Not permitting mentally challenged rape victim to undergo medical termination of unwarranted pregnancy violative of her bodily integrity, says Madhya Pradesh HC - The Daily Guardian
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Not permitting mentally challenged rape victim to undergo medical termination of unwarranted pregnancy violative of her bodily integrity, says Madhya Pradesh HC

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In a well-written, well-articulated, well-reasoned and well-substantiated judgment titled X vs State of Madhya Pradesh and others in Writ Petition No. 12155/2021 that was delivered just recently on July 14, 2021, the Madhya Pradesh High Court has recently, rightly and remarkably observed that not permitting a rape victim, suffering from severe mental problems, to undergo Medical Termination of unwarranted pregnancy would be violative of her bodily integrity which would not only aggravate her mental trauma but would also have devastating effect on her overall health including on psychological and mental aspects. This was held so while allowing medical termination of pregnancy of 23 year old rape victim survivor whose mental age was found to be that of minor, being only 6 years. It was a Division Bench of Madhya Pradesh high Court comprising of Chief Justice Mohammad Rafiq and Justice Vijay Kumar Shukla who pronounced this brief, brilliant, bold and balanced judgment.

To start with, this latest, learned, laudable and landmark judgment authored by Chief Justice Mohammad Rafiq for himself and Justice Vijay Kumar Shukla of Madhya Pradesh High Court sets the ball rolling by first and foremost observing in para 1 that, “This writ petition has been filed by praying for a direction to the respondents to allow her daughter (hereinafter referred to as “Victim-A”) to undergo medical termination of pregnancy at the State expense. The petitioner has also challenged the constitutional validity of Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 (for short “the MTP Act”) to the extent it stipulates a ceiling of 24 weeks for medical termination of pregnancy with the prayer the same be declared as ultra virus Article 14 and 21 of the Constitution of India. The petitioner has also challenged the order dated 6.7.2021 passed by the Third Additional Sessions Judge, Hoshangabad in MJC-R No.207/2021 rejecting application of the petitioner for permission to terminate pregnancy of Victim-A.”

While elaborating on the facts of the case, the Bench then puts forth in para 2 that, “The petitioner is resident of Village Baagratwa, Tehsil Babai, District Hoshangabad of State of Madhya Pradesh. She belongs to Scheduled Tribe community. She is wholly illiterate, living below poverty line. She does not have any moveable or immoveable property. According to the petitioner, she and her husband work as a labourer. Her daughter Victim-A is aged about 23 years and she is mentally retarded. The petitioner and her husband left their village for Ujjain for earning livelihood by doing labour work. When they returned back after some time, the petitioner found that her daughter Victim-A was behaving in a peculiar manner. Their daughter Victim-A informed them in sign language about certain stomach pain. On making further enquiry, she learnt that one of her neighbours had committed rape upon her. She immediately took her to the doctor, who found that she was pregnant. The petitioner lodged a First Information Report with the Police Station Babai. District Hoshangabad, which has been registered for offence under Section 376(2)(1) of the IPC as Crime No.301/2021. The accused was arrested on 20.6.2021. The police got Victim-A medically examined and also obtained the medical report about her mental health. Victim-A was thereafter sent for further medical examination on 22.6.2021, upon which it was confirmed that she was carrying pregnancy of 22 weeks. The petitioner immediately filed an application under Section 3 of the MTP Act on 30.6.2021 before the Judicial Magistrate First Class, Hoshangabad, seeking permission for termination of her pregnancy, who rejected the same on 2.7.2021. Since 3 rd and 4th July, 2021, being Saturday and Sunday, were holidays, the petitioner filed application under Section 3 of the MTP Act with the same prayer before the Third Additional Sessions Judge, Hoshangabad on 5.7.2021, which was registered as MJC-R No.207/2021. The same was however rejected on the very next working day i.e. 6.7.2021 under the ignorance about the latest law whereby maximum length of pregnancy under Section 3(2)(b) of the Act, which was earlier 20 weeks, was raised to 24 weeks by amendment to that effect by the Act 8 of 2021 published in the Gazette of Government of India on 25.3.2021.”

To be sure, the Bench then after observing in para 7 that, “We have given our anxious consideration to rival submissions, perused the material on record and studied the cited precedents.” then goes on to hold in para 8 that, “A perusal of the afore-quoted opinion of the Medical Board in condition no.1 indicates that the survivor is a case of severe mental retardation with behavioral problems. Mental age of the survivor is approximately 6 years. She is unable to take care of herself and therefore, obviously she will not be in a position to take care of the baby, if she delivers the one. In conclusion no.2 of the aforesaid opinion of the Medical Board, the victim-A is opined to be a single live intrauterine fetus of gestational age by USG is 25 week 5 days +/- 2 weeks with the possibility of age being either less or more by 2 weeks, which is indicated by “+/- of 2 weeks”. This is also the opinion given by the Radiologist. We have to therefore now examine whether in the facts like these, this Court would be justified in refusing to grant permission for medical termination of the pregnancy on the law available on the subject.”

It would be instructive to mention here that the Bench then points out in para 9 that, “Section 3 of the MTP Act is relevant for the purpose of deciding the present case, which reads as under:-

“Section 3. When pregnancies may be terminated by registered medical practitioners.-

(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-

(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks, in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are of the opinion, formed in good faith, that,-

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health ; or

(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

Explanation 1.- For the purposes of Clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 2.- For the purposes of Clause (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

(2-A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act.

(2-B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.

(2-C) Every State Government or Union territory, as the case may be, shall by notification in the official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act.

(2-D) The Medical Board shall consist of the following, namely-

(a) a Gynaecologist;

(b) a Paediatrician

(c) a Radiologist or Sonologist; and

(d) Such other number of members as may be notified in the Official Gazette by the State Government or Union Territory, as the case may be.

(3) In determining whether the continuance of pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.

(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.””

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Be it noted, the Bench then found it quite strange as is mentioned in para 10 that, “It is indeed surprising that the Third Additional Sessions Judge, Hoshangabad relied on unamended Section 3 of the MTP Act rather than considering the amended provision, which has now increased the permissible outer limit for termination of pregnancy from 20 weeks to 24 weeks. This means that if the law was correctly read and applied by him, the permission of medical termination of the pregnancy could have been granted as the period of 24 weeks had yet not passed on the date the said Court was approached. Be that as may be, Section 3(2)(b), which is relevant for deciding the medical termination of pregnancy, inter alia provides that subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are of the opinion, formed in good faith that; (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality. The first Explanation thereto relates to Clause (a), which provides that where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. This Explanation may not be relevant for deciding the present case, but the second Explanation of Section 3(2) would in the facts of the present case have bearing on the interpretation of Section 3(2)(i) of the MTP Act, which stipulates that where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. (emphasis supplied).”

To put things in perspective, the Bench then envisages in para 11 that, “Admittedly, in the present case, the Victim-A, daughter of the petitioner, was subjected to rape and according to experts, her mental age is only 6 years and therefore, regardless of her biological age, the consent for sexual intercourse in her case would be irrelevant. The First Information Report was lodged by her mother for the offence of Section 376(2)(1) of the IPC against the accused with the Police Station Babai, District Hoshangabad in Crime No.301/2021. This therefore would bring the case of her daughter within the purview of Explanation (2) which provides that the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman, who in this case is Victim-A. Moreover, what is peculiar about this case is that the Medical Board itself has opined that duration of pregnancy is variable by two weeks. The victim is unable to take care of self, her hygiene is poor, her intellectual abilities are poor, her mental age is only 6 years and therefore, obviously she will not be in a position to take care of the baby, even if she delivers it.”

As it turned out, the Bench then observes in para 12 that, “This Court is cognizant of the fact that the Victim-A is mentally retarded, and her mental age having been adjudged by the experts to be only 6 years, therefore, all the steps on her behalf could be and were in fact taken by her mother, who is her natural guardian. She immediately filed an application before the Court of JMFC, Hoshangabad on 30.6.2021 which was rejected on 2.7.2021 and thereafter, immediately on the very first next working day i.e. on 5.7.2021, she filed the application before the Third Additional Sessions Judge, who being ignorant of the amended provision, which came into effect from 25.3.2021, rejected the same under the misconception that the outer limit for grant of permission of medical termination of pregnancy was 20 weeks and not 24 weeks. Sub-section (4) of Section 3 requires consent of the guardian of a minor, or a major who is mentally ill person. The exceptions to this rule of consent have been given in Section 3(4)(a) of the MTP Act, which provides that when the pregnant woman is below eighteen years of age or is a “mentally ill” person, then consent of her guardian would have to be obtained. Since in the present case the mental age of the Victim-A was determined approximately 6 years, her pregnancy can be medically terminated with the consent of the guardian who is actually natural mother of Victim-A. The permission/consent has to be therefore necessarily assumed.”

While citing the relevant case laws, the Bench then observes in para 13 that, “In Murugan Nayakkar (supra), the petitioner, who was 13 years of age, was a victim of alleged rape and sexual abuse. She preferred a writ petition for termination of her pregnancy. The Medical Board opined that termination of pregnancy at this stage or delivery at term will both have equal risk to the mother. The Supreme Court held that considering the age of the petitioner, trauma which she prima facie suffered due to sexual abuse and the agony she is going through at the present, it would be appropriate to allow termination of pregnancy. In Tapasya Umesh Pisal Vs. Union of India and others (supra), the victim, who was 24 years old, was seeking permission to undergo medical termination of the pregnancy, which had progressed to 24 weeks. The Supreme Court held that it is difficult to refuse the permission to the petitioner to undergo medical termination of pregnancy as it is certain that if the foetus is allowed to be born it would have a limited life span with serious handicaps which cannot be avoided. In Kalpana Singh vs. Government of NCT of Delhi & others (supra), the victim had pregnancy of 25 weeks and 5 days, which was permitted to be terminated medically.”

Adding more to it, the Bench then while citing a landmark case observes in para 14 that, “The Supreme Court in Suchita Srivastava and Another Vs. Chandigarh Administration reported in (2009) 9 SCC 1, held that there is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. Reproductive rights include a woman’s entitlement to carry pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women, there is also a “compelling State interest” in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices. The Lordship further held that ordinarily a pregnancy can be terminated only when a medical practitioner is satisfied that a “continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health”. The Explanations to Section 3 however also contemplate termination of pregnancy when the same is the result of a rape or a failure of birth control methods since both of these eventualities have been equated with a “grave injury to the mental health” of a woman.”

