Overhauling of Epidemic Disease Act, 1897: In the Context of COVID 19

Reading time: 10 minutes.

Recently, various states in India have invoked legislation to curb this menace caused by a novel coronavirus. In this context, this article aims to review the legislation and its significance in the current scenario. It seems that the Epidemic Disease Act of 1897 is an archaic legislation as it came into existence 123 years ago. With the change in era, it is ignoramus of us to still be dependent on this Act. During this crucial crisis, a need is felt for consolidated, holistic, and significant legal provisions to curb the outbreak in India.

This article endeavours to provide the description, specific features or elements, historical outlook, limitations, and the amendments made under the said Act by our Government to tackle the current situation. It also aims to analyse each section of the Act invoked, which is significant for recommendations or any alterations in this discipline.

Also read: Amendment review: Epidemic Diseases Act

Epidemic Diseases Act, 1897

As per the advice of the Health Ministry, in March, the Union Government has invoked the Epidemic Diseases Act, 1897. This Act came into force on 4^th February 1897 when a Bubonic Plague had been discovered in Mandavi (then a part of Bombay, but now in Gujarat) during the nineteenth century, which disrupted daily lives and caused several deaths. Therefore, to prevent its spreading, the then Parliament enacted the said Act, consisting of four sections. Significant sections of this Act are:

• Section 2 which states that the Government is empowered to take concrete actions and stipulate directions if the State is under a threat of any dangerous disease or the ordinary laws are insufficient for the purpose. Section 2A provides the Government with the power to make provisions for the inspection of any ships or vessels arriving or leaving ports and detention of a person who intends to sail or has sailed.

• Section 3 deals with the framework which confers the Government with the power to impose penalties on those who disobey any regulations prescribed by the concerned authority under Section 188 of the Indian Penal Code (“IPC”). Section 188 as defined under Chapter X of IPC, “Of Contempts of the Lawful Authority of Public Servants” states that if any disobedience is caused by a person knowingly, leading to hindrance, annoyance, harm, or injury to any other person then such person will be punished under this section. The First Schedule of Criminal Procedure Code, 1973, considers this offence as cognizable as well as bailable and can be brought to court by a Magistrate.

• Section 4 of the same Act provides protection to the person against any suit or legal proceedings for anything done with bona fide intention under this Act.

Also read: Policy analysis: National Health Mission (NHM)

Limitations of the Epidemic Diseases Act, 1897

This Act had been formulated 123 years ago, and keeping in mind the changes that happened during the recent years, it consists of several limitations. Gradually, principal factors responsible for the mushrooming of diseases have also been modified. For example, nowadays, we prefer to travel by air instead of a ship. The limitation arises here is that it focuses on traveling by ship or vessels and railways rather than airplanes.

As the Act was authorized by the Britishers to control the situation in Bombay, it could be doubted that their real motive behind the enactment of the said Act was to apprehend and seize public gatherings led by the revolutionist.

This Act needs a lot of moderation as with time, most epidemiological concepts have changed, including the precautionary measures undertaken to curb epidemic diseases. Besides, this Act is not in conformity with the recent scientific advancements that we use today to respond to these diseases. For instance, it insists on the isolation or quarantine of patients at home but, is reserved on the scientific methods used to curb outbreaks such as immunization, vaccination, medication, government response towards the disease, setting up a laboratory, etc. It focuses more on the aversion to the spread of the disease rather than to extirpate it. Thus, we need an Act that focuses more on scientific understanding rather than dealing with administrative and policing acts.

The Act refers to a “dangerous epidemic disease”, but does not define it. Criteria are not mentioned to determine how a disease is considered “dangerous” under the said Act and who decides whether a disease is dangerous or not. But the problem still persists; the said Act neither prescribes a situation as when it should be invoked nor does it tell us how to handle a scenario like the present one. It only empowers the Government to pass any guidelines or legislation as it deems fit. Also, it does not provide any directions to the Government for the organization of committees or any special authority which can represent both Central and State Government and can act on its own in a preventive manner without waiting for the Government’s approval.

This Act does not provide any relief and financial assistance to the general public, to sustain their livelihood during a crisis like the present one. Further, it can impose only criminal penalties for its violation rather than imposing both criminal and civil penalties. It also does not protect the healthcare workers, police personnel, or any other person from harassment, abuse, or any injury caused by performing their duties.

Most importantly, it does not protect citizens’ fundamental rights such as, right to privacy which comprises dignity, personal freedom, and liberty. Although there are some reasonable restrictions on fundamental rights in respect of public interest, the legislation does not provide a guarantee against the abuse of privacy right by the State.

Also read: Explained: Epidemic Diseases Act, 1897

Epidemic Diseases (Amendment) Ordinance, 2020

After the approval of the proclamation of an Ordinance by the Union Government, to protect the nurses, doctors, and other healthcare service personnel and their property from attacks and harassment during epidemics, the President had sanctioned this Ordinance, which covers the limitations and flaws in the Act.

This Ordinance enhances the powers of the Union to prevent such an epidemic and seeks to offer protection to medical professionals.Major provisions of this ordinance are:

Section 1A (a), which defines “act of violence” to consist of the following acts committed against healthcare service personnel:

• harassment of such personnel and prohibiting him from discharging his duties,
• harm, injury, or danger to his or her life,
• obstructing him in discharging his duties,
• damage to any property of such personnel.

The Ordinance defines “healthcare service personnel” as the personnel who are at the risk of being impacted by an epidemic while carrying out his duties. They consist of:

• any public healthcare personnel,
• any other person authorized under the said act to avert the epidemic,
• any person declared by the government as such personnel.

It also expands the power of the Union to monitor any bus, train, ship, or airplane, arriving or leaving from any station, port, or aerodrome and detain any person intending to travel by any of these means.

For the protection of the Healthcare service personnel and their property, provisions have been made against those who commit or abet any act against the healthcare community, punishable with imprisonment between three months and five years along with a fine ranging between Rs.50,000 and Rs.2,00,000. If an act causes grievous hurt, then imprisonment will be between six months and seven years along with a fine ranging between Rs.1,00,000 and Rs.5,00,000.

Further, a provision has been made for the time-bound investigation which is to be done within 30 days after the registration of the First Information Report, and inquiry must be completed within one year thereafter. Failure in this regard must be recorded, and a maximum additional period of six months can be granted for the same.

Conclusion

To combat such an epidemic our country has amended this Act to safeguard the life as well as the property of the health service workers. Unfortunately, before this ordinance, no legislation existed to protect the life and property of the healthcare community during the pandemic. Although each State has amended this Act as per their requirements and has their Acts to grapple with the current scenario. There was a need for the single enactment in which all the provisions are assembled so that its implementation can be monitored. It is contemplated that the passing of this Ordinance would bring positive changes to the benefit of the healthcare community, enabling then to perform their duties without any obstruction.

Author: Soumya Nayak, student of National Law University Odisha.

Editor: Astha Garg, Junior Editor, LexLife India.

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Akhil Gogoi Case: Legal Angle

Reading time: 6-8 minutes.

Peasant leader Akhil Gogoi was allowed bail by the Gauhati High Court in three cases held up by the Assam Police, with regard to the protests against the Anti-Citizenship Amendment Act in December 2019. Be that as it may, he will stay in prison for the cases being tested by the National Investigation Agency (hereinafter referred to as the “NIA”). Hearing the bail applications in the three cases enlisted at Chabua Police Headquarters in the Dibrugarh area, Justice Manash Ranjan Pathak allowed bail to the Krishak Mukti Sangram Samiti (hereinafter referred to as the “KMSS”) leader, Akhil Gogoi.

Gogoi’s supporter Santanu Borthakur stated: “Presently he has got bail in all cases, with the exception of the two NIA cases. The conference in one of these two cases will begin in the following barely any days. We trust the court will give bail to him.” The three cases, for which Gogoi was captured on 29 May while he was at that point in prison, were identified with consuming of a mail station, a circle office and a part of the United Bank of India in Chabua during savage protests against the questionable Citizenship Amendment Act.

NIA is investigating two cases, which were at first enlisted at Chandmari and Chabua Police Headquarters, identified with the supposed job of Gogoi in the vicious protests. Gogoi, the guide of KMSS, tested positive for COVID-19 inside Guwahati Central Jail on 11 July and was being treated at Gauhati Medical College and Hospital (hereinafter referred to as the “GMCH”).

Amidst the serious Anti-CAA development, Gogoi was captured on 12 December, 2019, from Jorhat as a “preventive measure” followed by which his three associates were arrested the following day. The four leaders were later captured in various old cases enrolled across various police headquarters in Assam. They have made bail in the greater part of these cases. The unique NIA Court had allowed bail to Gogoi on 17 March in the Chandmari Police Headquarters case, and accordingly to others after the investigating organization neglected to record a charge sheet inside the predetermined time of 90 days.

