Retweeting not to Extenuate Defamation

Technology has, without doubt, brought immeasurable relief to humanity but at the same time it has also brought along the store of difficulties and embarrassment if that is not used judiciously. Thanks to technology one can get information from one end of the globe to the other in a few seconds, but it can also cause incalculable damage if used maliciously. Vicious propaganda can be made viral by re-tweeting and sharing of the message emanating from an unscrupulous person.

In a recent case of defamation filed by the Union Finance Minister Arun Jaitley against the present Chief Minister of Delhi and others, the Delhi High Court and the Supreme Court of India have refused to differentiate between the Tweet and Retweet. However, the both Constitutional Courts have not spoken a word about the merit of the case, which has been left entirely to the Trial Court to decide. The factual matrix of the case is that Mr Kejriwal had accused that the Union Finance Minister Arun Jaitley of indulging into corruption as the President of the Delhi and District Cricket Association (DDCA), a post that he held from 2010 to 2013. Mr Arun Jaitley in his complaint case alleged that the accused persons defamed him by saying that the ‘CBI raided the office of the Chief Minister at the instance of Mr Jaitley to locate files related to corruption in DDCA. The name of the Finance Minister Arun Jaitley figured in those files as he was in dock and I was about to order a commission of enquiry.’

‘Why Jaitley Ji so scared of DDCA probe? What is his role in the DDCA Scam’, says another Tweet of Kejriwal.  He made many tweets like, ‘Arun Jaitley had shielded the Delhi and District Cricket Association (DDCA) for over 15 years. There’s corruption worth several hundred crores that has taken place under the very nose of the Finance Minister’. The allegations against Mr Jaitley are very serious. He should either resign or be removed to enable independent enquiry.’ ‘if Jaitley was let off without investigation, on the same basis 2G accused should also be let off. Can Jaitley’s denial in press be taken as gospel truth? These are very serious allegations against him. Why is he running away from investigation?’ Jaitley is the Suresh Kalmadi of BJP’ or ‘Bhakton ka naya naara apna Arun Kamaoo nikla, Kalmadi ka tau nikla”. etc.

 These were retweeted by Raghav Bahl, an Aam Aadmi Party leader. The Trial Court issued summons to him under section 499 of the Indian Penal Code for defamation. Mr Bahl approached the Delhi High Court for quashing the summoning by the Trial Court, which was dismissed. He then approached the Supreme Court of India on the ground that he merely retweeted, which cannot be the defamation. The Supreme Court also dismissed the petition by saying that a person, who retweets cannot a be oblivious to the content of the tweets. 

Mr Arun Jaitley in his complaint said that accused persons individually and collectively undertook a false, malicious and defamatory campaign against him and his family members from an unrelated act of a search conducted during an investigation by Central Bureau of Investigation in the Secretariat of the Govt. of NCT of Delhi. The plea that was taken by Mr Raghav Bahl was that all the communications allegedly made by him were in electronic form, solely covered by the Information and Technology Act, 2000 and not by Section 499 of the Indian Penal Code. Moreover, ‘retweet’ did not amount to publication for the purpose of Section 499 IPC and therefore he had been wrongly summoned under Section 34 of the IPC.

 On the other hand, the counsel for Mr. Jaitley argued that ‘retweeting falls within the ambit of Section 499 IPC by virtue of it being a fresh representation and publication of the original defamatory comment by repeating and endorsing it publicly; that striking down of Section 66A of the IT Act does not affect the right of an aggrieved person who has been defamed and can avail the remedy provided under the provisions of Section 499/500 IPC; that the summoning order against the present petitioner is not restricted to ‘retweets’ only as they amounted to the defamatory imputations.

 The High Court ruled that it is well-nigh settled that the inherent powers being extraordinary in character demand great caution which ought to be exercised sparingly to achieve the underlying object of Section 482Cr.P.C. The High Court, therefore, performs a tripartite function whilst invoking inherent powers under Section 482 Cr.P.C., which includes: firstly, giving effect to the orders passed under the Code; secondly, preventing the abuse of the process of the Court and thirdly, securing the ends of justice. The Court cannot embark upon weighing the evidence and arriving at any conclusion to hold, whether or not the allegations made in the complaint shall constitute an offence under Section 499 IPC punishable under Section 500 of IPC. It is a settled legal principle that the complaint has to be read as a whole in order to determine whether the allegations contrived therein are prima facie sufficient to constitute an offence under Section 499 IPC, triable by a Magistrate.

The counsel for Mr Jaitley argued that the fact that Section 66A of the IT Act has been struck down does not affect the right of an aggrieved person who has been defamed and therefore, will continue to have access to the provision of Sections 499/500 IPC. The next argument of Mr Bahl is that the petitioner has only retweeted the contents of the tweet of the other co-accused and mere sharing of a tweet does not amount to Publication. which is an essential ingredient of criminal defamation; that the petitioner cannot be charged under Section 34 of the IPC as he retweeted much after the original tweet of Mr Kejriwal and that too not in furtherance of the original tweet; that unlike linking or adding unrelated content or making changes it does not add any substantive material related to the alleged defamatory material. The counsel reiterated that the retweet is mere sharing of the original tweet which does not amount to publication.

 On the other hand, the counsel for Mr Jaitley said that ‘The Indian Penal Code makes no exception in favour of the second or third publication as compared with the first, and such an exception would obviously be made a means of defeating the principal provision of the law of defamation. In England it is not allowed to a defendant to prove that a statement, similar to the one for which he is indicted, has been previously published by persons who have not been prosecuted; and the repetition of a common rumour, however prevalent is not received as an excuse for its further promulgation.’