Furthermore, the Bench then observes in para 15 that, “This Court in Writ Petition No.20961/2017-Sundarlal Vs. The State of M.P. & others, decided on 6.12.2017, was dealing with the case of minor daughter of the petitioner, who was kidnapped and a First Information Report at his instance was registered under Sections 363, 366, 376 of the IPC read with Section 4 and 6 of the Protection of Children From Sexual Offences Act, 2012 against the accused. The police secured the custody of the minor daughter of the petitioner, who was handed over to the petitioner. On medical examination, she was found to be carrying pregnancy of about 16 weeks. The petitioner being guardian gave consent for termination of the pregnancy of his minor daughter. This Court while directing constitution of a committee of three medical practitioners to form bonafide opinion as to termination of pregnancy and retention of DNA sample of fetus and providing all medical assistance and care to the victim observed as under:-

“12. In Explanation I, the law makers made it clear that where pregnancy is alleged by victim because of rape, a presumption can be drawn that such pregnancy constitute a grave injury to the mental health of pregnant woman. In the present case, this is not in dispute that victim is a minor and petitioner is praying for termination of pregnancy because her daughter is a rape victim. This court in Hallo Bi (supra) (Hallo Bi @ Halima Vs. State of M.P. & others 2013 (1) MPHT 451) opined that we cannot force a victim of violent rape/forced sex to give birth to a child of a rapist. The anguish and the humiliation which the victim is suffering daily, will certainly cause a grave injury to her mental health. Not only this, the child will also suffer mental anguish in case the lady gives birth to a child.””

Going ahead, the Bench then observes in para 16 that, “The Rajasthan High Court in Victim (A) Vs. State of Rajasthan & others, S.B.Criminal Writ Petition No.148/2020, decided on 26.2.2020, was dealing with the case where the Medical Board had opined the age of the fetus to be 23 +/- 2 weeks. Relying on the decision of the Supreme Court in Meera Santosh Pal & others Vs. Union of India & others (2017) 3 SCC 462, where permission was granted for termination of pregnancy of a term of 24 weeks and another judgment of the same High Court in Nisha Vaishnav Vs. State of Rajasthan S.B. Civil Writ Petition No.1271/2019, decided on 29.1.2019, the High Court allowed termination of pregnancy, in view of aforesaid Explanation (2) to Section 3(2) of the MTP Act as it was a case where a minor victim was subjected to rape and held that anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the petitioner.”

As we see, the Bench then observes in para 17 that, “In ABC Vs. State of Chhattisgarh & others, Writ Petition (C) No.2294/2021, vide judgment dated 25.06.2021, the High Court of Chhattisgarh dealing in a case of rape victim bearing pregnancy of 14 weeks and 3 days, relying on the judgment of Supreme Court in Meera Santosh Pal (supra) permitted the termination of pregnancy, holding thus:

“8. The explanation clause of Section 3 of MTP Act takes within its ambit not only the physical injury but also to mental injury and anguish. It is obvious that if the victim is subjected to rape and if she is forced to give birth to a child in the social scenario she has to face a life time anguish apart from the fact the child who is born will also have to face disdain of the society. Under the circumstances, it is directed that the petitioner shall be entitled to Medical termination of pregnancy. In order to carry out the pregnancy State shall form a panel of expert doctors at the District Hospital Durg as early as possible. The hospital shall take due care of the petitioner’s health and provide her all medical support. It is further directed that the DNA of the child shall also be preserved considering the fact that the victim has already lodged a report under Section 373 which will eventually be required at a future date. The petitioner is directed to appear at District Hospital Durg on Wednesday i.e. 23.06.2021.””

Moving on, the Bench then brings out in para 18 that, “The Bombay High Court in X Vs. Union of India & others 2018 (2) Mh.L.J. 46, was dealing with a case of victim who was mentally retarded, deaf and dumb and her pregnancy was of 18-19 weeks. The case of the guardian before the Court, like in the present case, was that the victim was unable to take care of herself and therefore, she would not be able to take care of the fetus. The Court relying on the judgment of the Supreme Court in Suchita Srivastava (supra) held as under:-

“13. The crucial question here is whether permission can be granted to terminate the pregnancy of 22 weeks in this case. The victim in this case is deaf, dumb and mentally retarded; therefore, she is unable to make a choice on her own whether to terminate the pregnancy or to continue with it. She has no such intellectual capacity, therefore, her guardian should be given that right to make choice. This case is also required to be considered from the physical point of view of the victim. Victim is deaf, dumb and mentally retarded. She is unable to take any decision. In fact, she is not even aware that she has been raped and she is pregnant. It has been stated by her guardian and brother that she is not even able to take care of herself. Question therefore arises under such circumstance as to how she would take care of child to be borne? It has been stated in the medical certificate that “On Paediatrics examination, survivor has gross development delay with Down Syndrome”. If we consider “Down Syndrome”, it means “is a genetic disorder caused by the presence of all or part of a third copy of chromosome”. It is typically associated with physical growth delays, characteristic facial features and mild to moderate intellectual disability. The medical literature would show that there is no cure to the “down syndrome”. No doubt, a person with down syndrome may lead a normal life, but in the present case, when the victim is unable to take care of herself, there is every possibility that she will not be able to take care of the foetus. Though the certificate states that the risk of termination of pregnancy is within normal acceptable limits; it would be hazardous to ask her to bear the pregnancy. It is not only dangerous to her, but dangerous to the unborn child also. Apart from danger to the life of the petitioner, this Court has to take note of the psychological trauma the petitioner is undergoing as a result of carrying unwanted pregnancy. The pregnancy of the petitioner is definitely unwanted for her and it is violative of her personal liberty. Since she is unable to take decision due to intellectual disability, her guardian is taking the said decision, which is in the best interest of the victim and her survival. In the circumstances, we do not notice any impediment in permitting petitioner to terminate unwanted pregnancy.” (emphasis supplied).”

Yet while mentioning another case law, the Bench then states in para 19 that, “In Z Vs. State of Bihar and others (2018) 11 SCC 572, the Supreme Court was dealing with a case of mentally retarded rape victim, who was found to be pregnant and was also HIV positive. The issue before the High Court was whether medical termination of pregnancy should be permitted. The High Court having relied on doctrine of “parens patriae” and “compelling State interest” declined medical termination of pregnancy, which had advanced in 23-24 weeks. The Supreme Court on detailed analysis reversed the verdict of the High Court. Explanation 2 to Section 3(2)(b), which has been relied by the learned counsel for the petitioner, was at that time Explanation 1, which provided that where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the same has to be presumed to constitute a grave injury to the mental health of the pregnant woman. The Supreme Court held that once such a statutory presumption is provided, the same comes within the compartment of grave injury to mental health of the victim. Following observations made by the Supreme Court in paras 23 are worth quoting:-

“23. We have already anlaysed in detail the factual score and the approach of the High Court. We do not have the slightest hesitation in saying that the approach of the High Court is completely erroneous. The report submitted by the IGIMS stated that termination of pregnancy may need major surgical procedure along with subsequent consequences such as bleeding, sepsis and anesthesia hazards, but there was no opinion that the termination could not be carried out and it was risky to the life of the appellant. There should have been a query in this regard by the High Court which it did not do. That apart, the report shows that the appellant, who was a writ petitioner before the High Court, was suffering from mild mental retardation and she was on medications and her condition was stable and she would require long term psychiatry treatment. The Medical Board has not stated that she was suffering from any kind of mental illness. The appellant was thirty-five years old at that time. She was a major. She was able to allege that she had been raped and that she wanted to terminate her pregnancy. PMCH, as we find, is definitely a place where pregnancy can be terminated.””

As if this is not enough, the Bench then further adds in para 20 that, “The Division Bench of Bombay High Court in a case on its own motion in XYZ Vs. Union of India and others, 2019 SCC OnLine Bom 560=(2019) 3 Bom CR 400 held that a woman’s decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman. An abortion is a carefully considered decision taken by a woman who fears that the welfare of the child she already has, and of other members of the household that she is obliged to care for with limited financial and other resources, may be compromised by the birth of another child. These are decisions taken by responsible women who have few other options. They are women who would ideally have preferred to prevent an unwanted pregnancy, but were unable to do so. If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health. The Division Bench referred to certain international treaties concerning human rights. In that context, the Division Bench observed that the pregnancy takes place within the body of a woman and has profound effects on her health, mental well being and life. Thus, how she wants to deal with this pregnancy must be a decision she and she alone can make. The right to control her own body and fertility and motherhood choices should be left to the women alone. The basic right of a woman is the right to autonomy, which includes the right to decide whether or not to get pregnant and stay pregnant.”

It is worth noting that the Bench then observes in para 21 that, “While dealing with Explanation 1 of Section 3(2) of the MTP Act, which after amendment is now Explanation 2, the Bombay High Court in the above case observed that this Explanation expands the concept of “grave injury to mental health” by raising a presumption that anguish caused by any pregnancy as a result of rape shall be presumed to constitute a grave injury to the mental health of a pregnant woman. In fact, the Explanation states that where pregnancy is alleged by a pregnant woman to have been caused by rape, anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of a pregnant woman. Therefore, for the purposes of Section 3(2) of the MTP Act, the expression “grave injury to mental health”, is used in a liberal sense by the legislature itself and further Section 3(3) of the MTP Act, in terms provides that in determining whether continuance of pregnancy would involve such risk of injury to the health as is mentioned in Section 3(2), account may be taken of the pregnant woman’s actual or reasonable foreseeable environment. Section 3(3) of the MTP Act, makes reference not merely to physical injury but also to mental injury. In fact, the aspect of a pregnant woman’s actual or reasonable foreseeable environment has greater nexus to aspect of mental health as compared to physical health, particularly in the present context. This legislative liberality when it comes to expanding the concept of the grave injury to mental health cannot evaporate no sooner the ceiling of 24 weeks prescribed in Section 3(2)(b) of the MTP Act is crossed. If the expression “life” in Section 5(1) of the MTP Act is not to be confined to mere physical existence or survival, then, permission will have to be granted under section 5(1) of the MTP Act for medical termination of pregnancy which may have exceeded 24 weeks, if the continuance of such pregnancy would involve grave injury to the mental health of the pregnant woman.”

Most significantly, the Bench then most commendably holds in para 22 that, “Curial question that we posed to ourselves at the beginning of this judgment still is whether this Court in the facts of the present case, would be justified in refusing to permit medical termination of pregnancy? According to Medical Board, the victim has history of delayed milestone, poor understanding, poor self-care, inabilities to speak, drooling of saliva since childhood. The Medical Board further opined that on examination, it was found that patient is unable to take care of self, her hygiene is very poor and her intellectual abilities are poor. In view of these factors, patient was opined to suffer from SEVERE MENTAL RETARDATION WITH BEHAVIORAL PROBLEMS. The Medical Board was further of the view that mental age of the victim is that of a minor, being only 6 years. According to them, she is unable to take care of herself and, therefore, she would not be able to take care of the fetus. In our considered view, in a situation like this, it would be hazardous to allow her to continue with the pregnancy till full duration. It may even be more dangerous to the unborn child too. In facts like these, this Court cannot lose sight of the psychological trauma the victim would have to undergo all this time. She being not in a position to take a decision due to her intellectual deficiency, decision of her guardian to consent for termination of unwanted pregnancy has to be accepted as a move in her best interest. Not permitting the rape victim in the present case to go in for medical termination of unwanted pregnancy would amount to compelling her to continue to bear such pregnancy for full duration and deliver the child, which would be violative of her bodily integrity, which would not only aggravate her mental trauma but would also have devastating effect on her overall health including on psychological and mental aspects. This is violative of her personal liberty, to borrow the words of the Supreme Court in Suchita Srivastava (supra), (para 22) because “a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India”. In the peculiar facts of the case, her personal integrity has to be respected.”

