Over the years, digitalisation and technology have revolutionised our world and daily lives. Emerging technologies such as internet of things, quantum computing, augmented reality, artificial intelligence, big data, machine learning, blockchain etc have a marked influence on our economic as well as social activities and are changing the way people connect, entertain, socialise, create, sell, shop and work. With technological advancement, the pace at which businesses have proliferated their extraterritorial presence without having any tangible footprint, is astonishing. India is among the top three global economies in terms of digital consumer base, with 624 million active internet users. Taxation systems in major developing economies, including India, were drafted taking into consideration, the traditional way of doing business, ie a brick-and-mortar model. The conventional residence-based and source-based concepts of taxation have become outmoded over time and incapable of effectively taxing the digital economy largely due to its distinctive amorphous nature. This has resulted in either double taxation or non-taxation of revenues and has become a key base erosion and profit shifting concern across the globe. The OECD and G-20 countries have been working determinedly under the inclusive framework on BEPS to address the need for tax reforms. The OECD is spearheading a project to develop a consensus-based solution to address this crisis through revised profit allocation and nexus rules. India has been at the fore of adopting changes in international tax systems to keep pace with progression in the digital world. India was among the first to implement Equalisation Levy in 2016 on online advertisements related services and to substantially expanded the scope of this levy in 2020 to cover e-commerce supply and services. Equalisation Levy is designed to operate outside the framework of the existing system of tax treaties and transactions covered thereunder are not subject to income tax.
In the year 2018, the domestic tax laws in India were amended to widen the scope of ‘business connection’ with the introduction of Significant Economic Presence (SEP). The resulting income of a non-resident attributable to SEP in India were to be considered taxable. However, owing to delay in accomplishing a global consensus, SEP provisions were deferred till April 1, 2021 and the enacting thresholds were not prescribed. Pursuant to the amendments in Finance Act 2020 and the recent notification prescribing these thresholds, SEP is now defined to mean any transaction in respect of any goods, services or property carried out by a non-resident with any person in India, including the provision of download of data or software in India, subject to payments threshold of INR 20 million or systematic and continuous soliciting of business activities or engaging in interaction with 0.3 million or more number of users in India. Moreover, transactions and activities may constitute SEP in India, regardless of whether a non-resident has a residence or place of business in India, or renders services in India, or agreement for such transactions or activities is entered in India. This all-embracing definition is not restricted to digital transactions and could also impact typical buy-sell or service transactions between non-resident and an Indian resident. Far from the original intent, SEP provisions may also embrace offshore sale of goods and provisions of services outside India, unless clarified otherwise. Necessary clarifications regarding definition of key terms such as goods, property, systematic and continuous soliciting etc are awaited too from the Regulators.
Although SEP related provisions are applicable from April 1, 2021, it may only be a ‘paper tiger’ as non-residents from tax treaty network countries are shielded under the narrower definition of Permanent Establishment (PE) in respective tax treaties. India has an operational tax treaty alliance with majority of countries housing businesses that derive income from India. Unless these tax treaties are renegotiated through bilateral or multilateral instrument and corresponding modifications are made to include provisions similar to SEP in those tax treaties, SEP provisions under domestic tax laws seem innocuous. Irrespective of this armour, test of beneficial ownership could still be a relevant aspect to evaluate, especially in cases of multi-tier structures, where a non-resident could invoke tax treaty protection to duck SEP test. On other side of the fence, SEP provisions would set in motion for all businesses coming from countries such as the Bahamas, Bermuda, Cayman Islands, etc, with whom India does not have a tax treaty yet.
A conjoint assessment of net basis taxation under SEP and gross basis taxation under Equalisation Levy would become critical for digital businesses. Equalisation Levy would become an elective regime once a non-resident e-commerce operator accedes to an Indian PE, in the form of SEP. In a scenario where a non-resident constitutes SEP in India, only income attributable to such transaction or activities would be taxable in India. While a public consultation document on profit attribution for SEP was issued by the Central Board of Direct Taxes, no rules have been notified so far. It, therefore, becomes apposite to assess the applicability of Rule 10 in such a scenario. Constitution of SEP would unfold various compliance obligations for both, payers and non-residents. Payers would be required to review withholding tax position as any shortfall could trigger expense disallowance, interest, and penal consequences. Non-residents, on the other hand, could be required to file income tax return, tax audit and transfer pricing reports in India, wherever applicable. Notably, non-compliance related to transactions carried out between April 1 and May 2 of 2021 (ie before threshold notification date) may possibly be defended by payers on the tenet of impossibility of performance.
Though the payment threshold for Equalisation Levy and SEP are calibrated at same level, it is quite low given the size of Indian economy and growing consumer base. Even after the Apex Court settled the highly debated issue of taxation of software, taxpayers cannot breathe a sigh of relief as the ruling was based entirely on the premise of no PE in India and software sale as well as services transactions could now well be covered under the new SEP regime. The evolving ecosystem of taxation in India would require non-residents to tread a tightrope as dynamic provisions such as SEP are plugging-in loopholes that may have existed under domestic tax laws for a while. What lies ahead is the hope of reaching a quick global consensus that could provide a fair and just system of taxation, followed by modification of tax treaties to incorporate the suggested amendments.
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Accused can’t be convicted for charge which is not framed by trial court, says Karnataka HC
It is worth mentioning that the Bench then observes in para 23 that, ‘Having heard the respective counsel and also on perusal of the material available before the court, the trial court imposed a fine of Rs 4,000 each and accordingly, accused No.1 deposited the fine amount and whether the accused No.2, the revision petitioner herein, has deposited the amount or not is not forthcoming. Admittedly, this petitioner has also not challenged the same in any appeal before the Appellate Court i.e., the sentence of fine imposed by the trial court’.
While fully, firmly and finally espousing the legal right of the accused, the Karnataka High Court in an extremely learned, laudable, landmark and latest judgment titled M Ajithkumar vs The State By Food Inspector, Koppa in Criminal Revision Petition No. 1527/2016 and cited in 2022 LiveLaw (Kar) 234 that was pronounced finally on June 24, 2022 has set aside the conviction that was handed down under the Prevention of Food Adulteration Act by the Trial Court for a charge which it did not frame against the accused and remanded the matter back to be considered afresh. A Single Judge Bench of Justice HP Sandesh while allowing the petition filed by one M Ajithkumar said that, “There is a glaring error on the part of the Trial Court since charge has been framed for Section 7(1) of the Act and conviction and sentence is passed for the violation of Section 7(2) of the Act. The Appellate Court also failed to take note of this aspect into consideration and concentrated mainly on the minimum sentence.” We thus see that the Karnataka High Court very rightly sets aside the conviction and sentence order passed by the court below.
To start with, this refreshing, remarkable, robust and rational judgment authored by a Single Judge Bench of Hon’ble Mr Justice HP Sandesh sets the ball rolling by first and foremost putting forth in para 1 that, “This criminal revision petition is filed under Section 397 of the Code of Criminal Procedure, 1973 praying this Court to set aside the judgment passed by the Civil Judge and JMFC, Koppa dated 24.04.2013 in C.C.No.451/2008 and also set aside the judgment dated 09.11.2016 passed in Crl.A.No.233/2013 by the Principal District and Sessions Judge, Chikkamagaluru and acquit the revision petitioner for the offences alleged against him and grant such other relief as deems fit in the circumstances of the case.”
While elaborating on prosecution case, the Bench then states in para 2 that, “The factual matrix of the case of the prosecution is that the Food Inspector, Koppa has visited the shop belonging to the accused No.1-M. Umar on 16.02.2008 situate at Koppa and inspected the food articles and examined 20 packs each containing 200 miligrams of sungift refined cooking oil and found that there is adulteration in the said oil and noticed that the said oil was supplied by the revision petitioner and filed the complaint against the accused persons stating that they have violated Section 7(2) of the Prevention of Food Adulteration Act, 1954 (‘the Act’ for short) and thereby committed the offence punishable under Section 16(a)(i) of the said Act.”
Needless to say, the Bench then specifies in para 3 that, “Based on the complaint, cognizance was taken against this revision petitioner and accused No.1 and both of them not pleaded guilty. Hence, the prosecution, in order to prove their case, examined P.Ws.1 to 4 and relied upon the documents Exs.P1 to P13(a) and two memo of objects were marked as M.Os.1 and 2 containing sungift refined cooking oil.”
To put things in perspective, the Bench then envisages in para 4 that, “The Trial Court, after considering both oral and documentary evidence placed on record, convicted both the accused and imposed sentence of fine of Rs.4,000/- each, failing which they are liable to serve the sentence of simple imprisonment for seven months. The accused No.1 paid the fine amount and the prosecution also challenged the inadequate sentence and filed appeal in Criminal Appeal No.233/2013 and the First Appellate Court reversed the judgment of the Trial Court and imposed sentence of six months vide judgment dated 09.11.2016. Hence, the revision petitioner-accused No.2 has filed this revision petition.”
