It is quite significant to see that the Supreme Court in a righteous, recent, rejuvenating, refreshing and remarkable judgment titled Krishna Lal Chawla Vs State of U.P. in Criminal Appeal No. 283 of 2021 [Arising out of S.L.P. (Crl.) No. 6432/2020] delivered on March 8, 2021 in exercise of its criminal appellate jurisdiction has minced just no words to observe elegantly, effectively and eloquently that the Magistrates and Trial Judges have as much, if not more, responsibility in safeguarding the fundamental rights of the citizens of India as the highest court of the land. It is thus most ostensible that the Apex Court has given prime importance to the role of the lower judiciary in dispensation of justice and in preventing abuse of criminal court process. Very rightly so!
To start with, the ball is set rolling in para 2 of this notable judgment authored by Justice Mohan M Shantanagoudar for himself and Justice R Subhash Reddy wherein it is put forth that, “This appeal arises out of final order and judgment of the High Court of Judicature at Allahabad (hereinafter, ‘High Court’) dated 28.09.2020, dismissing the Miscellaneous Petition No. 2561 of 2020 filed by Appellants herein praying for quashing of the following orders:
i) Order dated 4.04.2019 of Learned Additional Chief Judicial Magistrate (hereinafter, ‘Magistrate’) in Complaint Case No. 2943/2018 issuing summons against the Appellants;
(ii) Order dated 13.01.2020 of the Ld. Additional District and Sessions Judge, Meerut (hereinafter, ‘Sessions Judge’) in Criminal Revision No. 202/2019, dismissing the Appellants’ revision application against the aforesaid summoning order.
While elaborating on the facts of the case, the Bench then elucidates in para 3 stating that, “The brief facts leading to this appeal are as follows:
3.1 The Appellants and Respondent No. 2 are neighbours. The genesis of the proceedings before us lies in a physical altercation that took place between the Appellants and the Respondent No. 2 and his wife on 5.08.2012. While the occurrence of such an altercation is an admitted fact between the parties, the details thereof form the crux of this prolonged litigation.
3.2 On 5.08.2012, the Respondent No. 2 filed a Non-Cognizable Report (NCR) No. 158/2012 against the Appellants alleging offences under Sections 323, 504 and 506, Indian Penal Code, 1860 (hereinafter, ‘IPC’). It was his case that the Appellants came to his house, beat him and his wife with iron rods and threatened to kill them.
3.3 The son of Appellant No. 1 also filed information on 5.08.2012, which was registered as Non-Cognizable Report (NCR) No. 160/2012 with the Daurala Police Station, alleging offences under Sections 323, 504 and 506, IPC against the Respondent No. 2 and his wife. This Report counter-alleged that the Respondent No. 2 and his wife came to the Appellant’s house, beat them up with wooden sticks and iron rods, and threatened to kill their family.
3.4 It seems that even prior to the alleged occurrence, there were disputes between the parties in 2006. A mutual settlement took place on 6.02.2006 by which Respondent No. 2 agreed to pay a penalty of Rs. 3,000/ to the Appellant No. 1. Subsequently, in another dispute, on 21.12.2013, the Special Chief Judicial Magistrate imposed a penalty of Rs. 1500/ on Appellant No. 4. Be that as it may, the fact remains that the parties have been at loggerheads from 2006 onwards. It appears that they have been fighting litigations on one pretext or the other since 2006. Though they were agriculturists and neighbours, peace did not prevail between them, which resulted in a number of cases being lodged by them against each other.
3.5 The Appellants filed an application under Section 155(2) of the Code of Criminal Procedure, 1973 (hereinafter, ‘CrPC’) before the Magistrate on 27.04.2017, almost 5 years after the alleged incident, seeking permission for the police to investigate NCR No. 160/2012. The learned Magistrate directed that NCR No. 160/2012 filed by the Appellants be registered as FIR in Crime No. 283/2017. Investigation was conducted, and on 17.09.2017 a charge sheet was filed against the Respondent No. 2 and his wife under Sections 323, 325, 504 and 506 of the IPC. Subsequently, the Magistrate framed charges against Respondent No. 2 and his wife. There is nothing on record to show that even a single witness has been examined till date, though charges were framed by the Magistrate long back. Thus, there has been considerable delay in these proceedings, during both the investigation and trial stages.
3.6 Being unsatisfied with the allegations made and charge sheet filed against him, the Respondent No. 2 instituted a fresh private complaint against the Appellants under Section 200 of CrPC in Complaint Case No. 2943 of 2018 in respect of the very incident that took place on 5.08.2012. This private complaint was filed only on 11.05.2018, that is about six years from the date of alleged incident. In the private complaint, not only new allegations were added but all allegations are wider and different from the averments made in NCR No. 158/12, though the incident is the same as of 5.08.2012 and between the same parties. It may not be necessary for us to narrate the contents of the private complaint inasmuch as we find and have satisfied ourselves that the allegations made in the private complaint are absolute material improvements over the allegations in NCR No. 158/12. Among other things, not only three additional eye witnesses are induced in the private complaint, but allegations of fraud, injury to bull, forging of affidavit etc. which were found in the 2012 complaint are also found in the private complaint. The private complaint for the first time mentions commission of offences under Section 429, IPC and Sections 10 and 11 of the Prevention of Cruelty to Animals Act, 1960. It is an admitted fact that Appellant No. 4 had inflicted injury on Respondent No. 2’s bull on 26.09.2011, for which Appellant No. 4 had voluntarily confessed and accepted penalty of Rs. 1,500 from the Magistrate as mentioned supra. Be that as it may, we see no reason why Respondent No. 2 chose to rehash this incident in the private complaint given that Appellant No. 4 has already been convicted for the offence, and it is of no relevance to the present case.
Curiously, the Magistrate was pleased to issue process against the Appellants based on this vexatious private complaint, which came to be confirmed by the Learned Sessions Judge in the impugned order. The Learned Sessions Judge has thus not only misunderstood Section 200, CrPC and its scope but also made a new case in favour of Respondent No. 2 by reading Section 506 Part II, IPC which is punishable by 7 years in the place of Section 506, IPC, probably only to bring the private complaint within the prescribed period of limitation under Section 468 CrPC. It is nobody’s case that the offence under Section 506(ii) has taken place, which means that the Courts took extra interest to improve the case of the respondent/complainant.
This appeal is filed challenging both the orders of the Magistrate as well as the Sessions Judge in respect of issuance of process, as mentioned supra.”
Be it noted, the Bench then observes in para 9 that, “It is also pertinent to note that as on 5.8.2012, Appellant No.1 was a 76 year old man; Appellant No. 2 was suffering from epileptic seizures; and Appellant No. 4 was of unsound mind. There is no equity in allowing them to be dragged into criminal proceedings pertaining to a petty offence, instituted 6 years after the alleged incident. The sword of Damocles cannot be allowed to forever hang on their heads, falling unpredictably at the whims of a litigant seeking to harass and persecute at will. We gain strength in our conclusions from Article 21 of the Constitution, which encapsulates the right to a speedy trial. This right has been interpreted to include not only the actual trial before the Court, but also the proceeding stages of inquiry and police investigation as well (Vakil Prasad Singh v. State of Bihar, (2009) 3 SCC 355; Abdul Rehman Antulay & ors. v. R.S. Nayak & anr., (1992) 1 SCC 225).”
As a corollary, it is then stated by the Bench in para 10 that, “The sum of the above circumstances and precedents leads us to what we see as an inevitable conclusion. That Respondent No. 2’s institution of the fresh complaint case in 2018 under Section 200 CrPC was a concerted effort to mislead the Magistrate with the oblique motive of harassing the Appellants with a frivolous and vexatious case against them. That the same was a counter-blast to the charge sheet dated 17.09.2017 filed against Respondent No. 2 and his wife in the case registered by the Appellant. The history of ill-will and malice between the parties leads further credence to Respondent No. 2’s motivations for tying up the Appellants in frivolous and harrowing criminal litigation, long years after the alleged incident. Respondent No. 2’s conduct in filing a delayed complaint case, suppressing material facts, and utilising fresh proceedings to materially improve on his earlier version, in totality, amounts to gross abuse of the process of court.”