For the sake of clarity, the Bench then notes in para 23 that, “Explanation 2 to Section 3(2) of the MTP Act has expanded the scope of “grave injury to mental health” by raising a presumption that “the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman”. “Such pregnancy” here refers to pregnancy “alleged to have been caused by rape”. Thus, the legislature has by providing for raising such presumption rather expanded the meaning of the expression “grave injury to mental health” of the rape victim for deciding whether it would constitute a grave risk to the mental health of the pregnant woman in the meaning of Section 3(2)(i) of the MTP Act. The Court would also be entitled to reasonably visualise the environment in which the victim will have to live in immediate foreseeable future to decide the question of her mental health.”

As a corollary, the Bench then holds in para 24 that, “In view of the above discussion, the present writ petition seeking permission for medical termination of pregnancy of the Victim-A, daughter of the petitioner, is allowed. She shall be produced before the Medical Superintendent, Hamidia Hospital, Bhopal by tomorrow, who is directed to ensure the medical termination of the pregnancy of Victim-A under the supervision of the experts at the earliest by taking all the precautions. The Superintendent of Police, Hoshangabad shall arrange for transportation of the Victim-A along with her parents to Hamidia Hospital, Bhopal. It is further directed that DNA sample of the fetus shall be saved for the purposes of evidence to be led by the prosecution before the Court in the criminal case of rape registered in the matter. All expenses shall be borne by the State.”

It is then stated in para 25 that, “Since this Court was persuaded to allow the writ petition on applying provisions of Section 3(2)(i) read with its Explanation-2 to the facts of the case, the question of constitutional validity of Section 3(2)(ii) was left untouched.” Finally, the Bench then states in para 26 that, “The writ petition is accordingly disposed of.”

Overall, it is a very learned, laudable and landmark judgment by a Division Bench of Madhya Pradesh High Court comprising of Chief Justice Mohammad Rafiq and Justice Vijay Kumar Shukla. It refers to latest and also relevant case laws like Z Vs. State of Bihar and others (2018) 11 SCC 572 Murugan Nayakkar Vs. Union of India & others (2017) SCC Online SC 1902 Meera Santosh Pal & others Vs. Union of India & others (2017) 3 SCC 462 Suchita Srivastava & Another Vs. Chandigarh Administration (2009) 9 SCC 1 Tapasya Umesh Pisal Vs. Union of India & others (2008) 12 SCC 57 XYZ Vs. Union of India & others, 2019 SCC OnLine Bom 560=(2019) 3 Bom CR 400 Kalpana Singh Vs. Government of NCT of Delhi & others, WP(C) No.115/2021 decided on 11.1.2021 Sundarlal Vs. The State of M.P. & others, W.P.No.20961/2017-decided on 6.12.2017 Victim (A) Vs. State of Rajasthan & others, S.B.Criminal W.P.No.148/2020, decided on 26.2.2020 ABC Vs. State of Chhattisgarh & others, W.P. (C) No.2294/2021 decided on 25.06.2021. A right decision was taken to protect the paramount interest of the mentally challenged rape victim and it was very rightly held that not permitting her to undergo medical termination of unwarranted pregnancy would be violative of her bodily integrity. Very rightly so!

Sanjeev Sirohi, Advocate

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Under the Indian constitutional scheme, the President is a constitutional head of the Union Government who exercises his constitutional powers and functions on the aid and advice of the Council of Ministers headed by the Prime Minister as per the mandate of Article 74(1) of the Constitution. However, after the 44th Constitutional Amendment Act, 1978, the President has been empowered to return the advice to the Cabinet for its reconsideration but thereafter he is bound to accept the Cabinet’s advice if it reiterates the same. Now, this is a well-settled position after some landmark judgments of the Supreme Court such as Samsher Singh, Maru Ram, S. R. Bommai, etc. There are only a few areas where the President can act at his own discretion, but the matters relating to judicial appointments do not fall under that category. In these kinds of matters, the President acts on the advice of the Prime Minister, who takes inputs and assistance from the Union Minister of Law and Justice and other departments and agencies of the Government of India. The President issues the formal warrant of appointments of judges of the Supreme Court and High Courts as per Article 124 and 217 of the Constitution respectively to complete the constitutional formalities. After a few judgments of the Supreme Court on the issue of judges’ appointments, it is also well-established that the President of India has to act on the advice of the Supreme Court collegium headed by the Chief Justice of India (CJI) in making judges’ appointments, and if the Prime Minister gives him a piece of different advice, the President should ignore the same. This reflects the primacy of the judiciary over the executive in matters related to judicial appoints. Let us elaborate on this issue with the support of judicial rulings.

In the Second Judges’ case, a 9-judge Constitution Bench of the Supreme Court categorically observed that the President of India must act on the advice of the Supreme Court collegium in making judicial appointments to the Supreme Court and High Courts. “In view of the provision in Article 74(1), the expression ‘President’ in Articles 124(2) and 217(1) means the President acting in accordance with the advice of the Council of Ministers with the Prime Minister at the head; and the advice given by the Council of Ministers has to accord with the mandate in the Constitution, or, in other words, with the construction made of Articles 124(2) and 217(1) by this Court, in discharge of its constitutional duty to interpret the Constitution. A fortiori, advice given by the Council of Ministers which binds the President and requires him to act in accordance therewith, had to be the advice given in accordance with the constitutional provisions, as interpreted by this Court”, the Apex Court ruled unequivocally. The Supreme Court also stated that the President cannot override the collegium’s view given the mandate of ‘consultation with the Chief Justice of India’ in Articles 124 and 217 of the Constitution. Further, the Court went on to say: “If it were to be held that, notwithstanding the requirement of Articles 124(2) and 217(1) of mandatory consultation with the Chief Justice of India and Chief Justice of the High Court, the Council of Ministers has the unfettered discretion to give contrary advice, ignoring the view of the Chief Justice of India, and the President is bound by Article 74(1), to act in accordance with that advice, then the constitutional purpose of introducing the mandatory requirement of consultation in Articles 124(2) and 217(1) would be frustrated. It is for this reason, that in the matter of appointments of Judges of the superior judiciary, the interaction and harmonisation of Article 74(1) with Articles 124(2) and 217(1) has to be borne in mind, to serve the constitutional purpose. In short in the matter of appointments of Judges of the superior judiciary, the constitutional requirement is, that the President is to act in accordance with the advice of the Council of Ministers as provided in Article 74(1); and the advice of the Council of Ministers is to be given in accordance with Articles 124(2) and 217(1), as construed by this Court. In this sphere, Article 74(1) is circumscribed by the requirement of Articles 124(2) and 217(1) and all of them have to be read together”.

Thus, the above-mentioned observations of the Supreme Court, which have been followed consistently in the Third, and Fourth Judges’ cases also, make it clear that the President of India has to act according to the recommendation of the Supreme Court collegium headed by the Chief Justice of India, not on the advice of the Prime Minister that goes against the collegium’s view. But the Supreme Court collegium is required to sends unanimous recommendations to President through the Union Minister of Law and Justice and the Prime Minister. Admittedly, the Union Cabinet does not come into the picture in making judges’ appointments and only the law minister and the Prime Minister decide the matter. Although the President and the Central Government are bound to act according to the collegium’s recommendations, they have a limited say in the entire process of making judicial appointments. The Central Government can raise objections against any recommendation of the collegium by mentioning cogent reasons about the antecedents or integrity of the recommended persons and the CJI needs to share the same with his collegium colleagues but the collegium has the power to reject the Central Government’s objections and can reiterate its recommendations which are binding on the government as well as the President.

Also, such recommendations should be passed unanimously by the collegium. If the CJI sends a recommendation by ignoring his collegium colleagues, the President is not bound to accept such recommendation. On the other hand, the four collegium members can also not send their recommendations to the President of India by ignoring the CJI. In these matters, the CJI is the main link between the collegium and the government including the President of India. This is a participative process devised to protect the independence of the judiciary.

Given the above discussion, it is submitted that the President of India has a ceremonial role in making judicial appointments to the Supreme Court and High Courts. He acts on the advice of the Prime Minister and the Union Law Minister in matters regarding judges’ appointments but these constitutional functionaries cannot advise him to bypass the recommendation of the Supreme Court collegium. Of course, they can persuade him to return the matter to the collegium for its reconsideration by recording cogent reasons if they find something objectionable against a person recommended by the collegium. The President may ask the collegium to reconsider its recommendation and can also seek any clarification either from the collegium or the government regarding any file that is sent to him for his approval. He can also make his comments about the case and ask the government to look into the matter. The media reports indicate that in November 1998, while giving his assent to the names of judges on the file, then President K. R. Narayanan had written: “I would like to record my views that while recommending the appointment of Supreme Court judges, it would be consonant with constitutional principles and the nation’s social objectives if persons belonging to weaker sections of society like SCs and STs, who comprise 25 percent of the population, and women are given due consideration.”

Further, the President went on to note: “Eligible persons from these categories are available and their underrepresentation or non-representation would not be justifiable. Keeping vacancies unfilled is also not desirable given the need for representation of different sections of society and the volume of work which the Supreme Court is required to handle”. The President cannot do much. President Narayanan was an active President who read the file thoroughly and did not hesitate to express his views.

Former President Pranab Mukherjee, in his book titled “The Presidential Years” has also criticized the collegium system in these words: “I have serious doubts about the present arrangement, and the judiciary ought to relook into the issue. The country is run by a political system in which members, who sit in Parliament and assemblies, are elected by the people. They represent the collective will of the people, and nobody can ignore this reality. The precollegium system had existed for years since 1950, and there had been no major problems that necessitated a change.”

It is submitted that the President of India has a ceremonial role in making judicial appointments to the Supreme Court and High Courts. He acts on the advice of the Prime Minister and the Union Law Minister in matters regarding judges’ appointments, but these constitutional functionaries cannot advise him to bypass the recommendation of the Supreme Court Collegium. Of course, they can persuade him to return the matter to the collegium for its reconsideration by recording cogent reasons if they find something objectionable against a person recommended by the Collegium.

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SOCIAL MEDIA AND CRIMES: AN ENTANGLED RELATIONSHIP

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“The internet is becoming the town square for the global village of tomorrow.”

