“I will give you a talisman. Whenever you are in doubt or when the self becomes too much with you, apply the following test:
Recall the face of the poorest and the weakest man whom you may have seen and ask yourself if the step you contemplate is going to be of any use to him. Will he gain anything by it? Will it restore him to a control over his own life and destiny? In other words, will it lead to Swaraj for the hungry and spiritually starving millions?
Then you will find your doubts and your self melting away.”
– Mahatma Gandhi
It is not just for enjoying life or going for some holiday trip that lawyers of West UP repeatedly keep going on strike since last many decades. It should not be glossed over that when lawyers go on strike, it is their livelihood itself that gets affected but all the successive Central Governments have been totally impervious to their legitimate demands by which it is the “poorest of poor”, women, people of lower class who will benefit most as they will then not be required to travel all the way more than 700 km on an average of the 26 districts of West UP with population of more than 9 crore all the way to Allahabad to get justice which means that whole night and half day is wasted just on journey itself. How can lawyers who fight for the litigants cause remain nonchalant to their endless woes which the litigants have to face to travel such a long way and then spend so much of amount in staying there and hiring lawyer and what not!
We all witnessed how when the representatives of all the districts of West UP assembled at Meerut to chalk out their future plan for giving momentum to the agitation for a demand for High Court Bench in West UP under the Chairmanship of the Central Action Committee constituted for this purpose – Mahavir Singh Tyagi who is the current Chairman and also the President of the Meerut Bar Association there was tremendous anger among the lawyers that Centre was not taking a decision on this key issue since last many decades. The lawyers of West UP have been going on strike every Saturday since May 1981 and since last more than four decades have been continuously doing so relentlessly and now it has been decided that the lawyers of West UP will also go on strike on every second and fourth Wednesday of every month and apart from this will also strike on the 29 September, 30 September, 1 October and so also 2 October, 2021 and will now further intensify their age old agitation! It is most baffling as to why can’t Centre create more High Court Benches in UP which has maximum pending cases in India – more than 10 lakh cases in High Court and are on verge of touching one crore cases in lower courts!
While keeping what Gandhiji had said in mind, late Justice Dr AR Lakshmanan who was the Chairman of 18th Law Commission of India while submitting the 230th report titled “Reforms In The Judiciary – Some Suggestions” had very strongly recommended creation of more High Court Benches in different states which he submitted on August 5, 2009 but even after more than 12 years only one state gained from it and that is Karnataka itself where for just 4 and 8 districts two more High Court Benches were created at Dharwad and Gulbarga and not anywhere else till now even though it is UP that tops the maximum pending cases among all the states and West UP alone has more cases pending than that of whole of Karnataka and population wise also West UP at 9 crore stands way above Karnatka which has just 6 crore population yet has High Court also and 3 Benches also but what an unbeatable irony that for West UP Centre is not ready to concede even a single Bench or even a Circuit Bench! Most disgraceful!
Can anyone deny that even the 18th Law Commission in its 230th report candidly noted: “In almost every High Court, there is huge pendency of cases and the present strength of the judges can hardly be said to be sufficient to cope with the alarming situation. It is also necessary that the work of the High Courts is decentralized, that is, more Benches are established in all States. If there is manifold increase in the strength of the judges and the staff, all cannot be housed in one campus. Therefore, the establishment of new Benches is necessary. It is also in the interest of the litigants. The Benches should be so established that a litigant is not required to travel long. It is true that the new establishments will require money, but it is necessary as a development measure, particularly, when efforts are being made for all-round development of the country. Therefore, the money should not be a problem. We have to watch and protect the interest of the litigants. We must always keep in mind that the existence of judges and advocates is because of the litigants and they are there to serve their cause only. Sometimes, some advocates object to creation of new Benches and selection of new sites for construction of new buildings. But they raise objections in their personal, limited interest. Creation of new Benches is certainly beneficial for the litigants and the lawyers and a beginning has to be made somewhere. A speedy trial is not only required to give quick justice but it is also an integral part of the fundamental right of life, personal liberty, as envisaged in article 21 of the Constitution. Article 39A of the Constitution provides for equal justice and free legal aid. The said article obligates the State to promote justice on a basis of equal opportunity and, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities?”
Can anyone deny what Justice Krishna Iyer said : “The way to eliminate this ghastly syndrome of judicial arrears is not more state force but making the system of justice, justices and justicing truly accessible to the have-nots by means of radical judicial reform that is decentralised and democratic. If this does not become possible, the suffering people may leave the courts and take to the streets.” Does this not perfectly apply to UP where more than 1 crore cases are pending that is nearly half the cases pending all over India and here also West UP alone accounts for more than 50% cases? Still should a Bench not be created in West UP? You tell me. Even in other big States like Rajasthan, Orissa and many others, more high court benches should be created so that the huge backlog of pending cases comes crumbling down and the entire criminal justice system stand to gain in the whole process and undertrials gain quicker access to justice.
According to a statement by learned Andhra Pradesh High Court Judge Justice VV Rao in March 2010, “The Indian judiciary would take 320 years to clear the backlog of 31.28 million cases pending in various courts including High Courts in the country’’ is undeniable. That any attempt to speed up the disbursal of justice could go a long way in addressing the problem and what better than the setting up of more High Court benches and to start with which state is better than UP which is one of the biggest state in India, has maximum pending cases among all the states accounting for nearly half of the total pending cases and here too it is West UP which accounts for most of the cases among the pending cases in UP is undeniable but there is still only one Lucknow bench is quite strange! That setting up of more High Court benches will help the system to come out of its present inertia and address the endless woes of the poorest of the poor who suffer the most in the entire process of delivery of justice for no fault of theirs is undeniable but still there is no sign shown by government to create benches in needy places like West UP is quite strange!
What can be a bigger injustice for the common man of West UP than the harsh and lamentable fact that the High Courts of 8 states including Himachal Pradesh, Uttarakhand, Haryana, Punjab, Delhi and above all even Lahore High Court are nearer to West UP in comparison to Allahabad High Court! Who suffers as a result? It is the common man who is the worst affected who has to spend one full night and half day on journey alone to travel all the way to Allahabad!
