#Guidelines Archives - Prime Legal

26 Feb

The Counsels reached an amicable resolution to the issue at hand through mutual agreement among the parties in the Supreme Court.

Blog, blog #agreement, #amicablesettlement, #counsels, #Guidelines, #parties, #SupremeCourt

In the case of K. Balasubramani vs. The Tamil Nadu Government (Special Leave Petition(C)Nos.8251-8252/2022), the petitioners are tenants in various shops owned by the respondents, who are landlords. The respondents oversee the affairs of a Hindu temple under the Hindu Religious and Charitable Endowments Act of 1959.

Section 78 of the Act declares the tenants to be encroachers after the lease period has expired. The High Court affirmed the impugned action and directed the tenants to give the landlord peaceful, vacant possession of the premises, which each tenant has individually occupied, in accordance with the impugned judgement and order dated, which was passed in a batch of writ petitions filed by the tenants.

As a result, the counsels for both parties reached an amicable resolution to the issue at hand on mutually acceptable terms and on the basis of the instructions given to the learned counsel for each party.

The following are the agreed terms:

The authorities’ ejectment order, issued in accordance with the Act’s provisions, is upheld.
With respect to 19 tenants, the landlord may initiate legal proceedings for possession immediately. Despite the opportunities provided thus far, they have yet to pay rent/occupation charges.
Regarding the remaining 51 tenants: The eviction decree for each of these 51 tenants is upheld. They may, however, continue to use the area for an additional six months, as both parties have mutually agreed. The occupants of the demised premises have agreed, via their respective lawyers, to give the landlord peaceful and vacant possession of the properties by July 31, 2024. It is the revised rent from 2015 that these tenants are responsible for paying, not the rent from 2018. As such, they will continue to pay the rent at the rates changed in 2015 for as long as they are able to remain in the premises, in addition to paying off any outstanding arrears of rent, damages, or mesne profit, if any, within four months of today.

The court ruled that it is clear among the parties that the landlords intend to develop the property and provide better facilities to pilgrims. However, if the landlord ever develops by constructing shops, these 51 tenants will be given preferential treatment, subject to their participation in the allotment process and matching the highest bidder’s price.

With great endeavour both the parties reached an agreement to resolve this issue, bringing the protracted litigation to an end. Thus, the court disposed the petition.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by – Surya Venkata Sujith

Click here to read judgement

1 Feb

Supreme Court Issues New Guidelines and Principles for Environmental Bodies

Prime Legal

Blog, blog #CEC, #environment, #Guidelines, #law, #SupremeCourt

Case title: In Re: T.N. Godavarman Thirumulpad Vs Union Of India And Ors.

Case no.: Writ Petition (Civil) No. 202/1995

Decided on: 31.01.2024

Quorum: Hon’ble Justice B.R Gavai, Hon’ble Justice Pamidighantam Sri Narasimha, Hon’ble Justice Prashant Kumar Mishra.

FACTS OF THE CASE:

The Central Empowered Committee’s institutionalisation and reconstitution are the subject of the current writ petition. On May 9, 2002, this Court issued an order mandating the CEC’s formation. The CEC functioned as a body ad hoc.

In accordance with Section 3(3) of the Environment (Protection) Act of 1986, the Ministry of Environment, Forests, and Climate Change subsequently published a Notification on September 5, 2023, creating the CEC as an ongoing entity.

The court stated that the CEC would continue to operate in accordance with any orders and directives that it may issue from time to time, even as it approved the Notification.

In Part I of the ruling in this case, the court described the CEC’s establishment, purpose, and institutionalisation. The court endeavoured to formulate new principles in Part II for the efficient oversight of diverse entities, establishments, and authorities instituted to safeguard our woodlands, fauna, surroundings, and ecosystem.

