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Trisha Saxena

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-Trisha Saxena

“There are times when even justice brings harm with it”

-Sophocles in Electra.


John Rawls claims that “Justice is the first virtue of social institutions, as truth is of systems of thought.”The preamble of our constitution promises to secure to all its citizens JUSTICE: social ,economic and political. Social justice refers to creation of equality and solidarity in society . It refers to a society that values human rights and values dignity of every human being. The term and modern concept of “social justice” was coined by the Jesuit Luigi Taparelli in 1840 based on the teachings of St. Thomas Aquinas and given further exposure in 1848 by Antonio Rosmini-Serbati.Social justice is based on the concepts of human rights and equality and involves a greater degree of economic egalitarianism throughprogressive taxation, income redistribution, or even property redistribution. Social justice as a secular concept, distinct from religious teachings, emerged mainly in the late twentieth century, influenced primarily by philosopher John Rawls.

Economic justice is a concept in which the economic policies must result in distribution of benefits equally to all.Economic justice mainly aims at giving freedom to each person to engage creatively in unlimited work. According to the principles of economic justice the jobs created by state and local tax incentives must go to local people and taxpayers without any discrimination.Within the system of economic justice as defined by Louis Kelso and Mortimer Adler, there are three essential and interdependent principles: The Principle of Participation, The Principle of Distribution, and The Principle of Harmony.The principle of distribution defines the “output” or “out-take” rights of an economic system matched to each person’s labor and capital inputs.

The phenomena of political justice is given by Plato and Aristotle. According to Aristotle, “political justice” derives from his discussion of “the just” as a moral virtue derived as the mean between opposing vices, just like every other virtue he describes.

The UN Declaration recognized four major components of rights of victims of crime:

1. Access to justice and fair treatment – Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.

Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:

( a ) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;

( b ) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;

( c ) Providing proper assistance to victims throughout the legal process;

( d ) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;

( e ) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.

Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims.

2.Restitution- Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights.

Governments should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal sanctions. In cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of a community. Where public officials or other agents acting in an official or quasi-official capacity have violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimizing act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims.

3. Compensation – When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to:

( a ) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes;

( b ) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization.

The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including in those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm.

4. Assistance – Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means. Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them. Police, justice, health, social service and other personnel concerned should receive training to sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid. In providing services and assistance to victims, attention should be given to those who have special needs because of the nature of the harm inflicted or because of factors .

Despite such clear guidelines , the victims are not able to get justice in India mainly due to poverty, unemployment, lack of education etc. Imparting justice in a just and fair manner is the essential duty of state through its institutions. Courts are there to protect the rights and the state should check that every individual gets equal opportunity to represent himself in the temple of justice.Cappelletti and Garth point out that the emergence of right to access to justice as ‘the most human basic right’ was in recognition of the fact the possession of rights without any effective mechanism of vindication would be meaningless.

A welfare society can never be achieved unless all the citizens of the state, rich or poor, weak or strong, influential or common are scanned equally by the state. Whenever the state deviates from the notion of equality among its citizens; disparity rages among individuals and the essence of a welfare state is lost.


 Recent defamation Times Now case:- is primarily a tussle between the media and the judiciary over who’s on top.It made news on 19 nov,2011 when Times Now,a news channel was asked to pay Rs 100 crore to a supreme court judge as fine for defamation charges.

The facts of the case were:- While reporting a provident fund scam Times Now had, by mistake, displayed Justice P B Sawant’s image for 15 seconds. The report alleged that several judges were involved in the scam.The channel had run Justice (retd) P B Sawant’s picture instead of another judge in connection with the Provident Fund scam.

After that for 5 days Times Now had shown the apology or regret in a scroll news but it did not satisfy Justice Sawant.Justice Sawant sent the legal notice to the Times Now.After that Pune District Court found Times Now guilty and ordered it to pay Rs. 100 crore.

Then Times Now filed an appeal appealed against the Pune District Court order in the Bombay High Court, Bombay High Court ordered Times Now to deposit Rs. 20 Crore and furnish bank guarantee for the balance.After this Times Now filed appeal in Supreme Court against this order and Supreme Court rejected the appeal and told the Times Now to go to High Court and Pay.

Times Now has to pay huge amount but the main question is:-

if same happens with the common man will he get the damages of Rs. 100 Crore ?

