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Stab in the dark? Need for sentencing guidelines in India

Vishavjeet Chaudhary and Arindam Bharadwaj

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Sentencing in the criminal justice system is perhaps the most important exercise in the criminal justice process. It is one where all functionaries (as defined by the Code of Criminal Procedure) as well as the victim and the convict take centre stage. In many ways it is the culmination of a number of processes and the point where law comes down on the criminal with all its strength. In fact, it is also the link between the criminal justice system and the society as justice is ‘seen’ as being done. The common law form of criminal penalty provision confers upon the sentencing judge an enormous range of choices. The scope of what we call discretion, permits imprisonment for anything from a day to one, five, ten, twenty or more years. The statutes granting such powers characteristically says nothing about the factors to be weighed in moving to either end of the spectrum or to some place between.

Sentencing Framework

The Indian Penal Code (IPC) provides for 5 types of punishment which could be awarded by a competent court, namely death penalty, imprisonment for life, imprisonment (rigorous or simple) for a specified term, forfeiture of property and fine. A competent court can impose any of these sentences, except for cases where death sentence is imposed as in such cases the death sentence imposed by the sessions court needs to be confirmed by its jurisdictional High Court. ¬The IPC and other criminal statutes provide for a discretionary system of sentencing where the maximum as well as the minimum term of sentence is provided by the statute, and the judge has the discretion to determine the appropriate sentence.

The Code of Criminal Procedure, 1973 (Cr.P.C) lays down the general procedure for post-conviction hearing on sentences. This did not exist in the Cr.P.C of 1898 but was introduced in the new Code enacted in the year 1973. Section 235 of the Cr.P.C talks about judgment of acquittal or conviction under which it states that if the accused is convicted, the judge shall hear the accused on the question of sentence and then pass sentence on him according to law. Section 325 of the Cr.P.C stipulates for a situation where a magistrate, upon hearing the evidence for the prosecution and the accused, is of the opinion that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict, he may record the opinion and submit his proceeding, forward the accused, to the Chief Judicial Magistrate to whom he is subordinate. Now as per Section 235, the sentencing judge is to hear the accused on the issue of sentence and then must pass the sentence accordingly. Here the judge is to adjudicate upon relevant mitigating and aggravating factors however no set guidance for adjudicating the same is provided apart from the submission from counsels and the judge’s own experience and wisdom. Even under Section 325, there is no guidance provided as to how a magistrate may form an opinion with regard to the powers of sentence available to them being insufficient to adequately punish the convicted person.

Sentence Disparity in India

 Sentence disparity has been a one of the most neglected affairs of the criminal justice system in India. The courts in most criminal appeals have often confined itself to statutory interpretation or to issues relating to fact determination, which has led to the criminal law in India becoming static, especially in terms of sentencing. Even the highest courts have failed to provide any guidance to be followed by the subordinate courts in terms of sentencing except for cases where death penalty could be imposed.

The Vidhi Centre for Legal Policy published its report in April, 2018 on the working of the Narcotic Drugs and Psychotropic Substances Act in the State of Punjab. The report specifically pointed out the disparities in sentences that were awarded to accused in pharmaceutical drug cases. For example in a case decided in the Special Court of Amritsar, an accused was sentenced to one year and six months’ imprisonment and a fine of 3,000 rupees for carrying 500 grams of dextropropoxyphene. On the contrary, in a case decided by the Special Court of Patiala, the accused was sentenced to 10 years’ rigorous imprisonment and a fine of 1,00,000 rupees for carrying 500 grams of intoxicant powder containing dextropropoxyphene. The quantity of drugs found on both persons was almost commercial quantity but in one case the judge gave a lenient sentence whereas in the other one the judge was of the view that the nature of recovery, i.e. 500 grams of intoxicating powder containing dextropropoxyphene is on the verge of commercial quantity thus the accused is not entitled to any lenient view. On examining various similar cases, the report concluded that sentencing for pharmaceutical drug offences under the NDPS Act varies dramatically across districts and even within districts. Similar is the trend across all criminal statutes as sentencing for almost all offences varies dramatically across states and even districts. A cardinal principle of criminal law is that the desert for offences similar in nature should also be similar. A system of criminal justice that allows the differential enforcement of its law is not a system that honours the principles of proportionality and equal treatment.

Dr. Mrinal Satish in his book Discretion, Discrimination and the Rule of Law, analysed cases of rape simpliciter, child rape and gang rape punished under Section 376 of the Indian Penal Code, appealed to and decided by several High Courts and the Supreme Court of India between the years 1984 to 2009. The analysis revealed that the appellate courts disagreed with the subordinate court decisions in more than 50 percent of cases. In rape simpliciter, the High Courts overturned the trial court’s finding of guilt in 44 percent of cases and altered sentences in 16 percent cases. In gang rape cases, High Courts overturned convictions in 37 percent of cases and altered sentences in 18 percent cases and in child rape cases, convictions were overturned in 29 percent of cases and sentences were altered in 20 percent cases. Interestingly the Supreme Court was more likely to disagree with High Courts, with convictions being reversed in 53 percent of cases and sentences being altered in 21 percent cases. The same trend was observed in cases of gang rape, where the Supreme Court overturned the High Court’s finding of guilt in 48 percent cases and altered sentences in 11 percent cases. However the important observation made in the study was the factors that are considered by the High Courts and the Supreme Court in deciding whether to convict and especially in deciding how to sentence the offenders. The unwarranted disparity in sentencing was primarily caused by three factors: first, courts considering stereotypes and rape myths in determining sentences; second was the inconsistent use and application of theories of punishment while determining the sentence and lastly the consideration of irrelevant factors, leading to arbitrariness.

Reasons for Discrepancies

According to Prof. Andrew Ashworth, a renowned jurist who also was a Professor of English Law at the University of Oxford, one of the major reasons for sentencing disparity is the different penal philosophies amongst judges and magistrates. Even Judge Marvin Frankel, an United States Federal Judge and a pioneer of sentencing guidelines in the US, argues that the wide and unbridled power that sentencing judges possess is unacceptable in a legal system that follows the rule of law. However this problem could be magnified exponentially in a situation where the sentencing judges had unlimited discretion to impose a sentence according to their subjective intuition, which invariably will differ and can be plagued by bias, ignorance and prejudice.

Another major reason for the existing disparity is the little sense being applied while introducing a new offence which results in an unprincipled and chaotic construction of criminal laws. Criminal statutes are often historical amalgams, with crimes and sentences being adjusted on a need to need basis or is often dictated by political pressure resulting in utter inconsistency and irrationality of penalty structure.

Commission Reports on Need for Sentencing Guidelines

In March 2013, the Committee on Reforms of Criminal Justice system, popularly referred to as the Malimath Committee, which was established by the Ministry of Home Affairs, in its report emphasised the need for having sentencing guidelines. The committee was of the view that even though the Indian Penal Code prescribes the offences and maximum and minimum punishment for the same, the judge yet has wide discretion in awarding the sentence within the statutory limit. There is no guidance for the Judge with regard to selecting the most appropriate sentence given the circumstances of the case and each judge exercises discretion accordingly to his/her own judgement. This unguided discretion has led to there being no uniformity in the judgements delivered.

Even the Law Commission of India in its 47th report, further elaborating on the same, said that a proper sentence is a composite of many factors like the nature of offence, the circumstances extenuating or aggravating the offence, prior criminal record of the offender, the age of the offender, the background of the offender with reference to education, home life, mental education of the offender, prospective rehabilitation of the offender etc. The Committee, to bring about certain regulation and predictability in the matter of sentencing, recommended for a statutory committee to lay guidelines under the Chairmanship of a former Judge of Supreme Court or a former Chief Justice of a High Court experienced in criminal law with other members representing the prosecution, legal profession, police, social scientist and women representative.

The Draft National Policy on Criminal Justice, popularly known as the Madhava Menon Committee, in its report stated that:

“Given the limited options in choice of punishments now available in the statutes and the inadequate deterrence in the sentence often imposed, there needs to be some serious rethinking on the philosophy, justification and impact of sentencing in the criminal justice administration. The quantum of fines were prescribed more than a century ago and the imprisonment in practice is reduced to a much shorter period through a variety of practices even when it is for life. Equality in sentencing is not pursued vigorously and there is no serious attempt yet to standardize the sentencing norms and procedures. The objects of punishment are not served in many cases as a result of such incoherent sentencing practices”.

The Madhava Menon Committee further recognised the need to have a radical change in the law and practise of sentencing and that a set of sentencing guidelines may be statutorily evolved to make the system consistent and purposeful.

 The Supreme Court of India on the Need for Sentencing Guidelines

Justice S.B Sinha in his judgment in the case of State of Punjab vs. Prem Sagar [(2008) 7 SCC 550], pointed out that in our judicial system, we have not been able to develop legal principles as regards sentencing and even the superior courts have just made observations to this regard but have never issued any guidelines for the same whereas other developed countries have done so.

