On a Sunday morning, a black Harl e y D a v i d s o n motorcycle passes by you on a tree lined road in Central Delhi, you might think, the man riding it may be a rich man’s son, an industrialist, a CEO, but you wouldn’t ever dream that a Judge riding a superbike. In the lingo of today’s generation, we don’t imagine judges and lawyers are ‘cool people’, all we imagine is black coats, lots of files and a white coloured sedan car.
Times are changing, Judges and lawyers also have a life outside of their work, and our Chief Justice of India Sharad Arvind Bobde is very high up the ‘cool quotient’, it is not uncommon for him to be seen riding a cruiser style motorcycle, like a Harley Davidson, which has been his passion for years, in fact, the gossip in Delhi is that he liked bikes since his college days, he used to own a bullet. His other liking is photography, he also encouraged a project named Architecture of Justice: A Pictoral Walk through of the Supreme Court and High Courts of India. The coffee table book is a photo collection of all 24 High Courts and Supreme Court, the book was authored by fatherson duo, Vinay Thakur and Amogh Thakur. Not many may know, Justice Bobde was the head of the Supreme Court editorial committee.
Justice Bobde has also taken photos of a fully illuminated Supreme Court when the work on the book, Architecture of Justice was underway.
Just like our Judges, lawyers also have passions for riding and driving. Sr. Adv. Mukul Rohatgi and Sr. Adv. Harish Salve, own a Bentley. Some months ago, Rohatgi also purchased a BMW 7 series. Rohatgi served as the Attorney General of India, while Salve served as the Solicitor General of India. Salve loves taking his Bentley for a spin on early mornings when there is less traffic and Rohatgi drives his car sparingly. Sr. Adv. Dr. Abhishek Manu Singhvi can been seen driven around in a BMW 5 series car. Dr. Singhvi has served as the Additional Solicitor General of India. All the three advocates are known to charge top dollar fees, with clients ready to pay anywhere between Rs. 20 lakh to 35 lakh per appearance in the Supreme Court, and that is not for extraordinary matters, for which fees is extraordinary.
Sr. Adv. Parag Tripathi, who is counted among the highest paid lawyers, is driven around in a Toyota Camry. But the gossip in town is if you want to know Parag, it is not through his car, but through his wine collection, on a good day, the rare selection of wine he consumes, costs more than a decent sedan. He also has a passion for collecting rare coins. A good car needs a good address, Parag Tripathi has bought a bungalow for an undisclosed amount in tony Golf Links, which is home of some of the country’s top industrialists, while Singhvi has bought a bungalow in Jor Bagh, where he would be shifting when it is ready. It is rumoured that Rohatgi, whose office is in a stately bungalow in upscale Sunder Nagar, also has bought a prime property in Golf Links.
Adv. Raian Karanjawala, Managing Partner of Karanjawala & Co. loves to be driven around in a German car, his choice of vehicle is an Audi A7 L, which is the longer wheelbase version of the A7. But he is known as a man of taste, he has arguably the best collection of ties, from Hermes to Stefano Ricci, it is rumoured that his shirts are tailored from Turnbull & Asser in London, or Ascot Chang in Hong Kong. He resides in a bunglow at Maharani Bagh and his office is situated in a prime property on KG Marg in the central business district of Connaught Place, an area known of have some of the highest rental rates in the world.
While Sr. Adv. Siddharth Luthra owns a Mercedes Benz S Class, he also was recently seen driving around town in a Mercedes Benz convertible. In fact it is said that Luthra had gone to Mussorie two years ago for a holiday in his Mercedes GL 350 SUV, and his mother had a hard time getting in and out of the vehicle, so he bought a Mercedes S Class and had it delivered in Mussorie. Siddharth Luthra has earlier served as the Additional Solicitor General of India. Sr. Adv. Geeta Luthra is driven around in top of the line Range Rover. Sr. Adv. Pinky Anand, Additional Solicitor General of India, is chauffer drivenin a BMW 5 series and a Volvo S90, both known for their safety features.
Needless to say, India’s top advocates and managing partners of law firms don’t only own one car, they have multiple. Like Rohatgi owns a Skoda Superb, Singhvi a Toyota Camr y and Fortuner, Karanjawala a Mercedes E Class, Luthra a Mercedes S400 red top convertible.
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The traceability rule under the IT Rules 2021: A step forward or backward?
The ministry for electronics and IT notified Information Technology (intermediary guidelines and digital media ethics code) rules 2021. These new IT rules supersede the old IT rules of 2011. The new IT rules are more comprehensive in nature and introduces multi facets guidelines which remain dormant in the old IT rules.
The most essential amendment in the new IT rules is rule 4(2) which imposes an obligation on the social media forums providing messaging services to trace the first originator of the message or a social media post which affects the integrity, sovereignty of the country or affects the relations with other countries and anything which incites public order or portrays sexual abuse on women and children. This rule is embodied with a penal punishment for not less than 5 years under IPC 1860 and it does not obligate the intermediary to disclose the contents of the message of the first originator.
The traceability rule has drastically affected the social media platforms like WhatsApp LLC, Facebook and Twitter etc. and makes them aggrieved as the traceability of messages between the first originators and receivers undermines privacy protection policies and infringes the fundamental rights of its users, especially the right to privacy under Article 21 and right to freedom of speech and expression under Article 19(1) of the Indian constitution. Further, the traceability rule also puts an end to the end-to-end encryption of the messages between the first originators and receivers which. The third concern is about the creation of a platform or a portal for the collection and storage of billions of messages exchanged between people on social media platforms.
It must be kept in mind that the fundamental rights as enshrined in Indian Constitution are not absolute in nature and they are curtailed by the reasonable restriction. For example, the right to freedom of speech and expression under Article 19 (1) is not absolute in nature because it is curtailed by the reasonable restriction under Article 19 (2), similarly the right to privacy under Article 21 is also subject to reasonable restrictions which is apparent from the Apex court decisions in Justice K.S. Puttaswamy (Retd.) case, Ritesh Sinha case and Modern Dental College and Research Centre case. Further, rule 4 (1) (a), also ensures the principle of natural justice to the first originator by sending them, a prior intimation notice specifying all the grounds and reasons for the action of the elimination of certain information also gives them a right to reply to that notice.