On 29 May, the NIA documented the charge sheet against Gogoi and three of his partners for dissidence and fear exercises. KMSS leader Bittu Sonowal, who was captured by NIA alongside Gogoi, was allowed bail by an extraordinary NIA Court on Wednesday. Another, KMSS leader Manash Konwar got bail by the extraordinary NIA Court here and he was discharged from the prison on Tuesday. The fourth partner, Dhaijya Konwar, has not yet gotten bail. He, alongside Gogoi and Sonowal, was being treated at GMCH in the wake of testing positive for COVID-19.

Facts of the Case

In Assam that has a background marked by numerous ethnic developments, Akhil Gogoi, 44, has become famous by driving a few tumults in the previous multi decade. His words and activities on issues, for example, large dams, land rights, debasement, unapproved cost doors increased his mass intrigue, however not without welcoming the fury of the decision class.

The current government drove by the Bharatiya Janata Party (hereinafter referred to as the “BJP”) has been especially brutal on him, and has guaranteed that Gogoi, 44, stays in the slammer for quite a while. The worker leader and anti-debasement lobbyist is presently dealing with indictments under the tough Unlawful Activities (Prevention) Amendment Act, 2019 for allegedly inducing brutality during the protests against the dubious Citizenship (Amendment) Act in a joint effort with Maoists, last December.

Gogoi, who tried positive COVID-19 alongside 54 different prisoners of Guwahati Central Jail not long ago, has been moved to the Guwahati Medical College and Hospital following a gigantic open clamour. The State Government was blamed for delaying his test report, even as he continued whining about his bombing well-being. Common society gatherings and resistance groups have been long requesting the arrival of Gogoi, refering to the COVID-19 pandemic. On July 12 and 13, several Assamese understudies from the nation over, just as the scholars’ locale in the state composed separate letters to Assam boss pastor Sarbananda Sonwal, requesting the arrival of Gogoi and other political detainees who were captured during the anti-CAA fomentation a year ago.

Legal Provisions Involved

Gogoi has additionally been reserved under different arrangements of the Indian Penal Code including but not limited to subversion (section 124-A), the discipline of criminal scheme (section 120-B), unlawful affiliation (section 153A) and ascriptions, and declarations biased to national-incorporation (section 153-B). Without a doubt, Gogoi has followed through on an overwhelming cost for his constant promotion of individuals’ privileges.

Moreover, this was not the first run through Gogoi has been charged and captured under such draconian laws. In 2017, the Government of Assam had him captured and charged under different arrangements of the National Security Act, 1980, that permits specialists to confine an individual for as long as a year. Fortunately, the respectable Guwahati High Court had interceded and requested his prompt discharge by holding that the detainment abused his key rights under Article 22 (5) of the Constitution. More than 100 criminal cases have been enlisted against Gogoi, till date.

Critical Analysis

It is important to remind ourselves in contemporary India, that governmental issues make the law as and when required, and even change or replaces them for their convenience. But somewhere in this conundrum, there is a breaking point, where the masses start craving justice. The instance of Akhil Gogoi reaffirms a conviction that while law controls, legislative issues oversee!

Constant detainment of social extremist Akhil Gogoi, through rehashed arrests since December 12 is a significant worry for those of us who have faith in rule of law being a significant part of Indian Democracy. Confronting preliminaries on unmerited charges isn’t new to Gogoi. He has been a social extremist known for battling debasement in high places and in Government, and privileges of workers, jobless and the landless. His ongoing difficulty started with the anti-CAA development in which he had the option to prepare an enormous number of individuals who tested the Bill. The Bill was seen as an endeavor at changing Assam’s demography and in this way, compromising the social character and political privileges of the Assamese (lawful occupants) in their own country.

Between Arrests & Bails  

His detainment has followed when he composed anti-CAA protests in Assam, which in the long run spread to the whole nation. He was captured from Jorhat on December 12, 2019, as a preventive measure while protests were on. On December 13, Guwahati police enrolled a suo-moto body of evidence against him. The Guwahati case was given over to NIA on December 14 and he was reserved him under the scandalous Unlawful Activities (Prevention) Act (UAPA). In any case, they neglected to charge sheet him inside the compulsory time of 90 days and along these lines he was allowed bail on March 17 by the Special Judge, NIA.

Conclusion

Common society has communicated worry about the results of such official strategies for Indian popular government. In excess of 30 individuals including scholars, advocates, senior columnists, authors, activists, previous parliamentarians and others from across India gave an announcement on April 2. The signatories have lamented how the standards of normal justice have been evaded to confine Gogoi in one case after another, rendering particular bail orders ineffective. It was certain that the rehashed arrests of Gogoi, were proposed to empower the government to keep him in guardianship with no preliminaries. Therefore, he has been denied of his entitlement to individual freedom. This act of re-capturing the denounced was used in old cases, when the charge sheets couldn’t be documented in any significant charges. It appears to be an endeavour at going around the process of legal investigation. It obviously is a gross infringement of the standards of normal justice.

The higher legal executives need to intervene, to secure the human privileges of all activists who endure such injustice. Gogoi’s well-being has additionally been falling apart and the prison authorities have not been giving him legitimate treatment. Therefore, the NIA uncommon court needed to arrange a registration and furthermore to designate a clinical board to screen his well-being. In spite of ailment, Gogoi has not been hospitalized and the authorities have been simply making rounds of the Medical College in the late evening when just junior doctors are available. It will be disastrous, if something adverse were to transpire, especially with regard to the ongoing pandemic. The lawful club now needs to watch out for our legal procedure when an active rumored judge says that the laws and legitimate framework are equipped for the rich and powerful.

Author: Kanya Saluja from Institute of Law, Nirma University.

Editor: Astha Garg, Junior Editor, Lexlife India.

Trade Secret Protection in India: An Analysis

Reading time: 8-10 minutes.

Coca Cola is known for its great taste. However, the magic behind this taste is known to very few people. The special formula of Coca Cola is regarded as the world’s best-kept secret. It is kept in a high-security vault at Coca Cola world in Georgia, Atlanta. A similar amount of secrecy is maintained for ingredients of K.F.C, Google Algorithm, Listerine, etc. Such confidential information/formulae/knowledge are known as Trade Secrets.

Trade secrets are the oldest form of intellectual property rights. Under the U.T.S.A (Uniform Trade Secrets Act, 1985), trade secrets could be information, including a formula, pattern, compilation, program, device, method, technique, or process. Article 39.2 of the T.R.I.P.S (Trade-Related Aspects of Intellectual Property Rights) agreement protects trade secrets in the form of undisclosed information. To avail the protection, the information must be secret, have some commercial value and there should be a reasonable effort by a person who is in control of this information, to keep it secret. Trade secret laws usually cover three categories of information: (1) technical information, such as industrial processes and blueprints; (2) confidential business information, such as customer lists; and (3) know-how, such as business methods for efficiency.

Trade Secret Protection in India   

In the absence of a uniform legislation in India, there are mainly two types of protection granted to Trade Secrets: Contractual and Equitable.

Trade secrets are important for running businesses, therefore, it has to be shared with certain employees and sometimes with people outside the organization such as suppliers, franchisees, etc. In both the cases, employers usually rely on “confidentiality clauses” in their contracts with these outsiders. Through this clause, parties are restricted from divulging the information to outsiders. In the case of employees, even after the end of their employment period, they are not allowed to disclose this information or use it for their own benefit. This is done through “non-competition/non-solicitation” clauses. In Desiccant Rotor International Pvt Ltd Vs Bappaditya Sarkar and ors Delhi High Court held that non-solicitation clauses did not amount to restraint of trade, business or profession and therefore would not be hit by Section 27 of the Indian Contract Act, 1872. The Courts have also taken strict views against employees using trade secrets or confidential information which they were entrusted with during the course of their employment, and using it as a “springboard” in the course of their business or career.

Similar restrictions could also be applied to business partners. For example, In M/s Gujarat Bottling Co. Ltd (GBC) and others Vs Coca Cola and Ors., there was a franchise agreement between Coca Cola which allowed the Gujarat Bottling Company (G.B.C) to manufacture, bottle, sell and distribute the beverage, while also restricting its right of dealing with the competitors. The Court held that the restriction, in this case, was for distribution of the goods of the franchiser and that it cannot be considered as restraint of the trade.

In cases where there is no contractual obligation, the courts have relied on common law action of breach of confidence and general rules of equity. In Escorts Construction Equipment Ltd Vs Action Construction Equipment P. Ltd (1998), there was no underlying contract which had been dishonored, but the Delhi High Court granted an interim injunction on the ground of breach of confidence, as the Defendant, who was an ex-employee of the Plaintiff had tried to misappropriate the designs of his ex-employer. The Defendant after serving substantial years in the Plaintiff’s company in a key position, left that company to start up his own entity which manufactured the goods as similar to that of his previous company.   

