In This Issue

Delhi HC: Bug Me Not! Filing of Successive Writ Petitions on the same Grounds Can Invite a Penalty

Delhi High Court dismissed the petition with exemplary cost of Rupees Three Lakhs imposed on petitioner for filing successive judicial proceedings in court.

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Delhi HC: Group Admins to relax, not liable for comments by members

The Delhi High Court recently ruled that group administrators cannot be held liable for the messages posted by other group members

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Bills That We Look Forward To

2016 had witnessed a lot of laws being passed, from laws on real estate to bankruptcy, there have been striking reforms in the financial, corporate, and legal sector to reduce uncertainty relating to several problems in law that have emerged with the passage of time. We look forward to five Bills pending in the Parliament

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Delhi HC: Bug Me Not! Filing of Successive Writ Petitions on the same Grounds Can Invite a Penalty

 

 

In an iconic judgment passed on November 29, 2016 Justice Valmiki Mehta of the Delhi High Court, in the case of S. N Sahu v. Chairman, Rajyasabha and Others[1] directed the Petitioner to pay an amount of Rupees Three Lakhs for filing six recurrent writ petitions with similar facts and grounds. This order could be seen as a promising move by the judiciary to curb the menace of filing of writ petitions one after the other by one petitioner to facilitate a hearing for the earlier admitted petition.

 

Background in Brief  

  • Sri S. N Sahu, the Petitioner had filed six writ petitions under Article 226 of the Indian Constitution. To the dismay of the Hon’ble Court, para 1 of the sixth petition filed against the Secretariat of Rajya Sabha stated that the five writ petitions (also filed against the Secretariat of Rajya Sabha) are pending but the same be treated as non-existent and nullity.

  • All the writ petitions revolved around the same issue with minor changes, seeking cancellation of the appointment of Sri Ramacharyulu and Sri Mukul Pande as Additional Secretaries of the Rajya Sabha Secretariat.

  • The sixth writ petition asked for the issuance of the writ of quo warranto, mandamus, and certiorari against Rajya Sabha Secretariat for appointing Sri Ramacharyulu and Sri Mukul Pande. The Petitioner prayed for the appointment of the abovementioned to be declared illegal, arbitrary, and perverse.

The Court Observed

  • The foremost issue raised by the court as against the Petitioner’s claim was regarding the maintainability of praying for the writ of quo warranto. The writ of quo warranto can be issued for violation of a statutory provision. Settled law emphasizes that the jurisdiction of High Court is limited to a situation wherein an appointment is contrary to the statutory Rules; in the present case no averments could be affirmed.

  • To claim certiorari the petitioner must plead Locus Standi. However, the present petition does not plead any Locus Standi of the petitioner for filing the petition. It must be understood that a person has Locus Standi only if the personal interest of the person concerned is affected. The petitioner would have had Locus if it concerned his own employment. However, a more plausible move for the Petitioner would have been filing of a PIL than a writ petition and since the writ petition that has been filed is not a PIL, it may not yield a suitable remedy. Therefore, the Petitioner’s claim for issuing the writ of certiorari could not be treated as maintainable.

  • The third claim of mandamus therefore would resultantly fail owing to it being related to the first two prayers.

  • Further, the point critically highlighted by the court was related to the Petitioner’s act of declaring the first five petitions filed by him as non-existent and null and void in his sixth petition. The court observed that there exists no law that allows writ petitions filed under constitutional jurisdiction to suddenly become invisible and void. If the petitioner does not wish to further pursue the petitions so filed by him earlier, he may be welcome to file an application for withdrawal of the same.

 

Decision

 

Therefore, the Delhi High Court dismissed the petition with an exemplary cost of Rupees Three Lakhs imposed on the petitioner understanding that the petitioner possesses enough resources for filing successive judicial proceedings in court.

 

Comment

 

It would be true to say that the High Courts are in charge of administration of justice in a state. It would also be true to hold that today the courts are jaded with sequential petitions and frivolous cases increasing the back log of cases and reducing the efficiency of courts in speedy administration of justice. Therefore, if a writ petition is brought on grounds and facts same as to an earlier petition it should not be entertained[2] and the present case at hand goes on to reaffirm that.

 

[1] W.P.(C) No. 11146/2016 & CM Nos. 43572-73/2016, Pronounced on December 5, 2017.

 

 [2] Piyare Lal Khanna v. the Financial Commissioner (AIR 1973 HP 50); Khacher Singh v. State of Uttar Pradesh and Others (AIR 1995 All 338).

 

 

 

 

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Delhi HC: Group Admins to relax, not liable for comments by members  

 

 

 

Numerous cases have been reported where the group administrators of WhatsApp, Hike, Facebook groups have been held liable for the defamatory or offensive content posted by the group members. For instance, last year, in October, a group administrator in Nagpur, Maharashtra was arrested for the offensive content posted on the group, against PM Narendra Modi[1]. Another ‘administrator’ of a WhatsApp group in Latur district had been arrested for objectionable content posted on the group[2].

