It is remarkable, righteous, refreshing, rejuvenating and reasonable to learn that while ruling explicitly, elegantly, eloquently and effectively that time has come to initiate action against persons who file frivolous complaints under Sections 354, 354A, 354B, 354C, 354D IPC etc only for an ulterior purpose, the Delhi High Court has just recently on February 23, 2021 in a latest, learned, laudable and landmark decision titled Laishram Premila Devi & Ors. vs The State & Ors. in CRL. M.C. 533/2021 and CRL.M.C. 534/2021 has imposed a cost of Rs. 30,000 on the petitioners with a warning not to file false and frivolous cases. It is a national tragedy that we see that laws meant for protection of women are fast turning into weapons of stabbing men in the most cowardly, dastardly and gruesome manner. But our lawmakers care a damn for it! This alone explains why there is no provision in our laws whereby she is made to suffer in the same manner as the man if she dares to ever level false charges against men!
It is a matter of national shame, national disgrace and national humiliation that a man named Vishnu Tiwari had to suffer without committing any offence 20 years of incarceration in connection with a false rape case filed against him by a woman owing to an alleged land dispute in Lalitpur district in UP. He was acquitted just recently by the Allahabad High Court but only after spending 20 years in jail! Why is it that a woman who files a false rape case is not similarly made to undergo rigorous imprisonment for at least the same period which the man had to undergo? Why is she usually let off without even imposing any jail term or even fine or even reprimand! Why our lawmakers most shamelessly, senselessly and stupidly not do anything on this score?
To put it mildly: Why women has been given the unfettered licence to attack men whenever she likes to level most absurd charges against men as we see in this case and in Vishnu Tiwari case and so many other cases also and then yet escape away very lightly? This has to be checked immediately by imposing strict punishment on those who dare to malign men without any valid ground so that no women ever dare to take the right to life and personal liberty as guaranteed under Article 21 of Constitution for granted! Is women stupid, senseless, mad and lunatic that she does not understand anything when she levels most serious allegation against men of rape, against her own husband of dowry charges using Section Section 498A of IPC as most potent weapon where most of the cases are also found to be false and in many other cases?
It is high time and women also now must be held accountable for her misdeeds! She should not be let off lightly or after imposing just some fine as she is solely culpable for ruining man’s life for no fault of his! As we all know that women these days demands equality in every field then why should she demand exemption here? No women of right senses will ever demand so and she should be seriously taken to task if she does something wrong intentionally against men!
To start with, the ball is set rolling by single Judge Bench of Justice Subramonium Prasad of Delhi High Court who authored this leading judgment by first and foremost putting forth in para 1 that, “CRL.M.C. 533/2021 has been filed for quashing FIR No.239/2017 dated 12.05.2017, registered at Police Vasant Kunj(North), New Delhi for offences under Sections 509, 506, 323, 341, 354, 354A and 34 IPC. The complainant/respondent No.2 in the said FIR has alleged that on 12.05.2017, when she was going to drop her children to school, the accused who reside in the neighbourhood beat her and outraged her modesty and also committed act of sexual harassment. The contents of FIR are not being repeated here.”
As we see, the Bench then observes in para 2 that, “CRL.M.C. 534/2021 has been filed for quashing FIR No.238/2017 dated 12.05.2017, registered at Police Vasant Kunj(North), New Delhi for offences under Sections 509, 506, 323, 341, 354, 354A and 34 IPC.”
While elaborating on the facts of the case, the Bench then points out in para 3 that, “The complainant in the said FIR is the accused in CRL.M.C. 533/2021. The allegation in this FIR is that the petitioners herein have committed offences punishable under Section 354 IPC i.e. assault or use of criminal force to woman with intent to outrage her modesty. The parties in all the FIRs are residents of 95/9, Kisangarh, Vasant Kunj, Delhi, and are neighbours.”
To put things in perspective, the Bench then envisages in para 4 that, “It is stated that with the intervention of some common friends, relatives and family members, the parties have settled their dispute and an oral settlement has been reached between the parties. It is stated that both the parties, the petitioners and respondents in CRL.M.C. 533/2021 and CRL.M.C. 534/2021, have realised their mistake and they had decided to compromise the matter.”
As it turned out, the Bench then stated in para 5 that, “As per the said oral settlement, the parties have agreed that they will approach this Court for the quashing of the abovementioned FIRs. It is stated that they had agreed that they will maintain harmonious relations with each other. It is requested that the FIRs be quashed as the dispute has been amicably resolved.”
To be sure, the Bench then also discloses in para 6 that, “The parties have also filed their respective affidavits affirming the fact that the matter has been settled amicably. It is also stated that the complainants in both the petitions do not have any objection if the instant FIRs and the proceedings emanating therefrom are quashed.”
Most significantly and most remarkably, what forms the cornerstone of this brilliant, brief, blunt and bold judgment is then stated superbly and suavely in para 7 wherein it is held explicitly, elegantly, eloquently and effectively that, “Unfortunately, it is now becoming a trend to register FIRs alleging offences under Sections 354, 354A, 354B, 354C, 354D IPC either to force a party from withdrawing a complaint instituted against them or to arm twist a party. Offences under Sections 354, 354A, 354B, 354C, 354D IPC are serious offences. Such allegations have the effect of tarnishing the image of the person against whom such allegations are made. Allegations regarding these offences cannot be made at a drop of a hat. This practice is an abuse of the process of law. The instant case is a classic example as to how frivolous allegations of Section 354 and 354A have been levelled by the parties against each other. A small fight regarding parking has been escalated by levelling allegation of outraging modesty of women. This court can take judicial notice of the fact that the police force is very limited. Police personnel have to spend time in investigating frivolous cases. They have to attend court proceedings, prepare Status Report etc. The result is that investigation in serious offences gets compromised and accused escape because of shoddy investigation.
Time has come to initiate action against persons who file frivolous complaints under Sections 354, 354A, 354B, 354C, 354D IPC etc. only for ulterior purpose. Some of the petitioners in these instant petitions are students who should understand not to take courts and the police for granted and assume that anything and everything can be settled and they can get away by filing false cases.”
Furthermore, the Bench then goes on to add in para 8 that, “In view of the mutual settlement arrived at between the parties, this Court is satisfied that no useful purpose will be served in prosecuting with the present proceedings. Resultantly, the FIR No.238/2017 and FIR No.239/2017 dated 12.05.2017, under Sections 509, 506, 323, 341, 354, 354A and 34 IPC registered at Police Vasant Kunj(North), New Delhi and the proceedings emanating therefrom are hereby quashed. The parties shall remain bound by the mutual settlement and the undertaking given to the Court.”
Finally, while disposing of the petition as stated in para 8, the Bench then holds in para 9 that, “Since the Police has had to spend valuable time in investigating the offence and considerable time has been spent by the Court in the criminal proceedings initiated by the parties, this Court is inclined to impose cost on the petitioners with a warning not to file false and frivolous cases. The petitioners in CRL.M.C. 533/2021 are directed to deposit a sum of Rs.30,000/-(Rupees Thirty Thousand Only) with ‘DHCBA Lawyers Social Security and Welfare Fund’ within three weeks from today and the petitioners in CRL.M.C.534/2021 are directed to deposit a sum of Rs.30,000/-(Rupees Thirty Thousand Only) with ‘DHCBA Lawyers Social Security and Welfare Fund’ within three weeks from today. Details of the Account are as under:
Account Name: DHCBA Lawyers Social Security and Welfare Fund
Account Number: 15530100009730
Bank Name: UCO Bank
Branch: Sher Shah Road, New Delhi
IFSC Code: UCBA0001553
Copy of the receipts be also filed with the Registry to show compliance of the order.”
While what the learned Judge – Justice Subramonium Prasad of the Delhi High Court has held is best suited in the present circumstances but it is high time and now penal law must be amended suitably. A woman under no circumstances should be allowed to get away lightly after levelling the most serious allegations which tarnishes the reputation and dignity of man to the hilt and in many cases he is made to suffer imprisonment in fake cases as we saw most recently in Vishnu Tiwari case where he had to suffer imprisonment in a fake rape case for no fault of his! This is terrible!
It must also be asked: How can those women who dare to hit men below the belt be allowed to escape so lightly with a mere warning or a fine of few thousand rupees? Laws meant for protection of women cannot be allowed under any circumstances to become a potent weapon to harm men below the belt in the most heinous manner under the garb of “seeking justice for women”! Laws are meant to be used and not abused but most unfortunately we are seeing that in many cases laws meant to protect women are themselves becoming potent weapon of abuse and this is what needs to be checked, combated and decimated by punishing severely all those who dare to indulge in it! This is what our lawmakers are showing no intention to do and this is what merits course correction by immediately amending our concerned penal laws accordingly. It cannot be held in abeyance any longer now!
Sanjeev Sirohi, Advocate,
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Police personnel cannot be appointed jail superintendent, says Uttarakhand HC
In a significant judgement pertaining to prisoners rights and affecting them directly, the Uttarakhand High Court has in a latest, landmark, laudable and learned judgement titled Sanjeev Kumar Akash v. State of Uttarakhand & Ors in Writ Petition (PIL) No. 25 of 2021 delivered on 12 April 2021 has held that police personnel cannot be appointed as Jail Superintendent. A Division Bench comprising of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma observed that we have come to the age of “Reformation and Rehabilitation of Prisoners”. It held that the purpose of police is very different from that of Jail Superintendents and as a natural corollary, their trainings and psyche are poles apart. Hence the former cannot possess the position of the latter.
To start with, Chief Justice Sri Raghvendra Singh Chauhan who has authored this notable judgment for a Bench comprising of himself and Justice Alok Kumar Verma of the Uttarakhand High Court sets the ball rolling by first and foremost pointing out in para 1 that, “Mr. Sanjeev Kumar Akash, the petitioner, has filed the present Public Interest Litigation in order to challenge the order dated 12.02.2021, passed by the Secretary, Department of Home, the respondent no. 2, whereby the Officers of the Police Department have been given the additional charge of the office of the Senior Superintendent/Superintendent of Jail at Sitarganj, Haldwani, Haridwar, Dehradun and Roorkee. The petitioner has further challenged the consequential order dated 12.02.2021, passed by the Inspector General of Prisons, the respondent no. 3, whereby the Officers of the Police Department have been transferred, and posted with the additional charge of Senior Superintendent/Superintendent of Jail at various prisons in the State of Uttarakhand.”
