http://www.tehelka.com/story_main47.asp?filename=Ne021010Chief_Injustices.asp
From the affidavits given by Mr Prashant Bhushan in contempt case against him, it is prima-facie evident that corrupt judges in SC have been spared only because many MPs do not want to sign on impeachment motions, since they have their own cases pending in SC!
So judiciary is independent of legislature, but legislators are not independent from judiciary!
Finally, Mr Moily has said something (he makes statements often) which has elements of rationality beyond making newer laws to fix problems. This should be considered by lawmakers who are ever ready to create new laws to tackle honour killings, and what else – supposedly under pressure from media and public.
Without the ability to execute on newly created laws, they are in danger of going the same way as of 38 lakh number of pending cheque bouncing cases. You are carrying a bounced cheque in one pocket? No problem… file a criminal case and carry the papers in another pocket!
With crores of cases pending in courts across the country, the Law Ministry has suggested that Law Ministry should make fresh laws only after assessing the extra burden they are likely to impose on the courts and ensuring the provision of money required for the purpose. "Assessment must be made for the purpose of estimating the extra load any new bill or legislation may add to the burden of courts and expenditure required for the purpose," Law Minister M Veerappa Moily has said in a letter to Finance Minister Pranab Mukherjee.
Nearly three crore cases are pending in courts (lower courts and higher judiciary) across the country, and the backlog is on a steady increase. According to government estimates based on 2009 figures, it takes 15 years on an average to finally decide a court case in India.
Moily's letter, based on the recommendations of the task force on Judicial Impact Assessment, says the government can anticipate the likely cost of implementing a legislation through the courts by a judicial impact assessment.
The task force, which based its findings on the research work by former Law Secretary T K Viswanathan, who is now Advisor in the Law Ministry, had recommended that it should be made mandatory to provide an estimate of the burden likely to be imposed on courts by every bill passed by Parliament or state legislatures.
In a similar letter recently, Moily had stressed the need for immediate setting up of special courts to deal with "surmounting" cases under Section 138 of the Negotiable Instruments Act. In that letter, also addressed to the Finance Minister, Moily had said that there are about 38 lakh cheque bouncing cases pending in the trial courts and this need to be speedily addressed by setting up special courts.
And we need a high court judgment to tell us this… after supreme court reportedly has already said so… Bharat Mahan… raho pareshaan!
TNN, Aug 27, 2010, 01.39am IST
MUMBAI: With live-in relations being accorded sanctity by law, can a girlfriend be a relative, the Bombay high court wondered on Thursday. The court was hearing an application filed by a woman, Sunita, who had been named in a dowry harassment case. She had been dragged into the case filed by another woman, who claimed that Sunita was her husband's girlfriend and had accused her of cruelty.
A division bench of Justice A M Khanwilkar and Justice U D Salvi, in an interim order, stayed the criminal charges in the case against her till further orders.
Section 498 A of the Indian Penal Code deals with cruelty to a married woman by her husband or his relatives. The cruelty could also be for failing to meet the unlawful demands of property or valuable security. Cruelty could refer to the conduct of a husband or in-laws that is likely to drive a woman to commit suicide or cause grave injury to herself.
Earlier, the Supreme Court, in a landmark order, had said that a girlfriend cannot be treated as a "relative'' in a 498 A case. The apex court had held that a concubine or a mistress cannot be charged under Section 498A. By no stretch of imagination can a girlfriend or even a concubine... be a relative. The word relative brings within its purview a status that can be conferred either by blood or marriage or adoption, the SC bench had remarked.
The only hope is that the ‘caught red-handed’ scenario does not later turn into ‘ no evidence found’ and the judges get reinstated. They are only suspended pending an inquiry, not really dismissed permanently!
Aug 26, 2010, 12.59am IST
HYDERABAD: Five judges belonging to the state's subordinate judiciary were suspended by the AP High Court on Wednesday for allegedly copying while writing their LLM examinations at the Arts College of Kakatiya University in Warangal on Tuesday.
The judges were doing this course under distance mode from Kakatiya University as the degree would help them gain some increments in their careers.
Those placed under suspension include K Ajitsimha Rao, senior civil judge, Ranga Reddy district, M Kistappa, principal senior civil judge, Anantapur, P Vijayendar Reddy, second additional district judge, Ranga Reddy district, M Srinivasachary, senior civil judge in Bapatla of Guntur district and Hanumantha Rao, the additional junior civil judge in Warangal.
They were allegedly caught red-handed in the act of copying on Tuesday by the authorities and upon receipt of this information, the HC suspended them from service pending an inquiry. The HC would soon launch disciplinary proceedings against all these judicial officers, sources said.
Still believe in the white lie that Indian judiciary is highly respected in the world? By whom? Indian judiciary itself!
Aug 25, 2010
NEW DELHI: The two sons of former chief justice of India Y K Sabharwal, who are being probed for their previous business deals, suddenly came to buy a Rs 122 crore property in Lutyens' Delhi four months ago, thanks to a series of controversial orders passed by the Delhi high court.
Chetan and Nitin Sabharwal, together with their partner Kabul Chawla, chief of real estate company BPTP, turned out to be the ultimate beneficiaries of high court orders passed since 2006 in connection with the auction of the 2.70-acre property at 7 Sikandra Road.
An appeal challenging the April 2010 sale deed revealed that the three partners had not participated in an auction in September 2006 on which a two-judge bench declared Triveni Infrastructure the highest bidder. Triveni was required to pay 25% of its bid amount, Rs 117 crore, within a week and the balance within three weeks thereafter, subject to the condition of the property being converted from leasehold to freehold.
But Triveni became liable to pay the 75% component only in February 2009 as it had taken so long for the property to be converted to freehold. It was then that a succession of single-judge orders, in breach of the schedule laid down by the larger bench, resulted in the payment being finally made, with a Rs 5 crore penalty, in April 2010, that too by the two Sabharwals and Chawla although they had no formal stake in Triveni.
The appeal being heard by a special bench headed by Justice A K Sikri shed light on the various ways in which the 2006 order had been bypassed, particularly by Justice Manmohan Singh, leading to a windfall for the Sabharwal brothers and Chawla:
* When the owners of the property filed a contempt application against Triveni for its failure to pay the balance in February 2009, Justice Manmohan Singh gave more time to the defaulter directing that it would have to pay Rs 3 crore by July-end and Rs 85 crore by October-end. Later, he extended the time further to December-end with a penalty of Rs 5 crore.
* The repeated extension of the deadline by Justice Manmohan Singh was contrary to the division bench's direction that if the highest bidder failed to make the payments on time, the property would have to be sold to the next highest bidder, Prime Commercial.
* In June 2009, Justice Manmohan Singh allowed a four-day old company, Angle Infrastructure, to come in place of Triveni for paying the balance and to take over the property. The owners of the property appealed against this order as it had been passed without any notice to them.
* A week before the expiry of the December 2009 deadline, Justice Manmohan Singh gave a fresh extension to Angle, this time by five months. He also granted Angle's request to introduce the condition that it would be required to pay the balance only when the owners were in a position to deliver immediate possession of the property. Most of the owners challenged this order, again because it had been passed without any notice to them.
* A month before the expiry of the May 2010 deadline, Triveni and Angle filed a joint application requesting that the balance be allowed to be paid by the Sabharwals and Chawla and that the property be registered in their names. Since the Sabharwal brothers and Chawla appeared in the court with demand drafts of the balance amount, Justice Rajiv Shakdher directed the owners on April 20 to execute the sale deed within two days.
That is how the Sabharwal brothers and Chawla acquired the property from an auction in which they had not participated at all. The appeal filed subsequently by the second highest bidder, Prime, challenged the manner in which the court had granted undue concessions to Triveni and deprived it (Prime) of its entitlement under the auction terms to buy out the property. Seeking a fresh auction of the Sikandra Road property, Prime offered to pay Rs 150 crore in keeping with the appreciation of the property value in these four years.
The real estate business partnership between the Sabharwal brothers and Chawla has been the subject of income tax probe following allegations that they had unduly benefited from the 2006 sealing drive against commercial properties in residential areas of Delhi launched by the then CJI, Justice Y K Sabharwal.
This speech by a Supreme Court judge merits point by point rebuttal, to let judiciary know what is wrong.
http://www.thehindu.com/news/states/kerala/article496951.ece
Cyriac Joseph, judge of the Supreme Court of India, on Friday came down heavily on the “unfair criticism” levelled against the judiciary and wondered why cultural leaders and institutions such as the Bar Association were silent on the issue.
Comments: Cultural leaders? … that’s a debate on its own. In India, there are religious gurus, political leaders, film stars, cricket leaders, some intellectual ‘leaders’ who debate with one another mostly or pat each other on the back. About Bar association: I bet they are lot more busy handling things like agitations or rowdyism by lawyers in court premises, or by one lawyers’ group against another, to be able to worry about such finer things!
Delivering the first K.K. Mathew Memorial Law Lecture series on the ‘Role of Judiciary in Democratic India,' organised as part of the centenary celebrations of the Kottayam Bar Association here, Mr. Joseph said the “abuse and intemperate outbursts” from any quarters were only a display of “ignorance of the constitutional provisions” as also a mark of “lack of culture.”
The people of India as represented by the Constituent Assembly had given shape to the Constitution and had “entrusted the judiciary with the responsibility of upholding the Constitution, constitutional values and constitutional institutions. Thus the people of India, through the Constituent Assembly, had assigned the role of a watchdog and corrective force for the judiciary in its functioning so that parliamentary democracy could flourish,” he said.
Comment: Public is tired of hearing the same old lectures given from a pulpit. With more than 3 crore pending cases, what justice and constitution are we talking about? Does not constitution say that speedy justice is a right of citizens?
“Judges think, speak and act in accordance with the provisions of the Constitution and cannot act like bull in a china shop,” Mr. Joseph said and added that whatever powers the judges have are derived from the Constitution. “They are not an unwanted, unauthorised group of people who wield self-acquired powers unaccounted for,” he said
Stating that unfair criticism of the judiciary would undermine democracy and the rule of law in the country, Mr. Joseph said India was ranked high internationally on account of its vibrant democracy which ensured elections every five years and the presence of an independent judiciary. “Independent judiciary is the hallmark of Indian democracy,” he said and added that the decision not to have an elected judiciary was a principled decision of the Constituent Assembly. “This does not make them less authentic,” he said and added that they are appointed on the basis of well laid out rules and guidelines.
Comment: This seems another attempt to stifle dissent against collegium based appointments in Supreme Court. When even a high court judge like Justice Shylendra Kumar raises voice, the SC is quite eager to shut him down with a judge having “tears in his eyes”. Of course they don’t have tears in eyes when a so called Chief Justice of Karnataka high court is barred from judicial functions by the lawyers themselves! After all, on paper he is Chief justice, and that is according to constitution so it must be all hunky dory!
