be an emotional turmoil for the society and still will be remembered vastly in criminal jurisprudence.

FACTS OF THE CASE- THE PREFATORY (CLUBBED)

  1. The accused couple in the case was Dr. Rajesh Talwar, specialized in Prosthetic Dentistry and Dr. Nupur Talwar, specialist in Orthodontics who filed an appeal in the Allahabad High Court under section 374 (2) of the Code of Criminal Procedure against the judgment of Ghaziabad Trial Court, which convicted and sentenced them to a rigorous imprisonment for life and a fine of Rs.10,000/- each under section 302/34 of the I.P.C.
  2. The Ghaziabad Trial Court also held them in conviction under section 201/34 of I.P.C and sentenced them to five years rigorous imprisonment and a fine of Rs. 5000/-. Additionally, Dr. Rajesh Talwar was convicted under section 203 of I.P.C. and sentenced to a simple imprisonment of one year with a fine of Rs.2000/- and all the sentences were to run concurrently.
  3. The accused were the residents of L-32, Jalvayu Vihar-Noida and were residing there with their beloved daughter Aarushi and a servant named Hemraj, who was employed for daily domestic drudgeries and household chores in the apartment. Hemraj also occupied the room in the same flat.
  4. On 15.05.2008, the appellants presented their daughter Aarushi, a Sony Digital Camera as an advanced birthday gift and she had a very exciting and a happy state of moments with her family. Post this, Aarushi went to sleep and Dr. Rajesh Talwar had to send an e-mail to the American Dentistry Association; so he asked Dr. Nupur Talwar to switch on the internet router in Aarushi’s bedroom. Dr. Nupur Talwar complied, leaving the key of Aarushi’s bedroom into the lock. The air conditions were switched on which were very noisy.
  5. On 16.05.2008, the temporary maid Bharti Mandal rang the doorbell of the flat two times but there was no response. She put her hand on the outer grill door but it did not open. She pressed the bell again and Dr. Nupur Talwar opened the door and stated that the key of the door might be with Hemraj, who must have gone to fetch milk and told Bharti Mandal to go to the ground floor so that she could throw the spare key.
  6. Meanwhile, Dr. Nupur called Hemraj on his mobile. The call was connected and then got disconnected. Bharti Mandal stated that Dr. Nupur Talwar told her that the door was not locked but latched from outside; and this was denied by Dr. Nupur Talwar. Bharti Mandal climbed up the stairs, put her hand on the iron grill door again and it opened.
  7. She suddenly heard the couple weeping and inquired about the same. Dr. Nupur Talwar embraced her and escorted her to Aarushi’s room; she pulled the bed sheet in which her daughter was covered and found Aarushi’s dead body with her throat jugulated and slit. Within hours of discovery, the flat was crowded with people, police and strangers.
  8. On the arrival of police, Dr. Rajesh Talwar scribed the report of occurrence with his probable degree of possibility and stated that the servant, Hemraj murdered his daughter Aarushi with sharp weapons and went missing from the previous night and he might have absconded. The investigation was done by S.I. Data Ram Nauneria who recorded the statements and collected the additional evidence.
  9.  On 17.05.2008, the lock put on the terrace of the Talwars was broken and Hemraj’s dead body lying in pool of blood was found covered with the panel of cooler and dragging marks were visible on the terrace. Meanwhile, Talwars were on their way to Haridwar and a call was received by Dr. Rajesh Talwar regarding the discovery of dead body. Further statements were recorded and evidence was collected & the investigation was transferred to Mr. Anil Samania. After few days, Dr, Rajesh Talwar was arrested as the prime suspect in the double murder case.
  10. The case was then transferred to the C.B.I which recovered 14 articles from the place of occurrence and took possession of bloodstained palm print on the terrace wall. Krishna Thadaria, the clinic employee of Dr. Rajesh Talwar was arrested and three articles including khukri,(a sharp edged knife)having specks of blood and a purple color pillow cover were recovered from his residence.
  11. Krishna underwent the lie-detector test, polygraph test, narco-analysis and brain-mapping test. The results indicated the presence of Rajkumar and Vijay Mandal in the house of Talwars at that night. A report was filed by C.B.I under Section 169 of C.R.P.C and Dr. Rajesh Talwar was released on custody.
  12. The investigation was then transferred to Richh Pal Singh and then to AGL Kaul. The closure report submitted by AGL Kaul was rejected by the Special Judicial Magistrate and he himself took cognizance of offence under Section 190(1)(b) of the Criminal Procedure Code and a trail was ordered against Dr. Rajesh and Dr. Nupur Talwar.
  13. The order of trial was challenged in Allahabad High Court as well as in the Hon’ble Supreme Court of India but was dismissed and the case was finally tried in the Sessions Court, Ghaziabad.
  14. The Ghaziabad Sessions court held the appellants convicted and awarded sentences accordingly.
  15. Finally, after an appeal to the Allahabad High Court,  the Talwars were acquitted by the Court on the basis of benefit of doubt. The conviction by the Sessions Court was set aside and it was held that the sentence awarded to the accused cannot be sustained.

PROCEDURAL LITANY OF CIRCUMSTANTIAL EVIDENCE

Circumstantial evidence is the direct evidence which relates to a series of other facts than facts in issue: but by experience have been found so associated with the fact in issue in relation of cause and effect that it leads to satisfactory conclusion.[1] It is always primary and the facts from which the existence of the fact in issue to be inferred must be proved by direct evidence. In Sarad Birdichand Sarda v. State of Maharashtra[2], the Supreme Court laid down five golden principles of circumstantial evidence. The Allahabad High Court applied the test to the judicial scrutiny in Aarushi’s murder case and made out the following extrapolations and inferences:

  1. Principle I- The circumstances from which the conclusion of the guilt is to be drawn must be fully established.  
  2. It is based on the grammatical and legal distinction between “must” and “may”. It means that the circumstances should be such which directly point towards the guilt of the accused and all the vague conjectures must be eliminated. The High Court rejected the proposed proposition of the prosecution as to motive which stated the grave and sudden provocation of Dr. Rajesh Talwar on seeing Aarushi and Hemraj in a compromising position.
  3. In support of this, the Court stated that the report prepared by Dr. M.S. Dahiya was based on the information supplied to him by the C.B.I. officer which stated that Hemraj’s blood was found on Aarushi’s pillow cover was invalid as the prior report prepared by Central Forensic Science Laboratory (CFSL) indicated the sole presence of Aarushi’s blood on pillow cover.
  4. The Court rejected Dr. Sunil Kumar Dohra’s report regarding whitish discharge in the private parts of Aarushi with vaginal cavity wide open as the same was not provided in the first three statements of the doctor & later he termed them as “subjective” findings. The Court stated that the report had no credible basis as to the fact that Aarushi was sexually assaulted as the column in the report “any other additional information” was left blank in the initial report.
  5. In case of vagina of a 13-14 years old deceased girl, neither orifice would by found open nor vaginal canal will be visible as orifice is found to be open in only those women who have given birth to several children; this is called “Prolapse”.[3]                                                     

The Allahabad High Court took all the above mentioned circumstances under the vicinity of this principle and found that the chain of events forming the circumstances was not fully established and there were loopholes in the same; which implicated that the chain of circumstances put forth by the prosecution was broken and embryonic.

  • Principle II- The facts so established should be consistent only with the hypothesis of the guilt of the accused.
  • This principle lays down that once the facts are established; they must be consistent with the hypothesis of the guilt of the accused.  The facts so established should not be explainable on any other hypothesis except the accused is guilty.[4]
  • In Aji Kumar v. State of Kerala[5], the Hon’ble Supreme Court observed that “Suspicion, however grave, cannot take the place of proof of conviction.” This fact can be placed in Aarushi’s case to the point of double edged suspicion both on the accused as well as of botched up method of investigative agencies.
  • The two key witnesses of the prosecution were the driver and maid of the accused i.e. Umesh Sharma and Bharti Mandal. Umesh Sharma stated that no other person was present in the house, besides the accused couple and both the victims. Here last seen theory firmly comes into the picture.
  • In Ashok v. State of Maharshtra[6], it was held that last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between accused and deceased, enmity between them, previous history of hostility, recovery of weapon from the accused may lead to presumption of guilt.
  • However, no such evidence or chains of circumstances were there on record which stated that the accused was having an aversion to their victim daughter. However, there was one factor which could have been in the favor of prosecution i.e.  Non-explanation of death of the deceased.
  • The question arises is that if the hypothesis is pointing towards the guilt of the accused; but the explanation appended to that the hypothesis keeps on changing then whether the verisimilitude of the truth can be affected or not. A cursory glance at the judgment states that the prosecution was not able to prove that which the apt murder weapon was ranging from khukri, medical dentistry instrument or the golf stick.
  • Hence, the explanation appended to the hypothesis actually went in the favor of the accused as the prosecution was not able to establish the apt murder weapon as this raised serious concerns on the credibility of the argument of the prosecution regarding murder weapon.
  • Additionally, the reports of Dr. Sunil Kumar Dohre had falsely deposed that vaginal cavity was open and vaginal canal was visible and that opening of cavity was prominent in as much as neither this fact was mentioned neither in the post-mortem examination report nor in his first four statements given to the investigating officer.

Hence, all these circumstances proposed by the prosecution were not able to establish the credibility of hypothesis as the explanation appending to those hypothesis kept on changing. Hence, it could not establish the presumption of guilt against the accused.

  •  Principle III -The circumstances must be of conclusive nature and tendency.
  • The Ghaziabad Trial Court placed its reliance on the fact that since no other person was present in the house; as per the testimony of Umesh Sharma, the driver, and there was no proof of any outsider entry into the flat, the accused couple was convicted of an offence; as the Trial Court found it a conclusive circumstance leading to a reasonable inference.
  • But, the Allahabad High Court, took into account the additional evidence. In paragraph 196 of the judgment, the Court stated that the call records of Hemraj depicted the location of Hemraj’s phone in Punjab. This was a very strong piece of evidence that on the intervening night of 15/5/2008 and 16/5/2008; some outsider was present in the apartment who took the possession of Hemraj’s phone. This incident turned out to be an obstruction in establishing the conclusiveness of the circumstances.
  • Principle IV- Circumstances should exclude every possible hypothesis except the one to be proved.
  • As far as Aarushi Talwar Murder Case is concerned, there were overlapping arguments made by the prosecution as there was one hypothesis but multiple sub-hypothesis. The explanations appended to the arguments by the prosecution were too ambiguous.
  • Firstly, no inference could be drawn as to the apt murder weapon used. Secondly, the medical reports completely eradicated the possibility of sexual intercourse or assault on the deceased victim by Hemraj.
  • The Allahabad High Court took into consideration the Sound Simulation test and Crime Scene Reconstruction Report and stated that both the reports were in alignment with the defence of the accused as the C.B.I failed to present the report in the trial court. These report clearly established that even if the accused were sleep with their air conditioners on, during the night; the entry of the outsiders could not have been heard by the accused couple because of the rough and loud noise being emanated by the air conditioners.
  • Following this, the chain of circumstances establishing the guilt of the accused was broken to a massive extent and a violent blow was given to the prosecution’s version of the story.
  • Principle V- There must be a chain of events so complete as not to have any reasonable ground for the conclusion consistent with the innocence of accused .
  • As far as this principle is concerned, it implicates the fact that the chain of circumstances must be in alignment with the chain of evidence and inferences must point towards the guilt of the accused.
  • In Aarushi’s murder case, an initial report (labeled as “Ext. Ka 51), was made which successfully established the presence of Hemraj’s DNA on a purple color pillow cover recovered from Krishna’s residence. But a further forwarding letter suggested that there was a typographical error and the pillow recovered from Hemraj’s room was labeled as one which was recovered from Krishna’s room.[7] The High Court stated it was a “clinching piece of evidence” that indicated that Krishna was present in the flat when Hemraj was murdered.

Hence, it can be firmly extrapolated by that if the chain of circumstances proposed by both the prosecution and the defence was compared with the chain of evidences, there are multiple lacunas in regard to inconsistencies between the two. If the evidence is weighed on an abstract calculus, it implicates the situation where some outsider was present in the flat on the intervening night. Hence, the view adopted by Allahabad High Court appears to be as per the objective assessment of the situation in consideration of consistent chain of evidence. Hence, the Panchsheel rule favored the accused couple firmly.

JUDGMENT OF THE COURT- WHETHER QUESTIONABLE OR CONCLUSIVE?

