Removal of Offending Content from Cyber Space:
An Analysis in the Light of Evolving Dimensions of Intermediary
Liability and Judicial Pronouncements

(By Dr. Raju Narayana Swamy IAS)

Intermediary : The concept

Intermediaries are gateways to the internet- services enabling delivery of online content to the end user. The various players involved in the chain range from ISPs ( Internet Service Providers like Airtel that help users to get connected to the net by means of wired/wireless connections), search engines ( the most commonly used ones in India being Google Search, Yahoo Search, Microsoft Bing and Duck Duck Go), DNS providers (that translate domain names to addresses that can be understood by computers), web hosts, interactive websites (which include social media sites like Face book and Twitter) and even cyber cafes. The ambit of the term is wide enough to include any website that facilitates and brings together two interest groups ( such as retailers and consumers in an online shopping mall), carriers of information (a classic example being Gmail service) as well as payment gateways (PayPal and Pay tm to name a few). To be specific, Section 2(1) (w) of the IT Act, 2000 defines intermediary as “any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to electronic record........”.

 

However as time progressed, this definition (that derived much of its legal language from the EU e-commerce Directive of 2000) was broadened both in scope and in ambit. From the days wherein intermediaries were treated as monolithic entities- as simple conduits or dumb passive carriers who could not and did not play any active role in the content- the country has moved on to the era of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules of 2021 wherein even curated content platforms such as Netflix and Amazon Prime as well as digital news publications have been roped in. Content takedown provisions for online news websites and online news aggregators have become the order of the day. All online streaming platforms including Over-the –Top(OTT) come under the ambit of regulated entities . Needless to say, such a legal step was called for in the light of the diversification of services offered by the intermediaries and the significant issues of scale wielded by a few select players. As things stand today (despite criticisms that the ripple effects of these provisions will have a devastating impact as regards freedom of expression and that government agencies are given the ability to order take down of news and current affairs content online by publishers which are not intermediaries - with very few meaningful checks and balances), the Rules envisage three types of entities, whose levels of obligations vary based on the hierarchies of classification :-

(a)  Intermediaries within the traditional meaning of Section (2) (1) (w) of  the IT Act.

(b) Social Media Intermediaries (SMIs) (i e) entities which enable online interaction between two or more users (with less than 50 lakh registered Indian users)

(c)  Significant Social Media Intermediaries (SSMIs) (i e) entities with user-thresholds as notified by the Central Government- with more than 50 lakh registered Indian users ( Facebook, YouTube, Whats App etc.)

Liability of intermediaries for user generated content

A classic case where many eyebrows were raised regarding intermediary liability was the Baazee case wherein Avinash Bajaj, the CEO of an auction portal was arrested for an obscene MMS clip that was put up for sale on the site by a user. The Delhi High Court while considering a petition to quash the criminal proceedings in the case found that the web site that hosted the MMS could be held to the liable for sale etc. of obscene books u/s 292 IPC as well as Section 67 of IT Act. The case highlighted the risks that corporates could be exposed to in online space. To be more specific, although the content is not generated by intermediaries, they could be held liable for offences committed by users by utilising their services. Hue and cry followed that intermediaries be provided protection from such liabilities arising out of user – generated content.

 

 Models of Intermediary Liability

       Content on the internet typically concerns three parties:-

(a)  Content originators who post content.

(b)  Online intermediaries who provide a platform for users to share content on and

(c)  Content recipients who view the content posted.

 

Conceptually, it is important to distinguish between websites that post their own content ( a news organisation website for instance) and online intermediaries that merely provide a platform ( eg.:- Word Press, which allows bloggers and readers to interact , but has nothing to do with the content of individual blogs). In fact, law on liability of intermediaries is an evolving process- a classic example of this dilemma being the question of attributing liability to intermediaries for music piracy. The world has not forgotten the Napster case ( where Napster allowed peer to peer sharing of pirated music files , had control over their users and had a centralised server) as opposed to the case of Grokster and Smart Cast (which lacked a centralised server). It is within this frame work that various models of liability for intermediaries are to be assessed.

 

One of course is the strict liability model followed in countries like China and Thailand under which intermediaries are liable for third party content and are effectively required to monitor the content in order to comply with law. The second widely adopted approach is the safe harbour model wherein intermediaries are granted immunity provided they comply with certain requirements. This is the heart and soul of the notice and take down procedure (for instance followed in the US Digital Millennium Copyright Act (DMCA)). However opinions are galore that a “notice and notice” regime would be better suited to disputes involving defamation where the harm is caused to an individual by another. Under such a regime, the intermediary would be required to forward any complaints regarding content to its creator/ poster. A third model is the Horizontal Approach wherein different levels of immunity are granted dependent on the activity at hand. A classic example is the E-Commerce Directive in the EU where almost complete immunity is provided to intermediaries who merely provide technical access to the net (i.e.) a single intermediary liability regime dealing with all types of claims. This is in sharp contrast to the vertical framework offered by the US wherein separate liability regimes exist for

 

(i) copyright claims u/s 512 of DMCA

(ii) trademark claims u/s 32 (2) of the Lanham Act and

(ii) non-intellectual property rights claims u/s 230 of the Communications Decency Act.

It also needs to be mentioned here that across the globe, there is a  developing consensus over principles of intermediary liability in the form of the Manila Principles endorsed by the UN Special Rapporteur on the Freedom of Expression.

 

The Indian Response : Section 79 and Safe-Harbour Protection

Before the IT (Amendment) Act, 2008 was passed, Section 79 dealing with liability of intermediaries was ambiguously worded. Thus in Sanjay Kumar Kedia v. Narcotics Control Bureau,the petitioner’s plea to escape liability under the old Section 79 was rejected by the Court as the petitioner’s company had actual knowledge of the mala fideactions of sale of ‘psychotropic substance ‘ through their website which violated the Narcotic Drugs and Psychotropic Substances Act, 1985. On this ground, they were not considered to fall within the immunity provision provided u/S. 79 of the IT Act.

 

It needs to be mentioned here that the landmark judgement in this regard is the order of the Supreme Court dated 10 December 2019 in Google India Pvt. Ltd v. Vishakha Industries & Anr. (2019 (4) KLT OnLine 3115 (SC).The case pertained to a criminal defamation filed by Vishakha Industries against an individual who was publishing articles under the name ‘Ban Asbestos’ in a group. Google, which was involved in hosting the group, was made a party to the defamation case and allegations were raised to the effect that Google failed to take down the article even after multiple requests of the company. Thereupon, Google approached the High Court of Andhra Pradesh with a prayer to quash the complaint, raising the contention that it was not liable for the publications made in the group, being an intermediary u/S.79. The plea of Google was rejected by the High Court stating that being an intermediary it failed to take action to bring down the defamatory posts and hence it could not claim exemption u/S.79. The matter went in appeal before the Supreme Court wherein it was held that intermediaries were not protected u/S.79 from defamation prior to the amendment and that hence Google has to undergo trial in the above criminal defamation case. However, following the amendment, an umbrella protection is provided to intermediaries (i.e.) they are provided conditional immunity under the due diligence doctrine irrespective of the nature of the content. Whether an intermediary could claim safe harbour hinges largely on two factors:-

 

(a) Actual knowledge about the unlawful act

Under the earlier Information Technology (Intermediaries Guidelines) Rules, 2011 (which have been superseded by the 2021 Rules), an intermediary was required to remove unlawful content on its platform once it acquired knowledge of such content by itself or from an aggrieved individual. However, the standard of “actual knowledge” was neither tested nor defined in the IT Act, leading to uncertainty as to when intermediaries were under duty to remove such alleged defamatory content. For instance, were they required to remove content if a single private individual complained against it ?

 

This burden on intermediaries continued till 2015 when the Supreme Court read down ‘actual knowledge’ in Shreya Singhal v. Union of India(2015 (2) KLT 1 (SC)) to state that it can be attributed to an intermediary only when there is a court order or notification from an appropriate government authority apprising the intermediary of unlawful content over its platform. Put it a bit differently, the Shreya Singhalcase has moved India’s intermediate liability regime forward by removing the burden of identifying defamatory content from intermediaries. This clearly implies that the intermediary is not under an obligation to observe self regulation and that it would not lose safe harbour protection if it refuses to take down unlawful content on its platform pursuant to a written intimation by a private party.

 

Also worth mentioning here is the ruling of the Division Bench of the Delhi High Court in Super Cassettes Industries Ltd. v. Myspace Inc. & Anr.that intermediaries could be held liable only when they have actual or specific knowledge and not constructive knowledge of the existence of infringing content on their website and do not take any steps to have such content removed. It was also held that insertion of advertisements and modification of content formats by an intermediary via an automated process and without manual intervention does not result in the intermediary being deemed to have actual knowledge of the content hosted. The Delhi High Court also held that intermediaries are not obligated to continuously identify and remove each and every piece of content being uploaded on their websites and that they cannot be obligated to pre-screen and verify all such content that is stored on their websites.

 

However, despite the ruling in Shreya Singhal, the Supreme Court in Sabu Mathew George v. Union of India(2018 (1) KLT OnLine 3114 (SC)) imposed an obligation upon the intermediaries to proactively filter their platforms for illegal content. The case related to a plea seeking ban on advertisements related to pre-natal sex determination from search engines.

 

(b) Compliance with due diligence obligations and observing all other guidelines prescribed by the Central Government in relation to its duties

The use of the phrase “due diligence” in the law has never been popular with the industry because it is open-ended and leaves considerable discretion with the judiciary.

To be specific, upon a composite reading of S.79(2) and (3) the conditionalities subject to which a

(i)   The exemption applies only if the function of the intermediary is limited to providing access to a communication system over which information is transmitted, temporarily stored or hosted

(ii)  The exemption applies only if the intermediary does not initiate the transmission nor selects the receiver of the transmission nor selects or modifies the information contained in the transmission.

 (iii)  The exemption applies only if the intermediary observes due diligence.

(iv) The exemption is not available if the intermediary has conspired, abetted or induced the commission of an unlawful act.

(v)  The exemption is not available if the intermediary fails to expeditiously remove or disable access to material upon receiving actual knowledge that any information residing in or connected to a computer resource controlled by that intermediary is being used to commit an unlawful act.

