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Decriminalization of Company Law

By
Rachit Garg
-
0

This article has been written by Vedanta Pai Diploma in General Corporate Practice: Transactions, Governance and Disputes from LawSikho.

Introduction

The attempt to decriminalize business law in India is not new. This process dates back to the liberalisation of the Indian economy in 1991. This is a part of the continuous efforts of the Government of India to improve the ease of doing business and unclog the burdened criminal justice system. The first commercial law that was decriminalised was the Imports and Exports (Control) Act, 1947; it was further replaced by the Foreign Trade (Development and Regulation) Act, 1992, which decriminalised most of the offences relating to imports and exports. Over the years, the government has  filed  numerous criminal cases for violation of provision under the Companies Act, 2013 (“the Act”).  Of almost 40,000 cases filed, more than 39000 did not involve  lapses of serious nature. The criminal courts were unnecessarily burdened and could not pay attention to matters of serious interest.

Brief Overview  

Ever since the onset of the Companies Act, 2013, the various government authorities in India have proposed and implemented various changes,  to enhance the ease of doing business for companies In India. One of the characteristics of the earlier  legislation was a criminal sanction for minor compliance requirements, which are unfortunately also carried onto this Act. Given this, sixteen offences were recategorized into civil defaults according to the enactment of the Companies (Amendment) Act, 2019 (“the C.A.A. 2019”) by the Indian legislature. Soon after the C.A.A. 2019 was notified, the government proposed further reforms in this direction as part of the Companies (Amendment) Bill, 2020 (the “C.A.B. 2020”), according to which it further decriminalizes fifty-four compoundable offences under the Act. C.A.B. 2020 is based on the recommendation of the committee headed by Mr Injeti Srinivas i.e., Secretary of the Ministry of Corporate Affairs (“M.C.A”) under the Company Law Committee Report published on November 18, 2019 (“the Committee”). The report of the committee was limited to compoundable offences. Section 441 of the Act defines compoundable offences as those that are not punishable with imprisonment only or punishable with imprisonment and fine. C.A.B. 2020 was tabled in the lower house of the Indian Parliament on March 17, 2020, although this session was adjourned sine die on March 23, 2020, consequent to the COVID-19 pandemic.

In-House adjudication system 

The In-House adjudication mechanism (“I.A.M. System”) as given under section 454 of the Act, is one of the key amendments introduced by CAA 2019 concerning compoundable offences. The I.A.M. System is an online platform set up by the M.C.A to deal with certain offences, hence partially substituting the process of appeal and adjudicating before the National Company Law Tribunal (“NCLT”). The Adjudicating Officer (“AO”) has the power to settle offences by charging a certain penalty from the companies, officers in default or both. The I.A.M. System includes in its scope offences that attract a penalty of up to INR 2.5 million and include technical non-compliances such as accepting directorship beyond a specified limit, sending notices to shareholders, issuing of shares at a discount and so on. This entire process is conducted through an online platform and only in exceptional circumstances allows for physical attendance. Orders from an A.O. are appealable to the Regional Director. This has helped unburden the various benches of the NCLT, as previously the defaulting company and its employees would require filing applications of compounding before NCLT to escape criminal prosecution. As per data collected from the Registrars of Companies, more than 1,000 company law default cases have already been disposed of by the A.O. during the last three financial years (2018-19, 2019-20 and 2020-21) in a summary manner.

Rationale

Proving a criminal offence requires a higher threshold of the standard of proof i.e., beyond reasonable doubt while in a civil offence one simply requires a preponderance of probability. It often comes into question if criminal law is efficient enough in dealing with corporate misconduct. Some experts argue that a civil penalty will defeat the deterrent effect of this legislation as businesses will factor such civil penalties as the cost of running a business. In this context, it is advisable to strike a balance between civil and criminal sanctions. The underlying principle proposed under C.A.B. 2020 is objective determination versus a subjective assessment. Procedural defaults are void of any intention (mens rea) and hence don’t warrant long drawn adjudication. Such procedural violations could be recategorized as civil offences as they can be assessed objectively and rectified by payment of penalty.

The amendments proposed by C.A.B. 2020 to the Act in respect of decriminalization of compoundable offences can be listed as follows:

Categorizing of compoundable offences 

The committee has categorised compoundable offences into eight categories as follows-

  1. Omissions in respect of maintenance of particular records in the registered office of the company.
  2. Non-disclosure of interest of persons to the company, which in turn vitiates the record of the company.
  3.  Violations of substantial nature that may affect the company’s present value or are contrary to the public interest or are detrimental to the stakeholders.
  4.  Defaults that are in violation of liquidation proceedings.
  5. Defaults that  are made punishable through an omnibus clause.
  6. Non-compliance of orders of authorities, such as NCLT or Registrar of Companies (“R.O.C.”)
  7. Technical defaults relating to the intimation of certain information by filing forms with the R.O.C. or in sending notices to stakeholders.
  8. Defaults related to certain corporate governance norms.

Scheme of decimalization of offences 

The Commission has proposed the following scheme –

  1. The internal adjudication mechanism will objectively determine Twenty-three (23) offences that include simple compliance issues.
  2. Seven (7) offences that can be dealt with by specialised legislation to be omitted from the Act.
  3. Eleven (11) offences that don’t fit the above specifications must be dealt with through an alternate sanction mechanism.
  4.   Five offences (5) that are to be determined subjectively but not grave will be punishable only with a fine.
  5. Twenty (20) offences that are serious and may involve matters of substantive non-compliance requiring detailed adjudication, no changes are suggested by the Commission.

Avoiding multiplicity of legislations

The Committee report highlights the nuisance created by multiple legislation dealing with an offence. The committee has suggested the omission of offences from the Act dealt by specialised legislation. C.A.B. 2020 has proposed removing offences related to liquidation from the Act. Rather, such non-compliances are to be resolved according to the Insolvency and Bankruptcy Code, 2016 (“I.B.C.”). I.B.C. is emerging as a comprehensive code in matters of insolvency, liquidation and bankruptcy. Further, it is recommended that defaults dealt with by the NCLT should be omitted from the Act. Accordingly, omission of nine offences which relate to non-compliance with orders of the NCLT has been proposed i.e., matters relating to-

  1. rectification of registers of security holders;
  2. matters relating to winding-up of companies;
  3. variation of rights of shareholders;
  4. payment of interest and redemption of debentures;
  5. default in the publication of NCLT order relating to the reduction of share capital.

Rationalisation of fines

C.A.B. 2020 proposes reducing the quantum of fines associated with 22 offences. This amendment is concerning provisions relating to maintenance of records by the companies, for example. non-compliance with the procedural requirements for the transfer of securities, failure to maintain registers of members, debenture holders and other security holders, failure to notify the R.O.C. of alteration of share capital and so on. The nature of monetary levy to be changed from a criminal “fine” to a civil “penalty. The committee has proposed an increase in the penalty for three offences where the punishment of imprisonment is foregone. These offences relate to non-compliances with provisions relating to-

  1. contribution toward Corporate Social Responsibility (“C.S.R.”) Fund;
  2. related party transaction;
  3. submission of material data.

C.A.B. 2020 has distinguished between the liability of a company and its officers and determined that the financial liability of an officer-in-default should be less than that of the company.

Decriminalization of key provisions such as-

  1. Buy-back of Securities;
  2. Significant beneficial owner;
  3. Corporate social responsibility;
  4. Related Party Transactions;
  5. Public offer and offer documents:
  6. Financial statement of companies.

Fresh Start Scheme 

Governmental authorities have been implementing measures such as the Fresh Start Scheme that are consistent with the spirit of C.A.B. 2020. This scheme was rolled out by the M.C.A. for a limited time i.e., is between the dates of April 1, 2020, and September 30, 2020, which provided relief to companies by allowing them to correct their defaults related to the filing of documents without incurring any fine. To avail such condonation of delay in filing of various statutory forms, the companies have to simply make a corrective filing together with payment of one-time filing fee. This scheme is also available in cases where the R.O.C. has already launched a prosecution against a company or has sufficient cause to do so. More than four lakh companies used the Companies Fresh Start Scheme to rectify filing defaults and avoid penalties under the Act. This, in turn, has helped create an atmosphere of trust.

Critical evaluation

The committee has deliberated such changes to the Act within two months and three meetings. Objectively this is not adequate to make serious decisions regarding the decriminalization of offences. C.A.B. 2020 has been proposed less than a year after C.A.A. 2019 was amended, hence not providing  enough time for effective changes to be made and percolate to the beneficiaries. C.A.B. 2020 is also a sharp turn from some of the amendments made by C.A.A. 2019, for example, Provisions relating to C.S.R. under section 135 of the Act where no such penalty was prescribed initially, although under C.A.A. 2019, a provision for imprisonment up to 3 years and a fine was introduced. Now under C.A.B. 2020, it is proposed to decriminalize this offence. C.A.A. 2019 introduced section 454A which provides that if the offender has committed the same default within three years from the date of the order imposing a penalty, then the law provides for twice the penalty for every subsequent default. This may not be adequate punishment for a repeat offender, rather a criminal liability will be better suited. Further, it is astounding how the committee has recommended that Section 8 companies, specifically incorporated for charity and other social purposes, be only monetarily fined for non-compliance with provisions under the Act. Certain offences which affect public interest have been wrongfully decriminalised, for example, matters related to the prospectus or related party transactions. The AO and the appellate authority of the In-House adjudicating system are non-judicial persons appointed by the M.C.A., hence making this system subject to bias.

Conclusion 

The changes proposed by C.A.B. 2020 will definitely benefit companies by making it easier for them to do business. This will, in turn, encourage Foreign Direct Investment as well as budding entrepreneurs. The decriminalization of offences will help protect the goodwill of companies, attracting civil liabilities instead of criminal sanctions. The cost of such civil penalties may be absorbed as part of running a business in the ordinary course. C.A.B. 2020 proposed a reduction of penalties for officers in default of provisions of the Act. This relaxation could encourage executives to take an active part in the daily matters of the companies without being exposed to the risk of criminal prosecution. However, this legislation mustn’t become a toothless tiger and hence, an active balance needs to be struck between incentivising companies and the deterrent effect of the legislation. Substantive compliances should not be taken lightly, otherwise, the very purpose of the Act will be defeated.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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Difference between contract of indemnity and contract of guarantee

By
Sneha Mahawar
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0
contract

This article is authored by Nidhi Bajaj, of Guru Nanak Dev University, Punjab. This article will take through the various aspects that distinguish a contract of indemnity from a contract of guarantee. 

This article has been published by Sneha Mahawar.

Introduction

Contract of guarantee and contract of indemnity perform similar commercial functions in providing compensation to the creditor for failure of a third party to perform their obligation. However, there are some major differences between the two. In this article, the author will talk about the differences between the contract of indemnity and contract of guarantee along with relevant legal provisions of the Indian Contract Act, 1872.

Meaning

Indemnity

The dictionary meaning of the term ‘indemnity’ is protection against future loss. Indemnity is the protection against loss in the form of a promise to pay for loss of money, goods, etc. It is security against or compensation for loss incurred.

According to Halsbury, indemnity refers to an express or implied contract that protects a person who has entered or is going to enter into a contract or incur any other duty from loss, irrespective of the default incurred by a third person.

As per the Oxford Dictionary of Law, indemnity is an agreement by one person to pay to another, a sum that is owed or which may be owed, to him by a third person. It is not conditional on the third person defaulting on the payment.

Guarantee

Guarantee enables a person to get a loan, to get goods on credit, etc. Guarantee means to give surety or assume responsibility. It is an agreement to answer for the debt of another in case he makes default. 

The Oxford Dictionary of Law defines guarantee as a secondary agreement in which a person (guarantor) is liable for a debt or default of another (principal debtor) who is the party primarily liable for the debt. A guarantor who has paid out on his guarantee has a right to be indemnified by the principal debtor.

Contract of Indemnity

Chapter VIII of the Indian Contract Act, 1872 contains the legal provisions governing a contract of indemnity and a contract of guarantee in India.

Section 124 : Contract of indemnity

Section 124 of the Act defines a contract of indemnity as a contract wherein one party promises to save the other from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person. 

A contract of indemnity can provide protection against loss caused—

  1. By the conduct of promisor, or
  2. By the conduct of any other person.

Under Indian law, a contract of indemnity can only provide for losses caused by human agency whereas in England, it includes a promise to save the other person from loss caused whether by acts of promisor or of any other person or any other event like fire, accident, etc. 

Indemnifier

The person who makes a promise to indemnify against the loss or to make good the loss (promisor) is called an indemnifier.

Indemnity-holder

The person in whose favour such a promise to indemnify is made (promisee) is called indemnity-holder.

For example, Anil enters into a contract with Swapnil to indemnify him against the consequences of any proceedings which Mrinal may initiate against Swapnil in respect of a certain sum of Rs. 2000/-. In this contract, Anil is the indemnifier and Swapnil is the indemnity-holder.