On a perusal of rule 4(2), it can be ascertained that the life of the citizens of this country is not at risk and the traceability rule is only introduced to catch the culprit who attempts to downgrade India’s reputation in the world, puts the integrity and sovereignty of this country at bay and attempts to degrade the women and children who are a victim of sexual abuse but the traceability principle suffers from one flaw that is the issuance of direction to Social media intermediaries by the Government and this flaw can be cured by amending rule 4 (2) to the extent that the direction as given by Government must bear the judicial approval. Therefore, the new IT rules are a step forward to protect its citizens in an efficacious manner.
Madras High Court order on ‘right to be forgotten’: Analysis and critique
Recently, a Single-Judge Bench of the Hon’ble Madras High Court headed by Hon’ble Mr. Justice N. Anand Venkatesh, had given an important order regarding ‘right to be forgotten’ (‘RTBF’) or right to erasure as a facet of the fundamental ‘right to privacy’, in an anonymous reported writ petition with the citation W.P. (MD). No. 12015 of 2021 (‘High Court Order’). This development follows another remarkable order on RTBF announced previously by the Hon’ble Delhi High Court in Jorawer Singh Mundy @Jorawar Singh Mundy vs. Union of India and Ors., 2021 SCC OnLine Del 2306 (‘Mundy Case’), which has been analysed and critiqued by myself in an earlier issue for The Daily Guardian dated June 1, 2021.
The High Court Order is the first of its kind, as it interestingly completely masks the identity and any personal data/information of the petitioner who is seeking to obtain the RTBF. As recorded by the High Court, the anonymous petitioner had previously faced criminal proceedings of offences for which punishments are prescribed under Section 376 (Punishment for offense of rape) and Section 417 (Punishment for offense of cheating) of the Indian Penal Code (‘IPC’). Eventually, the petitioner was ultimately convicted of the above-mentioned offences by the Trial Court in September 29, 2011. Subsequently, the petitioner had appealed this judgment before the High Court, ultimately resulting in their acquittal from all charges in a judgment delivered on April 30, 2014 (Crl. A. (M.D.). No. 321 of 2011).
However, the petitioner’s name kept getting reflected in the judgment rendered by the High Court and was freely accessible to anyone who typed their name in Google Search. Even though the petitioner was acquitted, the fact is that they have been identified as an accused throughout the previous judgment. Consequently, the petitioner argues that this causes a serious impact on the reputation of the petitioner in the eyes of the society. Therefore, the petitioner wishes for the High Court to grant an order redacting their name from the judgment of the High Court.
HIGH COURT’S ANALYSIS
The High Court Order observes that by virtue of the previous acquittal order, the petitioner could no more be identified as an accused in the eye of the law. Given the fact that the world is under the grips of social media, the background of any person could be assessed by everyone entering into a Google Search and collecting data on the petitioner. Moreover, the High Court observes that there can be no assurance that the data obtained from a Google Search on an individual is authentic.
Yet, as the data is publicly available, it creates a first impression on mind of the one using Google Search. Depending on the data provided, the Google Search can make or mark the characteristic of a person in the eyes of the society. The High Court Order observes that in today’s world, everyone attempts to portray themselves in the best possible way on social media. It is one of the new challenges faced by the world and has everyone grappling to deal with the harbinger of further complexities awaiting mankind.
Moving forward, the High Court Order observes that the Central Government is in the process of finalizing a Data Protection legislation which will effectively protect the data and privacy of a person. It also observes that the legislature has enacted laws protecting the identity of victims of certain crimes who are women and children, due to which their names are not reflected in any order passed by a Court and automatically stand redacted, ensuring that no one is able to identify such a victim.
Subsequently, the High Court Order observes that while the person and privacy of the individual are protected by such laws, no such legal protection has been similarly extended to accused individuals who have been ultimately acquitted from all charges in a criminal case. It is due to this reason that an individual who was acquitted of all charges approached the High Court for a similar remedy, seeking redaction of their name from the previous judgment passed by the High Court.
HIGH COURT’S ORDER
The High Court recorded that the petitioner’s request for seeking a RTBF order could be made only by placing reliance upon Article 21 of the Indian Constitution, which mentions the fundamental right to life and personal liberty. Recalling the Nine-Judge Constitution Bench judgment of the Hon’ble Supreme Court in Justice K.S. Puttaswamy (Retd.) vs. Union of India, (2017) 10 SCC 1 (‘Puttaswamy Judgment’), the High Court stated that the right to privacy has been held to be a fundamental right which is traceable to Article 21 of the Constitution. The High Court Order also observed that a similar case had come up before the Delhi High Court (implicitly referring to the Mundy Case), where the Delhi High Court had granted a RTBF order.
Moving forward, the High Court remarked that if the essence of the Puttaswamy Judgment was applied to the petitioner’s writ seeking RTBF in the present case, “obviously even a person, who was accused of committing an offense and who has been subsequently acquitted from all charges will be entitled for redacting his name from the order passed by the Court in order to protect his Right of Privacy.” Consequently, the High Court held that a prima facie case had been made out by the petitioner, entitling them to redact their name from the previous High Court judgment. However, as such a case had come up for the first instance before the High Court, it also sought to hear the Advocates appearing in the case and members of the Bar in order to understand the various ramifications that the High Court Order may have, before writing a detailed judgment.