The Hon’ble Supreme Court of India even in the famous case of Bachan Singh vs. State of Punjab [(1980) 2 SCC 684], apart from the constitutionality of death penalty, also addressed the issue of sentencing guidelines. The majority was of the view that standardisation of sentencing discretion is a matter of legislative policy and hence, it is up to the legislature to formulate guidelines if it deems fit and since the legislature had not formulated sentencing guidelines when enacting the Code of Criminal Procedure in 1973, the Court was of the view that Parliament did not want to reduce or cabin judicial discretion. The Court in the Bachan Singh case however went ahead and formulated guidelines for imposing death penalty, specifically interpreting the term ‘special reasons’ in Section 354(3) Cr.P.C., set forth what is known as the ‘rarest of rare case’ doctrine. This doctrine lists circumstances that may be considered by courts in determining whether death penalty could be awarded in a particular case or not. These guidelines were held to be not exhaustive and further were elaborated in subsequent cases. However, Justice Bhagwati, disagreeing with the majority, in his dissent in the Bachan Singh case was of the opinion that unfettered and unchartered discretion conferred on any authority, even if it be the judiciary, throws the door open for arbitrariness, for after all a judge does not cease to be a human being subject to human limitations when he puts on the judicial robe and the nature of the judicial process being what it is, it cannot be entirely free from judicial subjectivism.

 The UK Model

 The UK could perhaps be a model for moulding our sentencing policy. The well-established council of sentencing has given clear guidelines on sentencing- how sentencing is to be done in various capacities. The council also invites public consultations to ensure sentencing meets demands of public justice. The objective of the council reads: ‘The Sentencing Council for England and Wales promotes greater consistency in sentencing, whilst maintaining the independence of the judiciary. The Council produces guidelines on sentencing for the judiciary and criminal justice professionals and aims to increase public understanding of sentencing.’

There is a clear list of mitigating and aggravating circumstances- sentencing can be altered based on these. This has led to great uniformity in sentencing policy as well as practices. The discretion within which the courts can sentence is governed by guidelines applied across the country in a uniform way.

The Coroners and Justice Act, 2009 also imposes a wide range of duties on the new council in addition to the obvious function of producing guidelines. The Council also has to publish a resource assessment of, as well as monitor, the operation and effects of its guidelines. In addition it has to draw conclusions about the factors which influence sentences imposed by the courts, the effect of the guidelines on consistency in sentencing and the effect of the guidelines on public confidence in the criminal justice system.

Conclusion

The question, is sentencing is an art or a science, is an elusive one. The answer to who should be sentenced, to what effect and for how long lies in a rationalised system. Inputs from the society, functionaries of the justice system as well as experts on the most effective sentencing policy is crucial. The purposes of sentencing- why we punish in the first placeshould be served in each sentence- no matter how small or large.

There is a need for developing a consistent policy relating to sentencing in India to curb the evil of disparity in sentencing, as also emphasised by several commission reports and Supreme Court judgments. In this regard, a sentencing commission, like the one in the UK, can be set up to formulate a policy and draft guidelines to ensure consistency in sentencing in India. A Sentencing Commission for India, like the one suggested by the 47th Law Commission Report, comprising of former Judges of both Supreme Court as well as of several High Courts experienced in criminal law with other members representing the prosecution, legal profession, police, social scientists and women representatives can be set up as a statutory committee to lay down sentencing guidelines, which would serve the larger interest of the society while not compromising on the principles of reformation/retribution and also would be in consonance with the spirit of the Indian Constitution and fundamental principles of criminal justice.

(Vishavjeet Chaudhary is a Barrister-at-Law (Inner Temple), Door Tenant at Lamb Building (A London based Barrister Chambers) and Advocate at the Supreme Court of India.. He is LL.B. (Hons.) (University of Kent); and LL.M. (Cambridge University) Arindam Bharadwaj is a Final Year Law Student at the Jindal Global Law School, Sonepat, Haryana.

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Legally Speaking

The doctrine of anticipatory bail and judicial discretion under Section 438 of the Code of Criminal Procedure

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INTRODUCTION

The provision provided for in section 438 of the Code of Criminal Procedure- Direction for grant of bail to a person apprehending arrest which is also referred to as anticipatory bail in common parlance is a bail sought for, in anticipation of the arrest. The provision of anticipatory bail has been added in the Code of Criminal Procedure, 1973 because of the social stigma that is associated with the arrest of a person. That is to say, society attributes negative values to an arrested person and looks on with great ignominy. Moreover, though the police most of the time work in the furtherance and within the sweep of its duty but are sometimes influenced politically. This kind of bias can lead to needless physical and mental harassment to the person detained, metaphorically speaking, even though he has clean hands. The political rivalry which is intended to degrade the image and bring disgrace by implicating him in a false case takes a toll on the personal liberty of the person. This is where the role of Judiciary steps in, in adjudicating and applying the wide discretionary power the Indian Legislature has vested it with. The Code of Criminal Procedure (Amendment) Act, 2005 on the recommendations of the 203rd Report of the Law Commission of India conferred the jurisdiction on the High Court and the Court of Sessions for a direction granting bail to a person apprehending arrest under Section 438(1) of Cr.P.C. While making such direction under subsection (1), the High Court or the Court of Sessions may direct in the light of the facts and circumstances of the case, “as it may think fit”, after taking into consideration the factors laid down in subsection (1). The judicial discretionary power under Section 438, Cr.P.C., is of a wide ambit, the same can be ascertained by the legislative intent which is manifested in the verbatim of the section, specifically the use of “as it may think fit” in subsection (2). Therefore, the legislature has conferred this wide discretionary power in the higher echelons of the judiciary to avoid the possibility of flawed decision making, however, to rule out the risk in totality the decision of the High Court and the Court of Sessions can be subjected to revision and appeal. After having reflected on the abovementioned provision, the problem before the researcher is- considering the judicial trend of a few cases, one of them being a recent case of the year 2019- P Chidambaram v. Directorate of Enforcement; the purview of the judicial discretionary power under Section 438, Cr.P.C., has been generalised, to not be applied to cases of ‘economic offences’. On the other hand, checks and balances in the form of broad guidelines have already been laid down in the landmark case of Gurbaksh Singh Sibbia v. the State of Punjab so the discretion is not left unregulated. Further, the aforementioned case states that “the generalisation of any sort destroys the very purpose of grant of judicial discretion by the legislature”. So, the article focuses on the question that- What has been the approach of the Indian Judiciary vis-a-vis the judicial discretionary power vested with it in Section 438, Cr.P.C.- broad guidelines or generalised and narrow rules? Further the article would also be taking into consideration how the doctrine of anticipatory bail came into existence?

The emergence of the doctrine of Anticipatory Bail provided for in Section 438, Cr.P.C.

The Code of Criminal Procedure, 1898 did not accommodate a provision corresponding to present section 438 with respect to the grant of anticipatory bail. Anticipatory bail was, however, granted in certain cases under the High Courts’ inherent powers though the preponderant view negated the existence of any such jurisdiction. In the Amendment Act, 1955 the words “suspected of the commission of an offence” was added to the Code of Criminal Procedure, 1898 concerning the provision of bail, i.e. Section 497- “When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.” These words were interpreted to mean that the Legislature has conferred wider powers on the court. The amended section lays down that if a person appears before the Court, he can be released on bail by the Court. The Madhya Pradesh High Court, therefore, went ahead with the concept of anticipatory bail in the case of Abdul Karim Khan v. State of Madhya Pradesh and ordered that the applicant shall not be arrested by the police and remain on bail till the decision of the case. However, State of Madhya Pradesh v. Narayan Prasad Jaiswal overruled the above-mentioned case on the ground that, bail could not be granted to a person who had not yet been arrested for an actual charge of any offence or even on suspicion of his complicity in any offence and who was not required to surrender to any custody under any order of arrest but who apprehended that they would be arrested as persons accused of or suspected of the commission of an offence. So, even before the recommendations made by the 41st Report of the Law Commission of India in 1969 with respect to the inclusion of a provision corresponding bail in anticipation of arrest, there had already been a conflict of opinions within the Indian Judiciary in this regard. The Law Commission in its 41st Report recommended that provision relating to anticipatory bail should be introduced as Section 497-A in the Code of Criminal Procedure, 1898. The Commission viewed this as a necessity because of the increase in the number of cases pertaining to political rivalry wherein sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them by getting them detained in jail for some days. The Central Government after considering the recommendations introduced clause 447 in the draft Bill of the new Code of Criminal Procedure, 1970 to confer express powers concerning anticipatory bail on the High Court and the Sessions Court. The Law Commission of India in its 48th Report reconsidered the recommendations made in the 41st Law Report and proposed measures to prevent the provision provided for in Section 438 from abuse by dishonest petitioners. The final order should mandatorily be made after notice to the Public Prosecutor. The initial order being an interim order. Moreover, when the court is satisfied with the directions; being necessary and for the interest of justice only then it is allowed to issue such directions. Furthermore, the court should record reasons for issuing directions under the said section.