ROLE OF THE LOWER JUDICIARY IN PREVENTING ABUSE OF COURT PROCESS
Truly speaking, the Bench then is gracious enough to concede in para 11 that, “We find it imperative to observe that this is a case that should not have been allowed to reach as far as this Court. The justice dispensation machinery in India is plagued with backlogs, with 70% of the pendency before the subordinate courts being on the criminal side. [Roshni Sinha, ‘Examining pendency of cases in the Judiciary’, PRS INDIA (August 8, 2019)]. A significant factor in this backlog is the vast mass of frivolous litigation instituted year after year by litigants with an intent to use the courts of justice for their own mischievous ends. Curtailing such vexatious litigation is, thus, a crucial step towards a more effective justice system – a step that cannot be taken without the active involvement of the lower judiciary, especially in criminal proceedings.”
While underscoring the pivotal role of a Magistrate in the functioning of the criminal justice delivery system, the Bench then points out in para 12 that, “Immediately after the criminal justice system is set in motion, its course is almost entirely dependent on the judicial application of mind by the Magistrate. When a police complaint is filed on the commission of a cognizable offence under Section 154 CrPC, the Magistrate decides if the charge against the accused person is made out before the trial begins. Separate procedure is prescribed if the complaint under Section 200 CrPC is filed. The aforesaid provisions make it abundantly clear that the Magistrate carries the stream of criminal proceeding forward after it is set in motion by the informant/complainant. Consequently, and automatically, the Magistrate also carries the responsibility for ensuring this stream does not carry forward in cases where it should not.”
While adding a word of caution for the Magistrates, the Bench then minces no words in holding in para 13 that, “The aforesaid powers bestowed on the Magistrate have grave repercussions on individual citizens’ life and liberty. Thus, these powers also confer great responsibility on the shoulders of the Magistrate – and must be exercised with great caution, and after suitable judicial application of mind. Observations in a similar vein were made by this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749:
“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.””
This Court, thus, clearly emphasized that the power to issue a summoning order is a matter of grave importance, and that the Magistrate must only allow criminal law to take its course after satisfying himself that there is a real case to be made.”
While continuing in a similar vein, the Bench then specifies in para 14 that, “Similarly, the power conferred on the Magistrate under Section 202, CrPC to postpone the issue of process pursuant to a private complaint also provides an important avenue for filtering out of frivolous complaints that must be fully exercised. A four-Judge Bench of this Court has eloquently expounded on this in Chandra Deo Singh v. Prokash Chandra Bose & Anr., AIR 1963 SC 1430:
“7. …No doubt, one of the objects behind the provisions of Section 202 CrPC is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant…”
Thus, it is clear that, on receipt of a private complaint, the Magistrate must first, scrutinize it to examine if the allegations made in the private complaint, inter alia, smack of an instance of frivolous litigation; and second, examine and elicit the material that supports the case of the complainant.”
Simply put, the Bench then enunciates in para 15 that, “It is said that every trial is a voyage of discovery in which the truth is the quest. In India, typically, the Judge is not actively involved in ‘fact-finding’ owing to the adversarial nature of our justice system. However, Section 165 of the Indian Evidence Act, 1872 by providing the Judge with the power to order production of material and put forth questions of any form at any time, marks the influence of inquisitorial processes in our legal system. This wide-ranging power further demonstrates the central role played by the Magistrate in the quest for justice and truth in criminal proceedings, and must be judiciously employed to stem the flow of frivolous litigation.”
Needless to say, it is then quite significantly stated in para 16 that, “All of this leads to one inescapable conclusion. That the Trial Judge has a duty under the Constitution and the CrPC, to identify and dispose of frivolous litigation at an early stage by exercising, substantially and to the fullest extent, the powers conferred on him. This Court has earlier emphasized on the high degree of responsibility shouldered by the trial Judges in All India Judges’ Association v. Union of India, (1992) 1 SCC 119. Ranganath Misra CJ (as he was then) writing for himself and two others stated:
“42. The trial Judge is the kingpin in the hierarchical system of administration of justice. He directly comes in contact with the litigant during the proceedings in Court. On him lies the responsibility of building up of the case appropriately and on his understanding of the matter the cause of justice is first answered. The personality, knowledge, judicial restraint, capacity to maintain dignity are the additional aspects which go into making the Court’s functioning successful.””
More significantly, the Bench then minces no words to point out in para 17 that, “Frivolous litigation should not become the order of the day in India. From misusing the Public Interest Litigation jurisdiction of the Indian courts to abusing the criminal procedure for harassing their adversaries, the justice delivery system should not be used as a tool to fulfil personal vendetta. The Indian judiciary has taken cognizance of this issue. In 2014, this Court elucidated as follows, the plight of a litigant caught in the cobweb of frivolous proceedings in Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470:
“191…One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part. He pays for the litigation, from out of his savings (or out of his borrowings), worrying that the other side may trick him into defeat, for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his…”
While the Court’s ruling pertained to civil proceedings, these observations ring true for the criminal justice machinery as well. We note, with regret, that 7 years hence, and there has still been no reduction in such plight. A falsely accused person not only suffers monetary damages but is exposed to disrepute and stigma from society. While running from pillar to post to find a lawyer to represent his case and arranging finances to defend himself before the court of law, he loses a part of himself.”
Most significantly, the Bench then resultantly also observes in para 18 that, “As aforesaid, the trial courts and the Magistrates have an important role in curbing this injustice. They are the first lines of defence for both the integrity of the criminal justice system, and the harassed and distraught litigant. We are of the considered opinion that the trial courts have the power to not merely decide on acquittal or conviction of the accused person after the trial, but also the duty to nip frivolous litigations in the bud even before they reach the stage of trial by discharging the accused in fit cases. This would not only save judicial time that comes at the cost of public money, but would also protect the right of liberty that every person is entitled to under Article 21 of the Constitution. In this context, the trial Judges have as much, if not more, responsibility in safeguarding the fundamental rights of the citizens of India as the highest court of this land.”
For the sake of clarity, the Bench then also makes it clear in para 19 that, “As recorded by us above, the present controversy poses a typical example of frivolous litigants abusing court process to achieve their mischievous ends. In the case before us, the Magistrate was aware of the significant delay in the filing of private complaint by Respondent No. 2 and of the material improvements from the earlier NCR No. 158/2012 which were made in the private complaint. It was incumbent on the Magistrate to examine any possibility of abuse of process of the court, make further enquiries, and dismiss the frivolous complaint at the outset after judicial application of mind.”
Adding more to it, the Bench then observes in para 20 that, “However, this was not done – the Magistrate issued process against the Appellants by order dated 4.04.2019, and this controversy has now reached this Court for disposal.”
Quite remarkably, the Bench then very rightly observes in para 21 that, “It is a settled canon of law that this Court has inherent powers to prevent the abuse of its own processes, that this Court shall not suffer a litigant utilizing the institution of justice for unjust means. Thus, it would be only proper for this Court to deny any relief to a litigant who attempts to pollute the stream of justice by coming to it with his unclean hands. Similarly, a litigant pursuing frivolous and vexatious proceedings cannot claim unlimited right upon court time and public money to achieve his ends.”
Please read concluding on thedailyguardian.com
It also cannot be just glossed over that it is then very rightly observed in para 22 that, “This Court’s inherent powers under Article 142 of the Constitution to do ‘complete justice’ empowers us to give preference to equity and a justice oriented approach over the strict rigours of procedural law (State of Punjab v. Rafiq Masih (Whitewasher), (2014) 8 SCC 883). This Court has used this inherent power to quash criminal proceedings where the proceedings are instituted with an oblique motive, or on manufactured evidence (Monica Kumar (Dr.) & anr. v. State of Uttar Pradesh, (2008) 8 SCC 781). Other decisions have held that inherent powers of High Courts provided in Section 482, CrPC may be utilized to quash criminal proceedings instituted after great delay, or with vengeful or malafide motives. (Sirajul & ors. v. State of Uttar Pradesh, (2015) 9 SCC 201; State of Haryana v. Bhajan Lal, AIR 1992 SCC 604). Thus, it is the constitutional duty of this Court to quash criminal proceedings that were instituted by misleading the court and abusing its processes of law, only with a view to harass the hapless litigants.”