Dr. Rajesh Talwar and Dr. Nupur Talwar were acquitted by the Allahabad High Court on the basis of “benefit of doubt” and the Court additionally stated that neither the circumstances nor the evidence was enough to hold the dentist couple guilty. The circumstances were inadequate and their life sentence was quashed and C.B.I had failed miserably to supplement the lacunas in the evidence.[8]

The High Court of Allahabad took recourse to Section 106 of the Indian Evidence Act and observed that it lays down only this much that if a fact is in the “special knowledge of person” and the other side could not have due knowledge of it despite exercising due diligence, then the burden of proving the fact lies on such person who possess such special knowledge. In the instant case, the prosecution was unable to prove the testimony of its key witness, Bharti Mandal, as her statements kept on changing timely. The Court stated that the prosecution failed to prove the compliances of Section 106 for proving that both the deceased victims were seen in a compromising position with each other.

The Court also criticized the “botched-up” investigation of the agencies and sporadic time lapses. The conclusive remarks of the Allahabad High Court were that the chain of circumstances stood snapped the moment and prosecution failed to prove by cogent and reliable evidence that appellant’s flat was locked from inside.”

CONCLUSIVE PRECEDENTS CITED (IN DICTA)

Apart from Sarad Birdichand Sarda v. State of Maharshtra[9], the Allahabad High Court cited two more precedents in support of their view which are as follows:

In Kali Ram v. State of Himachal Pradesh[10], the Apex Court put forth the view that another golden thread which runs through the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and another to his innocence, “the view which is favourable to the accused should be adopted”.

In M.G. Agarwal v. State of Maharashtra[11], the Apex Court held that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt.

In view of Article 141 o the Constitution of India and as per the circumstances objectively proposed in this case, the two precedents cited by the bench stood in favor of the accused couple and lead to the inference of their innocence and their entitlement to the benefit of doubt.

CONCLUSION

All in all, it can be firmly extrapolated that Aarushi Talwar Murder Case went on being an epitome expression of what we today call as “The Perfect Murder Mystery.” Notwithstanding the fact of presence of voluminous evidences and exhibits, the abstract calculus of evidence was very intricate to be drawn since the chain of circumstances must be in alignment with the chain of evidences. However, while reading the both Ghaziabad Trial Court judgment and the Allahabad High Court Judgment, the reader feels that the latter judgment is more precise and accurate as precedents cited by the bench were very much in consonance with the circumstances proposed in the present case.

Recollecting the abstract at the beginning of this paper, it is mentioned that every human reacts differently to different situations. In this case, the reasoning which was given in the Ghaziabad Trial Court was that the conduct of the accused couple was not palatable as it is a natural act that if parents see the dead body of their daughter, they will not hug her”. This reasoning appears absurd and out of line.

Since reactions of humans are different, they conduct themselves differently. This could also be questioned regarding the conduct of investigative agencies as many Investigating Officers were changed and each officer conducted the investigation in his own manner; which lead to “botched-up” circumstances. The circumstances were so botched up that even today the veracity of murder weapon is not corroborated and the murderer remains absconding and Aarushi’s soul still thrives for justice.


[1] Batuk Lal, The Law of Evidence, Central Law Agency, (22nd Edition), Page 64.

[2] AIR 1973 SC 2622.

[3]  V.G. Padubidri, Shaw’s Textbook of Gynaecology, (16th Edition), Page 9.

[4] Batuk Lal, The Law Of Evidence, Central Law Agency, (22nd Edition), Page 70

[5] AIR 2017 SC 695

[6] 2015 Cri LJ 2036, Page 2039.

[7] Aniruddha Ghoshal, Aarushi Talwar Murder Case: Key Evidences That Caught Attention, available at: https://indianexpress.com/article/india/aarushi-talwar-murder-case-rajesh-nupur-talwar-hemraj-noida-cbi-key-evidences-that-night-at-flat-l-32-4900539/ , last seen on 03/09/2020.

[8] Amita Verma, Aarushi Murder Case: Benefit of Doubt to Talwars Help,available at: https://www.deccanchronicle.com/nation/current-affairs/131017/aarushi-murder-case-benefit-of-doubt-to-talwars-help.html , last seen on 03/09/2020.

[9] AIR 1973 SC 2622.

[10] AIR 1973 SC 2773.

[11] AIR 1963 SC 200.


LEGAL IMPLICATIONS OF E-BANKING IN INDIA

BY: Uddeshya Yadav

INTRODUCTION

In the world right now there are so many smartphones user and they are rapidly increasing day by day and almost all smart phone users are using E-banking facility provided by the banks and in this pandemic time when we were in the home in the lockdown period if we have to do any transaction we have taken the help of E-banking. E-Banking is also called from different names such as Internet banking and online banking.

Daniel has defined “E-banking as the delivery of Banks information and services by Banks to customers via different delivery platforms that can be used with different terminal devices such as a personal computer and a mobile phone with browser or desktop software, telephone or digital television”.

E-banking has also been defined “as the delivery of banking services through the open-access computer network the internet directly to the customer’s home or private address and services. It entails the availability of resources such as online account control, fund transfers, and the purchase of financial goods or services”.

ADVANTAGES AND DISADVANTAGES OF E-BANKING

We all are using E-Banking facility nowadays and most of them have experienced some good things and bad things about E-banking. The advantages and disadvantages of E-banking are-

Advantages of E-Banking  

1. Convenience: It is difficult for a person to find time to go to the bank to check their account balance, interest rates, good money transfers, and other updates in this busy and hectic world. For consumer convenience, the banking sector has created a virtual banking system in which a person can access their banking system at any time and from any place. When there is a banking holiday, the money cannot be exchanged in a variety of ways. The online banking system has provides ease by providing 24 hours and 365 days services. It resolves issues faced by the customers during the traditional banking system. An individual doesn’t need to stand in queue for any money deportation and transfer.[1]

2. Transfer service: The virtual banking system offers the ease of 24-hour money transfer in 365 days. You don’t have to stick to any exchange within operating hours, as you can do in 24 hours according to your preference.

3. Monitoring service: The customers can access their updated passbook anytime for monitor their transactions to manage their financial plans.

4. Online bill payment: For paying bills, you don’t have to wait in line as it has the functionality to pay any kind of bills like power, water supply, telecommunications, and other bills.

5. Quality service: By supplying them with the ease to execute their transactions at any point of the day, Internet banking has increased the efficiency of services. Without physically visiting the banks, customers may apply for loans, insurance, and all other services, which demonstrates that the standard of e-banking is fast and productive.

6. High liquidity: Basically the biggest advantage lies in this thing that you can transfer money from any place of the world you need not go to the bank personally.

7. Low-cost banking service: Reduced Internet banking makes for a higher standard of services to lower running costs. This delivers luxury at a cheaper cost of elevated customer service. The bank charges the minimum sum for operations that represent the reasonableness and quality of e-banking services.

8. High-interest rates: In comparison to banks, internet banking offers lower interest rates on home loans. The operational costs are also modest, allowing the company to save money for its clients. Other features include a no-minimum-balance account, which makes it easier to keep a zero-balance account. It increases the total disposable income of the consumers without even worry about maintaining a minimum balance.[2]

Disadvantages of E-Banking

1. Security issues: Internet banking is fully vulnerable as there are several website-related issues and hackers will hack info. It will add to financial losses for consumers. Financial information that can also cause financial losses can also be stolen.

2. Lack of direct contact between customer and banking officer: For handling user issues, online banking necessitates effective customer service. Customers, on the other hand, are disappointed by a lack of customer service. Due to technical issues, some online payments may not be reflected in the system. It also gives customers a sense of insecurity. Thus the lack of support from customer service executives is a barrier in online banking.[3]

3. Transaction problem: Customer face many problems in regards to the transaction sometimes it happens that the money has gone and it is showing transaction failed and sometimes the money actually does not transfer.

4. Long procedure to access e-banking: Government banks in some countries provide internet banking by filling out an internet banking form, which is then approved, after which you can access a security password to log in. A person must first download the software for the particular banking service, after which all passwords must be entered in order to successfully log in.

5. Training and development: Banks must conduct employee training and development programs in order to provide high-quality online resources that improve the customer experience. Training them to provide reliable care necessitates a significant financial commitment.[4]

LEGAL PROVISION RELATED TO E-BANKING

There are several provisions in relation to E-banking and it has been mentioned in different acts such as: Information Technology Act, 2000, Negotiable Instrument Act, 1881, Income Tax Act, 1961, Indian Penal Code, 1860 to secure security.

Information Technology Act, 2000:  In the Information Technology Act, 2000 has several provision related to E-Banking and the section 3(2) of the IT Act[5] talks about that they allow the use of asymmetric cryptosystems and rough electronic document authentication functions.

Section 4 of the Information Technology Act states about the Legal recognition of electronic records — Where a statute requires that information or other matter be in writing, typewritten, or printed form, such provision shall be considered fulfilled whether such information or matter is– (a) rendered or made available in an electronic form; and (b) open so that it may be used for future reference.[6]

Section 72 of the Act [7]has stated about the punishment and penalty given to the person that has received the information without the consent of the person whose information it was actually and the person has disclosed the information and he has breached the privacy of another person and he will be given the punishment of imprisonment of two years or he has to pay fine of rupees which can be extended to one lakh or he will be liable for both.

Section 79 states about the immunity of a network service provider from responsibility under different circumstances as data pass across their network.

Negotiable Instrument Act, 1881: In Negotiable Instrument Act, 1881 there is only one provision related to E-Banking which is section 6. This particular section states about cheque. The Cheque is a paper that orders a bank to transfer a certain sum of money from the account of an individual to the account of another person or business on behalf of whom the cheque has been made or given. Section 6 of the Negotiable Instrument Act is having expressions which is stating about a cheque in the electronic form and truncated cheque. The expression has been explained as-

“A cheque within the electronic kind suggests that a cheque drawn in electronic kind by mistreatment any computer resource and signed during a secure system with digital signature”.

 A truncated cheque is one that is truncated over the process of a clearing period, either by the clearing house or by the bank, whether paying or accepting payment, as soon as an electronic image for delivery is produced, obviating the need for the cheque to be physically moved.[8]

Income Tax Act, 1961: Basically in Income Tax Act there is also provision which is related to the E-banking is section 40 A. The main aim behind the introduction of Section 40 A of the Income Tax Act, 1961, includes the payment to designated accounts to verify tax avoidance. In the case of a transfer of funds, the transfer of funds only takes place between the accounts listed and serves the same function as a crossed cheque or crossed bank draught.

Indian Penal Code, 1860: Under Indian Penal Code 1860 there are several provisions as there is section 383,379,406,417,471,500 which is related to E-banking.

Section 383 states about Punishment of Extortion [9]in this section it simply says that if any person who is inducing someone to put any property or he will publish some defamatory statement he will be liable to fine or he will be liable to imprisonment or he will be liable for both the punishment.

Section 379 of the Indian Penal Code, 1860 states that if any person who has taken the electronic records or any goods out of the possession of the owner then the person will be liable for the punishment which can be  three years punishment and it can also be fine in these type of cases or both can be given.

Section 417 has told about the punishment for cheating the punishment for cheating is imprisonment which can also extend to one year or fine or both.[10]

The Indian Penal Code, Section 471, Using a counterfeit document or electronic record as legitimate- Anyone fraudulently or dishonestly uses as genuine any document or electronic record that he believes to be forged is subject to a two-year jail sentence, a fine, or both.[11]

Section 500 of the Indian Penal Code describes punishment for Defamation. Defamation simply means to injure the reputation of someone either through written format or through oral statement. The punishment for the defamation is imprisonment and which can extend to up to two years and the fine can also be imposed and both can also be applied.

The punishment is given because the image of the person or you can say the reputation has been damaged the person or the company. The person who is publishing or he knows that the statement said by him is fraudulent.

Section 506 of the Indian Penal Code states about the punishment of Criminal Intimidation and it has been stated in the act as: A individual that uses electronic means to endanger another person’s identity, health, or property in order to force that person to do an unlawful act or prohibit him from doing anything that is lawfully required of him is punishable by up to two years in jail, a fine, or both.[12]

Section 406 of the Indian Penal Code simply states that just one thing should be considered, and that is that someone who violates another person’s identity, health, or property by electronic means should be punished by detention, which can be increased to two years, or a fine, or both, whether that person is induced to perform an unethical act or prevented from performing an act that is constitutionally binding on him.

CONCLUSION

There is no doubt that every bank is providing E-banking facility and it is widely used as it is provided and it is convenient for all of them but there are some facing privacy concern and securities issues and there is a threat also. If talking about E-banking there are now many heavy securities such as firewall etc. which keep protected our information and no one is allowed to access and if somehow they have broken the law then we have several acts in which several provision are related to punishment if any one of them does anything wrong.


[1] Advantages and Disadvantages of e-banking,available at: https://sourceessay.com/advantages-and-disadvantages-of-e-banking/  (Visited on January 24, 2021).

[2] Advantages and Disadvantages of e-banking,available at: https://sourceessay.com/advantages-and-disadvantages-of-e-banking/ (Visited on January 24, 2021).

[3] Advantages and Disadvantages of e-banking,available at: https://sourceessay.com/advantages-and-disadvantages-of-e-banking/  (Visited on January 24, 2021).

