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Revisiting the concept and constitutionality of plea bargaining

Section 320 of code provides for compounding of certain offences, as mentioned therein, on account of compromise between the parties and is somehow similar to the concept of plea bargaining except for the fact if a criminal case is quashed on account of settlement between the parties it results in acquittal of the accused unlike in plea bargaining where admission of guilt necessarily means conviction, thus lawyers generally refrain from resorting to plea bargaining and invoke the former for getting criminal cases quashed by the High Court under its inherent jurisdiction.

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Plea Bargaining is relatively a new and upcoming concept in India inserted in the Code of Criminal Procedure, 1972 (hereinafter, ‘Code’) by the Criminal Law Amendment Act, 2005 (hereinafter, ‘Act’). The Act has inserted Chapter XXIA in the Code ranging from Section 265A to 265L. Even before its addition in the Code, it has been a subject of intense debate and criticism surrounding its constitutionality due to its apparent conflict with some of the fundamental rights, international conventions on human rights and directive principles of state policy under the Indian Constitution.

GENSIS OF PLEA BARGAINING

It is basically a pre-trial negotiation wherein the accused pleads guilty to the commission of the crime in exchange of certain concession by the prosecution, it is based on the principle on nolo contendere (‘I do not wish to contend’) and its origin traces back to 18th Century and ever since then it has been integral part of the American criminal jurisprudence wherein it was introduced for achieving the avowed objective of amicable settlement criminal disputes between the state, accused and victim in least the possible timeframe. It seeks to create a win- win situation for all the stakeholders of the criminal system, for example, for the Court it would result in speedy disposal of the case and lessening of court’s docket, for the victim and accused it would mean early resolution of the dispute, saving of expenses on litigation cost and fair and just compensation to the victim as per the settlement agreement. The concept of Plea Bargaining is even today continues to be a very popular concept in America with more than 90% of the criminal cases being settled through it. In America, unlike India, there are three types of plea bargaining i.e. Fact Bargaining i.e. admission of a particular fact, Charge bargaining i.e. certain charges are dropped against the accused and Guilt Bargaining i.e. admission on the commission of the crime.

WHY THE CONSTITUTIONALITY OF PLEA BARGAINING IS DOUBTFUL

The constitutionality of the Plea bargaining was challenged in the US in ‘Robert Malvais Brady v. United States,(1970),397 U.S. 742, in the afore-said the case Robert Brady was indicted for kidnapping and had pleaded guilty to commission of the crime in order to save himself from a harsher penalty, however, post-conviction he filed an appeal therefrom before the American Supreme Court and argued that his plea for commission of the crime was involuntary and cohered. However, the Hon’ble Supreme Court did not agree with his contention and were of the opinion that such argument was clearly an afterthought and he had pleaded voluntarily and knowingly of the commission of the crime and there was no reason to doubt the admissibility of his guilt, opining therein that ‘…The issue we deal with is inherent in the criminal law and its administration because guilty pleas are not constitutionally forbidden, because the criminal law characteristically extends to judge or jury a range of choice in setting the sentence in individual cases, and because both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorized by law..’.

Close on the heels of this case, the hon’ble American Supreme Court in another landmark case by the name ‘Santobello v. New York (1971), 404 U.S. 257 (1971), had another opportunity to revisit the concept of plea bargaining and the ancillary question as to the effect of breach of the settlement agreement arrived between the parties, in the afore-said case due to change in the original prosecutor before whom the plea was recorded, the subsequent prosecutor refused to adhere to the settlement agreement as he was view that the sentence imposed on Santobello was very lenient, thus the question arose before the US Supreme Court as if the settlement agreement could be withdrawn and what could be the consequence thereof. After extensively hearing the arguments, the Chief Justice Warren E. Burger, writing for the bench, with a 4-3 majority, answered that the agreement executed between the parties must be respected and observed that ‘..This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled….’, however based upon the peculiar facts of the case, the Hon’ble Court remanded back the matter to the lower court for considering the appropriate relief for Santobello.

Likewise, in India also even before the concept of plea bargaining was introduced in the Code, there was a unanimous opinion among the Indian judiciary that the concept of plea bargaining has no place in the Indian legal system, right from the Madan Lal Ram Chandra Daga V. State Of Maharashtra, 1968 SCR (3) 34, to State Of Uttar Pradesh V. Chandrika, 1999 Supp (4) SCR 239. The Hon’ble Supreme Court and different High Courts have time and again deprecated the practice of plea bargaining.

In Madan Lal Ram Chandra Daga’s (supra) case, the hon’ble Apex Court observed that ‘In our opinion, it is very wrong for a court to enter into a bargain of this character Offences should be tried and punished according to the guilt of the accused. If the Court thinks that leniency can be shown on the facts of the case it may impose a lighter sentence. But the court should never be a party to a bargain by which money is recovered for the complainant through their agency…’, in another case by the name Murlidhar Meghraj Loya V. State Of Maharashtra, [1976] 3 SCC 684 , the hon’ble Apex Court, while referring to concept of plea bargaining as it existed in American then, observed that ‘The possibility of long argument in a case where the accused has pleaded guilty arises because the provision lends itself to adroit exercises. The court has to look at the interpretative problem in the social setting of the statute, visualising the rough and tumble of the market place, the finesse with which clever victuallers fob off adulterated edibles and gullible buyers goofily fall victim. Viewed this way, chasing recondite semantics or niceties of classification or chopping of logic has no scope for play.’

Likewise, in Thippaswamy V. State Of Karnataka, [1983] I SCC 194, the hon’ble Supreme Court observed that ‘It is obvious that by reason of plea-bargaining the appellant pleaded guilty and did not avail of the opportunity to defend himself against the charge, which is a course he would certainly not have followed if he had known that he would not be let off with a mere sentence of fine but would be sentenced to imprisonment. It would be clearly violative of Article 21 of the Constitution to induce or lead an accused to plead guilty under a promise or assurance that he would be let off lightly…’. The hon’ble Apex Court in State Of Uttar Pradesh V. Chandrika, 1999 Supp (4) SCR 239 , after referring to the decisions in Madanlal Ramchandra Daga V. State of Maharashtra,[1968] 3 SCR 34,  Murlidhar Meghraj Loya v. State of Maharashtra (supra), Ganeshmal Jashraj v. Govt. of Gujarat,[1980] 1 SCC 363, and Thippaswamy (supra), ruled thus: ‘It is settled law that on the basis of plea bargaining the court cannot dispose of the criminal cases. The Court has to decide it on merits. If the accused confesses his guilt, an appropriate sentence is required to be imposed. Further, the approach of the court in appeal or revisions should be to find out whether the accused is guilty or not on the basis of the evidence on record. If he is guilty, an appropriate sentence is required to be imposed or maintained. If the appellant or his counsel submits that he is not challenging the order of conviction, as there is sufficient evidence to connect the accused with the crime, then also the court’s conscience must be satisfied before passing the final order that the said concession is based on the evidence on record. In such cases, sentence commensurating with the crime committed by the accused is required to be imposed. Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the court that as he is pleading guilty the sentence be reduced.’

CRIMINAL LAW AMENDMENT ACT, 2005

Notwithstanding the consistent judicial stand taken the Indian judiciary, the concept of Plea bargaining was introduced in the Code by the Criminal Law Amendment Act, 2005 w.e.f 5th July, 2006, consisting of 12 sections. Succinctly stated, the aforesaid sections provides that a criminal court in a case instituted in police report or private complaint at the stage after the chargesheet has been forwarded to it under section 173 or upon the cognizance being taken, can on application of the accused permit plea bargaining for offences which have maximum imprisonment is less than 7 years and are not offences against women, child or affects the socio-economic condition of the country. All the stakeholders of the criminal justice system i.e. the state, victim and accused mutually settle written satisfactory disposition to be submitted before the Court wherein the accused admits for the commission of the crime for a lesser punishment and the victim gets the compensation as per the terms of the settlement, this procedure of settlement/compromise between the parties is somehow similar to process of mediation in civil cases (See Order 23 of CPC). Based upon the afore-said settlement, the court convicts the accused and pronounces the judgement.

