The Kerala High Court while refusing bail to two army personnel held that when the accused
is an officer of the State, “leniency is not the sanction of law, instead, rigidity is the rule of
law”.
A single bench of Justice A. Badharudeen was hearing an anticipatory bail application where
initially the offences registered against the petitioners were bailable, but subsequently, the nonbailable offence of Section 307 (Attempt to Murder) of the Indian Penal Code, was added.
The petitioners requested that since two of the accused persons were army personnel, the court
must take a lenient view. However, disagreeing with the said contention, the court observed
that: “leniency is not the sanction of law, instead, rigidity is the rule of law."
The counsel for the petitioner submitted that at the time of registering the FIR, only bailable
offences were alleged and hence the accused persons were released on bail. Since, later on the
offence under Section 307 of IPC was alleged, the petitioners now have the right to approach
the court under Section 438 of CrPC for anticipatory bail, the petitioners argued.
However, the Public Prosecutor opposed bail on the ground that Section 307 was later added
based on witness statements and medical records of the hospital that showed that the victim
had sustained serious injuries. Hence the police have the right to arrest, interrogate and recover
weapons from the petitioners as the newly incorporated alleged offence is non-bailable.
The court observed that going by the medical records and the statements of the doctor a prima
facie case for Section 307 has been made out. Denying anticipatory bail to the petitioners, the
court remarked that the “arrest, custodial interrogation and recovery of the weapons at the
instance of the petitioner are absolutely necessary to achieve effective and fair investigation
and eventful prosecution”. The court, however, made a specific note of the fact that the
petitioners were free to approach the relevant jurisdictional court for bail as per the ratio in
Pradeep Ram’s case.
1. One night coming back from office
https://indianexpress.com/article/explained/explained-law/assam-crackdown-on-childmarriage-what-does-the-law-say-8430003/
The Delhi High Court has dismissed an application by the owner of the website, SciHub, Alexandra Elbakyan, for the dismissal of a lawsuit filed by publishing houses, Elsevier,
Wiley and American Chemical Society over claims of copyright infringement and online
piracy.
Elbakyan had filed the application under under Order VII, Rule 11 of the Code of Civil
Procedure (CPC) on the ground that the plaint did not disclose any cause of action. As such,
Elbakyan contended that the suit was barred by law.
Justice Sanjeev Narula dismissed the application after noting that Elbakyan had, in a written
statement filed earlier, “categorically admitted that Plaintiffs are owners of copyright in subject
works.”
The Court also observed that Elbakyan had previously moved another application before the
High Court to withdraw the said admission, which was dismissed by the Court on November
3, 2022.
As such, the Court opined that the plaintiffs had discharged the initial burden under Section
55(2) (dealing with presumed ownership in cases of copyright infringement) of the Copyright
Act to claim ownership towards the work.
The Court further observed that a lawsuit could be rejected under Order VII, Rule 11 only if it
did not disclose a cause of action. However, in the instant case, since a cause of action was
made out, the said lawsuit could not be dismissed, the Court held.
Therefore, it rejected Elbakyan’s application.
Sci-Hub is a library website that provides free access to research papers and books. The
publishing houses before the Delhi High Court had filed a copyright infringement lawsuit
against Sci-Hub, and another similar website, Lib-Gen alleging that these websites were
indulging in online piracy.
According to the publishing houses, Sci-Hub had communicated and provided illegal access of
the publishing houses’ literary works, in the form of medical journals, to the public for use and
download. The website, Lib-Gen or Library Genesis was also stated to have provided access
of the said works in scientific and medical fields as well as non-scientific works by
unauthorized means.
Sci-Hub’s owner, Elbakyan had grounded her application to dismiss this lawsuit on the claim
that there was no valid copyright assignment agreement between the plaintiffs and the authors
of works in respect of which copyright infringement was claimed.
In this regard, Elbakyan highlighted that a valid copyright assignment agreement should spell
out the royalty to be paid by the assignees to the author of the works in exchange for the
“exclusive right to publish and distribute the articles.”
In the absence of an agreement to pay such royalty or consideration, the agreement would be
void under the Indian Contract Act, she contended through her counsel. A cursory examination
of the agreements demonstrated that the Plaintiffs have not compensated the authors with any
royalty or any form of consideration, the Court was told.
The Court, however, opined that these were aspects to be examined during adjudication after
an examination of disputed questions of facts.
“There is, as discussed above, a categorical admission of Ms. Elbakyan qua copyright in favour
of Plaintiffs. Therefore, the legal question urged in application, founded on the construction of
the agreements, is no longer a pure question of law. Further, the dispute relating to validity of
such agreements regarding adequacy or sufficiency of economic/ monetary consideration itself
is a question of fact and plea advanced in the instant application, founded on provisions of
Copyright Act, which would require adjudication on facts … The legality, veracity and
relevancy of such agreements cannot be undertaken at this stage”, the Court said, while
dismissing Elbakyan's application.
Senior Advocate Amit Sibal, and advocates Sneha Jain, Snehima Jauhari, R Ramya, Surabhi
Pande and Reshabh appeared for the plaintiffs.
Senior Advocate Gopal Sankaranarayan, and advocates Rohan George, Shrutanjaya
Bhardwaj, Shivani Vij, Akshat Agrawal, Sriya Sridhar and Nilesh Jain appeared for Alexandra
Elbakyan.
Advocates Vrinda Bhandari, Tanmay Singh, Abhinav Sekhri, Gautam Bhatia and Gayatri
Malhotra, Rohit Sharma, Nikhil Purohit, Ashok Kumar, Jawahar Raja, Moksha Sharma, Arushi
Gupta, Vaisha Sharma, M Dutta and Aditya Guha represented various intervenors.
