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Fugitive Economic Offenders Act, 2018 vis-à-vis extradition: A viewpoint

Analysing the Fugitive Economic Offenders Act, 2018 (FEO Act) with regards to extradition.

Rohan Garg

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Before proceedings further, let us consider two foreign judgments first:

1. French Court

Case title: De Zorzi v. Attorney General Appeal Court of Paris, France

 Citation: [2019] EWHC 2062 (Admin)

Facts: Ms. Zorzi was facing a trial in the district court of France. Pending decision, she was released on 15 July 2000 under ‘judicial supervision’. She was told that she was free to leave France but would have to return the following year. She was required to respond to summonses issued by the French court and to inform the court of any change of address. She was living in the Netherlands. The district French court were able to write to her on 30 October 2000 at her Dutch address, therefore, she was not, during that period, unlawfully at large nor was she a fugitive. She was required to attend the court in France on 28 June 2001 and she did so. She was ultimately convicted but was informed of it when she had already returned to the Netherlands after appearance on 28 June 2001. After her conviction, the district judge of the French court declared her as fugitive for four reasons: First, she acquired this status because she was informed in writing of the conviction and sentence not long after they were decided although the intimation was served to her in the Netherlands. Second, she appealed conviction and sentence through her lawyers. Third, she chose not to surrender herself to the French prison authorities when required to do so. Fourth, she was aware that her return was sought when she was subject to the extradition proceedings in the Netherlands. This declaration of status as fugitive was overturned by the appeal court. The appeal court held that firstly there was no clear evidence that she fled to Holland to avoid being told the outcome of the trial; instead she was simply returning home. The appeal court opined that mere receipt of a document from a foreign court by a person in the country of their residence informing them of their conviction in that foreign state and requiring their return does not make them a fugitive. It cannot be said that that person knowingly placed herself beyond the reach of a legal process when they were already beyond its reach. Secondly, her appealing a sentence does not amount to her knowingly placing herself beyond the reach of a legal process; on the contrary she is engaging in the legal process, albeit at a distance and by means of her lawyers’ representations. Thirdly, to surrender herself to the French prison authorities would have amounted to abandoning her resistance to extradition, and resisting extradition does not render an individual a fugitive. In any event, declining to surrender herself to the requesting state does not constitute knowingly placing herself beyond the reach of a legal process. It amounts instead to declining to place herself within the reach of that process. She was not obliged to place herself within the reach of a legal process instituted in another country and to leave and give up her home and lawful residence. Fourthly, the fact that she was aware that her return was sought when she was subject to the extradition proceedings in the Netherlands is of no consequence.

UK: The High Court of Justice

Case title: Marianne PillarNeumann & Public Prosecutor’s Office

Citation: [2017] EWHC 3371 (Admin)

Facts: District Judge found appellant fugitive on the ground that in 2004 the appellant became aware that a domestic warrant for her arrest had been issued in Austria and that by failing to leave her home in the UK and to go to Austria, so that she could be arrested pursuant to that warrant, she was evading arrest and was therefore a fugitive. The High Court rejected this finding and opined that even if she was aware of the domestic warrant, lawfully remaining in her established country of residence does not mean she was evading arrest or was a fugitive. The court held that she was not fleeing the country or concealing her whereabouts. She was not taking any positive steps to evade or avoid arrest. She was simply carrying on living in her country of residence, as she was lawfully entitled to do. The High Court added that she was not knowingly placing herself beyond the reach of a legal process. There is no case in which it has been found or even suggested that failing to give up home and lawful residence in order to place within the legal process instituted in another country makes someone a fugitive. The High Court, in fact noted that “fugitive” is not a statutory term but a concept developed in the case law. To declare a person’s status as a fugitive, it must be established to the criminal standard. In this case, the district judge was wrong to find to the criminal standard that the appellant was a fugitive.

In this backdrop, let’s consider a situation in India. An individual, a citizen of India, acquires citizenship of another country after clearance by Indian authorities (thereby automatically ceases to be an Indian citizen) and permanently shifts to the other country and starts living there lawfully. Subsequently, Fugitive Economic Offender Act is enacted and proceedings commenced against that individual who is a lawful citizen of another country. A notice is served upon him asking him to surrender to face prosecution or else be declared a fugitive. A fundamental question arises. Does that individual, a foreign national, not have right to decline placing himself within the reach of process issued by Indian court under the FEO Act and instead exercise his rights to resist extradition? The answer, in my opinion, is yes. He has right to decline surrender and right to resist extradition during which time he cannot be declared a fugitive. But, the law as it stands in India, FEO Act declares an individual fugitive even if that individual lawfully acquired citizenship of another country much before the enactment and commencement of proceedings under FEO Act. Things would have been different had there been a clear evidence to criminal standard that the individual possessed knowledge of the FEO proceedings while he was in India and he knowingly fled to another country to intentionally place himself beyond the reach of process. But to declare an individual fugitive who has already left India and its citizenship is not only a retrospective action but also amounts to making him abandon resistance to extradition, which is his basic legal right.

The ‘statement of objects and reasons’ of the Fugitive Economic Offenders Act (herein after referred to as FEO Act) is as under: –

 “There have been several instances of economic offenders fleeing the jurisdiction of Indian courts anticipating the commencement of criminal proceedings or sometimes during the pendency of such proceedings. The absence of such offenders from Indian courts has several deleterious consequences, such as, it obstructs investigation in criminal cases, it wastes precious time of courts and it undermines the rule of law in India. Further, most of such cases of economic offences involve non-repayment of bank loans thereby worsening the financial health of the banking sector in India. The existing civil and criminal provisions in law are inadequate to deal with the severity of the problem. In order to address the said problem and lay down measures to deter economic offenders from evading the process of Indian law by remaining outside the jurisdiction of Indian courts, it is proposed to enact a legislation, namely, the Fugitive Economic Offenders Bill, 2018 to ensure that fugitive economic offenders return to India to face the action in accordance with law.”

The words, “…to ensure that fugitive economic offenders return to India to face the action in accordance with law.” are of utmost importance.

Similarly, section 2(f) of the FEO Act states “fugitive economic offender means any individual against whom a warrant for arrest in relation to a Scheduled Offence has been issued by any Court in India, who— (i) has left India so as to avoid criminal prosecution; or (ii) being abroad, refuses to return to India to face criminal prosecution”

Likewise, when a notice is issued under section 10 (3) of the FEO Act, it requires the individual to appear in person at a specified place and time and failure to appear shall result in declaration of the individual as fugitive economic offender. After issuance of notice, section 11 of the FEO Act states that if the individual ‘appears in person’, the special court may terminate the fugitive proceedings.

 Words, “…to ensure that fugitive economic offenders return to India to face the action in accordance with law…” used in the statement of objects and reasons of the FEO Act together with the words “..being abroad, refuses to return to India to face criminal prosecution” appearing in section 2(f) and words “appear in person” used in section 10 and 11, leads to an inevitable conclusion that the intent and the objective of the FEO Act is to bring back the accused to face prosecution or else confiscate his properties.

