July 31, 2011

Laws Related to violence against Women & Punishments


Law on Molestation

Section 354 of IPC: An assault or use of criminal force with intent to outrage the modesty of any women shall be punished with imprisonment up to two years or fine or both.

Law on eve teasing

Section 509 of IPC: Word, gesture or act intended to insult the modesty of a woman

Section 294 of IPC: Whoever, to the annoyance of others,

(a) Does any obscene act in any public place, or

(b) Sings, recites or utters any obscene songs, ballad or words, in or near any public place,

[Shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.]

Rape

Rape is an offence not against the individual but like all crimes in the IPC, it is a crime against state.

Section 375of IPC : A man is said to commit "rape" who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:—

First.against her will, Secondly.without her consent. Thirdly.with her consent, when her consent has been obtained by putting her in fear of death, or of hurt. Fourthly.with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.With or without her consent, when she is under {The original word "ten" has successively been amended by Acts 10 of 1891, 29 of 1925 and Act 42 of 1949, s.3, to read as above} [sixteen] years of age.

Section 376 of IPC:  Punishment for rape:

         Punishment: Minimum 10 yrs, or up to life imprisonment and fine

Unless the woman raped is his own wife and is not less than twelve years of age, in which case he shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 376 A of IPC: Whoever has sexual intercourse with his wife, who is living separately from him under a decree of separation or under any custom or usage without her consent.

{Punishment: shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine}

Section 376 B of IPC: Whoever, being a public servant, takes advantage of his official position and induces or seduces any woman, who is in his custody as such public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape.

{Punishment: shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine}

Section 376 C of IPC: Whoever, being the superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children's institution takes advantage of his official position and induces or seduces any female inmate of such jail, remand home, place or institution to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape.

Explanation 1. -"Superintendent" in relation to jail, remand home or other place of custody or a women's or children's institution included a person holding any other office in such jail, remand home, place or institution by virtue of which he can exercise any authority or control over its inmates.
Explanation 2. - The expression "women's or children's institution" shall have the same meaning as in Explanation 2 to sub-section (2) of section 376.]

{Punishment: shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine}

Section 376 D of IPC: Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not amounting to the offence of rape.

{Punishment:  shall be punished with imprisonment of either description for term which may extend to five years and shall also be liable to fine}

Section 377 of IPC: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal.

Explanation. -Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

{Punishment: shall be punished with [imprisonment for life], or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine}

Section 511 of IPC: Attempts to commit rape

{ Punishment: for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.}

Section 109 of IPC: Aiding or abetting Rape

{Punishment: Imprisonment for life and Fine}

Section 34 of IPC: Common intension (Gang rape)

When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

{Punishment: Imprisonment for life or Fine or both}

Section 201 of IPC: Causing disappearance of evidence of offence, or giving false information to screen offender.

{Punishment: Imprisonment for seven years and fine}

Section 354 of IPC: Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty.

{Punishment: shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.}

Section 509 of IPC: Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, of that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman.

{Punishment: shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.}

Section 366 of IPC: Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse.
[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid]

{Punishment: shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 366 A of IPC: Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person.

{Punishment: shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.}

Section 366 B of IPC: Whoever imports into [India] from any country outside India [or from the State of Jammu and Kashmir] any girl under the age of twenty-one years with intent that she may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person.

{Punishment: shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine}

Section 372 of IPC: Whoever sells, lets to hire, or otherwise disposes of any [person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be] employed or used for any such purpose.

{Punishment: shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine}.

Section 373 of IPC: Whoever buys, hires or otherwise obtains possession of any [person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, of knowing it to be likely that such person will at any age be] employed or used for any purpose.

{Punishment: shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine}.











