It is interesting to determine the Legal Liabilities in the context of AI in health care. Medical Malpractice forms part of general negligence under Law. Given the fact that, negligence is attributable to breach of duty caused by the omission to do something which a reasonable man guided by those considerations, which ordinarily regulate human affairs would do, that which a prudent, rational/ reasonable man would not do. Usually, elements of negligence include duty to care, violation of duty, resultant injury, injury should be linked to violation of duty. Usually, negligence in context of health care can occur in advice/ counselling, diagnosis, treatment. However, in case of AI system used in the context of health care matters become very complex.
An interesting question in this context is can an AI Algorithm be sued for malpractice? However, the capacity to sue and to be sued can be determined only in case some legal recognition at least limited recognition is accorded to AI. Can AI Algorithm be subject to duty and care? Can AI used in Robotics Surgeries be subject to wrongful or incorrect conduct of operation?
In case an AI Algorithm is engaged for counselling and therapeutic sessions and does not sufficiently advice or counsel the patient regarding their medical conditions to prevent harm from occurring then it may amount to negligence. Can the AI Algorithm be subject to such negligence?
In case a patient is wrongly diagnosed or misdiagnosed by an AI Algorithm, then it amounts to a tort of negligence. However, in this scenario can a doctor using the AI technology also be liable for such misdiagnosis. However, if the AI Algorithm gets more and more accurate using machine learning techniques than a Doctor, then it may be difficult to attribute negligence to the doctor, since the Doctor is not the coder of such Algorithms. Can AI Algorithm be considered as a product within the ambit of Product Liability in the context of health care?
The net effect of which means that it is a form of Strict Liability where in the burden of proof will lie on the defendant, in which case the manufacture of the AI based software/ product and not the patient. However, the issue of strict liability brings in a new twisted option since human beings and AI are working together in the decision-making process and casting liability on the human being alone may be a challenge.
Can AI be brought under the private law regimes for compensating patients suffering from harm due to the errors or issues of the AI Algorithm.
However, in case it is found that there is a defect in the AI system in the context of Health Care that has resulted in the cause of patient’s injury, then the manufacturer shall hold liability of the same. further, in case the patient’s injury is a resultant of failure to properly handle and maintain the AI system, then the Doctor shall also be cast with contributory negligence. Vicarious Liability is usually applied in situations where one can be held responsible for the acts of the other, usually in case of employee employer relationships. In the context of AI, in health care can the Doctors /hospitals be liable for the negligence of the AI Algorithm. However, in order to attribute liability to the Doctors/ hospitals in this scenario a legal relationship should be established between the Doctors/hospitals and the AI Algorithms. In this kind of scenario some kind of legal recognition should be provided to the AI.
Can AI Algorithms qualify to be rendering professional advice like Doctors? Do they require any specific medical licenses or specifications in this regard? In case of any issue arising thereof, what is the landscape of legal liability will be interesting questions in the context of AI in health care.
The AI based Chatbots are developed with Machine Learning Algorithms including natural language processing in order to provide real time assistance to Health Care Providers, Professionals, Patients, thereby transforming Health Care, Patient Care, and Medical Care.
AI based Chatbots are being used to provide assistance to patients with regard to booking of medical appointments, knowing the status of their appointments, medical reports status and are used to sort out any grievances thereof.
Chatbots are primarily used in Health Care Industry for providing Information, by the way of pop-up Notifications. However, most of these Chatbots are used as tools or bots for providing enhanced customer support, by providing automated information. Further, Medical Chatbots are used by medical professionals for the purpose of getting assistance with regard to the Patient’s Medical Conditions and to offer different Medical Solutions to the Patient’s Health Conditions. Further, these Chatbots also provide Information relating to Medicines, their Dosage, Adverse Effects, and have the potential to improve the Health Care Industry.
These AI based Chatbots also raise some Medico Legal as also Legal Regulatory Aspects.
AI and Health Care has also revolutionised Telemedicine and Telehealth Applications. AI, Telemedicine and Telehealth are empowering remote patient monitoring offering better diagnosis addressing Hospital Work Force issues supporting Health related Education. AI and Health Care has also taken over automation of manual and repetitive tasks of collecting, analysing data including medical records and history. AI in Telemedicine is assisting the Doctors and Medical Professionals to diagnose, monitor the Patients Health Conditions and progress and is also providing assistance in health-related counselling. It is very interesting to note the kind of Doctor-Patient relationship with the application of AI in Telemedicine. AI Algorithms are also helping in detecting the occurrence of certain rare genetic diseases and disorders by analysing the photographs of the Patients during the Telemedicine Consultations. Further, the AI Algorithms in Telemedicine can be used for comparison of the old photographs with the new photographs of the Patient in order to identify the intensity of the disease or medical issue.
The AI Algorithms are also analysing the medical history of the Patients and are suggesting the best possible medical treatments to the Patients and helping the Doctors and Medical Professionals during the Telemedicine Consultations reducing the time and costs. AI by way of facial recognition can help in identifying the Patients and the Doctors during the Telemedicine Consultations. The application of AI in Telemedicine can also alert the Doctor in regard to the seriousness and the medical condition of the Patient thereby identifying the Emergency Cases. AI in combination with Cloud Computing can augment the Health Care Services to a next level. AI by way of facial recognition can also detect the Doctors fatigue and can also predict the screen time of the Doctors during the Telemedicine Consultation as also how many Patients the Doctor will be able to see before burning out. AI in Telemedicine can also help in better creation and management of medical records.
Surgical Robots are being developed with the application of AI and Robotics. These Surgical Robots are used for Procedures that require repetitive movements. AI in combination with deep Machine Learning is used for automating processes which is collected by observing the Medical Surgeons while performing surgeries. These AI based Robots can avoid unintentional and accidental movements. Given the Data and Algorithms, AI shall be able to determine the patterns with surgical procedures for coming up with best practices and improving their accuracy and precision. AI can also be used for identifying the procedures and steps in real time by analysing the videos of surgeries. They can also improve the outcomes of Patients, by accessing and treating diseases while integrated with medical procedures, instrumentation, and other technologies.
AI in Nursing has potentially helped nurses to improve the quality and efficiency of Nursing Care. AI applications including Machine Learning, Deep Learning, Natural Language Processing can aid in Nursing Research and Practice and can play an effective role in patient caring and outcomes. AI Algorithms shall be relevant in Nursing since these Algorithms can create Electronic Health Records in Patients and can analyse and help in Patient Monitoring. Integrating Data from Electronic Health Record AI can be used for providing Information regarding Patient’s specific preferences and can identify potential risk and help the nurse with nursing notes by providing analysis of the same. However, the AI Systems through Machine Learning can aid in sending Warnings or Notifications to the nurses in case of any immediate interventions. AI in Nursing Care can transform Nursing Care from reactive to predictive and enable more intelligent and smart Nursing Aids. The recent developments of AI in Nursing include Automating Nursing Documentation, Alerting and Notifying Nurses in cases of any Patients Movements, Breathing, Postures and Positions, Automatic Intimation of Completion of Saline Bottles, Remainders for giving Medications.
The use of AI in Mental Health Care is already being explored where in AI Algorithms are used for early detection and diagnostics of Mental Health Issues including Bipolar Disorders, Depression, Schizophrenia. The Mental Health issues are treated based on the Language Interaction, Speech, and other gestures during the Counselling and Therapy Sessions. AI by way of Machine Learning and Deep Learning based on Algorithms is capable of analysing the Speech Data and other interactions and can aid Psychologists and Psychiatrists. These Machine Learning Algorithms shall be able to analyse the Data and diagnose the Mental Illness. AI as a technology can dramatically improve research and treatment using its smart Algorithms for analysing the pattern and behaviour of Human Beings. AI shall act as a Virtual Mental Health Agent suggesting and predicting steps and strategies to be followed during the treatments. Further, AI by way of facial recognition can analyse and perform Health Assessments and can improve the user’s wellbeing. Needless to say, AI could also help in management of Mental Disorders given the anonymity and accessibility of the AI Algorithms.
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Default bail: Period of 90/60 days will commence from date of remand only, not from any unlawful custody prior to it, says Bombay High Court
In a clear, categorical, cogent, convincing and commendable judgment titled Gautam P Navlakha Vs. National Investigation Agency in Criminal Appeal Stamp No. 1707 of 2020 delivered by a two Judge Bench of the Bombay High Court comprising of Justice SS Shinde and Justice MS Karnik that was reserved on 16 December 2020 and pronounced finally on 8 February 2021, it was held in no uncertain terms that the time spent in “unlawful custody” cannot be included while computing the 90 days period prescribed for grant of default bail under Section 167(2) of the Criminal Procedure Code. This was held so while rejecting senior journalist-activist Gautam Navlakha’s petition for bail. It may be recalled that Navlakha was arrested in the Elgar Parishad – Maoist Links case twice. The first time that he was arrested was on August 28, 2018 and the second time then after he surrendered on April 14, 2020.
To start with, the ball is set rolling in para 1 of this leading case authored by Justice MS Karnik for himself and Justice SS Shinde wherein it is put forth that, “This is an Appeal under section 21 of the National Investigation Agency Act, 2008 (‘the Act’ for short) against order dated 12/07/2020 passed by the NIA Special Court in NIA Case No. 414 of 2020. The impugned order was passed on the Exhibit No. 276 application made by the Appellant before the NIA Court for statutory bail under section 167 (2) of Code of Criminal Procedure (for short ‘CrPC’) read with section 43 of the Unlawful Activities Prevention Act, 1967 (‘UAP’ Act for short).”
While elaborating on the facts of the case in brief that lead to the filing of the present appeal, it is then stated in para 2 that, “The Appellant states that he is a 69 years old scholar, writer, peace and civil rights activist and journalist of long standing associated with the Economic and Political Weekly and other well regarded publications. It is stated that the Appellant belongs to the People’s Union of Democratic Rights (‘PUDR’ for short) many of his Petitions have led to landmark judgments.”