“Judgments were not above criticism and any judgment could be subject to constructive criticism at an academic and intellectual level,” he said and stressed that judges who passed judgments that one does not agree with cannot be subjected to unfair criticism, abuse and ridicule. The Constitution provides for revision of judgments and the aggrieved parties should take recourse to such avenues, he said.
Comment: Except for the practical fact that taking recourse to revision or appeal is practicable for only well-heeled, powerful people.
“Unlike in a game of football, there is no provision to show the Red Card, though some believe that the provision for Contempt of Court was one such stipulation. “But, I fear even this would become ineffective if people are ready to go to jails,” he quipped.
Comment: So it is clear that there is so much widespread opposition to judiciary that even if contempt of court was used against public, the already struggling business in courts will grind to a halt!
Describing the late Justice K K Mathew, former judge of the Supreme Court of India, as a “saint among judges,” Mr. Joseph said he considered K.K. Mathew as the greatest jurist produced by Kerala.
K P Presanna Kumar, District and Sessions judge, presided. Senior lawyer and former Minister M P Govindan Nair; senior lawyer V.K. Satyavan Nair; George Boban, president of Kottayam Bar Association; and others spoke.
The interesting part of news is that the official of Jindal Steel and Power claim that they had given a shop to Agrawal’s son to dissuade him from raising environmental issues. So they are willing to engage in bribery if it serves their corporate interests?
The threat to kill company official makes it even more incredible? An activist threatening to kill an official of a large, powerful company? Makes sense to anyone?
…
…
The police complaint has shocked environmentalists. "This is exactly the tactic American Corporations have used to browbeat environmental activists," said Sunita Narain, Director, Centre for Science and Environment. She said this reminded her of SLAPP or Strategic Lawsuits Against Public Participation used by companies in America "to shut up individuals who were raising issues of social and environmental concern".
"Ramesh Agrawal of Jan Chetana is well known to the environmental and human rights fraternity. He has been raising issues related to not just a single corporation but several agencies on a very systematic basis," said Kanchi Kohli of Kalpavriksha Environmental Action Group.
Agrawal has a long series of achievements to his credit. In 2009, a PIL filed by him in Delhi High Court resulted in a major amendment to the rules governing environmental clearance. The court made it mandatory for companies to publish their full environmental clearance order in two local newspapers to enable the affected people to access the order and challenge the clearance if need be.
Ritwick Dutta, well known environmental lawyer, who has represented Agrawal in several public interest cases, asked,
"Why has the company filed an FIR against Agrawal after MoEF acted against them? Why did it not go after him earlier?"
When asked why, Sanjeev Chauhan said, "We discussed the matter within the management. We were waiting for the right time". He added that the company "will definitely prove the allegations in court".
Environmentalists say proving allegations against Agrawal will not disprove allegations against the company.
"The Ministry did not rely on Agrawal's word. Its team did due diligence and found Jindal Power had clearly broken the rules," says Narain.
One of the major problems in Indian courts is the ease with which cases can be filed, the ease with which they get adjourned, and the relative difficulty with which costs or fines are imposed on frivolous or false litigation. If judiciary needs to restore faith, they will need to impose heavy fines on frivolous litigants and dilatory tactics. Else judiciary will remain a relief-giving mechanism who no one fears!
http://expressbuzz.com/cities/bangalore/hc-blow-to-governor%E2%80%99s-office/178865.html
Rs 1 lakh fine for delaying hearing
THE High Court imposed a fine of Rs 1 lakh on a petitioner for not pursuing the petition it had filed in 1999.
Justice DV Shylendra Kumar imposed the fine on Electronics Research Limited, which had challenged the custom duty of Rs 3.88 crore, citing that the Customs department had levied additional customs duty on it. The second additional city civil court had rejected the application, after which the petitioner had moved the High Court.
When the judge called the petitioner’s advocate for hearing, the junior advocate sought an adjournment.
The judge refused to give the adjournment and imposed the fine.
A bus conductor in UP was dismissed from service, for not remitting money to government for 25 passengers. Supreme court has upheld his dismissal from service.
Telecom minister Raja was involved in scam of 2G spectrum auction which resulted in loss of thousands of crores to government.
The message seems to be that one should be a minister, or judge in higher courts, to be able to escape all punishment and get immunity from charges of corruption. A high court judge need not worry about 15 lakh of cash kept at doorstep, but a bus conductor must worry about misappropriation of funds! These are the high standards judiciary wants to preach.
http://publication.samachar.com/pub_article.php?id=9200357&nextids=9200357
The apex court gave the judgement while upholding the dismissal of a bus conductor Suresh Chandra Sharma of the UP State Road Transport Corporation. Sharma was dismissed from service by the Corporation after a departmental inquiry held him guilty of collecting fares from about 25 passengers but not remitting them to the official exchequer.
The Uttaranchal High Court, however, had quashed the dismissal on the ground that the inquiry was vitiated as the authorities did not examine the passengers and ordered Sharma's reinstatement, but without any back wages.
Aggrieved by the order, both the corporation and the employee filed appeals in the apex court.
Upholding the Corporation's appeal, the apex court citing its 1996 judgement in the Municipal Committee, Bahadurgarh Vs. Krishnan Bihari case said, "In cases involving corruption - there cannot be any other punishment than dismissal.
"Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant."
The apex court further cited the Vinod Kumar Vs UPSRTC case (2008) that "the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption/misappropriation, the only punishment is dismissal."
The bench said that in a domestic inquiry, complicated principles and procedures laid down in the Code of Civil Procedure and the Indian Evidence Act need not be strictly adhered to.
"The only right of a delinquent employee is that he must be informed as to what are the charges against him and he must be given full opportunity to defend himself on the said charges.
"More so, the High Court is under an obligation to give not only the reasons but cogent reasons while reversing the findings of fact recorded by a domestic tribunal. In case the judgment and order of the High Court is found not duly supported by reasons, the judgment itself stands vitiated," the apex court added.
Justice Shylendra Kumar of Karnataka HC recently posted a new entry on his blog as given below.
http://sites.google.com/site/justdvskumar/netizens-citizens-vii-22-05-2010
What was a new revelation was about the extent of funds available (Rs 13 Crore) to judiciary at their discretion, under aegis of Karnataka State Legal Services Authority, and the disclosure by Justice Kumar that he himself had to wait for 3-4 months to get information related to certain expenditures under category of ‘hospitality expenditures’ from the Karnataka high court registry!
Here is information about what Legal Services Authority is all about from their website here: http://www.kslsa.kar.nic.in/aims_objectives.htm
The Legal Services Act 1987 is basically aimed to provide free and competent legal Service to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.
Creating Legal awareness, Legal Aid and Settlement of disputes through amicable settlement are the main functions of the Authority.
Needless to say, it is an authority with mandate of delivering effective justice, and esp to help poor people who may not be able to afford lawyers.
Here are the relevant part of Justice Kumar’s blog post with important points in bold:
Recently, I heard that there were some malpractices, particularly, some illegalities having taken place in the matter of expenditure incurred by the High Court under the head ‘hospitality expenditure’, more so, during the stewardship of Justice P D Dinakaran as Chief Justice of the Karnataka High Court.
Being a little disturbed with such development, I had sought for some factual information from the registry and the information which I received has not put me at ease, but on the other hand has put me to great uneasiness and anxiety, particularly about the way and the direction which our High Court is heading.
I am placing the particulars of expenditure incurred as furnished by the registry for the information and perusal of the general public, an information which is otherwise available to you all under the Right to Information Act, and to form your own opinion and of course to react and respond suitably.
Under our constitutional scheme, judiciary does not have financial independence and the expenses in the judiciary is also part of the budgetary proposal and being voted by the State legislatures and the Union in the Parliament and therefore to that extent judiciary was blissfully kept independent of any financial responsibilities and the concomitant accountability with regard to expenses.
While that is the scheme under our Constitution, in recent times, with all sorts of additional responsibilities having sprouted on the courts, particularly, at the level of the High Courts and the Supreme Court and the High Courts and the Supreme Court getting more and more active on the administrative side, have been privy to considerable extent of State funds and whom the amount is being spent at the sole discretion of the Members of the Judiciary.
The checks and balances which are available under the Constitutional scheme and the statutory scheme in respect of any State expenditure, particularly, the scrutiny by the Comptroller and Auditor General of India under Article 148 of the Constitution of India is not fully or strictly applied in respect of expenditure incurred by the Judiciary in respect of funds which are available at the disposal of the Judiciary wherein the discretion of the Chief Justices matters. The State making available vast funds as part of the services made available to the general public under the Karnataka State Legal Services Authorities Rules, 1996 and being at the sole discretion of the Executive Chairman who is a Member of the Judiciary and Judge in the High Court, while has given considerable financial independence and capability to the Judge heading this Authority, the manner of utilization/application of such large amount has come in for criticism and over a period of time, the public opinion is that Judges are most ill suited to occupy the position of a Executive Chairman of the Legal Services Authority and it should be looked after by other persons who do not have the onerous judicial responsibilities to discharge.
Well, opinions may differ, but the fact remains that Judges becoming privy to large or vast amounts has not been a healthy trend if one should look at the developments during the past two decades and it certainly calls for a debate, a rethinking and suitable changes if so felt and warranted.
I learnt that Karnataka State Legal Services Authority had received not less than Rupees Thirteen Crores for its annual expenses during the year 2009-10 and I was not very happy with the manner of the funds allocated to expenditure of this Authority and I had called for information about the same when I was serving at the Circuit Bench of the High Court at Gulbarga during November-December 2009.
It took more than three to four months for the Member Secretary of the Karnataka State Legal Services Authority to part with this information even to a Judge of the High Court and it is only with some pressure and threats I was able to get the information. This again is not a very healthy development, particularly, if persons who are entrusted with public funds are asked for accounting the same, it should be available at a minute’s notice and at fingertips, and not furnished after three months like some Judges, declaring the particulars of their assets and liabilities!.
This was bound to happen… The image of judiciary has taken a severe beating in last few years. Now even Supreme Court is concerned that at least judges don’t throw mud at their own brethren. It is difficult enough when public is doing it! News below:
http://beta.thehindu.com/news/national/article440114.ece
The Supreme Court has cautioned the High Courts against using intemperate language and passing castigating strictures on judges of the lower judiciary. For, doing so would diminish the image of judiciary in the eyes of the public.
A vacation Bench of Justices G.S. Singhvi and C.K. Prasad, quoting earlier judgments, stressed the need for the High Courts adopting the utmost judicial restraint against using strong language as in such matters the judicial officer concerned had no remedy in law to vindicate his position.
The Bench allowed an appeal filed by a senior judicial officer against certain observations made by the Andhra Pradesh High Court. The Bench expunged them, holding that these remarks were bound to adversely affect the appellant's image in the eyes of the public and his credibility as a judicial officer, and would also affect his career.
As Principal District Judge, Kadapa, the appellant granted a temporary injunction in favour of plaintiffs in a suit and restrained the defendants from interfering with the plaint schedule property.
