INTRODUCTION: SECTION 45 AND THE LEGISLATION’S HISTORY
On the 4th of August 1998, the Government of India tabled the Prevention of Money Laundering Bill 1998 in Parliament, in response to rising concerns about a rise in transnational economic offenses and a lack of effective national legislation to combat organized crime and its consequences.
On January 17, 2003, the ‘Bill’ obtained the President’s assent and became the Prevention of Money Laundering Act, 2002, which went into force on July 1, 2005.
Since its inception, the Act has been revised five times, the most recent being in 2019.
The Act, which is divided into 10 chapters and 75 parts, is designed to combat money laundering and to provide for the confiscation and seizure of property derived through laundered funds or any other money laundering issue in India.
However, the Act has remained exceedingly complex and contentious since its creation, particularly when it comes to arrest and the granting of bail to a person indicted under the Act.
BOMBAY HIGH COURT’S PROBLEMATIC APPROACH
“Since the entire complexion of section 45 has been changed as a result of the modification, we are not in accord with the notion that the entire section must be re-enacted by means of amendment following the judgement in the matter of Nikesh Shah,” the HC said (of the Supreme Court in 2017).
The question now is whether this revision would restore the twin requirements’ legality, and whether an accused charged with an act under the Act will still be required to meet the rigors of the “twin condition” despite the Supreme Court’s decision in Nikesh Tarachand Shah.
The phrases “punishable for a period of imprisonment of more than three years under Part A of the Schedule” were substituted with the words “under this Act” in the 2018 Amendment.
The goal of this modification was to change the foundation of the Nikesh Tarachand Shah decision by having Section 45(1) bail pre-conditions apply to all offences under the PMLA, not only “scheduled offences.”
The Supreme Court has also been asked to rule on this change.
IS THE 2018 CHANGE TO THE PMLA’S BAIL REQUIREMENTS CONSTITUTIONAL?
Does it cast doubt on Nikesh Tarachand’s (2017) decision?
The HC, however, decided in Vinod Bhandari vs. Assistant Director, Directorate of Enforcement that, notwithstanding the definitional change, S. 45(1)(ii) of the Act has not been revived.
BAIL, NOT IMPRISONMENT
Bail dates back to the Middle Ages, when the Magna Carta was established and recognized as the cornerstone of individual liberty. It has been constantly observed throughout India since then.
“No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled or deprived of his standing in any other way, nor will he be proceeded against with force, except by the lawful judgment of his equals or by the law of the land,” according to Clause 39 of the Royal Charter of the Magna Carta.
The presumption of innocence is a cornerstone of our criminal justice system, with origins in Article 21 of the Indian Constitution.
“Bail is the rule, while incarceration is the exception,” the Supreme Court has stated in various decisions.
Because all accused individuals have the presumption of innocence, they may be granted the chance to handle and defend their own case.
THE LAW OF DETENTION
Section 19 of the Act gives the investigating agency/ED the authority to arrest anyone suspected of money laundering.
It stipulates that there must be’reason to think’ that the accused individual is ‘guilty’ of the offense of money laundering based on the evidence gathered during the inquiry, and that the’reason to believe’ must be’recorded in writing’ before an arrest is made.
The main difference between arrest under PMLA and arrest by police under Section 41 of the Cr.P.C. is that arrest under PMLA has been elevated by the Legislature and requires evidence to form a’reason to believe’ that the person is ‘guilty’ of the offenses under PMLA, whereas an arrest by police can be made on’mere suspicion.’
What if an accused claims that no further evidence exists, but the I.O. believes or claims that other evidence exists and must be given up before the accused is granted bail?
Would a court be convinced in such a scenario to detain an accused in judicial custody indefinitely until the deadlock is resolved?
Despite the express ruling in Nikesh Tarachand, the amendment has once again brought the issue of the application of dual criteria to the forefront.
The proponent of this provision might claim that the twin criteria were only applicable to certain offences in Part A of the Schedule previous to the modification.
This has been corrected as a result of the change, since the court can now use this clause for offenses “under the act.”
As a result, the intelligible differentia argument can be disproved.
Proponents might also disagree over the ‘rational nexus’ that should be attained for the PMLA’s object to be enforced.
However, these arguments are superfluous.
Firstly, the provision completely ignores the fundamental problem of the twin conditions which inverse the ‘presumption of innocence’, contrary to the principles enunciated under the criminal jurisprudence. Individual liberty, if not checked by the judiciary, can become flickering candlelight in the hands of legislature and executive. This provision has the potential to curtail the liberty of an accused person. To glamorise chimerical provisions based on the scheme to tackle the menace of money laundering and confiscation of proceeds of crime would be devoid of fundamental values characterised by the forefathers of the constitution. After all, the concept of liberty of an individual is fundamental, which can only be eclipsed by ‘procedure established by law’. However, this too has undergone a sea-change via incorporating ‘reasonableness’ in its jurisprudence. The ‘due process of law’, albeit not enshrined directly, has echoed indirectly in the developed jurisprudence surrounding individual life and liberty. Therefore, it is desirable that such provision should be subject to basic principle and not improvised brevity draped or at whims of the legislators.
Secondly, this provision leads to an incongruous position regarding ‘anticipatory bail’ and ‘bail’ per se. Suppose, a person ‘A’ seeks an anticipatory bail on the same offence as compared to a person ‘B’ who seeks a bail, then ‘A’ will not have to satisfy the twin conditions. Thus person ‘A’ can go scot-free without having satisfied the twin conditions of S. 45. PMLA fails to solve this incongruity, and this would tantamount to treating unequal as equals.
Thirdly, the judicial determination through this provision can start the cascading effect on the final outcome of the case when the case is heard at the merit stage. Even though the bail stage is confined to preliminary determination, this provision necessarily allows the court to decide on the prima facie guilt of an accused. PMLA, by its nature, relies on the other predicate offence, this translate into a dual finding of the court. For the sake of argument from the other side, one might argue that the findings at the bail stage bear nothing on the final outcome at the trial stage. Nevertheless, courts cannot overlook the earlier decided matter at the bail stage (arguably by SC or HC), and thus can seriously compromise the judicial infallibility while deciding on such matter.
Several HCs have deliberated on the question whether the re-framing of S. 45 of the PMLA has revived and possibly resurrected the twin conditions under sub-Section (1) of S. 45 for granting bail. The HCs, in Upendra Rai vs. Directorate of Enforcement, Dr.Vinod Bhandari Vs. Assistant Director, Directorate of Enforcement, Sameer M. Bhujbal v. Assistant Director, Directorate of Enforcement (Bail Application No. 286/2018), have answered negatively about the applicability of S. 45 of PMLA. The HCs have relied on Nikesh Tarachand and reiterated the SC position by stating that “Provisions akin to S. 45 have only been upheld on the ground that there is a compelling State interest in tackling crimes of an extremely heinous nature.” Thus, the courts have distinguished the offence under PMLA to those committed under other special laws such as TADA, NDPS, MCOCA etc. In the event, when offence under PMLA is not equated with other heinous offences, it has correctly been held by the HCs that merely amending the provision has not revived the twin conditions of S. 45. Interestingly, the SC in P. Chidambaram v. Directorate of Enforcement categorically held that only considerations required to be considered for the adjudication of the appeal relating to grant of bail to the appellant, are those given u/s 439 Cr.P.C. and neither the Solicitor General nor Court, went on to discuss or include the test of twin conditions in the said order while dealing with considerations of bail. Therefore, it can be conclusively asserted that the courts have paid little attention to the amended S. 45 of the PMLA while granting bail to an accused thus making the applicability of S. 45 redundant.
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Just One Psychiatrist For All Prisoners With Mental Illness In State Not Sustainable: Orissa HC Expresses Concern On Prison Conditions
It cannot be easily glossed over that none other than the Orissa High Court itself in an extremely laudable, learned, landmark and latest judgment titled Krushna Prasad Sahoo v. State of Orissa & Ors. in W.P.(C) No. 6610 of 2006 pronounced as recently as on May 21, 2022 has expressed deep concerns on the issue of the mental health of prisoners. On learning that there existed only one psychiatrist to attend all prisoners in the state with mental illness, a Division Bench of Chief Justice S Muralidhar and Justice RK Pattanaik noted with concern that, “This situation is unsustainable considering that it is physically impossible for just one psychiatrist to attend all prisoners in the state with mental illness.” It merits mentioning that the development comes in an ongoing case in which the Orissa High Court had previously directed the Director-General, Prisons, to ensure food, hygiene, and health facilities in all the jails/sub-jails of the State.
ATHAMALIK SUB-JAIL MATTER
To start with, this brief, brilliant, bold and balanced judgment authored by a Bench of Orissa High Court comprising of Chief Justice Dr S Muralidhar and Justice RK Pattanaik sets the pitch in motion by first and foremost putting forth in para 1 that, “Pursuant to the directions issued by this Court on 5th May 2022, the District and Sessions Judge, Angul has submitted a report dated 18th May, 2022 enclosing original statements of 12 inmates and 2 staff of the Athamalik Sub-Jail. The sealed cover containing the report was opened and the report has been perused by the Court. Copies of the report be made available to Mr. Debakanata Mohanty, learned Additional Government Advocate (AGA) and Mr. Gautam Misra, learned Amicus Curiae (AC).”
In the fitness of things, the Bench then points out in para 2 that, “Mr. Manoj Chhabra, DG, Prisons, Odisha, who is present in virtual mode, states that he will immediately act on the said report by taking an appropriate action against the person involved in the incident of the assault on a convict as mentioned in that report. After copies of the report have been provided to them, the said report will again be placed in the sealed cover and kept with Registrar (Judicial) of this Court.”
