HELLO U.P. POLICE – CRITICISM IS NOT SEDITION
Uttar Pradesh Police few days back have registered an FIR against Congress IT Cell Head Ms. Divya Spandana for twitting an offensive photo of Prime Minister of India Shri Narendra Modi wherein it is shown that Shri Narendra Modi is painting his own portrait and the Word “Chor” is written on the forehead of Prime Minister Modi. The FIR has been registered under Section 67 of Information Technology Act, 2008 which provides “Punishment for publishing or transmitting obscene material in electronic form” and Section 124 A of Indian Penal Code dealing with “Sedition”. The photograph of Prime Minister Modi on the twitter was posted by Ms. Divya Spandana in the light of allegations of Congress Party against the Prime Minister Modi alleging corruption and favouritism in the Rafale Fighter deal.
Before proceeding further on the legality of the FIR, one thing which is very clear and apparent on the face of it is the downward trend of Indian Political discourse. The Politicians, cutting across political lines, have forgotten the civility while attacking each other democratically. In fact a careful perusal of political discourse will reveal that Politicians have degraded themselves and their opponents without any demur. The political opposition has become dirtier and abusive wherein both Ruling as well as Opposite Parties are to be blamed for this downfall.
But then, I ask myself whether the photograph and the writing on the photograph (without justifying it) constitutes a criminal offence under Section 67 of Information Technology Act, 2008 and Section 124A of Indian Penal Code ? Do I disagree with the entire approach of Uttar Pradesh Police? Though the said photograph along with the writing is abusive, but certainly being abusive, does not make you seditious. According to Black’s Law Dictionary, abuse means, “A departure from a legal or reasonable use; misuse” or “physical or mental maltreatment”. On the other hand, dissent means, “A disagreement with a majority opinion” and “holding or expression of opinion at variance with those commonly or officially held. Before proceeding further let us see the both the sections in dispute.
“Section 67 of The Information Technology Act, Section 67 Punishment for publishing or transmitting obscene material in electronic form. – Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees. ”
“Section 124A of The Indian Penal Code:
124A. Sedition. – Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, 10 [***] the Government established by law in 11[India],12 [***] shall be punished with 13 [imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1. – The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2. – Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3. – Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”
A bare perusal of both the section in the light of issue involved concludes that Section 67 of IT Act is derived from the Act which is allegedly seditious. Thus in simple terms, a seditious act is one where photo of PM Modi was published on twitter. Thus the alleged offence is the picture along with word written with the picture and then uploading it on the twitter page. Thus allegation of sedition is corner stone and therefore let us understand if the said act amounts to Sedition ? If the act is not sedition as provided u/s 124A, then even S-67 of IT Act fails in the present case.
If literal reading of Section 124A dealing with Sedition is made out, then in that case, any opposition to any mass leader will automatically become Sedition and this can be beginning of the end of democracy. In fact, the moment you make a criticism of a mass leader, which is not liked by his/her follower, then certainly, it can lead to disaffection and can cause excitement against the mass leader. However, dissent, as provided in Section 124A of The Indian Penal Code, can only be against the Government Authorities and by the yardstick of current FIR, anything and everything against any of the ruling parties, may amount to dissent. After all in the present case, the act of criticism is against an office bearer of government. Therefore, the question, whether the act of portraying Prime Minister the way it was portrayed by Congress IT Cell Head Divya Spandana is an offence under Section 124A ?
It is to be noted that right to speech and expression is a fundamental right and time and again the Hon’ble Supreme Court of India has held that this right needs to be strongly protected. In fact, on number of occasions, the Hon’ble Apex Court has held that ‘making a strong criticism of the Government is not even defamatory, let alone seditious’. The act on the part of Congress IT Cell Head Divya Spandana by writing the word “Chor” on the forehead of Prime Minister on the twitter account is ramification of what the Congress Leaders are arguing; day in day out, in the political phase. No doubt, the Hon’ble Apex Court has held that Section 124A of the Indian Penal Code has constitutional validity. However, the Hon’ble Apex Court has also added on number of occasions that one person can be prosecuted under Section 124A of the Indian Penal Code only if his acts caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace. These ingredients are missing as far as the subject matter in hand is concerned. In fact, these ingredients are missing in entirety in the present case and it is necessary that such ingredients have to be strictly complied with in each and every case, Otherwise, it may lead to a situation where even a genuine, bonafide opposition may not find its place. Let us not forget that a citizen has a right to say or write whatever he likes about Government or its measures, whether it is by way of a criticism or comment. However, what is important is that such criticism should not incite people to violence against the Government established by law or with the intention of creating public disorder.
The Offence of Sedition is characterized in Chapter VI of Indian Penal Code which deals with offences against the “State”. The law to that effect is colonial era law and was meant to protect the imperial powers from any criticism and certainly this was the section, which was used, misused and abused maximum to curtail the freedom movement by the colonial power. The same section cannot be used to silence the public information or information/criticism of a major political party though it may not be in a good taste. Let’s not forget that Article 19 (1) (a) of the Constitution, which talks about freedom of speech and expression is a fundamental right. This guaranteed right is subject to the right of the Legislature to impose reasonable restrictions. However, the said right talks about the expression “Government established by law” and thus the critics of PM Shri Modi cannot be dissent u/s 124A even if it is defamatory.
A careful perusal of the view of Hon’ble Supreme Court of india over the years reveals that to attract Section 124A of The Indian Penal Code, it is necessary that the Act should have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it and thus writing or saying something against the Prime Minister, though defamatory, cannot be called dissent. In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term ‘revolution’, have been made penal by the section in question. But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to “Government established by law” is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.
It’s time Uttar Pradesh Police focuses on genuine grievances of its people and protecting the life, property and liberty of its people, both from anti-social elements as well as fake encounter, rather than making an issue out of political mudslinging. Somehow while writing this article I can’t forget the famous quote of Richard j. Daley – ‘The Police are not here to create disorder, they are here to preserve disorder’.
