Sex on basis of ‘genuine promise’ to marry that didn’t fructify is not rape: Delhi HC - Business Guardian
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Sex on basis of ‘genuine promise’ to marry that didn’t fructify is not rape: Delhi HC

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While rendering a very pertinent, powerful and practical judgment titled Shailendra Kumar Yadav vs State in the matter of CRL.REV.P. 175/2021 & CRL.M.A. 6024/2021 that was finally delivered on April 5, 2022, the Delhi High Court minced literally no words to make it absolutely clear that a “genuine promise” to marry that did not materialize in future cannot be said to be false, and therefore doesn’t amount to rape. The single Judge Bench of Justice Subramonium Prasad observed that, “If it is found that the promise of marriage was genuine and that the marriage failed to fructify due to external circumstances, then the promise cannot be said to be false, and consent as per Section 90 IPC is not vitiated.” The Delhi High Court also noted that Trial Court must exercise its judicial mind to the facts of the case before arriving at the conclusion that there is sufficient ground for proceeding against the accused.

To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of the Delhi High Court comprising of Justice Subramonium Prasad sets the ball rolling by first and foremost putting forth in para 1 that, “This petition under Sections 397/401 Cr.P.C. read with Section 482 Cr.P.C. has been filed for setting aside the Order dated 08.03.2021, passed by the learned Additional Sessions Judge/SFTC – 2 (Central), Tis Hazari Courts, Delhi, in Case No. 436/2020 arising out of FIR No. 319/2019 dated 10.11.2019 registered at P.S. Paharganj for offences under Section 376(2)(n) of the Indian Penal Code, 1860 (hereinafter, “IPC”), framing charges against the Petitioner for offences under Section 376(2)(n) IPC.”

While elaborating on the facts of the case, the Bench then envisages in para 2 that, “Facts, in brief, leading up to the instant petition are as follows:

a) It is stated that the Petitioner had extended a false promise of marriage to the prosecutrix on the basis of which he had sustained a physical relationship with her. The prosecutrix and the Petitioner were engaged, and the wedding was postponed due to some issues in the family of the prosecutrix. Thereafter, arguments arose about the date of marriage as well as the financial condition of the prosecutrix. It is stated that the prosecutrix requested the Petitioner to marry her by way of court marriage or in an Arya Samaj temple, and this request was rejected by the Petitioner.

b) It is stated that the Petitioner and his family would quibble with the prosecutrix with regard to her way of living and her lifestyle, and other trivial matters, in order to put an end to the marriage. The prosecutrix has alleged that the issues were being raised by the Petitioner and his family due to the fact that the prosecutrix was not financially well-off, and that the Petitioner wanted to marry a girl whose father would have the wherewithal to invest money in his marriage. On the basis of this complaint, the instant FIR was registered under Section 376(2)(n) IPC against the Petitioner.

c) Vide Order dated 28.01.2020, this Court granted anticipatory bail to the Petitioner herein. Chargesheet was filed on 19.08.2020, and vide Order dated 08.03.2021, the Ld. Trial framed charges against the Petitioner under Section 376(2)(n) IPC. Aggrieved by this, the Petitioner has approached this Court by way of the instant revision petition.”

To put things in perspective, the Bench then points out in para 10 that, “Before delving into the correctness of the impugned Order dated 08.03.2021 whereby the Ld. Trial Court framed charges under Section 376(2)(n) IPC against the Petitioner, this Court finds it necessary to reiterate the law pertaining to the framing of charges and the scope of this Court to interfere under Sections 397/401 Cr.P.C. In Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4, the Supreme Court laid down the principles that are to be followed while dealing with discharge under Section 227 Cr.P.C. or framing of charges under Section 228 Cr.P.C. The same has been reproduced as under:

“10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” (emphasis supplied).”

As it turned out, the Bench then reiterates in para 11 that, “The Supreme Court has time and again held that at the stage of framing of charges, the Court possesses the power to sift and weigh the evidence for the limited purpose of ascertaining whether or not a prima facie case has been made out against the accused. The Ld. Trial Court must exercise its judicial mind to the facts of the case before arriving at the conclusion that there is sufficient ground for proceeding against the accused. This exercise must be undertaken so as to ensure that an individual does not have to be put through the rigours of the criminal judicial system for no fault of their own.”

