Unsettling the “Settled Law”: “Reference” as a progressive Judicial device

Dushyant Mainali

 

“Settled law” is the most used term in legal briefs, court room arguments and finally in the text of the Judgments in almost all the functional legal-judicial systems in the world. The term comes from a judicial concept adopted from common law.  The apposite term in this connotation is “stare decisis” in Latin to mean:- “stand by, on things decided”.

In India, as well, we have adopted a legal tradition of giving highest regard to judicial precedent.  By constant development our judicial system, adopted the concept in order to establish a public belief of consistency in judicial proceedings.  Laws and legal interpretations cannot be stagnant in nature; they keep following the social order. Something desirable to be done today, will certainly not be prolific to be done in future. This is a widely accepted theory, but by no means it’s an absolute one.

Technicality involved in the term “Settled Law”

Technically “Settled Law” means the questions of law regarding interpretation and operation of law have been settled by the Courts. The functioning of Judicial System has dealt on numerous occasions, where any law or provision can have multiple interpretations and certainly more than one. In such cases it becomes difficult to follow the law and implement it properly. Then the difference of opinion arises as contesting parties in litigation claim their interpretation and understanding of law is the correct version. Then the Courts have to become the trendsetter and final interpreters of law to decide upon the questions of law raised in milieu of disputed interpretations of provisions. Then courts’ decisions should act as precedent for further disputes. Thus the term settled law, will connote the question of law on the point has been settled through a judicial process. Settled law evolves over a period of time, gradually. Therefore “settled law” in a broader sense is used to refer to decisions of the higher court which have remained unchanged for a long time but it cannot guarantee to remain unchanged forever

Indian Supreme Court: Unsettling the “Settled Law”

Law has always been progressive and the stretchiest concept governing human society. It changes with shifting times, circumstances and with the new challenges which are mostly unanticipated. Indian Supreme Court has each time accepted this challenge of unsettling the settled law as per the newly faced challenges and situations which arise. The Indian Supreme court has a history of overturning previous precedent, unsettling the settlement of “settled law” itself, time to time.  One can illustrate the prominent question that arose time to time regarding extent of amendment of the constitution of India the Parliament can carry out. The Hon’ble Supreme Court of India held it differently in different cases till it settled law in this context in Kesavananda Bharati[1] case. In Kesavananda case, the Supreme Court finally held that parliament can amend the constitution but it cannot destroy the basic features of the constitution. Therefore, as on the date, it is the settled law on this question as a larger bench of 13 Judges constituted in the Kesavananda case settled law therefore its binding on all and being large bench it overruled the decisions of smaller benches. The Indian Supreme court has a history of overturning previous precedents, unsettling the settlement of “settled law” itself time to time.

As per our Constitutional framework the Supreme Court of India is not infallible, but is final in the sense that the verdicts delivered by it are binding in nature, they are law of the Land as per Article 141[2] of the Constitution of India.

As changing times require the adequate change in the applicable law over some subjects. It would be a grave miscarriage of justice if Supreme Court pronouncements could not be overturned in later times.  Various Judicial contributions including the expanded interpretation of Article 21 in terms of Right to Life and Personal Liberty would never have been possible, without the Supreme Court’s power to revisit stand taken by it in the past.

Even before completion of the first decade since independence, in 1955, in Bengal Immunity Co. v State of Bihar[3], the Supreme Court expressed the opinion that it was not bound by its earlier judgments; it could re-evaluate its own previous decisions to keep pace with the needs of changing times.

A five-judge bench of the Supreme Court in Central Board Of Dawoodi Bohra v State Of Maharashtra & Anr[4], while discussing the legal propositions relating to judicial discipline, held –

“12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:-

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co- equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co- equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions : (i) The above said rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh & Ors. and Hansoli Devi & Ors.(supra).”

Very recently on September 6th 2018[5] Supreme Court of  India heaved the attention of  both the conventional and progressive sections of world while it overturned its own judgments on homosexuality and declared that:-

“it is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons  above the age of 18 years who are competent to consent) in private, is violative of Articles 14,15 19, and 21of the Constitution.”

The Supreme Court in this case has made a gratifying endeavor of putting the law at pace with the modern liberal society. Para 19 of the Judgment observing about constitutionality of a provision gives a undertone of the principle of capsizing itself:-

“…presumption of constitutionality is merely an evidentiary burden initially on the person seeking to challenge the vires of a statute and once any violation of fundamental rights or suspect classification is prima facie shown, then such presumption has no role”

Relying on the theory propounded in said para 19 of the Judgment the Apex Court has held:-

“The judgment in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors[6].is hereby overruled for the reasons stated in paragraph 19”

 

This trendsetting of unsettling the settled law, with times and with coming circumstances has changed the Judicial values treating the Statutes and the Constitution as a breathing entities, whose meaning and interpretation may change with times and circumstances.

If the Supreme Court were to be bound and estopped completely by its past pronouncements, then there would be no need for new modern viewpoint or development of law.

“Black-letter law” and “Settled law”

As per the Oxford reference[7],  black letter laws, in common law legal systems, are the well-established legal rules that are no longer subject to reasonable dispute. In an 1831 case in the U.S. Supreme Court, Jackson ex dem. Bradstreet v. Huntington, the phrase “black letter” was used: “It is seldom that a case in our time savours so much of the black letter; but the course of decisions in New York renders it unavoidable…”[8]  The phrase “black-letter law” was also used in the Pennsylvania Supreme Court case  Naglee v. Ingersoll[9].  Although used in 1831 and 1847 cases, at the first instance the phrase “Black Letter Law” has a chance of being misunderstood with the reference of Black’s Law Dictionary, which was first published in 1891.

 

The phrase has its historic roots to the practice of setting law books and citing legal precedents in black letter type, a tradition that had continued to exist long after the change to Roman and italic text for other printed works specially the bold black fonts which we use to highlight something.

“Doctrine of Stare Decisis” and “Settled Law”

English system of precedent is based on the Latin maxim signifying the Principle of Judicial discipline :-stare decisis et non quieta movere, which means to stand by and adhere to decisions and not disturb what is settled. Word ‘stare decisis’, connotation of binding judicial precedent, fixing parameter, if any, for making reference to a larger Bench are all devices evolved by the Courts for maintaining its own judicial discipline, modesty and propriety and to maintain its judicial comity.

This natural concomitant of inbuilt judicial discipline gives stability and uniformity in the application of law both to the issue and Courts. This keeps Courts within its bound and in spite of different opinions; adverse results for themselves the litigants follow this procedure with respect. Otherwise any settled law could be unsettled any day, making it difficult to follow, budding the judicial chaos.

In a signpost English judgment the fêted words of  Bukley, J. in Produce Brokerers Co. Ltd. v. Olym-pia Oil & Cake Co. Ltd[10],: explaining the significance of the policy of binding precedents:-

“I am unable to adduce any reason to show that the decision which I am about to pronounce is right. On the contrary, if I were free to follow my own opinion, my own powers of reasoning such as they are. I would say that it is wrong. But I am bound by authority — which, of course, it is my duty to follow — and following authority, I feel bound to pronounce the judgment which I am about to deliver.”

In India as well, naturally the self discipline rule of ‘stare decisis’ is followed by the Judges in administering justice. But this in no way is stumbling block for the development and progress of law.

As per the principle of binding judicial precedent not only decision of higher Courts are binding on the Courts lower in hierarchy, even in the same Court it binds Bench of lower number of Judges even to equal number of Judges of coordinate jurisdiction. Thus judgment of a Division Bench is binding on subsequently assumed Division Bench of co-ordinate jurisdiction (equal number of Judges). It cannot decide contrary but has an option with judicial sanction to refer it to a larger Bench.

Thus, the principle of ‘stare decisis’ or binding judicial precedent is well settled. This is more effective in the Indian Courts. As the American Supreme Court of State sits in one Bench (All the Judges sit together) there is no difficulty of conflicting judgments coming from different rooms of the same court building, but in our Courts, with the heaviness of work, the distribution of cases to Benches of different Judges, this principle has been adopted and followed for maintaining judicial decorum, propriety and discipline and also, for not unsettling the well settled law by each individual view unless it is overruled by the higher Court or a larger Bench.

“Reference” as tool of advancement of law and the “Settled Law”

“Reference” has been the most vital judicial tool for unsettling the previously settled law in India. Without “Reference” the flexibility of judicial dictums will not be possible. It is well settled that no one is flawless including the Judges rendering judgments and settling legal positions. Therefore, while maintaining the austerity of  binding judicial precedent, if such judgment is perpetuating, continuing injustice, the error of which is apparent on the face of record or against any previously binding judicial precedent, against any constitutional or statutory provisions, contrary to any settled principle of law or even with the change of social framework requires reassessment being of public significance, to set the things back on the right track another equally important principle is advanced by referring such matters to a larger Bench via Reference.

Even where the Benches of coordinate jurisdictions having a different view of any earlier such Bench, the proper course open is to request the Chief Justice to refer the matter to a higher Bench or to constitute a larger bench.

Both principles of ‘stare decisis’ and instrument of ‘reference’ are not contrary but complementary to each other, evolving and developing the law with only aspire of rendering justice. All methods, principles, procedures created by Courts to deliver justice to the subjects. In this respect there are catena of authorities  by Indian Courts which promote reference in case of conflicts and difficulties in applying binding precedent. A perusal of judicial patterns over the subject will elucidate the scenario and surroundings of scope of Reference.

 In Tribhovandas v. Ratilal[11] Hon’ble Supreme Court held:-

“(7). Before parting with the case, it is necessary to deal with certain questions of fundamental importance in the administration of justice which the judgment of  Raju. J. raises. The learned Judge observed –

(1) that even though there is a judgment of a Single Judge of the High Court of which he is a member of or a Division Bench of the High Court, he is not bound to follow that precedent, because by following the precedent the Judge would act contrary to S. 165 of the Indian Evidence Act and would also violate the oath of office taken by him. When entering upon his duties as a Judge under the Constitution: and

(2) that a judgment of a Full Bench of the Court may be ignored by a single Judge, if the Full Bench judgment is given on a reference made on a question of law arising in a matter before a single Judge or a Division Bench.  Such a judgment, according to Raju. J. would “not be a judgment at all” and “has no existence in law.”

“(8) The observation made by the learned Judge subvert the accepted notions about the force of precedents in our system of judicial administration. Precedents, which enunciate rules of law form the foundation of administration of justice under our system. It has been held time and again that a single Judge of a High Court is ordinarily hound to accept as correct judgments of Courts of co-ordinate jurisdiction and of Division Benches and of the Full Benches of his Court and of this Court, The reason of the rule which makes a precedent binding lies in the desire to secure uniformity and certainty in the law.”

In Bhagwan v. Ram Chand[12] the Apex Court held:-

“It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to he reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the mailer to a Division Bench, or- in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety.”

In this case Supreme Court deprecated and did not approve learned single Judge deciding a case against principle of Division Bench.

To the same consequence is Union of India v. Godfrey Philips India Ltd[13] giving effect to the same principle.

“….. We find it difficult to understand how a Bench of two Judges in Jeet Ram’s case could possibly overturn or disagree with what was said by another Bench of two Judges in Moti Lal Sugar Mill’s Case. If the Bench of two Judges in Jeet Ram’s case found themselves unable to agree with law laid down in Motilal Sugar Mill’s case they could have referred Jeet Ram’s case to larger Bench, but we do not think it was right on their part to express their disagreement with the enunciation of the law by a co-ordinate Bench of the same Court.”

To the same effect is State of W. B. v. Falguni Dutta[14].

“4. We may incidentally mention that when the learned single Judge was disinclined to follow the earlier two decisions of other learned Single Judges of the High Court the proper course was to refer the matter to a Division Bench for decision.”

D. K. Yadav v. J. M. A. Industries Ltd[15].  holds, once an authority to the law is laid down the same should he followed as a binding precedent, but the only alternative is, in case of difference, to refer it to the larger Bench (at p. 1999 of AIR ):–

“…..It is settled law that an authoritative law laid after considering all the relevant provisions and the previous precedents, it is no longer open to be re-canvassed the same on new grounds or reasons that may be put forth in its support unless the Court deemed appropriate to refer to a larger Bench in the larger public interest to advance the cause of justice.”

In Mohar Singh v. Devi Charan[16]  

“That was a decision which the learned Judge in the present case should have considered himself hound by unless there was a pronouncement of a larger bench to the contrary or unless the learned Judge himself differed from the earlier view in which even the matter had had to go before a Division Bench.”

In Union of India v. Raghubir Singh[17] relying on Privy Council the Hon’ble Apex Court held:

“21….. the position in India approximately more closely to that obtaining in the United States rather to the position in England where Parliament could rectify the situation by a simple majority, and to that in Australia, whore the mistake could he corrected in appeal to the Privy Council. The learned Judge observed: — “There is nothing in our Constitution which prevents from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public.”

“28. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repealed affirmation over a century of time. … the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges.”

In a nineties Judgment Sunderjas Kanayalal Bhathijia v. Collector, Thane[18] Hon’ble Supreme Court held:-

“One must remember that pursuit of the law however, glamorous it is, has its own limitation on the Bench. In a multi-judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure. In our system of judicial review which is a part of our constitutional scheme, it is the duty of judges of superior Courts and tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches; The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the Courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Subordinate Courts would find themselves in an embarrassing position to choose between the conflicting opinions. The general public .would be a dilemma to obey or not to obey such law and it ultimately falls into disrepute.”

In the same year holding the same principle in Shridhar v. Nagar Palika, Jaunpur[19] :-

.

“3….. as has been reiterated in a number of decisions of this Court that if a single Judge, disagree with the decision of another single Judge, it is proper to refer the matter to a larger Bench for an authoritative decision. But in the instant case the learned Judge acted contrary to the well established principles of judicial discipline in ignoring those decisions.”

Although Courts have been reluctant in overturning the Judgments easily  as in  Distributors (Baroda) Pvt. Ltd. v. Union of India[20]

“19. But, even if in our view the decision in Cloth Traders case is erroneous, the question still remains whether we should overturn it. Ordinarily we would be reluctant to overturn a decision given by a Bench of this Court, because it is essential that there should be continuity and consistency in judicial decisions and law should he certain and definite. It is almost as important that the law should be settled permanently as that it should he settled correctly. But there may be circumstances where public interest demands that the previous decision be reviewed and reconsidered. The doctrine of stare decisis should not deter the Court from overruling an earlier decision, if it is satisfied that such decision is manifestly wrong or proceeds upon a mistaken assumption in regard to the existence or continuance of a statutory provision or is contrary to another decision of the Court.”