September 2018
This Petition is founded on the 74th Constitutional Amendment; and for its enforcement in letter and spirit. The fundamental philosophy reflected in the aforesaid amendment was, and is, de-centralization of power and empowering citizens through participation in local self-governance. The “Legislature” having discharged this onus by amending the Constitution for enabling functioning of true democracy; the “State’s Executive” has failed and or neglected to carry out faithfully the intent of the amendment by giving lip service to the amendments so that there is neither de-centralization, nor empowerment of people; with the result that the Petitioner is compelled to approach the “Judiciary” with a prayer for issuing an appropriate Writ, Order or Direction to the “Executive” at the National and State Level for exercising its authority and power for giving effect to the 74th Amendment to the constitution of India. Failure to exercise jurisdiction vested in “State” or an Authority, which is “State” for the purpose of Article 12, warrants use of Extra Ordinary Powers vested in this Hon’ble Court, and the present Petition is made in that hope.
Petitioner Submits that 80% to 85% quality of life of citizens in urban India depends on the quality of services provided by municipal authorities’ i.e Respondent No. 3 in Mumbai. The local bodies are not ready and have shown marked unwillingness to provide efficient services on account of a variety of reasons, including the failure to hold regular elections, prolonged supersession’s, unaccountable/non-transparent system & processes, deployment/creation of multiple agencies in having overlapping functions, state government’s interference and inadequate devolution of funds etc. As a result, Urban Local Body has failed to perform effectively as vibrant democratic units of governance including local self-governance. The Petitioners are filing the present Public Interest Litigation ensuring correct and proper interpretation and implementation of the 74th Constitution Amendment not only in letter but also in its spirit due to complete failure and/or neglect shown by Respondent Nos. 2 and 3 also in giving effect to the mandatory provisions for Community Participation as per Model Nagar Raj bill under JNURM, while framing Sections 50 TT, 50 TU, 50 TV, 50 TW, 50 TX of the Mumbai Municipal Corporation Act, 1888 and to reconstitute the Ward Committees not only in letter but also in spirit of the 74th Constitutional Amendment Act, 1992 in the City of Mumbai.
The Petitioner No.1 is “Loksatta Movement”, a Non-Profit and civil society movement registered with Office of Registrar of Societies, Hyderabad under Registration No.4963 of 1997 dated 6th October, 1997. Amongst various efforts for political and governance reforms, one of the objectives of the Petitioners is to make governance institutions truly transparent, accountable, responsive and efficient at all levels for creation of a suitable environment for effective democratic functioning leading to greater human happiness index and to ensure self-corrective institutional mechanisms of governance. The approach on one hand is by advocating various political/governance reforms to various governments, political parties, parliamentarians, legislatures and government institutions etc, on the other hand by building public opinions/movement as and when required through various public campaigns including round table conferences, seminars & public meetings. The Petitioner No.1 undertakes and craves leave to produce the copy of its Certificate of Registration and Memorandum of Association as and when called upon to do so.
Petitioner No.2 is “Foundation for Democratic Reforms”, a Non-Profit and voluntary association registered with Office of Registrar of Societies, Hyderabad under Registration No.5741 of 1996 dated 6th October, 1997. The primary objective of the Petitioner No.2 is the welfare of the general public at large. It is primarily a research organization in the field of political and governance reforms. Petitioner No.2 is recognized by D.S.I.R., Government of India as “Scientific & Industrial Research Organisation” The following are some of its office bearers:-
The Petitioner No.2 undertakes and craves leave to produce the copy of its Certificate of Registration and Memorandum of Association as and when called upon to do so.
The Petitioner No. 3 took birth and registered as a political party under Section 29A of The Representation of the People Act, 1951 with the Election Commission of India (ECI) vide proceedings No. 56/152/2006/J.S.III, dated 22nd December 2006, out of a Non Governmental Civil Society Organization “Loksatta Movement” registered in the year 1996. Ten years work as a reform movement led us to believe that unless the vicious cycle of vote bank, muscle power, money power and dynastic politics is brought down, the ethical politics & good governance will remain dream despite India attaining Independence in the year 1947. Thus Loksatta Party seeks to promote and establish a platform for ethical politics by dismantling Vote Bank, Money Power, Muscle Power and Dynastic politics across India. Lok Satta Party will take long time to break this vicious cycle and therefore the party growth will be slow and incremental. The seekers of ethical politics will require determination, long term vision & sense of balance. Keeping this in mind Lok Satta Party is slowly but surely becoming a platform for those who strongly believe in politics as a noble endeavor to serve people. The Petitioner No. 3 undertakes and craves leave to produce the copy of its Registration document and constitution as and when called upon to do so.
The Petitioners takes the PIL route through judiciary as the last resort & after exhausting all other advocacy efforts like successful PIL for cancellation of 2G licenses in honorable Supreme Court, all in the interest and welfare of the general public.
In fact, in the aftermath of tragic failure of governance, depicted by the famous deluges of Mumbai on 26th July, 2005, and seeing the need of making Mumbai governance effective, accountable and transparent, more than 50 NGOs came together under the leadership of Petitioner No.1, with research work done by petitioner number 2 and launched the famous “Vote Mumbai Campaign”. The contours of Vote Mumbai Campaign were as under:-
The Petitioners undertake and crave leave to produce, refer to and rely upon the details of the PILs filed by them as well as the compilation of material including PPT, video recordings, news reports etc with regards to Vote Mumbai Campaign as and when called upon to do so.
The Respondent No. 1 is the Union of India, through its urban development department. The Respondent No. 2 is the State of Maharashtra through its Urban Development Department. The Respondent No. 3 is the Local Municipal Corporation in charge of providing basic civic amenities/services to the public in the city and more particularly implementing the duties specified in the Mumbai Municipal Corporation Act, 1888. Respondent No. 4 is the principle officer of Respondent No. 3 and responsible for execution & monitoring the service provided and works done by the Respondent No. 3. The Respondent Nos. 5 to 8 are major political parties governing State of Maharashtra and BMC from time to time. All the Respondents will be parties directly affected by the outcome of this petition.