[4] Advantages and Disadvantages of e-banking,available at: https://sourceessay.com/advantages-and-disadvantages-of-e-banking/  (Visited on January 24, 2021).

[5] The Information Technology Act, 2000 ( Act 21 of 2000)

[6] The Information Technology Act, 2000 (Act 21 of 2000)

[7] The Information Technology Act, 2000 (Act 21 of 2000)

[8] Negotiable Instrument Act, 1881 ( Act 26 of 1881)

[9] Indian Penal Code, 1860 (Act  45 of 1860)

[10] Indian Penal Code, 1860 (Act 45 of 1860)

[11] Indian Penal Code, 1860 (Act 45 of 1860)

[12] Indian Penal Code, 1860 (Act 45 of 1860)


“NEW LABOUR CODES, 2020 – WHAT CHANGES FOR WORKERS AND EMPLOYERS?”

By- Priyam Agarwal

India is a country with a labour force of around 500 million[1]. The term ‘labour’ means the amount of physical and mental work done for wages. The significance of the regality of labour and the need for ensuring the interest of human labour has been cherished in Chapter- III of the Indian Constitution (Articles 16, 19, 23 & 24) and also Chapter IV (Articles 39, 41, 42, 43, 43A & 54) keeping in line with Directive Principles of State Policy (DPSP) and Fundamental Rights.

Labour is a subject in the concurrent list under the Constitution of India and thus both the Central and State Governments have competence to enact legislations regarding labour. Due to this, a large number of labour laws have been ratified till date related to different facets of labour namely, occupational health, fixation of minimum wages, safety, resolution and adjudication of industrial disputes, employment, mode of payment of wage, gratuity, provision for payment of bonus, etc. 

The central government has stated that there are over 100 state and 40 central laws regulating various aspects of labour such as the resolution of industrial disputes, working conditions, social security and wages[2].

The Indian labour laws were too many which have led to confusion and overlapping. The labour laws existing in India were archaic, too many, often contradictory and badly administered. The existing labour laws were very old and thus they need a reconsideration. The labour laws enacted in India have been added in a piecemeal manner, this has in-turn resulted in these laws being extemporaneous, mutually at odds with assorted definitions, complicated and containing outdated clauses.

Justice N Anand Venkatesh had observed in 2019 in the case of The Management Of Sny Autotech Pvt. Ltd. vs The Inspector of Police” while hearing a case at the Madras high court: “Industrial laws available in this country have become archaic and unfortunately have not changed with the fast changing environment in the industry” [3] .

Various studies have discerned that labour enforcement in India has been feeble and has not been able to protect workers sufficiently, the success of collective bargaining has been low due to lack of recognition to bargaining agents, and also the coverage of labour laws has been sparse[4]. The Periodic Labour Force Survey Report (2018-19) stipulates that 70% of regular wage/salaried employees in the non-agricultural sector didn’t have a written contract, 52% did not have any social security benefit and 54% were not eligible for paid leave[5].

The major challenge in labour reforms was to facilitate employment growth while protecting worker’s rights. The government have to harmonise between the rights of workers and economic recovery. Favouring one over the other will influence the Country’s prospects in the distant future. In 2019, the Ministry of Labor and Employment introduced four bills with an aim to consolidate 29 central laws and thus replace the 29 existing labour laws. 

Out of these four bills, one was passed in 2019 (“The Code on Wages”) and the other three were referred to the Standing Committee on Labour. The three bills were reinstituted after incorporating 174 out of 233 recommendations given by Standing Committees[6] in 2020. The Union government has recently codified 29 central enactments into four labour codes namely the:

  1. The Code on Wages, 2019
  2. The Industrial Relations Code, 2020
  3. The Code on Social Security, 2020
  4. The Occupational Safety, Health and Working Conditions Code, 2020

These labour codes have been proposed on the recommendation of the Second National Commission on Labour (NCL). This commission found existing legislations to be complicated, with obsolete provisions and incoherent definitions [7].

Objective for New Labour Codes: 

  1. To simplify and modernize labour regulation as labour laws in India remain extremely complicated.
  2. Less complexity, simplifies access to numerous provisions of the law by the employees and employers.
  3. Ease of compliance by removing multiplicity of definitions and authorities without compromising wage security and social security of workers.
  4. Accountability and transparency, and uniformity in definitions and approach. 

The Code on Wages was passed by the Parliament and this code received the President’s assent on 8th August 2019. The implementation of this code was the first milestone in labour market reforms and it subsumed 4 existing central labour laws, namely the Payment of Wages Act, 1936, Minimum Wages Act, 1948, Payment of Bonus Act, 1965 and the Equal Remuneration Act, 1976. The Code on Wages legislates on wages and bonus and aspects relating thereto. The fixation of minimum wages has received a long overdue review under the Code on Wages, 2019. 

The three (3) remaining labour codes were passed by the Parliament on September 23, 2020 and thereafter received the President’s assent on September 28, 2020. 

An overview of the three (3) new labour codes passed in 2020 is provided below:

[A]. The Industrial Relations Code, 2020 (“IR Code”)

The IR Code subsumed and combined the features of three (3) erstwhile laws, namely – The Trade Unions Act, 1926, Industrial Employment (Standing Orders) Act, 1946 and Industrial Dispute Act, 1947.This code will energize the industry and would spur economic activity. It aims to free employees from the constraints of earlier labour laws.

The Industrial Relations Code has rightly embraced the definition of industry propounded by the Supreme Court in 1978 in the case of “Bangalore Water Supply and Sewerage Board v. A. Rajappa” [8]. This Code has made the formation of unions difficult and also placed restrictions on the right of workers to go on strike. This code seeks to consolidate and amend laws relating to: Trade Unions, conditions of Employment (Hire and Fire Policy) on industrial establishments, settlement and investigation of industrial disputes:

  1. Increased the threshold for retrenchment: The government has hoisted the threshold on the number of employees needed in an organization for the layoff, retrenchment and closure of establishments without the approval of government to 300 from 100 employees, and allows the government to increase this limit further by notification.

The Standing Committee on Labour, in its report submitted in April, had also proposed hiking the threshold for lay off, retrenchment and closure to 300 workers, noting that some state governments like Rajasthan had already increased the threshold and which, according to the Labour Ministry, has resulted in “an increase in employment and decrease in retrenchment”[9].

The Labour Minister, Mr. Santosh Gangwar informed the house that: As many as 16 states of India had already increased the threshold for closure, lay off and retrenchment in forms with upto 300 workers without government permission.

According to the Central Government, this step would encourage the investors to set up big factories and employ more and more workers and the limit of 100 was not good for employment generation as it discourages the employers to recruit more workers. 

But this step will significantly improve the ease of firing of employees by the employer. It will attenuate the rights for workers in small establishments which have less than 300 workers as they would not get the protection of labour laws and trade unions.

  • Conditions for carrying out a legal strike: Now to conduct any strike, prior notice (60 days prior to strike) to the employer is mandatory if proceedings are going on in any tribunal and also to give 60 days’ notice if the proceedings are concluded. 

This step of broadening the permitted time frame before the workers can go on a legal strike will make a legal strike almost impossible. This would make workers vulnerable to exploitation and their freedom of speech might be restricted.

Till now, a worker employed in a public utility service cannot go on strike unless he gives notice for a strike within 6 weeks before going on strike or within 14 days of giving notice, but this new IR code makes this rule applicable for all the industrial establishments. This notice would be valid for a maximum 60 days.

3. Standing Orders: Previously, standing orders i.e., forming service rules for workmen was compulsory for employers if he hires equal to or more than 100 employees. This limit has now been increased to 300 workmen.

Standing order pertains to the classification of workers, manner of intimating to them period and hours of work, holidays, paydays, shifts, conditions for leave, termination of employment, rules of conduct for workmen, and the means available for redressal of grievances.

According to the Central Government, without the need of a standing order in industrial establishments due to the raised threshold, the process of hiring and firing workers will be more flexible and faster for employers which would result in increased employment. 

But, it will water down the labour rights for workers in small establishments having less than 300 workers and would enable companies to introduce arbitrary service conditions for workers, dismissal and alleged misconduct and retrenchment for economic reasons will be easily possible which will lead to complete demolition of employment security.

4. Recognition of trade unions: If there is one trade union in an establishment then it would be the sole negotiation union. But, if there are more than trade unions in any establishment, the union which has the support of the majority with 51 % employees will be the negotiating union. If the unions do not qualify this criterion, the employer must establish a negotiation council.

5. Fixed term employment: This gives employers the flexibility to hire workers based on requirement to a written contract. Fixed term employees should be treated on par with permanent workers. It includes matters related to hours of work, wages, allowances and other benefits such as gratuity.

6. Grievance Redressal Committee: In any establishment employing 20 or more than 20 workers, there should compulsorily be a Grievance Redressal Committee for quick redressal of the disputes arising in the establishment.

To reskill retrenched workers, employers will contribute worker’s last drawn 15 days’ pay. This step might help workers and the workers could work with good efficiency without any pressure. 

[B]. The Code on Social Security, 2020 (“SS Code”) 

This code replaced 9 labor laws relating to social security, retirement and employee benefits. This code expanded the definition of employees and it now includes inter-state migrant workers, gig workers, platform workers, film industry workers, etc. This code also increased the scope of ESIC (Employees State Insurance Corporation) and EPFO (Employees Provident Fund Organization) schemes. 

Till now, only the workers of the organized sector were given social security but now a significant change is brought by this labour code:

  1. Universal Social Security: This code provides universal social security to all workers for the very first time, including the unorganized and the gig workers (temporary workmen, e.g.: delivery boys) and platform workers. Due to this code, social security is provided to over 90% of India’s total workforce.

Gig workers are basically workers working in a job related to online platforms, independent contractors, on call workers, etc.

2. National Social Security Board: A National Social Security Board will be formed which shall recommend to the Central Government for formulating suitable welfare schemes for different sections of workers which can benefit them by providing comprehensive social security relating to Provident fund, employment injury benefit, housing, educational schemes for children, etc.

3. Contribution of annual turnover: The employers employing gig workers would have to necessarily put up 1-2 % of their annual turnover for social security of workers. This will also lead to upliftment of social security of gig workers.

4. National Database: Under the “SS Code”, there is an aim to make a national database for unorganized sector workers and the registration of all the workers would be done on an online portal on the basis of Self Certification through a simple procedure.

5. ESIC and EPFO benefits: The facility of ESIC which is provided in 566 districts hitherto will now be provided in 740 districts. Till now, EPFO’s coverage was applicable only on establishments included in the Schedule, now it would be applicable on all establishments having 20 workers.

6. Gratuity: Provision for Gratuity has been made for Fixed Term Employee and there would not be any condition for minimum service period for this.

[C]. The Occupational Safety, Health and Working Conditions Code, 2020 (“OSH Code”) 

This code consolidates 13 existing acts such as Factories Act, 1948, Dock Workers Act, 1986, Contract Labour Act, 1970, Inter State Migrant Workers Act, 1979, etc. This code aims to consolidate and amend the laws regulating the occupational safety, health and working conditions of persons employed in an establishment and related matters. This code empowers the companies to employ the labour on a contractual basis and also to increase the term of contract for any number of times and for any amount of time required.

  1. Inclusion of interstate migrant workers in the definition of worker: A worker who is earning upto 18000/- per month and has come on his own from one state and obtained employment in another state will be treated as an interstate migrant worker and would be provided the benefits of a migrant worker i.e., PDS, building cess, insurance and provident fund.
  • Promotes formalisation: The mandatory requirement of issuing of appointment letters by the employer of an establishment will promote formalisation in employment. This step of formalising employment will provide appointment letters which can be used as a proof of experience in other employments.
  • Journey allowance: A aggregate amount of fare is to be paid by the employer for to and fro journey to the employee’s native place from the place of employment. It will reduce burden on employees.
  • Single License: This code will allow a single license for staffing forms to hire workers on contract across different locations instead of multiple licensed ones required till now.
  • Expansion of Definition of factory: The Factory Act, 1948 defines any manufacturing unit as a factory if it employs 10 workers and uses electricity or 20 workers without using electricity power. Now the threshold is being raised to 20 and 40 workers respectively.
  • Women employed in all establishments for all types of work: Women can work in any establishment and it’s the employer’s responsibility to provide adequate safeguard and conditions relating to safety, holiday, working hours with their consent. It would help in increasing women participation in the labour force and address gender bias in wages. 

But the Code does not formulate the preventive measures that employers have to bring into being before allowing women to work at all hours. Also there are no harsh penalties for violations laid down in the code.

According to the World Bank, with less restrictive laws, India could approximately add on an annual basis “2.8 million more good quality formal sector jobs” [10]. Economic Survey (2019-2020) points out that: Units in states that have made the transition towards more flexible labour markers were 25.4% more productive than their counterparts[11].