It must be asked: Why when UP which is among the largest States, has maximum population – more than 24 crore as CM Yogi Adityanath keeps pointing out every now and then, maximum districts – 75, maximum constituencies, maximum tehsils – 350, maximum MPs – 80, maximum MLAs – 404, maximum PM including Narendra Modi, maximum pending cases – more than 10 lakh and here too West UP accounts for more than half of pending cases as noted by Justice Jaswant Commission about 57%, maximum Judges which earlier was 160 and increased to 200 in high court, maximum vacancies of Judges – 75 in high court, maximum poverty, maximum villages more than one lakh as opposed to other states who have not more than few thousands at the most, maximum cities more than 700, maximum fake encounters killings, custody killings, custodial tortures, maximum dowry cases, maximum rape and gang rape cases, maximum acid throwing cases, maximum bride burning cases, maximum cases of human rights violations, maximum undertrials, maximum cases of crime, loot, arson and riots and here too West UP tops with Saharanpur riots, Meerut riots, Muzaffarnagar riots tarnishing our international reputation to the extent that former UN Secretary General Ban ki Moon termed UP as “crime and rape capital” of India and what not yet Centre is not prepared to create even a single bench for not just West UP but entire UP? Why when UP sends maximum MPs to Lok Sabha – 80, maximum MPs to Rajya Sabha – 30, maximum MLAs to State Assembly – 404 MLAs and maximum members to State Legislative Council – 100 MLAs and yet has least benches – only one and that too just 200 km away from Allahabad at Lucknow?
It is so shocking and disgusting to see that West UP is fast becoming the epicenter of all kinds of crimes, rapes, gangrapes, brutal murders, mass murders, dacoity, robbery and what not still no High Court Bench being created! Even the former Chairman of Bar Council of UP – Darvesh Yadav who was the first woman to assume the high office at young age of just 38 years was shot dead in the court premises itself soon after being elected in Agra in West UP! What is even more shocking to see is that all political parties barring Samajwadi Party have openly espoused the creation of a high court bench in West UP but still even after seventy four years of independence we see no sign of it happening anytime soon! What is most shocking is that inspite of West UP accounting for more than half of the crime cases all over UP, not a single high court bench has been created here since 1947 till now in 2021 even though a high court bench was created at Lucknow which is just about 150-200 km away from Allahabad way back on July 1, 1948!
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CIVIL DISPUTE GIVEN COLOUR OF CRIMINAL OFFENCE: SC SAYS CRIMINAL PROCEEDINGS SHOULD NOT BECOME WEAPONS OF HARASSMENT
While sending a loud and clear signal that criminal proceedings should not become weapons of harassment, the Supreme Court in a learned, laudable, landmark and latest judgment titled Randheer Singh vs The State of UP & Ors in Criminal Appeal No. 932 of 2021 (Arising out of SLP (Crl.) No. 1190 of 2021) With Criminal Appeal No. 933 of 2021 (Arising out of SLP (Crl.) No. 4237 of 2021) delivered on September 2, 2021 while quashing criminal proceedings initiated against a property purchaser observed that dispute of a civil nature has been given colour of criminal offence. It must be apprised here that the Bench of Apex Court comprising of Justice Indira Banerjee and Justice JK Maheshwari observed that while considering a petition seeking quashing of criminal proceedings, the High Court should examine whether a complaint discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not. The Bench reiterated that Section 482 is designed to achieve the purpose of ensuring that criminal proceedings are not permitted to generate into weapons of harassment.
To start with, this brief, brilliant, bold and balanced judgment authored by Justice Indira Banerjee for herself and Justice JK Maheshwari sets the ball rolling by first and foremost observing in para 1 that, “This appeal is against a judgment and order dated 15th December, 2020 passed by the High Court of Judicature at Allahabad dismissing the application of the Appellant under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the ‘Cr.P.C.’).”
To put things in perspective, the Bench then puts forth in para 3 that, “As recorded in the judgment and order impugned, the application under Section 482 of the Cr.P.C. had been filed for quashing of proceedings in Crime Case No.5973/2020 (State v. Rajan Kumar) under Sections 420, 467, 468 and 471 of the Indian Penal Code (hereinafter referred to as the ‘I.P.C.’), Police Station Shahpur, District Gorakhpur pending in the Court of the Additional Chief Judicial Magistrate, IIIrd District Gorakhpur and also to quash the charge sheet dated 18th January, 2020 and summoning order dated 26th June, 2020. The High Court has, in detail, recorded the arguments of the applicants which are very briefly summarised hereinbelow :-
(i) The case lodged was false and baseless;
(ii) Charge-Sheet had been submitted without proper investigation and evidence;
(iii) No prima facie case was disclosed against the applicants.”
Simply put, the Bench then states in para 4 that, “It is the case of the Appellant that one Arjun Dev and his wife Bela Rani were recorded as Bhumidhar of Plot No. 971M area 918 Aire (hereinafter referred to as the ‘plot in question’) and that they had executed a registered Power of Attorney in favour of the Applicant No.1 Rajan Kumar, who has since died.”
Adding more, the Bench henceforth observes in para 5 that, “It is said that on the basis of the said Power of Attorney, the said Rajan Kumar (since deceased) executed sale deeds in favour of the Appellant and his family members on 16th July, 2014, 1 st August, 2014, 6th August, 2014 and 23rd July, 2014, pursuant to which, the name of the Appellant and others were mutated in the Revenue records.”
Needless to say, the Bench then lays bare in para 6 that, “From the facts, as recorded in the judgment and order under appeal, it appears that during the mutation proceedings, one Smt. Beena Srivastava had filed objections before the Naib Tehsildar but the same were rejected and the property was duly mutated in favour of the Appellant and his family members by an order dated 28th February, 2015.”
Simply stated, the Bench then says in para 7 that, “Smt. Beena Srivastava filed an Original Suit No. 971 of 2014 for cancellation of the Power of Attorney dated 4th June, 2014 and the sale deeds executed by Rajan Kumar (since deceased) in favour of the Appellant and his family members but that suit was dismissed under Order VII Rule 11 of the Code of Civil Procedure, by order dated 18th September, 2015.”
