Inherent Powers of the HC made explicit in cases on non-compoundable Offence

Dipti is a 3rd year student of JGLS, Sonepat

A recent judgment by the apex court of Indiain the case of Narinder Singh v. State of Punjab has been instrumental in removing the ambiguity in law. A law that gives the High Court (hereinafter referred as HC) inherent powers to quash proceedings on the basis of settlement between parties has emerged from this judgement. The judgment delivered appears to be progressive, as it has listed out the guidelines that should be followed by the HC while using its inherentpowers, thereby bringing about certainty in the law. This judgment is extraordinary for two reasons. Firstly, it explicitly enhances the power of the court to quash proceedings even if the offence falls in the non-compoundable category. Secondly, it enumerates a list of guidelines that explains how the three abstract conditions stated in section 482 of Criminal procedure Code could be met. The three conditions being: to give effect to any order under the Code, to prevent the abuse of the process of any court and to secure the ends of justice.

At the very outset, it is quintessential tounderstand the meaning of the terms ‘compoundable offences’ and ‘non compoundable offences’. ‘Compoundable offences’ are those kinds of offences, which do not require a court’s permission to quash the proceeding if compromise has been reached between the parties. However, ‘non-compoundable offences’ require the permission of the court to allow such a compromise between parties, whichinturn would lead to the acquittal of the accused. The very distinction is made on the ground that offences that are heinous and serious in nature are regarded as offences against the society at large and therefore acquittal in such cases has to be scrutinized before being granted. While the offences, which were not so heinous,are allowed sincethey are regarded as offences against an individual and if the aggrieved individual has agreed to compromise, it would be wise for the court to quash the proceedings.

The highlighting aspect of this case was that a non-compoundable offence was allowed to be quashed under the discretionary powers given to the HC (section 482 of Code of Criminal Procedure, 1973). We should take note that offences, which are considered to be compoundable, are given under section 320 of the Code and clause 9 of the same states that no offence shall be compounded except as provided by this section. In this case it was witnessed that the offence committed by the accused was outside the ambit of section 320. So, then the question arises, should the discretionary powers given to the HC be allowed to quash the proceeding of a non-compoundable offence under section 482? Does it not go against the letter of the law? Does this not infringe section 320 (9) of the Code?

To answer these questions it is essential to examine the guidelines laid down in this case. These guidelines enumerate principles that would direct the HC in using its discretionary powers. The very first guideline explains that there is a distinction between the powers of compounding of offences given to the court under section 320 and quashing the criminal proceedings by the HC in exercise of its inherent jurisdiction conferred upon it under section 482 of the Code. The distinction lies in its application. In case of the former, the court just checks if compounding in permissible under section 320, and if it is, the court is solely guided by the compromise between parties. However, in case of the latter, the court is guided by materials on record and not just the compromise being met, It checks whether the ends of justice would justify the exercise of power.Although the ultimate consequence of the two maybe the same. But the means to reach the end is different and therefore should be appreciated.

The second guiding principle reiterates the section itself giving out the two important objectives of such usage of power by the HC. First, being to secure the ends of justice and second to prevent the abuse of power of any court. The third guiding principles identifies when such powers should not used by the HC. Firstly, when the offence is not private in nature and has serious impact on society and secondly, when the offence involves serious and heinous offence. And lastly, even when offences are alleged to have been committed under special status it should not be quashed by the HC merely on the basis that compromise has been attained between parties.

While listing out the areas under which the HC should refrain from usingits discretionary powers, the forth-guiding principle expounds the core idea of this section. It states that the HC also has to check whether the possibility of conviction is remote or bleak and if the criminal proceeding is allowed to continue great oppression and extreme injustice would be caused to the accused. If the HC feels in consideration of the facts and circumstances of the case, that such would be the case then it should quash the proceeding. So, it can be inferred from this principle that even if the offence is considered to be serious, the court may quash the proceedings if it is of the opinion that grave injustice would be caused by its continuance.. This principle gives of the taste of inherent powers. The power that court would decide according to its own discretion to avoid injustice. In my opinion, this principle super powers all the other principle asit makes it explicit that the discretion lies on the HC. And at the periphery it has coated it with conditions, which the court has to fulfill if a decision has to emerge.

The sixth guiding principle takes note of a very vital factor in such cases. The essentiality of time has been enumerated. It has elaborately explained at what stage such discretion should be used by the HC. There are foursituations given out: – firstly, when settlement is arrived immediately after the alleged commission of the offence and the matter is still under investigation. In such a case, the HC will be liberal in accepting the settlement and quashing the proceeding. The next situation is when the charges are framed, but evidence is still at the infancy stage, the HC should show considerable benevolence only after the prima facie assessment of material circumstances. Thirdly, when prosecution evidence is almost complete, and after the conclusion of the evidence, the matter is at the argument stage, the HC should refrain from exercising such powers. Lastly, when the conviction is already recorded at the trail court and the matter is at the appellate stage before the HC, mere compromise would not be a ground to accept.

