Photograph of a very Rare Document relating to Bhagat Singh’s Trial and Appeal (1929 Assembly Case)

 

(Courtesy: National Archives of India and sent to me by my beloved Uncle, Shri Anil Verma)

The abovementioned photograph of the Document/Letter pertains to the Appeal preferred by Shaheed Bhagat Singh and Batukeshwar Dutt against their conviction in the 1929 Assembly Case. The said Letter/Document was written by the Deputy Registrar, High Court of Judicature at Lahore (Now Pakistan) to the Sessions Judge, Delhi, on 14.01.1930 which was received on 16.01.1930. It was written with reference to transmission of the copies of the Judgment of the High Court and the return of the records of the Lower Court.

 

The said Letter/Document tells us a lot of intricate details about the Judicial Process that Bhagat Singh went through. All of us know the 1929 Assembly Incident and the purpose behind it. Bhagat Singh and Batukeshwar Dutt not only smoke bombed but also threw Political Handouts at the Delhi Central Legislative Assembly. Their aim behind the said bombing was to protest against the passage of two draconian draft laws/bills, namely, the Public Safety Bill and the Trade Dispute Bill. They immediately surrendered to the Police and were arrested.

 

The Trial against them commenced and they were subsequently convicted and sentenced to transportation for life by the Sessions Judge, Delhi, Mr. Middleton, on 12.06.1929. Later on, they had preferred an Appeal before the High Court of Judicature at Lahore. It would be interesting to know that the High Court of Judicature at Lahore, which was a Letters Patent Court, exercised jurisdiction over the then provinces of the Punjab and Delhi.

 

By perusal of the captioned Letter/Document, following details regarding the Appeal preferred by Bhagat Singh and Batukeshwar Dutt could be gathered: -

1. Appeal Number – Case No. 748 of 1929.

2. Charges – Section 307 of the Indian Penal Code and Section 3 of the Explosive Substances Act, 1903.

 

It is again interesting to note that the above-stated Appeal was dismissed on 13.01.1930 and the Letter/Document provided hereinabove is dated as 14.01.1930, that is, exactly a day after the dismissal of the Appeal. It is most likely in relation to a routine process of the Court to return the records to the Lower Court after an Appeal has been decided.

 

What is also pertinent to note are the closing notes of the said Letter/Document. It ended with “I have the honour to be Sir, Your most Obedient Servant, Deputy Registrar.” Such language clearly signifies the mentality of servitude and sycophancy that was ingrained in the Britishers that wrongly ruled the India. It was most unjust that foreigners ruled India for so long and martyrs like Bhagat Singh had to sacrifice their lives for the independence of our beloved country, India.

 

The rare photograph of the said Letter/Document was sent to me by my beloved Uncle, Shri Anil Verma, who is himself a Judge (presently posted as Principal Registrar, Hon’ble High Court of Madhya Pradesh, Seat at Indore) and a well-known authority on Indian Freedom Fighters. My special thanks to him as well as the National Archives of India without whose efforts, it would not have been possible to preserve such precious and rare documents.

Admissibility of Emails as Evidence in India

It is an interesting question that how Emails could be made admissible as evidence in India. There are a lot of conflicting judgments in this respect. However, recently on 14.07.2020, the Hon’ble Supreme Court of India pronounced a Judgment, namely, Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Others, reported as 2020 OnLine SC 571. In the said Judgment, a bare perusal of its Para 80 would be profitable: -

 

“80. The reference is thus answered by stating that:

 

(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.

 

(b) The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). The last sentence in Anvar P.V. (supra) which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” is thus clarified; it is to be read without the words “under Section 62 of the Evidence Act…”, With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.

 

(c) The general directions issued in paragraph 62 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.

 

(d) Appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice's Conference in April, 2016.”

 

The highlighted portion of the abovementioned excerpt contemplates two conditions: -

1. No Certificate under S. 65-B (4) of the Evidence Act is required when the originator/author of the document steps into the witness box and proves that the “concerned device, on which the original information is first stored, is owned and/or operated by him.” This is certainly not an uphill task and any originator/author can easily do so by recording his/her testimony.

 

2. “In cases where the ‘computer’ happens to be a part of a ‘computer system’ or ‘computer network’ and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65B(4).”

 

Now, let us for a moment peruse Section 65-B (1) which states as under: -

 

“(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.”

 

Thus, all the above-mentioned electronic media/record is deemed to be a document for the purposes of Section 65-B (1). Let us again hop on to a different provision of law, namely, Section 88-A of the Indian Evidence Act, 1872. It is stated as under: -

 

“88. Presumption as to electronic messages.—The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.