Central Government Standing Counsel Harish Vaidyanathan Shankar, and advocates Srish
Kumar Mishra, Sagar Mehlawat and Alexander Mathai Paikaday represented the Union of
India.
Bar and bench 3 march 2023
1. The Supreme Court on Friday set aside the death sentence of a rape and murder accused
who was found to be a juvenile at the time of the crime.
A bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol upheld the conviction but
set aside the sentence based on a report Additional Sessions Judge, Manawar, District Dhar,
Madhya Pradesh which categorically stated that the accused was 15 years and 4 months of age
on the date of the incident, which was December 15, 2017.
The Court noted that as per Juvenile Justice Act, even in case of heinous offences, a minor
below 16 years of age cannot be sentenced to more than 3 years in prison.
"In the present case, the appellant is held to be less than 16 years, and therefore, the maximum
punishment that could be awarded is upto 3 years. The appellant has already undergone more
than 5 years. His incarceration beyond 3 years would be illegal, and therefore, he would be
liable to be released forthwith on this count also," the Court said.
The Court, therefore, set aside the sentence.
However, it upheld the conviction despite the fact that the Juvenile Justice Board (JJB) had
failed to conduct an inquiry with respect to the age of the accused.
The Court said that the Juvenile Justice Act intends to benefit minors only with respect to a
lenient sentence so as to bring him into the mainstream of the society, and not to make the
conviction ineffective.
" ... a trial conducted and conviction recorded by the Sessions Court would not be held to be
vitiated in law even though subsequently the person tried has been held to be a child. The
intention of the legislature was to give benefit to a person who is declared to be a child on the
date of the offence only with respect to its sentence part", the Court observed.
Hence, if the Juvenile Justice Board (JJB) fails to conduct inquiry with respect to the age of the
accused, the trial and conviction would not stand vitiated.
"Having considered the statutory provisions laid down in section 9 of the 2015 Act and also
section 7A of the 2000 Act which is identical to section 9 of the 2015 Act, we are of the view
that merits of the conviction could be tested and the conviction which was recorded cannot be
held to be vitiated in law merely because the inquiry was not conducted by JJB. It is only the
question of sentence for which the provisions of the 2015 Act would be attracted and any
sentence in excess of what is permissible under the 2015 Act will have to be accordingly
amended as per the provisions of the 2015 Act," the Court said.
Since the juvenile had already been in prison for 5 years and the maximum sentence that can
be awarded as per Juvenile Justice Act of 2015 is 3 years stay in a special home, the Court
ordered that he be released from custody.
The bench was hearing the death-row convict's appeal against a November 2018 order of the
Indore bench of the Madhya Pradesh High Court that had upheld his sentence and conviction.
The accused had moved an application claiming juvenility during the pendency of the appeal
before the top court.
The top court called for a report from a district judge in the State, after which it was found that
the boy was 15 at the time of the crime.
The counsel for the appellant before the top court argued that the death sentence imposed could
not have been given effect to under Section 9(2) of the 2015 Act.
The said proviso says that an enquiry has to be conducted if an accused raises claim that he
was a juvenile at the time of the offence.
The counsel added that the boy had already undergone over five years in jail and under Section
18 of the 2015 Act, a juvenile below 16 cannot be sentence to more than three years in a
correctional home.
The counsel for the State government sought an ossification test to determine his current age.
The top court said that the latter submission cannot be accepted at this stage as the State had
not called for such a test before the trial court, and documents relating to date of birth already
existed to prove his age.
Further, an ossification test would only give a rough broad assessment of age with an error
margin.
On the aspect of the accused's sentence, the bench at the outset said,
"In view of the statutory provisions and in view of the findings recorded, the appellant having
been held to be a child on the date of commission of the offence, the [death] sentence imposed
has to be made ineffective."
It noted that the maximum sentence could not be more than three years in any case.
"His incarceration beyond 3 years would be illegal, and therefore, he would be liable to be
released forthwith on this count also," the judgment emphasised.
However, the bench noted that nothing in Section 9 of the Act implies that a conviction
recorded against a person later found to be a juvenile would also lose its effect or stall criminal
proceedings.
"If the conviction was also to be made ineffective then either the jurisdiction of regular Sessions
Court would have been completely excluded not only under section 9 of the 2015 Act but also
under section 25 of the 2015 Act, provision would have been made that on a finding being
recorded that the person being tried is a child, a pending trial should also be relegated to the
JJB and also that such trial would be held to be null and void."
The legislative intent of the 2015 Act was not to make minors who had committed heinous
crimes go scot-free, the bench made it clear.
In this regard, the Court explained that the object of the 2015 Act deals with the rights and
liberties of juveniles, so as to ensure that can be brought into the mainstream through a lenient
sentence by lodging them in a juvenile justice board-approved home/institution.
Accordingly, the Supreme Court partly allowed the appeal and set aside the death sentence.
"The conviction of the appellant is upheld; however, the sentence is set aside. Further as the
appellant at present would be more than 20 years old, there would be no requirement of
sending him to the JJB or any other child care facility or institution. Appellant is in judicial
custody. He shall be released forthwith," the Court ordered.
Senior Advocate Aman Lekhi with advocates Ritwiz Rishab, Sakshi Jain, Sneha Sonam, and
Rajat Mittal appeared for the appellant. Anti-death penalty body Project 39A briefed Lekhi.
Deputy Advocates General Mukul Singh and Ankita Chaudhary with advocates Yashraj
Singh Bundela, Sunny Choudhary, Shreyash Balaji, Sandeep Sharma, Ankita Choudhary,
Abhinav Shrivastava, and Karan Bishnoi appeared for the State of Madhya Pradesh.
Bar and Bench 4th march
Published on :
2. 3 Mar, 2023, 2:14 pm
The Karnataka High Court recently called for investigations into mobile loan apps run by
Chinese companies [M/S Inditrade Fincorp Ltd v. Union of India].