Now, the question that arises is whether an individual, who is lawfully residing in his country of residence, even if he is aware of the domestic warrant issued in the requesting state, be declared fugitive, if the individual declines to place himself within the reach of that process?

 The answer, in my personal opinion, as well as in terms of decisions passed by the foreign courts is no.

Let us now analyse FEO Act from an international perspective.

 New Zealand

United Kingdom enacted Fugitive Offenders Act on 27th August 1881. In 1881, New Zealand had been a “self-governing colony” of the United Kingdom with the Parliament of the United Kingdom retaining the power to legislate for the colony. Thus the 1881 Fugitive Offenders Act had applied to New Zealand. In 1947 the New Zealand Parliament enacted the Statute of Westminister Adoption Act by virtue of which it acquired full power “to make laws having extra-territorial operation. Subsequent repeals of relevant sections of the New Zealand Constitution Act 1952 by the New Zealand Constitution Amendment Act 1970 completed the process in the evolution of New Zealand as an independent State. Consequently, in 1976, when the United Kingdom repealed and replaced the 1881 Act with a new Act, its application was not extended to New Zealand. The Parliament of the United Kingdom replaced 1881 Act with an up-to-date one but in New Zealand 1881 Act still subsisted like an unburied corpse. It was then that the Government noted that it should decide whether to ask Parliament to replace 1881 Act with a functional statute with respect to the United Kingdom “or” whether, if United Kingdom be regarded as a ‘foreign country’, to invoke the provisions of the New Zealand’s Extradition Act 1965 by concluding an appropriate treaty. Ultimately, the government of New Zealand enacted the Fugitive Offenders Amendment Act 1976, which amended the 1881 Act.

 The aforesaid underlined portion is of utmost importance. After New Zealand became independent State, the Government had to decide whether to regard United Kingdom as a ‘foreign country’ to invoke New Zealand’s Extradition Act 1965 or to have a new functional statute replacing 1881 Fugitive Act. Therefore, the government could choose one and not both.

 But India, on the contrary, has enacted two statutes for the same purpose.

Further, under the fugitive act 1976 of New Zealand there are various safeguards available to the accused in sec. 29A –

 “29A. (1) Notwithstanding anything in this Act, a fugitive or a person accused of an offence shall not be returned under this Act from New Zealand to another Commonwealth country if the offence in respect of which his return is sought is an offence of a political character.”

“(2) Notwithstanding anything in this Act, fugitive or a person accused of an offence shall not be returned under this Act from New Zealand to another Commonwealth country if – (a) In any case to which Part I of this Act applies, it appears to the Minister of Justice, or to any court before which the fugitive is brought, or to any court or Judge on an application for a writ of habeas corpus; or (b) In any case to which Part II of this Act applies, it appears to any court before which the accused person is brought, or to any court or Judge on an application for a writ of habeas corpus – that – (c) The return of fugitive or accused person, although purporting to have been sought in respect of an offence for which, but for this subsection, he would be liable to be returned, was sought for the purpose of – (i) Prosecuting or punishing him for an offence of a political character; or (ii) Prosecuting or punishing him on account of his race, religion, nationality, or political opinions; or (d) If the fugitive of the accused person is returned, he may be prejudiced at his trial, or punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality, or political opinions.”

 But, the FEO Act of 2018 has no safeguards.

Canada

 In a case, Germany sought extradition of a Canadian citizen residing in Canada.

 Sec. 6(1) of the Canadian Charter of Rights and Freedoms reads – “6(1) Every citizen of Canada has the right to enter, remain in and leave Canada.”

Section 52(1) of the Canadian Constitution reads “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”

Section 1 of the Canadian Charter reads “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

 A joint reading of all these provisions, the Chief Justice of the High Court while accepting that extradition is ‘prima facie’ an infringement on the s. 6 mobility rights of a citizen concluded that the Requesting State had established that extradition is a procedure prescribed by law and is a reasonable limitation on one’s guaranteed rights and freedoms which can be demonstrably justified in our society.

In this case, when the Deputy Minister of Justice was questioned about exile and deportation with relation to s.6, the Minister replied as follows: –

“Perhaps I might mention that we do not see Clause 6 as being an absolute right. I will give you an example of a situation where a citizen would, in effect lose his right to remain in the country, that would be by virtue of an order under the Extradition Act; if someone committed an offence in another country and he is sought in this country, he could be surrendered to the other country. The same thing would apply in the case of countries belonging to the Commonwealth to which the Extradition Act does not apply, but the Fugitive Offenders Act does apply. In that situation a Canadian would not have the right to remain in the country by virtue of the offences he might have committed in another country and for which he is sought so that justice could be applied. Under the Extradition Act there is a process to which the person is entitled before that extradition order can in fact be finalised.” The above paragraph clearly shows that a person’s freedom of movement can be restricted only by extradition Act and if extradition Act is not applicable to a certain country (for example commonwealth country as mentioned above) then Fugitive Offenders Act shall apply.

But India, on the contrary, applies both Extradition as well as FEO Act on an individual at the same time.

United Kingdom

Extradition Acts 1870 was in force until it was repealed by Fugitive Offenders Act 1881, which was repealed by Fugitive Offenders Act 1967, which was then repealed by Extradition Act 1989, which was in turn repealed by Extradition Act 2003. Under all these Acts including UK’s Fugitive Offenders Act, an accused/fugitive had in-built safeguards.

 Safeguards provided under the then UK’s Fugitive Offenders Act 1967:

 “Sec. 4(1) – A person shall not be returned under this Act to a designated Commonwealth country or committed to or kept in custody for the purpose of such return, if it appears to the Secretary of State, to the court of committal or to the High Court … on an application for habeas corpus or for review of the order of committal –

 (a) that the offence of which that person is accused or was convicted is an offence of a political character;

(b) that the request for his return (though purporting to be made on account of a relevant offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, or political opinions; or

(c) that he might, if returned, by prejudiced at his trial or punished, detailed or restricted in his personal liberty by reason of his race, religion, nationality, or political opinions.”

 In UK, Fugitive Offenders Acts of 1881 & 1967 were used for extradition. Under these Acts extradition was prohibited for political offences. Under the UK’s Extradition Act 1870, the Fugitive Offenders Act 1881, 1967, and the Extradition Act 1989, the Secretary of State possessed a general discretion whether or not to surrender the fugitive to the requesting State.

 The Fugitive Offenders Acts enacted by countries from time to time had inbuilt safeguards such as dual criminality, requirement that a prima facie case be made out, the principle of speciality, prohibition on extradition on grounds of race, religion, nationality, or political opinions, prohibition if accused is likely to face prejudice, unjust detention etc but there is no such safeguard available to the accused under the FEO Act of India.

Consider a situation where there is an extradition treaty/arrangement between India and a foreign State. The question of law that needs attention is whether inspite of having an extradition arrangement/treaty containing safeguards, if the government of India sought return of the accused under FEO Act failing which confiscate his properties, will it not amount to denial of justice to the accused by forcing him to abandon his resistance to extradition, who otherwise could have legally resisted extradition. If the accused chooses to resist extradition, his properties are confiscated under the FEO Act and if the accused surrenders under the FEO Act in order to save his properties, he is automatically deprived and abandoned of the legitimate resistance to extradition. Is this not equivalent to forcing an accused to give up one of his two constitutional rights i.e right to equality before law or constitutional right to property? Is this not arbitrary and unreasonable?