As a corollary, the Bench then states in para 23 that, “In this Court’s quest for complete justice, and to bring peace between the parties, who are fighting various litigations since 2006, we exercise our powers under Article 142 to quash all the litigations between the parties arising out of this incident.”
As anticipated, the Bench then holds in para 24 that, “The impugned judgment of the High Court dated 28.09.2020 in Miscellaneous Petition No. 2561 of 2020 is set aside.”
Now coming to para 25, the Bench then holds briefly in para 25 that, “The proceedings in Complaint Case No. 2943/2018, including the order of summons against the Appellants dated 4.04.2019 be quashed.” It is then held in para 26 that, “Further, proceedings pursuant to NCR No. 158/2012 dated 5.08.2012 filed by Respondent No. 2 also be quashed, in order to foreclose further frivolous litigation.”
Moving on, it is then held aptly in para 27 that, “Any other criminal cases between the parties initiated by them in relation to the incident dated 5.08.2012, including the criminal proceedings arising from NCR No. 160/2012 (Crime No. 283/2017) instituted by the Appellants, are quashed in exercise of our powers under Article 142 of the Constitution, in the interests of giving quietus to these criminal proceedings out of a petty incident 9 years ago.” Finally, it is then held in para 28 that, “The Appeal is allowed in the aforesaid terms.”
To conclude, the bottom-line of this latest, learned, laudable and landmark judgment is that the Apex Court concedes gracefully that Magistrates and Trial Judges also have responsibility in safeguarding citizens fundamental rights. Para 18 sums up the crux of this notable judgment which now merits no reiteration. All the Magistrates and Trial Court Judges must pay full attention to what the Apex Court has ruled in this leading case and always bear it in mind that, “They are the first lines of defence for both the integrity of the criminal justice system, and the harassed and distraught litigant” as has been stated quite uprightly in para 18 as stated above! The Trial Judges must also bear in mind always that, “They have as much, if not more, responsibility in safeguarding the fundamental rights of the citizens of India as the highest court of this land” as has been summed up in para 18 and act accordingly! There can certainly be no denying or disputing it!
Sanjeev Sirohi, Advocate,
The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.
For the latest news Download The Daily Guardian App.
Dhanbad judge death: Court wants speedy, fair and professional probe; Jharkhand HC seeks SIT report on 3 Aug
It is most shocking to see that an upright, fearless and dedicated Judge named Uttam Anand has been brutally murdered by goons on July 28 in a three wheeler vehicle which has shocked the conscience of the entire nation except those politicians who feel that it is too trivial a matter to be discussed in Parliament and what is most serious is that their phones were hacked and this has seriously invaded their exclusive privacy. No doubt, hacking of phone is an illegal act and those who are behind it must be dealt with in accordance with law but does this mean that Opposition should hold Parliament to ransom and tear papers in Parliament, snatch it from Minister and tear it, shout and not allow Parliament to function and ignore the brutal murder of ADJ (Additional District Judge) Uttam Anand as a “routine affair”? Why it makes no difference to our Opposition MPs and why they are not ready to mourn the brutal murder of Uttam Anand and demand a thorough probe into it?
Why are they concerned only with mobile snooping and phone snooping? If they have nothing to hide then why are they so perturbed? Is Pegasus snooping row a more important issue or brutal murder of an ADJ which is nothing but a direct attack on our judiciary itself? Does the life of a Judge signify nothing? I really pity at all those MPs who are not allowing Parliament to function smoothly and who are not at all concerned with the brutal and ghastly murder of this fearless Judge who placed his values above his own safety!
It is however good to note that senior lawyer named Vikas Singh who is President of Supreme Court Bar Association, Chief Justice of India NV Ramana and Jharkhand High Court have all taken this key issue most seriously for which they must be lauded. The Division Bench of Jharkhand High Court comprising of Chief Justice Dr Ravi Ranjan and Justice Sujit Narayan Prasad has taken suo motu cognizance of ADJ Uttam Anand’s death and has directed the Special Investigation Team formed to probe into the incident, to submit its report by August 3. The Division Bench in its oral order dated 29 July, 2021 first and foremost points out in para 1 that, “The matter has been taken up through video conferencing.”
To put things in perspective, the Bench then points out in para 2 that, “A letter has been received by the In-Charge Registrar General written by the Principal District and Sessions Judge, Dhanbad bearing letter No.2788-G/2021 dated 29.07.2021 intimating incidence regarding sad and unfortunate demise of Shri Uttam Anand, District and Additional Sessions Judge-VIII, Dhanbad on 28.07.2021. The content of the aforesaid letter is reproduced hereunder:- “LETTER NO. 2788-G/2021 From : Ram Sharma’ Principal District and Sessions Judge, Civil Court, Dhanbad. To, The Registrar General, High Court of Jharkhand, Ranchi. Dhanbad dated 29.07.2021 Subject : Intimation regarding untimely demise of Sri Uttam Anand, District and Addl. Sessions Judge-VIII on 28.07.2021. Sir, This is to bring to you kind notice that on 28th July 2021 at about 9.20 am, I was informed by the Registrar, Civil Court Dhanbad, that Sri Uttam Anand, District and Addl Sessions Jude-VIII had gone for a morning walk but did not return till now. I instructed him to contact the local police immediately and visit the nearby hospitals. The SSP Dhanbad was also informed telephonically in this regard and photograph of Sri Uttam Anand, District and Addl. Sessions Judge-VIII was also circulated to police personnels and the court staffs. During the course of search it was discovered that Sri Uttam Anand, District and Addl. Session Judge -VIII was found critically injured near Randhir Verma Chowk and was brought to PMCH Hospital. I immediately rushed to PMCH Hospital and found him dead. The attending doctors informed me that he was brought to the hospital by one Pawan Kumar Pandey and thereafter necessary treatment was given to Sri Uttam Anand and he was also put on ventilator but succumbed to his injuries. Thereafter, necessary instructions were issued to the police with regard to arrest of culprits. This is for your information and needful. Yours Faithfully Sd/- 29.7.21 Ram Sharma Principal District and Sessions Judge Dhanbad” Let letter No.2788-G/2021 dated 29.07.2021 be kept on record.”
While taking suo motu cognizance, the Bench then puts forth in para 3 that, “This Court, on the basis of the aforesaid letter as also the CCTV footage, takes suo moto cognizance of the matter treating the letter as the writ petition in the nature of Public Interest Litigation. Office is directed to register the case accordingly.” To be sure, the Bench then observes in para 4 that, “We have gone through the content of the aforesaid letter as also perused the CCTV recording of the occurrence and, therefore, called upon the learned Advocate General of the State, Director General of Police, Jharkhand, Senior Superintendent of Police (SSP), Dhanbad and Superintendent of Police (City), Dhanbad as also Mr. Rajiv Sinha, learned Additional Solicitor General of India.”
