Will legalizing betting help Cricket and Tax Revenue?

By
Dr. Ashok Dhamija
-
The cricket spot fixing scam in the Indian Premier League (IPL) has caught the attention of all and sundry in India. In a country where cricket is considered a religion, a “secular” religion wherein people from all communities have faith, the spot fixing scam has naturally overshadowed every other issue in the country, at least, for the time being. Many experts have advocated legalization of betting in cricket to solve the problem of spot fixing in cricket. Experts argue that if betting on horses is legal, then why not in cricket? It is also argued that if betting in cricket is legalized, the Government will benefit by huge tax revenue. For example, the noted journalist S.A. Aiyar writes in Swaminomicsthat if betting is legalized in cricket and elections, it will generate an estimated tax revenue of Rs. 40,000 crore every year presuming that the tax rate is 20%, and that, moreover, over and above this, there will be also be huge additional income tax paid by the bookmakers, all workers in the gambling industry, and by winners.
We have the tendency of making new laws under mob pressure. Many of such laws are half-baked laws aimed at easing the public pressure generated after some incident. Ultimately, some of such laws do more harm than good. Laws should be seriously debated and deliberated upon before their enactment, instead of enacting them hastily as a short-term quick-fix medicine to calm down the public sentiment or to divert the public attention from the real issues.
Legalization of betting in cricket should also be debated and deliberated upon seriously before jumping to any conclusions. All aspects need to be considered. Here are a few.
Some experts are confused about the real issues in the current spot fixing scam in cricket. There are mainly two aspects of this scam. The first one is betting and the second one is spot fixing (or match-fixing). These two aspects can exist independently of each other, though in many instances they co-exist and may also have the relationship of cause & effect. The problem of spot fixing is much more serious than betting and it needs to be attended to with a wider perspective. The Government has already indicated that it is considering enacting a law to penalize dishonest practices in sports. Merely legalizing betting in cricket will not solve the problem of spot fixing.
One should also be aware of the ill-effects of legalizing betting (or should I say, gambling?) in cricket. It is different from horse-race. It may be noted, firstly, that betting on horse-race is legal only subject to various limitations, and secondly, that it is confined only to certain limited sections of people. For example, in Mumbai (and, in other parts of Maharashtra), betting on horse-race will is permissible under the provisions of the Bombay Prevention of Gambling Act, 1887, subject to following conditions:
(a)    if it takes place on the day on which horse race is to run; and
(b)   if it takes place only within a permitted enclosure or place; and
(c)    if it takes place between an individual (present in person) on the one hand and the licensee (or his permitted sub-licensees); or between any number of individuals present in person in such manner and by such contrivance as may be permitted by licence.
It may be noted that the above-mentioned licences are governed strictly under the provisions of the Bombay Race-Courses Licensing Act, 1912. Thus, it is obvious that betting on horse-race is permitted only in these exceptional cases. It is not permitted at other than the licensed places and it is also not permitted between unauthorized persons. Now, how many race-courses do we have? Thus, betting on horse-race is confined to a few selected places only and it is not available to common man. In fact, most people in our country would not even have heard anything called race-course and betting on horse-race.
On the other hand, if you allow betting in cricket, it is likely to become widespread keeping in view its popularity and availability). If you’re going to control such legalized betting only to some selected places and/or persons, the problem of illegal betting will still continue which defies the very logic of legalizing betting in cricket. On the other hand, if you allow betting in cricket in a general manner (though under terms of licence), say through Internet, such betting will become quite widespread which is likely to create its own problems.
Human beings (and, especially, we the Indians, the believers in “luck”, “kismet” or “taqdir”) have tendencies to attempt the short-term methods of “luck” or “gamble” to become rich instead of following the long-term methods of hard-work. That’s why every now and then we notice a Ponzy scheme fraud coming to light in India, where people easily believe that money can be trebled in 3 months and thereby invest their money in such fraudulent schemes, only to lose the principal amount itself instead of getting a 200% or 300% return thereon. For example, in a recent case that I handled in the Supreme Court, I found that a company collected about Rs. 500 crores from more than 52000 persons in a short time through a Ponzi scheme promising that it would return 3 times the principal amount in 3 months. Ultimately, the said company defrauded them and was not able to return even the principal amount. The fact remains that such a large number of people could believe such tall claims and it clearly shows our tendency to try to become rich overnight, even if we have to put our hard-earned money at risk and ultimately lose even such scarce money.
For a rich person like a Vindoo Dara Singh or an M. Gurunath, betting may be a fun and perhaps also a source of a lot of ill-gotten money (courtesy, spot fixing or inside information). But, for a poor person, it will be another way of becoming poorer. We must understand that betting is a zero-sum game. One person’s gain is another person’s loss. The actual amount distributed by bookies to winning persons is always much less than the total amount collected from betting. In fact, even in a so-called skilled profession like share market, it is believed that 95% people indulging in speculative trading (which is more of gambling than skill) lose and it is only 5% people (mainly the big players) who gain.
Moreover, it is poor people (with limited resources) who lose more in gambling. It can ruin poor families who may already be finding it difficult to earn their livelihood and may be defaulting on repayments of loans with exorbitant interest rates. In fact, these are the kind of people who may want to try their luck in gambling without fully understanding its dynamics and consequences. There are cases when a poor person earning Rs. 100 a day might already be spending Rs. 30 on liquor, instead of spending on his family; now, he might have to spend another Rs. 30 on betting also. Likewise, the middle class people, who want to become rich overnight to buy luxurious goods, are also likely to indulge more in legalized betting and ruin their lives.
This is so because gambling becomes a habit very fast. You may win today, but you cannot carry that money home since you will bet with more stakes and will ultimately lose more. In epic Mahabharata, even Yudhisthira, who was known as “Dharamraj” or the “king of dharma” or the “righteous king”, succumbed to the temptation of gambling in a game of dice and lost all his kingdom and also put at stake the modesty of Draupadi who was married to him and his four brothers. He was forced into exile for 13 years, which included one year in anonymity. This happened to a King who was called the “king of dharma”. Can we expect poor people to control their temptations of gambling?
We must realize that what is good for a rich M. Gurunath or a Vindoo Dara Singh, may not be good for a poor Ramu or a poor Iqbal living in a slum in a city or in a small village. This aspect needs to be considered seriously before legalizing betting on cricket.
Should we encourage gambling? Just because many rich people indulge in gambling in an illegal manner, should we make it legal so that they can remove their feeling of guilt and openly indulge in gambling? Will it not encourage more gambling? What type of system we want? One based on rewards on the basis of one’s hard work and talent, or one based on rewards of gambling? I am not passing any value judgment. What I am merely saying is that these are some of the questions that need to be first considered from all angles.
Let me now discuss the so-called benefit of tax revenue that is likely to result due to legalized betting. Running a restaurant is legal? Isn’t it? Opening a retail store is legal. Isn’t it? So are many other legal business activities. How much tax we get from such legal activities? Is it not correct to say that in many businesses, the tax avoidance is up to 80% or 90%? No invoices. No excise duty. No sales tax (or VAT). No income tax. Add to this, the corruption of the tax officers. For every 1 activity of a tax-paid business, there may be sometimes 10 business activities of the same kind for which no taxes are paid. Mind you, all these are permitted and legal business activities.
So, what is the guarantee that once you legalize betting, all betting will become legal and taxes will be paid on all such betting? Will there be no illegal or unreported or unlicensed betting to avoid the taxes?
Let me give an example. Betting on horse-race is allowed in Mumbai subject to the conditions mentioned above. There are taxes to be paid on such legal betting. Do you know what actually happens in practice? For every one transaction of legal betting on horse-race, there may perhaps be one hundred transactions of illegal betting on horse-race in Mumbai. Why? To avoid tax. To avoid complicated process of licensing, compliances, and reporting under such licence. Due to corruption of the licensing and controlling authorities. And, the like.
Moreover, there is another angle to the so-called legalized horse-race betting. Even if someone bets through such legalized betting, it has been seen that the amount of bet is generally grossly under-reported for many transactions. For example, if someone bets Rs. 100, it will be shown as a Re. 1 bet. It will be understood that every bet recorded in records shall be multiplied by 100 at the time of initial bet and at the time of distribution of reward. Thus, while on record, such a bet is legal, it is grossly undervalued.
Therefore, while most of the betting transactions in horse-race will be through illegal route and not through the licensed legal route, even where some transactions are routed through the licensed betting channel there is gross undervaluation of the betting amount. There are organised crime syndicates everywhere. There is the involvement of the controlling authorities and other law-enforcement authorities. So, the actual tax revenue collected is much less than what should actually be due. Though I am not aware of the actual tax revenue collected through horse-races, my practical experience as a former police officer tells me that it should be only a miniscule percent of the real potential.
Thus, legalizing betting in horse-race has not stopped illegal betting and it has not produced tax revenues. What is the guarantee that legalizing betting in cricket will stop illegal betting (and prevent spot fixing in cricket) and yield significant tax revenue? At the most, we’ll have two parallel systems, that of legal betting and illegal betting, with the latter being many times more than the former. Of course, we’ll have a big tribe of legal gamblers in our populace.
Trading (or speculating) in Futures and Options in the stock market is also a sort of legalized betting to some extent, where one places his stakes believing that the market (or a particular scrip) will behave in a particular manner in the coming days or months, though of course, it also involves skill to some extent. The securities transaction tax is imposed on such transactions, though it is less than 1%. Yet, how much is the tax collected when such transactions are fully transparent and when the volumes are very heavy – running into tens of thousands of crores every day? It is insignificant.
Consider sales tax (or VAT or CST). Even if such tax is 1% or 2%, people do not report all transactions and there is a massive under-reporting of invoices to avoid taxes. Do you think people will report their betting transactions if a tax rate of 20% on legal betting on cricket is applied as S.A. Aiyar has suggested (here)? Will there not be a parallel system of illegal betting even after betting in cricket is legalized?
In fact, in some states, even state-sponsored lottery is not permitted. Reason? It has devastating effect on millions of people who can easily get used to it, which is nothing but gambling. Government can earn revenue. But, isn’t it a “welfare” state? Should the Government earn its revenue from methods that can ruin families and/or that can encourage gambling? Isn’t there a similar reason behind the Governments permitting sale of liquor only through a few licensed shops than to permit its free sale through the Kirana shops?
Should all these issues not be considered in detail from all possible angles?
Coming back to the original issue, the question remains intact as to whether the problem of spot fixing in cricket can be cured by legalizing betting? As mentioned above, illegal betting may still thrive even after betting in cricket is legalized. Dawood Ibrahim and his company will not apply to the Government for grant of a licence for being a bookie to run betting in cricket. So, will legalized betting will solve the problem of spot fixing? Will it drastically or significantly enhance tax revenues of the Government? Will it not encourage the culture of gambling in the masses? Will it not ruin many families?
As I mentioned earlier, I am not passing any value judgment. All I say is that these issues need to be considered seriously before the Government takes any decision to legalize betting in cricket. It should not happen that the cure causes more damage than the disease itself.
Aiyar has also suggested (here) that betting be legalized in elections also. I think I only need to quote from another eminent journalist M.J. Akbar, with whom I cannot agree more; he writes in The Sunday Guardian:
“Indian bookies thrive over two seasons, cricket and elections. One can only hope that bookies will never be strong enough, even with Dawood Ibrahim’s help, to do unto our elections what they have done unto our cricket. The thought that fixing election results could begin from the fringe, in isolated Assembly constituencies, is too intriguing to be entirely dismissed. Shift, for instance, 15 seats from Narendra Modi’s tally in Gujarat to Congress, and Indian politics becomes a different drama.”
I don’t think we can allow gamblers to manipulate our democracy by legalizing betting in elections. We should not and cannot permit any betting in elections.

Government not alone in being responsible for CBI not being independent

By
Dr. Ashok Dhamija
-
All three wings of the State (including Parliament and Supreme Court), and all political parties (including Congress and BJP) should share some blame for CBI not being independent
In its order dated May 8, 2013 (here), in the coal scam related PILs, a 3-Judge Bench of the Supreme Court consisting of Justice R.M. Lodha, Justice Madan B. Lokur and Justice Kurian Joseph, stressed the need to make CBI independent of extraneous influences. The Court referred to its decision in the case of Vineet Narain v. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889 (here), wherein it had emphasised the need for insulation of CBI from any extraneous influences to enable it to discharge its duties in the manner required for proper implementation of the rule of law. Certain directions had been issued in the said Vineet Narain case, inter alia, directing that the Central Government shall take all measures necessary to ensure that the CBI functions effectively and efficiently and is viewed as a non-partisan agency. In that case, the Supreme Court had also noted that though the Minister who has been given responsibility for the functioning of the CBI has general power to review its working and give broad policy directions and he has also power to call for information regarding progress of the cases being handled by the agency, but none of these powers would extend to permit the concerned Minister to interfere with the course of investigation and prosecution in any individual case.
In spite of these directions given in the said Vineet Narain case, when the Supreme Court noticed that the status report of the CBI in the coal scam had been shared with a Minister and certain officers of the Central Government, it sarcastically called the CBI a “caged parrot” and expressed its desire to free the CBI from extraneous influences to make it functionally independent in the matters of investigation. In its above-mentioned order dated May 8, 2013, the Supreme Court wanted to know whether the Central Government intended to put in place appropriate law for the independence of the CBI and its functional autonomy and insulate it from extraneous influence(s) of any kind so that CBI is viewed as a non-partisan investigating agency. The Court further noted that this query was put to the Attorney General as it thought that if the statutory framework was in place, there would not be any necessity for it (i.e., the Supreme Court) to undertake exercise in this regard.
No doubt, the Supreme Court order is well-intended. However, it is not that it is the Government alone which is fully responsible if the CBI is not functionally independent today even after the aforesaid Vineet Narain case. The Parliament has also been equally responsible by inserting Section 6A in the Delhi Special Police Establishment Act, 1946, (DSPE Act) after the said Vineet Narain case. In fact, this section was added in the above Act during the year 2003 when the NDA Government headed by BJP was in rule at Centre. It is pertinent to mention that the aforesaid DSPE Act governs the CBI and this newly added Section 6A took away functional autonomy of CBI greatly after the Supreme Court had restored it in Vineet Narain case in the year 1997. As per this section, the CBI was required to obtain prior approval from the Central Government for initiating any enquiry or investigation against senior Government functionaries (more details are in the later part of the article)
Moreover, with great respect, I may point out that the Supreme Court should also share a part of the blame for continuation of Section 6A in the aforesaid DSPE Act. How? It has not decided the case challenging the constitutional validity of Section 6A for last about 10 years! This case is pending for decision before the Supreme Court, now for about 10 years and is yet to be heard and decided.
Let me now throw some light on the details, since there is complete silence everywhere (including the media) about this important aspect that greatly impacts the functional autonomy of CBI and for which all three wings of the State, namely, the Executive, the Legislature and the Judiciary, should share the blame equally. And, moreover, for this, all political parties in India should share the blame, since the said 6A was inserted in the DSPE Act by the NDA Government, and it is being continued and used by the present UPA Government, and since all political parties of some importance in India have been part (or, outside supporter) of either the NDA Government or the UPA Government, or both, during these years at one or the other time (perhaps, the only exception that comes to my mind is AIADMK headed Ms. J. Jayalalitha). Thus, no political party or institution can claim high moral ground on this issue.
Now, the details. A “Single Directive” was issued by the Government of India which required prior sanction of the designated authority to initiate the investigation against officers of the Government and the Public Sector Undertakings (PSUs), nationalised banks above a certain level. The Single Directive was a consolidated set of instructions issued to the CBI by the various Ministers/Departments in this behalf. It was first issued in 1969 and thereafter amended on many occasions. The Single Directive contained certain instructions to the CBI regarding modalities of initiating an inquiry or registering a case against certain categories of civil servants. In the aforesaid Vineet Narain case, the Supreme Court quashed this Single Directive. Before this Vineet Narain case, this Directive No. 4.7(3) in its final form was as under:
“4.7(3)(i). In regard to any person who is or has been a decision making level officer (Joint Secretary or equivalent or above in the Central Government or such officers as are or have been on deputation to a Public Sector Undertaking; officers of the Reserve Bank of India of the level equivalent to Joint Secretary or above in the Central Government, Executive Directors and above of the SEBI and Chairman & Managing Director and Executive Directors and such of the Bank officers who are one level below the Board of Nationalised Banks), there should be prior sanction of the Secretary of the Ministry/Department concerned before SPE takes up an enquiry (PE or RC), including ordering search in respect of them. Without such sanction, no enquiry shall be initiated by the SPE.
(ii) All cases referred to the administrative Ministries/Departments by CBI for obtaining necessary prior sanction as aforesaid, except those pertaining to any officer of the rank of Secretary or Principal Secretary, should be disposed of by them preferably within a period of two months of the receipt of such a reference. In respect of the officers of the rank of Secretary or Principal Secretary to Government, such references should be made by Director, CBI to the Cabinet Secretary for consideration of a Committee consisting of the Cabinet Secretary as its Chairman and the Law Secretary and the Secretary (Personnel) as its members. The Committee should dispose of all such references preferably within two months from the date of receipt of such a reference by the Cabinet Secretary.
(iii) When there is any difference of opinion between the Director, CBI and the Secretary of the Administrative Ministry/Department in respect of an officer up to the rank of Additional Secretary or equivalent, the matter shall be referred by CBI to Secretary (Personnel) for placement before the Committee referred to in Clause (ii) above. Such a matter should be considered and disposed of by the Committee preferably within two months from the date of receipt of such a reference by Secretary (Personnel).
(iv) In regard to any person who is or has been Cabinet Secretary, before SPE takes any step of the kind mentioned in (i) above the case should be submitted to the Prime Minister for orders.”
Thus, the said Single Directive required that the CBI could not take up any enquiry or investigate or register a case or conduct a search or effect an arrest in respect of the aforesaid decision-making level officers without the previous consent or permission of the aforesaid authorities. As mentioned above, the question of validity of this Single Directive came up before the Supreme Court in aforesaid Vineet Narain case (here), wherein the Supreme Court struck down this Single Directive as being invalid and illegal.
In this connection, the Supreme Court had held that there can be no doubt that the overall administration of the Delhi Special Police Establishment i.e., CBI vests in the Central Government, which also includes, by virtue of Section 3 of the DSPE Act, the power to specify the offences or class of offences which are to be investigated by it. The general superintendence over the functioning of the Department and specification of the offences which are to be investigated by the agency is not the same as and would not include within it the control of the initiation and the actual process of investigation, i.e., direction. Once the CBI is empowered to investigate an offence generally by its specification under Section 3 of the said DSPE Act, the process of investigation, including its initiation, is to be governed by the statutory provisions which provide for the initiation and manner of investigation of the offence. This is not an area which can be included within the meaning of “superintendence” in Section 4(1) of the DSPE Act. The word “superintendence” in Section 4(1) cannot be construed in a wider sense to permit supervision of the actual investigation of an offence by the CBI contrary to the manner provided by the statutory provisions. It cannot be accepted that the Government of India can issue any directive to the CBI to curtail or inhibit its jurisdiction to investigate an offence specified in the notification issued under Section 3 by a directive under Section 4(1) of the Act. The jurisdiction of the CBI to investigate an offence is to be determined with reference to the notification issued under Section 3 of the DSPE Act and not by any separate order not having that character. Once the jurisdiction is conferred on the CBI to investigate an offence by virtue of notification under Section 3 of the said Act, the powers of investigation are governed by the statutory provisions and they cannot be estopped or curtailed by any executive instruction issued under Section 4(1) thereof. This result follows from the fact that conferment of jurisdiction is under Section 3 of the Act and exercise of powers of investigation is by virtue of the statutory provisions governing investigation of offences. It is settled that statutory jurisdiction cannot be subject to executive control.
It was further held in the said Vineet Narain case (here) that there is no similarity between a mere executive order requiring prior permission or sanction for investigation of the offence and the sanction needed under the statute for prosecution. The requirement of sanction for prosecution being provided in the very statute which enacts the offence, the sanction for prosecution is a pre-requisite for the Court to take cognizance of the offence. In the absence of any statutory requirement of prior permission or sanction for investigation, it cannot be imposed as a condition precedent for initiation of the investigation once jurisdiction is conferred on the CBI to investigate the offence by virtue of the notification under Section 3 of the DSPE Act. The word “superintendence” in Section 4(1) of the DSPE Act in the context must be construed in a manner consistent with the other provisions of the Act and the general statutory powers of investigation which govern investigation even by the CBI. The necessity of previous sanction for prosecution is provided in Section 6 of the Prevention of Corruption Act, 1947 ( or under Section 19 of the new Prevention of Corruption Act, 1988) without which no Court can take cognizance of an offence punishable under Section 5 of that Act. There is no such previous sanction for investigation provided for either in the Prevention of Corruption Act or the Delhi Special Police Establishment Act or in any other statutory provision. The above is the only manner in which Section 4(1) of the DSPE Act can be harmonised with Section 3 and the other statutory provisions.
The Supreme further held (here) that the Single Directive No. 4.7(3) stipulating the modalities of initiating investigation against certain Civil Servants who are decision making officers, issued by the Government, has to be examined in this background. The law does not classify offenders differently for treatment thereunder, including investigation of offences and prosecution for offences, according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The Single Directive is applicable only to certain persons above the specified level who are described as “decision making officers”. Where the accusation of corruption is based on direct evidence and it does not require any inference to be drawn dependent on the decision making process, there is no rational basis to classify them differently. In other words, if the accusation be of bribery which is supported by direct evidence of acceptance of illegal gratification by them, including trap cases, it is obvious that no other factor is relevant and the level or status of the offender is irrelevant. Cases of bribery, including trap cases, are outside the scope of the Single Directive. Similar is the case of possession of disproportionate assets. There may be other cases where the accusation cannot be supported by direct evidence and is a matter of inference of corrupt motive for the decision, with nothing to prove directly any illegal gain to the decision maker. Those are cases in which the inference drawn is that the decision must have been made for a corrupt motive because the decision could not have been reached otherwise by an officer at the level in the hierarchy. This is, therefore, an area where the opinion of persons with requisite expertise in decision making of that kind is relevant and, may be even decisive in reaching the conclusion whether the allegation requires any investigation to be made. In view of the fact that the CBI or the Police force does not have the expertise within its fold for the formation of the requisite opinion in such cases, the need for the inclusion of such a mechanism comprising of experts in the field as a part of the infrastructure of the CBI is obvious, to decide whether the accusation made discloses grounds for a reasonable suspicion of the commission of an offence and it requires investigation. In the absence of any such mechanism within the infrastructure of the CBI, comprising of experts in the field who can evaluate the material for the decision to be made, introduction therein of a body of experts having expertise of the kind of business which requires the decision to be made, can be appreciated. But then, the final opinion is to be of the CBI with the aid of that advice and not that of anyone else. The Supreme Court observed that the Single Directive cannot, therefore, be upheld as valid on the ground of it being permissible in exercise of the power of superintendence of the Central Government under Section 4(1) of the DSPE Act. Accordingly, the Single Directive was struck down by the Supreme Court in the said Vineet Narain case (here).
However, within a few months after the aforesaid decision of the Supreme Court in the case of Vineet Narain, by the Central Vigilance Commission Ordinance, 1998, dated 25th August, 1998, Section 6-A was sought to be inserted in the DSPE Act, 1946, providing for the previous approval of the Central Vigilance Commission before investigation of the officers of the level of Joint Secretary and above. But, on the intervention of the Supreme Court, this provision was deleted by issuance of another Ordinance promulgated on 27th October, 1998. Thus, from the date of the decision in the case of Vineet Narain (i.e., 18th December, 1997) and till 12th September, 2003, there was no requirement of seeking such previous approval, except for a period of about two months from 25th August to 27th October, 1998.
However, as mentioned above, w.e.f. 12th September, 2003, a new Section 6-A was inserted in the Delhi Special Police Establishment Act, 1946. It, inter alia, provides for obtaining the previous approval of the Central Government for conduct of any inquiry or investigation for any offence alleged to have been committed under the Prevention of Corruption Act, 1988, where allegations relate to officers of the level of Joint Secretary and above and in some other cases. This newly-introduced Section 6A is reproduced below:
“6-A. Approval of Central Government to conduct inquiry or investigation.—(1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to—
(a) the employees of the Central Government of the level of Joint Secretary and above; and
(b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.
(2) Notwithstanding anything contained in sub-section (1), no such approval shall be necessary for case involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to Section 7 of the Prevention of Corruption Act, 1988 (49 of 1988).”
Thus, it is clear that this new Section 6-A in the DSPE Act reintroduced the requirement to obtain prior approval of the Central Government for cases against such senior level officers as was the requirement earlier under the Single Directive.
The constitutional validity of the aforesaid newly inserted Section 6-A was challenged before the Supreme Court in a case filed by Dr. Subramanian Swamy. It is noticed from the Supreme Court website that in an order of as early as November 3, 2003 (here), there is a mention of a prayer being made to strike down the aforesaid newly introduced Section 6A of the DSPE Act (that was introduced w.e.f. 12th September, 2003) that severely affects the functional autonomy of CBI. This matter was listed again sometimes thereafter, and then by a decision dated 4th February, 2005, reported vide Subramanian Swamy v. Director, CBI, (2005) 2 SCC 317 : 2005 Cri LJ 1413 (here), a 3-Judge Bench of the Supreme Court referred this matter to be decided by a larger Bench. Now, it is May, 2013. The decision of the larger Bench is still awaited till date. This matter was last listed on January 11, 2011, before a Constitution Bench of 5-Judges (here). A long period of about 10 years has passed since Section 6A was introduced in DSPE Act in the year 2003 and its constitutional validity was challenged in that year. The Supreme Court is yet to hear and decide this matter as to whether this provision is constitutionally valid or not. Unfortunately, this is in spite of the fact that corruption is one of the biggest problems that our country faces and during last 3-4 years, a lot has been said and written about corruption and CBI.
Therefore, the position, as of the date of writing of these words, is that Section 6-A of the DSPE Act, 1946, stands in the law books and is valid, which means that prior approval of the Central Government would be necessary for instituting a case under the Prevention of Corruption Act against officers of the level of Joint Secretary to the Government of India and above and in certain other cases [excepting in a situation covered in sub-section (2) of Section 6-A, which basically refers to a public servant being caught red-handed while taking bribe during a trap]. Therefore, the law itself provides for Government interference in CBI investigations in cases against the senior level functionaries, since the very initiation of the investigation or inquiry is barred without prior approval of the Central Government. It goes without saying that it is the corruption cases against the senior level Government functionaries which matter the most. The CBI is toothless here. Or else, we can say that the CBI will get its teeth in such corruption cases only if the Central Government decides to provide these teeth to it. A “caged parrot” and there being no power to bite!
Now that the Supreme Court itself has again taken up the issue of functional autonomy and independence of the CBI in the matters of investigation, it is earnestly hoped that it will also expeditiously hear the aforesaid matters in which the constitutional validity of Section 6A of the DSPE Act has been challenged. Moreover, since, on the basis of the directions given by the Supreme Court, the Government has also constituted a Group of Ministers to consider enacting legal provisions to grant functional autonomy to CBI, it is hoped that the Government will introduce a Bill that delete the said provision and will make other appropriate changes in the law to make CBI fully independent in conducting investigations. Of course, one also hopes that the Parliament will pass such Bill with due urgency (no stalling of the Parliament please, dear Opposition leaders).
[Note: A substantial part of this article is based on the extracts taken from my book Prevention of Corruption Act, Second Edition (2009), appx. 2250 pages, published by LexisNexis Butterworths Wadhwa Nagpur, New Delhi (ISBN: 978-81-8038-592-6). I am presently revising this book for its 3rd Edition.]

