Let’s take a moment for “Moment Marketing” and recent Olympics Saga!!
In a recent interesting development, the Advertising Standards Council of India (hereinafter referred to as ASCI) has placed its strong objections on brands using images of India’s Olympics’ medallists to promote their own products or services.
DISCIPLINARY AMENDMENT TO THE BAR COUNCIL OF INDIA RULES.
The subject of statutory licensing of copyrighted material, is one which has been the subject of much debate over the last few years. As such, the saThe Bar Council of India (BCI) Rules is literally a Bible for Indian lawyers. The Rules forms the foundation of litigation practices in India and is a compendium of rules and regulations that a lawyer has to mandatorily follow while practicing in any Court of Law in India.
ADVERTISEMENT BY ONLINE GAMING PLATFORMS.
The ASCI (Advertisements Standards Council of India) via its press release dated November 24, 2020, introduced Guidelines on Online Gaming Advertisements (herein after referred as ‘Guidelines’) to provide a streamlined regulatory framework.
Right To Be Forgotten: Roadies Winner Ashutosh Kaushik Moves Delhi High Court.
The Indian Daily, Indian Express recently reported that Ashutosh Kaushik, the Winner of Roadies 5.0 and Bigg Boss (2008), has approached the Hon’ble Delhi High Court with a petition to issue directions to have all internet content related to his various past sensitive incidents including a 2009 drunken driving case and an altercation at a Mumbai cafe in 2013 to be removed from the internet.
MALDIVES LEGAL METROLOGY LAWS.
In a nutshell, the term “Legal metrology” refers to the application of standardized legal requirements to measurements as well as measuring instruments. It refers to that part of metrology which treats units of weighment and measurement, methods of weighment and measurement and weighing and measuring instruments..
Judicial Delays and Time Limit for Arguments – Supreme Court.
In a recent case, Ajit Mohan & Ors. v. Legislative Assembly National Capital Territory & ors. the Three Judge Bench of the Hon’ble Supreme Court of India in the Postscript of the Judgment has made some intriguing and riveting observations while drawing a context between judicial delays, pendency of cases and restriction of time period for oral submissions by Counsels.
Let’s take a moment for “Moment Marketing” and recent Olympics Saga!!
By Lucy Rana and Rupin Chopra
In a recent interesting development, the Advertising Standards Council of India (hereinafter referred to as ASCI) has placed its strong objections on brands using images of India’s Olympics’ medallists to promote their own products or services[1]. The ASCI’s General Secretary, Manisha Kapoor while remarking such ads as “misleading” has stated that usage of images of Olympics’ winners without the explicit permission of these celebrities, is a potential violation of the guidelines of the ASCI, as consumers may believe that these medallists use the said products or services, and may mislead consumers into buying them.
ASCI CODE- Code of Self-Regulation of Advertising Content in India
The ASCI has released guidelines in the form of a code on the digital use of social media for paid promotions and sponsorships, as it can lead the consumers to believe that the said celebrity or influencer in question, genuinely uses the products or service. This code is called the Code of Self-Regulation of Advertising Content in India.[2]
Under Chapter One of the Code which speaks about Truthful and Honest Representation, under subclause 1.3 it is said that Advertisements shall not, without permission from the person, firm or institution under reference, contain any reference to such person, firm or institution which confers an unjustified advantage on the product advertised or tends to bring the person, firm or institution into ridicule or disrepute. If and when required to do so by ASCI, the advertiser and the advertising agency shall produce explicit permission from the person, firm or institution to which reference is made in the advertisement. ASCI has raised objections from the consumer protection aspect, as well as the lack of permission sought from the medallists, which amounts to piggybacking on their success.
India has won seven medals in the Tokyo Olympics 2021 with athletes winning medals in weightlifting, javelin throw etc. The names and images of these athletes are being used by few giant Indian corporates for advertising and marketing their products and services in media. The use of the name and imagery of the gold medallist Neeraj Chopra however appears to be the most prevalent one.
Moment Marketing and PV Sindhu
Several Indian dailies have been reporting about PV Sindhu’s battle for personality or image rights. Reportedly, the ace Badminton player and Olympic Bronze medallist has through her sponsorship agency sent legal notices to several brands and companies including some giants for making unauthorized use of her image for marketing of their products[3]. This whole saga has given rise to the intriguing aspect of “moment marketing”.