Explanation —For the purposes of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000.”

 

According to S. 88, the presumption is in favour of the Originator of the Electronic Message/Email/SMS that the said message corresponds with the message as was typed or fed into his computer/device for the purposes of transmission. S. 88 ends with a caveat that the Courts shall not make any presumption as to the person by whom such message was sent. Hence, from the point of view of evidentiary value of such electronic messages/Emails, following are the important aspects: -

 

1. Since the presumption that the electronic messages/Emails corresponds with what was typed in the computer/device, is in favour of the Originator, therefore, to prove otherwise the burden of proof will be on the person alleging that said message did not originate from the concerned computer/device.

 

2. Since the Courts shall not make any presumption as to the person by whom such message was sent, the onus to prove the same rests on the person who claims to be the Originator of such message. In this regard, compliance of Section 65-B of the Indian Evidence Act, 1872 would be useful for the person. He could submit an Affidavit under Section 65-B (4) to signify that he is the Originator and the manner in which such Electronic Message was composed.

 

In my humble opinion, if such formalities are completed, the same should suffice for the purposes for proving the Email/Electronic Message before the Court. Further,even though considerable legislative vacuum with respect to the law relating to the evidentiary value of Electronic Message and Devices, the Judgment passed in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Others, is a much needed one and at least, it provides some respite to the people who are not in a position to produce the Certificate under Section 65-B from the Email Providers or other such entities. 

Supreme Court on Rental Deeds Where Duration of Tenancy is Absent or not Specified

 

In a recent judicial pronouncement, the Hon’ble Supreme Court of India laid down a very interesting proposition in relation to the landlord-tenant disputes. A peculiar problem that is faced by many landlords in India is that they are not able to either evict the tenants or increase the property-rent because of the fact that their ancestors had entered into a Rental Agreement with the tenant that did not specify any time-limit and taking shelter of such Rental Agreement, the tenants have been able to occupy such properties for decades by paying paltry sums of money.

 

In the case of Siri Chand (Deceased) Thr. Lrs. v. Surinder Singh, the Supreme Court discussed Section 17 of the Registration Act, 1908 (in short, “Registration Act”), that provides for the document of which the registration is compulsory. According to S. 17 (1) (d) of the Registration Act, it shall be mandatory to get registered the documents that provide for “leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent.”

 

It was observed by the Court that where a Rental Deed does not prescribe any period for which it is executed, then the text of such Rental Deed needs to be looked into to ascertain the true nature of the Lease Deed/Rental Deed. The Court also took recourse to the rule of construction embedded in Section 106 of the Transfer of Property Act, 1882, which provides that in case the duration of lease is absent from the contract, except in case of agricultural of manufacturing purposes, such Rental Lease shall be deemed to be a lease from month to month basis. To fortify this observation, the Court also cited the case of Ram Kumar Das v. Jagdish Chandra Deo, Dhabal Deb, AIR 1952 SC 23, wherein it was observed as under: -

 

“....... The rule of construction embodied in this section applies not only to express leases of uncertain duration but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances. It is conceded that in the case before us the tenancy was not for manufacturing or agricultural purposes. The object was to enable the lessee to build structures upon the land. In these circumstances, it could be regarded as a tenancy from month to month, unless there was a contract to the contrary.

......

It has no doubt been recognised in several cases that the mode in which a rent is expressed to be payable affords a presumption that the tenancy is of a character corresponding thereto. Consequently, when the rent reserved is an annual rent, the presumption would arise that the tenancy was an annual tenancy unless there is something to rebut the presumption.”

 

Relying on the above-stated excerpt, the Court went on to hold that where according to the terms of the Rental Deed, the mode of payment of rent is monthly in nature, the presumption shall be that the same is a monthly tenancy. It further stated that such a Rental Deed does not confer any right to tenant to continue in the tenancy for a period of more than one year and it cannot be said that the tenancy was created for a period of more than one year. Even if there is a promise to increase rent year by year, such promise is contingent on tenancy being continued beyond one year and the same cannot make the tenancy year to year or tenancy for which no period was specified.

 

I think these observations by the Court should provide a sigh of relief to the Landlords who are not able to evict tenants because of legal impediments relating to the duration of Rental Deeds/Leases. Now, the Supreme Court has made it clear that in case, the payment of rent is monthly and if such fact is codified in the Rental Deed, then such tenancy would be monthly in nature and shall not be for a period of more than one year.

