Mere Allegations Of Harassment Without Proximate Positive Action Not Sufficient For Conviction U/S 306 IPC: SC

It has to be said right at the outset that in a landmark, latest and laudable judgment titled Rajesh v State of Haryana in Criminal Appeal No. 93 of 2019 (Arising out of SLP (Cri.) No. 8867 of 2016)  by a two Judge Bench of Supreme Court comprising of Justice L Nageshwara Rao who authored the judgment for himself and Justice MR Shah and delivered on January 18, 2019, the Supreme Court very clearly and convincingly reiterated that conviction under Section 306 of the Indian Penal Code (Abetment of Suicide) is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide. The Bench was considering an appeal in this case against the High Court judgment that had confirmed the conviction of Rajesh for abetting suicide of his brother-in-law, Arvind. It may be recalled that in his suicide note, Arvind had disclosed that false allegations of demand of dowry were made against him and that a Panchayat was also conducted in which he was slapped by the accused. He took the extreme step of committing suicide as he was unable to withstand the harassment and had said in the suicide note that his in-laws including the accused are responsible for his death.

To start with, this landmark judgment begins by first and foremost pointing out in para 1 that, “The Appellant was convicted under Section 306 of the Indian Penal Code, 1860 (hereinafter referred to as “the IPC”) and sentenced to undergo five years rigorous imprisonment. The appeal filed by the Appellant was dismissed by the High Court. Hence, this appeal.”

To recapitulate, the ball is then set rolling in para 2 wherein it is pointed out that, “According to the complaint filed by Bharat Singh (PW-1), his son Arvind was married to Manju, daughter of Laxmi Narayan on 07.11.2000. Indera is the sister-in-law of Arvind and the Appellant Rajesh is his brother-in-law. Arvind committed suicide on 23.02.2002 by consuming Sulfas tablets. On 01.03.2002 when Bharat Singh and other family members entered into the room of Arvind to sprinkle Gangajal, they found a suicide note on the bed of the deceased. It was stated that Arvind committed suicide due to the behavior of the Appellant, Laxmi Narayan and Indera who made false allegations against deceased regarding demand of dowry. A Panchayat was held in the village at the instance of the accused during which the Appellant slapped the deceased. The Appellant and his sister Indera used to threaten the deceased on telephone at the instance of their father Laxmi Narayan.”

Elaborating further, it is then pointed out in para 3 that, “In the suicide note, the deceased Arvind stated that false allegations of demand of dowry were made against him and that a Panchayat was also conducted in which there was an attempt to assault him. There were continuous threats from his father-in-law (Laxmi Narayan), his brother-in-law (Appellant) and the sister-in-law (Indera) that his family members will also be implicated in a criminal case. Unable to withstand the harassment, the deceased took the extreme step of committing suicide and held his father-in-law, the Appellant and his sister-in-law responsible for his death.”

Going forward, para 4 then goes on to further elucidate that, “On completion of investigation, a charge-sheet was filed under Section 306 IPC. 12 witnesses were examined on behalf of the prosecution and Manju, wife of the deceased was examined as DW-1. On a consideration of the oral and documentary evidence, the Trial Court held the Appellant, his father and sister guilty of committing the offence under Section 306 IPC. The Appellant and his father Laxmi Narayan were sentenced to imprisonment of five years. Accused Indera was sentenced to three years imprisonment on being convicted for committing an offence under Section 306 IPC. The Trial Court took note of the Panchayat that was held in September 2001 which was five months prior to 23.02.2002 on which date Arvind committed suicide. Reference was also made to the evidence of PW-1 (Bharat Singh) who stated that he and his son Arvind (deceased) had forgotten about the Panchayat episode in view of the apology tendered by the accused. However, the Trial Court observed that continuous threats held out by the accused to implicate the deceased and his family members in a false dowry case assume importance. The Trial Court also relied upon the suicide note to hold the accused guilty of the offence of abetment to suicide. The version of the defence that Arvind Committed suicide due to his depression, due to unemployment and lack of income, was rejected.”