-Bill Gates

The internet has been in existence since 1960’s and the World Wide Web (WWW) since 1990’s. The internet has now become all encompassing; it touches the lives of every human being. In today’s time, social media is a well-known name for every person. Merriam-Webster Dictionary defines social media as “forms of electronic communication (such as websites for social networking and micro-blogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos). Now-a-days, no letter or telegram (not a play-store application) is needed to share information. A fast medium to exchange views globally has been evolved in this fast-pacing world. Social Media has radically changed the lives of the people – for good or for bad – is a questionable matter. As social media has become an inevitable part of our lives criminal activities relating to social media has also become an inseparable part of social media. The social media has given the room for criminal activities to flourish in an online mode. No person – be it individuals, government agencies or any other private companies – has been left unconscious with the advantages of social media. However, technology while providing so many perks pose threats to individuals and the world. The creation of a virtual world where people can share information, exchange pictures, become friends, play games, fall in love, fight, etc. without having actually meeting face-to-face is the major reason behind the popularity of social media. The social media has imposed threats on the security, privacy and also the dignity of the people, which has hiked the cyber violence and puts forward a challenging mess at a global level.

SOME STATISTICS TO WONDER

In recent times, there has been a spurt in the number of users of social networking sites, especially due to Covid-19 pandemic. It can be seen from the rise in the Facebook users from 2.45 billion monthly users in 2019 to 270 billion monthly active users by June 2020 with an increment rate of 12% over a year. The International Telecommunications Union estimates that almost 40% of the world’s population and over 76% of people in developed countries are now internet users. According to the Chief of NIA (National Investigating Agency), Alok Mittal, “every sixth cyber-crime in India is committed through social media.” There were around 150 cases of cyber-crimes on social media in our country in 2016, which increased to around 300 cases in 2017. Fraud cases on social media have also increased by 43% in 2018. Approximate 44,546 cases were registered under the cyber-crime head in 2019 as compared to 27,248 cases in 2018. Therefore, a rise of 63.5% was observed in cyber-crimes by National Crime Reporting Bureau. These statistics are worthy of considering the fact that along with an increase in the number of users, there has also been a spike in the cyber-crime cases.

IMPACT OF SOCIAL MEDIA

We are generally aware of the benefits of the internet; however, its anonymous nature allows miscreants to indulge in various cyber-crimes. Taking the positive side into consideration, social networking sites allow users to connect with the families and friends within seconds residing far away from them through audio and video calls, chat-rooms and many other functions provided by it, which helps in bridging the gap between persons. The people can remain updated about the worldly affairs just with a click on their devices. The social networking sites also help in finding and providing appropriate employment and educational opportunities to finders of the same. More importantly, social media is the easiest way to express opinions and views. Therefore, social media makes life accessible and enjoyable for the people.

Nonetheless, keeping negative side in view, social media also leads to social isolation as in face-to-face interaction has become minimal in the times of pandemic. This, in turn, affects the mental, emotional, psychological health of the people and causes anxiety, fear of missing out, depression and many other issues. Privacy, these days, has become a matter of concern. The third party uses the private information of the individuals and commits cyber-bullying and cyber-theft among teenagers. The spread of obscene content on the social media makes the youth vulnerable to these things. They lose their productivity in online chatting all day. Also, the misinformation spreads faster rather than relevant one, which can be for any purpose such as advancing enmity between various ethnic and religious groups or misleading people, and aggravates virtual hate crimes.

Thus, the underlying fact is that social media has become an indispensable part of our lifestyle. And, virtual space, therefore, becomes a relatively new terrain in terms of the questions it raises about human rights and responsibilities.

CYBER-CRIMES: MEANING AND CATEGORISATION

Cyber-crime has not been defined in any statute or rulebook. However, it is a culmination of two terms, that is, cyber and crime. Interestingly, the word ‘cyber’ is slang for anything relating to computers, information technology and internet. And, the word ‘crime’ refers to the commission of an illegal activity. Accordingly, the term ‘cyber-crime’ can be inferred as the offences committed using the medium of computers, cyber-space, world wide web, or internet. Therefore, cyber-crimes involve a computer and a network.

Cyber-crimes are “Offences that are committed against individuals or group of individuals with a criminal motive to intentionally harm the reputation of the victim or cause physical or mental harm to the victim directly or indirectly, using modern telecommunication networks such as Internet (Chat-rooms, e-mails, notice boards and groups) and mobile phones (SMS/MMS)”, defines Dr. Debarati Halder and Dr. K. Jaishankar.

Cyber-crimes can be broadly categorized into three groups against which these crimes can be committed, namely, individual, property and government.

• Individual – Cyber-crimes in the form of cyber-stalking, distributing pornography, trafficking and ‘grooming’ can be included under this category. These crimes are rapidly increasing worldwide.

• Property – Just as the traditional theft of property is committed, in the like manner, the stealing of the personal data can be committed over a computer by using malicious software. Cyber frauds and scams are also prevalent these days.

• Government – Cyber-crimes against government involves cyber-terrorism, which can cause devastation to public and create a panicking situation, if criminals get successful in circulating propaganda by hacking government databases. Recent ‘toolkit’ cases also form a part of this category.

Therefore, it can be sought from the above discussion that either the computer may be used for committing the offence, or the computer may be the target.

TYPES OF CYBER-CRIMES

In the National Cyber-crime Reporting Portal, the following types of cyber-crimes have been discussed –

• Social Media Related Crimes

(i) Cyber Bullying/Stalking/Sexting – The attacker uses the internet and other electronic devices to continuously harass the victim. Also, bullying incidents are committed using online communication medium like e-mail, social networking sites, messengers, etc. to exploit, threaten, embarrass and humiliate the victim. Sexting includes sending and receiving of offending sexual words, pictures, or videos via technology, especially mobile phones.

(ii) E-mail Phishing – The recipient is tricked by designing a fraudulent e-mail message to be a legitimate person or organization, so that, the recipient shares personal information including passwords, bank account numbers.

(iii) E-mail and Profile Hacking – A person’s device – computer, laptop or mobile phone – is broken into by the criminal by using a variety of software and gets the access to the person’s sensitive information embedded in the device from remote location. Such information is then misused by the hacker, which causes trouble to the victim of hacking.

(iv) Fake/Impersonating Profile and E-mail – A fake profile of the victim is created in any platform and then the rumours and objectionable material on social media and instant messaging platforms is circulated to cheat or defame the victim or others.

(v) Online Job Fraud – The incident involves deceiving somebody who is seeking employment by alluring them of employment or of earning high salaries or of extra income and then cheat that person by taking money.

(vi) Online Matrimonial Fraud – The fake profiles on various matrimonial websites are created for cheating purposes.

(vii) Provocative Speech and Intimidating E-mails – The perpetrators send provocative and threatening messages on the victim’s devices by e-mail or any other electronic means.

• Online Financial Frauds

(i) Business Frauds/ E-mail Takeover – The monetary frauds are committed by compromising or taking over business e-mails.

(ii) Debit Card/ Credit Card/ E-wallet/ SIM Swap Fraud – Without the knowledge of the card-holder, the fraudulent online transactions take place in their bank accounts through debit or credit cards or e-wallets.

(iii) Fraud Call/ Vishing – These instances involve receiving of fraud phone calls that appears to be from their bank. The caller pretends to be professional bank representative. This is done with an attempt to seek personal information of the receiver such as Customer ID, Net Banking Password, ATM PIN, OTP, Card Expiry Date, CVV, etc. These fraud calls also include fake, lottery or travel scam calls.

(iv) Internet Banking Related Fraud – It is a fraud or theft committed using e-technology to illicitly remove money from a bank account or transfer money to a different bank account.

(v) Cryptocurrency Related Fraud – India is not having any legal framework to deal with cryptocurrencies. Due to this, the criminals operating on the dark or hidden web use these currencies by raising suspicious requests for business transactions in Bitcoins.

(vi) Salami Attacks – To commit financial crimes, these salami attacks are planned. These attacks involve making unnoticeable alterations to facilitate easy concealment so that it would go unnoticed.

• Other Cyber-crimes

(i) Ransomware – It is a type of computer malware that locks the data holding it as hostage on devices such as computers, laptops, mobile phones, etc. Then, the victim will be asked to pay the ransom as demanded by the perpetrator in some cryptocurrency to get the device unlocked without the guarantee of getting the data unlocked even after paying the ransom.

(ii) Cyber-attacks – There are various types of attacks that can be committed by the criminals such as – Denial of Service (DOS) Attack, Virus/Worm Attacks, Malware/Spyware Attacks. Some unknown applications are downloaded on the user’s device, which halts the functioning of the computer system and causes harm to the user.

(iii) Intellectual Property Rights Violation – IPR theft is described as the theft of copyrighted material, the theft of trade secrets and trademark violations. It also includes piracy in which the person violates the copyrights and downloads music, games, movies and software unlawfully.

(iv) Hacking – These incidents involve accessing unauthorized gain from the person’s device without their permission. It also includes website defacement in which the website is attacked that changes the visual appearance of the site or a webpage. It is also known as web-jacking.

(v) Online Trafficking – The incidents of connecting over social media to buy drugs, or other regulated, controlled or banned products, or victim’s recruitment, advertising trafficking such as women, children, laborer, child pornography, selling of organs, etc. are committed using the cyberspace.

(vi) Online Gambling – This is done by providing illegal online gambling links or content through SMS or other messaging platforms such as WhatsApp, Hike, etc.

(vii) Cyber-chasing – It is a process by which a person’s location is provided by using data which is available online. Geotagging has become a trend these days.

Surprisingly, there are ‘n’ number of ways of committing these crimes. The above-mentioned ways are only handful in number by which cybercrimes are committed. To prevent these crimes, India had enacted a legislation way back in 2000’s known as Information Technology Act, 2000.

INDIAN LEGISLATIVE FRAMEWORK

Article 19(1)(a) of the Indian Constitution provides for the ‘right to freedom of speech and expression’, giving citizens the freedom to express their views by whatever medium they think fit. Therefore, the medium can be offline and online. This creates an obligation on the government that “the same rights that people have offline must also be protected online.” Therefore, keeping pace with the changing generation, the Parliament of India enacted the Information and Technology Act, 2000, which was conceptualized on the model of United Nations Commissions on International Trade Law (UNCITRAL) recommended by the United Nations General Assembly (UNGA).

Later, in 2008, the Act was amended giving a new dimension to the IT Laws in the country.

The Act was enacted with an objective “to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, the Banker’s Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto.” The Act extends to the whole of India and it applies also to any offence or contravention committed outside India by any person.

The existing IT Act consists of 13 Chapters, having 90 Provisions and 2 Schedules. Out of these 13 Chapters, Chapter XI (Section 65 – Section 78) is of utmost importance as it provides for the offences under the Act. The Act covers the following offences –

The Act provides for a wide range of penalties to be inflicted upon the perpetrators of the above-mentioned offences. Also, the computer and other devices are made liable to be confiscated if contravenes the provisions of the Act under Section 76. Further, the Act has made certain offences compoundable. Section 77A describes that unless the offence has been committed against women, or children below the age of 18 years, or affects the socio-economic conditions of the country, it can be compounded by the competent adjudicating authority if the punishment does not exceed 3 years of imprisonment. The offences punishable with imprisonment of three years and above shall be cognizable and the offences punishable with imprisonment of three years shall be bailable. To investigate cyber offences under the Act, the police officer not below the rank of Inspector, has been given the powers. Interestingly, Section 70A and Section 70B of the Act are worth noticing as they lay out the establishment of National Nodal Agency and Indian Computer Emergency Response Team respectively for ensuring the cyber-security of the country.

