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Foreign Contribution (Regulation) Amendment Act 2010: A case of over-regulation or need of hour?

Sharad Abhyankar Vanita Bhargava and Milind Sharma

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Since its notification on 29 September 2020, the Foreign Contribution Regulation Amendment Act (“FCRA Amendment”) has been in the news for many reasons. Before we look at the amendments carried out in 2020, it would be appropriate to have a look at the historical context of this law which has been in the statute book for about 45 years. The Foreign Contribution Regulation Act, 1976 (“FCRA 1976”) was the first law to regulate the acceptance and utilisation of foreign contribution or foreign hospitality by certain persons or associations, with a view to ensuring that parliamentary institutions, political associations and academic and other voluntary organisations, as well as individuals working in the important areas of national life, may function in a manner consistent with the values of a sovereign democratic republic, and for matters connected therewith. Like many other laws, the stakeholders faced many difficulties in complying with the provisions of FCRA 1976. In order to bring greater transparency in the dealings in foreign contribution and acceptance of foreign hospitality, the law was substantially overhauled and was substituted by the Foreign Contribution Regulation Act, 2010 (“FCRA 2010”).

While some of the provisions of FCRA 1976 required some rethinking, the extent of remodelling the law was clear from the preamble of FCRA 2010. One of the prominent objects of FCRA 2010 was to prohibit acceptance and utilisation of foreign contribution and foreign hospitality for any activities detrimental to the national interest. The radical change of the legislative mindset from ‘regulation’ to ‘prohibition’ was mired in political undertones. The new law emphasised defining restrictions on negative attributes and departed from enabling persons working in important areas of national life to function with values enshrined in the Constitution of India.

The ambit of FCRA 2010 is pervasive and all-encompassing in the field of foreign funding in the voluntary and social sector. It also provides the executive with power, to enforce a system of checks and balances.

At the outset it should be noted that under Section 3 of the FCRA 2010, the following persons are prohibited from accepting foreign contribution or foreign hospitality: candidates for election; correspondents, columnists, cartoonists, editors, owners, printers or publishers of news in print, audio or audio-visual or electronic communication mode; judges, Government servants or employees of any corporation or any other body controlled or owned by the Government; members of any legislature; any political party or office bearer thereof; organisations of a political nature; associations or companies engaged in the production or broadcast of audio news or audio-visual news or current affairs programmes through any electronic mode; individuals or associations which have been prohibited from receiving foreign contribution.

FCRA 2010 also empowers the Central Government to notify any organisation as an organisation of ‘political nature’. Further, the organisations registered under FCRA 2010 are mandated to renew their certification every five years.

While the changes revealed a paradigm shift, the obedience of this law has been dismal over the past several years. Needless to say, this has resulted in the cancellation of a significant percentage of registrations by the Ministry of Home Affairs, the governing ministry under FCRA 2010. As of October 2020, out of a total of 49,861 organisations registered under FCRA 2010, only 22,427 i.e. less than 45% are active as of date! Many organisations registered under FCRA 2010 have failed in submitting the returns for several years and their registrations have been either suspended or cancelled. Several organisations have also failed in periodically renewing their registrations, a feature which was introduced only in 2010. Organisations registered under FCRA 2010 have therefore suffered a lack of credibility due to the apathy towards compliance.

In order to enhance transparency, streamline and monitor the funds received by the organisations registered under FCRA 2010, and weed out the entities which were not utilising the foreign contribution for the purpose it was received, the recent amendment was brought about.

The FCRA Amendment Bill was passed by the Lok Sabha on 21 September 2020, by Rajya Sabha on 23 September 2020, and received the assent of the President on 28 September 2020. On 29 September 2020, it was published in the Official Gazette of India and notified on the same day.

The major changes brought upon by the recent amendment include:

• As noted above, Section 3 of FCRA 2010 includes the list of persons who are prohibited from receiving the contribution. The list has now been amended to include a ‘public servant’ as defined under the Indian Penal Code, 1860. Such addition will primarily prohibit persons, in the service or pay-roll of the Government or remunerated by fees or commission for the performance of any public duty for the Government, from receiving any foreign contribution. The amendment appears to be based on the presumption that acceptance of foreign contribution by such persons may prevent rational decision-making by those discharging public duty. It is also expected to prevent such public servants from being influenced by funding organisations in any manner.

• Section 7 of the FCRA 2010 has been amended to prohibit the transfer of any foreign contribution received by organisation registered under FCRA 2010 to any other entity including those who are also registered under FCRA 2010. Previously, such transfer of foreign contribution by person registered under FCRA 2010 to another person registered under FCRA 2010 was permitted. A transfer to organisation which was not registered under FCRA 2010 was permitted only after obtaining express approval from the government. All forms of transfer of foreign contribution are now disallowed without an exception. This amendment seeks to restrict NGOs from acting as fundraisers for other NGOs. It is pertinent to note that the Ministry of Home Affairs has been emphasising the need for utilisation of funds for the purpose of the grant and not deviating from such objective. It is apprehended that this amendment would severely impact the availability of resources at the grass-root level. In our view, this apprehension is somewhat misplaced. The law intends to prohibit “transfer” of foreign contribution and not de-legitimatise “utilisation”. An organisation registered under FCRA 2010 can certainly collaborate with other NGOs to fulfil its objective and use the foreign contribution for its purpose. Surely, some of the past foreign contribution utilisation practices and procedures will need to be realigned with the new normal under the amended FCRA regime.

• Section 8 of the FCRA 2010, has been amended whereby the deployment of foreign contribution towards ‘administrative expenses’ has been reduced from 50% to 20%. Rule 5 under Foreign Contribution (Regulation) Rules, 2011 prescribes what constitutes “administrative expenses”. Permitted administrative expenses include salaries, wages, travel expenses of the members of the Executive Committee or Governing Council; all expenses towards hiring and salaries, wages or any kind of remuneration paid (including the cost of travel) to personnel for management of the NGO activities; all expenses related to consumables like electricity and water charges, telephone charges, postal charges, repairs to premise(s) for NGO’s office; rent of premises, repairs to premises and expenses on other utilities; stationery and printing charges, office equipment, transport and travel charges of the members of the Executive Committee or Governing Council; the cost of accounting for and administering funds; expenses towards running and maintenance of vehicles; the cost of writing and filing reports; and legal and professional charges.

The purpose of such an amendment is to prevent the misuse of foreign contribution by some entities and to promote utilisation of such funds towards the objective of the grant as noted in their registration. The amendment would not only improve the transparency of utilisation of foreign contribution but also bring additional comfort to the contributors of funds that a substantial portion of their contribution will indeed be utilised for the stated objective and purpose. Considering that under the Companies Act, 2013, only 5% of the CSR contribution can be attributed to the administrative expenses of the NGOs, a 20% limit gives a reasonable budget for the NGO to be run professionally.

• Amendment to section 11 of FCRA 2010 introduces a summary enquiry procedure that can result in restriction on unutilised foreign contribution even when the enquiry is pending if the Central Government has a reason to believe that any entity registered under FCRA 2010 has contravened the provisions of FCRA 2010, based on any information or report. Such utilisation or receipt of remaining foreign contribution can now be done only after approval from the Central Government. The said amendment appears to be preventive in nature and empowers the Central Government to prevent illegal receipt and utilisation of foreign contribution at the initial stage itself. Pertinently, such power is already conferred on the Central Government under Section 13 of FCRA which deals with the suspension of the license under FCRA 2010, pending inquiry for contravention of FCRA 2010.

• The FCRA Amendment also enables an organisation registered under FCRA 2010 to voluntarily surrender its registration under the FCRA regime pursuant to the provisions of new Section 14A. Such surrender of registration would only be allowed by the Central Government if is satisfied that the said entity has not contravened any provisions of the FCRA after due inquiry and any asset received as the foreign contribution is vested to the authority designated under Section 15 of FCRA 2010. This shall help the entities to exit in an orderly manner when the purpose for which such entity was formed is fulfilled or has been rendered useless for any reason. Further, as the unutilised money shall remain with the designated authority, it shall become its responsibility to utilise it for the purposes which are in the interest of the nation.

• Another major amendment pertains to the maintenance of designated bank accounts for receiving foreign contribution under FCRA 2010. While the FCRA regime always required the foreign contribution to be received in a specified bank account notified by the authority under FCRA 2010, it was noticed that many NGOs had defaulted in updating their bank accounts, or in some cases, the banks lagged in upgrading the system for core banking facilities. In February 2017, the Ministry of Home Affairs had published a list of more than 3700 NGOs registered under FCRA 2010 who failed in maintaining bank accounts with core banking facility. Accordingly, in order to streamline the monitoring of the fund flow of foreign contribution received in India, section 17 of the FCRA 2010 was amended. On or before 31 March 2021, every entity registered under FCRA 2010 would be required to open a designated FCRA Account with State Bank of India, New Delhi Main Branch at 11, Sansad Marg, New Delhi – 110 001. The Central Government has clarified that the entities registered under FCRA 2010 will be permitted to operate their existing FCRA accounts in other banks up to the opening of the FCRA designated account with State Bank of India or 31 March 2021 whichever is earlier. Further, the foreign contribution can be transferred by the entity registered under FCRA 2010 in any other account for the utilisation of such funds. The amendment would enable the Central Government to track the inflow of foreign contribution more effectively in an orderly manner. In order to remove practical challenges faced by NGOs, the Central Government has clarified that the NGOs need not visit the New Delhi main branch of the SBI. Instead, they may approach the nearest SBI branch (or any other branch of their choice) for taking action with regard to opening their new account with the SBI.

