Category: <span>Constitution of India</span>

20 Feb

Availability Of An Alternative Remedy Of Appeal Or Revision Alone Would Not Oust The Jurisdiction Of The High Court

In the matter before the Hon’ble Supreme Court recently[1], an order of the High Court declining to exercise its jurisdiction under Article 226 of the Constitution of India in the light of availability of alternative remedy of appeal provided under section 33 of the VAT Act came to be challenged. In order to set the premise, the Court observed that “[t]he power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself… Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs….” The Court further opined that although the exercise of writ jurisdiction may not be made in a routine matter, however it is also not the right approach to mechanically dismiss the petition merely on the ground that the petitioner has not pursued the alternative remedy available to him/it. Therefore, a mere availability an alternative remedy of appeal or revision, not pursued by the party invoking the jurisdiction of the high court under Article 226, would not oust the jurisdiction of the High Court. The Court clarified that “the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law”.

The Court then went on to explain the fine line distinction between “maintainability” of a writ on one hand which goes to the root of the matter which if lacking, may render the court “incapable of even receiving the lis for adjudication” and “entertainability” on the other hand, which is within the realm of discretion of the High Courts. A writ that is maintainable may still not be entertained by the High Court in its discretion for want of public interest. The Court went on to quote from State of Uttar Pradesh vs. Mohd. Nooh 1958 SCR 595 wherein it was held that “there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute…”

The Court then referred to the judgment in Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others (1998) 8 SCC 1 wherein the Court had carved out four exceptions whereof a Writ Court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute. The principle set out in Whirlpool Corporation was reiterated recently in Assistant Commissioner of State Tax vs. M/s. Commercial Steel Limited 2021 SCC OnLine SC 884 . The exceptions set out were where the writ petition seeks enforcement of any of the fundamental rights, where there is violation of principles of natural justice, where the order or the proceedings are wholly without jurisdiction, and where the vires of a legislation challenged.

In the case of State of Uttar Pradesh & ors. vs. Indian Hume Pipe Co. Ltd. (1977) 2 SCC 724 it was held that if the issue at hand raises a pure question of law and if investigation into facts is unnecessary, the High Court could entertain a writ petition in its discretion even though the alternative remedy was not availed of. Similarly in the case of Union of India vs. State of Haryana (2000) 10 SCC 482 it was held that where the court finds the issue raised by the appellant to be “pristinely legal” an exercise of jurisdiction under Article 226 is maintainable. The Court therefore appllied the law as established that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the High Court instead of dismissing the writ petition on the ground of an alternative remedy being available. In the case at hand, the Court found that it was jurisdictional issue raised by the appellant in the writ petition questioning the competence of the Revisional Authority to exercise suo motu power. The Court found it to be a pure question of law and that the writ petition ought not to have been thrown out at the threshold. The Court, therefore, held that the High Court by dismissing the writ petition committed a manifest error of law and the order under challenge is unsustainable and liable to be set aside.

[1] M/s Godrej Sara Lee Ltd. v. The Excise And Taxation Officer cum-Assessing Authority & Ors. [CIVIL APPEAL NO.5393 OF 2010 decided on 01.02.2023]

19 Oct

Understanding the Aspects of Legacy of Fundamental Right to Privacy- Can Legal Heirs of a Deceased Claim It?

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Constitution of India, Right of Privacy

The two plaintiffs are mothers of victims, namely, Ms. Abinta Kabir and Ms. Tarishi Jain, of Holey Artisan (Dhaka, Bangladesh) Terrorist Attack that was carried on 1^st July, 2016. The defendants are producers of a movie by the name of “FARAAZ” which according to the plaintiffs may depict the daughters of the plaintiffs in bad light in relation to the Terrorist Attack which would be difficult for the plaintiffs as they would have to revisit the traumatic incident all over again. The plaintiffs sought ad-interim injunction for restraining the defendants from releasing the movie “FARAAZ” and to restrain the defendants from using plaintiff’s daughters’ names and also the name of their best friend Faraaz Ayaaz Hossain and their image/caricature/ lifestyle/likeness in the movie in any manner, amongst other related relieves. According to the plaintiffs, such depiction of the daughters of the plaintiffs or their friend Faraaz amounts to defamation as it indirectly impacts their reputation and further is in violation of fundamental right to privacy. The plaintiffs also alleged that the release of the movie shall influence the trial of the accused being tried before Indian Courts in relation to the same terrorist attacks and shall violate their right to Fair Trial under Article 21 of the Constitution of India. One of the prayers before the court was for the pre-screening of the film ot the plaintiffs in order to determine the extent of violation.