Main features

  1. It involves two parties i.e. promisor being the indemnifier and promisee being the indemnity holder.
  2. Object of the contract of indemnity is to protect from a loss.
  3. As per the Indian Contract Act, the contract of indemnity must be to indemnify against a loss caused by any act or conduct of the promisor himself or by the conduct of any other person.
  4. It is not contingent on the default of some third person.

What are the rights of an indemnity holder

Section 125 of the Act covers ‘Rights of indemnity-holder when sued’. This Section provides for the right of the indemnity holder to recover the damages and costs that he may have been compelled to pay in a suit filed against him, in a case where the indemnity-holder has promised such indemnity, i.e., where a contract of indemnity to that effect exists. The rights of the indemnity holder are-

  1. Right to recover from the promisor, the damages that he may be compelled to pay in any suit in respect of any matter to which the promise to indemnify applies.
  2. Right to recover from the promisor all the costs that he may be compelled to pay in any suit, provided—
  1. that he did not contravene any of the orders of the promisor in filing or defending such suit, and
  2. that he acted in a manner as would have been prudent for him to act in the absence of any such contract of indemnity, or 
  3. that the promisor had authorised him to file or defend such a suit.
  4. Right to recover from the promisor all such sums that he paid under the terms of any compromise of any such suit, provided-
  1. the compromise was not contrary to orders of the promisor, and
  2. such compromise is one as the promisee would have made while acting in a prudent manner even if such contract of indemnity did not exist, or
  3. that the promisor had authorised the promisee to compromise the suit.

When liability commences

A pertinent question that arises with regard to a contract of indemnity is, ‘when does the liability to indemnify commence/arise’. Originally, under English law, the rule was that the indemnity holder cannot recover the amount unless he had suffered actual loss i.e. ‘you must be damnified before you can claim to be indemnified’. However, this position of the law changed. In Richardson Re, Ex parte the Governors of St. Thomas’s Hospital (1911), it was held that indemnity is not necessarily given by repayment after payment, but it requires that the party to be indemnified shall never have to pay. This principle was followed by the Calcutta High Court in Osman Jamal & Sons Ltd. v. Gopal Purshottam (1928). 

As far as Indian position is concerned, the Bombay High Court in Gajanan Moreshwar v. Moreshwar Madan (1942), held that the equitable principle applicable in England shall be applicable in India too and therefore, where the indemnity holder has incurred a liability and that liability is absolute, he is entitled to call upon the indemnifier to save him from that liability and pay it off. 

Contract of guarantee

Section 126 of the Indian Contract Act defines the term contract of guarantee, surety, principal debtor and creditor. The purpose behind a contract of guarantee is to give additional security to the creditor that his money will be paid back by the surety if the debtor makes a default.

Contract of guarantee : Section 126

A contract of guarantee is a contract to perform the promise or discharge the liability of a third person in case of his default. 

The contract of guarantee has three parties involved, namely, the principal debtor, the creditor, and the surety.

Surety

The person who gives the guarantee is called the Surety. The liability of the surety is secondary, i.e., he has to pay only if the principal debtor fails to discharge his obligation to pay.

Principal debtor

The person in respect of whose default the guarantee is given is the Principal debtor. The principal debtor has the primary liability to pay.

Creditor

The person to whom the guarantee is given is called the creditor.

For example, Anil orders certain goods of the value of Rs. 2000/- from Swapnil on credit. Mrinal guarantees that, if Anil will not pay for the goods, she will. This is a contract of guarantee. Here, Rs. 2000 is the principal debt, Anil is the principal debtor, Mrinal is surety and Swapnil is the creditor.

Main features 

  1. A contract of guarantee may be oral or written: According to Section 126, a contract of guarantee may be oral or in writing. However, under English law, for a contract of guarantee to be valid, it has to be in writing and signed. 
  2. There must be a principal debt: The existence of a principal debt is necessary for a contract of guarantee. If there is no principal debt, then there is no existing obligation to pay. As a result of the absence of such obligation to pay, there cannot be any promise/guarantee. If there is a promise to pay for compensating some loss without there being any principal debt, such a contract will become a contract of indemnity. 
  3. Contract of guarantee is tripartite in nature: There being three parties involved in a contract of guarantee, three contracts take place in a contract of guarantee-
  • The principal debtor promises to make payment to the creditor.
  • Surety undertakes to pay the creditor in event of default of payment by the principal debtor.
  • An implied promise by the principal debtor in favour of surety to indemnify him in case he discharges the liability of the principal debtor.
  1. There is a promise to pay upon default of payment by the debtor: In a contract of guarantee, the surety’s promise to pay is dependent on the default of the debtor i.e. surety pays only when the debtor defaults. 
  2. The consideration is the benefit to the debtor: As per Section 127, anything done or promise made for the benefit of the principal debtor may be a sufficient consideration to the surety for giving the guarantee. For example, Anil sells and delivers certain goods worth Rs. 5000 to Swapnil. Mrinal afterward requests Anil to refrain from suing Swapnil for a year and promises that if he does so, she will pay for the goods in default of payment by Swapnil. Anil agrees. The forbearance by Anil to sue is of benefit to Swapnil (the debtor) and that constitutes sufficient consideration for Mrinal (surety) for giving the guarantee.
  3. The consent of the surety should not have been obtained by misrepresentation or concealment of material facts: Section 142 of the ICA, 1872 provides that a guarantee obtained using misrepresentation made by the creditor or with his knowledge or assent, concerning a material part of the transaction is invalid.

Section 143 provides that a guarantee obtained by the creditor by keeping silent as to some material circumstance is also invalid.

Difference between contract of indemnity and contract of guarantee

BASIS OF DISTINCTIONCONTRACT OF INDEMNITYCONTRACT OF GUARANTEE
Parties There are two parties in a contract of indemnity, namely the indemnifier and the indemnity holder.There are three parties in a contract of guarantee, namely the principal debtor, the creditor, and the surety. 
No. of contractsIt consists of only one contract between the indemnifier and the indemnity holder. The indemnifier promises to indemnify the indemnified/indemnity holder in event of a certain loss.It consists of three contracts-A contract between principal debtor and creditor wherein the debtor promises to perform his obligation/make payment. The contract between surety and creditor wherein the surety promises to perform the aforesaid obligation/make the payment if the principal debtor makes a default. An implied contract between the surety and the principal debtor. The principal debtor bounds himself to indemnify the surety for the sum that he has paid under the guarantee undertaken by him.
3. Nature of liabilityThe liability of the indemnifier is primary. The liability in a contract of indemnity is contingent in the sense that it may or may not arise.The liability of the surety is a secondary one, i.e., his obligation to pay arises only when the principal debtor defaults. Liability in a contract of guarantee is continuing in the sense that once the guarantee has been acted upon, the liability of the surety automatically arises. However, the said liability remains in suspended animation until the debtor makes default.
Default of third personThe liability of an indemnifier is not conditional on the default of somebody else. For example, Mrinal promises the shopkeeper to pay, by telling him that, “Let Anil have the goods, I will be your paymaster”. This is a contract of indemnity as the promise to pay by Mrinal is not conditional on default by Anil.Liability of surety is conditional on the default of the principal debtor. For example, Anil buys goods from a seller and Mrinal tells the seller that if Anil doesn’t pay you, I will. This is a contract of guarantee. Thus, the liability of Mrinal is conditional on non-payment by Anil.
Principal debtNo requirement of the principal debt.Principal debt is necessary. (refer to the previous example)
Whether subsequent recovery is possibleOnce the indemnifier indemnifies the indemnity holder, he cannot recover that amount from anybody else.After the surety has made the payment, he steps into the shoes of the creditor and can recover the sums paid by him from the principal debtor.
Whether a contract has to be in writing or can be oral as well In India, contracts of indemnity may be either oral or written. In India, a contract of guarantee may be either oral or written. 

Conclusion

Both the contract of indemnity and contract of guarantee are similar in the sense that they provide protection against loss. However, as mentioned above, there is an important distinction between the two. Whether a contract is a contract of indemnity or a contract of guarantee is a question of construction in each case. One of the ways to identify such a contract might be the description of the agreement as to whether it is named as a contract of guarantee or indemnity and if those terms are mentioned in the contract a few times or more. However, that cannot be considered conclusive enough. Another way might be to see if under the contract, the liability of a person exists irrespective of the default of the principal debtor or where such liability is for a greater amount than the amount payable by principal debtor. In that case, the contract may be construed as a contract of indemnity. Thus, it will depend on a case to case basis and while analysing the facts/agreement, one must keep in mind the relevant points of distinction between the two concepts.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

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Choice for consumers : RERA or Consumer Protection Act

By
Abanti Bose
-
0
RERA,2017
Image Source- https://bit.ly/2qeDgTG/

This article is written by Shalini Singh, pursuing Certificate Course in Real Estate Laws from LawSikho. The article has been edited by Ruchika Mohapatra (Associate, LawSikho) and Arundhati Das (Intern at LawSikho).

This article has been published by Abanti Bose.

Introduction

Since the RERA Act has been enacted, the stance that the consumer forum has no right to deal with the complaints of home buyers has often been taken up as a legal argument in various cases. Often this question is raised before the courts as to whether the complainant can claim the benefits under the Consumer Protection Act if there is an alternative remedy available. The courts have often tried to offer an affirmative response to such questions. However, the court’s stance was not clear enough as far as the home buyers are concerned, because it was argued that RERA is special legislation to control the important matters, the remedy is often sought only as per the provisions of the Act.

Supreme Court’s ruling

The Supreme court has answered the above-mentioned question in a judgment dated 2nd November 2020, passed by the Supreme Court of India in the case of M/s Imperia Structures Ltd v Anil Patni & Another (Civil Appeal No. 3581-3590 of 2020), the Supreme Court held that the redressal mechanism/provisions under the Real Estate (Regulation and Development) Act 2016 (RERA) do not act as a bar to complaints under the Consumer Protection Act 1986 (CP Act). The principles laid down in this judgment by the Supreme Court, find a place in a range of earlier series of decisions passed by various High Courts as well as the National Consumer Disputes Redressal Commission (NCDRC) which has stated that allottees/homebuyers are well within their rights to avail remedies under the CP Act as well as RERA and even the Insolvency and Bankruptcy Code 2016 (IBC).

This judgment has definitely explained that the allottees have the freedom to choose among RERA and the Consumer Forum to litigate for their rights in a land project. As the land business keeps on wrestling with the uncommon difficulties introduced by steadily developing liquidity emergencies and the current pandemic, the postponed ventures should plan for longer fights in court by virtue of conceivable commencement of new cases before RERA or the Consumer Forum. This judgment also paves a path for ending the dominance of developers over buyers by virtue of money power in litigation matters.

In order to make a better decision, the author has provided detailed differences between both acts.

Difference between Consumer Court and RERA

Consumer CourtRERA
Only registered purchasers and allottees can file complaints.
Registered agency/purchaser here means ‘any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force.
On the other hand, any of the agencies reflects the unregistered association which cannot come within Section 2(7)(i)[1] of the act hence cannot file a complaint.		Aggrieved persons can file complaints under Section 31 (1) of the RERA Act.
Section 31. (1) – Any aggrieved person may file a complaint with the Authority or the adjudicating officer, as the case may be, for any violation or contravention of the provisions of this Act or the rules and regulations made thereunder against any promoter allottee or real estate agent, as the case may be. For the purpose of this subsection, persons shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force. The word person is defined under Section 2 (zg)[2].
A complaint before Consumer Court needs to be filed on plain paper with documentary evidence.There is a specified format for filing a complaint before RERA. Every state’s RERA official website will have its complaint section and the buyer has to fill in the requisite details in the form prescribed.
In the case of a consumer complaint, you have to file the complaint depending on the pecuniary limits. District commission can entertain complaints upto Rs. 1 crore and state commissions can entertain complaints only between Rs 1 crore and up to Rs 10 crore;
In case the value of the property is more than INR 10 crore then you will have to approach NCDRC.		You can file a complaint before the regulatory authority of the state where your property is situated. There are no pecuniary limits while filing a claim under RERA.
The Central Consumer Protection Authority (CCPA) has an investigation wing, headed by a Director-General, which may conduct an inquiry or investigation into consumer law violations, as given under Section 15 (1)[3] of Consumer Protection Act 2019.
The CCPA has been granted wide powers to take suo-moto actions, recall products, order reimbursement of the price of goods/services, cancel licenses and file class-action suits if a consumer complaint affects more than 1 (one) individual.		Investigations can be conducted on a complaint by a buyer or suo moto against the builder. Section 35(1)[4] of the Act empowers the Real Estate Regulatory Authority to make an inquiry and investigate in relation to the promoter, allottee or the real estate agent, as the case may be. Section 35(1) of the Act provides that the Real Estate Regulatory Authority can either suo moto or on a complaint, initiate any inquiry and investigation into allegations against the promoter, allottee or the real estate agent, as the case may be. It is at the discretion of the Real Estate Regulatory Authority to appoint one or more persons to make an inquiry in relation to the affairs of the promoter, allottee or the real estate agent, as the case may be.
Under Section 41, any person aggrieved by an order made by the District Commission may prefer an appeal against such order to the State Commission on the grounds of facts or law within a period of forty-five days from the date of the order, in such form and manner, as may be prescribed.
Under Section 51 (1) Any person aggrieved by an order made by the State Commission in the exercise of its powers conferred by sub-clause (i) or (ii) of clause (a) of sub-section (1) of Section 47 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed: Provided that the National Commission shall not entertain the appeal after the expiry of the said period of thirty days unless it is satisfied that there was sufficient cause for not filing it within that period.
This implies that the finality of orders is faster under Consumer Court.		Under Section 43(5)[5] of the RERA Act, 2016 any person aggrieved by an order passed by the Real Estate Regulatory Authority (RERA) can file an appeal. Such an appeal must state the grounds of fact and law on the basis of which the RERA order is challenged.
As stated in Section 44(2)[6] of the Act, the Appeal must be heard and disposed of within sixty days of filing. If this time limit is exceeded, the Real Estate Appellate Tribunal (REAT) will have to give reasons to justify the delay. Thus, the Real Estate Appellate Tribunal is under a statutory duty to dispose of cases in a time-bound manner and not keep them pending.
Under Section 58(1), any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court, within a period of sixty days from the date of communication of the decision or order of the Appellate Tribunal, to him, on any one or more of the grounds specified in Section 100 of the Code of Civil Procedure, 1908:Provided that the High Court may entertain the appeal after the expiry of the said period of sixty days if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