Keeping in mind how the Fugitive Offenders Act developed in the western countries and how the foreign courts dealt with the term ‘fugitive’, it is to be seen how fairly, justly, and reasonably the FEO Act is amended and applied especially to the disputes relating to Nirav Modi, Vijay Mallya, Mehul Choksi etc. In my personal opinion, the law as it stands now, is unconstitutional for the reasons stated above.

 Adv. Rohan Garg is Partner, Fox Mondal & Co. He is a LL.M (Utrecht University) D-1926/2005

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Legally Speaking

Sushant Singh Rajput case: Much ado about nothing

Even assuming that big film camps did not sign the star, or the lady friend used the actor’s credit cards and was his mental anchor and later allegedly abandoned him, none of them could be booked for abetment of suicide which carries a jail term of 10 years.

D.N. GOBURDHUN

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Shakespeare’s words keep echoing “much ado about nothing”! A simple, well-planned suicide, by a Bollywood star, Sushant Singh Rajput, which is an open and shut case, has been magnified into a big criminal conspiracy on pure imagination. The investigation, information and the findings of the factual matrix unequivocally show, that the hanging by the star was of his volition!

A young single man, is found dead in his room; doors are closed from inside and no forced entry. A locksmith is brought to open, the forensic science report shows, that it is not a ‘murder’, as this basic distinction whether it is “suicide or murder” is well known to the experts and lawyers.

Admittedly, there was no suicide note which could have given a clue. That note too would have pointed out that the person, has instigated me to kill myself! What most of us, as commoners are not aware of the Law on “abetment to suicide.” This herd like investigation is a gross abuse of public money, and valuable time of the police, who could do more weighty investigation in serious crimes.

But politician make hue and cry! So the policeman has to toe the line!

 It is a simple case of suicide and not covered under abetment. The irony is, if the star would have survived suicide, he himself would have been booked for “attempt to suicide”.

The police investigation reveals that many film producers promised him work and ultimately did not sign him up. Hours and hour of investigation of the films makers, show that he was selected but dropped later.

Elizebeth’s Director, stated that he was to do a big film for a big banner, which did not happen and he felt, he was let down.

Now, the father has joined the bandwagon and a FIR has been registered in Patna, [alleged offence is in the city of Mumbai] against a social friend of the star, for squandering his wealth and for emotional abuse.

A tax-payer’s money is being spent on the travel/ lodging of Bihar Police. For what? While Mumbai Police is already investigating the same very matter. Perhaps this is an election call!

The glaring facts show even assuming the big film camps did not sign the star, or the lady friend used the star’s credit cards and was his mental anchor and later allegedly abandoned him, none of them could be booked for abetment of suicide which carries a jail term of 10 years?

 The answer is an emphatic NO! Their Lordships of the Supreme Court held, in year 2010, in Madan Mohan’s case, that a person can be made an accused only, and tried only under Section 306 Indian Penal Code, when there is material evidence, with the prosecution to charge sheet him, when: Such a person had persisted and goaded the star continuously to “kill himself”. That is to say, there should be clear and unmistable intention of a continuous threat, pressurizing and nagging by the person to the deceased, that he should hang himself/ kill yourself/ and the deceased fully complied with it.

The law on abetment does not allow a person to be even charge sheeted, leave alone convicted, even if the person who is in command, screams at his subordinate for terrible deliverance of his duties and utters “why do you, and not go, kill yourself” for this gross negligent work, and the subordinate staff, does commit suicide? Master herein cannot be charged. A ‘Saas’ telling her “bahu mar ja ke,” a too familiar heard expression in North India, too cannot be prosecuted.

 So, in this Bollywood hungama maze, why this princely treatment? No one had said a word, as the law, contemplates to utter, to the star which would have compelled him, to take his own life. There was no abetment in law, as required under Section 107, 306 IPC. Instigation is totally missing. As Supreme Court held, that when the driver, wrote a suicide note, blaming his master who was tough on him, abusive, and stressed him which led to the suicide due to depression and wrote with his hand, “my master is solely responsible for my death. My life has been ruined by him”. Supreme Court, correctly ignored it, as irrelevant in the facet of criminal law. Thus a microscopic examination of the evidence and materials gathered in the case, it cannot be said by any stretch of imagination that any person intended the star to commit suicide. There is no proximity at all and no nexus between the suicide and any alleged acts of the persons. Even, if the friend took out big chunks of money then also the friend cannot be tried.

There is not even remote evidence in this case not even diary. Had it been a Ramlal/ Shyamlal a common man, police would not have spent a days’ time in closing the case. Supreme Court laid emphasis that when the person is gone and not available for cross examination in Court, unless, there is a specific allegation and material of definite nature and not imaginary or inferential, it would be hazardous for such a person to face the trial. A criminal trial is not a pleasant journey. Such suicide notes only show the anguish and that the person was harsh on him. Grudge cannot be converted into criminal trial. Unlike Bollywood film, which are make believe by and large, let us not make our criminal justice system look remotely like Bollywood.

Author is a practising Lawyer in the Supreme Court.

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Legally Speaking

Are tortious interference suits antithetical to free market competition?

Existence of a contract is an essential concomitant for this tort to have occasioned. The act of wrongfully inducing a person not to enter into a contract does not amount to tortious interference.

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What is the Tort of Interference? Strictly speaking, the foundational decision which recognised the economic tort of interference in English contract law was the case of  Lumley v. Gye rendered by the Queen’s Bench in 1853. However, it was not until the year 1978 when, in the case of Greig v. Insole, the Chancery Division crystallized the fundamental conditions to be fulfilled by a plaintiff in a suit for Tortious Interference.

 The broad parameters encapsulating the tort of interference set forth in Grieg’s case were cited with approval in a decision rendered by the Calcutta High Court in Lindsay International Pvt. Ltd v. Laxmi Niwas Mittal. This decision was perhaps what can be stated to be introductory case on the subject in Indian jurisprudence.

Developed, as the law become thereafter, the threshold conditions for the commission of this tort came to be casted into the following formulation:

Firstly, there needed to be a contract which is clearly identifiable. Existence of a contract is an essential concomitant for this tort to have occasioned. The act of wrongfully inducing a person not to enter into a contract does not amount to tortious interference (see: Midland Cold Storage Ltd. v. Steer & Ors)

Secondly, the defendant must have had knowledge of the existence of the contract. It was, however not necessary for the defendant to know the exact ingredients of the contract.

Thirdly, the breach of such contract must be have been caused by the defendant by unlawful means.

Fourthly, damages ought to have occasioned to the plaintiff due to such breach.

Winfield and Jolowicz on Tort, best condenses the commission of this tort, with the aid of an illustration, as follows:

“A commits a tort if, without lawful justification, he intentionally interferes with a contract between B and C, (a) by persuading B to break his contract with C, or (b) by some other act, perhaps only if tortious in itself, which prevents B from performing his contract.”

