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Exigency of transformation in the Constitution via equity

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The Constitution of India plays a transformational role i.e., to do away with the vices, discrepancies, and injustices in the society. The Constitution of India has a major goal to attain social justice for all individuals. The constitution is transformational in the sense that it evolves and transforms according to the changes and needs required in society. Thus, the constitution is always at work in order to bring about justice in society. The constitution tends to adjust itself to the changing requirements of society in order to be able to govern and regulate at all times.

DIMENSIONS OF ARTICLE 14

Earlier according to the needs of the society, reservation policy was formulated in order to abridge the gap which existed between various classes, castes, gender etc. creating inequalities. Therefore, in order to balance the same, the concept of equality was framed to bring such unequal sections of society to the same line. But, after years of success of the concept of equality, such features are working negatively in the country as those unequal sections of society which have already brought to a balanced level, are given excessive rights which are often being misused.

The constitution has an activist dimension as it has an activist magnitude to transform the society based on principles of equity, justice, a good conscience, reasonableness, and non-arbitrariness. The entire concept towards constitution and legal interpretation changed and the interpretation now became purposive interpretation in light of the essential constitution purpose and the essential inviolable spirit of the constitution. With respect to Article 14, now the essential test was not merely ‘reasonable and just’ rather the first test now became the test whether the law violates essential spirit of constitution or not. Once, that test is passed, then comes the test of reasonable classification. This change of approach towards interpretation towards article 14 is what is called ‘the new concept of equality’.

The word ‘any person’ in Article14 of the Constitution extends to the protection of aliens while within the territory of India. The use of the words “any person” is in the context of legislation in general and executive action affecting group rights is construed to mean persons who are similarly situated. Equal Protection of the laws’ means the protection of equal laws for all the persons similarly situated. Therefore, not merely reserved class, who have till today advanced to a certain level where most of the times they do not require the benefit of reservation. Similarly, not merely women require special laws but also other excluded genders who are victims of similar crimes. Thus, the need of the hour is to the protection of ‘all persons’ who are similarly situated.

In Anwar Ali Sarkar, it was also held that the application of Article14 cannot be precluded on the basis of whether there was clear evidence of the Legislature’s intention to discriminate, and held that the application of Article 14 is premised on whether discrimination is a necessary consequence of the statute. Where the classification is prima facie violative of constitutional provisions, there cannot be any presumption in favor of the state, it has to support the classification. Therefore even though there is no intention of the Legislature to discriminate but still the particular classification of genders conflicts with the idea of the basic structure of the constitution.

RULE OF LAW

Rule of law is a part of the basic structure of the Constitution. It constitutes the core of the Constitution that exercises the power by the State, whether it be the Legislature or the Executive or any other authority, it should be within the constitutional limitation. Rule of law is a dynamic concept that delivers social justice to the vulnerable sections of the community and nobody shall be denied right and justice.

The fundamental right to equality in Article 14 has been so construed as to make the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme as a golden thread through the whole fabric of the constitution.

REASONABLENESS

In order to satisfy the test of article14, every State action must be informed by reason and it follows that an act uninformed by reason is arbitrary. Reasonableness depends upon the relevance of a reason for a particular action. Article 14 contemplate “reasonableness” in State action, the absence of which would entail the violation of Article 14.

A departure from a non-statutory policy would not be arbitrary where the special circumstances of a case justify such departures in the public interest, e.g., where relaxation from the merit test was made in the case of posts reserved for candidates of the S.C. or S.T., having taken into consideration the facts that owing to unavailability of qualifying candidates in that category, from year to year.

It was also held in the case of Ajay Hasia v. Khalid Mujib that the reasonable classification is not the end of equality, rather it is only one tool of equality. The real test is not a technical test instead it is to examine the essence of the constitution and if any law provides for unreasonable and arbitrary powers, the law will be per se struck down on the face of it, even if it makes a reasonable classification. This development is a new approach to constitutional perception and is not limited to Article14. Even in Article 21 and other provisions, the same development has taken place.

LANGUAGE OF THE STATUTES

Language plays a vital role in determining the idea and attitudes behind anything. A Legal Glossary is one of the most essential tools to assert the purpose behind any statute or provision. There is no space for language indicating misogynist or misandry ideas especially in a country where the edifice of the constitution has to be built upon the concepts crystallized in Preamble which advocates for ideas like equality, liberty, fraternity, etc. Therefore, the use of words in certain statutes is gender-biased like ‘he shall’, ‘she shall’ etc., especially in section 375 of the Indian Penal Code (IPC) which uses specific pronouns like ‘sex by a man with a woman’, without her consent’ etc. Thus, the language of the statute should be gender-neutral in nature so it can be interpreted within a wide ambit.

FEMINISATION OF LAWS

Though Article 15 (3) of the constitution of India contemplates that there is an exception to the laws regarding women and children. During earlier times, there was massive discrimination existing against women, due to which the need of the hour was framing and thereby, active functioning of strict laws in favor of the woman in order to bring them equal rights and laws granted in favor of men. But in today’s world, the situation has become quite different as even though there are still crimes existing against women but merely framing special laws for them and ignoring the other genders of society who face similar kinds of crimes is a form of discrimination.

On the same lines, there are various statutes like the Protection of Women from Domestic Violence Act, 2005, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Section 375 of IPC, etc. Not only women but various other kinds of gender face such crimes at a large scale, but still there is no mention of them.

NEED FOR EQUITY

The constitution already has a feature of equality embedded in it which used to serve the purpose of the constitution earlier when massive discriminations were existing in the society but currently, the need of the hour is Equity and not equality as equity helps to classify different types of people on basis of their respective needs and not merely treating them equally irrespective of their special needs or requirements which is just destroying the basic purpose of the constitution i.e. to have a fair and just society. Earlier, in order to balance the differences, there was a need to equalize people so as to bring them to the same level, but now they have come far away from such imbalances and thus, there is a need for equity in society.

CONCLUSION

Thus in light of Article 14 and it’s essential features, it should be interpreted in a more analytical way after understanding the current needs of the society. Thus, socio-justice, special protection and upliftment of the vulnerable sections is an essential dimension of the above provisions. The state can devise different methods of social justice as per its own policies which includes affirmative action and protective discrimination. A just, fair and equitable social order needs to be established. The measures to do social justice in a wise measure will result into promoting fraternity. It is manifest in the preamble also states that social justice and equality promotes fraternity and fraternity assures unity and integrity of nation and also dignity of the individual. There is a need to do a overhaul in the society and education becomes the most important tool for that purpose, particularly value education, the socio, psychological milieu of the society has to be changed.

In order to fulfill the main goals of constitution framers, there is a stringent need to transform the constitution which is always working for justice and fairness in the society. Thus, to remove existing discrepancies in society and also, to maintain a fair framework, we must inculcate the idea of equity in the constitution.

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Legally Speaking

INSOLVENCY AND BANKRUPTCY CODE, 2016 REQUIRES FURTHER FINE-TUNING

RAHUL NAIR

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The Insolvency and Bankruptcy Code, 2016 has ushered in a new era of restructuring process in India. This effective legal framework for timely resolution of insolvency and bankruptcy proceedings has promoted the availability of credit and emboldened the investors’ confidence in the Indian economy. While earlier, there existed multiple laws which led to the creation of multiple fora for dealing with corporate insolvency, the Code has been successful in creating a single unified umbrella which is exhaustive and complete in itself. The establishment of Insolvency and Bankruptcy Board of India (IBBI) as a separate regulatory authority makes regulations robust and precise, relevant to the time and for the purpose.

CONCERNS

However, no system is perfect, and the Code too, notwithstanding its distinct qualities, is not an exception. Chapter II of the Code lists out the process wherein Corporate Insolvency Resolution Process (CIRP) may be initiated against a corporate debtor in case of default of payment. Once the National Company Law Tribunal (NCLT) admits the application, it appoints an Insolvency Profession who manages the affairs of the Corporate Debtor. The lack of emphasis within the Code on the need of aggrandising the value of the property of the debtor and reorganisation of the company is worrying. This not only takes away the protection offered in doing business but provides no incentive for the Committee of Creditors (CoC) to work towards the revival and reorganisation of the corporate debtor during the CIRP. This often results in liquidation of the company, immediately followed by substantial economic loss.

The relatively nascent jurisprudence on the subject and the constant changes made in the Code adds to the problem. The recent amendment brought about by the Government in insolvency law does not inspire much confidence either. In light of the unprecedented pandemic, the Section 10A amendment to the Code grants protection to corporate persons who may have defaulted in discharge of their debt obligation, from any insolvency proceedings against them, starting from 25th March of 2020 until March 25 of this year. The amendment, however, is silent on granting the same relief to the corporate and personal guarantors, who may have been equally affected by the pandemic. This leaves them in a vulnerable position, wherein the creditors have the recourse to take action against them under the Code. Moreover, due to this blanket immunity, it creates an environment wherein corporate debtors are encouraged to commit defaults intentionally, without regard to the creditors.

The Code would do well by incorporating a ‘pre-packaged insolvency scheme’ similar to the practice used extensively in the United States, where the stressed company prepares a reorganisation plan before the Adjudicating Authority for approval. This could be viewed as a pre-IBC window having twofold benefit – it expedites the resolution process, and ipso facto results in less value destruction of the assets, thereby offering better value to the creditors. Such an intended measure assumes special significance at a time when creditors have had to endure long delays even under the new framework of insolvency provisions. Consider the latest IBBI quarterly newsletter as an illustrative example. Out of the 1942 CIRPs filed and pending under the IBC as of 30th September 2020, 1442 have been going on for more than 270 days, while another 349 have been pending for more than 180 days but fewer than 270 days. This structural problem is clearly reflected in the World Bank’s “Ease of Doing business Index” with US ranking 6th whereas India ranks a lowly 63rd.