These authorities reflect that binding judicial precedent means a decision of the higher Bench is binding on the lower bench and even on a later co-ordinate Bench of equal number of Judges. The later such Bench cannot decide contrary to the earlier such Bench and in apt case of need of revisiting any settled law it may refer it to the higher or larger bench to settle the conflict of opinion arose over any legal issue by two or more contradictory judgments.

Defining, parameters of Reference: Judicially Settled Modalities

Despite being the most imperative tool in the development of law, Reference, has judicially been advised to be used restrictively and not frequently especially by the High Courts. The difference carved out between High Courts and Supreme Court, in making Reference, is to be judged from different perspective as- there is no further right to appeal in Supreme Court, while reference by High Court has to be restrictive as there is right of appeal against its decisions. What parameter the High Courts and Supreme Court have laid down for making Reference is interesting to note.

In State of Punjab v. Surinder Kumar[21] it has been held:-

“6. … .It is, therefore, futile to suggest that if this Court has issued an order which apparently seems to be similar to the impugned order, the High Court can also do so. There is still another reason why the High Court cannot be equated with this Court. The constitution has, by Art. 142 empowered the Supreme Court to make such order as may be necessary “for doing complete justice in any case or matter pending before it”, which authority the High Court does not enjoy. The jurisdiction of the High Court, while dealing with a writ petition, is circumscribed by the limitations discussed and declared by the judicial decisions, and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge.”

In one earlier Judgment of Punjab and Harayana High Court in  pritam kaur v. surjit singh[22], the following passage specifies the parameter of reference:

“The reference was answered in these terms, “it would follow as a settled principle that the law specifically laid down by the Full Bench is binding upon the High Court within which it is rendered and any and every field doubt with regard thereto does not justify the reconsideration thereof by a larger Bench and thus put the law in a ferment afresh. The ratio of the Full  Benches are and should be rested on super foundations and are not to be blown away by every side wind. It is only within the narrowest field that a judgment of a larger Bench can be questioned for consideration. One of the obvious reasons is where it is unequivocally manifest that its ratio has been impliedly overruled or wittled down by a subsequent judgment of the superior Court or a larger Bench of the same Court. Secondly, where it can be held with certainty that a co-equal Bench has laid down the law directly contrary to the same, and, thirdly where it can be conclusively said that the judgment of the larger Bench was rendered per in curium by altogether failing to take notice of a clear-cot statutory provision or an earlier binding precedent. It is normally within these constricted parameters that a similar Bench may suggest a reconsideration of the earlier view and not otherwise. However, it is best in these matters to be neither dogmatic nor exhaustive yet the aforesaid categories are admittedly the well accepted ones in which an otherwise binding precedent may be suggested for reconsideration.”

In  Pritam Kaur’s case (Supra) where learned single Judge doubted the decisions of earlier Full Bench, yet the Court with caution only expressed the anxiety as :-

“…does not justify the reconsideration by a larger Bench the law specifically laid down by the Full Bench; the ratio of Full Benches “are not to be blown away by every side wind.” “it is only within the narrowest field that a judgment of a larger Bench can be questioned for reconsideration.”

In substance Allahabad High Court in Rana Pratap Singh v. State of UP[23] adopts reasoning and the parameters as laid down in the case of Pritam Kaur (supra), which is quoted in paragraph 15 of the judgment. The parameters, as laid down, are as following:

(a) On every veilded doubt with regard to the law laid down by a Full Bench does not justify reconsideration by a larger Bench;

(b) Where it is unequivocally manifest that the raito of Full Bench has been impliedly or directly overruled by the superior Court or larger Bench of the same Court, reference could be made:

(c) Where co-equal Bench has laid down law directly contrary to each other, reference could be made:

(d) The judgment of a larger Bench is rendered, by failing to take note of a clear-cut statutory provision or earlier binding judicial precedent, reference could be made.

Thus as per the Judicial precedents , the device of reference has to be used as Brahmhastra was used in Indian Mythological sagas. In Ambika Prasad Mishra v. State of U. P.[24], a Constitution Bench of  Hon’ble Apex Court held that every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent. It does not lose its authority ‘merely’ because it was badly argued, inadequately considered and fallaciously reasoned. Distinguished Krishna lyer.J. recorded it as: “Every new discovery or argumentative novelty cannot undo or compel reconsideration of a judicial precedent.”

The Judicial anxiety has been not to unsettled a settled law on personal sentiment and view of Judges. Courts are conscious that  in every oblique doubt or casually no reference should be made for unsettling a settled law.

It is unambiguous; References are to settle the law correctly. It does not set aside earlier case ruling. When precision of an earlier decision is doubted, whether it is open to a subsequent Bench of coordinate jurisdiction to refer the matter to a larger Bench to resolve the controversy authoritatively? Thus all the discussed catena of decisions points out that in the case of difference of laws settled in judgments, demureness lies in making the Reference to a larger Bench and it is not open either to a single Judge or a Bench of co-ordinate jurisdiction to embark upon taking a different view in a matter, and unsettled the things already settled by their coordinate jurisdictions.

In Bengal Immunity Company Limited v. State of Bihar[25], a seven Judges Bench of the Supreme Court assembled to consider whether the majority decision State of Bombay v. United Motors (India) Ltd.[26] Should be reconsidered and then in the majority decision, the Supreme Court observed :

“There is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public.”

In this case the Supreme Court referred to the far reaching effect of the earlier decision in the United Motors (supra) on the general body of the consuming public, and concluded that the error committed in the earlier decision would result in perpetuating a lax burden erroneously imposed on the people, giving rise to a consequence “manifestly and wholly unauthorised.” The Court further observed:

“that if the decision is erroneous, as indeed we conceive it to be, we owe it to the public to protest them against the illegal tax burdens which the State are seeking to impose on the strength of that erroneous recent-decision.”

Thereafter the Hon’ble Supreme Court further cautioned that

“we should not lightly dissent from a previous pronouncement of this Court.”

In this case Hon’ble Supreme Court said, if the previous decision was manifestly erroneous, there was a duty on the Court to say so and not perpetuate the mistake. The appeal to the principle of stare decisis was rejected on the grounds that:-

(a) the decision intended to be overruled was a very recent decision and it did not involve overruling a series of decisions, and

(b) the doctrine of stare decisis was not an inflexible rule, and must, in any event, yield where following it would result in perpetuating an error to the detriment of the general welfare of the public or a considerable section thereof.

The test laid down in Bengal Immunity Co. Ltd. (supra.) was that where an order has far reaching effect and is followed that would result in perpetuating an error to the detriment of general welfare of the public, then the Court owed a duty to the public to remove-the error, at the earliest.

In Keshav Mills Company v. Commr. of Income-tax.[27], the Supreme Court of India observed that a revision of its earlier decision would be justified if there were compelling and substantial reasons to do so.

In Sajjan Singh v. State of Rajasthan[28], the Supreme Court laid down the test as: “Is is absolutely necessary and essential that the question already decided should be reopened?” and went on to observe: “the answer to this question would depend on the nature of the infirmity alleged in the earlier decision. its impact on public good and the validity and compelling character of the considerations urged in support of the contrary view”.

In Ganga Sugar Company v. State of U. P[29], Supreme Court held against the finality only where the subject was “of such fundamental importance to national life or the reasoning is so plainly erroneous in the light of later thought that it is wiser to be ultimately right rather than to be consistently wrong.”

Infinite authorities can be referred to replicate the trend of Judicial support to the machination of Reference in rectification and development of Law.

The essence of all the Judicial authorities is that- an error if it is so elementary and has far reaching effect in that, if  it is allowed to continue, then that would affect the interest of  society, then earlier decision should be revisited, than perpetuating the error previously committed, adducing more misery to the general public and allow the erroneous precedent to continue to hold to the field. However the Supreme Court has restrained itself from propounding any generalized formula for utilizing the device of Reference.

In Keshav Mills  (supra), the Supreme Court at page 1644 has given the concentrate of modality of reference by opining ;–

“It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations.”

Conclusion:

The truth is that “settled law” is just an tremulous phenomenon that legal fraternity use to refer to Judicial precedent on a subject, indeed it is being binding to the subordinate courts and smaller benches- but only until a majority of the judges of higher bench decide that it should be overruled as per the newly arisen state of affairs for providing justice to its subject.

It materializes from the study of the law over the subject, developed through judicial authorities, that despite all Judicial strength given to exercise Reference in warranted condition, no doctrinaire approach or straight jacket formula can be universally adopted when correctness of an earlier decision is doubted and a Reference to a larger bench is sought to be made.

Therefore, the functioning of the watchful judicial system in India shows that the anomalies and inconsistencies within the conflicting judgments, which are giving rise to a sense of uncertainty and unpredictability in the society, cannot easily be overlooked, they must be resolved in time by nipping the evil in the bud.

The Indian idea of Law has been progressive and flexible. The function of law is meant to participate in solving the social problems ideally. Indian Courts by utilizing, Reference, in overturning their own static precedents have unsettled the previously settled law for becoming synchronic with the needs of modern times, thoughts and society and have emphasized that the law is always on the status of “law in the making”.

***********************************************************

[1] His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. ‎(1973) 4 SCC 225

[2] Article 141:- The law declared by the Supreme Court shall be binding on all courts within the territory of India.
[3]Bengal Immunity Co. V/s State of Bihar (AIR 1955 SC 661)
[4] Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr. – 2005 (2) SCC 673
[5] WRIT PETITION (Crl.) NO. 76 OF 2016 NAVTEJ SINGH JOHAR & ORS. Vs. UNION OF INDIA & connected matters

[6] (2014) 1 SCC 1
[7] http://www.oxfordreference.com/view/10.1093/oi/authority.20110803095510675

[8] Jackson ex dem. Bradstreet v. Huntington, 30 U.S. 402, 434 (1831).
[9] 7 Pa. 185 (1847)
[10] 1916 AC 314
[11] AIR 1968 SC 372
[12] AIR 1965 SC 1767 (Para 18)
[13] AIR 1986 SC 806
[14] (1993) 3 SCC 288
[15] (1993) 3 SCC 259 : (1993 AIR SCW 1995)
[16] AIR 1988 SC 1365 (Para 7)
[17] AIR 1989 SC 1933
[18] AIR 1990 SC 261
[19] AIR 1990 SC 307,
[20] . AIR 1985 SC 1585,
[21] AIR 1992 SC 1593
[22] AIR 1984 Punj & Har 113 (FB)
[23] 1995 All CJ : 200
[24] (1980)3 SCC 719 : (AIR 1980 SC 1762)
[25] AIR 1955 SC 661
[26] AIR 1953 SC 252
[27] AIR 1965 SC 1636 at page 1643-44
[28] AIR 1965 SC 845 at pp. 854-55
[29] AIR 1980 SC 286 at p. 294

Procedures, Grounds & Judgements to Transfer Case in India

The Constitution of India is the fountainhead from which all our laws derive their authority and force. Transfer petitions can be presented at various stages of a trial. They can be presented before the High Court or the Supreme Court. They seek that depending on a just cause or reason, you request the Court to transfer your case to another district or State.

 

Article 139A of the Constitution states,

 

“Transfer of certain cases.—(1) Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or an application made by the Attorney-General for India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself: Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment.

(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.”

 

v Where  a Transfer petition can be filed?

 

Transfer petition can either be filed at High Court or at supreme court. If the transfer of a case is within a state then High Court of that State the transfer petition can be filed but if it is interstate then at supreme court.

 

How are  Transfer petitions filed?

 

Transfer Petitions are filed under Section 25 of the Code of Civil Procedure. Section 25 (1) provides:

On the application of a party, and after notice to the parties, and  after hearing such of them as desire to be heard, the Supreme Court may,  at any stage, if satisfied that an order under this section is  expedient for the ends of justice, direct that any suit, appeal or other  proceeding be transferred from a High Court or other Civil Court in one  State to a High Court or other Civil Court in any other State.

When the transfer of a case is sought-after from the State of Jammu and Kashmir. Code of Civil Procedure doesn’t apply to the State and thus the provisions of Section 25 of the Code of Civil Procedure additionally wouldn’t apply.

 

In Dr. Subramaniam Swamy v. Ramakrishna Hegde, the Court held that:
The paramount consideration for transfer of a case under Section 25 of Code of Civil Procedure must be the requirement of justice.

Also,  Section 406 of the Code of Criminal Procedure empowers the Supreme Court of India to transfer criminal cases and appeal unfinished in one court to a different court or from a Judicature subordinate to at least one court to a different judicature of equal or superior jurisdiction subordinate to a different court.

 

 

v In which cases a transfer petition can be filed?

A transfer petition can be sought in any kind of case be it matrimonial or a civil or a criminal case having its main aim to give justice to the seekers.

 

It was held that the mere convenience of the parties or anyone of them might not be enough for the exercise of power, however, it ought to even be shown that trial within the chosen forum will result in denial of justice. The Court any control that if the ends of justice therefore demand and also the transfer of the case is imperative, there ought to be no hesitation to transfer the case. The proper of the dominus litis to decide on the forum and thought of complainant’s convenience etc. cannot eclipse the necessity of justice.  Justice should be done in any respect costs; if necessary by the transfer of the case from” one court to a different as held in the case of Dr. Subramaniam Swamy v. Ramakrishna Hegde.

 

Grounds on which a Transfer can be sought.

Transfer petitions are mostly filed in matrimonial cases on the plea of wife.

Transfer of the cases can be sought on various grounds in a matrimonial case; they are:

 

a)   Prejudice in that jurisdiction that husband’s  family  is very infuential and will  hamper the  fair proceedings.

b)   Threat to life- Again being influential is a good ground for having a threat to life.

c)    Old and ailing parents

d)   Being a single woman without any support-If there is no support from father side then that is the good ground for seeking transfer.

e)   Medical History- Medical proof should be attached in case of medical ailment

f)      No  source of income- If wife is not working is a good ground

g)   Simultaneous Jurisdiction

 

Grounds on which the transfer petition be dismissed

 

Rather as a matter of fact, the husband cannot always be made to suffer and there are various judgements passed by the Hon’able supreme Court, wherein the husband can counter the allegations made by wife and protect himself from being further harassed.

