Difference Between a Contractual Tenant and a Statutory Tenant

(By P.B.Menon, Advocate, Palakkad)

Is there not a difference between a “contractual tenant and a statutory tenant” of a building under law, I am prompted to write this article after reading the judgment of a Division Bench reported in 2021 (3) KLT 67. It is seen that the expression used throughout the reported judgment is “statutory tenant”. The facts of the case as reported therein are to the effect that the landlord therein leased out a building to the tenant for a period of 11 months, but the application for eviction was filed within 3 months of granting such lease on the ground of bona fide need of the landlord. The learned Judges hold that it is affected by S.11(9) of Act 2/65 in the following sentence “Thus the legal position that emerges from all that has been discussed by as above is that petition for eviction of a statutory tenant brought prior to the expiration of the term of lease is hit by Section 11(9) of the Act and is not maintainable before a Rent Control Court”.

Really was the tenant in that case a contractual tenant or a statutory tenant. True, 
I believe, that both categories of tenants get protection under the provisions of the Act 2/65. But is there not a difference between contractual tenant and a statutory tenant before a Rent Control Court under law.

A contractual tenant is one who holds the building under a landlord under a lease deed/rent deed for the period specified therein under such tenancy. Till the expiry of the period of tenancy stated therein he is a contractual tenant.

On expiration of the period of tenancy if he continues in possession and the landlord accepts rent and recognize him to continue, he is called ‘a tenant holding over’ and if the landlord does not recognize his continuation in possession, he is called ‘a tenant at sufferance’. Under law his possession is akin to that of a trespasser.

In case the original tenant dies, his legal heirs and not legal representatives or legatees, who holds possession of such building continues as tenant of that building.

Such legal heirs of original tenant, a tenant holding over and a tenant at sufferance are all recognized by virtue of the difference of tenant u/S.2(6) of Act 2/65 and they are the real statutory tenants. Definition of tenant shows, such persons are also included. See 2001 (2) RCR 492 (Kerala), 1991 (2) KLT 598, 1999 (1) RCR 636 (Andhra Pradesh), 1971 KLT 571 and AIR 1972 SC 819.

The difference between contractual tenant and statutory tenant is explicit in one instance under the Rent Control Act, Act 2/65. Section 11(17) application for eviction on the ground of bona fide need. Protection is given only to a contractual tenant and not a statutory tenant.

See 2003(2) KLT 317; ILR 2005 (2) Ker.373.

The only probable instance when a contractual tenant becomes later a statutory tenant in cases where the application for eviction is dismissed against him, by virtue of S.11(15) of Act 2/65.

Incidentally in this connection it may be noted that as regards such building leases, no leasehold estate is created in favour of the tenant. There is no right or title which is marketable with such tenants. No estate passes to his legal heirs on his death, but for the purpose of the Rent Control Act.

To my knowledge there is one ruling of our High Court reported in 1982 KLT 83, which holds that “statutory tenant means it is the status of a tenant who continues to be in possession of a building during the pendency of the Rent Control Petition”. It is difficult to accept such a proposition as a general rule, as both contractual tenants and statutory tenants figure as respondents in Rent Control Petitions.

Equally so another decision of the Apex Court reported in AIR 1976 SC 2229 which holds that “a contractual tenant has an estate or property in the subject matter of tenancy and heritability is an incident of the tenancy”. This is true in the case of a lease of immovable property under the TP Act but cannot apply to a building lease, wherein the relationship is really that of landlord and tenant.

Regarding these matters, if there are other views apart from what I have expressed above, is welcome and will be appreciated.

Whether an Appeal will Lie u/Section 18(b) Against an Order u/Section 12(3)

by a Rent Control Court of Kerala Act 2/65

(By P.B.Menon, Advocate, Palakkad)

Reported cases are too many and hence not referred to hereunder in this Article, which are either disposed of u/S.18(b) or under Art.227.

What is the correct legal position?

If we analyse S.12(1) it is crystal clear that what the tenant is obliged to deposit is “all arrears of rent admitted by the tenant to be due in respect of the building upto the date of payment or deposit and continues to pay or to deposit which may subsequently due in respect of the building until the termination of the proceedings etc”.

As regards the first part of the Section, relating to admitted arrears of rent, it is what the tenant admits upto the date of deposit or payment and as such no enquiry is contemplated as to whether such deposit is correct or not. As regards the latter part what is due is contract rent or if disputed what the tenant pleads according to him is the rent payable after the date of payment or deposit of admitted arrears of rent under the first part.

If the admitted arrears of rent due upto the date of deposit or payment during the statutory period of 4 weeks or the extended period; is not deposited or subsequent rent is not deposited within the statutory period of 2 weeks or extended period, the court is bound to pass an order u/S.12(3) after giving the tenant an opportunity to show sufficient cause for not depositing the rent.

So in both stages of payment or deposit 1) admitted arrears of rent due and 2) subsequent rent, there is absolutely no enquiry is contemplated. Rent Control Court in passing the order u/S.12(1) do not decide judicially anything. It just follows the procedure laid down u/S.12(1) andpasses an order first u/S.12(2) and then if necessary u/S.12(3). It is not just like posting the matter for written statement or for steps on death of a party just following the procedure under C.P.C. Extension of period which is discretionary may be a judicial order. When there is no enquiry judicial decision by the Rent Control Court or the only thing that has to be tested is as to whether such order is illegal or irregular in not allowing statutory period for payment or deposit or other connected matters how could an appeal lie against such order. But such mistakes or errors have to be rectified by the Hon’ble High Court by exercising its superintendence power under Art.227 and not by an appeal u/S.18(b) as such orders passed is irregular or illegal. If we go through various decision on this head, we will find that both provisions are made use of by concerned counsel and the court concerned dispose the matter without deciding as to what is the proper remedy i.e. an appeal u/S.18(b) or under Art.227. To my knowledge there is only one reported case wherein that no appeal will lie is decided - See 1994 (2) KLT 419. As regards review u/S.20, it is available only against the orders of the appellate authority before the Hon’ble High Court.

Hence anauthoritative pronouncement will be welcome by the Hon’ble High Court or Apex Court regarding the procedure to be adopted against such orders u/S.12(3) by the Rent Control Court and 2) at which stage 1) When order is passed u/S.12(2) to make a deposit and 2) When order is passed u/S.2(3).

CONTOURS OF POWER UNDER ARTICLE 226 & 227 OF THE CONSTITUTION VIS-À-VIS QUASHING CIVIL JUDICIAL ORDERS

SHRIKRISHNA DAGLIYA SENIOR CIVIL JUDGE TARANA, UJJAIN (M.P.)

 

PROLOGUE

Article 226 and 227 of the Constitution of India contain different sets of powers conferred on the High Courts of India. Article 226 contains the power of the High Courts to issue writs and other directions for the enforcement of fundamental rights. These writs and directions can be issued for other purposes also, unlike Article 32 of the Constitution. Article 227 contains the power of superintendence which the High Court exercises over Courts and Tribunals within its jurisdiction. This article focusses on the contours of the power of the High Courts under Article 226 and 227 to quash civil judicial orders including judgments passed by the Civil Courts.

INTEREST REPUBLICAE UT SIT FINIS LITIUM

It is in the interest of the State that there shall be an end to litigation. If there is not put an end to litigation at some point, then there is bound to be chaos. It is in this backdrop that the Legislature provides only limited remedies against an adjudication of a dispute. The final judgment, and the orders passed during the course of the determination of the lis receive varied treatments. The final judgment in a civil case is almost always open to a first appeal in the light of the provisions of section 96 read with order 41 of the Code of Civil Procedure (hereinafter referred to as the 'Code'), obviously except when an appeal is expressly barred. There may also be a second appeal if there is any substantial question of law involved. Orders passed by a Civil Court, on the other hand, stand on a different footing. Some orders are per se expressly made appealable in the light of the provisions of section 104 read with order 43 of the Code whereas the others are not so made per se appealable. Even the non-appealable orders can be assailed while preferring an appeal from the decree, in the light of the provisions of order 43 rule 1A of the Code. There is no provision for a second appeal against orders. Against those judgments and orders, with respect to which no right of appeal is conferred, they may be assailed in revision, on the limited grounds on which a revision is permitted by the Code. Similarly, review on very limited grounds, is another remedy conferred by the Legislature. There may be an appeal to the Supreme Court on a certificate issued by the High Court. Even without a certificate, a party aggrieved, from any order or judgment of the Civil Court, can apply for special leave to appeal to the Supreme Court and on the grant of such leave the matter is treated and disposed of as an appeal.

So there is a set of remedies available against the orders and judgments passed by a Civil Court. The idea is that against an adjudication the remedies available are reduced, as one moves up the ladder in the hierarchy of the Courts, with a view to bring an end to litigation. At the outset, keeping in mind the above backdrop, it would be apposite to clarify that remedy under Article 226 and under Article 227 of the Constitution of India are not in the nature of any appeal in disguise. These are extraordinary remedies, meant for specific purposes, which are to be sparingly used. These are not meant to be used in a routine manner just as any other general remedy.