Potential areas of liability of online intermediaries

The potential areas of liability fall under the following broad categories:-

 

(a) Defamatory, private and libellous content (in fact jurisprudence in such cases dates back to Cubby v. Compuserve, a libel hosting case decided in 1991. It also needs to be mentioned here that private content includes not only pictures taken in intimate situations, but also other materials infringing various rights of privacy – information concerning family situation, financial/tax statements being classic examples)

 

(b) Trademark and copyright infringements

 

(c) Material that can be labelled as pornographic, racist or terrorist (In the Indian context, a classic case in this regard was the blocking by CERT-IN (Computer Emergency Response Team) in 2003 of an obscure mailing list run by a banned militant outfit – the Hynniewtrep National Liberation Council of the Khasi tribe in Meghalaya. Ironically, the popularity and visibility of the list went up by leaps and bounds despite it being blocked by all ISPs and many could still see the list via email or proxy surfing)

 

(d) Misrepresentation (viz) false information disseminated using online facilities that causes damage to a third party.

 

2021 Rules and Offending Content

The 2021 Rules issued under the IT Act, 2000 are intended to curb harmful content on social media. Expanding the ambit of the definition of user (under Rule 2(1)(x)) , defining the concept of grievance (under Rule 2(1)(j)) and stipulating that an intermediary shall by way of its rules and regulations, privacy policy or user agreement inter aliainform its users that they must not host, display, upload, modify, publish, transmit, store, update or share any information that is defamatory, invasive of another’s privacy, libellous, racially or ethnically objectionable etc. are the highlights of the 2021 Rules. In a step up from the 2011 Rules, this prohibited information now includes content which is published for financial gain but is patently false or information which is aimed at gender based harassment.

 

Offending content must be taken down within 36 hours of a court order and government notification to do so and government requests for data disclosure need to be met within 72 hours for investigation, detection or prevention of cyber security offences. Intermediaries must disable within 24 hours of a user complaint any content that depicts non-consensual nudity and sexual acts including morphed images transmitted with malicious intent.

 

Another important change is the requirement to appoint a grievance officer (also prescribed under the 2011 Rules) and publish his name and contact details prominently on its website. Building on the 2011 Rules, the 2021 Rules make it obligatory upon the grievance officer to acknowledge any order, notice or direction issued by a court or a governmental agency or a complaint received from an individual user or victim. Further a complaint must be disposed of within 15 days from its receipt (as opposed to one month under the 2011 Rules).

 

Significant Social Media Intermediaries are required to create a more accountable take down system, special expedited take down procedures for revenge porn cases, appointment of India based compliance officers (Chief compliance Officer under Rule 4(1)(a), nodal contact person under Rule 4(1)(b) and Resident Grievance Officer under Rule 4(1)(c)), identification of a physical address for service of legal notices etc. It is also stipulated that an SSMI providing chiefly messaging services must enable the identification of the first originator of the information on its computer resource - a promising way to control malicious information. It must deploy technology based measures (including automated tools) to proactively identify information that depicts any act or simulation in any form depicting rape, child sexual abuse or conduct - whether explicit or implicit. It must also appoint a senior employee, who would be criminally liable for non-compliance. As per Rule 7, an intermediary would forfeit exemption from liability enjoyed by it under the law if it were to fail to observe its obligations for removal/access disablement of offending content despite a court order to that effect. This makes the intermediary liable for punishment under any law for the time being in force (including IPC). On May 26, 2021, the Government of India issued a circular enquiring about compliance with the rules by all SSMIs.

 

 It is worth mentioning here that while the IT Act did not originally envisage regulation of digital media, the 2021 Rules impose various obligations on digital media entities which carry out systematic business activity of making content available within India. Even foreign news publishers with an online presence in India shall be regulated by the prescribed Code of Ethics.

 

Cyber Defamation and Associated Jurisprudence

No discussion on removal of offending content from cyberspace will be complete without an overview of the rich jurisprudence associated with cyber defamation-popularly and colloquially referred to as trolls. Cyber defamation occurs when a computer connected to the net is used as a tool or a medium to defame a person or an entity. Internet defamation is distinguished from its less pervasive cousins in terms of its potential to damage the reputation of individuals and corporations by......... its interactive nature, its potential for being taken at face value and its absolute and immediate worldwide ubiquity and accessibility .1

 

Publication of a defamatory statement against persons on social networking sites such as Facebook, sending e-mails containing defamatory content about a person would all fall within its ambit. Attacks from competitors, disgruntled employees, unhappy customers and even extortionists are classic examples. And they appear in a variety of forms- ranging from tweets, reviews and blogs to gripe sites and even false revisions to Wikipedia.

 

A classic reported case in recent times is the Gurugram incident in which a 12^th standard boy committed suicide when a girl posted an Instagram story where she accused him of rape. The accused was pronounced guilty by the court of Instagram, costing him his life. It also needs to be mentioned here that opinions are not defamatory statements. But at times, a few opinions are considered as facts by courts of law if they have caused an actual damage to another party. Moreover, if a person merely writes defamatory content but does not publish or communicate it to others, the offence of defamation may not hold.2

 

Needless to say, the primary goal for the abused party in such cases is to get the substance expelled from the net. The liability in these instances rests on the author as well as on the service provider/intermediary subject to S.79 of the IT Act. But criticisms are galore that while newspapers and broadcasters have always operated under the threat of legal liability for defamation, intermediaries have escaped liability despite behaving as publishers because of the immunity offered by S.79. Sharing, liking, re tweeting and commenting may be taken as re-publication of defamatory content. To put it a bit differently, a John Doe always lurks around in cyber space. Add to this the effects of morphing and fake video and the picture is complete. Many think that deleting a story or post afterwards would be enough, but internet keeps records and they could held responsible for reposting serious negative content.

Cyber defamation is a civil as well as a criminal proceeding. The relevant provision on the criminal side is Section 499 IPC. More over Section 469 of the IPC (forgery for the purpose of harming reputation) has been amended by the IT Act to include ‘electronic record forged’. Similarly Section 503 of the IPC deals with the offence of criminal intimidation by use of e-mails and other electronic means of communication for threatening or intimidating any person or his property or reputation. It needs to be mentioned here that IPC does not afford truth as an absolute defence.

 

The Delhi High Court has observed3 that “ given the wide definition of the words documents and evidence in the amended Section 3 of Evidence Act read with Sections 2 (o) and (t) of IT Act, there can be no doubt that an electronic record is a document.” The same has been observed by the Supreme Court also.4 however, in online defamation, an enormous test is to gather and save the computerized proof and to demonstrate their authenticity. If there should arise an occurrence of defamation on Whatsapp, Instagram etc., demonstrating the distribution of the disparaging material may require proper criminological methodology for safeguarding and validating electronic proof. In this connection, it is also noteworthy that on the internet, a fresh cause of action would arise for every moment the content is left online or reposted. This would result in a multiplicity of suits and harassment to the defendants. Recognizing this, the Delhi High Court5 has ruled that the mere continued presence of the defamatory material or article on a website should not give rise to a continuous cause of action.

 

Special reference needs to be made of Section 66A of the IT Act (which pertained to sending of offensive messages) that was quashed by the Supreme Court in Shreya Singhal v. Union of India (2015 (2) KLT 1 (SC). In the said case, the Supreme Court recognized that the section had been wrongly used to secure convictions under defamation law. It held that the section was never meant to address defamation because it makes no mention of injury to reputation.

 

However it needs to be pointed out that criminal punishment for defamation is often considered incompatible with democratic ideals. Amnesty International, for instance, in its submission to the Law Commission of India in 2014 has stated that India’s criminal defamation laws breach its obligations under international law and can have a chilling effect on legitimate expression.

 

The first ever case on cyber defamation was SMC Pneumatics (India) Pvt. Ltd v. Jogesh Kwatrawherein a disgruntled employee sent derogatory and defamatory emails to the company’s subsidiaries all over the world with an intent to defame the company along with its managing director. The High Court of Delhi granted ex-partead interim injunction restraining the defendant from defaming the plaintiff in cyberspace.

 

In Kalandi Charan Lenka v. State of Odisha, the petitioner was stalked online and obscene messages were sent to the friends by the culprit with an intention to defame the petitioner. The High Court of Orissa held that the act of the accused falls under the ambit of cyber defamation. Similarly in M/s Spentex Industries Ltd and Anr v. Pulak Chowdhary, the petitioner filed for injunction along with recovery of damages for loss of reputation and business due to defamatory emails sent by the defendant. The Delhi District Court decreed that the plaintiff be awarded 1/10^th of the cost and that the defendant is restrained from making false and defamatory statements.

 

Another case pertaining to defamatory material on intermediary website was Nirmaljeet Singh Narula v. Yashwant Sinha wherein a suit was filed against a news portal alleging that freedom of press was being misused by the defendants and its sole agenda was to defame the plaintiff. The court granted a conditional injunction. In fact, this was the first case in the country where IT (Intermediary Guidelines) Rules 2011 were relied upon to enforce a 36 hour deadline rule (failing which the Registrar was directed to block the website from public access in India).

 

In Pepsi Co India Holdings Pvt Ltd v. Facebook Inc,the plaintiff company moved the Delhi High Court praying for grant of an ex parteinterim injunction against Facebook, You Tube and others to remove, take down or block/restrict access to the URLs/links for allegedly hosting a video uploaded by an anonymous person who claimed that the product of the plaintiff was harmful as it contained plastic. The High Court gave a direction to the defendants to block the URLs/weblinks or any other video which was similar and the ones which were mentioned in the list of documents filed by the plaintiff. However the case was dismissed as withdrawn on 02/03/2020 after the parties arrived at a settlement.

 

In You Tube LLC v. Geeta Shrof, an appeal arose before the Delhi High Court as a consequence of noncompliance of an injunction order passed by the trial Court which had directed the appellant to remove an allegedly offensive post. The Court held that the appellant had not challenged the injunction order and therefore it had attained finality.

 

Recently in the case of Swami Ramdev and Anr v. Facebook Inc. And Ors, an order has been passed to remove all defamatory content posted online against yoga guru Baba Ramdev dependent on a book named “Godman to Tycoon – the untold story of Baba Ramdev” without any territorial limit. Facebook however has filed an appeal in the Division Bench of the Delhi High Court, contending among other grounds that the global takedown order interferes with defamation laws of other countries and undermines the immunities granted to them in other jurisdictions.

 

Mention must also be made of the Delhi High Court order inFrank Finn Management Consultants v. Subhash Motwani and Anotherwherein Section 19 of the Civil Procedure Code was invoked to assume jurisdiction over a defendant for publishing defamatory material in a magazine outside Delhi of grounds that its availability online implied publication all over. This raised many eyebrows stating that most internet users across the world will be compelled to tailor their content to the standards of the least tolerant regulator to avoid liability.