The answer definitely comes in negative. The News Broadcasters Association (NBA) in a statement issued had said, it notes with sadness that the Supreme Court has, in its wisdom, also declined to interfere in the order of the Bombay High Court by summarily dismissing the Special Leave Petition filed by Times Now.

“If innocent errors committed by media, are visited with such dire legal consequences, and if media companies are compelled to pay such disproportionately exorbitant damages, despite the issuance of a public apology, it would effectively cripple the functioning of the media.”

The Editors Guild of India expressed serious and long/short term concerns at the ruling and its implications. “An unintentional error because of a technical mix-up is in a different category from malicious or intentional libel. If inadvertent errors were to be met with punitive fines, it would make it difficult and indeed hazardous for journalists and media organisations to carry out their professional duties.” The response was more towards freedom of expression and the boundaries it creates, allows and demarcates Vs an error.

“The imposition of a Rs.100 crore fine was, in my opinion, grossly disproportionate to the offence.”: Justice Markandey Katju, November 16, 2011, published on The Hindu newspaper

On the occasion of ‘Press Day” newly elected PCI chief, on November 16, 2011 agreed that the financial damage was steep. “We are all human beings and we all make mistakes. In my opinion, the appropriate order would have been to give a severe warning to the TV channel to be careful in future. I have a statement to make regarding the orders of the Bombay High Court and the Supreme Court in the case of the Times Now channel. With great respect to these orders, I am of the view that they are incorrect and require being reconsidered.” said Justice Katju.

 Misuse of matrimonial laws:-

It is a common perception (through the media hype about women’s torture and anti-patriarchal propaganda) that only men are the torturer and women are victims, which is also quite evident from the average physical strength of the duo. The legal torture of men is not an issue of physical strength or abusive behaviour of one party, it is an issue of a legal system, which is designed to do injustice and hand-over powerful tools of torture in the hands of one-section of the society.

Today, there is a growing tendency to convert every marital dispute into a criminal offense of cruelty or dowry harassment. Instead of using family courts, men are dragged to police stations or crime against women cells. When a marriage breaks, there will be pain and a lot of tears for both men and women. These side effects of marriage dispute must not be considered as crime against women.

The duty of Indian police is to fight crime. It is not their duty to work as agents of women to issue threats of arrest, jailing or seizure of passports to facilitate exorbitant alimonies. At a time, when gay sex and premarital sex is considered legal by Government, it is very unfortunate if all marital disputes are considered as crime against women by men and instead of solving these disputes in Family Courts, police threats and draconian laws are used to force out of court settlement.

Indian Supreme Court warned of legal terrorism due to misuse of section 498A and said, “The role of the investigating agencies and courts is that of a watchdog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations.”

Section 498 – A of the Indian Penal Code provides as under:-“Husband or relative of husband of a woman subjecting her to cruelty. – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation – For the purpose of this section, “cruelty” means –

a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

Section 113-A of the Indian Evidence Act, 1872 which too was introduced in 1983 provides as under:-

“Presumption as to abetment of suicide by a married woman. – When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or such relative of her husband.

Explanation. – For the purpose of this section, “cruelty” shall have the meaning as in section 498-A of the Indian Penal Code (45 of 1860).”

Some of the shocking statistics are being reproduced as under:-

1. 363 children were detained in 2005 and 280 in 2006 under the draconian law when they had to accompany their respective mothers (related to husbands otherwise than as wives) in custody.

2. As per the NCRB data, more than 81% people prosecuted under Section 498-A IPC have turned out to be innocent and were either discharged or acquitted. 9% accused were not even challaned by the investigating agencies. The conviction rate was only 10% despite the best efforts made by the litigating wives.

3. Every year 52,000 married men commit suicide in India as against 28,000 married women (source: 2005 – NCRB). The percentage of the married men committing suicides is thus 86% more than the married women.

4. Every year more than 1,00,000 men lose their jobs and become unemployed because of wrongful arrests under the dowry laws.

5. World Health Organisation report on Elder Abuse finds misuse of dowry laws by the daughters-in-law as the main reason for the elder abuse in India.