The concept of plea bargaining owes to origin to recommendations made by the Law Commission of India in its 47th report (on the trial and punishment of social and economic offences), 142nd report (on concessional treatment for offenders who on their own initiative choice to plead guilty without any bargaining), 154th Report (Code of Criminal Procedure, 1973) and the 221th report (need for speedy trial) and the Draft National Policy on Criminal Justice Report (report by a committee appointed by Ministry of Home Affair, GOI).

Although the afore-stated reports have considered the judicial precedents laid down by our courts but have nevertheless in the teeth of these judicial precedents recommended for statutory recognition for plea bargaining apparently on the ground that it would help unclog the court’s overflowing docket, facilitate the fundamental right to speedy trial (Read Hussainara Khatoon V. Home Secretary, 1980 1 SCC 81; Champa Lal V. State of Maharahstra, AIR 1981 SC 632) and would result in saving expenditure on unnecessary litigation cost and to avoid lengthy and complicated long drawn criminal trial and related appeal/revisions etc.

However, the concept of plea bargaining although seems lucrative at the first blush but its constitutionality remains to be doubtful for the reasons as stated hereinabove also due to its apparent invasion/conflict with some of the most fundamental principles of criminal jurisprudence such as right to fair trial (Read Article 6 of the European Convention on Human Rights), presumption of accused being innocent unless proven beyond reasonable doubt (Read Article 11 of Universal Declaration of Human Rights), right to effective legal representation throughout the case (See Madhav Hayawadanrao Hoskot V. State Of Maharashtra, 1979 SCR (1) 192), right against self-incrimination (See M. P. Sharma V. Satish Chandra, District Magistrate, Delhi, 1954 SCR 1077, also read Article 20(2) of the Constitution of India, 1950), burden of proof always being on the prosecution to establish the guilt of the accused (See Moti Lal Saraf V. Union of India, 2007 (1) SCC Cri,180 where the Hon’ble Apex Court held that right to fair trial flows from Article 21 of the Indian Constitution.) etc. Further, in cases where one of the parties to the lis is in dominant or economically well-off position i.e. in an unfair bargaining power, then the dominant party might intimidate and coercive the weaker party to get matter settled and get way by paying less compensation to the victim then what ought to be given. Moreover, most of the afore-stated legal rights have been recognized as a fundamental right under Article 14, 20, 21 of the Indian Constitution. Further, even if for the sake of it, it is accepted that the pros of plea bargaining outweigh its cons, it cannot be lost sight of the fact that fundamental rights are human rights and they are by itself intrinsic to every human being and are considered to be sacrosanct, inalienable and non-waiverable as opined by a hon’ble Apex Court in Basheshar Nath V. Commissioner of Income-Tax, Delhi,1959 SCR Supl.(1) 528, thus any law which contravenes fundamental rights are liable to be struck down by our constitutional court under article 32/226 of the Indian Constitution. Another grey area is the lack of standard guidelines/format for settlement agreements, what would be consequences for breach thereof, lack of proper awareness and publicity of plea bargaining, no standard policy on conviction and/or sentence etc. Further, unlike America comparatively a large proportion of India’s population are socially, economically and/or educationally backward thus for protection of their rights judicial interference would be necessary and settlement may not be fruitful.

OTHER RELATED CONCEPTS IN THE CODE

Section 320 of code provides for compounding of certain offences, as mentioned therein, on account of compromise between the parties and is somehow similar to the concept of plea bargaining except for the fact if a criminal case is quashed on account of settlement between the parties it results in acquittal of the accused unlike in plea bargaining where admission of guilt necessarily means conviction, thus lawyers generally refrain from resorting to plea bargaining and invoke the former for getting criminal cases quashed by the High Court under its inherent jurisdiction. Moreover, in recent times, the scope of section 320 has been widened and now even non-compoundable offences (See State of Madhya Pradesh V. Lakshmi Narayan, 2019 (5) SCC 688.) could be quashed by resorting to afore-said section. This has further led to the concept of plea bargaining being rendered otiose and redundant.

Likewise, in so far sentencing of the accused post-conviction is concerned, if the accused resorts to plea bargaining then in such a case his sentencing shall be governed under section 265E of the Code, whereunder the Court has been empowered to punish the accused for half of the such minimum punishment under the law accused is charged or 1/4th of the punishment in case no minimum punishment is provided by law, whereas in a normal full-fledged criminal trial there are several judgements which discuss the mitigating factors which have to be considered while imposing punishment on the accused (See Jagmohan V. State of Uttar Pradesh, (1973) 1 SCC 20; Modi Ram v. State of M.P, (1972) 2 SCC 630), post his conviction, so even from this angle plea bargaining doesn’t offer any new perspective in criminal jurisprudence.

Apart from the afore-stated provisions, under Section 229 (Session Trial), Section 241 (trial of warrant case by magistrate), Section 252 (trial of summons case by magistrate) and also under Section 164 R/w Section 281 (Judicial Confession) of the Code, the Court has been empowered to record the plea of guilt by an accused, however, before plea is record, the Court has to be convinced as to the veracity and voluntariness of the such a plea by an accused, see for example State Of Maharashtra V. Sukhdeo Singh, 1992 SCR (3) 480, wherein the Hon’ble Supreme Court opined that ‘…It is, therefore, essential that before accepting and acting on the plea the Judge must feel satisfied that the accused admits facts or ingredients constituting the offence. The plea of the accused must, therefore, be clean, unambiguous and unqualified and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting and acting on the plea of guilt…’.

Differentiating between these two concepts that i.e. plea of guilt and plea bargaining, the hon’ble Gujarat High Court in State Of Gujarat V. Natwar Harchandji Thakor, (2005) 1 GLR 709, opined that ‘…Let it be reiterated that at present, there cannot be any question that “plea bargaining” is not recognised, so far and is not permissible. Whether “plea of guilty” is “plea bargaining” or not, will be a matter of fact to be examined in each case, from the factual matrix of the case and totality of the context and entire profile. It cannot be contended that every “plea of guilty” is always plea bargaining in case of each case and each accused. It cannot be also assumed without supporting facts and attending circumstances. It is a matter of proof and if on objective and independent evaluation of facts, it is found to the satisfaction of the Court, then it cannot be allowed and sustained, being not legal and permissible; in those cases based on facts and proof thereof. Thus, it is a matter of proof and evaluation of evidence in each case…’, the hon’ble Court further went to opine that ‘…However, keeping in mind the huge arrears and long time spent in trials and resultant hardships to parties, and particularly, the accused and the victims of the crimes, the benefit of “plea bargaining” as an alternative method to deal with the dispute or question of offence requires serious consideration, which would not be admissible and available to the habitual offenders….

Thus in view of the afore-said, it is highly doubtful if the constitutionality of plea bargaining would withstand judicial scrunity particularly in light of unannimous view of the Indian judiciary against its applicability in indian sub-context.

Apart from the afore-stated provisions, under Section 229 (Session Trial), Section 241 (trial of warrant case by magistrate), Section 252 (trial of summons case by magistrate) and also under Section 164 R/w Section 281 (Judicial Confession) of the Code, the Court has been empowered to record the plea of guilt by an accused, however, before plea is record, the Court has to be convinced as to the veracity and voluntariness of the such a plea by an accused.

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Legally Speaking

Cinematograph Amendment Bill 2021: An analysis

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Cinematograph Act 1952 establishes Central Board of Film Certification (CBFC), commonly known as the Censor Board. The Board is responsible for issuing certificates to films and has the power to deny their certificate (Section 5A). Section 6(1) of the Act empowered the Central Government to re-examine and cancel the certificate issued by CBFC. Supreme Court in the case of K.M. Shankarappa diluted the provisions of Section 6. The court held that the provisions of Section 6 are restrictive of Article 19(1)(a) of the Constitution.