The complication further arises due to the territorial nature of the statute which seldom acknowledges the international character of insolvency matters. Herein lies the need to implement the UNCITRAL Model Law on Insolvency in India which effectively deals with cross-border insolvency issues without interfering with the individual sovereignty of nations.

Another area of concern is the jurisdictional indifference of the tribunals against the commercial viability of resolution plans. A case in point is the recent order passed by the National Company Law Appellate Tribunal in the case of Kundan Care Products v. Amit Gupta, wherein the bench rejected the successful resolution applicant’s plea for withdrawal of his plan which became unviable post CoC’s acceptance, citing lack of jurisdiction to entertain such plea post CoC’s approval. However, a careful perusal of I&B Code suggests that it does not contain any provision to compel specific performance of a Resolution Plan by an unwilling Resolution Applicant. Moreover, rule 11 of NCLAT rules 2016 gives it ‘inherent powers’ to pass orders as it may deem fit. Such self-imposed restraints on the exercise of powers would deter prospective resolution applicants from laying out their plans, thereby defeating the very purpose of IBC law, which is to maximise the value of assets in the interest of all stakeholders. Nevertheless, the issue must be dealt judiciously, since excessive laxity too, can risk degenerating resolution application into a farce.

CONCLUSION

While the Code has indeed allowed for higher legal clarity when there arises any question of insolvency or bankruptcy, the implicitly incomplete statutory provisions, rising cost of rehabilitation and somewhat questionable jurisprudential layout is threatening to undo much of its positives. Overall, the IBC 2016 could well be termed as a knight, indulging in the classic one step sideward and two step forward movement, as displayed in chess. In this unprecedented time, the level of fine-tuning made in the Code will be crucial in determining the future course of insolvency and bankruptcy law in India.

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THE SOCIAL SECURITY COST RUMPUS: AN ANTE LITEM MOTAM ANALYSIS

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A lot of ruckus is created in the past few days, due to which the salaried employee class is worried and a major cause of concern among it is the composition of their take-home salary in their total pay. Most probably the salaried employees will be receiving a higher employer contribution to their employee provident fund (EPF) along with higher gratuity payments from the next financial year, i.e. once the new law on wages gets implemented from 1st April, 2021. This is due the standardised application of the new definition of “wages” under the Code on Wages, 2019 (hereinafter the “Wages Code”) based on which EPF and gratuity are calculated. However, this may lead to a substantial reduction in the in hand salary of the employees. In this article, the author therefore attempts to analyse the impact of the new labour and employment laws on the corpus of EPF and other social-security components in employees’ total pay along with its impact upon their take-home salary.

I. INTRODUCTION: THE NEW LABOUR CODES

In past there were as many as 165 labour and employment laws in India, including 44 federal laws and therefore, it was no less than a nightmare for employers to comply with laws both at Central and State level. In this context, the government of India, in pursuance of its aim of promoting ease of doing business, consolidated the major Central labour and employment laws relating to wages, social security, industrial relations and occupational safety etcetera. The Wages Code and the Code on Social Security, 2020 (hereinafter the “Security Code”) both are part of the four labour codes arising out from merging 29 out of 44 Central labour laws. The Wages Code was passed by the Parliament in August 2019, whereas, the other three labour codes were passed in September 2020. It’s anticipated that these new laws will be implemented from April 1, 2021.

EPF, gratuity, leave encashment and other social security benefits (hereinafter collectively referred as “retiral benefits”) are governed by the provisions of the Security Code, but their calculation depends on the new definition of “wages” under the Wages Code. The Wages Code provides a new and standardised definition of “wages” to bring in parity the new laws as opposed to the varied definitions under the extant laws. The new definition now has three parts to it, i.e. an inclusion part, specified exclusions and conditions which limit the quantum of exclusions. This has been explained below.

II. ‘WAGES’ UNDER SECTION 2(Y) OF THE CODE ON WAGES, 2019

According to S.2(y) of the Wages Code, the wages include all remuneration paid to a person expressed in terms of money or capable of being so expressed, in respect of his employment or of work done in such employment, including the basic pay, dearness allowance and retaining allowance (if any). Moreover, S.2(y) further provides that when an employee is paid remuneration in kind, the value of such remuneration up to 15% of total wages payable to him shall also be deemed to form part of wages of such employee. This is hereinafter termed as the “first component of employee’s total pay” or “basic pay”.

S.2(y) of the Wages Code, further provides that wages however, doesn’t include any bonus or commission, remuneration paid under award or settlement between the parties or order of court, contributions towards provident or any other pension fund, house rent allowance, overtime allowance, or any other allowance for house-accommodation, supply of light, water, conveyance, travelling, medical attendance or other amenity. This is hereinafter termed as the “second component of employee’s total pay” or “allowances”.

III. MEAT OF THIS ARTICLE

An employee has been mandated under S.16(1)(a) of the Security Code, to deduct a minimum of twelve per cent from his basic pay towards the EPF contributions. Similarly, to match this, S.16(1)(a) further mandates the employer to deposit another twelve per cent (calculated upon the basic pay) from the second component of the employee’s total pay. Thus, one thing is clear, i.e. the contribution to EPF depends upon the amount of first component of employee’s total pay.

Therefore, many employers with the objective of limiting the EPF contributions restructure these two components of wages in such a way that the first component remains low, while the second component i.e. the allowances gets substantially higher. This is where the Wages Code comes into play and in this very context, S.2(y) of the Wages Code provides that the basic pay, for the purpose of calculation of EPF contributions, have to be at least fifty per cent of employee’s total pay. In order to comply with this rule, the employees are mandated to increase the first component of the employee’s total pay to at leastfifty per cent of the total remuneration, thereby, leading to a rise in the contributions towards retiral benefits.

The Wages Code further provides that if the first component of the employee’s total pay falls below the fifty per cent mark then some portion of the second component of the employee’s total pay will be added to it, so that basic pay becomes at least fifty per cent of the total remuneration for the purpose of calculating contributions to retiral benefits.

Therefore, under the new labour law regime an attempt has been made by the legislature to regard at least fifty per cent of the employee’s total pay as his “wages”. This is aimed to preclude the employers from adopting such compensation structures which may reduce contributions towards the social security schemes so as to secure the employees in long run.

However, this limit of fifty per cent isn’t absolute and the Central Government has the power to prescribe any other limit as it may deem fit. Whatever be the case, the present amendment in definition of “wages” will impact both the employers and employees. It would increase the financial burden upon the employer, due to an increase in the liability of payment of contribution towards EPF and gratuity etc. This will equally impact the liquidity of the employees whose net take home income will definitely witness steep reductions. Nevertheless, the said amendment would be beneficial to the employees inasmuch as their social security is concerned. The said amendment may also further the coverage of the social security benefits to those employees in the organisation who may be currently excluded.

IV. THE TWIST: SECTION 164(2)(B) OF THE CODE ON SOCIAL SECURITY, 2020

Most interestingly, however, the Employees’ Provident Funds Scheme, 1952 (hereinafter the “1952 Scheme”), in Paragraph 26A read with Paragraph 29, explicitly provides that where the basic pay of an employee is more than Rs.15,000, an employer is required to contribute twelve per cent of at least Rs.15,000 as EPF contribution. And, as per S.164(2)(b) of the Security Code, the 1952 Scheme will remain in force for a period of one year from the date of commencement of the Security Code.

This means that Wages Code will not materially affect those, whose salary is more than Rs.15,000/month, for at least one year, i.e. till the 1952 Scheme remains in force. Therefore, only those employees whose basic pay is Rs.15,000 or less would get affected by the Wages Code from the beginning of next financial year in April, 2021. However, if the new Codes changes the trend of the scheme laid down in the 1952 Scheme, then, even those whose basic pay was more than Rs.15,000 will be affected.

But, it’s pertinent to mention that the ones who would be subjected to the hardship caused by the amendment in the definition of “wages” under the Wages Code would also reap some extensive benefits in the long run. They would benefit by way of tax deductions and savings as the EPF, out of all the employee benefit schemes, enjoys the maximum tax concessions under the Income Tax Act, 1961. Employee’s contribution is allowed as a deduction under S.36(1)(va) of the Income Tax Act. Similarly, employer’s contribution is also treated as tax deductible under S.36(1)(iv) of the Income Tax Act. Even, the amount withdrawn from the recognized provident fund is exempted from being taxed in Rule 8 of Part A to the fourth schedule of the Income Tax Act.

V. CONCLUSION

As employers are ready to rejig the salary structure under Cost to Company (CTC) model, by increasing the retiral costs into the salary package, the take home pay of the employees would get impacted. While this amendment may reduce basic pay in the short run, it will surely compensate the employees with higher corpus in the retiral funds in the long run as they would receive larger tax-free funds at the time of retirement.

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Matrimonial discord and ‘irretrievable breakdown of marriage’ as a ground for divorce

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BEFORE the Supreme Court of India, on a regular basis, petitions are filed seeking exercise of power by it under Article 142 of the Constitution of India to dissolve the marriages which are totally unworkable, emotionally dead, beyond salvage and thus, have broken down irretrievably. Under the existing framework of law in India, ‘irretrievable breakdown of marriage’ is not recognized as a ground for obtaining a decree of divorce. Therefore, even in cases, for instance, where both the parties have been residing separately for over two decades; where custody of child is not in issue; where even though such situations exist but, one of the parties still does not give consent for divorce; the other party is constrained to approach the Supreme Court seeking divorce on grounds of irretrievable breakdown of marriage.