Thus, clause 447 of the draft bill appeared in the form of Section 438 of the Code of Criminal Procedure, 1973 which provided for the “Directions for grant of bail to person apprehending arrest”.

Judicial Discretion vis-a-vis Section 438 Cr.P.C.

‘Judicial discretion’ has been remarked by Lord Mansfield as “Discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular. The words “may if it thinks fit” used in Section 438(1) and the absence of any specific restraints on the exercise of the power to grant “anticipatory bail” clearly indicates that the legislature intended to confer and has in fact conferred a very wide discretion on the High Court and the Court of Sessions to grant “anticipatory bail”. The Law Commission of India in the 41st Report ingeminated the principles concerning bail. One of the relevant principles in this regard is that “bail is a matter of discretion if the offence is non-bailable’’. Therefore, such discretion can only be exercised for non-bailable offences. Sandhawalia, J., of Punjab & Haryana High Court in Gurbaksh Singh v. State stated that the discretion in Section 438, Criminal Procedure Code, should not be exercised with regard to an offence punishable with death or imprisonment for life unless the Court at that very stage is satisfied that such a charge is false or groundless. Under Section 438, Cr.P.C., discretionary power has been conferred on the Court to grant pre-arrest bail. The judicial discretion vested in the Court requires it to be appropriately exercised with the proper application of mind in determining whether a case is a fit case for grant of anticipatory bail or not. The court while dealing with an application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. Discretion must be exercised on the basis of available material and facts of a particular case. It is really necessary that the judicial discretion exercised with respect to Section 438, Cr.P.C. has to be a cautious one. The court under Section 438, Cr.P.C. in the exercise of the judicial discretion cannot act on the basis of whims and fancies just because the discretion conferred is wide and norms have not been prescribed for that matter. The discretion exercised shall appear a just and a reasonable one. Also, anticipatory bail is not just about directions being granted on the basis of judicial discretion, the accused has to make out a case wherein he has been accused of the commission of a non-bailable offence and there must be a reasonable apprehension in his mind that he would be arrested based on such accusation. Furthermore, The Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra observed that the law of bail dovetails two conflicting interests namely, the obligation to shield the society from the hazards of those committing and repeating crimes and on the other hand absolute adherence to the fundamental principle of criminal jurisprudence – the presumption of innocence and the sanctity of individual liberty. Therefore, the judicial discretion in the said section, i.e. 438, Cr.P.C. must be exercised with due consideration to not only the interest of the society but also the interest of the accused.

An analysis of the approach adopted by the Indian Judiciary- broad guidelines v. narrow rules in regard to Section 438, Cr.P.C.

The Law Commission of India in the 41st Report contemplated the question of providing for conditions under which anticipatory bail could be granted. But, it was concluded that it is not practicable to enumerate the conditions exhaustively. Laying down of conditions would amount to prejudging the case. Therefore, the discretion was conferred with the higher echelons of the judiciary with a view that the superior courts would exercise this discretion properly. It is noteworthy to be informed about certain case laws wherein various courts have decided on the point that economic offences cannot come under Section 438, Cr.P.C. as they are supposed to be categorised in a different class and, therefore, direction for anticipatory bail cannot be granted. The Supreme Court of India in State (CBI) v. Anil Sharma the court noted that the provision under Section 438, Cr.P.C. has to be used sparingly, specifically in the case of economic offences, that constitute a class apart. Furthermore, in Directorate of Enforcement v. Ashok Kumar Jain the Supreme Court of India noted with regards to anticipatory bail that, in offences relating to economy and matters involving finance, the accused is not entitled to anticipatory bail. The Supreme Court of India in another case, Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation again reiterated that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. In the recent case of P Chidambaram v. Directorate of Enforcement, the same principle has been upheld. On the contrary, in Gurucharan Singh v. State, the court observed that there cannot be an inexorable formula in the matter of granting bail. Furthermore, in the case of Gurbaksh Singh Sibbia v. State of Punjab which is treated as an authority in law several propositions have been laid down with respect to judicial discretion in Section 438, Cr.P.C. It, thus, runs as- generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion; no two cases are alike on the facts and therefore, courts have to be allowed a little free play if the conferment of discretionary power is to be made meaningful. Further, the same case observed a somewhat contrary approach and held that it is not proper to hold that in serious offences involving blatant corruption at the highest rungs of the executive and political power the discretion under Section 438, Cr.P.C. should not be exercised. It is not possible to assess the blatantness of corruption at the stage of anticipatory bail. The court further negated the stand of devising a formula that will confine the power to grant anticipatory bail within a straitjacket. A contemporary case of the year 2020, Sushila Aggarwal v. State held that the principle that anticipatory bail should not be granted normally- including the cases of economic offences, etc are not good in law and, thus, overruled the principle that “economic offences to be exonerated from the grant of anticipatory bail”. Having said that, the case of Gurbaksh Singh Sibbia v. State of Punjab a five-judge constitution bench laid down an 8 point-code that acts as a guide in exercising discretion under Section 438, Cr.P.C. until overruled by a larger constitution bench. This eight-point code as has been mentioned previously negates the idea of encompassing or restricting the judicial discretion within a straitjacket. Classifying “economic offences as a class apart” clearly narrows down the ambit of judicial discretion in the said section and, the same is against the legislative intent and the authority laid down in Sibbia. This falls under the formulation of rigid rules without analysing the uniqueness of the facts and circumstances on a case-to-case basis. Furthermore, the generalisation of the matters vested in the discretion of the judiciary manifestly frustrates the idea of conferring wide discretionary power under Section 438, Cr.P.C. Therefore, only and only broad guidelines that do not let the judicial discretionary power go unguided is intended by Section 438, Cr.P.C.

CONCLUSION

The emergence of the doctrine of anticipatory bail has been an issue of disagreement between the courts even before the recommendation in that regard was made by the 41st Report of the Law Commission of India. A provision like that of Anticipatory Bail goes a long way in preserving the interest and liberty of the accused on the basis of the principle of Presumption of Innocence that has been ingrained in the Criminal Jurisprudence. Simultaneously, the interest of the society cannot be ignored and, therefore, the exercise of judicial discretion has to be a cautious one. Secondly, the researcher submits that the generalisation and narrowing down of judicial discretion into rigid rules has never been the intention of the legislature and, therefore, frustrates the whole idea of conferring wide discretionary powers on the High Court and the Court of Sessions under Subsection (2) of Section 438, Cr.P.C. So, only and only broad guidelines that do not let the discretionary power go unguided should be relied on, for that matter.

The Code of Criminal Procedure, 1898 did not accommodate a provision corresponding to present Section 438 with respect to the grant of anticipatory bail. Anticipatory bail was, however, granted in certain cases under the High Courts’ inherent powers though the preponderant view negated the existence of any such jurisdiction.

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Permitting use of illegally intercepted conversations in court would violate citizens’ fundamental rights: Delhi HC

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While according the highest priority to the fundamental rights of the citizens, the Delhi High Court has in an extremely commendable, cogent, courageous, composed and convincing judgment titled Jatinder Pal Singh vs Central Bureau of Investigation in CRL. M.C. 3118/2012 that was pronounced finally on January 17, 2022 has observed that if illegally intercepted messages or audio conversations pursuant to an order having no sanction of law are permitted, it would lead to manifest arbitrariness and would promote scant regard to the procedure and fundamental rights of the citizens. We thus see that the single Judge Bench of Justice Chandra Dhari Singh of the Delhi High Court thus set aside the two orders that were passed by the Special Judge which had framed charges against one Jatinder Pal Singh in 2012 in a case registered by CBI on the basis of evidence gathered through such illegal means. It ought to be mentioned that the case alleged that there was a criminal conspiracy with the object to show favor qua recognition of the courses and grant of permission pertaining to Gian Sagar Medical College and Hospital, Patiala as mandated by the Indian Medical Council Act, 1956 and the relevant MCI Regulation and Rules for admission into 4th year of the MBBS course for the academic session 2011-2012. It also deserves mentioning that the controversy had arisen out of an alleged bribery for allowing the admissions by bypassing the deficiencies in the process and the petitioner was accused of having acted as a middleman in the alleged bribery.