This simplification of numerous labour laws is a great step forward and these new labour codes are a very big and much required reform for India labour laws. These new labour codes will make noteworthy changes to regulation of labour and the relationship between employer and employee. These labour codes are “historic” because they come after nearly a century. These codes would provide basic security to unorganised workers and will also lead to business growth.


[1] https://data.worldbank.org/indicator/SL.TLF.TOTL.IN?locations=IN

[2]  List of Central Labour Laws under The Ministry of Labour and Employment, The Ministry of Labour and Employment.

[3] W.P.No.23427 of 2018 and W.M.P.No.27342 of 2018

[4] “Reorienting policies for MSME growth”, Economic Survey 2018-19

[5] Periodic Labour Force Survey Report (2018-19), The Ministry of Statistics and Programme Implementation, June 2020

[6]  http://www.legalserviceindia.com/legal/article-3932-new-labour-codes-2020.html

[7] Report of the National Commission on Labour, Ministry of Labour and Employment, 2002 (http://www.prsindia.org/uploads/media/1237548159/NLCII-report.pdf)

[8] The 1978 verdict said that any establishment would fall under the definition of an industry if an employer-employee relationship existed and there is systematic and organized activity ([1978] 2 SCC 213)

[9] https://indianexpress.com/article/india/firms-with-up-to-300-workers-can-hire-and-fire-without-govt-nod-bill-in-lok-sabha-6602928/

[10] https://www.hindustantimes.com/india-news/understanding-the-new-labour-codes/story-llI015EZK8EYtDHmP9SXVP.html

[11] https://www.indiabudget.gov.in/economicsurvey/

MERGERS AND ACQUISITIONS IN TECH, MEDIA AND TELECOM

By- Anjanee Goel and Mridul Jhalani

Introduction

As the swiftness of technological rejuvenation quickens, mergers and acquisitions can provide a fast track for accelerating product roadmaps, gaining entrance to new technologies and markets, and fending off competitors from both inside and outside one’s industry. 

This strategy is especially evident in the technology, media, and telecommunications (TMT) sector which in 2017 recorded an all-time high of 3,389 M&A transactions globally, worth a total of $498.2 billion[1].

A considerable majority of U.S. corporate and private-equity executives (68 percent and 76 percent, respectively) look forward to an uptick in the number of transactions across all industries in 2018. Over the past period of two years, 65 percent of corporate respondents said their cash funds have increased, and the primary projected use of that cash is M&A deals[2].

Mergers And Acquisitions In Tech

We live in scenario where everything and anything can be done by machines. As every kind of person has different ideas, we need to combine great ideas to get the best. This is why mergers and acquisition are important aspect for growth and profit. Mergers and Acquisition in global 2019 has increased to 164 billion in 2019 from dollar 88 billion in 2006.

Especially centers around the issue of how little and medium-sized ventures (SMEs) recognize and obtain new innovation from colleges. The exploration involves an investigation of the issue as far as the social relations among colleges and SMEs, and an endeavor to assemble and build up the possibility of an innovation bank internet webpage for use by SMEs.

Utilizing ideas from late work in social investigations of science and innovation, it is contended that a vital component to tending to the issue is to comprehend SMEs as configured clients both of government and approach activities, and of mechanical advancement.[3]

Strategic drivers for M& A in technology sector

In technology sector mergers & Acquisitions have become a strategic tool for companies to acquire new technology in order to survive in this competitive market. In IT sector it is M&A of knowledge than companies or brands, new startups or small companies have great ideas and lack of market demand, so for growth or increase in market share M&A took place as well as in IT sector customer seeks to get everything in one shop, very prominent example to it is acquisition by HP of electronic data systems for $13.9 billion.

Mergers & Acquisition in technology is mostly like horizontal merger. One of the most prominent bidder in technological M&A is oracle corporation which is a software company based in California, United states. Oracle seeks to strengthen its product offering, build good market base, meet customer demand and expand partner opportunities. Today we are able to get food at our home on clicks, we can talk to person on video chats, and this list goes on. This is because of technology and its growth by mergers & Acquisition.

Merger of Flipkart & Walmart

Arrangements including the obtaining of online retailer Flipkart by American shopping mammoth Walmart made this the greatest year for mergers and acquisitions including Indian organizations on record.

The all out estimation of exchanges was $125.2 billion, as indicated by information aggregated by market-tracker Thomson Reuters Deals Intelligence. Information is as of December 14. This is about double the $63.2 billion found in the earlier year. The retail fragment which included Flipkart was third with arrangements worth $18.3 billion.

Acquisition of Motorola mobility by Google

On acquisition of Motorola mobility by Google, acquired more than 20,000 mobile patent. Google acquired it in 2011.

Mergers And Acquisitions In Media

The media segment has witnessed merger influence during the past two decades in reaction to deregulation and technological development. The Entertainment and Media (E&M) industry is witnessing an evolution to mobile access and content contributions in the midst of a digital surroundings.

The altering nature of the industry, with a deliberate shift toward digital media, well-built corporate cash reserves and creation of private equity firms, has acted as the key catalyst for deal activity in the media sector.

The M&A wave in the E&M sector resulted from old media companies seeking to reinvent themselves in order to exploit the growing market for online media. The previous trend had been for diversified media.

Another factor for the increased M&A activity in the sector was the keen interest of cash-rich private equity firms in the steady cash flow generated by media companies. A major change for the E&M sector is that on account of M&A activity, the lines separating marketing service providers, content providers, technology companies and media companies are becoming increasingly blurred.

The biggest deals in the media sector during the past two decades include Time merging with Warner, buying Turner Broadcasting, and then selling itself to America Online; Disney buying ABC; Viacom buying CBS; and Vivendi buying Universal. Other major deals were the union of Comcast and AT&T Broadband, EchoStar and DirecTV, Vivendi Universal and USA Networks[4].

One of the catalysts has been speedy technological developments. The propagation of high velocity broadband and smart devices as well as the coming out of dual screen media utilization and ‘cord-cutting’ have all helped to make deal making as companies try to get to grips with a new industry model. The way community consumes media has evolved extraordinarily, and the challenge for traditional media companies is to discover ways to compete[5].

The Time/ Warner merger[6]

Time Warner, Inc. is a global leader in media and entertainment, with business in television networks, filmed entertainment and publishing. The main divisions of Time Warner are Turner Broadcasting System, Warner Bros., Home Box Office and Time, Inc.

Warner Bros. Entertainment is a fully integrated; broad- based Entertainment Company with businesses ranging from feature film, TV and home entertainment production and worldwide distribution to home video, digital distribution, animation, comic books, licensing and international cinemas and broadcasting.

In 1989, Time, Inc. and Warner Communication merged to create a world power in the field of media and entertainment. The merger created the largest media and entertainment conglomerate in the World. Time is a most important and leading book and magazine publisher with widespread cable television holdings.

The merger made Time Warner one of the few global media giants that were able to create and distribute information in virtually any medium. The merger positioned Time Warner to compete against major European and Asian companies. The merger entity had a stock market value of $15.2 billion and revenue of $10 billion.

The latest unit possessed the majority productive recorded music and magazine publishing business in the US and the prevalent television programming operation mutually for pay cable and prime-time network television.

The merger was also significant as it underscored the network companies’ vulnerability to competition. The merger facilitated Time Warner’s ability to create television programming, distribute it over its own cable system and syndicate it around the world.

Analysts believed that the size of the new entity would enable it to fend off unwelcome takeover bids.

AT&T and Time Warner merger case[7]

AT&T originally announced strategy to merge with entertainment company Time Warner back in 2016. The $85 billion deal solicited strong words from then-presidential candidate Donald Trump, who claimed the merger would put “too much concentration of power in the hands of too few.”

After Donald Trump was elected U.S. President, his Justice Department filed a lawsuit in opposition to AT&T and Time Warner to obstruct the proposed merger.

The lawsuit in March & appeal in December brought further by the DOJ mark the first time in numerous decades that the U.S. government has intervened in a merger. But a flourishing merger would indicate that one of the world’s leading wireless and telecommunications companies would merge with one of the world’s largest media and entertainment companies.

If AT&T’s attainment of Time Warner was to go through, the telecommunications would be able to market Time Warner’s massive pool of content to other cable companies and consumers. It would also aspire to collect usage data concerning viewership of the content, with the definitive goal being able to construct a digital advertising arm to compete with major competitors like Facebook and Google.

In addition to the major business implications of the AT&T-Time Warner merger, the antitrust lawsuit will have much broader inference for the world of mergers and acquisitions (M&As) in general. Undeniably, the case would be a trend for future mergers and acquisition deals.

Merger And Acquisition In Telecom

Telecom Sector is one of the most profitable and rapidly developing industries in the world. After China the Indian telecom sector has become second largest telephone network in the world and had seen phenomenal growth and profit during the past few years.

In India, mergers and acquisitions have increased to a prominent level from the mid-1990s. In the United States, the mergers and acquisitions in the telecom sector are going on in a full-fledged manner.

Merger and acquisition in the Telecom Sector are most likely to be a horizontal merger the reason is the two entities who involved in merger are operating in the same industry, and also on the same product lines.

From the last few years, In Telecommunication industry vertical mergers are popular and attractive because telecom vendors are trying to merge with telecom operators, especially at the operational level. In acquisition, most of the time one company buys controlling stock of another company. In Ghana Telecom and Vodafone’s deal there is purely acquisition by the Vodafone.[8]

After getting the tag of world second largest telecommunication industry, India has getting attention of many big foreign players in telecom sector. And with the huge expectation of growth and profit many foreign companies in telecom sectors wanted to enter in India. But due to spectrum limitation and other entry barriers they prefer to used merger and acquisition to expand their footprints in India.

Telecommunication sector has seen rapid changes in the technology in past few recent years like 2G, 3G, and 4G. So, for being in this competitive market firms are going for M&A. smaller firms are the most insecure player in this market and for their future existence in the market they easily give their approval for merge with bigger firms because brand name plays an important role in this competitive telecommunication sector and they knows that they will be in benefit by merging with bigger company.

Attraction and demand has been picking up in Indian telecom sector as the Indian government has eased the rules and regulation regarding inter-circle and intra-circle mergers. This has led to a slew of M&A in the recent past within the domestic players as well as acquisitions by international players in the domestic market.

India’s rising integration with the global economy has led to a spurt in M&A in the telecom sector. It’s a win-a-win situation for international and Indian telecom companies as it gives foreign firms a chance to expand their footprint in South Asia and at the same time, capital scarce Indian telecom companies get the much-needed finances for expansion.

Liberalization in India’s telecommunication industry was noticed when global investor came in India in 1995 with the permission of government. They came into India through joint venture route. Some of these global companies included Vodafone, telecom Malaysia, AT&T, Hutchison Whampoa and Telstra Australia.

In telecommunication sector merger and acquisition gave some negative effects, which include Monopolization of the telecom product and services, unemployment and others. However, various countries government is taking appropriate step to control these problems.

Vodafone- Hutchison Essar Merger in 2007

In 2007, Vodafone who is the world’s biggest telecom company in terms of revenue, made a major entry into the Indian telecommunication industry by acquiring a 52 percent stake in Hutchison Essar Ltd (Hutchison Essar), an Indian telecom company because, in 2007, India was most lucrative market for world telecom companies.

Vodafone had faced many problems for taking the deal – Firstly opposition by the HTIL, Essar Ltd, aggressive bidding by the other telecom operators and the regulators who took their time for approval of deal.

But finally Vodafone clinch the deal and outbidding the other telecom competitors. Some critics felt that the merger of Vodafone, Hutchison Essar was overpaid. But Vodafone board contended that they acquire a company in the most competitive telecommunication markets in the world so it was worth to pay for this deal.[9]


[1]https://www2.deloitte.com/content/dam/Deloitte/us/Documents/technology-media-telecommunications/us-mergers-acquisitions-tech-media-telecom.pdf.

[2] Ibid.

[3] James, Andrew D., Luke Georghiou, and J. Stanley Metcalfe. “Integrating technology into merger and acquisition decision making.” Technovation 18.8-9 (1998): 563-591.

[4] Kumar B.R. (2012) Mergers and Acquisitions in the Entertainment and Media Sector. In: Mega Mergers and Acquisitions. Palgrave Macmillan, London.

[5] https://www.financierworldwide.com/ma-in-the-media-sector#.XKYWfZgzbIU.

[6] https://doi.org/10.1057/9781137005908_4.

[7] https://www.investopedia.com/investing/att-and-time-warner-merger-case-what-you-need-know/.

[8]Godfred Yaw Koi-Akrofi, Motives for Telecom Mergers and Acquisitions, (Dec. 4 2014), http://www.ijias.issr-journals.org/.

[9] ICMR, The Hutchison Essar Acquisition: Vodafone’s Foray into an Emerging Market, 2008.


