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The Transgender Persons (Protection Of Rights) Act, 2019
Legislations

The Transgender Persons (Protection Of Rights) Act, 2019

This Act came into force with the objective for prohibiting the discrimination against transgender persons and to establish a mechanism for social, economic and educational empowerment for transgender persons in India. The act has nevertheless attracted a lot of criticism. This Article aims to delineate the major arguments both for and against the provisions of this Act. 

The Transgender Persons (Protection of Rights) Act, 2019 (hereinafter referred to as the ‘Act’) was first introduced as a bill by Thawar Chand Gehlot, Minister of Social Justice and Empowerment, and was passed by both houses without any amendments. The process was initiated when in 2013, the government set up an expert committee to study the problems faced by transgenders and recommend solutions for the same. The committee set up a welfare board in Tamil Nadu. In 2014, a private member bill, The Transgendered Persons, was introduced in the Rajya Sabha, by Tiruchi Siva, a Member of Parliament from Tamil Nadu. The bill was passed in Rajya Sabha but not in the Lok Sabha.  In 2016, the government introduced another bill in the Lok Sabha and it was referred to a Standing Committee which made a number of recommendations but the bill lapsed. The 2019 Act preceded the Transgender Persons (Protection of Rights) Bill, 2018.

The Legislation of 2019 defined a transgender person as “a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta” (1). The Act prohibited discrimination against a transgender person. It also promises to provide health care facilities of different types the transgender community.

Despite the efforts of the Legislature, this legislation received a lot of criticism which led to mass retaliation across the different parts of the nation. The legislation was meant to be a consequence of the directions of the Supreme Court of India given in the landmark judgment of National Legal Services Authority v Union of India (2), which gave transgender persons the right to “self-identification” as male, female or transgender and gender reservations in educational institutions as well as public employment, but it failed miserably. One of the gender-rights activist, Harish Iyer, called the Act “regressive”. It was noticed by some that the legislation was rather made in haste because the 17th Lok Sabha’s monsoon session ended on August 6, 2019, and worked only for 281 hours in 37 days, during which they passed 35 bills. On average, a bill was passed in every eight hours, which clearly showed the seriousness with which the law was made.

Let us know discuss the strengths and weaknesses of The Transgender Persons (Protection of Rights) Act, 2019.

Strengths

  • As mentioned in Section 3 of the Act, it prohibits discrimination against a transgender person at various places and situations.
  • Under Section 12 of the Act, every transgender person shall have a right to reside and be included in his household. If the immediate family is unable to care for the transgender person, the person will be sent to a rehabilitation centre, on the orders of a competent court.
  • Under Section 3(i) of the Act, it is mentioned that no government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion. 
  • Section 13 of the Act says that educational institutions funded or recognized by the relevant government shall provide inclusive education, sports and recreational facilities for transgender persons, without discrimination. 
  • Section 15 of the Act, says that the government must take steps to provide healthcare facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries. 
  • Section 6(1) of the Act says that a transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.  A revised certificate of identity may be obtained only if the individual undergoes surgery to change their gender either as a male or a female. 
  • Section 8 states that the relevant government will take measures to ensure the full inclusion and participation of transgender persons in society. The state will take steps for their rescue and rehabilitation, vocational training and self-employment, create schemes that are transgender sensitive, and promote their participation in cultural activities. 
  • Section 18 of the Act recognizes the offences against transgender persons of forced or bonded labour (excluding compulsory government service for public purposes), denial of use of public places, removal from household, and village, physical, sexual, verbal, emotional or economic abuse.  Penalties for these offences vary from six months to two years, and a fine.
  • Section 16 of the Act mentions that the Central Government will constitute a National Council for Transgender Persons which will advise as well as monitor the effect of the different policies and legislations of the government on the transgender persons. The NCT will consist of Union Minister for Social Justice (Chairperson), Minister of State for Social Justice (Vice-Chairperson), Secretary of the Ministry of Social Justice, one representative from ministries including Health, Home Affairs, and Human Resources Development.  Other members include representatives of the NITI Aayog and the National Human Rights Commission.  State governments will also be represented.  The Council will also consist of five members from the transgender community (by rotation) and five experts from non-governmental organisations.