To start with, it is first and foremost stated in para 1 of this judgment that, “The Petitioner has approached this Court by way of the instant petition under Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as “Code”) for setting aside the order of the Court below dated 1 st June 2012, whereby common charges had been framed against the accused including Jatinder Pal Singh (hereinafter referred to as “Petitioner”) and the consequential order dated 4 th June 2012 framing individual charges against the Petitioner in the case titled as “CBI v. Ketan Desai and Others” pending before Special Judge CBI-5, Patiala House Courts, New Delhi.”

FACTUAL MATRIX

To put things in perspective, the Bench then envisages in para 2 that, “Before adverting to the submissions made by the learned counsels for parties, it is essential to highlight the factual background of the instant matter which is stated hereunder:

i) The impugned proceedings have arisen from the First Information Report registered by the CBI vide Case bearing No. RC 02(A)/2010/CBI/ACU-IX/New Delhi on 22nd April 2010, under Sections 7/8/11/13(2) read with Section 13(l)(d) of Prevention of Corruption Act, 1988 (hereinafter referred to as “PC Act”) and Section 120-B of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”), on the allegations that Dr. Ketan Desai, President of the erstwhile Medical Council of India (hereinafter referred to as “MCI”), entered into a criminal conspiracy with the Petitioner, Dr. Sukhvinder Singh and others with the object to show favor qua recognition of the courses and grant of permission pertaining to Gian Sagar Medical College and Hospital, Patiala (hereinafter referred to as the “GSMCH”) as mandated by the Indian Medical Council Act, 1956 and the relevant MCI Regulation and Rules for admission into 4th year of the MBBS course for the academic session 2011-2012.

ii) The prosecution’s version is that on the basis of reliable and specific information, CBI Special Unit, New Delhi had placed the mobile phones under telephonic surveillance during the period when MCI received the application for renewal of permission from GSMCH, Patiala for admission into 4th Batch of the MBBS course. The investigation further revealed that criminal conspiracy to obtain favors in the form of recommendation for permission for admission into fourth year batch for MBBS course began after deficiencies were pointed out during first inspection of GSMCH, Patiala. Accordingly, the aforementioned FIR was registered against the accused persons on the allegations as aforesaid.

iii) Subsequently, on 22nd April 2010 recovery was made wherein Dr. Kamaljeet Singh was intercepted while allegedly delivering a sum of Rs. 2 crores, as illegal gratification for the aforementioned purpose, at the residence of the Petitioner by the income tax authorities and liquor bottles were seized by the police authorities.

iv) Upon the completion of the investigation, the Final Report under Section 173 of the Code was filed on 16th September 2011 under Sections 7/8/12/13(2) and 13(1)(d) of the PC Act along with Section 120-B of the IPC in the Court of Special Judge for CBI Cases, Patiala House Courts, New Delhi.

v) Trial Court took cognizance of the same on 10th October 2011. The copies of the documents relied upon were supplied to the accused persons including the Petitioner. After hearing the arguments on charge, the Trial Court on 1st June 2012 passed a common order on charge under Sections 7/8/12/13(2) and 13(1)(d) of the PC Act along with Section 120B of the IPC as well as an individual order on charge on 4th June 2012 against the petitioner under Section 12 of the PC Act.

vi) Aggrieved by the aforementioned orders, the Petitioner has approached this Court, under Sections 397/401 read with Section 482 of the Code, praying for setting aside the impugned orders.”

Quite significantly, the Bench mentions in para 74 that, “The entire controversy has arisen out of an alleged bribery made for allowing the admissions into the 4th Batch of MBBS of the GSMCH, Patiala by bypassing the alleged deficiencies in the process. The Petitioner is accused of having acted as a middleman in the alleged bribery. However, no direct or indirect evidence implicating the petitioner is available on record that can be legally relied on to proceed with the matter. The evidence collected and produced by the investigation agency before the Court below is fraught with illegalities and no sufficient cause is made to proceed with the case qua the petitioner for the reasons as detailed hereunder:

i) The main basis of the matter for which the bribe was allegedly given i.e., the auditorium was not actually required to be constructed as a condition precedent for conducting admissions of the 4th batch of MBBS course. The factum has been verified by the appropriate authorities at various stages as stated above, hence there is no rationale of committing the alleged offence of giving of bribe.

ii) Further, the Approver on the basis of whose statement petitioner has been made an accused, was impleaded in the case without sanction from the appropriate authorities and his statement is thus inadmissible.

iii) Nothing as alleged in the recorded conversation intercepted by the investigating agency forms direct basis or has any connection whatsoever with the need for bribery, nor is there any rationale for offering of the alleged bribe. The recovery made has also been explained and accounted for by the Petitioner with evidence as being a part of the advance received by the Petitioner in lieu of sale of his village land.

iv) Tape records of the calls intercepted in the instant case are not admissible since the due procedure for such interception as mandated by the Telegraph Act and the Rules framed thereunder has not been followed. Further, even the same has not been verified in the FSL report. No further witness/evidence to implicate the petitioner is on record.

v) Additionally, the public servant who is alleged to have been involved in the said transaction has already been discharged and cannot, therefore, be prosecuted under the PC Act.

Thus, in an offence alleging conspiracy, where the main conspirator has been discharged and in the absence of evidence implicating the petitioner as a co-conspirator alleged to be a middle-man, there is no point in continuing with the case and keep the entire criminal justice machinery running endlessly especially in light of the fact that the criminal proceedings had been initiated ten years back and has stayed pending ever since.”

No less significant is what is stated in para 76(a) and in short it must be stated here that, “The most relevant piece of evidence relied upon by the prosecution, i.e., the copy of the voice-recording of the telephonic conversation allegedly involving the petitioner, is not even admissible in light of the judgment of the Hon’ble Supreme Court in the case of Anvar P.V. (Supra), the same ratio was followed by this Court in its judgment dated 20th November, 2014 in Ankur Chawla v. CBI, Crl. M. C. No. 2455/2012.”

Shortly stated, it is then encapsulated in para 77 that, “Even otherwise, the prosecution has till date not advanced anything qua the genuineness of the voice recording involving the petitioner. In the absence of a forensic analysis and report (or for that matter, any other certifying instrument) pertaining to the authenticity of the voice recording in question, it is not unreasonable to conclude that the prosecution’s case at trial would be materially impacted. In the case of Nilesh Dinkar Paradkar v. State of Maharashtra, 2011 (4) SCC 143, the Hon’ble Supreme Court has held as follows: ―

31. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification.”

Most significantly, the gist of para 78 that must be mentioned here is this: “Apart from the aforesaid, in this case, the public servant who was said to be involved in the alleged transaction has already been discharged and is not being tried for any offence under the PC Act. That leaves only the private individual i.e., the petitioner/alleged middleman to face trial for charges under Section 12 of the PC Act, read with Section 120B of the IPC, and that too without any material in the charge-sheet that the Petitioner either instigated the public servant or entered into a conspiracy with the public servant and/or the bribe giver. As such, the facts and circumstances of the present case fall within the scope of the third category set out in Section 107 of the IPC. Therefore, permitting the trial to continue would be untenable in light of the judgment of the Hon’ble Supreme Court in CBI v. V.C. Shukla, (1998) 3 SCC 410, which similarly dealt with accused who had acted as middlemen.”

Adding more to it, the Bench then enunciates in para 80 that, “Lastly, the charge-sheet against the petitioner is underpinned by the allegation of abetment under Section 12 of the PC Act without there being any admissible evidence of the demand or offer of bribe. Needless to state, such a trial would be an exercise in futility, more so because there are judicial precedents to the effect that a demand of illegal gratification is imperative for punishment (for abetment as an offence) under Section 12 of the PC Act. In fact, the judgment of the Hon’ble Supreme Court in State of Punjab v. Madan Mohan Lal Verma, (2013) 14 SCC 153, which reads as under, is applicable here: ―

11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution.

The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. (Vide Ram Prakash Arora v. State of Punjab [(1972) 3 SCC 652 : 1972 SCC (Cri) 696 : AIR 1973 SC 498] , T. Subramanian v. State of T.N. [( 2006) 1 SCC 401 : (2006) 1 SCC (Cri) 401] , State of Kerala v. C.P. Rao [(2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714] and Mukut Bihari v. State of Rajasthan [(2012) 11 SCC 642 :(2013) 1 SCC (Cri) 1089 : (2013) 1 SCC (L&S) 136].).”

As a corollary, the Bench then hastens to add in para 81 that, “Therefore, in light of the facts of the case along with the material on record, and since there is no substance in the accusation levelled nor any admissible evidence is on record incriminating the petitioner, the petitioner is entitled to relief under Section 482 of the Code.”

Going ahead, the Bench then holds in para 82 that, “In view of these facts and circumstances, as well as the provisions of law, their application to the case at hand and the analysis made, this Court is inclined to allow the instant petition.”