These guiding principles try to give certainty to the law relating to the usage of inherent powers. It exhibits a core where the real essence of this section is upheld- the factor of it being discretionary in nature, which is seen in guiding principle no. 4. This core has layers of principles at the outer end. These principles are the guiding factors elaborately explained above. So, if the HC has to use its discretionary powers it has to fulfill the conditions of the layers at the outer end. Therefore, in my opinion this judgment is one-step forward and making law more reasonable to understand.

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[1](2014) 6 SCC 466 [1]Prevention of Corruption Act or Offence committed by public servants while working in that capacity

Decriminalisation of Suicide

Vipin Mittal is a 2nd year student of JGLS, Sonepat

In the year 1860, the British passed the Indian Penal Code with Section 309, which criminalized Attempt to Suicide. Before I argue in favor of decriminalization of suicide, a look at the reasons as to why this provision could have been enacted by the British would be helpful.

With the circumstances of those days in mind, there could be two reasons for this. Firstly, the value of human labor was immense in those days, which made it important for the colonizers to ensure their workers do not give up on their lives because of the working conditions. With the practice of Bonded Labor present in great number, and the Bourgeoisie required their labor, taking away their right on their own life would seem a great way to ensure they die only of natural causes.

Another reason could be the practice of Sati. In this practice, widows voluntarily sacrificed their life after their husbands’ death. This practice was something that was irking the humanitarian bones of the English. In order to curb this practice of voluntarily sacrificing one’s life, the colonizers could have criminalized attempt to suicide.

This provision is something that represents what is wrong with our legal system. To punish a person who is already struggling to live, suffering from some form of mental disorder or emotional trauma or societal problems, and punishing that person can solve none of these problems.

One thing that needs to be noted here is that many of the judgments that uphold the validity of Section 309 of the Indian Penal Code do it only on Constitutional basis and never question the humanitarian aspect of the law. The stand that I am taking has been reiterated number of times in the Court of law. An amendment was introduced in the legislature to omit Section 309, but the Parliament was dissolved before the amendment could be passed and the need to introduce this has not been felt again by the legislature.

Even the Law Commission of India in its 42nd Report suggested that the said provision must be omitted in 1971. This view was again held in the 210th report of the commission where the provision was rendered inhumane and hence had suggested decriminalization of Suicide.

A person attempting to commit suicide is not a threat to the society, neither is he, what the law calls, a legally sane person. An attempt to suicide is a cry for help, which can only be addressed through medical means and not penal means. A person imprisoned for the “crime” of committing does not get reformed or does not get deterred but is made emotionally weaker and mentally even more traumatized because of the brute environment of the prisons.

Let us imagine a situation where a person who is emotionally in a weak state for any imaginable reason like death of a family member, financially weak position, break up with girlfriend etc. In that state of depression, the person decides to take his life because he doesn’t want to live anymore.

What the current law suggests is that such person should either be successful in his attempt to take his own life or that he should be punished in case he survives. This is an erroneous position as this provision in a way ensures that people try harder to take their lives and not do it “half heartedly”.

So in the above example if the person survives, not only will he be in a state of depression but will also be behind bars for his luck of surviving his suicide attempt.

I think it has been long since we have been living with such inhumane laws and its time that more humane ways of dealing with such situations be introduced in law.

“Let them think what they liked, but I didn't mean to drown myself. I meant to swim till I sank — but that's not the same thing.”

-Joseph Conrad

Labour Laws in India: Brief Idea

A 4th year student of W.B.N.U.J.S, Kolkata

Given the large human resource availability within the country, the government has set up a comprehensive regulation system in order to prevent its exploitation. These laws essentially govern terms of employment and conditions of work of laborers. Therefore, if you are a business startup, company or an industry employing a certain number of employees as laid down by each law, you would be required to provide certain benefits or adhere to the guidelines prescribed by the following Acts which are enumerated below:

            Industrial Disputes Act, 1947– This Act aids in determining whether or not one’s company would be deemed as an industry and if the workers would qualify as ‘employees’ for the purpose of benefits such as collective bargaining, protecting rights of both employer and employees during strikes and lockouts, and determining modes of dispute settlement between both contracting parties. For instance, Section 18 of the Act envisages settlement arrived in the course of conciliation proceeding before the authority, wherein such settlements not only bind the member of the signatory union but also non-members as well as all the present and future employees of the management orthe settlementis not arrivedat in the course of conciliation proceedings but signed independently by the parties to the settlement binds only such members who are signatory or party to the settlement. Further Section 19 of the Act prescribes the period of operation which includes such a settlement and envisage the continuation of the validity of such a settlement unless the same is not replaced by another set of settlement, while Section 29 prescribes the penalty for the breach of such a settlement.Workers have the right to strike, even without notice unless it involves a public utility service; employers have the right to declare lockout, subject to the same conditions as a strike. The parties may sort out their differences either bilaterally, or through a Conciliation Officer who can facilitate but not compel a settlement, which is legally binding on the parties, even when a strike or a lockout is in progress. But if these methods do not resolve a dispute, the government may refer the dispute to compulsory adjudication and ban the strike or lockout. However in recent times the Higher Courts have deprecated the tendency to go on strike quite frequently. Furthermore, the Supreme Court of India has also held that government employees have no fundamental right to go on strike.