Weaknesses

  • The Act does not allow complete self-perception of gender identity based on the 2014 Supreme Court judgment as the certificate of gender identity is given by the District Magistrate only after examining the medical reports.
  • The Act continues to mandate sex reassignment surgeries for transgender persons and gives emphasis on binary gender identity.
  • The Act sets a lighter sentence for several criminal offences in comparison to those mentioned in the Indian Penal Code for the cis-gender, which is a minimum of 7 years. It also does not clearly define the offences against the transgender persons. 
  • There was no mention of an effective mechanism to enforce legally, the prohibition of discrimination.
  • If a transgender person wants to leave his/her home because of the non-acceptance of his/her fluid sexuality, they can no longer join the trans-community. They must instead go to court first which will send them to a ”rehabilitation centre”. This shows that the legislation makers, still considers homosexuality, non-binary gender as a disorder.
  • Medical assistance needed for the gender prescription shows that though the legislation does not mention a single word about “Screening Committee”, but it still exists in the background.
  • Total absence of discussion about “trans men” (female to male transgender). There is no mention of the facilities and help required by transmen. The Act strongly focuses on hijras and transwoman and not on trans men, intersex persons, and genderqueer.
  • The legislation completely ignores the need for reservation in public sector jobs and educational institutions for the transgender persons, unlike that given to the other socially and economically backward classes of the society.
  • It does not discuss the issue of bullying which is a very common issue for the community and is faced often.
  • The act criminalized begging. It also doesn’t talk about the traditions of the transgender community which includes badhai and neik.
  • It does not talk about inheritance.

After discussing the strengths and weaknesses of the legislation, some of the suggestions that can be put forward for improving it are:

  • Inclusion of reservations at different stages for the transgender community.
  • Inclusion of the community in making the bill.
  • Inclusion of traditions of the community.
  • Focusing of non-binary in gender rather than transwomen and hijras.

Ever since the legislation has come into force, it has received severe criticism. Authoritative organizations like Human Rights Watch and International Commission of Jurists have also criticized it. The Act has been a regressive one which at very least grants gender identity and equal rights to the community in India. A petition was filed by advocate and transgender rights activist, Swati Bidhan Baruah, in the Supreme Court challenging the constitutionality of the 2019 legislation. We have yet to see what the court decides. The only and most recent development with regards to The Transgender Persons (Protection of Rights) Act, 2019, took place on April 20, 2020, when the Central Government directed all the departments of the central government to include ‘transgender’ as a separate category for recruitment in civil services and other posts.

(1) The Transgender Persons (Protection of Rights) Act, 2019, Section 2(k)
(2) AIR 2014 SC 1863

Case Reviews

CIT V. Hariprasad Bhojnagarwala (2012) 342 ITR 69

This case is based upon the applicability of deductions under Section 23(2) of the Income Tax Act, 1961 on Hindu Undivided Family.

Background

The instant case (1) was a reference proceeding under the Income Tax Act, 1961 [hereinafter referred as ITA’] which was referred to the Full Bench of the Gujarat High Court, presided by Hon’ble Chief Justice Mr. S.J. Mukhopadhaya, Hon’ble Mr. Justice Akil Kureshi and Hon’ble Ms. Justice Harsha Devani. The said case was is fact first referred to the Division Bench of the Gujarat High Court [hereinafter referred as ‘HC’] but having convinced that the case involves a substantial question of law and deserves to be heard by a Full Bench, the Division Bench referred the matter to the Full Bench of the Gujarat HC. The question herein pertained to the applicability of deduction under Section 23(2) of the ITA (2) to a Hindu Undivided Family [hereinafter referred as HUF’]. 

Relevant Facts 

  1. The assessee in the present matter was an HUF which derived certain income from house property. Furthermore, at the time of filing of the Income Tax return the assessee made a claim of deduction under Section 23(2) of the ITA but the same was rejected by the Ld. Income Tax Assistant Commissioner who took a view that deduction under the said section can only be granted to an individual natural person. 
  2. Thereafter, the assessee preferred an appeal before the Ld. Commissioner of Income Tax [hereinafter referred as CIT’] but the Ld. CIT also rejected the claim of the assessee on the same grounds as applied by the Ld. Income Tax Assistant Commissioner. 
  3. In further appeal, the assessee approached the Hon’ble Income Tax Appellate Tribunal, which relying upon various precedents concluded that deduction under section 23(2) can also be availed by an HUF. 
  4. Accordingly, the instant case was referred to the Division Bench of the Gujarat HC under Section 256 of the ITA by the CIT, which further referred the matter to the Full Bench of the Gujarat HC. 