Use of Neeraj Chopra’s Name for marketing
A very recent and pertinent example of such advertising can be the recent surge in offers/ discounts/ goodies being offered by various companies for people whose name is ‘Neeraj’, i.e. the first name of the Olympic Gold-Medallist Neeraj Chopra. For instance, a petrol pump in the Bharuch district of Gujarat, offered free fuel to people sharing his first name[4]. Further, readers may recall that the airline IndiGo recently announced that it will offer unlimited free air travel to Neeraj Chopra[5] (such advertising and media coverage can lead consumers to believe that Neeraj Chopra is a user/endorser of the said airlines). In this regard, Hindustan Times, in the aftermath of the gold medal win, had reported that many businesses including restaurants in Delhi had offered free food to all persons named Neeraj[6]! While such news coverage can be thought of as well-meaning by many, from a legal perspective such acts can be construed as an offset of misleading or ambush marketing – as they are basically using the name of Neeraj Chopra and his achievements to promote their own business, and gain publicity. Indeed, such examples can be thought of as consummate moment marketing! Although, one might argue that the above advertising is indirect.
What is moment marketing?
Moment marketing refers precisely to the ‘right time’ or the ‘moment’ of posting certain content, that could have a large potential impact on the performance of an ad. For instance, Amul is known for its topical content on current affairs in the form of comic strip illustrations. However, there is a fine line between a congratulatory post and using the performance of the Olympic winners to their own gain. PV Sindhu for instance, has taken objection in the use of her victory in the Olympics in posts on social media by large brands, to further their own tagline and brand motto. Her image has also been used in these promoted posts, which is beyond the realm of a mere congratulation as it may lead the public to believe that PV Sindhu is endorsed by the said brand. This is against Rule 40, Bye-law paragraph 3 of the Olympic Charter as well. The said Rule states that , “Except as permitted by the IOC Executive Board, no competitor, coach, trainer or official who participates in the Olympic Games may allow his person, name, picture or sports performances to be used for advertising purposes during the Olympic Games.”[7]
“When ads refer to or showcase celebrities without their explicit permission, such ads are in potential violation of the ASCI code,” said ASCI secretary general Manisha Kapoor, calling out brands in using the names of the athletes.
Conclusion
The concept of moment marketing and protection of image and personality rights of a celebrity have gained momentum in India only in the past few years. Media, including both print and electronic, were flooded with images of Olympic Winners after their historic triumphs during the Olympics. However, the law to protect the image rights of a celebrity has yet not developed adequately in India. Though, ASCI guidelines prohibit the unauthorized use of such images by brands, the same have persuasive value only and are not binding.
In comparison, the law in foreign jurisdictions like France and Germany appear to be more developed. For instance, under Article 9 of the French Civil Code, the use of an individual’s image is actionable. Similarly, in Germany, the right to privacy and personality rights of a celebrity are protected.
In view of this recent spurt and image rights disputes, it is hoped that more stringent laws will be formulated to protect the image and personality rights of a celebrity. Considering that the next Olympics is only 3 years away, we can hope that by then India would have seen more development in jurisprudence regarding the subject matter by then!
[2] http://iprmentlaw.com/wp-content/uploads/2018/03/ASCI-Code.pdf
[7] https://olympics.com/ioc/olympic-charter
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DISCIPLINARY AMENDMENT TO THE BAR COUNCIL OF INDIA RULES.
By Nihit Nagpal and Devika Mehra
The Bar Council of India (BCI) Rules is literally a Bible for Indian lawyers. The Rules forms the foundation of litigation practices in India and is a compendium of rules and regulations that a lawyer has to mandatorily follow while practicing in any Court of Law in India. It defines the decorum with which each lawyer should function and the manner in which the Bar of each Court should be administered.