 

            Payment of Wages Act, 1936– This Act applies to all factories, industrial establishments, tramway services, motor transport services and such other establishments. Wherein wages means all remuneration expressed in terms of monetary value and includes that which is paid through award, settlement, overtime wages, wages for holidays or that paid during termination. This would however exclude bonus, payment to schemes such as PF or ESI, Gratuity, House Accommodation, Travelling allowance, etc as per Section 2(vi) of theAct. It is pertinent to note that if the number of employees is less than 1000 in any organization, then wages shall be paid before the seventh day of the following month, if employees are more than 1000 then before the tenth day of the following month. In addition, the maximum deduction can be fifty percent of monthly wages; however a maximum of 75 percent is permissible if deduction is partly made for payment to a cooperative society. With respect to fines, it cannot exceed over three percent in the same wage period and should be recovered within ninety days from the date it was imposed. The Act requires the maintenance of certain registers such as that for fines (Form II), deductions (Form III), advance (Form IX), wages paid (Form IV and V), muster roll cum register of wages (Form VI) and annual returns such as for transport services.

 

            Workmen’s Compensation Act, 1923 –This Act is specific to provide for protection in case of accident or injury caused  to employees during or arising out of the course of their employment. The benefits accrue to every employee irrespective of their category or capacity or form of hire, thereby including contract laborers as well. The compensation depends upon the form of injury caused that is total, partial or an occupational disease. The amount of compensation payable has been laid down under Section 4 of the Act wherein in case of death the amount is either 40 % of the wages multiplied by the relevant factor or Rs 20,000, whichever is more, total disablement out of injury is 50% of the wages multiplied by the relevant factor or Rs 24,000 whichever is more. This relevant factor is as per the schedule provided within the Act specifying the period of work to be considered for the above calculation. In cases of partial disablement, reference must be made to Part II of Schedule I which provides the percentage of compensation which would have been payable in case of permanent total disablement but as a percentage of the loss of earning capacity caused by the injury. In case such injury is not mentioned then the percentage of compensation should be proportionate to the loss of earning capacity. When an injury does occur it must be reported as per Rule 11 Form EE ,within seven days of the injury to the Commissioner (this however is not necessary if the Employees State Insurance Act, 1948 is applicable)

 

            Employees State Insurance Act, 1948 – This Act has been incorporated as a form of social security insurance which is applicable to factories employing ten or more persons irrespective of whether power is used in the process of manufacturing or not. In addition it also includes theatres, motor transport undertakings and newspaper establishments employing twenty or more persons and private medical and educational institutions employing twenty or more persons in certain states. To be included under this Act the wage limit must be within Rs 15,000 per month. The contribution is made by the employer on behalf of the employee on or before the 21st day of the following month. This Act, similar to the Workmen’s Compensation Act provides benefits in case of injury, accident, maternity, sickness, etc.

 

 

            Employees Provident Fund Act – Every factory or establishment employing twenty or more persons from the date of its setup is covered under this Act including theatres that employ five or more persons. The Act essentially requires the employer to place a certain contribution towards a common fund wherein contribution is from both the employer and employee. The benefits that accrue ranges from retirement, medical care, housing, family obligations, education, financing insurance policy, etc. An employer must keep in mind Forms 5A, 9, 11 and 2 that provide for registration and nomination in case of a withdrawal to be made by an employee. While employees mustbe  provided for Forms 19, 1 10 C, 13, 31, 20, 10 D, 5 (IF), 8 which would facilitate withdrawal, change of nominees or other formalities to register for this fund.

 

            Factories Act, 1948 –  In cases where a premises employees ten or more persons with the aid of power or twenty or more workers without the aid of power on any day preceding twelve months wherein a manufacturing process is being carried on, with the exclusion of mines as per the Mines Act, 1952 would fall under the purview of this Act. The employer has to undertake the responsibility  to keep the factory clean at all times (Section 11), arrange for disposal of wastes and effluents (Section 12), maintain a reasonable temperature for comfort of employees (Section 13), control dust and fumes as per permissible limits (section 14), artificial humidification should be at a prescribed standard level (Section 15), overcrowding should be avoided (Section 16), adequate lighting, drinking, water, latrines, urinals and spittoons should be provided (Section 17 to 19) and proper ventilation for air and light  to be maintained within the factory. He must also undertake certain safety measures for employees such as: ensuring all machinery are fenced or kept in a manner that would not endanger a workers life, hoists and lifts tests periodically for quality maintenance, floors, stairs and means of access should be of a sound construction, all safety appliances for eyes against  dust, gas and fumes provided, additional safety measures for hazardous substances, adequate firefighting equipment and a safety officer should be appointed if number of workers in the  factory are 1000 or more.  Further a certain standard of working hours should be maintained wherein it may not exceed 48 hours in a week with a maximum of 9 hours in a day and Sundays being a compulsory holiday. A minimum of half an hour of rest should be provided after 5 hours of work. He must also be provided with weekly holidays and notice of period of work must be provided along with other requirements as laid down within Sections 51 to 61. Reference may be made to the rules under this act for specific guidelines in cases of annual leave, notice, overtime and employment of young individuals which however prohibits employment of a person below 14 years of age.

