The General Data Protection Regulation, “the toughest privacy and security law in the world, was drafted and passed by the Europe Union and was put into effect on May 25, 2018.” “GDPR obligates and organizations all over the world if they are targeting or collecting data related to people in EU. If someone violates its privacy and security, the GDPR will charge them heavy fines and it can be up to tens of millions of Euros.” 

Ways in which GDPR will impact Law firms and Lawyers 

• Permission Marketing- In case of permission marketing consent will play a major role. You will need to have consent before adding anyone to your database or email list. There must be a positive opt-in – “consent cannot be inferred from silence, pre-ticked boxes or inactivity.” 

• Newsletter and Email Marketing- Personal data in GDPR consists of an individual’s email address, phone numbers, etc. Clients will need to make a clear choice to be regularly contacted with email or any other source, law firms cannot put anyone monthly mailing list. The GDPR also clarifies that pre-ticked opt boxes cannot be considered as one’s consent. The burden will be on law firms or lawyers to prove that they have opted mailing or newsletter option.
• Marketing Automation- As we all know, marketing automation is called the second brain of your business. Law firms and Lawyers need to be more careful as if any kind of email has been sent to any customer or client who has not opted or has subscribed for the same, GDPR can charge a heavy fine. 

• Access to Data- Under GDPR guidelines, now the customers and clients will have the right to know all the processing and purpose of where the data is being used. It becomes mandatory for the law firms and lawyers to provide copy of all the information if requested and that too is free of charge. GDPR will strengthen individual’s rights that already lie under DPA. Now, law firms also need to ensure that they provide individual rights including the right to be forgotten, the right of data portability and right to access data. 

• Focused Data- The legal marketers and law firms or lawyers will now require to justify the personal data they have been collecting for ex., birthday date or phone number and every detail they are collecting in order to complete the transaction or login procedure. Most of the legal marketers ask for where the client works, who they work with, interests so that they can raise their pitch and maximize the opportunities for promotions.

GDPR can be tough on lawyers and law firms but one thing one can do is to minimize the personal data collection and provide them the offer to opt-in the subjects they want to receive updates on. As rightly said, giving choice always wins and a right management can help here. 

• Notification of Breach and other Security measures- If a law firm’s records are breached then the organization needs to inform or notify the clients impacted if the data is of a personal nature. 

As said in the guidelines of GDPR- “Data breaches which may pose a risk to individuals must be notified to the DPA within 72 hours and to affected individuals without undue delay.” 

The law firms and lawyers therefore need to implement the special measures and procedures in order to ensure the safety of personal data of clients and meet all the requirements of GDPR. In coming days, GDPR will make law firms and lawyers with website to launch their own data security policies. In today’s business era, breaches are a fact of a life and therefore all the organizations need to boost their cyber security system from both GDPR and a risk management standpoint. 

In India, The Data Protection Bill, 2019 has been introduced in the Parliament. The Bill regulates and obligates organizations in India and foreign companies that are dealing with the personal data of citizens of India. 

According to the Bill, Personal data is data which pertains to characteristics, traits or attributes of identity, which can be used to identify an individual.  The Bill categorises certain personal data as sensitive personal data.  This includes financial data, biometric data, caste, religious or political beliefs, or any other category of data specified by the government, in consultation with the Authority and the concerned sectoral regulator. 

Under PDP Bill, even though the data can be transferred outside but appropriate safeguards need to be laid down by law firms and other organizations. The Bill also provides the launch of Data Protection Authority which shall work as a cross sector regulatory and shall be responsible for implementation of PDP Bill.  The penalties for convention of provisions in case of PDP Bill might reach up to INR 50 million to INR 150 million and can also have criminal penalties like imprisonment up to 3 years or fine up to INR 200,000. 

Conclusion

It’s safe to say that now with the GDPR and revised design of Indian PDP Bill 2019 can enable more specific framework and that the data protection is no longer the responsibility of IT. It has now become very important to have a pragmatic approach towards data protection in order to ensure one’s privacy even at societal end. These reforms will strengthen the states. Hence, the protection of personal data should now be embedded in one’s law firm processes. 

REFERENCES- 

1. http://www.eugdpr.org/gdpr-faqs.html 
2. https://www.privacysecurityacademy.com/wp-content/uploads/2020/05/Comparison-Chart-GDPR-vs.-India-PDPB-2019-Jan.-16-2020.pdf 
3. https://ec.europa.eu/info/law/law-topic/data-protection_en 
4. https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/ 

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WHY DO CHANNELS CHASE TRPs?

TRP is a big deal for television channels as it is a key factor in deciding their revenue. The higher a channels’ TRP, the more advertisement it will get, subsequently increasing their revenue scale. The increase or decrease in TRP of any program directly affects the income of the TV channel on which the program is coming. TRP rate of any channel or program depends upon the program that is displayed. It can be understood that when a film star arrives in a program for the promotion of his movie, the TRP of that program increases automatically because people like to see that film star more. It’s all about money – a show with higher TRPs has a bigger audience, so advertisers are willing to pay more to advertise on it. 

HOW TRPs ARE MEASURED?  

Broadcast Audience Research Council (BARC) formed in 2014, is the world’s largest television audience measurement service. After its joint venture with TAM, it is now the only rating body for the broadcasting sector in the country. BARC installs a device called “people meter” at households participating in its survey. The “people meter” (BAR-O-meters) tracks the shows being watched by listening for watermarks embedded in their audio. The BARC remote has buttons assigned to each member of the household. This keeps a track of who is watching a show. 45,000 households spread across the county are surveyed by BARC to estimate the viewing habits of about 20 crore TV households or roughly 84 crore viewers. Every Thursday, BARC releases data comparing the viewership of different channels and programs, broken down by audience demographics – age, education, income, etc. The number of viewers a show has and the time spent watching it from the basis for all TV channels buying and selling in the country and the advertising revenue every channel gets.

WHAT IS TRP SCAM? 

Television Rating Points (TRPs) have been a much debated issue in India since the present system of TRPs is riddled with several maladies such as small sample size which is not representative, lack of transparency, lack of reliability and credibility of data etc. Shortcomings in the present rating system have been highlighted by key stakeholders that include individuals, consumer groups, government, broadcasters, advertisers, and advertising agencies etc. 