Further, there are also criminal remedies available to bona-fide owners of trade secrets under Sections 405-409 of the I.P.C (Indian Penal Code) which relate to criminal breach of trust and Sections 417 and 418 of I.P.C concerning cheating. The most widely used civil remedy by trade secret owners is that of the injunction. In the case of unauthorized use of trade secrets, it is quite difficult to ascertain the monetary value of loss incurred to the owner. Hence, the relief of an injunction serves the purpose of preventing the other parties from using the secret in the first place. Despite all these safeguards the US Special 301 Report, 2015 raised concerns about the Indian trade secret protection regime. These concerns were related to the effectiveness in addressing theft of trade secrets in situations where there is no contractual relationship, difficulty in obtaining damages, and lack of sufficient procedural safeguards to protect against disclosure of trade secrets and other confidential information in civil or criminal litigation.

Importance of Trade Secret

The primary distinction between Trade Secret and other intellectual properties is that the former is protected without being disclosed to the world at large. Another important point of difference between them, is that others are allowed to obtain and use trade secrets if it is through legal means, such as reverse engineering, and they will not be held liable for infringing the rights of the owner of trade secrets. So why do people keep their innovation as a trade secret rather than go for patent protection? This depends entirely on the type of invention that needs protection. Sometimes the utility for the invention is likely to last for more than the patent period (20 years in India) and it is difficult to reverse engineer it.

Then there are some inventions whose utility is very less and it is not economically viable to have patent protection for them. There are also some inventions that are not patentable per se. In these scenarios, a business entity would prefer to keep its innovation as a trade secret rather than go for patent protection. Nowadays, companies like to have patented inventions along with know-how (as a trade secret) to enhance the value of the invention by making the working of patents difficult even after the expiry of the patent period. Therefore, trade secret protection has become a major IP issue of the 21st century. As innovation provides a very important competitive advantage to businesses, protecting trade secrets has become increasingly important in their investment decisions and commercial success.

Need for a Uniform Legislation to Protect Trade Secrets

Countries like The United States (US), the European Union (EU), Japan, China, South Korea, Taiwan and others have recognized that effective trade secret protection could be a key competitive advantage and have enacted new statutes to make their trade secret laws more effective. In India, the Central Government introduced the National Innovation Bill, 2008 which had provisions regarding confidentiality of information. However, it was not passed by parliament and subsequently lapsed. The present government has been focusing on greater foreign investments. It is found that there is concern among foreign companies regarding the protection of their trade secrets before doing business in India.

A proper policy and statutory framework can be used to allay these fears. In fact, a coherent policy will also be beneficial for our domestic firms. This will help in giving a boost to the Indian economy which is already in shatters after COVID pandemic and nationwide lockdown. However, the policymakers have to maintain the fine balance between private benefit and social welfare. A strong trade secret law will increase the incentive to keep the new technology confidential, instead of going for patent protection. Without the complete disclosure of the new innovations, the current knowledge in society will remain stagnant and it will also hamper further technological growth. This will go against the fundamental object of Intellectual Property Rights Laws, which allows a temporary monopoly to inventors in lieu of dissemination of knowledge to society at large for the greater public good. Therefore, a national law to protect trade secrets is the need of the hour, but it should not come at the cost of societal progress.

Author: Nishant Mishra, Gujarat National Law University.

Editor: Astha Garg, Junior Editor, Lexlife India.

Analysis: Amish Devgan Case

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Reading time: 8-10 minutes.

The Indian Constitution does not expressly guarantee the freedom of press or media in so many words. However, these freedoms are extended to all citizens, and by extension, to the press, in the form of the Fundamental Right to freedom of speech and expression under Article 19. In Express Newspapers Ltd. V. Union of India, Justice PN Bhagwati opined that, “the liberty of the press is an essential part of the right to freedom of speech and expression and consists of having no restraints.”

Therefore, it can be rightly said that under the Indian law, the media enjoys no special privilege. As a rule, the media has to act in subordination to the larger interests of the community. As Justice Hidayatullah noted in Ranjit Udeshi v. State of Maharashtra,  that “the Press is free to express opinions to change the political and social conditions or for the advancement of human knowledge.”

The Indian criminal justice system expects the media to observe certain norms of behaviour. Simply put, any attempt to breach the sanctity or reputation or existence of State organs, community or individuals shall be punishable under law. For example, Section 124A of Indian Penal Code (hereinafter referred to as “IPC”) relates to sedition; Section 153A of IPC relates to promotion or attempts to promote feelings of enmity or hatred between different classes of the citizens of India and Section 499 of IPC pertaining to defamation. These are the provisions of law commonly invoked, when the media fails to observe the aforesaid norms

Hence, it is often seen that media persons and journalists face criminal actions brought by an offended individual or a group of individuals. The present case pertaining to Amish Devgan is based on similar lines. Amish Devgan, the Managing Editor at News18 India, is facing the brunt of a similar set of offended group. He was made the subject of multiple FIRs after he used derogatory terms to refer to Sufi Saint Moinuddin Chisti during his news programme. Presently, the Supreme Court has issued an interim order extending the protection given to Devgan against any coercive action for allegedly hurting religious sentiments. 

Facts of the Issue

On June 15, 2020, Primetime news anchor of News18 India, Amish Devgan, on his news debate show called ‘Aar Paar’, used derogatory words to refer to Sufi Saint Chisti. During a heated debate on a PIL regarding the Place of Worship (Special Provision) Act, Devgan referred to the revered Sufi Saint, Khwaja Moinuddin Chisthi, also known as Khwaja Ghreeb Nawaz, as “aakranta (attacker) Chishti” and “lootere (looter) Chishti”. This incited waves of fury across the nation. Subsequently, multiple police complaints and FIRs were filed against Devgan in five states. Following this, Devgan made an apology on his show, claiming that he made an unintentional mistake. He also tweeted along similar lines.

It is important to note that the police complaints filed against the anchor invoked Sections 295A (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs), 153A (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony), 505 (Statements conducing to public mischief) and 34 (Acts done by several persons in furtherance of common intention) of IPC.

Devgan has now moved to the Apex Court to enforce a stay on these cases and seeks the quashing of the aforesaid FIRs lodged against him. According to his petition, he had “no intention” of hurting any religious statements and therefore, the FIRs should be quashed as it is a “small issue”. Currently, he has been granted protection against any coercive action.

Legal Provisions Involved

At the core of this case is Section 295A of IPC, which restrains anyone from committing any act which will infuriate the religious feelings of any class. While India has no laws related to blasphemy, the closest variant of it in our country, is Section 295A.

This section deals with ‘deliberate and malicious acts’, which have the intention to enrage the religious sentiments of a class, by insulting the religion’s or its beliefs. Actions for the purpose of attracting this provision, can be spoken, written, by signs or by any visible representation, insulting or attempting to insult a religion or religious beliefs.

Section 295A of IPC

The term ‘malicious and deliberate acts’ needs to be interpreted carefully, as every act which may offend a religious group or class, cannot be said to have been done with the intent to hurt the sentiments of said group.

Critical Analysis

If we focus on the debate during which this incident occurred, it has been noted that there was no prior reference made to Khilji in the entirety of the debate. It is also pertinent to note here, that just before Devgan made those derogatory remarks, a panellist had referred to Chishti as an exemplar of the peaceful spears of Islam in the subcontinent, therefore it is very curious and odd to find out that he confused Khilji for Chishti and why.

It is interesting to note that Devgan has made controversial anti-Muslim remarks and has been accused of biased reporting against Muslims before. In May, Devgan played a video of an altercation between locals during his show and claimed that, “a huge crowd has assembled after namaz from the mosque, wherein the police were manhandled.” However, this was contrary to the facts and a police case was filed against Devgan. He apologised after a few days for making such a mistake.

Previously, in April during another one of his shows, Devgan asked a Muslim panellist to “shut up and sit down” when he told Devgan not to add a Hindu-Muslim angle to the issue. This panellist was then muted.

One of the presiding judges in the present case, Justice AM Khanwilkar as a part of a three-judge bench has made a judgment on the misuse of Section 295A in Mahendra Singh Dhoni v. Yerraguntla Shyamsundar. Herein, the Supreme Court restricted the applicability of this section and excluded casual observations that were not driven by malicious intent. In order to invite penalty, “emphasis shall be made on the calculated tendency of the said aggravated form of insult and also to disrupt the public order.” The Court also remarked that, “insults made towards a religion carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not fall under this provision.”

Section 295A is a controversial provision due to its vagueness and susceptibility to misuse. It can have a chilling effect on the freedom of speech and expression and prima facie seems violative of Article 19(1)(a).