While citing the relevant case law, the Bench then states in para 12 that, “Similarly, in P. Vijayan v. State of Kerala, (2010) 2 SCC 398, the Supreme Court had enunciated that a Judge was not a mere post office that was to frame the charge at the behest of the prosecution, but was compelled to apply its mind to the facts of the case. The relevant portion of the said judgement has been reproduced as under:

“10. Before considering the merits of the claim of both the parties, it is useful to refer to Section 227 of the Code of Criminal Procedure, 1973, which reads as under:

“227. Discharge.—If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”

If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.

11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” (emphasis supplied).”

As we see, the Bench then notes in para 13 that, “In the instant case, it has been alleged that the Petitioner has committed an offence under Section 376(2)(n) IPC as per which whoever commits rape repeatedly on the same woman shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine. The allegation is that under the garb of marriage, the Petitioner has repeatedly raped the prosecutrix.”

Quite pertinently, the Bench then observes in para 14 that, “At this juncture, it would be pertinent to examine the difference between a false promise of marriage and a breach of promise to marry. In the latter, sexual relations are initiated on the premise that the two individuals will marry at a later point of time. However, in the former, sexual relations take place without any intention of marrying at all and the consent that is obtained for the said relations to take place is vitiated by way of misconception of fact. The Supreme Court has elaborated this aspect in various judgements. In Pramod Suryabhan Pawar v. State of Maharashtra and Anr., (2019) 9 SCC 608, the Supreme Court had observed as follows:

“16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] this Court observed : (SCC pp. 682-84, paras 21 & 24)

“21. … There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently.

24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact”, the fact must have an immediate relevance”. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, [Ed. : The matter between two asterisks has been emphasised in original.] unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her [Ed. : The matter between two asterisks has been emphasised in original.] .” (emphasis supplied)

18. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.””

While citing yet another distinguished case, the Bench then enshrines in para 15 that, “Similarly, the Supreme Court had categorically distinguished between rape and consensual sex, as well as the distinction between the mere breach of a promise, and not fulfilling a false promise in Deepak Gulati v. State of Haryana, (2013) 7 SCC 675. It had been stated as follows:

“21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.

24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact”, the fact must have an immediate relevance”. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.””

Most significantly, the Bench then minces just no words to hold in para 16 that, “Therefore, in order to arrive at the conclusion that sexual relations were coerced, it is necessary to examine that whether at the stage of rendering a promise to marry, it was done with the intention of not keeping the promise and, therefore, was false at the inception itself (See also Sonu @ Subash Kumar v. State of Uttar Pradesh and Anr., 2021 SCC OnLine SC 181). If it is found that the promise of marriage was genuine and that the marriage failed to fructify due to external circumstances, then the promise cannot be said to be false, and consent as per Section 90 IPC is not vitiated.”

Most remarkably, the Bench then also lays bare in para 17 that, “The FIR as well as the Status Report stipulate that the Petitioner and the prosecutrix were in a long-term relationship and even a roka(engagement) had taken place. Pictures of the engagement ceremony have also been produced before this Court. The FIR further states that a wedding ceremony was supposed to take place and that it was only at the instance of the prosecutrix that the marriage was postponed. The FIR goes on to state that thereafter, arguments began to take place between the prosecutrix and the Petitioner. Further, the prosecutrix started facing resistance from the Petitioner’s family who were against the marriage and that this led to the breaking off of the relationship between the Petitioner and the prosecutrix. The Section 164 CrPC statement of the prosecutrix reveals that it took the Petitioner three months to convince the prosecutrix’s parents to allow her to marry him.”

Be it noted, the Bench then remarks in para 18 that, “As per Section 90 IPC, consent given under fear or misconception cannot be said to be consent, and in this context, it becomes relevant to factor in the aspect that the prosecutrix and the Petitioner were in a long term relationship. Furthermore, even an engagement ceremony had taken place between the two and the same was attended by all family members, which indicates that the Petitioner did indeed intend to marry the prosecutrix. Just because the relationship ended on hostile terms, it cannot be said there was no intention of the Petitioner to marry the prosecutrix in the first place. Flowing from this, this Court is of the opinion that the consent so accorded by the prosecutrix for the establishment of a physical relationship was not predicated upon misconception or fear.”