The recent decision by the Hon’ble High Court of Delhi in INOX Leisure Limited v. PVR Limited is the latest addition in the treatise to Tortious Interference Suits, albeit on a view au contraire.

 Factually, the premise of the suit filed by Inox against PVR Cinemas, was, inter alia, that while Inox, with an intent to expand its business footprint, had entered into a binding term sheet with a developer with regard to a property in Amritsar, PVR Cinemas continued to persuade the developer to enter into an agreement for that property with itself, by inducing it to breach the term sheet entered into by Inox and the developer. It was further averred that the developer entered into an agreement qua the same property with PVR and informed Inox that the term sheet stood automatically terminated on account of its failure to execute the main Transaction Document within the stipulated time. This, according to Inox, happened at the behest of PVR and illegal inducement of the developer by PVR was attributed. Therefore in a nutshell, Inox’s case was that PVR interfered in the contractual relationship of Inox with a third party, inspite of being aware of such contractual relationship.

The Court postulated three possible scenarios which could have occasioned, and offered the correct remedy for each of them, as follows:

If Inox had binding lease with the developer/owner of the properties and had not been put into possession of the property, his remedy was to seek to be put into possession of the property.

If Inox had no binding agreement or a lease but only an agreement to lease, its remedy was to sue for specific performance thereof; and finally.

 If Inox had a promise from the developer/owner of the said properties to grant a license to the plaintiff of the said properties and the developer/owner were in violation thereof, its remedy was to claim damages from them.

However, the High Court held that in none of the three situations, was a Suit for Tortious Interference a proper remedy against a third party (in that case, PVR). The court held that “…grant of injunction claimed by the plaintiff on the premise of the actions of the defendant comprising a tortious act of interference with contractual relations of the plaintiff, would be in violation of the fundamental right of the defendant, its promoters and directors to carry on trade and business…”.

The aid to the above enunciation was premised on a prior decision of the Hon’ble Delhi High Court in Modicare Limited v. Gautam Bali wherein it was held as follows:

“37.…where should the Court draw the line, between what constitutes enticement to commit breach of contract and unlawful interference in business on the one hand and competition on the other hand. Any new entrant in the market, to be able to create a niche for itself, in spite of the existing players, has to compete with the existing players, by approaching the same customers and the same cache of employees who over the years have acquired expertise in that particular field. ….In my view, it is practically impossible to draw a line between such persons, on their own approaching the new entrant, and the new entrant approaching them….”

 The Delhi High Court in Inox and in Modicare has in so many words expressed the view that the tort of interference could perhaps not exist in a modern day economy which is epitomized by free market competition. To summarize, the view expressed by the Delhi High court is that these tortious interference suits are infact antithetical to free market competition and stifle the growth of the economy.

The house is divided. The view expressed by the Calcutta High Court, recognizing this tort, clashes with the view of the Delhi High Court in distancing from its application in the contemporary economic climate.

Neither views can be discounted or applied in toto. It is felt that the view of the Calcutta High Court in recognizing the tort of interference has to abide by respecting the consideration for competition in the economy. For this balanced consideration the following questions (ofcourse, in addition to the above restated threshold paramenter) may need to be addressed by the courts to decipher whether an injunction against a third party for commission of said tort has occasioned or not:

Whether there is a concluded contract between two parties, of which the third party (i.e. the defendant) has express knowledge, however infinitesimal the knowledge may be?

What is the point of inflection where free market competition ends and tortious interference begins; and most importantly

Whether the presence of sufficient alternate remedies between two contracting parties such as suits seeking specific performance or of damages, would be an equitable bar from entertaining a suit against a third party for tortious interference?

Therefore, it seems that while the tort took more than a century to find its feet in common law, the same might only receive limited application in the Indian context on account of extreme globalization and competition. Only an authoritative pronouncement, perhaps by the Supreme Court, can now clarify and help converge the law on the issue. Short of that, the uncertainty of the law will only impede the development of the governing law on commercial transactions.

Adv. By Rushab Aggarwal is a advocate practising at the Supreme Court of India.

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Legally Speaking

Custodial deaths: Banality of evil?

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Mahatma Gandhi in his journal Harijan once wrote- “The police of my conception will be servants, not masters of the people. The police force will have some kind of arms, but they will be rarely used, if at all. In fact, the police men will be reformers. Their police work will be confined primarily to robbers and dacoits.”

Gandhiji saw police as a tool to forge solidaritybased relations in his social project. The men who would enter the ranks of police will be believers in nonviolence. The malfeasance on the part of Thoothukudi police, which took place in Tamil Nadu draws a sharp contrast between the role that was envisaged and what was witnessed on the unfateful night of 19th June, 2020 . All the more baffling is the timing of it when there is a global outrage against the law enforcement agencies in general, following the death of George Floyd in the United States of America.

The Toothukudi atrocity led to the death of the father-son duo in the custody. The policemen who have the moral and legal duty to observe the rule of law strayed from performing that duty. If we try to create an imagery through the lens of Mahatma Gandhi’s eyes, we would fail because our vision will get clogged up by the filth from abuse of power and a blatant neglect to the rule of law.

 The alleged charge of lockdown violation would have attracted a maximum of three months imprisonment if they were proven guilty. The policemen were clearly hoodwinked into thinking they were super cops from a cop-centric blockbuster for it was so easy for them to strip away their moral accretions.

 They violated the basic fundamental right, Article 21 of Indian Constitution that, inter alia, guarantees protection from police atrocities under the ambit of right to life and personal liberty. The Supreme court in Kharak Singh v. State of held that ‘life’ meant something more than mere animal existence. In the Maneka Gandhi v. Union of India expanded its interpretation to rule that living is not merely restricted to physical existence but it also included within its ambit the right to live with human dignity. Thus, there is no dearth of precedents to understand what is a dignified life and what threatens it.

Torture is one such element that threatens a dignified living. The apex court in D.K. Basu v. State of West Bengal has prescribed guidelines to prevent any kind of violation of rights of prisoners. Any form of torture or inhuman or degrading treatment during the investigation, interrogation or otherwise is in violation of Article 21 of the Indian Constitution.

Despite such precedents, custodial violence in India is a reality we should not shy away from. The National Crime Records Bureau (NCRB) data pegs custodial deaths at 1,727 between 2001 and 2018. However, a paltry 26 policemen were convicted of custodial violence. The situation seems grimmer in the states of Tamil Nadu, West Bengal, Gujarat, Andhra Pradesh and Maharastra where there is nil conviction despite more than 100 deaths.

Another very marked evidence of the lackadaisical approach towards custodial violence and human rights in general, is the weak functioning of National Human Rights Commission. It remains a “toothless tiger” with role being limited to providing compensation to victims.

These are tell-tale signs of the dilution of ethos of human rights and justice. Keeping this article an easy read by not making it stolidly fact-laden, we would like to categorically state that police barbarity is becoming a new normal in India. The men who were tasked to serve, rescue and protect the common man and his rights are now perplexing him from inside.