 The High Court observed that Twitter is an online global message broadcasting platform wherein people create, discover and distribute content. This content is in the form of an alphanumeric message comprising of maximum 140 characters in length and is known as ‘Tweet’. Anyone with a valid e-mail id can sign-up on this platform and indulge himself/herself into engaging in conversation with others on the platform via the medium of ‘Tweets’. These ‘Tweets’ are visible to anyone who visits the profile of the creator of that ‘Tweet’. Further, a user who wants to see the ‘Tweets’ of a particular person in his ‘Twitter Timeline’, which is a personalised ongoing stream of ‘Tweets’, can follow that particular person. In this way, the ‘Tweets’ of that particular person can be seen without making an effort of opening the profile of the particular person to see his/her ‘Tweets’. Further, the platform offers a feature known as ‘Retweet’, which the platform claims, the user can use for re-posting of a ‘Tweet’ to share that ‘Tweet’ with their followers quickly. A retweet, in essence, brings the contents of the original tweet into the immediate attention of the followers of the user who retweets.

 Therefore, the High Court ruled that retweeting amounts to be sharing. The summoning order of the Trial Court was upheld as there was no infirmity in its order. Whether retweeting would attract the liability under Section 499 IPC is a question which requires being determined in the totality of the circumstances and the same will have to be determined during trial. This emphatic assertion of the Delhi High Court and the Supreme Court has made it abundantly clear that those who make elaborate use of the modern technology must be circumspect to from landing into unnecessary litigation.

‘Zen and the Art of Motorcycle Maintenance’

My friend Sudhir Kumar made me available the reprint of a nearly five-decade-old book ‘Zen and the Art of Motorcycle Maintenance’, written by an American author Robert M. Pirsig. The title of the book may be weird, but otherwise, it is an absorbing book. It fascinated me for more than one reason. Firstly, the author of this book was an alumnus of the ‘Banaras Hindu University’ (BHU) in the early thirties where I also studied four decades later in seventies. Secondly, it has very deftly handled the intricacies of Buddhism, Hinduism and Greek philosophy. Very few people know the origin of word ‘Zen’ which is derived from Sanskrit word ‘Dhyan’(Meditation), which became ‘Chan’ in China and ‘Zen’ in Japan. One of the bestselling books of the seventies and eighties it has been printed more than forty times.

It essentially contains three books which go side by side. The first part contains the account of a motorcycle trip from Minnesota, mid-western State of the USA bordering Canada in the east to California on the Pacific Coast. The second part deals with the philosophical meditation on the concept of the ‘Quality’ and the third part gives the glimpse of a story of a man who is pursued by the ghost of his former self. Within it, we encounter the allegory of the psychological tension, a lesson in Eastern and Western School of thoughts, a conundrum about the meaning of self, a commentary on the prevailing social and physical land escape of America. Last but not the least some helpful tips on the care and maintenance of the motorcycle.

There are many esoteric questions which have been thrown up in this book like; how do we know what is true and what is not true? What makes us who we are? Can, and should, we work to change our self to fit an idea of what we want to be? Like any other great work, this book frustrates as much as it enchants. It encourages us to question our most basic belief. But there are no easy answers.

The author says that number zero (0), originally a Hindu number was introduced to the West by the Arabs during the Middle Ages which was unknown to the Ancient and Greek Romans. The number zero also shows the absurdity of trying to derive zero from any form of mass-energy as that is nothing but reductio ad absurdum.The author has tried to bring the unification of spiritual feeling and technological thoughts. The division between these two is the root cause of discontent of our age, he says. He offers some heterodox solutions, which may not be appealing to the present generation. Technology has overtaken the meditative thoughts. Nonetheless; the book is gripping and worth reading.

Strong Message to Forum-shoppers and Aberrant Judges

An eminent jurist Benjamin Cardozo has said that ‘the judge is not a knight-errant, roaming at will in pursuit of his own ideal of beauty and goodness.’ Another jurist Felix Frankfurter has said that ‘for the highest exercise of judicial duty is to subordinate once personal pulls and private views to the law of which all are guardians-those impersonal convictions make a society a civilized community and not the victims of personal rule.’

These two quotations are apt in the present circumstances when the judicial discipline was thrown overboard by the Lucknow bench of the Allahabad High Court resulting into the huge erosion in the image of the judiciary. Thanks to the timely and bold intervention of the Supreme Court, the rot that was spreading very fast in the name forum shopping and extracting favourable justice was stemmed otherwise, brokers and blackmailers would have brought further disrepute to the Institution. The controversy arose in the Supreme Court of India when a group of lawyers created an unsavoury effort for impeaching the authority of two judges namely; the Chief Justice of India and Justice A.N khanwilkar. The root of the controversy lies in the medical admission scam or simply MCI scam. In September this year, the CBI arrested a retired judge of the Orissa High Court and five others for allowing a private medical college enrol students despite a ban by the Supreme Court on the same.

According to the CBI investigation, Justice IM Quddusi, a judge with the Orissa High Court between 2004 and 2010, and his alleged accomplice Bhawana Pandey helped the Prasad Education Trust that runs Lucknow-based Prasad Institute of Medical Sciences to enrol students in different courses. The Prasad Institute of Medical Sciences of Lucknow was among 46 colleges barred by the government from admitting students. These colleges were found to have sub-standard facilities and non-fulfilment of the required criteria.Justice Quddusi and Bhawana Pandey allegedly assured the Prasad Education Trust that they would ensure that their matter was settled in the Supreme Court. The CBI said that Quddusi and Pandey roped in a middleman identified as Biswanath Agrawala of Bhubaneswar.

Besides, Justice Quddusi, Bhawana Pandey and Biswanath Agrawala, the CBI also arrested BP Yadav, Palash Yadav (both from Prasad Education Trust) and an alleged hawala operator Ramdev Saraswat.