To be sure, the Bench then discloses in para 3 that, “Affidavits dated 20th May, 2022 have been filed by the Deputy Inspector General of Prisons and the Member Secretary, Odisha State Legal Services Authority (OSLSA) regarding status of compliance with the earlier directions issued by this Court. The learned AC has also prepared a detailed convenience note for consideration of this Court.”
While according top priority to overcrowding of prisons, the Bench then mentions in para 4 that, “At today’s hearing, the Court first considered the issue of overcrowding of prisons. The note of the AC, refers to two SubJails, viz., the Balliguda Sub-Jail and the Jajpur Sub-Jail, where even now the prison population is more than 100% of the carrying capacity of the said Sub-Jails. Mr. Chhabra, the DG, Prisons is conscious of this position and has offered a temporary solution of shifting the prisoners to neighbouring jails. He has also undertaken to re-examine the earlier suggestion whether pending the actual increase in the additional capacity of the jails and sub-jails, there can be a temporary solution found for accommodating prisoners in other state-owned buildings.”
To put things in perspective, the Bench then envisages in para 5 that, “In the course of the discussion, a concern was raised about the resistance faced when applications are filed before the concerned Courts for shifting of an inmate from one Jail to another. Considering that the problem of overcrowding of jails in Odisha is a real and serious one, and it is going to take some time before the additional capacity in jails can be constructed, if a request is made for shifting of an inmate from a jail to a jail in a neighbouring district at the nearest possible location then such request should be considered in its proper perspective keeping in view the serious problems faced by inmates in an overcrowded Jail. It is emphasized that this is only a temporary solution pending the creation of the additional capacity in the Jails.”
Quite revealingly, the Bench then notes in para 6 that, “Apart from the above two sub-jails, there are four jails viz., the Phulbani District Jail, Bhadrak Special Sub-Jail, Kamakhyanagar Sub-Jail and the Malkanagiri Sub-Jail, where the prison population between 50 to 100% in excess of the carrying capacity of those jails even as of today. That apart, fifteen District Jails, Special Jails and Sub-Jails face the situation of prison population being in excess to the extent of 20 to 50%. Mr. Chhabra assures the Court that each of these situations is receiving the highest attention of the prison authorities and wherever possible, applications will be filed before the concerned Courts for shifting of the excess population to the nearest possible jails to tide over the critical situation.”
PRISONERS WITH MENTAL ILLNESS
No doubt, the Bench then specifies in para 7 that, “The issue of prisoners with mental illness was highlighted during today’s hearing. As per the figures collated by the Secretary, Odisha State Legal Services Authority (OSLSA), from the reports of visit undertaken by the District Magistrates (DMs) there are at least 286 prisoners with mental illnesses in the various jails and sub-jails. Mr. Chhabra anticipates that this number may be even higher and would be in the range of around 500 prisoners.”
Alarmingly, the Bench then notes in para 8 that, “The statistics provided to this Court show that there are as many as 42 prisoners in Circle Jail, Koraput, 33 in Circle Jail, Sambalpur, 29 in District Jail, Keonjhar, 22 in District Jail, Bhawanipatna, 19 in Special Sub-Jail, Bonaigarh, 14 in District Jail, Angul, 14 in Sub-Jail, Nayagada and 15 in Special Jail, Rourkela, who have been diagnosed with mental illnesses that require urgent attention. It is a matter of deep concern, and a concern that is shared by Mr. Chhabra, that there is just one psychiatrist in Choudwar Circle Jail, who is expected to cater to the needs of all prisoners with mental illnesses throughout the State. This situation is clearly unsustainable considering that it is physically impossible for just one psychiatrist to attend to all prisoners with mental illnesses.”
Commendably, the Bench then lays bare in para 9 that, “A suggestion that has come forth from the learned AC and which the Court is willing to accept is to have the OSLSA to step in to arrange for visits by psychiatrists to each of the jails where there are prisoners with mental illnesses to have an assessment done of their present condition and what urgent measures need to be taken to alleviate their distress. The Member Secretary, OSLSA, who is present in virtual mode, has undertaken to arrange for such visit by specialist psychiatrist not just from Public Health Facilities but even from Private Health Facilities, the expenses for which will be defrayed by OSLSA. The OSLSA will then follow up on such reports of individual assessment by filing appropriate applications before the concerned Courts on behalf of the prisoners enclosing such assessments and praying for appropriate orders from the Court concerned, particularly for interim or regular bail. Each such prisoner with mental illness will be assigned with an individual lawyer from the panel of the OSLSA.”
PRISONERS’ PANCHAYAT COUNCIL
Essentially, the Bench then stipulates in para 10 that, “The Court’s attention was drawn to Rule 802 of the Odisha Model Jail Manual, 2020 (2020 Manual), which provides for constitution of Prisoners’ Panchayat Council (PPC). Mr. Chhabra has undertaken to examine the position of the constitution of such PPC in the jails since that would address a large number of problems faced by inmates within jails, which can be then brought to the notice of the jail administration for remedial action. The Court emphasises that since this is a statutory requirement, it has to be complied both in letter and spirit and on the next date of hearing, the Court will be informed of the constitution of such PPCs in every circle jail, district jail, special jail, special sub-jail or sub-jail as mandated under Rule 802 of 2020 Manual.”
PRISON DEVELOPMENT BOARD
As we see, the Bench then lays down in para 11 that, “As regards the Prison Development Board (PDB), Mr. Chhabra informs the Court that in view of the draft agenda proposed by his predecessor having to be revised, a meeting has not yet been held. However, he expects it will happen very soon and definitely before the end of June, 2022. The Court expects the PDB to take up in its agenda the issue of the budgetary allocations per prisoner, which requires revision among the other issues including infrastructure, overcrowding, medical facilities, skill development of the prison inmates and the like. The deliberations of the meeting of the PDB be placed before the Court on the next date.”
INFORMATION ABOUT PRISONERS’ CASES
As things stand, the Bench then maintains in para 12 that, “On the issue of information being provided to prisoners about their cases, Mr. Chhabra states that during his visit to the Circle Jail, Choudwar and District Jails in Angul and Puri, he did notice such e-kiosk and his information is that there are around 20 jails in Odisha that have such e-kiosks. He states that he will be visiting the jails in other States to ascertain the best practice in this area and ensure that those are made available in the jails in Odisha. Basically, a prisoner must have easy and ready access to latest updated information regarding his own case as well as orders of the concerned Court in his case.”
VACANT POSTS OF MEDICAL STAFF
On key issue of vacant posts of medical staff, the Bench then directs in para 13 that, “On the issue of vacant post of Medical Staff, the position of 3 psychiatrists is still lying vacant and 31 sanctioned posts of Medical Officers are also still vacant. It is stated that since the D.G. of Prisons has made a request to the State Government in this regard, a direction is issued to the Home Department as well as the Health and Family Welfare Department, Government of Odisha to immediately act upon the above requests of the D.G., Prisons and expedite the process of filling up of the vacant posts of Medical Officers and Psychiatrists.”
Adding more to it, the Bench then also directs in para 14 that, “Mr. Chhabra states that although directions have been issued by the Health Department and Home Department for increasing the frequency of the visits by the Medical personnel to the jails, that is not happening as was directed. This aspect must be immediately examined by both the Health and Family Welfare Department and the Home Department to ensure that the instructions are strictly carried out. The responsibility should be fixed on the concerned Chief District Medical Officer (CDMO) in each of the districts in this regard. A further circular/order be issued to that effect forthwith.”
Segregation of UTPs from convicted inmates, Segregation of Young Offenders from Adults and Separate Enclosures for Women Prisoners
Quite worryingly, the Bench then enunciates in para 15 that, “A concern has been expressed that at least in six sub-jails in Champua, Kamakshyanagar, Banki, Jajpur, Dharamagarh and Jeypore, under trials were not segregated from convicted inmates. Further, young offenders in the age group of 18 to 21 are not separated from adults in jails of several districts including Bargarh, Malkanagiri, Keonjhar, Bhadrak, Cuttack, Jajpur, Kalahandi, Koraput and Nuapada. A third aspect here is that the reports collated by the Member Secretary, OSLSA reveal that there are no separate enclosures for women prisoners in the District Jail in Bhawanipatna and even the report from the visit of the DLSA to Jharsuguda reveals that the women’s ward is in a pathetic condition. As regards the jail in Jharsuguda is concerned, Mr. Chhabra states that the Additional I.G. has visited the said jail and corrective measures have already been taken. As regards the issue regarding segregation in the jail in Bhawanipatna, he states that steps will immediately be taken to rectify the situation and that he will be issuing instructions in that regard.”
BIJU PATNAIK OPEN AIR PRISON
Be it noted, the Bench then states in para 16 that, “This Court had in its order dated 23rd December 2021, pointed out that the Biju Patnaik Open Air Prison, which has a capacity of 125, has remained largely underutilized. The position as of 30th April, 2022 is that the said prison has only 33 prisoners. Mr. Chhabra stated that once the COVID-19 situation totally eases and convicts return to the jails, the prison population in the open-air prison would increase. The Court urges that this issue receive the highest and most urgent attention of the prison department and on the next date, the Court must be informed of a substantial increase in the prisoner population in the open air prison.”
It is worth noting that the Bench then recalls and puts forth in para 17 that, “This Court had issued detailed directions regarding the duty lawyers being to be attached to every Police Station and of the directions issued by the Supreme Court in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, having to be followed in letter and spirit. The Court is informed by Mr. Biswajit Mohanty, Secretary, OSLSA that in 418 Police Stations in Odisha, the Duty-Lawyer system has already been implemented. The names and the mobile numbers of the Duty-Lawyers are stated to be displayed on boards in a prominent place in each of these Police Stations. He expects the Duty-Lawyer system to be implemented in all the remaining Police Stations by the 10th June, 2022. The Duty-Lawyers will be given an orientation through the DLSAs, emphasizing the need to ensure compliance with the directions issued by the Supreme Court in Arnesh Kumar (supra). The orientation will also be for effective interaction with the persons brought into Police Stations and proper advice as to their options.”