It is pertinent to note that as early as in the year 1978, the Law Commission of India in its 71st Report titled ‘The Hindu Marriage Act, 1955 – Irretrievable Breakdown of Marriage as a Ground of Divorce’ (“71st Report”) had examined this issue in detail and recommended amendments to be made in the Hindu Marriage Act, 1955 (“Hindu Marriage Act”) so as to make irretrievable breakdown of marriage as a new ground for granting decree of divorce. Accordingly, a Bill – the Marriage Laws (Amendment) Bill 1981, was brought in the Lok Sabha inter alia to amend the Hindu Marriage Act but, the Bill lapsed due to dissolution of the Lok Sabha. Till date, the said amendment has not been implemented. The consequence thereof is increase in hostile litigation between parties and increased burden on the Supreme Court. It is to be remembered that the Supreme Court is not a court for hearing regular appeals from the High Court but, is a court to decide constitutional issues of public importance.

However, in the absence of there being any specific provision for grant of divorce on the grounds of irretrievable breakdown of marriage, the Supreme Court is constrained to entertain such matters in those circumstances where “wedlock became a deadlock”.

COMPARATIVE ANALYSIS

The “irretrievable breakdown” theory was first introduced in New Zealand in the year 1920 by the Divorce and Matrimonial Causes Amendment Act wherein, a separation agreement for three years or more was made a ground for making a petition to the court for seeking divorce and the court had the discretion, whether to grant it or not. In the case of Lodder v. Lodder, 1921 New Zealand Law Reports 786, it was observed that the Legislature intended to consider the three-year separation period as sufficiently a good ground for divorce. It held that “when the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous”. It must be noted that in the aforementioned Act, the term ‘irretrievable breakdown of marriage’ was not defined as it was believed that every sick marriage had its own peculiar reason to be so and that there could be no fixed definition for it. Further, no guidelines were also laid down either by the Legislature or by the courts for exercise of discretion in such matters.

Under the Canadian Divorce Act also, “irretrievable breakdown of marriage” is clearly recognised as a ground for divorce, apart from the normal fault grounds of divorce such as adultery, cruelty, bigamy, etc. In the United Kingdom, the concept of matrimonial offence for divorce was replaced by the breakdown theory by the enactment of the Divorce Reform Act, 1969 whereby, a middle course was adopted. It made irretrievable breakdown of marriage the sole ground of divorce along with providing certain guidelines for obtaining evidence of breakdown. The Matrimonial Causes Act, 1973 (U.K.) allows for divorce to be obtained on the ground of irretrievable breakdown of marriage, if the court finds one or more of circumstances like – adultery, unreasonable expectation of cohabitation, desertion for at least two years, separation of two years in case of divorce by mutual consent, and a separation of five years if mutual consent is not present.

In India, the Special Marriage Act and the Hindu Marriage Act were enacted to govern marriages and divorces in the country. Over the years, the provisions of the said Acts have proved to be insufficient to deal with the situations where the marriage between the parties have broken down irretrievably. Despite the fact that the Law Commission of India had earlier submitted its Report in 1978 as well as subsequent judgments of the Supreme Court in Ms. Jorden Diengdeh vs. S.S. Chopra,AIR 1985 SC 935 and Naveen Kohli vs. Neelu Kohli,AIR 2006 SC 1675 where, necessity to introduce irretrievable breakdown of marriage as a ground for obtaining divorce was recommended, till date, nothing has been done.

MARRIAGE LAWS (AMENDMENT) BILL, 2010

In fact, in the year 2009 also, the Law Commission of India suo motu took up the matter and in its 217th Report titled ‘Irretrievable Breakdown of Marriage – Another Ground for Divorce’ (“217th Report”) recommended that ‘Irretrievable breakdown of marriage’ should be incorporated as another ground for grant of a decree of divorce. Pursuant thereto, the Marriage Laws (Amendment) Bill, 2010 (“proposed Amendment”) was introduced in Lok Sabha which proposed to insert Section 13-C to the Hindu Marriage Act thereby, making irretrievable breakdown of marriage as a separate ground for divorce under Hindu Marriage Act. The Bill introduced certain safeguards to protect the interests of the woman and children which may suffer as a consequence of the divorce granted on ground of irretrievable breakdown of marriage. The Bill proposed to add Section 13-D to the Hindu Marriage Act, whereby the respondent-wife was provided the right to oppose the petition on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage. Further, if the grant of divorce decree is opposed, then the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned. Upon doing so, if the Court is of the opinion that the divorce shall result in grave financial hardship to the respondent and that it would be wrong in all circumstances to grant it, then the court shall dismiss the divorce petition, or stay the proceedings until arrangements have been made to its satisfaction to eliminate the financial hardship.

Another provision was added namely, Section 13-E which provided that the court shall not pass a decree of divorce under Section 13-C unless the Court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made, consistent with the financial capacity of the parties to the marriage. The expression “children” would include minors, unmarried or widowed daughters not financial independent; and children with special physical or mental health conditions who require to be looked after and who do not have the financial resources to support themselves.

However, the said Bill also remained at ‘proposal stage’. Hence, the only recourse left for the parties to dissolve a dead marriage is to approach the Supreme Court. This has also left the discussion open for posing arguments for and against inclusion of irretrievable breakdown of marriage as a ground for divorce.

ARGUMENTS IN FAVOUR OF PROPOSED AMENDMENT

Before deciding as to whether the proposed Amendment is beneficial or not, the first step is to examine whether parties would want to continue in a relationship where there is total disappearance of emotional substratum. A dead marriage alive is more conducive to immorality and potentially more prejudicial to the public interest than the dissolution of the marriage bond. A dead marriage affects the mental health conditions of parties, welfare and growth of the child born out of wedlock, and leads to hostile litigation and harassment.

Under the existing framework of law, divorce can only be granted on the grounds as specified in Section 13, 13A and 13B of the Hindu Marriage Act. Section 13 provides for various grounds for divorces like cruelty, adultery, etc. is, thus, based on ‘fault theory’. Whereas, Section 13A deals with judicial separation and Section 13B provides for divorce on grounds of ‘mutual consent’. However, the aforementioned provisions does not at all deal with a situation where even though, the marriage has irretrievably broken down, still one of the spouses refuses to give consent for divorce. In such circumstance, should the parties be compelled to keep the marriage alive?

PROBLEM WITH ‘FAULT THEORY’

Under the “fault theory” of divorce, guilt has to be proven on the part of one of the spouse. The nature of the guilt being proved must pass the litmus test as prescribed by the law, and only then a decree of divorce will be granted. But, in such circumstances, sometimes proving the fault becomes difficult due to lack of evidence, non-production of evidence, etc. For instance, proving mental cruelty is very difficult. Hence, the burden to prove fault also make parties to engage in mud-slinging which brings the institution of marriage into disrepute.

Another limitation of the “fault theory” of divorce is that it requires both – an innocent party in need of relief and a guilty party against whom the relief is sought. No relief would be granted if it is found that both the parties are at fault. In such circumstances, a gradual shift from “fault theory” to ground of “irretrievable breakdown of marriage” will come to the rescue of the parties. For instance, in Rishikesh Sharma v. Saroj Sharma, (2007) 2 SCC 263 the Supreme Court after considering that the wife, who has been living separately for more than four decades, had instituted frivolous cases against the husband, observed that the marriage is dead from every angle and is impossible to revive and thus, no purpose would be served in keeping both the parties retained in marriage. Thus, it dissolved the marriage on the grounds of irretrievable breakdown of marriage.

DILEMMA OF ‘MUTUAL CONSENT’

Further, Sections 13(1-A) and 13B of the Hindu Marriage Act are insufficient to deal with all the situations pertaining to the matrimonial remedies. In this context, it is pertinent to understand the difference between obtaining a decree of divorce by mutual consent and obtaining a decree of divorce on the ground of irretrievable breakdown of marriage. The Law Commission of India in its 217th Report explained that ‘mutual consent’ requires the consent of both the parties and if one or the other does not cooperate, the said ground is not available. On the other hand, ‘irretrievable breakdown of marriage’ is a ground which the Court can examine and if the Court, on the facts of the case, comes to the conclusion that the marriage cannot be repaired/saved, divorce can be granted. The grant of divorce is not dependent on the volition of the parties, but on the Court coming to the conclusion, on the facts pleaded, that the marriage has irretrievably broken down. Thus, irretrievable breakdown of marriage as a ground for divorce comes as a possible recourse when both parties aren’t at consensus to obtain a divorce.

R. Srinivas Kumar v. R. Shametha, AIR 2019 SC 4914is a classic example of this kind. In this case, though, the husband and wife were living separately for 22 years but, the High Court dismissed the divorce petition filed by the husband on the ground that mental cruelty was not proved. The wife had also refused to give consent for divorce. The Supreme Court specifically held that separation of more than two decades was conclusive enough to prove that the marriage was irretrievably broken and even if, one of the parties does not give consent for divorce, under Article 142, it has the power dissolve the marriage. Hence, in the instant case, it proceeded to dissolve the marriage on payment of reasonable permanent alimony by the husband to the wife.