• Most of the countries in the world recognise that companies, limited liability partnerships, or trusts can continue to function in an opaque manner. Therefore, it has become necessary for the Central Government to know the natural persons who control or manage such companies, societies or trusts. Continuing to comply with India’s international obligations, the FCRA Amendment now imposes stricter KYC norms on the office bearers or directors while seeking registration or renewal of registration under the FCRA regime. The office bearers or directors or other key functionaries are required to provide their Aadhaar number issued under the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, or a copy of their passport or Overseas Citizen of India Card, in case of non-residents.

• Lastly, the FCRA Amendment would permit the Central Government to suspend the registration under FCRA 2010 for a period of 360 days instead of the erstwhile limit of 180 days. Any such executive powers cannot be exercised arbitrarily, and any such actions will continue to be subject to judicial review by courts.

By the time this article is published, a month would have elapsed since the notification of the FCRA Amendment. It is quite concerning that the Standard Operating Practice (“SOP”) for opening and operating the FCRA Accounts with State Bank of India has not been published. The NGOs will find it difficult to scramble compliance with the new procedures if there is any further delay in issuance of the SOP.

On the whole, the message is loud and clear, the NGOs receiving foreign contribution have to show greater transparency and respect the stricter compliance regime. The NGOs should also ensure they follow the best practices recommended by the Ministry of Home including:

• conducting appropriate due diligence about the foreign donor and the terms of the grant to ensure that no legal provisions are contravened;

accepting foreign contribu• tion only if the institution is registered under FCRA 2010 and the registration is subsisting in accordance with applicable law;

• ensuring that the institution is compliant with ongoing obligations, such as reporting and filing returns with the Ministry of Home Affairs to avoid suspension or prohibitory orders;

not deviating from the ob• jects of the institution;

not deviating from the purpose of the specific grant;

• not encouraging cash withdrawals;

• not transferring foreign contribution to other persons except as set out in the purpose of the grant; and

• not using the foreign contribution account for any domestic receipts.

The Ministry of Home Affairs on its part has come forward by issuing an advisory to the FCRA registered NGOs and announced that the funds received in their FCRA accounts, in State Bank of India, can be transferred to the other accounts of the organisation for utilisation or investments. It is pertinent that the Ministry of Home Affairs actively discourages FCRA registered institutions from investing foreign contribution in mutual funds or other speculative investments.

As noted above, the amendment to FCRA 2010 has been brought by the Central Government to strengthen the compliance mechanism and enhance transparency and accountability. Further, it gives power to the Central Government and authorities to clamp down on errant entities that do not follow the law as laid down under FCRA 2010. Vide this amendment, the Central Government/ authorities can effectively put a stay on utilisation of funds received under FCRA 2010 even if it has been received when the registration was effective though only after having reason to suspect that there is a contravention of the law and after an inquiry including the summary inquiry. This is a welcome change as such action was not clear under pre-amendment FCRA 2010 and such a bar could have been put only when the registration under FCRA 2010 was suspended. Since this is a matter of improving the checks and balances, it is expected that while taking such coercive action against an entity, the Central Government/ authority shall pass a speaking order which will give a chance to the alleged errant entity to put forward its case as well.

Like most other legislations at work, effective execution and implementation is the key to the success of the new FCRA regime in the social sector. It is also hoped that the new law will bring a new spirit of compliance-oriented NGOs to bring a lasting impression and measurable impact on the Indian social sector.

The authors are advocates at Khaitan & Co. Sharad Abhyankar (Partner) is part of the corporate practice at Mumbai, Vanita Bhargava (Partner) and Milind Sharma (Associate) are part of the Dispute Resolution Practice at Delhi.

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Legally Speaking

REFUSAL TO GIVE TEA NOT SUDDEN OR GRAVE PROVOCATION: BOMBAY HC

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In an enduring, empowering, enlightening, enriching and encouraging judgment for women titled Santosh Mahadev Atkar vs The State of Maharashtra in Criminal Appeal No. 544 of 2019 delivered recently on February 2, 2021, the Bombay High Court has observed that the medieval notion of the wife being the ‘property of the husband to do as he wishes, still persists’. The Bombay High Court thus refused to show any leniency to a man convicted for culpable homicide not amounting to murder. A single Judge Bench of Justice Revati Mohite Dere held clearly, cogently and convincingly that the husband’s contention that his wife, by refusing to make tea, offered a grave and sudden provocation to be “ludicrous”, “clearly untenable and unsustainable”. It must be mentioned here categorically, clearly and cogently that the wife, struck by her husband with a hammer for suspecting her character and refusing to make tea had eventually succumbed to her injuries.

To start with, the ball is set rolling in para 2 of this learned, latest, laudable and landmark judgment by first and foremost observing that, “The appellant has impugned the judgment and order dated 1st July 2016 passed by the learned Additional Sessions Judge, Pandharpur in Sessions Case No. 13/2014, convicting and sentencing the appellant as under :

– for the offence punishable under 304, Part II of the Indian Penal Code, to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/-, in default of payment of fine, to suffer simple imprisonment for 6 months;

– for the offence punishable under Section 201 of the Indian Penal Code, to suffer rigorous imprisonment for 2 years and to pay a fine of Rs.3,000/-, in default of payment of fine, to suffer simple imprisonment for 3 months.

Both the aforesaid sentences were directed to run concurrently.”

To put things in perspective, it is then stated in para 3 while elaborating on the facts of the case that, “A few facts as are necessary to decide the case are as under :

The appellant is the husband, who was married to Manisha (deceased) on 15th December 2005. From the said wedlock, the appellant and Manisha were blessed with a daughter-Rohini. The appellant and Manisha were residing in the Servants’ Quarters of Vitthal Hospital at Pandharpur along with the appellant’s mother, who was serving in the said Hospital. According to the prosecution, the appellant was suspecting Manisha’s character, as a result of which, there used to be frequent quarrels between them. The incident is stated to have taken place on 19th December 2013 at about 6:00 a.m. It is the prosecution case that Manisha was leaving the house on the said date and time, without preparing tea, on account of which, there was exchange of words between the appellant and deceased Manisha. As the appellant was suspecting Manisha’s character and as she refused to make tea for the appellant, the appellant is alleged to have given a blow on Manisha’s head from behind, with a hammer. The said incident is alleged to have been witnessed by Rohini (appellant and Manisha’s daughter), who, at the relevant time, was aged 6 years. It is the prosecution case that soon after Manisha was assaulted, the appellant gave her a bath, wiped the blood-stains from the spot and thereafter took Manisha to Vitthal Hospital. As Manisha’s condition was critical, the doctor who treated Manisha asked the appellant to shift Manisha to the Civil Hospital, Solapur. Pursuant thereto, Manisha was shifted to the Civil Hospital, Solapur. Throughout, Manisha’s condition was critical and she was unable to speak and eventually on 25th December 2013, Manisha succumbed to her injury.

In the meantime, i.e. on 19th December 2013, Manisha’s uncle Macchindra Waghmare (PW 4), on learning that Manisha was admitted to the hospital, immediately rushed to the hospital i.e. Vitthal Hospital, where the appellant informed Macchindra that he had assaulted Manisha. Pursuant thereto, Macchindra Waghmare (PW 4) lodged a complaint with the Pandharpur Police Station. On registration of the FIR, investigation commenced, statements of witnesses were recorded, panchanamas were drawn and after investigation, charge-sheet was filed as against the appellant for the offence punishable under Section 302 and 201 of the Indian Penal Code, in the Court of the learned Magistrate at Pandharpur.

The said offence being Sessions triable, the case was committed to the Court of Sessions at Pandharpur. Charge was framed against the appellant for the aforesaid offence, to which, the appellant pleaded not guilty and claimed to be tried. The prosecution, in support of its case, examined 12 witnesses. Thereafter, Section 313 statement of the appellant was recorded. The learned Judge, after hearing the parties, was pleased to convict the appellant for the offence as stated in para 2 hereinabove.”

As it turned out, after hearing both the parties, Justice Revati then observed in para 6 that, “Perused the papers. Having heard learned counsel for the appellant and the learned A.P.P at length and after considering the submissions canvassed by them and after perusing the evidence on record, I am of the opinion that no interference is warranted in the impugned judgment and order, for the reasons set-out hereunder; As noted above, the prosecution allegation as against the appellant is that the appellant would suspect the character of his wifeManisha. The said fact is borne out from the evidence of PW 4- Macchindra (Manisha’s uncle, who is the first informant in the said case) as well as the evidence of PW 6-Nandabai (Manisha’s mother). Both the said witnesses have categorically in their evidence stated about the ill-treatment meted out by the appellant to Manisha i.e. of suspecting her character and of physical assault. The incident in question is alleged to have taken place on 19th December 2013 at about 6:00 a.m. at the Servants’ Quarter, where the appellant was staying with Manisha and their daughter Rohini. The said Servants’ Quarter belonged to the appellant’s mother, who was working in the hospital. It is not in dispute that at the relevant time, the appellant’s mother was not present in the house. As noted above, there is also an extra-judicial confession made by the appellant to PW 4- Macchindra, PW 6-Nandabai and PW 7-Dr. Dhotre (Medical Officer at Vitthal Hospital, Pandharpur).”