 

Defence of these could be as follows:

a)   If the wife claims to have a minor child then grandparents can be asked to look after the child  and merely  on this  ground the petition can’t be transferred  (Anandita Das v. Sirjit Dey, 2006)

b)   If the wife claims a far distance then effort to prevent a transfer,the husband can make offer to bear 2nd class AC tickets for the woman to travel and her stay expenses.

c)   If the wife claims a threat to her life and she cannot commute ,strong proof is needed to be shown, and merely by stating a  fear to her life, the court will not be inclined to transfer the case, merely because petitioner is a lady does not mean she cannot travel’as stated by the SC in  Priti Sharma v. Manjeet in 2005

d)   Men who have kids custody with them can rely on Jaishreee Banarjee vs. Abhirup Banarjee to get proceedings in their favour.

 

Some cases of where the Transfer Application was being filed

 

In Avtar Singh and Co. Pvt. Ltd. v. S.S. Enterprises, a petition was filed, under Section 25 CPC for transfer of the suit from the Calcutta High Court to the District Court at Kanpur where a suit was already pending. The Court directed the Calcutta suit to be transferred to Kanpur taking under consideration of proven fact that Kanpur suit was filed earlier in purpose of time and that the suit was filed in Calcutta was within the nature of a cross-suit.

 

In Kiran Ramanlal Jani Vs Gulam Kadar, .the petitioner had prayed for transfer of a motor accident claim from Jammu and Kashmir to Gujarat. The Court allowed the transfer petition in the absence of any objection on behalf of the respondents and their non-appearance even when in service. It is, however, submitted that there has to be a sound legal basis for such transfer, when the party wishes a transfer of a case from Gujarat to the State of Jammu and Kashmir, the acceptable course would be to file a petition for special leave under Article 136 against the order directing issue of summons, personal appearance, etc. Once the Court is seized of the matter under Article 136 of the Constitution, it would have power under Article 142 to direct transfer, in order to do complete justice.

 

In Kalpana Devi Prakash Thakar Vs Dev PrakashThakar, the Court disallowed the wife’s plea for transfer of the matrimonial proceedings from Mumbai. to Palanpur, Gujarat taking into account the following considerations:
(i) The husband was a medical practitioner and his absence from Mumbai would cause inconvenience to his patients;
(ii) His old and ailing mother who. lived with him needed regular medical check-ups and constant care;
(iii) The witnesses were principally from Mumbai; .
{iv} The wife had relatives in Mumbai with whom she could stay .whenever she went there-for the case;
(v) The husband was ready to bear the expenses of travel and also the traveling expenses of the escort.
(vi) Palanpur was well connected to Mumbai by train

 

In State of Assam vs Dr. Brojen Gogoi, the Supreme Court while setting aside an order of the Bombay High Court granting anticipatory bail on the ground that the State of Assam was not heard; directed transfer of the application for anticipatory bail to the Gauhati High Court on the ground that the alleged offences could have been committed only within the territorial jurisdiction of the Gauhati High Court and it was that High Court, which was the appropriate forum to deal with an application for anticipatory bail. This case is an authority for the proposition that the Court can act suo motu under Section 406 of CrPC, if it feels the interests of justice so require.”

 

In Ayyannar Agencies v.Sri Vishnu Cement Ltd, five complaints had been filed by the respondent under Section 138 of the Negotiable Instruments Act before the Court of the Metropolitan Magistrate at Chennai and thereafter one complaint was filed before the Metropolitan Magistrate at Hyderabad against the petitioners in respect of two cheques for the same offences under Section 138 of the Negotiable Instruments Act. Transfer was sought of the Hyderabad case to Chennai on the ground that parties in all cases were the same and the offence is of the same nature though pertaining to different cheques. The Court allowed the petition for transfer holding that the transfer prayed for could only be in the interests of justice and for the convenience of conducting the trial and disposal of all the cases.
In Abdul Madani v. State of Tamil Nadu, the Court disallowed the plea for transfer. The petitioners-prayed for transfer of the case pending against them in Tamil Nadu to Kerala alleging that the surcharged communal atmosphere in Tamil Nadu made the conduct of a fair trial impossible. The Court found as a matter of fact that a fair and speedy trial of the case was possible and the accused persons need not have any cause for apprehension. The court observed that the apprehension of not getting a fair and impartial trial is required to be reasonable and not imaginary. The Court observed that no universal or hard and fast rules can be prescribed for deciding the transfer petition, which always had to be decided on the basis of the facts of each case. The Court also observed that the convenience of the parties, including the witnesses to be produced at the trial was a relevant consideration, that convenience of the parties does not necessarily’ mean the convenience of the petitioner alone and that convenience for the purpose of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interests of the, society.

 

Conclusion

“Assurance of a fair trial is the first imperative of the dispensation of justice and therefore the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or simple handiness of legal services or like mine-grievances. something more substantial a lot of compelling, a lot of imperilling from the point of read of public justice and its attendant surroundings, is needy if the Court is to exercise its power of transfer; this is the cardinal principle though the circumstances may be myriad and vary from case to case, stated by Krishna Iyer In Maneka Sanjay Gandhi v. Miss Rani Jethmalani!

Arbitration involving consortium of an Indian and foreign entity

Arbitration involving consortium of an Indian and foreign entity: Treatment under the Arbitration and Conciliation Act.

By- Amiy Kumar,

Background of the Case: 

The Supreme Court of India in a recent judgment passed in Larsen and Toubro Limited Scomi Engineering BHD Vs Mumbai Metropolitan Region Development Authority1, analysed the following issues relating to ‘international commercial arbitration’ (ICA) as contemplated under section 2(i) (f) of the Arbitration and Conciliation Act, 1996 (ACA):

(i) Whether a consortium formed by a company incorporated in India and a company incorporated outside India will be considered to be a ‘body corporate’ as stipulated under section 2(1)(f)(ii) of the ACA or an ‘association’ as stipulated under section 2(1)(f)(iii) of the ACA?

(ii) Whether an arbitration proceeding in which such consortium is a party, would be considered to be an ICA?

This note discusses the analysis and the ratio held by the Supreme Court in relation to the above issues.

Analysis
(i) Treatment of the Consortium
In the instance case the consortium was formed by M/s Larsen and Toubro, an Indian Company (L&T) with Scomi Engineering Bhd, a Malaysian Company (Scomi). The consortium of L&T and Scomi (Consortium) was governed by terms and conditions of a consortium agreement dated 09.01.2009 (Consortium Agreement).
Whilst analysing whether the Consortium will be a body corporate or an association under section 2(1)(f) of the ACA, the Supreme Court relied upon a previous judgment of Bombay High Court inter se between the parties which prohibited L&T and Scomi to rely upon their status as independent entities under the Consortium. Therefore, the Consortium was not considered to be a body corporate for the purpose of section 2(1)(f)(ii) of the ICA.

1 Arbitration Petition (C) No. 28 of 2017, decided on 03.10.2018, (2018 SCC OnLine SC 1910)
Further, the apex Court relied upon the definition of ‘person’ as provided under the Income Tax Act, 1961 and observed that under Section 2(31) of the Income Tax Act, 1961, “person” is defined as including, under subclause (v), an association of persons, or body of individuals, whether incorporated or not.
It was therefore laid down that an association is referred to in Section 2(1)(f)(iii) of the ACA in the similar sense as established under the Income Tax Act, 1961 which would therefore include a consortium consisting of two or more bodies corporate, at least one of whom is a body corporate incorporated in a country other than India.
(ii) Applicability of ICA
The apex court further analysing the said Consortium Agreement, observed the following:
(a) L&T was the lead partner of the Consortium; (b) the supervisory board constituted under the Consortium Agreement makes it clear that the lead partner, i.e., L&T has the power to appoint the Chairman of the said Board; (c) the fact that the Consortium’s office is in Wadala, Mumbai; and (d) L&T shall lead the arbitration proceedings.
From the aforesaid provisions of the Consortium Agreement, the Supreme Court concluded that central management and control of the Consortium in the present case appears to be exercised in India and not in any foreign nation as the central management and control rests with the lead partner of the Consortium, i.e., L&T which is a company incorporated in India. Accordingly, the arbitration proceedings in which the Consortium is a party and the other party in MMRDA, shall not be considered to be an ICA.
Conclusion The above judgment of the Supreme Court appears to provide the following conclusion: (i) A consortium formed by an Indian entity and an entity incorporated outside India will be considered to be an association if parties have agreed not to rely upon their status as independent entities under their consortium agreement. In such cases, the consortium is considered to be an unincorporated body of associations. (ii) Further, in order to determine the applicability of Section 2(i)(f) of the ACA, the status and origin of incorporation of the lead member of such consortium having the central management and control over supervisory board shall be considered. In the event such lead member is an Indian entity, the Section 2(i)(f) of the ACA shall not be applicable and any arbitration proceeding involving such consortium and any other Indian entity shall not be held to be an ICA.
This judgment is a welcome analysis by the Apex court which provides certainty on the treatment of consortium involving Indian and foreign company for the purposes of the ACA.

 

By- Amiy Kumar, Associate, King Stubb & Kaisva, Advocates & Attorneys, Mumbai

Transfer of Petition – An effective tool to meet the ends of Justice

This is the provision inserted in Code of Civil Procedure under section 25 reads as under-

Power of Supreme Court to transfer suits, etc.

(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.

(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.

(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it.

(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.

(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.

Scope

This section enables the plaintiff or the defendant or the respondent to get the transfer of the suit to their state instead of the other party’s state where the said suit is entertained by the High Court or any other court. This provision is invoked generally in the matrimonial cases, divorce cases or custody cases. The main objective of the Hon’ble Court is to meet the ends of the justice in any possible way. The transfer of petition can be filed in Hon’ble Supreme Court after filing of charge sheet by investigating agency in the court entertaining the said suit.

Impact of the Section 25 C.P.C. on society

There are more than 2 lakhs of cases of matrimonial matters including custody, divorce and domestic violence cases, our courts dealing in each court. As we know our society is influenced under corruption by the people whose motives are ulterior, therefore our legislature and courts have to keep in mind many aspects while administering justice to the victim. This is the main object of the said section to deliver the justice to the victim.

From the beginning people assume that the section of women is weaker as compared to section of men in the society, so it needs to be strengthened.  Same on this assumption Hon’ble Supreme Court is allowing the Transfer of Petition. According to recent judgements probability of getting relief by women is higher under this section.

Parameters Court Consider while allowing the Transfer of Petition

1.     Distance Travel to attend the proceedings.

2.     Reason how one is not capable to attend the proceedings.

3.     How Justice can be influenced at the place where proceedings of the suit are taking place.

4.     Merits of the case

5.     Allegations

Recent Judgements in favor of women

1.     Sneh Sweta Singh vs Manish Singh on 15 November, 2018, TP No.- 1147/2018

 

Mother is of 65 years old lady and suffering from several disease like Joints pain, fever, digestion problem etc. currently her mother is not keeping well with her health and she needs regular medical check-up and constant care in Bangalore. Petitioner’s daughter is 8 years old and is going to school in Bangalore. Both are totally depend on petitioner. In such circumstances she alone has to travel leaving her old and ailing mother and her 8 years old daughter behind a distance of 2200 Kms from Sarjapur in Bangalore to the State of Lucknow to contest the matrimonial suit filed by the respondent.  Therefore, court allow the transfer of petition.

 

2.     Poonam Aggarwal vs Saurabh Agggarwal on 7 September, 2018, TP No.- 703/2018

Petition was allowed by the Hon’ble Court as the petitioner was the sole earner and her father was dependent on her as they were facing financial crisis.

 

3.     Boby Rani alias Babita Vs. Suresh Kumar, 2011(1) HLR 284

Wife has not any source of income and she is 70 % handicapped. Her parents are not in a position to bear the traveling expenses as their economic condition is weak.

 

4.     In the case of Mona Aresh Goel vs Aresh Satya Goel on 21 March 2000, wherein the transfer petition was filed by the wife to transfer the divorce proceedings taken by the husband in Bombay to Delhi, where she stayed with her parents. The transfer petition avers that the wife had no independent income and that her parents were not in a position to bear the expenses of her travel from Delhi to Bombay to contest the divorce proceedings. She averred that she is twenty-two years old and cannot travel to and stay in Bombay alone for, there is no one in Bombay with whom she can stay. Hence the court allowed such a petition in these circumstances.

5.     A very poignant and logical judgment was observed in Premlata Singh v. Rita Singh wherein this Court had not transferred the proceedings but directed the husband to pay for traveling, lodging and boarding expenses of the wife and/or person accompanying her for each hearing. The said principle was also followed in Gana Saraswathi v. H. Raghu Prasad.

6.     In the case of Santhini vs Vijaya Venkatesh on 9 October 2017, the court cited various cases. The court before reaching the final conclusions made a reference to the following cases, it made apt to refer to the decisions that have been noted in Krishna Veni Nagam.

7.     In Mona Aresh Goel ( as discussed above) the three-Judge Bench was dealing with the transfer of the matrimonial proceedings for divorce that was instituted by the husband in Bombay. The prayer of the wife was to transfer the case from Bombay to Delhi. The averment was made that the wife had no independent income and her parents were not in a position to bear the expenses of her travel from Delhi to Bombay to contest the divorce proceedings. That apart, various inconveniences were set forth and the husband chose not to appear in the Transfer Petition. The Court, considering the difficulties of the wife, transferred the case from Bombay to Delhi.

8.     In Lalita A. Ranga, the Court, taking note of the fact that the husband had not appeared and further appreciating the facts and circumstances of the case, thought it appropriate to transfer the petition so that the wife could contest the proceedings. Be it noted, the wife had a small child and she was at Jaipur and it was thought that it would be difficult for her to go to Bombay to contest the proceedings from time to time.

9.     In Deepa’s case, the stand of the wife was that she was unemployed and had no source of income and, on that basis, the prayer of transfer was allowed. In Archana Rastogi, the Court entertained the plea of transfer and held that the prayer for transfer of matrimonial proceedings taken by the husband in the Court of District Judge, Chandigarh to the Court of District Judge, Delhi deserved acceptance and, accordingly, transferred the case. Similarly, in Leena Mukherjee, the prayer for transfer was allowed.

10.  In Neelam Bhatia, the Court declined to transfer the case and directed the husband to bear the to-and-fro traveling expenses of the wife and one person accompanying her by train whenever she actually appeared before the Court.

