Tag: caseanalysis

Case Citation

1981 SCR (2) 408, 1981 SCC (1) 627

Bench

Bhagwati, P.N.

Decided on

19/12/1980

Relevant Act/Section/Article

Articles 21 & 22 of the Constitution of India, 1950, Sections 50, 56, 57,167, etc. of the Code of Criminal Procedure, 1973.

Introduction

With about 70% of the country’s population living below the poverty line and perhaps more legally illiterate, it will be difficult for the judiciary of the world’s largest democracy to bring justice to everyone. Legal aid and representation are important elements in the legal remedy of wrongdoing by the guilty, and in countries like India, poor living conditions and financial constraints make it difficult to find oneself before the country’s justice system. Lack of representation is common. The provision of free legal aid under Article 39A¹ of the Indian Constitution, introduced by the 42nd Amendment to the Indian Constitution, is encouraged. But the inclusion of such a provision came at the cost of, an insight into, despicable injustices committed in the past.

Facts of the case

Between 1979 and 1980 there were reports that police poured acid into the eyes of 33 pre-trial detainees in Bhagalpur, Bihar. It was reportedly the worst case of police torture and has come to be known as one of the darkest times in independent India’s history. Bhagalpur Blindings case is another name for this case. Prisoners on trial were blinded by the police and brought before a judge, who failed to investigate any injuries intentionally or unintentionally inflicted on the defendant, and the district and session courts judges visited the alleged Bhagalpur Jail only once a year to review prison conditions. The blind prisoners were later admitted to the Rajendra Prasad Eye Institute in New Delhi, but their eyesight was severely impaired and could not be restored by surgery or treatment. Several briefs were submitted to the Supreme Court and the Court decided to hear them all together.

Issues of the Case

• Whether the state was liable to pay compensation to blinded prisoners for violation of the fundamental right under Article 21² of the Constitution.
• Whether the state failed to provide legal representation to the accused.
• Whether the magistrate failed to discharge his duty of offering free legal aid to the
• accused.

Petitioner Arguments

Articles 21 and 22³ require the state to provide free legal aid to all those in need. It is important to ensure that those accused of crimes receive a proper, fair, and just trial. Article 22(1) expressly guarantees an individual’s fundamental right to be represented by an attorney of their choice. Detainees were blinded intentionally and it violated their constitutional right to live with dignity under Article 21. In many cases, the accused were not brought before judicial authorities at their first appearance and remained in prison without judicial authorities ordering pretrial detention of the accused.

Article 21 implies an obligation to compensate a person who has been deprived of life or personal liberty by means other than those provided for by law. As a result, the state is obliged to compensate blind prisoners. Furthermore, it may not be safe for prisoners released from the Eye Institute to return to Bhagalpur. Arrangements should be made to have them housed in New Delhi at the state’s expense.

In some cases, the accused were not handed over to judicial authorities within 24 hours of arrest, which is a violation of Article 22(2) of the Constitution and Sections 56 and 57 of the 1973 CrPC⁴. They also did not investigate prisoners for “eye injuries.” Most of the blind prisoners said in statements to the Registrar that they had never been brought before a judicial officer, implying that the judicial officers merely signed the review order. In other cases, the accused were detained without remand. District and session magistrates did not inspect Bhagalpur’s central prison at any point in 1980. This is in clear violation of Supreme Court rules regarding joint and personal routine visits to prisons by District Judges, Sessions Magistrates, and Chiefs of Police. The independent judiciary fails to protect constitutional rights.

Respondent Arguments

None of the detainees sought legal assistance. As a result, the judge did not ask if he wanted legal representation at state expense. Financial constraints make it difficult for states to provide free legal aid. The state already bears many costs. As a result, it has become financially and administratively impossible to provide free legal assistance to the accused. It is not yet clear that the prisoner was blinded by the police and the investigation is still ongoing. There is currently no evidence that the state violated the victim’s right to life and personal freedoms beyond the judicial process. The defendant’s testimony alone cannot be trusted. It’s just hearsay evidence with no legal basis. An investigation into the pre-trial detention of suspects by police officers is ongoing. Therefore, the conclusion that the state is responsible at this time is not valid. Even if the police blinded someone and there was a violation of the fundamental rights enshrined in article 21, the state could not be held responsible for compensating the victims. There is no indication of improper conduct by the judicial officer. The blind person’s testimony to the Registrar that he was not brought before judicial authorities have not been substantiated. The accused’s unilateral testimony should not be taken seriously.

Judgment

Courts are in the constitutional obligation to provide free legal assistance to the accused at all stages of a trial if the defendant suffers poverty or hardship to achieve the goals of justice., ruled that it failed to do so. The court must inform the third judge and all courts at large that the judicial officer is entitled to render legal aid free of charge to the accused, if necessary, at the cost of instructing the state to pay for it. The court barred draconian action against the accused who failed to appear before a judge within 24 hours and called on state police to step up vigilance going forward. The court also held the state responsible for its egregious encroachment on the lives and liberties of prisoners by the police and ordered the state to compensate the victims, since the police are directly employed by the state and are also the means of the state.⁵

Analysis of the Judgement

The court began its argument by expressing its disappointment that the defendants were not granted or provided legal assistance by the judge simply because they did not request it. In the case of Hussainara Khatoon v. Secretary of the Interior⁶, the court held that the right to free legal advice is a fundamental right of a person accused of a criminal offense even if the defendant can afford it. The Court’s decision, in this case, is a clear law as illustrated by binding case law under Article 14(1) of the Indian Constitution. And the Court has expressed its displeasure that most states in the country have failed to heed its decisions or make efforts in that direction. The submissions made by the state that the financial condition of the state was not good enough to provide legal assistance to the accused, cannot be used as an excuse to avoid responsibility. To back this up, the court in the case of Rhem v. Malcolm⁷ said, “No government is permitted by law to deprive its citizens of their constitutional rights based on poverty.”

It quotes Justice Black in Jackson v. Bishop, who said, “Humane considerations and constitutional requirements are not to be measured by dollar considerations in this day and age.” The court emphasizes that the constitutional obligation to provide free legal aid to an accused applies not only when the trial begins, but also when remand orders are issued and when the accused is presented before the court from time to time. It makes use of the fact that approximately 70% of people living in rural areas are illiterate, and even more are legally uneducated and unaware of their legal rights and entitlements, which compensates for the additional burden on the state and the judiciary to ensure that such people are served justice. The legal aid movement is mentioned, and it is claimed that leaving the practice of rights to the sole efforts of an uneducated populace would make a mockery of the legal system and that legal aid would end up being a mere paper promise. The court orders that prisoners be transferred to the Blind Relief Association of Delhi after they are released from the hospital, as it may not be possible to return them to jail, where their safety may be jeopardized. It also finds that some of the accused were not brought before a magistrate within 24 hours of their arrest, which is a violation of every person’s legal right under Article 228⁸ and Sections 56 and 57 of the CrPC 1973. It is also shocking that the state continues to detain the accused without remand of orders, which violates the personal liberty guaranteed by Article 21.

The court condemns the police for such fundamental violations of arrest and detention rules and warns them not to repeat the same mistakes. As to whether Bihar is responsible for blinding detainees, the court was right for making them accountable that it was because the police officers were public servants in Bihar and were working for the state. The Court was also disappointed to learn that an inspection of Bhagalpur Prison by the District Court and the present court in 1980 had not taken place in violation of Supreme Court rules, and asked the High Court to thoroughly consider the matter and ordered law enforcement to conduct a thorough investigation to ensure law enforcement. The whole judgment is quite impressive and right. The court has given due regard to the principles of natural justice and made decisions that empower the poor and marginalized while bringing the guilty to conviction.

Conclusion

It is one of the most commendable decisions that has been given by the Hon’ble Supreme Court. The decision was made by Justice P.N. Bhagwati, a pioneer in the judicial movement and one of the Supreme Court’s most prominent jurists. This is a brutal and shameful way in which the state police, paid and stationed solely to maintain peace and harmony, and public safety, exercise their power to hold the lower courts wrong. On the one hand, the decision remains as important as it is today, providing a strong precedent and hopefully serving as a strong deterrent against similar events in the future. The ruling strongly supports the provision of free legal aid and brings justice to those who cannot afford it, as the court articulated in the Hussainara Khatun case.