To be sure, it is then stated in para 7 that, “Coming to the evidence on record with respect to ill-treatment meted out by the applicant to Manisha and the extra-judicial confession made by the applicant, the relevant witnesses in this regard are PW 4- Macchindra and PW 6-Nandabai. As far as PW 4-Macchindra’s evidence is concerned, he has stated that deceased-Manisha was his niece; that she was married to the appellant on 15th December 2005; that they were living in a Servants’ Quarter of Vitthal Hospital for about 3 years prior to the incident; that Rohini (appellant and Manisha’s daughter) was also residing with them; that the appellant was suspecting Manisha’s character and would quarrel with her on account of the same and that on 19th December 2013, the appellant assaulted Manisha on her head, resulting in serious injuries, pursuant to which, the appellant admitted Manisha to Vitthal Hospital. PW 4-Macchindra has further stated that Manisha was shifted from Vitthal Hospital to Civil Hospital, as she was seriously injured. He has stated that Manisha was unconscious and had sustained injuries on her head. He has further stated that when he questioned the appellant as to what had happened, the appellant disclosed to him that at 6:00 a.m, he had asked Manisha to prepare tea and that when she refused to prepare tea, he assaulted her with a hammer on her head, pursuant to which, he brought her to the Civil Hospital. PW 4-Macchindra, on the basis of the said disclosure made by the appellant, lodged a complaint/FIR, as against the appellant with the Pandharpur Police Station. The said FIR is at Exhibit-23. Although several suggestions were made to the said witness, nothing is elicited in his cross-examination to disbelieve the said witness. A suggestion was also made to the said witness that the deceased fell, as a result of which, she sustained an injury on her head, which suggestion was denied by the witness. It was also brought on record that the appellant had filed a complaint against the said witness and Manisha’s parents in 2010, as a result of which, they were falsely implicating him in the said case, which suggestion was also denied by the said witness.”

Be it noted, it is then enunciated in para 8 that, “The evidence of PW 6-Nandabai (Manisha’s mother) is similar to the evidence of PW 4-Macchindra with respect to the ill-treatment meted out by the appellant to her daughter-Manisha i.e. the appellant used to suspect Manisha’s character; would quarrel with her and also assault her. PW 6-Nandabai has stated that when she, along with others, visited the Civil Hospital, Solapur, they learnt that Manisha was serious; that she was not opening her eyes nor could she talk. She has stated that when she asked the appellant what had happened, the appellant disclosed that in the morning at 6:00 a.m, as Manisha had not given him tea and as he suspected her character, he hit her on her head, resulting in Manisha sustaining an injury. Again, nothing material is brought in the cross-examination, so as to disbelieve or discredit this witness. The suggestions made to the said witness i.e. PW 6-Nandabai have been categorically denied by her i.e. that Manisha was injured in an accident; that no such disclosure was made by the appellant to her; and that they had lodged a false complaint against him because of an earlier complaint lodged by the appellant against them in 2010. Thus, from the evidence on record, it is evident that the appellant would suspect Manisha’s character and that the appellant had made an extra-judicial confession to PW 4-Macchindra and PW 6-Nandabai that he had assaulted Manisha.”

It is also really worth noting that it is then observed in para 9 that, “It is pertinent to note that the evidence of both the aforesaid witnesses i.e. PW 4-Macchindra and PW 6-Nandabai is, duly corroborated by an independent witness i.e. PW 7- Dr. Bajrang Dhotre.

PW 7- Dr. Dhotre was working as a Medical Officer at Vitthal Hospital, Pandharpur at the relevant time. He has stated that on 19th December 2013 at about 7:00 a.m., Manisha was admitted in the hospital; that when he examined her, he found that she was in a serious condition, as she had suffered heavy bleeding. He had stated that the said patient was brought by Santosh Atkar (appellant). He has further stated that the appellant informed him i.e. gave history that he had hit Manisha at 6:30 a.m. in the morning with a hammer at the residential quarters of Vitthal Hospital. PW 7-Dr. Dhotre has stated that the said history given by the appellant was reduced into writing by him in the appellant’s words. PW 7-Dr. Dhotre has identified his handwriting on the case papers which are exhibited at Exhibit-28. Exhibit 28 i.e. case papers of Manisha read as under :

“Patient brought by Mr. Santosh Mahadeo Aatkar c alleged history an assault, he hited by hammer (हातोडा), today morning at about 6:30 A.M.; at Vitthal Hospital residence quarters.”

PW 7- Dr. Dhotre found the following injuries on Manisha :

i) C.L.W. measuring 4 Cms. X 3.5 Cms., oozing of blood was present. It was present at left parietal region, 5 Cms. away from the midline, and was placed anterio posteriorely. On clinical examination it was depressed fracture of skull.

ii) C.L.W. measuring 3 X 1 Cm. was vertical in direction, was muscle deep and blood mark was present. It was situated at medial aspect of left forearm in its lower 1/3rd part.

iii) C.L.W. measuring 2 X 0.5 Cm. was vertical in direction, and blood mark was present, and was at medial to injury No.2 and it was parallel to it.

iv) C.L.W. measuring 1 X 0.5 Cm. was horizontal in direction, and blood mark was present and was at dorsum of left little finger on its terminal part of 1st digit.

v) Haematoma measuring 5 X 3 Cms. was tender and was at dorsum of right hand.

vi) Abrasion 2 X 1 Cm. was read in colour and was at right patellor region. It is simple in nature.

All injuries are within 6 hours old. Injury Nos. 1, 2, 3, 4 was caused by hard and blunt and hard and rough object. Injury Nos. 5 and 6 are caused by hard and rough object.”

PW 7-Dr. Dhotre advised CT-Scan of the patient-Manisha and asked her to be shifted to a higher center for further treatment, pursuant to which, Manisha was taken to the Civil Hospital at Solapur. Thus, the extrajudicial confession made by the appellant to PW 4-Macchindra and PW 6- Nandabai is duly corroborated by PW 7-Dr. Dhotre and is supported by Exhibit 28 i.e. the case papers. It appears that after Manisha was shifted to the Civil Hospital at Solapur, efforts were made by the police to record her statement, however, she was not found in a condition to record her statement. On 25th December 2013, Manisha succumbed to her injuries. The cause of death was stated to be head injury. Column 19 of the postmortem report reveals the following internal injuries :

“(i) Underscalp haematoma present over left side fronto parieto tempora occipital region size 13 cm x 7 cm;

(ii) Comminuted depressed fracture of left parietal bone of size 4 cm x 3.5 cm;

(iii) – Extradural haematoma present over left parietal region about 50 gms,

– Subdural haematoma present all over brain about 100 gms;

– Subarachnoid haemorrhage present all over brain surface as think blood film,

– Meninges torn,

– Brain congested & ocetomatovy.””

Needless to say, it is then stated in para 10 that, “Thus, it appears that the appellant assaulted Manisha on her head with a hammer from behind, resulting in a grievous injury on the head and other injuries on her person. The situs of injury is consistent with the evidence on record.”

As we see, Justice Revati then mentions in para 14 that, “Learned counsel for the appellant relied on the judgment of the Apex Court in the case of Madanlal vs. State of Punjab [1992 Supp (2) SCC 233] . He submitted that in the said case, the accused was convicted for the offence under Section 304 Part (II) of the Indian Penal Code and was sentenced to suffer imprisonment of 4 years. He submitted that as the accused’s act was a result of grave and sudden provocation, his sentence was reduced to the period undergone. According to the learned counsel for the appellant, since the appellant in the present case, acted under grave and sudden provocation, the appellant’s sentence also be reduced to the period undergone by him.”

More appropriately, Justice Revati then while making the right reasoning points out in para 15 that, “A perusal of the said judgment relied upon by the learned counsel is clearly distinguishable and has no bearing on the facts in the present case. The case before the Apex Court was that the appellant therein, had caused serious injury to the deceased with a handle of a pump; the motive of the crime was that the accused therein was hungry for 3 days and when he asked for food from the deceased Sewadar of the `Dera’ where free food was being supplied, the deceased refused and consequently, the appellant, in a fit of anger, attacked the deceased on being deprived of the power of self control. Admittedly, in that case, the appellant and the deceased were not known to each other and the motive was hunger for 3 days. In the present case, the appellant was suspecting his wife’s character and would assault her on account of the same. On the day of the incident on being refused tea, the appellant assaulted Manisha with a hammer. The deceased-Manisha, by refusing to make tea for the appellant, by no stretch of imagination, can be said to have offered grave and sudden provocation for the appellant to assault her, much less, such a brutal assault.”

Most significantly and most remarkably, what forms the cornerstone and bedrock of this judgment is then waxed eloquently, elegantly and effectively as stated in para 16 that, “It would not be out of place to observe that a wife is not a chattel or an object. Marriage ideally is a partnership based on equality. More often than not, it is far from that. Cases such as these, are not uncommon. Such cases, reflect the imbalance of gender – skewed patriarchy, the socio-cultural milieu one has grown up in, which often seeps into a marital relationship. There is imbalance of gender roles, where wife as a homemaker is expected to do all the household chores. Emotional labour in a marriage is also expected to be done by the wife. Coupled with these imbalances in the equation, is the imbalance of expectation and subjugation. Social conditions of women also make them handover themselves to their spouses. Thus, men, in such cases, consider themselves as primary partners and their wives, `chattel’. To quote from a study, ‘The Man Who Mistook His Wife For Chattel’ by Margo Wilson and Martin Daly:

“by `proprietary’, we mean first that men lay claim to particular women as songbirds lay claim to territories, as lions lay claim to a kill, or as people of both sexes lay claim to valuables. Having located an individually recognizable and potentially defensible resource packet, the proprietary creature proceeds to advertise and exercise the intention of defending it from rivals. Proprietariness has the further implication, possibly peculiar to the human case, of a sense of right or entitlement”.

This medieval notion of the wife being the property of the husband to do as he wishes, unfortunately, still persists in the majority mindset. Nothing but notions of patriarchy. Thus, the submission of the learned counsel for the appellant that the deceased by refusing to make tea for the appellant offered grave and sudden provocation, is ludicrous, clearly untenable and unsustainable and as such deserves to be rejected. In the facts, the appellant not only assaulted his wife, but also after assaulting her, wasted precious and crucial time i.e. around one hour, in covering his act by destroying evidence, by wiping the blood from the spot and bathing Manisha before taking her to the hospital. If the appellant had rushed Manisha to the hospital, soon after the incident, possibly her life could have been saved and Rohini would not have lost her mother.”

Finally and as a corollary, it is then stated by Justice Revati in para 17 that, “Considering the overwhelming evidence on record pointing to the complicity, no infirmity can be found in the impugned judgment and order convicting and sentencing the appellant for the offences mentioned in para 2 hereinabove. The facts on record also do not warrant any reduction in the sentence awarded to the appellant. Accordingly, the appeal is dismissed.”