6. The Supreme Court of India has already termed the dowry laws misuse as “Legal Terrorism”.

7. BBC study indicates that more than 80% women under-trials (related to husbands otherwise than as wives) lodged in Tihar Jail (Delhi) are booked under dowry related laws.

8. 1,20,000 women (related to husbands otherwise than as wives) were arrested in the 4 years (2004 to 2007) under the dowry laws as against the 5,000 women only arrested by the British during the tumultuous decade (1937 to 1947). The Women’s Welfare Ministry is in fact the Wives’ Welfare Ministry.

The above statistics clearly show that these provisions of law have done more harm than good to the society. Experience reveals that whenever a wife files a case under Section 498-A IPC against the husband and other relatives, the chances of her marriage surviving are reduced to minimal. Section 498-A IPC in its present form has proved to be sure tool for destroying the Indian families which are otherwise facing the brunt of western influence and the growing levels of intolerance.

After seeing the plight of increasing number of harassed husbands and their family members, a Public Interest Litigation (PIL) DBCW Petition No.- 2825/05 ARJUN LAL VS STATE OF RAJASTHAN, was filed at Rajasthan High Court, Jaipur bench for demanding such facilities for lie-detector tests by police and state authorities which is currently under consideration.

The judicial recognition of blatant misuse of these laws is not anew, way back in 1987, The Hon’ble Court in BALBIR SINGH VS. THE STATE OF PUNJAB observed:

“Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging. IT IS THE TIME TO STOP THIS UNHEALTY TREND WHICH RESULTS IN UNNECCESARY MISERY AND TORTURE TO NUMEROUS EFFECTED PERSONS.”

Justice J.D. Kapoor (Delhi High Court) said in his order passed on 30th May, 2003

“I feel constrained to comment upon the misuse of the provisions

(of law) to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the health of the society at large.”“There is a growing tendency to come out with inflated and exaggerated allegations, roping in each and every relation of the husband”.

In JASBIR KAUR VS. STATE OF HARYANA : the Punjab & Haryana high Court rightly observed that “an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains on an estranged marriage.”

In KANRAJ VS. STATE OF PUNJAB ,the Hon’ble Apex Court observed:

“for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”

Karnataka High Court, in the case of STATE VS. SRIKANTH observed “Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”

The Hon’ble Supreme Court, in MOHD. HOSHAN VS. STATE OF A.P., observed “Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”

Delhi high Court, in SAVITRI DEVI VS. RAMESH CHAND, categorically stated “These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sisters, sisters-in-law, unmarried brothers, married uncles and in some cases grandparents or as many as 10 o 15 or even more relatives of the husband.”

Punjab and Haryana High Court, in BHUPINDER KAUR AND OTHERS VS. STATE OF PUNJAB AND OTHERS, held:“From the reading of the FIR, it is evident that there is no specific allegation of any act against petitioners Nos.2 and 3, which constitute offence under s.498-A I.P.C. I am satisfied that these two persons have been falsely implicated in the present case, who were minors at the time of marriage and even at the time of lodging the present FIR. Neither of these two persons was alleged to have been entrusted with any dowry article nor they alleged to have ever demanded any dowry article. No specific allegation of demand of dowry, harassment and beating given to the complainant by the two accused has been made. The allegations made are vague and general. Moreover, it cannot be ignored that every member of the family of the husband has been implicated in the case. The initiation of criminal proceedings against them in the present case is clearly an abuse of the process of law”


“The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work.”

The need of the hour is to stop the misuse of justice system. It is imperative we take concrete steps in establishing a foolproof legal system by sifting the chaff from the grain so that no accused is, in reality, the ‘victim’ held in the clutches of law. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot lose sight of its ultimate objective, that is, punish the guilty and protect the innocent.

 Misuse of provisions of IPC:-

Misuse of provisions of IPC are mostly done in consonance with matrimonial laws.For example:

Section 406.of IPC provides for Punishment for criminal breach of trust:-

Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

This section, for offences related to Criminal Breach of Trust, is usually applied in investigation of Stridhan recovery from the husband and his family.Offences under this section are bailable and cognizable.

Section 304B of the Indian Penal Code was inserted by a 1986 amendment. The wording of the law states:Dowry death

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused her death.