Single-judge Justice M Nagaprasanna said that investigation was essential to ensure the
security of India and the safety of its citizens and authorities cannot turn a blind eye to attempts
by neighbouring nations to destabilize India.
The Court, therefore, refused to interfere with an Enforcement Directorate (ED) probe into the
workings of one such company.
"The investigation would be imperative, as any effort of any neighbouring nation to destabilize
this country, either economically or otherwise, by any method which would touch upon the
security of the nation and safety of its citizens, cannot be turned a blind eye to, and in certain
cases, certainly in the case of the petitioner, investigation cannot be stalled on this specious
plea of procedural aberration as alleged by the petitioner," the Court said.
Describing the modus operandi of such companies, the Court noted that Indian smartphone
users are lured into getting small loans from through these apps without documentation.
They are asked to download the app and grant the companies access to the contents of their
smartphones. Trouble crops up when the representatives of the companies threaten to leak the
contents of the borrowers' phones while seeking repayment of the loan. In some cases,
repayment is sought at a rate as high as 16-20 times the EMI, the Court recorded.
"It is again in public domain that several borrowers have committed suicide unable to bear the
harassments of the representatives of such loan apps. The office bearers of several of these
companies which control and operate such mobile loan apps are said to be entities of China
or individuals from China sitting as Directors of such mobile loan apps. Therefore, it becomes
necessary for an investigation, in the least to be conducted of any such company, who would
operate such loan apps and has transactions with each other," the judge noted.
The Court was hearing a plea filed by a company called Inditrade Fincorp challenging an order
passed by the ED freezing its accounts.
The petitioner company claimed to be a non-banking financial company (NBFC) which
disbursed digital micro-loans under the regulation of the Reserve Bank of India (RBI).
The ED had frozen the company's accounts after conducting searches at Cashfree Payments
and Razorpay Solutions, two of the payment gateways through which the petitioner-company
operated.
Before the High Court, the company contended that the search and seizure conducted by the
ED, as well as the show cause notice issued by the Adjudicating Authority, were contrary to
law. It was also submitted that there was no Chinese citizen involved in the company.
The ED, on the other hand, alleged that the petitioner had links to Chinese apps, and was part
of a "serious conspiracy" that could be unearthed only through investigation.
The Court noted that as many as 15 first information reports (FIRs) were registered by the
Cyber Crime Police Station at Bengaluru against several companies for their involvement in
harassment and extortion of members of the public who had availed loans through mobile apps.
Based on these registered cases, the ED conducted raids at the offices of Razorpay and other
payment gateways, and found the names of 111 entities, of which the petitioner was one.
It was found that such entities are operating in India through dummy contractors appointed on
behalf of Chinese directors. Based on such information, a show cause notice was issued to the
petitioner.
After going through Section 17 of the Prevention of Money Laundering Act, which grants the
ED powers of search and seizure, the Court found that there was no procedural infirmity in the
case.
"The projection of procedural aberration by the petitioner would not entitle entertainment of
the petition, as there is link in the money trail against the petitioner...this is enough
circumstance for the Adjudicating Authority to issue a notice to the petitioner."
It thus dismissed the challenge to the show cause notice as well as the freezing order
Advocate Avi Singh appeared for the petitioner-company, while advocates KN Krishna Rao
and Madhukar Deshpande represented the Central government and the ED respectively.
5. Maintenance is a woman's legal right in
India, but accessing it is arduous
Most women in India seem to want the divorce proceedings
to end out of emotional and financial exhaustion, and choose
to settle for whatever maintenance they get despite having a
legal right to claim it.
In India, ending a marriage is traumatic for most individuals. The situation
becomes worse for women who must navigate settlement terms and follow up
on maintenance money for their and their children’s wellbeing, adding to the
complexity of the stigma of divorce. Nihala was 24 years old, with a toddler,
when she decided to walk out of her marriage. “I had already suffered in a
turbulent marriage and had no emotional energy to fight my ex-husband for
maintenance. I just wanted out,” she says, recalling the entire ordeal.
Maintenance is the allowance a spouse must pay the other spouse when they
are unable to meet their monthly expenses. Maintenance also applies to
children, if any, so that caregiving expenses for the child are not
disproportionately borne by one parent alone. In India, maintenance can be
claimed under personal laws like the Hindu Marriage Act 1955, Hindu
Adoption and Maintenance Act 1956, Muslim Personal Law, Muslim Women
(Protection of Rights on Divorce) Act 1986, etc. Under some personal laws like
the Hindu Marriage Act, the husband is also entitled to maintenance. But these
laws only permit individuals belonging to the specified religions to file for
maintenance. Section 125 of the Criminal Procedure Code (CrPC) also
provides for maintenance. This is a secular provision under which women of
all religions can file for maintenance.
“The main objective of Section 125 CrPC is to prevent the destitution of the
woman after divorce. So when a woman approaches the court for
maintenance, it is with a lot of hope, and one must underline that the courts
have been supportive in most cases. But the effective implementation of a
maintenance order always depends on the man who is supposed to pay,” says
senior lawyer and human rights litigant Sandhya Raju.
Though maintenance, in the broad sense, is a legal right designed to ensure
that women have some financial support after a divorce, very few women are
able to successfully claim this right and access the money. “My lawyers
explained to me that maintenance is my legal right. I was aware of that. But
my ex-husband said that if I claim maintenance, he would not give me a
divorce. I was stressed about the divorce itself being prolonged, as it was
affecting my child’s emotional well-being also. It was excruciating,” recalls
Nihala, who hails from Kannur in Kerala, elaborates.