DECLARATION AND UNDERSTANDING OF THE PETITIONERS:
It will be seen that the voter is nowhere in the picture in the above diagram. He does not elect the “Mayor”, he does not elect the “Commissioner”, and he has no place in the “Ward Committees”. Except electing the Corporator once in five years, he has no role to play. Where is the self-governance? The Corporators themselves have very little control over the governance, if governance means ensuring efficient delivery of services. In addition, if other agencies work on their agenda independently, the Corporators are as helpless as the voters, who elect them.
INCORPORATION OF SECTION 50 TT IN THE MUMBAI MUNICIPAL CORPORATION ACT
In pursuance to the 74th Amendment, in 1994 Section 50 TT was incorporated in the BMC Act, 1888. Section 50 TT reads as follows:
Wards Committees
50TT. (1) The Corporation shall constitute not more than twenty five Wards Committees each comprising such contiguous wards as may be decided by the Corporation.
(2) Each Wards Committee shall consist of—
(a) the Councillors representing the electoral wards within the territorial area of the Wards Committee ;
(b) the Ward Officer incharge of the territorial area of the Wards Committee ;
(c) such number of other members, not exceeding three, nominated by the Councillors referred to in clause (a), from amongst the members of recognised non- Government Organisations and community based organisations engaged in social welfare activities working within area of the Wards Committee :
Provided that, such persons are registered as electors in the Wards within the jurisdiction of the Wards Committee :
Provided further that, the norms for recognition of the non-Government Organisations, the requisite qualification for nomination as members and the manner in which they are to be nominated shall be such as the State Government may, prescribe.
(3) The duration of the Wards Committee shall be co-terminus with the duration of the Corporation.
(4) The elected Councillors referred to in clause (a) of sub-section (2) shall at the first meeting of the Wards Committee in each official year, elect from among themselves the Chairperson who shall hold office until the first meeting in the next following official year.
(5) The Chairperson of the Wards Committee shall be deemed to have vacated the office as soon as he ceases to be a C Councillor.
(6) In the event of the office of the Chairperson falling vacant before the expiry of its term, the Wards Committee shall elect a new Chairperson :
Provided that, the Chairperson so selected shall hold office so long only as the Chairperson in whose place he is elected would have held office if such vacancy had not occurred.
(7) The functions of the Wards Committee shall, subject to the general supervision and control of the Corporation, be—
(a) speedy redressal of common grievances of citizens, connected with local and essential municipal services like water supply, drainage, sanitation and storm water disposal;
(b) to consider and make recommendations on the proposals regarding estimates of expenditure pertaining to the wards under different heads of account of the budget before being forwarded to the Commissioner ;
(c) to grant administrative approval and financial sanction to the plans for municipal works to be carried out within the territorial area of the Wards Committee costing upto rupees five lakhs provided that specific provision exists therefor in the budget sanctioned by the Corporation.
(d) to make recommendations in regard to water supply, solid waste management, sewage disposal, drainage, storm water management, sanitation works and development scheme and to take periodical review thereof, to enlist people’s participation in the voluntary activities necessary for successful implementation of the developemental activities of the Corporation, to ensure maintenance of parks in the ward and to recommend for appropriate budget allocation to each electoral ward.
(8) Notwithstanding anything contained in sub-section (7), the Corporation may by a resolution, delegate to a Wards Committee such other powers, authority and functions as it may deem fit and expedient.
(9) The Wards Committee shall meet at least once in a month at the Ward Office.
d. Each Ward’s Committee consists of – Several councilors (Average fourteen), The AMC of respective administrative ward, Such number of other members, not exceeding 3, nominated by the councilors in the ward’s committee, from amongst the members of recognized non-government organizations and community based organizations engaged in social welfare activities within the area of the Ward’s Committee.
Petitioners further state that seeing the decay in urban governance and misinterpretation of 74th amendment by various state governments, in the year 2005 Union Government launched Jawaharlal Nehru National Urban Renewal Mission (JNNURM). The main aim of this Mission is to encourage reforms in the city’s governance in the India and to focus on efficiency in urban infrastructure and service delivery mechanism, community participation and accountability of Urban Local Bodies (Municipalities) towards citizens. Petitioners state that for availing aid under JNNURM, it is one of the mandatory condition for the states to enact the Community Participation law i.e. Model Nagar Raj Bill. (Hereto annexed and marked Exhibit “F” is the copy of the Model Nagar Raj Bill, 2005 prepared by Government of India Ministry of Urban Development).
10. THE SECOND ADMINISTRATIVE REFORMS COMMISSION- 6TH REPORT
Infact, the Second Administrative Reforms Commission was entrusted with the task to examine in detail the issues relating to rural and urban local governance in India with a special focus on the need for real democratic decentralization in the country in order to usher in genuine grass roots democracy as envisaged by the founding fathers of our republic and as now specifically mandated by our Constitution. The Sixth Report of the Second Administrative Reforms Commission deals with common issues of local governance those are relevant for both rural and urban areas. With regards to Urban Local Bodies, the commission’s report reflects misinterpretation and wrong implementation of ward’s committee constitution in Mumbai. The report clearly in its Para 5.2.2.4 provided for the recommendations. Hereto annexed and marked as Exhibit “G” is the concerned paragraph of 2nd ARC 6th Report.
The Petitioners state that it can be clearly seen that the issues raised in this PIL have been a matter of concern for which recommendations were given way back in 2007 and specific recommendation regarding Constitution and Functioning of Ward’s Committees and Area Sabhas have been made. The Petitioners crave leave of Hon’ble Court to refer and rely on the Second Administrative Reforms Commission’s Sixth report as and when produced before this Hon’ble Court.