In India, around 45,000 meters known as people meter are attached to TV sets. These give data on viewership patterns and behavior. The Modus Operandi is like this- The homes where meters are installed are supposed to be secret but bribes are given to staffers to identify the homes where meters are installed. So TV channels as well as private serial program producers approach these homes and bribe them to switch on the channels or programs. It is a known secret that these homes will be given another TV set by these bribe givers to watch programs as they wish with a condition that they have to always switch on the TV  and technically view the bribed channels or programs where the meter is attached. So in effect, these homes get another TV free also apart from the monthly bribes to switch on the meter attached TV set. These viewers are also bribed with the shopping coupons and many other gifts. 

Recently, Mumbai Police registered a case on the TRP scam the well-kept secret of Indian TV channels in manipulating the viewership data is now out in the public domain added with the mudslinging of TV Channels and anchors each other. Mumbai Police Commissioner said in an interview – Arnab Goswami’s Republic TV Channel is only the tip of the iceberg in the Indian TV Channel industry amounting to Rs.70, 000 crores advertisement spending annually. In many homes the people were bribed with Rs. 400-500 a month to keep specific channels switched on even if they did not watch it. The manipulation became clear when it emerged that non-English speaking poor households were watching English news channels. Hansa Research Group Private Limited has named India Today, Marathi channels and other channels for ‘increasing ratings’. Hansa Research Group Private Limited is the company responsible for installing Bar-O-meter. 

On this, Union minister for information and broadcasting Prakash Javadekar said the present system of Television Rating Point or TRP-oriented programs “needs a rethink” where some other politicians said that they do not wish to get into TRP game.

HOW TO STOP THIS FRAUD?

• Dish TV companies like Tata Sky and Airtel can take responsibility of data of viewership directly from their central control room & the government should authorize these companies to collect data through legislation.
• The government should take action against fake people meter connected to a few TV sets. 
• I & B ministry and TRAI must sit together to evolve a new scientific system to stop TRP scam.
• News provoking news for TRP should be stop (fake journalism). 
• There should be more agencies in this field to ensure curbing of monopoly by BARC.

CONCLUSION

If you go back to the pre-TV era, at least in Hindi, Manohar Kahaaniyaan and Nutan Kahaaniyaan would always have more readership than weeklies like Saptahik Hindustan. They would always be considered separate from news. We now have a peculiar situation in which news channels in their hunger of TRP rates are competing with TV serials by dramatizing news, focusing on crime and scandals and showing pulp content.  There used to be paid news and fake news and now TRP is journalism. It is an open secret that malpractices and bribing exist in the field to get good TRPs. TRP ratings of certain programs and certain channels gave the impression that some sort of hyping was happening in the ratings. In the industry, there are always allegations that companies producing Mega-serials will go to any extent to get good TRPs and use clever ways to hype up the TRP numbers.  Given the above circumstances, the Government and TRAI must intervene to rectify the tweaked “Policy Guidelines for Television Rating Agencies in India”. The Policy Guidelines envisages all sorts of regulations to streamline the TV rating business in India by ensuring independence to the rating agencies for TV programs.  It is high time the Government rectified the manipulated policy guidelines and stops this organized loot and manipulation by the TV channel giants who are fooling people by giving false Television Ratings to their own members and ensure that a professional independent television rating agency is created in India.

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Court Name-Supreme Court of India

Date of Judgment-2 January, 2017

Citation-Civil Appeal No. 37 of 1992; Civil Appeal No. 8339 of 1995

Bench Name-Hon’ble Chief Justice Mr. T. S. Thakur, Hon’ble Justice Mr. Adarsh Kumar Goel, Hon’ble Justice Uday Umesh Lalit, Hon’ble Justice Mr. Madan B. Lokur, Hon’ble Justice Mr. Nageswara Rao, Hon’ble Justice Mr. S.A. Bobde, Hon’ble Justice Dr. D.Y. Chandrachud

Summary of Facts- This case was interpretation of Section 123(3) of Representation of the People Act, 1951.Abhiram Singh, a BJP up and comer challenging from Santa Cruz electorate in Mumbai in 1990, was blamed for having enjoyed degenerate practices by speaking to the voters on the ground of religion. The issue came up under the watchful eye of the Supreme Court which at that point needed to discover the extent of Section 123 of the Representation of the People Act, 1951. Abhiram Singh was chosen for the No. 40 of Santa Cruz Legislative Assembly Constituency 1990 for the Maharashtra State Assembly and his political decision was tested by Commachen in the Bombay High Court.

A bench of three judges on April 16, 1992, communicated the view the substance, scope and what comprises a degenerate practice (corrupt) under sub-section (3) or (3A) of Representation of the People Act, 1951should be set obviously to maintain strategic distance from a premature delivery of equity in deciphering “degenerate practices”

In Narayan Singh v. Sunderlal Patwa¹, the appointment of Sunderlal Patwa from the Bhojpur Constituency no. 245 in the Madhya Pradesh to the Legislative Assembly of 1993, was under test of the ground of degenerate practice, in that the returned up and comer had purportedly made an orderly intrigue (appeal) on the ground of religion infringing upon Section 123(3) of the Representation of the People Act. In the view of certain observations, while the five judge bench was hearing the case of Abhiram Singh case on January 30, it was learned that an indistinguishable issue was brought up in the political race appeal recorded by one Narayan Singh against BJP pioneer Sunderlal Patwa and another Constitution Bench of five judges of the Apex Court has alluded to a bigger bench of seven judges.

Thereafter Abhiram Singh was taken up for the consideration by the Constitution Bench an order was made- “since one of the questions involved in the present appeal is already referred to a larger bench of seven judges, we think it appropriate to refer this appeal to a limited extent regarding interpretation of Section 123(3) of 1951 Act to a larger bench of seven judges.”

Issues Raised-

§  Whether the words “his religion” in Section 123(3) of the Representation of the People Act, 1951, has confined the degree to just incorporate the religion of the competitor or his operator or some other individual with the assent of the applicant or have extended to incorporate the religion of the voters too.