 

No Adverse Order against the Accused in Criminal Revision without Issuance of Notice

 

Introduction

 

Whether a Court could decide a Criminal Revision to the detriment of an Accused without even issuing a Notice to him, was the question decided by the Hon’ble Supreme Court of India in a recent judgment.

 

In the said case, Subhash Sahebrao Deshmukh v. Satish Atmaram Talekar & Others, a Complaint under 156 (3) of the Code of Criminal Procedure (in short, “CrPC”) alleging commission of offences under S. 420, 467, 468, 120B, 114 & 34 of the Indian Penal Code (IPC), was filed against an accused which was dismissed by the Magistrate. Thereafter, such rejection was challenged before the Court of Additional Sessions Judge by way of filing a Criminal Revision who allowed the said Criminal Revision without even issuing Notice or giving an opportunity to be heard, in that Criminal Revision. Such Order passed by the Court of Additional Sessions Judge was also upheld by the High Court. Thus, the matter came up before the Supreme Court where the Accused was the Appellant.

 

Reasoning of the Court

 

The Hon’ble Supreme Court after considering the arguments advanced by all the parties came to the conclusion that the restoration of the Complaint by the Additional Sessions Judge was undoubtedly to the prejudice of the Appellant.

 

To fortify this observation, the Hon’ble Supreme Court relied upon the observations made in Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, 2012 (10) SCC 517 wherein it was held as under: -

 

“In other words, where the complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the Revisional Court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed the crime have, however, no right to participate in the proceedings nor are they entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process.”

 

Thus, the Hon’ble Supreme Court set aside the Orders passed by the High Court and the Court of Additional Sessions Judge and directed the Court of Additional Sessions Judge to hear matter afresh.

 

Concluding Remarks

 

I totally agree with the reasoning adopted by the Court as without an opportunity of hearing to the accused, it would be a travesty of justice to pass any Order against him. Any proceedings by way of which criminal action could be initiated against any person must not be held without giving a chance to the accused to present his case. This becomes extremely important in light of existence of a statutory provision in this regard i.e. Section 401 (2) of the CrPC which states as under: -

 

“(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.”

 

Further, in order to balance the rights of the accused vis-a-vis the Complainant, Manharibhai (supra) also held that when the Revision Court sends the matter back to the Magistrate Court for fresh consideration then the accused persons will have no right to participate in the proceedings or hearing until the consideration of the matter by the Magistrate for issuance of process.

Stamp duty implication on online submission of documents with Registrar of Companies

Stamping of documents under stamp acts of India

Pursuant to the Indian Stamp Act, 1899 (“Stamp Act”), the state and the central government have powers to impose stamp duty in accordance with the Act on the respective instruments as per the subject matters listed in seventh schedule (Article 246 - Subject-matter of laws made by Parliament and by the Legislatures of States) of the Constitution of India.

The Stamp Act along with respective state stamp acts require an instrument (eg. a contract or a deed or a declaration) to be stamped per schedule(s) of the Act. Per Section 35 of the Stamp Act, the instruments which are duly stamped are inadmissible as evidence in a court of law. The payment of stamp duty in India can be done via electronic payment or by procuring stamp papers from government's treasury department.

In case of an instruments executed out of the territorial boundaries of the state, the Stamp Act mandates the instruments to be stamped within specific months of the same has been received in the respective state. For example, per Section 18 of the Maharashtra Stamp Act, every instrument chargeable with duty executed only out of this State may be stamped within three months after it has been first received in this State.

In the case of SMS Tea Estates Pvt. Ltd. Vs. Chandmari Tea Co. Pvt.Ltd.[1], Hon'ble Supreme Court at paragraph 12 has commented on the procedure to be adopted where the arbitration clause is contained in a document which is not registered (but compulsorily registrable) and which is not duly stamped in the state it has been recieved. Hon'ble Supreme Court in this respect has held that; (i) The court should, before admitting any document into evidence or acting upon such document, examine whether the instrument/document is duly stamped and whether it is an instrument which is compulsorily registrable, (ii) If the document is found to be not duly stamped, Section 35 of Stamp Act bars the said document being acted upon. Consequently, even the arbitration clause therein cannot be acted upon. The court should then proceed to impound the document under section 33 of the Stamp Act and follow the procedure under section 35 and 38 of the Stamp Act, (iii) If the document is found to be duly stamped, or if the deficit stamp duty and penalty is paid, either before the Court or before the Collector (as contemplated in section 35 or 40 of the Stamp Act), and the defect with reference to deficit stamp is cured, the court may treat the document as duly stamped, and (iv) Once the document is found to be duly stamped, the court shall proceed to consider whether the document is compulsorily registrable. If the document is found to be not compulsorily registrable, the court can act upon the arbitration agreement, without any impediment.