CASE COMMENT ON “SURESH KUMAR KOUSHAL V. NAZ FOUNDATION”

By- Muskaan Singh

Facts of the case:

The NAZ Foundation (India) Trust (NI) is a New Delhi based NGO that has been functioning on HIV/AIDS and sexual wellbeing from 1994 onwards. They recorded a writ appeal in the Delhi High Court testing the protected legitimacy of Section 377 of the Indian Penal Code.

This area punishes unlawful sexual acts ‘against the order of nature’ which has the impact of condemning even consensual sex between two grown-ups of a similar sex or even of the other gender enjoying penile non-vaginal sexual exercises.

The petitioner battled that Section 377 infringed upon Articles 14, 15, 19 and 21 of the Constitution of India and furthermore that the section should not to condemn consensual penile non-vaginal sex between two consenting grown-ups of a similar sex.

In an achievement judgment passed on July 2, 2009, the Delhi High Court concluded that Section 377 of the Indian Penal Code, 1860 ignored different crucial rights, including the privilege to protection and right to pride under Article 21, Article 14, and Article 15.

The said choice was claimed against in the Supreme Court of India in the Suresh Kumar Koushal and another versus NAZ Foundation and Others case and it was held that the Delhi High Court wasn’t right in its discoveries and was additionally off-base in perusing down the area to permit consensual homosexual exercises between two grown-ups of a similar sex.

Arguments:

The Appellants’ denied that Section 377 was unconstitutional and made a variety of submissions as to why it was not:

  1. The High Court did a serious mistake by announcing Section 377 as breach of Articles 14, 15 and 21 of the Constitution as it disregarded the absence of any essential realities in the Respondent’s writ which would be vital for articulating upon the legality of any legal arrangement. The narrative proof provided in its place was not a reason for finding that homosexual people were singled out for unfair treatment by the law.
  2. The measurements consolidated in the Respondent’s request were deficient for finding that Section 377 adversely influenced the control of HIV AIDS and that decriminalization would lessen the quantity of such cases. The Appellants additionally contended that the information introduced was made and fake.
  3. Section 377 is completely unbiased and covers deliberate acts of physical intercourse irrespective of the sex of people committing the intercourse. As no particular class is focused by the law, no grouping has been made, subsequently rendering the finding of the High Court that it outraged Article 14 to be without base.
  4. Section 377 does not breach the right to privacy and dignity under Article 21 and the right to privacy does not include the right to commit any offence as defined under Section 377 or any other section.
  5. If the declaration were approved, India’s social structure and the institution of marriage would be influenced and it would make youngsters become enticed towards homosexual activities.
  6. Courts by their very nature ought not attempt the assignment of legislating which should be left to Parliament. The High Court was uncertain whether it was cutting off the law or perusing it down and, as long as the law is on the statute book, there is an constitutional assumption in support of it. Regardless of whether a law is good or improper is an issue that ought to be left to Parliament to choose.

The Respondents submitted:

  1. Section 377 focuses on the LGBT people group by condemning a firmly held personal for example, sexual direction. By covering inside its ambit consensual acts between people inside the privacy of their homes, it is repulsive to the right to equality. Sexual rights and sexuality are human rights ensured under Article 21. Section 377 in this way denies LGBT of their full good citizenship.
  2. The criminalization of specific activities which are a declaration of the core sexual character of gay men portrays them as lawbreakers with malicious results hindering their human poise. As Section 377 outlaws sexual action between men which is by its very nature penile and non-vaginal, it impacts gay men at a profound level and confines their entitlement to pride, personhood and character, uniformity and right to wellbeing by condemning all types of sex that gay men can indulge in.
  3. Sexual closeness is a main part of human experience and is imperative to emotional wellness, mental prosperity and social modification. By condemning sexual acts occupied with by gay men, they are denied this human experience while the equivalent is permitted to heterosexual.
  4. The Court should assess changing qualities and the worldly sensibility of Section 377. The Constitution is a living record and it ought to stay adaptable to meet recently developing issues and difficulties. The disposition of Indian culture is quick changing and the actions which were treated as an offense should not, at this point be made corrective.
  5. The right to equality under Article 14 and the right to dignity and privacy under Article 21are interlinked and must be fulfilled for other constitutional rights to be truly effectuated.
  6. The difference between obscene acts in private and public is recognized in Section 294. It should be read in light of constitutional provisions which include the right to be let alone.
  7. Section 377 is impermissibly indistinct, delegates policy making forces to the police, and results in the harassment and abuse of the privileges of LGBT people. Appellants gave proof of across the board harassment and abuse (referring to legal proof and NGO reports).
  8. Section 377 doesn’t set out any rule or strategy for practicing tact with regards to which of the considerable number of cases falling under the extensively stated law might be examined. It is quiet on whether the offense can be committed inside the home.
  9. Criminalization expands disgrace and segregation and goes about as a hindrance to HIV avoidance programs. It stops health services by anticipating the assortment of HIV information, hindering scattering of data, safeguarding the supply of condoms; restricting access health services, driving the network underground, eliminating exposure of manifestations, making a nonattendance of safe spaces prompting dangerous sex.

Judgment of the case:

The Supreme Court judges overruled the High Court’s past choice, seeing its affirmation as “legally unsustainable”. The Supreme Court at last found that Section 377 IPC doesn’t violate the Constitution and dismissed the writ appeal documented by the Respondents. Regarding its capacity to run on the legality of a law, the Supreme Court recognized that it and the High Court are empowered to declare any law void, regardless of whether authorized before the establishment of the Constitution or after.

However, it noted that there is a presumption of constitutionality in favour of all laws, including pre-constitutional laws, as the Parliament is deemed to act for the benefit of the people. The Court noted that the doctrine of severability seeks to enable unconstitutional portions of laws to be severed from the constitutional elements of the law in question with the leftover portion held and that, on the other hand, that Court has the alternative of “reading down” a law to keep it from being rendered unlawful, while ceasing from changing the quintessence of the law.

With respect to Section 377 the court saw that while it and the High Court had the option to audit the lawfulness of the law, and had the option to strike it down to the extent of its inconsistency with the Constitution, the analysis must be guided by the presumption of constitutionality and the courts must exercise self-restraint.

The court presumed that except if a reasonable sacred infringement was demonstrated, the court was not engaged to nullify the law.

In deciding the utilization of Article 14 of the Constitution to the lawfulness of Section 377, the Supreme Court cited from Re: Special Courts Bill, 1987 (1979) 1 SCC 380, which set out the extent of Article 14, including the rule that enactment need not treat all individuals precisely the equivalent, however that “all people likewise circumstanced will be dealt with the same both in benefits presented and liabilities forced”.

Further, the State had “the intensity of figuring out who ought to be viewed as a class for motivations behind enactment and corresponding to a law established on a specific subject” given that such characterization was not “self-assertive” yet: “Balanced, in other words, it must not exclusively be founded on certain characteristics or attributes which are to be found in all the people assembled and not in other people who are forgotten about however those characteristics or qualities must have a sensible connection to the object of the enactment”.

With little investigation, the court held that: “The individuals who enjoy bodily intercourse in the conventional course and the individuals who enjoy trench intercourse against the request for nature comprise various classes and the individuals falling in the last classification can’t guarantee that Section 377 experiences the bad habit of intervention and unreasonable characterization”.

In reviewing the perusing down of the Section 377 by the High Court, the Supreme Court expressed that the High Court had neglected the way that “a miniscule division of the nation’s populace establish lesbians, gays, bisexuals or transgenders” and that in the course of the most recent 150 years, less than 200 people had been indicted under Section 377, closing from this that “this can’t be made sound reason for pronouncing that section ultra vires the arrangements of Articles 14, 15 and 21 of the Constitution.”

The court likewise respected the biased treatment complained by the Naz Foundation because of Section 377 as being neither commanded nor approved by the arrangement itself and the way that the police specialists and others abuse Section 377 was not an impression of the vires of the arrangement however rather may basically be an applicable factor for Parliament to consider while judging whether to change Section 377

Concerning use of Article 21 of the Constitution, the Supreme Court expressed that the law must be capability enacted while additionally being simply, reasonable and sensible, which offer ascent to ideas of genuine state intrigue and the standard of proportionality.

The court explicitly noticed that the option to live with poise had been perceived as a piece of Article 21. In surveying the High Court’s decision that Section 377 disregarded the privilege to security, self-governance and respect, the Supreme Court invested little energy investigating the utilization of Article 21 to Section 377, rather reprimanding the High Court for depending too broadly upon decisions from different wards in its tension to ensure the “purported privileges of LGBT people”. It presumed that “Section 377 doesn’t experience the ill effects of the bad habit of illegality” with no further elaboration.

The judges noticed that while the court found that Section 377 was not unlawful, the governing body was still to think about the attractive quality and appropriateness of erasing or altering the arrangement.

Application of Interpretation of Statues:

In the case of Naz Foundation, the Delhi Court used the golden rule of interpretation to avoid injustice which would not be kept away from if a mechanical translation of the language is done when court held that sexual orientation is a ground closely resembling sex in Article 15 and Thus, discrimination on the basis of sexual orientation can’t “be allowed” by Article 15. In this manner, section 15 was discovered violative of Article 15.

Also, Court relied on the case of Anuj Garg vs. Hotel Association of India[1]and the standards down for this situation. All things considered, the demonstration being referred to was additionally a pre-constitutional legislation and in spite of the fact that it was spared regarding Article 14, 15 and 19 of the Constitution of India, was held as admissible in law.

There is along these lines no assumption of lawfulness of a frontier enactment. Thusly, however the rule could have been held to be a substantial bit of enactment keeping in see the cultural condition on those occasions, yet with the progressions happening in that both in the local as additionally worldwide field such a law can likewise be proclaimed invalid.

Court likewise went in to talk about and apply the guideline of severability. The supplication of the candidate was to pronounce Section 377 IPC as unlawful to the degree the said arrangement influences private sexual acts between consenting grown-ups in private with the goal that appropriateness of area 377 IPC keeps on packaging including non-consensual sex.

Two Kinds of Severability were discussed:

  1. Statutory provision may contain unmistakable and separate words managing particular and separate subjects. The principal sub section might be legitimate and the subsequent void. In such a case, the court may erase the subsequent sub area by regarding it as severable.
  2. There is anyway another sort of severability in particular severability in application, or severability in requirement. The subject of this other sort of severability emerges when a condemned arrangement is one resolute entirety. Here, severability can’t be applied by erasing a culpable arrangement and leaving the rest standing.

Thus, Court applied this second sort of severability to the arrangement and pronounced that section 377 IPC, insofar it condemns consensual sexual demonstrations of grown-ups in private, is violative of Article 21, 14 and 15 of the constitution.

The arrangements of Section 377 IPC were held to keep on overseeing non-consensual penile non-vaginal sex and penile non-vaginal sex including minors. This explanation was to be hold till, obviously, Parliament decides to alter the law to effectuate the suggestion of the Law Commission of India in its 172nd Report.

The Golden Rule:

It is known as the golden rule since it tackles all the issues of interpretation. The rule says that to begin with we will pass by the literal rule, however, if the interpretation given through the literal rule prompts a few or any sort of uncertainty, shamefulness, burden, hardship, disparity, at that point in every single such occasion the strict significance will be disposed of and interpretation will be done in such a way, that the motive behind the enactment is satisfied.

The literal rule follows the idea of interpreting the characteristic importance of the words utilized in the statute. However, if interpreting leads to any kind of repulsiveness, absurdity or hardship, at that point the court must alter the importance to the degree of injustice or absurdity caused and no further to forbid the result.

This rule proposes that the outcomes and impacts of interpretation merit significantly increasingly significant in light of the fact that they are the intimations of the true meaning of the words utilized by the law making body.

Now and again, while applying this rule, the understanding done may completely inverse of the literal rule, yet it will be supported as a result of the brilliant guideline. The assumption here is that the legislature doesn’t expect certain items. In this way, any such understanding which prompts unintended items will be dismissed.

Case laws:

Tirath Singh v. Bachittar Singh, AIR 1955 SC 850

In this case, there was an issue as to giving of the notification under area 99 of Representation of People’s Act, 1951, as to degenerate practices engaged with the political decision.

According to the rule, the notification will be given to each one of those people who are involved with the political race appeal and simultaneously to the individuals who are not involved with it. Tirath Singh battled that no such notification was given to him under the said arrangement. The notification was just given to the individuals who were non-gatherings to the political race appeal. This was tested to be invalid on this specific ground.

The court held that what is pondered is giving of the data and the data regardless of whether it is given twice continues as before. The gathering to the appeal is now having the notification with respect to the request, in this way, segment 99 will be so deciphered by applying the brilliant principle that notice is required against non-parties as it were.

Conclusion:

In the case of Suresh Koushal, the Apex Court a lot of accentuated on the precept of assumption of legality, even if there should arise an occurrence of a pre-protected resolution. Court held that there is nothing to recommend that this standard would not matter to pre-established laws which have been embraced by the parliament and utilized with or without revision.