While elaborating on the charges and FIR filed against him, the Bench then states in para 3 that, “The Appellant came to be arrested on 28/10/2018 at his residence in Delhi in connection with F.I.R. No. 4 of 2018 registered at Vishrambag Police Station, Pune on 08/01/2018. The said F.I.R. has since been numbered as RC 01/2020/NIA/Mum dated 24/01/2020 registered by NIA, Mumbai under sections 121, 121-A, 124-A, 153-A, 505(1)(b), 117, 120-B read with section 34 of Indian Penal Code (‘IPC’ for short) & sections 13, 16, 17, 18, 18-B, 20, 38, 39, 40 of UAP Act.”
It would be useful to mention that it is then stated in para 4 that, “The High Court of Delhi in Gautam Navlakha Vs State W.P.(Cr) No. 2559 of 2018 vide order dated 28/08/2018 stayed the Appellant’s transit remand proceedings and directed that the Appellant be kept under house arrest under guard of Delhi Police Special Cell along with local police that had come to arrest the Appellant.”
It would also be worthwhile to mention that it is then stated in para 5 that, “The Hon’ble Supreme Court in Romila Thapar vs. Union of India and ors. in Writ Petition (Crl) 261 of 2018 passed an interim order dated 29/08/2018 extending the Appellant’s house arrest, which was further extended from time to time till final disposal of the Petition on 28/09/2018. On 28/09/2018, the Hon’ble Supreme Court pronounced the judgment in Romila Thapar and gave the accused persons liberty to pursue appropriate legal remedies.”
Be it noted, the Bench then observes in para 6 that, “The High Court of Delhi by its order dated 01/10/2018 passed in Gautam Navlakha Vs. State Writ Petition (Cr) No. 2559 of 2018 quashed the Appellant’s arrest. This order was challenged by the State of Maharashtra (the prosecuting agency before transfer to NIA) before the Hon’ble Supreme Court in State of Maharashtra Vs. Gautam Navlakha SLP(Crl.) 8616/2018.”
As we see, it is then pointed out in para 7 that, “The Appellant by this time had spent 34 days in custody (house arrest) i.e. from 28/08/2018 to 01/10/2018, first under the orders of High Court of Delhi and then under the orders of the Hon’ble Supreme Court in ‘Romila Thapar’.”
What next follows is then stated in para 8 that, “The Appellant filed Writ Petition (Criminal) 4425 of 2018 in this Court for quashing the F.I.R. against him which was dismissed on 13/09/2019. This Court in the interregnum had ordered that no coercive steps be taken against the Appellant.”
While proceeding ahead, the Bench then states in para 9 that, “The order dated 13/09/2019 passed by this Court dismissing the Writ Petition for quashing of F.I.R. was challenged by the Appellant in SLP (Criminal) 8862 of 2019. The Hon’ble Supreme Court granted the Appellant 4 weeks protection with liberty to seek pre-arrest bail/ protection before the concerned Court. The Appellant then filed an anticipatory bail application before the Sessions Court Pune (the Court where the trial was pending before transfer to NIA) and then approached this Court. The anticipatory bail application came to be rejected by this Court on 14/02/2020.”
While stating about the appellant availing his legal remedies, the Bench then mentions in para 10 that, “The Appellant then approached the Hon’ble Supreme Court by way of (SLP) (Criminal) 1842 of 2020. By an order dated 16/03/2020 the Hon’ble Supreme Court directed the Appellant to surrender within 3 weeks. The appellant sought extension of time to surrender by an application dated 08/04/2020 due to Covid-19 pandemic. The Hon’ble Supreme Court granted one more week to the Appellant to surrender. The Appellant surrendered to NIA Delhi on 14/04/2020 in compliance with the order passed by the Hon’ble Supreme Court. It is stated by the Appellant that he could not surrender to NIA, Mumbai as there was ban on inter- state travel due to Covide-19 pandemic.”
Be it noted, para 17 then brings out that, “Learned Senior Advocate Mr.Kapil Sibal appearing on behalf of the Appellant submitted that the Appellant’s total custody had exceeded 90 days and no charge-sheet had been filed nor extension of time sought for fling charge-sheet and hence, the Appellant is entitled for statutory bail under section 167(2) of CrPC read with 43 of UAP Act. According to learned Senior Advocate 90 days custody of the Appellant is as follows.
“From 28.8.2018 – 1.10.2018 (custody in his house) = 34 days (excluding the last day)
From 14.4.2020 – 25.4.2020 (NIA custody) = 11 days (excluding the last day)
From 25.4.2020 – 12.6.2020 (Judicial custody) = 48 days (excluding the last day)
TOTAL 93 DAYS
Simply put, the Bench then brings out in para 33 that, “Though the facts have been set out in detail earlier, however for appreciating the controversy, it would be apposite to concisely refer to a few basic facts again.
Please read concluding on thedailyguardian.com
Pursuant to registration of FIR, the Appellant was restrained in his house by the Maharashtra Police on 28.08.2018. The learned CMM granted transit remand to the Appellant on 28.08.2018. The High Court of Delhi stayed the Appellant’s transit remand proceedings on the same day i.e. 28.08.2018. Apart from the other directions, the following direction in paragraph 5(6) of the order which reads thus came to be issued :-
“5(6) The Petitioner shall, in the meanwhile, be kept at the same place from where he was picked up with two guards of the Special Cell, Delhi Police along with local Police that was originally here to arrest the Petitioner, outside the house. Barring his lawyers, and the ordinary residents of the house, the Petitioner shall not meet any other persons or step out of the premises till further orders.”
Going forward, the Bench then envisages in para 34 that, “The interim directions were continued from time to time. The High Court of Delhi finally on 01.10.2018 held that the order passed by the learned Chief Metropolitan Magistrate (CMM for short) on 28.08.2018 granting transit remand to the Appellant is unsustainable in law. It was held that there were several non-compliances of the mandatory requirement of Article 22(1), Article 22(2) of the Constitution and Section 167 read with Section 57 and 41(1)(ba) of the Cr.P.C., which are mandatory in nature. The High Court of Delhi also observed that in view of Section 56 read with Section 57 of the Cr.P.C., in the absence of the remand order of the learned CMM, the detention of the Petitioner, which has clearly exceeded 24 hours, is again untenable in law. Consequently, it was ordered that the house arrest of the Petitioner came to an end. It was clarified that the order will not preclude the State of Maharashtra from proceeding further in accordance with law.”
More significantly, the Bench then after considering the versions of both sides goes on to add in para 39 that, “The bone of contention is the period of 34 days (28/08/2018 to 01/10/2018) which the appellant was under custody (house arrest). Undoubtedly, this period has to be regarded as custody as the appellant admittedly was under house arrest. However, in our opinion, the intervening orders passed would be relevant for determining the nature of this custody for the purpose of Section 167 of Cr.P.C to enable the appellant to claim default bail. Following circumstances cumulatively leads us to conclude that the appellant is not entitled to the benefit of 34 days for claiming statutory default bail.
(1) The transit remand order came to be stayed by the Delhi High Court on 28/10/2018.
(2) The appellant was placed under house arrest pursuant to the directions of the Delhi High Court during which period the investigating officer did not get the opportunity of interrogating him.
(3) The High Court of Delhi quashed the appellant’s arrest holding that the appellant’s detention is illegal.
(4) Pursuant to the declaration of the detention as illegal, the appellant was set at liberty. It is not as if the appellant was released on bail but after being set at liberty, the appellant is protected by an order of this Court restraining the investigating agency from taking coercive steps during the pendency of appellant’s challenge to the FIR.
(5) The Hon’ble Supreme Court having dismissed the challenge of the appellant to quash FIR granted 4 weeks protection with liberty to seek pre arrest bail/protection before the Sessions Court. The Hon’ble Supreme Court granted the appellant time to surrender after the appellant failed to serve pre arrest bail. The appellant ultimately surrendered to NIA Delhi on 14/04/2020. Only after the appellant surrendered, the Magistrate authorised the police custody whereupon the appellant was interrogated.”
Equally significant is what is then stated in para 45 that, “In the present case, no doubt the Appellant was under house arrest. The transit remand ordered by the CMM on 28.08.2018 was stayed by the High Court of Delhi on very same day. During the period of house arrest, barring the Appellant’s lawyers and ordinary residents of the house, the Appellant was not supposed to meet any one or step out of the premises till further orders. The High Court of Delhi had ordered that the Appellant be kept at the same place from where he was picked up with two guards of the Special Cell, Delhi Police along with local police that was originally present to arrest the Appellant, outside the house. It is therefore obvious that the Investigating Agency/Investigating Officer did not have any access to him nor had an occasion to interrogate him. As the transit remand order was stayed, it cannot be said that the appellant was under detention of police for investigation.”
What’s more, it is then elucidated in para 46 that, “Further under Sub-Section (2) of Section 167 of Cr.P.C. the Magistrate has to authorise the detention of the accused in such custody as such Magistrate thinks ft, for a term not exceeding fifteen days. The CMM granted transit remand on 28.08.2018. The righ Court of Delhi by an interim order having stayed the transit remand and then having finally set aside the order of transit remand thereby holding the detention during the period 28.08.2018 upto 01.10.2018 (period of house arrest) as illegal, then, in our opinion, in the absence of there being an authorised detention by an order of Magistrate, the Appellant cannot claim entitlement to statutory default bail under Sub-Section (2) of Section 167 of the Cr.P.C. The mandate of Sub-Section (2) of Section 167 of the Cr.P.C. makes it clear that for claiming availment of default bail under Section 167(2) of the Cr.P.C. the basic requirement is that the detention of the accused in the custody has to be authorised by the Magistrate. Once the authorisation by the Magistrate is declared illegal consequently rendering the detention itself illegal, the said period (house arrest custody) cannot be construed to be an authorised custody within the meaning of Section 167(2) of CrPC.”
No less significant is what is then stated in para 47 that, “The Apex Court in the case of Chaganti Satyanarayan and others (supra) held that the period of 90 days will commence only from the date of remand and not from any anterior date inspite of the fact that the accused may have been taken into custody earlier by a police officer and deprived of his liberty. Thus, from a reading of Section 167(2) of Cr.P.C., we are of the view that the essential requisite for availing statutory bail is that the accused must have undergone the authorised period of detention ordered by the Magistrate. It is not possible for us to construe any and every detention which may have resulted in deprivation of liberty of the accused to be an authorised detention by the Magistrate within the meaning of Section 167(2) of the Cr.P.C.”