It is also worth noting that the Bench then observes in para 19 that, “The impugned Order dated 08.03.2021 fails to accord any reasons to substantiate as to how there is sufficient material to proceed against the Petitioner under Section 376(2)(n) IPC. The said Order has merely recorded the submission of the Ld. APP therein that there is sufficient material on record and has proceeded at the behest of the prosecutor, without providing any reasons to justify its stand. As has been stated above, the Ld. Trial Court is not a mere post office and must apply its mind to the facts of the case to arrive at the conclusion as to whether a prima facie case is made out against the accused that would warrant charges to be framed against them. The impugned Order dated 08.03.2021 has evidently failed to perform its duty and has rendered a mechanical order on charge without sifting or weighing the evidence before it. Due to the legal infirmity replete in the said Order, this Court deems it fit to exercise its jurisdiction under Sections 397/401 Cr.P.C. read with Section 482 Cr.P.C. to set the same aside.”

Finally, the Bench then concludes by holding in para 20 that, “In light of the above observations, the instant petition is allowed, along with pending application(s), if any.”

All told, the Delhi High Court has minced absolutely no words to make it crystal clear that sex on the basis of “genuine promise” to marry that didn’t fructify is not rape. Such “genuine promise” cannot be said to be false. So sex on basis of such “genuine promise” definitely as per this latest, learned, laudable and landmark judgment by the Delhi High Court cannot be termed as rape. It certainly merits no reiteration that all the courts must definitely abide by what the Delhi High Court has held in this leading case! There can certainly be just no denying or disputing it!

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Legally Speaking

Supreme Court holds off on decision in Baba Ramdev contempt case

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6 months ago

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May 15, 2024

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The Supreme Court has deferred its decision on a contempt notice issued against yoga guru Ramdev, his associate Balkrishna, and their company Patanjali Ayurved in connection with a case involving misleading advertisements. The bench, comprising Justices Hima Kohli and Ahsanuddin Amanullah, stated, “Orders on the contempt notice issued to respondents 5 to 7 (Patanjali Ayurved Ltd, Balkrishna, and Ramdev) are reserved.” The Uttarakhand State Licensing Authority (SLA) informed the court that manufacturing licenses for 14 products of Patanjali Ayurved Ltd and Divya Pharmacy have been suspended immediately. The Supreme Court noted that the counsel representing the firm had requested time to submit an affidavit detailing the actions taken to retract the advertisements of Patanjali products and to recall the medicines.

Highlighting the importance of public awareness and responsible influence, the court emphasized that Baba Ramdev wields significant influence and should employ it responsibly. It awaits an affidavit from Patanjali outlining the measures implemented to withdraw the existing misleading advertisements of the company’s products, with instructions for submission within three weeks.

During the proceedings, Indian Medical Association (IMA) President R V Asokan extended an unconditional apology to the bench for remarks made against the top court in a recent interview with news agency PTI. Justice Kohli conveyed to Asokan that public figures cannot criticize the court in media interviews. However, the court indicated its disinclination to accept the apology affidavit submitted by the IMA president at present. In an earlier hearing on May 7, the apex court had denounced Asokan’s statements as “very, very unacceptable.” The court reiterated its stance that celebrities and social media influencers are equally liable for the products they endorse, warning that if such products are found to be misleading, they could face repercussions.

The case stems from a plea filed in 2022 by the IMA alleging a smear campaign by Patanjali against the Covid-19 vaccination drive and modern medical systems. As the legal proceedings unfold, the Supreme Court continues to emphasize the importance of accountability and responsible conduct in advertising and public discourse. The case underscores the need for stringent regulations to curb misleading advertisements and ensure consumer protection. With the demand for transparency and ethical practices on the rise, the judiciary plays a pivotal role in upholding standards of integrity in commercial communications.

As the court awaits the submission of the affidavit from Patanjali, stakeholders across industries are keenly observing the developments, anticipating their implications on advertising practices and regulatory enforcement in the country.

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Tech

Australia fights Musk’s platform over control of online content

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6 months ago

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May 11, 2024

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In a courtroom battle that underscores the complex interplay between global tech giants and national regulatory frameworks, Elon Musk’s X, formerly known as Twitter, finds itself at odds with Australian law over the removal of graphic content depicting a terrorist attack.