Conclusion

Accordingly, it can be said from the court’s ruling that this judgment has clarified the legal position of the option of choosing a forum for starting grievances against the builder must lie with the homebuyers and they must be at liberty in order to select between both RERA and/or the Consumer Forum. Thus, now the homebuyers cannot be forced to select a forum of adjudication as per the suitability of the builders. A balanced approach has been adopted to identify the interest of the homebuyers and balance it with the promoter’s interests. However, through the recent amendment of the Consumer Protection Act, the monetary limits to approach the consumer forum has been raised from the previous amount, which in a way provides a big relief to Builders in restricting the homebuyers to approaching the consumer forum frequently. Although the efficiency of RERA may seem to be challenged, it is merely an illusion as there lie other exclusive jurisdictions with RERA. Thus, in a nutshell, the RERA regime continues to be a force to be reckoned with and promises to deliver stellar services in the real estate space and in its domain and jurisdiction, in close coordination with the Consumer Protection Act and other laws in force.

Reference

1.https://main.sci.gov.in/supremecourt/2019/9796/9796_2019_34_1502_24555_Judgement_02-Nov-2020.pdf

2. https://www.indiacode.nic.in/bitstream/123456789/2158/1/A2016_16.pdf

3. National Seeds Corporation Limited vs. M. Madhusudhan Reddy and Another; Secretary, Thirumurugan Cooperative Agricultural Credit Society vs. M. Lalitha

4. Pioneer Urban Land and Infrastructure Ltd & Anr v Union of India & Ors SCC Online SC 100

5. https://www.indiacode.nic.in/bitstream/123456789/2158/1/A2016_16.pdf

6. http://ncdrc.nic.in/bare_acts/Consumer%20Protection%20Act-1986.html

7. https://www.mca.gov.in/Ministry/pdf/TheInsolvencyandBankruptcyofIndia.pdf

8. https://www.aaptaxlaw.com/real-estate-act-2016/section-31-real-estate-act-2016-filing-of-complaints-with-the-authority-or-the-adjudicating-officer-section-31-the-real-estate-regulation-and-development-act-2016.html#:~:text=(1)%20Any%20aggrieved%20person%20may,as%20the%20case%20may%20be

9. https://www.mca.gov.in/Ministry/pdf/Companies_Act_1956_13jun2011.pdf

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Dhirendra Nath Sen v. Rajat Kanti Bhadra : case study

By
Rachit Garg
-
0

This article is written by Khushi Sharma pursuing B.A. LLB from IIMT, IP University (Trainee Associate, Blog iPleaders). This article deals with the analysis of a leading case on Defamation. 

Introduction 

The present case of Dhirendra Nath Sen v. Rajat Kanti is a case of defamation. The case hereby deals with the quashing of proceedings under Section 500 of the Indian Penal Code, 1860 pursuing before Sri K.K. Roy, Magistrate, First Class, Cooch Behar, West Bengal. The said case has the equivalent citation of AIR 1970 Cal 216, 1970 CriLJ 662 and was decided on 29th August 1969. 

Defamation is considered as an act of defaming or injuring others reputations by publishing or announcing the defamed statement to a third party. The statement published or announced might be untrue and unjust, and may publicly harm the injured party. The foremost essential of defamation is that the defamatory statement must be said in such a way that it injures the pride of the said person in front of others or publicly. Law for defamation allows a person to sue any other person for causing injury or damage to their reputation. Defamation may be a civil (tort) or a criminal charge and can be instituted under Section 499 and 500 IPC.  

Facts of the case 

Herein (Occurrence of the event), the Complainant Rajat Kanti Bhadra filed a case under Section 500 of the IPC against the two accused i.e., Sookomal Kanti Ghosh, the editor of the Bengali Daily “Jugantar” and Dhirendra Nath Sen who is the printer and the publisher of the same. The paper published the impugned statement on 7th December 1965 and was served by P.T.I and U.N.I with the sub-heading Shoulmari Sadhu expressed that “The Foreign Minister states that the Sadhu of Shoulmari who calls himself Subhas Chandra Bose, is not Netaji and the Government has not the least doubt about this fact that he is not” (translated to English). The said publication was widely circulated in West Bengal including Cooch Behar thus involving the above jurisdiction of the Court. Furious to which, the Complainant instituted the case under Section 500 of the IPC as he described himself as a member of the Shoulmari Ashram. 

The learned Magistrate after receiving the complaint sent the same for a judicial enquiry to be reported to Sri I. Sundas, Magistrate, 1st Class, Cooch Behar. After the examination of the complaint and the four witnesses, it was observed that cognizance of the offence under Section 500 cannot be taken by the court as the said complaint does not fall under the provisions of Section 198 of the Code of Criminal Procedure, 1973. Further, the court stated that the Complainant is not the person aggrieved under the meaning of this section and so dismissed the complaint under Section 203 of CrPC, 1973 which states that after examining the complaint if the Magistrate is of the opinion that the complaint does not form sufficient grounds to be instituted then the complaint can be dismissed on grounds of insufficiency. 

After the dismissal of the complaint, the Complainant further raised a revisional application under Section 436 of the CrPC to the learned Sessions Judge for setting aside the dismissal of the complaint and holding a fresh enquiry for the matter. The said revision application, approved by Sri H.N. Sen, Sessions Judge, Cooch Behar, was sent then for judicial enquiry by Sri G. C. Chatterjee, Magistrate, 2nd Class, Cooch Behar. Four witnesses were then examined and finally, the report was submitted on 26th June 1967 expressing that there was a prima facie case against the accused persons under Section 500 of the IPC. The accused were then finally summoned by the court.

Issues raised

  1. Whether the present case is maintainable in law and on merits?
  2. Whether the case falls under the provisions of Section 500 of the IPC?

Contention of the parties 

Submissions of the Defendant (by Advocate Mr. Ajit Kumar Dutt) (Accused – Petitioners)

The counsel for Defendant presented a three-fold submission to the court which was as follows – 

  1. The first submission of the Counsel was on law rooting the initiation of the case, that the cognizance taken by the Hon’ble Court has not been proper and without jurisdiction, as the present case is in non-conformance with the provisions of Section 198 of CrPC as the Complainant does not come under the “persons aggrieved” in the scope of the Section. Furthermore, the Counsel contended that the statement was meant for the Sadhu of Shoulmari only. 
  2. The second submission by the Counsel expresses that if we, for once consider that the impugned publication includes the defamation of Ashram as well thus touching the Complainant, the Complaint still would not be considered under Section 500 of the IPC as Ashram is an indeterminate body. 
  3. The third submission of the Counsel includes facts i.e. merits that the statements published are not defamatory and the said proceedings are also not maintainable due to the absence of the two news agencies who served the news items. Without the presence of the two other co-accused the case instituted does not stand maintainable. 

Submission of the petitioner (by Advocate Arun Kumar Jana) 

The Counsel for the Complainant contended the following submissions – 

  1. The first submission of the Counsel on behalf of the Complainant that the “Court lacks the jurisdiction and no cognizance lies under Section 198 CrPC” are the facts that need to be determined in the proceedings and the quashing of the same is premature. Referring to the first submission by the opposite counsel, the Counsel on behalf of the Complainant expressed that there is no conformance to Section 198 because the alleged defamation is against the head of the institution hence it touches all the members of the Ashram and his disciples. The impugned publication has lowered the esteem of the Ashram which involves their head and disciples hence involving the Complainant under “some persons aggrieved” and thus making the case with conformance of Section 198 CrPC, 1973. 
  2. The Counsel highlighted that the second contention of the opposite Counsel terms Ashram as an indeterminate body. The impugned publication defames the head of the institution viz. His Holiness Srimat Saradanandiee thereby touched his disciples including the Complainant too. 
  3. The Counsel also highlighted that whether the statement was derogatory enough to be considered into Defamation is premature and cannot be said without a full-fledged trial.

Judgement 

After hearing the contentions of both the parties, the Court raised specific points from the arguments of both the Counsels. The Court was of the view that as the Counsel of the accused-petitioners mentioned that the impugned publication has in no way particularly highlighted and injured the Complainant and does not come under the ambit of “some aggrieved persons” stands correct as a person cannot put the law in motion only after feeling injured by a statement which is made in a generalised manner. This portrays a clear non-conformance to Section 198 of CrPC, 1973 to which the proceeding should have been vitiated and quashed at an early stage. Further, the court also highlighted the averments made by the counsel of the accused-petitioners that the Ashram is an indeterminate body. Supporting to which the Court expressed that Ashram being an unincorporated body or an association of individuals, the Complainants as its member cannot bring any cause of action under the law. 

The Court points out the averment of the Counsel for the Complainant mentioned that the Counsel expressed that the defamation complained, in this case, is to the head of the institution and not to an indeterminate body thus touching all the members of the Ashram as well and thus making the complaint a part of “some persons aggrieved”. The Court giving informative insights clashing the above-mentioned submission cited that in reference with the Halsbury’s Laws of England (3rd Edn.: Edited by Viscount Simonds) vol. 24, page 5, paragraph 6 “A class of persons cannot be defamed as a class, nor can an individual be defamed by general reference to the class to which he belongs”. The same view was taken by Gatley on “Libel and Slander” (4th Edn.) on page 115 expressing that while discussing defamation about a class no particular cause of action can be maintained by individual members of the class. It was held in the case of Eastwood v. Holmes, (1858) 1 F & F 347 held that the defamed statement must ascertain to a specific person to put the law in motion and to raise a cause of action; references of the same are made in a bunch of case laws. The next case law pointed out that to make a defamed statement put into motion it should be made to a particular person and to prove this there shall be two stages; first that he must satisfy the court that the person has personally been injured by the statements directly made to him. If the statement appears to be more generalised then the case under defamation can not be instituted. (Braddock v. Bevins,1948 1 K. B. 580 ).

The court expressed support on the case law mentioned by the Counsel for the Accused-Petitioner. In the case of Hosseinbhoy Ismailji v. Emperor, (1935) 36 Cri LJ 408 (Sind), the person who personally suffered from the defamation can put the law into motion. Where, therefore, the editor of the paper writes a highly derogatory statement against an institution, a person who is just a member of that institution cannot come under “aggrieved persons”, under Section 198 of CrPC. Another observation by the court with this case law is if a statement is defamatory to a person or any head of the institution, it is only for him to institute a case and put the law to motion for defamation. 

The court while pointing out the contentions mentioned by the Counsel for the Complainant explained that the submission made for Section 198 is untenable and as it seems to attain the same with a very wide meaning which is much above the intention of the legislature. There has been no proper cognizance to take the offence triable under Section 198 of the CrPC. The Court exclaims that the second contention of the Counsel for the accused-petitioners has a strong footing as the defamatory statement made relates to the head of the institution and not the Complainant himself. The Complainant in any sense has not highlighted his personal injury by the impugned publication in the petition of the Complainant. Further, the Court agreed with the contention of the Counsel about the Ashram being an indeterminate body. 

The Court by analysing the situation inferred that the concept of defamation is as old as hills in the Indian Penal Code, 1860. Upon the ultimate analysis, it was held that whether the impugned publication is defamatory is not a question of fact and must abide by a full-fledged trial. 

Analysis 

The Court by supporting the contention of the Counsel of the Accused-petitioner declared to quash the criminal proceedings under Section 500 of the IPC, 1860. By explaining it in detail the court held that until and unless the defamatory statement is not made to a particular person, a case under Section 500 will not be instituted nor will it attract the provisions of Section 198 of the CrPC. Cause of action for defamation can only be attracted if the person proves that the derogatory statement is made specifically for him/her. Defamatory statements published or announced for a class of persons or an association of the person will not be treated as personal defamation. 