Quite remarkably, the Bench then holds in para 48 that, “It is not possible for us to fathom a situation where detention of the Appellant though held to be illegal & unlawful rendering the authorisation by the Magistrate untenable should still be construed as an authorised detention for the purpose of Sub-Section (2) of Section 167 of the Cr.P.C.. In our view sans any valid authorisation/order of the Magistrate detaining the appellant, the incumbent will not be entitled to a default bail. It is therefore obvious that Sub-Section (2) of Section 167 of the Cr.P.C. necessarily presupposes a detention authorised by a Magistrate, for only then the said period of authorised detention can count towards calculating 90 days period of custody prescribed under Section (2) of Section 167 of the Cr.P.C. for the purpose of default bail.”
In view of the above, the Bench then holds in para 49 that, “Resultantly we hold that the period from 28.08.2018 to 01.10.2018 has to be excluded from computing the period of 90 days as the said custody has been held to be unsustainable in law by the High Court of Delhi. The High Court of Delhi also set aside the order passed by the learned CMM on 28.08.2018 granting transit remand to the Appellant. It is not in dispute that thereafter the Appellant applied for Anticipatory Bail which came to rejected at all stages and ultimately the Appellant surrendered on 14.04.2020. It is only consequent to the surrender that the Magistrate then authorise the police custody.”
We also need to pay attention that it is henceforth observed in para 50 that, “The decisions relied upon by the learned Senior Advocate Shri Sibal have no application in the facts of the present case. None of the decisions relied upon by learned Senior Advocate Mr. Sibal deals with the question whether sans any authorisation of the detention by the Magistrate under Section 167(2) of Cr.P.C. and particularly when the detention has been held to be unlawful, can this period of custody still be included in the 90 days period prescribed for grant of default bail.”
Now coming to the concluding paras. Para 51 states that, “We have gone through the order passed by the Special Judge, NIA. We see no reason to interfere with the well reasoned order of the learned Special Judge. The Appeal Stands dismissed.” Finally, it is then stated in the last para 52 that, “This judgment will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this judgment.”
In conclusion, the Bombay High Court has rejected senior journalist-activist Gautam Navlakha’s petition for bail. It minced no words to hold that, “It is not possible for us to fathom a situation where detention of the Appellant (Navlakha) though held to be illegal and unlawful rendering the authorization by the Magistrate untenable should be construed as an authorized detention for the purpose of Sub-Section (2) of Section 167 of the Cr.PC.” The Division Bench of Justices SS Shinde and MS Karnik held that the 34 days Navlakha had spent under house arrest between August 28, 2018 – October 10, 2018 cannot be used to calculate his total detention period especially since his arrest as well as the Magistrate’s transit remand was found to be illegal by the Delhi High Court. We also see that the Bench relied on the decision of Chaganti Satyanarayan and others v. State of Andhra Pradesh (1986) 3 SCC 141 where the Supreme Court in Paragraph 24 held that the period of 90 days or 60 days, as the case may be, will commence running only from the date of remand and not from any anterior date in spite of the fact that the accused may have been taken into custody earlier by a police officer and deprived of his liberty.
While definitely this notable ruling is a big setback for Gautam Navlakha but all the doors are still not closed for him yet. He still has the option to approach the Supreme Court. His lawyer who is none other than the eminent and legendary Kapil Sibal who is former Union Law Minister as also senior Supreme Court lawyer will surely further strenuously argue the case with full vigour in the top court. But in Bombay High Court we see that Kapil Sibal’s arguments failed to convince the Judges in this case as we have already discussed above!
Sanjeev Sirohi, Advocate,
Appointment of judges: An analysis
In a recent notification, the Ministry of Law and Justice has modified the resolution of the Collegium which had suggested for extending the tenure of Justice Pushpa Ganediwala to two years as additional judge at Bombay High Court. Instead, the Notification has modified the order and extended the tenure of Justice Ganediwala to one year instead of two. This particular act of the executive is attracting a lot of criticism across bar and bench, the former Chief Justice of India Justice R.M. Lodha has taken critical view of this step by the Executive. Not accepting the resolution of the Collegium is not an accepted convention in the Indian Judicial history, especially after the Supreme Court Advocate on Record Association v. Union of India (1993), backed by the In Re Special Reference (1998) judgments which have clearly laid down, that the final words regarding appointment, transfer and elevation of the judges would be with the Collegium.
However, it cannot be denied that off lately Justice Ganediwala has drawn a lot of criticism, especially due to her ‘skin-to-skin’ judgment on the POSCO matters, modification of the Collegium resolution does look like a result of this factor. However, it also needs to be kept in mind that through its 20th January resolution the Collegium had recommended the name of Justice Ganediwala for permanent judge in the Bombay High Court, however, the Collegium soon after retrieved the resolution and modified it to extension of tenure to two-years as an additional judge. As per Indian Express, the recommendation for the permanent position was retrieved after strong dissent were reported by Justice Khanwilkar and Justice Chandrachud on the name of Justice Pushpa. So, the role of Executive cannot be questioned on this front, however, modifying the years of extension does seem like a reasonable interference by the Executive. Yet, there are two ways of seeing this particular phenomenon. On a normative basis and on a judicial accountability basis, let us explore this incident initially on a normative basis, the fact that Justice Pushpa is an additional judge, and the collegium has extended her tenure and the Executive modified it to one year, which directly means that Executive has not complied with the Collegium resolution, which is against the accepted practice. However, this accepted practice of embracing Collegium resolution as a norm is only applicable to article 124 (2), 217 & 222. As only these articles talk about the term “……President in Consultation with such number of Judges of Supreme Court and High Court…….”, what is emphatic in this sentence is the term ‘Consultation’, which normatively means that the President will make appointment on the recommendation of the Collegium. This term ‘Consultation’ under article 124 (2), 217 & 222 brought ‘Collegium’ into existence, as per SCAORA judgment & In Re Special Reference opinion the term ‘Consultation’ meant consensus of the CJI along with the four senior judges of the Supreme Court and recommending the names to the President. In absence of the Consultation of the CJI with the senior judges, the Executive would not be bound to accept the recommendation of the Collegium (however, the strength and coram of Collegium changes as per the role it is working upon). Thus, the term ‘Consultation’ brings a normative set of procedure which has to be followed, however, under article 224 of the Constitution which governs the terms and tenure of additional judges, there is no usage of the term ‘Consultation’. Therefore, the kind of bondage that the Executive has to follow in case of article 124 (2), 217 & 224 due to normative procedure of ‘Consultation’, the same normative procedure does not seem to be a part of article 224. Surely, the Collegium cannot claim to have the same normative strength under article 224, as the article 224 reads “….it appears to the President that the number of the judges of that Court should be for the time being increased….”, there is no usage of the term ‘Consultation’, rather the satisfaction of the President under article 224 is much freer-flowing then as compared to that of Article 124 (2), 217 & 222.
On the second front, the fact that Executive is restricted the tenure to one year instead of two seems like a chastisement for the kind of judgment which was delivered. Judicial accountability surely is a much-needed element for the Indian Judiciary. In a Recommendation-based appointment model, the risk of appointing a wrong person in a high position is palpably there, so will the interference of the Executive in the working of Collegium would work as a check upon the judiciary which for long has stayed away from any scrutiny. Ever since the 1993 SCAORA judgment, the working of Collegium has turned very discreet with limited scope of judicial review, with the last attempt being made in 2015 when the BJP-led government tried bringing NJAC which was again struck down on the ground of Judicial Independence. Therefore, this step of modification might be seen as a step towards judicial scrutiny or legislating the judicial action to bring it more in consonance with the public image, the fact that the judgment of Justice Pushpa was much published and was in lime light across the society, surely has played a role in bringing Executive action.
It is however, paramount to highlight anecdotes from the making of the Indian Constitution to understand the jurisprudence of this issue. Judiciary since the inception of the Republic of India has held a sacrosanct position in the minds of individuals. A great deal of debates and discussions in the Constituent Assembly have been dedicated to ascertain this sacred and democratic idea of independent judiciary. In the words of Nehru, “of the highest integrity…people who can stand up against the executive government and whoever may come in their way.” Surely, Nehru’s implication was on the part that, the judiciary must stand between the executive and the people of India as a pillar to balance the State’s action. But a significant question that kept the debate going was on the appointment of judges to these Constitutional Courts. Prior to the debate, the Sapru Committee (1946) heavily criticized the colonial system of appointment, which allowed excessive interaction with the executive. This report laid the foundation for the idea of an independent judiciary in respect to the appointment of judges. It is fascinating to note that, although the Constituent Assembly was inclined towards the independence of judiciary (Nehru’s speech gives a clear idea), there were alternate opinions on the same. These alternate opinions include T.T. Krishnamachari’s caveat to maintain a check-balance system. According to Krishnamachari “Imperium in Imperio… operating as a sort of superior body to the general body politic.”, his words reflects the idea that the independence of judiciary may result in a superior body working as a parallel executive. Moreover, Ambedkar’s views were in conformity with that of Karamchari’s, though Ambedkar placed his rational upon the personal bias of individuals, he believed that if the power of concurrence lies with the CJI, it would lead into a ‘veto’ power bestowed with the CJI. Though the CJI is of the highest integrity but the chances of personal bias can’t be negated, and if it happens, it would disrupt the fine balance of the three organs of the State. On the line of Nehru, Krishnamachari and then Ambedkar, it is safe to interpret that there is a fine line of independence of judiciary and check-balances.
However, there have been few instances where this fine line has been breached by the executive. Previously, the executive has turned down the name of Mr Gopal Subramanium for his elevation as a Supreme Court judge. Similarly, the executive had put a hiatus on the elevation of Justice K.M Joseph. In the former case, Mr Subramanium wrote to the then CJI R.M. Lodha, expressing his anguish he wrote ‘carefully orchestrated drama to scuttle my elevation.’. The latter case seemed like high-tabled political drama to manipulate seniority. Justice Joseph’s appointment was delayed for more than a year, affecting his seniority in the Supreme Court. Another example to this delayed practice could be seen in Justice A.K. Kureshi’s appointment, where the collegium and the executive went neck-to-neck. The collegium twice recommended to elevate Gujarat High Court Justice Kureshi as Chief Justice of Madhya Pradesh High Court (sanctioned strength of 53 judges), but the executive raised objection over the recommendations. The result of it, if seen in the light of Constituent Assembly would again resemble the breach of the fine line, ultimately Justice Kureshi was recommended and appointed to Tripura High Court (sanctioned strength of 4 judges). Also, the former CJI TS Thakur, in the year 2016, pulled the executive by threatening to summon the officials of Law Ministry and the PMO over a tussle between collegium and the executive, wherein the executive sat over the recommendations by the collegium.