There are seven reasons on the basis of which I argue that the High Court Order in the present case is flawed. First, similar to the Mundy Case before the Delhi High Court, the Madras High Court opted to make a prima facie review. However, unlike the former case, the Madras High Court in the present case did not identify competing interests or rights, which would necessitate a balancing of RTBF with such competing interests or rights. Consider for example the ‘fundamental right to freedom of speech and expression’ of citizens and the ‘fundamental right to practice any profession, or to carry any occupation, trade or business’ (which would also cover news reportage and journalistic professions or work by citizens) are important competing interests/rights, which were not mentioned and balanced against RTBF by the High Court Order.
Second, apart from the above-mentioned competing interests/rights, there is a need for courts to have maintenance of transparency, as well as the need for the citizens/general public to have ‘access to information’ (which enables them to exercise some fundamental rights, such as right to freedom of speech and expression). Notably, the High Court Order in its prima facie review did not mention or attempt to balance these competing interests/rights against RTBF.
Third, since criminal proceedings are a part of the public record, it follows that the public officials and Indian citizens should have a right to know if an individual was tried for a grave offence under the IPC or other laws, especially offences such as ‘rape’ or other sexual offences, which was the case in the previous judgment mentioned in the present High Court Order. Importantly, rape or other sexual offences are serious actions against the bodily autonomy, dignity, decisional privacy and the person of an individual. The lack of legal protection to an individual who is acquitted of a rape charge shouldn’t therefore be equated with the protection of masking identities or personal data that legislature has provided to woman or child victims in cases involving serious offences such as those involving rape or other sexual offences.
Fourth, as pointed by myself in a previous article for The Daily Guardian (dated June 1, 2021), the fundamental right to privacy created by the Puttaswamy Judgment does not have a ‘horizontal application’ (i.e. exercise of an individual’s fundamental right against a person or entity other than the State). Consequently, assuming but not admitting that the petitioner’s RTBF exists in the present case, private entities such as Google cannot be ordered by the High Court to enforce RTBF as a facet of fundamental right to privacy. Further, while the ambit of the High Court’s writ jurisdiction under Article 226 of the Constitution is wider than the Supreme Court’s writ jurisdiction under Article 32, the High Court’s powers cannot be used to enforce fundamental rights against non-State actors or private entities which do not perform a ‘public function’.
Fifth, the High Court Order is contrary to the position taken by the Hon’ble Gujarat High Court in Dharmraj Bhanushankar Dave vs. State of Gujarat, S.C.A. No. 1854 of 2015, where the High Court had rejected a plea similar to the present RTBF order. In the Dharmraj Dave case, a permanent restrain on free public exhibition of a judgment and order in which the concerned petitioner was acquitted from criminal proceedings involving ‘murder charges’ was being sought. The contrary stances taken by Madras High Court, as well as the previous Delhi High Court order in the Mundy Case furthers judicial incoherence on RTBF in India.
Sixth, in absence of any law enacted by the Indian Parliament to enable courts to grant RTBF and in light of the ‘horizontal-application’ nature of the fundamental right to privacy as propounded by the Puttaswamy Judgment, private entities such as Google cannot be compelled to redact the identity of individuals from the internet, especially when they are merely linking information or providing location of webpages detailing a reported court order. Lastly, it is pertinent to point out that there is neither any international instrument or treaty entered into by India nor any customary law which imposes any obligations on States to create laws or legislative mechanisms to provide an individual a RTBF or right to erasure of personal data, especially against non-State actors or private entities.
In light of the above-mentioned critique, I have sought to establish that the Madras High Court’s order in the present case is flawed. However, the increasing number of RTBF applications before various Indian High Courts highlight an imminent need for the Parliament to consider enacting a statutory mechanism governing RTBF or passing a constitutional amendment creating a ‘horizontal application’ of fundamental right to privacy, which would enable judicial authorities to adjudicate writ litigations invoking right to privacy under Article 21 of the Constitution to enforce RTBF against private entities such as Google. Nevertheless, it is important to bear in mind that if a RTBF is created through a statutory enactment or a constitutional amendment, much like its parent right to privacy, it cannot be an absolute right. A RTBF should not be extended to enable individuals acquitted from serious offences such as rape or other sexual offences, murder, offences relating to narcotic drugs and psychotropic substances etc.
The increasing number of RTBF applications before various Indian High Courts highlight an imminent need for the Parliament to consider enacting a statutory mechanism governing RTBF or passing a constitutional amendment creating a ‘horizontal application’ of fundamental right to privacy, which would enable judicial authorities to adjudicate writ litigations invoking right to privacy under Article 21 of the Constitution to enforce RTBF against private entities such as Google.
COVID AND LAW: WHY THE EPIDEMIC DISEASES ACT, 1897 WILL NOT BE INDIA’S BEST BET IN THESE TIMES
When Covid-19 reached India, it created a situation of chaos and naturally the law had to jump in as an instrument for social control. It was a dangerous as well as an unprecedented situation and things needed to be controlled and channelled in the right way. This gave rise to a rather intriguing question, how much of control and discretion has to be given to the Government? & Where to draw the line?
Unfortunately, we had with us the Epidemic Diseases Act, 1897 (hereinafter, ‘EDA’) an archaic law which the colonial masters enacted in response to the bubonic plague of 1896. It was passed in such a haste that it is not at all comprehensive in nature and comprises of just four sections. The law is not a remedial one and was passed as a measure to control the ‘subjects’ over whom the colonial masters enjoyed their rights, powers and privileges. The history is important to point out because EDA is a pre-independence law that does not take into account the transformation of the people of India from ‘Subjects’ to ‘Citizens’. At this juncture, it is also pertinent to note that the Supreme Court has held in the case of Navtej Singh Johar vs. UOI that the doctrine of presumption of constitutionality does not apply in the case of a pre-independence law. Having mentioned this, now let me delve a little deeper and engage with some of the very fundamental flaws of the EDA.
THE ACT IS VAGUE AND DOES NOT PROVIDE CLARITY IN ITS APPLICATION
The EDA which aims to come into play at the time of an epidemic does not provide any definition for what will be considered as an ‘epidemic’. The words ‘dangerous epidemic disease’ have been used but there is no definition whatsoever in the act which may point out to the circumstances of its application. The judgement of an epidemic has been left completely on the subjective satisfaction of the government with no metric whatsoever.