While elaborating on the facts of the case, the Bench then enunciates in para 2 that, “Briefly stated, the facts of the case are that, as per the structure in the Department of Prison in the State of Uttarakhand, there are three sanctioned posts of Senior Superintendent of Jail, and nine sanctioned posts of Superintendent of Jail. Out of the nine sanctioned posts of Superintendent of Jail, four posts are to be filled up by way of direct recruitment, and five posts are to be filled up by way of promotion from the post of Jailor. Presently, one post of Senior Superintendent of Jail, and four posts of Superintendent of Jail, have been filled up. Therefore, currently two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail are lying vacant. According to the State Government, considering the difficulties faced in running the Jails properly, it has taken a conscious decision to give additional charge of Senior Superintendent of Jail, and Superintendent of Jail, to officers of the Indian Police Service (IPS). Hence, the present Public Interest Litigation before this Court.”
On the one hand, the Bench first dwells on the petitioner’s contentions in para 3 stating that, “Ms. Kamini Jaiswal, the learned Senior Counsel for the petitioner, has raised the following contentions before this Court :-
Firstly, that the job responsibility and the training of the Police Officers, and those of the Officers of the Jail Administration, stand on different plains. The duty of the Police Officers is preventive and penal, and spans the arena of investigation, prevention and protection, and maintenance of law and order. On the other hand, with the emerging modern trends in penology and theories of punishment, the fundamental duty of the Officers of the Department of Jail is the protection, the reformation, and the rehabilitation of the prisoners. Since the job responsibilities are of different nature, the psychological makeup, the thinking, the conduct of the Police Officers and the Jail Officers, perforce, has to be quite different. Whereas, generally a Police Officer sees an offender as a culprit, as a person who has violated the law, and thus deserves to be condemned and punished, the Officers of the Department of Prison see prisoners as human beings, who have erred, who need to be reformed, who need to be rehabilitated, and brought back as productive members of the society. Thus, the very philosophy behind the interaction between a Police Officer and an offender, and the interaction between a Jail Officer and the prisoner, stand on a different footing. Therefore, one cannot be confused with the other.
Secondly, keeping this distinction in mind, even law has bifurcated these two services into two different classes; the laws have empowered them differently. Therefore, to confuse these two classes would be violative of the fundamental philosophy, which govern these two different services.
Thirdly, this bifurcation of the two departments, and the philosophy behind working of the two departments, is not unique to India. But has universal application throughout the world. According to the learned Senior Counsel, the United Nations has issued “Standard Minimum Rules for the Treatment of Prisoners”, better known as “the Nelson Mandela Rules”. These Rules prescribe the “good principles and practice in the treatment of prisoners and prison management”. Rules 74 to 82 deal with “Institutional Personnel”. Rule 74 provides for “careful selection of every grade of the personnel”. It emphasises “on their integrity, humanity, professional capacity, and personal suitability for the work that the proper administration of prisons depends”. Rule 74(3) further stresses on the need for appointment of prison personnel “on a full-time basis”. Rule 75(2) states that “before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences”. Rule 76 further states that the training referred to in Rule 75(2) shall include, at a minimum, training on “rights and duties of prison staff in the exercise of their functions, including respecting the human dignity of all prisoners, and the prohibition of certain conduct, in particular torture and other cruel, inhuman or degrading treatment, or punishment.” Rule 79 further states that “the Prison Director (Superintendent of Jail in India) shall devote his or her entire working time to official duties, and shall not be appointed on a part-time basis. He or she shall reside on the premises of the prison or in its immediate vicinity.”
Relying on the Nelson Mandela Rules, the learned Senior Counsel has emphasised that the Superintendents of Jail are required to undergo a particular training, which will inculcate a sense of dignity of all the prisoners, will make them humane, and sensitise them to the plight of the prisoners, to their families, and to the prison conditions. The learned Senior Counsel has further stressed on the need for appointing the Senior Superintendent/Superintendent of Jail on a full-time basis, rather than on a part-time basis.
Fourthly, referring to the Uttar Pradesh Jail (Group A and B) Service Rules, 1982 (for short “the Rules, 1982”), the learned Senior Counsel has submitted that Rule 3(k) defines the post of “Superintendent, District Jail” to mean “the whole-time Superintendent, Jail appointed in accordance with the 1982 Rules”. According to Rule 5(6) of the Rules, 1982, the post of Superintendent of District Jail is to be filled up fifty percent by direct recruitment, and fifty percent by promotion from amongst the regularly appointed Deputy Superintendents/Jailors with a minimum of five years’ service as Deputy Superintendents, or Jailors or both. Moreover, Rule 14 deals with “determination of vacancies”. Rule 15 deals with the “procedure for direct recruitment”. Rule 16 deals with the “procedure for recruitment by promotion to the post of Superintendent, District Jail”. Therefore, according to the learned Senior Counsel, the procedure for making an appointment to the post of Senior Superintendent/Superintendent of Jail is clearly prescribed by Rules 14, 15 and 16 of the Rules, 1982. These Rules do not permit ad-hoc appointment of Police personnel on the post of Senior Superintendent/Superintendent of Jail. Therefore, the impugned orders are clearly in violation of the Rules, 1982.
Fifthly, even the Code of Criminal Procedure, prevents the keeping of an undertrial prisoner in police custody beyond a stipulated period of time. According to Section 167 of Cr.P.C, an accused cannot be detained in police custody beyond a period of fifteen days. In case the investigation is not completed within a period of ninety days, for offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, the offender would have to be granted bail under Section 167(2)(a)(i) Cr.P.C. Therefore, even the Cr.P.C. does not envisage keeping of undertrial prisoners in police custody for too long a period. Even otherwise, while keeping an offender in judicial custody, he/she cannot be kept beyond a period of sixty days or ninety days in case the investigation were not completed within the stipulated period of time. Moreover, in case the investigation were to be completed within the stipulated period of sixty days or ninety days, and in case bail were not granted by a competent Court, an undertrial is required to be kept in judicial custody. But, by appointing police personnel as Senior Superintendent/Superintendent of Jail, for all practical purposes, the custody is suddenly changed from a judicial one to a police one. Therefore, the learned Senior Counsel submits that the impugned orders violate the letter and the spirit of Section 167 Cr.P.C.
Lastly, despite the fact that a prisoner loses the freedom of movement, he/she continues to enjoy the other fundamental rights, as guaranteed by the Constitution of India. Therefore, Article 21 of the Constitution of India, guaranteeing protection of Life and personal liberty, continues to shine even in the dark corners of a prison cell. According to the learned Senior Counsel, once a procedure has been established by law that too a procedure backed by certain penological philosophy- it cannot be violated by the State. Therefore, the State is legally bound to implement the service rules as contained in the Rules, 1982, to implement the requirements of Cr.P.C, to implement the constitutional philosophy, as embodied in the Preamble of the Constitution of India, and to implement the “Nelson Mandela Rules”. Hence, according to the learned Senior Counsel, the impugned orders deserve to be set-aside by this Court.”
On the other hand, the Bench then further states about the States contention in para 4 wherein it is put forth that, “On the other hand, Mr. Anil Kumar Bisht, the learned Additional Chief Standing Counsel for the State, has raised the following counter-contentions before this Court :-
Firstly, in the order dated 17.11.2006, issued by the Principal Secretary, Uttaranchal Administration, it was clearly mentioned that the Inspector General of Prisons would either be the Secretary, Home, or IAS officers, or of equivalent posts. Similarly, Additional Inspector General of Prisons would be from the post of Additional Secretary, Home/Joint Secretary, Home, or from PCS Cadre. In fact, even presently, the post of the Inspector General of Prisons is occupied by a person belonging to the IPS cadre. Therefore, the appointment of police personnel to the post of Senior Superintendent/Superintendent of Jail can certainly be made from Police Officers.
Secondly, considering the fact that presently there are two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail, which are lying vacant, considering the fact that direct recruitment to these posts would require some time, considering the fact that there is no one in the post of Jailors, who has completed five years of required service for being promoted to the post of Senior Superintendent/Superintendent of Jail, the State is justified in making Police Officers incharge of these two posts on a temporary basis. Therefore, the learned counsel has supported the impugned orders.”
As a corollary, the Bench then brings out in para 5 that, “In rejoinder, Ms. Kamini Jaiswal, the learned Senior Counsel for the petitioner, has pleaded that the letter dated 17.11.2006 does not support the case of the State. For, while the post of Inspector General of Prisons and Additional Inspector General of Prisons may be permitted to be filled up from IPS Officers, the post of Senior Superintendent/Superintendent of Jail is covered by the Rules, 1982. Once the Rules, 1982 have been promulgated, they cannot be diluted by a mere letter issued by the Principal Secretary. In fact, the appointment to the post of Senior Superintendent/Superintendent of Jail has to be strictly in accordance with the Rules, 1982.”
Needless to say, the Bench then after hearing the learned counsel and perusing the impugned orders as stated in para 6, it is then brought out in para 7 that, “Prisons are as ancient as human civilization. Initially, prisons were created as detention centres for detaining those who were threat to the political power. According to the Bhagavata Purana, an ancient text on the life of Lord Krishna, his parents, Devaki and Vasudeva, were imprisoned by Kansa, the King of Mathura. However, over the centuries, prisons were constructed for the purpose of punishing those, who violate the law. Soon the purpose of prisons was changed from detention to punishment. In ancient Athens, Socrates was imprisoned for punishing him for having corrupted the minds of the youth. Long imprisonment sentences catered to the retributory and deterrent theories of punishment.”
Quite alarmingly, the Bench then observes in para 11 that, “In 1835, Lord Macaulay presented a note to the Legislative Council in India as he was shocked by the horrifying and inhumane conditions prevalent in the Indian jails. The next year, on 02.01.1836, Lord William Bentick constituted a “Prison Discipline Committee”. The report of this Committee, submitted to Lord Auckland in 1838, revealed the rampant corruption, the laxity in discipline, and the abuse of men and women, who were imprisoned. However, surprisingly, the Committee rejected the thought of reforming the criminals.”
Going ahead, the Bench then further observes in para 12 that, “Over the years, the “Conference of Experts” held in 1877, and the “Fourth Jail Commission” in 1888, recommended that there should be a uniformity in all the Jails functioning in British India. Since Indians were seen as subjects and not as citizens, since the Britishers saw themselves as the Ruler, they recommended rigorous prison sentences, and even punishments within the confines of the Jails, such as whipping and solitary confinement, and keeping the prisoners in gunny clothing. The outcome of the recommendations of the “Conference of Experts” and the “Fourth Jail Commission” was the enactment of the “Prisons Act of 1894”. The Prisons Act, 1894 continues to govern most of the Jails even today.”
