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Section 144 CrPC order on social media a case of executive overreach

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Section 144 CrPC order on social media
Section 144 CrPC order on social media

The deputy Commissioner of Police, Greater Mumbai in an attempt to curb misinformation on social media platforms during lockdown, in continuation of the earlier prohibitory order has reissued a similar verbatim order, which was first issued on April 10, and continued till April 25. The present prohibitory order is operative from 25th May, 2020 till 8th June, 2020.

The order seeks to prohibit dissemination of such information through social media platforms that causes panic and confusion, is found to be derogatory and discriminatory towards a particular community or incites “mistrust” towards government functionaries and their actions taken in order to prevent the COVID-19 spread, and thereby causing danger to human health or safety or disturbance to the public tranquility. The order contains that person designated as ”Admin” on a messaging or social media platform “shall be personally responsible for any such information being disseminated from a group administered by them.” Any person contravening the order will be prosecuted under Section 188 of the IPC. From the bare reading it is clear that the prohibitory order travels beyond the scope and mandate of the section 144 CR.P.C, and prima facie unreasonable and suffers from legal and constitutional infirmities.

Invoking Section 144 of the CR.P.C

Section 144 of the CR.P.C is  too broad and the words of the section are wide enough to give ample power to the authorities to be used without any reasonable restrictions in cases of apprehension of danger to human life, safety, public tranquility. The prohibitory order intends to restrict the activities of individual and general public from communicating/sharing/circulating misinformation on social media platform or criticising government functionaries actions during COVID-19. The order applies to all the residents of Mumbai, who uses social media apps or an admin of any group of social media.

The Execuitive Magistrate while invoking power u/s 144 CR.P.C, must not apply a straight jacket formula without assessing the gravity of the prevailing circumstances; the restrictions must be proportionate to the situation concerned. The Executive Magistrate cannot pass order u/s 144 in anticipation or on the basis of a mere apprehension. The order of the Dy. Commissioner is equivalent to a blanket ban, wherein, citizen rights are curtailed and they are prohibited to comment on the actions of the Government functionaries during COVID-19.

From past few years, there has been a trend to use S. 144 CR.P.C by the States and local administration to restrict people from protesting or to shut internet, because of which there can be a law and order situation, i.e. CAA protests, J&K internet shut down, situation during Ayodhya judgement. The judicial precedents on Section 144 CR.P.C, highlights that restriction must be reasonable and cannot curtail individual rights of legitimate expressions under the Constitution and its subject to judicial review.

In Madhu Limaye and Anr v. Ved Murti and Ors. ((1970) 3 SCC 746), the Court held that if the action sought by the empowered authorities is too general in its scope, legal remedies of judicial review should be claimed.

The Apex Court in Re: Ramlila Maidan incident (2012) 5 SCC 1, held that the restraint has to be reasonable and must be minimal…the most onerous duty that is cast upon the empowered officer by the legislature is that the perception of threat to public peace and tranquility should be real and not quandary, imaginary or a mere likely possibility…that there has to be an objective application of mind to ensure that the constitutional rights are not defeated by subjective and arbitrary exercise of power.

In  Anuradha Bhasin v. Union of India, Writ Petition (Civil) No. 1031 of 2019, the Apex Court has held that the power u/s 144 CR.P.C, cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights. The Constitution protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144, unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger. It ought to be noted that provisions of Section 144, will only be applicable in a situation of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.

The nature of an order under this section is prohibitory, and there is a differentiation between measures that have a ‘prohibitory’ and ‘restrictive’ effect. The words ‘prohibition’ and ‘restriction’ cannot be used interchangeably. The threshold for ‘prohibiting’ a particular activity is higher and must indeed satisfy the requirement that ‘any lesser alternative would be inadequate.’ The prohibitory order issued repetitively in verbatim, is in direct contravention of Apex Court directions in Anuradha Bhasin, wherein, the Court stated that the restriction through prohibitory order should be done after a careful inquiry by the Executive Magistrate before exercising the extraordinary power. However, in this case there seems to be no objective inquiry about the effect and impact of the order first issued in April and reissued subsequently. It is still unclear that what purpose the prohibitory order served at first instance, and thereafter it was needed to be reissued repetitively in verbatim. Whether any action was taken against anyone under this order or whether the order succeeded to achieve its aim and objective.

Ambiguity and Absurdity in the Language

The terms and phrases used in the order are vague, absurd and unreasonable for e.g. “inciting mistrust towards government functionaries”, ‘distortion of facts’, ‘information causing panic and confusion among the general public’, ‘derogatory and discriminatory towards a particular community’, ‘derogatory content’. It is trite law that the words and phrases used in executive orders, statutes, rules must be clear, plain, unambiguous and reasonably susceptible to only one meaning and words must be expounded in their natural and ordinary sense. In Nathi Devi v. Radha Devi Gupta, AIR 2005 SC 648, the Apex Court held that in case of ambiguity in the words and phrases it will lead to an absurdity and inconsistencies or unreasonableness which may render the act in question as unconstitutional. The various terms used in prohibitory order is undefined, open ended and unambiguous, therefore, making it amenable to judicial review.

The Court in Shreya Singhal v. Union of India, AIR 2015 SC 1523, stated that the definition of offences under the section 66A of the IT Act were both “open-ended and undefined” and that “the information disseminated over the Internet need not be information which ‘incites’ anybody at all. The Court further stated, when the rights are restricted, firstly, there has to be surety of a looming danger that has a ‘direct and proximate nexus’ with the expression being curtailed, secondly, this expression needs to qualify as ‘incitement’ and not mere advocacy of one’s opinion, and thirdly, the measure imposed should be the last resort and unavoidable. The present prohibitory order falls flat on all accounts and liable to be withdrawn in larger public interest.

Freedom of Expression vis-avis Fair Criticism

While issuing a prohibitory order the Executive Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure. The phrase, “inciting mistrust towards government functionaries” abridges the constitutional right of freedom of expression provided under Article 19 and curtails citizens’ rights to criticise the government, which is in violation of fundamental rights to free speech under the Constitution. The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution.

In Kedar Nath Singh v. State of Bihar, 1962 SCR Supl. (2) 769, the Court held that a citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.The Supreme Court in Shreya Singhal, while discussing the scope of “reasonable restrictions” held that section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such rights and the reasonable restrictions that may be imposed on such right. Therefore, power under section 144 cannot be used as a legal tool to suppress the constitutional rights of the citizens.

Availability of Appropriate Penal Provisions

During lockdown the circulation of fake news and misinformation on social media is a cause of concern for the authorities; therefore, to curb spread of such misinformation the States Government issued advisory to the public and also directed social media platforms to take necessary action against fake news. The Cyber cell of different States removed various fake news and objectionable content from social media platforms and also made arrests under IPC, IT Act and other statutes. It is apt to mention that during lockdown neither any State nor the district administration of any State invoked S. 144 CR.P.C., except Mumbai, to curb social misinformation or to restrict criticism of government functionaries by making group admin personally liable for the action of the members.

As per the principle of Statutory Interpretation, ‘Generalia Specialibus NonDerogant’  the provisions of a special law will prevail over the provisions of general law. In case of a conflict between the procedural law, i.e. CrPC and a special law, i.e. IT Act the special law will prevail. In Union of India v.  Ram Saran, Criminal Appeal No. 410 of 1997, the Apex Court held that, where a special procedure is prescribed by a special law, then that special law must prevail over the provisions of CR.P.C.

There are adequate provisions under the IPC and other statutes to take action against fake news and social misinformation, however, invoking S. 144 CR.P.C., to issue a prohibitory order, tantamount to misuse of power, and its an unwarranted and a disproportionate action on behalf of the authority; when the appropriate legal action can be taken against such misinformation and fake news on social media under various sections of IPC i.e. 153A, 295A, 504 and 505, Section 54 of Disaster and Management Act, 2005, Section 3 of the Epidemic Disease Act, 1867, Section 69A of the IT Act, and section 5(2) of the Indian Telegraph Act, 1885.

Curious Saga of Group Admin Liability

The most problematic issue under the prohibitory order is that it fixes criminal liability for an individual, i.e. group admin by way of an executive order, in the absence of a charging section, making the order arbitrary and unjustified under the law. The order imposes a fictitious liability that is very stringent, and with no procedural clarity or boundaries drawn for its exercise. The Delhi High Court in Ajay Bhalla vs. Suresh Chawdhar, CS (OS) No.188/2016, has held that defamatory statements made by any member of the group cannot make the Administrator liable. It is not that without the approval of the administrator, the members cannot make posts on the group.

