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Supreme Court issues guidelines on payment of maintenance in matrimonial matters

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In a significant and praiseworthy judgment titled Rajnesh vs Neha in Criminal Appeal No. 730 of 2020 (Arising out of SLP (Crl.) No. 9503 of 2018 delivered as recently as on November 4, 2020, a two Judge Bench of Supreme Court comprising of Justice Indu Malhotra and Justice R Subhash Reddy has issued commendable, cogent and comprehensive guidelines on payment of maintenance in matrimonial matters. The Bench minced no words to hold that maintenance in all cases will be awarded from the date of filing the application for maintenance. There is no reason why these guidelines must not be implemented at the earliest.

To start with, Justice Indu Malhotra who authored this latest, landmark and laudable judgment for herself and Justice R Subhash Reddy first and foremost sets the ball rolling by observing right at the outset that, “The present Criminal Appeal arises out of an application for Interim Maintenance filed in a petition u/S. 125 Cr.P.C. by the Respondent-wife and minor son. The Respondent No.1-wife left the matrimonial home in January 2013, shortly after the birth of the son-Respondent No. 2. On 02.09.2013, the wife filed an application for interim maintenance u/S. 125 Cr.P.C. on behalf of herself and the minor son. The Family Court vide a detailed Order dated 24.08.2015 awarded interim maintenance of Rs. 15,000 per month to the Respondent No.1-wife from 01.09.2013, and Rs. 5,000 per month as interim maintenance for the Respondent No. 2-son from 01.09.2013 to 31.08.2015; and @ Rs. 10,000 per month from 01.09.2015 onwards till further orders were passed in the main petition.”

As it turned out, the Bench then points out that, “The Order of the Family Court vide Criminal Writ Petition No. 875/2015 filed before the Bombay High Court, Nagpur Bench. The High Court dismissed the Writ Petition vide Order dated 14.08.2018 and affirmed the Judgment passed by the Family Court.”

To put things in perspective, the Bench then puts forth that, “The present appeal has been filed to impugn the Order dated 14.08.2018. This Court issued notice to the wife and directed the Appellant-husband to file his Income Tax Returns and Assessment Orders for the period from 2005-2006 till date. He was also directed to place a photocopy of his passport on record. By a further Order dated 11.09.2019, the Appellant-husband was directed to make payment of the arrears of Rs. 2,00,000 towards interim maintenance to the wife; and a further amount of Rs. 3,00,000, which was due and payable to the wife towards arrears of maintenance, as per his own admission. By a subsequent Order dated 14.10.2019, it was recorded that only a part of the arrears had been paid. A final opportunity was granted to the Appellant-husband to make payment of the balance amount by 30.11.2019, failing which, the Court would proceed under the Contempt of Courts Act for willful disobedience with the Orders passed by this Court.”

Quite remarkably, the Bench then after considering everything holds that, “In the facts and circumstances of the case, we order and direct that:

(a)        The Judgment and order dated 24.08.2015 passed by the Family Court, Nagpur, affirmed by the Bombay High Court, Nagpur Bench vide Order dated 14.08.2018  for payment of interim maintenance @ Rs. 15,000 p.m. to the Respondent No.1-wife and Rs. 10,000 p.m. to the Respondent No. 2-son, is hereby affirmed by this Court;

(b)        The husband is directed to pay the entire arrears of maintenance @ Rs. 15,000 p.m. within a period of 12 weeks from the date of this Judgment, and continue to comply with this Order during the pendency of the proceedings u/S. 125 Cr.P.C. before the Family Court;

(c) If the Appellant-husband fails to comply with the aforesaid directions of this Court, it would be open to the respondents to have the Order enforced u/S. 128 Cr.P.C., and take recourse to all other remedies which are available in accordance with law;

(d) The proceedings for payment of interim maintenance u/S. 125 Cr.P.C. have been pending between the parties for a period of over 7 years now. We deem it appropriate that the Family Court decides the substantive application u/S. 125 Cr.P.C. in Petition No. E-443/2013 finally, in light of the directions/guidelines issued in the present judgment, within a period of 6 months’ from the date of this judgment.

The Registry is directed to forward a complete copy of the pleadings, along with the written submissions filed by the parties, and the record of the proceedings in the present Criminal Appeal, to the Family Court, Nagpur. The present Criminal Appeal is disposed of accordingly.”

While appreciating the difficulties faced by woman in getting maintenance, the Bench then while accepting the framing of guidelines on maintenance then also observes that, “Given the backdrop of the facts of the present case, which reveal that the application for interim maintenance under Section 125 Cr.P.C. has remained pending before the Court for seven years now, and the difficulties encountered in the enforcement of orders passed by the Courts, as the wife was constrained to move successive applications for enforcement from time to time, we deem it appropriate to frame guidelines on the issue of maintenance, which would cover overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.”   

Most remarkably, the Bench while dwelling on the final directions on maintenance to wife holds that, “In view of the foregoing discussion as contained in Part B – I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India.

(a)Issue of overlapping jurisdiction

To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. We direct that:

(i) where successive claims for maintenance are made by a party under different statutes, the Court would consider an adjustment or set off, of the amount awarded in the previous proceeding/s, while determining whether any further amount is to be awarded in the subsequent proceeding;

(ii) it is made mandatory for the applicant to disclose the previous proceeding and the orders passed therein, in the subsequent proceeding;

(iii) if the order passed in the previous proceeding/s requires any modification or variation, it would be required to be done in the same proceeding.

(b) Payment of Interim Maintenance

The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings before the concerned Family Court/District Court/Magistrates Court, as the case may be, throughout the country.

(c)  Criteria for determining the quantum of maintenance

For determining the quantum of maintenance payable to an applicant, the Court shall take into account the criteria enumerated in Part B – III of the judgment.

The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.

(d) Date from which maintenance is to be awarded

We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance, as held in Part B – IV above.

(e)Enforcement/Execution of orders of maintenance

For enforcement/execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128 of the Cr.P.C., as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.”

Finally, it is then held by the Bench that, “Before we part with this judgment, we note our appreciation of the valuable assistance provided by the Ld. Amici Curiae Ms. Anitha Shenoy and Mr. Gopal Sankaranarayanan, Senior Advocates in this case. A copy of this judgment shall be communicated by the Secretary General of this Court, to the Registrars of all High Courts, who would in turn circulate it to all the District Courts in the States. It shall be displayed on the website of all District Courts/Family Courts/Courts of Judicial Magistrates for awareness and implementation.”

To conclude, the two Judge Bench of the Apex Court comprising of Justice Indu Malhotra and Justice R Subhash Reddy issued detailed and historic guidelines on payment of maintenance in matrimonial matters as stated above. It is rightly acknowledged in this latest, landmark and laudable judgment that, “Maintenance laws have been enacted as a measure of social justice to provide recourse to dependant wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy.” There can be no denying it!

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Legally Speaking

Matrimonial discord and ‘irretrievable breakdown of marriage’ as a ground for divorce

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BEFORE the Supreme Court of India, on a regular basis, petitions are filed seeking exercise of power by it under Article 142 of the Constitution of India to dissolve the marriages which are totally unworkable, emotionally dead, beyond salvage and thus, have broken down irretrievably. Under the existing framework of law in India, ‘irretrievable breakdown of marriage’ is not recognized as a ground for obtaining a decree of divorce. Therefore, even in cases, for instance, where both the parties have been residing separately for over two decades; where custody of child is not in issue; where even though such situations exist but, one of the parties still does not give consent for divorce; the other party is constrained to approach the Supreme Court seeking divorce on grounds of irretrievable breakdown of marriage.

It is pertinent to note that as early as in the year 1978, the Law Commission of India in its 71st Report titled ‘The Hindu Marriage Act, 1955 – Irretrievable Breakdown of Marriage as a Ground of Divorce’ (“71st Report”) had examined this issue in detail and recommended amendments to be made in the Hindu Marriage Act, 1955 (“Hindu Marriage Act”) so as to make irretrievable breakdown of marriage as a new ground for granting decree of divorce. Accordingly, a Bill – the Marriage Laws (Amendment) Bill 1981, was brought in the Lok Sabha inter alia to amend the Hindu Marriage Act but, the Bill lapsed due to dissolution of the Lok Sabha. Till date, the said amendment has not been implemented. The consequence thereof is increase in hostile litigation between parties and increased burden on the Supreme Court. It is to be remembered that the Supreme Court is not a court for hearing regular appeals from the High Court but, is a court to decide constitutional issues of public importance.

However, in the absence of there being any specific provision for grant of divorce on the grounds of irretrievable breakdown of marriage, the Supreme Court is constrained to entertain such matters in those circumstances where “wedlock became a deadlock”.

COMPARATIVE ANALYSIS

The “irretrievable breakdown” theory was first introduced in New Zealand in the year 1920 by the Divorce and Matrimonial Causes Amendment Act wherein, a separation agreement for three years or more was made a ground for making a petition to the court for seeking divorce and the court had the discretion, whether to grant it or not. In the case of Lodder v. Lodder, 1921 New Zealand Law Reports 786, it was observed that the Legislature intended to consider the three-year separation period as sufficiently a good ground for divorce. It held that “when the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous”. It must be noted that in the aforementioned Act, the term ‘irretrievable breakdown of marriage’ was not defined as it was believed that every sick marriage had its own peculiar reason to be so and that there could be no fixed definition for it. Further, no guidelines were also laid down either by the Legislature or by the courts for exercise of discretion in such matters.

Under the Canadian Divorce Act also, “irretrievable breakdown of marriage” is clearly recognised as a ground for divorce, apart from the normal fault grounds of divorce such as adultery, cruelty, bigamy, etc. In the United Kingdom, the concept of matrimonial offence for divorce was replaced by the breakdown theory by the enactment of the Divorce Reform Act, 1969 whereby, a middle course was adopted. It made irretrievable breakdown of marriage the sole ground of divorce along with providing certain guidelines for obtaining evidence of breakdown. The Matrimonial Causes Act, 1973 (U.K.) allows for divorce to be obtained on the ground of irretrievable breakdown of marriage, if the court finds one or more of circumstances like – adultery, unreasonable expectation of cohabitation, desertion for at least two years, separation of two years in case of divorce by mutual consent, and a separation of five years if mutual consent is not present.

In India, the Special Marriage Act and the Hindu Marriage Act were enacted to govern marriages and divorces in the country. Over the years, the provisions of the said Acts have proved to be insufficient to deal with the situations where the marriage between the parties have broken down irretrievably. Despite the fact that the Law Commission of India had earlier submitted its Report in 1978 as well as subsequent judgments of the Supreme Court in Ms. Jorden Diengdeh vs. S.S. Chopra,AIR 1985 SC 935 and Naveen Kohli vs. Neelu Kohli,AIR 2006 SC 1675 where, necessity to introduce irretrievable breakdown of marriage as a ground for obtaining divorce was recommended, till date, nothing has been done.