11.  In Soma Choudhury, taking into consideration the difficulties of the wife, the proceedings for divorce were transferred from the Court of District Judge, South Tripura, Udaipur (Tripura) to the Family Court at Alipore (West Bengal).

12.  In Anju Ohri case, the Court, on the foundation of the convenience of the parties and the interest of justice, allowed the transfer petition preferred by the wife.

13.  In Vandana Sharma, the Court, taking note of the fact that the wife had two minor daughters and appreciating the difficulty on the said bedrock, thought it appropriate to transfer the case and, accordingly, so directed.
 

 

PILs IN THE SUPREME COURT OF INDIA…!!!

PIL that is the “Public Interest Litigation” is directly filed by an individual or group of people in the Supreme Court of India and High Courts of India and judicial magistrate. It was felt that their interests are undermined by the government.In such a situation, the court directly accepts the public good. It is a new legal horizon in which court of law can initiate and enforce action to serve and secure significant Public Interest.

It was in the case of SP Gupta vs Union of India that the Supreme Court of India defined the term “public interest litigation” in the Indian Context.

The concept of public interest litigation (PIL) is in consonance with the principles enshrined in Article 39A of the Constitution of India to protect and deliver prompt social justice with the help of law. Before the 1980s, only the aggrieved party could approach the courts for justice.                                                         After the emergency era the high court reached out to the people, devising a means for any person of the public (or an NGO) to approach the court seeking legal remedy in cases where the public interest is at stake. Justice P. N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PILs in court.

l       Filing a PIL is not as cumbersome as a usual legal case; there have been instances when letters and telegrams addressed to the court have been taken up as PILs and heard.

l       A PIL is a petition that an individual or a non-government organisation or citizen groups, can file in the court seeking justice in an issue that has a larger public interest. It aims at giving common people an access to the judiciary to obtain legal redress for a greater cause.

l       PIL is not defined in any statute. It is the outcome of judicial activism to take cognisance of a cause at the instance of any person even if it does not affect him personally, but affects the public at large.

 

Difference between a writ and a PIL..??

 

       Writ is an order made by the court in the name of a person

involved to either perform a particular action or abstain him from doing it.

Whereas, PIL (Public Interest Litigation) is a form of writ where an action or law is framed for public convenience. It directly joins public with the judiciary. In PIL, the court has given public the right to file a suit.

 

Writs are filed by institutions or individuals for benefit in their own cases, whereas, PIL is an application that is filed by any citizen for easing out any undue botheration or inconvenience faced by the public at large.

Public interest litigation is not defined in any statute or any act. It has been interpreted by a judge to consider the intent of public at large. Following are the various areas where a PIL can be filed against State/Central Govt./Municipal authorities or any private party.

(a) If there’s abuse of elementary human rights of the underprivileged.

(b) If there’s inappropriate content or conduct of government policy.

(c) To force municipal authorities to accomplish a public duty.

(d) If there’s violation of religious rights or any basic fundamental rights.

 

        Writs are issued by the Supreme Court of India under Article 32 and Article 139. Writs can be issued by High Court of the States under Articles 226.

PIL’s are applications/writs that are filed by any citizen for easing out inconvenience faced by the public at large and they are not defined in any Statute.

Filing of PIL under article 32, 226 or 133
The court must be satisfied that the Writ petition fulfils some basic needs for PIL as the letter is addressed by the aggrieved person, public spirited individual and a social action group for the enforcement of legal or Constitutional rights to any person who are not able to approach the court for redress. Any citizen can file a public case by filing a petition:

·        Under Art 32 of the Indian Constitution, in the Supreme court.

·        Under Art 226 of the Indian Constitution, in the High court.

·        Under sec. 133 of the Criminal Procedure Code, in the court of Magistrate.

 

How to file a PIL in Supreme Court of India

The name PIL has not been defined in the Constitution and is a more popular name for a Writ issued by the Supreme Court in the exercise of its original jurisdiction under Article 32 of the Constitution of India which is considered to be highly prerogative.

The following steps describe in brief the process how to file a PIL in Supreme Court of India.

Firstly  check about the subject on which one is thinking to file the PIL and read all the details of the provisions of the law and the violations of the law if any being done by the State or any statutory body. PIL can only be filed against any existing legal right or violation of the legal right by the Government.

Secondly to make a detailed representation regarding the violations being made by the department concerned or the concerned authorities to take the remedial steps in this regard. If possible a reminder to the same may also be given.

Thirdly to check any arbitrary law, irregularity in the enforcement of law and the class of people being affected by such law or the inactivity of the department concerned.

Fourthly to collect all the relevant material, press reportings, documents etc in this regard and arrange them chronologically.

Fifthly to draft a Writ petition under Article 32 of the Constitution of India citing the violations of the law, inactivity of the state and all other grounds. The format for PIL is given below which may be used. It is important to take the assistance or services of a trained legal hand for the purpose.

Sixthly to prepare and file the PIL in Supreme Court of India before the Registry of the Supreme Court of India and get the matter listed before the court after due scrutiny. The matter is thereafter listed before the Court of hearing and orders accordingly.

WRITS WHICH CAN BE ISSUED:
Writ of Mandamus can be issued against inaction, inactivity of the State or any statutory body or any Government body in any manner.
Writ of Certiorari can be issued for quashing of any judicial or quasi-judicial proceedings or any other irregular proceedings being conducted by any wing of the State.
Writ of Prohibition can be issued against any wing of the State or any statutory body if it is exercising its powers beyond its jurisdiction i.e. beyond the legal powers vested in it.
Writ of Quo Waranto can be issued against any wing of State or any statutory body if it does not enjoy the legal authority to act, or his appointment to the post is illegal or is irregular.
Writ of Habeas Corpus can be issued for producing the body of a missing person. This is the only writ which can be issued by a private body or individual also.
A writ can be by way of a writ, order or direction normally. It can be in form of any other form of order issued by the Court.

Important documents to be enclosed along with a PIL in Supreme Court of India:
(i) Affidavit of the Petitioner.
(ii) Annexures as referred to in the Writ Petitioner, with court fees of Rs.2/- per annexure is to be filed.
(iii) 1+5 copies of the Writ Petition duly bound is to be filed.
(iv) Court fee of Rs.50/- per petitioner for civil matters, for criminal matters, no fees is required.
(v) Index of the papers.
(vi) Cover page.
(vii) Application for interim relief, stay, exemption etc .
(viii) Memo of appearance, Rs. 5/- Court fee.

PILs have achieved a place of great importance in our legal system. In India, the first PIL was filed in the year 1976 – Mumbai Kamgar Sabha v. M/s Abdulbhai Faizullabhai and others [1976 (3) SCC 832]. The seed of the PIL was sown by Justice Krishna Iyer through this landmark judgement.

l  Some of the Landmark PILs of the Supreme Court

Vishaka v. State of Rajasthan

This case was against sexual harassment at work place, brought by Bhanwari Devi to stop the marriage of a one year old girl in rural Rajasthan. Five men raped her. She faced numerous problems when she attempted to seek justice. Naina Kapoor decided to initiate a PIL to challenge sexual harassment at work place, in this supreme court.

The judgement of the case recognized sexual harassment as a violation of the fundamental constitutional rights of Article 14, Article 15 and Article 21. The guidelines also directed for sexual harassment prevention.

M. C. Mehta v. Union of India

In this case, the court passed three landmark judgements and several orders against polluting industries which were more than 50,000 in the Ganga basin. The court shut down numerous industries and allowing them to reopen only after controlled pollution. At the end, millions of people escaped air and water pollution in the Ganga basin, including eight states in India.

Hussainara Khatoon v. State of Bihar

Many have regarded this case as the first PIL in India as well. In this case, the attention of the Court focussed on the incredible situation of under-trials in Bihar who had been in detention pending trial for periods far in excess of the maximum sentence for their offences. The Court not only proceeded to make the right to a speedy trial the central issue of the case, but passed the order of general release of close to 40,000 under-trials who had undergone detention beyond such maximum period.

l  Issues that cannot be filed under PIL?

The Supreme Court has issued a set of PIL guidelines according to which the following matters will not be allowed as PILs:

  • ·        Landlord-tenant matters
  • ·        Service matters
  • ·        Matters pertaining to pension and gratuity
  • ·        Complaints against Central and State government departments and Local Bodies except those relating to items 1 to 10 mentioned in the list of guidelines
  • ·        Admission to medical and other educational institutions
  • ·        Petitions for early hearing of cases pending in High Court or subordinate court.

In 2010, the Supreme Court came down heavily on frivolous public interest litigation petitions for personal or extraneous reasons, and eventually laid down certain guidelines to be followed by courts in entertaining PILs.

The filing of indiscriminate petitions “creates unnecessary strain on the judicial system and consequently leads to inordinate delay in disposal of genuine and bona fide cases,” said a Bench consisting of Justices Dalveer Bhandari and Mukundakam.

Conclusion

PIL now does require a complete rethink and restructuring. Anyway, overuse and abuse of PIL can only make it stale and ineffective. Since it is an extraordinary remedy available at a cheaper cost to all citizens of the country, it ought not to be used by all litigants as a substitute for ordinary ones or as a means to file frivolous complaints.

 

Supreme Court deplores the tendency to turn civil cases into criminal ones

 

What is considered as a civil case?

A civil case begins when a person or entity (such as a corporation or the government), called the plaintiff, claims that another person or entity (the defendant) has failed to carry out a legal duty owed to the plaintiff.

Civil law refers to almost all other disputes—these are the rules that apply when one person sues another person, a business or agency. This can cover a housing case such as for eviction or foreclosure, a family case such as divorce or custody, consumer problems such as debt or bankruptcy, or when someone sues for money because of damage to property or personal harm. All of these cases go to a Civil Court.

These are some of the most common types of cases to appear in civil court.

  • ·        Contract Disputes. Contract disputes occur when one or more parties who signed a contract cannot or will not fulfil their obligations.
  • ·        Property Disputes.
  • ·        Torts.
  • ·        Class Action Cases.
  • ·        Complaints Against the City.

 

 What is said to be a criminal case?

Criminal laws are the rules that apply when someone commits a crime, such as assault, robbery, murder, arson, rape and other kinds of crimes. After a person is arrested and charged with a crime, that person goes to a Criminal Court. An accused in a criminal offence is harmful to the society as whole.

A person accused of a crime is generally charged in a formal accusation called an indictment (for felonies or serious crimes) or information (for misdemeanors).

It is not the victim’s responsibility to bring a criminal case. In a kidnapping case, for instance, the government would prosecute the kidnapper; the victim would not be a party to the action.

 When can a civil action become criminal?

One of the more challenging circumstances of civil practice is the development of a parallel criminal proceeding connected in some fashion to an ongoing civil matter. The complexity of the civil matter, and the strategic choices necessary for its successful resolution, grow exponentially with the overlay of criminal liability for a party or one of its principals. The spectre of a criminal record, incarceration, fines, assessments, restitution and other penalties such as debarment change–is in most circumstances irreversibly–how to proceed with the civil matter.

 

 Why civil cases are being given the colour of criminal cases?

Expressing serious concern over a practice of conversion of civil cases into the criminal cases, a Bench of Justice H.K. Sema and Justice R.V. Raveendran said, “This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families.

“Mr. Justice Raveendran, writing the judgment, said: “There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. The Supreme Court has deprecated the tendency, particularly in business circles, to convert purely civil disputes into criminal cases and the courts entertaining such matters for adjudication.

In the case of Madan Lal  & ANR vs State Of Haryana it was seen that if  the matter is clubbed together and is perused, then, it gives rise to a dispute of purely a civil nature. The question of execution of sale deed or otherwise cannot be gone into by the police or the criminal Court. Only the civil Court has the jurisdiction to decide such intricate questions. It is now well- recognized principle of law that the matter, which essentially involves the dispute of civil nature cannot legally be allowed to become subject matter of criminal proceeding. It is not a matter of dispute that the jurisdiction of civil and criminal courts is entirely different and distinct from each other. The matter which squarely falls within the ambit and jurisdiction of the civil court cannot legally be permitted to be re-agitated in parallel proceedings in the criminal court. If the complainant is permitted to re-agitate the same very dispute in the garb of criminal prosecution, by way of impugned FIR, then, there will be no end of unwarranted litigation and it will inculcate and perpetuate injustice to the petitioners in this relevant direction. The complainant cannot possibly and legally be permitted to execute a non-existent civil court decree by putting pressure of a criminal prosecution against the petitioners-accused.

The division bench of Justice Ranjit More and Justice Shalini Phansalkar Joshi  of the bombay high court recently stated in its judgement that when dispute is of civil nature, giving the proceedings a criminal colour is abuse of the process of law in the case Ramesh Shah v. Tushaar Thakkar.

Bomanji Kavasji v. Mehernosh 1982 Bom. C.R. 503, wherein it was held that there is no justice at all to criminally proceed against the accused where the dispute is essentially of civil nature and that a criminal action in such a case would be abuse of criminal process …  It was further observed that the exercise of inherent powers is necessary to prevent criminal courts being utilized as weapons of harassment for settling disputes of civil nature.

v Can a Criminal as well as Civil case be done in case of Cheque Return?               1.  Both civil case for recovery of cheque amount and criminal complaint for cheque dishonour are maintainable.

2.  Civil case is for recovery of money and criminal complaint is for punishment .

3.  Bombay high court has held that both cases are maintainable .

 

 

Remedy for the cases where civil matters are turned into an criminal offence..!!

A positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 Cr.P.C. (to award compensation for accusation without reasonable cause) more frequently, where they discern malice or frivolous or ulterior motives on the part of the complainant.”

The apex court was dealing with an appeal preferred by Indian Oil Corporation against a judgment of the Madras High Court quashing criminal proceedings initiated against NEPC India Ltd and others for breach of contractual obligations.( Indian Oil Corporation Ltd. vs Nepc India Ltd.)

The High Court had held in one of its cases that mere breach of contractual terms would not amount to cheating unless fraudulent or dishonest intention was shown right at the beginning of the transaction.

 

 

Criticizing Public Function of Public Representatives by Media and Law of Defamation: An Overview in Indian Perspective

By:-Dushyant Mainali

Media have a role to play in informing the society and freedom of expression must be respected. The fundamental right of freedom of speech is involved in a criminal trial of defamation apart from the right of liberty of the press. In India Courts have time to time observed that in a democracy persons holding public offices must not be thin-skinned with reference to the comments made on them and even where they know that the observations are undeserved and unjust, they must bear with them and submit to be misunderstood for a time. At times public figures have to ignore vulgar criticisms and abuses hurled against them and they must restrain themselves from giving importance to the same by prosecuting the person responsible for the same. Although we generally see when media criticizes the poor functioning of public representatives they file criminal complaints against the news correspondents and editors. Let’s sketch out the legal scenario of the subject.