Explanation:-For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 ( 28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Section 498A is non-bailable,non-compoundable (i.e. it cannot be privately resolved between the parties concerned) and cognizable.In a case Rani Vs. State of NCT of Delhi Criminal Appeal No. 93 of 2004 ,Indian Penal Code, 1860- Section 304B/ 498A Read With Section 34 .The court held that:-

“Every Suicide After Marriage cannot be presumed to be Suicide due to Dowry Demand”

Criticism by Indian judiciary:-

Supreme court declared 498a as “Legal Terrorism” while giving judgment in matter of Sushil Kumar Sharma Vs. Union of India (UOI) and Ors – Jul 19 2005 (Citation: JT 2005 (6) SC 266).

Criticism outside India:-

Several reports of the abuse of Section 498A have involved couples based outside India especially in the US & Canada. The United States Department of State has published the following travel warning:

“A number of US men who have come to India to marry Indian nationals have been arrested and charged with crimes related to dowry extraction. Many of the charges stem from the US citizen’s inability to provide an immigrant visa for his prospective spouse to travel immediately to the United States.”

The courts sometimes order the US citizen to pay large sums of money to his spouse in exchange for the dismissal of charges. The courts normally confiscate the American’s passport, and he must remain in India until the case has been settled.

In a well publicized case, Dr. Balamurali Ambati, who earned his MD at age 17, and his family were detained in India for over three years in a suit related to alleged dowry demands by the family for his brother’s wife Archana, which delayed Dr. Ambati’s entry to the ophthalmology program for two years, leaving him to begin his residency in 1998. All charges against him were dismissed in October 1996 and all his family members were acquitted in June 1999.During the course of the trial the Ambatis produced a tape in which the father of Archana demanded US $500,000 to drop all the charges although the details of this particular case are still debated in India.

Criticism by Social groups:-

Criticism by Men’s Rights movements:

According to the Men’s Rights movement in India, the laws suffer from the following shortcomings:

 Gender Bias: The laws do not recognize cruelty and domestic violence against men. The police in India almost never registers complaints of extortion or violence against men in a domestic relationship, whereas registering a complaint under 498A (where a woman is the aggrieved party) is widespread.

 Vague definitions of Dowry and Stridhan.

 Presumption of guilt: IPC 304B assumes that if the accidental death of a wife happens within 7 years of marriage, it should be assumed to be murder, unless the husband can prove his innocence.Similarly, the Dowry Prohibition Act (section 8-A) states that “Where any person is prosecuted for taking or abetting the taking of any dowry under Sec. 3, or the demanding of dowry under Sec.4, the burden of proving that he had not committed an offence under those sections shall be on him.”

 Duplication of existing laws: Laws already exist to deal with offences against intimidation, violence, extortion and murder. A “dowry death” can be considered a murder, and a demand for dowry can be considered extortion under existing laws. The additional laws, instead of reforming the police, mostly serve to shift the burden of proof onto the accused.

 A corrupt police force which often does no investigation before arresting innocent people.

 Human Rights violations: In most cases involving Non-Resident Indians, their passports are impounded and they are restricted from traveling outside the country.

 No penalties, in practice, for false complaints or for perjury.

Demands for Amending the law:-

The Malimath committee in 2003 proposed making amendments to this section although such amendments were opposed by Women’s groups.

The Centre for Social Research India has released a research reportopposing amendments to section 498A. According to this report, in the studied cases there were no convictions based solely on section 498A. The report however states that 6.5 percent of the studied cases were falsified. They also state that many people believe the law has been abused by “educated and independent minded women.” A police official asserted that in his district one-third of dowry murder cases were found totally false by the police.

However, on December 17, 2003, the then Minister of State for Home Affairs, I.D. Swami said: “There is no information available with the Government to come to the conclusion that many families in India are suffering due to exaggerated allegations of harassment and dowry cases made by women against their husbands and other family members involving them in criminal misappropriation and cruelty.”

On 20 July 2005, Justices Arijit Pasayat and H.K. Seema of the Indian Supreme Court declared Section 498A to be constitutional.”The object is to strike at the root of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not an assassin’s weapon. If [the] cry of “wolf” is made too often as a prank, assistance and protection may not be available when the actual wolf appears,” the Bench said.

In August 2010, the Supreme Court asked the Government of India to amend the Dowry Laws to prevent their misuse.In February 2011, the Law Commission of India is considering grounds to recommend amendments to IPC 498A.