Conclusion

By concluding the article we can observe that the question of whether a particular statement is considered as defamation or not will be decided after a full-fledged trial and not prematurely but the institution of the case for defamation is based on whether the party is personally targeted or not. If the party is personally targeted then the person will have to prove to the magistrate about the presence of the defamation and if not personally targeted then the case would not be instituted. So, comment to an association of persons or an incorporated body cannot put the law into motion under defamation.

Reference

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Mukhtar Ansari criminal cases : an insight

By
Sneha Mahawar
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0
Image Source: https://bit.ly/2xuVCQP

This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article details the criminal cases of Mukhtar Ansari, a mafia-turned politician.

This article has been published by Sneha Mahawar.

Introduction 

Mukhtar Ansari is a BSP MLA representing the Mau seat in Uttar Pradesh. He has now established himself as a key figure at the Banda Jail in Uttar Pradesh. Ansari is a history-sheeter in the Ghazipur district’s Mohammadabad police station, where he is accused of 38 horrific crimes. The complaints against the five-time MLA have been filed at a number of police stations throughout the state of Uttar Pradesh, notably in Lucknow, Ghazipur, and Mau. The present article discusses some major criminal cases that are remaining as well as dismissed off by courts across India, in the name of Mukhtar Ansari.

Criminal cases against Mukhtar Ansari

Since 2005, the Mau-based BSP politician, Mukhtar Ansari has spent the majority of his time behind the prison. On the other hand, his time in prison had no effect on his electoral prospects. Since 1996, Mukhtar had won every election he stood in. The mafia-turned politician has been accused of horrific crimes and is claimed to run one of the largest criminal syndicates in eastern Uttar Pradesh. According to the Uttar Pradesh Police’s dossiers, Mukhar Ansari is one of the most feared mobsters, claimed to be part of several horrific crimes ranging from murder, extortion, cheating and conspiracy apart from offences under the Gangsters Act, 1986 and land grabbing.  

The Ansari family has a long and illustrious history, hailing from Mohammadabad in the Ghazipur area. Dr. Mukhtar Ahmad Ansari, Mukhtar’s grandfather, was a well-known independence fighter and the President of the Indian National Congress. Brigadier Usman Ansari, his maternal grandfather, was a highly decorated army commander who was killed in combat in Jammu and Kashmir in 1948 while battling Pakistani soldiers and militia. Hamid Ansari, India’s former vice president, is also a member of the same family.

Several fresh charges involving unlawful land occupancy, falsification of papers, and firearm possession have been filed against Mukhtar, his wife, sons, and other family members in the last few months. The government apparatus has leapt into action, with houses in Lucknow and other towns being razed. Several family members’ arms licenses have been taken, and a reward has been set for Mukhtar’s sons.

Mukhtar along with his brother Afzal Ansari, who is a member of Parliament from the Gazipur constituency, was also accused of the murder of BJP MLA Krishnanand Rai in 2005 but was acquitted in 2019. Afzal was elected to the Lok Sabha on a BSP ticket in the same year, defeating BJP leader and former cabinet minister Manoj Sinha. The Ansaris are said to have vested interests in railroads and other government contracts, and the Uttar Pradesh Police believe they have significant clout in eastern Uttar Pradesh and portions of Bihar. Some of the most notable crimes alleged to have been committed by Mukhtar Ansari have been discussed hereunder. 

Little known facts about crimes by Mukhtar Ansari

  1. Mukhtar Ansari’s first major criminal case was filed in Ghazipur in 1988 when he reportedly killed contractor Sachidanand Rai over a contract for the Mandi Parishad (Agriculture Produce Markets Board). The matter remains sub-judice. The assassination of Sachidanand Rai ‘established’ Mukhtar in eastern Uttar Pradesh. He soon had his underlings in every area deciding on government contracts. 
  2. Nand Kishore Rungta, the largest coal merchant in eastern Uttar Pradesh and the Vishwa Hindu Parishad’s treasurer at the time, was assassinated in Varanasi’s Bhelupur neighbourhood on January 22, 1996. Mukhtar was suspected of being the mastermind behind the kidnapping and murder. Mukhtar received a clean chit following a CBI investigation.
  3. There was no solid evidence to nail Lucknow jail superintendent R.K. Tiwari when he was shot dead in front of the Raj Bhavan in Lucknow in February 1998, allegedly by Mukhtar Ansari and his men. Meanwhile, Meerut jail’s deputy jailor Narendra Dwivedi was killed in a similar manner in 2007. 

BJP MLA Krishnanand Rai murder case

In broad daylight near his native village Goundour on November 29, 2005, accused Prem Prakash Singh and his other associates conspired with accused Mukhtar Ansari to kill Krishnanand Rai, an MLA from Mohammadabad constituency in Ghazipur district, along with his gunman and supporters, using highly sophisticated weapons. Accused Prem Prakash, along with Mukhtar Ansari, Afzal Ansari, and six other infamous gangsters Sanjeev Maheshwari @ Jeeva and others, were identified in the case. Although the accused, Prem Prakash, eluded capture, he was charged with other co-accused individuals. Following that, the accused, Prem Prakash Singh, reorganized his gang and extorted money from coal merchants in eastern Uttar Pradesh in exchange for a portion of tenders. 

In light of the present case of Sc No. 7/14, Fir No. 66/09, State vs. Prem Prakash Singh & Ors. (2016), a Delhi District Court had made the following observations while viewing that the accused persons had not committed any offence under Maharashtra Control of Crime Act, 1999 (as extended in N.C.T of Delhi on 02.01.2002) within the jurisdiction of the territory of Delhi: 

  1. All the accused persons listed in this case were acquitted. They were released from custody immediately if they were not required in any other case. 
  2. Their bail bonds, surety bonds except bail bonds are given under Section 437­A of the Code of Criminal Procedure, 1973 were directed to be cancelled and their respective sureties be discharged. 
  3. The documents of the sureties furnished at the time of furnishing bail bonds except for bail bonds under Section 437­A Code of Criminal Procedure, 1973 were directed to be returned back to the respective sureties after the cancellation of the endorsement, if any.

Awadhesh Rai murder case

Awdhesh Rai was killed in August 1991, and his brother, Congress MLA Ajay Rai, filed an FIR at Varanasi’s Chetganj police station, accusing Nyayik and four others, including mafia don-turned-politician and an independent MLA Mukhtar Ansari. According to Ajay Rai, Mukhtar Ansari was personally engaged in the assassination of the murder of his elder brother Awadhesh Rai on August 3, 1991, which occurred near their home and in which Ajay Rai was present and therefore was also the plaintiff. He claims to be in the middle of a legal struggle, fighting for justice.

Ajay Rai recalled the events of that day, stating that it was lightly raining on August 3, 1991, and he was standing outside of their house with his brother. Their car was parked in the street. At the same moment, a Maruti van arrived, carrying Mukhtar Ansari and other passengers. Everyone exited the vehicle, fired a shot at Awdhesh Rai, and ran away. Ajay had tracked them down and yelled at them. Chetganj police station, which is located nearby, offered no assistance. The injured was driven to the Kabirchaura Hospital, where he was pronounced dead.

According to Ajay Rai, the case is currently in its trial stage and he expects that this will be one such case where Mukhtar Ansari will get punished rigorously as strong evidence against him has already been placed before the court. 

Land grabbing and extortion cases in the eastern Uttar Pradesh

After being taken to Mohali from Uttar Pradesh’s Banda prison, BSP MLA Mukhtar Ansari was detained on accusations of attempting to extort Rs. 10 crores from a Mohali-based builder. On the 22nd of January, 2019, the gangster-turned-politician was brought before judicial magistrate Amit Bakshi, who sentenced him to two days in police detention. Though the police have been tight-lipped about Ansari’s case, police sources said he was detained after a builder in Sector 70 submitted a complaint alleging that he received a call from a guy identifying himself as Mukhtar Ansari and demanding Rs 10 crores in “protection money.”  Warrants for producing him before the court was obtained by a police squad and transported to Mohali under tight security. In Mataur police station, a case was filed under Sections 386 and 506 of the Indian Penal Code, 1860. 

On February 18, 2021, the Allahabad High Court denied a petition filed by incarcerated criminal Mukhtar Ansari, seeking a stay on his arrest in connection with an FIR filed against him and his two sons for allegedly grabbing a property in the upscale Dalibagh district, Uttar Pradesh. The Court, however, prolonged the stay on the arrest of his two sons, Abbas and Umar, until March 4, 2021, because their counsel needed more time to file a rejoinder document in response to the state government’s counter-affidavit. On October 21, 2020, Ansari’s two sons were given an interim stay of detention in the same case. Ansari had challenged the FIR filed with Hazratganj police, claiming that it did not disclose the commission of a cognizance offence and that it had been filed for malicious purposes. On August 27, 2020, Mukhtar Ansari and his sons were charged with cheating and forgery in relation to land in the Dalibag region, claiming that they obtained a map sanctioned by the LDA in a fraudulent way with the intention of constructing on it.

State of Uttar Pradesh vs. Jail Superintendent (Ropar) & Ors (2020)

The present case before the Supreme Court of India concerned a Writ Petition filed under Article 32 of the Constitution of India, read with Section 406 of the Code of Criminal Procedure, 1973 by the State of Uttar Pradesh, seeking Writ of Mandamus as a direction to the State of Punjab and the Learned Judicial Magistrate-I of Mohali, Punjab, to transfer the criminal proceedings and trial in the case titled as State of Punjab v. Mukhtar Ansari (2019), which is pending before the Learned Magistrate, and handover the custody of the accused, Mukhtar Ansari from Roopnagar Jail, Punjab to District Jail Banda, Uttar Pradesh. 

Mukhtar Ansari, who has been held in the Roopnagar prison in Punjab for over two years, is accused of evading 26 court warrants issued against him by a special court in Prayagraj, all based on medical reasons. Ansari has hypertension, diabetes, back problems, and a skin allergy, according to reports. He has also failed to apply for bail in an extortion-cum-threat case filed against him in Mohali, Punjab, for which he is in judicial custody, despite the fact that Punjab Police had a statutory time of 90 days to conduct its investigation into the matter, allowing Ansari to be released on “default bail.”

The observations made by the Apex Court in light of this case have been presented hereunder:

  1. The petition, filed under Article 32 of the Indian Constitution and Section 406 of the Code of Criminal Procedure, 1973, was held to be maintainable before the Apex Court.
  2. The relief, sought for transfer of the case entirely, to carry out an investigation in terms was not granted as the Punjab Police was already doing the same.
  3. In exercise of its power under Article 142 of the Constitution, the Supreme Court of India issued directions, directing the respondents to hand over custody of the to the State of Uttar Pradesh, within a period of two weeks from the date of delivery of the judgment, so as to lodge him in District Jail, Banda in the State of Uttar Pradesh.
  4. The Apex Court made it clear that there shall be a direction to the Superintendent of Jail, District Jail Banda, Uttar Pradesh to extend the necessary medical facilities to Mukhtar Ansari and if any speciality treatment is required, then the Jail Superintendent shall take necessary steps to extend such medical care also.

Conclusion 

Justices R.F. Nariman (retired) and S. Ravindra Bhat of the Supreme Court of India, while deciding on the landmark case of Rambabu Singh Thakur v. Sunil Arora & Ors (2020), had made it clear that it shall be mandatory for political parties [at the Central and State election level] to upload on their website detailed information regarding individuals with pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the concerned court, the case number, etc.) who have been selected as candidates, along with the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates. 

Taking the same into account if the list of criminal cases associated with Mukhtar Ansari, discussed in this article, is viewed, the reformative aforementioned judgment seems to sink down the drain. The majority of the cases labelled on the politician have been washed off by courts and state actors. Few which remain, await justice for common people. It is, therefore, an urgent necessity that individuals who have been repeatedly escaping away from the robust laws of the nation, must be subjected to stringent deterrents in order to avoid the prolonged suffering of several common citizens of the nation. 

References 

  1. https://indianexpress.com/article/explained/explained-why-has-mukhtar-ansari-become-a-bone-of-contention-between-up-and-punjab-6910229/
  2. https://www.outlookindia.com/newswire/story/31-cases-against-mukhtar-ansari-between-1988-2005/656845
  3. https://www.hindustantimes.com/india-news/mukhtar-ansari-to-appear-in-2-cases-virtually-today-from-banda-jail-101618201076230.html
  4. https://theprint.in/judiciary/26-warrants-bail-but-mukhtar-ansari-still-in-punjab-jail-ups-custody-case-before-sc/585842/

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

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Landmark cases on death penalty in India

By
Abanti Bose
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0
Death penalty
Image Source: https://rb.gy/9uoga8

This article is written by Jagriti Sanghi, an Advocate practising in the Courts of Telangana. This article discusses some well-known death penalty cases in India.

This article has been published by Abanti Bose.