The new Cinematograph (Amendment) Bill, 2021 attempts to dilute the judgment of the Supreme Court and aims to get back its revisionary powers. This will provide extraordinary powers to the Central Government by creating one more level of Censorship. This year Central Government passed an ordinance, the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 which abolished the Film Certification Appellate Tribunal (FCAT). The proposed bill also aims to convert this ordinance into regular law by placing it in legislation. FCAT was solemnly established to resolve the issues related to the certification of Films. With its abolishment, the filmmakers have to approach High Court in case the Censors Board denies providing certification or provides with some ratification. This will also increase the burden of High Courts. Ultimately, this leading to a delay in a Film release.

Article 19(1)(a) of the constitution says, “All Citizens shall have Right to freedom of Speech and Expression.” Article 19(2) of the Constitution empowers the State to restrict Freedom of Speech and Expression provided that the restrictions are legitimate. Supreme Court in K.M. Shankarappa v. Union of India held, “words contained in the main portion of Sub-section (1) of Section 6 of the Act and in the first proviso thereto are opposed to the basic structures of the Constitution and as such the words “or has been decided by” and “or as the case may be decided by the Tribunal” contained in the main portion of Sub-section (1) of Section 6 and the words “or to whom a certificate has been granted as the case may be” as contained in the first proviso to Section 6(1) of the Act, are unconstitutional as the same are violative of the basic structures of the Constitution.”Supreme Court in many of its Judgments has discussed the importance of Movies as a medium of Freedom of Speech and Expression. Supreme Court in the Rangarajan case regarded Movies as an effective medium to raise any general concern.The proposed amendment is an attempt to overutilize the powers provided under Article 19(2) of the Constitution.

If the bill becomes an act then it will nullify the Supreme Court Judgment. The autonomy of the Censor Board will be deduced. The Central Government will have the power to strike down any certificate issued by CBFC. This also induces the concept of dual Censorship, limiting the Freedom of Speech and Expression. Justice Mudholkar in Sakal v. Union of India rightly said, “The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved.” The abolishment of FCAT will further increase the backlog of High Courts and will lead to an unnecessary delay in the release of Films.

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Andhra Pradesh High Court issues guidelines for prompt transmission of bail orders

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Andhra Pradesh High Court

While granting bail to an accused under The Narcotic Drugs and Psychotropic Substances Act, 1985, the Andhra Pradesh High Court in a cogent, composed, commendable and convincing judgment in Criminal Petition No. 3933 of 2021 delivered on July 22, 2021 has taken a very serious note of the significant delay in issuing the certified copies of the orders. A Single Judge Bench comprising of Justice Lalitha Kanneganti of Andhra Pradesh High Court minced just no words to make it pretty clear that, “Disposal of bail application without furnishing the order copy within a reasonable time will not place the accused in a better position.” Justice Lalitha also observed that despite the conscious recognition of several pending cases, it is difficult to issue the order copies within a short period due to staff shortage. She has rightly diagnosed the root problem which must be addressed now without any further delay!

Needless to say, we all saw how just recently the Chief Justice of India NV Ramana too did not lag behind in a notable case titled IN RE: DELAY IN RELEASE OF CONVICTS AFTER GRANT OF BAIL in Suo Motu Writ Petition (Civil) No. 4/2021 while taking took serious note of this major shortcoming or lacuna. CJI led Bench of Apex Court comprising also of Justice L Nageswara Rao and Justice AS Bopanna had expressed the Court’s willingness to evolve a system to electronically transmit bail orders directly to prisons so that prison authorities will not delay the release of prisoners awaiting a certified copy of the order. Accordingly, a scheme called “FASTER” which implies “Fast and Secure Transmission of Electronic Record” is being considered which will be used to communicate all orders to concerned jail authorities without waiting. This will certainly benefit the under-trial prisoners/accused and so has to be lauded in no uncertain terms!

To start with, the ball is set rolling in para 1 of this latest, learned, laudable and landmark judgment authored by a Single Judge Bench of Andhra Pradesh High Court comprising of Justice Lalitha Kanneganti wherein it is put forth that, “This petition is filed under Sections 437 and 439 of Code of the Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking regular bail to the petitioner/ A-2 in connection with Crime No.38 of 2020 of Mothugudem Police Station, East Godavari District for the offence punishable under Section 20(b)(ii)(C) r/w Section 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity “NDPS Act”).”

While elaborating on the prosecution version, the Bench then lays bare in para 2 that, “The case of prosecution is that on 03.09.2020 on credible information about illegal transportation of ganja, the respondent Police rushed to Daralamma Temple, outskirts of Polluru village of Chinturu Mandal and while conducting vehicle check at about 11.00 AM, they found a Bolero pick-up van bearing registration No.AP 24 TB 1550 coming from Donkarai proceeding towards Lakkavaram Junction. On seeing the police, the inmates of the said Bolero van tried to escape from the spot, but the police apprehended them and on search, they found 300 KGs of ganja. The police seized the contraband, registered the crime, arrested the petitioner and remanded him to judicial custody on the same day.”

As we see, the Bench then mentions in para 3 that, “Heard Sri G.Venkata Reddy, learned counsel for the petitioner and the learned Public Prosecutor for the respondent-State.”

While on the one hand, the Bench enunciates in para 4 that, “Learned counsel for the petitioner/A-2 submits that the petitioner has nothing to do with the alleged offence and in fact, the petitioner was engaged by A-1 on payment of Rs.15,000/- who accompanied him. Further the officer who acted as a gazetted officer while conducting the search and seizure is a veterinary doctor and the said doctor is not a competent person to act as a gazetted officer under Sections 42, 43 and 50 of the NDPS Act. Learned counsel for the petitioner further submits that the entire investigation is completed and the petitioner is languishing in jail from 03.09.2020.”

As against what is stated above, the Bench then points out in para 5 that, “On the other hand, the learned Additional Public Prosecutor submits that on 13.10.2020 charge sheet was filed.”

To put things in perspective, the Bench then while taking a holistic view holds in para 6 that, “Taking into consideration the fact that the entire investigation is completed and charge sheet is filed and further the petitioner is languishing in jail from 03.09.2020, this Court deems it appropriate to grant bail to the petitioner. However, on certain conditions.”

Adding more to it, the Bench then further holds in para 7 that, “Accordingly, the petitioner/ A-2 shall be enlarged on bail on execution of self bond for Rs.2,00,000/- (Rupees two lakhs only) with two sureties for a like sum each to the satisfaction of the Court of the Additional Judicial First Class Magistrate, Rampachodavaram. On such release, the petitioner shall appear before the Station House Officer, Mothugudem Police Station, East Godavari District, once in a month till completion of trial.”

Be it noted, the Bench then envisages in para 8 that, “This Court having criminal roster from the last couple of months has noticed that in spite of best efforts by the Registry, there is significant delay in issuing the certified copies of the orders. This Court is conscious of the large number of cases pending before the Court, due to dearth of staff, it is difficult to issue the order copies within a short span of time. In cases, where the accused are entitled for statutory bail as they are languishing in jail for more than 60, 90 and 180 days, when default bail is granted, it was brought to the notice of the Court that there was considerable delay in dispatching the copy of orders. Hence, this Court feels that an alternative mechanism shall be evolved to address the plight of these undertrial prisoners/accused. Recently, the Hon’ble Apex Court has also taken a serious note of this issue.”