Public conduct of public servants and Defamation.

Indian Penal Code has put the expression made in good faith or any opinion whatever respecting the conduct of a public servant in the discharge of his public functions beyond the ambit of offence of defamation. It falls under the exception of Section 499 of Indian Penal Code.

S.499 : Defamation

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

…………………………..

First Exception. ‘ Imputation of truth which public good requires be making or publishing. ‘It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

Second Exception. ‘Public conduct of public servants. It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.

It is amply clear from the perusal of second exception of Section 499 IPC that if the subject matter of the any publication is the public conduct of public servant then it falls in the exemplary category and no offence U/s 500 will  be attracted.

Doctrine of Fair Comment and Exaggerated News

In common law the Doctrine of Fair Comment is widely acclaimed. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts

To be free from the clutches of law the publication should be substantially true and the comment made in the news report should be based on the facts and should be supported by good faith. Kerala High Court in Nazeem Bavakunju V/s. State of Kerala & Ors. reported at 1988 CRI.L.J. 487, held:

“7. In case of this nature if the contents of the news item published in the newspaper are slightly exaggerated it does not make the comment unfair so long as what is expressed therein is materially true and for public benefit. The publishers of the newspaper are entitled to make fair comments. The doctrine of fair comment is based on the hypotheses that the publication in question is one which, broadly speaking, is true in fact and is not made to satisfy a personal vendetta and that the facts stated therein would go to serve the public interest. Mere exaggeration or even gross exaggeration would not by itself prove malice. It has been held in Cheriyan v. Johnson, 1969 Ker LT 597 that the important ingredient of the 9th exception to S.499, I.P.C. is that the report made is substantially true and that the comment made basing on the facts, is supported by good faith.”

Existence of criminal intention is must for prosecution under Sec. 500 IPC.

Existence of criminal intention is sine qua non for prosecution under Sec. 500 IPC. If the accused establishes that there is no malice, against the complainant, while reporting the performance of a public representative if the news writeris acting in good faith or public good he will not fall under the act of defamation. In Ramoji Rao, Chairman Ramoji Group of Companies and Anr. Vs. State of Andhra Pradesh; 2006(8) SCC 321, the Supreme Court of India has held:

“3.Though many points were urged in support of the appeal, learned counsel for the appellants submitted that actually there was no intention in any manner to harm the reputation of the Chief Minister, of the ministers or the officials and, therefore, continuance of the proceedings would not be in public interest.”

There will be no preponderance of probability or occasion to draw a prima facie conclusion to summon the writer under Section 500 I.P.C. if the Magistrate forms a prima facie opinion that there was no intention in the minds of the applicants to harm the reputation of the complainant knowingly and willfully.

Hon’ble Supreme Court in S. Khushboo Vs. Kanniammal and another; (2010)5 SCC 600, wherein it considered the necessity of showing intention to harm the reputation and held as:

“34.It is our considered view that there is no prima facie case of defamation in the present case. This will become self-evident if we draw attention to the key ingredients of the offence contemplated by Section 499 IPC, which reads as follows: (the Court then quoted Section 499 of I.P.C. and observed 🙂 The definition makes it amply clear that the accused must either intend to harm the reputation of a particular person or reasonably know that his/her conduct could cause such harm……”

Thus in a complaint of defamation the complainant is required to show that the accused persons as editor and publishers of newspapers harbored the intention to harm the reputation of the complainant.

Liability of Editor under Press Registration and Books Act

There is a regular course of business of printing and publishing news in newspapers. News are collected by the reporters and sent to the office of the newspaper. The News Editor or his assistants deals with such news items and they take the decision to publish it in the newspaper. Inputs thus obtained are assembled, collected, scanned by the News Editor and his assistants. The News Editor generally takes the decision to allow its publication.

Law recognizes this distribution of work inside a press establishment or a media house. Editor of the newspaper has been made responsible under section 7 of the Press and Registration of Books Act 1867. A newspaper has to issue a declaration of this effect disclosing the name of the editor responsible for selection and editing of all the news items of the edition of the newspaper under PRB Act. S.7 of the Press and Registration of Books Act, 1867 is reproduced :-

S.7. Office copy of declaration to be prima facie evidence

Office copy of declaration to be prima facie evidence In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declarations, or, in the case of the Editor, a copy of the newspaper containing his name printed on it as that of the Editor shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, or printed on such newspaper, as the case may be that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every newspaper whereof the title shall correspond with the title of the newspaper mentioned in the declaration, or the editor of every portion of that issue of the newspaper of which a copy is produced.

It is very well settled law as held by Hon’ble  Apex Court in K.M. Mathew Vs. State of Kerala reported in (1992)1 SCC 217:-

“the presumption under S.7 of the PRB Act is only against the person whose name is printed as editor as required under S.5(1). There is mandatory (though rebuttable) presumption that the person whose name is printed as Editor is the editor of every portion of that issue of the newspaper of which copies are produced. Section 1(1) of the Act defines Editor to mean the person who controls the selection of the matter that is published in the newspaper. Section 7 raises the presumption in respect of a person who is named as Editor and printed as such an every copy of the newspaper. The act does not recognize any other legal entity for raising such presumption. Even if the name of the Chief Editor printed in the newspaper there is no presumption against him under section 7 of the Act.”

It has further been held by the Hon’ble Court that “for a Magistrate to take cognizance of offence as against the Chief Editor there must be a positive averment in the complaint of knowledge of the objectionable character of the matter.”

Therefore as per the settled position of law in the light of judicial pronouncements of the Hon’ble Apex Court printer publisher or other persons cannot be summoned to face trial under section 499 or 500 IPC against whom a presumption under S.7 of PRB Act is not available.

Conclusion:-

In a Complaint of Defamation under Section 500 unless a positive averment has been made against someone in the complaint only the Editor of a Newspaper whose name has been declared for the selection and edition of news as per Section 7 of the Press and Registration of Books Act 1867 can be prosecuted and in his defense he has to establish that he has acted in good faith and in the interest of public, and there was no animus in his mind against the complainant and the allegations pertain to the public functioning of the Politician.

Thus Law in India derives is loud and clear that if upon such complaints by public representatives action can be maintained against a newspaper, it can be maintained against every private citizen who ventures to criticize the MLA or Minister who are temporarily conducting the affairs of the government. In a free democratic society those who hold public office through elections or in the government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.

 

How to get bail in Section 420 IPC

            Section 420 in the Indian Penal Code deals with Cheating and dishonestly inducing delivery of property.

  • 420:Cheating and dishonestly inducing delivery of property.: Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable fine

 

Essential elements of Section 420

      (i) Cheating;
      (ii) Dishonest inducement to deliver property or to make, alter or   destroy any valuable security or anything which is sealed or is capable of being converted into a valuable security and
      (iii) Mens rea of the accused at the time of making the inducement.

        Making of a false representation is one of the essential ingredients to institute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely satisfactory to prove that a false representation had been made, but it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant.

 

Cheating

      The term “cheating” has been defined under Section 415 of the Indian Penal Code. The element of cheating must be present in every offence under Section 420 of I.P.C.

      Section 415 of IPC states that Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

      For example – There are two persons A and Z. A exhibits the false sample of an article to Z and intentionally make Z believes that the article corresponds with the sample. A here induces Z to buy and pay for the false sample of article. A cheats Z.

Acting dishonestly

      Section 24 defines that what is “acting dishonestly”. When the doing of any act or not doing of any act causes wrongful gain of property to one person or a wrongful loss of property to a person, the said act is done dishonestly.

Mens rea

      Mens rea is a legal phrase which used to define the mental state of a person while committing a crime and that should be intentional. It can refer to a general intent to break the law or a specific prearranged plan to commit a particular offense. A criminal prosecutor must show beyond any reasonable doubt to convict an accused person that the suspect actively and knowingly contributed in a crime that affected another person or their property.

 

How Cheating is to be proved

         You have to prove that there was an intention to cheat at the time of making the misrepresentation; and this fact is to be proved on the basis of all the subsequent conduct as acts and omissions of the accused. Therefore, all the acts and omissions of the accused must be clearly and legibly set out right from the date of making of false representation, till the filing of the complaint.

          It must be shown that there is a failure of the promise which was made. It must be shown that there was no effort on the part of accused to perform his promise. The test of prudent man must be applied to appreciate the evidence on record.

 

Cognizance of an offence under Section 420

        The offence is cognizable and falls under the category of Non Bailable. It is triable by Magistrate of the First Class and therefore FIR or Application u/s 156(3) or Private Complaint u/s 200 may be preferred.

 

  • Getting a bail under 420 IPC

Vaman Narain Ghiya v. State Of Rajasthan, Hon’ble Supreme Court has held that, Balance to be maintained between the personal liberty of the accused and the investigational right of the police. –An accused is not detained in custody with the object of punishing him on the assumption of his guilt thus can opt anticipatory bail.

         Offences under section 420 of IPC are non bailable offence, due to which it is possible to apply for anticipatory bail under sec 438 of CrPc.

         In Abdul Fazal Siddiqui vs Fatehchand Hirawat And Another JT 1996 (8), the court held that there was nothing on the record to show that the appellant had any knowledge about the property being an encumbered property or about the appointment of the Joint Receivers by the Calcutta High Court in a suit in respect of that property. There was no evidence to show that the appellant, knowingly made any false representation much less dishonestly or fraudulently. The basic ingredients of the offence of cheating were missing in the case. The evidence on tile record does not connect the appellant with the crime alleged against him at all. A mere representation, which was neither claimed or alleged to be dishonest or fraudulent would not attract the charge of cheating only because the complainant parts with his money on the basis thereof. In the present case the dishonest representation, both orally and in the deed of hypothecation, was made by  proprietor of the Calcutta Case. The conviction and sentence against the appellant as recorded by the trial court and confirmed by the High Court, under the circumstances was unsustainable ad thus accordingly the appellant was given bail.

 

           In Sandeep Chaudhary And Anr. vs State And Ors SC stated that in their opinion, the courts below could not have cancelled the bail solely on the ground that the appellant had failed to keep up his promise made to the court. Here we hasten to observe, first of all from the material on record, we do not find that there was any compromise arrived at between the parties at all, hence, question of fulfillling the terms of the compromise cannot be the basis of granting or cancelling a bail. The grant of bail under the Criminal Procedure Code is governed by the provisions of Chapter xxxviii of the Code and the provision therein does ;not contemplate either granting of a bail on the basis of an assurance of a compromise or cancellation of a bail for violation of the terms of such compromise. What the court has to bear in mind while granting bail is what is provided for in Section 437 of the said Code. In our opinion, having granted the bail under the said provision of law, it is not open to the trial court or the High Court to cancel the same on a ground alien to the grounds mentioned for cancellation of bail in the said provision of law. Since the petitioners have been granted interim protection, that shall remain operative for a period of two weeks during which period the petitioners shall apply for regular bail before the trial court

          In a recent ruling in the case of Sangeetaben Mahendrabhai Patel v. State of Gujarat & Anr the Honorable Supreme court held that Case u/s.420 IPC are not barred if prior case u/s.138 Negotiable Instruments Act is pending!

          Also in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao & Anr SCC 703, It has been held therein that once the conviction under Section 138 of N.I. Act has been recorded, the question of trying a same person under Section 420 IPC or any other provision of IPC or any other statute is not permissible being hit by Article 20(2) of the Constitution and Section 300(1) Cr.P.C.

 

          In Ranubhai Bhikhabhai Bharwad vs State Of Gujarat the High court on the grounds of detention, a reference was made to three criminal cases registered against the petitioner as under as

(i) Gorva Police Station M. Case No.28/97 for offences under Sec.504, 506(2), 120(B), 406, 420, 386, 389, and 114 of IPC – In this case, the petitioner is enlarged on bail and the trial is pending.

(ii) J.P. Road Police Station Case No.139/98 for offences under Sec.342, 406, 420, 504, 323, 506(2) and 114 of IPC – In this case also, the trial is pending and the petitioner is on bail.  , thus for both the cases the petitioner was granted bail.

Offences Under Section 307 IPC Can’t Be Quashed On The Basis Of Settlement Between Parties: SC

                      To begin with, it has to be appreciated, applauded and admired that after a long spell of time we finally see that the Supreme Court which is the top court of India has finally in the latest landmark case titled State of Madhya Pradesh v Kalyan Singh in Criminal Appeal No. 14 of 2019 [Arising out of SLP (Crl.) No. 5632 of 2014] which was pronounced on January 4, 2019 has finally set all doubts to rest on the nagging question of whether offences under Section 307 of IPC can be quashed on the basis of settlement between parties. In this landmark judgment by a two Judge Bench of Apex Court and which was authored by Justice MR Shah for himself and Justice DY Chandrachud, it has been clearly and convincingly held that under Section 307 of the IPC (Attempt to Murder) cannot be quashed, even when there is any settlement between the complainant and the accused, as it is a non-compoundable offence. Also, in this landmark judgment, the Apex Court Bench comprising of Justice Chandrachud and Justice Shah were considering appeal filed by the state against the High Court order quashing criminal proceedings pending against the present accused under Sections 307, 294 read Section 34 of the IPC.

Without mincing any words, the Supreme Court took to task the Madhya Pradesh High Court for quashing the criminal proceedings against the accused on the ground of compromise between the parties. The Apex Court Bench very categorically and clearly held that, “We are of the opinion that the High Court has committed a grave error in quashing the criminal proceedings for the offences under Sections 307, 294 read with Section 34 of the IPC solely on the ground that the original complainant and the accused have settled the dispute.” Very rightly so!

Starting from the scratch, in para 1 of this landmark and laudable judgment, it is observed that, “Being aggrieved and dissatisfied with the impugned judgment and order dated 29.7.2018 passed by the High Court of Madhya Pradesh in Miscellaneous Criminal Case No. 6075 of 2013, by which the High Court has quashed the criminal proceedings pending against the present Respondent herein by Crime No. 23 of 2013 for the offences under Sections 307, 294 and Sections 34 of the IPC registered at the Police Station Maharajpur, District Gwalior, the State of Madhya Pradesh has preferred the present appeal.”