After becoming aware of the movies, the plaintiffs separately sent Legal Notices calling upon the defendants to refrain from production/release of the movie. The defendants declined to comply with the demands of the plaintiffs in their reply.

The plaintiffs approached Hon’ble High Court of Delhi. While relying on the judgment in the case of K.S. Puttaswamy and Ors. v. Union of India (UoI) and Ors. (2017) 10 SCC 1, the main argument of the plaintiffs was that the movie is made in violation of the right of privacy being an inalienable human right and an intrinsic part of right to life and liberty guaranteed under Article 21 of the Constitution of India. As per the judgment in K.S. Puttaswamy, the right to privacy can be claimed both against the State and non-State actors. The plaintiffs have not only right of privacy but also right of being left alone to grieve in privacy of their homes which is superior to the right of the defendant to commercially exploit a tragic incident. It was argued that plaintiffs were private persons living a life away from public glare unlike persons holding public office or celebrities. Further, the right to make a feature film cannot be equated to right to of press to report events.

In their written statement, the defendants argued that the story of the Terrorist Attack has been documented in podcasts and books and has also been made into an awarded motion picture. The material is available in public domain and reveals intricate details of the attack including the identities of all the victims including the daughters of the plaintiffs, their ordeal and the manner in which the terrorists conducted themselves. The defendants pressed their fundamental rights guaranteed under Article 19(1)(a) and 19(1)(g) of the Constitution to create and produce the feature length cinematograph film. Not only did the defendants claimed that the movie is a work of fiction but also that the film is not about the daughters of the plaintiff and no character in the film has the names of the daughters of the plaintiff. The defendants also mentioned that Faraaz Hossain was posthumously awarded the Mother Teresa Memorial International Award for Social Justice in 2016 for his acts of bravery on the day of attack. His bravery has been recognised worldwide. It was further stated that although the Bangladeshi Censor Board may have prohibited the exhibition of the Bangladeshi film on the Terrorist Attack, the laws and constitutional rights in India impose no such restrictions and in any event, the movie shall be released only after the approval from the Central Board for Film Certification in India. Further, the family of Faraaz has already given a “No Objection” to the use of name of Faraaz in the movie.

The Court divided the analysis into three headings. First head was made to see whether there is a prima facie case. In order to further simplify it the Court went into the right to privacy being a right in personam – whether this right extends even after the death of a person and can be agitated by the legal heirs to protect the dignity of the person who is no more in this world? The Court referred to the judgment of Madras High Court in the case of Managing Director, Makkal Tholai Thodarpu Kuzhumam Limited v. Mrs. V. Muthulakshmi, (2007) 6 Mad LJ 1152 wherein it was held that the right to privacy does not subsist after the death and therefore the Court declined to grant interim injunction to restrain the release of the serial ―Santhana Kaadu based on the life of Late forest brigand Veerappan. The Court also referred to Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, (1986) 1 SCC 118 wherein a broader principle of acto personalis moritur cum persona was discussed. It means a personal action dies with the person. Therefore, on the death of either party extinguishes the cause of action in Tort by one against the other and in a suit for defamation, the cause of action does not survive in favour of the legal heirs and it being the personal right and the suit has to necessarily fail. In a more recent case (Deepa Jayakumar v. A.L. Vijay & Ors. 2021 SCC OnLine Mad 2642), which was filed for grant of ad interim injunction against release of the movie Thallaivi, it was affirmed that “right of privacy of an individual” cannot be inherited by the legal heir after death like other assets and that “posthumous right” is not an “alienable right”. The Court therefore, concluded that “[a]fter the death of a person, the reputation earned cannot be inherited like a movable or immovable property by his or her legal heirs. Such personality right, reputation or privacy enjoyed by a person during his life time comes to an end after his or her life time”. In the light of discussion thus, the case of plaintiffs was squarely covered by the settle law that mothers cannot inherit the right of privacy of the daughters. The Court however, added a general exception to the rule – “The only circumstance wherein the plaintiffs may be able to sustain an injunctive relief is in the case of appropriation of identity as defined by Prosser which means that where one person uses another’s name, the focus is on plaintiff’s name as a symbol of identity and not on the name per se.” This exception was not applicable in the present case.