 

            Maternity Benefit Act, 1961 – This is applicable to every establishment being a factory, mine or plantation in which ten or more persons are employed on any day of the preceding twelve months, wherein every pregnant woman is eligible to a leave of 80 days before the expected date of delivery, however if her pay is below 15,000 she may be offered a similar benefit under the ESI Act. An important facet being  that she is provided pay for the period of leave and an additional leave of one month is provided in case of illness and includes  six weeks for miscarriage and two weeks leave in case of a tubectomy operation.

 

            Gratuity Act, 1972- This Act is a social security measure provided by establishments with twenty or more persons employed to avail of a retirement benefit if he has served at least five years or provided continuous service of 4 years and 240 days. It is payable at a rate of fifteen days wages for every year completed and in case of seasonal establishments at the rate of seven days wages for each season. However, the benefit is provided to an employee whose salary is below Rs 15,000, but if there exists even a single employee who meets this salary threshold, then the employer is bound to provide for gratuity to the stated employee irrespective of the other employees drawing a higher salary.

 

            Payment of Bonus Act, 1965– ThisAct extends benefits to any factory employing ten or more persons wherein any processing is carried out with the aid of power and also other establishments employing twenty or more persons, thereby allowing the employee who draws wages uptoRs 10,000 to be eligible for a bonus with minimum 30 days worked performed by the employee during the accounting period (Section 8).

 

 

            Apprenticeship Act, 1961 – This Act applies to all industries as notified by the central government that places a statutory obligation on the employer to recognize certain minimum rights of an apprentice. In order to be qualified as an apprentice, a candidate must be not less than fourteen years of age and has to satisfy the laid down standard of education and physical fitness. Further he or she must be under such employer for a period of six months to four years and who works 42 to 48 hours a week but not between 10 pm to 6 am unless approved by what the Act deems as the ‘apprenticeship advisor’. The employer on the other hand must provide casual leave of 12 days, medical leave of 15 days and extraordinary leave of 10 days in a year and provide a minimum rate of stipend as per the rules of this Act.

The Obnoxious Article 370 of The Indian Constitution: Abrogation Is The Way Forward

Is a 3rd year student at W.B.N.U.J.S, Kolkata

“Samvidhan ki dhara 370 ghiste ghiste ghis jaayegi”[1] (Article 370 of the Indian Constitution will gradually erode to oblivion) This statement was made by Mr. Jawaharlal Nehru in the Lok Sabha in 1963 on the assumption that Article 370 was temporarily inserted into the Constitution of India so as to facilitate the integration of Jammu and Kashmir with the Republic of India. Further by incorporating this Article in Part XXI of the Indian Constitution, which is titled ‘Temporary, Transitional and Special Provisions’, it is quite clear that the constitutional makers also wanted that the Article should be abrogated once the aim of integrating J&K with the Republic of India is fulfilled. But today it seems as if this Article has become the eternal reality of the Indian Constitution.

It would be appropriate to start with the history of the genesis of Article 370. After getting independence from the British rule all the 562 princely states in India were returned their rights and independence. Surprisingly both the Cabinet Mission (12th May, 1946) and the British government were clueless about the future of these states and gave no suggestion as to the future course of action. It was Mr. V.P. Menon (the constitutional advisor of the three last Viceroys of India during the British rule) who came up with the suggestion that all the princely states should surrender three basic functions of their state to the Indian government (i.e. defence, communication, and external relations). This led to the inception of the “Instrument of Accession”. This was a form of agreement through which all the princely states were asked to accede to either of the two dominions (i.e. India or Pakistan) and surrender their rights related to defence, communication and external relations. Maharaja Hari Singh of Kashmir faced a dilemma that whether he should accede to India or to Pakistan, as both were geographically adjacent to it. He finally chose India over Pakistan on an assurance by the Government of India that there would be a plebiscite (direct vote of all the members of an electorate on an important public issue) in the near future to finalize the accession.

So, if Kashmir is just another princely state in India, which chose to be the part of the Indian dominion, why is it that a special Article is incorporated in the Constitution, which provides it an unreasonable amount of autonomy? The answer is that on getting independence each princely state had its own Constitution but gradually all the states except J&K accepted the Indian Constitution over its own Constitution. J&K decided to act differently and thus adhered to its old Constitution Act, 1939.[2]This posed a major problem for the Government of India as now it was impossible for it to integrate all the states under a single Constitution. But the government could do nothing as the situation of Kashmir was very delicate and thus they passed a Bill in the Parliament which gave J&K special status in the Indian Constitution. This led to the birth of Article 370.