Furthermore, the Bench then also holds in para 83 that, “For the reasons recorded above, this Court allows the instant petition as prayed for. The impugned orders dated 1st June 2012 and 4th June 2012 passed by Learned Special Judge, (CBI-05), New Delhi whereby charges have been framed qua the Petitioner, are hereby set aside.”

Going forward, the Bench then held in para 84 that, “Accordingly, the petition and pending applications stand disposed of.”

Finally, the Bench then concludes by directing in para 85 that, “The judgment be uploaded on the website forthwith.”

In essence, the key takeaway from this most noteworthy judgment by the Delhi High Court is that permitting use of illegally intercepted conversations in courts would violate citizen’s fundamental rights.

So, it can be logically deduced from this that the use of illegally intercepted conversations in courts cannot be permitted. No denying it.

Most significantly, the gist of para 78 that must be mentioned here is this: “Apart from the aforesaid, in this case, the public servant who was said to be involved in the alleged transaction has already been discharged and is not being tried for any offence under the PC Act. That leaves only the private individual i.e., the petitioner/alleged middleman to face trial for charges under Section 12 of the PC Act, read with Section 120B of the IPC, and that too without any material in the charge-sheet that the Petitioner either instigated the public servant or entered into a conspiracy with the public servant and/or the bribe giver. As such, the facts and circumstances of the present case fall within the scope of the third category set out in Section 107 of the IPC. Therefore, permitting the trial to continue would be untenable in light of the judgment of the Hon’ble Supreme Court in CBI v. V.C. Shukla, (1998) 3 SCC 410, which similarly dealt with accused who had acted as middlemen.”

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Cyber world: Advantages and its emerging threats

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In this modern era of globalization whole world gets connected through digitalization. Growing global economy and Innovation in Science and Technology lead to promote digitalization in our daily life. According to data of the Department of Promotion of Industry and Internal Trade states that approximately 50,000 Startups grow up in India every fiscal year. Every start-up has a base of Innovation and Technology. The companies and Commerce industry promotes digitalization in businesses because of its leads to optimum use of resources and less time and energy consumption. In this modern era, any sector of businesses cannot survive in a competitive world without their business website of them. Our education system transferred into digital space amid the Covid-19 Pandemic. Online Classes and online learning take place of Traditional Teaching techniques of the education system. Digitalization of the education system leads to increase efficiency in the learning process and decreases the cost of seeking education which may benefit the weaker section of society.

Cyber Security is becoming an important concern in every country of the world. In this era of globalization without strong cyber security, we cannot survive in global competition. Every nation of this world put forward its steps to make a strong Nation because of cyber security. Making Cyber Attacks on high-profile agencies of the enemy nation such tactics usually used by the dominant nation for making pressure on the Enemy nation by stealing highly sensitive data of this nation. The cyber cold war is an emerging threat to the world. We are required to come forward together to make Treaty on Cyber Security Issues. We are required to make a Universal Code of Conduct for Cyber Security Issues which will be followed by every united nation. For example, like United Nations made Treaty for International Peace between Nations by restraining them to make Arms in high capacity and restraining them to promote Nuclear Programme in high frequency.

CONTEMPORARY ISSUES OF CYBER WORLD

THREAT TO PRIVACY:

The government of India consistently decides the involvement of technology in public policies. The government has passed Aadhaar Act in the year 2016 which was made mandatory for every citizen of India to link his Aadhaar Card to other Important Identity documents. Government makes Aadhar Card as a Proof of Identity for every citizen of India. Making it mandatory for every citizen of India to link his Aadhaar Card to Pan Card may cause losing personal data by government machinery. The government of India may use these data for undue advantage of them. In many incidents, Leakage and stealing of data happens which may affect on the privacy of citizens of India. Right to Privacy is a Fundamental Right of Citizen of India which is enshrined in Article 21 of the constitution of India which is violated by government authorities. In the landmark Case of K.S. Puttaswamy versus Union of India (10 AIR SCC 2017) the honourable Supreme Court of India states that the Right to Privacy is an essential fundamental right of every citizen of India.

CYBER FRAUDS AND SIDE EFFECTS OF DIGITALISATION

Cyber Security is an important concern emerging in our society. Many fraud companies conceal the data of customers by using tactics of misleading Advertisements. Digitization has a proven impact on reducing unemployment, improving quality of life, and boosting citizens’ access to public services but its side effects are data theft of customers, Breaching of Copyright of Companies, Plagiarism in social media websites, Social disconnectivity.

According to data from the National, Crime Records Bureau states that 50,030 cybercrime cases were reported in the year 2020-21 in India. Cyber Fraud is the key motive and intent in 30,218 cases recorded in frauds. In India, more than 2200 cyber-attacks are committed per day, whereas cyber security is the biggest concern that emerges in society.

Increases in the number of cyber-attacks result in government increased budget and attention on cyber security. The First Cyber Attack occurred in the late 1970s but over time nature of cyber-attack changed. Phishing, data breach, cyber extortion, Identity Theft, Harassment are types of Cyber Crimes. Increasing digitalization leads to excessive use of Technology which may affect on Mental Health of People. The development of the Mind is depending on the growth of Mental Health which might be diminished due to excessive use of technology, social media by Youngsters and Adults.

CYBER WAR AND TERRORISM

In the era of digitalization, we are going to become Technology Savy but the increasing number of International Cyber Attacks cause cyberwar between two nations which is harmful to International Peace. Cyber War and Cyber Terrorism are both terms interlinked with each other. Cyber Terrorism A criminal act perpetrated by using computers and Telecommunication Capabilities resulting in violence and destruction and disruption of the Services of an enemy nation by creating fear within the Population.

The government made provision in the Information Technology Act, 2000 under Section 66 F about committing the offense of Cyber Terrorism will be Punishable by Imprisonment to Life. A recent example of cyber terrorism is Pegasus Spyware which deals with collecting personal data of High-Profile Personalities, Politicians, Supreme and High Court Judges, Military Personnel of India. Perpetrators Intention behind that is tracing personal chats and other sensitive Information of that Personalities. They used such Information for Undue Advantages.

E-GOVERNANCE AND INCLUSIVENESS OF PUBLIC

E-Governance is Important for maintaining Transparency and Accountancy in Government. Politicians are Representatives of Common People and Public Servants are the strongest pillars of Administration. They are Responsible for Citizens of India because they are elected by the Peoples of India. Promoting digitalization in government policies and Promoting E-Governance in Administration will be effected on Accountability of Government.

E-Governance gives access to common people to encourage them to participate in the decision-making process. Common People can raise questions regarding the incompetency of government. The public can access grievance redressal machinery to resolve issues that arise due to the Incompetency of the government. Inclusiveness of the Public leads to strengthening democracy in Nation.

EASE OF DOING AND PROMOTE INNOVATION

Increasing use of Technology and Internet businesses leads to ease of doing for Promoters. Process of Registration of Companies to promoting businesses on the Internet all these things are included in Ease of doing of businesses. Every Startup Included Innovation and Technology hence cyber security concerns arise for such businesses. Many times, businesses are suffered due to poor cyber security which may affect on businesses of them. Examples like the stealing of sensitive data of the Company.

LEGISLATIVE FRAMEWORK OF CYBER LAWS AND INTELLECTUAL PROPERTY ISSUES

We have come across instances of data theft, phishing, and Cyberbullying, Cyber Terrorism, etc. but Remedies are available against such instances in the legislative framework of Cyber Laws. Some short overviews of those laws are given below.

Sec. 65 of the IT Act, 2000 pertains to Tampering with computer source documents, whoever knowingly or intentionally conceals, destroys, or alters any computer source code used for a computer, computer program, or computer system which are required to be maintained or kept by law. For the time being in force shall be punished with Imprisonment up to Three Years or with a fine which may extend up to two lakh rupees, or with both.

SEC. 66 COMPUTER RELATED OFFENCES

If any person dishonestly or fraudulently, does any act such as accessing or securing access to a computer, computer system, computer network he shall be punishable with imprisonment for a term which may extend to three years or with a fine which may extend to five lakhs rupees or with both.

SEC. 66 C PUNISHMENT FOR IDENTITY THEFT

Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique Identification Feature of any person shall be punished with imprisonment of either for a term which may extend to Three Years and shall also be liable to fine which may extend to Rupees One lakh.

SEC. 66 D PUNISHMENT FOR CHEATING BY PERSONATION

Any Person or entity creates any phishing websites, Fake Identity on the Internet for intent to steal sensitive data by deceiving any person, which act may cause to damage or harm to that person in body, Mind, Reputation or Property, is said to “Cheat” Such offense will be punishable with imprisonment of either description for a term which may extend to Three Years and shall also be liable to fine which may extend to one lakh rupees.

