Author: kkslawoffices

Having Blazed a Trail of Brilliance , Justice Rohinton Fali Nariman Retires

It was in the long tradition of retiring judges when Justice Rohinton Fali Nariman sat with the Chief Justice of India (CJI) NV Ramana in Court No. 1. It was a day with mix feelings amongst different stakeholders. Though even before being picked up for direct elevation from the bar to be on the bench of the highest court in the land, Justice Rohinton Fali Nariman was known to be extremely meticulous lawyer but the high standards set by him when he was on the bench will be remembered for a long time to come.

The usual goers to the Supreme Court would recall that it is not every day that you find a judge who is having patient ears for any good cause of justice, to put an old saying in the context of a practising lawyer, even if he was being addressed by a lamp post. Long known to be a bastion of ‘face value’ of the Lawyer arguing the matter, the span of attention of the Judges on the bench can make or mar a case in Supreme Court. Against the backdrop where face of the advocate arguing the matter and the past linkages/associations were not an insignificant attribute in getting a favourable judgment, here was a judge who was at pains to understand the cause of justice instead of looking at the face in front of him. Conversely, in the instances, when there was no merit in the matter, he would be equally disdainful and give enough hints of not being in a position to enjoy the convoluted stretching of arguments by those advocates whose only claim to stretch the arguments , in cases without merit, used to be their face.

The new young lawyers found it extremely encouraging when Justice Rohinton Fali Nariman would take great interest in whatever they were saying if the cases being dealt with had merit. In a period of 7 years which, by his own admission, he found ‘gruelling’ as he had to wade through ‘piles of briefs’, he did mention that it was a difficult 7 years. The good part was that he qualified it by the end remark saying that ‘I have enjoyed writing judgements though’. All his past laurels, including having been designated as the senior lawyer at the youngest age of 37 years, coming from a very renowned pedigree being the son of Fali Nariman , an Alumni of Howard University, having been in ordained Parsi Priest at a very young age, Justice Nariman dealt with 13565 cases in his tenure of 7 years.

The path breaking judgements of striking down section 66A of the Information Technology Act, striking down the criminality from section 377 of Indian Penal Code, eradicating the socially crippling practice of Triple Talak, all bear the trade mark pen of Justice Rohinton Fali Nariman. While Chief Justice of India, NV Ramana described Justice Rohinton Fali Nariman as a ‘lion of a judge’, others were sad at the departure of a judge who always spoke his mind and was known for his erudition , clarity, scholarly work and elephantine memory through which he could recite scriptures, judgements and citations with equal ease.

Having been the Solicitor General of India a few years before being elevated to the Bench, perhaps, the life had come full circle for Justice Nariman having been on both sides in equal measures. However, the parting remarks of Justice Nariman and his style , of disregarding the face and focussing on the substance, should act as a guide for the future league of judges, if they also want to be remembered the way Justice Rohinton Nariman would be remembered by posterity. Similarly, he desired, in his parting remarks, that merit should be the sole criterion above all others in selection of judges as well. Whether his remarks have been listened to or shall be put into practice is a moot point but he has raised extremely important questions.

Now coming to the remark of his 7 years being the most gruelling assignment, it may be recalled that for any sincere and well meaning person any job, including that of a Judge, is no less demanding and gruelling, if the holder of the office decides to do what is expected of him to do. The aberration in performance and outcomes are the result of the fact that people who are appointed to such high offices lose sight of why they are there in the first place and start looking at other things which were supposed to be incidental and not the main factor of them being there. This having been said, it is very obvious that the people indulging in these kinds of things do then out of their own compulsions.

However, if his message of preference of merit on all other things as well as the fact that if any job allotted is executed sincerely by the holder of the office, it is bound to be ‘gruelling’, are followed in practice, it may be a satisfying but difficult journey as has been told by Justice Nariman. After the function, on the Supreme Court lawns, yesterday i.e. Friday on 13.08.2021, Justice Nariman would not be a part of a Bench but we hope to keep on hearing the wise counsel of Justice Nariman in future from different fora.

Cabinet approves rightsizing the Competition Commission of India

The Union Cabinet chaired by Prime Minister ShriNarendraModi has given its approval for rightsizing the Competition Commission of India (CCI) from One Chairperson and Six Members (totalling seven) to One Chairperson and Three Members (totalling four) by not filling the existing vacancies of two Members and one more additional vacancy, which is expected in September, 2018 when one of the present incumbents will complete his term.