At the heart of the dispute lies a fundamental question: to what extent should a platform like X be compelled to adhere to the laws of a specific country when it comes to content moderation? The legal showdown commenced as the eSafety Commissioner of Australia sought the removal of 65 posts showcasing a harrowing video of an Assyrian Christian bishop being stabbed during a sermon in Sydney, classified as a terrorist incident by authorities.

Tim Begbie, representing the cyber regulator, argued that while X has policies in place to remove harmful content, it cannot claim unilateral authority to decide what is acceptable under Australian law. He contended that X’s resistance to globally removing the posts challenges the notion of reasonableness within the scope of Australia’s Online Safety Act.

X’s stance, guided by its mission to uphold free speech, underscores a broader philosophical debate surrounding the jurisdictional reach of national laws in the digital realm. The company maintains that while it has blocked access to the posts for Australian users, it refuses to implement global removal, asserting that the internet should not be governed by the laws of a single nation.

However, Begbie argued that geo-blocking, the solution proposed by X, is ineffective due to the widespread use of virtual private networks (VPNs) by a significant portion of the Australian population.

Amidst the legal wrangling, X’s lawyer, Bret Walker, contended that the company had taken reasonable steps to comply with Australian laws while balancing the principles of free expression. He emphasized the importance of allowing global access to newsworthy content, cautioning against the suppression of information on a global scale. The implications of such an approach, he argued, extend beyond Australia’s borders, potentially setting a precedent for censorship on a global scale.

As the case unfolds in the Federal Court, Judge Geoffrey Kennett has issued a temporary takedown order for the posts, extending it until June 10 pending a final decision. The outcome of this legal battle is poised to have far-reaching implications, not only for the regulation of online content in Australia but also for the broader discourse surrounding internet governance and free speech in the digital age.

Beyond the legal arguments, the case underscores the evolving dynamics between tech platforms and regulatory authorities, highlighting the challenges of reconciling competing interests in an increasingly interconnected world. With the proliferation of digital platforms and the rise of social media, questions surrounding content moderation, censorship, and the balance between freedom of expression and societal harm have come to the forefront of public discourse.

In the digital era, where information knows no borders and online platforms wield immense influence over public discourse, the case of X versus Australian law serves as a microcosm of the broader tensions between technology, governance, and individual rights. As societies grapple with the complexities of the digital age, the need for robust legal frameworks, ethical guidelines, and international cooperation becomes ever more apparent.

As the legal battle between X and Australian authorities unfolds, it underscores the intricate relationship between technology, law, and societal norms in the digital age. At stake is not just the removal of graphic content depicting a heinous act but also the broader principles of free speech, censorship, and the jurisdictional reach of national regulations in a globalized world.

The outcome of this case carries significant implications for the future of online content moderation and regulation. On one hand, proponents of free speech argue that platforms like X should have the autonomy to determine their content policies without being unduly influenced by the laws of individual countries. They contend that a global approach to content moderation ensures consistency and prevents the fragmentation of the internet along national lines.

On the other hand, proponents of regulation argue that national laws play a crucial role in safeguarding citizens from harmful content and upholding community standards. They assert that while platforms may operate globally, they must abide by the laws of the countries in which they operate, particularly when it comes to content that poses a threat to public safety or incites violence.

Amidst these competing interests, the case highlights the need for a nuanced approach to content moderation that balances the principles of free speech with the protection of users from harm. It also underscores the importance of international cooperation and dialogue in addressing cross-border challenges in the digital realm.

Beyond the legal realm, the case has broader implications for the future of internet governance and the regulation of online platforms. As technology continues to evolve at a rapid pace, policymakers around the world face the daunting task of crafting regulations that are effective, enforceable, and adaptable to the ever-changing digital landscape.

Moreover, the case raises important questions about the role of tech companies in shaping public discourse and influencing democratic processes. With social media platforms serving as key channels for information dissemination and political engagement, the decisions made by companies like X have far-reaching consequences for the functioning of democratic societies.

Ultimately, the resolution of this case will have significant implications not only for X and its users but also for the broader digital ecosystem. It will shape the future trajectory of online content moderation, influence regulatory approaches to technology platforms, and set precedents for how governments and tech companies interact in the digital age.

As the legal proceedings continue, stakeholders from across sectors will closely monitor developments, recognizing that the outcome of this case has the potential to reshape the digital landscape for years to come. Whether it leads to greater clarity in content moderation policies, a re-evaluation of regulatory frameworks, or a deeper understanding of the complexities of governing the internet, the case of X versus Australian law represents a pivotal moment in the ongoing debate over the future of online governance and free speech in the digital age.