---

References

1. The Constitution of India,1950, Art. 39 A
2. The Constitution of India,1950, Art. 21
3. The Constitution of India,1950, Art. 22
4. The Code of Criminal Procedure,1973, Sec. 56 and 57
5. Khatri vs State Of Bihar 1981 SCR (2) 408, 1981 SCC (1) 627
6. Hussainara Khatoon vs. Home Secretary, State of Bihar 1979 AIR 1369 1979 SCR (3) 532 1980 SCC (1) 98
7. Rhem v. Malcolm, 377 F. Supp. 995 (S.D.N.Y. 1974)
8. The Constitution of India,1950, Art. 228

This case commentary is authored by Jay Kumar Gupta, a student of the School of Law, NMIMS Bangalore, currently in the second year of BBA LL.B.(Hons.).

Case Number

Special Reference No. 1 of 1964

Case Citation

AIR 1965 All 349, 1965 CriLJ 170

Bench

J Takru, G Mathur

Decided on

10 March 1965

Relevant Act/Section/Article

Art. 211, Art. 22, Art. 194, Art. 21, Art. 143

Introduction

The Kesavananda Bharti case is well-known and frequently discussed, yet few people are aware that the Kesavananda Bharti case was assigned to a bench with less than half the judges who decided the Keshav Singh case. It required the combined efforts of numerous justices of the Supreme Court, High Court judges, MPs and MLAs, and ultimately the Prime Minister and the Chief Justice of India to take on this case. One of the most remarkable examples from Nehru’s presidency is this one. This case is of utmost significance to the Indian judicial system, but it has never been talked about.¹

Facts: Who was Keshav Singh?

In the Uttar Pradesh city of Gorakhpur, Keshav Singh was born. He belonged to the socialist party or served in municipal politics. The Congress Party was in power during the time. When a leaflet titled “exposing the shortcomings of Narsingh Narain Pandey” was published, it implied that Pandey, a legislator for the Congress Party, was dishonest. Narsingh Pandey started working on a case against Keshav Singh as soon as he learned about the booklet or leaflet. Pandey and other MLAs from the Congress party disagreed with the leaflet. They claimed that the leaflet violated their right to privacy. When Singh was asked to confirm his name on this issue by the district of the legislative assembly in Lucknow, he remained silent regarding the accusations made against him. When queries were directed at him, he stood with his back to the speaker and stayed silent. On February 19, 1964, Keshav Singh was supposed to go before the assembly and accept a reprimand, but he didn’t because he didn’t have the money to go (according to his excuse). The assembly decided that whatever that couldn’t be achieved amicably would have to be taken by force after Keshav Singh’s defense. On March 14, Singh was apprehended and brought before the assembly. If it weren’t for the decision dismissing Keshav Singh and his attorney’s appeal, the litigation and the issue might have been over at that point.

When the speaker of the legislature keeps asking questions, Singh chooses the challenging course. After then, things started to get worse, and the speaker called Congress MLAs to the assembly. Singh had written to the speaker to protest his conviction, attest to the veracity of the charges made in the leaflet, and denounce the authoritarian nature of the arrest warrant. By entering the home, Chief Minister Sucheta Kripalani imposed seven-day house detention on Singh after the MLAs had enough consensus on the same. The legislature approved a resolution in the format suggested by the chief minister, and Singh was then taken to prison for his one-week sentence. One day before Singh was scheduled to be released after serving his sentence, a lawyer on his behalf submitted a petition to the Allahabad High Court asking for his immediate release. The petition claimed that Singh’s imprisonment was unlawful because the assembly lacked the right to imprison him and because he was not allowed to defend himself after being brought before the court.

Issues

1. Whether or not the Legislative Assembly has no criminal jurisdiction and no authority to punish anyone for its contempt;
2. Whether or not the Legislative Assembly has such authority, the petitioner’s detention is illegal and violates Article 22(2) of the Constitution.
3. Whether or not the Legislative Assembly’s action in punishing the petitioner was malicious.

Observations and Decisions of the Court

The Supreme Court concurred, pointing out that the resolution of the assembly violated the independence of the judiciary. Article 211 was an essential component of the system that allowed courts to make difficult decisions, even if they were wrong, without worrying about political retaliation, therefore it could not be reduced to a meaningless assertion. The Supreme Court ruled that Keshav Singh can be granted bail while awaiting a decision and that the high court has the authority to consider his appeal. The parliament lacked the legal right to order Solomon’s arrest or to ask Justices Beg and Sehgal for an explanation. If the consent of the justice addresses the audience, the drama may compromise the independence of the judiciary. On the other hand, if they show up and make a strong defense, the assembly might be forced to stop acting to avoid being accused of harassing well-meaning judges. The judges have the option of filing a petition with the supreme court, but there was no guarantee that the judges would share the same outcome as the justices who heard the plea. They petitioned the Allahabad High Court, arguing that the assembly’s actions were against Article 211 of the Constitution, which forbids state legislatures from discussing the conduct of any high court or Supreme Court judge. While the case was still pending in court, Justices Beg and Sehgal requested a hold on the resolution against them.²

The court referred to English law, which states that any detention is prima facie unlawful, and the act is justified by the person who ordered the detention. Further, the court held that the appeal was flawed and could only succeed if the petitioner established his or her claims. Prima facie, the detention cannot be considered illegal, and the petitioner must prove that the duty was illegal, the court must decide whether the obligation is lawful. The court does not understand why the defendant should not be allowed to argue that the bond, warrant, and commitments used to detain the petitioner were valid. In any event, the court is entitled to the assistance of the defendant’s attorneys in resolving the issues raised in the case.

Legislature has not yet passed legislation regulating the powers, privileges, and immunities of the House, but the power to do so is granted by Entry 39 of List II of Schedule VII of the Constitution. The powers and privileges of the Legislative Assembly must therefore be determined according to Article 194(3). There is no express or implied prohibition in the Constitution against the Legislative Assembly exercising the privilege enjoyed by the House of Commons to commit for its contempt. The possession of power or privilege The argument is that the House of Commons had a similar penal power and that the inclusion of a separate provision in Article 193 regarding the penal power indicates that the Constitution’s authors did not intend to include any penal power under Article 194 (3). In other words, the argument is that Article 193 encompasses all penal powers conferred on the Legislative Assembly and that no penal power can be assumed as a result of the provisions of Article 194(3). The court didn’t agree with this assertion. Article 193 merely limits the power and privilege of state legislatures to punish people who sit or vote in the legislature without authority, in our opinion. This Article cannot be read as exhaustive of all the penal powers of the State Legislatures to commit for contempt is a judicial power is, in our opinion, not a compelling reason for denying the power to the Legislative Assembly because our Constitution does not provide for a rigid separation of powers. Since, even according to the petitioner’s learned counsel, Article 193 gives the Legislative Assembly the power to punish a person who sits or votes as a member of the Assembly in certain circumstances, which is also like judicial power, it cannot be said that the idea of the Assembly exercising judicial power was abhorrent to the Constitution-makers.

The HC rejected Keshav Singh’s argument that the facts discovered against the petitioner by Parliament did not constitute contempt of Parliament. The HC also ruled that the defendants did not violate Article 21 or natural rights because the Legislatures had established procedures for investigating allegations of violation of privilege. The HC also said the county jail warden is within the jurisdiction to execute the chairman’s warrant. Noting that the provisions of Part III of the Constitution do not apply where Article 194(3) of the Constitution applies, the HC notes that the fundamental rights of Part III are governed by Article 194(3) of the Constitution. The HC also ruled that the applicant was deprived of his liberties following the legal procedure set out in the last part of Article 194(3). Petitioners also argued that Congress’ decision to arrest him was motivated by political animosity and hatred. The Court couldn’t prove it for that reason alone. The Supreme Court dismissed the Keshab Singh case and refused to infer parliamentary malice. In dismissing Keshav Singh’s motion, the High Court said only the House could decide whether there was contempt of the House of Commons in a particular circumstance and that the court had not addressed the question of legality.

While the case is about violations of fundamental rights and constitutional crises, the focus is on symbolic gestures of solidarity by judicial authorities and how they collectively resolve disputes while they exist. It is about upholding the dignity and basic rights of citizens. enshrined in the Indian Constitution. This case highlights the importance of the separation of powers as one of the key building blocks of the constitution and how each can control excesses and respond appropriately. This decision ensured a proper balance of power between the two peers.