Under the CrPC, a wife who is unable to maintain herself is legally entitled to
maintenance in all scenarios. However, there are a few exceptions — if she is
living with another man, if she refuses to live with the husband without any
reason, if she remarries, or if the husband and wife are living separately by
mutual consent. The law also provides for women in live-in
relationships to claim maintenance.
In Rajnesh vs Neha, the Supreme Court listed some broad guidelines with
respect to maintenance — before determining the amount of maintenance to
be paid, the court should assess the financial status of both parties. The SC
also said the court should also evaluate their educational backgrounds, and
order both parties to file an affidavit detailing their assets and liabilities.
Chennai-based advocate Manoj, who deals extensively with family law cases,
elaborates that the law favours maintenance for women because it takes into
account what really happens in the lives of most women. “Typically, women
are married off when they attain a socially accepted marriageable age.
Especially women from rural and semi-urban settings may not have the
opportunity to complete their education and be financially independent
before marriage. In the marriage, they do all the housework and care work –
which is invisible labour – for which they receive no compensation. When
such a woman decides to end her marriage, she finds herself in a situation
where she has nobody and nothing to rely on. This is why the husband is
legally required to pay maintenance, because the woman has spent her time
and labour in the marriage, building the family, with nothing else to cushion
her. There has to be some support when she decides to separate,” Manoj says.
Getting a court order vs getting the maintenance money
Many factors contribute to why women are unable to access maintenance
money even when there is a court order directing the man to pay a specific
amount to his ex-wife and children. Advocate Sandhya feels that the root
cause is definitely our patriarchal mindset which stigmatises divorce to such
an extent that when women walk out of marriages, the society believes they
deserve no aid.
Shylaja (name changed), who has been married for 10 years with two
children, says that her family was not in support of her decision to file for
divorce. “I walked away from the marriage and lived with my parents right
after the separation. But I received no support, I had to seek the help of a
social support group for accommodation. And my divorce proceedings are still
going on. Filing for the divorce itself has been so turbulent. It took me a year
to file a petition because I did not have access to the required documents.
Fighting for maintenance has been doubly hard for me given my situation,”
says the 29-year-old from Chennai.
Sandhya attests that the courts have been sensitive to women who seek
divorce and maintenance. “Getting a maintenance order from a court is not the
difficult part usually. It is getting the ex-husband to pay up that is tedious.
Most women have a court order allowing maintenance, but not many actually
get the money,” she says.
“My ex-husband did not sign the papers for nearly two years after I decided to
get a divorce, only because I asked for maintenance. Later, he agreed to pay
only for my child’s expenses but said he would not pay me anything. I had to
compromise because otherwise, it would only prolong the process,” says
Nihala.
She also feels that the restitution of conjugal rights — a legal provision where
one spouse can approach the court citing that their spouse left them without
cause and that their right to cohabitation is violated — is abused by men who
have no intention to pay maintenance. “When I filed for maintenance, my ex
filed for restitution of conjugal rights, claiming that if I lived with him he was
willing to look after me. That made it look as if I was asking for a divorce for
no serious reason. He knew I would not go back, so he used the law to have me
run around in circles,” Nihala adds.
Manoj says that procedurally, the court can pass an order for the attachment
of property or salary of the ex-husband if he refuses to make payment. “If that
also does not work, the court can further order civil imprisonment and have
the man taken into custody for non-payment. But what usually happens is that
when a man does not want to pay, he absconds. Some men also make up
excuses about losing their jobs or not being paid salaries, to evade payment of
maintenance,” he adds. He also notes that in situations where the ex-husband
is absconding, an ex-parte divorce (divorce in the absence of one spouse) is
granted by the court. This further complicates the process of getting
maintenance and women then have the additional onus of tracing their
absconding spouses, in which they are often unsuccessful.
While looking at the legality of maintenance, alimony is one term that often
seems similar. Alimony is a lump sum amount paid as a final settlement
during a divorce proceeding, whereas maintenance is a monthly amount paid
for the daily sustenance of a divorced woman who is unable to look after
herself. “In many cases, people also use settlement as a loophole to delay
payment. They insist that they are willing to pay a lump sum to their ex-wife
instead of a monthly allowance and keep dragging the negotiation procedure
to push the payment. What happens here is that the woman suffers, especially
when she has no other income and has children to look after,” says Sandhya.
Shylaja also says that women who decide to push for maintenance face a lot of
gaslighting. “Everyone told me that men are bound to be problematic and that
we women must compromise. They tried to water down my efforts to get a
divorce and maintenance by emotionally confusing me with questions like
‘how will you survive with two kids and no other support in the absence of a
husband’. These things sometimes get to us, making us doubtful about our
own rights,” she says.
Domestic violence and accusations of false case for money
The Protection of Women from Domestic Violence Act (PDV), 2005 is another
legislation in India that provides for maintenance. “Women who suffer
domestic violence and dowry harassment are entitled to claim maintenance.
But when such a case is filed, the husband immediately campaigns that the
woman is making a false claim of abuse just to extort money,” says Sandhya.
“There are different forms of domestic violence that women experience. When
we look at Dalit women, in the case of marriage with men from other religions
or dominant castes, there is caste-based violence as well. But the key problem
with domestic violence is that by the time the woman files a case, there is
barely any physical evidence to prove it,” observes Manoj.
Both Manoj and Sandhya assert that the normalisation of violence in
marriages encourages women to cover it up and suffer generationally, due to
which there is no recorded evidence of the violence. “Women who seek
medical attention because of domestic abuse also seldom tell doctors the real
reason behind their injuries. Besides, families and society urge them to stay in
the marriage. When such women finally decide to claim maintenance under
the PDV Act, there is no evidence of the abuse. There are no witnesses also
since these things happen in private. It then becomes easy for the husband to
say that the woman is making a fake claim to extort money from him,” says
Manoj.