Needless to say, it is quite baffling that why no new Prisons Act has been passed even after 127 years till now? Why our lawmakers care a damn for the prisons? Why they never acted till now to meet the conditions of prisons to the present circumstances and now that of 1894 or 1895?
In this context, it has to be mentioned that the Bench then elucidates in para 13 stating that, “The “All India Jail Committee (1919-1920)” for the first time recommended the reformation and rehabilitation of offenders as one of the objectives of the prison administration. The Committee spoke about the adequate training of the prison staff, and about the separation of executive/custodial, ministerial and technical staff in prison service. The Committee believed that a different sort of training needs to be provided to the prison staff, than the training being provided to the police staff.”
Furthermore, the Bench then mentions in para 14 that, “After independence, a number of Committees have been constituted, beginning with the Jail recommendations made by Dr. W.C. Reckless, a U.N. Expert on Correctional Work. While submitting his report on “Jail Administration in India”, he advocated the reformative theory of punishment; he emphasised on specialized training of correctional personnel; he stressed on the need for a cadre of properly trained personnel staff.”
While underscoring the dire need to ameliorate the condition of prisons and prisoners, the Bench then states in para 15 that, “In 1972, the Ministry of Home Affairs, Government of India, appointed a “Working Group on Prisons”. In its report submitted in 1973, the Committee again emphasised the need for proper training of prison personnel. It also stressed that “prison administration should be treated as an integral part of the social defence components of national planning process”. Thus, the very basis for prison administration was to protect, reform and rehabilitate the prison population. Moreover, the prison population is not a population to be neglected. But it is a population, which needs to be encouraged to be productive. Therefore, skill upgradation is a sine qua non.”
While continuing in a similar vein, the Bench then observes in para 16 that, “In 1980, the Government of India constituted an “All India Committee on Jail Reforms” under the chairmanship of Hon’ble Mr. Justice A. N. Mulla. The Mulla Committee submitted 658 recommendations. According to the Committee, prisons in the country shall endeavour to reform and reassimilate offenders in the social milieu by giving them appropriate correctional treatment. One of the most important recommendations is that “prison services shall be developed as a professional career service. The State shall endeavour to develop a well-organized prison cadre based on appropriate job requirements, sound training and proper promotional avenues. The efficient functioning of prisons depends, undoubtedly, upon the personal qualities, educational qualifications, professional competence and character of prison personnel. The status, emoluments and other service conditions of prison personnel should commensurate with their job requirements and responsibilities. An All-India Service, namely the ‘Indian Prisons and Correctional Service’ shall be constituted to induct better qualified and talented persons at higher echelons. Proper training of prison personnel shall be developed at the ‘national, regional and State levels’.”
Quite significantly, the Bench then lays bare in para 17 that, “On 17.07.2009, the Ministry of Home Affairs, Government of India had written to the Principal Secretary (Prison)/Secretary (Home) (In-charge of Prisons) – All State Governments / UTs DGs/ IGs incharge of prisons- All State Governments / UTs, wherein it had emphasised the large number of judgments delivered by the Hon’ble Supreme Court with regard to the prison administration and the jail system prevalent in India. It had further made certain recommendations as under:-
(i) Establishing well equipped training infrastructure in the State, with adequate skilled and well qualified instructional staff, to cater to the normal needs of basic and in-service training for the prison staff in different discipline.
(ii) Creating adequate posts for prison staff as per norms in different categories, commensurate with operational needs of safe custody, reformation, rehabilitation, health care, legal assistance etc.
(iii) Filling up all the vacancies, presently running up to 17.58% (in 2006) within time bound frame and ensure proper cadre management through timely trainings, promotions, recruitments etc.”
While dwelling on the yeoman role of the Apex Court, the Bench then puts forth in para 18 that, “Over the decades, the Hon’ble Supreme Court has rushed to the rescue of the prisoners. The Apex Court has not only given the protection of Article 21 of the Constitution of India to the prisoners, but has also emphasised on the penological philosophy of reformation, and rehabilitation of the prisoners. It has, thus, stressed on the need for having a well-trained prison staff, who would cater to the needs of the prisoners on a full-time basis.”
Quite pertinently, the Bench then observes in para 19 that, “Recently, in the case of Inhuman Conditions In 1382 Prisons, In re [(2018) 18 SCC 777], keeping in mind the dire necessity of reforming in prison administration, and the prison management, the Hon’ble Supreme Court has constituted a Supreme Court Committee on “Prison Reforms” consisting of : (i) Hon’ble Mr Justice Amitava Roy, a former Judge of the Supreme Court as its Chairperson, (ii) Inspector General of Police, Bureau of Police Research and Development as its Member, and (iii) Director General (Prisons) Tihar Jail, New Delhi as its Member.
The Committee has made the following recommendations with regard to the staffing patterns in the jails:
“RECRUITMENT OF STAFF
The Hon’ble Court may issue following directions in this regard:-
(a) All State Governments will hold special recruitment drives to fill up the existing vacancies in different ranks with the following timelines.
(i) In case of regular recruitment against permanent vacancies, the recruitment process should start within three months and should be completed within one year in the maximum.
(ii) All promotional vacancies should be filled up within six months”.”
Of immense significance is what is then stated in para 20 that, “At the International level, the United Nations has issued the “Nelson Mandela Rules”, which deal with the “Standard Minimum Rules for the Treatment of Prisoners”.
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As mentioned hereinabove, these Rules prescribe the accepted good principles, and practices in the treatment of prisoners and prison management. Rules 74 to 82 deal with “Institutional Personnel”.”
On these Rules, it is first and foremost stated in para 21 that, “Rule 74 is as under :-
1. The prison administration shall provide for the careful selection of every grade of the personnel, since it is on their integrity, humanity, professional capacity and personal suitability for the work that the proper administration of prisons depends.
2. The prison administration shall constantly seek to awaken and maintain in the minds both of the personnel and of the public the conviction that this work is a social service of great importance, and to this end all appropriate means of informing the public should be used.
3. To secure the foregoing ends, personnel shall be appointed on a full-time basis as professional prison staff and have civil service status with security of tenure subject only to good conduct, efficiency and physical fitness. Salaries shall be adequate to attract and retain suitable men and women; employment benefits and conditions of service shall be favourable in view of the exacting nature of the work.””
As we see, the Bench then states in para 22 that, “Rule 75 is as under :-
1. All prison staff shall possess an adequate standard of education and shall be given the ability and means to carry out their duties in a professional manner.
2. Before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences. Only those candidates who successfully pass the theoretical and practical tests at the end of such training shall be allowed to enter the prison service.
3. The prison administration shall ensure the continuous provision of in service training courses with a view to maintaining and improving the knowledge and professional capacity of its personnel, after entering on duty and during their career.””
As we progress, we see that the Bench then observes in para 23 that, “Rule 76 is as under :-
1. Training referred to in paragraph 2 of rule 75 shall include, at a minimum, training on:
(a) Relevant national legislation, regulations and policies, as well as applicable international and regional instruments, the provisions of which must guide the work and interactions of prison staff with inmates;
(b) Rights and duties of prison staff in the exercise of their functions, including respecting the human dignity of all prisoners and the prohibition of certain conduct, in particular torture and other cruel, inhuman or degrading treatment or punishment;
(c) Security and safety, including the concept of dynamic security, the use of force and instruments of restraint, and the management of violent offenders, with due consideration of preventive and defusing techniques, such as negotiation and mediation;
(d) First aid, the psychosocial needs of prisoners and the corresponding dynamics in prison settings, as well as social care and assistance, including early detection of mental health issues.
2. Prison staff who are in charge of working with certain categories of prisoners, or who are assigned other specialized functions, shall receive training that has a corresponding focus.””
Not stopping, the Bench then adds in para 24 that, “Rule 79 is as under :-
1. The prison director should be adequately qualified for his or her task by character, administrative ability, suitable training and experience.
2. The prison director shall devote his or her entire working time to official duties and shall not be appointed on a part-time basis. He or she shall reside on the premises of the prison or in its immediate vicinity.
3. When two or more prisons are under the authority of one director, he or she shall visit each of them at frequent intervals. A responsible resident official shall be in charge of each of these prisons.””
Be it noted, the Bench then hastens to add in para 25 that, “Since India is a member of the United Nations, these Rules are equally binding on the country. Therefore, neither these Rules, nor the recommendations of the various Committees, nor the letter issued by the Ministry of Home Affairs, Government of India dated 17.07.2009, can possibly be ignored by the State.”
What’s more, the Bench then observes in para 26 that, “All these recommendations, and Rules are in conformity with the great transformation, which has occurred in the theory of punishment : from the theory of “Retribution And Deterrence”, we have come to the age of “Reformation and Rehabilitation of Prisoners”. These Committee recommendation and the Nelson Rules emphasize the need for carefully selecting the prison personnel, for providing rigorous training, both prior to their joining the service, and subsequent thereto, of the appointment being a full-time, regular appointment. It is only when these factors are inculcated in the prison administration that the prison system succeeds in protecting, reforming and rehabilitating the prisoners. Otherwise, it is a self-defeating proposition.”
Quite remarkably, the Bench then waxes eloquent to hold in para 27 that, “Needless to say, the purpose of the Police is not to reform, or to rehabilitate, but to prevent the occurrence of crime, and to punish the criminals. Therefore, the very training of a police personnel is carried out with a different purpose in mind, and with different goals prescribed by law. Thus, there is a vast difference in the philosophy that permeates the police administration, and the jail administration. Hence, even their training and the psychology of the police personnel and prison personnel are poles apart.”
No less remarkable is what is then divulged in para 28 that, “Keeping the differences in two systems, the Rules, 1982 clearly provide that the post of Superintendent, District Jail should necessarily has to be filled up in accordance with the Rules, 1982. Rule 5(6) of the Rules, 1982 is as under :-
“5(6) Superintendents, District Jails. – (i) 50 per cent of posts in the cadre by direct recruitment through the Commission.
(ii) 50 per cent of post in the cadre by promotion through the Commission from amongst regularly appointed Deputy Superintendents/Jailors with a minimum of 5 years services as Deputy Superintendents of Jailors or both.””
In the same vein, the Bench then points out in para 29 that, “Rule 14 of the Rules, 1982 is as under :-
“14. Determination of vacancies.- The appointing authority shall determine and intimate to the Commission the number of vacancies on the posts of Superintendents, District Jails to be filled during the year of recruitment as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under Rule 6.””