Is Sanjay Dutt entitled to Right of Private Defence?

By
Dr. Ashok Dhamija
-
It is disappointing to note that Mr. Shanti Bhushan, an eminent lawyer and a former Law Minister of India, has written in an article (This plot needs a new ending) in The Hindu newspaper that Sanjay Dutt had possessed the weapons (for the possession of which he was convicted under the Arms Act) for self-defence and that their possession without a licence would not constitute an offence. Noting that Section 96 of the Indian Penal Code provides that “Nothing is an offence which is done in the exercise of the right of private defence”, Mr. Shanti Bhushan further writes that “When the law says nothing done in the exercise of the right of private defence is an offence, it would be a travesty of justice to send Sanjay Dutt to jail”.
Referring to the evidence in the case establishing that well before the Mumbai blasts (12 March 1993), there had been serious riots in Mumbai (December 1992-January 1993), and that Sanjay Dutt’s father, Sunil Dutt, and the whole family was helping to protect innocent Muslims being targeted by the Shiv Sena mobs, Mr. Shanti Bhushan writes that:
“It was evident that there was a clear danger of a mob attack on Sanjay Dutt and his family, including his parents. An attack by such a mob could not have been deterred except by the threat of an automatic weapon and it was for this very reason that Sanjay Dutt had agreed to acquire the automatic weapon, namely, the AK-56 Rifle (in mid-January 1993). It is also clear that no private person is ever granted a licence for acquiring an automatic weapon and therefore the only possible way for Sanjay Dutt to protect his family against a mob attack was to acquire the automatic weapon through alternative channels, so long as the purpose of acquiring this automatic weapon was to defend his family from a mob attack, as both the designated court and the Supreme Court clearly found on the evidence recorded. This act of acquiring the possession of the automatic weapon would not constitute the offence as shown above from the relevant provisions of the IPC.”
Calling Sanjay Dutt “an honourable person”, Mr. Shanti Bhushan opines that the aforesaid important aspect of the matter has been completely overlooked by the Supreme Court and constitutes a clear error of law on the face of the judgment itself (download the judgment, here) by which Sanjay Dutt has been convicted. Mr. Shanti Bhushan advises filing of a review petition before the Supreme Court, and also a curative petition, if needed for doing justice to Sanjay Dutt.
I have quoted detailed extracts from the aforesaid article of Mr. Shanti Bhushan in order to narrate his whole reasoning for arguing that Sanjay Dutt was entitled to the right of private defence and that his conviction under the Arms Act for possession of weapons was wrong.
In this article, my attempt is to show that the reasoning given by Mr. Shanti Bhushan is fallacious and untenable in law in view of the well-established principles of law governing the right of private defence.
At the outset itself, it needs to be mentioned that we live in a modern state with a rule of law. We have a written Constitution and a large number of statutes, governing, inter alia, the rights and obligations of the persons. All persons are expected to follow the laws of the land. It is not that we live in a jungle raj where might is right, and where everybody has to take care of his own defence. In a state with rule of law, it is the primary duty of the state to protect the life and property of the individuals. It is the duty of the state to maintain peace and public order. If an individual expects a threat from another person, he is expected to report to the public authorities who are then expected to provide necessary protection to such individual. However, it is also true that the state may not be in a position to provide protection to each and every individual and for all times. Consequently, a well-defined right of private defence has been given under law to every individual to defend his life and property in accordance with the conditions and limits applicable to such right, when he is exposed to an imminent danger.
One of the most important limitations on the right of private defence is laid down in Section 99 of the Indian Penal Code (IPC). This section specifically lays down that:
“There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.”
This is very important limitation on the right of private defence and has a sound logic behind it. Thus, if a person is apprehending a threat to his life or property, but the threat is not imminent and there is time to approach the public authorities (such as the police) to seek protection, the right to private defence is NOT available in such a situation. The reason behind this curtailment of the right of private defence is very simple. As mentioned above, we have a rule of law. It is the primary duty of the state to protect the individuals. So, if you have time to approach the state authorities for seeking protection in respect of a threat, you don’t have a right of private defence in that case. In such a case, you cannot take law in your own hands. If every person starts taking law into his own hands even though he had sufficient time to approach the public authorities for protection, then what we would have is a jungle raj. But, we have specifically created a state with a rule of law where everyone is expected and required to obey the law and respect the institutions of the state instead of taking law in one’s own hands.
In the case of Laxman Sahu v. State of Orissa, 1986 Supp SCC 555 (at page 556) : AIR 1988 SC 83, the Supreme Court held that:
“the right of private defence is available only to one who is suddenly confronted with immediate necessity of averting an impending danger not of his creation. The necessity must be present, real or apparent”. [Emphasis and underlining supplied by me]
[Also see: Kulwant Singh v. State of Punjab, (2004) 9 SCC 257, at page 268, in this regard.]
In the case of Jai Dev v. State of Punjab, AIR 1963 SC 612 : (1963) 3 SCR 489, the Supreme Court held as under:
“In a well-ordered civilised society it is generally assumed that the State would take care of the persons and properties of individual citizens and that normally it is the function of the State to afford protection to such persons and their properties. This, however, does not mean that a person suddenly called upon to face an assault must run away and thus protect himself. He is entitled to resist the attack and defend himself. The same is the position if he has to meet an attack on his property. In other words, where an individual citizen or his property is faced with a danger and immediate aid from the State machinery is not readily available, the individual citizen is entitled to protect himself and his property. That being so, it is a necessary corollary to the doctrine of private defence that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. The exercise of the right of private defence must never be vindictive or malicious.” [Emphasis and underlining supplied by me]
In the above-mentioned Jai Dev v. State of Punjab case, the Supreme Court further observed as under:
“…To begin with, the person exercising a right of private defence must consider whether the threat to his person or his property is real and immediate. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right. In the exercise of his right, he must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared. So long as the threat lasts and the right of private defence can be legitimately exercised, … … The law of private defence does not require that the person assaulted or facing an apprehension of an assault must run away for safety. It entitles him to defend himself and law gives him the right to secure his victory over his assailant by using the necessary force. This necessarily postulates that as soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence. If the danger is continuing, the right is there; if the danger or the apprehension about it has ceased to exist, there is no longer the right of private defence, (vide Sections 102 and 105 of the Indian Penal Code). …” [Emphasis and underlining supplied by me]
Likewise, in the case of Munney Khan v. State of M.P., (1970) 2 SCC 480 (at page 484) : AIR 1971 SC 1491, the Supreme Court held as under:
“There is also no right of private defence in cases where there is time to have recourse to the protection of public authorities. The right of private defence is essentially a defensive right circumscribed by the statute, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed of as a pretext for a vindictive, aggressive or retributive purpose.” [Emphasis and underlining supplied by me]
In the case of Babulal Bhagwan Khandare v. State of Maharashtra, (2005) 10 SCC 404 (at page 415) : AIR 2005 SC 1460, it was held by the Supreme Court as under:
“In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered.” [Emphasis and underlining supplied by me]
[In this regard, also see: Rizan v. State of Chhattisgarh, (2003) 2 SCC 661 (at page 672) : AIR 2003 SC 976.]
It is thus clear that the right of private defence is not absolute or unfettered. It is subject to the conditions and limitations as imposed under the same provisions of law that make this important right available to every individual. Thus, it is necessary that the threat to an individual must be real, present and immediate making it impossible for him to approach the public authorities for protection. Moreover, as soon as the apprehension of threat ceases to exist, the right of private defence is no more available.
However, it is to be noted that in the case of Sanjay Dutt, the alleged incidents of Mumbai riots took place in December 1992 to January 1993. The prohibited weapons were seized from Sanjay Dutt after the Mumbai blasts (that took place on 12 March 1993). Thus, there was a time gap of about 2 months between these two sets of incidents. Within this sufficiently long period, Sanjay Dutt had ample opportunity to approach the police authorities and other public authorities to seek protection in case he felt threatened. In fact, it is specifically mentioned in the said article of Mr. Shanti Bhushan that Sunil Dutt (father of Sanjay Dutt) had in fact complained to the police about the threat apprehended by them after the Mumbai riots. Thus, there was no right of private defence available to Sanjay Dutt after such a long lapse of time (it may be pointed out that he continued to unlawfully possess the weapons for a long duration after acquiring them illegally).
Let us now try to see how much time gap can render the right of private defence meaningless. In this regard, it is pertinent to point out that in the case of Onkarnath Singh v. State of U.P., (1975) 3 SCC 276 (at page 289) : AIR 1974 SC 1550, a grappling incident had initially taken place between the complainant party and the accused persons. After their disengagement, both the parties proceeded towards their respective houses. The complainant party had already retreated and gone away to a distance of about 365 to 420 ft. in a time period of about 4-5 minutes, when the accused persons returned armed with deadly weapons from their nearby houses and then pursued, overtook, surrounded and made a murderous assault on the complainant party in which incident one person was killed and another was seriously injured. In these circumstances, the Supreme Court held that the aforesaid two incidents were separated by time and distance and that there was no continuity of action. The Supreme Court further held that in such a situation, a right of private defence never accrued to the accused persons.
Thus, it is important to note that even where the time gap of the provocation or threat was only about 4-5 minutes, the Supreme Court held that the accused did not have the right of private defence. Moreover, when the party that posed the threat had already retreated, there was no question of any right of private defence. Of course, the time limit mentioned in this case is only illustrative and there can be no hard and fast rule in this regard, and it ultimately depends on the factual matrix of each case.
In the case of Sanjay Dutt, the so-called provocation had taken place about two months earlier. Moreover, the Mumbai riots had already come to an end. The riotous mobs had retreated long back. There were no riotous mobs when he acquired or possessed or continued to posses the weapons. With such long gap of time and distance, there can be no right of private defence.
It is further pertinent to mention that in the aforesaid case of Onkarnath Singh v. State of U.P., (1975) 3 SCC 276 (at page 289) : AIR 1974 SC 1550, the Supreme Court further held as under:
“A right of private defence given by the Penal Code is essentially one of defence or self-protection and not a right of reprisal or punishment. It is subject to the restrictions indicated in Section 99, which are as important as the right itself. One of them is that the harm inflicted in self-defence must be no more than is legitimately necessary for the purpose of defence. Further, the right is co-terminus with the commencement and existence of a reasonable apprehension of danger to body from an attempt or a threat to commit the offence (see Section 102). It avails only against a danger, real, present and imminent. Such a danger did not exist here. There was no reasonable apprehension of harm, much less of grievous hurt or death — even if at any anterior time there was any — to the appellants from the fleeing complainant party when the latter were attacked by the former. …” [Emphasis and underlining supplied by me]
Thus, the Supreme Court has unequivocally held that even if there was a reasonable apprehension of death or grievous hurt at any anterior time, that would not give rise to the right of private defence. The Supreme Court further held that the right of private defence avails only against a danger, real, present and imminent.
In the case of Sanjay Dutt, the threat that was apprehended about two months earlier had thus become completely immaterial for the purpose of giving him a right of private defence to acquire and possess deadly weapons. He did not face a danger, real, present and imminent when he decided to acquire and possess (and continued to possess) the prohibited automatic weapons. Such automatic weapons could be used to kill a large number of people. No right of private defence accrued to him for acquiring and possessing such deadly weapons. It is also pertinent to mention that these weapons were given to Sanjay Dutt from the same huge consignment of arms and explosives that was used for Mumbai blasts of 12 March 1993 in which 257 innocent persons had died and hundreds of others were injured.
As emphasized earlier, Sanjay Dutt should have sought police protection if he and his family apprehended danger, since he had sufficient time. It is germane to reiterate that he acquired and possessed the said weapons much after the Mumbai riots had discontinued.
In fact, faced with a similar situation, even an ordinary person of ordinary prudence would perhaps have gone out of Mumbai for some days instead of acquiring such deadly weapons in violation of laws of the land. Availability of sufficient time and alternative options is thus of essence when considering the right of private defence.
In this regard, it is unfortunate and ironical when Mr. Shanti Bhushan writes: “It is also clear that no private person is ever granted a licence for acquiring an automatic weapon and therefore the only possible way for Sanjay Dutt to protect his family against a mob attack was to acquire the automatic weapon through alternative channels…”.
Thus, knowing fully well that the laws do not permit acquisition of such automatic weapon, Mr. Shanti Bhushan, unfortunately, appears to be advising that one can go and acquire such automatic weapons from alternative channels (including from terrorists???) if there is apprehension of threat!!! What will happen if everyone starts following the same method of acquiring such automatic weapons? It is noteworthy that a large number of people feel insecure and apprehend danger in one form or another. So, if everyone starts accumulating such deadly weapons in the so-called purported exercise of right of private defence instead of approaching the police authorities, what will happen to our society then? Will it be a jungle raj or goonda raj or the rule of law? It is unfortunate that a former law minister of India should make such observations, which are not supported by any stretch of imagination by the laws of the land.
In any case, if at all there was a doubt about the decisions of the Supreme Court in this regard, the same is repelled by its decision in the case of Mohd. Khalid v. State of W.B., (2002) 7 SCC 334. In this case, on 16 March 03.1993 (ironically, a few days after the aforesaid Mumbai blasts), explosions took place in and around B.B. Ganguly Street in the Bow Bazar area of Calcutta. These explosions resulted in total demolition of a building and partial demolition of two other adjacent buildings. A total of 69 persons died and several others were injured. During rescue operations, one more bomb exploded, and fortunately, 22 live bombs were recovered before they could explode and they were defused subsequently. In this case, one of the defences taken by the accused persons was that of right of private defence. This claim of private defence can best be described by reproducing the relevant extract from the above decision of the Supreme Court (para 7, pages 346-347 of SCC):
“…Even if, according to them, the prosecution case is accepted in toto, it only proves that the Muslims were trying to protect themselves in the event of a possible attack of the Hindus on them. In the bomb blast which took place in Bombay a few months earlier, the police was totally ineffective and could not save the lives of a number of Muslims and were silent onlookers. That spread a message of fear in the minds of the Muslims and as the prosecution version itself goes to show, they were preparing to protect themselves as a matter of exercise of their right of private defence, in the most likely event of attack by the Hindus on them. This according to them rules out application of the TADA Act. They were not the aggressors and their preparations to protect their rights and properties in the event of an attack was not to spread terror or to cause any unlawful act but was an act intended to be used as a shield and not a weapon. …”
However, this plea of right of private defence was rejected by the Supreme Court and it made the following observations in this regard:
“… the preparation of bombs and possession of bombs would tantamount to terrorizing the people. … … it cannot be contended that if the bombs are for self-defence there was no mens rea. Preparation and storage of bombs are per se illegal acts. … … Further question is when the right of private defence arises. It never commences before a reasonable apprehension arises in the mind of the accused. Here there was no evidence that there was any indication about an attack on the Muslims and, therefore, the question of any reasonable apprehension does not arise. The cover of self-protection when pierced unravels a sinister design to unleash terror. … … right is not available if there is sufficient time for recourse to a public authority. … …”.
In a similar way, Sanjay Dutt had also allegedly made preparation by acquiring, possessing / storing automatic weapons to protect in the event of a future attack on him or his family. In view of the reasons mentioned above, there can be no right of private defence in such a situation when there was no imminent, real and present danger of an attack.
What was apprehended by him was merely a speculation or based on surmises that such an attack may perhaps happen in future. However, in several cases, the Supreme Court has held that a plea of right of private defence cannot be based on surmises and speculation. [see, (1) Arjun v. State of Maharashtra, (2012) 5 SCC 530 (at page 535) : “AIR 2012 SC 2181; (2) Babulal Bhagwan Khandare v. State of Maharashtra, (2005) 10 SCC 404 (at page 415); (3) Raj Pal v. State of Haryana, (2006) 9 SCC 678 (at page 682).]
Moreover, in the case of Rajinder v. State of Haryana, (1995) 5 SCC 187 (at page 197), while referring to Section 97 of IPC, the Supreme Court held that:
“On a plain reading of the above section it is patently clear that the right of private defence, be it to defend person or property, is available against an offence. To put it conversely, there is no right of private defence against any act which is not an offence.” [Emphasis and underlining supplied by me]
However, in the case of Sanjay Dutt, no offence had taken place against which he could claim a right of private defence. In fact, it is he who committed an offence under the Arms Act. No offence was committed or attempted to be committed against him at the time when he acquired or possessed lethal weapons.
It is also germane to refer to the following observations of the Supreme Court in the case of State of U.P. v. Ram Swarup, (1974) 4 SCC 764 (at page 772) : AIR 1974 SC 1570:
“The right of private defence is a right of defence, not of retribution. It is available in face of imminent peril to those who act in good faith and in no case can the right be conceded to a person who stage-manages a situation wherein the right can be used as a shield to justify an act of aggression.” [Emphasis and underlining supplied by me]
However, in the case of Sanjay Dutt, he did not act in good faith when he acquired automatic deadly weapons, more so when it was not in the face of an imminent peril. He had several other lawful options, but he chose an unlawful and illegal option by committing an offence under Arms Act.
Likewise, one may also refer to the case of Kashi Ram v. State of Rajasthan, (2008) 3 SCC 55 (at page 69) : AIR 2008 SC 1172, in which the Supreme Court emphasized that the right of self-defence only arises if the apprehension is unexpected and one is taken unawares. [Also see: Mohd. Khan v. State of M.P., (1971) 3 SCC 683 : 1972 Cri LJ 661.]
However, in the case of Sanjay Dutt, he had acquired and possessed the weapons as a “pre-planned preparation” and NOT in the face of an unexpected event in which one is taken unawares. Instead of approaching the public authorities for protection in case he apprehended threat, he took a conscious decision in a pre-planned manner to acquire the automatic weapons to retaliate against any future attack on him or his family, which was highly speculative and based on surmises (in fact, in reality, no such attack actually took place on him or on his family even after the Mumbai blasts).
Right of private defence is for sudden and unexpected danger when one is taken by surprise and when one is required to defend oneself instantaneously. It is not available when one can pre-plan and make preparations. It is nothing but becoming aggressor when you plan for a future event by acquiring weapons. Acquiring and possessing prohibited weapons for a future speculative event is clearly an offence under the Arms Act and not by way of right of private defence.
In the case of Gurbachan Singh v. State of Haryana, (1974) 3 SCC 667 (at page 668) : AIR 1974 SC 496, it was held by the Supreme Court that no right of private defence can exist against an unarmed and unoffending individual.
However, in the case of Sanjay Dutt, there was not even an attack on him, what to speak of whether it was armed or unarmed attack. It was a mere speculation. The plea of self-defence, therefore, is absolutely inapplicable in the facts of the case.
It is not enough to read Section 96 (and 97) of the Indian Penal Code in isolation, as Mr. Shanti Bhushan has apparently done in his above article. One has to read all the relevant sections together in their entirety. It is then that one has to decide when such a right was available to Sanjay Dutt in the factual matrix of the case. It is pertinent to point out that in the aforesaid case of Kashi Ram v. State of Rajasthan, the Supreme Court had held that:
“The right of private defence is codified in Sections 97 to 106 of the Penal Code and all these sections will have to be read together to ascertain whether in the facts and circumstances the appellant-accused are entitled to right of private defence or they exceeded the right of private defence. Only when all these sections are read together, we get comprehensive view of the scope and limitation of that right. The position of law is well settled for over a century both in England and India.”
And, when one reads all the legal provisions together in their entirety, it is unequivocally clear that Sanjay Dutt did not have any right of private defence in the facts of the case. He has committed an offence under the Arms Act and he has been rightly convicted therefor.
Due to time constraints, I am not in a position to refer to the details of the judgment of the Supreme Court (and that of the trial court) in the case of Sanjay Dutt. In particular, I would not like to discuss in detail as to why he was acquitted under the provisions of TADA while he was convicted under the Arms Act. However, in brief, I may point out that the decision of the trial court acquitting him under the provisions of TADA is not a very convincing decision. However, I won’t go into those details here. That may perhaps be a topic for a separate detailed discussion. Also, I don’t want to go into other details of the evidence as per which Sanjay Dutt was aware of the broader conspiracy of the Mumbai blasts and his phone conversations with Dawood gang operatives. Perhaps, the readers may read this excellent article in Tehelka.com (How the Star Escaped TADA) that explains in detail some of the relevant issues; please also read this story.
Let me now conclude this article. As I mentioned in the beginning of this article, it is unfortunate that a former law minister of India and an eminent lawyer should write such an article. One can understand if such a defence is taken by an advocate for an accused during the court proceedings, since in such a case it is the duty of the advocate (who holds a brief on behalf of the accused) to take all possible defences that law permits irrespective of what the court ultimately holds on the basis of such defences. However, in an academic article, one does not hold a brief on behalf of an accused person and has to be impartial and fair. One can understand if a novice advocate writes an academic article with such a defence. However, it is unfortunate that a senior and experienced lawyer should write such an article without properly analyzing the relevant legal provisions and decisions. The only explanation can perhaps be that when eminent people from left, right and centre are competing with one-another to show their sympathies with Sanjay Dutt with their half-baked opinions, even an eminent lawyer of such highest-level stature may also perhaps be tempted to write something and falter. Celebrity status is something that can produce amazing results.
As I write these concluding lines, I notice a news report in TOI: Sanjay Dutt breaks down, says he will not seek pardon. Well, there may be tears in his eyes (one reader of the TOI report commented: after-all, Sanjay Dutt is making use of his acting capabilities). But, what about the tears of the relatives of 257 persons who died in Mumbai blasts and those of hundreds injured? Should a different (softer) law apply to a celebrity? Or, on the other hand, a celebrity should be awarded harsher punishment than an ordinary citizen, because a celebrity is perhaps expected to be more informed and knowledgeable and more balanced in his approach?