§  Whether the Section 123(3) of Representation of the People Act, 1951, violated Article 19(1) A of the Indian Constitution which ensures the privilege to the right to speak freely of discourse and articulation, as it confines the competitor’s political discourse to some gauge.

Contentions from both the sides- There can be no doubt that the word “his” used in the sub-section (3) must have significance and it cannot be ignored with the word “any” to bring within the net of sub-section (3) any appeal in which there is any reference to religion. The religion forming basis to the appeal to vote or to refrain from voting for any person, must be of that candidate for whom the appeal to vote or refrain from voting is made. This is obvious from the plain language of sub-section (3) and this is the main way wherein the word “his” utilized in that can be interpreted or constructed. When the appeal is to vote on the ground of “his” religion for the furtherance of the prospects of the election of that candidate, that appeal is made on the basis of the religion of the candidate for whom votes are solicited.

On the other hand, when the appeal is to refrain from voting for any person on the ground of “his” religion for prejudicially affecting the election of any candidate; that is appeal based on the religion of candidate whose election is sought to be prejudicially affected. It is hence certain that for requesting votes in favor of an up and comer, the intrigue (appeal) disallowed (prohibited) is what made on the ground of religion of the other candidate for whom the votes are looked for; and when the intrigue is to avoid deciding in favor of up-and-comer, the forbiddance is against an intrigue on the ground of the religion of the other up-and-comer.

There is no ambiguity in sub-section (3) and it clearly indicates the particular religion on the basis of which an appeal to vote or refrain from voting for any person is prohibited under sub-section (3).

Judgment of the Case- Sub-section (3) of Section 123 Representation of the People Act, 1951 treats an appeal to the electorate to vote on the basis of religion, race, caste and community of the candidate or the use of religious symbols as a corrupt practice. Even a single instance of such a nature is enough to vitiate the election of the candidate.

Similarly, sub-section (3-A) of Section 123 provides that “promotion of, or attempt to promote, feelings of enmity or hatred between different classes of citizens of India on grounds of religion, race, caste, community or language” by a candidate or his agent, etc. for the furtherance of the prospects of the election of that candidate is equally a corrupt practice.

The 7 Judge Bench conveyed a milestone decision, whereby dominant part of 4:3, the lion’s share judgment conveyed by Justice Lokur with agreeing judgments by  Chief Justice T.S. Thakur and Justice Bobde.

Justice Madan B. Lokur examines the history of this provision of RoPA; its earlier drafts, the discussions in the parliament, the amendments and why such amendments were being introduced. He looks at the purpose that was trying to be achieved in Parliament by amending Section 123 and concludes that a wide interpretation serves this purpose. Less certain is his use of ‘social context’ to justify this purposive interpretation. No doubt a law must be interpreted in the social context in which it is required to be applied whether this should be mean that the meaning of law should change over years is highly debatable.

Justice SA Bobde on the other hands takes the view that even a literal interpretation of the provision in the question leads to the wide interpretation suggested. His view is that the word “his” can refer to either the voter or the candidate, and should, give the intent of the act, be given this wide meaning.

Chief Justice T.S. Thakur’s opinion (which seems to be deciding vote in the matter), is premised on the principle that appeals to religion tend to erode the secular character of the Constitution and the wider interpretation must be preferred to keep such appeals out of the picture during elections. He does not refer to caste or any other grounds in Section 123(3).

Whereas the minority judgment, authored by Justice D.Y. Chandrachud, calls for a literal interpretation of the concerned provision, holding the term “his” can only refer to the candidate’s identity or affiliation. He doesn’t entirely discard the purposive interpretation either, finding that merit of the narrow interpretation is that it enables appeals made to protect the rights of religious, linguistic and caste minorities in India. While the argument in favor of literal interpretation is quite persuasive, there are no reasons to reject it in the case.

To keep up national uprightness and harmony among the residents of the nation and to keep up the mainstream character of the pluralistic culture to which  have a place sections 123 and 123 (3A) of the Representation Act have been joined. Keeping up immaculateness in the political decision process and for keeping up harmony in the social texture, it turns out to be important not exclusively to prosecute the gathering to a political decision liable of degenerate practice (corrupt practices) yet to name the partners of such degenerate practice if there be any. The bench interpreted the statute literally and followed different cases such as Ambika Sharan Singh v. Mahant Mahadeva Giri and Ors²; Dr. Vimal (Mrs.) v. Bhaguji & Ors³; M.P. Gopalakrishnan Nair and Anr. v. State of Kerala and Ors⁴; etc.  

This concluded that appeal on the grounds of Religion-be it the applicant, the specialist of up-and-comer, any individual with the assent of the up-and-comer, or even the religion of voters would add up to a degenerate practices. The greater part in this judgment gave a wide development to the expressions of Section 123 of RoPA; and has extended its limits to take in any appeal on the grounds of religion, language, rank or race.

The five Judge Bench of the Supreme Court in 1954 while dealing with the Case, held that the regulation of election speech did not violate Article 19(1)(a) of the Indian Constitution because it was not a restriction upon speech, but only placed certain conditions upon persons who wanted to stand for elections. The main idea being, that a citizen was free not to stand for elections, and engage in uninhibited free speech.

Therefore, appeal for the sake of religion, race, station, network or language is impermissible under the Representation of the People Act, 1951 and would establish a corrupt practice adequate to abrogate the political decision in which such appeal was made in any case whether the appeal was for the sake of the up-and-comer’s religion or the religion of the political decision specialist or that of the adversary or that of the voter’s. The entirety of Section 123 (3) significantly after alteration is that appeal for the sake of religion, race, station, network or language is taboo in any event, when the appeal may not be for the sake of the religion, race, standing, network or language of the possibility for which it has been made. It is a matter of evidence for determining whether an appeal has at all been made to an elector and whether the appeal if made is in violation of the provisions of Sub-Section (3) of Section 123 of RoPA, 1951.