Presently, there are no statutory provisions for making the group admin liable for the post made by a member of the group. A group admin has only limited power to add or remove members from the group. Unless the admin has abetted, or assisted in posting an objectionable message, the admin cannot be held liable even vicariously.

The fact that mens rea is must for the constitution of a criminal offence is the basic principle of criminal jurisprudence. Both criminal acts (actus reus) and intent (mens rea) must be together to constitute a crime. The principle of vicarious liability has no application in criminal law. In  Hira Lal Hari Lal Bhagwati v. CBI, (2003) 5 SCC 25, the apex Court stated that under the penal law, there is no concept of vicarious liability unless the said statute covers the same within its ambit.

Even under the IT Act the group administrator is not an intermediary. He is thus, not subject to the obligations drawn out for an intermediary, such as to remove objectionable content on coming to know about it. Therefore, imposing criminal liability on group admin through an executive order violates the constitutional rights of a group admin.

Conclusion

In the current COVID-19, a situation when the state functionaries are overburdened with a health crisis, it is merely impossible to execute this vague and ambiguous order. The repetitive issuance of the prohibitory order without any application of mind is unjust, arbitrary and abuse of power. The Executive Magistrate is duty bound to provide sufficient reason and substantiate the situation of immediate prevention, before renewing it. The prohibitory order has been re-issued in verbatim without any explanation and justification. Invoking extraordinary power under section 144 CrPC to curb misinformation is totally unwarranted in view of existing penal provisions. The criminal action against the group admin in the absence of any statutory backing is without the authority of law. The restrictions imposed by the prohibitory order on the individual right to freedom of expression under Section 144, is arbitrary and unconstitutional.

By Vaibhav Choudhary, managing partner, YHprum Legal, Akansha Rajpurohit, Managing Partner, YHprum Legal, Shruti Shrestha Partner, YHprum Legal .

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Enka Insaat vs Chubb: What UK Supreme Court affirmed?

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INTRODUCTION

The five-judge bench of UK Supreme Court on 9 October 2020 pronounced a landmark judgment in Enka Insaat Vs Sanayi AS vs OOO Insurance Company Chubb [2020] UKSC 38, which is considered to be a leading authority in the arbitration regime on the governing law of arbitration agreements and the role of the courts of the seat in granting anti-suit relief.

FACTS

The claimant (“Enka”) is a Turkish company carrying on an international construction and engineering business based in Turkey but with a substantial presence and history of operations in Russia whereas the First Defendant (“Chubb Russia”) is a Russian company and part of the well-known Chubb insurance group. In the present case Enka was one of the subcontractors amongst others providing services in connection with a power plant for the Defendant (“Chubb Russia”).

On 1st February 2016 a severe fire caused massive damage to the plant. The owner, Unipro, claimed from its insurer, Chubb (in this case). In May 2019 Chubb Russia commenced proceedings against Enka and 10 other parties in the Russia (“Russian Proceedings” in Arbitrazh Court), seeking damages in relation to a massive fire in February 2016 at the power plant in Russia. However, over this claim, Chubb Russia asserted that “the accident was caused by defects (deficiencies) in the design, structures, fabrication and installation of the [power plant] including fuel oil pipelines”. To all this, Enka asserted that it had no liability and could have no liability, on the basis that in November 2014 the works which were alleged to have caused the fire had been excluded from the scope of works to be performed by Enka and had subsequently been performed by another contractor.

On 17 September 2019 Enka filed a motion in the Russian proceedings to have Chubb Russia’s claim against it dismissed (or “left without consideration”) pursuant to article 148(5) of the Arbitrazh Procedure Code, which is intended to give effect to Russia’s obligations under article II(3) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (“the New York Convention”) to refer to arbitration parties who have agreed to submit to arbitration a dispute of which a court of a contracting state is seized. It was well argued and contended by Enka that the claim against it fell within the scope of the arbitration agreement contained in article 50.1 of the construction contract and ought therefore to be resolved, not by the Russian courts, but by an arbitration conducted in accordance with that provision in London. Interestingly after some hearings, the judge in the Russian proceedings announced her decisions (a) not to grant Enka’s motion to refer the claim against it to arbitration and (b) to dismiss Chubb Russia’s claims against all the defendants on the merits. Meanwhile, Enka had on 16 September 2019 brought an arbitration claim in the Commercial Court in London seeking an anti-suit injunction to restrain Chubb Russia from further pursuing the Russian proceedings against Enka on the ground that this was a breach of the arbitration agreement in article 50.1 of the construction contract.

DECISIONS OF THE LOWER COURTS

On 15 October 2019 Carr J declined to grant an interim anti-suit injunction but gave directions for an expedited trial. The trial took place on 11 and 12 December 2019 before Andrew Baker J. He gave judgment on 20 December 2019, dismissing Enka’s claims against all the defendants. His primary reason for doing so was that he considered the appropriate forum to decide whether Chubb Russia’s claim against Enka falls within the arbitration agreement to be the Moscow Arbitrazh Court and not the English Commercial Court.

To note, Andrew Baker also relied on the fact that Enka did not seek an interim order from an arbitral tribunal, and that it did participate to some extent in the Russian court proceedings.

Aggrieved by the decision, Enka applied to the Court of Appeal for permission to appeal from this decision. The application was granted on 6 February 2020 and the appeal was heard on 7 and 8 April 2020. On 29 April 2020 the Court of Appeal (Flaux, Males and Popplewell LJJ) allowed Enka’s appeal and issued an anti-suit injunction restraining Chubb Russia from continuing the Russian proceedings. This appellate court swept the decision of Andrew Baker on the court that he made a wrong decision regarding the law governing the Arbitration Proceeding.

THE COURT OF APPEAL

The court also added that On forum non conveniens  grounds, the previous decision was wrong in principle. 

First, the choice of the seat of the arbitration is an agreement by the parties to submit to the jurisdiction of the courts of that seat. 

Secondly, the grant of an anti-suit injunction to restrain a breach or threatened breach of the arbitration agreement is an exercise of such powers.

The English Court as the court of the seat of the arbitration is for that reason the appropriate forum to exercise the jurisdiction to grant anti-suit relief. It is required to decide whether threatened or actual proceedings constitute a breach of the arbitration agreement, and if they do, to protect the integrity of the arbitration agreement by granting anti-suit relief unless there is a strong reason for not doing so. That is part of the supervisory jurisdiction of the court of the seat, to which the parties submit by choosing the place of the seat. There is no room for the application of any forum non conveniens consideration: either the forum conveniens question does not arise or it is automatically answered in favour of the English Court as the court of the seat.

Further, In order to decide whether to make an anti-suit injunction, the Court would need to decide whether the arbitration clause covered the dispute in question. This required a decision as to what law governed the arbitration agreement. This cannot be decided simply on the basis that the contract provides for the law governing the whole contract, because the arbitration agreement is considered a separate agreement whose governing law might be different (but usually is not). This is particularly possible where the seat of arbitration is different from the governing law, because that opens the way for the argument that it would make more sense for the arbitration agreement to be governed by the law of the place where the arbitration will be seated. Generally there is a presumption that the governing law of the arbitration agreement will be the same as the seat of arbitration.

Therefore, in light of these considerations, The Court of appeal concluded in this case that, even if the main contract was governed by Russian law, it made more sense for the arbitration agreement to be governed by the law of England, which the parties had chosen as the seat of arbitration and hence On the main issue of determining the proper law of the arbitration agreement, the Court of Appeal clarified the relevant principles. It is well established that the proper law of an arbitration agreement (“AA law”) may not be the same as the proper law of the main contract.

The court also clarified that the English Courts will exercise their “curial Jurisdiction” to grant anti-injunction based on the parties choice of London as an arbitration seat and regardless of the law governing the AA. The court also emphasized that the “anti-suit injunction jurisdiction is concerned to protect and enforce the integrity of arbitration agreement” and hence the role of the curial court is to “interrogate the substantive jurisdiction of the arbitral tribunal (or the putative or potential tribunal if none has been or is intended to be appointed) in determining whether the foreign proceedings are a breach of the agreement to arbitrate the dispute in question.” The court also pointed out that even in cases where the AA is governed by foreign law, consideration of foreign conveniens and comity should not be taken into account by English Courts in deciding the grant of anti-suit injunctions.