More significantly, the Bench then underscores in para 9 that, “Protection of personal liberty of an individual is undeniably a constitutional duty of this Court. Our criminal justice system always gives paramount consideration to the protection of the rights of the accused. Article 21 of the Constitution of India mandates that the personal liberty of an accused can be curtailed only after strict compliance with the procedure established by law. Sections 438 and 439 of Cr.P.C. ensures that the accused is not deprived of his personal liberty arbitrarily. The Hon’ble Apex Court in catena of cases has held that speedy adjudication process is one of the main facets that constitute the essence of access to justice and without it, access to justice as a constitutional value will be a mere illusion. Denial of this right undermines public confidence in the justice delivery system. It is also settled law that the right of an accused to have his bail application heard by the Court within a reasonable time has been entrenched as a constitutional liberty. At the same time, disposal of bail application without furnishing the order copy within a reasonable time will not place the accused in a better position. Mere emphasizing that an accused has an indefeasible fundamental right to bail itself is not sufficient without furnishing the copy of the order.”

Most significantly, what forms the cornerstone of this notable judgment is then elaborated upon in para 10 wherein it is held that, “This is high time the Courts shall address these issues with a progressive approach by adopting the innovative methods. Recently Andhra Pradesh High Court implemented a procedure whereby the concerned Court Masters are uploading the daily proceedings / orders / judgments on the same day. This Court deems it appropriate to issue the following guidelines.

(a) Parties/Advocates shall download the order copy from the High Court’s Website along with case details which are available in the case status information.

(b) While filing the memo on behalf of accused for furnishing sureties, the Advocate shall State in the memo that he/she has downloaded the order copy from the High Court’s Website. The concerned Administrative Officer / Chief Ministerial Officer of the Court shall verify the order from the High Court’s Website and make an endorsement to that effect and then shall place the same before the Court.

(c) The Public Prosecutor shall also obtain necessary instructions in this regard and assist the Court.

(d) The Presiding Officer on the same day shall dispose of the same and dispatch the release order to the concerned jail authorities forthwith through email or any other electronic mode.

(e) In cases of anticipatory bail, the burden to verify the authenticity of the copy is on the concerned Station House Officer and if necessary, he should obtain necessary instructions from the Public Prosecutor’s Office and complete the process on the same day expeditiously as per law.

(f) Registrar (Judicial) shall communicate copy of this order to (1) The Principal Secretary for Home Affairs, Andhra Pradesh; (2) The Director General of Police, Andhra Pradesh; (3) The Director of Prosecution, who in turn shall sensitize the Police Officers / Station House Officers / Public Prosecutors and ensure implementation of this order.

(g) Registrar (Judicial) shall communicate copy of this order to all the Principal District Judges in the State, who in turn shall sensitize all the Presiding Officers and ensure implementation of this order.

(h) Registrar (Judicial) is further directed to circulate the copy of this order to all the Bar Associations in the State through the Principal District Judges, so that they can effectively address their clients’ cause.

(i) Registrar (Judicial) shall also issue a separate notification in this regard and the same shall be displayed in the High Court’s Website.”

It is worth noting that the Bench then makes it clear in para 11 that, “This order shall come into force from 26.07.2021.”

Furthermore, the Bench then also directs in para 12 that, “The Judicial Officers in the State shall bring to the notice of the Registrar (Judicial), the issues / hitches, if any, in implementing the directions of this Court. In case of anticipatory bails, the Police Officials shall bring to the notice of the Public Prosecutor, High Court about their difficulties in implementing the orders of this Court and the Registrar (Judicial) and learned Public Prosecutor shall place the same before this Court by the next date of hearing i.e. 31.08.2021.”

For the sake of clarity, the Bench then sought to make it clear in para 13 that, “These directions will be in force until further orders or suitable Rules are framed in this regard.

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It is needless to mention, if any clarification or modification is required for effective implementation, they will be examined accordingly on the next date of hearing.”

While adding a word of advice, the Bench then stipulates in para 14 that, “In spite of all odds, determined efforts are required for achieving the goal. Ways and means have to be found out by constant thinking and monitoring. It is the responsibility of all the stakeholders to uphold the public confidence in the justice delivery system by giving timely justice which includes furnishing the copies of orders/judgments.”

Finally, the Bench then holds in para 15 that, “Post on 31.08.2021.”

In summary, para 10 which forms the bedrock of this noteworthy judgment dwells on the guidelines that the Andhra Pradesh High Court have issued to implement a procedure whereby the concerned Court Masters are uploading the daily proceedings / orders / judgments on the same day. This is necessary also so that the undertrial prisoners/accused don’t keep languishing in jails even after they have been granted bail as we keep seeing also due to lack of implementation of such procedures as the Andhra Pradesh High Court has elaborated upon in this case. Even Supreme Court three Judge Bench led by CJI NV Ramana has expressed its concern on prisoners languishing in jail even after they have been given bail and so this need to be implemented at the earliest!

It brooks no more delay anymore! This is exactly the crux of this notable judgment also by a Single Judge Bench of the Andhra Pradesh High Court comprising of Justice Lalitha Kanneganti. Copies of orders/judgments also must be furnished in time so that the faith of the people in the justice delivery system does not crumble!

Sanjeev Sirohi, Advocate

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Legally Speaking

Advocates have right to practice before maintenance tribunals: Delhi High Court

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

In a major relief for lawyers all across the country, the Delhi High Court has just recently on April 16, 2021 in a courageous, cogent, convincing, commendable and composed judgment titled Tarun Saxena vs Union of India & Ors in W.P.(C) 4725/2021 & CM APPLs. 14574-75/2021 has declared as ultra vires Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 which bars lawyers from representing parties in matters before the Maintenance Tribunals. It must be apprised here that this commendable judgment is in line with the judgment that was notably delivered by a

Division Bench of the Kerala High Court in March 2021 stating clearly

that the provision is ultra vires of Section 30 of the Advocates Act, 1961.

In hindsight, it may be recalled that in a groundbreaking judgment which is also a grand victory for advocates,

the Kerala High Court had just recently on March 30, 2021 in a latest, learned, laudable and landmark judgment titled Adv KG Suresh vs The Union of India and 3 others in WP(C)No. 21946 of 2011(S) has declared as unconstitutional the bar on lawyers representing parties in matters before the Maintenance Tribunals constituted under the Maintenance Welfare of Parents and Senior Citizens Act, 2007 (Maintenance Act). It

also rightly held that, “Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961.” A two Judge Bench of Kerala High Court comprising of Chief Justice S Manikumar and Justice Shaji P Chaly pronounced this pathbreaking judgment thereby allowing a writ petition filed in 2011. This latest, learned, laudable and landmark judgment by the Delhi High Court further endorses this notable judgment of the Kerala High Court. While relying considerably on the aforesaid superb decision of the Kerala High Court, Justice Pratibha M Singh too while endorsing it lock, stock and barrel observed most convincingly that, “Since Section 17 has been declared ultra vires Section 30 of the Advocates Act, 1961, it would obviously mean that an advocate would have the right to represent parties before the Tribunal under the Act. Ordered accordingly.”

To start with, a Single Judge Bench of the Delhi High Court comprising of Justice Pratibha M Singh who has authored this oral judgment and the hearing has been done through video conferencing as pointed in para 1, then while stating the purpose of the petition puts forth in para 2 that, “The present petition has been filed challenging order dated 26th March, 2021 passed by the ADM, Karkardooma Courts under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter, ‘Act’).”

While dwelling on the grievance of the petitioner, the Bench then observes in para 3 that, “The grievance of the Petitioner in this case is two-fold:- (i) that advocates are not being permitted to appear before the Tribunal; and (ii) that evidence is not being permitted to be led before the Tribunal.”

As we see, the Bench then brings out in para 4 that, “Insofar as the first issue is concerned, ld.

Counsel for the Petitioner relies upon the judgment of the Kerala High Court in Adv. K.G. Suresh v. Union of India & Ors. [W.P.(C) No. 21946/2011, decided on 30th March, 2021]. He submits that Section 17 of the Act has been declared to be ultra vires Section 30 of the Advocates Act, 1961.”