SEC. 66 E PUNISHMENT FOR VIOLATION OF PRIVACY

Whoever, intentionally or knowingly captures, publishes, or Transmits the Image of a Private Area of any Person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to Three Years or with fine not exceeding two lakh rupees or with both.

Sec. 66 F Cyber Terrorism

Whoever with intent to threaten the unity, integrity, and security or sovereignty of Nation and attempting to penetrate or access a computer resource without authorization shall be punishable with Imprisonment of life.

Section 420 of the Indian Penal Code, 1860 states that cheating by personation or inducing to deliver any property shall be punishable with imprisonment for a term of three years which may extend to seven years, and a fine.

INTELLECTUAL PROPERTY ISSUES

According to section 14 of the Copyright Act, “Copyright means exclusive Right to do authorize

To Reproduce a computer program in any material form including the storing of it in any medium by electronic means. But In many Instances, problems relating to the Infringement of Copyright and Trade Marks arise in cases where cybersecurity-related issues take place.

E-COMMERCE AND DIGITAL MONEY

E-Commerce means buying and selling goods or things over the Internet. Many instances arise where data theft, fraud profiles actively work on the Internet and social media to induce people to buy a specific type of thing at a very cheap price.

Please read concluding on thedailyguardian.com

They promote such things on the Internet very systematically to take undue advantage of Buyers. We are required to take action against this fraudulent act done by fraudsters at the time such concerns arise.

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Cybersquatting: A plague upon the corporate identity

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INTRODUCTION

The advent of internet era has witnessed a huge surge in profits of various e-commerce and has shoved every potential business to adopt the online mode. The domain name which is an online website locator or the address of a specific entity on the internet links the company to its prospective customers and eases the process of doing business. The Internet Domain Name System (DNA), was designed from the perspective of identifying such websites by their domain names. However, the arena of internet is not bereft of manipulation. With practices of phishing, spam, impersonation, malware, counterfeits, etc gaining prominence, cybersquatting is paving its way as well. It is the practice were an individual or a business registers a domain name, identical or deceptively similar to the trademark or the domain name of other prominent business in order to gain potential customers of such business or to either sell it to them at a cost higher than that of registration, in case such prominent business has not priorly registered their domain name.

CYBERSQUATTING: A PRODUCT OF DOMAIN NAME REGISTRATION

Cybersquatting could be considered the most prominent forms of utilising the existing loopholes in law, which in this case would be the domain name registration i.e., registration on the basis of ‘first come first serve’. Since there is no pre-requisite condition as to the validity of domain name and no absolute or relative ground of refusing registration, the registrar has no other option but to register even those domain names which are product of cybersquatting. As businesses have inferred the gravity of internet, so have the cybersquatters, who are constantly posing challenges to multi-national companies, diverting their customers as well as profit.

The Covid-19 pandemic fuelled the practice of cybersquatting. As businesses were getting accustomed to the online mode, cybersquatters had already played their part. WIPO alone handled cases with an increment of 11% in 2020 in comparison to 2019 showing the spike during the pandemic.

It is crucial to understand that now domain name is not restricted solely for the purpose of identifying websites but has become a corporate asset, in importance, equal to that of a trademark. In India, since there is no legislation that explicitly prohibits cybersquatting or settles domain disputes, the role of judiciary is imperative.

The complainant can either accept the selling price of the domain name as quoted by the cybersquatter or can file for litigation or for dispute resolution under UDRP.

REMEDIES AVAILABLE IN INDIA LITIGATION

The complainant party can directly approach the court for settling the dispute. Applying the Trademarks Act 1999, the two available reliefs are: remedy of infringement, granted when the trademark is registered and the remedy of passing off, granted when the registration is not pre-requisite to avail such relief.

Indian judiciary has pronounced some landmark judgements upon cybersquatting. For instance, Yahoo Inc. v Akash Arora & Anr., where trans-border reputation was given priority even though Yahoo Inc. was not a registered trademark in India nor had its business running in India. Further, in Titan Industries Ltd v Prashanth Koorapati & Others, the Delhi High Court granted ad-interim injunction restraining the domain name holder from using the trade name “Tanishq” or any other name which is deceptively similar. Thereby, remarking upon the prospective aim of deceiving the customers of the plaintiff company.

2.2.2 DISPUTE RESOLUTION

To solve the conflict between trademark and domain name, Internet Corporation for Assigned Names and Number (ICANN), developed UDRP- Uniform Domain Name Dispute Resolution Policy in August 26, 1999. A complainant party can initiate the process by filing a complaint before the approved dispute resolution service providers listed by ICANN on the grounds that: the domain name is “identical or confusingly similar to a trade mark or service mark” of the complainant; registrant has no right or legitimate interest in respect of the domain name; and it is been registered and used in bad faith. For availing the remedy under UDRP, it is to be established that the domain name was used and registered in bad faith.

There are six ICANN approved dispute resolution service providers: Arab Center for Domain Name Dispute Resolution (ACDR), Asian Domain Name Dispute Resolution Centre, Canadian International Internet Dispute Resolution Centre (CIIDRC), The Czech Arbitrati0n Court Arbitration Center for Internet Disputes, National Arbitration F0rum and lastly, WIPO.

Amongst all, WIPO is the leading dispute service provider. WIPO following UDRP guidelines sets up a neutral panel of qualified people for resolving disputes within two months. The speedy resolution is why UDRP could be the future of dispute resolution, particularly for multi-national companies. There could only be three possible decision which could be granted by the panel: decision in favour of complainant party and transferring of the domain name to them; decision in favour of complainant party and cancelling the domain name; lastly, decision in favour of domain name registrant, specifying whether the dispute did not fell under the ambit of rule 4 (a) of UDPR policy and also to specify whether the complaint was filed in bad faith. However, there are no monetary damages granted in UDPR domain name disputes nor any injunctive relief is granted.

Various country code domain name registries also have started to adopt the UDRP or similar policies. As an exemplar, India has its own registry by the name ‘INRegistry’ under the authority of National Internet Exchange of India (NIXI). Its sets forth terms and conditions governing the ‘.in’ or ‘. Bharat’ domain name.

CONCLUSION

In contemporary times, corporate identity has not remained independent of domain name. Priorly domain name was used as a locator of websites, it has now been valued beyond that and has become a corporate asset which demands protection and instances of cybersquatting to be curbed. Apart from posing constant challenges to commercial businesses, cybersquatting damages their goodwill and forces their owners to resolve such issues in a limited time period.

Comparing the remedies accessible, it is believed that UDRP will gain prominence over judicial intervention in near future, reasons being speedy dispute resolution, low cost and no court appearances. However, UDRP should be applied to other types of domain name as well in order to increase its scope.

Talking about statute, India has no legislation in particular prohibiting cybersquatting unlike developed nations like USA. Since there is no explicit prohibition, the domain name is registered on a first come first serve basis which provides for a potential loophole in law, often misused by people. With a sudden spike of cybersquatting during pandemic, it is evident that India is in need of explicit legislation pertaining to cybersquatting/domain name dispute which should govern every aspect of it.

With a proper legislation in hand, cybersquatting could be prevented at the stage of registration which in turn would save precious judicial time, unnecessary expense of money on the part of complainant and an overall easement of process. It would also prevent selling of domain name by the cybersquatter for a high price and would thus, curb such practices of benefitting at the loss of others.

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UNIFORM CIVIL CODE IS A MUCH NEEDED LEGISLATION

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The Uniform Civil Code means a uniform personal law for all citizens of the country. This code will replace the existing religious personal laws in India and have a uniform law that will cater to all the citizens, irrespective of their religion. This has been envisaged by the makers of our Constitution under Article 44. But it has been strongly opposed because it is considered violative of Article 25 of the Constitution since it does not let people enjoy the personal laws. The article 44 of the Directive principle state policy state that it is the duty of the state to secure a Uniform Civil Code for the citizens throughout the country. One country, one rule is another name for it. The main objective behind implementation of a uniform Civil code in India is that it sets a law to govern the personal matters of all the citizens irrespective of religion. Personal laws are different from public laws as they cover marriage, inheritance, adoption, divorce and maintenance and the India practices a model of secularism in which it has made special provisions for people of different religions and the main idea behind Uniform Civil Code is to treat everyone equally irrespective of religion. Now the problem exists in the fact that there are differences and discrepancies within the personal laws. There is no uniformity. Also, there has been instances where the personal laws denied the rights of women or did not even give them rights. To counter these shortcomings, the Uniform Civil Code can be enacted. In India the main cause for communal conflicts among the common people are the personal laws The Uniform Civil Code is a uniform method or a standardized law which governs citizens as a uniform law. One problem with an absence of having UCC throughout India is that it may go against the basic principles of equality that is one of the fundamental rights of the constitution because by providing personal laws to a certain section of people we are determining the credibility of the secular ethos in the country.