Needless to say, the Bench then mentions in para 18 that, “Mr. Chhabra states that the efforts would be made to earmark some space in every jail and sub-jail for library books and reading materials to be kept for prisoners.”
Of course, the Bench then reiterated in para 19 that, “The learned AC points out that despite the directions issued by this Court in its order dated 23rd December, 2021 in Para-48 about the Police authorities having to strictly comply with the directions issued by the Supreme Court in Joginder Kumar v. State of U.P. AIR 1994 SC 1349 and the subsequent amendments by which Sections 41-A to 41-D were introduced in the Cr.P.C., those provisions are not yet being strictly implemented. The direction to the Police to publish every month on its website the relevant information of persons arrested is reiterated.”
Quite remarkably, the Bench then mandates in para 20 that, “In modification of the direction issued by this Court in Para-7 of its Order dated 23rd December 2021, it is directed that the Member Secretary, OSLSA will facilitate the release of prisoners, who were unable to be released on bail despite being granted bail on account of their inability to furnish bail bonds, by filing applications before the Court of Sessions or the High Court under Section 440 (2) of the Cr.P.C. for modifying the conditions and the terms of both the Judgments of the Supreme Court as well as the guidelines issued by the NALSA in this regard.”
Most commendably, the Bench then notes in para 21 that, “A suggestion has been received from the D.G. Prisons to the DLSAs, who organize the visits by Panel Counsel or themselves visit the prisons should compile a list of Under Trial Prisoners (UTPs), who may be informed sick or aged or in need of urgent medical attention including pregnant women and on that basis, advise moving the Court for bail on medical grounds. This suggestion will also be acted upon by the Secretary, OSLSA, who will instruct the DLSAs accordingly.”
What’s more, the Bench then adds in para 22 that, “The Court also notes its satisfaction on the various measures that have been taken in the jails in Odisha pursuant to the orders passed by this Court, which has resulted in a considerable improvement in the conditions in he prisons in Odisha, as is reflected in the reports submitted to the Court by the District Magistrates, the DLSAs and even the District Judges, who have undertaken visits, all of which has been collated and presented in this Court at today’s hearing. Nevertheless, much more needs to be done. Hopefully, the further directions issued by this Court today should help in that direction.”
Finally, the Bench then concludes by holding in para 23 that, “List on 28th July, 2022 at 2 pm.”
In sum, we thus see that the Orissa High Court has taken great pains to ensure that prisoners are properly looked after in prisons. The Court minced no words to express its serious concern on the deplorable condition of prisoners in jail. It also made it indisputably clear that just one psychiatrist for all prisoners with mental illnesses in State is not sustainable. No denying it!
My brush with the PMO: Part 2
As I mention in my book, “Not Just A Civil Servant”, the real coal story wasn’t about the successful coal block auctions. It was about the record increase in coal production. In 2014, there were on an average more than 25 power plants that were declared critical daily for want of coal. This changed dramatically in subsequent years as the coal production rose by 33 million tonnes (which was more than the cumulative increase during the past 4 years) during 2014-15 and further by 44 million tonnes during 2015-16. By 2016, there was not a single power plat critical on account of shortage of coal. We were even toying with the idea of exporting coal to Bangladesh. This increase in production created another set of problems.
There were a select few “privileged” power producers who now wanted to make a “fast buck”. These generating companies had bid for tariff and they were supposed to make arrangement for coal themselves. Coal India Limited (CIL) was obliged to supply coal at the notified price (a price below the market price as this was adjusted in the tariff. The benefit of lower price was not retained by the generation company but passed on to the state-owned distribution companies) only to such power generating companies with whom they had prior agreement. There was no obligation to supply coal at notified price to these “privileged” few. These “privileged” power producers had succeeded in getting a special dispensation for themselves during the UPA regime when there was acute shortage of coal. Ironically the Comptroller and Accountant General who had gone to town with the irregularities relating to coal block auctions chose to remain silent on an equally scandalous dispensation being given to sect set of industrialists.
By 2016 coal production had increased substantially. In almost every meeting convened by the PMO whether relating to coal or otherwise, I was asked why was I not giving linkages to these “privileged” industrialists. Ultimately, I sent a note to the Principal Secretary raising following issues:
Should CIL coal be supplied at notified price to such entities?
Would not the benefits of concessionally priced domestic coal lead to undue gains for them as the Power Purchase Agreements were not signed on the basis of assurance/commitment of notified price coal?
Wouldn’t allotment of linkages to these tantamount to grant of undue favour or preferential treatment when there is no legal or contractual obligation to supply notified price coal to these plants?
Would this not amount to favour to the successful bidders (in PPA bidding) as bid conditions would be changed after the bidding process?
Would not assignment of linkages to such entities that did not bid in coal block auctions or did not win a coal block after bidding amount to gross disfavour to those that participated and won coal blocks in auction?
In subsequent meeting at the PMO when the issue came up for discussion yet again and I referred to the note that I had sent, I was given a dressing down that the PMO doesn’t take decisions. How true it was! Yes, we were told very clearly that PMO should not be mentioned in any decision that is taken by the Ministry/Department. Lessons were learnt from the mistakes of the previous government.
However, I stuck to my guns. And, I was moved from dark dungeons of coal mines to the bright lights of school education. Or, so I thought.
My visits to the PMO became few and far between as it was evident that school education was not high on the priority of the Government. The budgetary allocation for school education had kept coming down since 2014-15. It was Rs 55,115 crore for that year and as a percentage of GDP it was 0.52. For the year 2016-17, it came down to Rs 43,554 crore (0.36% of GDP). In one of the rare school education meetings at the PMO when I brought this to the notice of the participants, normally unflappable Mr P K Mishra got very annoyed. He appeared to be convinced that I was not providing the correct figures. There were indeed many occasions when those at the PMO were not prepared to face facts. I wondered how would they then convey facts to the PM.
It happened just three months before superannuation. There were a couple of paper leaks in the examination being conducted by the Central Board od Secondary Education (CBSE). The media was baying for Anita Karwal’s blood. She was Chairperson, CBSE. As she had chosen to set things in order in CBSE, a set of mafias were after her. (The entire story is narrated in “Not Just a Civil Servant”). After ascertaining the details, I was convinced that neither she nor the CBSE was to be faulted. It took some effort to convince the Minister who initially wanted to shift Anita to “diffuse” the crisis. Despite being convinced subsequently, he still wanted to take the PMO into confidence (A culture that had evolved over a period of time). Mr Nripendra Mishra was always available for guidance and this day was no different. Despite the short notice, he gave us time. A meeting was held at the PMO on 30th March. Mr Mishra backed my stand and asked me to go ahead to brief the media later in the afternoon but only after I had received the PM’s clearance through the PMO. I also suggested announcement of the future course of action with regard to the two papers that had leaked. This too was agreed upon. We now had something concrete to tell the media. The economics exam of class 12 was to be re-conducted and the decision on Mathematics paper for class 10 was to be taken subsequently on the basis of an enquiry into the extent and impact of leakage. The logic was simple. The class 10 exam was like an internal exam with virtually no implication on future admissions. Class 12 had much greater implications. (Subsequently, post enquiry, it was discovered that the class 10 paper leak was neither widespread nor did it have any impact on the outcome. Hence, no re-examination was done in this case and around 16 lakh children were saved from the trouble of having to appear again).
The press conference was originally scheduled at 5 pm on 30th March. The entire media was waiting for me but I was eagerly awaiting the clearance from the PMO. With every passing second, the suspense grew as everyone waited with bated breath. The clearance finally came at around 6 pm. This press conference was unarguably the toughest I ever had. Later I noted in my diary, ’The Conference took place in the afternoon in a packed hall. The aggressive posture of the media reflected angst. Fortunately, in the hour-long interaction I kept my cool and handled the questions reasonably well. One could clarify the approach of the government and the purpose seemed to have been served”. It was perhaps much more than that. It was the severest of all tests in my career.
Excerpted from “No More a Civil Servant”
Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Offic. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.
More than Chintan, it’s time to worry
A strong Opposition is necessary to protect democracy; will Congress be able to stand this test?
The day Congress’ three-day Nav Sankalp Chintan Shivir concluded in Udaipur, the BJP’s two-day Chintan Shivir began in Ahmedabad. A discussion over these two camps is quite natural. Every person who believes in democracy wants a strong Opposition. On one hand, BJP has a dedicated team with Narendra Modi and Amit Shah active round the clock and working tirelessly every day of the week and chalking out strategy every moment, and on the other, what is the condition of Congress? The question before everyone is what is the message that came out of the three-day Nav Sankalp Chintan Shivir of Congress in Udaipur? Did it invigorate the party workers spread across the country? How is Congress preparing for the coming Assembly elections or for the 2024 Lok Sabha elections? And of course, when will Congress get a full-time president? Many such questions are awaiting answers.
After the Chintan Shivir, the Congress gave the slogan ‘Bharat Jodo’! When this slogan was coined, a veteran Congress leader who dedicated his whole life to the party, told me that the party should first put its own house in order! India will automatically connect with the Congress! “When your party itself is not connected, what is the point of talking about the country?” When G-23 leaders talk about reforms in the party organisation, they are considered rebels. But the most important thing is that for a strong democracy, a strong Opposition is necessary and it is the moral responsibility of the Congress to give one. It has been the country’s oldest party and has been leading the nation for a long time. The real discussion in the Chintan Shivir should have been on the issue of why Congress is not able to understand the mood of the people. Why is the voter not able to believe in it? What is the reason that the party got cut off from the people at the grassroots level? Rahul Gandhi himself is saying this. The leaders at the Chintan Shivir should have expressed concern over this and come out with a roadmap to connect with the people but nothing of the sort happened. How will you understand the sentiments of the people and how will you explain your point of view to them?