To put things in perspective, the Bench then enunciates in para 5 that, “We, during the Court proceeding, asked the Office of this Court to display the CCTV footage of the incident which has been perused by the learned Advocate General and the officers who are present today. The Senior Superintendent of Police, Dhanbad has submitted in course of hearing that two persons have been apprehended. One of them is auto-rickshaw driver and another person who was sitting in the vehicle. Interrogation is being done by the Special Investigating Team constituted by him.” While elaborating on the facts of the case, the Bench then envisages in para 6 that, “The members of the Bar have also appeared and submitted before us that the incident, in which a judicial officer has been killed, cannot be taken as a simple case of accident or murder rather the investigation is required to be conducted by the investigating agency on the angle that there may be conspiracy for the killing of the judicial officer as, according to them, the judicial officer concerned was in the seisin of very sensitive matters. It has further been submitted that it cannot be believed that this incident is a simple accident by a vehicle as the place where the incident took place is the prime location of the town of Dhanbad or it may be called as the main chowk of Dhanbad and when the concerned judicial officer was on morning walk, he was approached by autorickshaw. It would be evident from the CCTV footage that the vehicle, at the morning time when there was no traffic at all on the road took a sharp bend and approached the judicial officer who was jogging on the footpath on the left side. The auto-rickshaw came from behind and suddenly went towards the judicial officer. It slowed down when it just came beside him and then the judicial officer fell down on his left side. They have submitted that it would be more surprising to see the CCTV footage that one motor-bike rider who was coming from the opposite side of the auto-rickshaw took a u-turn and had followed the auto-rickshaw and when the concerned judicial officer has fallen, he watched the judicial officer falling down and thereafter fled away. They submitted that after watching such CCTV footage it does not appear to be an accidental death, rather it appears that it is a well conspired killing of the judicial officer that too just adjacent to the residence of the judicial officers in the town of Dhanbad. They have submitted that it is further surprising that the CCTV footage immediately went viral. Question is, when the CCTV cameras which have been installed in the municipal roads, is expected to be under the control of the district administration then how the aforesaid CCTV footage could become viral? They have also submitted that as per the newspaper report, the aforesaid auto-rickshaw has been found to be of one Sugni Devi, who in course of interrogation has apprised the investigating agency that her auto-rickshaw has been stolen. It is submitted that the occurrence is nothing but a brazen attack on the justice delivery system perhaps to give some message across the country therefore, it is a fit case where the investigation is required to be handed over to the Central Agency i.e., Central Bureau of Investigation.”
Needless to say, the Bench then while referring to eminent and senior advocate – Vikas Singh who is the President of Supreme Court Bar Association and who is actively monitoring this case points out in para 7 that, “During the Court proceeding, Mr. Vikas Singh, President of the Supreme Court Bar Association, had prayed to provide him link to appear in this case. Such link was provided to him and in pursuance thereto Mr. Singh appeared during the Court proceeding and has submitted that the incident of murder of the judicial officer is nothing but an attack on the judicial system of the country and ultimately a brazen attack of our democratic system. As such, he contended that the matter is required to be investigated by C.B.I.”
Be it noted, the Bench then observes in para 8 that, “We have put a question to the Superintendent of Police (City), Dhanbad who is heading the Special Investigating Team, that as to whether the two wheeler rider has been apprehended or not? He has replied that the two wheeler rider has not been apprehended but the persons riding the auto-rickshaw have been apprehended. We have also put query to the Senior Superintendent of Police, Dhanbad that what is the proof regarding theft of the auto-rickshaw, as has been said by Rugni Devi, the owner of the auto-rickshaw and whether the theft of that auto-rickshaw was ever been reported to any police station? Upon this the Senior Superintendent of Police has submitted that as yet it has not been verified. He further submits that he will take care of this angle and will also investigate this aspect of the matter.”
Please read concluding on thedailyguardian.com
It is also worth noting that the Bench then mentions in para 9 that, “Learned Advocate General has submitted that since the Special Investigating Team has been constituted and two vital persons have been apprehended, therefore, at this stage matter may not be handed over to the Central Bureau of Investigation otherwise it will have a demoralizing effect upon the police force of the State. He further submits that if this Court deems it fit and proper then the State is ready to appoint a high rank police officer to head the Special Investigating Team. The Director General of Police, Jharkhand has submitted in furtherance to the submission made by learned Advocate General that a higher ranking police officer of the State would lead the Special Investigating Team and he has suggested the name of Mr. Sanjay A. Lathkar, IPS, now ADG (Operation), Jharkhand. The Director General of Police, Jharkhand has submitted that he will take all sincere endeavour to get hold of real culprits as also to conduct the investigation in professional manner to surface the conspiracy, if any, in the murder of the judicial officer concerned. He has further submitted that the Special Investigating Team will surface out the entire thing since two vital persons, who were boarding the auto-rickshaw, have already been apprehended and proper investigation in a professional manner would be conducted.”
Most remarkably, the Bench then holds in para 10 that, “This Court, in view of the facts stated hereinabove and taking into consideration the fact that Special Investigating Team has apprehended two persons on 28.07.2021 as also in view of the submission made by the learned Advocate General and Director General of Police that a high rank police officer would lead the Special Investigating Team and the investigation would be conducted in a very professional manner, deems it fit and proper to permit the S.I.T. headed by Mr. S.A.Lathkar, ADG (Operation) to investigate the matter in a professional and fruitful manner. We, hereby, direct the Director General of Police, Jharkhand to immediately issue appropriate order/direction for heading the Special Investigating Team by Mr. Sanjay A. Lathkar, IPS, ADG (Operation), Jharkhand today itself. The newly appointed head of the Special Investigating Team will immediately take over the investigation and conduct the investigation in a professional manner and submit its progress report on 03.08.2021. We make it clear that this Court wants a speedy, fair and professional investigation in the matter, as such, this Court will monitor the progress of the case and that is the reason we are posting this case on 03.08.2021 to look into the progress in the matter to come to the conclusion for continuation of the investigation by the Special Investigating Team or to hand it over to the Central Bureau of Investigation. We further make it clear that apprehending a pawn is meaningless unless the conspiracy is fully uncovered and the mastermind is nabbed. Time would be essence of matter in this investigation. Delay as well as well as any flaw in investigation may eventually affect the trial adversely. We are directing the S.I.T. to submit a report on the next date of hearing. Let an affidavit be filed disclosing as to when the information regarding the occurrence was received by the police and the time when the F.I.R. was registered. Let an information be also given to us as to whether the procedure of post mortem was video-graphed or not? The Director General of Police, Jharkhand will apprise this Court about the graph rate of the crime in the State of Jharkhand after January, 2020.”
Going ahead, the Bench then states in para 11 that, “Let this matter be posted on 03.08.2021 at the top of the list.”
What’s more, the Bench then further adds in para 12 that, “The required affidavits, as directed, shall be filed along with progress of investigation including the copy of the post-mortem report and F.I.R. under sealed cover, on or before the next date of hearing.”
Finally, the Bench then holds in para 13 that, “Let this order be communicated immediately to the learned Advocate General of the State who will ensure its communication to the concerned officers forthwith.” One is quite sure that the truth will definitely come out as to who all are behind this dastardly murder of the great soul named ADJ Uttam Anand. The dogged determination with which Jharkhand High Court is pursuing the case and so also Vikas Singh who is President of Supreme Court Bar Association and is actively taking most keen interest in the case and so also the CJI NV Ramana who himself spoke to Dr Ravi Ranjan who is Chief Justice of Jharkhand High Court and has taken suo motu cognizance of this case and has said that it would want to be appraised of the status of investigation and so it is just not possible that those involved can get away under any circumstances! It needs no Albert Einstein to conclude that our Judges have to be safeguarded from violent attacks because if this is not done then Judges will fear for their personal safety and procrastinate in front of powerful criminals and this we see also to some extent in our country even though many Judges are still upright and one such Judge named Uttam Anand we saw being brutally murdered in broad daylight! This should never have happened but it has happened in Jharkhand! One only fervently hopes that the culprits are quickly brought to justice and all those who are behind it are also brought to book and are not left scot free under any circumstances!
It will not be an exaggeration to say that our whole system has become rotten and it must be addressed in totality. Just band aid solution like punishing only the real killers of ADJ Uttam Anand is not the real solution. All those who are behind it and all such criminals with several serious criminal cases pending against them and yet sitting most comfortably in Parliament and State Assemblies with some even becoming Law Ministers themselves or their juniors like Minister of State must be thrown out right now whether in the Centre or in the States!
This alone will be the best tribute to the departed Judge named Uttam Anand! If politicians don’t act themselves now it is the Supreme Court which must now immediately swing into action and take this as nothing but as a direct assault on the judiciary itself and it is most comforting also to note that the top court as also the Jharkhand High Court have both taken it most seriously! It brooks no more delay anymore! How many more Judges are we waiting to be killed in such callous manner by the ruthless criminals? Truth must come out at the earliest and those behind it deserve to be hanged publicly at the earliest! There cannot be any mercy for them! No way! No question!