Josephine (name changed), a mother of two who has been married for seven
years, says that she faced severe domestic abuse and that her husband would
not provide for her and their children. “He filed for divorce, but nobody
appeared from his end at the court, and consequently, the case got dismissed. I
approached the court later for maintenance, but there was no representation
from my husband’s side and he was not willing to accept the court notice
either. I did not know his address or where he was working to make sure that
he received the notice since I had moved to my parents’ place by then. So, I
was not able to file for maintenance,” she says.
Shaming women who claim maintenance
Manoj notes that women who claim maintenance are seen as capitalising on
the breakdown of their marriage. “To address the issue of shaming women
who claim maintenance, we must first understand why the law provides for
maintenance,” he says.
Many people feel that maintenance is an ‘undue advantage’ sanctioned to
women through the law to ‘loot’ their ex-husbands. Therefore, when a
maintenance petition is filed, the woman is accused of wanting her exhusband’s money despite not wanting to live with him anymore. “My exhusband said ‘You don’t want me, but you want my money?’” recalls Shylaja.
“Everyone accused me of wanting to access my ex’s wealth. Nobody even felt
that maintenance is my right, that I would need help to raise my kids and
sustain myself. The comments got so painful that at one point I thought about
dropping the attempt to claim maintenance. I’m still processing my thoughts,”
she says.
“It is a double-edged sword in any case. If the woman has any source of
income, the defence will cite that to not pay maintenance. We do not look at
marriage in terms of the years spent and the labour invested in it, which
deserves compensation. We think maintenance is quick, easy money that
women claim so they can live off their ex-husband’s money. Even women
internalise it sometimes and shame themselves, or feel reluctant to ask for
maintenance, slogging every day with whatever they can manage,” says
Sandhya.
The attitude of shaming women who seek divorce or maintenance exists even
within the judiciary, notes 31-year-old Meenakshi. “When I was in court for
my divorce proceeding, I witnessed a young woman being reprimanded by the
judge for even filing for a divorce. She shamed the woman for being financially
independent, saying that when women earn for themselves they do not want
to ‘adjust’ in marriages. It is an attitude problem,” she says, adding that she is
‘fortunate enough’ to have had the emotional support to walk out of a troubled
marriage.
Most women seem to want the ordeal to end, and choose to settle for
whatever they can get after a divorce despite having to rebuild emotionally
and financially. “I’m educated, and I can try to build a life for myself and my
child even though my ex refused to pay me any money. But what about
women who are not like me? Even in my case, it is my right to get
maintenance but I was forced to accept a divorce without it because I just
wanted the process to end. I wanted peace,” recalls Nihala.
“A woman I knew, who was a domestic worker, put together everything she
had and got her daughter married. The son-in-law abused her daughter and
took away all her gold and money. But the woman and daughter were so
traumatised and exhausted that they did not have the strength or the
resources to pursue the case legally,” recalls Sandhya.
In the absence of facilitating mechanisms and community support, most
women just drop their claim for maintenance, accepting defeat against a
system that simply fails to help them access a legal right. “I don’t have a job
but I need to raise my kids, sustain myself, and fight the case in court. Whether
my husband appears in court or not, if I want to file a maintenance case I need
to hire a lawyer, which is a financial burden on me. So I dropped the idea of
getting maintenance. I am making myself believe that I won’t get anything
anyway, so I remain silent about it and focus on looking after my kids,” says
Josephine.
Sandhya says that financial independence is the key to ensuring that women
do not get entangled in judicial red tape. “I always encourage young women to
try to be financially stable before they get married. Money makes decisionmaking easier if the marriage falters. Even working women face divorce
stigma, but at least while they fight the system they have something that is
their own to fall back on,” she says.
“It is surely unfair to put the burden of an ineffective justice system on women
by suggesting that they must look out for themselves, especially those who
have no privilege, but this is how we can ensure that women are better placed
at this point, while we continue to interrogate and reform the system,” she
adds.
This reporting is made possible with support from Report for the World,
an initiative of The GroundTruth Project.
Supreme Court Issues Directions For
Timely Release Of Prisoners After Getting
Bail
Anurag Tiwary
2 Feb 2023 2:38 PM
The Supreme Court has issued the following guidelines on the issue of
undertrial prisoners who continue to be in custody despite having been
granted the benefit of bail on account of their inability to fulfill the conditions
stipulated in the bail order or otherwise.
“1)The Court which grants bail to an undertrial prisoner/convict would be
required to send a soft copy of the bail order by e-mail to the prisoner through
the Jail Superintendent on the same day or the next day. The Jail Superintendent
would be required to enter the date of grant of bail in the e-prisons software [or
any other software which is being used by the Prison Department].
Also Read - Supreme Court Asks Centre To Ascertain Number Of Tiger Deaths
In Recent Past
2) If the accused is not released within a period of 7 days from the date of grant
of bail, it would be the duty of the Superintendent of Jail to inform the Secretary,
DLSA who may depute para legal volunteer or jail visiting advocate to interact
with the prisoner and assist the prisoner in all ways possible for his release.
3) NIC would make attempts to create necessary fields in the e-prison software
so that the date of grant of bail and date of release are entered by the Prison
Department and in case the prisoner is not released within 7 days, then an
automatic email can be sent to the Secretary, DLSA.
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4) The Secretary, DLSA with a view to find out the economic condition of the
accused, may take help of the Probation Officers or the Para Legal Volunteers to
prepare a report on the socio-economic conditions of the inmate which may be
placed before the concerned Court with a request to relax the condition (s) of
bail/surety.
5) In cases where the undertrial or convict requests that he can furnish bail
bond or sureties once released, then in an appropriate case, the Court may
consider granting temporary bail for a specified period to the accused so that he
can furnish bail bond or sureties.