On an appeal by the defendants, a Division Bench of the High Court set aside the order and made scathing criticism of the appellant as a judicial officer, and recorded highly disparaging remarks.
Allowing the appeal by the judicial officer for expunction of the remarks, the Supreme Court said: “The judges in the higher courts have also a duty to ensure judicial discipline and respect for the judiciary from all concerned. The respect for the judiciary is not enhanced when judges at the lower level are criticised intemperately and castigated publicly. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary than when the judges of the higher courts publicly express lack of faith in the subordinate judges for one reason or the other.”
It said: “The Division Bench of the High Court may be fully justified in setting aside the order of injunction, but there was absolutely no justification for its making highly disparaging remarks against the appellant as a judicial officer, casting doubts on his ability to decide the cases objectively. The use of the words ‘out of sheer arrogance and disrespect to the lawful order' and the expression ‘judicial authoritarianism' show that the Division Bench ignored the words of caution administered by this court in several judgments.”
http://www.tribuneindia.com/2010/20100523/main6.htm
Chandigarh, May 22
The Punjab and Haryana High Court has as many as 16 Judges with their kith and kin practising in the same court. The Chief Justice of the Punjab and Haryana High Court has already forwarded their list to the Union Ministry of Law and Justice.
The list was sent in response to a communication received by the high court from the ministry. In the beginning of this year, the ministry had asked the high courts across the country to identify and furnish the list of all such judges who have their kith and kin practising in the same court.
Available information suggests that some of the judges here not only have their sons, daughters but also their siblings and other relations like nephews and brothers-in-law practising in the same court. At least four judges have their relatives working in the office of the Punjab and Haryana advocates-general office. Some other judges have relatives appearing before the Bench in the same court.
The list forwarded by the high court mentions the names of Justice Adarsh Kumar Goel, Justice Ashutosh Mohunta, Justice M.M. Kumar, Justice S.K. Mittal, Justice Hemant Gupta, Justice V.K. Sharma, Justice TPS Mann, Justice Mahesh Grover, Justice S.D Anand, Justice K.C Puri, Justice K.S. Ahluwalia, Justice Sabina, Justice Jora Singh, Justice M.S. Sullar, Justice Gurdev Singh and Justice Harbans Lal.
The issue again gained momentum only recently after Union Law Minister Veerappa Moily told The Tribune in an exclusive interview that the Law Ministry was asking the judges to give an undertaking at the time of their elevation that they would not function in a court where their relatives were practising.
Moily’s assertion had come in the presence of Attorney-General Goolam E. Vahanvati, Additional Solicitor-General Mohan Jain and Haryana Chief Minister Bhupinder Singh Hooda at a ceremony to felicitate the law minister.
The Law Commission has discussed the issue in its 230th report as well. The commission has made it clear that it is against the policy of transferring Chief Justices; and he should rather be from the same high court. But while making appointment of judges, advocates with kith and kin practising in a high court, should not be posted in the same high court. This would eliminate “uncle judges”, it said.The Punjab and Haryana High Court’s former chief justice, Justice B. K. Roy, too had earlier issued an administrative order barring a group of 10-12 judges from hearing any case argued by their relatives. In his order, Justice Roy had said: “It was generally believed that A, B, C and D (all judges) constituted a mutual cooperative society in the sense it was believed that each of the four judges (A, B, C and D) would protect the sons of the three other judges.” The order had led to widespread protests.
List of judges
Justice Adarsh Kumar Goel
Justice Ashutosh Mohunta
Justice M.M. Kumar
Justice S.K. Mittal
Justice Hemant Gupta
Justice V.K. Sharma
Justice TPS Mann
Justice Mahesh Grover
Justice S.D Anand
Justice K.C Puri
Justice K.S. Ahluwalia
Justice Sabina
Justice Jora Singh
Justice M.S. Sullar
Justice Gurdev Singh
Justice Harbans Lal
Following news shows how lax are judiciary’s standards in checking the antecedents of one of their own.
A man who was declared an absconder by a court in Indore worked as a judge in a superior court in the same city for years before his past caught up with him.
The Madhya Pradesh High Court has suspended Additional District and Sessions Judge Narendra Kumar Jain for concealing the matter.
As a student of Christian College in Indore, Jain, along with four friends, was involved in a brawl with a hotel owner and his son in 1983. The owner, whose nasal bone was broken, lodged a police complaint that led to the arrest of Jain and his friends.
Jain was released on bail and appeared in court once in 1985. He was declared an absconder by the court when he did not appear later despite repeated summons.
Jain cleared an examination meant for judicial officers in 1994 but suppressed the fact that he was involved in a criminal case and was facing trial.
Such is the secrecy and protection afforded to powerful vested interests who control the judiciary from behind, that no case of judicial corruption can ever be investigated thoroughly and properly. Read news below:
A Gurumurthy, the judge in whose court a scam involving court officials, banks and financial institutions to the tune of hundreds of crores of rupees was unearthed, has been transferred.
Though transfers are routine, with four notifications on April 24 transferring District Judges, Fast Track Court Judges, Senior Civil Judges and Civil Judges, this transfer comes just three weeks after a departmental inquiry under the judge was initiated.
Gurumurthy, the XIV Additional Chief Metropolitan Magistrate (Mayo Hall), is one of the 33 judges of the ‘Senior Civil Judges’ cadre who has been transferred, according to the notification (no GOB(I).4(2)/2010) issued by the Registrar General of the High Court.
The notification says he will take charge as the Senior Civil Judge and JMFC, Ramdurg, Belgaum district, from May 24.
PROBE CURTAILED
It is feared that with the transfer of the judge, the departmental inquiry would suffer. It is learnt nearly a month after the inquiry was initiated in the first week of April, Gurumurthy submitted his report. But the same was sent back to him with directions for further probe. Now with less than two weeks for his transfer, Gurumurthy’s report may not be complete as the XIV ACMM has more than one lakh cases before it, according to sources.
Registrar General of the High Court, R B Budihal refused to talk about the issue. His office replied he would not entertain any journalist seeking information on the issue.
Bangalore Mirror had, on May 4, reported how thousands of citizens were cheated using fake seals of judges’ signatures and fake court papers for serving non-bailable warrants (NBW) on them.
Some 70,000 fake NBWs were said to have been issued in the last three years to people across the country.
Three officials of the court - Tulasamma, the sirastedar, Balasubramani, the bench clerk, and Narasaiah, a case worker, who allegedly ran a ‘parallel court’ in collusion with banks and their advocates, were suspended.
Banks and court staff colluded to issue NBWs to borrowers whose cheques had bounced. After these fake NBWs were issued, the banks, either with the help of police or musclemen, forced the debtors to pay up the entire loan amount.
As per the law, no sworn statement of any bank manager has been recorded. The fraud also involved sending fake NBWs to people who were not under the jurisdiction of the court, including Kolkata, Mumbai, Allahabad and Bihar.
Maybe it is coincidence, but two days before retirement of CJI, the office of CJI has been agreed to be a Public Authority under RTI Act. See recent decision by CIC below. Also the important points are made bold below:
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/000279 dated 14.3.2009
Right to Information Act 2005 – Section 19
Appellant - Shri Nemi Chand Jain
Respondent - Supreme Court of India (SCI)
Decision announced: 10.5.2010
Facts:
Shri Nemi Chand Jain of Jaipur, Rajasthan applied to the Registrar,
Supreme Court of India on 27.11.08 seeking the following information:
“Copy of complete file relating to complaint dated 2.4.2007 against
Justice Shri Shiv Kumar Sharma, Rajasthan High Court, Jaipur.”
To this Shri Nemi Chand Jain received a response from CPIO Shri Raj Pal
Arora, Addl. Registrar dated 18.12.08 informing him as follows:
“I write to inform you that the complaints against Hon’ble Judges of
the High Court or Supreme Court are not handled by the Registry.
Therefore, the information is not held by or under the control of the
Registry and the CPIO, Supreme Court of India cannot accede to
your request.”
Upon this, Appellate Authority Shri M. P. Bhadran in his order of 17.1.09 in
appeal No. 2 of 2009 decided as follows:
“Since the Hon’ble CJI is not a Public Authority within the meaning
of Sec. 2(h) of the RTI Act the application cannot be transferred as
per Section 6(3) of the RTI Act as requested by the appellant. I find
that no error in the impugned order. There is no merit in this appeal
and it is only to be dismissed.”
Appellant Shri Jain has then moved his second appeal before us with the
following prayer:
“It is prayed that the impugned order dated 17.1.09 passed by
Learned Appellate Authority and order dated 18.12.2008
passed by Learned CPIO may kindly be quashed and set
aside, and the Learned CPIO may be directed to transfer the
application to the appropriate Authority with whom the
information sought by Appellant is available.”
This prayer is grounded on the following contentions:
“Because the Hon’ble CJI is Public Authority within the meaning of
Section 2(b) of the RTI Act and hence the impugned order is liable
to the set aside.”
The appeal was heard by videoconference with Jaipur on 10.5.2010. The
following are present:
Appellant
Shri Nemi Chand Jain
Respondents
1. Shri Raj Pal Arora, CPIO / Addl. Registrar
2. Ms. Asha Ahuja, RTI Branch Officer, SCI
3. Shri Devadatt Kamat, Advocate
Shri Devadatt Kamat, Learned Counsel for the Supreme Court presented
his vakalatnama, which has been taken on record. Shri Kamat also submitted
that subsequent to the decision in the present case, it has been agreed by the
Supreme Court of India that the Office of Chief Justice of India is indeed a public authority within the meaning of sec. 2(h) of the RTI Act. In light of this, the
information sought by appellant Shri Nemi Chand Jain was that the complaint of
2.4.07 against Justice Shri Shiv Kumar Sharma of the Rajasthan High Court,
Jaipur had in fact been received, seen by the Chief Justice of India and lodged.
There is no file on the complaint. Upon this, appellant Shri Nemi Chand Jain
submitted that he had no further information to seek.
DECISION NOTICE
It is now established and agreed to by all parties that the office of Chief
Justice of India is a Public Authority within the meaning of Sec. 2(h) of the RTI Act, as part of the Supreme Court of India. The order of Appellate Authority, Shri
M. P. Bhadran on appeal No. 2 of 2009 dated 17.1.09 is, therefore, set aside.
Learned Counsel for the Supreme Court of India has also provided the
information sought by appellant Shri Nemi Chand Jain, in the hearing. The
appeal is thus allowed. There will be no costs.
Announced in the hearing. Notice of this decision be given free of cost to
the parties.
(Wajahat Habibullah)
Chief Information Commissioner
10.5.2010
Authenticated true copy. Additional copies of orders shall be supplied against
application and payment of the charges, prescribed under the Act, to the CPIO
of this Commission.