As we see, the Bench then stipulates in para 22 that, “Having heard the respective counsel and also on perusal of the material on record, the points that would arise for consideration of this Court are:
(i) Whether the revision petitioner has made out a ground to exercise the revisional jurisdiction to set aside the orders passed by the Trial Court as well as the First Appellate Court?
(ii) What order?”
It is worth mentioning that the Bench then observes in para 23 that, “Having heard the respective counsel and also on perusal of the material available before the Court, the Trial Court imposed fine of Rs.4,000/- each and accordingly, accused No.1 deposited the fine amount and whether the accused No.2, the revision petitioner herein has deposited the amount or not is not forthcoming. Admittedly, this petitioner has also not challenged the same in any appeal before the Appellate Court i.e., the sentence of fine imposed by the Trial Court. However, the State has filed an appeal before the First Appellate Court on the ground of inadequate sentence. Hence, the Appellate Court modified the sentence of simple imprisonment for a period of six months, instead of fine of Rs.4,000/-.”
No doubt, the Bench then rightly points out in para 24 that, “The first and the foremost contention of the learned counsel for the revision petitioner before this Court is that there was no adulteration and it was only a misbranding. The counsel also relied upon the document Ex.P10 i.e., the report received from the Divisional Public Analyst cum Regional Assistant Chemical Examiner, Mysuru Division, N.P.C. Hospital Compound, Nazarbad, Mysuru, wherein it is opined that the sample sent for analyst is not adulterated but, it is misbranded wide label-3(e) and the said report is given on 6th day of March, 2008. On perusal of the records of the Trial Court, it is seen that the charge was framed on 18th August, 2011 subsequent to receipt of the report. On perusal of the charges, it is seen that the trial Judge has framed the charge for the offence under Section 7 of the Act, particularly, Section 7(1) in respect of adulteration of food and Section 7(2) is in respect of misbranding food. The charge has been framed for the offence under Section 7(1) i.e., adulteration of food and that is not the case of the prosecution and the case of the prosecution is misbranding.”
Be it noted, the Bench then most commendably enunciates in para 25 that, “On perusal of the complaint which is dated 8th July 2008 particularly, page No.2 in the bottom, it is stated that the information given in the packet is erroneous and also referred that the report of the analyst is misbranded and categorically mentioned in page No.3 that there is violation of Section 7(2) of the Act, punishable under Section 16(a)(i) of the Act. However, the allegation against this petitioner is that he has not issued cash bill in terms of Section 14 of the Act and he had distributed the oil packet, wherein also specifically mentioned that the petitioner has violated Section 7(2) of the Act, punishable under Section 16(a)(i) of the Act. But, the trial Judge has framed the charge for the offence under Section 7(1) of the Act and not for the offence under Section 7(2) of the Act. It is also important to note that the complaint dated 8th day of July, 2008 is subsequent to the receipt of the report from the analyst which is marked as Ex.P10 which is dated 6th day of March, 2008. Hence, it is clear that the report is received on 6th day of March, 2008 and complaint is filed in the month of July i.e., 8th day of July, 2008 and inspite of it, though allegation is in respect of Section 7(2) of the Act, the Trial Court framed the charge for the offence under Section 7(1) of the Act. Hence, very framing of the charge itself is erroneous.”
Most forthrightly, the Bench then mandates in para 26 that, “It has to be noted that the trial Judge, even while passing the judgment invoked Section 7(2) of the Act punishable under Section 16(a)(i) of the Act and not altered the Section from 7(1) to 7(2) of the Act. It is also rightly pointed by the learned counsel for the revision petitioner that no notice was given to invoke Section 7(2) of the Act and though the same is noticed by the Trial Court, the charge has been framed for violation of Section 7(1) of the Act and punishment was provided for the violation of Section 7(2) of the Act. Hence, there is a glaring error on the part of the Trial Court since charge has been framed for Section 7(1) of the Act and conviction and sentence is passed for the violation of Section 7(2) of the Act. The Appellate Court also failed to take note of this aspect into consideration and concentrated mainly on the minimum sentence. Hence, the very judgment of the Trial Court as well as the First Appellate Court requires to be set aside on the ground that the charge has been framed for violation of Section 7(1) of the Act and conviction and sentence has been passed for violation of Section 7(2) of the Act.”
Most significantly, the Bench then holds in para 27 that, “The other contentions of the learned counsel for the revision petitioner are that, no authorization to file any complaint and the delegatee also cannot delegate the powers. He also would contend that no notification was produced regarding appointment of Food Inspector and the independent witnesses have not been examined. It is also his contention that non-furnishing of report of Public Analyst and misbranding of label does not require any opinion from the Public Analyst. When charge has not been properly framed and conviction and sentence is passed for in respect of violation under Section 7(2) of the Act, it is appropriate to set aside the judgments of both the Trial Court as well as the First Appellate Court by keeping open the other contentions of the learned counsel for the revision petitioner and remand the matter to the Trial Court for framing appropriate charges and consider the matter afresh. If need arises, the Trial Court shall also permit the prosecution as well as the revision petitioner to adduce evidence before the Trial Court since, proper charge has to be framed and an opportunity has to be given to the revision petitioner to meet the case of the prosecution and unless the charge is specific, meeting the case of the prosecution by the defence is also very difficult. Hence, the judgment and sentence passed by the Trial Court as well as the First Appellate Court is not legally sustainable in the eye of law and it requires fresh consideration. Accordingly, I answer point No.(i) as ‘affirmative’.”
Finally and far most significantly, the Bench then concludes by holding in para 28 that, “In view of the discussions made above, I pass the following:
(i) The criminal revision petition is allowed.
(ii) The judgment passed by the Civil Judge and JMFC, Koppa dated 24.04.2013 in C.C.No.451/2008 and the judgment passed by the Principal District and Sessions Judge, Chikkamagaluru dated 09.11.2016 in Crl.A.No.233/2013 are set aside. The matter is remanded to the Trial Court to consider the matter afresh in accordance with law within a period of six months, since the matter is of the year 2008.
(iii) The revision petitioner and the prosecution are directed to appear before the Trial Court on 25th July, 2022 without expecting any notice.
(iv) The respective parties are directed to assist the Trial Court in disposal of the case within the stipulated time.
(v) The Registry is directed to transmit the records forthwith to the concerned Court.”
In a nutshell, the Karnataka High Court has thus not left even a straw of doubt to make it indubitably clear that the accused can’t be convicted for a charge which is not framed by the Trial Court. It merits no reiteration that all the Courts must definitely pay heed to what the Karnataka High Court has held in this leading case. Of course, we thus see that the matter has been very rightly remanded to the Trial Court to consider the matter afresh in accordance with the law within a period of six months, since the matter is of the year 2008 as mentioned above. No denying it.
Be it noted, the Bench then most commendably enunciates in para 25 that, “On perusal of the complaint which is dated 8th July 2008 particularly, page No.2 in the bottom, it is stated that the information given in the packet is erroneous and also referred that the report of the analyst is misbranded and categorically mentioned in page No.3 that there is violation of Section 7(2) of the Act, punishable under Section 16(a)(i) of the Act. However, the allegation against this petitioner is that he has not issued cash bill in terms of Section 14 of the Act and he had distributed the oil packet, wherein also specifically mentioned that the petitioner has violated Section 7(2) of the Act, punishable under Section 16(a)(i) of the Act”.
Friendly relations not consent to establish physical relations: Bombay High Court
The complainant herself has narrated the repeated incidents when they indulged in sex, on an assurance by the applicant that he is going to marry her. The complainant conceived and was found to be carrying six weeks’ pregnancy. She immediately contacted the applicant, but he refused to take up any responsibility and, on the other hand, blamed her for her ‘bad character’ and alleged that she is in relationship with some other person. Repeatedly, she kept requesting the applicant to marry her, but he refused.
While clearly drawing the red lines most distinguishably for boys in cases of establishing physical relations with a girl, the Bombay High Court in an extremely commendable, cogent, courageous and composed judgment titled Ashish Ashok Chakor vs State of Maharashtra in Anticipatory Bail Application No. 1676 of 2022 as recently as on June 24, 2022 in exercise of its criminal appellate jurisdiction minced just no words to hold that a girl merely being friendly with a boy doesn’t allow him to misconstrue it as her consent to establish a sexual relationship with her and rejected the anticipatory bail application of a man accused of impregnating a woman under the pretext of marriage. It must be mentioned here that the Single Judge Bench of Hon’ble Smt Justice Bharati Dangre rejected the pre-arrest bail that was filed by one Ashish Chakor who was accused of raping a woman under the pretext of marriage and booked him under Sections 376(2)(n), 376(2)(h) and 417 of the IPC. No doubt, this extremely laudable judgment by the Bombay High Court should serve as a very loud and strong message to all males that they cannot hide under the guise of friendly relations to develop physical relations with any female and if they dare to do so then they must be prepared to face the horrendous consequences by finding themselves landing in jail for a good number of precious years thus spoiling their whole life!