As it turned out, the Bench then discloses in para 8 that, “The order dated 18th September, 2015 was challenged in First Appeal No.531 of 2015 before the High Court. That appeal was partly allowed by an order dated 26th November, 2015 with a direction on the Trial Court to return the plaint of the plaintiff for presentation before the appropriate Court.”
As we see, the Bench then brings out in para 9 that, “Being aggrieved by the order of the High Court dated 26th November, 2015, Smt. Beena Srivastava, approached this Court by filing Special Leave Petition (Civil) No. 2848 of 2016 which had been dismissed by an order dated 8th September, 2016. From the judgment and order impugned, it appears that it had been submitted before the High Court that Chandra Prakash Srivastava and Smt. Beena Srivastava had also filed a Contempt Application No. 706 of 2016 which had been dismissed by an order dated 10th February, 2016. Before the High Court, it was submitted that when Beena Srivastava could not get any relief from the Trial Court right upto this Court, she filed a Writ Petition No. 12275 of 2016 which had also been dismissed by an order dated 28th March, 2016. The said Beena Srivastava’s son, Dr. Virat Swaroop Saxena also filed a contempt application which had been dismissed by an order dated 29th July, 2016.”
Of course, the Bench then puts forth in para 10 that, “Pursuant to the order dated 28th March, 2016 passed by the High Court in Writ Petition No.12275/2016, the Appellant instituted Original Suit No.608 of 2016 in the Court of Civil Judge, Senior Division, Gorakhpur for permanent injunction in respect of the plots in question. It appears that by an order dated 12th April, 2016, temporary injunction had been granted in favour of the Appellant. This is recorded in the judgment and order under appeal.”
Be it noted, the Bench then envisages in para 16 that, “There can be no doubt that the jurisdiction under Section 482 is not exercised for the asking, it is exercised with care in exceptional cases. The scope of interference with an FIR is much more restricted and ordinarily the Court does not interfere under Article 226 of the Constitution of India, when there is an alternative remedy available to the applicant. Furthermore, from the tenor of the order of the High Court rejecting the writ petition, it is patently clear that one of the reasons why the High Court did not intervene at that stage was that the Police report had also not been submitted. The Police report has since been submitted and the charge sheet has been filed. It is true that about 12-13 witnesses have been named. However, the said Bela Rani who executed the Power of Attorney has not even been cited as a witness. Apparently, the said Bela Rani was not even examined by the Investigating Authorities.”
For the sake of clarity, the Bench then observes in para 17 that, “In this appeal, we are not concerned with the underlying civil disputes between the parties which are the subject matter of diverse civil proceedings which are pending between the Appellant and the private respondent in the concerned civil courts. All those civil suits will obviously be decided on their own merits.”
No doubt, the Bench then rightly adds in para 18 that, “The only question is whether there is any criminal offence disclosed in the FIR so far as the Appellant is concerned. When the High Court passed its order dated 5th October, 2017, Rajan Kumar (since deceased), the executant of the sale deed and the Power of Attorney holder was also an applicant before the Court. Today, there has been a change in situation, in that, criminal proceedings against Rajan Kumar have abated since Rajan Kumar is no longer alive. It is the case of the private respondent that the private respondent purchased property. In the meantime, Rajan Kumar, who is no longer alive, on the basis of a false Power of Attorney of Bela Rani, executed a sale deed in favour of Randheer Singh, i.e., the Appellant herein. There is only a vague averment “by connivance”. The next part of the sentence reads “Bela Rani had no right to sell the aforesaid plot.”
Quite rightly, the Bench then points out in para 19 that, “As recorded in the judgment and order, the property in question has even been mutated in the name of the Appellant. Of course, mutation records are not a document of title. Whether Bela Rani had title, whether she validly executed a power of attorney, whether any right has accrued to the Appellant, are matters for the civil court to adjudicate.”
Without mincing any words, the Bench then states in para 22 that, “The charge sheet is totally vague. There is not even a whisper in the charge-sheet of what transpired from the investigation against the Appellant herein.”
To be sure, the Bench then stipulates in para 23 that, “Even though an FIR need not contain every detail, an offence has to be made out in the FIR itself. It is the case of the Private Respondents that Bela Rani has no title. Bela Rani executed a false Power of Attorney in favour of Rajan Kumar (since deceased). Alternatively, the Power of Attorney, in itself, was a forged document.”
Quite forthrightly, the Bench then quite aptly hastens to add in para 24 that, “A fraudulent, fabricated or forged deed could mean a deed which was not actually executed, but a deed which had fraudulently been manufactured by forging the signature of the ostensible executants. It is one thing to say that Bela Rani fraudulently executed a Power of Attorney authorising the sale of property knowing that she had no title to convey the property. It is another thing to say that the Power of Attorney itself was a forged, fraudulent, fabricated or manufactured one, meaning thereby that it had never been executed by Bela Rani. Her signature had been forged. It is impossible to fathom how the investigating authorities could even have been prima facie satisfied that the deed had been forged or fabricated or was fraudulent without even examining the apparent executant Bela Rani, who has not even been cited as a witness.”
While citing the relevant case law, the Bench then states in para 29 that, “In Uma Shankar Gopalika (supra), this Court found that the complaint, in that case, did not disclose any criminal offence at all, much less any offence under Section 420 or Section 120B IPC. The case was purely a civil dispute between the parties for which remedy lay before the civil Court.”
In yet another case law, the Bench then holds in para 32 that, “In Kapil Agarwal (supra), this Court observed that Section 482 is designed to achieve the purpose of ensuring that criminal proceedings are not permitted to generate into weapons of harassment.”
Most significantly, what forms the cornerstone of this notable judgment is that the Bench then minces no words to hold in para 33 that, “In this case, it appears that criminal proceedings are being taken recourse to as a weapon of harassment against a purchaser. It is reiterated at the cost of repetition that the FIR does not disclose any offence so far as the Appellant is concerned. There is no whisper of how and in what manner, this Appellant is involved in any criminal offence and the charge sheet, the relevant part whereof has been extracted above, is absolutely vague. There can be no doubt that jurisdiction under Section 482 of the Cr.P.C. should be used sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the ends of justice. Whether a complaint discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not has to be judged by the High Court. There can be no doubt that a complaint disclosing civil transactions may also have a criminal texture. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in Paramjeet Batra (supra) extracted above.”