Now let us discuss some major problems with Article 370. There is a major confusion with regard to the status of Article 370. Some consider it temporary while some others consider it permanent. This problem was caused due to the addition of word “Special Provisions” to the title of Part XXI of the Constitution, as this misled people into believing that Part XXI is a permanent part of the Constitution because it is titled as “Special”. Former Chief Justice of India Mr. Adarsh Sein Anand was one such person who mistook Article 370 to be permanent.[3] It is stated here that the words “Special Provisions” were inserted only to show that Part XXI confers special status to states such as J&K, Sikkim, Assam, Nagaland etc. and such provisions are special as no other state enjoys the benefit conferred by Part XXI. This does not mean that these provisions are permanent as during the inception of the Constitution they were clearly titled as “Temporary”. This assertion is also supported by statements made by Gopal Swami Ayyangar and Jawaharlal Nehru in the constituent assembly during the framing of the Constitution.[4]

Article 370 begins with a non-obstante clause: ‘Notwithstanding anything in this Constitution’ before the main text, which indicates that all the powers given to the state under this Article do not depend on any Constitutional provision. This expression is rarely used in the Constitution and thus in a way gives autocratic powers to this Article.

When it comes to analyzing the Clauses 1(b)(i) and 1(b)(ii) of Article 370, it is clear that they prevent any law of the Parliament from directly applying to the state of J&K. Application of such laws are only possible either through consultation or through concurrence with the state government. Clause 1(b)(i) says that any law of the parliament related to defence, communication and external affairs can only be applied after “consultation” with J&K government. Clause 1(b)(ii) says that laws on subject not related to defence, communication and external affairs can only be applied after concurrence with the state.

Firstly, Clause 1(b)(i) goes against the basic “Instrument of Accession” which J&K accepted. By this what is meant is that ideally there should not be any need for consultation with the J&K government in applying laws related to the above mentioned subjects since the right to make laws on these subjects was already surrendered by the J&K government under the Instrument of Accession.

Further, the J&K government has interpreted the term “consultation” and “concurrence” to mean the same. This means that if consultation with J&K state government, with regard to a law, fails the law will not apply to the state![5] Despite the fact that this assertion of the State government is clearly fallacious, successive governments at the Centre have done nothing to change the status quo.

Moreover, Clause 1(d) of the Article gives the President power to issue orders exempting certain provisions of the Constitution from applying to J&K. All these orders are compiled together to create ‘Constitution (Application to Jammu and Kashmir) Amendment Order’. The most infamous among these orders was the one issued on 14thMay, 1954. It gave the following powers to the state of J&K:

         i.            Residuary powers vested in J&K rather than the Centre, a departure from the norm under the Indian Constitution.

       ii.            State legislature given the power to give special rights to its citizens.

      iii.            The right to have its own flag.

     iv.            General emergency cannot be proclaimed in the state by the Centre in case of internal disturbance.

Among all these powers the second power mentioned above is the most devious as the state has atrociously used it to discriminate between the permanent residents of J&K and other Indian citizens living there. Using this power the state legislature has inserted Article 35A in the state Constitution which discriminates against those who are not permanent residents in matters related to employment, buying immovable property and election. Persons who are not permanent residents cannot vote in the elections to the state legislature. This has created a lamentable condition as some citizens of India living in J&K can vote in Lok Sabha elections but not in state assembly elections! Further Article 35A even gives the state the power to decide the definition of “permanent resident” which it can use to give as narrow a definition as it wants. All these provisions are against the basic structure of the Indian Constitution guaranteeing equal rights to citizens under Article 14 of the Constitution.[6]

But the most startling clause in Article 370 is clause (3) which says that the President, through a public notification, can declare that this Article shall cease to operate and such a public notice shall be valid only if prior to the notification the Constituent Assembly of J&K recommends the same. The inconsistency in this is that the Constituent Assembly of J&K ceased to operate on 15th March 1957 and thus no such recommendation can be given. This means that Article 370 has eternal existence and thus it cannot be abrogated. The same was confirmed by the Supreme Court in the case Sampat Prakash v. State of J&K.[7]

But such an explanation cannot be accepted because of the fact that the primary intention of the legislature while incorporating this Article was to make it temporary and not permanent and thus the first step to be taken is to replace the term Constituent Assembly and insert State Legislature in its place. This is the only viable change which can give some meaning to this moribund clause.

Further, it is important here to know that the word “secular” used in the Preamble to our Constitution is omitted in the constitution applicable to J&K. This is shocking because the Preamble is a part of the basic structure of the Constitution and its non-applicability in J&K possibly makes it a theocratic state.