As a matter of fact, it is known that personal laws of communities Gender Injustice is inbuilt. This is a result of the social and economic conditions under which these have been evolved and this is one of the Important reasons that why there is a need to introduce reforms in personal laws or bring about UCC to not only ensure equality between men and women but also in order to bring about gender justice. A uniform civil code if implemented shall lay the grounds for women to overcome various social evils that exist in the society such as the bigamy system and the dowry system which make women feel inferior and degraded. In order to bring uniformity, the courts have often said in their judgements that the government should move towards a UCC. The judgement in the Shah Bano case (1985) is well known where The Supreme Court’s decision in this case is regarded as a major milestone in highlighting the importance of UCC. The case concerned women seeking maintenance after being divorced under triple talaq. The women won in all lower courts, so the husband filed an appeal to the Supreme Court, which was dismissed because the Supreme Court ruled in favour of the wife as per the All India Criminal Code’s “maintenance of wives, children, and parents” provision (Section 125). In addition, the court recommended that a uniform civil code be established. However, widespread agitation was carried out due to religious sentiments attached to the law, and as an outcome, the then-government, under pressure, passed the Muslim Women’s (Right to Protection on Divorce) Act (MWA) in 1986, rendering Section 125 of the Criminal Procedure Code inapplicable to Muslim women. As a result, the court was correct in emphasising the importance of UCC for having a common basis for jurisdiction. Another case was the Sarla Mudgal Case (1995), which dealt with issue of bigamy and conflict between the personal laws existing on matters of marriage. In this case, relating to the issue for solemnizing of a second marriage by a Hindu spouse after converting to Islam. The court determined that a Hindu marriage solemnised in accordance with Hindu law may be dissolved only on one of the reasons listed in the Hindu Marriage Act 1955. Conversion to Islam and subsequent marriage would not automatically dissolve the Hindu marriage under the act, and therefore, a second marriage solemnised after conversion to Islam would constitute an offence under Section 494 of the Indian Penal Code (IPC). This made a need of UCC as it creates an ambiguous policy of marriage due to discrepancies between religious laws. By arguing that practices such as triple talaq and polygamy impact adversely the right of a woman to a life of dignity, the Centre has raised the question whether constitutional protection given to religious practices should extend even to those that are not in compliance with fundamental rights. While the criminal laws in India are uniform and applicable equally on all, no matter what their religious beliefs are, the civil laws are influenced by faith. Swayed by religious texts, the personal laws which come into effect in civil cases have always been implemented according to constitutional norms. The personal laws of Hindus and Muslims find their source and authority in their religious ancient texts. In Hinduism, personal laws are applicable to legal issues related to inheritance, succession, marriage, adoption, co-parenting, obligations of sons to pay their father’s debts, the partition of family property, maintenance, guardianship, and charitable donations. In Islam, personal laws apply to matters relating to inheritance, wills, succession, legacies, marriage, wakfs, dowry, guardianship, divorce, gifts, and pre-emption taking roots from Quran. Some more judicial decisions that can be taken into account are:- John Vallamattom Case (The case in which Section 118 of the Indian Succession Act was declared unconstitutional after John Vallamattom challenged it on the grounds that it discriminated against Christians by imposing unreasonable restrictions on their willed gifts for religious or charitable purposes. This demonstrated the inconsistencies under religious laws), Daniel Latifi Case (This case demonstrates how universally applicable law should prevail over unjust religious laws. In this case, Muslim Women’s Act (MWA) was challenged for violation of Articles 14,15 & 21 of the Constitution. The primary point of contention was the amount paid throughout the iddat period. The Supreme Court upheld the act’s constitutionality but interpreted it in accordance with Section 125 of the CrPC, holding that the amount received by a wife during the iddat period should be sufficient to support her during the iddat period as well as for the remainder of her life or until she remarries).

The UCC aims to provide protection to vulnerable sections as envisaged by Ambedkar including women and religious minorities, while also promoting nationalistic fervour through unity. When enacted the code will work to simplify laws that are segregated at present on the basis of religious beliefs like the Hindu code bill, Shariat law, and others. The code will simplify the complex laws around marriage ceremonies, inheritance, succession, adoptions making them one for all. The same civil law will then be applicable to all citizens irrespective of their faith. India faces a serious problem with personal laws due to their bias toward the upper-class patriarchal conceptions of society in all religions. As may be seen, panchayats continue to issue verdicts that violate our constitution, and no action is taken. Human rights are abused throughout our country through honour killings and female foeticide. By legalising personal laws, we’ve established a parallel court system based on thousands of ancient values. By eliminating all loopholes, the universal civil code would tip the balance in favour of society. While Muslims are permitted to marry many times in India, a Hindu or a Christian will face prosecution for doing the same. Similarly, there are significant disparities between many religious-related regulations. Equal laws in the areas of marriage, inheritance, family, and land are required. Here UCC serves as a saviour, bringing everything under one roof and assisting not only in ensuring greater equity but also in streamlining the legislative and judicial processes. The concept of a uniform civil code will also aid in reducing vote bank politics, which is practised by most political parties during every election. If all religions are subject to the same laws, there will be no room for politicising issues of discrimination, concessions, or special privileges enjoyed by a particular community on the basis of their religious personal laws. A Uniform Civil Code has become the hallmark of a modern progressive nation’s legal structure. It demonstrates the nation’s transition away from caste and religious politics. While our economic growth has been the fastest in the world, our social development has been non-existent. Indeed, it is possible to argue that we have degraded socially and culturally to the point where we are neither modern nor traditional. A unified civil code will aid in the advancement of society and help India achieve its goal of becoming a developed nation. As we all know, secularism is a critical aspect of our nation, as reflected in our constitution’s preamble. At the moment, we practise selective secularism, which means that we are secular in some areas but not in others. A Uniform Civil Code requires all citizens of India to adhere to the same set of laws, regardless of whether they follow Hinduism, Islam, Christianity or Sikhism. A Uniform Civil Code does not mean that people’s freedom of religion will be restricted; it simply means that everyone will be treated equally. That is authentic secularism. Additionally, as previously stated, in modern classification laws and religion are two distinct concepts, and thus entwining them will result in social disruption and inequality.

India is a country of diverse culture where the beliefs of the people are too vehement but with the right communication and education to all the religious groups, the implementation can take place efficiently and effectively. Special Marriage Act which has been enacted is hardly seen into practice since it is a mere option and not requisite, which further shows the importance of Uniform Civil Code. Thereafter, the culture of spreading inadequate information shall be dealt with regardless as it has become a trend in the country and could result to hindering proper implementation of the requisite laws like Uniform Civil Code. Uniform Civil Code is not a step to make India a Hindu State rather to bring about unity between different religions along with application of same provisions for all, leading to simplification of law and order for better results in the nation. Fear of the certain section of society who are subjected to the special rights, shall be addressed since such rights will have no impact or interference by enactment of the Uniform Civil Code, which shall be ensured to the society as this is one of their Fundamental Rights as under Article 15 of the Indian Constitution. Right to Religion under Article 25 of the Indian Constitution is not specifically for men but also females of the nation. The lack of political will to implement Uniform Civil Code is quite evident, it is important for the government to take strong steps rather than fearing the sensitive issues, keeping the prosperity of the nation and its people in mind such step shall be encouraged. Eminent Jurist from all the religion shall form a committee to bring together the Uniform Civil Code so that all the religions are kept in mind while drafting the Uniform Civil Code without any personal biases towards a particular religion. Uniform Civil Code is surely a sensitive issue but with the right information and communication it can bring about an ever lasting change in the nation along with the right growth and development. The developed countries like USA, Canada, Australia, UK, Russia etc. have adopted the Uniform Civil Code as a developing law for the betterment of their society, culture, religion and to remove discrimination amongst the communities. Uniform Civil Code is the only reason for these countries to achieve their higher goals. USA have a secular law that applied equally and uniformly upon all the citizens of their state. The USA have English common law, which makes every person equal and remove the discrimination between the majority and minorities. Even people from other countries also have to follow common law of their country. Because of uniform civil code USA has achieved its goals and is successful in developing in all aspects which include economically, socially and religiously as well. In India Goa is the only state in India having Uniform Civil Code as special marriage act 1954 is applicable all over the Goa. This was introduced by Portuguese in 1870 as goa family law but after the liberation of Goa this law was retained and became special marriage act in 1954. This marriage acts provides a civil marriage of two person of different sex irrespective of their religion. This law prevail in Indian to have their marriage outside the customs of their personal law. This law is still followed in Goa as it punishes polygamy which means having more than one spouse at a time. Hence no person can have more than one marriage at a time. Also this act states that at the time of divorce both husband and wife will be treated equally with regards to property and will not be discriminated. However, this act discriminates on a ground that a Hindu male can have more than one spouse living if the earlier wife fails to deliver a boy till she attain the age of 30 years, this shows that even this civil act is discriminatory.