ARGUMENTS AGAINST THE PROPOSED AMENDMENT

Further, it is to be noted that the development of the “irretrievablebreakdown” theory occurred as a result of shift from the “fault theory” to “no fault theory” in divorce laws. Under Section 13B of the Hindu Marriage Act, divorce can be obtained by mutual consent without requiring one party to prove fault on part of the other. Additionally, under Section 13(1-A) of the Hindu Marriage Act, the parties may file for divorce if – (a) the parties don’t resume cohabitation after a period of one year or upwards after the passing of a decree for judicial separation, or (b) no restitution of conjugal rights happens between the parties for a period of one year or upward after the passing of a decree of restitution of conjugal rights. The Bombay High Court in Madhukar v. Saral, AIR 1973 Bom 55 observed that the enactment of Section 13(1-A) is a legislative recognition of the fact that if there has been a breakdown of marriage there is no purpose in keeping the parties tied together.

DIVORCE CAN ONLY BE GRANTED IN TERMS OF THE PROVISIONS OF HINDU MARRIAGE ACT

However, there have been many circumstances, where the courts have showed their reluctance in dissolving the marriage on grounds of irretrievable breakdown. Time and again, the courts have emphasized that since there is lack of legislative intent to introduce irretrievable breakdown of marriage as an additional ground for divorce, no divorce must be granted on such grounds by courts. In Reynold Rajamoni v. Union of India, AIR 1982 SC 1261 and Vishnu Dutt Sharma v. Manju Sharma, AIR 2009 SC 2254, the Supreme Court observed that when legislative provisions specify the grounds for granting a divorce, they constitute the only conditions on which the Court has jurisdiction to grant divorce. Granting a divorce on the ground of irretrievable breakdown, would mean adding a separate ground for divorce which can only be done by the legislature.

Irretrievable breakdown cannot be used as a magic formula to obtain divorce:

Also, another arguments against the proposed Amendment is that when the existing grounds for divorce aren’t proved, the concept of irretrievable breakdown of marriage shouldn’t be used as a magic formula to obtain a divorce decree. For instance, in cases, where the husband or wife utterly failed to prove grounds of cruelty, the Court held that the husband or wife will not entitled to a decree of divorce. In a country like India, where marriage is considered sacramental, allowing dissolution of the marriage in a light manner is unacceptable.

WELFARE OF CHILD IS OF PARAMOUNT CONSIDERATION

Other concerns raised were regarding welfare of child born out of the wedlock that is, whether he/she will be able to get the love and affection of parents in case the marriage is dissolved in a light fashion. For instance, in Hitesh Bhatnagar v. Deepa Bhatnagar, AIR 2011 SC 1637, the Supreme Court refused to grant divorce on ground of irretrievable breakdown of marriage in order to secure the future of the child born out of wedlock. Thus, divorce on such a ground becomes a disadvantage for the survival of the wife who is not financially independent and also, has the responsibility to fulfil the needs of the child born out of the marriage being dissolved.

NO ONE CAN BE ALLOWED TO TAKE ADVANTAGE OF THEIR OWN WRONG

Lastly, there are two other major grounds for opposing the proposed Amendment : firstly, it will allow the spouses to terminate the marriage at their will; and secondly, it will allow the guilty spouse to take advantage of his/her own fault. For instance in Chetan Dass v. Kamala Devi, AIR 2001 SC 1709, the Supreme Court refused to grant divorce on the grounds of irretrievable breakdown of marriage to the husband after observing that it was the husband who had meted out cruel treatment to the wife. Therefore, allowing the divorce in such circumstance would mean the husband is allowed to take advantage of his own wrong.

EXERCISE OF POWER BY SUPREME COURT UNDER ARTICLE 142 OF THE CONSTITUTION OF INDIA

Article 142 of the Constitution empowers the Supreme Court to pass such decree or order as may be necessary for doing complete justice between the parties in a cause of matter pending before it. Thus, the provision vests the Supreme Court with vast powers to issue any directions or order (irrespective of the fact whether the issue is covered by any legislative provisions exists or not) for the purpose of doing complete justice between the parties. Such an orders or direction is binding in terms of Article 141 of the Constitution of India. It is to be remembered that such a power is only vested with the Supreme Court and no other Court has similar power.

Talking about matrimonial matters, generally, the Supreme Court doesn’t exercise its power under Article 142 to dissolve the marriages. However, the recent trends have shown that where grave injustice is being caused; where parties are indulging in frivolous litigation, or where welfare of child is involved, etc. the Court has exercised its power and dissolved the marriage on grounds of irretrievable breakdown of marriage on payment of reasonable permanent alimony. In the landmark judgment – Anil Kumar Jain v. Maya Jain, AIR 2010 SC 229, the Supreme court held as under:

“(1) Although irretrievable breakdown of marriage is not a ground for divorce under Sections 13 or 13B of the Hindu Marriage Act, 1955, it can be applied to a proceeding under either of these provisions only if the proceedings are before the Supreme Court. Neither the civil courts or the High Courts can pass such orders.

(2) Only the Supreme Court in order to do complete justice, can by way of Article 142 of the Constitution, convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13B and pass a decree for mutual divorce, without waiting for the statutory period of six months.”

Since the year 1990, there are about 20 to 25 cases where the Supreme Court has exercised its powers under Article 142 to grant decree of divorce on the ground of irretrievable breakdown of marriage. But, in all such cases, power has been exercised with much care and caution, for the interest of both the parties to the marriage, and in exceptional circumstances only.

The purpose of exercising the power has been to put quietus to all litigations between the parties and to save them from further agony. It is pertinent to note that there is no straight-jacket formula which the Supreme Court applies for granting divorce on the grounds of irretrievable breakdown of marriage. It depends on facts and circumstances of each case. However, various judgments of the Supreme Court would show that the important facts which are considered while granting divorce by exercising power under Article 142 are:

Long period of continuous separation between the parties;

Numerous litigations initiated by parties against each other and which has been pending for years;

Harassment and mental agony being caused to the parties due to litigations;

No possibility of reconciliation or amicable settlement either through Court or through family members;

Interest of the child born out of wedlock. For instance, his custody, education, general welfare, etc.

Maintenance of the wife if she is dependent;

Alternate accommodation for the wife and the child born out of wedlock.

The judgment rendered by the Supreme Court in Naveen Kohli v. Neelu Kohli,AIR 2006 SC 1675 is a landmark judgment on this issue and is still being followed. In fact, relying upon the said judgment, in Sanghamitra Ghosh v. Kajal Kumar Ghosh, (2007) 2 SCC 220 and Sukhendu Das v. Rita Mukherjee, AIR 2017 SC 5092, the Supreme Court dissolved the marriage as there was total disappearance of emotional substratum. Therefore, in order to ensure that the parties may live peacefully in future, it put a quietus to litigation between the parties. This was also considered to be in the interest of the child. Also, in Satish Sitole v. Ganga, AIR 2008 SC 3093, the Supreme Court dissolved the marriage as both parties had been living separately for the past 14 years and there was no scope of any reconciliation despite the birth of a male child.

Increased burden on the Supreme Court and pendency of cases:

However, the effect of this is increased burden on the Supreme Court. It is in public knowledge that the courts in India are overburdened with cases and a matter instituted in a court takes years to get decided. As of September 2020, there are over 55,000 cases pending in the Supreme Court, 51 lakhs cases pending in the High Courts, and 3.5 crore cases pending in the subordinate courts across India. Considering the fact that the Supreme Court is not a regular court of appeal and a large number of cases are already pending, shouldn’t the Parliament implement the proposed Amendment?

After perusing the proposed Amendment and also, various judgments of the Supreme Court, as aforementioned, it is clear that both provide for adequate safeguard for protecting the interest of spouses and the child. However, in the absence of implementation of the proposed Amendment, the burden on the Supreme Court is unnecessarily being increased. There have been instances where though parties have not been residing together for more than a decade; all attempts of reconciliation failed; custody of child was also not in dispute even then, the Family Court or the High Court did not grant divorce on the sole ground that it is only the Supreme Court which can dissolve the marriage on grounds of irretrievable breakdown of marriage. Therefore, after spending years in litigation awaiting the judgment of courts below, the party ultimately is constrained to approach the Supreme Court. Such cases can be taken care of without approaching the Supreme Court if the amendment, as proposed, is implemented. It would save a lot of time and money of parties, prevent unnecessary harassment due to long-drawn litigations, and reduce the burden on the Supreme Court.

Conclusion:

Therefore, the time is ripe for the Parliament to implement the proposed Amendment and include irretrievable breakdown of marriage as an additional ground for divorce in the Hindu Marriage Act. This will ensure that the parties aren’t forced to continue in a marriage which has broken beyond salvage with no possibility of reconciliation. Moreover, it is both – in public interest and in the interest of parties and their family members concerned to dissolve an emotionally dead marriage. The proposed Amendment, if implemented, would solve many problems such as:

No separate petition under Section 125, CrPC would be required to be filed for claiming maintenance;

No separate petition would have to be filed seeking custody of the child;

Before granting divorce, it would be seen that adequate protection is given to the parties to protect their financial and other interests;

Mud-slinging which leads to unnecessary and long drawn litigations will be avoided, and;

Such issues can be resolved in Family Court itself without approaching the High Court or the Supreme Court for that matter, thus, reducing the burden on them.