Agrawala claimed to have contacts with influential people. The CBI seized Rs 1 crore during searches from Agrawala soon after he got the money from Saraswat in Delhi's Chandni Chowk area. The CBI later recovered another Rs 90 lakh from the places owned by him.

The Supreme Court came into the picture after the Prasad Institute challenged the government's decision to debar it from admitting students for medical courses. Some other medical colleges too had filed petitions in the Supreme Court.In August this year, a Supreme Court bench headed by CJI Dipak Misra directed the Centre to review its order to debar medical colleges it found having sub-standard facilities. On August 10, the government heard the arguments of the Prasad Institute. But, it refused to lift the restriction till 2018-19. It also asked the Medical Council of India (MCI) to encash its bank guarantee of Rs 2 crore. The FIR registered by the CBI states that BP Yadav of the Prasad Education Trust contacted Justice Quddusi and Pandey through another person identified as Sudhir Giri of Venkateshswara Medical College of Meerut. The CBI FIR says they ‘entered into a criminal conspiracy for getting the matter settled.’

The Prasad Institute challenged the government order in the SC afresh. However, a few days later, on the advice of Justice Quddusi, the petitioner withdrew the plea from the Supreme Court and moved the Allahabad High Court. The Allahabad High Court provided temporary relief to the petitioner staying the debarment order. It also stayed encashment of bank guarantee by the MCI. The medical college regulator, in turn, challenged the Allahabad High Court order in the Supreme Court. Now, the Prasad Institute also filed a writ petition in the Supreme Court. The CBI says that it is at this point of the legal battle, Quddusi and Pandey roped in Agrawala, who was engaged to influence the judges of the Supreme Court. Most of the accused of the case are out on the bail. 

Meanwhile, the Campaign for Judicial Accountability and Reforms filed a petition in the Supreme Court seeking setting up of an independent probe by a SIT headed by a retired chief justice of India. The petitioner, Kamini Jaiswal, contended that such a probe is urgently needed as it involved charges of corruption in the highest judicial bodies - the High Court and the Supreme Court. The petition was first put up on 8^th of November before the bench of Justice J Chelameswar, who posted the matter for hearing on 11^th November but the petitioner's counsel- Dushyant Dave and Prashant Bhushan- again mentioned the matter on 9^th November once again before the bench of Justice Chelameswar, who agreed to hear the matter.Admitting the petition, Justice Chelameswar passed an order to set up a constitution bench of five senior-most judges of the Supreme Court for hearing the petition seeking a probe by a SIT. The bench also issued notices to the Centre and Medical Council of India.

The petitioner contended that CJI Dipak Misra should not be on the constitution bench as he was on the bench that dispensed with the case relating to Prasad Education Trust in the past. Justice Chelameswar, however, left the matter to be decided by the constitution bench itself.

While Justice Chelameswar was about to pass the order, another draft order was delivered to him. The draft order was apparently issued by CJI Dipak Misra, who listed the same matter in another court.

Justice Chelameswar interpreted the draft order differently. Citing Article 145(3), he observed that the matter relating to the SIT probe can be heard by a constitution bench without the CJI passing a specific order. As per existing practice and law, setting up a constitution bench is the administrative function of the CJI.

The matter took another turn when the CJI set up a seven-judge bench to hear the order passed by Justice Chelameswar bench in the matter of SIT probe. Two of the judges, however, recused themselves from the bench. The five-judge bench annulled the order passed by Justice Chelameswar.

Later the matter was heard by the bench of the Chief Justice and it scathingly attacked the conduct of the judges of the Allahabad High Court by saying that, obviously, the Division Bench of Allahabad High Court had abandoned the concept of judicial propriety by quashing the ban order of the Central Government and the Medical Council of India. More so, when at the time of the withdrawal of the Petition, the Supreme Court had very clearly directed that ‘the High Court, while entertaining the Writ Petition shall not pass any interim order pertaining to the academic year 2017-2018’

The Supreme Court said that, ‘it is as the cloudless sky that the judgement of the High Court shows unnecessary and uncalled-for hurry, unjustified haste and unreasonable sense of promptitude being oblivious of the fact that the stand of the Medical Council of India and the Central Government could not be given indecent burial when they were the parties on record. Such a procedure cannot be countenanced in law.’ The Supreme Court debarred the Institution from continuing the Course and said that although students cannot be fully compensated, yet it ordered the Institution to refund their fees besides paying Rs ten lakh to each. The Court also imposed the cost of Rs 25 lakh on the Institute.

The drama that was played by the Commission for Judicial Accountability and Reforms(CJAR) is saddening and cover it with bad light. Firstly, it made the egregious mistake of filing two identical petitions in the Supreme Court.  One in the name of its member Kamini Jaiswal and other in the name of the CJAR itself. Secondly. It pressed the immediate hearing of the case, which should not have Chief Justice Dipak Misra on the bench. It amounted to eroding the authority of the Chief Justice, who is the master of the roster and has got the sole right to constitute the Bench of the Supreme Court. Another bench consisting of Justice R. K. Agrawal, Arun Mishra and A. M. Khanwilkar heard the petition of Kaman Jaiswal and dismissed with scathing comments on the conduct of the concerned advocates. The second petition was also dismissed but this time a hefty cost of Rs 25 lakh was imposed on the CJAR for its misadventure of forum hunting and tarnishing the majesty of the judiciary.

There is no doubt, that those who are in the Judiciary particularly in the higher judiciary, which includes Bar and Bench both must conduct themselves in the manner, which could serve as the role model for others and instil the unshakable faith in the institution of justice.