Issues Addressed

  • Whether the benefit of deduction under Section 23(2) of the ITA can be availed by an HUF?
  • Whether an HUF can be held to be a fictional entity?

Rules Applicable 

  1. Section 23 of the ITA
  2. Section 7 of the Wealth Tax Act, 1957 (3)
  3. Section 13 of the General Clauses Act, 1957 (4)
  4. Section 256 of the ITA

Analysis 

[Issue i] Whether the benefit of deduction under Section 23(2) of the ITA can be availed by an HUF?

It is submitted that for the purposes of claim of deduction under section 23(2) of the ITA, there are two essentials which shall be fulfilled by the assessee: 

  1. The assessee must be in self-occupation of the property; and
  2. The assessee must be a natural person. 

The entire facet of deduction under Section 23(2) is based on the central premise that the property of the assessee must be self-occupied and it must

not be used for purposes other than residence. Accordingly, the intent of the legislature is clear that it wants to provide the benefit of deduction from annual value of property only in cases where the use of the property is for residential purposes only. Reference can be made to the relevant provision of the ITA which states as follow:

“23. Annual value how determined. – 

(2) Where the property consists of a house or part of a house which 

(a) is in the occupation of the owner for the purposes of his own residence; or 

(b) cannot actually be occupied by the owner by reason of the fact that owing to his employment, business or profession carried on at any other place, he has to reside at that other place in a building not belonging to him, 

the annual value of such house or part of the house shall be taken to be nil.”

The use of the term owner in the aforesaid section of the ITA has been particularly a moot question and different HC(s) have expressed their opinions on the said term. For instance, the case of CIT v. Mohammad Tyamboo (5), wherein the Hon’ble Jammu and Kashmir HC held that the term owner under section 23(2) essentially refers to a natural person or in other words an individual and the benefit of deduction under the said section cannot accordingly be availed by a partnership firm. 

Similarly, in the case of CIT, Delhi v. Dewan Chand Dholan Dass (6), it was propounded by the Hon’ble Delhi HC that the nature of relief under Section 23(2) is available only to an assessable entity and not by a company or a partnership firm which constitute different individual assessable entities. 

For the purposes of availment of benefit under Section 23(2) of the ITA by an HUF reliance can also be placed upon the provision of section 7(4) of the Wealth Tax Act, 1957 which was similar in application and interpretation to the section 23(2) of the ITA. The Gujarat HC while interpreting the applicability of the said section on an HUF held that HUF can own as well as reside in a property and accordingly can avail the benefit of deduction under Section 7(4) of the Wealth Tax Act, 1957. (7)

Moreover, the provision of Section 13 of the General Clauses Act, 1897 also holds special importance for the purpose of delineating the scope of deduction under Section 23(2) of the ITA. It states that: 

“13. Gender and number: In all Central Acts and Regulations, unless there is anything repugnant in the subject or context, 

(1) words importing the masculine gender shall be taken to include females; and

(2) words in the singular shall include the plural, and vice versa.”

Keeping in view the aforesaid, it is submitted that the interpretation of the term owner under Section 23(2) of the ITA shall accordingly include owners for the purpose of claim of deduction made thereof and an HUF can also be brought within the ambit of the said section. 

[Issue II] Whether an HUF can be held to be a fictional entity?

It is submitted that an HUF from the jurisprudential point of view is essentially a group of individuals as distinct partnership firms or a company who come together in order to function as a group for common economic benefits. An HUF being a person for the purposes of ITA and headed by a Karta cannot be treated as a legal fiction in stricto sensu as it is essentially a group of individuals who either connected by blood or through some other means and accordingly can avail deduction under Section 23(2) of the ITA. 