Although the IT Act is not all encompassing relating to the offences it covers, but other legislations such as Indian Penal Code, 1860 fulfil the pressing priority.

LANDMARK JUDGEMENTS OF INDIAN COURTS

To trace the evolution of cyber law regime in India, it is apt to refer to the landmark judgments delivered by the Indian Courts. The judgments are provided as under –

• Shreya Singhal v. Union of India

The Hon’ble Supreme Court, in the instant case, dealt with the validity of Section 66A of the IT Act. A petition was filed alleging that Section 66A violated the fundamental right of free speech and expression, thus, challenging its constitutionality. In its decision, the Court reiterated the three concepts of discussion, advocacy and incitement. It observed that “mere discussion or even advocacy of a cause, no matter how unpopular, is at the heart of the freedom of speech and expression.” It was found that “Section 66A was capable of restricting all forms of communication and it contained no distinction between mere advocacy or discussion on a particular cause which is offensive to some and incitement by such words leading to a causal connection to public disorder, security, health, and so on.” Therefore, the Supreme Court of India struck down Section 66A of the IT Act, 2000 in its entirety.

Syed Asifuddin and Others v. State of Andhra Pradesh and Another

In this case, the Court held that a telephone handset covers under the ambit of “computer” as defined under Section 2(1)(i) of the IT Act. The Court, further, stated that alteration of ESN is an offence under Section 65 of the IT Act which provides for the tampering of the computer source document.

• Avnish Bajaj v. State of (NCT) of Delhi

In this case, the three persons were arrested namely – Delhi School-boy, IIT Kharagpur’s Ravi Raj and the service provider Avnish Bajaj – under Section 67 of the IT Act, 2000 and other provisions of IPC, 1860 regarding obscenity. The Court gave a judgment in favour of the service provider Mr. Bajaj stating the fact that he is nowhere involved in the broadcasting of pornographic material. The school-boy was granted bail by Juvenile Justice Board. However, the burden lies on the accused that he was merely the service provider and does not provide content.

• State of Tamil Nadu v. Suhas Katti

This case involved an accused opening a fake e-mail account in the name of the victim and posted defamatory, obscene and annoying information about the victim because of some previous differences between the victim and the accused. A charge-sheet was filed u/s 67 of the IT Act and 469 and 509 of the IPC, 1860. The Additional Chief Metropolitan Magistrate, Egmore convicted the accused person under the said offences. It is a landmark case for its efficient handling and disposal of case within 7 months from the date of filing of FIR.

SMC Pneumatics (India) Private Limited v. Jogesh Kwatra

In this case, due to the lack of direct evidence that defendant was the one who was involved in sending the defamatory, derogatory, vulgar, abusive and filthy e-mails to his employers and to different subsidiaries of the said company, the Court did not give plaintiffs the relief of perpetual injunction as prayed as the Court did not qualify the certified evidence u/s 65B of the Indian Evidence Act, 1872. However, the Court restrained the defendant from publishing or transmitting any derogatory information in the cyber-space about the plaintiffs.

The cases discussed are just a handful of instances of happening of the cyber-crimes. These crimes are exploding all over the country and the world. Despite of inexhaustive nature of the IT Act, the Indian Courts are handling these matters in the best of their capabilities to meet the ends of justice.

THE WAY FORWARD

To cope with the challenges that this techno-savvy world put forward, revamp in the cyber-security has become an absolute necessity. There needs to be a way forward. Some of the suggestive measures that could be taken to enhance security in the cyber-space are as follows-

The proportional growth of cyber-related laws all over the globe is the first and foremost measure that needs to be taken. Due to this disproportionality, the problem aggravates. Yes, the IT Act and amendments in IPC has given India a good start, but complexities in these acts prevail.

As the cyber-crimes know no territorial boundaries, the jurisdiction becomes a debatable problem. Therefore, the concept of territorial jurisdiction under Criminal Procedure Code, 1973 and Indian Penal Code, 1860 needs a re-look.

To prevent the loss of information and evidence, a highly technical staff to build an infrastructure related to e-crimes and investigation is the need of the hour.

Section 75 of the IT Act, 2000 discusses about the extra-territorial jurisdiction of the statute. But this could be made an effective provision only when competent authorities will issue warrants and directions for the sharing of information and evidence regarding cyber-crimes between enforcement agencies.

Along with these measures, to adjudicate the cyber-crimes, the judges having cyber and technology knowledge are exigent. Judiciary plays the role of the mediator in realizing the enactment consistent with the social order.

Finally, simple measures such as using of anti-virus software, avoiding misuse of personal information with any stranger, secured e-payments, not clicking on any unauthorized links, should be adopted by keeping vigilance and awareness intact.

These suggestions are not absolute but can definitely help in tackling cyber-crimes and enhancing cyber-security to some extent. Some reforms in the IT Act and personal awareness can be an aid in checking these e-crimes.

CONCLUSION

Surprisingly, “India was the second most cyber-attacked country in Asia-Pacific in 2020”, read the headline in The New Indian Express Newspaper. This ranking is not a good sign for a country which is having cyber-related laws. These laws are not exhaustive and, therefore, need reforms with the changing need of the hour. The conviction rate in minimal in spite of having stringent laws in the country dealing with cyber-crimes. This is because of the lack of absolute evidences. Therefore, cyber forensics is the new and emerging field and it is encouraged to detect the cyber evidences through appropriate methods. In the country where ‘Media’ is the fourth pillar of democracy, it becomes the responsibility of the media to create awareness among people and not becoming victim of these cyber-crimes itself.

Social Media is a library of information and one of the most easily accessible platform for sharing news, expressing views and spreading propaganda and revolution. It has become the part and parcel of every person’s life. Especially in the times Covid-19 pandemic where everything is happening online, the life is not imaginable without social media and social networking sites. Privacy has just remained a mere nomenclature. Almost all the sites use cookie policy to detect the tastes and preferences of the user. In addition, the incidences of publication of obscene material and the instances like that of ‘Bois Locker Room’ are increasing day-by-day. Thus, it becomes a massive requirement to ensure cyber-security when the world is moving towards a global digitalization.

The moot question of the present paper regarding the analysis of relationship between social media and crimes can be concluded by stating that ‘the relationship between social media and crimes is directly proportional.’ As social media is gaining more and more popularity, the cyber-crime is setting its foot more swiftly and inexplicably.

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Duty to defend: Lawyer’s moral obligation to represent unpopular client

Article 1 mainly focuses on the aspect of equality in dignity and rights. Equality is very essential and even social justice is intrinsically connected to it. Therefore, promoting equality helps in providing legal aid to everyone. Article 7 is even more relevant since it provides that each and every individual is equal before the law and everyone is entitled to legal protection and legal aid without any discrimination.

Jayant Malik

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Maintenance of law and order within a society is of utmost importance and lawyers play a key role in ensuring that law and order is maintained. The profession of a lawyer is a noble one and a lawyer is often seen as someone who fights for the rights of individuals and defends them in the trickiest of situations. But a lawyer is not always applauded or appreciated for his acts and many a times he faces condemnation from the society for defending the guilty or who is often called as the “unpopular client”. So it can be said that the lawyer is equated to both the God and the Devil depending upon the situation.

Even within the Indian legal system the situation is no different. Often the lawyers (especially the criminal lawyers) who decide to defend a client irrespective of the offence they have committed howsoever grave it is, face condemnation and public outrage for their decision of defending such a client. Moreover it is not just the public front from where they face the heat, but they also face fury from the media houses at times. All in all, on several occasions the lawyer is associated to the actions of his client due to which he faces such condemnation. This gives rise to a very important issue i.e. whether the lawyers should be guided by ethical values and notions of justice while selecting to represent any client?.

In this piece I shall deal with this issue and discuss the whole idea of the duty that a lawyer has, to defend his client in great detail along with a client’s right to legal representation. Moreover, I would argue as to why it is important for the lawyers to represent their clients even though they are considered as unpopular clients. Over the years there has been a lot of debate on whether it is morally right for a lawyer to represent an accused. Indian society has most of the times looked down upon such advocates who have decided to defend the accused. 

Through this piece, I would further discuss the concept of “Cab Rank Rule” and would analyse why it becomes important for the lawyer to represent a client irrespective of the guilt of the accused and the thinking of the society. The piece would further throw some light on several landmark judgments wherein the criminal lawyers defended unpopular clients and fulfilled their duty and moral obligation of being a lawyer. Cases where the lawyers defended the accused irrespective of the fact that, they knew the accused had committed the offence and the whole society was against them, such as defending Ajmal Kasab, the terrorist who was involved in the 26/11 attacks, the rapists in the Nirbhaya Rape Case, the case that shook the entire nation and several such other matters. In the end, I would conclude by arguing in favour of a lawyer’s duty to defend and would try and devise a new defensive strategy that can be adopted by the lawyers to justify their actions and to fight against the moral condemnation that they face by the society or the media whenever they defend an unpopular client. 

CLIENT’S RIGHT TO LEGAL REPRESENTATION

While discussing a lawyer’s duty and the moral obligation that he has to defend his client, it is very important to understand that a client is also entitled to legal aid and representation and it becomes essential to discuss a lawyer’s duty to defend vis-à-vis a client’s right to legal representation. An individual is entitled to legal aid and representation and at times when a situation arises where the person who is in need of legal aid is not that financially sound then in such situations there are instruments which state that such person has right to free legal aid. There are several international instruments that provide for an individual’s right to legal aid and representation.

First, it is the Universal Declaration of Human Rights, 1948 (UDHR). A declaration that came into force so as to protect the basic human rights of the individuals. The UDHR has emphasized a lot on the welfare of poor and one of the main objectives of it has been to protect the basic fundamental rights of the people. If the Preamble of the Declaration is looked at carefully it recognises that the rights of the individuals are indeed the foundation of freedom, justice and peace. From its language it is pretty much evident that equality and justice are the main objectives of the declaration and that providing legal aid to the needy becomes sine-qua-non for the achievement of the objective enshrined in the preamble of the UDHR. Some of the relevant articles of the UDHR are Article 1, 7 and 10.