On an unflattering note, it must be stated quite uprightly that Justice Revati Mohite Dere has written a very bold, brilliant, brief, balanced and blunt judgment which makes it absolutely clear in no uncertain terms that violence by a husband against her wife cannot be justified on the pretext of grave and sudden provocation as cited here which simply does not hold any water! This alone explains why Justice Revati has rightly termed in her 19-page order that the husband’s contention that his wife by refusing to make tea offered a grave and sudden provocation was “ludicrous”, “clearly untenable and unsustainable”. Very rightly so! It is a worth emulating judgment in similar such cases!

Sanjeev Sirohi, Advocate,

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Legally Speaking

SEDITION: DISAFFECTION VS DISAPPROBATION

J. Sai Deepak

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In my last piece, I had started a discussion on Section 124A of the IPC which deals with sedition. I had broadly set out the history of the provision, including its original language in 1870 and the amendments undertaken in 1898 and thereafter, leading to the provision as it stands today. In this piece, I will discuss a few landmark judgements which were delivered before the Constitution came into force on January 26, 1950 to understand the treatment of the provision by British Indian Courts.

The first such judgement is Queen-Empress vs Jogendra Chunder Bose And Ors. (1891) delivered by the Calcutta High Court at a time when the provision read as under:

124A. EXCITING DISAFFECTION

Whoever by words, either spoken or intended to be read, or by signs, or by visible representation, or otherwise, excites, or attempts to excite, feelings of disaffection to the Government established by law in British India, shall be punished with transportation for life or for any term, to which, fine may be added, or with imprisonment for a term which may extend to three years, to which fine may be added, or with fine.

Explanation-Such a disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government and to support the lawful authority of the Government against unlawful attempts to subvert or resist that authority, is not disaffection. Therefore, the making of comments on the measures of the Government, with the intention of exciting only this species of disapprobation, is not an offence within this clause.

A reading of the provision makes it clear that it struck a distinction between exciting feelings of “disaffection” on the one hand, and “disapprobation” of the measures of the Government on the other. According to the Calcutta High Court in 1891, the former referred to a challenge to the lawful authority of the government whereas the latter referred to disapproval of the Government’s measures without calling for disobedience to the authority of the government. Therefore, words, written or spoken, or signs or any form of visible representation which were intended to excite feelings of disaffection towards the government, which were distinct from merely disapprobation or disapproval of the government’s measures, attracted the provision. Mere intention to create disaffection as deciphered from the written or spoken word or visible representation was sufficient, without the need for that intention to have achieved fruition. Following are the relevant extracts from the judgement:

“If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them. It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill-will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling. The second question for you, gentlemen of the Jury, then, will be whether, upon the evidence before you, you think that the articles circulated by the prisoners were calculated to create such feelings in the minds of their readers, and if so, whether they intended to create such feeling by their circulation.”

Subsequently, in Queen-Empress v. Amba Prasad (1897), on the meaning of “disaffection” and contrasting it with “disapprobation”, the Bombay High Court reiterated as follows the earlier judgement of the Calcutta High Court:

“It (disaffection) means hatred, enmity, dislike, hostility, contempt and every form of ill-will to the Government. ‘Disloyalty’ is perhaps the best general term, comprehending every possible form of bad feeling to the Government. That is what the law means by the disaffection which a man must not excite or attempt to excite: he must not make or try to make others feel enmity of any kind towards the Government. You will observe that the amount or intensity of the disaffection is absolutely immaterial, except perhaps in dealing with the question of punishment: if a man excites or attempts to excite feelings of disaffection, great or small, he is guilty under the section. In the next place it is absolutely immaterial whether any feelings of disaffection have been excited or not by the publication in question.

.. The offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would doubtless fall within Section 124A, and would probably fall within other sections of the Penal Code. But even if he neither excited nor intended to excite any rebellion, or outbreak or forcible resistance to the authority of the Government, still, if he tried to excite feelings of enmity to the Government, that is sufficient to make him guilty under the section.

It (the provision) does not apply to any writing which consists not merely of comments upon Government measures, but of attacks upon the Government itself. It would apply to any criticisms of legislative enactments, such as the Epidemic Diseases Act, or any particular tax, or of administrative measures, such as the steps taken by the Government for the suppression of plague or famine. But if you come to the conclusion that these writings are an attack, not merely upon such measures as these, but upon the Government itself, its existence, its essential characteristics, its motives or its feelings towards the people, then you must put aside the explanation altogether and apply the first clause of the section.

What is the meaning of ‘disapprobation’ of Government measures as contrasted with ‘disaffection’ to the Government? I agree with Sir Comer Petheram that while disaffection means the absence of affection, or enmity, disapprobation means simply disapproval; and that it is quite possible to like or be loyal to anyone, whether an individual or a Government, and at the same time to disapprove strongly of his or its measures. This distinction is the essence of the section. It shows clearly what a public speaker or writer may do, and what he may not do. A man may criticise or comment upon any measure or act of the Government, whether legislative or executive, and freely express his opinion upon it. He may discuss the Income-Tax Act, the Epidemic Diseases Act, or any military expedition, or the suppression of plague or famine, or the administration of justice. He may express the strongest condemnation of such measures and he may do so severely, and even unreasonably, perversely and unfairly. So long as he confines himself to that, he will be protected by the explanation. But if he goes beyond that, and, whether in the course of comments upon measures or not, holds up the Government itself to the hatred or contempt of his readers,–as, for instance, by attributing to it every sort of evil and misfortune suffered by the people, or dwelling adversely on its foreign origin and character, or imputing to it base motives, or accusing it of hostility or indifference to the welfare of the people-then he is guilty under the section, and the explanation will not save him.

To come within the protection of the explanation, a writing must not only be the making of comments on Government measures with the intention of exciting only disapprobation of them as distinguished from disaffection to the Government, but the disapprobation must be ‘compatible’ with a disposition to render obedience to the lawful authority of the Government and to support the lawful authority of the Government against unlawful attempts to subvert or resist that authority.”

This position was endorsed in subsequent cases. However, to clarify the scope of the provision as well as the exceptions carved out in the explanation, the provision was amended as follows in 1898 and the word sedition was used in title for the first time:

124A. SEDITION

Whoever by words, either spoken or written, or by signs or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards Her Majesty or the Government established by law in British India, shall be punished with transportation for life or any shorter term, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.–The expression ‘disaffection’ includes disloyalty and all feelings of enmity.

Explanation 2.–Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3.–Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection do not constitute an offence under this section

In the next piece, I will discuss the debates in the Constituent Assembly relating to “sedition”.

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

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Enka Insaat vs Chubb: What UK Supreme Court affirmed?

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INTRODUCTION

The five-judge bench of UK Supreme Court on 9 October 2020 pronounced a landmark judgment in Enka Insaat Vs Sanayi AS vs OOO Insurance Company Chubb [2020] UKSC 38, which is considered to be a leading authority in the arbitration regime on the governing law of arbitration agreements and the role of the courts of the seat in granting anti-suit relief.

FACTS

The claimant (“Enka”) is a Turkish company carrying on an international construction and engineering business based in Turkey but with a substantial presence and history of operations in Russia whereas the First Defendant (“Chubb Russia”) is a Russian company and part of the well-known Chubb insurance group. In the present case Enka was one of the subcontractors amongst others providing services in connection with a power plant for the Defendant (“Chubb Russia”).

On 1st February 2016 a severe fire caused massive damage to the plant. The owner, Unipro, claimed from its insurer, Chubb (in this case). In May 2019 Chubb Russia commenced proceedings against Enka and 10 other parties in the Russia (“Russian Proceedings” in Arbitrazh Court), seeking damages in relation to a massive fire in February 2016 at the power plant in Russia. However, over this claim, Chubb Russia asserted that “the accident was caused by defects (deficiencies) in the design, structures, fabrication and installation of the [power plant] including fuel oil pipelines”. To all this, Enka asserted that it had no liability and could have no liability, on the basis that in November 2014 the works which were alleged to have caused the fire had been excluded from the scope of works to be performed by Enka and had subsequently been performed by another contractor.

On 17 September 2019 Enka filed a motion in the Russian proceedings to have Chubb Russia’s claim against it dismissed (or “left without consideration”) pursuant to article 148(5) of the Arbitrazh Procedure Code, which is intended to give effect to Russia’s obligations under article II(3) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (“the New York Convention”) to refer to arbitration parties who have agreed to submit to arbitration a dispute of which a court of a contracting state is seized. It was well argued and contended by Enka that the claim against it fell within the scope of the arbitration agreement contained in article 50.1 of the construction contract and ought therefore to be resolved, not by the Russian courts, but by an arbitration conducted in accordance with that provision in London. Interestingly after some hearings, the judge in the Russian proceedings announced her decisions (a) not to grant Enka’s motion to refer the claim against it to arbitration and (b) to dismiss Chubb Russia’s claims against all the defendants on the merits. Meanwhile, Enka had on 16 September 2019 brought an arbitration claim in the Commercial Court in London seeking an anti-suit injunction to restrain Chubb Russia from further pursuing the Russian proceedings against Enka on the ground that this was a breach of the arbitration agreement in article 50.1 of the construction contract.

DECISIONS OF THE LOWER COURTS

On 15 October 2019 Carr J declined to grant an interim anti-suit injunction but gave directions for an expedited trial. The trial took place on 11 and 12 December 2019 before Andrew Baker J. He gave judgment on 20 December 2019, dismissing Enka’s claims against all the defendants. His primary reason for doing so was that he considered the appropriate forum to decide whether Chubb Russia’s claim against Enka falls within the arbitration agreement to be the Moscow Arbitrazh Court and not the English Commercial Court.

