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Criticism of the Gujarat Land Grabbing (Prohibition) Act, 2020 (Part 1)

Criticism of the Gujarat Land Grabbing (Prohibition) Act, 2020 

BACKGROUND:

In 2020, The Government of Gujarat passed the Gujarat Land Grabbing (Prohibition) Act to “ensure that no criminals and land mafia usurp land of farmers”. A central means of achieving this was to create a new offence of “land grabbing” and to create “Special Courts” for dealing with land grabbing cases that would finish them within six months. Similar land Grabbing laws have been introduced in the States of Assam (2010), Odisha (2015 ordinance), Andhra Pradesh (1982), and Karnataka (2016). Earlier some people were making false claims on the title of land parcels and then extorting money from lawful owners to let go their “claim”. So the government has brought up this stringent law.

This article discusses an attempt to discuss some problems with the Karnataka version of the Land Grabbing Act. The problems are not restricted to issues with the constitutional validity of the law, but cover more ground that touches broader policy issues. Before proceeding further though, a caveat. Surprisingly, it seems that the constitutional validity of these statutes has rarely come up for scrutiny before the state High Courts. Searching for cases, I only came across constitutional challenges to how the Special Court is constituted under the Gujarat law. We couldn’t find anything from Odisha or Assam. Thus, whatever is argued here is based on an assumption that the issues of constitutional validity have not directly come up before any High Court or Supreme Court yet. If they have, please share the judgment! 

All about Gujarat Land Grabbing and Prohibition Bill, 2020 | Housing News

 WHAT IS “LAND GRABBING”? HOW SERIOUS IS IT?

Land Grabber [defined under Section 2(d) of the Act] is a person who commits land grabbing, or abets others in doing so. Land here means land belonging to government, essentially [Section 2(c)]. As defined under Section 2(e), “Land Grabbing” means:

 …  every activity of land grabber to occupy or attempt to occupy with or without the use of force, threat, intimidation and deceit, any land over which he or they have no ownership, title or physical possession, without any lawful entitlement and with a view to illegally taking possession of such land or creating illegal tenancies or lease or licence, agreements or transfer or sale or by constructing unauthorized structures … 

The definition is not very helpful. It contains a clear “physical conduct” requirement: there must be “grabbing of any land without lawful entitlement”. But there must be an associated mental state with this conduct that makes it criminal. Here, this is grabbing land to which you have no title, with a view to (i) take illegal possession, (ii) create illegal tenancies / lease / license deals, (iii) build structures for sale / hire, (iv) hand over the land to someone else to do all of these things. Since you would rarely end up “grabbing” any land which you don’t own without wanting to take illegal possession over it, one would think that it isn’t too difficult to prove this crime. But more on that later.

This is not the only offence under the statute. Section 5 lists “Penalty for other offences in connection with land grabbing” and criminalises other acts, such as (i) selling grabbed land / advertising about it, (ii) instigating or inciting someone to grab land, (iii) uses grabbed land for any purpose, or knowingly permits it to be used, (iv) enters into deals about constructing on grabbed land, (v) “causes or procures or attempts to procure any person” to do any of the above. Again, one wonders why this was needed given the massive overlap between the two provisions.  

Land Grabbing and all other offences in connection with it, are punishable with at least 10 year and potentially up to 14 years in prison, along with a fine which could go up to Jantri Value of such grabbed land[Sections 4, 5]. If that doesn’t sound serious enough,  Moreover, since the statute does not provide whether the offence is bailable or not, the Cr.P.C. makes it non-bailable by virtue of it being punishable up to ten years in prison. Why would such broad powers be given to states? The definition of “Land Grabber” gives a hint. It is not only talking about persons who take illegal possession. Rather, it focuses on the idea of organised activity geared towards land grabbing. It speaks of “a group of persons or a society” engaging in this, or giving “financial aid” to another for grabbing land or illegally constructing upon it. The definition even speaks of persons “collecting or attempting to collect” money from occupiers of grabbed land by “criminal intimidation”, again hinting at organised crime.* It is quite common for organised crime to not be limited to just one activity, which is why allowing police powers of arrest for these things may help them get dangerous persons off the streets.

That is the logic behind having these powers, but as we know, it is quite common for such powers to be misused. That is a serious concern given how loosely the definition is crafted, and how widely the net is cast. Take a hypothetical: someone tells the police that X is illegally occupying some land. Since illegal occupation would rarely mean that it is not done with a view toward illegal possession, that is enough for police to arrest. Someone needn’t even tell the police that actually, as they can do it themselves. The problem goes further: the act penalises a person who “causes or procures or attempts to procure” anyone to engage in land grabbing. This is not a regular law that penalises attempting to commit a crime. It penalises attempting to get someone to attempt the crime – “attempts to procure any person to do any of the above”. That theoretically means anyone can be arrested and sent to jail, and practically means that the police have a tool to arrest and jail persons on the pretext of allegedly committing this offence.      

In Act of Andhra Pradesh, it states specifically under section 5 that “the Special Tribunal shall, before passing an order under this sub-section, give to the land grabber an opportunity of making his representation or of adducing evidence, if any, in this regard and consider every such representation and evidence” and also section 8(1-A) states that “the Special Court shall not take cognizance of any such case without hearing the petitioner” but  there are no such specific provisions in Act of Gujarat.

Proving “Land Grabbing” in Court – More Reverse Burdens

Section 11 of the Karnataka, Section 10 of the Andhra Pradesh Act and Section 11 of the Gujarat act, all three acts provide that in any proceedings under the Act, if the government can prima facie prove that the land in question was government owned, then the Special Court shall presume that the person is a Land Grabber, and the burden to prove he is not guilty of the crime lies on the person accused. Using reverse onus clauses – where the state does not have to prove guilt – to make it easy for the government to get convictions is now very common. It is a practice blessed by the Supreme Court, which has held them legal as long as the government proves initial facts to shift the burden on to the accused. Here, the government is asked to prove something: that the land was government owned. Does this justify the shifting of burdens? I am not so sure.       

First, the provision here applies to all proceedings under the Act: which means that at every stage such as bail, initial remand, and the start of the trial, the accused will be contesting innocence. This, at the stage of bail where the accused may not yet have the means to assemble a defence, make the bargain particularly unfair. Second, the state needs to prima facie prove something. But what does it mean to prima facie “prove” anything? The Evidence Act in Section 113-B asks the state to “show” facts, and usually the law asks it to “prove” facts. But prima facie proof suggests a lower standard. If the state already doesn’t need to prove guilt, is it legal for the burden to prove initial facts to be even lower than proper proof beyond reasonable doubt? Third, Section 11 asks the government to prima facie prove that the land in question was government owned. Is this enough? Logically, one imagines that the state will also need to prove that the land was being occupied by the accused. Assuming this condition is incorporated into the provision, we come to the remainder of the offence-requirement. The accused would then have to prove that her occupation of the land was not illegal. That seems fine – property documents etc. should be with the accused and this would simply require her to bring them to court. But poor persons often don’t have property documents, despite paying good money for being able to live on land which may not even be government land. Eventually then, they are the ones who stand to suffer.

There are some relevant facts about the Burden of Proof in the Case of Noor Aga vs. State of Punjab and Ors., it states that presumption of burden of proof would operate in the trial of accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift to an accused.

So the question is. “ under what circumstances, it is said that prima facie it is proven about the burden of innocence?” it is not clearly mentioned in this act. So there should any justification regarding the burden of proof where it reverses. 

