Relevant paragraphs: 6. The constitution bench of the Supreme Court in SARDAR AMRJIT SING KALARA VS. PRAMOD GUPTA, (2003) 3 SCC 272 has held that procedural laws have always been viewed as handmaid of justice and not to hamper the cause of justice. It has further been held that technical objection which tend to be stumbling blocks to defeat and delay substantial and effective justice should be viewed strictly for being discouraged except when mandate of law inevitably necessitates it. (ALSO SEE: SAMBHAJI VS. GANGABAI, (2008) 17 SCC 117, RAJENDRA PRASAD GUPTA VS. PRAKASH CHANDRA MISHRA (2011) 11 SCALE 469 and RAMJI GUPTA AND ORS. VS. GOPI KRISHAN AGRAWAL (D) AND ORS. AIR 2013 SC 3099). In STATE OF BIHAR AND ORS. VS. BIHAR RAJYA BHOOMI VIKAS BANK SAMITHI, (2018) 9 SCC 472, it has been held that if infraction of procedural provision does not provide for any consequences, such a provision has to be construed as directory.
Compiled by S. Basavaraj and Kriti Taggarse Daksha Legal
Facebook is a social networking platform launched in February 4, 2004. As of the year 2020 more than 3 billion people use Facebook and Facebook owned services and is valued at nearly 800 billion Dollars and profited more than 15 billion dollars in the year 2019. Facebook is now under the radar of the govt over misconduct of antitrust policy.
This is not the first time Facebook is under scrutiny. Other big Tech giants like Apple, Google Amazon and Facebook took a brutal political lashing on July 2020 as the Democrats and Republicans of the United States of America confronted the CEO’s for pushing their market power to crush the competitors in the market space. This hearing took place for over six hours and the result of the hearing was that it showed that the tech sector had become too big and powerful, threatening rivals to competitors and to consumers and, in some cases, even democracy itself.
Amazon, meanwhile, faced scrutiny over allegations that it may have misled the consumer’s and its competitors. The e-commerce giant previously told lawmakers that it does not tap data from third-party sellers to boost sales of its own products. But Democratic representative in the hearing brought up the public reports that indicated Amazon did do so by pushing sales of its amazon basics products instead of other competitor’s products. And there was evidence that amazon did not acknowledge small book writers to promote their book sales through amazon and they only promoted giant book writers and vendors.
Example: Amazon manufactures its own cables (Lightening, Micro USB, Type C), its own battery cell for remotes, keyboard and mouses and they do push these in their website as a price reduction program and on the home page boarder content leaving out competitors to look for some revenue for amazon.
Apple being an iconic famous consumer electronics brand and a luxury brand was under scrutiny as a study by Analysis group showed that the 30 percent commission it charges many apps for the right to appear on iPhones, iPad and MacBook is close to what other platforms charge for distribution. The study left out that Apple helped popularize that 30 percent standard across the industry. The study also reviewed that Apple used to ignore app approval requests from other developers messaging sharing platforms (Other than Facebook owned apps) to promote their own famous messaging platform called the iMessage.
Example: Apple charge 30 percent commission to other app developers upon approval but charges less than 30 percentage for amazon owned entertainment streaming service called Amazon Prime Video.
Google was also under scrutiny for dominating search engines and SEO. Google is also the default web browser, mail and maps on any consumer electronic products be it Apple, Google Pixel, Google Chromebook, Samsung and other Chinese owned brands of smartphones except Huawei which is out of the googles contract for violating terms and condition to breaching of data of its consumers.
Example: Google dominated search engines and never gave a chance to other search engines like bingo and duck duck go. This domination has made people addicted and to prefer google services and that it would be scary to imagine a world without these services.
Facebook was in heavy scrutiny as it has also dominated social network platform by not giving anyone a fair competition in the market. It is undeniable that Facebook was the reason why Donald Trump won the election as Facebook pushed campaign of Donald trump based on the analysis of the consumer daily video watching behaviour and also political behaviour on Facebook.