Will India get another SC bench for southern states?
The councils stated that they made the demand in light of the problems that persons from the South encounter in conducting cases in Delhi, both in terms of accessibility and cost. A delegation of top officials from the Bar Councils of five southern states – Karnataka, Tamil Nadu, Telangana, Andhra Pradesh, and Kerala – met with Chief Justice of India NV Ramana and Vice President M Venkaiah Naidu to advocate for the establishment of a Supreme Court of India bench in South India. The Bar Councils of Telangana, Andhra Pradesh, Tamil Nadu, Karnataka, and Kerala came together in January this year and overwhelmingly demanded a Supreme Court bench in south India. It was unanimously resolved to request all the State Legislative Assemblies and Legislative councils to pass resolutions and send them to the center seeking a bench of the apex court in South India.
In November 2019, MDMK General Secretary and Rajya Sabha MP Vaico addressed the long-standing demand for the Supreme Court to establish a bench in South India for the convenience of litigants in the Upper House of Parliament. Vaiko had stated that a Supreme Court bench in Chennai will help the supreme court’s backlog of litigation. He said that the high expense of travel to New Delhi was prohibiting marginalized and disadvantaged people in South India from accessing the Supreme Court.
According to Justice Krishna Iyer, there was no rationale for choosing Delhi as the Supreme Court’s exclusive venue. The tyranny of the south by the north was mirrored in the centralised system. Suggested that the Supreme Court be divided into many benches, similar to how several High Courts do it. Several additional proponents of decentralisation note to two major issues that they feel regional benches can address.
The Supreme Court hears only a few matters from the subordinate courts. Due to the Supreme Court’s geographical concentration in Delhi, frequent adjournments have only added two cases to the pre-existing backlog. Aside from the case backlog, the Law Commission’s 229th report also highlighted the logistical challenges that poor litigants confront when travelling all the way to Delhi.
SUGGESTION OF THE LAW COMMISSION
The Law Commission recommended that four regional benches be established to hear matters from each region. Second, the separation would allow a Supreme Constitutional Court to better teach national issues. Litigants frequently ask their High Court attorneys to appear at the Supreme Court, resulting in a cost multiplier in terms of lodging and travel fees. “Adjournment grew prohibitive, costs multiplied,” according to the Law Commission’s findings. The Supreme Court was created to be a constitutional court, not just another Court of Appeal (Justice Bhagwati). The court, on the other hand, is currently inundated with appeals, which consume more time than constitutional issues. Only ten 5-judge constitutional benches have been formed on average per year since the 1960s, compared to 100 per year in the 1960s.
Article 145(3) mandates the use of these benches in all cases involving significant constitutional issues. “The Supreme Court cell seat in Delhi or such other place or places, as the Chief Justice of India may, with the agreement of the president, nominate from time to time,” according to Article 130 of the Indian constitution. As a result, the Supreme Court can convene at any location, not just Delhi. In a 1986 decision, Justice P.N. Bhagwati agreed with this viewpoint.
“If Article 130 is generously interpreted, no constitutional change may be required for the purpose of establishing cassation benches in four regions and a Constitution Bench in Delhi,” the Law Commission stated in its 229th report. The Chief Justice of India’s action, with the president’s consent, may be sufficient. It should also be emphasised that the Chief Justice of India acts as a person designato under Article 130 and is not compelled to consult any other authority or person. Only the president’s approval is required.
Many legal experts believe that establishing regional Supreme Court benches will diminish the court’s constitutional superiority. However, given that the decentralisation is both functional and structural, and that only the Delhi bench deals with constitutional issues, such fears may be unfounded. As a result, establishing regional benches has no bearing on the supreme court’s finality or superiority. The Supreme Court of India has always been a strong institution that has provided exceptional service to the country.
ARE THERE ANY OTHER OPTIONS?
The Congress advocated the creation of a national Court of Appeals (NCA) as an intermediary body between the Supreme Court and India’s 25 high courts to hear regular civil and criminal appeals from the high courts in its Lok Sabha election platform. According to the Congress’s proposal, the NCA will be divided into six regional benches, each with three judges. The Congress has also suggested a constitutional change that would limit the Supreme Court’s authority to issues involving constitutional interpretation and adjudication of cases of national importance.
CONCERNS WITH THIS
Article 130 of the Indian Constitution, which would, in fact, amount to meddling with the Supreme Court’s essential constitutional structure. An amendment like this would strip the Supreme Court of its extraordinary appeals-hearing powers. The Union Minister of Law and Justice stated the same thing in 2014 when denying the aforementioned request.
ATTEMPTS IN THE PAST
The report recommended that the Supreme Court establish four appellate benches in Chennai/Hyderabad, Delhi, Kolkata, and Mumbai. At the time, the report’s proposal was rejected. V Vasanthakumar submitted a petition in 2015 to establish regional Supreme Court benches. The Supreme Court appointed KK Venugopal, the incumbent Attorney General, as an amicus curia in the case. He was in favour of the court being decentralised. However, Mukul Rohatgi, the then-Attorney General, was a vocal opponent of the proposal.
THE PROPOSAL’S DRAWSBACKS
A fragmented court is thought to result in fragmented verdicts. The Supreme Court must unify the law throughout India, and having numerous benches may obstruct this purpose. This is analogous to the current situation, in which multiple High Courts issue conflicting rulings on the same facts. This proposition may possibly be in violation of doctrine’s basic structure. Any division of the code would necessitate a constitutional amendment. Article 136, in particular, may have an impact on basic structure doctrine. Ex-CJI KG Balakrishnan made a point of avoiding dismissing cases, as this would be tantamount to denying someone a hearing. As a result, urgent measures are required to resolve the backlog of cases.
The traceability rule under the IT Rules 2021: A step forward or backward?
The ministry for electronics and IT notified Information Technology (intermediary guidelines and digital media ethics code) rules 2021. These new IT rules supersede the old IT rules of 2011. The new IT rules are more comprehensive in nature and introduces multi facets guidelines which remain dormant in the old IT rules.
The most essential amendment in the new IT rules is rule 4(2) which imposes an obligation on the social media forums providing messaging services to trace the first originator of the message or a social media post which affects the integrity, sovereignty of the country or affects the relations with other countries and anything which incites public order or portrays sexual abuse on women and children. This rule is embodied with a penal punishment for not less than 5 years under IPC 1860 and it does not obligate the intermediary to disclose the contents of the message of the first originator.
The traceability rule has drastically affected the social media platforms like WhatsApp LLC, Facebook and Twitter etc. and makes them aggrieved as the traceability of messages between the first originators and receivers undermines privacy protection policies and infringes the fundamental rights of its users, especially the right to privacy under Article 21 and right to freedom of speech and expression under Article 19(1) of the Indian constitution. Further, the traceability rule also puts an end to the end-to-end encryption of the messages between the first originators and receivers which. The third concern is about the creation of a platform or a portal for the collection and storage of billions of messages exchanged between people on social media platforms.
It must be kept in mind that the fundamental rights as enshrined in Indian Constitution are not absolute in nature and they are curtailed by the reasonable restriction. For example, the right to freedom of speech and expression under Article 19 (1) is not absolute in nature because it is curtailed by the reasonable restriction under Article 19 (2), similarly the right to privacy under Article 21 is also subject to reasonable restrictions which is apparent from the Apex court decisions in Justice K.S. Puttaswamy (Retd.) case, Ritesh Sinha case and Modern Dental College and Research Centre case. Further, rule 4 (1) (a), also ensures the principle of natural justice to the first originator by sending them, a prior intimation notice specifying all the grounds and reasons for the action of the elimination of certain information also gives them a right to reply to that notice.
On a perusal of rule 4(2), it can be ascertained that the life of the citizens of this country is not at risk and the traceability rule is only introduced to catch the culprit who attempts to downgrade India’s reputation in the world, puts the integrity and sovereignty of this country at bay and attempts to degrade the women and children who are a victim of sexual abuse but the traceability principle suffers from one flaw that is the issuance of direction to Social media intermediaries by the Government and this flaw can be cured by amending rule 4 (2) to the extent that the direction as given by Government must bear the judicial approval. Therefore, the new IT rules are a step forward to protect its citizens in an efficacious manner.