11. INCORPORATION OF SECTIONS 50 TU, 50TV, 50TW, 50TX IN THE MUMBAI MUNICIPAL CORPORATION ACT- PENDING NOTIFICATION
Section 50 TU reads as under
“The State Government shall by Order published in the Official Gazette, determine-
12. Experience of local self governance in Mumbai through informal platforms Local Area Management (ALM).
It is well known that numerous non-political groups, NGO’s and civil society organizations have worked closely with the civic body in the fields of, though not limited to, education, public health, urban amenities, art and culture, heritage conservation, etc but all through informal platforms, without authority/power from time to time. The experience is mixed. Wherever citizen gets self motivated, are pro-active, gets engaged despite repulsive governance system, those Corporator wards have shown better results. However in absence of legitimate local self governance, even those wards have not been able to reach the best of quality of services. Juhu, Colaba and Bandra areas/wards are some of the examples where citizen are self motivated. It is therefore easy to understand that effective and legitimate local self governance platforms for citizen participation will revolutionize the local governance in Mumbai by making system more transparent/accountable on one hand and by making citizen more accountable on the other. A win-win formula.
Petitioners state that State of Kerala and West Bengal has created Wards Committees in more effective manner as compared to State of Maharashtra (Mumbai Municipal Corporation). (Hereto annexed and marked as Exhibit “I” is the copy of structure of Wards Committees in the State of Kerala and West Bengal). The Petitioners submits that though the Kerala and West Bengal model are not in tune with letter and spirit with 74th Constitutional Amendment Act, they are more effective compared to state of Maharashtra. The Petitioner submits that even Hon’ble High Court of Karnataka as well as Hon’ble High Court of Andhra Pradesh has given direction concerning Ward Committees and Area Sabha’s from time to time. Hereto annexed and marked as Exhibit “I-1” are such newspaper reports available online.
The Petitioners declare that the facts pleaded in the petition are gathered from their self research, local sources, internet and other secondary sources.
All the residents of the city of Mumbai, where basic civic amenities have become a bone of contention.
The Petitioner had made representation to Hon’ble Chief Minister of Maharashtra and Hon’ble State Finance Minister and Mumbai City Guardian Minister as well as heads of various political parties in Maharashtra. (Hereto annexed and marked as Exhibit “J” collectively are the copies of the letter written by Petitioner to Hon’ble Chief Minister of Maharashtra and Hon’ble State Finance Minister and Mumbai City Guardian Minister in 2008).
However neither the State Government nor the elected MLA’s were/are ready to empower citizen as it seems there is a financial and otherwise vested interest in controlling the municipal activities and thereby petitioner is forced to seek redressal through this petition. The Petitioners have also presented their suggestions with regard to urban local governance and required reforms to all the concerned authorities as stated above. However, the authorities have not paid any attention to the same. Hereto annexed and marked as Exhibit “K” is the suggestion as put up by the Petitioners.
The Petitioners state that the issue involved in this Public Interest Litigation is proper interpretation of the 74th Constitutional Amendment Act, 1992 and further implementation and formation of Ward Committees, which provide for better administrative system and therefore, there is no delay on behalf of petitioners in filing the present Public Interest Litigation.
The Petitioners have not received a notice of Caveat till date from any of the Respondents.
Introduction: A former employee of Hon’ble Supreme Court of India made allegations of sexual harassment against the Sitting Chief Justice of India, Shri Ranjan Gogoi, in her Affidavit which she sent to all the Judges of Hon’ble Supreme Court of India. The Affidavit sent on April 19, 2019, has created a furore across the Nation at the time when the Nation is in the grip of Parliamentary Election 2019.
Allegation of Complainant: According to the Complainant, the alleged incident happened on October 10 and 11, 2018 and thereafter, the woman was dismissed from her services and even her husband and two of her brothers-in-law were suspended from services allegedly on the frivolous ground and flimsy reasons. Thereafter, the woman was arrested in a case of alleged bribery, that was registered in March 2019 and the said bribery case is now shifted to Crime Branch. While the charge of bribery has been made against the woman, there is no charge against the briber who is the complainant against the woman. The woman who is currently out on bail, claims that the case is fabricated. The woman who has made alleged sexual harassment against the Sitting Chief Justice of India Shri Gogoi is about 35 years old. The woman has provided her detailed account of how she allegedly faced sexual harassment and other kinds of harassments by the sitting Chief Justice of India. The woman was working at the Chief Justice Gogoi’s residence Office from August 2018 and she has provided in her Affidavit threadbare details of the way she was allegedly harassed by the Sitting Chief Justice of India Shri Gogoi. Her portion of Affidavit, discussing the incident of 10th and 11th October 2018 is as under:
“Though I usually wear a uniform of black and white clothing, on that day since it was the first day of Navratri, I had worn an orange kurta and dupatta. The CJI referring to my clothes, told me, “You are looking pretty good today.” The CJI asked me to come and stand next to him, he got up from his chair. The CJI then asked me, “What can you do for me?”, I kept repeating that I was very grateful and that everybody in my family was very happy. The CJI then slid his hand from the back of my head, along my back to my hipline, till my lower back. I immediately froze and my body stiffened. I think the CJI sensed this, and so he immediately pulled both my cheeks, like one would do to a child. He told me that he is like this with his daughter too.”
“CJI said your whole family must be very happy. He told me that “If you put on some weight you will look good…”. The CJI once again asked me, “So, what can you do for me”. He asked me whether I have written anything down; I showed him a notepad on which I had written how grateful I was…The CJI read the note. He then got up from his chair and walked across and came and stood to my left. Since he was standing I too stood up as I could not continue sitting when the CJI is standing. He took my notepad from my hands and put it aside on the desk, he then took my hands into his and told me that my hands smell nice, he then pinched my cheeks, he then put his arms around my waist from the front, he said, “I want this from you”. When I had stood up I had put my hands behind my back. He hugged me around the waist, and touched me all over my body with his arms and by pressing his body against mine, and did not let go. He told me “hold me”, he did not let go of me despite the fact that I froze and tried to get out of his embrace by stiffening and moving my body away. Since he did not stop forcibly hugging me, I was forced to push him away from me with my hands. When I pushed him away, he hit his head against a bookshelf/cabinet on my left. My first thought was why would the CJI think he can do something like this to me. I immediately left the room and was in a state of complete shock and was unable to think clearly after this. I sat at my desk.”
