Arbitration involving consortium of an Indian and foreign entity

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

By- Amiy Kumar,

Background of the Case: 

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

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

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

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

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

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

 

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

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

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

Power of Supreme Court to transfer suits, etc.

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

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

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

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

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

Scope

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

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

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

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

Parameters Court Consider while allowing the Transfer of Petition

1.     Distance Travel to attend the proceedings.

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

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

4.     Merits of the case

5.     Allegations

Recent Judgements in favor of women

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

 

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

 

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

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

 

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

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

 

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

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

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

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

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

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

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

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

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

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

 

PILs IN THE SUPREME COURT OF INDIA…!!!

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

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

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

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

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

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

 

Difference between a writ and a PIL..??

 

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

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

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

 

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

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

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

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

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

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

 

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

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

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

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

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

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

 

How to file a PIL in Supreme Court of India

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

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

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

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

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

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

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

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

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

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

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

l  Some of the Landmark PILs of the Supreme Court

Vishaka v. State of Rajasthan

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

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

M. C. Mehta v. Union of India

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

Hussainara Khatoon v. State of Bihar

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

l  Issues that cannot be filed under PIL?

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

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

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

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

Conclusion

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

 

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

 

What is considered as a civil case?

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

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

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

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

 

 What is said to be a criminal case?

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

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

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

 When can a civil action become criminal?

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

 

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

 

 

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

By:-Dushyant Mainali

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

Public conduct of public servants and Defamation.

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

S.499 : Defamation

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

…………………………..

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

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

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

Doctrine of Fair Comment and Exaggerated News

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

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

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

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

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

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

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

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

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

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

Liability of Editor under Press Registration and Books Act

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

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

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

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

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

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

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

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

Conclusion:-

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

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

 

How to get bail in Section 420 IPC

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

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

 

Essential elements of Section 420

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

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

 

Cheating

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

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

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

Acting dishonestly

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

Mens rea

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

 

How Cheating is to be proved

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

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

 

Cognizance of an offence under Section 420

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

 

  • Getting a bail under 420 IPC

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

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

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

 

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

Sanjeev Sirohi

Live-Streaming Of Public Proceeding : Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a)     unanimous consent of the parties involved,

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

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

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

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

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

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

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

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

(e)     Advocates’ Chambers blocks;

(f)        Press Reporters room.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(i)                United Kingdom

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

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

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

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

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

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

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

(ii)              South Africa

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

(iii)            Canada

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

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

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

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

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

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

(iv)            Australia        

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

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

(v)              New Zealand

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

“a. the need for a fair trial;

 b. the desirability of open justice;

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

 d. court obligations to the victims of offences; and

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

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

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

(vi)            United States

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

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

(vii)          Brazil

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

(viii)        International Courts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A. Kind of matters to be live-streamed

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

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

(i) Matrimonial matters, including transfer petitions;

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

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

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

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

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

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

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

B. Manner of live-streaming

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

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

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

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

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

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

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

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

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

C. Technical specifications for live-streaming

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

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

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

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

5. The following communications shall not be filmed:

a)   Discussions among the judges on the Bench;

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

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

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

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

D. Archiving     

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

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

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

E. Broadcast Room

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

F. Miscellaneous 

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

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

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

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

Men Too Have Right Not To Be Defamed And Denounced

“You do me favors, I do you favors 30 years later

lets call it “me too”

A strong woman does not wait 30, 20, 10 years to speak up, she slaps him on the first “bad touch” and knocks him out

Don’t hide your weakness, the favors in returns that you enjoyed and the work you got by “I was too scared” cry now

You were scared to say NO then because its hard to stand up for what is right and you were scared to loose your status and position in the work place, so YOU CHOOSE to accept the molestation and went back for more …Its very easy to play the abla nari card later and gain sympathy

The Shakti does not wait later to speak up, she silences the evil on spot…

My thoughts on this nonsense of me too

I don’t have me too stories …anyone who tried got a tight slap then and there and I was never afraid to walk out with my head held high ..be it a Job or relationship!

“strong women don’t have me too sob

Stories, they have I gave him thappad

(slap) back short essays”.”

–        Geetanjali Arora in Sunday Times of India dated October 21, 2018

                                              First and foremost, I must laud, laud and laud Geetanjali Arora for what she has written so courageously on 9 October at 5.35 pm which got published on October 21 in one of the most reputed newspapers of India – The Times Of India! Why should women be treated always as victims? Why should women keep quiet for many decades and then speak up if she herself has nothing to hide from the world?