FURTHER DOUBTS AS TO THE CONSTITUTIONAL AND LEGAL VALIDITY OF THE ACT:

  1. Violation of Article 20- Section 9 of the act provides taking an action by the Special Court in respect of the land grabbed whether before or after the commencement of the Act. Thus, the Act has retrospective applicability and it makes the past innocent person as a criminal by post facto law which violates the fundamental rights of a citizen.
  2. Violation of Article 21-  The Section 4,9 and 11 of the act infringe the fundamental right of the person which are concerned under Article 21. The act also does not provide any summary procedure of eviction of an unauthorized occupant with a detailed procedure of issuance of notice for eviction, its adjudication by the competent authority. The fair and reasonable procedure is not contemplated under the Act and hence it would violate the fundamental rights of the person concerned under Article 21 of the Constitution of India.
  3. Conflicts with Limitation Act 1963: The Section 27, 65, 111 and 112 of the Limitation Act 1963 provides a statutory period of limitation that is allowed for possession of immovable property or any interest is 12 years in the case of private property and 30 years for public prop property, from the date the trespasser occupies the property. Section 27 read with Article 65 of the Limitation Act extinguishes the right of a lawful owner in respect of land or immovable property if within the time stipulated therein the owner fails to assert his right to have possession. The provisions of the Act are repugnant to and in conflict with the above provisions because the act does not provide any remedy to the occupier which exceeded the tenure of 30 years instead, it declares the person guilty who have occupied the land before the commencement of this act.
  4. Eviction of unauthorized personThe section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and the Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972. provide for a summary procedure of eviction of an unauthorized occupant with a detailed procedure of issuance of notice for eviction, its adjudication by the competent officer and providing an appeal against the order of the competent authority. But the provisions of Gujarat land grabbing act do not have such fair and reasonable procedure, hence it also conflicts with the above two acts.
  5. Creates contradiction with Code of criminal procedure The section 167 (2) (a) of CRPC provides for 60 or days 90 days for submitting final report after the registration of the FIR and arrest but In Gujarat land grabbing act, the Rule 5 (10) provides for submission of the final report by Police within 30 days of the registration of the FIR which is absolutely unreasonable as the property and land disputes involve many complex legal and factual issues, which takes lot of time and understanding.
  6. Contradiction the doctrine of proportionality-  The doctrine of proportionality means the administrative action should not be more drastic than it ought to be for obtaining the desired result.  The section 4 of the land grabbing and prohibition Act which states that the convicted person should   be punished with imprisonment for a term which shall not be less than ten years but which may extend to fourteen years and with fine which may extend to Jantri value of such properties violates the doctrine of proportionality which has been used by apex court since 1950..
  7. Contradiction with Section 202 of the Gujarat Land Revenue Code, 1879- The Section 202 of the Gujarat Land Revenue Code,1879 provides a detailed procedure on how to evict an unauthorized occupant  by serving him a notice and a reasonable time to vacate the land but Gujarat Land Grabbing (Prohibition) Act, 2020 does not provide any such fair and reasonable time or any detail procedure, hence it conflicts with the Gujarat Land Revenue Code, 1879.
  8. Conflicts with section 101 and 102 of the Evidence Act, 1872- The section 101 states that whoever desire any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.  The section 102 of the Evidence Act, 1872 states that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. But According to section 11 of the Gujarat Land Grabbing (Prohibition) Act, 2020, the special court is bound to presume that the person who is alleged to have grabbed land is a land grabber. The burden of proof that the land has not been grabbed by him, shall be on such a person. The section 11 of the Gujarat Land Grabbing (Prohibition) Act, 2020 doesn’t deem to be fit and the interest of justice equity and good conscience.
  9. Limit the scope of interference of Higher Court- In the Karnataka Land Grabbing (Prohibition) Act, 2011, the court can proceed to rehear the case in manner provided by the Code of Criminal Procedure, 1973 but in Gujarat Land Grabbing (Prohibition) Act, 2020 in section 9(2), it states that in respect of alleged act of land grabbing determination of question of title and ownership to, or lawful possession of any land grabbed under this act, shall, subject to the provision of Gujarat Land Grabbing(Prohibition) Act, 2020. The decision of the special court will be final. There is no option to appeal, a revision or a review. The only option he has is the writ of certiorari.
  10. Burden of proof on victim- The provisions of Sections 11 of the Gujarat Land Grabbing Act being draconian in nature imposing reverse burden on an accused and, thus, being contrary to Article 14(2) of the International Covenant on Civil and Political Rights providing for ‘an accused to be innocent until proven guilty’ must be held to be ultra vires Articles 14 and 21 of the Constitution of India. The Act contains draconian provisions. Only because the burden of proof under certain circumstances is placed on the accused, the same, by itself, in our opinion, would not render the impugned provisions unconstitutional. The approach of the Common Law is that it is the duty of the prosecution to prove a person guilty. Indisputably this common law principle was subject to parliamentary legislation to the contrary. The concern now shown worldwide is that the Parliaments had frequently been making inroads on the basic presumption of innocence. Unfortunately, unlike other countries no systematic study has been made in India as to how many offences are triable in the Court, where the legal burden is on the accused. Presumption is raised only when certain foundational facts are established by the prosecution. The accused in such an event would be entitled to show that he has not violated the provisions of the Act. Fairness and reasonableness of trial as also maintenance of the individual dignity of the accused must be uppermost in the court’s mind.
  11. Demolition under BPMC Act, 1949- BPMC Act, 1949 clearly states the provision regarding the demolition over any illegal possession of the property. Here the Gujarat Land Grabbing (Prohibiton) Act, 2020 overrules the BPMC Act and provides provisions a not in interest of justice, equity and good conscience.
  12.  THE STREET VENDORS (PROTECTION OF LIVELIHOOD AND REGULATION OF STREET VENDING)      ACT,2014- The Gujarat Land Grabbing (Prohibition) Act, 2020 has failed to check the ground reality of the state. There are many street vendors who do occupy the land and vacate after the particular time. There is a special act called THE STREET VENDORS (PROTECTION OF LIVELIHOOD AND REGULATION OF STREET VENDING) ACT,2014 which describes rules, provisions, punishment for street vendors but there are no provision in The Gujarat Land Grabbing (prohibition) Act, 2020 for the street vendors. This act is not in interest of justice or equity for the Street Vendors. Further that this act can create a threat to the Street Vendors who occupy land for sometime for their livelihood.

Author: Vinay Sachdev & Dhruvil Kanabar

Editor: Adv. Aditya Bhatt & Adv. Chandni Joshi

ARREST OF A SHIP UNDER ADMIRALTY LAW / MARITIME LAW

ARREST OF A SHIP UNDER ADMIRALTY LAW / MARITIME LAW

 

INTRODUCTION

“The safety of the people shall be the highest law” – Marcus Tullius Cicero

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India has a long-standing history in dealing with the sea and has had a distinguished tradition for several years with trade and commerce, both within the region and beyond its territorial borders. India’s maritime history dates back to the 3rd millennium BCE, and since then many ships have sailed from India and, to India. Therefore, though there was no codified law as the one which exists today, the customs and regulations concerning sea and maritime activities have been in existence since time immemorial.

This article analyses the Maritime Law of India and the Law relating to ship arrests, including the jurisdiction, permissible claims and procedural aspects of ship arrests in India.

Before Independence, the laws relating to maritime laws in India were governed under the British government. The Coasting Vessels Act, 1838, Inland Steam Vessels Act, 1917, Admiralty Offences (Colonial) Act, 1849, Indian Registration of Ships Act, 1841, Indian Ports Act, 1908, Control of Shipping Act, 1947 are some of the regulations which deal with various aspects of maritime in India.

MEANING OF MARITIME LAW

In simple words, Maritime Law is a set of rules and regulations which govern the matters relating to sea and ships. It is also known as admiralty law. Numerous legal luminaries have provided their definition of the term ‘maritime law.’ Some of them are as follows:

Professor Grant Gilmore and Charles L. Black, in their ‘Law of Admiralty’, define maritime or Admiralty Law as the following:

”A corpus of rules, concepts and legal practices governing certain centrally important concerns of the business of carrying goods and passengers by water.”

Black’s Law dictionary defines maritime Law as- “the body of law governing marine commerce and navigation, the carriage at of persons and property, and marine affairs in general; the rules governing contract, tort and workers’ compensation claims or relating to commerce on or over water.”

The definitions, given above covers a wide range of activities concerning the sea, however now with the evolution of Law, the Maritime Law is comprehensive, and it is that branch of jurisprudence which covers all the matters relating to sea and ships.

SHIP ARREST

Ship arrest is a process in which a ship is prevented from trading or moving until the matter in question is decided. It is an exclusive jurisdiction that is granted to an admiralty court to detain a vessel to secure a maritime claim.

Article 2 of the International Convention Relating to the Arrest of Sea-Going Ships, 1952 defines the term arrest as the following:

“(2) “Arrest” means the detention of a ship by judicial process to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a judgment.”