MARRIAGE LAWS (AMENDMENT) BILL, 2010

In fact, in the year 2009 also, the Law Commission of India suo motu took up the matter and in its 217th Report titled ‘Irretrievable Breakdown of Marriage – Another Ground for Divorce’ (“217th Report”) recommended that ‘Irretrievable breakdown of marriage’ should be incorporated as another ground for grant of a decree of divorce. Pursuant thereto, the Marriage Laws (Amendment) Bill, 2010 (“proposed Amendment”) was introduced in Lok Sabha which proposed to insert Section 13-C to the Hindu Marriage Act thereby, making irretrievable breakdown of marriage as a separate ground for divorce under Hindu Marriage Act. The Bill introduced certain safeguards to protect the interests of the woman and children which may suffer as a consequence of the divorce granted on ground of irretrievable breakdown of marriage. The Bill proposed to add Section 13-D to the Hindu Marriage Act, whereby the respondent-wife was provided the right to oppose the petition on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage. Further, if the grant of divorce decree is opposed, then the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned. Upon doing so, if the Court is of the opinion that the divorce shall result in grave financial hardship to the respondent and that it would be wrong in all circumstances to grant it, then the court shall dismiss the divorce petition, or stay the proceedings until arrangements have been made to its satisfaction to eliminate the financial hardship.

Another provision was added namely, Section 13-E which provided that the court shall not pass a decree of divorce under Section 13-C unless the Court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made, consistent with the financial capacity of the parties to the marriage. The expression “children” would include minors, unmarried or widowed daughters not financial independent; and children with special physical or mental health conditions who require to be looked after and who do not have the financial resources to support themselves.

However, the said Bill also remained at ‘proposal stage’. Hence, the only recourse left for the parties to dissolve a dead marriage is to approach the Supreme Court. This has also left the discussion open for posing arguments for and against inclusion of irretrievable breakdown of marriage as a ground for divorce.

ARGUMENTS IN FAVOUR OF PROPOSED AMENDMENT

Before deciding as to whether the proposed Amendment is beneficial or not, the first step is to examine whether parties would want to continue in a relationship where there is total disappearance of emotional substratum. A dead marriage alive is more conducive to immorality and potentially more prejudicial to the public interest than the dissolution of the marriage bond. A dead marriage affects the mental health conditions of parties, welfare and growth of the child born out of wedlock, and leads to hostile litigation and harassment.

Under the existing framework of law, divorce can only be granted on the grounds as specified in Section 13, 13A and 13B of the Hindu Marriage Act. Section 13 provides for various grounds for divorces like cruelty, adultery, etc. is, thus, based on ‘fault theory’. Whereas, Section 13A deals with judicial separation and Section 13B provides for divorce on grounds of ‘mutual consent’. However, the aforementioned provisions does not at all deal with a situation where even though, the marriage has irretrievably broken down, still one of the spouses refuses to give consent for divorce. In such circumstance, should the parties be compelled to keep the marriage alive?

PROBLEM WITH ‘FAULT THEORY’

Under the “fault theory” of divorce, guilt has to be proven on the part of one of the spouse. The nature of the guilt being proved must pass the litmus test as prescribed by the law, and only then a decree of divorce will be granted. But, in such circumstances, sometimes proving the fault becomes difficult due to lack of evidence, non-production of evidence, etc. For instance, proving mental cruelty is very difficult. Hence, the burden to prove fault also make parties to engage in mud-slinging which brings the institution of marriage into disrepute.

Another limitation of the “fault theory” of divorce is that it requires both – an innocent party in need of relief and a guilty party against whom the relief is sought. No relief would be granted if it is found that both the parties are at fault. In such circumstances, a gradual shift from “fault theory” to ground of “irretrievable breakdown of marriage” will come to the rescue of the parties. For instance, in Rishikesh Sharma v. Saroj Sharma, (2007) 2 SCC 263 the Supreme Court after considering that the wife, who has been living separately for more than four decades, had instituted frivolous cases against the husband, observed that the marriage is dead from every angle and is impossible to revive and thus, no purpose would be served in keeping both the parties retained in marriage. Thus, it dissolved the marriage on the grounds of irretrievable breakdown of marriage.

DILEMMA OF ‘MUTUAL CONSENT’

Further, Sections 13(1-A) and 13B of the Hindu Marriage Act are insufficient to deal with all the situations pertaining to the matrimonial remedies. In this context, it is pertinent to understand the difference between obtaining a decree of divorce by mutual consent and obtaining a decree of divorce on the ground of irretrievable breakdown of marriage. The Law Commission of India in its 217th Report explained that ‘mutual consent’ requires the consent of both the parties and if one or the other does not cooperate, the said ground is not available. On the other hand, ‘irretrievable breakdown of marriage’ is a ground which the Court can examine and if the Court, on the facts of the case, comes to the conclusion that the marriage cannot be repaired/saved, divorce can be granted. The grant of divorce is not dependent on the volition of the parties, but on the Court coming to the conclusion, on the facts pleaded, that the marriage has irretrievably broken down. Thus, irretrievable breakdown of marriage as a ground for divorce comes as a possible recourse when both parties aren’t at consensus to obtain a divorce.

R. Srinivas Kumar v. R. Shametha, AIR 2019 SC 4914is a classic example of this kind. In this case, though, the husband and wife were living separately for 22 years but, the High Court dismissed the divorce petition filed by the husband on the ground that mental cruelty was not proved. The wife had also refused to give consent for divorce. The Supreme Court specifically held that separation of more than two decades was conclusive enough to prove that the marriage was irretrievably broken and even if, one of the parties does not give consent for divorce, under Article 142, it has the power dissolve the marriage. Hence, in the instant case, it proceeded to dissolve the marriage on payment of reasonable permanent alimony by the husband to the wife.

ARGUMENTS AGAINST THE PROPOSED AMENDMENT

Further, it is to be noted that the development of the “irretrievablebreakdown” theory occurred as a result of shift from the “fault theory” to “no fault theory” in divorce laws. Under Section 13B of the Hindu Marriage Act, divorce can be obtained by mutual consent without requiring one party to prove fault on part of the other. Additionally, under Section 13(1-A) of the Hindu Marriage Act, the parties may file for divorce if – (a) the parties don’t resume cohabitation after a period of one year or upwards after the passing of a decree for judicial separation, or (b) no restitution of conjugal rights happens between the parties for a period of one year or upward after the passing of a decree of restitution of conjugal rights. The Bombay High Court in Madhukar v. Saral, AIR 1973 Bom 55 observed that the enactment of Section 13(1-A) is a legislative recognition of the fact that if there has been a breakdown of marriage there is no purpose in keeping the parties tied together.

DIVORCE CAN ONLY BE GRANTED IN TERMS OF THE PROVISIONS OF HINDU MARRIAGE ACT

However, there have been many circumstances, where the courts have showed their reluctance in dissolving the marriage on grounds of irretrievable breakdown. Time and again, the courts have emphasized that since there is lack of legislative intent to introduce irretrievable breakdown of marriage as an additional ground for divorce, no divorce must be granted on such grounds by courts. In Reynold Rajamoni v. Union of India, AIR 1982 SC 1261 and Vishnu Dutt Sharma v. Manju Sharma, AIR 2009 SC 2254, the Supreme Court observed that when legislative provisions specify the grounds for granting a divorce, they constitute the only conditions on which the Court has jurisdiction to grant divorce. Granting a divorce on the ground of irretrievable breakdown, would mean adding a separate ground for divorce which can only be done by the legislature.

Irretrievable breakdown cannot be used as a magic formula to obtain divorce:

Also, another arguments against the proposed Amendment is that when the existing grounds for divorce aren’t proved, the concept of irretrievable breakdown of marriage shouldn’t be used as a magic formula to obtain a divorce decree. For instance, in cases, where the husband or wife utterly failed to prove grounds of cruelty, the Court held that the husband or wife will not entitled to a decree of divorce. In a country like India, where marriage is considered sacramental, allowing dissolution of the marriage in a light manner is unacceptable.

WELFARE OF CHILD IS OF PARAMOUNT CONSIDERATION

Other concerns raised were regarding welfare of child born out of the wedlock that is, whether he/she will be able to get the love and affection of parents in case the marriage is dissolved in a light fashion. For instance, in Hitesh Bhatnagar v. Deepa Bhatnagar, AIR 2011 SC 1637, the Supreme Court refused to grant divorce on ground of irretrievable breakdown of marriage in order to secure the future of the child born out of wedlock. Thus, divorce on such a ground becomes a disadvantage for the survival of the wife who is not financially independent and also, has the responsibility to fulfil the needs of the child born out of the marriage being dissolved.

NO ONE CAN BE ALLOWED TO TAKE ADVANTAGE OF THEIR OWN WRONG

Lastly, there are two other major grounds for opposing the proposed Amendment : firstly, it will allow the spouses to terminate the marriage at their will; and secondly, it will allow the guilty spouse to take advantage of his/her own fault. For instance in Chetan Dass v. Kamala Devi, AIR 2001 SC 1709, the Supreme Court refused to grant divorce on the grounds of irretrievable breakdown of marriage to the husband after observing that it was the husband who had meted out cruel treatment to the wife. Therefore, allowing the divorce in such circumstance would mean the husband is allowed to take advantage of his own wrong.

EXERCISE OF POWER BY SUPREME COURT UNDER ARTICLE 142 OF THE CONSTITUTION OF INDIA

Article 142 of the Constitution empowers the Supreme Court to pass such decree or order as may be necessary for doing complete justice between the parties in a cause of matter pending before it. Thus, the provision vests the Supreme Court with vast powers to issue any directions or order (irrespective of the fact whether the issue is covered by any legislative provisions exists or not) for the purpose of doing complete justice between the parties. Such an orders or direction is binding in terms of Article 141 of the Constitution of India. It is to be remembered that such a power is only vested with the Supreme Court and no other Court has similar power.

Talking about matrimonial matters, generally, the Supreme Court doesn’t exercise its power under Article 142 to dissolve the marriages. However, the recent trends have shown that where grave injustice is being caused; where parties are indulging in frivolous litigation, or where welfare of child is involved, etc. the Court has exercised its power and dissolved the marriage on grounds of irretrievable breakdown of marriage on payment of reasonable permanent alimony. In the landmark judgment – Anil Kumar Jain v. Maya Jain, AIR 2010 SC 229, the Supreme court held as under:

“(1) Although irretrievable breakdown of marriage is not a ground for divorce under Sections 13 or 13B of the Hindu Marriage Act, 1955, it can be applied to a proceeding under either of these provisions only if the proceedings are before the Supreme Court. Neither the civil courts or the High Courts can pass such orders.

(2) Only the Supreme Court in order to do complete justice, can by way of Article 142 of the Constitution, convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13B and pass a decree for mutual divorce, without waiting for the statutory period of six months.”

Since the year 1990, there are about 20 to 25 cases where the Supreme Court has exercised its powers under Article 142 to grant decree of divorce on the ground of irretrievable breakdown of marriage. But, in all such cases, power has been exercised with much care and caution, for the interest of both the parties to the marriage, and in exceptional circumstances only.

The purpose of exercising the power has been to put quietus to all litigations between the parties and to save them from further agony. It is pertinent to note that there is no straight-jacket formula which the Supreme Court applies for granting divorce on the grounds of irretrievable breakdown of marriage. It depends on facts and circumstances of each case. However, various judgments of the Supreme Court would show that the important facts which are considered while granting divorce by exercising power under Article 142 are:

Long period of continuous separation between the parties;

Numerous litigations initiated by parties against each other and which has been pending for years;

Harassment and mental agony being caused to the parties due to litigations;

No possibility of reconciliation or amicable settlement either through Court or through family members;

Interest of the child born out of wedlock. For instance, his custody, education, general welfare, etc.