If Rahul Gandhi arrived by train to attend the Udaipur camp, the objective was clear that he wanted to connect with the masses. He was being welcomed at every station till as late as 5 am and he was reciprocating by meeting the workers too. This is good but what about the local Congress leaders from Udaipur who sought to know why the party high command did not meet them? Just imagine how disappointed the Congress leaders and activists from Udaipur must have been? Such a disappointment kills enthusiasm. One more question remains unanswered as to why the Congress did not invite its ministers and MPs to such an important Chintan Shivir? Congress is in power only in Rajasthan and Chhattisgarh and it is a ruling partner in Maharashtra. It has only 53 MPs, yet not all had been invited.
Even the ministers of Rajasthan were not invited! 450 leaders were called for the camp out of which 430 attended. More than half of them were youths who are supporters of Rahul Gandhi. The rest were those leaders who have been occupying various posts in Congress for a long time. Ask them what steps they have taken to strengthen the party in recent years and they will have no answers. Instead of strengthening the party, these leaders spend their energy settling scores with each other. A young Congress leader asked me how many of the top leaders have a mass base? Can they win elections on their own? This question is valid. As long as the party does not send such black sheeps to political exile, revitalisation of the party will remain a mere dream!
Congress has decided to launch ‘Bharat Jodo’ campaign from Kanyakumari on October 2. A Congress observer asked me why is the Congress’ campaign not being launched from Kashmir when usually such campaigns begin from Kashmir to Kanyakumari? He himself gave the answer that if the campaign started from Kashmir, Ghulam Nabi Azad would have to be taken along. Azad saheb has expressed his opinion many times to reform the party organisation, so how could he be taken along? He has been a part of the G-23.
To take him along would have meant bowing down to the critics! Hearing all this, I remembered the couplet of the great personality of the 15th century Sant Kabir who says, ‘Nindak niyare raakhiye…’ This means you should have critics close to you, for only then you will know your weaknesses. You will be able to improve, and you will be able to walk on a better path. The army of sycophants has always been responsible for the sinking of the ship.
The Congress leaders who have spoken bitterly to make the party better are not foes of the party. They are not agents of the BJP. They should be heard. Does the party think why the youth leaders are moving away from it? The party had great expectations when it brought Hardik Patel into its fold. Why did he leave then? While parting ways, he said his condition was as if the new groom had been sterilised! Why did Sunil Jakhar leave the party? The bitter things Jakhar spoke about should have been the subject of Chintan Shivir. The BJP is welcoming leaders of all parties to its fold and yet Congress is not bothered.
This may sound bitter but it is true that the party does not have any roadmap at this juncture. Sonia ji has held the post of interim president for almost three years. Surely she is trying her best but who will deny that without a full-time president, how will the confidence of the workers be boosted? Rahul Gandhi says that he will not become the president and his caucus wants to see him in the president’s chair so that he remains the power centre.
Congress leaders attribute the precarious state of the party to the uncertainty over Rahul Gandhi. Moreover, the party seems to be confused about its policies of secularism. Now Congress leaders are doing exactly what BJP is doing!
But the moot question is, does the writ of high command run large at the lowest level? In fact, when there is a delay in the decision at the upper level, it results in confusion, and the morale of the workers breaks down. Congress has taken a long time to put its house in order. Nevertheless, the Congress followers are still waiting for it in every village!
The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha.
Everyone is curious to know about the outcome of Congress’ Nav Sankalp Chintan Shivir. Has any roadmap been drawn which the Congress can firmly follow in the coming elections? Can it play the role of a strong Opposition necessary for democracy? A slogan of ‘Bharat Jodo’ has been given for sure, but the need of the hour is for Congress to put its own house in order and revitalise itself!
Social perception of violence against women
In our nation, violence against women is a serious communal issue. This problem goes mostly unnoticed. Violence and abuse against women have a variety of causes and explanations. Whenever a crime against a woman occurs, an inept law enforcement administration is blamed for the increase in the number of complaints filed.
Even the most stringent regulation has little influence on the rising crime rate. It’s awful that there’s a social stigma attached to accepting various forms of violence against women. Rising levels of violence against women have resulted in psychological and physical problems. This paper attempts to raise awareness urging for a change in the attitude towards the women who have been the victim of different kinds of violence. It also mentions the conditions of women and how they have been suffering. It gives insights into the laws pertaining to cope gender violence. This paper analyses the rise of violence against women in the times of them past as well as scenarios of current times. The paper recommends ways to tackle gender violence as a bell of caution is being sounded in today’s time.
Keywords: Violence, Gendered, Psychological, Abuse, Victim.
Crime against women is a deep-rooted and fascinating dichotomy in that it is the most universal human rights violation while also being the least reported. Whether at home or in the wider world, women in our patriarchal society have been subjected to many forms of discrimination. Since ancient times, women have been viewed as a weaker gender, making it simpler to perpetrate violence against them. They are made to feel extremely vulnerable, which encourages them to suffer. Women are exposed to ferocity committed by people whether at home or in the outside world. Our law protects women and gives her justice and provides them with equality. Our constitution ensures that people are not being subjected to any kind of unbiased treatment towards anyone.
According to Article 15 of the Constitution of India, there is a prohibition on discrimination on basis of gender and it in the same manner directs and empowers the administration to endeavor strict methods for females. Our constitution also grants women various rights, such as equitable treatment for all, but when it comes to putting these rights into practise, the government consistently fails. The Crimes committed against women have been an obstacle to the enhancement of the society and the condition is not unknown to anyone in power. If we look into the current times there has been an increase in violent cases especially rape. A report states that a total of 717 cases of rape were enumerated from January to May 2020, which elevated to 787 in the time period of 2021. The information tells that there has been a hike of 9.76 percent in rape cases during this time span.
If we go forward to 2021, when we must stay at home due to a pandemic, it will be difficult for women to raise their voices since at this time, women are obliged to stay at home and endure and suffer as they neglect to report crimes against their family members. Working women had to juggle employment and domestic responsibilities. For roughcasting the effect and obstacle deriving from economic uncertainty, the ladies turn out to be their target. During the Covid-19 pandemic, violence against women has taken several forms. This stems from women’s struggle to strike a balance between their personal and professional lives.
WOMEN’S STATUS AND THE CAUSES OF VIOLENCE AGAINST WOMEN
The patriarchal laws and arrangements of societal practises, traditions, and norms allow for a clear identification of violence against women in both public and private life, raising a significant question regarding the lack of respect provided to women. Furthermore, it leads to a protracted and exhausting fight for justice. The economic, cultural, and religious structure of Indian society, which may be described as a bigot culture where women are harassed, beaten, and raped within homes, in the outer world, and even between the public, is really bad. The patriarchal beliefs even accept and elevate sex discrimination as well as violence against females irrespective of age. India has been a patriarchal-based society since time immemorial. Violence against women is ingrained inside the mindset of the families while degrading women as an object and treating women as an obstacle is just evidence of their mindset. The causes of violence against women are numerous. One of the grounds which steer to violence against women is the audacity of the criminal. Often, we see that the criminal’s mind reflects on himself to be exempted from the consequences of the violent acts that he has been unswerving. Some individuals are instinctive with the approach of controlling attitude which shall not be said to be dangerous as it arises under the realm of social conduct and ordinary disparity nature between individuals. There is a huge gender disparity in doing violence against women. Removing any kind of gender disparity means eliminating all types of inequality against women and eliminating obstructions that avoid women from being totally equal with all males and comprehending their Human Rights. One of the most extensive and universal obstacles is violence against women. These obstacles create havoc in the lives of the women and they come due to a lack of knowledge and awareness among individuals.
Women often feel obligated to be around harassing men because of unequal access to education across the country, and the severe lack of legal protection leaves them with no choice but to suffer at the hands of their maternal families in their homes. Women are frequently subjected to irrational behaviour, which weakens them as individuals and has negative consequences for their health. The important point to remember is that victims who have been harmed by criminals’ actions as a result of gender-based violence or any other form of based violence should not be found liable or blamed.
TYPES OF VIOLENCE
Women’s violence can be classified into several categories. These categories represent the various types of crimes that a woman may encounter throughout her life. Physical violence against women is not the only form of violence against women. It is a broad term that encompasses all forms of violence, including sexual, sensitive, psychological, and financial abuse. Any type of violence against women is not bearable and the criminals or offenders deserve punishments, imprisonments or even capital punishments should be provided to them if required. The effects of ferocity can be overwhelming to a woman’s generative fitness as well as to other features of her bodily and psychological well-being. In the accumulation of instigating injury, the violence upsurges women’s long-term danger, raising a lot of mental as well as physical health complications including chronic discomfort, disability and may put an end to her own life through depression. Mainly, violence ensues in three circumstances – at the household or to her own self, at the community level and the state and at each phase, the social establishments fulfil dangerous functions in upholding the violence .
Self-directed: Often we look at parents, lineages and even colleagues passing taunts and oppressing the females in their houses or while working with them. These taunts reflect how weak they are and sometimes even to women who were the victims of some kind of violence. These constant picking on the violence they went through leave a huge impact on their lives, sometimes making their life even more miserable and scarred forever. Emotional exploitation is causing injury to their self-respect and mentally harassing them verbally. Various women commit self-harm for a myriad of purposes, but when viewed in the context of their psychosocial and economic circumstances, it appears to be completely understandable behaviour that contributes to the women’s poor mental health.
Suicide is a major mental health concern, aside from self-abuse. It’s also crucial to remember that suicide is the consequence of a combination of factors in a person’s life, rather than a single incident or debate. They commit suicide because of the abuse they face, the harassment they go through, problems of marrying at an early age with shattered dreams, the fact that they are not allowed to marry outside family choices, not allowed to go outside late at night, body shaming and several other factors which make them feel insecure about themselves hurting their self-confidence. Apart from the pressure of society, there are also other heinous crimes like rape, acid attack, etc. which contribute to this.