                                                  Even as this “#MeToo” campaign is being celebrated all over the world after American actress and activist Alyssa Milano kickstarted it by sending out a tweet asking anyone who’s faced sexual harassment or violence to write ‘me too’ as a reply which elicited a huge response in 85 countries, let me not shy away from saying that I very strongly feel that even men too have right not to be defamed and denounced before being tried in court of law in accordance with due procedure! This media trial even before the court trial has begun can never be justified under any circumstances! When women has nothing to hide from the world then why should there not be court trial instead of media trial?

                                                It cannot be ignored that even BJP lawmaker Udit Raj has termed the “#MeToo” movement as “wrong practice” and questioned the relevance of making sexual harassment allegations against anybody after 10 years. He has rightly questioned that, “What if complaints outing men for allegedly sexually harassing women proved wrong and the prestige of a man was destroyed? Taking action or seeking resignation of an accused merely on a complaint merely on a complaint of sexual exploitation means there is no need of police or the judicial system! Considering oral or written complaint of the victim of sexual exploitation as a judgement and taking action or seeking resignation means there is no need of police or judicial system. What if the matter proves wrong? Can the soiled prestige of a man be restored? The #MeToo movement has intensified in the country with more women recounting their experiences of sexual harassment in the entertainment and media industry. There are several instances where women did this after taking money and then moved on to the next target.”

                                         Does men have no right? Should only women have all the right to speak up whenever she likes? Very few know that a woman had levelled serious allegations against eminent film actor Jitender about an act allegedly done by him 47 years ago when she was very young but the Himachal Pradesh High Court didn’t accept it and rejected the petition as it said that the time limit of lodging the complaint within the limitation period of 3 years was not complied with! Similarly MJ Akbar was left with no option but to resign as Union Minister of State for External Affairs even before the charges have been proved against him in any court and he too became a victim of “MeToo Media Trial”! Hang him if he is guilty but condemning him even before charges have been framed against him in any court and tarnishing his “impeccable reputation” which he has earned in his entire life in just few seconds cannot be justified under any circumstances!

                                           Is he not entitled to the benefit of the due process of law and legal defence? Should he not be given a chance to prove his innocence? There are many senior women journalists like Tavleen Singh who have always appreciated him and have said that they have never experienced any such “alleged misconduct” from him but this is never highlighted in the media! Most recently, a woman journalist deposed in court in his favour and admired his upright approach in always dealing with her. Only the numbers are highlighted that 16 or 17 women have levelled most serious charges against him but I want to ask: Why they never dared to lodge FIR against him in any police station of India till now? Why they kept quiet for so many years? Why inspite of being professional they chose to keep quiet? Were they not aware of their legal rights? Why did they not immediately complaint? Why they didn’t spill the beans earlier? Why was there a consensual conspiracy of silence? Why were they lured to keep quiet? Why they compromised themselves just for getting some material benefit? Are they not guilty just like an adulterous women?   

                                   Union Minister Pon Radhakrishnan asked: “If someone makes an allegation that such a thing happened when the incident happened we were playing together while in class 5. Would it be fair? The ‘MeToo’ movement had sullied the image of the country. Will it be right for men to start making similar accusations like them.” Even Union Minister for Tourism K Alphons has cautioned against frivolous complaints by “insincere” people with an agenda. He said that, “People should be extremely careful when they raise an allegation. Yes, if something inappropriate has taken place, it should be in public domain. There should not be any doubt about it, but I hope frivolous complaints are not raised by insincere people to fix people whom they do not like.” Just recently KWAN founder Anirban Das attempted suicide after sexual misconduct allegations but was saved by an alert police team patrolling the Navi Mumbai bridge! There are very few who care for what “mental trauma” a man undergoes when false allegations are levelled against him and he is defamed by “media trial” to the fullest even before charges are framed against him in any court! This must stop once and for all as it mutilates and maims to pieces a men’s integral right to reputation and right not to be defamed and denounced even before any court takes cognizance of the charges levelled against him!   

                                                It is rightly pointed in ‘The Times Of India’ editorial dated October 23, 2018 that, “The biggest threat to #Me Too is not fears of a male backlash over public shaming but anonymous complaints with sole intent to defame. Anonymous complaints have dangerous repercussions for personal lives, families and companies. Something as real and pervasive as corporate or professional rivalry and personal animosity can set the ball rolling. This then becomes less about #MeToo and more about settling scores, hurting companies financially, or even gaming and subverting #MeToo. Social media platforms also have a responsibility in such cases to remove the defamatory, anonymous material before it does more damage to reputations.”