The Supreme Court also ruled that Articles 105(3) and 194 should not be used to limit the rights of citizens and lawyers to bring cases before the court. The Supreme Court has ruled that the House of Commons, as the highest court of record in the country, not Congress, can only try someone for contempt with an unwarranted general arrest warrant. The principles of Fundamental Rights and Judicial Review, especially Articles 32 and 226, not only empower but also impose obligations on the Supreme Court and the Supreme Court to exercise fundamental rights. The Indian Parliament and the State Legislatures are entitled to such privileges. As a result, courts may view the House’s implied warrant as a statutory order to punish someone for contempt. The SC not only wanted to recognize that the House has the power to punish insults and violations of privilege. The independence of the judiciary is seriously undermined if the House asserts the right to question the actions of judges. Not only that, the house has the power to punish disrespect and violation of privilege. Before a decision is made, the Privileges Committee will conduct an investigation and allow the complainant to comment.

Conclusion

If it weren’t for several defects and errors in judgment, the conflicts between the high court and the Uttar Pradesh assembly would never have escalated to the extent that they did. It was unusual for Singh’s attorney to enter a plea with only one day left in Singh’s sentence. The judge would have promptly revoked Singh’s bail if the government’s attorney had arrived at the high court at 3 p.m. with a report on the case. The fact that this case shows how readily constitutional institutions can turn against one another and how tough situations are best resolved by statesmanship rather than brinksmanship makes it noteworthy in and of itself.

References

1. Keshav Singh vs Speaker, Legislative Assembly AIR 1965 All 349, 1965 CriLJ 170
2. Atharva Kulshrestha, Keshav Singh – Case commentary,aishwaryasandeep.com(Last Accessed: 09 July, 2022) https://aishwaryasandeep.com/2021/06/07/keshav-singh-case-commentary/

This blog is written by Jay Kumar Gupta, a student of the School of Law, NMIMS Bangalore, currently in the second-year of BBA LL.B.(Hons.).

Case No.

Civil Appeal No. 1013-1015 of 1987

Equivalent Citation

• (1997) 4 JT 124
• (1997) 3 SCALE 1
• (1997) 2 SCR 1086
• (1997) 4 Supreme 388
• (1997) 4 SCC 606

Bench

• Hon’ble Justice K. Ramaswamy
• Hon’ble Justice K. Venkataswami
• Hon’ble Justice G. B. Pattanaik

Decided On

14/03/1997

Relevant Acts

Constitution of India, 1950 – Article 14, Article 15, Article 16, Article 25, Article 26. Uttar Pradesh Sri Kashi Vishwanatha Temple Act, 1983– Section 16, Section 17, Section 18, Section 19, Section 20, Section 20(1), Section 20(2), Section 21, Section 22, Section 22(2), Section 23(2), Section 24(2), Section 25(8), Section 3, Section 4, Section 4(2), Section 5, Section 6, Section 6(1).

Brief Facts and Procedural History

The Supreme Court has received an appeal of the Allahabad High Court’s decision in this case. The two Honorable Justices of the High Court disagreed on whether the Kashi Vishwanath Temple is a place of worship, but they agreed that Parliament has the authority to pass laws governing its administration. The Pujaris commanded pilgrimages, the precincts were filthy, and Lord Shiva’s stolen jewellery was allowed into the premises. A committee was established with the recommendation that the government should seize control of the temple. Accordingly, two ordinances were promulgated one after the other until the Parliament enacted the Act for the management of the temple by the Government.

Issues before the Court

The Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983, which was to manage the temple of Lord Vishwanath, also known as Sri Adi Visheshwara of Kashi, has been questioned for its constitutionality.

The following issues were also up for decision by the Supreme Court:

• Whether Sri Kashi Vishwanath Temple is a denominational temple.
• Do followers of Lord Vishwanath have the constitutionally protected fundamental right to manage their religious affairs and manage the Temple’s assets following the law as guaranteed by Articles 25 and 26 of the Constitution?
• How important and integral are the traditional practices of the religion and religious practice protected by Articles 25 and 26?

Decision

1. Since it does not affect any of the rights of the religious denominations protected by Articles 25 and 26 of the Constitution of India, 1950, the Act passed to manage the temple is constitutional.
2. A denominational temple cannot be found at the Kashi Vishwanath temple. Shaivites are Hindus, and as such, they belong to no particular denomination. They are a part of the religion known as Hinduism. The Act protects the right to participate in ceremonies, rituals, or acts of worship that adhere to long-standing customs. 
3. Although Section 22 is regulated and extends the right to the means of subsistence under Article 21, the rights of those who work as archakas are unaffected.
4. The right to enter the temple, interact with Lord Sri Vishwanath’s Linga, and perform worship there is extended to everyone who practices Hinduism. The Act mandates that the State protect all manifestations of Hindu Lord Vishwanath worship, regardless of whether they are carried out following Hindu Sastras, regional custom, or temple-specific usage.  It is not restricted to a particular sect or denomination.  Shaiva worshipers are Hindus in general and do not belong to any particular denominational sect or group.
5. State regulation may apply to all secular activities that are connected to religion but do not directly relate to it or constitute an essential component of it. However, what constitutes an essential component of religion can be ascertained primarily from that religion’s doctrines following its tenets, historical context, change in evolved process, etc. The concept of essentiality in and of itself does not matter. When determining whether a particular religious matter, practice, or belief is an essential element of the religion, one consideration to make is whether the community as a whole sees the matter or practice as essential.

Analysis

The term “denomination” is extensively covered in this instance. A group that exists as a sect, group, class, or kind and has unique characteristics that set it apart from other groups is referred to as a denomination. The Constitution Bench had to decide on the precise definition of the term “denomination” in The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. It was decided, by the definition provided in the Oxford Dictionary, that the word “denomination” refers to a group of people or a class who are united under the same name as a religious group or body and who are known by a distinctive name. Even though Hinduism has many well-known denominations, not all of these groups are considered to be part of the denomination as a whole.

Every court ruling regarding a temple’s religious affiliation turns on the followers of that religion’s central doctrine. The denomination is not developed in a single day. The rituals will undoubtedly resemble Hindu religious rituals in general. However, that in and of itself is not sufficient to contest the status of a religious denomination. One of the twelve Jyotirlingas is Kashi Vishwanath. Jyotirlingas are worshipped following a predetermined set of rituals.  The temple’s followers provide endowments for such rituals by making donations. The pujaris are now considered to be a class that is a religious denomination for purposes of protection under Articles 25 and 26. Article 14 extracts class legislation. This class shall be accorded equal treatment under Article 14 for rights under Articles 25 and 26. 

The contested Act only affects secular activities; it does not affect religious freedom. The provisions of the Act make it abundantly clear what the purpose of the legislation is. It can only help to enhance the property’s management and upkeep. The Board will have the right to take possession of all real estate, including both movable and immovable property, money, valuables, jewellery, records, documents, tangible objects, and other assets that belong to or are a part of the Temple and its endowments under the terms of Section 13.

In State of Rajasthan and Others vs. Shri Sajjanlal Panjawat and Others¹, it was determined, following the ruling in the Durgah Committee of Ajmer case², that a religious denomination’s right to purchase property is distinct from its right to conduct its own business regarding religion. The former can be controlled by laws that the legislature can lawfully pass, whereas the latter is a fundamental right that cannot be taken away by the legislature.

The management of the endowments and property of the Temple shall be vested in the Board of trust for the deity of Sri Kashi Vishwanath temple. There is no controversy surrounding the selection of unofficial members. It is the appointment of the ex-official member of the board as the member in question. This amounts to the government having direct control over temple affairs. Non-Hindus cannot be appointed as board members, according to Section 3. While section 6 (1) calls for the ex-officio member to be appointed and to be of any religion.  But if ex-officio members are not Hindus, section 6 (3) allows for the appointment of the next available Hindu.

The term “Hindu” is currently undefined. According to the Supreme Court of India, a Hindu may or may not be someone who practices temple worship or professes a religion that originated in India.³ Sikhs, Buddhists, and Jain are all considered Hindus even though they don’t necessarily practice all the same rituals and worship as temple devotees. Hindus are guaranteed the right to enter the temple regardless of their religious affiliation under Article 25(2)(b). Can someone who doesn’t believe in the temple be given to the management of the temple?  Secondly, the non-Hindu official will authorize the Hindu official as a member of the board. Whether a non-Hindu will approve a Hindu’s appointment as a representative? The Act’s single goal is to administer the Temple more effectively and properly. Regarding effective management administration, there is no disagreement. It is only intended to usurp authority for the temple’s management. There are people on the board. These individuals need to be free from governmental control.