Madras High Court order on ‘right to be forgotten’: Analysis and critique
Recently, a Single-Judge Bench of the Hon’ble Madras High Court headed by Hon’ble Mr. Justice N. Anand Venkatesh, had given an important order regarding ‘right to be forgotten’ (‘RTBF’) or right to erasure as a facet of the fundamental ‘right to privacy’, in an anonymous reported writ petition with the citation W.P. (MD). No. 12015 of 2021 (‘High Court Order’). This development follows another remarkable order on RTBF announced previously by the Hon’ble Delhi High Court in Jorawer Singh Mundy @Jorawar Singh Mundy vs. Union of India and Ors., 2021 SCC OnLine Del 2306 (‘Mundy Case’), which has been analysed and critiqued by myself in an earlier issue for The Daily Guardian dated June 1, 2021.
The High Court Order is the first of its kind, as it interestingly completely masks the identity and any personal data/information of the petitioner who is seeking to obtain the RTBF. As recorded by the High Court, the anonymous petitioner had previously faced criminal proceedings of offences for which punishments are prescribed under Section 376 (Punishment for offense of rape) and Section 417 (Punishment for offense of cheating) of the Indian Penal Code (‘IPC’). Eventually, the petitioner was ultimately convicted of the above-mentioned offences by the Trial Court in September 29, 2011. Subsequently, the petitioner had appealed this judgment before the High Court, ultimately resulting in their acquittal from all charges in a judgment delivered on April 30, 2014 (Crl. A. (M.D.). No. 321 of 2011).
However, the petitioner’s name kept getting reflected in the judgment rendered by the High Court and was freely accessible to anyone who typed their name in Google Search. Even though the petitioner was acquitted, the fact is that they have been identified as an accused throughout the previous judgment. Consequently, the petitioner argues that this causes a serious impact on the reputation of the petitioner in the eyes of the society. Therefore, the petitioner wishes for the High Court to grant an order redacting their name from the judgment of the High Court.
HIGH COURT’S ANALYSIS
The High Court Order observes that by virtue of the previous acquittal order, the petitioner could no more be identified as an accused in the eye of the law. Given the fact that the world is under the grips of social media, the background of any person could be assessed by everyone entering into a Google Search and collecting data on the petitioner. Moreover, the High Court observes that there can be no assurance that the data obtained from a Google Search on an individual is authentic.
Yet, as the data is publicly available, it creates a first impression on mind of the one using Google Search. Depending on the data provided, the Google Search can make or mark the characteristic of a person in the eyes of the society. The High Court Order observes that in today’s world, everyone attempts to portray themselves in the best possible way on social media. It is one of the new challenges faced by the world and has everyone grappling to deal with the harbinger of further complexities awaiting mankind.
Moving forward, the High Court Order observes that the Central Government is in the process of finalizing a Data Protection legislation which will effectively protect the data and privacy of a person. It also observes that the legislature has enacted laws protecting the identity of victims of certain crimes who are women and children, due to which their names are not reflected in any order passed by a Court and automatically stand redacted, ensuring that no one is able to identify such a victim.
Subsequently, the High Court Order observes that while the person and privacy of the individual are protected by such laws, no such legal protection has been similarly extended to accused individuals who have been ultimately acquitted from all charges in a criminal case. It is due to this reason that an individual who was acquitted of all charges approached the High Court for a similar remedy, seeking redaction of their name from the previous judgment passed by the High Court.
HIGH COURT’S ORDER
The High Court recorded that the petitioner’s request for seeking a RTBF order could be made only by placing reliance upon Article 21 of the Indian Constitution, which mentions the fundamental right to life and personal liberty. Recalling the Nine-Judge Constitution Bench judgment of the Hon’ble Supreme Court in Justice K.S. Puttaswamy (Retd.) vs. Union of India, (2017) 10 SCC 1 (‘Puttaswamy Judgment’), the High Court stated that the right to privacy has been held to be a fundamental right which is traceable to Article 21 of the Constitution. The High Court Order also observed that a similar case had come up before the Delhi High Court (implicitly referring to the Mundy Case), where the Delhi High Court had granted a RTBF order.
Moving forward, the High Court remarked that if the essence of the Puttaswamy Judgment was applied to the petitioner’s writ seeking RTBF in the present case, “obviously even a person, who was accused of committing an offense and who has been subsequently acquitted from all charges will be entitled for redacting his name from the order passed by the Court in order to protect his Right of Privacy.” Consequently, the High Court held that a prima facie case had been made out by the petitioner, entitling them to redact their name from the previous High Court judgment. However, as such a case had come up for the first instance before the High Court, it also sought to hear the Advocates appearing in the case and members of the Bar in order to understand the various ramifications that the High Court Order may have, before writing a detailed judgment.
There are seven reasons on the basis of which I argue that the High Court Order in the present case is flawed. First, similar to the Mundy Case before the Delhi High Court, the Madras High Court opted to make a prima facie review. However, unlike the former case, the Madras High Court in the present case did not identify competing interests or rights, which would necessitate a balancing of RTBF with such competing interests or rights. Consider for example the ‘fundamental right to freedom of speech and expression’ of citizens and the ‘fundamental right to practice any profession, or to carry any occupation, trade or business’ (which would also cover news reportage and journalistic professions or work by citizens) are important competing interests/rights, which were not mentioned and balanced against RTBF by the High Court Order.
Second, apart from the above-mentioned competing interests/rights, there is a need for courts to have maintenance of transparency, as well as the need for the citizens/general public to have ‘access to information’ (which enables them to exercise some fundamental rights, such as right to freedom of speech and expression). Notably, the High Court Order in its prima facie review did not mention or attempt to balance these competing interests/rights against RTBF.
Third, since criminal proceedings are a part of the public record, it follows that the public officials and Indian citizens should have a right to know if an individual was tried for a grave offence under the IPC or other laws, especially offences such as ‘rape’ or other sexual offences, which was the case in the previous judgment mentioned in the present High Court Order. Importantly, rape or other sexual offences are serious actions against the bodily autonomy, dignity, decisional privacy and the person of an individual. The lack of legal protection to an individual who is acquitted of a rape charge shouldn’t therefore be equated with the protection of masking identities or personal data that legislature has provided to woman or child victims in cases involving serious offences such as those involving rape or other sexual offences.
Fourth, as pointed by myself in a previous article for The Daily Guardian (dated June 1, 2021), the fundamental right to privacy created by the Puttaswamy Judgment does not have a ‘horizontal application’ (i.e. exercise of an individual’s fundamental right against a person or entity other than the State). Consequently, assuming but not admitting that the petitioner’s RTBF exists in the present case, private entities such as Google cannot be ordered by the High Court to enforce RTBF as a facet of fundamental right to privacy. Further, while the ambit of the High Court’s writ jurisdiction under Article 226 of the Constitution is wider than the Supreme Court’s writ jurisdiction under Article 32, the High Court’s powers cannot be used to enforce fundamental rights against non-State actors or private entities which do not perform a ‘public function’.
Fifth, the High Court Order is contrary to the position taken by the Hon’ble Gujarat High Court in Dharmraj Bhanushankar Dave vs. State of Gujarat, S.C.A. No. 1854 of 2015, where the High Court had rejected a plea similar to the present RTBF order. In the Dharmraj Dave case, a permanent restrain on free public exhibition of a judgment and order in which the concerned petitioner was acquitted from criminal proceedings involving ‘murder charges’ was being sought. The contrary stances taken by Madras High Court, as well as the previous Delhi High Court order in the Mundy Case furthers judicial incoherence on RTBF in India.