(Pankaj K.P. Shreyaskar)
Joint Registrar
10.5.2010
I will take excerpt of news below and refute the points made by governor of AP.
http://www.deccanchronicle.com/hyderabad/governor-says-rti-used-blackmail-tool-655
Hyderabad, May 10: The Governor, Mr ESL Narasimhan, condemned the misuse of the Right to Information (RTI) Act by some people, who have “vested interests”.
He said the RTI Act has become a tool to “blackmail” the government and its machinery.
“I can say with complete authority that the RTI Act is used for blackmailing people. If that was not the case, why do the same group of people apply for the RTI Act so often,” he asked while speaking at the Administrative Staff College of India, after inaugurating the Forum for Good Governance.
Ok. The logic is that if some people file RTI so often, they must be using it for blackmail! Well, governor ji, maybe you forget but the 86 year old ex-governor of Andhra Pradesh had left his office few months back after some pictures of his romps with young women were shown on TV. Such was the secrecy after that event that the media was stopped by High court order to show any further footage etc of the episode. When government along with judiciary is hell-bent on stopping people from knowing what is going on within government, RTI is the only forum available for people to find out the truth behind government’s inner workings.
Citing his own experiences on the misuse of the Act, Mr Narasimhan said: “I receive RTI applications that seek information on the dinner I hosted for my guests. They ask me to disclose the guest-list, the menu and the expenditure incurred for the purpose.” He said is not spared even when he visits temples. “The other day, I went to a temple. A person filed an RTI seeking information about whether my visit to the temple was an official visit? If so, who did I meet and what was the discussion? I replied that it was not an official visit. I met the Almighty at the temple and had long deliberations with him. I also prayed to him to please give good sense to such people,” he remarked.
You may think it is irritating to get RTIs about your dinners. But do not forget that people have very little faith in about people in government regarding use of taxpayer funds at their disposal. Even an ex-minister Shashi Tharoor was found to be staying in 5-star hotels instead of finding a more reasonable accommodation given the austerity drive of government in place at the time. If government was more transparent of less cruel with public money, people will have no desire to waste their time in filing RTIs asking about dinners hosted by you. That trust has yet to be built by government representatives.
The judges seem to be toothless in face of misuse of law! Such misuse of laws is the real reason behind 3.1 crore pending cases in Indian courts. When there is incentive to misuse the law, and no disincentive against it; more number of cases is exactly the result. While truly affected people fear going to courts, those who want to misuse the law are feted by lawyers, and indirectly by judiciary!
Married sister can’t be booked under DV Act
New Delhi, May 10, 2010
Married sisters of a man, living separately from the joint family, cannot be prosecuted under the Domestic Violence (DV) Act on a complaint of his wife, a Delhi court has held.
Additional Sessions Judge Kamini Lau expressed concern over “misuse” of special laws by making women parties in the petitions just because they happened to be sisters of the man.
“Married sisters residing in their own matrimonial houses are not a part of the shared household or joint family, as contemplated under the Domestic Violence Act,” the court said.
It, however, clarified that the married sisters were not denied the rights, which could be claimed from their parental home.
The observations were made by the court while dismissing the plea of a woman who challenged an order of the Metropolitan Magistrate, refusing to summon married sisters of her estranged husband in the case under the Domestic Violence Act.
The following statements by outgoing Chief Justice of India will not have many believers, except maybe in Supreme Court itself! The last sentence is really bothering, if people do not understand working of judiciary, is it really a good thing? Won’t it be good to have judiciary under ambit of RTI -- I know it already is except Supreme Court, but just try filing an RTI on any court and see for yourself.
http://www.indianexpress.com/news/corruption-in-judiciary-is-minimal-not-very-serious-cji/616901/
Outgoing Chief Justice K G Balakrishnan says corruption in judiciary was a cause of concern but the situation was "not very serious" and that it was actually "miniscule" considering the number of cases and judges.
"Corruption will always bother anyone. But considering the number of cases and judges, it is actually miniscule.
Situation is not very serious," the CJI said in an interview to CNN-IBN on Monday on the eve of demitting office after a tenure of a little over three years.
However, the CJI appeared to be haunted by Justice Dinakaran issue and expressed his disappointment over the motive even imputed to him on this score while maintaining that the apex court collegium/ judges work systematically in harmony with the norms.
"I felt sorry that some motives were attached to me as well. We work systematically following all the norms," he said.
On being asked whether the credibility of judges did not get erosioned as a number of them accept government posts after their retirement, he said it was the government which wants us there.
"There are so many tribunals that have to be manned by retired judges of the Supreme Court. There is TDSAT etc.
People think that SC judges may favour the government to get these posts, but now actually its other way. The government wants us there," the CJI said.
The CJI, who recently gave verdict on high-voltage Ambani brothers gas dispute, said that he never felt any pressure while adjudicating any case.
"I have never felt any pressure in any case that I have heard," he said adding that "people do not understand the working of judiciary. No politician will like to come and meet a judge. He will be in trouble, suppose the judge expose him, his political career can be in danger."
It is not only the Chief Justice of India who wants his own office out of purview of RTI. Even some of high courts are quite uncooperative about honouring RTI.
Following news story sums it all. When it comes to implementation of right to information act (RTI), the courts are totally clueless and unhelpful to applicants. The fact that this happened with a high court bench shows the high-handedness and aloofness which has become a characteristic of Indian judiciary.
http://beta.thehindu.com/news/cities/Madurai/article391264.ece
M. Shanthi of Karur had filed an RTI application on February 25 seeking details of a civil miscellaneous appeal filed by an insurance company in 2001 against a judgment passed by a lower court earlier. Stating that the case was not listed for hearing for a long time, she sought to know whether it was still pending or had been disposed of.
N. Vijayakumar, Deputy Registrar (Administration) of the Bench and also Assistant Public Information Officer, replied to the application on March 3. Instead of giving a direct answer to the question, he asked the woman applicant to approach her advocate for obtaining the required information.
Not satisfied with the reply, Ms. Shanthi filed an appeal, under the RTI Act, before the Registrar (Administration) of the High Court Bench on March 13, 2010.
Subsequently, she received another letter from R. Susheela Devi, Deputy Registrar (RTI) dated March 31 asking her to come to the Bench during office hours at the earliest for verification of her residential address and signature.
The issue gains significance in view of the fact that there is no provision in the RTI Act which entitles a public information officer to ask an applicant to prove his/her identity. Section 6(2) of the Act categorically states a person seeking information need not give any personal details except those that were required for contacting him.
Section 6(2) of RTI Act, 2005 is given below:
(2) An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.
The only main requirement in RTI Act is that applicant be a citizen of India. Even an Indian living abroad can file an RTI through Indian embassy. But by asking the applicant to come personally to office, the RTI official of high court has shown either their incompetence, or their complete disregard for law of the land.
Bangalore Mirror has broken a story which shows how corruption is seeping right through Indian judiciary. The Provident Fund scam was involved with high court judges and a supreme court judge too. The case below involves court officials but not judges.
So there is taint of corruption in courts right from Supreme court to lower courts… corruption has become the great leveller in Indian judiciary.
Bangalore Mirror has exclusive details of the cheating committed on innocent citizens of India. A room full of some 70,000 fake Non-Bailable Warrants (NBW) is being scrutinised at the court.
Officials investigating the scam have found fake seals of judges’ signatures, and cooked-up court papers. The documents were found in the pending branch of the court complex.
A bank-court staff ring used these papers against clueless borrowers of ICICI Bank, Kotak Mahindra Bank Limited, Cholamandalam DBS Finance Limited, Reliance Capital and HDFC Bank, among others. The fraud was committed against borrowers whose cheques bounced.
When an EMI cheque bounces, the bank and its advocates get into the act by getting forged documents and NBWs out of the ‘parallel court’ operating at the court.
Then, the bank sends its musclemen or takes the help of the police to confront the ‘accused’ with fake warrants.
After threatening the debtor, they recover the entire loan amount, and not just the EMI.
This is against the procedure laid down under Section 138 of the Negotiable Instruments Act, 1881. No sworn statement of the bank manager is recorded nor is any sworn statement taken in any of these cases.
Another major fraud is that most of the accused are not in Bangalore. Many live in cities like Kolkata, Chennai, Hyderabad, Mumbai, Allahabad, and in remote corners of Jharkand and Bihar. The story unfolded after many such harassed customers complained to the court, sources said.
NO JURISDICTION
The law says a Bangalore court cannot have jurisdiction on an offence committed outside the city.
The truth is, none of these accused had even visited Bangalore before. So, there was no question of the XIV ACMM having jurisdiction over these people.
The scam has shaken the judiciary in Karnataka. One source told this journalist that an advocate had filed 30,000 such cases allegedly on behalf of Cholamandalam DBS Finance in the last six months. An advocate reportedly representing Kotak Mahindra Bank has filed around 10,000 fake cases in the last six months.
The preliminary inquiry has revealed that advocates representing many banks, in collusion with court staff, have created their fake stationery for preparing the orders.
These orders don't have the date of execution nor are the so-called signatures supported by dates. A closer look at the order sheets reveals that they have been faked.
XIV ACMM A Gurumurthy refused to meet the Bangalore Mirror team when we said we wanted to get details from him.
All this seems very nice and good on paper, but it has to be seen in practice why a cheque defaulter would not like to pay up to maximum 20% of principal amount, and delay the case till it reaches Supreme Court.
NEW DELHI: Delay in settling cheque bounce cases will now cost the defaulter dear, up to 20% of the cheque amount. The penalty for delayed settlement of the cheque amount, after conviction in the trial court, would rise steadily from 10% in district courts, 15% in high courts to a whopping 20% in the Supreme Court.
The SC on Monday took this radical step through a pioneering judgment which aims to curb the tendency among defaulters to sit over the amount tendered through a bounced cheque.
Saddled with 30 lakh cheque bounce cases, the SC accepted most of the suggestions offered by attorney general G E Vahanvati.
A Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and J M Panchal also laid down guidelines for early settlement in cheque dishonour cases under Section 138 of the Negotiable Instrument Act.
The judgment, authored by Chief Justice K G Balakrishnan, indicated that defaulters going for early settlement before the trial court would have to pay just the principal amount with applicable interest.
But if they approched the district court for settlement after being convicted by the trial court, they would have to pay 10% of the cheque amount to avoid going to jail. So if a chque amount is for Rs 1 lakh, then to compound the offence before the district court, the defaulter has to pay an additional Rs 10,000 to avoid going to jail.
Similarly, if the defaulter agrees for settlement and compounding of the offence at the HC stage, then he would have to pay 15% of the cheque amount. The amount so collected would be given to Legal Aid Authorities of the respective states which provide free legal assistance to poor litigants in various forums, the SC said.
This judgment will go a long way in reducing the pendency of over 30 lakh cheque bounce cases which have jammed the wheels of justice already slowed down by pendency of 2.7 crore cases. During the hearing of a Section 138 case between Damodar S Prabhu and Sayed Babalal, the Bench observed that there had been an enormous rush of cases after cheque bounce was made a penal offence in 1989, followed by the amendment in 2002 providing for summary trial for early resolution of the dispute.