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REVISITING CYBER DEFAMATION LAWS IN INDIA & COMPARISON WITH ENGLISH LAW

Vinakshi Kadan and Bhawna Gandhi

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Cyber Defamation has become a major issue because of its repercussions rising up out of the wide-spread Coverage, Instantaneous Communication, Anonymity and Impersonation. In simple words, when defamation takes place through computers or web it is called cyber defamation. The simplicity with which the defamation should be possible utilizing any of the Digital Devices, for example, Mobile, Computer, and Laptop combined with the solace with which character can be satirize, the online defamation has gotten uncontrolled to settle the individual score for hurting the notorieties of individual, legislator and organizations. The effect of such ascriptions can be disturbed by Morphing, Fake Video and Voice, the controls that have gotten simple subsequent to the utilization of Artificial Intelligence and other trend setting innovations which likewise make their discovery more troublesome. Cyber Defamation is neither bound by time nor by national boundaries i.e. a person sitting in one corner of the world, can at any time easily cause damage to a person sitting in another corner of the world within a few minutes.

CYBER DEFAMATION & LEGISLATIVE FRAMEWORK

In India, defamation can be considered both a civil and a criminal offence, and the Indian judiciary provides legal remedies for the victims. Such an imputation must be made using electronic devices as per the Information Technology Act, 2000. The defamation which is into the online medium falls into the category of libel as the electronic records are designated as documents whether it may be written text, audio or video files. It was specifically observed by the Delhi High Court in the matter of Dharambir v. CBI (2011)that ‘Given the wide definition of the words documents and evidence in the amended section 3 of evidence act read section 2 (o) & (t) IT Act, there can be no doubt that an electronic record is a document’ and the same has been observed in the recent judgment by Supreme Court in the matter of P.Gopalkrishnan v. State of Kerala (2019). The appropriate step in such a case is two-fold, first, to initiate the proceeding for tracing the identity and second, to initiate the proceeding for criminal or civil defamation though these done alternatively or simultaneously which in turn implies to firstly locating the identity and then to initiate the criminal or civil proceeding. In India, Section 499 of the Indian Penal Code basically administers the law on defamation; be that as it may, it is relevant to take note of that the law has been reached out to “electronic reports”. Section 469 of the IPC (fabrication for motivation behind hurting notoriety) has been altered by the Information Technology Act, 2000 to incorporate ‘electronic record manufactured’ and now peruses overall as – whoever submits phony, planning that the report or electronic record fashioned will hurt the notoriety of any gathering, or realizing that it is probably going to be utilized for that reason, will be rebuffed with detainment of either portrayal for a term which may reach out to three years, and will likewise be at risk to fine. Section- 66A of Information and Technology Act 2000 (IT Act), was subdued by the Supreme Court of India in Shreya Singhal v. Union of India (2015) because of uncertainty in the meaning of the word ‘hostile’ in the Section. The segment expressed that sending any hostile message to a PC or some other specialized gadget would be an offense. Such liberated force, under Section- 66A, was abused by the Government in reducing and smothering individuals’ right to speak freely and articulation and thus cancelled. Section- 79 of the IT Act gives a sheltered harbour to middle people against any demonstration of defamation. Section- 79 gives that a middle person isn’t subject for outsider data, information, joins facilitated on its foundation. Notwithstanding, the sheltered harbour assurance is restricted to specific conditions viz. a go-between will be obligated in the event that it starts the transmission of such slanderous substance, chooses the collector of such substance or changes such substance. For the offence of cyber defamation to be made out, an accused person must have either made or published defamatory material through internet. While “making” usually means authorship, someone who repeats or copies defamatory content (with intent, etc) may also be liable, provided that such repetition or copying was intentional or deliberate. If intent is not proven, a person who is not the author or publisher can argue that the defamatory content was unknowingly disseminated. Courts have interpreted “making” and “publishing” to be supplementary terms. If a person merely writes defamatory content but does not publish or communicate it to others, the offence of defamation may not hold, as held in Rohini Singh v. State of Gujarat (2017). Therefore, a person alleging defamation must necessarily show that the defamatory content was meant for an audience. Taking into account the aforementioned, it very well may be reasoned that a delegate’s risk can be diminished by conforming to specific commitments, instance, receiving legal due industriousness, or upholding ‘notice and bring down’ techniques. The greatest test for Defamation in the Digital Space is against whom the activity ought to be started for defamation. The Spoofing of Identity, Impersonation and Anonymity is simple and as such knowing the personality of the individual who has caused the defamation may not be doable at the principal case and accordingly it might be hard to start the procedure for criminal defamation of recording the suit for harms for Defamation. The fitting advance in such a case is two-overlap, first, to start the procedure for following the personality and second, to start the procedure for criminal or common defamation however these done on the other hand or at the same time which thusly suggests to right off the bat finding the character and afterward to start the lawbreaker or common continuing. So as to follow the Identity, the Criminal Proceeding can be started for Defamation by documenting an objection under Section 200 Cr. P.C., joined by an application under Section 202 Cr. P.C. with a solicitation to court to guide the police to direct request to follow the character of an individual by finding IP address or gathering the other important confirmations from Internet. The other choice which likewise can be investigated especially in the situations where any cognizable offense is made out separated from the defamation, at that point to document criminal objection for enrolment of the FIR which may empower following of the Identity of the guilty party just as assortment of different confirmations to demonstrate the offense of defamation.

The primary goal for the abused party in such instances of Defamation is to get expel the substance from the Internet which can be conceivable just through the court with the exception of in cases including Obscenity. If there should arise an occurrence of a vulgar profile, the interpersonal interaction sites may expel the substance as it might disregard their own protection approaches. The cure of blocking/evacuation of the substance can be profited in the common just as criminal continuing. The evacuation of the substance can be practical just in situations where the culpable site is situated in India and if there should be an occurrence of unfamiliar site; the main choice is for hindering of the substance. With the assistance of AI, it is conceivable to make “profound fakes,” which are AI-upgraded counterfeit pictures and recordings and take influence of “an AI” calculation to embed faces and voices into video and sound chronicles of genuine individuals and empowers the production of practical pantomimes”. Profound phony innovation wrongly depicts individuals saying or doing things they never said or alibied, will get imperative to demonstrating honesty in the court. In 2012, an AI ‘chatbot’ named SimSimi, purportedly figured out how to show itself ‘Thai’ through correspondence with clients in Thailand. Utilizing the new dialect and expression, it had gained from the dealings with clients; SimSimi went on supposedly to slander the Thai Prime Minister. There will consistently be a hazard that AI programming will get data which is either bogus or depicts exact information in a manner by which bogus and abusive. Accordingly, the topic of who is subject, emerges. Another enormous test in instances of Online Defamation is to gather and save the computerized proof and to demonstrate their Authenticity. The consistence of state of Section- 65B and completing the scientific assessment might be important to demonstrate the case certain. If there should arise an occurrence of defamation, on the open gatherings, for example, on Whatsapp, Instagram and so forth demonstrating the distribution of the disparaging material may require proper criminological methodology to be received for safeguarding and validation of the electronic proof. Getting the cure if there should arise an occurrence of Online Defamation is troublesome and a greater amount of convoluted nature, yet whenever followed fittingly, utilizing specialized and legal strategy, it might be anything but difficult to demonstrate and indict the guilty party and furthermore to get the harms. Be that as it may, these cures are not compelling and adequate as when it could be implemented, the abusive material as sound, video or text would have accomplished the ideal effect of the guilty parties. These cures were presented for the defamation in physical space as opposed to online medium as the idea of online medium is particular from physical medium. In cyber space, the correspondence of distribution is moment and worldwide, caricaturing the personality and obscurity is very simple when contrasted with physical space. Further, the casualty will most likely be unable to deliver all the proof of correspondence, distribution or distributer as the equivalent can be gathered through requirement or court. Accordingly in an earnest need to alter the law to bring solution for online defamation which is immediate like momentary correspondence through which it spreads and falling effect made by it.

In its first ever case on Cyber Defamation in SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, wherein a disgruntled employee sent derogatory, defamatory, vulgar and abusive emails to the company’s fellow employers and to its subsidiaries all over the world with an intent to defame the company along with its managing director, the High Court of Delhi granted ex-parte ad interim injunction restraining the defendant from defaming the Plaintiff in both the physical and in the cyber space. This order of Delhi High Court assumes tremendous significance as this is for the first time that an Indian Court assumes jurisdiction in a matter concerning cyber defamation and grants an ex-parte injunction restraining the defendant from defaming the plaintiffs by sending derogatory, defamatory, abusive and obscene emails either to the plaintiffs or their subsidiaries. In another case in Odisha, Kalandi Charan Lenka v. State of Odisha, the Petitioner was stalked online and a fake account was created in her name with an intention to defame the Petitioner. The High Court of Odisha held that the said act of the accused falls under the offence of cyber defamation and the accused is liable for his offences of defamation through the means of fake obscene images and texts. The Delhi High Court in Tata Sons Limited v. Greenpeace International 178 (2011) DLT 705 held, “It is true that in the modern era defamatory material may be communicated broadly and rapidly via other media as well. The international distribution of newspapers, syndicated wire services, facsimile transmissions, radio and satellite television broadcasting are but some examples. Nevertheless, Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility. The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.” Very recently in the case of Swami Ramdev v. Facebook Inc 263 (2019) DLT 689, The Delhi High Court passed global injunctions to evacuate all abusive substance posted online against the plaintiff dependent on a book named “Godman to Tycoon-the untold story of Baba Ramdev”, with no regional cutoff, referencing that if the substance is transferred or on the off chance that is situated in India on a Computer Resource, at that point the Courts in India ought to have International Jurisdiction to pass Worldwide Injunctions.