Non-registration of FIRs – back to square one

By
Dr. Ashok Dhamija
-
Recently, I wrote an article Beginning of the end of the non-registration of FIRs. In hindsight, the title of that article was appropriately chosen to take care of unpredictable future eventualities. And, here comes that unpredictable (or, should I call it “predictable”?) change. Back to square one. We are back in the world of burking of crimes. Police officers can heave a sigh of relief. The relevant part of Section 166A in IPC, that provided that non-registration of an FIR (under Section 154 of Cr.P.C.) would itself be an offence punishable under Section 166A of the IPC, has now been modified. This specific provision proved to be a very short-lived one. It is pertinent to mention that Section 166A was introduced for the first time recently in IPC through the Criminal Law (Amendment) Ordinance, 2013, that was promulgated by the President of India in the first week of February, 2013. However, Section 166A that has been passed by the Parliament in March, 2013, through the Criminal Law (Amendment) Bill, 2013, is in a modified form which curtails the scope of Section 166A of IPC drastically. The new provision makes non-registration of FIRs punishable under Section 166A only when such FIR relates to certain offences against women (such as rape, molestation, etc.). Such non-registration of FIRs is now NOT an offence under Section 166A of IPC if the FIR that was not registered relates to other offences (i.e., offences, in general, excluding the specified offences against women).
As I mentioned in my previous article, vide Section 3 of the Criminal Law (Amendment) Ordinance, 2013 (download from here) a new Section 166A was inserted in the Indian Penal Code, clause (c) of which laid down as under:
“166A. Whoever, being a public servant,––
… …
… …
(c) fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973 and in particular in relation to cognizable offence punishable under section 354, section 354A, section 354B, section 354C, sub-section (2) of section 354D, section 376, section 376A, section 376B, section 376C, section 376D or section 376E,
shall be punished with imprisonment for a term which may extend to one year or with fine or with both.”.
Thus, non-registration of FIRs for all types of offences was made punishable under Section 166A of the said Ordinance (please read my previous article for more details).
Now, Criminal Law (Amendment) Bill, 2013 (download from here) has been passed by both Houses of Parliament [by Lok Sabha on 19 March 2013, and by Rajya Sabha on 21 March 2013], and it is likely to receive assent of the President of India shortly and will become a law to be called Criminal Law (Amendment) Act, 2013, that will take place of the aforesaid Ordinance which in any case is now about to expire.
Section 166A in this Criminal Law (Amendment) Bill, 2013, has been passed in a form different from what was contained in the aforesaid Criminal Law (Amendment) Ordinance, 2013. The modified clause (c) of Section 166A now reads as under:
“166A. Whoever, being a public servant,––
… …
… …
(c) fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973, in relation to cognizable offence punishable under  section  326A, section 326B, section 354, section 354B, section 370, section 370A, section  376, section  376A, section 376B section  376C, section  376D,  section  376E or section 509,
shall be punished  with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine.”.
So, previously the relevant part of this provision was “…fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973 and in particular in relation to cognizable offence punishable under section 354,…”.
In the new provision, the words “and in particular” have been deleted from clause (c) of Section 166A of IPC. And, it makes a big difference!!! So, now, non-registration of FIR will be punishable under Section 166A of IPC ONLY IF it is in relation to certain offences against women such as Section 354, etc. On the other hand, the previous version of Section 166A of IPC (as in the said Ordinance) had made non-registration of FIR punishable in respect of any type of offence.
Since there is no “Statement of Objects and Reasons” annexed to the Criminal Law (Amendment) Bill, 2013, that came to be passed by the two Houses of the Parliament, I am not in a position to make out as to why this important modification came about. Nonetheless, the fact remains that non-registration of FIRs (in general for any type of offence) will not be an offence now, though non-registration of the specified offences against women will continue to be an offence under Section 166A of IPC.
Since I had chosen the title of my previous article as “Beginning of the end of the non-registration of FIRs”, it is now clear that this “beginning” was a very short-lived one. Only for about two months.
Certain things do not change. Even if the change is introduced by an outside agency, there is resistance to change. Police in India has lost an opportunity to come clean. I call it an “opportunity”, since it was a blessing in disguise. Left to police itself, due to pressure to keep “crime under control” (even though not in reality but only in statistics), there is little incentive to freely register FIRs. The State Governments (and the ruling parties) also have vested interests to keep the crime charts in “control”. The fear of registration of an offence under Section 166A of IPC against the SHO or the officer-in-charge of the Police Station in case of non-registration of an FIR would have acted as the proverbial “force” within the meaning of Newton’s first law of motion (“an object that is at rest will stay at rest unless an external force acts upon it; and, an object that is in motion will not change its velocity unless an external force acts upon it”) to change this ‘static” mindset of police. This could have been an opportunity to freely register the FIRs and remove a major irritant in the way of a better police image in the eyes of the common man and woman. However, this was not to be. The mindset will continue to be “static” as usual. In any case, the change, in the absence of an “external force” will come about very slowly, may be perhaps only due to a feeble “external force” of public opinion since the strong “external force” of a statute is no more applicable now.
So, we are back to square one in the matter of burking of crime and registration of FIRs by police. Wish you good luck (you’ll surely need it) if you are planning to file an FIR in a police station.

Validity of CMM Court as Special Court for trial of Italian Marines

By
Dr. Ashok Dhamija
-
The case involving two Italian marines (Massimiliano Latorre and Salvatore Girone), who were traveling on board the Italian vessel MV Enrica Lexie and were held for the killing of two Indian fishermen, has given rise to several legal issues and controversies. Recent notification reportedly issued by Delhi High Court constituting the court of Chief Metropolitan Magistrate (CMM) of the Patiala House Court in Delhi as the Special Court for conducting trial of the said two Italian marines raises some further legal issues. It is pertinent to point out that by its order dated 18 January 2013 (see, here or here), the Supreme Court of India had directed the Government of India, in consultation with the Chief Justice of India, to set up a Special Court to try the case against the said two Italian marines. On the basis of this order, when the Union Government approached the Delhi High Court, the latter has recommended the name of Mr. Amit Bansal, the Chief Metropolitan Magistrate (CMM) of the Patiala House Court in Delhi as the Special Court. It is expected that the CMM Court will be appointed as the Special Court after the said recommendation is approved by the Chief Justice of India, in accordance with the process of consultation mentioned in aforesaid Supreme Court order. However, there are certain doubts whether the CMM Court will be legally competent to try this case, which are being discussed in this article.
It is noteworthy that the Kerala State Police has filed a charge sheet against the said two Italian marines on 18 May 2012 under Sections 302, 307, 427 read with Section 34 Indian Penal Code and Section 3 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002.
Clause (a) of Section 26 of the Criminal Procedure Code (Cr.P.C.) lays down the courts which can try offences under the Indian Penal Code (IPC), and its relevant part is reproduced below:
“26. Courts by which offences are triable.— Subject to the other provisions of this Code,—
(a) any offence under the Indian Penal Code (45 of 1860) may be tried by—
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other Court by which such offence is shown in the First Schedule to be triable; … …”
Now, in the First Schedule to the Cr.P.C., offences under Section 302 and Section 307 of IPC are both triable only by a Court of Session. In fact, even the offence under section 304 of IPC (i.e., culpable homicide not amounting to murder), which may perhaps become relevant instead of a regular murder charge, is also triable only by a Court of Session.
Since the charge sheet filed against the two Italian marines includes offences under Section 302 and Section 307 of IPC, their trial can be conducted only by a Sessions Court. Trial by the court of Chief Metropolitan Magistrate (CMM) is not permissible under law in such a case.
Likewise, it is also pertinent to point out that as per the provisions of Section 29 of the Cr.P.C., the Court of a Chief Metropolitan Magistrate is not authorized by law to pass a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. On the other hand, while the punishment for an offence under Section 302 of IPC can be either death penalty or life imprisonment, the punishment for an offence under Section 307 of IPC can also be life imprisonment or imprisonment for a term that may extend to 10 years. Therefore, a CMM Court does not have the power to award these sentences prescribed under Section 302 or Section 307 of IPC. While it is true that the Government of India has reportedly given an assurance (read the full Statement of Mr. Salman Khurshid, External Affairs Minister, made in Parliament) to the Government of Italy that the said two Italian marines would not be awarded death penalty, a CMM Court will not have the power to award even other sentences mentioned in Section 302 or Section 307 of IPC (such as, life imprisonment or imprisonment for a term for or beyond seven years).
In view of these reasons, constituting a CMM Court as the Special Court for conducting trial of the aforesaid offences may be legally impermissible.
I can understand if the aforesaid case was referred to the CMM Court of Patiala House in Delhi for the limited purpose of the provisions of Section 209 of Cr.P.C., as the “committal” court, for committing the said case to the Court of Session. But, in that case, it would have been necessary that a Court of Session should have been recommended for being designated as Special Court. However, the aforesaid news reports clearly (here and here) indicate that the said CMM Court itself is being constituted as the Special Court, which will be dealing with the framing of charges and conducting the trial on a daily basis. In fact, under Section 228 of Cr.P.C., the power to frame charges in a Sessions triable case also lies with a Court of Session, and NOT with a Court of Magistrate (including the “committal” court exercising powers under Section 209 of Cr.P.C.).
Therefore, in my considered opinion, it is not permissible to constitute a CMM Court as the Special Court for conducting trial of the aforesaid case against the two Italian marines. I hope that the concerned authorities take the corrective action at the initial stage itself in order to avoid legal complications in future.
[Note: What is mentioned in this article is based on the news reports appearing in various newspapers. I have tried my best to obtain a copy of the notification / order of Delhi High Court in this regard, however I could not get it. In the absence thereof, I have tried to read as many news reports on this issue as is possible to get the best possible information. In fact, this news report in The Hindu newspaper shows that Justice Mr. D. Murugesan, Chief Justice of Delhi High Court, himself has told that newspaper that “The CMM court would try the case in accordance with the Supreme Court’s January 18 judgment”.]

Delay in deciding mercy petitions on death penalty

By
Dr. Ashok Dhamija
-
Delay in deciding on a mercy petition on death penalty becomes a ground for challenging it by filing a petition in Supreme Court, seeking commutation of death penalty to life imprisonment on this ground alone. What does one expect? That, at least this petition will not be delayed. Well, there is a further delay in deciding this petition itself. Moreover, when a 5-Judge Constitution Bench of the Supreme Court has already settled this legal issue as to how a petition challenging delay in deciding a mercy petition has to be dealt with, isn’t it ironical and unfortunate that a 3-Judge Bench of the Supreme Court decides to wait for a 2-Judge Bench to deliver its verdict on the same legal issue? Can a 2-Judge Bench of the Supreme Court sit over a 5-Judge Bench decision? Should a 3-Judge Bench of the Supreme Court wait for a decision by a 2-Judge Bench on a question of law, and then, will it be bound by it (mind you, only the question of law is the same while the cases and the facts are entirely different)? Can’t a 3-Bench decide the matter before it on the basis of a 5-Judge Bench decision already available on the same question of law? Can a writ petition be further delayed, where the very question involved in it is the delay in deciding mercy petition, keeping in view the fact that a case involving death penalty is one of the most important cases (if not THE most important case) that should get the immediate attention of the Supreme Court? Should the Supreme Court keep its judgment reserved for about 10 months (and counting), after concluding its hearing, when the issue involved was the delay of about 8 years in deciding a mercy petition on death penalty? Well, these are some questions that I am repeatedly asking myself for last few days that I thought of sharing with you.
Last week (on 20 February 2013), the Supreme Court stayed the execution of four associates of Veerappan for six weeks on the basis of a writ petition filed before it that seeks commutation of death sentence awarded to them on the ground that there was a delay of about 8 years in deciding their mercy petitions by the President of India causing serious mental agony and violating their fundamental rights. It is noteworthy that these four Veerappan associates, namely, Gnana Prakasam, Simon, Meesakaara Madiah and Bilavendran, are accused of killing 22 policemen and forest officials on 9 April 1993 in Palar in Karnataka in a landmine blast. The Supreme Court had awarded death penalty to them about nine years back in January 2004, and thereafter, they had filed mercy petitions before the President of India. It was after a long delay of about 8 years that their mercy plea was rejected by the President on 12 February 2013. Now, they have approached the Supreme Court to commute their death sentence to life imprisonment on the ground of there being an inordinate delay in deciding their mercy petition. The main reason cited by a 3-Judge Bench (headed by the Chief Justice) of the Supreme Court for staying the execution of these 4 convicts for six weeks was to wait for the decision of a 2-Judge bench of the Supreme Court on a similar issue in another case.
So, which is this other case? Last year, on 19 April 2012, a 2-Judge Bench of Justice G.S. Singhvi and Justice S.J. Mukhopadhaya had reserved its judgment on a similar petition filed by Devender Pal Singh Bhullar, facing death penalty in 1993 Delhi blast, who had alleged that there was a delay of 8 years in deciding on his mercy petition. The Supreme Court is yet to deliver the judgment which was reserved about 10 months back after concluding hearing on the said petition. It may be mentioned that in the year 2002, the Supreme Court had confirmed death penalty to Bhullar by a majority decision of 2-1. His mercy petition was rejected by the President of India in May 2011 after a long delay of about 8 years. In May 2011, the Supreme Court had entertained a petition challenging the 8 years’ delay in deciding the mercy plea. Now, after about two years, the Supreme Court is yet to decide on this petition, even though it concluded the hearing on 19 April 2012 and reserved it for judgment on that day.
Likewise, another SLP (Crl) No. 1105 of 2012, filed by Mahindra Nath Das challenging the delay in execution of death penalty due to delay of about 11 years in deciding on his mercy petition by the President, was also heard along with the above case of Devender Pal Singh Bhullar. This case is also currently pending before the Supreme Court.
It may be pointed out that in a similar way, writ petitions had been filed by three convicts (V. Sriharan alias Murugan and two others) facing death penalty in Rajiv Gandhi killing case before Madras High Court for commutation of their death penalty to life imprisonment in view of inordinate delay in deciding on their mercy plea. These three writ petitions had been filed in the year 2011. By an order dated 01.05.2012 [see, L.K. Venkat v. Union of India, (2012) 5 SCC 292], the Supreme Court has allowed the transfer of these writ petitions from Madras High Court to Supreme Court. Since then, these writ petitions are also pending before the Supreme Court for decision. It is pertinent to mention that in August, 2011, the President had rejected the mercy plea of these three convicts.
These are a few illustrative high-profile cases wherein there was a considerable delay in deciding on the mercy petitions filed by convicts facing death penalty. There have been several other similar cases in the past also.
It is ironical that there should be further delay in deciding the writ petitions filed before superior courts which have been filed mainly for challenging the inordinate delay in deciding the mercy petitions by the President.
Given that death penalty is the most extreme penalty that can be awarded to a person, one fails to understand as to why should there be so much delay in these important cases. Why can’t these cases be given topmost priority and decided expeditiously? After all, there are not many such cases in which death penalty is awarded. It is only in the “rarest of rare cases” that death penalty can be awarded to a person. Even at the worst of the times, when no decisions were being taken on such mercy petitions by the President for a long time, the total number of such petitions was not more than 50. It is not that the President is required personally to decide such mercy petitions. In fact, he is required to decide the mercy petitions as per the advice of the Home Minister. The Home Minister is also assisted by a battery of senior officers and lawyers. No doubt, remarks are also called from the State Governments concerned. However, one fails to understand why a decision on a mercy petition should take more than a month or so. What one sees in practice is that such petitions are kept pending for several years, without appreciating the importance and urgency that needs to be attached to such mercy petitions.
In October, 2006, I had written an article (Show mercy at your own peril) on the mercy petition for Afzal Guru. Little did I realise at that time that it was actually going to take a long period of about 7 years to decide this mercy petition. The mercy petition in Afzal Guru case was finally rejected by the President on 3 February, 2013, and he was finally hanged till death on 9 February, 2013, maintaining a very high level of secrecy. In the absence of such secrecy, there is no doubt that a petition would have been filed in the Supreme Court or a High Court for commutation of his death penalty to life imprisonment in view of the long delay in deciding on his mercy petition by the President of India. And, thereafter, such writ petition would also have remained pending for long before courts.
The most unfortunate part is that after long and unpardonable delays in deciding mercy petitions by the President, the writ petitions filed by the convicts before courts remain pending for long periods leading to further avoidable delays. As we have noticed above, the writ petitions filed by the killers of Rajiv Gandhi, and by the 1993 Delhi blast accused Devender Pal Singh Bhullar, are pending for about two years since 2011 before the courts, in which the main ground is the inordinate delay in taking decision on their mercy petitions. As seen above, in the case of Devender Pal Singh Bhullar, the Supreme Court has not delivered the judgment for last about 10 months even after concluding the hearing on 19 April 2012 and reserving the judgment on that day.
It is pertinent to point out that in the case of Triveniben v. State of Gujarat, (1989) 1 SCC 678 : AIR 1989 SC 1335, which was decided by a 5-Judge Constitution bench of the Supreme Court, it was observed by Justice Jagannatha Shetty (who delivered a concurring judgment supporting the main judgment) as under (page 714, para 76 of SCC):
“If the court wants to have a look at the grievance as to delay, it is needless to state, that there should not be any delay either in listing or in disposal of the matter. The person who complains about the delay in the execution should not be put to further delay. The matter, therefore, must be expeditiously and on top priority basis, disposed of.”
In fact, in that case, the main judgment delivered on behalf of 4 Judges by Justice G.L. Oza also emphasizes (page 694, para 16 of the SCC) the fact that death penalty cases are given top priority, and that it is expected that even in Supreme Court the matters where the capital punishment is involved will be given top priority and shall be heard and disposed of as expeditiously as possible.
Unfortunately, the above dictum of the Supreme Court is not followed in its true spirit.
It may also be pointed out that in the aforesaid Triveniben case, the Constitution bench of the Supreme Court has decided the question of law as to what would be the consequences of delay in execution of death penalty. This Constitution bench was constituted to decide this question of law since there was conflict in the two decisions of the Supreme Court in T.V. Vatheeswaran v. State of T.N., (1983) 2 SCC 68, and Sher Singh v. State of Punjab, (1983) 2 SCC 344, and observations in the case of Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, (1985) 1 SCC 275.
In Vatheeswaran case, a 2-Judge Bench had held that two years’ delay in execution of the sentence after the judgment of the trial court will entitle the condemned prisoner to ask for commutation of his sentence of death to imprisonment for life.
However, in Sher Singh case, a 3-Judge Bench held that a condemned prisoner has a right of fair procedure at all stages (trial, sentence and incarceration) but delay alone is not good enough for commutation and that two years rule could not be laid down in cases of delay. It was further observed that in the context of the nature of offence and delay, the court could consider the question of commutation of death sentence.
In the aforesaid Javed Ahmed case, it was held that the condemned man who had suffered more than two years and nine months and was repenting and there was nothing adverse against him in the jail records, this period of two years and nine months with the sentence of death heavily weighing on his mind would entitle him for commutation of sentence of death into imprisonment for life.
In view of these conflicting decisions, the question of delay in cases of death penalty was referred to the 5-Judge Constitution bench in the aforesaid Triveniben v. State of Gujarat case. In view of urgency of the matter and to avoid further delay, the Supreme Court first delivered its conclusions, which were reported as Triveniben v. State of Gujarat, (1988) 4 SCC 574 : AIR 1989 SC 142; subsequently, detailed reasons in support of these conclusions were delivered separately, which were reported as Triveniben v. State of Gujarat, (1989) 1 SCC 678 : AIR 1989 SC 1335. A combined reading of the aforesaid conclusions and the reasons shows that the Supreme Court held as under:
    1. Undue long delay in execution of the sentence of death will entitle the condemned person to approach the Supreme Court under Article 32.
    1. However, the delay which could be considered while considering the question of commutation of sentence of death into one of life imprisonment could only be from the date the judgment by the Apex Court is pronounced, i.e., when the judicial process has come to an end.
    1. While considering the question of delay after the final verdict is pronounced, the time spent on petitions for review and repeated mercy petitions at the instance of the convicted person himself shall not be considered.
    1. The only delay which would be material for consideration will be the delay in disposal of the mercy petitions or delays occurring at the instance of the executive.
    1. When mercy petitions under Article 72 or 161 are received by the President and the Governor, it is expected that these petitions shall be disposed of expeditiously.
    1. Supreme Court will only examine the nature of delay caused and circumstances that ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to re-open the conclusions reached by the court while finally maintaining the sentence of death.
    1. The Supreme Court, however, may consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life.
    1. No fixed period of delay could be held to make the sentence of death inexecutable and to this extent the decision in the aforesaid Vatheeswaran case was held not to lay down the correct law and therefore to that extent that decision was overruled.
It is germane to mention that a total of 5 writ petitions were heard together in the aforesaid Triveniben case. However, the Supreme Court agreed to commute the death penalty to life imprisonment in only one of these cases [namely, for Harbhajan Singh in W.P. (Cri) No. 186 of 1986]; all other writ petitions were dismissed.
It is thus clear that a 5-Judge Constitution bench of the Supreme Court has already decided the legal question of delay in deciding mercy petitions on death penalty.
Moreover, the aforesaid Constitution bench judgment has been applied in the case of Jumman Khan v. State of U.P., (1991) 1 SCC 752 : AIR 1991 SC 345 : 1991 Cri LJ 439, wherein it was held that the delay in the execution of death penalty in view of mercy petitions in that case was not an undue long delay, and accordingly the Supreme Court refused to interfere in the execution of the death penalty on this ground.
Likewise, the ratio of the aforesaid Constitution bench judgment was applied in the case of Daya Singh v. Union of India, (1991) 3 SCC 61 : AIR 1991 SC 1548 : 1991 Cri LJ 1903, and in this case, the Supreme Court agreed to commute the death sentence to life imprisonment in view of delay of more than two years in deciding on mercy petition in the absence of reasonable explanation for such delay.
Thus, the question of law is already decided by a Constitution Bench of 5 Judges. There is no need for a 3-Judge Bench to further wait for a 2-Judge decision on that legal question. Each case has to be decided on the facts of its own, by applying the legal principle laid down in the aforesaid 5-Judge Constitution Bench decision. Therefore, there should not be any further delay in these death penalty cases wherein the only question before the Supreme Court is about the effect of the inordinate delay in deciding on the mercy petitions. Any further delay will only lead to a fait accompli.