The last line is the giveaway, there was enormous increase in cheque bounce cases AFTER it was made a penal offence in 1989. Normally, one would expect that a criminal penalty for an offence would deter people from committing that offence. It is clear that justice in India does not work the way it is supposed to be! There is a huge latent demand for justice, and it does not seem to be satisfied no matter how many new laws get created.
Only in India if a High court judge gets Rs 15 lakh cash delivered at door, the powers that be will look the other way! Now it seems the law ministry is siding with CPIO of Supreme Court on the matter of disclosure of information under RTI. If CJI was not enough in holding lid on happenings inside Supreme Court, now law ministry is backing him up as a spokesperson.
CPIO had earlier this month denied information to RTI applicant Abhishek Shukla regarding chief justice of India (CJI) KG Balakrishnan’s inputs on transferring Punjab and Haryana high court judge Nirmal Yadav to another HC, saying the matter was confidential.
Yadav is mired in a controversy related to the scam in which Rs15 lakh was recovered from outside the door of her official residence nearly 19 months ago.
On Sunday, the law ministry defended CPIO, saying the CJI input on Yadav was indeed confidential and could not be made public.
CPIO had told Shukla that his query, whether CBI approached CJI in connection with the scam, was “confidential and exempted from disclosure under section 8(1)(e) and (j) of the RTI Act”. “You have no right to access the said information,” CPIO said.The ministry, which has been working hard to introduce certain amendments in the RTI Act, which Congress president Sonia Gandhi has termed “landmark”, said the CJI input to law
minister Veerappa Moily on the issue was “in the nature of advice tendered by the cabinet” which is exempted from disclosure under the RTI Act.The ministry cited section 8(1)(i) of the Act in its defence. The section exempts “disclosure of cabinet papers, including records of deliberations of the council of ministers, secretaries and other officers”, provided “the decisions of the council of ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken and the matter is complete”.
Meanwhile, in a setback to the moves by a section in the government to put a lid on the scam, a special court in Chandigarh refused last Friday to accept the CBI plea for closing the case. Judge Darshan Singh asked CBI to probe the case further.
From news of 9th April:
http://timesofindia.indiatimes.com/india/Cabinet-clears-anti-torture-bill/articleshow/5776064.cms
Though enacting the law is a step towards ratification of the UN convention against other cruel, inhuman punishment and degrading treatment, and has been pending for some time now, the timing of the bill gave rise to a question or two at the Cabinet meeting.
The argument was clinched as the PM pointed to the need for a law that underscored India's respect for human rights even as the government had promised to bring to book those guilty of killing 76 security personnel in a ruthless ambush on Tuesday. Singh has been particular that a detailed law be enacted to define torture, both physical and mental, that would attract penal action.
The proposed law has been hanging fire as over the past year, it was first suggested by home ministry that some changes in IPC would suffice. It was then argued that changes in the Evidence Act would also be needed. As it was felt that no less than three-four laws would have to be altered, the PM went along with a new law being framed.
The prevention of torture law is intended to align Indian law with the UN convention and India is now only one of a handful of signatory nations not to do so. The ratification of the convention will enable provisions in the convention to be part of Indian law. Though some of these exist in Indian law, they do not define "torture" as closely as the convention does.
The last para gives the probably most important reason that this law is being pushed. India does not want to be seen living in a ‘brutal’ image when all other countries have well-defined laws against torture and police brutality. Recent beating and torture of a foreign journalist has not helped either the ‘clean image’ India wants to project to international community.
Mission Justice has made a presentation on corruption, lack of accountability, lack of transparency, and so on in high judiciary of the country. The presentation is a clear eye-opener for those who still have faith that all is well with High Courts and Supreme Court in India.
You can download and read the presentation here:
http://dl.dropbox.com/u/2371641/Judiciary/MJ-2010-04-judicial-accountability-0001.pps
I could not initially believe this news, but I read it in Deccan Herald also, so it must be true.
The Federation of Bar Association (FOBA) has submitted a memorandum to CM B S Yeddyurappa asking him to spare lawyers from wearing helmets during summer. FOBA president K S Subba Reddy claims advocates find it very difficult to wear helmets from March to June even though the helmet rule is in the interest of a two-wheeler driver’s safety.
He adds, “It is very difficult, particularly for women advocates who have to compulsorily wear black coat and gown to attend the court. They must drive with the coat and gown, besides wearing the helmet.” Wearing a helmet is excruciating when vehicles are caught in heavy traffic and move very slowly, he added
Ok… so they want exception from helmet rule which is made in interest of safety of public. Normally one should have the freedom to decide how they run their own lives, but such safety rules are made because there are social costs too if the rate of injuries and deaths are higher.
Will the lawyers waive off their rights to claim accident compensations too in case the injuries and death when not hearing a helmet?
More importantly, if the lawyers are feeling uncomfortable due to heavy coat/gown along with helmet; isn’t it better to jettison that black coat for the 3 summer months? Whoever devised the rule that lawyers must wear black coats did not take tropical conditions into account.
What is more logical and reasonable: stop wearing black coat, OR stop wearing helmet? I hope some reasonable man stands up and makes a law doing away with need of black coats for lawyers.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 913 of 2010
[Arising out of SLP (Crl.) No. 4010 of 2008]
S. Khushboo … Appellant
Versus
Kanniammal & Anr. ... Respondents
WITH
Criminal Appeal 914/2010 @SLP (Crl.) No. 6127 of 2008
Criminal Appeal 915/2010 @SLP (Crl.) No. 6257 of 2008
Criminal Appeal 916/2010 @SLP (Crl.) No. 6258 of 2008
Criminal Appeal 917/2010 @SLP (Crl.) No. 6259 of 2008
Criminal Appeal 918/2010 @SLP (Crl.) No. 7049 of 2008
Criminal Appeal 919/2010 @SLP (Crl.) No. 6264 of 2008
Criminal Appeal 920/2010 @SLP (Crl.) No. 6277 of 2008
Criminal Appeal 921/2010 @SLP (Crl.) No. 7052 of 2008
Criminal Appeal 922/2010 @SLP (Crl.) No. 7053 of 2008
Criminal Appeal 923/2010 @SLP (Crl.) No. 7050 of 2008
Criminal Appeal 924/2010 @SLP (Crl.) No. 7051 of 2008
Criminal Appeal 925/2010 @SLP (Crl.) No. 4761 of 2008
Criminal Appeal 926/2010 @SLP (Crl.) No. 4772 of 2008
Criminal Appeal 927/2010 @SLP (Crl.) No. 4767 of 2008
Criminal Appeal 928/2010 @SLP (Crl.) No. 4763 of 2008
Criminal Appeal 929/2010 @SLP (Crl.) No. 4765 of 2008
Criminal Appeal 930/2010 @SLP (Crl.) No. 4762 of 2008
Criminal Appeal 931/2010 @SLP (Crl.) No. 4764 of 2008
Criminal Appeal 932/2010 @SLP (Crl.) No. 4770 of 2008
Criminal Appeal 933/2010 @SLP (Crl.) No. 4769 of 2008
J U D G M E N T
Dr. B.S. CHAUHAN, J
1. Leave granted in all the cases.
2. The appellant is a well known actress who has approached
this Court to seek quashing of criminal proceedings pending
against her. As many as 23 Criminal Complaints were filed
against her, mostly in the State of Tamil Nadu, for the
offences contemplated under Sections 499, 500 and 505 of
the Indian Penal Code, 1860 [hereinafter ‘IPC’] and
Sections 4 and 6 of the Indecent Representation of Women
(Prohibition) Act, 1986 [hereinafter ‘Act 1986’]. The
trigger for the same were some remarks made by the
appellant in an interview to a leading news magazine and
later on the same issue was reported in a distorted manner
in another periodical. Faced with the predicament of
contesting the criminal proceedings instituted against her
in several locations, the appellant had approached the High
Court of Madras, praying for the quashing of these
proceedings through the exercise of its inherent power
under Section 482 of the Code of Criminal Procedure, 1973
[hereinafter ‘Cr.PC.’]. The High Court rejected her plea
vide impugned judgment and order dated 30.4.2008. At the
same time, in order to prevent the inconvenience of
litigating the same subject-matter in multiple locations
directed that all the cases instituted against the
appellant be consolidated and tried together by the Chief
Metropolitan Magistrate, Egmore (Chennai). Aggrieved by the
aforesaid judgment, the appellant approached this Court by
way of a batch of Special Leave Petitions.
3. Before addressing the legal aspects of the case before
us, it would be useful to examine the relevant facts. In
September 2005, ‘India Today’ a fortnightly news magazine
had conducted a survey on the subject of the sexual habits
of people residing in the bigger cities of India. One of
the issues discussed as part of this survey was the
increasing incidence of pre-marital sex. As a part of this
exercise, the magazine had gathered and published the views
expressed by several individuals from different segments of
society, including those of the appellant. The appellant
expressed her personal opinion wherein she had noted the
increasing incidence of pre-marital sex, especially in the
context of live-in relationships and called for the
societal acceptance of the same. However, appellant had
also qualified her remarks by observing that girls should
take adequate precautions to prevent unwanted pregnancies
and the transmission of venereal diseases. This can be
readily inferred from the statement which was published, a
rough translation of which is reproduced below:
“According to me, sex is not only concerned with
the body; but also concerned with the conscious.
I could not understand matters such as changing
boyfriends every week. When a girl is committed
to her boyfriend, she can tell her parents and
go out with him. When their daughter is having a
serious relationship, the parents should allow
the same. Our society should come out of the
thinking that at the time of the marriage, the
girls should be with virginity.
None of the educated men, will expect that the
girl whom they are marrying should be with
virginity. But when having sexual relationship
the girls should protect themselves from
conceiving and getting venereal diseases.”
These remarks were published alongside a survey, the
relevant extracts of which are stated below:
“Will you marry a person who had relationship
with others?
18% - Yes, 71% - No
Is it necessary to be a virgin till the time of
marriage?
65% - Yes, 26% - No
The remaining percentage of people said: Do not
know/Cannot say
82% women had given an opinion that a girl should
be a virgin at the time of marriage.”
4. Subsequently, ‘Dhina Thanthi’, a Tamil daily carried a
news item on 24.9.2005 which first quoted the appellant’s
statement published in ‘India Today’ and then opined that
it had created a sensation all over the State of Tamil
Nadu. This news item also reported a conversation between
the appellant and a correspondent from ‘Dhina Thanthi’,
wherein the appellant had purportedly defended her views in
the following manner (rough translation reproduced below):
“The persons who are protesting against my
interview, are talking about which culture? Is
there anyone who does not know about sex in Tamil
Nadu? Is there anyone who does not know about
AIDS? How many men and women do not have sex
before marriage?