DIFFERENCE BETWEEN ARTICLE 226 & 227

Articles 226 and 227 stand on substantially different footing. After the advent of the Constitution, every High Court has been conferred with the power to issue writs under Article 226 and these are original proceeding. The jurisdiction under Article 227 on the other hand is not original nor is it appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct, and they operate in different fields. Another distinction between these two jurisdictions is that under Article 226, the High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. The jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. The jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. From an order of a Single Judge passed under Article 226, a letters patent appeal or an intra-court appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227.

WRIT OF CERTIORARI

The writ of certiorari is a command by a superior Court calling for the record of an inferior body to satisfy itself of the order passed by such later body and quashing the decision of such body when found to be not as per certain parameters. The origin of this writ dates back to the 18thcentury when it used to be issued by the Kings' Bench in England. In India, initially the three Supreme Courts exercised the power to issue this writ and then the three chartered High Courts got the power to issue this writ by virtue of the High Courts Act of 1861 and the respective letters patents. The High Courts established, after the chartered High Courts, were empowered to issue directions as per their respective letters patent. Then after the advent of the Constitution, by virtue of Article 225, the powers that were being enjoyed by the High Courts prior to the coming in force of the Constitution were saved; and the then existing High Courts as well as other High Courts which were to be later established were empowered by Article 226 to issue this writ.

NO REMEDY UNDER ARTICLE 226 OF THE CONSTITUTION

Against an order passed by a Civil Court, a writ of certiorari is not available. Earlier, the Supreme Court in Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 had held that even against an order of a Civil Court, a writ of certiorari could be issued but later the law on this particular point was overruled by a larger Division Bench of the Supreme Court in the case titled Radhey Shyam vs. Chhabi Nath, (2015) 5 SCC 423 wherein it was held that judicial orders of Civil Courts are not amenable to the writ jurisdiction under Article 226 of the Constitution.

THE HISTORY OF THE POWER OF SUPERINTENDENCE

The High Courts' power of superintendence under Article 227 of the Constitution has its origin as early as in the Indian High Courts Act of 1861. This concept of superintendence has been borrowed from English Law. The power of superintendence owes its origin to the supervisory jurisdiction of the King's Bench in England. In the Presidency towns of the then Calcutta, Bombay, Madras, initially, Supreme Courts were established. Those Courts were endowed with the power of superintendence, similar to the powers of the King's Bench under the English Law. Then the Indian High Courts in three Presidency towns were endowed with similar jurisdiction of superintendence. Such power was conferred on them under Section 15 of the Indian High Courts Act, 1861. The material part of Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915, except that the power of superintendence has been extended by the Article also to Tribunals. Section 107 of the Government of India Act, 1915, was reproduced in the Government of India Act, 1935, as Section 224. Section 224 of the 1935 Act, however, introduced sub-section (2), which was new, providing that nothing in the section should be construed as giving the High Court any jurisdiction to question any judgment of any inferior court which was not otherwise subject to appeal or revision. Section 224 of the 1935 Act has been reproduced with certain modifications in Article 227 of the Constitution. It is significant to note that sub-section (2) to Section 224 of the 1935 Act has been omitted from Article 227. This significant omission is regarded as having restored to the High Courts the power of judicial superintendence which it had under Section 15 of the High Courts Act, 1861, and Section 107 of the Government of India Act, 1915.

NATURE AND OBJECT OF POWER UNDER ARTICLE 227

The power of superintendence conferred by Article 227 is supervisory and not appellate. ^[1]The superintending power of the High Courts under Article 227 is to keep courts and tribunals within the bounds of the law^[2] and not for correcting mere errors.^[3] The Supreme Court in L. Chandra Kumar's^[4] case has held that jurisdiction conferred upon the High Courts under Article 227 of the Constitution is a part of the inviolable basic structure of our Constitution.

Some statutes expressly or by necessary implication oust the jurisdiction of Civil Courts in respect of certain matters but such exclusion cannot affect the extraordinary powers of superior courts conferred under Arts. 227 of the Constitution.^[5] The High Court in the exercise of its supervisory jurisdiction under Article 227 cannot only annul the decision of the Tribunal but can also issue further direction in the matter.^[6] But the judgment in L. Chandra (supra) cannot be construed to enlarge the jurisdiction of the High Court under Article 227, to enable it to exercise appellate powers. Jurisdiction under Article 227 cannot be exercised “in the cloak of an appeal in disguise”. The High Court does not (under this power) re-assess or re-analyze the evidence and/or materials on record. This jurisdiction of the High Court cannot be converted into an alternative appellate forum, just because there is no other provision of appeal in the eye of law.^[7] The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein^[8].

The main object of this Article (227) is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute.^[9]

REMEDY UNDER ARTICLE 227 CANNOT BE CLAIMED EX DEBITO JUSTITIAE

The provision of Article 227 is not, ex facie, meant to be a remedy to any person. It provides for the power of superintendence which the High Courts have over Courts and Tribunals functioning under its jurisdiction. Remedy which a party gets is only incidental to the exercise of the power of superintendence. This power is meant to be exercised suo moto but it can also be exercised on an application by a party. But the exercise of power and the incidental grant of remedy under 227 of the Constitution cannot be claimed as a matter of right by any party.

"No doubt Article 227 confers a right of superintendence over all courts and tribunals throughout the territories in relation to which it exercises the jurisdiction but no corresponding right is conferred upon a litigant to invoke the jurisdiction under the said article as a matter of right. In fact power under this article casts a duty upon the High Court to keep the inferior courts and tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such courts and tribunals in accordance with law conferring powers within the ambit of the enactments creating such courts and tribunals."^[10]

REMEDY UNDER ARTICLE 227 NOT BY WAY OF A WRIT

Now, writs can be issued by the High Courts only under Article 226 of the Constitution and by the Supreme Court only under Article 32 of the Constitution. No writ petition can be moved under Article 227 of the Constitution nor can a writ be issued under Article 227 of the Constitution.

Therefore, a petition filed under Article 227 of the Constitution cannot be called a writ petition. This is clearly the constitutional position. No rule of any High Court can amend or alter this clear constitutional scheme.^[11]

CONTOURS OF THE POWER OF SUPERINTENDENCE

There are various judgments of the Apex Court which have laid down the scope of the power under Article 227 of the Constitution. There are also subsequent judgments of various Courts which have the effect of either restricting or enhancing the scope of the power exercised by the High Courts under Article 227 of the Constitution. While analyzing these judgments, we must keep in mind the basic principles of the law relating to the precedential value of judgments, as laid down by the Constitution Bench of the Supreme Court in Central Board Of Dawoodi Bohra vs. State Of Maharashtra & Anr AIR 2005 SC 752:-

"(1) The law laid down by this Court (Supreme Court) in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing

before a Bench of larger quorum than the Bench whose decision has come up for

consideration."

In Subhash Chandra and Another vs. Delhi Subordinate Services Selection Board & Anr. (2009) 15 SCC 458, it was held by the Supreme Court as follows:-

"It is now a well settled principle of law that a division bench, in case of conflict between a decision of a Division Bench of two Judges and a decision of a larger Bench and in particular Constitution Bench, would be bound by the latter ..... It is also well known that a decision rendered in ignorance of a binding precedent and/or in ignorance of a constitutional provision, would be held to have been rendered per incuriam."

The contours of the power under Article 227 are broadly laid down by the following Constitution Benches of the Supreme Court in the following words:-

1. Unless there is any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Article 227 of the Constitution to interfere. (D.N. Banerjee v. P.R. Mukherjee- 1953 SCR 302- 5 Judges- Date of Judgment- 05-12-1952)

2. This power of superintendence conferred by Article 227 is to be exercised most sparinglyand only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.(Waryam Singh v. Amarnath- 1954 SCR 565- 5 Judges- Date of Judgment- 19-01-1954)

3. Interference is justified only when the High Court records a finding that the inferior Tribunal's conclusion is based upon exclusion of some admissible evidence or consideration of some inadmissible evidence or the inferior Tribunal has no jurisdiction at all or that the finding is such, which no reasonable man could arrive at, on the materials on record. (State of Maharashtra vs. Milind- (2001) 1 SCC 4- 5 Judges- Date of Judgment- 28.11.2000)

4. Errors of law that are apparent on the face of the record can be corrected.(Madras Bar Assn. vs. Union of India- (2014) 10 SCC 1- 5 Judges- Date of Judgment- 25-09-2014)

5. The power of judicial superintendence must be exercised sparingly, to keep subordinate courts and tribunals within the limits of their authority. When a Tribunal has acted within its jurisdiction, the High Court does not interfere in exercise of its extraordinary writ jurisdiction unless there is grave miscarriage of justice or flagrant violation of law. Jurisdiction underArticle 227 cannot be exercised “in the cloak of an appeal in disguise”. In exercise of its extraordinary power of superintendence and/or judicial review under Article 227 of theConstitution of India, the High Courts restrict interference to cases of patent error of law which go to the root of the decision; perversity; arbitrariness and/or unreasonableness; violation of principles of natural justice, lack of jurisdiction and usurpation of powers. (Rajendra Diwan vs. Pradeep Kumar Ranibala and Another-2019 SCC OnLine SC 1586- 5 Judges- Date of Judgment- 10-12-19)