What’s more, the Bench then goes on to forthrightly add in para 34 that, “The given set of facts may make out a civil wrong as also a criminal offence. Only because a civil remedy is available may not be a ground to quash criminal proceedings. But as observed above, in this case, no criminal offence has been made out in the FIR read with the Charge-Sheet so far as this Appellant is concerned. The other accused Rajan Kumar has died.”
As a corollary, the Bench then holds in para 35 that, “The appeal is, thus, allowed. The impugned judgment and order of the High Court is set aside and the proceedings in Crime Case No.5973/2020 are quashed as against the Appellant.”
CRIMINAL APPEAL NO. 933 OF 2021
Truth be told, the Bench then holds in para 37 that, “The issues involved in this appeal are identical to the issues involved in Appeal No. 932 of 2021 disposed of earlier today. We may add that in this case, the Appellants are only witnesses to the sale deed and there is not a word anywhere in the FIR about these witnesses except the vague averment that they acted in collusion.”
Finally, it is then held in para 38 that, “For the reasons discussed in Criminal Appeal No. 932 of 2021, this appeal is also allowed and Crime Case No.5973 of 2020 is set aside so far as these Appellants are concerned.”
In sum, the Apex Court has made it very crystal clear in this leading case that it will not allow ever a civil dispute to be given a colour of criminal offence. The Bench also makes it amply clear that all precautions must be taken to ensure that criminal proceedings should not become weapons of harassment. All the courts must always abide to what has been laid down by the Apex Court in this noteworthy case so cogently, commendably, composedly and convincingly! There can be just no denying it!
Sanjeev Sirohi, Advocate
CYBER CRIME: A SPIDER, EXPANDING ITS WEB WITH EVERY NEW TECHNOLOGICAL ADVANCEMENT
In the past few decades, the world has become heavily dependent on information technology. With this we also come across the various instances of cyber crime where it is not just limited to being a mere computer crime but has a huge impact on the society as well. With our maximum number of tasks being performed through the medium of internet it exposes a lot of private data to the network. It has also resulted in becoming an evident threat to an individual’s privacy. The openness and unboundedness of the network has made it easier for the criminal to escape, he goes unchecked as the legal provisions remain superfluous. It has overtaken the conventional infrastructures be it of cables, voice industry, broadcasters, or the print world. It has turned out to be a new opportunity for the criminal mind. Another arena of intellectual property has also been severely affected by it. There is an abundance of information on the internet and this leads to poor patent quality, more copyright and trademark infringements. It even results in a negative impact on the prosecution procedure as the workload and pressure of the patent examining authorities is increasing with the rising number of issues related to the same. The amount of information on the internet is mammoth and this has even affected the economic factor as the cost of retrieving the relevant data has risen up. The problems concerning theft of data through the medium of internet or the unauthorised publication of some one’s work has become a common issue. The easy ways of cut, copy and paste has blurred the boundaries between original and copied work. The storage of vast amounts of data has resulted in its mass copying by uncountable netizens. The criminals take advantage of anonymity on the platform and resort to various ways of defrauding people. Expanding horizons of internet and digitization has resulted in an entire new generation of crimes- the cyber-crimes.
In the contemporary times, computer glitches, cyber crimes and informational harms rising rapidly. The investigation process which involves fact finding and the search for truth is facing legal, technical, operational, and political challenges on its path. To check the behaviour of an individual online and to achieve the purpose of criminal law traditional laws have geared up to some extent and are changing, thereby suiting to the environment of the internet age. To meet the changing legal needs newer technology specific laws are coming in advanced societies. The internet boom has expanded the horizons of criminal activity and has also empowered the non-deviant and inactive criminal to take up new criminal activities which are online. Some of the cyber activities that have been brought within the legal entrenchment are hacking, obscene electronic material, stalking and a few others. But others escape regulation because of their esoteric nature. As it is important for a civilised society to have law similarly it is important to have a legislation to regulate electronic activities. The effect of these crimes is found in the real world though it is committed in the virtual surroundings. However, it is not as easy as it sounds.
In India, cyber laws are contained in the Information Technology Act, 2000, which came into force on October 17, 2000. The main purpose of the Act is to provide legal recognition to electronic commerce and to facilitate filing of electronic records with the Government.
“The existing laws of India, even with the most compassionate and liberal interpretation could not be interpreted in the light of the emergency cyberspace, to include all aspects relating to different activities in cyberspace. In fact, the practical experience and the wisdom of judgement found that it shall not be without major threats and pitfalls, if the existing laws were to be interpreted in the scenario of emerging cyberspace, without enacting new cyber laws. Hence, their is a need for enactment of relevant cyber laws.”
These technological changes have affected jurisdiction and evidence which are two of the most sensitive areas of the legal system.
In the technological spree it is the worst from of casualty. Jurisdiction has always remained a complex issue in international/ transnational matters but it has become even more of a complex issue in cyber-crimes. The majority of cyber-crimes such as stalking, spamming, unauthorised access etc. are often done remotely from a different country. For example, in the case of United States vs. Ivanov, the statue such as the CFAA was explicitly stated to be applied extraterritorially but in several other statues no such provisions are there and are thus the courts are left to decide with the jurisdictional decisions.
EVIDENCE COLLECTION AND PRIVACY CONCERNS
There has been an unending conflict between the collection of evidence and upholding the privacy of the individual so concerned. Computers in a household are one of the most personal assets of the occupant and illegally searching or seizing them might give rise to serious privacy concerns and might lead to the infringement of one’s personal rights. In the light of the same we would discuss two cases. The first one is a case of the United States of America. In Washington vs. Nordlund, the Washington court of appeals had held that warrants which the describe particularly the likelihood that a computer contains data evidencing a crime must show nexus between the crime and data. In India right to privacy is a constitutional right, safeguarded in several judgements. For example, in the case of People’s Union for civil liberties vs. Union of India, it was held by the supreme court that tapping of phone is a serious invasion of privacy which is a part of the individual’s right to “life and personal liberty” and these rights cannot be taken away in by the state except in cases of public emergency.