Why are people saying that after the marriage the
husband and wife should be honest and faithful to
each other? One should have confidence in the
other, only to avoid the mistakes from being
committed. If the husband, without the knowledge
of the wife, or the wife, without the knowledge
of the husband, have sex with other persons, if a
disease is caused through that, the same will
affect both the persons. It will also affect the
children. Only because of this, they are saying
like that.”
However, soon after the publication of the above mentioned
news item, the appellant had sent a legal notice dated
2.10.2005 to the Editor of ‘Dhina Thanthi’, categorically
denying that she had made the statement quoted above. In
fact, the appellant had asked the publisher to withdraw the
news-item carried on 24.9.2005 and to publish her
objections prominently within three days of receipt of the
notice, failing which the appellant would be constrained to
take appropriate legal action against the newspaper.
5. As outlined above, the publication of these statements
in ‘India Today’ and ‘Dhina Thanthi’ drew criticism from
some quarters and several persons and organisations filed
criminal complaints against the appellant. For instance,
the complainant in the appeal arising out of SLP (Crl) No.
4010 of 2008 has stated that she is a married woman who is
the Treasurer of a District-level unit of the Pattali Makal
Katchi [hereinafter ‘PMK’], a political party, and is also
involved in social service. She had quoted some parts of
the statements published in ‘India Today’ and ‘Dhina
Thanthi’ to allege that the appellant’s interview had
brought great shame on her since it had suggested that
women of her profile had engaged in premarital sex. The
complainant further alleged that the appellant’s remarks
had caused mental harassment to a large section of women,
and in particular women from Tamil Nadu were being looked
down upon with disrespect and contempt.
6. In the appeal arising out of SLP (Crl.) 4764 of 2008,
the complainant is a male advocate who is a District
Secretary of the PMK for Salem District. In his complaint,
there is no direct reference to the news-item published in
‘Dhina Thanthi’ on 24.9.2005. Instead the complainant has
stated that he found second-hand accounts of the same to be
quite shocking since the appellant had questioned the need
for women to maintain their virginity or chastity. It was
alleged that these remarks were an abuse against the
dignity of the Tamil women and that they had grossly
affected and ruined the culture and morality of the people
of the State. It was further submitted that these
statements could persuade people to involve themselves in
unnatural crimes and that the appellant’s acts amounted to
commission of offences punishable under Sections 499, 500,
504, 505(1)(b) and 509 IPC read with Section 3 and 4 of
Act 1986. Similarly, in the appeal arising out of SLP
(Crl.) 6127 of 2008, the complainant is a lady advocate who
has been practicing in the Trichy District Courts for more
than 10 years. She has quoted some portions from the
statements published in ‘India Today’ and ‘Dhina Thanthi’
to submit that the appellant’s acts were punishable under
Sections 292, 500, 504, 505(1)(b) and (c), 505(2) and 509
IPC read with Section 6 of Act 1986.
7. Likewise, in the appeal arising out of SLP (Crl.) 6259
of 2008, the complainant has stated that she is a married
woman belonging to a reputed family and that she is serving
as the President of the District Magalir Association of the
PMK (in Thiruvarur) and rendering social service. In her
complaint, some parts of the appellant’s statements have
been quoted to allege that she had suffered great mental
agony and shame since it was suggested that all women in
Tamil Nadu had lost their virginity before marriage. In
this respect, the complainant has alleged that the
appellant had committed offences punishable under Sections
499, 500, 504, 505(1)(b) and 509 IPC read with Section 6
of Act 1986. It is noteworthy that in most of the other
cases filed in various districts of Tamil Nadu, the
complainants are functionaries of the PMK and similar
allegations have been levelled against the appellant. Oddly
enough, one of the complaints had even been filed in
Indore, Madhya Pradesh.
8. As mentioned earlier, the appellant approached the High
Court of Madras to seek quashing of all the criminal
proceedings instituted against her in this connection. In
its judgment dated 30.4.2008, the High Court refused to
quash the proceedings by exercising its inherent powers
under Section 482 Cr.PC, on the premise that the relevant
considerations in this case were questions of fact which
were best left to be determined by a trial judge. The High
Court noted that two basic questions were involved in the
case. Firstly, whether the appellant could claim any of the
recognised defences against the allegations of having
committed defamation, as contemplated by Section 499 IPC.
Secondly, whether the complainants could at all be
described as ‘aggrieved persons’ within the meaning of
Section 199 Cr.PC since that was linked to the question of
whether the complaints had been made in a bona fide manner.
The High Court thought it fit to leave both these questions
for consideration by a trial judge, and in a partial
reprieve to the appellant it was directed that all the
criminal proceedings pending against her be consolidated
and tried by the Chief Metropolitan Magistrate at Egmore,
Chennai. However, the High Court also proceeded to record
its own views regarding the contents of the appellant’s
statements and even made some strong observations
condemning the incidence of premarital sex and live-in
relationships.
9. In the proceedings before us, Ms. Pinki Anand, learned
counsel appearing for the appellant, has submitted that the
complainants (respondents in these appeals) were not
‘persons aggrieved’ within the meaning of Section 199(1)(b)
Cr.PC and hence they were not competent to institute
private complaints for the alleged offences. It was stated
that the appellant had made a fair and reasonable comment
as a prudent person, and therefore, the opinion expressed
by the appellant is fully protected under Article 19(1)(a)
of the Constitution of India which guarantees freedom of
speech and expression to all citizens. Furthermore, it was
contended that even if the allegations in the various
complaints are taken on their face value and accepted in
their entirety, the same do not disclose any offence
whatsoever and the opinion of the appellant does not, by
any means, fall within the ambit of Sections 499, 500 and
505 IPC or Sections 3 and 4 of Act 1986. It was also
canvassed that the criminal proceedings had been instituted
in a mala fide manner by the workers of a particular
political party, with the intention of vilifying the
appellant and gaining undue political mileage.
10. In response, Sh. Kanagaraj, Sr. Adv., Sh. S. Gowthaman,
Adv. and Sh. B. Balaji, Adv. appearing for the respondents,
submitted that since the High Court has refused to quash
the complaints, this Court should not interfere either
since the complaints require determination of factual
controversies that are best left to be decided by a court
of first instance. They have asserted that the complainants
in these cases are mostly women belonging to Tamil Nadu,
who were personally aggrieved by the appellant’s remarks.
It was argued that the endorsement of pre-marital sex by a
prominent person such as the appellant would have a morally
corruptive effect on the minds of young people. Her
statement would definitely obscure some basic moral values
and expose young people to bizarre ideas about premarital
sex, thereby leading to deviant behaviour which would
adversely affect public notions of morality. It was
contended that the constitutional protection for speech and
expression is not absolute and that it is subject to
reasonable restrictions based on considerations of ‘public
order’, ‘defamation’, ‘decency and morality’ among other
grounds.
11. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
12. In order to decide this case, it will not be proper for
us to either condemn or endorse the views expressed by the
appellant. When the criminal law machinery is set in
motion, the superior courts should not mechanically use
either their inherent powers or writ jurisdiction to
intervene with the process of investigation and trial.
However, such forms of judicial review can be exercised to
prevent a miscarriage of justice or to correct some grave
errors that might have been committed by the subordinate
courts. [See decision of this Court in: M/s Pepsi Foods
Ltd. & Anr. Vs. Special Judicial Magistrate & Ors., AIR
1998 SC 128]. In the past, this Court has even laid down
some guidelines for the exercise of inherent power by the
High Courts to quash criminal proceedings in such
exceptional cases. We can refer to the decision in State of
Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604,
to take note of two such guidelines which are relevance for
the present case :-
“(1). Where the allegations made in the First
Information Report or the complaint, even if they
are taken at their face value and accepted in
their entirety do not prima facie constitute any
offence or make out a case against the accused.
… (7). Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge.”
13. It is of course a settled legal proposition that in a
case where there is sufficient evidence against the
accused, which may establish the charge against him/her,
the proceedings cannot be quashed. In M/s Medchl Chemicals
& Pharma Ltd. Vs. M/s Biological E. Ltd. & Ors., AIR 2000
SC 1869, this Court observed that a criminal complaint or a
charge sheet can only be quashed by superior courts in
exceptional circumstances, such as when the allegations in
a complaint do not support a prima facie case for an
offence. Similarly, in M/s Zandu Pharmaceutical Works Ltd.
& Ors. Vs. Mohd. Sharaful Haque & Ors., AIR 2005 SC 9, this
Court has held that criminal proceedings can be quashed but
such a power is to be exercised sparingly and only when
such an exercise is justified by the tests that have been
specifically laid down in the statutory provisions
themselves. It was further observed that superior courts
“may examine the questions of fact” when the use of the
criminal law machinery could be in the nature of an abuse
of authority or when it could result in injustice. In
Shakson Belthissor Vs. State of Kerala & Anr., (2009) 14
SCC 466, this Court relied on earlier precedents to clarify
that a High Court while exercising its inherent
jurisdiction should not interfere with a genuine complaint
but it should certainly not hesitate to intervene in
appropriate cases. In fact it was observed:
“One of the paramount duties of the superior
courts is to see that a person who is apparently
innocent is not subjected to prosecution and
humiliation on the basis of a false and wholly
untenable complaint.”
14. There can be no quarrel about this Court’s competence
to quash criminal proceedings pending before the
subordinate courts. However, this power must be exercised
sparingly and with circumspection. In light of the position
summarized above, we can examine the present case with two
considerations in mind, namely whether the allegations made
against the appellant support a prima facie case for the
offences mentioned in the respective complaints, and
whether the complaints were made in a bona fide manner.
15. Perusal of the complaints reveals that most of the
allegations have pertained to offences such as defamation
(Sections 499, 501 and 502 IPC), obscenity (Section 292
IPC), indecent representation of women and incitement among
others. At the outset, we are of the view that there is
absolutely no basis for proceeding against the appellant in
respect of some of the alleged offences. For example, the
Act, 1986 was enacted to punish publishers and advertisers
who knowingly disseminate materials that portray women in
an indecent manner. However, this statute cannot be used in
the present case where the appellant has merely referred to
the incidence of pre-marital sex in her statement which was
published by a news magazine and subsequently reported in
another periodical. It would defy logic to invoke the
offences mentioned in this statute to proceed against the
appellant, who cannot be described as an ‘advertiser’ or
‘publisher’ by any means. Similarly, Section 509 IPC
criminalises a ‘word, gesture or act intended to insult the
modesty of a woman’ and in order to establish this offence
it is necessary to show that the modesty of a particular
woman or a readily identifiable group of women has been
insulted by a spoken word, gesture or physical act. Clearly
this offence cannot be made out when the complainants’
grievance is with the publication of what the appellant had
stated in a written form. Likewise, some of the complaints
have mentioned offences such as those contemplated by
Section 153A IPC (‘Promoting enmity between different
groups etc.,’) which have no application to the present
case since the appellant was not speaking on behalf of one
group and the content of her statement was not directed
against any particular group either.