                                                What has really shaken me most is the enlightening editorial written by Ramesh Thakur who is Professor of Public Policy, Australian National University in ‘The Times Of India’ dated November 9, 2018 titled “Believe Evidence Over Gender” which begins by coming straight to the point saying that, “The #MeToo campaign began as a long overdue effort to call out men abusing positions of power and authority to exploit vulnerable women sexually, but then morphed into some settling of scores for dates gone wrong. In the age of social media, #MeToo swarms of screaming mobs, and bird-dogging, the wildest accusations are amplified instantaneously across the whole world. This makes the charge themselves a powerful political weapon.” He rightly suggests the following to check mud slinging matches: “First, ensure anonymity for both or neither. Name only the guilty party after the trial. If the verdict is inconclusive, keep all names confidential. Second, treat both accuser and accused with sympathy, respect and courtesy. Evaluate the testimony of both with equal skepticism, ask questions accordingly, and weigh their statements against the facts. Everyone deserves a fair hearing: no one deserves to be believed in the absence of evidence; and shifting evidence and timeline to suit the narrative warrants over suspicion. Third, match the prosecution and penalty for false accusations to those of conviction. This will put in place a powerful deterrent. Without consequences, the political weaponisation of false charges will continue. Above all, believe evidence over gender. Senator Susan Collins was branded a rape apologist for doing so.”

                                                   Just recently we saw how in a landmark judgment titled ‘Joseph Shine v Union of India’, the Supreme Court very rightly decriminalized adultery as it felt that sex with consent cannot be crime! Law has to change with time. Even the definition of rape needs change and sex with consent should not be termed rape. A woman after having consensual sex with a men for many years cannot and should not be allowed suddenly to scream rape and play the victim card by weeping!  The moot question that arises here is: Why the women promptly didn’t lodge complaint if she was forced to enter into sexual relationship? Also, why always men alone be condemned? What if it was women who lured men into sex? Why always women version is to be believed? Why should women not be punished and sent to jail for at least an year if she levels false allegations against a men solely for denigrating, damaging and destroying his untarnished reputation in front of the world? Why should she not be made to pay compensation to him for tarnishing his reputation in front of the world? Why can’t the laws be suitably amended in this regard? Why should only women have right to reputation and right not to be defamed and denounced? Why do we ignore that our laws and Constitution treats men and women as alike? Why should men be deprived of the basic fundamental tenet of law that everyone is innocent until proven guilty?          

                           It cannot be lightly dismissed that in a criminal case, where the accused will forfeit his liberty if convicted, the standard of proof required to convict him not just is higher but also needs to be proved “beyond all reasonable doubt”. It is high time and all news channels and media groups should refrain from just glamourising “#MeToo” movement and should instead always convince so called “female victims” to approach the court at the earliest and not after 10 or 20 or 30 or 40 or 50 years and fight the legal battle which would seek evidence for both prosecution and proving innocence instead of just levelling the most damning allegations after many decades which only exposes her to “defamation suits” to get real justice for herself! Also, it must be ensured that the identity of both the women levelling the allegations and the men against whom allegations are levelled are not revealed in public until the case is decided at least in the lower court! Such cases too must be decided at the earliest and not after many years as the reputation of both the women and the men suffers enormously which only robs them of their right to privacy which just recently in KS Puttaswamy case has been declared to be a fundamental right!

                                                 We all have seen just recently how Italian actress Asia Argento who became a leading figure in the #MeToo movement after accusing powerhouse producer Harvey Weinstein of rape, paid hush money to a man who claimed she sexually assaulted him when he was 17! The $380,000 payment was made to Jimmy Bennett who is an actor and rock musician who claimed Argento assaulted him in a California hotel room in 2013, according to the Times, which cited documents sent to the paper by an unidentified party. This was reported in Hindustan Times dated August 21.

                                            I am certainly not against women getting justice who have suffered at the hands of men but I also simultaneously favour the reasoned and logical stand that, “Men too have right not to be defamed and denounced without facing strictest legal scrutiny in accordance with due procedure of law”. Every Indian women must always abide by what Geetanjali Arora who is herself a female has said which I have quoted right at the beginning! Women are beating men in studies and outsmarting them in every field then why should they take things lying down when it comes to sexual offences?

                                           Why not lodge complaint at the first place instead of just indulging in character assassination after many years as part of “#MeToo” campaign and getting defamed yourself also and making a huge public spectacle of yourself? Now it is for women to decide for themselves which course of action they would like to adopt but now they must stop laying the victim card and abide in totality by what Geetanjali has said and never tolerate any sort of any misconduct from any men under any circumstances whatsoever! It is high time and now women must be actually treated at par with men by not always allowing women to play the victim card and encouraging her to always take men head on whenever any men dares to violate her physical or mental integrity in any manner!     