DECISION OF THE SUPREME COURT

In the landmark judgment given by Lord Hamblen and Lord Leggatt (with which Lord Kerr agreed), the Supreme Court confirmed that, under English common law, the search for the main contract law is governed by the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament, see Article 3.1 and 4). However, Questions regarding the law governing arbitration agreements, on the other hand, are not covered by the Rome I Regulation and is excluded from the preview of Article 1(2)(e). The AA law is to be determined by applying the three stage test required by English common law conflict of laws rules, namely:

IS THERE AN EXPRESS CHOICE OF LAW?

If not, is there an implied choice of law?

If not, with what system of law does the arbitration agreement have its closest and most real connection?

The rules of English law on contractual interpretation will be applied by the English Court to decide the issue.

The court then relied on a previous decision where the valiant attempt by Hamblen J (as he then was) in Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi AS v VSC Steel Co Ltd [2013] EWHC 4071 (Comm); [2014] 1 Lloyd’s Rep 479, to set out, as clearly as possible, the relevant principles to determine the law governing the AA.

Even if an arbitration agreement forms part of a matrix contract (as is commonly the case), its proper law may not be the same as that of the matrix contract.

The proper law is to be determined by undertaking a three-stage enquiry into (i) express choice, (ii) implied choice and (iii) the system of law with which the arbitration agreement has the closest and most real connection.

Where the matrix contract does not contain an express governing law clause, the significance of the choice of seat of the arbitration is likely to be “overwhelming”. That is because the system of law of the country seat will usually be that with which the arbitration agreement has its closest and most real connection.

Where the matrix contract contains an express choice of law, this is a strong indication or pointer in relation to the parties’ intention as to the governing law of the agreement to arbitrate, in the absence of any indication to the contrary.

The choice of a different country for the seat of the arbitration is a factor pointing the other way. However, it may not in itself be sufficient to displace the indication of choice implicit in the express choice of law to govern the matrix contract.

Where there are sufficient factors pointing the other way to negate the implied choice derived from the express choice of law in the matrix contract the arbitration agreement will be governed by the law with which it has the closest and most real connection. That is likely to be the law of the country of seat, being the place where the arbitration is to be held and which will exercise the supporting and supervisory jurisdiction necessary to ensure that the procedure is effective.”

The principal rationale for treating an express choice of main contract law as indicative of a choice of AA law is because businessmen do not usually intend that their relationship should be governed by more than one system of law (see Sulamerica Cia Nacional de Seguros SA v Enesa Engelharia SA [2013] 1 WLR 102 per Moore-Bick LJ at [11]).

The Court of Appeal stipulated that “this is a sensible starting point where there is no arbitration clause with a different seat; but it ceases to have any application where there is. In such cases, whatever the AA law, the parties have necessarily chosen their relationship to be governed in some respects by two systems of law, namely the curial law and the main contract law” (paragraph 95, emphasis added). Overall, as emphasised by Lord Neuberger in Sulamerica at [51], determining the proper law of the arbitration agreement was in each case a matter of contractual interpretation.

Applying these principles set above, the Court of Appeal found that the AA law in the Contract was governed by English law. Whilst the governing law of the Contract was Russian law, this was not by express choice. 

Further, In this case, there was no choice of law to govern the contract as a whole and the general rule would be applied in that situation so that the law of the seat of arbitration governs the arbitration agreement.

Therefore English law governed the arbitration agreement and the Court of Appeal›s basis for granting the anti-suit injunction remains sound.

The Supreme Court considered the possibility that, where the law governing the contract also governs the arbitration agreement, this would nullify the arbitration agreement fully or partially. The Court acknowledged the possibility that might justify a departure from the general rule in order to give effect to the principle that generally, contracts should be construed so as to avoid invalidity.

The Supreme Court also confirmed the Court of Appeal›s decision that it was appropriate for the court to consider whether to grant the anti-suit injunction, given that England was the seat of arbitration.

Interestingly, Lord Burrows and Lord Sales partially dissented from the decision of three judges in this case.

CONCLUSION

This is a remarkable judgment by the Supreme Court of England and is going to be an authority in the pro-arbitration regime. The court has clearly clarified the position and power of the English courts to exercise the curial law in order to grant anti-suit injunctions as a matter of relief. As pointed out by Lord Justice Popplewell in paragraph 109 that “the scope of the curial law is not limited to the exercise of purely procedural powers. It involves the curial court determining aspects of the substantive rights of the parties under their arbitration agreement by reference to the curial law.” Saying this, Lord Justice Popplewell has vested a responsibility on the draftsman to draft the AA more diligently. The law set out with regard to the governing law of the arbitration agreement will also be considered to be a remarkable authority and will be a helpful percent for complicated cases in future.

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Legally Speaking

Indian constitutional script in defining women’s presence in Parliament: A myth or a reality?

Women and men have almost equal population in India, but the former have a marginal presence in the Lok Sabha. When there is gender parity in Parliament, better policies can be formulated, which would ideally result in better governance. One major way to facilitate the increase in representation is through the recognition of the women already present and encouraging more women to get into politics.

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Lapsing onto the tables since 1996, patriarchy wrenched the pages of women’s reservation; thence, the ensconced ‘political equality’ remains unlearnt.

Amidst the debate of gender inequality or equality, the notion of women’s rights, the feminists’ theories actualize; considering, if the male to female ratio can ensure equality if the Constitution of India under Article 14 envisages gender equality and equity in the country, so why the electoral representation of women in the parliament in still under scrutiny. With the changing dynamics in the country, women are given more rights as compared to the older times, but the rights concerning the reservation in parliament in still pending to be marked in the checklist i.e. the enactment of the Women Reservation Bill or the Constitution (108th Amendment Bill) 2008 by the Parliament of India. The script of the Constitution in defining equality has not been truly implemented in terms of “political equality” why, because, women are still considered weak and unqualified and are still expected to settle down and look after the kids. The women namely, Mrs. Pratibha Patil, Mrs. Sushma Swaraj, Ms. Jayalalitha, Mrs. Nirmala Sitharaman in Indian politics had pasted a huge impact on the minds of Indian Citizens and have proved to be worthy in governing the nations constituency has been negated by the houses of the parliament because, when we go on to talk about Women in Indian Politics, we hear very few names of female politicians because women are not ascertained with neither the equal representation nor with the equity representation in the parliament; Should we consider “patriarchy” or “ruling by men” is a tendency in the country?. As women are taught to be under the tree of the men who take major decisions in almost every sphere of life and society and are encouraged to voice their opinions. The female representation in Indian politics has come quite far over the years but has a very long way to go. One major way to facilitate the increase in representation is through the recognition of the women already present and encouraging more women to get into politics and give them the right opportunity to hold positions of power and have a strong say in the decision-making process.

Fig. 1: Representation of Women in Rajya Sabha.

WOMEN’S REPRESENTATION IN INDIAN PARLIAMENT

The real decision-making process involves a maximum number of male parliamentarians even though the country experiences a minimal increase in every election in the representation of women candidates in politics. Although the majority of the political parties blossoms the papers by including women in the parliament by icing it with the term called “reservation to women”, but the actuality is hidden in regards to equal electoral representation to women in India. The dearth of women’s representation in the parliament has succinctly depleted the value of the nation’s glory which was also highlighted by India’s first woman President, Pratibha Patil, as she said, “There is simply no way our nation can progress if its women population is left behind.” But, this dearth is escaped through a fallacy called “lack of winning capacity of women”. The persuasion of this fallacy was been bereft in the 2019 general elections when 78 women politicians made their way into the Lok Sabha out of the 700 women participating candidates nearly counting to 14% of the total strength. Moreover, 25 women secured a seat in Rajya Sabha out of the total strength of 245, making up to 10% of the total. Although the representation of women kept on decreasing in Rajya Sabha and was noted to be highest in 2014 i.e. 12.7% (See, the table below).

Fig. 2: Representation of Women in 17th Lok Sabha, https://www.prsindia.org/parliamenttrack/vital-stats/profile-newly-elected-17th-lok-sabha

Effectuating the data stated, the inference of the bogus claims of the political parties have been still sustained, as, there are minimal numbers of female candidates in the parliament and the “winning capacity” is vaulted by the patriarchal domination despite the guaranteeing of equality rights by the Constitution of India.

ELECTORAL RIGHTS TO WOMEN IN INDIA

India’s acclaim of perpetrating the equal representation to women in the parliament is under a steel sky; the boundaries of the patriarchy are gripped. Albeit the 73rd amendment to our constitution provided for 33% of reservation to women and allocated the 46% share in the panchayats. But, the amendment is not ascertaining equality to women or women empowerment, rather a ‘jugaad’ of proxies for male members in their families.