Interpersonal violence: Any act of violence or aggression towards other women by known individuals or family members. Women are subjected to a variety of sorts of violence, and when it is perpetrated by someone they know, it tends to harm them significantly more and leave a lasting mark on their lives, whether it is physical abuse, sexual assault, sexual harassment, or even honour killing. The Advocate Netra Jaisingh in the film Thappad, for example, very accurately captured the same emotional exploitation where her husband disparages her in every situation and tries to affront her life and dishonour her for the accomplishment she gained. Very frequently we see that how women get slapped or beaten and sometimes even burned by their husband and family for dowry money or even for doing any work in a wrong manner or for not obeying them in any way .
Reports even come out to show that women are being asked to do sexual acts or forced to have sex and if they do not obey, then they even get threatened by their husbands. These are examples of Interpersonal violence that a woman goes through in her life. Apart from these examples in some rural as well as in urban areas, we find the concept of early marriages which are not yet declared null and void but declared as voidable which often is not the case when women are on the other side. At home, these types of irrational behavior are either ignored or not talked about and women often abstain from standing against these acts because it appears to them as a matter of a little issue and not a big act of physical violence. Physical violence is time after time getting increased in our country especially when we see it in the current challenging times.
In the current scenarios of COVID-19, there has been a steady upsurge in the numbers of domestic violence throughout the globe and this has been the case in the previous few months. Various worldwide associations or organizations took the perception of a worldwide increase in domestic violence cases as a result of physical violence. Many states have reported a 15-30% increase in the number of violent actions requests acknowledged from those women who were suffering in locked places because of domestic violence. These issues need to be addressed by the authorities in charge.
Community Violence: Despite the country’s desire to prevent violence against women, it continues to be widespread in certain sections of the country. Rape, abuse, sexual harassment, acid assaults, female genital mutilation, and other forms of physical, sexual, and mental violence are all common in the community. India is regarded as one of the most dishonest countries in the world when it comes to sexual abuse against women. Victims of rape are gradually reporting the sexual assaults, abuses, and rapes that criminals have perpetrated against them. Women are becoming more self-governing and prepared, to reduce their likelihood to account for the crime that they are facing. Rape comprises a total of about 12% of all crimes that happen against women in our country. Our country’s average rate of rape cases that are reported is about 6.3% per 100,000 of the population. The issue about rapes happening is that about 99% of the cases of sexual abuse go unreported which creates it challenging to find the true figure of rape cases. These stats create it terrible for a female to live in such an atmosphere where the woman cannot even live by herself alone. These are just a few statistics related to rape apart from the other crimes which a woman goes through in her life. In India, the practice of Female Genital Mutilation is quite common and there are different socio-educational causes for genital mutilation, which differ from place to place. There is a profound injustice against females. Although there are different unconventional reasons given for genital mutilation. People still follow it because it has been followed as a tradition. Genital Mutilation is a chronic expression that has inhospitable effects on the emotional well-being of the sufferers. The harshness of the disfigurement relates to the harm suffered. Since anesthesia is hardly ever made available to the victim during the system there is severe discomfort. There are other various acute effects for example bleeding, swelling, etc. risking the well-being of the females and in some cases, they even die . Even the concept of acid attack is a dreadful attack and has been increasing nowadays. Men have given themselves an option to destroy the appearance and the life of women. The aim behind this criminal act is very rudimentary that is negation to do matrimonial, sex and passion, refusal to love offers, etc. to prompt the mentioned. Apart from all of this, women also experience violence in the form of honour killings, human trafficking, or prostitution, and in certain cases, HIV infection has manifested itself in their bodies. As sex trafficking has grown in popularity, females have become more vulnerable to HIV infection due to a lack of knowledge about high-risk sexual behaviours. Similarly, HIV transmission spreads by worldwide and instinctive sex trafficking.
GENDERED VIOLENCE OF WOMEN IN INDIAN LEGAL MECHANISM
The government recognises a variety of legislative frameworks aimed at ensuring women’s rights, instituting joint segregation on various forms of cruelty to women, and providing aid to working women who like to work late at night. The Protection of Women from Domestic Violence Act of 2005 was passed to safeguard women in our country from all forms of domestic violence. It also protects all the women who have been or were entangled with the offender and are exposed to different kinds of violence.
Indian Penal Code (1860) contains preparations to defend women from the expenditure of attack, violence and other different types of offenses and the Code of Criminal Procedure (1973) also protects women from such acts of violence done to her. The Hindu Marriage Act
(1955) offered betrothal and allowed it on specific prearranged grounds. It gives proper rights to women with regards to marriage and separation if the women are not safe at their home or feel unsafe in their matrimonial house. Shariat (Protection of Rights on Divorce) Act (1986) defends the Constitutional rights of Muslim women who have been alienated by or have attained beatings or violence in any form from their husbands.
The Dowry Prohibition Act (1961) prohibits the unkind or enchanting of dowry from her husband or even by her family members. Throughout the 1970s, many foreign nations have approved various legal procedures against Domestic Violence but in our nation, we contain a few legal procedures for the protection of the women from any kind of violence she has been subjected to. Further, during the period of the 1990s an attempt was put forth by the administration to permit the law for the safety of women from ferocity. But after bearing in mind the growing situations of crime against women in the country, the government finally passed the Domestic Violence Act in the year 2005. This law also included cruelty under Section 498A of IPC. This law was added to deal with crimes happening inside the home. But crimes were happening at workplaces as well and which is managed by the Act of Sexual Harassment.
The Act of Sexual Harassment of Women at the Workplace Act was passed in the year 2013. Further, the Supreme Court comprehended that we require such lawmaking after the case of Vishaka v. State of Rajasthan. This law was passed to give protection to women from any kind of sexual violence or harassment who were working. This legislation gives the provision of setting up of an internal committee at every organization for solving the problem of sexual violence on women at the workplace. The Act describes sexual abuse on women at her workplace through doing any physical or sexual violence. Apart from the law governing sexual harassment, the law also safeguards the women who are subjected to heinous crimes like rape.
According to Section 376 of the IPC, there are diverse types of enactments that will form as a constituent of rape. Section 375 provides details about a sexual offense of rape. There were a lot of insufficiencies in the enactment involving rape and it was suggested that some alterations are needed in law . Often, we see that women are hampered in terms of having proper admission to justice. There is a huge illiteracy rate among men or women and they also have social gaps which prevent them from going or taking any severe activities against the carnages faced by them. The Criminal Law Act was amended in 2013 which is also known as Nirbhaya Act and it was again amended in the Kathua rape case occasioned in the portrayal of the Criminal Law (Amendment) Act, 2018, which, for the first time, placed the death penalty as a possible sentence for the rape of a girl under the age of 12. Crimes like rape often take an angle of stalking which also in itself is a crime under the Information and Technology Act, 2000. which also safeguards women from stalkers and cybercriminals and protects their right to privacy and right to live with dignity. Cybercriminals are often seen to take obscene pictures of women, send them wrong and immoral comments and try to sexually abuse the women.
CONSTITUTIONAL PROVISIONS PROTECTING WOMEN FROM VIOLENCE
Our government has incorporated the vast majority of constitutional law acts into its domestic law, despite the fact that it still needs to be improved in order to comply with international norms. Our women deserve to be treated equally, and Article 21 of the Constitution guarantees that they will be treated equally. We witness how rude it is when a woman is subjected to unfairness and unjust treatment at home or at work. They are frequently victims of horrible crimes and exploited on the outside.
This Right against Exploitation is professed under Article 23 of the Constitution where it states “Prohibitions on Human Trafficking and Forced Labor.” Human Trafficking points out the deal and buying of humans mostly for the aim of sexual oppression, forced sex work or forced labor. Another form of slavery is Beggar. This is a practice of forced employment that states forcing an individual to work for no reimbursement.
Therefore, Article 23 is an overly broad concept which safeguards an individual from doing any illegal work involuntarily. It also prohibits compelling a woman or child into prostitution. Articles 21 and 23 equally strengthen the responsibility of the nation to distinguish, release and reinstate liberated protected workers. The Constitution allows the government to make any special law for the protection of women against any kind of violence.
Therefore, Article 23 is an overly broad concept which safeguards an individual from doing any illegal work involuntarily. It also prohibits compelling a woman or child into prostitution. Articles 21 and 23 equally strengthen the responsibility of the nation to distinguish, release and reinstate liberated protected workers. The Constitution allows the government to make any special law for the protection of women against any kind of violence.
Women did not have various rights when compared with men in earlier times. There is also a big taboo that women are substantially weaker than men and because of this authenticity, they have been mistreated. Due to this type of perpetual ill behavior, the financial welfare of women has straightaway turned out to be categorically dreadful. The Constitution gives women the right to live and liberty and this liberty is taken away from their family, friends and workplaces as well.
INADEQUACY OF LEGAL PROVISIONS AND FEW RECOMMENDATIONS
Gender imbalance should be prioritised because it is a critical component of reducing violence against women. Promoting, safeguarding, and realising women’s human rights should be the mission statement. There should be norms and agendas in place to encourage women and men to learn as a means of achieving gender equality in society. Different activities can be implemented to create awareness about the elimination of gender disparity and the rise in violence against women. Apart from that, it will shape people’s perceptions on how to treat women. Violence will be reduced if the judiciary receives backing from the legislature and the government. We look into different kinds of punishments given for various crimes that are not as appropriate as that of the nature of the crime especially when we talk about the concept of rape and sexual assault on women. The punishment of these heinous crimes should be tremendous making some kind of statement for the offenders. The laws should be well enforced and the administration should ensure that women are not just safe at their home but even when they go for their work because we see a plethora of sexual harassment cases time after time by the people of the management of the organization. Unless there is adequate stress on growing sensitization at the workplaces as well, no legal improvement could be achieved.