Our country has diverse culture, tradition, religion to make them more progressive then, we need to remove discrimination on basis of religion, caste, sex. Uniform Civil Code is the modern way to treat everyone equal in every aspect. UCC involves secularism, it is both glorified as well as criticised but in today’s scenario implementation of UCC is must to stop the internal war of the country and to make the nation growing traditionally as well as economically. Some communities think that Uniform Civil Code is ban for them as it is against their religion. Nevertheless it is modernization of their religious law which will boost up their equality and will make them rich traditionally and socially. According to Article 14 of the Indian constitution, every single citizen is equal in the eyes of law and court. But in India, we have personal laws based on the particular religion. For example, a Muslim can marry multiple times and he will not be prosecuted but if there is any Hindu, Christian or Sikh then he will be prosecuted by the court which is against the saying of Article 14 of Indian constitution. This is not equality in real means. If we want equality then there should be the same laws related to marriage, adoption, divorce, inheritance, family, land etc. Then the exact definition of equality will be defined. In some aspects personal laws are violation of article 14 of the constitution of India. Taking into account as stated by The Supreme Court judge-Justice Y.V. Chandrachud, rightly remarked, a common civil code will also help in strengthening the cause of national integration by removing conflicting interests. So to address the concerned controversy over UCC we would like to conclude by stating that the manner in which UCC was dealt with by the British in 1840, the issue is discussed with same apprehensions even 200 years later. The Shariat Application Act of 1937 protects the application of different laws as far as the Muslim Personal Law is concerned, but despite this, many personal laws of Muslims have been codified. The last in the row is the law of 2019, protecting Muslim women’s right of marriage. Equal rights to property for Hindu women come in bits and pieces. In 1935, Hindu women got limited right to property. In 1956, she got equal absolute right to property in succession and finally, a daughter got equal rights to the coparcenary property and agricultural or rural lands in 2005. Equal rights cannot be ensured just by one stroke. It requires consistent efforts and commitment for a long period of time. Our purpose of giving the example of Hindu law dealing with right to property of women was to emphasise that there was no unification in property rights of Hindu women. It was different at different points in time. UCC is something which can never be answered in a straight Yes or No. It has no one word answer. It is a process which has been going on and must continue to ensure rights of all members of society. The unification of code is not possible until society is serious about codification of the code. Codification is a pre-requisite for unification.

Our country has diverse culture, tradition, religion. To make them more progressive we need to remove discrimination on the basis of religion, caste, sex. Uniform Civil Code is the modern way to treat everyone equal in every aspect. UCC involves secularism, it is both glorified as well as criticised but in today’s scenario implementation of UCC is must to stop the internal war of the country and to make the nation grow traditionally as well as economically.

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Family court with territorial jurisdiction is the competent authority to give a child in adoption: Kerala HC

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Without leaving any room for even an iota of doubt, the Kerala High Court has in a learned, laudable, landmark and laudable judgment titled Thomas P & Anr. V. State of Kerala & Ors in CRL. A. No. 971 of 2019 which was delivered on November 5, 2021 has laid down explicitly that the Family Court with the respective territorial jurisdiction is empowered to give a child in adoption. The Court noted that as per law, the appellants were eligible to adopt the child. Moreover, it must be mentioned that presently the Family Courts are designated as Adoption Court as per O.M. No. D12-10890/2016 of the High Court of Kerala. As such, the decision of the District Judge was set aside and the appeal was allowed. The District Court was also directed to return the records for presentation before the proper court.

To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Justice M.R. Anitha of Kerala High Court sets the ball rolling by first and foremost putting forth in para 1 that, “This Crl.A has been filed against the order in O.P. (Adoption). No. 75/2016 dated 15.03.2016 of District Court, Kollam. According to the learned counsel for the appellant, respondents 2 and 3 are husband and wife. The 2nd respondent is the brother of the 2nd appellant and 3rd respondent is the wife of the 2nd respondent. The respondents 2 and 3 are the biological parents of Kumari, Maria Johnson aged 8 years old, who is the 4 th girl child of the said couple. The appellants are childless couple; both of them had undergone treatment for infertility for a long period. Doctors confirmed that it will not be possible for the appellants to become biological parent of a child. The 2nd appellant had to undergo uterus removal surgery. Hence, at present there is no chance for the 2nd appellant getting conceived. Kumari. Maria Johnson is the 4th girl child of the respondents 2 and 3. While so, the respondents 2 and 3 expressed their willingness to give in adoption of Kumari. Maria Johnson to the appellants. Hence, with a view to legalize the entire proceedings, O.P.(Adoption) No. 75/2016 has been filed by the appellants before the District Judge, Kollam. By the impugned order, the learned District Judge dismissed their O.P., finding that the court has no jurisdiction to entertain or adjudicate the issue of adoption mooted by the appellants and aggrieved by the same appellants approach this Court.”

As we see, the Bench then observes in para 3 that, “Heard both sides. Section 2(2) of the Juvenile Justice (Care and Protection of Children) , 2015 reads as follows: “‘adoption’ means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child.”

Furthermore, the Bench then mentions in para 4 that, “Section 2(23) of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as follows: “Court’ means a Civil Court, which has jurisdiction in matters of adoption and guardianship and may include the District Court, Family Court and City Civil Courts.”

What’s more, the Bench then added in para 5 that, “Section 2(52) of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as follows:

“ ‘relative’, in relation to a child for the purpose of adoption under this Act, means a paternal uncle or aunt, or a maternal uncle or aunt, or paternal grandparent or maternal grandparent.””

Going ahead, the Bench then points out in para 6 that, “According to the learned counsel for the appellants, being the brother’s child of the 2nd appellant, the child supposed to be adopted will come within the definition of ‘relative’ defined under Section 2(52) of the Juvenile Justice (Care and Protection of Children) Act, 2015. Section 56(2) is also relevant which reads as follows:

“Adoption of a child from a relative by another relative, irrespective of their religion, can be made as per the provisions of this Act and the adoption regulations framed by the Authority.””

Moving on, the Bench then also stated in para 7 that, “Next the learned counsel drew my attention to Section 101(5) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short the Act) which deals with the appeals and reads thus:

“Any person aggrieved by an order of the Children’s Court may file an appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974)”.”

To put things in perspective, the Bench then states in para 8 that, “So this is the proper forum for entertaining an appeal against the impugned order. The learned counsel drew my attention to the provisions of the Juvenile Justice (Care and Protection of Children) Rules, 2014 ( In short the rules). Rule 40(2) of the Juvenile Justice (Care and Protection of Children) Rules, 2014 reads as follows:

“For all matters relating to adoption, these rules and guidelines issued from time to time by the State Government and notified by the State Government shall apply. In the absence of such rules the guidelines issued by the Central Adoption Resource Agency and notified by the Central Government under subsection (3) of Section 41 of the Act shall apply.””

As it turned out, the Bench then lays bare in para 9 that, “Rule 41(C) of the Juvenile Justice (Care and Protection of Children) Rules, 2014 deals with the procedure for adoption reads as follows:

“The specialised Adoption Agency along with the prospective adoptive parent(s) shall file a petition in the Court having jurisdiction for obtaining the necessary adoption orders under the Act and these Rules within ten days from the acceptance of referral by prospective adoptive parent(s) and shall take necessary steps to get the process of legal adoption completed at the earliest.””

In addition, the Bench then points out in para 10 that, “The learned counsel also drew my attention to the Adoption Regulations, 2017. Regulation 4 of Adoption Regulations, 2017 deals with child eligible for adoption reads as follows:

The following shall be eligible for adoption, namely:-

“(a) any orphan or abandoned or surrendered child, declared legally free for adoption by the Child Welfare Committee;

(b) A child of a relative defined under sub-section (52) of Section 2 of the Act;

(c) child or children of spouse from earlier marriage, surrendered by the biological parent(s) for adoption by the step-parent.””

Not stopping here, the Bench then notes in para 11 that, “Regulation 5(7) of Adoption Regulations, 2017 reads as follows:

“ The age criteria for prospective adoptive parents shall not be applicable in case of relative adoptions and adoption by step-parent.””

Interestingly enough, the Bench then further noted in para 12 that, “The learned counsel further drew my attention to Regulation 55 Adoption Regulations, 2017 reads as follows:

“Legal procedure:- 1)The prospective adoptive parents, who intend to adopt the child of a relative as defined in sub-section (52) of Section 2 of the Act, shall file an application in the competent Court under sub-section 2 of Section 56 of subsection (1) of Section 60 of the Act in case of in-country relative adoption or inter-country relative adoption, respectively, alongwith a consent letter of the biological parents as provided in Schedule XIX and all other documents as provided in Schedule VI.

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