Maintenance of the wife if she is dependent;

Alternate accommodation for the wife and the child born out of wedlock.

The judgment rendered by the Supreme Court in Naveen Kohli v. Neelu Kohli,AIR 2006 SC 1675 is a landmark judgment on this issue and is still being followed. In fact, relying upon the said judgment, in Sanghamitra Ghosh v. Kajal Kumar Ghosh, (2007) 2 SCC 220 and Sukhendu Das v. Rita Mukherjee, AIR 2017 SC 5092, the Supreme Court dissolved the marriage as there was total disappearance of emotional substratum. Therefore, in order to ensure that the parties may live peacefully in future, it put a quietus to litigation between the parties. This was also considered to be in the interest of the child. Also, in Satish Sitole v. Ganga, AIR 2008 SC 3093, the Supreme Court dissolved the marriage as both parties had been living separately for the past 14 years and there was no scope of any reconciliation despite the birth of a male child.

Increased burden on the Supreme Court and pendency of cases:

However, the effect of this is increased burden on the Supreme Court. It is in public knowledge that the courts in India are overburdened with cases and a matter instituted in a court takes years to get decided. As of September 2020, there are over 55,000 cases pending in the Supreme Court, 51 lakhs cases pending in the High Courts, and 3.5 crore cases pending in the subordinate courts across India. Considering the fact that the Supreme Court is not a regular court of appeal and a large number of cases are already pending, shouldn’t the Parliament implement the proposed Amendment?

After perusing the proposed Amendment and also, various judgments of the Supreme Court, as aforementioned, it is clear that both provide for adequate safeguard for protecting the interest of spouses and the child. However, in the absence of implementation of the proposed Amendment, the burden on the Supreme Court is unnecessarily being increased. There have been instances where though parties have not been residing together for more than a decade; all attempts of reconciliation failed; custody of child was also not in dispute even then, the Family Court or the High Court did not grant divorce on the sole ground that it is only the Supreme Court which can dissolve the marriage on grounds of irretrievable breakdown of marriage. Therefore, after spending years in litigation awaiting the judgment of courts below, the party ultimately is constrained to approach the Supreme Court. Such cases can be taken care of without approaching the Supreme Court if the amendment, as proposed, is implemented. It would save a lot of time and money of parties, prevent unnecessary harassment due to long-drawn litigations, and reduce the burden on the Supreme Court.

Conclusion:

Therefore, the time is ripe for the Parliament to implement the proposed Amendment and include irretrievable breakdown of marriage as an additional ground for divorce in the Hindu Marriage Act. This will ensure that the parties aren’t forced to continue in a marriage which has broken beyond salvage with no possibility of reconciliation. Moreover, it is both – in public interest and in the interest of parties and their family members concerned to dissolve an emotionally dead marriage. The proposed Amendment, if implemented, would solve many problems such as:

No separate petition under Section 125, CrPC would be required to be filed for claiming maintenance;

No separate petition would have to be filed seeking custody of the child;

Before granting divorce, it would be seen that adequate protection is given to the parties to protect their financial and other interests;

Mud-slinging which leads to unnecessary and long drawn litigations will be avoided, and;

Such issues can be resolved in Family Court itself without approaching the High Court or the Supreme Court for that matter, thus, reducing the burden on them.

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Legally Speaking

REVISITING CYBER DEFAMATION LAWS IN INDIA & COMPARISON WITH ENGLISH LAW

Vinakshi Kadan and Bhawna Gandhi

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Cyber Defamation has become a major issue because of its repercussions rising up out of the wide-spread Coverage, Instantaneous Communication, Anonymity and Impersonation. In simple words, when defamation takes place through computers or web it is called cyber defamation. The simplicity with which the defamation should be possible utilizing any of the Digital Devices, for example, Mobile, Computer, and Laptop combined with the solace with which character can be satirize, the online defamation has gotten uncontrolled to settle the individual score for hurting the notorieties of individual, legislator and organizations. The effect of such ascriptions can be disturbed by Morphing, Fake Video and Voice, the controls that have gotten simple subsequent to the utilization of Artificial Intelligence and other trend setting innovations which likewise make their discovery more troublesome. Cyber Defamation is neither bound by time nor by national boundaries i.e. a person sitting in one corner of the world, can at any time easily cause damage to a person sitting in another corner of the world within a few minutes.

CYBER DEFAMATION & LEGISLATIVE FRAMEWORK

In India, defamation can be considered both a civil and a criminal offence, and the Indian judiciary provides legal remedies for the victims. Such an imputation must be made using electronic devices as per the Information Technology Act, 2000. The defamation which is into the online medium falls into the category of libel as the electronic records are designated as documents whether it may be written text, audio or video files. It was specifically observed by the Delhi High Court in the matter of Dharambir v. CBI (2011)that ‘Given the wide definition of the words documents and evidence in the amended section 3 of evidence act read section 2 (o) & (t) IT Act, there can be no doubt that an electronic record is a document’ and the same has been observed in the recent judgment by Supreme Court in the matter of P.Gopalkrishnan v. State of Kerala (2019). The appropriate step in such a case is two-fold, first, to initiate the proceeding for tracing the identity and second, to initiate the proceeding for criminal or civil defamation though these done alternatively or simultaneously which in turn implies to firstly locating the identity and then to initiate the criminal or civil proceeding. In India, Section 499 of the Indian Penal Code basically administers the law on defamation; be that as it may, it is relevant to take note of that the law has been reached out to “electronic reports”. Section 469 of the IPC (fabrication for motivation behind hurting notoriety) has been altered by the Information Technology Act, 2000 to incorporate ‘electronic record manufactured’ and now peruses overall as – whoever submits phony, planning that the report or electronic record fashioned will hurt the notoriety of any gathering, or realizing that it is probably going to be utilized for that reason, will be rebuffed with detainment of either portrayal for a term which may reach out to three years, and will likewise be at risk to fine. Section- 66A of Information and Technology Act 2000 (IT Act), was subdued by the Supreme Court of India in Shreya Singhal v. Union of India (2015) because of uncertainty in the meaning of the word ‘hostile’ in the Section. The segment expressed that sending any hostile message to a PC or some other specialized gadget would be an offense. Such liberated force, under Section- 66A, was abused by the Government in reducing and smothering individuals’ right to speak freely and articulation and thus cancelled. Section- 79 of the IT Act gives a sheltered harbour to middle people against any demonstration of defamation. Section- 79 gives that a middle person isn’t subject for outsider data, information, joins facilitated on its foundation. Notwithstanding, the sheltered harbour assurance is restricted to specific conditions viz. a go-between will be obligated in the event that it starts the transmission of such slanderous substance, chooses the collector of such substance or changes such substance. For the offence of cyber defamation to be made out, an accused person must have either made or published defamatory material through internet. While “making” usually means authorship, someone who repeats or copies defamatory content (with intent, etc) may also be liable, provided that such repetition or copying was intentional or deliberate. If intent is not proven, a person who is not the author or publisher can argue that the defamatory content was unknowingly disseminated. Courts have interpreted “making” and “publishing” to be supplementary terms. If a person merely writes defamatory content but does not publish or communicate it to others, the offence of defamation may not hold, as held in Rohini Singh v. State of Gujarat (2017). Therefore, a person alleging defamation must necessarily show that the defamatory content was meant for an audience. Taking into account the aforementioned, it very well may be reasoned that a delegate’s risk can be diminished by conforming to specific commitments, instance, receiving legal due industriousness, or upholding ‘notice and bring down’ techniques. The greatest test for Defamation in the Digital Space is against whom the activity ought to be started for defamation. The Spoofing of Identity, Impersonation and Anonymity is simple and as such knowing the personality of the individual who has caused the defamation may not be doable at the principal case and accordingly it might be hard to start the procedure for criminal defamation of recording the suit for harms for Defamation. The fitting advance in such a case is two-overlap, first, to start the procedure for following the personality and second, to start the procedure for criminal or common defamation however these done on the other hand or at the same time which thusly suggests to right off the bat finding the character and afterward to start the lawbreaker or common continuing. So as to follow the Identity, the Criminal Proceeding can be started for Defamation by documenting an objection under Section 200 Cr. P.C., joined by an application under Section 202 Cr. P.C. with a solicitation to court to guide the police to direct request to follow the character of an individual by finding IP address or gathering the other important confirmations from Internet. The other choice which likewise can be investigated especially in the situations where any cognizable offense is made out separated from the defamation, at that point to document criminal objection for enrolment of the FIR which may empower following of the Identity of the guilty party just as assortment of different confirmations to demonstrate the offense of defamation.

The primary goal for the abused party in such instances of Defamation is to get expel the substance from the Internet which can be conceivable just through the court with the exception of in cases including Obscenity. If there should arise an occurrence of a vulgar profile, the interpersonal interaction sites may expel the substance as it might disregard their own protection approaches. The cure of blocking/evacuation of the substance can be profited in the common just as criminal continuing. The evacuation of the substance can be practical just in situations where the culpable site is situated in India and if there should be an occurrence of unfamiliar site; the main choice is for hindering of the substance. With the assistance of AI, it is conceivable to make “profound fakes,” which are AI-upgraded counterfeit pictures and recordings and take influence of “an AI” calculation to embed faces and voices into video and sound chronicles of genuine individuals and empowers the production of practical pantomimes”. Profound phony innovation wrongly depicts individuals saying or doing things they never said or alibied, will get imperative to demonstrating honesty in the court. In 2012, an AI ‘chatbot’ named SimSimi, purportedly figured out how to show itself ‘Thai’ through correspondence with clients in Thailand. Utilizing the new dialect and expression, it had gained from the dealings with clients; SimSimi went on supposedly to slander the Thai Prime Minister. There will consistently be a hazard that AI programming will get data which is either bogus or depicts exact information in a manner by which bogus and abusive. Accordingly, the topic of who is subject, emerges. Another enormous test in instances of Online Defamation is to gather and save the computerized proof and to demonstrate their Authenticity. The consistence of state of Section- 65B and completing the scientific assessment might be important to demonstrate the case certain. If there should arise an occurrence of defamation, on the open gatherings, for example, on Whatsapp, Instagram and so forth demonstrating the distribution of the disparaging material may require proper criminological methodology to be received for safeguarding and validation of the electronic proof. Getting the cure if there should arise an occurrence of Online Defamation is troublesome and a greater amount of convoluted nature, yet whenever followed fittingly, utilizing specialized and legal strategy, it might be anything but difficult to demonstrate and indict the guilty party and furthermore to get the harms. Be that as it may, these cures are not compelling and adequate as when it could be implemented, the abusive material as sound, video or text would have accomplished the ideal effect of the guilty parties. These cures were presented for the defamation in physical space as opposed to online medium as the idea of online medium is particular from physical medium. In cyber space, the correspondence of distribution is moment and worldwide, caricaturing the personality and obscurity is very simple when contrasted with physical space. Further, the casualty will most likely be unable to deliver all the proof of correspondence, distribution or distributer as the equivalent can be gathered through requirement or court. Accordingly in an earnest need to alter the law to bring solution for online defamation which is immediate like momentary correspondence through which it spreads and falling effect made by it.