Beginning of the end of the non-registration of FIRs

By
Dr. Ashok Dhamija
-
Following the public uproar after the Delhi gang rape case, and after receipt of the report from the Justice Verma Committee, the President of India has promulgated an Ordinance called THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2013, for amending the relevant criminal laws for providing stringent provisions to deal with crimes against women. One important amendment made by this Ordinance, that has far-reaching effect on policing and that goes much beyond the issue of crimes against women, has mostly remained unnoticed in the media and elsewhere despite its importance. This important amendment changes the rules of the game with regard to non-registration of offences by police officers. That is why the title of this article reads “Beginning of the end of the non-registration of FIRs“. Before I discuss this new amendment, let me first briefly discuss about the problem of non-registration of FIRs.
 
[Update: Please also read my subsequent article Non-registration of FIRs – back to square one for further changes in the law on this issue.]
 
Police stations all over the country are notorious for not registering an FIR (First Information Report) when someone files a complaint about the commission of a cognizable offence. The “burking of crime” is perhaps the most serious grievance that people have against police. Police, all over the country, is incorrigible when it comes to non-registration of FIR on the basis of complaints filed for commission of cognizable offences. This is in spite of the fact that registration of FIR is mandatory whenever any information about commission of a cognizable offence is given to a police station.
Registration of FIR is mandated in Section 154 of the Criminal Procedure Code, 1973, which clearly lays down that:
“Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.”
The word used here is “SHALL” which shows the mandatory character of this legal provision. It is pertinent to point out that the “form” referred to in the above legal provision is commonly called “FIR” or “First Information Report”, though there is no such expression used in the law itself.
Thus, this section is unequivocally clear that registration of FIR is a mandatory requirement. There is no “discretion” to refuse registration of a case. However, the general experience has been that on a majority of occasions the police station would simply refuse to register FIR even though the information given would clearly relate to the commission of a cognizable offence. This is, of course, true only when a common man, the aam aadmi, lodges a complaint with a police station. If you happen to be a VIP, or an influential person, or a person who is willing to pay a bribe, or the like, the police station may agree to register the FIR even if the information given does not in fact amount to a cognizable offence, for, the facts can easily be distorted slightly to bring them within the ingredients of a cognizable offence.
A provision similar to the one noticed above in Section 154 of the Criminal Procedure Code, 1973, existed even in the Criminal Procedure Code of 1898 mandating compulsory registration of FIRs (I may point out that the provisions that existed in the previous Criminal Procedure Codes of 1861 and 1872 were slightly different). About 115 years have passed since then. Meanwhile, India became a sovereign democratic state with guaranty of several fundamental rights. We have developed in many sectors. Economy is growing. Literacy levels are increasing. Right to information is regarded as a fundamental right. Citizens’ rights are valued. People are increasingly becoming aware of their rights under the laws. But, the police appears to have not learnt its lessons during these 115 years. It continues to be in the same 19th century mind-frame. Police still believes that in spite of the legal provisions mandating the registration of FIR immediately after lodging of an information described in Section 154 of Criminal Procedure Code, it has the absolute discretion to register or not to register FIR as per its own sweet will. In a country with the “rule of law” being a basic feature of the Constitution, police wants to be a “rule unto itself”, and to not to bother for the mandatory provision of law. Police officers do not want to introspect. In spite of being aware that “burking of crime” is a major problem of policing which is one of the root causes of a poor image of police, the police officers do not want to change. A few rare exceptions notwithstanding.
No amount of judicial intervention has had any effect. There are several decided cases wherein the Supreme Court held that registration of FIR is mandatory under Section 154 of the Criminal Procedure Code. However, nothing has changed on the ground.
For example, in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604 : 1992 Cri LJ 527, the Supreme Court held as under:
“At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case … … .”
The Supreme Court further observed as under:
“Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression “ information ” without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, “ reasonable complaint ” and “credible information ” are used. Evidently, the non-qualification of the word “information” in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, ‘reasonableness’ or ‘credibility’ of the said information is not a condition precedent for registration of a case.”
And, after comparing the provision existing in Section 154 of the present Criminal Procedure Code of 1973 with the corresponding provisions in earlier Codes (of 1861, 1872 and 1898), the Supreme Court concluded as under:
“It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.”
In the case of Ramesh Kumari v. State (NCT of Delhi), (2006) 2 SCC 677 : AIR 2006 SC 1322 : 2006 Cri LJ 1622, referring to the aforesaid decision in the case of Bhajan Lal, the Supreme Court reiterated that a police officer is required to mandatorily register FIR on a complaint of a cognizable offence by a citizen under Section 154 of the Criminal Procedure Code.
Likewise, in the case of Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1, the Supreme Court observed as under:
“At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the police officer concerned cannot embark upon an enquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157 thereof.”
It was further held in this case that:
“It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.”
Similarly, in the case of Supdt. of Police, CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 : AIR 2003 SC 4140 : 2003 Cri LJ 2322, the Supreme Court held that where the information furnished provides a reason to suspect the commission of an offence, which the police officer concerned is empowered under Section 156 of the Code to investigate, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation.
In the case of Lallan Chaudhary v. State of Bihar, (2006) 12 SCC 229, the Supreme Court again held that the provision of Section 154 is mandatory and that the police officer concerned is duty-bound to register the case on receiving information disclosing cognizable offence and also that genuineness or credibility of the information is not a condition precedent for registration of a case which can only be considered after registration of the case.
Thus, the mandate of law is very clear. Registration of an FIR is mandatory if the information given to the police discloses the commission of a cognizable offence. Of course, in certain exceptional cases, where there is a doubt whether or not the information so given discloses a cognizable offence, it may perhaps be permissible to conduct a preliminary enquiry first instead of registering the FIR at the first instance [for example, see: Shashikant v. CBI, (2007) 1 SCC 630; also see: P. Sirajuddin v. State of Madras, (1970) 1 SCC 595: AIR 1971 SC 520 : 1971 Cri LJ 523.]; but, even in such cases FIR needs to be registered the moment commission of a cognizable offence is made out in such enquiry. However, wherever the commission of a cognizable offence is disclosed from the facts disclosed in the information given to the police, registration of FIR is mandatory. This should be the rule in almost all cases, barring a few rarest of rare cases.
It is pertinent to mention that certain directions were issued recently by the Supreme Court in the case of Lalita Kumari v. Govt. of U.P., (2008) 7 SCC 164, for compulsory registration of FIRs with a specific threat of contempt of court for failing to do so [also see: Lalita Kumari v. Govt. of U.P., (2011) 11 SCC 331]. This matter was then referred to a larger Bench vide the decision reported in Lalita Kumari v. Govt. of U.P., (2008) 14 SCC 337. Thereafter, a 3-Judge Bench of the Supreme Court heard this matter, and vide decision reported in Lalita Kumari v. State of U.P., (2012) 4 SCC 1, this 3-Judge Bench of the Supreme Court has now referred this matter to be heard by a Constitution Bench of at least 5 Judges. At present, a Constitution Bench of the Supreme Court is yet to hear this issue.

The Game-changer – the new Amendment:

With this background, let me now come back to the amendment that has been made in the latest CRIMINAL LAW (AMENDMENT) ORDINANCE, 2013, that can become a game-changer on the issue of non-registration of FIRs, as I mentioned in the very beginning of this article.
Well, vide Section 3 of the CRIMINAL LAW (AMENDMENT) ORDINANCE, 2013, a new Section 166A has been inserted in the Indian Penal Code, clause (c) of which lays down as under:
“166A. Whoever, being a public servant,––
… …
… …
(c) fails to record any information given to him under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973 and in particular in relation to cognizable offence punishable under section 354, section 354A, section 354B, section 354C, sub-section (2) of section 354D, section 376, section 376A, section 376B, section 376C, section 376D or section 376E,
shall be punished with imprisonment for a term which may extend to one year or with fine or with both.”.
On the face of it, this new provision appears to be applicable only for certain offences against women. However, a closer look will reveal that this provision makes punishable the failure to record “any information” given to a public servant under Section 154(1), which relates to registration of FIRs. Of course, it goes on further to mention “and in particular” for certain offences against women. However, the fact remains that this new provision is applicable to “any” non-registration of FIR under Section 154 of Criminal Procedure Code.
So, how this amendment is going to be a game-changer for “burking of crime”? Well, if a police officer fails to register FIR on the basis of an information given to him under Section 154 of the Criminal Procedure Code that discloses commission of a cognizable offence, that police officer himself commits an offence under Section 166A(c) of the IPC!!! Such a police officer can be punished for a term which may extend to one year or with fine or with both.
Section 18 of the aforesaid Ordinance amends the Schedule to the Criminal Procedure Code, 1973, and this newly-created offence under Section 166A has been made non-cognizable and bailable. Thus, one may have to file a private complaint under Section 166A of IPC with the court of the Judicial Magistrate if a police officer does not register FIR even if the information given to him under Section 154 discloses commission of a cognizable offence. So, this may be a bit lengthy procedure and one has to wait and see for some time as to how this provision is used in real life to stop the malpractice of non-registration of FIRs by police. Only the time will tell how successful this new amendment is going to be for dealing with the problem of “burking of crime”. However, a beginning has been made. That is why I have called it only the “Beginning of the end of the non-registration of FIRs”. The fear of punishment of one year imprisonment to the police officer himself, who fails to register the FIR, may perhaps send a strong message to the police. So far, this newly created offence under Section 166A of IPC has gone unnoticed, at least with regard to its application to the wider area of burking of crime for all offences (and not merely for offences against women). My impression is that the police officers are also unaware of the wider application of this new provision to the non-registration of FIRs for “any” cognizable offence, in general, and not merely for offences against women.
So, next time, if you find that officer in charge of a police station (i.e., SHO, or Station House Officer) does not register an FIR on your complaint even though it discloses a cognizable offence, go straight to the court of the Judicial Magistrate and lodge a complaint under Section 166A of IPC against that police officer himself!!!

A guide to Juvenile Justice in India

By
Dr. Ashok Dhamija
-
At one point of time, the 26.11.2008 Mumbai terror attack accused, Ajmal Kasab, a Pakistani terrorist, had claimed that he was a juvenile and therefore he should be given benefit of the law relating to juvenile justice in India, notwithstanding the fact that he was involved in a ghastly terror attack in which 164 persons were killed. However, his claim was found to be false. The issue of juvenile justice is again in limelight since one of the main accused in the 16.12.2012 Delhi gang rape case is also a juvenile. The law requires that this juvenile will have to be dealt with only under the law relating to juvenile justice in India and not under the normal criminal laws that apply to adults. This means that he cannot be sentenced to imprisonment and cannot be awarded the death penalty. There are strong demands from various sections of the society to consider this juvenile as an adult and prosecute him along with other five accused persons in this gang rape case, with many people demanding death penalty for this juvenile as well as for other accused persons. So, let us try to understand whether that is possible and also understand the provisions of law relating to juvenile justice in India.

Division of persons on the basis of age into four categories for deciding their criminal liability:

Indian laws have created four categories of persons (who are accused of committing any offence) on the basis of their age. The criminal liability of a person, who has committed an offence, depends on the age-wise category to which he belongs. This is explained as under:
(1) Below 7 years of age:
Section 82 of the Indian Penal Code declares that nothing is an offence which is done by a child under seven years of age. Thus, irrespective of what crime is committed by a child below seven years of age, he shall not be liable for any punishment for such crime. For example, if a six year old child kills another person, whether intentionally or accidentally or negligently or otherwise, he shall not be criminally liable for this offence. No case can be instituted against him. He can not be prosecuted for this offence. There is a complete bar for his prosecution if he is below the age of seven years. Period.
(2) Between the age of 7 years and 12 years:
Section 83 of the Indian Penal Code lays down as under:
“Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.”
Thus, if an offence is committed by a child who is above 7 years of age but under 12 years of age, it will first have to be ascertained whether the child has attained sufficient maturity of understanding due to which he can judge the nature of his alleged conduct (i.e., the act of committing the offence) and the consequences thereof. For example, let’s say a child picks up a gun and shoots and kills another person. The question is whether he had developed sufficient maturity to understand that shooting with a gun can kill another person (and, in fact, also whether he understands what is the meaning of “killing”) and also that what are the consequences of killing a person in this manner. It may so happen that a child might have considered the gun to be a toy-gun (similar to a toy-gun  with which he might have been playing as a child).
Now, if such a child commits an offence and he did not have the sufficient maturity of understanding the nature and consequences of his conduct, he would not be liable for that offence. On the other hand, if he had the sufficient maturity of understanding to judge the nature and consequences of his conduct (leading to that offence), he shall be liable for that offence in accordance with the provisions of law. However, even in such a case, he shall not be prosecuted and punished like adult offenders. Such a child committing an offence shall be dealt with only in accordance with the provisions of the law relating to juvenile justice in India (details mentioned below). Thus, even if such a child is liable for action for the offence committed by him, he cannot be imprisoned and he cannot be given death penalty.
(3) Between the age of 12 years and 18 years:
If an offence is committed by a person who is of the age of 12 years or above but below the age of 18 years, he shall be liable for such offence. However, he shall not be prosecuted and punished like adult offenders. He shall be dealt with only in accordance with the provisions of the law relating to juvenile justice in India. Thus, such a person also cannot be imprisoned and he cannot be given death penalty.
(4) Of or above the age of 18 years:
If a person committing an offence has completed the age of 18 years or is above the age of 18 years, he is criminally liable for such offence in accordance with the normal criminal laws of the country. For example, such a person committing the offence of murder shall be liable for punishment under Section 302 of Indian Penal Code, and his prosecution will be conducted under the provisions of the Criminal Procedure Code. Such a person is thus liable for any punishment that is prescribed for the offence committed by him. Of course, other general exceptions relating to offences (such as right to private defence) shall be available to him during such prosecution, if otherwise applicable in the circumstances of the case.

Law relating to juvenile justice:

The law relating to juvenile justice in India is presently contained in the Juvenile Justice (Care and Protection of Children) Act, 2000. This Act adopts a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation. Any offence committed by a juvenile, for which he is criminally liable as per the provisions already explained hereinabove, is required to be dealt with in accordance with the provisions of this Act only, notwithstanding anything to the contrary contained in any other law.
Let us first understand what is meant by a “juvenile”. Section 2(k) of this Act defines that “juvenile” or “child” means a person who has not completed eighteenth year of age. Thus, any person below the age of 18 years is a juvenile. Accordingly, as per the provisions of this Act, any offence committed by a person below the age of 18 years is required to be dealt with under this Act. However, this is also subject to the provisions of law as mentioned in the aforesaid four age-wise categories. Thus, if a child is not liable for any action for an offence committed by him (e.g., if he is of the age of 5 years only), no action can be taken against him even under the provisions of the aforesaid Juvenile Justice Act. However, if a child/juvenile commits an offence and does not come under any of the “complete” exemptions mentioned in the aforesaid four age-wise categories, then the provisions of this Act will be attracted and such juvenile can be dealt with only under the provisions of this Act. Such juvenile cannot be prosecuted under the normal criminal laws applicable to adults.
It is pertinent to mention that Section 16 of the said Juvenile Justice Act clearly lays down that the sentence of death penalty cannot be awarded to any juvenile, and likewise the sentence of imprisonment for any term cannot be awarded to a juvenile. Thus, a juvenile can never be sentenced with imprisonment (even for a day) and no death penalty can be awarded to him.
Moreover, as per the provisions of Section 15 of the said Act, irrespective of the gravity of the offence committed by a juvenile, the maximum that can happen to the juvenile is that he can be sent to a special home (meant for reception and rehabilitation of juveniles) for a maximum period of three years. Remember that a “special home” is not a prison. It is a rehabilitation centre for juveniles set up under Section 9 of the Act. In fact, for most offences committed by a juvenile, he may simply be let off by advice or admonition, or may be asked to perform community service, or asked to participate in group counselling, or released on probation of good conduct, or on fine in some cases, etc.
Moreover, proceedings against a juvenile for an offence committed by him are not to be conducted in the regular trial court. These proceedings are conducted by a Juvenile Justice Board that consists of three members, including a Metropolitan Magistrate (or Judicial Magistrate) and two Social Workers.
Thus, even if a juvenile has committed the most heinous offence of terrorism or gang rape, the maximum that can happen to him is that he may have to spend a maximum period of three years in a special home to rehabilitate him. No imprisonment and no death penalty is possible even in such cases.
Therefore, the juvenile involved in the 16.12.2012 Delhi gang rape case cannot be awarded the death penalty or be sentenced to imprisonment even for a single day. This is despite the fact that he was actively involved in the said gang rape, and in fact he even instigated other accused persons in that case. He was the person, who inflicted perhaps the maximum harm to the victim in that case, as per the reports appearing in the media. Yet, the law relating to juvenile justice prevalent in India does not allow any imprisonment or death penalty to him.
In a similar manner, even if a juvenile is accused of being a terrorist, having committed mass murders, he cannot be imprisoned and he cannot be awarded with the death penalty. It is pertinent to point out that even a foreign citizen is entitled to the benefit of the law relating to juvenile justice in India if he happens to be of the age of less than 18 years. Thus, if Ajmal Kasab, the Pakistani terrorist involved in the Mumbai terror attacks of 26.11.2008, had been found to be of the age of below 18 years (as he had initially claimed), it would not have been possible to award death penalty to him and to execute him. His aforesaid claim of being a juvenile was found to be false and he was found to be an adult at the time of commission of the said offence.
The readers may feel that the provisions of the aforesaid Juvenile Justice (Care and Protection of Children) Act are grossly unjust to the victims of the heinous offences committed by juveniles and to the society at large. For example, in the case of Delhi gang rape, there are widespread demands to award death penalty to the juvenile involved in that case by prosecuting him in the regular court of law. Likewise, there are also demands for amending the aforesaid Juvenile Justice Act to make provisions for creating exceptions in the case of juveniles involved in heinous offences. There is also a demand for reducing the age limit for a juvenile to 16 years from the current 18 years.
It may be pointed out that while it may be possible to amend the said law relating to juvenile justice in India with prospective effect, it will not be possible to amend it retrospectively. This means that if the age limit for juvenile is to be reduced, it can be done only for future cases and not for the past offences. Likewise, it is not possible to apply enhanced punishments to the past acts of the juveniles by subsequent amendments to the said Act. There is a clear restriction on such retrospective amendments in the provisions of Article 20 of the Constitution of India.
Article 20 of the Constitution, inter alia, lays down that “No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence”.
Article 20 is a fundamental right guaranteed to all persons (whether citizens or otherwise). Article 13 of the Constitution clearly lays down that any law that is inconsistent with the fundamental rights is void. Likewise, the Parliament and the State legislatures are prohibited from making any law that takes away or abridges the fundamental rights guaranteed under the Constitution. In fact, a 13-judge bench of the Supreme Court had held in 1973 in the case of Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461, that basic features of the Constitution cannot even be amended. Many of the fundamental rights have also been held to the basic features of the Constitution. The list of basic features keeps on expanding as newer cases are decided by the Supreme Court. Article 20 appears to be one such basic feature of the Constitution, and it may not be possible to take away or abridge the fundamental right guaranteed under this provision even by an amendment of the Constitution.
Thus, it is not possible to award death penalty or imprisonment to the aforesaid juvenile involved in the said Delhi gang rape case even by amending the aforesaid Juvenile Justice Act since such amendment will not apply to him retrospectively due to the fundamental rights guaranteed in Article 20 of the Constitution. To some people, it may appear to be unjust or unreasonable; however, what I have mentioned above is the law of the land howsoever unpleasant it may appear to be to some people.
The only way in which the aforesaid juvenile can be punished with imprisonment or death penalty, is if he turns out to be an adult, i.e., of the age of 18 years or more by scientific tests being conducted on him to scientifically verify his age. If the scientific tests also show that his age is less than 18 years, i.e., he is a juvenile as per the aforesaid law, in that case it is not permissible under law to punish him with imprisonment or death penalty, in any circumstances.
Before I conclude this article, let me point out that the General Assembly of the United Nations had adopted the Convention on the Rights of the Child on 20.11.1989. This Convention had prescribed a set of standards to be adhered to by all member countries in securing the best interests of the child. One of the important component of this Convention was relating to social reintegration of child victims, to the extent possible, without resorting to judicial proceedings. It may be pointed out that the Government of India had ratified this Convention on 11.12.1992. Likewise, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), also lay down certain standards for dealing with juveniles. The aforesaid Juvenile Justice (Care and Protection of Children) Act was enacted by the Parliament of India in the year 2000 keeping in view the standards prescribed in these Conventions and other relevant international instruments. This fact is specifically mentioned in the Preamble of the said Act. The objective, therefore, was to ensure that juveniles are treated differently from adults in the matter of offences committed by them, with the object of rehabilitating them in a more humane way rather than punish them.
No doubt, there are some lacunae in the law relating to juvenile justice. Some of the changes could perhaps be reduction in the age-limit from 18 years to 16 years (at least in the case of male persons), and a provision for creating reasonable exceptions in the case of heinous and grievous offences subject to approval by a high-level expert body in the fact and circumstances of a case. However, there is a need to first seriously deliberate upon the changes by involving experts from different fields, instead of jumping to hasty conclusions. The fact remains that there is a need to reconcile the competing requirements of a more humane approach in the case of juveniles and the demands for harsher punishments to those who consciously commit horrifying offences knowing fully well their consequences. There is no easy answer, unfortunately, though. For each single juvenile committing a ghastly offence that calls for a harsh punishment, there may perhaps be 10 unfortunate juveniles who may have committed certain offences in compelling circumstances (many of which may be beyond their control) that call for a more humane approach in their cases. So, either extreme may not be desirable. A delicate balance may have be struck as per which most juveniles, as a general rule, are required to be treated in a more humane manner; but in some rarest of rare cases of heinous and grievous offences deliberately and intentionally committed by a juvenile, he may be subjected to prosecution and punishments under the normal criminal laws of the country after an approval by a high-level expert body is accorded in the fact and circumstances of a case.
In the ultimate analysis, one also has to keep in mind the failure of our system. More than 65 years after independence, we are yet to provide even basic education to our children and leave many of them to the unhealthy environment that forces them to do certain things that a normal human being may not do. Many of such children are in fact victims of the circumstances they live in. Therefore, a comprehensive and rational approach is needed to solve this problem.