Other Related Cases- Singh Sidhanti v. Pratap Singh Daulta⁵; Kultar Singh v. Mukhtiar Singh⁶;Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte & Ors⁷ etc.

Comments on the Case-

Justice Madan B. Lokur, one of the four majority judges in this case, was prescient when he said way back in 2008: “Secularism is like wine; the more it stays it matures better and tastes good”. Secularism is an ideal in our Constitution which political parties have ignored repeatedly. While the Supreme Court has shown the way, it is now upon the political parties in India and their candidates who have the ethical responsibility to uphold this decision and thereby overcome the hurdles in the practice of secular ideals.

 According to me, getting the law right is only the half the battle in clearing up electoral process in India. The task of effective enforcement, here resting on the overburdened high courts who decide election petitions under the RoPA, still lies ahead if this ruling isn’t to remain nice words on paper and it’s hard to see how the majority’s interpretation of Section 123(3) would stand in the way of a candidate promising to protect constitutional guarantees and rights in favor of a certain group, who have been discriminated or oppressed by membership of that group (as the minority judgment fears). Unmistakably, the exacting translation of Section 123(3) made by the minority judgment is more thoroughly considered, while the purposive elucidation by the greater part judgments offers a cure more terrible than the infection. As the dominant part judgments with every one of their imperfections are the tradition that must be adhered to, Indian vote based system has been rendered more illiberal by its Supreme Court. In spite of the fact that it had raised desires of fixing the harm done by its 1995 Hindutva judgment, the Supreme Court wound up irritating the issue, regardless of all its talk about the immaculateness of the constituent procedure. In the event that anything, with its clearing assault on personality based concerns, the Supreme Court has put forth a profoundly political expression by privileging issues like improvement and patriotism over social equity. [1]

The post Case Comment: Abhiram Singh v. C.D. Commachen (dead) By Lrs. & Ors. Civil Appeal No. 37 of 1992; Civil Appeal No. 8339 of 1995 appeared first on Legal Desire Media and Insights.

1.      Rural Litigation and Entitlement Kendra & Ors. v. State of Uttar Pradesh & Ors. ; Supreme Court of India

Judgment- This case is also known as the ‘Dehradun Valley Litigation’. In Mussoorie hill range of Himalayas, the activity of quarrying was being carried out.  Limestone was extracted by blasting out the hills with dynamite. This practice has also resulted in cave-ins and slumping because the mines dug deep into the hillsides, which is an illegal practice per se. Due to lack of vegetation many landslides occurred, which killed villagers, and destroyed their homes, cattle and agricultural land. It was contended by the mining operators that the case should be dismissed by the court and the issue should be left to the administrative authorities under the Environment Protection but the Court rejected the miners’ arguments the ground that the litigation had already commenced and significant orders had been issued by the court before the adoption of the Environment Protection Act. Later a monitoring committee was made. Monitoring Committee directed the company in certain way but the lessee continued to quarry limestone in an unscientific manner and in disregard of the directions issued by the Monitoring committee. In an application filed by the committee, the court held that the mining activity secretly carried on by Vijay Shree Mines had caused immense damage to the area and directed the firm to pay Rs. 3 lakhs to the fund of the Monitoring committee. After years, the Supreme Court of India has held that pollution caused by quarries adversely affects the health and safety of people and hence, the same should be stopped. The right to wholesome environment is a part of right to life and personal liberty guaranteed under Article 21 of the Constitution. This case was the first requiring the Supreme Court to balance environment and ecological integrity against industrial demands on the forest resources. The Court issued the following directions:

· Orders that mine lessees whose operations were terminated by the court would be given priority for leases in new areas open to limestone mining.

· Orders that the Eco-Task Force of the central department of Environment reclaim and reforest the area damaged by mining and that workers displaced by mine closure be given priority for jobs with the Eco-Task Force operations in the region.

2.      Municipal Council, Ratlam v. Shri Vardhichand & Ors.; Supreme Court of India

Judgment- Ratlam is a city in the State of Madhya Pradesh in India. Some of the residents of the municipality filed a complaint before the Sub-Divisional Magistrate alleging that the municipality is not constructing proper drains and there is stench and stink caused by the exertion by nearby slum-dwellers and that there was nuisance to the petitioners. The Sub Divisional Magistrate of Ratlam district instructed the municipality to prepare a proper development plan within 6 months of the complaint submitted by the residents of Ratlam city (approved by High Court). Afterwards the municipality came in appeal before the apex court of India and alleged that they do not have proper financial support as well as proper funds to comply with the direction given by the sub divisional magistrate of Ratlam city. Respondents argued that the Municipality of Ratlam city had failed to meet its obligations given by the sub divisional magistrate to provide for public health including by failing to abate pollution and other hazardous waste from impacting their homes. Respondents focused to stop pollution caused by a runoff from a nearby alcohol plant resulting in form of malaria. The Supreme Court instructed the Municipal Council of Ratlam to immediately follow order given by the Sub Divisional Magistrate of Ratlam city to protect the area from pollution caused by alcohol plant flowing into the neighboring areas of the resident. Supreme court also ordered the municipal to take necessary steps to  fulfill their obligation by providing adequate number of public laterals for specifically men and women separately along with to provide water supply and scavenging service in morning as well as in evening to ensure proper sanitation. The court also ordered that these obligations to be fulfilled within six months of court order.   The problem was due to private polluters and haphazard town planning, it was held by Supreme Court that pollution free environment is an integral part of right to life under Article 21. The Court Further held that in case municipality feel the need of resources then it will raise its demand from State government by elitist projects, request loans from the State Government from the savings account of public health expenditure to fulfill the resource requirement for the implementation of courts order.