Article 1 mainly focusses on the aspect of equality in dignity and rights. Equality is very essential and even social justice is intrinsically connected to it. Therefore, promoting equality helps in providing legal aid to everyone. Article 7 is even more relevant since it provides that each and every individual is equal before the law and everyone is entitled to legal protection and legal aid without any discrimination. It also states that no person should be denied legal protection and representation just because he does not have the financial capacity and in such situations it is the duty of the state to provide all such people who are in need even if it is out of state expenditure. Moreover it is important to note that several articles of the Indian Constitution hold a close similarity with this provision such as Article 14, 15, 16 and 39A. Article 10 is also pretty relevant as it provides that everyone should get an opportunity to be heard by an independent and impartial tribunal in determination of his rights. Additionally, ‘hearing’ means that the aggrieved person should be heard through a counsel (lawyer). Furthermore, Article 50 of the Indian Constitution holds similarity with this with this provision of the UDHR and is based on a similar concept.

Another international instrument that mandates legal aid and equality before the courts is the International Covenant on Civil and Political Rights (ICCPR). Article 14(1) of the ICCPR explicitly provides that all the persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

Moreover, Article 14(3) lists out certain minimum guarantees that an individual is entitled to while determination of any criminal charge against him, in full equality:

To be informed promptly the nature and cause of the charge against him;

To have an adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

To be tried without undue delay;

To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

Now looking at the Indian perspective, Article 39A of the Indian Constitution provides for the right to legal aid and representation. It provides that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, 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.

Importantly, we must consider the case of Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar, a landmark judgment, where the Supreme Court held in favour of the under trial prisoners who were imprisoned for long periods without any justification. Moreover the key take away from the case is that Article 39A is a constitutional directive that emphasizes on the fact that free legal aid and a proper representation is an essential element of the ‘reasonable, fair and just’ procedure. Further this right is to be considered implicit in the guarantee of Article 21.

THE MORAL OBLIGATION OF LAWYER TO DEFEND THE UNPOPULAR CLIENT

As discussed above the lawyer’s duty to defend arises out of a client’s right to legal aid and representation. Even the individuals who have been accused of committing heinous crimes also have right to legal aid and representation and are entitled to have a fair and just trial.

“Innocent until proven Guilty” is a well-known saying which implies that any individual cannot be convicted for a crime until he is proven guilty of committing the said offence. According to this, the onus of proving the guilt of the accused lies on the prosecution and the job of the defence counsel is to poke holes in the theory of the prosecution. Consequently, a defence lawyer plays an important role during a legal proceeding. But at times the defence lawyers face the heat of the public and media for defending clients who have been accused of committing heinous crimes such as rape, murder, an act of terrorism etc. and in such situations the dilemma that arises is “whether a lawyer should be guided by ethical values and notion of justice while selecting to represent any client” or “whether a lawyer should be affected by personal opinions and public opinions while choosing to represent a client”.

Especially in India, it is even more relevant because the public more often than not associates a lawyer to the actions of his client and questions his moral and ethical values. Moreover, the public condemns the lawyer who chooses to represent a client that is unpopular or who has committed a grave offence. In response to the aforementioned dilemma, it is first important to understand that a lawyer is an officer of the court and it is his duty to defend his client irrespective of the offence that the client has committed. In other words, a lawyer has not only a moral but also a legal and constitutional obligation to defend his clients to the best of his abilities and that a lawyer cannot allow his personal beliefs or morals to affect his professional duties. This obligation is based out of an English concept known as the “cab-rank” principle/rule.

CAB RANK PRINCIPLE

The “cab-rank” principle basically states that every lawyer must accept the brief that comes before them and provide the necessary legal assistance unless there are compelling reasons to do otherwise. The principle is based on the idea of a cab driver who is standing at the head of a queue at a taxi stand and is supposed to offer his services to the first passenger who approaches for a ride.

It is also pertinent to note that Section 1 of the Advocates Act explicitly mentions about the duties of an advocate towards his client and its rule 11 is based on the “cab-rank” principle. So the “cab-rank” rule has some relevance within the Indian legal system as well. Rule 11 of the Advocates act provides that “An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practise at a fee consistent with his standing at the Bar and the nature of the case: “Special circumstances may justify his refusal to accept a particular brief”. This provision within the Advocates act makes it pretty much clear that the lawyer has a moral obligation to represent his client irrespective of the offence that he has committed. Usually in the practical world, it is not followed though. At times the lawyers refuses to take up a particular case because he fears that taking up such a case would invite public outrage or where he himself feels that his personal morals would not allow him to defend such a client. There have been various landmark cases where either the lawyers refused to take up the case or they faced massive public outrage for defending the accused.

One such case is the case of Ajmal Amir Kasab, the only terrorist who was captured alive during the 26/11 attacks. There was a massive public outrage which was quite understandable considering the horrendous crime that he had committed killing hundreds of innocent people, but does that mean that he should have been hanged straight away without following the due process of law? The answer to it is “No”. An individual who is a dreaded terrorist also has a right to fair trial even if the offence that he has committed and charges that have been levelled against him are as clear as a daylight. In this case the Bombay metropolitan magistrate’s court bar association unanimously decided not to represent the terrorist in court and hence the government appointed Senior Advocate Raju Ramachandran as a state appointed amicus curiae in the case. Post the verdict while giving an interview, Senior Advocate Ramachandran acknowledged the lawyer’s duty to defend and stated “when an accused is undefended the court appoints a lawyer to defend him. To refuse to assist the court, when asked, is a dereliction of duty”.

He further emphasized on the fact that within an adversarial system it is important for an accused to have counsel for a fair trial. He stated that a counsel is important for an accused because the accused has a right to assert his or her innocence and to poke holes in the case of the prosecution. The counsel must say everything in the favour of the accused that needs to be said.

Another prominent criminal lawyer, late shri. Ram Jethmalani also pressed on the fact that no lawyer can refuse to defend an accused until and unless there are compelling reasons for the same and it is the moral duty of a lawyer to provide his services to the accused howsoever unpopular he is. With several lawyers declining to take up the case of the terrorist Ajmal Kasab and denying to provide their services back in 2008, Mr. Ram Jethmalani stated that “there is express rule of Bar Council of India that no lawyer shall refuse to defend a person on the grounds that it will make him unpopular”. Further in an interview he state that “no lawyer has the right to say that he will not defend an accused”. So it is pretty evident that over the years, even the biggest names in the business, have advocated for a lawyer’s duty to defend even though they faced heat of the public and media for defending an unpopular client.

If we look at the Nirbhaya Rape case wherein the four accused were hanged previous year, the situation was a bit different. The lawyers representing the accused in the case gave their all to reduce the death penalty to life imprisonment and to delay the hanging. They tried their best to make a strong case for the accused even though it was an open and shut case. Although the ‘public speeches’ and ‘conduct’ of some of the Nirbhaya Lawyers may be problematic in the eyes of the people, however, they did succeed in providing qualitative legal representation to the convicts throughout the judicial proceedings. In this way, the lawyers representing the accused fulfilled their moral obligation and their duty to defend the accused despite the fact that the crime they committed was a heinous one.

CONCLUSION

In my opinion, the lawyer has a duty to defend an accused irrespective of the crime that he has committed. It is not that a terrorist or a rapist should not be punished for the crime that they have committed but punishing them is the duty of the court when there guilt is proved. A lawyer’s duty is to provide his services to the client and put in his best effort when representing the client. It is also important because if an accused be it a terrorist or rapist is not given a proper representation or an opportunity to present his case, then the fairness of the trial would come into question. When it comes to public outrage or a parallel media trial, a lawyer should not that take that into consideration while choosing a client and instead they should give priority to their professional duties. Lawyers are officers of the court and their primary duty is to provide assistance and aid to their clients and assist the court in deciding the guilt or innocence of individuals. In conclusion, I would like to recall the with wise words of the legendary criminal lawyer late Sh. Ram Jethmalani: “I decide according to my conscience who to defend. A lawyer who refuses to defend a person on the ground that people believe him to be guilty is himself guilty of professional misconduct.”

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Can government impose restriction on movement?

An analysis of restrictions being put on movement in the light of Covid-19 pandemic.

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INTRODUCTION

At the end of December 2019, the first case of the Coronavirus was reported from the Wuhan Municipal Health Commission, China. Subsequently, the virus spreads around the globe. Later on, at the end of January 2020, the first case of the Coronavirus was reported from Kerala. Before this first case, Indians including the citizens and the government were indulged in their work and no one was worried about the same. However, the situation gets in its worst form in just two months. Whereby, the cases increased from one to thousands and the government have no option other than to put the whole nation under the Janta curfew. On the 22nd of March 2020, the Janta curfew was announced and from here the entire citizens were directed to remain in their homes. Furthermore, on the evening of 24th of March, 2020, as per the need of the situation, the ruling government announced the lockdown for twenty-one days whereby it restricted the movement of 1.38 Billion citizens of India. Furthermore, during this time every Everything including Shops and all other services like Flights, Buses, Trains, and all other public transport were on the stand. However, very limited things which include the essential daily goods were permitted which was also subjected to a huge restriction. Moreover, as of the 29th of May 2021, it has affected more than 100 million people and resulted in more than 3.5 million deaths globally. During this time many slogans like ‘Ghar me rahe, surakshit rahe’ were also promoted to tackle this unnatural and unwanted pandemic. In this article, we will see the constitutionality of the Lockdown. Furthermore, we will also see whether the government is authorized to infringe the ‘right to Movement’. 

FREEDOM OF MOVEMENT UNDER ARTICLE 19 OF THE CONSTITUTION

The Supreme law of the land, the constitution of India by virtue of its article 19 gives the right to movement. Article 19 (1) (d) reads as:- Protection of certain rights regarding freedom of speech etc (1) All citizens shall have the right (d) to move freely throughout the territory of India. However, this article is not absolute in nature and the government can impose some restrictions on it. However the same is subject to certain conditions. Article 19 (2 ) authorizes such reasonable restrictions, which reads as:- Nothing in sub-clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It means that if the restrictions imposed are reasonable and if it fulfills the other conditions it will not be violative of the rights given under article 19 (1) (d). In the current scenario, the lockdown was the need of the hour, and thereby it was reasonable and hence the government action was legitimate.

EPIDEMIC ACT AND DISASTER MANAGEMENT ACT

Epidemic Act is India’s 123- years old law which was formulated pre-independence mainly to control plague in the late 1800s. This act authorizes the central and state government to take special measures to control the epidemic. Section 2 of the act reads as :- Power to take special measures and prescribe regulations as to dangerous epidemic disease.—(1) When at any time the 2 [State Government] is satisfied that 2 [the State] or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the 3 [State Government], if 4 [it] thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as 4 [it] shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.

(2) In particular and without prejudice to the generality of the foregoing provisions, the 2 [State Government] may take measures and prescribe regulations for— (b) the inspection of persons travelling by railway or otherwise, and the segregation, in hospital, temporary accommodation or otherwise, of persons suspected by the inspecting officer of being infected with any such disease.

Furthermore, Section 2 A of the said act, talks about the power of the central government, which reads as “:-When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, 8 [the Central Government may take such measures, as it deems fit and prescribe regulations for the inspection of any bus or train or goods vehicle or ship or vessel or aircraft leaving or arriving at any land port or aerodrome, as the case may be, in the territories to which this Act extends and for such detention thereof, or of any person intending to travel therein, or arriving thereby, as may be necessary.]