Going forward, the Bench then envisages in para 30 that, “Rule 15 of the Rules, 1982 is as under :-
“15. Procedure for direct recruitment.- (1) Application for permission to appear in the competitive examination for direct recruitment shall be invited by the Commission in the prescribed form which may be obtained from the Secretary to the Commission on payment, if any.
(2) No candidate shall be admitted to the examination unless he holds a certificate of admission, issued by the Commission.
(3) After the results of the written examination have been received and tabulated the Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes, and others under Rule 6, summon for interview such number of candidates as, on the result of the written examination, have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination.
(4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of-marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidate obtain equal marks in the aggregate, the name of the candidate obtaining higher marks in the written examination shall be placed higher in the list. The number of names in the list shall be larger but not larger by more than 25 percent of the number of vacancies. The Commission shall forward the list to the appointing authority.
Note. – The syllabus and rules for the competitive examination shall be such as may be prescribed by the Commission from time to time.”
Also, still ahead, the Bench then states in para 31 that, “Rule 16 of the Rules, 1982 is as under :- “16. Procedure for recruitment by promotion to the post of Superintendent, District Jail.- Recruitment by promotion to the post of Superintendent of District Jail shall be made on the basis of seniority subject to the rejection of the unfit in accordance with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970 as amended from time to time.””
Most significantly, the Bench then minces no words to state it upfront in para 32 that, “A bare perusal of these Rules of 1982 clearly reveals that the post of Superintendent of Jail necessarily has to be filled up either by direct recruitment (fifty percent), or by promotion (fifty percent). The Rules do not permit an ad-hoc appointment from any other service, much less the police service. Therefore, the post can be filled up either directly from candidates from the open market, or from the post of Deputy Superintendents/Jailors having a work experience of minimum of five years. Hence, the appointment of the police personnel, by the impugned orders, is clearly illegal.”
Equally significant is what is then pointed out in para 33 that, “Although the learned counsel for the State has tried to support the impugned orders ostensibly on the ground that the Inspector General of Prisons and the Additional Inspector General of Prisons can be appointed from the IPS cadre, the said argument is clearly untenable. For, once the Rules, 1982, which deal with Group A and B services, clearly provide a procedure for determination of vacancy, and selection and promotion for filling up the post, the said Rules cannot be deviated from. After all, it is a settled position of law that once a procedure has been established by law, it cannot be circumvented from. Therefore, merely because the post of Inspector General of Prisons, and Additional Inspector General of Prisons can be filled up from persons belonging to the IPS cadre, it does not empower the State to fill up the post of the lower echelons by posting police personnel on the post of Senior Superintendent/Superintendent of Jail.”
As a consequence, the Bench then holds in para 34 that, “For the reasons stated above, the impugned order dated 12.02.2021 passed by the Secretary, Department of Home, respondent no. 2, and the consequential order dated 12.02.2021, passed by the Inspector General of Prisons, respondent no. 3, are hereby set-aside. The State is directed to immediately fill up the posts of Senior Superintendent and Superintendent of Jail either through direct recruitment, or through promotion. Since the Rules permit ad-hoc promotion as a temporary measure, even ad-hoc promotions may be granted by the State till regular promotions are made. The said exercise shall be carried out as expeditiously as possible and preferably within one month from the date of receiving the certified copy of this judgment.” Finally, it is then held in para 35 that, “The Writ Petition is, hereby, allowed.”
No doubt, words cannot be adequate to describe the brilliance with which this judgment is written which is par excellence and substantiating them with relevant Rules followed in India and simultaneously backing them up with rules at international level as for instance the Nelson Mandela Rules issued by UN already dwelt in detail above dealing with the standard minimum rules for the treatment of prisoners. It is now abundantly and manifestly clear from the aforesaid discussion that we had on the ruling by a two Judge Bench of the Uttarakhand High Court comprising of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma that police personnel cannot be appointed as jail superintendents.
What and why of reservation
The current reservation system in India is vertical for SC, ST, OBC, and EWS, but horizontal for women. In the country, all reservation systems operate together, and reservation in itself means that everything must be fixed. Many Indians claim that the Indian judiciary is biased because there are no judges from the lower castes in the Supreme Court, despite the fact that a number of religious minorities are represented in the top court, such as Parsis and Muslims, but no one from the SC and ST groups.
Reservation is an affirmative action programme in India that ensures traditionally marginalized groups have representation in education, jobs, and politics. It enables the Indian government to set reserved quotas or seats based on provisions in the Indian Constitution, which lower the qualifications required in examinations, work openings, and other situations for socially and economically backward people. In India, reservation refers to the practice of denying certain groups of people access to seats in educational institutions, government employment, and even legislatures. Affirmative action is another name for it, and the reservation can be seen as constructive discrimination. Reservation is a government policy in India, and it is backed by the Indian constitution
WHY IS THE DEBATE SO ACUTE?
RESOURCES AT STAKE: Reservations favor schooling, housing, and legislative positions, among other things. Where a country’s resources are limited, poverty and malnutrition are common, and unemployment is high, there is bound to be conflict when a policy on resource allocation is implemented. Resources are linked to humans’ basic needs, and when they have to make compromises for them, they will work in any circumstances to reap the benefits.
RADICALLY OPPOSING VIEWS: If you prefer reservations, it means you’ve been taught about the benefits of reservations since you were born as well as the fact that this is a facility that people want to take away from us. They have ruled over us for thousands of years, and now that we have a chance, they want to take it away from us. As a result, the entire community is on high alert, fearful that if anyone opposes, they will strike without even learning the reason for the protest. People who did not receive a reservation, on the other hand, believe that those who did receive a reservation are adequate and are taking our children’s place. Apart from that, they believe there is a massive plot against our culture, caste, and faith
HOW TO DEVELOP AN APPROPRIATE UNDERSTANDING ON THIS ISSUE
It’s best to think about something as neutral when trying to comprehend it. All of the disagreements in this universe arise because we are aware of our advantages and disadvantages. If we consider ourselves to be impartial, we will note that we have benefited illegally from other situations.
IS RESERVATION IS AGAINST EQUALITY?
The NEGATIVE CONCEPT OF EQUILITY; states that there will be no discrimination and that all will be treated fairly. A fair law for all, on the other hand, would not result in an equal outcome since those who have already benefited from the rule gain additional benefits, while those in lower social groups do not have the ability to change their situation.
POSITIVE CONCEPT OF EQUALITY; A positive concept of equality does not imply that rules should be made equal for all; rather, it implies that the distance between poor class people Equality entails taking steps in the direction of disadvantaged groups in order to help them uplift themselves.
POSITIVE DISCRIMINATION IS A CONSTITUTIONAL PROVISION
Article 17: Abolition of “untouchability” and criminalization of its practice in any form. Article 45: Promotion of education and economic interests. Article 330 and 332: Seats in the Lok Sabha and State Assemblies are reserved. Article 16(4): Article 16 guarantees equal opportunity for all citizens in matters relating to employment or appointment to any state office. However, “Nothing in this Article shall preclude the state from making any provision for the reservation of appointment or posts in favor of any backward class of citizens which, in the opinion of the state, is not adequately represented.” (Specific reservation rules for members of Scheduled Castes and Schedule Tribes. In Mohan Kumar Singhania v. Union of India, the Supreme Court explained that Article 16(4) is an enabling provision that gives the state discretion to make any provision or reservation for any backward class of people that, in the state’s view, is not adequately represented in the service of the state. For claiming reservation, Article 16(4) imposes no constitutional obligation or confers any Fundamental Right on anyone. The state government calculates the total population of the backwards class and their inclusion in state facilities, then makes reservations and offers the percentage of reservations. Trilok Nath v. State of J&K
held that state decisions must be justiciable and can be questioned if they are based on irrelevant factors. “Backwardness is not a static phenomenon,” the Court said in Jagdish Negi v. State of Uttar Pradesh. It can’t go on forever, and the government has the right to revisit the situation at any time.”
EXAMPLES OF SOCIAL DISCRIMINATION TRAVANCORE KINGDOM; Travancore is an example of the degree to which castes can be treated unfairly when travelling. You could be shocked to learn that in Travancore, a statute was repealed entirely in 1924. And the legislation stated that women from the lower social classes had no right to cover their breasts in public areas, and if they do, they must pay a breast tax. NA DA R CA S T E O F TAMILNADU: The controversy occurs over whether or not women of the backwards class have the right to wear fabric to cover their bodies, and the tension of this dispute skyrockets in 1859 when two women are hanged to death for wearing cloth on their upper bodies. Following this event, the king orders that the women of this group can cover their upper body parts.
Dr B.R. AMBEDIKAR: Dr Ambedkar has done more for Indian women than anyone else. He was the last and 14th child of his family; his father, belonging to the Scheduled Caste community, was a soldier in the British army. As his father was a soldier, Ambedkar got the chance to study in a school. He has written in his biography that he “was the only student in that school who belonged to the Scheduled Caste community, and that when the school’s peon was absent, he was denied water to drink”.
When he passed fourth grade, the entire community rejoiced because for the first time in that society, a small class part had passed. After that, this child had completed a double doctorate from England.
MEANS OF SOCIAL JUSTICE: AFFIRMATIVE ACTION
When a welfare state exists, some action can be taken for the poor group of the main section that gives them a special benefit for all policies. This is known as affirmative action. HORIZONTAL RESERVATION; Women and physically handicapped people can currently take advantage of horizontal reservation. VERTICAL RESERVATION: Vertical reservation occurs when an individual jumps from his reserved seat to a general seat based on his qualifications. The current reservation system in our country is vertical for SC, ST, OBC, and EWS, but horizontal for women. In our country, all reservation systems operate together, and reservation in itself means that everything must be fixed. Many Indians claim that the Indian judiciary is biased because there are no judges from the lower castes in the Supreme Court, despite the fact that a number of religious minorities are represented in the Supreme Court, such as Parses and Muslims, but no people from the SC and ST groups.
RESERVATION AND AFFIRMATIVE ACTION IN INDIA
Articles 332- 334 of the Indian constitution address reserved seats in the Lok Sabha and Rajya Sabha, respectively, and article 243 addresses reserved seats in Panchayati Raj. Article 16 deals with racial discrimination in government jobs. Whenever there is a reservation in every school or college, it is made under Article 15 or, whether it is a minority institution, under Article 30. Extra hostels and fellowships must be given for students from low-income families. There are many laws that protect the rights of SC/ST people and women. There are numerous commissions, such as the SC/ST Commission and the OBC Commission, whose aim is to investigate the growth of their respective communities.