COURT ANALYSIS AND JUDGMENT:

The court directed the CEC to take the necessary actions to advance institutional accountability, efficiency, and transparency in its operations:

Guidelines for its operations and internal meetings will be developed by the CEC. Operating procedures outlining the responsibilities of the CEC Secretary and its members must be developed by the CEC.
The CEC must create guidelines for public meetings, publish agendas on its website in advance, maintain meeting minutes, and establish rules for notice to parties.
The CEC will create guidelines for site visits and may conduct public hearings with affected parties.
The CEC will establish guidelines for setting time limits for site visits and report preparation, as well as the method of preparation.
The court ordered that these guidelines/regulations be easily accessible to all. They will be made available through the CEC’s official website.

In order to effectively oversee the numerous organisations, committees, and authorities set up to safeguard our forests, wildlife, ecosystem, and environment, the court issued some guidelines. The following institutional characteristics must be present in the organisations, authorities, regulators, and executive offices charged with environmental duties:

Clarify the composition, qualifications, tenure, appointment, and removal procedures for these authorities. Furthermore, appointments must be made on a regular basis to ensure continuity, and these bodies must be staffed with individuals who possess the necessary knowledge, technical expertise, and specialisation to function efficiently.
Authorities and bodies require adequate funding and clear financial transparency.
Clearly define the mandate and roles of each authority and body to avoid overlap and duplication of work. Establish a method for constructive coordination among institutions.
It is imperative for authorities and bodies to publish rules, regulations, and guidelines on their website, preferably in regional languages. In place of office memos, the authority or body may issue comprehensive guidelines in a standardised format and notify those in place of having the authority to create rules or regulations.
These bodies must establish detailed rules and regulations, as well as procedures for granting permissions, consents, and approvals.
The bodies and authorities are required to announce procedures for public hearings, the decision-making process, the right of appeal prescription, and deadlines.
By outlining the precise division of tasks and responsibilities among their officers, these bodies must specify the accountability mechanism.
The way these authorities operate needs to be frequently and methodically audited

The court concluded by saying that it is the responsibility of constitutional courts to guarantee that these environmental bodies have the resources and strong infrastructure necessary to carry out their duties. The constitutional courts will supervise these organisations’ operations, making sure that the ecology and environment are not only preserved but also improved.

Written by – Surya Venkata Sujith

Click here to read judgement

10 Dec

A way towards transparency : CCPA on dark patterns

Prime Legal

Blog #competitionlaw, #consumerprotectionact, #Darkpatterns, #Guidelines, #india, #law, News

Introduction :

Dark patterns are a consumer tactic that is used to manipulate the choices of the user. For example, when someone is purchasing from an online store, the price of the product is exclusive of the taxes and delivery charges. The price the consumer opted for is more than what was shown in the initial stage. Dark pattern is a blanket term in which the user has to deliberately make a choice to consume what they need. There are many circumstances where exploitation of the consumer takes place due to these underlying dark patterns. Examples include unnecessary pop-up boxes which automatically drive the consumer away from the product or service they require^[1].

The government of India has legislated the use of these patterns in the guidelines issued by the Consumer Protection Authority of India called the “Guidelines for Prevention and Regulation of Dark Patterns, 2023”

Other authorities on Dark Patterns :

In India, the major shield consumers have against any exploitation is the Consumer Protection Act, of 2019. Section 2(9)^[2] defines consumer rights and it includes the right to be protected against harmful marketing and, right to be informed about the nature of the goods or services. The act of tricking a consumer into buying something or not providing the whole truth initially can be labelled as a violation of consumer rights along with unfair trade practices dealt with under Section 47^[3] of the Act.

In the event of a violation of consumer rights, the Central Consumer Protection Authority issues guidelines to prevent unfair trade practices. Noncompliance with any orders passed by CCPA can lead to imprisonment of 6 months or a fine of up to Rs.20 lakhs or both^[4]. In addition, the CPA punishes creating deceptive or misleading advertisements that harm customers’ interests. Penalties include up to two years in prison and a fine of up to Rs 10 Lakh. Moreover, a maximum sentence of five years in prison and a maximum fine of Rs.50 lakh may be applied for repeat offences. These penalties can also be applied for each additional violation^[5].