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Legally Speaking

Supreme Court Framed Issues To Consider, Hearing In July 2024: Challenge To Surrogacy Law

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7 months ago

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May 7, 2024

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SC seeks Centre’s reply on fresh pleas against CAA

The Supreme Court in the case Arun Muthuvel v. Union of India has elucidated the issues it will consider in a batch of petitions challenging provisions of the Surrogacy Regulation Act, 2021 and the Surrogacy Regulation Rules, 2022. The bench comprising of Justice BV Nagarathna and Justice AG Masih passed the order recording the following issues:

  1. Whether the prohibition of commercial surrogacy as stated under Section 4(ii)(b) and Section 4(ii)(c) of the Surrogacy (Regulation) Act, 2021 is constitutional?
  2. Whether the right of a couple to avail surrogacy being restricted to married couples between the age of 23 to 50 years and in case of female and between 26 to 55 years in case of male as it is being provided as stated under Section 4(iii)(c)(I) read with Section 2(1)(h) of the Surrogacy (Regulation) Act, is constitutional?
  3. Whether the right of a single woman to avail surrogacy being restricted to only widows or divorcees between the ages of 35 to 45 years as it is provided being under Section 2(1)(s) of the Surrogacy, the Regulation Act 2021, is constitutional?
  4. Whether the right of an intending couple to avail surrogacy being restricted to only those couples who do not have a surviving child as provided as stated under Section 4(iii)(c)(II) of the Surrogacy (Regulation) Act 2021, is constitutional?
  5. Whether individuals who initiated the process of availing surrogacy which being prior to the enactment of the Surrogacy, the Regulation Act, 2021 have any right to avail surrogacy in a manner which being beyond the scope of the Surrogacy (Regulation) Act, 2021, save for cases falling within the ambit of Section 53 of the Act?

The petitioner in the plea highlighted an additional issue which relates to exclusion of single men from the purview of Surrogacy Regulation Act.

Therefore, the lead petition in the matter has been filed by an infertility specialist from Chennai, Dr. Arun Muthuvel, through Advocate Mohini Priya and Advocate Ameyavikrama Thanvi.

Therefore, while highlighting various contradictions in the Surrogacy Regulation Act and the Assisted Reproductive Technology (Regulation) Act, 2021, thus, the petitioner in the plea points out that the twin legislations inaugurated a legal regime that was discriminatory and was violative of the constitutional rights of privacy and reproductive autonomy.

The Supreme Court in the case observed and has agreed to hear the petition wherein it challenges against the two Acts. In September last year, several other petitions and applications were filed wherein similar questions were raised, such as whether it was constitutional to exclude unmarried women from the ambit of the Surrogacy Act, or whether limiting the number of donations made by an oocyte donor under the ART Act would amount to unscientific and irrational restrictions.

The bench in the case observed and has expressed reservations about hearing the challenges to both the Acts simultaneously, as the linkage between the provisions of the two Acts could not be ascertained in the present matter. Further, the said court decided that issues wrt the Surrogacy Regulation Act will be heard first, followed by those which relate to the ART Act.

The court asked the parties to file written submissions on the foregoing issues. It has also been clarified by the said court that the petitioners need not restrict their submissions to the issues recorded by the court. Any ‘related’ issue may also be raised during the proceedings.

Accordingly, the court listed the matter for further consideration on July 30, 2024.

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Legally Speaking

SC ruling on spectrum allocation doesn’t affect satellites

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7 months ago

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May 2, 2024

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SC seeks Centre’s reply on fresh pleas against CAA

The Supreme Court’s decision to reject the government’s application seeking clarification on administrative allocation of spectrum for non-mobile services is not expected to impact the allocation of satellite spectrum as outlined in the Telecom Bill, according to highly placed sources. In February 2012, the Supreme Court had upheld that auctions were the preferred method for allocating scarce public resources like telecom spectrum.

The Centre had filed a miscellaneous application in December last year seeking a clarification on the matter of administrative allocation of spectrum, which was mentioned in court last week. However, the SC registrar refused to accept the plea, arguing that it was seeking a review of the 2012 order and that there was no ‘reasonable cause’ to entertain it.