CYBER DEFAMATION & FUNDAMENTAL RIGHTS

Freedom of Speech and Expression as enshrined in the Constitution under Article 19 (1) (a), gives that all citizens will reserve the option to freedom of speech and articulation. In any case, such freedom is dependent upon sensible limitation. The right to reputation of a living person under Article 21 cannot be sacrificed or crucified at the altar of another’s right to freedom of speech. Both have to be harmonized, as no amount of damages can redeem the adverse impact on a person’s reputation.  The insurance of notoriety of someone else falls inside the ambit of sensible limitation and any remark or comment which hampers the notoriety of someone else (except if the announcement is valid) would welcome risk under the law of defamation. The easy exchange of information and data over the web has made it a basic hotspot for defamation. Despite the fact that, there are laws set up which deny individuals from posting such substance on the web, a great many people don’t know about the equivalent or are too careless to even consider realizing whether such substance is disparaging or not. Now and again, when free speech runs opposing to an individual’s notoriety it gets appropriate for the State to set up a limit, in case that free speech turns into a weapon in the possession of specific individuals. There is an urgent need of a framework which teaches and makes individuals mindful of what to do and what not to do, what’s up and what is correct and what is disparaging and what isn’t slanderous in the cyber space. Further, the delegates which give such an open stage should screen the substance posted on it and take fitting activities against such clients who post such abusive substance so as to maintain a strategic distance from redundancy later on. In the infamous case of Subramaniam Swamy v. Union of India, (2014) the petitioner argued that any attempt to fetter or bind the expression of public opinion, perception and criticism, by launching criminal prosecution, would affect the health of the democracy. The Supreme Court, however, upheld the constitutional validity of criminal defamation, stating that the right to free speech cannot mean that one citizen can defame the other.

COMPARATIVE ANALYSIS: INDIA & UK

A correlation of cyber security approaches across India and the UK mirrors a few ongoing ideas in certain zones and huge difference in others. The distinctions in approaches can to a great extent be credited to varying conditions in the two nations. Be that as it may, regardless of a huge hole as far as verifiable access to innovation and assets to convey towards ensuring cyber space, India has, in the course of the most recent two decades, progressively accentuated cyber security as a significant strategy concern. The UK has genuinely evolved procedures and frameworks, and cyber security has been a strategy worry for extensively longer than in India. Normally, the UK cyber security system is more far reaching and firm than in India. In any case, utilizing the markers in the Global Cybersecurity Index, India isn’t altogether far away from the UK cyber security duty and advancement is concerned. This may likewise in part be a reason for the two nations being not able to apply previous laws to address new circumstances in cyberspace. Strategy in the two countries is drawn closer from a power point of view, for example from the casing of national security plans. So also, knowledge and resistance establishments remain profoundly associated with cyber security in the two locales. Be that as it may, the distinguishing proof of entertainers, dangers and points and goals of the cyber security strategy contrasts extensively. The UK is impressively more open to multi-partner contribution to trim its strategies, while cyber security in India stays bifurcated between private activities and government activities, which will in general spotlight on national security concerns. The UK’s grip of multi-partner standards ought to be received in Indian approach, which has just perceived the significance of multi-stakeholderism in the global setting. The Indian government can do significantly more as far as spreading mindfulness about cyber security and creating indigenous cyber security research. India could likewise helpfully utilize the delicate methodologies taken by the UK to boost organizations to consent to security best practices without fundamentally ordering severe guideline, similar to the execution of the cyber basics plot. Central parts of cyber security framework stay normal across the two wards, for example, the foundation of crisis reaction organizations and basic data insurance. Other than these, there are a few dissimilar establishments taking care of divergent commands on cyber security. Thus, it is important that the proposed National Cyber Coordination Center, on the lines of the UK’s National Cyber Security Center, as a one stop look for cyber security-related concerns. Further, the jobs of every association must be obviously separated to maintain a strategic distance from cover and guarantee responsibility. India’s universal way to deal with cyber wrongdoing appears to have been held up for discretionary reasons. The Budapest Treaty setting up worldwide participation on cyber security and cyber wrongdoing, of which the UK is likewise (yet belatedly) a part, is a significant part of universal coordination on cyber security issues, which would be a lot harder to haggle on a respective premise. It is suggested that India return to the chance of going into worldwide duties given the huge level of participation required for exploring cyber dangers. Indian cyber security is likewise un-established in major standards on which such enactment ought to be based. The essential standards UK strategy perceives guarantees that the primary methodology for cyber security remembers parts of common freedoms and person’s interests in the web as a mutual asset. While this may put imperatives on the administration’s hold over cyber security, security strategy must be adjusted towards maintaining common freedoms, and not the opposite way around. The UK in any case, in its activities, needs to adjust its national security worries with common freedoms worries around protection and reconnaissance.

Vinakshi Kadan is an Advocate practising in Supreme Court and Bhawna Gandhi is practising in Delhi High Court.

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The Indian position on the issue of sedition

The publication or utterance of seditious, obscene, slanderous, libellous or defamatory matter shall be actionable or punishable in accordance with law.

J. Sai Deepak

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It is sometimes claimed in popular discourse that the Constituent Assembly was dead set against the inclusion of sedition as a restriction on free speech and expression, and therefore, it is argued that the presence of Section 124A of the IPC penalising sedition is an insult to the intent of the framers of the Constitution. However, no credible explanation is offered by the proponents of this school of thought as to what explains the continued presence of Section 124A, which, it can be safely presumed, the framers of the Constitution were aware of when the draft predecessors Article 19 and its limitations were being debated and put together in and by the Constituent Assembly.

It would help to go a few steps before the Constituent Assembly and take a look at the evolution of Indian thought on sedition before we allow pre-conceived notions to dictate the course of our opinions. Let’s start with the 33rd Session of the Indian National Congress held in 1918 wherein the following Resolution on the right to self-determination was moved by Annie Besant and unanimously adopted:

“BE IT RESOLVED

1. That this Congress claims recognition of India by the British Parliament and by the Peace Conference as one of the progressive Nations to whom the principle of Self-Determination should be applied.

2. That in the practical application of the principle in India the first step should be —

(a) the removal of all hindrances to free discussion, and therefore the immediate repeal of all laws, regulations and ordinances restricting the free discussion of political questions whether in the press, private or public meeting, or otherwise, so that the legitimate aspirations and opinion of all residents in India may be fearlessly expressed; further, the abolition of the laws, regulations, and ordinances, which confer on the Executive the power to arrest, detain, intern, extern, or imprison any British subject in India, outside the processes of ordinary civil or criminal law, and the assimilation of the law of sedition to that of England.

(b) The passing of an Act of Parliament which will establish at an early date complete Responsible Government in India.

(c) When complete Responsible Government shall be thus established, the final authority in all internal affairs shall be the Supreme Legislative Assembly as voicing the will of the Indian Nation.

RESOLVED FURTHER

(d) That in the reconstruction of Imperial polity, whether in matters affecting the inner relations of the nations constituting it, in questions of foreign, policy or in the League of Nations, India shall be accorded the same position as the Self-Governing Dominions.”

Clause 2(a) of the Resolution makes it abundantly clear that what was sought was (a) the abolition of those laws which enabled the Executive to abridge personal liberty outside the processes of ordinary civil or criminal law; and (b) the assimilation of the law of sedition to that of England. In other words, sedition was not sought to be abolished but it was sought to be brought at par with the law in England.

Let’s cut to 1947 when after the founding of the Constituent Assembly, multiple sub-committees were formed to prepare their recommendations on various aspects such as fundamental rights, rights of minorities and the like. It is the proceedings of the sub-committee on fundamental rights which is relevant to the discussion at hand. Members of the said sub-committee presented their respective drafts of provisions on fundamental rights. The journey of Article 19 began with draft Article V of Shri K.M. Munshi, which was submitted by him to the sub-committee on fundamental rights in March 1947. The said Article V read as under:

Article V—(1) There shall be liberty for the exercise of the following rights, subject to public order and morality: —

(a) The right of the citizens to freedom of speech and expression.

The publication or utterance of seditious, obscene, slanderous, libellous or defamatory matter shall be actionable or punishable in accordance with law.

This morphed into Clause 9 of the Draft Report of the said sub-committee dated April 3, 1947, and read as follows:

Clause 9. There shall be liberty for the exercise of the following rights subject to public order and morality: (a) The right of every citizen to freedom of speech and expression.

The publication or utterance of seditious, obscene, slanderous, libellous or defamatory matter shall be actionable or punishable in accordance with law…

Did the restriction based on sedition vanish when the final report was prepared by the sub-committee on Fundamental Rights? No. Here’s Clause 10 of the Report of the Sub-committee dated April 16, 1947:

Clause 10. There shall be liberty for the exercise of the following rights subject to public order and morality or to the existence of grave emergency declared to be such by the Government of the Union or the unit concerned whereby the security of the Union or the unit, as the case may be, is threatened:

(a) The right of every citizen to freedom of speech and expression.

The publication or utterance of seditious, obscene, slanderous, libellous or defamatory matter shall be actionable or punishable in accordance with law.

Did the Advisory Committee, to which all the Sub-committees submitted their respective reports, do away with sedition? No. On the contrary, the proceedings of the Advisory Committee on April 21 and 22, 1947 make it clear that while discussing the preamble to Clause 10 (one of the precursors to Article 19), many members of the Committee were in favour of the clause dealing with seditious speech but did not wish to curtail the powers of the legislature, judiciary or executive to deal with such penal laws later. Importantly, seditious speech or publication was discussed alongside speech that spreads communal hatred, unrest, or distrust in the State.