Hereinbelow is what the Supreme Court has laid down in Benches other than the Constitution Benches:-

6. The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.[Laxmikant Revchand Bhojwani vs. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576]

7. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset conclusions of facts however erroneous those may be (India Pipe Fitting Co. v. Fakruddin M.A. Baker, (1977) 4 SCC 587). The High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate court or tribunal. Its function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and reappreciating it.(Bathutmal Raichand Oswal v. Laxmibai R. Tarta, (1975) 1 SCC 858)

8. If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the Legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts. (Bathutmal Raichand Oswal vs. Laxmibai R. Tarta, (1975) 1 SCC 858)

9. It is well settled that the High Court under Article 227 of the Constitution of India has jurisdiction to correct the error if apparent on the face of the record.(Kalpesh Hemantbhai Shah v. Manhar Auto Stores, (2014) 15 SCC 711)

10. Law is well settled by various decisions of this Court (Supreme Court) that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice. As regards finding of fact of the inferior court, the High Court should not quash the judgment of the subordinate court merely on the ground that its finding of fact was erroneous but it will be open to the High Court in exercise of the powers under Article 227 to interfere with the finding of fact if the subordinate court came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse. If the evidence on record in respect of a question of fact is not at all taken into consideration and without reference to such evidence, the finding of fact is arrived at by inferior court or tribunal, such finding must be held to be perverse and lacking in factual basis. In such circumstances, in exercise of the jurisdiction under Article 227, the High Court will be competent to quash such perverse finding of fact.(Achutananda Baidya v. Prafullya Kumar Gayen, (1997) 5 SCC 76). A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.[Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675]

11. Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.[Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675]

12. Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.[Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675]

13. The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. [Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675]

14. In order to safeguard against a mere appellate or revisional jurisdiction being exercised in the garb of exercise of supervisory jurisdiction under Article 227 of the Constitution, the courts have devised self-imposed rules of discipline on their power. Supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. The High Court may have regard to legislative policy formulated on experience and expressed by enactments where the legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to be kept away from exercise of appellate and revisional jurisdiction in the hope of accelerating the conclusion of the proceedings and avoiding delay and procrastination which is occasioned by subjecting every order at every stage of proceedings to judicial review by way of appeal or revision. So long as an error is capable of being corrected by a superior court in exercise of appellate or revisional jurisdiction, though available to be exercised only at the conclusion of the proceedings, it would be sound exercise of discretion on the part of the High Court to refuse to exercise the power of superintendence during the pendency of the proceedings. However, there may be cases where but for invoking the supervisory jurisdiction, the jurisdictional error committed by the inferior court or tribunal would be incapable of being remedied once the proceedings have concluded.[Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675]

15. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil-MANU/SC/0508/2010)

16. Where the statute bans the exercise of revisional powers, it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”.(State v. Navjot Sandhu, (2003) 6 SCC 641)

17. The power of judicial superintendence under Article 227 could only be exercised sparingly, to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Where the statute banned the exercise of revisional powers by the High Court, it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution since the power of superintendence was not meant to circumvent statutory law. (Jagir Singh vs. Ranbir Singh (1979) 1 SCC 560)

18. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution....Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. (Radhey Shyam vs. Chhabi Nath (2015) 5 SCC 423)

19. Despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected. It has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. (Radhey Shyam vs. Chhabi Nath (2015) 5 SCC 423)

20. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. (Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil-MANU/SC/0508/2010)

21. This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfetteredbut its exercise is subject to high degree of judicial discipline pointed out above. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. (Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil-MANU/SC/0508/2010)

22. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. (State v. Navjot Sandhu, (2003) 6 SCC 641)

23. Only wrong decisions may not be a ground for the exercise of jurisdiction under this Article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party.(Ouseph Mathai v. M. Abdul Khadir, (2002) 1 SCC 319)

24. A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227.(Mohd. Yunus v. Mohd. Mustaqim, (1983) 4 SCC 566)

25. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited “to seeing that an inferior court or tribunal functions within the limits of its authority”, and not to correct an error apparent on the face of the record, much less an error of law.(Mohd. Yunus v. Mohd. Mustaqim, (1983) 4 SCC 566)

26. In exercising the supervisory power under Article 227, the High Court does not act as an appellate court or tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision. (Mohd. Yunus v. Mohd. Mustaqim, (1983) 4 SCC 566)

27. It can not be exercised like a “bull in a china shop”, to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.(Jai Singh v. MCD, (2010) 9 SCC 385)

28. The High Court cannot lightly or liberally act as an appellate court and reappreciate the evidence. Generally, it can not substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi-judicial tribunals. The power to reappreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice.(Jai Singh v. MCD, (2010) 9 SCC 385)

29. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.(Estralla Rubber vs. Dass Estate (P) Ltd. (2001) 8 SCC 97)

30. It is also well established that it is only when an order of a Tribunal is violative of the fundamental basic principles of justice and fair play or a patent or flagrant error in procedure or law has crept in or where the order passed results in manifest injustice, that a court can justifiably intervene under Article 227 of the Constitution.(Trimbak Gangadhar Telang vs. Ramchandra Ganesh Bhide (1977) 2 SCC 437)

APROPOS THE SUBORDINATE JUDICIARY

31. However, such power of superintendence does not imply that the High Courts can influence the subordinate judiciary to pass any order or judgment in a particular manner. The extraordinary power under Article 227 can only be used by the High Courts to ensure that the subordinate courts function within the limits of their authority. The High Court cannot interfere with the judicial functions of a Subordinate Judge.(Jasbir Singh v. State of Punjab, (2006) 8 SCC 294)

32. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions. (Jasbir Singh v. State of Punjab, (2006) 8 SCC 294)

33. Except giving general directions regarding any matter concerning administration of justice, any interference in the judicial functions of the presiding officer would amount to interference with the independence of the subordinate judiciary. (Jasbir Singh v. State of Punjab, (2006) 8 SCC 294)

EPILOGUE

There are various remedies available against a civil order or a civil judgment passed by a judicial Court. These remedies must be first availed before resorting to remedy under Article 227 of the Constitution. It is crystal clear that High Courts have no power to interfere with the orders passed by a Civil Court under Article 226 of the Constitution. An order passed by a Civil Court can only be assailed under Article 227 of the Constitution of India and that too, on the parameters of challenge which have been clearly laid down by the Supreme Court in a series of decisions. Under the power conferred by Article 227 of the Constitution, the High Courts can not only annul the impugned order, but can also issue appropriate directions and sometimes even substitute its own views in the place of the impugned order. The touchstone of measuring the contours of such power are the Constitution Bench judgments in D.N. Banerjee vs. P.R. Mukherjee, 1953 SCR 302 and Waryam Singh vs. Amarnath, 1954 SCR 565, which still hold the field and have not been departed from by any larger bench of the Supreme Court. It is not that the High Courts should never use their power under Article 227 of the Constitution. It is just that this extraordinary power should be used most sparingly and only when it is permitted, as per the law laid down, by judicial pronouncements of the Supreme Court. Non-exercise of such power, in a deserving case, may even lead to injustice.

 

Foot Notes

[1] Rajendra Diwan vs. Pradeep Kumar Ranibala and Another 2019 SCC OnLine SC 1586 ( 5 judge) 10-12-19

[2] Madras Bar Assn. v. Union of India, (2014) 10 SCC 1 25-09-2014,

     Nagendra Nath Bora v. Commr. of Hills Division and Appeals, 1958 SCR 1240 ( 5 judge) 07-2-58,

     State of Gujarat v. Vakhatsinghji Vajesinghji, (1968) 3 SCR 692 ( 5 judge) 08.04.68

[3] Waryam Singh v. Amarnath, 1954 SCR 565 ( 5 judge) 19-1-54

[4] L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 (7 judge) 08-03-97

[5] Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621 ( 7 judge) 10-4-62

[6] Hari Vishnu Kamath vs. Syed Ahmed Ishaque (1955) 1 SCR 1104 ( 7 judge) 09.12.54

[7] Rajendra Diwan vs. Pradeep Kumar Ranibala and Another 2019 SCC OnLine SC 1586 ( 5 judge) 10-12-19

[8] Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675]

[9] Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil-MANU/SC/0508/2010

[10] Ouseph Mathai v. M. Abdul Khadir, (2002) 1 SCC 319

[11] Shalini Shyam Shetty v. Rajendra Shankar Patil (2010) 3 SCC (Civ) 338

The Divya Pharmacy Judgment:
An Analysis in the Backdrop of the CBD and the Nagoya Protocol

(By Dr. Raju Narayana Swamy, IAS)

ABSTRACT

The access to biological resources located within India is governed by the Biological Diversity Act, its Rules and Regulations, that were enacted in furtherance of the Convention on Biological Diversity (CBD) and the Nagoya Protocol. One important aspect under them is fair and equitable ‘benefit-sharing’. Under this, certain users of biological resources are required to share certain parts of the benefits accruing to them from such use with the local communities that preserve those resources and impart their traditional knowledge relating to those resources. This article argues that the current benefit-sharing regime in India is problematic on various fronts. A recent judicial pronouncement has further aggravated those concerns. Luckily, the CBD/Nagoya Protocol do not envision a singular model for benefit-sharing leave that for the member countries to decide. Therefore, this article proposes an alternative two-step ad-valorem royalty model that should be explored which addresses various problems prevalent in the current regime. The specifics of the same can be worked out, but the focus of this article is to present the problems prevalent in the system and initiate a discussion towards rebranding India’s benefit-sharing regime towards more certainty, transparency, and fairness, towards which the proposed model can be a concrete step.

