Supreme Court refuses to ban the release of Amir Khan starrer movie “PK”

An organization called ALL INDIA HUMAN RIGHTS AND SOCIAL JUSTICE FRONT filed a PIL vide Writ Petition (Crl) No. 155/2014 in the Supreme Court of India seeking a ban on the release of forthcoming Hindi movie ‘PK’ on the ground that the poster of this movie is vulgar and obscene in which the lead actor Amir Khan is shown naked and nude standing on railways track with his private part covered with a transistor held by him with his hand. The PIL sought action against the director and producers of the movie as well as against Amir Khan under the provisions of Indian Penal Code. /N

The bench of Supreme Court comprising the Chief Justice R.M.Lodha , Justice Kurian Joseph and Justice RF Nariman dismissed the PIL on 14th August 2014. The court was of the view that any restrictions on release of film would affect constitutional right of the film makers.

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Competition Commission of India order imposing penalty of Rs.630 crore on DLF upheld by COMPAT, Supreme Court admits DLF’s appeal subject to DLF depositing penalty amount

In 2011 (12th August 2011), on a petition by flat buyer associations of two DLF projects in Gurgaon — DLF Park Palace and The Belaire, the Competition Commission of India (CCI) found DLF abusing its dominant position and imposed a penalty of Rs.630 crore on DLF and asked it to modify apartment buyers’ agreement. DLF challenged CCI’s order in the Competition Appellate Tribunal (Compat) and got a stay order on the penalty. On 19th May 2014, Compat finally dismissed DLF’s appeal. DLF then filed appeal before Supreme Court which came up for hearing on 27th August 2014 before a bench of Justice Ranjana Desai and N.V.Ramana. The appeal numbers are Civil Appeal No.6328/2014, 6481/2014 and 6487/2014. The Court admitted DLF’s appeal subject to DLF depositing the penalty amount of Rs.630 crore within 3 months, out of which Rs.50 crore are to be deposited within three weeks. Experts feel that these orders will encourage more buyers to stand up against real estate developers in a market where delays in delivery, along with loopholes in buyer-developer agreements, are rampant. Click below to read the COMPAT’s order.

Compat order :  http://compat.nic.in/upload/PDFs/mayordersApp2014/19_05_14.pdf

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PIL in Supreme Court demanding blocking of adult porn sites and ban on child pornography

A Public Interest Litigation being Writ Petition (Civil) No. 177/2013 ‘Kamlesh Vaswani vs Union of India and others’ pending in the Supreme Court of India came up for hearing on 29th August 2014 before the Bench of Chief Justice R.M.Lodha, Justice Kurian Joseph and Justice R.F.Nariman. This petition demands ban on child pornography and blocking of adult porn sites in India. The petitioner has stated that crimes against women are fuelled by porn, and referred to the fatal gang-rape of a Delhi student on a moving bus in Delhi in December 2012.  The accused had allegedly watched porn on their cellphones before the horrific assault. The petition states that the sexual content that kids are accessing today is far more graphic, violent, brutal, deviant and destructive and has put entire society in danger and also poses threat to public order in India.

The Government told the Court that servers used to provide porn are located abroad, making it hard to exercise any degree of control over them, however a committee has been formed to deal with the problem. The Bench remarked that Law, technology and governance have to be synthesised to control pornographic materials on the Internet and adjourned the matter to 17th October 2014 to have an update from the Committee. 

Earlier, on 12.7.2013, the Court had observed that issue involved in this case is of great consequence, as far as the citizens, and, in particular, the children between the age groups of 14 to 18 are concerned. The Court hoped that all the parties, including the Union of India, will treat the matter with all seriousness and take positive steps to try and contain the menace. In January 2014, the Internet Service Providers (ISPs) told the Supreme Court that it is practically and technically impossible for them to block pornographic sites without orders from the court and government and they cannot be made liable for objectionable contents of the sites. On 21st April 2014, the Court directed The Secretary, Department of Telecommunication (DoT) to file his personal affidavit within one week on the issue whether the DoT or any other department of the Government of India is competent to issue direction to the respondent No.4 (ISPs) to call off sites showing pornography. The matter will now come up on 17th October 2014.