The main purpose of arrest is to obtain security for satisfaction of judgment in the action in rem and it is necessary to arrest the ship in order to establish jurisdiction. Merchant ships of different nationalities travel from port to port carrying goods or passengers. They incur liabilities in the course of their voyage and they subject themselves to the jurisdiction of foreign States when they enter the waters of those States. They are liable to be arrested for the enforcement of maritime claims, or seized in execution or satisfaction of judgments in legal actions arising out of collisions; salvage, loss of life or personal injury, loss of or damage to goods and the like. They are liable to be detained or confiscated by the authorities of foreign States for violating their customs, regulations, safety measures, rules of the road, health regulations, and for other causes. The coastal State may exercise its criminal jurisdiction on board the vessel for the purpose of arrest or investigation in connection with certain serious crimes. In the course of an international voyage, a vessel thus subjects itself to the public and private laws of various countries. A ship travelling from port to port stays very briefly in any one port. A plaintiff seeking to enforce his maritime claim against a foreign ship has no effective remedy once it has sailed away and if the foreign owner has neither property nor residence within jurisdiction. The plaintiff may therefore detain the ship by obtaining an order of attachment whenever it is feared that the ship is likely to slip out of jurisdiction, thus leaving the plaintiff without any security.

RATIONALITY

A ship arrest may be exercised under the authority of a court having admiralty jurisdiction, for the following reasons:

  1. Loss of life
  2. Loss of property
  3. Salvage
  4. Collision
  5. Execution of a decree
  6. Violation of customs, usages, regulations or norms

JURISDICTION OF INDIAN COURTS

Before India gained Independence, under The Colonial Court of Admiralty Act, 1890, the High Court of Bombay, Madras and Calcutta were the only judicial authorities competent to deal with matters relating to Admiralty. The other courts of justice were restricted from dealing with issues concerning the Admiralty. Under the Admiralty Courts Act, 1861, the three presidency courts were vested with the same powers as that of the High Court of England.

Section 35 of the Admiralty Courts Act, 1861 deals with the jurisdiction of Admiralty court, and it reads as the following:

“35. The jurisdiction conferred by this Act on the High Court of Admiralty may be exercised either by proceedings in rem or by proceedings in personam.”

The Law relating to Admiralty jurisdiction is relevant even today under Article 372 of the Constitution of India.

Therefore, in M.V. Elisabeth vs Harwan Investment and Trading, 1993 AIR SC 1014, the question was whether a court having no admiralty jurisdiction could entertain a case relating to Admiralty. The Supreme Court, in this case, widened the scope of admiralty jurisdiction in India.

The Court held

“Although statutes now control the field, much of the admiralty law is rooted in judicial decisions and influenced by the impact of Civil Law, Common Law, and equity. The ancient maritime codes like the Rhodian Sea Law, the Basilika, the Assizes of Jerusalem, the Rolls of Oleron, the Laws of Visby, the Hanseatic Code, the Black Book of the British Admiralty, Consolato del Mare, and others are, apart from statute, some of the sources from which the Law developed in England. Any attempt to confine Admiralty or maritime Law within the bounds of statutes is not only unrealistic but incorrect.”

THE SUPREME COURT MADE THE FOLLOWING OBSERVATION

“The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of this Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their powers.”

Further, in this case, the International Convention for the unification of some rules regarding Arrest of Sea-going Ships (The Arrest Convention), 1952 was also made applicable to India, although it was not ratified.

Similarly, In the M.V Sea Success case, the Supreme Court held that the principles laid down in 1999 Geneva Arrest Convention could be applied in India on matters concerning Admiralty.

In India, The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 was enacted on 9 August 2017 to consolidate the laws relating to Admiralty. The Act implemented, repeals all the outdated provisions relating to Admiralty.

As per Section 3 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, the jurisdiction concerning admiralty matters shall be vested in the respective High Courts, and the courts shall exercise their authority within the territorial waters of their jurisdiction.

Therefore, now the scope of admiralty jurisdiction has been widened, and apart from the presidency courts, the following courts (coastal regions) have jurisdiction to deal with admiralty matters:

  1. High Court of Gujarat
  2. High Court of Andhra Pradesh
  3. High Court of Orissa
  4. High Court of Kerala

PERMISSIBLE CLAIMS

The High Courts’ as discussed earlier, has the jurisdiction to entertain claims as provided under Article 1 of the Arrest Convention, 1952 and Article 1 of the Geneva Arrest Convention, 1999. Therefore, before the enactment of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, the claims were as provided under the conventions as discussed earlier. However, now the Law relating to Maritime claim is provided under section 4 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017.

Section 4 of the Act reads as the following:

“The High Court may exercise jurisdiction to hear and determine any question on a maritime claim, against any vessel, arising out of any

  • a dispute regarding the possession or ownership of a vessel or the ownership of any share therein
  • dispute between the co-owners of a vessel as to the employment or earnings of the vessel
  • mortgage or a charge of the same nature on a vessel;
  • loss or damage caused by the operation of a vessel
  • loss of life or personal injury occurring whether on land or on water, in direct connection with the operation of a vessel
  • loss or damage to or in connection with any goods
  • agreement relating to the carriage of goods or passengers on board a vessel, whether contained in a charter party or otherwise
  • salvage services, including, if applicable, special compensation relating to salvage services in respect of a vessel which by itself or its cargo threatens damage to the environment
  • Pilotage
  • goods, materials, perishable or non-perishable provisions, bunker fuel, equipment (including containers), supplied or services rendered to the vessel for its operation, management, preservation or maintenance including any fee payable or leviable;
  • construction, reconstruction, repair, converting or equipping of the vessel;
  • dues in connection with any port, harbour, canal, dock or light tolls, other tolls, waterway or any charges of similar kind chargeable under any law for the time being in force
  • claim by a master or member of the crew of a vessel or their heirs and dependents for wages or any sum due out of wages or adjudged to be due which may be recoverable as wages or cost of repatriation or social insurance contribution payable on their behalf or any amount an employer is under an obligation to pay to a person as an employee, whether the obligation arose out of a contract of employment or by operation of a law (including operation of a law of any country) for the time being in force, and includes any claim arising under a manning and crew agreement relating to a vessel, notwithstanding anything contained in the provisions of sections 150 and 151 of the Merchant Shipping Act, 1958 (44 of 1958)
  • disbursements incurred on behalf of the vessel or iparticular average or general average
  • dispute arising out of a contract for the sale of the vessel
  • insurance premium (including mutual insurance calls) in respect of the vessel, payable by or on behalf of the vessel owners or demise charterers
  • commission, brokerage or agency fees payable in respect of the vessel by or on behalf of the vessel owner or demise charterer
  • damage or threat of damage caused by the vessel to the environment, coastline or relate interests; measures taken to prevent, minimize, or remove such damage; compensation for such damage; costs of reasonable measures for the restoration of the environment actually undertaken or to be undertaken; loss incurred or likely to be incurred by third parties in connection with such damage; or any other damage, costs, or loss of a similar nature to those identified in this clause
  • costs or expenses relating to raising, removal, recovery, destruction or the rendering harmless of a vessel which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such vessel, and costs or expenses relating to the preservation of an abandoned vessel and maintenance of its crew; and
  • maritime lie

PROCEDURE FOR ARREST

The Law relating to the arrest of a vessel in rem is provided under Section 5 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017.

Under the section, the High Court may order for the arrest of any vessel within its jurisdiction, where there is a reason to believe:

  • The owner of the vessel is liable for the claim, or
  • The demise charterer of the vessel is liable for the claim, or
  • The claim is based on a mortgage or similar charge, or
  • The claim relates to possession or ownership, or
  • The claim is against the owner, demise charterer, manager or operator of the vessel.

Once the claim has been decided, the claimant has to state the detailed facts, along with the other particulars and must make an application for the substantive suit. The Admiralty suit should specify:

  • The name of the claimant
  • The name of the vessel
  • Flag of the Vessel
  • Details of the owner of the ship
  • Facts relating to the dispute
  • Grounds and
  • Prayer

Once an arrest warrant is issued upon a vessel, the owner of the vessel has to appear and settle the claim or challenge the arrest made. The vessel may be allowed to sail subject to furnishing of security for the claim. At the default of the owner, the ship can be sold, and the sale proceeds may be used to settle the claim.

Therefore, the Law relating to ship arrest is now well settled in India. The admiralty law is an area of development, and it plays an inevitable role in protecting the citizens as well as ensuring that no organization or individual violates the Law of the sea.

CONCLUSION

Therefore, the Law relating to ship arrest is now well settled in India. The admiralty law is an area of development, and it plays an inevitable role in protecting the citizens as well as ensuring that no organization or individual violates the Law of the sea.