16. Coming to the substance of the complaints, we fail to
see how the appellant’s remarks amount to ‘obscenity’ in
the context of Section 292 IPC. Clause (1) to Section 292
states that the publication of a book, pamphlet, paper,
writing, drawing, painting, representation, figure, etc.,
will be deemed obscene, if –
• It is lascivious (i.e. expressing or causing sexual
desire) or
• Appeals to the prurient interest (i.e. excessive
interest in sexual matters), or
• If its effect, or the effect of any one of the items,
tends to deprave and corrupt persons, who are likely
to read, see, or hear the matter contained in such
materials.
In the past, authors as well as publishers of artistic and
literary works have been put to trial and punished under
this section. In the present case, the appellant takes full
responsibility for her statement which was published in
‘India Today’, a leading news magazine. It would be apt to
refer back to the decision of this Court in Ranjit D.
Udeshi Vs. State of Maharashtra, AIR 1965 SC 881, wherein
it was held that if a mere reference to sex by itself is
considered obscene, no books can be sold except those which
are purely religious. It was observed that in the field of
art and cinema, the adolescent is shown situations which
even a quarter of a century ago would be considered
derogatory to public morality, but having regard to changed
conditions, the same are taken for granted without in any
way tending to debase or debauch the mind. What is to be
considered is whether a class of persons, not an isolated
case, into whose hands the book, article or story falls
will suffer in their moral outlook or become depraved by
reading it or might have impure and lecherous thoughts
aroused in their minds. Even though the decision in that
case had upheld a conviction for the sale of a literary
work, it became clear that references to sex cannot be
considered obscene in the legal sense without examining the
context of the reference.
17. This position was later clarified in Samaresh Bose Vs.
Amal Mitra, AIR 1986 SC 967, where the Court held that in
judging the question of obscenity, the judge in the first
place should try to place himself in the position of the
author and from the viewpoint of the author, the judge
should try to understand what is it that the author seeks
to convey and whether what the author conveys has any
literary and artistic value. Judge should thereafter place
himself in the position of a reader of every age group in
whose hands the book is likely to fall and should try to
appreciate what kind of possible influence the book is
likely to have on the minds of the reader.
18. There are numerous other decisions, both from India and
foreign country which mandate that ‘obscenity’ should be
gauged with respect to contemporary community standards
that reflect the sensibilities as well as the tolerance
levels of an average reasonable person. Owing to the clear
formulation on this issue it is not necessary for us to
discuss these precedents at length. In the present case,
the appellant has merely referred to the increasing
incidence of pre-marital sex and called for its societal
acceptance. At no point of time appellant described the
sexual act or said anything that could arouse sexual
desires in the mind of a reasonable and prudent reader.
Furthermore, the statement has been made in the context of
a survey which has touched on numerous aspects relating to
the sexual habits of people in big cities. Even though this
survey was not part of a literary or artistic work, it was
published in a news magazine thereby serving the purpose of
communicating certain ideas and opinions on the above-
mentioned subject. In the long run, such communication
prompts a dialogue within society wherein people can choose
to either defend or question the existing social mores. It
is difficult to appreciate the claim that the statements
published as part of the survey were in the nature of
obscene communications.
19. We must also respond to the claim that the appellant’s
remarks could have the effect of misguiding young people by
encouraging them to indulge in premarital sex. This claim
is a little far-fetched since the appellant had not
directed her remarks towards any individual or group in
particular. All that the appellant did was to urge the
societal acceptance of the increasing instances of
premarital sex when both partners are committed to each
other. This cannot be construed as an open endorsement of
sexual activities of all kinds. If it were to be considered
so, the criminal law machinery would have to take on the
unenforceable task of punishing all writers, journalists or
other such persons for merely referring to any matter
connected with sex in published materials. For the sake of
argument, even if it were to be assumed that the
appellant’s statements could encourage some people to
engage in premarital sex, no legal injury has been shown
since the latter is not an offence.
20. “Offence” means ‘an act or instance of offending’;
‘commit an illegal act’ and illegal means, ‘contrary to or
forbidden by law’.
“Offence” has to be read and understood in the context
as it has been prescribed under the provisions of Sections
40, 41 and 42 IPC which cover the offences punishable under
I.P.C. or under special or local law or as defined under
Section 2(n) Cr.P.C. or Section 3(38) of the General
Clauses Act, 1897 (vide Proprietary Articles Trade
Association Vs. Attorney General for Canada AIR 1931 PC 94;
Thomas Dana Vs. State of Punjab AIR 1959 SC 375; Jawala Ram
& Ors. Vs. The State of Pepsu (now Punjab) & Ors. AIR 1962
SC 1246; and Standard Chartered Bank & Ors. Vs. Directorate
of Enforcement & Ors. AIR 2006 SC 1301).
21. While it is true that the mainstream view in our
society is that sexual contact should take place only
between marital partners, there is no statutory offence
that takes place when adults willingly engage in sexual
relations outside the marital setting, with the exception
of ‘adultery’ as defined under Section 497 IPC. At this
juncture, we may refer to the decision given by this Court
in Lata Singh Vs. State of U.P. & Anr., AIR 2006 SC 2522,
wherein it was observed that a live-in relationship between
two consenting adults of heterogenic sex does not amount to
any offence (with the obvious exception of ‘adultery’),
even though it may be perceived as immoral. A major girl
is free to marry anyone she likes or “live with anyone she
likes”. In that case, the petitioner was a woman who had
married a man belonging to another caste and had begun
cohabitation with him. The petitioner’s brother had filed a
criminal complaint accusing her husband of offences under
Sections 366 and 368 IPC, thereby leading to the
commencement of trial proceedings. This Court had
entertained a writ petition and granted relief by quashing
the criminal trial. Furthermore, the Court had noted that
‘no offence was committed by any of the accused and the
whole criminal case in question is an abuse of the process
of the Court’.
22. It would also be instructive to refer to a decision of
the House of Lords (U.K.) in Gillick Vs. West Norfolk and
Wisbech Area Health Authority, (1985) 3 All ER 402. In that
case, mother of a teenage girl had questioned the decision
of the National Health Service (NHS) to issue a circular to
local area health authorities which contained guidelines
for rendering advice about contraceptive methods to girls
under the age of 16 years. Objections were raised against
this circular on the ground that the health service
authorities had no competence to render such advice and
that doing so could adversely affect young children while
at the same time interfering with parental autonomy in the
matter of bringing up children. The majority decision
rejected the challenge against the circular by clarifying
that the rendering of advice about contraceptive methods
and their provision by medical professionals did not amount
to a sexual offence. Among the several aspects discussed in
that case, it was held that the provision of information
about contraceptive facilities to girls under the age of 16
years could not be opposed on the ground that such
information could potentially encourage more sexual
activity by the teenagers. For the purpose of the present
case, this decision supports the reasoning that we must
fully understand the context and the purpose for which
references to sex have been made in any given setting.
23. We now turn to the question whether the appellant’s
remarks could reasonably amount to offence of defamation as
defined under Section 499 IPC. In the impugned judgment
dated 30.4.2008, the High Court observed that as to whether
the appellant could claim a defence against the allegations
of defamation was a factual question and thus would be
decided by a trial Court. However, even before examining
whether the appellant can claim any of the statutory
defences in this regard, the operative question is whether
the allegations in the impugned complaints support a prima
facie case of defamation in the first place. It is our
considered view that there is no prima facie case of
defamation in the present case. This will become self-
evident if we draw attention to the key ingredients of the
offence contemplated by Section 499 IPC, which reads as
follows:
“499. Defamation.- Whoever, by words either
spoken or intended to be read, or by signs or by
visible representations, makes or publishes any
imputation concerning any person intending to
harm, or knowing or having reason to believe that
such imputation will harm, the reputation of such
person, is said, except in the cases hereinafter
expected, to defame that person.
Explanation 1. – It may amount to defamation to
impute anything to a deceased person, if the
imputation would harm the reputation of that
person if living, and is intended to be hurtful
to the feelings of his family or other near
relatives.
Explanation 2. – It may amount to defamation to
make an imputation concerning a company or an
association or collection of persons as such.
Explanation 3. – An imputation in the form of an
alternative or expressed ironically, may amount
to defamation.
Explanation 4.- No imputation is said to harm a
person’s reputation, unless that imputation
directly or indirectly, in the estimation of
others, lowers the moral or intellectual
character of that person, or lowers the character
of that person in respect of his caste or of his
calling, or lowers the credit of that person, or
causes it to be believed that the body of that
person is in a loathsome state, or in a state
generally considered as disgraceful. …”
(emphasis supplied)
The definition makes it amply clear that the accused must
either intend to harm the reputation of a particular person
or reasonably know that his/her conduct could cause such
harm. Explanation 2 to Section 499 further states that ‘It
may amount to defamation to make an imputation concerning a
company or an association or collection of persons as
such.’
24. With regard to the complaints in question, there is
neither any intent on part of the appellant to cause harm
to the reputation of the complainants nor can we discern
any actual harm done to their reputation. In short, both
the elements i.e. mens rea and actus reus are missing. As
mentioned earlier, the appellant’s statement published in
‘India Today’ (in September 2005) is a rather general
endorsement of premarital sex and her remarks are not
directed at any individual or even at a ‘company or an
association or collection of persons’. It is difficult to
fathom how the appellant’s views can be construed as an
attack on the reputation of anyone in particular. Even if
we refer to the remarks published in ‘Dhina Thanthi’ (dated
24.9.2005) which have been categorically denied by the
appellant, there is no direct attack on the reputation of
anyone in particular. Instead, the purported remarks are in
the nature of rhetorical questions wherein it was asked if
people in Tamil Nadu were not aware of the incidence of
sex. Even if we consider these remarks in their entirety,
nowhere has it been suggested that all women in Tamil Nadu
have engaged in premarital sex. That imputation can only be
found in the complaints that were filed by the various
respondents. It is a clear case of the complainants reading
in too much into the appellant’s remarks.
25. This takes us to the question of whether the impugned
complaints were made in a bona fide manner. As we have
already noted, most of the complainants are associated with
the PMK, a political party which is active in the State of
Tamil Nadu. This fact does add weight to the suggestion
that the impugned complaints have been filed with the
intention of gaining undue political mileage. It may be
reiterated here that in respect of the offence of
defamation, Section 199 Cr.PC mandates that the Magistrate
can take cognizance of the offence only upon receiving a
complaint by a person who is aggrieved. This limitation on
the power to take cognizance of defamation serves the
rational purpose of discouraging the filing of frivolous
complaints which would otherwise clog the Magistrate’s
Courts. There is of course some room for complaints to be
brought by persons other than those who are aggrieved, for
instance when the aggrieved person has passed away or is
otherwise unable to initiate legal proceedings. However, in
given facts of the present case, we are unable to see how
the complainants can be properly described as ‘persons
aggrieved’ within the meaning of Section 199(1)(b) Cr.PC.