19 Aug

Whether Section 69A of the Information and Technologies Act, 2002 gives power to the Central Government to issue orders for blocking of social media accounts?

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CommonMan, Constitution of India, Information and Technology

Recently, yet another dispute stirred up between the social media giant Twitter and the Indian Government on account of the Ministry of Electronics and Information Technology (MEIT) issuing a series of blocking orders to the former in relation to multiple twitter accounts and tweets posted on the social media page. As a matter of fact, the micro blogging site has been facing the heat from the Ministry since February 2021 where it has been asked to block almost 1500 accounts and 175 tweets till date. The matter precipitated when the Government finally issued notice dated 27.07.2022 to Twitter warning against punitive measures in the event Twitter does not comply with the blocking orders. Challenging the orders and notice, Twitter, which is a Significant Social Media Intermediary (SSMI) the Information Technologies Act, 2002 (2002 Act), filed a petition before the Karnataka High Court seeking to upend 39 blocking orders issued by the MEIT in June this year under section 69A of the 2002 Act.

As per section 69A, the Central Government has power to direct any agency of the Government or intermediary to block the access by the public of any information generated, transmitted, received, stored or hosted in any computer resource in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to the said grounds. The Government while exercising the said power is required to record reasons in writing.

The essential argument of the Petitioner/Twitter before the Karnataka High Court is that the orders blocking contents are “procedurally and substantially deficient of the provision” and the ones blocking user accounts “demonstrate excessive use of powers and are disproportionate”. Further, the blocking orders fail to provide specifics and do not establish “proximate relationship to the grounds under Section 69A” – as to why the contents of tweets or accounts fall within the heads given under Section 69A of the 2002 Act and rather reiterate the grounds stated in the section. In other words the MEIT has not shown how content disrupts sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order, as contemplated under Section 69A of the 2002 Act. Twitter has taken the Constitutional ground of violation of freedom of speech guaranteed to the users of the platform to voice their opinion. Twitter, before the Karnataka High Court, has further claimed that the ‘blocking orders’ are arbitrary and illegal for not being in consonance with the procedure set out in the Information Technology (Procedures and Safeguards for Blocking of Access to Information by Public) Rules, 2009 (2009 Rules) and for not being in line with the ‘least intrusive test’ as recognised by the Supreme Court in the case of Justice K.S. Puttaswamy (Retd.) and Another v. Union of India and Others [Writ Petition (Civil) No. 494 of 2012] (famously known as Adhaar case).

Twitter has also cited the affidavit filed by the MEIT in the matter of Sanjay R Hegde v. Ministry of Electronics and Information Technology and Anr [WP(C) 13275 of 2019] before the Delhi High Court. In this matter it was Twitter that had suspended Mr. Hedge’s twitter account. The issue raised in the writ petition against Twitter (averred to be doing a public function) is regarding permanent suspension of the twitter account of petitioner, Mr. Hedge, being contrary to the Twitter Rules and in violation of rights guaranteed under Article 19(1)(a) and (c) of the Constitution of India. Twitter Rules prohibit contents that exhibit – a. Violence; b. Terrorism/violent extremism; c. Child sexual exploitation; d. Abuse/Harassment; e. Hateful Conduct; f. Suicide or self-harm; g. Sensitive media, including graphic violence and adult content; h. Illegal or certain regulated goods or services; i. Publication of another person’s private information; j. Publication of Non-consensual nudity; k. Platform manipulation and spam; l. Manipulating with election integrity; m. Impersonation; n. Infringement of Copyright and Trademark. As per the petitioner, Mr. Hedge, the re-post of a poem titled ‘Gorakh Pandey’s poem ‘Unko phaansi de do’ and use of picture of August Landmesser as the ‘header’/ ‘cover picture’ of his Twitter profile was not covered in any of the heads prohibited under Twitter Rules. The Writ Petition prayed for issuing appropriate writ to frame guidelines to ensure that online speech is not arbitrarily censored by social media websites and also for restoring the account.