 

The ‘Art of Living’ Case (Vyakti Vikas Kendra, India Public Charitable Trust Thr Trustee Mahesh Gupta and Ors. v. Jitender Bagga and Anr.) is a typical example of how vulnerable public figures in India are to cyber defamation. The allegation was that defendant no.1 (Mr.Jitender Bagga) was indiscriminately sending emails and publishing al large number of blog posts making abusive references towards Sri Sri Ravi Shankar. Delhi High Court in this case first held Google (defendant no. 2) to be an intermediary within the definition of Section 2(1)(w) and 79 of the IT Act. Google was directed to remove all defamatory contents about the plaintiffs posted by defendant no.1 from its website www.blogger.com as well as all the links containing the defamatory content within 36 hours from the date of knowledge of the order passed by the Court. Defendant No. 1 was also restrained from sending any such emails or posting any material over the net having a direct or indirect reference to Sri Sri Ravi Shankar.

 

Mention needs to be made here of the writ of mandamus filed by animal rights activist Janani Krishnamurthy to link adhaar number with social media accounts as she was being trolled and harassed on Facebook. Her PIL was linked with the PIL filed by Antony Clement Rubin (a member of the Jallikattu Monitoring Committee which had been formed to make sure that bulls are not ill-treated during Jallikattu event). The Madras High Court rejected the possibility of linking adhaar to social media accounts and instead chose to expand the scope of the case to deal with issues around intermediary liability etc.

 

Another PIL worth special reference is the one filed by S.Muthukumar praying for imposition of a ban on the download and use of the mobile application Tik Tok which allegedly hosted explicit content that degraded culture, encouraged pornography and adversely affected teenagers. The Madurai Bench of the Madras High Court issued an ex parteinterim order on April 3, 2019 directing the authorities to ban the download of the said app. Before issuing the ban, the Court did not consider Tik Tok’s intermediary status as per IT Act. Subsequently, an appeal was filed by Bytedance (parent company of Tik Tok) before the Supreme Court which directed the Madras High Court to decide the matter by April 24,2019. After considering the reply filed by Tik Tok as an undertaking that inappropriate content would be removed from its platform, the Court vacated its order banning Tik Tok.6

 

Recommended Strategic Responses for victims of Cyber Defamation

The classic recommended responses are:-

 

(i) Do nothing

If the online content appears insignificant, consider letting it run a short and quiet course by ignoring it. Drawing attention to an online content that may not be taken seriously may only lead to further attention and negative online publicity.

 

(ii) Respond online

If the online statement is legitimate criticism, think about publically responding and acknowledging your efforts to correct any problems. Alternatively you can rebut false or defamatory statements with your own posts ( in consultation with online reputation specialists if needed)

 

(c)Contact the poster

Send a friendly but firm e-mail / letter to the author asking that they immediately correct, modify or remove the statement. But the author may not be inclined to act without threat of legal action.

 

(d) Send a Cease & Desist Letter

 

(e) Request the host website to remove the statement

Explain that the statement in question is false and therefore likely to be in violation of the site’s terms of use.

 

(f) File a law suit (often utilising the services of a cyber investigator who can try to determine the IP address of unknown authors - an information which can then be used to issue subpoenas for subscriber details to ISPs)

 

Technical Challenges in Removing Offending Content

The complexity of this scenario is amply clear from the words of Justice Anup Jairam Bhambhani of the Delhi High Court while delivering a judgement on April 20, 2021 laying down the procedure for removal of offending content from net :

 

“The internet never sleeps and the internet never forgets. The true enormity of this fact has dawned over the course of hearings conducted in the present matter when it transpired that despite orders of this Court, even the respondents who were willing to comply with directions issued to remove offending content from the world-wide-web, expressed their inability to fully and effectively remove it in compliance with court directions, while errant parties merrily continued to re-post and re-direct such content from one web site to another and from one online platform to another, thereby cocking-a-snook at directions issued against them in pending legal proceedings...... the Court according perceived that the issue of making effective and implementable orders in relation to a grievance arising from offending content placed on the world-wide-web needed to be examined closely and a solution to the problem needed to be crafted out so that legal proceedings of the nature faced by this Court did not become futile. The Court cannot permit itself to resign to the cat-and –mouse game of errant parties evading court orders by reposting offending content.....in an act of defiance and contumacy.”

 

Needless to say, migration of content as well as technical feasibility of filtering of defamatory contents pose insurmountable challenges. A classic instance within the framework of which these questions can perhaps be discussed is the Blue Whale Challenge. The notorious game that targetted young children to commit suicide is reported to have originated from Russia and hit India in 2017. The Government of India banned the game from access within the country, but the question of technical feasibility to implement the ban loomed large. For an intermediary, the game was not found on an exclusive website or app that can be blocked, but used encrypted communication channels through social media or direct messaging service. Rendering the social account inactive on pages where it sneaks in was easier said than done.

 

Through a technique called photo DNA profiling (that uses hash algorithm as it will have the same hash value if the content is same and thereafter can be blocked by contacting the concerned service provider) was suggested, it needed multi-stakeholder action. However, it needs to be mentioned here that such intermediaries on whose sites a third party posts a Blue Whale link would not be held liable unless there is actual knowledge and/or conspiracy/intention to commit the crime (provided it has followed due diligence norms). Similar were the technical challenges in blocking child pornographic websites despite it being an offence u/s 67 B of IT Act. A silver line in the horizon however is the fact that de-indexing of offending content globally does not require the search engine to take any steps around the world, but only to take steps where its search engine is controlled. This has been reiterated by the Supreme Court of Canada.7

 

Litigations galore

Special reference needs to be made here of the plea moved by one Amit Acharya in the Delhi High Court against noncompliance by Twitter with the 2021 Rules and failure on their behalf to appoint Resident Grievance Officer, Nodal Officer and Chief Compliance Officer. The plea elaborated that as a subscriber and user of Twitter, while scrolling his Twitter on May 26, 2021 he found allegedly defamatory, false and untrue tweets by two individuals, but found no details of the Resident Grievance Officer on the page and thus was deprived of his statutory right to lodge a complaint. The Delhi High Court observed that the IT Rules if not stayed will have to be obeyed by Twitter India and other such social media platforms.

Mention must also be made of a petition filed in the Kerala High Court by Praveen Arimbrathodiyil, a free and open- source software (FOSS) developer and a volunteer member of the Free Software Community of India (FSCI) praying to quash Part II of the 2021 Rules. The petition has been admitted and notice has been issued to the respondents. The main grounds in the petition are:

 

(a) The 2021 Rules place unreasonable restrictions on users in expressing themselves online

(b)  The terms used in the Rules are vague and ambiguous

(c)  The Rules seek to undermine end to end encryption which is a sub set of the fundamental right to privacy as enshrined in the Puttaswamy judgement

(d)   The Rules draw no intelligible differentia between not-for-profit  FOSS communities and for profit proprietary companies

(e)  The Rules are in contravention to the decision in Shreya Singhal v. Union of India

(e) The Rules are a delegated legislation and are ultra viresas they are inconsistent with the parent legislation (viz) the IT Act, 2000.

 

In another case filed by Live Law challenging Part III of the Rules, the Kerala High Court restrained the state from taking any coercive action for non compliance thereof. The contention in the petition was that Part III made it mandatory for publishers to comply with a Code of Ethics that was both vague and overbroad and that it imposed unconstitutional three- tiered complaints and adjudication structure upon publishers, which would make the executive both complainant and judge on vital free speech questions involving blocking and taking down of online material. Meanwhile, a petition has been filed in the Delhi High Court by Quint Digital Media Ltd (which runs the digital news website The Quint) challenging the guidelines.

 

Whatsapp has also moved the Delhi High Court urging to declare Rule 4(2) as unconstitutional, ultra viresthe IT Act and illegal and alleging that the Rules allow message tracing without judicial review. The social media giant cautioned that traceability can be spoofed or modified, leading to new ways for people to be framed for things they did not say or do. The plea also stated that citizens will not speak freely for fear that their private communications will be traced and used against them. Journalists could be at risk of retaliation for investigating issues that may be unpopular whereas activists could be targeted for discussing certain rights and criticising policies. Moreover, the traceability clause would force private companies to collect and store who-said-what and who-shared-what data for billions of messages daily just for the requirement of law enforcing agencies. Keeping a fingerprint of every message sent on Whatsapp would break end-to-end encryption and undermine the right to privacy. Traceability inverts the way law enforcement typically investigates crimes and mandates a new form of massive surveillance. However, the Ministry of Electronics and Information Technology was of the viewpoint that Whatsapp’s challenge at the very last moment- on May 25,2021, the final date of compliance- was an unfortunate attempt to prevent the same from coming into effect.

 

The Government was also quick to react that the platform will be liable to disclose the originator of the message only for prevention, detection, investigation or prosecution of an offence related to sovereignty and integrity of India, the security of the state or public order. According to Government sources, GoI is committed to ensure right of privacy, but at the same time it is the responsibility of the Government to ensure national security. GoI therefore contends that none of the measures under the new rules would impact functioning of Whatsapp in any manner and that for common users, there will be no impact.

 

Conclusion

With the enactment of the 2021 Rules, the Central Government has sharpened and expanded various aspects of the liabilities and obligations cast upon intermediaries to deal with unlawful content. The Rules are broader in scope than the 2018 draft Rules. Faced with the conflicting scenarios presented by social media- its immense popularity on the one hand and the growing concern that the content can be defamatory, deceptive, paedophilic, hateful, inflammatory or otherwise harmful on the other hand, the authorities have stepped in to make sure that the delicate balance does not go wrong by prescribing 16 due diligence steps to be followed by intermediaries.

 

Recognizing that it is imperative to take immediate action (as any delay could render the same as ineffective and futile), timelines for disablement of access to prima facie unlawful material have been effectively reduced from those specified in the 2011 Rules. Mention needs to be made here that the 2021 Rules specifically provide that offending content may be removed in the first instance, giving to any interested person as specified in Rule 4(8) the liberty to object to such removal and to request for reinstatement of the removed content. This has been provided in the Rules as it affords a more fair and just balance between the irreparable harm that may be caused by retaining offending content on the world-wide-web and the right of another person to seek reinstatement of the content by challenging its removal.

 

Rule 4(4) requires intermediaries to display a notice to any user attempting to access information identical in content to those that have previously been removed that such information has been access-disabled. The second proviso to Rule 4(4) contemplates implementation by a SSMI of appropriate human oversight of measures deployed under this sub-rule and periodic review of automated tools so deployed.