 Misuse of Constitutional provisions:-

Article 14 of Constitutional law states that:-

“Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”.

But this article is violated in cases where Section155(4) of the Indian Evidence Act, which provides that when a man is prosecuted for rape and if is shown that the woman in question is of immoral character then her evidence will not be taken into account. It may be argued that this provision offers protection to the accused against false allegations of a women whose character is suspect.Yet consider Section 54 of the same Act which states that” In criminal proceedings (including rape) the fact that the accused person has a bad character is irrelevant, unless evidence has been given (by him) that he has a good character, in which case it becomes relevant.” Among other things it says that in cases of rape, the fact that the accused person is a bad character is irrelevant. In effect, for the purpose of proving that men did rape the prosecutrix, it is irrelevant to show that he has a bad character. If the bad character of the prosecutrix is considered in cases of rape, why not the bad character of the accused too?

Misuse of emergency provisions:-

ARTICLE 352- April 28th 1976 is remembered as a black day in the history of Indian democracy. The very foundations of democracy were murdered on this day when the Supreme Court pronounced its judgment in A.D.M Jabalpur Vs Shukla .

FACTS OF THE CASE: The germs of this case were to be found in the election of Mrs Indira Gandhi (the then prime minister of India) which had been held to be invalid by the Allahabad High Court. In her desire to stick to the chair of prime minster she chose to declare a national emergency on 25th June 1975 on the ground of ‘internal threat’ to the security of India. As a result of the emergency, censorship was imposed on the press on 25th June 1975 itself. On 5th August 1975, Maintenance of Internal Security Act (MISA) was approved by the parliament and a number of opposition leaders were detained under this law. Any person who was considered to be a political threat or who could raise the voice of opposition was detained without trial under the MISA. According to Amnesty International, 1, 40,000 persons were arrested without trial during the emergency period. Many of the detained persons challenged their arrest through writs before the High Courts under Article 226 of the constitution of India. As a result of these writs the state governments in many of the High court’s raised the issue that , whether such writs were maintainable on the ground that under the presidential order declaring emergency the right to file such writ was taken away. All the High court’s declared that despite the suspension of fundamental right of a detained person , he could show that his detention was not in accordance with the law under which he was detained or that there was a mistake of identity.The government being unsatisfied with this decision appealed to the Supreme Court .

ISSUE: The main issue before the Supreme Court in this case was:-

Whether the high courts can entertain a writ of habeas corpus filed by a person challenging his detention, during the emergency period?

DECISION OF SUPREME COURT : In view of the presidential order dated 27th June 1975 no person has any locus standi to move any writ petition under Article 226 before a high court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous grounds”.

This was the judgment delivered by four senior, most judges of the Supreme Court including chief justice A.N.Ray.

CRITICAL ANALYSIS : The chief reason behind the filing of this writ petition was the political unrest during that period. Opponents had long made allegations that the congress party had taken recourse to electoral frauds to win the 1971 election. Cases of election fraud and misuse of state machinery for election purposes were lodged in the Allahabad High Court against Indira Gandhi by Raj Narain who had been defeated in the parliamentary election by Indira Gandhi. The Allahabad High Court in its judgment declared Indira Gandhi’s election as void and also unseated her from the Lok Sabha. This decision in course of time became the primary reason for the imposition of the 1975 emergency.

On 26th sept. 1975, the 39th amendment to the constitution was made so as to place the election of prime minster beyond the judicial scrutiny. This was an intelligent step by Indira Gandhi to safeguard her seat.

A close study of the facts behind the filing of this writ petition reveals that it was in fact a case for assertion of political powers by one party over the other.

As a matter of fact it is evident that the majority judgment of Supreme Court in A.D.M. Jabalpur Vs Shukla is to a great extent influenced by the political circumstances prevailing at that time. The supreme court even refused to follow the ruling in Makhan Singh Vs state of Punjab (1964) wherein the supreme court had pointed out that if a detenue challenged his detention on the ground that it violated statutory provision or the detention is vitiated by mala fides the challenge could not be barred because of the presidential order under Article 359(1),

However the 44th amendment to the constitution has substituted the words “armed rebellion” for the words “internal disturbances” and thereby narrowed the scope of emergency situations.Thus in conclusion it is clear that the 1975 national emergency was a pre planned drama of the Indira Gandhi govt. in order to secure certain political objectives.