Furthermore, the Bench then observes in para 5 that, “Insofar as the second issue is concerned, the submission of ld.

Counsel for the Petitioner is that under Section 8(3) of the Act, the Tribunal has to permit the leading of evidence in support of the parties’ case and a direction in this regard may be passed.”

On the other hand, the Bench then points out in para 6 that, “Mr. Singh, ld. Counsel appearing for the Union of India, submits that under Section 8, the Tribunal follows summary procedure. Discretion is left to the Tribunal to follow the procedure in accordance with law considering the facts and circumstances of each case.”

Going ahead, the Bench then discloses in para 7 that, “Mr. Shukla, ld. Counsel points out that the order under challenge, i.e., order dated 26th March, 2021, wherein the ADM has merely directed the filing of the applications by the parties, was listed today at 02:00 pm.”

Quite aptly, the Bench then enunciates in para 8 that, “Firstly, this Court has perused the judgment of the Kerala High Court. The operative portion of the said

judgment reads as under:-

“57. As Section 30 of the Advocates Act, 1961 has been brought into force from 15.06.2011, Advocates enrolled under the said Act have been conferred with an absolute right thereof, to practice before all the Courts and Tribunals. By virtue of Section 30 of the Advocates Act, 1961, coming into force, from 15.06.2011, the restriction imposed is taken away and in such circumstances, Article 19 of the Constitution of India, which guarantees the freedom to practice any profession, enables the Advocates to appear before all the Courts and the Tribunals, subject to Section 34 of the Advocates Act, 1961.

In the light of the above discussion and decisions, Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is declared as ultra vires of Section 30 of the Advocates Act, 1961 and thus, the petitioner is entitled for a declaration that he has a right to represent the parties before the

Tribunal/ Appellate Tribunal/Court, constituted under Act 56 of 2007.

Accordingly, this writ petition is allowed.””

As a corollary, the Bench then envisages in para 9 that,

“In view of the above, since Section 17 has been declared ultra vires Section 30 of the Advocates Act, 1961, it would obviously mean that an advocate would have the right to represent parties before the Tribunal under the Act. Ordered accordingly.”

Be it noted, the Bench then enunciates in para 10 that, “Insofar as the second issue is concerned, Section 8 of the Act reads as under:-

“8. Summary procedure in case of inquiry

1. In holding any inquiry under section 5, the Tribunal may, subject to any rules that may be prescribed by the State Government in this behalf, follow such summary procedure as it deems fit.

2. The Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

3. Subject to any rule that may be made in this behalf, the Tribunal may, for the purpose of adjudicating and deciding upon any claim for maintenance, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the

inquiry.”” Of course, the Bench then hastens to add in para 11 that, “A perusal of the above provision shows that firstly, the procedure contemplated under Section 8 is a summary procedure. Secondly, it is an ‘Inquiry’ and not an adjudication which is usually done by the Courts. An ‘Inquiry’ is to be held under Section 5 to determine the amount payable.”

It is worth noting that the Bench then mandates in para 12 that, “Under The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules (Amendment) Rules, 2016, the steps to be taken as part of the Inquiry, include:

• Verification of the title of the property and the facts of the case as stated in the application by the concerned SDM, within 15 days from the receipt of the application.

• Submission of the report by the SDM to the Deputy Commissioner/DM for final orders, within 21 days from the receipt of the application/complaint.

• If, on receipt of the report, the Deputy Commissioner/DM is of the opinion that any child/legal heir of a senior citizen/parents is not maintaining the senior citizen/parents or is ill-treating him/her while continuing to occupy the premises of the senior citizen, show cause notice is to be issued by the DM as to why the child/legal heir should not be evicted.

• In the show cause notice, the ground on which eviction is proposed to be made should be specified so that the child/legal heir can respond appropriately.

• The show cause notice would call upon all persons who are either occupying the premises or claim interest in the premises, to provide reasons as to why they should not be evicted. Such a show cause would give at least 10 days’ time to the recipient of the notice to respond.

• As per Rule 22 (3)(2), the Deputy Commissioner/DM would consider the case put up by the noticees, including any evidence which may be produced, and after giving a hearing, pass a reasoned order on eviction.

Please read concluding on thedailyguardian.com

• Insofar as the nature of evidence is concerned, the Act or The Delhi

Maintenance and Welfare of Parents and Senior Citizens Rules

(Amendment) Rules, 2016, do not specify as to whether the evidence

should be oral/documentary.

The statutory scheme, as set out above, itself shows that the process

is time sensitive and is summary in nature.”

To put things in perspective, the

Bench then while citing the relevant case law observes in para 13

that, “The constitutional validity of Rule 22(3) and 22(4) of The

Delhi Maintenance and Welfare of Parents and Senior Citizens Rules

(Amendment) Rules, 2016, has been upheld by a Division Bench of this

Court in Aarshya Gulati (Through: next friend Mrs. Divya Gulati) &

Ors. v. GNCTD & Ors. [W.P.(C) 347/1028, decided on 30th May, 2019],

wherein the Court has observed as under:

“60. Now the question is whether the State Government could have

formulated a summary procedure for eviction. We must bear in mind the

objective for which the Parliament has enacted the Act, that is

because of withering of the joint family system, a large number of

elderly are not being looked after by their family. Consequently, many

older persons, particularly widowed women are forced to spend their

twilight years all alone and are exposed to emotional neglect and to

lack of physical and financial support which clearly reveals that

ageing has become a major social challenge and there is a need to give

more attention to the care and protection of the older persons. Though

the parents can claim maintenance under the Code of Criminal

Procedure, 1973, the procedure is both time consuming as well as

expensive. Hence, a need was felt to have simple, inexpensive and

speedy mechanism for parents / senior citizens to claim maintenance.

The Act also provide for protection of the life and property of the

senior citizens / parents. The “protection of property” must be

understood to mean where a senior citizen retains the property in his

name and possession for his welfare and well being.

61. So, the objective of the Act being, to provide inexpensive and

speedy procedure for the protection of life and property of the senior

citizens from the children / legal heirs, who are expected to maintain

parents / senior citizens by providing the basic amenities and

physical needs but refuse or fail to maintain / provide basic

amenities which conduct shall amount to ill-treatment and

non-maintenance and shall be a ground for parents / senior citizens to

seek eviction of children / legal heir from the property, which is the

only way for them to seek protection of their property so that, they

continue to have shelter over their head, and sustain themselves

independently without interference from their children / legal heirs.

Further, a senior citizen cannot knock the door of civil Court to

fight a legal battle to obtain the possession of the property as the

jurisdiction of the Civil Court is barred under Section 27 of the Act.

In this regard, we may refer to the judgment of the Punjab and Haryana

High Court in the case of Justice Shanti Sarup Dewan, Chief Justice

(Retd.) and Anr. (supra) wherein in para 37 it is held as under:

63. So, it must be held that the Act empowers the State Government to

formulate summary procedure for eviction of children / legal heir of

senior citizens, in the eventuality of ill-treatment or

non-maintenance of Sr. Citizen / Parents.

66. In the case in hand, it is seen that the Parliament has expressed

itself through the Act, the objective of which has already been

narrated above. It is seen from the objective of the Act and from

Section 22 whereby the State Government has been empowered to

prescribe “a comprehensive action plan for providing protection of

life and property of Senior Citizens”. This being so, the protection

of life and property basically pertains to law and order, which is a

State subject. Therefore, the obligation to prepare Action Plan has

been put on the State Government. So, it follows that a policy has

been determined by the Parliament for the protection of life and

property of the Senior Citizen by the District Magistrate on the basis

of Action Plan / Rules framed by the State Government. The action plan

to be prescribed is the one, which is speedy and to be implemented by

the District Magistrate, that is by an authority other than Civil

Court, as the jurisdiction of Civil Courts is barred. So, the

confirmation of such a power, even on an administrative authority, is

justified. While exercising the powers bestowed under the Act / action

plan / rules, the District Magistrate / Deputy Commissioner ceases to

be an administrative authority as understood in normal parlance (even

though there is no bar). He performs quasi-judicial functions as

different from administrative functions. Further, the rules framed by

the Government of NCT of Delhi, indicate the parameters on which the

District Magistrate / Deputy Commissioner shall act, which includes,

on an application by Senior Citizen / Parent(s) for eviction of his /

her son, daughter or legal heir from his / her property (as defined

under Section 2(f) of the Act of 2007), the District Magistrate, after

getting the title of the property verified through SDM, and on

consideration of the provisions of the Act of 2007, and forming an

opinion that the son, daughter or legal heir are ill treating him /

her by occupying their property, after following the principles of

natural justice, by giving hearing to all persons concerned, pass an

order of eviction.”