The Supreme Court’s in the case of the State of Madhya Pradesh vs Baldeo Prasad, struck down the ‘Goonda Act’ for not giving the definition of who constitutes a Goonda in the first place. Likewise here is a parallel on the same lines that the EDA does not define ‘epidemic’ anywhere in the act. The law cannot operate in imaginary circumstances without any sort of clarity/guidelines as to that effect; this makes the law vague in nature.
The Supreme Court has imported the American constitutional doctrine of ‘void for vagueness’ in the case of Kartar Singh vs. State of Punjab wherein the court deliberated on vagueness as a ground for declaring a law void. The same was further relied on in the case of KA Abbas Vs. UOI by the Supreme Court. The EDA is very general and the worry is that almost anything can be moulded to fit into its frame. Aristotle once famously said that, “The Generality of Law falters before the specifics of life” and the ‘specifics’ of the human life is the eventuality, that’s at stake here!
EDA GIVES UNFETTERED POWERS TO THE EXECUTIVE AND IS DEVOID OF ANY CHECKS OR BALANCES
The EDA is purely administrative in nature and does not contain any mechanism as to the checks and balances. If a situation is so grave where there is a threat of dangerous disease/ infection, it means that the situation is bordering to that of an emergency like scenario. The important point of consideration here is that even the emergency provisions of the Constitution cannot be invoked arbitrarily so how can the provisions of the epidemic act? There is not a single section of the act which obligates the states or the central government to place the situation in the legislature or take any sort of a constitutional approval before acting. Neither there is a provision which provides for any restrictions on the acts of the government or places a limit. The law is liable to be misused without any regard to the fundamental rights of the public. There is an over breadth-ness which is at play here and the scope of the law is extremely wide. This invokes the Supreme Court’s precedent in the case of Shreya Singhal vs. Union of India in which the court looked at the over-breadth-ness of a law and transgression of fundamental rights (in the context of sec. 66A of IT act).
The constitutional landscape of the country is changing and the Courts have been expanding the scope of the fundamental rights. The epidemic act in question does in no way stands up to the contemporary constitutional standards. Section 2 of the Act empowers the state government to take “special” measures and prescribe regulations. What is amusing here is that no indicative measures have been provided in the act and the same has been left for the government to decide. This law practically empowers the government to act on its whims and fancies. With no regard for fundamental rights, I argue that the law in issue is not a shade but a shadow which needs to be struck down.
Governance is a cumbersome task and the same becomes more difficult in precarious times, such as the one faced by the country today. What is constitutionally unacceptable is a scheme where there is a complete erosion of accountability. The quote of Justice William Douglas of the US Supreme Court is very apt in the present times (1951).
“Where discretion is absolute, man has always suffered. At times it has been his property that has been invaded; at times his privacy; at times, his liberty of movement; at times, his freedom of thought; at times, his life. Absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions.”
Although it is a fact that discretion is a tool for individualisation of justice but at the same time it must be remembered that ‘absolute discretion’ is a road to constitutional blasphemy. The time has come for the legislature to shun the EDA. A new law must be enacted that is orderly as well as constitutionally just, fair and reasonable!
THE NEED FOR POPULATION CONTROL LEGISLATION
It goes without saying that the population of India is increasing very rapidly which is a cause of grave concern for all of us especially those who are Indians. It is a no-brainer that there are so many disadvantages of population increase like the resources shrink, jobs shrink, living space shrink, water shrinks and what not! So there can be no two views that all possible steps must be taken to control population because if it is not controlled even now then not only are we going to overtake China as the world’s most populous country by 2027 as a UN report said in 2019 but shall also suffer in innumerable ways which our nation can certainly ill afford at this juncture.
It cannot be lightly dismissed that India is expected to add nearly 273 million people to its population between now and 2050. We also have to concede that with Chinese birth fertility rate expected to drop in the coming years, demographers have predicted that India with its much higher fertility rate will overtake China as the world’s most populated country by 2023 or 2024. China’s state run Global Times daily quoted Chinese demographers as saying that India’s population may overtake China’s well before 2027. How can all this be lightly dismissed?
There can be no gainsaying the irrefutable fact that increasing population is the biggest hurdle to development and we cannot take it just lying down. It is the bounden duty of our policymakers and lawmakers to ensure that population is at least controlled to some extent and all steps must be taken now to ensure the same. If population is not controlled even now then certainly our country can never become hunger free or poverty free or free from other such problems as the population rise is the root cause of all such problems with which our nation is seriously grappling also! So, it merits no reiteration that population control has to be on the top priority of the government both in the Centre and in the States also. It cannot be kept on the backburner any longer now!
As we all know, Pandit Jawaharlal Nehruji took the single biggest and the most commendable step of controlling the population of Hindus by restricting Hindus to just one marriage. Prior to Pandit Nehruji’s government framing “The Hindu Marriage Act, 1955”, Hindus both men and women could marry as many as they wanted and there was just no limit on either men or women. Lord Krishna had 16,108 wives as was reported in “The Times of India” newspaper in 2018. Similarly Ashoka also had thousands of wives and so was the case with not just kings but even among the common man and women. There was just no limit and both men and women had the liberty even during British rule to marry as many as they wanted. But Pandit Nehruji brought down both Hindu men and women to just one which is the most commendable step since independence ever taken by any PM for which Hindus must always be grateful to Pandit Nehruji! This alone explains why I always refer to Pandit Nehruji as the “Real Reformer of Hindus” but Pandit Nehruji didn’t touch Muslims as the country then was reeling fresh from the partition wounds and Nehruji didn’t want to do anything that would create insecurity among Muslims in any manner! But what about the other PM who ruled after Nehruji till PM Narendra Damodardas Modi who is ruling since last more than 7 years?