Further, J&K is the most pampered state in India. It receives 14 times more financial assistance than Bihar and is receiving the highest amount of financial aid as compared to any other state. Despite such heavy expenditure on J&K there is widespread poverty, malnutrition and unemployment in the state. The centre does not have the right to audit or check account registers of the state. Further no directions given by the Reserve Bank of India are applicable on banks in J&K as they are completely governed by J&K bank. All these practices give an open way for corrupt officers and politicians to earn easy money. Thus it can be easily understood as to why political parties in J&K are always unwilling to even debate this matter. It is highly deplorable that even politicians in J&K are not even ready to sort out the matter democratically. Omar Abdullah’s recent comment when Jitendra Singh asked for a debate on abrogation of Article 370 was: “We the people of J&K would like to categorically tell BJP that it is not possible to withdraw Article 370 and any attempt by anyone will be on our dead bodies”.[8]

This speaks volumes about the failure of the Indian government’s policy of “carrots” used to integrate J&K with India. This is the time when “sticks” ought to be used to abrogate this obnoxious Article from the Indian Constitution.

Possibly the best method is to amend Article 370 (using the powers given by Article 368) and remove the necessity that recommendation from J&K Constituent Assembly is essential to revoke this Article since the Constituent Assembly is not in existence. But even then, state concurrence will be required to revoke it and this concurrence can be obtained through the power of political and financial pressure on the state. This is the most viable way forward.

 [1] Statement said by Mr. Jawarharlal Nehru in Constituent Assembly, (1947-1948)

[2]Arvind Lavakare, The Truth about Article 370, Pg. 13.

[3]Adarsh Sein Anand, The Development of the Constitution of Jammu and Kashmir, 1980.

[4]Supra note 2, Pg. 23

[5]Supra note 2, Pg. 28

[6]Id., Pg. 59.

[7] AIR 1970, SC 1118

[8] National Tehlka Daily, Any Attempt to Revoke Article 370 Will Be Over Our Dead Bodies: Omar http://www.tehelka.com/any-attempt-to-revoke-article-370-will-be-over-our-dead-bodies-omar

Right to freedom of Press (Article 19) v. Right to Privacy (Article 21)

An under-grad student of ILS, Pune

Freedom of speech and expression is one of the important pillars of democracy. Free expression is indispensable to the unadulterated exchange of thoughts and ideas needed to regulate the democratic machinery in India. These free thoughts lead to ideas that formulate public policy. There is need for free expression so as to build political stability and check abuse of power by public officials.

Freedom of press can be said to be a subset of freedom of speech and expression. In the case of Romesh Thappar v. State of Madras , it was observed by Justice Shastri that, “freedom of speech and the press lay at the foundation of all democratic organizations, for, without free political discussion no public education, so essential for the proper functioning of the processes of the popular government is possible.”

In the case of Union of India v. Motion Picture Association , freedom of speech was advocated profoundly. The said judgment upheld free speech as a foundation of democratic society. It is the only kind of freedom, which makes it possible for the people to formulate their own opinion on a proper basis in order to exercise their social, economic and political rights in their free society in an informed manner. Democracy cannot prosper unless people go out and express their views.

Freedom of speech and expression also means freedom to propagate ideas by way of circulation of press. Liberty of circulation is as important as publication by the print media or press. Without circulation, the publication would be worthless.

Nothing in this world is absolute; hence freedom of speech and expression is also subjected to certain restrictions. No person has the right to speak or express any views towards any person or organization if it is not true. This would lead to defamation, which is punishable under both Indian Penal Code, 1860 as well as the law of torts. But in case where a person in good faith believes that certain facts are true about another person or organization then it would not be considered as an offence. Sometimes, when the press meddles in certain court proceedings which hamper the fair process of trial and delivering of justice then the press can also be charged for contempt of court under Contempt of Court Act, 1971. The press should not try to create an opinion among the people as well as the judges towards a certain case, where the outcome may be prejudicial to the interest of the accused. It can be seen that pre-trial publications have not been given importance in the existing laws dealing with contempt.

The Law Commission of India in its 200th Report condemned it and said even pre-trial reports should be brought under the purview of contempt laws. They suggested that arrest should be taken as the starting point of pendency of criminal proceedings and not charge sheet or challan. The Law Commission’s Report can be quoted as under:

“a publication made in respect of a person who is arrested but in respect of whom a charge sheet or challan has not yet been filed in a Court, in our view, prejudices or may be assumed by the public to have prejudiced the Judge, and in that case a procedure, such as the one permitted by Section 3(2) read with Explanation of the Contempt of Courts Act,1971, does not prescribe a procedure which is fair, just and equitable, and is arbitrary and will offend Article 14 of the Constitution of India.”

In the case A.K Gopalan v. Noordeen , the Supreme Court held that a publication made after “arrest” of a person could be considered as contempt if it was prejudicial to the suspect or accused. According to the Law Commission this is the correct approach and the existing law is flawed.

It is to be remembered that the press has no right to intrude into the private matters of an individual unless it is a matter of public interest and moreover not by a mere whim. The movement towards the recognition of the “Right to Privacy” in India started with Kharak Singh v. State of Uttar Pradesh and Others , wherein the apex court observed that it is true that our Constitution does not expressly declare the “Right to Privacy” as a fundamental right, but the said right is an essential ingredient of personal liberty. After an elaborate appraisal of this right in Gobind v. State of Madhya Pradesh and Another , it has been fully incorporated under the umbrella of right to life and personal liberty by the humanistic expansion of the Article 21 of the Constitution.