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6) If the bail bonds are not furnished within one month from the date of grant
bail, the concerned Court may suo moto take up the case and consider whether
the conditions of bail require modification/ relaxation.
7) One of the reasons which delays the release of the accused/ convict is the
insistence upon local surety. It is suggested that in such cases, the courts may not
impose the condition of local surety.”
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The above directions are part of the detailed and comprehensive suggestions
submitted to court by by the three Amici Curiae viz. Advocates Gaurav
Agrawal, Liz Mathew and Devansh A. Mohta, after discussion with ASG K. M.
Nataraj.
The bench of Justices Sanjay Kishan Kaul and Abhay S. Oka also observed
in the order that the Government of India should discuss with NALSA whether
it would give access to the e-prison portal on a protected basis to the
Secretaries of the SLSAs and DLSAs which would facilitate better follow up
with the prison authorities. ASG KM Nataraj assured the bench that granting
permission wouldn't be a problem, however, he would seek instructions and
get back to the court on the next date of hearing.
During the last hearing, the court had issued detailed guidelines on disposing
cases through plea bargaining, compounding of offences & Probation Of
Offenders Act. The court posted the hearing to March.
Thanking the Amicus Curiae for their hard work in assisting the court, Justice
Kaul, after passing the orders said, “All of you, the Amicus, the ASG are doing
more work I think to sort out this issue than could be done if the number of
courts would only be hearing this issue”
Case Title: In Re Policy Strategy for Grant of Bail SMW (Crl.) No. 4/2021
Citation : 2023 LiveLaw (SC) 76
Bail bond- Supreme Court issues seven directions to avoid delay in
release of prisoners after getting bail
Click here to read/download the order
Livelaw
Article 105 of Constitution: The limits to
free speech in Parliament, and what
Supreme Court has ruled
In a letter to Rajya Sabha Chairman Jagdeep Dhankhar,
Congress president Mallikarjun Kharge cited Article 105 of
the Constitution that deals with the privileges and powers of
parliamentarians. What is the provision and how does it
protect MPs?
Protesting against the expunction of parts of his speech on the motion of
thanks on the President’s Address, Leader of Opposition in Rajya Sabha and
Congress president Mallikarjun Kharge has argued that MPs have freedom
of speech, and that he did not make any personal allegations in the House.
In his letter to Rajya Sabha Chairman Jagdeep Dhankhar on Thursday
(February 9), Kharge cited Article 105 of the Constitution that deals with the
privileges and powers of parliamentarians. What is the provision and how
does it protect MPs?
What does Article 105 say?
Article 105 of the Constitution deals with “powers, privileges, etc of the
Houses of Parliament and of the members and committees thereof”, and has
four clauses. It reads:
“(1) Subject to the provisions of this Constitution and to the rules and
standing orders regulating the procedure of Parliament, there shall be
freedom of speech in Parliament.
(2) No member of Parliament shall be liable to any proceedings in any court in
respect of any thing said or any vote given by him in Parliament or any
committee thereof, and no person shall be so liable in respect of the
publication by or under the authority of either House of Parliament of any
report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of each House of
Parliament, and of the members and the committees of each House, shall be
such as may from time to time be defined by Parliament by law, and, until so
defined, shall be those of that House and of its members and committees
immediately before the coming into force of section 15 of the Constitution
(Forty-fourth Amendment) Act, 1978.
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons
who by virtue of this Constitution have the right to speak in, and otherwise to
take part in the proceedings of, a House of Parliament or any committee
thereof as they apply in relation to members of Parliament.”
Simply put, Members of Parliament are exempted from any legal action for
any statement made or act done in the course of their duties. For example, a
defamation suit cannot be filed for a statement made in the House.
This immunity extends to certain non-members as well, such as the Attorney
General for India or a Minister who may not be a member but speaks in the
House. In cases where a Member oversteps or exceeds the contours of
admissible free speech, the Speaker or the House itself will deal with it, as
opposed to the court.
So are there absolutely no restrictions on this privilege?
There are some, indeed. For example Article 121 of the Constitution prohibits
any discussion in Parliament regarding the “conduct of any Judge of the
Supreme Court or of a High Court in the discharge of his duties except upon a
motion for presenting an address to the President praying for the removal of
the Judge..”.
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Where did the idea of this privilege of Parliament
originate?
The Government of India Act, 1935 first brought this provision to India, with
references to the powers and privileges enjoyed by the House of Commons in
Britain. An initial draft of the Constitution too contained the reference to the
House of Commons, but it was subsequently dropped.
However, unlike India where the Constitution is paramount, Britain follows
Parliamentary supremacy. The privileges of the House of Commons is based in
common law, developed over centuries through precedents.
In the 17th-century case ‘R vs Elliot, Holles and Valentine’, Sir John Elliot, a
member of the House of Commons was arrested for seditious words spoken in
a debate and for violence against the Speaker. However, the House of Lords
provided immunity to Sir John, saying that words spoken in Parliament should
only be judged therein.
This privilege has also been enshrined in the Bill of Rights 1689, by which the
Parliament of England definitively established the principle of a constitutional
monarchy.
In the 1884 case of ‘Bradlaugh v. Gosset’, then Chief Justice Lord Coleridge of
the House of Lords observed: “What is said or done within the walls of
Parliament cannot be inquired into in a court of law.”
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And what have courts in India ruled?
* In the 1970 ruling in ‘Tej Kiran Jain v N Sanjiva Reddy’, the Supreme Court
dismissed a plea for damages filed by the followers of the Puri
Shankaracharya against parliamentarians.
The judgment recalled that “in March 1969, a World Hindu Religious
Conference was held at Patna. The Shankaracharya took part in it and is
reported to have observed that untouchability was in harmony with the tenets
of Hinduism and that no law could stand in its way, and to have walked out
when the National Anthem was played.”