Going into the nitty-gritty of the present case, it is then pointed out in para 2 that, “That the respondent No. 5 herein-the original Complainant one Birbal Sharma filed a complaint against Respondent Nos. 1 to 4 herein-the original Accused for the offences under Sections 307, 294 read with Section 34 of the IPC. That the said complaint was registered as Crime No. 23 of 2013 at the Police Station Maharajpur, District Gwalior. It appears that the original Accused filed an application for bail which came to be rejected by the learned Sessions Court and, thereafter, the original Accused approached the High Court by filing the Miscellaneous Criminal Case No. 6075 of 2013 under Section 482 of the Cr.PC and requested to quash the criminal proceedings on the ground that the accused and the original Complainant have settled the dispute amicably. That the original Complainant submitted his affidavit stating that he has amicably settled the subject-matter of the crime with the original Accused and that he has no objection for dropping the criminal proceedings. That, by the impugned judgment and order, the High Court in exercise of power under Section 482 of the Cr.PC has quashed the criminal proceedings against the original Accused which were for the offences under Sections 307, 294 read with Section 34 of the IPC, solely on the ground that the original Complainant and Accused have settled the dispute and the original Complainant does not want to prosecute the accused and therefore, there is no chance of recording conviction against the accused persons. At this stage, it is required to be noted that the said application was opposed by the State observing that the offences alleged against the accused are non-compoundable offences and therefore, even if there is any settlement between the Complainant and the Accused, the complainant cannot be quashed. However, despite the above, the High Court quashed the criminal proceedings against the original Accused on the ground that there is a settlement between the Complainant and the original Accused and the original Complainant does not want to prosecute the accused further.”

Be it noted, it is then observed in para 2.1 that, “Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court quashing the criminal proceedings against the accused for the offences under Sections 307, 294 read with Section 34 of the IPC, the State of Madhya Pradesh has preferred the present appeal.”

Going ahead, it is then observed in para 3 that, “We have heard Ms. Swarupama Chaturvedi, learned Advocate appearing on behalf of the State of Madhya Pradesh, Ms. Malini Poduval, learned Advocate appearing on behalf of the original Accused and perused the impugned judgment and order passed by the High Court.”

More importantly, para 3.1 then clarifies that, “It is required to be noted that the original Accused was facing the criminal proceedings under Sections 307, 294 read with Section 34 of the IPC. It is not in dispute that as per Section 20 of the Cr.PC offences under Sections 307, 294 read with Section 34 of the IPC are non-compoundable. It is also required to be noted that the allegations in the complaint for the offences under Sections 307, 294 read with Section 34 of the IPC are, as such, very serious. It is alleged that the accused fired twice on the complainant by a country-made pistol. From the material on record, it appears that one of the accused persons was reported to be a hard core criminal having criminal antecedents. Be that as it may, the fact remains that the accused was facing the criminal proceedings for the offences under Sections 307, 294 read with Section 34 of the IPC and that the offences under these sections are not non-compoundable offences and looking to the serious allegations against the accused, we are of the opinion that the High Court has committed a grave error in quashing the criminal proceedings for the offences under Sections 307, 294 read with Section 34 of the IPC solely on the ground that the original Complainant and the accused have settled the dispute. At this stage, the decision of this Court in the case of Gulab Das and Ors. V. State of M.P. (2011) 12 SCALE 625 is required to be referred to. In the said decision, this Court has specifically observed and held that, despite any settlement between the Complainant on the one hand and the accused on the other, the criminal proceedings for the offences under Section 307 of the IPC cannot be quashed, as the offence under Section 307 is a non-compoundable offence. Under the circumstance, the impugned judgment and order passed by the High Court quashing the criminal proceedings against the original Accused for the offences under Sections 307, 294 read with Section 34 of the IPC cannot be sustained and the same deserves to be quashed and set aside.”

Finally, it is then held in para 4 that, “In view of the above and for the reasons stated above, the present appeal is allowed. The impugned judgment and order passed by the High Court in Miscellaneous Criminal Case No. 6075 of 2013 is hereby quashed and set aside. Consequently, the criminal proceedings being Crime No. 23 of 2013 under Sections 307, 294 read with Section 34 of the IPC registered at Police Station Maharajpur, District Gwalior be proceeded further in accordance with law and on its own merits.”

All said and done, it is a commendable judgment which makes it absolutely clear that offences under Section 307 of the IPC cannot be quashed on the basis of settlement between the parties. Attempt to murder as entailed in Section 307 of the IPC is a very serious offence and so there can be no question of any compromise on it under any circumstances! This is exactly what the Hon’ble Supreme Court has laid down also so succinctly in this landmark case. Any dilution in this under any circumstances is completely unacceptable. This must always be ensured by all the courts from top to bottom always as has very rightly been held also in this landmark and laudable case!

Sanjeev Sirohi

Live-Streaming Of Public Proceeding : Supreme Court

SC Allows Live-Streaming Of Public Proceedings In Larger Public Interest

                                           It must be said with consummate ease that in one of the most landmark, laudable and progressive judgment by the then CJI Dipak Misra, Justice AM Khanwilkar and Dr Dhananjaya Y Chandrachud  which will go forward to a large extent in promoting transparency and probity in judicial proceedings, the Supreme Court in Swapnil Tripathi v Supreme Court of India in Writ Petition (Civil) No. 1232 of 2017 along with Writ Petition (Civil) No. 66 of 2018 and Writ Petition (Civil) No. 861 of 2018 and Writ Petition (Civil) No. 892 of 2018 delivered on September 26, 2018 has clearly and convincingly held that the Court proceedings shall be live-streamed in the larger public interest. The Bench has said categorically that appropriate Rules in that regard will be framed soon under Article 145 of the Constitution of India. It held in no uncertain terms that, “Sunlight is the best disinfectant” while also observing that live streaming of court proceedings will effectuate the “public right to know” and bring in more transparency in judicial proceedings.

                             It may be recalled that it was on July 9 that the novel idea of live streaming of court proceedings in all matters, except in rape cases and matrimonial disputes had found favour with the Bench as well as the Attorney General of India – KK Venugopal while considering the historic petition filed by eminent and senior Supreme Court lawyer Indira Jaising as well as law student Swapnil Tripathi who had challenged the bar imposed on interns entering courtrooms on miscellaneous days. Indira Jaising while stoutly advocating live-streaming had highlighted the need to include safeguards to prohibit unauthorised reproduction of broadcasts. She rightly urged that, “The proceedings will be aired live and hence, it may be open for people to make clippings and create their own copies. Your Lordships must prohibit such production of clips, no matter how big or small, without the authorisation of the court.” She had also urged that there may not be any commercial exploitation of the exercise of broadcasting.

                                    It may be also recalled that on August 3, the then CJI Dipak Misra had asked the petitioner intern Swapnil Tripathi to submit guidelines to the Attorney General KK Venugopal regarding creation of a live streaming room in the Apex Court premises exclusively for law interns and law students. Venugopal had himself suggested that the live telecast of the Apex Court proceedings should be done in only constitutional matters on an experimental basis. He had also submitted that, “My recommendation is that (the live streaming of hearings) may be initially restricted to only cases involving constitutional issues, which the Chief Justice decides, and no other matters, to see the reactions and the responses. Then a decision may be taken one way or the other.”

                         To start with, Justice AM Khanwilkar who authored the judgment for himself and the then CJI Dipak Misra begins in para 1 of the judgment by noting that, “The petitioners and interventionists, claiming to be public spirited persons, have sought a declaration that Supreme Court case proceedings of “constitutional importance having an impact on the public at large or a large number of people” should be live streamed in a manner that is easily accessible for public viewing. Further direction is sought to frame guidelines to enable the determination of exceptional cases that qualify for life streaming and to place those guidelines before the Full Court of this Court. To buttress these prayers, reliance has been placed on the dictum of a nine-Judge Bench of this Court in Naresh Shridhar Mirajkar and Ors. Vs. State of Maharashtra and Ors., (1966) 3 SCR 744 which has had an occasion to inter alia consider the arguments of journalists that they had a fundamental right to carry on their occupation under Article 19(1)(g) of the Constitution; that they also had a right to attend the proceedings in court under Article 19(1)(d); and that their right to freedom of speech and expression guaranteed under Article 19(1)(a) included their right to publish a faithful report of the proceedings which they had witnessed and heard in Court as journalists. The Court whilst considering the said argument went on to emphasise about the efficacy of open trials for upholding the legitimacy and effectiveness of the Courts and for enhancement of public confidence and support. It would be apposite to reproduce the relevant extract from the said decision propounding about the efficacy of hearing of cases in open courts, in the following words: 

“20……. It is well-settled that in general, all cases brought before the Courts, whether civil, criminal, or others, must be heard in open Court. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial Tribunals, courts must generally hear causes in open and must permit the public admission to the court room. As Bentham has observed: “In the darkness of secrecy sinister interest, and evil in every shape, have  full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the spur to exertion, and surest of all guards against improbity. It keeps the Judge himself while trying under trial (in the sense that) the security of securities is publicity’. (Scott v. Scott [(1911) All. E.R. 1,30])”

                                       Going forward, it is then noted in para 2 that, “Indeed, the right of access to justice flowing from Article 21 of the Constitution or be it the concept of justice at the doorstep, would be meaningful only if the public gets access to the proceedings as it would unfold before the Courts and in particular, opportunity to witness live proceedings in respect of matters having an impact on the public at large or on section of people. This would educate them about the issues which come up for consideration before the Court on real time basis.”

                                       Now coming to para 6, it stipulates that, “Indisputably, open trials and access to the public during hearing of cases before the Court is an accepted proposition. As regards the pronouncement of judgments by the Supreme Court, there is an express stipulation in Article 145(4) of the Constitution that such pronouncements shall be made in open Court. Indeed, no such express provision is found in the Constitution regarding “”open Court hearing” before the Supreme Court, but that can be traced to provisions such as Section 327 of the Code of Criminal Procedure, 1973 (CrPC) and Section 153-B of the Code of Civil Procedure, 1908 (CPC).”

                          While spelling out the advantages of live streaming of court proceedings, it is rightly pointed out in para 8 that, “Indubitably, live streaming of Court proceedings has the potential of throwing up an option to the public to witness live court proceedings which they otherwise could not have due to logistical issues and infrastructural restrictions of Courts; and would also provide them with a more direct sense of what has transpired. Thus, technological solutions can be a tool to facilitate actualization of the right of access to justice bestowed on all and the litigants in particular, to provide them virtual entry in the Court precincts and more particularly in Court rooms. In the process, a large segment of persons, be it entrants in the legal profession, journalists, civil society activists, academicians or students of law will be able to view live proceedings in propria persona on real time basis. There is unanimity between all the protagonists that live streaming of Supreme Court proceedings at least in respect of cases of Constitutional and national importance, having an impact on the public at large or on a large number of people in India, may be a good beginning, as is suggested across the Bar.”

                          Not stopping here, it is then pointed out in para 9 that, “Live streaming of Court proceedings is feasible due to the advent of technology and, in fact, has been adopted in other jurisdictions across the world. Live streaming of Court proceedings, in one sense, with the use of technology is to “virtually” expand the Court room area beyond the physical four walls of the Court rooms. Technology is evolving with increasing swiftness whereas the law and the courts are evolving at a much more measured pace. This Court cannot be oblivious to the reality that technology has the potential to usher in tangible and intangible benefits which can consummate the aspirations of the stakeholders and litigants in particular. It can epitomize transparency, good governance and accountability, and more importantly, open the vista of the court rooms, transcending the four walls of the rooms to accommodate a large number of viewers to witness the live Court proceedings. Introducing and integrating such technology into the courtrooms would give the viewing public a virtual presence in the courtroom and also educate them about the working of the court.”

                                    Needless to say, after dwelling in detail on the prevailing system of live streaming of court proceedings in other countries in subsequent paras and after mentioning the suggestions listed in this regard by the Attorney General of India in para 11, it is then pointed out in para 12 that, “As aforesaid, Courts in India are ordinarily open to all members of public, who are interested in witnessing the court proceedings. However, due to logistical issues and infrastructural restrictions in courts, they may be denied the opportunity to witness live proceedings in propria persona. To consummate their aspirations, use of technology to relay or publicize the live court proceedings can be a way forward. By providing “virtual” access of live court proceedings to one and all, it will effectuate the right of access to justice or right to open justice and public trial, right to know the developments of law and including the right of justice at the doorstep of the litigants. Open justice, after all, can be more than just a physical access to the courtroom rather, it is doable even “virtually” in the form of livestreaming of court proceedings and have the same effect.”

                               Delving deeper on this subject, it is then pointed out in para 13 that, “Publication of court proceedings of the Supreme Court is a facet of the status of this Court as a Court of Record by virtue of Article 129 of the Constitution, whose acts and proceedings are enrolled for perpetual memory and testimony. Further, live streaming of court proceedings in the prescribed digital format would be an affirmation of the constitutional rights bestowed upon the public and the litigants in particular. While doing so, regard must be had to the fact that just as the dignity and majesty of the Court is inviolable, the issues regarding privacy rights of the litigants or witnesses whose cases are set down for hearing, as also other eceptional category of cases of which live streaming of proceedings may not be desirable as it may affect the cause of administration of justice itself, are matters which need to be identified and a proper regulatory framework must be provided in that regard by formulating rules in exercise of the power under Article 145 of the Constitution. It must be kept in mind that in case of conflict between competing Constitutional rights, a sincere effort must be made to harmonise such conflict in order to give maximum expression to each right while minimizing the encroachment on the other rights. We are conscious of the fact that in terms of Section 327 of CrPC and Section 153-B of CPC, only court-directed matters can be heard in camera and the general public can be denied access to or to remain in the court building used by the Court. Until such direction is issued by the Court, the hearing of the case is deemed to be an open court to which the public generally may have access. The access to the hearing by the general public, however, would be limited to the size and capacity of the courtroom. By virtue of live streaming of court proceedings, it would go public beyond the four walls of the court room to which, in a given case, the party or a witness to the proceedings may have genuine reservations and may claim right of privacy and dignity. Such a claim will have to be examined by the concerned Court and for which reason, a just regulatory framework must be provided for, including obtaining prior consent of the parties to the proceedings to be live streamed.”  

