Category Archives: High Court of Delhi

Delhi High Court takes up the “No Cashless Facility” Health Insurance Issue

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One might conclude that if one bought a health insurance policy, and paid a higher premium in order to avail of the “cashless facility”, the said “cashless facility” would actually be made available to one. Such a conclusion, however, apparently proved to be erroneous in a number of cases, including one involving a cancer patient.

An Individual Policy Holder who bought an insurance policy from Oriental Insurance Co. Ltd. was told that the “cashless facility” which he had paid for would not be made available to him because he had bought his policy as an Individual (as opposed to having bought his policy through a company). It wasn’t entirely clear why this should have made a difference, given that he had paid a higher premium for the “cashless facility”, and that there appeared to be no reasonable ground for differentiation between a policy-holder who was an Individual Policy Holder and one who was a Corporate Policy Holder.

As a result of this ostensible discrimination, and of not being able to avail of a service for which he had paid, the Individual Policy Holder filed a Writ Petition before the Delhi High Court which came up for hearing on July 30, 2010, before Hon’ble Mr. Justice S. Muralidhar. The Hon’ble Court issued notices to the Insurance Regulatory and Development Authority, The Oriental Insurance Co. Ltd. and Genins India Ltd. (the Third Party Administrator) — the Writ Petition was maintainable as the IRDA falls within the scope of the definition of “State” in Article 12 of the Constitution, as does the insurance company which is a PSU.

School Punishment Kills Student

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It has been reported that a girl in Delhi died after being punished in the municipal school she attended. Her name was Shanno, and she was eleven years old. Apparently, her teacher made her sit in a position imitating a chicken for two hours in the sun and piled bricks on her back. The girl is reported to have died from a lack of oxygen although the details are not clear.

Much could be said about the teacher’s lack of all good sense and humanity but words would probably do a poor job of describing it. To treat a child in such a manner especially considering that temperatures in Delhi are well over 40 degrees centigrade would require extraordinary cruelty.

The media, in its coverage, seems to have focussed on the dearth of laws to protect a child in such a situation and has spoken of the Delhi High Court and the NCPCC taking a stand against corporal
punishment in schools.

It isn’t entirely clear why that should be especially relevant in a case such as this. The Indian Penal Code doesn’t have any shortage of provisions to deal with harming other persons be they children or
adults: causing hurt, causing grievous hurt, assault, murder and culpable homicide, among others.

And while it is certainly not a bad idea to have some sui generis legislation in place banning the corporal punishment of children both within and outside schools, it is entirely ridiculous to imply that
the absence of such legislation in any way bars awarding punishment to those guilty of assaulting a child.

Even leaving criminal law aside, erring teachers and institutions could always be sued under tort law. The principle of vicarious liability, among other things, would ensure that schools which had such teachers could also be pursued through legal channels.

True, children are often assaulted by school teachers. True, there exists no law which specifically deals with banning corporal punishment. It does not, however, automatically follow that there are no remedies available to children and their parents when teachers act in such an unconscionable manner and assault their students.

Public Displays of Affection

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There’ve been a number of instances of late in urban areas about morality and the law. One which was widely discussed was the Mangalore incident where persons with political affiliations seem to have assaulted women who were drinking in a pub. Apparently, they were acting as the moral police although it isn’t clear why drinking was considered immoral or how they could possibly be policing anything or anyone since drinking per se is not ordinarily illegal.

Nonetheless, there were people who spoke of vigilantes taking (non-existent) law(s) into their own hands. The story was covered by every newspaper, TV channel and almost every blog. And everyone against women drinking spoke long and loud about its being against Indian Culture.

Soon after, there was another report of a PDA which came from Delhi. This one didn’t have anything to do with alcohol but spoke of policemen having charged a young, married couple with obscenity for kissing each other under a metro pillar in Dwarka, Delhi. The couple said that they weren’t kissing each other – they were taking pictures of themselves with a cell phone – and that the policemen (and their lawyer) were trying to extort money from them. Ultimately, they approached the Delhi High Court to have the FIR filed against them quashed. Among other things, they said that while they were being interrogated, the husband’s ATM card was used to unburden him of 20,000 INR.