To note, Andrew Baker also relied on the fact that Enka did not seek an interim order from an arbitral tribunal, and that it did participate to some extent in the Russian court proceedings.

Aggrieved by the decision, Enka applied to the Court of Appeal for permission to appeal from this decision. The application was granted on 6 February 2020 and the appeal was heard on 7 and 8 April 2020. On 29 April 2020 the Court of Appeal (Flaux, Males and Popplewell LJJ) allowed Enka’s appeal and issued an anti-suit injunction restraining Chubb Russia from continuing the Russian proceedings. This appellate court swept the decision of Andrew Baker on the court that he made a wrong decision regarding the law governing the Arbitration Proceeding.

THE COURT OF APPEAL

The court also added that On forum non conveniens  grounds, the previous decision was wrong in principle. 

First, the choice of the seat of the arbitration is an agreement by the parties to submit to the jurisdiction of the courts of that seat. 

Secondly, the grant of an anti-suit injunction to restrain a breach or threatened breach of the arbitration agreement is an exercise of such powers.

The English Court as the court of the seat of the arbitration is for that reason the appropriate forum to exercise the jurisdiction to grant anti-suit relief. It is required to decide whether threatened or actual proceedings constitute a breach of the arbitration agreement, and if they do, to protect the integrity of the arbitration agreement by granting anti-suit relief unless there is a strong reason for not doing so. That is part of the supervisory jurisdiction of the court of the seat, to which the parties submit by choosing the place of the seat. There is no room for the application of any forum non conveniens consideration: either the forum conveniens question does not arise or it is automatically answered in favour of the English Court as the court of the seat.

Further, In order to decide whether to make an anti-suit injunction, the Court would need to decide whether the arbitration clause covered the dispute in question. This required a decision as to what law governed the arbitration agreement. This cannot be decided simply on the basis that the contract provides for the law governing the whole contract, because the arbitration agreement is considered a separate agreement whose governing law might be different (but usually is not). This is particularly possible where the seat of arbitration is different from the governing law, because that opens the way for the argument that it would make more sense for the arbitration agreement to be governed by the law of the place where the arbitration will be seated. Generally there is a presumption that the governing law of the arbitration agreement will be the same as the seat of arbitration.

Therefore, in light of these considerations, The Court of appeal concluded in this case that, even if the main contract was governed by Russian law, it made more sense for the arbitration agreement to be governed by the law of England, which the parties had chosen as the seat of arbitration and hence On the main issue of determining the proper law of the arbitration agreement, the Court of Appeal clarified the relevant principles. It is well established that the proper law of an arbitration agreement (“AA law”) may not be the same as the proper law of the main contract.

The court also clarified that the English Courts will exercise their “curial Jurisdiction” to grant anti-injunction based on the parties choice of London as an arbitration seat and regardless of the law governing the AA. The court also emphasized that the “anti-suit injunction jurisdiction is concerned to protect and enforce the integrity of arbitration agreement” and hence the role of the curial court is to “interrogate the substantive jurisdiction of the arbitral tribunal (or the putative or potential tribunal if none has been or is intended to be appointed) in determining whether the foreign proceedings are a breach of the agreement to arbitrate the dispute in question.” The court also pointed out that even in cases where the AA is governed by foreign law, consideration of foreign conveniens and comity should not be taken into account by English Courts in deciding the grant of anti-suit injunctions.

DECISION OF THE SUPREME COURT

In the landmark judgment given by Lord Hamblen and Lord Leggatt (with which Lord Kerr agreed), the Supreme Court confirmed that, under English common law, the search for the main contract law is governed by the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament, see Article 3.1 and 4). However, Questions regarding the law governing arbitration agreements, on the other hand, are not covered by the Rome I Regulation and is excluded from the preview of Article 1(2)(e). The AA law is to be determined by applying the three stage test required by English common law conflict of laws rules, namely:

IS THERE AN EXPRESS CHOICE OF LAW?

If not, is there an implied choice of law?

If not, with what system of law does the arbitration agreement have its closest and most real connection?

The rules of English law on contractual interpretation will be applied by the English Court to decide the issue.

The court then relied on a previous decision where the valiant attempt by Hamblen J (as he then was) in Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi AS v VSC Steel Co Ltd [2013] EWHC 4071 (Comm); [2014] 1 Lloyd’s Rep 479, to set out, as clearly as possible, the relevant principles to determine the law governing the AA.

Even if an arbitration agreement forms part of a matrix contract (as is commonly the case), its proper law may not be the same as that of the matrix contract.

The proper law is to be determined by undertaking a three-stage enquiry into (i) express choice, (ii) implied choice and (iii) the system of law with which the arbitration agreement has the closest and most real connection.

Where the matrix contract does not contain an express governing law clause, the significance of the choice of seat of the arbitration is likely to be “overwhelming”. That is because the system of law of the country seat will usually be that with which the arbitration agreement has its closest and most real connection.

Where the matrix contract contains an express choice of law, this is a strong indication or pointer in relation to the parties’ intention as to the governing law of the agreement to arbitrate, in the absence of any indication to the contrary.

The choice of a different country for the seat of the arbitration is a factor pointing the other way. However, it may not in itself be sufficient to displace the indication of choice implicit in the express choice of law to govern the matrix contract.

Where there are sufficient factors pointing the other way to negate the implied choice derived from the express choice of law in the matrix contract the arbitration agreement will be governed by the law with which it has the closest and most real connection. That is likely to be the law of the country of seat, being the place where the arbitration is to be held and which will exercise the supporting and supervisory jurisdiction necessary to ensure that the procedure is effective.”

The principal rationale for treating an express choice of main contract law as indicative of a choice of AA law is because businessmen do not usually intend that their relationship should be governed by more than one system of law (see Sulamerica Cia Nacional de Seguros SA v Enesa Engelharia SA [2013] 1 WLR 102 per Moore-Bick LJ at [11]).

The Court of Appeal stipulated that “this is a sensible starting point where there is no arbitration clause with a different seat; but it ceases to have any application where there is. In such cases, whatever the AA law, the parties have necessarily chosen their relationship to be governed in some respects by two systems of law, namely the curial law and the main contract law” (paragraph 95, emphasis added). Overall, as emphasised by Lord Neuberger in Sulamerica at [51], determining the proper law of the arbitration agreement was in each case a matter of contractual interpretation.

Applying these principles set above, the Court of Appeal found that the AA law in the Contract was governed by English law. Whilst the governing law of the Contract was Russian law, this was not by express choice. 

Further, In this case, there was no choice of law to govern the contract as a whole and the general rule would be applied in that situation so that the law of the seat of arbitration governs the arbitration agreement.

Therefore English law governed the arbitration agreement and the Court of Appeal›s basis for granting the anti-suit injunction remains sound.

The Supreme Court considered the possibility that, where the law governing the contract also governs the arbitration agreement, this would nullify the arbitration agreement fully or partially. The Court acknowledged the possibility that might justify a departure from the general rule in order to give effect to the principle that generally, contracts should be construed so as to avoid invalidity.

The Supreme Court also confirmed the Court of Appeal›s decision that it was appropriate for the court to consider whether to grant the anti-suit injunction, given that England was the seat of arbitration.

Interestingly, Lord Burrows and Lord Sales partially dissented from the decision of three judges in this case.

CONCLUSION

This is a remarkable judgment by the Supreme Court of England and is going to be an authority in the pro-arbitration regime. The court has clearly clarified the position and power of the English courts to exercise the curial law in order to grant anti-suit injunctions as a matter of relief. As pointed out by Lord Justice Popplewell in paragraph 109 that “the scope of the curial law is not limited to the exercise of purely procedural powers. It involves the curial court determining aspects of the substantive rights of the parties under their arbitration agreement by reference to the curial law.” Saying this, Lord Justice Popplewell has vested a responsibility on the draftsman to draft the AA more diligently. The law set out with regard to the governing law of the arbitration agreement will also be considered to be a remarkable authority and will be a helpful percent for complicated cases in future.

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Indian constitutional script in defining women’s presence in Parliament: A myth or a reality?

Women and men have almost equal population in India, but the former have a marginal presence in the Lok Sabha. When there is gender parity in Parliament, better policies can be formulated, which would ideally result in better governance. One major way to facilitate the increase in representation is through the recognition of the women already present and encouraging more women to get into politics.

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Lapsing onto the tables since 1996, patriarchy wrenched the pages of women’s reservation; thence, the ensconced ‘political equality’ remains unlearnt.

Amidst the debate of gender inequality or equality, the notion of women’s rights, the feminists’ theories actualize; considering, if the male to female ratio can ensure equality if the Constitution of India under Article 14 envisages gender equality and equity in the country, so why the electoral representation of women in the parliament in still under scrutiny. With the changing dynamics in the country, women are given more rights as compared to the older times, but the rights concerning the reservation in parliament in still pending to be marked in the checklist i.e. the enactment of the Women Reservation Bill or the Constitution (108th Amendment Bill) 2008 by the Parliament of India. The script of the Constitution in defining equality has not been truly implemented in terms of “political equality” why, because, women are still considered weak and unqualified and are still expected to settle down and look after the kids. The women namely, Mrs. Pratibha Patil, Mrs. Sushma Swaraj, Ms. Jayalalitha, Mrs. Nirmala Sitharaman in Indian politics had pasted a huge impact on the minds of Indian Citizens and have proved to be worthy in governing the nations constituency has been negated by the houses of the parliament because, when we go on to talk about Women in Indian Politics, we hear very few names of female politicians because women are not ascertained with neither the equal representation nor with the equity representation in the parliament; Should we consider “patriarchy” or “ruling by men” is a tendency in the country?. As women are taught to be under the tree of the men who take major decisions in almost every sphere of life and society and are encouraged to voice their opinions. The female representation in Indian politics has come quite far over the years but has a very long way to go. One major way to facilitate the increase in representation is through the recognition of the women already present and encouraging more women to get into politics and give them the right opportunity to hold positions of power and have a strong say in the decision-making process.