So, it is thus lucid that there lies a tussle between the modus operandi of both collegium and the executive on the appointment of the judges and at times executive has abstained itself from concurring with collegium. However, the collegium recommendations as well have not been transparent at times. The parameters for the recommendations made by the collegium are kept behind the doors, for instance in 2019, Chief Justice of Madras High Court (sanctioned strength 75 judges) V.K. Tahilramani and the senior most of the high court judges at that time, resigned after the collegium transferred her to the high court of Meghalaya (smallest high court with the sanctioned strength of 3 judges). While this move manifested the procedure of appointment of judges in the bad light, it also attracted criticism and protests from the legal fraternity, to which the collegium responded by saying that it had ‘cogent reasons’. Justice Chelameswar while penning down his strong dissent in NJAC judgment, noted non-transparency, non- accountability and speculations in the working of collegium. Even Justice Kurian Joseph, who was the part of the majority judgement said that he regrets his decision because of non-transparency of collegium system, he stated in the context of the collegium that “..100% defective… I regret my NJAC judgment.”
This is now essential to bring back the Assembly into the debate again, while the instances of executives overplay on the collegium directs towards the idea of Nehru to keep the independence of judiciary intact. Whereas, on the opaqueness of the Collegium system, Krishnamachari’s and Ambedkar’s idea take the forefront of maintaining checks and balances.
Allahabad HC acquits rape accused after 20 years in jail
It is a matter of national shame, national disgrace and national humiliation that a man had to suffer without committing any offence 20 years of incarceration in connection with a false rape case filed against him by a woman owing to an alleged land dispute. Why is it that a woman who files a false rape case is not similarly made to undergo rigorous imprisonment for at least the same period which the man had to undergo? Why our lawmakers most shamelessly, senselessly and stupidly not do anything on this score?
It must be mentioned here that the Allahabad High Court on January 28, 2021 in a latest, learned, laudable and landmark judgment titled Vishnu v. State of UP in Criminal Appeal No. 204 of 2021 (From Jail) (Defectivve Appeal No. 386 of 2005) came to the rescue of a man, after he wrongly suffered 20 years of incarceration in connection with a false rape case filed against him by a woman owing to an alleged land dispute. A Division Bench of Justices Dr Kaushal Jayendra Thaker and Gautam Chowdhary while passing order for release of one Vishnu, set aside the conviction order passed by a Trial Court in 2003, under Sections 376 and 506 of IPC and Sections 3(2)(v) read with Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Very rightly so!
To start with, the ball is set rolling in para 1 of this notable judgment authored by Justice Dr Kaushal Jayendra Thaker for himself and Justice Gautam Chowdhary wherein it is put forth that, “Since the date of occurrence of the incident, i.e. 16.9.2000, the accused is in jail i.e. since 20 years. Most unfortunate, aspect of this litigation is that the appeal was preferred through jail. The matter remained as a defective matter for a period of 16 years and, therefore, we normally do not mention defective appeal number but we have mentioned the same. This defective conviction appeal was taken up as listing application was filed by the learned counsel appointed by Legal Services Authority on 6.12.2012 with a special mention that accused is in jail since 20 years.”
On the face of it, the Bench then brings out in para 2 that, “By way of this appeal, the appellant has challenged the Judgment and order 24.2.2003 passed by court of Sessions Judge, Lalitpur in Special Case No.43 of 2000, State Vs. Vishnu arising out of Special Case No. 43 of 2000, under Sections 376, 506 of IPC and 3(1)(xii) read with Section 3(2)(v) of Scheduled Casts and Scheduled Tribes ( Prevention of Atrocities) Act, 1989, Police Station Mehroni, District Lalitpur whereby the accused-appellant was convicted under Section 376 IPC and sentenced to imprisonment for a period of ten years with fine of Rs.2,000/-, and in case of default of payment of fine, to undergo further rigorous imprisonment for six months; he was further convicted under Section 3(2)(v) read with Section 3(1)(xii) of Scheduled Casts and Scheduled Tribes ( Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘S.C./S.T. Act, 1989’) and sentenced to imprisonment for life with fine of Rs.2,000/- and in case of default of payment of fine, to undergo further rigorous imprisonment for six months; and he was further convicted under Section 506 IPC and sentenced to undergo rigorous imprisonment under Section 506 IPC. All the sentences were to run concurrently as per direction of the Trial Court.”
To put things in perspective, the Bench then points out in para 3 that, “The brief facts as per prosecution case are that on 16.9.2000 at about 2:00 p.m., the prosecutrix was going from her house in village Silawan, P.S. Mehroni to Haar (fields), when she reached near mango tree named ‘black mango tree’ situated on the road leading to Zaraia accused-Vishnu son of Rameshwar Tiwari who had hidden behind the bushes, caught hold of her with bad intention and behind the bushes, he committed rape with her by pressing her mouth and went away extending threat that if any report is lodged at the police station or this fact is divulged to anyone, he will kill her. She went back to the house and disclosed the whole incident to her family members who did not go to the police station due to threat and went to Lalitpur, and on 19.9.2000 she along with her father-in-law Gulkhai and husband Bragbhan hiding themselves went to the police station for reporting the said incident.”
As it turned out, the Bench then observes in para 15 that, “We are unable to convince ourselves with the submission made by learned AGA for State that she has been a victim of atrocity as well rape and, therefore, the accused should not be leniently dealt with.”
Of course, the Bench then states in para 27 that, “The evidence as discussed by learned Judge shows that the mere fact that no external marks of injury was found by itself would not throw the testimony of the prosecutrix over board as it has been found that the prosecutrix had washed out all the tainted cloths worn at the time of occurrence as she was an illiterate lady. The learned Judge brushed aside the fact that report was lodged three days later. We also do not give any credence to that fact and would like to go through the merits of the matter.”
Be it noted, it is then elucidated in para 29 stating that, “We venture to discuss the evidence of the prosecutrix on which total reliance is placed and whether it inspires confidence or not so as to sustain the conviction of accused. There were concrete positive signs from the oral testimony of the prosecutrix as regards the commission of forcible sexual intercourse. In case of Ganesan Versus State Represented by its Inspector of Police, Criminal Appeal No. 680 of 2020 ( Arising from S.L.P. ( Criminal ) No.4976 of 2020) decided on 14.10.2020 wherein the principles of accepting the evidence of the minor prosecutrix or the prosecutrix are enshrined the words may be that her testimony must be trustworthy and reliable then a conviction based on sole testimony of the victim can be based. In our case when we rely on the said decision, it is borne out that the testimony of the prosecutrix cannot be said to be that of a sterling witness and the medical evidence on evaluation belies the fact that any case is made out against the accused.”
It is also worth noting that it is then stated in para 30 that, “The evidence of Dr. Smt. Sarojini Joshi, Medical Officer, PW-4 C.H.C., Mehroni who medically examined the prosecutrix on 19.9.2000 at 8:45 p.m., found no external or internal injury on the person of the victim. On preabclomen examination, uterus size was 20 weeks and ballonement of uterus who was present. On internal examination, vagina of the victim was permitting insertion of two fingers. Internal uterine ballonement was present. The victim complained of pain during internal examination but no fresh injury was seen inside or outside the private part. Her vaginal smear was taken on the slide, sealed and sent for pathological investigation for examination. The doctor opined both in occular as well as her written report that the prosecutrix was having five months pregnancy and no definite opinion about rape could be given.”
Furthermore, it is then stated in para 31 that, “In the x-ray examination, both wrist A.P., all eight carpal bones were found present. Lower epiphyses of both wrist joints were not fused. All the bony epiphyses around both elbow joints were fused. In the supplementary report, the doctor opined that no spermatozoa was seen by her and according to the physical appearance, age of the victim was appearing to be 15 to 16 years and no definite opinion about rape could be given.”
What is even more glaring is thus stated in para 32 that, “We find one more fact that despite allegation that rape is committed as alleged by the prosecutrix, there are no injuries on the private part of the lady, who is a fully grown up lady and who was pregnant and is said to have been threshed. Further, there was a motive on the part of complainant that there was land dispute between the parties. In statement of prosecutrix in her cross examination on 23.5.2002, she stated that it was her husband and father-in-law, who had lodged the compliant. Thereafter, learned Judge closed the cross examination of PW-1 and recorded it further on 24.5.2002. The First Information Report is also belatedly lodged by three days is the submission of the counsel Amicus Curiae appointed by High Court.”
Adding more to it, the Bench then makes it known in para 33 that, “As far as the medical evidence is concerned, there are three emerging facts. Firstly, no injury was found on the person of the victim. We are not mentioning that there must be any corroboration in the prosecution version and medical evidence. The judgment of the Apex Court rendered in the case of Bharvada Bhogin Bhai Hirji Bhai Versus State of Gujarat, AIR 1983 SCC page 753, which is a classical case reported way back in the year 1983, on which reliance is placed by the learned Session Judge would not be helpful to the prosecution. The medical evidence should show some semblance of forcible intercourse, even if we go as per the version of the prosecutrix that the accused had gagged her mouth for ten minutes and had thrashed her on ground, there would have been some injuries to the fully grown lady on the basis of the body.”
While still continuing further, the Bench then adds in para 34 that, “In our finding, the medical evidence goes to show that doctor did not find any sperm. The doctor categorically opined that no signs of forcible sexual intercourse were found. This was also based on the finding that there were no internal injuries on the lady who was grown up lady.”