The population of women and man are equal in India i.e. close to 50%, despite which the electoral representation of women is near to “diminishing” as the seat allocated to the states is based on the population in The Lok Sabha, howbeit, the representation of women is not even close to the percentage of the female population of the country. When there is complete representation in the Parliament, better policies can be formulated, which would ideally result in better governance. A study by The United Nations University World Institute for Development Economics Research’s suggested that the inclusion of women in the government resulted in the better economic growth of the nation. For a better representation of the women in the parliament, they need to get up and come to the forefront to contest elections and come to a position of power to bring about a change. But such an act would require awareness in the society regarding the importance of female representation and its effects on the overall efficiency in the governance in the country.

VERITY IN REPRESENTATION OF WOMEN IN PARLIAMENT OF INDIA

India experienced less number of women representation i.e. 10.9% in the parliament in the year 2012, accordingly to mitigate the minimal participation of women, the country empowered reservation quotas in 1994. The 73rd and 74th Constitutional Amendment Bill provided for reservation of 33% of seats in local governments, panchayats, and municipalities for women. Following this, in 1996 the Gowda’s government (United Front government) proposed the 81st Constitutional Amendment Bill which provided for one-third or 33% reservation of seats to women in the Lok Sabha and State Assemblies. However, the bill got lapsed and was tabled several times. Recently, in 2008 the 108th Constitutional Amendment Bill or Women Reservation Bill which also provided for 33% reservation to women in Lok Sabha and State Assemblies was tabled and is yet to become a law. The debate of women’s reservation is running since 1996 from the 81st Constitutional Amendment Bill till The Women’s Reservation Bill (108th amendment) in 2008 and yet it remained a ‘bill’ ready to form an ‘act’. The proposed bill has no reasons for its delay, but the hurdle of the social agenda of “democratization” in the country provides a controversy to the women’s reservation bill.

However, the bounds by the concepts of “democratization” was overturned in the 2019 Lok Sabha elections, when the “winning capacity of women” flourished as the winning ratio of women counted to 14% and whereas participating candidates were only 8%. Thence, the inference of winning capacity landed in the favor of women. Thus, the 2019 Lok Sabha Elections is justifiable in descrying reservations to the women in politics.

CONSTITUTIONAL RECOGNITION OF WOMEN IN INDIAN PARLIAMENT

The Constitution of India has guaranteed various equality/equity rights to women and also empowers a duty on every citizen under Article 51A to abolish the practices of “derogatory to the dignity of women”, further, provides for reservation of not less than one-third of the total number of seats in Panchayats and Municipalities to women under Article 243 D(3) and Article 243 T(3), also provides for a reservation to women which is not less than one-third of the total number of officers of chairperson in the Panchayat and Municipalities at each level.

The reality of women’s equal representation was outspoken in 1996 in form of the 81st Constitutional Amendment Bill which provided for one-third reservation of women in the Lok Sabha and State Assemblies but was sabotaged under the Indian Politics Tornado. Thus, empowering a barrier to the electoral representation of women thereby, allowing the feminist theories in actualizing their effect on the ideas of democracy and political equality in regards to women’s representation and not providing equality in the sphere of political efficacies. The women’s voice against equal representation in India was resulted positive as The High Court of Bombay decided in the favour of the reservation of seats for women in the election of Jalgaon Municipality which was provided under the Bombay Boroughs Act 1925. Still, the identification of women in politics remains depressed despite the provisions of gender equality in the Constitution.

Conclusion

The 33% or the one-third reservations of seats to women was been lapsing since 1996 and yet recently has been tabled in 2008 which also landed into a dearth of dirt. This gives rise to the concept of ‘inequalities on established equalities’ as the constitutional framework guarantees equality but the social inclination of the country sweeps the ‘political equality’ as, the implementation of women representation in Indian politics challenges the hidden “verity of democratization” and the bill of women representation in Indian politics succumbs itself under the myth of “verity of democratization”.

As the lapsing of the women’s reservation bill is actuated to the constitutional amendment which is controversial under the supporting and opposing pillars of democracy.

But, the bleak truth has never been catechized, even though the women representation is diminishing, yet, the interminable roles professed by the women politicians are beyond comparison to men’s political efficacious.

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SUSPICION, HOWEVER STRONG, CAN’T TAKE THE PLACE OF PROOF: SC

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It is really remarkable, refreshing, rejuvenating and reasonable to learn that the Supreme Court has just recently on February 12, 2021 in a latest, learned, landmark and laudable judgment titled State of Odisha vs. Banabihari Mohapatra in Special Leave Petition (Cri) No. 1156/2021 has reiterated that suspicion, however strong cannot take the place of proof. This was held so while upholding the acquittal in a murder case. All the Courts must always bear this in mind while dealing with criminal cases especially where the evidentiary value of proof matters most in deciding conviction or acquittal.

To start with, this commendable judgment authored by Justice Indira Banerjee for herself and Justice Hemant Gupta sets the ball rolling by first and foremost observing in para 1 that, “This Special Leave Petition filed by the State of Odisha is against a final judgment and order dated 2nd November, 2020 passed by the High Court of Orissa at Cuttack dismissing an application for leave to appeal being CRLLP No.14 of 2020 filed by the Petitioner State, against a judgment dated 14th January, 2020 passed by the Sessions Judge, Bhadrak in S.T. Case No.182/392 of 2014, acquitting the Respondents from charges under Sections 302/201 read with Section 34 of the Indian Penal Code (IPC).”

To be sure, it is then stated in para 2 that, “Learned Counsel appearing on behalf of the Petitioner State forcefully contended that the High Court committed gross error in dismissing the application for leave to appeal filed by the Petitioner State on the ground of delay of 41 days, even though, there were serious charges against the Accused Respondents, including charges of murder under Section 302 of the IPC.”

Truth be told, it is then pointed out in para 3 that, “It is true that the appeal has, by the impugned judgment and order dated 2nd November 2020, been dismissed on the ground of delay of only 41 days in filing the CRLLP.”

While stating the ostensible, the Bench then acknowledges in para 4 that, “In a criminal case involving the serious offence of murder, the Courts do not ordinarily dismiss an appeal against a judgment and order of the Trial Court, whether of conviction or of acquittal, on the sole ground of some delay. This is to prevent miscarriage of justice.”

Simply put, it is then conceded in para 5 that, “However, in this case the application of the Petitioner State, for leave to appeal against the judgment and order of acquittal of the Respondent Accused, has been rejected on the ground of delay, but after considering the merits of application for leave to appeal.”

Needless to say, the Bench then points out in para 6 that, “We have considered the contentions of the State of Odisha being the petitioner before us. As per an FIR lodged with the police by one Gitanjali Tadu, hereinafter referred to as the “Complainant”, her husband Bijay Kumar Tadu, hereinafter referred to as the “deceased”, had been working in the Home Guard, Chandabali and deputed at Chandabali Police Station.”

For the sake of information, the Bench then reveals in para 7 that, “According to the Complainant, the deceased used to move around with the first accused, Banabihari Mohapatra, who had an electric sales and repairing shop styled “Raja Electricals” at the Ferry Ghat area near the Chandabali bus stand.”

Be it noted, it is then made known in para 8 that, “In the FIR, it is alleged that the first accused came to the residence of the deceased at around 7.30 a.m. on 23rd June, 2014 and told the Complainant that the deceased had been lying motionless and still, not responding to calls. Later his younger son Luja alias Smruti Ranjan Mohapatra being the second Respondent also came and informed the complainant that the deceased was lying motionless.”

While continuing in a similar vein, the Bench then observes in para 9 that, “On hearing this, the Complainant along with her family members went to the Ferry Ghat near the Chandabali Bus Stand and found her husband lying dead inside a room which was locked, with a swollen belly and a deep burn injury on his right foot which was apparently caused by electric shock. The body of the deceased appeared black and blood was oozing out from the mouth and nostril of the deceased.”

It would be pertinent to mention that it is then disclosed in para 10 that, “In the FIR, the complainant has alleged that on 22nd June, 2016, the deceased had left the house to go to the house of a relative. He had been wearing a gold chain on his neck and two gold rings on his fingers, and had been carrying Rs.800 for purchase of a new pair of pants and shirt and Rs.5,000/- for purchase of articles for a marriage.”

It has to be borne in mind that para 11 then brings out that, “On making enquiries the complainant learnt that the deceased had not visited the house of the relative on that day. The complainant has alleged that the Accused No.1 Banabihari Mohapatra, his son Luja alias Smruti Ranjan Mohapatra, being the Accused No.2, and other accomplices committed murder of her husband by applying electric shock to him after administering some poisonous substances to him.”