Did the Drafting Committee, under the stewardship of Dr. Ambedkar, remove sedition from the grounds of restrictions on free speech and expression? No. Here’s Clause 15 based on the proceedings of the Drafting Committee on October 31, 1947:

Clause 15. (i) Subject to public order, health and morality, every citizen shall have the right—

(a) to freedom of speech and expression;

*[Provided that the publication or utterances of seditious, slanderous, libellous or defamatory matter shall be actionable or punishable in accordance with law:]

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India;

(f) to acquire, hold and dispose of property; and

(g) to practise any profession, or to carry on any occupation, trade or business.

[(2) [Held over.]

[(3) Nothing in this section shall prevent the State from making any law imposing restrictions on the exercise of any of the rights conferred by clauses (d),(e), (f) and (g) of sub-section (i) if public interest so requires for the promotion of the interests of any tribes specified in such law.]

[(4) Nothing in clause (g) of sub-section (1) shall affect the operation of any law prescribing or empowering any authority to prescribe the professional or technical qualifications which are to be requisite for the practising of any profession, or the carrying on of any occupation, trade or business.]

[6. No person shall be deprived of his life or personal liberty without due process of law, nor shall any person be denied equality before the law [or the equal protection of the laws] within the territory of India

Sedition remained in the subsequent versions of Clause 15 which is reflected in the proceedings of the Drafting Committee on November 1, 1947, November 4, 1947, November 5, 1947 and January 1948. When the Draft Constitution was presented to the Constituent Assembly by the Drafting Committee, Clause 15 had been renumbered to Draft Clause 13 and as of February 21, 1948, it read as under:

Clause 13 – Protection of certain rights regarding freedom of speech, etc..

(1) Subject to , the other provisions of this article, all citizens shall have the right —

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India;

(f) to acquire, hold and dispose of property; and

(g) to practise any profession, or to carry on any occupation, trade or business.

(2) Nothing in sub-clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law, relating to libel, slander, defamation, sedition or any other matter which offends against decency or morality or undermines the authority or foundation of the State.

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law, or prevent the State from making any law, imposing in the interests of public order restrictions on the exercise of the right conferred by the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law, or prevent the State from making any law, imposing, in, the interests of the general public, restrictions on, the exercise of the right conferred: by the said sub-clause.

(5) Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law, or prevent the State from making any law, imposing restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any aboriginal tribe.

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law, or prevent the State from making any law, imposing in the interests of public order, morality or health, restrictions on the exercise of the right conferred by the said sub-clause and in particular prescribing, or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business

This Draft Clause 13, which later became Article 19, was debated on several dates in the Constituent Assembly. So, what was the Assembly’s position on sedition? I will discuss this in the next piece.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.

Let’s cut to 1947 when after the founding of the Constituent Assembly, multiple sub-committees were formed to prepare their recommendations on various aspects such as fundamental rights, rights of minorities and the like. It is the proceedings of the sub-committee on fundamental rights which is relevant to the discussion at hand. Members of the said sub-committee presented their respective drafts of provisions on fundamental rights.

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Legally Speaking

Default bail: Period of 90/60 days will commence from date of remand only, not from any unlawful custody prior to it, says Bombay High Court

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Bombay High Court

In a clear, categorical, cogent, convincing and commendable judgment titled Gautam P Navlakha Vs. National Investigation Agency in Criminal Appeal Stamp No. 1707 of 2020 delivered by a two Judge Bench of the Bombay High Court comprising of Justice SS Shinde and Justice MS Karnik that was reserved on 16 December 2020 and pronounced finally on 8 February 2021, it was held in no uncertain terms that the time spent in “unlawful custody” cannot be included while computing the 90 days period prescribed for grant of default bail under Section 167(2) of the Criminal Procedure Code. This was held so while rejecting senior journalist-activist Gautam Navlakha’s petition for bail. It may be recalled that Navlakha was arrested in the Elgar Parishad – Maoist Links case twice. The first time that he was arrested was on August 28, 2018 and the second time then after he surrendered on April 14, 2020.

To start with, the ball is set rolling in para 1 of this leading case authored by Justice MS Karnik for himself and Justice SS Shinde wherein it is put forth that, “This is an Appeal under section 21 of the National Investigation Agency Act, 2008 (‘the Act’ for short) against order dated 12/07/2020 passed by the NIA Special Court in NIA Case No. 414 of 2020. The impugned order was passed on the Exhibit No. 276 application made by the Appellant before the NIA Court for statutory bail under section 167 (2) of Code of Criminal Procedure (for short ‘CrPC’) read with section 43 of the Unlawful Activities Prevention Act, 1967 (‘UAP’ Act for short).”

While elaborating on the facts of the case in brief that lead to the filing of the present appeal, it is then stated in para 2 that, “The Appellant states that he is a 69 years old scholar, writer, peace and civil rights activist and journalist of long standing associated with the Economic and Political Weekly and other well regarded publications. It is stated that the Appellant belongs to the People’s Union of Democratic Rights (‘PUDR’ for short) many of his Petitions have led to landmark judgments.”

While elaborating on the charges and FIR filed against him, the Bench then states in para 3 that, “The Appellant came to be arrested on 28/10/2018 at his residence in Delhi in connection with F.I.R. No. 4 of 2018 registered at Vishrambag Police Station, Pune on 08/01/2018. The said F.I.R. has since been numbered as RC 01/2020/NIA/Mum dated 24/01/2020 registered by NIA, Mumbai under sections 121, 121-A, 124-A, 153-A, 505(1)(b), 117, 120-B read with section 34 of Indian Penal Code (‘IPC’ for short) & sections 13, 16, 17, 18, 18-B, 20, 38, 39, 40 of UAP Act.”

It would be useful to mention that it is then stated in para 4 that, “The High Court of Delhi in Gautam Navlakha Vs State W.P.(Cr) No. 2559 of 2018 vide order dated 28/08/2018 stayed the Appellant’s transit remand proceedings and directed that the Appellant be kept under house arrest under guard of Delhi Police Special Cell along with local police that had come to arrest the Appellant.”

It would also be worthwhile to mention that it is then stated in para 5 that, “The Hon’ble Supreme Court in Romila Thapar vs. Union of India and ors. in Writ Petition (Crl) 261 of 2018 passed an interim order dated 29/08/2018 extending the Appellant’s house arrest, which was further extended from time to time till final disposal of the Petition on 28/09/2018. On 28/09/2018, the Hon’ble Supreme Court pronounced the judgment in Romila Thapar and gave the accused persons liberty to pursue appropriate legal remedies.”

Be it noted, the Bench then observes in para 6 that, “The High Court of Delhi by its order dated 01/10/2018 passed in Gautam Navlakha Vs. State Writ Petition (Cr) No. 2559 of 2018 quashed the Appellant’s arrest. This order was challenged by the State of Maharashtra (the prosecuting agency before transfer to NIA) before the Hon’ble Supreme Court in State of Maharashtra Vs. Gautam Navlakha SLP(Crl.) 8616/2018.”

As we see, it is then pointed out in para 7 that, “The Appellant by this time had spent 34 days in custody (house arrest) i.e. from 28/08/2018 to 01/10/2018, first under the orders of High Court of Delhi and then under the orders of the Hon’ble Supreme Court in ‘Romila Thapar’.”

What next follows is then stated in para 8 that, “The Appellant filed Writ Petition (Criminal) 4425 of 2018 in this Court for quashing the F.I.R. against him which was dismissed on 13/09/2019. This Court in the interregnum had ordered that no coercive steps be taken against the Appellant.”

While proceeding ahead, the Bench then states in para 9 that, “The order dated 13/09/2019 passed by this Court dismissing the Writ Petition for quashing of F.I.R. was challenged by the Appellant in SLP (Criminal) 8862 of 2019. The Hon’ble Supreme Court granted the Appellant 4 weeks protection with liberty to seek pre-arrest bail/ protection before the concerned Court. The Appellant then filed an anticipatory bail application before the Sessions Court Pune (the Court where the trial was pending before transfer to NIA) and then approached this Court. The anticipatory bail application came to be rejected by this Court on 14/02/2020.”

While stating about the appellant availing his legal remedies, the Bench then mentions in para 10 that, “The Appellant then approached the Hon’ble Supreme Court by way of (SLP) (Criminal) 1842 of 2020. By an order dated 16/03/2020 the Hon’ble Supreme Court directed the Appellant to surrender within 3 weeks. The appellant sought extension of time to surrender by an application dated 08/04/2020 due to Covid-19 pandemic. The Hon’ble Supreme Court granted one more week to the Appellant to surrender. The Appellant surrendered to NIA Delhi on 14/04/2020 in compliance with the order passed by the Hon’ble Supreme Court. It is stated by the Appellant that he could not surrender to NIA, Mumbai as there was ban on inter- state travel due to Covide-19 pandemic.”

Be it noted, para 17 then brings out that, “Learned Senior Advocate Mr.Kapil Sibal appearing on behalf of the Appellant submitted that the Appellant’s total custody had exceeded 90 days and no charge-sheet had been filed nor extension of time sought for fling charge-sheet and hence, the Appellant is entitled for statutory bail under section 167(2) of CrPC read with 43 of UAP Act. According to learned Senior Advocate 90 days custody of the Appellant is as follows.

“From 28.8.2018 – 1.10.2018 (custody in his house) = 34 days (excluding the last day)

From 14.4.2020 – 25.4.2020 (NIA custody) = 11 days (excluding the last day)

From 25.4.2020 – 12.6.2020 (Judicial custody) = 48 days (excluding the last day)

TOTAL 93 DAYS

Simply put, the Bench then brings out in para 33 that, “Though the facts have been set out in detail earlier, however for appreciating the controversy, it would be apposite to concisely refer to a few basic facts again.