It has been decided that the Act protects the practice of Hindu religious doctrines, traditions, and usages.  However, the secular administration of the religious matters in the Temple is a secular component. The legislative branch has the power to impose restrictions on and make interferences with the efficient management of such resources. The Temple is not their property, even though Mahant, Panda, and Archaka are in charge. Simply put, the Act gave the Board control over the Pandas. On the designated day, only the pandas’ management rights were terminated and transferred to the Board for better and more suitable management. Neither does it belong to the State nor was it bought for that purpose. To put it another way, the Board has assumed control over the Lord Sri Viswanath Temple’s management now that the Pandas/Mahant are no longer in charge of it. It cannot be argued that this management change results in the property’s ownership rights being acquired or lost.

Hereditary individuals were in charge of running the temple. In the hands of the appellants, the management could still be carried out properly under the Act. There was no need for the appointment of the ex-officials to the board for the management of the temple. The court determined that managing the temple’s endowments and property, as well as other temple business, is a secular activity and is not protected by the religious freedoms guaranteed by Articles 25 and 26. Because of this, anyone, Hindu or otherwise, can control such activities. The Act only gives Hindus the chance to serve on the board that oversees the temple’s endowments and property and is considered a secular endeavour. Ex-official non-Hindu members who have every right to oversee secular activity are being mistreated.  Because if an activity, is secular, then every citizen of the country shall be eligible to be appointed without any discrimination. If an activity is religious, then it should not be interfered with by the government.

Conclusion

The Temple was managed by the descendants of the Mahant. The Act was enacted only for the excellent management of the temple since there was mismanagement by the descendants. Once the Act is established, it must make provisions for the committee’s creation and hand over management of the temple to the pujaris while making significant provisions for the punishment if mismanagement occurs again.

The case involved an appeal regarding the observance of the religious denomination’s fundamental rights, but it ultimately came down to ownership rights of the property and endowments. The court’s decision thus lies where religious and secular activity is distinguished. To keep balancing on this thin line, either the Act shall be amended to include the non-Hindus for maintaining the secular activities or the court shall include the management of the endowments and property of the temple as religious activity.

References

1. State of Rajasthan and Others vs. Shri Sajjanlal Panjawat and others, AIR 1993 SC 706.
2. The Durgah Committee, Ajmer and Another vs. Syed Hussain Ali and Others, AIR 1961 SC 1402.
3. M.P. Gopalakrishnan Nair And Another vs. State Of Kerala And Others, (2005) 11 SCC 45.

This article is written by Somnath Sharma, a law graduate.

NLIU Cell for Law and Technology and Ikigai Law are organising Policy Case Competition and seeking registrations for the same.

ABOUT

The NLIU Cell for Law and Technology (NLIU-CLT) was constituted at National Law Institute University (NLIU), Bhopal in the year 2019. It aims to create and promote an environment of debate and discussion on issues relating to Technology Law.

The Cell has been continuously taking efforts to engage in a variety of activities to keep up with its vision to be ahead of the curve when it comes to the intricate interactions between technology and legal policy. When it comes to the intricate interactions between technology and legal policy, the Cell wants to be ahead of the curve.

The Cell is excited to organize the second iteration of the Competition this year, which will include participation from law students throughout the nation and abroad. Ikigai Law has consented to be our Law Firm Partner for the same.

This year the Competition will be held entirely in a physical setup. The teams shall be asked to put forth policy proposals that will address the policy questions put before them. The submissions made by them will undergo review by the team at Ikigai and the qualifying teams will be expected to give an oral presentation before a panel of judges.

After the first presentation (Preliminary Round), all participants shall be given detailed feedback pursuant to which they will be given an opportunity to revise their proposal within a day’s time. Mentors shall be provided for the day.

Selected teams shall then present their revised proposals in front of the judges for the final round. The winner shall be decided on the basis of both written submission and final oral presentation.

THEME

Internet Platform Regulation

The internet and large internet platforms are all-pervasive in today’s world. One of the key challenges of our time is to find the sweet spot of regulation that balances user interests, regulatory concerns, and the need to allow innovative businesses to flourish.

These are hard questions that countries all over the world are grappling with at the moment. Participants will be required to suggest a model for platform regulation that is best suited to India. This will involve examining and evaluating approaches to platform regulation across the globe and assessing whether these work for India.

PERKS

• Participants shall be given an opportunity to be a part of the Two Round Table Conferences this year, conducted as part of Techtonic 2023.
• The Round Table Conference shall include panelists who are the corps d’elite of the trade from across the nation and abroad. The Conference shall be graced by academicians as well as industry experts from various renowned law firms who shall present their viewpoints. All the participants of Techtonic shall have the opportunity to witness it on our scenic campus.
• All registered candidates shall have the opportunity to attend an Online Session on ‘How to Write a Policy Proposal’ by Ikigai Law.
• Winners shall have the opportunity to intern with Ikigai Law.
• Various publication opportunities shall be provided to the top ten policy proposals.
• All teams shall get a chance to impress various think tanks and NGOs to land long-term internship and mentoring opportunities on their proposed policies.
• All teams shall have the opportunity to interact with and get mentoring sessions with industry experts from think tanks and law firms.
• All teams shall have the opportunity to interact and collaborate with like-minded peers and colleagues.
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CASE NUMBER

Appeal case filed in Calcutta High Court against the order of acquittal passed by Session Court of Midnapore in trial no 18 of March, 1980.

EQUIVALENT CITATIONS

1984 CriLJ 1535

BENCH

B. Chakrabarthi, J. Chaudhri

DECIDED ON

16 June, 1983

RELEVANT SECTION/ ACT

Indian Penal Code, 1860

Section 90 of the Indian Penal Code states that a consent is not a consent if given by the person under fear of misconception and injury or consent of a person who is of an unsound mind or intoxication unable to understand the nature and consequence of which he has given consent or consent of child unless contrary appears from context if the consent is given by the person who is under twelve years of age.

Section 376 of the Indian Penal Code states the punishment of rape offence except in sub-clause (2) any person proved to commit rape shall be punished with imprisonment that may not be less than seven years but for life or for a term that extends to ten years and also liable with fine unless the women raped was his own wife and is not under twelve years of age, in which he shall be punished with the imprisonment of term extended to two years or with fine or with both. Only in the special case of judgment, the imprisonment would be less than seven years.

FACTS OF THE CASE

It is the case where the de facto complaint is filed against the order of the acquittal passed by the Additional Sessions Judge acquitting the accused charged with section 376 of the Indian Penal Code.

In August 1978, the complainant filed a police report saying that the accused opposite party No. 2, a teacher at the nearby village school, used to visit her home and one day while the complainant’s parents were away from the house, told her he loved her and that he wanted to marry her. The complainant requested that the marriage be consummated. The person is accused of promising to do so and that he would personally secure her parents’ approval. Relying on this promise, she began living with the accused. This cohabitation lasted for a couple of months, during which time the accused would frequently drop by her home at odd hours and occasionally spend the night with her. She eventually became pregnant, and when she requested that the marriage take place as soon as possible, the accused suggested having the child aborted in exchange for agreeing to marry the complaint after the Panchayat elections. The accused eventually abandoned the commitment and ceased coming to the complainant’s house because she had refused to have an abortion. Debra P.S. Case No. 20 was started based on this accusation. The accused asserted his innocence and said that the accusation was brought against him by a political competitor in an effort to extort money from him; the accuser was a woman of easy virtue.

At the trial stage, it was to be seen whether the age of the consent was there and whether the consent was fraudulently obtained by section 90 of the Penal Code. The judge observed that even when there is a whole false promise is given yet the accused is not liable for the rape offence as the consent of intercourse is not given based on the misconception of fact. There is no concept of fake marriage. The accused did not come under the provision of section 376 of Indian Penal Code so the accused was acquitted. The petitioner has filed a revisional application and obtained the rule

ISSUE

1. Whether the girl was below the age of giving consent or not?
2. Whether the consent was obtained fraudulently or using any force or coercion and was hit by section 90 of the Indian Penal Code?