 

The recent judgement of the Delhi High Court, has relieved the group administrator of the mobile application service Telegram and Google Group from responsibility for the comments or statements made by the members in the group. In view thereof, we analyze the legal position of the group administrator in light of the decision of the Hon’ble High Court and the provisions of the IT Act, 2000.

 

The plaintiff, in the case of Ashish Bhalla v. Suresh Chawdhary [3], had filed a suit seeking permanent injunction and damages for defamation inter alia, against Mr. Vishal Dubey who was the Administrator of a Telegram and Google Group on which the allegedly defamatory statements were made. To explain the position of the Group Admin, the Learned Justice Rajiv Sahai Endlaw of the High Court said, “I am unable to understand as to how the administrator of a group can be held liable for defamation, even if any, by the statements made by a member of the group. To make an administrator of an online platform liable for defamation would be like making the manufacturer of the newsprint on which defamatory statements are published liable for defamation.”

 

What does an Administrator do?

 

Group Admins, as they are generally called, are the ones who create the closed/open groups by adding or deleting members to the same. The obligations of an administrator are to create a group and add suitable members to it. His discretion is only limited to choosing who can/cannot be a member of the group. After that the statements produced, created, pasted, forwarded in the group is not under the control of the Admin. He does not have any special power to regulate the content on the group which the other members do not have. Hence it is safe to say that once the group are created, the functioning of the Admin and that of the members is at par with each other, except the power of adding or deleting members to the group. The Admin does not have any exclusive discretion to control the content circulated on the group. 

Whether a Group Administrator is an intermediary?

 

One of the aspects dealing with the liability of the group admin and the extent thereof is whether the administrator is an intermediary within the meaning of Section 2(w) of the Information Technology Act, 2000. Section 2(w) of the Information Technology Act, 2000 states:

 

"Intermediary" refers to any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record.

 

A group admin may be considered as an intermediary as, he facilitates a platform for unknown people to communicate. Even people who cannot otherwise contact each other, can come in contact through groups. An intermediary is liable in the event it fails to comply with due diligence obligations laid down under rule 3 (2) and 3 (3) of the Rules however, since a group admin lacks the authority to initiate transmission himself and control content, he cannot comply with these obligations. Further, unless the two conditions of mens rea and lack of due diligence do not co-exist, the intermediary cannot be held liable. Hence when messages are created or forwarded by members, the conditions of mens rea of the Admin remain unsatisfied, releasing the administrator from any liability.

 

With the level of activity on these social networking and messaging applications, it is not practical to expect one administrator (in spite of due diligence) to keep track of or scrutinize each and every message that is posted. Another notable aspect is that some applications such as WhatsApp, Hike, etc facilitate more than one group administrators. Hence it is not the sole discretion of one person to decide the morality or immorality, offensiveness of the posts, making the matter more and more complicated. Therefore the simplest solution to such cases is that every person should be made liable for his own posts, messages or opinions. We hope that this will only increase the consequentiality of members before posting harsh or offensive opinions anywhere.

 

[1]Find news item here

[2]Find news item here

[3]CS(OS) No.188/2016

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Bills That We Look Forward To

 

 

2016 had witnessed a lot of laws being passed, from laws on real estate to bankruptcy, there have been striking reforms in the financial, corporate, and legal sector to reduce uncertainty relating to several problems in law that have emerged with the passage of time. Out of the several pending Bills, we look forward to passing of the following:

 

The Companies (Amendment) Bill, 2016

 

This Bill amending certain provisions of the Companies Act, 2013 was introduced in Lok Sabha in March 2016 on recommendations from the Companies Law Committee. This Bill was thereafter referred to the Standing Committee on Finance for deliberation. Broadly this proposed amendment relates to structuring, disclosures, and compliance requirement for companies. Three years since the passing of the Companies Act 2013 it has faced several revisions time and again. The 2016 Amendment proposes to further revise and liberalize the requirements for conducting business.

 

  • It has attempted to remove the requirement of providing separate offer letters to individuals to whom private placement is likely to be made. However, in case of any return of allotment the Registrar of Companies must be notified.

  • The Amending Bill further amends Section 188 pertaining to related party transactions and says that where in a company 90% or more members in number are relatives of promoters or related parties they shall be allowed to vote on the companies special resolutions to approve any contract or arrangement. Earlier such related parties did not possess any right to vote in a special resolution in matters relating to the company’s contracts or arrangements.

  • Further, the Bill requires that any person or a group of persons who hold a beneficial control in a company must disclose their respective interests.

  • Where on one hand the proposed Bill limits the number of Intermediary companies through which investments can be made in a company, all limits on layers of subsidiaries that a company can have are proposed to be removed. Therefore, as per the proposed Bill a company may have a number of subsidiaries without any limitation.