To start with, this recent, refreshing, robust, remarkable and rational judgment authored by a single Judge Bench of the Bombay High Court comprising of Hon’ble Smt Justice Bharati Dangre sets the ball rolling by first and foremost putting forth in para 1 that, “The applicant is apprehending his arrest in C.R.No.462 of 2022 lodged with M.H.B. Colony Police Station for the offences punishable under Sections 376(2)(n), 376(2)(h) and 417 of the IPC. The complainant is a girl aged 22 years, who was briefly acquainted with the present applicant. Somewhere in the year 2019, when she alongwith her friend had visited a residential premises of a third friend, the applicant is alleged to have committed forcible sexual intercourse with her. When she opposed, he expressed that he likes her and in any case, he is going to marry her. Thereafter, on multiple occasions, the act was repeated. The complainant herself has narrated the repeated incidents when they indulged into sex, on an assurance by the applicant that he is going to marry her. The complainant conceived and was found to be carrying six weeks’ pregnancy. She immediately contacted the applicant, but he refused to take up any responsibility and on the other hand, attributed her a bad character and alleged that she is in relationship with some other person. Repeatedly she kept requesting the applicant to marry her, but he refused.”
On the face of it, this prima facie reflects that the men himself is at fault and he had no business to indulge in physical relationship with her. Not just this, he even promised to marry her but later retracted. This clearly demonstrates that he is culpable and cannot be exonerated for what he has done so very wrongly!
Truth be told, the Bench then mentions in para 2 that, “Upon such a complaint, referring to the incidents occurring between 17/05/2019 to 27/04/2022, the complaint has been lodged. As far as the last incident is concerned, even on 27/04/2022, the complainant states that he had forcibly committed sexual intercourse with her.”
To be sure, the Bench then brings out in para 3 that, “Reading of the complaint would reveal that the girl, who is major, developed a liking for the applicant, but her version as far as the sexual relationship is concerned, is that she permitted it, since the applicant gave a promise of marriage. The sexual relationship was established on multiple occasions on the promise of marriage. However, when the girl conceived, the applicant attributed infidelity, but once again committed forcible sexual intercourse with her on the last date as mentioned in the complaint.”
Finally and far most significantly, the Bench then minces just no words to hold so very rightly in the last para 4 that, “Merely sharing friendly relationship with a girl do not permit a boy to take her for granted and construe it as her consent to establish physical relationship. In today’s society when a man and woman are working together, it is quite possible that proximity may develop between them, being either mentally compatible or confiding in each other as friends, ignoring the gender, since friendship is not gender based. However, this friendship with the person of fairer sex, does not confer a licence upon a man to force himself upon her, when she specifically refuse copulation. Every woman expects ‘Respect’ in a relationship, be it in the nature of friendship based on mutual affection. Here is the applicant, who is accused of maintaining sexual relationship on the pretext of marriage, but when the complainant conceived, he walked out alleging that pregnancy carried by her is on account of her relationship with other persons. The accusations faced by the applicant definitely require a thorough investigation to ascertain the version of the prosecutrix that she was forced to give her consent for sex. The application is rejected.”
In conclusion, the Single Judge Bench of the Bombay High Court comprising of Hon’ble Smt Justice Bharati Dangre has been forthright enough to hold that this friendship with the person of fairer sex, does not confer a licence upon a man to force himself upon her, when she specifically refuse copulation. It is also very rightly held that every woman expects ‘Respect’ in a relationship, be it in the nature of friendship based on mutual affection. We thus see that the anticipatory bail application of the men is thus rightly rejected as he took undue advantage of friendly relations to establish physical relations and gave false assurances of marriage which cannot be condoned. So it merits no reiteration that he had to face the consequences and the same was accordingly ensured by the Bombay High Court in this leading case so very rightly! No denying it!
It must be mentioned here that the Single Judge Bench of Hon’ble Smt Justice Bharati Dangre rejected the pre-arrest bail that was filed by one Ashish Chakor who was accused of raping a woman under the pretext of marriage and booked him under Sections 376(2)(n), 376(2)(h) and 417 of the IPC. No doubt, this extremely laudable judgment by the Bombay High Court should serve as a very loud and strong message to all males that they cannot hide under the guise of friendly relations to develop physical relations with any female and if they dare to do so, then they must be prepared to face the horrendous consequences by finding themselves landing in jail for a good number of precious years, thus spoiling their whole life.
Preventive Detention Can’t Be Invoked For Law And Order Situation: SC
While underscoring that the preventive detention law “strikes hard on the freedom and liberty of an individual, and cannot be exercised in a routine manner”, the Supreme Court in an extremely laudable, learned, landmark and latest judgment titled Shaik Nazneen vs The State of Telangana & Ors in Criminal Appeal No. 908 of 2022 (@ SLP (Crl.) No. 4260 of 2022) and cited in 2022 LiveLaw (SC) 559 has observed that “the powers to be exercised under this law are exceptional powers which have been given to the government for its exercise in an exceptional situation”. It must be noted that the Apex Court has once again clearly highlighted the distinction that while a law and order situation can be dealt with under the ordinary law of land, it is only when there is a public order situation that the invocation of the powers under the law of preventive detention is justified, absent which the preventive detention would be bad and would be in violation of Articles 21 and 22 of the Constitution as it encroaches upon the liberty and freedom of an individual. The Apex Court Bench of Justice CT Ravikumar and Justice Sudhanshu Dhulia were hearing an appeal against the March judgment of the Telangana High Court by which the Habeas Corpus Writ Petition of the petitioner-wife challenging the order of prevention of detention of her husband had been dismissed.
To start with, this brief, brilliant, bold and balanced judgment authored by Apex Court Bench comprising of Justice CT Ravikumar and Justice Sudhanshu Dhulia sets the ball rolling by first and foremost putting forth in para 1 that, “This appeal challenges the order dated 25.03.2022 passed by the High Court of Judicature for the State of Telangana at Hyderabad by which the Habeas Corpus Writ Petition bearing No. 35519 of 2021 of the petitioner-wife challenging the order of prevention of detention of her husband has been dismissed.”
To put things in perspective, the Bench then envisages in para 2 that, “The brief facts of the case are that the prevention detention order was passed against the husband of the petitioner on 28th October, 2021 by the Commissioner of Police, Rachakonda Commissionerate on grounds that the detenu was involved in gold chain snatching offences, where victims were mostly women. He has been doing this since the year 2020 in the States of Andhra Pradesh and Telangana. He was involved in as many as 36 gold chain snatching offences. Earlier, the detenu, along with three others, had formed a gang to commit these offences in order to make quick money. It was alleged that they had come to Hyderabad in a car bearing No. AP 39 TU 5033 and took shelter in a lodge. Their modus operandi was to first conduct recce of some residential areas and after selecting a suitable residential area, lift two wheelers and motor cycles which were then used in the chain snatching offences. Although according to the Authority the detenu was involved in more than 30 cases but only 4 cases of chain snatching were considered as ground for detention, as the other cases were reported to be behind the proximity period and out of the jurisdiction of Commissionerate. The four cases on which reliance has been placed are as under:
“(1) Crime No. 355 of 2021 for the offences under Sections 392, 411 read with 34 IPC of Medipally Police Station.
(2) Crime No. 358 of 2021 for the offences under Sections 392, 411 read with 34 IPC of Medipally Police Station.
(3) Crime No. 532 of 2021 for the offence under Section 392 read with 34 IPC of Medipally Police Station.
(4) Crime No. 533 of 2021 for the offences under Sections 392, 411 read with 34 IPC of Medipally Police Station.””
Briefly stated, the Bench then specifies in para 3 stating that, “In short, against the detenu the F.I.Rs primarily an offence of ‘robbery’ under section 392 of the Indian Penal Code. The detention order also says that the crimes were committed in broad day light and have thus resulted in creation of fear and panic in the minds of the general public, especially women and hence, the Government had to interfere in order to “maintain public order”.”
It must be noted that the Bench then discloses in para 4 that, “The said four cases were allegedly committed by the detenu within a span of two months between 06.05.2021 to 26.07.2021 and were committed within the jurisdiction of one police station i.e., Medipalli police station. In all these cases, the detenu had moved bail applications before the concerned Metropolitan Magistrate and was granted bail under Section 167 (2) Cr.P.C, which is commonly known as ‘default bail’ and the detenu was released on 16.10.2021. The detention order was later passed on 28.10.2021, which was subsequently confirmed by the Advisory Council on 13.01.2022, i.e., within the stipulated time. The detenu is under detention since 28.10.2021.”