Sanjeev Sirohi, Advocate,   

1984 Anti-Sikh Riots – Delhi HC Upholds Conviction And Punishment

1984 Anti-Sikh Riots – Delhi HC Upholds Conviction And Punishment Of Over  80 Rioters

                                              First and foremost, the latest landmark and laudable judgment delivered by the Delhi High Court in Shambhir & Ors v State in CRLA 152/1996 along with others on 28 November, 2018 upholding the conviction and punishment of over 80 rioters has brought some solace to all those affected people who lost their near and dear ones in the ghastly 1984 anti-Sikh riots which brought disrepute to our country and alienated many Sikhs from the national mainstream! Delhi High Court by this latest, landmark and laudable judgment has sent a loud, clear and convincing message to all that, “Nobody can be above the law and those who commit crime are bound to be punished sooner or later”! There can be no denying it!

                                    As it turned out, Justice RK Gauba of Delhi High Court who delivered this landmark judgment notes right in para 1: “That the criminal justice administration may falter or crumble, or lose its potency, is no longer a distant doomsday scenario. It appears to have arrived and stares at us in the face. The question as to whether the guilt of the appellants for complicity in rioting and mischief by fire was correctly concluded or not has come up for determination thirty-four years after the crimes were committed and twenty-two years after the trial court had rendered its decision. The whole exercise is reduced to the level of academic.”

                                                    Elaborating on the riots and its background, it is then pointed out in para 2 that, “On 31.10.1984, Mrs Indira Gandhi, the then Prime Minister of India was assassinated by her bodyguards. Riots broke out on the same day in the capital city of Delhi and other parts of the country which, in no time, turned communal, they being directed against the Sikh community. Carnage followed for several days in which thousands suffered physical harm or damage to the property. A large number perished. Semblance of law and order returned, albeit after several days, in the wake of the armed forces being called in aid of the civil administration.”

                                         To be sure, while lambasting the utter failure of the police and the civil authorities in failing to rise to the occasion, it is then noted in para 3 that, “The failure of the police, and the civil authorities, in controlling the situation, or meeting the challenge, by enforcing the law has been chronicled not only in the media reports but also found to be a fact in decisions of the courts of law, in various cases brought at almost each level of the judicial hierarchy, as indeed recorded in the reports of numerous Commissions of inquiry or Committees that were set up in the decades that have followed. The circumstances that prevailed during riots are the harsh reality of which judicial notice may be taken.”

                     No doubt, it is rightly conceded in para 4 of this landmark judgment that, “The anti-Sikh riots of 1984 are indeed a dark chapter in the history of independent India which , it is often said, this country must put behind so as to move ahead. But, for those who suffered personal loss in the form of killings of their near and dear ones, or destruction of their homes, there possibly can never be a closure. The theories of politico-criminal nexus, aided and assisted by police or civil service officials loyal to the cause, being behind the mayhem that was wrecked, virtually with impunity or immunity, continue to abound and haunt. There is also a contrarian view that such dark chapters in the history of the land must never get effaced from memory since they confront us, the civil society at large, by showing a mirror, to expose to us the rot that lies within.”

                                    Truth be told, it is also then rightly conceded while outlining its own priorities in para 5 that, “The communal riots of the likes of 1984 have been erupting time and again, as a scourge, in free India, starting with the partition riots of 1947, more often than not, fanned by socio-political leadership. Many such communal riots have preceded, or followed, those of 1984, each leaving behind numerous cases of mass murders, arson, loot, plunder, et al. In the present context, the court is not concerned with what were the causes for failure of administration or of law and order or, to go further, what reforms are required to ensure that such break-down of administrative machinery, or rule of law, does not recur. The court is concerned more with the enforcement of criminal law in the wake of such serious crimes as were committed in the name of protests taking the ugly shape of communal riots.”

                                          Truly speaking, it is para 6 which actually sets the ball rolling by dwelling on the background of the case and pointing out that, “These twenty-three criminal appeals arise out of the decision of a court of Sessions in a case (sessions case 34/95) relating to rioting accompanied by commission of serious offences in the afternoon of 02.11.1984 in Block no. 32 of a locality known as Trilok Puri, within the territorial jurisdiction of police station Kalyan Puri, Delhi, it being subject matter of investigation through first information report (FIR) no. 426/1984 of the said police station. This case is one of the several cases that were registered around that period, the grievances of the victim community, and the civil society at large, consistently being that there was utter failure on the part of the police in not only controlling the situation but also in bringing the perpetrators of the crime to justice. Allegations have been made generally and with reference to various other cases registered during the said period, they also being echoed in the context of the present case, that the police officials entrusted with the responsibility of taking follow-up action under the criminal law, instead of discharging their obligations, turned their gaze the other way or made endeavour to ensure that those guilty could either escape or even if brought to trial, could avoid their guilt being proved.”