In its first ever case on Cyber Defamation in SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, wherein a disgruntled employee sent derogatory, defamatory, vulgar and abusive emails to the company’s fellow employers and to its subsidiaries all over the world with an intent to defame the company along with its managing director, the High Court of Delhi granted ex-parte ad interim injunction restraining the defendant from defaming the Plaintiff in both the physical and in the cyber space. This order of Delhi High Court assumes tremendous significance as this is for the first time that an Indian Court assumes jurisdiction in a matter concerning cyber defamation and grants an ex-parte injunction restraining the defendant from defaming the plaintiffs by sending derogatory, defamatory, abusive and obscene emails either to the plaintiffs or their subsidiaries. In another case in Odisha, Kalandi Charan Lenka v. State of Odisha, the Petitioner was stalked online and a fake account was created in her name with an intention to defame the Petitioner. The High Court of Odisha held that the said act of the accused falls under the offence of cyber defamation and the accused is liable for his offences of defamation through the means of fake obscene images and texts. The Delhi High Court in Tata Sons Limited v. Greenpeace International 178 (2011) DLT 705 held, “It is true that in the modern era defamatory material may be communicated broadly and rapidly via other media as well. The international distribution of newspapers, syndicated wire services, facsimile transmissions, radio and satellite television broadcasting are but some examples. Nevertheless, Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility. The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.” Very recently in the case of Swami Ramdev v. Facebook Inc 263 (2019) DLT 689, The Delhi High Court passed global injunctions to evacuate all abusive substance posted online against the plaintiff dependent on a book named “Godman to Tycoon-the untold story of Baba Ramdev”, with no regional cutoff, referencing that if the substance is transferred or on the off chance that is situated in India on a Computer Resource, at that point the Courts in India ought to have International Jurisdiction to pass Worldwide Injunctions.

CYBER DEFAMATION & FUNDAMENTAL RIGHTS

Freedom of Speech and Expression as enshrined in the Constitution under Article 19 (1) (a), gives that all citizens will reserve the option to freedom of speech and articulation. In any case, such freedom is dependent upon sensible limitation. The right to reputation of a living person under Article 21 cannot be sacrificed or crucified at the altar of another’s right to freedom of speech. Both have to be harmonized, as no amount of damages can redeem the adverse impact on a person’s reputation.  The insurance of notoriety of someone else falls inside the ambit of sensible limitation and any remark or comment which hampers the notoriety of someone else (except if the announcement is valid) would welcome risk under the law of defamation. The easy exchange of information and data over the web has made it a basic hotspot for defamation. Despite the fact that, there are laws set up which deny individuals from posting such substance on the web, a great many people don’t know about the equivalent or are too careless to even consider realizing whether such substance is disparaging or not. Now and again, when free speech runs opposing to an individual’s notoriety it gets appropriate for the State to set up a limit, in case that free speech turns into a weapon in the possession of specific individuals. There is an urgent need of a framework which teaches and makes individuals mindful of what to do and what not to do, what’s up and what is correct and what is disparaging and what isn’t slanderous in the cyber space. Further, the delegates which give such an open stage should screen the substance posted on it and take fitting activities against such clients who post such abusive substance so as to maintain a strategic distance from redundancy later on. In the infamous case of Subramaniam Swamy v. Union of India, (2014) the petitioner argued that any attempt to fetter or bind the expression of public opinion, perception and criticism, by launching criminal prosecution, would affect the health of the democracy. The Supreme Court, however, upheld the constitutional validity of criminal defamation, stating that the right to free speech cannot mean that one citizen can defame the other.

COMPARATIVE ANALYSIS: INDIA & UK

A correlation of cyber security approaches across India and the UK mirrors a few ongoing ideas in certain zones and huge difference in others. The distinctions in approaches can to a great extent be credited to varying conditions in the two nations. Be that as it may, regardless of a huge hole as far as verifiable access to innovation and assets to convey towards ensuring cyber space, India has, in the course of the most recent two decades, progressively accentuated cyber security as a significant strategy concern. The UK has genuinely evolved procedures and frameworks, and cyber security has been a strategy worry for extensively longer than in India. Normally, the UK cyber security system is more far reaching and firm than in India. In any case, utilizing the markers in the Global Cybersecurity Index, India isn’t altogether far away from the UK cyber security duty and advancement is concerned. This may likewise in part be a reason for the two nations being not able to apply previous laws to address new circumstances in cyberspace. Strategy in the two countries is drawn closer from a power point of view, for example from the casing of national security plans. So also, knowledge and resistance establishments remain profoundly associated with cyber security in the two locales. Be that as it may, the distinguishing proof of entertainers, dangers and points and goals of the cyber security strategy contrasts extensively. The UK is impressively more open to multi-partner contribution to trim its strategies, while cyber security in India stays bifurcated between private activities and government activities, which will in general spotlight on national security concerns. The UK’s grip of multi-partner standards ought to be received in Indian approach, which has just perceived the significance of multi-stakeholderism in the global setting. The Indian government can do significantly more as far as spreading mindfulness about cyber security and creating indigenous cyber security research. India could likewise helpfully utilize the delicate methodologies taken by the UK to boost organizations to consent to security best practices without fundamentally ordering severe guideline, similar to the execution of the cyber basics plot. Central parts of cyber security framework stay normal across the two wards, for example, the foundation of crisis reaction organizations and basic data insurance. Other than these, there are a few dissimilar establishments taking care of divergent commands on cyber security. Thus, it is important that the proposed National Cyber Coordination Center, on the lines of the UK’s National Cyber Security Center, as a one stop look for cyber security-related concerns. Further, the jobs of every association must be obviously separated to maintain a strategic distance from cover and guarantee responsibility. India’s universal way to deal with cyber wrongdoing appears to have been held up for discretionary reasons. The Budapest Treaty setting up worldwide participation on cyber security and cyber wrongdoing, of which the UK is likewise (yet belatedly) a part, is a significant part of universal coordination on cyber security issues, which would be a lot harder to haggle on a respective premise. It is suggested that India return to the chance of going into worldwide duties given the huge level of participation required for exploring cyber dangers. Indian cyber security is likewise un-established in major standards on which such enactment ought to be based. The essential standards UK strategy perceives guarantees that the primary methodology for cyber security remembers parts of common freedoms and person’s interests in the web as a mutual asset. While this may put imperatives on the administration’s hold over cyber security, security strategy must be adjusted towards maintaining common freedoms, and not the opposite way around. The UK in any case, in its activities, needs to adjust its national security worries with common freedoms worries around protection and reconnaissance.

Vinakshi Kadan is an Advocate practising in Supreme Court and Bhawna Gandhi is practising in Delhi High Court.

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The Indian position on the issue of sedition

The publication or utterance of seditious, obscene, slanderous, libellous or defamatory matter shall be actionable or punishable in accordance with law.

J. Sai Deepak

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It is sometimes claimed in popular discourse that the Constituent Assembly was dead set against the inclusion of sedition as a restriction on free speech and expression, and therefore, it is argued that the presence of Section 124A of the IPC penalising sedition is an insult to the intent of the framers of the Constitution. However, no credible explanation is offered by the proponents of this school of thought as to what explains the continued presence of Section 124A, which, it can be safely presumed, the framers of the Constitution were aware of when the draft predecessors Article 19 and its limitations were being debated and put together in and by the Constituent Assembly.

It would help to go a few steps before the Constituent Assembly and take a look at the evolution of Indian thought on sedition before we allow pre-conceived notions to dictate the course of our opinions. Let’s start with the 33rd Session of the Indian National Congress held in 1918 wherein the following Resolution on the right to self-determination was moved by Annie Besant and unanimously adopted:

“BE IT RESOLVED

1. That this Congress claims recognition of India by the British Parliament and by the Peace Conference as one of the progressive Nations to whom the principle of Self-Determination should be applied.

2. That in the practical application of the principle in India the first step should be —

(a) the removal of all hindrances to free discussion, and therefore the immediate repeal of all laws, regulations and ordinances restricting the free discussion of political questions whether in the press, private or public meeting, or otherwise, so that the legitimate aspirations and opinion of all residents in India may be fearlessly expressed; further, the abolition of the laws, regulations, and ordinances, which confer on the Executive the power to arrest, detain, intern, extern, or imprison any British subject in India, outside the processes of ordinary civil or criminal law, and the assimilation of the law of sedition to that of England.

(b) The passing of an Act of Parliament which will establish at an early date complete Responsible Government in India.

(c) When complete Responsible Government shall be thus established, the final authority in all internal affairs shall be the Supreme Legislative Assembly as voicing the will of the Indian Nation.

RESOLVED FURTHER

(d) That in the reconstruction of Imperial polity, whether in matters affecting the inner relations of the nations constituting it, in questions of foreign, policy or in the League of Nations, India shall be accorded the same position as the Self-Governing Dominions.”

Clause 2(a) of the Resolution makes it abundantly clear that what was sought was (a) the abolition of those laws which enabled the Executive to abridge personal liberty outside the processes of ordinary civil or criminal law; and (b) the assimilation of the law of sedition to that of England. In other words, sedition was not sought to be abolished but it was sought to be brought at par with the law in England.

Let’s cut to 1947 when after the founding of the Constituent Assembly, multiple sub-committees were formed to prepare their recommendations on various aspects such as fundamental rights, rights of minorities and the like. It is the proceedings of the sub-committee on fundamental rights which is relevant to the discussion at hand. Members of the said sub-committee presented their respective drafts of provisions on fundamental rights. The journey of Article 19 began with draft Article V of Shri K.M. Munshi, which was submitted by him to the sub-committee on fundamental rights in March 1947. The said Article V read as under:

Article V—(1) There shall be liberty for the exercise of the following rights, subject to public order and morality: —

(a) The right of the citizens to freedom of speech and expression.

The publication or utterance of seditious, obscene, slanderous, libellous or defamatory matter shall be actionable or punishable in accordance with law.

This morphed into Clause 9 of the Draft Report of the said sub-committee dated April 3, 1947, and read as follows:

Clause 9. There shall be liberty for the exercise of the following rights subject to public order and morality: (a) The right of every citizen to freedom of speech and expression.

The publication or utterance of seditious, obscene, slanderous, libellous or defamatory matter shall be actionable or punishable in accordance with law…

Did the restriction based on sedition vanish when the final report was prepared by the sub-committee on Fundamental Rights? No. Here’s Clause 10 of the Report of the Sub-committee dated April 16, 1947:

Clause 10. There shall be liberty for the exercise of the following rights subject to public order and morality or to the existence of grave emergency declared to be such by the Government of the Union or the unit concerned whereby the security of the Union or the unit, as the case may be, is threatened:

(a) The right of every citizen to freedom of speech and expression.

The publication or utterance of seditious, obscene, slanderous, libellous or defamatory matter shall be actionable or punishable in accordance with law.

Did the Advisory Committee, to which all the Sub-committees submitted their respective reports, do away with sedition? No. On the contrary, the proceedings of the Advisory Committee on April 21 and 22, 1947 make it clear that while discussing the preamble to Clause 10 (one of the precursors to Article 19), many members of the Committee were in favour of the clause dealing with seditious speech but did not wish to curtail the powers of the legislature, judiciary or executive to deal with such penal laws later. Importantly, seditious speech or publication was discussed alongside speech that spreads communal hatred, unrest, or distrust in the State.