Society develops beyond any of these things: you must combine the two or you will not be long enough. The physical need for both merit and social justification in balance We will not be able to progress as a nation unless we have merit. Merit should be followed by merit, but it is also important to follow the mechanism of social justice, so that those who are left behind in the country are those who are left behind in the country, so who are you going to develop together in any way? As a result, it is important to ensure that the balance is accompanied by fairness, justice, and justice. Our reservation system is working well, but it could be better: if reservations satisfy people who need to meet them, I’m not angry at the fact that the reservation is not so angry, so I need to speak with the creamy layer. As a result, the reservationists must discuss the creamy layer. Can leave the reservation facility so that the reservation reaches the individual who is actually needed.
Articles 332-334 of the Constitution address reserved seats in the Lok Sabha and Rajya Sabha, respectively, and article 243 addresses reserved seats in Panchayati Raj. Article 16 deals with racial discrimination in government jobs. Whenever there is a reservation in every school or college, it is made under Article 15 or, whether it is a minority institution, under Article 30. Extra hostels and fellowships must be given for students from low-income families. There are many laws that protect the rights of SC/ST people and women. There are numerous commissions, such as the SC/ST Commission and the OBC Commission, whose aim is to investigate the growth of their respective communities.
Examining the various shades of women in crime: Pink-collar criminality
A study had found that men tend to have higher levels of expertise and legitimate power than women do, specifically in the United States. Even though it has been more than two decades since this study was conducted, there are several factors proving that this phenomenon still remains the force. One of the reasons for this would be that people tend to perceive men as more authoritative and more in control than they perceive women.
White collar crimes were officially discussed by Edwin H Sutherland, who pointed out that besides the traditional crimes such as assault, robbery, murder, rape and other violent acts, there were certain anti-social activities that were carried out by people belonging to the upper socio-economic strata. They usually carried on these activities during the course of their occupation or business. In the earlier days, these were considered as an usual part of business tactics, carried out by shrewd professionals in order to succeed in their profession or business. Hence, any complaints against such activities usually went unpunished.
Sutherland further categorized crimes into “White Collar Crimes” and “Blue Collar Crimes”. He deemed “White Collar Crimes” as those committed by an individual who belongs to the upper economic class and who violates the terms and conditions of their occupation. A white collar criminal generally violated the criminal law while conducting their professional duties. It includes activities like misrepresentation through fraudulent advertisements, infringement of patents, copyrights and trademarks, etc.
“Blue Collar Crimes” referred to the violent acts that were carried out by people belonging to the lower socio-economic classes, such as robbery, dacoity, theft, murder, etc.
Now, white collar crimes are of a special kind and belong to a special category because they tend to be more harmful to the society and cause greater financial loss than blue collar crimes do. Apart from that, the society used to lack effective enforcement of criminal laws against people who committed such crimes. The people involved in such crimes were also usually influential people, and were able to resist the enforcement of law against them, by means such as bribery.
An important aspect of white-collar crimes that we need to focus upon would be the way Sutherland had mentioned “respectability” and “high status” as the factors that were necessary for a crime committed by a person to be considered as a white collar crime. Back in 1941, only two decades after universal suffrage was granted to women in the US, the status of women in the country was not at an equal footing with men. Unfortunately, the trend has continued till date, wherein we see gender differences regarding opportunities in all walks of life.
On the other hand, we have seen the gendered notion of crime acting like a bane for men as well. The understanding of the feminine qualities to be one where faultlessness and evil deeds is seen to be rare and almost masculine not only ends up wrongly profiling a number of unreported fraudsters, but also lets go of female corporate criminals scot-free. The gendered nature of viewing fraudsters is stereotyped in a way that views the crime as the ‘con man’ preying on the ‘gullible little old lady’ (Croall, 2003).
Even if these female corporate criminals are found to be guilty, they might be dealt with outside of court, which makes it seem like their offences are less serious (Croall, 2003).
In fact, in popular press, white-collar crimes committed by women are termed as “Pink-Collar Crimes,” and female white-collar criminals are called Gucci-criminals or Louis Vuitto-criminals.
A Norwegian study of 255 convicts presented in newspaper articles found that only 20 were female. However, the researchers Gottschalk and Glasø found it difficult to believe that such an egalitarian society would have such a huge discrepancy between the two sexes when it came to white-collar crimes being committed by them (Gottschalk and Glasø, 2013).
A research conducted by the Financial Services Authority in the UK in 2001 had found that men were willing to take more financial risks as compared to women. This suggests that women generally tend to think about the consequences of their actions more thoroughly and are less impulsive than men (Gottschalk and Glasø, 2013).
A study conducted in 2013 involving 83 corporate frauds showed that out of the four hundred thirty-six defendants, only thirty seven were female (Steffensmeier, Schwartz, and Rochea, 2013). It was also found that none of the groups of conspirators consisted of all female members, and they lacked an initiative to form their own groups.
This study is extremely important in the understanding of this essay, since it revealed a number of characteristics that were associated with white collar crimes and the involvement of women in it.
For starters, it revealed that female conspirators received a lesser amount of personal gain or profit as compared to their male counterparts, irrespective of their role in the crime. In fact, a few females did not even get any financial benefit out of their involvement, and instead did it for the job security. Some of these women were at equal footing in the professional sphere with their male counterparts.
Only a few women had major roles to play in the crime, and most of the times, they shared that position with a spouse or someone else with whom they had a close relationship (Gottschalk and Glasø, 2013).
Two main factors that had contributed to the involvement of females in the crimes were relationships and utility. Either they had a close personal relationship with one or more of the men involved in the crimes, or held a strategic position that allowed them access to and knowledge of specific confidential information.
Now, we cannot directly assume that women are more ethical than men in any way. Involvement in white collar crimes is affected by various factors other than just one’s gender.
A study had found that men tend to have higher levels of expertise and legitimate power than women do, specifically in the United States (Carli, 1999). Even though it has been more than two decades since this study was conducted, there are several factors proving that this factor still remains the same. One of the grave reasons for this phenomenon would be that people tend to perceive men as more authoritative and more in control than they perceive women. In fact, one of the main reasons why some women had conducted these white collar crimes was so that they could attain the “masculine” position and assert themselves as someone in control. This ensured their job security. Lombroso’s Masculinization theory supports this specific claim by stating that female crime is a result of the masculinization of female behaviour and that female criminals are biologically, psychologically and socially more “masculine” than non-criminal females (Islam, Banarjee, & Khatun, 2014).
A study was conducted in 1953 where incarcerated male embezzlers were questioned regarding their motive to commit these crimes. The most common reply was that they were borrowing money with the intention of repaying the employers. They also mentioned personal financial problems such as gambling debts.
On the other hand, another similar study conducted in the year 1981 using a sample of females incarcerated for financial crimes showed that they mostly had necessities relating to family members, such as medical bills that needed to be paid (Holtfreter, 2015).
This again highlights the issue that men may involve in financial crimes for reasons that can be deemed to be of a less serio0us nature than women who take part in these crimes.
Expanding on the issue of the seriousness of crimes committed by men and women, a study in which five thousand four hundred and fourty one fraudulent cases were investigated, from ninety three different nations, between the years 2002 and 2011, it was found that women were three rimes more likely to involve in white collar crimes that involved lesser financial damages. This does not necessarily point towards any socio-psychological differences between the sexes, but show that even to this day, men tend to hold more senior positions and tend to have greater opportunities at causing higher damage than women do.
One of the most burning issues at this point of time would be the way a lot of women’s involvement in white collar crimes are overlooked. In most cases, businessmen may register their assets under their spouse’s name to avoid legal consequences of the crime or conduct tax fraud. Since a spouse cannot be compelled to give evidence against their partner, this allows a lot of financial criminals to go scot free.
A 2019 survey conducted by the Indian National Bar Association (INBA) was rolled out to law firms, media houses and corporate houses in the form of objective questions and answers. It was found that 57% people believed that both males and females committed white collar crimes equally. However, a disparity was found wherein 42% people believed that only men committed white-collar crimes, while only a fleeting 1% believed that primarily women were involved in the same. This shows the disproportionate belief that men are involved in white-collar crimes at a higher rate than women, even in the twenty first century.
A lot of white-collar crimes committed by family businesses and small and medium sized enterprises are very commonly overlooked. A handful of women in these fields do tend to achieve positions of power and authority and achieve autonomy (Gottschalk and Glasø, 2013).
Sometimes, the registered owners’ businesses are actually fake fronts for the real work that is done by them. This may also hide the identity of a lot of female white-collar criminals (Gottschalk and Glasø, 2013).
During the mid-1900s surge in female independence, it was theorized that the increased socio-economic freedom being allowed to women is heightening the crime rates among them. Women had followed men into the workplace, and now they were following them into prisons. Irrespective of their gender, white collar criminals should be held equally responsible, since they cause a greater amount of harm to the society at large and they should face serious consequences for the same.
These issues can be looked into by making changes in the policies that deal with them. The government should indulge more criminologists and take their advice regarding the specific policy changes that can help make this situation better. Gendered policies in understanding and managing white-collar crimes can go a long way in reducing the sufferings of a large number of people.
Croall, H. (2003). ‘Men’s business’? Some gender questions about while-collar crime. Centre for Crime and Justice Studies no. 53 Autumn.
Gottschalk, P., & Glasø, L. (2013). Gender in White-Collar Crime: An Empirical Study of Pink-Collar Criminals. International Letters of Social and Humanistic Sciences, 14.
Islam, M. J., Banarjee, S., & Khatun, N. (2014). Theories of Female Criminality: A criminological analysis. International Journal of Criminology and Sociological Theory, Vol. 7, No. 1, 8.
Malerba, A. (2021). Gender Difference in White-Collar Crime and the Importance of Gender Diversity. Academic Event Festival, Sacred Heart University, 16.
Singh, K., Kadan, V., Sharma, B., & Gandhi, B. (2019). White Collar Crime Survey. Indian National Bar Association (INBA).
A lot of white-collar crimes committed by family businesses and small and medium-sized enterprises are very commonly overlooked. A handful of women in these fields do tend to achieve positions of power and authority and achieve autonomy. Sometimes, the registered owners’ businesses are actually fake fronts for the real work that is done by them. This may also hide the identity of a lot of female white-collar criminals.
Nortel Network’s case: Need to further amend Section 11 of the Arbitration Act
Section 11 of the Arbitration Act is an important provision which provides for intervention of the court before commencement of the arbitration proceedings. It empowers the court to examine the existence of an arbitration agreement while deciding the application for appointment of an arbitrator.