July 29, 2011

A. Subash Babu versus State of Andhra Pradesh and Others

This Special leave petition arises out a Quash petition in the Andhra Pradesh High Court, concerned over the offences under 498A, 494, 495,417 and 420 IPC, has been partly allowed by quashing proceedings insofar as offence punishable under Section 498A IPC is concerned, whereas the proceedings relating to the offences punishable under Sections 494, 495, 417 and 420 IPC are ordered to continue against the appellant.
Petitioner aggrieved approaches court through an Special Leave Petition.
The facts of the case are as follows :
A.Suresh Babu, hereinafter, petitioner, was a Sub Inspector of Police, cheated the petitioner no.2 and her parents, by stating that his first wife had died after delivering two children who are studying and staying in a hostel, even though his first wife by name Sharda is very much alive and living with him.
The petitioner, on the pretext of constructing a house , demanded substantial amount of money from the parents of the respondent 2 , when denied, threatened dire consequences to the respondent 2 and her parents.
Aggrieved by the actions of the petitioner, the respondent no.2 lodged an FIR, in the Police Station, investigated and was charge sheeted. The Magistrate took cognizance of the offences and summoned the Petitioner.
An earlier attempt to quash the proceedings initiated by the Magistrate was withdrawn the petitioner and approached the court again on quashing of the charge-sheet by a separate petition.
The grounds under which the quash petition was based upon was that, the learned Magistrate under the Criminal Procedure Code, was not valid as , proceedings against the appellant were registered for commission of above mentioned offences on the basis of charge sheet submitted by the Sub-Inspector of Police and not on the basis of complaint made by the aggrieved person within the meaning of Section 198 of the Code. Secondly, as the Hindu Marriage Act, recognizes only one marriage, the grounds under which the petitioner has been charged is not valid , as the marriage itself is void.
Issues raised :
1. Whether the Second wife is entitled to legal remedy under Sec.494 and Sec.495 of the Indian Penal Code ?
2. Whether , in case of a special amendment to the Criminal Procedure Code, allow the Magistrate to take cognizance of the same?
Analysis and Judgment
As far as Section 494 IPC is concerned, the criminality attaches to the act of second marriage either by a husband or by a wife who has a living wife or husband, in a case in which second marriage is void by reason of its taking place during the life of such husband or wife. When a law, such as Section 11 of Hindu Marriage Act, 1955 declares that a second marriage by a husband, who has living wife, with another woman is void, for breach of Section 5 (i) of the said
Act, it brings/attaches several legal disabilities to the woman with whom second marriage is performed. Say for example, she would not be entitled to claim maintenance from her husband even if she is inhumanly treated, subjected to mental and physical cruelty of variety of kinds etc. and is not able to maintain herself.
Section 494 is intended to achieve laudable object of monogamy.
This object can be achieved only by expanding the meaning of the phrase “aggrieved person”. For variety of reasons the first wife may not choose to file complaint against her husband e.g. when she is assured of re-union by her husband, when husband assures to snap the tie of second marriage etc. Non-filing of the complaint under Section 494 IPC by first wife does not mean that the offence is wiped out and monogamy sought to be achieved by means of Section 494 IPC merely remains in statute book.
In Gopal Lal Vs. State of Rajasthan[1] this Court has ruled that in order to attract the provisions of Section 494 IPC both the marriages of the accused must be valid in the sense that the necessary ceremonies required by the personal law governing the parties must have been duly performed.
Though the law specifically does not cast obligation on either party to seek declaration of nullity of marriage and it may be open to the parties even without recourse to the Court to treat the marriage as a nullity, such a course is neither prudent nor intended and a declaration in terms of Section 11 of the Hindu Marriage Act will have to be asked for, for the purpose.
Therefore, until the declaration contemplated by Section 11 of the Hindu Marriage Act is made by a competent Court, the woman with whom second marriage is solemnized continues to be the wife within the meaning of Section 494 IPC and would be entitled to maintain a complaint against her husband.
Section 494 does not say that the complaint for commission of offence under the said section can be filed only by wife living and not by the woman with whom subsequent marriage takes place during the life time of the wife living and which marriage is void by reason of its taking place during the life of such wife. The complaint can also be filed by the person with whom second marriage takes place which is void by reason of its taking place during the life of first wife.
In Reema Aggarwal Vs. Anupam and others[2], holding that a person who enters into marital arrangement cannot be allowed to take shelter behind the smoke screen of contention that since there was no valid marriage the question of dowry does not arise.
Thus a bare reading of the provision and the necessary complaint , leads to the conclusion that the complaint is valid .
With respect to the Magistrate taking cognizance of the crimes , the apex Court, went into the details of conflict of laws between the State and the Centre, where the current amendment to the Code was wrongly interpreted by the High Court , and thus providing an injustice to the respondent.