The High Court while saying that the FIR was difficult to believe since there were no passers-by or witnesses whose statements were attached to it. Indian law does not define obscenity: it is left entirely to the judiciary to interpret what is and is not obscene.  The couple had been accused of having violated sections 294 and 34 of the Indian Penal Code. Under section 294, whoever, to the annoyance of others does any obscene act in any public place, or sings, recites or utters any obscene song, ballad or words, in or near any public place is to be punished with either simple or rigorous imprisonment for a term which may extend to three months, or with fine, or with both. Section 34, however, deals with acts done by several persons in furtherance of a common intention. Under the Section, when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

One problem with accusing the couple with obscenity was the lack of witnesses: the law requires the obscene act to annoy others. If it’s an act which no one has seen, it does not fall within the parameters of the Section 294 of Indian Penal Code.

The Court also said that even if the couple were in fact kissing, there could be nothing wrong in their doing so, and it expressed surprise that the police chose to ignore the fact that the couple were married. Justice Muralidhar said: “The FIR doesn’t make a case for offence under Section 294 (obscenity) read with 34 IPC. It is inconceivable how, even if one were to take what is stated in the FIR to be true, an expression of love by a young married couple would attract the offence of obscenity and trigger the coercive process of law.”

While it’s certainly something that the High Court did in fact step in to protect the couple, what was striking was the emphasis on the couple being married. Does that mean that if the couple was not married, their having done exactly the same thing would have been considered obscene?

Reference: Times of India, February 3, 2009

Shipyard Slavery?

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Reportedly, Signal International, a marine fabrication company, apparently recruited about 590 Indian workers though a Mumbai-based Dewan Consultants Pvt. Ltd..

About one hundred and twenty of these workers who went to the US later alleged that they had been treated inhumanly at work and walked out with the support of local activists. They also made allegations of human trafficking against the Dewan Consultants.

In India, the government filed a case of cheating against the recruitment agency and suspended the registration certificate issued to it under the Immigration Act, 1983, allegedly without verifying facts. Justice Rekha Sharma of the Delhi High Court then directed the government to dispose of the inquiry pending against the recruiters within one month pointing out that ‘The registration certificate of the petitioner is under suspension since March 10, 2008 and on account thereof, petitioner is unable to operate as a recruiting agent.’ (This certificate is required for it to recruit workers for employment overseas.)

In the US, the Indian shipyard workers initiated proceedings in the District Court of Louisiana in March. Around the same time, the US Department of Justice also launched an investigation into matter.

The Case of the Overweight Air Hostesses

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Four air hostesses, Sheela Joshi, Shivani Mathur, Anne Patricia Dyook and Kiran Chaudhary filed writ petitions against Indian Airlines Ltd. which had grounded them for being overweight and told them that they would be treated on leave if there is any to their credit or otherwise on ‘leave without pay’ till they reduced their body weight so that it was within limits prescribed by the airline.

The airhostesses said that this order was unreasonable, unfair, without sanction of law and contrary to the Indian Airlines Employees Service Regulations. They also viewed it as an affront to their dignity, honour and womanhood.

The airline didn’t agree.

The appointment letters of the airhostesses inter alia said:

8. While undergoing Training in the Indian Airlines and the appointment as Air-Hostesses, you will be governed by the Indian Airlines Service Regulations applicable to the Flying Crew and Standing Orders concerning discipline and appeals as framed/ amended by Indian Airlines from time to time.
9. During the training period and on appointment as Air Hostesses, your services are liable to be terminated under the following circumstances
I) in the event of your getting married before the specified period
II) If you (a) fail to maintain vision without Glasses
(b) do not maintain weight within the prescribed limits
(c) develop air sickness.