                                      Going forward, para 7 then candidly points out that, “Having heard the defence, and the prosecution, in these appeals and having subjected the trial court record to acute scrutiny, this court finds the grievance as to apathy on the part of agencies connected to the criminal law towards such cases to be correct and well founded. In the considered view of this court, it is not only the police that failed in not (promptly) registering the crimes or collecting all possible or requisite evidence (before it was lost forever) but the other agencies including prosecution, and the court, that also failed to rise to the occasion or live up to the task.”   

                                     Bluntly put, para 8 then brings out that, “As would be noticed in the later part of the judgment, the manner in which the case was handled, or lingered, at the stage of committal proceedings before the Magistrate, was designed to ensure the case would not proceed with the promptitude it deserved. The case resulting from the first final report under Section 173 of the Code of Criminal Procedure, 1973 (“the charge-sheet”) which was placed before the court of the Metropolitan Magistrate (on 20.12.1985), followed by several supplementary reports, saw the committal order being passed only on 18.04.1987. The court of Sessions where the case was allocated had doubts as to the permissibility of joint trial of one hundred and seven (107) persons who had been brought before it under the umbrella of one case. It passed certain orders requiring the cases to be split up. The supplementary charge-sheets in the wake of such directions followed, with no-one interested in expedition. Eventually, the case was put to trial by order dated 04.12.1995 framing charges against ninety three (93) accused whose presence had been secured, this being followed by a similar subsequent order respecting one more who was compelled to appear with great difficulty.”

                                  For the sake of brevity, let us now come directly to para 107. It aptly says that, “At the cost of repetition, one may say again that the areas from which the appellants were apprehended were one of the worst affected in the riots. Almost all houses in the vicinity had been subjected to arson. The household articles of such riot-affected homes were found scattered on public roads and in lanes. A large number of motor vehicles were found abandoned on roads they having been set on fire. The properties which were damaged by fire included religious places, shops or hutments. Even while the local police – which included PW-5, PW-7 and PW-8 – assisted by reinforcements (later joined by paramilitary forces) were trying to bring the situation under control, the riotous mob was moving almost with impunity. The evidence has shown unmistakably that curfew and prohibitory orders had already been promulgated. After such prohibitory orders had come into force, no public person was entitled to be outside his home, not the least so as to be a part of rioters unlawful assembly. If a public person was found to be outside his home in such circumstances, onus would be on him to explain or justify the reasons for his presence at such a place.”

                     Needless to say, para 108 then points out that, “As noted above, the evidence has clearly brought home the case for prosecution that the appellants were outside – part of the mobs which were rioting. They having come up with no reason or explanation for such presence at such place at such point of time, their guilt for disobedience of prohibitory order lawfully promulgated by the Commissioner of Police within the mischief of penal provision contained in Section 188 IPC has been proved.”

                          While craving for the exclusive indulgence of esteemed readers, it must be informed here that para 109 then states that, “As concluded above, the presence of the appellants amongst the rioters mob has been proved. They have not come with any explanation for such presence. It cannot be assumed, without such plea being taken, that they were idle spectators. The object of unlawful assembly having come to their knowledge their continued presence renders them party to its common object. The said assembly having indulged in setting houses on fire pursuant to such common object, charge of rioting has also been proved. Using inflammable materials (deadly weapons) to set houses on fire amounted to offence under Section 148 IPC for which charge had been framed. But, for reasons which are not clear the trial Judge has returned conviction only under Section 147 IPC. There being no appeal by the State, this court feels it would not be proper to convert the conviction for one under Section 147 to Section 148 IPC at this stage.”

                        For esteemed readers exclusive indulgence, it must also be informed here that without mincing any words, it is then observed in para 110 that, “With riots of such magnitude being underway, it called for no imagination for a member of such unlawful assembly to know that its object was to commit offences, such offences clearly including damaging the houses by setting them on fire. It is not a case where a person who was member of the unlawful assembly could not imagine as to what offences were “likely” to be committed. The offence of mischief by fire was being indulged in from house to house, from one locality to the other, in clear view of everyone who was present at the scene. Given the brazen manner in which arson was being committed, awareness that mischief by fire would be the probable and natural result of the acts intended to be committed has to be imputed to each members of the unlawful assembly. In these circumstances, knowledge about the object of the unlawful assembly will have to be imputed to everyone including the appellants who were part of the riotous mob.”