While the BCI Rules are quite comprehensive and inclusive in nature, the BCI has, while using its power under Section 49(1)(c) of the Advocates Act, 1961, on June 25, 2021 issued a notification[1] providing for amendments to the BCI Rules. Section 49(1)(c) states:
The amended provision is reproduced herein below;
“49. General power of the Bar Council of India to make rules.— [(1)] The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe—
(c) the standard of professional conduct and etiquette to be observed by advocates;”
As per the amendment, a lawyer making any statement which is indecent or derogatory, defamatory, motivated, malicious, or mischievous against any Court, judge, State Bar Council, or the BCI, could be suspended or have their license to practice revoked.
Bringing in “Section V – Duties to the Society and Bar”, the amendment states:
“An Advocate shall conduct himself/herself as a gentleman/gentle lady in his/her day to day life and he/she shall not do any unlawful act, he/she shall not make any statement in the Print, Electronic or Social Media, which is indecent or derogatory, defamatory or motivated, malicious or mischievous against any Court or Judge or any member of Judiciary, or against State Bar Council or Bar Council of India nor shall any Advocate engage in any willful violation, disregard or defiance of any resolution or order of the State Bar Council or Bar Council of India and any such act/conduct shall amount to misconduct and such Advocates would be liable to be proceeded with under Section-35 or 36 of the Advocates’ Act, 1961.”
Further, “Section-VA: — Code of conduct and Disqualification for members of Bar Councils” states:
- No Member of any State Bar Council or of Bar Council of India shall be permitted to publish anything or to make any Statement or Press-Release in Print, Electronic or Social Media against any Resolution or Order of concerned State Bar Council or Bar Council of India or to make/use any derogatory or abusive language/comment/s/ word/s against the Bar Council or its office-bearers or members.
- The Decision of any State Bar Council or Bar Council of India shall not be criticized or attacked by any Member/s of Bar Council in public domain.
- No Advocate or any Member of any State Bar Council or the Bar Council of India shall undermine the dignity or authority of the State Bar Council or Bar Council of India.
- The Violation of this above mentioned clause (i) to (iii) of this code of conduct may amount to other misconduct under Section 35 of Advocates Act, 1961, and /or violation of Section-V and/or V-A shall result in suspension or removal of membership of such member from the Bar Council. The Bar Council of India may declare such Advocates (as mentioned above in Section-V) or any Member of Bar Council to be disqualified from contesting the elections of any Bar Association or Bar Council for any period, depending on the gravity of the misconduct. The State Bar Council/s may refer the matters of misconduct or violation of these Rules by any of its members to Bar Council of India.
- For declaring any Advocate or Member of Bar Council as disqualified from contesting the elections as aforesaid, Bar Council of India shall be required to hold an inquiry by a “3 Member Committee” headed by a Former Chief Justice or a former Judge of any High Court. The Committee shall be constituted by the Bar Council of India and may consist of any member of Bar Council of India or a Member or Office-Bearer of any State Bar Council or any Advocate with a minimum of 25 years of standing at the Bar.
- After any such reference of any case by Bar Council of India, the committee shall issue notice to the concerned Advocate(s)/ Member(s) and give him/her/them opportunity of hearing. Bar Council of India shall take its decision after consideration of the report of the Committee.
- The proceedings for disqualification before the Bar Council of India and/or the Committee/s constituted by it shall follow the norms of natural Justice and it will be deemed to be an order passed under Section 49(1)(a) or 49(1)(ab).
Within 2 days of the issuance of the aforesaid notification, the same led to a cacophonous debate in the legal fraternity. A Kerala Bar Council member, moved the Kerala High Court[2] with a petition challenging the new amendments. The advocate stated that the newly added rules were extremely vague and had a chilling effect on public engagement and participation by Advocates. It was also stated that the new rules blatantly violated decisions of the Supreme Court which have laid down the legally permissible restrictions on free speech and expressions. [3]
In view of the above, the Bar Council of India appeared before the Hon’ble Kerala High Court and submitted that the notification was yet to be approved by the Chief Justice of India, and hence, was not the Law of the Land yet.
However, more backlash came in when lawyers in two Orissa State Bar Council members filed a petition against the said notification before the Orissa High Court and sought intervention from the Court on the ground that the impugned notification imposed restrictions on lawyers, preventing criticism of the Judiciary or Bar councils in the public forum. This was followed by another Petition filed by a Mumbai based lawyer in the Bombay High Court on similar grounds.