This time December 2020, Facebook alone is once again under the scrutiny by a lawsuit filed on the company by FTC and the US Government for creating a monopoly environment and succeeded in doing so for nearly a decade. The reason for this is because Facebook nearly for a decade has been following ‘Buy or Bury’ approach to potential competitors in the market space.
Facebook (Mark Zuckerberg) decided that in order to have full control over the market the best way to eliminate any competition is to follow the buy approach.
In the year 2012 Instagram a social network had picked up a positive growth in the market. Seeing this, Facebook saw this a threat to them as Instagram would be the reason for Facebook to go bankrupt. To eliminate the competition from Instagram, Facebook decided to buy Instagram by offering a good deal of money i.e. 1 billion dollars to them and this resulted in a monopoly action as they never gave a chance to any rivals to threaten them openly in the business market.
In 2014, the company WhatsApp being a popular social messaging platform also decided to gain a substantial positive growth in the market. Facebook saw this as a threat to them and they decided to follow the same action or process they followed in 2012 by buying them too. Finally, in the same year 2014 Facebook also purchased WhatsApp for a good deal of money and eliminated any competition from them, which resulted in monopoly action. FTC (Federal Trade Commission) focuses on these two successful buying of the company which started a huge wave of monopoly for Facebook.
The legal filings cite internal messages from Facebook CEO Mark Zuckerberg, such as one 2008 email that said it was “better to buy than compete”.
It’s quite hard sometimes to comprehend just how massive Facebook is. Facebook, Facebook Messenger, WhatsApp and Instagram all owned by Facebook all have more than a billion monthly users. Facebook and WhatsApp alone have more than two billion users a day.
Federal Trade Commission (FTC) is arguing is that there’s a reason why Facebook came to dominate this highly lucrative sector because it acquired the competition illegally.
Both of those acquisitions were previously looked by the FTC and were approved.
Facebook’s argument that they bought these companies when they were much smaller and there was nothing to do about their success.
In other words, “don’t punish Facebook for building strong American companies” CEO of Facebook Mark Zuckerberg
Whether Instagram and WhatsApp will be broken off from Facebook will now be decided in the courts and these antitrust lawsuits will take more time.
Nithin Basavaraj, student of MBA, Greenwich University. UK
Relevant paragraphs: It is …the case of the complainant in the trial Court that the petitioner herein in her cross- examination in the complaint filed by her under D.V. Act, made a statement that her father through her friends secured liquor for the consumption of the complainant, the present respondent. She admitted that Ex.P.68 is with respect to purchase made in a Military Canteen.
The point to be considered which is of most importance in the matter is what made the petitioner to make that statement. Admittedly, the said statement which is alleged to be defamatory has not been made by the petitioner on her own. Nowhere in the examination-in-chief she has referred that her father-in-law is in the habit of consuming liquor. The very father-in-law as the complainant in the trial Court himself in his complaint has stated that no allegation against him was made in the complaint filed by his daughter-in-law alleging domestic violence….the said alleged statement of defamation was elicited from the complainant in the said complaint under D.V. Act only in her cross-examination. That means, it was not a statement voluntarily made by her but she was put with some questions, for which, as an answer she has made that statement.
It cannot be said that it was a statement made voluntarily and willfully by the witness with an intention to defame the reputation of the present respondent, as such, in order to avoid abuse of the process of law in the trial Court, interference of this Court under Section 482 Cr.P.C. is warranted. .Proceedings against the petitioner quashed.
Compiled by S. Basavaraj and Kriti Taggarse Daksha Legal.
Relevant para: CONCLUSION 62. Therefore, in fine, we hold that the petitioner was disqualified from contesting the elections in terms of Section 8(3) of the Act. In such circumstances, she could not have maintained an election petition as “a candidate at such election” in terms of Section 81(1). Therefore, the High Court was right in not venturing into an exercise in futility, by taking up the election petition for trial.