The observations of the Supreme Court in R. Rajagopal and Another v. State of Tamil Nadu and Others are a true reminiscence of the limits of freedom of press with respect to the right to privacy. "A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. No one can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.”

Article 21 of the Indian Constitution lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. In Maneka Gandhi v. Union of India , the court necessitated that to deprive a person of his life and liberty; such procedure must not only be established by law but must also be fair, just and reasonable. Thus right to a fair trial emanates from Article 21 which gives to a citizen the fundamental right to protection of life and personal liberty where there should not be any bias made due to the prior one sided or vague news propagated by the press and media . For a court trial to be just and fair it has to be free from bias and the accused has to be given a fair opportunity to prove his innocence.

Like every other right, these two rights also have restrictions. The situation needs to be balanced in these kinds of cases and the ultimate decision in the end lies in the hands of the Honourable Judge or the bench who decide ultimately, which right should be given precedence depending upon the circumstances of the particular case.

 

Picture Credits: http://freespeechdebate.com/en/discuss/ten-arguments-for-and-against-no-platforming/

Analysing the Concept Of Universal Jurisdiction, Its Problems And Prospects

  By Shruthee Srinivasan, 4th Year, WBNUJS, Kolkata          

Universal jurisdiction is essentially the mechanism under which the courts of any state may exercise jurisdiction without regard to the territory where the crime has occurred or the nationality of the perpetrators or victims. If governments of different nations collude together to prosecute the criminals, the result would be a host of conflicting laws suggesting different solutions, thus adding to the confusion. Through the idea of Universal Jurisdiction, by vesting jurisdiction in all states, this confusion was somewhat removed.

However, the problem comes in with the question of impartiality of the prosecuting country towards its own or certain nationals. There is absolutely no way to establish that the trial will be conducted in accordance with due process of law and that the prosecutions will be unbiased and impartial. Moreover, most of the crimes committed on an international level are usually politically motivated by one of the more powerful countries that hold a veto power in the United Nations (UN). This is the reason why most countries refrain from using Universal Jurisdiction in crimes committed in their territory.

The significant question, which this essay attempts to answer, is whether the potential benefits surrounding Universal Jurisdiction are worth the risks.

 

Understanding Universal Jurisdiction: History and Development

To understand the working of Universal Jurisdiction, its problems and prospects, it is important to know how the universal application of rights developed over the years.

Traditionally, the law dealing with piracy was designed in such a way as to prevent universal jurisdiction by including only private acts within its definition. Thus, the exemption of official acts of states automatically immunises piracy from coming under Universal Jurisdiction.[1] World War II provided a major thrust to the development of the Universal Jurisdiction concept. In the post war period, various trials were set up for prosecuting the perpetrators of war crimes and crimes against humanity. Some of them included controversial jurisdictional bases and inadvertently contributed to the development of Universal Jurisdiction (UJ) in this period.[2]

Territoriality and nationality are the two heads of jurisdiction that are unquestionably available to states with respect to all offences.[3] With respect to extraterritorial jurisdiction, passive personality – where the nationality of the victim determines the jurisdiction ,– is gradually gaining precedence.[4] Protective Principle allows a state to assert criminal jurisdiction over offences committed abroad by aliens where the offence is deemed to constitute a threat to some fundamental national interest.[5] The numerous instances of courts trying offences committed in allied countries or offences committed against nationals of those allied countries, show the gradual acceptance of the principle of Universal Jurisdiction, and trace its growth and development among the different legal systems of the world.[6]

The Nuremberg trials offer the best-known example among the post-war trials for a controversial jurisdictional issue. The allied powers jointly established the Nuremberg Tribunal and assumed joint authority over Germany.[7] The Berlin Declaration of June 1945 makes it very clear that USA, USSR, UK and French Republic had jointly assumed supreme authority over all powers possessed by the German Government.[8] This was one of the first instances of application of Universal Jurisdiction across state boundaries, though some scholars dispute it.[9]

The Eichmann Case before the Israeli Supreme Court[10] discussed the four schools of thought in this area:

  • One, the power to try and punish a person is universally acknowledged only for the crime of piracy;
  • Two, the extension of universality principle to extra-territorial offences is secondary to the territoriality and nationality principle being applicable;
  • Three, the principle of Universal jurisdiction is applicable to all acts that are offences under the laws of nations (delicta juris gentium); and
  • Four, it is a principle of natural justice that states assume jurisdiction over crimes of a heinous character.

The court ultimately applied Universal Jurisdiction to prosecute Eichmann, thus paving the way for applicability of Universal Jurisdiction over crimes against humanity and other similar heinous crimes. The proponents of Universal Jurisdiction and judges in this case never addressed the flaw in the analogy in applying UJ over piracy and extending it to war crimes and crimes against humanity.