Response to the Allegation: The Secretary-General of Hon’ble Supreme Court responded by saying that the allegations against the Sitting Chief Justice of India Shri Gogoi are completely false and scurrilous. The Secretary-General of the Hon’ble Supreme Court further stated that the woman was dismissed from the services as per the procedure. He further added that the services of her brother-in-law was terminated as his performance conduct were not satisfactory. The Secretary-General of Hon’ble Supreme Court further stated that the woman was dismissed from her services as per the procedure. The Secretary-General of Hon’ble Supreme Court also talked about the Criminal Complaint pending against the woman as there is a case of bribery. According to the Secretary-General of Hon’ble Supreme Court, the woman’s family has criminal antecedents and there were two cases against her filed in Hari Nagar police station. The Secretary-General of Hon’ble Supreme Court also termed the allegations against the Sitting Chief Justice of India Shri Gogoi as an after-thought and further stated that the woman was transferred out of the Sitting Chief Justice of India Shri Gogoi’s home office because there were complaints made against her by the Secretary of CJI to the Secretary-General on account of her inappropriate behavior. The Secretary-General of Hon’ble Supreme Court further stated that the allegations are made as a pressure tactic to come out of the various proceedings which have been initiated under a law against the woman and her family for their wrong doings.
RESPONSE OF SUPREME COURT OF INDIA; UNION OF INDIA AND MEDIA: Soon after the complaint came out in public, CJI constituted a 3 judge bench which included CJI as well and disposed off the PIL. Hon’ble CJI termed the allegation as a part of a bigger plot to deactivate him and also made an emotional appeal based on his austerity and meager savings. The union of India, as well as the Registry of Supreme Court of India, gave an impression that entire government machinery, as well as the Supreme Court, stands behind the CJI. The allegations were termed as an attack on the judiciary. The report in various sections of media made a variety of speculation. However, there is no point in discussing the same as the same is without any concrete evidence and is more in the nature of presumption rather than based on hard facts or any established principles of law.
Thereafter, a Committee of 3 sitting judges of Supreme Court was formed which called the complainant and after hearing her and CJI closed the matter and gave clean chit to CJI as they found no substance in the allegation of the complainant.
LEGAL PRECEDENTS: Vishakha Guidelines (Vishaka and Ors. v. State of Rajasthan & Ors. [JT 1997 (7) SC 384])Concerning sexual harassment in the workplace can be considered as the basic piece of the document dealing with a situation like the aforesaid.The norms laid down by Hon’ble Supreme Court in the case of Vishaka consist of all basis on which the issues related to sexual harassment at workplace needs to be tackled and handled and thus, the Vishaka Guidelines is a benchmark, based on which the allegations of sexual harassment needs to be tackled and taken care of.
The said Guidelines provide for duties of the employer and other responsible persons in the workplace to provide procedures for resolutions, settlement or prosecution of acts of sexual harassment by taking all steps required. Keeping that in mind, in the present case, was it not the duty of the Hon’ble Supreme Court of India to set up a mechanism for the resolutions, settlement or prosecution in the alleged cases of sexual harassment at the workplace? The said Guidelines also provide for preventive steps, criminal proceedings as well as disciplinary actions that are required to be taken in case of any proven sexual misconduct. However, in the present case, we are only concerned with allegations as to what should be the mechanism by which the allegations have to be tacked if it is labeled against the Sitting Chief Justice of India who is looked upon by one and all as a “Dharmaraja” on the chair. There is a provision for “Complaint Committee” as per Vishakha guidelines and certainly, that is something which was/is required to be done even in the present case in a true sense of the term. Hon’ble Supreme Court of India formed a Committee to look into the allegations labeled against the Sitting Chief Justice of India Shri Gogoi. However, the said Committee was formed by the Sitting Chief Justice of India Shri Gogoi himself and on this account, a question can be raised with regard to its impartiality. In fact, the Committee could have been constituted either by the next three senior Judges or even by President of India in consultation with the next three senior Judges of Hon’ble Supreme Court of India. Further, in the present case, Sitting Chief Justice of India Shri Gogoi, himself, participated in the hearing when, for the first time, the matter was taken by the Court. That also is a wrong precedent and should not have been allowed. Rightly or wrongly, once an allegation has been made, the concerned party should not deal with the issues involved in any manner so as to raise any doubt with regard to impartiality and so as to cause any fear in the mind of the alleged victim. Further, in the present case, the hearing happened in a very secluded manner and it was not a public hearing. Further, the alleged victim was not allowed to get representation by a lawyer which is a fundamental right of a victim in any such cases. Thus, it will not be wrong to say that a Historical Blunder has been committed and at the same time, a Historical Opportunity has been lost to set the things right in its correct spirit so as to handle the allegations of sexual harassment at the top echelons of Judiciary and which could have been a milestone something similar to Vishaka Guidelines for generation to come. Sadly, that was not to happen and the knee jerk reaction and the manner in which the entire episode was handled have only caused a loss to the Nation which cannot be fathomed at this juncture. Imagine a question which comes to our mind as to why Vishaka Guidelines were not followed in the present case when the allegations of sexual harassment were labeled against the Hon’ble Chief Justice of India? Article 14 of Constitution of India deals with equality of law and to the best of my understanding, other than the sitting President and Governor, nobody has got any special privilege as far as Indian Penal Code and Criminal Procedure Code are concerned. It is also true that in the case of K. Veeraswami V. Union of India & Ors., 1991 (3) SCC 655, a Constitution of Bench of the Hon’ble Supreme Court held that no criminal case shall be registered u/s 154 of Cr.P.C against Judge of the High Court, Chief Justice of High Court or Judge of Supreme Court unless the Chief Justice of India is consulted in the matter. In the same Judgement, it has been held that if the Chief Justice of India himself is a person against whom an allegation of criminal misconduct is received, then the Government shall consult any other Judges or Judges of the Hon’ble Supreme Court. However, the said Judgment was dealing with the Prevention of Corruption Act, 1947 and certainly, the views would have been different in the matter of allegation of sexual harassment at the Workplace. More importantly, this was a golden opportunity wherein broad guidelines could have been laid down by the Hon’ble Supreme Court in tandum with Union of India so as to deal with issues governing top Judges of the country.