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Release all under-trial prisoners who are languishing in jails for years, rules Supreme Court of India

In a landmark decision on 5th September 2014, a bench of Supreme Court of India comprising  Chief Justice RM Lodha, Justice Kurian Joseph and Justice RF Nariman in a PIL titled as ‘Bhim Singh vs Union of India’  being Writ Petition (crl) No. 310 of 2005 passed important directions for the undertrial prisoners who are languishing in jails for years. The Court relied upon Section 436A of Code of Criminal Procedure which was introduced by amendment in 2005.  

The Court on 1st August 2014 wanted to know about Government of India's plan in fast-tracking criminal justice in the country. On that day, the Attorney General took time to have a comprehensive look at the problem and come out with a concrete proposal in this regard within four weeks. The Attorney General  on 5th September submitted that process of consultation with the State Governments for fast-tracking criminal justice has been commenced by the Central Government but the blueprint/road-map for fast-tracking of criminal cases shall take some time. The Court observed that it is high time, positive steps are taken by the Central Government in consultation with the State Governments in fast tracking all types of criminal cases so that criminal justice is delivered timely and expeditiously. The Attorney General informed Court that more than 50% of the prisoners in various jails are under-trial prisoners. Even many of them may have served maximum sentence prescribed under the law for the offences they have been charged with. He drew attention to fact that Parliament by Act 25 of 2005 amended Code of Criminal Procedure, 1973 by inserting Section 436A providing for maximum period for which an under-trial prisoner can be detained under any law not being an offence for which the punishment of death has been specified as one of the punishments.

The Court, accordingly, directed that jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge shall hold one sitting in a week in each jail/prison for two months commencing from 1st October, 2014 for the purposes of effective implementation of 436A of the Code of Criminal Procedure. In its sittings in jail, the above judicial officers shall identify the under-trial prisoners who have completed half period of the maximum period or maximum period of imprisonment provided for the said offence under the law and after complying with the procedure prescribed under Section 436A pass an appropriate order in jail itself for release of such under-trial prisoners who fulfill the requirement of Section 436A for their release immediately. Such jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge shall submit the report of each of such sitting to the Registrar General of the High Court and at the end of two months, the Registrar General of each High Court shall submit the report to the Secretary General of this Court without any delay. To facilitate the compliance of this order, the Court directed the Jail Superintendent of each jail/prison to provide all necessary facilities for holding the court sitting by the above judicial officers. The Supreme court also directed to send copy of this order to the Registrar General of each High Court, who in turn will communicate the copy of the order to all Sessions Judges within his State for necessary compliance. The case was adjourned to 8th December 2014.

In another PIL Writ Petition (Crl) No. 90/2013 titled as ‘Fight for Human Rights vs Union of India’, in the Supreme Court on 29th August 2014, the counsel for Government of India made a statement that Ministry of Home Affairs shall convene a meeting of Home Secretaries of the State Governments for   resolution    of   problem concerning under-trial prisoners, particularly, Scheduled Tribes under-trials (which is the subject matter of the said writ petition). The Court directed to submit the report within two weeks of convening the meeting. The Court also directed the Government to file an affidavit giving complete information of under-trial prisoners in the country as on 31st March, 2014.Matter will now come up on 31st October 2010.

Click below for Full text of the Order.

http://courtnic.nic.in/supremecourt/casestatus_new/querycheck_page2.asp

Supreme court allows limited review hearing for up to 30 min in open court to convicts awarded death sentence

A Constitution bench of Supreme Court of India by 4:1 majority ruled in Writ Petition (Criminal) No. 77 of 2014 on 2nd September 2014 that condemned prisoners should be given, as part of Article 21 of Constitution of India, limited oral hearing for max 30 min in open court to rule out any injustice. Hearing on Review application is otherwise generally held by judges in chamber. The court observed that "Death penalty is irreversible in nature. Once a death sentence is executed, that results in taking away the life of the convict. If it is found thereafter that such a sentence was not warranted, that would be of no use as the life of that person cannot be brought back."

The court however also held that years spent behind bars during prolonged judicial proceedings cannot be a ground for converting death sentence to life imprisonment. This judgment was pronounced by Supreme Court on 2 September 2014 on the petition of Mohd Ashfaq, in jail for 13 years, who petitioned the court to convert his death sentence to life imprisonment on the ground of delay on hearing in his matter.