Please read concluding on thedailyguardian.com

Pursuant to registration of FIR, the Appellant was restrained in his house by the Maharashtra Police on 28.08.2018. The learned CMM granted transit remand to the Appellant on 28.08.2018. The High Court of Delhi stayed the Appellant’s transit remand proceedings on the same day i.e. 28.08.2018. Apart from the other directions, the following direction in paragraph 5(6) of the order which reads thus came to be issued :-

“5(6) The Petitioner shall, in the meanwhile, be kept at the same place from where he was picked up with two guards of the Special Cell, Delhi Police along with local Police that was originally here to arrest the Petitioner, outside the house. Barring his lawyers, and the ordinary residents of the house, the Petitioner shall not meet any other persons or step out of the premises till further orders.”

Going forward, the Bench then envisages in para 34 that, “The interim directions were continued from time to time. The High Court of Delhi finally on 01.10.2018 held that the order passed by the learned Chief Metropolitan Magistrate (CMM for short) on 28.08.2018 granting transit remand to the Appellant is unsustainable in law. It was held that there were several non-compliances of the mandatory requirement of Article 22(1), Article 22(2) of the Constitution and Section 167 read with Section 57 and 41(1)(ba) of the Cr.P.C., which are mandatory in nature. The High Court of Delhi also observed that in view of Section 56 read with Section 57 of the Cr.P.C., in the absence of the remand order of the learned CMM, the detention of the Petitioner, which has clearly exceeded 24 hours, is again untenable in law. Consequently, it was ordered that the house arrest of the Petitioner came to an end. It was clarified that the order will not preclude the State of Maharashtra from proceeding further in accordance with law.”

More significantly, the Bench then after considering the versions of both sides goes on to add in para 39 that, “The bone of contention is the period of 34 days (28/08/2018 to 01/10/2018) which the appellant was under custody (house arrest). Undoubtedly, this period has to be regarded as custody as the appellant admittedly was under house arrest. However, in our opinion, the intervening orders passed would be relevant for determining the nature of this custody for the purpose of Section 167 of Cr.P.C to enable the appellant to claim default bail. Following circumstances cumulatively leads us to conclude that the appellant is not entitled to the benefit of 34 days for claiming statutory default bail.

(1) The transit remand order came to be stayed by the Delhi High Court on 28/10/2018.

(2) The appellant was placed under house arrest pursuant to the directions of the Delhi High Court during which period the investigating officer did not get the opportunity of interrogating him.

(3) The High Court of Delhi quashed the appellant’s arrest holding that the appellant’s detention is illegal.

(4) Pursuant to the declaration of the detention as illegal, the appellant was set at liberty. It is not as if the appellant was released on bail but after being set at liberty, the appellant is protected by an order of this Court restraining the investigating agency from taking coercive steps during the pendency of appellant’s challenge to the FIR.

(5) The Hon’ble Supreme Court having dismissed the challenge of the appellant to quash FIR granted 4 weeks protection with liberty to seek pre arrest bail/protection before the Sessions Court. The Hon’ble Supreme Court granted the appellant time to surrender after the appellant failed to serve pre arrest bail. The appellant ultimately surrendered to NIA Delhi on 14/04/2020. Only after the appellant surrendered, the Magistrate authorised the police custody whereupon the appellant was interrogated.”

Equally significant is what is then stated in para 45 that, “In the present case, no doubt the Appellant was under house arrest. The transit remand ordered by the CMM on 28.08.2018 was stayed by the High Court of Delhi on very same day. During the period of house arrest, barring the Appellant’s lawyers and ordinary residents of the house, the Appellant was not supposed to meet any one or step out of the premises till further orders. The High Court of Delhi had ordered that the Appellant be kept at the same place from where he was picked up with two guards of the Special Cell, Delhi Police along with local police that was originally present to arrest the Appellant, outside the house. It is therefore obvious that the Investigating Agency/Investigating Officer did not have any access to him nor had an occasion to interrogate him. As the transit remand order was stayed, it cannot be said that the appellant was under detention of police for investigation.”

What’s more, it is then elucidated in para 46 that, “Further under Sub-Section (2) of Section 167 of Cr.P.C. the Magistrate has to authorise the detention of the accused in such custody as such Magistrate thinks ft, for a term not exceeding fifteen days. The CMM granted transit remand on 28.08.2018. The righ Court of Delhi by an interim order having stayed the transit remand and then having finally set aside the order of transit remand thereby holding the detention during the period 28.08.2018 upto 01.10.2018 (period of house arrest) as illegal, then, in our opinion, in the absence of there being an authorised detention by an order of Magistrate, the Appellant cannot claim entitlement to statutory default bail under Sub-Section (2) of Section 167 of the Cr.P.C. The mandate of Sub-Section (2) of Section 167 of the Cr.P.C. makes it clear that for claiming availment of default bail under Section 167(2) of the Cr.P.C. the basic requirement is that the detention of the accused in the custody has to be authorised by the Magistrate. Once the authorisation by the Magistrate is declared illegal consequently rendering the detention itself illegal, the said period (house arrest custody) cannot be construed to be an authorised custody within the meaning of Section 167(2) of CrPC.”

No less significant is what is then stated in para 47 that, “The Apex Court in the case of Chaganti Satyanarayan and others (supra) held that the period of 90 days will commence only from the date of remand and not from any anterior date inspite of the fact that the accused may have been taken into custody earlier by a police officer and deprived of his liberty. Thus, from a reading of Section 167(2) of Cr.P.C., we are of the view that the essential requisite for availing statutory bail is that the accused must have undergone the authorised period of detention ordered by the Magistrate. It is not possible for us to construe any and every detention which may have resulted in deprivation of liberty of the accused to be an authorised detention by the Magistrate within the meaning of Section 167(2) of the Cr.P.C.”

Quite remarkably, the Bench then holds in para 48 that, “It is not possible for us to fathom a situation where detention of the Appellant though held to be illegal & unlawful rendering the authorisation by the Magistrate untenable should still be construed as an authorised detention for the purpose of Sub-Section (2) of Section 167 of the Cr.P.C.. In our view sans any valid authorisation/order of the Magistrate detaining the appellant, the incumbent will not be entitled to a default bail. It is therefore obvious that Sub-Section (2) of Section 167 of the Cr.P.C. necessarily presupposes a detention authorised by a Magistrate, for only then the said period of authorised detention can count towards calculating 90 days period of custody prescribed under Section (2) of Section 167 of the Cr.P.C. for the purpose of default bail.”

In view of the above, the Bench then holds in para 49 that, “Resultantly we hold that the period from 28.08.2018 to 01.10.2018 has to be excluded from computing the period of 90 days as the said custody has been held to be unsustainable in law by the High Court of Delhi. The High Court of Delhi also set aside the order passed by the learned CMM on 28.08.2018 granting transit remand to the Appellant. It is not in dispute that thereafter the Appellant applied for Anticipatory Bail which came to rejected at all stages and ultimately the Appellant surrendered on 14.04.2020. It is only consequent to the surrender that the Magistrate then authorise the police custody.”

We also need to pay attention that it is henceforth observed in para 50 that, “The decisions relied upon by the learned Senior Advocate Shri Sibal have no application in the facts of the present case. None of the decisions relied upon by learned Senior Advocate Mr. Sibal deals with the question whether sans any authorisation of the detention by the Magistrate under Section 167(2) of Cr.P.C. and particularly when the detention has been held to be unlawful, can this period of custody still be included in the 90 days period prescribed for grant of default bail.”

Now coming to the concluding paras. Para 51 states that, “We have gone through the order passed by the Special Judge, NIA. We see no reason to interfere with the well reasoned order of the learned Special Judge. The Appeal Stands dismissed.” Finally, it is then stated in the last para 52 that, “This judgment will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this judgment.”

In conclusion, the Bombay High Court has rejected senior journalist-activist Gautam Navlakha’s petition for bail. It minced no words to hold that, “It is not possible for us to fathom a situation where detention of the Appellant (Navlakha) though held to be illegal and unlawful rendering the authorization by the Magistrate untenable should be construed as an authorized detention for the purpose of Sub-Section (2) of Section 167 of the Cr.PC.” The Division Bench of Justices SS Shinde and MS Karnik held that the 34 days Navlakha had spent under house arrest between August 28, 2018 – October 10, 2018 cannot be used to calculate his total detention period especially since his arrest as well as the Magistrate’s transit remand was found to be illegal by the Delhi High Court. We also see that the Bench relied on the decision of Chaganti Satyanarayan and others v. State of Andhra Pradesh (1986) 3 SCC 141 where the Supreme Court in Paragraph 24 held that the period of 90 days or 60 days, as the case may be, will commence running only from the date of remand and not from any anterior date in spite of the fact that the accused may have been taken into custody earlier by a police officer and deprived of his liberty.

While definitely this notable ruling is a big setback for Gautam Navlakha but all the doors are still not closed for him yet. He still has the option to approach the Supreme Court. His lawyer who is none other than the eminent and legendary Kapil Sibal who is former Union Law Minister as also senior Supreme Court lawyer will surely further strenuously argue the case with full vigour in the top court. But in Bombay High Court we see that Kapil Sibal’s arguments failed to convince the Judges in this case as we have already discussed above!

Sanjeev Sirohi, Advocate,

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