 

However, we must also recognize that it is too onerous and impractical for intermediaries to keep a lookout for offending content, particularly when it can resurface in various disguises and corrupted avatars at the instance of mischief mongers on a continuous basis, given the stark reality that a search engine is unable to appreciate the offending nature of content appearing in a different context. Despite these technical difficulties in the backdrop of the internet, it needs to be emphasized that if offending content cannot be completely removed, it can be made unavailable and inaccessible by de-indexing and de-referencing it from the search results of the most widely used search engines. Needless to say, for an order directing removal or access disablement of offending content to be effective, a search engine must block results throughout the world. The need of the hour is to harness technological tools to ensure that anonymity, seclusion of one’s own space and privacy which are the hallmarks of cyberspace are not misused – making use of the anarchical nature of the net- to settle scores, at the same time ensuring that freedom of speech is by no means compromised or undermined. The choice before the nation, its lawmakers and citizens is clear.

 

 References

1   “Electronic crime- it is not only the big end of town that should be worried”
 Hannan M and Blunde B, We- B Centre & Edith Cowan University, 2004, pp 1-9

2.  http://cyberdefamation.in/popular-cyber-defamation-cases-india/

3.  “ A critical study on cyber defamation and liability of ISPs”, T. Pradeep and
Aswathy Rajan , International Journal of Pure and Applied Mathematics Vol 119 No 17, 2018 pp 1717-1727.

4.  “Intermediary Liability in India”, Pritika Rai Advani, Economic & political Weekly, Vol XLVIII No 50 , December 14,2013

5.  “ Cyber Defamation and Liabilities of Internet Service Providers and Intermediary in India & UK”, Vivek Kumar Verma, www.corporatrix.wordpress.com

6.  Avnish Bajaj v. State(2005) 3 Compl. J 364 Del.

7.  “ Indian Defamation Law and Regulation of Online Content”, Sunita Tripathy, Bani Brar and Vasudev Devadasan, Law & Policy Brief, Vol I, Issue II, November 2015.

8.  danielbrantley.com/defamation-and-social-media-how-the-law-has-changed.

9.  Sanjay Kumar Kedia v. Narcotics Control Bureau[ 2010] 1 S.C.R. 555.

10. Nirmaljeet Singh Narula v. Yashwant Sinha(2012 (132) DRJ 370).

11. Shreya Singhal v. Union of India(AIR 2015 SC 1523).

12.  “ Blue whale Challenge: Centre’s call for ban on the game is a good political statement , but it’s not feasible”, First Post 17 August 2017 (Available at http:// www. Firstpost.com/rech/news-analysis/blue-whale-challenge-centres-call-for-ban-on-the-game-is-a-good-political-statement-but-its-not-feasible-3939123.html).

13.Notification issued by the Ministry of Electronics and Information Technology in exercise of powers conferred by subsection (1) clauses (z) and (zg) of subsection (2) of Section 87 of the Information Technology Act, 2000

14.Digital News Media Rules : Third Challenge Brought to Court By the Quint, Arpan Chaturvedi, https:// www.bloomerbergquint.com, March 2021.

(Endnotes)

1   Delhi High Court in Tata Sons Limited v. Greenpeace International .

2   Rohini Singh v. State of Gujarat.

3   Dharambir v. C.B.I. (2011).

4   P. Gopalakrishnan v. State of Kerala(2019).

5.  Khawar Butt v. Asif Nazir Mir.

6.  On June 29, 2020, India banned TikTok along with 117 other Chinese apps, in the wake of a violent border dispute with China.

7   Google Inc. v. Equustek Solutions Inc.

Effect of Covid-19 on Women and Children in India

(By Parvathy Menon, 5th Sem 3rd year LL.B., Government Law College, Ernakulam))

 

The Strike of COVID-19 is what introduced the term ‘Pandemic’ to a majority of the current population of the world. The last time a pandemic, or a worldwide epidemic hit the world, was an entire century back, at a time when most of the current population was not even born. However, the word pandemic has now been incorporated into the daily vocabulary of 7.8 billion people.

 

Now that we are familiar with what the word pandemic stands for, the world is slowly opening its eyes to the fact that there have been other dangerous ‘diseases’ plaguing the world over the years. One of the main concerns, out of all these, is Violence Against Women and Children.

 

Violence against Women and Children has been a concern all around the world. The recent epidemics, whether it be Ebola or Zika, has made it clear that pandemics increase the occurrence of Violence on Women and Children. It was predicted that a global pandemic may see a never before seen surge in such Violence. The pandemic period truly lived up to this name.

 

All over the globe, statistics show that more reports and complaints of Domestic abuse are being filed during the pandemic period, whether it be in Australia or the US. The case of India is, unsurprisingly, no different. As early as June 2020, the NCW (National Commission for Women) reported that the domestic violence being reported was 2.5 times the normal rate. During the 68 day period from March 25th 2020 to May 31st 2020, the NCW reported to have received 1,477 complaints of domestic abuse.¹ This also marked the most number of complaints received in the same period from March to May in the last 10 years.² The rate has only seen a sharp incline with a total of 23,722 cases being registered with the NCW in 2020³. What are the reasons for such an alarming contingency?

 

The answer is intense stress, job uncertainty, mobility curb and health anxieties.

 

Out of these, the Mobility curb enforced by authorities has taken a major toll on the mental health of adults and children alike. The frustration of being stuck at home, or in worse cases, the questions of an unsure future manifest as domestic abuse. Pent up frustration is finding outlets in such violent and abusive acts. Women also form the majority of those who suffered job losses due to the pandemic. The domestic abuse, along with such stress, results in major mental health issues.

 

In the meantime, children are also being affected to the same degree, if not a higher degree, by this unprecedented pandemic. Being the high risk age group, children have been caged inside their homes for more than a year. Kids, who should have been spending the best time of their lives among their peers, are being confined to their homes. All their social interactions have come to a stand still and the only company they have is in the form of online classes inside the four borders of a laptop. All these factors are invariably causing physical, mental and emotional ailments in the future generation.

 

In the case of the children, another concern, seen more in the rural areas, is an increase in Child marriages⁴. The decrease in the reach of authorities, both Governmental as well as private, has given people ample chance to engage in child marriage. Rural families whose future are uncertain due to the pandemic are marrying their daughters off as soon as possible due to the tendency that still exists in several regions to consider girl children as a burden to the family. This in turn results in higher domestic abuse, thus giving rise to a vicious, never ending cycle. Though unintentionally, adults who have been stuck at home are also, involuntarily, taking out their frustration on the children at home. Not to forget the situation of homes of regular abusers where job and school had been the safe haven for the women and children of the family. Those victims are stuck at home with no way out and at times no way to report as well owing to the constant looming presence of the abuser. Due to the contributions of all these factors, child abuse has also been at an all time high with 92,000 calls being made to the CHILDLINE within the first 11 days of lockdown.⁵

 

These figures are alarming when you realise that this is the situation of the future generation. Children are at the crossroads of their life where they are facing the same mental stress and anxiety at least 20 years before they are to be expected. The pandemic is also affecting the future generation physically, which will see a rise in adults with more ailments that is normal.

 

The most concerning factor however, out of all these figures and data is that, these are only the ones that have been reported. With everyone stuck at home, the chance for victims to lodge a complaint or report abuse is really slim. The reach of governmental and private authorities set up to protect the victims has also been seriously limited by the onslaught of the pandemic. This is probably why the figure saw a sudden increase right after the whatsapp helpline number of NCW and mobile alert systems were set up mid-pandemic.

 

While violence is at an all time high in the case of women and children, there are also increasing concerns of women’s and children’s health. Pregnancy poses a much bigger concern than is necessary due to the pandemic and so does postpartum care, both for the mother as well as the baby.

 

The pandemic, along with throwing an entire generation into the eye of the tornado without so much as a siren, also opened the eyes of the world. We need to question ourselves as to how we let each one of us down with the above stated statistics. A fraction of the figure which has been stated above can be done away with so much as a tiny mental health check in once in a while. However it is the cases of violence that need to be a cause of concern. The answer to What Next? lies in the question How?. How is it that we, in the 21st century, are still discussing domestic violence? How did we let it reach the point where Domestic Violence has been dubbed as the ‘Shadow Pandemic’, stalking us without our knowledge? How can we overcome this? What Next?.

 

Foot Notes

1.   Official Site of the National Commission for Women [http://ncwapps.nic.in/].

2.   The Hindu. Data- Domestic Violence complaints at a 10 year high during Covid-19 lockdown.Published on 24th June, 2020.

3.   Statistics on the Official Site of the National Commission for Women [http://ncwapps.nic.in/].

4.   Hindustan Times. Covid-19 has led to a rise in child marriages . Published December 26, 2020.

5.   The Hindu. Coronavirus Lockdown Government. Helpline Receives 92,000 Calls on Child Abuse and Violence in 11 days. Published on April 08, 2020.

Resurrection of Chandi Prasad Uniyal

(By Manu S., Advocate and Senior Central Govt.Standing Counsel, High Court of Kerala)

 

Recovery of excess pay from employees has always been a recurring issue, often leading to long drawn litigations, right from the administrative tribunals leading up to the Apex Court.

Different judgements have been rendered by the Hon’ble Apex Court in the issue and divergence of views/approaches in many judgements were perceptible. A prominent one in the line of precedents on the question of recovery of excess pay, is the judgement of the Apex Court dated 18.12.2014 in State of Punjab v. Rafiq Masih (WhiteWasher)reported in (2015 (1) KLT 429 (SC) which is generally being followed by the high courts and administrative tribunals while deciding such litigations. However, it would be interesting to have a look at the precedential value of the said case, which is often referred as the White Washer’s case.

 

In White Washer’s casea bench of two learned Judges of the Hon’ble Supreme Court disposed a bunch of cases, broadly summarizing a few situations, as a ready reference, wherein recoveries by the employers would be impermissible in law. Interestingly, the high courts as well as the administrative tribunals have been rigorously applying White Washer’s caseby categorizing the cases before them under any one of the broad situations summarized by the two-judge bench therein. It seems that the decision is being followed without deeply analyzing the facts and circumstances and the events leading to the said decision.

 

An important aspect of the case is that there was a reference made by the two-judge bench to a bench of three judges in the same case. This is noted in the following manner by the bench of two Hon’ble Judges-

 

“In view of an apparent difference of views expressed on the one hand in Shyam Babu Verma and Ors. v. Union of India and Ors. 1994 (1) KLT OnLine 1161 (SC) and Sahib Ram v. State of Haryana (1994 (2) KLT OnLine 1150 (SC) and on the other hand in Chandi Prasad Uniyal and Ors. v. State of Uttarakhand and Ors. (2012 (3) KLT SN 121 (C.No.126) SC)
we are of the view that the remaining special leave petitions should be placed before a Bench of Three Judges. The Registry is accordingly directed to place the file of the remaining special leave petitions before the Hon’ble the Chief Justice of India for taking instructions for the constitution of a Bench of three Judges, to adjudicate upon the present controversy”

The three-judge bench which considered the reference passed an order on 28.07.2014, which is reported in (2014 (3) KLT SN 42 (C.No. 52) SC).