Fig. 1: Representation of Women in Rajya Sabha.

WOMEN’S REPRESENTATION IN INDIAN PARLIAMENT

The real decision-making process involves a maximum number of male parliamentarians even though the country experiences a minimal increase in every election in the representation of women candidates in politics. Although the majority of the political parties blossoms the papers by including women in the parliament by icing it with the term called “reservation to women”, but the actuality is hidden in regards to equal electoral representation to women in India. The dearth of women’s representation in the parliament has succinctly depleted the value of the nation’s glory which was also highlighted by India’s first woman President, Pratibha Patil, as she said, “There is simply no way our nation can progress if its women population is left behind.” But, this dearth is escaped through a fallacy called “lack of winning capacity of women”. The persuasion of this fallacy was been bereft in the 2019 general elections when 78 women politicians made their way into the Lok Sabha out of the 700 women participating candidates nearly counting to 14% of the total strength. Moreover, 25 women secured a seat in Rajya Sabha out of the total strength of 245, making up to 10% of the total. Although the representation of women kept on decreasing in Rajya Sabha and was noted to be highest in 2014 i.e. 12.7% (See, the table below).

Fig. 2: Representation of Women in 17th Lok Sabha, https://www.prsindia.org/parliamenttrack/vital-stats/profile-newly-elected-17th-lok-sabha

Effectuating the data stated, the inference of the bogus claims of the political parties have been still sustained, as, there are minimal numbers of female candidates in the parliament and the “winning capacity” is vaulted by the patriarchal domination despite the guaranteeing of equality rights by the Constitution of India.

ELECTORAL RIGHTS TO WOMEN IN INDIA

India’s acclaim of perpetrating the equal representation to women in the parliament is under a steel sky; the boundaries of the patriarchy are gripped. Albeit the 73rd amendment to our constitution provided for 33% of reservation to women and allocated the 46% share in the panchayats. But, the amendment is not ascertaining equality to women or women empowerment, rather a ‘jugaad’ of proxies for male members in their families.

The population of women and man are equal in India i.e. close to 50%, despite which the electoral representation of women is near to “diminishing” as the seat allocated to the states is based on the population in The Lok Sabha, howbeit, the representation of women is not even close to the percentage of the female population of the country. When there is complete representation in the Parliament, better policies can be formulated, which would ideally result in better governance. A study by The United Nations University World Institute for Development Economics Research’s suggested that the inclusion of women in the government resulted in the better economic growth of the nation. For a better representation of the women in the parliament, they need to get up and come to the forefront to contest elections and come to a position of power to bring about a change. But such an act would require awareness in the society regarding the importance of female representation and its effects on the overall efficiency in the governance in the country.

VERITY IN REPRESENTATION OF WOMEN IN PARLIAMENT OF INDIA

India experienced less number of women representation i.e. 10.9% in the parliament in the year 2012, accordingly to mitigate the minimal participation of women, the country empowered reservation quotas in 1994. The 73rd and 74th Constitutional Amendment Bill provided for reservation of 33% of seats in local governments, panchayats, and municipalities for women. Following this, in 1996 the Gowda’s government (United Front government) proposed the 81st Constitutional Amendment Bill which provided for one-third or 33% reservation of seats to women in the Lok Sabha and State Assemblies. However, the bill got lapsed and was tabled several times. Recently, in 2008 the 108th Constitutional Amendment Bill or Women Reservation Bill which also provided for 33% reservation to women in Lok Sabha and State Assemblies was tabled and is yet to become a law. The debate of women’s reservation is running since 1996 from the 81st Constitutional Amendment Bill till The Women’s Reservation Bill (108th amendment) in 2008 and yet it remained a ‘bill’ ready to form an ‘act’. The proposed bill has no reasons for its delay, but the hurdle of the social agenda of “democratization” in the country provides a controversy to the women’s reservation bill.

However, the bounds by the concepts of “democratization” was overturned in the 2019 Lok Sabha elections, when the “winning capacity of women” flourished as the winning ratio of women counted to 14% and whereas participating candidates were only 8%. Thence, the inference of winning capacity landed in the favor of women. Thus, the 2019 Lok Sabha Elections is justifiable in descrying reservations to the women in politics.

CONSTITUTIONAL RECOGNITION OF WOMEN IN INDIAN PARLIAMENT

The Constitution of India has guaranteed various equality/equity rights to women and also empowers a duty on every citizen under Article 51A to abolish the practices of “derogatory to the dignity of women”, further, provides for reservation of not less than one-third of the total number of seats in Panchayats and Municipalities to women under Article 243 D(3) and Article 243 T(3), also provides for a reservation to women which is not less than one-third of the total number of officers of chairperson in the Panchayat and Municipalities at each level.

The reality of women’s equal representation was outspoken in 1996 in form of the 81st Constitutional Amendment Bill which provided for one-third reservation of women in the Lok Sabha and State Assemblies but was sabotaged under the Indian Politics Tornado. Thus, empowering a barrier to the electoral representation of women thereby, allowing the feminist theories in actualizing their effect on the ideas of democracy and political equality in regards to women’s representation and not providing equality in the sphere of political efficacies. The women’s voice against equal representation in India was resulted positive as The High Court of Bombay decided in the favour of the reservation of seats for women in the election of Jalgaon Municipality which was provided under the Bombay Boroughs Act 1925. Still, the identification of women in politics remains depressed despite the provisions of gender equality in the Constitution.

Conclusion

The 33% or the one-third reservations of seats to women was been lapsing since 1996 and yet recently has been tabled in 2008 which also landed into a dearth of dirt. This gives rise to the concept of ‘inequalities on established equalities’ as the constitutional framework guarantees equality but the social inclination of the country sweeps the ‘political equality’ as, the implementation of women representation in Indian politics challenges the hidden “verity of democratization” and the bill of women representation in Indian politics succumbs itself under the myth of “verity of democratization”.

As the lapsing of the women’s reservation bill is actuated to the constitutional amendment which is controversial under the supporting and opposing pillars of democracy.

But, the bleak truth has never been catechized, even though the women representation is diminishing, yet, the interminable roles professed by the women politicians are beyond comparison to men’s political efficacious.

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SUSPICION, HOWEVER STRONG, CAN’T TAKE THE PLACE OF PROOF: SC

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It is really remarkable, refreshing, rejuvenating and reasonable to learn that the Supreme Court has just recently on February 12, 2021 in a latest, learned, landmark and laudable judgment titled State of Odisha vs. Banabihari Mohapatra in Special Leave Petition (Cri) No. 1156/2021 has reiterated that suspicion, however strong cannot take the place of proof. This was held so while upholding the acquittal in a murder case. All the Courts must always bear this in mind while dealing with criminal cases especially where the evidentiary value of proof matters most in deciding conviction or acquittal.

To start with, this commendable judgment authored by Justice Indira Banerjee for herself and Justice Hemant Gupta sets the ball rolling by first and foremost observing in para 1 that, “This Special Leave Petition filed by the State of Odisha is against a final judgment and order dated 2nd November, 2020 passed by the High Court of Orissa at Cuttack dismissing an application for leave to appeal being CRLLP No.14 of 2020 filed by the Petitioner State, against a judgment dated 14th January, 2020 passed by the Sessions Judge, Bhadrak in S.T. Case No.182/392 of 2014, acquitting the Respondents from charges under Sections 302/201 read with Section 34 of the Indian Penal Code (IPC).”

To be sure, it is then stated in para 2 that, “Learned Counsel appearing on behalf of the Petitioner State forcefully contended that the High Court committed gross error in dismissing the application for leave to appeal filed by the Petitioner State on the ground of delay of 41 days, even though, there were serious charges against the Accused Respondents, including charges of murder under Section 302 of the IPC.”

Truth be told, it is then pointed out in para 3 that, “It is true that the appeal has, by the impugned judgment and order dated 2nd November 2020, been dismissed on the ground of delay of only 41 days in filing the CRLLP.”

While stating the ostensible, the Bench then acknowledges in para 4 that, “In a criminal case involving the serious offence of murder, the Courts do not ordinarily dismiss an appeal against a judgment and order of the Trial Court, whether of conviction or of acquittal, on the sole ground of some delay. This is to prevent miscarriage of justice.”

Simply put, it is then conceded in para 5 that, “However, in this case the application of the Petitioner State, for leave to appeal against the judgment and order of acquittal of the Respondent Accused, has been rejected on the ground of delay, but after considering the merits of application for leave to appeal.”

Needless to say, the Bench then points out in para 6 that, “We have considered the contentions of the State of Odisha being the petitioner before us. As per an FIR lodged with the police by one Gitanjali Tadu, hereinafter referred to as the “Complainant”, her husband Bijay Kumar Tadu, hereinafter referred to as the “deceased”, had been working in the Home Guard, Chandabali and deputed at Chandabali Police Station.”

For the sake of information, the Bench then reveals in para 7 that, “According to the Complainant, the deceased used to move around with the first accused, Banabihari Mohapatra, who had an electric sales and repairing shop styled “Raja Electricals” at the Ferry Ghat area near the Chandabali bus stand.”

Be it noted, it is then made known in para 8 that, “In the FIR, it is alleged that the first accused came to the residence of the deceased at around 7.30 a.m. on 23rd June, 2014 and told the Complainant that the deceased had been lying motionless and still, not responding to calls. Later his younger son Luja alias Smruti Ranjan Mohapatra being the second Respondent also came and informed the complainant that the deceased was lying motionless.”

While continuing in a similar vein, the Bench then observes in para 9 that, “On hearing this, the Complainant along with her family members went to the Ferry Ghat near the Chandabali Bus Stand and found her husband lying dead inside a room which was locked, with a swollen belly and a deep burn injury on his right foot which was apparently caused by electric shock. The body of the deceased appeared black and blood was oozing out from the mouth and nostril of the deceased.”