Did the Drafting Committee, under the stewardship of Dr. Ambedkar, remove sedition from the grounds of restrictions on free speech and expression? No. Here’s Clause 15 based on the proceedings of the Drafting Committee on October 31, 1947:

Clause 15. (i) Subject to public order, health and morality, every citizen shall have the right—

(a) to freedom of speech and expression;

*[Provided that the publication or utterances of seditious, slanderous, libellous or defamatory matter shall be actionable or punishable in accordance with law:]

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India;

(f) to acquire, hold and dispose of property; and

(g) to practise any profession, or to carry on any occupation, trade or business.

[(2) [Held over.]

[(3) Nothing in this section shall prevent the State from making any law imposing restrictions on the exercise of any of the rights conferred by clauses (d),(e), (f) and (g) of sub-section (i) if public interest so requires for the promotion of the interests of any tribes specified in such law.]

[(4) Nothing in clause (g) of sub-section (1) shall affect the operation of any law prescribing or empowering any authority to prescribe the professional or technical qualifications which are to be requisite for the practising of any profession, or the carrying on of any occupation, trade or business.]

[6. No person shall be deprived of his life or personal liberty without due process of law, nor shall any person be denied equality before the law [or the equal protection of the laws] within the territory of India

Sedition remained in the subsequent versions of Clause 15 which is reflected in the proceedings of the Drafting Committee on November 1, 1947, November 4, 1947, November 5, 1947 and January 1948. When the Draft Constitution was presented to the Constituent Assembly by the Drafting Committee, Clause 15 had been renumbered to Draft Clause 13 and as of February 21, 1948, it read as under:

Clause 13 – Protection of certain rights regarding freedom of speech, etc..

(1) Subject to , the other provisions of this article, all citizens shall have the right —

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India;

(f) to acquire, hold and dispose of property; and

(g) to practise any profession, or to carry on any occupation, trade or business.

(2) Nothing in sub-clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law, relating to libel, slander, defamation, sedition or any other matter which offends against decency or morality or undermines the authority or foundation of the State.

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law, or prevent the State from making any law, imposing in the interests of public order restrictions on the exercise of the right conferred by the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law, or prevent the State from making any law, imposing, in, the interests of the general public, restrictions on, the exercise of the right conferred: by the said sub-clause.

(5) Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law, or prevent the State from making any law, imposing restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any aboriginal tribe.

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law, or prevent the State from making any law, imposing in the interests of public order, morality or health, restrictions on the exercise of the right conferred by the said sub-clause and in particular prescribing, or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business

This Draft Clause 13, which later became Article 19, was debated on several dates in the Constituent Assembly. So, what was the Assembly’s position on sedition? I will discuss this in the next piece.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.

Let’s cut to 1947 when after the founding of the Constituent Assembly, multiple sub-committees were formed to prepare their recommendations on various aspects such as fundamental rights, rights of minorities and the like. It is the proceedings of the sub-committee on fundamental rights which is relevant to the discussion at hand. Members of the said sub-committee presented their respective drafts of provisions on fundamental rights.

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Default bail: Period of 90/60 days will commence from date of remand only, not from any unlawful custody prior to it, says Bombay High Court

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Bombay High Court

In a clear, categorical, cogent, convincing and commendable judgment titled Gautam P Navlakha Vs. National Investigation Agency in Criminal Appeal Stamp No. 1707 of 2020 delivered by a two Judge Bench of the Bombay High Court comprising of Justice SS Shinde and Justice MS Karnik that was reserved on 16 December 2020 and pronounced finally on 8 February 2021, it was held in no uncertain terms that the time spent in “unlawful custody” cannot be included while computing the 90 days period prescribed for grant of default bail under Section 167(2) of the Criminal Procedure Code. This was held so while rejecting senior journalist-activist Gautam Navlakha’s petition for bail. It may be recalled that Navlakha was arrested in the Elgar Parishad – Maoist Links case twice. The first time that he was arrested was on August 28, 2018 and the second time then after he surrendered on April 14, 2020.

To start with, the ball is set rolling in para 1 of this leading case authored by Justice MS Karnik for himself and Justice SS Shinde wherein it is put forth that, “This is an Appeal under section 21 of the National Investigation Agency Act, 2008 (‘the Act’ for short) against order dated 12/07/2020 passed by the NIA Special Court in NIA Case No. 414 of 2020. The impugned order was passed on the Exhibit No. 276 application made by the Appellant before the NIA Court for statutory bail under section 167 (2) of Code of Criminal Procedure (for short ‘CrPC’) read with section 43 of the Unlawful Activities Prevention Act, 1967 (‘UAP’ Act for short).”

While elaborating on the facts of the case in brief that lead to the filing of the present appeal, it is then stated in para 2 that, “The Appellant states that he is a 69 years old scholar, writer, peace and civil rights activist and journalist of long standing associated with the Economic and Political Weekly and other well regarded publications. It is stated that the Appellant belongs to the People’s Union of Democratic Rights (‘PUDR’ for short) many of his Petitions have led to landmark judgments.”

While elaborating on the charges and FIR filed against him, the Bench then states in para 3 that, “The Appellant came to be arrested on 28/10/2018 at his residence in Delhi in connection with F.I.R. No. 4 of 2018 registered at Vishrambag Police Station, Pune on 08/01/2018. The said F.I.R. has since been numbered as RC 01/2020/NIA/Mum dated 24/01/2020 registered by NIA, Mumbai under sections 121, 121-A, 124-A, 153-A, 505(1)(b), 117, 120-B read with section 34 of Indian Penal Code (‘IPC’ for short) & sections 13, 16, 17, 18, 18-B, 20, 38, 39, 40 of UAP Act.”

It would be useful to mention that it is then stated in para 4 that, “The High Court of Delhi in Gautam Navlakha Vs State W.P.(Cr) No. 2559 of 2018 vide order dated 28/08/2018 stayed the Appellant’s transit remand proceedings and directed that the Appellant be kept under house arrest under guard of Delhi Police Special Cell along with local police that had come to arrest the Appellant.”

It would also be worthwhile to mention that it is then stated in para 5 that, “The Hon’ble Supreme Court in Romila Thapar vs. Union of India and ors. in Writ Petition (Crl) 261 of 2018 passed an interim order dated 29/08/2018 extending the Appellant’s house arrest, which was further extended from time to time till final disposal of the Petition on 28/09/2018. On 28/09/2018, the Hon’ble Supreme Court pronounced the judgment in Romila Thapar and gave the accused persons liberty to pursue appropriate legal remedies.”

Be it noted, the Bench then observes in para 6 that, “The High Court of Delhi by its order dated 01/10/2018 passed in Gautam Navlakha Vs. State Writ Petition (Cr) No. 2559 of 2018 quashed the Appellant’s arrest. This order was challenged by the State of Maharashtra (the prosecuting agency before transfer to NIA) before the Hon’ble Supreme Court in State of Maharashtra Vs. Gautam Navlakha SLP(Crl.) 8616/2018.”

As we see, it is then pointed out in para 7 that, “The Appellant by this time had spent 34 days in custody (house arrest) i.e. from 28/08/2018 to 01/10/2018, first under the orders of High Court of Delhi and then under the orders of the Hon’ble Supreme Court in ‘Romila Thapar’.”

What next follows is then stated in para 8 that, “The Appellant filed Writ Petition (Criminal) 4425 of 2018 in this Court for quashing the F.I.R. against him which was dismissed on 13/09/2019. This Court in the interregnum had ordered that no coercive steps be taken against the Appellant.”

While proceeding ahead, the Bench then states in para 9 that, “The order dated 13/09/2019 passed by this Court dismissing the Writ Petition for quashing of F.I.R. was challenged by the Appellant in SLP (Criminal) 8862 of 2019. The Hon’ble Supreme Court granted the Appellant 4 weeks protection with liberty to seek pre-arrest bail/ protection before the concerned Court. The Appellant then filed an anticipatory bail application before the Sessions Court Pune (the Court where the trial was pending before transfer to NIA) and then approached this Court. The anticipatory bail application came to be rejected by this Court on 14/02/2020.”

While stating about the appellant availing his legal remedies, the Bench then mentions in para 10 that, “The Appellant then approached the Hon’ble Supreme Court by way of (SLP) (Criminal) 1842 of 2020. By an order dated 16/03/2020 the Hon’ble Supreme Court directed the Appellant to surrender within 3 weeks. The appellant sought extension of time to surrender by an application dated 08/04/2020 due to Covid-19 pandemic. The Hon’ble Supreme Court granted one more week to the Appellant to surrender. The Appellant surrendered to NIA Delhi on 14/04/2020 in compliance with the order passed by the Hon’ble Supreme Court. It is stated by the Appellant that he could not surrender to NIA, Mumbai as there was ban on inter- state travel due to Covide-19 pandemic.”

Be it noted, para 17 then brings out that, “Learned Senior Advocate Mr.Kapil Sibal appearing on behalf of the Appellant submitted that the Appellant’s total custody had exceeded 90 days and no charge-sheet had been filed nor extension of time sought for fling charge-sheet and hence, the Appellant is entitled for statutory bail under section 167(2) of CrPC read with 43 of UAP Act. According to learned Senior Advocate 90 days custody of the Appellant is as follows.

“From 28.8.2018 – 1.10.2018 (custody in his house) = 34 days (excluding the last day)

From 14.4.2020 – 25.4.2020 (NIA custody) = 11 days (excluding the last day)

From 25.4.2020 – 12.6.2020 (Judicial custody) = 48 days (excluding the last day)

TOTAL 93 DAYS

Simply put, the Bench then brings out in para 33 that, “Though the facts have been set out in detail earlier, however for appreciating the controversy, it would be apposite to concisely refer to a few basic facts again.

Please read concluding on thedailyguardian.com

Pursuant to registration of FIR, the Appellant was restrained in his house by the Maharashtra Police on 28.08.2018. The learned CMM granted transit remand to the Appellant on 28.08.2018. The High Court of Delhi stayed the Appellant’s transit remand proceedings on the same day i.e. 28.08.2018. Apart from the other directions, the following direction in paragraph 5(6) of the order which reads thus came to be issued :-

“5(6) The Petitioner shall, in the meanwhile, be kept at the same place from where he was picked up with two guards of the Special Cell, Delhi Police along with local Police that was originally here to arrest the Petitioner, outside the house. Barring his lawyers, and the ordinary residents of the house, the Petitioner shall not meet any other persons or step out of the premises till further orders.”

Going forward, the Bench then envisages in para 34 that, “The interim directions were continued from time to time. The High Court of Delhi finally on 01.10.2018 held that the order passed by the learned Chief Metropolitan Magistrate (CMM for short) on 28.08.2018 granting transit remand to the Appellant is unsustainable in law. It was held that there were several non-compliances of the mandatory requirement of Article 22(1), Article 22(2) of the Constitution and Section 167 read with Section 57 and 41(1)(ba) of the Cr.P.C., which are mandatory in nature. The High Court of Delhi also observed that in view of Section 56 read with Section 57 of the Cr.P.C., in the absence of the remand order of the learned CMM, the detention of the Petitioner, which has clearly exceeded 24 hours, is again untenable in law. Consequently, it was ordered that the house arrest of the Petitioner came to an end. It was clarified that the order will not preclude the State of Maharashtra from proceeding further in accordance with law.”