[1] (1979) 2 SCC 170
[2] (2004) 3 SCC 199.

July 27, 2011

GVK Industries v ITO : Morality of Nations and Constitutional Spirit, An Interpretation of Article 245 with Modern Jurisprudence. (1st March,2011)

Well, I am kind of late for posting this marvelous decision by the Supreme Court of India. Here are some of my observations while going through the decision.
The decision is rather heroic in one word than anything else. Not just the established jurisprudence, but the Apex Court of India spilled the morality of nations and the respect that self-determination has in eyes of the judiciary of this adolescent but yet matured democracy.
The two questions that Court posed in front were,
1. Is the Parliament constitutionally restricted from enacting legislation with respect to extra-territorial aspects or causes that do not have, nor expected to have any, direct or indirect, tangible or intangible impact(s) on, or effect(s) in, or consequences for: (a) the territory of India, or any part of India; or (b) the interests of, welfare of, wellbeing of, or security of inhabitants of India, and Indians?
2. Does the Parliament have the powers to legislate “for” any territory, other than the territory of India or any part of it?
Whereas the first question was decided in the affirmative the second question was answered in negation. Court partially overruled the Electronic Corporation of India Limited v. Commissioner of Income Tax and Another[1]. Sudershan Reddy J. writing the opinion observed the following important points.
Court walking extra mile divided the propositions put forwarded by the Attorney General and discussed the proposition of Attorney General in following parts.
a. Proposition that the legislature has competence to make laws which has impact on India
b. Which has no impact on India;
c. That the parliament will enact the law which will benefit the denizens of foreign territory and provide the justice to them (Court taking the view that the anything which doesn’t provide justice is not law). And since India is not established with the intent of being expansionary or imperialistic the law certainly will not be exploitative, and that leaves us with three combinations,
i. Law is beneficial to India and Foreign Territory
ii. Beneficial to Foreign territory but no effect on India;
iii. Beneficial to Foreign denizens but damages interest of India.
d. That the judiciary can’t invalidate the law on the basis of its extraterritorial effect.
Court observed that the each part of the Constitution has a topological spaces and the true meaning of a provision can be determined by the reading the language of other provisions in topological spaces. While interpreting the Article 245 of the Constitution, Court emphasized that the topological space frequented the clause “the whole or any part of the territory of India” Court held that the ECIL judgment wrongly interpreted that the law can be made through provocations or objects “in” or “within” territory of India. Emphasizing that the word “for” is used in Article 245, the provocations or objects might not be within or in the territory of India.
Court further giving the reference of interpretation of Constitution with changing times and further reference of terrorism and security of India answered the first proposition of Attorney General in affirmative i.e. the law with extra-territorial effect can be made if it has impact of such law is for benefit of India.
In answering the second question Court again fell back to the usage of word “for” in the Article 245 (1). The Court said that the Parliament is “ours” and there are two limitations that flow from the Article 245. First that the laws are made for the benefit of the people of India, and second, that no law can be made which has no nexus with the benefit of citizen of India.
No organ of the Indian State can be the repository of the collective powers of the people of India, unless that power is being used exclusively for the welfare of India. Incidentally, the said power may be used to protect, or enhance, the welfare of some other people, also; however, even that goal has to relate to, and be justified by, the fact that such an exercise of power ultimately results in a benefit – either moral, material, spiritual or in some other tangible or intangible manner – to the people who constitute India.
Giving the reference of Article 51 of the Constitution, together with Article 245 as interpreted Court held that such laws will be in derogatory of International Peace and Security. Court further declined that law is positive morality or Dicean in nature. Court observed that the written Constitution gives supremacy to the Constitution and its theme above all. In this way we have severed our links with British parliament where the Parliament have unlimited power to legislate.
Court observed that Article 245(2) is not the independent clause; it is in fact a dependent on the Clause (1) of Article 245. Further, Art. 245 enunciate the function of Legislature, executive and judiciary which is continued in the Article 245(2). If a law which couldn’t be invalidated on the grounds as stated by the Attorney General, the judiciary would lose its essential function of “invalidating” bad laws in foreign territory which is against basic structure doctrine of the Constitution. Article 245(2) is exception to the Article 245(1) only; otherwise it would give legislature an infinite field to function in foreign territory with judiciary stripped of its essential function of invalidating laws. Thus, interpreting harmoniously, Indian Parliament can’t make laws which have no nexus with the benefits of Indian Citizen.
This decision is not only important for the spirit of Indian Constitution, but also an inspiration for other countries on the constitutionalism and spirit of democratic constitution. One of the remarkable Constitution Bench decision with important and less discussed concept like Morality of Nation.