ARTICLE 356- Article 356 of the Indian Constitution has acquired quite some notoriety due to its alleged misuse. Upon the breach of a certain defined state of affairs, as ascertained and reported by the Governor of the State concerned (or otherwise), the President concludes that the ‘constitutional machinery’ in the State has failed. Thereupon the President makes a ‘Proclamation of Emergency,’ dismissing the State Legislature and Executive.

The Sarkaria Commission Report, 1987

In spite of the precautions laid down in Article 356, the Article was invoked on several occasions by the Center due to ambiguities in its wording. It was only in 1987 when the Sarkaria Commission submitted its report that part of the obscurity surrounding Article 356 was cleared. The Commission, headed by Justice R.S. Sarkaria, was appointed in 1983 and spent four years researching reforms to improve Center-State relations.

Rare use of Article 356 :-The Sarkaria Commission recommended extremely rare use of Article 356. The Commission, after reviewing suggestions placed before it by several parties, individuals and organizations, decided that Article 356 should be used sparingly, as a last measure, when all available alternatives had failed to prevent or rectify a breakdown of constitutional machinery in a State. Before taking recourse to the provisions of Article 356, all attempts should be made to resolve the crisis at State level.

S. R. Bommai v. Union of India

The case was a landmark in the history of the Indian Constitution. It was in this case that the Supreme Court boldly marked out the paradigm and limitations within which Article 356 was to function. In the words of Soli Sorabjee, eminent jurist and former Solicitor-General of India, ‘After the Supreme Court’s judgment in the S. R. Bommaicase, it is well settled that Article 356 is an extreme power and is to be used as a last resort in cases where it is manifest that there is an impasse and the constitutional machinery in a State has collapsed.’

On the other extreme of misuse of Article 356 was the failure of the Union Executive – which was of the same political belief as the Government of Narendra Modi in Gujarat – to invoke Article 356 during the carnage following the Godhra train incident on February 27, 2002, in the State of Gujarat. To quote the words of Fali Nariman, noted lawyer and nominated member of the Upper House (Rajya Sabha) of the Indian Parliament during a parliamentary debate: ‘Vital statistics tells us that there are more than 100000 persons in refugee camps and more than 30,000 people have been chargesheeted. Are these figures not enough to compel the Government to take action under articles 355 and 356?’ Fali Nariman also rightly pointed out in an interview with a newspaper correspondent that the Constitution may not have envisaged a situation where an emergency has arisen in a State where the ruling party is of the same political persuasion as the one at the Center and, hence, the Center might be biased against dissolving that government by invoking Article 356. He also pointed out that the word ‘otherwise’ in the text of Article 356 becomes instrumental in such a situation to allow the President to act without waiting for the ‘Governor’s Report.’

The present situation in India shows that the ‘dead-letter’ provision – as Dr. Ambedkar hoped it would be – has become a frequently invoked, not-so-dead Article; it has been activated more than a hundred times till today.

Another example of misuse of Article 356 was the imposition of President’s Rule in the State of Gujarat from September1996 to October 1996, following the incidents of violence indulged in by members of the Gujarat Legislative Assembly. Soli Sorabjee pointed out that violence within the Assembly cannot be treated as an instance of failure of the constitutional machinery; it would otherwise become very easy for malicious legislators to dissolve a duly elected legislative body by creating pandemonium in the Assembly and thereby prompting improper invocation of Article 356.

This type of emergency has been imposed in most of the States at one time or the other fora number of times. It was in 1951 that this type of emergency was imposed for the firsttime in the Punjab State.In1977 when Janata Party came into power at the Centre, the Congress Party was almostwiped out in North Indian States. On this excuse, Desai Government at the Centre dismissednine State governments where Congress was still in power. This action of Morarji Desai’sJanata Government was strongly criticised by the Congress and others. But, when in 1980(after Janata Government had lost power) Congress came back to power at the Centreunder Mrs.Gandhi’s leadership and dismissed all the then Janata Party State Governments.In both cases there was no failure of Constitutional machinery, but actions were taken onlyon political grounds.