Ban on Surrogacy Bazar

 Parmanand Pandey

Filmmaker Karan Johar has made us all aware how ecstatic he is at having become the father of twins born to a surrogate mother. As a single father, he would have been well aware that there is a Surrogacy Regulation Bill pending in parliament which, once passed, will make his actions illegal and even fetch him a 10-year jail term. Johar, and other celebrities like Aamir Khan and Shah Rukh Khan who also have children born through surrogacy, are fortunate since the proposed bill, due to be passed shortly, would have branded them as criminals. In fact, the bill is not just draconian, it flies in the face of Article 14 and 21 of the constitution which guarantees “equality before the law and equal protection of laws to all” and “protection of life and personal liberty of all persons”.

The Surrogacy Regulation Bill proposes a blanket ban on commercial surrogacy and restricts ethical and altruistic surrogacy to legally wedded infertile Indian couples who have been married for at least five years. The husband must be between 26 and 55 years and the wife, between 23 and 50 years. Overseas Indians, foreigners, unmarried couples, single parents, live-in partners, gay and lesbian couples are barred from commissioning the services of a surrogate mother. Only a married blood relative, who must have herself borne a child and is not an NRI or a foreigner, can be a surrogate mother, but only once in a lifetime. Indian couples with biological or adopted children are prohibited from having children through surrogacy. Commercial surrogacy will result in a jail term of at least ten years and a fine of up to Rs 10 lakh.

EXPLOITED AND MISUSED

In India, surrogacy has certainly been exploited and misused but the proposed Bill is like throwing out the baby with the bathwater, literally. Surrogacy has thrown up many contentious questions of law and ethics. There are innumerable examples when children have been born through niyog, a type of surrogacy. However, with the development of medical science, surrogacy has assumed the form of a bazaar leading to the exploitation of poor, illiterate women, mostly from rural backgrounds. Women are often persuaded to participate by their spouses or middlemen to earn easy money but they have no rights when it comes to a decision regarding their own bodies.

Ideally, the state cannot interfere in the prerogative of any person to have children, naturally or through surrogacy.

Surrogacy is of two types: altruistic and commercial. A woman who bears a child for her infertile sister or a mother who gives birth to her infertile daughter’s child is altruistic but when a woman allows her womb-on-rent, it becomes commercial surrogacy. India had become the hub of “surrogacy tourism” for nearly two decades and to curb it, the cabinet approved the Surrogacy Regulation Bill, 2016, yet to be enacted into law by parliament. The bill is still being examined by a parliamentary standing committee and is likely to be finalised soon. Had this bill become an act, Karan Johar and others of his ilk like Tusshar Kapoor, Shah Rukh Khan and Aamir Khan would have been in trouble.

The Supreme Court has also been flooded with a bunch of petitions seeking direction to make representations before the parliamentary committee. They want inclusion of specific provisions and so far, the Court has ruled in favour of only one of the petitions. What could inspire legal challenges is the fact that the proposed law is very stringent and flies into the face of the two articles mentioned in the constitution earlier.

STATE INTERFERENCE

Therefore, restricting conditional surrogacy to married Indian couples and disqualifying others on the basis of marital status, sexual orientation and age do not qualify the test of equality. The right to life includes the right to reproductive autonomy like those of procreation and parenthood. Hence, ideally, the state cannot interfere in the prerogative of any person to have children, naturally or through surrogacy. Infertility cannot be a prudent condition to undertake surrogacy an Alternative Reproductive Technology. Barring of foreigners to prevent the misuse of surrogacy could prove to be counterproductive because the yardstick governing domestic altruistic surrogacy could lead to corruption and exploitation, pushing surrogacy into unethical hands and leading to an underground abusive trade in surrogacy.

What happens to the family of the surrogate mother if she loses her life in the process of childbirth?

Once altruistic surrogacy is legalised, there is no proof that it will not lead to a commercial market. If it is legalised, then a woman will bear a child as laid out in the contract and the black market will certainly develop. Another question which is often asked is whether altruistic surrogacy is more humane or is it just like trafficking. The distinction between altruistic and commercial surrogacy is, in fact, very thin because in both cases, a woman is reduced to a “container or vessel”. Instead of having an existential and spiritual experience, the woman’s pregnancy is made to serve others.

There are many more issues which have not been addressed in the proposed bill such as what would be the rights of the child if the adoptive parents reject it midway or after birth or if the surrogate mother faces health issues during and after pregnancy. What happens to the family of the surrogate mother if she loses her life in the process of childbirth? Why should those who have married late in life wait for five years till they can opt for surrogacy? What about single women who don’t want to marry but want to be mothers nevertheless. Surrogacy agreements are made under the Indian Contract Act of 1872 and other applicable laws, but in practice, they are often violated. The proposed Bill, once enacted, is certain to open a Pandora’s Box.

Video Recordings to end the Opacity in the Courts

      It is an oft-repeated saying that ‘sunlight is the best disinfectant’. There is no denying that transparency in every sphere of life works like auto-cleaner while the opacity breeds suspicion and corruption. It is, therefore, indeed laudable that the Supreme Court has taken up the cause of transparency in the right earnest by directing the audio-video recording of the court proceedings across the country.  The benefits of video recordings will far outweigh the disadvantages and bring order and solemnity to the proceedings. It has been a long-standing demand of the people throughout the country that the proceedings of the court should be recorded to ensure good conduct of the advocates and the judges.

         It may be mentioned that the Chief Justice of India and the Prime minister have already spoken about the setting up of e-courts in the country as a method of reducing pending litigation and introducing transparency. There are several systems of e-courts that are successfully functioning in other countries. One major benefit of this system, which could be introduced even in our existing system, is the transcription of court proceedings, which can be recorded electronically verbatim and transcribed instantly. The transcripts can be made available to the parties of the proceedings at the end of the day. There are serious advantages of this system for all - the judges, lawyers and parties to the litigation. Since every word of the arguments gets recorded, transparency and clarity are inherent. This brings ease when a case is taken in appeal or an order is up for review. Counsel too benefit by having details of arguments recorded for the next day's preparation in the case. The litigants have complete clarity on their case even if not present in court. A win-win for all. With the availability of technology, this system would be an excellent way to introduce E-Systems. 