Hence, keeping the quantum of opposition coming in against the notification, the Bar Council of India has kept the said notification, for the time being, in abeyance.
While the Petitioner has stated that the new rules not only fail to recognize that criticism, disagreement, dissent, etc. are all protected under Article 19 (1) (a)[4], it also fails to recognize that administration of justice and judges are open to public criticism and public scrutiny and that judges also have their accountability to the society.[5]
The fate of these Petitions and the fate of the lawyers’ freedom of speech, and whether these new rules even violate the freedom of speech, is a subject we shall get more clarity on as time progresses. ,
[1] https://egazette.nic.in/WriteReadData/2021/227925.pdf
[2] Rajesh Vijayan vs Bar Council of India & Ors., [Kerala High Court 25/10/2018]
[3] Shreya Singhal vs Union of India [SC 24/03/2015]
[4] Kedar Nath Singh vs State of Bihar 1962 AIR 955
[5] PN Duda vs P Shiv Shanker 1988 AIR 1208
ADVERTISEMENT BY ONLINE GAMING PLATFORMS.
By Rupin Chopra and Apalka Bareja
The ASCI (Advertisements Standards Council of India) via its press release dated November 24, 2020, introduced Guidelines on Online Gaming Advertisements (herein after referred as ‘Guidelines’) to provide a streamlined regulatory framework.
Read more about the Guidelines here- Online Gaming Advertisements ASCI India
On December 04 2020, The Ministry of Information and Broadcasting had issued an advisory, in pursuance of the Guidelines, to inform all television channel networks regarding the same. As per the advisory notice, advertisements on online gaming, fantasy sports etc., appear to be misleading and non-conforming with the Advertising Code laid down under Cable Television Network (Regulation) Act, 1995 and the Consumer Protection Act, 2019.
Also read All you need to know about Online Gaming in India
REASONING:
According to ASCI, gaming advertisements have been targeting youth and families suggesting online gaming as a source of income. Since online gaming requires inclusion of monetary funds, it entails various elements of risk which may result in financial losses. Further, gaming advertisements completely suppress any possibility of financial losses. Hence, a standardized guideline was required for all online gaming platforms to address the addictive nature as well as create awareness of financial risks in these advertisements.
In view of the advisory notice and reasoning, the ASCI proposed certain guidelines to ensure transparency in advertisements by online gaming platforms and protection of consumers which have been in effect from December 15, 2020.[1]
Also read Online Gaming Advertisement Guidelines ASCI
ASCI GUIDELINES ON ADVERTISEMENTS ON ONLINE GAMING
- There shall not be depiction of any person under the age of 18 or who appears to be a minor, being engaged in playing online gaming for real money winnings in any gaming advertisements. Similarly, no gaming advertisement shall suggest that such person can play these games as well. Hence, prohibiting depiction of minors on gaming advertisements.
- Every gaming advertisement must carry the following disclaimer:
‘This game involves an element of financial risk and may be addictive. Please play responsibly and at your own risk’
- For print/static advertisements, the disclosure shall occupy at least 20% of the space in the advertisement, contain same language and font, not be in italics and shall be in the same direction as the majority of the text.
- For audio/video advertisements, the disclaimer shall be placed in normal speaking pace at the end of the advertisement, contain same language as the advertisement and needs to in both audio and visual formats
- No advertisement shall present ‘online gaming for real money winnings’ as an income opportunity or an alternative employment option.
- No advertisement shall portray that the person engaged in ‘online gaming for real money winnings’ is more successful than compared to others. Hence, prohibiting the portrayal of comparison of success through such games.
CONCLUSION:
The Guidelines issued by ASCI shall ensure the benefit of the viewers and conformity of the Advertising Code. Since, online gaming industry is growing rapidly in India, it is important for a framework of Guidelines to exist for regulation and public welfare. A proposal for self-regulation body for online gaming industry has also been mentioned in NITI Ayog’s draft report on ‘Guiding Principles for the Uniform National-Level Regulation of Online Fantasy Sports Platforms in India’.[2] The Guidelines shall increase transparency and create a safer environment for the consumers.