Comparative Analysis of Gambling Act or Laws of Gambling in India

Comparative Analysis of Gambling Act or Laws of Gambling in India

Laws of Gambling in India or The Gambling Act, 1887, applies to the States of Maharashtra and by virtue of the Bombay Reorganization Act, 1960, to Gujarat as well. While prohibiting and penalizing ‘betting or wagering’, the Act, under section 3, exempts from its ambit “wagering or betting upon a horse-race or dog race” and under section 13, “games of mere skill wherever played”.

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Gambling and Betting- a Game of Chance or Skill

  • The main test to determine whether a game amounts to gambling or not is, what dominates/preponderates, whether skill or chance. Games of chance are those where the winner is predominantly determined by luck; the result of the game is entirely uncertain and a person is unable to influence such result by his mental or physical skill. The person indulging in game of chance wins or loses by sheer luck and skill has no role to play. On the other hand, the result of a game of skill is influenced by the expertise, knowledge and training of the player. In India, games of chance fall under the category of gambling, and are generally prohibited, while games of skill, falling outside the ambit of gambling are usually exempted.
  • In RMD Chamarbaugawala v. Union of India, the Apex court relied on the ‘skill test’ to decide whether an activity is gambling or not. The court held that competitions which substantially involve skills are not gambling activities but are commercial activities, protected under Art. 19(1)(g).
  • State of Andhra Pradesh v. K. Satyanarayana & Ors., held that, rummy is preponderantly a game of skill and not of chance. The Court further observed that, “it requires certain amount of skill because the fall of the cards has to be memorised and the building up of rummy requires considerable skill in holding and discarding cards”. The expression ‘mere skill’ means presence of skill of a substantial degree.
  • The Public Gambling Act ceased to be a Central Legislation, such that it was no longer a law applicable to the whole of the territory of India.
  • The following 14 States/Union Territories have passed enactments adopting the Public Gambling Act, 1867 as it is, namely:
  1. Andaman Nicobar 
  2. Arunachal Pradesh 
  3. Chandigarh
  4. Dadra and Nagar Haveli 
  5. Haryana 
  6. Himachal Pradesh 
  7. Lakshadweep 
  8. Punjab 
  9. Madhya Pradesh 
  10. Chhattisgarh 
  11. Manipur 
  12. Mizoram 
  13. Tripura 
  14. Uttarakhand
  • Other States like Andhra Pradesh , Delhi , Gujarat and Maharashtra, Jammu & Kashmir,Meghalaya and Goa among many others have resorted to enacting their own gambling legislations.

Meghalaya The Meghalaya Prevention of Gambling Act, 1970 

 

 

  • The Act, 1970 not only permits “games of mere skill wherever played”, but also those games and sports that it may by notification, exempt from the operation of this Act, provided it is not likely to encourage gambling or otherwise defeat the objects thereof.
  • The government of Meghalaya has used the power available under Section 13(2) to permit the local archery game of ‘teer’.
  • Betting on it is licensed under Section 14A of the Meghalaya Amusement and Betting Tax (Amendment) Act 1982.

 

Rajasthan The Rajasthan Public Gaming Ordinance, 1949 

 

  • The Ordinance, 1949 provides that nothing therein shall be held to apply to any game of mere skill, as distinguished from a game of chance and skill combined, unless it is carried on in common gaming house. Thus, the Rajasthan Ordinance prohibits even games of skill, only if played in a common gaming house. 

 

Goa, Daman and Diu The Goa, Daman and Diu Public Gambling Act, 1976 

 

  • The Act, 1976 aims to “provide for the punishment for public gambling and the keeping of common gaming houses in the Union territory of Goa, Daman and Diu”. However, it is one of the only two State Legislations in operation that permits casinos and other games of chance. 
  • The Goa Legislative Assembly by amending the Act in 1992110 and 1996111 added Section 13A, which allows the State Government to authorise games of “electronic amusement/slot machines in Five Star Hotels” and “such table games and gaming on board in vessels offshore as may be notified”.
  • The 2012 Amendment112, further widened the ambit and regulatory system by amending some of the provisions and also inserting a new range of provisions. The prominent among the new provisions so added are:
  1. Section 13C, enabling the State government to appoint a Gaming Commissioner; 
  2. Section 13D, provides for powers, duties and functions of the Gambling Commissioner; and, 
  3. Section 13L, excludes the jurisdiction of Civil Courts with respect to entertaining any matter arising out of any order, direction, rule issued or framed under the Act.

 

Sikkim 

 

  1. Games of Chance The Sikkim Casinos (Control & Tax) Act, 2002 

The Act, 2002 authorizes the Government of Sikkim to grant licences to businesses and individuals to operate casinos in the State. The Sikkim Regulation of Gambling (Amendment) Act, 2005, grants discretion upon the government to grant licences, authorizing gambling on certain days and making certain gambling houses legal. The Sikkim Casino Games (Control and Tax) Rules, 2007 are made under Section 18 of the Act. The Act and the Rules framed thereunder regulate games of chance played using a machine or instrument in fivestar hotels. In July 2016, the Government of Sikkim, vide a notification, banned its local population from playing in casinos situated in the State

  1. Online Gaming The Sikkim Online Gaming (Regulation) Act, 2008 

The Act, 2008 is the first Indian legislation to expressly permit and regulate online gaming. The Sikkim Online Gaming (Regulation) Rules, 2009 are framed under section 23 of the 2008 Act. Rule 3 of these Rules, read with the Sikkim Online Gaming (Regulation) Amendment Act, 2009, provides that the following games may be operated and played under a licence obtained from the State Government:

  1. Roulette 
  2. Black Jack 
  3. Pontoon 
  4.  Punto Banco 
  5. Bingo 
  6. Casino Brag 
  7.  Poker 
  8. Poker Dice 
  9.  Baccarat 
  10. Chemin-de-for
  11. Backgammon 
  12. Keno 
  13.  Super Pan 9 
  14.  sports betting on games, which involve prediction of the results of the sporting events and placing a bet on the outcome, either in part or in whole, of such sporting event, and including football, cricket, lawn tennis, chess, gold, horse-racing, etc. 5.58 The Government of Sikkim, however, restricted the offering of “online games and sports games” to the physical premises of ‘gaming parlours’ through intranet gaming terminals within the geographical boundaries of the State, by enacting the Sikkim Online Gaming (Regulation) Amendment Act, 2015.
  • Other States like Kerala, Jammu & Kashmir, Bihar, Jharkhand, etc., have enacted their own laws on ‘Betting and Gambling’, following, in a way, the model of the Public Gambling Act, 1867, and prohibiting gambling and keeping of common gaming houses, while making an exception for ‘games of skill’

Kerala High Court Directions to Goverment

  • The kerala High Court has directed the Kerala Government to take an appropriate decision on the aspect of inclusion of online gambling and online betting within the purview of Kerala Gambling Act,1960-a legislation which bans gambling/betting-within a period of two weeks.
  • A division bench comprising Chief Justice S Manikumar and Justice Shaji P Chaly was informed by the Government Pleader that the State Police Chief has submitted a proposal to bring online betting under the Kerala Gaming Act and that the Government was considering the same.
  • The Court was considering a Public Interest Litigation filed by film director Pauly Vadakkan seeking action against web portals promoting online rummy and similar gambling activities. The Court had earlier issued notice to Indian Cricket captain Virat Kohli, actors Tamanna Bhatia and Aju Varghese, who were brand ambassadors for online rummy portals.
  • “Play Games 24*7 Private Ltd” and “Mobile Premier League(MPL)”- two companies running online betting portals- were also made respondents in the petition.
  • Petitioner has submitted that the law relating to gaming in Kerala, is mainly dealt with Kerala Gaming Act, 1960. However, the Act does not extend its power to any gambling, wagering or betting games conducted through online platforms, by using electronic and communication devices. The idea of Games, as envisaged under the Act, exclusively includes those games that are conducted in a ”common gaming house” by using “instruments for gaming” for the purpose of accrual of profit or gain to the person owing, occupying, keeping such instruments of gaming in the enclosed physical promise. Thus, there is always an element of physical premise present in it. Therefore, the online gambling games do not come under this legislation. 
  • According to Mr.Jomy K. Jose, learned counsel for the petitioner, online gambling platforms are engaged in illegal activities and they remain unchecked, owing to deficiencies in the legal infrastructure. Gambling through online platforms is now a growing menace in the State. 
  • These platforms that are even endorsed by celebrities attract their audience with false promise, easily making a fool of unsuspecting people. Primary targets will be middle to low income people who are enticed to make easy money. People fall prey to these fraud platforms only to loose what’s left of their life’s savings. There have been reports of such scams from across the state”, the petition stated.
  • The petitioner highlighted the recent suicide of a Kerala youth after he lost money in online betting. 
  • It was pointed out that the High Courts of Madras and Gujarat have passed directions against online gambling, and states of Andhra Pradesh, Assam and Odisha have brought laws against it.
  • In this connection, the petitioner pointed out that the Kerala Gaming Act 1960- which regulates gambling activities- is inadequate to deal with the challenges posed by online gambling as it does not have provisions covering activities done virtually via electronic devices.
  • Placing on record the submission of the learned Government Pleader, Respondents 1 and 2 (Chief Secretary to Government, State of Kerala and the Secretary to the Government, Information Technology Department) respectively, are directed to take appropriate decision on the aspect of inclusion of online gambling and online betting, within the purview of the Kerala Gaming Act, 1960, within a period of two weeks from today. With the above directions, the writ petition is disposed of.