Conclusion

In recent times, there have been several debates regarding the decriminalisation of Section 295A, for various viable reasons. However, we need to balance both sides of this debate and narrow down the purview of this section to make sure it does not become an obstacle to the freedom of expression and of media in our country.

Author: Nikita Prakash from Symbiosis Law School, Pune.

Editor: Astha Garg, Junior Editor, Lexlife India

Law regarding testimony in India

Reading time: 8-10 minutes.

A witness is the person who has knowledge about the crime or accident and that person either voluntarily or in obligation provides testimonial evidence, either oral or written of what he or she knows. The Court can convict the person on the testimony of the witness if corroborated and material to issues. But section 133 of the India Evidence Act, 1872 talks about Accomplice witness, the testimony of the accomplice witness against the accused person shall be a competent witness and the conviction will not be illegal just because it comes from the uncorroborated testimony of an accomplice. An Accomplish is one of the partners in commission of a crime or connected with the commission of crime and admitted the same.       

Supreme Court passed the recent judgment on K. Hasim vs. State of Tamil Nadu that conviction based on uncorroborated testimony of accomplice to the crime is untenable as the same is against the provision of law. While hearing the criminal appeal by the Supreme Court on the Kidnapping and Murder of an ex-MLA of Tamil Nadu assemble filed by the convicts accused. M.K. Balan, an ex-MLA was reported to be missing on 30^th December 2001 by his son and on inquiry by the police the accused were arrested and confessed that they kidnapped and murdered the MLA.

The matter was heard by three judge bench comprising of Justice RF Nariman, Justice KM Joseph and Justice V. Ramasubramanian, following the difference of opinion from division bench on section 133 and section 114 of Evidence Act.

The Supreme Court held that the courts have evolved now and there is requirement of that the accused cannot be convicted solely based on the uncorroborated testimony of an accomplish. The testimony of an accomplish must point the connection of a particular accused. And it was held that accused was convicted in conformity with law by the trial court and no case was made out by the appellants accused and the criminal appeal was dismissed by SC.

Legal provisions regarding testimony

The Indian Evidence Act, 1872 from section 118 to 134, describes about witness, how can testify it and statement which considers as testimony. A witness is the person who has the knowledge about the crime and presented before the court to testify, who has the capacity to understand the questions asked to him with rational answers except tender age, extreme age and mentally disable. Section 118, 121 and 133 of the act defines the capacity of the witness.

Section 133 of The Indian Evidence Act, 1872 talks about the accomplish witness. An accomplish is partner in the commission of crime and turned approver to save his guilt. The Act says that accomplish witness is a competent witness against accused person and conviction if merely based on the uncorroborated testimony of accomplish will not be illegal. An accomplish by accepting his guilt under section 306 of CrPC becomes a competent witness and may examined as other witness. The pardoned accused is duty bound to provide full disclosure of the case and if fails to do so then he will be tried with separate charges and his statement can be used against him. Section 133 read with section 118 illustration which says that the court may presume that an accomplish is unworthy of credit, unless he is corroborated in material particulars

Landmark judgments

• Khokan Giri v. State of West Bengal, AIR 2017 SCC 668

In this case the accused is convicted on the basis of the testimony of the person who had given the statement soon after arrest and turned approver. The Apex court held that an accomplish witness can be a competent witness, but it would not be safe to solely relay on his testimony without corroboration. Such corroboration must connect the accused with the crime and one accomplish cannot corroborate with another, it should be independent and reliable source.    

• Sarwan Singh v. State of Punjab, AIR (2003) 1SCC 240

In this case the accused were convicted on the basis of testimony of an accomplish. The Supreme Court held that the accomplish testimony will be accepted if it satisfied two test. The court gives the double test theory. The evidence provided by the accomplish must show that he is reliable witness, and that test is common to all witness. After satisfying the first test, the accomplish evidence must receive sufficient corroboration. This test is applied in special cases of weak or discredit evidence like that of accomplish.  

• Jnanendranath Ghose v. State of West Bengal, AIR 1960 SCR(1) 126

The issue of corroboration of the accomplish witness was settled by the Supreme Court in this case. The accused was married to Sibapadi but also had an affair with Lila. The accused wanted to get rid of her and he decided to murder Sibapadi. He was assisted by other three accused. And one of the accused turned approver to save his own guilt. The jury found the accused guilty on the evidence of approver testimony which was corroborated with the circumstantial evidence and the accused was sentenced to life imprisonment.

The accused appealed in the High court and Supreme Court, contended that the Jury was misdirected. The Superior Court was of opinion that there was no misdirection by the jury and it was held by the Supreme Court held that corroboration of the accomplish testimony must be independent which connects or tends to connect the accused with the crime. The corroboration need not be direct evidence and sufficient if it is circumstantial evidence of his connection with the crime.

Critical analysis

Two provisions under Indian Evidence Act, 1889 deals with testimony of accomplish witness. Section 114 illustration b, says that the court may presume that an accomplish is unworthy of any credit unless corroborated in material particulars and section 133 of the act says that an accomplish shall be a competent witness as against the accused person and a conviction the accused based on testimony of an accomplish is valid even though it is not corroborated in material particulars. The contradiction of these provisions should be resolved first. The Supreme Court on its verdict in the case of K. Hasim vs. State of Tamil Nadu tries to resolve the confusion between two provisions and said that:

• There must be some additional evidence that make the accomplish testimony true and reasonably safe to act upon.
• The independent evidence should also reasonably connect with the accused and confirming in some material particular that the accused committed the crime.
•  The testimony of the one accomplish cannot be corroborated with that of another but in special circumstances if it is safe to act without the need of corroboration then it would not be illegal.
• The corroboration need not to be direct evidence.

Conclusion

Corroboration is the most important issue with respect to accomplish witness. The rule regarding the corroboration is emerged as rule of practice rather than rule of law. A conviction of an accused on the uncorroborated testimony of an accomplish is legal but at the same time it is not safe also to relay upon uncorroborated evidence as he himself is a criminal and of very lowest character and thus judges must act prudently while considering the uncorroborated accomplish evidence.  

Author: Sameeksha Shukla from School of Law, UPES, Dehradun.

Editor: Silky Mittal, Junior Editor, Lexlife India

Explained: What is a Charge-Sheet?

Reading time: 8-10 minutes.

Recently the Crime Branch of Delhi Police has filed the charge sheet against in the cases related to the recent Delhi Riots which had pushed the city into turmoil. The charge sheet names Sharukh Pathan as the main accused along with 5 others. In this context it becomes particularly pertinent for us to know what a charge sheet is and what are the relevant legal provisions related to it.

What is a Charge-Sheet?

Under Section 173 of CrPC, the police officer is obligated to file a report after the completion of the necessary investigation of an offence. The report is to consist of the of the materials regarding investigation which are collected under Chapter XII of CrPC along with assemblage of evidence and submission as envisaged under Section 173 of CrPC. This report is called the Charge Sheet in common parlance. In simpler words, a charge sheet is the final investigation report submitted by the investigating agencies to the magistrate for proving an offence in the criminal court of law. The charge sheet, also acts as report that informs the magistrate that on investigating the offence sufficient evidence was found for the court to go further in the case and inquire into the offence.

The charge sheet, however, is different from the FIR. The FIR is the document which describes the main offence that took place, the charge sheet on the other hand is the formal police record showing the names of the people brought in the custody, the charges they are brought in for and the identity of the accusers. Thus, the charge sheet marks the beginning of the prosecution proceedings against the accused in the Indian judicial system. The next part mainly deals with some of the relevant parts of Section 173 of the CrPC which as discussed earlier describes the charge sheet.

Legal Provisions Regarding Charge-Sheets

In the case of RP Kapur v. State of Punjab, the court held that the charge sheet should be sent to the magistrate, as soon as the investigation is complete, and there should be no unnecessary delays. In case the investigating officer finds that there is absence of sufficient evidence or the officer finds the offence the accused was complained of committing to be based on false facts, then in such a case the accused is not bound to file the charge sheet. Further, under section 173(2)(ii) of the CrPC, the officer-in-charge of the police station is also bound to inform the informant about action taken by him, in pursuance of the information given by the informant.

On filing of the charge sheet, the magistrate may release the accused on bond under section 173(4), however it must be kept in mind that such release should not be considered as discharge. Section 173(5) describes the situation where if the charge sheet falls under section 170 of CrPC then in such a case the prosecution must send all the relevant documents along with the witness testimony to the magistrate. Section 173(7) further asks the investigating authorities to send the documents mentioned above to the accused as well.

Landmark Cases

In the case of Bhagwat Singh vs Commissioner of Police and Anr. the Supreme Court held that if on the basis of the report advanced by the investigating authority the magistrate decides to drop the case owing to absence of evidence or ground for holding proceeding against the accused on the basis of the F.I.R, then the informant should be given a chance to be heard at the time. But this chance to be heard is more of discretionary nature and the magistrate is not obligated to do so.