In M/S. Win-N-Quiz Company Limited vs The Authorized Officer, Bank of Baroda[2], Hon'ble Bombay high court has held that irrespective of the fact that the instrument was executed in West Bengal, since the instrument creating mortgage over the immovable property situated in Mumbai has come in before the courts in Mumbai, the instrument is liable to be stamped by payment of stamp duty per Section 3(1)(b) of the Bombay Stamp Act, 1958. The court further held that the debt recovery tribunal at the first instance was correct in impounding the instrument in accordance with Sections 33 and 34 of the Bombay Stamp Act, 1958.

Stamping of documents vis-à-vis Registrar of Companies (“RoC”) filing

While executing the transaction documents (eg. secured or unsecured loans or debenture trust deed for bonds issuance) parties to the transaction generally prefer to execute the transaction documents in a state where they have better arbitrage in respect of stamp duty implication on such document type.

For perfection of charge / security interest on the assets of the companies, section 77 of the Companies Act, 2013 (“Companies Act”) read along with Rule 4(2) chapter VI of The Companies (Registration of Charges) Rules, 2014 ("Charge Rules"), requires every company is required to file particulars of charge with RoC in form CHG-1 (CHG-9 for security created to secure debentures). Pursuant to the Rule 4 and 5 of the Charge Rules read with MCA notification no. G.S.R. 832 (E) dated 3 November 2015 the RoCs and regional directorates thereunder of the respective state and union territory shall have territorial jurisdiction over that respective state and union territory.

In accordance with section 398 of the Companies Act, the form filings with RoC can be done in electronic form and pursuant to the Section 402 of the Companies Act, the provisions of the Information Technology Act, 2000 (“IT Act”) relating to the electronic records, including the manner and format in which the electronic records shall be filed, in so far as they are not inconsistent with the Companies Act, shall apply for the records in electronic form as applicable to filing of applications, documents, inspection reports, etc., in electronic form.

The rule 7 of the Companies (Registration of Charges) Rules, 2014 specifies that every application, financial statement, prospectus, return, declaration, memorandum, articles, particulars of charges, or any other particulars or document or any notice, or any communication or intimation required to be filed or delivered or served under the Companies Act, 2013 and rules made there under, shall be filed or delivered or served in computer readable electronic form, in portable document format (pdf) or in such other format as has been specified in any rule or form in respect of such application or form or document or declaration to the Registrar through the portal maintained by the Central Government on its web-site or through any other website notified by the Central Government.  

Concern for companies

The concern which may arises when, for a company having its registered office in Mumbai, Maharashtra, being one of the party to the loan agreement and a deed of hypothecation executed in the state of Delhi, and upon such execution files a from CHG-1 with electronically attached duly stamped deed of hypothecation to the RoC Mumbai. 

In this case the company’s registered office is in the state of Maharashtra and therefore RoC Mumbai has a territorial jurisdiction over the company having registered office in Maharashtra. Therefore, when the company does an electronic submission of any instrument with RoC of the particular state but executes an instrument in some other state where a physical copy of the instrument is kept, the query which may arise is - whether an electronic submission of the instrument with RoC will amount to an instrument entering into that state where RoC has a territorial jurisdiction, if yes, what will the stamp duty implication in that scenario ?

Receipt of electronic record under IT Act

Section 13(3) (Time and Place of Despatch and Receipt of Electronic Record) under Chapter IV (Attribution, Acknowledgment and Despatch of Electronic Records) of the IT Act state - save as otherwise agreed to between the originator and the addressee, an electronic record is deemed to be despatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business.

In the case of M/s. P.R. Transport Agency v. Union of India[3], a division bench of Hon'ble Allahabad high court held that, the acceptance of the tender, communicated by by e-mail from respondents i.e. Union government of India to the petitioner i.e. M/s. P.R. Transport Agency  (which is an electronic record in accordance with the provision of the IT Act), will be deemed to be received by the petitioner at Varanasi / Chandauli, Uttar Pradesh which are the only two places where the petitioner has his place of business and Section 2(b) of the IT Act defines term ‘addressee’ as a person who is intended by the originator to receive the electronic record but does not include any intermediary. 