Table of Contents

I.    INTRODUCTION

II.   INTERNATIONAL FRAMEWORK ON ‘ACCESS AND BENEFIT SHARING’

III.  LEGAL FRAMEWORK OF BENEFIT-SHARING IN INDIA

A.  THE  REGULATIONS  AND  THE  EMPOWERMENT  OF  SBBS  QUA BENEFIT-SHARING

IV.  PROBLEMS IN THE CURRENT ABS REGIME – BUREAUCRATIZATION, DELAYS, ETC.

A.   FIRSTLY, THERE IS NO SAY OF THE USERS IN DETERMINATION OF ABS TERMS

B.   SECONDLY, LONG DELAYS IN THE ABS PROCEDURE

C.  THIRDLY, THE MANNER OF CALCULATION OF ABS AMOUNT IS PROBLEMATIC

V.  DIVYA PHARMACY V. UNION OF INDIA - JUDICIAL MISINTERPRETATION AND ITS
RAMIFICATIONS                                                    

  A. JUDICIAL MISINTERPRETATION                     

  B.  RAMIFICATIONS

VI.  AN ALTERNATIVE MODEL FOR BENEFIT-SHARING PAYMENTS

A.   A TWO-STEP PROCESS FOR DISCHARGING ABS OBLIGATION

1.   ADDRESSING THE CONCERNS OF THE PRESENT REGIME

B.   ABS AS AN AD VALOREM ROYALTY/TAXATION

VII.CONCLUSION

I. INTRODUCTION

If conservation of natural resources goes wrong, nothing else will go right.

                                                                                      -- M.S.Swaminathan

Both, internationally as well as domestically, the above statement is acknowledged in various forms. Furthermore, on both the levels, specific legal frameworks are in place to ensure the conservation of natural resources and their sustainable use. One of the ways in which the law seeks to achieve the same is by levying the obligations upon certain users of the genetic/biological resources to share fair and equitable benefits they reap by utilising those resources with the local communities that preserve those resources. This benefit-sharing framework, internationally formulated for the first time around 1992-93, has undergone changes/additions/improvements from time to time, both internationally and domestically. In fact, recently, the United Nations Convention on Biological Diversity (‘CBD’) Secretariat has released its first official draft on a new Global Biodiversity Framework to align actions across the global through 2030 for the preservation and protection of the nature and its essential services to people. One (out of four) goal of the draft framework is to ensure that the benefits from the utilisation of genetic resources are shared fairly and equitably, with a substantial increase in both monetary and non-monetary benefits shared, including for the conservation and sustainable use of biodiversity.

In India, the benefit-sharing framework is well-defined. However, there are various problems that exist in the present regime. Furthermore, certain recent legal development has further added to the existing concerns. Therefore, this article seeks to explore the benefit-sharing framework in India, highlight the existing problems, and then propose an alternative model that can be considered in place of the current model. For that, this article has been divided into six parts subsequent to the ‘Introduction’.

In Part II, this article lays down the international backdrop against which India’s benefit-sharing regime was introduced. Thereafter, in Part III, it discusses the broad legal framework and the peculiar provisions in the Indian law regarding benefit-sharing. Part III ends on the argument that certain aspects of benefit-sharing in India, as introduced by a subordinate legislation, do not have a legal validity under the parent statute. Then in Part IV,
the article discusses how a recent judicial pronouncement has in fact, endorsed the said erroneous practice vis-à-vis benefit-sharing. Thereafter, in Part V, it highlights some other problems that exist in the current benefit-sharing regime that have been aggravated by the said judicial pronouncement. Part V ends on a note regarding the need to introduce an alternative model in the benefit-sharing regime in India. Then, in Part VI, it proposes two prongs of the alternative model and discusses how they respectively address the issues that exist in the current benefit-sharing regime. In the concluding Part VII, it ties the discussion together on the future course of action that can be taken vis-à-vis the proposed model.

II. INTERNATIONAL FRAMEWORK ON ‘BENEFIT-SHARING’

The CBD, signed at Rio de Janeiro in 1992-93, with 196 party countries today, is so far the most accepted international arrangement for conservation and sustainable utilization of biological resources (‘bio-resources’) and sharing of the benefits arising out of such use. India became a party to the CBD on 19 May 1994. It then enacted the Biological Diversity Act 2002 (‘Act’) and the Biological Diversity Rules 2004 (‘Rules’). The Act has adopted the three objectives of the CBD verbatim, i.e.,conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits arising out of the use of bio-resources, knowledge.

The third objective of the CBD, i.e., fair and equitable sharing of benefits (‘benefit-sharing’) got further attention both, internationally and domestically. At the 10th Conference of Parties of CBD, a supplementary agreement to the CBD, the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (the ‘Nagoya Protocol’) was signed (with effect from 12 October 2014). The Nagoya Protocol calls for the state parties to, inter alia, make provisions to ensure that the users of the genetic resources, share the benefits that they reap from such use, with the local communities who conserve such resources. Such benefits can be monetary or non-monetary, but they have to be on mutually agreed terms with the local communities. India ratified the Nagoya Protocol in 2012. Consequently, the Government of India, through the National Biodiversity Authority (created under the Act) came up with the Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations 2014 (‘Regulations’).

Thus, the Act, the Rules and the Regulations together constitute the benefit-sharing regime in India. The next part shall explain the legal framework of benefit-sharing as envisaged by the Act and later by the Regulations. A correct understanding of the Act is important,inter alia, to appreciate an argument made later in this article on how the Regulations deviate from the content of its parent Act, and a judicial misinterpretation in that regard.

III. LEGAL FRAMEWORK OF BENEFIT-SHARING IN INDIA

The Biological Diversity Act 2002 prescribes the procedures to be followed by the users to access the bio-resources located within the Indian territory. However, the law categorically prescribes different procedures for such access for non-Indian and Indian users. The non-Indian users are required to get an approval from the National Biodiversity Authority (‘NBA’), a central regulatory body created under the Act, before accessing the bio-resources for any purpose. However, the Indian users do not require such approval. They just need to give a ‘prior intimation’ to their respective State Biodiversity Boards (‘SBBs), state level statutory authorities created under the Act, that too, only when the purpose of access is commercial utilisation, bio-utilisation or bio-survey.

The Act then provides a separate process of approval from the NBA for the non-Indian users. They are required to apply to the NBA before accessing the bio-resources and the NBA then processes and approves those application. In approving the applications, the NBA is required to put certain terms and conditions on the use of the bio-resources that would ensure that the user equitably shares the benefits arising out of such use. These terms have to be as per mutual agreement between the users, the local bodies, and benefit claimers.

Pertinently, this provision, under which the NBA is required to put benefit sharing as a condition on the users’ access, is there only for non-Indian users and not for Indian users. Since Indian users are not required to get an approval from the NBA/SBB, such absence is well-warranted. However, despite such clear-cut differentiation in the law, various SBBs (on the footsteps of the NBA) have been, over the years, putting benefit-sharing obligations upon the Indian users. They argue that they are legally empowered to demand benefit-sharing from the Indian users. In fact, a 2018 judgment by the Uttarakhand High Court (as this article shall discuss later) has accepted their stand.

But before the judiciary, the executive has endorsed this erroneous position of law by empowering the SBBs to demand benefit-sharing through the Regulations, as discussed in the next sub-part.

A. THE REGULATIONS AND THE EMPOWERMENT OF SBBS QUA BENEFIT-SHARING

Between 2012 and 2013, the Madhya Pradesh SBB (‘MP SBB’) (that has the largest share of cases on benefit-sharing issue) issued notices to various Indian companies using bio-resources to share with the MP SBB 2% of their gross revenue annually. Around thirteen of these companies moved the National Green Tribunal Central Zone Bench (‘NGT (CZ)’) arguing that the SBB was not empowered to demand benefit-sharing from Indians. After a series of similar litigations (mostly resulting in favour of the MP SBB), the NGT (CZ) directed the Government of India to come up with standardized guidelines for ABS from Indian users. In response to this and in furtherance of the Nagoya Protocol (as discussed earlier), the NBA came up with the 2014 Regulations.