In the cases of V.C. Shukla vs. C.B.I., and Jarnail Singh vs State, we can see that the court realizes the importance of charge-sheet. It basically is the last notice sent to the accused in the pre-trial stage, informing him of the offences he is charged with and the penalties that would follow in case of conviction after the trial, thus warning the accused that there is no chance of discharge after this stage.

Critical Analysis

We have seen in the above few paragraphs how the charge sheet forms a really important part of the criminal justice system. The Supreme Court judgements also consider the charge sheet as the point from where the pre-trial stage ends and the initiation of the judicial criminal proceeding which results in either the conviction or the acquittal of the accused. We also looked at the provision of section 173 of CrPC which form the finer details of the legal process behind filling the charge sheets.

Conclusion

The Delhi police filling the charge sheet marks the initiation of the formal judicial proceedings against those involved in the Delhi riots that shook the capital and is one of the shameful instances that should never be forgotten for the lessons they behold.

Author: Eashaan Agrawal from National Law University, Delhi.

Editor: Silky Mittal, Junior Editor, Lexlife India

Explained: What is a Contempt Notice?

Reading time: 8-10 minutes.

This is the remedy granted to Courts as they can sou motu take cognizance of offences of contempt that takes place. The Court can issue a contempt notice by mentioning the grounds of contempt on the basis of which the accused is being held liable. Anything that curtails the freedom of judicial proceedings which leads to hampering the administration of law and interference in the course of justice is known as Contempt of Court. There are various definitions provided by various jurists. Oswald defines contempt as any conduct that brings disrespect or disregard to authority and administration of law or interfere or prejudice parties during litigation. Halsbury defines contempt as words spoken or written which obstructs the administration of justice.

A very recent incident took place on 9^th June when Gujarat High Court bench comprised by Justice Sonia Gokani and Justice NV Anjaria issued a criminal contempt notice to GHCAA President Yatiz Oza as spoke some “Scurrilous” remarks against High Court and its Registry in a live press conference on facebook. Various journalists became part of this press conference where Oza called Hight Court as “Gambling Den” as in his opinion High Court only caters the litigants who have either means or powers. He also mentioned that those advocates who do not have such means or resources will be kicked by the High Court.

During the conference he also said that Registry of High Court adopts corrupt practices as it shows un-due favours to high profile cases, this makes High Court functioning for high profile, influential people. He also said that Billionaires get their cases listed within 2 days whereas poor and non-VIP have to suffer a lot. He highlighted also referred that matters of influential people were heard and orders were granted in 2-3 days while other advocates had to wait for months to get their matters listed. He also mentioned that he had same grievances from over 100 of advocates in this regard. The 2 Judge bench of Gujarat High Court said that he has put false and contemptuous allegations of corruption and malpractices on Registry of High Court and its administration.

Judges further said that without caring of true facts and in the wave of populism he has condemned the institution. He also crossed his limits by giving open challenge to the authority of Court. He being President of GHCAA said such scurrilous remarks without any substantive basis. Due to this these 2 judges suo motu issued a Criminal Contempt Notice under Art 215 of Constitution and Sec-15 of the act.

Legal provisions regarding Contempt Notice-    

Under The Contempt of Court Act,1971-

• Sec 2(a) defines Contempt of Court are of 2 types- Civil and Criminal.
• Sec 2(b) defines Civil Contempt of Court as “wilful disobedience or breach to any judgement, decree, order or other process of Court,
• Sec 2(c) refers to Criminal Contempt means Publication (words or written) of any matter which- i)Scandalizes or lower the authority of any Court, ii)Prejudice or interfere with judicial proceedings, iii)interferes or obstructs the administration of judiciary.
•  Sec.3-9 deals with defences against Criminal Contempt which are listed as-

(i) Innocent Publication and Distribution of Matter; (ii) Fair and Accurate Report of Judicial Proceedings; (iii) Fair Criticism of Judicial Act; (iv) Bonafide complaint against Presiding Officer of a Subordinate Court;

• Sec 12 deals with Punishment for Contempt of Court. It gives powers to Supreme Court and High Court under 12(1) to Punish Contempt of Court with Simple Imprisonment of 6 months or fine upto Rs. 2000 or both;
• Sec 14 deals with Procedure where Contempt is in Face of the Court and also lays down that who should be appointed as judges and when matter is to be heard by Chief Justice.
• Sec 15 deals with Cognizance of Criminal Contempt in other cases and lays down that the Court can take action on its own or under motion made by the person so appointed.
• Section 17 lays down the Procedure After Cognizance- Here it gives the guidelines of proper serving of Notice with all the necessary details and with that notice the Court should also attach necessary Affidavits and documents. Also it gives the provisions for attachment of Accused Property.
• Section 20 lists down the Limitation for Actions for Contempt to One Year.

Under Constitution of India-

• Art 129 and 142(2) gives Supreme Court power To Punish for Contempt itself. Also it makes SC as Courts of Record.
• Art 215gives High Court power To Punish for Contempt itself. Also it makes HC as Courts of Record.

These are various legal provisions on the basis of which a Contempt Notice can be issued. There are various landmark judgements that support this power of Courts.

In the case of Utpal Kumar Das V. Court of Munsifs, Kanpur it was held that whenever Court asks for assistance in an order and so not provided leads to Civil Contempt of Court.

In the case of U.P. Resi. Emp. Co-op., House B. Society v. New Okhla Industrial Development Authority the SC directed Noida Authority to verify details and file the affidavits for allotment of plot. The accused submitted false affidavit to mislead the Court. It was held as a contempt of Court.

In Jaswant Singh v. Virender Singh advocate gives derogative and scandalous remarks on HC judge. It created tendency to scandalize the Court and it was held that it caused interference in Court proceedings and it was held as criminal contempt.

In case of M/S. Gatraj Jain & Sons v. Janakiraman it was stated that if a third party to the contempt petition wilfully disobey the Court order, then he cannot prevent the Court from restoring the contempt petition against him.

In Supreme Court Bar Association v. Union Of India & Anr it was held that the Procedural Aspect of Contempt is prescribed by Parliament to be applicable in SC and HC. It also held that there should be no interference in judicial proceedings and its administration.

In O.P. Sharma v. Punjab and Haryana High Court it was held that advocate is expected to act in sincere manner and should have diligent conduct. Any violation of Principles of Professional Ethics is unacceptable and brings in Contempt Petition.

In case of Dr. Subramanian Swamy vs. Union of India (UOI) constitutional validity of contempt was given. In this case, Constitution was referred and it was held that defamation is also kind of Contempt. This upheld the validity of Contempt.

In P.N. Duda vs V. P. Shiv Shankar & Others it was held that judges cannot use contempt jurisdiction to upheld their dignity. Criticism regarding “Administration” is valid.

In Justice Karnan’s Case, Contempt of court proceeding for accusing 20 judges with corruption charges leads this judge to imprisonment of 6 months. In Hari Kishan vs. Narutham Das Shashtri SC held that private person cannot file Contempt Petition u/s 15 to prevent Courts to be flooded with false accusations and also to avoid personal grudge or interest.

Conclusion

Contempt is said to be an act or omission which tends to interfere the administration of justice. Also anything published (either orally or in writing) that Scandalizes or lower the image of judiciary is also known as Contempt. There tend to be an overlap between Contempt Powers under Indian Penal Code, Contempt of Court Act and Powers of High Court and Supreme Court given under Constitution of India.

There are various laws on point but, The Contempt of Courts Act,1971 lays down provisions that help in attaining protection to the Judicial Administration. According to Article 19(1)(a) it provides for freedom of speech but this is often misused by people at large, these laws act as a limitation to such freedoms. These laws provide redressal from frivolous accusations that are made to lower the image of Judiciary.

These are very well written laws covering each and every aspect that leads to contempt of court. It also provide for discharge from punishment by remitting the award on apology on the satisfaction of court. “Administration of Justice” is to be used in very wide sense by not confining it to the judicial function of judge rather it should include Adjudicatory functions, Administration Functions and other necessary administrative functions. In my opinion Lower Courts should also be provided with the contempt powers.

Author: Madhuresh Chaudhary from Vivekananda Institute of Professional Studies , Guru Gobind Singh Indraprastha University.

Editor: Silky Mittal, Junior Editor, Lexlife India

Quashing of FIR: Legal angle

Reading time: 8-10 minutes.