On the off chance that no correction is made to a specific law it might speak to a choice that the council has taken to leave the law all things considered and this choice is the same as a choice to alter and change the law or sanction another law.

The 172nd Law commission report explicitly suggested cancellation of that section and the issue has more than once come easily proven wrong. Be that as it may, the council has decided not to change the law or return to it.

This shows the Parliament, which is undisputedly the agent body of the individuals of India Has not thought it legitimate to erase this arrangement. Court additionally saw that: “Except if an unmistakable sacred infringement is demonstrated, this court isn’t enabled to strike down a law just by uprightness of its falling into neglect or the impression of the general public having changed as respects the authenticity of its motivation and its need.

The Supreme Court additionally saw that who enjoy licentious intercourse in the conventional course and the individuals who enjoy animalistic intercourse against the request for nature comprises an alternate class and the individuals falling in a similar classification can’t guarantee that Section 377 experiences the bad habit of assertion and unreasonable order.

What Section 377 does is simply characterize the specific offense and recommend discipline for a similar which can be granted if in the preliminary directed as per the arrangements of the Code of Criminal Procedure and different sculptures of a similar family the individual is seen as blameworthy. Thusly, the High Court was not viewed as right in announcing Section 377 IPC Ultra vires.

The Supreme court likewise excused the “blindfolded” utilization of outside decisions by the Delhi High Court. It expressed that however these decisions shed significant light on different parts of this privilege and are educational corresponding to the predicament of sexual minorities, they can’t be applied blindfolded for choosing the legality of the law established by the Indian Legislature.

Thus, the court held that Section 377 IPC doesn’t experience the ill effects of the bad habit of illegality and the judgment passed by the Delhi High Court is legitimately unreasonable.

Finally, on 6 September 2018, the Court ruled unanimously in Navtej Singh Johar v. Association of India that Section 377 was unlawful “to the extent that it condemns consensual sexual direct between grown-ups of a similar sex “.


[1](2008) 3 SCC 1


ROLE OF JUDICIARY IN ENVIRONMENT PROTECTION

   By: Aayushi Mehta & Harshita Poonia

Introduction

Environment is no one’s property to destroy; it’s everyone’s responsibility to protect.

Mohith Agadi

The Healthy Environment is the complete term encompassing all such normal and biotic variables that make conceivable to engage Right to life in obvious soul. The earth outfits all basics forever thus there has been a nearby connection between nature and people.

Without a characteristic and amiable condition, human presence is unimaginable on earth. Since days of yore, man had put forth cognizant and decided attempts to utilize the common assets and to alter his environmental factors so the antagonistic effect brought about by boundaries of temperature precipitation and predators might be diminished.

In the mission of making life more agreeable man has consistently abused the nature. Agriculture, industrialization and infrastructural advancements are the reasons for misuse of regular assets.

Human exercises make an assortment of wastes and bye-items which amass over some undefined time frame and may get harmful to the normally developing plants, creature and the humankind.

 Unpredictable utilization of composts and pesticides has added to the issue. The fast and spontaneous industrialization has brought forth plants discharging toxic gas vapor and harmful effluents, making life more troublesome on earth.

These things are continually making harmful conditions. It is additionally the obligation of the State to secure the earth as epitomized under article 48-A, 39 (e) and 47 of the Indian Constitution.

So as to manage these ever-developing issues, numerous demonstrations have additionally been ordered by the parliament however it is a court which consistently keeps beware of appropriate execution of these establishments and legal executive had assumed a significant function in deciphering the laws to ensure/ protect the earth.

The Indian Judiciary, the caretaker of constitution, has been giving focused light for such significant Right while translating the Constitution in certain way. Legal Chronology is filled with milestone judgments, which set out upon that Right to life far surpasses simple breathing and strolling and created Environment Jurisprudence.

Legal executive assumes the essential part in the insurance of condition. One of the primary developments in the Indian Judiciary is the Public Interest Litigation (PIL). It began in the year 1970.

Writ petitions as PILs have been acknowledged by the Supreme Court under Article 32 and Article 226 (Power of High Courts to give certain writs) of the Indian Constitution.

The PILs got established authorization in the 42nd Constitution Amendment Act 1974, which presented Article 39-A in the Indian Constitution to give equivalent equity and free legitimate guidance.

The PIL energized and influenced people (influenced by any undertaking), public minded individuals, willful associations, NGOs; Judges all alone, to begin without paying any court expenses.

Because of PILs, numerous milestone decisions are distributed. PIL of court shows an individual, specialists or Govt., to work ethically. The Supreme Court and the High Courts have been engaging natural petitions under Articles 32 and 226 of the Indian Constitution as establishing infringement of Article 21.

While engaging environmental suits by ecological NGOs and educated well known people like M.C. Mehta, these courts have passed milestone decisions, in this manner driving public bodies to make a move on solving ecological issues.

Provisions relevant to Environment in the Constitution

The provisions in the Constitution which deals with the protection of the Environment are as follows:

  1. Article 47: Duty of the State to raise the degree of nutrition and the way of life and to improve general wellbeing The State will respect the raising of the degree of nourishment and the way of life of its kin and the improvement of general wellbeing as among its essential obligations and, specifically, the State will try to achieve restriction of the utilization aside from restorative reasons for inebriating drinks and of medications which are harmful to welling.
  • Article 48A: Protection and improvement of condition and saving of forest and wildlife. The State will try to ensure and improve the earth and to shield the forest and natural life of the country.
  • Article 51A(g): to ensure and improve the common habitat including forests, woods, lakes, streams and wildlife, and to have compassion for living animals;
  • Article 32:Remedies for enforcement of rights conferred by this Part: (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed; (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever might be suitable, for the implementation of any of the rights presented by this Part; (3) Without bias to the forces given on the Supreme Court by statement ( 1 ) and ( 2 ), Parliament may by law enable some other court to practice inside the nearby furthest reaches of its ward all or any of the forces exercisable by the Supreme Court under condition ( 2 ); and (4) The privilege ensured by this article will not be suspended aside from as in any case accommodated by this Constitution.
  • Article 226:  Power of High Courts to issue certain writs (1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo-warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose (2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories
  • Article 246: Subject matter of laws made by Parliament and by the Legislatures of States: (1) Notwithstanding anything in provisos ( 2 ) and ( 3 ), Parliament has restrictive capacity to make laws concerning any of the issues specified in List I in the Seventh Schedule (in this Constitution alluded to as the Union List) (2) Notwithstanding anything in condition ( 3 ), Parliament, and, subject to provision ( 1 ), the Legislature of any State additionally, have capacity to make laws regarding any of the issues counted in List III in the Seventh Schedule (in this Constitution alluded to as the Concurrent List) (4) Parliament has capacity to make laws as for any issue for any aspect of the domain of India excluded (from a State) despite that such issue is an issue identified in the State List
  • Article 253: Legislation for offering impact to peaceful accords: Notwithstanding anything in the previous arrangements of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

Interpretation of Constitution vis-à-vis Health & Environment by Judiciary

Goal 21 of the United Nations Environment Programme (UNEP) emphasize on the actions for Sustainable Development. It depends mainly on the three arms of the government i.e. Legislature, Executive and Judiciary.

Thereby, to ensure a Sustainable Development of the environment the Interpretation of Constitution towards Health and Environment and vis-à-vis by the Judiciary are as follows:

  1. The first constitutional step towards protection of the environment and to ensure a healthy environment was taken by the Supreme Court of India in the case of Subhash Kumar v. State of Bihar (1991 AIR 420). It was under this case that water and air were considered important for life as referred to under Article 21 “Right to Life”.
  • The Supreme Court has also highlighted that protection of Environment is necessary even though a minimal economic cost is involved in its protection and ensure healthy life to all citizens – Rural Litigation and Entitlement Kendra, Dehradun v. State of UP (1985 AIR 652).
  • To ensure the best environment, the court in the case of Vellore Citizens cases (AIR 1996 SC 2715) for the first time introduced the concept of Sustainable Development i.e. to ensure healthy and safe environment.
  • Moreover, the Polluter Pay Principle by the Judiciary through the case of Vellore Citizen’s Welfare Forum v. Union of India (AIR 1996 SC 2715) was a major step towards reducing of pollution where the cost of polluting the environment is borne by the person who actually polluted it i.e. harmed it. It is an international environment protection norm to protect the environment from further damage and ensure healthy living.
  • The Doctrine of Public Trust which states that resources like water, air, forest cannot be made subject of a private ownership. It was also held in M.C. Mehta v. Kamalnath & Others ((1997) 1 SCC 388) that creating private ownership towards resources like water, air, forest etc. would be highly unjustified.
  • As water is the major source of survival of all it was stated by the judiciary that water is the basic need and is included within the Right to Life under Article 21- Narmada Bachao Andolan v. Union of India & Others ((2000) 10 SCC 664).
  • Moreover, the Judiciary has also brought forward the concept of absolute liability. It was brought into force after the Delhi Gas Leak where the industry engaged in hazardous process is liable to compensate for all the damage caused to the environment and also to the persons affected. The introduction of this concept has brought changes in the laws related to compensation in India.
  • Likewise, the SC through the case of Ratlam Municipal Council v. Vardichand (1981 SCR (1) 97) stated that damaging of environment is to be considered as a Public Nuisance. As, it is the duty of the public authorities to get over it by way of filing Public Interest Litigation (PIL) as a medium.

Judicial Remedies for Environment Protection

The following are the Judicial Remedies available for Environment Protection:

  1. Writ Petition under Article 226 or Article 32 can be filed.
  2. The two core remedies for Environment Protection in India are tortuous remedy and statutory remedy. The tortuous remedy includes trespass, nuisance, negligence and strict liability while the statutory remedy includes any action brought under Section 19 of the Environment (Protection) Act, 1986 etc.

Conclusion

Though it can be said that the Indian Judiciary has played a vital role in protecting the environment, living in an environment where there is existence of competition for survival in the market.

There have been a number of market players who manufacture goods for the satisfaction of consumers. But the entire process of consumer satisfaction requires manufacturing of the products in the industry.

Thereby, one of the major reasons for our environment degradation has been the level of untreated air released by these industries in the air and also discharging of toxic water in the river, sea which results in the death of the sea animals.

Also, another reason for degraded environment is because of the carelessness of the people who litter in the public places. Though the Swachh Bharat Mission has been a success but there lies a great path ahead to reach a level in the air, water, soil quantity index where the level of pollution is minimal.


A CASE COMMENT ON M.C. MEHTA V. KAMALNATH AND ORS.

By- Diksha Gupta & Adhish Saxena

Hon'ble Judges:  S.Saghir Ahmed and Kuldip Singh.

Citation of the Case: (1997)1 SCC 388.,AIR 2000 SC 1997, MANU/SC/0416/2000                                 

Name of the parties & their Councils-

For Petitioner/Appellant/Plaintiff:  M.C. Mehta and Seema Midha, Advs

For Respondent/Defendant:  H.N. Salve, Sr. Adv., M.S. Vashisht, Rajiv Dutta, Shiv Pujan Singh, J.S. Atri, L.R. Rath, Advs.Altaf Ahmad, Additional Solicitor Gen. N.C. Kochar, G.L. Sanghi, Sr. Advs., Naresh K. Sharma, N.S. Vashist, Uday Kumar, Kapil Sharma, Enakshi kulshrestha, Rajiv Dutta, Vijay Panjwani, Anish Garg, (in-person) for (Hotel Hilton), B.V. Balram Das, Devendra S

Laws & Rules involved:
Constitution of India
 – Article 32

Water (Prevention and Control of Pollution) Act, 1974 – Sections 24

Environmental Law 1986

Arguments by the parties:

Arguments for the Plaintiff

Mr. M.C. Mehta, who has been pursuing this case with the usual vigor and vehemence, has contended that if someone disturbs the ecological balance and tinkers with the innate conditions of rivers, forests, air and water, which are the offerings of nature, he/she would be at fault of violating not just the Fundamental Rights, guaranteed under Article 21 of the Constitution, but also for violating the fundamental duties to look after environment under Article 51A(g) which provides that it shall be the duty of every citizen to look after and develop the natural environment including forests, lakes, rivers and wildlife and to show compassion for living creatures.[1]

Arguments for the defendants

  • Whatever erection activity was done by the motel on the land under its custody and on the region around, if any, was done with a view to shield the lease-hold land from floods.
  • Divisional Forest Officer allowed the motel to carry out the essential works subject matter to the state of affairs that the department would not be accountable to pay any amount incurred for the said rationale by the motel.

However, it could be easily ascertained from the facts that the Motel had made diverse erections on the surrounding region and on the banks of the river.