As explained earlier, there was no specific legal injury
caused to any of the complainants since the appellant’s
remarks were not directed at any individual or a readily
identifiable group of people. In M.S. Jayaraj Vs.
Commissioner of Excise, Kerala & Ors., (2000) 7 SCC 552,
this Court observed as under:
“The ‘person aggrieved’ means a person who is
wrongfully deprived of his entitlement which he
is legally entitled to receive and it does not
include any kind of disappointment or personal
inconvenience. ‘Person aggrieved’ means a person
who is injured or one who is adversely affected
in a legal sense.”
26. We can also approvingly refer to an earlier decision of
this Court in G. Narasimhan & Ors. Vs. T.V. Chokappa, AIR
1972 SC 2609. In that case a controversy had arisen after
‘The Hindu’, a leading newspaper had published a report
about a resolution passed by the Dravida Kazhagham, a
political party, in its conference held on January 23-24,
1971. Among other issues, the resolution also included the
following words:
“It should not be made an offence for a person’s
wife to desire another man.”
The Hindu, in its report, gave publicity to this resolution
by using the following words:
“The Conference passed a resolution requesting
the Government to take suitable steps to see that
coveting another man’s wife is not made an
offence under the Indian Penal Code.”
A complaint under Sections 499, 500 and 501 IPC was filed
in response to this report. Like the present case, the
Court had to consider whether the complainant had the
proper legal standing to bring such a complaint. The Court
did examine Section 198 of the Code of Criminal Procedure,
1898 (analogous to Section 199 of the Cr.PC. 1973) and
observed that the said provision laid down an exception to
the general rule that a criminal complaint can be filed by
anyone irrespective of whether he is an “aggrieved person”
or not. But there is a departure from this norm in so far
as the provision permits only an “aggrieved person” to move
the Court in case of defamation. This section is mandatory
and it is a settled legal proposition that if a Magistrate
were to take cognizance of the offence of defamation on a
complaint filed by one who is not an “aggrieved person”,
the trial and conviction of an accused in such a case by
the Magistrate would be void and illegal. This Court
further noted that the news-item in question did not
mention any individual person nor did it contain any
defamatory imputation against any individual. Accordingly,
it was held that the complainant was not a ‘person
aggrieved’ within the meaning of Section 198 CrPC, 1898.
The Court also took note of Explanation 2 to Section 499
IPC which contemplates defamation of ‘a company or an
association or any collection of persons as such’.
Undoubtedly, the explanation is wide but in order to
demonstrate the offence of defamation, such a collection of
persons must be an identifiable body so that it is possible
to say with precision that a group of particular persons,
as distinguished from the rest of the community stood
defamed. In case the identity of the collection of persons
is not established so as to be relatable to the defamatory
words or imputations, the complaint is not maintainable. In
case a class is mentioned, if such a class is indefinite,
the complaint cannot be entertained. Furthermore, if it is
not possible to ascertain the composition of such a class,
the criminal prosecution cannot proceed.
While deciding the case, this Court placed reliance on
the judgment of the House of Lords in Knupffer Vs. London
Express Newspaper Ltd. (1944) 1 ALL ER 495, wherein it had
been held that it is an essential element of the cause of
action for defamation that the words complained of should
be published “of the complainant/plaintiff”. Where he is
not named, the test would be whether the words would
reasonably lead people acquainted with him to the
conclusion that he was the person referred to.
In fact, it is the reputation of an individual person
which must be in question and only such a person can claim
to have “a legal peg for a justifiable claim to hang on”.
27. Coming back to the facts of the present case, the
complainants have alleged defamation in respect of
imputations against the character of Tamil-speaking women,
which could perhaps be viewed as a class of persons.
However, we have already explained, the appellant’s
remarks did not suggest that all women in Tamil Nadu have
engaged in premarital sex. In fact her statement in ‘India
Today’ did not refer to any specific individual or group at
all. If we refer to one of the questions asked as part of
the concerned survey, one of the answers shows that 26% of
the people who responded to the same did not think that it
was necessary for women to retain their virginity till the
time of marriage. Clearly the appellant was not alone in
expressing such a view, even though it may be unpopular or
contrary to the mainstream social practices. Even if it
were assumed that the news-item carried in ‘Dhina Thanthi’
caused mental agony to some sections of women in Tamil
Nadu, there is no prima facie case for any offence. What is
interesting to note is that not all of the complainants are
women, and in fact almost all the complainants are
associated with a particular political party.
28. We are of the view that the institution of the numerous
criminal complaints against the appellant was done in a
mala fide manner. In order to prevent the abuse of the
criminal law machinery, we are therefore inclined to grant
the relief sought by the appellant. In such cases, the
proper course for Magistrates is to use their statutory
powers to direct an investigation into the allegations
before taking cognizance of the offences alleged. It is not
the task of the criminal law to punish individuals merely
for expressing unpopular views. The threshold for placing
reasonable restrictions on the ‘freedom of speech and
expression’ is indeed a very high one and there should be a
presumption in favour of the accused in such cases. It is
only when the complainants produce materials that support a
prima facie case for a statutory offence that Magistrates
can proceed to take cognizance of the same. We must be
mindful that the initiation of a criminal trial is a
process which carries an implicit degree of coercion and it
should not be triggered by false and frivolous complaints,
amounting to harassment and humiliation to the accused.
29. Even though the constitutional freedom of speech and
expression is not absolute and can be subjected to
reasonable restrictions on grounds such as ‘decency and
morality’ among others, we must lay stress on the need to
tolerate unpopular views in the socio-cultural space. The
framers of our Constitution recognised the importance of
safeguarding this right since the free flow of opinions and
ideas is essential to sustain the collective life of the
citizenry. While an informed citizenry is a pre-condition
for meaningful governance in the political sense, we must
also promote a culture of open dialogue when it comes to
societal attitudes. Admittedly, the appellant’s remarks did
provoke a controversy since the acceptance of premarital
sex and live-in relationships is viewed by some as an
attack on the centrality of marriage. While there can be no
doubt that in India, marriage is an important social
institution, we must also keep our minds open to the fact
that there are certain individuals or groups who do not
hold the same view. To be sure, there are some indigenous
groups within our country wherein sexual relations outside
the marital setting are accepted as a normal occurrence.
Even in the societal mainstream, there are a significant
number of people who see nothing wrong in engaging in
premarital sex. Notions of social morality are inherently
subjective and the criminal law cannot be used as a means
to unduly interfere with the domain of personal autonomy.
Morality and Criminality are not co-extensive. In the
present case, the substance of the controversy does not
really touch on whether premarital sex is socially
acceptable. Instead, the real issue of concern is the
disproportionate response to the appellant’s remarks. If
the complainants vehemently disagreed with the appellant’s
views, then they should have contested her views through
the news media or any other public platform. The law should
not be used in a manner that has chilling effects on the
‘freedom of speech and expression’. It would be apt to
refer to the following observations made by this Court in
S. Rangarajan Vs. P. Jagjivan Ram & Ors., (1989) 2 SCC 574,
which spell out the appropriate approach for examining the
scope of ‘reasonable restrictions’ under Art. 19(2) of the
Constitution that can be placed on the freedom of speech
and expression:-
“ … Our commitment of freedom of expression
demands that it cannot be suppressed unless the
situations created by allowing the freedom are
pressing and the community interest is
endangered. The anticipated danger should not be
remote, conjectural or far-fetched. It should
have proximate and direct nexus with the
expression. The expression of thought should be
intrinsically dangerous to the public interest.
In other words, the expression should be
inseparably locked up with the action
contemplated like the equivalent of a ‘spark in a
powder keg’.
The Court further held:
“ … The standard to be applied by the Board or
courts for judging the film should be that of an
ordinary man of common sense and prudence and not
that of an out of the ordinary or hypersensitive
man … The different views are allowed to be
expressed by proponents and opponents not because
they are correct, or valid but because there is
freedom in this country for expressing even
differing views on any issue. … Freedom of
expression which is legitimate and
constitutionally protected, cannot be held to
ransom by an intolerant group of people. The
fundamental freedom under Article 19(1)(a) can be
reasonably restricted only for the purposes
mentioned in Article 19(2) and the restriction
must be justified on the anvil of necessity and
not the quicksand of convenience or expediency.
Open criticism of government policies and
operations is not a ground for restricting
expression. We must practice tolerance of the
views of others. Intolerance is as much dangerous
to democracy as to the person himself.”
30. Thus, dissemination of news and views for popular
consumption is permissible under our constitutional scheme.
The different views are allowed to be expressed by the
proponents and opponents. A culture of responsible reading
is to be inculcated amongst the prudent readers. Morality
and criminality are far from being co-extensive. An
expression of opinion in favour of non-dogmatic and non-
conventional morality has to be tolerated as the same
cannot be a ground to penalise the author.
31. Before saying omega, it is necessary for us to point
out certain unwarranted developments that have taken place
ever since the matter was heard till date. In fact, during
the course of hearing, certain queries were put to the
learned counsel appearing for parties so as to clarify the
legal issue involved in the matter but unfortunately, those
queries have been highly misunderstood not only by media
but also by common man. As a result thereof, we have been
flooded with several letter petitions making a prayer for
review of the order passed by us. It is pertinent to
mention here that no order was passed by us and only during
the course of hearing, we had either given some instances
or put some questions to the learned counsel which were
answered by them. Thus, this hyper active attitude of the
common man was, indeed, not called for. Some have even
gone to the extent of telling us that we should have known
the Indian mythology before putting such question. Thus,
whatever we have said during the course of the hearing
should be reviewed. We fail to understand how such an
attitude could be adopted by those learned persons who were
involved in sending various letter petitions to us.
Admittedly, all those persons who have sent letters to us
were not present on that particular date but must have
gathered information from the print and electronic media
which evoked their sentiments to such an extent that they
prayed for review.
32. It is, therefore, not only desirable but imperative
that electronic and news media should also play positive
role in presenting to general public as to what actually
transpires during the course of the hearing and it should
not be published in such a manner so as to get unnecessary
publicity for its own paper or news channel. Such a
tendency, which is indeed growing fast, should be stopped.
We are saying so as without knowing the reference in
context of which the questions were put forth by us, were
completely ignored and the same were misquoted which raised
unnecessary hue and cry.
33. We hope and trust in future, they would be little more
careful, responsible and cautious in this regard.
34. In conclusion, we find that the various complaints
filed against the appellant do not support or even draw a
prima facie case for any of the statutory offences as
alleged. Therefore, the appeals are allowed and the
impugned judgment and order of the High Court dated
30.4.2008 is set aside. The impugned criminal proceedings
are hereby quashed.
……………………….CJI.
.………………………. J.
(DEEPAK VERMA)
.………………………. J.
(Dr. B.S. CHAUHAN)
New Delhi
April 28, 2010