[1] https://mib.gov.in/sites/default/files/Advisory.pdf
[2] https://niti.gov.in/sites/default/files/2020-12/FantasySports_DraftForComments.pdf
Right To Be Forgotten: Roadies Winner Ashutosh Kaushik Moves Delhi High Court.
By Lucy Rana and Shilpi Sharan
The Indian Daily, Indian Express recently reported that Ashutosh Kaushik, the Winner of Roadies 5.0 and Bigg Boss (2008), has approached the Hon’ble Delhi High Court with a petition to issue directions to have all internet content related to his various past sensitive incidents including a 2009 drunken driving case and an altercation at a Mumbai cafe in 2013 to be removed from the internet[1].
The Petitioner has made the plea under his ‘Right to be Forgotten’, which has been recognized as a right inherent to the right to privacy enshrined under Article 21 of the Constitution of India[2]. Right to be forgotten refers to the ability of individuals to erase, limit, delink, delete, or correct personal information on the internet that is misleading, embarrassing, irrelevant, or anachronistic.
Reportedly, the Petitioner has also stated that despite his successful career in the film industry, he still suffers from psychological torment caused by the numerous publications made about his erroneous actions committed a decade ago.
Delhi High Court on Right to be Forgotten- Jorawer Singh Mundy v. Union of India
The Counsel for the Petitioners in their have also relied on a recent judgment delivered by the Delhi High Court in the case of Jorawer Singh Mundy vs. Union of India & Ors.[3] , wherein Hon’ble Justice Pratibha Singh provided interim protection to an American Citizen,namely Jorwar Singh Mundy who pleaded for a direction to to Indian Kanoon, a law information and case law repository, for removal of the Delhi High Court’s verdict in a NDPS Act case, wherein the Plaintiff was the accused. Although he was acquitted of all charges in the impugned case, he asserted that the availability of the judgment online was a stain on his social image[4]. Expanding on this decision, the petition states that “That the Right to be Forgotten reflects the claim of an individual to have certain data deleted so that third persons can no longer trace them. The right enables a person to silence the past events of his life that are no longer occurring. Thus, the right to be Forgotten entitles individuals to have information, videos or photographs about themselves deleted from certain internet records so that search engines cannot find them.”
Right to be forgotten in India
Although the Indian law does not statutorily recognize the ‘right to be forgotten’ as distinctly as its provided under EU Data Protection Laws, in several cases the High Courts as well as the Supreme Court in the famous Aadhaar case while considering a citizen’s right to be forgottem remarked that “If we were to recognize a similar right, it would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest.”
Section 20 of the Personal Data Protection Bill, 2019 explicitly recognizes the ‘right to be forgotten’ and implementation of the Bill would allow persons a greater autonomy regarding the use of one’s personal information on the internet.
An order in favor of the petitioner in the immediate case, along with the Delhi High Court judgment for the American citizen, would set a strong precedent backing the “right to be forgotten” in India.
Reference
[1] https://indianexpress.com/article/explained/the-right-to-be-forgotten-india-explained-7418661/
[2] Right to be forgotten has been recognized as an inherent right of an individual by the High Courts as well as the Supreme Court in the famous Aadhaar case (2017) 10 SCC 1
[3] W.P.(C) 3918/2021
[4] W.P.(C) 3918/2021
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MALDIVES LEGAL METROLOGY LAWS.
By Rupin Chopra and Devika Mehra
In a nutshell, the term “Legal metrology” refers to the application of standardized legal requirements to measurements as well as measuring instruments. It refers to that part of metrology which treats units of weighment and measurement, methods of weighment and measurement and weighing and measuring instruments, in relation to the mandatory technical and legal requirements which have the objects of ensuring public guarantee from the point of view of security and accuracy of the weighments and measurements.
However, unlike the definition of ‘Legal Metrology’, the laws of Legal Metrology are not merely restricted to governing weighment and measurement, but also focus on consumer awareness by mandating printing of certain compliances on the label of a package. Thus, the term ‘Legal Metrology’ in this context has a much wider context than its literal meaning.