Look at what Supreme Court did in a gang rape case

By
Dr. Ashok Dhamija
-
It is Black Saturday on 29th December 2012. The victim in the Delhi gang-rape case of 16th December 2012 has unfortunately died today fighting a brave battle for life, first in Safdarjang Hospital in Delhi, and then in Mount Elizabeth Hospital in Singapore. The whole nation is mourning the death of this unfortunate gang-rape victim. In her death, she has exposed the whole criminal justice system as well as the poor governance and poor situation of law & order in the country, in particular the safety of women. There are demands for enhancing punishment for rape cases, including demands for prescribing death penalty for rape cases.
In this environment, one may find it unbelievable how in a recent proven gang-rape case, the Supreme Court had drastically reduced sentence awarded to the rapists without adequate and reasonable cause.
In the recent case of Baldev Singh v. State of Punjab, (2011) 13 SCC 705 : AIR 2011 SC 1231 : 2011 Cri LJ 1746, that was decided on February 22, 2011, the Supreme Court (a bench consisting of Justice Markandey Katju and Justice Gyan Sudha Misra) had drastically reduced the sentence in a gang rape case under Section 376(2)(g) of the IPC to much below the minimum punishment prescribed under the law on grounds that did not appear to be so special and that appeared to be commonly available in many other cases. A copy of this judgment is available online here.
Section 376(2)(g) of IPC lays down that whoever commits gang rape shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. However, the proviso to the said sub-section 376(2) provides that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
In the aforesaid case of Baldev Singh, the Supreme Court reduced the sentence of the three appellants, found guilty of committing gang rape, to the period of only about three and half years’ imprisonment already undergone. It appeared to be an unusual case wherein the sentence has been drastically reduced from the minimum prescribed ten years to the aforesaid much shorter period without there being any special or adequate reasons.
The case appears even more unusual when one looks at the fact that the Supreme Court had considered the fact of the case being an old case (incident of gang rape took place in the year 1997, i.e., about 14 years back) as a “circumstance for invoking the proviso to Section 376(2)(g) and awarding a sentence less than 10 years, which is ordinarily the minimum sentence under that provision”. Thus, the Supreme Court considered the fact of the case being an old case of 14 years as an adequate and special reason for reducing the said sentence to much below the minimum prescribed sentence. For this purpose, the Supreme Court also considered the fact that the parties have entered into a compromise to finish the dispute. It was mentioned that the appellants (rapists) had since got married and the victim had also got married meanwhile (it is pertinent to point out that these were separate marriages and it is not the case that the victim had married the rapist, which in any case was not possible since there were 3 rapists).
Unfortunately, the reasons given by the Supreme Court do not appear to be special and adequate reasons for reducing the punishment in the said gang rape case to a much shorter punishment than the minimum prescribed under law. Given the fact that many of the cases remain pending before the trial court itself for 15-20 years with appeals before the High Court and Supreme Court needing further longer durations, the aforesaid Baldev Singh case cannot be given the special advantage of being an old case, since within a short span of 14 years this case had the so-called luxury to reach (and get decided by) the Supreme Court. Thus, this case got decided from the trial court, the High Court and then the Supreme Court within a total period of 14 years. There are a large number of other similar cases that take much longer periods for this purpose. So, this cannot be a special reason.
Secondly, the fact of the accused getting married during the long pendency of the case or the victim getting married during such long period, is not an unusual thing. One cannot expect that they should not marry during the long pendency of the trial or the appeal proceedings. And, if they do marry (not to each other), this fact does not deserve any special consideration as it is a usual phenomenon common to most cases.
Thirdly, the fact that the parties had arrived at a compromise has to be seen in the context of the fact that rape (and more so, gang rape) is a non-compoundable offence under law. Therefore, the law does not give any recognition to a compromise between the rapist and the rape-victim. This being so, giving undue importance to such a compromise may have the tendency to lead to the unfortunate consequence of the rapists trying to put pressure on the rape-victims to compromise. This will negate the legislative intent and mandate. It may also lead to further victimisation of the poor rape-victims. So, money power or muscle power may overpower the legal processes by way of a “forced” compromise. Moreover, in the instant case, it appears that the Supreme Court did not make any efforts to call for the rape-victim to authenticate the truthfulness and circumstances of the compromise and to ascertain for itself as to whether the so-called compromise was voluntary and genuine.
The recent rape case of Patiala in Punjab is relevant in this regard. In that case, even the police officers were trying to force a compromise between the rapists and the victim. Later, the victim committed suicide. It is only after this that this Patiala case attracted the attention of people at national level that led to some belated action against the concerned police officers.
Therefore, a compromise between the parties is rather a cause to look at the case with suspicion. It is like adding insult to injury. First you commit rape and then force a compromise on the victim using money or muscle power. That is why perhaps, the Parliament, in its own wisdom, decided to keep the offence of rape as a non-compoundable offence, where a compromise is not allowed.
It is unfortunate that, ignoring these aspects, the Supreme Court considered the compromise in the said Baldev Singh case as a reason to reduce the punishment of the gang-rape convicts.
No doubt, the Supreme Court has the power to do “complete justice” in a given case before it under the provisions of Article 142 of the Constitution of India (though the judgment in this case does not refer to Article 142). Nonetheless, the fact remains that a sincere effort to do “complete justice” should not lead to an unintended result of injustice to the important social cause of ensuring gender equality and safety of women in as much as an unusual judgment like this has the unintended capacity to open floodgates for similar judgments if the High Courts and trial courts take a cue from the Supreme Court. One can understand when there are compelling reasons in a case to reduce punishment. But, to reduce punishment (below the statutory minimum) in a case where there are no such adequate or special reasons and when the Parliament has mandated a minimum sentence cannot be justified. The fact remains that “complete justice” cannot be allowed to become “complete injustice”.
Justice Markandey Katju, who delivered the aforesaid judgment, is now Chairman of the Press Council of India (it is ironical to point out that the other Judge in the Supreme Court bench that delivered the aforesaid judgment, Justice Gyan Sudha Mishra, is a lady Judge). Interestingly, after the recent infamous Delhi gang-rape case, Justice Katju is reported to have said that rape is not India’s only problem. In another statement, Justice Katju is reported to have said that the “emotional outburst and agitations following the Delhi gang rape will achieve nothing and it will fizzle out in a few days”.
It is thus unfortunate that even the higher judiciary at the level of Supreme Court may not always be sensitive to the gravity of a serious offence such as gang-rape. This is in addition to the apathy of the police administration and the political executive. No doubt, rape offences continue to be committed unabated, without any fear of law. Mass protests by people all over the country following the horrific Delhi gang-rape case are understandable in this context since they show people’s anger at the system.
Update (January 3, 2013): Justice Katju has now written an article on his blog explaining the reasons for the judgment in the aforesaid Baldev Singh case (mentioning that “a lot of criticism …appeared on net…”, which is an apparent reference to my aforesaid article, though it is not mentioned directly). Unfortunately, Justice Katju has not come up with any new explanation and he has repeated the reasons that were mentioned in his judgment. The arguments advanced in my above article have not been answered by Justice Katju. I have the highest respect for Justice Katju. However, in my respectful submission, the Supreme Court decision in the above gang-rape was really unfortunate, and Justice Katju should perhaps have shown magnanimity in accepting that fact if at all he had decided to explain the reasons for reducing the sentence after his retirement (though, in all fairness, I must admit that it is not expected that a retired Judge of the Supreme Court should explain the reasons for his judgment after his retirement, since the judgment speaks for itself).

Disobeying illegal orders of superiors

By
Dr. Ashok Dhamija
-
Pakistan Supreme Court deserves to be complimented profusely. It has acted bravely to uphold the rule of law. A few months back, in April 2012, it convicted the Pakistan Prime Minister Yusuf Raza Gilani of contempt for refusing to reopen an old corruption case against Asif Ali Zardari, the President of Pakistan. Gilani had to vacate the office of the Prime Minister after this conviction. Later, the Supreme Court initiated a contempt case also against the new Prime Minister of Pakistan, Raja Pervez Ashraf, for the same reason, i.e., failing to reopen the said old corruption case against the President; however, subsequently, the Prime Minister Raja Pervez Ashraf agreed to obey the order of the Supreme Court for reopening of the said corruption case. Now, on 19 October 2012, Pakistan Supreme Court has passed in unprecedented order calling for action against a former army chief and a former ISI chief of Pakistan who are alleged to have acted on certain alleged illegal orders of the then President of Pakistan (see, below, for details). In doing so, Pakistan Supreme Court has not only upheld the rule of law, but has also taken on the powerful army and ISI establishment in Pakistan.
In its order, Pakistan Supreme Court has stated that a political cell was formed in the President House in 1990 and the then ISI Chief Assad Durrani, the then Army Chief Aslam Beg and the then President of Pakistan Ghulam Ishaq Khan were involved in the rigging of elections. It is reported that General Aslam Beg had argued that he was simply following the orders of then President Ghulam Ishaq Khan when he authorised the distribution of millions of rupees to politicians in a bid to defeat the Pakistan Peoples Party in the 1990 polls. In its aforesaid order dated 19 October 2012, Pakistan Supreme Court (a bench of 3-Judges headed by the Chief Justice Iftikhar Muhammad Chaudhry) has ordered that the then Army chief, the then (late) President and the then ISI Chief were involved in rigging the elections of 1990 by acting in violation of the Constitution and has ordered for an inquiry by the FIA (Federal Investigation Agency) against all those involved. It has also directed the Federal government to take necessary steps under the Constitution and law against them.
No doubt, this judgment of Pakistan Supreme Court is very important for upholding the rule of law and for holding that the Constitution is supreme, and thereby implying that the institutions of army and the ISI are not above the law. This judgment also raises an important question of law as to whether acting in compliance of illegal orders of superiors can be a valid defence in a case before a court of law? In other words, it is permissible to disobey the illegal orders of a superior? These questions also have relevance under Indian laws.
We, in India, have a written Constitution. The Constitution is supreme and is binding on all authorities as well as on the people. All laws and authorities in India derive their validity and powers, respectively, from the Constitution. All authorities are required to uphold the Constitution and the laws of the land. Article 60 of the Constitution requires the President of India to make an oath or affirmation, inter alia, to preserve, protect and defend the Constitution and the law. Article 69 of the Constitution requires the Vice President of India to “bear true faith and allegiance to the Constitution of India as by law established”. As per the provisions of clause (4) of Article 75 of the Constitution, read with Third Schedule thereof, the Prime Minister and other ministers are required to “bear true faith and allegiance to the Constitution of India as by law established” and also to “do right to all manner of people in accordance with the Constitution and the law”. Similar oath or affirmation is required to be made by other constitutional authorities, including the Chief Justice of India, judges of the Supreme Court, Comptroller and Auditor General of India, and Members of Parliament.
These provisions unequivocally show the supremacy of the Constitution. All authorities are bound by the provisions of the Constitution and the laws made thereunder. In as much as the powers and responsibilities of Government officers of various levels are specifically laid down in various laws enacted by the competent legislature and/or in the rules and regulations framed under the authority of such laws, it goes without saying that all such Government officers are also equally bound by the provisions of the Constitution and the laws.
Thus, all the authorities are required to act as per the commands of law. They cannot act in a manner that can be termed as “illegal”. It is impermissible for a superior officer or authority to issue an “illegal” order to his subordinate authority or officer. As a natural corollary, it follows that an authority or officer is not required to obey an “illegal” order of a superior.
It is not for nothing that the Conduct rules applicable to Government officers specifically lay down requirement of issuing written orders by the superiors. For example, Rule 3 of the All India Services (Conduct) Rules, 1968, which are applicable to the IAS and IPS officers, requires that the direction of the official superior shall ordinarily be in writing, and that where the issue of oral direction becomes unavoidable, the official superior shall confirm it in writing immediately thereafter. This rule further lays down that a member of the Service who has received oral direction from his official superior shall seek confirmation of the same in writing, as early as possible and in such case, it shall be the duty of the official superior to confirm the direction in writing. Clearly, this rule is meant as a safeguard to ensure that “illegal” orders are not made in the form of “oral directions” by superior officers. The requirement of making only “written” orders, or of confirming the “oral directions” in writing subsequently if issuance of such oral directions was unavoidable, has a salutary effect since no authority would like to pass “written” orders if they are illegal or against the provisions of law. It is unfortunate that several officers still obey “illegal” orders of the superiors which are usually made “orally” without being confirmed in writing thereafter. The aforesaid safeguard against “oral directions” is already available in the statutory rules to the Government officers if only they wish to avail of it.
Coming back to the original issue of whether one can take the defence of having acted in compliance of (illegal) orders of a superior and whether it can be a valid defence in a court of law, let us analyse the legal position as it prevails in India.
There is an old famous legal maxim of the English common law: ignorantia facti excusat, ignorantia juris non excusat. It means “ignorance of facts excuses, ignorance of law does not excuse”. In simple language, it means that while the ignorance (or mistake) of fact may be a valid defence, ignorance (or mistake) of law is not a valid defence in a case. Thus, a mistake of law is never a defence in law, whether civil or criminal. This legal maxim has been enacted in Indian laws. For example, Section 76 of the Indian Penal Code states as under:
“76. Act done by a person bound, or by mistake of fact believing himself bound, by law.—Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.”
Thus, if a person commits an act, by reason of a mistake of fact, in good faith believing himself to be bound by law to do it, he has not committed any offence. However, this section excludes from such exemption of having committed an offence a similar act which is committed by reason of a mistake of law.
Likewise, Section 79 of the Indian Penal Code lays down as under:
“79. Act done by a person justified, or by mistake of fact believing himself justified, by law.—Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.”
Here again, while a mistake of fact may be a valid defence to an offence, mistake of law is not.
Thus, ignorance of law is no excuse. The above rule can also be stated thus: “Every man is presumed to know law”. Therefore, if you commit an act which is declared an offence under a law, you cannot take the defence that you are ignorant of such act having been declared as an offence. Notwithstanding your ignorance of law, notwithstanding that you might not have been aware that committing such an act is an offence under a law, you are liable to be punished for having committed such an offence. At first look, it may appear to be harsh. You are being punished for an act which you did not even know to be an offence. After all, even top lawyers are supposed to be fighting in courts as to what the law is, and it is not rare to see even the judges being unaware of the exact provisions of law. How can then a common man (such as an illiterate person) be supposed always to know what the law is? However, the correct reason why the ignorance of law is not a valid defence is that if it were the defence then every accused person will take the defence that he was not aware that such act was made an offence under a law. This would require that in every case it will have to be established first that the person accused of an offence was aware that such act had been declared as an offence under a law. This would mean that a large number of criminals will evade conviction and punishment. Mainly for this reason, a legal principle or a so-called legal fiction exists laying down that ignorance of law is no excuse.
It has been held that mistake of law ordinarily means mistake as to the existence or otherwise of any law on a relevant subject as well as mistake as to what the law is [Tustipada Mandal (1950) Cut 75]. It is also held that ignorance of the municipal law of the Kingdom, or of the penalty thereby inflicted upon offenders, doth not excuse any, that is of the age of discretion and compos mentis, from the penalty of the breach of it; because every person of the age of discretion and compos mentis is bound to know the law and presumed so to do [1 Hale P.C. 42]. If any individual should infringe the statute law of the country through ignorance or carelessness, he must abide by the consequences of his error, it is not competent to him to aver in a Court of Justice that he was ignorant of the law of the land, and no Court of Justice is at liberty to receive such a plea [Fischer, (1891) 14 Mad 342, 354, F.B.].
The said maxim ignorantia juris non excusat, in its application to criminal offences, admits of no exception, not even in the case of a foreigner who cannot reasonably be supposed in fact to know the law of the lands [Esop, (1836) 7 C. & P. 456]. It has further been laid down in respect of the plea of ignorance of a statute which has been newly passed, that, although a person commits an act which is made an offence for the first time by a statute so recently passed as to render it impossible that any notice of the passing of the statute could have reached the place where the offence has been committed, yet his ignorance of the statute will not save him from punishment [Bailey’s case, 1800- Russ & Ry. 1].
Thus, it may be seen that the plea of ignorance of law is not available even to a foreigner and also even in respect of a statute passed recently.
This being the legal position prevailing in India, how can an authority or an officer in India plead ignorance of law? How can they claim that they were not aware of what was “legal” and what was “illegal”? Once they are supposed to be aware what is “illegal”, how can they take the defence of having acted in compliance of “illegal” directions of a superior? More so, when they are expected to uphold the Constitution and the laws of the land? Likewise, when they are duty-bound to abide by the provisions of the Constitution and the laws?
What cannot be done directly, cannot be done indirectly. If a person is not allowed to do an “illegal” thing by himself, how can he be allowed to do an “illegal” thing under the orders of a superior?
It is pertinent to mention that in the case of R.S. Nayak v. A.R. Antulay, (1986) 2 SCC 716 (at p. 769): AIR 1986 SC 2045 : 1986 Cri LJ 1922, the Supreme Court has held that “…the superior’s direction is no defence in respect of criminal acts, as every officer is bound to act according to law and is not entitled to protection of a superior’s direction as a defence in the matter of commission of a crime”.
It, thus, follows that if any person obeys an “illegal” order of a superior, he shall be doing it at his own peril. The law will not protect him. He cannot take a defence in a court of law that he was acting in compliance of the orders of the superiors though that order itself was an “illegal” order. Thus, under Indian laws, complying with or obeying an illegal order of a superior may expose the concerned person to legal action under relevant provisions of law, which may include a criminal prosecution in appropriate cases.
Does it mean that one can disobey illegal orders? Of course, one can. There are sufficient safeguards in law to protect a person refusing to obey illegal orders. Unfortunately, in practice, it becomes highly subjective whether the orders were illegal. Moreover, in practice, a person disobeying illegal orders may be subjected to witch-hunt under some other pretexts or in some other matters. That is, of course, a professional hazard that one has to consider. However, the fact remains that obeying illegal orders of a superior may land one in trouble, as the aforesaid judgment of Pakistan Supreme Court shows that it can happen to even those who have been the mightiest persons in the land (army chief and ISI chief), though it is true that the last word in this episode is yet to be written. One hopes that the legal position in India should in fact be clearer than this.
[Note: Some details mentioned in this article have been taken from a previous article of the author.]