[1] 1989 2SCC 642.

July 25, 2011

Tenancy in Common & Joint Tenancy


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Tenancy in Common 


Tenants in common share equal property rights except that, upon the death of a tenant in common, that share does not go to the surviving tenants but is transferred to the estate of the deceased tenant meaning that there is no right of survivorship. It is passed to their legal heirs. Tenants in common of an item property may own equal or unequal shares, sometimes expressed in percentages. Each tenant in common may sell his share to another.

“Each tenant in common has a distinct share in property which has not yet been divided among co-tenants. Thus tenants in common have quite separate interests. The only fact which brings them into co-ownership is that they both have shares in a single property which has not yet been divided among them. While the tenancy in common lasts, no one can say which of them owns any particular parcel of land.

The size of each (co-tenant's) share is fixed once and for all and is not affected by the death of one of his companions. When a tenant in common dies, his interest passes under his will or intestacy, for his undivided share is his to dispose of as he wishes.”[1]

For instance X and Y acquire real estate as equal tenants in common, each having furnished one half of the purchase price. Upon B’s prior death, his one half interest in the property passes to his estate or heirs.

Another feature of tenancy in common is that all owners are allowed to use the whole of the property in common with all tenants in common since they hold the property together by several and distinct titles, but by unity of possession.


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Joint Tenancy

In joint tenancy, two or more persons are equally owners of some property. The share of a joint tenant who dies goes to the surviving joint tenants until there is but a single survivor, at which time the sole survivor owns the whole unlike tenants in common where when such a property owner dies, his share goes to his estate. This is the unique aspect of joint tenancy that as the joint tenancy owners die, their shares accrue to the surviving owner(s) so that, eventually, the entire share is held by one person.

A valid joint tenancy is said to require the "four unities":
a)      unity of interest (each joint tenant must have an equal interest including equality of duration and extent);
b)     unity of title (the interests must arise from the same document),
c)      unity of possession (each joint tenant must have an equal right to occupy the entire property); and
d)     unity of time: the interests of the joint tenants must arise at the same time;

Indian Courts strongly leans against holding any particular ownership as joint tenancy. The presumption is always in favour of a tenancy-in-common[2].

Since in case of death of each joint tenant, his (or her) interest goes to the remaining joint tenant and by the passing deaths of all but one joint tenant, the title is finally unified with the last survivor by the “right of survivorship”. This characteristic prevents an interest held in joint tenancy from being conveyed by will.

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For instance if A, B and C acquire real estate as joint tenants, each one is entitled equally to the rights accruing out of the property. Upon B’s prior death, his one third interest in the property instead of passing to his estate or heirs as is the case in tenancy-in-common will pass on to A and C and subsequently upon C’s prior death, his one half interest in the property will pass on to A by his right of survivorship. 



[1] Megarry, R., The Law of Real Property (London: Sweet & Maxwell, 2000, 6th Edition), page 481.
[2] Venkatakrishna v. Satyavati; AIR 1968 SC 751

July 18, 2011

Global Tech v. SEB (US Supreme Court, 31st May, 2011): Merger of Doctrine of Willfull Blindness with Induced Infringement.

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The United States Supreme Court Decision was in regard to the 35 USC 271 or the induced infringement. The Court held that the ignorance of the known risk for the infringement would be environed under the “Actual Knowledge”.