Gujarat Prevention of Gambling Act, 1887

  • The Gambling Act of Gujarat forbids gambling or being located within illegal venues such as those considered gaming-houses.
  • Organizing gambling or holding a gaming-house risks imprisonment for a minimum of three months for first-time offenders plus a minimum of ₹500 fine, up to one year in prison, and a minimum of ₹2,000 fine for third-time offenders.
  • Persons found gambling or present at an illegal venue risks at least two months in jail and a ₹300 fine for a first-time offense, while a third-time offender risks at least nine months imprisonment and at least ₹300 fine.

Conclusion

Gamblers are often tempted to play for longer durations and up the ante when it appears to them that they are just about to win. This is, quite often than not, a mirage, and over time, this overly optimistic attitude manifests itself as ‘loss chasing’, wherein gamblers keep on playing in an effort to recover their incessantly accruing loss. ‘Loss chasing’ is one of the most important identifier of ‘problem gambling’, and closely resembles drug addiction. Problem gamblers also experience cravings and withdrawal-symptoms when deprived of gambling. That identical view can be adopted even for the State of Gujarat, as the definition of Gambling remains comparable even for the State of Gujarat vis a vis the State of Kerala. Therefore, we strongly believe that a uniform legislation may be implemented all throughout the country in order to avoid policy lapses being advantageously used by the service providers of Gambling Apps. 

Bio-Medical Waste Management Rules, 1998 & 2016: A Comparative Study

Bio-Medical Waste Management Rules, 1998 & 2016: A Comparative Study

Introduction:

The study here tries to throw a light on the various aspects of the Bio-Medical waste Rules that has changed/amended from Bio-Medical Waste Management Rules, 1998 to Bio Medical Waste Management Rules, 2016. The Amendments/changes that has been done by the Government in the Bio Medical Waste management rules,2016 are for the better disposal of Bio-Medical Waste, through which the society can be a better place to live in.

Bio Medical Waste Management Rule, 2016

Bio-Medical Waste Management Rules, 1998 & 2016 Comparative Analysis

Bio-Medical Waste:

Bio-medical waste is a waste which is generated during diagnosis or treatment of people or animals. This includes all the people and institutes which generate, store, collect, transport, treat, any forms of Bio-Medical Waste. There are many types of Bio-Medical wastes out which some are easy to treat and not harmful or contagious, and the other is very harmful as it can spread highly contagious diseases to the present and the future generation as well. This kind of waste can even be threat to the environment too as it can cause air, water, and soil pollution.

Many studies have stated that health care workers have very less or no knowledge about the disposal of Bio-Medical Waste which can be harmful and may seriously affect the environment. Due to the same reason, there is an increase in the awareness about the Bio-Medical Waste segregation and disposal. In our country there is a very much need of the awareness and knowledge about the same as many reports suggest that there is a lacunae in the practices among the many Health Care Workers. The Bio-Medical Waste Management Rules has been amended several times, but there is a lack of update among Healthcare workers and institutions.

Harmful Effects of Poorly Managed Biomedical Waste:

Biomedical waste when not disposed properly can pose serious risks to society and the environment through air emissions, contamination of water and physical contact.

Improper disposal refers to open dumping, unrestrained burning, and improper handling of waste during generation, collection, storage, transport and treatment.

Improper handling involves unsafe procedures followed during handling of wastes i.e. without wearing protective equipment, poor storage (high temp, high residence), transporting manually for longer distances, uncovered or unpacked containers instead of puncture proof bags, etc. all of which effect hospital workers in different ways.

The following groups are exposed:

Inside Health Care Centers: 

staff- doctors, nurses, auxiliaries, stretcher bearers, patients, scientific and technical personnel, housekeeping staff, laundry, waste managers, maintenance, and lab technicians.

Outside: 

In site and off site transport personnel, waste processing personnel, public, and rag pickers. Improper management of wastewater and sludge can result in contamination of air, soil and water with pathogens and toxic chemicals which may affect all forms of life. Inadequate waste management can cause environmental pollution, unpleasant odors, growth and multiplication of insects, rodents and worms and may lead to transmission of diseases like typhoid, cholera, etc. Infectious agents such as faeces, vomit, saliva, secretions, blood can cause serious health risks on individuals by affecting organs or systems like gastrointestinal, respiratory, eye, skin and cause Anthrax, Meningitis, AIDS, Haemorrhagic Fever, Hepatitis A, B, C, Influenza etc. Research and radio-immunoassay activities may generate small quantities of radioactive gases.

Infections Associated with Different Types of Waste:

OrganismDisease CausedRelated waste
Viruses

HIV, Hepatitis B, Hepatitis A, C, Arboviruses, Enteroviruses

AIDS, Infectious Hepatitis, Dengue, Japanese encephalitis, tick-borne, fevers, meningitis, etc.Infected needles, body fluids, Human excreta, soiled linen, blood
Bacteria

Salmonella typhi, vibrio cholera, clostridium Tetani, Pseudomonas, Streptococcus

Typhoid, Cholera, Tetanus, Wound Infections, Septicaemia, Rheumatic fever, endocarditis, skin and soft tissue infections, meningitis, bacteraemiaHuman excreta and body fluids in landfills and hospital wards, sharps such as needles, surgical blades in hospital waste 
Parasites

Wucheraria Bancrofti, Plasmodium

Cutaenous leishmaniosis, Kala Azar, MalariaHuman excreta, blood and body fluids in poorly managed sewage system of hospitals

 

Bio-Medical Waste Management Rules:

Bio-Medical Waste Management Rules were implemented under Environment Protection Act,1986 in our country on 20th July,1998. After that the Rules have undergone many amendments in the passing years. Bio-Medical waste Rules,2016 is the latest Bio-Medical Rules after significant and many changes done to Bio-Medical Rules,1998 keeping in mind the health care of the people. Primarily this waste was divided among various categories. Further multiple categories were clubbed to disposed in four colour coded bags. This was very hard to be remembered by the housekeeping and healthworker staff which formed a very weak section in the Bio Medical Waste Management system. It was found that the Bio-Medical waste generators had their own waste disposal techniques and systems which were not very effective or required significant improvement as they posed a threat to the public as well as the environment.

To undertake all these issues the new Bio-Medical Waste Management Rules were laid down by the ministry of Environment, Forest and Climate change under the Environment Protection Act, 1986 on 28th March, 2016.

Difference between Bio-Medical Waste Management Rules, 1998 and 2016:

The major changes are as follows: (1) the removal of multiple categories and to continue with only four color-codes (2) that no occupier was permitted to establish an on-site treatment and disposal facility if service of a common biomedical waste treatment facility (CBMWTF) is available within a distance of 75 km, and (3) changes in the form numbers of accident reporting, authorization, annual reporting, and appeal. The difference between Bio-Medical Waste Management Rules, 1998 and 2016 has been discussed by dividing it into various points and showing the difference between them.