Right of a Pakistan National to buy property in India

By
Alabhya Dhamija
-
By Alabhya Dhamija
On the 29th of September 2012, Adnan Sami, a well-known Pakistani singer who has sung for many Bollywood movies, albums and shows in India, approached Delhi High Court with a writ petition. He wants clearance to buy a property in Delhi, namely a flat in the DLF Capital Greens in the city. He wants the High Court to strike down a Reserve Bank of India circular that prohibits persons of certain nationalities, including Pakistanis, from buying immovable property in India without its prior permission.
In his petition, Sami has stated that he is residing continuously in India for the past 13 years and has even sung a song for the World Cup Cricket for the Indian Team. He pleads that being a professional artist and residing in India for such a long period of time, he should be eligible to buy a house for himself. His argument is that the Foreign Exchange Management Act of 1999 recognizes the rights of “person resident in India” and it is under this category that he claims he is eligible to purchase a property in India. According to Adnan Sami, the RBI circular is discriminatory as even after long residence, it requires a foreign citizen from certain countries (such as Pakistan) to seek permission from RBI for buying a property in India. He argues that this RBI circular is discriminatory as it prohibits nationals of some countries (such as Pakistan) from buying properties in India.
Let us now examine the claim made by Adnan Sami in his petition as to whether it is legally tenable.
Let us first find out what the RBI restriction is. I may point out that purchase or sale of an immovable property such as a residential flat is a capital account transaction. Under Section 6(2) of the Foreign Exchange Management Act, 1999, the RBI in consultation with the Central Government has the power to specify any class or classes of capital account transactions which are permissible. Section 6(3)(i) of this Act further empowers RBI to make regulations to prohibit, restrict or regulate acquisition or transfer of immovable property in India, other than a lease not exceeding five years, by certain persons. Section 47(2)(a) of this Act gives power to RBI to make Regulations for this purpose. In accordance with these provisions, the RBI has made the Foreign Exchange Management (Acquisition and transfer of immovable property in India) Regulations, 2000. Regulation 7 states as under:
“7. Prohibition on acquisition or transfer of immovable property in India by citizens of certain countries.- No person being a citizen of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal or Bhutan without prior permission of the Reserve Bank shall acquire or transfer immovable property in India, other than lease, not exceeding five years.”
Thus, according to this Regulation which has legal force in India, a citizen of Pakistan cannot purchase an immovable property in India without the prior permission of the RBI. This restriction is applicable to nationals of only a few countries as mentioned above.
It appears that Adnan Sami is challenging this Regulation made by RBI as being discriminatory against him as a citizen of Pakistan, and also because he is a “person resident in India”.
Let us now turn to the provisions of the Constitution. Article 14 of the Constitution of India provides that “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
This right to equality is available to all persons, which include citizens of India and even foreigners. Therefore, all persons are required to be treated equally. But, does it mean that all persons shall be treated equally in all circumstances?
Let us take an example. ‘A’ an illiterate person says that he wants to practice as a surgeon. He files a writ petition in the High Court, under Article 14 stating that there is discrimination against him vis-à-vis a person who is having an M.B.B.S. or higher degree, and praying that he should also be given the right of practicing as a surgeon. He states that the authorities are wrong in not allowing him to practice as a surgeon as there is a right to equality given to him as a fundamental right under the Constitution of India and thus there should be there no discrimination against him vis-à-vis an MBBS-qualified person. Will ‘A’ succeed in his petition? Can he be permitted to practice as a surgeon?
It is obvious that ‘A’ cannot be permitted to practice as a surgeon because he is not professionally qualified and it is inappropriate to permit such a person to become a surgeon as he is likely to endanger the lives of people. Thus, in such a case, the Court will not force the right to equality between him and a qualified surgeon. Therefore, the authorities are justified in the so called ‘DISCRIMINATION’ in this case!
Thus, right to equality under Article 14 does not mean equality in all circumstances. In the case of Chiranjit Lal v. Union of India, (1950) S.C.R. 869, the Supreme Court held that the principle of right to equality does not take away from the state the power of classifying persons for legitimate purposes.
In the case of Dhirendra Kumar v. Superintendent and Remembrancer of Legal Affairs, Govt. of W.B.,  AIR 1954 SC 424 : (1955) 1 SCR 2, the Supreme Court had observed that:
“Now it is well settled that though Article 14 is designed to prevent any person or class of persons from being singled out as a special subject for discriminatory legislation, it is not implied that every law must have universal application to all persons who are not by nature, attainment or circumstance, in the same position, and that by process of classification the State has power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject; but the classification, however, must be based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis.”
Thus, equal protection of the laws means that, “among equals, the law should be equal and equally administered, that like should be treated alike…”. In other words, it means that equal treatment should be given to the persons in equal circumstances. However, it is permissible to classify persons in different categories and treat them differently. But this classification of persons must be reasonable.
The Supreme Court observed, in the case of J.K. Industries Ltd. v. Chief Inspectors of Factories and Boilers, (1996) 6 SCC 282, that in order to be ‘reasonable’, a classification must not be arbitrary, but must be rational. The reasonableness of a provision depends upon the circumstances obtaining at a particular time and the urgency of the evil sought to be controlled.
In the case of State of West Bengal v. Anwar Ali, (1952) S.C.R. 289, the Supreme Court held that in order for a classification of persons to pass the test of validity under Article 14 of the Constitution, two conditions must be fulfilled, namely that:
(1)   The classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and
(2)   That differentia must have a rational relation to the object sought to be achieved by the Act.
This principle has been affirmed by the Supreme Court in many subsequent cases. It is not possible to exhaust the circumstances or criteria which may accord a reasonable basis for classification in all cases. It depends on the object of the legislation in view and whatever has a reasonable relation to the basis for the classification of the persons or things coming under the purview of the enactment. For example, in the case of Dhirendra Kumar v. Superintendent and Remembrancer of Legal Affairs, Govt. of W.B.,  AIR 1954 SC 424 : (1955) 1 SCR 2, the Supreme Court had observed that the basis of classification may be geographical.
Thus, a classification of persons on the basis of their geographical locations may be permissible under Article 14. Under the above Regulations made by the RBI under Foreign Exchange Management Act, the RBI has classified citizens of certain countries (namely, Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal or Bhutan) a class separate from citizens of other countries. The citizens of these countries cannot purchase any immovable property in India without the prior permission of the RBI. These countries are neighbouring countries or countries that have been having hostile relations with India. It is possible that citizens of these countries may easily infiltrate into India and stay here illegally. Citizens of a hostile country may not be permitted to purchase an immovable property in India for security purposes also.
I may also point out that Pakistan has been a hostile country to India since its independence. We have fought four wars with Pakistan. It is a well-known fact that the Government agencies of Pakistan are behind many of the terrorist strikes against India. Thus, it will be against the safety of India and its citizens if we allow all Pakistani citizens to own immovable properties in India, without even the requirement of a permission from RBI.
Therefore, there is nothing wrong if the RBI has prohibited the citizens of these countries from purchasing an immovable property in India without its permission. There is no complete ban, and these persons can still purchase property in India after taking RBI permission. Only restriction is that they cannot purchase property without prior permission of RBI. I feel that this cannot be termed discriminatory. This classification is a reasonable classification under Article 14.
I may also mention that Article 19(1)(e) of the Constitution of India provides that all citizens shall have the right to settle in any part of the territory of India. Thus, according to Article 19(1)(e), only a citizen has the right to settle in any part of India. Citizens of other countries do not have any such fundamental right, though they may also be permitted to settle in India in certain circumstances. In fact, I am a citizen of India, but even I am not permitted to buy a property in the state of Jammu and Kashmir. I may not even be allowed to visit certain areas of north-east India without obtaining a permit first. Am I not subjected to this DISCRIMINATION? If I, being a citizen of India, can be subjected to such discrimination, how can Mr. Adnan Sami, who is a citizen of Pakistan, say that he is being discriminated against?
If Adnan Sami is so keen in owning a property in Delhi, why doesn’t he just apply for a clearance by the RBI? The RBI may in fact permit him after verifying all details.

What a Judge should not comment in public

By
Dr. Ashok Dhamija
-
“The judiciary, …, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; …”. These are the wise words of Alexander Hamilton, an American statesman and one of the founding fathers of the United States (in The Federalist Papers : No. 78), though uttered in a slightly different context.
A Judge shall speak only through his judgments. With a view to ensure an independent and respected judiciary, that is essential for the survival of our democracy, on May 7, 1997, the Supreme Court, in its Full Court, adopted the “Restatement of Values of Judicial Life” laying down certain basic values and standards to be observed by Judges of the Supreme Court and the High Courts. One principle restated in this Charter is:
“A Judge is expected to let his judgments speak for themselves. He shall not give interviews to the media.”
Yet another important principle laid down in this Charter reads as under:
“A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.”
Though this Charter is of a voluntary character, it is expected to be obeyed by all Judges in their conduct. The Judicial Standards and Accountability Bill, 2010, which is yet to be enacted by the Parliament, inter alia, proposes to give legal sanctity to the values and standards mentioned in the above Charter. In particular, Clause (f) of Section 3(2) of the above Bill proposes that no Judge shall enter into public debate or express his views in public on political matters, etc.
Well, now consider the speech of the Chief Justice of India, Justice S.H. Kapadia, at an international conference on “Economic Growth and Changes of Corporate Environment in Asia” held in New Delhi on September 22, 2012. Indian Express quotes relevant part of this speech thus:
“Sometime we see certain (TV) programmes and we build our perceptions. How many of us know the basic principle of valuation? Today a number of controversies on valuation are discussed but the basic principle of valuation is that loss is a matter of fact and profit or gain is a matter of opinion. Please apply this test to the controversies going on. I do not want to discuss anything further. Loss is a matter of fact and profit and gain is a matter of opinion. So if you understand these principles, we will be able to judge. Our perceptions will become more sound and we know where the shoe pinches.”
If one had a doubt about what these observations were about, read this Times of India (TOI) article that tells it all in its heading itself: “Coalgate figures may not be accurate, hints Chief Justice of India S H Kapadia”. TOI further goes on to report that Justice Kapadia’s above observations suggested that the recent estimate of the Comptroller and Auditor General of India (CAG) of “windfall gain” of Rs. 186000 crore in the controversial coal block allocations (the so-called “coalgate”) may not be accurate.
It may be pointed out that a whole session of the Parliament was wasted due to coalgate issue since the principal opposition party, the BJP, wanted the Prime Minister to resign on this issue. It is noteworthy that the Prime Minister held the charge of the Coal Ministry for a substantial duration of time when the said coal block allocations were made. The Government has questioned the valuation of the coalgate made by the CAG, and the opposition parties have been taking the Government to task on this issue. Now, if the Chief Justice of India, expresses his views in the presence of the Prime Minister, which tend to suggest that the valuation (made by CAG) may not be accurate, though by not using so many express words, it does raise issues of propriety on the part of the Hon’ble CJI. Can he express his views on such highly controversial political matters, when there are already conflicting and divergent political views on the issue of the said valuation? What happens to the “Restatement of Values of Judicial Life”, referred to above, and also to the general principles requiring restraint on the part of Judges while speaking on such political issues in public?
It is also pertinent to mention that barely a week ago, on September 14, 2012, a bench of Justices R.M. Lodha and A.R. Dave of the Supreme Court had issued a notice to the Central Government to explain if the guidelines were strictly followed in allotting the natural resource to private companies (while allocating the said coal blocks).
Therefore, the aforesaid observations made by Justice Kapadia raise further eyebrows in view of the fact that this matter was already sub-judice with a Bench of the Supreme Court, and therefore, at least the Chief Justice of India, the father figure for the judiciary, should have avoided publicly airing any views on that sub-judice matter (such as valuation).
Well, it is not all. The Hon’ble CJI also praises the recent decision of economic reforms made by the Prime Minister. It is noteworthy that these economic reforms relating to FDI in multi-brand retail, increase in price of diesel, a ceiling of six LPG cylinders, etc., have also been severally criticized not only by all major opposition parties but also by some of the allies of the ruling UPA. Mamata Banerjee’s TMC has, in fact, withdrawn its support from the UPA Government on this issue itself. A “Bharat Bandh” was observed by many political parties on September 20, 2012, and some of the allies of the UPA Government (such as DMK and Samajwadi Party) had also supported this “Bharat Bandh”. Thus, it goes without saying that these economic reforms have also become politically controversial to a great extent, notwithstanding the merits or desirability of these economic reforms (in fact, personally, I may be in favour of these reforms). Given the political controversy on these economic reforms, was it proper for the Hon’ble Chief Justice of India to air his personal views in public?
The Hon’ble CJI also speaks on the issue of “… to attract foreign direct investment to lift the damp sentiment in the market and the manufacturing sector”. Well, with great respect, should the Hon’ble CJI be publicly concerned about the “damp sentiment in the market”? It is pertinent to point out that as Finance Minister in the 1990’s, Dr. Manmohan Singh had himself famously said that he did not lose sleep over market volatility. The observations of Hon’ble CJI, therefore, on lifting the “damp sentiment in the market” are disappointing, to say the least.
It may not be out of place if I refer to another recent speech of Justice Kapadia delivered on August 22, 2012, at the India International Centre in New Delhi on the subject of “The Jurisprudence of Constitutional Structure” (his speech can be heard online here). While referring to the recent Supreme Court judgment in In Re: Ramlila Maidan Incident in which a Bench of Justice B.S. Chauhan and Justice Swatanter Kumar had spoken about the “right to sleep” (in the context of police attack on many innocent participants, who were sleeping at midnight in Ramlila Maidan in New Delhi during a protest organized by Yoga Guru Baba Ramdev), Justice Kapadia said thus:
“Right to life, we have said, includes environmental protection, right to live with dignity. Now we have included right to sleep, where are we going? It is not a criticism. Is it capable of being enforced? When you expand the right, the judge must explore the enforceability.”
Well, without going into the merits or demerits of laying down the right to sleep as a precious right under the Constitution, the only question that I am raising is whether the sitting Chief Justice of India should question (in an extra-judicial forum) the observations made by a sitting Supreme Court Bench in its official judgment? It is a different matter if the Hon’ble CJI refers the matter to a larger Bench on a proper application being made, and then speaks judicially against such judgment while sitting as a member of the larger Bench. It may also perhaps be alright if he criticizes such a judgment after his retirement. But, does it not raise a question of propriety when the sitting CJI speaks on an extra-judicial forum as a critique of a Supreme Court judgment delivered recently by a Bench of the Supreme Court constituted by the CJI himself? What signal does it send to the litigants?
Do we need an answer to these questions? Well, let me quote CJI Kapadia’s own observations on this issue, though these observations were made about two years back when he had taken over newly as the Chief Justice of India. Delivering Justice P.D. Desai memorial lecture on the subject “Constitutional Morality”, Justice Kapadia had then said:
“High Courts and the Supreme Court are courts of principles. The judges should not speak anything beyond the principles of a particular case. Let us not give lectures to the society.”
My Lord had further said at that time: “…We have to work for constitutional principles. I have no right to say what others should do but I have to perform the duty on constitutional principles.”
In the light of his own words of wisdom mentioned above, it is unfortunate that at the fag end of his illustrious career as a Judge and as the CJI, Justice Kapadia has chosen to speak publicly on certain controversial political issues and economic policies.
As pointed out by former CJI Justice R.C. Lahoti, as per the oath required to be administered to a Judge at the time of his appointment under provisions of the Constitution, a judge must bear not only faith but “true faith” and ‘allegiance’ to the Constitution of India. The oath demands of a judge not only belief in constitutional principles but a loyalty and a devotion akin to complete surrender to the constitutional beliefs. [“Canons of Judicial Ethics”, by Justice R.C. Lahoti, (2005) 2 LW (JS) 25]. Thus, it is quite essential that a Judge must not endeavour to go beyond what is required of him by the Constitution while he continues to be a sitting Judge of the Supreme Court.
In an article “Independence of the Judiciary” published with the citation of (1981) 3 SCC (Jour) 15, former Supreme Court Judge, Justice H.R. Khanna stated thus:
“If our Constitution visualises that judiciary should be kept out of politics, we have also to ensure that politics is kept out of the judiciary. Indeed if there is one branch of the State which must steer clear of political controversies and not get involved in or aligned with any of the political personages and parties in their disputes and struggles, it is the judiciary. That all constitutional interpretations, to repeat what I said in Kesavananda Bharati case, have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that Judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so they cannot allow any political ideology or economic theory which may have caught their fancy to colour the decision. The sobering reflection has always to be there that the Constitution is meant not merely for people of their way of thinking but for people of fundamentally differing views.” (emphasis is mine)
Justice Khanna further highlighted the necessity of an impeccable conduct of the Judges by observing as under:
“While resisting any inroads into the independence of judiciary, we have also at the same time to ensure that there is no deviation on the part of those donning judicial robes from the high standards of rectitude and allegiance to values which are the proud legacy of the judiciary. The best guarantee for the independence of the judiciary, I submit, is the impeccable conduct of the Judges themselves.”
This is what was stated by Justice P.B. Gajendragadkar on this issue [“To The Best of My Memory”, by Justice P.B. Gajendragadkar, p. 138]:
“Judges ordinarily must observe certain rules of decorum in their social behaviour. A little isolation and aloofness are the price which one has to pay for being a judge, because a judge can never know which case will come before him and who may be concerned in it. No hard and fast rule can be laid down, in this matter, but some discretion must be exercised.”
An Australian scholar Thomas J.A., has observed that judicial appointment brings with it substantial retirement from the world and a degree of public and social isolation so that the judge could not be said to be compromised or the judge’s impartiality brought into question. [“Judicial Ethics in Australia”, by Thomas J.A., 2nd Ed., 1997, at pp. 93-94].
In an article, “Extra-judicial Comment by Judges”, published in Judicial Studies Institute Journal, Ronan Kennedy observes as under:
“While judges have much of value to contribute to public discourse and debate on the law and the legal system, they should be careful that when they are speaking or writing off the bench, they are both sensible and sensitive. Careless comment leaves the judge open to allegations of bias and, if particularly thoughtless, can lead to very damaging controversy.”
It is no doubt true that judges have a treasure of valuable experience that needs to be shared with others. In fact, the judges have a solemn duty to improve the administration of justice. However, a Judge should speak through his judgments. No doubt, a Judge can also share his rich legal knowledge and experience though speeches and articles in extra-judicial academic forums, however, the topics and contents should be carefully chosen, the manner and means should be carefully chosen. In no case should a sitting Judge express his opinion, howsoever genuine and innocent, on issues that are subject matters of politics and economic policies. These issues should better be left to the politicians, economists and the Government of the day.
Justice Kapadia is considered to be one of the best Judges with an impeccable integrity. This article makes a humble attempt merely to point out that as a sitting Judge, the observations made by him in extra-judicial forums, as referred to above, should perhaps have been better avoided. Nothing more, nothing less.

You may be eligible to become a Supreme Court Judge, BUT…

By
Dr. Ashok Dhamija
-
The recent Supreme Court decision (13 September 2012) in the case of Namit Sharma v. Union of India has been criticized for more than one reason. A decision that examines the constitutional validity of a Parliamentary Act, namely the Right to Information Act, 2005, has been decided in a hurried manner. A writ petition under Article 32 of the Constitution of India was filed before the Supreme Court by the petitioner Namit Sharma and it was first heard on 11 July 2012. Within a short period of about two months, this petition was decided finally (on 13 September 2012) by a Bench of Justice A.K. Patnaik and Justice Swatanter Kumar. Though I could not get it confirmed officially, it is reported that the respondents could not even file their reply in this case till the time of its final disposal. This decision now requires that the Chief Information Commissioner at the Centre or State level shall only be a person who is or has been a Chief Justice of a High Court or a Judge of the Supreme Court of India. Thus, new post-retirement opportunities have been opened for retired Judges of the Supreme Court and High Courts. This will, in fact, lead to further compromising the independence of the judiciary, since more number of Judges would now be seeking post-retirement benefits. After all, justice should not only be done, but should manifestly and undoubtedly seen to be done. Moreover, strangely enough, while the above decision makes a retired Supreme Court Judge eligible for appointment as a Chief Information Commissioner, it ignores the fact that it is not practically possible since the retirement age of the Chief Information Commissioner is 65 years which is the same as that of a Supreme Court Judge!
Furthermore, this decision requires that the Central Information Commission and State Information Commissions shall henceforth work only in Benches of two members each, one of them being a “judicial member” while the other an “expert member”. It may be pointed out that the RTI Act does not contain any such provision for appointment of judicial members; thus, judicial members will now have to be appointed to these Information Commissions. While the Supreme Court observed that a person who is or has been a High Court Judge should be preferred for appointment as Information Commissioners (as judicial member), it has further laid down that a law officer or a lawyer may also be eligible for appointment as a judicial member of an Information Commission provided “he is a person who has practiced law at least for a period of twenty years as on the date of the advertisement”. The decision further requires that such lawyer should also have experience in social work.
So, a lawyer would be eligible to become a judicial member of an Information Commission at the Centre or State level only if he has practiced law at least for 20 years and he should also have experience in social work. Do you know what is the eligibility criterion for becoming a Judge in the Supreme Court?
As per Article 124(3) of the Constitution, a person who has been an Advocate of a High Court (or of two or more such Courts) for at least 10 years, is eligible to be appointed as a Judge in the Supreme Court. Similar experience of 10 years’ practice as an Advocate in a High Court is laid down under Article 217(2) of the Constitution for appointment as a High Court Judge.
Thus, while an Advocate may be eligible to be appointed as a Judge of the Supreme Court or of a High Court after 10 years of practice, he would not be eligible for appointment as a judicial member of the Central Information Commission or of a State Information Commission unless he has completed 20 years’ practice as an Advocate (though, the above decision does not specifically say that the said 20 years’ practice as Advocate should only be in a High Court)! In addition, to be such a judicial member, one must also have the experience in social work. What type of social work? How much experience? At what level of social work? Who will certify such social work? Well, no guidelines are laid down in the above decision on these issues. Isn’t too vague? More so, when in this very decision, the Hon’ble Supreme Court has itself termed the provisions relating to eligibility / disqualification of Information Commissioners as contained in Section 12(5) and 12(6) of the said RTI Act to be vague! So, while the statutory provisions enacted by the Parliament are declared “vague”, the Supreme Court itself introduces certain “vague” provisions!!
Of course, I may clarify that the aforesaid requirements refer only to the “eligibility” for an appointment, and that “suitability” is an altogether different matter.
In case you find it strange that the Supreme Court has mandated that 20 years’ minimum practice as a lawyer is necessary for becoming eligible for appointment as a judicial member in an Information Commission (vis-à-vis a lower requirement of 10 years’ practice for being eligible for appointment as a Supreme Court Judge), you’ll find it even more strange if you read the following.
On more than one occasion, a Supreme Court Judge (who retired last year and who is presently holding a well-known statutory post) was seen telling young Advocates in the Supreme Court in a language something similar to this (there are a few varied versions of this): “Why did you start appearing in the Supreme Court so early? Go to the District Court and practice there for 15 years, and after that practice in the High Court for 10 years, and then only you should practice in Supreme Court”. Let me point out that such sermons were not issued in a lighter vein but in a serious tone, making such young advocate(s) disappear from the court in no time.
So, you need about 20-25 years’ practice as an Advocate before you can even start practicing in the Supreme Court (but you need only 10 years’ practice to become a Supreme Court Judge)! Thankfully, the Hon’ble Judge did not give this direction in a regular judgment in order to make it binding as a law declared under Article 141 of the Constitution. Do I need to point out here that under the provisions of the Advocates Act, 1961, an Advocate of even a single day’s experience is entitled to appear before any court, including the Supreme Court? Of course, there is a system of Advocate-on-Record (AOR) in the Supreme Court (however, one does not need to be an AOR to address the Supreme Court as a Counsel), but you can become even an AOR in the Supreme Court with less than about 5 years’ practice (including compulsory training and AOR examination). The fundamental right to practice any profession that is guaranteed under Article 19(1)(g) of the Constitution, subject to reasonable restrictions laid down in Article 19(6) thereof, also does not hold ground in front of such vagaries in the highest court of the land. Moreover, I would not like to comment on the propriety of scolding a young advocate like this, instead of encouraging him and helping him during his early days and also instead of complimenting him for showing courage to appear before the Supreme Court at an early age. After all, knowledge and talent are not the monopoly of people with grey hair. If at all any proof is needed to prove it, let me just point out that the scientific paper for which Albert Einstein won his Nobel Prize in Physics was published by him at the age of 26 years. It is also noteworthy that not all people can afford a Harish Salve for a hearing in the Supreme Court.
The interpreters of the Constitution, thus, appear to be laying down much more stringent eligibility standards for holding a judicial position than those prescribed by the makers of the Constitution, though it may perhaps be due to the fact that they are oblivious of the relevant provisions in the Constitution. Or else, the makers of the Constitution, perhaps, had more faith in the system.