Relevant paragraph : 36. The observations of the Hon’ble Apex Court and the various High Courts in the long line of rulings narrated supra, obviates any detail discussion with regard to the maintainability of a writ petition against the Bar Association invoking the provisions of Article 226 of the Constitution of India. That apart, as detailed supra, some of the obligation, the 3rd respondent has cast upon itself, bears a public character. The Advocates are not mere arbiters but officers of the court who assist the Court in the running of the justice delivery system and it is such officers of the court who constitute the 3rd respondent Society. That the constituents of the 3rd respondent Society are answerable to the Court and to the 1st respondent with regard to their conduct in the discharge of their professional duties. Both the 1st respondent and the Court can by no stretch of imagination be described as private entities. That apart, if the objects of the 3rd respondent Society are juxtaposed with the observations of the Hon’ble Apex Court in Dwarkanath Vs. Income Tax Officer 1965 (3) SCR 536 and Supreme Court Bar Association and othersvs.B.D.Kaushik(2011)13SCC774 case, it is apparent that the 3rd respondent discharges obligations of a public character. Hence, the writ petition invoking the provisions of Article 226 of the Constitution of India praying for a relief as against the 3rd respondent is required to be held as maintainable.
Relevant para: 43. The upshot of the above discussion is that defective verification is a curable defect. An election petition cannot be thrown out in limine, on the ground that the verification is defective.
Relevant paragraphs: 8 &9. The State, when it enters into a contract, must do so fairly without discrimination, arbitrariness and unreasonableness. Any act of the State should withstand the test of judicial review under Article 14 of the Constitution. This power of review is normally exercised by the constitutional courts to rein any unbridled executive functioning. In a democratic State, rule of law is of paramount importance and the Courts are required to act as guardians of rule of law. Arbitrariness and unfairness in a contract defies the basics of rule of law. The respondent No.1 is the beneficiary of the work done by the petitioner and it is clear from the facts and circumstances of the case that the instrumentalities of respondent No.1 have acted in a arbitrary and unfair manner after the work is completed.
10. The Hon’ble Apex Court in the case of ABL Internatiional Ltd. and Ors. –vs- Export Credit Guarantee Corporation of India Ltd. and Ors. 1has held as under:
“23. It is clear from the above observations of this Court, once State or an instrumentality of State is a party to the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India. .”
11. In the very same judgment, the Hon’ble Apex Court considered the question of maintainability of a writ petition against a State for enforcement of right arising out of a contractual obligation. The Hon’ble Apex Court at para-29 of the aforesaid judgment has held as under:
“29. From the above discussion of ours, following legal principles emerge as to the maintainability of a writ petition:-
In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.
Merely because some disputed questions of facts arise for consideration, same cannot be a ground torefuse to entertain a writ petition in all cases as a matter of rule.
A writ petition involving a consequential relief of monetary claim is also maintainable.”
12. The Apex Court in the case of KUMARI SHRILEKHA VIDYARTHI ETC., VS STATE OF U.P. AND OTHERS – AIR 1991 SC 537, has held that State action in contractual matter can be reviewed under Article 14 of the Constitution. In paragraphs 22, 23, 24, 28 & 29 of the said decision, the Apex Court has held as under:
“22. There is an obvious difference in the contracts between private parties and contracts to which the State is a party, Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes failing within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. However, to the extent, challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article 14. To this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions.
23. Thus, in a case like the present, if it is shown that the impugned State action is arbitrary and, therefore, violative of Article 14 of the Constitution, there can be no impediment in striking down the impugned act irrespective of the question whether an additional right, contractual or statutory, if any, is also available to the aggrieved persons.