                                Simply put, para 111 then drives home the point that, “Since the evidence unmistakably shows that the appellants were members of the unlawful assembly, the common object whereof was to commit offences that included offences of mischief by fire, having regard to the magnitude of the damage that was openly caused to a large number of houses of Sikhs in the concerned area of Trilok Puri, there was no need for the prosecution to prove any overt act on the part of any of them. Non-recovery of the weapon of such offence is of no consequence. As has been explained by the witnesses, the appellants were apprehended after pursuit and it was highly unlikely that they would continue wielding the weapons (inflammable materials) in their hands till being over-powered. Their accountability for offence under Section 436 IPC is brought home by the rule of vicarious criminal liability under Section 149 IPC.”

                                   Of course, it is then observed in para 112 that, “The trial Judge, while framing charge, had taken care to invoke the penal clause of Section 149 IPC with the offence under Section 436 IPC. It does appear that in the final determination, while convicting the appellants also under Section 436 IPC, reference to Section 149 IPC came to be omitted. This appears to be an inadvertent lapse. It cannot, however, detract from the tone and tenor of the judgment of the trial court that the conviction of these appellants for offence under Section 436 IPC has been recorded with the aid and assistance of Section 149 IPC.” Para 113 envisages that, “On the foregoing facts, and in the circumstances, the judgment of the trial court returning finding of guilty convicting the appellants must be upheld. Ordered accordingly.”

                             It would be pertinent to mention here that Justice RK Gauba of Delhi High Court who delivered this landmark judgment then took the strong view that this case merited much more severe punishment than was actually awarded by the trial court but desisted from doing so as there was no appeal with such prayer to enhance the sentence. Justice Gauba pulled back no punches in making a scathing attack on the leniency displayed in awarding punishment and observed in para 114 that, “Though, having regard to the extensive damage that was caused by the appellants to a large number of houses or other properties of Sikh community by fire, the case merited punishment more severe than the one meted out by the trial court, given the fact that there is no appeal seeking enhancement of the punishment, the trial court having taken a lenient view, there is no occasion for this court to modify the order on sentence either way.”

                                    Having said this, para 115 then sums up by saying that, “The appeals are thus dismissed. The bail bonds of the appellants are cancelled. They are directed to forthwith surrender to undergo the punishment awarded against them. The trial court is directed to take all necessary measures, including issuance of requisite processes to ensure due enforcement and execution of the sentences in accordance with law. The Commissioner of Police and officers or agencies under his control shall render all assistance to the trial court in this day.” Para 116 then directs that, “For compliance, copies of the judgment shall be sent to all concerned by the registery.”

                                        It cannot be lost on us that it is then observed in para 117 that, “Before parting, however, this court deems it necessary and proper to make certain further observations on two particular aspects – one concern stemming from reasons to believe that certain part of the facts noted or gathered by the investigating agency in the wake of FIR No. 426/1984 of Police Station Kalyanpuri may have remained uncovered; the second respecting the inadequacy of the criminal law procedure to deal with crimes of such magnitude and the utmost need for reforms in this regard to be ushered in.” Para 120 says that, “In the foregoing facts and circumstances, this Court directs the Commissioner of Police, Delhi to have the material, and the evidence, in above nature, re-examined by an appropriate agency for such further action under the criminal law as may be requisite.” Para 121 further says that, “A copy of this judgment with specific reference to the above direction shall be additionally sent to the Commissioner of Police.”

                                   More crucially, it is then observed in para 122 that, “The case at hand, as observed elsewhere in this judgment, may be treated as a paradigm which ought not to be followed in cases of such nature. The law and order machinery had broken down. The police forces, and the civil administration, did not take timely or effective action to prevent the riotous conditions from spiraling out of hand.  The criminal law process began, but hesitatingly and belatedly. The fact that these cases have continued to linger in the courts at the stage of trial or appeals or revisions till date itself is an indicator of the reality that the response of the law has been tardy, ineffective and highly unsatisfactory.”

                                           Furthermore, it is then lamented in para 123 that, “In the wake of case FIR No. 426/1984, one hundred and seven persons had been apprehended. The local police did not have the capacity to even keep them in proper custody as a large number of arrestees were kept overnight in the verandah or courtyard of the police station. The remand proceedings before the magistrate were conducted with the accused persons being confined in vehicles stationed outside the court complex. Such difficulties during the period of riots may have been for reasons beyond the control of everyone. But, when the charge sheets had been filed, the committal court did not have the capacity, or the wherewithal, to conduct the proceedings. As is reflected by the record of the trial court, the proceedings post committal of the cases were also difficult to handle. The trial Judge was at a loss as to how to make a head count on each date of hearing. Taking of attendance of such large number of accused itself was not only time consuming but also unwieldy.”