The Arbitration and Conciliation Act, 1996 (“the Arbitration Act”) provides for minimal judicial intervention. Perusal of various provisions like Sections 8, 9, 13, 16, 34, etc. would show that it provides a time period within which certain things are to be done. In other words, it deals with what can be called as the ‘effect doctrine’. For instance, when, despite the fact that a valid arbitration agreement exists between parties and a party files a civil suit for recovery of an amount, the other party/Defendant can move an application under Section 8 of the Arbitration Act before filing its first statement on defence and seek reference to arbitration. Therefore, the effect of such an application filed under the said provision is to refer the parties to arbitration if existence of arbitration agreement is not dispute. Therefore, the purpose of providing a definite time period is to kick start the arbitration proceedings at the earliest.
Though, the aforementioned provisions provided for a definite time period but, Section 11 of the Arbitration Act, which deals with appointment of arbitrator by court, does not mention any time period within which a party has to file an application for getting an arbitrator appointed. It only mentions that after sending a notice invoking arbitration under Section 21 thereof, a party has to wait for 30 days and in case, of refusal to nominate an arbitrator, a party can file an application before a court. Therefore, the issue is what is the time period within which a party is required to file an application before a court for appointing an arbitrator once the other party has refused to appoint an arbitrator or has not responded to the notice invoking arbitration and 30 days’ time period is over.
SCOPE OF SECTION 11:
Section 11 of the Arbitration Act is an important provision which provides for intervention of the Court before commencement of the arbitration proceedings. It empowers the Court to examine the existence of an arbitration agreement while deciding the application for appointment of an arbitrator.
After implementation of the Arbitration Act, an issue had arisen as to what is the nature of the power exercised by the Chief Justice or his designate under Section 11 – whether it is an administrative order or a judicial order, and also, what enquiry does the Court has to conduct before proceeding to appoint an arbitrator. Initially, the Supreme Court in Konkan Railway Corpn. Ltd. v. Mehul Construction Co., AIR 2000 SC 2821 had held that the powers of the Chief Justice under Section 11(6) of the Act of 1996 are administrative in nature and that the Chief Justice or his designate does not act as a judicial authority while appointing an arbitrator. The same view was later reiterated in Konkan Railway Corpn. Ltd. v. Rani Construction (P) Ltd., AIR 2002 SC 778. However, in the year 2005, the Constitution Bench of the Supreme Court in SBP and Co. v. Patel Engg. Ltd., AIR 2006 SC 450 (7J) over-ruled those judgments and specifically held that the order passed by the Chief Justice is not administrative but judicial in nature and hence, the same is subject to appeal under Article 136 of the Constitution of India. This judgment was, thereafter, further clarified in National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., AIR 2009 SC 170 wherein, the Court listed out certain issues which can be considered in an application filed under Section 11 that is, (i) issues which the Chief Justice or his designate is bound to decide; (ii) issues which he can also decide, that is, issues which he may choose to decide; and (iii) issues which should be left to the Arbitral Tribunal to decide.
AMENDMENT MADE TO SECTION 11 & INSERTION OF SECTION 11(6-A)
As a result of these judgments, the door was wide open for the Chief Justice or his designate to decide a large number of preliminary aspects which could otherwise have been left to be decided by the arbitrator under Section 16 of the Arbitration Act. This position was in sharp contrast to the judgment of the Supreme Court in Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd., AIR 2005 SC 3766, where (in the context of Section 45 of the Act of 1996), it had ruled in favour of looking at the issues/controversy only prima facie.
The above position continued till the amendment was brought on 23.10.2015 in the Arbitration Act. Vide the amendment, the words “the Chief Justice or any person or institution designated by him” wherever it occurred in Section 11 was substituted by “Supreme Court or as the case may be the High Court or any person or institution designated by such Court”. Further, Section 11(6-A) was inserted by which, the power of the Court was restricted only to see whether there exists an arbitration agreement. The amended provision in sub-section (7) of Section 11 provided that the order passed under Section 11(6) shall not be appealable and thus, finality is attached to the order passed under this section. Also, sub-section (8) was inserted in Section 11 which required the prospective arbitrator to make disclosure in terms of Section 12(1) of the Act of 1996. It is important to note that sub-section (13) was also inserted in Section 11 and it casts a statutory obligation on the Court to dispose of the application filed under this provision within a period of 60 (sixty) days from the date of service of notice on respondent. Hence, after the amendment, the Court is required to only see whether an arbitration agreement exists – nothing more, nothing less. Hence, by virtue these amendments, the judgments rendered in SBP & Co.’s case and Boghara Polyfab’s case were legislatively overruled.
NO CONCEPT OF ‘IMPLIED CONSENT’ IN APPOINTING ARBITRATOR
Further, the remedy under Section 11 of the Arbitration Act can be invoked only when the procedure prescribed under the arbitration agreement has not been complied with. For instance, if the other party upon receipt of the request to appoint an arbitrator as per the agreed procedure, does not appoint an arbitrator within 30 (thirty) days of receiving notice invoking arbitration, then a party can approach a Court by filing an application under Section 11 seeking appointment of arbitrator. There is no concept of ‘implied consent’ in appointing an arbitrator. Also, a right of the party to appoint an arbitrator does not cease immediately upon the expiry of 30 (thirty) days. It ceases or the party forfeits or waives its right to appoint an arbitrator only when the other party files an application under Section 11 before a Court. No appointment can thereafter be made by a party placing reliance on the arbitration agreement. Therefore, if a party appoints an arbitration after a period of 30 (thirty) days but, before the other party files an application under Section 11 before a Court, such appointment is valid.
NECESSITY OF FURTHER AMENDMENT IN SECTION 11
It is important to point out here that after the Insolvency and Bankruptcy Code 2016, it is the Arbitration Act which being amended very frequently by the Legislature. The Arbitration Act or the new Act was implemented to resolve issues which were being faced in the old Act that is, Arbitration Act, 1940. But, as can be seen, some problems still were left unresolved by the new Act. For instance, the Arbitration Act, 1940 did not provide a time period within which the arbitral proceedings were required to be concluded. Though, Arbitration Act, 1996 was implemented and it repealed the old Act however, the new Act also did not provide any time period to conclude arbitral proceedings. The time period to conclude arbitration was provided by Section 29-A, which was inserted by the 2015 Amendment. If the Legislature would have had the vision, it would have rectified this at the time of implementing the new Act and not by making amendment after almost 20 years.
Another instance is Section 11 of the Arbitration Act. Perusal of Section 11 would show that it does not mention any time period within which a party is supposed to file an application under Section 11 once a notice under Section 21 of the Act of 1996 has been received by the other party and no step has been taken to appoint an arbitrator within 30 days. This is in stark contrast to the other provisions like Sections 8, 9, 13, 16, 34, etc. of the Arbitration Act as well as the object and purpose of said Act.
The question, therefore, arises is what will be the maximum time period within which a party has to file an application under Section 11 after issuance of a notice under Section 21 of the Act of 1996? It is pertinent to mention that though, the provisions of the Limitation Act, 1963 (“Limitation Act”) are applicable to arbitration proceedings however, it also does not specify the time period within which an application seeking appointment of an arbitrator is to be filed before a Court. Also, there is a difference between the period of limitation for filing an application seeking appointment of an arbitrator and period of limitation applicable to the substantive claims made in the underlying contract. For recovery of any amount, the period of limitation is 3 years from the date when the right to sue accrues. Since, none of the Articles in the Schedule to the Limitation Act provides a time period for filing an application under Section 11, therefore, it would be covered by the residual provision Article 137 of the Limitation Act which provides a period of limitation of 3 years from the date when the right to apply accures. Therefore, what flows from the above is that an application under Section 11 can be filed within a period of 3 years from the date of refusal to appoint an arbitrator after receiving notice under Section 21 thereof or, on expiry of 30 days after issuance of notice under Section 21, whichever is earlier.
NORTEL NETWORK’S JUDGEMENT
Recently, the Supreme Court in Bharat Sanchar Nigam Ltd. v. Nortel Networks India Pvt. Ltd, [2021 SCC Online SC 207, C.A. No. 843-844 of 2021 judgment dated 10.03.2021] had the occasion to dwell into this issue. In this case, a contract was awarded by the Appellant to the Respondent for planning, engineering, supply, insulation, testing and commissioning of GSM based cellular mobile network in the southern region covering Kerala, Karnataka, Tamil Nadu, Andhra Pradesh circles and Chennai telephone district. Some disputes arose under the contract and the Appellant withheld an amount of Rs. 99 crores (approx.) of Respondent towards liquidated damages and other levies. Vide letter dated 13.05.2014, the Respondent raised a claim for payment of the said amounts and in response, vide letter dated 04.08.2014, the Appellant rejected the claim. After a period of 5 ½ years, the Respondent issued a notice invoking arbitration under Section 21 of the Arbitration Act and requested appointment of an arbitrator. The Appellant responded to this letter on 09.06.2020 and stated that the claims are ex facie time barred. Thereafter, Respondent filed an application under Section 11 and the High Court referred to the disputes to arbitration. Hence, the appeal was filed by the Appellant before the Supreme Court. The Supreme Court after taking note of Sections 8, 9, 13, 16, 34, etc. of the Act of 1996 and Article 137 of the Limitation Act observed that a period of 3 years for filing an application under Section 11 would run contrary to the scheme of the Arbitration Act. However, since, there was no express provision to regulate this, it thus relied upon Article 137 of the Limitation Act and held that the application filed by Respondent under Section 11 was within limitation but, at the same time, directed the Legislature to make amendment and prescribe a specific period of limitation within which a party may move the court for making an application for appointment of the arbitrator. Further, though, the Court held that the application filed under Section 11 was maintainable but, it also held that the claims of Respondent were ex facie time barred. Hence, it allowed the appeal and set aside the order of the High Court.
Hence, the recommendation made by the Supreme Court to make amendment to Section 11 will help in speedy commencement of arbitral proceedings as sub-section (13) already casts a statutory obligation on the Court to dispose of the application filed under this provision within a period of 60 days from the date of service of notice on Respondent. In my personal opinion, an application under Section 11 should be filed within a period of 60 days from (a) the date of refusal to appoint an arbitrator after receiving the notice under Section 21 or, (b) on expiry of 30 days statutory waiting period whichever is earlier. Further, a provision should also be made for condoning delay in filing the application beyond 60 days provided sufficient cause exist. Such period should not exceed a further time of 30 days.
It is important to point out here that after the Insolvency and Bankruptcy Code 2016, it is the Arbitration Act which being amended very frequently by the legislature. The new Act was implemented to resolve issues which were being faced in the Arbitration Act, 1940. But, as can be seen, some problems still were left unresolved by the new Act.