Disaster Management act is an act of 2005. It stipulates the establishment of a National Disaster Management Authority (NDMA), State Disaster Management Authorities and District Disaster Management Authorities. It was an special act which was passed with the view to tackle with the disaster including the natural as well as man-made. As per the definition provided under Section 2 (e) of the act, a disaster has been defined :- ‘disaster’ as a catastrophe, mishap, calamity or grave occurrence in any area – arising from natural or man-made causes, or by accident or negligence – which results in substantial loss of life, human suffering, or damage to and destruction of property or the environment; and its nature or magnitude is beyond the coping capacity of the community in the affected area.

Furthermore, the ‘Disaster management’ under section 2 (e) of the act is defined as a continuous and integrated process of planning, organising, coordinating and implementing measures necessary to prevent the danger or threat of a disaster; mitigating or reducing the risk of a disaster or its consequences; capacity-building; preparedness to deal with a disaster; prompt responses to a disaster; assessing the severity or magnitude of a disaster; evacuation, rescue or relief; and rehabilitation and reconstruction.

Moreover, Section 6 and Section 10 of the Act, PM Modi, who is the chairperson of the authority, declared Covid-19 as a national disaster so that the entire country has uniform lockdown regulations, which are easier to implement, especially on which services and functions are allowed and what are not. Like, just before lockdown was imposed to whole India, the state specific lockdowns and a lockdown of 82 districts by the federal government — both under the epidemics law — were inconsistent about the use of private vehicles. Under the Disaster Management Act, states are required to implement the national plans.

CODE OF CRIMINAL PROCEDURE, 1973

It is one of the Prominent acts of which are currently prevailing in India. The code of criminal procedure is procedural in nature except for some sections which are substantial in nature. Section 144 of the code plays a vital role in order to tackle the issues where the administration has to prohibit the gathering of the people at one place. This act also helps in order to tackle the current ongoing pandemic. Section 144 of the code prohibits the assembly of four or more people in an area. The competent authority prohibits any presence or movement of one or more persons in public places or gathering of any sort anywhere, including religious places subject to certain conditions. All movement of one of more persons in the city is prohibited between 9 pm and 5 am at many places.

CONCLUSION

Whether the Coronavirus is a natural virus or it is a man-made virus was a controversial issue, which was a hot topic of discussion among prominent scientists around the globe. However, this controversy doesn’t matter at all, what matters is that this virus has not only disturbed the life of people but also have taken many lives around the globe. To tackle such a pandemic Indian government has restricted the movement of its citizens. At the beginning of this article, we have seen that the question before us was that, whether such restriction imposed was legitimate or do the government has any power to impose such restrictions.

In the light of the above discussion we have seen that there are certain laws including the Code of Criminal procedure, 1973, and some special acts like the Epidemic disease Act, and Disaster Management Act which authorizes the central and state government to impose some restrictions and take some special measures to tackle such natural or man-made disaster. We can defiantly conclude ourselves that the act of the government was the need of the hour and the action taken by the government was as per the laws which are currently prevailing in the nation. Thereby, the act of the lockdown was legitimate and no rights of the citizens have been violated. The action of the government was in the interest of the citizens as well as it was justified too.

The Epidemic Act is a 123-year-old law which was formulated pre-Independence mainly to control plague in the late 1800s. This act authorises the Central and state government to take special measures to control the epidemic. Section 2 of the Act reads as: Power to take special measures and prescribe regulations as to dangerous epidemic disease.—(1) When at any time the 2 [State Government] is satisfied that 2 [the State] or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the 3 [State Government], if 4 [it] thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as 4 [it] shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.

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Role of experts cannot be undermined in shaping the opinion of courts

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To start with, before I venture to elaborate exhaustively on the role played by experts in shaping the opinion of the Courts, it is imperative first and foremost to understand who really an expert is. In layman’s language, an expert can be inferred as “Someone (a person) who has special knowledge, skill or experience in any particular field like foreign law, science, art, handwriting or finger impression etc by virtue of having acquired it through years of unremitting focus, learning, practice, observation and proper studies which others don’t have and which is what distinguishes them from the rest.” This alone explains why the opinion of experts is so sought after and is valued immensely in shaping the opinion of not only people but also of the Courts and very rightly so!

Quite ostensibly, Section 45 of the Indian Evidence Act also discloses who all can be called experts. It says that, “When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts.” Section 45 itself proves beyond a straw of doubt that the court in all such cases when it has to pronounce judgment in a case where the opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions is required, it prefers to take the opinion of those persons who are specially skilled in it by virtue of which they are called experts and such opinion certainly constitute relevant facts. Also, here it must be borne in mind that the opinion of such experts which constitute relevant facts play a major role in shaping the opinion of the court and in arriving at a reasonable and right decision.

Be it noted, as per the Stroud’s Judicial Dictionary, “Expert witness is one who has made the subject upon which he picks a matter of particular studies, practicing or observation and he must have a particular and special knowledge of the subject.” According to Black’s Law Dictionary, an expert is defined as “A person who, through education or experience, has developed skill or knowledge in a particular subject, so that he or she may render their opinion that will assist the fact hindered.” Sukumar Ray in his book ‘Outlines of Indian Evidence Act’ on page 156 writes that, “An expert witness is one who has made the subject upon which he speaks a matter of particular study, practice or observation; and he must have a special knowledge of the subject.” It is also pointed out by Sukumar pertaining to the object of expert opinion that, “The purpose of expert opinion is two fold. Firstly, to obtain opinion as to the matter of skill or science which is in controversy and Secondly, to exclude the opinion as to the effect of the evidence in establishing controverted facts.”

What’s more, Phipson narrates the role and duty of an expert in his own words in his book on ‘Evidence’ in 14th edition on page 829. He writes that, “An expert is not a witness of fact. His evidence is of an advisory character. The duty of an expert witness is to furnish the judge with the necessary scientific criteria for testing the accuracy of the conclusion so as to enable the judge to form his independent judgement by the application of the criteria to the facts proved by the evidence.” No sane person will ever dare to disagree with what Phipson has said. The sole job of an expert is to furnish the judge with the opinion on any matter with the necessary scientific criteria and logical reasoning by virtue of which a judge can after taking into account the opinion so furnished arrive at a rational and independent decision without getting biased in any manner!

It is worth noting here that Lawson defines expert in his book on ‘Expert Testimony’ in 2nd edition on page 229 as: “An expert is a person who has special knowledge and skill in a particular calling to which the inquiry relates.” The basic parameter of deciding the competency of an expert as put by Lord Rusell in US Shipping Board v Ship “St Albans”, 1931 PC 189 is this: “Is he peritus Is he skilled? Has he adequate knowledge?” Let me tell my readers here that ‘peritus virtute official’ means the holder of some official position which requires and, therefore, presumes a knowledge of that law. Cross in his book on ‘Evidence’ on page 322 writes that, “The courts have been accustomed to act on the opinion of experts from early time.” Thus, the value of experts in enabling the court to determine the right conclusion in any given case especially where the case hinges on the expertise opinion cannot be overstated.

There can be no gainsaying that the Apex Court in Bal Krishna Das Agrawal v Radha Devi, AIR 1989 SC 1966 points out that an ‘expert’ was defined as “a person who by his training and experience has acquired the ability to express an opinion” but an ordinary witness does not possess this quality. In Ramesh Chandra Agrawal v Regency Hospital Ltd (2009) 9 SCC 709 , it was held by the Supreme Court that, “The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court’s knowledge. Thus cases where the science involved, is highly specialised and perhaps even esoteric, the central role of an expert cannot be disputed. The other requirements for the admissibility of expert evidence are :

1. that the expert must be within a recognised field of expertise;

2. that the evidence must be based on reliable principles, and

3. that the expert must be qualified in that discipline.”

It was also held in this very case that, “The opinion of an expert may not have any binding effect on the court. The court does not become functus officio because of an expert opinion. It is not the province of the expert to act as judge or jury.”

Needless to say, it is not always that the expert evidence is imperative. There have been many such instances where the expert evidence has been dispensed with as it was felt that the evidence of an ordinary witness is sufficient. As for instance, in Rajinder Bajaj v Indian Tanning Industries, AIR 2008 Delhi 62 (D.B.), where glaring discrepancies were visible even to the naked eye in the admitted signature and disputed signature, the Delhi High Court said that the reference to a handwriting expert in such a case was not necessary. Also, there are many such cases where the courts have held that absence of an expert report is not fatal to the prosecution case. As for instance, in Vineet Kumar Chauhan v State of UP, AIR 2008 SC 780, the Supreme Court has held that where fire-arms are used in a crime, the absence of the report of a ballistic report is not always fatal to the prosecution case.

Let me clarify here that experts evidence in no manner helps the court in interpretation of the law and is only an opinion evidence and it is entirely within the discretion of the court whether to accept it or not. In fact, in Forest Range Officer v P Mohammed Ali, AIR 1994 SC 120, it was held by the Supreme Court that, “Expert opinion is only opinion evidence and is not helpful to the Court in interpretation of the law.” Let me point out here that in another case – Fakhruddin v State of MP, AIR 1967 SC 1326, it was held by the Apex Court that, “Both under this Section and Section 47 the evidence is of an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case, the Court must satisfy itself by such means as are open that the opinion may be acted upon.”

Needless to state, it thus becomes ostensibly clear that the courts must not believe unflinchingly in experts evidence and before accepting it must satisfy itself completely about whether it is worth to be acted upon or not. The guiding principle for courts who have to deal with experts opinion have been aptly summed up by Supreme Court in Dayal Singh v State of Uttaranchal, AIR 2012 SC 3046 wherein it held that, “The expert is not only to provide reasons to support his opinion but the result should be directly demonstrable. The court is not to surrender its own judgment to that of the expert or delegate its authority to a third party, but should assess his evidence like any other evidence. The purpose of expert testimony is to provide the court with useful, relevant information. The purpose of an expert opinion is primarily to assist the court in arriving at a final conclusion. Such report is not binding upon the court. The court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not.” In Kanchan Singh v State of Gujarat, AIR 1979 SC 1011, it was held that credibility and competence of an expert are material questions. Where the High Court did not believe an expert the Supreme Court did not interfere.

Let me reveal here that the expert evidence which is rendered as opinion of the third person is admissible under Sections 45 to 51 of the Evidence Act. Under these provisions a third person even though he/she is unknown to the facts of a particular case is called upon by the court wherever and whenever it feels imperative to seek such opinion on a particular point on which the expert by virtue of expertise on that point is best suited to give an independent, unbiased and logical opinion by virtue of which the court can also rely on it and give a sound and logical judgment based on it. It is however solely the discretion of the court on whether to accept the opinion rendered by expert or reject it and the opinion rendered by expert is not binding on it.