More significantly, the Bench then after considering the versions of both sides goes on to add in para 39 that, “The bone of contention is the period of 34 days (28/08/2018 to 01/10/2018) which the appellant was under custody (house arrest). Undoubtedly, this period has to be regarded as custody as the appellant admittedly was under house arrest. However, in our opinion, the intervening orders passed would be relevant for determining the nature of this custody for the purpose of Section 167 of Cr.P.C to enable the appellant to claim default bail. Following circumstances cumulatively leads us to conclude that the appellant is not entitled to the benefit of 34 days for claiming statutory default bail.

(1) The transit remand order came to be stayed by the Delhi High Court on 28/10/2018.

(2) The appellant was placed under house arrest pursuant to the directions of the Delhi High Court during which period the investigating officer did not get the opportunity of interrogating him.

(3) The High Court of Delhi quashed the appellant’s arrest holding that the appellant’s detention is illegal.

(4) Pursuant to the declaration of the detention as illegal, the appellant was set at liberty. It is not as if the appellant was released on bail but after being set at liberty, the appellant is protected by an order of this Court restraining the investigating agency from taking coercive steps during the pendency of appellant’s challenge to the FIR.

(5) The Hon’ble Supreme Court having dismissed the challenge of the appellant to quash FIR granted 4 weeks protection with liberty to seek pre arrest bail/protection before the Sessions Court. The Hon’ble Supreme Court granted the appellant time to surrender after the appellant failed to serve pre arrest bail. The appellant ultimately surrendered to NIA Delhi on 14/04/2020. Only after the appellant surrendered, the Magistrate authorised the police custody whereupon the appellant was interrogated.”

Equally significant is what is then stated in para 45 that, “In the present case, no doubt the Appellant was under house arrest. The transit remand ordered by the CMM on 28.08.2018 was stayed by the High Court of Delhi on very same day. During the period of house arrest, barring the Appellant’s lawyers and ordinary residents of the house, the Appellant was not supposed to meet any one or step out of the premises till further orders. The High Court of Delhi had ordered that the Appellant be kept at the same place from where he was picked up with two guards of the Special Cell, Delhi Police along with local police that was originally present to arrest the Appellant, outside the house. It is therefore obvious that the Investigating Agency/Investigating Officer did not have any access to him nor had an occasion to interrogate him. As the transit remand order was stayed, it cannot be said that the appellant was under detention of police for investigation.”

What’s more, it is then elucidated in para 46 that, “Further under Sub-Section (2) of Section 167 of Cr.P.C. the Magistrate has to authorise the detention of the accused in such custody as such Magistrate thinks ft, for a term not exceeding fifteen days. The CMM granted transit remand on 28.08.2018. The righ Court of Delhi by an interim order having stayed the transit remand and then having finally set aside the order of transit remand thereby holding the detention during the period 28.08.2018 upto 01.10.2018 (period of house arrest) as illegal, then, in our opinion, in the absence of there being an authorised detention by an order of Magistrate, the Appellant cannot claim entitlement to statutory default bail under Sub-Section (2) of Section 167 of the Cr.P.C. The mandate of Sub-Section (2) of Section 167 of the Cr.P.C. makes it clear that for claiming availment of default bail under Section 167(2) of the Cr.P.C. the basic requirement is that the detention of the accused in the custody has to be authorised by the Magistrate. Once the authorisation by the Magistrate is declared illegal consequently rendering the detention itself illegal, the said period (house arrest custody) cannot be construed to be an authorised custody within the meaning of Section 167(2) of CrPC.”

No less significant is what is then stated in para 47 that, “The Apex Court in the case of Chaganti Satyanarayan and others (supra) held that the period of 90 days will commence only from the date of remand and not from any anterior date inspite of the fact that the accused may have been taken into custody earlier by a police officer and deprived of his liberty. Thus, from a reading of Section 167(2) of Cr.P.C., we are of the view that the essential requisite for availing statutory bail is that the accused must have undergone the authorised period of detention ordered by the Magistrate. It is not possible for us to construe any and every detention which may have resulted in deprivation of liberty of the accused to be an authorised detention by the Magistrate within the meaning of Section 167(2) of the Cr.P.C.”

Quite remarkably, the Bench then holds in para 48 that, “It is not possible for us to fathom a situation where detention of the Appellant though held to be illegal & unlawful rendering the authorisation by the Magistrate untenable should still be construed as an authorised detention for the purpose of Sub-Section (2) of Section 167 of the Cr.P.C.. In our view sans any valid authorisation/order of the Magistrate detaining the appellant, the incumbent will not be entitled to a default bail. It is therefore obvious that Sub-Section (2) of Section 167 of the Cr.P.C. necessarily presupposes a detention authorised by a Magistrate, for only then the said period of authorised detention can count towards calculating 90 days period of custody prescribed under Section (2) of Section 167 of the Cr.P.C. for the purpose of default bail.”

In view of the above, the Bench then holds in para 49 that, “Resultantly we hold that the period from 28.08.2018 to 01.10.2018 has to be excluded from computing the period of 90 days as the said custody has been held to be unsustainable in law by the High Court of Delhi. The High Court of Delhi also set aside the order passed by the learned CMM on 28.08.2018 granting transit remand to the Appellant. It is not in dispute that thereafter the Appellant applied for Anticipatory Bail which came to rejected at all stages and ultimately the Appellant surrendered on 14.04.2020. It is only consequent to the surrender that the Magistrate then authorise the police custody.”

We also need to pay attention that it is henceforth observed in para 50 that, “The decisions relied upon by the learned Senior Advocate Shri Sibal have no application in the facts of the present case. None of the decisions relied upon by learned Senior Advocate Mr. Sibal deals with the question whether sans any authorisation of the detention by the Magistrate under Section 167(2) of Cr.P.C. and particularly when the detention has been held to be unlawful, can this period of custody still be included in the 90 days period prescribed for grant of default bail.”

Now coming to the concluding paras. Para 51 states that, “We have gone through the order passed by the Special Judge, NIA. We see no reason to interfere with the well reasoned order of the learned Special Judge. The Appeal Stands dismissed.” Finally, it is then stated in the last para 52 that, “This judgment will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this judgment.”

In conclusion, the Bombay High Court has rejected senior journalist-activist Gautam Navlakha’s petition for bail. It minced no words to hold that, “It is not possible for us to fathom a situation where detention of the Appellant (Navlakha) though held to be illegal and unlawful rendering the authorization by the Magistrate untenable should be construed as an authorized detention for the purpose of Sub-Section (2) of Section 167 of the Cr.PC.” The Division Bench of Justices SS Shinde and MS Karnik held that the 34 days Navlakha had spent under house arrest between August 28, 2018 – October 10, 2018 cannot be used to calculate his total detention period especially since his arrest as well as the Magistrate’s transit remand was found to be illegal by the Delhi High Court. We also see that the Bench relied on the decision of Chaganti Satyanarayan and others v. State of Andhra Pradesh (1986) 3 SCC 141 where the Supreme Court in Paragraph 24 held that the period of 90 days or 60 days, as the case may be, will commence running only from the date of remand and not from any anterior date in spite of the fact that the accused may have been taken into custody earlier by a police officer and deprived of his liberty.

While definitely this notable ruling is a big setback for Gautam Navlakha but all the doors are still not closed for him yet. He still has the option to approach the Supreme Court. His lawyer who is none other than the eminent and legendary Kapil Sibal who is former Union Law Minister as also senior Supreme Court lawyer will surely further strenuously argue the case with full vigour in the top court. But in Bombay High Court we see that Kapil Sibal’s arguments failed to convince the Judges in this case as we have already discussed above!

Sanjeev Sirohi, Advocate,

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Appointment of judges: An analysis

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In a recent notification, the Ministry of Law and Justice has modified the resolution of the Collegium which had suggested for extending the tenure of Justice Pushpa Ganediwala to two years as additional judge at Bombay High Court. Instead, the Notification has modified the order and extended the tenure of Justice Ganediwala to one year instead of two. This particular act of the executive is attracting a lot of criticism across bar and bench, the former Chief Justice of India Justice R.M. Lodha has taken critical view of this step by the Executive. Not accepting the resolution of the Collegium is not an accepted convention in the Indian Judicial history, especially after the Supreme Court Advocate on Record Association v. Union of India (1993), backed by the In Re Special Reference (1998) judgments which have clearly laid down, that the final words regarding appointment, transfer and elevation of the judges would be with the Collegium.

However, it cannot be denied that off lately Justice Ganediwala has drawn a lot of criticism, especially due to her ‘skin-to-skin’ judgment on the POSCO matters, modification of the Collegium resolution does look like a result of this factor. However, it also needs to be kept in mind that through its 20th January resolution the Collegium had recommended the name of Justice Ganediwala for permanent judge in the Bombay High Court, however, the Collegium soon after retrieved the resolution and modified it to extension of tenure to two-years as an additional judge. As per Indian Express, the recommendation for the permanent position was retrieved after strong dissent were reported by Justice Khanwilkar and Justice Chandrachud on the name of Justice Pushpa. So, the role of Executive cannot be questioned on this front, however, modifying the years of extension does seem like a reasonable interference by the Executive. Yet, there are two ways of seeing this particular phenomenon. On a normative basis and on a judicial accountability basis, let us explore this incident initially on a normative basis, the fact that Justice Pushpa is an additional judge, and the collegium has extended her tenure and the Executive modified it to one year, which directly means that Executive has not complied with the Collegium resolution, which is against the accepted practice. However, this accepted practice of embracing Collegium resolution as a norm is only applicable to article 124 (2), 217 & 222. As only these articles talk about the term “……President in Consultation with such number of Judges of Supreme Court and High Court…….”, what is emphatic in this sentence is the term ‘Consultation’, which normatively means that the President will make appointment on the recommendation of the Collegium. This term ‘Consultation’ under article 124 (2), 217 & 222 brought ‘Collegium’ into existence, as per SCAORA judgment & In Re Special Reference opinion the term ‘Consultation’ meant consensus of the CJI along with the four senior judges of the Supreme Court and recommending the names to the President. In absence of the Consultation of the CJI with the senior judges, the Executive would not be bound to accept the recommendation of the Collegium (however, the strength and coram of Collegium changes as per the role it is working upon). Thus, the term ‘Consultation’ brings a normative set of procedure which has to be followed, however, under article 224 of the Constitution which governs the terms and tenure of additional judges, there is no usage of the term ‘Consultation’. Therefore, the kind of bondage that the Executive has to follow in case of article 124 (2), 217 & 224 due to normative procedure of ‘Consultation’, the same normative procedure does not seem to be a part of article 224. Surely, the Collegium cannot claim to have the same normative strength under article 224, as the article 224 reads “….it appears to the President that the number of the judges of that Court should be for the time being increased….”, there is no usage of the term ‘Consultation’, rather the satisfaction of the President under article 224 is much freer-flowing then as compared to that of Article 124 (2), 217 & 222.

On the second front, the fact that Executive is restricted the tenure to one year instead of two seems like a chastisement for the kind of judgment which was delivered. Judicial accountability surely is a much-needed element for the Indian Judiciary. In a Recommendation-based appointment model, the risk of appointing a wrong person in a high position is palpably there, so will the interference of the Executive in the working of Collegium would work as a check upon the judiciary which for long has stayed away from any scrutiny. Ever since the 1993 SCAORA judgment, the working of Collegium has turned very discreet with limited scope of judicial review, with the last attempt being made in 2015 when the BJP-led government tried bringing NJAC which was again struck down on the ground of Judicial Independence. Therefore, this step of modification might be seen as a step towards judicial scrutiny or legislating the judicial action to bring it more in consonance with the public image, the fact that the judgment of Justice Pushpa was much published and was in lime light across the society, surely has played a role in bringing Executive action.