The way President’s Rule was imposed on various occasions has raised many questions.At times the situation really demanded it. But at other times, President’s Rule was imposedpurely on political grounds to topple the ministry formed by a party different from the oneat the Centre, even if that particular party enjoyed majority in the Legislative Assembly.Suspending or dissolving assemblies and not giving a chance to the other political parties toform governments in states has been due to partisan consideration of the Union Government,for which Article 356 has been clearly misused.

 Misuse of torts:-

The law of torts in India has been largely borrowed from the English law of torts.

There have been a number of enactments such as the Public Liability Insurance Act, 1991, Environment Protection Act, 1986, Consumer Protection Act, 1986, Human Rights Protection Act, 1998, Pre-Natal Diagnostics Techniques Regulations and Prevention of Misuse Act, 1994, embodying the new principles of tortious liability in India. The Motor Vehicles Act, 1988 and judicial interpretation continue to contribute to development of accident jurisprudence. The unfortunate Bhopal Gas Leak disaster has triggered a new path of tort jurisprudence, leading to environment tort, toxic torts, governmental torts, MNCs liability, congenital torts, stricter absolute liability, etc. Still the Indian Law Reports furnish in this respect a striking contrast to the number of tort cases before the Courts.

Legal Lacunae in Bhopal Gas Tragedy:-

At that time Indian Law had no provision of punitive damages to effectively deal with the Bhopal Gas Tragedy. the Government decided to approach the U.S. District Court to seek justice.Ironically the government ignored the operating principle in US according to which a suit could be maintainable in an American Court only in cases where the damages or injuries occur on American Soil, to American residents or the dependents of American residents. Alternatively, if the prosecution would have proved a design defect in the plant, the suit could have been entertained by the American Courts. But since it was established that the gas leak happened because of poor maintenance, the parent company was not held liable in the US courts.

A significant order was passed by Justice Deo of Bhopal District court which directed UCC to pay Rs. 350 crores as interim relief. The order being interim could not be decreed. And without a decree UC could and did refuse to pay it.

On February 14, 1989 the Supreme Court directed Union Carbide to pay up US $ 470 million in “full and final settlement” of all claims, rights, and liabilities arising out of the disaster in 1984. The victims and legal heirs of the dead, were not informed before this settlement took place.

None of the courts ever directed UCC to reveal any epidemiological information that it had. It refused to render any toxicological information as it formed an integral part of its “trade secrets”. It denied that the gases released during the disaster could cause any adverse health effects in the victims. Moreover, UCC was never ordered to clear the toxic material present on the disaster site which it could have been under the “polluter pays” principle evolved in Oleum Gas Leak Case.

The SC refused to consider UCC liability as unquestionable and absolute. The principle of absolute liability was never evoked by the SC. According to this theory where an enterprise is engaged in a hazardous or inherently dangerous activity and an accident in such an operation results in the escape of a toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident, and such liability is not subject to any of the exceptions under the rule of strict liability.


However, the development of PIL has also uncovered its pitfalls and drawbacks. As a result, the apex court itself has been compelled to lay down certain guidelines to govern the management and disposal of PILs. And the abuse of PIL is also increasing alongwith its extended and multifaceted use.

Of late, many of the PIL activists in the country have found the PIL as a handy tool of harassment since frivolous cases could be filed without investment of heavy court fees as required in private civil litigation and deals could then be negotiated with the victims of stay orders obtained in the so-called PILs.

Just as a weapon meant for defence can be used equally effectively for offence, the lowering of the locus standi requirement has permitted privately motivated interests to pose as public interests. The abuse of PIL has become more rampant than its use and genuine causes either receded to the background or began to be viewed with the suspicion generated by spurious causes mooted by privately motivated interests in the disguise of the so-called public interests.