Not stopping here, para 5 then goes on to further elaborate stating that, “The appeal filed by the Appellant was dismissed by the High Court. The conviction and sentence of Laxmi Narayan and Indera were set aside by the High Court by the same judgment. The High Court referred to the suicide note Exhibit ‘PA’ to conclude that there was no error committed by the Trial Court in convicting the Appellant. The High Court also relied upon the evidence of PW-1 and PW-5 who spoke about the convening of the Panchayat by the accused in September, 2001 during which false allegations were made against the deceased. The High Court upheld the conviction of the Appellant while acquitting his father and sister, only on the ground that the Appellant slapped Arvind during the Panchayat which was conducted in September, 2001.”

Be it noted, para 6 then goes on to illustrate that, “It is no doubt true that Arvind committed suicide on 23.02.2002. He left a suicide note which was found by his family members on 01.03.2002. There is also no dispute that Arvind blamed his father-in-law (Laxmi Narayan), his sister-in-law (Indera) and the Appellant for harassment and threats that he would be implicated in a false case of demand of dowry. Admittedly, a Panchayat was held in September, 2001 during which the accused leveled allegations of demand of dowry by Arvind. More than five months thereafter, Arvind committed suicide on 23.02.2002. In the meanwhile, according to the prosecution, Arvind was being threatened by the accused through telephone conversations. The point that arises for our consideration is whether the Appellant can be held guilty for committing an offence under Section 306 IPC in the facts and circumstances of the case.”

It would be pertinent to mention here that para 8 then goes on to add stating that, “Conviction under Section 306 IPC is not sustainable on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide. In order to bring a case within the purview of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC. (See Amalendu Pal alias Jhantu v. State of West Bengal (2010) 1 SCC 707).”

More importantly, it is very rightly held in para 11 that, “We are of the opinion that the evidence on record does not warrant conviction of the Appellant under Section 306 IPC. There is no proximity between the Panchayat held in September 2001 and the suicide committed by Arvind on 23.02.2002. The incident of slapping by the Appellant in September, 2001 cannot be the sole ground to hold him responsible for instigating the deceased to commit suicide. As the allegations against all the three accused are similar, the High Court ought not to have convicted the Appellant after acquitting the other two accused.”

Most importantly, it is then held in para 12 that, “We are not in agreement with the findings of the Trial Court that the deceased (Arvind) committed suicide in view of the continuous threats by the accused regarding his being implicated in a false case of demand of dowry. The evidence does not disclose that the Appellant instigated the deceased to commit suicide. There was neither a provocation nor encouragement by the Appellant to the deceased to commit an act of suicide. Therefore, the Appellant cannot be held guilty of abetting the suicide by the deceased.” Very rightly so!

Finally, the last para 13 then concludes by stating that, “For the aforementioned reasons, the appeal is allowed and the conviction and sentence of the Appellant is set aside. His bail bonds stands discharged.” There can be no denying or disputing it! The Apex Court has given valid and compelling reasons for holding so as we have already discussed above!

It also rightly cited the case of Praveen Pradhan v State of Uttaranchal (2012) 9 SCC 734 in para 10 wherein it was held that, “Words uttered in a fit of anger or omission without any intention cannot be termed as instigation.” The accused neither provoked nor encouraged the deceased to commit an act of suicide then how could he be held liable for the same? This was what the Apex Court also very rightly concluded in this landmark, latest and laudable judgment for which it has to be richly commended!