But my best friend Sageer Khan differed with me on this. He was strongly critical of Pandit Nehruji’s decision to impose monogamy on Hindus alone. He said in 1995 that, “What is UN? It is ruled by just US and UK. France, China and Russia are just servants of US and UK and China got permanent membership because of US and UK. Who created India and got it partitioned in 1947 on the basis of religion? It is again UN ruled by US and UK. UN loves Pakistan and hates India. So never get surprised that why Taliban aided, abetted and armed by Pakistan have taken over Afghanistan and UN watching with smile on face! Hindus, Shia Muslims, Sikhs, Indian Muslims who migrated to Pakistan called Mohajjirs are raped, insulted, punished and then killed! Yet UN is proud always of Pakistan as it is the brain child of US and UK who rule UN and who want to crush India as patriotic Indians especially Hindus in large numbers forced Britishers to leave India. It was UK who did not forget its defeat and so again advised Nehru our first PM to disregard the advice of Dr BR Ambedkar who favoured retention of polygamy in his Hindu Code Bill 1951 and he did accordingly by abolishing polygamy and polyandry among Hindus and also heeded to UK’s decision to not abolish polygamy among Muslims so that slowly Muslims become majority and Hindus become minority and India never gets stability and they could again come back to rule India. Why monogamy imposed only on Hindus alone? Muslims enjoy maximum liberty in India all over the world and it is Muslims who can still indulge in polygamy even though Nehru abolished it among Hindus in 1955. This is most unfair and must be strongly condemned. Why Hindus are forced to become Muslims to marry more than once? Polygamy should have been abolished for both or for none but Nehru very wrongly imposed monogamy only on Hindus which is most disgraceful and cannot be ever justified. Similarly why Muslims fight with Hindus in Ayodhya, Kashi and Mathura which have been Hindu worshipping sites since ages. Should Ram temple be built in Mecca, Medina or in Ayodhya? Muslims should never fight over Ayodhya, Kashi and Mathura which since thousands of years have been Hindus sites of pilgrimages just like Mecca and Medina are for Muslims. Muslims should be treated on par with Hindus and polygamy should be abolished among us also. This will greatly help in controlling the population also in our country. When Hindus can be brought down to one both male and female then why can’t Muslim males be also not brought down to one and Muslim females are already one as they unlike men cannot marry more than one? Centre and our law makers must give it a serious thought!”
For far too long this most pressing issue of uniform civil code has been hanging fire and our law makers have just callously preferred to always look the other way around on it. Why is it that film actor Dharmender had to become Muslim to marry a second time? Why is it that the son of former Chief Minister of Haryana – Bhajan Lal named Chander Mohan also had to change his name to Chander Mohammed and so also Anuradha Bali had to assume a Muslim name Fizza and convert to Islam just to marry each other as Chander was already married and in Hindu religion one cannot marry than one? There are millions of such cases where the conversion is purely on the temptation to marry more than one women! Why can’t this sham end once and for all? Why can’t law be same for one and all? Will it not help control population also if monogamy is imposed on one and all?
To put it mildly: When Hindus can be made to shun polygamy and polyandry in 1955 then why can’t the same be done among Muslim men in 2021? My best friend Sageer Khan also always wanted Muslims to abolish polygamy as it is a bad practice and cannot be ever condoned! Sageer Khan also used to often ask: “Why Centre trembles to do anything on this score? Why can’t monogamy be imposed equally on people of all religion alike? It has become a fashion to marry more than one. This is the root cause of increase in population in India.” Centre must seriously ponder on it.
If Centre takes decisive action and after 75 years of independence summons the courage to abolish polygamy among people of all religions just like Pandit Nehruji summoned to do the same for Hindus in 1955 not just among men but also among women that is abolishing both polygamy and polyandry then population can be controlled to a great extent! But what an unbeatable irony that in last 75 years of independence no PM nor any Supreme Court Judge has gathered the guts, gall and gumption to call a spade a spade and abolish polygamy among people of all religion as my best friend Sageer Khan always advocated also!
Of course, it goes without saying that using force to control population can never be feasible nor advisable! It would only worsen the situation further! We all saw how late Sanjay Gandhi who during Emergency in 1975-77 had thought that he could control population by using forcible methods of sterilisation floundered as he enjoyed unbridled powers and Congress party also lost power as people certainly didn’t approve of it in any way. It must be underscored that Centre as also the States must now launch more awareness campaign to ensure that the people themselves become more aware of the dangerous consequences of over population and should work most actively in this direction!
In addition, Centre and States must give more and more concessions to those families where the children are just one or two. This can certainly go a long way in motivating others to follow suit! But both Centre and States ought to be more proactive on it as population explosion is the most serious problem confronting India since last many years! It merits no reiteration that a dormant snail like approach would only serve in further exacerbating this problem further which our country can ill afford at this juncture! So now the ball is clearly in the court of the government!
It must be strictly ensured that child marriages does not take place to achieve fertility decline and this holds true especially in villages and remote areas where we keep hearing increasing incidents of child marriages taking place even now! There has to be zero tolerance on child marriages as it is because of child marriages that a women has many children and that too very early in her life! If child marriage is seriously and strictly checked it will ensure that population is also checked to a great extent.
Not just this, the marriage age must also be increased to 25 for both men and women. This can go a long way in ensuring that both men and women attain maturity when they marry and in their early youth don’t indulge in the mistake of having many children. This can prove to be a big leap in the direction to control population to a great extent!
It also must be mentioned here that serious, sincere and steady counselling must be done of all the parents the moment they give birth to one child irrespective of whether it is male or female to not produce more children. When parents have two children then they must be shown the copies of the laws of such states like UP, Assam and Rajasthan among others where having more than 2 children carries lots of disadvantages and bars one from several benefits! On the contrary, those who have just one child can get several benefits like preference in admission in all educational institutions and preference to single child in government jobs as we see in case of UP’s population draft bill also!