Sixth, in absence of any law enacted by the Indian Parliament to enable courts to grant RTBF and in light of the ‘horizontal-application’ nature of the fundamental right to privacy as propounded by the Puttaswamy Judgment, private entities such as Google cannot be compelled to redact the identity of individuals from the internet, especially when they are merely linking information or providing location of webpages detailing a reported court order. Lastly, it is pertinent to point out that there is neither any international instrument or treaty entered into by India nor any customary law which imposes any obligations on States to create laws or legislative mechanisms to provide an individual a RTBF or right to erasure of personal data, especially against non-State actors or private entities.
In light of the above-mentioned critique, I have sought to establish that the Madras High Court’s order in the present case is flawed. However, the increasing number of RTBF applications before various Indian High Courts highlight an imminent need for the Parliament to consider enacting a statutory mechanism governing RTBF or passing a constitutional amendment creating a ‘horizontal application’ of fundamental right to privacy, which would enable judicial authorities to adjudicate writ litigations invoking right to privacy under Article 21 of the Constitution to enforce RTBF against private entities such as Google. Nevertheless, it is important to bear in mind that if a RTBF is created through a statutory enactment or a constitutional amendment, much like its parent right to privacy, it cannot be an absolute right. A RTBF should not be extended to enable individuals acquitted from serious offences such as rape or other sexual offences, murder, offences relating to narcotic drugs and psychotropic substances etc.
The increasing number of RTBF applications before various Indian High Courts highlight an imminent need for the Parliament to consider enacting a statutory mechanism governing RTBF or passing a constitutional amendment creating a ‘horizontal application’ of fundamental right to privacy, which would enable judicial authorities to adjudicate writ litigations invoking right to privacy under Article 21 of the Constitution to enforce RTBF against private entities such as Google.
COVID AND LAW: WHY THE EPIDEMIC DISEASES ACT, 1897 WILL NOT BE INDIA’S BEST BET IN THESE TIMES
When Covid-19 reached India, it created a situation of chaos and naturally the law had to jump in as an instrument for social control. It was a dangerous as well as an unprecedented situation and things needed to be controlled and channelled in the right way. This gave rise to a rather intriguing question, how much of control and discretion has to be given to the Government? & Where to draw the line?
Unfortunately, we had with us the Epidemic Diseases Act, 1897 (hereinafter, ‘EDA’) an archaic law which the colonial masters enacted in response to the bubonic plague of 1896. It was passed in such a haste that it is not at all comprehensive in nature and comprises of just four sections. The law is not a remedial one and was passed as a measure to control the ‘subjects’ over whom the colonial masters enjoyed their rights, powers and privileges. The history is important to point out because EDA is a pre-independence law that does not take into account the transformation of the people of India from ‘Subjects’ to ‘Citizens’. At this juncture, it is also pertinent to note that the Supreme Court has held in the case of Navtej Singh Johar vs. UOI that the doctrine of presumption of constitutionality does not apply in the case of a pre-independence law. Having mentioned this, now let me delve a little deeper and engage with some of the very fundamental flaws of the EDA.
THE ACT IS VAGUE AND DOES NOT PROVIDE CLARITY IN ITS APPLICATION
The EDA which aims to come into play at the time of an epidemic does not provide any definition for what will be considered as an ‘epidemic’. The words ‘dangerous epidemic disease’ have been used but there is no definition whatsoever in the act which may point out to the circumstances of its application. The judgement of an epidemic has been left completely on the subjective satisfaction of the government with no metric whatsoever.
The Supreme Court’s in the case of the State of Madhya Pradesh vs Baldeo Prasad, struck down the ‘Goonda Act’ for not giving the definition of who constitutes a Goonda in the first place. Likewise here is a parallel on the same lines that the EDA does not define ‘epidemic’ anywhere in the act. The law cannot operate in imaginary circumstances without any sort of clarity/guidelines as to that effect; this makes the law vague in nature.
The Supreme Court has imported the American constitutional doctrine of ‘void for vagueness’ in the case of Kartar Singh vs. State of Punjab wherein the court deliberated on vagueness as a ground for declaring a law void. The same was further relied on in the case of KA Abbas Vs. UOI by the Supreme Court. The EDA is very general and the worry is that almost anything can be moulded to fit into its frame. Aristotle once famously said that, “The Generality of Law falters before the specifics of life” and the ‘specifics’ of the human life is the eventuality, that’s at stake here!
EDA GIVES UNFETTERED POWERS TO THE EXECUTIVE AND IS DEVOID OF ANY CHECKS OR BALANCES
The EDA is purely administrative in nature and does not contain any mechanism as to the checks and balances. If a situation is so grave where there is a threat of dangerous disease/ infection, it means that the situation is bordering to that of an emergency like scenario. The important point of consideration here is that even the emergency provisions of the Constitution cannot be invoked arbitrarily so how can the provisions of the epidemic act? There is not a single section of the act which obligates the states or the central government to place the situation in the legislature or take any sort of a constitutional approval before acting. Neither there is a provision which provides for any restrictions on the acts of the government or places a limit. The law is liable to be misused without any regard to the fundamental rights of the public. There is an over breadth-ness which is at play here and the scope of the law is extremely wide. This invokes the Supreme Court’s precedent in the case of Shreya Singhal vs. Union of India in which the court looked at the over-breadth-ness of a law and transgression of fundamental rights (in the context of sec. 66A of IT act).
The constitutional landscape of the country is changing and the Courts have been expanding the scope of the fundamental rights. The epidemic act in question does in no way stands up to the contemporary constitutional standards. Section 2 of the Act empowers the state government to take “special” measures and prescribe regulations. What is amusing here is that no indicative measures have been provided in the act and the same has been left for the government to decide. This law practically empowers the government to act on its whims and fancies. With no regard for fundamental rights, I argue that the law in issue is not a shade but a shadow which needs to be struck down.
Governance is a cumbersome task and the same becomes more difficult in precarious times, such as the one faced by the country today. What is constitutionally unacceptable is a scheme where there is a complete erosion of accountability. The quote of Justice William Douglas of the US Supreme Court is very apt in the present times (1951).
“Where discretion is absolute, man has always suffered. At times it has been his property that has been invaded; at times his privacy; at times, his liberty of movement; at times, his freedom of thought; at times, his life. Absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions.”
Although it is a fact that discretion is a tool for individualisation of justice but at the same time it must be remembered that ‘absolute discretion’ is a road to constitutional blasphemy. The time has come for the legislature to shun the EDA. A new law must be enacted that is orderly as well as constitutionally just, fair and reasonable!
THE NEED FOR POPULATION CONTROL LEGISLATION
It goes without saying that the population of India is increasing very rapidly which is a cause of grave concern for all of us especially those who are Indians. It is a no-brainer that there are so many disadvantages of population increase like the resources shrink, jobs shrink, living space shrink, water shrinks and what not! So there can be no two views that all possible steps must be taken to control population because if it is not controlled even now then not only are we going to overtake China as the world’s most populous country by 2027 as a UN report said in 2019 but shall also suffer in innumerable ways which our nation can certainly ill afford at this juncture.
It cannot be lightly dismissed that India is expected to add nearly 273 million people to its population between now and 2050. We also have to concede that with Chinese birth fertility rate expected to drop in the coming years, demographers have predicted that India with its much higher fertility rate will overtake China as the world’s most populated country by 2023 or 2024. China’s state run Global Times daily quoted Chinese demographers as saying that India’s population may overtake China’s well before 2027. How can all this be lightly dismissed?
There can be no gainsaying the irrefutable fact that increasing population is the biggest hurdle to development and we cannot take it just lying down. It is the bounden duty of our policymakers and lawmakers to ensure that population is at least controlled to some extent and all steps must be taken now to ensure the same. If population is not controlled even now then certainly our country can never become hunger free or poverty free or free from other such problems as the population rise is the root cause of all such problems with which our nation is seriously grappling also! So, it merits no reiteration that population control has to be on the top priority of the government both in the Centre and in the States also. It cannot be kept on the backburner any longer now!