The decision is pure example of setting new laws and extending application of the doctrines together with the interpretation of clauses of 35 USC 271. The Court held that the induced infringement under 35 USC 271 requires the knowledge that the induced act constitutes Patent Infringement. The text of the Article itself is ambiguous in nature. Whereas on the first instance it can be inferred from the language that the if the accused has engaged other in the act that happen to be infringement, the other may mean that the accused must persuade the other party to engage in the act that inducer knows to be infringing. The Court observing the ambiguity, discussed the case of Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U. S. 476 (Aro II). Court held that the induced infringement under 271(c) must require knowledge of both patent and that the act would be an infringement. As the origin of 271 (b) and 271(c) is the same, the clause 271(b) must also meet the same criteria as the 271(c). The mere indifference to the known risk doesn’t satisfy the level of knowledge requirement as demanded by the 271(b).

However, Court affirmed the Federal Circuit judgment (FC ruled for induced infringement) under the Doctrine of Willful Blindness. Court observed that the doctrine is well established in the legal system for criminal jurisprudence and there is no reason why it shouldn’t be extended to the civil cases. The Doctrine states that the willfull blindness of the knowledge constitutes the actual knowledge of the accused. Based on the evidences available at District Court and Federal Circuit, the Court held that the induced infringement was done.
Court agreed on the two point test.

    # The defendant must subjectively believe that there is a high probability that a fact exists.
   # The defendant must take deliberate actions to avoid learning of that fact.

The decision set the extend norms for the induced infringement of the Patents by induction. The decision is one Judicial Activism worthy reading with the other citations it has cited. The majority was delivered by Altio J.

July 14, 2011

Ram Jethmalani and Others vs Union of India (The Tax haven Case)

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One of the other cases exulting the Constitutionalism and refuting the inaction of the government on the matter of crime as violation of constitutional values and constitutionalism. The petition was forwarded by some eminent professional like Mr. Ram Jethmalani, Mr. Gopal Sharman, Jaybala Vaida, Mr. KPS Gill, Prof. BB Dutta, and Mr. Subhash Kashyap. The petition came to the Court on the basis of news flooded in newspapers and tabloid about the inaction of the Government to bring back the tainted money deposited in the foreign Banks and Tax Havens.

Petitioner contended that the money deposited in the foreign banks can be used for unlawful purposes. The petitioner also alleged that the money deposited is owned by some of the prominent and influential people of India as the efforts made to bring back the same is intervened at different times which is only possible by high level intervention. The petitioner giving the example of reversal of RBI decision on providing license to UBS group for retail banking license in 2008 further tried to convince the Court of the involvement of influential persons from corporate and political arena.

Petitioner also questioned the inaction on the part of government in reveling the documents related to Hasan Ali when it itself has claimed a tax amount of Rs. 70000 Crores pending from his side. The similar case is for Tapuria where no action is taken despite the fact that the Government has claimed thousands Crores of Rupees not paid as tax.

From the petitoner's side, it was requested to constitute Special Investigation Team (SIT) headed by one or two judges of Supreme Court to look into the matter which was opposed by the Government of India.
The Bench of Justice Sudershan Reddy J and Surender Singh Nijjar J expresses dismay over the attitude of Government of India and virtually smashed the arguments placed by her. The Government pleaded that these are the matters of international diplomacy and takes its due course and thus are in complex in nature. In the particular issue of the account in the German Banks and Liechtenstein, the petitioner alleged that the countries offered to provide the name of the account holder but the Government chose to assume that they could have asked. Government on the matter contended that the under the DTAA they are proscribed to reveal the name of the persons holding the account and further that it would be against their right of privacy under Article 21 of the Constitution.

The Court interpreting the DTAA between India and Germany declined the argument placed by the Government. Further the Article 26 of the agreement specifically put exception to the disclosure to any Court Proceedings. Court stated that though India is not the party to Vienna Convention of Law of Treaties, it has adopted the general principles of the rule interpretation in practice. Referring to the Article 31 of the Convention, the Court stated that the treaty is to be interpreted to maximum welfare and in good faith. Court further stated that the Article 26 of the DTAA puts secrecy clause for the purpose of the agreement i.e. in the matter related to the DTAA, however, the purpose for which the present matter is concerned doesn’t even remotely touch the implications of secrecy clause.