Government sources emphasized that this decision would not change the existing laws governing spectrum allocations for satellite communications, as clearly stated in the Telecom Bill. Sources clarified that the application did not seek to amend the 2012 judgment on 2G spectrum allotment nor did it seek permission for administratively allocating spectrum. Spectrum will continue to be auctioned for mobile services, while for the 19 specific use cases cited in the Telecom Bill, it will be allocated administratively.

The government had filed the miscellaneous application at the Supreme Court to explain its intentions before tabling the bill in Parliament, emphasizing that it was not seeking any permission from the court. The application aimed to seek appropriate clarifications from the court regarding the CPIL judgment in 2012, to establish a spectrum assignment framework that includes methods of assignment other than auction in suitable cases, to best serve the common good. In 2012, the SC had criticized the ‘first-come, first served’ method for spectrum allocation, known as the CPIL judgment, and had quashed the 2G spectrum allotted by the United Progressive Alliance government.

Since then, the government has been issuing spectrum administratively in certain cases where auctions are not technically or economically preferred or optimal. The Telecom Bill’s First Schedule lists satellite spectrum and 18 other sectors where administrative allocations will be compulsory, including law enforcement, public broadcasting, in-flight and maritime connectivity, the Indian Army and Coast Guard, and radio backhaul for telecom services. Government sources noted that all stakeholders were consulted on the issue, and the government was confident of its legal standing as outlined in the Telecommunications Act.

The SC, in a presidential reference, did not specify that all spectrum should be auctioned, only that for mobile services. The Supreme Court’s decision not to accept the government’s application seeking clarification on spectrum allocation for non-mobile services does not alter the framework outlined in the Telecom Bill. While auctions remain the preferred method for mobile services, administrative allocations will continue for specific use cases, including satellite spectrum, as delineated in the bill.

The rejection of the application underscores the importance of adherence to established legal procedures and the judiciary’s role in upholding regulatory frameworks. Moving forward, the government remains committed to transparent and efficient spectrum allocation, balancing the imperatives of economic efficiency and public interest in the telecommunications sector.

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Legally Speaking

Legal Victory for Ankiti Bose: Limits Imposed on Defamatory Content Regarding Former Zilingo Chief

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7 months ago

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May 1, 2024

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A legal dispute has unfolded involving B2B fashion startup Zilingo, with former CEO Ankiti Bose on one side, and co-founder Dhruv Kapoor and former COO Aadi Vaidya on the opposing side.

A recent court decision in Delhi has brought focus to a legal dispute involving Ankiti Bose, the former CEO of Zilingo, a prominent technology platform. The court issued an ex parte order in Bose’s favor, instructing certain parties, including Zilingo co-founder Dhruv Kapoor and former COO Aadi Vaidya, to refrain from making defamatory statements against Bose. This decision underscores the importance of protecting reputational rights against unfair reporting.

The court’s ruling cited a prima facie case in Bose’s favor, acknowledging her legal right to safeguard her reputation from damaging remarks. It emphasized that failure to act promptly could lead to irreparable harm to Bose’s reputation. The order specifically bars Kapoor and Vaidya from making any further defamatory postings against the former CEO.

This legal action stems from a broader conflict within Zilingo, a B2B fashion startup that has faced financial struggles since its inception in 2015. Bose’s departure from the company was contentious, marked by allegations of misconduct and underperformance. She subsequently filed a First Information Report (FIR) accusing Kapoor and Vaidya of sexual harassment and business irregularities. In response, the accused have dismissed these claims as retaliatory, asserting that Bose’s actions were prompted by her dismissal from the company.

The litigation highlights the complexities of corporate disputes and the broader implications for individuals and businesses. Beyond the legalities, it reflects the challenges faced by startups navigating internal strife amidst financial difficulties. Zilingo’s trajectory, from inception to liquidation, encapsulates the turbulent landscape of the tech industry and underscores the importance of legal protections for individuals like Bose seeking to safeguard their professional standing amidst controversy. The court’s intervention serves as a reminder of the gravity of reputational issues in the modern corporate environment, particularly amidst the complexities of startup dynamics and leadership disputes.