The Commonwealth Countries across the world have great similarity in their laws, since most them have their roots emerging from the Laws prevailing in the United Kingdom. The Laws of Maldives, too, are quite similar to those prevailing in India and are governed by Statutes discussed herein.
The Legal Metrology and Packing laws in Maldives are not yet crystalized under a dedicated Statute or Legislation. However, the laws in Maldives in general cover packaging regulations in the country, and one such law specifically covers Food and Tobacco products. Details of such statutes/laws in Maldives are as below:
- Regulation on Packaging and Labeling Tobacco Products [1]– The primary purpose of these regulations are to regulate packaging and labelling of tobacco products in the country of Maldives. This Act focuses on informing the consumers of the health hazards and risks of consuming tobacco.
- National Standard for Labelling Pre-Packaged Food[2] – This Act specifically aims towards the labelling of all prepackaged foods for consumers or for catering purposes. This also has certain provisions regarding presentation of such labelling.
- Consumer Protection Act [Act No. 1/96][3] – This Act determines the rights of the consumers and the protection of these rights.
The key takeaways from these Acts are as follows:
Label:
- The packaging may or may not contain all information over a label.
- Except for single ingredient foods, a list of ingredients shall be declared on the label.
- The name shall indicate the true nature of the food and normally be specific, and not generic.
- All ingredients shall be listed in descending order of ingoing weight (m/m) at the time of manufacture of the food.
- The net contents shall be declared in the metric system.
- The name and address of the manufacturer, packer, distributor, importer, exporter or vendor of the food shall be declared
Ingredients:
The following foods and ingredients are known to cause hypersensitivity and shall always be declared:
- Cereals containing gluten i.e. wheat, rye, barley, oats, spelt, or their hybridized strains and products of these;
- Crustacea and products of these;
- Eggs and egg products;
- Fish and fish products;
- Peanuts, soybeans, and products of these;
- Milk and milk products (lactose included);
- Tree nuts and nut productsl; and
- Sulphite in concentration of 10 mg/kg or more.
- Added water shall be declared in the list of ingredients except when the water forms part of an ingredient.
- Pork fat, lard and beef fat shall always be declared by their specific names.
Price:
- The selling price shall be clearly marked on the goods themselves, or at a place easily visible to those entering the trading premises, on all goods (besides those exempted by the Ministry of Trade and Industries), irrespective of whether sold in retail or in wholesale.
- When a consumer requests to buy a good at the marked price, it shall not be sold at a price higher than the stated price.
- The name and address of the manufacturer, packer, distributor, importer, exporter or vendor of the food shall be declared.
- The country of origin of the food shall be declared if its omission would mislead or deceive the consumer. When a food undergoes processing in a second country which changes its nature, the country in which the processing is performed shall be considered to be the country of origin for the purposes of labelling.
Cigarettes and Tobacco:
- Each cigarette pack should be packaged with a minimum of 20 (twenty) cigarettes.
- Each rolled cigarette pack should be packaged with a minimum of 50 (fifty) rolled cigarettes.
- Rolling paper used for rolling cigarettes should not have any printing or writing and must be clean.
- Warning notice publicized by the Ministry should be added to the cover of the pack and carton of tobacco products imported to the Maldives, tobacco products made in the Maldives and products sold in the Maldives containing tobacco. It will not be deemed as acting in accordance with this Regulation where a warning notice containing a different statement or picture is printed.
- Products containing tobacco should not be labelled in a way that promotes interest in smoking or increases advertising.
- Should not include any label or drawing or writing or any other such thing that purports to reduce health risk if that product is used.
- Warning photograph and writing on a pack or carton of a product containing tobacco should not be less than 90% (ninety percent) of the surface area of each part of the pack where warning notice is required
In light of the above, it can be established that though the laws in Maldives do not quite differ from those prevalent in India, there are certain aspects quite specific to the Republic of Maldives. It would also be relevant to mention here that non- compliance of statutory provisions pertaining to legal metrology laws also attracts penalties under the relevant Acts.
The practice of ensuring effective use of Legal Metrology laws is a big step towards maintaining healthy consumerism and consumer awareness, whilst keeping a strict check on the quality of the products whilst ensuring transparency from the producers, manufacturers and/or importers.