Clearly, the issues involved in the two matters, presently pending before the high courts, are different. While the petition before the Delhi High Court questions the action of blocking by the social media platform – Twitter, the petition before the Karnataka High Court challenges the orders issued by the Government to Twitter directing it to block the accounts of the users.

Further, the issue before the Delhi High Court is whether Twitter is within its rights and authority to block the account of Mr. Hedge (which perhaps still remains blocked)? This would also necessarily require the finding on whether a writ is maintainable against a private entity like Twitter and whether it is performing a public function so as to be covered under the umbrella of Article 226 of the Constitution of India. The issues before Karnataka High Court, on the other hand, is whether the exercise of power of issuing successive blocking orders by the Government to Twitter under section 69A of the 2002 Act is ultra vires or in other words is excessive and arbitrary? Whether this is a violation of Article 14 and 19 of the Constitution of India?

The MIET has exercised its power under section 69A of the 2002 Act which not only gives an authority to exercise power of blocking but also lays down obligation on the Government to state the reasons to be recorded in writing while issuing the blocking to the intermediary. Further, when the Central Government has satisfied itself that the grounds provided under section 69A are met, it can by order direct the intermediary to block ‘any information generated, transmitted, received, stored or hosted in any computer resource’. It does not state that the power extends to blocking or ordering the blocking of the very social media account permanently or even temporarily, essentially taking away from the account user’s right of any future publication (which changes the nature of order to punitive from protective) and also curbs the right of a reader to have access to the previous and future tweets which were not objectionable under section 69A of the 2002 Act. The power given to the Central Government under section 69A(1) is further subject to section 69A(2) which states that the “procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed”. The procedure and safeguards have been provided under Information Technology (Procedures and Safeguards for Blocking of Access to Information by Public) Rules, 2009. Therefore, there are two clear riders to the exercise of power under section 69A(1) of the 2002 Act. Firstly, to follow the procedure as given in the 2009 Rules and secondly, while issuing the order, to record reason for its satisfaction in writing. Since the exercise of power by the Government is subject to these conditions, any order issued without following the due process shall not only render it illegal but also ultra vires and in conflict with fundamental rights guaranteed under Part III of the Constitution of India. The analysis and finding of the same is primarily factual (other than to determine the essential nature of power and its objective given under section 69A) and the Court shall certainly go into the fact finding whether the riders were fulfilled by the Government. With regard to the argument regarding the constitutionality of blocking orders and the same being ‘disproportionate’, Twitter has apparently relied on the ‘least intrusive test’ and ‘proportionality standard of review’ or ‘proportionality test’. It is pertinent to make clear at this point that Twitter is not challenging the constitutionality of the provision under section 69A of 2002 Act. The law is settled and the provision has been upheld in the matter of Shreya Singhal v Union of India [Writ Petition (Criminal) No.167 of 2012 decided on 24^th March 2015]. It remains to be seen whether the said tests can be applied in the case of exercise of power by a Government authority under a provision of law that has been held to be constitutional (this not being a case of challenge of the legislative provision itself).

24 Jul

Supreme Court Upholds Woman’s right to Reproductive Choice, Bodily Integrity And Autonomy: An Unmarried Woman’s Right To Safe Abortion

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Constitution of India

“The statute has recognized the reproductive choice of a woman and her bodily integrity and autonomy. Both these rights embody the notion that a choice must inhere in a woman on whether or not to bear a child.” – Supreme Court of India.