From the case of Vishaka v. State of Rajasthan case, we can also see that the formation of the Sexual harassment committee will be able to help the agonize from any such incidents inside the workplace.
All the organizations which do the community work, associations of government, and NGOs should also advance and should spread their efforts in making awareness about reducing sexual harassment at workplaces.
Cannot ask daughter-in-law to pay mother-in-law’s maintenance under Senior Citizens Act: Bombay High Court
In a significant development with far reaching consequences, we saw how just recently on May 6, 2022, the Bombay High Court in a remarkable, rational, refreshing, and robust judgment titled Sheetal Devang Shah vs Presiding Officer in Writ Petition No. 3323 of 2019 observed without mincing any words that a daughter-in-law cannot be directed to pay maintenance to her ailing mother-in-law, especially in the absence of any proof of the woman’s income. The Court observed that, “We have reservations about such direction to SS (daughter-in-law) to pay maintenance amount to the mother-in-law…Be that as it may, upon perusal of the original record, we do not find a single document showing the earnings of SS (daughter-in-law).” It noted that Section 2(a) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 that defines ‘children’ includes son, daughter, grandson and grand-daughter, but does not refer to the daughter-in-law. While observing thus, the Bench of Justice SS Shinde and Justice Revati Mohite Dere of Bombay High Court set aside the Maintenance and Welfare of Parents and Senior Citizens Tribunal’s order to the limited extent.
To start with, this learned, laudable and landmark judgment sets the ball rolling by first and foremost putting forth in para 1 that, “This Bench has been specially constituted to hear the petitioner’s aforesaid petition and other petitions, by the Hon’ble Chief Justice. Both the members of this Bench preside over their respective Benches and have to disturb their regular boards, to assemble only for these matters.
1.1. On 27th April 2022, we heard the learned counsel for the parties from 4:30 p.m. to 7:00 p.m. and closed the matter for orders.
1.2. This Writ Petition under Article 226 of the Constitution of India is filed by the petitioner thereby taking an exception to the order dated 16.08.2019 passed by respondent No.1 – Presiding Officer of the Maintenance and Welfare of Parents and Senior Citizens’ Tribunal (for short ‘Tribunal’).
1.3. The only substantive prayer in the petition reads as under:-
ii. That this Hon’ble Court be pleased to call for the records and proceedings from the Respondent No.1 and after perusing the legality and propriety of the impugned order dated 16.08.2019 passed by the Respondent No.1, this Hon’ble Court be pleased to issue a Writ of Certiorari and/or any other appropriate Writ, order or direction under Article 226 of the Constitution of India and quash and set aside the impugned order dated 16.08.2019 passed by the Respondent No.1 at Exhibit-A;.”
In hindsight, the Bench then recalls in para 2 that, “During the pendency of this petition, the Division Bench of this Court (Coram: S. C. Dharmadhikari and G. S. Patel, JJ.), by order dated 18.09.2019, directed thus,
“5.(c) Since it is stated that the Petitioner may be dispossessed tomorrow and by using force, we direct that until further orders of this Court, the operative direction No.3 which directs the Petitioner to hand over vacant and peaceful possession of the premises to her in-laws be not acted upon or implemented.”
2.1. The aforesaid direction / interim order is in force till date.””
While elaborating on the background, the Bench then states in para 3 that, “Background facts leading to the filing of this petition are as under:-
3.1. Respondent No.1 / non-applicant has passed the order (impugned in the present petition) in the proceedings instituted by Smt. Nalini Mahendra Shah – respondent No.2 herein and her husband – Mahendra Shah. Since during the pendency of the present writ petition, husband of respondent No.2 died, with the permission of the Court, his name has been deleted from the array of the respondents. Respondent No.4 – Mr. Devang Shah is the husband of the petitioner as also the son of respondent No.2. Present petitioner – Ms. Sheetal Shah is the daughter-in-law of respondent No.2 and respondent No.3 (deleted).”
As an aside, the Bench then mentions in para 4 that, “For the sake of convenience, parties shall be referred to by their names and not by their status before the Tribunal or this Court.”
To put things in perspective, the Bench then envisages in para 5 that, “Nalini Shah and her husband Mahendra Shah filed the application No.SDO/SCNo.SDO/JNVMP/Desk-6/SR-38 of 2018 before the Tribunal constituted under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Briefly stated contentions of the applicants therein viz., Nalini Shah and Mahendra Shah, were as under:-
a. that, they are staying at Saprem, Plot No.20, 3rd Road, Juhu Scheme, Vile Parle (West), Mumbai – 400 056 (hereinafter referred to as the ‘residential premises’).
b. Devang Shah is the only son of Nalini Shah and Mahendra Shah and Sheetal Shah is their daughter-in-law. They all are residing in the aforesaid residential premises.
c. Nalini Shah is the housewife and her husband Mahendra Shah (deceased) was employed in the renowned business of diamond and diamond jewellery at Opera House. Mahendra Shah retired from the said business in the year 2016 and he had no other residential premises, save and except the residential premises at Saprem, Plot No.20, 3rd Road, Juhu Scheme, Vile Parle (West), Mumbai – 400 056.
d. Devang Shah is the employee of Supergems India Private Limited and Sheetal Shah is working as a fashion designer. Both of them are receiving handsome salary.
e. the aforesaid residential premises is in the name of Mahendra Shah and Nalini Shah.
f. It was alleged that Sheetal Shah and Devang Shah are unable to look after Nalini Shah and Mahendra Shah and from last one year, they are not looking after necessities of life of Nalini Shah and Mahendra Shah. From January – February 2017 till the filing of the application, they were harassed in the said residential premises though they are the owners of the said house. Sheetal Shah and Devang Shah, both, are torturing Nalini Shah and Mahendra Shah, physically as well as mentally.
g. Nalini Shah is suffering from asthma, vergio, back pain and leg pain.
5.1. In the aforesaid background, facts and circumstances, the said application was filed by Nalini Shah and her husband Mahendra Shah.”
To recapitulate, the Bench then recalls in para 25 that, “The Tribunal framed the following four issues of enquiry, which are as under:-
“1) Are the applicants capable of supporting themselves and meeting their basic needs ?
2) Is there any evidence that the respondent is not taking proper care of the applicant and is causing mental and physical harassment to the applicants?
3) Can the request made by the applicant be accepted?
4) What will be the orders?””
As it turned out, the Bench then observed in para 26 that, “The Tribunal, after adverting to the contentions raised by the parties and documents placed on record, observed that at the relevant time, applicant No.1 – Nalini Shah was 77 years old and applicant No.2 – Mahendra Shah was 79 years old. It is also observed that the said applicants are not in a position to work. The Tribunal observed that though it is contended by Sheetal Shah, that Nalini Shah is having share trading business and also Mahendra Shah has business of diamond and jewellery, Sheetal Shah has not submitted any evidence before the Tribunal to that effect. It is further observed, that even if the said contention of Sheetal Shah is accepted, in that case also, considering the age of Nalini Shah and Mahendra Shah, it cannot be said that they are capable of supporting themselves from their own earnings. It is also observed that the family members viz., Devang Shah and Sheetal Shah should treat Nalini Shah and Mahendra Shah with kindness, consideration and respect and that they should provide them basic necessities for a peaceful life. It is also observed that the kindness, consideration and respect cannot be bought with money. It is the responsibility of Devang Shah and Sheetal Shah being son and daughter-in-law of Nalini Shah and Mahendra Shah to pay attention to the daily needs of the applicants and to try their best to meet those needs. Nalini Shah and Mahendra Shah are dependent upon Devang Shah and Sheetal Shah for their daily necessities, mental support and care and accordingly, issue No.1 is answered in the affirmative.”
As we see, the Bench then mentions in para 27 that, “Upon perusal of the original record of the proceedings instituted by Nalini Shah, we are in respectful agreement with the said observations made by the Tribunal while answering issue No.1 except to the extent that, it holds Sheetal Shah, (daughter-in-law of Nalini Shah) alongwith Devang Shah, liable to pay maintenance.”
It cannot be glossed over that the Bench then notes in para 28 that, “We have carefully perused the observations made by the Tribunal while answering issue No.2 i.e., whether there is any evidence that Sheetal Shah is not taking proper care of Nalini Shah and Mahendra Shah and is causing mental and physical harassment to them. We have no doubt in our mind, that the observations made and the findings recorded by the Tribunal, that Sheetal Shah and Devang Shah are not taking proper care of the applicants and causing mental and physical harassment to Nalini Shah and Mahendra Shah, are in consonance with the documents on record. We have also carefully perused the various complaints filed by Nalini Shah and Sheetal Shah, and we find that there is no peace and harmony in the house. There is unrest and also there is a mental and physical harassment to the old aged parents of Devang Shah. While exercising writ jurisdiction, it is not desirable to undertake exercise of disputed questions of fact, and more particularly, when we find that the observations/findings recorded by the Tribunal, while answering issue No.2, that Sheetal Shah and Devang Shah in the said application are causing mental and physical harassment to Nalini Shah and Mahendra Shah, are made keeping in view the material placed on record.”
Furthermore, the Bench then enunciates in para 29 that, “The Tribunal, while discussing issue No.3 i.e., “Can the request made by the applicant be accepted?”, has made reference to various documents placed on record by the parties and in particular documents in relation to the said residential premises wherein, the parties are residing, and has reached a conclusion, that the residential premises is in the name of Mahendra Shah, who has inherited the same, from his parents. The Tribunal has also considered the effect of giving such property as a gift by Mahendra Shah to Devang Shah and after adverting to the provisions of Section 23 of the said Act, which provides for protection of life and property of senior citizens and as such, has correctly reached the conclusion, that the applicants’ (Nalini and Mahendra Shah) request for exclusion of Devang Shah from the suit property can be granted. It would be relevant to reproduce hereinbelow the provisions of Section 23(1) of the said Act, which reads as under:-
“23. Transfer of property to be void in certain circumstances.-
(1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.””