Pre-trial role of the police: Exhaustive or insufficient?
From the data and statistics collected from, United Nations Office on Drugs and Crime, latest available till 2013, says there are 138 police personnel per lakh of the population in India. This has been substantiated by the Indian Parliament in 2014, that there was shortage of 5.6 lakh police personnel against the sanctioned strength of 22.8 lakh, which clearly takes the figures to 25% vacancy. State police has 24% vacancies in January 2016, as the strength sanctioned is 181 police personnel per lakh people. These statistics serve for two crucial purposes, firstly in questioning the qualitative work function of the police, secondly in analysing the work function of the police, in all the domains. Our Police force, is legally regulated by Police Act, 1861 and Modern Police Act,2015, primarily for executing its functions. But there are certain duties and functions which police is bound to perform in the light of Cr.P.C, which is again in consonance to their primary source of regulation. In this paper, the author has tried to analyse the duties and role of police, primarily pertaining to the Judicial functions, which will also ensure the exhaustive analysis of the checks and control, which serves as the threshold for the police personnel in the exercise of their duty. This paper, is an attempt to link the work function of police, pertaining to the police acts and Cr.P.C by taking into account various factors like modernisation, training prospects, pre-trail functions in a coherent way.
DUTIES OF POLICE IN THE POLICE ACTS
“ Independent India must choose, whether we will have a people’s police or a ruler appointed police, or in other words whether the people should rule or the parties shall rule. The Constitution has laid down that the people should rule, so the police must also be the people’s police”
– Khosla Commission in 1968
Under our highest organic law of the land, police is kept under the domain to State list, so it is the duty of the state to provide efficient and coherent police force, for proper policing. All the state polices are regulated by Indian Police Act,1861. The duties of the police enshrined under the Act, basically finds itself within the clutches of the test of time, with respect to colonialism vs democracy.
Section 23 of the Indian Police Act, clearly defines the general role and duty of the police officer and section 20 of the act, provides for the restriction which acts as a check and balance on the unfettered discretion of the police when exercising their duty. The changing times, drew great attention of the esteemed law makers of our country and for maintaining and preserving the social order and tranquillity of our state, so a new act was passed, Model Police Act of 2006, which exhaustively discusses the roles and duties of the police, in all the fronts.
The general duties of the police has been incorporated under section 57 of the Model Police Act, 2006, which brings out the general essence and theme of the concept policing, enshrined in our laws. In the present research, it is important to pay much heed to section 57(e), 57(f) and 57(g) of the Model Police Act, which basically deals with the role of Police in the trial procedures. Section 57(e), deals with the dynamic role of the police, which is really necessary for curbing the commissioning of the crimes and any other opportunity associated with such commission of the crime. Section 57(f) deals with the duty of the police, to accurately register all the complaints brought to their notice, by any form, right from in-person representation to the digital media information. In this regard it is pertinent to note, how the Hon’ble Rajasthan High Court, interpreted the idea, on telephonic FIRs, in the case of Tehal Singh v State of Rajasthan, by virtue of which the main essence of section 154 Cr.P.C has been maintained. Section 57(g) of the act, it deals with the duty of the police with regards to registration and investigation of the cognizable offences. This also furnishes, that free copy of the FIR to be given to the complainant. This provision of Cr.P.C is in full consonance with the spirit of section 154(1), 154(2) and section 156(1) of the Cr.P.C. All these changes were brought in the initial police act, in accordance to the guidelines and remarks made by Hon’ble Supreme Court in the case of Prakash Singh v Union of India.
(The essential functions of the police pertaining to the trial, which has been given in the police acts, has been discussed in the next chapter)
CHAPTER-2DUTIES OF THE POLICE UNDER CRPC
1) ARREST AND DETENTION IN THE CUSTODY
For prevention and detection of crimes, a police officer has the power and duty to arrest the accused on the reasonable grounds or reasonable suspicion or with appropriate orders(warrant of arrest). This has been enshrined under section 41 of the Cr.P.C, also the distinct power given to police under section 42 of the act is necessary for the further investigation and trial procedures. In case of the cognisable offence, a police can arrest the alleged culprit, without warrant and can investigate into the case, without any directions from the magistrate. In the case of non-cognizable offence there is an exception to the rule, as enshrined by section 42 of the act. The duties and procedure for the arrest should be made in consonance to section 41-B, 41-C and 41-D. Section 41-D, empowers the arrested to meet the advocate of his choice, during the process of interrogation and in regards to this Supreme Court has given some guidelines for arresting a judicial officer, which are not too exhaustive, in the case of Delhi Judicial Service Assn. v State of Gujarat. Also, section 57 empowers the police for the search of the place, who is sought to be arrested, which is further fabricated by section 51 which gives the police, power to search for the arrested person and if found something police officer can seize them under section 102 for producing it in the court and further under section 52, gives power to seize offensive weapons. According to section 53, it is the duty of the police to get the medical examination of the accused by the medical practitioner and Supreme Court held in the case of State of Bombay v Kathi Kalu Oghad, held that section 53 is not violative of article 20(3). It is further extended by section 54, where the arrested is examined by a registered medical practitioner.
By virtue of section 50(1), it is the duty of the police officer to inform the arrested person, his ground for arrest, which is in true consonance with the article 22(1) of the Constitution, which is a precious right as held in the case of Udaybhan Shuki v State of U.P. By virtue of section 50(2), it is again the duty of the police to inform whether the person arrested has right to bail, if arrested for non-bailable offence. In the case, Joginder Kumar v State of U.P and D. K Basu v State of W.B made it obligatory on the part of the police, to inform the relatives or friends of the arrested person and also to make an entry in a register maintained by the police, this has been incorporated with a view to maintain the dignity of the rights provided under article 21 and 22 of the Constitution. Under section 56 and 76 of the act, it is the duty of the police to take the arrested to the magistrate without any delay, which has been specified and formulated well in the section 57, which provides for the time threshold of 24 hours, with an exception as explained under section 167. The purpose for not detaining the arrested for more than 24 hours has been explained in the case of Mohd. Suleman v King Emperor and the Hon’ble Supreme Court portrayed this provision to keep a check on the healthy investigation by the police, and directed to be observed positively. Apart from this, as per the requirements of section 62, the procedure for the serving of the summons has to be done by a police officer in general, otherwise specified by the Courts. By virtue of section 79, the police officer has the power to arrest outside the jurisdiction, with the warrant of arrest.
2) PRE-TRIAL: INVESTIGATION BY POLICE
After the FIR is lodged, as per the ingredients of section 154, it is the duty of police under 154(1) to register the FIR, as held in the case of Lalita Kumari v Govt. of U.P, pertaining to any cognizable offence and such information must be definite and not vague. Further as per the mandatory provision of the section 154(2), it is the duty of the police to furnish the copy of FIR to the complainant, whose exception has been explained categorically in the case of State v Gnaneswaran. In the case of non-cognizable offences, complying with the provisions of section 155(1), a police officer cannot proceed to investigate without the orders of the magistrate and its non-compliance may be a material cause in vitiating the ultimate proceedings, as well as it may be violative of Article 21. When the police officers gets an order from the magistrate for investigating a non-cognizable offence, the police officers, save as powers to arrest gets the power to arrest as in the case of cognizable offence. The police officer, by virtue of section 156, gets power to investigate the cognizable offences, where under 156(3) a magistrate has the power to order investigation, only at the pre-cognizance stage. The right of the police officer for investigation under section 156 is unfettered and cannot be controlled by Judiciary. Another important procedural aspect is the prompt lodging of the FIR is necessary for recording the spontaneous version of the case, hence it is the duty of the police to do the same. While analysing the section 156, we find the concept of cognizance by magistrate under section 190. The police in complaints sent to them under section 156(3) may make the investigation of the offence and send a report to the Magistrate under section 173. It will deemed to have been taken on the police report not on the original complaint. A magistrate may take cognizance of the offence under section 190, and instead of ordering investigation under section 156(3) can examine the complainant under section 200, and if the magistrate finds the matter fit, can postpone the issue of process against the accused and can either inquire into the case himself, or direct an investigation by the police officer, as to whether there is sufficient ground for proceeding. When police officer receives the complaint under section 202 for investigation and report, he has all the powers which is required for the investigation, similar to his power in case of an offence invoked via section 154. Further by virtue of section 158, the duty of the police officer pertaining to the submission of report, for which the state government appoint the senior police officer for the same.
In case of the cognizable offence, after the lodging of the FIR, the police officer shall proceed to the spot, to investigate and after necessary discovery, may make arrest, as per section 157(1). Moving ahead with the procedural aspect, there is the power of police under section 160(1), to require the attendance of the witness maintaining the conditions specified therein. There is a proviso attached to the section pertaining to person below 15 years or age and person above 65 years of along with woman or a man who is physically disabled. In Queen Empress v Jogindra Nath Mukerjee, it was held magistrate cannot issue any process compelling a person to attend before a police magistrate. Further section 161 and 162 gives the power to the police, for examination of the witness. According to section 161(1), oral examination of the person acquainted with the facts and circumstances of the case. As per the provision, it is the legal duty of the person to attend the investigating officer, if required, as intentional omission is an offence under section 174 IPC. In Pushma Investment (P) Ltd. v State of Meghalaya, Gauhati High Court has held, police can require witness to attend the police station, if they reside within the limits of the station or the adjoining police station. Section 161(1) lays down certain prescriptions, to be followed pertaining to the rank of the police officer, which must be specified by the State Government, must be duly followed. Analysing the flavour of the section, we can understand that the person, who is being examined must answer all the question correctly, but this would not bound him as such, which can invoke criminal liability against himself. Furthermore, in the case of Gian Singh v State(Delhi Admn.), it was held that police can question the accused even on his right to silence, with due permission of the magistrate, in the judicial custody. While interrogation, if a person furnishes voluntary false information to the police, or gives false evidence can draw penal action under section 193 and 177 of IPC respectively. In this context, Nandini Satpathy v P.L Dani, case is extremely important, which says area covered by section 161(2) and Article 20(3) is substantially the same and the 161(2) of Cr.P.C is a parliamentary gloss on the constitutional clause. The Supreme Court held that, a person is bound to answer where there is no clear tendency to criminate. The concept of “Compelled Testimony” was brought into the picture, and in the case, some guidelines were framed which were to be followed. The most important one was that the accused must be allowed to meet his lawyer, during the interrogation, which was also held in the D.K Basu v State of W.B. In one of the guidelines of the Satpathy’s case, it was held, police has the duty to invariably warn and record the fact, about the right to silence against self-incrimination and after the examination of the accused, the police officer must take him to the magistrate or any responsible person(in case of absence of his lawyer).