Under the Regulations, both, non-Indian as well as Indian users are required to apply to the NBA and SBBs respectively for accessing bio-resources for commercial utilisation, bio-utilisation/bio-survey for commercial utilization. On being satisfied with the applications, the NBA/SBB (as the case may be) would enter into Access and Benefit Sharing Agreements (‘ABS Agreements’) with the users, and thereby approve the applications. Under the ABS agreements, the users are liable to pay to the NBA/SBB (as the case may be), a certain percentage (0.1% to 0.5%) of their annual gross ex-factory sale minus government taxes as benefit-sharing amount.

So, in essence, the above provisions in the Regulations have empowered the SBBs with twin powers regarding the access and usage of bio-resources by Indians. The first is the grant of ‘approvals’ to the Indian users to access the resources (through ABS agreements), and the second is the power to demand benefit-sharing money from them (as part of the ABS agreements). The Act does not provide either of these powers to the SBBs, as discussed. Nevertheless, in practice, the SBBs vehemently exercise these powers by virtue of the Regulations. Furthermore, in 2018, the Uttarakhand High Court, in a landmark ruling, held upheld the power of the SBBs to put benefit-sharing obligations upon Indian users, and has raised further concerns, as the next part discusses.

IV. DIVYA PHARMACY v. UNION OF INDIA - JUDICIAL MISINTERPRETATION AND ITS RAMIFICATIONS

The authority of NBA in demanding benefit-sharing from non-Indian users has not been questioned so far. However, similar authority of the SBBs has been questioned on various occasions, more so, since the notification of the Regulations. Finally, in 2018, the Uttarakhand High Court (‘Court’) settled the jurisprudence on this issue in Divya Pharmacy v. Union of India (‘Divya Pharmacy’).

In 2016, the Uttarakhand SBB had issued a notice to Divya Pharmacy (a manufacturer of Ayurvedic medicines and nutraceutical products in Haridwar) to share 2% of its revenue, annually to the SBB as fair and equitable benefit-sharing amount. Divya Pharmacy moved the Court against such notice. It relied upon the definition of ‘fair and equitable benefit sharing’ under Section 2(g) of the Act that defines it as sharing of benefits as determined by the National Biodiversity Authority, and not by State Biodiversity Boards. Further, under Section 21, the NBA, while granting approval to the non-Indian users, shall ensure that the terms on which such approval is granted, secures equitable benefit sharing from use of the bio-resources. Based on these, Divya Pharmacy argued that under the Act, only the NBA, and not the SBBs, is empowered to levy benefit sharing obligations, and since NBA approval is required only for non-Indian users, Indian users are free from benefit sharing obligations. All they need to do is give prior intimation to the SBB.

The Union of India argued that the Indian, non-Indian user differentiation in the Act is only to determine the authority they need to approach, and not regarding benefit-sharing obligations. It further argued that if such a differentiation is maintained, it would defeat the objective of the Act and the international conventions that India is a signatory to. Further, it relied upon Section 7 r/w Section 23(b) that suggest that the SBB is not a mere bystander that is only required to accept prior intimations by the Indian users. It also has the power to ‘regulate by granting of approvals or otherwise’ requests for commercial utilization/bio-survey/bio-utilization. Further, the SBB can restrict any activity if it opines that such activity is detrimental to equitable benefit-sharing from that activity.

The Court observed that even though a literal interpretation of the Act does not put a benefit-sharing obligation upon non-Indian users, the law has to be interpreted in light of its purpose. And since the Act was enacted in furtherance of the CBD/Nagoya Protocol, it has to be interpreted in that light. Since, CBD/Nagoya Protocol do not differentiate between domestic and foreign entities in putting benefit sharing obligations, the legislature would not have intended to make such differentiation in the Act. Therefore, it agreed with the Union to hold that SBBs also have the power to levy benefit-sharing obligations on non-Indians and the NBA is empowered to frame guidelines in that regard.

This judgment had received mixed response from different sections. While some saw it as a landmark judgment that has clarified the law on ABS by SBBs, and as a concrete step that would further the objectives of CBD and Nagoya Protocol, others feared that it would give impetus to a new order of bureaucrats to secure their own turfs as the benefits anyway do not actually reach the local communities. The author argues that the court’s decision is a judicial misinterpretation of the Act and that a purposive interpretation was not warranted in this case. The next sub-section clarifies this argument.

A. JUDICIAL MISINTERPRETATION

The Court had acknowledged that a literal interpretation of the Act does not put benefit-sharing obligations upon Indian users (even though the Union argued that even the provisions put benefit-sharing obligations upon Indians). However, it went past the literal interpretation to a purposive interpretation in light of India’s international obligations.

The author argues that the Court was incorrect in taking a purposive interpretation here when the statute clearly differentiates between Indian and non-Indian users vis-à-vis
benefit-sharing obligation, as discussed. In India, the courts are not supposed to necessarily read a law in light of India’s international obligations. As discussed in NALSA v. Union of India, if the legislature makes a law that is in conflict with international law, Indian courts are bound to give effect to the domestic law, rather than the international law. But, if there is a void in the domestic legislation and a contrary legislation is absent, the courts can give effect to international laws. Pertinently, in Vishaka v. State of Rajasthan, when there was a void in the Indian law on prevention of sexual harassment and there was no contrary law present, the court read the provisions of the CEDAW Convention into the domestic law. Furthermore, in Novartis v. Union of India, the court denied to test whether Section 3(d) of the Patents Act 1970 was in compliance with the TRIPS Agreement or not.

Therefore, when the Act is loud and clear in not putting benefit-sharing obligations upon Indian users, the Court should have interpreted it literally and not purposively. The Act envisages different procedures and rules for Indian and non-Indian users regarding benefit-sharing, and wherever required, they are put on equal footing.So, if the legislature intended to put benefit sharing obligation upon Indian users as well, it could have very well done that in the relevant provisions.

B. RAMIFICATIONS

This judgment gave judicial acceptance to the Regulations that empowered the SBBs to levy benefit-sharing obligations upon Indian users. This judgment had been eyed by various Indian entities that had not registered themselves with the SBBs. Post this judgment, all those entities would be required to register with the respective SBBs. Furthermore, the SBBs in all states that were not very proactive in demanding ABS would feel emboldened with this judgment. A large number of businesses, small businesses in particular, face unjustified legal threats from the SBBs. In one case, forest officers from the biodiversity board apparently raided the premises of a company, despite the fact that the Act does not warrant such even if there is a non-compliance with the law.

Divya Pharmacy judgment is not up for an appellate decision. Therefore, the bottom line is that the system of levying benefit-sharing upon Indian users continues, in fact, with much more authority. Nevertheless, for the reasons discussed above, this position of law taken in Divya Pharmacy is questionable and this issue may reopen for further discussion in some future case where the court may/may not agree with Divya Pharmacy. There may even be a legislative clarification as well. Whatever course of action the legal issue of benefit-sharing obligation takes, there are further reasons to argue that the current benefit-sharing regime in India (for both, Indian and non-Indian users) is problematic on various fronts. And now that even the SBBs are formally empowered to levy benefit-sharing, it would further multiply the problems already existing. Therefore, the author proposes a different model of benefit-sharing altogether, which is more transparent, certain, and fairer, and also complies with the objectives of benefit-sharing obligations. But before that, it is important to understand some of the major problems that exist in the current benefit-sharing regime, that solicit for an alternative approach/model.

V. PROBLEMS IN THE CURRENT ABS REGIME – BUREAUCRATIZATION, DELAYS, ETC.

The benefit-sharing responsibility casted on the users of bio-resources (particularly, commercial users) is a result of a global push by conservationists, rights activists, governments, etc. to ensure that parts of the benefits yielding to the users from bio-resources go back to the communities who play a significant role in housing/developing/conserving those resources for a long time. This responsibility is further to acknowledge that the users, in utilizing the bio-resources greatly rely upon and benefit from the ‘traditional knowledge’ of the local communities regarding those bio-resources.

However, the Regulations, enacted supposedly to further the objectives of CBD and Nagoya Protocol, some scholars argue, reflect that the Government of India sees ABS as a ‘large-scale financing mechanism’ that would generate funds to be used for conservation and poverty reduction. As per the Regulations, 95% of the money received under ABS has to be given directly to the local communities (if identifiable) or to support the conservation of bio-resources and the livelihood of people in that region. But, scholars argue that there is no information on how the ABS money is ultimately shared with the local communities. This raises suspicion that the SBB bureaucrats are using the ABS system to extract money from the users just to secure their own turfs. Similarly, little documentary evidence prove that the ABS money goes towards conservation of bio-resources and livelihood of the communities. These raise questions about the actual performance of the Government on its promises under the Act/CBD/Nagoya Protocol. However, further exploration on the ‘actual performance’ of the Government is not the primary focus of this article. Nevertheless, under the current framework, the bio-resources and the traditional knowledge of the communities are now being controlled by government bureaucrats. More so, the NBA (again, a government body) has been made the relevant authority to determine what shall be ‘equitable’ for benefit sharing in each case, adding another level of bureaucratic interface. This excessive control/involvement of the Government authorities in the entire process is a major problem that needs to be fixed. Some of the aspects of the current benefit-sharing regime in which this control is reflected are discussed hereinafter.