It deserves mentioning that the Bench then mentions in para 30 that, “The Tribunal, ultimately concluded, that Sheetal Shah and Devang Shah are not taking proper care of Nalini Shah and Mahendra Shah, but are causing mental and physical harassment to them. As already observed, the age of Nalini Shah and her husband Mahendra Shah was 77 and 79 years respectively, at the relevant time, when they preferred the application. It is brought on record by the parties, that during the pendency of the petition, Mahendra Shah died. At present, Nalini Shah, wife of Mahendra Shah, is aged about 82 years. On couple of dates of hearing before us, she attended Court proceedings sitting on a wheel chair, that itself shows that she is certainly dependent upon Sheetal Shah and Devang Shah for physical and mental support.”
What’s more, the Bench then discloses in para 31 that, “After answering the issues framed, the Tribunal accepted the case of Nalini Shah and Mahendra Shah and directed Devang Shah and Sheetal Shah together to pay Rs.25,000/- (Rupees Twenty Five Thousand only) per month to Nalini Shah and Mahendra Shah for their maintenance, subsistence and medical expenses, by depositing the said amount, in the bank accounts of Nalini Shah and Mahendra Shah.”
Most crucially, the Bench then minces no words to hold in para 32 that, “We have reservations about such direction to Sheetal Shah to pay maintenance amount to Nalini Shah. As already observed, in Section 2(a), ‘children’ include son, daughter, grandson and grand-daughter and there is no reference to the daughter-in-law. Be that as it may, upon perusal of the original record, we do not find a single document showing the earnings of Sheetal Shah. In that view of the matter, the Impugned Order, to the extent that it directs Sheetal Shah to pay Rs.25,000/- alongwith her husband Devang Shah to Nalini Shah and Mahendra Shah, cannot be legally sustained. However, so far direction given to Devang Shah to pay the said maintenance amount to Nalini Shah, the same is legally sustainable.”
It cannot be lightly dismissed that the Bench then clearly states in para 33 that, “The Tribunal has directed Devang Shah and Sheetal Shah to handover the possession of entire residential premises i.e., Saprem, Plot No.20, 3rd Road, Juhu Scheme, Vile Parle (West), Mumbai – 400 056 to Nalini Shah and Mahendra Shah (since deceased) in a peaceful manner. In our opinion, said direction given by the Tribunal is legally and factually sustainable, in as much as, when the application was decided by the Tribunal, the subject property stood in the name of husband of Nalini Shah, namely, Mahendra Shah. Relying upon the various documents placed on record including criminal complaints and other materials, the Tribunal has correctly reached a conclusion, that there is a continuous mental as well as physical harassment to Nalini Shah and Mahendra Shah (since deceased).”
Quite ostensibly, the Bench then holds in para 34 that, “In that view of the matter, we are of the opinion that the view taken by the Tribunal, after adverting to the material placed on record, is legally as well as factually sustainable. Therefore, we confirm the order passed by the Tribunal except the direction to Sheetal Shah to pay jointly with Devang Shah, maintenance of Rs.25,000/- to Nalini Shah and Mahendra Shah. Therefore, the direction to Sheetal Shah to that extent is quashed and set aside. However, as already observed, the son of Nalini Shah namely, Devang Shah is obliged to pay the said maintenance amount to Nalini Shah.”
Most remarkably, the Bench then holds in para 35 that, “The Tribunal in clause (3) of the operative order has observed that, within 15 days from the date of receipt of the order, Sheetal Shah and Devang Shah shall handover the entire possession of the residential premises in question, to Nalini Shah and Mahendra Shah (deceased) in a peaceful manner and at the same time, observed that Sheetal Shah and Devang Shah, should make separate arrangements for their own accommodation elsewhere. Keeping in view the said direction, we are of the opinion that Devang Shah, being the husband of Sheetal Shah is obliged to provide separate accommodation to Sheetal Shah and her sons elsewhere.”
In addition, the Bench then directs in para 36 that, “With the above observations, we dismiss the writ petition.”
Not stopping here, the Bench then holds in para 38 that, “Since the interim relief is operating till date, we deem it appropriate to grant further six weeks’ time to the petitioner, to act in compliance with the directions contained in clause (3) of the operative part of Tribunal’s order i.e. Sheetal Shah and Devang Shah should hand over the entire possession of the residential premises in question, to Nalini Shah in a peaceful manner. In the said clause (3), the Tribunal has also directed Sheetal Shah and Devang Shah to make separate arrangements for their own accommodation elsewhere. As already observed in para 35 hereinabove, Devang Shah (respondent No.4), being husband of Sheetal Shah and thus guardian of two sons is legally obliged to provide them accommodation befitting his status, income and assets.”
For sake of clarity, the Bench clarifies in para 39 that, “The observations made hereinabove, are restricted to adjudication of the present proceedings and will have no bearing on the proceedings pending between the parties and the orders passed therein, by the appropriate courts of competent jurisdiction or forum provided under the Statute.”
Finally, the Bench then concludes by holding in para 40 that, “All concerned parties to act upon ordinary copy of this order duly authenticate by court Sheristadar.”
In a nutshell, the Bombay High Court has made it unequivocally clear that a daughter-in-law cannot be directed to pay maintenance to her ailing mother-in-law under Senior Citizens Act. We have discussed the reasons in detail. All courts must abide by what the Bombay High Court has held. No denying it!
SC SENTENCES NAVJOT SINGH SIDHU TO ONE YEAR’S RIGOROUS IMPRISONMENT IN 1988 ROAD RAGE CASE
While sending a very loud, strong and clear message to one and all that no one can be above the law, the Apex Court most recently on May 19, 2022 in a latest, learned and landmark judgment titled Jaswinder Singh (Dead) Through Legal Representatives vs Navjot Singh Sidhu and others in Review Petition (Crl.) No.477 of 2018 in CRL.A. No.60 of 2007 with Review Petition (Crl.) No.478/2018 in CRL.A. No.58/2007 Review Petition (Crl.) No.479/2018 in CRL.A. No.59/2007 (Arising out of impugned final judgment and order dated 15-05-2018 in Crl.A. No. No. 60/2007 passed by the Supreme Court of India) and cited in 2022 LiveLaw (SC) 498 has enhanced the sentence of senior Congress leader and former Indian cricket team member Navjot Singh Sidhu to one year rigorous imprisonment in a 1988 spontaneous road rage accident in which a 65-year-old person named Gurnam Singh had died. The untoward incident actually occurred on December 27, 1988 at a traffic junction in Patiala when a dispute pertaining to the right way of vehicles led to altercation with Navjot Sidhu pulling out the deceased from his vehicle and assaulting him with fist blows in a fit of rage. Even Sidhu himself could not have believed that the person whom he beat would die as everything happened suddenly without any preparation or past enmity. This alone explains why the Bench of Justice Sanjay Kishan Kaul and Justice AM Khanwilkar rejected the plea for fastening culpable homicide not amounting to murder charge under Section 304A of the IPC. Very rightly so!
We know that Sidhu was earlier let off with a fine of Rs 1000 and the court spared him a jail term. In 2018, the top court had convicted Sidhu for the offence of “voluntarily causing hurt” but had acquitted him in connection with the culpable homicide charges as Sidhu had no intention to murder. But now the maximum possible sentence under Section 323 of the IPC has been awarded to the former Punjab Congress President and former Indian cricketer Navjot Singh Sidhu as the victim’s family filed a review petition before the top court while pressing for enhancement of punishment. Sidhu will now be taken into custody by Punjab police to serve out the sentence.
The key points of this judgment are as follows:
1. When a 25 year old man, who was an international cricketer, assaults a man more than twice his age and inflicts, even with his bare hands, a severe blow on his (victim’s) head, the unintended consequence of harm would still be properly attributable to him as it was reasonably foreseeable – The indulgence was not required to be shown at the stage of sentence by only imposing a sentence of fine and letting him go without any imposition of sentence.
2. The hand can also be a weapon by itself where say a boxer, a wrestler or a cricketer or an extremely physically fit person inflicts the same. This may be understood where a blow may be given either by a physically fit person or to a more aged person. (Para 24)
3. Even though any harm might not be directly intended, some aggravated culpability must be attached if the person suffers a grievous hurt or dies as a result thereof. (Para 32)
4. While a disproportionately severe sentence ought not to be passed, simultaneously it also does not clothe the law courts to award a sentence which would be manifestly inadequate, having due regard to the nature of the offence, since an inadequate sentence would fail to produce a deterrent effect on the society at large – A long period had lapsed by the time the appeal was decided cannot be a ground to award the punishment which was disproportionate and inadequate. (Para 25 -32)
To start with, this notable judgment authored by Justice Sanjay Kishan Kaul for a Bench of Apex Court comprising of himself and Justice AM Khanwilkar sets the ball rolling by first and foremost putting forth in para 1 that, “The original controversy emanates from an FIR dated 27.12.1988 under Section 304/34 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) registered by the Sub-Inspector of P.S. Kotwali of Patiala District, Punjab on the basis of the information given by one Shri Jaswinder Singh (Informant) about an occurrence around 12:30 p.m. at the traffic light of Battian Wala Chowk. The Informant and one Avtar Singh (PW-3 and PW-4 respectively) were travelling with the deceased, Gurnam Singh in a Maruti Car driven by the deceased. Apparently, a dispute arose on the right of way between the accused and the deceased and respondent No.1 (the first accused) came out of his vehicle, pulled out the deceased from his vehicle and inflicted fist blows. As per the Informant his endeavour to intervene resulted even in the second accused (respondent No.2) (not mentioned in the FIR) getting out of the vehicle and giving fist blows to the Informant. It was alleged that the car keys of the deceased’s car were removed by the accused and they fled from the scene of occurrence. PW-3 and PW-4 took the deceased in a rickshaw to the hospital where the doctors announced that Gurnam Singh was dead.”