Similar Case Law  

  1. Income Tax Officer v. Tarlock Singh and Sons (8)

The instant case was an appeal filed by the Revenue Department before the Income Tax Appellate Tribunal [hereinafter referred as ITAT’] under Section 253 of the ITA. The appeal concerned the question of law as to whether deduction under section 23(2) can be claimed by an HUF. The Hon’ble ITAT after hearing both the parties concluded that deduction under Section 23(2) can be availed by a natural person who can physically occupy a premise. Further, the ITAT also observed Karta who is the representative of an HUF is also a natural person who can reside in a premise and accordingly the benefit of deduction can also be availed by an  HUF and the words ‘in occupation of the owner for the purposes of his own residence’ also includes an HUF. 

Conclusion 

It is concluded that the approach followed by the Hon’ble Gujarat High Court in the instant matter is plausibly good in law as it protects the interests of an HUF and gives due regard to the intention of the legislature as to provide benefit of deduction under Section 23(2) to an HUF. A literal interpretation of the words ‘in occupation of the owner’ as used under Section 23(2) would however have led to a flawed conclusion to the detriment of an HUF for the availment of deduction in case of self-occupied property. 

Additionally, the reasoning of the court while taking into account the jurisprudence of the existence of HUF is another plausible aspect of the judgement as it clearly distinguishes an HUF from other entities such as a partnership firm and a company which are fictional entities and cannot be allowed to claim deduction under Section 23(2) of the ITA due to the want of the requirement of self-occupation as mandated by the legislature for the purposes of deduction under section 23(2) of the ITA.  

(1) In Re: Commissioner of Income Tax v. Hariprasad Bhojnagarwala, Appeal No. 174 of 1995 (Guj. HC).
(2) § 23(2), The Income Tax Act, No. 43 of 1961, India Code (1961).
(3)  § 7, The Wealth Tax Act, No. 27 of 1957, India Code (1957).
(4)  § 13, The General Clauses Act, No. 10 of 1897, India Code (1897).
(5) Commissioner of Income Tax v. Mohd. Amin Tyamboo, 125 ITR 375.
(6) Commissioner of Income Tax, Delhi v. Dewan Chand Dholan Dass, 132 ITR 790.
(7) Commissioner of Wealth Tax v. Ashok Raje Gaekwad, 276 ITR 54.
(8) Income Tax Officer v. Tarlock Singh & Sons, 1989 29 ITD 139 (Delhi).


epidemic diseases act 1897
Legislations

The Epidemic Diseases Act, 1897

With an ill-drafted, four-section Act on Epidemics, is the Indian Legal framework ready to deal with a Pandemic?

The Epidemic Diseases Act, 1897 (hereinafter referred as the ‘Act’) of India is a law of colonial vintage. In the year 1896, Bombay was struck by a devastating Bubonic plague. It was transmitted through bacteria and very little was known about the disease or where it came from. To tackle such an untraceable disease and to restrict the movement and mass gathering of people so that its spread can be regulated, the British Government enacted this Act on 4th February 1897. 

By exercising the powers provisioned under the Act, the colonial authorities searched the suspected plague cases in homes of the public and among passengers by segregations, evacuations and also by demolitions of the places which were infected.

The preamble of the Act states that it is enacted “for the better prevention of the spread of dangerous epidemic diseases”.

The Act consists of total four sections. 

Section 2– It empowers the State Governments and Union Territories to take special measures and formulate regulations to prevent the outbreak of the dangerous epidemic disease if it satisfied that the State or any part thereof is threatened with the outbreak of such disease.

  • If the State Government is satisfied that the ordinary provisions of the law are insufficient for the time being to contain the outbreak of the disease, it may take or empower any person to take such measure or temporary regulations, by public notice, which shall be observed by the public to prevent the outbreak.
  • The State Government may also determine that in what manner and by whom the expenses incurred would be defrayed, if any.
  • It may also prescribe regulations, without prejudice, for inspection of persons travelling by railway or otherwise and the segregation of suspected persons, of being infected with such disease, by the inspecting officer in hospitals or temporary accommodations.

Section 2A- It empowers the Central Government to prescribe regulations for the inspection of any ship or vessel which leaves or arrives at any port in India and the detention of such person as necessary to prevent the outbreak.

Section 3- This provision provides for penalties to such persons who disobeys any regulation or order as made under this Act. Such person shall be deemed to commit an offence under Section 188 of the Indian Penal Code, 1860 i.e. Disobedience to order duly promulgated by public servant.