It is however, paramount to highlight anecdotes from the making of the Indian Constitution to understand the jurisprudence of this issue. Judiciary since the inception of the Republic of India has held a sacrosanct position in the minds of individuals. A great deal of debates and discussions in the Constituent Assembly have been dedicated to ascertain this sacred and democratic idea of independent judiciary. In the words of Nehru, “of the highest integrity…people who can stand up against the executive government and whoever may come in their way.” Surely, Nehru’s implication was on the part that, the judiciary must stand between the executive and the people of India as a pillar to balance the State’s action. But a significant question that kept the debate going was on the appointment of judges to these Constitutional Courts. Prior to the debate, the Sapru Committee (1946) heavily criticized the colonial system of appointment, which allowed excessive interaction with the executive. This report laid the foundation for the idea of an independent judiciary in respect to the appointment of judges. It is fascinating to note that, although the Constituent Assembly was inclined towards the independence of judiciary (Nehru’s speech gives a clear idea), there were alternate opinions on the same. These alternate opinions include T.T. Krishnamachari’s caveat to maintain a check-balance system. According to Krishnamachari “Imperium in Imperio… operating as a sort of superior body to the general body politic.”, his words reflects the idea that the independence of judiciary may result in a superior body working as a parallel executive. Moreover, Ambedkar’s views were in conformity with that of Karamchari’s, though Ambedkar placed his rational upon the personal bias of individuals, he believed that if the power of concurrence lies with the CJI, it would lead into a ‘veto’ power bestowed with the CJI. Though the CJI is of the highest integrity but the chances of personal bias can’t be negated, and if it happens, it would disrupt the fine balance of the three organs of the State. On the line of Nehru, Krishnamachari and then Ambedkar, it is safe to interpret that there is a fine line of independence of judiciary and check-balances.

However, there have been few instances where this fine line has been breached by the executive. Previously, the executive has turned down the name of Mr Gopal Subramanium for his elevation as a Supreme Court judge. Similarly, the executive had put a hiatus on the elevation of Justice K.M Joseph. In the former case, Mr Subramanium wrote to the then CJI R.M. Lodha, expressing his anguish he wrote ‘carefully orchestrated drama to scuttle my elevation.’. The latter case seemed like high-tabled political drama to manipulate seniority. Justice Joseph’s appointment was delayed for more than a year, affecting his seniority in the Supreme Court. Another example to this delayed practice could be seen in Justice A.K. Kureshi’s appointment, where the collegium and the executive went neck-to-neck. The collegium twice recommended to elevate Gujarat High Court Justice Kureshi as Chief Justice of Madhya Pradesh High Court (sanctioned strength of 53 judges), but the executive raised objection over the recommendations. The result of it, if seen in the light of Constituent Assembly would again resemble the breach of the fine line, ultimately Justice Kureshi was recommended and appointed to Tripura High Court (sanctioned strength of 4 judges). Also, the former CJI TS Thakur, in the year 2016, pulled the executive by threatening to summon the officials of Law Ministry and the PMO over a tussle between collegium and the executive, wherein the executive sat over the recommendations by the collegium.

So, it is thus lucid that there lies a tussle between the modus operandi of both collegium and the executive on the appointment of the judges and at times executive has abstained itself from concurring with collegium. However, the collegium recommendations as well have not been transparent at times. The parameters for the recommendations made by the collegium are kept behind the doors, for instance in 2019, Chief Justice of Madras High Court (sanctioned strength 75 judges) V.K. Tahilramani and the senior most of the high court judges at that time, resigned after the collegium transferred her to the high court of Meghalaya (smallest high court with the sanctioned strength of 3 judges). While this move manifested the procedure of appointment of judges in the bad light, it also attracted criticism and protests from the legal fraternity, to which the collegium responded by saying that it had ‘cogent reasons’. Justice Chelameswar while penning down his strong dissent in NJAC judgment, noted non-transparency, non- accountability and speculations in the working of collegium. Even Justice Kurian Joseph, who was the part of the majority judgement said that he regrets his decision because of non-transparency of collegium system, he stated in the context of the collegium that “..100% defective… I regret my NJAC judgment.”

This is now essential to bring back the Assembly into the debate again, while the instances of executives overplay on the collegium directs towards the idea of Nehru to keep the independence of judiciary intact. Whereas, on the opaqueness of the Collegium system, Krishnamachari’s and Ambedkar’s idea take the forefront of maintaining checks and balances.

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Allahabad HC acquits rape accused after 20 years in jail

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It is a matter of national shame, national disgrace and national humiliation that a man had to suffer without committing any offence 20 years of incarceration in connection with a false rape case filed against him by a woman owing to an alleged land dispute. Why is it that a woman who files a false rape case is not similarly made to undergo rigorous imprisonment for at least the same period which the man had to undergo? Why our lawmakers most shamelessly, senselessly and stupidly not do anything on this score?

It must be mentioned here that the Allahabad High Court on January 28, 2021 in a latest, learned, laudable and landmark judgment titled Vishnu v. State of UP in Criminal Appeal No. 204 of 2021 (From Jail) (Defectivve Appeal No. 386 of 2005) came to the rescue of a man, after he wrongly suffered 20 years of incarceration in connection with a false rape case filed against him by a woman owing to an alleged land dispute. A Division Bench of Justices Dr Kaushal Jayendra Thaker and Gautam Chowdhary while passing order for release of one Vishnu, set aside the conviction order passed by a Trial Court in 2003, under Sections 376 and 506 of IPC and Sections 3(2)(v) read with Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Very rightly so!

To start with, the ball is set rolling in para 1 of this notable judgment authored by Justice Dr Kaushal Jayendra Thaker for himself and Justice Gautam Chowdhary wherein it is put forth that, “Since the date of occurrence of the incident, i.e. 16.9.2000, the accused is in jail i.e. since 20 years. Most unfortunate, aspect of this litigation is that the appeal was preferred through jail. The matter remained as a defective matter for a period of 16 years and, therefore, we normally do not mention defective appeal number but we have mentioned the same. This defective conviction appeal was taken up as listing application was filed by the learned counsel appointed by Legal Services Authority on 6.12.2012 with a special mention that accused is in jail since 20 years.”

On the face of it, the Bench then brings out in para 2 that, “By way of this appeal, the appellant has challenged the Judgment and order 24.2.2003 passed by court of Sessions Judge, Lalitpur in Special Case No.43 of 2000, State Vs. Vishnu arising out of Special Case No. 43 of 2000, under Sections 376, 506 of IPC and 3(1)(xii) read with Section 3(2)(v) of Scheduled Casts and Scheduled Tribes ( Prevention of Atrocities) Act, 1989, Police Station Mehroni, District Lalitpur whereby the accused-appellant was convicted under Section 376 IPC and sentenced to imprisonment for a period of ten years with fine of Rs.2,000/-, and in case of default of payment of fine, to undergo further rigorous imprisonment for six months; he was further convicted under Section 3(2)(v) read with Section 3(1)(xii) of Scheduled Casts and Scheduled Tribes ( Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘S.C./S.T. Act, 1989’) and sentenced to imprisonment for life with fine of Rs.2,000/- and in case of default of payment of fine, to undergo further rigorous imprisonment for six months; and he was further convicted under Section 506 IPC and sentenced to undergo rigorous imprisonment under Section 506 IPC. All the sentences were to run concurrently as per direction of the Trial Court.”

To put things in perspective, the Bench then points out in para 3 that, “The brief facts as per prosecution case are that on 16.9.2000 at about 2:00 p.m., the prosecutrix was going from her house in village Silawan, P.S. Mehroni to Haar (fields), when she reached near mango tree named ‘black mango tree’ situated on the road leading to Zaraia accused-Vishnu son of Rameshwar Tiwari who had hidden behind the bushes, caught hold of her with bad intention and behind the bushes, he committed rape with her by pressing her mouth and went away extending threat that if any report is lodged at the police station or this fact is divulged to anyone, he will kill her. She went back to the house and disclosed the whole incident to her family members who did not go to the police station due to threat and went to Lalitpur, and on 19.9.2000 she along with her father-in-law Gulkhai and husband Bragbhan hiding themselves went to the police station for reporting the said incident.”

As it turned out, the Bench then observes in para 15 that, “We are unable to convince ourselves with the submission made by learned AGA for State that she has been a victim of atrocity as well rape and, therefore, the accused should not be leniently dealt with.”

Of course, the Bench then states in para 27 that, “The evidence as discussed by learned Judge shows that the mere fact that no external marks of injury was found by itself would not throw the testimony of the prosecutrix over board as it has been found that the prosecutrix had washed out all the tainted cloths worn at the time of occurrence as she was an illiterate lady. The learned Judge brushed aside the fact that report was lodged three days later. We also do not give any credence to that fact and would like to go through the merits of the matter.”

Be it noted, it is then elucidated in para 29 stating that, “We venture to discuss the evidence of the prosecutrix on which total reliance is placed and whether it inspires confidence or not so as to sustain the conviction of accused. There were concrete positive signs from the oral testimony of the prosecutrix as regards the commission of forcible sexual intercourse. In case of Ganesan Versus State Represented by its Inspector of Police, Criminal Appeal No. 680 of 2020 ( Arising from S.L.P. ( Criminal ) No.4976 of 2020) decided on 14.10.2020 wherein the principles of accepting the evidence of the minor prosecutrix or the prosecutrix are enshrined the words may be that her testimony must be trustworthy and reliable then a conviction based on sole testimony of the victim can be based. In our case when we rely on the said decision, it is borne out that the testimony of the prosecutrix cannot be said to be that of a sterling witness and the medical evidence on evaluation belies the fact that any case is made out against the accused.”

It is also worth noting that it is then stated in para 30 that, “The evidence of Dr. Smt. Sarojini Joshi, Medical Officer, PW-4 C.H.C., Mehroni who medically examined the prosecutrix on 19.9.2000 at 8:45 p.m., found no external or internal injury on the person of the victim. On preabclomen examination, uterus size was 20 weeks and ballonement of uterus who was present. On internal examination, vagina of the victim was permitting insertion of two fingers. Internal uterine ballonement was present. The victim complained of pain during internal examination but no fresh injury was seen inside or outside the private part. Her vaginal smear was taken on the slide, sealed and sent for pathological investigation for examination. The doctor opined both in occular as well as her written report that the prosecutrix was having five months pregnancy and no definite opinion about rape could be given.”

Furthermore, it is then stated in para 31 that, “In the x-ray examination, both wrist A.P., all eight carpal bones were found present. Lower epiphyses of both wrist joints were not fused. All the bony epiphyses around both elbow joints were fused. In the supplementary report, the doctor opined that no spermatozoa was seen by her and according to the physical appearance, age of the victim was appearing to be 15 to 16 years and no definite opinion about rape could be given.”

What is even more glaring is thus stated in para 32 that, “We find one more fact that despite allegation that rape is committed as alleged by the prosecutrix, there are no injuries on the private part of the lady, who is a fully grown up lady and who was pregnant and is said to have been threshed. Further, there was a motive on the part of complainant that there was land dispute between the parties. In statement of prosecutrix in her cross examination on 23.5.2002, she stated that it was her husband and father-in-law, who had lodged the compliant. Thereafter, learned Judge closed the cross examination of PW-1 and recorded it further on 24.5.2002. The First Information Report is also belatedly lodged by three days is the submission of the counsel Amicus Curiae appointed by High Court.”