It can be observed that there exists a policy vacuum regarding how computer technology should be used. Adequate policies must exist for conduct in these situations i.e., policies should be formulated to guide the actions of the users of the network. Another observation made while the research work was done that people are still not fully aware of the correct and safe usages of internet and awareness is required. It is also essential to bring transformations in the traditional laws to suit to the changing times of technological innovations. Digital training for the law enforcement agencies is very much the need of the hour for better functioning of the justice system. Science and technology are an inevitable part of our life and thus the laws also need to evolve accordingly.
The call for equal representation of women in the judiciary
Women judges make a significant contribution to the quality of decision-making and, as a result, to the quality of justice. In order to be selected as a judge, women must have the requisite qualifications. And we are women, with all the social and cultural implications that entails, including intricate family relationships and obligations. Men and women judges have different perspectives on the law and how it affects people.
Recently, N.V. Ramana, Chief Justice of India, stated that women deserve 50% reservation in all levels of the judiciary. He called for global women’s solidarity where CJI mentioned they have only chains to lose, they must unite.
“Condemning centuries of job discrimination against women, Chief Justice N.V. Ramana called for an “urgent correction” and said he strongly supports a “significant percentage” of seats for women in law schools and universities. “Enough of 2,000 years of suppression.” It’s past time for 50% female judiciary representation. It’s your right. Not for charity,” Chief Justice stated at a Supreme Court session organised by women Advocates. India’s higher judiciary, including the Supreme Court and high courts, currently has no policy of female reservation. Reservations in the lower courts are determined by state and the high court policy. Justice Ramana’s statement came weeks after his collegium cleared the path for a female Chief Justice in 2027.
There are presently four women judges in the Supreme Court, out of the sanctioned 34.
On August 31, three judges were appointed to the Supreme Court, bringing the total number of women to 11.
After that, in September 2027, she will become the first female Chief Justice. Her term will be around a month long.
Justice Ramana noted that women make up roughly 30% of the lower judiciary. “Women make up 11.5 percent of high court judges.” Out of 33 justices, four are women. So it’s only 13%.
Only 15% of the 1.7 million advocates are female. Women make up only 2% of the state bar council elected representatives. The Bar Council of India does not have a female member,” the Chief Justice stated. Male attitudes prevent women from entering the workforce.
Insufficient infrastructure, packed courtrooms and the absence of women’s washrooms are all factors that discourage women from entering the field. CJI Ramana mentioned during my high court career, I saw that ladies had no toilets. “Women lawyers have to go considerable distances to court and wait in hallways.”
Diversifying legal education is an essential focal area, CJI said. “As a starting step, I firmly recommend a high number of seats for women in law schools and universities.”
Justice Ramana emphasised that inclusion of “women” judges and lawyers will substantially improve the quality of “Justice delivery” and that he will wholeheartedly support initiatives that will further the cause of eliminating gender disparity in the profession. Women lawyers and judges are role models for young girls aspiring to enter the field, Justice Ramana added. Justices Banerjee, Kohli, Nagarathna, and Trivedi were all complimented for their acts in preserving the Constitution, which he said will inspire women not only in the legal profession but in all aspects of life.
Also Justice Nagarathna said: “Women visibility as judicial officers can pave the way for greater representation of women in other decision-making positions such as legislative and executive branches of the government.”
IS THIS, AS FORWARD LOOKING AS IT APPEARS TO BE, THE PATH TO EQUALITY?
Women judges make a significant contribution to the quality of decision-making and, as a result, to the quality of justice. In order to be selected as a judge, women must have the requisite qualifications. And as we are women, with all the social and cultural implications that entails, including intricate family relationships and obligations. Men and women judges have different perspectives on the law and how it affects people. Women judges bring a broader and more compassionate perspective to the courtroom as a result of their personal experiences. Women in adjudication bring to the fore concerns that would not have been explored otherwise, broadening the discussion and maybe preventing ill-conceived or improper rulings. A gender viewpoint promotes the fairness of judgement, thereby benefiting both men and women. All judges should aim to include a gender viewpoint in their work. When we talk about equality, we talk about equal opportunity, not an assured ticket to ranks. When it comes to Judiciary, wouldn’t equality be giving women an equal and fair chance to appear for the selection process and quality guidance to excel in the same. Women getting 50% reservation, does not imply that all men shall get the remaining 50% based on merit. Those 50% shall also accomodate SC/ST/OBC/ EWS category male candidates. Apart from that, such 50% reservation for women also brings to surface the issue of transgender representation in the Judiciary. It assumes that 50% of the population is women and the remaining are a part of the other 50%. According to the law ministry, only 12% of the 677 sitting Supreme Court and high court judges are women. Only the Madras High Court has more than ten female judges among its 25 members. The Madras high court has 13 female judges out of 58 total, which is over 22% female. Manipur, Meghalaya, Bihar, Tripura, and Uttarakhand have no female judges, whereas seven other high courts have one. India’s 25 high courts have a total of 1098 judges. In September, 465 positions (almost 42%) were unfilled.
WHAT DO WOMEN IN JUDICIARY NEED?
Women have held higher positions in India, such as President, Prime Minister, and Speaker, but they are still underrepresented in higher judicial positions, such as Chief Justice of India, Attorney General, and Solicitor General. The lack of female judges in the judiciary has been highlighted in Parliament multiple times and debated by prominent panels at various legal conferences. Women in the judiciary must be encouraged.
Quality education, scholarships, and equal compensation are all possibilities. In the legal industry. Women are underrepresented in the judiciary compared to men. Women hold around a third of judicial positions.
Better court infrastructure to support women’s Sanitation requirements. Not just in the higher courts, but in the lower level courts where there are no proper toilet/sanitation facilities available for women.
Proper guidance and awareness, throwing away stereotypes, flexibility in age limits for judicial posts, etc.
The Indian judiciary has always wrestled with gender issues. Justices need to be “sensitized” The increase in female judicial participation may also help establish a more balanced and humane approach to sexual abuse cases. This is especially true when male judges fail to empathize with female victims. The judiciary does not tolerate intimidation, exclusivity, or privilege For judicial credibility, female participation is essential. Discriminatory judges undermine public confidence in the court as a protector of the law and human rights. A female presence is required to determine judicial legitimacy. Gender equality in the court and policy-making judicial bodies should be encouraged in order to produce a more just rule of law. Women judges boost public confidence in the justice system. Equal opportunity applies to all women, regardless of aptitude, talent, or skill. As a result, there may be a greater focus on women’s issues and legislation that is gender-neutral, as well as a guarantee of gender-based success or dominance. It is important to encourage more female judges.