It cannot be overemphasized that parents must be also made more aware about the preference that is given to a single child in getting free health care facility and insurance coverage also till he attains the age of twenty years as we again see in the case of UP’s draft population bill which is also welcome! This will certainly propel parents to not have more than one children! Also, when parents will be barred from getting many benefits and from either contesting elections or holding any public post or getting other similar benefits this also can prove to be a big checker in population increase but apart from just creating strict laws what matters most is their implementation in totality and on one and all!
In conclusion, it is high time and now polygamy should be completely abolished in India just like Pandit Nehruji abolished it among Hindus in 1955! But the moot question certainly is: Can any PM ever dare to do what Pandit Nehruji did not do? Impose monogamy on one and all and not just Hindus alone as he did in 1955!
Sanjeev Sirohi, Advocate
Section 66A of IT Act and its impact: An analysis
In March 2015, the Supreme Court of India in the case of Shreya Singhal vs. Union of India declared Section 66A of the Informational Technology Act, 2020 to be void ab initio. The section made it punishable to send any information through a computer resource or communication device for the purpose of causing “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, or ill-will fall”. The vagueness of the section rendered it incapable of distinguishing between mere discussion or advocacy and when such discussion or advocacy leads to incitement. Therefore, the apex court rightly struck down the section for being vague and violative of the freedom of speech and expression guaranteed by the Indian Constitution, by explicitly stating “What may be offensive to one, may not be offensive to another”.
Normally, declaration of unconstitutionality renders a provision void ab initio and any previous, pending or subsequent actions taken under said provision comes to an immediate halt. However, even after six years of being declared void, the notorious section 66A is still in effect – not only are some of the pending cases still active, but fresh cases are being instituted by the police and judicial administration to prosecute individuals who are found in violation. As of July 2021, independent data suggest as many as 810 cases registered under section 66A are still pending in district courts across 11 states.Official data in this regard is unavailable as the National Crime Records Bureau (NCRB), which is the body responsible for collection and publication of data pertaining to crimes in India, declared in 2016 that it will not publish data on Section 66A in subsequent reports. Interestingly, NCRB published this statement after it stating that the previously published record in 2015 and 2016 which showed that despite the Supreme Court’s ruling, people were still being arrested under the section, was incorrect due to internal data processing system. However, there is ample evidence of the section still being used. For instance, in 2017 a case under Section 66A was registered against an 18 year old Zakir Ali Tyagi who posted a comment on Facebook, after Uttarakhand High Court declared River Ganges to be a living entity, asking that since “The Ganga has been declared a living entity; will criminal charges be initiated if someone drowns in it?”. Further, in the year 2016, the magistrate was notified by the prosecutor in the case of State v. Mohd. Sakir, that the sole section under which the accused was being tried upon had been declared unconstitutional by the apex court and yet a non-bailable warrant was issued against the accused.
After the Supreme Court was approached by a human rights organisation to direct collection of data and to direct state machineries to comply with the Shreya Singhal judgement, the apex court in 2019 granted the same. During the proceedings, it was also brought to notice by the Union of India that all state governments have been already asked to furnish data on Sec 66A cases and also to close them. Some states, like Kerala readily responded that there were 19 pending cases and the same were being closed. However, despitethe direction, cases are still being registered. In March 2020, the Patna High Court granted bail to two petitioners who were registered under sec. 66A and had been in custody for 6 months.
It has been observed that even when the unconstitutionality of section 66A is brought to notice during proceedings, the charge changes in form and not substance. As in the aforementioned case of Zakir Ali Tyagi, the allegations were converted to Section 66, regarding computer related offences, and thereafter once he was released on bail, the offence of sedition was added. Further, in the absence of Sec 66A, an increase in cases of Sec 66 and Section 67, offence regarding online obscenity has been noted.
The systemic failure to ensurecomplete termination of the arbitrary usage of unconstitutional laws results in arbitrary actions by the law enforcement machineries and it undermines freedom of speech and expression as well as the judicial precedential authority.This problem needs more rigorous means to discontinue section 66A from application for all practical purposes, even on the lowest levels of law enforcement. Some possible solutions could be directing supervisory officers at police stations to overlook that no new complaints are registered under the unconstitutional provision. If a complaint is still registered, coercive action must be taken against the erring officer, and if need be, register cases under Sec 166A of the Indian Penal code which provides punishment for disobeying directions under the law. Another point, as pointed out by the Attorney General of India, instead of mentioning in footnotes, unconstitutional provisions should be emphasised upon with brackets near such provisions. Lastly, since most states register complaints under the Criminal Tracking Network and systems (CTNS), which is online in nature, such sections should be disabled.
In a recent study, India ranked 25 out of 33 countries, even lower than Russia, in free speech and it was found that there’s a stark decrease in freedom from 2015 to 2021. In light of allthe facts considered, the factors to assess restriction on freedom of expression need to account for both legal and illegal application of law. Lastly, undermining of the right to free speech in the largest democracy in the world should act as a reminder to Martin Luther King Jr.’s words “Injustice anywhere is a threat to justice everywhere”.
Direction to undergo other sentences after life sentence illegal: SC
In a well-reasoned, well-analysed, well-articulated, well-substantiated, well-presented and well-concluded judgment titled Imran Jalal @ Bilal Ahmed @ Kota @ Saleem @ Hadi Vs State of Karnataka in Criminal Appeal No. 636 of 2021 (Arising out of SLP (Crl.) No. 5183 of 2021 arising out of Diary No. 21455 of 2020) delivered just recently on July 19, 2021, the Apex Court has minced just no words to make it absolutely clear that direction to undergo other sentences after life sentence illegal. The Supreme Court Bench comprising of Justice Uday Umesh Lalit and Justice Ajay Rastogi observed that a court cannot stipulate that other sentences would begin after expiration of life sentence awarded to convict. Very rightly so!