Introduction 

​​Law and morality are at a dubious stage. Whether one should go on the path of law or should one go with morals. If one should go with morals, then there would be no justice done to both the parties in the dispute. Therefore, one should go with the law but again morality will be questioned. For example, defending a rape case will go against the morality of that advocate. And the same thing acts as a bar when it comes to awarding the death sentence to the accused. Therefore, the rate of the death penalty is comparatively low in India. But since 2016, there is a growth in the rewarding of the death penalty in India as 65 per cent of the death sentence has been confirmed to be awarded. 

Background of death sentence

In India, a death sentence is awarded only for the rarest of rare cases. Many precedents were in dispute when it came to awarding the death sentence. In Ediga Anamma v. the State of Andhra Pradesh, (1974) the Supreme Court laid down the principle that life imprisonment for the offence of murder is the rule and capital sentence is the exception in certain cases. The Court also stated that a special reason should be given if the court decides to impose a death sentence. 

In another case of Bachan Singh v. the State Of Punjab, (1980) the question was raised whether the punishment of the death penalty will amount to murder under Section 302 of the IPC? Another question that was raised in this case was, what all cases will come under exceptional cases for awarding the punishment of death sentence? The Supreme Court held that Section 302 of the Indian Penal Code, 1860 (IPC) is constitutionally valid and the death penalty won’t amount to murder. It stated that only in the rarest of rare cases that are brutal, the death penalty should be imposed. The Bench stated that numerous circumstances justify the imposition of a lesser sentence. Judges should not be bloodthirsty. 

Now the question arises how to determine the rarest of the rare cases? Two factors for that are: 1) When there is extreme culpability of the offender in committing the offence of murder; and, 2) when there is an extreme cause of the offender in committing the offence of murder. The death penalty is also awarded after seeing the aggravating and mitigating factors and balance of the same. 

Mitigating factors

Some mitigating factors observed by the Bench in the landmark Bachan Singh case are:

  • Mental or emotional status of the culprit;
  • Age of the accused, whether young or old;
  • That the accused can be reformed;
  • That the accused acted under coercion.

Aggravating factors

Some of the aggravating factors noted down by the Court in Bachan Singh case are:

  • Pre-planned murder
  • Calculated and cold-blooded murder
  • Helpless state of victim
  • Horrendous details of the crime committed
  • Shocking nature of the crime

But the Court didn’t explain how the mitigating and aggravating factors are to be balanced. The Court observed that all such situations where hanging should not be imposed as punishment cannot possibly be noted down in one place as it is humanly impossible to anticipate all the future circumstances and human behaviour in a society.

​​This balance was discussed under the case Machhi Singh and Others v. the State of Punjab (1983). A feud between the families took away seventeen lives. The Supreme Court explained the mitigating and aggravating factors and also gave the circumstances related to the imposition of the respected punishment. In the aggravating factor, murder should be pre-planned with extreme brutality or murdering a public servant on or off the duty. And in the mitigating factor, the court considers the circumstances of the offender along with the circumstances of the crime. Some of the most common aggravating factors discussed in the case are:

  • Is there something uncommon and unseen in the crime committed which warrants death punishment?; 
  • When the manner of commission of the crime is extremely revolting, disgusting, brutal, grotesque;
  • When the victim is inhumanly tortured to death;
  • Cold-blooded murder with deprave motive;
  • Bride burning, setting the house on fire, etc.

Therefore, where the case has a more aggravating factor, then in those cases the punishment will be of the death penalty and if there is more of the mitigating factor, then that will amount to life imprisonment. 

There has been an increment in awarding the death penalty in India since 2016. Furthermore, in an offence under the Protection of Children from Sexual Offences Act, 2019 (POCSO Act); the courts are given the power to sentence the punishment for the death penalty. In the following headings, a few insights into the most horrifying death row cases have been mentioned.

Vinay Sharma v. Union of India (2020)

The Vinay Sharma v. the Union of India (2020) case, also famously known as the Nirbhaya gang-rape case, had shocked the conscience of the whole country. The unfortunate and brutal incident occurred in the chilled weather of Delhi on a bus. The girl was brutally raped by six accused which also led to the death of the girl. An iron rod was also inserted into her private parts and she was thrown naked to the road. All the physical and mental torture led to her death. When the case was brought before the court, one of the accused committed suicide in jail and one of the accused was a juvenile so he was not sentenced to death. But the other four accused were sentenced to death and were also hanged in the year 2020. This judgement was concluded after analysing the aggravating and mitigating factors. The aggravating factors outweighed the mitigating factors if any. The death sentence was imposed because life imprisonment seemed inadequate considering the relevant circumstances of the crime and the inhuman torture committed on the victim which brought about her death.

Shabnam v. Union of India (2015)

In Shabnam v. the Union of India, (2015) the Court awarded a death sentence to the woman and the same was hanged for the first time in the Indian criminal justice system. In this case, Shabnam with her lover killed the members of her family. This incident happened in the year 2008. Shabnam killed her family members because they weren’t allowing her to marry her lover. Therefore, she planned a brutal murder for her family which amounted to be the aggravating factor. She didn’t even leave her young nephew (who was only 10 months old) and also led him to drape with blood. She also submitted mercy to the president which got rejected and she is mostly to be hanged by next year.

Hyderabad veterinarian case (2019)

In the Hyderabad veterinarian case (2019), the female doctor was all alone in the scooter which she parked to the Shamdabad plaza and from where she took the taxi to the office where she was going to work. In the meanwhile, four accused were monitoring her and which led them to puncture her scooter in her absence. When she was back from her work she saw that her scooter was punctured. And in the meanwhile, these four accused came and started forcing her and raping, burning her body. The case was a clear cut case for awarding death sentence, but here the police encountered the accused leading to questions about our Indian criminal justice system.

Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010)

Sidhartha Vashisht @ Manu Sharma v. the State (NCT Of Delhi) (2010), also known as the Jessica Lal case, was one of the horrifying death cases which led the society to know that sometimes money can buy anything but cannot buy justice. In this case, the girl was shot to death when she refused to serve alcohol to one of the accused. Her sister had to run to all the courts for justice for her sister and finally, through a media trial, she led to having the suo motu case taken to the High Court. In this case, the accused manipulated the prime eye witness to become a hostile witness which led the court to award him the punishment of life imprisonment. This judgement was passed after seeing the balance between aggravating and mitigating factors.

Surendra Koli v. State of UP (2011)

Surendra Koli v. the State Of U.P. (2011), also famously known as Nithari Kaand, which happened in the year 2007 was one of the shocking updates for the Indians. In this case, the bodies of the deceased children and adults were found at the house of Mohinder Singh Pandher in the village of Noida called Nithari. When the case was studied in the depth it was found that the found bodies of the girls had been raped and killed and eaten by him. He had committed such a crime to fifteen girls and was awarded the death penalty. He was covered under the aggravating factors. But because of certain provisions of plea bargaining, he was given life imprisonment.

Conclusion 

These were the few horrifying death cases that occurred in the history of the Indian criminal justice system. There are many cases for example Hathras gang rape case, Aarushi Talwar murder case (Noida double murder case), Unnao gang-rape case, in which the investigation or final judgment is pending but necessitate a capital sentence punishment for the gravity of the crime committed. These precedents act as the specimen case so that such brutal cases are not repeated in the future. And most importantly, the balance between aggravating and mitigating factors should always be considered while awarding judgements for such cases.

References

  1. ​​https://economictimes.indiatimes.com/news/politics-and-nation/is-justice-served-by-premature-release-of-jessica-lals-killer/articleshow/76252372.cms?from=mdr
  2. https://www.thehindu.com/news/national/telangana/rape-rage-and-an-exchange-of-fire/article30300278.ece
  3. https://www.project39a.com/annual-statistics
  4. https://economictimes.indiatimes.com/news/politics-and-nation/nirbhaya-case-four-convicts-to-be-hanged-on-march-20/articleshow/74491448.cms
  5. https://www.indiatoday.in/india/story/shabnam-s-hanging-may-disinherit-son-from-her-father-s-property-1773170-2021-02-25
  6. https://scroll.in/article/985918/404-prisoners-are-on-death-row-in-india-with-uttar-pradesh-leading-the-list 

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Municipal Corporation Hyderabad v. P.N Murthy Ors. 1987 : case study

By
Rachit Garg
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0

This article is written by Ishan Arun Mudbidri from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. The keywords mentioned in this case are vesting, exempt, and taxes.

Introduction

The allottees, to whom the Municipal Corporation of Hyderabad had allotted buildings constructed under the “Low-income housing scheme”, questioned the validity of the taxes levied on them by the Corporation in a writ appeal dated 26.6.1972. The Single Judge in this order upheld the validity but the Division Bench had a different view under Clause 15 of the Letters Patent. The Municipal Corporation in the present appeal has said that the Single Judge was right in holding the levying of taxes valid, and the Division Bench was wrong.

Date of Judgment

30th January 1987

Citation

1987 AIR 802

Court

Supreme Court of India

Parties

Petitioner: Municipal Corporation of Hyderabad

Respondent: P.N. Murthy & Ors.

Facts of the case

The petitioner (Municipal Corporation of Hyderabad) started a “Low Income Housing Scheme” in 1957. Under this scheme, the Corporation allotted houses in various parts of Hyderabad City, by way of a hire purchase agreement (used for buying expensive goods by giving initial down payment and rest of the money is paid in balance plus interest in installments). The respondents were also allotted houses under this scheme. Under the agreement, the allottees were to pay 20% of the sale price as the initial payment and the remaining payment was in monthly instalments. One of the clauses in this agreement, specifically mentioned that the petitioners would remain, owners of the house until the last installment is paid. Further, the agreement also prohibited selling or mortgaging the house within five years of such date, even after becoming owners. It was further mentioned that the allottees shall have to pay all taxes, including water and electricity charges.

The allottees whose writ petition is being instituted, received a demand notice on 31-12-1964 to pay house taxes from 1-4-1961 onwards. They were served another demand notice in 1965, to file for objection within 15 days from the date of the receipt of the notice. The writ petitioners filed their objection before the 15 days period finished.

They argued that the taxes levied on them cannot be valid as they have not yet taken ownership of the house, and they vest in the Municipal Corporation. In response to this, the Corporation served another demand notice on 19-6-1966 demanding the allottees to pay taxes from the period running 1-4-1961 to 31-3-1965.

Hence, based on this contention, the present appeal has been filed.

Issues raised

  • Whether the allottees are liable to pay the taxes levied on them?

Contentions

The only contention raised in this was by the writ petitioners who state that according to the hire purchase agreement, the allottees are not yet owners of the house so, the property vests in the Corporation. Hence, under Section 202(1) of the Hyderabad Municipal Corporation Act 1955, the Corporation should be liable to pay the taxes.

Observation of the Court

The Court while deciding the present case, looked into various provisions of the Hyderabad Corporation Act, which are as follows:-

  • Section 197(1) states that the Corporation shall impose taxes on lands and buildings.
  • Section 199(1) states that subject to limitations, the following taxes shall be levied on lands and buildings in the city, including general taxes, water taxes, lighting and drainage tax, and a conservancy tax.
  • Section 202(1) which is the point of debate in this case, states that a general tax shall be levied on lands and buildings in the city, subject to exceptions, including 

(a) a building or land used for the purpose of disposing of the dead, 

(b)buildings and lands used for educational or charitable purposes,

(c) buildings and lands vested in the corporation,

(d) and buildings and lands vested by the Central or State government.

  • Section 204(1) states that property taxes shall be levied on an actual occupier of the premises if such an occupier holds the premises immediately before the government or the corporation.

Hence, referring to these sections, the Court laid down the following observations:

  • An exception under Section 202(1) relating to levying general taxes, holds that the Corporation is relieved from imposing taxes on those types of buildings mentioned from clause (a) to (d). The exception is based on policy and principle. Hence, these four clauses make it clear that the exemption won’t be given to those properties which are used for profit purposes rather than the public.
  • The buildings and lands which are properties of the Corporation and used by the same will be a waste if they collect taxes from themselves. The main purpose of collecting taxes is to expand and bring better resources. So if one collects taxes from oneself, how will these resources augment? Hence, this is the reason why buildings and lands which are owned by the Corporation are exempted from paying taxes.
  • The Court further emphasized on Section 204(1) of the Act. The Court observed that if the property owned by the Corporation but currently occupied by someone else, is not liable for property taxes, then there is no meaning to this particular Section. This Section states that the property taxes shall be levied on buildings or lands which are actually occupied by a person or a body other than the Corporation. Hence, this clearly means that the said occupier shall be liable to property taxes as if he/she are holding the property from the Corporation itself. Hence, this proves that the Corporation is entitled to levy taxes on those buildings which it owns but is occupied by someone else. Hence the Court agreed to the opinion of the Single Judge that, the buildings and lands which are vested unto the Corporation in the title as well as in possession are exempted from levying property taxes.
  • However, those buildings which are vested unto the Corporation, but are currently occupied by a third party, are not exempted.
  • Lastly, the Court observed that the buildings and lands must not only be owned by the Corporation but also be occupied by the Corporation itself, which shall satisfy the contentious Section 202(1). Hence, the term “vesting” has been used in this sense.
  • The term “vesting” under Section 202(1)(c) must be seen as vesting in the title as well as vesting in possession. There is no provision in these sections to exempt the tenants inducted by the Corporation from paying the taxes. The tenants should be subject to property taxes. Hence, the Court concluded by saying that the provisions of the said Act, cannot be used according to how the respondents want.