A. FIRSTLY, DETERMINATION OF ABS TERMS IS TOTALLY CONTROLLED BY THE GOVERNMENT AUTHORITIES

The Act provides that the amount to be paid, and other terms under ABS have to be determined on Mutually Agreed Terms (‘MAT’) between the user, the concerned local bodies and the local communities (benefit claimers). However, in practice, the users (under both, NBA and SBBs) hardly get any say in the determination of the MAT. The application process of the NBA as well as of major SBBs starts with the filling of a standard application form by the user. The NBA/SBB then, after completing the internal processes (that involves consultation with the local bodies) with the applications, comes up with the terms of access and the ABS amount to be paid by the user. The user is then required to sign an ABS agreement drafted to that effect (usually, a standard agreement) and pay the ABS money. Importantly, in this entire process, there seem to be no scope for any
consultation/discussion with the users in determining the MAT. At most, the users can appeal before the National Green Tribunal against the calculation of the ABS amount. Therefore, MAT is just a misnomer and in reality, the users do not have any say in it. Further, even the benefit claimers hardly have any say in the MAT determination. This is because the local bodies, that are ultimately required to deliberate with the local communities and take steps for their benefits and conservation of the resources, are not adequately developed, and in many areas, not even existent! Therefore, only the Government authorities take the first and the final calls.

B. SECONDLY, LONG DELAYS IN THE ABS PROCEDURE

For non-Indian users, NBA approval is required at almost every stage (from approval for access for research, commercial utilization, bio-utilization or bio-survey and for transfer of research results, to approval for transfer of biological resource or knowledge associated thereto). This causes the diversion of resources of those non-Indian users in legal advices, other transaction costs, etc. Long delays in approvals further complicates the quagmire. Now, with the Regulations, since the SBBs also enjoy the right to demand benefit-sharing as a condition precedent to granting the approval to access the bio-resources (and other terms as per the ABS agreements), similar delays have become a reality for Indians as well. For example, in Uttarakhand SBB (that belongs to one of the most biologically diverse Indian states), as of May 17, 2018, the status of around 120 out of 139 ABS agreements have been pending at the application stage for the applications filed in the year 2014-15. The website does not reflect any newer data. Since the bureaucrats have been given the power to determine the ABS and other terms, this gives them a leverage in demanding more and more money from the users. Consequently, bigger companies/entities get free from this bureaucratic red tape by providing hefty upfront ABS amounts and easily secure their access to the bio-resources. It is the smaller players in the market that suffer from the system.

C. THIRDLY, THE MANNER OF CALCULATION OF ABS AMOUNT IS PROBLEMATIC

Thirdly, the Regulations simply provides flat rates of 0.1-0.5% on the ex-factory sales of the products without explaining the logic behind these figures. Such arbitrary calculation squarely ignores the differences in the relative value of different bio-resources in different end-products, something that should be an important consideration in benefit-sharing amount calculation. This article deals with this point in a while.

Having described the problematic aspects of the current benefit-sharing regime, the author hereby proposes an alternative model that can be put up for discussions as a concrete step towards reforming the present system.

VI. AN ALTERNATIVE MODEL FOR BENEFIT-SHARING PAYMENTS

The objective of the Nagoya Protocol is fair and equitable sharing of benefits arising from the utilisation of genetic resources. However, it does not subscribe to a particular type of benefit sharing or a model thereof. It provides a non-exhaustive list of monetary or non-monetary benefits that the members may adopt in their domestic jurisdictions. Therefore, India’s international obligations do not stop it from adopting a different model for benefit-sharing as long as it ensures fair and equitable benefit sharing with the local communities. The author argues that the proposed model does allocate fair and equitable benefit-sharing amounts for the local communities, thereby, is compliant with the objectives of the
Act/CBD/Nagoya Protocol. Furthermore, it has the potential to address various problems existing in the current regime, and is more certain, transparent, and fairer.

A.  A TWO-STEP  PROCESS  FOR  DISCHARGING  BENEFIT-SHARING  OBLIGATION

The author proposes that benefit-sharing obligation should be discharged by the users in two steps. At the time of filing of application before the SBB (and on every subsequent year), a user can pay a reasonable upfront amount and be allowed to access the resources immediately on payment of such amount. A simpler version of the ABS Agreement can be signed at this point. Then, at the end of the financial year, the final ABS amount calculated can be adjusted with the upfront amount. If the calculated ABS exceeds the upfront amount, the balance can be paid to the SBB by the user, and if it falls short, the balance can be refunded to the user or be carried forward to the next financial year. This process shall repeat for every financial year. Possibility of making this process automated/partly automated can also be explored. This way, the obligation to pay certain upfront amount would ensure that the users do not use the bio-resources free from any immediate obligation, while at the same time are not burdened a lot. The exact value of this upfront amount can be fixed by considering the necessary variables.

The scenario would be a bit different for non-Indian users. After filing the applications and before the access, they would be required to wait for NBA’s approval. However, the payment obligation can be made simpler under the proposed model even for non-Indian users.

Having proposed the model, the author now argues that this model adequately addresses the concerns raised in this article vis-à-vis the present regime.

I. ADDRESSING THE CONCERNS IN THE PRESENT REGIME

As discussed, the present regime is saddled with huge administrative discretion/control
 that makes the process opaque, uncertain and puts the users at the mercy of the authorities. The proposed model reduces the administrative discretion/control significantly. The authorities would not be free to charge any amount as upfront payment from the users. If they do so, they would be liable to refund the excess amount at the end of the financial year. The proposed model comes with greater certainty and transparency. Further, by ensuring that the users end up paying fair and equitable benefit-sharing amount, it furthers the objectives of the Nagoya Protocol, and at the same time does not unnecessarily burden the users of the bio-resources. Further, since the proposed model would be rather simpler in terms of working, it would cut the unnecessary delays that happen in the current benefit-sharing regime.

Now, having discussed the framework of the proposed model,  the author  also proposes a different model for the calculation of the ABS amount. This proposed model would be fairer and compliant with the international conventions (and the Act), and would also address the third concern raised in this article.

B. BENEFIT-SHARING IN FORM OF AD-VALOREM ROYALTY

Under the present mode, benefit-sharing amount is levied as a certain percentage on the ex-factory sales value of the goods produced that uses bio-resources. The author proposes that ABS should instead be levied as a certain percentage on the value of the bio-resources used in the final product, like an ad valorem royalty, and not on the sales value of the final product. Such an ad valorem royalty model is not new in the benefit-sharing regime. It has been previously proposed in certain other kinds of benefit-sharing frameworks. For example, under the 1982 United Nations Convention on the Law of the Seas, there are benefit-sharing provisions qua the benefits arising out of the exploration of resources in the seabed, that are to be shared equitably for the mankind as a whole. In furtherance of this, later, various models of benefit sharing have been proposed. One proposal was to impose an ‘ad valorem royalty’ on the value of sales of the seabed resources to be paid towards benefit-sharing.

Evidently, the benefit sharing obligation was proposed only on the value of the seabed resources and not the final product made out of it. The author argues that the possibility to introduce such a model should be explored in the Indian benefit-sharing regime as well where benefit-sharing obligation is put on the total value of the bio-resources used and not the ex-factory sales value of the final product (as happens in the present regime).

A final product (be it a pharmaceutical product, cosmetic product, etc.) is not formed just by the use of the bio-resources. Various other inputs are also involved. Therefore, it is unfair to tax the users on the total value of the products (that includes many more inputs other than the bio-resources) in name of benefit-sharing. Pertinently, if the objective of the Act/CBD/Nagoya Protocol is to ensure that the benefits accruing to the users due to the use of bio-resources comes to them, it only seems fair if such an obligation is put on the users only to the extent the bio-resources are valued/used in the products and not beyond. The manner of calculation of such value can be explored.

This model also addresses the third concern raised in this article. Since ad valorem royalty would be levied on the value of the bio-resources in a particular product, it would take into account the differences in the use of bio-resources (in terms of amount as well as value) in different end-products, which is not taken care of in the present regime. For example, bio-resources may form the most important component in a pharmaceutical product, but it may not be so in a cosmetic product that might just use the essence of a biological resource. Under the present system, since benefit-sharing amount is levied on the ex-factory sales value, it does not account for the relative difference in the value of the bio-resources in the two products. However, the present model would take care of the same.

Both prongs of the proposed model can be implemented in either of the circumstances, whether the Divya Pharmacy’s interpretation occupies the field of law, or it is later overturned by the apex judiciary or the legislature. In the former case, the proposed model can be applied in levying benefit-sharing upon both, Indian and non-Indian users, while in the latter, it can be applied only qua the non-Indian users.