While referring to the relevant law in this regard, the Bench then lays bare in para 5 stating that, “The Preventive Detention Law, under which the powers have been exercised is a long winded statute called the “Telangana Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986”(hereinafter referred to as `the Act’). Powers have been exercised under Section 3 of the Act which reads as under:
“3. (1) The Government may, if satisfied with respect to any boot-legger, dacoit, drugoffender, goonda, immoral traffic offender [Land-Grabber, Spurious Seed Offender, Insecticide Offender, Fertilizer Offender, Food Adulteration Offender, Fake Document Offender, Scheduled Commodities Offender, Forest Offender, Gaming Offender, Sexual Offender, Explosive Substances Offender, Arms Offender, Cyber Crime Offender and White Collar or Financial Offender] that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order it is necessary so to do, make an order directing that such person be detained.
(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the Government are satisfied that it is necessary so to do, they may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said subsection:
Provided that the period specified in the order made by the Government under this sub-section shall not in the first instance, exceed three months, but the Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.
(3) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the mean time, it has been approved by the Government.””
To be sure, the Bench then points out in para 6 that, “The powers have been exercised in the present case under section 3(1) of the Act. Under the aforesaid provision, inter alia, a detention order can be passed against a “goonda”. A “goonda” has been defined under Section 2 (g) of the Act, which reads as under:
“2. g) “goonda” means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code.”
It deserves mentioning that the Bench then notes in para 7 that, “Since the allegation is that the detenu is involved in four cases of chain snatching i.e., robbery, which comes under offences given under Chapter XVII of the Indian Penal Code, he has been declared a habitual offender and thus a “goonda” vide the detention order dated 28.10.2021.”
As we see, the Bench then observes in para 8 that, “Now under section 3(1) of the Act, detention order can be passed, inter alia, against a “goonda”, “with a view to prevent him from acting in any manner prejudicial to the maintenance of public order…”. Due to the detenu’s alleged involvement in four criminal cases relating to “robbery” he has been declared a “goonda” and it is said that this is acting in a manner which is “prejudicial to the maintenance of public order”.”
Be it noted, the Bench then mandates in para 9 that, “A bare reading of the aforesaid provision shows that the “maintenance of public order” has a crucial bearing here and unless the Government is justified in holding that the act of the detenu is prejudicial to the maintenance of public order, the preventive detention would be bad and would be in violation of Articles 21 and 22 of the Constitution of India as it encroaches upon the liberty and freedom of an individual.”
Of course, the Bench then mentions in para 10 that, “The detention order was challenged by the wife of the detenu in a Habeas Corpus petition before the Division Bench of the Telangana High Court. The ground taken by the petitioner before the High Court was that reliance has been taken by the Authority of four cases of chain snatching, as already mentioned above. The admitted position is that in all these four cases the detenu has been released on bail by the Magistrate. Moreover, in any case, the nature of crime as alleged against the petitioner can at best be said to be a law and order situation and not the public order situation, which would have justified invoking the powers under the Preventive Detention Law. This, however did not find favour with the Division Bench of the High Court, which dismissed the petition, upholding the validity of the detention order.”
Simply put, the Bench then specifies in para 11 that, “Shri Rahul Gupta, learned counsel for the Petitioner before this Court has confined his arguments on two aspects. Firstly, the detenu is allegedly involved in four criminal cases where he has been granted bail, and that too has been granted as the prosecution, in all four cases, failed to file its charge sheet in time. Now they cannot resort to the law of Preventive Detention. Secondly, even assuming the allegations of the prosecution to be correct, then too it only reflects a “law and order” problem and not a “public order” problem as mentioned under the Act.”
Quite forthrightly, the Bench then candidly concedes in para 13 that, “The reason why bail was granted in all four cases, however, has not been given. Bail was granted in all the four cases due to the inability of the prosecution, which did not complete its investigation in time. The bail had to be given as the charge sheet was not filed by the police in all the cases within the stipulated period of 60 days. The fault thus lies with the prosecution.”
While setting the record straight, the Bench then also pointed out aptly in para 14 that, “The other reason assigned is that the Trial Court while granting bail did not lay down any conditions. This is again a wrong presentation of the case. Conditions were not imposed simply as it was a default bail, and in bail of this nature conditions are not liable to be imposed.”
Most significantly, the Bench then minces no words to hold in para 15 that, “Having heard the learned counsel for the petitioner and learned counsel for the State of Telangana, we are of the considered view that in the present case invocation of the Preventive Detention Law against the petitioner was not justified. The powers to be exercised under the Preventive Detention Law are exceptional powers which have been given to the Government for its exercise in an exceptional situation as it strikes hard on the freedom and liberty of an individual, and thus cannot be exercised in a routine manner. The distinction between law and order situation and a public order situation has been dealt with by the Supreme Court in a catena of decisions. In the case of Ram Manohar Lohia Vs. State of Bihar, it has been held as under:
51. “We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression “public order” take in every kind of disorders or only some of them? The answer to this serves to distinguish “public order” from “law and order” because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1) (b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.
52. It will thus appear that just as “public order” in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting “security of State”, “law and order” also comprehends disorders of less gravity than those affecting “public order”. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression “maintenance of law and order” the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules.””
While referring to recent case laws, the Bench then states in para 16 that, “In two recent decisions [Banka Sneha Sheela Vs. State of Telangana (Crl.A.No.733/2021) ; Mallada K. Sri Ram Vs. State of Telangana (Crl.A. No. 561/2021)], this Court had set aside the detention orders which were passed, under the same Act, i.e., the present Telangana Act, primarily relying upon the decision in Dr. Ram Manohar Lohia case (supra) and holding that the detention orders were not justified as it was dealing with a law and order situation and not a public order situation.”
It cannot be glossed over that the Bench then holds in para 17 that, “In any case, the State is not without a remedy, as in case the detenu is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal to the Higher Court. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case.”
Most commendably, the Bench then while referring to latest case law remarks in para 18 that, “In fact, in a recent decision of this Court, the Court had to make an observation regarding the routine and unjustified use of the Preventive Detention Law in the State of Telangana. This has been done in the case of Mallada K. Sri Ram Vs. The State of Telangana & Ors. 2022 6 SCALE 50, it was stated as under:
“17. It is also relevant to note, that in the last five years, this Court has quashed over five detention orders under the Telangana Act of 1986 for inter alia incorrectly applying the standard for maintenance of public order and relying on stale materials while passing the orders of detention. At least ten detention orders under the Telangana Act of 1986 have been set aside by the High Court of Telangana in the last one year itself. These numbers evince a callous exercise of the exceptional power of preventive detention by the detaining authorities and the respondent-state. We direct the respondents to take stock of challenges to detention orders pending before the Advisory Board, High Court and Supreme Court and evaluate the fairness of the detention order against lawful standards.”
Finally, the Bench then concludes by holding in para 19 that, “In view of the above, the appeal stands allowed. The order of detention dated 28.10.2021 and order dated 25.03.2022 of the Division Bench of the High Court of Telangana are set aside. The detenu shall be released forthwith, in case he is not required in any other case.”
All told, the Apex Court has thus made it indubitably clear that preventive detention can’t be invoked for ordinary law and order situations. It has also voiced its utmost concern on routine and unjustified use of preventive detention laws which cannot be allowed to go unchecked and unabated as such preventive detention would be bad and in violation of Articles 21 and 22 of the Constitution as it clearly encroaches on the liberty and freedom of an individual. Very rightly so!
Draconian provisions of NDPS Act misused: Calcutta HC orders mandatory videography of recovery procedure
It is really good to note that in a remarkable, refreshing, robust and rational judgment titled Kalu Sk. @ Kuran v. State in C.R.M. (NDPS) 492 of 2022 with C.R.M. (NDPS) 493 of 2022 and cited in 2022 LiveLaw (Cal) 255 that was pronounced finally on June 22, 2022, the Calcutta High Court has directed that in all cases involving recovery of narcotic substances, seizing officers shall make a video recording of the entire procedure and that reasons for failing to videograph the recovery must be specifically stated in the investigation records. It must be specifically mentioned here that a Bench comprising of Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay opined that all police officers are ordinarily equipped with smart phones and other electronic gadgets which would enable them to videograph such a recovery procedure. It was further observed that reliance on such technology must be placed to instill fairness, impartiality and confidence in the investigative process. The Court conceded that the draconian provisions of the NDPS Act have been misused. This further necessitates mandatory videography of recording procedure as conceded by the Court.