CONCLUSIONS: The allegations against the Sitting Chief Justice of India Shri Gogoi may be true or may not be true. It is also a fact that the allegations have created one of the most difficult situations for Sitting Chief Justice of India Shri Gogoi of his lifetime. It also true that the Sitting Chief Justice of India Shri Gogoi is entitled for his presumption innocence. However, the manner in which the entire episode has been handled and the manner in which it could have been handled is something which needs to be thought of. Enquiry by a Sitting Judge/Committee of Hon’ble Supreme Court cannot be a substitute for an investigation by Police/Investigating Agency. Article 361 of the Constitution provides immunity from criminal proceedings only in favor of Sitting President of India or a Sitting Governor of a State and the Judgement in case of K. Veeraswami V. Union of India & Ors., cannot be extended so as to enlarge the scope of Article 361 and so as to include the Chief Justice of India. Further, Vishakha guidelines read with Article 14 and Article 361 does not provide special privileges to Chief Justice of India in such a situation. Thus, it will not be incorrect to say that a golden opportunity has been missed and if only it was handled more judiciously it could have made Indian judiciary a real “Dharmaraj”. There is no doubt that a false accusation can destroy a man completely and certainly, Parliament and Court should take note of the controversy and protect Man’s right of equity and dignity too. However, at the same time, sexual harassment/misconduct, in any form, cannot be permitted by anybody, by anyone including top constitutional functionaries of the State. A clear-cut message in this regard could have been the best solution to all the allegations and which would have only strengthened the Judiciary. As it is said, ‘Be you ever so high, you are not above law’, should be the real guiding principle.
This is a time when lot of information is being gathered with the help of RTI Act. In fact there are specialists in the field popularly known as RTI Activists. Without going into the motive of the RTI Activists and thinking purely from legal point of view the question arises is “Does the information gathered under the RTI Act can be termed as a good evidence under the Evidence Act”.
The Information given under the RTI Act is in reply to the information sought by the Applicant under the RTI Act. Thus reply is correlated to the query and has to be in context of information that is sought. Thus any reply can never be read in isolation and has to be read along with the information sought. Further, the information may not be complete and it is only based on what is there in record and is in reply to the query and therefore it is important to have the copy of the documents based on which the information is provided. This certified copy can be termed as good evidence.
“The Court shall presume to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized there to by the Central Government:
Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed, the official character which he claims in such paper”.
Any person, who obtains the information under the Right to Information Act may either receive incomplete or complete information. It is, therefore, that when the informant is required to prove the case before any authority, or judicial authority, the same has to be proved completely by discharging the “onus”. The Public Information officer is parting with the information that is available on record, but the supplied information, although issued by the public authority remains “uncorroborated”.
Under Section 2 (j) (ii) of the RTI Act, the applicant can ask for certified copies of the documents or records. This certified copy of the document giving information can be admitted in the Court as Secondary Evidence. Note that under the RTI Act, the right to information includes the right to inspection of work, documents and records; taking notes, extracts or certified copies of documents or records; and taking certified samples of material held by the public authority or held under the control of the public authority. A citizen has a right to obtain information from a public authority in any relevant form including in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts provided such information is already stored in a computer or in any other device from which the information may be e-mailed or transferred to diskettes etc.
Information obtained under the RTI Act is part of the documents held by Public Authority, who are Gazetted officers. A certified copy of a document received by virtue of RTI Act is secondary evidence as provided under Section 63 of Evidence Act, 1872. It can be used as Secondary Evidence in Court, since it is part of the Government records and provided by Govt. Authorities, certified under Govt. Seal.
For information obtained under the Act to be admissible in Court, it is essential that a certified copy of the same is obtained. The information can become important evidence and it can be used for proving one’s stand in Court. Hence, it is advisable to base the pleading based on such information and ask the parties involved in a litigation to produce the document by way of discovery as provided under the provisions of Civil Procedure Code. Once, the documents are placed in compliance with the order of the court, it can be treated as authenticated and genuine documents. However, such documents placed on record by way of discovery are still required to be either proved or disproved as provided under the Indian Evidence Act. The “relevant fact” has to be established and proved.
These days the Courts are allowing information obtained under RTI as evidence in an increasing number of cases. In fact in one of the recent cases Madhya Pradehs High Court held that “certified copy of documents obtained under Right to Information Act 2005 can be admitted as secondary evidence” (Narayan Singh vs Kallaram @ Kalluram Kushwah decided on 19 March, 2015, Writ Petition No. 7860/2014) it held that Clause (f) of Section 65 of Evidence Act makes it crystal clear that a certified copy permitted under the Evidence Act or by any other law in force can be treated as secondary evidence. Right to Information Act, in courts view, falls within the ambit of “by any other law in force in India”. The definition of “right to information” makes it clear that certified copies of documents are given to the citizens under their right to obtain information. In courts view, the court below has rightly opined that the documents can be admitted as secondary evidence. Hon’ble Court did not see any merit in the contention that the documents obtained under the Act of 2005 are either true copies or attested copies. Court held that the definition aforesaid shows that the same are certified copies. Even otherwise, it is interesting to note that in Black Dictionary, the meaning of “certified copy” is as under:-
“Certified copy” – a copy of a document or record, signed or certified as a true copy by the officer to whose custody original is entrusted.”