                              As it turned out, while agreeing with the recommendations and suggestions given by the Attorney General of India, it is then observed in para 14 that, “We generally agree with the comprehensive guidelines for live streaming of Court proceedings in the Supreme Court suggested by the learned Attorney General for India Shri K.K. Venugopal. The project of live streaming of the court proceedings of the Supreme Court on the “internet” and/or on radio and TV through live audio-visual broadcasting/telecasting universally by an official agency, such as Doordarshan, having exclusive telecasting rights and/or official website/mobile applicant of the Court, must be implemented in a progressive, structured and phased manner, with certain safeguards to ensure that the purpose of live streaming of proceedings is achieved holistically and that it does not interfere with the administration of justice or the dignity and majesty of the Court hearing the matter and/or impinge upon any rights of the litigants or witnesses. The entire project will have to be executed in phases, with certain phases containing sub-phases or stages. Needless to observe that before the commencement of first phase of the project, formal rules will have to be framed by this Court to incorporate the recommendations made by the learned Attorney General for India as noted in paragraph 11 above, while keeping in mind the basic issues, such as:-

(i)                To begin with, only a specified category of cases or cases of constitutional and national importance being argued for final hearing before the Constitution Bench be live streamed as a pilot project. For that, permission of the concerned Court will have to be sought in writing, in advance, in conformity with the prescribed procedure.

(ii)              Prior consent of all the parties to the concerned proceedings must be insisted upon and if there is no unanimity between them, the concened Court can take the appropriate decision in the matter for live streaming of the court proceedings of that case, after having due regard to the relevancy of the objections raised by the concerned party. The discretion exercised by the Court shall be treated as final. It must be non-justiciable and non-appealable.

(iii)            The concerned court would retain its power to revoke the permission at any stage of the proceedings suo motu or on an application filed by any party to the proceeding or otherwise, in that regard, if the situation so warrants, keeping in mind that the cause of administration of justice should not suffer in any manner.

(iv)            The discretion of the Court to grant or refuse to grant such permission will be, inter alia, guided by the following considerations:

(a)     unanimous consent of the parties involved,

(b)     even after the parties give unanimous consent the Court will consider the sensitivity of the subjectmatter before granting such permission, but not limited to case which may arouse passion or social unrest amongst sections of the public,

(c)      any other reason considered necessary or appropriate in the larger interest of administration of justice, including as to whether such broadcast will affect the dignity of the court itself or interfere with/prejudice the rights of the parties to a fair trial,

(v)              There must be a reasonable time-delay (say ten minutes) between the live court proceedings and the broadcast, in order to ensure that any information which ought not to be shown, as directed by the Court, can be edited from the broadcast.  

                    What cannot be also missed out here is exactly what para 15 postulates. It states that, “Until a full-fledged module and mechanism for live streaming of the court proceedings of the Supreme Court over the “internet” is evolved, it would be open to explore the possibility of implementation of Phase-I of live streaming in designated areas within the confines of this Court via “intranet” by use of allocated passwords as a pilot project. The designated areas may include:

(a)     dedicated media room which coulld be accessible to the litigants, advocates, clerks and interns. Special provisions must be made to accommodate differently abled people;

(b)     the Supreme Court Bar Association room/lounge;

(c)      the Supreme Court Advocates-on-Record Association room/lounge;

(d)     the official chambers of the Attorney General, Solicitor General and Additional Solicitor Generals in the Supreme Court premises;

(e)     Advocates’ Chambers blocks;

(f)        Press Reporters room.”

             More importantly, it is then mentioned in para 16 that, “It may be desirable to keep in mind other emasures to be taken for efficient management of the entire project such as:

(i)                Appoint a technical committee comprising the Registrar (IT), video recording expert(s) and any other members as may be required, to develop technical guidelines for video recording and broadcasting court proceedings, including the specific procedure to be followed and the equipment to be used in that regard.

(ii)              Specialist video operator(s) be appointed to handle the live broadcast, who will work under the directions of the concerned Court. The coverage itself will be coordinated and supervised by a Court-appointed officer.

(iii)            The focus of the cameras in the court room will be directed only towards two sets of people:

a. The Justices/Bench hearing the matter and at such an angle so as to only show the anterior-facing side of the Justices, without revealing anything from behind the elevated platform/level on which the Justices sit or any of the Justices’ papers, notes, reference material and/or books;

b. The arguing advocate(s) in the matter and at such an angle so as to only show the anterior-facing side of the Justices, without revealing anything from behind the elevated platform/level on which the Justices sit or any of the Justices’ papers, notes, reference material and/or books;

c. There shall be no broadcast of any interaction between the advocate and the client even during arguments.

(iv)            Subject to any alteration of camera angles for the purpose of avoiding broadcast of any of the aforestated papers, notes, reference materials, books and/or discussions, the camera angles will remian fixed over the course of the broadcast.

(v)              This Court shall introduce a case management system to ensure inter alia that advocates are allotted and adhere to a fixed time limit while arguing their matter to be live streamed.

(vi)            This Court must retain copyright over the braodcasted material and have the final say in respect of use of the coverage material.

(vii)          Reproduction, re-broadcasting, transmission, publication, re-publication, copying, storage and/or modification of any part(s) of the original broadcast of Court proceedings, in any form, physical, digital or otherwise, must be prohibited. Any person engaging in such act(s) can be proceeded under, but not limited to, the Indian Copyright Act, 1957, the Indian Penal Code, 1860, the Information Technology Act, 2000 and the Contempt of Courts Act, 1971.”

                                It is then clarified in para 17 that, “We reiterate that the Supreme Court Rules, 2013 will have to be suitably amended to provide for the regulatory framework as per the contours delineated hereinabove. We may hasten to add that it would be open to frame such regulatory measures as may be found necessary for holistic live streaming of the court proceedings, without impinging upon the cause of administration of justice in any manner.”

                               Finally, it is now time to dwell on the concluing paras 18, 19 and 20. Para 18 states that, “In conclusion, we hold that the cause brought before this Court by the protagnoists in larger public interest, deserves acceptance so as to uphold the constitutional rights of public and the litigants, in particular. In recognizing that court proceedings ought to be live streamed, this Court is mindful of and has strived to balance the various interests regarding administration of justice, including open justice, dignity and privacy of the participants to the proceedings and the majesty and decorum of the Courts.” Para 19 envisages that, “As a result, we allow these writ petitions and interventionists’ applications with the aforementioned observations and hope that the relevant rules will be formulated expeditiously and the first phase project executed in right earnest by all concerned. Ordered accordingly.” Para 20 then observes that, “While parting, we must place record our sincere appreciation for the able assistance and constructive suggestions given by the learned counsel and the parties-in-person appearing in the case.”  

                            For the sake of brevity, it is now time to briefly dwell on the important points of the separate judgment delivered by Justice Dr DY Chandrachud. Para 27 states that, “Public confidence in the judiciary and in the process of judicial decision making is crucial for preserving the rule of law and to maintain the stability of the social fabric. Peoples’ access to the court signifies that the public is willing to have disputes resolved in court and to obey and accept judicial orders. Open courts effectively foster public confidence by allowing litigants and members of the public to view courtroom proceedings and ensure that the judges apply the law in a fair and impartial manner.”

                         While stressing on the inevitable importance of technology, it is then pointed out in para 34 that, “In the present age of technology, it is no longer sufficient to rely solely on the media to dleiver information about the hearings of cases and their outcomes. Technology has become an inevitable facet of all aspects of life. Internet penetration and increase in the use of smart phones has revolutionised how we communicate. As on 31 March 2018, India had a total of 1,206.22 million telecom subscribers and 493.96 million internet users. Technology can enhance public access, ensure transparency and pave the way for active citizen involvement in the functioning of state institutions. Courts must also take the aid of technology to enhance the principle of open courts by moving beyond physical accessibility to virtual accessibility.”

                           Truly speaking, Justice Dr DY Chandrchud then in para 38 illustrated the multiple reasons why live streaming will be beneficial to the judical proceedings. It states that, “There are multiple reasons why live-streaming will be beneficial to the judicial system:

a. The technology of live-streaming injects radical immediacy into courtroom proceedings. Each hearing is made public within seconds of its occurrence. It enables viewers to have virtual access to courtroom proceedings as they unfold;

b. Introduction of live-streaming will effectuate the public’s right to know about court proceedings. It will enable those affected by the decisions of the Court to observe the manner in which judicial decisions are made. It will help bring the work of the judiciary to the lives of citizens.

c. Live-streaming of courtroom proceedings will reduce the public’s reliance on second-hand narratives to obtain information about important judgments of the Court and the course of judicial hearings. Society will be able to view court proceedings first hand and form reasoned and educated opinions about the functioning of courts. This will help reduce misinformation and misunderstanding about the judicial process;

d. Viewing court proceedings will also serve an educational purpose. Law students will be able to observe and learn from the interactions between the Bar and the Bench. The archives will constitute a rich source for aspiring advocates and academicians to study legal advocacy procedures, interpretation of the law, and oratory skills, among other things. It will further promote research into the institutional functioning of the courts. Live-streaming and broadcasting will also increase the reach of the courts as it can penetrate to even part of the country;

e. Live-streaming will enhance the rule of law and promote better understanding of legal governance as part of the functioning of democracy;

f.   Live-streaming will remove physical barriers to viewing court proceedings by enabling the public to view proceedings from outside courtroom premises. This will also reduce the congestion which is currently plaguing the courtrooms. It will reduce the need for litigants to travel to the courts to observe the proceedings of their cases;

g. Live-streaming is a significant instrument of enhancing the accountability of judicial institutions and of all those who participate in the judicial process. Delay in the dispensation of justice is a matter of serious concern. Live-streaming of court proceedings will enable members of the public to know of the causes of adjournments and the reasons why hearings are delayed; and

h. Above all, sunlight is the best disinfectant. Live-streaming as an extension of the principle of open courts will ensure that the interface between a court hearing with virtual reality will result in the dissemination of information in the widest possible sense, imparting transparency and accountability to the judicial process.

       Major common law jurisdictions across the globe have already embraced the concept of live-streaming and broadcasting courtroom proceedings. It may be useful to look at the evolution of the concept in a few jurisdictions, and the practices followed by them.”

                           To start with, para 39 sets the ball rolling by pointing out that, “This section takes a measured look at the development of the principle of open justice in common law and other jurisdictions. It examines how courts in other countries have addressed concerns of privacy, confidentiality and sensitivity of litigants, witnesses and cases.”

(i)                United Kingdom

    The Supreme Court of UK permits broadcasting of its courtroom proceedings. The Eighth Practice Direction of the Supreme Court permits “video footage of proceedings before the Court to be broadcast where this does not affect the administration of justice. Three national broadcasters – BBC, ITN and Sky News are permitted to film and broadcast the Supreme Court proceedings in accordance with the protocol which has been agreed with. The protocol prohibits recording of certain types  of proceedings like private discussions between litigants and their counsel. The footage is only allowed to be used for informational purposes in programs like news, current affairs, education and legal training. However, any broadcasting which may detract from the seriousness or integrity of the proceedings, like entertainment programmes, satirical programmes, political party broadcasts, and advertising or promotion, is not permitted. Further, any still images are always required to be used “in a way that has regard to the dignity of the Court and its functions as a working body.

     Sky News airs live broadcasts of the UK Supreme Court’s hearings. By the end of 2011, the UK Supreme Court permitted journalists to use live text-based communications, including social media platform Twitter, during court hearings. The presiding judge, however, retains full discretion to prohibit such communications in the interest of justice. The UK Supreme Court has its own Twitter handle (@UK Supreme Court) which it uses to update the public about its judgments. It also has a YouTube channel where it showcases short summaries of judgments read out by the judges.

      In 2013, the UK permitted audio-visual coverage of the Court of Appeals (Civil and Criminal). The broadcast is subject to certain limitations –(a) only the judgments and lawyers arguments are permitted to be filmed. Victims and witnesses are not recorded; and (b) live broadcasts are delivered with a seventy seconds delay.

      The court retains control over the live broadcast. A single video-journalist is authorised to record and regulate the live proceedings and is bound by the court’s orders. Only the appointed journalist or his substitute is permitted to take pictures in court. The appointed journalist is jointly employed by the four media groups which are funding the project-Sky News, ITN, BBC and the Press Association news agency. Only the appointed journalist or his substitute is permitted to take pictures in court. Although the appointed journalist has the permission to film any of the fifteen courtrooms in which the Court of Appeals may sit, practically, the media organisations pick only one court at a time for live broadcast.

     The Court of Appeals was opened for broadcasting upon the recommendations of the Ministry of Justice, in its 2012 Report.

    Live-streaming of the Court of Appeals hearings opened the doors to other courts in the UK for broadcasting. The UK Parliament enacted the Crime and Courts Act, 2013, which, inter alia, enables recording of court proceedings with the approval of the Lord Chancellor and the Lord Chief Justice. This was enacted as a primary legislation to empower the Lord Chancellor, with the Lord Chief Justice, “to set out in secondary legislation the specific circumstances in which the prohibition on cameras in courts…will be disapplied.”

          In 2016, the Ministry of Justice launched a three-month pilot program to experiment with broadcasting the proceedingss of eight England and Welsh Crown Courts. This was limited to judges sentencing remarks and the footage was not made available to the public. The question of broadcasting the Crown Court’s hearings is currently pending consideration before the Ministry of Justice, as it involves larger issues of safeguarding witnesses and victims.

(ii)              South Africa

In South Africa, the presence of cameras in the courtroom is a recent development and is at a relatively nascent stage. In 2017, the Supreme Court of appeal in South Africa (which is the higehst court of appeal in South Africa) set a precedent permitting broadcasting of proceedings in all courts of South Africa. (The NDPP v Media 24 Limited & others and HC Van Breda v Media 24 Limited & others (425/2017)[2017] ZASCA 97) Now, the media is permitted to live broadcast the proceedings of all South African courts.

(iii)            Canada

The Canadian Supreme Court is considered a pioneer for adapting itself to technology and permitting audio-visual broadcasting of its proceedings. In 1993, the Canadian Supreme Court conducted a successful pilot project, live televising the hearings of three high profile cases. The broadcasts were governed by the following guidelines:

“(a) The case to be filmed will be selected by the Chief Justice.

(b) The Chief Justice or presiding Justice may limit or terminate media coverage to protect the rights of the parties; the dignity of the court; to assure the orderly conduct of the proceedings; or for any other reason considered necessary or appropriate.

(c) No direct public expense is to be incurred for wiring, or personnel needed to provide media coverage.