The E-commerce Rules, 2020 is a regulatory framework which governs the goods and services bought online. It prohibits all sorts of unfair trade practices causing the dominant position of one particular company. Rule 4(3)^[6] provides that “ No e-commerce entity shall adopt any unfair trade practice, whether in the course of business on its platform or otherwise.”

On June 15, 2023 the Advertising Standards Council of India, a self-regulatory body released the guidelines called the “Guidelines for Online Deceptive Design Patterns in Advertising”. It aimed to prevent drip pricing, which is the concept of deceiving the consumers from the actual prices at the end. The practice of baits in online advertisements were also prohibited by the guidelines or providing alternative products instead of the original one. Alongside these prohibitions, the guidelines also focussed on preventing disguised advertisements from other sites in the product page.

Guidelines for Prevention and Regulation of Dark Patterns, 2023

The central consumer protection authority exercises of its powers under Section 18 of the Consumer Protection Act, 2019^[7] and issued the guidelines on November 30th, 2023. The guidelines define dark patterns as :

“ “Dark patterns” shall mean any practices or deceptive design patterns using UI/UX (user interface/user experience) interactions on any platform; designed to mislead or trick users into doing something they originally did not intend or want to do; by subverting or impairing the consumer autonomy, decision making or choice; amounting to misleading advertisement or unfair trade practice or violation of consumer rights;”^[8]

Under Section 5 of the guidelines, if any person or platform does something that is under Annexure I, will be said to have engaged in dark patterns. Annexure I of the guidelines contains the specified dark patterns which are strictly prohibited. There are in total 10 specified dark patterns which are prohibited.

Specified Dark Patterns :

The CCPA has outlined specific deceptive designs or illustrations as to what constitutes a dark pattern, they are^[9] :

False Urgency : It means falsely implying the product is running out of stock or creating a sense of urgency to mislead a user into buying the product. For example, A website showing only 2 are in stock while 30 others are looking to buy the same thing falsely is prohibited.
Basket sneaking : It means the inclusion of additional products which was not added by the user during checkout wherein the total amount payable has increased as a result. However, in the proviso it was mentioned that providing complementary samples is not basket sneaking.
Confirm Shaming : It means when the provider uses shame, guilt or fear in the user for not buying or using their product. For example, A platform that adds a charity in the basket using a phrase “charity is for rich, I don’t care.” would be deemed as a dark pattern.
Forced Action : It means when the user is forced to take some action which would require them to buy an additional product or sign up for a service. Eg: Forcing the user tp subscribe to a newsletter to purchase a product.
Subscription trap : This occurs when the user is unable to cancel their subscription or when the process is too lengthy or elaborate. It also includes forcing auto-debits without easy cancellation policy.
Interface interference : It means designing a feature wherein the user is manipulated into doing something they normally wouldn’t do if not for the feature. For example, An ‘X’ icon on the top-right corner of a pop-up screen leads to opening-up of another ad rather than closing it.
Bait and Switch : It refers to the practice of advertising a particular outcome based on the user’s action but deceptively serving an alternate outcome. Eg : A seller offers a quality product at a cheap price but when the consumer is about to pay/buy, the seller states that the product is no longer available and instead offers a similar looking product but more expensive.
Drip Pricing : Means when the prices are changed or different while checkout would be referred to as a dark pattern.
Disguised advertisement : It means a practice of posing, and masking advertisements as other types of content such as user-generated content or new articles or false advertisements.
Nagging : It refers to when a website causes a lot of interruptions while browsing such as requests, options, information which are unrelated to the purchase disrupting the intended transaction. Eg : Websites asking a user to download their app, again and again.

Conclusion

This guideline can act as a step towards transparency in the e-commerce market regime of India. However, it also requires the authorities to keenly ensure companies follow it and in the right circumstances curb these actions. The objective of the guidelines is to provide a better online experience to users and prevent them from exploitation. The same can only be brought into reality if there is proper enforcement.

