Category Archives: Litigation

Absurd Reason for Rape Acquittal

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If there ever was a crazy reason to let a man get away with rape, it’d have to be this reasoning behind the judgement of the Orissa High Court: “Law is well settled that it is not possible for a single man to commit sexual intercourse with a healthy adult female in full possession of her senses against her will.”

At first glance, the reasoning is just about as ‘sound’ as it was in the “Jeans are difficult for another to remove. Therefore, a woman who was wearing them could not have been raped.” case and as repugnant as Judge Archie Simonson’s “Women are sex objects whether or not they like it.” logic.

In the case in which the High Court came up with this extraordinary pronouncement, a healthy tribal woman whom the High Court deemed capable of resisting rape was raped and there was only one witness to the crime. The High Court concluded that the perpetrator had either been falsely accused or that the sex was consensual. The court based its conclusions upon the reasoning that there was no evidence of any resistance on the part of the woman.

Luckily, the Supreme Court did not agree with the it. On December 16, 2008 Justices Arijit Pasayat and Mukundam Sharma quashed the acquittal order passed by the High Court and proclaimed:

“The conclusions are not only confusing but border on absurdity.” The apex court also professed itself to be baffled as to why the HC said that the law says that it is impossible for a single man to rape a healthy woman who was in possession of her senses since, as it pointed out, “there is not even a single decision which says so.”

The Supreme Court also reprimanded the High Court judge for failing to adhere to judicial discipline by disclosing the name of the rape victim.

(The relevant case is State of Orissa v Sukru Gouda.)

PIL Regarding Netaji Subhas Chandra Bose’s Disappearance

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For years, the death of Netaji Subhas Chandra Bose has been the subject of conjecture and rumor.

The Times of India reports that a Division Bench of the Calcutta High Court comprising Chief Justice S S Nijjar and Justice P C Ghosh admitted a PIL praying that the the Mukherjee Commission be reopened. There is also apparently another writ petition challenging the Centre’s rejection of the Mukherjee Commission report which pending before the bench.

According to Government of India Notification No. S O 339 (E) dated May 14, 1999, Justice Manoj Mukherjee, a retired Supreme Court judge, was appointed to enquire into all the facts and circumstances related to the disappearance of Netaji Subhas Chandra Bose in 1945 and into subsequent developments including:

  1. Whether Netaji Subhas Chandra Bose is dead or alive?
  2. If he is dead whether he died in the plane crash, as alleged?
  3. Whether the ashes in the Japanese temple are ashes of Netaji?
  4. Whether he has died in any other manner at any other place and, if so, when and how?
  5. If he is alive, in respect of his whereabouts.

    6.  

The Commission submitted its report on November 8, 2005 in which it said:

  1. Netaji Subhas Chandra Bose is dead
  2. He did not die in the plane crash, as alleged
  3. The ashes in the Japanese temple are not of Netaji
  4. In the absence of any clinching evidence a positive answer cannot be given
  5. Answer already given above

    6.  

The Government did not agree with the findings of the Commission that Netaji Subhas Chandra Bose did not die in the plane crash and that the ashes in the Japanese Renoki temple are not the ashes of Netaji.

A Russian general had apparently sworn under oath that he had seen documentation which referred to a live Subhas Chandra Bose in Russia.

There were questions regarding the denial of access of archives in Moscow to the Commission. In response to these questions, the Minister of State in the Ministry Of External Affairs, Rao Inderjit Singh, said that the Commission, during its visit to the Russian Federation from 20 to 30 September 2005, visited seven archives.

The Minister said that despite the fact that Russia’s Archive Law, 2004, which is applicable not only to representatives of foreign countries but also Russian citizens, allows access to classified archives, without any exception, only to a strictly defined category of officials, taking into consideration the interest of the Indian side, the Russian government had competent authorities conduct a detailed study of these archives and copies of all documents found with the name of S C Bose, had been handed over to the Indian side. These, in turn, had been given to the Justice Mukherjee Commission.

There have been a number of (conspiracy) theories surrounding the disappearance of Netaji and the PIL filed appears to be yet another attempt to discover what happened to him.

The Contempt of Courts Act

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The Contempt of Courts Act was enacted in 1971. It extends to the whole of India although it does not apply to the State of Jammu and Kashmir except with reference to contempt of the Supreme Court.

The Act speaks of both civil and criminal contempt of court and of how they are to be dealt with. However, no court can impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.