The Court further held that “Since the documents are covered under section 65 of the Evidence Act, there was no need to compare the same with the originals”.
The IPC and other provisions of the IT Act, especially after the 2008 amendment, provide enough safeguards against defamation, intentional insult leading to breaching the peace, incitement to commit offence, etc. Section 66A of IT Act was a tyrannical law as it gave ‘rulers’ a weapon to misuse and deprive citizens of their personal liberty. Let’s not forget that Ruling party and Opposition members routinely say unflattering things about each other. The basic idea behind freedom of speech is to allow divergent critical views without looking into whether people are annoyed or inconvenienced. The real sufferers were general Public at large. The declaration of unconstitutionality of Section 66 A of IT Act by Apeax Court of our country has preserved the sanctity of freedom of Speech and expression (with reasonable restrictions) as provided under Article 19 (1) (a) as well as right to life and liberty as provided under Article 21 of the Constitution of India.
A pre-nuptial agreement or prenup, as it is commonly called, is a contract entered into by people who are planning to get married. Its content can vary widely, but commonly includes provisions for the division of property and assets should the couple divorce and any rights to spousal support during or after the dissolution of marriage.
While this concept is more prevalent in Western countries it is still not very popular in India because marriage as an institution is considered a pious and sacred bond and getting into an agreement prior to marriage does not goes well with the Indian society. Also, opting for such agreements invites social stigma that the couple shares low commitment, and anticipation of divorce even before marriage is both, bad omen and unromantic. Nevertheless, the global publicity about celebrity prenuptial agreements is encouraging people to consider the idea in India. It is therefore essential to understand that while prenuptial agreements might be a valuable way for parties to express their intention concerning the nature of their financial relationship; it is not possible to assure or even to expect that such agreed terms will be upheld in an Indian court in its entirety. But then, is it not a necessity in post modern society where marriage as an institution has received a major jolt in the light of acceptance of living relationship by a section of Society and also by judiciary?
There appears to be no concluding case law in India on the topic of prenups or postnups and it will not be incorrect to say that Apex court of law is yet to give its final word on it. Let us make an effort to understand the views of various High Courts as far as the legal standing of prenups is concerned. The Hon’ble High Court of Calcutta in the case of Tekait Mon Mohini Jemadai vs. Basanta Kumar Singh had held that though marriage under the Hindu Law is a contract, it is also a sacrament, it is more religious than secular in character; the union is indissoluble, for it is a “union of flesh with flesh, bone with bone.” The Hon’ble Court went to the extent of stating in details that ‘prenup is opposed to public policy’. According to the Hon’ble Court, such contract seems to be not only inconsistent with the theory of the relation between husband and wife according to the Hindu Law, but against public policy. Similar view was also taken by the Hon’ble High Court of Orissa and High Court of Madras. Hon’ble High Court of Orissa in the case of Sirbataha Barik v. Musamat Padma held that prenup is opposed to Hindu law and also opposed to public policy and thus, it is not a valid contract. Similarly, the Hon’ble High Court of Madras in the case of A.E. Thirumal Naidu v. Rajammal held that under the pre-nupital agreement between husband and wife to live separately from each other was invalid even if there is an agreement to that effect because as per the Hon’ble Court, it is forbidden under the Hindu law. The Hon’ble Court went to the extent of declaring prenup as opposed to public as held by Calcutta High Court and Orissa High Court. However, in certain aspects of personal law and in some cases Hon’ble Court has taken a lenient view whereby the Hon’ble court has not dismissed prenup totally and thus, the Hon’ble Court of Calcutta in the case of Sm. Sandhya Chatterjee vs. Salil Chandra Chatterjee has held “ it is just and desirable that they should live separately and comply with terms of agreement entered into between them – that will be beneficial to their interest as also their son living with mother – agreement not opposed to public policy and enforceable.” However, the Hon’ble Court in this case was dealing with the agreement entered into by the married couple and not strictly speaking between the couple before entering into marriage. However, in one of the cases dealing with Income Tax, the Hon’ble High Court of Calcutta had the occasion to deal with the prenup and in that case, the Hon’ble Court allowed the appeal on the basis of prenup and thus, held the prenup to be valid and legal. In this particular case between Commissioner of Income Tax v. Mansukhrai More, the Income Tax Tribunal upheld the assessee’s contention and directed exclusion of income from assessee’s property’s total income on the ground that it was transfer of property not out of love or natural affection but in fulfillment of obligations undertaken under pre-nupital agreement and it conveyed property in trust for benefit of minor children. The Hon’ble High court held that “Tribunal was justified in accepting existence and genuineness of pre-nupital agreement”. In another case, Hon’ble High Court of Jammu & Kashmir had an occasion to deal with prenup in the case of Mohd. Khan v. Mst. Shahmali. In this particular case, pre-nupital agreement was executed between the groom and bride’s father. In this case, the first appeal court held that “the agreement was not in any way opposed to the Muslim Law and was not in any way unconscionable. The violation of the condition by husband entitled the wife to seek divorce from the husband.” In this particular case, the issue that came up for hearing was that ‘if in the pre-nupital agreement the son-in-law binds himself to pay a specified sum as token money, spent by his father in law on the marriage on his running away from the house and deserting his wife, then on the happening of this contingency, if the father calls to pay the specified money, then in that case it would not constitute a doctrine opposed to Muslim law’. The Hon’ble Court upheld that position of Appeal Court and further held that “an anti-nupital agreement by a Muslim husband that he would pay separate maintenance to his wife in case of disagreement, and that the wife would have power to get herself divorced, in case of the failure of husband to pay the amount was not opposed to the public policy and was enforceable under the Muslim law.”