Court cautioned the drafting of the treaties as it is mostly done by the diplomats than lawyers. The Court said that the treaties is to be interpreted keeping this notion in view that these are interpreted by the diplomats. It is important to take note that the treaties are to be given general meaning “as to the lawyer to to the layman alike”. However since these are drafted by the diplomats, it I to be taken care that none of the words remain redundant in the constitutional perspective.

Praising the contribution of Germany in modern Constitutionalism, especially for the concept of Basic Structure Doctrine of the Constitution of India which is borrowed from the German Constitution, the court said that the Germany would be aware of the fact that such clause, if used in the way Union of India is asserting would lead to setting aside the constitutional imperatives.

Court further stated that in the cases where state has most of the information put in boxes, the state can’t take advantage of adversarial system of common law. In the cases of Fundamental Rights, the state must put all the relevant information before the Court despite adversarial system doesn’t put a burden on it to do so.
The apex Court drew the relation between the Article 32(1) and Article 19(1) (a) and said that the withholding the information from the Court is restraining the right of expression of the petitioner.

Right to Privacy:
In the matter of assertion of the Union of India that the disclosing the name of the account holder would violate the right to privacy, Court accepted the assertion. Court, recognizing that the right to privacy is an important part of the Article 21 can only be taken out by law. Since being the account holder of the said bank is not an illegal act, the concern individuals have their right intact and can’t be violated. Court further held that it wouldn’t make any exception in this regard as the bits may be read to create further exception in future which is not good for democracy.

The decision is insightful and dealt with the constitutional values and principles. This decision can be placed on the same side as Nandini Sunder in regard to the emphasis on the Constitutional Principles and values. However, both the decision criticized the private investment and suggested policy remake which is beyond understanding of separation of powers.

The precedence set in these decisions is not concern of immediate future, but as the Supreme Court itself noted, these kind of exceptions, in regard to any fundamental concept could “bit by bit could eviscerate” the main value.

"Again reserving my opinion in the matter of observation in regard to the policy and indirect suggestions to legislature by Supreme Court of India when law is already in place by legislature, the decision is worth reading".

July 11, 2011

Nandini Sunder v Union of India (SPO Case) : Not just Fundamental Rights to discuss, Are we forgetting Separation of Powers?

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“Our Constitution charges the various organs of the state with affirmative responsibilities of protecting the interests of, the welfare of and the security of the nation…. powers are granted to enable the accomplishment of the goals of the nation. The powers of judicial review are granted in order to ensure that such power is being used within the bounds specified in the Constitution. Consequently, it is imperative that the powers so granted to various organs of the state are not restricted impermissibly by judicial fiat such that it leads to inabilities of the organs of the government in discharging their constitutional responsibilities. Powers that have been granted, and implied by, and borne by the Constitutional text have to be perforce admitted. Nevertheless, the very essence of constitutionalism is also that no organ of the state may arrogate to itself powers beyond what is specified in the Constitution. Walking on that razors edge is the duty of the judiciary. Judicial restraint is necessary in dealing with the powers of another coordinate branch of the government; but restraint cannot imply abdication of the responsibility of walking on that edge.”[1]

Nandini Sunder is one of the finest examples of the extent to which the Supreme Court of India can spread their legs in policy matters. The Supreme Court decision in this matter not only struck down a policy of Government as unconstitutional, but observed the dimensions of such policy indicating how a law ought to be. The Supreme Court in the decision feared the criticism on the excessive spread in the matter of policy by the jurist, but justified the same with the quote from a recent decision of Supreme Court in the matter of GVK Industries and the argument that the Court has to move on "edged razors" for the Constitution.

Supreme Court struck down Section 9 of the Chhattisgarh Police Act and Section 18 of the Indian Police Act in violation of the Article 14, 21 and 355 of the Indian Constitution. Court held that the no sovereign can take this argument that insufficiency of the resources are putting the citizen of the country and justifying the violation of the Fundamental Rights. Court also said that the funding of Union to State of Chhattisgarh for the act which is unconstitutional is violative of Article 355 of the Constitution.