Section 4- It provides legal protection to the implementing officers acting under this act from any suit or legal proceeding.

This Act was designed to merely put government machineries into action upon a considerable threat of an epidemic disease and not a code for establishing the roles and responsibilities of general public health systems.

The act was described as “one of the most draconian pieces of sanitary legislation ever adopted in colonial India” by David Arnold because it provides for physical examination and detention of the suspects, destruction of infected properties and banning of public gatherings for any purpose including even religious purposes.

Historian Pandurang Balkawade said- “To control the spread of the disease, special powers were needed and the British rulers enacted the law giving extraordinary powers to officials…..the way British officers and soldiers implemented the Act was brutal and inhuman at times”.

A strong backing of legislation is required to deal effectively with the epidemic currently being faced by the nation. The executive orders lack adequate powers which the legislation is imbibed with. Where other countries have detailed legislations to deal with the outbreak of such dangerous diseases, India only has a four-section ambiguous legislation.

For instance, England has the “Public Health (Control of Disease) Act, 1984”. It has specific delineated roles for authorities to prevent the diseases. This Act provides for notification of an infectious disease, responsibilities of healthcare workers in identifying the contagious individuals and a clear hierarchical chain in which the identification has to be reported. It provides for measures to be taken, responsibilities of local authorities and national authorities, the pre-planned format of operation of the responding authorities, etc. These provisions reduce the scope of confusion and jurisdictional issues at the time of crisis.

Another example is “The Public Health Services Act, 1944” of the United States. It provides for an administrative structure through which the public health emergency shall be dealt with. It mentions clear separation of the roles and responsibilities of the Centre and States. Further, the Act very-well anticipates the need for additional manpower during a nationwide epidemic by creating a reserve corps to supplement the commissioned corps on a short notice.

To start with the defects in The Epidemic Diseases Act of India, it even fails to define when and how a disease shall be declared as an epidemic. As far as an epidemic is considered, India’s one-page, four-section act is incapable of providing any adequate legislative backing to even a minor public health emergency. Instead of anticipating and pre-planning the administrative framework, the Act leaves all the power and responsibilities with the State Governments to make regulations and take measures. There should be a strong and systematic procedure in the Act, so that the immediate measures could be taken rather than delaying the process by the States struggling to come up with administrative and health protocols on the fly whilst in the midst of a crisis. This would result in every State differing in its strategy and may even result in abuse of power. There is no provision that the local or state level health or other authorities may follow in case of an emergency. The Epidemic Diseases Act of India is a pre-independence act and therefore fails to provide for any clarity upon the responsibility of different states and the union upon controlling of the nationwide epidemic.

However, many Constitution experts say that if the government is satisfied that these laws are good enough to fit in the existing circumstances, then there is nothing wrong. There are many colonial-era laws that are retained by the government like Indian Penal Code, Famine Act, etc. If it believes that a colonial-era would help in containing the outbreak of the epidemic then it is for the government to decide on the relevance of this law.

At present, the rising cases of COVID-19 in India have led to nationwide lockdown creating a panic among people of the nation. The government can learn from the past and current scenarios, and make an effective legislation in the interest of public health security to fight against the outbreak of any dangerous disease. It shall lay down the administrative structure clearly by setting out the powers and responsibilities of the authorities at the local level right up to the national level. The law shall be comprehensive, strong and humane, also keeping in mind the liberty, privacy and dignity of the patients.

Supreme Court of India
Case Reviews

Makhan Singh Tarsikka vs State of Punjab (1964) AIR 381

The case related to illegal detention that occurred during the National Emergency of 1962 and questioned the scope of authority that the State has during the period of Emergency to infringe upon the Fundamental Rights of its citizens. 

Relevant Facts

A National Emergency was declared in India in 1962 as a result of the war being waged against China. The Defence of India Act and Defence of India Rules, 1962 were passed under which: –

  • A detention order for an indefinite period could be made by an officer not lower than rank of a District Magistrate.
  • There was no need to specify the grounds of detention to the detenu.
  • No opportunity was given to him to make representations before an authority for establishing his innocence. 
  • The power was delegated and review of the order was allowed to be done by the authority itself or any other specified authority.