However, as stated before, the issues are still not clear and the issues need further churning before we reach to some conclusion. Thus, it will not be entirely incorrect to say that the court has not yet finalized its opinion as far as prenup is concerned and the issue is still wide open. Critically, the Supreme Court of India which is vested with extremely broad power to do justice between the parties and which has been quite active in matters concerning the grounds for divorce has taken no final stand on the matter of prenuptial agreements. However, it is to be noted that Laws like Protection of Woman from Domestic Violence Act and its interpretation by the Court across India has given an acceptance to the fact of ‘living relationships’ of couples without marriage and relationship which is ‘akin to marriage’. With Courts granting reliefs in the cases of living relationships and to relationship without marriage the concept of prenups has acquired an altogether new dimension. How do you deal with a couple, with regard to their rights and liabilities, who are residing together on the basis of prenuptial agreement?
As every concept has its own pros and cons this concept too have some advantages as well. The prenuptial agreement is characterized by great flexibility and can be tailormade to the specific needs of the couple. It is of great interest to note that sometime back there was a news item, stating that the Karnataka state women’s varsity ViceChancellor, Dr. Syeda Akhtar has called upon Muslim girls to sign prenuptial agreements. Dr. Akhtar said this (prenuptial agreement) is the crucial first step which will guarantee a Muslim woman’s rights throughout her marriage. So, a prenuptial agreement can be an important document to enable a woman to assert her rights and ensure that she is not done out of her just dues. A prenup can be successful ONLY if both the couple are scrupulously honest about their assets. Hiding information about assets can defeat the purpose of a prenup – a harmonious division of assets upon a divorce.
There are many other benefits of a prenup: it can protect a person from his/her partner’s debt loads; prevent one’s business/estate from getting divided; ensure spousal support in terms of monthly maintenance or alimony; guarantee remarriage rights and take care of child support and custody issues. All it requires is free consent and an honest declaration of individual assets and liabilities. But the crux of the matter lies elsewhere. Unlike most countries where a valid prenup is legal and binding when a couple separates, the Indian legal system does not fully recognize this pre-marital agreement. In fact, the concept is gaining some acceptance, especially in urban area, over the past few years but till date, it is not a completely legally valid pact as per the laws of our country.
Although all matrimonial laws in India have provisions for a wife’s maintenance and alimony (under the Hindu Marriage Act, however, either party can claim it), the amount payable always depends on the partners’ income, property and other circumstances. So it might have helped the couples who are fighting legal battle, had they declared their assets in the very beginning, reviewed their financial positions and agreed to a mutually acceptable division of wealth. This is the primary reason behind drawing up a prenup – so that a person may have a fair idea about what to give and what to receive if marriage goes kaput. In spite of lacking legal sanctity under Indian marital laws, a prenup can still be treated as a valid contract if a person and his/ her spouse consent to go by its terms and conditions. But then it will be more like divorce based on consent.
Another positive side of prenuptial agreement is that it may at least check some false prosecutions by unscrupulous Women, who are misusing Section 498A of IPC or Domestic Violence Act for blackmail and Extortion of money. That means, if both the parties are genuine, transparent and do not have any pre-planned ill mind, they will accept the same before marriage itself. The Prenuptials agreement stands a good chance of enforcement in India if the prenuptial agreement is certified by the court and this is probably possible under the “Special Marriage Act” where in the magistrate goes through all the documents and then declares the marriage based on those documents to be valid. It is therefore essential to understand that while prenuptial agreements might be a valuable way for parties in India to express their intention concerning the nature of their financial relationship; it is not possible to assure or even to expect that such agreed terms will be upheld in an Indian court.
Though divorce is quite common in India now, it is still not considered a possibility before the marriage and hence there is no thought of a pre-nuptial agreement. There is no talk of a pre-nuptial agreement at all as a way of a by-plan as far as the legislation is concerned. There may be a few people talking about the pre-nuptial agreement, but India is far from including it in it’s law and legislation plans. Even though we still have a long way to go before pre-nuptial agreements are implemented in India it is a way by which couples can protect their assets in case of a divorce. A pre-nuptial agreement helps resolve and simplify a lot of financial and property issues. Since the division of assets are already done before the marriage, implementing what has been decided before the marriage makes life simpler. It just comes down to dividing the assets as mutually decided by the couple and will save nasty arguments later. But a person could get a pre-nuptial agreement drafted abroad, marry in India according to Indian tradition but the agreement will be valid in that particular country only and not in india.
While the debate about its legal validity and advantages continues, it is better to look at the emotional and social feasibility of a prenup, which is often seen as a mark of mistrust or lack of commitment among couples even before marriage. One can’t change the society overnight but prenups are certainly getting popular in India, especially in the metro cities where about 10-15 per cent couples opt for some kind of pre-marriage Agreement as it gives them great peace of mind and makes them feel strong enough to handle all unforeseen circumstances. Although a very practical agreement, there are many who do not see the need for such a document. It, essentially, is an acceptance of the fact that marriage may not last. In other words, a person is giving up on his/her marriage before one even gets started. In fact, the couple, who are madly in love and who will soon vow that they will be together ‘always’, are expected to negotiate their own divorce settlement.
In conclusion it is perhaps wiser to go in for a prenuptial agreement that clearly states on a fair division of property, personal possessions and financial assets than fight over one’s favourite piece of furniture and crystal ware, later in the marriage. A well-drafted prenup can facilitate fairness, certainty and transparency in the treatment of marital or non-marital assets at a time when mutual anger may lead to misguided decisions. The law makers and the law regulators have to rise to the occasion and take in their stride the changing scenario. But then the issue arises as to how to handle the sacred ‘bandhan’ of seven lives sprinkled with ‘Teej’ and ‘Karva Chauth’!
The content of this document do not necessarily reflect the views / position of RKS Associate, but remains a probable view. For any further queries or follow up please contact RKS Associate at [email protected]