Introduction

A First Information Report (hereinafter referred to as ‘FIR’) was registered against a Haryana Congress leader, Pankaj Punia, for allegedly ‘hurting religious sentiments’ through a Social Media Post on Twitter. The FIR was registered at Madhuban Police Station in Karnal, Haryana, and several similar complaints were also filed in Uttar Pradesh and Madhya Pradesh. The complaint was filed u/s 153, 295-A, 505(2) of the Indian Penal Code (hereinafter referred to as ‘IPC’) along with section 67 of the IT, for Puniya’s tweet on May 19, 2020. The post targeted the UP’s Aditya Yoginath government and also referred to the Sangh parivaar. The writ petition of the congress leader to get the FIR quashed was dismissed by the Supreme Court by a three-judge bench. The Hon’ble court observed that Punia’s plea for quashing of the FIR against him cannot be entertained under Art. 32 of the Constitution of India. However, the petitioner was granted liberty to approach the appropriate forum or the High Court.

Legal provisions regarding FIR

Although the term ‘FIR’ is not explicitly used in the Criminal Procedure Code (hereinafter referred to as ‘CrPc’), however, any information provided u/s 154(1) is commonly known as FIR. Basically, it is the earliest information of a cognizable offence recorded by an officer-in-charge of a police station. The underlying vision for this provision of documentation of this information is to set the criminal law in motion. The information must be bona fide.

The following are eligible to file an FIR:

1. An aggrieved person or someone on his/her behalf.
2. Any person aware of an offence through an eye-witness or hearsay.
3. The accused himself/herself
4. An SHO on knowledge or information through detailed statement from an aggrieved or injured person.

An FIR should be filed in the police station in the jurisdiction where the offence took place. Witnesses if any could also be informed about.

When can a FIR be quashed?

In simple terms, the quashing of an FIR means ceasing or abating the criminal proceedings which have been set in motion. Usually, it is possible to quash an FIR before the charge-sheet is filed, after that this practice generally discouraged by the Courts. But as per the wide scope provided in Sec. 482 of CrPc, a FIR can be quashed at any stage of the criminal proceedings.

Legal provisions regarding it

Section 482 of CrPC, which talks about the power of courts to quash criminal proceedings, reads as follows:

 “Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice”.

This section empowers the High Court with vide discretionary powers and its use has been debated since long. It should be made sure that these wide powers are exercised with great care and caution. This power is generally used in cases such as dowry etc. but as this tool can also be used to pressurize or extort someone, due care should be exercised in these matters. The purpose of this section is to prevent injustices and secure the ends of justice. The court can use this power to quash the FIR at any stage.  

Landmark judgements

In the case of Lalita Kumari vs. Govt. of Uttar Pradesh [(2004) 2 SCC 1], it was laid down that FIR is an important and irreplaceable document to set the criminal law in motion with an aim to book the guilty and get justice, from the view point of an informant, this cannot be denied to the informant and the police officer is bound to register an FIR when approached. If the police officer denies, a complaint can be made to a superior officer and even the court and an action will lie against him/her.

As regards to the use of Section 482, the High Court has a wide ambit which should be exercised only for meeting the ends of justice and for preventing an abuse of power by any court. This was laid down in the case of Prashant Bharti v. State of NCT of Delhi [(2013) 9 SCC 293].

Furthermore, in 2017, the Hon’be Apex Court elucidated some important points to be considered while exercising the power u/s 482 for quashing a FIR. This was done in the landmark judgment in Parbatbhai Aahir & Ors. Vs. State of Gujarat & Anr. (Criminal Appeal No. 1723 of 2017). A full bench of the Apex Court laid down certain principles regarding this, in an appeal against a decision of the Gujarat High Court. Firstly, it was observed that section 482 does not confer new powers, it only recognizes the powers already inherent. An important observation which was made was that an FIR can be quashed even in the case of a non-compoundable offence. It was laid down that while dealing with a plea that the dispute has been settled, the High Court must give due regard to the gravity of the offence and degree of harm caused.

Moreover, it has been observed that heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed.  

Conclusion

It is very true that there are instances where the power of filing the FIR is misused by the informants and can create trouble for innocent people. Which is why, the right of getting an FIR quashed is necessary and comes under the scope of the wide discretionary powers which are inherent in High Courts. However, to make sure that these wide powers are applied aptly, certain precedents and laid down principles as discussed above must be followed and applied with great care and caution. However, not allowing the power to quash the FIR in cases such as murder and rape is also necessary as these offences have a considerable and serious effect upon the society at large and due investigation becomes necessary.

Author: Aakash Batra from Symbiosis Law School, Pune.

Editor: Silky Mittal, Junior Editor, Lexlife India.

Law regarding contempt of court

Reading time: 8-10 minutes.

The Courts are the ultimate pedestal upon which justice is delivered through the beacon of due process. It is where ideally, inherent respect and acquiescence should arise regardless of the logistics involved in the justice delivery. But as we all know, idealism is just another perspective often confused by reality. While it is believed that justice served must be accepted as it is, that is often not the case, is it? People often have varied opinions that don’t agree with that of the judgment or even the judge. Since the ones who deliver it, become the face of the judgment’s existence, they also often become the subject of both dissent and appreciation. When dissent becomes the fore-runner, it often yields consequences that take the shape of contempt. It might be passive or assertive but is often directed towards the one presiding in the Court of law or certain cases at the Court of law itself. We will further look into various aspects of the prevalent expressions of contempt in court as well as the measures to curb it.

What is contempt of court?

The concept of contempt of court originated from the phrase “Contemptus Curiae” that has been recognized under English law ever since the 12th century. Lord Diplock in the case of Attorney-General v Times Newspapers Ltd [(1973) 3 W.L.R. 298] defined the term contempt of court as:

“Contempt of Court is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or inhibit citizens from availing themselves of it for the settlement of their disputes.”

Contempt of Court is the act of being defiant or disrespectful towards the Court of law including its officers. Such conduct that amounts to contempt must be such that opposes the authority, justice, and dignity of the court. Thus, anything that curbs or impairs the freedom of judicial proceedings hampers the administration of law and subsequently intervenes with the due course of justice, it would be contempt of Court. In India, the concept of contempt of courts had its origin from the then British administration.

The Indian legal system is very much influenced by English law. The roots of this concept can thus, be traced from J Wilmot’s undelivered judgment of 1765. In this judgment, he stated that “the power of contempt was necessary to maintain the dignity of judges and vindicate their authority.”

Relevant legal provisions 

The legal provisions for contempt of court in India are an offspring of the British regime. In 1926, the first Contempt of Court Act was passed to bring about transparency and punishment for contempt. But, this Act did not provide any provisions regarding contempt of courts that were lower to the Chief Courts and Judicial Commissioner’s Court. So, it was later replaced by the Contempt of Courts Act, 1952. This Act, however, did not satisfy people either. It was a prevalent opinion that the existing law on contempt of courts was ambiguous, undefined, and not properly demarcated. Thus, to negate the prevailing doubts a committee was set up in 1961 under H. N. Sanyal, the then Additional Solicitor.

This committee made an all-inclusive examination of the law on contempt and its subsequent problems in the then legal set-up. These recommendations involved the need for protecting the status and dignity of courts as well as an uninhibited process of administration of justice. These recommendations got incorporated in the Contempt of Courts Act, 1971.

Even though there is no explicit definition of contempt of Court but section 2(a) of this Act defines contempt of Court to mean civil contempt or criminal contempt.

• Civil contempt: Section 2(b) defines civil contempt as willful disobedience to any judgment, decree, direction, order, writ, or any other process of a court or willful breach of an undertaking given to a Court.
• Criminal Contempt: According to section 2(c), criminal contempt means the publication of any matter or the doing of any other act which:
• scandalizes or tends to scandalize, or lowers or tends to lower the authority of any court, or
• prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
• interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

The publication can be by spoken or written words, or by signs, or by visible representation or through any other such manner.

Section 3 states that innocent publication and distribution of matter is not contempt. Section 4 provides that fair and accurate report of a judicial proceeding is not contempt. Section 5 states that a fair criticism of a judicial act is not contempt.

Section 10 empowers every High Court to punish for the contempt of its subordinate courts. Punishment for contempt is enshrined under section 12.

Section 14 states that procedure in case the contempt is in the face of the Supreme Court or a High Court.

Section 15 empowers the Supreme Court and the High Courts to take cognizance of criminal contempt.

Article 129 and 215 of the Indian Constitution confer upon the Supreme Court and the various High Courts, respectively, the status of a court of record. With this status comes the power to punish for contempt of itself.  Article empowers the Supreme Court and High Court respectively to punish people for contempt. It is pertinent to note here that powers to punish for contempt under Art. 129 and 215 are not subject to Article 19(1)(a).

Landmark judgments

The legal boundaries as to how contempt of court was to be treated were devised by the various judgments surrounding it as well. Some of them are:

• Surendra Nath Banerjee v The Chief Justice and Judges of High Court at Fort William (P.C. 1888)

 In this case, the Privy Council observed that “a High Court derives its power to punish for contempt from its own existence or creation. It is not a power, conferred upon it by law.”