Thus, the remedy provided under the Act and the Rules is a ‘simple’,

‘inexpensive’ and ‘speedy’ remedy. The provisions have to be thus

interpreted in this context.””

Quite remarkably, the Bench then

holds in para 14 that, “In the present case, vide impugned order dated

26th March, 2021, the Tribunal has directed as under:

“Case called applicant presented HC order which says an councillor or

relative can represent applicant’s case in maintenance Tribunal, 10

minutes was given to applicant to submit application in writing.

Applicant gave an application stating that Mr. Sanjeev

Kumar is my choice to represent him in Maintenance Tribunal case.

Tribunal allowed applicant’s choice Mr. Sanjeev Kumar

to represent the case. Mr. Sanjeev Kumar was allowed to submit his

application in writing within 10 days, whatever applicant wants to

record as evidence. Respondent No.1 Mrs. Vinita Saxena wanted she had

already submitted an application. She was advised to submit her

submission to tribunal once again.

Respondent Ms. Taruna Saxena submitted that she

was not allowed to enter the house to haste after her father

applicant.

All applicant and respondent were advised to submit

application to Tribunal before 6th April, 2021. The next hearing of

case would be heard on 16th April, 2021, 1400 hrs.”

From the above, it is clear that the Tribunal has allowed the parties

to submit applications specifying as to what evidence they wish to

lead. The procedure being summary in nature, there is no doubt that

the Tribunal is vested with the power to exercise discretion upon the

facts and circumstances of each case. In a particular case, if the

Tribunal is of the opinion that the attendance of the witnesses and

proving of documents is required, it has the power under Section 8(2)

of the Civil Court for the purpose of taking evidence on record and

enforcing attendance of witnesses. This, however, would not mean that

in every case, the Tribunal would have to record oral evidence or take

on record documentary evidence. The nature of the proceedings itself

being summary, the discretion vests with the Tribunal to adopt the

procedure as may be suitable to the facts and circumstances of each

case. Moreover, even if lawyers are allowed to represent the

litigants, the summary procedure cannot be permitted to be converted

into a long-drawn trial and adjudication, so as to defeat the very

purpose of the legislation itself.”

To be sure, the Bench then points out

in para 15 that, “In the present case, the Tribunal has allowed

parties to file their applications in respect of any evidence which

they wish to record. The said applications would thus be considered in

accordance with law, in terms of the provisions of the Maintenance and

Welfare of Parents and Senior Citizens Act, 2007 and the Rules made

thereunder.”

Finally, the Bench then holds in para 16

that, “With these observations, the present petition, along with all

pending applications, is disposed of.”

In a nutshell, this latest, learned,

laudable and landmark judgment by a Single Judge Bench of the Delhi

High Court comprising of Justice Pratibha M Singh has declared as

ultra vires Section 17 of the Maintenance and Welfare of Parents and

Senior Citizens Act, 2007 which bars lawyers from representing parties

in matters before the Maintenance Tribunals. In other words, lawyers

are fully entitled to represent parties in matters before the

Maintenance Tribunals. Very rightly so!

Sanjeev Sirohi, Advocate,

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Extrajudicial killings and law enforcement: An analysis

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INTRODUCTION

Another Encounter occurred yet again and the Rule of Law is still in handcuffs. Recently, Vikas Dubey a man who is not just an ordinary gangster but also had deep political connections was allegedly killed in an encounter (extra judicial killing) by the UP police and was deprived from fair trial mandated under Article 14, 21 and 39 of the Constitution of India. This very act of “extra-judicial killing” hampers the fundamental principles of a democratic, secular, and liberal state and is also violative of domestic rights, Indian penal provisions, human rights and humanitarian laws.

Right to life is a most essential fundamental right of any individual, without which no other rights can prevail. Extra judicial killings is a violation of this right and is designated as an act of killing a person by the law enforcer to stop the offender from undergoing the judicial process. This unlawful killing by the state forces is illegal in every aspect even in the cases where the accused was entailed in the most flagrant crime.

REASONS BEHIND THE INCREASING CASES OF EXTRA JUDICIAL KILLINGS

There are a lot of reasons behind the increasing rates of extra-judicial killings in India but some of the main reasons due to which encounters are at a search are discussed below:

1. Public Support: It emerges out of a lack of faith in the judiciary because many people believe that the courts will not provide timely justice. And the fact of getting away with the cold-blooded murders is the key reason behind police getting bolder day by day and has started killing people at their will.

2. Political Support: Many political leaders project encounter numbers as their achievement in maintaining law and order in the society and getting away with these problems.

3. Rewards: The police forces in India are often rewarded and awarded for encounters. Along with this the government also provides promotions and cash incentives to the team involved in such encounters.

4. Ineffective Institutions: The institutions set up for this purpose, such as the National Human Rights Commission and the state human rights commissions have been redundant for many years. The judiciary is being fully empowered to take up such cases in suo-moto power; however, this practice is rarely seen today. .

5. Hero Worshipping: The police have become heroes in the society, as people see them doing the job of cleaning up the Indian society by killing the criminals. They are also projected several times as heroes on the silver screen with big budget films made on them showcasing their “heroic” acts. Amidst the entire hero worshipping, the people, the media and even the judiciary seem to cast aside the fact that the killings are suspect unless they have been properly investigated and the real story is established.

ANALYSIS

Rights of Police authorities:

The police officials possess the right to injure or kill the criminal, for the sole purpose of self-defence or at the time where it is imminently necessary for the maintenance of peace and order in the society and for the safety and security of the people. In India, every human being has a right to private defence which is also a natural and an inherent right of an individual provided to them under Section 96 of the Indian Penal Code (IPC).

However, the Supreme Court in Extra Judicial Execution Victim Families Association v. Union of India ruled that the right to private defence cannot be used for retaliation but can only be exercised to defend oneself and the distinction has to be drawn between the private defence and the use of excessive force.

Also, the police authorities has the right under Section 46 of Criminal Procedure Code(CrPC) to use force, which can even extend up to the cause of death of a person, or as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life. Thus, there is no provision prevailing in the country, which directly empowers the lawful authorities to encounter an offender irrespective of the grievousness of the crime committed by the person.

CONSTITUTIONAL PROVISIONS

India was intended to be a country governed by the rule of law according to the design established by the Constitution of India. As per the procedure rule of law, the constitution is the supreme power of the land and the legislative and the executive derive their authority from the constitution. In India, there is a procedure of criminal investigation prescribed by the law which is embedded in the constitution under Article 21, as the right to life and personal liberty. It is fundamental, non-degradable and is available to every person. Even the state does not have the authority to violate the right. Hence, it is the responsibility of the police officials to follow the constitutional principles and uphold the rights of life provided to every individual whether an innocent or a criminal.

SUPREME COURT GUIDELINES

The Supreme Court in the year 2014 in the case of PUCL v. State of Maharashtra dealt with numerous writ petitions questioning the genuineness of 99 encounter killings by the Mumbai Police in which approximately 135 alleged criminals were shot dead between the years 1995-1997. In this case the SC laid down certain guidelines which will act as a standard procedure to be followed for thorough, effective, and independent investigation in the cases of death during the police encounters. Some of the guidelines include the process for recording tip off (intelligence) regarding the criminal activities pertaining to the commission of a grave criminal offence. It also includes the guidelines to inform NHRC or State Human Rights Commission to report the encounter death.