JUDGMENT

During the trial, two questions were asked about the age of the girl; whether the girl was below the age of consent for intercourse or not; and whether there was any fraud in obtaining the consent of the girl or whether the consent of the girl was acquired by the use of any force or coercion. Firstly, on the question of the age of the girl to give consent for this sexual intercourse, it was clear from the trial that the girl was over 16 years old at the time of the commission of the offence by the accused, as claimed by the accused. Regarding the other issue, whether the complainant’s alleged consent fell under the scope of Section 90 of the Penal Code, the learned Judge made the following observation: Given the circumstances of the case, even if it is assumed that a wholly false promise was made, the accused could not be held accountable for the crime of rape because the accused’s consent to the alleged intercourse was not given under a “misconception of fact” as defined by Section 90 of the Penal Code.

His exact finding is “In terms of the Code, a false promise is not a fact. If the accused had ravished the girl while pretending to be the girl’s husband or in a false marriage, the situation might have been different.” The learned Judge concluded that the act done by the accused did not fall under the purview of the Penal Code and, as a result, cleared him of the offence under Section 376 of the IPC. The failure to maintain the promise of marriage does not come under the misconception of fact under section 90 of the Indian Penal Code. In order to come up with the meaning of misconception, there must be proper evidence. This matter would be held differently if there is a belief made that they are already married. If a fully grown girl consents for sexual relationship and the sexual relationship continues until she becomes pregnant it is not an act induced in section 90 of the Penal Code that is the misconception of fact.  The revision application failed.

This article is written by Sree Lekshmi B J; third-year law student of Sastra University, Thanjavur.

Name of the Case

Rural Litigation and Entitlement Kendra & Others v State of Uttar Pradesh

Citation

AIR 1985 S.C. 652, 1985 SCR (3) 169

Year of the Case

1985

Appellant

Rural Litigation & Entitlement Kendra

Respondent

State of Uttar Pradesh

Bench

Justice P.N. Bhagwati
Justice Amerendra Nath
Justice Rangnath Mishra

Acts Involved

Constitution of India, Article 32 and 48A, The Forest (Conservation) Act, 1980, Central Act No. 69, Acts of Parliament, 1980, The Mines Act, 1952.

Overview

This judgment is associated with a previous sentence by the Supreme Court in a similar context. The Apex Court had recognized a writ petition from Rural Litigation and Entitlement Kendra concerning the illicit and unauthorized working of limestone mining in the Mussoorie Hill radius, India. It said that the quarries initiated a peril to a thriving environment and affected the eternal water springs. During the unresolved of the Writ Petitions, the Bench had assigned a committee to analyze the limestone quarries expressed in the Writ Petitions. The Government had also appointed a working batch on the excavation of limestone quarries in the Dehradun-Mussoorie region. On 12th March 1985, the Apex Court consented to a comprehensive order giving several directions and discovering that the particulars of the decision would be embarked in the verdict to trail later. In this decision, although, the court opined that it was not crucial to give any additional reasons which had already been presumed in the decision held by the Bench on 12th March 1985 as the broad grounds had been adequately embarked in that direction.

Facts of the Case

Doon Valley is a division of the Mussoorie hill strings of The Himalayas. The Doon valley region was very prosperous. Various rivers have their origin in Mussoorie hills which made the valley zone ecologically flourish. However, it set off a district for limestone mining and the valley started degrading due to the operation of fulminating, cutting trees, and utmost mining in the 1950s. Limestone mining actions in the Doon valley increased between 1955 and 1965. The action of exploding, for the extraction of minerals, led to a lack of vegetation in the valley. In the 1980s, the valley saw its natural beauty vanishing and experienced floods, high temperatures, landslides, water scarcity, and cropland obliteration.

The State minister of Mines of Uttar Pradesh prohibited mining industries in 1961. However, in 1962, the state government held numerous mining and excavation leases for 20 years and hollowing was happening again. When leases approached for resurrection in 1982, the state prohibited them on the account of ecological destruction. Mining companies expanded despite the decision of the government. Allahabad High Court authorized mining in the Doon valley, evaluating economic benefit over ecological elements. In 1983, a local NGO of Dehradun and RLEK, sent a complaint letter against environmental poverty to the Apex Court. The Supreme Court recorded this complaint under Article 32 as a writ petition. The Court directed the gauging of all current mining actions in the valley. The court also concentrated on the state government-initiated database for the cultivation of the zone.

Issues

1. Whether the Forest Conservation Act, 1980 will be licit in the process of recommencement of leases or not? The leases were resolved to mining industries in 1962 and the Forest Conservation Act was sanctioned in 1980.

2. Whether the mining operations in government forests violated the Forest Conservation Act? The Act prohibited those non-forest operations in forest areas, which do not have the assistance of the central government.

3. Whether environmental conservation should be given priority over the economic help of the country?

Contentions of the Petitioner

1. Environmental demolition in Doon Valley leads to obstruction in the living of citizens, which interrupts their fundamental right to a healthy environment. The right to a healthy environment is under Article 21 of the Constitution, a portion of the Right to Life.

2. Refusal of lease restoration by the public abolished the state’s consent for mining.

3. Forests come under a concurrent list, so authorization of the central government should also be mandatory for mining operations.

Contentions of the Respondent

The Respondents resisted that-

1. The troubling matters should not be evident by the Apex Court, but the administrative constructions of the state under the Environment Protection Act. It should be the affairs of the state’s officials.

2. Respondents asserted that all techniques of mining and quarrying were being moved out by the provisos of the Mines Act of 1952.

3. Mining activities should not be terminated because they are vital in the affairs of the country and the protection of the foreign exchange position of the country.

4. The termination of mines will lead to the redundancy of mine labour.

Judgment

The Central Government had been anxious about the perilous mining activities in the Valley at the aforesaid time when the Apex Court obtained the affair. In 1983, in the Dehradun Valley Litigation file, the Government of India assigned a Working Group to analyze the limestone investigation in the Dehradun-Mussoorie region. D.N. Bhargava, governed both the government’s Working Group and the committee of the court came to aligned conclusions as to the destructive effect of the mines on the surroundings. The Working Group also laid reviews for the court on the restricted mining activities, which were authorized to abide open. In 1986, during the litigation, Parliament sanctioned the Environment Protection Act. Subsequently, the Valley was selected as an organically exquisite portion beneath the Environment Protection Act. Also, the Central Government elected a Doon Valley Board, under the chairmanship of the Minister for Environment, which was entrusted with protecting and restoring contaminated zones of the Valley.

The Supreme Court held that mining in reserved forests in the Dehradun valley violated the Forest Conservation Act. The Forest Conservation Act only prohibited non-forest operations in forest areas that do not have the authorization of the Central Government. Furthermore, regarding ecological integrity and national benefits, the Apex Court was also anxious about the welfare of mine workers and labourers left unpaid by the Dehradun Valley activities. The Court delivered the following:

Mine lessees whose activities were wound-up by the court would be stated as a preference for leases in the new region open to mining. That the eco-task force of the central government, retrieve and reforest the zone vandalized by excavation and that the workers unsettled by mine closure be given preference for jobs with the Eco-Task Force activities in the region.

Concepts Highlighted

The Constitution of India guarantees the privilege of a healthy environment as a fundamental right under Article 21. Industrialization leads to evolution which additionally leads to the deprivation of the environment. The theory of sustainable development has developed over the years that there must be a balance between evolution and ecology. Environmental dishonoring is not right on the pretext of national benefit. According to the socio-economic desires of the nation, administrative and legislative policies for compatible environmental and evolution principles should be intimated. Courts play a very important role in directing the extent of the powers and motives of administrative operations and in evident stability between the environment and evolution.

The necessity of the hour is to maintain an equilibrium between the two. Therefore, the evolution on one edge and pollution permitted environment on the other. The main emphasis should be on the evolution of sustainable living and environmental needs. However, sustainable development is the only way out and administrative measures must follow in accordance therewith.

References

1. The Mines Act, 1952, No. 35, Acts of Parliament, (1992).
2. The Environment (Protection) Act, 1986, No. 29, Acts of Parliament, (1986).
3. Indian Constitution, art 21.

This article is written by Ashmita Dhumas, who has completed BA LLB from Agra College and is doing a diploma in
Corporate Law from Enhelion.