Women have held higher positions in India, such as President, Prime Minister, and Speaker, but they are still underrepresented in higher judicial positions, such as Chief Justice of India, Attorney General, and Solicitor General. The lack of female judges in the judiciary has been highlighted in Parliament multiple times and debated by prominent panels at various legal conferences. Women in the judiciary must be encouraged.
Right to Equality and the Indian Constitution: An analysis
The Constitution is the bedrock of the nation’s democratic and secular architecture. After a prolonged period of deliberations and debates, delegates of the Indian population drafted the Indian Constitution. The constitution of India lays down fundamental rights for its citizens in order to safeguard and protect basic rights that can be enjoyed by the Indian citizens. There are six fundamental rights that are given recognition by the Indian constitution, namely, right to equality, right against exploitation, right to freedom, right to freedom of religion, right to constitutional remedies and lastly the cultural and educational rights.
Article 14 of the Indian constitution lays down the foundation of the fundamental right to equality in India. Equality as a concept is very competitive in the sense that it can be thought as a way of levelling the field which further goes on to impact the well-being of all the citizens living in India. The right to equality in the Indian constitution is dealt by five articles- Articles 14, 15, 16, 17 and 18. Article 14 deals with the general provision on equality whereas Articles 15, 16, 17 and 18 engage with inequality specific to India. There are essentially three categories of equality- formal equality, equality of opportunity and the equality of outcomes. The Indian constitution isn’t biased towards any one of the categories as it has all of them engrained in it in some way or the other.
There are essentially two doctrines that have been established by the Supreme Court to test the constitutionality of different and diverse laws under Article 14. The first or the old doctrine is also known as the “classification test” and the second and the new doctrine is known as the “arbitrariness test.” This article will aim to focus on the classification test while shedding light on Tarnuabh Khaitan’s opinion of the same as being deferential to the State.
This test pushes the Court towards asking two questions, first, whether the classification made by the law in question was based on an intelligible differentia, and secondly whether the classification had a reasonable relationship with the law’s intended goal. The Supreme Court, led principally by Das J, created the classification test to establish a law’s compliance with Article 14 in its early years, inspired by US jurisprudence under the Fourteenth Amendment.
The evident premise behind these inquiries was that Article 14’s guarantee to equality is only invoked when the law classifies something. Before the categorization philosophy can be applied, there must be some sort of differential treatment between two people or groups of people.
This doctrine only applies to State activity, especially addressing vertical interactions between individuals and the State (though it does cover interactions between two State bodies). Horizontal ties between private individuals remain outside its purview. The reality is that the idea of classification is basically comparative, which is quite opposite to the doctrine of arbitrariness. This indicates that, before classification doctrine is used, there must be some relative differential treatment between two people or two classes. On the other side, for any major failure to establish an action on sound reasons, the doctrine of arbitrariness is asserted. In other words, as stated by Tarnuabh Khaitan in this Chapter in the Oxford Handbook of the Indian Constitution, the doctrine of classification questions unreasonable comparisons, whereas the unique contribution of the doctrine of arbitrariness is to bring in the sphere of Article 14 the concept of non-comparative unreasonability.
WHY THE TEST IS DEFERENTIAL TO THE STATE
Tarunabh Khaitan in his Chapter in the Oxford Handbook of the Indian Constitution projects the idea that a highly deferential, astonishingly constrained, and formalist principle for State action is the basis of the classification doctrine, which is designed to address unjustified comparisons among individuals and classes of individuals. He basis the idea of the doctrine being highly deferential in the view that the Court gives the claim of the State a great deal of weight on what the facts are, how the facts should be assessed and whether or not specific standards have been broken.
The argument that the doctrine is deferential is sound in nature and through the supreme court rulings that this article will examine in the next section, it will become clearer that the Supreme Court has went on to provide a leeway to the State when it comes to establishing a violation of the fundamental right to equality under Article 14. A tight screening of the test of proportionality appears to have been used in the Court in many cases, but there are compelling grounds to believe that these declarations were in many of these cases only theatrical covers in which a very deferent evaluation norm could still be used. Furthermore, the fact that the doctrine is limited and formalistic only goes on to add to its deferential nature as by limiting the number of questions that this doctrine can present the Supreme Court fails to go into depth of how the right to equality was violated to start with. The ideology is officialist since the two questions generally satisfy the prima facie wording of the regulation and overlook its influence on people and groups in the real world. It is important to take into consideration the fact that the Supreme Court is capable of expanding the questions that can be asked through this doctrine that could eventually result in a larger burden of pressure on the State to prove why a given right has been violated which in turn could then further result into a lesser deferential doctrine that isn’t biased towards anyone of the sides.
SUPREME COURT RULINGS
The first case that this essay will look into for substantiating the stance of the classification doctrine being deferential is Air India Vs Nargesh Meerza (1981) . In this case the Supreme Court in light of a declaration made by the Central Government itself states that,
“[T]he declaration is presumptive proof of the fact that in the matter of allowances, conditions of service and other types of remuneration, no discrimination has been made on the ground of sex only. The declaration by the Central Government, therefore, completely concludes the matter.”
Essentially, the Court held that the various earnings of air hostesses and flight pursers did not have sex as presumptive proof as a basis of a government declaration. It is imperative to understand that the court gave this statement on just the basis of a government declaration which stated that the categories of employees are divided on the basis of different conditions of service and not on the difference of sex. The court in this case basically relies on the central government’s declaration using the classification doctrine without doing any investigation of its own. The above statement made by the court is clearly problematic in nature and highlights the deferential treatment of the doctrine towards the State.