The petitioners claimed that when the issue was debated in Parliament,
uncharitable remarks were made against the seer. The petitioners argued that
the MPs’ immunity “was against an alleged irregularity of procedure but not
against an illegality”.
However, the SC ruled that “the word “anything” in Article 105 is of the widest
import and is equivalent to ‘everything’.”
* Almost two decades later, in 1998, the SC in the case of ‘P V Narasimha Rao
vs. State’ answered two questions on parliamentary privilege, broadly relating
to questions of corruption.
In 1993, Narasimha Rao was Prime Minister of a minority government at the
Centre. When a vote of no-confidence was called by members of the
opposition against the government, some factions of the ruling party
paid Jharkhand Mukti Morcha (JMM) members to vote against the motion. The
motion was defeated in the House, with 251 members supporting it and 265
members against it.
Two questions came before the Supreme Court.
One, whether MPs could claim immunity from prosecution before a criminal
court on charges of bribery related to parliamentary proceedings, under
Articles 105(1) and 105(2).
Two, whether an MP is a “public servant” under the Prevention of Corruption
Act, 1988.
A five-judge Bench of the apex court ruled that the ordinary law would not
apply to the acceptance of a bribe by an MP in case of parliamentary
proceedings. “Broadly interpreted, as we think it should be, Article 105(2)
protects a Member of Parliament against proceedings in court that relate to,
or concern, or have a connection or nexus with anything said, or a vote given,
by him in Parliament,” the court said, giving a wider ambit to the protection
accorded under Article 105(2).
The Court rationalised this by saying it will “enable members to participate
fearlessly in Parliamentary debates” and that these members need the wider
protection of immunity against all civil and criminal proceedings that bear a
nexus to their speech or vote.
Indian Express Explained
he Supreme Court Advocates-on-Record Association (SCAORA) on Monday
(January 23) condemned business magazine Forbes India’s decision to publish
a ‘Legal Powerlist’ of the top 25 Advocates-on-Record.
The SCAORA unanimously passed a resolution denouncing the list as
“misleading” and “unauthorized information” after its executive committee
received a complaint. SCAORA said the list was a “clear case of
misrepresentation”, and undermined the interests of Supreme Court AORs.
“It is resolved that SCAORA would request Hon’ble Judges to take into
consideration our concern in the larger interest of legal professionals,” the
resolution published on the association’s website says.
What is the law on lawyers advertising their work?
In India, lawyers and legal practitioners are not allowed to advertise their
work.
Section 49(1)(c) of the Advocates Act, 1961 empowers the Bar Council of
India (BCI) to make rules with respect to “the standard of professional
conduct and etiquette to be observed by advocates”. Rule 36 in Chapter II
(“Standards of Professional Conduct and Etiquette”) of Part VI (“Rules
Governing Advocates”) of the BCI Rules published in 1975 prohibits lawyers
from advertising their work.
The Rule reads: “An advocate shall not solicit work or advertise, either
directly or indirectly, whether by circulars, advertisements, touts, personal
communications, interviews not warranted by personal relations, furnishing
or inspiring newspaper comments or producing his photographs to be
published in connection with cases in which he has been engaged or
concerned.”
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What is the law on this?
Rule 36 also requires that an advocate’s signboard or nameplate “should be of
a reasonable size”. The signboard/ nameplate or stationery “should not
indicate that he is or has been President or Member of a Bar Council or of any
Association or that he has been associated with any person or organisation or
with any particular cause or matter or that he specialises in any particular
type of work or that he has been a Judge or an Advocate General”.
An advocate who violates this rule can face punishment for professional or
other misconduct under Section 35 of the Advocates Act.
This section empowers the State Bar Council to refer the case to a disciplinary
committee that can, after giving the advocate an opportunity to be heard,
suspend him for some time, remove his name from the state’s roll of
advocates, or reprimand him — or dismiss the complaint altogether.
What is the basis for having such a rule?
In a 1975 ruling, Justice Krishna Iyer of the Supreme Court in ‘Bar Council of
Maharashtra vs. M V Dabholkar’ provided the rationale for this: “Law is no
trade, briefs no merchandise, and so the leaven of commercial competition or
procurement should not vulgarise the legal profession.”
In 1995, in ‘Indian Council Of Legal Aid & Advice vs Bar Council Of India &
Anr’, the SC said that “the functions of the Bar Council include the laying down
of standards of professional conduct and etiquette which advocates must
follow to maintain the dignity and purity of the profession.”
Law, the SC said, was a “noble profession”, and those engaged in it have
certain obligations in society as the practice of law has a “public utility
flavour”.
What changed in 2008?
Following a challenge in the SC to the constitutional validity of Rule 36 in ‘VB
Joshi vs Union of India’, the restrictions were somewhat relaxed. In 2008, Rule
36 was amended, and advocates were allowed to provide their names, contact
details, post qualification experience, enrollment number, specialisation, and
areas of practice on their websites.
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A proviso to Rule 36 inserted in 2008 said the rule “will not stand in the way
of advocates furnishing website information as prescribed in the Schedule
under intimation to and as approved by the Bar Council of India”.
With the proliferation of web portals and apps offering legal services on the
Internet, legal practitioners have been finding indirect and more subtle ways
to advertise themselves while staying within the confines of Rule 36. Many of
them post about their work on Linkedin, organise and speak at webinars and
seminars, write columns for newspapers, and appear on TV programmes and
debates.
What is the situation in other countries?
Lawyers can legally advertise their services in the United States, the United
Kingdom, Australia, and the European Union.
* UK: Rule 7 of the Solicitors Code of Conduct 2007, allows lawyers in the UK
and Wales to advertise their practice, business or firm as long as it’s not done
in a “misleading” or “false” way. Rule 7 reads: “You are generally free to
publicize your firm or practice, subject to the requirements of this rule.”