  • The proposed amendment also removes the provisions relating to prohibition of forward dealing and insider trading which is regulated by the SEBI (Prohibition of Insider Trading) Regulations, 2015.

  • Earlier provisions highlighted that Independent directors should have no pecuniary interest whatsoever with the company, the proposed amendment does away with this compliance and allows pecuniary interest up to 10% of his total income.

We look forward to these changes being implemented.

 

The Consumer Protection Bill, 2015

 

The Consumer Protection Bill 2015 once passed will be set to replace the Consumer Protection Act, 1986. The aim of the Bill is to hold the rights of the consumers sacrosanct and paramount. The Bill in addition to imposing high penalties for misleading ads highlights that a redressal mechanism body shall be set up at district, state, and national level in the form of Consumer Dispute Redressal Commissions. Further –

  • A Consumer Protection Authority is delineated under the Bill as an investigation agency.

  • The Bill empowers an aggrieved consumer to file a claim of product liability against the manufacturer.

  • The Bill also gives way to certain grey areas that need to be addressed and gaps that need to be filled. E.g., it gives the Central Government supervisory powers over the Consumer Redressal commissions in District, State, and Central level and the directions given by the central government shall be binding upon these commissions. The question of law that the Bill raises is pertaining to violation of the doctrine of separation of power as the District commission which is a quasi-judicial body will be headed by the District magistrate, an executive.

  • Furthermore, product liability includes defects in goods and deficiency in services and proving the factum of deficiency in services to supplement a consumer claim remains unclear under the Bill.

The Ministry of Consumer Affairs is hopeful that the Bill will crystallize into the Amending Act by the Parliamentary Budget session[1].

 

Payment of Wages (Amendment) Bill, 2016

 

This Bill was recently introduced in Lok Sabha in December, 2016 and proposes to make suitable amendments to the Payment of Wages Act, 1936. The 1936 Act mandates that payment of wages can be carried out by issuing coins or currency notes or both, the employer can also pay wages to his employees by issuing a cheque or by crediting the amount accrued to the bank account of the employee. However, the latter could be effected only after obtaining a written permission from the employee. This Bill removes the requirement of obtaining a written permission from the employee. With the government’s move on going cashless in the wake of cash crisis and demonetization, doing away with the requirement of obtaining employee’s permission for payment of wages through wire transfer is sure to relieve employers from the hassles of making wage payments in cash. Additionally, the relevant government may specify the industrial or other establishments where an employer should pay wages by cheques or through wire transfers.

 

Employees Compensation (Amendment) Bill, 2016

 

This Bill was introduced in Lok Sabha in August 2016 to amend the Employees Compensation Act, 1923. The Bill stipulates payment of compensation to employees and their dependents in event of any injury caused to them by industrial accidents in the course of employment and such injuries also include occupational diseases. The amending Bill introduces a provision wherein the employer should inform the employees of all the rights to compensation available to them under the Act and all these disclosures shall be made in writing (in Hindi/ English/ Relevant Official Language) at the time of employment. The Bill highlights that if the employer fails to comply with this requirement and fails to inform the employees of their right to compensation, a penalty shall be levied upon him that may range in between INR 50000 to INR 100000.

 

This Bill empowers the Employees Compensation Commissioner to hear any dispute arising under the Act and the Commissioner’s decisions would be appealable in the High Court provided the amount in dispute is above or equal to INR 10000.

 

Motor Vehicles (Amendment) Bill, 2016

 

The Motor Vehicles (Amendment) Bill was introduced in Lok Sabha in August 2016 with an aim to amend the Motor Vehicles Act 1988 that provides standards for Motor vehicles, grant of driving licenses, and penalties for violating of the provisions under the Act. The Bill requires the Central Government to formulate a National Transportation Policy with a view to establish a planning framework for road transport and for identifying priority areas for road transport system. This Bill also allows the Central Government to order for recall of motor vehicles if such motor vehicles are, by any means, capable of causing damage to the environment, or the driver, or other people on the road. Further, the Bill states that the manufacturer will have to reimburse the buyers for full cost of the vehicle in dispute or replace the defective vehicle with another vehicle with similar or better specifications.

 

The Motor Vehicles (Amendment) Bill proposes to make numerous pioneering changes, one of which is also the much awaited defining moment of throwing light on the validation of web aggregator services. The Bill describes an aggregator as a digital intermediary or a market place where services may be availed by a passenger to connect with the drivers who offer transportation services. The aggregator must obtain the requisite licenses to commence such a business/ service and additionally comply with the requirements of the Information Technology Act, 2000.

 

[1] PTI, Govt. Hopes Consumer Protection Bill to Pass in Budget Session, MONEYCONTROL (December 23, 2016) http://www.moneycontrol.com/news/current-affairs/govt-hopes-consumer-protection-bill-to-passbudget-session_8157261.htmld 

 

 

 

 

 

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