Facts & Issue:

 The State Government of Himachal Pradesh had leased a riparian forestland to a private company, “Span Motels Private Limited”. The said company wanted to build a club at bank of River Beas. The Defendant’s family, Kamal Nath, had direct link with the private company.[2]

The Club represented the Defendant’s vision to have a house on the bank of River Beas in the gloom of the snow-capped Zanskar ranges. The Defendant being a Minister of Environment and Forest regularized this project.

The Supreme Court took cognizance of the matter through a newspaper article published in the Indian Express dated February 25, 1996, under the caption “Kamal Nath dares the mighty Beas to keep his dreams afloat”.

It was contended by the Appellant that since five months, the private company has been moving bulldozers and earth movers to turn the course of the Beas for a second time.[3] The Court considered the affidavits filed by the Defendant and the company.

The area had been facing regular flooding and changing the direction of course would lead major aggravated environmental damage. The Court also considered different assessments made by the government departments pertaining to the project.

However, there was no bare text which carved out a clear meaning for Public Trust Doctrine; the Supreme Court relied profoundly on English and American Courts explanation of the term.

Issue:

  1. Whether or not Mr. Kamal Nath has been precisely inducted as the Defendant in the writ petition?
  2. Whether or not the erection activity done by M/s SMPL was done with a vision to shield the charter hold land from floods?
  3. Whether or not the Public trust Doctrine is a part of the Indian Legal system?

Observation of the court:

The court observed-

“The issues presented in this case demonstrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts.”[4]

The Supreme Court reviewed a number of U.S. Court decisions, particularly the judgment of the Supreme Court of California in the Mono Lake Case.[5] In Mono Lake, the environmentalist filed a case in opposition to the city of Los Angeles which was drawing water from streams that fed Mono Lake, a large saline lake rich in brine shrimps and bird life.[6]

As a result of the diversion, the lake level was falling, marring the scenic beauty and imperiling the birds. Upholding the plaintiff’s claim that the public trust doctrine could be used to supersede Los Angeles’s water diversion, the California Supreme Court held.[7]

“Thus, the public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation o f the duty o f the state to protect the people s common heritage o f streams, lakes, marshlands and tidelands, surrendering that right o f protection only in rare cases when the abandonment o f that right is consistent with the purposes o f the trust. The state has an affirmative duty to take the public trust in to account in the planning and allocation o f water resources and to protect public trust use whenever feasible…………”

Judgment:

The Supreme Court in this case stated that the Public Trust Doctrine first and foremost rests on the principle that the resources like air, sea, waters and forests have such great significance to the people as a whole that it would be unfair to make them a subject matter of private ownership. The court observed that:

“As rivers, forests, minerals and such different resources constitute a country’s normal riches. These resources are not to be misused and depleted by any one era. Each era owes an obligation to every succeeding era to create and save the normal resources of the country in the most ideal way. It is in light of a legitimate concern for humanity. It is in light of a legitimate concern for the country. Therefore, the Public Trust doctrine is a piece of the rule that everyone must follow. The court additionally decided that there is no any legitimate motivation to preclude the utilization of the Public Trust Doctrine in all biological communities in India…”[8]

The public trust doctrine, as said by the Court in the judgment was an element of the law of the land. The former approval granted by the Government of India, Ministry of Environment and Forest and the lease-deed dated 11.04.1994 in support of the Motel were quashed.

The lease granted to the Motel by the said lease-deed in respect of 27 bighas and 12 biswas of region, is cancelled and set aside. The Himachal Pradesh Government shall take over the region and restore it to its original-natural environment. The Motel shall pay compensation by way of cost for the restitution of the environment and ecology of the area. The contamination caused by various constitutions made by the Motel in the riverbed and the banks on the river Beas have to be removed and reversed.[9]

Position of law before & after the case:

Since MC Mehta v Kamal Nath, the public trust doctrine has been held to be applicable “to all ecosystems operating in … natural resources.”[10] Unlike the American case law which conventionally has limited the relevance of the doctrine to water bodies, Indian courts have not only applied the Public Trust Doctrine to water bodies and rivers but also to shield forests, public parks, minerals, natural gas, and even radio frequencies (such as those used for mobile phone networks) .[11]

The Doctrine of Public Trust makes it obvious that the state is not the owner of the natural resources in the country but a trustee who holds fiduciary bond with the public. By accepting this task the government is expected to be loyal to the interests of its citizens and to discharge its duty with the interest of the society at heart and involve them in decision-making process concerning the management of natural resources in the country.


The Public Trust Doctrine may provide the means for escalating the efficiency of ecological impact review laws. Thus, under the doctrine, the State has a duty as a trustee under Art 48A to look after and develop the environment and protect the forests and wildlife of the nation.

While applying Art 21 (right to life), the state is gratified to take account of Art 48A, a Directive Principle of State Policy. The state’s trusteeship duty has been extended to embrace a right to a healthy environment.


It is remarkable to note that in the Kamal Nath case the Supreme Court held that even if there is a separate and an unambiguous law to deal with the question before the Court, it may still apply public trust doctrine. If there is no suitable legislation to conserve the natural resources, the public authorities should take advantage of this doctrine in count to the fact that there was a branch of municipal law.

Also the Supreme Court in M.I. builders[12], affirmed that public trust doctrine has grown from Article 21 of the constitution. By attaching this doctrine to the fundamental right to life, the Supreme Court appears to be keen to expand the relevance of this doctrine.

It seems that the court would give priority to right to life when the public trust doctrine, as a part of right to a safe and healthy environment, is challenged by any further fundamental rights.
Additionally by ordering the Mahapalika to re-establish the park to its original beauty, the Supreme Court redefined the duties of a trustee to its beneficiaries or the users of the recreational area.

In consequence, it united the local authorities’ duty as a trustee with the theory of intra-generational and inter-generational justice. Moreover, the case came before the court as a judicial assessment and not as a challenge against the verdict of the government from a beneficiary.

The doctrine acts as a check upon administrative stroke by providing a system for judicial or resource distribution decisions. So, public trust doctrine could provide as a supplementary device for ecological protection particularly where executive discretion has been abused.[13]

Comment:

M.C Mehta v. Kamal Nath [14] is the first of its type to develop the notion of Doctrine of Public Trust. The Doctrine was a budding perception and there were no recognized cases concerning to such doctrine.

Owing to Article 48A and Article 51(A) (g) and relying on judgments of English and American courts, the Supreme Court has precisely dealt with the conception.

The judgment delivered by a division bench comprising of Justices Kuldip Singh and Saiyed Ahmad. Firstly, the Court had appropriately resolute on the issue of infringement by the private company defining Public Trust Doctrine. It clearly acknowledged that the Indian legal structure is based on the English Common Law and owing to the fact that State is just a trustee of the natural assets which are only meant for public use.

State cannot transfer such or alter any such resource to suit their expediency according to their whims and fancies.

This point is properly dealt with as it is the fundamental duty under Article 48A which was introduced by the 42nd Amendment Act, 1976 to guard and develop the environment and safeguard the natural resources and wildlife.

Conclusion:

The Doctrine of Public Trust is an extremely functional tool in the hands of our Judiciary to save from harm and protect the environment from the capricious and unfair actions of the governmental authorities.

These days the manipulate of private actors (corporate bodies) is rising worldwide, there are high chances of abuse of the natural resources or funding of these resources in support of private players by the governments.

In such cases the Doctrine of Public Trust would work as an effectual check of the exercise of rule by government with regard to dealings and administration of natural resources.


[1] MANU/SC/0416/2000

[2]  “PM declares his FDs, Kamal Nath & Deora business interests”. Indian Express. 9 June 2011. Retrieved 14 May 2013.

[3] Para 1 of the Judgment

[4] M C Mehta Vs Kamal Nath (1997) 1 SCC 388.

[5] National Audubon Society Vs Superior Court of Alpine Country, 33 Cal 3d 419, as cited in Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India ; Cases, Materials and Statutes, (2001), p. 169.

[6] Ibid

[7] Ibid

[8] M C Mehta Vs Kamal Nath (1997) 1 SCC 388.

[9]  “Land Mark Cases”.mcmef.org Archived from the original on 27 December 2008. Retrieved 9 January 2013.

[10] MANU/SC/0416/2000

[11] http://www.progressivereform.org/CPRBlog.cfm?idBlog=612C3B8C-AB0E-C2F9-F3EE8EAC3404DAE9

[12] (1999) 6 SCC 464.

[13] http://www.legalservicesindia.com/article/article/notion-of-doctrine-of-public-trust-in-india-1429-1.html

[14] (1997) 1 SCC 388.


BREACH OF TRUST IN HOSTILE TAKEOVERS

By- Diksha Gupta & Adhish Saxena

Introduction

Corporate restructuring is an important aspect of the corporate world. A company might do it either in an ethical way or in a playful manner. The common examples among the business of such companies include hostile takeovers, mergers, or management buyout is wealth boosts the asset of the acquiring company.[1]

Bitterly fought contests for corporate control have become a familiar spectacle as business entities have aggressively sought to extend their economic dominion by making unsolicited tender offers for other commercial enterprises.

When confronted with unsolicited tender offers, directors of target corporations sometimes respond by adopting far-reaching defensive measures that drastically alter the character or capital structure of their corporations.

In implementing these defensive tactics, target corporations frequently incur onerous indebtedness or sell off some of their most valuable and essential assets. As a result of these defensive manoeuvres, the continued financial viability of the corporation may be put at considerable risk.

Hostile acquisitions have an approximately equal negative impact on labour demand as that compared to friendly takeovers.

The Mechanism of Takeovers

The term takeover is a process in which one corporate entity acquires another entity by taking the effective control of the business entity.[2] It might be done by taking the acquisition of some or all of the target’s capital stock or assets.

But, at the same time the process might be perilous as the target’s board of director’s resists, the takeover is described as a “hostile” or “unfriendly” takeover. The usual method of attempting a hostile takeover is for the acquisitive entity to make a tender offer to the shareholders of the target corporation.

The bidder may believe that a target corporation contains unrealized values because of the less than optimal performance of its current management. In such a case, the bidder’s intent is to increase both profits and share prices by installing new and it is hoped more adept management, thereby capturing the target’s unrealized values.[3]

On the other hand, the bidder may view the target corporation as being efficiently run, but believe that a successful takeover would result in a business combination resulting in synergistic commercial gains for both parties.

A closely related, but certainly less laudable, motive for affecting a takeover is the monopolistic desire to increase the market share of the acquirer through the acquisition of a competing business.[4]

Still another explanation for a takeover bid may be the offeror’s ego-enhancing pursuit of raw power, irrespective of any economic benefits that may be gained from the acquisition.

An additional explanation for making a tender offer is that the offeror seeks to stimulate the interests of other investors by putting the shares of the target corporation into market play. If competitive bidding then develops, the original offeror will profit through the sale of its shareholdings at a bid-up price level.[5]

Breach of Trust in Hostile Takeovers

The most elemental part of doing business is the trust which stakeholders hold within the company and with their shareholders. The primary facet of trust depicts that the trustworthiness is correlated with other personal characteristics and actions.

The situation of hostility arises when the contract between shareholders and the stakeholders becomes burdensome. The obligatory managers are a prerequisite to realizing the gains from the breach.[6]

As soon as these managers are removed after the takeover, control reverts back to the bidder company and their administration captures the effective control of the company. Therefore, such hostile takeovers thus enable shareholders to redistribute wealth from stakeholders to themselves.

The elemental breach of trust comes from an implicit contract. For breach to be an important source of gains, hostile takeovers must not be anticipated by the stakeholders, who entered into implicit contracts expecting the firms to be run by trustworthy managers.[7]

Effect of Hostile Takeovers on Employment

If the merger of two firms results in a different optimal employment size to that previously obtaining for them as separate entities, then a profit-maximizing management will need to effect an adjustment in the labour force.[8]

However, movement to the newly desired level of employment is unlikely to be instantaneous, and the process of adjustment will depend on the balance of costs between changing employment levels and being away from the optimum.

Different specifications of a dynamic labour demand function may be derived depending on the assumptions that are made concerning the form of adjustment costs, the production function, the predetermination of production and the capital stock.[9]

It has been widely contended that hostile takeovers have adverse employment consequences. Firstly, hostility has been interpreted as signalling a disciplinary acquisition whose objective is the substitution of a new set of managers to raise the return on corporate assets.

Such transactions are considered likely to be associated with increased labour productivity and job losses. Secondly, it has been conjectured that a hostile acquisition offers a unique opportunity for employers to renege on the explicit and implicit terms of employment of workers in the acquired company.[10]

This would allow a transfer of value from labour to capital, at least some of which will take the form of job losses.

Conclusion

Andrei Shleifer puts it as, “Hostile Takeovers are external means of removing the managers who uphold the stakeholder’s claims. Takeovers then allow the shareholders to appropriate stakeholders ex post rents in the implicit contract.