 

The three-judge bench analysed the judgements in Shyam Babu Verma as well as Sahib Ram (supra), in which recoveries were interfered with, and held as follows in the order - 

“In our considered view, the observations made by the Court not to recover the excess amount paid to the Appellant-therein were in exercise of its extra-ordinary powers under Article 142 of the Constitution of India which vest the power in this Court to pass equitable orders in the ends of justice.”

 

The judgement in Chandi Prasad Uniyal (supra) was also evaluated by the three-judge bench, which appeared to be in conflict with the judgements in Shyam Babu Vermaand Sahib Ram (supra). The three-judge bench observed as follows regarding the judgement of the two-judge bench in Chandi Prasad Uniyal-

 

“8. In Chandi Prasad Uniyal’s case (supra), a specific issue was raised and canvassed. The issue was whether the Appellant-therein can retain the amount received on the basis of irregular/wrong pay fixation in the absence of any misrepresentation or fraud on his part. The Court after taking into consideration the various decisions of this Court had come to the conclusion that even if by mistake of the employer the amount is paid to the employee and on a later date if the employer after proper determination of the same discovers that the excess payment is made by mistake or negligence, the excess payment so made could be recovered. While holding so this Court observed at paragraphs 14 and 16 as under:

14. We are concerned with the excess payment of public money which is often described as “taxpayers’ money” which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not, maybe due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reason like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

 

16. The Appellant in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the Appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order that excess payment made be recovered from the Appellants salary in12 equal monthly instalments.

 

9. In our view, the law laid down in Chandi Prasad Uniyal’s case, no way conflicts with the observations made by this Court in the other two cases. In those decisions, directions were issued in exercise of the powers of this Court Under Article 142 of the Constitution, but in the subsequent decision this Court Under Article 136 of the Constitution, in laying down the law had dismissed the petition of the employee. This Court in a number of cases had battled with tracing the contours of the provision in Article 136 and 142 of the Constitution of India. Distinctively, although the words employed under the two aforesaid provision speak of the powers of this Court, the former vest a plenary jurisdiction in supreme court in the matter of entertaining and hearing of appeals by granting special leave against any judgment or order made by a Court or Tribunal in any cause or matter. The powers are plenary to the extent that they are paramount to the limitations under the specific provisions for appeal contained in the Constitution or other laws. Article 142 of the Constitution of India, on the other hand is a step ahead of the powers envisaged Under Article 136 of the Constitution of India. It is the exercise of jurisdiction to pass such enforceable decree or order as is necessary for doing ‘complete justice’ in any cause or matter.”

 

The discussion was summed up in the following words-

“Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgments and the latter judgment.”

 

Thus, the three-judge bench unequivocally clarified that the judgments in Shyam Babu Vermaand Sahib Ram are judgments rendered in exercise of the powers under Article 142 of the Constitution and the binding law, as per Article 141 of the Constitution of India, is that laid down in Chandi Prasad Uniyal’ s case.

 

After this clarification, it was held by the bench that the reference was unnecessary and the matters were sent back to the Division Bench without answering the reference.

 

Though the reference can be said to be sent back, the three-judge bench has firmly approved the law laid down in Chandi Prasad Uniyal. Therefore, the view of the two judges’ bench in Chandi Prasad Uniyalthat any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships, but not as a matter of right and that in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment, can be indubitably considered as approved by the three-judge bench in the order reported in 2014 (3) KLT SN 42 (C.No.52) SC).

 

The judgement of the two-judge bench, which is reported in (2015 (1) KLT 429 (SC)is rendered thereafter; and although, the bench of two Hon’ble Judges referred to various judgements in which recovery was interdicted, it is astonishing to note that no reference was made by the bench to the judgement in Chandi Prasad Uniyal, which was approved and held as the correct law by the three- judge bench while considering the reference. The two-judge bench concluded the judgement as follows-

 

“12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

 

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group ‘C’ and Group ‘D’ service).

 

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

 

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

 

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

 

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.”

 

As noted, the above extracted conclusion in the judgement is being generally followed by various high courts and tribunals. However, the  conclusions appear to be in conflict with the principles laid down in Chandi Prasad Uniyal. Even the “exceptions of extreme hardships” recognized in Chandi Prasad Uniyal’s casemay not justify these conclusions.

 

Therefore, it appears that the judgment of the two-judge bench is substantially not in tune with the judgement of a co-equal bench in Chandi Prasad Uniyals case, which has got the stamp of approval of the bench of three judges in the reference order in the very same case. So, the question now is as to whether it is correct to follow the judgement of the two judges bench reported in 2015 (1) KLT 429 (SC)  forgetting the order of the bench of three judges in the same case reported in 2014 (3) KLT SN 42 (C.No. 52) SC).

 

This question came up for consideration before a Division Bench of the High Court of Kerala in two Original Petitions. In the judgement dated 25.09.2020 in O.P.(CAT) 143 of 2020 titled P.K. Ibrahim v. Union of India and Others, the Division Bench noticed the order issued by the three-judge bench in Rafiq Masih (White Washer)and also the judgment in Chandi Prasad Uniyal, and directed the authorities concerned to take a decision on the grievance of the petitioner, keeping the principles in these judgments in mind.

 

Later the same Division Bench again considered the order of the three-judge bench in O.P.(CAT) 18 of 2019 titled Union of India & Ors. v. Akhila Umesh. The Division Bench finally held that the impugned order of the Central Administrative Tribunal, which was rendered relying on the two-judge bench judgment in Rafiq Masih (White Washer), is incorrect. The categorical finding of the bench in paragraph 7 of the judgment dated 5.10.2020 is as follows-

 

“Having considered the rival contentions, we are of the view that the Tribunal went wrong in applying the ratio of the two Judges’ Bench judgment in Rafiq Masih (supra) when a three Judges’ Bench in the very same case had taken the view that the earlier judgment in Chandi Prasad Uniyal (supra) laid down the correct position in law.”

 

Thus, the judgment of the Division Bench in O.P.(CAT) 18 of 2019 has recognized that the dictum in Chandi Prasad Uniyal’s caseis the law to be followed, in the light of the order of the three-judge bench in Rafiq Masih (White Washer) case. Hence, the conclusions drawn by the three-judge bench, reported in 2014 (3) KLT SN 42 (C.No.52) SC) which strangely got overlooked or unnoticed after the judgement of the two-judge bench, reported in 2015 (1) KLT 429 (SC) were referred to and followed by the Division Bench.

 

However, it is concerning to see that the above judgment of the Division Bench of the Hon’ble High Court of Kerala is not seen reported by any journals; and more so, when several benches of the High Court including division benches have disposed of cases drawing parallels to the “few situations, wherein recoveries by the employers, would be impermissible in law” as summarized by the two-judge-bench in Rafiq Masih (White Washer), reported in 2015 (1) KLT 429 (SC) even after the judgment in OP(CAT) 18 of 2019 was rendered.

 

As far as the High Court of Kerala and tribunals as well as authorities situated within its jurisdiction are concerned, the judgment of the Division Bench in O.P.(CAT) 18 of 2019 has virtually led to resurrection of the law in Chandi Prasad Uniyal. Though the judgement is unreported, it will be unfortunate if it goes unnoticed and fades to oblivion like Rafiq Masih (White Washer) – I, as the bench has rightly followed the legal position clarified by the three-judge bench, which has to prevail over Rafiq Masih (White Washer) – IIrendered by a bench of two judges.

 

Yet another question that perpetuates the uncertainty concerning Rafiq Masih (White Washer) – II, is whether the judgment of the two-judge bench can be treated as a precedent and applied universally as ‘law declared by the Supreme Court’under Article 141 of the Constitution of India. To put it differently, a doubt as to whether the parameters laid down by the two-judge bench in para 12 of the judgment is in exercise of extra-ordinary powers under Article 142 of the Constitution of India or not also arises on repeated reading of the judgement.

In this regard, certain factual aspects relating to the decision rendered by the two-judge bench should not go unnoticed. Firstly, it is to be noted that the two-judge bench of the Apex Court was dealing with a bunch of about 250 individual Civil Appeals which were tagged together for having to answer a common issue. Secondly, in para 4 of the judgment dated 18.12.2014, the two-judge bench has framed the issue to be answered in the case, as hereunder:

 

“4.  The issue that we have been required to adjudicate is, whether all the private respondents, against whom an order of recovery (of the excess amount) has been made, should be exempted in law, from the reimbursement of the same to the employer. …”

 

This leaves us with question as to whether the ‘situations of hardship’ postulated in para 12 of the judgment, is limited to the private respondents therein. This question becomes more relevant, while reading the observations made in para 6 of the judgment, which reads: -

 

“6.  In view of the conclusions extracted hereinabove, it will be our endeavor, to lay down the parameters of fact situations, wherein employees, who are beneficiaries of wrongful monetary gains at the hands of the employer, may not be compelled to refund the same. In our considered view, the instant benefit cannot extend to an employee merely on account of the fact, that he was not an accessory to the mistake committed by the employer; or merely because the employee did not furnish any factually incorrect information, on the basis whereof the employer committed the mistake of paying the employee more than what was rightfully due to him; or for that matter, merely because the excessive payment was made to the employee, in absence of any fraud or misrepresentation at the behest of the employee.                                            (emphasised)

 

Thirdly, and to add to it, in para 13 of the judgment, the Court records as hereunder:

“We are informed by the learned counsel representing the appellant - State of Punjab, that all the cases in this bunch of appeals, would undisputedly fall within the first four categories delineated hereinabove. …”

 

One is compelled to assume that the ‘parameters of fact situation’ were laid down by the two-judge bench exclusively with reference to the private respondents in the bunch of Civil Appeals, especially when the above extracted submission of  appellant, State of Punjab  that the private respondents would indisputably fall within the categories postulated by the Court in para 12 of the judgment is noticed.

 

The circumstances leading to Rafiq Masih (White Washer) – II, strongly suggest that the parameters laid down by the two-judge bench, in para 12 of the judgment, is in exercise of extra-ordinary powers under Article 142 of the Constitution of India, which vests the Supreme Court with the power to pass equitable orders for doing complete justice in any cause or matter pending before it.

 

While we can be certain about the resurrection of Chandi Prasad Uniyal in the light of the judgments rendered by the Division Bench of the High Court of Kerala, the uncertainty relating to Rafiq Masih (White Washer) – IIwill remain to be resolved by the Apex Court.

Resurrection of Rights of Auction Purchaser --
A Note on Full Bench Decision, Danish Varghese v. Jancy Danish,
Reported in 2021(1) KLT 631: Is Statutory Bar Not A Bar?