3.      M.C. Mehta v. Union Of India (Gas Leak In Shriram Factory); Supreme Court of India

Judgment- On the midnight of 2/3-12, 1984; there was a leakage of poisonous gas (methyl isocyanate) from Union Carbide Corporation India Limited, located at Bhopal, Madhya Pradesh. This disaster was described as “World’s worst industrial disaster” as it claimed the lives of 2260 people and caused serious injuries with a variety of complications to about 6 lakhs of people. When the matter was pending before the Supreme Court, another gas disaster took place from Shri Ram Foods and Fertilizer Industries (belonging to Delhi Textile Mills Ltd.), Delhi on 4th and 6th December 1985. One advocate died and several others injured. MC Mehta, a leading legal practitioner, Supreme Court filed a “public interest litigation” petition under Article 32 of the Constitution. The Supreme Court through P.N. Bhagwati, C.J., keeping in mind the one-year-old great gas disaster of Bhopal, evolved a new rule, “Absolute Liability” in preference to 1868 rule of Strict Liability. Issues Raised were- Whether the plant can be allowed to continue or not?

If not, what measures are required to be taken to prevent the leakages, explosions, air and water pollution? To find out the number of safety devices exists in the plant and others though necessary is not installed in the plant. Court held that the “absolute liability” of a hazardous chemical manufacturer to give compensation to all those affected by an accident was introduced in this case and it was the first time compensation was paid to victims. The court laid down following principles- The management, Shri Ram Foods was required to deposit in the court, Rs. 20 lakhs as security for payment of compensation to the victims. A green belt of 1 to 5 K.M. widths around such industries should be provided. The court directed the Central Government to set up an Environmental Court consisting of a Judge and two experts (Ecological Sciences Research Experts) as members to assist the judge in deciding the environmental cases. Pursuant upon the recommendation, the Govt. of India passed the National Environment Tribunal Act, 1995 to deal with the cases of environmental pollution.

4.      M.C. Mehta v. Union of India- Ganga Pollution Case; Supreme Court of India

Judgment- In 1985, M.C. Mehta filed a writ petition in the nature of mandamus to prevent these leather tanneries from disposing of the domestic and industrial waste and effluents in the Ganga River. In this petition, the petitioner requested the court to request the Supreme Court (the Court) to restrain the respondents from releasing effluents into the Ganga river till the time they incorporate certain treatment plants for the treatment of toxic effluents to arrest water pollution. The Court highlighted the importance of certain provisions in our constitutional framework, which enshrine the significance and the need for protecting our environment. Article 48-A provides that the State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51-A of the Constitution of India imposes a fundamental duty on every citizen to protect and improve the natural environment, including forests, lakes, rivers, and wildlife. The Court stated the importance of the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act). This act was passed to prevent and control water pollution and maintaining water quality. This act established central and stated boards and conferred them with power and functions relating to the control and prevention of water pollution. Now, the question was raised that what is Trade Effluent? A Trade Effluent is any substance in the form of solid, liquid, or gaseous state which is discharged from any establishment used for carrying out any trade or industrial activity, other than domestic sewage. It was noted that the leather industry is one of the significant industries besides paper and textiles consuming large quantities of water. Most of the water used is discharged as wastewater. The wastewater contains toxic substances that deplete the Oxygen content of the clean river water in which they are discharged. This results in the death of aquatic life and emanates foul odor. The Court held the despite provisions in the Water (Prevention and Control of Pollution) Act, 1974 Act no effective steps were taken by the State Board to prevent the discharge of effluents into the river Ganga. Also, despite the provisions in the Environment Protection Act, no effective steps were taken by the Central Government to prevent the public nuisance caused by the tanneries at Kanpur. In a historic judgment in 1987, the court ordered the closure of a number of polluting tanneries near Kanpur. The court held that- “Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence.” The Court ordered the tanneries to establish primary treatment plants, if not Secondary treatment plants. That is the minimum which the tanneries should do in the circumstances of the case.

5.      Vellore Citizens Welfare Forum v. Union of India; Supreme Court of India

Judgment- The petition was filed against the excessive pollution caused by River Palar due to the release of pollutants by the tanneries and other industries in the State of Tamil Nadu. Palar River is the main source of drinking and bathing water for the surrounding people. Later, the Tamil Nadu Agricultural University Research Centre, Vellore discovered that approximately 35,000 hectares of agricultural land have turned either entirely or partially unsuitable for cultivation. This is one of the landmark cases whereby the Supreme Court critically analyzed the relationship between environment and industrial development. The question which emerged for thought under the steady gaze of the Supreme Court was whether the tanneries ought to be permitted to keep on working at the expense of lives of lakhs of individuals. It was presented by the petitioner that the whole surface and sub-soil water of river Palar has been intoxicated and has resulted in the non-accessibility of consumable water to the inhabitants of the region. The Supreme Court analyzing the report conveyed its judgment putting forth all attempts to keep up a concordance among condition and improvement. The Court conceded that these Tanneries in India are the major foreign exchange earner and furthermore gives work to a large number of individuals. In any case, at the equivalent time, it wrecks nature and represents a wellbeing danger to everybody. The court conveying its judgment in favor of the petitioner guided all the Tanneries to submit a whole of Rs. 10,000 as fine in the Collector’s office. The Court additionally coordinated the State of Tamil Nadu to grant Mr. M. C. Mehta with an entirety of Rs. 50,000 as gratefulness towards his endeavors for the security of the Environment.

6.      A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) & Ors.; Supreme Court of India

Judgment- In this case the respondent industry is ought to be establishing a new factory for the production of vegetable oils in the State of Andhra Pradesh. Respondent industry purchased a piece of land in Indore village named Peddashpur. Within the range of the village the reservoirs that provides drinking water for the 5 million of people around the area. Issues raised were- The validity of the orders passed by the A.P. Pollution Control Board? The correctness of the orders of the Appellate Authority under section 28 of the Water Act, 1974? The validity of exemption granted for the operation of the 10 k.m. rule? In what ways that the technological aspects of the environmental law cases ought to be adjudicated? In the impugned judgment, the Supreme Court relied on the judicial doctrine of the Precautionary Principle. The Precautionary Principle as it is very name suggests needs the authorities in charge to anticipate, prevent and attack the reason behind environmental pollution. This rule is based on the salutary theory that it is better to err on the side of caution and safety than in the wrong way wherever environmental damage, once done, is also irreversible. In other words, one ought to take measures in anticipation of environmental damage, instead of to hunt cure when the damage is inflicted. It would be better to stay safe earlier then be sorry later. Hindrance is healthier than cure. The Court in the present judgment directed that the authority to be appointed under Section 3(3) of the Environment (Protection) Act, 1986 that shall implement the Precautionary Principle and also the Polluter Pays Principle. Further, it had been discovered that the new conception envisages that when a risk of great or irreversible damage to the environment is perceived, the burden of proof lies on the one that is proposing to undertake the activity in question.