The appellants were detained under 30(1) of Defence of India Rules. Petitions were filed in various high courts under section 491(1)(b) of the Code of Criminal Procedure, 1973 (1) for releasing the detinues. In the case of filed by a detenu, in 1963, the Allahabad High Court ordered release of the detinues. Different judgments were passed in support of as well as against the of detinues. 

Then a special constitutional bench was formed for hearing all the 26 criminal appeals in the matter. Mr. Setalvad appeared on the behalf of most of the appellants and Mr. C. K. Daphtary, the attorney general, on the opposite side.

Key Issues

1. What is the true scope and effect of the Presidential Order issued under Art. 359 (1)?
Sub issue: – what is the nature of the proceedings which are barred by the Presidential Order issued under Art. 359(1)?
2. Does the Presidential Order operate in respect of applications made by detenues under section 491(1) (b) of the CrPC?
3. Whether the impugned sections of the act and the relevant statutory rules are valid or not?

Analysis

An application was made on behalf of the detenu that he was illegally detained. The State pleaded that the detention was not illegal because it was authorized under Rule 30(1)(b) of Defence of India Rules. The detenu then argued that the provisions were invalid because they infringed the fundamental rights guaranteed to the citizens under Articles 14, 21 and 22 of the constitution. Hence the major issue which came up was the validity of the relevant statutory provisions and rules. The detinues tried to prove that the impugned sections in the Act and the Rules were ultra vires making the detention an illegal and improper function.

It was held Article 19 was suspended during the entire time period of emergency. But the related legislative and executive actions could be challenged once the emergency ceases to operate.

Distinction between Article 358 and 359 

The following distinction was made out between the two Articles: 

  • Article 359 says that the president can issue orders for suspending such rights of citizens through which they can move the court for the enforcement of their rights. The article does not expressly give the power to the president to suspend all the fundamental rights. Whereas Article 358 automatically suspends the fundamental rights. 
  • Also, the order under Article 359 maybe for a specific period or for the entire emergency but the order issued under Article 358 lasts the entire tenure. The presidential order under Article 359(1) may imposes a blanket ban against the right to legal action subject to two important conditions. First, the legal action must seek relief on the ground of contravention of the claimant’s fundamental rights specified in the order. Secondly, the period during which this ban is to operate can be for the entire period of the Proclamation or for a shorter period. 
  • The suspension of Article 19 under Article 358 is applicable to the entire country. On the other hand, Art. 359(1) may be confined to any part of the territory of India.
  • The Presidential Order bars those cases where a relief has to be granted to the citizen for an alleged infringement of any specified fundamental right which has been suspended.

Right To Move The Court

After the enactment of Section 491 in the CrPC, the right to obtain an order of a habeas corpus became a statutory right in India. It is clear that the content of the detenu’s right to challenge the legality of his detention which was available to him under Section 491(1)(b), has been enlarged by the fundamental rights guaranteed to the citizens by the constitution, and so, whenever a detenu relies upon his fundamental rights even in support of his petition made under s. 491(1)(b) he is really enforcing the said rights and therefore, the proceedings are barred under the presidential order. The prohibition contained in the said Article and the presidential order would similarly apply to proceedings under 226(1) & Art. 32(1).

Delegation By Legislature

Section 10 of the Restriction and Detention Ordinance of 1944 had a specific provision which stated that Section 491 of the Code shall not be practiced. All the courts could not issue any order under the said section in respect of any order made under the presidential ordinance. There was excessive delegation of power while the challenged laws were being framed. The authorities had not complied with the mandatory provisions during detention.  The argument was that in conferring power to make rules, the legislature had abdicated its essential legislative functions in favour of the Central Government. But if the legislature laid down its legislative policy in crystal clear terms and makes appropriate rules of delegation, then such delegation is permissible.

Validity of Presidential Order

It was argued that the President is only authorised to issue an order of general application, but the present order was confined to persons who had been deprived of their rights under the Defence of India Ordinance, 1962. But it was said that the power conferred was wide enough to make an order applicable to all the citizens and also in respect of any of the rights conferred by  Part III of the constitution. 