Relevant cases

The Court, while talking about Section 202(1) of the said Act, referred to the case of  Fruit & Vegetable Merchants Union v. Delhi Improvement Trust, (1954). In this case, the government had allotted certain lands to the Improvement Trust for the construction of a market. The Trust constructed the market with the help of government funds at interest. It was mentioned in the agreement that the Trust will pay a fixed sum of money by way of the revenue generated from the market. The income from the market had to be applied to the interest advanced by the government and the surplus had to be kept for the government. The contentions raised were that the market was vested in the Trust, and it cannot, just by transfer, vest in the Chief Commissioner. Hence, it was held that the word ‘vest’ has not got a fixed meaning, and it may vest in the title, in possession, and it may vest in a limited sense.

Another case referred by the Court was the case of Richardson v Robertson (1862), wherein it was held that vesting means vesting in possession.

Judgment

The Supreme Court while looking into Section 202(1) of the Hyderabad Corporation Act observed that there is no principle in the current provision exempting the allottees from paying the taxes. The said provision cannot be understood in a manner in which the respondents want. Hence, the Court held that the Single Judge was correct in upholding the writ petition whereas, the Division Bench had made an error. Hence the Court allowed the appeal to dismiss the order of the Single Judge and set aside the order of the Division Bench.

Analysis

Hence, the Court acknowledged the contentions of the writ petitioners by saying that the allottees would not become owners of the houses as all installments were not paid. The properties no doubt vest in the Corporation itself. But the Court further looked into the provisions of the Hyderabad Corporation Act and quite rightfully pointed out that the given provisions of the Act do not exempt the tenant from paying property taxes just because the property is not vested in them. Section 204(1) and Section 202(1)(c) of the Act were used by the Court to decide this. Further, the Delhi Improvement Trust case referred by the court clearly defines the meaning of the term “vesting”. This word had become a point of debate between the two parties, which the court precisely clarified.

Conclusion

The Court rightfully pointed out that the Division Bench had committed an error in allowing the writ petition of the allottees. They were not exempted from paying property taxes based solely on the argument that the property was not owned by them. This case shows that the courts derive their judgments only by the various and enactments that are laid down, and that there’s no sympathy or personal interests involved. The court could have shown sympathy towards the allottees and asked the Corporation to pay the taxes on behalf of them, but that did not happen.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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Abortion v. miscarriage : an overview

By
Abanti Bose
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0
Image source: https://bit.ly/2Z33asM

This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a comparison between abortion and miscarriage with respect to Indian laws.

This article has been published by Abanti Bose.

Introduction 

Miscarriage and abortion are both regarded as immoral all throughout the world. Many people were for and against the Anti-abortion Bill that was passed in the United States. While some feel abortion is murder, others believe it is a woman’s right to choose. These two viewpoints are also popular in India, and being a religiously conscious culture, some Indians consider abortion to be a religious offence. Various medical jurists have provided a generic meaning for this phrase. The “expulsion of the ovum or embryo from the uterus following conception” is one such definition. The time limit for having a miscarriage or having an abortion varies from country to country. In India, the Indian Penal Code, 1860, was the only legal protection for women dealing with miscarriage and abortion until 1971. The Central Family Planning Board proposed to the Ministry of Health in 1964 that abortion be legalised. The Shantilal Shah Committee was constituted for this purpose, and the government approved the Medical Termination of Pregnancy (MTP) Act, 1971, after receiving its report in 1966. The present article provides a comparison between abortion and miscarriage with respect to the laws governing them, challenges faced by them and the way they have been perceived over the years by the Indian legislature. 

Choice and no choice : abortion and miscarriage

Abortions have been classified and definitions have been supplied by India’s National Health Portal. It is a method of terminating a pregnancy. The embryo or foetus, as well as the placenta, are removed from the uterus using medication or surgery. Early pregnancy loss, often known as spontaneous abortion or miscarriage, is one of the categories covered by the aforementioned site. It has been defined as “non-induced embryonic or foetal mortality or passing of products of conception before 20 weeks of gestation.” 

According to the National Health Portal, miscarriages can be caused by a variety of factors, including hormonal issues, maternal infections, maternal health issues, autoimmune illnesses, uterine abnormalities, placental complications, or an incompetent cervix. When physicians notice any indications that might lead to one of the above-mentioned reasons of miscarriage early on, induced abortion may be recommended to save the mother’s life. The Indian Penal Code, 1860, solely addresses miscarriages, as opposed to induced abortion or medically terminated pregnancies, which are covered by the Medical Termination of Pregnancy Act, 1971.

According to Indian laws, the terms “miscarriage” and “abortion” are not used or defined. Instead, the term “medical termination of pregnancy” is used, and there’s a good reason for it. Rather than granting and protecting women’s reproductive rights, this word is designed to protect doctors from performing pregnancy terminations. Although this may appear to be a concern, physicians have been chastised for recommending abortion to their patients. While residents have always frowned upon miscarriage and abortion, ‘medical termination of pregnancy’ has eased the impact. This is due to the fact that the technique concentrates on terminating pregnancies in certain conditions.

Abortion v. miscarriage : a classic comparison

It’s crucial to understand the difference between abortion and miscarriage. All miscarriages are abortions, however, not all abortions are miscarriages. Miscarriage is a non-induced abortion that occurs owing to hormonal or biological issues.

Forms and kinds

Statutory provisions and legislations have categorized miscarriage and abortion into sub-categories. The same has been discussed hereunder.

Miscarriage

According to Section 312 of the Indian Penal Code, 1860, miscarriage can take two forms:

  1. Causing a miscarriage in a woman who is bearing a child,
  2. Causing a miscarriage in a woman who is quick with a child.

For clarity, a woman is considered to be quick with a child when the fetus’ movement inside the womb can be felt. This movement can occur at various times for different women, but it normally happens between 15 and 16 weeks after conception.

The first part of the section is about women who are expecting a child. Whoever is responsible for the miscarriage of such a child faces a sentence of up to three years in jail, a fine, or both. The second part of the section specifies that anybody who miscarries a quick child can be sentenced to up to 7 years in jail and a fine.

Abortion 

There are two types of abortion, namely, 

  1. Pill abortion: Medication abortion (commonly known as the abortion pill) involves the use of two separate drugs to end a pregnancy, mifepristone, and misoprostol. To empty your uterus, this drug produces discomfort and bleeding. It’s akin to having a heavy, crampy period, and the procedure is similar to an early miscarriage.
  2. Abortion in a clinic:  An in-clinic abortion (sometimes known as a surgical abortion) is a medical procedure. It works by sucking the contents of your uterus out. 

According to the Medical Termination of Pregnancy Act, 1971, if the abortion is performed within 12 weeks after conception, one doctor’s opinion is required. But, the Medical Termination of Pregnancy (Amendment) Act, 2021 (MTP Act, 2021) provides that abortion can be carried out on the advice of one doctor for up to 20 weeks, whereas advice of two physicians is required while administering abortion between 20 and 24 weeks for specific categories of women.

Laws and their take 

Both abortion and miscarriage have legal sanctions when it comes to India. Both these subject matters are protected by statutes that have been in existence for over a long period. The right to abortion is not mentioned in the Indian Constitution, although some judges argue that it is protected by the Right to Life. The Supreme Court upheld the judgment of the Suchita Case in Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors (2018), holding that the Right to Privacy is a fundamental right and that the right to abortion falls under this purview, and that reproductive rights must be protected by the State. In the case of Devika Biswas v. Union of India (2016), the Supreme Court held that a woman’s reproductive autonomy is a fundamental right and that the decision to have or not have a child is hers alone and must be made free of governmental interference. 

Miscarriage 

The Indian Penal Code, 1860, stipulates that causing miscarriages without the consent of the woman bearing the child, causing the death of such woman while causing miscarriage, preventing a child from being born alive or causing its death after birth, and causing such death by act amounting to culpable homicide, are all criminal offences. 

  1. Section 312:  As have been discussed previously, Section 312 of the Indian Penal Code, 1860 provides the two types of miscarriages and the possible consequences for the same. 
  2. Section 313: This Section is related to Section 312 but without the consent of the mother who is carrying the child. It makes no distinction between a lady who is or is not carrying a quick child. This Section of the law carries a penalty of up to ten years in jail as well as a monetary fine.
  3. Section 314: The first half of this section specifies that any person who does anything with the intent of causing the miscarriage of a woman carrying a child, with the permission of the lady, is liable to imprisonment for up to ten years and a fine. However, if the miscarriage was produced without the woman’s consent and the woman’s death was caused by any act, the person who caused the miscarriage and death might be imprisoned for life or up to ten years. It’s worth noting that the offender doesn’t have to be aware that their actions are likely to result in the death of such a woman. The presence or lack of this knowledge would have no bearing on their liability under this Section, and they would be held accountable regardless of their knowledge.
  4. Section 315: This Section covers any activity that might prevent a child from being born alive, sometimes known as stillbirth, or any action that could result in the child’s death after birth. This implies that the child is deemed to be dead at the time of delivery or shortly afterwards, rather than when it is still in its mother’s womb, as in the case of miscarriage. Anyone found guilty of an offence under this Section faces a sentence of up to ten years in jail, a fine, or both.
  5. Section 316: This Section is dedicated to the death of an unborn child who died suddenly. An unborn child is a child whose motions have begun within the mother’s womb. This Section states that anybody who commits any act that results in the death of another person and would be guilty of culpable homicide but also causes the death of a quick, unborn child, has committed an offence under Section 316. They will be sentenced to ten years in jail as well as a fine.

Abortion

The Medical Termination of Pregnancy Act of 1971 (presently Medical Termination of Pregnancy Act, 2021) is a law that allows certified medical practitioners to terminate certain pregnancies and regulates associated issues. Termination of pregnancies must be performed by registered medical practitioners with a recognized medical qualification, whose names are registered in the state medical register, and who have expertise in gynaecology and obstetrics.

Section 3 of the Act states that the above-mentioned practitioners are not guilty of the violations listed in the Indian Penal Code, 1860, or any other legislation if they terminate pregnancies in accordance with the Act’s provisions. This safeguards practitioners from miscarriage-related offences as defined by the Code. This is one of the reasons why some activists and supporters feel the Act is more concerned with preserving doctors’ rights than with safeguarding women’s reproductive rights.

Role of good faith

The concept of ‘good faith’ plays a key role in both abortion and miscarriage cases. Discussion concerning the same has been provided hereunder.

Miscarriage 

Sections 313 and 315 of the Indian Penal Code, 1860 lay down the relevance of good faith with respect to miscarriage. In the case of Section 313, which presents voluntary miscarriage as an offence, highlights that inducing a miscarriage must be done voluntarily and not in good faith. Such an act is deemed to be carried out in good faith with the sole intention of saving the woman’s life. This section shall be subject to the same basic requirements as the others, namely that the act must be voluntary and done without good faith. Therefore, the negative connotation attached to this provision reflects the importance of good faith in an act of miscarriage. It is the element of good faith that draws a line between legal and illegal acts. 

Walking in the same direction, Section 315 also stresses the term good faith in a negative way thereby clarifying the fact that if an act is done in good faith, the same will not be categorized as an offence under Section 315 of the Indian Penal Code, 1860. 

Abortion

Section 3(2) of the Medical Termination of Pregnancy Act, 2021 which deals with termination of pregnancy by medical practitioners, specifies that the opinion to be provided by the medical practitioners to their patients before proceeding with abortion must be in good faith. Although the term ‘good faith’ has not been defined by this legislation, the same is followed in the same manner as provided by Section 52 of the Indian Penal Code, 1860. An interesting thing to note here is that the MTP Act 2021 attaches a positive connotation to the term ‘good faith’ with respect to abortion which in the case of miscarriage was the opposite, although both signify the same thing. 

Section 3(1) of the Act (which provides a registered medical practitioner shall not be guilty of any offence under the Indian Penal Code, 1860 or under any other law for the time being in force if any pregnancy is terminated by them in accordance with the provisions of this Act), is subject to Section 3(2) of the Act of 2021. 

Conclusion 

It is a well-known fact that India is a patriarchal country that favours masculine gender over females. Despite this, Indian laws have begun to shift in favour of women’s rights, recognizing the years of oppression women have endured and enacting new legislation to address it. At the same time, Indian laws do not fully safeguard and guarantee the rights of women. There are still numerous laws that are outdated and do not address the challenges that women confront. In India, miscarriage is illegal, regardless of whether the woman asks for the induced abortion. The Indian legislature should strive to develop abortion and miscarriage legislation that respects women’s reproductive rights, just like the MTP Act, 2021. It is because of this legislation,  India will now join the ranks of nations with a progressive law that permits legal abortions for a variety of medicinal, humanitarian, and social reasons. It is a watershed moment that will further empower women, particularly those who are vulnerable and rape victims. The Indian Constitution grants women the freedom to make reproductive decisions, and it is in the best interests of the residents of this nation, particularly its women, that the legislature acknowledges these rights.