Having said that, it is pertinent to discuss how this new normal has emerged which shows our tryst with non-violence as a hypocritic observance only. India is yet to have an anti-torture legislation that could criminalize custodial violence. We signed the UN Convention against Torture in 1997, but have not ratified it yet. Thus, the government is not obligated to fulfill the commitments under the convention as of now.

What this means for the citizenry in India is that it cannot sue a police officer for any wrongdoing and such a prerogative rest only with the government. Taking cognizance of this loophole, the Supreme Court in Prakash Singh v Union of India, directed the states to constitute independent complaint authority to inquire into the cases of police misconduct. But, a study by Commonwealth Human Rights Initiative (CHRI) shows that only 12 states had constituted a Police Complaints Authority (PCA) in accordance with the directive even after a decade. Moreover, not even a single state complies with the court’s directions with regards the composition, selection process and functioning of the PCAs which was the most perturbing revelation for us.

Way Forward

It must be categorically stated that the death of the duo is a ruthless exhibition of abuse of power and there ought to be no excuse for the perpetrators. But, we must also ask ourselves whether it will be enough to set things right. This incident is also a wake-up call for our law makers to devise a robust framework to counter the evil of custodial violence.

To begin with, India should ratify the UN convention against torture. The need for obtaining sanction under Section 197 of the Code of Criminal Procedure before pursuing charges against police misconduct should be done away with.

The magistrate in the Toothukudi case sanctioned the remand of Jayaraj and Bennix without checking on injuries and bleeding. Such incidents of judicial impropriety should not go unpunished. Judicial magistrates are the first line of protection from rogue police and thus, have immense responsibility in deliverance of justice.

 It goes without saying that human rights framework in our country needs an overhaul. This argument gains more credence when it is seen in the light of enactment of the Protection of Human Rights Act (1993) and the dip in the incidents of custodial violence thereafter, reflecting a negative correlation between the two. Moreover, it is high time to consider the recommendations of the NHRC on police reforms which include, inter alia, the constitution of a Police Security and Integrity Commission (PSIC) to lay down a concrete set of service guidelines for the police.

In addition to these, Law Commission in its 198th and 273rd report has iterated that there is an urgent need to strengthen the witness protection regime to protect the victims and witnesses of custodial killings.

Apart from these institutional measures, ethical luminaries make a case for reforming the behavioural aspects too. A report by Common Cause and CSDSLokniti shows that 12 per cent of the police personnel never receive human rights training. Also, the methods adopted by policemen that are against the ethos of Article 21, ignorance of rules, unnecessary arrests etc. reflect that the Code of Conduct for the police has failed to improve policing on the ground. So, there is a need to sensitize the lower-rung policemen and imbibe the values of public service in them. A landmark DK Basu judgment comes to our mind in which the apex court issued directions to increase transparency and due diligence while making arrests.

The modernisation of police is long overdue. CAG has highlighted the issue of underutlisation of funds allocated under the Modernisation of Police Forces (MPS) Scheme. The fund can be put to use to bring interventions like body cameras, CCTVs, narcoanalysis etc. These tools and techniques would go a long way towards striking a balance that sufficiently assuages skepticism about the negative role of the police without compromising the powers they need to carry out their duties.

 Lastly, the culture of impunity needs to go. The policemen involved in the incident must realize the gravity of their sins. Strict punishment and remorse is the only way forward for them. If those involved go scot-free again, a dangerous precedent will be set.

To sum up, the police is an extended arm of the state. As such, the aim of the police must align with that of state: governance and service. The Leviathan state is an outdated concept in the age of human rights and should not come back again. Constant police harassment of people will leave the victims and lay public alike in a constant state of fear. In addition to the Tamil Nadu incident, there have been a few incidents of display of high handedness by the police in recent times during the anti-CAA protests and otherwise in the lockdown too. In the long term, increased frequency of such altercations between the police and lay populace may give rise to retributive violence that will be detrimental for the society based on peace and order.

“Never react to an evil in such a way as to augment it,” wrote the great French philosopher, Simone Weil. He could not have been more correct. Any kind of overreaction is to be avoided at this time. The need of the hour is to act before the evil of custodial violence becomes banal in India. But, instead of reacting to this unfortunate incident by blaming the police as a failed institution in entirety as has been the trend on the social media these days, we must focus on bridging the trust deficit. The police have been on the war-footing in tackling the Corona-induced crisis and we must also be thankful to them for their efforts.

Pratiksha Priyadarsini is a final year law student at Bharati Vidyapeeth Deemed University, Pune. A rank holder, Nyayshastram National Article Writing Competition. Shubham Satyam is B.Tech, Vellore Institute of Technology (VIT), he had cleared SSC CGL 2017 in his first attempt. Currently he is preparing for Civil Services Examination.

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Dilution of Section 29A of the Insolvency and Bankruptcy Code in India: Is it a myth or reality?

Prof (Dr) R.K. Chopra & Abhijeet Srivastava

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Looking at the challenges in the Company Law , the Government of India came up with The Insolvency & Bankruptcy Code, 2016 (IBC), a robust mechanism for time bound resolution of dispute of corporate entities in financial distress. Since, this code has been an evolving legislation therefore, in past few years it is noticed that many ordinances and amendments have been brought in the code. Among all, Insolvency and Bankruptcy Code (Amendment) Act, 2017; played a crucial role by inserting section 29A in the code, which created a drastic change, so as far as implementation of the objective and spirit of this code is concerned i.e. timely resolution.

Before this amendment, IBC had no framework to prevent promoters to regain control over their companies in default. This could defeat the purpose and intent of the code. Therefore, to avoid such mishap, legislator introduced section 29A to disqualify such persons. The rationale behind this was to instil fear among promoters so that they take wise decision to avoid failure of their companies and must be at arm’s length to enable an independent entity to take control of their defaulting entity. In view of foregoing, whenever a resolution plan is submitted before Committee of Creditors (COC), the role and interest of promoters need to be seen with a magnifying glass.

It has been seen in recent times that the Adjudicating Authority in its few decisions has permitted the promoters to submit their resolution plan after the company has been declared insolvent. Although, such decisions were highly praised by many scholars as it safeguarded the revival of defaulting entity, however, authors verily believe that this will subsequently dilute the intent and purpose of section 29A and will ultimately defeat the objective of this code.

Jurisprudence of section 29A, Sec 12A and regulation 30A: Does it mean rolling the clock back or providing a new dimension?

As discussed above, section 29A was inserted in the code to disqualify certain persons from submitting resolution plan to avoid reoccurrence of default of the company. However, later on, this provision was criticized by many scholars as there were many cases wherein the insolvency proceedings were initiated not due to wrong business decisions of the promoters but due to happening of contingent events and the Adjudicating Authority felt prudent that such promoters should be given one more opportunity to regain the control over their companies.

Keeping above events in mind, section 12A in the code & regulation 30A in Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate person), 2016, were introduced which provided promoters to regain the control over their company but with the approval of ninty percent (90% )of COC. However, such withdrawal can only be permitted if it is requested before the bidding process. Therefore, these provisions provided a new dimension to the code, as it intended to provide a balanced solution for safeguarding the interest of the promoters and intention of the code. However, based on judgments discussed below, the authors share their own views.