• Legal Remembrancer v Matilal Ghose [ILR 41 Cal 173]

In this case, the Calcutta High Court explained the distinction between civil and criminal contempt and their fundamental character. Criminal contempt offends the public and consists of conduct that offends the majesty of law and undermines the dignity of the court. Civil contempt consists of a failure to obey the order, decree, direction, judgment, writ, or process issued by courts for the benefit of the opposing party.

• State v Padma Kant Malviya and Anr., AIR 1954 ALL 52

This was one of the earliest landmark cases in which it was opined that the legislation had no power to define contempt of court. Only a court of record could do so. Only such courts had the exclusive power to define and determine what would constitute its contempt. It was also held that the Parliament could legislate concerning substantive law of contempt of the Supreme Court and High Courts subject to the following three limitations:

• Contempt cannot be abrogated, nullified, or transferred to another body, except by constitutional amendment.
• It cannot stultify the status and dignity of the court.
• It cannot impose unreasonable restrictions on the right of a citizen’s freedom of speech and expression.

This had an influence on subsequent cases including Supreme Court Bar Association v Union of India & Anr [(1998) 4 SCC 409] and T. Sudhakar Prasad v Govt. of A.P. and Ors [(2001) 1 SCC 516]. These cases spoke about the court’s constitutional power to punish for its contempt.

• P. N. Duda v V. P. Shiv Shankar & Others, 1988 AIR 1208

In this case, the Hon’ble Supreme Court observed that the judges cannot use the contempt jurisdiction for upholding their own dignity. Our country is a free marketplace of ideas and there can be no restriction in criticizing the judiciary unless this criticism hampers the ‘administration of justice’.

• In Re Arundhati Roy, 2002 AIR (SCW) 1210

In this case, the Apex Court observed that fair criticism on the conduct of a Judge or the institution of Judiciary and its function may not amount to contempt if it is made in good faith and public interest.

Critical analysis

Critically analyzing the legal aspects of contempt of court involves an overlook of how both the legislation and judiciary have influenced the means and modes of treating contempt of court. There can be no doubt that the impetus of contempt jurisdiction is to uphold the dominion and dignity of the Courts of law. It is to ensure that the image of the courts in the minds of the public is in no way simmered down. If by obstinate words or writings, the common man is led to losing his respect for the judge or the Court of law, then the credibility of courts is tumultuously shaken.

It is pertinent to understand the difference that the very essence of law governing contempt protects the seat of justice more than the person sitting on it. The jurisdiction to punish for the contempt of court also borders on two fundamental rights namely, the right to personal liberty and the right to freedom of expression. It is safe to say that the provisions of the Contempt of Court Act, 1971 are intra-vires the Constitution. This is because Article 19(2) provides for reasonable restrictions on freedom of speech. It explicitly states contempt of court as one of the restrictions. But this aspect is still debatable as balancing freedom of speech and expression and distinguishing it from contempt is not an easy line to tread upon. There is no strict jacket test to determine the same. This is because every case has a different set of facts and circumstances and thus cannot be judged based on a strict uniform formula.

It is important to keep in mind that apart from the statutory provisions, the Hon’ble Supreme Court has over the years through its various judgments has established what would form as contempt of court. However, this does not exempt the current legislative framework of its lacunas. More than often, the absolute discretion vested in the courts to determine contempt has been met with criticism. The loopholes regarding discretion need to be attended to.

The judiciary must be efficient enough to distinguish between contempt of court and contempt of judge. The provision for punishments in the legislative enactments should be a last resort and not the priority. The requirement of second opinions of committees or judicial authorities should be encouraged.

It is extremely pertinent for us to understand that the law of contempt is not to provide a cloak for judicial authorities to cover up their inefficiency nor is it to stifle criticism made in good faith against them. This is why it is essential to undertake due diligence while addressing an issue of contempt. Administration of justice cannot be efficacious unless reverence for it is fostered and maintained.

Conclusion

Any action of disregard which impedes the justice delivery system from working constructively must be sanctioned. The object behind such a sanction must be to prevent further indulgence in such activities. The requirement of such law was inevitable and has proved beneficial in the establishment of an independent and impartial judiciary. The existence of such courts must be supplemented with the trust and confidence of the public.

For if the common people lose their faith in the courts, then the courts also lose their meaning. One cannot also ignore the fact that there remains a conflict between contempt of court and the freedom of speech and expression. The borderline between these two concepts often gets blurred and needs to be trodden carefully. Hence, it is at the hands of the judiciary along with the prompt aid of the legislature to maneuver through such obstacles and ensure they uphold the dignity of courts immaculately and ceaselessly.

Author: M. Karnikka from Tamilnadu Dr. Ambedkar law university, School of Excellence in Law, Chennai.

Editor: Shalu Bhati  from Campus Law Centre, Faculty of Law, University of Delhi.

Criminal law: Obscenity

Reading time: 8-10 minutes.

Every day we live through the interpretations of truth that have been created around us. These notions develop a congenital identity that makes us members of society. A certain moral conduct is maintained by the common sense found in the operation of community. Law is an agency that advocates this common sense through policy discourses. Indian culture has experienced significant transition over time. However, given the passage of various rulers and ages, the dominant conservative school of thinking still seems to have reigned over the people, the state and its institutions.

This strict conventional philosophy demarcates society and forces minorities (women, lower classes, backward castes, etc.) into disquiet. Legislations governing society protects collective consciousness and promotes discourses that ensures self-regulation in accordance with these community standards. These standards are based on such a traditional lexicon. Culture, practices, rituals and religion determine the norms of the society that form the laws of the land. It cultivates a feeling of right and wrong facade.

Anything thought to be lacking a sense of discipline and principle values is said to be immoral. Immoral if taken to the next level is called obscene. The word has a very vague definition but finds a place in the criminal laws of most of the nations across the globe.

Criminal Law is the body of law which describes wrongs that are criminal in nature. It defines the offence, regulates the detention, sentencing and prosecution of accused criminals and sets the sentences and treatment relevant to convicted offenders. When dealing with ‘obscenity’ the common question which arises is that “why is obscenity of a criminal nature?” Over the time, scholars have put forth the contention that ‘obscenity’ contains representation in a form that is likely to undermine the stability of a community. The offensive nature of the material is such that it corrupts and depraves its readers or viewers to such an extent that their criminal tendencies get aroused.

The ‘obscene’ content leaves an impression, influential enough to shake his entire emotional and psychological make-up. Obscenity attracts punishment because; from its very nature; it prepares a ground for ‘mens-rea’ required to constitute any criminal offence thereby jeopardizing the moral touch in a society.   The fundamental aim and purpose of criminal law is not only to protect and safeguard the safety and security of primary personal rights of individuals, such as the right to life, the right to body, the right to property, the right to property, etc., but also to protect and safeguard public morality and public respect and to preserve the moral well-being of the State.

Definition of obscenity

In both, language and law, the definition of obscenity is hazy. The Oxford dictionary defines the word obscene as, “offending against moral principles and accepted standards of morality and decency. In other words, in the eyes of an individual, anything is obscene if he/she condemns it strongly and finds it extremely offensive and immoral. It is also defined as an indecent activity directed to shock the moral sense of a reasonable prudent man by a disrespect of morality and respectability. Obscenity is a concept which changes with the passage of time. As the values, society and popular culture evolve, the definition of obscenity changes its meaning. The meaning of obscenity differs from nation to nation and from changes with change in circumstances. Therefore, India and many other nations have devised certain tests to check for obscenity.  

The word ‘obscene’ was introduced into the Indian Legal system by the British. Until the mid-nineteenth century, material which was sexually explicit was not subject to statutory prohibition. The federal Comstock Law of 1873 criminalized the sense of ‘obscene’ or ‘lewd’. The first test devised to check obscenity was the “Hicklin Test.” There lies a very narrow line of difference between the concepts of obscenity and indecency. While the former refers to something which is utterly objectionable according to prudent standards and strongly infringe the principles of morality and respectability, the latter refers to something which is not acceptable in the ordinary sense, but is also not totally grave as ‘obscene’.

Along with societal standards, obscenity changes from person to person. It is similar to the term “beauty”, which does not have a fixed definition but “lies in the eye of the beholder.” For instance, the writings of Sadad Hasan Manto were considered grave and obscene by the readers in the 20^th century but now the readers are fine with it. This does not mean that the words in the writing have changed to become less obscene. It only implies that the framework of vision has changed. This is a clear example of how vague the term obscene is and how it can change with change in culture, thoughts, society and people.

Legal provisions

Under the Indian Law system, ‘obscenity’ is defined and applied under many different statutes.