Sanjeev Sirohi,

Why Should They Speak Lies: Deceased’s Parents Are Most Natural Witnesses In Dowry Death Cases: SC

 

        To begin with, in a latest, landmark and laudable judgment authored by Justice Abhay Manohar Sapre for himself and Justice Indu Malhotra, the Supreme Court in Mahadevappa v State of Karnataka Rep. By Public Prosecutor in Criminal Appeal No. 1261 of 2008 on January 7, 2019 upheld the conviction of a man accused of dowry death, relying largely on the evidence of his deceased wife’s parents and relatives. The Apex Court Bench also upheld the High Court finding that this was a case of homicidal death and not a case of accidental death. This judgment thus reposed complete faith in the testimony of deceased’s parents and termed them  as most natural witnesses in dowry death cases.

Needless to say, the prosecution had alleged that the accused had poured kerosene oil on his wife Rukmini Bai when she was in kitchen and had set her on fire. The Trial Court had then acquitted him while holding that the prosecution was not able to prove the charge of demand of dowry against him. It had also held that there is no proof that she suffered homicidal death.

As it turned out, the High Court, on state’s appeal had reversed these findings and convicted the accused. The accused then challenged the conviction before the Apex Court. But the Apex Court too did not find merit in his arguments.

To be sure, it is rightly pointed out in para 17 that, “Having heard the learned counsel for the parties and on appreciating the entire evidence, we are inclined to agree with the reasoning and the conclusion of the High Court.” Para 18 then further points out that, “In our view, the High Court was right in holding that a case of the appellant’s conviction under Section 498-A and Section 302 IPC was made out by the prosecution beyond the reasonable doubt and, therefore, the appellant has to be convicted and accordingly sentenced for commission of twin offences punishable under Sections 498-A and 302 IPC.”

Simply put, it is then acknowledged in para 19 that, “On appreciating the evidence and on perusal of the record of the case, we find that it is not in dispute that Rukmini Bai died within 17 months of her marriage with the appellant (date of marriage is 4.6.1994 and date of her death is 2.10.1995). It is also not in dispute that Rukmini Bai was not suffering from any kind of ailment and was a healthy woman. It is also not in dispute that the death occurred due to severe burn injuries suffered by her on 02.10.1995.”

More importantly, it is then revealed in para 22 that, “PW-1 is the father of the deceased- Rukmini Bai. He deposed in his evidence that the appellant was working as a Constable in the State Police Department. He was addicted to consuming alcohol daily. He often visited to the house of PW-1 in fully drunken condition. He deposed that Rukmini Bai had told him and his wife (mother of Rukmini Bai) that under the influence of alcohol, the appellant used to insist Rukmini Bai that she should also consume liquor and dance before him undressed. He also deposed that Rukmini Bai had told him many a times that the appellant used to harass and ill-treat her off and on in the house. He also deposed that Rukmini Bai also used to tell him that  the appellant also used to beat her while he was under the influence of liquor and used to insist her to go to her parental house to bring Rs. 4000/- to Rs. 5000/- from her parents for him. He further deposed that on two occasions, he managed to send Rs. 2000/- for the appellant through Rukmini Bai but third time, he declined due to his poor financial capacity to send more money. He deposed that Rukmini Bai once told him that she apprehends danger to her life when she is alone with the appellant and, therefore, she would like to come back and stay with her parents in their house. He deposed that with the intervention of elder members of the village, Rukmini Bai was persuaded to go back and stay with the appellant for which she agreed.”

Continuing in the same vein, it is then revealed in para 23 that, “He deposed that Rukmini Bai on returning to her matrimonial house found that the appellant was not mending his ways, and continued with his bad habits. She had therefore sent a letter to her father mentioning the incidents of ill-treatment meted out to her by the appellant. He also deposed that on receipt of the letter from Rukmini Bai, his wife Savitribai and his elder brother’s wife – Droupadi had gone to the appellant’s house but the appellant abused both the ladies and did not permit them to meet Rukmini Bai. He deposed that the appellant on that day went to the extent of beating the two ladies with his shoes. The two ladies then went to the Police Station and requested the in-charge of the police station to advise the appellant to behave properly with his wife. On return back to home, both the ladies told the incident to their elder brother who then contacted Rukmini Bai when she told him to send Rs. 3000/- for the appellant failing which allow her to come back to her father’s house.”