The Criminal Law (Amendment) Ordinance, 2018

The Criminal Law (Amendment) Ordinance, 2018 was promulgated on April 21, 2018. It amends certain laws related to rape of minors. The amendments includes amendments to Indian Penal Code (IPC), 1860, enhanced punishment for rape where the minimum imprisonment has been increased from seven years to ten years and certain new offences have been introduced – three new offences relate to rape of minors, and increases the penalty for one.

The amendment also includes changes in Amendments to Protection of Children from Sexual Offences Act (POCSO), 2012. For rape of minors below the age of 12 years or for gang rape of minors, the punishment which is higher between the POCSO, 2012 and IPC, 1860, will apply. Amendments to Code of Criminal Procedure (CrPC), 1973 includes introduction of investigation in rape cases within 3 months, disposal of appeal within 6 months, non-applicability of anticipatory bail to rape and gang rape of minor girls below 12 years of age and below 16 years of age, free medical treatment and compensation by state government etc.

COMPETITION COMMISSION OF INDIA VS. THOMAS COOK (INDIA) LTD. & ANR. [CIVIL APPEAL NO.13578 OF 2015]

The Hon’ble Supreme Court, while holding that unless the language of the statute indicates the need to establish the presence of mensrea, it is wholly unnecessary to ascertain whether such a violation was intentional or not, restored the penalty of Rs. 1 crore imposed by the Competition Commission of India on Thomas Cook India Ltd, Thomas Cook Insurance Services India Limited and Sterling Holiday and Resorts India Limited.

The Court held that the order of the Tribunal setting aside the order passed by the Competition Commission under section 43A of the Competition Act, 2002 cannot be said to be legally sustainable. The penalty of Rupees One Crore was imposed on the respondents on the ground of noncompliance of provisions contained in section 6(2) of the Act.

Calling the penalty of Rs. 1 crore as a nominal penalty, the Apex Court was of the opinion that there was no ground to interfere with the same. The breach of the provision is punishable and considering the nature of the breach, it is open to impose the penalty. The imposition of penalty under section 43A is on account of breach of a civil obligation, and the proceedings are neither criminal nor quasicriminal. Only discretion in the provision under section 43A is with respect to quantum of penalty.

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CCI for the first time issues final order under Lesser Penalty Provisions

The Competition Commission of India (‘CCI’), in a suomoto case invoked the provisions of Section 46 of the Competition Act, 2002 (‘the Act’) read with the Competition Commission of India (Lesser Penalty) Regulations, 2009 (‘Lesser Penalty Regulations’) to reduce the penalty imposed upon Panasonic Energy India Co. Ltd. (‘Panasonic’), Eveready Industries India Ltd. (‘Eveready’) and Indo National Ltd. (‘Nippo’) by 100 percent, 30 percent and 20 percent respectively, while passing final order imposing penalty on the three leading Indian zinc-carbon dry cell battery manufacturers for colluding to fix prices of zinc-carbon dry cell battery in India under relevant provisions of Section 3(3)(a), 3(3)(b) and 3(3)(c) read with Section 3(1) of the Act. Considering contravention of provisions of the Act, an amount of INR 245.07 Crores, INR 52.82 Crores and INR 74.68 Crores was computed as leviable penalty on three battery manufacturers.

FUGITIVE ECONOMIC OFFENDERS ORDINANCE, 2018

The President promulgated the Fugitive Economic Offenders Ordinance, 2018, to provide for measures to deter fugitive economic offenders from evading the process of law in India by staying outside the jurisdiction of Indian court. It seeks to confiscate properties of economic offenders who have left the country to avoid facing criminal prosecution. A fugitive economic offender has been defined as a person against whom an arrest warrant has been issued for committing an offence listed in the schedule, and the value of the offence is at least Rs 100 crore.

Further the person has:

  1. Left the country to avoid facing prosecution, or
  2. Refuses to return to face prosecution.Some of the offences listed in the schedule are:
    1. Counterfeiting government stamps or currency,
    2. Cheque dishonour,
    3. Money laundering, and
    4. Transactions defrauding creditors.

A director or deputy director (appointed under the Prevention of Money Laundering Act, 2002) may file an application before a special court (designated under the 2002 Act) to declare a person as a fugitive economic offender. After hearing the application, the special court may declare an individual as a fugitive economic offender and confiscate properties that are proceeds of crime or any other property in India or abroad. Upon confiscation, all rights and titles of the property will vest in the central government, free from all encumbrances. The Ordinance allows any civil court or tribunal to disallow a person, who has been declared a fugitive economic offender, from filing or defending any civil claim.