The law of abortion in India, as on date, lays down that a Medical Practitioner can terminate the pregnancy, provided, the pregnancy does not exceed 20 weeks [Section 3(2) (a) of the Medical Termination of Pregnancy Act, 1971 (“1971 Act”)]. Where the pregnancy exceeds 20 weeks but does not exceed 24 weeks, pregnancy may be terminated if not less than two registered medical practitioners, in good faith, are of an opinion that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health or there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality [Section 3(2) (b) of 1971 Act]. The law further lays down the presumption that where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. [Explanation 1 to Section 3(2) of the 1971 Act]

As per Rule 3B of the Medical Termination of Pregnancy Rules, 2003 certain cases shall be considered eligible for termination of pregnancy under section 3(2)(b) of the 1971 Act. They are – survivors of sexual assault or rape or incest; minors; women whose marital status changed during the ongoing pregnancy (widowhood and divorce); women with physical major disabilities as per criteria laid down under the Rights of Persons with Disabilities Act, 2016; women with mental illness including mental retardation; Women developing foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.

A Division Bench of Delhi High Court comprising of Justices Sathish Chandra Sharma, CJ and Subramonium Prasad, J recently came across a pressing question where the Petitioner, an unmarried woman of 25 years, in her interim application in the Writ sought the relief of termination of pregnancy ( being 24 weeks pregnant) that arose out of a consensual relationship. that did not last. The Court dismissed the application and declined the interim relief stating that “As of today, Rule 3B of the Medical Termination of Pregnancy Rules, 2003, stands, and this Court, while exercising its power under Article 226 of the Constitution of India, 1950, cannot go beyond the Statute. Granting interim relief now would amount to allowing the writ petition itself.” [Ms. X v. The Principal Secretary Health And Family Welfare Department, Government of India W.P.(C) 10602/2022 CM APPL. 30708/2022 decided on 15.07.2022]

The Hon’ble Supreme Court in the appeal against the said order of the Hon’ble High Court [X v. Health And Family Welfare Department, Special Leave to Appeal (C) No(s).12612/2022] passed an order dated 21.07.2022 observing that the order of the High court was unduly restrictive. Although the Court observed that Rule 3B of the 2003 Rules does not contemplate a situation involving unmarried women, the Court also did not find any reason to deny the relief to an unmarried woman. The Court cited the following reasons:

the legislature has not intended to make a distinction between a married and unmarried woman;
same choice is available to other categories of women;
the distinction between a married and unmarried woman does not bear a nexus to the basic purpose and object which is sought to be achieved by Parliament under the Legislation;
The Parliamentary intent, is not to confine the beneficial provisions of the 1971 Act only to a situation involving a matrimonial relationship;
Parliament by amending the 1971 Act in 2021 intended to include unmarried women and single women within the ambit of the Act which is evident from the replacement of the word ‘husband’ with ‘partner’ in Explanation I of Section 3(2) of the Act;
allowing the petitioner to suffer an unwanted pregnancy would be contrary to the intent of the law enacted by Parliament;
allowing the petitioner to terminate her pregnancy, on a proper interpretation of the statute, prima facie, falls within the ambit of the statute;
Explanation 1 to Section 3 of the Act – Explanation 1 expressly contemplates a situation involving an unwanted pregnancy caused as a result of the failure of any device or method used by a woman or her partner for the purpose of limiting the number of children or preventing pregnancy;
The expression “change of marital status” in clause (c) of Rule 3B should be given a purposive rather than a restrictive interpretation and expressions “widowhood and divorce” need not be construed to be exhaustive of the category which precedes;
Now even live-in relationships have been recognized by the Supreme Court. [In S Khusboo v. Kanniammal (2010) 5 SCC 600 it was held that “Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.”]

The Court in unequivocal terms has laid down the law that “A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of Constitution. She has a sacrosanct right to bodily integrity.”The Court further observed that denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom.

The Court while delivering the judgment relied on Suchita Srivastava v Chandigarh Administration [(2009) 9 SCC 1]wherein the Court had held that “If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health”. Similarly, in Justice K.S. Puttaswamy (Retd.) and Anr v. Union of India and Ors, [(2017) 10 SCC 1], the Court had held that the decision of a woman to procreate or abstain from procreating has been recognized as a facet of her right to lead a life with dignity and the right to privacy under Article 21 of the Constitution.

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