CASE NUMBER

Writ Petition (crl.) 208 of 2004

EQUIVALENT CITATION

AIR 2006 SC 2522; (2006) 5 SCC 475; 2006 (56) ACC 234

BENCH

Justice Ashok Bhan & Justice Markandey Katju

DECIDED ON

07 July 2006

RELEVANT ACTS

The Code of Criminal Procedure, 1951; The Indian Constitution, 1950; The Indian Penal Code, 1860

BRIEF FACTS

The petitioner, Lata, is a 27-year woman who was pursuing her Master’s course in Hindi at Lucknow University. Due to the sudden demise of her parents, she had been living with her brother Ajay Pratap Singh at LDA Colony, Kanpur Road, Lucknow where she finished her intermediate in 1997 and graduated in 2000. The petitioner of her own free will left her brother’s house and married Bramha Nand Gupta at Arya Samaj Mandir. The petitioner’s husband had a business in Delhi and there has been a child out of this wedlock.

On 4^th November 2000, a missing person report was lodged at Sarojini Nagar Police Station, Lucknow by the petitioner’s brother. The police arrested the two sisters (Sangita Gupta, and Mamta Gupta), Rakesh Gupta (husband of Mamta Gupta), and the cousin of the petitioner’s husband (Kallu Gupta). It was alleged that Ajay Pratap Singh, Shashi Pratap Singh, and Anand Pratap Singh (brothers of the petitioner) were furious as the petitioner has undergone an inter-caste marriage. It was further alleged by the petitioner that her brothers have attacked the paternal residence of her husband, beaten up her husband’s mother and uncle, and created chaos in their house. It was also stated by the petitioner that they have cut away the harvest crops of the agricultural field of the petitioner’s husband and sold it and forcibly acquired the field. The Gupta helmet shop of the petitioner’s husband was also forcefully possessed by the petitioner’s brothers. It was further stated that they were threatening to kill the petitioner’s family members and also her.

They also filed a police report alleging the kidnapping of the petitioner against her husband and his relatives at Sarojini Nagar Police Station, Lucknow. On 17^th December 2000, Mamta, Sangita, and Rakesh were arrested while Kallu Gupta was arrested on 2^nd December 2000. Though there wasn’t any case instigated against them, their lives were spoiled. The petitioner went to safeguard her spouse and relatives from her brothers’ persecution. She feared for her and her husband’s lives and approached Rajasthan Women Commission, Jaipur. The Commission recorded her statement and sent it to the Superintendent of Police.

The final report was filed in Sarojini Nagar Police station by the SHO before the learned Judicial Magistrate. On 16^th May 2001, the Sessions Judge granted the petitioner’s husband and his relatives, bail on the personal bond mentioning that no offence has been committed by the accused persons. It was observed that neither was there any offence nor the accused involved in the offence. The SP Lucknow informed the National Human Rights Commission that all the accused were being released from jail on 17^th May 2001.

The Investigating Officer has recorded the statement of Lata Singh on 28 May 2001 where, she stated that she has married Bramha Nand Gupta at her own will and she was not coerced or forced to do so and also, she was provided with armed security. The petitioner’s statement was recorded under Section 164 of Cr.P.C. Despite her statement, the Chief Judicial Magistrate passed a committal order on 15^th October 2001, ignoring the fact that the final report had already been filed by the police. A protest petition was filed against the final report alleging that the petitioner was mentally unfit. On being medically examined by the Board of Doctors of Psychiatric Centre, Jaipur, it was found that the petitioner was not suffering from any sort of mental illness.

The Fast Track Court, Lucknow, issued non-bailable warrants against all four accused, and the accused filed a petition under Section 482 Cr.P.C. in the Allahabad High Court (Lucknow Bench), which was registered as Crl. Misc. No. 520/2003. The High Court ordered the accused to appear before the Sessions Judge, who would determine if an offense was committed. It was alleged by the petitioner that there is a threat to her life. It was further stated by her that there has been irreplaceable damage to her and her husband’s family because of her brothers who had a problem with an inter-caste marriage.

ISSUE

Whether the writ petition under Article 32 of the Constitution of India filed with the prayer to issue a writ of certiorari and /or mandamus to quash the Sessions Trial No. 1201 of 2001 under Sections 366 and 368 of the Indian Penal Code arising out of FIR No. 336 of 2000 registered, maintainable?

JUDGMENT

The Hon’ble Supreme Court allowed the writ petition under Article 32 of the Indian Constitution and the Sessions Trial No. 1201 of 2001 under Sections 366 and 368 of the Indian Penal Code arising out of FIR No. 336 of 2000 was quashed. It was further stated by the court to the police to take action against anyone who threatens or harasses or performs any violence against the petitioner or the petitioner’s husband or relatives of the petitioner’s husband in accordance with the law. It was observed by the court that the Hindu Marriage Act does not constrain anyone from carrying out an inter-caste marriage. In light of the petition’s claims, the criminal procedure was ordered by the High Court to be launched immediately against the petitioner’s brothers and others involved.

CONCLUSION

The case of Lata Singh v. State of Uttar Pradesh & Anr is a landmark judgment that has clarified the validity of inter-caste marriages. It can be observed from the court’s decision that any person who is a major has a right to choose the partner of their choice. It can be further considered to be a part of Article 21 of the Indian Constitution. The act of violence caused by the family members due to the inter-caste or different religion marriage is considered to be a barbaric practice which is unjust as it would be a curtailment of the fundamental right of a person because of some people’s feudal mindsets.

The court further opinionated that a family having a problem with such marriages can stop maintaining social relations with the couple and leave them but they do not have the authority to instigate violence against the married couple for that.  The court stated “In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major, he or she can marry whosoever he/she likes.”

India’s deep-rooted casteism and religionism are obstacles to a progressive nation. It is important to protect the interests of the youth who are carrying out inter-caste or different religion marriages as they pave the way to discard the toxic discrimination present within India. This landmark judgment has clarified that the Hindu Marriage Act does not prohibit inter-caste marriage and it has made it clear that major women marrying outside their caste is not wrong or prohibited by the law.

This article is written by K. Mihira Chakravarthy, 2^nd year B.A. L.L.B. student from Damodaram Sanjivayya National Law University (DSNLU).

CITATION

BLAPL No. 4592 OF 2020

BENCH

Justice S.K. Panigrahi

DECIDED ON

23.11.2020

RELEVANT ACTS

The Information Technology Act, 2000; the Constitution of India, 1950; and the Indian Penal Code, 1860.

BRIEF FACTS

The case’s factual matrix is that both the informant and the petitioner were in love with each other and were village mates along with classmates. Once, when the informant was alone at home, the petitioner took the advantage of the situation and went to her home and raped her, and recorded the heinous crime on his phone. After that, the petitioner blackmailed the informant that if she tries to tell to her parents then, he will kill her and would viral all the photos and videos of the petitioner on the social media account. The petitioner took advantage of the informant’s situation and maintained sexual relations with her. When the informant made her parents aware of the gruesome acts of the petitioner, he created a fake account of the victim and uploaded all the videos and photos on the account with the objective of traumatizing her. When the FIR was lodged, the police were unable to take any satisfactory measures on the said complaint which resulted in portraying the unsoundness of the system.

The learned counsel appearing on behalf of the petitioner contended that since the accused and victim are both adults, they are the best people to decide what is right or wrong. He asserts that the petitioner has an ITI diploma and is looking for employment, therefore his imprisonment will harm his career. He added that the petitioner is sincerely interested in getting married to the victim girl.

The learned counsel appearing on behalf of the informant contended that not only had the petitioner coercively engaged in sexual activity with the victim girl, but he had also cunningly recorded the private encounter and posted it to a fake Facebook account he set up in the victim girl’s name. Since the accused/petitioner is specifically accused of engaging in forced sexual activity against the victim’s will, the claim is quite serious. He further asserts that the case’s inquiry is still ongoing. The petitioner committed significant crimes, according to the entirety of the FIR’s allegations, the statement made under Section 161 of the Cr.P.C.¹ and other documents found in the records. At last, he contended that the victim has suffered grave mental trauma because of the tactics used by the accused.

ISSUES

Whether the victim’s rights, particularly her right to privacy, which is closely linked to her right to have those unpleasant photos erased, remained unanswered even though the Act stipulates criminal sanctions for those who commit such offences?

JUDGEMENT

The court held that although the impact of crime on the victim may vary significantly for the person(s) and case(s), the Indian criminal justice system is more of a sentence-oriented system with little emphasis on the disgorgement of victim’s loss and suffering. For some, the impact of crime is short and intense, while for others it is long-lasting. However, a lot of victims find the criminal justice system to be daunting, perplexing, and complex. Many people are unsure about how to get assistance. As in the present instance, the victim’s rights to have those submitted photographs and videos removed from Facebook’s servers are still unresolved due to a lack of suitable legislation. The court further added that without a woman’s permission, allowing such offensive images and videos to remain on a social media platform is an outright violation of a woman’s modesty and, more importantly, her right to privacy. In such situations, either the victim or the prosecution may, if so advised, seek the proper orders to safeguard the victim’s fundamental right to privacy by having the offensive posts removed from the public platform, regardless of the current criminal procedure.