VII. CONCLUSION

Benefit-sharing obligation is levied so that the benefits actually reach to the local communities. But as things stand, the performance of the Government on this front is highly questionable. Therefore, some scholars argue a legislation like the Act, that has failed in its purpose and is just benefitting the Government authorities, must be repealed. However, the author argues that, since the current model is not serving its purpose adequately, it is only fair if it is at least made less burdensome for the users, while remaining compliant with the applicable international conventions. The proposed model proposes a way towards the same. The specifics of this model can be worked out, but the focus of this article has been to present the problems prevalent in the system and initiate a discussion towards rebranding the benefit-sharing regime in India towards a more certain, transparent, and fairer regime.But even this model would be inadequate to ensure that the benefits actually reach the local communities. However, that would be a discussion for another day.

Doctrine of ‘Right to be Forgotten’ in Indian Law

(By Saji Koduvath, Advocate, Kottayam)

Abstract of the Contents

1. Courts in India apply the doctrine of ‘Right to be forgotten’:

(i)   basing on the foundational principles enshrined in Article 21 of the Constitution (Right to Life),

(ii)    following the land mark decision, K.S.Puttaswamy v. Union of India (2017 (4) KLT 1 (SC)  = (2017) 10 SCC 1) wherein it is held: “Privacy postulates the reservation of a private space for the individual, described as the right to be let alone”) and

(iii)  under the provisions of Information Technology Rules, 2021.

2.    Personal Data Protection Bill, 2019, that upholds the doctrine of  ‘Right to be Forgotten‘, is not passed, though introduced in Parliament in 2019.

3.    Now this doctrine is used for removing private information from internet.

 

Part I

What is ‘Right to be Forgotten‘

It is human nature to forget things. The right of an individual not to be injured, out of another’s acts of constant recalling-of-past-deeds, is recognized in law – as the doctrine of ‘Right to be Forgotten’. 

Now Used for Removing Private Information from Internet

Now-a-days it is applied to uphold reputation of a person, by removing the private information about him from internet sites and services.

Right to Righteous Life and Reputation

Article 21 (Right to Life) of the Constitution of India reads:

“Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Right to righteous life is an inalienable human right

 

Shakespeare(Othello:Act II, Scene iii) says through IAGO as under:

      “Good name in man and woman, dear my lord,

      Is the immediate jewel of their souls:

      Who steals my purse steals trash; ’tis something, nothing;

      ‘Twas mine, ’tis his, and has been slave to thousands:

      But he that filches from me my good name

      Robs me of that which not enriches him

      And makes me poor indeed.”

Shakespeare made it clear – a good name, or reputation, is valuable for its owner. Stealing the reputation of one, does not make another rich. But he who loses reputation, suffers damage.

First Statute which recognized ‘right to be forgotten

The European Union systematized the right to be forgotten in a statute, first time, in the year 2018, by ‘General Data Protection Regulation’.    

First case where ‘right to be forgotten’ recognized

Google Spain SL v.Agencia Espanola de Proteccion de Datos (AEPD), [2014] QB 1022,may be the first case wherein the ‘right to be forgotten’ was recognized as a legal right. It is sprouted from ‘right to privacy’.

 

Part II

Codification of the Law on Reputation in India

Personal Data Protection Bill, 2019.

Personal Data Protection Bill presented in the Indian Parliament by the Ministry of Law and Justice, based on the recommendations of V.N. Sreekrishna Committee, in 2019, legally accepted the ‘right to be forgotten’ as a recognizable right.  Unfortunately, the bill had not been passed by the Parliament, so far. 

Information Technology Rules, 2021.

Rule 3(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 directs as under:

“(2) Grievance redressal mechanism of intermediary:

(a)The intermediary shall prominently publish on its website,mobile based application or both,as the case may be, the name of the Grievance Officer and his contact details as well as mechanism by which a user or a victim may make complaint against violation of the provisions of this rule or any other matters pertaining to the computer resources made available by it, and the Grievance Officer shall –

(i) acknowledge the complaint within twenty four hours and dispose off such complaint within a period of fifteen days from the date of its receipt;

(ii) receive and acknowledge any order, notice or direction issued by the Appropriate Government, any competent authority or a court of competent jurisdiction.

(b) The intermediary shall, within twenty-four hours from the receipt of a complaint made by an individual or any person on his behalf under this sub-rule, in relation to any content which is prima facie in the nature of any material which

exposes the private area of such individual,

shows such individual in full or partial nudity or

shows or depicts such individual in any sexual act or conduct, or

is in the nature of impersonation in an electronic form,

including artificially morphed images of such individual,

take all reasonable and practicable measures to remove or

disable access to such content which is hosted, stored,

published or transmitted by it:

(c) The intermediary shall implement a mechanism for the receipt of complaints under clause (b) of this sub-rule which may enable the individual or person to provide details, as may be necessary, in relation to such content or communication link.”

 

High Court Decisions in India, on ‘Right to be Forgotten’  

Despite the non-delivery of the proposed ‘Personal Data Protection Bill’ by the Parliament, various High Courts in India pronounced judgments accepting the doctrine, ‘right to be forgotten’, as an inalienable human right.  It is founded upon Art. 21, ‘Right to Life’, the most valuable fundamental rights in the Constitution of India. 

 

After the decision on ‘Right to Privacy’ rendered by the Supreme Court of India in  K.S. Puttaswamy v. Union of India (2017 (4) KLT 1 (SC) = (2017) 10 SCC 1), various High
Courts upheld the rights arising from ‘right to be forgotten’, based on the dogma on ‘Right to Privacy’.

The following are the land-mark decisions on the doctrine of the ‘right to be forgotten’ (after the verdict in Puttaswamy).

1.    Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd.(Delhi HC, 2019) 

      2019 SCC OnLine Del.8494).

2.    Sri Vasunathan v. The Registrar General (Karnataka H.C.) (2020).

3.    Subhranshu Rout Gugul  v. State of Odisha (2020 (Orissa H.C.),

      2020 SCC OnLIne Ori.878).

4.    X  v. YouTube (2021).

5.    Jorawer Singh Mundy v. Union of India & Ors. (Delhi HC, 2021),

      2021 SCC OnLine Del.2306).

 

Prior to the Supreme Court decision in Puttaswamy, the Courts in India did not accept the ‘right to be forgotten’ as a right recognizable in the Jurisprudence available in India.  It was on the premises that no enacted law spoke specifically as to such a right.  The said earlier decisions include the following:

* Naresh Sridhar Mirajkar v. State of Maharashtra (AIR 1967 SC 1).

* Dharamraj Bhanushankar Dave v. State of Gujarat ( 2017 SCC OnLine Guj. 2493).     

* Anchit Chawla v. Google India, 2018.

 

Even after Puttaswamy, finding it ‘more appropriate to await’ till the Parliament opens its eyes or expounds its wisdom, the T.N. High Court held in Karthick Theodre v. The Registrar General, (2021 SCC OnLine Mad. 2755), as under:

“This Court honestly feels that our criminal justice system is yet to reach such standards where courts can venture to pass orders for redaction of name of an accused person on certain objective criteria prescribed by rules or regulations. It will be more appropriate to await the enactment of the Data Protection Act and Rules thereunder, which may provide an objective criterion while dealing with the plea of redaction of names of accused persons who are acquitted from criminal proceedings. If such uniform standards are not followed across the country, the constitutional courts will be riding an unruly horse which will prove to be counterproductive to the existing system.”

 

Part III

Decisions Upheld, ‘Right to be Forgotten’

1. X  v. YouTube (Delhi HC, 2021)

The plaintiff in that case was a well-known actor in TV and Film world of India.  She participated in the creation of Video made mention of in the suit (suit video).  The project was later on dropped.  But the plaintiff found that the producer of the suit video uploaded it in YouTube channel and website.  On the request of the plaintiff the producer removed the videos.  Without plaintiff’s consent the defendants in the suit uploaded the suit videos in various websites.

The plaintiff applied for anonymity and filed the suit against the publication, streaming, or other broadcasting, on the ground that the suit videos infringed her privacy, negatively affected her reputation and it prejudiced her career.  

The contesting defendant (Google) argued the following:

*     they were unaware of the agreement as to the videos;

*     the plaintiff being consented  filming the videos  defendants were not under an obligation to prevent the publication of the videos;

*     the plaintiff had no statutory protection to enforce the ‘right to be forgotten’. 

*     the plaintiff had not required the authorized representative who complied to the Intermediary as provided under Rule 3(2)(b) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

*     Section 67 & 67A of the Information Technology Act, 2000 excluded matters
published in the interest of Science, Literature, Art, etc.

The defendants (Google) relied, mainly, on:

*    KarthickTheodre v. Registrar General (2021 SCC OnLine Mad. 2755).

*     Dharamraj Bhanushankar Dave v. State of Gujarat (2017 SCC OnLine Guj. 2493),

*     Anchit Chawla v. Google India, 2018. 