7.      M. C. Mehta v. Kamal Nath & Ors.; Supreme Court of India

Judgment- The Indian Express published an article reporting that a private company, Span Motels Private Ltd. (‘the Motel Company’), owner of Span Resorts, had floated an ambitious project called Span Club. Kamal Nath who was the Minister of Environment and Forests had direct links with this company. The company encroached upon 27.12 big has of land which also included forest land. The land was regularized and subsequently leased out to the company on 11th April 1994. Issues raised were- Whether the court has wrongly inducted Mr. Kama Nath as a Respondent in the present petition? Whether the construction activity carried out by the Motel Company justified? The Supreme Court rejected this contention and held that the forest lands which have been given on lease to the Motel by the State Governments are situated at the bank of the river Beas. The Beas is a young and dynamic river and it changes its course very often. The right bank of the river is where the Motel is located comes under forest. The area is ecologically fragile and therefore it should not be converted into private ownership. The Supreme Court applied the ‘Doctrine of Public Trust’ to the present case. Doctrine of Pubic trust is an ancient legal doctrine which states that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, water and the forests have such a great importance to the people as a whole that it would be unjustified to make them a subject of private ownership. Therefore- The Court quashed the lease-deed by which forested land was leased to the Motel Company and held that the construction activity carried out by the Motel Company was not justified. The Motel was ordered to pay compensation by way of cost for the restitution of the environmental and ecology of the area. The Motel was ordered to construct a boundary wall at a distance of not more than 4 meters for the building of the motel beyond which they were not allowed to use the land of the river basin. The Court restricted the Motel from discharging untreated effluent into the river. Himachal Pradesh Pollution Control Board was directed to inspect and keep a check.

8.      M.C. Mehta v. Union of India- Vehicular Pollution Case; Supreme Court of India

Judgment- Union Territory of Delhi has a total population of 96 lakhs. Out of this population approximately 90 lakh people reside in urban areas. At the time of independence the population of Delhi was around 5 lakh. In nearly 40 years, it multiplied by 19 times. This writ petition was filed by M.C. Mehta requesting the court to pass appropriate orders for the reduction of Vehicular Pollution in Delhi. Supreme Court in this case held that Indian constitution recognizes the importance of protection of environment, life, flora and fauna by the virtue of Article 51-A and Directive principles of state policy. Therefore, it is the duty of the state to protect the environment and all the persons using automobiles should have a fair idea of the harmful effects on the environment due to emissions caused by their vehicles.  A committee was setup to look in to the problem and decide on what can be done. The committee was setup with the following objectives –

• To make an assessment of the technologies available for vehicular pollution control in the world;
• To make an assessment of the current status of technology available in India for controlling vehicular pollution;
• To look at the low cost alternatives for operating vehicles at reduced pollution levels in the metropolitan cities of India.
• To examine the feasibility of measures to reduce/eliminate pollution from motor vehicles both on short term and long term basis and make appropriate recommendations in this regard;
• To make specific recommendations on the administrative/legal regulations required for implementing the recommendations.

The committee was ordered to give reports in two months and also mention the steps taken.

9.      Subhash Kumar v. State of Bihar & Ors.; Supreme Court of India

Judgment- The petition was filed by the way of Public Interest Litigation by Subhash Kumar for preventing the pollution of the water of the river Bokaro from the discharge of sludge/slurry from the Tata Iron & Steel Co. Ltd. The Petitioner alleged that the Parliament enacted Water (Prevention and Control of Pollution) Act, 1978 for maintaining the wholesomeness of water and for the prevention of water pollution. The State Pollution Control Board failed to take actions against the Company and permitted the pollution of the water and the State of Bihar instead of taking actions, it is granting a lease on the payment of royalty for collection of slurry to various persons. Issue raised was whether the water of the river Bokaro is polluted by the discharge of the slurry from the Company? The apex court held that the right to get pollution free water and air is a fundamental right under Article 21. Following this, the right to pollution free environment was incorporated under the head of right to life and all the laws courts within the Indian Territory were bound to follow. Public health and ecology were held to be the priorities under Article 21 and the constitution of a green bench was also ordered by the Supreme Court. The Tata Iron & Steel Co. has been granted sanction from the Board for discharging effluents from their outlets under Sections 25 and 26 of the Water Prevention and Control of Pollution Act, 1974. Before granting the discharge of the effluents to the Bokaro River, the Board has analyzed and monitored that the effluents generated did not pollute the river. It was clear from the facts that and pleadings on behalf of the Respondent that there was no good reason to accept Petitioner’s contentions that the water of Bokaro River was polluted by the discharge of slurry/sludge from the respondent Company, on the other hand, the bench found that effective steps were taken by State Pollution Control Board to check pollution. Therefore, the petition was dismissed.

10.  Samit Mehta v. Union of India & Ors.; National Green Tribunal

Judgment- In this case, an environmentalist filed an application regarding the damage caused by the sinking of a ship which was carrying coal, fuel oil and diesel. Due to the sinking, a thick oil layer was formed on the surface of the sea which caused damage to the marine ecosystem. This case was held to involve questions of public importance and significance of environmental jurisprudence. The tribunal noticed the negligence. The sinking of the ship was the result of the negligence of the Respondents and upholding the principle of Polluter Pay. The Tribunal has further held that it has power to grant compensation for the costs incurred by the Central Government to clean the wrecks which may pose hazards to navigation and to marine environment. The Court thereby reaffirmed the “Precautionary Principle” and “Polluter Pays Principle” and also recognized Right to clean environment as a fundamental right under Article 21 of the Constitution of India which guarantees protection of life and personal liberty. The Tribunal held that the ship sinking accident is said to have led to the pollution of the marine environment on three counts: (a) Dumping of the cargo on the ship, i.e., coal in to the sea; (b) Release of the Fuel oil stored on board and the resultant oil spill caused by it and (c) wreckage of the ship itself, which contained the materials. In the present case, the ship used in the transport is unseaworthy and the respondents should have never used the ship for transport purpose. Therefore, in the present case, sinking of the ship is held equivalent to dumping. Environmental compensation of Rs. 100 crores was imposed. This is one of the biggest compensation ever made by private entity to government.