What also has to be noted is then stated in para 12 that, “The Sessions Judge Bhadrak framed charges against the Accused Respondents Banabihari Mohapatra and Luja @ Smruti Ranjan Mohapatra alleging that, together they had intentionally caused the death of the deceased, thereby committing murder and had caused disappearance of evidence and thus been guilty of offences under Sections 302/201 read with Section 34 of the IPC.”

No doubt, the Bench then rightly mentions in para 13 that, “We have carefully gone through the judgment of the Sessions Judge, Bhadrak, holding that the prosecution had failed to prove the charges against the Accused Respondents or either of them under Section 302, or Section 201 read with Section 34 of the IPC, and acquitting them under Section 235(1) of the Cr.P.C.”

To put things in perspective, the Bench then elaborates in para 14 that, “The prosecution appears to have examined 9 witnesses. There are no eye witnesses to the incident. The deceased had apparently died in a room held by the Accused Respondent No.1. The Accused Respondents did not abscond. The Accused Respondents themselves informed the complainant that the deceased was lying still and motionless, not responding to calls.”

It is worth noting that it is then enunciated in para 15 that, “The post mortem Report of the deceased reveals that the cause of death was electric shock, suffered by the deceased within 24 hours from the time of examination. On post mortem examination, the Doctor found food particles including meat in the stomach of the deceased, and also detected smell of alcohol. The post mortem doctor opined that the deceased was intoxicated with alcohol and the death was either accidental, or homicidal, but not suicidal. There is no conclusive evidence that the death was homicidal.”

No less crucial is what is then mentioned in para 16 that, “The complaint lodged by the complainant is apparently based on suspicion. Since the Accused Respondents had informed the complainant that the deceased was lying still and motionless, not responding to calls and the body of the deceased was found at the premises of the Accused Respondent No.1, the complainant has assumed that the Accused Respondents killed the deceased.”

More damningly, the Bench then observes in para 17 that, “In evidence, the complainant said that the Accused Respondent No.1, Banabihari, had taken a loan of Rs.20,000/- from the deceased which he had not repaid even though the deceased had asked him to repay the amount. Significantly, there is no whisper in the FIR, of any loan taken by the Accused Respondent No.1 from the deceased. The reference to the alleged loan appears to be an afterthought, in an attempt to insinuate a motive for killing the deceased.”

It cannot be denied that it is then conceded in para 18 that, “The mere fact that the deceased was lying dead at a room held by the the Accused Respondent No.1 and that the Accused Respondents had informed the complainant that the deceased had been lying motionless and still and not responding to shouts and calls, does not establish that the Accused Respondents murdered the deceased. At the cost of repetition it is reiterated that the post mortem report suggests that the death could have been accidental.”

Significantly, the Bench then makes it clear in para 19 that, “We have perused the evidence of the nine Prosecution Witnesses, namely, the first Prosecution Witness Dhanjaya Tadu, younger brother of the deceased, the second Prosecution Witness Gitanjali Tadu, wife of the deceased, the third Prosecution Witness, Ajay Sahoo, a Shop Keeper at the locality where dead body of the deceased was found, the fourth Prosecution Witness, Smt. Bijayalaxmi Tadu, sister of the deceased, the fifth Prosecution Witness, Bailochan Bej, a Barber by profession who knew the complainant and the deceased as also the accused persons who resided in the Chandabali Police Station area, the sixth Prosecution Witness, Manmohan Sutar, an auto driver, the seventh Prosecution Witness, Aswini Kumar Nayak, a cultivator residing at Nayahat in the Chandabali Police Station area of Bhadrak, the 8th Prosecution Witness, Dr. Bhisma Parida, being the Doctor who conducted the autopsy/ post mortem examination of the deceased and the ninth Prosecution Witness Smt. Kumari Behera, Sub Inspector of Police, who was the Investigating Officer.”

We need to pay attention here that para 20 then states that, “Of the nine Prosecution Witnesses, three witnesses namely, the third Prosecution Witness, Ajay Sahoo, the fifth Prosecution Witness, Bailochan Bej and the seventh Prosecution Witness, Durga Charan Nayak were declared hostile by the Prosecution.”

It cannot be glossed over that it is then stated in para 21 that, “The third Prosecution Witness said that he had only seen the police shifting the dead body of the deceased and knew nothing more about the case. Nothing has emerged from his cross-examination by the Public Prosecutor. In his cross-examination by the defence, he said there was no electric connection in the house from which the body of the deceased was brought out. He even said that the Accused Respondents did not own any shop dealing with electric appliances. No credence can be given to this witness.”

It also cannot be glossed over that para 22 then reveals that, “The fifth Prosecution Witness, Bailochan Bej, denied knowledge of the case. He said that the police had not examined him, nor recorded any statement made by him. In cross-examination by the prosecution, he only said that he had a saloon at Chandabali Police Station, Bhadrak. He categorically denied having made the statements attributed to him by the police.”

What deserves mentioning here is that it is then stated in para 23 that, “The seventh Prosecution Witness, Durga Charan Nayak only said that he had seen the body of the deceased in the rented place near the Chandabali bus stand with bleeding injury on his right leg and blood oozing from his mouth and nostrils. He said he did not know how the deceased suffered the injury or died. Nothing significant has emerged from his cross-examination by the Public Prosecutor.”

Same is true of para 24 which then states that, “The sixth Prosecution Witness, Manmohan Sutar deposed that he knew the informant, the deceased as also the Accused Respondents. In a nutshell, he only confirmed that the dead body was in the shop of the Accused Respondents in Home Guard uniform. Inquest of the body was conducted in his presence. He identified his signature in the Inquest Report. He also said he had noticed a bleeding injury in the right foot of the deceased and blood oozing from the mouth and nostrils.”

It is extremely relevant to note that para 25 then brings out that, “All the three witnesses related to the deceased, that is the second Prosecution Witness, being the wife of the deceased, the first Prosecution Witness, being the younger brother of the deceased and the fourth Prosecution Witness, being the sister of the deceased have more or less reiterated what has been stated in the FIR with embellishments. There are, however, apparent inconsistencies, inaccuracies and inherent improbabilities in the statements of these witnesses.”

Of course, it is then elucidated in para 26 that, “These three witnesses deposed that they suspected that the accused Respondents had killed the deceased as the deceased was asking the Accused Respondents to repay Rs.20,000/- which the deceased had advanced to the Accused Respondents by way of loan. However, as observed above, there is no whisper of the alleged loan in the FIR lodged by the complainant wife being the second Prosecution Witness.”

Adding more to it, the Bench then puts forth in para 27 that, “That apart, the first and fourth Prosecution Witnesses have admitted in cross-examination that they did not have first hand knowledge of the loan alleged to be advanced by the deceased to the Accused Respondent No.1. The first Prosecution Witness said that the complainant (PW2) had told him that the Accused Respondent No.1 had not repaid loan of Rs.20,000/- to the deceased. The fourth Respondent said she had heard about the loan from her deceased brother. Though she said that the loan was given to the Accused Respondent No.1 at the time of his daughter’s marriage she could not say how long ago the loan was given. She could not even tell the approximate date or year of marriage of the Accused Respondent No.1’s daughter.”

Furthermore, it is then also observed in para 28 that, “From the evidence of the first and the second Prosecution Witnesses it transpires that the deceased had left his house at around 10.00 a.m. on 22nd June 2014, to go to his Aunt’s house in connection with his Aunt’s daughter’s marriage. He was wearing a gold chain and two gold rings and carried Rs.800/- with him for buying a pair of trousers and shirt and Rs.5000/- for articles for the marriage. Enquiries, however, revealed that he had not gone to his Aunt’s house. It is, however, difficult to understand why the deceased should have been wearing his home guard uniform if he were going to visit his Aunt in connection with the marriage of his Aunt’s daughter. There is evidence to show that the deceased was found in his home guard uniform. The relevance of the plan of the deceased to go to his Aunt’s house or his plan to buy clothes etc. is also not clear. This is in no way linked to the incident of death of the deceased. Prosecution has failed to show a link between the proposed visit of the deceased to his Aunt’s house with the guilt, if any, of the Accused Respondents.”