On May 31, 2007, Justice Rekha Sharma of the High Court of Delhi held that they had no case. She said that their appointment letters were their nemesis; they agreed to the terms contained in them.

She also observed, “[I]t is not without rationale that the flying Crew has been subjected to certain standards of height and weight. Their job profile demands it. The aircrafts fly at a very high altitude. Quite often emergency situations arise because of air turbulence or on account of aircraft developing snag. The Cabin Crew including the Air Hostess are expected to handle the situation deftly, with alacrity and presence of mind. All this will be possible only if the Cabin Crew possesses the highest order of physical and mental fitness. And let us not forget that in this era of cut throat competition no Airlines can afford to remain lax in any department whatsoever, be it the personality of its crew members, their physical fitness in all respects or the air worthiness of the air craft or in relation to other facilities such as catering etc. If keeping in view this kind of job performance the Air Hostesses are asked to battle their bulge, control their girth and keep at desired level the affluence of their body weight as per the norms, it is not understood how it is in any way unfair, unreasonable and insulting to their womanhood. It is not the Air Hostesses alone which are put to these rigours. The other Members of the flying crew are also required to maintain a particular weight standard. If by perseverance the snails could reach the ark, why can’t these worthy ladies stand on and turn the scale.”

In 2008, a Division Bench of the High Court of Delhi comprising Justices A.K. Sikri and J.R. Midha affirmed her decision.

Yo! China v. Nestle on the Use of ‘Yo’ Trademark

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The Delhi High Court granted a temporary injunction to Moods Hospitality which owns the ‘Yo! China’ chain of restaurants.

The injunction restrains Nestle India from using the word ‘Yo’ in relation to its ‘Maggi Cuppa Mania’ instant noodles ‘Masala Yo!’ and ‘Chilly Chow Yo!’.

Barely a week later, this order was stayed by a division Bench of the Delhi High Court comprising Justices Siddharth Mridul and Manmohan.

‘Yo! China’ inter alia sells cooked noodles under the name ‘Yo! Box’ and it says that Nestle’s product is in direct competition to its brand.

The MMS Scandal and the Law

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In a case involving an MMS showing two schoolchildren engaged in an intimate act being uploaded on to a website, Justice Muralidhar of the Delhi High Court pointed out that ‘since the IPC does not recognise the concept of an automatic criminal liability attaching to the Director where the company is an accused not even a prima facie case for offence under sections 292 and 294 is made out [against Mr Bajaj, the MD of the company at the time].’

Justice S Muralidhar went on to drop charges under the Indian Penal Code against Avinash Bajaj, the former Manging Director of Bazee.com (now Ebay India Pvt. Ltd.). Mr Bajaj had been charged with offences under IPC as well as with offences under the Information and Technology Act.

Pornography is easily available in India (just as it is in the rest of the world). In fact, any discussion about the availability of pornography is ludicrous in the Age of Online Porn. And, whether or not one wants to admit it, it is closely linked to prostitution and to trafficking: ‘today, the hunt for cheap, easy prey has been made significantly easier because the prowlers know exactly where to click’.

There are provisions in the Penal Code, the Information Technology Act and the Indecent Representation of Women Act to deal with porn and other forms of indecent representation though.

The Indian Penal Code says:

    Any book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, is deemed to be obscene under Section 292 of the Indian Penal Code ‘if it is lascivious or appeals to the prurient interest or if its effect (or where it comprises two or more distinct items, the effect of any one of its items) is, if taken as a whole, such as to tend to deprave and corrupt persons, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

    Under Section 292 (2), whoever

  1. sells, lets to hire, distributes, publicly exhibits or in any manner, puts into circulation or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever or
  2. imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation or
  3. takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation or
  4. advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this Section or that any such obscene object can be procured from or through any person or
  5. offers or attempts to do any act which is an offence under this Section, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees.