As per the latest comprehensive statistics available on prisons in India, there are 1,93,627 undertrial prisoners as against 63,975 convicts constituting 71.2% of the total prison population in India. The range varies from a low of 12.1% in Tamil Nadu to a maximum of 98.7% in Dadra and Nagar Haveli. The most infamous case in India is that of Ajoy Ghose who spent 37 years in prison, till November 1999. He was arrested for murdering his brother in 1962. Subsequently he was certified as insane and after his mother’s death in 1968, nobody came to visit him. Everybody simply forgot him. While he was in prison, the trial judge and all the witnesses died. His life was the ultimate vicious circle. He could not be acquitted unless tried. Since he was legally alunatic, he could not be tried! In November 1999, some group brought him to the notice of the Supreme Court and it took the Chief Justice of India to transfer him from the Presidency jail of Calcutta to the Missionaries of Charity home. Mr. Ghosh’s life is the ultimate sacrifice to the Indian Justice system. Too many people fall into this coil without recourse or ability to get out. Their Right to Speedy Trial as recognised by the Supreme Court in Hussainara Khatoon [I] vs. Home Secretary, Bihar (1980) 1 SCC 81 is violated due to protracted delays. This delay is due to all kinds of reasons such as –

• Systemic delays.

• Grossly inadequate number of judges and prosecutors.

• Absence or belated service of summons on witnesses.

• Presiding judges proceeding on leave.

• Remands being extended mechanically due to lack of time and patience with the

• presiding judge.

• Inadequacy of police personnel and vehicles which prevents the production of all

prisoners on their due dates.

• Many a times, the escorting police personnel merely produces the remand papers in

• the courts instead of actually producing the prisoner in front of the magistrate. This

practice is widely reported, notwithstanding the strict requirement of the law in

• Section 167[2][b] of the Criminal Procedure Code, 1973 [CrPC] which says that – ‘No Magistrate shall authorize detention in any custody under this section unless the

accused is produced before him.’


We have earlier seen the tattered condition of law for undertrials in India but there are some people whose cases law takes on priority basis.

The case of Ambani brothers started in 2006 and ended in may 2010 i.e in three and half years. In the well known 2G case which began in 2007, many present politicians and business houses are involved. But very few have been arrested and the convicted are also getting bail sooner like Kanimozhi ,daughter of karunanidhi got bailed in 193 days. This again makes mockery of Equality before law( Article 14) of constitution.

In India, supreme court judges are appointed by government and also promoted by them so the judges favour the government in cases between government and other party. This can also be a reason for giving importance to the cases of politicians and big business houses.


There are some suggestions for the given problem of misuse :-

1. Providing legal awareness is a task which requires maximum attention. The authorities could provide internships to students studying law or humanities and assign them tasks regarding legal awareness. Every district legal service authority should visit all the schools in its jurisdiction and impart awareness to students regarding various laws. The authorities should adopt innovative techniques like screening of documentary movies, setting up street plays in villages, blocs etc to promote awareness.

2. The strength of the no. of judicial officers working in the state as well as the district legal service authority should be increased.

3. The lawyers appointed by the state legal services to provide legal aid should be paid adequately by the government. This will encourage lawyers and it would also improve the quality of legal aid provided. The high court can set up a pool of lawyers specifically for providing legal aid and pay them monthly salary as given to a judicial officer. It can hold examinations and interview for selection of those lawyers. This will ensure that only well qualified lawyers selected in the pool. Thus, the lawyers won’t have to worry in providing legal aids as they are paid a monthly income by the states but it will also help in improving the quality.

4. State legal service authorities should encourage and provide training to the workers of NGOs in paralegal activities.

5. The scope of public utilities mentioned in section 22 of legal services authority act 1987 should be widen and inter- departmental issues should be given a place. This will help in providing speedy justice in inter departmental issues and would help in curbing pending arrears.

6. Alternative dispute resolution should be encouraged, the inter-disciplinary work of various legal authorities should be monitored carefully thus, maintain coherence.


With a population of just over 1.2 billion, India is the world’s largest democracy.The bulk of citizens in India are still unaware of their legal rights and much less in a position to assert them. And as a result, there was hardly any link between the rights guaranteed by the Constitution of Indian Union and the laws made by the legislature on the one hand and the vast majority of illiterate citizens on the other. Prior to 1980s, only the aggrieved party could personally knock the doors of justice and seek remedy for his grievance and any other person who was not personally affected could not knock the doors of justice as a proxy for the victim or the aggrieved party. Public Interest Litigation as it has developed in recent years marks a significant departure from traditional judicial proceedings. But it has still not been able to reach the most deprived sections of society because of above lacunas in law. The law must be able to reach justice to the poor and the laws must be amended as such to prevent its misuse.



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