CONCLUSION

The Court relied on cases decided in the European Union to examine the right to be forgotten issue. The General Data Protection Regulation (GDPR), which regulates the collection, use, and disposal of personal data, refers to the right to be forgotten. In accordance with Article-17 of the GDPR, Recitals 65 and 66, and if the controller has exercised due care, the victim has the right to have such information promptly deleted. Additionally, data controllers must make all necessary efforts to ensure that inaccurate data is deleted or updated as quickly as feasible in accordance with Article 5 of the GDPR. The victim cannot be expected to appear in court each time erroneous data or information is found, the Court noted, especially when the data is within the control of data controllers like Facebook, Twitter, or other social networking sites.

---

CITATIONS

1. The Code of Criminal Procedure 1908, sec 161.

This article is written by Prerna Pahwa, a student at Vivekananda Institute of Professional Studies, New Delhi.

Case Number

Writ Petition (Criminal) 67/2017

Equivalent Citation

(2018) 11 SCC 1

Petitioner

Nikesh Talwar Shah

Respondent

Union of India and Ors.

Bench

Justice R. F. Nariman

Decided on

November 23, 2017

Relevant Act/ Section

Article 21 of Constitution of India, 1949; Section 45, 65 and 71 of Prevention of Money Laundering Act.

Brief Facts and Procedural History

The constitutionality of Section 45 of the Prevention of Money Laundering Act was contested in an appeal. Two requirements are imposed by Section 45 before the bond can be issued. The court must be satisfied that the prisoner was not guilty of such a crime and that he would not conduct any crimes while on release. Additionally, the prosecution must have the opportunity to oppose any motion for bail.

Judicial History

In Hussainara Khatoon v. Bihar State,¹ the Supreme Court was presented with the issues of several sub-treaties whose incarceration periods surpassed the incarceration periods required for the crimes against them. These sub-treaties made up 80% of the jail population. Following, Maneka Gandhi v. Union of India², the Court ordered the release of individuals whose prison terms had surpassed the sentence terms for their offences, in accordance with Article 21. In Mantoo Majumdar v. State of Bihar,³ the Supreme Court upheld the accused’s right to personal liberty once more and ruled that the petitioners should be released on their bail and without any sort of security because they had been imprisoned for six years while awaiting trial.

Issues before the Court

1. Whether Section 45 of the Prevention of Money Laundering Act, 2002 is unconstitutional or not?

The Decision of the Court

The senior attorney, Shri Mukul Rohatgi, argued that Section 45 of the PMLA is manifestly arbitrary, discriminatory, and in violation of the petitioner’s fundamental rights under Article 14 read with Article 21 of the Constitution when it imposes two additional conditions before the granting of the bond. He further stated that the goal was not to refuse bail to people charged with the offences listed in Part B above and that doing so would be discriminatory and a violation of Article 14 of the Constitution because it would amount to treating ‘unequals’ identically.

Additionally, according to skilled senior counsel, the three-year threshold mentioned in Section 45 of the 2002 Act is by itself arbitrary because it only refers to the predicate offence and not to the money laundering offence itself. Regarding the 2002 Act, there is no requirement for the categorization based on the quantity of money that is laundered, which might be a legitimate basis for classification. Furthermore, according to the experienced senior counsel, if the requirements of Section 45(1) are met at the bail stage, the defendants will be required to reveal their defense at a time when they are unable to do so since they were arrested and weren’t given bail at the beginning itself.

The Supreme Court took into account the discrimination brought about by (a) the classification of the offences under Section 45(1) and (b) the application of Section 45(1) to diverse circumstances with respect to the challenge under Article 14. The Supreme Court ruled that a classification based on the length of time spent in jail for a Scheduled Offence had no reasonable connection to the goal of the PMLA, which is to attach and reinvest significant sums of money obtained via criminal activity. Although the court believed that other serious crimes under the IPC (crimes with a maximum sentence of 10 years) that were not specifically mentioned in Part A could also be the source of the money or proceeds, a person accused of such a crime could still obtain bail without the need for an application of the impugned conditions.

Regarding the application of the impugned conditions, the Supreme Court, among other things, held that: Section 45(1) of the PML Act created a situation in which the same offenders in various cases might end up experiencing various outcomes in terms of the grant of bail, depending on whether or not Section 45(1) applied. This was deemed to be especially problematic because the decision to grant or deny bail had no bearing on the money laundering offence under the PML Act; rather, the denial of bail was based solely on the fact that the offence was being tried alongside the offences under Part A.

The contested conditions were arbitrary and discriminatory because they required the accused to prove that they were not guilty of “such an offence” and that they were not likely to commit “any offence” while out on bail. Even though they might demonstrate that they had good reason to think they were innocent of the money laundering charge, an accused was being denied bail for the Scheduled Offence based on the Impugned Conditions. A person might be granted anticipatory bail for the same offence of money laundering and the Scheduled Offence because the PMLA did not forbid the grant of one, but he would then be granted regular bail upon satisfying the conditions of the anticipatory bail.

The Supreme Court briefly addressed the challenge to the conditions under Article 21 after a lengthy discussion on the challenges to the impugned conditions based on Article 14, specifically whether the conditions, which reversed the presumption of innocence, violated the fundamental right to personal liberty. The impugned conditions, according to the Supreme Court, are “dramatic measures that make substantial intrusions into the fundamental right to personal liberty” and can only be supported on the basis of a “compelling state interest in confronting crimes of an exceedingly heinous kind.”

It may be important to note that the Supreme Court was not required to decide whether the contested conditions actually met the requirements of a “compelling state interest,” as it could ex facie invalidate the contested conditions on the grounds that they infringed the accused’s constitutional right to equality. Following the ruling in the Maneka Gandhi case⁴, Article 21 now provides protection not only from executive action but also from legislation that robs a person of his or her life and personal freedom.

While the Supreme Court’s decision, in this case, is significant and the inconsistent nature of the pre-bail conditions under the PMLA provided a compelling argument for their elimination, it may be worthwhile to speculate whether the Supreme Court would have reached the same conclusion regardless of whether the pre-bail conditions were constitutional (especially in cases involving economic offences).

It was clear that the Supreme Court could have reached no other judgement given the scheme of the Scheduled Offences under the PML Act. It is still unclear if an economic offence like money laundering requires severe or harsh provisions like the Impugned Conditions and whether the state has the authority to restrict an individual’s rights in such circumstances. Therefore, the Supreme Court did not specifically consider the justiciability of the pre-bail conditions, such as the Impugned Conditions, in the instance of economic offences.

It was contended that the phrase “there are reasonable grounds to believe that you are not guilty of such a crime” in Section 45 should be interpreted as the Court’s initial determination of a defendant’s responsibility. Second, the wise Attorney General asserts that when the bonus is generally provided concerning offences in general and referred to the State of UP through C.B.I. v. Amarmani Tripathi⁵ for this reason, the requirements stipulated in Section 45 (1) (ii) are there in a different form. The astute Attorney General claims that Section 45 is unarguable when read in accordance with the principle of harmonious construction. Its foundation was Section 24 of the PMLA, which reversibly shifts the burden of proof, and it heavily cited Gautam Kundu⁶.

In the case of individuals charged with fraud in connection with a company’s affairs, take into consideration the provisions of Section 212(6) of the Companies Act, 2013, which also foresees restrictions similar to the impugned conditions. It is highly unlikely that a constitutional challenge to such pre-bail conditions would be upheld on the basis that they are inherently excessive and unreasonable, especially in light of the Supreme Court’s prior declaration that “economic offences need to be viewed seriously and considered as grave offences affecting the economy of the country and posing a serious threat to the financial health of the nation.”⁷ As a result, it is currently unclear and pending court clarification whether the pre-bail requirements (similar to the impugned conditions) are legitimate and justiciable in the context of economic offences.

It was clear that the Supreme Court could have come to no other judgement given the (inaccurate) list of offences included in the PMLA Act. The question of whether economic crimes like money laundering required harsh or contentious conditions and if the state might restrict a person’s rights in such cases is still open.