                                     More worryingly, it is then observed in para 124 that, “The criminal procedure, as applies generally, mandates that the proceedings take place in the presence of the accused. This fair justice principle of law is abused, more often than not, to cause delay. The truancy is often seen being used as a tool to get the trial process postponed. In cases of such nature as at hand wherein accused persons sent up for trial were in such large number, it is easy to use the device of truancy. On each date of hearing, some or other accused would remain absent leading to deferment. The whole process consequently gets reduced to a mockery. The result obviously is what the pace of progress in the present case has demonstrated.”

                               Now coming to para 125, it is forthright in pointing out that, “On the criminal prosecution initiated through the charge sheets which had been submitted in December 1985, the question of charge could not come up for consideration till December 1995. The trial Judge, when he set about the task of consideration for framing of charge, found, upon the prosecution itself advising him to this effect, that the case as presented ten years earlier suffered from the defect of mis-joinder (of charges and accused). The charges were eventually framed, after splitting up of the cases, in January 1996. Clearly, the investigating agency, and the prosecution agency had no coordination between themselves. The fact that the initial two charge sheets presented in December, 1985 were prepared, also under the advice of the prosecution branch, shows that the quality of the legal assistance availed of by the State was questionable.”

                                           Honestly speaking, para 126 then acknowledges that, “As mentioned elsewhere in this judgment, the spectre of communal riots has been raising its ugly head in various parts of the country at regular intervals and from time to time. The general criminal law is provenly ill-equipped to deal with the challenge of such crimes of mammoth proportion, particularly when they invariably are perceived to be engineered by those holding control over certain power centers.”

                          It is then underscored in para 127 that, “At the cost of repetition, it needs to be noted again that after each event of communal riots, allegations of political influences having worked as the root cause or for protection of those responsible have surfaced. There perhaps can be no two opinions about the fact that a sense of neutrality in the investigative and prosecution process has to be injected. And towards this end, the possibility of entrusting such tasks to authorities other than normal agencies of the State needs to be explored.”

                            It is then brought out in para 128 that, “Quite often, in cases affecting large sections of society through crimes committed by influential persons, the courts – High Courts or Supreme Court – have felt constrained to set up Special Investigating Teams (SITs) which carry out probe under their supervision. Since such courts are eventually called upon to subject the evidence to scrutiny and adjudicate upon the guilt, recourse to this approach may not always be desirable.”

                                       It is of immense significance to note that para 129 then observes that, “The experience also shows that after such events Commissions of Inquiry are generally set up, the purpose whereof is to gather evidence and probe the causes that led to breakdown of law and order. Such Commissions invariably are headed by retired Judges of the Supreme Court or High Courts. But the establishment of such Commissions, and commencing of work by them, takes some time. During the interregnum, however, the crucial evidence comes to be lost or destroyed. The reports of various Commissions of Inquiry also reveal that the victims or witnesses of such riots are generally petrified or silenced by intimidatory tactics and consequently feel disinclined to come forward with their complaints, or testimonies, till some measures are undertaken to afford protection to them.”

                    It would also be material to note that para 130 then stipulates that, “Pursuant to the Protection of Human Rights Act, 1993, Human Rights Commissions stand established and are in position at State and National level. Though the objective of setting up of such Human Rights Commission is a little distinct, it cannot be lost sight of that such Commissions are generally seen swinging into action without much delay in cases of communal riots. They also have the advantage of the investigative apparatus available to them at all times.”

                                 Not stopping here, it is then observed in para 131 that, “One wonders if the initial task of gathering evidence or, to put it conversely, the duty to “preserve” evidence can be entrusted to the Human Rights Commissions, in cases of communal riot situations. Once a Commission of Inquiry is instituted, under the Commission of Inquiry Act, 1952, further investigative process by gathering all evidence for such cases can be taken over by such Commissions of Inquiry. Given the non partisan and statutory status, as indeed the confidence of people at large enjoyed by these institutions, the possibility of vested interests negatively influencing the process of law would stand ruled out.”

                                  In hindsight, it is then brought out in para 132 that, “There have been initiatives taken in the past to bring in special legislation to cover the subject, this including in the form of Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 and lastly, as per the information available, Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 but the same have remained stuck at the stage of drafting. The court hopes and trusts that the legislature will consider enactment of a special law to deal with such crimes effectively at an early date. The court also hopes and trusts that as and when such special legislation is put in position, it would include provisions to arm the investigating and prosecution agencies, as indeed the criminal courts, with requisite powers, laying down special procedure and rules of evidence for fair, timely and effective dispensation of justice.”