References 

  1. https://www.132healthwise.com/difference-between-pregnancy-termination-and-miscarriage.php
  2. https://scroll.in/article/993527/indias-amended-abortion-law-still-gives-doctors-not-women-the-final-say-in-terminating-pregnancy
  3. https://www.jstor.org/stable/43950391?seq=1

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Joint liability under IPC

By
Sneha Mahawar
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0

This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of joint liability under the Indian Penal Code, 1860. 

This article has been published by Sneha Mahawar.

Introduction 

A person who genuinely commits a crime is usually held legally accountable for their actions and punished accordingly. The criminal responsibility concept states that the individual who commits an offence is liable and may alone be declared guilty. However, Sections 34 and 149 of the Indian Penal Code, 1860, create an exception to the norm, placing criminal culpability on the culprit and their associates who collaborated in the commission of the crime in support of a common intention or prosecution of a common aim. Each of them becomes jointly accountable in such a scenario. The Supreme Court of India had viewed the same in the notable case of Ramesh Singh alias Photti v. State of Andhra Pradesh (2004). This article provides a detailed analysis of the concept of joint liability under the Indian Penal Code, 1860. 

Scope of joint liability under Section 34 of the Indian Penal Code, 1860

Section 34 of the Indian Penal Code, 1860 lays down the provision for joint liability in cases where different persons share a common intention. Section 34 reads as, “acts done by several persons in furtherance of common intention”. In order to understand the term ‘act’ in this context, a look into its preceding section needs to be made. Section 33 defines the term ‘act’ and ‘omission’.

Relation between Sections 33 and 34

Sections 33 and 34 make it clear that the word “criminal act” refers to more than a single act and encompasses a sequence of acts carried out in rapid succession and intertwined in such a way that they cannot be distinguished from one another, with various motives imputed to successive acts. When seen in this light, it is evident that the sections are meant to address situations in which it is impossible to discern between the unlawful conduct of individual members of a group who all act in support of a common goal. The Supreme Court of India while deciding in the case of Shri Ganesh v. State of Mysore (1958), had observed that Section 34 codifies the common-sense notion that if two or more people do anything together, it is the same as if they did it separately. Therefore, the three main elements that constitute Section 34 are as follows:

  1. A criminal act must be done by several persons.
  2. The unlawful conduct must serve to enhance everyone’s shared intention.
  3. All people must take part in achieving the shared intention.

These three elements guide a court in assessing whether or not the person accused in front of it is jointly accountable with others. While the first two aspects pertaining to the activities that are attributable to the accused and must be shown as such, the third element refers to the consequences of such actions. The Apex Court’s view in the case of Shyamal Ghosh v. State of West Bengal (2012) stated that once the criminal conduct and common purpose have been established, the rule of constructive culpability enshrined in Section 34 of the Indian Penal Code kicks in. It must be proven that a person has done something with others before he may be held accountable to others. Every member of the group charged with Section 34 assistance is required to take part in the criminal conduct.

Barendra Kumar Ghosh v. King Emperor (1925)

The case of Barendra Kumar Ghosh v. King Emperor (1925) was one of the early cases where the scope of Section 34 of the Indian Penal Code, 1860 was taken into consideration by Lord Sumner of the Privy Council.  In this case, the accused had appeared before the Privy Council after his conviction for murder under Section 302 read with Section 34 of the 1860 Code was upheld by the Calcutta High Court. The appeal was dismissed as the Privy Council made the following observation. 

Section 34 deals with the commission of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of all as if he had done them himself; for ‘the act’ and ‘that act’ in the latter part of the section must include the entire action covered by a criminal act ‘in the first part’ because they refer to it. In other terms, a ‘criminal act’ is a collection of criminal acts that culminate in something that an individual would be responsible for, if it were all done by himself, i.e., a criminal offence. 

Common intention in light of the Indian judiciary 

The Supreme Court of India while deciding on the case of Goudappa v. State of Karnataka (2013) had observed that it is a common sense premise that if numerous people are accused of committing criminal conduct, all such individuals are likely to have actively provided encouragement, assistance, protection, and support, as well as actively participated or otherwise engaged in the illegal act itself. Thus, even though a specific act was performed by an individual, if there was a common intention and they all participated in support of that intention, they are all held accountable for the offence committed.

The top court’s view in the 1977 case of Ashok Kumar v. State of Punjab was that the purposeful joint criminal act by multiple individuals in furtherance of a common intention is the essence of joint culpability under Section 34. Thus, the essential is the simultaneous agreement of the minds of all involved in the unlawful conduct to achieve a certain objective.

While delivering the judgment in the case of State of Uttar Pradesh v. Rohan Singh (1994), the Supreme Court had noted that the terms “common intention” and “same or similar intention” are not interchangeable. Not only will responsibility alter depending on the nature of the purpose, but so will the character of the conviction and punishment to be handed down. Only when the accused have a “shared intention”, not whether they have a “similar intention”, may Section 34 be employed. 

The decision made by the Apex Court in the 2011 case of Nand Kishore v. State of Madhya Pradesh made it clear that mens rea, as defined in criminal law, is distinct from common intention. Although the common intention may be incidental or ancillary to mens rea, both are different from each other.

Joint liability and free fight : an established relation 

One of the most challenging parts of joint liability law is determining the liability of various members of a group of persons separated into mutually antagonistic or hostile groupings, especially when there is a free fight between them. This is because, in addition to determining the exact involvement of each individual member of the attacking party, the court must also determine if common intention can be proved. The concept of joint liability in the context of the free fight can be understood with reference to the case of Balaur Singh And Others Etc. Etc. vs State Of Punjab And Others (1995). Although the trial court as well as the high court in this case concluded that there was a free fight and therefore each and every individual will be held responsible and guilty of the act committed, the Supreme Court differed from this conclusion. The Court held that in a free fight, the victims and assailants, who are themselves participants or expected participants in the cross assault on each other, it will be difficult to attribute to one of the defendants the intent to cause injuries severe enough to result in death. As a result, the conviction was changed from Section 302 to Section 304 (II), and the punishment was reduced from life to seven years of imprisonment.

Section 34 vis a vis Section 149 of the Indian Penal Code, 1860

Common intention under Section 34 is the foundation of culpability, whereas a common object is the basis of liability in Section 149. Section 34 does not define common intention and is thus unrestricted, but the common object is specified in Section 149 and is confined to the five unlawful objects listed in Section 141 of the Code. Acts under Section 34 must be carried out with a single purpose, but criminal acts under Section 149 must be carried out with a common object. Section 34 requires active engagement, no matter how minor or inconsequential but Section 149, however, simply being a member of an unlawful assembly is enough to bring criminal charges.

The consequence of incorrectly prosecuting a person under Section 149 IPC and afterwards substituting Section 34 does not fatally impair the prosecution case, since the replacement must be regarded to be a formal issue and does not fundamentally affect the prosecution case unless prejudice is given to the accused. This was held in Amar Singh v. State of Haryana (1973), where the conviction for an offence under Section 302 read with Section 34, despite the fact that the accused was charged under Section 302 read with Section 149, was not illegal because the facts proved and evidence adduced would have been the same if the accused had been charged under Section 302 read with Section 34 of the Indian Penal Code, 1860.

Landmark judgments 

Courts have time and again interpreted the legislative intent behind Section 34 of the Indian Penal Code, 1860, in order to break down the provision in simple terms. A list of three cases in recent times has been discussed hereunder, focusing specifically on the ratio decidendi of the same. 

Chhota Ahirwar v. the State of Madhya Pradesh (2011)

A bench of Justices Indira Banerjee and S. Ravindra Bhat of the Supreme Court of India while discussing the case of Chhota Ahirwar v. The State of Madhya Pradesh (2011), made the following observations: 

  1. Only the individual who really commits the crime can be found guilty and sentenced in line with the law, according to established criminal law principles. Section 34 is the only provision that establishes a principle of shared accountability in criminal conduct, the core of which is found in the presence of a common intention, inciting the primary accused to do the criminal act in pursuit of that goal. 
  2. Even when different acts are performed by two or more people in the service of a shared goal, each individual is responsible for the outcome of all the acts as if they were all performed by all of these people. Section 34 is only a rule of evidence that applies the idea of shared criminal culpability, but it does not constitute a separate, substantive offence.
  3. Acting in cooperation is what common intention entails. The existence of a planned plot must be shown either by the accused’s actions, circumstances, or any other damning information. It is insufficient to share the same intention independently of one another.

Nagendran (M.25/16) v. State (2018)

Section 34 of the IPC is not a substantive or separate offence. It is a rule of evidence that establishes vicarious, constructive, and joint culpability and so establishes the norm for criminal conduct committed by a group of people. It establishes a legal exception to the general rule. This has been observed by the Madras High Court in the well-known case of Nagendran (M.25/16) vs State (2018). 

The Court went further to state that the presence of the element of involvement in the crime, rather than a specific overt act, is needed of an accused to draw Section 34. This type of engagement might be construed as facilitation, help, or assistance. The presence of an accused is essential in an act involving bodily harm or violence to attract Section 34 IPC. It would be sufficient to simply be present, even if there was no physical activity. To put it another way, such a presence would imply active engagement. As a result, depending on the circumstances, involvement might be active or passive. The behaviour during the course of the action or at the moment of the last act might be used to determine the previous concert. Even if it is feasible to believe in the reality of a meeting of minds on the spur of the moment, it should be shown. Evidence must be seen as a whole in order to attract Section 34 and thus there is no requirement for first-hand evidence.

Asif Khan v. State of Maharashtra & Anr. (2019)

A bench of Justices K Joseph and A Bhushan had laid down the purpose behind invoking Section 34 of the Indian Penal Code, 1860 while deciding on the case of Asif Khan v. State of Maharashtra & Anr. (2019).

The Court clarified that Section  34 does not say “the common intentions of all” nor does it say “an intention common to all ”. The heart of the culpability, according to the provision, is found in the existence of a common intention energising the accused, which leads to the commission of a criminal act in pursuit of that intention. To successfully invoke Section 34, it must be demonstrated that the criminal act complained of was committed by one of the accused persons in furtherance of the common intention of all; if this is demonstrated, liability for the crime may be imposed on any one of the accused persons in the same manner as if the act had been committed by him alone. 

This being the case, it was clear to the Court that common intention within the meaning of the aforementioned section implies a pre-arranged plan, and that in order to convict the accused of an offence under the section, it must be proven that the criminal act was committed in concert pursuant to the pre-arranged plan. As has frequently been stated, obtaining direct evidence to show an individual’s purpose is difficult, if not impossible; in most situations, it must be inferred from his act or behaviour or other pertinent circumstances of the case.

Conclusion 

Section 34 of the Indian Penal Code, 1860 expresses the concept of joint culpability. This provision just clarifies the notion of shared culpability and does not impose any penalties. This section must be read in conjunction with other provisions of the Code, such as Section 120A, which defines criminal conspiracy, Section 120 B, which provides penalty for criminal conspiracy and Section 149, which deals with unlawful assembly. Section 34 is ineffective on its own, it must therefore be combined with other provisions to render a person jointly accountable for an offence. The idea of joint criminal liability looks to be more of a magical weapon in criminal prosecution. However, the theory not only adds to conceptual ambiguity and clashes with several basic criminal law concepts, but it also goes after the customary scope of command responsibility liability. This is comprehensible if both concepts are used at the same time in instances involving the accused in a superior position.

References 

  1. http://www.legalservicesindia.com/article/1343/Scope-of-Imposing-Joint-Liability-under-Indian-Penal-Code.html#:~:text=The%20concept%20of%20joint%20 liability%20games%20under%20Section%2034%20of,as%20when%20two%20or%20more
  2. https://www.legalserviceindia.com/legal/article-3415-joint-and-constructive-criminal-liability.html
  3. https://www.jstor.org/stable/24863966
  4. https://thelegalvidya.com/joint-liability-under-indian-penal-code/

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Yashwant Sinha and others v. CBI and others : case study

By
Abanti Bose
-
0

This article is written by Smaranika Sen from Kolkata Police Law Institute. This case exhaustively deals with the analysis of Yashwant Sinha and others v. CBI and others.

This article has been published by Abanti Bose.

Introduction

Very few countries have such a diverse inventory of aircraft as the Indian Air Force. Lately, a very crucial case that involved a political controversy regarding an aircraft deal which took place in the history of India. This case is about the controversial Rs 59,000 crore Rafale jet deal. The controversy created huge havoc in the diplomatic situation of the country. Various questions arose in the minds of the citizens. Indications of corruption and favoritism were stated by many opposition leaders and influential people of the country. 