CONCLUSION AND WAY FORWARD

After analysing the rights of the police, the increasing cases of extra judicial killings in India, and the constitutional duties listed in the Indian Constitution, there are some loopholes in the system that needs to be identifies and corrected. The procedure should be transparent, and the act of encounter killing must be investigated independently as they affect the credibility of the rule of law. There is a need of an hour to ensure that there exists a rule of law in the society that needs to be adhered to by every state authority and the masses collectively. There is a need to ensure proper physical custody of the accused in order to prevent any attack by them on the police personnel. Moreover, there is a dire need for complete overhauling of the criminal justice system and bringing out required police reforms. There should be Standard guidelines that need to be laid down to train the police personnel in a better way and equip them with all relevant skills so that they are in a position to effectively tackle every dreadful situation. The most important thing is the Human rights angles need to be kept in the mind while dealing with arrested individuals/persons.

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PROCEDURAL REQUIREMENTS ARE THE ONLY SAFEGUARDS AVAILABLE TO A DETENU: JAMMU AND KASHMIR HIGH COURT

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Without any iota of doubt, the Jammu and Kashmir High Court has very rightly, remarkably and rationally in a latest, learned, laudable and landmark judgment titled Wasim Ahmad Trag v/s Union Territory of J & K and another in WP (Crl.) No. 12/2021 that was reserved on 4 June, 2021 and then finally delivered on July 15, 2021 while setting free a detenu from preventive custody has held that the procedural requirements are the only safeguards available to the detenu and therefore, they must be strictly complied with. A Single Judge Bench comprising of Justice Rajnesh Oswal of Jammu and Kashmir High Court made it clear that the Court cannot go behind the subjective satisfaction of the detaining authority and thus, procedural requirements are to be followed scrupulously, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. It must be apprised here that the petitioner in this noteworthy case had challenged the order of preventive detention which was passed against him while he was in custody in connection to alleged commission of offences under the NDPS Act.

To start with, the ball is set rolling in para 1 of this cogent, convincing and composed judgment authored by a Single Judge Bench comprising of Justice Rajnesh Oswal of Jammu and Kashmir High Court wherein it is put forth that, “Through the medium of this petition filed through his Uncle, the petitioner has questioned the order of detention bearing No. 01/DMP/PSA/2021 dated 02.01.2021 issued by the respondent No. 2 by virtue of which the petitioner has been ordered to be detained under the Jammu and Kashmir Public Safety Act, 1978 (for short, the Act).”

To put things in perspective, the Bench then points out in para 2 of this judgment that, “It is stated in the petition that the petitioner was arrested by the Police of Police Station, Pulwama in the month of January, 2021 and was implicated in the FIR bearing No. 201/2020 for commission of offences under section 8, 21 and 29 of the NDPS Act by the Police Station, Pulwama. While the petitioner was in custody in the aforementioned FIR, the petitioner was ordered to be detained under the Act vide order dated 02.01.2021.”

While dwelling on the petitioner questioning the detention order, the Bench then enunciates in para 3 that, “The petitioner has questioned the order of detention inter alia on the ground that the petitioner has been detained on the basis of vague grounds and no prudent man can make a representation against such vague allegations and that the order of detention has been executed in the month of February, 2021 that after a delay of one month, no documents those have been relied upon by the Detaining Authority i.e. the respondent No. 2 herein have been furnished to the petitioner and the constitutional as well as procedural safeguards as envisaged by the Constitution of India as well as under the Act have not been complied with by the Detaining Authority.”

As against what is stated in para 3, the Bench then brings out in para 4 that, “The respondents have filed the response, in which they have stated that the petitioner has been detained pursuant to the order of detention and they have categorically stated that the procedural as well as statutory safeguards enshrined under Article 22(5) of the Constitution of India and section 13 of the Act have been complied with by the respondents while passing the detention order. They have further stated that they have supplied all the requisite documents to the petitioner so as to enable him to make an effective representation to the detaining authority and to the Government. Pursuant to the order of detention, the warrant was executed by the Executive Officer, Syed Jaffar of Police Station, Awantipura and the petitioner was handed over to the Superintendent of Central Jail, Jammu for lodgment. The contents of the detention order/warrant and the grounds of detention were read over and explained to the petitioner in the language he fully understood.”

To say the least, the Bench then notes in para 5 that, “The respondents have produced the soft copy of the detention record.” On the one hand, the Bench then envisages in para 6 that, “Mr. M. Ashraf Wani, learned counsel for the petitioner has vehemently reiterated the grounds those have been taken in his petition. He laid much emphasis only on the ground that the petitioner could not have been detained under the Act as the petitioner was implicated in the FIR bearing No. 201/2020 for commission of offences under sections 8, 21 and 29 of the NDPS Act and as the quantity of the contraband was commercial quantity, the petitioner could not have been granted bail, as such, the order of detention is bad in law as there was no likelihood for grant of bail to the petitioner.”

On the other hand, the Bench then mentions in para 7 that, “On the contrary, Mr. Mir Suhail, learned Additional Advocate General appearing for the respondents has vehemently argued that all the documents have been served upon the petitioner. Mr. Suhail has also argued that the detention order is legal and all procedural and statutory safeguards have been complied with while passing the order of detention, as such, the order of detention is sustainable in the eyes of law.”

Briefly stated, the Bench then observes in para 8 that, “Heard and perused the detention record meticulously.”

Quite remarkably, the Bench then very rightly observes in para 9 that, “Before appreciating the rival contentions of the parties, it would be appropriate to note that the procedural requirements are the only safeguards available to the detenue since the Court cannot go behind the subjective satisfaction of the detaining authority. In Abdul Latif Abdul Wahab Sheikh v. B. K. Jha reported in (1987) 2 SCC 22, the Apex Court has held that the procedural requirements are the only safeguards available to a detenue since the court is not expected to go behind the subjective satisfaction of the detaining authority. The procedural requirements are, therefore, to be strictly complied with, if any, value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard.”

Most remarkably and also most significantly, what forms the cornerstone of this brief, brilliant and balanced judgment is then elaborated upon in para 10 wherein it is postulated that, “From perusal of grounds of detention it reveals that the order of detention has been passed on the ground of the involvement of the petitioner in FIR bearing No. 72/2014 for commission of offences under sections 147, 148, 336, 435, 307, 353, 332 and 427 RPC, FIR bearing No. 78/2014 for commission of offences under sections 147, 148, 341, 336 and 427 RPC, FIR bearing No. 100/2015 for commission of offences under sections 148, 149, 341 and 336 RPC of Police Station, Tral and thereafter, the petitioner was found involved in FIR bearing No. 201/2020 of Police Station, Awantipora for commission of offences under sections 8, 21 and 29 of the NDPS Act as while driving a vehicle bearing registration No. JK01X 4920, the petitioner was found to be in possession of 17 bottles of Codeine Phosphate and 39 tablets of Spasmo Proxy-Von Plux, It is further stated that the petitioner is at present in custody and has applied for bail in the court of law. A perusal of the detention record reveals that the order of detention was executed on 03.02.2021 and notice of detention and contents of detention warrant and grounds of detention were read over to the petitioner in English and explained to him in the Urdu and Kashmiri language. A perusal of the execution report reveals that only four leaves i.e. one leaf of order of detention, one leaf of notice of detention and two leaves grounds of detention were furnished to the petitioner at the time of execution of warrant. However, the perusal of the grounds of detention reveals that the Detaining Authority has relied upon all aforementioned FIRs while passing the order of detention but none of the FIR has been furnished to the petitioner as is evident from the execution report and, as such the petitioner has been deprived of his right to make an effective representation against his preventive detention to the detaining authority as also to the Government. It is only after the petitioner is supplied all the material that he can make an effective representation to the Detaining Authority and also to the Government and if the same is not done, he is deprived of his valuable constitutional right. Failure on the part of the respondent No. 2 to supply the material relied upon by him, while passing the detention order renders it illegal. Reliance is placed upon the decision of Apex Court in Thahira Haris v. Govt. of Karnataka, reported in (2009) 11 SCC 438, the relevant para is reproduced as under: “30. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has the right to be supplied with copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention.””