Going forward, it is then stated in para 24 that, “PW-1 further deposed that after eight days, a message came to him at his residence that Rukmini Bai has suffered extensive burns on her body and is admitted in the hospital for treatment. He, therefore, immediately left for the hospital along with his relatives and friends. On reaching there, he met Rukmini Bai when she told him that it was the appellant who poured kerosene oil on her body, due to which she suffered injuries.”

As it turned out, it is then observed in para 25 that, “PW-4 (Savitribai) is the mother of deceased. On perusal of her deposition, we find that she has corroborated the evidence of PW-1 which we have detailed above on all material issues. In other words, PW-4 also has given the same version of the appellant which PW-1 has given in his deposition including about the behavior of the appellant and the way he had ill-treated Rukmini Bai all along till her death.”

As anticipated, para 26 then very rightly observes that, “We, therefore, need not repeat in verbatim the deposition of PW-4 except to state that her deposition is also on the same lines on which PW-1 has given his statement and it fully corroborates with the version of PW-1 on all material issues about the appellant without any contradiction between the two versions.” Furthermore, it is then aptly stated in para 27 that, “Now, we come to the evidence of PW-5. He is another son-in-law of PW-1. His name is Bhimappa. He is brother of the appellant. He was married to PW-1’s another daughter- Sonabai. His marriage was also performed on the same day on which the appellant got married to Rukmini Bai.” Para 28 then further states that, “He also deposed that the appellant used to ill-treat Rukmini Bai and at times beat her also. He deposed that one of his relatives-Krishnappa when he visited Rukmini Bai’s house, she complained to him about the bad behavior of the appellant towards her. This was told to him by Krishnappa.”

To put things in perspective, para 29 then elucidates that, “Now, we come to the evidence of PW-17 (Kristappa). He is a close relative of Eknath (PW-1) – father of the deceased. He deposed that once he went to Rukmini Bai’s residence and when he was on his way to a Temple at Tulasigeri, Rukmini Bai met him and complained against the appellant and told him to convey to her father (PW-1) to send money for the appellant.”

In essence, it is then clarified in para 30 in no uncertain terms that, “On a perusal of the evidence of the aforementioned four prosecution witnesses, it proves in clear terms that firstly the appellant was addicted to consuming liquor. Secondly, he used to demand money from the deceased and her parents quite often; and thirdly, he also at times used to ill-treat and assault the deceased. The incident of ill-treatment and demand of money did not occur once but on many a times and it started soon after the marriage which continued till Rukmini Bai’s death.”

It cannot be lost on us that the Supreme Court Bench while appreciating and upholding the evidentiary value of the parents of the deceased then without mincing any words states explicitly in para 31 that, “In our opinion, there is no reason to discard the evidence of the father and mother of the deceased who are the most natural and material witnesses to speak on such issues. Indeed, in such circumstances, the daughter – a newly married girl would always like to first disclose her domestic problems to her mother and father and then to her close relatives because they have access to her and are always helpful in solving her problems.”

What’s more, it is then held in para 32 that, “We have not been able to notice any kind of contradiction on any of the material issues in the evidence of these four witnesses despite they being subjected to lengthy cross-examination by the defense. That apart, why should a mother and a father speak lie unless there are justifiable reasons behind it. We do not find any such reason in this case. Not only that, even their relatives, i.e., Bhimappa and Kristappa supported their version.”

Not stopping here, it is then held in para 33 that, “We are, therefore, of the opinion that the acts and the behavior of the appellant (husband) towards his wife – Rukmini Bai soon after their marriage which eventually culminated in Rukmini Bai’s death within seven years from the date of their marriage squarely fell within the meaning of Section 498-A Explanations (a) and (b) of IPC.”