Colourable Legislation 

It was also argued from the appellant’s side that part of the act which contained the impugned sections was a colourable piece of legislation. Because the Preventive Detention Act, 1950 was already a statute, so it was not necessary to pass the impugned act. They argued that the sole object of the legislature was to deprive the citizens of their fundamental rights under Articles 21 and 22, it was a colourable piece of legislation. The state argued that Entry No. 9 in List I in the Seventh Schedule conferred jurisdiction to make laws for preventive detention for defence, foreign affairs, or the security of India and also in regard to persons under detention. There was no malafide intention of the legislature as it deemed the act to be necessarily passed. 

Major Precedents Cited

The King (At the Prosecution of Arthur Zadig) v. Halliday (2)

This foreign judgment related to the Defence of the Realm (Consolidation) Regulations Act, 1914 that was enacted in the UK during the time of World War I and suspended certain rights during national emergency. The case challenged this Act.  It was held that the legislature had taken an effective step. Such provisions preventing rights like habeus corpus had no relevance in dealing with an executive measure for protecting the state and preventing danger to the public. Hence the rules were valid and the rights were correctly suspended.

Liversidge v. Sir John Anderson (3)

The detenu argued that the fundamental rights were in question and that the legislation dealing such liberties must be interpreted supporting the subject and against the crown. But this contention was rejected.

Sree Mohan Chowdhury v. The Chief Commissioner, Union Territory of Tripura (4)

The petition was not entertained because it said that the ordinance, act and the rules were void for the reason that they contravened Articles 14, 21 & 22, which meant that the petitioner was enforcing his fundamental right. The court came up with the observation that such a petition was no more than “arguing in the circle”. If the presidential order prohibits from moving the Court for enforcing specified fundamental rights, then the citizens cannot urge that the act is void for contravening the said fundamental rights. The presidential order has been issued in order to preclude citizens from starting such cases and so, during the period of its operation, the challenge to the validity of the act cannot be entertained.

Bhatnagars and Co. Ltd. v. The Union of India (5)

The challenged act was held valid by the court because the legislative policy was broadly indicated in the preamble to the act, and detailed guidelines to the rule making authority were written. So, the contention that the act had delegated essential legislative function to the rule making authority was rejected.

Arguments made by the Appellants

  1. The fundamental rights must be given supreme importance. Such liberties have always been one of the pillars of democracy, the judges must uphold the true principles of liberty. 
  2. There can be no general principle for construing all the statutes. In all the scenarios, a reasonable interpretation must be relied upon. 
  3. Whenever the operation of Section 491 of CrPC was intended to be suspended, the legislature made a specific provision in that behalf. But in the present case there were no specific provisions.
  4. The only right of which a citizen can be deprived under Article 359(1) is the right to move the Supreme Court. So, a citizen has the right to ask for reliefs from the High Court under Article 226 because this right does not fall within the ambit of Article 359(1).
  5. The High Court has a discretionary power to issue the writs or orders under Article 226(1) and hence this is not a right of any citizen. So, it was argued that the proceedings under Article 226(1) do not come under the ambit of Article 359(1).
  6. The law of detention was passed by the legislature without any such powers given to it.
  7. The said order was invalid because it gave effect to the ordinance which was itself void.

Arguments made by the State

  1. A general approach for interpreting rules must be adopted. Article 359 allows the president to issue all such order for suspension of rights which are necessary at that time. So, no writs should be allowed.
  2. After understanding Article 226(1), it cannot be argued that a citizen does not have the right to move the High Court for invoking its jurisdiction under Article 226(1). It is a right conferred by the constitution.
  3. The Court cannot take suo motu action under Section 491(1)(b). Whereas a third person may apply, but he has to be authorized to act on behalf of the detenu.
  4. The detenus challenged the validity of the rules, so they are invoking their fundamental rights under the Constitution.

Judgment

The court upheld the executive actions exercised under blanket powers conferred on it under the Defence of India Act and Defence of India Rules. The majority in the Supreme Court refused to grant the writ of habeas corpus to the appellants. The court upheld the executive action even though the state found itself unable to justify violations of Articles 14, 21 and 22 of the Constitution. 