Adding more to it, the Bench then also points out in para 11 that, “Otherwise also, as the petitioner was found to be involved in carrying the commercial quantity of the contraband, so in ordinary course the petitioner could never have been granted bail under the NDPS Act. As such, this Court has no hesitation in observing that the satisfaction recorded by the respondent No. 2 that the court may grant bail in the instant case is without any basis.”

Finally, the Bench then holds in para 12 that, “In view of the above, this petition is allowed. Detention order No. 01/DMP/PSA/2021 dated 02.01.2021 is quashed. Petitioner (detenue) be set free from the preventive custody, provided he is not required in any other case.”

All said and done, it is the bounden duty of all the courts in our country to always strictly comply with what is the essence of the Jammu and Kashmir High Court judgment in this notable case that, “The procedural requirements are the only safeguards available to the detenu and therefore, they must be strictly complied with.” Thus a Single Judge Bench of Justice Rajnesh Oswal of the Jammu and Kashmir High Court in this case has very rightly held that the Court cannot go behind the subjective satisfaction of the detaining authority and thus, procedural requirements are to be followed scrupulously, if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard. It must be adhered to in totality. The liberty and the constitutional rights guaranteed to a citizen under our Constitution is paramount and has to be protected always. This is what is the crux also of this notable judgment!

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LEGAL PERSPECTIVE ON PORN FILMS

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The recent arrest of Shilpa Shetty’s husband, Raj Kundra, in a case related to porn films, has again stirred up the usually-closeted conversation on the legality of pornography with regards to the community standard. The general meaning of pornography is the depiction of erotic behaviour, by print, visuals, books, films, writings, or any form of literature and other media, intended to cause sexual excitement. Some consider pornography as a mere display of pleasure and find it a social evil. Whereas, another section of society thinks of pornography as a form of art. As one of the purposes of the creation or consumption of any art form is to achieve a sense of gratification and to invoke emotion, pornography is, therefore, not less than art.

The Constitution of India has guaranteed the fundamental right of freedom to speech and expression and has considered this as a “basic human right” and “a natural right.” It embraces the idea of dissent and freedom of propagation of ideas for a healthy democracy. The right to express freely also comprises the right to artistic freedom. Porn films could be brought under the ambit of artistry. However, the fundamental right mentioned in Article 19(1)(a) is subject to reasonable restrictions as it is not an absolute right. Article 19(2) states those restrictions.

In Devidas Ramachandra Tuljapurkar v. State of Maharashtra, AIR 2015 SC 2612, the court held that artistic freedom is not absolute or limitless, it is subject to restrictions that may be in the interest of public decency and morality. In Rangarajan v P Jagjivan Ram, (1989) 2 SCC 574, the Supreme Court justified the pre-censorship of a film because films can disturb and arouse feelings and has as much potential for evil as it has for good. Hence, a film cannot be allowed to function in a free marketplace just as the newspaper or magazines do.

DECENCY OR MORALITY: A REASONABLE RESTRICTION

Under Article 19(2), one of the reasonable restrictions against freedom of speech and expression is decency or morality. However, the terms denote a kind of vagueness as there is no permanent meaning for ideas about decency or morality. It varies from time to time and from society to society, depending on the contemporary standards.

Even the sections from 292 to 294 of the Indian Penal Code have listed out selling obscene books, selling obscene things to young persons, committing an obscene act, or singing an obscene song in a public place as an offence. 

The test of obscenity was laid down in R v Hicklin, LR 3 QB 360 and Ranjit D Udeshi v. State of Maharashtra, ibid, whether the tendency is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort is likely to fall. 

In Chandrakant Kalyandas Kakodkar v. State of Maharashtra, AIR 1970 SC 1390, the Court tried to create a distinction between pornographic content and artistry work.

Only through this restriction can one try to find a rationale behind the banning of even certain adult films like Dirty Grandpa, Fifty Shades of Grey and The Girl with the Dragon Tattoo. Although these lines were getting blurred and OTT platforms were a massive contributor to the freedom of artistic expression, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, are likely to change the situation soon.

LAW ON PORNOGRAPHY

While looking at the centuries-old Indian Penal Code or the modern Information Technology Act, consumption of pornography is no offence, even there is no charge of abetment of obscenity mentioned anywhere. This is so because the law respects the right to privacy. The Supreme Court, in 2015, noted that watching porn in privacy is no crime, and passing an interim order to ban porn websites will be a violation of the right to privacy under Article 21 of an individual. Porn can be accessed in private, but it is banned in cyber cafes too.

PORN BUSINESS

The law is intolerant towards the supplier or producer of obscene material. If a user does more than consuming porn, then, he can be held liable under the IT Act. Not just publishing, but also transmitting obscene material is a punishable offence under Sections 67 and 67A of the aforementioned Act. Child pornography of all forms is unsparing and punishable under Section 67 B of the Act and Section 14 and 15 of the POCSO (Prevention of Children from Sexual Offences) Act.

The Department of Telecom had banned almost 857 porn websites, but the websites that did not promote child pornography were not banned. The ban was criticized by many that the government was depriving the adults of the harmless freedom of watching porn.

It could be stated that the business of pornography, creating and producing porn films, and the right to choose prostitution as a profession by a woman can be included under the ambit of Article 19(1)(g) that provides the right to practice any profession or carry out any trade or business. However, this right is not absolute and is subject to restrictions stated in Article 19 (6) of the Constitution.

The Government can meddle with the fundamental right to practice any trade, business, or profession by imposing reasonable restrictions for the interest of the general public. When society’s interest is kept in mind, its effect on the public and passage of time is considered. There are still several debates happening whether a prostitute can fall under Article 19(1)(g). However, due to other challenges that society faces, like child trafficking, increased sexual crimes, outraging the modesty of women, etc., the porn industry, although contributing a huge chunk to the Indian economy indirectly, is in a gray area as the legalities are mentioned nowhere.

The pornography industry has two types of porn – soft-core and hard-core. Hard-core is the one that involves complete nudity and a clear show of sexual acts, whereas, soft-porn does not involve complete nudity as such but consists of enough sexual and arousal content that satisfies to be termed as pornography. In India, where the market of hard-core porn is constricted, soft porn is sold through numerous resources including Indian-based OTT platforms.

Decades ago, one of the famous filmmakers – Alfred Hitchcock once said that sex sells. The same formula of creating soft porn is applied even now by content creators under the garb of artistic freedom. Ekta Kapoor’s ALT Balaji was in news recently for its controversial series XXX Season 2 as an FIR was filed against it. Highly erotic content is absorbed by the Indian audience day in and out through platforms like Primeflix, Kavita Bhabhi, Gup Chup, Wife in a Metro, and Ullu and yet, there is no regulatory mechanism in place for the same.

CONCLUSION

Several countries have a legal system in place to regulate pornography. Some countries even promote the industry and look at it as a source of earning money in the international market. Such a mechanism may be difficult to adapt in the Indian scenario due to socio-cultural reasons. However, to curb the rise of cybercrimes related to pornography among youth, awareness and transparent sex education, along with initiatives to create an environment of learning is necessary. The law must lend its helping hand in the growth and development of the young generation by acknowledging the natural urge and hormonal changes of the body and give a legitimate solution by including the stakeholders in the conversation.

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