In the case of Tamil Nadu Electricity Board vs R, Veeraswamy And Ors (1999) ¸ the supreme court was yet again seen applying the doctrine of classification in favour of the State. The supreme court in this case failed to categorise the people who retired before 1st July 1986 and those who retired after the date into one class and due to this reason, the people who retired before 1st July 1986 wouldn’t be able to avail the benefits of the new pension scheme. The court in this case gives a lot of room and attention to the grounds provided by the state which clearly highlight a deferential treatment. the court can be seen stating that,
“The appellant-Board had given well-founded reasons for introducing the pension scheme from 1.7.1986 including financial constraints, a valid ground. We are of the view that the retired employees (respondents), who had retired from service before 1.7.1986 and those who were in employment on the said date, cannot be treated alike as they do not belong to one class”
Further, a limiting and formalistic approach can also be seen applied by the Supreme Court while analysing The Kerala Education Bill as the Court refused to investigate the designation of the Bill to target Christian schools.
The doctrine of classification is the oldest doctrine which helps in determining whether a law has been violative of article 14. However, the doctrine carries with it many limitations which also includes it being deferential towards the state. The problems with the doctrine are further solidified by the subsequent Supreme Court decisions which fail to recognise and improvise the limitations of the doctrine. The deferential treatment towards the state eventually results that is discriminatory towards the citizens of India. It is high time that the limitations of the classification doctrine are recognised, and a more solid and coherent doctrine is established which keeps in mind both the interests of the citizens and the state.
The brawl to brace arms: Challenging the Vermont carry of Texas
In the United States, gun regulation has always been a tendentious affair. Fuel was once again added to fire when Gov. Greg Abbott signed the House Bill of 1927 presented in the Texas legislative session 2021, applauding the ‘permit less carry’ or ‘constitutional carry laws’. It has been postulated by proponents that it is the reinstitution of the second amendment of the US Constitution, which is contentious in itself. The opponents and even some intellectuals are asserting that this permit less carry in the entire state can lead to precariousness as this enactment is propounding a direct threat to human life. Texas arm regulations lucidly inculcates the idea that possession of arms by citizens are subjected to justifiable restrictions which would further be surveilled by the state to avert the misdemeanors or violation of rights of individuals.
SECOND AMENDMENT TO THE US CONSTITUTION: AN ANTINOMY OF AMERICAN CONSERVATISM
The Second Amendment of the United States Constitution, 1791 reads: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”, thereby meaning that the people have the right to possess arms for a rightful purpose, such as self- defense and state militias shall not infringe the rights of the civilians owing to the security of the state.
In District of Columbia v. Heller, the US Supreme Court held that the “Second Amendment to the United States Constitution protects an individual’s right to keep and bear arms, detached from service in a militia, for conventionally lawful purposes, such as self-defense, and that the District of Columbia’s handgun embargo and condition that lawfully owned rifles and shotguns be kept ‘unloaded and disassembled or bound by a trigger lock’ contravened with the said guarantee. It also stated that the right to bear arms is not absolute and that it would be regulated and controlled by the state.” This was the foremost Supreme Court case to settle the acrimony as to whether the Second Amendment protects an individual right to keep and bear arms for self-defense or it was planned to grant greater power to the state militias.
In McDonald v. City of Chicago, the Supreme Court of the United States held that the “right of an individual to ‘keep and bear arms’, as protected under the Second Amendment, is incorporated by the ‘Due Process Clause’ of the Fourteenth Amendment and is thereby enforceable against the states, in lieu of use of arms for legitimate purposes.” This judgement sorted out the miasma of uncertainty that was created in the wake of District of Columbia v. Heller.
STATE RIGHT TO BEAR MUNITIONS IN TEXAS
Article 1, § 23 of the Texas Constitution states: “Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime”, thereby intending that every citizen shall have the right to hold on to arms for a legitimate purpose and Legislature has the authority to undertake measures to stave off felony, and thus imposing fair- minded curtailment on the right to retain arms.
According to Article I, § 13 of the Texas Constitution, carrying of arms is not absolute and is subjected to reasonable restrictions. It also states that the Legislature has power to regulate holding of firearms and thus laws prohibiting the carrying of arms in specified situations does not infringe the right to “bear arms”. The same was reiterated by the Supreme Court of Texas in the case of English v. State and State v. Duke.
HISTORICAL OVERVIEW OF THE CONSTITUTIONAL CONCEALED CARRY IN THE US
In 1973, Texas imposed a “duty to retreat” legislation pertaining to claims of self- defence. In order to validate the use of force, an individual had to show imminent danger and reasonable threat to their life. However, force used must be proportionate to the harm or threat faced. This condition under common law is referred to as a “retreat to the wall” essential.
But in 1995, Texas law slackened, putting on a “castle doctrine,” which states that an individual has a right to carry arms in public and doesn’t need to do a lord lucan if it’s done for the purpose of self- defence. This law bolstered in 2007, when the Texas Legislature stated that “individuals didn’t need to beat a hasty retreat at all, rather they just needed to evince that they had a legal right to be present during the act of defense.” This approach is commonly referred to as a “Stand Your Ground” law.
In 2015, The state Legislature permitted college students, faculty and visitors across Texas to carry properly licensed guns on state university campuses and openly carry arms in a lanyard.
CONSTITUTIONAL CARRY: THE HOLY GRAIL OF GUN LAWS
The commencement of September 2021 would be recorded in the chronicles of Texas. After years of eschewing what some proponents of the second amendment of the US called the ‘crowning glory’ of gun laws, the Republican in Texas legislature enacted new legislation which “authorized Texans to carry or possess pistols or handguns without any licenses.” Now Texas will officially be recognized as a “Second Amendment sanctuary.” The inception of this law in Texas and its immediate effect from the 1st of September has shuddered the whole world. With this legislation, Texas would be joining the group of 19 other states having “constitutional carry laws” or “permit less carry laws” and 5 other states having declared themselves “Second Amendment sanctuaries.” The constitutional carry law of Texas has been illuminated in detail below.