        Video recording of the proceedings is a path-breaking and tectonic change in the functioning of the Indian courts. Although Section 327 of the Criminal Procedure Code already provides that ‘the place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court to which the public generally may have access’. The second part of the same section says for the in-camera trial of causes related to rapes.  Therefore, this direction of the Supreme court is the major extension of the procedure that is laid down in the Criminal Procedure Code. It is here the technology will come into full play for the enormous benefit of the people.  Till now the general public and others have been depending on the sketchy and many times lop-sided reporting of the proceedings by the media. This has also caused a number of times consternation among the people, advocates and judges.

        One observation of the Supreme Court bench consisting of Justice Adarsh Kumar Goel and Justice U.U. Lalit will go down in the history in golden letters that ‘there is no privacy in the court, what comes to the court is all public’. The Judges, in the course of the hearing, also said that constitutional courts in other countries have already the provision of audio and video recording because it is not a matter of the privacy of the judges. Citing the example of the Supreme Court of United States of America the bench said that their proceedings are also available on the ‘YouTube’.

        The beginning of the end of opacity, in fact, started on 28^th March this year when the Supreme Court directed that at least two districts in every State and Union Territory shall install CCTV cameras at important locations in court complexes. Later in the next date of hearing the Court further observed that ‘the Supreme Court and the High courts are the courts of the records being the constitutional courts, therefore, everything should be recorded as long as it does not impede the proceedings’. The Court said that though our earlier direction was to install CCTV cameras in two districts in every State/Union Territory, with the experience now gained, it is desirable that CCTV cameras are installed in all courts. 

       Pursuant to the direction of the Supreme Court the Union Law Ministry swung into motion and it found to its pleasant surprise that fifteen High Courts of the country have already implemented it and other High Courts are in the process of installing the CCTV cameras. The Additional Solicitor General Ms Pinky Anand, who appeared for the Central government produced an affidavit setting out the progress made in this regard. It reveals that most of the fifteen high courts that replied have followed the Supreme Court’s direction to set up CCTV facilities in at least two districts, and are using a phased approach to do the same in other districts. In addition to these High Courts, as many as nine tribunals, including the NCLAT, TDSAT, CAT and IPAB, also responded with progress on the issue. Nine high courts – those of Bombay, Gauhati, Jammu & Kashmir, Jharkhand, Kerala, Orissa, Madhya Pradesh, Meghalaya and Uttarakhand – are yet to respond.

        In spite of the open court hearings, the reporting of the court proceedings has been a zealously guarded affair. The to and fro between lawyers and judges, the submission made by the advocates and questions asked from the bench and reply there too given by the advocates have hitherto been beyond the eye of the camera or the ear of a recorder. Hence it will be, without doubt, a paradigm shift in the Supreme Court reporting. It may be noted here that only a few years ago, the proceedings of the Parliament and various legislative assemblies of the country were not within the reach of the common man of the country. Only the accredited correspondents were allowed to see the proceedings of the legislatures for report purposes. The general public could enter the halls of the legislatures and Parliament only by visitors’ pass issued on the recommendations of the Members of Parliaments or MLAs. But after the availability of the proceedings of the Parliament and Legislatures on television, it has become wide open to the whole world. The general public can now know as to what is being done by their elected representatives and is free to form its opinion about the performance of the Government and the opposition on the basis of the audio-visual recordings which are available on the television, computer or mobile screens.

        There are, however, many practical difficulties which may come in the way of recordings and the airing of the proceedings of hundreds of courts across the country. In case of Parliament, there are only two Houses which can be easily televised directly. But in the case of the televising the court proceedings, it will not be possible through one or two exclusive channels for showing the court proceedings. For example, as on today, there are fifteen courts in the Supreme Court of India. It will be unimaginable to beam the proceedings of all courts. Similarly, there are 28 High Courts in the country having hundreds of courtrooms making it well-nigh impossible to televise their proceedings. So, a different mechanism has to be found out. One of them is to have an archive of the recordings and appoint a group of editors to look into the cases which are worthy to be televised and take a decision accordingly.

         It hardly needs to be emphasised that audio-video records of the court proceedings will remove all doubts and apprehensions of the people with regard to happenings in the court and it will be immensely useful for the students, teachers and advocates of the court.   Although, a group of lawyers is of the view that recording of proceedings should not be made a spectacle because arguments might get more favoured for the cameras than for anything else, nevertheless for overwhelmingly large number of lawyers it would lead to public education helping in the formation of public opinion.

Murder of Arushi Remains an Enigmatic Mystery

There are some criminal cases, which remain deeply etched in the public memory for a long time to come. These cases evoke enormous interest and shake the conscience of the public. People feel fear, horror, brutality, mechanism, conspiracy and execution associated with such criminal cases. In criminal law, two components are necessary to prove the guilt of an accused person. One is mens rea i.e. intention behind the crime and the other is actus reus i.e. execution of the crime.

 This must be proved in the court of law by the evidence which may be circumstantial or based on the last scene theory or supported by the statements of indubitable eyewitnesses. In all such pieces of evidence, the link must be made complete. However, if there is any doubt in completing the missing link then the benefit of it always goes to the accused because the criminal law follows the principle that even if hundred criminal go scot free but an innocent person should not be punished.

 There are many cases criminal cases which have been perpetuated in the public memory by the media coverage. For example, the Nanavati case of Bombay (it was not a Mumbai then), which shook the entire nation. A decorated Naval Officer Nanavati had murdered a businessman Prem Ahuja, who was in the illicit relationship with his wife Sylvia. Many films have been made and books have been written on this sensational murder case. 