 Judicial trends creating uncertainty

 Let us examine few cases on the subject:

 In Essar Steel India Limited v. Satish Kumar Gupta & Ors, initially COC raised question on the eligibility of the prospective bidder (Arcelor Mittal) & Nu-metal under section 29A of the code. In spite of the fact that, Arcelor Mittal offered 25% higher than other bidders devoid of this, the promoters were barred from offering a bid due to the ineligibility under section 29A. Promoters also attempted to invoke section 12A to withdraw their application from Corporate Insolvency Resolution Process (CIRP); however, failed to get approval of lenders. But later on, Supreme Court of India allowed promoters to submit resolution plan stating it to be an exceptional circumstances. Keeping aside the commercial viability of the plan, authors believe that this will dilute the intent and purpose of section 29A. As rationale behind inserting this section was to disallow promoters of the companies to submit the resolution plan.

Subsequently, the judgment of Brilliant Alloys Private Limited v. S. Rajagopal brought new dimension by interpreting that the introduction of regulation 30A is directory in the nature and Adjudicating Authorities may permit promoters to withdraw their application from insolvency proceedings with the approval of COC under section 12A, even after submission of Expression of Interest (EOI) but in exceptional circumstances.

Authors would like to shed light, that the Court did not clarified what is meant by, neither laid down any definitive test to determine the same; as it will provide opportunity to promoters to withdraw insolvency proceedings after EOI by stating it as exceptional circumstances.

The above judgments does not provide any rational basis and therefore the stop gate to promoters by section 29A is getting withered away. Later on, the effect of above decisions was also seen in the case of Andhra Bank v. Sterling Biotech; wherein the promoters of corporate debtor offered to creditors for a one time settlement proposal and requested for withdrawal of application under section 12A of the Code. Here, the moot question was; whether promoters can withdraw the insolvency application during CIRP because law permits such withdrawal before EOI only? But in the instant case, the National Company Law Appellant Tribunal (NCLAT) allowed promoters to withdraw the application under section 12A as COC has given approval of more than 90%. Appellate tribunal also held that section 29A is not applicable when promoters rely on section 12A.

 In view of foregoing, it seems section 12 A is uncontrolled by section 29A. Additionally, NCLAT ordered promoters to pay off the dues within thirty (30) days of the order of tribunal or failing which, liquidation proceedings will commence. This decision was highly praised by many scholars as it was considered to be a positive step towards safeguarding the interest of promoters and it was anticipated that creditors will be benefited by execution of the resolution plan. Months have been passed, but promoters have not yet paid the money and now requesting an additional time of six months (6) from the NCLAT to repay their dues. Ironically, NCLAT has not even initiated liquidation process against the company yet. This case has raised several questions regarding the sanctity of the withdrawal process. Moreover, this case has become a classic example about the implementation of section 29A in the code.

Conclusion

The above analysis suggests that the intention and objective of the code was revival of the corporate entities in a time bound manner. However, after going through above cases, it is evident that the IBC has failed to comply with the timeline of 330 days as envisaged under the code and this has impacted the confidence of investors intending to participate in the bidding process of such defaulting entities.

Keeping in mind the above objective, the introduction of section 29A to disqualify certain persons, who should not take benefit of their own wrong and therefore, should not be given another opportunity to regain control over the defaulting entities. However, with the introduction of section 12A and few decision discussed above, the dilution of section 29A is clearly evident. The consequences of such dilution can be easily witnessed in the case of Andhra Bank.

Moreover, authors believe that tribunal should be cautious enough not to interfere unless, it is a rarest of the rare case. But at the same time, tribunal should lay down the standard test to assess what comes under the category of exceptional circumstances. Merely, by giving rationale that a particular case falls under the above category; will open the door for arbitrariness which will prejudicially affect the interest of investors. Adjudicating Authority should comply with the intent and purpose of section 29A, 12A & regulation 30A along with the jurisprudence on the subject by complying the doctrine of Ejusdem Generis.

It is therefore, high time that even if a benefit is intended to be given to the bonafide promoter, the yardstick should be fixed by the legislature, wherein the above provisions be combined with section 29A as a genus and section 12A & regulation 30A as species so that the objectives of the code are achieved in its true spirit.

Prof (Dr.) R.K. Chopra is Professor at UPES, School of Law, Dehradun and Abhijeet Srivastava is a final year law student at UPES, School of Law, Dehradun.

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Madras High Court’s injunction against Patanjali’s Coronil

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Coronil, the much marketed and advertised product offered by Baba Ramdev’s Patanjali had run into many imbroglios and legal hurdles since it was unveiled and introduced as a medicine to fight the COVID-19 coronavirus. Already facing criminal complaints and restraining orders against offering the drug for sale coupled with executive oversight into the drug’s claims the much controversial Coronil has again met another legal action. This time however it is not the prophylactic or curative merit of the drug but rather the name by which it is marketed itself in question. Needless to go into the controversy of whether Coronil can work wonders against the pandemic let us head straight into the nonmedicinal dispute at hand.

Recently, Madras High Court passed an order restraining Patanjali from trading the drug under the name “Coronil” as it infringed upon another person’s trademark and proprietary rights in the name “Coronil”. However, a perusal of the order shows that the aggrieved party is not some competing pharmaceutical giant but a company which deals in chemical cleaning and manufacturing of material handling systems and polymeric epoxies for various factories in India and abroad. M/s Arudra Engineering Pvt Ltd. (the plaintiff) brought a suit against Patanjali and was successful in getting an interim injunction restraining the latter from infringing upon the former’s trademark. The plaintiff had registered its trademark ‘CORONIL -92 B’ for trading its products which were used for industrial cleaning and chemical preparations for industrial use in 1993 itself and the trademark was renewed from time to time. The trademark still subsists due to its timely renewal. The plaintiff has customers in India as well as abroad and its products are traded under the abovementioned trademark. It has also made a substantial amount of sales using the trademark.

The court was inclined to grant the injunction since the plaintiff was successful in fulfilling the ingredients as laid down in S. 29(4)(b) of the Trademarks Act, 1999 which states that even if the infringing trademark is used to trade goods or services which are unrelated to goods or services traded under the infringed trademark still it will amount to infringement of the trademark. In this case clearly the Coronil tablet offered by Patanjali is claimed to cure the ailment of coronavirus and thus is distinctly dissimilar and different from the trade of the plaintiff who deals in industrial cleaners and chemicals. However, after arriving at the observation that the spelling and name used by Patanjali is same as that of the plaintiff the interim injunction was granted keeping in mind the law as enumerated in S. 29(4)(b) of the Trademarks Act, 1999.