It would be pertinent to mention that it is then disclosed in para 10 that, “In the FIR, the complainant has alleged that on 22nd June, 2016, the deceased had left the house to go to the house of a relative. He had been wearing a gold chain on his neck and two gold rings on his fingers, and had been carrying Rs.800 for purchase of a new pair of pants and shirt and Rs.5,000/- for purchase of articles for a marriage.”

It has to be borne in mind that para 11 then brings out that, “On making enquiries the complainant learnt that the deceased had not visited the house of the relative on that day. The complainant has alleged that the Accused No.1 Banabihari Mohapatra, his son Luja alias Smruti Ranjan Mohapatra, being the Accused No.2, and other accomplices committed murder of her husband by applying electric shock to him after administering some poisonous substances to him.”

What also has to be noted is then stated in para 12 that, “The Sessions Judge Bhadrak framed charges against the Accused Respondents Banabihari Mohapatra and Luja @ Smruti Ranjan Mohapatra alleging that, together they had intentionally caused the death of the deceased, thereby committing murder and had caused disappearance of evidence and thus been guilty of offences under Sections 302/201 read with Section 34 of the IPC.”

No doubt, the Bench then rightly mentions in para 13 that, “We have carefully gone through the judgment of the Sessions Judge, Bhadrak, holding that the prosecution had failed to prove the charges against the Accused Respondents or either of them under Section 302, or Section 201 read with Section 34 of the IPC, and acquitting them under Section 235(1) of the Cr.P.C.”

To put things in perspective, the Bench then elaborates in para 14 that, “The prosecution appears to have examined 9 witnesses. There are no eye witnesses to the incident. The deceased had apparently died in a room held by the Accused Respondent No.1. The Accused Respondents did not abscond. The Accused Respondents themselves informed the complainant that the deceased was lying still and motionless, not responding to calls.”

It is worth noting that it is then enunciated in para 15 that, “The post mortem Report of the deceased reveals that the cause of death was electric shock, suffered by the deceased within 24 hours from the time of examination. On post mortem examination, the Doctor found food particles including meat in the stomach of the deceased, and also detected smell of alcohol. The post mortem doctor opined that the deceased was intoxicated with alcohol and the death was either accidental, or homicidal, but not suicidal. There is no conclusive evidence that the death was homicidal.”

No less crucial is what is then mentioned in para 16 that, “The complaint lodged by the complainant is apparently based on suspicion. Since the Accused Respondents had informed the complainant that the deceased was lying still and motionless, not responding to calls and the body of the deceased was found at the premises of the Accused Respondent No.1, the complainant has assumed that the Accused Respondents killed the deceased.”

More damningly, the Bench then observes in para 17 that, “In evidence, the complainant said that the Accused Respondent No.1, Banabihari, had taken a loan of Rs.20,000/- from the deceased which he had not repaid even though the deceased had asked him to repay the amount. Significantly, there is no whisper in the FIR, of any loan taken by the Accused Respondent No.1 from the deceased. The reference to the alleged loan appears to be an afterthought, in an attempt to insinuate a motive for killing the deceased.”

It cannot be denied that it is then conceded in para 18 that, “The mere fact that the deceased was lying dead at a room held by the the Accused Respondent No.1 and that the Accused Respondents had informed the complainant that the deceased had been lying motionless and still and not responding to shouts and calls, does not establish that the Accused Respondents murdered the deceased. At the cost of repetition it is reiterated that the post mortem report suggests that the death could have been accidental.”

Significantly, the Bench then makes it clear in para 19 that, “We have perused the evidence of the nine Prosecution Witnesses, namely, the first Prosecution Witness Dhanjaya Tadu, younger brother of the deceased, the second Prosecution Witness Gitanjali Tadu, wife of the deceased, the third Prosecution Witness, Ajay Sahoo, a Shop Keeper at the locality where dead body of the deceased was found, the fourth Prosecution Witness, Smt. Bijayalaxmi Tadu, sister of the deceased, the fifth Prosecution Witness, Bailochan Bej, a Barber by profession who knew the complainant and the deceased as also the accused persons who resided in the Chandabali Police Station area, the sixth Prosecution Witness, Manmohan Sutar, an auto driver, the seventh Prosecution Witness, Aswini Kumar Nayak, a cultivator residing at Nayahat in the Chandabali Police Station area of Bhadrak, the 8th Prosecution Witness, Dr. Bhisma Parida, being the Doctor who conducted the autopsy/ post mortem examination of the deceased and the ninth Prosecution Witness Smt. Kumari Behera, Sub Inspector of Police, who was the Investigating Officer.”

We need to pay attention here that para 20 then states that, “Of the nine Prosecution Witnesses, three witnesses namely, the third Prosecution Witness, Ajay Sahoo, the fifth Prosecution Witness, Bailochan Bej and the seventh Prosecution Witness, Durga Charan Nayak were declared hostile by the Prosecution.”

It cannot be glossed over that it is then stated in para 21 that, “The third Prosecution Witness said that he had only seen the police shifting the dead body of the deceased and knew nothing more about the case. Nothing has emerged from his cross-examination by the Public Prosecutor. In his cross-examination by the defence, he said there was no electric connection in the house from which the body of the deceased was brought out. He even said that the Accused Respondents did not own any shop dealing with electric appliances. No credence can be given to this witness.”

It also cannot be glossed over that para 22 then reveals that, “The fifth Prosecution Witness, Bailochan Bej, denied knowledge of the case. He said that the police had not examined him, nor recorded any statement made by him. In cross-examination by the prosecution, he only said that he had a saloon at Chandabali Police Station, Bhadrak. He categorically denied having made the statements attributed to him by the police.”

What deserves mentioning here is that it is then stated in para 23 that, “The seventh Prosecution Witness, Durga Charan Nayak only said that he had seen the body of the deceased in the rented place near the Chandabali bus stand with bleeding injury on his right leg and blood oozing from his mouth and nostrils. He said he did not know how the deceased suffered the injury or died. Nothing significant has emerged from his cross-examination by the Public Prosecutor.”

Same is true of para 24 which then states that, “The sixth Prosecution Witness, Manmohan Sutar deposed that he knew the informant, the deceased as also the Accused Respondents. In a nutshell, he only confirmed that the dead body was in the shop of the Accused Respondents in Home Guard uniform. Inquest of the body was conducted in his presence. He identified his signature in the Inquest Report. He also said he had noticed a bleeding injury in the right foot of the deceased and blood oozing from the mouth and nostrils.”

It is extremely relevant to note that para 25 then brings out that, “All the three witnesses related to the deceased, that is the second Prosecution Witness, being the wife of the deceased, the first Prosecution Witness, being the younger brother of the deceased and the fourth Prosecution Witness, being the sister of the deceased have more or less reiterated what has been stated in the FIR with embellishments. There are, however, apparent inconsistencies, inaccuracies and inherent improbabilities in the statements of these witnesses.”

Of course, it is then elucidated in para 26 that, “These three witnesses deposed that they suspected that the accused Respondents had killed the deceased as the deceased was asking the Accused Respondents to repay Rs.20,000/- which the deceased had advanced to the Accused Respondents by way of loan. However, as observed above, there is no whisper of the alleged loan in the FIR lodged by the complainant wife being the second Prosecution Witness.”

Adding more to it, the Bench then puts forth in para 27 that, “That apart, the first and fourth Prosecution Witnesses have admitted in cross-examination that they did not have first hand knowledge of the loan alleged to be advanced by the deceased to the Accused Respondent No.1. The first Prosecution Witness said that the complainant (PW2) had told him that the Accused Respondent No.1 had not repaid loan of Rs.20,000/- to the deceased. The fourth Respondent said she had heard about the loan from her deceased brother. Though she said that the loan was given to the Accused Respondent No.1 at the time of his daughter’s marriage she could not say how long ago the loan was given. She could not even tell the approximate date or year of marriage of the Accused Respondent No.1’s daughter.”

Furthermore, it is then also observed in para 28 that, “From the evidence of the first and the second Prosecution Witnesses it transpires that the deceased had left his house at around 10.00 a.m. on 22nd June 2014, to go to his Aunt’s house in connection with his Aunt’s daughter’s marriage. He was wearing a gold chain and two gold rings and carried Rs.800/- with him for buying a pair of trousers and shirt and Rs.5000/- for articles for the marriage. Enquiries, however, revealed that he had not gone to his Aunt’s house. It is, however, difficult to understand why the deceased should have been wearing his home guard uniform if he were going to visit his Aunt in connection with the marriage of his Aunt’s daughter. There is evidence to show that the deceased was found in his home guard uniform. The relevance of the plan of the deceased to go to his Aunt’s house or his plan to buy clothes etc. is also not clear. This is in no way linked to the incident of death of the deceased. Prosecution has failed to show a link between the proposed visit of the deceased to his Aunt’s house with the guilt, if any, of the Accused Respondents.”

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Quite forthrightly, the Bench then holds in para 29 that, “The evidence of the first Prosecution Witness Dhanjaya Tadu, brother of the deceased, that he had found the motor cycle of the deceased in front of the shop of the accused persons on the evening of the 22nd June 2014, is difficult to accept. He said he had asked the second accused about whereabouts of his brother to which the second accused had expressed ignorance, but on the next day, the second Accused Respondent and his father informed them that his brother was lying senseless. It seems rather unnatural that this witness, who was the brother of the deceased, should have chosen not to make any inquiry either in the police station or in the neighbourhood, even after seeing the motor cycle of the deceased in front of the shop, and after being told his brother was not in the shop. No attempt was made to look for the deceased even though he did not return home all night.”