At the outset, the Bench comprising of Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay sets the ball rolling by first and foremost putting forth candidly in the introductory para that, “Disturbing features were noticed in a number of cases including the present one involving recovery of narcotic substance under N.D.P.S. Act. Firstly, the seizure list did not contain signatures of all the accused persons who were alleged to have been arrested from the spot where the recovery was made. Secondly, presence of independent witnesses at the time of seizure appeared to be doubtful, as the said witnesses in their statements before the Magistrate under Section 164 of the Code of Criminal Procedure did not support the seizure. Noticing such discrepancies in the present and other cases, this Court was constrained to issue directions upon the Superintendent of Police of Murshidabad Police District to take steps in the matter including initiation of disciplinary proceedings/suspension of police officers connected with the investigation of the case.”
To put things in perspective, the Bench then envisages in the next para that, “Superintendent of Police is present before us. He has submitted report wherefrom it appears an administrative order has been issued directing all seizing officers to record signatures of accused persons who are apprehended at the time of recovery of narcotic substance in the seizure list. It also appears from the said report, seizing officer, investigating officer of the present case as well as Officer-in-charge of the Police Station concerned has been placed under suspension and departmental proceedings have been initiated against them.”
Without mincing any words, the Bench then concedes in the next para that, “N.D.P.S. Act vests plenary powers of search, seizure and arrest on investigating officers. The power of the court to grant bail is circumscribed by strict restrictions under Section 37 particularly in cases involving commercial quantity. While a strict law is necessary to control organized crime like drug trafficking and protect the youth from the menace of drug abuse, its draconian provisions are sometimes misused by investigating agency leading to false implication and prolonged unjustified detention of individuals. Most of the cases registered under the N.D.P.S. Act revolve around recovery of narcotic substance from the accused. Heart and soul of the prosecution is the legitimacy of such recovery. Prosecution in such cases primarily relies on the evidence of official witnesses particularly seizing officers to prove lawful recovery of contraband. In most cases as in the present case, independent witnesses are either not examined or turn hostile. There may be myriad reasons for that ranging from false implication to winning over of such witnesses by resourceful accuseds.”
Quite forthrightly, the Bench then observes that, “In order to remedy the situation and ensure unvarnished truth is placed before the court during adjudication, it is imperative that the investigating agencies resort to modern technology and videograph the recovery of narcotics.”
While underscoring the need for use of technology by the police, the Bench then points out that, “This Court takes judicial notice of the fact that all police officers are ordinarily equipped with smart phones and other electronic gadgets which would enable them to videograph recovery. When technology is available at the lay level we see no reason why it shall not be utilized to instill fairness, impartiality and confidence in the investigative process. Videography as a modern tool of investigation has been well recognised in law. In fact, the Field Officers’ Handbook issued by Narcotics Control Bureau, inter alia, directs the search team to carry video camera amongst other equipments for the purpose of search. (See Chapter 3 – Operation: Preparation, Co-ordination and Planning). In chapter 6 relating to “Recovery and Seizure” video recording of seizure of narcotics has been mandated as under:-
“Video:- A lot of times the witnesses and suspect allege foul play by the search team during the trial proceedings alleging that they were not present at the time of recovery. To avoid such a situation, all recovery and concealment methods should be videographed simultaneously if possible, recording the presence of the owner/occupant of the premises and the witnesses. This acts as a deterrent later during trial proceedings.””
Lamentably, the Bench then also points out the most worrying part as stated in the next para that, “Unfortunately, even in cases conducted by NCB, such directives are mostly observed in the breach.”
Be it noted, the Bench then points out that, “It may also be apposite to note use of videography in investigation was examined by a Committee constituted by the Ministry of Home Affairs in 2017. The Committee observed videography of crime scene as “desirable and acceptable best practice”. The Committee issued various directives for the purpose of preparation, capacity building and implementation of such procedure on a mandatory basis.”
While continuing in the same vein, the Bench then enunciates that, “The Committee also suggested a group of experts to be set up at the level of Government of India to issue guidelines and advisories. State Police and the Central investigating agencies were also advised to set up steering committees to spearhead the drive. State and Central agencies were also suggestive to designate a Senior Officer in the rank of IG/ADG as Nodal Officer for the preparation, capacity building and implementation of videograph in investigation.”
While citing the relevant case law, the Bench then deems it apposite to state that, “In Shafhi Mohammad Vs. State of Himachal Pradesh (2018) 5 SCC 311, the Apex Court noted the aforesaid report and observed as follows;
“9. We are in agreement with the Report of the Committee of Experts that videography of crime scene during investigation is of immense value in improving administration of criminal justice. A Constitution Bench of this Court in Karnail Singh v. State of Haryana (2009) 8 SCC 539 : (2009) 3 SCC (Cri) 887, SCC para 34 noted that technology is an important part in the system of police administration. It has also been noted in the decisions quoted in the earlier part of this order that new techniques and devices have evidentiary advantages, subject to the safeguards to be adopted. Such techniques and devices are the order of the day. Technology is a great tool in investigation [Ram Singh v. Ram Singh, 1985 Supp SCC 611; R. v. Maqsud Ali, (1966) 1 QB 688 : (1965) 3 WLR 229 : (1965) 2 All ER 464 (CCA); R. v. Robson, (1972) 1 WLR 651 : (1972) 2 All ER 699 (CCC); Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329 : (2010) 2 SCC (Civ) 112 : (2010) 2 SCC (Cri) 826; Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54; Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1 : (2012) 3 SCC (Cri) 481; State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715]. By the videography, crucial evidence can be captured and presented in a credible manner.””
Most forthrightly, the Bench then minced no words to hold that, “The Court further held time was ripe to introduce videography in investigation particularly for crime scene as a desirable and acceptable “best practice” as suggested by the Committee to strengthen the rule of law. It approved the Centrally Driven Plan of Action prepared by the Committee and the timelines mentioned therein.”
Most remarkably, the Bench then also hastens to add in the next para that, “The observations made in Shafhi Mohammad (supra) as well as the guidelines in the Field Officers’ Handbook issued by the Narcotics Control Bureau reinforce our view regarding mandatory videography of recovery proceedings under NDPS Act. Technology has advanced considerably and equipments like smartphones and other electronic devices enabling videography are ordinarily available with seizing officers. Hence, lack of availability of technology or awareness is a non-issue.”
Most significantly, the Bench then holds in the next para what forms the cornerstone of this notable judgment that, “Accordingly, we direct as follows:-
(i) In all cases involving recovery of narcotic substance particularly recovery of narcotic above commercial quantity, seizing officers shall make a video recording of the entire procedure unless for reasons beyond the control of seizing officers, they are unable to do so;
(ii) Reasons for failing to videograph the recovery proceeding must be specifically recorded in the investigation records particularly contemporaneous documents including seizure/inventory list;
(iii) Superior Police Officer not lower than the rank of Additional Superintendent of Police shall monitor recovery of narcotic substance above commercial quantity within their territorial jurisdiction and ensure due compliance of statutory provisions regarding search and seizure including compliance of the directives (i) and (ii) relating to videography of recovery and/or recording of adequate reasons for departure from such procedure;
(iv) Non-compliance of the directives (i) and (ii) relating to videography of recovery and/or failure to record just reasons in contemporaneous documents for its noncompliance would attract departmental proceeding so far as the seizing officer is concerned;
(v) Director General of Police shall issue necessary directions for due compliance with the aforesaid directives;
(vi) Superintendent of Police/Commissioner of Police in each district/commissionerate shall undertake training programmes to spread awareness and capacity building of officers regarding compliance of statutory requirements in the matter of search and seizure of narcotic substance under NDPS Act and compliance of the aforesaid directives relating to videograph of recovery including collection, preservation and production of such electronic evidence in Court.”
It is also worth noting that the Bench then made it quite clear that, “We are also of the considered view all Central agencies empowered under the NDPS Act to search and seize narcotic substance ought to comply with the aforesaid requirement of videography of recovery proceedings.”
As it turned out, the Bench then observed that, “Accordingly, it is proposed directive Nos. (i), (ii) and (iv) shall apply to all seizing officers of the Central agencies empowered to search and seize narcotics under NDPS Act. Directive Nos. (v) and (vi) shall apply to the head of the department of the Central agency concerned while Directive Nos. (iii) and (iv) shall apply to all superior officers of the said agency not below the rank as prescribed by the head of the department.”
Of course, the Bench then directs that, “Union of India including NCB shall submit response in this regard on the adjourned date.”
Furthermore, the Bench then specifies in the next para of this learned judgment that, “Director General of Police, West Bengal shall submit report with regard to the compliance of the aforesaid directions on the adjourned day.”
As we see, the Bench then directs that, “Let these matters appear two weeks hence.”
Furthermore, the Bench then also mandates in the next para that, “Registrar General shall communicate a copy of this order to the Union of India including NCB as well as on the Assistant Solicitor Generals of this Court and Director General of Police, West Bengal for necessary compliance.”