In this case, the Trial Court had convicted the accused Imran Jalal under Sections 121 (waging or attempting to wage war, or abetting waging of war, against the Government of India), 121A (Conspiracy to commit offences punishable by Section 121), 122 (Collecting arms, etc with intention of waging war) of the Indian Penal Code, Section 5(b) of Explosive Substances Act, Sections 20, 23(1) of Unlawful Activities (Prevention) Act, 1967, and Sections 25(1A), 26(2) of Arms Act. The Trial Court had directed that the sentence of imprisonment for the offence punishable under Section 5(b) of Explosive Substances Act, 1908, which is the rigorous imprisonment for 10 (ten) years, shall commence at the expiration of other sentences of imprisonments (life imprisonment) for IPC offences and other sentences under other provisions). The High Court of Karnataka had upheld the conviction and sentence awarded to the accused.
To be sure, before the Apex Court the accused-appellant contended that this direction [that the sentence of imprisonment for 10 years would commence at the expiration of other sentences of imprisonment] runs counter to the decision of the Constitution Bench in Muthuramalingam v State. While agreeing with the appellant’s contention, the Bench then accordingly modified the sentence part of the Trial Court’s order. Very rightly so!
To start with, after granting leave in para 1, the Bench of Apex Court comprising of Justice Uday Umesh Lalit and Justice Ajay Rastogi then puts forth in para 2 that, “This appeal challenges the judgment and order dated 29.11.2019 passed by the High Court of Karnataka at Bengaluru in Criminal Appeal No.2066 of 2016.”
To put things in perspective, the Bench then envisages in para 3 that, “The aforesaid appeal had challenged the conviction and sentence imposed upon the appellant by the Court of 55th Additional City Civil & Sessions Judge (CCH-56), Bangalore City, in Sessions Case No.1031 of 2008. The order of sentence passed by the Trial Court was as under:
“1) The accused No.1 is sentenced to undergo imprisonment for life and shall pay the fine of Rs.50,000/- (Rupees fifty thousand only) for the commission of offence punishable under section 121 of IPC and in default of payment of fine amount he shall further undergo the imprisonment for 2 (two) years.
2) The accused No.1 is sentenced to undergo simple imprisonment for 10 (ten) years and shall pay the fine of Rs.25,000/- (Rupees twenty-five thousand only) for the commission of offence punishable under section 121-A of IPC and in default of payment of fine amount he shall further undergo simple imprisonment for 1 (one) year.
3) The accused No.1 is sentenced to undergo simple imprisonment for 10 (ten) years and shall pay the fine of Rs.25,000/- (Rupees twenty-five thousand only) for the commission of offence punishable under Section 122 of IPC and in default of payment of fine amount he shall further undergo simple imprisonment for 1 (one) year.
4) The accused No.1 is sentenced to undergo rigorous imprisonment for 10 (ten) years and shall pay the fine of Rs.25,000/- (Rupees twenty-five thousand only) for the commission of offence punishable under Section 5(b) of Explosive Substances Act, 1908 and in default of payment of fine amount he shall further undergo simple imprisonment for 1 (one) year.
5) The accused No.1 is sentenced to undergo simple imprisonment for 10 (ten) years and shall pay the fine of Rs.25,000/- (Rupees twenty-five thousand only) for the commission of offence punishable under Section 25(1A) of Arms Act, 1959 and in default of payment of fine amount he shall further undergo simple imprisonment for 1 (one) year.
6) The accused No.1 is sentenced to undergo simple imprisonment for 10 (ten) years and shall pay the fine of Rs.25,000/- (Rupees twenty-five thousand only) for the commission of offence punishable under Section 26(2) of Arms Act, 1959 and in default of payment of fine amount he shall further undergo simple imprisonment for 1 (one) year.
7) The accused No.1 is sentenced to undergo imprisonment for life and shall pay the fine of Rs.50,000/- (Rupees fifty-thousand only) for the commission of offence punishable under Section 20 of Unlawful Activities (Prevention) Act, 1967 and in default of payment of fine amount he shall further undergo the simple imprisonment for 2 (two) years.
8) The accused No.1 is sentenced to undergo imprisonment for life and shall pay the fine of Rs.50,000/- (Rupees fifty thousand only) for the commission of offence punishable under Section 23(1) of Unlawful Activities (Prevention) Act, 1967 and in default of payment of fine amount he shall further undergo the simple imprisonment for 2 (two) years.
9) Except the sentence of imprisonment for the offence punishable under section 5(b) of Explosive Substances Act, 1908, which is the rigorous imprisonment for 10(ten) years, the other sentences of imprisonments, which are simple in nature, shall run concurrently. The sentence of imprisonment for the offence punishable under section 5(b) of Explosive Substances Act, 1908, which is the rigorous imprisonment for 10(ten) years, shall commence at the expiration of other sentences of imprisonments.
10) The accused No.1 is entitled for set-off, under section 428 of Cr.P.C., of the period of detention undergone during the period of trial of this case.””
As it turned out, the Bench then states in para 4 that, “The order of conviction and sentence passed by the Trial Court having been affirmed by the High Court, the present appeal has been preferred. The notice in the matter was confined to the nature and quantum of sentence imposed upon the appellant.”
On the one hand, the Bench points out in para 6
that, “The only submission advanced by Mr. Siddhartha Dave, learned Senior Advocate, on nature and quantum of sentence is that the last part of paragraph 9 of the order of sentence which observed that the sentence of imprisonment for 10 years awarded in terms of paragraph 4 of the order of sentence would commence at the expiration of other Vsentences of imprisonment is incorrect.