What’s more, it is then stated in para 30 that, “The eighth Prosecution Witness, Dr. Bhisma Parida, who had at the time of death of the deceased been posted as Medical Officer at CHC Chandabali and had conducted the autopsy/post mortem examination of the deceased at around 1.00 p.m. on 24th June 2014, deposed that the deceased died due to electrical injury, suffered within 24 hours of the autopsy. The stomach of the deceased was full of food particles including meat and there was smell of alcohol. The deceased had been intoxicated with alcohol. The Medical Officer found electrical wounds in the leg which were sufficient to cause death. He opined that the injuries sustained by the deceased might have been due to contact with live electric wire. He opined that the contact was prolonged. The injuries were ante mortem. This witness was of the opinion that the death may have been accidental or homicidal, but not suicidal.”

Crucially, it is then pointed out in para 31 that, “Nothing significant has emerged from the oral evidence of the ninth Prosecution Witness, Smt. Kumari Behera, the Investigating Officer, to establish the guilt of the Accused Respondents. She only stated that the fifth Prosecution Witness had in course of examination stated before her that the first Accused Respondent and the deceased used one of the quarters where they regularly took tiffin and they were both present there on the date of the incident in Court. The fifth Prosecution Witness, however, denied having made any such statement to the Police and remained unshaken in cross-examination by the Public Prosecutor. He only admitted that he had a saloon in the area, but denied knowing the deceased, the Accused Respondents or the informant. The fifth Prosecution Witness said that the Police had neither examined him, nor recorded his statement.”

It is worth mentioning that para 32 then states that, “In her deposition, the Investigating Officer also said that some local persons had stated that the first Accused Respondent, Banabhihari had, out of animosity, killed the deceased by applying electric current. The oral evidence of the Investigating Officer in this regard is totally vague and devoid of particulars. The Investigating Officer (PW-9) had neither named the local persons nor enquired into the source of their information if any. The local persons have not been examined as witnesses.”

No wonder, it is then conceded in para 33 that, “The Prosecution miserably failed to establish the guilt of the Accused Respondents. The Trial Court rightly acquitted the Accused Respondents. There is no infirmity in the judgment of the Trial Court, that calls for interference.”

While citing the relevant case law, it is then observed in para 34 that, “As held by this Court in Sadhu Saran Singh v. State of U.P. reported in 2016 (4) SCC 357, an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal, where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity. In this case, it cannot be said that the reasons given by the High Court to reverse the conviction of the accused are flimsy, untenable or bordering on perverse appreciation of evidence.”

More crucially, the Bench then states in para 35 that, “Before a case against an accused can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of guilt of the accused. There has to be a chain of evidence so complete, as not to leave any reasonable doubt for any conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the Accused.”

While citing another relevant case law, it is then encapsulated in para 36 that, “In Shanti Devi v. State of Rajasthan reported in (2012) 12 SCC 158, this Court held that the principles for conviction of the accused based on circumstantial evidence are:

“10.1. The circumstances from which an inference of guilt is sought to be proved must be cogently or firmly established.

10.2. The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused.

10.3. The circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else.

10.4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.””

No doubt, the Bench then hastens to add in para 37 that, “Keeping the above test in mind, we have no iota of doubt that the Trial Court rightly acquitted the Accused Respondents. There is a strong possibility that the accused, who was as per the opinion of the doctor who performed the autopsy, intoxicated with alcohol, might have accidentally touched a live electrical wire, may be while he was asleep. The impugned judgment of the High Court dismissing the appeal on the ground of delay does not call for interference under Article 136 of the Constitution of India.”

Most crucially, the Bench then makes it clear in no uncertain terms in para 38 that, “It is well settled by a plethora of judicial pronouncement of this Court that suspicion, however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt. This proposition has been reiterated in Sujit Biswas v. State of Assam reported in AIR 2013 SC 3817.”

No less crucial is what is then stated in para 39 that, “In Kali Ram v. State of Himachal Pradesh reported in AIR 1973 SC 2773, this Court observed:-

“Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought is to be established by circumstantial evidence.”

Finally, it is then held in the last para 40 that, “For the reasons discussed above, we find no ground to interfere with the impugned judgment and order of the High Court under Article 136 of the Constitution of India. Consequently, the Special Leave Petition is dismissed. Pending application stands disposed of.”

To conclude, the long and short of this noteworthy judgment is that suspicion, however strong, cannot take the place of proof. This is the basic cardinal principle of criminal jurisprudence also. It has to be strictly implemented by all the courts in India. Para 38 is the most crucial para of this commendable judgment which has already been discussed above and which again repeats what is the bottom-line of this leading case that, “Suspicion, howsoever strong, cannot take the place of proof.” All courts must strictly abide by it! There should be certainly no deviation from this fundamental principle of law as followed in India and many other countries also! No denying or disputing it!

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THE SAGA OF JUDGES’ TRANSFERS AND REFORMS

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The transfer of judges from their parent High Courts is often in news and sometimes it is seen as some sort of punitive element attached to it, if it is not done in line for the elevation to a Chief Justice of the transferred High Court or if a Chief justice of a High Court having larger strength of Judges transferred to a far-flung high court having lesser strength, then judge resigns or, bar associations protest vigorously against such transfers.

The transfer of judges is done as per Article 222 of the Constitution of India.

Article 222 of the Constitution of India reads as follows:

“(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.

(2)…….”

That interestingly this provision of transfer of judges was not there in the Government of India Act, 1935 or even in the early stage of the Constitution Draft prepared by the Drafting Committee of the Constituent Assembly, Article 222 was proposed by the Drafting committee only at the final revision stage in November 1949.

The Chairman of the Drafting Committee, Dr. B.R Ambedkar in his explanation to the Constituent Assembly about the various reasons why it is necessary to introduce this provision, said:

“It might be necessary that one judge may be transferred from one High Court to another to strengthen the High Court elsewhere by importing better talents which may not be locally available. Secondly, it might be desirable to import a new Chief Justice because it might be desirable to have a man unaffected by local politics or local jealousies. We thought, therefore, that the power to transfer should be placed in the hands of the Central Government. “

And further Dr. Ambedkar was fully conscious of the fact that this provision could be abused and sought to provide a safeguard against its abuse:

“We also took into account the fact that this power of transfer of judges from one High Court to another may be abused. A provincial Government might like to transfer a particular judge from its High Court because that Judge had become very inconvenient to the provincial government by the particular attitude that he had taken with regard to certain judicial matters, or that he had made a nuisance of himself by giving decisions which the Provincial Government did not like. We, have taken care that in effecting these transfers no such considerations ought to prevail. Transfers ought to take place only on the ground of convenience of the general administration. Consequently, we have introduced the provision that such transfers shall take place in consultation with the Chief Justice of India who can be trusted to advise the Government in a manner which is not affected by local or personal prejudices.” (Constituent Assembly Debates, Vol. XI, p580.)

ANALYSING THE JUDGES’ TRANSFER SYSTEM

The transfer of Judges in India is not uncommon also at times the transfers do cast aspersions on the independence of judiciary and judge’s probity, and this present system of transfer of judges is often criticized for opaqueness in doing the transfers, which has often lead to criticism from the Bench and as well as from the Bar, In the past, many judges ( to name a few recent one’s Chief Justice Tahilramani of Madras High Court on transfer to Meghalaya High Court & Justice Dharmadhikari of Bombay High Court), has resigned after their transfer orders to the different High Court for myriad reasons.

So, In the present system transfers of judges elevated from the Bar in various High Courts usually don’t happen that frequently or happens generally of senior judges to accommodate the vacancy at Chief Justice level at various High Courts but the opaqueness involved in the transfers has given room to all sort of stories in the court corridor gossips and grapevine communication.

But the meat of the matter here is that these transfers happening at the seniority level for Chief Justice of any High Court or transferring a judge to another High Court abruptly due to some handling of politically sensitive cases by the judge, in a certain manner and fashion which gives an impression that this may be the reason of his transfer and paints it with the element of punitive touch involved in it, as generally perceived by the legal fraternity.

WAY FORWARD

To bring clarity and to end this element of opaqueness in judicial transfers and further take the judicial probity and institutional image to a next pedestal, the fundamental change in the present practice of judicial transfers needs to be adopted, wherein the judges to be transferred right after their elevation from the Bar to the Bench from their Parent High Courts to some other as it will put rest to all the controversies and further bring the judicial probity to a higher level as in present case we see as normally a judge being a former member of the bar having spent almost near to two decades on that side of the table develops a social circle of fellow members and others and at times he though would be impartial in delivering justice but it may give an impression to some of the prejudice or favor, though we see judges recuse themselves from matters were they have their immediate family members involved or former clients but yet that is not possible all the times but to bring the judicial impartiality and preventing the stream of justice from getting polluted, and further living up to the dictum, that justice should not only be done but it must also be seen to be done.

In the Sankal Chand Himatlal Sheth case, 1977, where the Supreme Court said sometimes the transfer of a judge becomes a compulsion because of close nexus he develops with local interests and says it becomes necessary to withdraw a Judge from a circle of favorites and non-favorites and transfers in such cases are pre-eminently in the public interest.

In the past the Bar Council of India (B.C.I) a statutory body that regulates the legal practice in India has proposed to have in place a system wherein judges are transferred from their home state within one month of their elevation to the bench and said that no judge should be allowed to remain a judge in his home state, in the interest of fair-play and justice, which they expected to bring more transparency in the appointment and transfer of judges in the higher judiciary under the collegium system.

If this reform is implemented it will bring transparency and impartiality to the system as immediate relatives of judges and their kith and kin, sons and daughters practicing in the same court, we often see them getting engaged on the best of panels of the government, everybody knows who they are and they try to appease them, which further leads to the impression of prejudices in the dispensation of justice.

To end this perceived arbitrariness and opaqueness in the transfer system a better uniform transfer policy of transfer from their home state within one month of their elevation to the bench in the beginning of the career will be in direction of bringing judicial impartiality in the best interest of all the stakeholders.

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