Duties of the Occupier:

Duties of the occupier are delineated better as it wasn’t delineated in 1998. There is pretreatment by disinfection and sterilization on-site of infectious lab waste blood bags as per the WHO guidelines Occupier ensures liquid waste is segregated at source by pretreatment,  whereas, No pretreatment of waste on-site Chlorinated plastic bags, gloves, and blood bags were recommended. ETP is mandatory Occupier ensures to maintain BMWM register daily and on website monthly Annual report should be made available on the website within two years The occupier (30 bedded) establishes BMWM committee Records of equipment, training, health checkup, and immunization are compulsory whereas any of the above were not mandatory in the Biomedical waste management rules, 1998.

Duties of the CBMWTF:

Duties are delineated better The occupier has to establish barcoding and GPS and ensure occupational safety of all its HCWs by TT and HBV vaccination Reporting of accidents and maintenance of records of equipment, training, and health checkup, whereas, in BMWM Rules, 1998 Duties are not delineated, better Barcoding and GPS not documented and vaccinations for HCWs not documented, Records not documented.

Accident Reporting:

Major accidents are reported to authorities and in annual report whereas, No specific reporting of accidents were mandated in BMWM Rules,1998.

Deep Burial:

As per rules 2016, Deep Burial is an option for only remote and rural areas and not in towns and villages with less than 5 lakhs population.

Chemical Treatment:

Changes to chemical treatment from 1% hypochlorite to 10% hypochlorite in 2016 which was again rolled back to 1%-2% in 2018.

Fetes:

No demarcation of foetus was mentioned in BMWM rules 1998 but the new amendment of rules in 2016 said Foetus younger than the age of viability is to be treated as human anatomical waste.

Drugs:

Antibiotics and other drugs and solid chemical waste suggested for incineration Cytotoxic drugs: return back to supplier and incineration up to 1200 C whereas, the rules, 1998 mentioned that all the drugs to be discarded in the black bag for cytotoxic drugs, destruction and drugs disposal in secured landfills

Liquid-infected waste:

Effluent treatment plant is mandatory, and effluent to conform to standards mentioned whereas rules, 1998 states chemical treatment and discharge into drains to conform to effluent standards mentioned.

Microbiology and biotechnology waste:

Rules, 2016 states the Pre-treatment of infectious waste as per the WHO guidelines whereas pre-treatment was not at all mandatory in rules, 1998.

Infected plastics, sharps and glass:

The infected plastics and sharps go in the red bag and the white container, respectively, and are sent to authorized recyclers. The glass articles are discarded in a cardboard box with blue marking whereas, infected plastics, metal sharps, and glass go in the blue container with disinfectant, and local autoclaving/microwaving/incineration is recommended.

Recycling:

A focus on recycling of plastic, sharps, and glass to authorized recyclers whereas, no such mention in rules, 1998.

Form I:

Changed to accident reporting from application for authorization.

Form-II:

Changed to Authorization or renewal of Authorization from Annual Report in rules, 1998.

Form-III:

Changed to Authorization for opening a facility for collectin, reception, treatment, storage, transport, and disposal of BMW from Accident Reporting in BMW Rules in 1998.

Form-IV:

Changed to Annual Report from Authorization for operating a facility for collection, reception, treatment, storage, transport, and disposal of BMW.

Form-V:

Changed to Application for filing appeal against order passed by the prescribed authority from Application for filing appeal against order passed by the prescribed authority in rules 1998.

FURTHER DEVELOPMENTS

Further, after publishing Bio-Medical Waste Management Rules, 2016 the Ministry of Environment, Forest and Climate change made some amendments and published Biomedical Waste Management (Amendment) Rules, 2018 on 16th March, 2018. In this amendment, typographical errors were corrected, rules regarding non-infectious wastes were updated.

Gujarat High Court Telegram Channel for High Court Advocates, Litigants & other stake holders

High Court of Gujarat, starts its own Telegram Channel

To make it more convenient for high court advocates, litigants & other stake holders, High Court of Gujarat has started its official Telegram Channel.

Gujarat High Court Telegram Channel for High Court Advocates, Litigants & other stake holders

Gujarat High Court Telegram Channel for High Court Advocates, Litigants & other stake holders

In its official press release, they mention that “Updates like Daily Notices, Circulars, Press Releases, Youtube Live Streaming Links, Complete Causelists, Miscellaneous, Notifications and other important updates being uploaded on the website of the High Court will also be simultaneously shared on this Telegram Channel, starting from 1st March, 2021”

 

You can join the Gujarat High Court telegram channel here : High Court of Gujarat Telegram Channel

Also Read: Gujarat High Court had recently started live streaming of proceedings on its youtube channel

 

Prime Minister Narendra Modi will virtually release a commemorative postage stamp on Gujarat High Court

PM Modi to unveil Postage Stamp On Gujarat High Court on its Diamond Jubilee celebrations

The Gujarat High Court will mark its Diamond Jubilee celebrations. The High Court has completed sixty years of its establishment in May 2020.

Prime Minister Narendra Modi will virtually release a commemorative postage stamp on Gujarat High Court on Saturday as part of the institution’s Diamond Jubilee celebrations. An official release issued by the high court’s Registrar said on Friday. The Gujarat High Court has completed sixty years of its establishment on May 1, 2020.
Though the Prime Minister was supposed to personally attend one of the events and release the stamp as part of the Diamond Jubilee, the celebrations were postponed due to the coronavirus outbreak in Gujarat, the press release said. Now, the stamp will be released virtually by PM Modi on Saturday, it said.

“The Prime Minister has kindly consented to grace the function and do the honours of releasing the commemorative postage stamp of Diamond Jubilee of the High Court of Gujarat at 10.30 am on February 6, 2021,” it said. The Prime Minister will also address the gathering via video link.

PM Modi To Unveil Postage Stamp On Gujarat High Court
Prime Minister Narendra Modi will virtually release a commemorative postage stamp on Gujarat High Court

Ahmedabad: Prime Minister Narendra Modi will virtually release a commemorative postage stamp on Gujarat High Court on Saturday as part of the institution’s Diamond Jubilee celebrations. An official release issued by the high court’s Registrar said on Friday. The Gujarat High Court has completed sixty years of its establishment on May 1, 2020.
Though the Prime Minister was supposed to personally attend one of the events and release the stamp as part of the Diamond Jubilee, the celebrations were postponed due to the coronavirus outbreak in Gujarat, the press release said. Now, the stamp will be released virtually by PM Modi on Saturday, it said.

“The Prime Minister has kindly consented to grace the function and do the honours of releasing the commemorative postage stamp of Diamond Jubilee of the High Court of Gujarat at 10.30 am on February 6, 2021,” it said. The Prime Minister will also address the gathering via video link.

Gujarat Chief Minister Vijay Rupani and Chief Justice of the Gujarat High Court, Justice Vikram Nath will also address the gathering via video conference.

 

Prime Minister Narendra Modi will virtually release a commemorative postage stamp on Gujarat High Court

Prime Minister Narendra Modi will virtually release a commemorative postage stamp on Gujarat High Court

Originally Posted here
Bhatt & Joshi Associates, High Court Lawyers, High Court Advocates - Quashing Lawyers

Legal provisions for Quashing of FIR, High Court

Background of legal provisions for Quashing of FIR, by High Court Advocate

The legal term quash has been derived from the Anglo- French word casser meaning “to annul” and ultimately from Latin cassus, meaning void. The court has the power to quash unreasonable or irregular or oppressive subpoenas, injections, indictments and orders. When a judge is unable to deliver a judgement in a criminal matter case, in vague of a defective indictment, the courts typically quash the indictment. 

Under section 482 of the Code of criminal Procedure the power of quashing is defined. The section reads as:

482. Saving the inherent powers of the High Court. 

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

This section closely resembles section 151 of the Code of Civil procedure. In a case of CBI v. Maninder Singh, it was held that the power under section 482 of CrPC must be used very sparingly  and especially in economic offences, merely because the party had reached a settlement with the bank cannot be a ground for quashing criminal proceedings. But this section doesn’t enhance the power of the High Court. Rather protects the inherent powers of the court. It does not give any new powers. The jurisdiction of the High court has a vast scope, but it is the practice that this section should be used only in exceptional cases. 

The Supreme Court has laid down some principles which would help to govern the inherent jurisdiction of the court given under the section are as follows: 

  1. the power is not to be resorted to if there is a specific provision in the code for the redress of the grievance of the aggrieved party; 
  2. it should be exercised very sparingly to prevent abuse of the process of any court or otherwise to secure the ends of justice; 
  3. it should not be exercised as against the express bar of the law engrafted in any other provision of the code. Whenever the court has inherent power, the court does not function as a court of appeal or revision. 