Adding more to it, the Bench then makes it known in para 33 that, “As far as the medical evidence is concerned, there are three emerging facts. Firstly, no injury was found on the person of the victim. We are not mentioning that there must be any corroboration in the prosecution version and medical evidence. The judgment of the Apex Court rendered in the case of Bharvada Bhogin Bhai Hirji Bhai Versus State of Gujarat, AIR 1983 SCC page 753, which is a classical case reported way back in the year 1983, on which reliance is placed by the learned Session Judge would not be helpful to the prosecution. The medical evidence should show some semblance of forcible intercourse, even if we go as per the version of the prosecutrix that the accused had gagged her mouth for ten minutes and had thrashed her on ground, there would have been some injuries to the fully grown lady on the basis of the body.”

While still continuing further, the Bench then adds in para 34 that, “In our finding, the medical evidence goes to show that doctor did not find any sperm. The doctor categorically opined that no signs of forcible sexual intercourse were found. This was also based on the finding that there were no internal injuries on the lady who was grown up lady.”

Needless to say, it cannot be dismissed lightly that it is then pointed out in para 35 that, “The factual data also goes to show that there are several contradictions in the examination-in-chief as well as cross examination of all three witnesses. In her examination-in-chief, she states that incident occurred at about 2:00 p.m. but nowhere in her ocular version or the FIR, she has mentioned that she was going to the fields with lunch for her father-in-law. This statement was made for the first time in the ocular version of the husband of the prosecutrix i.e. PW-3 and that it was father-in-law who narrated incident to the police authority. The father-in-law as PW-2 in his testimony states that he was told about the incident by her daughter-in-law (Bahu) on which he complained some villagers about the accused who denied about the incident, therefore, they decided to go to the police station on the next day but the police refused to lodge the report on the ground that no one was present in the police station, therefore, they went on third day of the incident to lodge the FIR. After this, again he contradicts his story in his own statement recorded on cross-examination on the next date stating that the incident was told by his daughter-in-law to his wife who told him about the same. There is further contradiction in the statements of this witness. In examination-in-chief he states that the parties called for Panchayat but there is nothing on record that who were the persons called for Panchayat. If the pregnant lady carries fifth month pregnancy is thrashed forcefully on the ground then there would have been some injury on her person but such injuries on her person are totally absent.”

To be sure, it would be imperative to mention here that it is then stated in para 36 that, “For maintaining the conviction under Section 376 Cr.P.C., medical evidence has to be in conformity with the oral testimony. We may rely on the judgment rendered in the case of Bhaiyamiyan @ Jardar Khan and another Versus State of Madhya Pradesh, 2011 SCW3104. The chain of incident goes to show that the prosecutrix was not raped as would be clear from the provision of section 375 read with Section 376 of IPC.”

What also needs noting is that it is then stated in para 37 that, “The judgment relied on by the learned Amicus Curiae for the appellant will also not permit us to concur with the judgment impugned of the learned Trial Judge where perversity has crept in. Learned Trial Judge has not given any finding as to fact as to how commission of offence under Section 376 IPC was made out in the present case.”

Of particular significance is what is then stated in para 38 that, “Section 3(2)(v) of Scheduled Castes and Scheduled Tribes ( Prevention of Atrocities) Act, 1989 is concerned, the FIR and the evidence though suggests that any one or any act was done by the accused on the basis that the prosecutrix was a member of Scheduled Castes and Scheduled Tribes then the accused can be convicted for commission of offence under the said provision. The learned Trial Judge has materially erred as he has not discuss what is the evidence that the act was committed because of the caste of the prosecutrix. The sister-in-law of the prosecutrix had filed such cases, her husband and father-in-law had also filed complaints. We are unable to accept the submission of learned AGA that the accused knowing fully well that the prosecutrix belonged to lower strata of life and therefore had caused her such mental agony which would attract the provision of Section 3(2)(v) of the Atrocities Act. The reasoning of the learned Judge are against the record and are perverse as the learned Judge without any evidence on record on his own has felt that the heinous crime was committed because the accused had captured the will of the prosecutrix and because the police officer had investigated the matter as a atrocities case which would not be undertaken within the purview of Section 3(2)(v) of Atrocities Act and has recorded conviction under Section 3(2)(v) of Act which cannot be sustained. We are supported in our view by the judgment of Gujarat High Court in Criminal Appeal No.74 of 2006 in the case of Pudav Bhai Anjana Patel Versus State of Gujarat decided on 8.9.2015 by Justice M.R. Shah and Justice Kaushal Jayendra Thaker (as he then was).”

No doubt, it is then rightly stated in para 39 that, “Learned Judge comes to the conclusion that as the prosecutrix belonged to community falling in the scheduled caste and the appellant falling in upper caste the provision of SC/ST Act are attracted in the present case.”

What also needs to be noted is that it is then brought out in para 40 that, “While perusing the entire evidence beginning from FIR to the statements of PWs-1, 2 and 3 we do not find that commission of offence was there because of the fact that the prosecutrix belonged to a certain community.”

As a corollary, the Bench then holds in para 42 that, “In view of the facts and evidence on record, we are convinced that the accused has been wrongly convicted, hence, the judgment and order impugned is reversed and the accused is acquitted. The accused appellant, if not warranted in any other case, be set free forthwith.”

Damningly, the Bench then states in para 45 that, “We find that in the State of U.P. even after 14 years of incarceration does not even send the matter to the Magistrate for reevaluation the cases for remission as per mandate of Sections 432 and 433 of Cr.P.C. and as held by Apex Court in catena of decisions even if appeals are pending in the High Court. The accused in present case is in jail since 2000.”

More damningly, the Bench then observes in para 47 that, “Section 433 and 434 of the Cr.P.C. enjoins a duty upon the State Government as well as Central Government to commute the sentences as mentioned in the said section. We are pained to mention that even after 14 years of incarceration, the State did not think of exercising its power for commutation of sentence of life imprisonment of the present accused and it appears that power of Governor provided under Article 161 of the Constitution of India are also not exercised though there are restriction to such power to commute sentence. The object of Sections 432 read with Section 433 of the Cr.P.C. is to remit the sentence awarded to the accused if it appears that the offence committed by him is not so grave. In our case, we do not see that why the accused is not entitled to remission. His case should have been considered but has not been considered. Remission/ commutation of sentence under Sections 433 and 434 of the Cr.P.C. is in the realm of power vested in the Government. The factual scenario in the present case would show that had the Government thought of taking up the case of the accused as per jail manual, it would have been found that the case of the appellant was not so grave that it could not have been considered for remission / commutation.”

Most damningly, the Bench then holds in para 48 that, “Most unfortunate, aspect of this litigation is that the appeal was preferred through jail. The matter remained as a defective matter for a period of 16 years and, therefore, we normally do not mention defective appeal number but we have mentioned the same. This defective conviction appeal was taken up as listing application was filed by the learned counsel appointed by Legal Services Authority on 6.12.2012 with a special mention that accused is in jail since 20 years.”

No wonder, the Bench then rightly observes in para 49 that, “Seeing this sorry State of Affairs, we request the Registrar (Listing) through the Registrar General to place the matter before Hon’ble the Chief Justice that periodical listing of matters be taken up in the High Court so that those who are in jail for more than 10 or 14 years, where the appeals are pending, may at least get their appeal heard which are mainly jail appeals.”

Finally, it is then held in the last para 52 that, “A copy of this judgment be sent to the Law Secretary, State of U.P. who shall impress upon the District Magistrates of all the districts in the State of U.P. to reevaluate the cases for remission after 14 years of incarceration as per mandate of Sections 432 and 433 of Cr.P.C. even if appeals are pending in the High Court.”

To sum up, it is high time that a major surgery is done of the judicial system prevailing in lawless states like UP which accounts for maximum pending cases in India and Bihar. When there can be 4 High Court Benches for peaceful states like Maharashtra and Assam, 3 for Karnataka and two for Madhya Pradesh and West Bengal then why just one Bench for UP and here too West UP where maximum cases of crimes take place accounting for more than half of the total pending cases in UP has none and so also Bihar has none even though PM Narendra Modi represents UP from Varanasi and Law Minister Ravi Shankar Prasad from Patna still why no effort is made to create more High Court Benches in these two States? This is the real tragedy!

Maharashtra tops in Justice Index List as it is doing very good and still has 4 High Court Benches. The former UP Chief Justice DB Bhosale who hails from Maharashtra in his capacity as Chief Justice of UP had said that in Maharashtra women can venture out even in night alone which even I have seen myself as I did my LLB from Pune but in UP women is just not safe even with family and that too in national highway where she was assaulted brutally which I am also aware of as I stay here in Meerut! What a crowning irony that still UP has least benches in India and no wonder figures in bottom of Justice Index List and same is the case with Bihar! This despite the irrefutable fact that Justice Jaswant Singh Commission had historically recommended 3 High Court Benches for UP but not a single created for UP even though Benches were created for other states like Maharashtra in Aurangabad, Madurai in Tamil Nadu and Jalpaiguri in West Bengal! This is the real rub! The 230th Law Commission Report made in 2009 recommended for more high court benches not just for Maharashtra or Karnataka alone but for big states like UP and Bihar also but Centre is clearly culpable for not doing anything on this score for which it must hang its head in shame as it is not ready ever to do anything on this score! This case is the biggest testimony and biggest reminder that a major surgery of our decrepit, overburdened and moribund judicial system that exists especially in UP and Bihar is the crying need of the hour and it cannot be put in cold storage any longer! How long will the most populated State that is UP and Bihar be taken for granted? How long will the just demand for more High Court Benches still be ignored by the Centre? This alone explains why Rahul Gandhi terms people of South more mature as we saw how in Karnataka two more High Court Benches were created for Dharwad and Gulbarga for just 4 and 8 districts just because Centre could not resist their unrelenting pressure whereas on contrary for more than 20 districts of West UP not a single Bench is being created even though Justice Jaswant Singh Commission had recommended the same! What can be a bigger shame and more despicable than this which is the worst violation of Article 14 which talks about right to equality! A single High Court Bench for UP was created by Jawaharlal Nehru in 1948 in Lucknow just 200 km away from Allahabad where High Court is located but no PM dares to create even a single Bench in any hook and corner of UP other than Lucknow! This is the real tragedy! Even holy cities like Kashi, Ayodhya and Mathura which is also in West UP are considered “worthless cities” not fit to be given a High Court Bench! This is what pinches me most! Centre’s conduct on this key issue of creating more Benches in UP and Bihar is most deplorable, despicable and dangerous which cannot be justified under any circumstances! It is high time and Centre must act but till now Centre has chosen to emulate the past government’s dastardly stand on this which is most hurting to say the least! Most shocking!

Postscript: Even as I am writing this news is pouring in that goons who first had misbehaved with a girl later killed her father openly in Hathras in West UP after coming out from jail. Such instances are galore. The lawyers of 22 districts of West UP are still on strike since last many days which will continue till March 9 as a senior and eminent lawyer named Omkar Singh Tomar whom I knew as a very warm person always carrying a smile on his face had committed suicide in Meerut under suspicious conditions. When will Centre act? When will it wake up?

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