(By R.Surendran, Advocate, High Court of Kerala)

1. In my Article (Published in 2020 (4) KLT Journal Page No.1) on the question of maintainability of Suit for declaration of title and recovery of possession by auction purchaser in court sale, I had expressed a view that the decision in Pattam Khader Khan v. Pattam Sardar Khan(1996 (2) KLT SN 42 (C.No.47) SC) is not the authority on the question of maintainability of a suit for recovery of possession or declaration of title at the instance of an auction purchaser, but legal position settled in Harnandrai Badridas v. Debidutt Bhagwati Prasad (1973 KLT OnLine 1152 (SC)), by a three-Judge Bench continues to hold the correct legal position and binding precedent that such a suit is not maintainable even after the commencement of Act No.104 of 1976.

 

2. The very same question arose before a Full Bench of Kerala High Court, in Danish Varghese v. Jancy Danish, reported in (2021 (1) KLT 631 (F.B.)). The Full Bench considered the following questions of law referred to it by a Division Bench.

 

Point No.A: What is starting point for reckoning one year period under Art.134 of the Limitation Act?

 

Point No.B: Is it mandatory for the auction purchaser to take possession of the property purchased in auction?

 

3. On the Point No.A, the Full Bench, after considering the precedents brought to its notice, held that in case of pendency of consequential proceedings in which Court sale is under challenge, the starting point of limitation period under Art.134 of the Limitation Act may get extended depending on the pendency of such proceedings. Hence sale becomes absolute on the culmination of the proceedings sprouting from the sale, confirmation of sale etc. and this is the starting point of limitation in filing application under S.134 of Limitation Act, 1973. In fact the said legal position was well settled by the Supreme Court in Pattam Khader Khan v. Pattam Sardar Khan & Anr.(1996 (2) KLT SN 42 (C.No. 47) SC) and in United Finance Corporation v. M.S.M.Haneefa (Dead) through Legal Representatives(2017 (1) KLT 500 (SC). There were, in fact, no conflicting decisions on this point after those judgements.

 

4. On the Point No.B, the Full Bench held that delivery of possession, actual or symbolic of the properties sold in execution by the auction purchaser is the natural and normal culmination of sale of immovable property in execution. In the case of sale of undivided rights of the auction purchaser, delivery can be effected by handing over of symbolic possession of the undivided right purchased by the auction purchaser and it was imperative on the part of the decree holder to take possession of the property auctioned by him. If he fails to get possession through execution court, his relief under Order XXI C.P.C. is lost, though his title over the property sold subsists. This position was already settled in Anjaneyan v. Abdul Razak(2008 (1) KLT 119) by a Division Bench and there was no conflicting decision on this point.

 

5. But after answering the above two questions referred to, the Full Bench examined the prime question of reference (See Paragraph No.1 and 34 of the judgement) as Point No.C: If the auction purchaser fails to take delivery of the property within the limitation period as above, is he entitled to file a fresh suit, and if so, what are its limits and appropriate relief which the auction purchaser is entitled to seek?

 

6. The Full Bench, after referring to various decisions of the Apex Court, held in paragraph No.34, that the argument that even after failure to apply for delivery, fresh suit can be filed, is contrary to the Section 47 of C.P.C. Further, it was held that if the relief which could be availed under Order XXI R.95 C.P.C. was barred by limitation, same relief can be sought thereafter by way of a fresh suit will virtually make S.47 C.P.C. redundant, in such cases. The Full Bench also laid down that the decision in Pattam Khader Khan v. Pattam Sardar Khan & Anr.(1996 (2) KLT SN 42 (C.No. 47) SC) cannot be considered to lay down binding precedent of law, in this regard and Balakrishnan v. Malaiyandi Konar (2006 (1) KLT 926 (SC) neither referred to Manikayala Rao v. Narasimhaswami(1966 KLT OnLine 1253 (SC) or precedent in K.R.Lakshminarayana Rao v. New Premier Chemical Industries(2004 (3) KLT OnLine 1232 (SC) which were anterior in time to Balakrishnan’s case. Hence it was held that regarding claims, which arise from the execution discharge and satisfaction of decree, the view laid down in Lakshminarayana Rao’scase and Manikayala Rao’scase should prevail. Even though the three-Judge Bench decision of the Supreme Court in Harnandari Badridas v. Debidutt Bhagwati Prasad & Ors. (1973 KLT OnLine 1152 (SC)  is the prime authority on the point and brought to the notice of the court, the Full Bench did not take support from the said decision.

 

7. But the Full Bench then proceeded further to consider the question, whether the same proposition will apply to claims and/or disputes outside S.47 C.P.C. and which arise from independent cause of action and thereby do not offend S.47 C.P.C.? The question involved is, if for some reason, the auction purchaser is unable to seek for delivery of possession, whether he will be precluded from recovering possession of the property on the strength of title. (See paragraph 35). In para 39, the Full Bench judgement says, “One of the issues which had been referred for consideration is whether a separate suit for recovery of possession was maintainable after the period specified for delivery of possession under Article 134 of the Limitation Act”. In fact this was the question considered in Harnandari Badridas v. Debidutt Bhagwati Prasad & Ors.(1973 KLT OnLine 1152 (SC) and Ganapat Singh (Dead) by LRs v. Kailash Shankar reported in (AIR 1987 SC 1443) and held that separate suit is not maintainable.

 

8. The Full Bench in paragraph 40 held that taking into account the scope of enquiry to be conducted by the Execution Court, which apparently is a power of the Court to permit the auction purchaser to acquire possession of the property, the words “delivery of possession” appearing in Section 47 as well as in Order XXI R.95 of C.P.C. have to be given a narrow meaning. It was further held that if a narrow interpretation is given to the words “delivery of possession”, what is prohibited by filing a separate suit is only an attempt to seek “delivery of possession” as a sequel to court sale and not a suit for possession on the strength of title.

 

9. In fact no reasoning is seen given by the Full Bench for giving a narrow meaning for the phrase “delivery of possession” appearing in Section 47 as well as in Order XXI R.95 of C.P.C. The only reason stated is the ‘scope of enquiry to be conducted by the Execution Court’. Is the scope of enquiry in execution court too limited or short? In view of Rules 97, 98 and 101 of Order XXI of C.P.C., if an obstruction is offered in obtaining possession in an application filed under Order XXI R.95 of C.P.C, the scope of enquiry is very large akin to a full-fledged trial in a suit for recovery of possession. In Order XXI Rule 101 of C.P.C. also there is a bar against institution of separate suit. The order passed by the execution court is treated as a decree as per Rule 103 of Order XXI of C.P.C. and it is appealable under Order XLI Rule 1 of C.P.C. as if it were a decree. Then how can it be said that the scope of enquiry regarding “delivery of possession”, as contemplated in Section 47 as well as in Order XXI R.95 of C.P.C. is too narrow?

 

10. The finding of the Full Bench appears to be on the basis of a distinction proposed to drawn between “delivery of possession consequent to an auction sale” and “suit for recovery of possession on the strength of title vested on the basis of court sale”. In order to draw the distinction the Full Bench relies on Explanation (c) to Article 65 of the schedule to the Limitation Act, 1963, which says that where the suit is by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment debtor who was out of possession. This Explanation is to be understood in the light of Rule 96 of
Order XXI of C.P.C where the mode of execution for delivery of property in occupancy of tenant or other person entitled to possess, is specifically provided. The question of filing a suit for recovery of possession by a purchaser in court sale arises only after taking symbolic delivery as contemplated in Rule 96 of Order XXI of C.P.C. when we read Anjaneyan v. Abdul Razak(2008 (1) KLT 119) and the answer of the Full Bench on Point No.B that in the case of sale of undivided rights of the auction purchaser, delivery can be effected by handing over of symbolic possession of the undivided right purchased by the auction purchaser and it was imperative on the part of the decree holder to take possession of the property auctioned by him. If he fails to get possession through execution court, his relief under Order XXI C.P.C. is lost, though his title over the property sold subsists. Therefore it is to be understood that Explanation (c) to Article 65 of the schedule to the Limitation Act, 1963 applies only to cases where the judgment debtor was out of possession of the property and it was in the possession of tenant, mortgagee or such other person entitled to possess. A suit by auction purchaser for recovery of possession or partition cannot be a substitute for application under Rule 95 of Order XXI of C.P.C.

 

11. The proposition in paragraph No.44 of the Full Bench that as far as an auction purchaser is concerned, he can seek delivery of possession by approaching the execution Court and not by way of a separate suit, but after the period of limitation, to seek delivery of possession, he stands in the position of a title holder of a property and he is entitled to seek possession of the property in accordance with law, appears to be unwarranted as the first two sentences of the paragraph says, “Such an issue has not arisen for consideration in the case on hand. The said right will depend upon the pleadings of the parties and the respective contentions in that regard”. Therefore this part of the Full Bench judgement cannot be the ratio decidendi. The Full Bench was trying to open a new arena for the auction purchasers who failed to take delivery of property under Rule 95 of Order XXI of C.P.C. as against judgement debtors in possession of property. In fact, there is no change in the status of the auction purchaser after the expiry of one year from the date on which the sale has become absolute.

 

12. Moreover, it was observed by the Apex Court in Ganapat Singh (Dead) by LRs v. Kailash Shankar reported in AIR 1987 SC 1443, “It may be that before the amendment of Section 47 of the Code, an auction purchaser could file a suit for recovery of possession of the property within 12 years from the date of sale, but in view of the amendment of Section 47 of the Code such a suit cannot be filed.” Hence the new proposition laid down by the Full Bench that after the period of limitation to seek delivery of possession, the auction purchaser stands in the position of a title holder of a property and he is entitled to seek possession of the property in accordance with law, is against the decision in Ganapat Singh (Dead) by LRs v. Kailash Shankar. It is also against the judgment in K.R.Lakshminarayana Rao v. New Premier Chemical Industries(2004 (3) KLT OnLine 1232 (SC) where the Supreme Court considered the question of maintainability of a suit filed by an auction purchaser for declaration of title and recovery of possession upon his failure to make an application under Order XXI Rule 95 of C.P.C. and held that such a suit is not maintainable.