Having said this, it would be imperative to now examine on what the Bench held regarding the death of Rukmini Bai being homicidal or accidental. While shedding enough light on it, the Bench observed in Para 38 that, “Having perused the evidence, we are of the considered opinion that Rukmini Bai died due to pouring of Kerosene oil and setting her body on fire and this act could be done only by the appellant and by no one else. In other words, it was a case of homicidal death and not a case of accidental death. It is proved by following circumstances.”

No doubt, para 39 sets the ball rolling by observing clearly and convincingly that, “First, it is not in dispute that the incident in question occurred in the house when only the deceased and the appellant were present. In other words, the appellant was the only person present at the time of incident in the house with the deceased.” Para 40 then states that, “In these circumstances, it was the appellant who could give some plausible explanation as to how and in what manner the incident in question occurred. As mentioned above, the explanation given by the appellant was that Rukmini Bai’s sari  accidentally caught fire when she was boiling the water on the oven. In our opinion, this story of the appellant cannot be believed.”

Moving ahead, it is then observed in para 41 that, “Second, the evidence of I.O., Post-Mortem Report, FSL report and the evidence of doctor (PW-6) has proved that kerosene oil was found on the body of deceased and second, one bottle of kerosene oil was also lying in the room. The presence of kerosene oil on the body of deceased would indicate that the kerosene oil was poured on her body. Since the appellant was the only person present in the room (kitchen), it was he who could do it.”

To put it succinctly, para 42 then spells out that, “Third, the presence of broken bangles found in the room suggest that the deceased must have struggled with the appellant to save herself which resulted in breaking of her bangles.” Furthermore, para 43 then states that, “Fourth, had it been a case of catching of simple fire from the oven, then in such event, the smell of kerosene oil from the body of the deceased would not have been found on her body.”

While explicitly ruling out the possibility of deceased committing suicide, it is then observed in para 44 that, “Fifth, it is nobody’s case that the deceased tried to commit suicide by pouring kerosene oil on her and then put herself on fire.”

Bluntly put, para 45 then exposes the sharp differences between the appellant and the deceased while pointing out that, “Sixth, the relations between the appellant and deceased were not cordial. The appellant always used to demand money from the deceased which she was not in a position to give to the appellant.”

While again ruling out the possibility of accident as the cause of her death, it is then pointed out in para 46 that, “Seventh, had this been a case of accident as suggested by the defense then burn injuries sustained by the deceased would have been more on the lower part of her body rather than the upper part of the body because according to defense, the deceased was near to oven when her sari caught fire. The post-mortem report, however, showed that the burn injuries were more on her upper part and her blouse was found burnt.”

To say the least, it is then again reiterated in para 47 that, “In the absence of any plausible explanation given by the appellant and the one which was suggested but not having been proved and further keeping in view the circumstances, the manner in which the incident occurred and material seized from the room i.e. kerosene and bottle, it is proved beyond reasonable doubt that the appellant was responsible for causing death of Rukmini Bai. In other words, Rukmini Bai’s death was homicidal and not accidental.”

Curiously enough, it is then pointed out in para 48 that, “Learned counsel for the appellant argued that some of the witnesses of the prosecution did not support their case, and turned hostile. It is for this reason, learned counsel submitted that the prosecution case should be discarded.”

It is a no-brainer that all this did not impress the Bench and it is then observed in para 49 that, “We do not agree to this submission of the learned counsel for the appellant. The evidence of four prosecution witnesses which we have detailed above fully proves the case of the prosecution. In this view of the matter, even if, some witnesses might have turned hostile, yet it would be of no significance and nor it would adversely affect the case of the prosecution. It is more so when the witnesses which we have referred above did not turn hostile and were, therefore, rightly believed by the High Court.”

Lastly, it is then held in para 50 that, “In view of the foregoing discussion, we agree with the reasons and the conclusion of the High Court. As a result, the appeal fails and is accordingly dismissed.”