* US: The American Bar Association’s Model Rules of Professional Conduct
(MRPC) issued in 1908 prohibited advertising for lawyers. Ordinance 27
reiterated the prohibition by construing “soliciting” as unprofessional.
However, after the US Supreme Court’s landmark 1977 decision in ‘Bates vs
Arizona’, lawyers can advertise their services. Bar associations of states are
free to make laws in this regard.
* EU: Section 2.6 of the Council of Bars and Law Societies of the Europe Code
of 2006 discusses the aspect of “Personal Publicity”. Section 2.6.1 allows a
lawyer to inform the public about his services as long as the information is
accurate and not misleading, respectful of confidentiality obligations and
other core values of the legal profession. Personal publicity by a lawyer in any
form of media is permitted to the extent it complies with the requirements of
Section 2.6.1.
Plea in Delhi High Court: What is the
‘Right to be Forgotten’?
The 'Right to be Forgotten' is the right to remove or erase
content so that it’s not accessible to the public at large. It
empowers an individual to have information in the form of
news, videos, or photographs deleted from internet records
so it doesn't show up through search engines like Google.
The Delhi High Court, on March 15, is all set to hear a doctor’s plea for
enforcement of his ‘Right to be Forgotten’, which includes the removal of news
articles and other incriminating content related to his “wrongful arrest” in
response to a “fabricated FIR against him” which he claims is causing
detriment to his life and personal liberty.
What is this case?
In “Dr. Ishwarprasad Gilda vs. Union of India & Others”, a practicing doctor
who is a “world-renowned figure in the fight against HIV-AIDS” was accused
of offenses under the Indian Penal Code, including causing death by
negligence (Section 304A), cheating (Section 417) and personating a public
servant (Section 170). The doctor was accused of illegally procuring
medicines from abroad and administering them to HIV patients in India, who
he was also accused of “mishandling”. When one of the patients, Girdhar
Verma, passed away, the petitioner contends he was wrongfully arrested on
April 23, 1999, and was subsequently given bail on May 11, 1999. Thereafter,
relying on a trial court order from August 4, 2009, exonerating him, he
reiterated that there was no evidence of him having engaged in any illegality.
Thus, the doctor approached the Delhi High Court seeking directions to the
respondents like Google, the Press Information Bureau, and the Press Council
of India to remove all “irrelevant” news content causing “grave injury” to his
reputation and dignity or to pass any other order or direction to safeguard his
dignity, including availing his “Right to be Forgotten.”
What is the Right to be Forgotten?
The “Right to be Forgotten” is the right to remove or erase content so that it’s
not accessible to the public at large. It empowers an individual to have
information in the form of news, video, or photographs deleted from internet
records so it doesn’t show up through search engines, like Google in the
present case.
What is the law on the Right to be Forgotten?
Section 43A of the Information Technology Act, 2000 says that organizations
who possess sensitive personal data and fail to maintain appropriate security
to safeguard such data, resulting in wrongful loss or wrongful gain to anyone,
may be obligated to pay damages to the affected person.
While, the IT Rules, 2021 do not include this right, they do however, lay down
the procedure for filing complaints with the designated Grievance Officer so as
to have content exposing personal information about a complainant removed
from the internet.
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Moreover, on December 11, 2019, the Ministry of Electronics and Information
Technology introduced the Personal Data Protection Bill in the Lok Sabha.
While this bill is yet to be passed by the parliament, owing to a parliamentary
joint committee’s suggestion to amend 81 of the 99 sections of the same,
Clause 20 under Chapter V of the draft bill titled, “Rights of Data Principal”
mentions the “Right to be Forgotten” as the right to restrict or prevent the
continuing disclosure of personal data by a “data fiduciary”.
What have the courts said so far?
While the right is not recognized by a law or a statute in India expressly, the
courts have repeatedly held it to be endemic to an individual’s Right to
Privacy under Article 21 since the Apex Court’s 2017 ruling in
“K.S.Puttaswamy vs Union of India”. In this case, a nine-judge bench,
including CJI Chandrachud, referred to the European Union Regulation of
2016 which recognized “the right to be forgotten” an individual’s right to
remove personal information from the system when “he is no longer desirous
of his personal data to be processed or stored” or when “its no longer
necessary, relevant, or is incorrect and serves no legitimate interest”.
However, the court also recognized that such a right can be restricted by the
right to freedom of expression and information or “for compliance with legal
obligations”, or for the performance of tasks in the public interest or on
“grounds of public interest in the area of public health” or “scientific or
historical research purposes or statistical purposes, or for the establishment”
and “exercise or defense of legal claims”.
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In “Jorawer Singh Mundy vs Union of India”, an American citizen approached
the Delhi High Court in 2021 seeking the removal of all publicly available
records of a case registered against him under the Narcotics Drugs and
Psychotropic Substances Act, 1985. He argued that although the trial court
acquitted him back in 2011, he was unable to find a job in the United States on
account of a quick Google search showing the judgment in his case. Despite a
good academic record, this prejudiced his chances of employment, he argued.
Thus, the court directed respondents like ‘IndianKanoon’ to remove the same.
What are the origins of this Right?
The Right to be Forgotten originates from the 2014 European Court of
Justice ruling in the case of “Google Spain SL, Google Inc v Agencia Española de
Protección de Datos, Mario Costeja González”, where it was codified for the
first time following a Spanish man’s quest to make the world forget a 1998
advertisement saying “his home was being repossessed to pay off debts.”
Thereafter, it was included in the EU’s General Data Protection Regulation
(GDPR) in addition to the right to erasure. Article 17 of the GDPR provides for
the right to erasure and lays down certain conditions when such a right can be
restricted.