 

13. The Full Bench in paragraph No.44 of the judgement observed that in the judgments in Ganapat Singh(supra) and K.R.Lakshminarayana Rao(supra), the Apex Court had only considered the question whether Art.136 would apply to a petition under Order XXI R.95 but has not considered whether a suit for possession on the strength of title would be maintainable or not. A close reading of paragraph No.9 of decision in K.R.Lakshminarayana Rao v. New Premier Chemical Industries(2004 (3) KLT OnLine 1232 (SC) makes it abundantly clear that the Apex Court took the view that an application for delivery of possession should be filed by the auction purchaser under Order XXI R.95 within the time prescribed. The Schedule appended to the Limitation Act, 1963 having provided for a specific provision prescribing limitation for filing appropriate application for recovery of possession of any property in possession of the judgement debtor, it is idle to contend that Article 136 of Limitation Act would apply. That was a case where a suit for declaration of title and recovery of possession filed by auction purchaser was dismissed as not maintainable.

 

14. Even though the Full Bench in Paragraph No.24, initially thought of deciding the question in the light of Section 12 of C.P.C., it is not seen considered or decided in the judgement. As per section 12 of C.P.C. there is a specific bar to further suit. Where a plaintiff is precluded from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any court to which the C.P.C. applies. The only cause of action for suit for recovery of possession by an auction purchaser on the strength of his title could be the sale in the execution as per which the title is vested on him and nothing else.

 

15. There is yet another bar under Section 11 of C.P.C also in a suit for recovery of possession against the judgement debtor in possession of property. From Explanation IV read with Explanation VII of Section 11 of C.P.C., it is to be understood that an auction purchaser who failed to take delivery of property under Order XXI Rule 95 of C.P.C. cannot seek a relief of recovery of possession by way of separate suit as it is hit by constructive res judicata. Therefore it is to be understood that every suit for recovery of possession by auction purchaser against judgement debtor in possession of property sold in auction would offend Section 47 of C.P.C. The judgment of the Full Bench would only pave way to multiplicity of proceedings.

 

16. But if the judgement debtor was not in possession of the property sold in auction and the property is in the possession of tenant or mortgagee or such other person entitled to possess and not hit by lis pendens, there may be a room for the auction purchaser to institute suit for recovery of possession or eviction in accordance with law, on the strength of his title. But in view of the decision in Anjaneyan v. Abdul Razak (2008 (1) KLT 119) and the Full Bench judgement on Point No.B that it was imperative on the part of the decree holder to take possession of the property auctioned by him, it is likely to be a condition precedent for institution of such a suit for possession. What is to be remembered is that the law does not help persons who slept over their rights and the fact that the auction purchaser, who will have a valid title, will not be in a position to recover possession of the property at any point of time and his title will become a dead paper, is of no significance.

A Law for the Subaltern

(By P. Chandrasekhar, Advocate, Ernakulam)

Is ‘greed’ a virtue ? In 1985 addressing a gathering at University of California at Berkley, Ivan Boesky, an American stock trader,  said that “greed is alright, by the way I want you to know that I think greed is healthy. You can be greedy and still feel good about yourself”.  In 1987 the Hollywood movie “Wall Street” immortalised Ivan Boaskey. The fictional character Gordon Grekko in the movie, addressing share holders of a joint stock company, said that ‘the point is, ladies and gentlemen, that greed – for lack of better word – is good. Greed is right. Greed works. Greed clarifies, cuts through, and captures the essence of the revolutionary spirit. Greed for life, for money, for love, knowledge has marked the upward surge of the mankind”.

 

In 1970, the world renowned Economist, Milton Friedman, in an article published in New York Times said that “social responsibility of business is to increase its profits”¹. In an interview given to Phil Donahue in 1979 Milton Friedman, who won Nobel Prize for Economics said that “all countries run on greed” ². The concept of “greed is good” stems from the famous statement of Adam Smith in An Enquiry into the Nature and Causes of Wealth of Nations; “it is not from the benevolence of butcher, the brewer or the baker that we expect our dinner, but their regard for self interest” ³ .   Self-interest, according to Adam Smith, stimulates productivity. According to him interest brings virtue through ‘invisible hand’. In his Theory of Moral Sentiments, Adam Smith, explained that:

 

“ (the rich) are lead by an invisible hand to make nearly the same distribution of the necessities of life which would have been made had the earth been divided into equal portions among all its inhabitants, and thus without intending it, without showing it, advances the interest of the society.” ⁴

 

Adam Smith argued that by giving every one freedom to produce and exchange goods as they pleased, that is free trade, and opening up of markets people’s natural self interest would promote greater philosophy than the stringent government regulations. This free market force came to be known as ‘invisible hand’.

 

Following the concepts of ‘self-interest’ and ‘invisible hand’ neoliberal free market economic theory has become the new mantra for development and economic prosperity.  Neo liberal free market theory has become part of the new economic world order. With the advent of globalisation, privatisation and liberalisation all countries including communist countries have adopted free market trade practice based on neo economic libertarianism. Free market capitalism is now the inviolable rule all over the world. In other words, it is the rule of the rich universally applied to the poor, marginalised and the non-elite sections of the people.  The courts in India  have also recognised  the concept of free market liberalism. Except in very rare and exceptional cases, the Supreme Court has been in the recent times of the view that liberalisation, privatisation and globalisation is for common good. In Islamic Academy v. State of Karnataka.⁵  the Supreme Court said that ‘globalisation and opening up of market under World Trade Organisation and General Agreement on Trade and Tariff human development has taken a firm root”. Supreme Court also said that “a decent life to the persons living in the society” is thereby perceived. In State of Punjab v. Devan Modern Breweries⁶ the Supreme Court held that ‘court will take realistic view in interpreting Constitution having regard to the changing economic scenario’, that ‘the society has adopted pub culture’ and that the decision of the court had to be ‘on the basis of ground reality and not on the centuries old maxims’. InState of Bengal v Kesoram Industries⁷  the Supreme Court  held that the court is required to interpret the constitution, which is an ongoing document, keeping in view also the new vistas opened by reason of globalisation. In Kapila Hingorani v State of Bihar⁸ the Supreme quoted Prof. Upendra Baxi and said that “the processes of globalization, thriving upon the heavily critiqued ideologies of developmentalism and its eventual demise, seek to reproduce the soft state. That notion is, however, now reconstructed in several important ways. The ‘progressive state’, at least in, and for, the South, is now conceived not as a state in its internal relations with its own people but in relation to the global community of foreign investors. A progressive state is one that is a good host state for global capital. A progressive state is one that protects global capital against political instability and market failures”. But there had been discordant notes as well.  InSudhir Chandra Sarkar v Tata Iron & Steel Ltd.⁹, the Supreme Court had said that ‘the claim not to pay gratuity even when it is earned is a hangover of the modern notion of laissez-faire days’. In Bandhua Mukti Morcha v. Union of India¹⁰ the Supreme Court held that ‘the court has duty to abandon laissez-faire approach in the judicial process’. However, in Jal Mahal Resorts Pvt. Ltd. V K P Sharma¹¹ the Supreme Court said that in matters of policy of government, court should be a passive, inactive and silent spectator or otherwise ‘equilibrium of governance will get disturbed and development is bound to be slowed down and disturbed especially in an age of economic liberalism wherein global players also involved as per policy decision’.However, in Nandini Sunder v State of Chattisgarh¹² the Supreme Court quoted from Ajay K Mehra’s article in the book “Dark side of Globalisation” and said that” the persistence  of  “Naxalism”,  the  Maoist revolutionary  politics,  in  India  after  over  six decades  of  parliamentary  politics  is  a  visible  paradox  in a  democratic  “socialist”  India.  India has  come  into  the  twenty-first  century  with  a decade of departure from the Nehruvian socialism to  a  free-market,  rapidly globalizing  economy, which has created new dynamics (and pockets) of deprivation along with economic growth. Thus the same  set  of  issues, particularly  those  related  to  land,  continue  to  fuel  protest  politics,  violent  agitator politics, as well as armed rebellion. Are governments and political parties in India able to grasp  the  socio-economic  dynamics  encouraging these  politics  or  are  they stuck with a security-oriented approach that further fuels them ?”. The Supreme Court also held that “what  is  ominous,  and  forebodes  grave  danger  to  the security and unity of this nation, the welfare of all of our people,  and  the  sanctity  of  our  constitutional  vision  and goals, is that the State is drawing the wrong conclusions” and that “instead of locating the problem in  the  socio-economic  matrix,  and  the  sense  of disempowerment  wrought  by  the  false  developmental paradigm  without  a  human  face,  the  powers  that  be  in India are instead propagating the view that this obsession with economic growth is our only path, and that the cost borne by the poor and the deprived, disproportionately”. Unfortunately, there are not many takers inside and outside judiciary for this view.

 

Gone are the days when Marxian jurisprudence used to influence jurists and academicians. In an interview given by the critical theorist Duncan Kennedy to the Advocate Magazine  he said that ‘ when I was starting out as a law teacher, I spent quite a bit time reading Marx and Marxist theorists and they had a deep influence. I reject communist version of Marxism. I don’t believe in State ownership of the means of production. I don’t believe in vanguard theory. I don’t believe in the dictatorship of the proletariat. From Marx I got two things which I think are great: his critique of the way capitalism works, especially the role of ideology and his emphasis on the struggle between classes¹³. Justice O Chinnappa Reddy a former Supreme Court judge  openly advocated Marxist jurisprudence. Addressinga National Seminar on 13th October 1980 organised by India Law Institute, Justice Chinnappa Reddy said that the real foundation on which legal and political super  structures are found is the economic foundation. With the change of economic foundation super structure also changes rapidly. He drew analogy from Iherings’ classic work “the Struggle for Law” and said that every state punishes those crimes most severely which threatens its own peculiar condition of existence. While it allows a moderation to prevail in regard to other crimes which, not frequently, presents a very striking contrast to severity against the former.

A theocratic state brands blasphemy and idolatry as crimes deserving death penalty.

An agricultural state punishes boundary violator severely. A commercial state punishes who deals in false coins. A military regime punishes insubordination and breach of duty severely. In other words, the reaction of feeling of legal right, both the state and the individuals is most violent when they feel themselves threatened in conditions of existence peculiar to them. According to Justice Chinnappa Reddy ‘bourgeoise legal ideology is under repeated challenges and claims for justice are being made by the exploited and the under privileged groups, demanding interpretation of the laws in a way advantageous to them’ ¹⁴. In National Textile Workers v P.R Ramakrishnan¹⁵  Justice P.N. Bhagwati speaking for the Bench held that “ workers have a special place in socialistic pattern of society. They are no more vendors of toil, they are not marketable commodity to be purchased by owners of capital. They are producers of wealth as much as capital. They supply labour without which capital would be impotent and they are at the last equal partners with capital in the enterprise. Our Constitution has shown profound concern for the workers and given them a pride place in the new socio-economic order envisaged in the Preamble and Directive Principles of State Policy”. Directive Principles guarantee workers the right to participate in the management. But the pendulum, in the wake of neo free market libertarianism, has swung to the other end. Hire and fire has become the new rule. Even Government owned companies and undertakings are allowed to make appointments through back door and fire the employees with impunity. In State of Karnataka v Umadevi¹⁶ the Supreme Court did not blame the management for back door appointments as much it found fault with the  employees  to deny them security of employment for the reason of back door entry.  Prior to Steel Authority Of India Ltd. v. National Union Water Front¹⁷ on abolition of contract labour under the Contract Labour (Regulation & Abolition) Act the contract the employees were liable to be absorbed by the principal employer automatically. However, in Steel Authority of India, the Supreme Court held that there is no automatic absorption of contract employees on abolition of contract labour. The workers are no more equal partners with the capital. The government has also started sharing the principle propounded by Milton Friedman that the it is the social responsibility of the companies to maximise their profits even if it meant depriving of the constitutional right of the workers.