[1] http://health.gov.mv/Uploads/Downloads//Informations/Informations(168).pdf
[2] http://extwprlegs1.fao.org/docs/pdf/mdv172500.pdf
[3] https://www.vertic.org/media/National%20Legislation/Maldives/MV_Consumer_Protection_Act.pdf
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Judicial Delays and Time Limit for Arguments – Supreme Court.
By Lucy Rana and Shilpi Sharan
In a recent case, Ajit Mohan & Ors. v. Legislative Assembly National Capital Territory & ors.[1] the Three Judge Bench of the Hon’ble Supreme Court of India in the Postscript of the Judgment has made some intriguing and riveting observations while drawing a context between judicial delays, pendency of cases and restriction of time period for oral submissions by Counsels. The Hon’ble Bench in their 11- pointer Postscript have emphasized on how the proceedings will go on in the future i.e. post COVID period, which is likely to see a surge in the number of cases pending adjudication.
It would be relevant to mention here that the Bench in the case was hearing a petition wherein social media intermediary, Facebook had been alleged of fuelling violence between in February, 2020 with communal riots in different parts of North-East Delhi. The hearing in the case went on for 26 long hours.
While deliberating on the Postscript, the Apex Court clarified that the same was only to start a discussion among the legal fraternity and to notice the importance of succinctly framed written synopsis in advance, and the same being adhered to and to make judgments more crisp, clear and precise so that the common man can understand what is the law being laid down.
Essential Observations made by Supreme Court in Postscript
- That counsels must have a definite and clear idea about the submissions from the very inception of arguments. These submissions must be made in a manner of brief synopsis and strictly adhered to.
- That for speedy and proper administration of justice, restriction of time period for oral submissions must be brought forth, especially in the light of a pandemic.
- That it is the litigants who are burdened by the perplexing and prolonged judicial process which can be observed by the massive number of pending disputes across the country. The Supreme Court of India as of May 01, 2021, had 67,898 pending matters[2].
- That judgments are becoming more complex and verbose only on account of a large number of precedents cited and the necessity to deal with them and not merely refer to them as is done in other countries.
- That the time spent on routine matters leaves little time to settle legal principles pending before larger Benches that may have an impact down the line on the judicial system.
- That the International practices and procedures can be followed for increasing efficiency of court proceedings. Article 6 of the European Convention on Human Rights provides for the right to a fair trial wherein it is specified that all persons are entitled to a fair and public hearing within ‘reasonable time’.[3] Completion of proceedings within a reasonable time is a crucial aspect for ensuring a productive and systematic judicial system.
The Court noted that recent judgments were long and complicated not because of the complex nature of the issues but due to a large number of precedents cites and the necessity to deal with them. With regard to the use of precedents and referring to multiple judgments to express a particular point of view, the judges referred to the case of R. v. Erskine; R. v. Williams[4] wherein a reliable principle for referring to precedents can be noticed “if it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it. That approach will be rigidly enforced.” The rule laid down the judgment is can be found in the criminal practice directions in the U.K
The legal system of the United States of America has emphasized on short and concise arguments. Rule 28 of the Supreme Court Rules states that ‘Unless the Court directs otherwise, each side is allowed a one-half hour for argument’. Moreover, any request for additional time to argue has to be presented prior to the date of the oral argument wherein the Counsel must specify why it would not be possible to present the case within the allotted half-hour time limit. Additional time is rarely accorded.
Conclusion:
Although most countries have not specified a time limit for oral arguments, the importance of such restrictions in a country such as India with a substantial number of pending cases cannot be disregarded. An analysis of the suggestions laid down by the Court is important so as to ensure that complexities of judgments do not exceed the grasp of a ‘common man’. However, the same may draw dichotomous opinions from the legal fraternity and the public at large.
[1] WRIT PETITION (C) NO.1088 OF 2020
[2] Statistics, Monthly Pending Cases, Types of matters pending in Supreme Court of India as on 01.05.2021, Supreme Court India, accessible at: https://main.sci.gov.in/statistics.
[3] Article 6, European Convention on Human Rights, 1953.
[4] [2009] EWCA Crim 1425, [2010] 1 WLR 183