VERMONT CARRY: AN INTRICATE ANALYSIS
The House Bill of 1927 introduced in the 87th session of legislature 2021 has revamped the entire scenario of procuring guns in Texas. The proponents of the bill called it a ‘constitutional carry’ law. The bill was concerned with carrying of handguns or pistols openly or concealed by an individual who is 21 years or above without any state-issued license. The competency required is that individuals should not be expelled from state or federal law from possessing firearms. In a nutshell, it can be asserted that legislation rescinded the provision of attaining a state issued license which necessitated proficiency examination with background check. However, those who want licenses can opt for it from the Texas Department of Public Safety (TDPS) after the new law commences. The extra-aid which the licensee would get after the commencement of this law is that some places are interdicted for non-licensees, but are unlatched for licensees. Another characteristic of this law is that non-licensees are not authorized to cross the extremities of the state with guns or pistols. It means that the applicability of the law is confined to the state of Texas.
UPSHOT OF THE GUN- RIGHTS MOVEMENT SWEEPING TEXAS
According to the opponents of the bill, it foisted inexorable menace to human society and their entitlements. The gun laws in Texas were not very stringent since 1995, Texans were authorized to possess pistols or handguns in the public sphere, but licenses were inescapable for the same. If we examine the chronicles of Texas, it can be tracked down that this legislation can prove to be a lethal weapon which can create cataclysmic situations in the coming future. In Texas, back to back mass shootings have been unearthed, a very recent one that transpired at El Paso and Ohio in 2019, trembled the whole world. After the eventuality, some Republican leaders pledged to commend gun laws and instigated stern monitoring policies for the same. Yet the legislative session came with something bolt from the blue which can lead to disastrous outcomes. This legislation not only poses endangerment to civilians, but state authorities, including police officers’ life, are also at stake. It seems that this legislation is pig in a poke as without any doubt it would be escalating the crime rate.
The world’s most developed nation is in a state of trepidation due to the enactment of a legislation which has the potential to cause a catastrophic state of affairs in the near future. DaShanne Stokes truly states “When a country with less than five percent of the world’s population has nearly half of the world’s privately owned guns and makes up nearly a third of the world’s mass shootings, it’s time to stop saying guns make us safer”, thereby accentuating the fact that the newly enacted legislation of Texas, not only jeopardize national security by escalating the casualties of mass shootings, but also account for gross violation of human rights. As we all know, the lustre of a nation lies not in being more astucious than other nations, but rather in the propensity to overhaul its glaring mistakes, hence both the centre and the state should leave no stone unturned to enact stern arm laws before this issue becomes refractory.
Prachi Tripathi, a second year law student at Jamia Millia Islamia, has great enthusiasm for reading and writing on contemporary legal developments and challenges happening around.
Zubia Rehan is a second year law student at Jamia Millia Islamia. A writer by day and a reader by night, she is open to new and ingenious ideas. She believes that- to be oneself in a world that is constantly trying to make us something else, is the biggest achievement.
Learning from present challenges: Time to adopt a human rights based approach to data
The recent spike in data breach cases around the world certainly makes us ponder its impact on the important aspect concerning human rights. Data being the new currency of the modern world is deeply integrated with Sustainable Development Goals (SDGs) which seek to realize the human rights of all. It is an affirmative fact that humans are experiencing a phase of triple transition from the resource economy to the digital economy, from centralized governance to multi-governance, and from industrial civilization to the phase of digital civilization. This significant transformation in the journey of Human Rights essentially paves the way for the reconstruction of the system of rights and interests.
Since 2020, high profile cyberattacks and state sponsored attempts at security breaches have been steadily increasing which puts at stake the protection of human rights because the personal data collected or sensitive personal data collected should only be handled with the express consent of the concerned individual according to Art 6 (1) (a) of GDPR. In the recent case of the United States, the Federal Communications Commission affirmed an investigation for the data breach as disclosed by T-Mobile U.S. Inc. which impacted more than 47 million customers. This incident witnessed a breach of personal data, including social security numbers and license information of approximately more than 40 million users. This T-Mobile’s data breach is the latest high profile cyber-attack in the current times because the digital thieves took the advantage of weak security because of work-from-home policies triggered due to COVID-19 Pandemic. No sector is immune against the increasing cases of cyber theft as it has engulfed the airline industry like in the case of Indigo’s servers were hacked and the company contemplated that the stolen information can be sold by hackers on public websites. Within a span of six months, India witnessed a massive data breach in Air India. The attack compromised personal data (such as Name of the passenger, contact information, passport information) of millions of its customers. To prevent such incidents, comprehensive data protection laws are imperative for the protection of human rights predominately the right to privacy, and also many other related freedoms that depend on one’s ability to make choices about how and with whom information is to be shared. As a robust measure to this problem, there was an enactment of the EU General Data Protection Regulation is one of the comprehensive attempts globally to regulate the collection as well as the use of personal data by both the government and the private sphere. The new safeguard for the regulations is particularly focused on the importance of human rights in the digital age. Recent scandals involving Facebook and Cambridge Analytica and the incidents which were discussed in the light of data breaches have driven calls for greater control over how personal data is collected and how it should be used further. The objective of GDPR is to avert abusive intrusions in the digital age through data, it is the personal data which is intrinsically connected to people’s private lives which in turn preserves a range of other human rights. However, there are certain conundrums associated with the GDPR, one of them is the broad ambit of ‘legitimate interests’ wherein the organisations are permitted to use the data collected without the consent provided legitimate interest of the entity outweighs person’s rights and freedoms. Therefore, such ambiguous terms of GDPR can invite a stream of court cases against enforcement actions. There is essentially a need for all the countries to adopt a comprehensive data protection law that place human rights at the central point. Though the GDPR is imperfect in some places, but it is certainly one of the fundamental data protection regimes in force. The private sector’s treatment of personal data should be regulated by the Governments with transparent laws, and restricting the collection and use of people’s data to protect their rights. There should be data collection for accountability and accountability in data collection, once this particular factor is established and implemented on the part of the State then most of the cases can get reduced. To make this data for accountability more concrete in nature there was a recommendation put forward by OHCHR suggesting that a framework of structural process and outcome indicators are beneficial to progress towards Human Rights standards and this particular framework can be developed by striking a collaborative work between human rights experts and the statisticians.
The digital space should be construed differently than the physical space attributed to its borderless nature. Therefore, there should be a separate body for adjudicating all the data breach and allied matters at the international forum by constituting Experts (Human rights specialists, data professionals, statisticians) to expedite such massive data theft cases. Though it will invite some administrative expenses and inconveniences but as the saying goes no pain, no gain.
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