The illusory right to speedy trial

By
Dr. Ashok Dhamija
-
Look at this. A 23-year old Indian student, Anuj Bidve, was killed near Manchester in U.K. on 26 December 2011. This was an unfortunate incident, no doubt. On 27 July 2012, his killer Kiaran Stapleton, was convicted and sentenced with life imprisonment by a Manchester court, and he will have to serve a minimum of 30 years in prison. So, the trial and conviction took only 7 months (in fact, this includes the period of investigation also).
What happens in India? Take a typical case which is in news nowadays. The then Railway Minister L.N. Mishra was murdered in a bomb blast at Samastipur in Bihar on 2 January 1975. We’re now in 2012. A period of 37 years and still counting. The trial is yet to be completed. One does not know how much more time this trial will take to complete. One of the accused in this case, Ranjan Dwivedi, was 27 years old when this incident took place in 1975, and now he is 64 years old, waiting for the trial to be completed. Don’t forget that this was an important case since a Minister was killed in the incident. And, at the time of this writing, our Supreme Court is yet to decide as to whether a period of 37 years amounts to be a violation of the right to speedy trial. A delay of 37 years in a trial may appear to be a case of gross delay even to a layman. This is irrespective of whether the delay was on account of the accused or the prosecution or the system (who makes the system, by the way?). For, even if the delay is mainly on account of the accused and he has deliberately caused this delay, the question that arises is – why did the judiciary allow him to cause and/or get away with such an inordinate delay? Even if the accused seeks an adjournment, why not give an adjournment of only a day or two, as mandated under Section 309 of the Criminal Procedure Code (which requires day-to-day trial)? So, ultimately, the judiciary has to take the blame. But, it is not to be. The said delay of 37 years does not appear to be a case of gross delay, per se, to the Supreme Court, since the Indian standards on delays are entirely different. So, the reasons for this delay will have to be examined in detail to decide whether it amounted to denial of the right to speedy trial, says the Supreme Court.
It is pertinent to point out that unlike U.K., which does not have a written Constitution, we in India do have a detailed written Constitution. And, one of the most important provisions (perhaps THE most important provision) in this Constitution is the fundamental right to life and personal liberty guaranteed under Article 21 thereof. In several cases, the Supreme Court has interpreted Article 21 to include the right to speedy trial.
In the case of Hussainara Khatoon (I) v. Home Secy., State of Bihar, (1980) 1 SCC 81 (at pp. 88-89), it was held by the Supreme Court that speedy trial is implicit in the broad sweep and content of Article 21 of the Constitution. At p. 88 of SCC, it was held that:
“There is also one other infirmity of the legal and judicial system which is responsible for this gross denial of justice to the undertrial prisoners and that is the notorious delay in disposal of cases. It is a sad reflection on the legal and judicial system that the trial of an accused should not even commence for a long number of years. Even a delay of one year in the commencement of the trial is bad enough: how much worse could it be when the delay is as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice.”
It was further observed (at p. 89 of the SCC) that:
“No procedure which does not ensure a reasonably quick trial can be regarded as “reasonable, fair or just” and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.”
Mark the words. In 1980, the Supreme Court said that “Even a delay of one year in the commencement of the trial is bad enough…” (emphasis is mine). And, now in 2012, the Court is not satisfied with 37 years being a long enough delay, per se!
In the subsequent case of Hussainara Khatoon (IV) v. Home Secy., State of Bihar, (1980) 1 SCC 98  (at p. 107) : 1980 SCC (Cri) 40 : AIR 1979 SC 1369 : 1979 Cri LJ 1045, the Supreme Court reiterated that that speedy trial is an essential ingredient of “reasonable, fair and just” procedure guaranteed by Article 21 and it is the constitutional obligation of the State to device such a procedure as would ensure speedy trial to the accused. It was further observed (at p. 107 of the SCC) that:
“The State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial. The State may have its financial constraints and its priorities in expenditure, but, as pointed out by the Court in Rhem v. Malcolm, 377 F Supp 995: “The law does not permit any government to deprive its citizens of constitutional rights on a plea of poverty”.”
The Hon’ble Supreme Court further observed (at pp. 107-108 of SCC) that:
“The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State. It is also the constitutional obligation of this Court, as the guardian of the fundamental rights of the people, as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by issuing the necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery, setting up new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional Judges and other measures calculated to ensure speedy trial.”
Well said. That was way back in 1980. However, a good 32 years later, in 2012, we’re nowhere near that goal of speedy trial. In fact, the situation has worsened. The aforesaid L.N. Mishra case, which was pending in 1980 for 5 years, continues to be pending even in 2012, after tons of paper have been used in law reports reporting Supreme Court judgments on the right to speedy trial as mentioned in the following paragraphs.
In fact, there are many subsequent cases in which the Supreme Court repeatedly reiterated the principle of speedy trial being a fundamental right. Some of these cases are (this is not an exhaustive list of such cases): State of Bihar v. Uma Shankar Ketriwal, (1981) 1 SCC 75 : 1981 SCC (Cri) 108 : (1981) 2 SCR 402; Kadra Pahadiya v. State of Bihar, (1983) 2 SCC 104 : 1983 SCC (Cri) 361; State of Maharashtra v. Champalal Punjaji Shah, (1981) 3 SCC 610 : 1981 SCC (Cri) 762 : (1982) 1 SCR 299; T.V. Vatheeswaran v. State of T.N., (1983) 2 SCC 68 : 1983 SCC (Cri) 342 : (1983) 2 SCR 348; Sheela Barse v. Union of India, (1986) 3 SCC 632 : 1986 SCC (Cri) 352 : (1986) 3 SCR 562; and Raghubir Singh v. State of Bihar, (1986) 4 SCC 481 : 1986 SCC (Cri) 511 : (1986) 3 SCR 802.
Then again, in the case of Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 : 1992 SCC (Cri) 93 : AIR 1992 SC 1701 : 1992 Cri LJ 2717, while upholding that speedy trial is covered in Article 21 of the Constitution, a Constitution Bench of the Hon’ble Supreme Court observed (at pp. 267-8 of SCC) that:
“Now, can it be said that a law which does not provide for a reasonably prompt investigation, trial and conclusion of a criminal case is fair, just and reasonable? It is both in the interest of the accused as well as the society that a criminal case is concluded soon. If the accused is guilty, he ought to be declared so. Social interest lies in punishing the guilty and exoneration of the innocent but this determination (of guilt or innocence) must be arrived at with reasonable despatch — reasonable in all the circumstances of the case. Since it is the accused who is charged with the offence and is also the person whose life and/or liberty is at peril, it is but fair to say that he has a right to be tried speedily. Correspondingly, it is the obligation of the State to respect and ensure this right. It needs no emphasis to say, the very fact of being accused of a crime is cause for concern. It affects the reputation and the standing of the person among his colleagues and in the society. It is a cause for worry and expense. It is more so, if he is arrested. If it is a serious offence, the man may stand to lose his life, liberty, career and all that he cherishes.”
In the said case, the Hon’ble Supreme Court also observed (at p. 270 of SCC) that right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. The Hon’ble Supreme Court laid down certain guidelines for dealing with the cases where violation of the right of speedy trial is complained of.
In the case of Kartar Singh v. State of Punjab, (1994) 3 SCC 569 (at page 638), the majority decision of a Constitution Bench of the Hon’ble Supreme Court observed that:
“The right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration, to minimise anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself but also there is a societal interest in providing a speedy trial.”
It was further observed by the majority decision (at p. 638 of SCC) that:
“The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averted.”
In the case of P. Ramachandra Rao v. State of Karnataka,(2002) 4 SCC 578, decided by a 7-Judges Constitution Bench of the Hon’ble Supreme Court, it was observed (at page 587 of SCC) that:
“The mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the constitutional courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article 21. Speedy trial, again, would encompass within its sweep all its stages including investigation, inquiry, trial, appeal, revision and retrial — in short everything commencing with an accusation and expiring with the final verdict — the two being respectively the terminus a quo and terminus ad quem — of the journey which an accused must necessarily undertake once faced with an implication. The constitutional philosophy propounded as right to speedy trial has though grown in age by almost two and a half decades, the goal sought to be achieved is yet a far-off peak.”
In this case, the Hon’ble Supreme Court upheld and reaffirmed (at p. 603 of SCC) the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the aforesaid A.R. Antulay case.
In this case, the Hon’ble Supreme Court also observed (at pp. 603-4 of SCC) as under:
“This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary — quantitatively and qualitatively — by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act.”
While reminding all concerned about the aforesaid observations of the Hon’ble Supreme Court in the said case of Hussainara Khatoon (IV) v. Home Secy., State of Bihar, (1980) 1 SCC 98  (at p. 107) : 1980 SCC (Cri) 40 : AIR 1979 SC 1369 : 1979 Cri LJ 1045, the Hon’ble Supreme Court further observed in the said P. Ramachandra Rao case (at p. 604 of SCC) that:
“It is the constitutional obligation of the State to dispense speedy justice, more so in the field of criminal law, and paucity of funds or resources is no defence to denial of right to justice emanating from Articles 21, 19 and 14 and the preamble of the Constitution as also from the directive principles of State policy. It is high time that the Union of India and the various States realize their constitutional obligation and do something concrete in the direction of strengthening the justice delivery system.”
So, the Supreme Court is never found lacking in emphasising the right to speedy trial being an important constitutional right. What is the ground reality, however? There were a total of about 2 crore or 20 million criminal cases (to be precise, 19836287 cases) pending in the lower courts in India as on 30 June 2011, as per the latest quarterly Court News (Vol. VI, Issue No. 3, July-September, 2011) newsletter officially published by the Supreme Court.
So, in spite of so many rhetorical judgments of the Supreme Court declaring the right to speedy trial being an important fundamental right, this right remains an illusory right for millions of accused persons facing criminal trials in India. With respect, I may humbly submit that the Supreme Court has done precious little to enforce this basic fundamental right by issuing binding mandamus (and also ensuring their compliance) to various Governments in India to create sufficient number of courts, or to otherwise ensure compliance of the right to speedy trial so that the trial should be completed latest within one year (barring in some rarest of rare cases wherein the number of witnesses and/or of documents is quite large or for some other exceptional reasons). Otherwise, the declaration of the right to speedy trial being a fundamental right is nothing but a cruel joke in the absence of its enforcement. Is it not said that a legal right is of no meaning in the absence of a legal remedy?

Legal basis of Haj subsidy abolition by Supreme Court

By
Dr. Ashok Dhamija
-
Last week (May 8, 2012), a two-judge bench of the Supreme Court (Justice Aftab Alam and Justice Ranjana Desai) directed the Government of India to gradually reduce and abolish haj subsidy in a period of 10 years. The first impression after reading media reports about this direction appeared to be as if the Supreme Court might have issued this direction keeping in view the secular character of our Constitution. However, a close reading of this Supreme Court decision belies this impression and it is seen that while the actual direction of the Supreme Court is in keeping with the secular character of the Constitution, the reasoning given by it for this direction, in fact, turns out to be rather on the opposite side of what a secular Constitution would require. It is interesting to analyse this decision for this limited purpose (i.e., other issues covered in this decision are not being discussed here). A copy of this decision (Union of India v. Rafique Shikh Bhikan) is being made available for download on Tilak Marg site for the benefit of its esteemed readers.
The Preamble to the Constitution of India clearly states that India is a secular state. The word “secular” did not originally exist in the Preamble when the Constitution came into being in the year 1950. This word was introduced in the Preamble in the year 1976 by the 42nd Constitutional Amendment. However, what was made explicit by this Amendment was already implicit in the Constitution, and it was already well established that India is a secular state under its Constitution. For example, in the case of Kesavananda Bharati  v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461 : 1973 Supp SCR 1, the Supreme Court had already declared that “secularism” is a basic feature of the Constitution.
Now, what does secular mean? This word is not defined in the Constitution. However, the word secular has a specific meaning in the context of Indian Constitution. It means the state has no official religion. It means state neutrality in all religious matters. The state will not identify itself with any particular religion. All religions enjoy the same protection under the Constitution without any favour or discrimination. The state is required to treat all religions and religious groups equally. It cannot show favour to a particular religion. Moreover, under Articles 25 to 28 of the Constitution, certain fundamental rights relating to freedom of religion have been conferred not only on all citizens but also on all persons in India.
It is in this background that one has to consider the question whether the Government of a secular India can spend public money on subsidising pilgrimage of a particular religion. More on this a slightly later.
Let us first consider a few facts of the aforesaid Rafique Shikh Bhikan case decided by the Supreme Court. It is mentioned in the said decision that during 2011, about 125,000 pilgrims from India went for Haj, and the total Haj subsidy was Rs. 685 crore. In the year 2011, each Haj pilgrim was charged Rs. 16,000/- for the to-and-fro air fare for Jeddah (in Saudi Arabia). On the other hand, the Government actually spent an amount of Rs. 58,800/- for each such air fare. However, the normal air fare should have been Rs. 25,000/-, but due to some stringent regulations imposed by the concerned authorities of Saudi Arabia, the actual air fare turned out to be Rs. 58,800/-. Thus, there are two parts of the subsidy provided by the Government on the air fare to each Haj pilgrim.
The Supreme Court observed that the amount of Rs. 16,000/- charged towards air fare from each Haj pilgrim was slightly less than 2/3rd of the otherwise normal fare of Rs. 25,000/-. The court observed that there was no justification for “charging from the pilgrims an amount that is much lower than even the normal air fare for a return journey to Jeddah”.
Now, speaking about the other part of the subsidy (Rs. 58,000/- minusRs. 25,000/-), the Supreme Court observed as under:
“As regards the difference between the normal air fare and increased fare, we appreciate the intent of the Government of India to provide subsidy to cover the additional burden resulting from the stringent regulation imposed by the Saudi Arabian Authorities. We also take note of the fact that the grant of subsidy has been found to be constitutionally valid by this Court. We are also not oblivious of the fact that in many other purely religious events there are direct and indirect deployment of state funds and state resources. Nevertheless, we are of the view that Hajj subsidy is something that is best done away with.” This Court has no claim to speak on behalf of all the Muslims of the country and it will be presumptuous for us to try to tell the Muslims what is for them a good or bad religious practice. Nevertheless, we have no doubt that a very large majority of Muslims applying to the Haj Committee for going to Hajj would not be aware of the economics of their pilgrimage and if all the facts are made known a good many of the pilgrims would not be very comfortable in the knowledge that their Hajj is funded to a substantial extent by the Government. We remind ourselves that the holy Quran in verse 97 in Surah 3, Al-e-Imran ordains as under:
“ 97. In it are manifest signs (for example), the Maqam (place) of Ibrahim (Abraham); whosoever enters it, he attains security. And Hajj (pilgrimage to Makkah) to the House (Ka’bah) is a duty that mankind owes to Allah, those who can afford the expenses (for one’s conveyance, provision and residence); and whoever disbelieves [i.e. denies Hajj (pilgrimage to Makkah), then he is a disbeliever of Allah], then Allah stands not in need of any of the Alamin (mankind, jinn and all that exists).”
We, therefore, direct the Central Government to progressively reduce the amount of subsidy so as to completely eliminate it within a period of 10 years from today. The subsidy money may be more profitably used for upliftment of the community in education and other indices of social development.” [emphasis is as found in the said judgment itself]
So, it is clear from the above extracts that abolition of Haj subsidy by the Supreme Court is not to uphold the principle of secularism. On the other hand, it is on the ground that the holy Quran mandates that only those Muslims should go for Haj pilgrimage who can afford the expenses for their conveyance, provision and residence. Therefore, instead of being based on the “secular” character of the Constitution, this Supreme Court decision is in fact based on the religious text of a particular religion. I’m forced to ask myself a question, how can the highest court of a secular country nullify an administrative action merely on the ground of religious text of a particular religion? Do the religious scriptures govern the Supreme Court? Further, while the Supreme Court mentioned that it “has no claim to speak on behalf of all the Muslims of the country”, what in fact has been done by it is to apply the religious text contained in the holy Quran. The judgment is completely silent as to which law is violated by Haj subsidy. On the other hand, the Supreme Court mentioned that the grant of Haj subsidy had already been found to be constitutionally valid by that Court. So, how can it set aside the executive policy of the Haj subsidy in such a situation? If it did not violate any law, how this subsidy came to be abolished? Was it not on the ground ONLY of the religious text contained in the holy Quran? If so, is it permissible for the Court to do so? With great respect, I’m not convinced with the reasoning given by the Supreme Court, to say the least.
Moreover, once the Supreme Court comes to a conclusion that the Haj subsidy is a bad policy and needs to be set aside, can it allow the same to continue for another 10 years by phasing it out only in instalments? Once the Haj subsidy is considered to be against the religious text of the holy Quran, and this subsidy is abolished by the Court, how can it continue the same for 10 years, only to be phased out slowly? Does it not mean that a Haj pilgrim will continue to receive the Haj subsidy even though the holy Quran does not permit it? Is it being permitted only because most of the Haj pilgrims are not aware of the religious text in this regard, as the Supreme Court itself mentioned in this judgment, “…we have no doubt that a very large majority of Muslims applying to the Haj Committee for going to Hajj would not be aware of the economics of their pilgrimage and if all the facts are made known a good many of the pilgrims would not be very comfortable in the knowledge that their Hajj is funded to a substantial extent by the Government”.
More astonishing is the fact that having directed abolition of the Haj subsidy, in the same breath, the Supreme Court further suggested (directed?) to the Government as under:
“The subsidy money may be more profitably used for upliftment of the community in education and other indices of social development” (emphasis is supplied by me).
What does “the community” mean here? Does it mean “the Muslim community” or does it mean the society as a whole (i.e., ALL communities)? If it means “the Muslim community” (as the context implies), what power does the Supreme Court have under the Constitution to tell the Government to spend the amount of Rs. 685 crore on the upliftment of a particular community only, when the Constitution speaks of a SECULAR state? Is it constitutionally valid? What is the legal basis or the ground(s) or the reason(s) on which the Supreme Court came to the conclusion that this amount needs to be spent only on a particular community? In the absence of any such legal basis, can the Supreme Court decide policy issues which are in the exclusive domain of the executive?
In my respectful submission, these problems arise when the courts start deriving inspiration from religious texts instead of from the provisions of the Constitution. So, while the end result may be alright, the basis on which the end result was achieved does not reveal a happy situation since instead of applying the principle of secularism found in the Constitution, religious text has been applied by the highest court of a secular country to set aside an administrative policy. It sets a bad precedent.
Before I conclude, let me point out that as noted above, the Supreme Court has mentioned in the aforesaid decision that the grant of Haj subsidy had already been found to be constitutionally valid by that Court. Well, the reference here appears to be to the Supreme Court decision in the case of Prafull Goradia v. Union of India, (2011) 2 SCC 568, which was decided recently on January 28, 2011, by a bench of Justice Markandey Katju and Justice Gyan Sudha Misra. In my respectful opinion, this is another unsatisfactory judgment, and I’ll try to make detailed submissions in this regard in a separate article which will be placed on this site shortly, due to which I’m not going into the details of that judgment here to avoid duplicity.

Supreme Court decision on tinted glass car films clarified

By
Dr. Ashok Dhamija
-
On April 27, 2012, the Supreme Court banned the use of black films on the car windows / windscreens and clarified the use of tinted glasses in cars. There is a lot of confusion about the exact nature of the order passed by the Supreme Court in this regard. Does it completely ban any kind of blank films being used on the car windows? Or, does it ban merely those black films that block Visual Light Transmission (VLT) beyond the permissible limit with the black films within those limits remaining permissible? The newspaper reports (see one here) are confusing in this regard. An effort is made in this article to clarify the Supreme Court order on this issue.

 

The aforesaid order was passed by a 3-Judge bench of the Supreme Court [Chief Justice S.H. Kapadia, Justice A.K. Patnaik, and Justice Swatanter Kumar] in the case of Avishek Goenka v. Union of India [Writ Petition (Civil) No. 265 of 2011]. You can download this order from here.

 

Let me point out at the outset itself that the Supreme Court has banned all kinds of black films on car windows. This means that you can’t have any type of film attached or affixed or pasted to any of your car windows irrespective of how much percentage of light is blocked or permitted. Why do the newspapers reports then mention something like this “…if your car has black film on the front and rear windscreens that blocks light by more than 30% and the tint on the side window panes is more than 50%, then you could be in contempt of court in addition to being prosecuted as per the rules provided under the Motor Vehicles Act”?

 

In fact, the decision has been wrongly interpreted by the media. The above-mentioned limits of 30% and 50% on the front/rear windscreens and side windows, respectively, are in fact the maximum permissible limits for the tinted glass that comes with the car when you buy it from the manufacturer. In so far as the black films (of any shades, grey or fully black) are concerned, they are completely banned irrespective of the percentage of visual light transmission (VLT) blocked or allowed by them.

 

Have a look at the following extract from the said Supreme Court order (para 17):
“… On the plain reading of the Rule, it is clear that car must have safety glass having VLT at the time of manufacturing 70 per cent for windscreen and 50 per cent for side windows. It should be so maintained in that condition thereafter. In other words, the Rule not impliedly, but specifically, prohibits alteration of such VLT by any means subsequent to its manufacturing. How and what will be a “safety glass” has been explained in Explanation to Rule 100. The Explanation while defining ‘laminated safety glass’ makes it clear that two or more pieces of glass held together by an intervening layers of plastic materials so that the glass is held together in the event of impact. The Rule and the explanation do not contemplate or give any leeway to the manufacturer or user of the vehicle to, in any manner, tamper with the VLT. The Rule and the IS only specify the VLT of the glass itself.”
[emphasis and underlining supplied by me; “IS” in the above para stands for “Indian Standards”]
Then, in para 18 of the said order, it is clarified that:
“… Thus, on the plain reading of the Rule and the IS standards, use of black films of any density is impermissible.”
Also, look at the following observations by the Supreme Court (para 23):
“…In light of the above discussion, we have no hesitation in holding that use of black films or any other material upon safety glass, windscreen and side windows is impermissible. In terms of Rule 100(2), 70 per cent and 50 per cent VLT standard are relatable to the manufacture of the safety glasses for the windshields (front and rear) and the side windows respectively. Use of films or any other material upon the windscreen or the side windows is impermissible in law. It is the VLT of the safety glass without any additional material being pasted upon the safety glasses which must conform with manufacture specifications.”
Finally, in para 27 of the said order, the Supreme Court gave the following directions:
“For the reasons afore-stated, we prohibit the use of black films of any VLT percentage or any other material upon the safety glasses, windscreens (front and rear) and side glasses of all vehicles throughout the country. … The directions contained in this judgment shall become operative and enforceable with effect from 4th May, 2012.”
Thus, it is clear that what is banned by the Supreme Court is all types of films on the windscreens / windows / glasses of the vehicles, irrespective of the percentage of the visual light permitted or blocked. Another important fact is that it is also not permissible to use “any other material” (such as curtains, for example) on the car windows, etc. Thus, it would not be possible to cover the car windows by any other material also, and the ban is not just for the black films.