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Quite forthrightly, the Bench then holds in para 29 that, “The evidence of the first Prosecution Witness Dhanjaya Tadu, brother of the deceased, that he had found the motor cycle of the deceased in front of the shop of the accused persons on the evening of the 22nd June 2014, is difficult to accept. He said he had asked the second accused about whereabouts of his brother to which the second accused had expressed ignorance, but on the next day, the second Accused Respondent and his father informed them that his brother was lying senseless. It seems rather unnatural that this witness, who was the brother of the deceased, should have chosen not to make any inquiry either in the police station or in the neighbourhood, even after seeing the motor cycle of the deceased in front of the shop, and after being told his brother was not in the shop. No attempt was made to look for the deceased even though he did not return home all night.”

What’s more, it is then stated in para 30 that, “The eighth Prosecution Witness, Dr. Bhisma Parida, who had at the time of death of the deceased been posted as Medical Officer at CHC Chandabali and had conducted the autopsy/post mortem examination of the deceased at around 1.00 p.m. on 24th June 2014, deposed that the deceased died due to electrical injury, suffered within 24 hours of the autopsy. The stomach of the deceased was full of food particles including meat and there was smell of alcohol. The deceased had been intoxicated with alcohol. The Medical Officer found electrical wounds in the leg which were sufficient to cause death. He opined that the injuries sustained by the deceased might have been due to contact with live electric wire. He opined that the contact was prolonged. The injuries were ante mortem. This witness was of the opinion that the death may have been accidental or homicidal, but not suicidal.”

Crucially, it is then pointed out in para 31 that, “Nothing significant has emerged from the oral evidence of the ninth Prosecution Witness, Smt. Kumari Behera, the Investigating Officer, to establish the guilt of the Accused Respondents. She only stated that the fifth Prosecution Witness had in course of examination stated before her that the first Accused Respondent and the deceased used one of the quarters where they regularly took tiffin and they were both present there on the date of the incident in Court. The fifth Prosecution Witness, however, denied having made any such statement to the Police and remained unshaken in cross-examination by the Public Prosecutor. He only admitted that he had a saloon in the area, but denied knowing the deceased, the Accused Respondents or the informant. The fifth Prosecution Witness said that the Police had neither examined him, nor recorded his statement.”

It is worth mentioning that para 32 then states that, “In her deposition, the Investigating Officer also said that some local persons had stated that the first Accused Respondent, Banabhihari had, out of animosity, killed the deceased by applying electric current. The oral evidence of the Investigating Officer in this regard is totally vague and devoid of particulars. The Investigating Officer (PW-9) had neither named the local persons nor enquired into the source of their information if any. The local persons have not been examined as witnesses.”

No wonder, it is then conceded in para 33 that, “The Prosecution miserably failed to establish the guilt of the Accused Respondents. The Trial Court rightly acquitted the Accused Respondents. There is no infirmity in the judgment of the Trial Court, that calls for interference.”

While citing the relevant case law, it is then observed in para 34 that, “As held by this Court in Sadhu Saran Singh v. State of U.P. reported in 2016 (4) SCC 357, an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal, where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity. In this case, it cannot be said that the reasons given by the High Court to reverse the conviction of the accused are flimsy, untenable or bordering on perverse appreciation of evidence.”

More crucially, the Bench then states in para 35 that, “Before a case against an accused can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of guilt of the accused. There has to be a chain of evidence so complete, as not to leave any reasonable doubt for any conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the Accused.”

While citing another relevant case law, it is then encapsulated in para 36 that, “In Shanti Devi v. State of Rajasthan reported in (2012) 12 SCC 158, this Court held that the principles for conviction of the accused based on circumstantial evidence are:

“10.1. The circumstances from which an inference of guilt is sought to be proved must be cogently or firmly established.

10.2. The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused.

10.3. The circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else.

10.4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.””

No doubt, the Bench then hastens to add in para 37 that, “Keeping the above test in mind, we have no iota of doubt that the Trial Court rightly acquitted the Accused Respondents. There is a strong possibility that the accused, who was as per the opinion of the doctor who performed the autopsy, intoxicated with alcohol, might have accidentally touched a live electrical wire, may be while he was asleep. The impugned judgment of the High Court dismissing the appeal on the ground of delay does not call for interference under Article 136 of the Constitution of India.”

Most crucially, the Bench then makes it clear in no uncertain terms in para 38 that, “It is well settled by a plethora of judicial pronouncement of this Court that suspicion, however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt. This proposition has been reiterated in Sujit Biswas v. State of Assam reported in AIR 2013 SC 3817.”

No less crucial is what is then stated in para 39 that, “In Kali Ram v. State of Himachal Pradesh reported in AIR 1973 SC 2773, this Court observed:-

“Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought is to be established by circumstantial evidence.”

Finally, it is then held in the last para 40 that, “For the reasons discussed above, we find no ground to interfere with the impugned judgment and order of the High Court under Article 136 of the Constitution of India. Consequently, the Special Leave Petition is dismissed. Pending application stands disposed of.”

To conclude, the long and short of this noteworthy judgment is that suspicion, however strong, cannot take the place of proof. This is the basic cardinal principle of criminal jurisprudence also. It has to be strictly implemented by all the courts in India. Para 38 is the most crucial para of this commendable judgment which has already been discussed above and which again repeats what is the bottom-line of this leading case that, “Suspicion, howsoever strong, cannot take the place of proof.” All courts must strictly abide by it! There should be certainly no deviation from this fundamental principle of law as followed in India and many other countries also! No denying or disputing it!

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THE SAGA OF JUDGES’ TRANSFERS AND REFORMS

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The transfer of judges from their parent High Courts is often in news and sometimes it is seen as some sort of punitive element attached to it, if it is not done in line for the elevation to a Chief Justice of the transferred High Court or if a Chief justice of a High Court having larger strength of Judges transferred to a far-flung high court having lesser strength, then judge resigns or, bar associations protest vigorously against such transfers.

The transfer of judges is done as per Article 222 of the Constitution of India.

Article 222 of the Constitution of India reads as follows:

“(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.

(2)…….”

That interestingly this provision of transfer of judges was not there in the Government of India Act, 1935 or even in the early stage of the Constitution Draft prepared by the Drafting Committee of the Constituent Assembly, Article 222 was proposed by the Drafting committee only at the final revision stage in November 1949.

The Chairman of the Drafting Committee, Dr. B.R Ambedkar in his explanation to the Constituent Assembly about the various reasons why it is necessary to introduce this provision, said:

“It might be necessary that one judge may be transferred from one High Court to another to strengthen the High Court elsewhere by importing better talents which may not be locally available. Secondly, it might be desirable to import a new Chief Justice because it might be desirable to have a man unaffected by local politics or local jealousies. We thought, therefore, that the power to transfer should be placed in the hands of the Central Government. “

And further Dr. Ambedkar was fully conscious of the fact that this provision could be abused and sought to provide a safeguard against its abuse:

“We also took into account the fact that this power of transfer of judges from one High Court to another may be abused. A provincial Government might like to transfer a particular judge from its High Court because that Judge had become very inconvenient to the provincial government by the particular attitude that he had taken with regard to certain judicial matters, or that he had made a nuisance of himself by giving decisions which the Provincial Government did not like. We, have taken care that in effecting these transfers no such considerations ought to prevail. Transfers ought to take place only on the ground of convenience of the general administration. Consequently, we have introduced the provision that such transfers shall take place in consultation with the Chief Justice of India who can be trusted to advise the Government in a manner which is not affected by local or personal prejudices.” (Constituent Assembly Debates, Vol. XI, p580.)

ANALYSING THE JUDGES’ TRANSFER SYSTEM

The transfer of Judges in India is not uncommon also at times the transfers do cast aspersions on the independence of judiciary and judge’s probity, and this present system of transfer of judges is often criticized for opaqueness in doing the transfers, which has often lead to criticism from the Bench and as well as from the Bar, In the past, many judges ( to name a few recent one’s Chief Justice Tahilramani of Madras High Court on transfer to Meghalaya High Court & Justice Dharmadhikari of Bombay High Court), has resigned after their transfer orders to the different High Court for myriad reasons.

So, In the present system transfers of judges elevated from the Bar in various High Courts usually don’t happen that frequently or happens generally of senior judges to accommodate the vacancy at Chief Justice level at various High Courts but the opaqueness involved in the transfers has given room to all sort of stories in the court corridor gossips and grapevine communication.

But the meat of the matter here is that these transfers happening at the seniority level for Chief Justice of any High Court or transferring a judge to another High Court abruptly due to some handling of politically sensitive cases by the judge, in a certain manner and fashion which gives an impression that this may be the reason of his transfer and paints it with the element of punitive touch involved in it, as generally perceived by the legal fraternity.