11.  Ms. Betty C. Alvares v. The State of Goa and Ors. ; National Green Tribunal

Judgment- A complaint regarding various instances of illegal construction in the Coastal Regulation Zone of Candolim, Goa was made by a personal of foreign nationality. Her name was Betta Alvarez. The first objection was that Betty Alvarez had no locus standi in the matter because she was not an Indian citizen and thus legally incompetent to file the petition under Article 21 because as a non-citizen, she has not been guaranteed any right under the Indian Constitution. The second objection was that the matter was barred by the law of limitation and should be dismissed. The case was initiated in the Honorable High Court of Bombay Bench at Goa in the form of a PIL but by an order dated Oct 23, 2012, the Writ Petition was transferred to the National Green Tribunal. Therefore The Tribunal in bold terms stated that even assuming that the Applicant – Betty Alvarez is not a citizen of India, the Application is still maintainable as she had filed several other writ petitions and contempt applications before she filed the present application, in which she had asserted that the Respondents had raised some illegal constructions by way of which they were encroaching the sea beaches along with governmental properties. The Court laid down in very bold terms that once it is found that any person can file a proceeding related to the environmental dispute, Ms. Betty’s application is maintainable without regards to the question of her nationality.

12.  Art of Living Case on Yamuna Flood Plain; National Green Tribunal

Judgment- The National Green Tribunal (NGT) held the Art of Living Foundation of Sri Sri Ravi Shankar responsible for the alleged damage caused to the Yamuna floodplains due to the World Cultural Festival organized in March 2016. NGT Panel found that the organizers of the Art of Living Festival violated the environmental norms and it has severely damaged the food plane area at the bank of Yamuna River in Delhi. Earlier, the Government of Delhi and Delhi Development Authority (DDA) has permitted the Art of living festival organizers but it was an under some conditions. The NGT panel imposed a penalty of Rs. 5 Crore on Art of Living Foundation as environmental compensation after coming down heavily on the foundation for not disclosing its full plans. The panel also warned AOL Foundation that in case of failure to pay the penalized amount the grant of Rs.2.5 crore which the ministry of culture is supposed to pay AOL will be attached. While reacting with dismay to the verdict, the Art of Living Foundation expressed disappointment and claimed that it had complied with all environment laws and norms and its’ submissions were not considered by NGT. The Art of Living Foundation said in a statement that-“We will appeal to Supreme Court. We are confident that we will get justice.”

13.  -Save Mon Region Federation and Ors. v. Union of India and Ors. ; National Green Tribunal

Judgment- The Save Mon Region Federation, on behalf of the Monpa indigenous community, challenged the environmental clearance granted for the construction of a hydroelectric dam on the Naymjang Chhu River.  The Federation pointed to faults in the environmental impact assessment (EIA) procedure and a lack of close scrutiny of the project by the expert appraisal committee (EAC). The National Green Tribunal concluded: “It is true that hydel power project provides eco friendly renewable source of energy and its development is necessary, however, we are of the considered view that such development should be ‘sustainable development’ without there being any irretrievable loss to environment. We are also of the view that studies done should be open for public consultation in order to offer an opportunity to affected persons having plausible stake in environment to express their concerns following such studies. This would facilitate objective decision by the EAC on all environmental issues and open a way for sustainable development of the region.” Therefore, the project was close to a wintering site for a bird Black-necked Crane, which is included under Schedule I species under the Wildlife Protection Act of 1972. It also comes under the ‘Threatened Birds of India’ literature by the appellants in this case. It also had other endangered species such as the red panda, snow leopard, etc. The tribunal gave orders to suspend the clearance for the project. It also directed the EAC to make a new proposal for environmental clearance. The tribunal also directed the Ministry of Environment and Forest in the country to prepare a study on the protection of the bird involved in the case.

14.  Almitra H. Patel & Ors. v. Union of India and Ors. ; National Green Tribunal

Judgment- This case has been the biggest case dealing with the solid waste in India. In this case, Mrs. Almitra Patel and another had filed a PIL under Article 32 of the Constitution of India before the Apex Court whereby the Petitioner sought the immediate and urgent improvement in the practices that are presently adopted for the way Municipal Solid Waste or garbage is treated in India. The Tribunal found that the magnitude of the problem was gigantic because over a lakh tonnes of raw garbage is dumped every day and there is no proper treatment of this raw garbage which is dumped just outside the city limits on land, along highway, lakes. The Tribunal noted the requirement of conversion of this waste into a source of power and fuel to be used for society’s benefit, taking into consideration the Principles of Circular Economy. The tribunal considered it one of the major problems faced by India over the last few years as lakh tonnes of garbage go without proper treatment and just dumped outside the city in the outskirts. The tribunal noted the requirement to solve this problem and make it a source of power for the benefit of society. After hearing the case the tribunal issued over 25 directions. The tribunal asked all the states and UTs to strictly follow and implement the Solid Management Rules, 2016. A complete prohibition on open burning of waste on lands was made after the case. Absolute segregation has been made mandatory in waste to energy plants and landfills should be used for depositing inert waste only and are subject to bio-stabilization within 6 months. The most important direction of the Tribunal was a complete prohibition on open burning of waste on lands, including at landfills.