On a concluding note, we thus see that in this case, the Apex Court relied on what the deceased parents said and treated their evidence as most natural witnesses in dowry death cases. It is well known that a newly married girl would always prefer to first confide in her parents rather than on others on what all is happening at her in-laws house. No wonder then that even the Apex Court Bench also in this landmark case rightly acknowledged this and very rightly accepted their evidence and refused to buy the arguments put forth by the appellant which culminated in his appeal getting dismissed finally!

Sanjeev Sirohi,

How to seek Bail in false 498A/406 IPC

Matrimonial cruelty is the cruelty to which women is subjected to, by her husband and his relatives. Cruelty in matrimonial terms is physical and mental torture caused by the actions of husband and his relatives towards wife.

To deal with matrimonial cruelty our constitution makers inserted section 498a in Indian Penal Code which reads as under :-

Husband or relative of husband of a woman subjecting her to cruelty —Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.

For the purpose of this section, “cruelty” means—

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

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

Effectiveness of IPC Section 498A on society

The object of our framers of constitution is to safeguard the women from harassment at their matrimonial home. But some of the women makes this law as tool of extortion or we can say weapon to fulfill their desires and throw out their frustration as revenge by humiliating the husband and his relatives in front of society. Not every cruelty is matrimonial cruelty under 498a until there was a demand of dowry.

What a great irony is that, where our law has foundation on the principle that says, let a hundred guilty be acquitted, but one innocent should not be convicted, is it really the question of conviction or acquittal?

It’s all about the mental torture from which, one have to suffer due to false allegation put on him with ulterior motive. As we can conclude this is due to rigidity of our procedural law. Nowadays courts also think on this negative step taken by women to trap the innocent people and passed several bail orders keeping in mind various aspects on valid grounds during trial. The main concern of granting bails is the tenet principle that is, “ei incumbit probation qui dicit, non qui negat” which means one is considered innocent unless proven to be guilty. In recent judgement Social Action Forum for Manav Adhikar and another v. Union of India, Supreme Court modifies the earlier directions issued to prevent misuse of 498a in Rajesh Sharma v. UOI case.  Supreme Court removes welfare committees and safeguarded the husband and his relatives by inserting a anticipatory bail provision in dowry harassment cases.

Grounds considered by Courts while granting Bail in recent judgements

1.    Nitesh Arora v. State Govt. of NCT Delhi, 18 July 2018, Delhi High Court

Petitioner had offered to return some of the dowry articles complainant claims to be and in the meantime files an application seeking permission to travel to USA for an assignment. It is also mentioned that the visa of the petitioner is due expire soon and its extension should be necessary for completion of assignment assigned to him by the employer, visa would only be applied once he reached USA.

2.    Lalit Singh Negi v. State, 17 April 2018, Delhi High Court

Court held that as all the stridhan had returned no case of custodial interrogation is made out.

3.    Parag Bansal & Ors. v. State, 12 January 2018, Delhi High Court

It is contended that FIR was lodged after filing an application u/s 125 Cr.P.C. . It is also contended that all the allegations are false.  The complainant, who is well educated and is practicing as an advocate and aware of her rights, has sought to improve upon her story, to falsely implicate the petitioners.

4.     Akshay Kumar v. The state Govt. of NCT Delhi, 13 November 2017, Delhi High Court

Complainant demanded a sum of money to dissolve marriage and threatened to harass and humiliate the petitioner and his family, in case they not give her said amount. Complainant stayed with the petitioner only for two months after marriage. Court contended that there is no need of custodial interrogation and granted anticipatory bail with some conditions.

 

5.    State v. Harshadrai Jani & ors., 26 October 2018, Delhi District Court

There was no documentary proof such as MLC of the said allegations by the complainant. Court concluded that prosecution has failed to prove offence U/s 498A/406/420/34 IPC and section 3 and 7 Dowry Prohibition Act, 1961 against the accused persons beyond reasonable doubt.

 

Kapil Chandna Advocate

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.

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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.