Inherent powers cannot be exercised to review judgement. 

In a case N Naveen Kumar v. State of AP, the accused was convicted in this case for bribery. Some of his property was directed to be sold by auction. That was in addition to the sentence of imprisonment and fine. An appeal against this was dismissed. An application was made by the legal heirs of the accused for permission to deposit certain sums in lieu of auction sale of property. This was held to be not tenable before the Appellate Court. The bar under section 397(2) of the code is applicable to the revisional powers only not to inherent powers. Even under section 341 of the code, the inherent power overrides the express bar against revision.

Under what circumstances the powers of Quashing are exercised by the High Court 

Inherent power under Section 482 in a matter of quashing of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. The power under section 482 is very wide and conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court and the said power is not to be used to choke or smother a legitimate prosecution. 

The high court can quash an FIR or a complaint in exercise of its powers under article 26 of the Constitution of India or under section 482 CrPC:

  1. Where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused.
  2. Where the allegations in the FIR and other materials accompanying FIR do not disclose a cognizable offence justifying an investigation under section 156(1) of CrPC except an order of a magistrate under section 155(2) CrPC.
  3. Where uncontroverted allegations in the FIR or the complaint and the evidence collected in support do not disclose the commission of any offence and make out a case against the accused.
  4. Where the allegations made in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence.
  5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
  6. Where there is an express legal bar engrafted in the CrPC or the concerned act to the institution of criminal proceeding or where there is a specific provision in the CrPC or concerned act providing efficacious redress.
  7. Where a criminal proceeding is manifestly attended with mala fide or where proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

The Supreme Court also has settled that the High Court should not entertain writ petitions under Article 226 and 227 and petitions unde section 482 for granting or rejecting request for bail which is the function of lower court. The High Court’s power under section 482 is not affected by the provision in section 497(3). The Supreme Court said:

Even if it is an interlocutory order, the High court’s inherent jurisdiction under section 482 is not affected by the provisions of section 497(3) CrPC. That The High Court may refuse to exercise its jurisdiction under section 482 on the basis of self-imposed restriction is a different aspect. It cannot be denied that for securing the ends of justice, the High court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified.

Need help with Quashing and FIR?  Reach out to us now

Bhatt & Joshi Associates, High Court Lawyers, High Court Advocates, NCLT Lawyers - Gujarat High Court

Gujarat High Court directs Govt to send people who don’t wear masks to work in Covid-19 centers

The Gujarat High Court held that imposition of fine on not wearing masks is not acting as a sufficient deterrent among the people and the State Government may consider making violators work at Covid-19 centres.

The division bench of Chief Justice Vikram Nath and Judge JB Pardiwala said this while hearing a PIL filed by Advocate Vishal Awtani.

The Gujarat High Court in its order directed the State Government said, people violating social distancing would do at least 4-5 hours non-medical duty at a Covid Care Centre for 5-15 days, as decided by authority, such as cleaning, housekeeping, cooking, helping, serving, preparation of the record, data-keeping, etc.

Bhatt & Joshi Associates, High Court Lawyers, High Court Advocates, NCLT Lawyers - Gujarat High Court begins live-streaming

Gujarat High Court starts live streaming of proceedings

The Gujarat high court on 26 Oct 2020 became the first in the country to start live streaming proceedings on a YouTube channel, with the court of Chief Justice Vikram Nath accessible to the public through a link on the court’s official website.
Chief Justice of India (CJI) S.A. Bobde said on Monday that in practice though, live streaming could be misused as already he was facing several complaints over the virtual hearings taking place over the videoconferencing app Vidyo.

According to an administrative order issued by Justice Nath, the live telecast from Court No. 1 was purely on an experimental basis, and the “aspect of continuing with or adapting the modality of live court proceedings will be decided based on the outcome of this trial”.

The first hearing that was live streamed on 26 Oct 2020, was a plea seeking relief for admission to medical colleges through NEET for students who had not taken the Class 12 exam from Gujarat. The court issued a notice to the state government and reserved its order in the case.

Proceedings of a  Gjarat High Court cases were live on the YouTube link — provided on the HighCourt of Gujarat— for over five hours and about half-a-dozen cases were heard. Around 68,324 viewers watched the channel on the same day.

All high court benches have been functioning through video conferencing since March 24 amid the Covid-19 pandemic, in which advocates, parties, victims and witnesses are made to participate in a video hearing.

In a statement, the high court referred to a Supreme Court judgment which ruled that the public should be allowed to view hearings conducted through video conferencing. The communication referenced a public interest litigation (PIL) filed by Nirma University School of Law student Pruthviraj Sinh Zala that sought the court to issue directions for live streaming to keep with the principles of access to justice. Hearing the PIL, the Supreme Court, on April 6, 2020, issued seven guidelines for web-based hearings and live streaming of court proceedings, saying that the “successful implementation will ensure that the judiciary rises to face the unique challenge presented by the outbreak of Covid-19”.

“In the Model Video Conferencing Rules as prescribed by the e-Committee of the Supreme Court of India, it has been provided that the public will be allowed to view the court hearing conducted through video conferencing,” the Gujarat HC’s chief justice said in his order.

Welcoming the order, Advocate Aaditya Bhatt, a high court lawyer in Ahmedabad, said: “It will usher in a new era of transparency in the judicial system. It will also make the lawyers accountable to their clients.” Advocate Aseem Pandya, former president of Gujarat High Court Advocates Association, said, “This is one of the remarkable and great moments for judiciary in our country.”

“Sunlight is the best disinfectant,” the SC had observed in September 2018 in a judgment that paved the way for live streaming of court proceedings. Two years down the line, CJI Bobde said on Monday that in practice, live streaming could be misused. Sharing his thoughts on live streaming as part of suo motu proceedings on court functioning during the pandemic, CJI Bobde, heading a three-judge bench, said, “In principle, I agree that there should be live streaming but in practice, you must hear me. As CJI, I have to deal with so many complaints over the virtual court proceedings.”

The observation followed a suggestion by Attorney General KK Venugopal who suggested that since the Gujarat high court had taken the lead in live streaming the proceedings, the Supreme Court could follow suit.

The bench, also comprising Justices DY Chandrachud and LN Rao, said, “There can be some negative use or abuse of live streaming.” Justice Chandrachud, who heads the e-committee of the SC responsible for enhancing virtual court proceedings, told Venugopal that a delay of 20 seconds occurs between the live streaming and actual proceedings in the Gujarat high court. This ensures a check on anything untoward going live.

Justice Chandrachud said at present the SC was focusing on enhancing the video conferencing facility. “The idea is to have one video conferencing facility for all high courts and district courts and a separate facility for the Supreme Court. Bids have been invited to manage the entire videoconferencing facility,” Justice Chandrachud said.

For better connectivity, the CJI sought the Centre’s help to enhance the optical fibre network. “In states which do not have fibre optics coverage, we have to rely on satellites,” CJI Bobde said.

Originally Published in Hindustan Times

Writ petition before the Gujarat High Court

What is writ petition before the Gujarat High Court

As per the Indian Constitution, under Article 226, High Courts can adjudicate on the aspects of Legal as well as Fundamental Rights, whereas Supreme Court can adjudicate on Fundamental Rights, under Article 32. In the context of State of Gujarat, a writ is an order by a Gujarat High Court to a Government authorities, Lower court or courts, directing them to do something or stop them from doing something. However, it shall be the same conceptual framework for all the High Courts. Writ is a form of written command in the name of the court. It directs you to act in a specific way. In this article we may explore the same in the context of Gujarat High Court or in the context of Article 226 of the Constitution of India.

Gujarat High Court

Gujarat High Court

Introduction

Fundamental Rights are contained in Part III of the Indian Constitution including the right to equality, right to life and liberty etc. Whereas, legal rights are rights enshrined under some statute, or they may simply be claimed by way of equity. However, mere provision for Fundamental Rights or Legal Rights may not be sufficient. The remedy to resolve, if your rights are violated is important. To protect Fundamental Rights as well as Legal Rights the Indian Constitution, under Article 226 provides the right to approach the High Court, Gujarat High Court more specifically, to any person/ citizens whose Right has been violated.

What is a writ?