 

Problems and Prospects of Universal Jurisdiction

With the advent of 1970s-1980s, new treaties on Universal Jurisdiction covered crimes such as hijack, crime against safety of maritime navigation, hostage-taking, attacks on internationally protected persons, terrorist bombing and torture.[11] These treaties came to be recognised as a new feature of customary international law and Universal Jurisdiction of crimes was accorded a legal basis. However, a decade later in 1998 when the International Criminal Court (ICC)was set up, it rejected the scheme of universal jurisdiction over territoriality and nationality jurisdiction. This led to the obvious conflict of laws between the international customary law and the treaties jurisdictional scheme.

Parties to ICC statute argued that as per the customary international law, every state had Universal Jurisdiction over genocide, war crimes, crimes against humanity and the ICC jurisdiction was flawed. At the same time, the non-party states led by United States of America, argued that this attempt to bind the non-party nationals is unlawful and against the principles envisaged by ICC statute.[12] One of the many problems associated with Universal jurisdiction of crimes is that there is no common consensus among the states on what is a crime under international law . It is an international body that decides the gravity and heinous nature of the crimes.[13] The underlying assumption that all courts will be law abiding and provide justice is too optimistic and ideal, and ignores the due process problems that may surface.

Lack of judicial independence represents an additional problem in implementing the due process, particularly in politically charged trials. Universal jurisdiction also contributes to interstate problems where large-scale conflicts in the nature of crimes against humanity, genocide or war crimes, lead the courts of one state to question the policies and officials of the other. One state may exercise Universal Jurisdiction as a means of gaining advantage over states it is in conflict with by prosecuting other state nationals.[14] Additionally, Universal Jurisdiction has not been particularly effective in actually moving states to act. The courts in a state are under no obligation to follow the dictates of the courts of another state. The rationale behind allowing Universal Jurisdiction of crimes is that certain crimes are so heinous in nature like genocide, war crimes and such crimes against humanity, that they are considered to have a considerably negative impact on all states. The conditions of territory and nationality fade away in the brutality or the atrocity of such crimes. However, as already seen, there are many drawbacks associated with applicability of Universal Jurisdiction.

 

Conclusion

Universal Jurisdiction may function well at times, but it is impractical and difficult to implement in all situations.[15] In most of the high profile cases where Universal Jurisdiction could have actually resolve the issue, the states did not agree to it. In most of the high profile cases where Universal Jurisdiction could actually resolve the issue, the states did not agree to apply it. Thus, a lot depends on the political scenario and the undercurrents flowing within the states and international organisations. Hence it can be concluded that enforcing Universal Jurisdiction upon states is not as easy as it seems to be ***

 

 


[1] Universal Jurisdiction in a Divided World: Conference Remarks by Madeline H. Morris, Available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1846&context=faculty_scholarship (Last visited on 25th February, 2013)

[2] Ibid. Page 5

[3] Universal Jurisdiction, Clarifying the Basic Concept by Roger O’Keefe Journal of International Criminal Justice 2 (2004), 735-760, Available at http://documents.law.yale.edu/sites/default/files/O'Keefe%20-%20Universal%20Jurisdiction%20-%202004.pdf (Last visited on 21st February, 2013)

[4] The dissenting judges in the Lotus case [S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7)] disputed the position of passive personality principle but with the Arrest Warrant Case, Judge Higgins, Kooijmans and Burgenthal held that ‘passive personality jurisdiction, for so long regarded as controversial, is now reflected..in the legislation of carious countries…and today meets relatively little opposition, as least so far as particular category of offence is concerned.’

[5] Supra n. 3, See also, Lotus case, diss op Loder at 35-3; Arrest Warrant sep. op. Guillaume and Rezak at §4, In the past, at least this principle has been less a general rule than the basis on which a few specific exercises of extraterritorial jurisdiction over non-nationals have been tolerated by states.

[6] United National Law reports on Trial of War Criminals, Available at http://www.loc.gov/rr/frd/Military_Law/pdf/Law-Reports_Vol-3.pdf

[7] Supra n. 1, page 6

[8] Ibid.

[9] Id. Page 8

[10] Attorney General of Israel v. Eichmann, 36 I.L.R. 227 (Isr. Sup. Ct. 1962)

[11] Supra n. 1, Page 12

[12] United States Hostility to the International Criminal Court: It’s all about the Security Council, William A Schabaas, EJIL (2004). Vol. 15, No. 4, 701-720, Available at http://ejil.oxfordjournals.org/content/15/4/701.full.pdf (Last Visited on 25th February, 2013)

[13] It might be the permanent members of the UN Security Council or the NATO or any other such body. For example, the Pinochet government in Chile in 1998 refused to accept charges of genocide, saying that the “group” alleged to have victimized by Pinochet was not a “national, ethnical, racial or religious group” and hence charges of genocide cannot be framed by the other states using universal jurisdiction principle. The genocide charges were consequently retained and the international community could do nothing.

[14] Supra n. 1, page 21

[15] Supra n. 1, page 23