27. The State cannot be attributed the split personality of Dr. Jekyll and Mr. Hyde in the contractual field so as to impress on it all the characteristics of the State at the threshold while making a contract requiring it to fulfil the obligation of Article 14 of the Constitution and thereafter permitting it to cast off its garb of State to adorn the new robe of a private body during the subsistence of the contract enabling it to act arbitrarily subject only to the contractual obligations and remedies flowing from it. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters. There is a basic difference between the acts of the State which must invariably be in public interest and those of a private individual, engaged in similar activities, being primarily for personal gain, which may or may not promote public interest. Viewed in this manner, in which we find no conceptual difficulty or anachronism, we find no reason why the requirement of Article 14 should not extend even in the sphere of contractual matters for regulating the conduct of the State activity.
28. Even assuming that it is necessary to import the concept of presence of some public element in a State action to attract Article 14 and permit judicial review, we have no hesitation in saying that the ultimate impact of all actions of the State or a public body being undoubtedly on public interest, the requisite public element for this purpose is present also in contractual matters. We, therefore, find it difficult and unrealistic to exclude the State actions in contractual matters, after the contract has been made, from the purview of judicial review to test its validity on the anvil of Article 14.
29. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional ”
Relevant paragraphs: 2. As far as a writ of mandamus is concerned, the well settled law has been reiterated by the Apex Court in the case of Saraswati Industrial Syndicate Ltd. and others –vs- Union of India. (1974) 2 SCC 630 Paragraphs-24 and 25 of the said judgment read thus:
“24. As the appeals fail on merits we need not discuss the technical difficulty which an application for a writ of certiorari would encounter when no quasi-judicial proceeding was before the High Court. The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless,the well recognized rule that no writ ororder in the nature of a mandamus wouldissue when there is no failure to perform amandatory duty applies in this country aswell. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Halsbury’s Laws of England (3rd Edn.), Vol.13, p: 106):“As a general rule the order willnot be granted unless the partycomplained of has known what it washe was required to do, so that he hadthe means of considering whether ornot he should comply, and it must beshown by evidence that there was adistinct demand of that which theparty seeking the mandamus desiresto enforce, and that that demand wasmet by a refusal.”
25. In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution. These appeals must be and are, hereby, dismissed but in the circumstances of the case we make no order as to costs.”
3. As far as a writ of mandamus is concerned, a High Court can issue such a writ enjoining the respondents to perform their statutory duty. However, the condition precedent for invoking the jurisdiction of this Court for seeking a writ of mandamus is that the petitioner must demand justice and seek compliance of statutory obligations of the respondents.
4. When the question of making such a demand arises, the same has to be made to the authority, which is under the legal obligation to do or not to do a particular act. For example, if a grievance of writ petitioner is about the failure of a municipal corporation to take action of demolition of an illegal construction, naturally the demand in writing has to be made to the competent authority under the Karnataka Municipal Corporations Act, 1976, which is empowered to take action of demolition. If the representation is made to an authority which is not competent to take action as demanded in the representation, the said authority is not under an obligation to act as per the representation.
5 & 6. The well settled rule is that ordinarily while filing legal proceedings, if more efficacious relief can be sought by a litigant, he must seek that relief. The representation has to be addressed only to the authority which is under a legal obligation to take action.