The games are split between the shareholders of the acquired and the acquiring firm. At least, in part, therefore, the gains are wealth redistributing and not wealth creating.” [11]

In a nutshell, the breach of trust generally takes place in case of a hostile takeover as the incumbent management is replaced who used to comply with the implicit contracts by a new management, who will find it easy to breach the implicit contract instead of complying with it so as to carve out the costs incurred on takeover.

Therefore, the most critical question that revolves around the hostile takeover is whether the takeover premium is a result of value creation or wealth redistribution and hence, it is wealth redistribution.


[1] Andrei Shleifer & Lawrence H. Summers, Breach of Trust in Hostile Takeovers, https://scholar.harvard.edu/files/shleifer/files/breach_of_trust.pdf

[2] Richard C. Brown, The Role of the Courts in Hostile Takeovers, 93 Dick. L. Rev. 195 (1989).

[3] Richard C. Brown, The role of courts in Hostile Takeovers, https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/dlr93&id=205&men_tab=srchresults

[4] Curtis J. Milhaupt, In the shadow of Delaware? The rise of Hostile Takeovers in Japan, https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/clr105&id=2221&men_tab=srchresult

[5] Richard C. Brown, The Role of the Courts in Hostile Takeovers, 93 Dick. L. Rev. 195 (1989).

[6] Andrei Shleifer & Lawrence H. Summers, Breach of Trust in Hostile Takeovers, https://scholar.harvard.edu/files/shleifer/files/breach_of_trust.pdf

[7] Id.

[8] Anthony Niblett, Hostile Takeovers and Overreliance, https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/sealr38&id=614&men_tab=srchresults

[9]  Id.

[10] Id.

[11]  Andrei Shleifer & Lawrence H. Summers, Breach of Trust in Hostile Takeovers, https://scholar.harvard.edu/files/shleifer/files/breach_of_trust.pdf


A CRITICAL APPRAISAL OF DIVORCE BY MUTUAL CONSENT UNDER INDIAN LAW

By- Adhish Chandra Saxena & Diksha Gupta

Introduction

The ground of divorce by mutual consent was embedded in the Hindu Marriage Act, 1955 by an amendment in 1976, by including Section 13B[1]. Section 13B of the Hindu Marriage Act[2], 1955 runs:

“Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.”

On the movement of both the parties made not sooner than a half year after the date of the presentation of the appeal to alluded to in subsection (1) and not later than eighteen months after the said date, if the petition is not pulled back meanwhile, the court should, on being fulfilled, in the wake of hearing the parties and in the wake of making such petition as it supposes fit, that a marriage has been solemnized and that the averments in the petition of are true, pass a pronouncement of divorce announcing the marriage to be broken down with impact from the date of the announcement.

Section 28 of the Special Marriage Act, 1954 which likewise manages divorce on grounds of mutual consent is pari materia to the above section.

Requirements of divorce by mutual consent

The necessities which must be met to look for divorce under the Hindu Marriage Act are as per the following:

  1. The parties have been living separately for a time of no less than one year
  2. They have not possessed the capacity to live respectively, and
  3. They have mutually agreed that marriage ought to be resolved.[3]

The main prerequisite is that the parties ought to be living separately for a time of no less than one year before filing the divorce appeal. It is important to comprehend what does the expression ‘living separately’ implies.

Living Separately

The Supreme Court of India on account of Sureshta Devi v. Om Prakash[4] has precluded “that the expression living separately connotes not living like a couple, merely husband and wife. It has no reference to the place of living. The parties may live under the same rooftop by way of circumstances, but they may not be living as a couple. What is by all accounts vital is that they want to perform conjugal commitments or marital obligations and with that, they have been living separately for a time of one year immediately preceding the presentation of the petition.”

It has been precluded by Supreme Court in different cases that the expression “have been living separately’ does not really implies physical division or living separately and separated what is material is that no conjugal commitments are performed between the mates and they are not living respectively as a husband and wife.

Parties Have Not Been Able To Live Together

In the wake of setting up the main necessity that the parties were living separately for one year or more, the second point that must be built up is that the parties have not possessed the capacity to live together respectively.

In Sureshta Devi v. Om Prakash[5], the Supreme Court watched that the expression “have not possessed the capacity to live together” appears to show the idea of separated marriage to such an extent that there is no probability of any compromise.

The parties require not to set up the way that they have not possessed the capacity to live respectively. The very certainty that they have displayed an appeal by mutual consent is demonstrative of this reality that they have not possessed the capacity to live together[6]. However, it is exceptionally basic to decide if assent given by both the parties is free and not got by any sort of power, extortion, or undue impact.

Subsequent to fulfilling the over two necessities and recording a joint petition for divorce by mutual consent, the parties must sit tight for no less than a half year, normally named as the “cooling period”.

After the finish of this period, if the underlying appeal is not pulled back by both of the parties or together, both the parties may move court by method for joint movement inside the stipulated time of year and a half from the underlying date of the recording of the joint petition. This period is given to parties to reexamine their choice.

The accompanying parts of this arrangement have been liable to legal interpretation:[7]

Whether the waiting period of six months is mandatory or directory?

There have been clashing judgments on this respect whether the courts ought to obligatorily sit tight for a time of a half year as given in the subsection (2) of Section 13B.

In the Grandhi Venkata Chitti Abbai[8]case, the court watched that-“If Section 13-B (2) is perused as required, the very reason for changing the approach of pronouncement of divorce by mutual consent will be disappointed all the more so when the parties began living separately for an impressive time. Subsequently, s 13-B (2) however is obligatory in the frame is catalog in substance.

In like manner, on account of Dinesh Kumar Shukla v. Neeta,[9] it was held that the holding up period is a registry in nature and it can be brought down from a half year (gave the obligatory necessities of s 13-B (1) are satisfied) when all endeavors at compromise fizzled.

However, on account of Hitesh Narendra Doshi v. Jesal Hitesh Joshi,[10] it was held that “the arrangement has an unmistakable reason and question, i.e. offering time to the parties for thoughtfulness and compromise. Reason and protest gazes at us so plainly by the dialect communicated in s 13-B (2) of the Act victimizing endlessly the privilege of the court from considering the petition of sooner than a half year.”

On account of Ashok Hurra v. Rupa Ashok,[11] it was held that “in the exercise of its exceptional powers under Article 142 of the Constitution, the Supreme Court can give alleviation to the parties without sitting tight for the statutory time of a half year stipulated in s. 13-B of the Act. This principle of unrecoverable separation of marriage is not accessible even to the High Courts which don’t have powers like those practiced by the Supreme Court under Article 142 of the Constitution.”

Along these lines, the courts have been slanted more towards forgoing off this period if the condition of the case demands so and where there is no possibility of compromise between the parties. Additionally, the Supreme Court by method for its remarkable powers as given under Article 142 of the Indian Constitution can give divorce without sitting tight for a half-year on the off chance that it is fulfilled that the marriage is hopelessly separated.

In any case, this power is restricted just to the Supreme Court. There is still vulnerability whether High Courts and Family Courts need to obligatorily sit tight for a time of a half year. In any case, as it is evident from many situations where there is no plausibility of compromise between the parties and the marriage has been separated hopelessly, the courts ought to take after the soul of law more than the formal prerequisites of the section.

Whether consent can be unilaterally withdrawn?

There have been differentiating judgments on this issue. The contention is that since under this section the two parties need to record a joint appeal to for divorce how might one gathering singularly pull back from it.

Additionally, one of the motivations behind giving an era of a half year is to enable parties to reconsider their choice, and in the event that one of the gatherings chooses to pull back from it, why should it not be permitted to do as such.

In Jayashree Ramesh Londhe v. Ramesh Bhikaji,[12] the court held that once a joint appeal by mutual consent was recorded, no gathering could pull back from it without the assent of both the parties.

In like manner, in Nachhattar Singh v. Harcharan Kaur,[13] it was held that-“If both the parties had deliberately agreed to record the appeal to for dissolving the marriage by mutual consent and every single other condition said in sub-Section (1) of section 13-B of the Act are satisfied, it won’t be interested in a gathering to pull back the assent.”

Then again, in Sureshta Devi v. Om Prakash[14], the Court has held that petition of divorce can be pulled back singularly. It was held for this situation that on the off chance that one of the parties pulls back its assent the Court can’t pass an announcement of divorce by mutual consent.

The Court held that “if the declaration is exclusively in light of the underlying appeal it invalidates the entire thought of commonality and assent for divorce. Mutual agreement to divorce is the sine qua non for passing a pronouncement for divorce under Section 13-B. Mutual consent should precede till the divorces proclaim is passed.”[15]

In any case, in a current judgment of Supreme Court on account of Anil Kumar Jain v. Maya Jain[16] it was held that-“Under the current laws, the assent given by the parties at the season of the recording of the joint petition of for divorce by common agree needs to subsist till the second stage when the appeal to comes up for orders and a pronouncement for divorce is at long last passed and it is just the Supreme Court, which, in the exercise of its exceptional powers under Article 142 of the Constitution, can pass petitions to do finish equity to the parties.”

The Supreme Court however plainly communicated that exclusively utilize the power under Article 142 just in unique conditions, in typical conditions the arrangements of the statute must be offered impact to.

The law as clarified in the Sushreta Devi’s case still holds great that is the parties can pull back assent singularly. Be that as it may, the Supreme Court utilizing its energy as given under Article 142 of the Constitution can give divorce regardless of the possibility that the spouse or husband pulls back its ascent amid the procedures in the lower court and before the death of the pronouncement.

Whether mere silence at the second stage would tantamount to withdrawal?

In the event that the parties who have petitioned for divorce under mutual consent and after the finish of the half-year time frame what could possibly be done both of them don’t turn up. Will it add up to the withdrawal of assent?

Rajasthan High Court on account of Suman v. Surendra Kumar[17] has addressed these issues. For this situation, the spouse in the wake of documenting a joint assent petition for divorce did not show up for hearings. The family court held that no pronouncement could be passed without both parties.

In advance, it was held by the court that-“When one gathering has himself left the issue for derivation, the induction should be attracted the support of assent as opposed to for nonattendance of assent.” It was held that quiet can’t be taken to add up to the withdrawal of assent.

Conclusion

Through this paper, we have examined Section 13-B of the Hindu Marriages Act. Divorce by mutual consent gives a chance of genial determination of question amongst parties and spares time and cash.

The necessities as given under this Section are that before recording a joint petition for divorce parties must be living separately for a time of no less than one year. As we specified out, before living separately, does not really indicates physical division, what is basic is that parties are not satisfying conjugal commitments and not living as a couple.

The second prerequisite is that the parties have not possessed the capacity to live respectively. The way that both parties have documented a joint appeal by mutual consent is characteristic of the face that parties have not possessed the capacity to live respectively.

Just thing that is vital is that the assent has been gotten uninhibitedly and not by method for power, misrepresentation or undue impact as the entire reason for mutual consent will be vitiated if the assent is not free.

After parties have documented a joint appeal for divorce satisfying all the imperative conditions they are given a day and age of a half year and not over eighteen months after which they need to record a moment movement and courts subsequent to hearing the parties and investigating the averments in the petition of pass a declaration of divorce.

The three purposes of the dispute are that whether the holding up time of a half year is compulsory for the registry, the second is that can parties singularly pull back their assent, and third that whether quiet at the second stage would add up to the equivalent to withdrawal.

There have been differentiating judgments on the initial two issues. Distinctive high courts have received diverse measuring points in the elucidation of Section 13-B. Some High Courts have held that the holding up time of a half year is compulsory according to the Section while some High Courts have embraced the soul of law more than the specialized expressions of the section and have decided out that the period is catalog if there is zero chance of compromise between the parties.

Be that as it may, the Supreme Court utilizing its remarkable powers under Article 142 of the Constitution can pass the declaration of divorce without sitting tight for a time of a half year. Additionally, the Supreme Court on account of Sushreta Devi has decided out that the appeal of divorce can be pulled back singularly. On the third issue, the courts have decided out that hush of not showing up for hearings won’t add up to the withdrawal of assent.


[1] Kusum, Family Law Lectures (2nd, Lexis Nexis Butterworths wadhwa, Nagpur 2007) 161.

[2]The Hindu Marriage Act 1955 S. 13(B).

[3]Paras Diwan, Law of Marriage & Divorce (5th, Universal Law Publishing Co., New Delhi 2008) 525.

[4](1992) AIR SC 1904

[5]Id

[6]Paras Diwan, Law of Marriage & Divorce (5th, Universal Law Publishing Co., New Delhi 2008) 529

[7]Kusum, Family Law Lectures (3rd, Lexis Nexi Butterworths wadhwa, Nagpur 2002) 162

[8]AIR 1999 AP 91.

[9]AIR 2005 MP 106.

[10]AIR 2000 AP 364.

[11]AIR 1997 SC.

[12]AIR 1984 Bom 302.

[13]AIR 1986 P&H.

[14]AIR 1992 SC.

[15]Id.

[16]AIR 2009 SC.

[17]AIR 2003 Raj 155.