Click below to read the Full text of the Judgment

http://supremecourtofindia.nic.in/outtoday/WR7711.pdf

NRI landlord can not be asked to prove his title to get the tenant evicted, rules Supreme Court

A bench of Justice TS Thakur and Justice C Nagappan of Supreme Court of India in the case of 'Kamaljit Singh vs Sarabjit Singh' Civil Appeal No. 8410 of 2014 held on 2nd September 2014 that Non-resident Indians (NRIs) cannot be asked to prove ownership of their property to get their tenants evicted. 

In the case in hand, an NRI who was born and brought up in India had migrated to UK but decided to return to India in 2002 after spending 30 years in the UK with the intention of settling down and establishing a hotel at Phagwara his home town in Punjab. He had let out a shop in a building situated at Banga Road, Phagwara. The tenant refused to vacate the shop. The NRI filed an eviction petition under Section 13-B of the East Punjab Urban Land Restriction Act, 1949, stating that he was an NRI and needed the shop for his own use and was hence entitled to get it vacated. The rent controller dismissed his eviction petition on the ground that the NRI failed to prove his ownership over the premises for a period of five years before the filing of the eviction petition as mandated under the law. On appeal by the NRI, the Punjab & Haryana High Court also ruled against the NRI. The NRI then appealed to Supreme Court which allowed the plea of the NRI. The Court held that Section 13-B of the said Act is a beneficial provision intended to provide a speedy remedy to NRIs who return to their native places and need property let out by them for their own requirement or the requirement of those who are living with and economically dependent upon them. Their position cannot, therefore, be worse off than what it would have been if they were not NRIs. Once the tenant admits relationship of landlord and tenant between him and the NRI, the NRI landlord was not under any obligation to prove his title to the property. The court directed the tenant to vacate the premises by March 31, 2015, subject to the condition that he clears his rent arrears in six weeks and submits an undertaking in court that he would clear out by that date and if he fails to abide by these, the eviction decree can be executed right away.

Read the Full Judgment.

Take concrete and expeditious steps to clean river Ganga, Supreme Court tells Government of India

The Supreme Court of India in a PIL ‘M.C.Mehta  vs Union of India and others’ Writ Petition (Civil) No.3727/1985 is inter-alia looking into the issue of pollution in holy river Ganga. The matter came up before a bench of Justice T.S.Thakur and Justice Mrs. R.Banumathi on 3rd September 2014. The Court was not satisfied by the affidavit sworn and filed by the Joint Secretary to the Government of India and Mission Director, National Mission for Clean Ganga (NMCG). The affidavit sets out the historical background in which the Ganga Action Plans were prepared, the National Ganga River Basin Authority (NGRBA) and different committees, directorates and authorities constituted under the National Ganga River Basin Authority. The affidavit also sets out the Externally Aided Projects (EAP) taken up in connection with the Mission with the help of World Bank and Japan International Cooperation Agency (JICA). It also sets out certain non-EAP plans currently being handled by the Authority and broadly identifies steps that the Government proposes to take in its endeavour to save the holy river from pollution resultant degeneration and possible extinction. The Supreme Court was of the view that apart from setting out the broad parameters of what the Government has in mind, the affidavit does not set out the stagewise developments that the Government aims to achieve in its mission to clean the river. The Solicitor General for the Government stated that he will file a supplementary affidavit in which the Government would detail the stages through which the projects relating to cleaning of Ganga would progress and the estimated time-frame within which such stagewise progress will be achieved. The Court granted three weeks to do so.  The petitioner requested that the supplementary affidavit may additionally set out further steps, if any, taken by the Government in relation to “ecological sensitive zones/areas” by the Government from Gangotri downstream to 135 Kms. of the river length. He submitted that a notification was issued on 18.12.2012 in this regard but no follow-up steps have been taken by the Government ever since. The court accepted the request and directed Government to address this aspect also in its supplementary affidavit. The matter was adjourned to 24th September, 2014.

Click here for the Full text of the Order dated 3rd September 2014.