Written by- Sanjana Ravichandran

^[1] Gargi Sarkar, Govt Issues List of 13 Dark Patterns Plauging Ecommerce Websites, INC42 (Dec 04, 2023) https://inc42.com/buzz/govt-issues-list-of-13-dark-patterns-plaguing-ecommerce-websites/

^[2] The Consumer protection Act, 2019 No. 36, Acts of Parliament, 2019 (India)

^[3] Sec 47, “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice. The Consumer protection Act, 2019 No. 36, Acts of Parliament, 2019 (India)

^[4] Advait Luthra, Ananya Mishra, India: ASCI Guidelines On Dark Patterns And The Way Forward, MONDAQ, (Aug 29, 2023) https://www.mondaq.com/india/dodd-frank-consumer-protection-act/1358384/asci-guidelines-on-dark-patterns-and-the-way-forward#:~:text=Dark%20patterns%20are%20basically%20user,for%20reviews%2C%20and%20so%20on.

^[5] The consumer Protection (E-commerce) Rules, 2020.

^[6] The consumer Protection (E-commerce) Rules, 2020.

^[7] Guidelines for Prevention and Regulation of Dark Patterns, 2023

^[8] Section 2(6) of Guidelines for Prevention and Regulation of Dark Patterns, 2023.

^[9] Annexure 1 of Guidelines for Prevention and Regulation of Dark Patterns, 2023.

22 Aug

Delhi High Court Sets Guidelines on Quashing FIRs and Responsible Mediation Practices

Prime Legal

Blog #delhi, #delhicourt, #delhihighcourt, #FIR, #Guidelines, #Police

Title: Abhishek & Ors. v. The State NCT of Delhi & Ors.

Decided on: 16th August, 2023

+ CRL.M.C. 5720/2023

CORAM: HON’BLE MS. JUSTICE SWARANA KANTASHARMA

Introduction

In a recent case, the Delhi High Court, while addressing a petition filed under Section 482 of the CrPC seeking the quashing of an FIR, highlighted the importance of responsible mediation practices in resolving serious offenses. The court observed that non-compoundable offenses cannot be resolved solely through monetary agreements and emphasized the need for upholding lawful and principled mediation practices.

Facts

The petitioners sought the quashing of an FIR filed against them for alleged offenses under Sections 308/34 of the IPC. The parties had settled the matter amicably and signed a memorandum of understanding (MoU) for a monetary settlement of Rs. 40,000. It was revealed that Rs. 30,000 in cash was intended for the purpose of quashing the FIR.

Analysis

The court examined the principles of law related to quashing FIRs based on settlements as laid down in cases such as Gian Singh v. State of Punjab, Narinder Singh v. State of Punjab, and Parbhatbhai Aahir v. State of Gujarat. It differentiated between compounding offenses under Section 320 and quashing under Section 482 of the CrPC, emphasizing that the latter is discretionary and aimed at preventing process abuse while ensuring justice.

The court scrutinized the mediated settlement agreement, noting that the mediator had exceeded their jurisdiction by attempting to compound a non-compoundable offense. The agreement’s language suggested that serious offenses could be resolved through payments, which misled the parties involved. The court highlighted that quashing non-compoundable offenses is a discretionary decision that must adhere to established principles.

Held

The court held that serious offenses cannot be settled through monetary agreements alone. It stressed that the mediator’s role is not to compound non-compoundable offenses but to facilitate lawful and responsible mediation practices. While the court decided to quash the FIR based on unique circumstances, it imposed costs on the petitioners for misinterpreting the agreement.

The court laid down guidelines for mediators, emphasizing the importance of clarity in mediated settlement agreements. It directed mediators to specify that quashing of FIRs for non-compoundable offenses is at the court’s discretion and depends on the facts and circumstances of the case. The court urged mediators to ensure that parties understand the legal consequences and enforceability of agreements.

Conclusion

The Delhi High Court’s ruling underscores the significance of responsible mediation practices and the proper interpretation of mediated settlement agreements. The judgment establishes that serious offenses cannot be resolved through monetary agreements and encourages mediators to uphold lawful principles while facilitating settlements.

Written by- Ankit Kaushik

Clicke here to view judgement