As we all know, Pandit Jawaharlal Nehruji took the single biggest and the most commendable step of controlling the population of Hindus by restricting Hindus to just one marriage. Prior to Pandit Nehruji’s government framing “The Hindu Marriage Act, 1955”, Hindus both men and women could marry as many as they wanted and there was just no limit on either men or women. Lord Krishna had 16,108 wives as was reported in “The Times of India” newspaper in 2018. Similarly Ashoka also had thousands of wives and so was the case with not just kings but even among the common man and women. There was just no limit and both men and women had the liberty even during British rule to marry as many as they wanted. But Pandit Nehruji brought down both Hindu men and women to just one which is the most commendable step since independence ever taken by any PM for which Hindus must always be grateful to Pandit Nehruji! This alone explains why I always refer to Pandit Nehruji as the “Real Reformer of Hindus” but Pandit Nehruji didn’t touch Muslims as the country then was reeling fresh from the partition wounds and Nehruji didn’t want to do anything that would create insecurity among Muslims in any manner! But what about the other PM who ruled after Nehruji till PM Narendra Damodardas Modi who is ruling since last more than 7 years?
But my best friend Sageer Khan differed with me on this. He was strongly critical of Pandit Nehruji’s decision to impose monogamy on Hindus alone. He said in 1995 that, “What is UN? It is ruled by just US and UK. France, China and Russia are just servants of US and UK and China got permanent membership because of US and UK. Who created India and got it partitioned in 1947 on the basis of religion? It is again UN ruled by US and UK. UN loves Pakistan and hates India. So never get surprised that why Taliban aided, abetted and armed by Pakistan have taken over Afghanistan and UN watching with smile on face! Hindus, Shia Muslims, Sikhs, Indian Muslims who migrated to Pakistan called Mohajjirs are raped, insulted, punished and then killed! Yet UN is proud always of Pakistan as it is the brain child of US and UK who rule UN and who want to crush India as patriotic Indians especially Hindus in large numbers forced Britishers to leave India. It was UK who did not forget its defeat and so again advised Nehru our first PM to disregard the advice of Dr BR Ambedkar who favoured retention of polygamy in his Hindu Code Bill 1951 and he did accordingly by abolishing polygamy and polyandry among Hindus and also heeded to UK’s decision to not abolish polygamy among Muslims so that slowly Muslims become majority and Hindus become minority and India never gets stability and they could again come back to rule India. Why monogamy imposed only on Hindus alone? Muslims enjoy maximum liberty in India all over the world and it is Muslims who can still indulge in polygamy even though Nehru abolished it among Hindus in 1955. This is most unfair and must be strongly condemned. Why Hindus are forced to become Muslims to marry more than once? Polygamy should have been abolished for both or for none but Nehru very wrongly imposed monogamy only on Hindus which is most disgraceful and cannot be ever justified. Similarly why Muslims fight with Hindus in Ayodhya, Kashi and Mathura which have been Hindu worshipping sites since ages. Should Ram temple be built in Mecca, Medina or in Ayodhya? Muslims should never fight over Ayodhya, Kashi and Mathura which since thousands of years have been Hindus sites of pilgrimages just like Mecca and Medina are for Muslims. Muslims should be treated on par with Hindus and polygamy should be abolished among us also. This will greatly help in controlling the population also in our country. When Hindus can be brought down to one both male and female then why can’t Muslim males be also not brought down to one and Muslim females are already one as they unlike men cannot marry more than one? Centre and our law makers must give it a serious thought!”
For far too long this most pressing issue of uniform civil code has been hanging fire and our law makers have just callously preferred to always look the other way around on it. Why is it that film actor Dharmender had to become Muslim to marry a second time? Why is it that the son of former Chief Minister of Haryana – Bhajan Lal named Chander Mohan also had to change his name to Chander Mohammed and so also Anuradha Bali had to assume a Muslim name Fizza and convert to Islam just to marry each other as Chander was already married and in Hindu religion one cannot marry than one? There are millions of such cases where the conversion is purely on the temptation to marry more than one women! Why can’t this sham end once and for all? Why can’t law be same for one and all? Will it not help control population also if monogamy is imposed on one and all?
To put it mildly: When Hindus can be made to shun polygamy and polyandry in 1955 then why can’t the same be done among Muslim men in 2021? My best friend Sageer Khan also always wanted Muslims to abolish polygamy as it is a bad practice and cannot be ever condoned! Sageer Khan also used to often ask: “Why Centre trembles to do anything on this score? Why can’t monogamy be imposed equally on people of all religion alike? It has become a fashion to marry more than one. This is the root cause of increase in population in India.” Centre must seriously ponder on it.
If Centre takes decisive action and after 75 years of independence summons the courage to abolish polygamy among people of all religions just like Pandit Nehruji summoned to do the same for Hindus in 1955 not just among men but also among women that is abolishing both polygamy and polyandry then population can be controlled to a great extent! But what an unbeatable irony that in last 75 years of independence no PM nor any Supreme Court Judge has gathered the guts, gall and gumption to call a spade a spade and abolish polygamy among people of all religion as my best friend Sageer Khan always advocated also!
Of course, it goes without saying that using force to control population can never be feasible nor advisable! It would only worsen the situation further! We all saw how late Sanjay Gandhi who during Emergency in 1975-77 had thought that he could control population by using forcible methods of sterilisation floundered as he enjoyed unbridled powers and Congress party also lost power as people certainly didn’t approve of it in any way. It must be underscored that Centre as also the States must now launch more awareness campaign to ensure that the people themselves become more aware of the dangerous consequences of over population and should work most actively in this direction!
In addition, Centre and States must give more and more concessions to those families where the children are just one or two. This can certainly go a long way in motivating others to follow suit! But both Centre and States ought to be more proactive on it as population explosion is the most serious problem confronting India since last many years! It merits no reiteration that a dormant snail like approach would only serve in further exacerbating this problem further which our country can ill afford at this juncture! So now the ball is clearly in the court of the government!
It must be strictly ensured that child marriages does not take place to achieve fertility decline and this holds true especially in villages and remote areas where we keep hearing increasing incidents of child marriages taking place even now! There has to be zero tolerance on child marriages as it is because of child marriages that a women has many children and that too very early in her life! If child marriage is seriously and strictly checked it will ensure that population is also checked to a great extent.
Not just this, the marriage age must also be increased to 25 for both men and women. This can go a long way in ensuring that both men and women attain maturity when they marry and in their early youth don’t indulge in the mistake of having many children. This can prove to be a big leap in the direction to control population to a great extent!
It also must be mentioned here that serious, sincere and steady counselling must be done of all the parents the moment they give birth to one child irrespective of whether it is male or female to not produce more children. When parents have two children then they must be shown the copies of the laws of such states like UP, Assam and Rajasthan among others where having more than 2 children carries lots of disadvantages and bars one from several benefits! On the contrary, those who have just one child can get several benefits like preference in admission in all educational institutions and preference to single child in government jobs as we see in case of UP’s population draft bill also!
It cannot be overemphasized that parents must be also made more aware about the preference that is given to a single child in getting free health care facility and insurance coverage also till he attains the age of twenty years as we again see in the case of UP’s draft population bill which is also welcome! This will certainly propel parents to not have more than one children! Also, when parents will be barred from getting many benefits and from either contesting elections or holding any public post or getting other similar benefits this also can prove to be a big checker in population increase but apart from just creating strict laws what matters most is their implementation in totality and on one and all!
In conclusion, it is high time and now polygamy should be completely abolished in India just like Pandit Nehruji abolished it among Hindus in 1955! But the moot question certainly is: Can any PM ever dare to do what Pandit Nehruji did not do? Impose monogamy on one and all and not just Hindus alone as he did in 1955!
Sanjeev Sirohi, Advocate
Opinion10 months ago
South Block’s mistakes will now be corrected by Army
Sports1 year ago
When a bodybuilder breaks Shoaib’s record
News1 year ago
PM Modi must take governance back from babus
Spiritually Speaking12 months ago
Spiritual beings having a human experience
News1 year ago
Chinese general ordered attack on Indian troops: US intel report
Sports1 year ago
West Indies avoid follow-on, England increase lead to 219
Legally Speaking1 year ago
Law relating to grant, rejection and cancellation of bail
Royally Speaking11 months ago
The young royal dedicated to the heritage of Jaipur