Another horrendous case of rape and murder recent times was that of a young para-medical girl, Nirbhya, in the year 2012. That generated a tsunami of anger throughout the country and the Government was forced to enact laws ensuring the safety and security of women and also quick disposal of such cases to meet the ends of justice to some extent. 

In the same category falls the murder mystery of Arushi, a 14-year-old teenager of NOIDA. Her parents, Rajesh Talwar and Nupur Talwar are Dentists. It attracted the attention of the whole country because of the wide and sustained media coverage.  Apart from Rajesh and Nupur Talwar, their servant Hemraj was also living in the flat. On the fateful day of 15 May, the family had dined together.

 After some time Aarushi went to sleep. On the morning of the 16th May 2008, Bharti Mandal, a maidservant rang the doorbell but when no one responded from inside she went up the staircase leading to the terrace of the flat to fetch the bucket and mop kept there. While coming down she found that no one had opened the door, she put her hand on the outer grill door, but it did not open, then she again pressed the doorbell on which Dr. Nupur Talwar opened the innermost wooden door and started talking to her. She asked Bharti Mandal where had Hemraj gone, to which she expressed her ignorance. Dr. Nupur Talwar then told her that Hemraj must have gone to fetch milk from mother dairy after locking the inner iron mesh door from outside and she told her to wait till Hemraj returned. Thereupon Bharti Mandal asked Dr. Nupur Talwar to give her key so that she may enter the house after unlocking the inner iron mesh door on which Dr. Nupur Talwar told her to go to the ground level and she would throw the key to her from the balcony. While Bharati Mandal was going down Dr. Nupur Talwar picked up a cordless phone and dialled Hemraj's mobile no. The call got connected but got disconnected after a couple of seconds. When Bharti Mandal came down Dr. Nupur Talwar told her that the door was not locked but only latched from outside. Thereafter Bharti Mandal climbed up the staircase and when she put her hand on the outermost iron grill door it opened and thereafter she unlatched the middle iron mesh door and stood there. She heard Dr. Rajesh Talwar and Dr. Nupur Talwar weeping on which she suspected that some thief had broken into the house. When Bharti Mandal inquired from her why she was weeping, Dr. Nupur Talwar asked her to come inside and see what had happened. Then Bharti Mandal came with Dr. Nupur Talwar inside the flat and stood outside Aarushi's room Dr. Nupur Talwar pulled the bed sheet with which her daughter was covered on which she saw that her throat was slit. She became frightened. Dr. Nupur Talwar told her to see what Hemraj had done. It appears until that time no one was aware that Hemraj was also lying dead on the terrace.

Within hours of the discovery of Aarushi's body, the flat was swarming with people, the policemen, the press, family friends, curious strangers descended on the Talwar's home.  The Police were informed, which arrived at the scene of the incident and started an investigation. Arushi was found dead in her bed with signs of sharp-edged weapons on her neck. The needle of suspicion revolved around Hemraj, who after committing the murder of their daughter was missing but when his body also found, then the mystery got further deepen. The Allahabad High Court found the chain of circumstances to be grossly incomplete and broken and said that ‘the circumstances of the case do not lead to the irresistible conclusion that the appellants alone are the perpetrators of crime in question and on the evidence adduced in this case certainly two views are possible; one pointing to the guilt of the appellants; and the other to their innocence and in view of the principles expounded by the Apex Court, we propose to adopt the view which is favourable to the appellants.’  We hold that the prosecution has failed to prove its case against the accused beyond all reasonable doubts.’ Therefore, they stand acquitted.

 The scathing attack of the trial judge by the High Court is certainly quite a new trend in the judgement and beyond any justification. In its diatribe against the trial judge, the High Court has said that ‘the learned trial Judge has prejudged things in his own fashion, drawn the conclusion by embarking on erroneous analogy conjecturing to the brim on apparent facts telling a different story propelled by vitriolic reasoning. Thus, basing the finding of conviction without caring to see that it is a case based on circumstantial evidence things cannot be presumed and stuffed in a manner like the present one by adhering to self-created postulates then roam inside the circle with all fanciful whim. The learned trial Judge took evidence and the circumstances of the case for granted and tried to solve it like a mathematical puzzle when one solves a given question and then takes something for granted in order to solve that puzzle and question. But the point is that the learned trial Judge cannot act like a maths teacher who is solving a mathematical question by analogy after taking the certain figure for granted. The learned trial Judge has aberrated and by dint of fallacious analogy and reasoning has surprisingly assumed fictional animation of the incident as to what actually took place inside and outside the Flat, and like a film Director, he has tried to thrust coherence amongst facts inalienably scattered here and there.’ 

Certainly, such recalcitrant mindset in interpreting facts vis-a-vis circumstances of the case and evaluation of evidence ought to have been shunned. Consideration of merit should be based only on evidence and circumstances apparent on the record, crystallizing the truth in substance and alluding to the certainty of the decision, backed up by reasonable analogy and scrutiny by the trial Judge as that alone would always be the best approach while deciding a criminal trial, said the High Court.

However, the million-dollar question remains that who killed Arushi? Will this enigma be ever solved?

Acquittal of rapists on weird grounds will set bad precedents

     

Two recent judgements of Delhi and Punjab & Haryana High Courts resulting in the acquittal of accused persons, convicted by lower courts in rape cases, have created aflutter across the country. While the Delhi High Court has acquitted a high-profile filmmaker Mahmood Farooqui, who came into limelight for his film ‘Peepli Live’, which was themed on sensationalism in journalism. He was convicted by a lower Court of Delhi for raping a 26-year-old American researcher on the night of 28^th March 2015. The logic for the acquittal of the accused filmmaker is highly unsettling because it has said that a ‘feeble no’ from the victim could a consensual one. The Punjab and Haryana High Court has even gone to the extent of shaming the victim by saying that she happens to be of ‘promiscuous character’.