PIL in Delhi High Court on Govt departments using email accounts on foreign servers and minors using social networking sites

The Delhi High Court, in a PIL,  is examining, among other things, the aspect of breach, if any, of provisions of Information Technology Act and of rules framed thereunder by internet sites like facebook and google by allowing persons below 18 years to enter into an agreement with these sites. It was pointed out by these sites that if it comes in the knowledge of any person that a child below the age of 13 years has opened such an account,  he may make a complaint to the social networking site who then take appropriate action, after verification, for deletion of that account. In this regard, Information Technology (Intermediaries Guidelines) Rules, 2011 have been notified under the IT Act. Rule 3 requires due diligence to be observed by the intermediary. The social  networking sites such as Facebook and Orkut fall within the definition of “Intermediary” as per Rule 2(i) of the said Rules read with Section 2(1)(w) of the Information Technology Act, 2000. Therefore, the provisions of Rule 3 of the said Rules applies to them. It was informed that in accordance with Rule 3(1), both Facebook and Orkut have published the Rules and Regulations as also the privacy policy and user agreements for access and usage of their computer resource. Rule 3(2) contains certain other directions as to what should be the content of the Rules and Regulations, terms and conditions and the user agreements. Under Rule 3(4), the intermediary can take action for disabling any such information as mentioned in rule 3(2), both on a complaint in writing from affected persons as well as on obtaining knowledge by itself. By virtue of a subsequent clarificatory notification, it has been clarified that the intermediary shall respond to or acknowledge the complainant within thirty six hours and the same shall be redressed promptly but in any case within 30 days. 

The court vide its order dated 23rd August 2013 directed, after being pointed out Rule 3(11), that intermediaries, including the social networking sites such as Facebook and Orkut, should immediately publish the names of the respective Grievance Officers on their websites alongwith contact numbers as well as the mechanism by which any user or any victim who suffers as a result of access or usage of computer resource by any person in violation of rule 3, can notify their complaints against such access or usage. This order was complied with by these websites, as recorded by the court in its order dated 23rd September 2013 and 30th October 2013.

The court in the said PIL is also looking into the issue of Government departments and officers using email accounts of service providers having servers located outside India and whether this violates provision of Public Records Act, 1993. It was informed to the court by the Government of India that the Government is on the verge of finalizing an E-mail Policy and Govt would ensure that there is complete conformity between E-mail Policy and the said Act with regard to public records.

The PIL will now come up on 26th September 2014. It was filed by shri K.N.Govindacharya and its case no. is Writ Petition (civil) No.3672/2012.

Complaint under Section 138 NI Act for cheque dishonor can be filed only at place where the account from which the cheque is issued and dishonored is located

In a landmark decision which is going to have very wide ramifications in the cheque dishonor cases throughout India, a 3-Judge Bench of the Hon'ble Supreme Court of India on 1st August 2014 in the case titled as 'Dashrath Rupsingh Rathod vs State of Maharashtra' held that a complaint case under Section 138 of Negotiable Instruments Act for dishonor of cheque can be filed only in the court at the place where the bank branch in which the accused has his account and from which account the cheque was issued and dishonored, is located. This is departure from the earlier judicial dispensation whereunder the complainant could file case at any of the several places like the place where the cheque was deposited by the complainant. The latest judgment on territorial jurisidiction of criminal court in a case under Section 138 has taken into account the harassment faced by the people who are impleaded as accused in complaint cases filed under Section 138 at places far away from the accused's place. The court also took note of the fact that Section 138 of the NI Act is being rampantly misused so far as territorial jurisdiction for trial of the complaint is concerned.

The Court further clarified that all pending complaint cases under Section 138 where the case is still at early stage and recording of evidence under Section 145(2) of the NI Act after appearance of accused has not yet started, will be returned by the concerned magistrate's courts for the complainant to file the same in proper court within 30 days from the date of return of complaint. 

This judgment is going to affect lakhs of cases and is likely to set a milestone in criminal jurisprudence as far as the law relating to cheque dishonor is concerned. 

Read the Full Judgment.

Patients have right to take their medical records under RTI from Hospitals, rules CIC

The Central Information Commission (CIC) in a far reaching judgment, delivered a detailed judgment on 24^th July 2014 holding that a person has right to take copy of his or her medical records from the hospital., whether Govt or private hospitals, under RTI Act. The Commission referred to various judgments and constitutional provisions as also medical ethics in support of its judgment.

This judgment was delivered in the case of Ms. Nisha Priya Bhatia vs Institute of Human Behaviour & Allied Sciences, Govt of NCT of Delhi on 24^th July 2014.

Read the Full Judgment. 

Sunil Goel advocate B.Sc. L.Lb L.Lm