Finally, the Bench then aptly concludes by holding in the final para of this extremely laudable judgment that, “Presence of the Superintendent of Police, Murshidabad is noted and dispensed with at present.”
In a nutshell, this brief, brilliant, bold and balanced judgment is certainly worth emulating by all the Courts in India. No doubt, the Courts must always regularly ensure that the draconian provisions of NDPS Act are not misused which can put to trouble an innocent person which cannot be ever justified.
We thus see that the Calcutta High Court very rightly orders mandatory videography of recovery procedure in strict compliance with the rules as stated above. It definitely merits no reiteration that all the courts must definitely pay heed to what the Calcutta High Court has held in this leading case so very commendably, cogently and convincingly!
THE EFFECT OF THE SOCIOLOGICAL SCHOOL ON THE CURRENT LEGAL SYSTEM
Law has consistently been taken a gander at as one of the significant instruments that could achieve social change. Numerous academicians have upheld the view that law appreciates and utilizes binding together capacity to contribute towards better social union, as a device for achieving homogeneity in the heterogeneous populace having socio-social assorted varieties. Despite the fact that there are a few gadgets to achieve a change and renewal in the public arena, however reconstruction through law is maybe one of the best and most secure strategies to accomplish this end. Indian society has transformed over the period of time from a society governed by Smrithi, Sruti, Dharma and other customary law, to western conceptions of law and authority during the colonial period. Further with the rights-based Constitution and dynamic law-production which incorporates the codification of strict laws and governmental policy regarding minorities in society during the post-pioneer period, the Indian culture has gone through change. The commitment of sociological statute to the social change in India, could be all around surveyed as perceived by seeing the law as a device of social designing. Significance allocated to sociological school of law, is because of the way that by glancing through the focal point of this specific way of thinking, the reaction of human conduct in a general public to law and how law has made and shaped itself to suit the manner in which the general public reacts to it could be perceived .There additionally could be cases we could watch, by which we could see even the general public now and again requests for laws. this interaction of law and society contributes and prompts advancement of one another. Looking from the sociological school of statute during the hour of pilgrim organization in India, social change had clearly occurred, yet the circumstance that existed in which the laws were forced by the provincial organization, gives an impression of a circumstance for the positivist law to exist. English organization can’t be said to have seen law as social building device for the Indian culture. Further, to a great extent there was no reference to the need of the individuals in the law-production during pilgrim times. The provincial arrangement of law-production can’t be outlined into agreement or strife model, as the individuals’ investment, keen or need was not of much worry for the law-production around then. Be that as it may, precluding all the law made during pilgrim organization out of ambit of sociological statute is likewise impractical. English organization was more keen on shaping laws that will help in framing a dish India level system for the administration of the nation. In any case, because of the general assessment likewise certain laws were established matters such as sati and child marriage abolishment legislations. This indicates that the need of people, reflected in the public opinion also had an impact on the legislations even during the colonial period . Post-Colonial Period Post-frontier period saw critical measure of law-production that affected quite a bit of social change in India. This began with the confining of Indian Constitution, a report which could be alluded to as socio-political and right-situated in approach. The Constitution has really planted the seeds of a moderate social upheaval that had set off numerous dynamic and purposive law-production. The Constitution by joining arrangements that gets governmental policy regarding minorities in society, advances multiculturalism and proportions of a commitment upon the States prompting a government assistance instrument is an exemplification of a law made inside the system of sociological statute. Despite the fact that the Constituent Assembly was not a chosen body, the perspectives and issues that were examined and further got reflected in the Constitution, had unquestionably the goals of the individuals and thought about the different parts of enthusiasm of the Indian culture. Further, we could infer that the Constitution of India that purposive law-production for driving India into a moderate social insurgency, and over the timeframe Constitution has formed its shape with the changing need of the country.
PIONEERS OF THE SOCIOLOGICAL SCHOOL
There are various pioneers of the this school namely Auguste Comte, Herbet Spencer, Dugit , Eugen Ehrlich , Ihering , Haurio and one the important pioneer is Roscue Pound . It is to be stated that howsoever divergent the views of various sociological jurists may appear, they have one common point that the law must be studied in relation to society This view has a great impact on modern legal thought.
THEORIES OF VARIOUS PIONEERS OF SOCIOLOGICAL SCHOOL AND THEIR IMPACT/CONTRIBUTION ON THE PRESENT LEGAL SYSTEM
1 . Duguit
Durkheim’s main point, on which Duguit built upon, was that he made a distinction between two kinds of needs of in society. Firstly, there are common needs of individuals which are satisfied by mutual assistance and secondly , there are diverse needs of individuals which are satisfied by exchange of services. Therefore , the division of labour is the most important fact of social cohesion. He named it ‘social solidarity’ . With development of free individual activities the ‘social solidarity’ develops . The ‘social solidarity’ is a fact and it is necessary for social life. His theory impacted in way which causes minimisation of state functions . The social solidarity is the touchstone of judging the activities of individuals and all organisations . State is also a human organisation and it is in no way different from other organisations. It is simply the expression of the will of the individuals to govern . They too are under a duty to ensure ‘social solidarity’ . Therefore , the state stands in no special position of privilege and it can be justified only so long as it fulfils its duty . Duguit has a no faith in an all powerful illimitable authority ‘sovereign’ . He strongly pleads for the check on the state power . Thus in the present legal system three organs keep the check on eachother as there is no bias decision and nothing goes wrong and the work goes on smoothly thus a system of check and balances is established .According to him legislator does not create law but merely gives expression to judicial norm formed by the consciousness of the social group .
According to him, the development of law like its origin is neither spontaneous nor peaceful. “It is the result of constant struggle or conflict with a view to attain peace and order.” Ihering says, “Law is the guarantee of the conditions of life of society, assured by the state’s power of constraint. LAW IS TO SERVE SOCIAL PURPOSE- He takes law as a mean to an end. The end of the law is to serve purpose. This purpose is not individual but social purpose. When individual purpose comes in conflict with social purpose, the duty of the state is to protect and further social purposes and to suppress those individual purposes which clash with it. This end may be served either by regard or by coercion and it is the latter which is used by the state. Therefore, “law is coercion organised in a set form by the state’. As to its impact on the present legal system, he says that law is the only means to control the social mechanism, or it alone can protect and further all the social purposes. Law is the only one factor among many others. There are some conditions of social life, such as climate, etc. for which only part-intervention is made by law. Lastly, there are some conditions of social life which are secured exclusively by the law, such as raising of revenue. In short, according to Ihering, the purpose of law in the present legal system is to secure the conditions of social life by the state through coercion. Law always has a purpose. the purpose is to further and social interests.
Ehrlich Law is to be found in social facts- the central point in Ehrlich’s thesis is that the law of a community is to be found in social facts and not in formal sources of law. He says: “At present as well as at any other time, the centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself.” ‘Living law’ is the fact that governs social life- the norms which, in fact, govern social life are only partly reflected in the formal law (i.e., statute of judge-made law) of that society. the essential body of legal rules is always based upon the social facts of law. The ‘fact of law’ which underlie all law are usage, domination, possession and declaration of will. These facts regulate the social relations and make the ‘living law of the people’, state-made law (statutes and decisions) is only a part of this great body of law. Generally, these legal norms lag behind the ‘living law’. In the present legal system, his point is used as the law is made according to the requirements of the society. His use of the term ‘sociological jurisprudence’ means that the law in
society should be made and administered with the utmost regard to its requirements. To achieve this end, a very close study of social conditions of the society, in which the law is to function is, indispensible. Also, as we see today, law is made considering the needs of the society and their interest is protected. Thus, what he wants in the legal system is social justice. by ‘justice’ he does not mean some absolute principle, but a relative justice changing with time and place. 4. Roscoe Pound For Pound, the law is an ordering of conduct so as to make the goods of existence and the means of satisfying claims go round as far as possible with the least friction and waste. According to him, the end of law should be to satisfy a maximum of wants with a minimum of friction. The task of law is ‘social engineering’- Pound’s main thesis is that the task of the law is ‘ social engineering. He says- “For the purpose of understanding the law of today, I am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. I am content to think of law as a social institution to satisfy social wants, the claims and the demands involved in the existence of civilised society- by giving effect to as much as we may with the least sacrifice, so far as such wants may be satisfied or such claims given effect to by an ordering of human conduct through politically organized society. For the present purpose I am content to see in legal history the record of a continually wider recognising and satisfying of human wants or claims or desires through social control; a more embracing and more complete and effective securing of social interests; a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence- in short, a continually more efficacious social engineering”. The present legal system consists of the concept of social engineering laid down by Pound as social engineering consists of study of actual social effects of legal institutions and legal doctrines, study the means of making the legal rules effective, sociological study in preparation of law making, study of judicial method, a sociological legal history and the importance of reasonable and just solutions of individual cases. As social engineering consists of three heads under it: private, public and social interests, the present legal system safeguards the three interests as follows: The private interests to be protected by the law are: a) the individual’s interests of personality: These include his physical integrity, reputation, freedom of volition and freedom of conscience. They are safeguarded by the criminal law, law of tort, law of contracts and by limitation upon the power of government to interfere in the matter of belief and opinion, b) Individual’s interests in domestic relations: these include marriage, relations of husband and wife, parents and children, and claims to maintenance, c) Interests of substance: these include proprietary rights, inheritance and testamentary succession, and occupational freedom. the principal public interests are: a) interests in the preservation of the state as such, and b) interests of the state as the guardian of social interests. The social interests deserving legal protection are: a) interests in the preservation of peace and order and maintaining general security, b) interest in preserving social institutions like marriage and religious institutions, c) interest in preserving general morals by counteracting corruption, discouraging gambling and invalidating transactions repugnant to current morality, d) interests in conserving social resources, e) interest in general progress which is to be achieved by freedom of education, freedom of speech and expression, freedom of property, trade, and of commerce, and f) interest in the promotion of human personality.