Minority views Of Justice K Subba Rao

  • Parliament made the law in clear contravention of Article 22 so it is void as it does not define the period of detention, does not allow representation, does not disclose the ground of detention etc.
  • Article 226 has impliedly given the right to move the court as it clearly lays down the procedure. Under the constitution every citizen has a right to move, for the enforcement of a fundamental right, the Supreme Court, the High Courts or any other court by any procedural writs.
  • The presidential order includes the right to move the court under article 226.
  • The presidential order is valid because the fact that only those, who have been deprived of their rights under the ordinance, cannot exercise their right to move the court does not confine the order to a class of persons.
  • The high courts can release detinues approaching under section 491.
  • He suggested three alternatives to the Parliament : make a valid law without infringing the fundamental rights excluding Art. 19 or amend s. 491 of the Code or both.

Conclusion

  • Section 491 was repealed.
  • The Supreme Court ruled that courts did not have the power to review orders of detention, even if they were ultra vires the legislation under which they had been imposed or on grounds of mala fides, since exercising such a review, and granting the writ of habeas corpus would amount to the enforcement of Article 21 which was suspended during the emergency.
  • Parliament can delegate law-making powers to the executive to a limited extent only.
  • The chief issue of presidential order issued under Article 359, laid down that the order had the effect of completely taking out the jurisdiction of the High Courts and the Supreme Court towards the protection of the Fundamental Rights that were mentioned in the order. Justice Subba Rao affirmed his minority view in holding that the order should be read restrictively, so that the jurisdiction under the Code of Criminal Procedure would survive even in the face of the presidential order. This approach of his testified, of course his concern for the individual liberty and the court’s duty to protect it.

(1) Power to issue directions of the nature of a habeas corpus.
(2) 1957 AC 260
(3) 1942 AC 206
(4) AIR 1964 SC 173
(5) (1957) SCR 701

Competition Law
Legislations

Major Changes in The Competition (Amendment) Bill, 2020

Amendments to regulatory structure

  • Establishment of a Governing Board.
  • Segregation of administrative and rule-making powers of the CCI from the decision-making powers; former powers to vest in the Governing Board.
  • The CCI to have the power to appoint the DG.

Procedural Amendments

  • The CCI may not inquire into conduct under Sections 3 or 4, if such conduct or a substantially similar conduct has been previously decided.
  • Provision for show cause notice and opportunity to be heard if CCI finds contravention where the DG did not recommend contravention.
  • The DG granted power to call experts to assist in investigations.
  • Leniency applicants permitted to withdraw applications.
  • “Leniency plus” regime introduced.
  • Penalty on individuals capped at 10% of average income.
  • Introduction of settlements and commitments.
  • Appeals to NCLAT only upon deposit of <= 25% of penalty imposed by the CCI.
  • The DG obligated to return materials provided by parties within 180 days.
  • The DG granted power to depose third parties not under investigation, with approval of the CCI.
  • Obligation on Governing Board to invite comments on regulations.
  • Obligation on the CCI to issue guidance on imposition of penalty.

Enforcement Amendments

  • ‘Enterprise’ to include all legal entities; explicit inclusion of economic activities.
  • Determination of relevant product market to account for supply side substitutability (current definition only mentions demand-side substitutability).
  • Scope of cartels (Section 3(3)(a)) broadened to include buyer cartels and hub and spoke arrangements.
  • Section 3(4) broadened to include all agreements which are not horizontal in nature.
  • Amendments in the explanation to Section 3(4) to bring clarity to the illustrative list of vertical agreements.
  • IPR exemption to apply to conduct under Section 4 (abuse of dominance) (currently, this exemption is limited to anticompetitive agreements).
  • Clarification of, and addition to, factors to be taken into account for determination of (i) appreciable adverse effect on competition (AAEC), (ii) relevant product market and (iii) relevant geographic market.
  • Meet the competitors defense under Section 4(2)(a)(i) widened to include both price and conditions.

Amendments to Merger Control

  • Ambit of ‘control’ and ‘group’ widened.
  • Deemed approval timeline reduced to 150 days (+30 days to respond to notice and clear defects).
  • CCI and Central Government given the power to specify new thresholds for notification and exemptions to notification.
  • Amendment to timelines applicable for inquiries into combinations by the CCI.
  • Modifications offered by parties permitted in instances of combinations resulting in AAEC.
  • Parties permitted to acquire shares by way of an open offer prior to obtaining CCI’s approval.
  • Legislative basis provided for green channel approval, de minimis notification, other exemptions; and removal of time limit within which notification must be filed
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