Pre-bail conditions’ constitutionality was decided by the Supreme Court in the instant case, and inconsistent interpretations of their scope and applicability under the anti-money laundering law presented a compelling argument. It may be worthwhile to analyze if the Supreme Court would have deleted the conditions otherwise fiercely contested except for the ambiguity produced by the Amendment Act, 2012, given the finding about the legitimacy of the conditions prior to bail (particularly in economic crimes).

Citations

1. AIR 1979 SC 1360.
2. AIR 1978 SC 597.
3. AIR 1980 SC 846.
4. AIR 1978 SC 597.
5. (2005) 8 SCC 21.
6. (2015) 16 SCC 1.
7. Rohit Tandon v. The Enforcement Directorate, 2017 SCC online SC 1304.

This article is written by Sanskar Garg, a last-year student of School of Law, Devi Ahilya University, Indore.

Court

Supreme Court of India

Case No.

122 of 1958

Citation

1960 SC 1186; 1969 AIR 395; 1959 SCR Suppl.(1) 806.

Petitioner

Pandit MSM Sharma

Respondent

Sri Sri Krishna Sinha & Ors.

Date of Judgment

12/12/1958.

Bench

Chief Justice Sudhi Ranjan Das.
Justice Natwarlal H. Bhagwati.
Justice Bhuvneshwar P. Sinha.
Justice K. Subbarao.
Justice K.N. Wanchoo.

Facts

The applicant was the Editor of the Patna newspaper ‘Search Light’. There was a dispute in the Legislative Assembly of Bihar when one of the oldest members of the Assembly, M.P.N. Singh directed a speech censuring the Bihar administration, which the Chief Minister, Dr. S.K. Sinha, ran on 30th August 1957. Singh also quoted specific occasions of favoritism. The Speaker of the Assembly grasped that a part of the speech was offensive and directed it to be eradicated. However, no particular direction was designated to the Press. On 31st May, ’Search Light’ the daily newspaper published what had ensued in the Assembly. A prerogative motion was proceeded in the Assembly and cited to the Committee of Privileges. There was no polling and no time restriction was prescribed for the presentation of the investigation report, which was mentioned in the Rules of the House. According to Rule 215, if no time boundaries are endorsed, the report was to be presented within a month. After one year, on 18th August 1958, the applicant got a notice to reveal the cause, that is why no measure should be taken against him for the violation of privilege.

Issues

1. Could the British House of Commons utterly interdict the publication of its events or proceedings of such parts of them, as had been aimed to be eradicated?
2. Presuming that the British House of Commons possessed such strength and inevitably the State Legislature also had such privileges under Article 194 clause (3) of the Constitution, could the rights of the Legislature beneath that Article persuade over the fundamental rights pledged under Article 19 (1)(a)?

Contentions of the Petitioner

The bulletin emanated by the Secretary of the Assembly and the suggested measures of the Committee breached the freedom of speech of the petitioner under Article 19 (1) (a) and it also qualifies as the shielding of his personal freedom and liberty under Article 21 of the Constitution of India. As an editor of a newspaper, the applicant was authorized to the Freedom of Press. The notice presented to the petitioner by the Privileges Committee of the Assembly of Bihar was illicit and unlawful. The Constitution of the Privileges Committee is illegitimate as Bihar’s Chief Minister Dr. S. K. Sinha himself became the Chairman of the Committee.

Contentions of the Respondent

The offenders leaned on Article 194 clause (3) of the Constitution of India. Additionally, they argued that in the British House of Commons, the procès-verbal of the Assembly could not be printed. A speech, portions of which were conducted to be obliterated, cannot be published under any situation. Alike, the publication was an incomprehensible violation of the privileges and rights of the Assembly.

Obiter Dicta

Article 194 clause (3) granted privileges, powers, and immunities that were not explicit in Article 19. Liberty and freedom of the printing press were inferred in freedom of expression and speech, permitted to the Indian citizens under Article 19(1)(a) of the Constitution. At the beginning of the Constitution of India, the British House of Commons possessed the right to interdict the publication of paradoxically fair reports of the arguments and debates & events of the house. Thus, they also possessed the privilege to intercept the publication of imprecise or expunged genres of the debates and the events. The Assembly of Bihar had not furnished any law administering its powers or privileges.

It would be inappropriate to argue that the powers and privileges afforded by Article 194 and Article 105 to the Parliament and the State Assemblies must capitulate to the fundamental rights under Article 19 (1)(a). The provisos of Article 19(1)(a) must capitulate to the provisos of Article 194(1). Article 194(3) scrutinized the rules, enacted by the Bihar Legislative Assembly in the exertion of its powers under Article 208 of the Constitution, which constituted the privileges, power, and immunities of the Assembly. Any seizure of the personal liberty of the petitioner evolving from the parliamentary proceedings shall corresponding to the procedure established by law.

Judgment

Article 19(1)(a) shall be of no aid to the petitioner. Perhaps there might not be any violation of the rights of the petitioner to his liberty and life under Article 21 as well. However, the court directed that according to Article 194 clause (3) of the Indian constitution, the state assembly of Bihar had equivalent privileges, powers, and immunities as compared to the house of common at the dawn of the constitution. Consequently, the assembly possessed the power to interdict the applicant from publishing any portion of proceedings that was by order of the speaker, to be obliterated. The petitioner contended that Article 19(1)(a) of the Constitution predominated over Article 194(3) of the Constitution which signifies that Article 194(3) is subjected to Article 19(1)(a). The court declined this argument on the grounds that the vernacular of Article 194 put through only “clause (1) explicitly to other provisos of the Constitution”. Furthermore, “clause (2) to (4) [of Article 194] had not been expressed to be under the Article. Consequently, it can be presumed that the makers of the constitution did not mean to concern those clauses to other provisos of the Constitution.” Hence, Article 194(3) is not concerned with Article 19(1)(a) of the Constitution.

Therefore, the applicant crashed in resisting that the rights of the Bihar Legislative Assembly were subject to his fundamental right to freedom of speech and expression. The applicant challenged that Article 194(3) is in breach of his fundamental right to freedom of speech and expression under Article 19(1)(a). The Court expressed that a statute proceeded by a “State Legislature in the execution of earlier bit of Article 194(3) will not be a statute in implementation of constitutional rights, but will be one created in implementation of its ordinary legislative powers. Therefore, if such a statute curtails or abridges any of the fundamental rights, it will violate the provisos of Article 13 and it will be revoked.” However, the powers, prerogatives, or immunities of the Legislative Assembly bestowed by the later part of Article 194(3) preferred not to be revoked even if it is in conflict with fundamental rights since “Article 194(3) is the element of the Constitution and as extreme as Part III of the Constitution.” Considering the clash between Article 19(1)(a) and Article 194(3) of the Constitution, the bench opined that “the idea of euphonious construction must be embraced and so construed, the provisos of Article 19(1)(a), which are common, must capitulate to Article 194(3) which are special”.

Rationale

Simultaneously, the Assembly of Bihar had not enacted any law, considering its potential and proceedings the authorities of the British House of Commons were relevant to the Assembly. At the same time, Article 194(3) and Article 105(3) be considered upright in the same sovereign position as the provisos of the Constitution (part Ill) and could not be found clashing by Article 13; the object of euphonious construction must be embraced. Article 194 clause (3) of the Constitution is a peculiar clause. The freedom of the printing press in India glided from the freedom of expression and speech of the Indian citizens. No peculiar right is affixed to the press.

Conclusion

After the predominance of the court, the verdict in the case endorsed above, the Assembly was annulled several times. The Privileges’ Committee overhauled and lately endowed a new notice to the petitioner. The applicant proceeded to the Court looking around to resume the same disputes and arguments. The court carried that the concept of res judicata solicited, and the court’s decree could not be reopened. The decision is irrevocable to the petitioner.

References

1. Constitution of India.
2. Romesh Thappar v. The State of Madras, (1950) SCR 594.
3. Brij Bhushan v. The State of Delhi, (1950) SCR 605.
4. Express Newspaper Ltd. v. The Union of India (1959) SCR 12.
5. Ramji Lal v. Income Tax Officer, Mohindergarh (1951) SCRN127.
6. Laxmanappa Hanumantappa v. UOI (1955) 1 SCR 769.

This article is written by Ashmita Dhumas, who has completed BA LLB from Agra College and is doing a diploma in
Corporate Law from Enhelion.