THE RELEVANCE OF THE THEORIES OF THE SOCIOLOGICAL SCHOOL IN PRESENT LEGAL SYSTEM:
EFFECT OF LAW AND SOCIETY ON EACH OTHER
The above all else effect of the sociological school on present lawful framework is that law is made considering the requirements of the general public as all the pioneers of the school in their hypotheses have one or in the other manner said something very similar that there is no law without society as though the law is made without considering the general public or it doesn’t satisfy the necessities of the general public and can’t keep up the enthusiasm of the general public then it can’t be viewed as law . so both law and society are identified with one another.
RELATIONS BETWEEN INDIVIDUAL, STATE AND SOCIETY HAVE BEEN CHANGING
Relations between individual, state and society have been continually changing and different hypotheses with respect to it have been given every now and then. In the first place, society was administered by customs which had just social authorization. At that point there came the matchless quality of ministers. A short time later the mainstream state developed groundbreaking and it ruled all foundations. As a response the significance of individual was stated by scholars and logicians. There were unrests and political changes. Presently, the need of adjusting the government assistance of the general public and the individual was figured it out. At that point there came an inclination of socialization and an engineered approach was given. The significance of individual for the general public and of the last for the previous was underlined.
IN THE MODERN TIMES TENDENCY OF SOCIALIZATION
At that point came the view that one ought to be considered in the light of the other. The methodologies produced using this perspective are called sociological methodologies. The reasons which achieved this sort of approach are many. The chronicled school, the philosophical development and the relative investigation of legitimate framework all in various manners contributed in achieving this new technique.
BACKGROUND OF THE NEW THOUGHT
The changed political way of thinking, new hypotheses of science, Industrial upset, new monetary idea and ground-breaking thoughts in other sociology in the nineteenth century had their impact on the legitimate idea. The French and German masterminds established the frameworks of the thoughts of socialism and communism which gave a new understanding on the reason for law. The hypothesis of natural advancement gave the possibility of natural improvement which was applied on law too. Along these lines, there occurred a progressive change in the idea of law . In the advanced occasions, social relations are developing increasingly mind boggling. The idea of state and its connection with people have gone through an extraordinary change. New understandings are being given to these progressions yet remembering the fundamental effect of sociological school that is connection among law and society.
On the basis of the development of social values and common rules of behavior we may distinguish three types in the sociological approach to law:
1) the classical sociological approach, which is characteristic of traditional society;
2) the modern sociological approach, which is characteristic of industrial society;
3) the post-modern sociological methodology, which depends on expanding singular government assistance. The sociological methodology is basically reasonable and communicates the connection between society a well as its people and gatherings with law. The traditional sociological way to deal with law rises as the legitimate request of the state is slowly supplanted by the lawful request dependent on customs.
The development of the modern sociological approach to law can be divided into two stages:
1) The phase of building up a majority rules system, where request is set up by methods for laws and progressive enactment. Citizenry are relied upon to willfully comply with the lawful request of the state. Along these lines enactment depends on expanding information about the truth of law. Information on “lawful authenticity” is a boost for the humanism of statute and the improvement of the social science of law.
2) The phase of utilizing present day law as an instrument of making the cutting-edge state. During the time spent advantageous interaction among popular government and present-day political idea law has made the thought of law as an instrument of social change. This idea has assembled two factors – the developing intensity of the cutting-edge state and social change. Current law is viewed as just an instrument of the state’s political force and its effectiveness is controlled by the grouping of political powers, autonomously from the help of different frameworks of social guideline. Investigating the sociological way to deal with law has lost its pertinence. This explains the negative consequences of society’s legal culture:
1) the unconditional endorsing of the instrumental approach to law;
2) the weakening of the link between society and law. The weakening of the link between society and law is particularly hazardous because individuals’ voluntary obedience to the rule of law gives basis for the existence of society as such.
It is to be expressed that howsoever unique the perspectives on different sociological legal scholars may show up, they have one basic point that the law must be concentrated according to society. This view greatly affects present day legitimate idea but it ought not be interpreted as meaning that different strategies have totally stopped to exist.
THOSE WHO ANNOUNCE BOUNTY MUST BE AWARDED STRICTEST PUNISHMENT
It is hitting the headlines all over that the Delhi Police Special Cell has arrested Bhim Sena chief Nawab Satpal Tanwar for allegedly announcing a bounty of Rs 1 crore on Nupur Sharma in a Facebook video and also made threatening remarks. The Delhi Police said that Tanwar had allegedly issued death threats and announced bounties earlier too. Within no time he gets bail as we see in similar other such cases!
It must be asked: How can Centre take all this just lying down so quietly? Why is it becoming so common to issue death threats and announcement of bounty on the head or throat of some one? Why is bail given so quickly and so easily to those who issue such dastardly threats?
Needless to say, our penal laws merit prompt correction in this regard and law makers who are reviewing penal laws must immediately deliberate, discuss and debate on this also so that the growing reprehensible tendency of issuing death threats or threats to maim some person is promptly reigned in!
Of course, we are not living in a Talibani India! We are a secular country and no one has the unfettered right to issue such death threats or threat to cut tongue or hands or legs! Why can’t Centre make such strict laws which mandates at least 14 years imprisonment to all those who dare to issue such death threats or threats to maim someone?
Who is Nupur Sharma? She is just about 37 years old who is a graduate in economics from Delhi University’s Hindu College and LLB from the Delhi University’s Faculty of Law. She also has a Master’s degree in law from the London School of Economics. She started her stint in politics as a student leader and, in 2008, went on to win the post of Delhi University Students’ Union president. It was a time when the Congress’s student wing, the National Students’ Union of India (NSUI), had a strong presence on campuses. So while Nupur managed to get the president’s post, all other posts were won by the NSUI. The most high-profile of her electoral contests, however, remains the 2015 Delhi Assembly election, when she decided to pick up the gauntlet and take on none other than the Aam Aadmi Party (AAP) convenor Arvind Kejriwal from the New Delhi seat. She however lost by 31,583 votes but gave tense moments to Kejriwal.
Many of us know very well that Nupur Sharma who has been a very familiar and prominent face of the party’s youth wing, the Bharatiya Janata Yuva Morcha, has also held several positions in the party such as national executive committee member of the youth wing and member of the Delhi state executive committee. In 2017, she was appointed Delhi BJP’s spokesperson when the then Delhi state unit chief Manoj Tiwari formed his team. In September 2020, when JP Nadda set up his team, Nupur Sharma was then picked as a national spokesperson.
It is said that Nupur Sharma made some controversial comments about Prophet Mohammad who is the founder of Islam. It merits no reiteration that no sane person can ever endorse anything wrong said about such a prominent personality whom Muslims hold in the highest esteem. She spoke about Prophet Mohammad marrying with a very small girl.
We don’t even get to read as to what exactly she said. She later apologized also humbly for the remarks which she made while speaking in a discussion in a news channel. Then why so much of brouhaha is made not just in India but all across the globe! We see so many times even Hindu Gods and Goddesses are not spared! But everything normally ends with an apology! This is what in this case I find most reprehensible and I am glad to see that many Muslim prominent faces too are condemning the issuing of death threats to Nupur Sharma and have voiced the controversy to be laid to rest as she has apologized.
It cannot be glossed over that a very eminent Muslim scholar named Maulana Salafi Engineer Mohammad Ali Mirza of Pakistan has fully, firmly and finally supported Nupur Sharma. He said that the Muslim panelist had first provoked Nupur Sharma by commenting and it was in response to this that she commented about the Prophet. Maulana Mirza said forthrightly that, “We have to see the whole atmosphere in this entire controversy. The real culprit is the Muslim guy who first mocked Hindu religion in the live TV show. BJP leader [Nupur Sharma] made remarks about the Prophet in rebuttal. Islam does not allow us to mock other religions.” He said that from the style and tone of Nupur Sharma’s statement, it will be known that she is retaliating. He said that the first criminal is a Muslim who talked about one’s religion in a live TV program but about whom none is speaking in India. This is what even I find really atrocious!