Let us now analyze the landmark case Yashwant Sinha and others v CBI and others(2019) or popularly known as the Rafale jet deal case.

Background of the case

In 2007, the United Progressive Alliance (hereinafter referred to as UPA) government released tenders for around 126 aircraft. The tenders were released based on the demand by the Indian Air Force. 

In 2012, a French company named Dassault Aviation made the lowest bids for Rafale aircraft. The terms and conditions of the sale and purchase of 126 jets were that out of 126 aircraft 18 aircraft were to be imported in fly-away condition and the other 108 aircraft were supposed to be manufactured by Hindustan Aeronautics Limited (HAL) with the assistance of Dassault Aviation. 

Though in 2014, Hindustan Aeronautics Limited and Dassault Aviation signed an agreement, negotiations were also carried out. However, the deal was not finalized. 

In April 2015, during the visit of Prime Minister Narendra Modi in Paris, he announced the buying of 36 Rafale fighter aircraft. Eventually, in June 2015, the Defence Ministry in Rajya Sabha stated about the official withdrawal of the deal of 126 aircraft tender. He also stated that negotiations have begun for the 36 Rafale aircraft deal. 

Finally in January 2016, during the visit of France President Francois Hollande in India, a memorandum of understanding on the sale and purchase of Rafale jets was signed between India and France. India and France had signed this Rafale jet deal for 36 Rafale jets €7.87 million which is approximately Rs 59,000 crore. As per the deal, the delivery of jets would be in fly-away condition and the delivery would start from September 2018. In October 2016, Anil Ambani’s Reliance Defence and Dassault Aviation announced a joint venture. As per the contract, Dassault on obligatory terms was asked to make compensation investments (offset) in India worth 50% of the value of purchase. 

In 2018, a French publication Mediapart interviewed former French President Francois Hollande where he stated that he had no choice in selecting India as an offset partner. He further added that the name of Reliance was given from the Indian side. This did not come good on the part of the Centre. Oppositions started to ask questions and allege various blames regarding the deal. India’s Defence Ministry as a reply to such statements stated that neither of the two governments was involved in the commercial decisions. Dassault Aviation also issued statements stating that it was solely Dassault’s decision to choose Reliance. Congress, on the other hand, alleged the Central Government that the contract which was signed by the Central Government was at a much higher price than it was under UPA rule. Many opposition leaders demanded that the government must reveal the price. 

However, the Central Government refused to disclose the price as it was covered under the Secrecy Clause of the deal. However, prominent opposition leader Mr. Rahul Gandhi claimed that he was ‘personally’ informed by the former France President that the prices could be revealed without jeopardizing the deal. Thereafter, the opposition started to ask several questions on this deal, indicating that there was corruption lying underneath, etc. Several petitions were submitted before the Supreme Court. Let us have a look at those writ petitions.

Facts of the case

Writ petitions

The first writ petition was filed before the Supreme Court by Mr. Manohar Lal Sharma; a practicing lawyer in the Supreme Court. The petitioner prayed for registration of an FIR under relevant provisions of Indian Penal Code 1860, and a Supreme Court-monitored investigation. He further prayed for quashing the Inter-Governmental Agreement of 2016 for the sale-purchase of 36 Rafale jet aircraft. 

The second writ petition was filed by Shri Vineet Dhanda; a public-spirited man in the view of reports and articles published in the newspaper, etc. 

The third writ petition was filed by Shri Sanjay Singh; Member of Parliament. He alleged illegality and non-transparency in the procurement process. He further prayed for investigation and Supreme Court scrutiny in the canceled 126 aircraft deal, price alterations in the new 36 Rafale aircraft deal, and how Reliance can become an offset partner replacing HAL. He also prayed for quashing the 36 Rafale jet aircraft deal. 

The last and final writ petition was filed by Yashwant Sinha, Shri Arun Shourie and Shri Prashant Bhushan; public-spirited Indians. In their prayers, they stated that they were aggrieved because of the non-registration of an FIR by CBI on the basis of the complaint made by them on 4th October 2018. The complaint, according to the petitioners, disclosed prima facie evidence of the commission of a cognizable offence under the Prevention of Corruption Act, 1988. They prayed for registration of the FIR and its investigation and submission of the periodic status of the reports to the Supreme Court.

The fate of these petitions

There were three issues involved. The issues have been stated below:

  • Pricing factor, 
  • Offset factor, and 
  • Whether an investigation was required or not. 

The Supreme Court after detailed observation and scrutiny of the issues stated the petitions stand dismissed. It is so because the Supreme Court believed that there was no requirement for investigation in a sensitive 36 aircraft purchase deal. The reason for such a decision is stated below.

On the pricing issue, the government has given the basic price of Rafale aircraft in sealed covers before the Supreme Court and the Parliament in the view of protecting national security. However, the pricing details have been shared with the Comptroller and Auditor General and have been examined by the Public Accounts Committee. The Supreme Court stated that the competent authority has checked the pricing details even the Supreme Court itself and it has been held that the Supreme Court cannot compare prices as per the prayer and in view of sensitive information, it cannot further state anything in this in the public domain.

Regarding the offset issue, the Supreme Court stated that the media releases and press interviews of the offset issue have been categorically denied by every side. Thus, the Supreme Court cannot make a judicial review when there has been denial on every side and there is no such substantial record that shows commercial favoritism.

It further stated that on the basis of perceptions of individuals, the Supreme Court cannot grant inquiry permission.

A review petition was filed before the Supreme Court by Yashwant Sinha, Shri Arun Shourie, and Shri Prashant Bhushan as a response to the impugned order passed by the Supreme Court on 14th of December, 2018.

Petitioners’ contention

According to the petitioner, the judgment delivered by the Supreme Court was based on the errors apparent on the face of the record and certain subsequent information has come under the light. If such information is not considered, then it will not bring justice. The petitioners further stated that this present petition does not contain the exact same prayer as the first petition, however, they form part and parcel of the present petition. 

The petitioners stated that the judgment given by the honorable Supreme Court is mainly given based on the connected petitions submitted before the Supreme Court. The Supreme Court has stated distinctly on pricing issue, the offset issue, and the inquiry issue, but the Supreme Court had not distinctly stated the non-registration of FIR issue and investigation by CBI. The petitioners further stated that the impugned judgement merely records the prayer of petitioners but does not adjudicate upon the material placed on record and the law for the registration of FIR and investigation as laid down by a Constitutional Bench in the case Lalitha Kumari v. Government of Uttar Pradesh, (2014).

Respondents’ contention

An objection was made by the Attorney General on behalf of the Central Bureau of Investigation and others regarding the maintainability of the review petition. According to the Attorney General, the review petition lacks to be bona fide. The review petitions append three documents that are unauthorizedly removed from the offence of the Defence Ministry and Government of India. The three documents are:

  • An eight-page note written by three members of the Indian Negotiating Team (INT) charged in reference to the Rafale deal (note dated 01.06.2016) 
  • Note­ 18 of the Ministry of Defence(Government of India), F.No. AirHQ/S/96380/3/ASR PC­XXVI (Marked secret under the Official Secrets Act, 1923)  
  • Note­ 10 written by S.K. Sharma (Deputy Secretary, MoD, Air­III), Note dated 24.11.2015 (Marked secret under the Official Secrets Act)                                                                                                                                                                                                                                                                            

The Attorney General stated that the unauthorized removal of these documents and using them to support their pleas are in violation of Sections 3 and 5 of the Official Secrets Act, 1923, and it also cannot be accessed under the Right to Information Act. Even Section 123 of the Indian Evidence Act, 1872 stands in violation.

Observations of the Supreme Court

The Supreme Court observed that three documents which have been alleged by the Attorney General that the petitioners have been unauthorizedly using them were published in a prominent newspaper ‘The Hindu’. The documents were published on different dates in the month of February. Document- Note­ 18 of the Ministry of Defence was also published in ‘The Wire’. The Supreme Court further observed that the three documents which were published in the newspaper were eventually available in the public domain, however, this was not contested by the respondents. 

Whether the newspapers had the right to publish such information

The right of those newspapers and digital print media comes from the Constitutional right guaranteed by the freedom of speech. Even the Supreme Court stated that no laws enacted by the Parliament have barred the newspaper from publishing such information or has restricted the right under Article 19 of the Constitution. The Supreme Court in this regard referred to two landmark cases i.e. Romesh Thappar v State of  Madras(1950) and Brij Bhushan vs. The State of Delhi(1950). 

Claim of privilege

Regarding the issue of claim of privilege, the Supreme Court observed that Section 123 of the Indian Evidence Act relates to unpublished documents. However, it was noticed that the documents were already published in the newspaper. The Supreme Court referred to the case of S.P. Gupta vs. Union of India (1982), where it was held that a claim of immunity against disclosure under Section 123 of the Indian Evidence Act has to be essentially considered in the view of public interest and to satisfy itself that public interest is not put to jeopardize by requiring disclosure the Supreme Court may even inspect the document in question though the said power must be exercised in a sparing manner. However, in the present case, such power is not required as the documents were already available in the public domain. Therefore, the Supreme Court held that the claim of immunity cannot be maintained under Section 123 of the Evidence Act after observing the facts and circumstances of the present case.

Issue regarding the presentation of those three documents before the Court

Another issue that has been stated by the Attorney General is the manner in which those three documents have been procured and presented before the Supreme Court. The Supreme Court again stated that those three documents were already available in the public domain yet even assuming that the documents have not been procured in a proper manner should the same be shut out of consideration by the Supreme Court? The Supreme Court referred to the case of Pooran Mal vs. Director of Inspection(Investigation) of Income­Tax, New Delhi(1974), where it was held that “test of admissibility of evidence lies in its   relevancy unless  there is an express or necessarily  implied prohibition in  the Constitution  or  other  law evidence obtained as a result of illegal search or seizure is not liable to be shut out.” The Supreme Court analyzed that the petitioners have produced the documents before the Court when such documents were already published in the newspapers, therefore, it cannot be determined that the petitioners have procured them in an illegal manner.

Right to Information

Regarding the issue of access to the Right to Information, the Supreme Court referred to the case Chief Information Commissioner vs. State of Manipur (2011) where it was held that the Act was created to promote transparency and enhance the value of democracy. The Supreme Court, therefore held that as the documents in question were already available in the public domain there was no need to restrict them under Section 8(1)(a) of the Right to Information Act, 2005. The said Section bars citizens to access certain information under the Act in the view that might breach the security of the nation and harm the common interests of the public at large. However, the documents have been already published in leading newspapers and have reached all, thus the Supreme Court stated that there was no need to restrict them under the said Act.

Judicial review

The Attorney General also raised a question that there were certain state actions that lie out of judicial review and remain in the political domain. In this regard, the Supreme Court referred to the case of Kesavananda Bharati Sripadagalvaru v. State of Kerala(1973), where it was held “That all Constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the Supreme Courtroom, 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 favor and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to color the decision.” Therefore, the Supreme Court held that the review petition cannot be dismissed on the ground that the fact-in-issue of the case comes under the arena of the political domain.

Judgement

Former Chief Justice Ranjan Gogoi and Justice Sanjay Kishan Kaul finally gave the judgement. They held the objections raised by the respondents dismissed and affirmed that the review petitions will have to be adjudicated on their own merit by taking into account the relevance of the contents of the three documents.

Concurring verdict

Justice KM Joseph started his verdict with the assessment of the freedom of the press. He stressed the fact that the press should definitely enjoy the right to freedom of speech but a lack of a deep sense of responsibility might hamper the democratic value of a country. 

Regarding the claim of privilege under Section 123 of the Evidence Act, he stated that in this case, the documents in respect of which the privilege is claimed are already on record. Now if the issue is dealt with in the manner in which the document has been procured and presented then it can be stated that the case does not strictly involve in a sense the claim for the privilege as the petitioners have not called upon the respondents to produce the original. Even the state does not take objection to the correctness of the contents of the documents. The request of the respondents is to remove the documents from the record. Therefore, Justice KM Joseph observed that in regard to documents that are improperly obtained and which are subject to a claim for privilege, undoubtedly the ordinary rule of relevancy alone may not suffice.

Finally, Justice KM Joseph held that he agrees with the order of Former CJI Ranjan Gogoi.

Deciding the review petition on its merit

Non-registration of FIR

As already stated above, the petitioners have prayed for the registration of FIR. In this regard, the Supreme Court held that after all the observations and analysis, they have come to the conclusion there is no requirement for registration.

Invoking of jurisdiction

The Supreme Court stated that the petitioners on the basis of certain documents have tried to showcase some contradictory materials regarding the deal. However, the Court has held that such contradictions were merely opinions and decisions while the process of making the decision. It further stated that before every decision there always remains debates and discussions and therefore each such debate and opinion cannot be held and inquired differently; rather it would defeat the whole purpose of debate in the decision-making process.

Final judgement

The Supreme Court finally stated that the review petition stands without any merit thus it stands dismissed.

Conclusion

This case is a landmark case and it holds utter importance in the history of India. The case acts as a precedent and gives a binding and persuasive judgement.

References

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