 In view of this ex parte adinterim injunction a very pertinent question is raised as to the due diligence and intellectual property management strategy which Indian companies need to undertake before launching a product especially if it is marketed and claimed to be a breakthrough like Coronil. It seems that Patanjali Ayurved had done too little or no due diligence before launching the product in the market. There seems to be a certain haste in launching the product not just in relation to its medicinal claims and merits but also its branding. For a product which has not made much headway in the medicine market vis a vis its curative and prophylactic claims the injunction granted against Patanjali has come as a great setback as both the inherent and overt claims in the name “Coronil” seem to be facing an existential crisis. A simple trademark availability search would have averted an impending crisis. If it was brought to the notice of the company’s management that the proprietary right in the trademark would be divested due to the rights of another party then probably the branding trajectory of Patanjali would have been surely different. It is a matter of trial and fact to see what was the original intent of the plaintiff to injunct Patanjali from using the trademark as in my opinion there does not appear to be an inadvertent confusion as to the origin and association of the Coronil tablet with some other/ competing proprietor among the public at large. Moreover, the imbroglio as to its medicinal efficacy has raised even more eyebrows and inextricably linked Coronil to Patanjali Ayurved. However, there can be other claims as to distortion and dilution of the trademark of the plaintiff.

A simple search on the Controller General of Patents, Designs and Trade Marks online registry shows that the trademark Coronil is not just a registered trademark of the plaintiff in class 1 but even a deceptively similar mark under the name “Coronill” is also pending registration before the Trade Marks registry under the same class (class 5) in which Patanjali has filed a trademark application for marketing its alleged cure. This shows a great lapse on the part of Patanjali in devising an intellectual property acquisition strategy and the hurdles faced at the outset set the ball rolling for much more potential litigations. Here, it would also be important to focus on the brand value which “Coronil” will acquire if it clears both the hurdles of its proprietary right in the name and the medicinal efficacy of the same. If a brand faces such an uphill task as soon as it is introduced then there would be a need to introduce much more corrective marketing strategies to be implemented by Patanjali. The customer trust and good will which Patanjali has enjoyed till now may also be jeopardized.

Since, there are concerted efforts on the part of the Indian industry to be self reliant and sufficient vis a vis decreasing its dependence on foreign imports and products in the light of the recent geo-political maneuvers the Indian industry needs to not just produce and manufacture products and offer services but also correct its IP strategy and take IP management seriously. A small step taken in the right direction may go a long way in enhancing and increasing the brand value and reputation of the products. Basic steps like due diligence and availability search may help to steer clear of potential legal disputes. It is worth noting the zealousness and proactive approach with which the plaintiff has succeeded in guarding and asserting its trademark rights. Indian FMCG giants and MSMEs have a leaf to take out of this trademark dispute in brand strategizing and value creation.

 Adv. Amar Patil practices at the Bombay High Court.

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Fault lines in the Indian criminal justice system

ASHOK BHAN

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“Injustice anywhere is a threat to justice everywhere”. -Martin Luthar King Jr.

“Law should not sit limply, while those who defy it go free and those who seek its protection lose hope”. (Jennison v. Baker (1972) 1 All ER 997).

The sovereign power of the Indian State is never felt as starkly as in interactions with the criminal justice system. Broadly stated, the influence of the police is all pervasive when it comes to enforcing penal statutes. In colonial India, the vast police powers enjoyed by the Government was the object of sharp criticism and ridicule insofar as there appeared to be no accountability or oversight and no form of redress. It is interesting note that the nationalists who strongly abjured the powers of the police were enthusiastic to retain them in the post-colonial nation and quickly thereafter paved the way for its rapid expansion.

Whatever views one holds about the penal law, no one will question its importance to society. This is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to bear on individuals. Its promise as an instrument of safety is matched only by its power to destroy. Nowhere in the entire legal field is more at stake for the community or for the individual.

The early decades of independence were characterized by the ‘license-raj’ where innumerable statutes were introduced to curb economic offences. These included the various laws passed by state governments to implement the directive principle of prohibition, further various economic legislations were introduced to fortify the commodity control as pre-existent. Most of these statutes were enacted to be ‘special’ legislations and operated outside the bounds of ordinary criminal procedure. The need for warrants were done away with and securing bail was made particularly difficult. The criminal law jurisprudence that we see today, is undeniably a legacy of the colonial state and the early decisions made in the wake of post-colonial India.

While the scope and breadth of police powers have remained the same, they have suitably modified to deal with the more sophisticated offences of the 21st century. A laudable development in this regard is the introduction of the Letter Rogatory system where international governments pledge mutual legal assistance in relations to crimes which have been perpetrated across international boundaries.

There are always two sides to thinking about criminal reform. One the one hand, the state will have to ensure that the powers of the police and associated magistracy is not diluted, negatively impacting their ability to enforce the laws of the land. On the other hand, as various examples of custodial violence and extrajudicial killings have brought to fore, there is a need to protect the citizen from the abuse of police powers. It is in the junction between these two paradigms that the courts of the country have a important responsibility.

Chief Justices of India in periodic chief justices conferences have time and again warned about the the fault lines in Criminal Justice System in India. It is common knowledge that the two major problems besieging the Criminal Justice System are huge pendency of criminal cases and the inordinate delay in disposal of criminal cases on the one hand and the very low rate of conviction in cases involving serious crimes on the other. This has encouraged crime. Violent and organised crimes have become the order of the day. The white-collar crime has become a profitable business. Life has become unsafe and people live in constant fear. Law and order situation has deteriorated and the citizens are losing confidence in the Criminal Justice System.

The magistrate has been granted supervisory and corrective powers over the functioning of the police. The magistrate interacts with the police and the accuse person at various stages from the grant of remand to police custody and to extend from time to time as required. This also involves examining the accused to accurately discern their well-being to call for medical tests where it appears that the accused person is being subjected to violence, intimidation and torture. This is a particularly important functions since accused persons are usually powerless when in police custody. The Supreme Court of India has in various decisions stated that the magistrate is not to act as a post-office for the prosecution, merely reiterating the version of the police. We have seen that in various recent examples, the magistrates do not appear to be functioning as independent supervisors of the police. At a first level much needs to be done to liberate the magistrates from the veil of executive influence to better discipline and reign in the abuse of police powers.

Various reports have brought to the fore the despicable state of under-trials in India. It is appalling that over one-third of the people presently occupying the prisons. India is known to have the third largest under-trial population in the world. In such cases, the trials have been pending for decades and the accused person is condemned to suffer inordinate periods of imprisonments while still awaiting trial. Once again, the magistracy is called upon to act. The Supreme Court has reiterated time and again that pre-trial detention can only be justified if there is a real anticipation of the accused person prejudicing the trial, influencing witnesses or absconding. Even in this respect, the prosecution is happy to provide exaggerated versions of apprehensions and the magistrates continue to act as post-boxes.

It is in this juncture that there is also a need to address the fact that quality of legal representation makes a world of a difference of the accused person. While people with the means are able to approach higher courts in revisions or appeals to secure their rights, a vast section of the population who do not possess the means are to be provided free legal aid. While on paper, India appears to have a thriving legal aid system, the truth of the matter perks it ugly head out from newspapers are reports which show that most often the legal aid lawyer has never met with the accused to understand their case thereby making a mockery of the constitutional right to legal representation.