The Apex Court remained concerned about the after security issues of the Special police Officers while issuing the orders for disarmament and ordered for the appropriate measures by the State of Chhattisgarh on the issue of security after disarmament.


Court observed following:
1. The discipline of the Constitutionalism is accountability of power whereby the power of the people vested in any organ of state, and its agent, can only be used for promotion of constitutional values and vision.
2. The appointment of the SPOs is dehumanizing in the nature and doesn’t propagate the Constitutional values in any respect.
3. The Court also condemned the “privatization” and “political economy” of the country and took a very socialistic view in the decision throughout. The Court, however, didn’t talk about the distribution of resources among the citizen for equal opportunities. Holds privatization policy as cause of the Maoist problem together with the financial imbalances in the country.

4. Court  also observed that the unrest in democracy is the true indicator of democracy. Only unrest can suggest that the Government has to perform well as citizens want it. The repression of the unrest is undemocratic in nature.
5. Court mentioned, Corporate and multinationals as one of others who are responsible for the situation in the Chhattisgarh. In my view, these were untenable statements and Court shouldn’t decide what is not good and leave it for the legislature. Court ought to do it is not good according to Constitution or Law, and shouldn’t enter into this other domain[2]. Court well went into the problem solution mode of the governance which is not its area of concern[3]. Court also condemned the tax subsidies etc. to private party which is again not its domain of analysis. I think the citizen representatives are best to decide upon what and how much tax should one be paying and who all should be exempted. Strictly not the matter to be discussed by a Court.

Giving refute on the MNCs and Economic Policy of government, I must say Court leaped a step forward to forbidden area of policy making. This further would bring biasness in attitude of Apex Court.
Court found section 9 of Chhattisgarh Police Act and Section 18 of the Indian police Act as the violative of Article 14 and 21 of the Constitution. Court backfired on the argument from the Chhattisgarh that they are providing them the employment. Court stated that the necessary education of the SPO is till the 5th standard and they won’t know how and when to use a weapon up to its best capacity. Court further stated that the claim of Chhattisgarh that the SPO are taught with the principles of Human Rights and Cr.PC and Evidence Act is also devoid of credibility as these subjects require a minimum of the background education. Court stated that how would a SPO know that what is self defense and when does it start (On the argument that firearms are provided for their self defense). It is intricate matters of law which requires a level of intellectual capacity that these SPO (5th standard pass out or lower) can't posses. Court held this as violative of Article 21 of the Constitution as these unskilled SPO are put into front with less and almost no effective training that has resulted into higher ratio of casualty than the Police force.

Court, on the argument of the Chhattisgarh that the SPO are given same level of rank as that of the Police Officer, asked the question on the discrimination on the level of salary. The Salary of SPOs is less than one-third of the regular police officer. Court held that, further the regular force are more skilled in the training and knowledge of weaponry for the front than these SPOs, this is violative of Article 14 of the Constitution.
Whereas the decision is very learning, Court indeed jumped few hoops. The criticism is following, and if continues, in a long run, it might be catastrophic. We must understand that the three branches (Judiciary, Executive and Legislature) are equally powerful and they sustain together because they respect each other’s domain.

Taking separation of power on a lighter concern, yet another fine decision from one of the most dynamic Courts of the world.


[1] G.V.K. Industries v. ITO, 2011 4SCC 36
[2] Pg 11-15
[3] Pg 18

July 7, 2011

Prevention of Communal and Targeted Violence Bill 2011

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The much discussed Prevention of Communal and Targeted Violence Bill is in the news for all bad reasons in the media. Whereas the draft bill didn’t get the sufficient attention of the public at large (in caomparison to Lokpal Bill), the minority also remained untouched with the deliberations on the Act.

National Advisory Council (NAC) constituted five member Working Group for the draft of PCTV Bill, together with 24 member advisory group and 10 member Drafting Committee experts outside from NAC in August 2010. Working Committee presented its draft Bill to NAC on 28th April, 2011 from which, together with the recommendations received till June 4th, the NAC will recommend it to government.