Finally, all these guidelines were not binding in nature, but were necessary for bringing out the prudent police policy. The section 161(3) gives wide power to the police to record or not to record any statement during the investigation. Now section 162 and 163, broadly talk about the validity and admissibility of the nature of statements recorded by the police under section 161. Section 162, prohibits signing of any statement obtained by the police, during the course of investigation, supports that it protects the accused from zealous police officers and untruthful witnesses. This provision is time specific and is applicable only during the time of investigation, with an exception to the dying declaration which is admissible under section 32 of the Indian Evidence Act. Therefore, the statements not reduced in writing by the police cannot be used as contradiction, under section 145 of the Evidence Act. The Court cannot rely on the confessions of the accused and case diary statements of the witnesses to come to a conclusion, as statements of witness under section 161 are admissible to the limited extent permitted under section 162(1) proviso and 162(2). Finally, the pivotal provision to test the aforesaid examination comes into picture, section 163, by virtue of which statements cannot be recorded by the police by any kind of pressure or inducement. This section derives its aroma in the presence of section 24 of Indian Evidence Act and 163(1) is not only applicable to the police but to any person in authority. Finally, when the investigation is complete, there are certain procedures to be followed upon. When the evidence is deficient, the accused is to be released by the police, with a bond, with or without security, for the procedure, to be taken after cognizance and during the trial(Section 169). When the evidence is sufficient, the case has to be taken by the police to the magistrate, for the trial and if the offence is bailable he has to be released on bail, with a bail bond with or without securities(Section 170(1)). Secondly, as per provision 170(2), the police officer has to forward any weapon or article, or any security to the magistrate, in order to give evidence for the charge framed against the accused.
On the completion of investigation, a mandatory report is submitted by the Investigating Officer, which is commonly called, ‘Charge-sheet’, and it is given without delay (173(1)). It includes all the necessary details of as prescribed under section 173(2)(i) and submission of this report is a part of the investigation. In this regard it is pertinent to note that, the magistrate under section 156(3) has the power to further direct the investigation even after submission of the report by the police. This means it would not affect the power of the investigating officer to further investigate the case even after the submission of the report. Finally as per the section 174 the police has the power to investigate and report the cases in cases of unnatural and suspicious deaths and under section 175 the police has the power to summon at inquest, in order to investigate the case registered under section 174 and their statements are again governed by the section 162.
The role of police, their duties in the light of various police acts and under the Cr.P.C is undoubtedly exhaustive and coherent. The Pre-trial role of the police, right from arrest to the investigation is in full consonance to the spirit of the fair trial, an original form of natural justice. This has been elucidated in the above research, which deals with the role of the police which is to be expected right from arresting a person, by allowing the arrested certain basic human rights is really commendable.
The latent jurisprudence of all these rights clearly furnish that, our highest organic laws of the land, grants us certain Fundamental Rights, which is not jeopardised throughout the pre-trail role performed by the dynamic police. The investigation procedure, requires that magistrate and the judicial bodies are kept informed about the procedures adopted by the police, which keeps a check on the process.
The recording of statements by the police, has been always subjected to the evidence and its value, which again doesn’t give the draconian power to the police authorities, making the whole actions and procedures adopted by them smooth, justifiable and in the interest of the fair trial for the accused. Therefore, from the above discussion and research I am of the view that the role of police, is the pre-trial is exhaustive enough to make the process coherent.
Phone tapping: The saga of right to privacy and the Telegraph Act
The right to privacy was conceived around the home, and unauthorised intrusions into homes were seen as interference with the right to personal liberty. The court recognised ‘the right to the people to be secure in their persons, houses, papers, and effects’ and declared that their right against unreasonable searches and seizures was not to be violated.
In the Era of Digital Communication, Telephone – Tapping is a serious invasion of an individual’s privacy. With the growth of highly sophisticated communication technology, the right to sold telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse. It is no doubt correct that every Government, howsoever democratic, exercises some degree of sub-rosa operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected from being abused by, she authorities of the day. Although Phone Tapping is a debatable issue in India, as it directly infringes one’s Right to Privacy, which is a fundamental right of every Indian.
However, meanwhile in Maharashtra, As Smt. Rashmi Shukla, IPS Officer alleged to be leaked the confidential data of intercepts, which create a whirl in Maharashtra Politics. In this background let’s travel to revisit the issue of Phone Tapping.
The term “phone tapping” means interception of the contents of communication through a secret connection to the telephone line of one whose conversations are to be monitored usually without the consent of the person whose communication is monitored. Here, the question arises about the violation of the right of privacy of individuals. Every act without the consent of the person termed as an illegal act by a private person or public officer but in the case of public emergency or in the interest of public safety does not need any consent.
While it is moral and ethical not to peep in some one’s privacy but when it comes to sovereignty and Internal security of the state, the state has every Legal right to do so.
Life and liberty are not empty words; they include all those necessary ingredients which give meaning to them. Privacy of a person is a part of his life and liberty under our Constitution. Any invasion of this right, which is fundamental in nature, can be done only according to the constitutional limitations.
The act of telephone tapping affects right to privacy as well as right to freedom of speech and expression, both are Fundamental Rights under the Constitution. Art 21 of the Constitution.
Therefore, not only substantive law but even the procedure should satisfy the constitutional test. The power of interception of communication can be resorted to, when it is necessary or expedient so to do in the interest of the sovereignty and integrity of India, security of the state, friendly relations with foreign state, public order or for preventing incitement to the commission of an offence.
PHONE TAPPING, RIGHT TO PRIVACY AND THE JUDICIARY
The Judiciary of India, have time to time uphold the right to privacy, Courts in its order/judgments have observed that any private conversations of any individual have to be protected unless it is disturbing the National Security and Sovereignty.
However, The process related to the right to privacy began in Kharak Singh v. State of U.P., where the court discussed the relationship between surveillance and personal and found that unauthorized intrusion into a person’s home would interfere with his/her right to personal liberty.
The right to privacy here was conceived around the home, and unauthorized intrusions into homes were seen as interference with the right to personal liberty. The court recognized “the right to the people to be secure in their persons, houses, papers, and effects” and declared that their right against unreasonable searches and seizures was not to be violated.
Further, in People`S Union vs The Union of India And Another, the court ruled that telephone tapping would violate Article21 of the Indian Constitution unless it was permitted by the procedure established by law and that it would also violate the right to freedom of speech and expression under Article 19 unless it came within the restrictions permitted by Article19(2) & has issued certain guidelines-
1. An order for telephone-tapping in terms of Section 5(2) of the Act shall not be issued except by the Home Secretary, Government of India (Central Government) and Home Secretaries of the State Governments. In an urgent case the power may be delegated to an officer of the Home Department the Government of India and the State Governments not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned with one week of the passing of the order-.
2. The order shall require the person to whom it is addressed to intercept in the course of their transmission by means a public telecommunication system, such communications as are described in the order. The order may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the order.
3. The matters to be taken into account in considering whether an order is necessary under Section list of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means.
4. The interception required under Section 5(2) of the Act shall be the interception of such communications as are sent to or from one or more addresses specified in the order belong an address or addresses likely to be used for the transmission of communications to or from, from one particular person specified or described in the order or one particular set of premises described in the order.
5. The order under Section 5(9) of the Act shall, unless renewed, case to have effect at the end of the period of two month from the date of issue. The authority which issued the order may, at any time before the end of two-month period renew the order if it by the State Government.
(a) The Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order whether there has been any contravention of the provisions of Section 5(2) of the Act.
(b) If on an investigation the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material.
(c) If on investigation, the Committee comes to the conclusion that there has been no contravention of the provisions of Section considers that it is necessary to continue the order in terms of Section 5(2) of the Act. The total period for the operation of the order shall not exceed six months.
6. The authority which issued the order shall maintain the following records:
(a) the intercepted communications,
(b) the extent to which the material is disclosed,
(c) the number of persons and their identity to whom any of the material is disclosed.
(d) the extent to which the material is copied and
(e) the number of copies made of any of the material.
7. The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act.
8. Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act.
9. There shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed 5(2) of the Act, it shall record the finding to that effect.
Further, in the case of K.L.D Nagasree v. Government of India (2006), while referring the ruling of the Court in the P.U.C.L case, it was held that “For the reason of making an order for interception of messages in the exercise of powers under Section 5(1) and (2) of the Telegraph Act, 1885 the happening of any public emergency or the existence of a public safety interest is the sine qua non (mandatory).”
PHONE TAPPING: ONLY IN CASE OF NATIONAL SECURITY AND THREAT TO SOVEREIGNTY
In 2019, The Bombay High Court in Vinit Kumar vs State of Maharashtra held that tapping of telephones was only allowed in cases of public emergency or public safety. Observing that illegal phone tapping was an infringement of the fundamental right to privacy, the court quashed three orders passed by the Union Home Ministry allowing investigating agencies to intercept the calls of a businessman involved in a bribery case.
In light of the above, it can be said that there is no legal impediment in recording the telephonic conversation with prior written consent of all the parties to the telephonic conversation and the same is not in violation of right to privacy enshrined under Article 21 of the Constitution and shall also be outside the ambit of interception.
Interception in the general sense means monitoring of such information by means of a monitoring device or viewing, examination or inspection of the contents of any direct or indirect information and diversion of any direct or indirect information from its intended destination to any other destination. Remedies that are available to aggrieved persons can be that in cases where unlawful interception infringes the right to privacy then the aggrieved person can file a complaint in the Human Rights Commission.
For now, the Indian public has gradually become aware of possible privacy violations that could be caused by technology and they know for prevention and investigation of crimes or in maintaining the sovereignty, integrity, and security of the state or if such information discloses clues and evidence of a crime or scandal, they have to be pursued.
An FIR can be lodged under the IT Act & telegraph act, when illicit phone interception comes into the knowledge of the person. Moreover, the aggrieved person can move to the Court against the person or company doing the Act. Therefore, in India, phone tapping has to be approved by a designated authority and it is illegal otherwise.
The Author is Executive Member of Maharashtra BJP Executive Committee – Legal Cell.
The term ‘phone tapping’ means interception of the contents of communication through a secret connection to the telephone line of one whose conversations are to be monitored usually without the consent of the person whose communication is monitored. Here, the question arises about the violation of the right of privacy of individuals. Every act without the consent of the person is termed illegal by a private person or public officer but in the case of public emergency or in the interest of public safety does not need any consent.
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