1. The Indian Penal Code
2. Section 292 – Section 292 of the IPC deals with obscenity and states that a figure or object is considered to be obscene if it is lascivious or appeals to prurient interests such as the tendency to deprave and corrupt a person. In fact, the provision renders it a crime to sell, manufacture, produce, show, advertise, etc. In the case of Raj Kapoor v. Laxman, the Supreme Court stated that movie titles or pictures may also be called as ‘obscene’. The act is not only confined to books and associated readings.
3.  Section 293 – Pursuant to section 293 of the Indian Penal Code, anyone who sells, permits to hire, distributes, displays or circulates to any individual under the age of twenty any such obscenity as alluded to in the last preceding sentence, or offers or attempts to do so, shall be punishable on first conviction with imprisonment of any form for a period of up to three years and with a fine which may extend to two thousand rupees and, in the event of a second or subsequent conviction, with imprisonment for a term which may extend to seven years, and also with a fine which may extend to five thousand rupees. The offence under section 293 of IPC is cognizable and is bailable. It can be tried in the court of any magistrate.  This was given a different angle of approach in the case of Sri Biraj Mandal v. The State of Assam, which involved the case of viewing of content classified as ‘obscene’ by underage individuals of 7 and 9 years respectively.
4. Section 294 – Section 294 sets the penalty for acts of obscenity or words in public. The other sections of the Indian Penal Code dealing with obscenity are 292 and 293. The law does not clearly define what would constitute an act of obscenity, but it would only enter the domain of the State if it were to take place in a public place to the annoyance of others. Traditionally, the art of the Temple or the nakedness of sadhus is beyond the purview of this section. This article exempts ‘obscenity’ in private places from its purview and states that any such activity done is covered by a person’s ‘right to privacy’ and personal liberty. Obscenity and obscene have not been explicitly specified in the Indian penal code. Section 292 of the IPC only states that if any material taken as a whole is lascivious or appeals to prurient interest and tends to deprave and corrupt those who read, see or hear the matter in question; it will come within the ambit of obscenity. In addition, Section 294 of the IPC punishes an individual for committing obscenity in a public place. 
5. The Information and Technology Act also calls for rules banning obscene content in electronic media. Section 67 of the IT Act provides for penalties for the publishing of obscene material in electronic media. It can be remembered that any obscenity in electronic form may only be prosecuted under the IT Act and not under the IPC, since section 81 of the IT Act relates to its overriding influence on certain rules.
6. Sections 2(c), 3 & 4 of the Indecent Representation of Women Prohibition Act, 1986 also deals with the enforcement of these situations.
7. The Cable Television Network Control Act, 1995 forbids the transmission of obscene content on television.
8. In addition, Sections 4 and 5A of the Cinematographs Act provide that films should be reviewed before they are published.

Salient features

The following are the features, exclusive to obscenity:

• that which  depraves and corrupts those whose minds are accessible to such immoral influence
• That which provoke thoughts of the most impure and libidinous kind.
• That which has a powerful propensity to degrade through arousing lustful impulses.
• That which continues to give rise to morally impure feelings.
• That which passes the permissive boundaries of our collective norms.

Since, ‘obscenity’ is a vague term; it does not have any fixed elements or features. Its features and definitions vary from person to person and from culture to culture. It is nearly impossible to enclose obscenity within one single definition. It was for this purpose that various tests were devised to identify obscenity for further punishment.

1. Hicklin Test – The Hicklin test was laid down in English law in the case of Regina v. Hicklin. It is argued that a publication may be judged for obscenity on the basis of an isolated part of the work considered outside the context. When implementing Hicklin’s check, the work is taken out of the whole sense of the job, and it is then found that if the research has some obvious effect over the most susceptible audiences, such as Children and weak adults. 
2. Roth Test – In 1957, a modern criterion was established by the U.S. courts to determine obscenity in the case of Roth v. United States. In this case, it was held that only certain sex-related materials which had the potential of enticing lustful thought were considered to be indecent and that the same could be evaluated from the point of view of the ordinary citizen by introducing contemporary cultural norms. This test was sharper and narrower than the Hicklin test, since it does not isolate the alleged content but limits itself to the dominant theme of the entire material and checks whether or not it has any redeeming social value if taken as a whole.

Landmark judgements

Like many other concepts and conventions, the meaning of obscenity changes from case to case. Some star judgments passed in this context are:

1. Ranjit D. Udeshi v. state of Maharashtra
2. The Supreme Court of India confirmed the allegations of obscenity filed against Lady Chatterley’s Lover and barred its release in India. The judges, however, suggested that the definition of obscenity would shift with the passing of time and that what may have been obscene at one point of time might not be viewed as obscene at a later date.
3. Aveek Sarkar v. State of west Bengal
4. The court concluded that decisions in such cases must be taken in the light of current national standards and not that of a group of sensitive persons.
5. K.A. Abbas v. Union of India
6. The Hon’ble Supreme Court upheld the pre-censorship of material as an exception to the right to freedom of speech and expression. The Court acknowledged, however, that the censors ought to take into consideration the meaning of art when making their judgments. The creative beauty or appearance of an episode robs them of its vulgarity and hurt, and also of what may be socially acceptable and valuable and what may not be.
7. Bobby Art International v. Omphal Singh Hoon
8. In deciding whether or not a item depicted in a film is obscene, it should be viewed in the sense of which that object is being represented and should not be removed from the background. Problem of obscenity in the sense of a film named the Queen of Bandit, ruled that the scenes portraying the film could not be a scene in isolation.
9. Hon’ble court stated that the so-called offensive scenes in the film must be viewed in the sense of the film as a whole and in the meaning that the film tries to communicate to society.
10. Maqbool Fida Husain v. Raj Kumar Pandey
11. Delhi High Court, while dealing with the question of whether a nude painting depicting ‘Bharat Mata’ can be said to be obscene or not. The court responded negatively and proceeded to observe that “nudity or sex alone cannot be said to be obscene.

Critical analysis

In an evolving society that is changing with every passing day, it is wrong to have a fixed standard for identifying a crime that is based on the outlook and acceptance of society. Society is never going to accept murder or rape. But if a director attempts to represent the Phoolan Devi’s sufferings, culture may not have embraced it then, but criticizes the decision today. If a photographer wishes to send a message against domestic violence through the bruised bare back of a woman, the picture must be seen within the context of the message and not in isolation.

The Supreme Court, by eliminating the Hicklin test and retaining the more adaptive Group standards test, has done an excellent job. If society accepts the portrayal of sexual activity on the silver screen, it must not be brought down by the court for the sake of a few sensitive persons. If it is appropriate to society in general, it must also be approved by the judge. Materials may sometimes have content that is not acceptable to society, as frontal female nudity is not acceptable in India, but is acceptable in the United States of America and the United Kingdom. In these cases, we need to look at the bigger context, the meaning being transmitted via the otherwise obscene material. The idea would be positive and helpful to community.

The idea would be positive and helpful to community. People should have the freedom to send a message to society through images / films / paintings / writings that, if seen in isolation, would be considered obscene or lascivious. It’s important to see the full picture instead of squinting our eyes to certain sexually explicit scenes. The Court was justified in protecting the interests of the Creators in Aveek Sarkaar case.

Conclusion

The Indian Courts claimed that the definition of obscenity would shift with the passing of time, and that what may have been “obscene” at one point of time should not be treated as obscene at a later date. It is important to mention here that the appropriate degree of obscenity in cinemas, photos, paintings and literature has not yet been defined in India, and there is still much to think about. It has been claimed that sex and obscenity are not necessarily interchangeable, so it is incorrect to define it as inherently lewd or also pornographic or unethical.

Furthermore, it can not be said with any assurance that a novel, a film or a video is obscene simply because some slang and unconventional words have been used, or there is emphasis on sex and description of female bodies, or there are narratives of emotions. It is also important to remember that the finest drawings, sculptures, songs and dances in the country, the lustrous heritage of India, the Konaraks and the Khajurahos, the exalted epics, the lascivious in the fields, can be destroyed by statute, if prudes and prigs and State moralists lay down definitions for obscenity.

With regard to the material accessible on the online platform, it would be inappropriate to classify the characteristics of the site as offensive solely because the content portrays explicit imagery and derogatory language. Such sexual and vulgar content is no longer an unethical or unacknowledged social feature, but rather represents the current trend.

The petition on content regulation of online platforms was brought before the Supreme Court and a final decision on online content and whether there is any requirement for regulation is expected.   However, as of the date, the online platform is free to provide content, but a proper disclaimer would be a check in favor of the content provider showing efforts to restrict the content to an appropriate audience. 

Author: Tejasi Kulkarni from Symbiosis Law School, Hyderabad.

Editor: Anmol Mathur from Symbiosis Law School, NOIDA.