Needless to say, it cannot be dismissed lightly that it is then pointed out in para 35 that, “The factual data also goes to show that there are several contradictions in the examination-in-chief as well as cross examination of all three witnesses. In her examination-in-chief, she states that incident occurred at about 2:00 p.m. but nowhere in her ocular version or the FIR, she has mentioned that she was going to the fields with lunch for her father-in-law. This statement was made for the first time in the ocular version of the husband of the prosecutrix i.e. PW-3 and that it was father-in-law who narrated incident to the police authority. The father-in-law as PW-2 in his testimony states that he was told about the incident by her daughter-in-law (Bahu) on which he complained some villagers about the accused who denied about the incident, therefore, they decided to go to the police station on the next day but the police refused to lodge the report on the ground that no one was present in the police station, therefore, they went on third day of the incident to lodge the FIR. After this, again he contradicts his story in his own statement recorded on cross-examination on the next date stating that the incident was told by his daughter-in-law to his wife who told him about the same. There is further contradiction in the statements of this witness. In examination-in-chief he states that the parties called for Panchayat but there is nothing on record that who were the persons called for Panchayat. If the pregnant lady carries fifth month pregnancy is thrashed forcefully on the ground then there would have been some injury on her person but such injuries on her person are totally absent.”
To be sure, it would be imperative to mention here that it is then stated in para 36 that, “For maintaining the conviction under Section 376 Cr.P.C., medical evidence has to be in conformity with the oral testimony. We may rely on the judgment rendered in the case of Bhaiyamiyan @ Jardar Khan and another Versus State of Madhya Pradesh, 2011 SCW3104. The chain of incident goes to show that the prosecutrix was not raped as would be clear from the provision of section 375 read with Section 376 of IPC.”
What also needs noting is that it is then stated in para 37 that, “The judgment relied on by the learned Amicus Curiae for the appellant will also not permit us to concur with the judgment impugned of the learned Trial Judge where perversity has crept in. Learned Trial Judge has not given any finding as to fact as to how commission of offence under Section 376 IPC was made out in the present case.”
Of particular significance is what is then stated in para 38 that, “Section 3(2)(v) of Scheduled Castes and Scheduled Tribes ( Prevention of Atrocities) Act, 1989 is concerned, the FIR and the evidence though suggests that any one or any act was done by the accused on the basis that the prosecutrix was a member of Scheduled Castes and Scheduled Tribes then the accused can be convicted for commission of offence under the said provision. The learned Trial Judge has materially erred as he has not discuss what is the evidence that the act was committed because of the caste of the prosecutrix. The sister-in-law of the prosecutrix had filed such cases, her husband and father-in-law had also filed complaints. We are unable to accept the submission of learned AGA that the accused knowing fully well that the prosecutrix belonged to lower strata of life and therefore had caused her such mental agony which would attract the provision of Section 3(2)(v) of the Atrocities Act. The reasoning of the learned Judge are against the record and are perverse as the learned Judge without any evidence on record on his own has felt that the heinous crime was committed because the accused had captured the will of the prosecutrix and because the police officer had investigated the matter as a atrocities case which would not be undertaken within the purview of Section 3(2)(v) of Atrocities Act and has recorded conviction under Section 3(2)(v) of Act which cannot be sustained. We are supported in our view by the judgment of Gujarat High Court in Criminal Appeal No.74 of 2006 in the case of Pudav Bhai Anjana Patel Versus State of Gujarat decided on 8.9.2015 by Justice M.R. Shah and Justice Kaushal Jayendra Thaker (as he then was).”
No doubt, it is then rightly stated in para 39 that, “Learned Judge comes to the conclusion that as the prosecutrix belonged to community falling in the scheduled caste and the appellant falling in upper caste the provision of SC/ST Act are attracted in the present case.”
What also needs to be noted is that it is then brought out in para 40 that, “While perusing the entire evidence beginning from FIR to the statements of PWs-1, 2 and 3 we do not find that commission of offence was there because of the fact that the prosecutrix belonged to a certain community.”
As a corollary, the Bench then holds in para 42 that, “In view of the facts and evidence on record, we are convinced that the accused has been wrongly convicted, hence, the judgment and order impugned is reversed and the accused is acquitted. The accused appellant, if not warranted in any other case, be set free forthwith.”
Damningly, the Bench then states in para 45 that, “We find that in the State of U.P. even after 14 years of incarceration does not even send the matter to the Magistrate for reevaluation the cases for remission as per mandate of Sections 432 and 433 of Cr.P.C. and as held by Apex Court in catena of decisions even if appeals are pending in the High Court. The accused in present case is in jail since 2000.”
More damningly, the Bench then observes in para 47 that, “Section 433 and 434 of the Cr.P.C. enjoins a duty upon the State Government as well as Central Government to commute the sentences as mentioned in the said section. We are pained to mention that even after 14 years of incarceration, the State did not think of exercising its power for commutation of sentence of life imprisonment of the present accused and it appears that power of Governor provided under Article 161 of the Constitution of India are also not exercised though there are restriction to such power to commute sentence. The object of Sections 432 read with Section 433 of the Cr.P.C. is to remit the sentence awarded to the accused if it appears that the offence committed by him is not so grave. In our case, we do not see that why the accused is not entitled to remission. His case should have been considered but has not been considered. Remission/ commutation of sentence under Sections 433 and 434 of the Cr.P.C. is in the realm of power vested in the Government. The factual scenario in the present case would show that had the Government thought of taking up the case of the accused as per jail manual, it would have been found that the case of the appellant was not so grave that it could not have been considered for remission / commutation.”
Most damningly, the Bench then holds in para 48 that, “Most unfortunate, aspect of this litigation is that the appeal was preferred through jail. The matter remained as a defective matter for a period of 16 years and, therefore, we normally do not mention defective appeal number but we have mentioned the same. This defective conviction appeal was taken up as listing application was filed by the learned counsel appointed by Legal Services Authority on 6.12.2012 with a special mention that accused is in jail since 20 years.”
No wonder, the Bench then rightly observes in para 49 that, “Seeing this sorry State of Affairs, we request the Registrar (Listing) through the Registrar General to place the matter before Hon’ble the Chief Justice that periodical listing of matters be taken up in the High Court so that those who are in jail for more than 10 or 14 years, where the appeals are pending, may at least get their appeal heard which are mainly jail appeals.”
Finally, it is then held in the last para 52 that, “A copy of this judgment be sent to the Law Secretary, State of U.P. who shall impress upon the District Magistrates of all the districts in the State of U.P. to reevaluate the cases for remission after 14 years of incarceration as per mandate of Sections 432 and 433 of Cr.P.C. even if appeals are pending in the High Court.”
To sum up, it is high time that a major surgery is done of the judicial system prevailing in lawless states like UP which accounts for maximum pending cases in India and Bihar. When there can be 4 High Court Benches for peaceful states like Maharashtra and Assam, 3 for Karnataka and two for Madhya Pradesh and West Bengal then why just one Bench for UP and here too West UP where maximum cases of crimes take place accounting for more than half of the total pending cases in UP has none and so also Bihar has none even though PM Narendra Modi represents UP from Varanasi and Law Minister Ravi Shankar Prasad from Patna still why no effort is made to create more High Court Benches in these two States? This is the real tragedy!
Maharashtra tops in Justice Index List as it is doing very good and still has 4 High Court Benches. The former UP Chief Justice DB Bhosale who hails from Maharashtra in his capacity as Chief Justice of UP had said that in Maharashtra women can venture out even in night alone which even I have seen myself as I did my LLB from Pune but in UP women is just not safe even with family and that too in national highway where she was assaulted brutally which I am also aware of as I stay here in Meerut! What a crowning irony that still UP has least benches in India and no wonder figures in bottom of Justice Index List and same is the case with Bihar! This despite the irrefutable fact that Justice Jaswant Singh Commission had historically recommended 3 High Court Benches for UP but not a single created for UP even though Benches were created for other states like Maharashtra in Aurangabad, Madurai in Tamil Nadu and Jalpaiguri in West Bengal! This is the real rub! The 230th Law Commission Report made in 2009 recommended for more high court benches not just for Maharashtra or Karnataka alone but for big states like UP and Bihar also but Centre is clearly culpable for not doing anything on this score for which it must hang its head in shame as it is not ready ever to do anything on this score! This case is the biggest testimony and biggest reminder that a major surgery of our decrepit, overburdened and moribund judicial system that exists especially in UP and Bihar is the crying need of the hour and it cannot be put in cold storage any longer! How long will the most populated State that is UP and Bihar be taken for granted? How long will the just demand for more High Court Benches still be ignored by the Centre? This alone explains why Rahul Gandhi terms people of South more mature as we saw how in Karnataka two more High Court Benches were created for Dharwad and Gulbarga for just 4 and 8 districts just because Centre could not resist their unrelenting pressure whereas on contrary for more than 20 districts of West UP not a single Bench is being created even though Justice Jaswant Singh Commission had recommended the same! What can be a bigger shame and more despicable than this which is the worst violation of Article 14 which talks about right to equality! A single High Court Bench for UP was created by Jawaharlal Nehru in 1948 in Lucknow just 200 km away from Allahabad where High Court is located but no PM dares to create even a single Bench in any hook and corner of UP other than Lucknow! This is the real tragedy! Even holy cities like Kashi, Ayodhya and Mathura which is also in West UP are considered “worthless cities” not fit to be given a High Court Bench! This is what pinches me most! Centre’s conduct on this key issue of creating more Benches in UP and Bihar is most deplorable, despicable and dangerous which cannot be justified under any circumstances! It is high time and Centre must act but till now Centre has chosen to emulate the past government’s dastardly stand on this which is most hurting to say the least! Most shocking!
Postscript: Even as I am writing this news is pouring in that goons who first had misbehaved with a girl later killed her father openly in Hathras in West UP after coming out from jail. Such instances are galore. The lawyers of 22 districts of West UP are still on strike since last many days which will continue till March 9 as a senior and eminent lawyer named Omkar Singh Tomar whom I knew as a very warm person always carrying a smile on his face had committed suicide in Meerut under suspicious conditions. When will Centre act? When will it wake up?