Therefore, this Court deems it proper to issue the following interim directions:
i) The State Government shall place on record the details about the number of First Information Reports registered for the offences punishable under the Manual Scavengers Act, the details of the cases in which charge sheets were filed, the details of the cases which are pending and the details of the cases which resulted into conviction. The figures of cases which resulted into acquittal shall be also placed on record;
ii) The State Government shall place on record the compliance of the decisions taken in the meeting held on 23rd February 2018 under the Chairmanship of the then Additional Chief Secretary;
iii) The State Government shall produce necessary material to show that the District Level Survey Committees as contemplated by sub-clause (c) of Rule 2 of the Manual Scavengers Rules have been duly constituted. The State Government shall also call for the data from all the Districts for ascertaining whether the District Level Survey Committees have conducted surveys of manual scavengers and whether the Committees have published the final list of Manual Scavengers of the respective Districts;
iv) The State Government shall place on record the necessary details as regards the constitution of the State Level Survey Committees as well as the details regarding the number of meetings of the State Level Survey Committee has held and the gist of functions so far discharged by the State level Committee;
v) The State Government shall place on record comprehensive data about the survey of insanitary latrines throughout the State and the details about the conversion/demolition of insanitary latrines;
vi) The State Government shall also place on record whether any notification has been issued in exercise of power conferred by the second proviso of subsection (2) of Section 5 of the Manual Scavengers Act;
vii) The State Government shall place on record the details relating to final publication of the District-wise final lists of Manual Scavengers and the publication of State level final list of Manual Scavengers;
viii) The State Government shall call for reports from the authorities/authorized officers specified for implementing the provisions of the Manual Scavengers Act under Section 18. The State Government shall ensure that the directions are issued to authorized officers/authorities to comply with the requirements of Section 19;
ix) The State Government shall place on record the details about number of meetings held at the Districts, Sub-Divisional and the State level Vigilance Committees;
x) The State Government shall issue directions to all the Local Authorities to implement the provisions of the Manual Scavengers Act and the Rules by specifically referring to the obligations and duties under various provisions. The compliance by the Local Authorities shall be monitored regularly by the State Level Monitoring Committee;
xi) The State Government shall direct all the Local Authorities to comply with the obligations under subsections (2) and (3) of Section 4 and to immediately ascertain the requirement of number of sanitary community latrines within their respective jurisdictions and thereafter, make construction of such latrines. The data of such community sanitary latrines constructed in the State shall be placed on record;
xii) The State Government shall immediately initiate awareness campaign on a large scale for elimination of the practice of open defecation and ensure that all Local Authorities comply with their obligation of eliminating the practice of open defecation in their jurisdiction. The State Government shall take help of NGOs and the Karnataka State Legal Services Authority to conduct the campaigns in rural areas;
xiii) The State Government shall place on record the steps taken for rehabilitation of manual scavengers as provided in Section 13 by stating whether there are any Schemes of Central and State Government for rehabilitation of the manual scavengers as contemplated by Section 13;
xiv) The Union of India shall place on record the copies of the notifications, if any, issued in exercise of the powers under explanation (b) to clause (g) of Section 2 of the Manual Scavengers Act;
xv) The State Government shall place on record all the details regarding the compliance with the directions contained in paragraph 23.3 of the decision of the Apex Court in the case of Safai Karamchari Andolan (Supra);
xvi) The Karnataka High Court Legal Services Committee and all the District Legal Services Authorities will be entitled to convene meetings of all the stakeholders for assisting them for making compliance with the directions issued by this Court and for implementation of the Manual Scavengers Act and the Rules framed thereunder; and
xvii) Compliance affidavits shall be filed by the State Government and all concerned on or before 30th January 2021.
Justice Budhihal R.B. is appointed as Chairman, Karnataka Administrative Tribunal.
Justice Budihal R.B: Born on 1-10-1956. Enrolled as an Advocate on 07-09-1983 and Practiced on Civil and Criminal side at Bagalkot and Bijapur. Appointed as District and Sessions Judge during May, 1996. Served as an Additional District and Sessions Judge at Bangalore and Gulbarga and as Principal District and Sessions Judge at Gadag, City Civil Court at Bangalore and Belgaum. Also served as the Registrar (Judicial), Registrar (Vigilance), Secretary to Hon’ble Chief Justice and Registrar General. Appointed as Additional Judge of the High Court of Karnataka on 24-10-2013 and Permanent Judge on 04.03.2016.
Justice Budhihal retired on 30.9.2018. The President of India appointed him as Judicial Member of Karnataka State Administrative Tribunal by Order No. A-11014/8/2018-AT, dated 12.06.2019. On 14.06.2019 his Lordship assumed charge as Judicial Member of Karnataka State Administrative Tribunal.
Daksha Legal 