    This Section does not extend to:

  • any book, pamphlet, paper, writing, drawing, painting, representation or figure
    1. the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern or
    2. which is kept or used bonafide for religious purposes
  • any representation sculptured, engraved, painted or otherwise represented on or in
    1. any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or
    2. any temple or on any car used for the conveyance of idols or kept or used for any religious purpose.

    And under Section 293 which deals with the punishment of an act listed in Section 292, ‘whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding Section or offers or attempts so to do, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees.’

The Indian Penal Code does not define obscenity itself. In Ranjit D Udeshi v/s State of Maharashtra, 1965,2 the Supreme Court, however, accepted the test formulated over a century ago in R v/s Hicklin, the case under which a bookseller was prosecuted for keeping and selling the supposedly obscene Lady Chatterley’s Lover. Despite the furore which the book created when it was first published, by itself, it simply cannot be considered obscene by contemporary standard and as such, the test in R v/s Hicklin, which quite simply fails either to recognise or to make provision for this change in the perception of obscenity, should not have been accepted.

Parliament passed the Indecent Representation of Women (Prohibition) Act in 1986. It extends to the whole of India except the State of Jammu and Kashmir and is meant to ‘prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures’.

‘Indecent representation of women’ means the depiction in any manner of the figure of a woman; her form or body or any part thereof in such way as to have the effect of being indecent or derogatory to or denigrating women or as is likely to deprave, corrupt or injure public morality or morals. 3

Further, there is a provision in the Information Technology Act, 2000 which deals with the publishing of information which is obscene in electronic form.

The Information Technology Act was passed by Parliament in 2000 primarily to provide legal recognition to eCommerce and is based on UNCITRAL’s Model Law for Electronic Commerce which the UN General Assembly adopted on January 30, 1997. Section 67 of the Act says:

Whoever publishes or transmits or causes to be published in electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and with fine which may extend to two lakh rupees.

Apart from online porn, recently, a large number of men have been morphing photos of women who either dump them or simply reject their advances and posting them on the Net. There doesn’t seem to be very much that can be done about it – once the photos are on the Net, the damage has usually already been done as far as the woman involved is concerned.

Moving away from relationships which have gone sour (assuming they existed in the first place) though, another form of indecent representation which has been much talked about is that which is on TV. Apart from a large number of PILs being filed against various actresses for wearing supposedly indecent clothes in performances, in January 2007, the Government temporarily banned the AXN Channel for showing supposedly indecent content.

While the judiciary has been trying to curtail instances of frivolous public interest litigation being filed by persons suffering from bouts of self-righteousness, the Government has increasingly been making forays into realm of morality although, as Jug Suraiya4 pointed out, “A perverse politics of pornography seems to prevail. A State apparatus which cannot grant its citizens the most basic of life enhancing requirements – primary healthcare, education, gainful employment, safety from violence – shows compensatory zeal in protecting its people from the ill-effects of moral pollutants in their most ingenious of Avatars… even as the regular police turns a blind eye, or worse and acts as an accomplice to rape, murder torture and other obscenities of violence.”

In Bobby Art International v/s Om Pal Singh Hoon, 1996,5 the Supreme Court did not quash the certificate of exhibition of a film which told the story of a tribal girl – Phoolan Devi – whose being exposed to various forms of brutality shown in the film (including gang-rape) turned her into a dreaded dacoit known as the ‘Bandit Queen’. The Court held that the film had to be judged in its entirety and that nakedness did not always arouse a baser instinct.

References:
1. Malarek, Victor; The Natashas; Arcade Publishing; 2003
2. AIR 1965 SC 881
3. Section 2; Indecent Representation of Women (Prohibition) Act, 1986
4. Suraiya, Jug; Risque and Porn: Can I& B tell the difference?; The Times of India; 21.1.2007
5. (1996) 4 SCC 1
6. Indian Women: A Socio Legal Perspective; Saikia, N