NEW SOCIAL MEDIA CODE AND THE BIRTH OF A NEW REGIME OF INTERMEDIARY LIABILITY
On 26 February 2021, the Ministry of Electronics and Information Technology (MeITY) proposed the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 for social media platforms, OTT services and digital media. The Code is a reinforcement of the Information Technology (Intermediaries Guidelines) Rules, 2018 wherein the regulation of social media companies has been strengthened making them more accountable for content on their platforms. The most debated provision of the new code has been the categorisation of media intermediaries and the birth of the ‘responsibility-liability’ regime of intermediaries.
The proposition of intermediary liability is not new, in the past, a scandal involving the sale of a pornographic clip on Baazee.com (now ebay.in) and the subsequent arrest of the company’s CEO led to the creation of a committee to re-evaluate the Information Technology Act. The committee recommended that intermediaries must do their ‘due diligence’ in order to receive immunity, which was accepted by the government. Also, the Supreme Court has in Shreya Singhal v. Union of India and My Space Inc. v. Super Cassettes Industries Ltd., acknowledged the concept of actual and specific knowledge and observed that intermediaries can be held liable if they have actual or specific knowledge of the existence of infringing content on their website from content owners and despite such notice, they do not take down the content. For these reasons, the Information Technology (Intermediary Guidelines) Rules, 2011 was introduced to create more accountability on the part of intermediaries.
In 2018, the intermediary liability rules were reconsidered and it was triggered by the misuse of social media by criminals and anti-national elements. Digital platforms have failed to proactively deal with cases that led to misuse of data and free speech majorly owing to their enormous size. There is harmful content on various platforms from fake news to child pornography. More recently, Twitter Inc. permanently banned former U.S. President Donald Trump’s account alleging that he had been breaking the rules against glorifying violence, manipulating media and sharing unsubstantiated information regarding the U.S. elections.
The need for stringent laws with regards to the liability of social media platforms in India escalated after the incident of Farmer’s protest taking a violent turn on 26th January 2021. The MeITY directed Twitter to take down accounts that used incendiary hashtags during the violence however, the company did not comply with it and the ministry said that the platform had to adhere to the authority’s directions and non-compliance will lead to criminal charges against the platform.
The Information Technology Act, 2000 along with the Intermediaries Guidelines, 2011 provided a safe harbour for the Intermediaries in India however, a need has been felt for content curation and also holding intermediaries liable for content published on social media platforms. The term “intermediary” has been defined under Section 2(w) of the IT Act as “any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, web-housing service providers, search engines, online payment sites, online auction sites, online market places and cyber cafes.”
The role of an intermediary is not to create information, but to receive, store and transmit it. The safe harbour protection under the IT Act applies only to “passive intermediaries”. The Delhi High Court in Christian Louboutin SAS v. Nakul Bajaj and Ors. held that as long as intermediaries are mere conduits or passive transmitters of the records or of the information, they continue to be intermediaries and they should not be “active participant”.
The Information Technology Act, 2000 is the primary legislation dealing with the liability of intermediaries for content generated by third parties. The act was amended in 2008 to include safe harbour under section 79 of the act and also to amend the definition of intermediaries. Thereafter, the intermediary guidelines, 2011 were introduced to incorporate due diligence in pursuance of the rules stated therein, in order to claim safe harbour protection under the IT Act. The IT Act and the Intermediaries guidelines, 2011 were to be read in consonance with each other.
The intermediaries do not create the content available on their platform, they merely act as a bridge between the content creators and consumers. The traditional point of law was based on the nation that intermediaries cannot be held liable and accountable for everything posted by any third party considering the vast amount of data produced every day. Another point of technical concern was the impossibility to track every act that qualifies as harmful or controversial.
The Supreme Court in Shreya Singhal case has also observed that “it would be very difficult for intermediaries like Google, Facebook etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not.” Similarly, in the case of Kent Ro Systems Ltd & Anr vs Amit Kotak & Ors, the Court observed, “to require an intermediary to do screening would be an unreasonable interference with the rights of the intermediary to carry on its business.”
The new code provides that intermediaries will have to proactively monitor and filter their users’ content through appropriate mechanisms, and be able to trace the originator of questionable content to avoid liability for users’ actions. It also distinguishes between a significant and a regular social media intermediary as per their user traffic. Social media companies will have to establish a proper Grievance Redressal Mechanism to deal with user complaints. Further, the platforms will have to disclose the first originator of a mischievous tweet or message as the case may be. Additionally, intermediaries are required to provide assistance to government agencies, who must clearly state in writing or electronic means the purpose of seeking such information within 72 hours. Upon notification, an intermediary will have 24 hours to remove or disable unlawful content.
Section 79(1) of the IT Act grants safe harbour protection to the intermediaries for any kind of third-party content. This section grants an immunity to the intermediary irrespective of the content under the due diligence doctrine. Section 79(2) provides that the immunity is afforded upon an intermediary who has neither knowledge nor control over the information transmitted or stored. They are under a mandate to remove any content under a ‘notice and takedown’ regime as per Section 79(3). It requires an intermediary to remove information that does not adequately fulfil the test of being lawful upon receiving “actual knowledge”. However, according to Rule 3(4) Intermediary Guidelines, 2011, the intermediary can be made directly liable for its inability to remove the unlawful content which was being stored and perhaps transferred through its platform.
In Europe, legal discourse to address misinformation and disinformation began with the 2017 EU resolution on “Online Platforms and the Digital Single Market”. This later formulated into a High-Level Group to “advise on policy initiatives to counter fake news and the spread of disinformation online”. In turn, this facilitated the “Action Plan Against Disinformation,” and eventually in 2018, Codes of Practice on Disinformation, a voluntary self-regulatory commitment comprised of “signatories” representing multiple high profile technological companies was developed. While these codes provide helpful principles and guidelines, they are self-regulatory and voluntary and not legally binding measures.
The rules of the new code make it mandatory for a ‘significant social media intermediary’ that provides information primarily in the nature of messages (such as WhatsApp or Twitter) to enable the identification of the “first originator” of the information. This is a move aimed at tracking down people who indulge in circulation of fake news or carry out illegal activities, however, this will require the companies to break end to end encryption provided to the users. Such a requirement can affect user experience in India, by exposing users to cybersecurity threats and cybercrimes. The exposition of the “first originator” also brings in serious questions on the right to privacy.
The right to privacy is founded on the autonomy of the individual. The Apex Court in K.S. Puttaswamy case held that the right to privacy is a fundamental right. Moreover, one of the major concerns in India is the lack of a Data Protection law and it still being in the pipeline there is no mechanism to protect personal data. In such a scenario, protection of personal data being an intrinsic right under Article 21, it becomes the most vital duty of protecting the right in question in absence of proper legislation to that effect.
It is also pertinent to note that, section 69(1) of the IT Act already empowers the Central and State government to intercept, monitor or decrypt any information through computer resource only for the reasons provided under Article 19(2) of the Indian Constitution. Further, Section 69A allows the Centre to issue directions for blocking public access of any information through any computer resource.
Union Minister Ravi Shankar Prasad at the press conference while introducing the new Code reiterated that the right to internet is not a fundamental right itself, but it is a fundamental mechanism to realise other fundamental rights enshrined under Part III of the Constitution. This structure enables the Government to take substantial measures to proportionately and legitimately regulate the mechanism. While concerns have been raised on issues like decrypting end-to-encryption, the privacy of users and non-consultation with the stakeholders, these issues are expected to be resolved with the policy coming into the implementation stage. Considering the socio-economic impact of digital technologies, with a specific legislative mechanism in place, the new legal framework will ensure enforcement of rule of law and lead to a balanced digital ecosystem.
Energy sector, laws and Budget 2021-22
The Budget has also announced strategic disinvestment of public sector enterprises with an objective of minimising presence of the CPSEs to create a new space for private sector investment and has classified various sectors as strategic and non-strategic. The power sector has been classified as a strategic sector and it is proposed that it will have bare minimum presence of CPSEs and the remaining CPSEs will be privatised, merged with other CPSEs or closed.
The 2021-22 Budget tabled in the Parliament by the Finance Minister, Nirmala Sitharaman, has received a mixed response from stakeholders in the energy sector. While the massive outlay for revamping the power distribution sector was lauded across the board, the response to the Budget proposals from the renewable energy sector was not too enthusiastic.
The industry is positive about the Budget outlays for Solar Energy Corporation of India (SECI) and Indian Renewable Energy Development Agency Limited (IREDA).
Some of the key proposals in the Budget include:
• 3.05 trillion (~$41.92 billion) outlay for a revamped reforms-based result-linked power distribution sector program over five years
• Infusion of additional capital of Rs.10 billion (~$137 million) in SECI and Rs.15 billion (~$205.6 million) in IREDA
• Increase in customs duty on solar inverters from 5% to 20% and on solar lanterns from 5% to 15% to encourage domestic production
The finance minister also said that a phased manufacturing plan for solar cells and solar modules would be announced soon to build up India’s solar capacity.
In Budget 2020, an allocation of Rs.220 billion (~$3.08 billion) went to the power and renewable sector.
Some of the major budget outlays in the power sector include the Rs.26 billion (~$356 million) for solar power and Rs.11 billion (~$150 million) for wind power. The largest outlay was for the Integrated Power Development Scheme (IPDS), which received a whopping $53 billion (~$724 million). One of the main programs of IPDS is smart meter installations.
The Union Budget of 2021-22 has been met with a general sense of optimism but also a few reservations. One such review is that is that the budget is public sector centric and the private sector has largely been left to fend for itself. Whilst participants in the power sector may have even more reason to justify this sentiment, there have been certain welcome announcements. It will be crucial to see how these measures are implemented.
The key announcements are as follows:
DISCOM reform has been identified as a major agenda item for the present Government and has seen significant focus. It has been proposed that a revamped reforms based result linked power distribution sector scheme will be launched with an outlay of INR 3,05,984 crores over a period of five years to provide assistance to DISCOMS for infrastructure creation including pre-paid smart metering and feeder separation, upgradation of systems which are connected with financial improvements. This is a welcome step to curb mounting aggregate technical and commercial losses (AT&C Losses).
The Finance Minister has also proposed that a framework will be put in place to give consumers the power to decide their choice of supply from among more than one distribution companies (DISCOMS). As a large number of DISOMS are state owned, monopolistic and strapped of liquidity, these distribution utilities are ineffective in ensuring round the clock supply of power to consumers.