                                          To put it succinctly, it is then observed in para 133 that, “Having regard to the experience that has been gained, including by scrutiny of the records of the present case, this court would suggest the following to be considered for inclusion in the reforms in the criminal law response to deal with such cases:-

(i)                         Suitable amendments (with necessary subordinate legislation) to the Commissions of Inquiry Act, 1952 and the Protection of Human Rights Act, 1993 may be considered to entrust the responsibility of taking note of the cognizable offences committed in communal riots and for investigation in accordance with law thereinto may be through SITs specially constituted under their respective control with further responsibility to oversee the prosecution in the wake of such investigation through Special Public Prosecutor(s) (SPP) to be engaged by them.

(ii)                      Though the Commissions referred to above would have their own investigative machinery to carry out the necessary probe in an effective manner, they might need to avail of the assistance of Legal Service Authority (LSA) for reaching out to the victims (or witnesses), and for instilling a sense of trust and confidence, coupled with such witness-protection measures as may be deemed proper for the given situation, and also of the judicial magistracy for mandatory recording of statements of such victims, or witnesses, under Section 164 Cr.P.C. at the earliest inasmuch as provisions for this would make the effort more comprehensive and effective.

(iii)                   The neutral agency of the Commissions entrusted with the added responsibility of taking such case(s) to prosecution would ensure that no charge-sheet is brought to the criminal court for taking of cognizance, or trial, unless it has been properly vetted dispassionately by those well-trained in criminal law such that it is free from any defect, inadvertent or otherwise.

(iv)                   The law on the subject of communal riots cannot be a complete answer to the challenge unless it also establishes special courts with suitable amendments to the general criminal law procedure as indeed the rule of evidence.

(v)                      Given the technological advancements that have been made and the rise of media – print and electronic – as an effective fourth pillar of the democracy, there is a strong case for utilizing as evidence the press reports, supported by photographic material or video footages put in public domain in trials of criminal cases arising out of communal riots. Such material or video coverage are generally seen to be depicting the specific role of various individuals who form part of the riotous assembly as indeed those leading or provoking such mobs. Time has come for availing of the same, may be in corroboration of oral evidence, in criminal trial process. For this, the law must mandatorily require media persons or houses to share the product of their efforts with the investigating agency in all cases of communal riots, it being also their bounden duty thereafter to prove such material at the trial.

(vi)                   As has been highlighted in this judgment, frequent absences from the court hearings on the part of accused persons has been one of the major causes for delay in the judicial process. There is no reason why general law of criminal trial being held in the presence of the accused be permitted to be abused. For purposes of trial, particularly at the stage of recording of evidence, in cases under Prevention of Corruption Act, 1988, there is an exception carved out by Section 22(c) which permits such witnesses as are in attendance to be examined even if the accused is absent subject, of course, to his right to seek recall for cross-examination once he re-appears. Similar rule of procedure in case of trial in communal cases involving large number of accused would have a salutary effect.

                                   To put things in perspective, it is then directed in para 134 that, “A copy of this judgment shall be sent by the registry also to Secretary (Law, Justice and Legislative Affairs), Government of India and to the Secretary, Law Commission of India, for their respective consideration.”

                                        Finally and most importantly, in its concluding para 135, it is then observed by Justice RK Gauba of Delhi High Court that, “There is no contest to the case for prosecution that the crimes alleged here were actually committed. Thirty four long years have passed after the crimes were committed and, yet, the victims await justice and closure. Is this what we call a potent and effective criminal justice system? Is our judicial apparatus at all equipped to deal with the crimes of such magnitude? Do we have lessons to be learnt from this sordid experiment in the name of criminal law process? It is indeed a matter of lament that there has been no meaningful thought spared till date to usher in reforms in the judicial process to effectively deal with the cases of communal riots which are engineered, more often than not, by those who have clout or influence – of various kind. The manner of prosecution of the case at hand would undoubtedly go – down in judicial history of this country as an example of criminal law process that must never be emulated. From this perspective, and in the expectation that those at the helm draw lessons from here, one hopes that this case is never forgotten.” Very rightly said!

                                    It is thus quite ineluctable that both Centre and Supreme Court must work expeditiously in unison to usher in the reforms which Justice RK Gauba of Delhi High Court has brought out so prominently in this landmark case! Justice must not only be done but also seen to be done which is possible only if cases are decided in the shortest span of time and not after many decades as we see most unfortunately in this case also! This is certainly possible if Judges ensure that no adjournments on small pretext are granted and hearings are conducted expeditiously and not after many months and years which is the root cause for cases not being decided on time! Judges must be fully determined now to work accordingly and become a true source of inspiration for all the people in the society!  

Sanjeev Sirohi, Advocate,