 

However, the Supreme Court has permitted use of black films in the official cars of the VIPs and VVIPs (ostensibly for security purposes) to be authorised by the competent authorities as mentioned the said order. The expression “VIPs” has not been defined in the said order, leaving it to be flexible and to be decided by the concerned authorities in individual cases. Therefore, the ban on the black films on car windows will apply to commoners like you and me and not to the VIPs. Accordingly, if you’re a commoner and don’t have any chance to get classified as a VIP, remove whatever type of black film (of any shade) is pasted on your car windows.

 

Update (12 July 2012): Times of India reports that the Supreme Court has agreed to hear a review petition against its earlier ban order on the tint films in vehicles. This review petition is likely to be heard on 19 July 2012. Further details will be posted here in due course.

 

Update (03 August 2012): The Supreme Court has directed the Director Generals of Police and Commissioners of Police of all states and union territories to strictly comply with the aforesaid SC judgment on the use of tinted glasses in vehicles, or else face contempt of court action. The court directed the police forces in the country to charge sheet / challan all the offending vehicles which continue to use tinted glasses in violation of the law. In addition to that, it also directed the police to take immediate measures to remove tinted materials pasted on safety glasses in the vehicles. You can download this order of the Supreme Court from here.

Lawyers loosing faith in law? Need for reforms

By
Dr. Ashok Dhamija
-

[Originally written in January, 2007]
If this is not a case of the lawyers loosing faith in law, then what it is? I am referring to the incident in the premises of a Ghaziabad court where the prime accused in the Nithari serial killings case, Moninder Singh Pandher and Surendra Koli, were attacked by the lawyers and angry locals, when these two accused persons were produced by the CBI at the court for an extension of their remand and were being escorted by the police to a lock up nearby. It is reported that Moninder Singh Pandher was punched, kicked and pulled by his hair by the enraged crowd which wanted these accused persons to be handed over to the public. Mohinder fainted after he was beaten up.
Dealing with law, day in and day out, who can know better than the lawyers as to what could be possible outcome in such a case? Is it the frustration of the lawyer community with the non-functioning criminal justice system in the country? Or, is it too-much-knowledge about the intricacies of the criminal justice system which gives them a clue about the possible outcome of the case?
Unlike the pre-independence days when the lawyers were at the forefronts of the independence struggle, the society does not look too kindly at the law profession of late, though the culprit – the delays in the legal system – may be due to the sheer insufficiency of the judicial strength. Somehow, many battles fought by lawyers inside and outside the courts for protecting the rights of the people even after the independence, especially during the seventies, have been lost in the high-decibel noise of the legal delays, in the non-functioning criminal justice system or in the misdeeds of a few unscrupulous ones in the lawyers community. ThisGhaziabadincident has again put the lawyers at the head of a public ire, though for very wrong reasons.
Of late, there have been many such incidents when the public has shown its anger against the accused persons. But, the lawyers leading the public in attacking the accused persons, and that too in a matter which did not involve the lawyers directly, is a rare scene. In any case, it is a barometer of public ire against such ghastly acts committed for years in Nithari as well as against the system for having failed to take any action and may be against the system for the possible expected outcome in future.
Though the attack on the accused persons definitely deserves to be condemned whole-heartedly, one should not be too naïve to ignore the message behind this attack to the effect that there is some serious lacuna in the criminal justice system over which even the lawyers are frustrated.
There can be no doubt that every accused should get a fair trial. In fact, just last week, in an article [Of lawyers representing terrorists], while dealing with a controversial statement made by Cully Stimson, deputy assistant secretary of defense for detainee affairs in the U.S. against the major U.S. law firms that have helped represent terrorists / detainees at Guantanamo Bay, I had the occasion to mention that representation of an accused by an advocate is a basic principle of the criminal justice system in India. Article 22 of the Indian Constitution guarantees it as a fundamental right, clause (1) of which declares as under:
“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.” (emphasis is mine.)
In addition, Section 303 of the Criminal Procedure Code, 1973, which deals with the procedures to be followed during criminal trials inIndia, lays down this further statutory right of an accused:
“Right of person against whom proceedings are instituted to be defended. Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.”
Therefore, the right of an accused, irrespective of the seriousness of the offence committed by him, to get represented by an advocate of his choice is guaranteed under the Indian laws as a fundamental right under the Constitution as well as a statutory right under the laws relating to criminal trials. In addition, there are a large number of detailed provisions laying down the various rights of an accused and the procedure which have to be followed during a criminal prosecution.
Thus, every accused does have a right to get a fair trial. It is for the competent court to decide about the guilt of the accused. The problem is when will the court(s) decide? After 20 years or after 30 years? And, how fair this trial will be? It is not only the accused person but also the society, which has a stake in a fair and speedy trial.
And, how do you feel when people of criminal background continue as your law-makers and administrators, meanwhile, for several years while they are waiting for that fair trial to be completed? Or that they continue to enjoy the fruits of their misdeeds? What impact will all this have on the people? Frustration?
Is it not a wake-up call then for some serious legal reforms, particularly in the area of the criminal justice system?

Of lawyers representing terrorists

By
Dr. Ashok Dhamija
-

[Originally written in January, 2007]
What about lawyers representing terrorists? What should the other clients of such advocates do? Well, we have an advice from theU.S. on this matter.
Speaking about the major U.S. law firms that have helped represent detainees at Guantanamo Bay, this is what Cully Stimson, deputy assistant secretary of defense for detainee affairs in the U.S. had to say in a radio interview with Federal News Radio (the interview can be heard from here):
“I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”

Observing that “MOST AMERICANS understand that legal representation for the accused is one of the core principles of the American way”, the Washington Post in a scathing editorial went on to say as under:
“But it’s offensive — shocking, to use his word — that Mr. Stimson, a lawyer, would argue that law firms are doing anything other than upholding the highest ethical traditions of the bar by taking on the most unpopular of defendants. It’s shocking that he would seemingly encourage the firms’ corporate clients to pressure them to drop this work. And it’s shocking — though perhaps not surprising — that this is the person the administration has chosen to oversee detainee policy atGuantanamo.”
Like the U.S., in Indiatoo, representation of an accused by an advocate is a basic principle of the criminal justice system. In fact, Article 22 of the Indian Constitution guarantees it as a fundamental right. Clause (1) of Article 22 declares as under:
“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.” (emphasis is mine.)
In addition, Section 303 of the Criminal Procedure Code, 1973, which deals with the procedures to be followed during criminal trials inIndia, lays down this further statutory right of an accused:
“Right of person against whom proceedings are instituted to be defended. Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.”
Therefore, the right of an accused, irrespective of whether he is a terrorist or otherwise, to get represented by an advocate of his choice is guaranteed under the Indian laws as a fundamental right under the Constitution as well as a statutory right under the laws relating to criminal trials.
It is pertinent to recall that an advocate of the stature of Ram Jethmalani, who was earlier the Law Minister in the Government of India, and even as a sitting Member of Parliament (M.P.), had represented the terrorists involved in the Parliament attack case of India inspite of the fact that they were even alleged to have had links with Pakistan. So, a sitting Member of the Parliament (and a former Law Minister ofIndia) taking up the case of a terrorist who was alleged to be involved in an attack the Parliament itself! This signifies the extent to which the right of the accused to get represented by an advocate of his choice is guaranteed under the Indian Constitution and other laws.
Coming back to the issue of the aforesaid controversial statement of the U.S. deputy assistant secretary of defense, Cully Stimson, one of the lawyers representing such “terrorist” accused persons, Anant Raut (happens to be of Indian origin), an associate in the Washington office of Weil, Gotshal & Manges LLP, a New York-based, international firm with 1,100 lawyers, did file a rejoinder by writing an open letter to Cully Stimson. This open letter can be accessed from here.
While the spirit behind this open letter deserves to be appreciated, the language thereof appears to be more defensive. Anant Raut writes, “Mr. Stimson, I don’t defend “terrorists.” I’m representing five guys who were held or are being held in Guantánamo without ever being charged with a crime, some of them for nearly five years.”. It clearly shows Raut on defensive trying to explain that he is not representing terrorists.
And, look at this further extract from this open letter, “And, lest there be any doubt, Mr. Stimson, we are not receiving any money for this. My firm’s work is pro bono.”. An effort to again be on defensive to show that he (Anant Raut or his law firm) was acting pro bono and was not receiving any money or professional fee from those alleged “terrorists”?
Have a look at this too, “…If the bulk of the detainees are guilty of nothing but being in the wrong place at the wrong time, if there’s no evidence that some of them did the things of which the government has accused them, then it would mean that we locked innocent people in a hole for five years. It would mean not only that our government wrongfully imprisoned these men but that the rest of us stood idly by as they did it. …”. Again, an attempt to show that Anant Raut was defending only the innocent persons…!
What these extracts from the aforesaid open letter show? That the lawyer (Anant Raut) is not defending the terrorists, that he is not accepting any professional fee for defending them, that there might be some innocent persons in Guantánamo too. What would have happened if such persons were actually terrorists – alleged to have committed the actual terrorist attacks? Secondly, is it wrong to accept professional fee from such terrorists? Thirdly, what if such persons did not appear to be innocent – would lawyers have not taken their cases in theU.S.? Does it not show that lawyers in theU.S.are a bit defensive of taking a case of a person if he actually was a terrorist?
Well, I am leaving all these questions for the judgment of the readers. But, to me, it does appear that the lawyers in theU.S.are on the defensive for having taken up the cases of the so-called terrorists locked up in Guantánamo. And, I can appreciate that given the stigma that attaches with such a lawyer. Some lawyers do it pro bono, some do it for their personal convictions, some might be doing it as a professional duty as a lawyer, some might be doing it just for money! But yet, my intention is not to take the credit away from the lawyers taking up cases of the innocent people who might be just put behind bars branded as terrorists without evidence of any sort.

Corporate Democracy

By
Dr. Ashok Dhamija
-

[This article was originally published in the leading law journal All India Reporter in the year 1996 with the citation AIR 1996 Journal 130.]
Democracy has become well-established in political institutions all over the world. With the increasing importance of economic institutions, which are coming more and more within the ambit of private sector with liberalisation of national economies, it is equally significant to introduce democracy in such institutions as well. It is in this context that democratisation of company administration becomes essential, in order to ensure that the affairs of a company are conducted in accordance with the wishes of the majority of its members. The Companies Act, 1956, specifically contains provisions to this effect. In fact, for certain matters relating to the administration of a company, which are of special or vital significance, there are provisions requiring passing of special resolutions, wherein a resolution is treated to have been passed only when the votes cast in favour of the resolution are not less than three times the number of votes cast against the resolution.
Read the full article in a PDF file from the All India Reporter.

Empowering District Courts to enforce Fundamental Rights

By
Dr. Ashok Dhamija
-

[This article was originally published in the leading law journal All India Reporter (AIR) – May 2003 issue.]
This article makes a humble attempt to make out a case for enactment of a law in terms of article 32(3) of the Constitution for empowering courts, such as the District Courts, at least in a limited manner, to exercise within their local jurisdiction the power to issue directions or orders or writs for the enforcement of the fundamental rights.
Fundamental rights constitute a very important part of the Constitution of India. They have been given the pride of place in the Constitution. They are embodied in Part III of the Constitution and they may be classified thus: (i) right to equality; (ii) right to freedom of speech and expression, of peaceful assembly, to form associations or unions, to move freely throughout the territory of India, to reside and settle in any part of India, to practice any profession or to carry out any trade or business; (iii) right of life and liberty; (iv) right against exploitation; (v) right to freedom of religion; (vi) cultural and educational rights; (vii) right to constitutional remedies. Certain rights of the minorities and of the backward communities have also been characterised as fundamental rights under the Constitution.
Fundamental rights are also equated with what have traditionally been known as natural rights. They represent the primordial rights essential for the development of human personality. They enable a man to chalk out his own life in the manner he likes best.
Fundamental rights are made justiciable under articles 32 and 226 of the Constitution. A violation of a fundamental right can be remedied by approaching the concerned High Court under article 226 or by directly approaching the Supreme Court under article 32. It is pertinent to point out that the right to approach the Supreme Court under article 32 is itself a fundamental right and it guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights. Thus, it may be seen that if the fundamental right of a person is violated, he has two remedies – either to approach the High Court or to approach the Supreme Court. It may be appropriate to point out that in many circumstances, the violation of a fundamental right may also entail contravention of some other legal provisions enabling the person concerned to approach some other competent judicial authority for an alternative remedy.
There is only one seat of the Supreme Court at New Delhi. There are 18 High Courts with a total of 33 benches, including the Circuit Benches. In addition to the aforesaid writ jurisdiction, the Supreme Court and the High Courts have various other jurisdictions as well, such as the appellate jurisdiction. Some of the High Courts, such as the Bombay High Court, also have the original civil jurisdiction.
A very large number of cases are pending in the Supreme Court and the various High Courts. As on October 31, 2001, a total of 35,57,637 cases were pending in the High Courts and 21,995 cases in the Supreme Court.[1]
It cannot be over-emphasised that India is a vast country with an area of 3,287,590 sq km – the maximum length and breadth being more than 3000 km each. Its population is about 1027 million as per the 2001 census, constituting about 15% of the humanity. It is the seventh largest in size and the second most populous country in the world. Thus, having only a limited number of courts (i.e., the High Courts and the Supreme Court) and that too at a few places only, for the enforcement of the fundamental rights of such a huge populace spread over a nation of the size of a sub-continent, is nothing but a mockery of the guarantee of fundamental rights. While the Supreme Court and the High Court have contributed immensely to the cause of the fundamental rights, the number of these courts, and the locations thereof, is just not sufficient for the purpose.
In fact, even if we consider the judiciary as a whole, the ratio of judges to the population in India is among the poorest in the world. Based on 1971 census, the judge-population-ratio in India was only 10.5 judges per million population while this ratio was 41.6 in Australia, 50.9 in England, 75.2 in Canada and 107 in United States.[2] The situation must be definitely worse today in 2003, as our population has almost doubled since 1971. And, this ratio becomes even more meagre when we consider that only the High Courts and the Supreme Court can handle the matters relating to the violations of the fundamental rights. In fact, in these courts also, not all judges hear such matters, as they have to exercise their powers under other jurisdictions as well, such as the appellate jurisdiction. There are a total of about 568 High Court Judges and 26 Supreme Court Judges in India. Thus, if we consider only the judges in the High Courts and the Supreme Court, then we have a ratio of only 1 judge to 1.72 million population for enforcement of the fundamental rights! By no stretch of imagination, can such a ratio be said to be sufficient. A large number of 35,57,637 pending cases in the High Courts and 21,995 pending cases in the Supreme Court, as noted above, is a testimony of the said poor ratio of judges to population.
Though no systematic study has been made in this regard, as per an approximate study made by this author on the basis of the writ petitions filed in the Bombay High Court as seen from the Cause Lists of that Court, and also from the decided cases of the Supreme Court and other High Courts reported in various journals, a substantial number of the writ petitions filed in various High Courts and the Supreme Court are from the cities where a bench of a High Court or the Supreme Court is situated. It is well known that only a minor portion of our population resides in cities while the major chunk of the population is in villages. And, here, from out of the urban population also, we are talking of only the population of those cities where a bench of a High Court or Supreme Court is situated. It can be nobody’s case that there are no violations of fundamental rights of people residing in villages or interior parts of the nation. Enforcement of fundamental rights of people residing in villages is still a distant dream even after 53 years of the Constitution coming into being!
Moreover, it is a fact that, in a poor country like ours, most people find it extremely difficult to approach even the local courts for the enforcement of their various rights such as property rights, or to seek remedies for offences against their body and property. How can then we expect such poor people to approach a distantly located High Court for enforcement of their fundamental rights? Though article 32 guarantees the right to approach the Supreme Court for enforcement of the fundamental rights, how many people can afford that in our country? No doubt then that enforcement of fundamental rights remains an empty provision for most of our people, it being a luxury only for the better sections of the society or for urban people who reside closer to a High Court or the Supreme Court.
In addition, lack of good infrastructure, poor but costly transportation, costly lodging / boarding facilities at the seats of the superior courts, costly legal services, inordinate delays in proceedings, high illiteracy, etc. act as further disincentives for people from distant places to visit a High Court or the Supreme Court for the enforcement of their fundamental rights.
On the other hand, the scope of the fundamental rights is ever-increasing in view of the increased interactions between the state and the people due to the omnipresence of the state instrumentalities today. Up to the 19th century, the concept of the state was a laissez faire state which was concerned mainly with matters such as defence, law & order, administration of justice, and a few tax collections. However, in the 21st century today, the concept of the state is that of a welfare state, wherein the state is concerned with almost all sorts of human activities. A modern state performs such wide ranging functions as a protector, a provider, an entrepreneur, a controller and an arbiter.
State acts as an active instrument of socio-economic policy; regulates individual life and freedom; provides several benefits to citizens; controls and regulates private enterprise through various laws such as IDR Act, Companies Act, Labour Laws, Import and Exports (Control) Act, etc.
State is involved in running buses, railways, airways, waterways, distribution of milk, electricity, gas, water, telecom, irrigation, mining, several industries, etc. It provides public health, education, and various other services. It is involved in business such as insurance, banking, security trading, etc. It is involved in housing, town planning, country planning, highways, planning of social and economic life, licensing, slum schemes, plans of urban and rural life, control and distribution of resources. It exercises discretionary powers and regulatory powers. It adjudicates over disputes between state and individuals through tribunals.
In fact, the role of the state has increased so much today that the state’s intervention in human activities extends to all walks of life and throughout the life, starting from maternity home to the graveyard, in as much as the birth of a child entails a duty of its registration with the state authorities and the death of a person may require several formalities to be completed, including inter alia registration thereof, obtaining of a death certificate, succession certificate, etc. And, of course, during the lifetime, a person has to continuously interact with the state on a day-to-day basis, nay on a minute-to-minute basis.
Thus, the increasing state activism has led to the state acquiring more and more powers to interfere in almost all facets of human life. Moreover, there is an increasing tendency of the executive or the administration wing of the state getting more and more powers.
Due to the aforesaid ever-increasing role of the state, people come into contact with various instrumentalities of the state at every step in their life. Due to such increased interactions between the state and the people, the chances of the violation of the fundamental rights of the people also increase proportionately. Hence the need for a much broader system for the enforcement of fundamental rights.
It is in this context that, due to the reasons mentioned above, there is a case for enactment of a law under article 32(3) of our Constitution for empowering other courts, such as the District Courts, at least in a limited manner, to exercise within their local jurisdiction the power to issue directions or orders or writs for the enforcement of the fundamental rights.
Article 32 of the Constitution is reproduced hereunder for this purpose for a ready reference:
“32. Remedies for enforcement of rights conferred by this Part.–
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus,prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this article.”
It is suggested that the Parliament may enact a law under the said article 32(3) to empower the District Courts in India to exercise the said powers to issue directions or orders or writs for the enforcement of the fundamental rights.
A period of 53 years has passed since our Constitution came into being. Most of the basic principles of law relating to the fundamental rights have already been settled by the Supreme Court and the various High Courts. These well-settled principles of law can be applied by the District Courts, while deciding questions of facts in matters relating to the violation of fundamental rights. Questions of law, arising out of such matters, can be framed and referred by the District Courts to the High Courts in a manner similar in which it is done under section 113 of the Code of Civil Procedure, 1908.
District Judges are experienced judicial officers. They are already empowered under various laws to adjudicate upon various civil / criminal matters, with powers to impose all punishments prescribed by law (including the death penalty – though subject to confirmation by the High Court), and with power to grant various civil remedies. They enjoy considerable independence in matters of performance of their duties and are not under the executive influence. Therefore, they are well-equipped to adjudicate upon the matters relating to the violations of the fundamental rights.
Today, we have special courts and adjudicatory bodies dealing with matters such as consumers, family matters, etc., to ensure speedy, economic and easy justice for the masses. We have a large number of Tribunals set up under laws made under Article 323A or 323B of the Constitution (e.g., the Central Administrative Tribunal), dealing with various matters which were hitherto dealt with only by the High Courts. So, why can we not empower the District Courts in matter of enforcement of fundamental rights in order to take justice to the doorsteps of the people? In any case, this is what the founding fathers of the constitution had envisaged.
Some of the advantages of giving such powers to the District Courts are as under:
  • The cost of hiring an advocate in the District Courts will be much less than that in the High Courts or the Supreme Court.
  • The transport and other expenses will also be less in the District Courts.
  • The District Courts are much more accessible than the limited number of the High Courts and the Supreme Court.
  • The burden on the High Courts and the Supreme Court will be reduced greatly, thereby enabling them to handle the more important matters.
  • The important cases relating to the fundamental rights will still go to the High Courts and the Supreme Court in the form of reference/appeal, especially at the policy level.
  • Better implementation and enforcement of the fundamental rights in as much as poorer people and distantly located people will also be in a position to approach the District Courts for that purpose.
  • The real advantages of the judicial activism will be available even to the poorer and distantly located sections of the society as well.
  • This will ensure justice at the doorsteps of the people, thereby enhancing respect for law and justice.
  • Better realisation of the objective of guaranteeing the fundamental rights in the Constitution.
  • It will help in making the administration more responsive to the people and thereby in reducing corruption in the country.
  • It will help in realising the cherished dreams of the makers of the Constitution who gave the pride of place to the fundamental rights in the Constitution of India.
The founding fathers of our constitution were wise enough to provide for a provision such as the said article 32(3) to cater to the future needs of the society. Let us ensure that the said provision does not remain a redundant and dead letter in the Constitution. Let the justice be taken to the doorsteps of the people in the important field of enforcement of the fundamental rights. 
[1] As per the 85th report on “Law’s delays: Arrears in courts” of the Standing Committee on Home Affairs, as quoted in Frontline magazine in its March 02-15, 2002 issue.
[2] As quoted by the Supreme Court in the latest case of P. Ramachandra Rao v. State of Karnataka, 2002 AIR SCW 1841 (para 20).
1...131132133Page 132 of 133
Copyright (C) 2011-2016 - Tilak Marg