If implemented well, this could be a first (and major) step in introducing competitiveness and thus forcing DISCOMS to focus more on the needs of the final consumer. However, it is unclear how this move would and could be implemented at the individual consumer level. Extensive infrastructure development along with co-ordination and co-operation would be required not only with the supply chain, but also amongst DISCOMS in order to implement this on a meaningful scale.
It would be remiss not to mention here that there are massive outstanding regulatory assets. Despite the provision of a liquidity package infusing INR 1.2 lakh crore which helped at reducing systemic stress over the DISCOMS, the financial viability of DISCOMS is still a serious concern as has also been highlighted in the budget speech. The high regulatory assets/liabilities of DISCOMS has also been a major issue with respect to attracting private investment in the distribution sector, and attempts to privatise DISCOMS in the Union Territories have not seen major progress.
Although, the proposals in the Budget are a step in the right direction to promote competition in the sector and provide relief to the consumers, it will be important to see what impact this move could have on the financial position of DISCOMS. There is a concern that in the current status of things, such state owned or debt ridden DISCOMS are being set up for failure.
Perhaps, the renewables sector will feel most let down by this budget. Not only have the asks of the sector not been addressed but some of the existing benefits have also been taken away. A critical and unwelcome change in this regard relates to the custom duty for items of machinery, instruments, appliances, components or auxiliary equipment (including those required for testing and quality control) for setting up of solar power generation projects, which was capped at a 5% ad valorem rate previously. This exemption has been taken away. Developers would now be burdened by the increased costs of import and this would also lead to litigation under the power purchase agreements for change in law claims (adding to the burgeoning list including safeguard duty, GST et al).
Nevertheless, the announcement of the ‘Hydrogen Energy Mission’ (generating hydrogen from green sources) and the announcement of additional capital infusion into Solar Energy Corporation of India (Rs 1000 Crores) and Indian renewable Energy Development Agency (Rs 1500 Crores) are a few welcome measures in relation to an otherwise damp budget for the renewables sector.
‘Minimum Government and Maximum Governance’ is one out of the six pillars for this budget under over which it has been proposed by the government that in order to promote ease of doing business for those who deal with government or central public sector enterprises (CPSEs) and carry out contracts, a conciliation mechanism for quick resolution of contractual disputes will be set up. It is however unclear whether such a mechanism will be extended to disputes with DISCOMs, which are predominantly state owned and how such a conciliation mechanism will co-exist with the prevailing contractual and regulatory mechanism available to the participants of the sector. The key to the success of any such mechanism would depend on the relevant institution/authority having adequate non-governmental participation as resolution professionals and not showing any tendency to subscribe to the view of the government and the efficacy. Given past experiences, it would be difficult to win over the trust of the private sector in any such government driven conciliation and therefore this would have to be time tested in order for it to bring any considerable reform to the sector.
FUNDING STRUCTURES AND DISINVESTMENT
The budget has also announced strategic disinvestment of public sector enterprises with an objective of minimising presence of the CPSEs to create a new space for private sector investment and has classified various sectors as strategic and non-strategic. The power sector has been classified as a strategic sector and it is proposed that it will have bare minimum presence of CPSEs and the remaining CPSEs will be privatised, merged with other CPSEs or closed. This appears to be a conducive step towards reform in the sector which is dominated by public sector enterprises, however in order to attract private sector investment the government has to work towards resolving the debt situation of the DISCOMS and generally ease the regulatory burden on entities in the sector.
An asset reconstruction company is being proposed to be set up, essentially as a “bad bank”, to take over stressed debt of the public sector banks, then manage and dispose of the assets to AIFs and other potential investors. This will go a long way in managing the non-performing status of several power sector debts and potentially rejuvenate several stalled projects.
Another welcome suggestion is the setting up of a development finance institution (DFI), the National Bank for Financing Infrastructure & Development (NaBFID). The intention is to reduce the burden on banks which are struggling to provide liquidity to the power sector, as well as to be able to raise long term capital at low rates from the international market. NaBFID will however face quite a few challenges, not least the continued lack of maturity of the corporate debt market and the problem with identifying a sustainable source for long-term funds.
Additional relaxations have been made for InVITs, including allowing FPIs to invest in debt instruments issued by InVITs and a proposal that dividends from project companies to the InVIT will be exempted from taxation.
In the previous budget, the Government had provided a tax exemption for sovereign wealth funds and pension funds investing in infrastructure. This was subject to certain conditions which were difficult to meet. The present budget proposes to ease some of these restrictions including the prohibition on private funding, prohibition on loans and borrowings and restriction on commercial activities and direct investment in infrastructure. The ability to attract long term funds in infrastructure is a critical aspect for continued growth and these changes should be crucial from this perspective.
RATIONALISATION OF PROVISIONS RELATING TO SOVEREIGN WEALTH FUNDS OR PENSION FUNDS
Traditionally, investments in the infrastructure or energy sector are made using a non-operating holding company structure, which, in turn, holds investments in power generating SPVs. In line with the stated intent and objective of the exemption, it is now proposed that the benefit of tax exemption is proposed to be extended to sovereign wealth funds or pension funds making investments in an Indian non-operating holding company or NBFC, registered as infrastructure finance company or infrastructure debt fund which, in turn, makes investment in wholly-owned subsidiaries, joint ventures, or SPVs carrying on specified infrastructure projects. Further, there is a relaxation of condition from 100% investment in eligible infrastructure company, to 50% investment in an eligible infrastructure company. Apart from this, certain additional amendments have been proposed to remove the difficulties faced by these funds in meeting the condition required for seeking tax exemption.
No TDS on dividends paid to a business trust by the special purpose vehicle
While the dividends paid to a business trust by the special purpose vehicle are exempt under the existing tax provisions, the withholding tax provisions did not provide any specific exclusion for not withholding the tax when making dividend payouts to business trust. This lacunae has now been plugged by inserting a second proviso to Section 194 of the Act, to exclude the applicability of withholding tax on dividend paid to business trust.
Expanding TDS provisions on purchase of goods by energy players
While the previous Budget introduced TCS provisions on sale of goods, this Budget has proposed to replace the same with tax deduction on purchase of goods @ 0.1% subject to conditions prescribed. Hence, the liability to deposit taxes has been shifted to energy companies making payments towards the purchase of equipment / goods, subject to satisfaction of other conditions. The amendment may create unintended litigation in future, especially on composite contracts which may be subject to TDS under other provisions of the Act at a higher rate.
Also, higher tax rate is proposed for specified persons who have not filed income tax returns in earlier 2 years for which time limit of filing the tax return is already expired and taxes are more than INR 50,000 in each of these years. This would put an additional burden on energy players to obtain additional documentation from payees while deducting the taxes, while making payments.
GOODWILL NO LONGER A DEPRECIABLE ASSET
The contentious issue on whether goodwill is a depreciable asset has now been put to rest by amending the relevant tax provisions to state that goodwill is not a depreciable asset and would not be eligible for depreciation under Section 32 of the Act, thereby, overriding the SC decision in this context. Further, if this acquired goodwill is transferred, then appropriate long-term or short-term capital gains would be levied after deducting the cost paid in this regard.
This amendment may act as a deal breaker, wherein acquiring company would now not be eligible for tax deduction (by way of depreciation) on the excess consideration paid. Also, it would be interesting to note that the aforesaid amendment though prospective in nature, may prompt tax authorities to contend to deny the depreciation benefit to earlier years as well.
Advance Tax applicable on dividend income only on declaration /payment basis.
With the abolition of DDT, shareholders were made liable to pay tax on such dividends. However advance tax was applicable on such dividend income. Considering this genuine hardship, the advance tax requirement on dividends (other than dividend under Section 2(22)(e)) is now applicable only on declaration or payment basis.
PROCEDURES FOR REOPENING OF ASSESSMENTS REVAMPED
With the advent of the technology and integration of information from all reporting agencies, the government has realised that it is now far more simpler to track down the income escapement cases. Therefore, the Budget has revamped the reopening provisions and reduced the time limit from the current 6 years to a period of 3 years. Further, in case of serious income escapement exceeding INR 50 lakhs or more in a year, the reopening may happen up to a period of 10 years after prior approval. However, considering the income escape limit, in a way, this amendment would now provide the reopening up to 10 years (unlike 6 years in earlier regime). Also, a notice would be issued before reopening the assessment to provide the opportunity of being heard and order in this regard would be passed by the assessing officer before initiating the assessment.
The other amendments covered reduction in the time limit for filing revised and belated tax returns, completion of assessments, faceless ITAT appeals and revamping the AAR. Few key demands of power sector such as concessional withholding tax rates for Indian ECBs, relaxations in thin cap provisions etc. remained unmet. Holistically, this Budget had more to do with clarificatory and compliance-oriented amendments.
In conclusion, the budget announcements for the coming financial year have placed strong emphasis on revival of the public sector in India, however in respect of the power and energy sector the government could have introduced more systemic reforms like tax consolidation schemes for large energy projects, relaxations in indirect taxes, incentives for renewables etc. Overall, for the time being, it appears that all the eggs for the sector continue to be placed in one basket of the “Electricity (Amendment) Bill 2020” (Bill). The Bill has seen opposition from power sector workers and is also one of the items of protest under the current farmers agitation. In the backdrop of the current budget, it becomes even more critical that the government shows political will to pass this legislation on a fast track basis, to ensure meaningful reforms in the sector. As regards the budget, the effectiveness of the positive announcements made in the budget will depend on the will of the public sector enterprises to implement or exploit these changes until such time that the Bill is made into law.
Exception of customary divorce under Hindu Marriage Act not attracted in absence of declaration from civil court regarding its validity: Calcutta High Court
The sum and substance of this judgement is that merely obtaining a customary divorce will certainly not attract the exception envisaged under Section 29(2) of the Hindu Marriage Act. It merits no reiteration that for Section 29(2) of the 1955 Act to be invoked, it has to be established by the party relying on a custom that the right of the party was recognised by custom to obtain the dissolution of a Hindu marriage.