Fundamentally, a writ is a formal written order issued by anybody, executive or judicial, authorized to do so. In modern times, this body is generally judicial. Therefore, a writ can be understood as a formal written order issued by a Court having authority to issue such an order. Orders, warrants, directions, summons etc. are all essentially writs. 

A writ petition is an application filed before the competent Court, i.e. in this context Gujarat High Court, requesting it to issue a specific writ. As per the Indian Constitution, Gujarat High Court holds powers under Article 226,  against the decision of any court/individual lower according to their jurisdiction. A Writ petition for a civil or criminal nature depending on the situation can be filed by an Individual/aggrieved party to a higher level of court against the order/decision of the lower court.

Under What Circumstances you may need to writ petition before High Court of Gujarat?

Writ petition is generally filed in contravention of rights or injustice is served to any individual/aggrieved. In the Context of State of Gujarat, it is a remedial measure provided by the constitution against the authority regulating the law and order in the country for the following reasons:

  1. To help citizens defend their rights against court orders.
  2. To provide an alternative to the aggrieved when impugned order is not objected by the appeals made to the authorized higher authorities in the legal system.
  3. To make sure justice served but not justice denied.

You can file the writ petition in Gujarat High Court under Article 226 of the Indian constitution. You can also file Writ Petitions in India for a civil or a criminal act.

  • You can file a criminal writ petition when the cause of action in relation to the criminal law such as the right of accused, bail, etc.
  • You can file a civil writ petition when someone commits a civil wrong such as IPR, taxes, etc.

Types of Writs before Gujarat High Court

There are about five types of Writs, which one can file before the Gujarat High Court 

  1. Writ of Habeas Corpus:
    • A petition for personal liberty or release from detention can be filed by an Individual through a petition of Habeas Corpus which means ‘to have control of body’. On receipt of the petition against the order of the lower court or the individual under which the person is or being detained, the court can issue a direction of release.
    • It is in the nature of an order calling upon the person who has detained another to produce the latter before the court
      • To know on what ground he has been detained
      • To set him free if there is no legal justification for the
        imprisonment
    • For instance, a writ petition of Habeas Corpus for release of any person can be made if he is to be placed before the magistrate within 24 hours or if he is arrested for no reason or the reason for his arrest is unjustifiable.
    • Increasing Scope of Habeas corpus
      • Kanu Sanyal v. District Magistrate: the court may examine the legality of the detention without requiring the person detained to be produced before it
      • Sheela Barse v. State of Maharashtra: if the detained person is unable to pray for the writ of habeas corpus, someone else may pray for such writ on his behalf.
      • Nilabati Behera v. State of Orissa: The petitioner was awarded compensation of Rs. 1, 50, 000.
  2. Writ of Mandamus:
    • A petition to issue a command is a Writ of Mandamus. To issue a direction to a lower authority or to any Individual to restrain him from doing any activity, which can result in injustice to the general public or any specific group or individual. Such a petition can command any public authority or tribunal to perform an act which it is bound to perform.
    • The Writ can granted against a public authority if
      • Acted against the law
      • Exceeded his limits of power
      • Acted with mala fides
      • Did not apply his mind
      • Abused his discretionary powers
      • Did not take into account relevant consideration
      • Has taken into account irrelevant consideration
    • For instance, It is the duty of the Judge of a Court to make a decision only on the basis of relevant facts presented, if he fails to do so, with the filling of a petition to a Superior Court, he can be made to do an action in a prescribed way.
    • Case Laws
      • Hemendra v Gauhati University : Mandamus was issued to direct a University to announce that the petitioner has passed where, University had refused so to declare though the petitioner had
        obtained the pass marks required by the statutory rules of the University.
      • Barada Kanta v State of West Bengal : Writ of Mandamus cannot be issued against an individual person or any private organization because they are not entrusted with a public duty.
  3. Writ of Prohibition:
    • A petition to issue a direction or command to any local authority or court to restrict it from acting beyond its jurisdictional powers. A writ of prohibition popularly known as ‘stay order’ is usually issued with the consequences for doing any act or taking action against its reserved powers.
    • It means “To be Certified”. Both preventive and curative. Issued by SC and HC’s for quashing the order of any inferior court, tribunal or Quasi Judicial body.
    • Propositions laid in issuing this writ by the High Court in Hari Vishnu Kamath Vs. Ahmad Ishaque 1955-I S 1104 : ((s) AIR 1955 SC 233)
      •  It is issued to correct the errors of Jurisdiction.
      • When court or tribunal acts illegal in its jurisdiction.
      • Order against principles of natural justice.
      • Court acts in exercise of its supervisory and not appellate Jurisdiction.
      • An error in the decision or determination itself may also be amenable to a writ of Certiorari.
    •  For instance, a Writ of Prohibition can be filed with the Supreme Court to restrict any High Court from taking any decision which is not in the authority of the High Court (‘HC’). 
    • Case Laws:
      • Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors., (1958) SCR 1240, the parameters for the exercise of jurisdiction.
        • Check whether inferior court has exceeded its jurisdiction.
        • Mere formal and technical errors doesn’t attract this.
  4. Writ of Certiorari:
    • A petition to issue an order or command against the decision or order of the lower authority where it was found that the authority has disregarded the laws and principles of natural justice in taking the decision is a Writ of Certiorari. In short, the petition calls for the records or the facts from the lower authority on the basis of which any summon or order was issued. On the satisfaction of facts /records placed by the lower authority, the decision shall be accepted or restricted.
    • For instance, A Writ of Certiorari can be filed by any aggrieved person against the decision of any District Court (DC) to any High Court through which the is sought to be nulled/ quashed.
    • Propositions laid in issuing this writ by the High Court in Hari Vishnu Kamath Vs. Ahmad Ishaque 1955-I S 1104 : ((s) AIR 1955 SC 233)
      • It is issued to correct the errors of Jurisdiction.
      • When court or tribunal acts illegal in its jurisdiction.
      • Order against principles of natural justice.
      • Court acts in exercise of its supervisory and not appellate Jurisdiction.
      • An error in the decision or determination itself may also be amenable to a writ of Certiorari
  5. Writ of Quo Warranto:
    • A petition to restrict – a person to hold a position in any government office or involvement in any decision relating to the victim is a Writ of Quo Warranto. It is required to prevent the official to exercise any powers of the position as such which he is not entitled to hold and/or to nullify the decision taken by him if any. The writ shall be applicable to all public offices and not on private organizations.
    • Issued to restrain a person from holding a public office subject to following Conditions:
      1. Public office created by a statue
      2. Person to be appointed by a statue or statutory instrument.
    • For instance, to restrict a person incompetent to hold the position of a sub-inspector due to his incapability or low qualification, a Writ of Quo Warranto can be filed with the appropriate court of justice.
    • It means “what is your authority”.
      • Subramanian Swamy petition against Jayalalitha in 2001. Two PIL’s against her
        appointment.
      • Manohar Reddy vs Union of India: two advocates filed a petition quashing the appointment of a Judge of a HC of AP and a writ is in the nature of Mandamus commanding the Bar Council of AP to cancel the enrollment as an advocate N V Ramana.

Judicial Review

  • Over and above forms of writ, Judicial review is the idea, fundamental to the system of government, that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judicial branch. Judicial review allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the constitution. Judicial review was established in the classic case of Marbury v. Madison, 5 US 137 (1803). Dealt under Article 13, Article 32 and Article 226 of the Constitution of India, Judicial review is one of the checks and balances in the separation of powers. It is the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority.
  • Judicial review should be understood in the context of both the development of two distinct legal systems (civil law and common law) and two theories of democracy (legislative supremacy and separation of powers) is that some countries with common-law systems do not have judicial review of primary legislation.

To Conclude:

The concept of Writ petition was brought in the Constitution of India to help a victim if he/she is deprived of any right or injustice made to him or to help him fight against any decision taken by the last legal authority. To file a Writ petition before Gujarat High Court the person has to either take the help of a legal adviser or hire a lawyer to file a petition on his behalf.

Please Note:

  • Concept of Writ petition is universal across all the High Courts in the Context of Legal as well as Fundamental rights, within the scope of Article 226 of Indian Constitution and also before the Supreme Court in the context of Fundamental Rights under Article 32. But the present article is written in the context of Gujarat High Court, therefore there is largely reference to Gujarat High Court. 

To know the difference between Write and Appeal, Click here.