Maulana Ali further said that in the Nupur Sharma controversy, people of the Arab countries are provoking the atmosphere by sitting in ACs while in India people are protesting in the scorching heat and the policemen are answering them. He further puts across his point saying that, “This is basically an international politics. Arab countries are the slaves of those nations who are not the allies of Russia. These countries instigated Arab countries against India. Before this, there have been many big cases on which Arab countries did not react. Now Arab countries were instigated to put pressure on India regarding Russia.” No doubt, the reference is to countries like Canada, US, UK and other European countries!
We are a democratic country where every person has a right to put across his/her viewpoint. If Nupur Sharma has said something wrong the law is there to take her to task but what about the person named Tasleem Ahmed Rehmani who provoked first Nupur Sharma? Why no one is talking about him? Why he commented adversely about Lord Shiv and the Shivalinga found in the Gyanvapi Masjid well which is just not being discussed anywhere but which even a Maulana based in Pakistan is pointing out as I have just mentioned above! Nupur Sharma who herself is a lawyer has a legitimate point when she claims that her comments were a reaction to continuous insult and disrespect towards our Mahadev (Lord Shiva) by the other panelist named Tasleem Ahmed Rehmani who was also speaking on the TV debate and who happens to be a Muslim. Why no one is talking about him also? Why only Nupur Sharma is alone being selectively made a scapegoat? Why we don’t see anyone mentioning about that person also? This makes it indubitably clear that we practice discrimination in such a terrible manner which cannot be ever justified under any circumstances!
The million dollar question is: Why are we seeing growing intolerance in India? Why those who give death threats are very rarely punished and why at least for 14 years they are not thrown behind bars who issue death threats for any reason whatsoever? Why is Centre not making law on this at the earliest? Centre must act on this also so that no one ever dares to ever issue such bounty awards and death threats. If Centre fails to act on this at the earliest then that day is not far when we will openly see beheading and what not which will only signal the end of democracy in India!
It really pleases me to the hilt to see for myself that none other than the Jamaat Ulama-e-Hind president Suhaib Qasmi on Sunday himself is on record saying that the former Bharatiya Janata Party (BJP) leader Nupur Sharma, who allegedly made controversial remarks on Prophet Muhammad, should be forgiven as per Islam. He added that the organisation of Muslim scholars disagreed with the nationwide protests in wake of her remarks. He also pointed out that the matter should have been laid to rest after she publicly apologized for the remarks which she made. Qasmi said, “Islam says Nupur Sharma should be forgiven. We disagree with the protest that started across the country after Friday prayers against Nupur Sharma and her derogatory remarks.”
Apart from this, Jamaat Ulama-e-Hind also welcomed the decision of the Bharatiya Janata Party (BJP) to suspend Sharma. Qasmi said at the press conference that, “We are welcoming the decision of the law because India is the law of the land and we are not going to take the law into our hands. The law does not allow to come on the road and break the rule.” Jamaat Ulama-e-Hind has decided to issue a ‘fatwa’ through which it will urge people not to support any kind of violence in connection with Nupur Sharma and her remarks. “The fatwa will come against Asaduddin Owaisi and Mohammad Madani,” the Jamaat said. It is good to see that we have such Muslims who have downright condemned the use of physical force and violence against a woman named Nupur Sharma and no civilized country can ever support such death threats or any other kind of threat of causing any kind of harm and that too to a woman!
As if this was not enough, we see Mamata Banerjee passing resolution in West Bengal State Assembly condemning Nupur Sharma but not saying a word on Tasleem Ahmed Rehmani who first provoked Nupur by what he said! Not just this when we see Hindu Sadhus being burnt and beaten to death then no one condemns so strongly! This dubious double standard smacks of sheer hypocrisy which cannot be justified under any circumstances!
This alone explains why even Dutch lawmaker Geert Wilders said on Twitter that, “Don’t listen to the hypocrites. Islamic nations have no democracy, no rule of law, no freedom. They persecute minorities and disrespect human rights like no one else. They should be criticized whose ideology is offensive and abusive, not the heroic Nupur Sharma! Democracies like India and Netherlands have a rule of law. Courts will decide if one oversteps the mark and not mobs who threatens to kill anybody.”
Why these very Islamic countries who are reacting now so angrily on Nupur Sharma and protesting to Indian embassies maintain a shocking and deafening silence to Chinese ghastly assault on Islam by confiscating Qurans, not allowing Muslims to pray even in mosques unlike India where they pray even on roads and mercilessly persecute Uighur Muslims in Xinjiang province? Why these Islamic countries don’t utter a word when ancient Hindu temples are burnt down in Pakistan and Bangladesh and idols of Hindu Gods and Goddesses are also similarly mercilessly broken to pieces? Similarly, why when terrorists trained in Pakistan mercilessly kill Indians which includes even Muslims like a Sub-Inspector Farooq Ahmad Mir in Pulwama do we see no such protest by anyone?
This alone explains why my best friend Sageer Khan said way back in 1993 that, “Muslims enjoy maximum liberty in India all over the world. Muslims must accept that Hindus quietly accepted monogamy in 1955 even though earlier both Hindu men and women could marry as many as they wanted but no one dare abolish polygamy among Muslims because Muslims don’t accept quietly unlike Hindus who accept everything so quietly. If Ram temple and Shiv temple will not be built in Ayodhya or Kashi will it be built in Mecca or Medina? Not a single mosque should ever be built in Ayodhya, Kashi and Mathura! Hindus are so tolerant that inspite of nation getting partitioned on basis of religion still Hindus didn’t favour a theocratic state unlike Pakistan which became a theocratic and yet itself got partitioned in 1971 whereas India is still united and will always stay united because Hindus are so tolerant that they never prefer to fight! So all credit definitely goes to Hindus that India is still a secular country!”
It must be underscored that those who resort to stone pelting or burning of trains or burning of buses or any other kind of violence in a democratic country like India must be punished with the strictest punishment and should never be allowed to go scot free. We saw how in Kanpur among other cities, many protesters who were protesting against the statement of Nupur Sharma pelted stones and damaged vehicles and ransacked shops etc! Violence by anyone whether he/she is a Hindu or Muslim or Sikh or anyone else cannot be justified under any circumstances! If anyone tries to justify this then it will definitely become a most dangerous trend which will be justified on one pretext or the other which can never be in the long term national interest and cannot be ever justified under any circumstances!
It is really most shocking to see that in a democratic country like India which believes in pluralism and tolerance and harmony, we see just one argument in a TV channel assuming such gargantuan proportions which cannot be justified. It is so shocking to see that some leaders and fundamentalists organizations are openly calling for action to be taken against Nupur Sharma and hanging her publicly which I find most reprehensible because we are a democratic country and not some hard core Islamic country like Afghanistan! This has only compelled many Hindu organizations like VHP, Bajrang Dal among others to come out openly in full support of Nupur Sharma and they have a legitimate point too that so much of brouhaha is being made over a debate discussion in a news channel in which the other panelist Tasleem Ahmed Rehmani also was seen making some sarcastic remarks about Lord Shiv which provoked Nupur Sharma also to reply in anger as was pointed out even by a very eminent Maulana of Pakistan as stated above.
All said and done, it is high time and now Centre must definitely step forward and take the much needed bold initiative in this regard of stipulating the strict punishment of at least 14 years if not 20 years in jail to all those who dare to ever announce bounty rewards to kill someone or maim someone or cut the throat of someone which is nowadays becoming a fashion in India and yet such rogues are rarely punished. Why should their property also not be seized? Why should they be let off so gently after just 2 or 3 years only as we see under our present laws?
Why should such criminals who announce bounty on head of someone get bail so easily? Why should such offence not be non-bailable and cognizable? Why should such criminals not be promptly arrested and put behind bars which is their right place also? It certainly merits no reiteration that this burning issue must be addressed by Centre now itself without any more further delay by promptly amending the law in this regard as it brooks no more delay now! It certainly merits no reiteration that this burning issue must be addressed by Centre now without any more further delay as it brooks no more delay now!
Sanjeev Sirohi, Advocate.
The million dollar question is: Why are we seeing growing intolerance in India? Why those who give death threats are very rarely punished and why at least for 14 years they are not thrown behind bars who issue death threats for any reason whatsoever? Why is the Centre not making law on this at the earliest? The Centre must act on this also so that no one ever dares to ever issue such bounty awards and death threats. If the Centre fails to act on this at the earliest, then that day is not far when we will openly see beheading and what not which will only signal the end of democracy in India!
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