In a recent, remarkable, righteous and rational decision titled Smt. Krishna Veni Vs The Union of India and others in WPA No. 2346 of 2018 delivered on February 18, 2021, the single Judge Bench of Justice Sabyasachi Bhattacharyya has held that merely obtaining a customary divorce will not attract the exception envisaged under Section 29(2) of the Hindu Marriage Act. It has been made absolutely clear that the validity of such a divorce has to be established by a deed of declaration. Very rightly so!
To start with, the ball is set rolling in para 1 of this notable judgment wherein it is put forth that, “The present challenge has been preferred by Smt. Krishna Veni, the second wife of Sardar Natha Singh (since deceased), who was a freedom fighter getting pension from the Central Government under the Swatantra Sainik Samman Pension Scheme, 1980 till his demise on August 25, 1984. The petitioner, relying on a deed of declaration of divorce, purportedly executed by respondent no.11, the first wife and Sardar Natha Singh, the husband of the petitioner, claimed widow pension under the said Scheme, which was refused by a communication dated March 6, 2012 issued by the Assistant Secretary to the Government of West Bengal on the ground that such deed of divorce dated December 19, 1956 was not acceptable under the Hindu Marriage Act, 1955, in the absence of a decree for divorce obtained from a competent court of law.”
To put things in perspective, it is then laid down in para 10 that, “For Section 29(2) of the 1955 Act to be invoked, it has to be established by the party relying on a custom that the right of the party was recognized by custom, to obtain the dissolution of a Hindu marriage. In the present case, the petitioner did not approach the civil court for declaration regarding validity of the divorce deed.”
As it turned out, the Bench then states in para 11 that, “There was nothing to prevent the petitioner from approaching the competent civil court for such declaration. The burden and initial onus lies on the petitioner to prove the existence of a custom having the force of law, to be proved by evidence – oral or documentary – in order to attract the benefit of Section 29(2) of the Hindu Marriage Act.”
Needless to say, it is then stated in para 12 that, “Section 2(1)(b) of the Hindu Marriage Act, 1955 stipulates that the Act applies to Sikhs as well. Thus, the provisions of the Act, including Section 13 thereof (pertaining to divorce), applies to Sikhs in general. Admittedly, the petitioner, respondent no.11 and their deceased husband are/were Sikhs by religion. Hence, the marriage between the respondent no.11 and her deceased husband could only be dissolved by a decree of divorce passed by a competent court on any of the grounds as mentioned in Section 13 of the Act, unless the existence of any contrary custom was proved by evidence.”
Be it noted, it is then pointed out in para 13 that, “. In order to justify an exception to Section 13 within the purview of Section 29(2), the petitioner had to approach a civil court and establish by evidence that the dissolution of the marriage between the respondent no.11 and her deceased husband was recognized by custom. All Sikhs do not come within the purview of such exception, unless any custom to the contrary is proved by cogent evidence. The respondent-authorities do not have the jurisdiction in law to decide the matrimonial status of the private parties and/or the validity of the deed of declaration, which could only be done by adduction of adequate evidence before a civil court. Unfortunately, neither does the writ court, with its constraints in taking evidence on disputed questions of fact, has the scope to decide such issue.”
While elaborating further along with the relevant case law, it is then envisaged in para 14 that, “In Gurdit Singh (supra), the Supreme Court was dealing with an issue which arose in a civil suit. The trial court had decreed the marriage-in-question to be valid. The appellate court reversed such decree on the premise that the marriage between the parties was invalid, being not justified by any custom. Upon the issue being remitted to the trial court, after giving the parties an opportunity to lead further evidence, the trial court answered the issue regarding the existence of such custom in the negative, which was endorsed by the appellate court. In second appeal, the High Court held that a custom was proved under which Mst. Angrez Kaur, respondent could validly marry Sunder Singh, even though her first husband was alive. While considering such matter, the Supreme Court observed that the witnesses examined on behalf of the appellant had admitted the existence of a custom permitting the Hindu husband to divorce his wife. Upon such premise, the Supreme Court proceeded to endorse such view.”
While citing yet another relevant case law, the Bench then observes in para 15 that, “ In Balwinder Singh (supra), the matter in issue before the Supreme Court also arose from a civil suit, wherein the trial court declared the marriage solemnized between the parties in accordance with Hindu rites and ceremony as null and void and granted a decree of nullity of marriage. The appellate court had found that the evidence adduced by the appellant was not sufficient and reliable enough to establish the existence of the custom amongst the Sikhs Jats of District Amritsar to which District the appellant and its parents belonged, under which the marriage between the appellant and his previous wife could be dissolved otherwise than through court as per the provisions of the Hindu Marriage Act.”
It would be pertinent to mention that it is then stated in para 16 that, “While dealing with such question, the Delhi High Court considered the evidence adduced by the parties and sanctioned the dissolution of marriage by execution of a deed of divorce.”
Simply put, it is then mentioned in para 17 that, “The Andhra Pradesh High Court, in Doddi Appa Rao (supra), was also considering a case where a civil court had decreed a suit for declaration that the marriage of the plaintiff and the defendant therein was dissolved as per caste custom and usage. In such context, it was held by the Division Bench of the Andhra Pradesh High Court that the Central Administrative Tribunal ought to have honoured such decree.”
It would be useful to also note that it is then specified in para 18 that, “In G. Thimma Reddy (supra), the learned Single Judge considered several factors apart from the registered deed of divorce, including that the factum of divorce was disregarded on a flimsy ground that the stamp affixed to the document of divorce was in the name of a wrong person. The court also took into consideration the fact that the spouses were living separately and in possession of lands settled in their favour, for which no need for divorce was there. Oral evidence was also adduced by several witnesses, one of them a caste elder who had also attested the document. P.Ws 1 to 3 therein spoke of existing custom in the caste of the spouses sanctioning such divorce. Moreover, the adjudication in the said report was in the context of a land dispute between the parties.”
As a corollary, it is then pointed out in para 19 that, “As such, in each of the judgments cited by the petitioner, a valid decree, sectioning the respective documents of divorce, had been passed by competent civil courts. In the present case, however, no such decree was obtained by the petitioner.”
In addition, it is then also brought out in para 20 that, “That apart, it is pleaded by the writ petitioner herself that the Government of India, Ministry of Home Affairs, New Delhi, sanctioned payment of political pension to the first wife, that is, respondent no.11 with effect from August 26, 1984 by a letter dated February 14, 1986 and Pension Payment Order was issued accordingly in favour of respondent no.11. For whatever reason such pension might have been withheld subsequently, the initial grant of pension to respondent no. 11 is an endorsement of the fact that the first wife was found eligible for such pension by the respondent authorities and she had already started getting pension.”
Perhaps more crucially, it is then elaborated in para 21 that, “It is relevant to mention here that a suit-in-question was filed by respondent no.11, inter alia, for declaration that she was the only married wife and the only widow of Sardar Natha Singh (since deceased) and was entitled to widow pension and that the present petitioner was not the wife and widow of Sardar Natha Singh. Learned counsel for the petitioner argues that the said suit was dismissed for default and the subsequent restoration application filed by respondent no.11 met with the same fate. As such, it is contended that respondent no.11 is debarred from raising the contentions on which declaration was sought by her in the dismissed suit.”
To state the obvious, the Bench then notes in para 22 that, “Order IX Rule 9 of the Code of Civil Procedure debars a plaintiff from bringing a fresh suit in respect of the same cause of action in the event of dismissal of a suit for default. However, it is well-settled that such a dismissal, ipso facto, would not take away the right of the plaintiff which was under consideration in the suit. Such right, if available otherwise to the plaintiff in accordance with law, subsists despite the dismissal of the suit for default. The plaintiff in such a suit may very well raise a defence on the basis of such right in a different suit or legal action and/or may agitate the same right in a suit filed by her on a subsequent cause of action.”
Of course, it is then rightly stated in para 23 that, “Thus, in the present case, the dismissal of the suit of respondent no.11 for default does not preclude the said respondent from staking her claim before any authority other than a civil court, that too in a suit filed by her on the self-same cause of action, and/or setting up a defence in the writ petition on the basis of such claim.”
Most significantly, it is then aptly observed in para 24 that, “In the utter absence of any evidence, let alone conclusive, that the divorce decree executed purportedly between respondent no.11 and her deceased husband was endorsed by any valid custom, the exception envisaged in Section 29(2) of the 1955 Hindu Marriage Act would not be attracted. Thus, the spouses had to revert back to Section 13 of the Act, which sanctions dissolution of marriage only by a decree of divorce, for the dissolution of marriage to be valid in the eye of law.”
What’s more, it is then also pointed out in para 25 that, “Such facts, coupled with the fact that pension was granted earlier in favour of respondent no.11 upon a valid sanction being issued by the respondent-authorities, it would be unjust to deprive respondent no.11 from such pension at the behest of the petitioner, merely on the basis of the petitioner’s assertion on oath in this writ petition that a deed of divorce, supported by valid and recognized customs, was executed between respondent no.11 and her deceased husband.”
As was anticipated, the Bench then goes on to add in para 26 that, “ I must note that, in view of the long-pending litigation between the private parties, it would be lucrative to direct pension to be paid equally between the petitioner and respondent no.11. However, such a course of action would be grossly illegal. Although my empathy goes fully with the petitioner, who is an unemployed lady of about 63 years as per her own affidavit, this court does not have the power to enact law but is bound by the provisions of law as the Parliament, in its wisdom, chose to promulgate. Where a conflict arises between individual conscience of the concerned Judge and judicial conscience, supported by law of the land, the former has to give way to the latter.”
Now coming to the concluding paras. It is held in para 27 that, “In such view of the matter, the writ petition fails. Accordingly, WPA No.2346 of 2018 is dismissed on contest without any order as to costs.” Finally, it is then held in the last para 28 that, “Urgent certified copies of this order shall be supplied to the parties applying for the same, upon due compliance of all requisite formalities.”
To conclude, the sum and substance of this noteworthy judgment is that that merely obtaining a customary divorce will certainly not attract the exception envisaged under Section 29(2) of the Hindu Marriage Act. It merits no reiteration that for Section 29(2) of the 1955 Act to be invoked, it has to be established by the party relying on a custom that the right of the party was recognized by custom to obtain the dissolution of a Hindu marriage. Very rightly so!
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