        The Canadian Supreme Court permits the Canadian Parliamentary Press Gallery to live broadcast all appeals before it. The Canadian Parliamentary Affairs Channel (CPAC) is also allowed to televise the appeal hearings of the Court, but at a later date. The broadcasts are subject to guidelines which ensure that the Court retains control over the filming process. Although the CPAC decides which cases to broadcast, the Supreme Court has the discretion to prohibit the filming of specific appeals. The CPAC is permitted to share the broadcast feed with other television networks, for use as snippets in news programs.

          At present, four cameras are installed in the Supreme Court. The appeal hearings have been broadcast since 2009 and are archived on the Court’s website. The cameras are installed by the Court and are operated by the Court’s employees. Outside cameras are not permitted except for special events. The copyright over the proceedings is retained by the Court. Before any case can be filmed, the Supreme Court requires parties to consent to the recording and television of the proceedings. Any party seeking to exclude their case from the broadcast must convey the same to the Registrar at least two weeks prior to the hearing date.

(iv)            Australia        

             Australia follows an open court system, with courts in all Australian jurisdictions admitting television cameras into courtrooms. Since 2012, audio-visual recordings of the High Court of Australia have been made available to the public. The entire process of filming and broadcasting is carried out by the Court staff. Transcripts of the hearings are made available within a day or two of most hearings. The High Court has stated that initially the recordings will be avaialble after a few business days, however, the Court will endeavour to reduce the number of days.

                  Apart from the High Court, most Australian courts do not maintain a consistent policy on admitting television cameras into the courtroom. Filming is permitted on an ad hoc basis and is usually restricted to the recording of file and overlay footage or ceremonial sittings.

(v)              New Zealand

New Zealand allows wide access to the media in courts and has one of the most progressive live broadcast policies among common law countries. New Zealand permits media houses to broadcast court proceedings with the approval of the court. The broadcast is governed by a set of guidelines which balance the principle of open justice with the need for a fair trial. They impose upon the media the responsibility to provide “an accurate, fair and balanced report of the hearing” without publishing anything out of context. They also provide for a ten minute delay in broadcasting audio and video recordings. Under the guidelines, any media outlet wishing to film and broadcast court proceedings is required to seek prior written permission from the court for each case. The discretion of the court to grant permission is guided by the following considerations:

“a. the need for a fair trial;

 b. the desirability of open justice;

 c. the principle that the media have an important role in the reporting of trials as the eyes and ears of the public;

 d. court obligations to the victims of offences; and

e. the interets and reasonable concerns and perceptions of the parties, victims and witnesses.

       The Supreme Court permits recording of its proceedings in majority of the cases, unless specifically objected to by the parties. The Supreme Court’s media guidelines, published upon its establishment in 2004, indicate that audio-visual covering is to be considered as the norm, rather than the exception:

     “Subject to paragraph (5), all applications to televise or otherwise record proceedings of the Supreme Court will be deemed to be approved unless a party indicates, within 3 days of being advised by the registrar of the application, that the party objects to it.”

(vi)            United States

The US Supreme Court does not permit video recording or photography of its proceedings. It releases audio transcripts of the oral arguemnts on the same day. Audio recordings of each week’s oral arguments are released on the court’s website at the end of the week.

             Each Federal Court of Appeals has the discretion to provide audio or video reocrdings of its proceedings, subject to guidelines framed by the court. Since 2014, the US Court of Appeals for the Ninth Circuit has approved video broadcasting of all cases before it, except those prohibited by law through guidelines. The media needs to take prior approval of the court to record the proceedings. The presiding judge is granted absolute discretion to limit or terminate media covergae, or direct the removal of camera coverage personnel when necessary in order to protect the rights of the parties or aid the conduct of proceedings. The video and audio reocrdings of the federal judiciary are hosted on YouTube and are also available on the court’s official website. The district and lower courts in each state permit some form of audio or video broadcasting and recording of its proceedings, subject to guidelines and rules. (As held by the Supreme Court of the Unioted States in Chandler v Florida, 449 U.S. 560(1981).

(vii)          Brazil

In 2002, the President of Brazil sanctioned a law enabling the creation of a public television channel dedicated to the judiciary and to the Supreme Court. The court sessions of the Supreme Court (Supremo Tribunal Federal) are broadcast online on either ‘TV Justica’ or ‘Radio Justica’ and operated by the Supreme Court. Aside from being aired on television and radio, the proceedings can also be streamed online as the Court maintains a Twitter account and  YouTube channel. The unique feature of the Brazilian Supreme Court is that cameras are permitted into the conferences where the judges deliberate.

(viii)        International Courts

International courts have also embraced the idea of broadcasting their court proceedings. The International Criminal Court (ICC) permits televising of its cases, although with a thirty minute delay. The ICC has a YouTube channel where it broadcasts case proceedings, press conferences, and informative videos in different languages. In the European Court on Human Rights (ECHR), all hearings are permitted to be made public, unless specifically disallowed by the Court. The broadcast is available on the Court’s website on the same day. Broadcast of morning sessions is put up by the afternoon, and the afternoon sessions by evenings. The ECHR states that all hearings are filmed and broadcast of the Court’s website on the day itself, from 14:30 (local time) onwards.

                                 It is rightly underscored by Justice Chandrachud in para 41 that, “Live-streaming of court proceedings is manifestly in public interest. It is important to re-emphasise the significance of live-streaming as an extension of the principle of open justice and open courts. However, the process of live-streaming should be subjected to carefully structured guidelines. Initially, a pilot project may be conducted for about three months, by live-streaming only cases of national and constitutional importance in the Chief Justice’s Court. Progressively, as and when the infrastructure is ready, this Court can expand the ambit of live-streaming to cover all cases (except for the ones which are excluded.)

                             It is also rightly underscored in para 42 that, “The need for live-streaming of proceedings applies with equal and, in some respects, greater force to proceedings of cases in the district judiciary and the High Courts. The pattern of litigation in our country resembles a pyramid. The courts within the district judiciary represent the larger base of the pyramid where citizens have the greatest interface. It is to the Courts comprised in the district judiciary that citizens turn as a point of first access for remedying injustice. At the tip of the pyramid is the jurisdiction of this Court. In terms of volume, the largest amount of litigation emanates in the district judiciary, followed by the High Courts. The engagements of the district judiciary in resolving injustices faced by citizens requires that every citizen should have full access to and knowledge about the proceedings before those courts. Equally, the principle of an open court which has been espoused in this judgment would merit that proceedings before the High Courts should also be live-streamed.”

                            It also cannot be lsot sight of what is pointed out in para 43. It states that, “Live-streaming o proceedings is crucial to the dissemination of knowledge about judicial proceedings and ghranting full access to justice to the litigant. Access to justice can never be complete without the litigant being able to see, hear and understand the course of proceedings first hand. Apart from this, live streaming is an important facet of a responsive judiciary which accepts and acknowledges that it is accountable to the concerns of those who seek justice. Live-streaming is a significant instrument of establishing the accountability of other stake-holders in the justicing process, including the Bar. Moreover, the government as the largest litigant has to shoulder the responsibility for the efficiency of the judicial process. Full dissemination of knowledge and information about court proceedings through l;ive-stremaing thus subserves diverse interests of stakeholders and of society in the proper administration of justice.”      

        
                              To be sure, it is then pointed out in para 45 of Justice Chandrachud’s judgment that, “Comprehensive guidelines for live streaming of Court proceedings have been submitted by Mr K.K. Venugopal, learned Attorney General of India, Ms Indira Jaising, learned Senior Counsel, Mr. Virag Gupta, learned Counsel and Mr Mathews J Nedumpara, learned Counsel. These have been duly considered in framing the model guidelines below. The model guidelines are based on the following broad principles:

a.  Article 145(1) of the Constitution provides:

“Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court..”

Determining the modalities for live-streaming of the proceedings of this Court can appropriately be dealt with under the Rules which should be framed in pursuance of Article 145(1). Regulating, generally, the practice and procedure of the Court would extend to formulating Rules for live-streaming;

b. Not all cases may be live-streamed. Certain sensitive cases like matrimonial or sexual assault should be excluded from the process of live-streaming;

c. Live-streaming will be carried out with a minimal delay to allow time for screening sensitive information or any exchange which should not be streamed;

d. The final authority to regulate suspension or prohibition of live-streaming in a particluar case where the administration of justice so requires, must be with the presiding judge of each court;

e. Live-streaming will be carried out only by persons or any agency authorized under the directions of the Chief Justice of India, or as contemplated in the Rules. The streaming and broadcasting will be hosted by this Court on its website with the assistance of the National Informatics Centre and the Ministry of Electronics and Information Technology;

f.   The copyright over all the material recorded and broadcast in this Court shall vest with this Court only; and

g. The recordings and broadcast may not be used by anyone for commercial purposes.

h. Archives shall be maintained of all live-streaming, to be hosted on the web-site of the Court.”

                             It also cannot be lost on us what para 46 envisages. It stipulates that, “The model guidelines are of a suggested nature and will not detract from the authority of the Court to frame Rules under Article 145(1) in order to determine all the modalities, including (i) the phases in which live-streaming shall be introduced; (ii) the types of cases for which live-streaming of cases will be provided; (iii) authorising the use of appropriate technology; (iv) the agencies through which live-streaming will be implemented; (v) other facets for implementation; and (vi) laying down norms for the use of the feed.

E. Model guidelines for broadcasting of the proceedings and other judicial events of the Supreme Court of India.

A. Kind of matters to be live-streamed

1. Proceedings involving the hearing of cases before the Supreme Court shall be live-streamed in the manner provided below:

a) cases falling under the following categories shall be excluded as a class from live-streaming:

(i) Matrimonial matters, including transfer petitions;

(ii) Cases involving sensitive issues as in the nature of sexual assault; and

(iii) Matters where children and juveniles are involved, like POCSO cases.    

b) Apart from the general prohibition on streaming cases falling in the above categories, the presiding judge of each courtroom shall have the discretion to disallow live-streaming for specific cases where, in his/her opinion, publicity would prejudice the interests of justice. This may be intimated by the presiding judge in advance or live-stremaing may be suspended as and when a matter is being heard; and

c) Where objections are filed by a litigant against live-streaming of a case on grounds of privacy, confidentiality, or the administration of justice, the final authority on livestreaming the case shall lie with the presiding judge.    

2. In addition to live-streaming of courtroom proceedings, the following events may also be live-streamed in future subject to the provisions of the Rules:

(a) Oath ceremonies of the Judges of the Supreme Court and speeches delivered by retiring judges and other judges in the farewell ceremony of the respective Supreme Court Judges; and

(b) Addresses delivered in judicial conferences or Full Court References or any event organized by the Supreme Court or by advocate associations affiliated to the Supreme Court or any other events.

B. Manner of live-streaming

1. Live-streamed and archived videos of the broadcast shall be made available on the official website of the Supreme Court. The recorded broadcast of each day shall be made available as archives on the official website of the Supreme Court by the end of the day;

2. Live-streaming shall commence as soon as the judges arrive in the courtroom and shall continue till the Bench rises;

3. The presiding judge of the courtroom shall be provided with an appropriate device for directing the technical team to stop live-streaming, if the Bench deems it necessary in the interest of administration of justice;

4. Live-streaming of the proceedings should be carried out with a delay of two minutes;

5. Proceedings shall only be live-streamed during working hours of the court;

6. Courtroom proceedings will continue to be live-streamed unless the presiding judge orders the recording to be paused or suspended;

7. To give full effect to the process of live-streaming, advocates addressing the Bench, and judges addressing the Bar, must use microphones, while addressing the Court;

8. Recording of courtroom proceedings shall be done by the Registry with the technical support of National Informatics Centre or any other public/private agency authorised by the Supreme Court or the Ministry of Information and Technology; and

9. The portions of proceedings which are not broadcast online, on the direction of the presiding judge of the Bench shall not be made part of the official records and shall be placed separately as ‘confidential records’.

C. Technical specifications for live-streaming

1. Live-streaming shall be conducted by the Supreme Court with its own camera-persons or by an authorized agency. No person who is not authorized by the Supreme Court will be permitted to record any proceeding;

2. Cameras should be focused only on the judges and advocates pleading before the Bench in the matter being live-streamed;

3. Cameras shall not film the media and visitor’s galleries;

4. Cameras may zoom in on the Bench when any judge is dictating an order or judgment or making any observation or enquiry to the advocate; and

5. The following communications shall not be filmed:

a)   Discussions among the judges on the Bench;

b) Any judge giving instructions to the administrative staff of the courtroom;

c)  Any staff member communicating any message to the judge or circulating any document to the judge;

d) Notes taken down by the judge during the court proceedings; and

e) Notes made by an advocate either on paper or in electronic form for assistance while making submissions to the court.

D. Archiving     

1. The audio-visual recording of each day’s proceedings shall be preserved in the Audio-Visual Unit of the Supreme Court Registry;

2. Archives of all broadcasts of courtroom proceedings which have been live-streamed should be made available on the website of the Supreme Court; and

3. Hard copies of the video footage of past proceedings may be made available according to terms and conditions to be notified by the Supreme Court Registry. The video footage shall be made available for the sole purpose of fair and accurate reporting of the judicial proceedings of the Supreme Court.

E. Broadcast Room

1. The Registry will make one or more rooms or a hall available within the premises of the Supreme Court for the purpose of broadcasting the proceedings. Multiple screens along with the other necessary infrastructural facilities shall be installed, for enabling litigants, journalists, interns, visitors and lawyers to view the courtroom proceedings in the broadcast room(s). Special arrangements will be made for the differently abled.

F. Miscellaneous 

1. The Supreme Court shall hold exclusive copyright over videos streamed online and archived with the Registry; and

2. Re-use, capture, re-editing or redistribution, or creating derivative works or compiling of the broadcast or video footage, in any form, shall not be permitted except as may be notified in the terms and conditions of use and without the written permission of the Registry.”

                                All said and done, it is one of the mopst path breaking judgment ever delivered in the annals of the Supreme Court and will be always remembered in the time to come. It will not just promote more transparency but also enable common man to get well acquainted with how justice is delivered in the top court! All Judges who delivered this landmark judgment, KK Venugopal who is Attorney General for India and who gave invaluable suggestions as also Ms Indira Jaising, Mr Mathew Nedumpara and also the law student Swapnil Tripathi who moved a petition under Article 32 must be all equally appreciated, lauded and commended unequivocally for contributing their best in making this landmark judgment to become a living reality!   

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,