In this context it may also be relevant to note that the Indian police are one of the most powerful police forces in the democratic world insofar as they have wide powers under special legislations such the UAPA, NSA etc. to detain an individual without trial for an extremely long period of time. While there is no doubt that these legislations are meant to deal with a completely different category of offences, the system fails to provide any redress to those wrongly arrested. In such cases, the magistrate appears to be completely bereft of any powers or inclination to take the investigating agencies to task to demonstrate even a semblance of a case. The burden of proof is completely reversed in seeking bail, making it impossible for accused person to prove their innocence while still is custody and without being able to lead evidence. This is another area that need special attention from the courts and legislature alike. Offences under special legislations (PCA,PMLA,SCST Atrocities Act,UAPA )and even offences against women often see low conviction rates. This indicates that there are organisational and structural biases and inefficiencies that are to be ratified.

We have seen however a lot judicial reform when it comes to sentencing, mandatory minimum sentences for minor offences have been done away with and it has become a norm for courts to separately hear aggravating and mitigating circumstances prior to sentencing. While the sentencing procedure has seen a marked improvement in the last few decades, the issue of prison reform is a looming crisis that successive governments have simply failed to engage with. Prison is to serve not just a retributive role but is supposed to also help reform the convicted individual and to imbibe valuable skills. In this respect, prisons (save a few minor exceptions) seem to be violent and neglected den of vice, thereby increasing the convicted individual’s propensity for crime.

 We have adversarial system. The Adversarial System lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty to discover truth as in the Inquisitorial System. When the investigation is perfunctory or ineffective, Judges seldom take any initiative to remedy the situation. During the trial, the Judges do not bother if relevant evidence is not produced and plays a passive role as he has no duty to search for truth. As the prosecution has to prove the case beyond reasonable doubt, the system appears to be skewed in favour of the accused. It is therefore necessary to strengthen the Adversarial System by adopting with suitable modifications some of the good and useful features of the Inquisitorial System.

 Inductions of more Judges may help in reducing the arrears, it is the competence and proficiency of the Judges that contributes to better quality of justice. Unfortunately, adequate attention is not paid to look for competent persons proficient to handle criminal cases. Anybody who sits and watches the proceedings in the Courts will not fail to note that the level of competence of the Judges of the Subordinate courts at different levels is not adequate possibly because the training did not give emphasis on professional skills and case/court management. If the Judge is not competent he will take longer time to understand the facts and the law and to decide the case. This is one of the reasons which has contributed to enormous delay and huge pendency of cases. Any lawyer with experience will be able to tell you which Judge is competent and which Judge is not, which Judge is quick and which Judge is slow, which Judge’s decisions are by and large sound and which Judges decisions are not satisfactory. Even now there are many good Judges in the subordinate Courts but that number is declining.

The quality of justice suffers when the Judge is not competent. People come to the Court complaining about the denial of rights by other individuals, institutions or the State itself. They expect the Judge to be experienced, knowing, competent, upright and possessing all the attributes required to render justice to the parties. It is a very onerous responsibility to sit in judgment over the conduct and affairs of other citizens. Deciding cases is a very complex exercise. It needs good knowledge of the substantive and procedural laws. It requires experience of men and matters, abundant commonsense, intelligence, logical and analytical mind. The Judge has to possess ability to do hard work and concentrate on the issues involved. Above all he must be a man of character having abiding faith in the values of life.

TRUTH AND JUSTICE

Swami Vivekananda has said: “Truth does not pay homage to any society ancient or modern. But society has to pay homage to truth or perish”

 The Indian ethos accords the highest importance to truth. The motto Satyameva Jayate (Truth alone succeeds) is inscribed in our National Emblem “Ashoka Sthambha”. Our epics extol the virtue of truth. Gandhiji gave us truth – as the righteous means to achieve independence by launching the movement of Satyagraha.

For the common man truth and justice are synonymous. So when truth fails, justice fails. What is the place accorded to ‘truth’ in the Criminal Justice System in India?

It is worthwhile to recall the observations of the President of India.

 “The Adversarial System is the opposite of our ancient ethos. In the panchayat justice, they were seeking the truth, while in adversarial procedure, the Judge does not seek the truth, but only decides whether the charge has been proved by the prosecution. The Judge is not concerned with the truth; he is only concerned with the proof. Those who know that the acquitted accused was in fact the offender, lose faith in the system”. Judges and emphasized the importance of finding truth in several cases.

The Supreme Court has criticised the passive role played by the

 In the case of Ram Chandra vs. State of Haryana, AIR 1981. SC 1036, the Supreme Court has said:

…there is an unfortunate tendency for a Judge presiding over a trial to assume the role of referee or umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortion flowing from combative and competitive elements entering the trial procedure.

The rights of the victim to participation and aid the investigation, right to prefer an appeal against acquittals and right to compensation becomes integral to ‘justice to victims’.

History of mankind is replete with instances where under every type of regime the accused in custody was tortured within the four corners of the cell for forcing him to confess or disclose information, when there is none to hear his cries or to come to his rescue.

The right not to be compelled to testify against himself is a universally recognised right of the accused under Art 14 of the International convention on civil and political rights and is a fundamental right conferred by Art 20 (3) of the Constitution. It says that “No person accused of any offence shall be compelled to be a witness against himself”. This is often described as right to silence. Such a compulsion is prohibited by of Article 20(3).

Huge pendency of cases and poor rate of convictions are the twin problems of the judiciary,that has direct impact on the criminal justice system. The major area that needs attention for improving the situation is providing adequate number of Judges who are proficient in dealing with different variety of criminal cases. The statistics reflect gross inadequacy of the Judge strength at all levels. The Supreme Court has examined this issue and given directions to increase the Judge strength from the existing Judge population ratio of 10.5 or 13 Judges per million of people to 50 Judges per million people in a phased manner within five years. there is a constitutional right in article 21 for right of speedy trial for the accused, that requires to be strictly followed. There is also a need to radically re-think the very need for certain offences which were framed close to two centuries ago and are no longer justifiable in the context of the 21st century morality. In this respect, reference could be made to the offence of sedition which is susceptible to overbroad definitions and resting uncomfortably with the constitutional right to freedom of expression. Since any incitement to violence as tangibly discernable may be punished and curbed through various other offences, sedition in this context appears to almost be a ‘thought-crime’ that may be used to extract political vendetta. Similarly, various studies have shown that convictions under criminal defamations are extremely low, however the mere registration of a FIR for defamation can lead to deleterious effects upon the accused persons. Similarly, there is also a need for sober re-evaluation on the use of the death penalty. It has been repeatedly affirmed that no exclusive deterrent effect that is achieved from retaining a barbaric 15th century form of punishment and the justification to retain it should be exhaustively considered, especially in light of the Constitution Bench of the Supreme Court’s ruling in Bachchan Singh.

All the above aspects require a detailed evaluation, sober assessment and robust reforms are to be introduced. It is hoped that the recently constituted committee for criminal justice reform constituted by the Union Government can address these fault lines before they yawn open to signify the abject failure of the Indian criminal justice system.

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