In the bill communal and targeted violence is been described as
“communal and targeted violence” means and includes any act or series of acts, whether spontaneous or planned, resulting in injury or harm to the person and or property, knowingly directed against any person by virtue of his or her membership of any group, which destroys the secular fabric of the nation;
Whereas the opposition is on the ground that the definition of the communal and targeted violence is largely reduced by the clause “which destroys the secular fabric of the nation”, the other side of the argument is the inclusive nature of the clause itself. The disputed clause is also very general in nature putting it very ambiguous as when it can be said that the secular fabric of the nation is destroyed. This clause, however also gives more power to Courts to interpret which through judicial activism may make it broad as there are equal chances of it getting broader as there are chances of it to be interpreted narrowly.

Clause 3(e) of the bill defines group as
“group” means a religious or linguistic minority, in any State in the Union of India, or Scheduled Castes and Scheduled Tribes within the meaning of clauses (24) and (25) of Article 366 of the Constitution of India;
It is beyond the understanding why majority is not included in the clause. It is been evident that in the communal violence, the war is two sided and minority also prone to damage as the majority. This clause is providing insufficient protection to the citizens of the country.

The Bill provides extra power to the central government through clause wherein the communal violence is been given the status of “internal disturbance” under Article 355 of the Constitution and Central may take appropriate step in furtherance of the mandate of Constitution read with this Bill.

Despite the sufficient history and experience, the Bill is loosely drafted and is hit by the mire of internal disputes among the working group. ( Some members resigned in February on disagreements). The argument tken is that the Bill is providing State and National Authorities overblown powers which may hamper Human and Civil Rights of the Citizen of India during the Communal Violence. Whereas the argument seems valid the Bill, if enacted either will go through huge set of amendments or Judicial Activism for the ambiguity or the colorable terms it has.

July 5, 2011

Forget what is said in the statute, go by how Mahatma Gandhi had described the common man---- Supreme Court.

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Yes!!! This is a statement made by The learned Judges of The Honorable Supreme Court in a Land Acquisition case.

In a case, pertaining to Land acquisition by the state for the public purpose, The Supreme Court, stated that, the state was the biggest land grabber, depriving farmers of their livelihood for generations. It has also stated that by taking advantage of the land acquisition law, the state was helping the builders. 'It is anti-people. The apex court bench of Justice G.S. Singhvi and Justice A.K. Ganguly said that farmers' lands were being acquired in the name of public interest and being given to builders to construct luxury houses, which had nothing to do with the requirement of the common man. While interpretation, the learned counsel for the (builders) stated that, the land was acquired for the public purpose and in accordance with the definition of “Public interest”.

By using the provisions of land acquisition Act, the state is misusing the Act in various ways for its own benefit.-Justice Singhvi stated. The pertinent question that arises here is that: When It is the duty of the state to protect its people; it is fulfilling its duty by acquiring land from poor farmers in a very cheap price, and depriving them from their livelihood. This action of government gives no option to poor people, as they were left with two options - either to live in slums or to take recourse to criminal activities for their survival.
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Council for the (developers) argued veraciously stating the action of government and builders as in for “public purposes”, Justice Ganguly wondered whether the houses being built by 'reputed builders' were meant for the common man and to satisfy their needs. As brochures produced by the council, it states to provide swimming pool, ayurvedic massage, parlor and spa, health club, badminton court and commercial center. ……..How far these meant for the common man? Or how many common people can afford to have this …..? When such facilities are provided by the builders after acquiring the land for public purposes, my question here is how far it is justified by the state to acquire land from poor farmers and use it in such fascinating way making poor people to strive for food and shelter…?

When council for (builders) referred to the “public purpose” as defined under the Land Acquisition Act, Justice Ganguly asked the council to forget what was said in the statute but go by how Mahatma Gandhi had described the common man and the spirit of the same enshrined in the constitution…….I must say That the spirit of reality, truth and Justice. And Such decisions and opinions from judiciary bring to the Institution
high respect, high value and dignity.