Let me also reveal here that the expert opinion is a very weak type of evidence and is usually advisory in character. It also cannot be glossed over that the Courts generally refrain from passing an order of conviction solely on the basis of expert evidence because they are not conclusive and may be biased in favour of the party who calls him. As for instance, it was held in Gulzar Ali v State of Himachal Pradesh, (1998) 2 SCC 192 that, “It must be borne in mind that an expert witness , however impartial, he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him.” Moreover, let us not be oblivious of the palpable fact that a witness who is remunerated always has an unconscious bias in favour of the party who called him even though he may not be tutored. Also, it cannot be lost on us why Wellman had very candidly remarked that, “Expert witness become so warped in their judgement by regarding the subject in one point of view, that, even when conscientiously disposed, they are incapable of expressing candid opinion.”

It is worth paying attention here that Charles Hollander in his book on “Documentary Evidence” in 8th edition in para 21-23 has quoted the observation of Cresswell in the Ikarian Reefer’s Case (1993) 2 Lloyd’s Rep 68(81) to highlight what all precautions an expert witness should take so that it remains unblemished and appears reliable for courts to fall back upon while pronouncing judgment and these are as follows : –

1. “Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to the form or content by the exigencies of litigation.

2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise.

3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

5. If an expert’s opinion is not properly researched because he considered that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.

6. If after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.

7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports….”

Let me tell for my esteemed readers exclusive benefit that while it is true that in many cases the courts have refrained from convicting a person solely on the basis of expert evidence or opinion but what cannot be denied is that it has also accepted expert opinion many times. As for instance, in Murrarilal v State of MP, AIR 1980 SC 531, it was held by Apex Court that the opinion of finger print expert is of higher value in comparison to the opinion of handwriting expert because science of identification of finger print is so perfect and therefore the rise of an incorrect opinion is practically nonest. In Jaspal Singh v State of Punjab, AIR 1979 SC 1708, it was held by the Supreme Court that the science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. So, the opinion of an expert regarding identification of thumb impression is relevant within the meaning of Section 45 of the Indian Evidence Act. Also, in Kanbikarsar Yadab v State of Gujarat, AIR 1966 SC 821, it was held by the Supreme Court that opinion of hair expert is admissible in evidence because by the microscopic examination of the hair it is possible to say whether they are the same or of different colours or sizes and from the examination it may help in deciding where the hairs come from.

We must also bear in mind that there have been many such cases where when there is any inconsistency and the direct evidence is not satisfactory, the evidence has been corroborated by that of expert in a particular field. As for instance, in Gurucharan Singh v State of Punjab, AIR 1963 SC 340, it was held by the Supreme Court that where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or oral evidence can be corroborated by the evidence of a ballistic expert.

It is worth noting that there have been many cases where opinion of expert have been relied upon when corroborated by circumstantial or other evidence. As for instance, in Lall Chand v State of Punjab, 2010 CrLJ 699, it was held by the Supreme Court that opinion of a handwriting expert can be relied upon when due corroboration of such opinion through ocular and circumstantial evidence is provided. In yet another case – Shashi Kumar v Subodh Kumar, AIR 1964 SC 529, it was held by Apex Court that, “Expert opinion is opinion evidence and it cannot take the place of substantive evidence . It is a rule of procedure that expert evidence must be corroborated either by clear direct evidence or by circumstantial evidence.”

All said and done, it can be said with considerable certainty that the role of experts in shaping the opinion of the courts cannot be undermined as they form an inescapable opinion even though they cannot be always relied on unflinchingly and this is more true in case of handwriting experts which I have already discussed above in considerable detail. But at the same time we have also seen that on many occasions the courts have not refrained from basing their conviction on expert evidence as in the case of fingerprint expert. So it all varies from case to case but it must be underscored here that no court will ever take the risk of completely undermining the evidence of expert and whatever opinion is given by them in front of court is always taken with full seriousness and very rightly so!

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Legally Speaking

No ‘honour’ in killing the young & innocent: Fighting a long, arduous battle

‘Religion’ and ‘culture’ cannot and must not be used as excuses for murdering women, because religion and its rules are always a subjective interpretation. No ‘culture’ has the right, based on their sense of morality or integrity, to murder or mistreat women. Unfettered faith does not imply free killing and activist laws are thus the only remedy to such dishonest activities.

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The so-called ‘honour crimes’ are acts of violence, typically killings, perpetrated by members of the family against women who have brought the family into supposed ‘disgrace’. A woman may be targeted by (persons in her own family) for a number of reasons, including: refusal to enter an arranged marriage, being the victim of sexual assault, seeking divorce even from an abusive spouse or in cases of adultery. The mere notion that a woman has acted in a manner that “dissonates” her family is enough to assault her life. Our nation was extremely selective of the kind of development it underwent. At the world level with the nuclear agreement, 8% growth rates, and India’s acknowledgment of its position, it appears that ‘India shines.’ But delving deeper into this growing country’s dark secrets, we still discover widespread murder of young couples by their family members in order to preserve their ‘honor’ because of the couple’s differential social status.

The “traditional” khap panchayat claims that marriage between individuals of the same village is deemed incestuous since they are considered siblings, and thus these weddings are not ethical. The panchayat thus orders the assassination of the couple and hangs their bodies at the village crossing as an example to other prospective couples. Two adults are allowed to marry and, according to the Chief Justice of India Dipak Misra, speaking out against honor murders in India,

“No third person” may harass or injure them. Women are regarded as property and the vessel of family honor in India, with its patriarchal culture. And any conduct that may block the prestige of the family gives the male members an unequivocal right to kill the girl, ‘correct’ their mistakes and gain back the honor.

JUDICIAL PRECEDENT IN HOMICIDE, ‘HONOUR KILLING’

Honor killings, as defined by the Human Rights Watch, are “acts of violence, usually murder, perpetrated by male family members against female family members who are perceived to have brought dishonour to the family by being romantically involved with or choosing to marry men outside their caste, class, or religion.” Frequently camouflaged and reported as suicides by relatives, women account for over 97 percent of honour killing victims in India itself, because “the regime of honour is not able to forgive a woman on whom suspicion has fallen” and remove the stain on their honour by attacking the woman.” Often named as homicide, Honour killing is a heinous crime and a greater evil, homicides may affect public interest whereas the offence of Honour killing shakes public conscience. The lack of a specific law to deal with these particular crimes, in which ‘honour’ is the common motive, results in them being reported under myriad laws, making them nearly impossible to track. These crimes against honour being grossly violative of the constitution, attract the violation of various enactments like-

• The Indian Majority Act, 1875

• The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

• The Protection of Women from Domestic Violence Act, 2005

• The Indian Evidence Act, 1872

• The Special Marriage Act of 1954 and

• The Indian Penal Code, 1860

In spite of being violative of the law on so many levels, honor killings are notoriously underreported – not by the media, but by the State. The institutional reluctance to enact specific laws, fearing a sway on political outcomes, results in a convenient scapegoat and the resulting underestimation.

To discover a remedy for such atrocities, it must be investigated from the very heart. The fundamental foundation of such a marital taboo in the same “gotra” is that it’s considered incest. The 1954 Hindu Marriage Act prohibits the marriage of sapindas, individuals falling in the third generation of the mother and the fifth generation of the father. In addition, marriage between specific ‘degrees of forbidden connections,’ including between sisters and brothers, is also prohibited. The law thus sets out the components for a legal marriage and excludes marriage between close family members.

THE HONOUR AND TRADITION BILL: POSITION IN 21ST CENTURY

Although the state action against this crime has been active, most of the state reforms have died in latency. The Prevention of Crimes in the Name of Honour and Tradition Bill, 2010, was introduced in Parliament, however it never progressed from its embryonic stage. On August 2010, the Supreme Court imposed the capital punishment in the case of U.P. v. Krishna Master & Ors to three defendants in the event of the ‘honour’ killing of six people in a district of Uttar Pradesh in 1991. The Divisional bench of Justices, H.S. Bedi and J.M. Panchal overturned the judgement of acquittal issued by the High Court of Allahabad after which, death penalty was handed over to them by the court. The Bench upheld the decision of the trial court and stated that: “murdering six people and squandering nearly the whole family on the weak basis for preserving the family’s honour would be one of the most unusual instances” As a condemnation of the crime,in the case of Lata Singh Vs State of Uttar Pradesh and others, a single Judge bench of the Supreme Court headed by Justice Markandey Katju had said, ‘’Honour killings are nothing but barbaric cold blooded slaughter and no honour is involved in such killings.’’ Thus, the stance of the judiciary, executive and the legislature on such cases, analyzed with the help of judicial precedents and other codified laws, hold such practices unacceptable. Honor killings violate various provisions and there exist distinct legislation and punishments against this, however each of these sections offer certain exceptions, and aren’t cut out for adept dealing of these crimes. For example: the Indian Evidence Act puts the burden of proof on the victims, this makes most of the crimes go unreported, as the victims don’t live to testify. A suggestive reform would be to amend it to place the burden of proof on the accused, however amending each of the provisions to meet the demands of penalizing this crime would be a futile exercise. The IPC, offers an exception for homicides, triggered by sudden provocation and honor crimes, done by family members through brutal, clever planning mostly hidden behind this. Thus is the requirement for a distinct law so that no innocent voice is stifled in demand of justice.

THE INDIAN STANCE: STILL FOGGY?

The government steadily took steps to prohibit honour killing by the time various laws were modified. We end our piece by referring to the most distinguished example given by the then Chief Justice Dipak Misra, who made a substantial improvement in the case of Shakti Vahini against the Union of India in 2018, one of the most significant cases and judgement by declaring that “liberty, using the word in its practical connotation includes right to choose.” Feudal thought must dissolve into darkness and provide the pleasant path towards freedom. The right to freedom must be kept constantly and fiercely to blossom with power and splendor. Rajasthan Government has adopted strict measures and changes by adopting a new bill on the prohibition against interference in the freedom of matrimonial alliances in the name of honour and tradition in 2019. ‘Religion’ and ‘culture’ cannot and must not be used as excuses for murdering women, because religion and its rules are always a subjective interpretation. No ‘culture’ has the right, based on their sense of morality or integrity, to murder or mistreat women. Unfettered faith does not imply free killing and activist laws are thus the only remedy to such dishonest activities.

The remedy to this problem is largely to eradicate the myths in people’s thoughts. They need to be informed about the requirements of the Hindu Marriage Act and what types of weddings are truly invalid. Given the difference in the idea of Gotras and Sapindas, they should be clarified.

‘Honour killings’ violate various provisions and there exist distinct legislation and punishments against this, however each of these sections offers certain exceptions, and isn’t cut out for adept dealing of these crimes. For example, the Indian Evidence Act puts the burden of proof on the victims, this makes most of the crimes go unreported, as the victims don’t live to testify. A suggestive reform would be to amend it to place the burden of proof on the accused, however amending each of the provisions to meet the demands of penalising this crime would be a futile exercise.

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