The Act does not enlarge the scope of contempt of courts. And any defence which is a valid defence in any proceedings for contempt of court may be availed of as a defence in contempt proceedings notwithstanding any of the provisions of the Contempt of Courts Act, 1971.

The Chief Justice of India, K G Balakrishnan has said that the provisions of the Act aim to uphold the majesty of the judiciary and not terrorize the media.

In the judgment in the Arundhati Roy contempt case, delivered on March 6, 2002, a Bench of the Supreme Court comprising Justices G B Pattanaik and R P Sethi explained the law of contempt with reference to quite a few cases in the following terms:

“The only weapon of protecting itself from the onslaught to the institution is the long hand of contempt of court left in the armoury of judicial repository which, when needed, can reach any neck howsoever high or far away it may be. In Re: Vinay Chandra Mishra (the alleged contemner) [AIR. 1995 SC 2348], the Supreme Court reiterated the position of law relating to the powers of contempt and opined that the judiciary is not only the guardian of the rule of law and third pillar but in fact the central pillar of a democratic State. If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise the very corner-stone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. It is for this purpose that the courts are entrusted with extraordinary powers of punishing those who indulge in acts, whether inside or outside the courts, which tend to undermine the authority of law and bring it in disrepute and disrespect by scandalising it. When the court exercises this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.

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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.

IT Auction Sales Sacrosant

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In an appeal filed by Janatha Textiles, a partnership firm of Radhey Shyam Modi, Pawan Kumar Modi, Padmadevi Modi and Indira Chirmar, a firm that had been in tax arrears, the Supreme Court not only said that the IT department could attach the property of defaulters to recover the debt but also that if it sold the property, the sales were sacrosanct.

A Bench of the Supreme Court comprising Justices Ashok Bhan and Dalveer Bhandari held that auction sales by the Income Tax Department could not be interfered with unless there were grave irregularities in the process of sale. It said that it was necessary to extend such protection to such sales to ensure that auctioned property fetched the market value or fair price of the property.

Auctions are usually governed by Sections 64 and 20 of the Sales of Goods Act, and relevant case law. There are also provisions in the Port Trust Act and the Code of Civil Procedure which deal with certain kinds of auctions although the provisions in these two statues are not universally applicable.

In addition to statutory provisions, the terms of the auction concerned also play a role of vital importance. Auctions are merely a kind of sale, and the terms of the auction are a reflection of the intention or to parties. Although goods are usually sold by an auctioneer on behalf of the owner, there is nothing to stop a person from selling his own goods in an auction.

An auction is not in itself an offer, it is merely an invitation to treat. In other words, each bid made at an auction is an offer and it is open to the auctioneer to accept or reject that offer provided that he acts in accordance with the terms of the auction. The general principle of the auction is, however, that every higher bid supersedes the previous bid.

The concept of an auction Section 64 of the Sale of Goods Act is a guiding factor on the principles of an auction. It says:

In the case of sale by auction–

(1) where goods are put up for sale in lots, each lot is prima facie deemed to be the subject of a separate contract of sale;

(2) the sale is complete when the auctioneer announces its completion by the fall of the hammer or in other customary manner; and, until such announcement is made, any bidder may retract his bid;

(3) a right to bid may be reserved expressly by or on behalf of the seller and, where such right is expressly so reserved, but not otherwise, the seller or any one person on his behalf may, subject to the provisions hereinafter contained, bid at the auction;

(4) where the sale is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller or any such person; and any sale contravening this rule may be treated as fraudulent by the buyer;

(5) the sale may be notified to be subject to a reserved or upset price;

(6) if the seller makes use of pretended bidding to raise the price, the sale is voidable at the option of the buyer.

The section similar to Section 58 of the English Act, and can therefore be construed in similar terms. It is however important to bear in mind that the statutory provisions contained in Section 64 may be subject to a contract to the contrary. This effectively means that it would be the terms of the auction concerned which would prevail.

Reference materials and relevant cases:

  1. Pollock and Mulla, The Sale of Goods Act 
  2. (1869) LR 9 Eq 60
  3. [1895] All. E.R (Rep) 829
  4. [1907] 2 K.B. 1
  5. AIR 1961 Cal 54
  6. AIR 1961 MP 274
  7. [1963] Suppl. 2 S.C.R. 608
  8. Ouchterloney Valley Estates Ltd. v. State of Kerala (23.10.1964 – SC)
  9. AIR 1980 SC 1468
  10. AIR 1989 All 64
  11. AIR 1992 MP 250
  12. 2005(190)ELT161(Cal) 

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.