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Legally Speaking

Supreme Court In Patanjali Case: Concerned With All FMCG/Drugs Companies Affecting Lives Of Children And Elderly Through Misleading Ads

Published

7 months ago

on

April 26, 2024

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The Supreme Court in the case Indian Medical Association v. Union Of India observed and has clarified against Patanjali over publication of misleading advertisements that it was not dealing with Patanjali as a standalone entity; rather, the Court’s concern, in public interest, extended to all those Fast Moving Consumer Goods, FMCGs or drugs companies which take consumers of their products for a ride through misleading advertisements. The bench comprising of Justice Hima Kohli and Justice Ahsanuddin Amanullah in its order stated that, this court must clarify that we are not here to gun for a particular party, or a particular agency or a particular authority.

This being the absolute Public Interest Litigation, PIL since it is in the larger interest of the consumers, the public to know which way they are going and how and why they can be misled and how […] is acting to prevent that misuse. Thus, at the end, this is also as we said a part of the process of rule of law. If that is violated, then it affects […].

The court in the case observed that the implementation of laws regulating misleading ads in relation to medicines require deeper examination, as the products are used for babies, school going children and senior citizens based on the ads: Further, the court stated that this court is of the opinion that the issue which relates to implementation of the relevant provisions of the Drugs and Magic Remedies Act and the Rules, the Drugs and Cosmetic Act and the Rules, and the Consumers Act and the relevant Rules needs closer examination in the light of the grievances raised by the petitioner…not just limited to the respondents before this court but to all similarly situated or placed FMCGs who have […] misleading advertisements, and taking the public for a ride…affecting the health of babies, school going children and senior citizens who have been consuming products on the basis of the said misrepresentation.

The court while taking into account the misleading ads issued in electronic media impleaded the Ministry of Information and Broadcasting, Ministry of Information Technology, and Ministry of Consumer Affairs. Therefore, the same was being done with a view to examine the steps taken by these Ministries to prevent abuse of Drugs and Magic Remedies (Objectionable Advertisements) Act 1954 (and the Rules), the Drugs and Cosmetic Act 1940 (and Rules) and the Consumer Protection Act. Accordingly, the court listed the matter for further consideration on May 07, 2024.

Background Of The Case:

The Court raps Uttarakhand authorities The said court also came down heavily on the State of Uttarakhand for the failure of its licensing authorities to take legal action against Patanjali and its subsidiary Divya Pharmacy. The bench also asked why it should not think that the authorities were ‘hand in glove’ with Patanjali or Divya Pharmacy.

The court in its order stated that it was ‘appalled’ to note that apart from ‘pushing the file’, the State Licensing Authorities did nothing and were merely trying to ‘pass on the buck’ to ‘somehow delay the matter.’ The court stated that the State Licensing Authority is “equally complicit” due to its inaction against Divya Pharmacy despite having information about t heir advertisements violating the Drugs and Magic Remedies (Objectionable Advertisements) Act.

Further, the court stated that it was refraining from issuing contempt notices to other officers. Further, the court directed that all officers holding the post of Joint Director of the State Licensing Authority, Haridwar between 2018 till date shall also file affidavits explaining inaction on their part.

Background of the Case:

The contempt case was initiated wherein the petition is filed by the Indian Medical Association against Patanjali’s advertisements attacking allopathy and making claims about curing certain diseases. On the Supreme Court reprimand, the Patanjali on last November had assured that it would refrain from such advertisements. The court in the case noted that the misleading advertisements continued, thus, the Court had issued contempt notice to Patanjali and its MD in February.

The court in march considering that reply to the contempt notice was not filed, the personal appearance of the Patanjali MD as well as Baba Ramdev, who featured in the press conferences and advertisements published after the undertaking, was ordered by the said Court. Therefore, the Patanjali MD filed an affidavit wherein it is stated that the impugned advertisements were meant to contain only general statements but inadvertently included offending sentences. Further, the court stated that the advertisements were bona-fide and that Patanjali’s media personnel was not ‘cognizant’ of the November order (wherein the undertaking was given before the Supreme Court).

The affidavit filed also contained an averment that the Drugs and Magic Remedies Act was in an “archaic state” as it was enacted at a time when scientific evidence regarding Ayurvedic medicines was lacking. On the last date of hearing, both Baba Ramdev and MD Balkrishna were physically present in Court. The court expressed its reservations about MD Balkrishna’s affidavit, calling it “perfunctory” and “mere lip service”. The court gave last opportunity to the alleged contemnors for filing a proper affidavit.

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