Taking exception to this direction, Mr. Dave submits that this direction runs counter to the decision of the Constitution Bench of this Court in Muthuramalingam v. State (2016) 8 SCC 313. Paragraphs 18 and 35 of the decision were to the following effect:
“18. The legal position is, thus, fairly well settled that
imprisonment for life is a sentence for the remainder of the life of Vthe offender unless of course the remaining sentence is commuted or remitted by the competent authority. That being so, the provisions of Section 31 under CrPC must be so interpreted as to be consistent with the basic tenet that a life sentence requires the prisoner to spend the rest of his life in prison. Any direction that requires the offender to undergo imprisonment for life twice over would be anomalous and irrational for it will disregard the fact that humans like all other living beings have but one life to live. So understood Section 31(1) would permit consecutive running of sentences only if such sentences do not happen to be life sentences. That is, in our opinion, the only way one can avoid an obvious impossibility of a prisoner serving two consecutive life sentences. … … …
35. We may, while parting, deal with yet another dimension of this case argued before us, namely, whether the court can direct life sentence and term sentences to run consecutively. That aspect was argued keeping in view the fact that the appellants have been sentenced to imprisonment for different terms apart from being awarded imprisonment for life. The trial court’s direction affirmed by the High Court is that the said term sentences shall run consecutively. It was contended on behalf of the appellants that even this part of the direction is not legally sound, for once the prisoner is sentenced to undergo imprisonment for life, the term sentence awarded to him must run concurrently. We do not, however, think so. The power of the court to direct the order in which sentences will run is unquestionable in view of the language employed in Section 31 CrPC. The court can, therefore, legitimately direct that the prisoner shall first undergo the term sentence before the commencement of his life sentence. Such a direction shall be perfectly legitimate and in tune with Section 31 CrPC. The converse however may not be true for if the court directs the life sentence to start first it would necessarily imply that the term sentence would run concurrently. That is because once the prisoner spends his life in jail, there is no question of his undergoing any further sentence. Whether or not the direction of the court below calls for any modification or alteration is a matter with which we are not concerned. The regular Bench hearing the appeals would be free to deal with that aspect of the matter having regard to what we have said in the foregoing paragraphs.” (Emphasis supplied).”
As against this, the Bench then states in para 7 that, “On the other hand, Mr. Shubhranshu Padhi, learned Advocate for the State has relied upon paragraph 25 of the decision, which is to the following effect:
“25. In O.M. Cherian case [O.M. Cherian v. State of Kerala, (2015) 2 SCC 501 : (2015) 2 SCC (Cri) 123] the prisoner was convicted and sentenced to imprisonment for the offences punishable under Sections 498-A and 306 IPC. The courts below had in that case awarded to the convicts imprisonment for two years under Section 498-A IPC and seven years under Section 306 IPC and directed the same to run consecutively. Aggrieved by the said direction, the prisoners appealed to this Court to contend that the sentences awarded to them ought to run concurrently and not consecutively. The appeal was referred [O.M. Cherian v. State of Kerala, (2015) 2 SCC 501, 506-507 (para 5)] to a larger Bench of three Judges of this Court in the light of the decision in Mohd. Akhtar Hussain v. Collector of Customs [Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183 : 1988 SCC (Cri) 921]. Before the larger Bench, the prisoners relied upon Mohd. Akhtar Hussain case [Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183 : 1988 SCC (Cri) 921] and Manoj v. State of Haryana [Manoj v. State of Haryana, (2014) 2 SCC 153 : (2014) 1 SCC (Cri) 763] to contend that since the prisoners were found guilty of more than two offences committed in the course of one incident, such sentences ought to run concurrently. This Court upon a review of the case law on the subject held that Section 31 CrPC vested the court with the power to order in its discretion that the sentences awarded shall run concurrently in case of conviction of two or more offences.
Please read concluding on thedailyguardian.com
declared that it was difficult to lay down a straightjacket rule for
the exercise of such discretion by the courts. Whether a sentence
should run concurrently or consecutively would depend upon the nature
of the offence and the facts and circumstances of the case. All that
could be said was that the discretion has to be exercised along
judicial lines and not mechanically. Having said that, the Court
observed that if two life sentences are imposed on a convict the court
has to direct the same to run concurrently. That is because sentence
of imprisonment for life means imprisonment till the normal life of a
Be it noted, the Bench then enunciates
in para 8 that, “In the instant case, the appellant was awarded life
sentence on three counts and sentence of 10 years each on five counts,
out of which it was only the sentence in respect of the offence
punishable under Section 5(b) of the Explosive Substances Act, 1908,
which was subject matter of the last part of the directions in
paragraph 9 of the order of sentence.”
Most significantly, the Bench then makes no bones to
make it known in para 9 that, “Paragraph 9 of the order of sentence
contemplated commencement of the sentence awarded under paragraph 4 of
the order of sentence, after the expiration of other sentences of
imprisonment. It would, therefore, mean that the sentence in paragraph
4 would begin after the expiration of other sentences including
sentence for life awarded under three counts. This stipulation would
be against the law laid down by this Court in Muthuramalingam v State
(2016) 8 SCC 313, especially paragraph 35 of the decision as quoted
Finally and far most significantly, the Bench then holds
in para 10 that, “Considering the fact situation, in our view, the
following sentence appearing in paragraph 9 of the order of sentence:
“The sentence of imprisonment for the offence punishable under section
5(b) of Explosive Substances Act, 1908, which is the rigorous
imprisonment for 10 (ten) years, shall commence at the expiration of
the other sentences of imprisonments.”
must stand deleted. Ordered accordingly.”
At the risk of repetition, it has to be said again
that all the courts starting right from the Trial Courts to the Apex
Court must always while ruling in similar such cases always remember
the sum and substance of this notable ruling that direction to undergo
other sentences after life sentence is illegal. Without mincing any
words, the Bench of Apex Court comprising of Justice Uday Umesh Lalit
and Justice Ajay Rastogi have very clearly, cogently, commendably and
convincingly held in this latest, learned, laudable and landmark
judgment that a court cannot stipulate that other sentences would
begin after expiration of life sentence awarded to convict. This must
be always adhered to in letter and spirit. The lower courts especially
err many times on this but from now onwards they must always adhere to
what has been laid down so unambiguously by the two Judge Bench of the
Apex Court in this noteworthy case!
Sanjeev Sirohi, Advocate,
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