 

It is now axiomatic that economic development is measured in terms of Gross Domestic Product (GDP).  GDP is considered to be the indicator of prosperity. Charles Wilson, CEO of General Motors, who later became the Secretary of Defence under President Eisenhower, remarked that “what is good for General Motors is good for America”. It has become, under the new economic regime, duty of the Government to help Corporations to maximise profit for common good. “Trickle Down” theory holds the sway. It is often said that “trickle down theory’ means in economics that tax breaks and benefits for Corporation and wealthy will trickle down to every one and that all members of the society benefits from growth. Growth, the proponents of ‘trickle down theory’ argue, comes from those  with resources and skills to increase productive out put. ‘Greed is good’ theory thus stands legalised. Collapse of Lehman Brothers and similar big corporations in America, that were once considered too-big-to-fail, has proved that ‘trickle down theory’ did not work as it thought to work. The bankruptcy of Lehman Brothers was caused by human intervention and was a grave economic fraud. The result was persons at the helm of affair of the giant Corporation benefited immensely and investors all over the world had to suffer heavy financial loss. Joseph Stiglitz, a Nobel Laureate in Economics and who was Chief Economist in World Bank, in his book  “Globalisation and its Discontent” ¹⁸  points out that globalization has worked to the detriment of the middle class and the poor. He also pointed out that World Bank and International Monetary Fund through theirs skewed programme have made the people of third world countries suffer by ushering in an era of inequality. In his book ‘Prize of Inequality’ Stiglitz has pointed out that ‘in the aftermath of financial crisis no one would argue that bankers’ pursuit for self interest has led to the well being of all. It led to the bankers’ well being with rest of the society bearing the cost’. On the theory of ‘trickle down’ he said :

 

“Inequality’s apologists – and they are many- argue to the contrary that giving more money to the top will benefit every one, partly because it would lead to more growth. This is an idea called trickle down economics. It has a long pedigree and has long been discredited. As we have seen, higher equality has not led to more growth, most American has seen that incomes sink or stagnate. What America has been experiencing in recent years is opposite of trickle down economics. The riches accruing to the top have come at the expense of those down below” ¹⁹.

 

The staunchest critics of capitalism are not communists or socialists, but capitalists themselves. Raghuram Rajan, former Governor of Reserve Bank of India, and a renowned Economist with his colleague wrote the book “Saving Capitalism from the Capitalists”, severely criticising the way capitalism is made to work in the recent time. He pointed that corporate scandals, implosion of internet bubble, fragility of capitalist system and the crooks produced by market booms lead to failure of capitalism²⁰ . In  2009 Richard Posner, Chief Justice of Court of Appeal for the Seventh Circuit in America, wrote his book “Failure of Capitalism” ²¹. In the preface to his book he explained how market failure, the government’s myopia, passivity and blunders played critical role in allowing economic recession balloon into depression. He also explained how self interested decisions  of rational businessmen and consumers gave rise to economic depression. In 2010 he wrote another book “the Crisis of Capitalist Democracy” ²². In his book Posner explained that he believed in capitalism but capitalism according to him is not synonym for free markets.

 

Kerala has the unique distinction of electing the first communist government in the world. Many of judges who adorned the High Court of the State came through communist stream. Many of them had been social and political activists before they became judges and were well trained and experienced in Marxist ideologies. History however does not show that except Justice V.R.Krishna Iyer none had ever brought Marxian jurisprudence to the Bench. We do not find any marked departure from the law as it applied to the elite in the wake of globalisation, privatisation and liberalisation.

 

Law of the elite does not appear to fit into the scheme of things when it comes to the rights of the non-elite like workers, peasants, street vendors and the ordinary. Judiciary has to recognise that the State has a duty to safeguard the rights of the poor and has a duty to give them level playing field. Placing the rich and the poor on the same pedestal amounts to denial of real equality to the poor. Real equality dawns only when more protection is given to the poor and when they are brought to level playing field. Gayatri Spyvak, Professor in Columbia University, in her seminal article “Can the Subaltern Speak ?” ²³ quoted from the infamous note of Macaulay “Minute on Indian Education (1835)” and said that Macaulay was talking about creation of class who will stand as interpreter of the ruler and the ruled, that is common people of India. The newly created class speaks for the common men, the subaltern. The word ‘subaltern’ was used by Antonio Gramci in his “Prison Note Books” to denote the proletarian class. The subaltern study group to which Gayatri Spyvak belongs however use  the term  ‘subaltern’ to describe the non-elite as distinct from the elites. According to Gayatri Spyvak the subaltern cannot speak. Some body has to speak for them. When the elite class speak for the subaltern they speak in the language of the law of the elite. As a result, no level playing field is ever  set for the subaltern. Equal justice is thus denied to them.

 

In a corrupt ridden society there is no meaning in thinking that the elite would recognise and apply the law of the subaltern when the rights of subaltern is in issue. The elite class always apply the law of the elite to the causes of subaltern. According to data published by Transparency International, India is one among the countries in the world where corruption is rampant. In  Shivaji Rao Nilangekar v Dr. Mahesh Madhav²⁴  the Supreme Court said that “things are happening in public life which never ever anticipated before and that there were several instances of misuse of power by men in authority and position. This is a phenomenon of which the courts are bound to take judicial notice.” In Dinesh Trivedi v Union of India²⁵  Supreme Court relying on Vohra Committee Report took judicial notice of existence of criminal syndicate  involving nexus between politicians, bureaucrats, criminals and antisocial elements.  Supreme Court pointed out that these links amounted to a parallel system of government in which the common men is unprotected and live in constant fear of his life and property. Despite these stark realities exercise power of judicial review of administrative actions in continues to be in a copy book fashion. It is always presumed that  executive power is exercised legally and for the purpose for which it is intended. Except in exceptional cases courts do not go beyond the self-imposed judicial restrain warranting the presence of illegality, irrationality or impropriety before setting at naught an administrative decision. It is always presumed that the executive always act in good faith though the reality is other way round. Subaltern who, unlike the elite, have no access to the corridors of power, often unable to produce material to impress the court that there is misuse of power. Most are turned away stating that the courts are concerned only with decision making process and not the decision as such. In Om Kumar v Union of India²⁶ the  Supreme Court held that when fundamental rights and human rights are in issue  judicial review has to be based on the principle of ‘proportionality’. Proportionality principle demands the courts to decide the case on merit as a primary decision maker and not as secondary decision maker by confining judicial review to the question of correctness of decision making process. The Supreme Court has held that when infringement of Article 14 of the Constitution is in issue on the ground of discrimination principle of proportionality applies. Though the law was thus laid down by the Supreme Court two decades ago, the High Courts in India does not appear to have come to terms with the principles of ‘proportionality’ so far.

 

The present need in a corrupt society is an active judiciary that is able to apply  law of  the subaltern  when the rights of the subaltern is in issue and to give them right based justice having regard to merit of each case and not by a mere peep into the pigeon hole to satisfy the conscience of the court that the decision making process under review is proper or fair in terms of the age old principles of judicial review of administrative action.

 

Foot Notes:

1.   Friedman Doctrine; Social Responsibility of Business is to Increase Its Profits; The New York Times, September, 1970.

2.   https://www.youtube.com/watch?v=TZDXvgUxAgQ.

3.   Adam Smith; An Enquiry Into the Nature and Causes of Wealth of Nations, Oxford  Clarendon Press, 1979.

4.   Adam Smith; Theory of Moral Sentiments; Dover Publications; Mineola, New York (2006).

5.   2003 (3) KLT SN 88 (C.No.118) SC = (2003) 6 SCC 697.

6.   Judgment dated 20th November 2003 in Appeal (Civil) No.3017 of 1997 2004 (1) KLT SN 72(C.No. 96) SC.         

7.   2004 (1) KLT OnLine 1271 (SC) = (2004) 10 SCC 201.

8.   2005 (1) KLT OnLine 1156 (SC) = (2005) 2 SCC 262.

9.   1984 KLT OnLine 1223 (SC) = (1984) 3 SCC 369.

10.  1984 KLT OnLine 1212 (SC) = (1984)3 SCC 161.

11.  2014 (4) KLT Suppl. 88 (SC) = (2014) 8 SCC 804.

12   2011 (4) KLT Suppl. 9 (SC) = (2011) 7 SCC 547.

13.  A Conversation with Duncan Kennedy; the Advocate, Volume 24 No.2, Suffolk University Law School Journal, Page 56.

14.  Journal of Indian Law Institute Vol.25, 1983 April-June, No.2 page 151.

15. 1982 KLT OnLine 1048 (SC) = AIR 1983 SC 75.

16. 2006 (2) KLT SN 55 (C.No. 70) SC = (2006) 4 SCC 1.

17. 2002 (2) KLT SN 64 (C.No. 78) SC = (2001) 7 SCC 1.

18. Globalization and Its Discontent; Joseph E Stiglitz; W.W Norton & Company, New York, 2002.

19. Prize of Inequality, How Today’s Divided Society Endangered Our Future; Joseph E Stiglitz, W.W Norton & Company, New York, 2013.

20. Saving Capitalism from the Capitalists; Raghuram G.Rajan & Luigi Zingales; Crown Business; New York, 2003.

21.  Failure of Capitalism; Richard A Posner, Harvard University Press, Cambridge, 2009.

22.  Crisis of Capitalist Democracy; Richard A Posner; Havard University Press, Cambridge, 2010

23. Reflection on the History of An Idea, Can the Subaltern Speak ? Columbia University Press, New York, 2010.

24. 1987 (1) KLT OnLine 1027 (SC) = AIR 1987 SC 294.

25. 1997 (1) KLT OnLine 1102 (SC) = (1997) 4 SCC 306.

 

26. 2001 (1) KLT OnLine 1021 (SC) = (2001) 2 SCC 386.