To put things in perspective, the Bench then envisages in para 2 that, “A post-mortem was conducted by Dr. Jatinder Kumar Sadana (PW-2), who recorded that the injuries were ante-mortem in nature and caused by a blunt weapon though he reserved his opinion on the cause of death as it could apparently be given only after receiving the report of the pathologist. The Pathologist’s report dated 09.01.1989 noticed a large number of abnormalities in the condition of the deceased’s heart and did not notice any pathology insofar as the brain is concerned. Even after the Pathologist’s report, PW-2 did not give a definite opinion regarding the cause of death of Gurnam Singh. Thereafter, PW-2 wrote to the Civil Surgeon, Patiala on 11.01.1989 requesting that the case be referred to Forensic Expert, Government Medical College, Patiala, as a result of which a Medical Board was constituted consisting of six members. Two of these members were examined as PW-1 and PW-2 but a very cryptic opinion was given by PW-1 with disinclination to give any further clarification when sought for by the prosecution.”
As it turned out, the Bench then enunciates in para 3 that, “A chargesheet dated 06.03.1989 was filed on 14.07.1989 under Section 304 of the IPC against respondent No.2, exonerating respondent No.1. During the course of trial, the Sessions Court exercised its powers under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’) and after recording the statement of the Informant summoned respondent No.1 to stand trial. The Informant also filed a private complaint against both the accused for commission of offences under Sections 302/324/323 read with Section 34 of the IPC. Both the cases were consolidated and on 20.08.1994 charges under Section 304 Part I were framed against both the accused arising from the FIR. While in the complaint, charges were framed under Section 302 of the IPC against respondent No.1 and under Section 302/34 of the IPC against respondent No.2. Charges under Section 323/34 of the IPC were framed against both the accused for causing hurt to the Informant.”
As we see, the Bench then states in para 4 that, “The trial court post trial acquitted both the accused vide judgment dated 22.09.1999. In terms of the judgment of the trial court, the death was not caused by subdural haemorrhage and the deceased suffered sudden cardiac arrest under stress because of which he fell and received two abrasions leading to subdural haemorrhage. The death was caused due to violence but it was not certain as to when precisely Gurnam Singh had died.”
Furthermore, the Bench then mentions in para 5 that, “The State and the complainant both moved the High Court vide separate appeals. The High Court in terms of the judgment dated 01.12.2006 opined that the cases of the two accused were to be considered separately. The High Court convicted respondent No.1 under Section 304 Part II of the IPC based on the testimony of the doctors, PW-1 and PW-2. As per their testimony, the cause of death was cardiac failure and all that they had stated was that the cardiac condition of the deceased was very weak. On the opening of the skull, subdural haemorrhage was present over the left parietal region and brain. It was the haemorrhage which caused the death of the deceased and not the cardiac arrest. Insofar as respondent No.2 is concerned, he was held guilty under Section 304 Part II read with Section 34 of the IPC as well as Section 323 of the IPC.”
Simply put, the Bench then states in para 6 that, “Three criminal appeals were filed before this Court by the two accused and the Informant.”
To be sure, the Bench then postulates in para 7 that, “The High Court judgment was analyzed by this Court, wherein it was opined that the testimony of the witnesses was trustworthy. Merely because there was a relationship between the Informant, Avatar Singh and the deceased, and more witnesses were not examined, could not have led to a conclusion that the case had not been proved beyond reasonable doubt.”
Adding more to it, the Bench then mentions in para 8 that, “The post-mortem report was examined closely which indicated only two external injuries – one on the temporal region and another on the left knee of the deceased, and both were abrasions. The doctors had opined that the second injury could be the result of the fall and, thus, it is most unlikely that a person would simultaneously aim at the head and also the knees of the victim while giving fist blows. Respondent No.1 possibly delivered more than one fist blows while only one of them landed on the head of the deceased and others missed the target. This Court did not agree with the observations of the High Court that the death was caused by subdural haemorrhage and not cardiac arrest. There was stated to be uncertainty regarding the cause of death of Gurnam Singh and no weapon had been used, nor was there any past enmity between the parties, and what happened was the result of an instant brawl.”
Still adding more, the Bench then notes in para 9 that, “The case against respondent No.2 was held not to have been proved and mere presence of respondent No.2 with respondent No.1 was not sufficient to result in a conviction based on common intention. Even for the offence under Section 323 of the IPC, respondent No.2 was held not guilty.”
In hindsight, the Bench then recalls in para 10 that, “The Court recognized that there were lapses in investigation but then people are not convicted on the basis of doubts. Respondent No.1 was held not guilty of causing the death of Gurnam Singh, and the only conclusion which was found acceptable was of the respondent No.1 causing voluntary hurt to Gurnam Singh which is punishable under Section 323 of the IPC. It was noticed that respondent No.1 was an international cricketer and a celebrity at the time of the incident and at times there was an endeavour to turn a blind eye to the violations of law committed by celebrities. On the question of sentence, a fine of Rs.1,000/- alone was imposed vide order dated 06.12.2006, since the incident was 30 years old at the time, there was no enmity between the parties and no weapon was used.”
It deserves mentioning that the Bench after hearing both sides then observes in para 24 that, “We have given our thought to the matter. In our view, some material aspects which were required to be taken note of appear to have been somehow missed out at the stage of sentencing, such as the physical fitness of respondent No.1 as he was an international cricketer, who was tall and well built and aware of the force of a blow that even his hand would carry. The blow was not inflicted on a person identically physically placed but a 65 year old person, more than double his age. Respondent No.1 cannot say that he did not know the effect of the blow or plead ignorance on this aspect. It is not as if someone has to remind him of the extent of the injury which could be caused by a blow inflicted by him. In the given circumstances, tempers may have been lost but then the consequences of the loss of temper must be borne. In fact, this Court to some extent had been indulgent in ultimately holding respondent No.1 guilty of an offence of simple hurt under Section 323 of the IPC. The question is whether even on sentence, mere passage of time can result in a fine of Rs.1,000/- being an adequate sentence where a person has lost his life by reason of the severity of blow inflicted by respondent No.1 with his hands. The hand can also be a weapon by itself where say a boxer, a wrestler or a cricketer or an extremely physically fit person inflicts the same. This may be understood where a blow may be given either by a physically fit person or to a more aged person. Insofar as the injury caused is concerned, this Court has accepted the plea of a single blow by hand being given on the head of the deceased. In our view, it is this significance which is an error apparent on the face of the record needing some remedial action.”
While mentioning relevant US Apex Court judgments, the Bench then states in para 34 that, “The US Supreme Court has also moved in the same direction in Payne v. Tennessee 501 US 808 (1991) while examining the aspect of the “victim impact statement” in a case of capital offence at the time of sentencing. The court considered the aspect from the dissenting judgment in the case of Booth v. Maryland 482 U.S. 496 (1987) which emphasized on “reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.” The words of Justice Benjamin Cardozo in Snyder v. Massachusetts 291 US 97 (1934) bring out that “justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.””
To put it differently, the Bench then observes quite forthrightly in para 35 that, “Thus, a disproportionately light punishment humiliates and frustrates a victim of crime when the offender goes unpunished or is let off with a relatively minor punishment as the system pays no attention to the injured’s feelings. Indifference to the rights of the victim of crime is fast eroding the faith of the society in general and the victim of crime in particular in the criminal justice system. (Shri P. Babulu Reddy Foundation Lecture, Victims of Crime – The Unseen Side by Dr. Justice A.S. Anand, Judge, Supreme Court of India (as he then was) (1998) 1 SCC (Jour) 3. Delivered at Hyderabad on 28th September 1997.).”
For clarity, the Bench then stipulates in para 36 that, “We noticed the aforesaid judgments to repel the contention of learned senior counsel for the respondent that the victim should have no say in the matter of enhancement of sentence.”
It is worth noting that the Bench then clearly states in para 38 that, “We are not setting forth much about how the investigation proceeded initially, how the court had to intervene to see that the relevant people are charged, the manner of leading of evidence, the hesitancy of doctors all of which weighed in this Court opining that a case beyond reasonable doubt could be only of one under Section 323 of the IPC. We do believe that the indulgence was not required to be shown at the stage of sentence by only imposing a sentence of fine and letting the respondent go without any imposition of sentence.”
Quite significantly, the Bench then holds in para 39 that, “The present case is not one where two views are possible such that review should not be exercised. It is a case where some germane facts for sentencing appear to have been lost sight of while imposing only a fine on respondent No.1 and, therefore, no question of choosing between two possible views arises.”
Finally and far most significantly, the Bench then concludes by directing in para 40 that, “The result of the aforesaid is that the review applications/petitions are allowed to the aforesaid extent and in addition to the fine imposed we consider it appropriate to impose a sentence of imprisonment for a period of one year rigorous imprisonment to be undergone by respondent No.1. The parties are left to bear their own costs.”
In essence, the Apex Court has made it indubitably clear that there is merit in the review petition of victim’s family. We thus see that the punishment for Sidhu is enhanced from just Rs 1000 fine to one year rigorous imprisonment in jail. It is really a fine gesture on the part of Navjot Singh Sidhu to humbly accept the Supreme Court verdict without any ifs and buts and he tweeted saying clearly that, “Will submit to the majesty of law…” No denying it!
“The High Court judgment was analyzed by this Court, wherein it was opined that the testimony of the witnesses was trustworthy. Merely because there was a relationship between the Informant, Avatar Singh and the deceased, and more witnesses were not examined, could not have led to a conclusion that the case had not been proved beyond reasonable doubt.”
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