WAY FORWARD

To bring clarity and to end this element of opaqueness in judicial transfers and further take the judicial probity and institutional image to a next pedestal, the fundamental change in the present practice of judicial transfers needs to be adopted, wherein the judges to be transferred right after their elevation from the Bar to the Bench from their Parent High Courts to some other as it will put rest to all the controversies and further bring the judicial probity to a higher level as in present case we see as normally a judge being a former member of the bar having spent almost near to two decades on that side of the table develops a social circle of fellow members and others and at times he though would be impartial in delivering justice but it may give an impression to some of the prejudice or favor, though we see judges recuse themselves from matters were they have their immediate family members involved or former clients but yet that is not possible all the times but to bring the judicial impartiality and preventing the stream of justice from getting polluted, and further living up to the dictum, that justice should not only be done but it must also be seen to be done.

In the Sankal Chand Himatlal Sheth case, 1977, where the Supreme Court said sometimes the transfer of a judge becomes a compulsion because of close nexus he develops with local interests and says it becomes necessary to withdraw a Judge from a circle of favorites and non-favorites and transfers in such cases are pre-eminently in the public interest.

In the past the Bar Council of India (B.C.I) a statutory body that regulates the legal practice in India has proposed to have in place a system wherein judges are transferred from their home state within one month of their elevation to the bench and said that no judge should be allowed to remain a judge in his home state, in the interest of fair-play and justice, which they expected to bring more transparency in the appointment and transfer of judges in the higher judiciary under the collegium system.

If this reform is implemented it will bring transparency and impartiality to the system as immediate relatives of judges and their kith and kin, sons and daughters practicing in the same court, we often see them getting engaged on the best of panels of the government, everybody knows who they are and they try to appease them, which further leads to the impression of prejudices in the dispensation of justice.

To end this perceived arbitrariness and opaqueness in the transfer system a better uniform transfer policy of transfer from their home state within one month of their elevation to the bench in the beginning of the career will be in direction of bringing judicial impartiality in the best interest of all the stakeholders.

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If children are acquainted with Manekshaw’s life, it would inspire them to join Army & serve nation: Madras HC

Motivation can come only by reading the lives of iconic figures. If our children are acquainted with the life of Field Marshal Sam Manekshaw, it would certainly inspire them, says the single-judge Bench of Justice G.R. Swaminathan of Madras High Court.

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It is really magnanimous on the part of the Madras High Court to have held in clear, cogent and convincing terms in a latest, learned, laudable and landmark judgment titled Selvam vs The Revenue Divisional Officer and others in W.P. (MD) No. 2785 of 2021 delivered recently on February 15, 2021 in at least 3 matters remembered the martyrs who laid down their lives for their motherland and added that, “If our children are acquainted with the life of Field Marshal Sam Manekshaw, it would certainly inspire them to join the army and serve the nation.” Very rightly so! The single Judge Bench of Justice GR Swaminathan of Madras High Court was hearing pleas by the petitioners seeking the release of their respective vehicles in their favour alleging that to date, the vehicle in question has not been produced before the jurisdictional court.

Needless to say, the petition has been filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, directing the second respondent herein to release the petitioner’s Tractor Swaraj 855FE being Registration No.TN 76 X 8852 with unregistered Trailer (Chassis No.0059/2012) to the petitioner on the basis of the representation dated 05.02.2021.

To start with, the ball is set rolling by first and foremost pointing out in para 1 that, “Heard the learned counsel on either side. By consent of both parties, this writ petition is taken up for final disposal at the admission stage itself.”

While elaborating on the facts, the Bench then mentions in para 2 that, “The petitioner claims to be the owner of the petition mentioned vehicle. It was seized in connection with the petition mentioned crime number. The petitioner’s counsel states that till date, the vehicle in question has not been produced before the jurisdictional court.”

To be sure, it is then stated in para 3 that, “It has been authoritatively held by the Hon’ble Supreme Court in the decision reported in (2002) 10 SCC 283 (Sunderbhai Ambalal Desai and Others V. State of Gujarat) that whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. That would not only serve any purpose but also result in loss of value.”

To put this in perspective, the Bench then lays down in para 4 that, “Notwithstanding the registration of criminal cases, the vehicle in question is yet to be produced before the jurisdictional court. Therefore, the writ court is definitely possessed of the power to direct release of the vehicle. Neither the petitioner nor the vehicle is involved in any previous case of the same nature. In similar circumstances, this Court has been directing the release of the seized vehicle on remittance of certain sum of money as non refundable payment. I have been directing costs to be paid either to the credit of the mineral foundation trust (central government entity) or a governmental authority.”

Most significantly, what forms the cornerstone of this judgment which captures the eyes and minds of all the esteemed readers is then stated in para 5 that, “Yesterday, ie., 14th February, the nation remembered the martyrs who laid down their lives for the motherland at Pulwama. To add solemnity to the occasion, “Sam Manekshaw’s Beloved Armed Forces” authored by Shri.N.Vijayaraghavan, advocate was released. Major General R.Karthikeyan who saw action in all the four wars while speaking on the occasion lamented that though Officers Training Academy is located in Chennai, hardly one percent of the officers are from the State of Tamil Nadu. Awareness should be spread among the school going students in this regard. Motivation can come only by reading the lives of iconic figures. If our children are acquainted with the life of Field Marshal Sam Manekshaw, it would certainly inspire them to join the army and serve the nation.”

It goes without saying that what Justice GR Swaminathan of Madras High Court has stated in para 5 is of invaluable importance and the State of Tamil Nadu must not just pay heed to what has been said here but also implement strictly what has been stated therein so that more youth from Tamil Nadu join the defence services which will add to the glory of Tamil Nadu and make it among the popular state of the country just like UP, Punjab, Haryana among others! IT has also been rightly added that children must be made to know more about Field Marshal Sam Manekshaw so that more youth are attracted towards joining forces as the present percentage of them joining forces is not very high! This invaluable suggestion certainly deserves to be implemented at the earliest.

While continuing in a similar vein, it is then added in para 6 that, “Hearing me thinking aloud, the learned counsel for the petitioner came forward to remit a sum of Rs.20,000/- in favour of Kalaimagal Publications. The Publisher, Kalaimagal Publication is requested to distribute corresponding number of copies among the schools and institutions that may be suggested by the learned author himself.”

What’s more, it is then added in para 7 that, “I direct release of the petition mentioned vehicle subject to the following conditions :

a) The petitioner shall pay a sum of Rs.20,000/- (Rupees Twenty Thousand only) in favour of the Kalaimagal Publications, in Current Account Number : 4212084759 , IFSC Code : KKBK0008476, KOTAK MAHINDRA BANK, Dr. RADHAKRISHNAN SALAI, MYLAPORE, CHENNAI – 600 004. It will be a non refundable payment. The learned counsel for the petitioner after depositing the said amount shall inform in writing to the said Publication about the deposit.

b) The petitioner shall not alienate or encumber the vehicle in question till the proceedings are completed.

c) The petitioner shall produce all the documents pertaining to the ownership of the seized vehicle. If the petitioner concerned is an agreement holder and the R.C book is with the financier, he or she can be permitted to produce the photocopies of the relevant documents and if the vehicle is a new one, sales invoice can be produced.

d) As and when the respondents call for the vehicle for enquiry, the petitioner has to produce the vehicle in question and shall cooperate with the enquiry to be conducted by the respondents.”

Finally, it is then held in para 8 that, “After completion of the aforesaid formalities, the respondents shall release the petition mentioned vehicle forthwith without any delay. If the undertaking given by the petitioner is breached, the petitioner will not be entitled to interim release of the vehicle in future and the order passed by this Court will stand recalled and the vehicle in question will be taken back to custody and it will be released only after getting orders from this Court on such terms as this Court may deem it fit to impose.”

To conclude, this brief, bold, brilliant and blunt judgment leaves no room of doubt that though Officers Training Academy is located in Chennai, hardly one percent of the officers are from the State of Tamil Nadu. Awareness should be spread among the school going students in this regard. It merits no reiteration that motivation can come only by reading the lives of iconic figures. It is a no-brainer that Justice GR Swaminathan rightly points out that if our children are acquainted with the life of Field Marshal Sam Manekshaw, it would certainly inspire them to join the army and serve the nation. This must be implemented promptly and this will benefit the State of Tamil Nadu and its youth the most. Justice GR Swaminathan has rightly been forthright in expressing his frank views which must be implemented right now!