The Delhi High Court says, ‘instances of woman behaviour are not unknown that a feeble ‘no’ may mean a ‘yes’. If the parties are strangers, the same theory may not be applied, if the parties are in some kind of prohibited relationship, then also it would be difficult to lay down a general principle that an emphatic ‘no’ would only communicate the intention of the other party. If one of the parties to the act is a conservative person and is not exposed to the various ways and systems of the world, mere reluctance would also amount to negation of any consent. But same would not be the situation when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts. In such cases, it would be really difficult to decipher whether little or no resistance and a feeble ‘no’, was actually a denial of consent.

Judgement reads like a fiction, which elaborates that the victim has come to the house of the accused on his invitation. Both the victim and the accused consumed liquor in varying measures. The accused was displaying highly emotional behaviour in a drunken state. Somebody else was also to join them in the drinking session but he did not turn up. The victim’s inherent motherly love started overflowing towards the accused. Then the accused expressed his desire to make love with her. The victim initially says ‘No’ but ultimately goes along. In her mind, she remembered the case of Nirbhaya, a hapless girl who was brutally raped and killed and succumbed to the desire of the victim. She even made a mental move of feigning orgasm so as to end the ordeal and participated in the act. After completing the act, the accused asked her to do it again. In the meantime, the privacy was disturbed with the ringing of the doorbell and the arrival of the two associates of the appellant. The questions which arise are whether or not there was consent; whether the accused mistakenly accepted the moves of the victim as consent; whether the feelings of the victim could be effectively communicated to the accused and whether mistaking all this for consent by the accused is genuine or only a ruse for his defence. At what point of time and for which particular move, the accused did not have the consent of the victim is not known.

To answer the aforesaid questions, it would be necessary to see what the word “consent”, especially in relation to sexual activity, connotes. In normal parlance, consent would mean voluntary agreement of a woman to engage in sexual activity without being abused or exploited by coercion or threats. An obvious ingredient of consent is that, as consent could be given, it could be revoked at any time; rather any moment. Thus, sexual consent would be the key factor in defining sexual assault as any sexual activity without consent would be rape. There is a recent trend of suggesting various models of sexual consent. The traditional and the most accepted model would be an “affirmative model” meaning thereby that “yes” is “yes” and “no” is “no”. There would be some difficulty in a universal acceptance of the aforesaid model of consent, as in certain cases, there can be an affirmative consent or a positive denial, but it may remain underlying/dormant which could lead to confusion in the mind of the other. The sermon of the Court on and says that ‘in an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean ‘yes’ in case of yes or ‘no’ in case of no. Everyone is aware that individuals vary in relation to expositing their feelings. But what has to be understood is that the basis of any sexual relationship is equality and consent. The normal rule is that the consent has to be given and it cannot be assumed. However, recent studies reveal that in reality, most of the sexual interactions are based on non-verbal communication to initiate and reciprocate consent. Consent cannot also be analyzed without taking into account the gender binary. There are differences between how men and women initiate and reciprocate sexual consent. The normal construct is that man is the initiator of sexual interaction. He performs the active part whereas a woman is, by and large, non-verbal. Thus, gender relations also influence sexual consent because man and woman are socialized into gender roles which influence their perception of sexual relationship and expectation of their specific gender roles with respect to the relationship. However, in today’s modern world with equality being the buzzword, such may not be the situation’.

         There is yet another aspect of the matter which has caught the attention of this Court. The wife of the appellant had a chance to read the communication between the victim and the accused and after coming to know about the alleged incident, she had corresponded with the victim wherein she had informed her that the accused had been under a rehabilitation regimen for his ‘bipolar mental condition’. The victim rubbished such an explanation by stating that the occurrence had to do more with the physical power of the accused than the mental condition. Though the mental condition of the appellant may not be a ground to justify any act which is prohibited under law, the same can be taken into consideration while deciding as to whether the accused had the correct cognitive perception to understand the exact import of any communication by the other person. Under such circumstances, the benefit of the doubt is given to the appellant.’ This is bizarre logic and it has shocked the conscience of the legal community.

The Punjab and Haryana High Court, which acquitted three persons, who were convicted for having raped a woman at Sonipat is equally disturbing. It is a well-established principle of the criminal jurisprudence that the benefit of doubt is given to the accused when his/her crime is not proved beyond all reasonable doubts but here in the case the court has not only acquitted the accused persons but damned the victims by quoting her statements from examination like, ‘it is correct that room was got booked by me at my own expense and I had also taken a pack of cigarettes, Viagra and condoms along with me’ and then goes on saying that ‘it is actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world’. It further condemned the allegations of the victim to be an act of blackmailing.

The Court went on to say that ‘the testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters and these factors would, therefore, offer a compelling reason to consider the prayer for suspension of sentence favourably particularly when the accused themselves are young and the narrative does not throw up gut-wrenching violence, that normally precedes or accompany such incidents’.

It is strange when there is growing awareness for the gender sensitisation these judgements have dealt a severe blow to victims by letting off the accused on such grounds as are not found at all in substantive or procedural criminal law.

Constitution Countenances Ban On Cow Slaughter

  For the last nearly a fortnight, the Central Government’s new Prevention of Cruelty to the Animals Rules have led to heated debates and agitations in many states particularly by those, who wish to fish in the troubled waters as they have their own axes to grind. Rules do not say anything about beef eating or not eating but effectively prohibit the sales of cows and buffaloes for slaughter at animal markets. While the Kerala High Court out-rightly dismissed the Petition filed against the implementation of Rules, the Madras High Court has given four weeks’ time to the Central government to clarify the doubts raised by the Petitioners. Thus, apart from political turmoil, legal and constitutional fault lines have also been opened.