Conclusion

In view of the above and upon carefully reading the provisions of the Companies Act and the IT Act together, it can be deduced that any submission of an electronic record with the RoC of the particular state or union territory will be regarded as dispatch of an electronic record from the company to the RoC of the state of union territory where the company is registered and therefore the document has entered the concerned state of RoC.

It may also be noted chances of arising such conflict are high in case where such document is submitted as an evidence in court of law and the court thinks fit to impound the document because an inadequate stamping amount as been paid comparing to what concerned state stamp act has provide for.    

---

[1] 2011(4)-Arb.L.R.-265(S.C.)

[2] 2011 (5) All MR 135 (DB)

[3] AIR 2006 All 23

Banning of 59 Smartphone Apps by India and the Laws of the WTO (GATS)

Introduction

 

Recently, the Government of India decided to block 59 Smartphone Apps. According to the Government of India, the same were blocked “... in view of information available they are engaged in activities which is prejudicial to sovereignty and integrity of India, defence of India, security of state and public order.”

 

In the Press Notification issued in this regard, it has been further stated that: -

“At the same time, there have been raging concerns on aspects relating to data security and safeguarding the privacy of 130 crore Indians. It has been noted recently that such concerns also pose a threat to sovereignty and security of our country. The Ministry of Information Technology has received many complaints from various sources including several reports about misuse of some mobile apps available on Android and iOS platforms for stealing and surreptitiously transmitting users’ data in an unauthorized manner to servers which have locations outside India. The compilation of these data, its mining and proling by elements hostile to national security and defence of India, which ultimately impinges upon the sovereignty and integrity of India, is a matter of very deep and immediate concern which requires emergency measures.

.......

On the basis of these and upon receiving of recent credible inputs that such Apps pose threat to sovereignty and integrity of India, the Government of India has decided to disallow the usage of certain Apps, used in both mobile and non-mobile Internet enabled devices. These apps are listed in the attached appendix.”

 

Thus, according to the Government of India, since such Apps pose threat to the sovereignty, security and integrity of India, it has decided to disallow their usage. Interestingly, almost all of the Apps seem to have Chinese Origins. It is pertinent to note that Smartphone Apps provide variety of “services” to their respective users and many of them also involve trade and commerce.

 

GATS of WTO

 

GATS (General Agreement on Trade in Services) is basically an international agreement that governs how WTO members may regulate trade in services. The term ‘services’ has nowhere been defined under GATS. The only reference has been made under Article I of GATS which states that “‘services’ includes any service in any sector except services supplied in the exercise of governmental authority.”

 

There are four modes of supply under GATS: -

 

1.         Cross-Border Supply

2.         Consumption Abroad

3.         Commercial Presence

4.         Movement of Natural Persons

 

The present position is that Internet Based Services fall under Mode No. 1 i.e. Cross-Border Supply of Services. Further, GATS also provides for “Market Access” Commitments and Article XVI of the GATS states that “Each Member shall accord services and service suppliers of any other Member treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule.”

 

Schedule of Specific Commitments and WTO Jurisprudence

 

With respect to GATS, there is a Schedule of Specific Commitments by India that includes variety of services such as Online Information, Data Processing, Audiovisual, Software Implementation, Financial Services etc. These are broad head of services for which the country provides its Market Access, National Treatment and other Commitments. Thus, the Smartphone Apps depending upon the kind of services they are offering may or may not fall within one of these categories of services.

 

Article XIV and Article XIV bis of the GATS provides for General and Security Exceptions respectively. Thus, a country may restrict certain services if the same is against public morals, public order, affects safety and security of the country etc. In the celebrated case of United States — Measures Affecting the Cross-Border Supply of Gambling and Betting Services (DS-285), the WTO Appellate Body observed that the prohibitions/blockage embodied in such measures need to be applied to both foreign and domestic service suppliers of the services in question in order to satisfy the respective requirements of the Schedule of Commitments. Further, in the case of China– Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (DS-363), it was also observed that it is pertinent to be demonstrated by the country imposing restriction/blockage/prohibition on services that such measure was “necessary” to achieve the object sought to be achieved. This is also called the “Necessity Test.”

 

Concluding Observations

 

In my humble opinion, according to the Government of India, the decision to block 59 Smartphone Apps has been taken in the interests of the security, sovereignty and integrity of the country. Such exceptions definitely exist in the GATS of the WTO. However, if such a dispute comes up before the WTO, it remains to be seen how the prohibition measures taken by India will be interpreted by the DSU (Dispute Settlement Understanding).