What forms the cornerstone of the judgement, which captures the eyes and minds of all the esteemed readers, is stated in para 5: “Yesterday, ie., 14th February, the nation remembered the martyrs who laid down their lives for the motherland at Pulwama. To add solemnity to the occasion, ‘Sam Manekshaw’s Beloved Armed Forces’ authored by Shri N. Vijayaraghavan, advocate, was released.”

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SC criticises National Consumer Disputes Redressal Commission for its practice of passing ‘reasons to follow’ orders

The two-judge Bench of the Supreme Court comprising Justice Indu Malhotra and Justice Ajay Rastogi observed in no uncertain terms that in all matters before the NCDRC where reasons are yet to be delivered, it must be ensured that the same are made available to the litigating parties positively within a period of two months.

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It cannot be just glossed over that none other than the Supreme Court has in a latest, learned, laudable and landmark judgment titled Sudipta Chakrobarty & Anr. Vs. Ranaghat S.D. Hospital & Ors. in Civil Appeal No. 9404/2019 delivered as recently as on 15 February 2021 while criticising the practice of ‘reasons to follow’ orders has directed the National Consumer Disputes Redressal Commission (NCDRC) to pass reasoned judgement along with the operative order. The two-judge Bench of Apex Court comprising Justice Indu Malhotra and Justice Ajay Rastogi observed in no uncertain terms that in all matters before NCDRC where reasons are yet to be delivered, it must be ensured that the same are made available to the litigating parties positively within a period of two months. It merits no reiteration that the Apex Court has rightly espoused in this leading case the right of the litigants to know the reasons for the judgment for without the same it can be arbitrary, whimsical and unaccountable not serving the ends of justice which cannot under any circumstances be justified! Very rightly so!

To start with, the ball is set rolling in this commendable, composed and cogent judgment by first and foremost observing in the opening para that, “In the present case, the reasoned order was passed on 20.12.2019 by the National Consumer Disputes Redressal Commission (“National Commission” for short) in C.A. No. 9404 of 2019. Afresh civil appeal was filed before this Court being C.A. No. 6476 of 2020, which has been dismissed vide Order dated 06.3.2020.”

In hindsight, the Bench then recalls in para 2 that, “This Court had vide Order dated 08.1.2020 directed the Registrar of the National Commission to submit a Report stating the number of cases in which reasoned judgments had not been passed, even though the operative order had been pronounced in Court. By the report dated 27.7.2020, we have been informed that as on 20.12.2019, there were 85 such cases in which the operative order had been pronounced, but reasoned judgments were not delivered so far.”

Significantly, the Bench then goes on to add in the next para that, “The fact which has been brought to our notice by the Registrar of the Commission can, in no manner, be countenanced that between the date of operative portion of the order and the reasons are yet to be provided, or the hiatus period is much more than what has been observed to be the maximum time period for even pronouncement of reserved judgments. In State of Punjab & Ors. Vs. Jagdev Singh Talwandi 1984 (1) SCC 596 in para 30, the Constitution Bench of this Court, as far back in 1983, drew the attention of the Courts/Tribunal of the serious difficulties which were caused on account of a practice which was being adopted by the adjudicating authorities including High Courts/Commissions, that of pronouncing the final operative part of the orders without supporting reasons. This was later again discussed by this Court in Anil Rai Vs. State of Bihar 2001(7) SCC 318.”

More significantly, what all the Judges must always remember is what is then stated by the Bench in the next para that, “Undisputedly, the rights of the aggrieved parties are being prejudiced if the reasons are not available to them to avail of the legal remedy of approaching the Court where the reasons can be scrutinized. It indeed amounts to defeating the rights of the party aggrieved to challenge the impugned judgment on merits and even the succeeding party is unable to obtain the fruits of success of the litigation.”

Most significantly and most remarkably, while continuing in a similar vein what really forms the cornerstone of this brilliant, brief, balanced and bold judgment is then stated in the next para along with relevant and landmark judgments and which cannot be just glossed over is that, “The aforementioned principle has been emphatically restated by this Court on several occasions including in Zahira Habibulla M. Sheikh & Ors. Vs. State of Gujarat & Ors. [AIR 2004 SC 3467 paras 80-82]; Mangat Ram Vs. State of Haryana [2008 (7) SCC 96 paras 510]; Ajay Singh & Anr. Etc. Vs. State of Chhattisgarh & Anr. [AIR 2017 SC 310] and more recently in Balaji Baliram Mupade & Anr. Vs. The State of Maharashtra & Ors. (Civil Appeal No. 3564 of 2020 pronounced on 29.10.2020), Oriental Insurance Co. Ltd. Vs. Zaixhu Xie & Ors. (Civil Appeal No. 4022 of 2020 pronounced on 11.12.2020) and SJVNL Vs. M/s CCC HIM JV & Anr. (Civil Appeal No. 494 of 2021 pronounced on 12.02.2021) wherein the delay in delivery of judgments has been observed to be in violation of Article 21 of the Constitution of India and the problems gets aggravated when the operative portion is made available early, and the reasons follow much later, or are not made available for an indefinite period.”

Be it noted, the Bench then goes on to add in the next para that, “In the instant case, the operative order was pronounced on 26.04.2019, and in the reasons disclosed, there is a hiatus period of eight months.” Such a prolonged delay in disclosing the reasons does not inspire confidence among the litigants and is not a good practice which needs to be shunned forthwith! There can be no denying it!

Going forward, the Bench then goes on to add in the next para that, “Let this Order be placed before the President of the National Consumer Disputes Redressal Commission to look into the matter, and take necessary steps so that this practice is discontinued, and the reasoned Judgment is passed alongwith the operative order. We would like to observe that in all matters where reasons are yet to be delivered, it must be ensured that the same are made available to the litigating parties positively within a period of two months.

Finally, it is then held in the concluding paras that, “With these observations, the Appeal stands disposed of. Pending application(s), if any, stand disposed of.”

No doubt, it is certainly beyond the capacity of my pen to express in words how much happy one feels to see that the two Judge Bench of Apex Court comprising of Justice Indu Malhotra and Justice Ajay Rastogi expresses their extremely commendable, composed and cogent judgment so briefly, boldly and brilliantly in just 5 pages thus making the task of the litigants much easier while they go through it without spending too much time just reading it and understanding the intricacies involved by stretching each and every nerve of the brain! It cannot be disputed that the Apex Court has very rightly, remarkably and reasonably held that reasoned judgments must be passed while deprecating the reprehensible practice of ‘reasons to follow’ orders which befuddles the litigants as they don’t comprehend as to what are the reasons for passing such a judgment. This alone explains why the Apex Court has not lost this opportunity to make it amply clear in no uncertain terms that in all matters before NCDRC where reasons are yet to be delivered, it must be ensured that the same are made available to the litigating parties positively within a period of two months.

Unquestionably, it is the bounden duty of the NCDRC to implement it in letter and spirit and ensure that it is not observed in the breach! At the cost of repetition, it has to be reiterated yet again that the Apex Court has rightly, remarkably and reasonably espoused in this leading case the right of the litigants to know the reasons for the judgment for without the same it can be arbitrary, whimsical and unaccountable not serving the ends of justice which cannot under any circumstances be justified! Very rightly so!

It goes without saying that there is no reasons why not just the NCDRC but each and every court not implement the gist of this judgment which shall benefit the litigants immensely as they shall come to know the exact reasons for the judgment which in this modern age of right to information must be made available also to the litigants along with the judgment as early as possible.

This alone explains why the Apex Court in this case has set a time limit of two months for the NCDRC also which must be strictly implemented also! We need to understand that where reasons are not disclosed in the judgment, it serves as the biggest handicap of the aggrieved party to challenge the impugned judgment in time on merits and not just this even the succeeding party too suffers as he/she is unable to obtain the fruits of the success of the litigation as has been observed by the Apex Court in this noteworthy judgment also as has been stated above in detail!

On a concluding note, it must be said that we have also discussed the relevant judgments also pertaining to this as stated above! There is no reason why this extremely learned, laudable and landmark judgment is not implemented in totality not just by the NCDRC but by each and every Court in India! There can certainly be just no denying or disputing it! Very rightly so!

More significantly, what all the judges must always remember is what is then stated by the bench in the next para: “Undisputedly, the rights of the aggrieved parties are being prejudiced if the reasons are not available to them to avail of the legal remedy of approaching the Court where the reasons can be scrutinised. It indeed amounts to defeating the rights of the party aggrieved to challenge the impugned judgment on merits and even the succeeding party is unable to obtain the fruits of success of the litigation.”

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