         Cow slaughter has always been an emotive issue. The matter was discussed and debated at great length in the Constituent Assembly. Many freedom fighters had promised that the first goal of the Swadeshi government would be to impose a ban on cow slaughter. In 1940, a special committee of the Congress had also opined for the protection of cows. In fact, Mahatma Gandhi had once declared that a prohibition on cow slaughter was more important to him than swaraj itself. The proponents of the cow protection law in the Constituent assembly included Seth Govind Das, Pandit Thakurdas, Shibban Lal Saxena, Ram Sahai and Raghu Vira among others. Just a few days before the India got Independence Babu Rajendra Prasad, who later became the President of India, wrote a letter to Pandit Jawahar Lal Nehru saying that “I have been flooded with postcards, letters, packets and telegrams making demand that cow slaughter should be stopped by legislation. The Hindu sentiment in favour of cow protection is old, widespread and deep-seated. The Hindu feeling on account of recent happenings is very much agitated and this movement… is bound to gain strength more rapidly than we can imagine.”

       In fact, it was the religious argument that rooted the ban on cow slaughter in the reverence attached to the cow in the Hindu culture. The economic argument was based on the multifarious utilities of the cow in an agrarian economy – the medicinal value of urine, usefulness of cow dung, hides and bones etc.  Pandit Thakurdas, a prominent leader from Punjab and a vociferous advocate of the ban on cow slaughter opined that ‘the best way of increasing the production (of food crops) is to improve the health of human beings and breed of cattle, whose milk and manure and labour are most essential for growing food. Thus, the whole agricultural and food problem of this country is nothing but the problem of improvement of cow and her breed.’ On religious plank he emphasised that, ‘our ancient sages and rishis, realising her(cow’s) importance, regarded her as very sacred. Here in this land Lord Krishna was born, who served cows so devotedly that to this day, in affection he is known as ‘Makhan Chor.’ In all, they brought forth two strands of argument – religious and economic.

       A Muslim member of the Constituent assembly Zahir-ul-Hasan Lari also supported the ban on cow slaughter and said that ‘If the House is of the opinion that slaughter of cows should be prohibited, let it be prohibited in clear, definite and unambiguous words… I submit that this is the proper occasion when the majority should express itself clearly and definitely.’ The ban on cow slaughter was thus put under 48 of the Constitution, one of the Directive Principles, which would guide the State in policy making and not as the part of the enforceable and justiciable fundamental rights. Needless to say, that fundamental rights inhere only in human beings not in the animals.

        Article 48 of the Constitution reads: The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle.’ There is no doubt that Article 48 was adopted as a compromise formula and the many members of the Constituent Assembly like Shibban Lal Saxena vehemently opposed to such back door tactics and told the Drafting Committee of not being ashamed of providing for the ban on the cow slaughter frankly and boldly.

         Way back in 1958 in ‘Mohd. Hanif Qureshi and others vs State of Bihar’ this issue was agitated before the Supreme Court. Bunch of petitions were filed against the Bihar Act, which prohibited the slaughter of cattle. The petitioners were Kasais (butchers) who contended that the Act infringes their religious rights to slaughter the cow(s) on Bakr-e-Eid and also hits at their profession. The Court ruled that after giving careful and anxious consideration to the pros and cons of the problem and in view the presumption in favour of the validity of the legislation, we feel that we must approach and analyse the problem in an objective and realistic manner. So, we have reached the conclusion (i) that a total ban on the slaughter of cows of all ages and calves of cows and calves of she-buffaloes, male and female, is quite reasonable and valid and is in consonance with the directive principles laid down in Article 48,  (ii) that a total ban on the slaughter of she-buffaloes or breeding bulls or working bullocks (cattle as well as buffaloes) as long as they are as milch or draught cattle is also reasonable and valid and (iii) that a total ban on the slaughter of she- buffaloes, bulls and bullocks (cattle or buffalo) after they cease to be capable of yielding milk or of breeding or working as draught animals cannot be supported as reasonable in the interest of the general public.

         The judges said that the ban on slaughter of she-buffaloes, breeding bulls and working bullocks (cattle and buffalo) which are useful is reasonable but of those which are not useful is not valid. The question as to when a she-buffalo, breeding bull or working bullock (cattle and buffalo) ceases to be useful and becomes useless and unserviceable is a matter for legislative determination. It is, therefore, not possible to apply the doctrine of severability and uphold the ban on the slaughter of she- buffaloes, breeding bulls and working bullocks (cattle and buffalo) which are useful as milch or breeding or working animals and strike down the ban on the slaughter of those which are useless. The result is that we uphold and declare that the slaughter of cows of all ages and calves of cows and calves of buffaloes, male and female, is constitutionally valid and slaughter of she- buffaloes, breeding bulls and working bullocks (cattle and buffalo), without prescribing any test or requirement as to their age or usefulness infringes the rights of the petitioners under Article 19 (1) (g) and is to that extent void.

       Later, the Supreme Court in State of Gujrat vs Mirzapur Moti Quereshi Kasab Jamat(2005) further elucidated the definition of other cattle by  observing that,  ‘having specifically spoken of cows and calves, the framers of the Constitution  chose not to catalogue the list of other cattle  in Article 48 and felt satisfied by employing a general expression other milch and draught cattle, which in their opinion any reader of the Constitution would understand in the context of words ‘cows and calves’.

 There is hardly any doubt that the thousands of cattle were being smuggled to Bangladesh via Nepal from India for their slaughtering under the garb of trade. These rules framed under the Prevention of Cruelty to Animals, which allows sale of cattle from one farmer or breeder to other will deal with severe blow to the beef traders. And, therefore, naturally they will make hullaballoo against the new rules. Legal aspect is absolutely clear in view of the catena judgments of the Supreme and other High Courts but will the government be able to withstand the political onslaught that it is going face in the Monsoon session of Parliament is to be seen.