Finding the suit to be maintainable, the Court held that the suit videos were of the kind that comes in Rule 3(2)(b) of the I.T. Rules, 2021.  The Court pointed out:

*     Even if plaintiff allowed to videograph voluntarily, the suit videos were not agreed to be published or transmitted by the defendants. 

*     She did not license for any of the URLS, Websites or Search engines to publish or transmit the same to YouTube. 

*     The defendants published or circulated the videos ‘for obvious monitory and other prurient benefits’. 

*     Even if the producer would have claimed protection on the consent of the plaintiff, the defendant had ‘no such consent’. 

*     ‘Right to be forgotten’ and the ‘right to be left alone’ are ‘inherent aspects’ of the ‘right to privacy’. 

The claim raised by the plaintiff against the circulation of videos against her will was accepted by the court.

 

2. Jorawer Singh Mundy v. Union of India & Ors.  (Delhi H.C., 2021)

The Delhi High Court (Prathiba M. Singh, J.) upheld the doctrine of ‘right to be forgotten’ in this decision. 

The petitioner, an American citizen of Indian origin, travelled in India during 2009. 
A criminal case under the NDPS Act, 1985 was lodged against him.  He was acquitted from all the charges.  The appeal filed by the Customs was also dismissed.  After his return to US, the petitioner had to face disadvantages due to the availability of his case on a Google search.  Hence employment to his expectations was denied to him.  The petitioner issued notice to Google India Pvt. Ltd., Google LLC, Indian Canon, etc.  Even after notice the respondents in the case did not remove the judgment.  Hence the petitioner filed the petition to recognize his right to privacy under Article 21 of the Constitution of India.

The High Court referred the following judgments:

* K.S. Puttaswamy (2017 (4) KLT 1 (SC) = (2017) 10 SCC 1). 

* Zulfiqar Ahman Khan (supra) and

* Subhranshu Rout Gugul (supra)

 

The High Court, by an interim order, directed Google India Pvt. Ltd. and Google LLC to remove the judgment from ‘search results’ sought for by the petitioner; and directed Indian Canon to block the said judgment from being accessed by using search engines such as Google/yahoo etc. 

 

3. Subhranshu Rout Gugul  v.  State of Gujarat (2017 SCC OnLine Guj. 2493)

The petitioner was charged with various offences including rape of his classmate.  While considering the bail application a question arose as to the recognition of the ‘Right to be forgotten’ in Indian Law since the video recording with the accused was alleged to be used to threaten and blackmail the victim.  The court has to consider the impact of the publication of the videos in Facebook, and in this conduct the recognition of the ‘right to be forgotten in India’ came up.  The court pointed out that if Rout removed the Facebook video it would still remain ‘in the public domain’.  The High Court referred to

*     Sri Vasunathan v. The Registrar General (2017 SCC Online Kar.424).

*     Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd.  (2019 SCC OnLine Del.8494), 2019(175) DRJ 660). 

*     (Name Redacted)  v. The Registrar General (Karnataka High Court).

It was pointed out that in (Name Redacted)  v. The Registrar General (Karnataka High Court) recognized ‘right to be forgotten’ explicitly, though in a limited sense; and that the petitioner’s request (to remove his daughter’s name, from the judgment, involving claims of marriage and forgery) was upheld.  In that decision it was held that recognizing ‘right to be forgotten’ would parallel initiatives by western countries which upheld this right when sensitive cases concerning the modesty or reputation of people, especially women, were involved. 

 

The High Court also relied on Puttaswamy v. Union of India to uphold the rights claimed in the matter.   

4. Sri Vasunathan v. The Registrar General (Karnataka H.C.)  

In this case it was observed that the ‘right to be forgotten’ is ‘keeping in line with the Trend in western countries where it is followed as a matter of rule’.

 

5. Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd., 2019 SCC OnLine Del. 8494.

The suit was filed seeking permanent injunction against a digital/electronic platform (www), its editor and an author who had written articles against the Plaintiff on the basis of harassment complaints claimed to have been received by them, against the Plaintiff, as part of the #MeToo campaign. The three individuals, who made allegations against the Plaintiff, have remained anonymous and have not revealed their identity in the public domain.

 

The Defendants, while the matter is being heard submitted the court that they were willing to pull down the said two publications against the plaintiff and that the first article had already been pulled down.

 

It was pointed out by the Court that if re-publication is permitted to go on continuously, the Plaintiff’s rights would be severely jeopardised. The court observed:

“The original publisher having already agreed to pull down the same, this Court having directed that the same ought not to be republished, the Plaintiff, thus, has a right to ensure that the articles are not published on multiple electronic/digital platforms as that would create a permanent atmosphere of suspicion and animosity towards the Plaintiff and also severely prejudice his personal and professional life. The printouts of the articles from certain sites, which have been shown to the Court, leave no doubt in the mind of the Court that these are identical to the articles published on the first defendant’s site, which have already been pulled down.”

 

Then it is held as under:

“9. Accordingly, recognising the Plaintiff’s Right to privacy, of which

*     the ‘Right to be forgotten’ and

*     the ‘Right to be left alone’ are inherent aspects,

it is directed that any republication of the content of the originally impugned articles dated 12th October 2018 and 31st October 2018, or any extracts/ or excerpts thereof, as also modified versions thereof, on any print or digital/electronic platform shall stand restrained during the pendency of the present suit.

 

10. The Plaintiff is permitted to communicate this order to any print or electronic platform including various search engines in order to ensure that the articles or any excerpts/search results thereof are not republished in any manner whatsoever. The Plaintiff is permitted to approach the grievance officers of the electronic platforms and portals to ensure immediate compliance of this order.

 

11. If the said search engines do not take down/remove the objectionable content from their platforms within a period of 36 hours after receiving communication from the Plaintiff with a copy of this order, the Plaintiff is also permitted to communicate with the Defendants so that the Defendants can also co-operate in the said pulling down, if required. If the said platforms do not, after being served by a copy of this order, take down the objectionable content, the Plaintiff is given liberty to approach this court forthwith – apart from approaching the appropriate authorities under the Information Technology Act.”

Part IV

K.S. Puttaswamy  v. Union of India and the ‘Right to be Let Alone’

In the celebrated decision on ‘right to privacy’ (K.S. Puttaswamy (2017 (4) KLT 1 (SC)  = (2017) 10 SCC 1) , our Supreme Court has held that the ‘right to be let alone‘ is a part of ‘essential nature of privacy‘ of an individual. It is held as under:

 

“Essential nature of privacy

297. What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognizing a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.

 

402. “Privacy” is “[t]he condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions” [Black’s Law Dictionary (Bryan Garner Edition) 3783 (2004)] . The right to be in this condition has been described as “the right to be let alone” [ Samuel D.Warren and Louis D.Brandeis, “The Right To Privacy“, 4 Harv L Rev 193 (1890)] . What seems to be essential to privacy is the power to seclude oneself and keep others from intruding it in any way. These intrusions may be physical or visual, and may take any of several forms including peeping over one’s shoulder to eavesdropping directly or through instruments, devices or technological aids.

 

479. Both the learned Attorney General and Shri.Sundaram next argued that the right to privacy is so vague and amorphous a concept that it cannot be held to be a fundamental right. This again need not detain us. Mere absence of a definition which would encompass the many contours of the right to privacy need not deter us from recognising privacy interests when we see them. As this judgment will presently show, these interests are broadly classified into interests pertaining to the physical realm and interests pertaining to the mind. As case law, both in the US and India show, this concept has travelled far from the mere right to be let alone to recognition of a large number of privacy interests, which apart from privacy of one’s home and protection from unreasonable searches and seizures have been extended to protecting an individual’s interests in making vital personal choices such as the right to abort a foetus; rights of same sex couples–including the right to marry; rights as to procreation, contraception, general family relationships, child-bearing, education, data protection, etc. This argument again need not detain us any further and is rejected.

 

560. The most popular meaning of “right to privacy” is -“the right to be let alone“. In Gobind v. State of M.P. (Gobind v. State of M.P. (1975) 2 SCC 148 : 1975 SCC (Cri.) 468), K.K.Mathew, J. noticed multiple facets of this right (paras 21-25) and then gave a rule of caution while examining the contours of such right on case-to-case basis.

 

636. Thus, the European Union Regulation of 2016 [Regulation No.(EU) 2016/679 of the European Parliament and of the Council of 27.4.2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive No.95/46/EC (General Data Protection Regulation).] has recognised what has been termed as “the right to be forgotten”. This does not mean that all aspects of earlier existence are to be obliterated, as some may have a social ramification. If we were to recognise a similar right, it would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest. Such a right cannot be exercised where the information/data is necessary, for exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims. Such justifications would be valid in all cases of breach of privacy, including breaches of data privacy.”

(Quoted in: Subhranshu Rout Gugul  v. State of Odisha, 2020 (Orissa H.C.),

2020 SCCOnLIne Ori. 878).