15.  K.M. Chinnappa, T.N.  Godavarnam v. Union of India & ors. ; Supreme Court of India

Judgment- The court held that- Environmental law is an instrument to protect and improve the environment and to control or prevent any act or omission polluting or likely to pollute the environment. In view of the enormous challenges thrown by the industrial revolutions, the legislatures throw out the world are busy in this exercise. In a number of cases, sentences of imprisonment have been imposed. Apart from the direct cost to business of complying with the stricter regulatory controls, the potential liabilities for non compliance are also increasing. In the present case the Forest Advisory Committee under the Conservation Act on 11/07/2001 examined the renewal proposal in respect of the Company’s mining lease. The Ministry of Environment and Forests deferred a formal decision on the said recommendation as the matter was pending before this court. Taking note of factual background, it is proper to accept the time period fixed by the Forest Advisory Committee constituted under Section 3 of the Conservation Act. That means mining should be allowed till the end of 2005 by which the time the weathered secondary ore available in the already broken area should be exhausted. This is, however, subject to fulfillment of the recommendations made by the Committee on ecological aspects.  Before, we part with this case; note that with concern that the State and Central Government were not very consistent. Whatever be the justification, it was but imperative due application of mind should have been made before taking particular stand. Certain proceedings have been initiated against the company and these proceedings shall be considered by the respective forums/courts.

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Rescue Agreement is an agreement on the rescue of astronauts, the return of astronauts and the return of objects launched into outer space. It was negotiated by the Legal Subcommittee of COPUOS from 1962-1968. The UN General Assembly adopted the text of the Rescue Agreement on 19 December 1967 (resolution 2345 (XXII)), and it came into force on 3 December 1968. As of January 2019, ninety eight states have approved the Rescue Agreement of 1968.

PROVISIONS

The Rescue Agreement requires that any state that is party to the agreement then whether because of accident, distress, emergency; it should provide all possible assistance to rescue. The states shall take all the possible steps and promptly return them to launching state.

THE OUTER SPACE TREATY

Implementation of the Outer Space Treaty; is reflected in the Preamble which notes the provisions and expresses the desire “to develop and give further concrete expression to these duties.”

Article 1, was one of the least controversial, and reflects the essential humanitarian purpose i.e. each contracting party on receiving information that the personnel of space craft have suffered accident or have made an emergency or unintended landing in territory under its jurisdiction, or on the high seas, or at any other place not under the jurisdiction of any state shall immediately –

a) Notify the launching authority or, if cannot identify and immediately communicate with launching authority, immediately make a public announcement by all appropriate means of communication at its disposal.

b) Notify the Secretary General of the United Nations, who should disseminate the information.

Article 2, the controversy over this article arose out of the sensibilities of states which would be required to take “take all possible steps” to rescue them and render them all assistance. Such operations shall be subject to the direction and control of contracting party, which shall act close and continuing consultation with launching authority.

Article 3, provides for the rescue if personnel of spacecraft who have “alighted” on high seas or any other place not under the jurisdiction of any state. The Contracting Parties which are in position to do so, if necessary, extend assistance in search and rescue operations. They shall inform launching authority and Secretary General of the United Nations.

Article 4, If, owing to accident, distress, emergency or unintended landing, the personnel of a spacecraft land in territory under the jurisdiction of a Contracting Party or have been found on the high seas or in any other place not under the jurisdiction of any State, they shall be safely and promptly returned to representatives of the launching authority.

Thus, providing this option in Article 4 may be considered as an improvement in Article 5 of the Outer Space Treaty.

Article 5,

a) imposes the duty on the contracting party to notify the launching authority or Secretary General when receives information or discovers that a space object or its component parts has been come down its territory, on high seas or any other place. Similar to the intention of Article 1.

b) The obligation to recover the object or the component part; only arises where the launching authority has made request.

c) The return of objects which have landed on the territory of contracting party or on the high seas or in any other place not under jurisdiction of any state.

d) Notwithstanding clause b and c of this article, a contracting party which has to reason to believe that a space object or its component; is of a hazardous nature may so notify the launching authority.

e) Payment by the launching authority of expenses incurred by Contracting Party in recovering and returning a space object or its component pursuant to its obligation under clause b and c.

Article 6, under this a mechanism is provided through which an international organization may receive the benefits and incur the obligations of the agreement and to the treaty of principles governing the activities in the space Exploration and use of Outer Space, including moon and other celestial bodies.

Article 7, “This agreement shall be open to all States for signature,” it seeks to assure the attainment of a fundamental humanitarian objective – the saving of lives. The provisions of Article 7 set forth procedures of accession, ratification, deposit of instruments of ratification.

Article 8, “amendments shall enter into force for each State Party to the Agreement accepting the amendments upon their acceptance by a majority of the States Parties to the Agreement and thereafter for each remaining State Party on the date of acceptance by it”

Article 9, provides that a State Party may give a written notice of withdrawal from the agreement to the depositary Governments one year after its entry into force.

Article 10, provides equal authenticity of the English, Russian, French, Spanish and Chinese texts, and for the transmission of certified copies by the depositary Governments to the Governments of signatory and acceding States.

VARIATION NEEDED

Parties Entitled to be rescued – The Outer Space treaty does not provide a definition for the term ‘astronaut’ and a result it is unclear whether this provision applies to.

What is Astronaut?

An Astronaut could be described as a person who travels beyond Earth’s atmosphere for spaceflight. An Astronaut is ‘a person who has been trained for travelling in space.’

The Rescue Agreement adds some clarity to the issue by referring to the “personnel of a spacecraft” rather than “astronauts.” and as a result it is unclear whether this provision applies to, for example, a space tourist – a person who clearly has not received the training of a traditional astronaut.

CRITICISM

This agreement has been criticized for being undefined or vague. Concerned of

– Who is entitled to be rescued?

– What constitutes a spacecraft and its components?

– The cost burden of rescue mission.

CONCLUSION

The Rescue Agreement bears witness to the fact that the United Nations can make a real contribution to extending the rule of law to new areas and to insuring the positive and peaceful ordering of man’s efforts in science and the building of a better world. It now reflects a wide harmony, of views on procedures, to be considered applicable to the rescue of astronauts and other space objects

Author: Sristi Raichandani, Legal Intern at Legal Desire (June 2020)

An optimistic legal enthusiast persuing LLB at Deen Dayal Upadhyay University , Gorakhpur who aims to reach the peak of legal professionalism.

My best interests include legal research, social services and volunteer work. My real strength is my attention to detail and I Believe Satisfaction lies in the effort, not in the attainment.

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